Post-Closing Purchase Price Adjustment. As promptly as possible, but in any event no later than the fifth (5th) Business Day following the final determination, in accordance with Section 2.5.3 and/or Section 2.5.4, of Company Indebtedness, Transaction Expenses, Transaction Bonus Payments, Working Capital, and Cash on Hand (respectively, the “Final Company Indebtedness”, “Final Transaction Expenses”, “Final Transaction Bonus Payments”, “Final Working Capital Amount,” and “Final Cash on Hand Amount”), a Purchase Price adjustment shall be made as follows: (a) if (i) the sum of (A) the Final Working Capital Amount, plus (B) the Final Cash on Hand Amount, minus (C) the Final Transaction Expenses, minus (D) the Final Transaction Bonus Payments, minus (E) the Final Company Indebtedness is less than (ii) the sum of (A) the Estimated Working Capital Amount, plus (B) the Estimated Cash on Hand Amount, minus (C) the Estimated Transaction Expenses, minus (D) the Estimated Transaction Bonus Payments, minus (E) the Estimated Company Indebtedness, then the Purchase Price will be reduced by an amount equal to such shortfall, and such shortfall amount shall be paid to the Buyer from the Escrow Account in accordance with the terms of the Escrow Agreement; or (b) if (i) the sum of (A) the Final Working Capital Amount, plus (B) the Final Cash on Hand Amount, minus (C) the Final Transaction Expenses, minus (D) the Final Transaction Bonus Payments, minus (E) the Final Company Indebtedness is greater than (ii) the sum of (A) the Estimated Working Capital Amount, plus (B) the Estimated Cash on Hand Amount, minus (C) the Estimated Transaction Expenses, minus (D) the Estimated Transaction Bonus Payments, minus (E) the Estimated Company Indebtedness, then the Purchase Price will be increased by an amount equal to such excess and the Buyer will pay such excess amount to the Sellers (in accordance with the Allocation Schedule) within five (5) Business Days after the determination of such excess amount by wire transfer of immediately available funds to the accounts specified by the Sellers’ Representative; provided that any payments in respect of Options shall be paid to the Company for further distribution to the Optionholders (in accordance with the Allocation Schedule), net of the amount, if any, required to be withheld under applicable Tax laws with respect to such payment.
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Samples: Stock Purchase Agreement (Healthsouth Corp), Stock Purchase Agreement (Healthsouth Corp)
Post-Closing Purchase Price Adjustment. As promptly as possible, but in any event no later than the fifth (5th) Business Day following the final determination, in accordance with Section 2.5.3 and/or Section 2.5.4, of Company Indebtedness, Transaction Expenses, Transaction Bonus Payments, Working Capital, and Cash on Hand (respectively, the “Final Company Indebtedness”, “Final Transaction Expenses”, “Final Transaction Bonus Payments”, “Final Working Capital Amount,” and “Final Cash on Hand Amount”), a Purchase Price adjustment shall be made as follows:
(a) if (i) the sum of (A) the Final Working Capital Amount, plus (B) the Final Cash on Hand Amount, minus (C) the Final Transaction Expenses, minus (D) the Final Transaction Bonus Payments, minus (E) the Final Company Indebtedness is less than (ii) the sum of (A) the Estimated Working Capital Amount, plus (B) the Estimated Cash on Hand Amount, minus (C) the Estimated Transaction Expenses, minus (D) the Estimated Transaction Bonus Payments, minus (E) the Estimated Company Indebtedness, then the The Purchase Price will be reduced by an amount equal to the Estimated Purchase Price, increased or decreased as set forth below:
(i) if the Working Capital exceeds the Estimated Working Capital, the amount of such shortfall, and such shortfall amount shall excess will be paid added to the Buyer Estimated Purchase Price;
(ii) if the Working Capital is less than the Estimated Working Capital, the amount of such deficit will be subtracted from the Escrow Account in accordance with Estimated Purchase Price;
(iii) without duplication, if the terms Funded Debt exceeds the Estimated Funded Debt, the amount of such excess will be subtracted from the Estimated Purchase Price;
(iv) without duplication, if the Funded Debt is less than the Estimated Funded Debt, the amount of such deficit will be added to the Estimated Purchase Price;
(v) without duplication, if the Seller’s Transaction Expenses exceeds the Estimated Seller’s Transaction Expenses, the amount of such excess will be subtracted from the Estimated Purchase Price;
(vi) without duplication, if the Seller’s Transaction Expenses is less than the Estimated Seller’s Transaction Expenses, the amount of such deficit will be added to the Estimated Purchase Price; and
(vii) that portion of the Escrow Agreement; orcost of any audit that is required to be borne by Seller pursuant to Sections 2.3(a) and 2.3(c) will be subtracted from the Estimated Purchase Price.
(b) if Within ten (i) the sum of (A) the Final Working Capital Amount, plus (B) the Final Cash on Hand Amount, minus (C) the Final Transaction Expenses, minus (D) the Final Transaction Bonus Payments, minus (E) the Final Company Indebtedness is greater than (ii) the sum of (A) the Estimated Working Capital Amount, plus (B) the Estimated Cash on Hand Amount, minus (C) the Estimated Transaction Expenses, minus (D) the Estimated Transaction Bonus Payments, minus (E) the Estimated Company Indebtedness, then the Purchase Price will be increased by an amount equal to such excess and the Buyer will pay such excess amount to the Sellers (in accordance with the Allocation Schedule) within five (510) Business Days after the final determination of such excess amount the Purchase Price (i.e., after either agreement of Seller and Buyer on the Closing Balance Sheet or final resolution of disputes in its respect in accordance with Section 2.4):
(i) if the Purchase Price exceeds the Estimated Purchase Price, Buyer will pay to Seller (on behalf of itself and on behalf of the owners of the U.S. Options) and to the 102 Trustee (on behalf of the beneficial owners of the Vested Options and Unvested Options but excluding owners of U.S. Options), by wire transfer of immediately available funds to the accounts specified bank account designated by Seller and 102 Trustee pursuant to Section 2.3(d), the Sellers’ Representative; provided that any payments in respect respective amount of Options shall be paid to the Company for further distribution to the Optionholders (such excess as calculated in accordance with the Allocation Schedule), net mechanism set forth in the First Closing Schedule and the Seller will pay (subject to provisions of Section 2.7 and corresponding provisions of the amountFirst Closing Schedule) to the Shareholders, owners of the U.S. Options, and the 102 Trustee (if any, required to be withheld under applicable Tax laws with respect to Shares purchased by Seller and which are still subject to the mandatory holding period under Section 102), within three Business Day following receipt of the excess by the Seller, by wire transfer of immediately available funds to the bank account designated by such paymentShareholders, owners of U.S. Options and 102 Trustee, the respective amount of such excess as calculated in accordance with the mechanism set forth in the First Closing Schedule; or
(ii) (ii) if the Purchase Price is less than the Estimated Purchase Price, (A) Seller will instruct the Escrow Agent to pay to Buyer out of the Escrow Funds, by wire transfer of immediately available funds to a bank account designated by Buyer, the amount of such deficit, and (B) to the extent that the amount of such deficit exceeds the Escrow Funds, Seller will pay to Buyer the amount of such excess by wire transfer of immediately available funds to a bank account designated by Buyer and the relevant provisions of the First Closing Schedule will apply.
Appears in 1 contract
Samples: Share Purchase Agreement (Idt Corp)
Post-Closing Purchase Price Adjustment. As promptly as possible, but in any event no later than (a) The Purchase Price paid by the fifth (5th) Business Day following Purchaser on the final determination, Closing Date in accordance with Section 2.5.3 and/or Section 2.5.4, CLAUSE 3.1 shall be subject to post-Closing adjustment ("POST CLOSING PURCHASE PRICE ADJUSTMENT") as described in this CLAUSE 3.2.
(b) As a result of Company Indebtedness, Transaction Expenses, Transaction Bonus Payments, Working Capital, and Cash on Hand (respectivelythe Post Closing Purchase Price Adjustment, the “Final Company Indebtedness”, “Final Transaction Expenses”, “Final Transaction Bonus Payments”, “Final Working Capital Amount,” and “Final Cash on Hand Amount”), a Purchase Price adjustment shall be made as followsadjusted to reflect any net difference ("DIFFERENCE") between the amount referred to at (i) below and the amount referred to at (ii) below:
(a) if (i) the sum of (A) net asset value calculated in accordance with the Final Working Capital Amount, plus (B) the Final Cash on Hand Amount, minus (C) the Final Transaction Expenses, minus (D) the Final Transaction Bonus Payments, minus (E) the Final Company Indebtedness is less than Corporate Separation Effective Date Balance Sheet; and
(ii) the sum net asset value of JPY 4,325 million (Amade up of JPY 495 million of capital and JPY 3,830 million of capital reserve) the Estimated Working Capital Amount, plus (B) the Estimated Cash on Hand Amount, minus (C) the Estimated Transaction Expenses, minus (D) the Estimated Transaction Bonus Payments, minus (E) the Estimated Company Indebtedness, then the Purchase Price will be reduced by an amount equal to such shortfall, and such shortfall amount shall be paid to the Buyer from the Escrow Account calculated in accordance with the terms Assumed Corporate Separation Balance Sheet attached hereto as SCHEDULE 18; with such Difference to be determined pursuant to CLAUSE 4.9.
(c) Subject to CLAUSE 3.2(d), the Post Closing Purchase Price Adjustment shall be made by way of the Escrow Agreement; or
Vendor (b) if the Difference is a negative amount), or the Purchaser (i) if the sum Difference is a positive amount), paying the other, the amount of (A) 51 % of the Final Working Capital Amount, plus (B) the Final Cash on Hand Amount, minus (C) the Final Transaction Expenses, minus (D) the Final Transaction Bonus Payments, minus (E) the Final Company Indebtedness is greater than (ii) the sum of (A) the Estimated Working Capital Amount, plus (B) the Estimated Cash on Hand Amount, minus (C) the Estimated Transaction Expenses, minus (D) the Estimated Transaction Bonus Payments, minus (E) the Estimated Company Indebtedness, then the Purchase Price will be increased by an amount equal to such excess and the Buyer will pay such excess amount to the Sellers (in accordance with the Allocation Schedule) within five (5) Business Days after the determination absolute value of such excess amount Difference (the "POST CLOSING ADJUSTMENT AMOUNT"), by wire transfer of in immediately available funds to the accounts specified bank account, designated by the Sellers’ Representative; provided that any payments in respect other party, no later than 7 Business Days after the Difference is determined pursuant to CLAUSE 4.9.
(d) The Post Closing Purchase Price Adjustment shall only be made by the relevant Party if the absolute value of Options the Difference is greater than JPY 10 million. The exact amount payable by the relevant Party as a result of the Post Closing Purchase Price Adjustment shall be paid to determined by rounding the Company for further distribution to the Optionholders (in accordance with the Allocation Schedule), net value of the amount, if any, required to be withheld under applicable Tax laws with respect to such payment.Post Closing
Appears in 1 contract
Samples: Share Purchase Agreement (Asyst Technologies Inc /Ca/)
Post-Closing Purchase Price Adjustment. As promptly as possible, but in any event no later than (a) On the fifth tenth (5th10th) Business Day business day following the final determinationcompletion and acceptance by each party hereto, in accordance with this Section 2.5.3 and/or Section 2.5.42.8, of Company Indebtedness, Transaction Expenses, Transaction Bonus Payments, Working Capital, and Cash on Hand a Final Statement (respectively, as defined below) of the “Final Company Indebtedness”, “Final Transaction Expenses”, “Final Transaction Bonus Payments”, “Final Working Capital Amount,” and “Final Cash of the Business (as defined below) as of the close of business on Hand Amount”), a Purchase Price adjustment shall be made as followsthe Closing Date:
(ai) if the Working Capital of the Business is less than $0 as of the Closing, then Buyer and Seller shall instruct Escrow Agent to pay to the Seller (ior such other Telos Seller as Seller may designate) cash in the amount of (A) the Holdback Cash less (B) the amount by which the Working Capital of the Business is less than $0; or
(ii) if the Working Capital of the Business is equal to or greater than $0 as of the Closing, then Buyer and Seller shall instruct Escrow Agent to pay to the Seller (or such other Telos Seller as Seller may designate) cash in an amount equal to the sum of (A) the Final Working Capital Amount, Holdback Cash plus (B) the amount by which the Working Capital of the Business is more than $0, which sum shall not exceed the total amount of the Working Capital Adjustment Cash. Any portion of the Working Capital Adjustment Cash not required to be distributed to the Telos Sellers pursuant to this Section 2.8 shall be returned to Buyer and Buyer and Seller shall instruct Escrow Agent to return such funds.
(b) The Final Cash Statement shall be prepared by Seller in the following manner:
(i) within thirty (30) days after the Closing Date, Seller shall deliver to Buyer the Final Statement, fairly and accurately presenting the Working Capital of the Business as of the close of business on Hand Amountthe Closing Date. The Final Statement shall be accompanied by a report setting forth a calculation, minus in reasonable detail, of the Working Capital of the Business, as reflected in the Final Statement, setting forth the value, determined in accordance with GAAP, of each Current Asset and Current Liability (as such terms are modified by Section 2.8(b)(iv));
(ii) following the Closing, each party shall give the other party hereto and any independent auditors and authorized representatives of such other party full access at all reasonable times to the properties, books, records and personnel of the Business in their possession, custody or control relating to periods prior to the Closing Date for purposes of preparing, reviewing and resolving any disputes concerning the Final Statement. Within forty-five (45) days following the delivery to Buyer of the Final Statement, Buyer shall notify Seller of any dispute of any item contained in the Final Statement, which notice shall set forth in reasonable detail the basis for such dispute (which may be based on the failure of any asset or liability to be valued accurately or in accordance with GAAP or the omission of any asset, or inclusion of any liability, that Buyer in good faith believes should be included or omitted in accordance with GAAP). If Buyer fails to notify Seller of any such dispute within such forty-five (45) day period, the Final Statement shall be deemed to be accepted by Buyer. In the event that Buyer shall so notify Seller of any dispute, Buyer and Seller shall cooperate in good faith to resolve such dispute as promptly as possible; and
(iii) if Buyer and Seller are unable to resolve any such dispute within thirty (30) days of Buyer’s delivery of such notice (the “Resolution Period”), then all amounts remaining in dispute shall be submitted to a “big four” independent accounting firm (the “Independent Accounting Firm”) selected by Seller and Buyer within ten (10) days after the expiration of the Resolution Period. If Seller and Buyer are unable to agree on the Independent Accounting Firm, then Buyer and Seller shall each have the right to request the American Arbitration Association to appoint the Independent Accounting Firm, which shall be a firm that has not had a material relationship with Telos Sellers or Buyer and/or its Affiliates within the past two (2) year period prior to the Closing. Each party agrees to execute, if requested by the Independent Accounting Firm, an engagement letter containing customary terms. All fees and expenses relating to the work, if any, to be performed by the Independent Accounting Firm shall be borne equally by Seller and Buyer. The Independent Accounting Firm shall act as an arbitrator to determine only those issues still in dispute and shall be limited to those adjustments, if any, that need be made to the Final Statement to comply with GAAP and the standards referred to in this Agreement. The Independent Accounting Firm’s determination shall be requested to be made within thirty (30) days of its selection, shall be set forth in a written statement delivered to Seller and Buyer and shall be final, binding and conclusive. The Final Statement, as may be modified by the resolution of any disputes by Buyer and Telos Sellers or by the Independent Accounting Firm, as applicable, shall be the “Final Statement.”
(iv) The term “Working Capital of the Business” means the value of Current Assets less the value of Current Liabilities; provided, that, for purposes of the calculation of Working Capital of the Business (A) interest not related to the SVB Credit Agreement or accrued salary of Xxxx Mar and Xxx XxXxxx shall be excluded from Interest Payable, (B) the effect of the payment or accrual of Transaction Expenses shall be excluded from the value of each line item affected thereby, (C) the Final Transaction Expensesvalue of the Cash and Investments line item shall be increased by the amount of the out-of-pocket cost, minus up to a maximum of $120,000 to Seller of the directors’ and officers’ Liability Insurance purchased in accordance with Section 7.5 and (D) the Final Transaction Bonus Payments, minus (Evalue of any Current Liability or portion thereof that is deemed an Excluded Liability pursuant to Section 2.1(f) the Final Company Indebtedness is less than (ii) the sum of (A) the Estimated Working Capital Amount, plus (B) the Estimated Cash on Hand Amount, minus (C) the Estimated Transaction Expenses, minus (D) the Estimated Transaction Bonus Payments, minus (E) the Estimated Company Indebtedness, then the Purchase Price will be reduced by an amount equal to such shortfall, and such shortfall amount shall be paid to the Buyer excluded from the Escrow Account in accordance with the terms of the Escrow Agreement; or
(b) if (i) the sum of (A) the Final Working Capital Amount, plus (B) the Final Cash on Hand Amount, minus (C) the Final Transaction Expenses, minus (D) the Final Transaction Bonus Payments, minus (E) the Final Company Indebtedness is greater than (ii) the sum of (A) the Estimated Working Capital Amount, plus (B) the Estimated Cash on Hand Amount, minus (C) the Estimated Transaction Expenses, minus (D) the Estimated Transaction Bonus Payments, minus (E) the Estimated Company Indebtedness, then the Purchase Price will be increased by an amount equal to such excess and the Buyer will pay such excess amount to the Sellers (in accordance with the Allocation Schedule) within five (5) Business Days after the determination of such excess amount by wire transfer of immediately available funds to the accounts specified by the Sellers’ Representative; provided that any payments in respect of Options shall be paid to the Company for further distribution to the Optionholders (in accordance with the Allocation Schedule), net of the amount, if any, required to be withheld under applicable Tax laws with respect to such paymentCurrent Liabilities.
Appears in 1 contract
Post-Closing Purchase Price Adjustment. As promptly as possible, but in any event no later than the fifth (5th) Business Day following the final determination, in accordance with Section 2.5.3 and/or Section 2.5.4, of Acquired Company Indebtedness, Transaction Expenses, Transaction Bonus Payments, Working Capital, and Cash on Hand (respectively, the “Final Acquired Company Indebtedness”, “Final Transaction Expenses”, “Final Transaction Bonus Payments”, “Final Working Capital Amount,” and “Final Cash on Hand Amount”), a Purchase Price adjustment shall be made as follows:
(a) if (i) the sum of (A) the Final Working Capital Amount, plus (B) the Final Cash on Hand Amount, minus (C) the Final Transaction Expenses, minus (D) the Final Transaction Bonus Payments, minus (E) the Final Acquired Company Indebtedness is less than (ii) the sum of (A) the Estimated Working Capital Amount, plus (B) the Estimated Cash on Hand Amount, minus (C) the Estimated Transaction Expenses, minus (D) the Estimated Transaction Bonus Payments, minus (E) the Estimated Acquired Company IndebtednessIndebtedness (the amount of such difference, the “Deficit”), then the Purchase Price will be reduced by an amount equal to such shortfallDeficit, and such shortfall amount Deficit shall be paid to the Buyer first from the Working Capital Escrow Account until exhausted and then from the Escrow Account Account, in each case in accordance with the terms of the Escrow Agreement; provided that, in the event that any amounts remain in the Working Capital Escrow Account after payment of the Deficit, Buyer and Sellers’ Representative shall cause the Escrow Agent to pay at the same time as the payment of the Deficit such amounts by wire transfer to the Sellers’ Representative for further distribution to the Reliant Sellers in accordance with the Allocation Schedule; or
(b) if (i) the sum of (A) the Final Working Capital Amount, plus (B) the Final Cash on Hand Amount, minus (C) the Final Transaction Expenses, minus (D) the Final Transaction Bonus Payments, minus (E) the Final Acquired Company Indebtedness is greater than (ii) the sum of (A) the Estimated Working Capital Amount, plus (B) the Estimated Cash on Hand Amount, minus (C) the Estimated Transaction Expenses, minus (D) the Estimated Transaction Bonus Payments, minus (E) the Estimated Acquired Company Indebtedness, then the Purchase Price will be increased by an amount equal to such excess excess, and the Buyer will pay such excess amount to the Sellers’ Representative for further distribution to the Reliant Sellers (in accordance with the Allocation Schedule) within five (5) Business Days after the determination of such excess amount by wire transfer of immediately available funds to the accounts account specified by the Sellers’ Representative; provided that any payments , and the Buyer and Sellers’ Representative shall cause the Escrow Agent to pay at the same time all amounts then contained in respect of Options shall be paid the Working Capital Escrow Account by wire transfer to the Company Sellers’ Representative for further distribution to the Optionholders (Reliant Sellers in accordance with the Allocation Schedule), net of the amount, if any, required to be withheld under applicable Tax laws with respect to such payment.
Appears in 1 contract
Post-Closing Purchase Price Adjustment. As promptly as possible, but in any event no later than the fifth (5th) Business Day following the final determination, in accordance with Section 2.5.3 and/or Section 2.5.4, of Company Indebtedness, Transaction Expenses, Transaction Bonus Payments, Working Capital, and Cash on Hand (respectively, the “Final Company Indebtedness”, “Final Transaction Expenses”, “Final Transaction Bonus Payments”, “Final Working Capital Amount,” and “Final Cash on Hand Amount”), a Purchase Price adjustment shall be made as follows:
(a) if (i) the sum of (A) the Final Working Capital Amount, plus (B) the Final Cash on Hand Amount, minus (C) the Final Transaction Expenses, minus (D) the Final Transaction Bonus Payments, minus (E) the Final Company Indebtedness is less than (ii) the sum of (A) the Estimated Working Capital Amount, plus (B) the Estimated Cash on Hand Amount, minus (C) the Estimated Transaction Expenses, minus (D) the Estimated Transaction Bonus Payments, minus (E) the Estimated Company Indebtedness, then the The Purchase Price will be reduced by an amount equal to the Estimated Purchase Price, increased and/or decreased as set forth below, as applicable:
(i) if the Working Capital as of the Effective Time exceeds the Estimated Working Capital, the amount of such shortfall, and such shortfall amount shall excess will be paid added to the Buyer Estimated Purchase Price; provided that in no event shall the excess added to the Estimated Purchase Price pursuant to this Section 2.5(a)(i) exceed the deficit subtracted from the Escrow Account in accordance with Base Amount pursuant to Section 2.2(c)(ii);
(ii) if the terms Working Capital as of the Escrow AgreementEffective Time is less than the Estimated Working Capital, the amount of such deficit will be subtracted from the Estimated Purchase Price;
(iii) if the Funded Debt as of the Effective Time is less than the Estimated Funded Debt, the amount of such deficit will be added to the Estimated Purchase Price;
(iv) if the Funded Debt as of the Effective Time exceeds the Estimated Funded Debt, the amount of such excess will be subtracted from the Estimated Purchase Price;
(v) if the Cash as of the Effective Time exceeds the Estimated Cash, the amount of such excess will be added to the Estimated Purchase Price;
(vi) if the Cash as of the Effective Time is less than the Estimated Cash, the amount of such deficit will be subtracted from the Estimated Purchase Price;
(vii) if the Buyer Capex Requirements as of the Effective Time is less than the Estimated Buyer Capex Requirements, the amount of such deficit will be subtracted from the Estimated Purchase Price; orand
(viii) if the Buyer Capex Requirements as of the Effective Time exceeds the Estimated Buyer Capex Requirements, the amount of such excess will be added to the Estimated Purchase Price. The Estimated Purchase Price as so increased and/or decreased, if and as applicable, is referred to as the “Revised Purchase Price.”
(b) if Within ten (i) the sum of (A) the Final Working Capital Amount, plus (B) the Final Cash on Hand Amount, minus (C) the Final Transaction Expenses, minus (D) the Final Transaction Bonus Payments, minus (E) the Final Company Indebtedness is greater than (ii) the sum of (A) the Estimated Working Capital Amount, plus (B) the Estimated Cash on Hand Amount, minus (C) the Estimated Transaction Expenses, minus (D) the Estimated Transaction Bonus Payments, minus (E) the Estimated Company Indebtedness, then the Purchase Price will be increased by an amount equal to such excess and the Buyer will pay such excess amount to the Sellers (in accordance with the Allocation Schedule) within five (510) Business Days after the final determination of such excess amount the Purchase Price: (i) if the Revised Purchase Price exceeds the Estimated Purchase Price, the Buyer will pay to the Seller, by wire transfer of immediately available funds to the accounts specified bank account designated by the Sellers’ RepresentativeSeller pursuant to Section 2.2, the amount of such excess, plus interest at a rate of seven percent (7%) per annum accruing from the Closing Date; provided that any payments in respect of Options shall be paid or (ii) if the Revised Purchase Price is less than the Estimated Purchase Price, the Seller will pay to the Company for further distribution Buyer, by wire transfer of immediately available funds to a bank account designated by the Optionholders (in accordance with Buyer, the Allocation Schedule)amount of such deficit, net of plus interest at the amount, if any, required to be withheld under applicable Tax laws with respect to such paymentrate stated above accruing from the Closing Date.
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Post-Closing Purchase Price Adjustment. As promptly as possible, but in any event no later than the fifth (5th) Business Day following the final determination, in accordance with Section 2.5.3 2.4.3 and/or Section 2.5.42.4.4, of Company Indebtedness, Transaction Expenses, Transaction Bonus Payments, Working Capital, and Cash on Hand Hand, Company Indebtedness and Transaction Expenses (respectively, the “Final Company Indebtedness”, “Final Transaction Expenses”, “Final Transaction Bonus Payments”, “Final Working Capital Amount,” and ”, “Final Cash on Hand Amount”, “Final Company Indebtedness,” and “Final Transaction Expenses), a the Closing Date Purchase Price adjustment shall be made adjusted as follows:
(a) if (i) the sum of (A) the Final Working Capital Amount, plus (B) the Final Cash on Hand Amount, minus (C) the Final Transaction ExpensesCompany Indebtedness, minus (D) the Final Transaction Bonus Payments, minus (E) the Final Company Indebtedness Expenses is less than (ii) the sum of (A) the Estimated Working Capital Amount, plus (B) the Estimated Cash on Hand Amount, minus (C) the Estimated Transaction ExpensesCompany Indebtedness, minus (D) the Estimated Transaction Bonus PaymentsExpenses, minus then (Ex) the Estimated Company Indebtedness, then the Closing Date Purchase Price will be reduced by an amount equal to such shortfall, and such shortfall which amount shall be paid to the Buyer from the Adjustment Escrow Account Funds in accordance with the terms of the Escrow AgreementAgreement by wire transfer of immediately available funds; provided, that, if the amount of the Adjustment Escrow Funds is insufficient to cover such shortfall, the Seller will pay an amount equal to the uncovered balance of such shortfall to the Buyer; and (y) if any of the Adjustment Escrow Funds remain after such payment (if any) to the Buyer, the Escrow Agent shall distribute such remaining Adjustment Escrow Funds, to the Seller; or
(b) if (i) the sum of (A) the Final Working Capital Amount, plus (B) the Final Cash on Hand Amount, minus (C) the Final Transaction ExpensesCompany Indebtedness, minus (D) the Final Transaction Bonus Payments, minus (E) the Final Company Indebtedness Expenses is greater than (ii) the sum of (A) the Estimated Working Capital Amount, plus (B) the Estimated Cash on Hand Amount, minus (C) the Estimated Transaction ExpensesCompany Indebtedness, minus (D) the Estimated Transaction Bonus PaymentsExpenses, minus then (Ex) the Estimated Company Indebtedness, then the Closing Date Purchase Price will be increased by an amount equal to such excess and the Buyer will pay such excess amount to the Sellers Seller, and (y) the Escrow Agent shall distribute the Adjustment Escrow Funds to the Seller. Upon determination of the Final Working Capital Amount, the Final Cash on Hand Amount, the Final Company Indebtedness and the Final Transaction Expenses pursuant to this Section 2.4, each of the Buyer and the Seller shall execute joint written instructions to the Escrow Agent instructing the Escrow Agent to disburse any then remaining undisputed portions of the Adjustment Escrow Funds in accordance with the Allocation Schedule) within five (5) Business Days after the determination of such excess amount by wire transfer of immediately available funds to the accounts specified by the Sellers’ Representative; provided that any payments in respect of Options shall be paid to the Company for further distribution to the Optionholders (in accordance with the Allocation Schedule), net of the amount, if any, required to be withheld under applicable Tax laws with respect to such paymentthis Section 2.4.5.
Appears in 1 contract
Samples: Securities Purchase Agreement (Carlisle Companies Inc)
Post-Closing Purchase Price Adjustment. As promptly (a) Within 90 days after the Closing Date, Buyer shall prepare and deliver to Seller a statement (the “Buyer Closing Statement”) setting forth in reasonable detail Buyer’s good faith calculation of the (i) actual Working Capital (“Actual Working Capital”), (ii) actual Cash and Cash Equivalents held by the Company as possibleof the Closing (such aggregate amount, but in any event no later than the fifth “Actual Cash”), (5thiii) Business Day following actual Indebtedness of the final determination, Company as of the Closing (“Actual Indebtedness”) and (iv) actual Transaction Expenses (“Actual Transaction Expenses”). The Buyer Closing Statement shall be prepared in accordance with the Accounting Principles.
(b) Following the conclusive determination as set forth in in Section 2.5.3 and/or Section 2.5.4, 2.04(c) of Company Indebtedness, Transaction Expenses, Transaction Bonus Payments, the Actual Working Capital, and Cash on Hand Capital (respectivelysuch amount as so determined, the “Final Company Working Capital”), the Actual Cash (such amount as so determined, the “Final Cash”), the Actual Indebtedness (such amount as so determined, the “Final Indebtedness”), and the Actual Transaction Expenses (such amount as so determined, the “Final Transaction Expenses”, “Final Transaction Bonus Payments”, “Final Working Capital Amount,” and “Final Cash on Hand Amount”), a the Purchase Price adjustment shall be made as follows:
(a) if an amount equal to the Estimated Purchase Price, plus (i) the sum of (A) amount by which the Final Working Capital Amountexceeds the Estimated Working Capital, minus (ii) the amount by which the Final Working Capital is less than the Estimated Working Capital, plus (Biii) the amount by which the Final Cash on Hand Amountexceeds the Estimated Cash, minus (Civ) the amount by which the Final Transaction ExpensesCash is less than the Estimated Cash, minus (Dv) the amount by which the Final Transaction Bonus PaymentsIndebtedness exceeds the Estimated Indebtedness, minus plus (Evi) the amount by which the Final Company Indebtedness is less than (ii) the sum of (A) the Estimated Working Capital Amount, plus (B) the Estimated Cash on Hand AmountIndebtedness, minus (Cvii) the amount by which the Final Transaction Expenses exceed the Estimated Transaction Expenses, minus and plus (Dviii) the Estimated Transaction Bonus Payments, minus (E) the Estimated Company Indebtedness, then the Purchase Price will be reduced amount by an amount equal to such shortfall, and such shortfall amount shall be paid to the Buyer from the Escrow Account in accordance with the terms of the Escrow Agreement; or
(b) if (i) the sum of (A) the Final Working Capital Amount, plus (B) the Final Cash on Hand Amount, minus (C) which the Final Transaction Expenses, minus (D) the Final Transaction Bonus Payments, minus (E) the Final Company Indebtedness Expenses is greater less than (ii) the sum of (A) the Estimated Working Capital Amount, plus (B) the Estimated Cash on Hand Amount, minus (C) the Estimated Transaction Expenses, minus (D) the Estimated Transaction Bonus Payments, minus (E) the Estimated Company Indebtedness, then the Purchase Price will be increased by an amount equal to such excess and the Buyer will pay such excess amount to the Sellers (; in accordance with the Allocation Schedule) within five (5) Business Days after the determination of such excess amount by wire transfer of immediately available funds to the accounts specified by the Sellers’ Representative; provided that any payments in respect of Options shall be paid to the Company for further distribution to the Optionholders (in accordance with the Allocation Schedule), net of the amounteach case, if any, required to be withheld under applicable Tax laws with respect to such paymentapplicable.
Appears in 1 contract
Samples: Membership Interest Purchase Agreement (Sunworks, Inc.)
Post-Closing Purchase Price Adjustment. (a) As promptly as possiblepracticable after the OpCo Closing, but in any no event later than November 30, 2020, OpCo Purchaser will prepare and deliver to PropCo Purchaser a statement (the “Closing Statement”) setting forth OpCo Purchaser’s calculation of the October EBITDA, Closing Cash, November Non-Operating Costs, the Inventory Amounts, the Actual Inventory Shrink Factors and the changes in each from the amounts set forth in the Estimated Closing Statement. If the Closing Statement is not delivered to PropCo Purchaser by 11:59 p.m. Eastern Time on November 30, 2020, then the Estimated October EBITDA, the Estimated Closing Cash, the Proposed November Non-Operating Costs or the Company Inventory Amounts, as applicable, set forth in the Estimated Closing Statement will constitute the Final October EBITDA, the Final Closing Cash, the Final November Non-Operating Costs, and the Final Inventory Amounts and will be final, conclusive and binding upon, and non-appealable by, the Parties. Notwithstanding the foregoing, if OpCo Purchaser fails to deliver the Closing Statement by 11:59 p.m. Eastern Time on November 30, 2020, PropCo Purchaser shall have the right to deliver an Objection Notice to OpCo Purchaser no later than December 30, 2020 with respect to the fifth amounts set forth on the Estimated Closing Statement, and if such Objection Notice is delivered, the provisions of Section 2.9(d) through 2.9(j) shall apply.
(5thb) Business Day following Each of the final determinationOctober EBITDA, Closing Cash, the November Non-Operating Costs, the Inventory Amounts and the Actual Inventory Shrink Factors (i) will be determined in accordance with Section 2.5.3 and/or Section 2.5.4the definitions set forth in this Agreement and GAAP (applied on a consistent basis) and (ii) (A) will not include any changes in assets or liabilities as a result of purchase accounting adjustments and (B) will be based on facts and circumstances as they exist as of the OpCo Closing and will exclude the effects of any act, decision, change in circumstances or event arising or occurring on or after the OpCo Closing; provided that any Type 1 recognized subsequent events under GAAP Codification Topic 855 shall be included in the Closing Statement up to the time that the OpCo Purchaser delivers the Closing Statement but will exclude the effects of any act, decision or any change in circumstances or event arising or occurring on or after the delivery of the Closing Statement by OpCo Purchaser. The parties agree that the purpose of preparing the Closing Statement and determining the Final OpCo-Company IndebtednessClosing Date Payment (as defined below) is solely to accurately measure October EBITDA, Transaction ExpensesClosing Cash, Transaction Bonus PaymentsNovember Non-Operating Costs, Working CapitalInventory Amounts and Actual Inventory Shrink Factors based on the facts and circumstances that exist as of the Measurement Time, and Cash that such process is not intended to permit the introduction of principles, policies, practices, procedures, methodologies, classifications, methods, conventions, assumptions, judgments or estimation techniques that are different from GAAP (applied on Hand a consistent basis) or as set forth in this Agreement.
(respectively, the “Final Company Indebtedness”c) As used herein, “Final Transaction Expenses”, “Final Transaction Bonus Payments”, “Final Working Capital Amount,OpCo-Company Closing Date Payment” and “Final Cash on Hand Amount”), means a Purchase Price adjustment shall be made as follows:
(a) if (i) the sum of cash payment in an amount equal to (A) the Final Working Capital Amountsix hundred ninety-two million dollars ($692,000,000), plus (B) the Final Cash on Hand Payoff Amount, minus plus (C) fifty percent (50%) of the amount (if any) by which Final Transaction ExpensesOctober EBITDA exceeds the Target October EBITDA, minus less (D) fifty percent (50%) of the amount (if any) by which Target October EBITDA exceeds Final Transaction Bonus PaymentsOctober EBITDA, minus less (E) Final Closing Cash, less (F) Final November Non-Operating Costs, less (G) fifty percent (50%) of the Final Company Indebtedness is less than amount (iiif any) by which the Actual Shrink Amount exceeds the sum of (Ax) the Estimated Working Capital Amount, Shrink Amount plus (By) the Estimated Cash on Hand Amount, minus thirty-five million dollars (C) the Estimated Transaction Expenses, minus (D) the Estimated Transaction Bonus Payments, minus (E) the Estimated Company Indebtedness, then the Purchase Price will be reduced by an amount equal to such shortfall, and such shortfall amount shall be paid to the Buyer from the Escrow Account in accordance with the terms of the Escrow Agreement; or
(b) if (i) the sum of (A) the Final Working Capital Amount, plus (B) the Final Cash on Hand Amount, minus (C) the Final Transaction Expenses, minus (D) the Final Transaction Bonus Payments, minus (E) the Final Company Indebtedness is greater than (ii) the sum of (A) the Estimated Working Capital Amount, plus (B) the Estimated Cash on Hand Amount, minus (C) the Estimated Transaction Expenses, minus (D) the Estimated Transaction Bonus Payments, minus (E) the Estimated Company Indebtedness, then the Purchase Price will be increased by an amount equal to such excess and the Buyer will pay such excess amount to the Sellers (in accordance with the Allocation Schedule) within five (5) Business Days after the determination of such excess amount by wire transfer of immediately available funds to the accounts specified by the Sellers’ Representative; provided that any payments in respect of Options shall be paid to the Company for further distribution to the Optionholders (in accordance with the Allocation Schedule$35,000,000), net of the amount, if any, required to be withheld under applicable Tax laws with respect to such payment.
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Post-Closing Purchase Price Adjustment. As promptly Seller agrees that at 12:01 a.m. on the Closing Date, a computation of the applicable Purchased Assets and the applicable Assumed Liabilities in the manner set forth below shall result in the Buyer having acquired “Tangible Net Equity” (as possibledefined below) of no less than Seven Hundred Fifty-Eight Thousand Five Hundred Eighty-Five and 00/100 Dollars ($758,585.00) (the “Net Equity Floor”), but in any event and “Net Working Capital” (as defined below) of no later less than the fifth Two Hundred Thousand and 00/100 Dollars (5th$200,000.00) Business Day following the final determination(“Working Capital Floor”), each calculated in accordance with GAAP, applied on a basis consistent with the Buyer’s historical accounting practices. Such amounts shall be determined and such requirements and ratios calculated based upon the Closing Balance Sheet described in Section 2.5.3 2.07. If (i) Tangible Net Equity at 12:01 a.m. on the Closing Date is less than the Net Equity Floor, and/or Section 2.5.4(ii) Net Working Capital at 12:01 a.m. on the Closing Date is less than the Working Capital Floor, then the Purchase Price shall be reduced, dollar-for-dollar, by a dollar amount equal to the amount of Company Indebtedness, Transaction Expenses, Transaction Bonus Payments, Working Capital, and Cash on Hand cash which would be required to bring both such requirements into compliance (respectivelyhereinafter, the “Final Company Indebtedness”, “Final Transaction Expenses”, “Final Transaction Bonus Payments”, “Final Working Capital Amount,” and “Final Cash on Hand AmountPost-Closing Purchase Price Reduction”), a Purchase Price adjustment shall be made as follows:
(a) if . If (i) Tangible Net Equity at 12:01 a.m. on the sum Closing Date exceeds the Net Equity Floor, and (ii) Net Working Capital at 12:01 a.m. on the Closing Date exceeds the Working Capital Floor, then the Purchase Price shall be increased, dollar-for-dollar, by a dollar amount equal to the lesser of (A) the Final Working Capital Amountamount by which the Tangible Net Equity exceeds the Net Equity Floor, plus or (B) the Final Cash on Hand Amountamount by which the Net Working Capital exceeds the Working Capital Floor (hereinafter, minus (C) the Final Transaction Expenses, minus (D) “Post-Closing Purchase Price Increase,” and referred to herein alternatively with the Final Transaction Bonus Payments, minus (E) Post-Closing Purchase Price Reduction as a “Post-Closing Purchase Price Adjustment”). If the Final Company Indebtedness Post-Closing Purchase Price Reduction results in a decrease in the Purchase Price which is less than (ii) the sum amount of (A) the Estimated Working Capital Amount, plus (B) the Estimated Cash on Hand Amount, minus (C) the Estimated Transaction Expenses, minus (D) the Estimated Transaction Bonus Payments, minus (E) the Estimated Company IndebtednessSecond Payment, then the Purchase Price will amount of the Second Payment to be paid by Buyer to Seller in accordance with Section 2.02(b) shall be reduced by an the amount equal of the Post-Closing Purchase Price Reduction. If the Post-Closing Purchase Price Reduction is greater than the amount of the Second Payment, then Buyer shall not be required to such shortfall, and such shortfall amount shall be paid make the Second Payment to the Buyer from the Escrow Account Seller in accordance with Section 2.02(b), and Seller shall pay to Buyer, within three (3) business days following the terms final determination of the Escrow Agreement; or
(b) if (i) the sum of (A) the Final Working Capital Amount, plus (B) the Final Cash on Hand Amount, minus (C) the Final Transaction Expenses, minus (D) the Final Transaction Bonus Payments, minus (E) the Final Company Indebtedness is greater than (ii) the sum of (A) the Estimated Working Capital Amount, plus (B) the Estimated Cash on Hand Amount, minus (C) the Estimated Transaction Expenses, minus (D) the Estimated Transaction Bonus Payments, minus (E) the Estimated Company Indebtedness, then the Post-Closing Purchase Price will be increased by an amount equal to such excess and the Buyer will pay such excess amount to the Sellers (in accordance with the Allocation Schedule) within five (5) Business Days after the determination of such excess amount Reduction, by wire transfer of immediately available funds to the accounts specified account number designated by Buyer, the Sellers’ Representative; provided that any payments in respect of Options shall be paid to amount by which the Company for further distribution to Post-Closing Purchase Price Reduction exceeds the Optionholders (in accordance with the Allocation Schedule), net of the amount, if any, required to be withheld under applicable Tax laws with respect to such payment.Second Payment. If there is a Post-
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Post-Closing Purchase Price Adjustment. As promptly The Proposed Price Components set forth in the Proposed Closing Statement shall be adjusted as possible, but in any event no later than the fifth (5th) Business Day following necessary upon the final determination, resolution of all disputed matters in accordance with this Section 2.5.3 and/or Section 2.5.42.5 and such amounts as so adjusted shall be final, binding, conclusive and nonappealable for all purposes of Company Indebtedness, Transaction Expenses, Transaction Bonus Payments, Working Capital, and Cash on Hand this Agreement (respectivelyas adjusted, the “Final Company IndebtednessClosing Statement”). The Purchase Price shall be recalculated substituting the Final Net Working Capital for the Estimated Net Working Capital in Section 2.2(b) or Section 2.2(e), as applicable, the Final Cash Balance for the Estimated Closing Date Cash in Section 2.2(c), the Final Related Party Receivables Amount for the Estimated Related Party Receivables Amount in Section 2.2(d), the Final Closing Date Indebtedness for the Estimated Closing Date Indebtedness in Section 2.2(Q, the Final Related Party Payables Amount for the Estimated Related Party Payables Amount in Section 2.2(g), and the Final Transaction Expenses for the Estimated Transaction Expenses in Section 2.2(h) (such recalculated Purchase Price, the “Final Transaction Expenses”, “Final Transaction Bonus Payments”, “Final Working Capital Amount,” and “Final Cash on Hand AmountPurchase Price”), a . If the Final Purchase Price adjustment is greater than the Estimated Purchase Price, then the sum of such difference and Interest shall be made as follows:
(a) if (i) paid by Buyer to Seller. Ifthe Estimated Purchase Price is greater than the Final Purchase Price, then the Escrow Agent shall pay out of the Escrow Funds to Buyer an amount in cash equal to the sum of (Ax) such difference and (y) Interest accruing thereon; provided, however, that, if such sum exceeds $2 million, at the Final Working Capital Amountelection of Buyer, plus (BSeller shall pay Buyer the amount of such excess. All payments pursuant to this Section 2.5(c) the Final Cash on Hand Amount, minus (C) the Final Transaction Expenses, minus (D) the Final Transaction Bonus Payments, minus (E) the Final Company Indebtedness is less than (ii) the sum of (A) the Estimated Working Capital Amount, plus (B) the Estimated Cash on Hand Amount, minus (C) the Estimated Transaction Expenses, minus (D) the Estimated Transaction Bonus Payments, minus (E) the Estimated Company Indebtedness, then the Purchase Price will be reduced by an amount equal to such shortfall, and such shortfall amount shall be paid to the Buyer from the Escrow Account in accordance with the terms of the Escrow Agreement; or
(b) if (i) the sum of (A) the Final Working Capital Amount, plus (B) the Final Cash on Hand Amount, minus (C) the Final Transaction Expenses, minus (D) the Final Transaction Bonus Payments, minus (E) the Final Company Indebtedness is greater than (ii) the sum of (A) the Estimated Working Capital Amount, plus (B) the Estimated Cash on Hand Amount, minus (C) the Estimated Transaction Expenses, minus (D) the Estimated Transaction Bonus Payments, minus (E) the Estimated Company Indebtedness, then the Purchase Price will be increased by an amount equal to such excess and the Buyer will pay such excess amount to the Sellers (in accordance with the Allocation Schedule) made within five (5) Business Days after following the determination date that the Final Closing Statement becomes final, binding, conclusive and nonappealable for all purposes of such excess amount by wire transfer of immediately available funds to the accounts specified by the Sellers’ Representative; provided that any payments in respect of Options shall be paid to the Company for further distribution to the Optionholders (this Agreement in accordance with this Section 2.5, and, to the Allocation Schedule), net extent that such payment is to be made out of the amountEscrow Funds, if anySeller and Buyer shall, required within two (2) Business Days of such date, execute joint written instructions to the Escrow Agent instructing the Escrow Agent to make such payment within such five (5) Business Day period. For the purposes of this Section 2.5, “Interest” means interest from and including the Closing Date to but excluding the date of payment at a rate per annum equal to two percent, which shall be withheld under applicable Tax laws with respect payable at the same time as the payment to such paymentwhich it relates and shall be calculated on the basis of a year of 360 days and the actual number of days elapsed.
Appears in 1 contract
Samples: Stock Purchase Agreement (Bway Intermediate Company, Inc.)
Post-Closing Purchase Price Adjustment. As promptly as possible, but in any In the event no later than that the fifth (5th) Business Day following the final determination, in accordance with Section 2.5.3 and/or Section 2.5.4, of Company Indebtedness, Transaction Expenses, Transaction Bonus Payments, Working Capital, and Cash on Hand (respectively, the “Final Company Indebtedness”, “Final Transaction Expenses”, “Final Transaction Bonus Payments”, “Final --- -------------------------------------- Working Capital Amount,” and “Final Cash as reflected on Hand Amount”), a Purchase Price adjustment shall be made as follows:
(a) if (i) the sum of (A) the Final Working Capital Amount, plus (B) the Final Cash on Hand Amount, minus (C) the Final Transaction Expenses, minus (D) the Final Transaction Bonus Payments, minus (E) the Final Company Indebtedness Closing Balance Sheet is less than (ii) the sum of (A) the Estimated Working Capital Amount, plus (B) the Estimated Cash on Hand Amount, minus (C) the Estimated Transaction Expenses, minus (D) the Estimated Transaction Bonus Payments, minus (E) the Estimated Company IndebtednessTarget, then the Purchase Price will be reduced by an amount equal adjusted downward, on a dollar-for-dollar basis, to such shortfall, and such shortfall amount shall be paid to reflect the Buyer from the Escrow Account in accordance with the terms lesser of the Escrow Agreement; or
(b) if (i) the sum of (A) the Final decrease, if any, in Working Capital Amount, plus (B) as reflected on the Final Cash Closing Balance Sheet from the amount of Working Capital reflected on Hand Amount, minus (C) the Final Transaction Expenses, minus (D) the Final Transaction Bonus Payments, minus (E) the Final Company Indebtedness is greater than Preliminary Closing Balance Sheet or (ii) the sum of (A) the Estimated Working Capital Amount, plus (B) the Estimated Cash on Hand Amount, minus (C) the Estimated Transaction Expenses, minus (D) the Estimated Transaction Bonus Payments, minus (E) the Estimated Company Indebtedness, then the Purchase Price will be increased by an amount equal to such excess and the Buyer will pay such excess amount to the Sellers (in accordance with the Allocation Schedule) within five (5) Business Days after the determination of such excess amount by wire transfer of immediately available funds to the accounts specified by the Sellers’ Representative; provided that any payments in respect of Options shall be paid to the Company for further distribution to the Optionholders (in accordance with the Allocation Schedule), net of the amount, if any, required by which the Working Capital reflected on the Closing Balance Sheet is less than the Working Capital Target. Conversely, the Purchase Price will be adjusted upward, on a dollar-for dollar basis, to reflect the increase, if any, in the total Working Capital as reflected on the Closing Balance Sheet from the amount of Working Capital reflected on the Preliminary Closing Balance Sheet; provided, however, that in no event shall such upward adjustment exceed the total amount of any downward adjustment to the Purchase Price made pursuant to Section 2.6(b) above. The post-closing adjustment to the Purchase Price, if -------------- any, shall be withheld under applicable Tax laws with respect paid by the Sellers to Buyer from the Escrow Sum or by Buyer to the Sellers, as the case may be, in immediately available funds within ten (10) Business days of delivery of the Closing Balance Sheet, unless the Sellers dispute any items on the Closing Balance Sheet, in which case it shall be paid within ten (10) Business days after the Independent Accountants finally determine the disputed item(s), and Buyer delivers to the Sellers a Closing Balance Sheet modified to reflect such paymentdetermination.
Appears in 1 contract
Samples: Stock Purchase Agreement (Global Imaging Systems Inc)
Post-Closing Purchase Price Adjustment. As promptly (i) For purposes of determining any final adjustments to the Cash Consideration in accordance with the process specified in this Section 2.3(b):
(A) if the Final Closing Cash is greater than or less than the Estimated Closing Cash, there shall be a positive adjustment or negative adjustment to the Estimated Cash Consideration, respectively, in determining the Final Cash Consideration;
(B) if the Final Closing Indebtedness is greater than or less than the Estimated Closing Indebtedness, there shall be a negative adjustment or positive adjustment to the Estimated Cash Consideration, respectively, in determining the Final Cash Consideration;
(C) if the Final Selling Expenses are greater than or less than the Estimated Selling Expenses, there shall be a negative adjustment or positive adjustment to the Estimated Cash Consideration, respectively, in determining the Final Cash Consideration;
(D) if the Final Net Working Capital exceeds the Estimated Net Working Capital, then:
(i) if the Estimated Net Working Capital was equal to or greater than the Upper Collar, the excess of the Final Net Working Capital over the Estimated Net Working Capital shall be a positive adjustment to the Estimated Cash Consideration in determining the Final Cash Consideration,
(ii) if the Estimated Net Working Capital was less than the Upper Collar but greater than or equal to the Lower Collar and the Final Net Working Capital exceeds the Upper Collar, the excess of the Final Net Working Capital over the Upper Collar shall be a positive adjustment to the Estimated Cash Consideration in determining the Final Cash Consideration,
(iii) if the Estimated Net Working Capital was less than the Upper Collar but greater than or equal to the Lower Collar and the Final Net Working Capital is equal to or less than the Upper Collar, there shall be no adjustment to the Estimated Cash Consideration in determining the Final Cash Consideration,
(iv) if the Estimated Net Working Capital was less than the Lower Collar and the Final Net Working Capital is greater than the Upper Collar, an amount equal to the sum of (1) the excess of the Final Net Working Capital over the Upper Collar plus (2) the excess of the Lower Collar over the Estimated Net Working Capital shall be a positive adjustment to the Estimated Cash Consideration in determining the Final Cash Consideration,
(v) if the Estimated Net Working Capital was less than the Lower Collar and the Final Net Working Capital is greater than the Lower Collar but less than or equal to the Upper Collar, an amount equal to the excess of the Lower Collar over the Estimated Net Working Capital shall be a positive adjustment to the Estimated Cash Consideration in determining the Final Cash Consideration, and
(vi) if the Estimated Net Working Capital was less than the Lower Collar and the Final Net Working Capital is less than or equal to the Lower Collar, an amount equal to the excess of the Final Net Working Capital over the Estimated Net Working Capital shall be a positive adjustment to the Estimated Cash Consideration in determining the Final Cash Consideration;
(E) if the Estimated Net Working Capital exceeds the Final Net Working Capital, then:
(i) if the Estimated Net Working Capital was equal to or greater than the Upper Collar and the Final Net Working Capital is equal to or greater than the Upper Collar, the excess of the Estimated Net Working Capital over the Final Net Working Capital shall be a negative adjustment to the Estimated Cash Consideration in determining the Final Cash Consideration,
(ii) if the Estimated Net Working Capital was equal to or greater than the Upper Collar and the Final Net Working Capital is less than the Upper Collar but equal to or greater than the Lower Collar, the excess of the Estimated Net Working Capital over the Upper Collar shall be a negative adjustment to the Estimated Cash Consideration in determining the Final Cash Consideration,
(iii) if the Estimated Net Working Capital was greater than the Upper Collar and the Final Net Working Capital is less than the Lower Collar, an amount equal to the sum of (1) the excess of the Estimated Net Working Capital over the Upper Collar plus (2) the excess of the Lower Collar over the Final Net Working Capital shall be a negative adjustment to the Estimated Cash Consideration in determining the Final Cash Consideration,
(iv) if the Estimated Net Working Capital was less than the Upper Collar but greater than or equal to the Lower Collar and the Final Net Working Capital is equal to or greater than the Lower Collar, there shall be no adjustment to the Estimated Cash Consideration in determining the Final Cash Consideration,
(v) if the Estimated Net Working Capital was less than the Upper Collar but greater than or equal to the Lower Collar and the Final Net Working Capital is less than the Lower Collar, the excess of the Lower Collar over the Final Net Working Capital shall be a negative adjustment to the Estimated Cash Consideration in determining the Final Cash Consideration, and
(vi) if the Estimated Net Working Capital was less than the Lower Collar, the excess of the Estimated Net Working Capital over the Final Net Working Capital shall be a negative adjustment to the Estimated Cash Consideration in determining the Final Cash Consideration; and
(F) if the Final Net Working Capital is equal to the Estimated Net Working Capital, there shall be no adjustment to the Estimated Cash Consideration in determining the Final Cash Consideration.
(ii) The Purchaser shall deliver, or cause to be delivered, to the Securityholder Representative, as possiblesoon as practicable, but in any no event no later more than ninety (90) days after the fifth Closing Date, a preliminary statement prepared in good faith (5ththe “Preliminary Statement”) setting forth (x) the calculation of (A) the Net Working Capital Surplus, if any, (B) the Net Working Capital Deficit, if any, (C) the Closing Cash, (D) the Closing Indebtedness, and (E) the Selling Expenses, along with reasonable supporting detail to evidence the calculations of such amounts and (y) on the basis of the foregoing, a calculation of the Cash Consideration. The Preliminary Statement and all of the calculations set forth therein shall be prepared in accordance with the Agreed Accounting Principles. On the first (1st) Business Day following the final determinationdate that Purchaser delivers the Preliminary Statement to the Securityholder Representative, in accordance with Section 2.5.3 and/or Section 2.5.4, of Company Indebtedness, Transaction Expenses, Transaction Bonus Payments, Working Capital, Purchaser and Cash on Hand the Securityholder Representative shall execute and deliver to the Escrow Agent a joint written instruction instructing the Escrow Agent to release and distribute the amount (respectively, if any) (the “Final Company Indebtedness”, “Final Transaction Expenses”, “Final Transaction Bonus Payments”, “Final Working Capital Amount,” and “Final Cash on Hand Escrow Release Amount”), a Purchase Price adjustment shall be made as follows:
) equal to (a) if (i1) the sum of (A) the Final Working Capital Amount, plus (B) the Final Cash on Hand Escrow Amount, minus (C) the Final Transaction Expenses, minus (D) the Final Transaction Bonus Payments, minus (E) the Final Company Indebtedness is less than (ii) the sum of full amount (Aif any) that would be payable to Purchaser pursuant to Section 2.3(b)(v) if the Estimated Working Capital AmountPreliminary Statement were the Final Statement, plus (B) the Estimated Cash on Hand Amount, minus (C) the Estimated Transaction Expenses, minus (D) the Estimated Transaction Bonus Payments, minus (E) the Estimated Company Indebtedness, then the Purchase Price will be reduced by an amount equal to such shortfall, and such shortfall amount shall be paid to the Buyer from the Escrow Account in accordance with the terms of the Escrow Agreement; or
(b) if (i) the sum of (A) the Final Working Capital AmountPaying Agent, plus (B) the Final Cash on Hand Amount, minus (C) the Final Transaction Expenses, minus (D) the Final Transaction Bonus Payments, minus (E) the Final Company Indebtedness is greater than (ii) the sum of (A) the Estimated Working Capital Amount, plus (B) the Estimated Cash on Hand Amount, minus (C) the Estimated Transaction Expenses, minus (D) the Estimated Transaction Bonus Payments, minus (E) the Estimated Company Indebtedness, then the Purchase Price will be increased by an amount equal to such excess and the Buyer will pay such excess amount for further distribution to the Sellers (in respect of all Eligible Equity, in accordance with the Allocation ScheduleStatement, an updated version of which will be delivered by the Securityholder Representative to Purchaser and the Paying Agent in connection therewith. If the Escrow Release Amount is not a positive number, then Purchaser and the Securityholder Representative shall not deliver to the Escrow Agent such a joint written instruction and the Escrow Release Amount will be deemed to be zero ($0) within for all purposes under this Agreement.
(iii) The Securityholder Representative shall have forty-five (545) days to review the Preliminary Statement from the date of its receipt thereof (the “Review Period”). During the Review Period, the Securityholder Representative shall have reasonable access (including the right to make photocopies) during normal business hours to the books and records, personnel and advisors of the Company and the Subsidiary to the extent reasonably required in connection with such review. If the Securityholder Representative objects to any aspect of the Preliminary Statement, the Securityholder Representative must deliver a written notice of such objection, specifying in reasonable detail the items so disputed together with the basis for such dispute (the “Objection Notice”) to the Purchaser on or prior to the expiration of the Review Period. If the Securityholder Representative delivers an Objection Notice to the Purchaser prior to the expiration of the Review Period as provided in this Section 2.3(b), the Purchaser and the Securityholder Representative shall, for a period of thirty (30) days thereafter (the “Resolution Period”), attempt in good faith to resolve the matters contained therein, and any written resolution, signed by each of the Purchaser and the Securityholder Representative, as to any such matter shall be final, binding, conclusive and non-appealable for all purposes hereunder. In the event the Securityholder Representative does not deliver an Objection Notice to the Purchaser as provided in this Section 2.3(b) prior to the expiration of the Review Period, the Securityholder Representative shall be deemed to have agreed to the Preliminary Statement in its entirety, which Preliminary Statement or undisputed portions thereof (as the case may be) shall be final, binding, conclusive and non-appealable for all purposes hereunder.
(iv) If, at the conclusion of the Resolution Period, the Purchaser and the Securityholder Representative have not reached an agreement with respect to all disputed matters contained in the Objection Notice, then within ten (10) Business Days thereafter, the Purchaser and the Securityholder Representative shall submit for resolution those of such matters remaining in dispute to Xxxxx Xxxxxxxx LLP, or if such firm is unavailable or unwilling to so serve, to a mutually acceptable nationally recognized independent accounting firm (as the case may be, the “Neutral Arbitrator”). The Neutral Arbitrator shall act as an arbitrator to resolve (based solely on the applicable provisions of this Agreement and written presentations of the Purchaser and the Securityholder Representative and not by independent review) only those matters submitted to it in accordance with the first sentence of this Section 2.3(b)(iv). The Purchaser and the Securityholder Representative shall direct the Neutral Arbitrator to render a resolution of all such disputed matters within thirty (30) days after its engagement or such other period agreed upon in writing by the Purchaser and the Securityholder Representative. The resolution of the Neutral Arbitrator shall be set forth in a written statement delivered to each of the Purchaser and the Securityholder Representative and shall be final, binding, conclusive and non-appealable for all purposes hereunder. The Preliminary Statement, once modified and/or agreed to in accordance with this Section 2.3(b)(iv), shall become the “Final Statement,” and will determine the Closing Date Net Working Capital Amount (the “Final Net Working Capital”), the Closing Cash (the “Final Closing Cash”), the Closing Indebtedness (the “Final Closing Indebtedness”), and the Selling Expenses (the “Final Selling Expenses”), the calculation of which will produce the Cash Consideration as set forth in the Final Statement (referred to herein as the “Final Cash Consideration.”
(v) All fees and expenses relating to the work performed by the Neutral Arbitrator shall be borne by the Purchaser, on the one hand, and the Securityholder Representative, on the other hand, based upon the percentage which the portion of the contested amount not awarded to each Party bears to the amount actually contested by such Party, as determined by the Neutral Arbitrator. Except as provided in the preceding sentence, all other costs and expenses incurred by the Parties in connection with resolving any dispute hereunder before the Neutral Arbitrator shall be borne by the Party incurring such cost and expense.
(vi) If the Estimated Cash Consideration exceeds the Final Cash Consideration (the amount of such excess, the “Downward Adjustment Amount”), then the Securityholder Representative and the Purchaser shall promptly execute and deliver a joint written instruction to the Escrow Agent to (x) effectuate disbursement of the Downward Adjustment Amount to the Purchaser from the Escrow Account, and (y) effectuate the disbursement of the remaining amount of the Escrow Amount, if any, to the Paying Agent, for further distribution to the Sellers in respect of all Eligible Equity, in accordance with the Allocation Statement, an updated version of which will be delivered by the Securityholder Representative to Purchaser and the Paying Agent in connection therewith.
(vii) If the Final Cash Consideration exceeds the Estimated Cash Consideration (the amount of such excess, the “Upward Adjustment Amount”), then (x) the Purchaser shall pay, within three (3) Business Days after the determination of such excess amount date on which the Preliminary Statement becomes the Final Statement, by wire transfer of immediately available funds funds, to the accounts specified by the Sellers’ Representative; provided that any payments Paying Agent, for further distribution to Sellers in respect of Options shall all Eligible Equity, in accordance with the Allocation Statement, an updated version of which will be paid delivered by the Securityholder Representative to Purchaser and the Paying Agent in connection therewith, an amount equal to the Company Upward Adjustment Amount, and (y) the Securityholder Representative and the Purchaser shall promptly execute and deliver a joint written instruction to the Escrow Agent to effectuate the disbursement of the Escrow Amount to the Paying Agent, for further distribution to the Optionholders (Sellers in respect of all Eligible Equity, in accordance with the Allocation Schedule)Statement, net an updated version of which will be delivered by the amount, if any, required Securityholder Representative to be withheld under applicable Tax laws with respect to such paymentPurchaser and the Paying Agent in connection therewith.
Appears in 1 contract
Samples: Securities Purchase Agreement (Diplomat Pharmacy, Inc.)
Post-Closing Purchase Price Adjustment. As promptly In the event that the Working -------------------------------------- Capital as possible, but in any event no later than reflected on the fifth (5th) Business Day following the final determination, in accordance with Section 2.5.3 and/or Section 2.5.4, of Company Indebtedness, Transaction Expenses, Transaction Bonus Payments, Working Capital, and Cash on Hand (respectively, the “Final Company Indebtedness”, “Final Transaction Expenses”, “Final Transaction Bonus Payments”, “Final Working Capital Amount,” and “Final Cash on Hand Amount”), a Purchase Price adjustment shall be made as follows:
(a) if (i) the sum of (A) the Final Working Capital Amount, plus (B) the Final Cash on Hand Amount, minus (C) the Final Transaction Expenses, minus (D) the Final Transaction Bonus Payments, minus (E) the Final Company Indebtedness Closing Balance Sheet is less than (ii) the sum of (A) the Estimated Working Capital Amount, plus (B) the Estimated Cash on Hand Amount, minus (C) the Estimated Transaction Expenses, minus (D) the Estimated Transaction Bonus Payments, minus (E) the Estimated Company Indebtedness$2,394,322, then the Purchase Price will be reduced by an amount equal adjusted downward, on a dollar-for-dollar basis, to such shortfall, and such shortfall amount shall be paid to reflect the Buyer from the Escrow Account in accordance with the terms lesser of the Escrow Agreement; or
(b) if (i) the sum of (A) the Final decrease, if any, in Working Capital Amount, plus (B) as reflected on the Final Cash Closing Balance Sheet from the amount of Working Capital reflected on Hand Amount, minus (C) the Final Transaction Expenses, minus (D) the Final Transaction Bonus Payments, minus (E) the Final Company Indebtedness is greater than Preliminary Closing Balance Sheet or (ii) the sum of (A) the Estimated Working Capital Amount, plus (B) the Estimated Cash on Hand Amount, minus (C) the Estimated Transaction Expenses, minus (D) the Estimated Transaction Bonus Payments, minus (E) the Estimated Company Indebtedness, then the Purchase Price will be increased by an amount equal to such excess and the Buyer will pay such excess amount to the Sellers (in accordance with the Allocation Schedule) within five (5) Business Days after the determination of such excess amount by wire transfer of immediately available funds to the accounts specified by the Sellers’ Representative; provided that any payments in respect of Options shall be paid to the Company for further distribution to the Optionholders (in accordance with the Allocation Schedule), net of the amount, if any, required by which the Working Capital reflected on the Closing Balance Sheet is less than $2,394,322. Conversely, the Purchase Price will be adjusted upward, on a dollar-for dollar basis, to reflect the increase, if any, in the total Working Capital as reflected on the Closing Balance Sheet from the amount of Working Capital reflected on the Preliminary Closing Balance Sheet; provided, however, that in no event shall such upward adjustment exceed the total amount of any downward adjustment to the Purchase Price made pursuant to Section 2.6(b) above. The -------------- post-closing adjustment to the Purchase Price, if any, shall be withheld under applicable Tax laws with respect paid either (i) by the Sellers to the Buyer or Global (at the sole discretion of Global) in shares of Global Stock from the Escrow pursuant to the Escrow Agreement or (ii) by the Buyer to the Sellers in immediately available funds. Such payments or deliveries, as the case may be, of the post-closing adjustment shall be made within ten (10) business days of delivery of the Closing Balance Sheet, unless the Sellers dispute any items on the Closing Balance Sheet, in which case it shall be paid within ten (10) business days after the Independent Accountants finally determine the disputed item(s), and the Buyer or Global delivers to the Sellers a Closing Balance Sheet modified to reflect such paymentdetermination.
Appears in 1 contract
Samples: Stock Purchase Agreement (Global Imaging Systems Inc)
Post-Closing Purchase Price Adjustment. As promptly as possibleUpon completion of the calculation of the Final Closing Balance Sheet, but in any event no later than the fifth Final Cash, Final Indebtedness, Final Company Transaction Expenses, and Final Net Working Capital (5thincluding the Final Net Working Capital Excess or the Final Net Working Capital Deficit, if any) Business Day following the final determination, in accordance with Section 2.5.3 and/or Section 2.5.4, of Company Indebtedness, Transaction Expenses, Transaction Bonus Payments, Working Capital, and Cash on Hand (respectively1.3(b)(iii), the “Final Company Indebtedness”, “Final Transaction Expenses”, “Final Transaction Bonus Payments”, “Final Working Capital Amount,” and “Final Cash on Hand Amount”), a Closing Purchase Price adjustment shall be made adjusted dollar-for-dollar as follows:
(aA) The Final Net Working Capital amount determined in accordance with Section 1.3(b)(iii) will be used to calculate any post-Closing adjustments to the Closing Purchase Price with respect to Net Working Capital, as follows:
(1) if (i) Final Net Working Capital is greater than the sum of Final NWC Upper Collar Target, then the Closing Purchase Price shall be (A) the Final Working Capital Amount, plus (B) the Final Cash increased on Hand Amount, minus (C) the Final Transaction Expenses, minus (D) the Final Transaction Bonus Payments, minus (E) the Final Company Indebtedness is less than (ii) the sum of (A) the Estimated Working Capital Amount, plus (B) the Estimated Cash on Hand Amount, minus (C) the Estimated Transaction Expenses, minus (D) the Estimated Transaction Bonus Payments, minus (E) the Estimated Company Indebtedness, then the Purchase Price will be reduced a dollar-for-dollar basis by an amount equal to such shortfallexcess, and such shortfall amount shall be paid to the Buyer from the Escrow Account in accordance with the terms of the Escrow Agreement; or
(b) if (i) the sum of (A) the Final Working Capital Amount, plus (B) the Final Cash reduced on Hand Amount, minus (C) the Final Transaction Expenses, minus (D) the Final Transaction Bonus Payments, minus (E) the Final Company Indebtedness is greater than (ii) the sum of (A) a dollar-for-dollar basis by an amount equal to the Estimated Working Capital AmountExcess, plus (B) the Estimated Cash on Hand Amountif any, minus and (C) the Estimated Transaction Expenses, minus (D) the Estimated Transaction Bonus Payments, minus (E) the Estimated Company Indebtedness, then the Purchase Price will be increased by an amount equal to the Estimated Working Capital Deficit, if any; or
(2) if Final Net Working Capital is less than the Final NWC Lower Collar Target, then the Closing Purchase Price shall be (A) reduced on a dollar-for-dollar basis by an amount equal to such excess and the Buyer will pay such excess deficiency, (B) reduced on a dollar-for-dollar basis by an amount equal to the Sellers (in accordance with the Allocation Schedule) within five (5) Business Days after the determination of such excess amount by wire transfer of immediately available funds to the accounts specified by the Sellers’ Representative; provided that any payments in respect of Options shall be paid to the Company for further distribution to the Optionholders (in accordance with the Allocation Schedule), net of the amountEstimated Working Capital Excess, if any, required and (C) increased by an amount equal to the Estimated Working Capital Deficit, if any; or
(3) if Final Net Working Capital is greater than or equal to the Final NWC Lower Collar Target and less than or equal to the Final NWC Upper Collar Target, then the Closing Purchase Price shall be withheld under applicable Tax laws with respect (A) reduced on a dollar-for-dollar basis by an amount equal to such paymentthe Estimated Working Capital Excess, if any, and (B) increased by an amount equal to the Estimated Working Capital Deficit, if any.
(B) The Closing Purchase Price, without duplication of (A), shall be increased dollar-for-dollar by the amount that the Final Cash exceeds the Estimated Cash or decreased dollar-for-dollar by the amount that the Estimated Cash exceeds the Final Cash. Information marked “[***]” has been omitted pursuant to Item 601(b)(10)(iv) of Regulation S-K because it (i) is not material and (ii) is the type of information the registrant treats as private or confidential.
(C) The Closing Purchase Price shall be increased dollar-for-dollar by the amount that the Estimated Indebtedness exceeds the Final Indebtedness, or decreased dollar-for-dollar by the amount that the Final Indebtedness exceeds the Estimated Indebtedness.
(D) The Closing Purchase Price shall be increased dollar-for-dollar by the amount that Estimated Company Transaction Expenses exceeds the Final Company Transaction Expenses, or decreased dollar-for-dollar by the amount that the Final Company Transaction Expenses exceeds the Estimated Company Transaction Expenses.
Appears in 1 contract
Samples: Equity Purchase Agreement (ICF International, Inc.)
Post-Closing Purchase Price Adjustment. As promptly as possible2.4.1. In order to determine the Final Purchase Price, but in any event no later than within 45 (forty five) days after the fifth (5th) Business Day following the final determination, in accordance with Section 2.5.3 and/or Section 2.5.4, of Company Indebtedness, Transaction Expenses, Transaction Bonus Payments, Working Capital, and Cash on Hand (respectivelyClosing Date, the Buyer shall prepare (or shall procure that the Company prepares) and deliver to the Sellers the Final Closing Accounts together with the Final Purchase Price calculation statement (the “Final Company Indebtedness”, “Final Transaction Expenses”, “Final Transaction Bonus Payments”, “Final Working Capital Amount,” and “Final Cash on Hand AmountAdjustment Notice”), a including calculations of every single component of the Purchase Price adjustment as stipulated in Section 2.2.2 and Annex 6.
2.4.2. After providing the Sellers with the Adjustment Notice, the Buyer shall grant access to all such documents and financial information that will be required by the Sellers for purposes of verifying the amounts stated in the Adjustment Notice by the Buyer.
2.4.3. The Purchase Price shall be calculated in the form of Annex 6 of this Agreement, including calculations of every single component of the Purchase Price as stipulated in Section 2.2.2 and Annex 6 and if the Purchase Price exceeds the Base Purchase Price (the “Positive Adjustment Amount”) the Positive Adjustment Amount shall be paid by the Buyer to the Sellers by transfer to the bank accounts of the Sellers in proportions set out in Section 2.4.8. If the Base Purchase Price exceeds the Purchase Price (the “Negative Adjustment Amount”; the Positive Adjustment Amount and the Negative Adjustment Amount each – the “Adjustment Amount”) the Negative Adjustment Amount shall be paid by the Sellers to the Buyer by transfer to the Buyer’s Bank Account in proportions set out in Section 2.4.8. The payment of the Adjustment Amount shall be made as follows:
(a) if (i) the sum of (A) the Final Working Capital Amount, plus (B) the Final Cash on Hand Amount, minus (C) the Final Transaction Expenses, minus (D) the Final Transaction Bonus Payments, minus (E) the Final Company Indebtedness is less than (ii) the sum of (A) the Estimated Working Capital Amount, plus (B) the Estimated Cash on Hand Amount, minus (C) the Estimated Transaction Expenses, minus (D) the Estimated Transaction Bonus Payments, minus (E) the Estimated Company Indebtedness, then the Purchase Price will be reduced by an amount equal to such shortfall, and such shortfall amount shall be paid to the Buyer from the Escrow Account in accordance with the terms of the Escrow Agreement; or
(b) if (i) the sum of (A) the Final Working Capital Amount, plus (B) the Final Cash on Hand Amount, minus (C) the Final Transaction Expenses, minus (D) the Final Transaction Bonus Payments, minus (E) the Final Company Indebtedness is greater than (ii) the sum of (A) the Estimated Working Capital Amount, plus (B) the Estimated Cash on Hand Amount, minus (C) the Estimated Transaction Expenses, minus (D) the Estimated Transaction Bonus Payments, minus (E) the Estimated Company Indebtedness, then the Purchase Price will be increased by an amount equal to such excess and the Buyer will pay such excess amount to or the Sellers (in accordance with the Allocation Scheduleas applicable) within five 10 (5ten) Business Days after the determination Adjustment Amount has been determined.
2.4.4. The Sellers may notify the Buyer about the Sellers’ disagreement with the amounts indicated in the Adjustment Notice by submitting a dispute notice (the “Dispute Notice”) within 30 (thirty) days from the date when the Buyer presented the Adjustment Notice. If no Dispute Notice from the Sellers is received by the Buyer within that period of such excess amount by wire transfer of immediately available funds to time, the accounts specified Adjustment Notice will become final and binding on the Parties.
2.4.5. If the Dispute Notice is timely given by the Sellers’ Representative; provided that any payments , then the Sellers and the Buyer shall attempt in respect good faith to resolve the items or amounts in dispute. If the Sellers and the Buyer are unable to reach an agreement within 30 (thirty) Business Days after delivery of Options the Dispute Notice, the matter shall be paid referred to an Expert for establishment of the Company for further distribution to final amount of the Optionholders (Adjustment Amount, if any.
2.4.6. The Expert shall establish the disputed amount in accordance with the Allocation Schedule)respective provisions of this Agreement within 30 (thirty) Business Days from the date of receipt of written comments from the Parties. For the purposes of this Agreement, net the amounts of the amountPurchase Price and the Adjustment Amount (if any) established by the Expert shall be regarded as final and binding on the Parties. After the Expert establishes the Adjustment Amount, if any, required the Adjustment Amount shall be paid by the Buyer or the Sellers (as applicable) not later than within 10 (ten) Business Days after the Expert delivers to the Parties its calculations.
2.4.7. For the avoidance of doubt, the Expert, if appointed, shall be considered to be withheld under applicable Tax laws with acting as a neutral expert and not as an arbitrator and shall consider only the disputed amounts of the Purchase Price and the Adjustment Amount (the Expert shall not be entitled to resolve any disputes between the Parties related to the interpretation of this Agreement or other legal disputes). The fees, costs and expenses of the Expert shall be borne by the Sellers and the Buyer proportionately to their positions in respect to the Final Purchase Price and the Expert’s calculations; this proportion shall also be determined by the Expert.
2.4.8. The amounts payable by the Buyer to the Sellers (Base Purchase Price and Positive Adjustment Amount) or by the Sellers to the Buyer (Negative Adjustment Amount) shall be attributed to the Sellers in the following proportions (for avoidance of doubt number 16,484 does not and shall not include the amount of Management Option Shares):
2.4.9. The Purchase Price shall be considered to be full and total payment to the Sellers for the Sale Shares and their undertakings under this Agreement. The Purchase Price shall include all Taxes pertaining to the sale of Sale Shares that are attributable to the Sellers and all such paymentTaxes, if any, shall be borne by the Sellers.
2.4.10. Any payments by a Party under this Agreement shall not be subject to any set-off, withholding or other deduction and shall be free and clear of and without deduction for any Taxes (including bank charges or any other deductions). All Taxes and other mandatory payments (applicable to any amount that may be payable under this Agreement) are included in the respective payable amount and shall not be requested to be paid or compensated in addition.
Appears in 1 contract
Samples: Share Sale and Purchase Agreement (AST SpaceMobile, Inc.)
Post-Closing Purchase Price Adjustment. As promptly as possible, but in any event no later than the fifth (5tha) Business Day following the final determination, in accordance with Section 2.5.3 and/or Section 2.5.4, of Company Indebtedness, Transaction Expenses, Transaction Bonus Payments, Working Capital, and Cash on Hand (respectively, the “Final Company Indebtedness”, “Final Transaction Expenses”, “Final Transaction Bonus Payments”, “Final Working Capital Amount,” and “Final Cash on Hand Amount”), a The Purchase Price adjustment payable pursuant to Section 1.2(a) shall be made subject to post-closing adjustment as follows:
(a) if (i) the sum Purchase Price shall be increased dollar for dollar for each dollar of (A) the Final Working Capital Amountthat exceeds Estimated Working Capital, plus (B) if any, provided that the Final Cash on Hand Amount, minus (C) the Final Transaction Expenses, minus (D) the Final Transaction Bonus Payments, minus (E) the Final Company Indebtedness is less than maximum aggregate Purchase Price shall be $14,500,000; or
(ii) the sum of Purchase Price shall be reduced dollar for dollar to the extent the Working Capital (Aeither positive Working Capital or negative Working Capital) the is less than Estimated Working Capital AmountCapital, plus if any.
(Bb) Following completion of the Estimated Cash on Hand Amountaudit in accordance with Section 1.3(c), minus (C) the Estimated Transaction Expenses, minus (D) the Estimated Transaction Bonus Payments, minus (E) the Estimated Company Indebtedness, then the Purchase Price will shall be adjusted pursuant to Section 1.3(a). If the Purchase Price is reduced by an in accordance with Section 1.3(a), such amount equal to such shortfallshall be deducted from the Holdback Amount and the remainder of the Holdback Amount, and such shortfall amount if any, shall be paid to the Buyer Agent including simple interest thereon at the rate of 7.5% per annum over the period from the Escrow Account Closing Date through the date on which such amount is paid. If the reduction in accordance with the terms Purchase Price exceeds the Holdback Amount, any excess reduction shall be deducted from the Second Installment of the Escrow Agreement; or
(b) if Purchase Price and the interest accrual on such installment shall also be adjusted so that interest accrues on the reduced Second Installment amount of the Purchase Price from the Closing Date. To the extent that the Purchase Price is increased, the Purchaser shall pay to the Agent: (i) the sum of (A) the Final Working Capital full Holdback Amount, plus (B) the Final Cash on Hand Amount, minus (C) the Final Transaction Expenses, minus (D) the Final Transaction Bonus Payments, minus (E) the Final Company Indebtedness is greater than (ii) the sum any additional amounts owing as a result of (A) the Estimated Working Capital Amount, plus (B) the Estimated Cash on Hand Amount, minus (C) the Estimated Transaction Expenses, minus (D) the Estimated Transaction Bonus Payments, minus (E) the Estimated Company Indebtedness, then an increase in the Purchase Price will be increased by an amount equal pursuant to such excess Section 1.3(a), and (iii) simple interest on the Holdback Amount and the Buyer will pay additional Purchase Price at the rate of 7.5% per annum over the period from the Closing Date through the date on which such excess amount is paid. In no event, however, shall the aggregate Purchase Price paid by the Purchaser exceed $14,500,000.
(c) Within 90 days following the Closing, Xxxxxx Xxxxxxxx LLP ("XXXXXX XXXXXXXX") shall audit MS' balance sheet as of October 31, 1999 (the "CLOSING BALANCE SHEET") for conformity to GAAP and issue a draft report thereon. Purchaser shall provide to Agent a copy of the draft report. Any adjustment to the Sellers Closing Balance Sheet proposed by Xxxxxx Xxxxxxxx, including adjustments to Working Capital, shall be subject to review by auditors retained by the Selling Shareholders (in accordance with the Allocation Schedule"MS AUDITORS") within five (5) Business Days which review shall be completed no later than 30 days after the Agent receives the report from Xxxxxx Xxxxxxxx. If the opinions of Xxxxxx Xxxxxxxx and the MS Auditors differ as to the necessity of the adjustment, a third auditing firm mutually agreeable to the parties shall be selected to review the disputed adjustments. The decision of the third independent auditing firm regarding any such adjustment shall be binding on the parties. The final determination of the amounts payable hereunder shall be based on the final determination of the Working Capital as set forth in the final audited Closing Balance Sheet (the "AUDITED BALANCE SHEET") and each component in the calculation of such excess amount amounts shall be made using the Audited Balance Sheet. Each party shall be responsible for any fees and expenses incurred by wire transfer of immediately available funds such party's auditors. Notwithstanding anything in this Agreement to the accounts specified by the Sellers’ Representative; provided that any payments in respect of Options shall be paid to the Company for further distribution to the Optionholders (in accordance with the Allocation Schedule), net of the amountcontrary, if anythe services of a third independent auditing firm are required pursuant to this Section, required to be withheld under applicable Tax laws with respect to the Purchaser and the Selling Shareholders shall each bear and pay 50% of all fees and expenses of such paymentauditing firm.
Appears in 1 contract
Post-Closing Purchase Price Adjustment. As promptly as possible, but in any event no later than the fifth (5th) Business Day following the final determination, in accordance with Section 2.5.3 2.6.3 and/or Section 2.5.42.6.4, of Company Indebtedness, Transaction Expenses, Transaction Bonus Payments, Working Capital, and Cash on Hand and Company Indebtedness (respectively, the “Final Company Indebtedness”, “Final Transaction Expenses”, “Final Transaction Bonus Payments”, “Final Working Capital Amount,” and ”, “Final Cash on Hand Amount” and “Final Company Indebtedness”), a Purchase Price adjustment shall be made as follows:
(a) if (i) the sum of (A) the Final Working Capital Amount, plus (B) the Final Cash on Hand Amount, minus (C) the Final Transaction Expenses, minus (D) the Final Transaction Bonus PaymentsCompany Indebtedness, minus (E) the Final Company Indebtedness is less than (ii) the sum of (A) the Estimated Working Capital Amount, plus (B) the Estimated Cash on Hand Amount, minus (C) the Estimated Transaction Expenses, minus (D) the Estimated Transaction Bonus Payments, minus (E) the Estimated Company Indebtedness, then (i) the Purchase Price will be reduced by an amount equal to the lesser of such shortfallshortfall and the Adjustment Escrow Funds, and such shortfall amount shall be paid to the Buyer from the Adjustment Escrow Account in accordance with the terms of the Escrow AgreementAgreement and (ii) if any of the Adjustment Escrow Funds remain after such payment (if any) to the Buyer, the Escrow Agent shall distribute such remaining Adjustment Escrow Funds (x) in respect of the Shares, to the Sellers in accordance with the Allocation Schedule, and (y) in respect of the Company Options, to the Company or its applicable Subsidiary for 138052556_15 further distribution to the Optionholders, in their capacity as such, in accordance with the Allocation Schedule; or
(b) if (i) the sum of (A) the Final Working Capital Amount, plus (B) the Final Cash on Hand Amount, minus (C) the Final Transaction Expenses, minus (D) the Final Transaction Bonus Payments, minus (E) the Final Company Indebtedness is greater than (ii) the sum of (A) the Estimated Working Capital Amount, plus (B) the Estimated Cash on Hand Amount, minus (C) the Estimated Transaction Expenses, minus (D) the Estimated Transaction Bonus Payments, minus (E) the Estimated Company Indebtedness, then the Purchase Price will be increased by an amount equal to such excess and (i) the Buyer will pay such excess amount (x) in respect of the Shares, to the Sellers (in accordance with the Allocation Schedule) Schedule within five (5) Business Days after the determination of such excess amount by wire transfer of immediately available funds to the accounts specified by the Sellers’ Representative; provided that any payments , and (y) in respect of Options shall be paid the Company Options, to the Company or its applicable Subsidiary for further distribution to the Optionholders (Optionholders, in their capacity as such, in accordance with the Allocation Schedule), net . Upon determination of the amountFinal Transaction Expenses, if anythe Final Working Capital Amount, required the Final Cash on Hand Amount and the Final Company Indebtedness pursuant to be withheld this Section 2.6, each of the Buyer and the Sellers’ Representative shall execute joint written instructions to the Escrow Agent instructing the Escrow Agent to disburse the Adjustment Escrow Funds in accordance with this Section 2.6.5. In no event shall the Sellers have any liability under applicable Tax laws with respect to such paymentthis Section 2.6.5 in excess of the Adjustment Escrow Funds.
Appears in 1 contract
Post-Closing Purchase Price Adjustment. As promptly (a) The Closing Purchase Price will be an amount equal to the Base Amount, adjusted as possiblefollows after final determination of the Purchase Price Components under Section 1.4:
(i) plus, but in any event no later if the Working Capital exceeds the Working Capital Target, the amount of such excess;
(ii) minus, if the Working Capital is less than the fifth Working Capital Target, the amount of such deficit;
(5thiii) minus, the amount of the Indebtedness;
(iv) plus, the amount of Cash (which can be negative);
(v) minus, the amount of the Transaction Expenses; and
(vi) minus, that portion, if any, of the cost of the Resolution Accountant that is required to be borne by the Seller pursuant to Section 1.4(d).
(b) Within five Business Day following Days after the final determination, determination of the Closing Purchase Price in accordance with Section 2.5.3 and/or Section 2.5.4, of Company Indebtedness, Transaction Expenses, Transaction Bonus Payments, Working Capital, and Cash on Hand (respectively, the “Final Company Indebtedness”, “Final Transaction Expenses”, “Final Transaction Bonus Payments”, “Final Working Capital Amount,” and “Final Cash on Hand Amount”), a Purchase Price adjustment shall be made as follows:
(a) if 1.4: (i) if the sum of Closing Purchase Price exceeds the Estimated Closing Purchase Price, (A) the Final Working Capital Amount, plus (B) the Final Cash on Hand Amount, minus (C) the Final Transaction Expenses, minus (D) the Final Transaction Bonus Payments, minus (E) the Final Company Indebtedness is less than (ii) the sum of (A) the Estimated Working Capital Amount, plus (B) the Estimated Cash on Hand Amount, minus (C) the Estimated Transaction Expenses, minus (D) the Estimated Transaction Bonus Payments, minus (E) the Estimated Company Indebtedness, then the Purchase Price will be reduced by an amount equal to such shortfall, and such shortfall amount shall be paid to the Buyer from the Escrow Account in accordance with the terms of the Escrow Agreement; or
(b) if (i) the sum of (A) the Final Working Capital Amount, plus (B) the Final Cash on Hand Amount, minus (C) the Final Transaction Expenses, minus (D) the Final Transaction Bonus Payments, minus (E) the Final Company Indebtedness is greater than (ii) the sum of (A) the Estimated Working Capital Amount, plus (B) the Estimated Cash on Hand Amount, minus (C) the Estimated Transaction Expenses, minus (D) the Estimated Transaction Bonus Payments, minus (E) the Estimated Company Indebtedness, then the Purchase Price will be increased by an amount equal to such excess and the Buyer will pay such excess amount (or cause to be paid) to the Sellers (in accordance with the Allocation Schedule) within five (5) Business Days after the determination of such excess amount Seller, by wire transfer of immediately available funds to the accounts specified bank account designated in writing by the Sellers’ Representative; provided that any payments in respect Seller pursuant to Section 1.2(d), the amount of Options shall be paid to such excess and (B) the Company for further distribution to Buyer and the Optionholders (Seller will jointly instruct the Escrow Agent in accordance with the Allocation Schedule), net terms of the amountEscrow Agreement to release the Adjustment Escrow Funds to the Seller; or (ii) if the Closing Purchase Price is less than the Estimated Closing Purchase Price, (A) the Buyer and the Seller will jointly instruct the Escrow Agent in accordance with the terms of the Escrow Agreement to pay to the Buyer out of the Adjustment Escrow Funds, by wire transfer of immediately available funds to the bank account designated in writing by the Buyer, the amount of such deficit (with the remainder of the Adjustment Escrow Funds, if any, required to be withheld released to the Seller), and (B) to the extent the amount of such deficit exceeds the Adjustment Escrow Amount, the Seller will pay (or cause to be paid) to the Buyer, by wire transfer of immediately available funds to the bank account designated in writing by the Buyer, the amount of such excess; provided, that if the Seller fails to timely pay to the Buyer within the five day period referenced above any amount owed under applicable this Section 1.5(b)(ii)(B), then (1) the Buyer may, at its election and in its sole discretion, instruct the Escrow Agent in accordance with the terms of the Escrow Agreement to pay to the Buyer the amount of such excess out of the Indemnity Escrow Funds and (2) immediately following such distribution from the Indemnity Escrow Funds, the Seller shall replenish the Indemnity Escrow Funds with such amount. Any payment made pursuant to this Section 1.5(b) shall be deemed for Tax laws with respect purposes to such paymentbe an adjustment to the Purchase Price, unless otherwise required by Law.
Appears in 1 contract
Samples: Equity Purchase Agreement (FiscalNote Holdings, Inc.)
Post-Closing Purchase Price Adjustment. As promptly as possible, but in any event no later than the fifth (5tha) Business Day following the final determination, in accordance with Section 2.5.3 and/or Section 2.5.4, of Company Indebtedness, Transaction Expenses, Transaction Bonus Payments, Working Capital, and Cash on Hand (respectively, the “Final Company Indebtedness”, “Final Transaction Expenses”, “Final Transaction Bonus Payments”, “Final Working Capital Amount,” and “Final Cash on Hand Amount”), a The Purchase Price adjustment shall be made adjusted as follows:
(a) if (i) The Purchase Price shall be increased by the sum positive amount, if any, of (A) the Final Working Capital AmountCapital, plus as finally determined pursuant to Section 2.4(b), minus (B) the Final Cash on Hand Amountamount that is equal to (x) the Working Capital Requirement, minus (Cy) the Final Transaction Expenses, minus (D) the Final Transaction Bonus Payments, minus (E) the Final Company Indebtedness is less than any Estimated Working Capital Shortfall.
(ii) The Purchase Price shall be decreased by the sum positive amount, if any, of (A) the amount that is equal to (x) the Working Capital Requirement, minus (y) any Estimated Working Capital AmountShortfall, plus minus (B) the Estimated Cash on Hand AmountWorking Capital, minus as finally determined pursuant to Section 2.4(b).
(Ciii) the Estimated Transaction Expenses, minus (D) the Estimated Transaction Bonus Payments, minus (E) the Estimated Company Indebtedness, then the The Purchase Price will be reduced by an amount equal to such shortfall, and such shortfall amount shall be paid to increased by the Buyer from the Escrow Account in accordance with the terms amount of the Escrow Agreement; orWorking Capital Holdback.
(b) if The following provisions shall apply to the determination of any increases or decreases to the Purchase Price required under Section 2.4(a) (collectively, the “Final Adjustments”):
(i) the sum of (A) The Working Capital and the Final Working Capital AmountAdjustments shall be calculated by Alliant, plus and such calculations, together with sufficient backup materials and schedules to reasonably demonstrate how Alliant arrived at such calculations, shall be delivered to Seller for its review within sixty (B60) days after the Final Cash on Hand Amount, minus (C) the Final Transaction Expenses, minus (D) the Final Transaction Bonus Payments, minus (E) the Final Company Indebtedness is greater than Closing Date.
(ii) If Seller has any objections to the sum calculation of (A) the Estimated Working Capital Amountand the Final Adjustments, plus Seller shall deliver to Alliant, within ten (B10) days after receiving such calculations, a detailed statement describing the Estimated Cash on Hand Amount, minus objections. If no such statement is received by Alliant within such ten (C10) the Estimated Transaction Expenses, minus (D) the Estimated Transaction Bonus Payments, minus (E) the Estimated Company Indebtednessday period, then Alliant’s calculation of the Working Capital and Final Adjustments shall be deemed to have been accepted by Seller and shall be deemed final and binding on the Parties.
(iii) Alliant and Seller shall negotiate in good faith to resolve any objections set forth in the statement delivered to Alliant pursuant to Section 2.4(b)(ii). If Alliant and Seller do not reach a final resolution within fifteen (15) days after Alliant received the statement of objections, then they shall jointly and in good faith select an independent accounting firm of national or regional reputation (the “Independent Accounting Firm”) to resolve any remaining objections. For the avoidance of doubt, the Independent Accounting Firm shall not review any items or make any determination with respect to any matter other than those items and matters that remain in dispute and are submitted by Alliant and Seller to the Independent Accounting Firm. The decision of the Independent Accounting Firm shall be final (and not reviewable by the court or through arbitration or otherwise), absent manifest error, and shall be issued as soon as possible.
(iv) All fees and expenses incurred by the Independent Accounting Firm shall be borne by Alliant on the one hand and Seller on the other hand in proportion to the allocation of the dollar value of the amounts in dispute as between Alliant and Seller (set forth in the written submissions to the Independent Accounting Firm) made by the Independent Accounting Firm, such that the Party prevailing on the greater dollar value of such dispute pays the lesser proportion of the fees and expenses.
(c) If the Purchase Price will be is decreased (in the aggregate) as a result of the Final Adjustments, Seller shall pay the amount of such shortfall in cash to Alliant within thirty (30) days after the date of determination of the Final Adjustments.
(d) If the Purchase Price is increased by an (in the aggregate) as a result of the Final Adjustments, Alliant shall pay the amount equal to of any such excess and the Buyer will pay such excess amount increase in cash to the Sellers Seller within thirty (in accordance with the Allocation Schedule30) within five (5) Business Days days after the date of determination of such excess amount by wire transfer of immediately available funds the Final Adjustment.
(e) Notwithstanding anything to the accounts specified by contrary, the Sellers’ Representative; provided that any payments in respect of Options Final Adjustments shall be paid applied without duplication in adjusting the Purchase Price hereunder.
(f) Adjustments made pursuant to this Section 2.4 shall be treated as adjustments to the Company Purchase Price for further distribution all purposes, including Tax, except as otherwise required pursuant to the Optionholders (in accordance with the Allocation Schedule), net of the amount, if any, required to be withheld under applicable Tax laws with respect to such paymentLaw.
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Samples: Securities Purchase Agreement (South Plains Financial, Inc.)
Post-Closing Purchase Price Adjustment. As promptly (a) If the actual:
(i) Working Capital finally determined as possible, but provided in any event no later than Section 2.4: (A) exceeds the fifth (5th) Business Day following the final determination, in accordance with Section 2.5.3 and/or Section 2.5.4, of Company Indebtedness, Transaction Expenses, Transaction Bonus Payments, Estimated Working Capital, and Cash on Hand (respectively, then the “Final Company Indebtedness”, “Final Transaction Expenses”, “Final Transaction Bonus Payments”, “Final Working Capital Amount,” and “Final Cash on Hand Amount”), a Purchase Price adjustment shall will be made as follows:
(a) if (i) increased by the sum amount of (A) the Final Working Capital Amount, plus such excess; or (B) the Final Cash on Hand Amount, minus (C) the Final Transaction Expenses, minus (D) the Final Transaction Bonus Payments, minus (E) the Final Company Indebtedness is less than (ii) the sum of (A) the Estimated Working Capital Amount, plus (B) the Estimated Cash on Hand Amount, minus (C) the Estimated Transaction Expenses, minus (D) the Estimated Transaction Bonus Payments, minus (E) the Estimated Company IndebtednessCapital, then the Purchase Price will be reduced by an the amount equal to such shortfall, and such shortfall amount shall be paid to the Buyer from the Escrow Account in accordance with the terms of the Escrow Agreement; or
(b) if (i) the sum of (A) the Final Working Capital Amount, plus (B) the Final Cash on Hand Amount, minus (C) the Final Transaction Expenses, minus (D) the Final Transaction Bonus Payments, minus (E) the Final Company Indebtedness is greater than (ii) the sum of (A) by which the Estimated Working Capital Amountexceeds the actual Working Capital (a “Working Capital Reduction”);
(ii) Funded Debt finally determined as provided in Section 2.4 (A) exceeds the Estimated Debt, plus then the Purchase Price will be decreased by the amount of such excess (the “Indebtedness Reduction”); or (B) is less than the Estimated Cash on Hand Amount, minus (C) the Estimated Transaction Expenses, minus (D) the Estimated Transaction Bonus Payments, minus (E) the Estimated Company IndebtednessDebt, then the Purchase Price will be increased by an the amount equal to by which the Estimated Debt exceeds the actual Funded Debt; and
(iii) Cash finally determined as provided in Section 2.4 (A) exceeds the Estimated Cash, then the Purchase Price will be increased by the amount of such excess excess; or (B) is less than the estimate thereof used in Section 2.2 above, then the Purchase Price will be reduced by the amount by which the Estimated Cash exceeds the actual Cash (the “Cash Reduction” and together with the Working Capital Reduction and the Buyer will pay such excess amount to Indebtedness Reduction, the Sellers “Reduction”).
(b) Within ten (10) days after the final determination of Working Capital, Funded Debt and Cash in accordance with Section 2.4: (i) if the Purchase Price (as determined after the application of the aggregate adjustments required under Section 2.5(a)) exceeds the Estimated Purchase Price (as set forth in the Closing Date Allocation Schedule) the Stockholders’ Representatives shall deliver a Post-Closing Allocation Schedule to the Buyer in respect of such excess amount, and within five (5) Business Days after receipt of such Post-Closing Allocation Schedule, the determination Buyer shall, deposit, or cause to be deposited: (A) with the Paying Agent cash sufficient to pay the portion of such excess amount payable to any Participant for which payment is not subject to wage or payroll tax withholding and shall cause the Paying Agent to promptly distribute such portion of the excess amount in accordance with such Post-Closing Allocation Schedule; and (B) into one or more accounts of the Companies or their payroll agents cash sufficient to pay the portion of such excess amount payable to any Participant for which payment is subject to wage or payroll tax withholding and shall cause the applicable Company or its payroll agent to promptly distribute such portion of the excess amount in accordance with such Closing Date Allocation Schedule, in each case, subject to Section 2.9; or (ii) if the Purchase Price (as determined after the application of the aggregate adjustments required under Section 2.5(a)) is less than the Estimated Purchase Price (as set forth in the Closing Date Allocation Schedule), the Stockholders’ Representatives and the Buyer will instruct the Escrow Agent to pay to the Buyer out of the Escrow Funds, by wire transfer of immediately available funds to the accounts specified a bank designated by the Sellers’ Representative; provided that any payments in respect of Options shall be paid Buyer, an amount equal to the Company for further distribution Reduction (it being understood that the Deductible shall not apply to the Optionholders (in accordance with the Allocation Scheduleany amounts payable pursuant to this Section 2.5(b)(ii), net of the amount, if any, required to be withheld under applicable Tax laws with respect to such payment) .
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Post-Closing Purchase Price Adjustment. As promptly as possible, but in any event no later than the fifth (5th) Business Day following the final determination, in accordance with Section 2.5.3 and/or Section 2.5.4, of Company Indebtedness, Transaction Expenses, Transaction Bonus Payments, Company Indebtedness, Working Capital, Capital and Cash on Hand (respectively, the “Final Company Indebtedness”, “Final Transaction Expenses”, “Final Transaction Bonus Payments”, “Final Company Indebtedness”, “Final Working Capital Amount,” and “Final Cash on Hand Amount”), a Purchase Price adjustment shall be made as follows:
(a) if (i) the sum of (A) the Final Working Capital Amount, plus (B) the Final Cash on Hand Amount, minus (C) the Final Transaction Expenses, minus (D) the Final Transaction Bonus Payments, minus (E) the Final Company Indebtedness is less than (ii) the sum of (A) the Estimated Working Capital Amount, plus (B) the Estimated Cash on Hand Amount, minus (C) the Estimated Transaction Expenses, minus (D) the Estimated Transaction Bonus Payments, minus (E) the Estimated Company Indebtedness, then the Purchase Price will be reduced by an amount equal to such shortfall, and such shortfall amount shall be paid to the Buyer from the Purchase Price Adjustment Escrow Sub-Account in accordance with the terms of the Escrow Agreement; or
(b) if (i) the sum of (A) the Final Working Capital Amount, plus (B) the Final Cash on Hand Amount, minus (C) the Final Transaction Expenses, minus (D) the Final Transaction Bonus Payments, minus (E) the Final Company Indebtedness is greater than (ii) the sum of (A) the Estimated Working Capital Amount, plus (B) the Estimated Cash on Hand Amount, minus (C) the Estimated Transaction Expenses, minus (D) the Estimated Transaction Bonus Payments, minus (E) the Estimated Company Indebtedness, then the Purchase Price will be increased by an amount equal to such excess and the Buyer will pay such excess amount to the Sellers (in accordance with the Allocation Schedule) Seller within five (5) Business Days after the determination of such excess amount by wire transfer of immediately available funds to the accounts account specified by the Sellers’ Representative; provided that any payments in respect of Options shall be paid to the Company for further distribution to the Optionholders (in accordance with the Allocation Schedule), net of the amount, if any, required to be withheld under applicable Tax laws with respect to such paymentSeller.
Appears in 1 contract
Samples: Stock Purchase Agreement
Post-Closing Purchase Price Adjustment. As promptly as possible, but in any event no later than the fifth (5tha) Business Day following the final determination, in accordance with Section 2.5.3 and/or Section 2.5.4, of Company Indebtedness, Transaction Expenses, Transaction Bonus Payments, Working Capital, and Cash on Hand (respectively, the “Final Company Indebtedness”, “Final Transaction Expenses”, “Final Transaction Bonus Payments”, “Final Working Capital Amount,” and “Final Cash on Hand Amount”), a The Purchase Price adjustment payable pursuant to Section 1.2(a) shall be made subject to post-closing adjustment as follows:
(a) if (i) the sum Purchase Price shall be increased dollar for dollar for each dollar of (A) the Final Working Capital Amountthat exceeds Estimated Working Capital, plus (B) if any, provided that the Final Cash on Hand Amount, minus (C) the Final Transaction Expenses, minus (D) the Final Transaction Bonus Payments, minus (E) the Final Company Indebtedness is less than maximum aggregate Purchase Price shall be $14,500,000; or
(ii) the sum of Purchase Price shall be reduced dollar for dollar to the extent the Working Capital (Aeither positive Working Capital or negative Working Capital) the is less than Estimated Working Capital AmountCapital, plus if any.
(Bb) Following completion of the Estimated Cash on Hand Amountaudit in accordance with Section 1.3(c), minus (C) the Estimated Transaction Expenses, minus (D) the Estimated Transaction Bonus Payments, minus (E) the Estimated Company Indebtedness, then the Purchase Price will shall be adjusted pursuant to Section 1.3(a). If the Purchase Price is reduced by an in accordance with Section 1.3(a), such amount equal to such shortfallshall be deducted from the Holdback Amount and the remainder of the Holdback Amount, and such shortfall amount if any, shall be paid to the Buyer Agent including simple interest thereon at the rate of 7.5% per annum over the period from the Escrow Account Closing Date through the date on which such amount is paid. If the reduction in accordance with the terms Purchase Price exceeds the Holdback Amount, any excess reduction shall be deducted from the Second Installment of the Escrow Agreement; or
(b) if Purchase Price and the interest accrual on such installment shall also be adjusted so that interest accrues on the reduced Second Installment amount of the Purchase Price from the Closing Date. To the extent that the Purchase Price is increased, the Purchaser shall pay to the Agent: (i) the sum of (A) the Final Working Capital full Holdback Amount, plus (B) the Final Cash on Hand Amount, minus (C) the Final Transaction Expenses, minus (D) the Final Transaction Bonus Payments, minus (E) the Final Company Indebtedness is greater than (ii) the sum any additional amounts owing as a result of (A) the Estimated Working Capital Amount, plus (B) the Estimated Cash on Hand Amount, minus (C) the Estimated Transaction Expenses, minus (D) the Estimated Transaction Bonus Payments, minus (E) the Estimated Company Indebtedness, then an increase in the Purchase Price will be increased by an amount equal pursuant to such excess Section 1.3(a), and (iii) simple interest on the Holdback Amount and the Buyer will pay additional Purchase Price at the rate of 7.5% per annum over the period from the Closing Date through the date on which such excess amount is paid. In no event, however, shall the aggregate Purchase Price paid by the Purchaser exceed $14,500,000.
(c) Within 90 days following the Closing, Arthur Andersen LLP ("Arthux Xxxerxxx") xhall audxx XX' bxxxxxx sheet as of October 31, 1999 (the "Closing Balance Sheet") for conformity to GAAP and issue a draft report thereon. Purchaser shall provide to Agent a copy of the draft report. Any adjustment to the Sellers Closing Balance Sheet proposed by Arthur Andersen, including xxxxxxmexxx xx Xorking Capital, shall be subject to review by auditors retained by the Selling Shareholders (in accordance with the Allocation Schedule"MS Auditors") within five (5) Business Days which review shall be completed no later than 30 days after the Agent receives the report from Arthur Andersen. If the opixxxxx ox Xxxxxr Andersen and the MS Xxxxtoxx xxxxer as to the necessity of the adjustment, a third auditing firm mutually agreeable to the parties shall be selected to review the disputed adjustments. The decision of the third independent auditing firm regarding any such adjustment shall be binding on the parties. The final determination of the amounts payable hereunder shall be based on the final determination of the Working Capital as set forth in the final audited Closing Balance Sheet (the "Audited Balance Sheet") and each component in the calculation of such excess amount amounts shall be made using the Audited Balance Sheet. Each party shall be responsible for any fees and expenses incurred by wire transfer of immediately available funds such party's auditors. Notwithstanding anything in this Agreement to the accounts specified by the Sellers’ Representative; provided that any payments in respect of Options shall be paid to the Company for further distribution to the Optionholders (in accordance with the Allocation Schedule), net of the amountcontrary, if anythe services of a third independent auditing firm are required pursuant to this Section, required to be withheld under applicable Tax laws with respect to the Purchaser and the Selling Shareholders shall each bear and pay 50% of all fees and expenses of such paymentauditing firm.
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Post-Closing Purchase Price Adjustment. As promptly as possible, but in any In the event no later than that the fifth (5th) Business Day following the final determination, in accordance with Section 2.5.3 and/or Section 2.5.4, of Company Indebtedness, Transaction Expenses, Transaction Bonus Payments, Working Capital, and Cash on Hand (respectively, the “Final Company Indebtedness”, “Final Transaction Expenses”, “Final Transaction Bonus Payments”, “Final Working Capital Amount,” and “Final Cash as reflected on Hand Amount”), a Purchase Price adjustment shall be made as follows:
(a) if (i) the sum of (A) the Final Working Capital Amount, plus (B) the Final Cash on Hand Amount, minus (C) the Final Transaction Expenses, minus (D) the Final Transaction Bonus Payments, minus (E) the Final Company Indebtedness Closing Balance Sheet is less than (ii) the sum of (A) the Estimated Working Capital Amount, plus (B) the Estimated Cash on Hand Amount, minus (C) the Estimated Transaction Expenses, minus (D) the Estimated Transaction Bonus Payments, minus (E) the Estimated Company IndebtednessTarget, then the Purchase Price will be reduced by an amount equal adjusted downward, on a dollar-for-dollar basis, to such shortfall, and such shortfall amount shall be paid to reflect the Buyer from the Escrow Account in accordance with the terms lesser of the Escrow Agreement; or
(b) if (i) the sum of (A) the Final decrease, if any, in Working Capital Amount, plus (B) as reflected on the Final Cash Closing Balance Sheet from the amount of Working Capital reflected on Hand Amount, minus (C) the Final Transaction Expenses, minus (D) the Final Transaction Bonus Payments, minus (E) the Final Company Indebtedness is greater than Preliminary Closing Balance Sheet or (ii) the sum of (A) amount, if any, by which the Estimated Working Capital Amountreflected on the Closing Balance Sheet is less than the Working Capital Target. Conversely, plus (Bthe Purchase Price will be adjusted upward, on a dollar-for dollar basis, to reflect the increase, if any, in the total Working Capital as reflected on the Closing Balance Sheet from the amount of Working Capital reflected on the Preliminary Closing Balance Sheet; provided, however, that in no event shall such upward adjustment exceed the total amount of any downward adjustment to the Purchase Price made pursuant to Section 2.13(b) above. In addition, in the Estimated event that the Effective Date Cash as reflected on Hand Amount, minus (C) the Estimated Transaction Expenses, minus (D) the Estimated Transaction Bonus Payments, minus (E) the Estimated Company IndebtednessClosing Balance Sheet is less than 2,240,000, then the Purchase Price will be increased by an amount equal adjusted downward, on a $0.50 per dollar basis, to such excess and reflect the Buyer will pay such excess amount to lesser of (i) the Sellers increase, if any, in the Cash Shortfall as reflected on the Closing Balance Sheet from the Cash Shortfall reflected on the Preliminary Closing Balance Sheet or (in accordance with the Allocation Scheduleii) within five (5) Business Days after the determination of such excess amount by wire transfer of immediately available funds to the accounts specified by the Sellers’ Representative; provided that any payments in respect of Options shall be paid to the Company for further distribution to the Optionholders (in accordance with the Allocation Schedule), net of the amount, if any, required by which Effective Date Cash reflected on the Closing Balance Sheet is less than 2,240,000. Conversely, the Purchase Price will be adjusted upward, on a $0.50 per dollar basis, to reflect any decrease in the Cash Shortfall; provided, however, that in no event shall such upward adjustment exceed the total amount of any downward adjustment to the Purchase Price made pursuant to Section 2.13(c). The post- closing adjustment to the Purchase Price, if any, payable by the Seller and Shareholders to Global shall be withheld under applicable Tax laws paid by the Seller and Shareholders to Global from the Standard Escrow Sum. Any post closing adjustment payable by the Seller and Shareholders to Global made in accordance with respect this Section 2.15 shall be allocated based on the Allocable Portions. In addition, the post-closing adjustment to the Purchase Price, if any, payable by Global to the Seller and Shareholders shall be paid to the Shareholders' Representative (for the benefit of the Seller and the Shareholders) in immediately available funds and shall be made within ten (10) business days of delivery of the Closing Balance Sheet, unless the Seller disputes any items on the Closing Balance Sheet, in which case it shall be paid within ten (10) business days after the Independent Accountants finally determine the disputed item(s), and Global or Independent Accountants deliver(s) to the Seller (and Global, if applicable) a Closing Balance Sheet modified to reflect such paymentdetermination.
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