Purchase Price Adjustment. (a) As soon as practicable but not later than 60 days following the Closing Date, Seller shall prepare and deliver to Buyer a working capital statement of the Company as of the close of business on the Closing Date (the "CLOSING STATEMENT") setting forth the current assets minus the current liabilities of the Company (the "WORKING CAPITAL") on the basis described in Annex B, accompanied by a report from Arthur Andersen LLP; PROVIDED, HOWEVER, if the transactions contemplaxxx xx Xxxxxxx 4.11(a) or (b) occur, the Closing Statement will be prepared as if the Com pany did not own the Dermablend Business or the National Cosmetics Business and the Iman Business as of the Closing Date, as the case may be; PROVIDED FURTHER that if Buyer retains the Dermablend Business and, pursuant to Section 4.11(b), sells the National Cosmetics Business and the Iman Business, the Dermablend Business will also include the net accounts receivable (other than the Designated Receivables (as defined in Section 4.11)), bank overdraft, accounts payable and accrued expenses related to the National Cosmetics Business and the Iman Business. Seller and its authorized representatives shall have reasonable access to all relevant books and records and employees of the Company following the Closing Date to the extent required to complete preparation of the Closing Statement, including, without limitation, preparation of any financial reports or schedules needed to complete the Closing Statement. Seller and Buyer shall split equally the cost of preparing and delivering the Closing Statement. (b) After receipt of the Closing Statement, Buyer shall have 15 days to review it. Buyer and its authorized representatives shall have reasonable access to Seller's accountants to the extent required to complete their review of the Closing Statement, including, without limitation, the accountants' work papers used in preparation thereof. Unless Buyer delivers written notice to Seller on or prior to the 15th day after receipt of the Closing Statement specifying in reasonable detail its objections to the Closing Statement on the grounds that the Closing Statement (i) was not prepared in accordance with this Section 1.4 or (ii) contained arithmetic errors, the parties shall be deemed to have accepted and agreed to the Closing Statement. If Buyer so notifies Seller of such an objection to the Closing Statement, the parties shall within 15 days following the date of such notice (the "RESOLUTION PERIOD") attempt to resolve their differences. (c) At the conclusion of the Resolution Period, any amounts remaining in dispute shall, at the election of either party, be submitted to Price Waterhouse (the "NEUTRAL AUDITOR"). The Neutral Auditor shall be engaged within five days after an election by either party to submit its objections to the Neutral Auditor, and each party agrees to execute, if requested by the Neutral Auditor, a reasonable engagement letter. All fees and expenses of the Neutral Auditor shall be borne equally by Seller and Buyer. The Neutral Auditor shall act as an arbitrator to determine, based solely on the written presentations by Seller and Buyer made within 15 days of the Neutral Auditor's engagement or such other reasonable period of time to which the parties agree, and not by independent review, only those issues still in dispute. The Neutral Auditor's determination shall be made within 30 days after Seller's and Buyer's written presentations have been made, shall be set forth in a written statement delivered to Seller and Buyer and shall be final, binding, conclusive and nonappealable. The term "FINAL CLOSING STATEMENT" shall mean the definitive Closing Statement agreed to by Seller and Buyer in accordance with Section 1.4(b) or the definitive Closing Statement resulting from the determination made by the Neutral Auditor in accordance with this Section 1.4(c) (in addition to those items theretofore agreed to by Seller and Buyer).
Appears in 1 contract
Samples: Purchase Agreement (Ivax Corp /De)
Purchase Price Adjustment. (a) As soon as practicable but not later than 60 Within ninety (90) days following after the Closing Date, Seller the Buyer shall prepare and deliver to Buyer the Seller a working capital statement of the Company as of the close of business on the Closing Date (the "CLOSING STATEMENT"“Statement”) setting forth the current assets minus the current liabilities of the Company (the "WORKING CAPITAL") on the basis described in Annex B, accompanied by a report from Arthur Andersen LLP; PROVIDED, HOWEVER, if the transactions contemplaxxx xx Xxxxxxx 4.11(a) or (b) occur, the Closing Statement will be prepared as if the Com pany did not own the Dermablend Business or the National Cosmetics Business and the Iman Business as of the Closing DateWorking Capital and the Assumed Indebtedness, in each case prepared in accordance with the Working Capital Rules and the Assumed Indebtedness Rules, as applicable. The Buyer shall not amend, supplement or modify the case may be; PROVIDED FURTHER that if Statement following its delivery to the Seller. The Buyer retains the Dermablend Business and, pursuant to Section 4.11(b), sells the National Cosmetics Business and the Iman Business, the Dermablend Business will also include the net accounts receivable (other than the Designated Receivables (as defined in Section 4.11)), bank overdraft, accounts payable and accrued expenses related Seller acknowledge that no adjustments shall be made to the National Cosmetics Business and the Iman Business. Seller and its authorized representatives shall have reasonable access to all relevant books and records and employees of the Company following the Closing Date to the extent required to complete preparation of the Closing Statement, including, without limitation, preparation of any financial reports or schedules needed to complete the Closing Statement. Seller and Buyer shall split equally the cost of preparing and delivering the Closing StatementBase Amount.
(b) After receipt of The Statement shall become final and binding upon the Closing Statement, Buyer shall have 15 days to review it. Buyer and its authorized representatives shall have reasonable access to Seller's accountants parties on the thirtieth (30th) day following the date on which the Statement was delivered to the extent required to complete their review of Seller, unless the Closing Statement, including, without limitation, the accountants' work papers used in preparation thereof. Unless Buyer Seller delivers written notice of its disagreement with the Statement (a “Notice of Disagreement”) to Seller on or the Buyer prior to the 15th day after receipt such date. Any Notice of the Closing Statement specifying Disagreement shall (i) specify in reasonable detail its objections to the nature of any disagreement so asserted and (ii) only include good faith disagreements based on Closing Statement on Working Capital and/or Assumed Indebtedness not being calculated in accordance with the grounds that Working Capital Rules or the Closing Assumed Indebtedness Rules, as applicable. If a Notice of Disagreement is received by the Buyer in a timely manner, then the Statement (i) was not prepared as revised in accordance with this Section 1.4 or sentence) shall become final and binding upon the Seller and the Buyer on the earlier of (iiA) contained arithmetic errorsthe date the Seller and the Buyer resolve in writing any differences they have with respect to the matters specified in the Notice of Disagreement and (B) the date any disputed matters are finally resolved in writing by the Accounting Firm. During the fourteen (14)-day period following the delivery of a Notice of Disagreement, the parties Seller and the Buyer shall seek in good faith to resolve in writing any differences that they may have with respect to the matters specified in the Notice of Disagreement. If at the end of such fourteen (14)-day period the Seller and the Buyer have not resolved in writing the matters specified in the Notice of Disagreement, the Seller and the Buyer shall submit to an independent accounting firm (the “Accounting Firm”) for arbitration, in accordance with the standards set forth in this Section 2.3, only matters that remain in dispute. The Accounting Firm shall be deemed such nationally recognized independent public accounting firm as shall be agreed upon by the Seller and the Buyer in writing. The Seller and the Buyer shall use reasonable efforts to have accepted and agreed cause the Accounting Firm to render a written decision resolving the matters submitted to the Closing Statement. If Buyer so notifies Seller Accounting Firm within thirty (30) days of the receipt of such an objection submission. The scope of the disputes to be resolved by the Closing StatementAccounting Firm shall be limited to fixing mathematical errors and determining whether the items in dispute were determined in accordance with the Working Capital Rules or the Assumed Indebtedness Rules, as applicable, and the Accounting Firm is not to make any other determination, including any determination as to whether the Base Amount, Working Capital Estimate, the final physical inventory count referenced in Exhibit B (if applicable) or the Estimated Assumed Indebtedness Amount are correct. The Accounting Firm’s decision shall be based solely on written submissions by the Seller and the Buyer and their respective representatives and not by independent review and shall be final and binding on all of the parties hereto. The Accounting Firm may not assign a value greater than the greatest value for such item claimed by either party or smaller than the smallest value for such item claimed by either party. Judgment may be entered upon the determination of the Accounting Firm in any court having jurisdiction over the party against which such determination is to be enforced. The fees and expenses of the Accounting Firm incurred pursuant to this Section 2.3 shall within 15 days following be borne equally as between the date of such notice (Seller, on the "RESOLUTION PERIOD") attempt to resolve their differencesone hand, and the Buyer, on the other hand.
(c) At For the conclusion purposes of this Agreement, “Final Working Capital” means the Resolution PeriodClosing Working Capital and “Final Assumed Indebtedness” means the Assumed Indebtedness, any amounts remaining in dispute shall, at the election of either party, be submitted to Price Waterhouse (the "NEUTRAL AUDITOR"). The Neutral Auditor shall be engaged within five days after an election by either party to submit its objections to the Neutral Auditor, and each party agrees to execute, if requested by the Neutral Auditor, a reasonable engagement letter. All fees and expenses of the Neutral Auditor shall be borne equally by Seller and Buyer. The Neutral Auditor shall act case as an arbitrator to determine, based solely on the written presentations by Seller and Buyer made within 15 days of the Neutral Auditor's engagement finally agreed or such other reasonable period of time to which the parties agree, and not by independent review, only those issues still in dispute. The Neutral Auditor's determination shall be made within 30 days after Seller's and Buyer's written presentations have been made, shall be set forth in a written statement delivered to Seller and Buyer and shall be final, binding, conclusive and nonappealable. The term "FINAL CLOSING STATEMENT" shall mean the definitive Closing Statement agreed to by Seller and Buyer determined in accordance with Section 1.4(b) or the definitive Closing Statement resulting from the determination made by the Neutral Auditor in accordance with this Section 1.4(c) (in addition to those items theretofore agreed to by Seller and Buyer).2.3
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Purchase Price Adjustment. (a) As soon as practicable but not later than 60 days following At least three (3) Business Days prior to the Closing Date, Seller the Company shall prepare and deliver to Buyer a working capital statement Parent its good faith estimate of the Company as calculation of Net Working Capital (the “Estimated Net Working Capital”), Selling Expenses, and, in accordance with Section 6.17, the Facilities Renovation Balance (the Company’s good faith estimate of the close of business on the Closing Date (the "CLOSING STATEMENT") setting forth the current assets minus the current liabilities of the Company (the "WORKING CAPITAL") on the basis described in Annex B, accompanied by a report from Arthur Andersen LLP; PROVIDED, HOWEVER, if the transactions contemplaxxx xx Xxxxxxx 4.11(a) or (b) occur, the Closing Statement will Facilities Renovation Balance and Selling Expenses shall be prepared as if the Com pany did not own the Dermablend Business or the National Cosmetics Business and the Iman Business as of the Closing Date, referred to herein as the case may be; PROVIDED FURTHER that if Buyer retains the Dermablend Business and, pursuant to Section 4.11(b“Estimated Adjustment Items”), sells the National Cosmetics Business and the Iman Business, the Dermablend Business will also include the net accounts receivable (other than the Designated Receivables (as defined in Section 4.11)), bank overdraft, accounts payable and accrued expenses related to the National Cosmetics Business and the Iman Business. Seller and its authorized representatives shall have reasonable access to all relevant books and records and employees of the Company following the Closing Date to the extent required to complete preparation of the Closing Statement, including, without limitation, preparation of any financial reports or schedules needed to complete the Closing Statement. Seller and Buyer shall split equally the cost of preparing and delivering the Closing Statement.
(b) After receipt As promptly as practicable, but no later than ninety (90) days after the Closing Date, Parent shall deliver, or shall cause to be delivered, to the Securityholder Representative a certificate (the “Closing Certificate”), setting forth a good faith calculation of Net Working Capital, Selling Expenses, the Facilities Renovation Balance, the Net Adjustment Amount and the amount of any cash or cash equivalents of the Company not distributed or used to retire any portion of Company Debt (“Excess Cash”), in each case as of the Closing, along with reasonable supporting or underlying documentation used in the preparation of the Closing Statement, Buyer Certificate. Parent shall have 15 days to review it. Buyer deliver and its authorized representatives shall have reasonable access to Seller's accountants to furnish the extent required to complete their review of the Closing Statement, including, without limitation, the accountants' work papers used in preparation thereof. Unless Buyer delivers written notice to Seller on Securityholder Representative any additional supporting or prior to the 15th day after receipt of the Closing Statement specifying in reasonable detail its objections underlying documentation pertinent to the Closing Statement on Certificate as may be reasonably requested by the grounds that the Securityholder Representative. The Closing Statement (i) was not Certificate is to be prepared in accordance with this Section 1.4 or (ii) contained arithmetic errors, the parties shall be deemed to have accepted and agreed Accounting Principles with respect to the Closing Statement. If Buyer so notifies Seller calculation of such an objection to the Closing Statement, the parties shall within 15 days following the date of such notice (the "RESOLUTION PERIOD") attempt to resolve their differencesNet Working Capital and Excess Cash.
(c) At If the conclusion Securityholder Representative delivers written notice (the “Disputed Items Notice”) to Parent within thirty (30) days following receipt by the Securityholder Representative of the Resolution PeriodClosing Certificate, stating that the Securityholder Representative objects to any of the amounts remaining set forth in the Closing Certificate and specifying the nature of the dispute shalland the basis therefor, at then (i) the election Securityholder Representative and Parent shall in good faith attempt to resolve any such dispute and, if they so resolve all disputes, the Closing Certificate (and the amount or computation of either partyNet Working Capital, Selling Expenses, Facilities Renovation Balance, Excess Cash and the Net Adjustment Amount indicated therein), as amended to the extent necessary to reflect the resolution of the dispute, shall be submitted conclusive and binding on all parties, (ii) only those matters that are specified in such Disputed Items Notice shall be deemed to Price Waterhouse be in dispute, and all other matters shall be conclusive and binding on all parties, (iii) in the event that the Net Adjustment Amount shown on the Closing Certificate prepared by Parent is positive, within two (2) Business Days following the Securityholder Representative’s receipt of the Closing Certificate, Parent and the Securityholder Representative shall instruct the Escrow Agent to release any funds in the Working Capital Escrow Account, including interest earned thereon, to the Securityholders in accordance with their Pro Rata Percentages, and (iv) in the event that the Net Adjustment Amount shown on the Closing Certificate prepared by Parent is negative, within two (2) Business Days following the Securityholder Representative’s receipt of the Closing Certificate, Parent and the Securityholder Representative shall instruct the Escrow Agent to release any funds in the Working Capital Escrow Account in excess of the absolute value of the Net Adjustment Amount to the Securityholders in accordance with their Pro Rata Percentages. The Securityholder Representative shall not dispute the accounting principles and adjustments used in preparing the Closing Certificate with respect to Net Working Capital if such principles and adjustments are consistent with the Accounting Principles. If the Securityholder Representative does not deliver a Disputed Items Notice to Parent within thirty (30) days following receipt by the Securityholder Representative of the Closing Certificate, the computation of Net Working Capital, Selling Expenses, Facilities Renovation Balance, Excess Cash and the corresponding Net Adjustment Amount specified in the Closing Certificate shall be conclusively presumed to be true and correct in all respects and shall be binding upon all parties.
(d) If the Securityholder Representative and Parent, notwithstanding such good faith effort, are unable to agree upon all of the computations contained in the Closing Certificate as identified in the Disputed Items Notice within thirty (30) days after delivery of the Disputed Items Notice, then the Securityholder Representative and Parent jointly shall engage the Houston, Texas office of Deloitte & Touche LLP (the "NEUTRAL AUDITOR"“Accounting Firm”), to resolve any items in the Disputed Items Notice that have not been resolved and to make a determination of such amounts. The Neutral Auditor parties shall be engaged within five days after an election by either party to submit its objections to request that the Neutral Auditor, and each party agrees to execute, if requested by the Neutral Auditor, a reasonable engagement letter. All fees and expenses determination of the Neutral Auditor shall be borne equally by Seller and Buyer. The Neutral Auditor shall act as an arbitrator to determine, based solely on the written presentations by Seller and Buyer made within 15 days of the Neutral Auditor's engagement or such other reasonable period of time to which the parties agree, and not by independent review, only those issues still in dispute. The Neutral Auditor's determination Accounting Firm shall be made within 30 thirty (30) days after Seller's its selection pursuant to procedures mutually agreeable to by Parent and Buyer's written presentations have been made, the Securityholder Representative. The Accounting Firm shall be resolve only the items set forth in the Disputed Items Notice that are still in dispute and make a written statement delivered to Seller and Buyer and determination of the computation of the relevant amounts, which shall be final, binding, conclusive and nonappealablebinding on all parties. In resolving any disputed item, the Accounting Firm (i) shall be bound by the provisions of this Section 2.8 and any other relevant provisions of this Agreement and (ii) may not assign a value to any item greater than the greatest value for such items claimed by either Parent or the Securityholder Representative or less than the smallest value of such items claimed by either Parent or the Securityholder Representative.
(e) The term "FINAL CLOSING STATEMENT" fees, costs and expenses (“Accounting Firm Costs”) of the Accounting Firm’s review and determination as set forth in Section 2.8(d) above shall mean be allocated based on the definitive Closing Statement agreed inverse of the percentage its determination (before such allocation) bears to the amount of the Net Adjustment Amount in dispute as originally submitted to the Accounting Firm. For example, should the amount of the Net Adjustment Amount in dispute total in amount to $1,000 and the Accounting Firm awards $600 in favor of the Securityholder Representative’s position, 60% of the costs of its review would be borne by Seller Parent, and Buyer 40% of the costs of its review would be paid out of the Working Capital Escrow Account, as provided below. Any Accounting Firm Costs in respect of the Securityholder Representative’s position pursuant to this Section 2.8(e) shall be paid upon the final determination of the Net Adjustment Amount by release of funds to Parent from the Working Capital Escrow Account to the extent there are sufficient funds in the Working Capital Escrow Account; provided, however, that to the extent there are insufficient funds in the Working Capital Escrow Account, such payment shall be by release of all funds to Parent from the Working Capital Escrow Account and the remaining funds (or, if Backstop Securities have been issued, by release of Backstop Securities and/or funds from the Indemnity Escrow Account in accordance with Section 1.4(bthe Order of Priority) or the definitive Closing Statement resulting shall be released to Parent from the determination made Indemnity Escrow Account, in each case, by the Neutral Auditor Escrow Agent in accordance with this the terms of the Escrow Agreement. During the review by the Accounting Firm, Parent, the Securityholder Representative and the Surviving Corporation will each make available to the Accounting Firm interviews with such individuals, and such information, books and records and work papers, as may be reasonably required by the Accounting Firm to fulfill its obligations under Section 1.4(c) (2.8(d); provided, however, that the accountants of the Securityholder Representative, Parent or the Surviving Corporation shall not be obliged to make any work papers available to the Accounting Firm unless and until such firm has signed a customary agreement relating to such access to work papers in addition form and substance reasonably acceptable to those items theretofore agreed to by Seller and Buyer)such accountants.
Appears in 1 contract
Purchase Price Adjustment. (a) As soon as practicable but not later than 60 days following Prior to the Closing Date, Sellers shall cause the Target Companies to settle all intercompany or affiliated receivables and payables which are owed by and/or received by any Target Company, Seller or Affiliate of any Seller or Target Company except for any such receivable and payables which are owed by and/or received by any Target Company to another Target Company. At least two (2) Business Days prior to the Closing Date, the Limited Partnership on behalf of Sellers shall prepare and deliver to Buyer an estimated balance sheet of the Limited Partnership as of immediately prior to the Closing (the “Estimated Closing Balance Sheet”), the Preliminary Working Capital Schedule based on the Estimated Closing Balance Sheet, estimated amounts to be deducted from the Purchase Price pursuant to Section 2.1(b), including the Seller Transaction Expenses and the Payoff Amount (the “Other Closing Deductions”) and the estimated amount of the Closing Date Cash. The Key Seller shall consult with Buyer in the preparation of the Preliminary Working Capital Schedule, the Other Closing Deductions and the estimated amount of the Closing Date Cash. The Preliminary Working Capital Schedule will be used to determine the Closing Adjustment on the Closing Date.
(b) On or before the ninetieth (90th) day after the Closing Date, Buyer shall, and Parent shall cause Buyer to, prepare and deliver to the Key Seller a balance sheet of the Limited Partnership as of immediately prior to the Closing (the “Closing Balance Sheet”), a proposed Final Working Capital Schedule and Buyer’s proposed calculation of the Final Working Capital Value, the Closing Date Cash and the Other Closing Deductions (collectively, “Buyer Post-Closing Deliveries”). Key Seller shall have a period of sixty (60) days after Buyer’s delivery of the Buyer Post-Closing Deliveries during which to notify Buyer of any dispute of any item contained in the Buyer Post-Closing Deliveries, which notice will set forth in reasonable detail the basis for such dispute. If Key Seller does not notify Buyer of any such dispute within such sixty (60) day period, then the proposed Final Working Capital Schedule delivered by Buyer will be deemed to be the Final Working Capital Schedule and the other proposed calculations delivered in the Buyer Post-Closing Deliveries shall be deemed to be final. Buyer and Key Seller will cooperate in good faith to attempt to resolve any such dispute as promptly as possible, and upon such resolution, Buyer and Key Seller will prepare a working capital statement schedule in accordance with such resolution, which shall be deemed the Final Working Capital Schedule, and calculations of the Company as final amount of the close of business on Other Closing Deductions and the Closing Date Cash.
(c) If Buyer and Key Seller are unable to resolve any dispute regarding the "CLOSING STATEMENT"Buyer Post-Closing Deliveries within thirty (30) setting forth the current assets minus the current liabilities days after Buyer’s receipt of the Company notice from Key Seller that Key Seller disputes any aspect of such items, or such longer period as Buyer and Key Seller may mutually agree upon in writing, such dispute and each Party’s work papers related thereto will be submitted to, and all issues having a bearing on such dispute will be resolved by, (the "WORKING CAPITAL"x) on the basis described in Annex BKPMG, accompanied by a report from Arthur Andersen LLP; PROVIDED, HOWEVER, if the transactions contemplaxxx xx Xxxxxxx 4.11(a) or (by) occurif such accounting firm is unable or unwilling to take such assignment, the Closing Statement will be prepared as if the Com pany did not own the Dermablend Business a reputable independent accounting firm mutually agreed upon by Buyer and Key Seller (such identified accounting firm or the National Cosmetics Business and the Iman Business as of the Closing Dateagreed upon accounting firm, as the case may be; PROVIDED FURTHER that if Buyer retains , the Dermablend Business and“Selected Firm”). Such resolution will be final and binding on the Parties. The Parties will direct the Selected Firm to use commercially reasonable efforts to complete its work within thirty (30) days after its engagement. In resolving any matters in dispute, pursuant the Selected Firm may not assign a value to Section 4.11(b)any item in dispute greater than the greatest value for such item assigned by Buyer, sells on the National Cosmetics Business one hand, or the Key Seller, on the other hand, or less than the smallest value for such item assigned by Buyer, on the one hand, or the Key Seller, on the other hand. The Selected Firm’s determination of the Final Working Capital Schedule, the final Closing Date Cash and the Iman Business, the Dermablend Business final Other Closing Deductions will also include the net accounts receivable (other than the Designated Receivables (as defined in Section 4.11)), bank overdraft, accounts payable and accrued expenses related to the National Cosmetics Business and the Iman Business. be based solely on presentations by Key Seller and its authorized representatives shall have reasonable access to all relevant books and records and employees of the Company following the Closing Date to the extent required to complete preparation of the Closing StatementBuyer, including, without limitation, preparation of any financial reports or schedules needed to complete the Closing Statement. Seller and Buyer shall split equally the cost of preparing and delivering the Closing Statement.
(b) After receipt of the Closing Statement, Buyer shall have 15 days to review it. Buyer and its authorized representatives shall have reasonable access to Seller's accountants to the extent required to complete their review of the Closing Statement, including, without limitation, the accountants' work papers used in preparation thereof. Unless Buyer delivers written notice to Seller on or prior to the 15th day after receipt of the Closing Statement specifying in reasonable detail its objections to the Closing Statement on the grounds that the Closing Statement (i) was not prepared which are in accordance with the guidelines and procedures set forth in this Section 1.4 or Agreement (ii) contained arithmetic errorsi.e., not on the parties shall be deemed to have accepted and agreed to the Closing Statement. If Buyer so notifies Seller basis of such an objection to the Closing Statement, the parties shall within 15 days following the date of such notice (the "RESOLUTION PERIOD") attempt to resolve their differences.
(c) At the conclusion of the Resolution Period, any amounts remaining in dispute shall, at the election of either party, be submitted to Price Waterhouse (the "NEUTRAL AUDITOR"independent review). The Neutral Auditor shall be engaged within five days after an election by either party to submit Selected Firm’s determination of the Final Working Capital Schedule, the final Closing Date Cash and the final Other Closing Deductions will become final and binding on the Parties on the date the Selected Firm delivers its objections final resolution in writing to the Neutral AuditorParties. The fees, and each party agrees to execute, if requested by the Neutral Auditor, a reasonable engagement letter. All fees costs and expenses of the Neutral Auditor shall Selected Firm (i) will be borne equally by Sellers in the proportion that the aggregate dollar amount of all such disputed items so submitted that are resolved against Key Seller (as finally determined by the Selected Firm) bears to the aggregate dollar amount of such items so submitted and (ii) will be borne by Buyer in the proportion that the aggregate dollar amount of such disputed items so submitted that are resolved against Buyer bears to the aggregate dollar amount of all such items so submitted.
(d) Buyer will, and Parent will cause Buyer to, grant Key Seller and Buyer. The Neutral Auditor shall act as an arbitrator any of its advisors reasonable access to determine, based solely on the written presentations by Seller books and Buyer made within 15 days records of the Neutral Auditor's engagement or such other reasonable period of time Target Companies, including but not limited to which the parties agreework papers and back up materials relating to the Net Current Assets, the Net Current Liabilities, the Closing Date Cash and the Other Closing Deductions, and not the Limited Partnership’s relevant personnel and representatives, to allow Key Seller to handle its review of, and any disputes relating to, the Buyer Post-Closing Deliveries under this Section 2.5.
(e) If the Final Working Capital Value exceeds the Preliminary Working Capital Value (such difference being referred to herein as the “Unpaid Balance”), then, within five (5) Business Days after the determination of the Final Working Capital Value, Buyer will, and Parent will cause Buyer to, pay Sellers collectively (with each Seller entitled to receive its Pro Rata Percentage of such amount) an amount equal to the Unpaid Balance. If the final amount of the Closing Date Cash as determined pursuant to this Section 2.5 exceeds the estimated amount added to the Purchase Price at Closing then, within five (5) Business Days after the determination of the final amount of the Closing Date Cash, Buyer will, and Parent will cause Buyer to pay Sellers collectively (with each Seller entitled to receive its Pro Rata Percentage of such amount) an amount equal to such excess. If the final amount of the Other Closing Deductions as determined pursuant to this Section 2.5 is less than the estimated amount deducted from the Purchase Price at Closing for such items then, within five (5) Business Days after the determination of the final amount of the Other Closing Deductions, Buyer will, and Parent will cause Buyer to, pay Sellers collectively (with each Seller entitled to receive its Pro Rata Percentage of such amount) an amount equal to such difference.
(f) If the Final Working Capital Value is less than the Preliminary Working Capital Value (such difference being referred to herein as the “Overpayment”), then, within five (5) Business Days after the determination of the Final Working Capital Value, Sellers will pay Buyer an amount equal to the Overpayment (with each Seller to pay its Pro Rata Percentage of such amount). If the final amount of the Closing Date Cash as determined pursuant to this Section 2.5 is less than the estimated amount added to the Purchase Price at Closing, then, within five (5) Business Days after the determination of the final amount of the Closing Date Cash, Sellers will pay Buyer an amount equal to the difference (with each Seller to pay its Pro Rata Percentage of such amount). If the final amount of the other Closing Deductions as determined pursuant to this Section 2.5 is greater than the estimated amount deducted from the Purchase Price at Closing for such items, then, within five (5) Business Days after the determination of the final amount of the Other Closing Deductions, Sellers will pay Buyer an amount equal to the difference (with each Seller to pay its Pro Rata Percentage of such amount). Buyer may, upon Buyer’s election in its sole discretion, require payment of amounts pursuant to this Section 2.5(f) by independent review, only those issues still in dispute. The Neutral Auditor's determination shall be made within 30 days after Seller's and Buyer's written presentations have been made, shall be set forth in a written statement delivered release of funds to Seller and Buyer and shall be final, binding, conclusive and nonappealable. The term "FINAL CLOSING STATEMENT" shall mean from the definitive Closing Statement agreed to Escrow Account by Seller and Buyer the Escrow Agent in accordance with Section 1.4(bthe terms of the Escrow Agreement.
(g) or the definitive Closing Statement resulting from the determination made by the Neutral Auditor in accordance with All amounts paid pursuant to this Section 1.4(c) (in addition 2.5 will constitute an adjustment to those items theretofore agreed to by Seller and Buyer)the Purchase Price.
Appears in 1 contract
Purchase Price Adjustment. (a) As soon as practicable but not later than 60 Within sixty (60) days following after the Closing DateClosing, Seller the Sellers shall prepare and deliver to Buyer the Purchasers a working capital statement of the Company pro forma balance sheet prepared as of the close of business on the Closing Date (the "CLOSING STATEMENT"“Pro Forma Balance Sheet”). The Pro Forma Balance Sheet shall (i) setting forth be prepared from, and be in accordance with, the current assets minus the current liabilities books and records of the Company Sellers, (ii) be prepared consistent with the Sellers’ historical accounting practices and (iii) present fairly in all material respects the financial position of the Sellers as of the Closing Date. Additionally, the Pro Forma Balance Sheet shall identify each item of the Sellers’ inventory and prepaid expenses included in the Purchased Assets (the "WORKING CAPITAL"“Inventory and Prepaid Expenses”) on and the basis described in Annex B, accompanied by a report from Arthur Andersen LLP; PROVIDED, HOWEVER, if Sellers’ good faith determination of the transactions contemplaxxx xx Xxxxxxx 4.11(a) or fair value of each such item as of the Closing Date.
(b) occurThe Purchasers shall give written notice to the Sellers of any objection to the Sellers’ determination of Inventory and Prepaid Expenses set forth in the Pro Forma Balance Sheet (the “Objection Notice”) within thirty (30) days after the Purchasers’ receipt of the Pro Forma Balance Sheet. The Objection Notice shall specify in reasonable detail the items of Inventory and Prepaid Expenses to which the Purchasers object and shall provide a summary of reasons for such objections. In the event the Purchasers do not deliver the Objection Notice within such thirty (30) day period, the Closing Statement will Sellers’ determination of Inventory and Prepaid Expenses as set forth in the Pro Forma Balance Sheet shall be prepared as if deemed to be final and binding on the Com pany did not own the Dermablend Business or the National Cosmetics Business Purchasers.
(c) The Sellers and the Iman Business Purchasers shall use good faith efforts to resolve any dispute involving any matter set forth in the Objection Notice. If the parties are unable to resolve any dispute involving any matter set forth in the Objection Notice within thirty (30) days after receipt by the Sellers thereof, such dispute shall be referred for decision to a nationally recognized independent accounting firm chosen by the Purchasers and reasonably acceptable to the Sellers (the “Accounting Firm”) to decide the dispute within thirty (30) days of such referral. The scope of the Accounting Firm’s engagement shall be limited to the resolution of the disputed items described in the Objection Notice that the Sellers and the Purchasers are unable to resolve, and the recalculation, if any, of the sum of the Inventory and Prepaid Expenses as of the Closing Date in light of such resolution. The decision by the Accounting Firm with respect to such disputed items shall be final and binding on the Sellers and the Purchasers and shall be based upon a review of any relevant books and records or other documents requested by the Accounting Firm. The cost of retaining the Accounting Firm shall be borne equally by the Sellers and the Purchasers.
(d) If the sum of the Inventory and Prepaid Expenses as of the Closing Date, as finally determined, exceeds $700,000, then the case may be; PROVIDED FURTHER that if Buyer retains Purchasers shall pay the Dermablend Business and, pursuant to Section 4.11(b), sells the National Cosmetics Business and the Iman Business, the Dermablend Business will also include the net accounts receivable (other than the Designated Receivables (as defined in Section 4.11)), bank overdraft, accounts payable and accrued expenses related difference to the National Cosmetics Business and Sellers, in accordance with the Iman Business. Seller and percentages set forth opposite each Seller’s name in the column titled “IPE Percentage” on Exhibit A hereto, within fifteen (15) days after its authorized representatives final determination by wire transfer of immediately available United States funds into such accounts as shall have reasonable access been designated by the Sellers in writing to all relevant books and records and employees the Purchasers.
(e) If the sum of the Company following the Closing Date to the extent required to complete preparation Inventory and Prepaid Expenses as of the Closing StatementDate, includingas finally determined, without limitationis less than $700,000, preparation then the Sellers shall pay the difference to the Purchasers within fifteen (15) days after its final determination by wire transfer of any financial reports immediately available United States funds into such account or schedules needed accounts as shall have been designated by the Purchasers in writing to complete the Closing StatementSellers. Seller and Buyer shall split equally At the cost Purchasers’ discretion, the Purchasers may accept payment for all or a portion of preparing and delivering such amount by deducting such amount from the Closing Statement.
(b) After receipt amount of the Closing Statement, Buyer shall have 15 days to review it. Buyer and its authorized representatives shall have reasonable access to Seller's accountants Deferred Payments or the Earn-out Amount payable by the Purchasers to the extent required to complete their review of the Closing Statement, including, without limitation, the accountants' work papers used in preparation thereof. Unless Buyer delivers written notice to Seller on or prior to the 15th day after receipt of the Closing Statement specifying in reasonable detail its objections to the Closing Statement on the grounds that the Closing Statement (i) was not prepared in accordance with this Section 1.4 or (ii) contained arithmetic errors, the parties shall be deemed to have accepted and agreed to the Closing Statement. If Buyer so notifies Seller of such an objection to the Closing Statement, the parties shall within 15 days following the date of such notice (the "RESOLUTION PERIOD") attempt to resolve their differencesSellers.
(c) At the conclusion of the Resolution Period, any amounts remaining in dispute shall, at the election of either party, be submitted to Price Waterhouse (the "NEUTRAL AUDITOR"). The Neutral Auditor shall be engaged within five days after an election by either party to submit its objections to the Neutral Auditor, and each party agrees to execute, if requested by the Neutral Auditor, a reasonable engagement letter. All fees and expenses of the Neutral Auditor shall be borne equally by Seller and Buyer. The Neutral Auditor shall act as an arbitrator to determine, based solely on the written presentations by Seller and Buyer made within 15 days of the Neutral Auditor's engagement or such other reasonable period of time to which the parties agree, and not by independent review, only those issues still in dispute. The Neutral Auditor's determination shall be made within 30 days after Seller's and Buyer's written presentations have been made, shall be set forth in a written statement delivered to Seller and Buyer and shall be final, binding, conclusive and nonappealable. The term "FINAL CLOSING STATEMENT" shall mean the definitive Closing Statement agreed to by Seller and Buyer in accordance with Section 1.4(b) or the definitive Closing Statement resulting from the determination made by the Neutral Auditor in accordance with this Section 1.4(c) (in addition to those items theretofore agreed to by Seller and Buyer).
Appears in 1 contract
Purchase Price Adjustment. (a) As soon At least three (3) but no more than five (5) Business Days prior to the Closing, Timken shall cause to be prepared and delivered to Buyer a certificate setting forth in reasonable detail its good faith reasonable estimate of the Working Capital as practicable but of the Closing prepared in a manner consistent with the Working Capital example set forth in Section 4.8(d) of the Disclosure Schedule (“Estimated Working Capital”). If the Working Capital Target exceeds the Estimated Working Capital, the Purchase Price shall be reduced by an amount equal to the amount by which the Working Capital Target exceeds the Estimated Working Capital. If the Estimated Working Capital exceeds the Working Capital Target, the Purchase Price shall be increased by an amount equal to the amount by which the Estimated Working Capital exceeds the Working Capital Target. The Estimated Working Capital shall be subject to review by Buyer, and Timken and Buyer will cooperate and negotiate in good faith to resolve any dispute regarding the Estimated Working Capital; provided that if any item of dispute regarding the Estimated Working Capital is not later than 60 resolved by agreement in writing between Timken and Buyer prior to the Closing Date, then Timken’s reasonable estimate for such disputed item together with the resolved disputed items and the undisputed items contained in the Estimated Working Capital shall be deemed the Estimated Working Capital for purposes of this Section 2.10.
(b) Within sixty (60) days following the Closing Date, Seller Buyer shall prepare cause to be prepared and deliver delivered to Buyer Timken a working capital statement of the Company as of the close of business on the Closing Date (the "CLOSING STATEMENT"“Closing Working Capital Statement”) setting forth the current assets minus the current liabilities of the Company (the "WORKING CAPITAL") on the basis described in Annex B, accompanied by a report from Arthur Andersen LLP; PROVIDED, HOWEVER, if the transactions contemplaxxx xx Xxxxxxx 4.11(a) or (b) occur, the Closing Statement will be prepared as if the Com pany did not own the Dermablend Business or the National Cosmetics Business and the Iman Business Working Capital as of the Closing Date, as prepared in a manner consistent with the case may be; PROVIDED FURTHER that if Buyer retains the Dermablend Business and, pursuant to Section 4.11(b), sells the National Cosmetics Business and the Iman Business, the Dermablend Business will also include the net accounts receivable (other than the Designated Receivables (as defined Working Capital example set forth in Section 4.11)), bank overdraft, accounts payable and accrued expenses related to the National Cosmetics Business and the Iman Business. Seller and its authorized representatives shall have reasonable access to all relevant books and records and employees 4.8(d) of the Company Disclosure Schedule. Within forty-five (45) days following the Closing Date to the extent required to complete preparation receipt by Timken of the Closing Working Capital Statement, including, without limitation, preparation Timken shall deliver written notice to Buyer containing a reasonably detailed description of any financial reports or schedules needed dispute it has with respect to complete the content of the Closing Working Capital Statement; provided, however, that Timken may not dispute the accounting principles and adjustments used in preparing the Closing Working Capital Statement if they are consistent with the Working Capital example set forth in Section 4.8(d) of the Disclosure Schedule. Seller If Timken does not notify Buyer of a dispute with respect to the Closing Working Capital Statement within such forty-five (45) day period, the Closing Working Capital Statement will be final, conclusive and binding on the parties. In the event of such notification of a dispute, Buyer and Timken shall negotiate in good faith to resolve such dispute. If Buyer and Timken, notwithstanding such good faith effort, fail to resolve such dispute within thirty (30) days after Timken provides Buyer with written notice of its objections, then Buyer and Timken jointly shall engage the firm of PricewaterhouseCoopers LLP to resolve such dispute, and if PricewaterhouseCoopers LLP is unwilling or unable to serve in such capacity, then Buyer and Timken jointly shall engage the firm of Deloitte & Touche LLP, and if Deloitte & Touche LLP is unwilling or unable to serve in such capacity, Timken and Buyer shall split equally select, within ten (10) days after notification that Deloitte & Touche LLP is unwilling or unable to serve in such capacity, a mutually acceptable nationally recognized independent accounting firm to resolve such dispute (any such firm serving in such capacity pursuant to this sentence is referred to herein as the cost of preparing “Independent Auditor”). As promptly as practicable thereafter, Buyer and delivering Timken shall each prepare and submit a presentation to the Closing Statement.
Independent Auditor. As soon as practicable thereafter, but in no event later than thirty (b30) After receipt days after such presentation, Buyer and Timken shall cause the Independent Auditor to choose one of the Closing Statement, Buyer shall have 15 days parties positions as to review it. each disputed item based solely upon the presentation by Buyer and its authorized representatives shall have reasonable access to Seller's accountants to the extent required to complete their review of the Closing Statement, including, without limitation, the accountants' work papers used in preparation thereof. Unless Buyer delivers written notice to Seller on or prior to the 15th day after receipt of the Closing Statement specifying in reasonable detail its objections to the Closing Statement on the grounds that the Closing Statement (i) was not prepared in accordance with this Section 1.4 or (ii) contained arithmetic errors, the parties shall be deemed to have accepted Timken and agreed to the Closing Statement. If Buyer so notifies Seller of such an objection to the Closing Statement, the parties shall within 15 days following the date of such notice (the "RESOLUTION PERIOD") attempt to resolve their differences.
(c) At the conclusion of the Resolution Period, any amounts remaining in dispute shall, at the election of either party, be submitted to Price Waterhouse (the "NEUTRAL AUDITOR"). The Neutral Auditor shall be engaged within five days after an election by either party to submit its objections to the Neutral Auditor, and each party agrees to execute, if additional information requested by the Neutral Independent Auditor, a reasonable engagement letter. All fees and expenses of the Neutral Auditor shall be borne equally by Seller and Buyer. The Neutral Auditor parties shall act as an arbitrator to determine, based solely on share equally the written presentations by Seller and Buyer made within 15 days of the Neutral Auditor's engagement or such other reasonable period of time to which the parties agree, and not by independent review, only those issues still in dispute. The Neutral Auditor's determination shall be made within 30 days after Seller's and Buyer's written presentations have been made, shall be set forth in a written statement delivered to Seller and Buyer and shall be final, binding, conclusive and nonappealable. The term "FINAL CLOSING STATEMENT" shall mean the definitive Closing Statement agreed to by Seller and Buyer in accordance with Section 1.4(b) or the definitive Closing Statement resulting from the determination made by the Neutral Auditor in accordance with this Section 1.4(c) (in addition to those items theretofore agreed to by Seller and Buyer).fees and
Appears in 1 contract
Samples: Stock Purchase Agreement (Timken Co)
Purchase Price Adjustment. (a) No later than five calendar days prior to the Closing Date, the Seller shall deliver to the Buyer a statement (the “Estimated Closing Statement”) setting forth the Seller’s good faith estimate of:
(i) the Closing Working Capital;
(ii) the Closing Cash;
(iii) the Closing Indebtedness;
(iv) the Closing Transaction Costs; and
(v) the Closing Payment. The Estimated Closing Statement shall also include instructions that identify (A) the bank account for the Seller and the amount of the Closing Payment to be paid to such bank account at the Closing and (B) the bank accounts designated to facilitate direct payment by the Buyer of the Closing Indebtedness and the Closing Transaction Costs, in each case as set forth in the Estimated Closing Statement, to the applicable payees on behalf of the Company Entities. The Estimated Closing Statement shall be prepared and calculated using the applicable definitions contained in this Agreement, in accordance with the Accounting Principles and in the same format as the Sample Calculation. The Seller will review any comments proposed by the Buyer with respect to the Estimated Closing Statement, and will consider, in good faith, any appropriate changes; provided that the Seller shall not be required to make any changes proposed by the Buyer that it does not deem appropriate and in the event of any disagreement between the Seller and the Buyer prior to the Closing with respect to the Estimated Closing Statement, the Closing Amounts provided by the Seller in the Estimated Closing Statement shall be used for calculating the Closing Payment. At the request of the Buyer, the Seller shall reasonably cooperate with and assist, and shall cause the Company Entities and each of their respective Representatives to reasonably cooperate with and assist, the Buyer and its Representatives in the review of the Estimated Closing Statement (including by taking actions as may be reasonably required to cause the Seller and the Company Entities and their respective accountants to deliver to the Seller and its Representatives copies of their work papers relating to the preparation of the Estimated Closing Statement) and provide the Buyer and its Representatives with any information reasonably requested by the Buyer that is necessary for its review of the Estimated Closing Statement; provided that any such review conducted by the Buyer shall not delay the Closing.
(b) As soon as reasonably practicable following the Closing, but not in any event no later than 60 90 days following after the Closing Date, Seller shall prepare the Buyer will prepare, or cause to be prepared, and deliver to Buyer a working capital the Seller an unaudited statement of the Company as of the close of business on the Closing Date (the "CLOSING STATEMENT") “Closing Statement”), setting forth the current assets minus the current liabilities Buyer’s good faith calculation of each of the Company (Closing Amounts and the "WORKING CAPITAL") on Closing Payment. The Closing Statement shall be prepared and calculated using the basis described applicable definitions contained in Annex Bthis Agreement, accompanied by a report from Arthur Andersen LLP; PROVIDED, HOWEVER, if in accordance with the transactions contemplaxxx xx Xxxxxxx 4.11(a) or (b) occurAccounting Principles and in the same format as the Sample Calculation. In the event that the Buyer does not deliver the Closing Statement during such 90-day period, the Closing Amounts set forth in the Estimated Closing Statement will shall be prepared as if deemed final and binding and no Purchase Price Adjustment shall be payable.
(c) Upon receipt from the Com pany did not own Buyer, the Dermablend Business or Seller shall have 45 days to review the National Cosmetics Business Closing Statement (the “Review Period”). At the request of the Seller, the Buyer shall:
(i) reasonably cooperate with and assist, and shall cause the Iman Business as Company Entities and each of their respective Representatives to reasonably cooperate with and assist, the Seller and its Representatives in the review of the Closing Date, Statement (including by taking actions as may be reasonably required to cause the case may be; PROVIDED FURTHER that if Buyer retains the Dermablend Business and, pursuant to Section 4.11(b), sells the National Cosmetics Business and the Iman Business, the Dermablend Business will also include the net accounts receivable (other than the Designated Receivables (as defined in Section 4.11)), bank overdraft, accounts payable Company Entities and accrued expenses related their respective accountants to deliver to the National Cosmetics Business and the Iman Business. Seller and its authorized representatives shall have reasonable access to all relevant books and records and employees Representatives copies of the Company following the Closing Date their work papers relating to the extent required to complete preparation of the Closing Statement, including, without limitation, preparation of any financial reports or schedules needed to complete ); and
(ii) provide the Closing Statement. Seller and Buyer shall split equally its Representatives with any information reasonably requested by the cost of preparing and delivering the Closing Statement.
(b) After receipt of the Closing Statement, Buyer shall have 15 days to review it. Buyer and Seller that is necessary for its authorized representatives shall have reasonable access to Seller's accountants to the extent required to complete their review of the Closing Statement, including, without limitation. If the Seller disagrees with the Buyer’s computation of the Closing Amounts (each as set forth in the Closing Statement), the accountants' work papers used in preparation thereof. Unless Buyer delivers written notice to Seller shall, on or prior to the 15th last day after receipt of the Review Period, deliver a written notice to the Buyer (the “Notice of Objection”) that sets forth the Seller’s objections to the Buyer’s calculation of the Closing Statement specifying Amounts, as applicable. Any Notice of Objection shall specify those items or amounts with which the Seller disagrees and shall set forth the Seller’s calculation of the Closing Amounts and the Closing Payment based on such objections.
(d) If the Seller does not deliver a Notice of Objection to the Buyer with respect to an item contained in reasonable detail its objections to the Closing Statement on within the grounds that the Closing Statement (i) was not prepared in accordance with this Section 1.4 or (ii) contained arithmetic errorsReview Period, the parties Seller shall be deemed to have accepted and agreed to the Closing Statement. If Buyer so notifies Seller Buyer’s calculation of such an objection to item in the Closing Statement, the parties shall within 15 days following the date of and such notice (the "RESOLUTION PERIOD") attempt to resolve their differences.
(c) At the conclusion of the Resolution Period, any amounts remaining in dispute shall, at the election of either party, be submitted to Price Waterhouse (the "NEUTRAL AUDITOR"). The Neutral Auditor shall be engaged within five days after an election by either party to submit its objections to the Neutral Auditor, and each party agrees to execute, if requested by the Neutral Auditor, a reasonable engagement letter. All fees and expenses of the Neutral Auditor shall be borne equally by Seller and Buyer. The Neutral Auditor shall act as an arbitrator to determine, based solely on the written presentations by Seller and Buyer made within 15 days of the Neutral Auditor's engagement or such other reasonable period of time to which the parties agree, and not by independent review, only those issues still in dispute. The Neutral Auditor's determination shall be made within 30 days after Seller's and Buyer's written presentations have been made, shall be set forth in a written statement delivered to Seller and Buyer and calculation shall be final, binding, conclusive and nonappealablebinding. The term "FINAL CLOSING STATEMENT" shall mean If the definitive Seller delivers a Notice of Objection to the Buyer within the Review Period, the Buyer and the Seller shall, during the 30 days following such delivery or any mutually agreed extension thereof, use their good faith efforts to reach agreement on the disputed items and amounts in order to determine the amount of the disputed Closing Statement Amounts, as applicable, and the Closing Payment. If, at the end of such 30-day period or any mutually agreed extension thereof, the Buyer and the Seller are unable to by Seller and Buyer in accordance with Section 1.4(b) or the definitive Closing Statement resulting from the determination made by the Neutral Auditor in accordance with this Section 1.4(c) (in addition to those items theretofore agreed to by Seller and Buyer).resolve their
Appears in 1 contract
Purchase Price Adjustment. 3.3.1 Within thirty (a30) As soon as practicable but not later than 60 days following the Closing Date, Seller shall prepare a Closing Date balance sheet (the “Closing Date Balance Sheet”) in accordance with the Accounting Rules and deliver shall send to Buyer such Closing Date Balance Sheet together with a working capital statement setting forth its estimate of the Company as Closing Working Capital (the “Proposed Closing Working Capital”) and of the close of business Closing Liabilities (the “Proposed Closing Liabilities”). Such statement shall be reasonably detailed.
3.3.2 Buyer shall have sixty (60) days to review the Proposed Working Capital and the Proposed Closing Liabilities. In the event that Buyer disagrees with the Proposed Closing Working Capital or the Proposed Closing Liabilities, Buyer shall send to Seller no later than on the Closing Date last Business Day of such sixty-day period, a notice (the "CLOSING STATEMENT"“Notice of Objection”) setting forth in reasonable details the current assets minus modifications to be made to the current liabilities Proposed Closing Working Capital and/or the Proposed Closing Liabilities.
3.3.3 Seller shall then have twenty (20) days starting on the date of receipt of the Company Notice of Objection to review and respond to the Notice of Objection (the "WORKING CAPITAL") on the basis described in Annex B, accompanied by a report from Arthur Andersen LLP; PROVIDED, HOWEVER, if the transactions contemplaxxx xx Xxxxxxx 4.11(a) or (b) occur, the Closing Statement will be prepared as if the Com pany did not own the Dermablend Business or the National Cosmetics Business and the Iman Business as of the Closing Date, as the case may be; PROVIDED FURTHER that if Buyer retains the Dermablend Business and, pursuant to Section 4.11(b“Seller’s Response”), sells the National Cosmetics Business and the Iman Business, the Dermablend Business will also include the net accounts receivable (other than the Designated Receivables (as defined in Section 4.11)), bank overdraft, accounts payable and accrued expenses related to the National Cosmetics Business and the Iman Business. Seller and its authorized representatives shall have reasonable access to all relevant books and records and employees of the Company following the Closing Date to the extent required to complete preparation of the Closing Statement, including, without limitation, preparation of any financial reports or schedules needed to complete the Closing Statement. .
3.3.4 If Seller and Buyer are unable to resolve all of their disagreements within thirty (30) days following the receipt by Buyer of Seller’s Response, the items in dispute shall split equally the cost of preparing and delivering the Closing Statement.
(b) After receipt of the Closing Statement, Buyer shall have 15 days to review it. Buyer and its authorized representatives shall have reasonable access to Seller's accountants be submitted to the extent required to complete their review of the Closing Statement, including, without limitation, the accountants' work papers used in preparation thereof. Unless Buyer delivers written notice to Seller on or prior to the 15th day after receipt of the Closing Statement specifying in reasonable detail its objections to the Closing Statement on the grounds that the Closing Statement (i) was not prepared Independent Expert who shall determine in accordance with this Section 1.4 or Article 1592 of the French Civil Code the corrections to be made to the Proposed Closing Working Capital and/or the Proposed Closing Liabilities. The Independent Expert shall only make corrections to the Proposed Closing Working Capital and/or the Proposed Closing Liabilities in respect of the items still in dispute and shall make such corrections in accordance with the Accounting Rules. The Independent Expert shall render its decision as to the items in dispute in writing and shall give reasonable details in support of its decision. The Parties undertake to make their best efforts to allow the Independent Expert to render its decision within sixty (ii60) contained arithmetic errorsdays from the date on which the items in dispute are referred to it. In performing its duties, the parties Independent Expert shall comply with the principe du contradictoire. The Independent Expert’s decision shall be deemed to have accepted final and agreed to the Closing Statement. If binding on Buyer so notifies Seller of such an objection to the Closing Statement, the parties shall within 15 days following the date of such notice (the "RESOLUTION PERIOD") attempt to resolve their differences.
(c) At the conclusion of the Resolution Period, any amounts remaining in dispute shall, at the election of either party, be submitted to Price Waterhouse (the "NEUTRAL AUDITOR")and Seller. The Neutral Auditor shall be engaged within five days after an election by either party to submit its objections to the Neutral Auditor, and each party agrees to execute, if requested by the Neutral Auditor, a reasonable engagement letter. All fees and expenses of the Neutral Auditor Independent Expert shall be borne equally by Seller and Buyer. The Neutral Auditor shall act as an arbitrator to determine, based solely on the written presentations by Seller and Buyer made within 15 days of the Neutral Auditor's engagement or such other reasonable period of time to which the parties agree, and not by independent review, only those issues still in dispute. The Neutral Auditor's determination shall be made within 30 days after Seller's and Buyer's written presentations have been made, shall be set forth in a written statement delivered to Seller and Buyer and shall be final, binding, conclusive and nonappealable. The term "FINAL CLOSING STATEMENT" shall mean the definitive Closing Statement agreed to by Seller and Buyer in accordance with Section 1.4(b) or the definitive Closing Statement resulting from the determination made shared by the Neutral Auditor in accordance with this Section 1.4(c) (in addition to those items theretofore agreed to by Seller and Buyer)Parties.
Appears in 1 contract
Purchase Price Adjustment. (a) As soon as practicable but not Not later than 60 days following five Business Days prior to the Closing Date, Seller the Company shall provide Parent with an estimated consolidated balance sheet of the Acquired Entities as of the open of business on the Closing Date, in form and substance reasonably satisfactory to Parent (the “Estimated Closing Balance Sheet”).
(b) Within 60 days after the Closing Date, Parent shall prepare and deliver to Buyer Securityholders’ Agent a working capital statement (the “Statement”) setting forth a consolidated balance sheet of the Company Acquired Entities as of the close open of business on the Closing Date (the "CLOSING STATEMENT") setting forth the current assets minus the current liabilities of the Company (the "WORKING CAPITAL") on the basis described in Annex B“Closing Balance Sheet”), accompanied by a report from Arthur Andersen LLP; PROVIDED, HOWEVER, if the transactions contemplaxxx xx Xxxxxxx 4.11(a) or (b) occur, the Closing Statement will be prepared as if the Com pany did not own the Dermablend Business or the National Cosmetics Business and the Iman Business as its calculation of the Closing Date, as the case may be; PROVIDED FURTHER that if Buyer retains the Dermablend Business and, pursuant to Section 4.11(b), sells the National Cosmetics Business and the Iman BusinessIndebtedness Amount, the Dermablend Business will also include the net accounts receivable (other than the Designated Receivables (as defined in Section 4.11))Unrestricted Cash Amount, bank overdraft, accounts payable and accrued expenses related to the National Cosmetics Business and the Iman Business. Seller and its authorized representatives shall have reasonable access to all relevant books and records and employees resulting calculation of the Company following the Closing Date to the extent required to complete preparation of the Closing Statement, including, without limitation, preparation of any financial reports or schedules needed to complete the Closing Statement. Seller and Buyer shall split equally the cost of preparing and delivering the Closing Statement.
(b) After receipt of the Closing Statement, Buyer shall have 15 days to review it. Buyer and its authorized representatives shall have reasonable access to Seller's accountants to the extent required to complete their review of the Closing Statement, including, without limitation, the accountants' work papers used in preparation thereof. Unless Buyer delivers written notice to Seller on or prior to the 15th day after receipt of the Closing Statement specifying in reasonable detail its objections to the Closing Statement on the grounds that the Closing Statement (i) was not prepared in accordance with this Section 1.4 or (ii) contained arithmetic errors, the parties shall be deemed to have accepted and agreed to the Closing Statement. If Buyer so notifies Seller of such an objection to the Closing Statement, the parties shall within 15 days following the date of such notice (the "RESOLUTION PERIOD") attempt to resolve their differencesEstimated Purchase Price.
(c) During the 20 Business Day-period following the Securityholders’ Agent’s receipt of the Statement, the Securityholders’ Agent and its accountants shall have reasonable access, during normal business hours, to the working papers of Parent relating to the Statement. The Statement shall become final and binding upon the parties on the 20th Business Day following delivery thereof, unless the Securityholders’ Agent gives written notice of its disagreement with the Statement (a “Notice of Disagreement”) to Parent before such date. Any Notice of Disagreement shall (i) specify in reasonable detail the nature of any disagreement so asserted and (ii) only include disagreements based on the Closing Indebtedness Amount, the Unrestricted Cash Amount, or the resulting calculation of the Purchase Price not being calculated in accordance with this Agreement. If a Notice of Disagreement is delivered by the Securityholders’ Agent in accordance with the requirements of this Section 1.7 and Section 11.5, then the Statement (as revised in accordance with this sentence) shall become final and binding upon the Effective Time Holders and Parent on the earlier of (A) the date the Securityholders’ Agent and Parent resolve in writing any differences they have with respect to the matters specified in the Notice of Disagreement or (B) the date any disputed matters are finally resolved in writing by the Accounting Firm. During the 20 Business Day-period following the delivery of a Notice of Disagreement, the Securityholders’ Agent and Parent shall use commercially reasonable efforts in good faith to resolve in writing any differences that they may have with respect to the matters specified in the Notice of Disagreement. During such period Parent and its accountants shall have reasonable access, during normal business hours, to the working papers of the Securityholders’ Agent and the Securityholders’ Agent accountants prepared in connection with the Notice of Disagreement.
(d) At the conclusion end of such 20 Business Day-period, the Securityholders’ Agent and Parent shall submit to the Accounting Firm (as defined below) for resolution any and all matters that remain in dispute and that were included in the Notice of Disagreement. No later than 20 Business Days after Parent’s receipt of the Resolution PeriodNotice of Disagreement, any amounts remaining Parent may prepare and deliver to the Securityholders’ Agent a reply setting forth alternative positions with respect to the issues raised in dispute shall, at the election Statement or the Notice of either party, be submitted to Price Waterhouse Disagreement (the "NEUTRAL AUDITOR"“Reply”). The Neutral Auditor Accounting Firm shall not consider any issues not raised in the Statement, the Notice of Disagreement or the Reply. The “Accounting Firm” shall be engaged within five days after an election KPMG LLP or, if such firm is unable or unwilling to act, such other nationally recognized independent public accounting firm as shall be agreed upon by either party to submit its objections Parent and the Securityholders’ Agent. The Securityholders’ Agent and Parent shall jointly request that the Accounting Firm render a decision resolving the matters submitted to the Neutral AuditorAccounting Firm within 20 Business Days after such submission. In making its determination, the Accounting Firm shall not assign any value to any item comprising the Closing Indebtedness Amount, the Unrestricted Cash Xxxxxx, or the resulting calculation of the Purchase Price that is less than the lowest amount attributed to such item by Parent or the Securityholders’ Agent or greater than the highest amount attributed to such item by Parent or the Securityholders’ Agent nor may the Accounting Firm determine or question the parties’ determination of any matter not properly included in the Notice of Disagreement. The Accounting Firm shall have full authority to resolve all issues relating to the adjustment of the Purchase Price pursuant to this Section 1.7 (including procedural, legal, factual and each party agrees to executeaccounting issues). The Accounting Firm shall set forth its determination of all such issues in a written opinion, if requested by which shall be final and binding on the Neutral Auditor, a reasonable engagement letter. All parties.
(e) The cost of any arbitration (including the fees and expenses of the Neutral Auditor Accounting Firm and reasonable attorney fees and expenses of the parties) pursuant to this Section 1.7 shall be borne equally by Seller Parent and Buyer. The Neutral Auditor the Effective Time Holders in inverse proportion as they may prevail on matters resolved by the Accounting Firm, which proportionate allocations shall act as an arbitrator to determine, based solely also be determined by the Accounting Firm at the time its determination is rendered on the written presentations by Seller and Buyer made within 15 days merits of the Neutral Auditor's engagement matters submitted. All other fees and expenses incurred by Parent or such other reasonable period the Effective Time Holders in connection with the preparation, review or certification of time to which the parties agree, and not by independent review, only those issues still in dispute. The Neutral Auditor's determination Statement or the Notice of Disagreement shall be made within 30 days after Seller's and Buyer's written presentations have been made, shall be set forth in a written statement delivered to Seller and Buyer and shall be final, binding, conclusive and nonappealable. The term "FINAL CLOSING STATEMENT" shall mean the definitive Closing Statement agreed to by Seller and Buyer in accordance with Section 1.4(b) or the definitive Closing Statement resulting from the determination made borne by the Neutral Auditor in accordance with this Section 1.4(c) (in addition to those items theretofore agreed to by Seller party incurring such fees and Buyer)expenses.
Appears in 1 contract
Samples: Merger Agreement (Splunk Inc)
Purchase Price Adjustment. (a) As soon promptly as practicable after Closing, but not in no event later than 60 days following the Closing Date, Seller Buyer shall prepare and deliver to Buyer the Seller Parties a working capital statement (the “Closing Statement”) setting forth a calculation, with supporting detail, of the Company as Net Working Capital and the Purchase Price, together with Buyer’s determination of the close of business on the Closing Date (Balance Sheet. Buyer and its accountants shall be permitted to discuss with the "CLOSING STATEMENT") setting forth Seller Parties and their accountants the current assets minus proposed Closing Date Balance Sheet and Closing Statement, and shall have access upon reasonable notice at all reasonable times during normal business hours to the current liabilities work papers and supporting records of the Company (Seller Parties. If the "WORKING CAPITAL") on the basis described in Annex B, accompanied by a report from Arthur Andersen LLP; PROVIDED, HOWEVER, if the transactions contemplaxxx xx Xxxxxxx 4.11(a) or (b) occur, Seller Parties have any objections to the Closing Statement will be or Closing Date Balance Sheet as prepared as if the Com pany did not own the Dermablend Business or the National Cosmetics Business and the Iman Business as of the Closing Date, as the case may be; PROVIDED FURTHER that if Buyer retains the Dermablend Business and, pursuant to Section 4.11(b), sells the National Cosmetics Business and the Iman Businessby Buyer, the Dermablend Business will also include Seller Parties must, within 20 days after the net accounts receivable Seller Parties’ receipt thereof, give written notice (other than the Designated Receivables (as defined “Notice”) to Buyer specifying in Section 4.11)), bank overdraft, accounts payable and accrued expenses related to reasonable detail such objections. During such 20-day period after the National Cosmetics Business and the Iman Business. Seller and its authorized representatives shall have reasonable access to all relevant books and records and employees of the Company following the Closing Date to the extent required to complete preparation of the Closing Statement, including, without limitation, preparation of any financial reports or schedules needed to complete the Closing Statement. Seller and Buyer shall split equally the cost of preparing and delivering the Closing Statement.
(b) After Parties’ receipt of the Closing Statement, Buyer the Seller Parties and their accountants shall have 15 days be permitted to review it. discuss with Buyer and its authorized representatives shall have reasonable access to Seller's accountants to the extent required to complete their review of the proposed Closing Date Balance Sheet and Closing Statement, includingand shall have access upon reasonable notice at all reasonable times during normal business hours to the work papers and supporting records of Buyer. If the Seller Parties do not deliver the Notice within such 20-day period, without limitationBuyer’s determination of the amounts set forth on the Closing Statement and the Closing Date Balance Sheet shall be final, binding and conclusive on the Seller Parties and Buyer. With respect to any disputed amounts, the accountants' work papers used Seller Parties and Buyer shall negotiate in preparation thereof. Unless Buyer delivers written notice to Seller on or prior to good faith during the 15th 30-day period (the “Resolution Period”) after the date of Buyer’s receipt of the Closing Statement specifying in reasonable detail its objections to the Closing Statement on the grounds that the Closing Statement (i) was not prepared in accordance with this Section 1.4 or (ii) contained arithmetic errors, the parties shall be deemed to have accepted and agreed to the Closing Statement. If Buyer so notifies Seller of such an objection to the Closing Statement, the parties shall within 15 days following the date of such notice (the "RESOLUTION PERIOD") attempt Notice to resolve their differencesany such disputes.
(cb) At If the conclusion Seller Parties and Buyer are unable to resolve all such disputes within the Resolution Period, then, within five Business Days after the expiration of the Resolution Period, any amounts remaining in dispute shall, at the election of either party, all disputes shall be submitted to Price Waterhouse a nationally recognized, independent public accounting firm selected by mutual agreement of the Seller Parties and Buyer (or if they cannot agree, selected by mutual agreement of the independent public accounting firms regularly used by the Seller Parties and Buyer in the conduct of their respective businesses); provided, however, that in no event shall any such dispute be submitted to Ernst & Young LLP or PricewaterhouseCoopers LLP (the "NEUTRAL AUDITOR"“Accountant”). The Neutral Auditor , who shall be engaged to provide a final and conclusive resolution of all unresolved disputes within five days 60 Business Days after an election such engagement. In selecting such firm as may be selected in accordance with the foregoing sentence as the Accountant for purposes of this Agreement, the parties hereby waive any conflict or potential conflict arising from any services performed by either party to submit its objections to such firm for the Neutral AuditorSeller Parties, and each party agrees to execute, if requested by the Neutral Auditor, a reasonable engagement letter. All fees and expenses Buyer or any of the Neutral Auditor shall be borne equally by Seller and Buyertheir respective affiliates. The Neutral Auditor Accountant shall act as an arbitrator to determine, determine only those issues that remain in dispute and such determination shall be based solely on a review of the written presentations factual materials presented by the Seller Parties and Buyer. The Accountant shall have no authority to determine that any such disputed amount is outside the applicable range presented by Buyer in its Closing Statement and the Seller Parties in its Notice. The Seller Parties and Buyer made shall make their presentations within 15 30 days of after the Neutral Auditor's engagement or such other reasonable period of time dispute is submitted to which the parties agree, and not by independent review, only those issues still in disputeAccountant. The Neutral Auditor's Accountant’s determination shall be made within 30 days after Seller's and Buyer's written presentations have been madeof such presentations, shall be set forth in a written statement delivered to the Seller Parties and Buyer and shall be final, binding, binding and conclusive and nonappealableon the parties. The term "FINAL CLOSING STATEMENT" fees and expenses of the Accountant shall mean be allocated by the definitive Accountant between the Seller Parties, on the one hand, and Buyer, on the other hand, based on the aggregate percentage that the portions of the contested amounts not awarded to each party bear to the aggregate amounts contested by such party, and each party shall bear its own other expenses in connection therewith, including its attorneys’ and accountants’ fees.
(c) Upon the final determination pursuant to Section 3.2(a) of the actual Closing Statement agreed to Date Balance Sheet (the “Final Closing Date Balance Sheet”) and the actual Net Working Capital (the “Actual Net Working Capital Amount”), if the Actual Net Working Capital Amount exceeds $4,500,000.00, then the Purchase Price shall be increased by Seller the amount of such excess and Buyer in accordance with shall pay to the Seller Parties an amount equal to such excess.
(d) Any payment required to be made pursuant to Section 1.4(b3.2(c) or the definitive Closing Statement resulting from the determination shall be made by the Neutral Auditor in accordance with this Section 1.4(c) (in addition Seller Parties or Buyer, as the case may be, within three Business Days after final determination of the Actual Net Working Capital Amount, by wire transfer of immediately available funds to those items theretofore agreed to a bank account designated by Seller and Buyer)the other Party.
Appears in 1 contract
Purchase Price Adjustment. (a) As soon as practicable but not No later than 60 sixty (60) days following after the Closing Date, Seller Buyer shall prepare and (i) deliver to Buyer Seller a statement (the “Post-Closing Statement”) setting out its good faith calculation of actual Net Working Capital and the resulting Purchase Price, together with reasonable supporting detail with respect to the calculation of such amounts, including but not limited to its books, records, and working capital statement papers, and (ii) determine and further allocate the Purchase Price among the assets of the Company as Business in accordance with Section 1060 of the close of business Code and the Treasury Regulations thereunder and consistent with the methodologies detailed in Exhibit C (the “Tax Allocation”) and shall deliver a written statement to Seller describing such Tax Allocation (the “Tax Allocation Statement”). If Seller and Buyer agree on the Closing Date (the "CLOSING STATEMENT") setting forth the current assets minus the current liabilities calculation of the Company (Purchase Price set out in the "WORKING CAPITAL") on the basis described in Annex B, accompanied by a report from Arthur Andersen LLP; PROVIDED, HOWEVER, if the transactions contemplaxxx xx Xxxxxxx 4.11(a) or (b) occur, the Closing Statement will be prepared as if the Com pany did not own the Dermablend Business or the National Cosmetics Business and the Iman Business as of the Closing Date, as the case may be; PROVIDED FURTHER that if Buyer retains the Dermablend Business and, pursuant to Section 4.11(b), sells the National Cosmetics Business and the Iman Business, the Dermablend Business will also include the net accounts receivable (other than the Designated Receivables (as defined in Section 4.11)), bank overdraft, accounts payable and accrued expenses related to the National Cosmetics Business and the Iman Business. Seller and its authorized representatives shall have reasonable access to all relevant books and records and employees of the Company following the Closing Date to the extent required to complete preparation of the Post-Closing Statement, including, without limitation, preparation of any financial reports or schedules needed to complete the Closing Statementthen such calculation shall be considered final. If Seller and Buyer agree on any portion of the Tax Allocation set out in the Tax Allocation Statement, then such portion of the Tax Allocation shall split equally the cost of preparing and delivering the Closing Statementbe considered final.
(b) After receipt If Seller disagrees with the calculation of the Purchase Price set out in the Post-Closing Statement or with any portion of the Tax Allocation set out in the Tax Allocation Statement, Seller shall notify Buyer in writing of such disagreement within forty (40) days after delivery by Buyer to Seller of the Post-Closing Statement or the Tax Allocation Statement, as applicable. During such time period, and until the amount of the Purchase Price and Tax Allocation are final, upon request, Buyer shall have 15 days to review it. Buyer provide Seller and its authorized representatives shall have advisors reasonable access access, during normal business hours, to Seller's accountants Buyer’s books and records, personnel, and working papers prepared by Buyer and/or Buyer’s accountants, and such historical financial information of the Business (to the extent required to complete their review of the Closing Statementin Buyer’s possession), including, without limitation, the accountants' work papers used in preparation thereof. Unless Buyer delivers written notice calculating the Purchase Price or making the Tax Allocation, as applicable (subject to Seller on or prior and its advisors who will have access to the 15th day after receipt of the Closing Statement specifying such books and records executing a customary confidentiality agreement with Buyer in reasonable detail its objections to the Closing Statement on the grounds that the Closing Statement (i) was not prepared in accordance with this Section 1.4 or (ii) contained arithmetic errors, the parties shall be deemed to have accepted and agreed to the Closing Statement. If Buyer so notifies Seller of such an objection to the Closing Statement, the parties shall within 15 days following the date of such notice (the "RESOLUTION PERIOD") attempt to resolve their differencesa form reasonably requested by Buyer).
(c) At If Seller fails to timely notify Buyer of its disagreement with either the conclusion calculation of the Resolution PeriodPurchase Price set out in the Post-Closing Statement or with any portion of the Tax Allocation set out in the Tax Allocation Statement, then the calculation of the Purchase Price set out in the Post-Closing Statement or the Tax Allocation set out in the Tax Allocation Statement, as applicable, shall be considered final.
(d) If Seller timely notifies Buyer of its disagreement with the calculation of the Purchase Price set out in the Post-Closing Statement or with any amounts remaining portion of the Tax Allocation set out in the Tax Allocation Statement, then Buyer and Seller shall work in good faith to resolve such disagreement and after such resolution, the agreed upon calculation of Purchase Price or Tax Allocation, as applicable, shall be considered final. If Buyer and Seller are unable to resolve all disagreements within forty (40) days of Seller first notifying Buyer of its disagreement, then Buyer and Seller shall submit their dispute shall, at the election of either party, be submitted to Price Waterhouse a mutually agreeable nationally recognized accounting firm (the "NEUTRAL AUDITOR"“Accounting Arbitrator”). The Neutral Auditor Accounting Arbitrator shall be engaged within five deliver to Buyer and Seller, as promptly as practicable, but in no event later than sixty (60) days after an election by either party to submit its objections to retention, a written report setting out the Neutral Auditorresolution of any unresolved disagreements between Buyer and Seller, determined in accordance with the terms of this Agreement, and the reasons therefor. Buyer and Seller will cooperate with the Accounting Arbitrator during the term of its engagement and each party of the parties agrees to execute, if requested by the Neutral AuditorAccounting Arbitrator, a reasonable an engagement letterletter reasonably satisfactory to such party. All fees and expenses of In resolving the Neutral Auditor disputed items, the Accounting Arbitrator (A) shall be borne equally bound by Seller and Buyer. The Neutral Auditor the provisions of this Section 2.3(d), (B) may not assign a value to any item greater than the greatest value claimed for such item or less than the smallest value for such item claimed by either Buyer or Seller, (C) shall act as an arbitrator to determine, based rely solely on the written presentations by Seller and Buyer made within 15 days submissions of the Neutral Auditor's engagement parties and shall not conduct an independent investigation, and (D) shall limit its decision to such items as are in dispute and to only those adjustments as are necessary to comply with the provisions of this Agreement or such other reasonable period to correct any mathematical or clerical errors. The decision of time the Accounting Arbitrator with regards to which the calculation of the Purchase Price shall be binding on the parties agreehereto. Further, Buyer, Seller, and not by independent review, only those issues still in dispute. The Neutral Auditor's determination their respective Affiliates shall be made within 30 days after Seller's and Buyer's written presentations have been made, shall be set forth in a written statement delivered to Seller and Buyer and shall be final, binding, conclusive and nonappealable. The term "FINAL CLOSING STATEMENT" shall mean the definitive Closing Statement agreed to by Seller and Buyer in accordance with Section 1.4(b) or the definitive Closing Statement resulting from the determination made bound by the Neutral Auditor Tax Allocation, as determined in accordance with this Section 1.4(c2.3(d) or by the Accounting Arbitrator, as applicable, for all Tax purposes and shall file, and cause their respective Affiliates to file, all Tax returns (including IRS Form 8594) in a manner consistent therewith and may take no other position unless required to do so by applicable Law; provided, that no party shall be unreasonably impeded in its ability and discretion to negotiate, compromise and/or settle any tax audit, claim, or similar proceedings in connection with such Tax Allocation. The cost of any such review and report of the Accounting Arbitrator shall be paid on a proportionate basis by Buyer, on the one hand, and Seller, on the other hand, based on the percentage which the portion of the contested amount not awarded to such party bears to the amount contested by such party, as finally determined by the Accounting Arbitrator.
(e) The Purchase Price, as finally determined pursuant to this Section 2.3, shall be referred to herein as the “Final Purchase Price”.
(i) In the event that the Estimated Purchase Price is greater than the Final Purchase Price, then, within five (5) Business Days following the determination of the Final Purchase Price, Seller shall pay to Buyer, by wire transfer of immediately available funds to the account designated by Buyer in writing, an amount equal to the difference between the amount of the Estimated Purchase Price and the amount of the Final Purchase Price.
(ii) In the event that the Final Purchase Price is greater than the Estimated Purchase Price, then, within five (5) Business Days of the determination of the Final Purchase Price, Buyer shall pay to Seller, by wire transfer of immediately available funds to the account designated by Seller in writing, an amount equal to the difference between the amount of the Final Purchase Price and the amount of the Estimated Purchase Price.
(f) Any rights accruing to a party under this Section 2.3 shall be in addition to those items theretofore agreed and independent of the rights to by Seller and Buyer)indemnification under Article VII.
Appears in 1 contract
Purchase Price Adjustment. (a) Seller shall deliver the Estimated Closing Statement to Purchaser no later than three (3) Business Days prior to the Closing Date. Seller shall (i) reasonably cooperate with Purchaser and its representatives in connection with Purchaser’s review of the Estimated Closing Statement, including by (x) providing reasonable access to (1) the books, records and other documents (including work papers and financial statements) pertaining to or used in connection with the preparation of the Estimated Closing Statement (including providing Purchaser with copies thereof (as reasonably requested by Purchaser)) and (2) Seller and its representatives, and (y) consider in good faith any revisions to the Estimated Closing Statement proposed by Purchaser prior to the Closing.
(b) As soon promptly as practicable after the Closing, but not in no event later than 60 ninety (90) days following after the Closing Date, Seller Purchaser shall prepare and deliver to Buyer a working capital statement of the Company as of the close of business on the Closing Date (the "CLOSING STATEMENT") setting forth the current assets minus the current liabilities of the Company (the "WORKING CAPITAL") on the basis described in Annex B, accompanied by a report from Arthur Andersen LLP; PROVIDED, HOWEVER, if the transactions contemplaxxx xx Xxxxxxx 4.11(a) or (b) occur, the Closing Statement will be prepared as if the Com pany did not own the Dermablend Business or the National Cosmetics Business and the Iman Business as of the Closing Date, as the case may be; PROVIDED FURTHER that if Buyer retains the Dermablend Business and, pursuant to Section 4.11(b), sells the National Cosmetics Business and the Iman Business, the Dermablend Business will also include the net accounts receivable (other than the Designated Receivables (as defined in Section 4.11)), bank overdraft, accounts payable and accrued expenses related to the National Cosmetics Business and the Iman Business. Seller and its authorized representatives shall have reasonable access to all relevant books and records and employees of the Company following the Closing Date to the extent required to complete preparation of the Closing Statement, including, without limitation, preparation of any financial reports or schedules needed to complete the Closing Statement. Seller accompanied by reasonably detailed calculations and Buyer shall split equally the cost of preparing and delivering the Closing Statementreasonable supporting documentation.
(bc) After receipt Seller shall have thirty (30) days after delivery of the Closing StatementStatement (“Review Period”) to deliver to Purchaser a written response indicating its good faith disagreement with the Closing Statement (“Notice of Disagreement”). Any Notice of Disagreement shall specify in reasonable detail the dollar amount, Buyer nature and basis of any such good faith disagreement. During the Review Period, Purchaser shall have 15 days to review it. Buyer reasonably cooperate with Seller and its authorized representatives shall have reasonable access to in connection with Seller's accountants to the extent required to complete their ’s review of the Closing Statement, includingincluding by (i) providing Seller and its representatives reasonable access to the books, without limitation, the accountants' records and other documents (including work papers and financial statements) pertaining to or used in connection with the preparation thereof. Unless Buyer delivers written notice to Seller on or prior to the 15th day after receipt of the Closing Statement specifying in reasonable detail its objections to the Closing Statement on the grounds that the Closing Statement and provide Seller with copies thereof (ias reasonably requested by Seller) was not prepared in accordance with this Section 1.4 or and (ii) contained arithmetic errors, providing Seller and its representatives reasonable access to Purchaser’s and the parties shall be deemed to have accepted Business’s employees and agreed to the Closing Statementadvisors. If Buyer so notifies Seller does not deliver a Notice of such an objection Disagreement to Purchaser within the Review Period or delivers a statement accepting the Closing Statement, the parties Closing Statement (together with the Adjustment Amount reflected in the Closing Statement) shall within 15 be final and binding upon the Parties for purposes of Section 2.3(e) and not subject to appeal. If a Notice of Disagreement is received by Purchaser, then the Closing Statement (as revised in accordance with Section 2.3(d), if applicable) shall become final and binding on the Parties on the earlier of (i) the date upon which Seller and Purchaser agree in writing with respect to all matters specified in the Closing Statement and Notice of Disagreement, or (ii) the date upon which the Final Closing Statement is issued by the Independent Accounting Firm.
(d) During the first thirty (30) days after the date upon which Xxxxxxxxx receives a Notice of Disagreement, the Parties shall attempt to resolve in writing any differences that they may have with respect to all matters specified in the Notice of Disagreement. If at the end of such thirty (30)-day period (or earlier by mutual agreement) the Parties have not reached agreement with respect to all disputed matters specified in the Notice of Disagreement, the matters that remain in dispute (the “Disputed Items”) may as promptly as reasonably possible thereafter be submitted to the Independent Accounting Firm by either Seller or Purchaser for review and resolution; provided, however, that any materials so provided to the Independent Accounting Firm shall also simultaneously be made available to the other disputing Party. The Independent Accounting Firm shall be jointly engaged by Xxxxxx and Purchaser. The Independent Accounting Firm shall offer Seller and Purchaser the opportunity to provide written submissions regarding their positions on the Disputed Items, which written submissions shall be provided to the Independent Accounting Firm, if at all, no later than ten (10) days after the date of engagement of the Independent Accounting Firm. Seller and Purchaser shall also have the opportunity to submit a written response to the other Party’s written submission to the Independent Accounting Firm, which such response statement shall be delivered to the Independent Accounting Firm no later than ten (10) days following the date of receipt of such notice (the "RESOLUTION PERIOD") attempt other Party’s initial written statement. The failure of Seller or Purchaser to resolve their differences.
(c) At the conclusion deliver its written submission of the Resolution Period, any amounts remaining in dispute shall, at Disputed Items to the election Independent Accounting Firm or response to the other Party’s initial written submission within ten (10) Business Days of either party, be submitted receipt thereof shall constitute a waiver of such Party’s right to Price Waterhouse (submit the "NEUTRAL AUDITOR")same to the Independent Accounting Firm. The Neutral Auditor determination of the Independent Accounting Firm shall be engaged within five days after an election by either party to submit its objections to made solely in accordance with the Neutral Auditor, terms and each party agrees to execute, if requested by the Neutral Auditor, a reasonable engagement letter. All fees procedures set forth in this Agreement and expenses of the Neutral Auditor shall be borne equally on such written submissions by Seller and BuyerPurchaser and their respective representatives in accordance with the terms and procedures set forth in this Agreement, and shall not be by independent review. The Neutral Auditor Seller and Purchaser will instruct the Independent Accounting Firm to deliver a written report (which report shall include a written statement of findings and conclusions, including a written explanation of its reasoning with respect to such findings and conclusions) resolving only the disputed matters and setting forth the basis for such resolution and the Closing Statement reflecting such decision within twenty (20) days after Seller and Purchaser submit in writing (or have had the opportunity to submit in writing but have not submitted) their positions as to the Disputed Items. In reaching its written determination, the Independent Accounting Firm shall (i) act as an arbitrator to determineexpert and not as an arbitrator, (ii) resolve only the Disputed Items and all determinations shall be based solely on the written presentations by of Seller and Buyer made within 15 days of the Neutral Auditor's engagement or such other reasonable period of time to which the parties agreePurchaser and their respective representatives, and not by independent review, only those issues still and (iii) for each Disputed Item, assign a value that is not greater than the greatest value for such item claimed by either Seller or Purchaser in disputethe Notice of Disagreement or the Closing Statement, respectively, nor smaller than the smallest value for such item claimed by either Seller or Purchaser in the Notice of Disagreement or the Closing Statement, respectively. All offers to compromise shall be confidential and shall not be disclosed to the Independent Accounting Firm, and there shall be no ex parte communications or meetings with the Independent Accounting Firm regarding the subject matter hereof without the Parties’ prior written consent. The Neutral Auditor's determination decision of the Independent Accounting Firm shall be made within 30 days after Seller's final and Buyer's written presentations have been madebinding on the Parties. Judgment may be entered upon the determination of the Independent Accounting Firm in any court having jurisdiction over the Party against which such determination is to be enforced. As used in this Agreement, shall be set forth in a written statement delivered to Seller and Buyer and shall be final, binding, conclusive and nonappealable. The the term "FINAL CLOSING STATEMENT" “Final Closing Statement” shall mean the definitive Closing Statement agreed delivered (or deemed delivered) pursuant to by Seller and Buyer in accordance Section 2.3(b), as subsequently adjusted, if applicable, pursuant to this Section 2.3(d) to reflect any subsequent written agreement between the Parties with Section 1.4(b) respect thereto and, if submitted to the Independent Accounting Firm, any amendments or modifications to the definitive Closing Statement resulting from the determination made decided by the Neutral Auditor Independent Accounting Firm. The Independent Accounting Firm shall conduct its determination activities in accordance a manner wherein all materials submitted to it are held in confidence and shall not be disclosed to third parties, and Seller or Purchaser may require that the Independent Accounting Firm enter into a customary form of confidentiality agreement with respect to the work papers and other documents and information provided to the Independent Accounting Firm pursuant to this Section 1.4(c) (in addition to those items theretofore agreed to by Seller and Buyer)Agreement.
Appears in 1 contract
Samples: Asset Purchase Agreement (CF Industries Holdings, Inc.)
Purchase Price Adjustment. (a) As soon as practicable but not later than 60 Within sixty (60) days following the Closing Date, Seller Parent shall prepare cause to be prepared and deliver delivered to Buyer a working capital statement the Shareholders' Agent an unaudited balance sheet of the Company as of the close of business on the Closing Date Effective Time (the "CLOSING STATEMENTEffective Time Balance Sheet") setting forth the current assets minus the current liabilities of the Company (the "WORKING CAPITAL") on the basis described in Annex B, accompanied by a report from Arthur Andersen LLP; PROVIDED, HOWEVER, if the transactions contemplaxxx xx Xxxxxxx 4.11(a) or (b) occur, the Closing Statement ). The Effective Time Balance Sheet will be prepared as if in accordance with GAAP on a basis consistent with the Com pany did not own the Dermablend Business or the National Cosmetics Business and the Iman Business as most recent regularly prepared financial statements of the Closing Date, as the case may be; PROVIDED FURTHER that if Buyer retains the Dermablend Business and, pursuant to Section 4.11(b), sells the National Cosmetics Business and the Iman Business, the Dermablend Business will also include the net accounts receivable (other than the Designated Receivables (as defined in Section 4.11)), bank overdraft, accounts payable and accrued expenses related to the National Cosmetics Business and the Iman BusinessCompany. Seller and its authorized representatives shall have reasonable access to all relevant books and records and employees of the Company following the Closing Date to the extent required to complete preparation of the Closing Statement, including, without limitation, preparation of any financial reports or schedules needed to complete the Closing StatementTHE SYMBOL "[***]" IS USED TO INDICATE THAT A PORTION OF THE EXHIBIT HAS BEEN OMITTED AND FILED SEPARATELY WITH THE COMMISSION. Seller and Buyer shall split equally the cost of preparing and delivering the Closing StatementCONFIDENTIAL TREATMENT HAS BEEN REQUESTED WITH RESPECT TO THE OMITTED PORTIONS.
(b) After receipt In the event that Company's Net Assets at the Effective Time as set forth in the Effective Time Balance Sheet are (A) less than $1,000,000 by an amount less than $25,000, Parent will send an invoice to the Shareholders' Agent for the amount equal to such difference and the Shareholders' Agent shall pay such invoice within twenty (20) days of receipt, (B) less than $1,000,000 by an amount more than $25,000, the amount of the Closing Statement, Buyer shall have 15 days to review it. Buyer and its authorized representatives shall have reasonable access to Seller's accountants to first installment of Installment Cash Merger Consideration will be reduced by the extent required to complete their review amount of the Closing Statement, including, without limitation, the accountants' work papers used in preparation thereof. Unless Buyer delivers written notice to Seller on or prior to the 15th day after receipt of the Closing Statement specifying in reasonable detail its objections to the Closing Statement on the grounds that the Closing Statement (i) was not prepared in accordance with this Section 1.4 such difference or (iiC) contained arithmetic errorsmore than $1,000,000, Parent shall promptly pay the parties excess amount as additional Initial Cash Merger Consideration, provided, however, that if the Shareholders' Agent shall be deemed to have accepted and agreed to the Closing Statement. If Buyer so notifies Seller of such make an objection to the Closing StatementEffective Time Balance Sheet within twenty (20) days of receipt of the Effective Time Balance Sheet, Parent and the parties Shareholders' Agent shall within 15 days following the date of such notice (the "RESOLUTION PERIOD") attempt to resolve their differencesany such objections within ten (10) days of the receipt by Parent of such objection. If Parent and the Shareholders' Agent are unable to resolve any such objection within ten (10) days, Parent and the Shareholders' Agent shall promptly retain a mutually acceptable independent nationally recognized accounting firm to audit such Effective Time Balance Sheet, which audit shall be conclusive and binding upon Parent, Surviving Corporation, the Shareholders' Agent and the Company Shareholders, and none of Parent, Surviving Corporation, the Shareholders' Agent or any Company Shareholder shall have any further right to challenge the calculations, and the cost of such accounting firm's audit shall be borne by the Company Shareholders and be deducted from the value of the first installment of Installment Cash Merger Consideration if the amount of Net Assets at the Effective Time as calculated by such firm does not exceed the amount of Net Assets at the Effective Time as set forth in the Signing Date Balance Sheet or the Effective Time Balance Sheet by at least $25,000, otherwise Parent shall bear the cost of such audit.
(c) At the conclusion of the Resolution Period, any amounts remaining in dispute shall, at the election of either party, be submitted Any payments made pursuant to Price Waterhouse (the "NEUTRAL AUDITOR"). The Neutral Auditor Section 5.20(b) shall be engaged within five days after an election by either party to submit its objections treated as adjustments to the Neutral Auditor, and each party agrees Cash Merger Consideration. Any payment by Parent under Section 5.20(b) shall increase the Initial Cash Consideration. Any payment to execute, if requested by Parent under Section 5.20(b) shall reduce the Neutral Auditor, a reasonable engagement letter. All fees and expenses of the Neutral Auditor shall be borne equally by Seller and Buyer. The Neutral Auditor shall act as an arbitrator to determine, based solely on the written presentations by Seller and Buyer made within 15 days of the Neutral Auditor's engagement or such other reasonable period of time to which the parties agree, and not by independent review, only those issues still in dispute. The Neutral Auditor's determination shall be made within 30 days after Seller's and Buyer's written presentations have been made, shall be set forth in a written statement delivered to Seller and Buyer and shall be final, binding, conclusive and nonappealable. The term "FINAL CLOSING STATEMENT" shall mean the definitive Closing Statement agreed to by Seller and Buyer in accordance with Section 1.4(b) Initial Cash Consideration or the definitive Closing Statement resulting from the determination made by the Neutral Auditor in accordance with this Section 1.4(c) (in addition to those items theretofore agreed to by Seller and Buyer)Installment Cash Merger Consideration, as applicable.
Appears in 1 contract
Samples: Agreement and Plan of Reorganization (Virage Logic Corp)
Purchase Price Adjustment. (a) As soon as practicable but not later than 60 Within ninety (90) days following after the Closing Date, Seller Purchaser shall prepare and deliver to Buyer the Seller Representative a working capital written statement of the Company as of the close of business on the (“Purchaser’s Closing Date (the "CLOSING STATEMENT"Payment Calculation Statement”) setting forth Purchaser’s calculations as of Closing (“Purchaser’s Proposed Calculations”) of (i) the current assets minus Net Working Capital, (ii) the current liabilities of Debt Amount, (iii) the Company Transaction Expenses, and (iv) the "WORKING CAPITAL") cash payment actually due to the Sellers in accordance with Section 2.1 based on the basis described amounts in Annex B, accompanied by a report from Arthur Andersen LLP; PROVIDED, HOWEVER, if the transactions contemplaxxx xx Xxxxxxx 4.11(aforegoing clauses (i) or – (biii) occur, the (“Purchaser’s Closing Statement will be prepared as if the Com pany did not own the Dermablend Business or the National Cosmetics Business and the Iman Business as of the Closing Date, as the case may be; PROVIDED FURTHER that if Buyer retains the Dermablend Business and, pursuant to Section 4.11(bPayment”), sells the National Cosmetics Business and the Iman Business, the Dermablend Business will also include the net accounts receivable (other than the Designated Receivables (as defined in Section 4.11)), bank overdraft, accounts payable and accrued expenses related to the National Cosmetics Business and the Iman Business. Seller and its authorized representatives shall have reasonable access to all relevant books and records and employees of the Company following the Closing Date to the extent required to complete preparation of the Closing Statement, including, without limitation, preparation of any financial reports or schedules needed to complete the Closing Statement. Seller and Buyer shall split equally the cost of preparing and delivering the Closing Statement.
(b) After receipt of the Purchaser’s Closing Payment Calculation Statement, Buyer the Seller Representative shall have 15 thirty (30) days (the “Review Period”) to review itPurchaser’s Closing Payment Calculation Statement. Buyer and its authorized representatives During the Review Period, Purchaser shall (i) permit the Seller Representative to have reasonable access to Seller's accountants during normal business hours to the extent required books and records pertaining to complete their review of the Closing Statement, including, without limitation, the accountants' work papers or used in connection with the preparation thereofof Purchaser’s Closing Payment Calculation Statement and (ii) provide the Seller Representative reasonable access during normal business hours to Purchaser’s and the Company’s employees and accountants as reasonably requested by the Seller Representative; provided that such access will be in a manner that does not interfere with the normal business operations of Purchaser or the Company. Unless Buyer delivers written notice to Seller on On or prior to the 15th last day after receipt of the Review Period, the Seller Representative shall notify Purchaser in writing of any disagreement with Purchaser’s Closing Payment Calculation Statement specifying in reasonable detail its objections or with the accuracy of any of Purchaser’s Proposed Calculations. Any such notice of disagreement shall specify those items or amounts as to which the Seller Representative disagrees and shall include the Seller Representative’s proposed changes to the Closing Statement on calculation of the grounds that the Closing Statement (i) was not prepared in accordance with this Section 1.4 or (ii) contained arithmetic errorsCompany Cash, the parties Debt Amount, the Transaction Expenses, the Net Working Capital and Purchaser’s Closing Payment, as applicable (the “Sellers’ Proposed Calculations”). The Seller Representative shall be deemed to have accepted agreed with all other items and agreed to amounts included in Purchaser’s Closing Payment Calculation Statement that are not identified in the Closing StatementSellers’ Proposed Calculations. If Buyer so notifies the Seller Representative does not dispute any aspect thereof or the amount of such an objection to any of Purchaser’s Proposed Calculations during the Review Period, then Purchaser’s Closing Statement, Payment Calculation Statement and Purchaser’s Proposed Calculations shall be conclusive and binding upon the parties shall within 15 days following the date of such notice (the "RESOLUTION PERIOD") attempt to resolve their differencesParties.
(c) At In the conclusion event of a dispute with respect to the Sellers’ Proposed Calculations, Purchaser and the Seller Representative shall attempt to reconcile differences and any resolution by them as to any disputed amounts shall be final, binding and conclusive on the Parties. If Purchaser and the Seller Representative are unable to reach a resolution to such effect within thirty (30) days after Purchaser’s receipt of the Resolution PeriodSellers’ Proposed Calculations, any amounts remaining in dispute shall, at Purchaser and the election of either party, be submitted to Price Waterhouse Seller Representative shall engage BDO USA LLP (the "NEUTRAL AUDITOR"“Independent Accounting Firm”) to resolve the remaining disputed items (the “Remaining Disputed Items”). The Neutral Auditor Independent Accounting Firm shall be engaged directed to, within five thirty (30) days after such submission, determine and report to the Parties upon the Remaining Disputed Items with respect to Purchaser’s Closing Payment Calculation Statement, and such report shall be final, binding and conclusive on the Parties hereto and shall constitute an election arbitral award upon which a judgment may be entered in any court having jurisdiction thereof. The Independent Accounting Firm shall be authorized to resolve only the Remaining Disputed Items, and such resolution shall be based solely on the materials submitted by the Parties and not on independent review, and, in any event, shall be no less than the lesser of the amount claimed by either party to submit its objections to Purchaser or the Neutral AuditorSeller Representative, and each party agrees shall be no greater than the greater of the amount claimed by either Purchaser or the Seller Representative. The statement and amount selected by the Independent Accounting Firm are referred to herein as the “Final Purchase Price Calculation Statement” and the “Final Purchase Price,” respectively. Purchaser and the Seller Representative shall execute, if requested by the Neutral AuditorIndependent Accounting Firm, a an engagement letter containing reasonable engagement letterand customary terms. All fees The Independent Accounting Firm shall determine the allocation of its costs and expenses based upon the percentage by which the portion of the contested amount not awarded to Purchaser, on the one hand, or the Seller Representative, on the other hand, bears to the amount actually contested by or on behalf of such Parties. For example, if the Seller Representative claims the Final Purchase Price is $1,000 more than the amount determined by Purchaser, and Purchaser contests only $500 of the amount claimed by the Seller Representative, and if the Independent Accounting Firm ultimately resolves the dispute by awarding the Seller Representative $300 of the $500 contested, then the costs and expenses of arbitration will be allocated 60% (i.e., 300/500) to Purchaser and 40% (i.e., 200/500) to the Neutral Auditor shall be borne equally by Seller and Buyer. The Neutral Auditor shall act as an arbitrator to determineRepresentative.
(d) Upon the determination, based solely on the written presentations by Seller and Buyer made within 15 days of the Neutral Auditor's engagement or such other reasonable period of time to which the parties agree, and not by independent review, only those issues still in dispute. The Neutral Auditor's determination shall be made within 30 days after Seller's and Buyer's written presentations have been made, shall be set forth in a written statement delivered to Seller and Buyer and shall be final, binding, conclusive and nonappealable. The term "FINAL CLOSING STATEMENT" shall mean the definitive Closing Statement agreed to by Seller and Buyer in accordance with Section 1.4(b) or 2.4, of the definitive Closing Statement resulting from Final Purchase Price and the determination made by of the Neutral Auditor Final Net Working Capital, the Final Debt Amount and the Final Company Transaction Expenses pursuant to Section 2.4(c):
(i) If the Final Purchase Price is greater than the Estimated Closing Payment, then Purchaser shall, within five (5) Business Days of the date upon which the Final Purchase Price is determined, pay the amount of any such excess to the Seller Representative (for further distribution to the Sellers) in accordance with written instructions provided by the Seller Representative to Purchaser, and Purchaser and the Seller Representative shall provide joint written instructions to the Escrow Agent to pay the Adjustment Escrow Amount to the Seller Representative (for further distribution to the Sellers); and
(ii) If the Final Purchase Price is less than the Estimated Closing Payment, then the Seller Representative and Purchaser shall, within five (5) Business Days of the date upon which the Final Purchase Price is determined, provide joint written instructions to the Escrow Agent to pay the amount of any such deficiency to Purchaser; provided that, if such deficiency (stated as a positive number) is (a) greater than the Adjustment Escrow Amount, the Sellers shall pay Purchaser the amount of such excess, or (b) lesser than the Adjustment Escrow Amount, Purchaser and the Seller Representative shall provide joint written instructions to the Escrow Agent to pay the remaining portion of the Adjustment Escrow Amount to the Seller Representative (for further distribution to the Sellers).
(e) Notwithstanding anything to the contrary in this Agreement, and without prejudice to any other right or remedy Purchaser has or may have, Purchaser shall have the right, at its option in its sole discretion, to withhold and set-off against any amount to be made by Purchaser to the Seller Representative (for further distribution to the Sellers) pursuant to this Section 1.4(c2.4 the amount of any outstanding Damages to which any Indemnified Purchaser Party may then be entitled under Article IX of this Agreement (other than with respect to General Cap Claims for which this set-off right shall not apply) or any other Transaction Document.
(f) Any payment to be made pursuant to Section 2.4 shall be (i) treated by all parties for Tax purposes as an adjustment to the Purchase Price and (ii) subject to Section 2.4(e), paid in cash and made to the account designated in writing by Purchaser or the Seller Representative, as applicable. Any rights accruing to any Party under this Section 2.4 shall be in addition to those items theretofore agreed and independent of the rights to by Seller indemnification under Article IX and Buyer)any payments made to any Party under this Section 2.4 shall not be subject to the requirements of Article IX.
Appears in 1 contract
Samples: Membership Interest Purchase Agreement (Tabula Rasa HealthCare, Inc.)
Purchase Price Adjustment. (a) As soon as practicable but not later than 60 At least two business days following prior to the Closing Date, Seller the Company shall prepare and deliver to Buyer a working capital statement the Purchaser an estimate, reasonably satisfactory to the Purchaser, of the Company as of the close of business on the Closing Date Debt, Closing Date Unpaid Transaction Expenses and Aggregate Exercise Amount (the "CLOSING STATEMENT") setting “Preliminary Statement”). The Preliminary Statement shall satisfy the requirements set forth the current assets minus the current liabilities of the Company (the "WORKING CAPITAL") on the basis described in Annex B, accompanied by a report from Arthur Andersen LLP; PROVIDED, HOWEVER, if the transactions contemplaxxx xx Xxxxxxx 4.11(a) or Exhibit C.
(b) occur, the Closing Statement will be prepared as if the Com pany did not own the Dermablend Business or the National Cosmetics Business and the Iman Business as of Within 60 days after the Closing Date, as Purchaser shall prepare and deliver to the case may be; PROVIDED FURTHER that if Buyer retains Stockholders’ Representative a statement (the Dermablend Business and, pursuant to Section 4.11(b“Statement”), sells the National Cosmetics Business and the Iman Business, the Dermablend Business will also include the net accounts receivable (other than the Designated Receivables (as defined in Section 4.11)), bank overdraft, accounts payable and accrued expenses related to the National Cosmetics Business and the Iman Business. Seller and its authorized representatives shall have reasonable access to all relevant books and records and employees of the Company following setting forth the Closing Date to the extent required to complete preparation of the Debt, Closing Statement, including, without limitation, preparation of any financial reports or schedules needed to complete the Closing Statement. Seller Date Unpaid Transaction Expenses and Buyer shall split equally the cost of preparing and delivering the Closing StatementAggregate Exercise Amount.
(bc) After During the 30-day period following the Stockholders’ Representative’s receipt of the Closing Statement, Buyer the Stockholders’ Representative and its auditors shall have 15 days be permitted to review it. Buyer the working papers of Purchaser and its authorized representatives shall have reasonable access to Seller's accountants auditors relating to the extent required to complete their review of Statement. The Statement shall become final and binding upon the Closing Statementparties on the 30th day following delivery thereof, including, without limitation, unless the accountants' work papers used in preparation thereof. Unless Buyer delivers Stockholders’ Representative gives written notice of its disagreement with the Statement (a “Notice of Disagreement“) to Seller on or Purchaser prior to the 15th day after receipt such date. Any Notice of the Closing Statement specifying Disagreement shall (i) specify in reasonable detail its objections the nature of any disagreement so asserted and (ii) only include disagreements based on mathematical errors or an alleged failure to calculate the Closing Statement on the grounds that the Date Debt and Closing Statement (i) was not prepared Date Unpaid Transaction Expenses in accordance with this Section 1.4 or (ii) contained arithmetic errorsExhibit C. To the extent not objected in the Notice of Disagreement, the parties Stockholders’ Representative on behalf of the Holders shall be deemed to have accepted agreed with all other items and agreed to amounts contained in the Closing StatementStatement and other calculations therein. If Buyer so notifies Seller a Notice of such an objection to the Closing Statement, the parties shall within 15 days following the date of such notice (the "RESOLUTION PERIOD") attempt to resolve their differences.
(c) At the conclusion of the Resolution Period, any amounts remaining in dispute shall, at the election of either party, be submitted to Price Waterhouse (the "NEUTRAL AUDITOR"). The Neutral Auditor shall be engaged within five days after an election Disagreement is received by either party to submit its objections to the Neutral Auditor, and each party agrees to execute, if requested by the Neutral Auditor, a reasonable engagement letter. All fees and expenses of the Neutral Auditor shall be borne equally by Seller and Buyer. The Neutral Auditor shall act as an arbitrator to determine, based solely on the written presentations by Seller and Buyer made within 15 days of the Neutral Auditor's engagement or such other reasonable period of time to which the parties agree, and not by independent review, only those issues still in dispute. The Neutral Auditor's determination shall be made within 30 days after Seller's and Buyer's written presentations have been made, shall be set forth Purchaser in a written statement delivered to Seller and Buyer and shall be finaltimely manner, binding, conclusive and nonappealable. The term "FINAL CLOSING STATEMENT" shall mean then the definitive Closing Statement agreed to by Seller and Buyer in accordance with Section 1.4(b) or the definitive Closing Statement resulting from the determination made by the Neutral Auditor (as revised in accordance with this Section 1.4(csentence) shall become final and binding upon Stockholders and Purchaser on the earlier of (A) the date the Stockholders’ Representative and Purchaser resolve in addition writing any differences they have with respect to those items theretofore agreed the matters specified in the Notice of Disagreement or (B) the date any disputed matters are finally resolved in writing by the Accounting Firm (as defined below). During the 30-day period following the delivery of a Notice of Disagreement, the Stockholders’ Representative and Purchaser shall seek in good faith to by Seller resolve in writing any differences that they may have with respect to the matters specified in the Notice of Disagreement. During such period Purchaser and Buyer)its auditors shall have access to the working papers of the Stockholders’ Representative and its auditors. At the end of such 30-day period, the Stockholders’ Representative and Purchaser shall submit to the Accounting Firm for arbitration any and all matters that remain in dispute and which were properly included in the Notice of Disagreement.
Appears in 1 contract
Purchase Price Adjustment. (a) As soon as practicable reasonably practical after the Closing, but not later in no event more than 60 sixty (60) days following after the Closing Date, Seller the Purchaser shall prepare and deliver to Buyer a working capital statement consolidated balance sheet of the Company as of the close of business on the Closing Date (the "CLOSING STATEMENT"“Closing Date Balance Sheet”), together with (ii) a draft schedule (the “Draft Adjustment Report”) showing the Purchaser’s computation of the Net Asset Adjustment as of the Closing Date and the Purchaser’s proposed purchase price adjustment to be made in accordance with this Section 2.3. The Closing Date Balance Sheet shall be prepared in accordance with GAAP Consistency. The Purchaser shall deliver the Closing Date Balance Sheet and the Draft Adjustment Report to the Seller within such ninety (90) day period after the Closing Date.
(b) During the thirty (30) day-period after the Seller’s receipt of the Closing Date Balance Sheet and the Draft Adjustment Report, the Seller and the Purchaser shall cooperate with each other to resolve any disagreements between them with respect to the Draft Adjustment Report. In the event the Seller and the Purchaser agree on the Draft Adjustment Report and the proposed Net Asset Adjustment set forth therein (such agreement to be indicated in writing by the Seller and the Purchaser by signing such Draft Adjustment Report), then the Draft Adjustment Report shall be deemed to be the final Adjustment Report (the “Adjustment Report”), and the Net Asset Adjustment set forth therein shall be conclusive and binding upon the Purchaser and the Seller and shall have the effect of adjusting the Cash Consideration as set forth therein.
(c) In the event the Seller and the Purchaser shall not reach agreement on all aspects of the Draft Adjustment Report, including with respect to the Net Asset Adjustment set forth therein, within such thirty (30) day period after the Seller’s receipt of the Closing Date Balance Sheet and the Draft Adjustment Report, the Seller shall promptly (but in no event later than five (5) days following the expiration of such thirty (30) day period) prepare a written notice of its objections (the “Objection Notice”): (i) objecting in good faith to the Closing Date Balance Sheet or the Net Asset Adjustment set forth in the Draft Adjustment Report, (ii) setting forth the current assets minus items being disputed and the current liabilities reasons therefor, and (iii) specifying the Seller’s calculation of the Company (the "WORKING CAPITAL") on the basis described in Annex B, accompanied by a report from Arthur Andersen LLP; PROVIDED, HOWEVER, if the transactions contemplaxxx xx Xxxxxxx 4.11(a) or (b) occur, the Closing Statement will be prepared as if the Com pany did not own the Dermablend Business or the National Cosmetics Business and the Iman Business Net Asset Adjustment as of the Closing DateDate and the adjustment to be made in accordance with this Section 2.3. In connection with the preparation of the Objection Notice, the Purchaser shall grant the Seller’s accountants and other representatives reasonable access to all of the books and records of the Company. If the Seller fails to deliver timely notice of its objection to the Closing Date Balance Sheet or the Net Asset Adjustment as set forth in the Draft Adjustment Report, then the Draft Adjustment Report shall be deemed to be the Adjustment Report, and the Net Asset Adjustment set forth therein shall be conclusive and binding upon the Purchaser and the Seller and shall have the effect of adjusting the Cash Consideration as set forth therein.
(d) The matters in dispute shall be determined by a nationally recognized independent public accounting firm mutually satisfactory to the Purchaser and the Seller (the “Arbiter”), and the Purchaser and the Seller shall promptly deliver to the Arbiter the Closing Date Balance Sheet, the Draft Adjustment Report and Seller’s Objection Notice. Promptly, but not later than thirty (30) days after the acceptance of its appointment, the Arbiter shall determine (based solely on presentations by the Seller and the Purchaser to the Arbiter and not by independent review) only those items in dispute and shall render a report as to its resolution of such items and the resulting calculation of the Net Asset Adjustment. For purposes of the Arbiter’s determination, the amounts to be included shall be the appropriate amounts from the Closing Date Balance Sheet or the Draft Adjustment Report, as the case may be; PROVIDED FURTHER , as to items that if Buyer retains the Dermablend Business andare not in dispute, pursuant to Section 4.11(b), sells the National Cosmetics Business and the Iman Businessamounts determined by the Arbiter, as to items that are submitted for resolution by the Arbiter. In resolving any disputed item, the Dermablend Business will also include the net accounts receivable (other Arbiter may not assign a value to such item greater than the Designated Receivables (as defined greatest value for such item claimed by either party in Section 4.11)), bank overdraft, accounts payable and accrued expenses related to the National Cosmetics Business and the Iman Business. Seller and its authorized representatives shall have reasonable access to all relevant books and records and employees of the Company following the Closing Date to Balance Sheet, Draft Adjustment Report or Objection Notice or less than the extent required to complete preparation of lowest value for such item claimed by either party in the Closing StatementDate Balance Sheet, including, without limitation, preparation of any financial reports Draft Adjustment Report or schedules needed to complete Objection Notice. The Purchaser and the Closing Statement. Seller shall cooperate with the Arbiter in making its determination and Buyer such determination shall split equally be conclusive and binding upon the cost of preparing Purchaser and delivering the Closing StatementSeller.
(be) After receipt The Purchaser and the Seller shall each bear one-half of the Closing Statement, Buyer shall have 15 days to review it. Buyer fees and its authorized representatives shall have reasonable access to Seller's accountants to the extent required to complete their review expenses of the Closing Statement, including, without limitation, Arbiter.
(f) Within five Business Days after the accountants' work papers used in preparation thereof. Unless Buyer delivers written notice to Seller on or prior to the 15th day after receipt final determination of the Closing Statement specifying in reasonable detail its objections to the Closing Statement on the grounds that the Closing Statement (i) was not prepared Net Asset Adjustment in accordance with this Section 1.4 2.3: either (x) the Purchaser shall pay the Seller by wire transfer of immediately available funds the amount, if any, by which the Final Net Asset Adjustment is greater than zero; or (iiy) contained arithmetic errors, the parties Seller shall be deemed to have accepted and agreed direct to the Closing Statement. If Buyer so notifies Seller Escrow Holder to pay the Purchaser from the Escrow Account by wire transfer of such an objection to immediately available funds the Closing Statementamount, if any, by which the parties shall within 15 days following the date of such notice (the "RESOLUTION PERIOD") attempt to resolve their differencesFinal Net Asset Adjustment is less than zero.
(cg) At the conclusion of the Resolution Period, any amounts remaining Nothing in dispute shall, at the election of either party, be submitted to Price Waterhouse (the "NEUTRAL AUDITOR"). The Neutral Auditor shall be engaged within five days after an election by either party to submit its objections to the Neutral Auditor, and each party agrees to execute, if requested by the Neutral Auditor, a reasonable engagement letter. All fees and expenses of the Neutral Auditor shall be borne equally by Seller and Buyer. The Neutral Auditor shall act as an arbitrator to determine, based solely on the written presentations by Seller and Buyer made within 15 days of the Neutral Auditor's engagement or such other reasonable period of time to which the parties agree, and not by independent review, only those issues still in dispute. The Neutral Auditor's determination shall be made within 30 days after Seller's and Buyer's written presentations have been made, shall be set forth in a written statement delivered to Seller and Buyer and shall be final, binding, conclusive and nonappealable. The term "FINAL CLOSING STATEMENT" shall mean the definitive Closing Statement agreed to by Seller and Buyer in accordance with Section 1.4(b) or the definitive Closing Statement resulting from the determination made by the Neutral Auditor in accordance with this Section 1.4(c) (2.3 or in addition to those items theretofore agreed to by Seller the statements, reports or documents contemplated hereby shall affect the parties’ rights and Buyer)obligations in respect of a breach or alleged breach of any representation or warranty herein.
Appears in 1 contract
Samples: Stock Purchase Agreement (International Microcomputer Software Inc /Ca/)
Purchase Price Adjustment. (ai) As soon as practicable but not later than 60 Within ninety (90) days following after the Closing Date, Seller Purchaser shall prepare and deliver to Buyer Sellers a working capital closing statement (the “Closing Statement”), in a form substantially similar to the Estimated Closing Statement, setting forth in reasonable detail Purchaser’s good faith calculation and determination of the (A) the Closing Financial Debt, (B) the Closing Cash, (C) the Closing Net Working Capital Adjustment, (D) the Transaction Expenses, and (E) the Purchase Price calculated therefrom (the “Reviewed Items”). The Closing Statement shall be prepared in accordance with the Accounting Policies. If Sellers disagree with the calculation and determination of any of the Reviewed Items set forth in the Closing Statement, Sellers may, within thirty (30) days after the Sellers’ receipt of the Closing Statement, provide written notice to Purchaser setting forth Sellers’ disagreement therewith and Sellers’ calculation of the Reviewed Items that Sellers propose to adjust (such notice, a “Seller Notice of Disagreement”), which shall be prepared reasonably and in good faith by Sellers. During the thirty (30) day period following Sellers’ receipt of the Closing Statement, Sellers and their accountants shall, at Sellers’ expense, be permitted reasonable access to review the work papers, books, records and applicable personnel of the Company used in the preparation of the Closing Statement, during normal business hours at the Company’s offices, upon reasonable prior notice and solely for purposes of reviewing the Closing Statement and the Reviewed Items. Purchaser agrees that, following the Closing Date through the date that the Closing Statement becomes final and binding, it will not take or permit to be taken, any actions with respect to any accounting books, records, policies or procedures on which the Abbreviated Financials or the Closing Statement is based, that are inconsistent with the Accounting Policies or that would or would reasonably be expected to materially impede or delay the determination of the amount of the Closing Financial Debt, the Closing Cash, the Closing Net Working Capital Adjustment, the Transaction Expenses, and the Purchase Price calculated therefrom or the preparation of any Seller Notice of Disagreement or the Closing Statement in the manner and utilizing the methods provided by this Agreement. Any Seller Notice of Disagreement shall specify in reasonable detail those Reviewed Items as to which Sellers disagree, the nature and extent of such disagreement and Sellers’ resulting calculation of the Purchase Price. Sellers shall be deemed to have agreed with all other Reviewed Items contained in the Closing Statement but not reflected in the Seller Notice of Disagreement. If Seller does not deliver a Seller Notice of Disagreement within such thirty (30) day period, Sellers shall be deemed to have accepted the Closing Statement with respect to all Reviewed Items set forth therein, and the determination of the Purchase Price set forth in the Closing Statement shall be final and binding upon the Parties.
(ii) If Sellers timely deliver a Seller Notice of Disagreement, Purchaser and Sellers shall have a period of thirty (30) days from Purchaser’s receipt thereof to resolve any disagreement specified therein. Any disputed amount resolved in writing by Purchaser and Sellers during such period or at any time thereafter will become final and binding upon the Parties as of the close date of business such agreement. Any disputed amounts that cannot be agreed to by Sellers and Purchaser within thirty (30) days after Purchaser’s receipt of a Seller Notice of Disagreement shall be determined by the Accounting Firm. Sellers and Purchaser shall cooperate and each use commercially reasonable efforts to cause the written determination of any disputed Reviewed Item and the resulting Purchase Price by the Accounting Firm to be completed within sixty (60) days after the engagement of the Accounting Firm and such determination shall be final and binding on the Closing Date (Parties. The Accounting Firm shall resolve the "CLOSING STATEMENT") setting forth the current assets minus the current liabilities of the Company (the "WORKING CAPITAL") disputed Reviewed Items based solely on the basis described applicable definitions and other terms in Annex Bthis Agreement and the presentations by Purchaser and Sellers, accompanied and not by independent review. In resolving any disputed Reviewed Item, the Accounting Firm, acting in the capacity of an expert and not as an arbitrator, shall (i) limit its review to matters specifically set forth in the Seller Notice of Disagreement delivered pursuant to Section 1.5(d)(ii) as a report from Arthur Andersen LLP; PROVIDEDdisputed Reviewed Item (other than matters thereafter resolved by mutual written agreement of Purchaser and Sellers), HOWEVER(ii) further limit its review to whether the calculation of any such disputed Reviewed Item is mathematically accurate and has been prepared using the rules, if definitions and accounting principles set forth in this Agreement, and (iii) not assign a value to any item greater than the transactions contemplaxxx xx Xxxxxxx 4.11(a) greatest value for such item or (b) occurless than the smallest value for such item, in each case, claimed by Purchaser in the Closing Statement or Sellers in the Seller Notice of Disagreement, as applicable. The Parties agrees they will use their commercially reasonable efforts to cause their respective independent accountants to, cooperate and assist in the preparation of the conduct of the reviews related to the Accounting Firm’s determination of disputed amounts under this Section 1.5(d)(ii), including by making available, to the extent necessary, books, records, work papers and personnel (subject to the execution of customary working papers access letters, if requested). The fees and expenses payable to the Accounting Firm in connection with resolving any dispute under this Section 1.5(d)(ii) shall be prepared borne by Sellers, on the one hand, and by Purchaser, on the other hand, in proportion to the amounts by which their respective calculations of Purchase Price differ from the Purchase Price as if finally determined by the Com pany did not own Accounting Firm. Purchaser and Sellers agree that the Dermablend Business or procedures set forth in this Section 1.5(d)(ii) for resolving disputes with respect to the National Cosmetics Business Closing Statement and the Iman Business as Purchase Price shall be the sole and exclusive method for resolving any such disputes; provided that this provision shall not prohibit the Parties from instituting litigation to enforce any final determination of the Closing DatePurchase Price by the Accounting Firm pursuant to this Section 1.5(d)(ii) in any court of competent jurisdiction in accordance with Section 10.6. It is the intent of the Parties to have any final determination of the Purchase Price by the Accounting Firm proceed in an expeditious manner; provided, however, that any deadline or time period contained herein may be extended or modified by the written agreement of Sellers and Purchaser, and Sellers and Purchaser agree that the failure of the Accounting Firm to strictly conform to any deadline or time period contained herein shall not be a basis for seeking to overturn any determination rendered by the Accounting Firm which otherwise conforms to the terms of this Section 1.5(d)(ii).
(iii) Following the final determination of the Purchase Price pursuant to Section 1.5(d)(i) or Section 1.5(d)(ii), as the case may be:
(A) if the Purchase Price as finally determined is greater than the Estimated Purchase Price, Purchaser shall pay, or cause to be paid, to Direct Seller the amount (the “Excess Amount”) equal to the excess of (1) the Purchase Price as finally determined over (2) the Estimated Purchase Price; PROVIDED FURTHER that or
(B) if Buyer retains the Dermablend Purchase Price as finally determined is lower than the Estimated Purchase Price, Direct Seller shall pay, or cause to be paid, to Purchaser, the amount equal to the excess of (1) the Estimated Purchase Price over (2) the Purchase Price as finally determined.
(iv) The payments referred to in Section 1.5(d)(iii) shall be made within five (5) Business and, Days of the final determination of the Purchase Price pursuant to Section 4.11(b1.5(d)(i) or Section 1.5(d)(ii), sells as the National Cosmetics Business and the Iman Business, the Dermablend Business will also include the net accounts receivable (other than the Designated Receivables (as defined case may be. The payment referred to in Section 4.11)), bank overdraft, accounts payable and accrued expenses related 1.5(d)(iii)(A) shall be made in cash by wire transfer of immediately available funds to the National Cosmetics Business and account designated by Direct Seller in the Iman Business. Seller and its authorized representatives shall have reasonable access to all relevant books and records and employees of the Company following the Closing Date to the extent required to complete preparation of the Closing Statement, including, without limitation, preparation of any financial reports or schedules needed to complete the Estimated Closing Statement. Seller and Buyer The payment referred to in Section 1.5(d)(iii)(B) shall split equally be made in cash by wire transfer of immediately available funds to the cost of preparing and delivering account designated by Purchaser in the Estimated Closing Statement.
(bv) After receipt of the Closing Statement, Buyer Any payments made pursuant to Section 1.5(d)(iii) and Section 1.5(d)(iv) shall have 15 days to review it. Buyer and its authorized representatives shall have reasonable access to Seller's accountants be treated as an adjustment to the extent required to complete their review of the Closing Statement, including, without limitation, the accountants' work papers used in preparation thereof. Unless Buyer delivers written notice to Seller on or prior to the 15th day after receipt of the Closing Statement specifying in reasonable detail its objections to the Closing Statement on the grounds that the Closing Statement (i) was not prepared in accordance with this Section 1.4 or (ii) contained arithmetic errors, the parties shall be deemed to have accepted and agreed to the Closing Statement. If Buyer so notifies Seller of such an objection to the Closing Statement, the parties shall within 15 days following the date of such notice (the "RESOLUTION PERIOD") attempt to resolve their differences.
(c) At the conclusion of the Resolution Period, any amounts remaining in dispute shall, at the election of either party, be submitted to Purchase Price Waterhouse (the "NEUTRAL AUDITOR"). The Neutral Auditor shall be engaged within five days after an election by either party to submit its objections to the Neutral Auditor, and each party agrees to execute, if requested by the Neutral AuditorParties for Tax purposes, a reasonable engagement letter. All fees and expenses of the Neutral Auditor shall be borne equally unless otherwise required by Seller and Buyer. The Neutral Auditor shall act as an arbitrator to determine, based solely on the written presentations by Seller and Buyer made within 15 days of the Neutral Auditor's engagement or such other reasonable period of time to which the parties agree, and not by independent review, only those issues still in dispute. The Neutral Auditor's determination shall be made within 30 days after Seller's and Buyer's written presentations have been made, shall be set forth in a written statement delivered to Seller and Buyer and shall be final, binding, conclusive and nonappealable. The term "FINAL CLOSING STATEMENT" shall mean the definitive Closing Statement agreed to by Seller and Buyer in accordance with Section 1.4(b) or the definitive Closing Statement resulting from the determination made by the Neutral Auditor in accordance with this Section 1.4(c) (in addition to those items theretofore agreed to by Seller and Buyer)Law.
Appears in 1 contract
Samples: Membership Interest and Asset Purchase Agreement (Smith Micro Software, Inc.)
Purchase Price Adjustment. (a) As soon as practicable but not later No less than 60 days following two Business Days prior to the Closing Date, Seller shall prepare and deliver a notice to Buyer a working capital statement Purchaser which sets forth Seller's good faith estimate of the Company Working Capital as of the close of business on the day immediately preceding the Closing Date (the "CLOSING STATEMENTEstimated Closing Working Capital") setting forth the current assets minus the current liabilities of the Company (the "WORKING CAPITAL") on the basis described in Annex B, ). Such notice shall be accompanied by a report from Arthur Andersen LLP; PROVIDED, HOWEVER, if appropriate information supporting the transactions contemplaxxx xx Xxxxxxx 4.11(a) or (b) occur, the Estimated Closing Statement will be prepared as if the Com pany did not own the Dermablend Business or the National Cosmetics Business and the Iman Business as of Working Capital. Within 60 days after the Closing Date, Purchaser shall prepare and deliver to Seller a statement setting forth Working Capital as of the case close of business on the day immediately preceding the Closing Date (the "Initial WC Statement"). During the 30 days immediately following Seller's receipt of the Initial WC Statement, Seller will be permitted to review Purchaser's and its auditors' working papers, if any, relating to the Initial WC Statement, all of Purchaser's books and records with respect thereto and such other books and records of Purchaser as Seller may be; PROVIDED FURTHER that if Buyer retains reasonably request in connection with such review and shall be provided with reasonable access to individuals involved in preparing or reviewing the Dermablend Business andInitial WC Statement. The Initial WC Statement shall become final and binding upon the parties (and shall thereupon become the Final WC Statement) on the 31st day following receipt thereof by Seller, pursuant unless Seller shall provide a written notice (the "Notice of Disagreement") of its disagreement with the Initial WC Statement to Section 4.11(b)Purchaser prior to such date. Any Notice of Disagreement shall specify in reasonable detail the nature of any disagreement so asserted. If a timely Notice of Disagreement is received by Purchaser, sells then the National Cosmetics Business and the Iman Business, the Dermablend Business will also include the net accounts receivable (other than the Designated Receivables Initial WC Statement (as defined revised in Section 4.11))accordance with clause (x) or (y) below) shall become final and binding upon the parties, bank overdraftand shall thereupon become the "Final WC Statement", accounts payable on the earlier of (x) the date on which the parties hereto resolve in writing any differences they have with respect to any matter specified in the Notice of Disagreement, and accrued expenses related agree upon a Final WC Statement, or (y) the date on which the Accounting Firm finally resolves in writing any matters with respect to the National Cosmetics Business Initial WC Statement that are properly in dispute by providing each of the parties hereto with a Final WC Statement. During the 30 days immediately following the delivery of a Notice of Disagreement, Seller and Purchaser shall seek in good faith to resolve in writing (and thereby agree on a Final WC Statement) any differences which they may have with respect to any matter specified in the Iman BusinessNotice of Disagreement. During such period, Purchaser shall have access to the working papers of Seller and its authorized representatives auditors, if any, prepared in connection with Seller's preparation of the Notice of Disagreement and Purchaser shall have be provided with reasonable access to individuals involved in preparing or reviewing the Notice of Disagreement. At the end of such 30-day period, Seller and Purchaser shall submit to the Accounting Firm for review and resolution any and all relevant books matters which remain in dispute and records which were properly included in the Notice of Disagreement (the Initial WC Statement, as it may be modified by Purchaser prior to submission to the Accounting Firm, being the "Submitted WC Statement", and employees the Notice of Disagreement, as it may be modified by Seller prior to submission to the Accounting Firm, being the "Submitted Notice of Disagreement"), and, within 30 days of its receipt of the Company following Submitted WC Statement and the Submitted Notice of Disagreement, the Accounting Firm shall make a final determination, binding on the parties hereto, of Working Capital as of the close of business on the day immediately preceding the Closing Date. The Accounting Firm's determination as to any given matter in dispute shall be within the range for such matter set forth in the Submitted WC Statement, on the one hand, and the Submitted Notice of Disagreement, on the other hand. Purchaser and Seller shall share equally the cost of the Accounting Firm's review and determination.
(i) If Closing Working Capital exceeds Estimated Closing Working Capital, then Purchaser shall pay to Seller an amount equal to such excess or (ii) if Estimated Closing Working Capital exceeds Closing Working Capital, then Seller shall pay to Purchaser an amount equal to such excess, in either case within three Business Days after the Final WC Statement becomes final and binding on the parties hereto, together with interest thereon from the Closing Date to the extent required date of payment at the rate of interest publicly announced by Citibank, N.A. in New York, New York from time to complete preparation of the time as its base rate. If Closing StatementWorking Capital is equal to Estimated Closing Working Capital, including, without limitation, preparation of then neither Purchaser nor Seller shall owe any financial reports or schedules needed to complete the Closing Statement. Seller and Buyer shall split equally the cost of preparing and delivering the Closing Statement.
(b) After receipt of the Closing Statement, Buyer shall have 15 days to review it. Buyer and its authorized representatives shall have reasonable access to Seller's accountants amount to the extent required other party pursuant to complete their review of the Closing Statement, including, without limitation, the accountants' work papers used in preparation thereof. Unless Buyer delivers written notice to Seller on or prior to the 15th day after receipt of the Closing Statement specifying in reasonable detail its objections to the Closing Statement on the grounds that the Closing Statement (i) was not prepared in accordance with this Section 1.4 or (ii) contained arithmetic errors, the parties shall be deemed to have accepted and agreed to the Closing Statement. If Buyer so notifies Seller of such an objection to the Closing Statement, the parties shall within 15 days following the date of such notice (the "RESOLUTION PERIOD") attempt to resolve their differences2.08.
(c) At Purchaser agrees that following the conclusion of Closing through the Resolution Period, any amounts remaining in dispute shall, at the election of either party, be submitted to Price Waterhouse (the "NEUTRAL AUDITOR"). The Neutral Auditor shall be engaged within five days after an election by either party to submit its objections to the Neutral Auditor, and each party agrees to executedate that payment, if requested by the Neutral Auditorany, a reasonable engagement letter. All fees and expenses of the Neutral Auditor shall be borne equally by Seller and Buyer. The Neutral Auditor shall act as an arbitrator is made pursuant to determineSection 2.08(b), based solely it will not take any actions with respect to any accounting books, records, policy or procedure on the written presentations by Seller and Buyer made within 15 days of the Neutral Auditor's engagement or such other reasonable period of time to which the parties agree, Initial WC Statement is to be based that would make it impossible or impracticable to calculate Working Capital in the manner and not by independent review, only those issues still in dispute. The Neutral Auditor's determination shall be made within 30 days after Seller's and Buyer's written presentations have been made, shall be set forth in a written statement delivered to Seller and Buyer and shall be final, binding, conclusive and nonappealable. The term "FINAL CLOSING STATEMENT" shall mean utilizing the definitive Closing Statement agreed to by Seller and Buyer in accordance with Section 1.4(b) or the definitive Closing Statement resulting from the determination made by the Neutral Auditor in accordance with this Section 1.4(c) (in addition to those items theretofore agreed to by Seller and Buyer)methods required hereby.
Appears in 1 contract
Purchase Price Adjustment. The Purchase Price set forth in Section 1.2 shall be subject to adjustment as follows:
(a) As soon as practicable but not later than 60 At least three Business Days before the Closing, U.S. Seller will deliver to Buyer a statement calculating its good faith estimates of Closing Working Capital, Closing Cash, Closing Indebtedness, Seller Transaction Expenses and the Canada Adjustment. Any difference between the estimated Closing Working Capital and the Target Working Capital Amount will result in an adjustment of the Purchase Price in accordance with the definition of “Purchase Price.”
(b) Within 90 days following after the Closing Date, Seller Buyer shall prepare and deliver to Buyer a working capital statement of the Company as of the close of business on the Closing Date (the "CLOSING STATEMENT") setting forth the current assets minus the current liabilities of the Company (the "WORKING CAPITAL") on the basis described in Annex B, accompanied by a report from Arthur Andersen LLP; PROVIDED, HOWEVER, if the transactions contemplaxxx xx Xxxxxxx 4.11(a) or (b) occur, the Closing Statement will to U.S. Seller. The Closing Statement shall be prepared as if in accordance with GAAP on a basis consistent with the Com pany did not own past practice of the Dermablend Business or the National Cosmetics Business Sellers and the Iman Business as of the Closing Date, as the case may be; PROVIDED FURTHER that if Buyer retains the Dermablend Business and, pursuant to Section 4.11(b), sells the National Cosmetics Business and the Iman Business, the Dermablend Business will also include the net accounts receivable Companies (other than the Designated Receivables (as defined in Section 4.11)), bank overdraft, accounts payable and accrued expenses related to the National Cosmetics Business and the Iman Business. Seller and its authorized representatives shall have reasonable access to all relevant books and records and employees of the Company following the Closing Date to the extent required such past practice is permitted under GAAP), and, notwithstanding the foregoing, in accordance with the definitions relating to complete preparation Purchase Price contained in this Agreement and the accounting principles, practices, procedures, policies and methods set forth on Schedule 1.4 (collectively, the “Accounting Principles”). At the request of U.S. Seller, Buyer shall deliver to U.S. Seller or its advisors the work papers used by Buyer to prepare the Closing Statement, including, without limitation, preparation of any financial reports or schedules needed to complete the Closing Statement. as long as U.S. Seller and Buyer shall split equally the cost of preparing and delivering the Closing Statementits advisors have executed customary release letters reasonably requested by Buyer’s advisors, including its independent auditors, in connection therewith.
(bc) After receipt of the Closing StatementU.S. Seller shall deliver to Buyer, Buyer shall have 15 within 60 days to review it. Buyer and its authorized representatives shall have reasonable access to Seller's accountants to the extent required to complete their review of the Closing Statement, including, without limitation, the accountants' work papers used in preparation thereof. Unless Buyer delivers written notice to Seller on or prior to the 15th day after receipt Buyer’s delivery of the Closing Statement specifying in reasonable detail its objections to U.S. Seller, either a notice indicating that the Sellers accept the Closing Statement on or a statement describing the grounds that the Closing Statement (i) was not prepared in accordance with this Section 1.4 or (ii) contained arithmetic errors, the parties shall be deemed to have accepted and agreed to the Closing Statement. If Buyer so notifies Seller of such an objection Sellers’ objections to the Closing Statement, which statement of objections shall describe in reasonable detail the parties nature and amount of the Sellers’ objections. If the Sellers do not object to the Closing Statement delivered by Buyer within the 60-day period, the Closing Statement shall within 15 days following be final and binding on the date of such notice (the "RESOLUTION PERIOD") attempt to resolve their differencesParties.
(cd) At If the conclusion Sellers object to the Closing Statement within the 60-day period and any such objections are not resolved by U.S. Seller and Buyer within 60 days after U.S. Seller’s delivery to Buyer of the Resolution PeriodSellers’ objection statement pursuant to Section 1.4(c), any amounts remaining in dispute shall, at Buyer and U.S. Seller shall (1) jointly prepare and sign a statement setting forth (A) those objections (if any) that Buyer and U.S. Seller have resolved and the election resolution of either party, be submitted such objections and (B) those objections that remain unresolved and (2) engage the Neutral Accountant to Price Waterhouse (the "NEUTRAL AUDITOR")resolve such unresolved objections. The Neutral Auditor Buyer shall be engaged within five days after an election by either party to submit its objections deliver promptly to the Neutral AuditorAccountant the work papers used by Buyer to prepare the Closing Statement and to determine the basis of any unresolved objection by Buyer described in the preceding sentence, and U.S. Seller shall deliver promptly to the Neutral Accountant the work papers used by Seller to prepare the objection statement described in Section 1.4(c) and to determine the basis of any unresolved objection by U.S. Seller described in the preceding sentence. Each of Buyer and U.S. Seller shall provide to the Neutral Accountant any information of such Party that the Neutral Accountant reasonably requests for purposes of resolving such unresolved objections. Buyer and U.S. Seller shall instruct the Neutral Accountant that (x) the scope of its review and authority shall be limited to resolving such unresolved objections, (y) it may not assign a value to any item greater than the greatest value claimed for such unresolved objection or less than the smallest value for such unresolved objection claimed by either Buyer or U.S. Seller and (z) the Neutral Accountant shall issue, within 60 days of delivery of the last delivery of workpapers according to the second sentence of this Section 1.4(d), a ruling that sets forth the resolution of each party agrees to executesuch unresolved objection, if requested the Closing Statement and the components of Purchase Price contained therein, reflecting the Neutral Accountant’s resolution of such unresolved objections. The resolution by the Neutral AuditorAccountant of such unresolved objections, the Closing Statement and the components of Purchase Price contained in the Closing Statement prepared by the Neutral Accountant giving effect to its resolution shall be final, conclusive and binding upon the Parties and not subject to review by any Governmental Entity or otherwise. The procedures set forth in this Section 1.4(d) for resolving disputes with respect to the Closing Statement shall be the sole and exclusive method for resolving any such disputes; provided that this provision shall not prohibit any Party from instituting litigation to enforce the determination of the Closing Statement and the Adjusted Purchase Price by the Neutral Accountant in a reasonable engagement lettercourt of competent jurisdiction in accordance with Section 12.12. All Buyer and the Sellers shall share equally the fees and expenses of the Neutral Auditor Accountant for its services under this Section 1.4(d).
(e) If the Purchase Price calculated using the amounts shown on the Final Closing Statement is less than the Estimated Purchase Price paid at the Closing pursuant to Section 1.2, then (1) the Purchase Price shall be borne equally reduced by Seller and Buyer. The Neutral Auditor shall act as an arbitrator amount equal to determine, based solely the difference of (A) the Estimated Purchase Price paid at the Closing pursuant to Section 1.2 minus (B) the Purchase Price calculated using the amounts shown on the written presentations Final Closing Statement and (2) the Sellers shall pay to Buyer, by Seller and Buyer made wire transfer of immediately available funds, within 15 days of three Business Days after the Neutral Auditor's engagement or such other reasonable period of time to date on which the parties agreeFinal Closing Statement is finally determined pursuant to this Section 1.4, and not by independent reviewan amount equal to such reduction in the Purchase Price. If the Purchase Price calculated using the amounts shown on the Final Closing Statement is greater than the Estimated Purchase Price paid at the Closing pursuant to Section 1.2, only those issues still in dispute. The Neutral Auditor's determination then (i) the Purchase Price shall be made within 30 days after Seller's and Buyer's written presentations have been made, shall be set forth in a written statement delivered increased by an amount equal to Seller and Buyer and shall be final, binding, conclusive and nonappealable. The term "FINAL CLOSING STATEMENT" shall mean the definitive difference of (A) the Purchase Price calculated using the amounts shown on the Final Closing Statement agreed minus (B) the Estimated Purchase Price paid at the Closing pursuant to Section 1.2 and (ii) Buyer shall pay to the Sellers designated by Seller and Buyer in accordance with Section 1.4(b) or U.S. Seller, by wire transfer of immediately available funds, within three Business Days after the definitive date on which the Final Closing Statement resulting from is finally determined pursuant to this Section 1.4, an amount equal to such increase in the determination made by the Neutral Auditor Purchase Price. Payment in accordance with this Section 1.4(c1.4(e) (in addition shall be the sole and exclusive remedy of the Parties for disputes regarding the Estimated Purchase Price and the Adjusted Purchase Price, and Article VI shall not apply to those items theretofore agreed to by Seller and Buyer)any such dispute.
Appears in 1 contract
Purchase Price Adjustment.
(a) As soon promptly as practicable possible, but not later than 60 in any event within ninety (90) days following after the Closing Date, Seller Parent shall prepare and deliver to Buyer the Securityholders’ Representative a working capital statement (the “Preliminary Statement”) showing the calculation of (i) the Closing Cash and Closing Net Working Capital and (ii) the Closing Consideration substituting the Closing Cash and Closing Net Working Capital as set forth in the Preliminary Statement for the Estimated Closing Cash and Estimated Closing Net Working Capital as set forth in the Closing Date Statement, respectively (the “Final Closing Consideration”). Each of Parent and the Securityholders’ Representative shall provide the other party and its Representatives with reasonable access to the books and records of the Company as and relevant personnel and properties during the preparation of the close Preliminary Statement and the resolution of business any disputes that may arise under this Section 2.8.
(b) If the Securityholders’ Representative has any objections to the Preliminary Statement, the Securityholders’ Representative shall deliver to Parent a statement setting forth its objections thereto in reasonable detail and with reasonable supporting documentation (an “Objections Statement”). If an Objections Statement is not delivered to Parent within thirty (30) days after delivery of the Preliminary Statement, the Preliminary Statement shall be final, binding and non-appealable by the parties hereto. Any item or amount as to which no dispute is raised in the Objections Statement shall be final, binding and non-appealable on the parties hereto, unless such item or amount is by its nature adjusted in connection with the matters raised in the Objections Statement. The Securityholders’ Representative and Parent shall negotiate in good faith to resolve any objections set forth in an Objections Statement, and any resolution agreed to in writing by the Securityholders’ Representative and Parent shall be final and binding upon the parties. If the Securityholders’ Representative and Parent are unable to reach a resolution of all such objections within fifteen (15) days after the delivery of the Objections Statement, the Securityholders’ Representative and Parent shall submit such dispute to a jointly selected arbiter from a nationally recognized independent public accounting firm (the “Auditor”), who shall be appointed as an expert and not as an arbitrator. If the Securityholders’ Representative and Parent are unable to agree upon an Auditor, each party shall select a nationally recognized independent public accounting firm and such chosen firms shall mutually agree upon a nationally recognized independent public accounting firm that shall serve as the Auditor; provided, that such firm shall not be the independent auditor of (or otherwise serve as a Consultant to) Parent, the Company, or any of their respective Affiliates. Each of the Securityholders’ Representative and Parent shall furnish to the Auditor a statement setting forth its position with respect to each item or amount set forth in the Objections Statement that remains unresolved following such fifteen (15)-day period (each, a “Disputed Line Item”), together with such other information and documents as it deems relevant (each such party’s “Dispute Resolution Submission”), with copies of such submission and all such documents and information being concurrently given to the other party. The Auditor shall consider only the Disputed Line Items identified in the Dispute Resolution Submission. The Auditor’s determination shall be based solely on (i) the definitions of Closing Cash and Closing Net Working Capital contained herein and (ii) the Dispute Resolution Submissions provided by the Purchaser and the Representative which are in accordance with the terms and procedures set forth in this Agreement (i.e., not on the basis of an independent review). The Securityholders’ Representative and Parent shall use their commercially reasonable efforts to cause the Auditor to resolve all disagreements as soon as practicable. The Auditor shall select as a resolution of all such disagreements, in the aggregate, either the positions of Parent or the positions of the Securityholders’ Representative as set forth in their respective Dispute Resolution Submissions based upon which party’s positions are closest to the determinations of the Auditor. The resolution of all Disputed Line Items by the Auditor shall be final, binding and non-appealable on the parties hereto. The costs and expenses of the Auditor shall be borne by the party whose Dispute Resolution Submission was not selected by the Auditor for the resolution of all Disputed Line Items.
(c) If the Closing Consideration as set forth in the Closing Date Statement is less than the Closing Consideration as set forth in the Final Statement (the "CLOSING STATEMENT") setting forth the current assets minus the current liabilities of the Company (the "WORKING CAPITAL") on the basis described in Annex B, accompanied by a report from Arthur Andersen LLP; PROVIDED, HOWEVER, if the transactions contemplaxxx xx Xxxxxxx 4.11(a) or (b) occursuch shortfall, the Closing Statement will “Shortfall Amount”), then within two (2) Business Days following the Final Determination Date (i) Parent shall deliver or cause to be prepared delivered to the Securityholders’ Representative, for further distribution to the Securityholders in accordance with Section 2.7(a) (ii) and Section 2.7(c)(ii), as if applicable, a number of shares of Parent Common Stock equal to (x) the Com pany did not own Shortfall Amount divided by (y) the Dermablend Business or the National Cosmetics Business and the Iman Business VWAP as of the Closing Date, and (ii) Parent and the Securityholders’ Representative shall deliver joint written instructions to the Escrow Agent to disburse from the Working Capital Escrow Account to the Securityholders’ Representative and the Payroll Provider, as applicable, for further distribution to the case Securityholders in accordance with Section 2.7(a)(iii) and Section 2.7(c)(iii), as applicable, an amount equal to the aggregate amount then remaining in the Working Capital Escrow Account.
(d) If the Closing Consideration as set forth in the Closing Date Statement is greater than the Closing Consideration as set forth in the Final Statement (such excess, the “Excess Amount”), then Parent shall satisfy the Excess Amount (i) first, from amounts then remaining in the Working Capital Escrow Account, and (ii) second, to the extent that the Excess Amount exceeds the amounts then remaining in the Working Capital Escrow Account, from amounts then remaining in the Indemnity Escrow Account; provided that Parent may be; PROVIDED FURTHER (but shall not be obligated to) offset any portion of the Excess Amount in excess of amounts remaining in the Working Capital Escrow Account against (A) any portion of the Earnout Consideration that if Buyer retains becomes deliverable to the Dermablend Business and, Securityholders pursuant to Section 4.11(b), sells the National Cosmetics Business and the Iman Business, the Dermablend Business will also include the net accounts receivable (other than the Designated Receivables (as defined in Section 4.11)), bank overdraft, accounts payable and accrued expenses related to the National Cosmetics Business and the Iman Business. Seller and its authorized representatives shall have reasonable access to all relevant books and records and employees 1.1(b) of the Company Disclosure Schedule and/or (B) any shares of Parent Common Stock issued to the Securityholders pursuant to this Agreement and held by such Securityholders at the time of such offset (it being understood that such shares shall be valued for purposes of such offset at the VWAP as of the Final Determination Date). In the event that there is an Excess Amount, within two (2) Business Days following the Closing Final Determination Date (x) Parent and the Securityholders’ Representative shall deliver joint written instructions to the extent required Escrow Agent to complete preparation disburse from the Working Capital Escrow Account (and the Indemnity Escrow Account, if applicable) to Parent an amount equal to the Excess Amount (or such lesser amount as then remains in the Working Capital Escrow Account (and the Indemnity Escrow Account, if applicable)) and (y) if, after disbursement to Parent of the Closing Statement, including, without limitation, preparation of any financial reports or schedules needed to complete the Closing Statement. Seller and Buyer shall split equally the cost of preparing and delivering the Closing Statement.
(b) After receipt of the Closing Statement, Buyer shall have 15 days to review it. Buyer and its authorized representatives shall have reasonable access to Seller's accountants to the extent required to complete their review of the Closing Statement, including, without limitation, the accountants' work papers used in preparation thereof. Unless Buyer delivers written notice to Seller on or prior to the 15th day after receipt of the Closing Statement specifying in reasonable detail its objections to the Closing Statement on the grounds that the Closing Statement (i) was not prepared Excess Amount in accordance with this Section 1.4 or (ii) contained arithmetic errors2.8(d), any amount remains in the parties Working Capital Escrow Account, then Parent and the Securityholders’ Representative shall be deemed to have accepted and agreed deliver joint written instructions to the Closing Statement. If Buyer so notifies Seller of such an objection Escrow Agent to disburse from the Working Capital Escrow Account to the Closing StatementSecurityholders’ Representative and the Payroll Provider, the parties shall within 15 days following the date of such notice (the "RESOLUTION PERIOD") attempt to resolve their differences.
(c) At the conclusion of the Resolution Periodas applicable, any amounts remaining in dispute shall, at the election of either party, be submitted to Price Waterhouse (the "NEUTRAL AUDITOR"). The Neutral Auditor shall be engaged within five days after an election by either party to submit its objections for further distribution to the Neutral Auditor, and each party agrees to execute, if requested by the Neutral Auditor, a reasonable engagement letter. All fees and expenses of the Neutral Auditor shall be borne equally by Seller and Buyer. The Neutral Auditor shall act as an arbitrator to determine, based solely on the written presentations by Seller and Buyer made within 15 days of the Neutral Auditor's engagement or such other reasonable period of time to which the parties agree, and not by independent review, only those issues still in dispute. The Neutral Auditor's determination shall be made within 30 days after Seller's and Buyer's written presentations have been made, shall be set forth in a written statement delivered to Seller and Buyer and shall be final, binding, conclusive and nonappealable. The term "FINAL CLOSING STATEMENT" shall mean the definitive Closing Statement agreed to by Seller and Buyer Securityholders in accordance with Section 1.4(b2.7(a)(iii) or and Section 2.7(c)(iii), as applicable, an amount equal to the definitive Closing Statement resulting from aggregate amount that so remains in the determination made by Working Capital Escrow Account.
(e) Notwithstanding anything herein to the Neutral contrary, the authority of the Auditor under this Section 2.8 shall be limited solely to the resolution of the calculation of the Disputed Line Items, and all other disputes between the parties (including with respect to the contractual interpretation of this Section 2.8) shall be resolved in accordance with this Section 1.4(c) (in addition to those items theretofore agreed to by Seller and Buyer).10.11.
Appears in 1 contract
Samples: Merger Agreement (Ideanomics, Inc.)
Purchase Price Adjustment. (a) As soon as practicable but not later than 60 Within sixty (60) calendar days following after the Closing Date, Seller the Parent shall prepare and deliver to Buyer the Stockholders’ Representative a working capital statement (the “Statement”) of the Company as of Net Indebtedness, the close of business on the Closing Date (the "CLOSING STATEMENT") setting forth the current assets minus the current liabilities of Preferred Liquidation Amount and the Company (the "WORKING CAPITAL") on the basis described in Annex B, accompanied by a report from Arthur Andersen LLP; PROVIDED, HOWEVER, if the transactions contemplaxxx xx Xxxxxxx 4.11(a) or (b) occur, the Closing Statement will be prepared as if the Com pany did not own the Dermablend Business or the National Cosmetics Business and the Iman Business as of the Closing Date, as the case may be; PROVIDED FURTHER that if Buyer retains the Dermablend Business and, pursuant to Section 4.11(b), sells the National Cosmetics Business and the Iman Business, the Dermablend Business will also include the net accounts receivable (other than the Designated Receivables (as defined in Section 4.11)), bank overdraft, accounts payable and accrued expenses related to the National Cosmetics Business and the Iman Business. Seller and its authorized representatives shall have reasonable access to all relevant books and records and employees of the Company following the Closing Date to the extent required to complete preparation of the Closing Statement, including, without limitation, preparation of any financial reports or schedules needed to complete the Closing Statement. Seller and Buyer shall split equally the cost of preparing and delivering the Closing StatementExpenses.
(b) After receipt of The Statement shall become final and binding upon the Closing Statement, Buyer shall have 15 days to review it. Buyer and its authorized representatives shall have reasonable access to Seller's accountants parties on the thirtieth (30th) day following the date on which the Statement was delivered to the extent required to complete their review of Stockholders’ Representative, unless the Closing Statement, including, without limitation, the accountants' work papers used in preparation thereof. Unless Buyer Stockholders’ Representative delivers written notice of its disagreement with the Statement (a “Notice of Disagreement”) to Seller on or the Parent prior to the 15th day after receipt such date. Any Notice of the Closing Statement specifying Disagreement shall specify in reasonable detail its objections to the Closing Statement on nature of any disagreement. If a Notice of Disagreement is received by the grounds that Parent in a timely manner, then the Closing Statement (i) was not prepared as revised in accordance with this Section 1.4 or sentence) shall become final and binding upon the Stockholders and the Parent on the earlier of (i) the date the Stockholders’ Representative and the Parent resolve in writing any differences they have with respect to the matters specified in the Notice of Disagreement and (ii) contained arithmetic errorsthe date any disputed matters are finally resolved in writing by the Accounting Firm pursuant to this Section 3.6(b). During the thirty (30)-day period following the delivery of a Notice of Disagreement, the parties Stockholders’ Representative and the Parent shall seek in good faith to resolve in writing any differences that they may have with respect to the matters specified in the Notice of Disagreement. If at the end of such thirty (30)-day period the Stockholders’ Representative and the Parent have not resolved in writing the matters specified in the Notice of Disagreement, the Stockholders’ Representative and the Parent shall submit to an independent accounting firm (the “Accounting Firm”) for arbitration, in accordance with the standards set forth in this Section 3.6(b), only such matters specified in the Notice of Disagreement that remain in dispute. The Accounting Firm shall be deemed KPMG LLP or, if such firm is unable or unwilling to have accepted act, such other nationally recognized independent public accounting firm as shall be agreed upon by the Stockholders’ Representative and agreed the Parent in writing. The Stockholders’ Representative and the Parent shall use reasonable efforts to cause the Accounting Firm to render a written decision resolving the matters submitted to the Closing Statement. If Buyer so notifies Seller Accounting Firm within thirty (30) calendar days of the receipt of such an objection submission. The scope of the disputes to be resolved by the Accounting Firm shall be limited to fixing mathematical errors and determining whether the items in dispute were properly included or omitted and the Accounting Firm is not to make any other determination. The Accounting Firm’s decision shall be based solely on written submissions by the Stockholders’ Representative and the Parent and their respective representatives and not by independent review and shall be final and binding on all of the parties hereto. The Accounting Firm may not assign a value greater than the greatest value for such item claimed by either party or smaller than the smallest value for such item claimed by either party. Judgment may be entered upon the determination of the Accounting Firm in any court having jurisdiction over the party against which such determination is to be enforced. The fees and expenses of the Accounting Firm incurred pursuant to this Section 3.6(b) shall be borne pro rata as between the Stockholders, on the one hand, and the Parent, on the other hand, in proportion to the Closing Statementfinal allocation made by such Accounting Firm of the disputed items weighted in relation to the claims made by the Stockholders’ Representative and the Parent, such that the parties shall within 15 days following prevailing party pays the date lesser proportion of such notice (the "RESOLUTION PERIOD") attempt to resolve their differencesfees, costs and expenses.
(c) At For the conclusion purposes of this Agreement, “Final Company Net Indebtedness” means the Resolution PeriodCompany Net Indebtedness, any amounts remaining in dispute shall, at “Final Preferred Liquidation Amount” means the election of either party, be submitted to Price Waterhouse (the "NEUTRAL AUDITOR"). The Neutral Auditor shall be engaged within five days after an election by either party to submit its objections to the Neutral AuditorPreferred Liquidation Amount, and “Final Company Expenses” means the Company Expenses, in each party agrees to execute, if requested by the Neutral Auditor, a reasonable engagement letter. All fees and expenses of the Neutral Auditor shall be borne equally by Seller and Buyer. The Neutral Auditor shall act case as an arbitrator to determine, based solely on the written presentations by Seller and Buyer made within 15 days of the Neutral Auditor's engagement finally agreed or such other reasonable period of time to which the parties agree, and not by independent review, only those issues still in dispute. The Neutral Auditor's determination shall be made within 30 days after Seller's and Buyer's written presentations have been made, shall be set forth in a written statement delivered to Seller and Buyer and shall be final, binding, conclusive and nonappealable. The term "FINAL CLOSING STATEMENT" shall mean the definitive Closing Statement agreed to by Seller and Buyer determined in accordance with Section 1.4(b) or the definitive Closing Statement resulting from the determination made by the Neutral Auditor in accordance with this Section 1.4(c) (in addition to those items theretofore agreed to by Seller and Buyer).3.6
Appears in 1 contract
Samples: Merger Agreement (BioScrip, Inc.)
Purchase Price Adjustment. (a) As soon as practicable but not later than 60 Within forty five days following after the Closing Date, Seller Buyer shall prepare and deliver to Buyer Seller a working capital statement balance sheet of the Company Business as of the close of business on the Closing Date (the "CLOSING STATEMENTDATE BALANCE SHEET") setting ). The Closing Date Balance Sheet shall set forth the current assets minus the current liabilities net tangible asset value of the Company Business (the "WORKING CAPITALCLOSING DATE NET TANGIBLE ASSET VALUE") on ), which shall be calculated by subtracting the basis described in Annex Bfollowing from total assets: goodwill, accompanied by a report from Arthur Andersen LLP; PROVIDEDaccounts payable, HOWEVERcurrent lease obligations, if the transactions contemplaxxx xx Xxxxxxx 4.11(a) or (b) occuraccrued salary, foreign income taxes, other accrued obligations and long term lease obligations. Buyer shall prepare the Closing Statement will be prepared as if Date Balance Sheet in accordance with: (i) the Com pany did not own same practice standards and procedures used in the Dermablend Business or the National Cosmetics Business and the Iman Business as preparation of the Closing Date, as the case may be; PROVIDED FURTHER that if Buyer retains the Dermablend Business and, pursuant to Section 4.11(b), sells the National Cosmetics Business and the Iman Business, the Dermablend Business will also include the net accounts receivable (other than the Designated Receivables Financial Statements (as defined in Section 4.114.5 below)); and (ii) all books, bank overdraft, accounts payable and accrued expenses related to the National Cosmetics Business and the Iman Business. Seller and its authorized representatives shall have reasonable access to all relevant books and records and employees accounts of the Company following the Closing Date to the extent required to complete preparation of the Closing StatementSeller. Any extraordinary or non-recurring material liabilities, including, without limitation, preparation of any financial reports liabilities associated with Buyer's post-Closing decision to sublease or schedules needed assign the lease relating to complete Seller's Addison, Illinois Facility, shall not be reflected in the Closing Statement. Seller and Buyer shall split equally Date Balance Sheet without the cost prior written consent of preparing and delivering the Closing StatementSeller, which may be withheld in Seller's sole discretion.
(b) After receipt For the purposes of preparing the Closing StatementDate Balance Sheets, following the Closing, Buyer shall have 15 days to review it. Buyer take the appropriate actions and its authorized representatives shall have reasonable access to use appropriate accounting methods, consistent with generally accepted accounting principles and Seller's accountants past practices and perpetual inventory records and inventory valuation methodologies consistent with past practices to determine the extent required to complete their review of Inventory transferred on the Closing StatementDate by Seller, including, without limitation, the accountants' work papers used in preparation thereof. Unless Buyer delivers written notice to and Seller on (or prior to the 15th day after receipt of the Closing Statement specifying in reasonable detail its objections to the Closing Statement on the grounds that the Closing Statement (irepresentatives) was not prepared in accordance with this Section 1.4 or (ii) contained arithmetic errors, the parties shall be deemed permitted to have accepted observe such actions and agreed to the Closing Statementreview such methods. If Buyer so notifies Seller of such an objection to the Closing Statement, the parties Each party shall within 15 days following the date of such notice (the "RESOLUTION PERIOD") attempt to resolve their differencesbear its own expense in connection therewith.
(c) At Seller and its representatives shall have the conclusion right to review all work papers and procedures used to prepare the Closing Date Balance Sheet and shall have the right to perform any other reasonable procedures necessary to verify the accuracy thereof. Unless Seller, within thirty days after delivery to Seller of the Resolution PeriodClosing Date Balance Sheet, notifies Buyer in writing that it objects to the Closing Date Balance Sheet, and specifies the basis for such objection in writing, the Closing Date Balance Sheet shall become final, binding and conclusive upon the parties for all purposes. If Buyer and Seller are unable to resolve any amounts remaining in objections to the Closing Date Balance Sheet within ten days after any such notification has been given, the dispute shall, at the election of either party, shall be submitted referred to Price Waterhouse Ernst & Young LLP (the "NEUTRAL AUDITORDESIGNATED ACCOUNTANT"). The Neutral Auditor shall be engaged ) for resolution (or, if the Designated Accountant is unavailable, to another nationally recognized public accounting firm mutually agreed upon by Buyer and Seller within five days after from the date upon which the Designated Accountant notifies the parties that it is not available). If Buyer and Seller are unable to agree upon the designation of such an election by accounting firm within such time, either party may thereafter request that the President of the American Arbitration Association make such designation. The accounting firm so designated will make a determination as to submit its objections each of the items in dispute, which determination shall be final, conclusive and binding upon each of the parties hereto. Buyer and Seller shall cooperate with each other and with each other's authorized representatives in order to resolve any and all matters in dispute under this Section 2.2(c) as soon as practicable and shall share the Neutral Auditor, and each party agrees to execute, if requested by the Neutral Auditor, a reasonable engagement letter. All fees and expenses of the Neutral Auditor shall be borne equally by Seller and Buyer. The Neutral Auditor shall act Designated Accountant and, as an arbitrator to determinenecessary, based solely on the written presentations by Seller and Buyer made within 15 days of the Neutral Auditor's engagement or such other reasonable period of time to which American Arbitration Association, equally.
(i) For the parties agreepurposes hereof, and not by independent review, only those issues still in dispute. The Neutral Auditor's determination shall be made within 30 days after Seller's and Buyer's written presentations have been made, shall be set forth in a written statement delivered to Seller and Buyer and shall be final, binding, conclusive and nonappealable. The the term "FINAL CLOSING STATEMENTBASE ASSET AMOUNT" shall mean the definitive Closing Statement agreed to by Seller and Buyer in accordance with Section 1.4(b) or the definitive Closing Statement resulting from the determination made by the Neutral Auditor in accordance with this Section 1.4(c) (in addition to those items theretofore agreed to by Seller and Buyer)means $33,546,000.
Appears in 1 contract
Purchase Price Adjustment. (a) As soon as practicable but not The Sellers shall, no later than 60 days following 20 Business Days prior to the expected Closing Date begin preparing, and shall deliver to the Buyer no later than ten Business Days prior to the expected Closing Date, Seller shall prepare and deliver to Buyer a working capital statement of the Company as of the close of business on the Closing Date (the "CLOSING STATEMENT"“Estimated Closing Statement”) setting forth the current assets minus the current liabilities ARC’s good faith estimate of the Company Adjustment Amount (the "WORKING CAPITAL"“Estimated Adjustment Amount”) on and each of the basis described in Annex B, accompanied by a report from Arthur Andersen LLP; PROVIDED, HOWEVER, if the transactions contemplaxxx xx Xxxxxxx 4.11(a) or (b) occur, the components thereof. The Estimated Closing Statement will shall be prepared in consultation with the Buyer and shall be reasonably acceptable to the Buyer. Promptly upon the Buyer’s request, ARC shall make available to the Buyer and its Representatives copies of any back-up materials used by ARC in preparing the Estimated Closing Statement and such other materials as if the Com pany did not own the Dermablend Business or the National Cosmetics Business and the Iman Business as Buyer may reasonably request in connection with its review of the Closing Date, as the case may be; PROVIDED FURTHER that if Buyer retains the Dermablend Business and, pursuant to Section 4.11(b), sells the National Cosmetics Business and the Iman Business, the Dermablend Business will also include the net accounts receivable (other than the Designated Receivables (as defined in Section 4.11)), bank overdraft, accounts payable and accrued expenses related to the National Cosmetics Business and the Iman Business. Seller and its authorized representatives shall have reasonable access to all relevant books and records and employees of the Company following the Closing Date to the extent required to complete preparation of the Closing Statement, including, without limitation, preparation of any financial reports or schedules needed to complete the Closing Statement. Seller and Buyer shall split equally the cost of preparing and delivering the Estimated Closing Statement.
(b) After Within 90 days after the Closing Date, the Buyer shall cause to be prepared and delivered to ARC a statement (the “Closing Statement”) setting forth the Buyer’s good faith determination the Adjustment Amount and each of the components thereof. Promptly upon ARC’s request, the Buyer shall make available to ARC and its Representatives copies of any back-up materials used by the Buyer in preparing the Closing Statement and such other materials as ARC may reasonably request in connection with their review of the Closing Statement.
(c) Within 30 days after ARC’s receipt of the Closing Statement, ARC shall deliver to the Buyer a written statement either accepting the Closing Statement or specifying any objections thereto. If ARC does not deliver any such objections within such 30 day period, the Closing Statement shall have become final and binding upon all parties. If ARC does deliver such objections within such period, then the parties shall negotiate in good faith for a period of 15 days following the Buyer’s receipt of such objections to review itresolve any such objections. Buyer and its authorized representatives shall have reasonable access If the parties are able to Seller's accountants to the extent required to complete their review of resolve ARC’s objections during such 15 day period, then the Closing Statement, including, without limitation, the accountants' work papers used in preparation thereof. Unless Buyer delivers written notice to Seller on or prior to the 15th day after receipt of the Closing Statement specifying in reasonable detail its objections to the Closing Statement on the grounds that the Closing Statement (i) was not prepared as revised in accordance with this Section 1.4 or (ii) contained arithmetic errorssuch resolution, shall become final and binding upon all parties. If the parties are not able to resolve such objections during such period, then any remaining disputes shall be deemed resolved by a nationally recognized accounting firm upon which ARC and the Buyer shall reasonably agree (the “Accounting Firm”). The Accounting Firm shall be instructed to have accepted and agreed to the Closing Statementresolve any such disputes within 30 days after its appointment. If Buyer so notifies Seller The resolution of such an objection to disputes by the Accounting Firm shall be set forth in writing and binding, shall be within the range of dispute between the Buyer and ARC and shall be conclusive upon all parties. Upon delivery of such resolution, the Closing Statement, as modified in accordance with such resolution, and the parties shall within 15 days following the date of Adjustment Amount as modified in accordance with such notice resolution and set forth therein (the "RESOLUTION PERIOD") attempt to resolve their differences.
(c) At the conclusion of the Resolution Period“Final Adjustment Amount”), any amounts remaining in dispute shall, at the election of either party, be submitted to Price Waterhouse (the "NEUTRAL AUDITOR")shall become final and binding upon all Parties. The Neutral Auditor shall be engaged within five days after an election by either party to submit its objections to the Neutral Auditor, and each party agrees to execute, if requested by the Neutral Auditor, a reasonable engagement letter. All fees and expenses of the Neutral Auditor Accounting Firm shall be borne shared equally by Seller the Buyer and Buyer. The Neutral Auditor shall act as an arbitrator to determine, based solely the Sellers.
(d) Within three Business Days after the date on the written presentations by Seller and Buyer made within 15 days of the Neutral Auditor's engagement or such other reasonable period of time to which the parties agree, and not by independent review, only those issues still in dispute. The Neutral Auditor's determination shall be made within 30 days after Seller's and Buyer's written presentations have been made, shall be set forth in a written statement delivered to Seller and Buyer and shall be final, binding, conclusive and nonappealable. The term "FINAL CLOSING STATEMENT" shall mean the definitive Closing Statement agreed to by Seller becomes final and Buyer binding in accordance with Section 1.4(b1.9(b), (i) or if the definitive Closing Statement resulting Final Adjustment Amount is less than the Estimated Adjustment Amount, ARC shall pay cash in the amount of such shortfall to the Buyer by wire transfer of immediately available funds to an account designated by the Buyer at least two Business Days prior to such payment; and (ii) if the Final Adjustment Amount is greater than the Estimated Adjustment Amount, the Buyer shall pay cash in the amount of such shortfall to ARC by wire transfer of immediately available funds to an account designated by the ARC at least two Business Days prior to such payment. Any such payment shall be made with interest at the Prime Rate from the determination made by Closing Date to the Neutral Auditor in accordance with this Section 1.4(c) (in addition to those items theretofore agreed to by Seller and Buyer)date of payment.
Appears in 1 contract
Samples: Transaction Agreement (Affordable Residential Communities Inc)
Purchase Price Adjustment. (a) As soon as practicable but not later than 60 Within sixty (60) days following of the Closing (the “Delivery Date”), Seller Purchaser shall prepare and deliver to Buyer Seller a working capital statement of the Company as of the close of business on the Closing Date (the "CLOSING STATEMENT") setting forth the current assets minus the current liabilities of the Company (the "WORKING CAPITAL") on the basis described in Annex B, accompanied by a report from Arthur Andersen LLP; PROVIDED, HOWEVER, if the transactions contemplaxxx xx Xxxxxxx 4.11(a) or (b) occur, the Closing Statement will be prepared as if the Com pany did not own the Dermablend Business or the National Cosmetics Business and the Iman Business calculation as of the Closing Date, as the case may be; PROVIDED FURTHER that if Buyer retains the Dermablend Business andprepared in accordance with GAAP, pursuant to Section 4.11(b), sells the National Cosmetics Business and the Iman Business, the Dermablend Business will also include the net accounts receivable (other than the Designated Receivables (as defined in Section 4.11)), bank overdraft, accounts payable and accrued expenses related to the National Cosmetics Business and the Iman Business. Seller and its authorized representatives shall have reasonable access to all relevant books and records and employees of the Company following amount, if any, by which the Current Assets of Seller exceed the Current Liabilities of Seller (“Closing Date to the extent required to complete preparation of the Closing Statement, including, without limitation, preparation of any financial reports or schedules needed to complete the Closing Statement. Seller and Buyer shall split equally the cost of preparing and delivering the Closing StatementNet Working Capital”).
(b) After receipt In the event Closing Date Net Working Capital is less than $1,204,434.00 (the “Baseline Net Working Capital”), Seller shall be required to refund to Purchaser the amount by which Baseline Net Working Capital exceeds Closing Date Net Working Capital. In the event Closing Date Net Working Capital is more than the Baseline Net Working Capital, Purchaser shall be required to pay to Seller the amount by which Closing Date Net Working Capital exceeds Baseline Net Working Capital. Any amounts owed pursuant to this Section 3.3(b) shall be due and payable within thirty (30) days of the Closing StatementDelivery Date, Buyer unless disputed in accordance with Section 3.3(c). The adjustment to the Purchase Price provided for in this Section is hereinafter referred to as the “Purchase Price Adjustment.”
(c) Seller shall have 15 twenty (20) business days from the Delivery Date to review itdeliver a written notice of disagreement to Purchaser (a “Notice of Disagreement”). Buyer During such period, Purchaser shall make the books and its authorized representatives shall have reasonable access to Seller's accountants accounting records relating to the extent required to complete their review of the Closing Statement, including, without limitation, the accountants' Business (including work papers used in preparation thereof. Unless Buyer delivers written notice to Seller on or prior papers) and appropriate accounting personnel reasonably available to the 15th day after receipt Seller. Any such Notice of the Closing Statement specifying Disagreement shall specify in reasonable detail its objections to the nature of any disagreement so asserted. If no Notice of Disagreement is delivered within such twenty (20) business day period, the Closing Statement on Date Net Working Capital amount shall become final and binding upon the grounds that the Closing Statement (i) was not prepared in accordance with this Section 1.4 or (ii) contained arithmetic errorsparties. Following delivery of a Notice of Disagreement, the parties shall be deemed to have accepted and agreed to the Closing Statement. If Buyer so notifies Seller of such an objection to the Closing Statement, the parties shall within 15 days following the date of such notice (the "RESOLUTION PERIOD") attempt to resolve their differences.
(c) At any differences that they may have with respect to any matter specified in the conclusion Notice of Disagreement. If the parties fail to reach a written agreement with respect to all such matters within 60 days of the Resolution PeriodNotice of Disagreement, any amounts remaining then all such matters as specified in dispute shall, at the election Notice of either party, Disagreement as to which such written agreement has not been reached (the “Disputed Matters”) shall be submitted to Price Waterhouse and reviewed by an arbitrator (the "NEUTRAL AUDITOR")“Arbitrator”) selected by Seller and Purchaser. The Neutral Auditor Arbitrator shall act promptly (in no event to exceed 20 days) to resolve all Disputed Matters and his or her decision with respect to all Disputed Matters shall be engaged within five days after an election by either party to submit its objections to final and binding upon the Neutral Auditor, and each party agrees to execute, if requested by the Neutral Auditor, a reasonable engagement letterparties. All The fees and expenses of the Neutral Auditor Arbitrator incurred in resolving the Disputed Matters shall be borne equally by the Seller and BuyerPurchaser. The Neutral Auditor Any adjustment required pursuant to this Section 3.3 shall act as an arbitrator be paid (i) if payable by Seller, at Seller’s election by either or a combination of (A) wire transfer to determinea bank account designated by Purchaser, based solely on or (B) surrender of Holdback Shares valued at the written presentations Closing Price, and (ii) if payable by Seller and Buyer made Purchaser, by the issuance of additional Purchase Shares, in each case within 15 five (5) days of final determination thereof of the Neutral Auditor's engagement or such other reasonable period of time to which the parties agree, and not by independent review, only those issues still in dispute. The Neutral Auditor's determination shall be made within 30 days after Seller's and Buyer's written presentations have been made, shall be set forth in a written statement delivered to Seller and Buyer and shall be final, binding, conclusive and nonappealable. The term "FINAL CLOSING STATEMENT" shall mean the definitive Closing Statement agreed to by Seller and Buyer in accordance with Section 1.4(b) or the definitive Closing Statement resulting from the determination made by the Neutral Auditor in accordance with this Section 1.4(c) (in addition to those items theretofore agreed to by Seller and Buyer)adjustment.
Appears in 1 contract
Purchase Price Adjustment. (a) As The "PURCHASE PRICE ADJUSTMENT" (which may be a positive or negative number) will be equal to the amount determined by subtracting the (i) Closing Working Capital from (ii) the Initial Working Capital. If the Purchase Price Adjustment is positive, the Purchase Price Adjustment shall be paid by wire transfer by Seller to an account specified by Buyer. If the Purchase Price Adjustment is negative, the difference between the Closing Working Capital and the Initial Working Capital shall be paid by wire transfer by Buyer to an account specified by Seller. Payment of the Purchase Price Adjustment, whether by Buyer or Seller, shall be made without interest. Within three (3) Business Days after the calculation of the Closing Working Capital becomes binding and conclusive on the parties, Seller or Buyer, as the case may be, shall make the wire transfer payment provided for in this Section 2.03.
(b) Buyer shall deliver its determination of the Closing Working Capital to Seller as soon as practicable but not later than 60 after the date which is ninety (90) days following the Closing Date, Seller shall prepare and deliver to Buyer a working capital statement of but in no event later than the Company as of the close of business on the Closing Date date which is one hundred five (the "CLOSING STATEMENT"105) setting forth the current assets minus the current liabilities of the Company (the "WORKING CAPITAL") on the basis described in Annex B, accompanied by a report from Arthur Andersen LLP; PROVIDED, HOWEVER, if the transactions contemplaxxx xx Xxxxxxx 4.11(a) or (b) occur, the Closing Statement will be prepared as if the Com pany did not own the Dermablend Business or the National Cosmetics Business and the Iman Business as of days after the Closing Date, as the case may be; PROVIDED FURTHER that if Buyer retains the Dermablend Business and, pursuant to Section 4.11(b), sells the National Cosmetics Business and the Iman Business, the Dermablend Business will also include the net accounts receivable (other than the Designated Receivables (as defined in Section 4.11)), bank overdraft, accounts payable and accrued expenses related to the National Cosmetics Business and the Iman Business. Seller and its authorized representatives shall have reasonable access to all relevant books and records and employees of the Company following the Closing Date to the extent required to complete preparation of the Closing Statement, including, without limitation, preparation of any financial reports or schedules needed to complete the Closing Statement. Seller and Buyer shall split equally the cost of preparing and delivering the Closing Statement.
(b) After receipt of the Closing Statement, Buyer shall have 15 days to review it. Buyer and its authorized representatives shall have reasonable access to Seller's accountants to the extent required to complete their review of the Closing Statement, including, without limitation, the accountants' work papers used in preparation thereof. Unless Buyer delivers written notice to Seller on or prior to the 15th day after receipt of the Closing Statement specifying in reasonable detail its objections to the Closing Statement on the grounds that the Closing Statement (i) was not prepared in accordance with this Section 1.4 or (ii) contained arithmetic errors, the parties shall be deemed to have accepted and agreed to the Closing Statement. If Buyer so notifies Seller of such an objection to the Closing Statement, the parties shall within 15 days following the date of such notice (the "RESOLUTION PERIOD") attempt to resolve their differences.
(c) At the conclusion If within ten (10) days following delivery of the Resolution PeriodClosing Working Capital calculation Seller has not given Buyer written notice of its objection as to the Closing Working Capital calculation (which notice shall state the basis of Seller's objection), any amounts then the Closing Working Capital calculated by Buyer shall be binding and conclusive on the parties and be used in computing the Purchase Price Adjustment.
(d) If Seller duly gives Buyer such notice of objection, and if Seller and Buyer fail to resolve the issues outstanding with respect to the Closing Working Capital within thirty (30) days of Buyer's receipt of Seller's objection notice, Seller and Buyer shall submit the issues remaining in dispute shall, at the election to a firm of either party, be submitted independent public accountants acceptable to Price Waterhouse Buyer and Seller (the "NEUTRAL AUDITORINDEPENDENT ACCOUNTANTS")) for resolution of the issues that remain outstanding with respect to the calculation of Closing Working Capital applying the principles, policies and practices referred to in this Section 2.03 or in the definitions of terms used herein. The Neutral Auditor If issues are submitted to the Independent Accountants for resolution, (i) Seller and Buyer shall furnish or cause to be furnished to the Independent Accountants such work papers and other documents and information relating to the disputed issues as the Independent Accountants may request and are available to that party or its agents and shall be engaged within five days after an election by either party afforded the opportunity to submit its objections present to the Neutral Auditor, Independent Accountants any material relating to the disputed issues and each party agrees to execute, if requested discuss the issues with the Independent Accountants; and (ii) the determination by the Neutral AuditorIndependent Accountants of the issues that remain outstanding with respect to the calculation of Closing Working Capital, as set forth in a reasonable engagement letter. All notice to be delivered to both Seller and Buyer within sixty (60) days of the submission to the Independent Accountants of the issues remaining in dispute, shall be final, binding and conclusive on the parties and shall be used in computing the Purchase Price Adjustment.
(e) The fees and expenses of the Neutral Auditor Independent Accountants incurred in the resolution of any items in dispute shall be borne equally determined by Seller the Independent Accountants and Buyer. The Neutral Auditor shall act as an arbitrator to determine, based solely on the written presentations by Seller and Buyer made within 15 days of the Neutral Auditor's engagement or such other reasonable period of time to which the parties agree, and not by independent review, only those issues still in dispute. The Neutral Auditor's determination shall be made within 30 days after Seller's and Buyer's written presentations have been made, shall be set forth in a written statement delivered to Seller and Buyer their notice and shall be finalallocated and paid by Buyer and Seller in inverse proportion to the extent they prevailed on the items in dispute.
(f) If Buyer reconveys to Seller any Account Receivable pursuant to Section 8.02(b), binding, conclusive and nonappealable. The term "FINAL CLOSING STATEMENT" such reconveyed Accounts Receivable shall mean the definitive Closing Statement agreed to by Seller and Buyer in accordance with Section 1.4(b) or the definitive Closing Statement resulting from the determination made by the Neutral Auditor in accordance with this Section 1.4(c) (in addition to those items theretofore agreed to by Seller and Buyer)thereafter be treated as an Excluded Asset.
Appears in 1 contract
Purchase Price Adjustment. (a) As soon as practicable but not later than Within 60 calendar days following after the Closing Date, Seller Buyer shall prepare and deliver to the Shareholders a statement reflecting the Purchase Price and the calculation thereof (the "Final Statement"). Buyer shall provide the Shareholders with access to copies of all work papers and other relevant documents to verify the entries contained in the Final Statement. The Shareholders shall have a working capital statement period of 15 calendar days after delivery to them of the Final Statement to review it and make any objections the Shareholders may have in writing to Buyer. If written objections to the Final Statement are delivered to Buyer within such 15-day period, then Buyer and the Shareholders shall attempt to resolve the matter or matters in dispute. If no written objections are made within the time period provided above, Buyer shall pay to Cleall Pahl, counsel to the Shareholders, in trust for the Shareholders, the amount, if any, by which the Purchase Price exceeds the Estimated Purchase Price and the Shareholders, in the same proportions as the Shareholders received the Estimated Purchase Price, shall reimburse Buyer the absolute amount, if any, by which the Estimated Purchase Price exceeds the Purchase Price (whether positive or negative), in each case within five calendar days after the end of such 15-day period.
(b) If disputes with respect to the Final Statement cannot be resolved by Buyer and the Shareholders within 15 calendar days after the delivery of the objections to the Final Statement, then either party may submit the specific matters in dispute to KPMG in Edmonton, Alberta, Canada or such other nationally recognized independent accounting firm in Canada as may be approved by Buyer and the Shareholders, which firm shall render its opinion as to such matters. Based on such opinion, such independent accounting firm will then send to Buyer and the Shareholders its determination on the specific matters in dispute, which determination shall be final and binding on the parties hereto. Within five calendar days after delivery of such opinion to Buyer and the Shareholders, Buyer shall pay to Cleall Pahl, counsel to the Shareholders, in trust for the Shareholders, the amount, if any, by which the Purchase Price exceeds the Estimated Purchase Price and the Shareholders, in the same proportions as the Shareholders received the Estimated Purchase Price, shall reimburse Buyer the absolute amount, if any, by which the Estimated Purchase Price exceeds the Purchase Price (whether positive or negative). The fees and other costs charged by each party's own independent accounting firm shall be borne by such party and the fees and other costs charged by the independent accounting firm shall be borne by Buyer, on the one hand, and the Shareholders, on the other hand, equally.
(c) The calculation of the Purchase Price for purposes of the Final Statement shall be based on a consolidated balance sheet of the Company as of the close of business on the Closing Date and shall be prepared as of the time prior to the funding to the Company by the Buyer of the amounts of the Special Distribution and Special Shareholder Loans (the "CLOSING STATEMENT") setting forth the current assets minus the current liabilities of the Company (the "WORKING CAPITAL") on the basis described in Annex B, accompanied by a report from Arthur Andersen LLP; PROVIDED, HOWEVER, if the transactions contemplaxxx xx Xxxxxxx 4.11(a) or (b) occur, the Closing Statement will be prepared as if the Com pany did not own the Dermablend Business or the National Cosmetics Business and the Iman Business as of the Closing Date, as the case may be; PROVIDED FURTHER that if Buyer retains the Dermablend Business and, pursuant to Section 4.11(b), sells the National Cosmetics Business and the Iman Business, the Dermablend Business will also include the net accounts receivable (other than the Designated Receivables (as defined in Section 4.11)), bank overdraft, accounts payable and accrued expenses related to the National Cosmetics Business and the Iman Business. Seller and its authorized representatives shall have reasonable access to all relevant books and records and employees of the Company following the Closing Date to the extent required to complete preparation of the Closing Statement, including, without limitation, preparation of any financial reports or schedules needed to complete the Closing Statement. Seller and Buyer shall split equally the cost of preparing and delivering the Closing Statement.
(b) After receipt of the Closing Statement, Buyer shall have 15 days to review it. Buyer and its authorized representatives shall have reasonable access to Seller's accountants to the extent required to complete their review of the Closing Statement, including, without limitation, the accountants' work papers used in preparation thereof. Unless Buyer delivers written notice to Seller on or prior to the 15th day after receipt of the Closing Statement specifying in reasonable detail its objections to the Closing Statement on the grounds that the Closing Statement (i) was not prepared in accordance with this Section 1.4 or (ii) contained arithmetic errors, the parties shall be deemed to have accepted and agreed to the Closing Statement. If Buyer so notifies Seller of such an objection to the Closing Statement, the parties shall within 15 days following the date of such notice (the "RESOLUTION PERIOD") attempt to resolve their differences.
(c) At the conclusion of the Resolution Period, any amounts remaining in dispute shall, at the election of either party, be submitted to Price Waterhouse (the "NEUTRAL AUDITORBalance Sheet"). The Neutral Auditor Closing Balance Sheet shall be engaged within five days after an election by either party to submit its objections to prepared in a manner consistent with the Neutral Auditor, and each party agrees to execute, if requested by the Neutral Auditor, a reasonable engagement letter. All fees and expenses consolidated balance sheet of the Neutral Auditor shall be borne equally by Seller and BuyerCompany at October 31, 1997 included in the Financial Statements. The Neutral Auditor shall act as an arbitrator to determine, based solely on For purposes of preparing the written presentations by Seller and Buyer made within 15 days of the Neutral Auditor's engagement or such other reasonable period of time to which the parties agree, and not by independent review, only those issues still in dispute. The Neutral Auditor's determination shall be made within 30 days after Seller's and Buyer's written presentations have been made, shall be set forth in a written statement delivered to Seller and Buyer and shall be final, binding, conclusive and nonappealable. The term "FINAL CLOSING STATEMENT" shall mean the definitive Closing Statement agreed to by Seller and Buyer in accordance with Section 1.4(b) or the definitive Closing Statement resulting from the determination made by the Neutral Auditor in accordance with this Section 1.4(c) (in addition to those items theretofore agreed to by Seller and Buyer).Closing
Appears in 1 contract
Samples: Share Purchase Agreement (Evi Inc)
Purchase Price Adjustment. (a) As soon as practicable but not No later than 60 sixty (60) days following after the Closing Date, Seller Purchaser shall prepare and deliver to Buyer a working capital statement Seller (i) an unaudited balance sheet of the Company as of the close Closing Date prepared in accordance with the Balance Sheet Rules (the “Closing Date Balance Sheet”), (ii) Purchaser’s calculation of business on the Shareholders’ Equity as of the Closing Date (the "CLOSING STATEMENT"“Closing Date Shareholders’ Equity”) setting forth and (iii) the current assets minus the current liabilities of the Company (the "WORKING CAPITAL") on the basis described Closing Purchase Price calculated in Annex B, accompanied by a report from Arthur Andersen LLP; PROVIDED, HOWEVER, if the transactions contemplaxxx xx Xxxxxxx 4.11(a) or accordance with Section 2.7(e).
(b) occurSeller shall have thirty (30) days from the date on which the Closing Date Balance Sheet is delivered to it to review the Closing Date Balance Sheet and the Closing Date Shareholders’ Equity (such period of time, the “Review Period”). The Closing Statement will be prepared as if Date Balance Sheet and the Com pany did not own Closing Date Shareholders’ Equity shall become final and binding upon the Dermablend Business Parties at 5:00 p.m. New York City time on the thirtieth (30th) day of the Review Period unless Seller gives written notice to Purchaser on or prior to such time (such written notice, a “Notice of Disagreement”) stating that it believes the Closing Date Balance Sheet or the National Cosmetics Business Closing Date Shareholders’ Equity contains mathematical errors or was not prepared in accordance with the Balance Sheet Rules. Any Notice of Disagreement shall specify in reasonable detail the nature of any disagreement so asserted. If a Notice of Disagreement is received by Purchaser by the time specified in the immediately preceding sentence, then the Closing Date Balance Sheet and the Iman Business Closing Date Shareholders’ Equity (in each case, as revised in accordance with this sentence) shall become final and binding upon Seller and Purchaser on the earlier of (i) the date Seller and Purchaser resolve in writing any differences they have with respect to the matters specified in the Notice of Disagreement or (ii) the date all disputed matters are finally resolved in writing by the Independent Accounting Firm.
(c) During the thirty- (30-) day period following the delivery of a Notice of Disagreement (such period of time, the “Resolution Period”), Seller and Purchaser shall seek in good faith to resolve in writing any differences that they may have with respect to the matters specified in the Notice of Disagreement. In the event that Seller and Purchaser are unable to agree on any item or items specified in the Notice of Disagreement within the Resolution Period, each of Seller and Purchaser shall prepare separate written reports of such unresolved item or items and deliver such reports to the Independent Accounting Firm within fifteen (15) days after the expiration of the Resolution Period. The Parties shall use their respective commercially reasonable efforts to cause the Independent Accounting Firm to, as soon as practicable and in any event within fifteen (15) days after receiving such written reports, determine the manner in which such item or items shall be treated in the Closing DateDate Balance Sheet or the Closing Date Shareholders’ Equity, as the case may be; PROVIDED FURTHER provided, however, that if Buyer retains the Dermablend Business anddollar amount of each item in dispute shall be determined within the range of dollar amounts proposed by Seller, pursuant to Section 4.11(b)on the one hand, sells and Purchaser, on the National Cosmetics Business other hand. The Parties acknowledge and agree that (i) the review by and the Iman Businessdeterminations of the Independent Accounting Firm shall be limited to, and only to, the Dermablend Business will also include unresolved item or items contained in the net accounts receivable (other than the Designated Receivables (as defined in Section 4.11)), bank overdraft, accounts payable reports prepared and accrued expenses related submitted to the National Cosmetics Business Independent Accounting Firm by Seller and Purchaser and (ii) the determinations by the Independent Accounting Firm shall be based solely on (A) such reports submitted by Seller and Purchaser and the Iman Businessbasis for Seller’s and Purchaser’s respective positions and (B) the Balance Sheet Rules. Seller and its authorized representatives Purchaser agree to enter into an engagement letter with the Independent Accounting Firm containing customary terms and conditions for this type of engagement. The Parties shall use their commercially reasonable efforts to cooperate with and provide non-privileged information and documentation, including work papers, as the Independent Accounting Firm reasonably requests. Any such information or documentation provided by any Party to the Independent Accounting Firm shall be concurrently delivered to the other Party subject, in the case of the Independent Accounting Firm’s work papers, to such other Party entering into a customary release agreement with respect thereto. None of the Parties shall disclose to the Independent Accounting Firm, and the Independent Accounting Firm shall not consider for any purpose, any settlement discussions or settlement offers made by any of the Parties with respect to any objection under this Section 2.7. The determinations by the Independent Accounting Firm as to the item or items in dispute shall be in writing and shall be final, binding and conclusive, absent manifest error, for all purposes of determining the Purchase Price and shall have reasonable access the same effect for all purposes as if such determinations had been embodied in a final judgment, entered by a court of competent jurisdiction, and either Party may petition the Delaware Courts to all relevant books reduce such decision to judgment. The fees, costs and records and employees expenses of retaining the Independent Accounting Firm shall be borne by the non-prevailing Party. For purposes of the Company foregoing, the prevailing Party shall be deemed to be the Party that proposed the position closest in absolute dollar amount to the determination reached by the Independent Accounting Firm. Following the resolution of all disputed items (or if there is no dispute, promptly following the thirtieth (30th) day of the Review Period), Purchaser shall revise the Closing Date Balance Sheet or the Closing Date Shareholders’ Equity, as the case may be, to reflect the resolution of any disputed items (as so revised, or the Closing Date Balance Sheet delivered by Purchaser without revision if no Notice of Disagreement is timely received, the “Final Closing Date Balance Sheet”) and shall deliver a copy thereof to Seller. The Shareholders’ Equity as of the Closing Date and giving effect to the Closing reflected in such Final Closing Date Balance Sheet shall be referred to as the “Final Closing Shareholders’ Equity”.
(d) Each of Seller and Purchaser shall use commercially reasonable efforts to provide promptly to the other Party all non-privileged information as such other Party may reasonably request in connection with such other Party’s review of the Closing Date Balance Sheet, the Closing Date Shareholders’ Equity or the Notice of Disagreement, as the case may be, including all work papers of the accountants who audited, compiled or reviewed the Closing Date Balance Sheet, the Closing Date Shareholders’ Equity or the Notice of Disagreement (subject to, in the case of third-party accountants, the relevant Party entering into a customary release agreement on terms acceptable to the accountant), and shall otherwise cooperate in good faith with such other Party to arrive at a final resolution of the Closing Date Balance Sheet and the Closing Date Shareholders’ Equity.
(e) Effective upon the end of the Review Period (if a Notice of Disagreement is not timely received), or upon the resolution of all matters set forth in the Notice of Disagreement either by mutual agreement of the Parties or by the Independent Accounting Firm, the Closing Purchase Price shall be subject to adjustment as follows: (i) if the Final Closing Shareholders’ Equity is less than the Estimated Closing Shareholders’ Equity, the Closing Purchase Price shall be reduced dollar for dollar by an amount equal to the amount by which the Estimated Closing Shareholders’ Equity exceeds the Final Closing Shareholders’ Equity, which amount shall be paid by Seller to Purchaser in accordance with the provisions of this Section 2.7(e); and (ii) if the Final Closing Shareholders’ Equity is greater than the Estimated Closing Shareholders’ Equity, the Closing Purchase Price shall be increased dollar for dollar by an amount equal to the amount by which the Final Closing Shareholders’ Equity exceeds the Estimated Closing Shareholders’ Equity, which amount shall be paid by Purchaser to Seller in accordance with the provisions of this Section 2.7(e). With respect to the adjustment to the Closing Purchase Price, if any, (A) in the case of clause (i) of this Section 2.7(e), Seller shall pay by wire transfer of immediately available funds, within ten (10) Business Days following the delivery of the Final Closing Date Balance Sheet, the amount of such adjustment together with interest thereon at the Prime Rate as in effect on the date of payment, calculated on the basis of the actual number of days elapsed divided by 365, from the Closing Date to the extent required date of payment, to complete preparation an account or accounts designated by Purchaser in writing, and (B) in the case of clause (ii) of this Section 2.7(e), Purchaser shall pay by wire transfer of immediately available funds, within ten (10) Business Days following the delivery of the Final Closing StatementDate Balance Sheet, includingthe amount of such adjustment together with interest thereon at the Prime Rate as in effect on the date of payment, without limitationcalculated on the basis of the actual number of days elapsed divided by 365, preparation of any financial reports or schedules needed to complete from the Closing StatementDate to the date of payment, to an account or accounts designated by Seller in writing. Seller and Buyer The Parties agree that any payments made pursuant to this Section 2.7(e) shall split equally the cost of preparing and delivering be treated for all Tax purposes as an adjustment to the Closing StatementPurchase Price unless otherwise required by Law.
(bf) After receipt of the Closing StatementPurchaser’s right to indemnification pursuant to Article VII shall not be deemed to limit, Buyer shall have 15 days to review it. Buyer and its authorized representatives shall have reasonable access to Seller's accountants supersede or otherwise affect, or be limited, superseded or otherwise affected by, Purchaser’s rights under this Section 2.7, except to the extent required to complete their review such Loss is expressly taken into account or included in the calculation of the Final Closing Statement, including, without limitation, the accountants' work papers used in preparation thereof. Unless Buyer delivers written notice to Seller on or prior to the 15th day after receipt of the Closing Statement specifying in reasonable detail its objections to the Closing Statement on the grounds that the Closing Statement (i) was not prepared in accordance with this Section 1.4 or (ii) contained arithmetic errors, the parties shall be deemed to have accepted and agreed to the Closing Statement. If Buyer so notifies Seller of such an objection to the Closing Statement, the parties shall within 15 days following the date of such notice (the "RESOLUTION PERIOD") attempt to resolve their differencesDate Balance Sheet.
(c) At the conclusion of the Resolution Period, any amounts remaining in dispute shall, at the election of either party, be submitted to Price Waterhouse (the "NEUTRAL AUDITOR"). The Neutral Auditor shall be engaged within five days after an election by either party to submit its objections to the Neutral Auditor, and each party agrees to execute, if requested by the Neutral Auditor, a reasonable engagement letter. All fees and expenses of the Neutral Auditor shall be borne equally by Seller and Buyer. The Neutral Auditor shall act as an arbitrator to determine, based solely on the written presentations by Seller and Buyer made within 15 days of the Neutral Auditor's engagement or such other reasonable period of time to which the parties agree, and not by independent review, only those issues still in dispute. The Neutral Auditor's determination shall be made within 30 days after Seller's and Buyer's written presentations have been made, shall be set forth in a written statement delivered to Seller and Buyer and shall be final, binding, conclusive and nonappealable. The term "FINAL CLOSING STATEMENT" shall mean the definitive Closing Statement agreed to by Seller and Buyer in accordance with Section 1.4(b) or the definitive Closing Statement resulting from the determination made by the Neutral Auditor in accordance with this Section 1.4(c) (in addition to those items theretofore agreed to by Seller and Buyer).
Appears in 1 contract
Purchase Price Adjustment. The Purchase Price shall be subject to adjustment following the Closing Date in the manner described below.
(a) As soon as practicable but not later than 60 Within thirty (30) days following prior to the Closing Date, Seller shall prepare and deliver Hanover and/or Sellers will conduct a physical count of the Eligible Inventory to be included in the Purchased Assets. Hanover will give five (5) days prior written notice to Buyer a working capital statement of the Company as of the close of business on the Closing Date (the "CLOSING STATEMENT") setting forth the current assets minus the current liabilities of the Company (the "WORKING CAPITAL") on the basis described in Annex B, accompanied by a report from Arthur Andersen LLP; PROVIDED, HOWEVER, if the transactions contemplaxxx xx Xxxxxxx 4.11(a) or (b) occur, the Closing Statement date such inventory count will be prepared as if the Com pany did not own the Dermablend Business or the National Cosmetics Business conducted and the Iman Business as of the Closing Date, as the case may be; PROVIDED FURTHER that if Buyer retains the Dermablend Business and, pursuant to Section 4.11(b), sells the National Cosmetics Business and the Iman Business, the Dermablend Business will also include the net accounts receivable (other than the Designated Receivables (as defined in Section 4.11)), bank overdraft, accounts payable and accrued expenses related to the National Cosmetics Business and the Iman Business. Seller and and/or its authorized representatives accountants shall have reasonable access the right to all relevant books and records and employees of the Company following the Closing Date to the extent required to complete preparation of the Closing Statement, including, without limitation, preparation of any financial reports or schedules needed to complete the Closing Statement. Seller and Buyer shall split equally the cost of preparing and delivering the Closing Statementobserve such inventory count.
(b) After receipt of As soon as reasonably practicable after the Closing Statement, Buyer shall have 15 Date and in any event no later than forty-five (45) days to review it. Buyer and its authorized representatives shall have reasonable access to Seller's accountants to the extent required to complete their review of after the Closing StatementDate, including, without limitation, Hanover and/or Sellers will prepare and present to Buyer the accountants' work papers used in preparation thereof. Unless Buyer delivers written notice to Seller following statements prepared as of 12:01 a.m. (Chicago time) on or prior to the 15th day after receipt of the Closing Statement specifying in reasonable detail its objections to the Closing Statement on the grounds that the Closing Statement Date statements indicating: (i) was not prepared the amount of Eligible Inventory included in the Purchased Assets, (ii) the amount of prepaid advertising included in the Purchased Assets, determined in accordance with this Section 1.4 or Sellers' normal accounting practices, consistently applied, and (iiiii) contained arithmetic errors, the parties shall be deemed to have accepted and agreed to number of Active Customers of the Closing Statement. If Buyer so notifies Seller of such an objection to the Closing Statement, the parties shall within 15 days following the date of such notice Business (the "RESOLUTION PERIODInitial Closing Statements") attempt to resolve their differences).
(c) At the conclusion Upon receipt of the Resolution PeriodInitial Closing Statements, any amounts remaining Buyer and its accountants shall be permitted during the succeeding thirty (30) day period to examine the accounting records and work papers prepared by Hanover and/or Sellers or their accountants in dispute shallconnection with the preparation of the Initial Closing Statements. If Buyer agrees to the Initial Closing Statements, at they shall become the election of either party, be submitted to Price Waterhouse final closing statements (the "NEUTRAL AUDITORFinal Closing Statements"). If Buyer does not agree to the Initial Closing Statements, it shall within thirty (30) days after delivery of the Initial Closing Statements by Hanover and/or Sellers, prepare and deliver to Hanover a list of disputed adjustments (the "Disputed Adjustments") to the Initial Closing Statements. Buyer and Hanover shall use their best efforts to resolve the Disputed Adjustments. If Buyer and Hanover are able to reach an agreement on the Disputed Adjustments, the Initial Closing Statements shall be amended to reflect such agreement and shall become the Final Closing Statements.
(d) If Buyer and Hanover are unable to reach an agreement on the Disputed Adjustments within thirty (30) days after receipt by Buyer of the Disputed Adjustments, then the Disputed Adjustments shall be resolved by a nationally-recognized firm of certified public accountants mutually acceptable to Buyer and Hanover (the "Accounting Referee"). The Neutral Auditor parties shall be engaged within five days after an election by either party use their Reasonable Efforts to submit its objections cause the Accounting Referee to promptly review the Neutral AuditorDisputed Adjustments and determine the final value of each of the Disputed Adjustments. In making such determination, the Accounting Referee shall consider only the items or amounts in dispute (and any other items or amounts relating thereto), and the determination of each party agrees to executeDisputed Adjustment's value, if requested by as so computed, shall not, in any event, be less than zero or greater than the Neutral Auditor, a reasonable engagement letter. All fees and expenses amount of the Neutral Auditor shall be borne equally by Seller and BuyerDisputed Adjustments. The Neutral Auditor shall act as an arbitrator to determine, based solely on the written presentations by Seller and Buyer made within 15 days of the Neutral Auditor's engagement or such other reasonable period of time to which the parties agree, and not by independent review, only those issues still in dispute. The Neutral Auditor's Such determination shall be made within 30 thirty (30) days after Seller's the date on which the Accounting Referee receives notice of the Disputed Adjustments. The Initial Closing Statements shall then be amended to reflect the determination of the final value of each of the Disputed Adjustments and Buyer's written presentations have been madeshall become the Final Closing Statements, which shall be set forth in a written statement delivered conclusive and binding on the parties to Seller and Buyer this Agreement for purposes of determining any adjustment of the Purchase Price pursuant to this Section 2.4 and shall be final, binding, conclusive and nonappealablenon-appealable. The term "FINAL CLOSING STATEMENT" fees, costs and expenses of the Accounting Referee in conducting such review shall mean be shared equally by Buyer and Hanover.
(e) The amount of the definitive Purchase Price shall be adjusted based on the Final Closing Statements as follows:
(i) The Purchase Price shall be either (A) increased by the amount of Eligible Inventory reflected on the Final Closing Statement agreed in excess of $2,500,000, subject to a maximum increase of no more than $600,000, or (B) decreased by Seller and Buyer in accordance with Section 1.4(b) or the definitive amount of Eligible Inventory reflected on the Final Closing Statement resulting from less than $2,500,000;
(ii) The Purchase Price shall be either (A) increased by the amount of prepaid advertising reflected on the Final Closing Statement in excess of $400,000, subject to a maximum increase of no more than $50,000, or (B) decreased by the amount of prepaid advertising reflected on the Final Closing Statement less than $400,000; and
(iii) The Purchase Price shall be either (A) increased by an amount equal to $8 multiplied by the number of Active Customers reflected on the Final Closing Statement greater than 97,000, subject to a maximum increase of no more than $160,000, or (B) decreased by an amount equal to $8 multiplied by the number of Active Customers reflected on the Final Closing Statement less than 97,000. Within five (5) business days after the determination made of the Final Closing Statements, either Buyer shall pay to Sellers the amount of the net increase in Purchase Price or Sellers shall pay to Buyer the amount of the net decrease in the Purchase Price, in each case as determined as provided in this Section 2.4(e). The parties agree that any amounts due to Buyer pursuant to this Section 2.4(e) shall be first offset against the payments due to Sellers pursuant to Section 2.l(iii) and (iv) hereof and next by the Neutral Auditor in accordance with redemption of shares of the shares of Preferred Stock issued pursuant to Section 2.1(v) hereof Any remaining amounts due to Buyer pursuant to this Section 1.4(c2.4(e) (shall be paid in addition to those items theretofore agreed to by Seller and Buyer)cash.
Appears in 1 contract
Purchase Price Adjustment. (a) As soon as practicable but not later than 60 days following A. On the Closing Date, Purchaser shall deliver the Purchase Price to Seller shall prepare and deliver to Buyer a working capital statement by certified check or wire transfer.
B. The Purchase Price is based on Seller's representation of the Company annualized Tower Cash Flow set forth on Exhibit "B" attached hereto and made a part hereof. Prior to the Closing Date, Purchaser shall verify the accuracy of the calculation of Tower Cash Flow specified in Exhibit "B", based on the information to be provided to Purchaser by Seller pursuant to Section 9 hereof. In the event Purchaser determines prior to the Closing Date that Tower Cash Flow as of the close of business date hereof, as annualized based on the Closing Date (the "CLOSING STATEMENT") setting forth the current assets minus the current liabilities actual income and expenses of the Company Sites for the twelve (12) month period preceding the "WORKING CAPITAL") date hereof, is less than $143,257.44, then the Purchase Price shall be adjusted to equal the product of 10.5 and Tower Cash Flow as determined by Purchaser. Further, in the event that this Agreement is terminated with respect to one of the two Sites, then the Purchase Price shall be adjusted to equal the Adjusted Purchase Price for the remaining Site according to its Tower Cash Flow, as such Tower Cash Flow is determined by Purchaser. In the event that the reduction in Tower Cash Flow is caused solely or in part by the fact that Nextel Partners has not fully installed and commenced on the basis described in Annex B, accompanied by a report from Arthur Andersen LLP; PROVIDED, HOWEVER, if the transactions contemplaxxx xx Xxxxxxx 4.11(a) or (b) occur, the Closing Statement will be prepared as if the Com pany did not own the Dermablend Business or the National Cosmetics Business and the Iman Business Xxxxx site as of the Closing Date, as the case may be; PROVIDED FURTHER that if Buyer retains the Dermablend Business and, pursuant Purchase Price paid to Section 4.11(b), sells the National Cosmetics Business and the Iman Business, the Dermablend Business will also include the net accounts receivable (other than the Designated Receivables (as defined in Section 4.11)), bank overdraft, accounts payable and accrued expenses related to the National Cosmetics Business and the Iman Business. Seller and its authorized representatives shall have reasonable access to all relevant books and records and employees of the Company following at the Closing Date to the extent required to complete preparation of the Closing Statement, including, without limitation, preparation of any financial reports or schedules needed to complete the Closing Statement. Seller and Buyer shall split equally the cost of preparing and delivering the Closing Statement.
(b) After receipt of the Closing Statement, Buyer shall have 15 days to review it. Buyer and its authorized representatives shall have reasonable access to Seller's accountants to the extent required to complete their review of the Closing Statement, including, without limitation, the accountants' work papers used in preparation thereof. Unless Buyer delivers written notice to Seller on or prior to the 15th day after receipt of the Closing Statement specifying in reasonable detail its objections to the Closing Statement on the grounds that the Closing Statement (i) was not prepared in accordance with this Section 1.4 or (ii) contained arithmetic errors, the parties shall be deemed to have accepted and agreed to the Closing Statement. If Buyer so notifies Seller of such an objection to the Closing Statement, the parties shall within 15 days following the date of such notice reduced by $200,000.00 (the "RESOLUTION PERIODEscrow Amount") attempt to resolve their differences.
and Tower Cash Flow shall be considered $124,057.44 for other adjustment purposes. The Escrow Amount shall be placed in an escrow account with an escrow agent of Purchaser's choice for a period of nine (c9) At the conclusion of the Resolution Period, any amounts remaining in dispute shall, at the election of either party, be submitted to Price Waterhouse months (the "NEUTRAL AUDITOREscrow Period"). The Neutral Auditor shall be engaged If Nextel Partners fully installs and its lease fully commences within five days after an election by either party to submit its objections to the Neutral AuditorEscrow Period the Escrow Amount, and each party agrees to execute, if requested by the Neutral Auditor, a reasonable engagement letter. All fees and expenses of the Neutral Auditor shall be borne equally by Seller and Buyer. The Neutral Auditor shall act as an arbitrator to determine, based solely on the written presentations by Seller and Buyer made within 15 days of the Neutral Auditor's engagement or such other reasonable period of time to which the parties agree, and not by independent review, only those issues still in dispute. The Neutral Auditor's determination shall be made within 30 days after Seller's and Buyer's written presentations have been madeall interest earned thereon, shall be set forth in a written statement delivered paid to Seller Seller. If Nextel Partners fails to fully install and/or its lease has not commenced within the Escrow Period, the Escrow Amount and Buyer and the interest earned thereon shall be final, binding, conclusive and nonappealable. The term "FINAL CLOSING STATEMENT" shall mean the definitive Closing Statement agreed paid to by Seller and Buyer in accordance with Section 1.4(b) or the definitive Closing Statement resulting from the determination made by the Neutral Auditor in accordance with this Section 1.4(c) (in addition to those items theretofore agreed to by Seller and Buyer)Purchaser.
Appears in 1 contract
Purchase Price Adjustment. (a) As soon as practicable but not No later than 60 forty-five (45) days following after the Closing Datetwelve (12) month anniversary of the Closing, Seller Buyer shall prepare and deliver to Buyer a working capital statement Seller the balance sheet of the Company as of the close of business on the Closing Date Acquired Entity (the "CLOSING STATEMENT") setting forth the current assets minus the current liabilities of the Company (the "WORKING CAPITAL") on the basis described in Annex B“Closing Balance Sheet”), accompanied by a report from Arthur Andersen LLP; PROVIDED, HOWEVER, if the transactions contemplaxxx xx Xxxxxxx 4.11(a) or (b) occur, the Closing Statement will be prepared as if the Com pany did not own the Dermablend Business or the National Cosmetics Business and the Iman Business as of the Closing Date, as together with a statement (the case may be; PROVIDED FURTHER that if Buyer retains the Dermablend Business and, pursuant to Section 4.11(b“Proposed Final Closing Statement”), sells the National Cosmetics Business and the Iman Business, the Dermablend Business will also include the net accounts receivable (other than the Designated Receivables (as defined setting forth in Section 4.11)), bank overdraft, accounts payable and accrued expenses related to the National Cosmetics Business and the Iman Business. Seller and reasonable detail its authorized representatives shall have reasonable access to all relevant books and records and employees proposed final determination of the Company following RBC Amount as of the Closing Date to and the extent required to complete preparation of Purchase Price calculated based on such determination. The Closing Balance Sheet and the Proposed Final Closing Statement, including, without limitation, preparation of any financial reports or schedules needed to complete Statement shall be prepared in accordance with the Closing Statement. Seller and Buyer shall split equally the cost of preparing and delivering the Closing StatementRun-Out Principles.
(b) After receipt of If Seller disagrees with any item reflected on the Closing Balance Sheet or Proposed Final Closing Statement, Seller must notify Buyer shall have 15 in writing of its objection (“Notice of Disagreement”) within thirty (30) days to review itafter the date on which Seller received the Closing Balance Sheet and the Proposed Final Closing Statement. During such thirty (30) day period, Buyer and the Acquired Entity shall provide Seller and its authorized representatives shall have with reasonable access to Seller's accountants to the extent required to complete their review of the Closing Statementpersonnel, includingbooks, without limitation, the accountants' work records and working papers used in preparation thereof. Unless Buyer delivers written notice to Seller on or prior to the 15th day after receipt of the Closing Statement specifying in reasonable detail its objections related to the Closing Statement on Balance Sheet and the grounds that the Closing Statement (i) was not prepared in accordance with this Section 1.4 or (ii) contained arithmetic errors, the parties shall be deemed to have accepted and agreed to the Proposed Final Closing Statement. If Buyer so notifies Seller does not deliver a Notice of Disagreement within such an objection to the Closing Statement30-day period, the parties Proposed Final Closing Statement shall be final, binding and conclusive on the Parties for purposes of calculating the Purchase Price. If Seller delivers a Notice of Disagreement within 15 days following the date of such notice (the "RESOLUTION PERIOD") 30-day period, Seller and Buyer shall attempt to resolve reconcile their differencesdifferences in good faith, and any written resolution by them as to any disputed amounts shall be final, binding and conclusive on the Parties.
(c) At the conclusion If Seller and Buyer are unable to reach a resolution with respect to all of the Resolution Perioditems specified in the Notice of Disagreement within thirty (30) days after the date of receipt by Buyer of the Notice of Disagreement, any amounts then either Seller or Buyer may submit the items remaining in dispute shall, at for resolution to the election of either party, be submitted to Price Waterhouse (the "NEUTRAL AUDITOR")Independent Accountants. The Neutral Auditor shall be engaged Independent Accountants will review only those unresolved items and amounts specifically set forth and objected to in the Notice of Disagreement and will resolve the dispute with respect to each such specific unresolved item solely in accordance with SAP, the Run-Out Principles and this Agreement within five thirty (30) days after an election by either party such submission or such longer period as the Independent Accountants may reasonably require. Buyer and the Acquired Entity shall provide the Independent Accountants, Seller and their respective representatives with reasonable access to submit its objections personnel, books, records and working papers related to the Neutral Auditor, Closing Balance Sheets and each party agrees to execute, if requested the Proposed Final Closing Statement during the period of review by the Neutral AuditorIndependent Accountants. The Independent Accountants shall act as arbitrator with respect to the determination of the Closing Balance Sheet and the Proposed Final Closing Statement and a decision of the Independent Accountants with respect to the disputed items of the Closing Balance Sheet and/or the Proposed Final Closing Statement will be final, a reasonable engagement letterbinding and conclusive on the Parties. All fees The fees, costs and expenses of the Neutral Auditor Independent Accountants shall be borne equally by Seller allocated between Seller, on the one hand, and Buyer. The Neutral Auditor shall act as an arbitrator to determine, based solely on the written presentations by Seller and Buyer made within 15 days other hand, in the same proportion that the aggregate amount of the Neutral Auditor's engagement disputed items submitted to the Independent Accountants that is unsuccessfully disputed by each such party (as finally determined by the Independent Accountants) bears to the total amount of such disputed items so submitted. All determinations made by the Independent Accountants will be final, conclusive and binding on the parties, absent fraud, arithmetic mistake, or manifest error.
(d) If the Purchase Price as finally determined pursuant to Section 1.5(b) and/or Section 1.5(c) exceeds the Estimated Purchase Price, Buyer shall pay to Seller such other reasonable period excess. If the Purchase Price as finally determined pursuant to Section 1.5(b) and/or Section 1.5(c) is less than the Estimated Purchase Price, Seller shall pay to Buyer the amount of time such difference.
(e) Any payments due pursuant to which the parties agreethis Section 1.5, and not by independent reviewif any, only those issues still in dispute. The Neutral Auditor's determination as finally determined, shall be made within 30 days by wire transfer or delivery of other immediately available funds to the account designated by the recipient thereof no later than five (5) Business Days after Seller's and Buyer's written presentations have been made, shall be the date on which the Parties reach an agreement as set forth in a written statement delivered Section 1.5(b) or, if applicable, the date on which the Independent Accountants’ determination with respect to Seller all unresolved items and Buyer and amounts as set forth in Section 1.5(c) is made. Any payments pursuant to this Section 1.5 shall be finaltreated for all Tax purposes as an adjustment to the Purchase Price, binding, conclusive and nonappealable. The term "FINAL CLOSING STATEMENT" shall mean the definitive Closing Statement agreed to except as otherwise required by Seller and Buyer in accordance with Section 1.4(b) or the definitive Closing Statement resulting from the determination made by the Neutral Auditor in accordance with this Section 1.4(c) (in addition to those items theretofore agreed to by Seller and Buyer)applicable Law.
Appears in 1 contract
Purchase Price Adjustment. (a) As soon as practicable Following the Closing, but not in any event no later than 60 ninety (90) days following thereafter, Buyer shall cause to be prepared and delivered to Seller a statement (the “Closing Date, Seller shall prepare and deliver to Buyer a working capital statement Date Statement”) setting forth its calculation of the Company as VEBA Asset Transfer Amount, and the calculation of the close Final Consideration resulting therefrom.
(b) Buyer and Seller will work in good faith to resolve any disputes relating to the VEBA Asset Transfer Amount and the calculation of business on Final Consideration resulting therefrom within ten (10) Business Days after the delivery of the Closing Date Statement to Seller. If Buyer and Seller do not reach an agreement within such period, the dispute will be submitted to an independent public accounting firm which is mutually agreeable to Buyer and Seller (the "CLOSING STATEMENT"“Purchase Price Independent Accountants”) setting for resolution. If issues are submitted to the Purchase Price Independent Accountants for resolution, (i) Seller and Buyer shall furnish or cause to be furnished to the Purchase Price Independent Accountants such work papers and other documents and information relating to the disputed issues as the Purchase Price Independent Accountants may reasonably request and are available to that Party and its agents and shall be afforded the opportunity to present to the Purchase Price Independent Accountants any material relating to the disputed issues and to discuss the issues with the Purchase Price Independent Accountants; and (ii) the determination by the Purchase Price Independent Accountants, as set forth in a notice to be delivered to Seller and Buyer within thirty (30) days after the current assets minus submission to the current liabilities Purchase Price Independent Accountants of the Company (the "WORKING CAPITAL") issues remaining in dispute, shall be final, binding and conclusive on the Parties, absent manifest error or fraud. The fees and costs of (A) the Purchase Price Independent Accountants for such determination and (B) any enforcement of its determination, shall be borne by Seller and Buyer in inverse proportion as they may prevail on the matters resolved by the Purchase Price Independent Accountants, which proportionate allocation shall be calculated on an aggregate basis described based on the relative dollar values of the amounts in Annex Bdispute and shall be determined by the Purchase Price Independent Accountants at the time of their resolution of the matters in dispute. The VEBA Asset Transfer Amount, accompanied by a report from Arthur Andersen LLP; PROVIDEDas accepted or as finally agreed or determined, HOWEVERwill be the “Final VEBA Asset Transfer Amount” and the Consideration, if as accepted or as finally agreed or determined, will be the transactions contemplaxxx xx Xxxxxxx 4.11(a“Final Consideration.”
(c) or In the event that the Final Consideration (b) occur, as set forth in the Closing Date Statement will be prepared or as if the Com pany did not own the Dermablend Business or the National Cosmetics Business and the Iman Business as of the Closing Datefinally determined pursuant to Section 1.9(b), as the case may be; PROVIDED FURTHER ), is less than the Estimated Consideration, Seller shall promptly, and in any event within five (5) Business Days following the final determination of the Final Consideration, pay to Buyer the absolute value of such difference by wire transfer of immediately available funds to an account designated in writing by Buyer. In the event that if Buyer retains the Dermablend Business and, Final Consideration (as set forth in the Closing Date Statement or as finally determined pursuant to Section 4.11(b1.9(b), sells as the National Cosmetics Business and the Iman Businesscase may be), the Dermablend Business will also include the net accounts receivable (other is greater than the Designated Receivables (as defined in Section 4.11)), bank overdraft, accounts payable and accrued expenses related to the National Cosmetics Business and the Iman Business. Seller and its authorized representatives shall have reasonable access to all relevant books and records and employees of the Company following the Closing Date to the extent required to complete preparation of the Closing Statement, including, without limitation, preparation of any financial reports or schedules needed to complete the Closing Statement. Seller and Buyer shall split equally the cost of preparing and delivering the Closing Statement.
(b) After receipt of the Closing StatementEstimated Consideration, Buyer shall have 15 days to review it. Buyer promptly, and its authorized representatives shall have reasonable access to Seller's accountants to in any event within five (5) Business Days following the extent required to complete their review final determination of the Closing StatementFinal Consideration, including, without limitation, the accountants' work papers used in preparation thereof. Unless Buyer delivers written notice pay to Seller on or prior to the 15th day after receipt of the Closing Statement specifying in reasonable detail its objections to the Closing Statement on the grounds that the Closing Statement (i) was not prepared in accordance with this Section 1.4 or (ii) contained arithmetic errors, the parties shall be deemed to have accepted and agreed to the Closing Statement. If Buyer so notifies Seller absolute value of such difference by wire transfer of immediately available funds to an objection to the Closing Statement, the parties shall within 15 days following the date of such notice (the "RESOLUTION PERIOD") attempt to resolve their differencesaccount designated in writing by Seller.
(c) At the conclusion of the Resolution Period, any amounts remaining in dispute shall, at the election of either party, be submitted to Price Waterhouse (the "NEUTRAL AUDITOR"). The Neutral Auditor shall be engaged within five days after an election by either party to submit its objections to the Neutral Auditor, and each party agrees to execute, if requested by the Neutral Auditor, a reasonable engagement letter. All fees and expenses of the Neutral Auditor shall be borne equally by Seller and Buyer. The Neutral Auditor shall act as an arbitrator to determine, based solely on the written presentations by Seller and Buyer made within 15 days of the Neutral Auditor's engagement or such other reasonable period of time to which the parties agree, and not by independent review, only those issues still in dispute. The Neutral Auditor's determination shall be made within 30 days after Seller's and Buyer's written presentations have been made, shall be set forth in a written statement delivered to Seller and Buyer and shall be final, binding, conclusive and nonappealable. The term "FINAL CLOSING STATEMENT" shall mean the definitive Closing Statement agreed to by Seller and Buyer in accordance with Section 1.4(b) or the definitive Closing Statement resulting from the determination made by the Neutral Auditor in accordance with this Section 1.4(c) (in addition to those items theretofore agreed to by Seller and Buyer).
Appears in 1 contract
Purchase Price Adjustment. (a) The Purchase Price is based on the Company and Global Services having an estimated combined working capital at the Closing Date of $4,000,000 (the “Estimated Working Capital”). The Purchase Price shall be increased or decreased in accordance with this Section 2.5, by the amount, on a dollar for dollar basis, by which the Closing Working Capital is more than the Estimated Working Capital (in which case, Buyer shall pay the difference to Seller) or by which the Closing Working Capital is less than the Estimated Working Capital (in which case, Seller shall pay the difference to Buyer).
(b) As soon promptly as practicable but not later than and in any event within 60 days following after the Closing Date, Seller Buyer shall prepare and deliver to Buyer a working capital statement Seller the consolidated balance sheet of the Company as of the close of business on the Closing Date (the "CLOSING STATEMENT") setting forth the current assets minus the current liabilities of the Company (the "WORKING CAPITAL") on the basis described in Annex B, accompanied by a report from Arthur Andersen LLP; PROVIDED, HOWEVER, if the transactions contemplaxxx xx Xxxxxxx 4.11(a) or (b) occur, the Closing Statement will be prepared as if the Com pany did not own the Dermablend Business or the National Cosmetics Business and the Iman Business Global Services as of the Closing Date(the “Closing Balance Sheet”) prepared in accordance with the WC Methodology, with a calculation of the Working Capital as of the case may be; PROVIDED FURTHER that if Closing (the “Closing Working Capital”). In connection with Buyer’s preparation of the Closing Balance Sheet and any period related to its final determination, Buyer retains and Seller shall cooperate with each other to the Dermablend Business and, pursuant extent reasonably requested by the other party to Section 4.11(bprepare and reach a final determination of the Closing Balance Sheet. No later than 30 days after Buyer delivers the Closing Balance Sheet to Seller (the “Objection Period”), sells Seller shall either accept the National Cosmetics Business Closing Balance Sheet and Buyer’s calculation of Closing Working Capital or provide a notice (the Iman Business“Objection Notice”) listing those items or amounts that Seller disputes, the Dermablend Business will also include the net accounts receivable (other than the Designated Receivables (as defined in Section 4.11)), bank overdraft, accounts payable and accrued expenses related to the National Cosmetics Business and the Iman BusinessSeller’s proposed adjustments. Buyer’s personnel shall cooperate with Seller and its authorized representatives shall permit Seller to have reasonable access to all relevant the Company’s and Global Services’ books and records and employees of the Company following as necessary for Seller to check the Closing Date to Balance Sheet and the extent required to complete Buyer’s preparation of the Closing Statement, including, without limitation, preparation of any financial reports or schedules needed to complete the Closing Statement. Seller and Buyer shall split equally the cost of preparing and delivering the Closing Statement.
(b) After receipt of the Closing Statement, Buyer shall have 15 days to review it. Buyer and its authorized representatives shall have reasonable access to Seller's accountants to the extent required to complete their review of the Closing Statement, including, without limitation, the accountants' work papers used in preparation calculation thereof. Unless Buyer delivers written notice to If Seller on or prior to does not deliver an Objection Notice within the 15th day after receipt of the Closing Statement specifying in reasonable detail its objections to the Closing Statement on the grounds that the Closing Statement (i) was not prepared in accordance with this Section 1.4 or (ii) contained arithmetic errorsObjection Period, the parties Seller shall be deemed to have accepted the Closing Balance Sheet for the purposes of determining the Closing Working Capital and agreed any Purchase Price adjustment under Section 2.5. If Seller timely delivers the Objection Notice, (i) Buyer and Seller shall, during the 30 days following such delivery, use their commercially reasonable efforts to reach agreement on the disputed items or amounts and (ii) all undisputed items and amounts shall be immediately due and payable to the Closing Statementparty entitled to such amounts and shall be paid within five Business Days of the delivery of the Objection Notice. If Buyer so notifies and Seller reach a settlement on the disputed items or amounts within the 30 day period, the agreed upon amount shall constitute the Closing Working Capital. If Buyer and Seller are unable within such 30 day period to resolve the disputed items or amounts, the disputed items or amounts shall be referred to the Independent Accounting Firm for resolution. Each of Seller and Buyer shall be permitted to present its position, in writing, to the Independent Accounting Firm (which position shall also be provided to the other party) within five Business Days of its appointment. Buyer and Seller may respond to the other’s initial position within ten Business Days of receipt of same (which response shall also be provided to the other party). Each party may make an oral presentation to the Independent Accounting Firm (in which case, such presenting party shall notify the other party of such presentation, though the other party shall have no right to be present at such presentation) within 30 days of the appointment of the Independent Accounting Firm. The Independent Accounting Firm shall consider the written and oral presentations of the parties and may conduct an objection independent review to determine and resolve those items and amounts disputed by the parties. The Independent Accounting Firm may accept the position of Seller or Buyer, or may render its own determination of Closing Working Capital, provided, however, the Independent Accounting Firm’s determination must be in an amount that is not more or less than the positions of Seller and Buyer for each item or amount disputed. Within 60 days of its selection, the Independent Accounting Firm shall deliver to Seller and Buyer a written report determining the dispute, and its determinations shall be conclusive and binding upon Buyer and Seller for the purposes of determining the Closing Statement, Working Capital. Buyer and Seller shall equally share the parties shall within 15 days following fees and disbursements of the date of such notice (the "RESOLUTION PERIOD") attempt to resolve their differencesIndependent Accounting Firm.
(c) At the conclusion of the Resolution Period, any amounts remaining in dispute shall, at the election of either party, be submitted to Price Waterhouse (the "NEUTRAL AUDITOR"). The Neutral Auditor shall be engaged within five days after an election by either party to submit its objections Subject to the Neutral Auditor, and each party agrees to execute, if requested by the Neutral Auditor, a reasonable engagement letter. All fees and expenses earlier payment of the Neutral Auditor shall be borne equally by Seller and Buyer. The Neutral Auditor shall act undisputed amounts as an arbitrator to determine, based solely on the written presentations by Seller and Buyer made within 15 days of the Neutral Auditor's engagement or such other reasonable period of time to which the parties agree, and not by independent review, only those issues still in dispute. The Neutral Auditor's determination shall be made within 30 days after Seller's and Buyer's written presentations have been made, shall be set forth in a written statement delivered Section 2.5(b) above, as promptly as practicable and in any event within five Business Days, after the final determination of the Closing Working Capital, if the difference between the actual Closing Working Capital and the Estimated Working Capital is such that an adjustment to the Purchase Price is required under Section 2.5(a), Buyer or Seller and Buyer and shall pay the other the amount due, by wire transfer of immediately available funds to such bank account as shall be final, binding, conclusive and nonappealable. The term "FINAL CLOSING STATEMENT" shall mean the definitive Closing Statement agreed to by Seller and Buyer designated in accordance with Section 1.4(b) or the definitive Closing Statement resulting from the determination made writing by the Neutral Auditor in accordance with this Section 1.4(c) (in addition party entitled to those items theretofore agreed to by Seller and Buyer)the adjustment.
Appears in 1 contract
Samples: Stock Purchase Agreement (Westell Technologies Inc)
Purchase Price Adjustment. (a) As soon as practicable but not later than 60 days following For the purposes of finally determining Closing Date Indebtedness, Closing Date Cash, Closing Date Seller Transaction Expenses and Closing Date Net Working Capital, the Purchasers shall, or shall cause the Purchasers’ accountants to, after the Closing, prepare a statement (the Proposed Closing Statement) showing the amounts, and calculations, of Closing Date Indebtedness, Closing Date Cash, Closing Date Seller Transaction Expenses and Closing Date Net Working Capital, together with reasonable supporting detail with respect to the calculations included therein. The Purchasers shall deliver the Proposed Closing Statement to the Sellers within seventy-five (75) Business Days after the Closing Date, Seller . The Purchasers shall prepare and deliver to Buyer a working capital statement the Proposed Closing Statement strictly in accordance with Section 2.04 of the Company as of the close of business on the Closing Date (the "CLOSING STATEMENT") setting forth the current assets minus the current liabilities of the Company (the "WORKING CAPITAL") on the basis described in Annex B, accompanied by a report from Arthur Andersen LLP; PROVIDED, HOWEVER, if the transactions contemplaxxx xx Xxxxxxx 4.11(a) or Disclosure Schedule.
(b) occur, the The Proposed Closing Statement will shall become binding upon the Parties at 5:00 P.M. New York time on the thirtieth (30th) Business Day following delivery thereof (and shall be prepared as if deemed the Com pany did not own the Dermablend Business or the National Cosmetics Business Final Closing Statement, and the Iman determination contained therein shall be binding) unless the Sellers give written notice of their disagreement with the Proposed Closing Statement (a Notice of Disagreement) to the Purchasers prior to the expiration of such thirty (30) Business as Day period. In addition, a Notice of Disagreement shall specify those items or amounts with which the Sellers disagree in the Proposed Closing Statement and contain a reasonably detailed description of the Closing Date, as the case may be; PROVIDED FURTHER that if Buyer retains the Dermablend Business and, pursuant reasons for their objections to Section 4.11(b), sells the National Cosmetics Business and the Iman Business, the Dermablend Business will also include the net accounts receivable (other than the Designated Receivables (as defined in Section 4.11)), bank overdraft, accounts payable and accrued expenses related to the National Cosmetics Business and the Iman Business. Seller and its authorized representatives shall have reasonable access to all relevant books and records and employees of the Company following the Closing Date each such item or amount contained therein to the extent required made available to complete preparation the Sellers. Items not disputed in the Notice of Disagreement shall be binding upon the Parties.
(c) The objections set forth in the Notice of Disagreement shall be resolved as follows:
(i) During the twenty (20) Business Day period following the delivery of a Notice of Disagreement (such period, the Resolution Period), the Sellers and the Purchasers shall first seek in good faith to resolve such objections. If such objections are so resolved they shall be deemed binding as so resolved and, at such time, the Proposed Closing Statement, includingas modified to reflect such resolution, without limitation, preparation of any financial reports or schedules needed to complete shall be deemed the Closing Statement. Seller and Buyer shall split equally the cost of preparing and delivering the Final Closing Statement.
(bii) After receipt If the Parties do not resolve all of such objections during the Resolution Period, not later than twenty (20) Business Days after the end of the Resolution Period, the Sellers and the Purchasers shall make a written submission to the Accounting Firm for determination any and all matters that remain in dispute (all matters previously resolved shall become part of the Final Closing Statement as resolved) and which were included in the Notice of Disagreement; provided that the scope of any such dispute to be resolved by the Accounting Firm (the Unresolved Objections) shall be limited to whether there were mathematical errors in the Proposed Closing Statement and whether the calculations of the Closing StatementDate Indebtedness, Buyer shall have 15 days to review it. Buyer Closing Date Cash, Closing Date Seller Transaction Expenses and its authorized representatives shall have reasonable access to Seller's accountants to the extent required to complete their review of the Closing Statement, including, without limitation, the accountants' work papers used in preparation thereof. Unless Buyer delivers written notice to Seller on or prior to the 15th day after receipt of the Closing Statement specifying in reasonable detail its objections to the Closing Statement on the grounds that the Closing Statement (i) was not prepared Date Net Working Capital were accurate and performed strictly in accordance with this Section 1.4 the applicable Accounting Principles, and the Accounting Firm shall not make any other determination. The Accounting Firm’s decision with respect to any Unresolved Objection must be within the range of values assigned to each such item in the Proposed Closing Statement and the Notice of Disagreement, respectively.
(iii) The Sellers and the Purchasers (or (iitheir respective accounting advisers on their behalf) contained arithmetic errorsshall each be entitled to make a written submission to the Accounting Firm and to reply once to each other’s written submission. The Parties shall not be entitled to make submissions except as specifically requested by the Accounting Firm. The Parties shall provide, as soon as reasonably practicable, all the parties information and explanations that the Accounting Firm may reasonably require. The precise timetable shall be deemed as agreed with the Accounting Firm, but the Accounting Firm shall be instructed to have accepted and agreed to render its determination regarding only the Closing Statement. If Buyer so notifies Seller of such an objection to the Closing Statement, the parties shall Unresolved Objections in accordance with Section 2.04(c)(ii) within 15 days thirty (30) Business Days following the date of such notice submissions. In making its determination the Accounting Firm shall act as an expert (the "RESOLUTION PERIOD") attempt to resolve their differencesand not as an arbitrator).
(civ) At The resolution by the conclusion Accounting Firm of the Resolution Period, any amounts remaining in dispute Unresolved Objections shall, at the election of either partyabsent manifest error, be submitted binding and at such time, the Proposed Closing Statement, as modified to Price Waterhouse reflect such resolution (and any matters resolved in accordance with Section 2.04(c)(i)), shall be deemed the "NEUTRAL AUDITOR")Final Closing Statement. The Neutral Auditor Parties agree that the procedure set forth in this Section 2.04 for resolving disputes with respect to the Proposed Closing Statement shall be engaged within five days after an election by either party the exclusive method for resolving any disputes with respect to submit its objections to the Neutral AuditorClosing Date Indebtedness, Closing Date Cash, Closing Date Seller Transaction Expenses and each party agrees to execute, if requested by the Neutral Auditor, a reasonable engagement letter. All Closing Date Net Working Capital.
(v) The fees and expenses of the Neutral Auditor Accounting Firm shall be borne equally by Seller the Sellers, on the one hand, and Buyer. The Neutral Auditor shall act as an arbitrator to determinethe Purchasers, on the other hand, based solely on the written presentations following formula:
(A) the Sellers shall pay a portion of such fees and expenses equal to the total of such fees and expenses multiplied by Seller and Buyer made within 15 days a fraction, the numerator of which is the dollar amount of the Neutral Auditor's engagement or such other reasonable period Unresolved Objections resolved in favor of time to which the parties agreePurchasers, and not the denominator of which is the total dollar amount of all Unresolved Objections; and
(B) the Purchasers shall pay a portion of such fees and expenses equal to the total of such fees and expenses multiplied by independent reviewa fraction, only those issues still the numerator of which is the dollar amount of the Unresolved Objections resolved in disputefavor of the Sellers, and the denominator of which is the total dollar amount of all Unresolved Objections.
(d) No later than five (5) Business Days after the Proposed Closing Statement is deemed the Final Closing Statement pursuant to this Section 2.04:
(i) if Closing Date Indebtedness is: (A) less than Estimated Closing Date Indebtedness, the Purchasers shall deliver to the Sellers payment of the amount of such deficit; or (B) greater than Estimated Closing Date Indebtedness, the Sellers shall deliver to the Purchasers payment of the amount of such excess;
(ii) if Closing Date Cash is: (A) less than Estimated Closing Date Cash, the Sellers shall deliver to the Purchasers payment of the amount of such deficit; or (B) greater than Estimated Closing Date Cash, the Purchasers shall deliver to the Sellers payment of the amount of such excess;
(iii) if Closing Date Seller Transaction Expenses are: (A) less than Estimated Closing Date Seller Transaction Expenses, the Purchasers shall deliver to the Sellers payment of the amount of such deficit; or (B) greater than Estimated Closing Date Seller Transaction Expenses, the Sellers shall deliver to the Purchasers payment of the amount of such excess; and
(iv) if Closing Date Net Working Capital is: (A) less than Estimated Closing Date Net Working Capital, the Sellers shall deliver to the Purchasers payment of the amount of such deficit; or (B) greater than Estimated Closing Date Net Working Capital, the Purchasers shall deliver to the Sellers payment of the amount of such excess. The Neutral Auditor's determination Any payments made by any Party pursuant to this Section 2.04(d) shall be made within 30 days after Seller's by wire transfer in immediately available funds to a bank account designated in writing by the Party receiving payment (such designation to be made at least three (3) Business Days prior to such payment). The Parties shall net the payments, if any, to be made pursuant to Section 2.04(d)(i), (ii), (iii) and Buyer's written presentations have been made(iv) such that only one Party is required to deliver amounts required to be paid under this Section 2.04(d).
(e) Until the date the Proposed Closing Statement is deemed the Final Closing Statement pursuant to this Section 2.04, the Purchasers agree that following the delivery of the Proposed Closing Statement to the Sellers pursuant to Section 2.04(a), the Purchasers shall provide and cause to be provided to the Sellers’ Group or any Representative of the Sellers’ Group (provided that the Sellers shall be set forth responsible for any breach of the provisions of confidentiality contained in this Agreement, including Section 6.02(b)) by any such Representative), full access upon reasonable notice during normal business hours to the properties, Contracts (to the extent in effect on the Closing Date) and books and records of the Target Companies, and the Purchasers’ and their accountant’s work papers relevant to the preparation of the Proposed Closing Statement and/or Final Closing Statement and the adjustments contemplated by this Section 2.04, and shall provide the Sellers, upon one of the Seller’s reasonable request and at the Sellers’ expense, with copies of any such Contracts, books, records and work papers. The Purchasers shall cause their personnel who were involved in the preparation of the Proposing Closing Statement (and, if applicable, any personnel who may replace any such personnel) to be reasonably available during normal business hours to, and cooperate with, the Sellers, and to respond to the Sellers’ requests for information in a written statement delivered to Seller and Buyer and shall be final, binding, conclusive and nonappealable. The term "FINAL CLOSING STATEMENT" shall mean the definitive Closing Statement agreed to by Seller and Buyer in accordance with Section 1.4(b) or the definitive Closing Statement resulting from the determination made by the Neutral Auditor in accordance with this Section 1.4(c) (in addition to those items theretofore agreed to by Seller and Buyer)timely manner.
Appears in 1 contract
Purchase Price Adjustment. (a) As soon as practicable but not later than Within 60 days following after the Closing Date, Seller Buyer shall prepare and deliver to Buyer MagneTek a working capital statement balance sheet of the Company Columbus Business as of the close of business on the Closing Date comprising the Assets and the outstanding Assumed Liabilities (the "CLOSING STATEMENTClosing Balance Sheet"). For purposes of preparing the Closing Balance Sheet, MagneTek shall make its accounting personnel available to Buyer (without charge) and such employees shall, for the purpose of assisting Buyer in preparing the Closing Balance Sheet, be instructed by MagneTek to act at Buyer's direction. During the 30 days immediately following MagneTek's receipt of the Closing Balance Sheet, MagneTek shall be entitled to review the Closing Balance Sheet and Buyer's working papers relating to the Closing Balance Sheet, and Buyer shall provide MagneTek access at all reasonable times to its personnel, properties, books and records to the extent relevant. The Closing Balance Sheet shall become final and binding upon the parties on the 30th day following delivery thereof unless MagneTek gives written notice to Buyer of its disagreement with the Closing Balance Sheet (a "Notice of Disagreement") setting forth prior to such date. Any Notice of Disagreement shall specify in reasonable detail the current assets minus nature of any disagreement so asserted. If a timely Notice of Disagreement is received by Buyer with respect to the current liabilities Closing Balance Sheet, then the Closing Balance Sheet (as revised in accordance with clause (x) or (y) below), shall become final and binding upon the parties on the earlier of (x) the date the parties hereto resolve in writing any differences they have with respect to any matter specified in a Notice of Disagreement or (y) the date any matters properly in dispute are finally resolved in writing by the Accounting Firm (as defined below). During the 30 days immediately following the delivery of any Notice of Disagreement, MagneTek and Buyer shall seek in good faith to resolve in writing any differences which they may have with respect to any matter specified in such Notice of Disagreement. During such period, Buyer and MagneTek shall each have access to the other party's working papers prepared in connection with the other party's preparation of the Company Closing Balance Sheet or a Notice of Disagreement. At the end of such 30-day period, MagneTek and Buyer shall submit to an independent accounting firm (the "WORKING CAPITALAccounting Firm") for review and resolution any and all matters which remain in dispute and which were properly included in any Notice of Disagreement, and the Accounting Firm shall reach a final, binding resolution of all matters which remain in dispute. The Closing Balance Sheet, with such adjustments necessary to reflect the Accounting Firm's resolution of the matters in dispute, shall become final and binding on Buyer and MagneTek on the basis described date the Accounting Firm delivers its final resolution to the parties. The Accounting Firm shall be Xxxxxx Xxxxxxxx, or if such firm is unable or unwilling to act, such other nationally recognized independent public accounting firm with offices in Annex BColumbus, accompanied Ohio, as shall be agreed upon by the parties hereto in writing. The cost of any arbitration (including the fees and expenses of the Accounting Firm) pursuant to this Section 2.5 shall be borne 50% by Buyer and 50% by MagneTek.
(b) The Closing Balance Sheet shall be prepared in accordance with GAAP, applied in a report manner consistent with that followed in the preparation of the December Balance Sheet, subject to the following:
(i) the Closing Balance Sheet shall not reflect any provision for Taxes (whether as an asset or a liability);
(ii) intercompany advances shall be eliminated;
(iii) inventory shall be valued on a first-in first-out basis; and
(iv) all Excluded Assets (and all related depreciation and reserves) shall be eliminated and all Excluded Liabilities (and related reserves) shall be eliminated.
(c) The Purchase Price shall be adjusted (after giving effect to the estimation, if any, reflected in the Closing Date Amount) such that the Purchase Price is (i) increased, to the extent that the aggregate net book value of the Columbus Business increases from Arthur Andersen LLPthe amount reflected on the December Balance Sheet, and (ii) decreased, to the extent that such aggregate net book value decreases. The Purchase Price shall be adjusted upward or downward, dollar for dollar, in respect of any such negative or positive adjustment; PROVIDED, HOWEVER, that no adjustment to the Purchase Price pursuant to this Section 2.5 shall be made unless such adjustment would exceed $100,000, and if the transactions contemplaxxx xx Xxxxxxx 4.11(a) or (b) occuradjustment would exceed $100,000, then the Closing Statement will full amount of the adjustment shall be prepared as if made; PROVIDED, FURTHER, HOWEVER, that the Com pany did not own the Dermablend Business or the National Cosmetics Business and the Iman Business as of estimated adjustment paid on the Closing Date, as the case may be; PROVIDED FURTHER that if Buyer retains the Dermablend Business and, pursuant to Section 4.11(b), sells the National Cosmetics Business and the Iman Business, the Dermablend Business will also include the net accounts receivable (other than the Designated Receivables (as defined in Section 4.11)), bank overdraft, accounts payable and accrued expenses related to the National Cosmetics Business and the Iman Business. Seller and its authorized representatives shall have reasonable access to all relevant books and records and employees of the Company following the Closing Date to the extent required to complete preparation of the Closing Statement, including, without limitation, preparation of any financial reports or schedules needed to complete the Closing Statement. Seller and Buyer shall split equally the cost of preparing and delivering the Closing Statement.
(b) After receipt of the Closing Statement, Buyer shall have 15 days to review it. Buyer and its authorized representatives shall have reasonable access to Seller's accountants to the extent required to complete their review of the Closing Statement, including, without limitation, the accountants' work papers used in preparation thereof. Unless Buyer delivers written notice to Seller on or prior to the 15th day after receipt of the Closing Statement specifying in reasonable detail its objections to the Closing Statement on the grounds that the Closing Statement (i) was not prepared in accordance with this Section 1.4 or (ii) contained arithmetic errors, the parties shall be deemed to have accepted and agreed to the Closing Statement. If Buyer so notifies Seller of such an objection to the Closing Statement, the parties shall within 15 days following the date of such notice (the "RESOLUTION PERIOD") attempt to resolve their differences.
(c) At the conclusion of the Resolution Period, any amounts remaining in dispute shall, at the election of either party, be submitted to Price Waterhouse (the "NEUTRAL AUDITOR"). The Neutral Auditor shall be engaged within five days after an election by either party to submit its objections to the Neutral Auditor, and each party agrees to execute, if requested by the Neutral Auditor, a reasonable engagement letter. All fees and expenses of the Neutral Auditor shall be borne equally by Seller and Buyer. The Neutral Auditor shall act as an arbitrator to determine, based solely on the written presentations by Seller and Buyer made within 15 days of the Neutral Auditor's engagement or such other reasonable period of time to which the parties agree, and not by independent review, only those issues still in dispute. The Neutral Auditor's determination shall be made within 30 days after Seller's and Buyer's written presentations have been madeany, shall be set forth taken into account in a written statement delivered determining whether such threshold is met. Any required adjustment to Seller and Buyer and the Purchase Price pursuant to this Section 2.5 shall be finalreferred to as the "Purchase Price Adjustment."
(d) Buyer agrees, bindingwith respect to Purchase Price Adjustments, conclusive that following the Closing, Buyer will not take any actions with respect to the accounting books, records, policies and nonappealable. The term "FINAL CLOSING STATEMENT" shall mean procedures of the definitive Columbus Business on which the Closing Statement agreed Balance Sheet is to by Seller and Buyer be based that are not consistent with GAAP applied in accordance the manner consistent with Section 1.4(b) or the definitive Closing Statement resulting from past practices of the determination made by the Neutral Auditor in accordance with this Section 1.4(c) (in addition to those items theretofore agreed to by Seller and Buyer)Columbus Business.
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Purchase Price Adjustment. (a) As soon as practicable but not later than 60 days following Within ten (10) Business Days after the Closing Date, Seller shall will prepare and deliver to Buyer a working capital statement its calculation (“Seller’s Inventory Valuation”), of the Company amount (the “Inventory Value”) equal to (i) the number of Sterling Ounces included in the Purchased Assets multiplied by 0.927 (to arrive at the number of Silver Ounces) and (ii) further multiplied by the price per Silver Ounce as recorded at closing of the close of business London Fix Market on the Closing Date (the "CLOSING STATEMENT") setting forth the current assets minus the current liabilities last trading day of the Company (the "WORKING CAPITAL") on the basis described in Annex B, accompanied by a report from Arthur Andersen LLP; PROVIDED, HOWEVER, if the transactions contemplaxxx xx Xxxxxxx 4.11(a) or (b) occur, the Closing Statement will be prepared as if the Com pany did not own the Dermablend Business or the National Cosmetics Business and the Iman Business as of such market prior to the Closing Date, as the case may be; PROVIDED FURTHER that if Buyer retains the Dermablend Business and, pursuant to Section 4.11(b), sells the National Cosmetics Business and the Iman Business, the Dermablend Business will also include the net accounts receivable (other than the Designated Receivables (as defined in Section 4.11)), bank overdraft, accounts payable and accrued expenses related to the National Cosmetics Business and the Iman Business. Seller and its authorized representatives shall have reasonable access to all relevant books and records and employees of the Company following the Closing Date to the extent required to complete preparation of the Closing Statement, including, without limitation, preparation of any financial reports or schedules needed to complete the Closing Statement. Seller and Buyer shall split equally the cost of preparing and delivering the Closing Statement.
(b) After receipt of Within ten (10) Business Days after the Closing StatementDate, Buyer shall perform a physical inventory of the Purchased Assets. Seller shall have 15 days the right to review itbe present for such physical inventory. Buyer shall then, within ten (10) Business Days after the Closing Date, prepare and deliver to Seller its authorized representatives shall have reasonable access to Seller's accountants to the extent required to complete their review calculation (“Buyer’s Inventory Valuation”), of the Closing Statement, including, without limitation, the accountants' work papers used in preparation thereof. Unless Buyer delivers written notice to Seller on or prior to the 15th day after receipt of the Closing Statement specifying in reasonable detail its objections to the Closing Statement on the grounds that the Closing Statement (i) was not prepared in accordance with this Section 1.4 or (ii) contained arithmetic errors, the parties shall be deemed to have accepted and agreed to the Closing Statement. If Buyer so notifies Seller of such an objection to the Closing Statement, the parties shall within 15 days following the date of such notice (the "RESOLUTION PERIOD") attempt to resolve their differencesInventory Value.
(c) At On or prior to the conclusion fifteenth (15th) Business Day after Buyer’s delivery of Buyer’s Inventory Valuation, Seller may give Buyer a written notice stating Seller’s objections (an “Objection Notice”) to Buyer’s Inventory Valuation. Any Objection Notice shall specify in reasonable detail the dollar amount of any objection and the basis therefor. If Seller does not give Buyer an Objection Notice within such 15 Business Day period, then Buyer’s Inventory Valuation will be conclusive and binding upon the parties for purposes of calculating the Final Purchase Price under this Agreement.
(d) Following Buyer’s receipt of any Objection Notice, Buyer and Seller shall attempt to negotiate in good faith to resolve such dispute. In the event that Buyer and Seller fail to agree on any of Seller’s proposed adjustments set forth in the Objection Notice within thirty (30) days after Buyer receives the Objection Notice, Buyer and Seller agree that WithumSmith + Xxxxx (the “Independent Auditors”) shall, within the 30-day period immediately following referral of the Resolution PeriodObjection Notice to the Independent Auditors, any amounts remaining make the final determination of the Inventory Value in dispute shall, at accordance with the election terms of either party, be submitted this Agreement. Buyer and Seller each shall provide the Independent Auditors with their respective calculations of Seller’s Inventory Valuation and Buyer’s Inventory Valuation subject to Price Waterhouse (the "NEUTRAL AUDITOR")Objection Notice. The Neutral Auditor Independent Auditors shall make an independent determination of the Inventory Value that shall be engaged within five days after an election by either party to submit its objections to final and binding on Buyer and Seller and shall constitute the Neutral Auditor“Final Inventory Value” for purposes of calculating the Final Purchase Price hereunder. The fees, and each party agrees to execute, if requested by the Neutral Auditor, a reasonable engagement letter. All fees costs and expenses of the Neutral Auditor Independent Auditors shall be borne equally by Seller and Buyer. The Neutral Auditor shall act as an arbitrator to determine, based solely on the written presentations by Seller one hand, and Buyer made within 15 Seller, on the other hand.
(e) Within ten (10) days following the determination of the Neutral Auditor's engagement or such other reasonable period of time to which the parties agree, and not by independent review, only those issues still in dispute. The Neutral Auditor's determination shall be made within 30 days after Seller's and Buyer's written presentations have been made, shall be set forth in a written statement delivered to Seller and Buyer and shall be final, binding, conclusive and nonappealable. The term "FINAL CLOSING STATEMENT" shall mean the definitive Closing Statement agreed to by Seller and Buyer Final Inventory Value in accordance with Section 1.4(b) 2.4, the parties or the definitive Closing Statement resulting from Independent Auditors (if applicable) shall calculate the determination made Final Purchase Price as follows: (i) if the Final Inventory Value exceeds the sum of Four Million Five Hundred Xxx Xxxxxxxx Xxx Xxxxxxx Xxxxxx-Xxxx Xxxxxx Xxxxxx Dollars ($4,510,129) (the “Target Inventory Value”), the Final Purchase Price shall equal the Purchase Price plus the amount of such excess or (ii) if the Target Inventory Value exceeds the Final Inventory Value, the Final Purchase Price shall equal the Purchase Price reduced by the Neutral Auditor in accordance with this Section 1.4(c) (in addition to those items theretofore agreed to by Seller and Buyer)amount of such excess.
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Purchase Price Adjustment. (a) As soon as practicable but not Not later than 60 days the ninetieth (90th) day following the Closing DateClosing, Seller Buyer shall prepare and deliver to Buyer the Sellers’ Representative, a working capital statement schedule (the “Closing Date Schedule”) setting forth:
(i) a calculation of the Closing Net Working Capital (the “Final Net Working Capital”) along with reasonable, written supporting documentation;
(ii) an itemized list of the Closing Indebtedness (“Final Closing Date Indebtedness”);
(iii) an itemized list of the Company Transaction Expenses (“Final Closing Date Transaction Expenses”); and
(iv) the amount of actual Cash on Hand (“Final Cash on Hand”). The amounts in Sections 3.4(a)(ii)-(iv) are referred to herein as the “Other Post-Closing Amounts.”
(b) If the Sellers’ Representative disagrees with the Final Net Working Capital or any of the close of business Other Post-Closing Amounts as reflected on the Closing Date Schedule, Sellers’ Representative shall notify Buyer in writing within fifteen (15) days after the "CLOSING STATEMENT"date on which Buyer delivers such Closing Date Schedule to the Sellers’ Representative, which shall include the items as to which Sellers’ Representative disagrees and Sellers’ Representative’s calculation of such disputed amounts with reasonable supporting detail. Buyer and the Sellers’ Representative shall reasonably cooperate to resolve any such disagreements. If Buyer and the Sellers’ Representative are unable to resolve all such disagreements on or before the date which is fifteen (15) days following notification by the Sellers’ Representative of any such disagreements, the Sellers’ Representative and Buyer shall retain a nationally recognized independent public accounting firm upon whom the Sellers’ Representative and Buyer shall mutually agree, or if no such other accounting firm is willing to serve as the Final Accounting Firm, then such other qualified Person upon whom the Sellers’ Representative and Buyer shall mutually agree (such accounting firm or other Person being referred to as the “Final Accounting Firm”), to resolve all such disagreements, who shall adjudicate only those items still in dispute with respect to the Closing Date Schedule and the calculation of the Final Net Working Capital and/or any of the Other Post-Closing Amounts. The determination by the Final Accounting Firm shall be binding and conclusive on both the Seller Parties and Buyer.
(c) The Final Accounting Firm shall offer the Sellers’ Representative and Buyer the opportunity to provide written submissions regarding their positions on the disputed matters, which written submissions shall be provided to the Final Accounting Firm, if at all, no later than ten (10) days after the date of referral of the disputed matters to the Final Accounting Firm. The determination of the Final Accounting Firm shall be based solely on the provisions of this Agreement and such written submissions by the Sellers’ Representative and Buyer and their respective Representatives and shall not be by independent investigation or review. The Final Accounting Firm shall deliver a written report resolving only the disputed matters and setting forth the current assets minus basis for such resolution within twenty (20) days after the current liabilities Sellers’ Representative and Buyer submit in writing (or have had the opportunity to submit in writing but have not submitted) their positions as to the disputed items. In preparing its report, the Final Accounting Firm shall not assign a value to Final Net Working Capital and/or any of the Company (Other Post-Closing Amounts which is greater or less than the "WORKING CAPITAL") values submitted by the Sellers’ Representative, on the basis described in Annex Bone hand, accompanied by a report from Arthur Andersen LLP; PROVIDEDor Buyer, HOWEVERon the other hand. The determination of the Final Accounting Firm with respect to the correctness of Final Net Working Capital and/or any of the Other Post-Closing Amounts shall be final and binding on the Parties. The reasonable fees, if costs and disbursements of the transactions contemplaxxx xx Xxxxxxx 4.11(a) or (b) occurFinal Accounting Firm, the Closing Statement will be prepared as if the Com pany did not own the Dermablend Business or the National Cosmetics Business and the Iman Business as fees, costs and disbursements of the Closing Date, as the case may be; PROVIDED FURTHER that if Buyer retains the Dermablend Business and, pursuant to Section 4.11(b), sells the National Cosmetics Business and the Iman Business, the Dermablend Business will also include the net accounts receivable (other than the Designated Receivables (as defined in Section 4.11)), bank overdraft, accounts payable and accrued expenses related to the National Cosmetics Business and the Iman Business. Seller and its authorized representatives shall have reasonable access to all relevant books and records and employees of the Company following the Closing Date to the extent required to complete preparation of the Closing Statementprevailing party, including, without limitation, preparation reasonable attorney fees and expenses, shall be paid in full by the non-prevailing party. The Final Accounting Firm shall conduct its determination activities in a manner wherein all materials submitted to it are held in confidence and shall not be disclosed to third parties (except in connection with the enforcement of its rights, as required by Law or to prepare its financial statements or Tax Returns). The Parties agree that judgment may be entered upon the determination of the Final Accounting Firm in any financial reports or schedules needed court having jurisdiction over the Party against which such determination is to complete the Closing Statement. Seller and Buyer shall split equally the cost of preparing and delivering the Closing Statementbe enforced.
(bd) After receipt of the Closing Statement, Buyer The Sellers’ Representative shall have 15 days be entitled to review it. Buyer and its authorized representatives shall have reasonable access to Seller's accountants the books of the Company and its Subsidiaries, to the extent required to complete their review of prepared specifically in connection with the Final Net Working Capital, the Other Post-Closing Amounts and the Closing StatementDate Schedule and, including, without limitation, the accountants' work papers used in preparation thereof. Unless Buyer delivers written notice to Seller on or upon reasonable prior to the 15th day after receipt of the Closing Statement specifying in reasonable detail its objections to the Closing Statement on the grounds that the Closing Statement (i) was not prepared in accordance with this Section 1.4 or (ii) contained arithmetic errors, the parties shall be deemed to have accepted and agreed to the Closing Statement. If Buyer so notifies Seller of such an objection to the Closing Statement, the parties shall within 15 days following the date of such notice (the "RESOLUTION PERIOD") attempt to resolve their differences.
(c) At the conclusion of the Resolution Period, any amounts remaining in dispute shall, at the election of either party, be submitted to Price Waterhouse (the "NEUTRAL AUDITOR"). The Neutral Auditor shall be engaged within five days after an election by either party to submit its objections to the Neutral Auditor, and each party agrees to execute, if requested by the Neutral Auditor, a reasonable engagement letter. All fees and expenses of the Neutral Auditor shall be borne equally by Seller and Buyer. The Neutral Auditor shall act as an arbitrator to determine, based solely on the written presentations by Seller and Buyer made within 15 days of the Neutral Auditor's engagement or such other reasonable period of time to which the parties agree, and not by independent review, only those issues still in dispute. The Neutral Auditor's determination shall be made within 30 days after Seller's and Buyer's written presentations have been madenotice, shall be set forth in a written statement delivered entitled to Seller discuss such books and Buyer records and shall be final, binding, conclusive work papers with the Company and nonappealable. The term "FINAL CLOSING STATEMENT" shall mean its Subsidiaries and those employees of the definitive Closing Statement agreed to by Seller and Buyer in accordance with Section 1.4(b) or foregoing responsible for the definitive Closing Statement resulting from the determination made by the Neutral Auditor in accordance with this Section 1.4(c) (in addition to those items theretofore agreed to by Seller and Buyer)preparation thereof.
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Purchase Price Adjustment. (a) As soon as practicable but not later Not less than 60 days following five (5) Business Days prior to the anticipated Closing Date, Seller shall prepare in good faith and deliver to Buyer Purchaser a working capital written statement (the “Estimated Closing Statement”) setting forth Seller’s good faith estimate of (i) Closing Cash (“Estimated Cash”), (ii) Closing Working Capital (“Estimated Working Capital”), (iii) Closing Indebtedness (“Estimated Closing Indebtedness”), (iv) Transaction Expenses (“Estimated Transaction Expenses”) and (v) the Initial Closing Date Amount, in each case, together with such schedules and data with respect to the determination thereof as may be reasonably appropriate to support the calculations set forth in the Estimated Closing Statement. Upon the delivery of the Estimated Closing Statement until the Closing, Seller shall provide Purchaser and its representatives with reasonable access to the Business Records and relevant personnel and properties of the Company as and its subsidiaries to permit Purchaser to the extent reasonably required to review the Estimated Closing Statement and Seller’s estimate of Estimated Closing Cash, Estimated Closing Working Capital, Estimated Closing Indebtedness and Estimated Transaction Expenses and the close of business on the Initial Closing Date (Amount set forth therein; provided, however, that such access and cooperation shall be in a manner that does not materially interfere with the "CLOSING STATEMENT") setting forth the current assets minus the current liabilities normal business operations of the Company (the "WORKING CAPITAL") on the basis described in Annex B, accompanied by a report from Arthur Andersen LLP; PROVIDED, HOWEVER, if the transactions contemplaxxx xx Xxxxxxx 4.11(a) or (b) occur, the and its subsidiaries. The Estimated Closing Statement will shall be prepared as if in accordance with the Com pany did not own the Dermablend Business or the National Cosmetics Business Accounting Principles and the Iman Business as of the Closing Date, as the case may be; PROVIDED FURTHER that if Buyer retains the Dermablend Business and, pursuant to Section 4.11(b), sells the National Cosmetics Business and the Iman Business, the Dermablend Business will also include the net accounts receivable (other than the Designated Receivables (as defined definitions in Section 4.11)), bank overdraft, accounts payable and accrued expenses related this Agreement. Seller shall consider in good faith Purchaser’s reasonable comments to the National Cosmetics Business and the Iman Business. Seller and its authorized representatives shall have reasonable access to all relevant books and records and employees of the Company following the Closing Date to the extent required to complete preparation of the Closing Statement, including, without limitation, preparation of any financial reports or schedules needed to complete the Closing Statement. Seller and Buyer shall split equally the cost of preparing and delivering the Estimated Closing Statement.
(b) After receipt As promptly as practicable, and in any event within seventy-five (75) calendar days after the Closing Date, Purchaser shall prepare and deliver to Seller a statement (the “Closing Statement”) setting forth Purchaser’s good faith calculation of Closing Cash, Closing Working Capital, Closing Indebtedness, Transaction Expenses and the Final Closing Date Amount assuming the amounts set forth in the Closing Statement were final, together with such schedules and data with respect to the determination thereof as may be reasonably appropriate to support the calculations set forth in the Closing Statement, Buyer . The Closing Statement shall have 15 days to review itbe prepared in accordance with the Accounting Principles and the definitions set forth in this Agreement. Buyer and its authorized representatives shall have reasonable access to Seller's accountants to The parties agree that the extent required to complete their review purpose of preparing the Closing StatementStatement and determining Closing Cash, includingClosing Working Capital, without limitationClosing Indebtedness and Transaction Expenses and the related adjustments contemplated by this Section 1.04(b) is to measure the amount of Closing Cash, Closing Working Capital, Closing Indebtedness and Transaction Expenses in accordance with the accountants' work papers used in preparation thereofterms of this Agreement and the Accounting Principles. Unless Buyer delivers written notice to Seller on or prior to Following the 15th day after receipt delivery of the Closing Statement specifying in until the Review End Date, Purchaser shall provide Seller and its representatives with reasonable detail access to the Business Records and relevant personnel and properties of the Company and its objections subsidiaries to permit Seller to the extent reasonably required to review the Closing Statement and Purchaser’s calculation of Closing Cash, Closing Working Capital, Closing Indebtedness and Transaction Expenses and the Final Closing Date Amount set forth therein provided, however, that such access and cooperation shall be in a manner that does not materially interfere with the normal business operations of the Company and its subsidiaries. The Closing Statement shall become final and binding upon the parties on the grounds that forty-fifth (45th) calendar day following receipt thereof by Seller (the “Review End Date”) unless Seller gives written notice of its disagreement with the Closing Statement (ia “Notice of Disagreement”) was not prepared to Purchaser prior to such date. Any Notice of Disagreement shall specify in accordance with this Section 1.4 or (ii) contained arithmetic errors, reasonable detail the parties nature of any disagreement so asserted. Seller shall be deemed to have accepted agreed with, and agreed not objected to, all items set forth in the Closing Statement to the Closing Statementextent not specifically disputed in the Notice of Disagreement. If Buyer so notifies a timely Notice of Disagreement is received by Purchaser, then the Closing Statement (as revised in accordance with this sentence) shall become final and binding upon the parties on the earlier of (i) the date on which Purchaser and Seller resolve in writing any differences they have with respect to the matters specified in the Notice of Disagreement and (ii) the date on which all such disputed matters are finally resolved in writing by the Independent Expert pursuant to the procedures set forth in this Section 1.04. During the thirty (30) calendar day period following the delivery of a Notice of Disagreement, Purchaser and Seller shall seek in good faith to resolve in writing any differences that they may have with respect to the matters specified in the Notice of Disagreement. At the end of such an objection thirty (30) calendar day period, Purchaser and Seller shall submit to the Closing Statement, Independent Expert for review any and all matters that remain in dispute and were included in the Notice of Disagreement. The parties shall within 15 instruct the Independent Expert to render its decision as to the disputed items and the effect of its decision on the Closing Statement as promptly as practicable but in no event later than 45 calendar days after the date of such submission. Each party shall furnish to each other and to the Independent Expert such working papers and other relevant documents and information relating to the disputed items as may reasonably be required by the Independent Expert to make its determination in no event more than fifteen (15) calendar days following the date on which the disagreement is referred to the Independent Expert, and shall provide interviews and answer questions as the Independent Expert may reasonably request in connection with its determination of such notice (disputed items. In the "RESOLUTION PERIOD") attempt event any party shall participate in teleconferences or meetings with, or make presentations to, the Independent Expert, the other party shall be entitled to resolve their differencesparticipate in such teleconferences, meetings or presentations. The terms of appointment and engagement of the Independent Expert shall be as agreed upon between the parties in writing.
(c) At In resolving any such disputed item, the conclusion Independent Expert (i) shall act in the capacity of an expert and not as an arbitrator, (ii) shall limit its review to matters specifically set forth in the Notice of Disagreement as to a disputed item (other than matters thereafter resolved by mutual written agreement of the Resolution Periodparties), (iii) shall make its determination based solely on supporting material provided by the parties pursuant to Section 1.04(b) and not pursuant to any amounts remaining in dispute shall, at independent review and (iv) shall not assign a value to any disputed item greater than the election of either party, be submitted to Price Waterhouse (the "NEUTRAL AUDITOR"). The Neutral Auditor shall be engaged within five days after an election greatest value for such item claimed by either party or less than the smallest value for such item claimed by either party in the Closing Statement or in the Notice of Disagreement. The Independent Expert is not authorized to, and shall not, make any other determination, including (A) any determination with respect to submit its objections any matter included in the Closing Statement or the Notice of Disagreement that was not submitted for resolution to the Neutral AuditorIndependent Expert, (B) any determination as to the accuracy of the representations and each warranties set forth in Section 3.06 or any other representation or warranty in this Agreement or (C) any determination as to compliance by any party agrees with any of its respective covenants in this Agreement. Any dispute not within the scope of disputes to execute, if requested be resolved by the Neutral AuditorIndependent Expert pursuant to this Section 1.04 shall be resolved as otherwise provided in this Agreement.
(d) The final determination by the Independent Expert of the matters submitted to it pursuant to Section 1.04(b) shall (i) be in writing, (ii) include the Independent Expert’s calculation of the Final Closing Date Amount, (iii) include the Independent Expert’s determination of each matter submitted to it pursuant to Section 1.04(b) and (iv) include a reasonable engagement letterbrief summary of the Independent Expert’s reasons for its determination of each issue.
(e) The resolution of disputed items by the Independent Expert shall be final and binding and an order may be entered in respect thereof by a court having jurisdiction over the party against which such determination is to be enforced. All The fees and expenses of the Neutral Auditor Independent Expert incurred pursuant to this Section 1.04 shall be borne equally by Purchaser, on the one hand, and Seller, on the other hand, based upon the percentage that the portion of the contested amount not awarded to each party bears to the amount actually contested by such party, as determined by the Independent Expert.
(f) Within five Business Days after the Closing Statement becomes final and binding upon the parties pursuant to Section 1.04(b) or Section 1.04(e), as applicable:
(i) If the Final Closing Date Amount is less than the Initial Closing Date Amount (the “Net Negative Purchase Price Adjustment Amount”), then Purchaser shall be entitled to receive a payment in cash out of the Adjustment Escrow Account in an amount equal to the Net Negative Purchase Price Adjustment Amount, and Purchaser and Seller shall deliver a Joint Direction instructing the Escrow Agent to make a payment to Purchaser in an amount equal to the lesser of the Net Negative Purchase Price Adjustment Amount and Buyerthe amount in the Adjustment Escrow Account. The Neutral Auditor If the amount in the Adjustment Escrow Account exceeds the Net Negative Purchase Price Adjustment Amount, then Purchaser and Seller shall act deliver a Joint Direction instructing the Escrow Agent to make a payment equal to such excess to Seller out of the Adjustment Escrow Account. If the Net Negative Purchase Price Adjustment Amount exceeds the amount in the Adjustment Escrow Account, then Seller shall pay, or cause to be paid, to Purchaser the amount of such excess by wire transfer of immediately available funds to the bank account designated in writing by Purchaser.
(ii) If the Final Closing Date Amount exceeds the Initial Closing Date Amount, Purchaser shall pay, or cause to be paid, to Seller the amount of such excess by wire transfer of immediately available funds to the bank account designated in writing by Seller. In addition, Seller will be entitled to receive the remaining balance of the Adjustment Escrow Account, and Purchaser and Seller shall deliver a Joint Direction instructing the Escrow Agent to make payment equal to such remaining balance to Seller out of the Adjustment Escrow Account.
(g) Any payment made under this Section 1.04 shall be treated as an arbitrator adjustment to determinethe Purchase Price for U.S. federal and applicable state and local Tax purposes, based solely on the written presentations unless otherwise required by Seller and Buyer made within 15 days of the Neutral Auditor's engagement or such other reasonable period of time to which the parties agree, and not by independent review, only those issues still in dispute. The Neutral Auditor's determination shall be made within 30 days after Seller's and Buyer's written presentations have been made, shall be set forth in a written statement delivered to Seller and Buyer and shall be final, binding, conclusive and nonappealable. The term "FINAL CLOSING STATEMENT" shall mean the definitive Closing Statement agreed to by Seller and Buyer in accordance with Section 1.4(b) or the definitive Closing Statement resulting from the determination made by the Neutral Auditor in accordance with this Section 1.4(c) (in addition to those items theretofore agreed to by Seller and Buyer)Law.
Appears in 1 contract
Samples: Equity Purchase Agreement (Select Interior Concepts, Inc.)
Purchase Price Adjustment. (a) As soon as practicable but not later than 60 within forty-five (45) days following after the Closing Date, Seller the Sellers, at their expense, shall cause Xxxxx X. Xxxxxxxx, P.C., an independent certified public accountant, to prepare and deliver to Buyer a working capital statement balance sheet of the Company as of immediately prior to the close of business on the Closing Date Effective Time (the "CLOSING STATEMENTEffective Time Balance Sheet") setting forth the current assets minus the current liabilities tangible net worth of the Company using accrual accounting and in conformance with generally accepted accounting principles (the "WORKING CAPITALTangible Net Worth"). A copy of the Effective Time Balance Sheet shall be promptly furnished to the Buyer. If the Buyer disagrees with the Tangible Net Worth, the Buyer shall engage an independent public accounting firm, at its expense, to audit the Effective Time Balance Sheet and deliver a certified written report to the Sellers confirming the Tangible Net Worth ("Audited Tangible Net Worth"). If the Sellers fail to notify the Buyer within fifteen (15) on days after receiving the basis described in Annex B, accompanied by a report from Arthur Andersen LLP; PROVIDEDthe accounting firm selected by the Buyer, HOWEVER, if the transactions contemplaxxx xx Xxxxxxx 4.11(a) or (b) occur, the Closing Statement will be prepared as if the Com pany did not own the Dermablend Business or the National Cosmetics Business and the Iman Business as of the Closing Date, as the case may be; PROVIDED FURTHER that if Buyer retains the Dermablend Business and, pursuant to Section 4.11(b), sells the National Cosmetics Business and the Iman Business, the Dermablend Business will also include the net accounts receivable (other than the Designated Receivables (as defined in Section 4.11)), bank overdraft, accounts payable and accrued expenses related to the National Cosmetics Business and the Iman Business. Seller and its authorized representatives shall have reasonable access to all relevant books and records and employees of the Company following the Closing Date to the extent required to complete preparation of the Closing Statement, including, without limitation, preparation of any financial reports or schedules needed to complete the Closing Statement. Seller and Buyer shall split equally the cost of preparing and delivering the Closing Statement.
(b) After receipt of the Closing Statement, Buyer shall have 15 days to review it. Buyer and its authorized representatives shall have reasonable access to Seller's accountants to the extent required to complete their review of the Closing Statement, including, without limitation, the accountants' work papers used in preparation thereof. Unless Buyer delivers written notice to Seller on or prior to the 15th day after receipt of the Closing Statement specifying in reasonable detail its objections to the Closing Statement on the grounds that the Closing Statement (i) was not prepared in accordance with this Section 1.4 or (ii) contained arithmetic errors, the parties such report shall be deemed to have accepted and agreed for purposes of calculating Tangible Net Worth. If the Sellers should so notify the Buyer of a dispute concerning Audited Tangible Net Worth, the Buyer shall then engage another big-five independent accounting firm that is mutually acceptable to the Closing Statement. If Buyer, on one hand, and the Sellers, on the other hand, to resolve such dispute and such firm shall notify the Buyer so notifies Seller and the Sellers of its resolution of such an objection to dispute within two weeks of its engagement by the Closing Statement, the parties shall within 15 days following the date of such notice (the "RESOLUTION PERIOD") attempt to resolve their differences.
(c) At the conclusion of the Resolution Period, any amounts remaining in dispute shall, at the election of either party, be submitted to Price Waterhouse (the "NEUTRAL AUDITOR")Buyer. The Neutral Auditor shall be engaged within cost of services provided by such big-five days after an election by either party to submit its objections to the Neutral Auditor, and each party agrees to execute, if requested by the Neutral Auditor, a reasonable engagement letter. All fees and expenses of the Neutral Auditor accounting firm shall be borne equally by Seller the Buyer and Buyerthe Sellers. The Neutral Auditor Any such resolution shall act as an arbitrator be final and binding on all parties hereto for the purposes of calculating Tangible Net Worth. In the event the Tangible Net Worth is less than $400,000, the Sellers shall pay such deficit portion to determine, based solely on the written presentations by Seller and Buyer made within 15 thirty (30) days following the later of its determination of the Neutral Auditor's engagement or such other reasonable period of time to which Tangible Net Worth, the parties agree, and not by independent review, only those issues still in dispute. The Neutral Auditor's determination shall be made within 30 days after Seller's and Buyer's written presentations have been made, shall be set forth in a written statement delivered to Seller and Buyer and shall be final, binding, conclusive and nonappealable. The term "FINAL CLOSING STATEMENT" shall mean the definitive Closing Statement agreed to by Seller and Buyer in accordance with Section 1.4(b) audit or the definitive Closing Statement resulting from resolution of any dispute by such big-five accounting firm on a dollar-for-dollar basis. In the determination made by event the Neutral Auditor in accordance with this Section 1.4(c) (in addition to those items theretofore agreed to by Seller and Buyer).Tangible Net Worth is greater than
Appears in 1 contract
Samples: Stock Purchase Agreement (Thermoview Industries Inc)
Purchase Price Adjustment. (a) As soon as practicable but not later than 60 Within forty-five (45) days following after the Closing Date, Seller Date Buyer shall prepare and deliver to Buyer a working capital statement of the Company as of the close of business on Seller the Closing Date Balance Sheet and Buyer’s calculation of Closing Date Working Capital (the "CLOSING STATEMENT") setting forth the current assets minus the current liabilities of the Company (the "WORKING CAPITAL") on the basis described in Annex B, accompanied by a report from Arthur Andersen LLP; PROVIDED, HOWEVER, if the transactions contemplaxxx xx Xxxxxxx 4.11(a) or (b) occursuch delivery, the “Post-Closing Statement will be prepared as if the Com pany did not own the Dermablend Business or the National Cosmetics Business and the Iman Business as of the Closing Date, as the case may be; PROVIDED FURTHER that if Buyer retains the Dermablend Business and, pursuant to Section 4.11(bDelivery”), sells the National Cosmetics Business and the Iman Business, the Dermablend Business will also include the net accounts receivable (other than the Designated Receivables (as defined in Section 4.11)), bank overdraft, accounts payable and accrued expenses related to the National Cosmetics Business and the Iman Business. Seller and its authorized representatives shall have reasonable access to all relevant books and records and employees of the Company following the Closing Date to the extent required to complete preparation of the Closing Statement, including, without limitation, preparation of any financial reports or schedules needed to complete the Closing Statement. Seller and Buyer shall split equally the cost of preparing and delivering the Closing Statement.
(b) After receipt of the Closing Statement, Buyer Seller shall have 15 thirty (30) days from the date Buyer makes the Post-Closing Delivery (such period, the “Dispute Period”) to notify Buyer, in writing, as to whether Seller agrees or disagrees with the Post-Closing Delivery (such written notice, the “Dispute Notice”). During the Dispute Period, Seller and its accountants shall be permitted to review it. (during regular business hours and upon reasonable prior notice) the working papers of Buyer and its authorized representatives shall have reasonable access to Seller's (where applicable) Buyer’s accountants relating to the extent required matters set forth in the Post-Closing Delivery.
(c) If Seller fails to complete their review of deliver a Dispute Notice to Buyer during the Closing StatementDispute Period, including, without limitation, the accountants' work papers used in preparation thereof. Unless Buyer delivers written notice to Seller on or prior to the 15th day after receipt of the Closing Statement specifying in reasonable detail its objections to the Closing Statement on the grounds that the Closing Statement (i) was not the Closing Date Balance Sheet as prepared in accordance with this Section 1.4 or by Buyer shall be deemed to have been correctly prepared, and (ii) contained arithmetic errorsBuyer’s calculation of Closing Date Working Capital shall be deemed to be final and correct and shall be binding upon each of the parties hereto.
(d) If Seller delivers a Dispute Notice to Buyer during the Dispute Period, Seller and Buyer shall, for a period of thirty (30) days from the date the Dispute Notice is delivered to Buyer (such period, the “Resolution Period”), use their respective Best Efforts to amicably resolve the items in dispute. Any items so resolved by the parties shall be deemed to have accepted be final and agreed to the Closing Statement. If Buyer correct as so notifies Seller resolved and shall be binding upon each of such an objection to the Closing Statement, the parties shall within 15 days following the date of such notice (the "RESOLUTION PERIOD") attempt to resolve their differenceshereto.
(ce) At If Seller and Buyer are unable to resolve all of the conclusion of items in dispute during the Resolution Period, any amounts then either Buyer or Seller may refer the items remaining in dispute shallto the Independent Accountants. Such referral shall be made in writing to the Independent Accountants, copies of which shall concurrently be delivered to the non-referring party hereto. The referring party shall furnish the Independent Accountants, at the election time of either partysuch referral, with the Post-Closing Delivery and the Dispute Notice. The parties shall also furnish the Independent Accountants with such other information and documents as the Independent Accountants may reasonably request in order for them to resolve the items in dispute. The parties hereto shall also, within ten (10) days of the date the items in dispute are referred to the Independent Accountants, provide the Independent Accountants with a written notice (a “Position Statement”) describing in reasonable detail their respective positions on the items in dispute (copies of which will concurrently be submitted delivered to Price Waterhouse (the "NEUTRAL AUDITOR"other party hereto). If any party fails to timely deliver its Position Statement to the Independent Accountants, the Independent Accountants shall resolve the items in dispute solely upon the basis of the information otherwise provided to them. The Neutral Auditor Independent Accountants shall resolve all disputed items in a written determination to be delivered to each of the parties hereto within forty-five (45) days after such matter is referred to them; provided, however, that any delay in delivering such determination shall not invalidate such determination or deprive the Independent Accountants of jurisdiction to resolve the items in dispute. In no event shall the Independent Accountants assign a value to Closing Date Working Capital that is greater than the highest or less than the lowest calculation of Closing Date Working Capital proposed by Buyer and Seller. The decision of the Independent Accountants as to the items in dispute shall be engaged within five days after an election by either party final and binding upon the parties hereto and shall not be subject to submit its objections to the Neutral Auditor, and each party agrees to execute, if requested by the Neutral Auditor, a reasonable engagement letterjudicial review. All The fees and expenses of the Neutral Auditor Independent Accountants incurred in the resolution of any items in dispute shall be borne equally determined by the Independent Accountants and set forth in its report and shall be allocated and paid by the party whose calculation of Closing Date Working Capital is furthest from the Independent Accountant’s determination of Closing Date Working Capital.
(f) Within five (5) Business Days after the final determination of the Closing Date Balance Sheet and the calculation of Closing Date Working Capital (whether through failure of Seller to timely deliver a Dispute Notice, agreement of the parties, or determination of the Independent Accountants):
(i) if the Estimated Working Capital is more than the Closing Date Working Capital by an amount greater than the Working Capital Escrow Amount, then Buyer and Seller shall execute and deliver to the Escrow Agent a joint direction which directs the Escrow Agent to disburse the entire Working Capital Escrow Amount to Buyer, and Seller and Parent Company, jointly and severally, shall pay Buyer the amount by which the difference between the Estimated Working Capital and the Closing Date Working Capital exceeds the Working Capital Escrow Amount;
(ii) if the Estimated Working Capital is more than the Closing Date Working Capital by an amount less than the Working Capital Escrow Amount, then Buyer and Seller shall execute and deliver to the Escrow Agent a joint direction which directs the Escrow Agent to disburse (A) from the Working Capital Escrow Amount to Buyer. The Neutral Auditor , an amount equal to the difference between the Estimated Working Capital and the Closing Date Working Capital, and (B) any remaining amount of the Working Capital Escrow Amount to Seller; or
(iii) if the Closing Date Working Capital is more than Estimated Working Capital, then Buyer shall act as an arbitrator to determine, based solely on pay Seller the written presentations by Seller excess and Buyer made within 15 days of and Seller shall execute and deliver to the Neutral Auditor's engagement or Escrow Agent a joint direction which directs the Escrow Agent to disburse the entire Working Capital Escrow Amount to Seller. All such other reasonable period of time to which the parties agree, and not by independent review, only those issues still in dispute. The Neutral Auditor's determination payments shall be made within 30 days after Seller's and by wire transfer of immediately available funds to an account or accounts designated in writing by Seller or Buyer's written presentations have been made, as appropriate, which designation shall be set forth in a written statement delivered to Seller and Buyer and shall be final, binding, conclusive and nonappealable. The term "FINAL CLOSING STATEMENT" shall mean the definitive Closing Statement agreed to by Seller and Buyer in accordance with Section 1.4(b) or the definitive Closing Statement resulting from the determination made by the Neutral Auditor in accordance with this Section 1.4(cparty receiving such payment no later than one (1) (in addition Business Day prior to those items theretofore agreed to by Seller and Buyer)the payment date.
Appears in 1 contract
Purchase Price Adjustment. (a) As soon as practicable but not Promptly (no later than 60 thirty (30) days after the Closing Date) following the Closing Date, the Seller shall prepare and deliver to Buyer the Parties a working capital statement balance sheet of the Company Seller as of the close end of business on the Closing Date (the "CLOSING STATEMENTClosing Date Balance Sheet") setting forth the current assets minus the current liabilities of the Company (the "WORKING CAPITAL") on the basis described in Annex B, accompanied by a report from Arthur Andersen LLP; PROVIDED, HOWEVER, if the transactions contemplaxxx xx Xxxxxxx 4.11(a) or (b) occur, the ). The Closing Statement will Date Balance Sheet shall be prepared as if on a consistent basis with the Com pany did not own the Dermablend Business or the National Cosmetics Business and the Iman Business as of the Closing Date, as the case may be; PROVIDED FURTHER that if Buyer retains the Dermablend Business and, pursuant to Section 4.11(b), sells the National Cosmetics Business and the Iman Business, the Dermablend Business will also include the net accounts receivable (other than the Designated Receivables (as defined in Section 4.11)), bank overdraft, accounts payable and accrued expenses related to the National Cosmetics Business and the Iman Business. Seller and its authorized representatives shall have reasonable access to all relevant books and records and employees of the Company following the Closing Date to the extent required to complete preparation of the Closing Statement, including, without limitation, preparation of any financial reports or schedules needed to complete the Closing Statement. Seller and Buyer shall split equally the cost of preparing and delivering the Closing StatementMost Recent Balance Sheet.
(b) After receipt If within thirty (30) days following delivery of the Closing StatementDate Balance Sheet, Buyer shall have 15 days to review it. Buyer and has not given Seller notice of its authorized representatives shall have reasonable access to Seller's accountants to the extent required to complete their review of the Closing Statement, including, without limitation, the accountants' work papers used in preparation thereof. Unless Buyer delivers written notice to Seller on or prior to the 15th day after receipt of the Closing Statement specifying in reasonable detail its objections to the Closing Statement on the grounds that the Closing Statement (i) was not prepared in accordance with this Section 1.4 or (ii) contained arithmetic errors, the parties shall be deemed to have accepted and agreed to the Closing Statement. If Buyer so notifies Seller of such an objection to the Closing Statement, the parties shall within 15 days following the date of Date Balance Sheet (such notice must contain a statement of the basis of Buyer's objection), then the Closing Date Balance Sheet shall be final and shall constitute the "Final Balance Sheet" under this Agreement. If Buyer gives such notice of objection, then the issues in dispute will be submitted to Deloitte & Touche LLP (New York, New York office) (unless Deloitte & Touche LLP are the auditors of Buyer or Seller, in which case the issues in the dispute will be submitted to KPMG Peat Marwick LLP (New York, New York office)) (the "RESOLUTION PERIODAccountants"), for resolution. If issues in dispute are submitted to the Accountants for resolution, (i) attempt each party will furnish to resolve their differencesthe Accountants such workpapers and other documents and information relating to the disputed issues as the Accountants may request and are available to that Party or its Affiliates (or its independent public accountants), and will be afforded the opportunity to present to the Accountants any material relating to the determination and to discuss the determination with the Accountants; (ii) the determination by the Accountants, as set forth in a notice delivered to both Parties by the Accountants within sixty (60) days of the date that the dispute is first submitted to the Accountants (or such later date as mutually agreed in writing by Buyer and Seller), will be binding and conclusive on the Parties and the resulting balance sheet prepared by the Accountants shall constitute the "Final Balance Sheet" under this Agreement; and (iii) Buyer and Seller will each bear 50% of the fees of the Accountants for such determination.
(c) At The Purchase Price shall be reduced by the conclusion amount by which the Seller's Net Worth as reflected on the Most Recent Balance Sheet exceeds the Seller's Net Worth as reflected on the Final Balance Sheet. The Purchase Price shall be increased by the amount by which the Seller's Net Worth as reflected on the Final Balance Sheet exceeds the Seller's Net Worth as reflected on the Most Recent Balance Sheet. For purposes of this Section 2.4(c), when calculating Seller's Net Worth as reflected on the Resolution PeriodFinal Balance Sheet, any amounts remaining all liabilities or obligations excluded from the definition of Assumed Liabilities pursuant to clauses (iv) through (x) of such definition shall be disregarded as liabilities, however liabilities and obligations for such matters shall not be disregarded when calculating Seller's Net Worth as reflected on the Most Recent Balance Sheet. Any adjustment to the Purchase Price under this Section 2.4 shall be promptly paid one-third (1/3) in dispute shall, cash and two-thirds (2/3) in Buyer Common Stock (valued at the election Average Closing Price but in no event valued at less than $17.50 per share), provided that if such adjustment is for an amount of either party, be submitted to Price Waterhouse (the "NEUTRAL AUDITOR"). The Neutral Auditor $1,000,000 or less such adjustment shall be engaged within five days after an election by either party to submit its objections to the Neutral Auditorpaid in cash only, and each party agrees to execute, if requested by the Neutral Auditor, a reasonable engagement letter. All fees and expenses of the Neutral Auditor in no event shall be borne equally by Seller and Buyer. The Neutral Auditor shall act as an arbitrator to determine, based solely on the written presentations by Seller and Buyer made within 15 days of the Neutral Auditor's engagement or such other reasonable period of time to which the parties agree, and not by independent review, only those issues still in dispute. The Neutral Auditor's determination shall payment be made within 30 days later than five (5) Business Days after Seller's and Buyer's written presentations have been made, shall be set forth in a written statement delivered to Seller and Buyer and shall be final, binding, conclusive and nonappealable. The term "FINAL CLOSING STATEMENT" shall mean the definitive Closing Statement agreed to by Seller and Buyer in accordance with date that the Final Balance Sheet is determined under Section 1.4(b2.4(b) or the definitive Closing Statement resulting from the determination made by the Neutral Auditor in accordance with of this Section 1.4(c) (in addition to those items theretofore agreed to by Seller and Buyer)Agreement.
Appears in 1 contract
Purchase Price Adjustment. (a) As soon as practicable but not later than 60 days following On February 28, 2001, the Closing DateSellers will provide the Buyer with a statement (the "Price Adjustment Statement"), Seller shall prepare and deliver to Buyer a working capital statement certified by an appropriate senior executive officer of the Company Parent, setting forth the actual amount of the Eligible Trade Accounts Receivable, Eligible Vendor Accounts Receivable and Inventory acquired by the Buyer as of the close Effective Time and a recalculation of business the Purchase Price Amount in accordance with the provisions of Section 4.2 and Annex 1 using the amounts set forth on the Closing Date (the "CLOSING STATEMENT") setting forth the current assets minus the current liabilities of the Company (the "WORKING CAPITAL") on the basis described in Annex B, accompanied by a report from Arthur Andersen LLP; PROVIDED, HOWEVER, if the transactions contemplaxxx xx Xxxxxxx 4.11(a) or (b) occur, the Closing Statement will be prepared as if the Com pany did not own the Dermablend Business or the National Cosmetics Business and the Iman Business as of the Closing Date, as the case may be; PROVIDED FURTHER that if Buyer retains the Dermablend Business and, pursuant to Section 4.11(b), sells the National Cosmetics Business and the Iman Business, the Dermablend Business will also include the net accounts receivable (other than the Designated Receivables (as defined in Section 4.11)), bank overdraft, accounts payable and accrued expenses related to the National Cosmetics Business and the Iman Business. Seller and its authorized representatives shall have reasonable access to all relevant books and records and employees of the Company following the Closing Date to the extent required to complete preparation of the Closing Statement, including, without limitation, preparation of any financial reports or schedules needed to complete the Closing Statement. Seller and Buyer shall split equally the cost of preparing and delivering the Closing Price Adjustment Statement.
(b) After receipt of The Sellers and the Closing Buyer will mutually prepare the Price Adjustment Statement, with the full participation and cooperation of each other. If the Sellers and the Buyer shall have 15 days are unable to review itagree on the Price Adjustment Statement by March 9, 2001, then all disagreements will be submitted for resolution to the Bankruptcy Court. The Price Adjustment Statement, either as agreed to by the Buyer and its authorized representatives shall have reasonable access to Seller's accountants the Sellers or as determined by the Bankruptcy Court pursuant to the extent required preceding sentence, will be final and binding and will be referred to complete their review of the Closing Statement, including, without limitation, the accountants' work papers used in preparation thereof. Unless Buyer delivers written notice to Seller on or prior to the 15th day after receipt of the Closing Statement specifying in reasonable detail its objections to the Closing Statement on the grounds that the Closing Statement (i) was not prepared in accordance with this Section 1.4 or (ii) contained arithmetic errors, the parties shall be deemed to have accepted and agreed to the Closing Statement. If Buyer so notifies Seller of such an objection to the Closing Statement, the parties shall within 15 days following the date of such notice (as the "RESOLUTION PERIODFinal Price Adjustment Statement.") attempt to resolve their differences.
(c) At If the conclusion Purchase Price Amount as recalculated on the Final Price Adjustment Statement is less than the Purchase Price Amount paid on the Closing Date, the Sellers will pay the difference to Buyer within two (2) business days. If the Purchase Price Amount as recalculated on the Final Price Adjustment Statement is greater than the Purchase Price Amount paid on the Closing Date, Buyer will pay the difference to the Sellers within two (2) business days.
(d) To the extent that Sellers are unable, after using commercially reasonable efforts, to adjust their payroll system to provide for any Transferred Employee accruing his or her last day of base compensation payable by Sellers on the Closing Date, Buyer will reimburse Sellers the full amount of all base compensation paid or to be paid by Sellers to such Transferred Employee in respect of any business day after the Closing Date, provided that Buyer is -------- able to obtain such agreement as Buyer may reasonably require from such Transferred Employee to permit Buyer to adjust the compensation to be paid by Buyer to such Transferred Employee in respect of any business day after the Closing Date to allow Buyer to recover in full the amount of any compensation paid by Sellers to such Transferred Employee for which Buyer has reimbursed or is required to reimburse Sellers pursuant to this Subsection (d). Sellers will deliver to Buyer written notice together with reasonable supporting documentation of any such reimbursable payments concurrent with the delivery of the Resolution Period, any amounts remaining in dispute shall, at the election of either party, be submitted Price Adjustment Statement pursuant to Price Waterhouse Subsection (the "NEUTRAL AUDITOR"a). The Neutral Auditor shall be engaged within five days after an election by either party to submit its objections to the Neutral Auditor, and each party agrees to execute, if requested by the Neutral Auditor, a reasonable engagement letter. All fees and expenses of the Neutral Auditor shall be borne equally by Seller and Buyer. The Neutral Auditor shall act as an arbitrator to determine, based solely on the written presentations by Seller and Buyer made within 15 days of the Neutral Auditor's engagement or will pay such other reasonable period of time to which the parties agree, and not by independent review, only those issues still in dispute. The Neutral Auditor's determination shall be made within 30 days after Seller's and Buyer's written presentations have been made, shall be set forth in a written statement delivered reimbursement to Seller and as soon as Buyer and shall be final, binding, conclusive and nonappealable. The term "FINAL CLOSING STATEMENT" shall mean is able to obtain the definitive Closing Statement agreed aforementioned agreement from any such Transferred Employee (which agreement Buyer will use commercially reasonable efforts to by Seller and Buyer in accordance with Section 1.4(b) or the definitive Closing Statement resulting from the determination made by the Neutral Auditor in accordance with this Section 1.4(c) (in addition to those items theretofore agreed to by Seller and Buyer)obtain promptly after receipt of Sellers' notice requiring reimbursement.
Appears in 1 contract
Purchase Price Adjustment. The Base Purchase Price shall be adjusted as follows (such adjustment being referred to herein as the "Purchase Price Adjustment"):
(a) As soon as practicable but not later than 60 days following The Base Purchase Price shall be adjusted for any change in the dollar by dollar for each dollar of total combined net worth of the AFA Group and Agro on the Closing DateDate from the combined net worth of the AFA Group and Agro on June 30, Seller 1998 set forth on Schedule 2.6
(a) hereto. The Buyer shall prepare and deliver to Buyer a working capital statement combined balance sheet of the Company AFA Group and Agro as of the close of business on the Closing Date (the "CLOSING STATEMENTClosing Balance Sheet") setting forth the current assets minus the current liabilities of the Company (the "WORKING CAPITAL") on the basis described in Annex B, accompanied by a report from Arthur Andersen LLP; PROVIDED, HOWEVER, if the transactions contemplaxxx xx Xxxxxxx 4.11(a) or (b) occur, promptly after the Closing Statement will be prepared as if the Com pany did not own the Dermablend Business or the National Cosmetics Business and the Iman Business as of Date but no later than 45 days after the Closing Date, as the case may be; PROVIDED FURTHER that if Buyer retains the Dermablend Business and, pursuant to Section 4.11(b), sells the National Cosmetics Business and the Iman Business, the Dermablend Business will also include the net accounts receivable (other than the Designated Receivables (as defined in Section 4.11)), bank overdraft, accounts payable and accrued expenses related to the National Cosmetics Business and the Iman Business. Seller and its authorized representatives shall have reasonable access to all relevant books and records and employees of the Company following the Closing Date to the extent required to complete preparation of the Closing Statement, including, without limitation, preparation of any financial reports or schedules needed to complete the Closing Statement. Seller and Buyer shall split equally the cost of preparing and delivering the Closing Statement.
(b) After The Sellers and the Agro Seller shall have the right during the 45 days following receipt of the Closing Statement, Buyer Balance Sheet to dispute the Closing Balance Sheet presented. The Sellers and the Agro Seller shall have 15 days the right to review itexamine the books and records from which the Closing Balance Sheet was made. Buyer The Sellers and its authorized representatives the Agro Seller shall have reasonable access to Seller's accountants either deliver a written acceptance of such Closing Balance Sheet or deliver a written notice of dispute, identifying the basis for the dispute to the extent required possible and the Sellers and the Agro Seller's Closing Balance Sheet (the "Sellers and Agro Seller's Closing Balance Sheet"). If Sellers and Agro Seller fail to complete their review deliver a notice of acceptance or dispute within the Closing Statement, including, without limitation45-day period, the accountants' work papers used in preparation thereofSellers and the Agro Seller shall be deemed conclusively to have accepted the Buyer's Closing Balance Sheet. Unless Buyer delivers written notice to Seller on or prior to the 15th day after Upon receipt of the Closing Statement specifying in reasonable detail its objections to acceptance or notice of dispute (the Closing Statement on date of receipt by the grounds that Buyer shall be the Closing Statement (i"Balance Sheet Notice Date") was not prepared or the expiration of the 45-day period, the Buyer shall make the Purchase Price Adjustment Payment in accordance with this Section 1.4 or (ii) contained arithmetic errors, the parties its calculation. The Purchase Price Adjustment Payment shall be deemed in the form of shares of KTI Common Stock. The number of shares to have accepted and agreed to be issued shall be calculated by dividing the Closing Statement. If Buyer so notifies Seller Purchase Price Adjustment Payment by the average closing sale price per share for the ten trading days immediately preceding the Balance Sheet Notice Date or the last day of such an objection to the Closing Statement, the parties shall within 15 days following the date of such notice (the "RESOLUTION PERIOD") attempt to resolve their differences45-day period as appropriate.
(c) At Any dispute concerning the conclusion Closing Balance Sheet shall be settled by an agreed procedure to be performed by a certified public accounting firm of nationally recognized standing (currently known as the Resolution Period"Big 5" accounting firms). The Buyer shall select the certified public accounting firm, any amounts remaining in dispute shallwhich shall be reasonably acceptable to the Sellers and the Agro Seller. If the Sellers and the Agro Seller reject such firm, at then KTI shall select a second firm. If the election of either partySellers and the Agro Seller reject such firm, then KTI shall select a third firm, which shall be submitted to Price Waterhouse used under all circumstances and the Sellers and the Agro Seller hereby accept such accounting firm. The written determinations (the "NEUTRAL AUDITORBalance Sheet Calculations"). The Neutral Auditor ) by such accounting firm after consideration of all written objections thereto in accordance with the foregoing procedure shall be engaged within five days after an election by either party to submit its objections to the Neutral Auditor, conclusive and each party agrees to execute, if requested by the Neutral Auditor, a reasonable engagement letterbinding on all parties. All Any fees and expenses of the Neutral Auditor accounting firm for the special procedure shall be borne equally by Seller and Buyer. The Neutral Auditor shall act as an arbitrator to determinethe parties proportionately, based solely on the written presentations difference between the Balance Sheet Calculation and the calculation by the Buyer on one hand and the Sellers and the Agro Seller on the other. By way of example, if the calculation by the Buyer is lower by $50,000 and the calculation by the Sellers and the Agro Seller is higher by $100,000, then the Buyer made within 15 days shall pay one-third of the Neutral Auditor's engagement or such other reasonable period cost and the Sellers and the Agro Seller shall pay two-thirds of time to which the cost. Regardless of the parties agreepaying the accounting firm, both sides shall have full and not complete access to the accounting firm, its records, work papers and related documents.
(d) If the amount of the Purchase Price Adjustment, as determined in accordance with Subsection (c) above, is less than the Purchase Price Adjustment Payment actually made by independent reviewthe Buyer, only those issues still in dispute. The Neutral Auditor's determination shall be made within 30 no later than 10 business days after the delivery of the Balance Sheet Calculation, the Seller shall deliver to the Buyer the amount of such overpayment in shares of KTI Common Stock (the amount being determined utilizing the same price per share as was utilized in the calculation of the number of shares to be delivered in making the Purchase Price Adjustment). If the amount of the Purchase Price Adjustment, as determined in accordance with subsection (d) above, is greater than the Purchase Price Adjustment actually made by the Seller's and Buyer's written presentations , no later than 10 business days after the delivery of the Balance Sheet Calculation, the Buyer shall deliver to the Seller such number of additional shares of KTI Common Stock as would have been made, shall be deliverable to the Seller at the time the Purchase Price Adjustment was actually made had the calculation equaled the calculation as set forth in a written statement delivered to Seller and Buyer and shall be final, binding, conclusive and nonappealable. The term "FINAL CLOSING STATEMENT" shall mean the definitive Closing Statement agreed to by Seller and Buyer in accordance with Section 1.4(b) or the definitive Closing Statement resulting from the determination made by the Neutral Auditor in accordance with this Section 1.4(c) (in addition to those items theretofore agreed to by Seller and Buyer)Balance Sheet Calculation.
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Purchase Price Adjustment. (a) As soon as practicable but not later Not less than 60 days following three Business Days prior to the anticipated Closing Date, Seller shall prepare in good faith and deliver to Buyer Purchaser (x) a working capital statement (the “Estimated Closing Statement”), in form and substance consistent with the illustrative example set forth on Exhibit C hereto (provided that in the event of any inconsistency between the illustrative example and the Accounting Principles or this Agreement, the Accounting Principles and this Agreement shall control), setting forth (i) Seller’s good faith estimate of Closing Cash (“Estimated Cash”), (ii) Seller’s good faith estimate of Closing Working Capital (“Estimated Working Capital”), (iii) Seller’s good faith estimate of Closing Indebtedness (“Estimated Indebtedness”), (iv) Seller’s good faith estimate of the Company as Closing Required Payment Amount (the “Estimated Required Payment Amount”), (v) Seller’s good faith estimate of all Change of Control Payments (the close “Estimated Change of business on Control Payments”) and (vi) the Initial Closing Date Amount, and (y) a statement (the "CLOSING STATEMENT"“Estimated Unfunded Employee Liability Statement”) setting forth the current assets minus the current liabilities Seller’s good faith estimate of the Company (the "WORKING CAPITAL") on the basis described in Annex B, accompanied by a report from Arthur Andersen LLP; PROVIDED, HOWEVER, if the transactions contemplaxxx xx Xxxxxxx 4.11(a) or (b) occur, the Closing Statement will be prepared as if the Com pany did not own the Dermablend Business or the National Cosmetics Business and the Iman Business as of the Closing Date, as the case may be; PROVIDED FURTHER that if Buyer retains the Dermablend Business and, pursuant to Section 4.11(b), sells the National Cosmetics Business and the Iman Business, the Dermablend Business will also include the net accounts receivable (other than the Designated Receivables (as defined in Section 4.11)), bank overdraft, accounts payable and accrued expenses related to the National Cosmetics Business and the Iman Business. Seller and its authorized representatives shall have reasonable access to all relevant books and records and employees of the Company following the Closing Date to the extent required to complete preparation of the Closing Statement, including, without limitation, preparation of any financial reports or schedules needed to complete the Closing Statement. Seller and Buyer shall split equally the cost of preparing and delivering the Closing Statement.
(b) After receipt of the Closing Statement, Buyer shall have 15 days to review it. Buyer and its authorized representatives shall have reasonable access to Seller's accountants to the extent required to complete their review of the Closing Statement, including, without limitation, the accountants' work papers used in preparation thereof. Unless Buyer delivers written notice to Seller on or prior to the 15th day after receipt of the Closing Statement specifying in reasonable detail its objections to the Closing Statement on the grounds that the Closing Statement (i) was not the Unfunded Defined Benefit Plan Liability Amount (the “Estimated Unfunded Defined Benefit Plan Liability Amount”) and (ii) the Transferred Retiree Medical Liabilities (the “Estimated Retiree Medical Liability Amount”). The Estimated Closing Statement and the Estimated Unfunded Employee Liability Statement shall be prepared in accordance with this Section 1.4 or the Accounting Principles (ii) contained arithmetic errors, the parties shall be deemed to have accepted and agreed to the Closing Statementextent applicable) and this Agreement and shall include a reasonably detailed summary of the calculations made to arrive at, and reasonable supporting documentation for, such amounts. If Buyer so notifies Seller of such an objection has previously provided or made available to the Closing Statement, the parties shall within 15 days following Purchaser prior to the date of such notice this Agreement (the "RESOLUTION PERIOD"x) attempt to resolve their differences.
(c) At the conclusion an illustrative calculation of the Resolution PeriodEstimated Unfunded Defined Benefit Plan Liability Amount as of December 31, any amounts remaining in dispute shall, at 2018 consistent with the election of either party, be submitted to Price Waterhouse Pension Principles and (the "NEUTRAL AUDITOR"). The Neutral Auditor shall be engaged within five days after y) an election by either party to submit its objections to the Neutral Auditor, and each party agrees to execute, if requested by the Neutral Auditor, a reasonable engagement letter. All fees and expenses illustrative calculation of the Neutral Auditor shall be borne equally by Seller Estimated Retiree Medical Liability Amount as of December 31, 2018 consistent with the Retiree Medical Principles. In the event of any conflict between such illustrative calculations and Buyer. The Neutral Auditor shall act the Pension Principles or Retiree Medical Principles, as an arbitrator to determineapplicable, based solely on the written presentations by Seller and Buyer made within 15 days of the Neutral Auditor's engagement Pension Principles or such other reasonable period of time to which the parties agreeRetiree Medical Principles, and not by independent review, only those issues still in dispute. The Neutral Auditor's determination shall be made within 30 days after Seller's and Buyer's written presentations have been madeas applicable, shall be set forth in a written statement delivered to Seller and Buyer and shall be final, binding, conclusive and nonappealable. The term "FINAL CLOSING STATEMENT" shall mean the definitive Closing Statement agreed to by Seller and Buyer in accordance with Section 1.4(b) or the definitive Closing Statement resulting from the determination made by the Neutral Auditor in accordance with this Section 1.4(c) (in addition to those items theretofore agreed to by Seller and Buyer)control.
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Purchase Price Adjustment. (a) As soon The Purchase Price will be subject to adjustment (hereinafter referred to as practicable but not later than 60 days following the "PURCHASE PRICE ADJUSTMENT") in accordance with the foregoing provisions of this Section 1.3. The Purchase Price shall be increased by the amount that the Adjusted Assets as of the Closing Date exceeds the Total Liabilities as of the Closing Date. The Purchase Price shall be reduced by the amount that the Total Liabilities exceeds the Adjusted Assets as of the Closing Date. For purposes of this Section 1.3, Seller Adjusted Assets shall prepare be determined in accordance with generally accepted accounting principles ("GAAP") and deliver shall include cash, cash equivalents, treasury bills, inventories, prepaid expenses, prepaid supplies, current and non-current accounts receivable (without regard to Buyer a working capital statement allowances for doubtful accounts) and current and non-current notes receivable (without regard to allowances for doubtful accounts). For purposes of this Section 1.3, Total Liabilities shall include all current liabilities and long term liabilities determined in accordance with GAAP. The balance sheet for the Company as of the close of business on the Closing Date (the "CLOSING STATEMENTBALANCE SHEET") setting forth the current assets minus the current liabilities of the Company (the "WORKING CAPITAL") on the basis described in Annex Bshall be prepared by Seller's auditors, accompanied by a report from Arthur Andersen LLP; PROVIDEDat Seller's expense, HOWEVER, if the transactions contemplaxxx xx Xxxxxxx 4.11(a) or (b) occur, as soon as practicable. The parties shall use all commercially reasonable efforts to have the Closing Statement will be prepared as if the Com pany did not own the Dermablend Business or the National Cosmetics Business and the Iman Business as Balance Sheet finalized within sixty (60) days of the Closing Date, as the case may be; PROVIDED FURTHER that if Buyer retains the Dermablend Business and, pursuant to Section 4.11(b), sells the National Cosmetics Business . The Closing Balance Sheet and the Iman Business, the Dermablend Business will also include the net accounts receivable (other than the Designated Receivables (as defined in Section 4.11)), bank overdraft, accounts payable and accrued expenses related resulting Purchase Price Adjustment shall be subject to the National Cosmetics Business review and the Iman Business. Seller approval of Buyer and its authorized representatives auditors, at Buyer's expense, and notwithstanding any provision herein to the contrary, Seller shall permit Buyer and its auditors to have reasonable access to all relevant the books and records necessary for such parties to conduct their review and employees approval. In the event of the Company following any dispute regarding the Closing Date to Balance Sheet, the extent required to complete preparation of the Closing Statementdisputed items shall be finally determined by a mutually acceptable independent, includingbig four accounting firm, without limitation, preparation of any financial reports or schedules needed to complete the Closing Statementwhich final determination shall be binding on Buyer and Seller. Buyer and Seller and Buyer shall split share equally the cost costs and expenses of preparing and delivering the Closing Statementsuch independent accounting firm.
(b) After receipt If, as of the result of the final determination of the Purchase Price Adjustment:
(i) Seller is determined to owe an amount to Buyer because the Total Liabilities exceed the Adjusted Assets (the amount of such excess, "NOTE REDUCTION AMOUNT"), Seller shall (A) cancel the principal amount of the Closing StatementNote then outstanding in an amount equal to the Note Reduction Amount (and all accrued and unpaid interest thereon) and (B) reduce any amortization related to such Closing Note on a pro rata basis.
(ii) Buyer is determined to owe an amount to Seller because the Adjusted Assets exceed the Total Liabilities (the amount of such excess, "EXCESS AMOUNT"), Buyer shall have 15 days deliver to review it. Buyer and its authorized representatives shall have reasonable access to Seller's accountants to Seller a note, in the extent required to complete their review form of the Closing StatementNote, including, without limitation, the accountants' work papers used in preparation thereof. Unless Buyer delivers written notice to Seller on or prior an amount equivalent to the 15th day after receipt of Excess Amount and with amortization payments on a pro rata basis with the Closing Statement specifying in reasonable detail its objections to the Closing Statement on the grounds that the Closing Statement (i) was not prepared in accordance with this Section 1.4 or (ii) contained arithmetic errors, the parties shall be deemed to have accepted and agreed to the Closing Statement. If Buyer so notifies Seller of such an objection to the Closing Statement, the parties shall within 15 days following the date of such notice Note (the "RESOLUTION PERIODEXCESS AMOUNT NOTE") attempt to resolve their differences.
(c) At the conclusion of the Resolution Period, any amounts remaining in dispute shall, at the election of either party, be submitted to Price Waterhouse (the "NEUTRAL AUDITOR"). The Neutral Auditor Excess Amount Note and the Closing Note shall be engaged within five days after an election by either party to submit its objections to the Neutral Auditor, and each party agrees to execute, if requested by the Neutral Auditor, a reasonable engagement letter. All fees and expenses of the Neutral Auditor shall be borne equally by Seller and Buyer. The Neutral Auditor shall act as an arbitrator to determine, based solely on the written presentations by Seller and Buyer made within 15 days of the Neutral Auditor's engagement or such other reasonable period of time to which the parties agree, and not by independent review, only those issues still in dispute. The Neutral Auditor's determination shall be made within 30 days after Seller's and Buyer's written presentations have been made, shall be set forth in a written statement delivered to Seller and Buyer and shall be final, binding, conclusive and nonappealable. The term "FINAL CLOSING STATEMENT" shall mean the definitive Closing Statement agreed to by Seller and Buyer in accordance crossdefault provisions with Section 1.4(b) or the definitive Closing Statement resulting from the determination made by the Neutral Auditor in accordance with this Section 1.4(c) (in addition to those items theretofore agreed to by Seller and Buyer)one another.
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Purchase Price Adjustment. (a) As soon as practicable but not No later than 60 the third (3rd) Business Day prior to the anticipated Closing Date, the Company shall deliver to Buyer a statement (the “Estimated Closing Statement”) setting forth in reasonable detail (i) Sellers’ good faith estimates of the Net Working Capital, Closing Cash, Company Transaction Expenses, Indebtedness Payoff Amount, the Divestiture Tax Adjustment, the Environmental Remediation Cost and the Non-Signing Stockholder Amount as of the Effective Time, and (ii) a calculation of the Purchase Price based on such estimates (such amount the “Estimated Purchase Price”).
(b) Within one hundred twenty (120) calendar days following after the Closing Date, Seller Buyer shall prepare and deliver to Buyer the Stockholder Representative a working capital statement of the Company as of the close of business on the Closing Date (the "CLOSING STATEMENT"“Closing Statement”) setting forth Buyer’s good faith determination of (i) the current assets minus the current liabilities actual amounts of the Net Working Capital, Closing Cash, Company Transaction Expenses, Indebtedness Payoff Amount, the Environmental Remediation Cost and the Non-Signing Stockholder Amount, (ii) the "WORKING CAPITAL"Divestiture Tax Adjustment, and (iii) a calculation of the Purchase Price based on such amounts. The Closing Statement and the determination of calculations set forth therein shall become final and binding upon the Parties on the basis described ninetieth (90th) calendar day after the date upon which such Closing Statement is received by the Stockholder Representative (such 90-day period, the “Objection Period”), unless Stockholder Representative delivers to Buyer written notice that they dispute any aspect of the Closing Statement (an “Objection Notice”) prior to the end of such Objection Period. The Objection Notice shall specify in Annex Breasonable detail the nature of any dispute so asserted, accompanied by a report from Arthur Andersen LLP; PROVIDEDand any amount contained in the Closing Statement that is not specifically disputed in the Objection Notice shall be final and binding on the Parties as set forth in the Closing Statement. If an Objection Notice is delivered to Buyer prior to the end of the Objection Period, HOWEVER, if then the transactions contemplaxxx xx Xxxxxxx 4.11(aClosing Statement and the determination of calculations set forth therein (as revised in accordance with clause (i) or (bii) occurbelow) shall become final and binding upon the Parties on the earlier to occur of (i) the date Buyer and Stockholder Representative resolve in writing any differences they have with respect to the matters specified in the Objection Notice, or (ii) the date any disputed matters are finally resolved by the Accounting Firm as provided below. The Purchase Price as set forth in the version of the Closing Statement will be prepared that becomes final and binding on the Parties in accordance with this Section 1.4(b) is referred to herein as if the Com pany did not own the Dermablend Business or the National Cosmetics Business and the Iman Business as of “Final Purchase Price.”
(c) From the Closing Dateuntil such time as all matters set forth in the Objection Notice have been fully and finally resolved in accordance herewith, as the case may be; PROVIDED FURTHER that if Buyer retains the Dermablend Business and, pursuant to Section 4.11(b), sells the National Cosmetics Business shall (i) maintain and the Iman Business, the Dermablend Business will also include the net accounts receivable (other than the Designated Receivables (as defined in Section 4.11)), bank overdraft, accounts payable and accrued expenses related provide to the National Cosmetics Business Stockholder Representative and the Iman Business. Seller his advisors and its authorized representatives shall have reasonable access to all relevant documents and other information utilized by Buyer and its representatives and advisors in connection with Buyer’s preparation of the Closing Statement that are necessary to review the Closing Statement, including (without limitation) all financial statements, work papers, schedules, accounts, analysis and books and records and employees of the Company following relating to the Closing Date to the extent required to complete Statement prepared by or on behalf of Buyer in connection with preparation of the Closing Statement; (ii) provide the Stockholder Representative and his representatives and advisors reasonable access to such employees and accountants who participated in the preparation or review of, includingor otherwise have relevant knowledge concerning, without limitation, preparation of any financial reports or schedules needed to complete the Closing Statement; and (iii) reasonably cooperate with the Stockholder Representative in providing the information and personnel reasonably required by the Stockholder Representative to resolve the matters set forth in the Objection Notice; provided, that any access provided to the Stockholder Representative pursuant to this Section 1.4(c) shall be (A) during regular business hours, and (B) in a manner which will not unreasonably interfere with the operation of the Business. Seller The rights of Sellers under this Agreement shall not be prejudiced by the failure of Buyer to comply with this Section 1.4(c) and, without limiting the generality of the foregoing, the time period by which the Stockholder Representative is required to provide an Objection Notice under Section 1.4(b) shall be automatically extended by the number of days Buyer fails to comply with this Section 1.4(c) plus an additional fifteen (15) calendar days.
(d) In the event that the Stockholder Representative provides an Objection Notice to Buyer on or before the end of the Objection Period, then the Stockholder Representative and Buyer shall, within thirty (30) calendar days following the Stockholder Representative’s delivery of such Objection Notice (such 30-day period, the “Dispute Resolution Period”), in good faith seek to resolve the items disputed in the Objection Notice.
(e) If, during the Dispute Resolution Period, the Stockholder Representative and Buyer resolve their differences in writing as to any disputed amount, such resolution shall be deemed final and binding with respect to such amount for the purpose of determining that component of the Final Purchase Price. In the event that the Stockholder Representative and Buyer do not resolve all of the items disputed in the Objection Notice on or before the end of the Dispute Resolution Period, all such unresolved disputed items shall be submitted by Buyer or the Stockholder Representative to BDO USA, LLP (or, if such firm is not available or otherwise cannot accept such submission, to another nationally recognized accounting firm that has not worked with Sellers or Buyer in the past three (3) years) (the “Accounting Firm”) for resolution, and Buyer and the Stockholder Representative shall promptly sign an engagement letter with the Accounting Firm in a form customary for an engagement of this type. The Accounting Firm shall, acting as experts in accounting and not as arbitrator, determine only those items still in dispute, and for each such item shall determine a value within the range of values submitted therefor by Buyer and the Stockholder Representative in the Closing Statement and the Objection Notice, respectively. The Accounting Firm shall deliver to Buyer and the Stockholder Representative a written determination (such determination to include a work sheet setting forth all material calculations used in arriving at such determination and to be based solely on information provided to the Accounting Firm by Buyer and the Stockholder Representative) of the disputed amounts within ninety (90) calendar days of submission to the Accounting Firm of such disputed amounts (such 90-day period, the “Adjudication Period”), which determination shall be final and binding. In the event that either Buyer or the Stockholder Representative fail to submit their respective statement regarding any items remaining in dispute within the time determined by the Accounting Firm, then the Accounting Firm shall have the authority, in its sole discretion, to extend the Adjudication Period for such amount of time as the Accounting Firm deems equitable.
(f) In the event that the Final Purchase Price is less than the Estimated Purchase Price, the Stockholder Representative and Buyer shall split equally jointly direct the cost of preparing and delivering Escrow Agent to pay such amount from the Post-Closing StatementEscrow Amount, or, if necessary, the Stockholder Representative may pay such amount from the Stockholder Expense Amount, in either case in the manner provided in Section 1.4(g). In the event that the Final Purchase Price is greater than the Estimated Purchase Price, Buyer shall pay to the Stockholder Representative an amount equal to such difference in the manner provided in Section 1.4(g), for distribution to Sellers.
(bg) After receipt of All payments to be made pursuant to Section 1.4(f) hereof shall be made on the Closing Statement, Buyer shall have 15 days to review it. Buyer and its authorized representatives shall have reasonable access to Seller's accountants to second (2nd) Business Day following the extent required to complete their review of the Closing Statement, including, without limitation, the accountants' work papers used in preparation thereof. Unless Buyer delivers written notice to Seller date on or prior to the 15th day after receipt of which the Closing Statement specifying in reasonable detail its objections to the Closing Statement becomes final and binding on the grounds that the Closing Statement (i) was not prepared in accordance with this Section 1.4 or (ii) contained arithmetic errors, the parties shall be deemed to have accepted and agreed to the Closing Statement. If Buyer so notifies Seller of such an objection to the Closing Statement, the parties shall within 15 days following the date of such notice (the "RESOLUTION PERIOD") attempt to resolve their differences.
(c) At the conclusion of the Resolution Period, any amounts remaining in dispute shall, at the election of either party, be submitted to Price Waterhouse (the "NEUTRAL AUDITOR"). The Neutral Auditor shall be engaged within five days after an election by either party to submit its objections to the Neutral Auditor, and each party agrees to execute, if requested by the Neutral Auditor, a reasonable engagement letter. All fees and expenses of the Neutral Auditor shall be borne equally by Seller and Buyer. The Neutral Auditor shall act as an arbitrator to determine, based solely on the written presentations by Seller and Buyer made within 15 days of the Neutral Auditor's engagement or such other reasonable period of time to which the parties agree, and not by independent review, only those issues still in dispute. The Neutral Auditor's determination shall be made within 30 days after Seller's and Buyer's written presentations have been made, shall be set forth in a written statement delivered to Seller and Buyer and shall be final, binding, conclusive and nonappealable. The term "FINAL CLOSING STATEMENT" shall mean the definitive Closing Statement agreed to by Seller and Buyer Parties in accordance with Section 1.4(b). All payments made pursuant to this Section 1.4(g) shall be made via wire transfer of immediately available funds to such account or accounts as shall be designated in writing by the definitive recipient, without interest.
(h) All fees and expenses relating to the work, if any, to be performed by the Accounting Firm shall be allocated between Buyer and Sellers in the same proportion that the aggregate amount of the disputed items so submitted to the Accounting Firm that are unsuccessfully disputed by such Party (as finally determined by the Accounting Firm) bears to the total amount of the disputed items so submitted.
(i) The Estimated Closing Statement resulting from and the determination made Closing Statement and the determinations and calculations contained therein will be prepared and calculated using GAAP.
(j) For Tax purposes, any payments pursuant to Section 1.4(g) shall be treated as adjustments to the Purchase Price to the extent permitted by the Neutral Auditor in accordance with this Section 1.4(c) (in addition to those items theretofore agreed to by Seller and Buyer)Applicable Law.
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Purchase Price Adjustment. a. Within ninety (a90) As soon as practicable but not later than 60 days following after the Closing Date, Seller Purchaser shall prepare and deliver to Buyer Seller Parent a working capital statement setting forth, without duplication of the Company any items, Purchaser’s calculation as of the close of business 12:01 a.m. (New York time) on the Closing Date of the Working Capital, the Net Cash, VAT due by Purchaser under Section 6.6(i), the amount of Transfer Taxes payable by the Sellers and by Purchaser, the allocation of Transfer Taxes payable by the Sellers and by Purchaser under Section 6.6(h), and reasonable supporting schedules for the foregoing (the "CLOSING STATEMENT") setting forth “Proposed Closing Statement”). The Proposed Closing Statement shall be unaudited but shall be prepared in good faith and applying the current assets minus Accounting Principles, and on a basis consistent with the current liabilities preparation of the Company Balance Sheet Statement.
b. During the sixty (60)-day period (“Review Period”) following Seller Parent’s receipt of the "WORKING CAPITAL"Proposed Closing Statement, (i) Seller Parent and its Representatives shall be permitted reasonable access during normal business hours to the working papers of Purchaser and its independent auditors used in the preparation of the Proposed Closing Statement (provided, that Seller Parent and its Representatives, including its independent auditors, have executed all release letters reasonably requested by Purchaser’s independent auditors in connection therewith) and (ii) Seller Parent may dispute the amounts reflected on the line items of the Proposed Closing Statement (a “Disputed Item”) on the basis described that a Disputed Item does not reflect, or has not been made in Annex B, accompanied by a report from Arthur Andersen LLP; PROVIDED, HOWEVER, if the transactions contemplaxxx xx Xxxxxxx 4.11(a) or (b) occurmanner consistent with, the Closing Statement will be prepared as if provisions of this Agreement; provided, however, Seller Parent shall notify Purchaser in writing of each Disputed Item, and specify the Com pany did not own the Dermablend Business or the National Cosmetics Business amount thereof in dispute and the Iman Business as specific basis therefor, within the Review Period. Any notice of the Closing Date, as the case may be; PROVIDED FURTHER that if Buyer retains the Dermablend Business and, pursuant to Section 4.11(b), sells the National Cosmetics Business and the Iman Business, the Dermablend Business will also include the net accounts receivable Disputed Items shall (other than the Designated Receivables (as defined in Section 4.11)), bank overdraft, accounts payable and accrued expenses related to the National Cosmetics Business and the Iman Business. Seller and its authorized representatives shall have reasonable access to all relevant books and records and employees of the Company following the Closing Date to the extent required to complete preparation of the Closing Statement, including, without limitation, preparation of any financial reports or schedules needed to complete the Closing Statement. Seller and Buyer shall split equally the cost of preparing and delivering the Closing Statement.
(bi) After receipt of the Closing Statement, Buyer shall have 15 days to review it. Buyer and its authorized representatives shall have reasonable access to Seller's accountants to the extent required to complete their review of the Closing Statement, including, without limitation, the accountants' work papers used in preparation thereof. Unless Buyer delivers written notice to Seller on or prior to the 15th day after receipt of the Closing Statement specifying specify in reasonable detail its objections to the Closing Statement on the grounds that the Closing Statement nature of any disagreement so asserted (iwith reasonable supporting documentation) was not prepared in accordance with this Section 1.4 or and (ii) contained arithmetic errorsspecify the amount that Seller Parent reasonably believes is the correct Working Capital or the Net Cash, based on the parties disagreements set forth in the notice of Disputed Items, including a reasonably detailed description of the adjustments applied to the Proposed Closing Statement in calculating such amount. Seller Parent shall be deemed to have accepted agreed with all other items and agreed amounts contained in the Proposed Closing Statement not so objected to in a notice of Disputed Items within the Review Period, and the failure by Seller Parent to provide a notice of Disputed Items to Purchaser within the Review Period will constitute Seller Parent’s acceptance of all of the items in the Proposed Closing Statement. Statement and the Proposed Closing Statement shall be conclusive and binding upon the Parties as the Final Closing Statement at the end of the Review Period.
c. If Buyer so notifies a notice of Disputed Items shall be timely delivered pursuant to Section 2.10(b), Seller of such an objection to Parent and Purchaser shall, during the Closing Statement, the parties shall within 15 forty-five (45) days following the date of such notice delivery (the "RESOLUTION PERIOD") attempt “Resolution Period”), negotiate in good faith to resolve their differences.
(c) At the conclusion of Disputed Items. During the Resolution Period, any amounts remaining Purchaser and its Representatives (including its independent auditors) shall be permitted reasonable access during normal business hours to the working papers of Seller Parent and its independent auditors relating to the notice of Disputed Items (provided, that Purchaser and its Representatives, including its independent auditors, have executed all release letters reasonably requested by Seller Parent’s independent auditors in dispute shall, at the election of either party, be submitted to Price Waterhouse (the "NEUTRAL AUDITOR"connection therewith). The Neutral Auditor To the extent the Disputed Items are so resolved in writing within the Resolution Period, then the Proposed Closing Statement, as revised to incorporate such changes as have been agreed between Purchaser and Seller Parent, shall be engaged conclusive and binding upon the Parties as the Final Closing Statement.
d. If during such Resolution Period the Parties are unable to reach agreement, Seller Parent and Purchaser shall refer all unresolved Disputed Items to the Independent Accountant. The Parties shall instruct the Independent Accountant to make a determination with respect to each unresolved Disputed Item within five thirty (30) days after an election by either party to submit its objections to the Neutral Auditor, and each party agrees to execute, if requested by the Neutral Auditor, a reasonable engagement letter. All fees and expenses of the Neutral Auditor shall be borne equally by Seller Parent and Buyer. The Neutral Auditor shall act as an arbitrator Purchaser to determineresolve such Disputed Items, based solely on the written presentations by Seller and Buyer made within 15 days of the Neutral Auditor's engagement or such other reasonable period of time to which the parties agree, and not by independent review, only those issues still in dispute. The Neutral Auditor's determination shall be made within 30 days after Seller's and Buyer's written presentations have been made, shall be in accordance with the rules set forth in this Section 2.10. The Independent Accountant may conduct such proceedings as the Independent Accountant believes, in its sole discretion, will assist in the determination of the unresolved Disputed Items; provided, however, that, except as Seller Parent and Purchaser may otherwise agree, all communications between Seller Parent and Purchaser or any of their respective Representatives, on the one hand, and the Independent Accountant, on the other hand, will be in writing with copies simultaneously delivered to the non-communicating Party. The Independent Accountant shall make its determination solely (i) on the documentation submitted by, and presentations (any such documentation or presentation must be provided to the other Party prior to its submission or presentation to the Independent Accountant) made by Seller Parent and Purchaser, (ii) on the definitions of Preliminary Purchase Price, Working Capital, and Net Cash (and each of the defined terms used in each of those terms) and (iii) in accordance with the Accounting Principles. The Parties shall instruct the Independent Accountant to deliver to Seller Parent and Purchaser, within such thirty (30)-day period, a written statement report setting forth its adjustments, if any, to the Proposed Closing Statement and the calculations supporting such adjustments, and any such adjustments must be within the range of values established for such Disputed Item in the Proposed Closing Statement and the notice of Disputed Items delivered pursuant to Seller and Buyer and Section 2.10(b). Such report shall be final, bindingbinding on the Parties and conclusive on Seller Parent and Purchaser, conclusive absent manifest errors, and nonappealableenforceable in a court of law, effective as of the date the Independent Accountant’s written determination is received by Seller Parent and Purchaser. The term "FINAL CLOSING STATEMENT" Seller Parent and Purchaser shall mean each pay one-half (1/2) of all the definitive costs incurred in connection with the engagement of the Independent Accountant. As used herein, “Final Working Capital” means (A) if no notice of Disputed Items with respect to the Working Capital is delivered by Seller Parent to Purchaser within the Review Period, the Working Capital as shown in the Proposed Closing Statement as prepared by Purchaser, or (B) if such a notice of Disputed Items with respect to the Working Capital is delivered by Seller Parent, either (x) the Working Capital as agreed to in writing by Seller Parent and Buyer Purchaser, or (y) the Working Capital as shown in accordance the Independent Accountant’s calculation delivered pursuant to this Section 2.10(d). As used herein, “Final Net Cash” means (1) if no notice of Disputed Items with Section 1.4(b) or respect to the definitive Net Cash is delivered by Seller Parent to Purchaser within the Review Period, the Net Cash as shown in the Proposed Closing Statement resulting from as prepared by Purchaser, or (2) if such a notice of Disputed Items with respect to the Net Cash is delivered by Seller Parent, either (x) the Net Cash as agreed to in writing by Seller Parent and Purchaser, or (y) the Net Cash as shown in the Independent Accountant’s calculation delivered pursuant to this Section 2.10(d). Seller Parent and Purchaser acknowledge that they have discussed their past contacts, if any, with the Independent Accountant, and that neither Party shall have the right to object to the Independent Accountant’s service in such role by reason of disclosed past contacts and conflicts of interest. If, before the Independent Accountant renders its determination made by with respect to the Neutral Auditor Disputed Items in accordance with this Section 1.4(c2.10(d), (I) Seller Parent notifies Purchaser of its agreement with any items in the Proposed Closing Statement or (II) Purchaser notifies Seller Parent of its agreement with any Disputed Items, then in addition to those each case such items theretofore as so agreed to by Seller will be conclusive and Buyer)binding on the Parties immediately upon such notice.
Appears in 1 contract
Samples: Stock and Asset Purchase Agreement (Icu Medical Inc/De)
Purchase Price Adjustment. (ai) As soon as practicable but not later than 60 Within one-hundred-twenty (120) days following the Closing Date, Seller the Non-Real Estate Buyer shall prepare and deliver to Buyer Sellers a working capital statement of (in its final and binding form, the Company “Closing Statement”) setting forth the Net Working Capital as of 11:59 p.m. Central Time, on the close of business on date immediately preceding the Closing Date (the "CLOSING STATEMENT"“Closing Net Working Capital”) setting and the Cash Portion calculated therefrom. The Closing Statement shall be prepared (A) using the same quarterly and year-end accounting closing practices as those used for Sellers’ consolidated quarterly and year-end accounting closings presented by Sellers to the Non-Real Estate Buyer from the period between January 1, 2010 and June 30, 2011 and (B) consistent with the accounting principles, methods, policies, practices, procedures, estimation methods, treatments and categorizations (collectively, the “Accounting Principles”) set forth on the current assets minus Net Working Capital Schedule. Sellers shall give the current liabilities Non-Real Estate Buyer reasonable access to Sellers’ books and records and shall cooperate with the Non-Real Estate Buyer in connection with the preparation of the Company Closing Statement. Following Sellers’ receipt of the Closing Statement, and until the Closing Net Working Capital and the resulting Cash Portion are finally determined pursuant to this Section 2.7(c), Sellers and their representatives and agents shall be permitted to review the Non-Real Estate Buyer’s books and records related to the Non-Real Estate Buyer’s preparation of the Closing Statement and determination of the Closing Net Working Capital. The Closing Statement shall become final and binding upon the parties thirty (30) days following Sellers’ receipt thereof, unless Sellers give written notice of their disagreement (a “Notice of Disagreement”) to the Non-Real Estate Buyer prior to such date. Any Notice of Disagreement shall specify in reasonable detail the nature and dollar amount of any disagreement so asserted. If a timely Notice of Disagreement is received by the Non-Real Estate Buyer, then the Closing Statement (as revised in accordance with clause (x) or (y) below) shall become final and binding upon the parties on the earliest of (x) the date the parties hereto resolve in writing any differences they have with respect to the matters specified in the Notice of Disagreement or (y) the date all matters in dispute are finally resolved in writing by the Accounting Firm. During the thirty (30) days following delivery of a Notice of Disagreement, the Non-Real Estate Buyer and Sellers shall seek in good faith to resolve in writing any differences which they may have with respect to the matters specified in the Notice of Disagreement. During such period, the Non-Real Estate Buyer shall be permitted to review Sellers’ working papers relating to the Notice of Disagreement. At the end of such thirty (30)-day period, the Non-Real Estate Buyer and Sellers shall submit to Xxxxxxxx Xxxxx, Inc. or, if Xxxxxxxx Xxxxx, Inc. is not available, then to Mesirow Financial Holdings, Inc. or, if Mesirow Financial Holdings, Inc. is not available, then to a nationally recognized valuation or consulting firm as is acceptable to Sellers and the Non-Real Estate Buyer (the "WORKING CAPITAL"“Valuation Firm”), for review and resolution of all matters (but only such matters) that remain in dispute, and the Valuation Firm shall make a final determination of the Closing Net Working Capital and the resulting Cash Portion in accordance with the guidelines and procedures set forth in this Agreement. The Non-Real Estate Buyer and Sellers will cooperate with the Valuation Firm during the term of its engagement. The Valuation Firm’s determination of the Closing Net Working Capital and the resulting Cash Portion shall be based solely on written presentations submitted by the Non-Real Estate Buyer and Sellers which are in accordance with the guidelines and procedures (including the definition of the Net Working Capital) set forth in this Agreement (i.e., not on the basis described of an independent review) and in Annex Bthe Net Working Capital Schedule. The Valuation Firm shall consider only the disputed matters that were included in the Notice of Disagreement and the Valuation Firm may not assign a value to any item in dispute greater than the greatest value assigned by the Non-Real Estate Buyer, accompanied on the one hand, or Sellers, on the other hand, or less than the smallest value for such item assigned by a report from Arthur Andersen LLP; PROVIDEDthe Non-Real Estate Buyer, HOWEVERon the one hand, or Sellers, on the other hand. The Closing Statement shall become final and binding on the Parties on the date the Valuation Firm delivers its final resolution in writing to the Parties (which the Valuation Firm shall be instructed to deliver not more than forty-five (45) days following submission of such disputed matters). The fees and expenses of the Valuation Firm shall be allocated 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 in the written presentation to the Valuation Firm. For example, if the transactions contemplaxxx xx Xxxxxxx 4.11(aNon-Real Estate Buyer submits a Notice of Disagreement for $1,000, and if Sellers contest only $500 of the amount claimed by the Non-Real Estate Buyer, and if the Valuation Firm ultimately resolves the dispute by awarding Non-Real Estate Buyer $300 of the $500 contested, then the costs and expenses of the Valuation Firm will be allocated 60% (i.e., 300/500) or to Sellers and 40% (bi.e., 200/500) occurto the Non-Real Estate Buyer.
(ii) If the Estimated Cash Portion is greater than the Cash Portion, Eyelematic and Echo shall, and if the Cash Portion is greater than the Estimated Cash Portion, the Non-Real Estate Buyer shall, within three (3) business days after the Closing Statement will be prepared as if becomes final and binding on the Com pany did not own Parties, make payment by wire transfer to the Dermablend Business Non-Real Estate Buyer or the National Cosmetics Business Eyelematic and the Iman Business as of the Closing DateEcho, as the case may be; PROVIDED FURTHER that if Buyer retains , in immediately available funds of the Dermablend Business andamount of such difference, pursuant to Section 4.11(b), sells the National Cosmetics Business and the Iman Business, the Dermablend Business will also include the net accounts receivable (other than the Designated Receivables (as defined in Section 4.11)), bank overdraft, accounts payable and accrued expenses related together with interest thereon at a rate per annum equal to the National Cosmetics Business and prime rate of interest announced from time to time in The Wall Street Journal, calculated on the Iman Business. Seller and its authorized representatives shall have reasonable access to all relevant books and records and employees basis of the Company following actual number of days elapsed over 365, from the Closing Date to the extent required date of payment. If Eyelematic and Echo are obligated to complete preparation of the Closing Statement, including, without limitation, preparation of pay any financial reports or schedules needed amount pursuant to complete the Closing Statement. Seller and Buyer shall split equally the cost of preparing and delivering the Closing Statement.
(b) After receipt of the Closing Statement, Buyer shall have 15 days to review it. Buyer and its authorized representatives shall have reasonable access to Seller's accountants to the extent required to complete their review of the Closing Statement, including, without limitation, the accountants' work papers used in preparation thereof. Unless Buyer delivers written notice to Seller on or prior to the 15th day after receipt of the Closing Statement specifying in reasonable detail its objections to the Closing Statement on the grounds that the Closing Statement (i) was not prepared in accordance with this Section 1.4 or (ii2.7(c)(ii), then the Non-Real Estate Buyer can collect the total amount owed pursuant to this Section 2.7(c)(ii) contained arithmetic errors, the parties shall be deemed severally from either Eyelematic and Echo. Eyelematic and Echo covenant to have accepted and agreed maintain a reasonable amount of funds in their retained bank accounts to the Closing Statement. If Buyer so notifies Seller of such an objection to the Closing Statement, the parties shall within 15 days following the date of such notice (the "RESOLUTION PERIOD") attempt to resolve their differences.
(c) At the conclusion of the Resolution Period, satisfy any amounts remaining in dispute shall, at the election of either party, be submitted to Price Waterhouse (the "NEUTRAL AUDITOR"). The Neutral Auditor shall be engaged within five days after an election by either party to submit its objections to the Neutral Auditor, and each party agrees to execute, if requested by the Neutral Auditor, a reasonable engagement letter. All fees and expenses of the Neutral Auditor shall be borne equally by Seller and Buyer. The Neutral Auditor shall act as an arbitrator to determine, based solely on the written presentations by Seller and Buyer made within 15 days of the Neutral Auditor's engagement or such other reasonable period of time to which the parties agree, and not by independent review, only those issues still in dispute. The Neutral Auditor's determination shall be made within 30 days after Seller's and Buyer's written presentations have been made, shall be set forth in a written statement delivered to Seller and Buyer and shall be final, binding, conclusive and nonappealable. The term "FINAL CLOSING STATEMENT" shall mean the definitive Closing Statement agreed to by Seller and Buyer in accordance with Section 1.4(b) or the definitive Closing Statement resulting from the determination made by the Neutral Auditor in accordance with owed under this Section 1.4(c) (in addition to those items theretofore agreed to by Seller and Buyer2.7(c)(ii).
Appears in 1 contract
Samples: Revolving Credit, Term Loan and Security Agreement (Twist Beauty S.a r.l. & Partners S.C.A.)
Purchase Price Adjustment. (a) As soon At least three (3) Business Days, but no more than five (5) Business Days, prior to the Closing, the Company shall prepare and deliver to Buyer (i) an estimated consolidated balance sheet of the Company Entities as practicable but of the Adjustment Calculation Time (the “Estimated Closing Balance Sheet”), and (ii) a statement (the “Estimated Closing Statement”) setting forth in reasonable detail the Company’s good faith estimates of the Closing Cash-on-Hand (the “Estimated Closing Cash-on-Hand”), the Closing Indebtedness (the “Estimated Closing Indebtedness”), the Closing Net Working Capital (the “Estimated Closing Net Working Capital”) and the calculation of the Purchase Price resulting therefrom (the “Estimated Purchase Price”), in each case, based on the Estimated Closing Balance Sheet and including the Estimated Purchased Shares Purchase Price, the Estimated CoVant Series LGS Purchased Units Purchase Price, the Estimated Legos Holdings Purchased Units Purchase and each Seller’s Pro Rata Portion. The Estimated Closing Balance Sheet, the Estimated Closing Cash-on-Hand, the Estimated Closing Indebtedness and the Estimated Closing Net Working Capital shall each be calculated in accordance with the Agreed Accounting Principles and in a manner consistent with the applicable definitions contained in this Agreement. From and after delivery of the Estimated Closing Balance Sheet and the Estimated Closing Statement until the Closing, the Company shall (x) provide Buyer and its Representatives with reasonable access at all reasonable times during normal business hours and upon reasonable prior notice to the books and records of the Company Entities and to senior management personnel of the Company Entities, in each case, to the extent reasonably requested by Buyer or any of its Representatives in connection with their review of the Estimated Closing Balance Sheet and the Estimated Closing Statement, and (y) cooperate with Buyer and its Representatives in connection with their review of the Estimated Closing Balance Sheet and the Estimated Closing Statement. Provided that Buyer pays the Purchase Price in accordance with the amounts set forth in the Estimated Closing Statement, Buyer’s obligation to pay the Purchase Price shall be deemed satisfied, Buyer shall not later be responsible or have any liability to any Person for the division of such proceeds and Buyer shall own the Purchased Securities, free and clear of all Liens (other than 60 Liens (i) arising under the Securities Act and applicable state securities Laws or (ii) created or incurred by, or at the direction of, Buyer). Any disputes among the Sellers with respect to the allocation of the Purchase Price among such Sellers shall not interfere in any way with, or give rise to any claim or right upon, Buyer’s ownership of the Purchased Securities.
(b) Within ninety (90) days following the Closing Date, Seller Buyer shall prepare and deliver to Buyer a working capital statement the Seller Representative (i) an unaudited consolidated balance sheet of the Company Entities as of the close Adjustment Calculation Time (the “Closing Balance Sheet”), and (ii) a statement (the “Closing Statement”) setting forth in reasonable detail Buyer’s calculation of business the Closing Cash-on-Hand, the Closing Indebtedness, the Closing Net Working Capital and the calculation of the Purchase Price resulting therefrom, in each case, based on the Closing Date (the "CLOSING STATEMENT") setting forth the current assets minus the current liabilities of the Company (the "WORKING CAPITAL") on the basis described in Annex B, accompanied by a report from Arthur Andersen LLP; PROVIDED, HOWEVER, if the transactions contemplaxxx xx Xxxxxxx 4.11(a) or (b) occurBalance Sheet. The Closing Balance Sheet, the Closing Statement will be prepared as if Cash-on-Hand, the Com pany did not own the Dermablend Business or the National Cosmetics Business Closing Indebtedness and the Iman Business as Closing Net Working Capital shall each be calculated in accordance with the Agreed Accounting Principles and in a manner consistent with the applicable definitions contained in this Agreement. During the thirty (30) days immediately following the Seller Representative’s receipt of the Closing Date, as the case may be; PROVIDED FURTHER that if Buyer retains the Dermablend Business and, pursuant to Section 4.11(b), sells the National Cosmetics Business Balance Sheet and the Iman Business, the Dermablend Business will also include the net accounts receivable (other than the Designated Receivables (as defined in Section 4.11)), bank overdraft, accounts payable and accrued expenses related to the National Cosmetics Business and the Iman Business. Seller and its authorized representatives shall have reasonable access to all relevant books and records and employees of the Company following the Closing Date to the extent required to complete preparation of the Closing Statement, includingBuyer shall, without limitationand shall cause the Company Entities to, preparation (x) provide the Seller Representative and its Representatives with reasonable access at all reasonable times during normal business hours and upon reasonable prior notice to the books and records of the Company Entities and to senior management personnel of the Company Entities, in each case, to the extent reasonably requested by the Seller Representative or any financial reports or schedules needed to complete of its Representatives in connection with their review of the Closing Balance Sheet and the Closing Statement. , and (y) cooperate with the Seller Representative and Buyer shall split equally its Representatives in connection with their review of the cost of preparing Closing Balance Sheet and delivering the Closing Statement.
(bc) After The Closing Balance Sheet, the Closing Statement and the Closing Cash-on-Hand, the Closing Indebtedness, the Closing Net Working Capital and the Purchase Price set forth thereon shall become final and binding upon the parties hereto thirty (30) days following the Seller Representative’s receipt thereof unless the Seller Representative gives written notice of its disagreement (a “Notice of Disagreement”) to Buyer prior to such date, which notice shall describe in reasonable detail the nature of such disagreement; provided, that (i) the Closing Balance Sheet, the Closing Statement and the Closing Cash-on-Hand, the Closing Indebtedness, the Closing Net Working Capital and the Purchase Price set forth thereon shall become final and binding upon the parties hereto upon the Seller Representative’s delivery, prior to the expiration of such thirty (30)-day period, of written notice to Buyer of its acceptance of the Closing Balance Sheet, the Closing Statement and the Closing Cash-on-Hand, the Closing Indebtedness, the Closing Net Working Capital and the Purchase Price set forth thereon, (ii) except to the extent addressed by a duly delivered Notice of Disagreement prior to the expiration of such thirty (30)-day period, each component of the Closing Balance Sheet, the Closing Statement and the Closing Cash-on-Hand, the Closing Indebtedness, the Closing Net Working Capital and the Purchase Price set forth thereon, shall become final and binding upon the parties hereto upon the Seller Representative’s delivery of a Notice of Disagreement, and (iii) a Notice of Disagreement may only include disagreements based on (A) the failure of the Closing Cash-on-Hand, the Closing Indebtedness and the Closing Net Working Capital, in each case, as reflected on the Closing Statement, Buyer shall have 15 days to review it. Buyer be calculated in accordance with the Agreed Accounting Principles and its authorized representatives shall have reasonable access to Seller's accountants to in a manner consistent with the extent required to complete their review applicable definitions contained in this Agreement and/or (B) mathematical errors in the computation of the Closing Statement, including, without limitationCash-on-Hand, the accountants' work papers used in preparation thereof. Unless Buyer delivers written notice to Seller on or prior to the 15th day after receipt of Closing Indebtedness, the Closing Statement specifying Net Working Capital or the Purchase Price.
(d) If a timely Notice of Disagreement is delivered by the Seller Representative to Buyer in reasonable detail its objections to accordance with Section 1.05(c), then the Closing Statement on the grounds that Balance Sheet and the Closing Statement (i) was not prepared as revised in accordance with this Section 1.4 or (ii) contained arithmetic errors1.05(d)), and the Closing Cash-on-Hand, the Closing Indebtedness, the Closing Net Working Capital and the Purchase Price set forth thereon shall become final and binding upon the parties hereto on the earlier of (x) the date all matters specified in the Notice of Disagreement are finally resolved in writing by the Seller Representative and Buyer and (y) the date all matters specified in the Notice of Disagreement not resolved by written agreement of the Seller Representative and Buyer are finally resolved in writing by a nationally recognized accounting, consulting or valuation firm (other than a so-called “Big Four” accounting firm) mutually selected by the Seller Representative and Buyer (such firm, the “Arbiter”). The Closing Balance Sheet and the Closing Statement shall be deemed to have accepted and agreed revised to the Closing Statementextent necessary to reflect any resolution by the Seller Representative and Buyer and/or any final resolution made by the Arbiter in accordance with this Section 1.05(d). If During the thirty (30) days immediately following the delivery of a Notice of Disagreement in accordance with Section 1.05(c) or such longer period as the Seller Representative and Buyer so notifies may agree in writing, the Seller of such an objection Representative and Buyer shall seek in good faith to resolve in writing any differences that they may have with respect to the Closing Statementmatters specified in the Notice of Disagreement, and all such discussions related thereto shall (unless otherwise agreed by Buyer and the parties shall within 15 days following Seller Representative) be governed by Rule 408 of the Federal Rules of Evidence (as in effect as of the date of such notice (the "RESOLUTION PERIOD") attempt to resolve their differences.
(c) this Agreement). At the conclusion end of such thirty (30)-day period or such agreed-upon longer period, the Seller Representative and Buyer shall submit to the Arbiter for review and resolution any and all matters (but only such matters) which remain in dispute and which were properly included in the Notice of Disagreement. Buyer and the Seller Representative shall instruct the Arbiter to, and the Arbiter shall, make a final determination of the Resolution Perioditems included in the Closing Balance Sheet and the Closing Statement (to the extent such amounts are properly in dispute) in accordance with the guidelines and procedures set forth in this Agreement. Buyer and the Seller Representative will cooperate with the Arbiter during the term of its engagement. Buyer and the Seller Representative shall instruct the Arbiter not to, and the Arbiter shall not, assign a value to any amounts remaining item in dispute greater than the greatest value for such item assigned by Buyer, on the one hand, or the Seller Representative, on the other hand, or less than the smallest value for such item assigned by Buyer, on the one hand, or the Seller Representative, on the other hand. Buyer and the Seller Representative shall also instruct the Arbiter to, and the Arbiter shall, at make its determination based solely on written presentations by Buyer and the election Seller Representative that are in accordance with the guidelines and procedures set forth in this Agreement and not on the basis of either party, be submitted to Price Waterhouse (the "NEUTRAL AUDITOR")an independent review. The Neutral Auditor Closing Balance Sheet, the Closing Statement and the Closing Cash-on-Hand, the Closing Indebtedness, the Closing Net Working Capital and the Purchase Price set forth thereon shall become final and binding on the parties hereto on the date the Arbiter delivers its final resolution in writing to Buyer and the Seller Representative (which final resolution shall be engaged within five days after an election by either party to submit its objections to the Neutral Auditor, and each party agrees to execute, if requested by the Neutral Auditorparties to be delivered not more than thirty (30) days following submission of such disputed matters), and such resolution by the Arbiter shall not be subject to court review or otherwise appealable, absent manifest error or manifest failure by the Arbiter to adhere to the requirements of this Agreement. The Seller Representative (on behalf of the Sellers) shall pay a reasonable engagement letter. All portion of the fees and expenses of the Neutral Auditor Arbiter equal to the percentage by which the portion of the disputed amounts in the Seller Representative’s submission to the Arbiter not awarded to the Seller Representative bears to the aggregate amount actually disputed by the Seller Representative in the Seller Representative’s submission to the Arbiter, and the Company shall pay the remaining portion of such fees and expenses.
(e) If the Estimated Purchase Price is less than the Purchase Price (such shortfall, the “Adjustment Amount”), then (i) Buyer shall, within two (2) Business Days after the Closing Balance Sheet, the Closing Statement and the Closing Cash-on-Hand, Closing Indebtedness, Closing Net Working Capital and the Purchase Price set forth thereon become final and binding on the parties pursuant to this Section 1.05, make payment of the Adjustment Amount, by wire transfer in immediately available funds (or other alternative delivery arrangement mutually agreed by the Seller Representative and Buyer in writing) to, or as directed by, the Seller Representative, and (ii) Buyer and the Seller Representative shall, within two (2) Business Days after the Closing Balance Sheet, the Closing Statement and the Closing Cash-on-Hand, Closing Indebtedness, Closing Net Working Capital and the Purchase Price set forth thereon become final and binding on the parties pursuant to this Section 1.05, deliver joint written instructions to the Escrow Agent to cause the Escrow Agent to make payment of the Escrow Funds from the Escrow Account, within two (2) Business Days after receipt of such instructions, to, or as directed by, the Seller Representative.
(f) If the Estimated Purchase Price is greater than the Purchase Price (such excess, the “Excess Amount”), then Buyer and the Seller Representative shall, within two (2) Business Days after the Closing Balance Sheet, the Closing Statement and the Closing Cash-on-Hand, Closing Indebtedness, Closing Net Working Capital and the Purchase Price set forth thereon become final and binding on the parties pursuant to this Section 1.05, deliver joint written instructions to the Escrow Agent to cause the Escrow Agent to make payment, within two (2) Business Days after receipt of such instructions, to Buyer, by wire transfer in immediately available funds of the Excess Amount from the Escrow Funds in the Escrow Account. If the Excess Amount is less than the Escrow Funds (such shortfall, the “Remaining Escrow Funds”), then Buyer and the Seller Representative shall, simultaneously with the delivery of the joint written instructions referred to in the immediately preceding sentence, deliver joint written instructions to the Escrow Agent to cause the Escrow Agent to pay the Remaining Escrow Funds from the Escrow Account to, or as directed by, the Seller Representative.
(g) Buyer agrees that (i) the payment of the Excess Amount (if any) from the Escrow Funds in the Escrow Account in accordance with the Escrow Agreement shall be borne equally by Seller the sole and Buyer. The Neutral Auditor shall act as an arbitrator to determine, based solely on the written presentations by Seller exclusive remedy and source of recovery for Buyer made within 15 days for payment of the Neutral Auditor's engagement or such other reasonable period of time to which Excess Amount (if any) and (ii) the parties agree, purchase price adjustment and not by independent review, only those issues still the dispute resolution provisions provided for in dispute. The Neutral Auditor's determination shall be made within 30 days after Seller's and Buyer's written presentations have been madethis Section 1.05, shall be set forth in a written statement delivered to Seller the exclusive remedies for the matters addressed or that could be addressed by this Section 1.05. For the avoidance of doubt, and without limiting the generality of the foregoing, no claim by Buyer and for the payment of the Excess Amount (or any portion thereof) shall be final, binding, conclusive and nonappealable. The term "FINAL CLOSING STATEMENT" shall mean asserted against any of the definitive Closing Statement agreed Seller Parties.
(h) Any payment made pursuant to by Seller and Buyer in accordance with Section 1.4(b) or the definitive Closing Statement resulting from the determination made by the Neutral Auditor in accordance with this Section 1.4(c) (in addition 1.05 shall be treated as an adjustment to those items theretofore agreed to by Seller and Buyer)the Purchase Price for U.S. federal income tax purposes.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Caci International Inc /De/)
Purchase Price Adjustment. (a) As soon as practicable but not later than Within 60 days following after the Closing Date, Seller Buyer shall prepare and deliver to Buyer MagneTek a working capital statement balance sheet of the Brownsville Business and Coil Company as described in Section 2.5(b) below (the "Closing Balance Sheet") and schedules (the "Cash Schedules") detailing (i) (A) as to the Brownsville Business and Coil Company, cash generated during the period from and including June 18, 1995 and (B) as to Glasmax, from and including July 3, 1995, in each case through and including the Closing Date, including all uncashed checks received by the Brownsville Business, Coil Company and Glasmax during the respective covered periods ("Generated Cash") and (ii) (A) as to the Brownsville Business and Coil Company, and (B) as to Glasmex, in each case during the respective covered periods, all cash used during the applicable period, including all uncashed checks issued by the relevant Person during the applicable period, but excluding any intercompany payments or allocations other than in direct payment of goods or services ("Expended Cash"). For purposes of preparing the Closing Balance Sheet, Sellers shall make their accounting personnel available to Buyer (without charge) and such employees shall, for the purpose of assisting Buyer in preparing the Closing Balance Sheet and Cash Schedule, be instructed by Sellers to act at Buyer's direction. During the 30 days immediately following MagneTek's receipt of the close Closing Balance Sheet and Cash Schedule, MagneTek shall be entitled to review the Closing Balance Sheet and Cash Schedule and Buyer's working papers relating to the Closing Balance Sheet and Cash Schedule, and Buyer shall provide MagneTek access at all reasonable times to its personnel, properties, books and records to the extent relevant. The Closing Balance Sheet and Cash Schedule shall become final and binding upon the parties on the thirtieth day following delivery thereof unless MagneTek gives written notice to Buyer of business its disagreement with the Closing Balance Sheet or Cash Schedule (a "Notice of Disagreement") prior to such date. Any Notice of Disagreement shall specify in reasonable detail the nature of any disagreement so asserted. If a timely Notice of Disagreement is received by Buyer with respect to the Closing Balance Sheet or Cash Schedule, then the Closing Balance Sheet or Cash Schedule (as revised in accordance with clause (x) or (y) below), shall become final and binding upon the parties on the earlier of (x) the date the parties hereto resolve in writing any differences they have with respect to any matter specified in a Notice of Disagreement or (y) the date any matters properly in dispute are finally resolved in writing by the Accounting Firm (as defined below). During the 30 days immediately following the delivery of any Notice of Disagreement, MagneTek and Buyer shall seek in good faith to resolve in writing any differences which they may have with respect to any matter specified in such Notice of Disagreement. During such period, Buyer and MagneTek shall each have access to the other party's working papers prepared in connection with the other party's preparation of a Notice of Disagreement. At the end of such 30-day period, MagneTek and Buyer shall submit to an independent accounting firm (the "Accounting Firm") for review and resolution any and all matters which remain in dispute and which were properly included in any Notice of Disagreement, and the Accounting Firm shall reach a final, binding resolution of all matters which remain in dispute. The Closing Balance Sheet and Cash Schedule, with such adjustments necessary to reflect the Accounting Firm's resolution of the matters in dispute, shall become final and binding on Buyer and MagneTek on the date the Accounting Firm delivers its final resolution to the parties. The Accounting Firm shall be such nationally recognized independent public accounting firm with offices in Nashville, Tennessee, and Columbus, Ohio, as shall be agreed upon by the parties hereto in writing. The cost of any arbitration (including the fees and expenses of the Accounting Firm) pursuant to this Section 2.5 shall be borne 50% by Buyer and 50% by MagneTek.
(b) The Closing Balance Sheet shall be prepared in accordance with GAAP, applied in a manner consistent with that followed in the preparation of the June Balance Sheets, and shall be identical to the June Balance Sheets except insofar as any one or more of the following adjustments is not reflected upon the June Balance Sheets:
(i) the Closing Balance Sheet shall not reflect any provision for Taxes (whether as an asset or a liability);
(ii) intercompany advances shall be eliminated;
(iii) inventory shall be valued on a first-in, first-out basis;
(iv) all Excluded Assets (and all related depreciation and reserves) shall be eliminated and all Excluded Liabilities (and related reserves) shall be eliminated;
(v) the Closing Balance Sheet shall reflect a special reserve (the "Special Reserve") in an aggregate amount of $274,000, reflecting Sellers' sole and complete liability and obligation to Buyer in respect of all of the following:
(A) Severance payments that are or may become due to any employees of Coil Company or Glasmex;
(B) Certain Glasmex inventory described in Schedule 2.5; and
(C) The additional matters described in Schedule 2.5. The Special Reserve shall apply to reduce the Purchase Price, but in the event the actual liabilities associated with such Reserve exceed the amount thereof, Buyer shall have no claim against Sellers and conversely, if the actual amount of the Special Reserve exceeds the associated liabilities, Buyer shall not be required to pay any additional purchase price to Sellers;
(vi) The inventory associated with the warranty obligation under the Alcan Agreement (currently having a book value of approximately U.S. $380,000) shall be excluded from the Closing Balance Sheet; provided, however, that such inventory comprises part of the Assets, and subject to Section 8.9 hereof; and
(vii) All copper inventory that is "tolled" at Southwire Company and Westinghouse Wire Corporation shall be included on the Closing Balance Sheet;
(c) The Purchase Price shall be adjusted (after giving effect to the estimation, if any, reflected in the Closing Date Amount) such that the Purchase Price is (i) increased, to the "CLOSING STATEMENT"extent that the Cash Schedules in the aggregate show a net excess of Expended Cash over Generated Cash, and (ii) setting forth decreased, to the current assets minus extent that the current liabilities Cash Schedules in the aggregate show a net excess of the Company (the "WORKING CAPITAL") on the basis described Generated Cash over Expended Cash. The Purchase Price shall be adjusted upward or downward, dollar for dollar, in Annex B, accompanied by a report from Arthur Andersen LLPrespect of any such negative or positive adjustment; PROVIDED, HOWEVER, if that the transactions contemplaxxx xx Xxxxxxx 4.11(a) or (b) occur, estimated adjustment paid on the Closing Statement Date shall be taken into account in determining whether such threshold is met. Any required adjustment to the Purchase Price pursuant to this Section 2.5 shall be referred to as the "Purchase Price Adjustment."
(d) Buyer agrees, with respect to Purchase Price Adjustments, that following the Closing, Buyer will not take any actions with respect to the accounting books, records, policies and procedures of the Brownsville Business on which the Closing Balance Sheet is to be prepared as if based that are not consistent with GAAP applied in the Com pany did not own manner consistent with the Dermablend Business or past practices of the National Cosmetics Business and Brownsville Business.
(e) Within thirty days after the Iman Business as receipt by MagneTek of the Closing DateBalance Sheet and Cash Schedules in accordance with Section 2.5(a) hereof, Buyer shall remit to Sellers or Sellers shall remit to Buyer, as the case may be; PROVIDED FURTHER , in immediately available funds, any undisputed amounts constituting Purchase Price Adjustments. With respect to any items that if Buyer retains are the Dermablend Business andsubject of a Notice of Disagreement, payment shall be made in immediately available funds within three business days after the resolution thereof pursuant to Section 4.11(b2.5(a), sells . Each payment pursuant to this Section 2.5 shall be made with interest on the National Cosmetics Business and amount of the Iman Business, the Dermablend Business will also include the net accounts receivable (other than the Designated Receivables (as defined in Section 4.11)), bank overdraft, accounts payable and accrued expenses related payment at an annual rate equal to the National Cosmetics Business and reference rate quoted by the Iman Business. Seller and its authorized representatives shall have reasonable access to all relevant books and records and employees San Xxxxxxxxx xxxxxx of Bank of America on the Company following Closing Date for the period from the Closing Date to the extent required to complete preparation date of the Closing Statementpayment, including, without limitation, preparation of any financial reports or schedules needed to complete the Closing Statement. Seller and Buyer shall split equally the cost of preparing and delivering the Closing Statement.
(b) After receipt of the Closing Statement, Buyer shall have 15 days to review it. Buyer and its authorized representatives shall have reasonable access to Seller's accountants to the extent required to complete their review of the Closing Statement, including, without limitation, the accountants' work papers used in preparation thereof. Unless Buyer delivers written notice to Seller on or prior to the 15th day after receipt of the Closing Statement specifying in reasonable detail its objections to the Closing Statement computed on the grounds that the Closing Statement (i) was not prepared in accordance with this Section 1.4 or (ii) contained arithmetic errors, the parties shall be deemed to have accepted basis of a 360-day year and agreed to the Closing Statement. If Buyer so notifies Seller of such an objection to the Closing Statement, the parties shall within 15 actual days following the date of such notice (the "RESOLUTION PERIOD") attempt to resolve their differenceselapsed.
(c) At the conclusion of the Resolution Period, any amounts remaining in dispute shall, at the election of either party, be submitted to Price Waterhouse (the "NEUTRAL AUDITOR"). The Neutral Auditor shall be engaged within five days after an election by either party to submit its objections to the Neutral Auditor, and each party agrees to execute, if requested by the Neutral Auditor, a reasonable engagement letter. All fees and expenses of the Neutral Auditor shall be borne equally by Seller and Buyer. The Neutral Auditor shall act as an arbitrator to determine, based solely on the written presentations by Seller and Buyer made within 15 days of the Neutral Auditor's engagement or such other reasonable period of time to which the parties agree, and not by independent review, only those issues still in dispute. The Neutral Auditor's determination shall be made within 30 days after Seller's and Buyer's written presentations have been made, shall be set forth in a written statement delivered to Seller and Buyer and shall be final, binding, conclusive and nonappealable. The term "FINAL CLOSING STATEMENT" shall mean the definitive Closing Statement agreed to by Seller and Buyer in accordance with Section 1.4(b) or the definitive Closing Statement resulting from the determination made by the Neutral Auditor in accordance with this Section 1.4(c) (in addition to those items theretofore agreed to by Seller and Buyer).
Appears in 1 contract
Purchase Price Adjustment. (a) As soon as practicable but not No later than 60 ten (10) days following the execution of this Agreement, Seller shall provide a draft statement of financial position, which includes, without limitation, an accurate balance sheet reflecting Company’s Actual Working Capital, and Seller’s good faith calculations reflecting the Working Capital Adjustment (if any) (the “Draft Statement of Financial Position”). No later than ten (10) days following the Closing Date, Seller shall prepare and deliver to Buyer provide a working capital second draft statement of the Company as of the close of business on the Closing Date financial position (the "CLOSING STATEMENT"“Second Draft Statement of Financial Position”) setting forth to Buyer. Xxxxx agrees and acknowledges that the current assets minus the current liabilities final statement of the Company financial position (the "WORKING CAPITAL"“Final Statement of Financial Position”) on the basis described in Annex B, accompanied by may take up to a report from Arthur Andersen LLP; PROVIDED, HOWEVER, if the transactions contemplaxxx xx Xxxxxxx 4.11(a) year or (b) occur, the Closing Statement will be prepared as if the Com pany did not own the Dermablend Business or the National Cosmetics Business and the Iman Business as of the Closing Date, as the case may be; PROVIDED FURTHER that if Buyer retains the Dermablend Business and, pursuant to Section 4.11(b), sells the National Cosmetics Business and the Iman Business, the Dermablend Business will also include the net accounts receivable (other than the Designated Receivables (as defined in Section 4.11)), bank overdraft, accounts payable and accrued expenses related to the National Cosmetics Business and the Iman Business. Seller and its authorized representatives shall have reasonable access to all relevant books and records and employees of the Company more following the Closing Date to be determined as it will involve income tax calculations that depend on full-tax-year inputs to properly pro-rate income taxes due by Company up to the extent required to complete preparation execution date of the Closing Statement, including, without limitation, preparation of any financial reports or schedules needed to complete the Closing Statement. Seller and Buyer shall split equally the cost of preparing and delivering the Closing Statementthis Agreement.
(b) After Upon receipt of the Closing StatementFinal Statement of Financial Position, Buyer shall have 15 review same for accuracy. No later than ninety (90) days to review it. following Xxxxx’s receipt of the Final Statement of Financial Position, Buyer shall prepare and its authorized representatives shall have reasonable access to Seller's accountants deliver to the extent required to complete their review Seller an adjusted Final Statement of the Closing StatementFinancial Position, includingwhich shall include, without limitation, an adjusted balance sheet reflecting Buyer’s good faith determination of Company’s Actual Working Capital and Buyer’s good faith calculations reflecting the accountants' work papers used in preparation thereofWorking Capital Adjustment (if any). Unless Buyer delivers written notice Failure to deliver to Seller on or prior to the 15th such adjusted Final Statement of Financial Position within such ninety (90) day after receipt period shall be Buyer’s acceptance of the Closing Final Statement specifying in reasonable detail its objections of Financial Position and an irrevocable waiver of any right to the Closing Statement on the grounds that the Closing Statement (i) was not prepared in accordance with this Section 1.4 or (ii) contained arithmetic errors, the parties shall be deemed to have accepted and agreed to the Closing Statement. If Buyer so notifies Seller of such an objection to the Closing Statement, the parties shall within 15 days following the date of such notice (the "RESOLUTION PERIOD") attempt to resolve their differencesobject thereto.
(c) At The Seller shall have thirty (30) days following the conclusion Seller’s receipt of the Resolution Periodadjusted Final Statement of Financial Position to deliver to Buyer any objections. Failure to deliver such notice within such thirty (30) day period, shall be deemed to be Seller’s acceptance thereof and irrevocable waiver of any amounts remaining right to object thereto. If Seller timely deliver such written objections (a “Dispute Notice”), which Dispute Notice specifies in dispute shallreasonable detail the nature and dollar amount of any disagreement so asserted (collectively, the “Disputed Items”), then, during the fifteen (15) days following Xxxxx’s receipt of a Dispute Notice, Buyer and Seller shall diligently attempt to resolve in writing the Disputed Items. Any Disputed Item resolved in writing by Xxxxx and Seller will be deemed final, binding and conclusive on Buyer and the Seller.
(d) In the event that Buyer and Seller do not reach an agreement on all of the Disputed Items during such fifteen (15) day period (or such longer period as they shall mutually agree), then, at the election end of either partysuch period, be submitted Buyer and Seller shall submit all unresolved Disputed Items (collectively, the “Unresolved Items”) to Price Waterhouse an accounting firm mutually acceptable to the Parties (the "NEUTRAL AUDITOR")“Accounting Referee”) to review and resolve such matters. The Neutral Auditor Accounting Referee’s determination of the Unresolved Items shall be engaged within five days after an election by either party to submit its objections to final, binding and conclusive on Buyer and the Neutral AuditorSeller, absent manifest errors on all Parties, and each party agrees to executeenforceable before a Governmental Authority, if requested effective as of the date the Accounting Referee’s written determination is received by Xxxxx and Seller. Each of Buyer and the Neutral AuditorSeller will bear their own legal, a reasonable engagement letteraccounting and other fees and expenses of participating in such dispute resolution procedure. All The fees and expenses of the Neutral Auditor Accounting Referee shall be borne split equally by between Xxxxx and Seller.
(e) Upon final determination that the Actual Working Capital is less than the Target Working Capital (the actual amount, the “Shortfall Amount”), then Seller and Buyer. The Neutral Auditor shall act as an arbitrator pay such Shortfall Amount to determine, based solely on the written presentations by Seller and Buyer made via wire transfer of immediately available funds within 15 fifteen (15) days of the Neutral Auditor's engagement final determination of the Shortfall Amount.
(f) Upon final determination that the Actual Working Capital is equal to or such other reasonable period exceeds the Target Working Capital (the actual amount, the “Excess Amount”), then Buyer shall pay the Excess Amount to Seller via wire transfer of time immediately available funds within thirty (30) days of the final determination of the Excess Amount. Notwithstanding anything to which the parties agree, and not by independent review, only those issues still in dispute. The Neutral Auditor's determination shall be made within 30 days after Seller's and Buyer's written presentations have been made, shall be contrary as set forth herein, in a written statement delivered the event the Excess Amount exceeds Fifty Thousand and 00/100 US Dollars ($50,000.00) but is less than One Hundred Fifty Thousand and 00/100 US Dollars ($150,000.00), Buyer shall have an additional ninety (90) days to Seller pay such Excess Amount. In the event the Excess Amount exceeds One Hundred Fifty Thousand and 00/100 US Dollars ($150,000.00), Buyer and shall be final, binding, conclusive and nonappealable. The term "FINAL CLOSING STATEMENT" shall mean the definitive Closing Statement agreed have up to by Seller and Buyer in accordance with Section 1.4(bone (1) or the definitive Closing Statement resulting from the determination made by the Neutral Auditor in accordance with this Section 1.4(c) (in addition year to those items theretofore agreed to by Seller and Buyer)pay such Excess Amount.
Appears in 1 contract
Samples: Membership Interest Purchase Agreement (Body & Mind Inc.)
Purchase Price Adjustment. (a) As soon as practicable but and in any event not later than 60 sixty (60) days following after the Closing Date, Seller the Sellers shall cause Ernst & Young LLP, or such other nationally recognized independent accounting firm chosen by the Sellers, at the expense of the Transferred Companies, to prepare and deliver to the Sellers and the Buyer a working capital statement of the Company balance sheet for Ply Gem as of the close of business on immediately prior to the Closing Date (the "CLOSING BALANCE SHEET"), together with a statement (the "STATEMENT") setting forth in reasonable detail the current assets minus the current liabilities determination of the Company Net Working Capital of Ply Gem based upon amounts set forth on the Closing Balance Sheet (the "CLOSING NET WORKING CAPITAL") on ). The Buyer shall cause the basis described in Annex B, accompanied by a report from Arthur Andersen LLP; PROVIDED, HOWEVER, if Transferred Companies to give the transactions contemplaxxx xx Xxxxxxx 4.11(a) or (b) occur, the Closing Statement will be prepared as if the Com pany did not own the Dermablend Business or the National Cosmetics Business Sellers and the Iman Business as of the Closing Date, as the case may be; PROVIDED FURTHER that if Buyer retains the Dermablend Business and, pursuant to Section 4.11(b), sells the National Cosmetics Business and the Iman Business, the Dermablend Business will also include the net accounts receivable (other than the Designated Receivables (as defined in Section 4.11)), bank overdraft, accounts payable and accrued expenses related to the National Cosmetics Business and the Iman Business. Seller and its their authorized representatives shall have reasonable access to all relevant books books, records, personnel, offices and records other facilities and employees properties of the Company following Transferred Companies and their accountants as the Sellers may require to prepare the Closing Date to Balance Sheet and the extent required to complete Statement. The Closing Balance Sheet and the Statement shall be prepared in accordance with GAAP, applied in a manner consistent with the preparation of the Financial Statements. The Closing StatementBalance Sheet and the Statement shall be final and binding on the Buyer and the Sellers, including, without limitation, preparation subject to the process of any financial reports or schedules needed to complete the Closing Statement. Seller and Buyer shall split equally the cost of preparing and delivering the Closing Statementobjection provided in this Section 1.4 below.
(b) After receipt The Buyer may dispute the amounts reflected on the Closing Balance Sheet and Statement, but only on the basis that (1) the Closing Balance Sheet and the Statement have not been prepared in accordance with the provisions of Section 1.4(a) or (2) there has been an error in mathematical calculation relating to the Statement. If the Buyer disagrees with the amount of the Closing Net Working Capital on such basis, the Buyer may, within thirty (30) days after the deliveries of the Closing Balance Sheet and the Statement, deliver a notice to the Sellers (the "DISPUTE NOTICE") setting forth the Buyer's calculation of the Closing Net Working Capital and specifying, in reasonable detail, those items or amounts in the Closing Balance Sheet and Statement affecting the calculation of the Closing Net Working Capital as to which it disagrees and the reasons for such disagreement. If prior to the conclusion of such 30-day period the Buyer notifies the Sellers in writing that it will not provide any Dispute Notice or if no Dispute Notice is delivered within such 30-day period, the Closing Net Working Capital, as set forth on the Statement, shall become final, conclusive and binding on the parties hereto for all purposes of this Section 1.4.
(c) If the Buyer delivers a Dispute Notice to the Sellers within the 30-day period described above, the parties shall use reasonable efforts to reach agreement on the disputed items or amounts in order to determine the Closing Net Working Capital. If the Sellers and the Buyer do not resolve all disputed items or amounts set forth in the Dispute Notice within fifteen (15) days after delivery of a Dispute Notice, the remaining disputed items and amounts will be submitted to a nationally recognized independent accounting firm in the U.S. mutually agreed to by the Buyer and the Sellers (the "INDEPENDENT ACCOUNTANTS") for resolution of such disputed items and amounts. The parties will have the opportunity to present their positions with respect to such disputed items and amounts to the Independent Accountants, and such disputed items and amounts shall be resolved by the Independent Accountants in accordance with the requirements of Section 1.4(a). The Independent Accountants shall prepare a written report setting forth the resolution of such disputed items and amounts and calculating the revised amount of Closing Net Working Capital, which shall be delivered to each of the Sellers and the Buyer promptly, but in no event later than thirty (30) days after such disputed items and amounts are submitted to the Independent Accountants. Such revised amount of Closing Net Working Capital shall not reflect any difference from the amount of Closing Net Working Capital set forth on the Statement other than differences required to reflect the resolution of such disputed items and amounts by the Independent Accountants. The revised amount of Closing Net Working Capital set forth on the Independent Accountants' written report shall be final, conclusive and binding upon the Sellers and the Buyer. The procedures set forth in this Agreement for resolution of disputes concerning the Closing Net Working Capital shall be final and binding on all of the parties, and shall not be subject to appeal of any kind. The fees and disbursements of the Independent Accountants shall be allocated between the Buyer, on the one hand, and the Sellers, on the other hand, such that the Buyer's share of such fees and disbursements shall be in the same proportion that the aggregate amount of the disputed items and amounts submitted by the Buyer to the Independent Accountants that are unsuccessfully disputed by the Buyer (as finally determined by the Independent Accountants) bears to the total amount of such disputed items and amounts so submitted by the Buyer to the Independent Accountants. Each of the Sellers and the Buyer shall have 15 days execute a reasonably acceptable engagement letter, if requested to review it. Buyer do so by the Independent Accountants, and its authorized representatives shall have provide reasonable access to Seller's accountants their respective employees who are responsible for financial matters and in the case of the Buyer, to the extent required to complete their review books and records of the Closing Statement, including, without limitation, the accountants' work papers used in preparation thereof. Unless Buyer delivers written notice to Seller on or prior to the 15th day after receipt of Transferred Companies.
(d) If the Closing Statement specifying in reasonable detail its objections to the Closing Statement on the grounds that the Closing Statement (i) was not prepared Net Working Capital, as finally determined in accordance with this Section 1.4 or (ii) contained arithmetic errors1.4, the parties shall be deemed to have accepted and agreed to the Closing Statement. If Buyer so notifies Seller of such an objection to the Closing Statement, the parties shall within 15 days following the date of such notice is less than $47,668,000 (the "RESOLUTION PERIODTARGET NET WORKING CAPITAL"), the Sellers shall pay, within five (5) attempt to resolve their differences.
(c) At business days after the conclusion final determination of the Resolution PeriodClosing Net Working Capital, any amounts remaining in dispute shall, at the election of either party, be submitted to Price Waterhouse (the "NEUTRAL AUDITOR"). The Neutral Auditor shall be engaged within five days after an election by either party to submit its objections amount to the Neutral AuditorBuyer equal to such difference. If the Closing Net Working Capital, and each party agrees to execute, if requested by the Neutral Auditor, a reasonable engagement letter. All fees and expenses of the Neutral Auditor shall be borne equally by Seller and Buyer. The Neutral Auditor shall act as an arbitrator to determine, based solely on the written presentations by Seller and Buyer made within 15 days of the Neutral Auditor's engagement or such other reasonable period of time to which the parties agree, and not by independent review, only those issues still in dispute. The Neutral Auditor's determination shall be made within 30 days after Seller's and Buyer's written presentations have been made, shall be set forth in a written statement delivered to Seller and Buyer and shall be final, binding, conclusive and nonappealable. The term "FINAL CLOSING STATEMENT" shall mean the definitive Closing Statement agreed to by Seller and Buyer in accordance with Section 1.4(b) or the definitive Closing Statement resulting from the determination made by the Neutral Auditor finally determined in accordance with this Section 1.4(c1.4, is more than the Target Net Working Capital, the Buyer shall pay, within five (5) (in addition business days after the final determination of the Closing Net Working Capital, an amount to those items theretofore agreed WDS equal to such difference. Any payment made pursuant to this Section 1.4 shall be made by Seller wire transfer of immediately available funds to an account designated by the payee, and Buyer)shall be deemed by the parties to be an adjustment to the Purchase Price. The amount of any such payment due under this Section 1.4(d) shall bear interest at the rate of 6% per annum from and including the Closing Date through the date of payment.
Appears in 1 contract
Purchase Price Adjustment. (a) As soon as practicable but not later than 60 Within ninety (90) days following after the Closing Date, Seller Buyer shall prepare and deliver to Buyer the Sellers’ Representative a working capital statement of certificate substantially in the Company as of the close of business on the Closing Date form set forth in Exhibit C (the "CLOSING STATEMENT") setting forth the current assets minus the current liabilities of the Company (the "WORKING CAPITAL") on the basis described in Annex B, accompanied by a report from Arthur Andersen LLP; PROVIDED, HOWEVER, if the transactions contemplaxxx xx Xxxxxxx 4.11(a) or (b) occur, the “Preliminary Closing Statement will be prepared as if the Com pany did not own the Dermablend Business or the National Cosmetics Business and the Iman Business as of the Closing Date, as the case may be; PROVIDED FURTHER that if Buyer retains the Dermablend Business and, pursuant to Section 4.11(bStatement”), sells signed by the National Cosmetics Business and the Iman BusinessBuyer, the Dermablend Business will also include the net accounts receivable (other than the Designated Receivables (as defined in Section 4.11)), bank overdraft, accounts payable and accrued expenses related to the National Cosmetics Business and the Iman Business. Seller and which sets forth its authorized representatives shall have reasonable access to all relevant books and records and employees calculation of the Company following the Closing Date to the extent required to complete preparation of the Closing Statement, including, without limitation, preparation of any financial reports or schedules needed to complete the Closing Statement. Seller and Buyer shall split equally the cost of preparing and delivering the Closing StatementWorking Capital.
(b) After receipt Sellers’ Representative shall have a period of thirty (30) days after the date she receives the Preliminary Closing Statement from Buyer to deliver to Buyer written notice of Sellers’ disagreement with any item contained in the Preliminary Closing Statement, which notice shall set forth in reasonable detail the basis for such disagreement (a “Notice of Disagreement”). Until the final determination of the Final Closing Statement, Buyer shall have 15 days (i) permit Sellers’ Representative and her accountants to review it. Buyer consult with Buyer’s accountants and its authorized representatives shall have (ii) provide to Sellers’ Representative and her accountants reasonable access during business hours and under reasonable circumstances to Seller's accountants relevant books and records relating to the extent required to complete their preparation of the Preliminary Closing Statement, in each case as reasonably requested by Sellers’ Representative in connection with Sellers’ Representative’s review of the Preliminary Closing Statement. During the thirty (30) days following Buyer’s receipt of a Notice of Disagreement, includingBuyer and Sellers’ Representative shall seek in good faith to resolve in writing any differences which they have with respect to the matters specified in the Notice of Disagreement, without limitationand upon such resolution, the accountants' work papers used in preparation thereof. Unless Buyer delivers written notice to Seller on or prior to and Sellers’ Representative shall prepare a final statement (the 15th day after receipt of “Final Closing Statement”) setting forth the Closing Statement specifying in reasonable detail its objections to Working Capital and the Closing Statement on the grounds that the Closing Statement (i) was not prepared Net Working Capital Deficit, if any, in accordance with this Section 1.4 or (ii) contained arithmetic errors, the parties shall be deemed to have accepted agreement of Buyer and agreed to the Closing Statement. If Buyer so notifies Seller of such an objection to the Closing Statement, the parties shall within 15 days following the date of such notice (the "RESOLUTION PERIOD") attempt to resolve their differencesSellers’ Representative.
(c) At If Buyer and Sellers’ Representative are unable to resolve the conclusion disputed items set forth in the Notice of the Resolution PeriodDisagreement within thirty (30) days following Buyer’s receipt of such Notice of Disagreement (or such longer period as Buyer and Sellers’ Representative may mutually agree in writing), any amounts remaining in such dispute shall, at the election of either party, shall be submitted to Price Waterhouse (the "NEUTRAL AUDITOR"). The Neutral Auditor to, and all issues having a bearing on such dispute shall be engaged resolved by, (i) Xxxxx Xxxxxxxx or (ii) in the event such accounting firm is unable or unwilling to take such assignment, a nationally recognized accounting firm mutually agreed upon by Buyer and Sellers’ Representative or, if Buyer and Sellers’ Representative cannot agree on an accounting firm within forty-five (45) days after an election timely delivery of a Notice of Disagreement, each of Buyer and Sellers’ Representative shall select a nationally recognized accounting firm and such two accounting firms shall designate a third nationally recognized accounting firm that neither presently is, nor in the past three years has been, engaged by either party or any Affiliate of such party. Xxxxx Xxxxxxxx, the accounting firm so agreed to submit by Buyer and Sellers’ Representative or the third accounting firm so selected by the two accounting firms is hereinafter referred to as the “Independent Accountant”. Buyer and Sellers’ Representative shall instruct the Independent Accountant to select one of its objections partners experienced in purchase price adjustment disputes to make a final determination of Net Working Capital and the Net Working Capital Deficit, if any, calculated with reference to the Neutral Auditoritems that are in dispute as set forth in the Notice of Disagreement. Buyer and Sellers’ Representative shall instruct the Independent Accountant that, in resolving the items in the Notice of Disagreement that are still in dispute and in determining the Net Working Capital, the Independent Accountant shall (i) not assign to any item in dispute a value that is (A) greater than the greatest value for such item assigned by Buyer, on the one hand, or Sellers’ Representative, on the other hand, or (B) less than the smallest value for such item assigned by Buyer, on the one hand, or Sellers’ Representative, on the other hand, (ii) make its determination based on an independent review (which will be in accordance with the guidelines and procedures set forth in this Agreement), and each party agrees (iii) render a final resolution in writing to executeBuyer and Sellers’ Representative (which final resolution shall be requested by Buyer and Sellers’ Representative to be delivered not more than forty-five (45) days following submission of such disputed matters), which, absent manifest error, shall be final, conclusive and binding on the parties with respect to the Closing Working Capital and the Net Working Capital Deficit, if requested by the Neutral Auditorany. The costs, a reasonable engagement letter. All fees and expenses of the Neutral Auditor Independent Accountant shall be borne equally by Seller Buyer, on one hand, and Buyer. The Neutral Auditor shall act as an arbitrator to determineSellers, based solely on the written presentations other hand.
(d) The Preliminary Closing Statement (as revised in accordance with clause (ii) or (iii) below, if applicable) shall become the Final Closing Statement and be final for the purposes of this Section 2.05 upon the earliest of (i) the failure of Sellers’ Representative to deliver a Notice of Disagreement to Buyer within thirty (30) days after Sellers’ Representative receives the Preliminary Closing Statement, (ii) the resolution of all disputes, pursuant to Section 2.05(b), by Seller Buyer and Buyer made within 15 days Sellers’ Representative and (iii) the resolution of all disputes, pursuant to Section 2.05(c), by the Independent Accountant.
(e) Within five (5) Business Days following the determination of the Neutral Auditor's engagement or such other reasonable period of time to which the parties agreeFinal Closing Statement, and not by independent review, only those issues still in dispute. The Neutral Auditor's determination shall be made within 30 days after Seller's and Buyer's written presentations have been made, shall be set forth in a written statement delivered to Seller and Buyer and shall be final, binding, conclusive and nonappealable. The term "FINAL CLOSING STATEMENT" shall mean the definitive Closing Statement agreed to by Seller and Buyer in accordance with Section 1.4(b2.05(d), (i) or if there is a Net Working Capital Deficit, then (A) Buyer and Sellers’ Representative shall deliver joint written instructions to the definitive Closing Statement resulting Escrow Agent to cause the Escrow Agent to (I) make payment of an amount equal to the Net Working Capital Deficit from the determination made by Adjustment Escrow Amount to Buyer, and (II) if any funds remain of the Neutral Auditor Adjustment Escrow Amount, make payment of an amount equal to such remaining funds from the Adjustment Escrow Amount, to Sellers in accordance with each Seller’s Pro Rata Percentage of such remaining funds, and (B) if the Net Working Capital Deficit is greater than the Adjustment Escrow Amount, Sellers shall pay to Buyer an amount equal to the Net Working Capital Deficit minus the Adjustment Escrow Amount; (ii) if the Closing Working Capital is equal to the Estimated Closing Working Capital, then Buyer and Sellers’ Representative shall deliver joint written instructions to the Escrow Agent to cause the Escrow Agent to make payment of the entire Adjustment Escrow Amount to Sellers in accordance with each Seller’s Pro Rata Percentage of the Adjustment Escrow Amount; and (iii) if the Closing Working Capital is greater than the Estimated Closing Working Capital, then (A) Buyer and Sellers’ Representative shall deliver joint written instructions to the Escrow Agent to cause the Escrow Agent to make payment of the entire Adjustment Escrow Amount to Sellers in accordance with each Seller’s Pro Rata Percentage of the Adjustment Escrow Amount and (B) no other payment shall be required. Buyer and Sellers agree that the Adjustment Escrow Amount shall not be the sole source of Buyer’s right to the Net Working Capital Deficit (if any), and that the Sellers shall be jointly and severally liable for any such shortfall.
(f) All payments required by Buyer under this Section 1.4(c2.05 shall be made in cash by wire transfer of immediately available funds to such bank account(s) as shall be designated in writing by Sellers’ Representative at least three (in addition 3) Business Days prior to those items theretofore agreed the applicable payment date. Any payments made pursuant to Section 2.05 shall be treated as an adjustment to the Purchase Price by Seller and Buyer)the parties for Tax purposes, unless otherwise required by Law.
Appears in 1 contract
Samples: Membership Interest Purchase Agreement (Crawford & Co)
Purchase Price Adjustment. (a) As soon as practicable but not later than 60 days following the Closing DateBuyers shall, Seller shall prepare and at their sole expense, deliver to Buyer Seller within 30 days after the end of each of the Interim Adjustment Period and the Final Adjustment Period, a working capital statement of the Company as Gross Revenues of the close Business certified by the Chief Executive Officer and the Chief Financial Officer of business on the Closing Date Buyers (the "CLOSING STATEMENT") setting forth the current assets minus the current liabilities of the Company (the "WORKING CAPITAL") on the basis described in Annex B, accompanied by a report from Arthur Andersen LLP; PROVIDED, HOWEVER, if the transactions contemplaxxx xx Xxxxxxx 4.11(a) or (b) occur, the Closing Statement will be prepared as if the Com pany did not own the Dermablend Business or the National Cosmetics Business and the Iman Business as of the Closing Date, as the case may be; PROVIDED FURTHER that if Buyer retains the Dermablend Business and, pursuant to Section 4.11(b“Certified Statement”), sells the National Cosmetics Business and the Iman Business, the Dermablend Business will also include the net accounts receivable (other than the Designated Receivables (as defined in Section 4.11)), bank overdraft, accounts payable and accrued expenses related to the National Cosmetics Business and the Iman Business. Seller and its authorized representatives shall have reasonable access to all relevant books and records and employees of the Company following the Closing Date to the extent required to complete preparation of the Closing Statement, including, without limitation, preparation of any financial reports or schedules needed to complete the Closing Statement. Seller and Buyer shall split equally the cost of preparing and delivering the Closing Statement.
(b) After receipt of the Closing Statement, Buyer Sellers shall have 15 thirty (30) days from the date upon which a Certified Statement has been delivered to review it. Buyer and its authorized representatives shall have reasonable access to Seller's accountants to the extent required to complete their review raise any objection thereto by delivery of the Closing Statement, including, without limitation, the accountants' work papers used in preparation thereof. Unless Buyer delivers written notice to Seller on or prior Buyer setting forth such objections in reasonable detail. During such 30-day period, Sellers and their accountants shall have the right to inspect the books and records related to the 15th day after receipt Business during normal business hours at the Buyers’ offices, upon reasonable prior notice and solely for purposes reasonably related to the determination of the Closing Gross Revenues of the Business and the resulting Adjustment Amount. In the event that Sellers shall fail to so deliver such written objections with respect to such Certified Statement specifying in reasonable detail its objections to the Closing within such 30-day period, then such Certified Statement on the grounds that the Closing Statement (i) was not prepared in accordance with this Section 1.4 or (ii) contained arithmetic errors, the parties shall be deemed final and binding on the parties. In the event that any such objections are so delivered, Buyers and Sellers shall attempt, in good faith, to have accepted and agreed resolve such objections and, if unable to the Closing Statement. If Buyer do so notifies Seller within fifteen (15) business days of delivery of such an objection objections, shall, within ten (10) business days thereafter designate a nationally or regionally recognized firm of independent public accountants, mutually satisfactory to Buyers and Sellers (the Closing Statement“Independent Accountants”). In the event that Buyers and Sellers are unable to agree on the Independent Accountants within such ten-business day period, the parties Independent Accountants shall be designated jointly by the independent accountants of Buyers and Sellers within 15 twenty (20) business days following the thereafter. The Independent Accountants shall resolve all remaining objections to such Certified Statement made by Sellers in accordance herewith within twenty (20) business days from their date of such notice (designation. The determination of the "RESOLUTION PERIOD") attempt to resolve their differencesIndependent Accountants shall be final and binding on the parties. The fees and expenses of the Independent Accountant shall be borne, equally, by the Buyers and Sellers.
(c) At The Cash Purchase Price shall be adjusted based on the conclusion Certified Statement, as finally determined in accordance herewith, by the amount (the “Adjustment Amount”) determined as follows:
(i) as of the Resolution end of the Interim Adjustment Period, any amounts remaining in dispute shallthe event that the Gross Revenues are $2,570,000 or less, at the election of either party, be submitted to Price Waterhouse (the "NEUTRAL AUDITOR"). The Neutral Auditor Adjustment Amount shall be engaged within five days after an election by either party to submit its objections to the Neutral Auditor, and each party agrees to execute, if requested by the Neutral Auditor, a reasonable engagement letter. All fees and expenses $0;
(ii) as of the Neutral Auditor end of the Interim Adjustment Period, in the event that the Gross Revenues are in excess of $2,570,000, the Adjustment Amount shall be borne equally by Seller and Buyer. The Neutral Auditor shall act an amount equal to $0.51 for every $1.00 the Gross Revenues are in excess of $2,570,000, up to a maximum Adjustment Amount of $475,000;
(iii) as an arbitrator to determine, based solely on the written presentations by Seller and Buyer made within 15 days of the Neutral Auditor's engagement end of the Final Adjustment Period, in the event that the average Gross Revenues for each year during such Final Adjustment Period are $2,570,000 or such other reasonable period of time to which less, the parties agree, and not by independent review, only those issues still in dispute. The Neutral Auditor's determination Adjustment Amount shall be made within 30 days after Seller's and Buyer's written presentations have been made$0; and
(iv) as of the end of the Final Adjustment Period, in the event that the average Gross Revenues for each of the two years in such Final Adjustment Period are in excess of $2,570,000, the Adjustment Amount shall be set forth an amount equal to $1.02 for every $1.00 the Gross Revenues are in a written statement delivered excess of $2,570,000 less any Adjustment Amount paid to Seller and Buyer and shall be final, binding, conclusive and nonappealable. The term "FINAL CLOSING STATEMENT" shall mean the definitive Closing Statement agreed to by Seller and Buyer Sellers in accordance with Section 1.4(b2.10(c)(ii) or the definitive Closing Statement resulting from the determination made by the Neutral Auditor above, up to a maximum Adjustment Amount (including any Adjustment Amount paid to Sellers in accordance with this Section 1.4(c2.10(c)(ii) above ) of $950,000. Within ten (10) business days of the final determinations of the Certified Statements in addition accordance with Section 2.10(b) above, Buyers shall pay to those items theretofore agreed Sellers the Adjustment Amount calculated pursuant to Sections 2.10(c)(i) or 2.10(c)(ii) above, in the aggregate, by Seller and Buyer)wire transfer of immediately available funds to an account designated in writing by Sellers.
Appears in 1 contract
Samples: Asset Purchase Agreement (Digital Cinema Destinations Corp.)
Purchase Price Adjustment. (a) As soon as practicable but not later than 60 days following The parties shall estimate on Schedule 2.3 the Closing Date, Seller shall prepare and deliver to Buyer a working capital statement of the Company amount by which WHL’s assets exceed its liabilities as of the close of business on the Closing Date (the "CLOSING STATEMENT"“Estimated Closing Date Net Asset Amount”). In addition, Schedule 2.3 shall reflect the parties’ agreement as to the allocation of certain revenues of WHL and as to responsibility for certain expenses of WHL. As soon as reasonably practical after the Closing, but in no event more than thirty (30) days after the Closing Date, the Purchaser shall prepare the Closing Date Balance Sheet and a computation the Closing Date Net Asset Amount and the Net Asset Adjustment resulting therefrom (collectively, the “Draft Adjustment Report”). The Purchaser shall deliver the Draft Adjustment Report to Shareholders and WHL (who for purposes of this Section 2.3 shall be collectively referred to as “Seller”) within such 30-day period after the Closing Date.
(b) During the fifteen (15)day period after the Seller’s receipt of the Draft Adjustment Report, the Seller and the Purchaser shall cooperate with each other to resolve any disagreements between them with respect to the Draft Adjustment Report. In the event the Seller and the Purchaser agree on the Draft Adjustment Report and the proposed Net Asset Adjustment set forth therein (such agreement to be indicated in writing by the Seller and the Purchaser by signing such Draft Adjustment Report), then the Draft Adjustment Report shall be deemed to be the final Adjustment Report (the “Final Adjustment Report”), and the Net Asset Adjustment set forth therein shall be conclusive and binding upon the Purchaser and the Seller and shall have the effect of adjusting the Cash Consideration as set forth therein.
(c) In the event the Seller and the Purchaser shall not reach agreement on all aspects of the Draft Adjustment Report, including with respect to the Net Asset Adjustment set forth therein, within such 15-day period after the Seller’s receipt of the Draft Adjustment Report, the Seller shall promptly (but in no event later than five (5) days following the expiration of such 15-day period) prepare a written notice of its objections (the “Objection Notice”): (i) objecting in good faith to the Net Asset Adjustment set forth in the Draft Adjustment Report, (ii) setting forth the current assets minus items being disputed and the current liabilities reasons therefor, and (iii) specifying the Seller’s calculation of the Company (the "WORKING CAPITAL") on the basis described in Annex B, accompanied by a report from Arthur Andersen LLP; PROVIDED, HOWEVER, if the transactions contemplaxxx xx Xxxxxxx 4.11(a) or (b) occur, the Closing Statement will be prepared as if the Com pany did not own the Dermablend Business or the National Cosmetics Business and the Iman Business Net Asset Adjustment as of the Closing DateDate and the adjustment to be made in accordance with this Section 2.3. In connection with the preparation of the Objection Notice, the Purchaser shall grant the Seller’s accountants and other representatives reasonable access to all of the books and records of WHL. If the Seller fails to deliver timely notice of its objection to the Net Asset Adjustment as set forth in the Draft Adjustment Report, then the Draft Adjustment Report shall be deemed to be the Final Adjustment Report, and the Net Asset Adjustment set forth therein shall be conclusive and binding upon the Purchaser and the Seller and shall have the effect of adjusting the Cash Consideration as set forth therein.
(d) The matters in dispute shall be determined by a nationally recognized independent public accounting firm mutually satisfactory to the Purchaser and the Seller (which accounting firm shall not be the current or former auditors of either the Purchaser or the Seller) (the “Arbiter”), and the Purchaser and the Seller shall promptly deliver to the Arbiter Schedule 2.3, the Draft Adjustment Report and Seller’s Objection Notice. Promptly, but not later than 30 days after the acceptance of its appointment, the Arbiter shall determine (based solely on the information provided by the Seller and the Purchaser to the Arbiter and not by independent review) only those items in dispute and shall render a report as to its resolution of such items and the resulting calculation of the Net Asset Adjustment. For purposes of the Arbiter’s determination, the amounts to be included shall be the appropriate amounts from Schedule 2.3 or the Draft Adjustment Report, as the case may be; PROVIDED FURTHER , as to items that if Buyer retains the Dermablend Business andare not in dispute, pursuant to Section 4.11(b), sells the National Cosmetics Business and the Iman Businessamounts determined by the Arbiter, as to items that are submitted for resolution by the Arbiter. In resolving any disputed item, the Dermablend Business will also include the net accounts receivable (other Arbiter may not assign a value to such item greater than the Designated Receivables (as defined greatest value for such item claimed by either party in Section 4.11))Schedule 2.3, bank overdraftthe Draft Adjustment Report or Objection Notice or less than the lowest value for such item claimed by either party in Schedule 2.3, accounts payable and accrued expenses related to the National Cosmetics Business Draft Adjustment Report or Objection Notice. The Purchaser and the Iman Business. Seller shall cooperate with the Arbiter in making its determination and its authorized representatives such determination shall have reasonable access to all relevant books be conclusive and records binding upon the Purchaser and employees of the Company following the Closing Date to the extent required to complete preparation of the Closing Statement, including, without limitation, preparation of any financial reports or schedules needed to complete the Closing Statement. Seller and Buyer shall split equally the cost of preparing and delivering the Closing StatementSeller.
(be) After receipt The Purchaser and the Seller shall each bear one-half of the Closing Statement, Buyer shall have 15 days to review it. Buyer fees and its authorized representatives shall have reasonable access to Seller's accountants to the extent required to complete their review expenses of the Closing Statement, including, without limitation, Arbiter.
(f) Within five Business Days after the accountants' work papers used in preparation thereof. Unless Buyer delivers written notice to Seller on or prior to the 15th day after receipt final determination of the Closing Statement specifying in reasonable detail its objections to the Closing Statement on the grounds that the Closing Statement (i) was not prepared Net Asset Adjustment in accordance with this Section 1.4 2.3: either (i) the Purchaser shall pay the Seller by wire transfer of immediately available funds the amount, if any, by which the Closing Date Net Asset Amount exceeds the Estimated Closing Date Net Asset Amount; or (ii) contained arithmetic errorsthe Seller shall pay the Purchaser by wire transfer of immediately available funds the amount, if any, by which the parties shall be deemed to have accepted and agreed to Estimated Closing Date Net Asset Amount exceeds the Closing StatementDate Net Asset Amount. If Buyer so notifies Seller of such an objection to the Closing Statement, the parties shall within 15 days following the date of such notice (the "RESOLUTION PERIOD") attempt to resolve their differences.
(c) At the conclusion of the Resolution Period, any amounts remaining Nothing in dispute shall, at the election of either party, be submitted to Price Waterhouse (the "NEUTRAL AUDITOR"). The Neutral Auditor shall be engaged within five days after an election by either party to submit its objections to the Neutral Auditor, and each party agrees to execute, if requested by the Neutral Auditor, a reasonable engagement letter. All fees and expenses of the Neutral Auditor shall be borne equally by Seller and Buyer. The Neutral Auditor shall act as an arbitrator to determine, based solely on the written presentations by Seller and Buyer made within 15 days of the Neutral Auditor's engagement or such other reasonable period of time to which the parties agree, and not by independent review, only those issues still in dispute. The Neutral Auditor's determination shall be made within 30 days after Seller's and Buyer's written presentations have been made, shall be set forth in a written statement delivered to Seller and Buyer and shall be final, binding, conclusive and nonappealable. The term "FINAL CLOSING STATEMENT" shall mean the definitive Closing Statement agreed to by Seller and Buyer in accordance with Section 1.4(b) or the definitive Closing Statement resulting from the determination made by the Neutral Auditor in accordance with this Section 1.4(c) (2.3 or in addition to those items theretofore agreed to by Seller the statements, reports or documents contemplated hereby shall affect the parties’ rights and Buyer)obligations in respect of a breach or alleged breach of any representation or warranty herein.
Appears in 1 contract
Samples: Stock Purchase Agreement (International Microcomputer Software Inc /Ca/)
Purchase Price Adjustment. (ai) As soon as practicable but not later than 60 Within forty-five (45) days following after the Closing Date, Seller shall prepare and deliver to Buyer a working capital statement of (in its final and binding form, the Company as of the close of business on the Closing Date (the "CLOSING STATEMENT"“Statement”) setting forth the current assets minus Inventory Amount. In connection with the current liabilities of the Company (the "WORKING CAPITAL") on the basis described in Annex B, accompanied by a report from Arthur Andersen LLP; PROVIDED, HOWEVER, if the transactions contemplaxxx xx Xxxxxxx 4.11(a) or (b) occur, the Closing Statement will be prepared as if the Com pany did not own the Dermablend Business or the National Cosmetics Business and the Iman Business as of the Closing Date, as the case may be; PROVIDED FURTHER that if Buyer retains the Dermablend Business and, pursuant to Section 4.11(b), sells the National Cosmetics Business and the Iman Business, the Dermablend Business will also include the net accounts receivable (other than the Designated Receivables (as defined in Section 4.11)), bank overdraft, accounts payable and accrued expenses related to the National Cosmetics Business and the Iman Business. Seller and its authorized representatives shall have reasonable access to all relevant books and records and employees of the Company following the Closing Date to the extent required to complete preparation of the Closing Statement, including, without limitation, preparation of any financial reports or schedules needed to complete the Closing Statement. Seller and Buyer shall split equally jointly take and prepare a physical count of the cost of preparing Transferred Inventory which shall take into account any Inventory sold between the Effective Time and delivering such physical count. During the Closing Statement.
thirty (b30) After days immediately following Buyer’s receipt of the Closing Statement, Buyer shall have 15 days be permitted to review it. Buyer and its authorized representatives shall have reasonable access to Seller's accountants the final working papers relating to the extent required to complete their review of Statement. The Statement shall become final and binding upon the Closing Statement, including, without limitation, parties on the accountants' work papers used in preparation thereof. Unless thirtieth (30th) day following receipt thereof by Buyer delivers unless Buyer gives written notice of its disagreement (a “Notice of Disagreement”) to Seller on or prior to the 15th day after receipt such date. Any Notice of the Closing Statement specifying Disagreement shall specify in reasonable detail its objections to the Closing Statement on nature and amount of any disagreement so asserted; provided, that no such Notice of Disagreement shall be provided unless the grounds that aggregate amount of disagreements noticed is at least $100,000. If a timely Notice of Disagreement is received by Seller, then the Closing Statement (i) was not prepared as revised in accordance with this Section 1.4 clause (x) or (iiy) contained arithmetic errors, below) shall become final and binding upon the parties on the earlier of (x) the date the parties hereto resolve in writing any differences they have with respect to any matter specified in the Notice of Disagreement or (y) the date any matters properly in dispute are finally resolved in writing by the Firm. During the thirty (30) days immediately following the delivery of a Notice of Disagreement, Seller and Buyer shall seek in good faith to resolve in writing any differences which they may have with respect to any matter specified in the Notice of Disagreement. During such period, Seller shall have full access to the final working papers of Buyer prepared in connection with Buyer’s preparation of the Notice of Disagreement. At the end of such thirty (30)-day period, Seller and Buyer shall submit to Deloitte LLP (the “Firm”) for review and resolution of any and all matters which remain in dispute and which were properly included in the Notice of Disagreement, and the Firm shall make a final determination of the Inventory Amount, which determination shall be deemed to have accepted and agreed to the Closing Statement. If Buyer so notifies Seller of such an objection to the Closing Statement, binding on the parties shall within 15 days following (it being understood, however, that the date of such notice (the "RESOLUTION PERIOD") attempt to resolve their differences.
(c) At the conclusion of the Resolution Period, any amounts remaining in dispute shall, at the election of either party, be submitted to Price Waterhouse (the "NEUTRAL AUDITOR"). The Neutral Auditor shall be engaged within five days after an election by either party to submit its objections to the Neutral Auditor, and each party agrees to execute, if requested by the Neutral Auditor, a reasonable engagement letter. All fees and expenses of the Neutral Auditor shall be borne equally by Seller and Buyer. The Neutral Auditor Firm shall act as an arbitrator to determine, based solely on the written presentations by Buyer and Seller and Buyer made within 15 days of the Neutral Auditor's engagement or such other reasonable period of time to which the parties agree, (and not by independent review), only those issues still matters which remain in disputedispute and which were properly included in the Notice of Disagreement). The Neutral Auditor's determination Statement shall become final and binding on Buyer and Seller on the date the Firm delivers its final resolution to the parties (which final resolution shall be made within 30 days after Seller's and Buyer's written presentations have been made, delivered as soon as practicable following the selection of the Firm). The Firm shall be set forth in a written statement delivered to Seller and Buyer and shall be final, binding, conclusive and nonappealable. The term "FINAL CLOSING STATEMENT" shall mean the definitive Closing Statement agreed to selected by Seller and Buyer in accordance with or, if the parties are unable to agree, by Seller’s and Buyer’s independent accountants. The fees and expenses of the Firm pursuant to this Section 1.4(b2(b) or the definitive Closing Statement resulting from the determination made shall be borne fifty percent (50%) by Buyer and fifty percent (50%) by Seller.
(ii) The Base Purchase Price shall be either increased by the Neutral Auditor amount by which the Inventory Amount exceeds Base Inventory Amount or decreased by the amount by which the Base Inventory Amount exceeds the Inventory Amount (the Base Purchase Price, as so increased or decreased, being referred to herein as the “Final Purchase Price”). If the Base Purchase Price is less than the Final Purchase Price, Buyer shall, and if the Base Purchase Price is greater than the Final Purchase Price, Seller shall, within five (5) business days after the Statement becomes final and binding on the parties, make payment to the other party by wire transfer in accordance with this Section 1.4(c) (immediately available funds of the amount of such difference. Such payment shall be in addition to those items theretofore agreed to by Seller and Buyer)cash notwithstanding the form of consideration utilized for the Base Purchase Price paid at the Closing.
Appears in 1 contract
Purchase Price Adjustment. (a) As soon The book value of the Balance Sheet Assets will be determined as practicable but not later than 60 of October 31, 1997. There will be pre-Closing adjustments to the Purchase Price to the extent the book value is determined to have changed as of December 31, 1997 based upon changes in the Balance Sheet Assets from October 31, 1997 through December 31, 1997. If feasible, within forty (40) days following after the Closing Date, Seller Sellers shall prepare and deliver to Buyer a working capital statement balance sheet of the Company Business as of the close of business on the Closing Date (the "CLOSING STATEMENTClosing Date Balance Sheet") setting forth prepared by Sellers and examined on a limited basis by KPMG Peat Marwick, reflecting the current assets minus the current liabilities of the Company (the "WORKING CAPITAL") on the basis described in Annex B, accompanied by a report from Arthur Andersen LLP; PROVIDED, HOWEVER, if the transactions contemplaxxx xx Xxxxxxx 4.11(a) or (b) occur, the Closing Statement will Balance Sheet Assets sold to Buyer hereunder. Such balance sheet shall be prepared as if in accordance with a method acceptable to Buyer applied on a basis consistent with the Com pany did not own the Dermablend Business or the National Cosmetics Business and the Iman Business as of the Closing Date, as the case may be; PROVIDED FURTHER that if Buyer retains the Dermablend Business and, pursuant to Section 4.11(b), sells the National Cosmetics Business and the Iman Business, the Dermablend Business will also include the net accounts receivable (other than the Designated Receivables (as defined in Section 4.11)), bank overdraft, accounts payable and accrued expenses related to the National Cosmetics Business and the Iman Business. Seller and its authorized representatives shall have reasonable access to all relevant books and records and employees of the Company following the Closing Date to the extent required to complete preparation of the Closing Statement, including, without limitation, preparation of any financial reports or schedules needed to complete the Closing Statement. Seller and Buyer shall split equally the cost of preparing and delivering the Closing StatementMost Recent Financial Statements.
(b) After If Buyer has any objection to the Closing Date Balance Sheet, Buyer shall deliver to Sellers a detailed statement describing such objections within ten (10) days after Buyer's receipt of the Closing Statement, Buyer shall have 15 days to review itDate Balance Sheet. Buyer and its authorized representatives Sellers shall have use reasonable access efforts to Seller's accountants resolve any such objections. In the event that Buyer and Sellers are unable to the extent required to complete their review of the Closing Statement, including, without limitation, the accountantsfinally resolve such objections within thirty (30) days after Sellers' work papers used in preparation thereof. Unless Buyer delivers written notice to Seller on or prior to the 15th day after receipt of such objections, Buyer and Sellers shall, within ten (10) days after such thirty-day period, notify the Closing Statement specifying in reasonable detail Orlando, Florida office of Price Waterhouse or its objections to the Closing Statement on the grounds that the Closing Statement (i) was not prepared in accordance with this Section 1.4 or (ii) contained arithmetic errors, the parties shall be deemed to have accepted and agreed to the Closing Statement. If Buyer so notifies Seller of such an objection to the Closing Statement, the parties shall within 15 days following the date of such notice (the "RESOLUTION PERIOD") attempt successor to resolve their differences.
(c) At the conclusion of the Resolution Period, any amounts remaining in dispute shall, at the election of either party, be submitted to objections. The determination made by Price Waterhouse (the "NEUTRAL AUDITOR"). The Neutral Auditor shall be engaged within five days after an election by either party to submit or its objections to the Neutral Auditor, and each party agrees to execute, if requested by the Neutral Auditor, a reasonable engagement letter. All fees and expenses of the Neutral Auditor shall be borne equally by Seller and Buyer. The Neutral Auditor shall act as an arbitrator to determine, based solely on the written presentations by Seller and Buyer made within 15 days of the Neutral Auditor's engagement or such other reasonable period of time to which the parties agree, and not by independent review, only those issues still in dispute. The Neutral Auditor's determination successor shall be made within 30 days after Seller's and Buyer's written presentations have been madethirty (30) days, shall be set forth in a written statement delivered to Seller and Buyer writing and shall be final, binding, conclusive and nonappealablebinding upon the Parties hereto. The term "FINAL CLOSING STATEMENT" fees and expenses of Price Waterhouse or its successor shall mean be shared equally by Buyer and Sellers. Buyer will revise the definitive Closing Statement agreed Date Balance Sheet to by Seller reflect the resolution of any objections thereto pursuant to this Section 2.3.1(b).
(c) If the aggregate book value of the Balance Sheet Assets as reflected on the Closing Date Balance Sheet, as revised to reflect any revisions thereto made pursuant to Section 2.3.1(b), if applicable, and Buyer in accordance with Section 1.4(b) or the definitive Closing Statement resulting as revised to include any assets transferred from the determination books of Golf and Country Club to Utility Company on or about December 31, 1997 as contemplated above, if applicable, is less than the book value of the Balance Sheet Assets used to determine the Purchase Price in subclause 2.3(i) above, Sellers will pay to Buyer an amount equal to such deficiency plus interest thereon at the Applicable Rate from the Closing Date to the date such payment is made by wire transfer or other immediately available funds within three business days after the Neutral Auditor date on which the Closing Date Balance Sheet is finally determined pursuant to Section 2.3.1(b). If the aggregate book value of the Balance Sheet Assets as reflected on the Closing Date Balance Sheet, as revised to reflect any revisions thereto made pursuant to Section 2.3.1(b), if applicable, and as revised to include any assets transferred from the books of Golf and Country Club to Company on or about December 31, 1997 as contemplated above, if applicable, is greater than the book value of the Balance Sheet Assets used to determine the Purchase Price in accordance with this subclause 2.3(i) above, Buyer will pay to Sellers an amount equal to such excess plus interest thereon at the Applicable Rate from the Closing Date to the date such payment is made by wire transfer or other immediately available funds within three business days after the date on which the Closing Date Balance Sheet is finally determined pursuant to Section 1.4(c) (in addition to those items theretofore agreed to by Seller and Buyer2.3.1(b).
Appears in 1 contract
Purchase Price Adjustment. (a) As soon as practicable but not later than 60 Within ninety (90) days following the Closing Date, Seller shall Buyer will prepare and deliver to Buyer Seller a working capital written statement of the Company as of the close of business on the Closing Date (the "CLOSING STATEMENT"“Closing Report”) setting forth the current assets minus the current liabilities a calculation in reasonable detail of the Company (the "WORKING CAPITAL") on the basis described in Annex B, accompanied by a report from Arthur Andersen LLP; PROVIDED, HOWEVER, if the transactions contemplaxxx xx Xxxxxxx 4.11(a) or (b) occurNet Working Capital, the Deferred Revenue Amount and the Initial Purchase Price. The Closing Statement Date Net Working Capital and Closing Date Deferred Revenue Amount will be prepared as if in accordance with the Com pany did not own methodologies and principles used in the Dermablend Business or the National Cosmetics Business and the Iman Business as of the Closing Date, as the case may be; PROVIDED FURTHER that if Buyer retains the Dermablend Business and, pursuant to Section 4.11(b), sells the National Cosmetics Business and the Iman Business, the Dermablend Business will also include the net accounts receivable (other than the Designated Receivables (as defined in Section 4.11)), bank overdraft, accounts payable and accrued expenses related to the National Cosmetics Business and the Iman Business. Seller and its authorized representatives shall have reasonable access to all relevant books and records and employees of the Company following the Closing Date to the extent required to complete preparation of the Closing Statement, including, without limitation, preparation Financial Statements. Schedule 1.1(b) sets forth a calculation of any financial reports or schedules needed to complete Net Working Capital and the Closing Statement. Seller and Buyer shall split equally Deferred Revenue Amount for illustrative purposes only based on the cost of preparing and delivering the Closing StatementLatest Balance Sheet.
(b) After receipt If Seller disputes any items in the Closing Report, Seller will within thirty (30) days after the delivery of the Closing StatementReport (the “Review Period”) deliver written notice to Buyer of any objections thereto, Buyer shall have 15 days to review itwhich written notice will specify in reasonable detail the rationale for such disagreement and the amount in dispute. Buyer and its authorized representatives shall have reasonable access Seller will attempt in good faith to reach an agreement as to any matters identified in such written notice as being in dispute. If Seller and Buyer fail to resolve all such matters in dispute within thirty (30) days after Seller's accountants to the extent required to complete their review ’s delivery of the Closing Statement, including, without limitation, the accountants' work papers used in preparation thereof. Unless Buyer delivers such written notice to Buyer, then any matters identified in such written notice that remain in dispute will be finally and conclusively determined by Xxxxx Xxxxxxxx LLP, or if such firm is not available or able to perform the tasks contemplated hereunder, by an independent auditing firm of recognized national standing selected by Buyer and Seller, which firm is not the regular auditing firm of Buyer or Seller or any of their Affiliates (the “Arbiter”). Promptly, but no later than thirty (30) days after its acceptance of its appointment, the Arbiter will determine (based on or prior written presentations of Buyer and Seller and not by independent review; provided that the Arbiter shall have the right (but not the obligation) to ask questions, and seek additional written presentations, of Buyer and Seller) only those matters in dispute and will render a written report as to the 15th day after receipt disputed matters and the resulting calculation of the final Closing Statement specifying in reasonable detail its objections Date Net Working Capital and final Closing Date Deferred Revenue Amount, which report will thereupon be conclusive and binding upon the Parties. In resolving any disputed item, the Arbiter may not assign a value to any item greater than the greatest value for such item claimed by Buyer or Seller, or less than the smallest value for such item claimed by Buyer or Seller. The fees and expenses of the Arbiter will be allocated between Buyer and Seller based upon the percentage which the portion of the disputed amount not awarded to each Party bears to the total amount of the total disputed matters as originally submitted to the Arbiter. For example, if Seller claims that Initial Purchase Price is $1,000 greater than the amount determined by Buyer and the Arbiter awards $400 in favor of Seller’s position, then 40% of the fees and expenses of the Arbiter would be borne by Buyer and 60% of such fees and expenses would be borne by Seller. If Seller fails to notify Buyer of any disputes within the Review Period, the Closing Statement Report (including the calculation of Net Working Capital, the Deferred Revenue Amount and the Initial Purchase Price reflected therein) will be conclusive and binding on the grounds that Parties upon the expiration of the Review Period. If Seller notifies Buyer of its agreement with any items in the calculation of Net Working Capital or the Deferred Revenue Amount, such items will be conclusive and binding on the Parties immediately upon such notice. The Closing Statement (i) was not prepared Report and the calculation of Net Working Capital, the Deferred Revenue Amount and the Initial Purchase Price, as finally determined pursuant to this Section 2.7, will constitute the “Final Closing Report,” “Final Net Working Capital,” “Final Deferred Revenue Amount” and “Final Initial Purchase Price,” respectively, for purposes of this Agreement. The date on which the Final Closing Report is finally determined in accordance with this Section 1.4 or (ii) contained arithmetic errors, 2.7 is hereinafter referred to as the parties shall be deemed to have accepted and agreed to the Closing Statement. If Buyer so notifies Seller of such an objection to the Closing Statement, the parties shall within 15 days following the date of such notice (the "RESOLUTION PERIOD") attempt to resolve their differences“Determination Date.
(c) At the conclusion of the Resolution Period, any amounts remaining in dispute shall, at the election of either party, be submitted to Price Waterhouse (the "NEUTRAL AUDITOR"). The Neutral Auditor shall be engaged within five days after an election by either party to submit its objections to the Neutral Auditor, and each party agrees to execute, if requested by the Neutral Auditor, a reasonable engagement letter. All fees and expenses of the Neutral Auditor shall be borne equally by Seller and Buyer. The Neutral Auditor shall act as an arbitrator to determine, based solely on the written presentations by Seller and Buyer made within 15 days of the Neutral Auditor's engagement or such other reasonable period of time to which the parties agree, and not by independent review, only those issues still in dispute. The Neutral Auditor's determination shall be made within 30 days after Seller's and Buyer's written presentations have been made, shall be set forth in a written statement delivered to Seller and Buyer and shall be final, binding, conclusive and nonappealable. The term "FINAL CLOSING STATEMENT" shall mean the definitive Closing Statement agreed to by Seller and Buyer in accordance with Section 1.4(b) or the definitive Closing Statement resulting from the determination made by the Neutral Auditor in accordance with this Section 1.4(c) (in addition to those items theretofore agreed to by Seller and Buyer).”
Appears in 1 contract
Purchase Price Adjustment. (a) As soon as practicable but not later than 60 Within ninety (90) days following the Closing Date, Seller KAV shall prepare and deliver to Buyer a working capital statement of AVS and the Company a certificate verified as to accuracy by the Managers of the close of business on the Closing Date KAV appointed by Kellxxxxx (the xxe "CLOSING STATEMENTActual Purchase Price Certificate") setting forth the current assets minus the current liabilities of the Company Purchase Price (the "WORKING CAPITALActual Purchase Price") on the basis described in Annex B, accompanied by a report from Arthur Andersen LLP; PROVIDED, HOWEVER, if the transactions contemplaxxx xx Xxxxxxx 4.11(a) or ).
(b) occur, Within sixty (60) days after the Closing Statement will be prepared as if the Com pany did not own the Dermablend Business or the National Cosmetics Business Actual Purchase Price Certificate is delivered to AVS and the Iman Business as Company, AVS and the Company shall give written notice to KAV setting forth in detail any objection to the Actual Purchase Price reflected in the Actual Purchase Price Certificate. If AVS and the Company shall fail to provide such notice to KAV of its objection to the Actual Purchase Price reflected in the Actual Purchase Price Certificate, then the determination of the Closing DateActual Purchase Price by KAV as reflected in the Actual Purchase Price Certificate shall be final and binding on the parties hereto.
(c) If within such sixty (60) day period following delivery of the Actual Purchase Price Certificate, as the case may be; PROVIDED FURTHER that if Buyer retains the Dermablend Business and, pursuant to Section 4.11(b), sells the National Cosmetics Business AVS and the Iman BusinessCompany shall give written notice of its objection to KAV, KAV, on the Dermablend Business will also include one hand, and AVS and the net accounts receivable Company on the other hand, shall use reasonable and good-faith efforts to resolve any such objection within the thirty (other than 30) day period following the Designated Receivables receipt of the notice of objection (the "Resolution Period"). If the parties shall reach agreement on the objections of AVS and the Company, then the Actual Purchase Price as defined in Section 4.11))agreed to by the parties shall become the Actual Purchase Price for purposes of this Agreement. If the parties are unable to reach agreement on the objections of AVS and the Company within the Resolution Period, bank overdraft, accounts payable and accrued expenses related then the matter shall be submitted as soon as practicable to the National Cosmetics Business Independent Accountants for determination of the Actual Purchase Price. If the parties shall submit the determination of the Actual Purchase Price to the Independent Accountants, then the determination of the Independent Accountants shall be final and binding on the parties and such amount shall become the Actual Purchase Price for purposes of the remainder of this Agreement. The parties (and their professional advisors) shall cooperate with one another in furtherance of determining the Actual Purchase Price, and the Iman Business. Seller and its authorized representatives parties shall have reasonable access to all relevant make reasonably available their books and records and employees technically available relevant computerized reports and reasonably available personnel in furtherance of making such determination. In connection with the Company following the Closing Date to the extent required to complete preparation resolution of the Closing Statementany dispute, each party shall pay its own fees and expenses, including, without limitation, preparation legal, accounting and consultant fees and expenses. The cost and expense of any financial reports or schedules needed to complete the Closing Statement. Seller Independent Accountants shall be shared equally between KAV, on the one hand, and Buyer shall split equally AVS and the cost of preparing and delivering Company, on the Closing Statementother hand.
(bd) After If the Estimated Purchase Price is greater than the Actual Purchase Price, then within five (5) Business Days following receipt of the Closing StatementActual Purchase Price Certificate or, Buyer shall have 15 days to review it. Buyer and its authorized representatives shall have reasonable access to Seller's accountants to if disputed, within five (5) Business Days following the extent required to complete their review earlier of the Closing Statement, including, without limitation, date on which the accountants' work papers used in preparation thereof. Unless Buyer delivers written notice to Seller on parties resolve the dispute or prior to the 15th day after receipt date of determination of the Closing Statement specifying in reasonable detail its objections to Actual Purchase Price by the Closing Statement on the grounds that the Closing Statement Independent Accountants, (i) was not prepared the Company shall repay to KAV (for repayment to the lenders under the Senior Credit Facility) the difference between the Estimated Purchase Price and the Actual Purchase Price, such amount to be repaid in accordance with this Section 1.4 or cash (the "Cash Difference"), (ii) contained arithmetic errors, the parties KAV shall be deemed to have accepted and agreed issue to the Closing Statement. If Buyer so notifies Seller of such Company and Kellxxxxx xxx KAV Senior Subordinated Adjustment Notes in an objection aggregate original principal amount equal to the Closing Statement, difference between (a) the parties shall within 15 days following Cash Difference and (b) the date of such notice (difference between the "RESOLUTION PERIOD") attempt to resolve their differences.
(c) At Cash Purchase Price and the conclusion of the Resolution Period, any amounts remaining in dispute shall, at the election of either party, be submitted to Price Waterhouse (the "NEUTRAL AUDITOR"). The Neutral Auditor shall be engaged within five days after an election by either party to submit its objections amount which would have been paid to the Neutral Auditor, and each party agrees to execute, if requested by the Neutral Auditor, a reasonable engagement letter. All fees and expenses of the Neutral Auditor shall be borne equally by Seller and Buyer. The Neutral Auditor shall act as an arbitrator to determine, based solely on the written presentations by Seller and Buyer made within 15 days of the Neutral Auditor's engagement or such other reasonable period of time to which the parties agree, and not by independent review, only those issues still in dispute. The Neutral Auditor's determination shall be made within 30 days after Seller's and Buyer's written presentations have been made, shall be set forth in a written statement delivered to Seller and Buyer and shall be final, binding, conclusive and nonappealable. The term "FINAL CLOSING STATEMENT" shall mean the definitive Closing Statement agreed to by Seller and Buyer in accordance with Section 1.4(b) or the definitive Closing Statement resulting from the determination made by the Neutral Auditor in accordance with this Section 1.4(c) (in addition to those items theretofore agreed to by Seller and Buyer).Company at Closing
Appears in 1 contract
Samples: Inventory Purchase Agreement (Kellstrom Industries Inc)
Purchase Price Adjustment. (a) As soon as practicable practicable, but not later than 60 thirty (30) days following after the Closing Date, the Seller shall will prepare and deliver to the Buyer a working capital statement the calculation of the Company actual Net Working Capital of the Seller as of the close of business on the Closing Date Effective Time (the "CLOSING STATEMENT"“Final Net Working Capital”) setting forth and the current assets minus the current liabilities calculation of the Company amount of any overpayment or underpayment of Purchase Price as a result of the difference between the Final Net Working Capital and the Net Working Capital Target (the "WORKING CAPITAL") on “Purchase Price Adjustment Statement”). The Buyer shall give the basis described in Annex B, accompanied by a report from Arthur Andersen LLP; PROVIDED, HOWEVER, if the transactions contemplaxxx xx Xxxxxxx 4.11(a) or (b) occur, the Closing Statement will be prepared as if the Com pany did not own the Dermablend Business or the National Cosmetics Business and the Iman Business as of the Closing Date, as the case may be; PROVIDED FURTHER that if Buyer retains the Dermablend Business and, pursuant to Section 4.11(b), sells the National Cosmetics Business and the Iman Business, the Dermablend Business will also include the net accounts receivable (other than the Designated Receivables (as defined in Section 4.11)), bank overdraft, accounts payable and accrued expenses related to the National Cosmetics Business and the Iman Business. Seller and its authorized representatives shall have advisors reasonable access to all relevant books the Seller’s Books and records Records and employees of the Company following the Closing Date to the extent required to complete preparation of the Closing Statement, including, without limitation, preparation of any financial reports or schedules personnel needed to complete prepare the Closing Statement. Seller and Buyer shall split equally the cost of preparing and delivering the Closing Purchase Price Adjustment Statement.
(b) After receipt Within thirty (30) days of receiving the Closing Statement, Buyer shall have 15 days to review it. Buyer and its authorized representatives shall have reasonable access to Seller's accountants to the extent required to complete their review of the Closing Statement, including, without limitation, the accountants' work papers used in preparation thereof. Unless Buyer delivers written notice to Seller on or prior to the 15th day after receipt of the Closing Statement specifying in reasonable detail its objections to the Closing Statement on the grounds that the Closing Statement (i) was not prepared in accordance with this Section 1.4 or (ii) contained arithmetic errors, the parties shall be deemed to have accepted and agreed to the Closing Statement. If Buyer so notifies Seller of such an objection to the Closing Purchase Price Adjustment Statement, the parties Buyer will notify the Seller of any dispute with respect to the Purchase Price Adjustment Statement, specifying the dispute in reasonable detail. If the Buyer does not notify the Seller of a dispute within this period, the Purchase Price Adjustment Statement shall within 15 days following the date of such notice (the "RESOLUTION PERIOD") attempt to resolve their differencesbe final and binding.
(c) At If the conclusion Buyer timely notifies the Seller of a dispute under Section 2.9(b) above, and the dispute is not resolved within seven (7) days after the date of such notice, the Seller and the Buyer will select an independent accounting firm (excluding any accounting firm used by a party hereto) to resolve the disputed items and make a determination of the Resolution Periodproposed adjustments with respect to the Purchase Price Adjustment Statement. If the Seller and the Buyer cannot agree on such an independent accounting firm within three (3) business days, any amounts remaining in dispute shall, at each of the election Seller and the Buyer shall select such an independent accounting firm and those two firms shall select a third such independent accounting firm to resolve the disputed items and make a determination of either party, the proposed adjustments with respect to the Purchase Price Adjustment Statement. Such determination will be submitted to Price Waterhouse made within sixty (60) days after such selection and will be binding upon the "NEUTRAL AUDITOR")parties hereto. The Neutral Auditor shall be engaged within five days after an election by either party to submit its objections to the Neutral Auditorfees, and each party agrees to execute, if requested by the Neutral Auditor, a reasonable engagement letter. All fees costs and expenses of the Neutral Auditor shall accounting firm so selected will be borne equally by the party whose positions generally did not prevail in such determination, or if the accounting firm determinates that neither party could be fairly found to be the prevailing party, the such fees, costs and expenses will be borne 50% by the Seller and 50% by the Buyer. The Neutral Auditor shall act .
(d) If the Final Net Working Capital is more than $60,000 greater than the Net Working Capital Target as an arbitrator to determinereflected in the Purchase Price Adjustment Statement, based solely within three (3) business after the Purchase Price Adjustment Statement becomes final and binding on the written presentations parties, the Buyer shall cause the payment of an amount equal to the difference between the Final Net Working Capital and the Net Working Capital Target to an account specified by the Seller.
(e) If the Final Net Working Capital is more than $60,000 less than the Net Working Capital Target as reflected in the Purchase Price Adjustment Statement, within three (3) business after the Purchase Price Adjustment Statement becomes final and binding on the parties, (i) the Buyer and Seller and Buyer made within 15 days of shall jointly instruct the Neutral Auditor's engagement or such other reasonable period of time Indemnity Escrow Agent to which release an amount equal to the parties agreeNet Working Capital Deficiency (but not exceeding $250,000) from the Indemnity Escrow Amount to an account specified by the Buyer, and not (ii) the Seller shall cause the payment to Buyer of an amount by independent review, only those issues still in dispute. The Neutral Auditor's determination shall be made within 30 days after Seller's and Buyer's written presentations have been made, shall be set forth in a written statement delivered to Seller and Buyer and shall be final, binding, conclusive and nonappealable. The term "FINAL CLOSING STATEMENT" shall mean the definitive Closing Statement agreed to by Seller and Buyer in accordance with Section 1.4(b) or the definitive Closing Statement resulting from the determination made by the Neutral Auditor in accordance with this Section 1.4(c) (in addition to those items theretofore agreed to by Seller and Buyer)which any such Net Working Capital Deficiency that exceeds $250,000.
Appears in 1 contract
Samples: Asset Purchase Agreement (Global Employment Holdings, Inc.)
Purchase Price Adjustment. (a) As soon Within 45 days after the Closing Date (as practicable but not later than 60 days following defined in Section 2), the Seller shall deliver to the Buyer a balance sheet of the Transferred Assets and Assumed Liabilities as
(a) (the "Closing Date Balance Sheet GAAP Exceptions"), and, subject to the Closing Date Balance Sheet GAAP Exceptions, presents fairly, in all material respects, the Transferred Assets and Assumed Liabilities at the Closing Date, Seller shall prepare and deliver to Buyer a working capital statement . The amount of the Company as of the close of business Inventory included on the Closing Date (the "CLOSING STATEMENT") setting forth the current assets minus the current liabilities of the Company (the "WORKING CAPITAL") on the basis described in Annex B, accompanied by a report from Arthur Andersen LLP; PROVIDED, HOWEVER, if the transactions contemplaxxx xx Xxxxxxx 4.11(a) or (b) occur, the Closing Statement will Balance Sheet shall be prepared as if the Com pany did determined pursuant to physical inventories conducted not own the Dermablend Business or the National Cosmetics Business and the Iman Business as of later than 10 days after the Closing Date, as the case may be; PROVIDED FURTHER that if Buyer retains the Dermablend Business and, pursuant to Section 4.11(b), sells the National Cosmetics Business adjusted for additions and the Iman Business, the Dermablend Business will also include the net accounts receivable (other than the Designated Receivables (as defined in Section 4.11)), bank overdraft, accounts payable and accrued expenses related to the National Cosmetics Business and the Iman Business. Seller and its authorized representatives shall have reasonable access to all relevant books and records and employees of the Company following deletions occurring between the Closing Date and the taking of such physical inventories, and each party's independent certified public accountants shall be permitted to the extent required to complete preparation of the Closing Statement, including, without limitation, preparation of any financial reports or schedules needed to complete the Closing Statementpersonally observe all such physical inventories. Seller and Buyer each shall split equally pay the cost fees and expenses of preparing its own accountant incurred in connection with the preparation and delivering audit of the Closing StatementDate Balance Sheet.
(b) After If the Buyer has any objection to the Closing Date Balance Sheet, it shall deliver to the Seller a statement describing with reasonable detail such objections within 30 days after the Buyer's receipt of the Closing StatementDate Balance Sheet. During such 30-day period, Buyer shall have 15 days to review it. Buyer and its authorized representatives accountants shall have reasonable access to Seller's accountants the work papers and such other documents and information relating to the extent required to complete their review preparation of the Closing Statement, including, without limitationDate Balance Sheet as they shall reasonably request. The Buyer and the Seller shall use reasonable efforts to resolve any such objections. If the Buyer and the Seller are unable to finally resolve such objections within 20 days after the Seller's receipt of such objections, the accountants' work papers used Buyer and the Seller shall, within 20 days after such 20- day period, select a mutually acceptable, neutral "Big Six" accounting firm ("Neutral Arbitrator") to resolve any remaining objections. A firm will be considered neutral if it has not within the past three years performed, and does not currently perform or contemplate performing, any accounting, consulting or other services for any of the parties. The Buyer and Seller will present their remaining unresolved objections in preparation thereof. Unless Buyer delivers written notice to Seller on or prior writing, along with supporting documentation, to the 15th day after receipt of the Closing Statement specifying in reasonable detail its objections to the Closing Statement on the grounds that the Closing Statement (i) was not prepared in accordance with this Section 1.4 or (ii) contained arithmetic errorsNeutral Arbitrator and opposing party, the parties shall be deemed to have accepted and agreed to the Closing Statement. If Buyer so notifies Seller of such an objection to the Closing Statement, the parties shall within 15 days following after retaining the date of such notice (the "RESOLUTION PERIOD") attempt to resolve their differences.
(c) At the conclusion of the Resolution Period, any amounts remaining in dispute shall, at the election of either party, be submitted to Price Waterhouse (the "NEUTRAL AUDITOR")Neutral Arbitrator. The Neutral Auditor Arbitrator will, using the standards prescribed in Section 1.7(a) hereof, render its decision to the parties in writing within 30 days after being retained. The Neutral Arbitrator's decision will be based solely on each parties written documentation and shall be engaged within five days after an election by either party to submit its objections to final and binding on the Neutral Auditor, and each party agrees to execute, if requested by the Neutral Auditor, a reasonable engagement letterparties. All The fees and expenses of the Neutral Auditor Arbitrator shall be borne shared equally by Seller the Buyer and Buyerthe Seller. The Neutral Auditor shall act Seller will revise the Closing Date Balance Sheet to reflect the resolution of any objections thereto pursuant to this paragraph Section 1.7(b).
(c) If the excess of the Transferred Assets over the Assumed Liabilities, as an arbitrator to determine, based solely reflected on the written presentations Closing Date Balance Sheet, as revised to reflect any revisions thereto made pursuant to Section 1.7(b) ("Closing NBV"), is greater or less than Three Million Seven Hundred Eighteen Thousand Dollars ($3,718,000) ("Threshold NBV"), then (i) the amount, if any, by Seller which the Closing NBV is greater than Threshold NBV shall be added to the Purchase Price, and (ii) the amount, if any, by which the Closing NBV is less than Threshold NBV shall be deducted from the Purchase Price.
(d) On or before the second business day following the date on which the Closing Date Balance Sheet is finally determined, Buyer made within 15 days shall pay the amount of any net upward adjustment of the Neutral Auditor's engagement or such other reasonable period of time Purchase Price pursuant to which the parties agree, and not by independent review, only those issues still in dispute. The Neutral Auditor's determination shall be made within 30 days after Seller's and Buyer's written presentations have been made, shall be set forth in a written statement delivered Section 1.7(c) to Seller and Buyer and or Seller shall be final, binding, conclusive and nonappealable. The term "FINAL CLOSING STATEMENT" shall mean the definitive Closing Statement agreed to by Seller and Buyer in accordance with Section 1.4(b) or the definitive Closing Statement resulting from the determination made by the Neutral Auditor in accordance with this Section 1.4(c) (in addition to those items theretofore agreed to by Seller and Buyer).pay the
Appears in 1 contract
Purchase Price Adjustment. (a) As soon promptly as practicable but not later than 60 days following the Closing Date, Seller shall prepare and deliver to Buyer a working capital statement of the Company as of the close of business on the Closing Date (but in any event within 45 days thereafter), Purchaser will prepare, or cause to be prepared, and deliver to Parent and AI Brazil a certificate executed by a duly authorized representative of Purchaser (the "CLOSING STATEMENT"“Closing Statement”) setting forth consisting of Purchaser’s calculation of Closing Net Working Capital, Net Working Capital Adjustment, Capex Spend, the current assets minus Selling and Marketing Cost Adjustment Amount, Closing USD Indebtedness, Closing BRL Indebtedness, Closing Indebtedness Adjustment, Closing USD Cash, Closing BRL Cash and Closing Cash Adjustment, together with the current liabilities calculation of the Company (Final Purchase Price and Final AI Brazil Payment resulting therefrom, and Purchaser’s calculation of Unpaid Transaction Expenses, Closing Accrued Tax Contingencies and the "WORKING CAPITAL") on the basis described in Annex B, accompanied by a report from Arthur Andersen LLP; PROVIDED, HOWEVER, if the transactions contemplaxxx xx Xxxxxxx 4.11(a) or (b) occur, the Accrued Tax Contingencies Adjustment resulting therefrom. The Closing Statement will be prepared as in good faith and in accordance with the Accounting Principles. For the avoidance of doubt, if the Com pany did not own Final Purchase Price would be lower but for the Dermablend Business or the National Cosmetics Business and the Iman Business as breach by Seller of the Closing Dateany of its obligations hereunder, as the case Purchaser may be; PROVIDED FURTHER that if Buyer retains the Dermablend Business and, pursuant to Section 4.11(b), sells the National Cosmetics Business and the Iman Business, the Dermablend Business will also include the net accounts receivable (other than the Designated Receivables (as defined present such lower Final Purchase Price in Section 4.11)), bank overdraft, accounts payable and accrued expenses related to the National Cosmetics Business and the Iman Business. Seller and its authorized representatives shall have reasonable access to all relevant books and records and employees of the Company following the Closing Date to the extent required to complete preparation of the Closing Statement, includingin the understanding that any resulting reduction in the Final Purchase Price shall be entirely allocated to, without limitationand borne by, preparation Seller. Parent and NIIH represent and warrant that Parent or its applicable Subsidiary has classified contingent Tax liabilities of any financial reports the Entities as “probable”, “possible” or schedules needed to complete “remote” in accordance with the Accounting Principles for purposes of determining Target Accrued Tax Contingencies, and each of Parent and Purchaser agrees that it shall not change such classifications for purposes of determining Estimated Closing Statement. Seller and Buyer shall split equally Accrued Tax Contingencies or Closing Accrued Tax Contingencies, respectively, except as expressly set forth in the cost of preparing and delivering the Closing StatementAccounting Principles.
(b) After receipt of The Closing Statement will become final, binding and conclusive upon Parent, Seller, AI Brazil and Purchaser on the Closing Statement, Buyer shall have 15 days to review it. Buyer and its authorized representatives shall have reasonable access to Seller's accountants to the extent required to complete their review of the Closing Statement, including, without limitation, the accountants' work papers used in preparation thereof. Unless Buyer delivers written notice to Seller on or prior to the 15th 45th day after receipt following Purchaser’s delivery of the Closing Statement specifying in reasonable detail its objections unless, prior to the such 45th day, Parent (on behalf of Seller and AI Brazil) delivers to Purchaser a written notice (a “Closing Statement on the grounds Dispute Notice”) stating that Parent disputes one or more items contained in the Closing Statement (ia “Disputed Item”) was not prepared and describing in accordance with this Section 1.4 or (ii) contained arithmetic errors, the parties shall be deemed reasonable detail each Disputed Item based on information then available to have accepted and agreed to the Closing Statement. If Buyer so notifies Seller of such an objection to the Closing Statement, the parties shall within 15 days following the date of such notice (the "RESOLUTION PERIOD") attempt to resolve their differencesParent.
(c) At If Parent delivers a Closing Statement Dispute Notice, then Purchaser and Parent, on behalf of Seller and AI Brazil, will seek in good faith to resolve the conclusion of Disputed Items during the 30-day period beginning on the date Purchaser receives the Closing Statement Dispute Notice (the “Resolution Period”). If Purchaser and Parent reach agreement with respect to any Disputed Items, Purchaser will revise the Closing Statement to reflect such agreement.
(d) If Purchaser and Parent are unable to resolve all Disputed Items during the Resolution Period, any amounts remaining in dispute shall, at then Purchaser and Parent will jointly engage and submit the election of either party, be submitted to Price Waterhouse unresolved Disputed Items (the "NEUTRAL AUDITOR"“Unresolved Items”) to PricewaterhouseCoopers or, if such firm is unwilling or unable to serve, to Deloitte & Touche LLP (any such Person, the “Independent Accountant”). The Neutral Auditor shall be engaged within five days after an election by either party Purchaser and Parent will use their respective reasonable best efforts to submit cause the Independent Accountant to issue its objections to written determination regarding the Neutral Auditor, and each party agrees to execute, if requested by the Neutral Auditor, a reasonable engagement letter. All fees and expenses of the Neutral Auditor shall be borne equally by Seller and Buyer. The Neutral Auditor shall act as an arbitrator to determine, based solely on the written presentations by Seller and Buyer made within 15 days of the Neutral Auditor's engagement or such other reasonable period of time to which the parties agree, and not by independent review, only those issues still in dispute. The Neutral Auditor's determination shall be made Unresolved Items within 30 days after Seller's and Buyer's written presentations have been made, shall be set forth in a written statement delivered to Seller and Buyer and shall be final, binding, conclusive and nonappealablesuch items are submitted for review. The term "FINAL CLOSING STATEMENT" shall mean scope of the definitive Closing Statement agreed disputes to be resolved by Seller and Buyer the Independent Accountant will be to make a determination with respect to the Unresolved Items in accordance with Section 1.4(b) or the definitive Closing Statement resulting from the determination made by the Neutral Auditor in accordance with Accounting Principles and this Section 1.4(c) (in addition to those items theretofore agreed to by Seller 2.4(d), and Buyer).the Independent
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Purchase Price Adjustment. (a) As soon as practicable but not later than 60 Within ninety (90) days following after the Closing Date, Seller Purchaser shall prepare and deliver to Buyer the Seller Representative a working capital written statement (“Purchaser’s Closing Payment Calculation Statement”) setting forth, in reasonable detail, Purchaser’s calculations (“Purchaser’s Proposed Calculations”) of (i) the Company as of Net Working Capital, (ii) the close of business Debt Amount, (iii) the Transaction Expenses, and (iv) the cash payment actually due to the Sellers in accordance with Section 2.1 based on the amounts in the foregoing clauses (i) — (iii) (“Purchaser’s Closing Date (the "CLOSING STATEMENT") setting forth the current assets minus the current liabilities of the Company (the "WORKING CAPITAL") on the basis described in Annex B, accompanied by a report from Arthur Andersen LLP; PROVIDED, HOWEVER, if the transactions contemplaxxx xx Xxxxxxx 4.11(a) or (b) occur, the Closing Statement will be prepared as if the Com pany did not own the Dermablend Business or the National Cosmetics Business and the Iman Business as of the Closing Date, as the case may be; PROVIDED FURTHER that if Buyer retains the Dermablend Business and, pursuant to Section 4.11(bPayment”), sells the National Cosmetics Business and the Iman Business, the Dermablend Business will also include the net accounts receivable (other than the Designated Receivables (as defined in Section 4.11)), bank overdraft, accounts payable and accrued expenses related to the National Cosmetics Business and the Iman Business. Seller and its authorized representatives shall have reasonable access to all relevant books and records and employees of the Company following the Closing Date to the extent required to complete preparation of the Closing Statement, including, without limitation, preparation of any financial reports or schedules needed to complete the Closing Statement. Seller and Buyer shall split equally the cost of preparing and delivering the Closing Statement.
(b) After receipt of the Purchaser’s Closing Payment Calculation Statement, Buyer the Seller Representative shall have 15 thirty (30) days (the “Review Period”) to review itPurchaser’s Closing Payment Calculation Statement. Buyer During the Review Period, Purchaser shall (i) permit the Seller Representative and its authorized his representatives shall (subject to such representatives executing a customary confidentiality agreement) to have reasonable access to Seller's accountants during normal business hours to the extent required to complete their review of the Closing Statementbooks, including, without limitation, the accountants' records and work papers pertaining to or used in connection with the preparation thereofof Purchaser’s Closing Payment Calculation Statement and (ii) provide the Seller Representative reasonable access during normal business hours to Purchaser’s and the Company’s employees and accountants as reasonably requested by the Seller Representative; provided that such access will be in a manner that does not interfere with the normal business operations of Purchaser or the Company. Unless Buyer delivers written notice to Seller on On or prior to the 15th last day after receipt of the Review Period, the Seller Representative shall notify Purchaser in writing of any disagreement with Purchaser’s Closing Payment Calculation Statement specifying in reasonable detail its objections or with the accuracy of any of Purchaser’s Proposed Calculations. Any such notice of disagreement shall specify those items or amounts as to which the Seller Representative disagrees and shall include the Seller Representative’s proposed changes to the Closing Statement on calculation of the grounds Company Cash, the Debt Amount, the Transaction Expenses, the Net Working Capital and the Purchase Price, as applicable (the “Sellers’ Proposed Calculations”); provided, that the Closing Statement Seller Representative may only dispute any matters in Purchaser’s Proposed Calculations based on (ix) was not prepared non-compliance with the definitions of Net Working Capital, Debt Amount and Transaction Expenses, and (y) mathematical errors in accordance with this Section 1.4 or (ii) contained arithmetic errors, the parties computation of Purchaser’s Proposed Calculations. The Seller Representative shall be deemed to have accepted agreed with all other items and agreed to amounts included in Purchaser’s Closing Payment Calculation Statement that are not identified in the Closing StatementSellers’ Proposed Calculations. If Buyer so notifies the Seller Representative does not dispute any aspect thereof or the amount of such an objection to any of Purchaser’s Proposed Calculations during the Review Period, then Purchaser’s Closing Statement, Payment Calculation Statement and Purchaser’s Proposed Calculations shall be conclusive and binding upon the parties shall within 15 days following the date of such notice (the "RESOLUTION PERIOD") attempt to resolve their differencesParties.
(c) At In the conclusion event of a dispute with respect to the Sellers’ Proposed Calculations, Purchaser and the Seller Representative shall attempt to reconcile differences and any resolution by them as to any disputed amounts shall be final, binding and conclusive on the Parties. If Purchaser and the Seller Representative are unable to reach a resolution to such effect within thirty (30) days after Purchaser’s receipt of the Resolution PeriodSellers’ Proposed Calculations, any amounts remaining in dispute shall, at Purchaser and the election of either party, be submitted to Price Waterhouse Seller Representative shall engage BDO USA LLP (the "NEUTRAL AUDITOR"“Independent Accounting Firm”), acting as experts and not as arbitrators, to resolve the remaining disputed items (the “Remaining Disputed Items”) in accordance with the terms of this Agreement. The Neutral Auditor Independent Accounting Firm shall be engaged directed to, within five thirty (30) days after an election such submission, determine and report to the Parties upon the Remaining Disputed Items with respect to Purchaser’s Closing Payment Calculation Statement, with a written explanation in reasonable detail of the resolution of each Remaining Disputed Item, and such report shall be final, binding and conclusive on the Parties hereto absent manifest error. The Independent Accounting Firm shall be authorized to resolve only the Remaining Disputed Items, and such resolution shall be based solely on the materials submitted by the Parties and not on independent review, and, in any event, shall be no less than the lesser of the amount claimed by either party to submit its objections to Purchaser or the Neutral AuditorSeller Representative, and each party agrees shall be no greater than the greater of the amount claimed by either Purchaser or the Seller Representative. The statement and amount selected by the Independent Accounting Firm are referred to herein as the “Final Purchase Price Calculation Statement” and the “Final Purchase Price,” respectively. Purchaser and the Seller Representative shall execute, if requested by the Neutral AuditorIndependent Accounting Firm, a an engagement letter containing reasonable engagement letterand customary terms (including that all negotiations and submissions to the Independent Accounting Firm shall be treated as confidential information). All fees The Independent Accounting Firm shall determine the allocation of its costs and expenses based upon the percentage by which the portion of the contested amount not awarded to Purchaser, on the one hand, or the Seller Representative, on the other hand, bears to the amount actually contested by or on behalf of such Parties. For example, if the Seller Representative claims the Final Purchase Price is $1,000 more than the amount determined by Purchaser, and Purchaser contests only $500 of the amount claimed by the Seller Representative, and if the Independent Accounting Firm ultimately resolves the dispute by awarding the Seller Representative $300 of the $500 contested, then the costs and expenses of arbitration will be allocated 60% (i.e., 300/500) to Purchaser and 40% (i.e., 200/500) to the Neutral Auditor shall be borne equally Seller Representative. Absent fraud or manifest error, the decision rendered by Seller and Buyer. The Neutral Auditor shall act as an arbitrator the Independent Accounting Firm pursuant to determine, based solely on the written presentations by Seller and Buyer made within 15 days of the Neutral Auditor's engagement or such other reasonable period of time to which the parties agree, and not by independent review, only those issues still in dispute. The Neutral Auditor's determination shall be made within 30 days after Seller's and Buyer's written presentations have been made, shall be set forth in a written statement delivered to Seller and Buyer and shall be this Section 2.4(c) is final, binding, conclusive and nonappealablebinding. The term "FINAL CLOSING STATEMENT" shall mean Any Party may seek specific enforcement or take other necessary legal action to enforce any decision by the definitive Closing Statement agreed to by Seller and Buyer Independent Accounting Firm under this Section 2.4.
(d) Upon the determination, in accordance with Section 1.4(b) or 2.4, of the definitive Closing Statement resulting from Final Purchase Price and the determination made by of the Neutral Auditor Final Net Working Capital, the Final Debt Amount and the Final Company Transaction Expenses pursuant to Section 2.4(c):
(i) If the Final Purchase Price is greater than the Estimated Purchase Price, then Purchaser shall, within five (5) Business Days of the date upon which the Final Purchase Price is determined, pay the amount of any such excess to the Seller Representative (for further distribution to each Seller of its Pro Rata Share of such payment) in accordance with written instructions provided by the Seller Representative to Purchaser, and Purchaser and the Seller Representative shall provide joint written instructions to the Escrow Agent to pay the Adjustment Escrow Amount to the Seller Representative (for further distribution to each Seller of its Pro Rata Share of such payment); and
(ii) If the Final Purchase Price is less than the Estimated Purchase Price, then the Seller Representative and Purchaser shall, within five (5) Business Days of the date upon which the Final Purchase Price is determined, provide joint written instructions to the Escrow Agent to pay the amount of any such deficiency to Purchaser; provided that, if such deficiency (stated as a positive number) is (a) greater than the Adjustment Escrow Amount, the Sellers shall pay Purchaser the amount of such excess, or (b) lesser than the Adjustment Escrow Amount, Purchaser and the Seller Representative shall provide joint written instructions to the Escrow Agent to pay the remaining portion of the Adjustment Escrow Amount to the Seller Representative (for further distribution to each Seller of its Pro Rata Share of such payment).
(e) Any payment to be made pursuant to Section 2.4 shall be, subject to Section 2.7, paid in cash and made to the account designated in writing by Purchaser or the Seller Representative, as applicable. Any rights accruing to any Party under this Section 1.4(c) (2.4 shall be in addition to those items theretofore agreed and independent of the rights to by Seller indemnification under Article X and Buyer)any payments made to any Party under this Section 2.4 shall not be subject to the requirements of Article X; provided, however, the recoverable Damages with respect to any indemnification claim pursuant to Article X shall be net of the amount of any specific reserves or any specific accruals established on or included as a liability in the calculation of the Final Purchase Price with respect to the facts and circumstances giving rise to such indemnification claim.
Appears in 1 contract
Purchase Price Adjustment. (a) As soon Each of the Sellers previously has delivered to Purchaser an unaudited balance sheet (the "Base Date Balance Sheet") as practicable but not later than 60 of March 31, 1996 (the "Balance Sheet Date"), (the book value of the Assets included in such balance sheet less the book value of the Assumed Obligations included in such balance sheet is hereinafter referred to as the "Base Date Net Asset Value").
(b) Within 45 days following the Closing Transfer Date, Seller each of the Sellers shall prepare and deliver to Buyer Purchaser a working capital statement of the Company balance sheet as of the close of business on the Closing Transfer Date (the "CLOSING STATEMENTClosing Date Balance Sheet") setting forth the current assets minus the current liabilities ), together with a calculation of the Company book value of the Assets and Assumed Obligations determined on the same basis as the March 31, 1996, balance sheet (such book value of such Assets less such book value of such Assumed Obligations is hereinafter referred to as the "WORKING CAPITALClosing Date Net Asset Value") on ). Purchaser and its representatives shall have the basis described in Annex B, accompanied by a report from Arthur Andersen LLP; PROVIDED, HOWEVER, if right to review all work papers and procedures used to prepare the transactions contemplaxxx xx Xxxxxxx 4.11(a) or (b) occur, Base Date Balance Sheet and the Closing Statement will be prepared as if the Com pany did not own the Dermablend Business or the National Cosmetics Business Date Balance Sheet and the Iman Business as calculation of the Base Date Net Asset Value and the Closing Date Net Asset Value, and shall have the right to perform any other reasonable procedures necessary to verify the accuracy thereof. Unless Purchaser, within 20 days after delivery to Purchaser of the Closing DateDate Balance Sheet, as the case may be; PROVIDED FURTHER notifies Sellers in writing that if Buyer retains the Dermablend Business and, pursuant to Section 4.11(b), sells the National Cosmetics Business and the Iman Business, the Dermablend Business will also include the net accounts receivable (other than the Designated Receivables (as defined in Section 4.11)), bank overdraft, accounts payable and accrued expenses related it objects to the National Cosmetics Business and the Iman Business. Seller and its authorized representatives shall have reasonable access to all relevant books and records and employees of the Company following Base Date Balance Sheet or the Closing Date Balance Sheet or the calculation of the Base Date Net Asset Value or the Closing Date Net Asset Value, and specifies the basis for such objection, the Base Date Balance Sheet and the Closing Date Balance Sheet and the calculation of the Base Date Net Asset Value and the Closing Date Net Asset Value shall become final and binding upon the parties for purposes of this Agreement. If Purchaser and Sellers are unable to resolve any objections within 10 days after any such notification has been given, the dispute shall be submitted to Coopers & Lybrand, L.L.P. (or another nationally recognized public accounting xxxx xxtually agreed upon by Purchaser and Sellers). Such accounting firm shall make a final and binding determination as to the extent required matter or matters in dispute. Purchaser and Sellers agree to complete preparation of the Closing Statement, including, without limitation, preparation of any financial reports or schedules needed to complete the Closing Statement. Seller cooperate with each other and Buyer shall split equally the cost of preparing and delivering the Closing Statement.
(b) After receipt of the Closing Statement, Buyer shall have 15 days to review it. Buyer and its with each other's authorized representatives shall have reasonable access to Seller's accountants to the extent required to complete their review of the Closing Statement, including, without limitation, the accountants' work papers used in preparation thereof. Unless Buyer delivers written notice to Seller on or prior to the 15th day after receipt of the Closing Statement specifying in reasonable detail its objections to the Closing Statement on the grounds that the Closing Statement (i) was not prepared in accordance with this Section 1.4 or (ii) contained arithmetic errors, the parties shall be deemed to have accepted and agreed to the Closing Statement. If Buyer so notifies Seller of such an objection to the Closing Statement, the parties shall within 15 days following the date of such notice (the "RESOLUTION PERIOD") attempt order to resolve their differencesany and all matters in dispute as soon as practicable.
(c) At Within 10 days after the conclusion Closing Date Net Asset Value has been finally determined, the difference, if any, between the Base Date Net Asset Value and the Closing Date Net Asset Value shall be added to the principal amount of the Resolution Periodpromissory note described in Section 3.1(b) (if the Closing Date Net Asset Value exceeds the Base Date Net Asset Value) or deducted from the principal amount of the promissory note described in Section 3.1(b) (if the Base Date Net Asset Value exceeds the Closing Date Net Asset Value).
(d) Purchaser and Sellers, any amounts remaining in dispute shallthe aggregate, at each shall bear one-half of the election of either partyfees, be submitted to Price Waterhouse (the "NEUTRAL AUDITOR"). The Neutral Auditor shall be engaged within five days after an election by either party to submit its objections to the Neutral Auditor, and each party agrees to execute, if requested by the Neutral Auditor, a reasonable engagement letter. All fees costs and expenses of the Neutral Auditor shall be borne equally by Seller and Buyer. The Neutral Auditor shall act as an arbitrator accounting firm retained under subsection (c) to determine, based solely on the written presentations by Seller and Buyer made within 15 days of the Neutral Auditor's engagement or such other reasonable period of time to which the parties agree, and not by independent review, only those issues still in resolve any dispute. The Neutral Auditor's determination shall be made within 30 days after Seller's and Buyer's written presentations have been made, shall be set forth in a written statement delivered to Seller and Buyer and shall be final, binding, conclusive and nonappealable. The term "FINAL CLOSING STATEMENT" shall mean the definitive Closing Statement agreed to by Seller and Buyer in accordance with Section 1.4(b) or the definitive Closing Statement resulting from the determination made by the Neutral Auditor in accordance with this Section 1.4(c) (in addition to those items theretofore agreed to by Seller and Buyer).
Appears in 1 contract
Samples: Asset Purchase Agreement (Castle Dental Centers Inc)
Purchase Price Adjustment. The Purchase Price shall be the amount determined under Section 2.3(a) above increased or reduced (the "Purchase Price Adjustment") by the difference between the Estimated Closing Date Valuations and the Closing Date Valuations, which increase or reduction shall be determined based on the following procedure:
(a) As On March 25, 2002 Seller shall generate reports as of the Closing Date reflecting its determination of the Accounts Receivable and Inventory before any reserves reflected on the Most Recent Statements of Inventory and Accounts and thereafter Seller and Buyer shall jointly conduct a review of Accounts Receivable and Inventory, including, at the request of either party, a physical inventory of the Inventory.
(b) Buyer must, as soon as reasonably practicable after the Closing Date but not later than 60 twenty (20) days following after the Closing Date, Seller shall prepare and deliver a statement with respect to Buyer a working capital statement of the Company as of the close of business on the Closing Date Valuations (the "CLOSING STATEMENTClosing Statement") setting forth the current assets minus the current liabilities of the Company (the "WORKING CAPITAL") on the basis described in Annex B, accompanied by a report from Arthur Andersen LLP; PROVIDED, HOWEVER, if the transactions contemplaxxx xx Xxxxxxx 4.11(a) or (b) occur, the Closing Statement will be prepared as if the Com pany did not own the Dermablend Business or the National Cosmetics Business and the Iman Business Buyer's calculation as of the Closing Date, as the case may be; PROVIDED FURTHER that if Buyer retains the Dermablend Business andin reasonable detail, pursuant to Section 4.11(b), sells the National Cosmetics Business and the Iman Business, the Dermablend Business will also include the net accounts receivable (other than the Designated Receivables (as defined in Section 4.11)), bank overdraft, accounts payable and accrued expenses related to the National Cosmetics Business and the Iman Business. Seller and its authorized representatives shall have reasonable access to all relevant books and records and employees of the Company following value of the Accounts Receivable and Inventory as of the Closing Date as compared to the extent required to complete preparation value of the Closing StatementRecent Accounts Receivable and Recent Inventory determined in accordance with the procedures and methodologies set forth on Schedule 2.4 hereto, includingas well as a final determination set forth on an amended Schedule 1.7 of those Category II Employees it intends to terminate on or before June 30, without limitation, preparation of any financial reports or schedules needed to complete the Closing Statement. Seller and Buyer shall split equally the cost of preparing and delivering the Closing Statement2002.
(bc) After Within twenty (20) days after receipt of the Closing Statement, Seller must give Buyer shall have 15 days written notice of any exceptions to review it. Buyer and its authorized representatives shall have reasonable access to SellerBuyer's accountants to the extent required to complete their review calculation of the Closing StatementDate Valuations.
(i) If Seller has not given Buyer such written notice within that twenty-day period, includingthen the values set forth in the Closing Statement will be conclusive and binding on the parties.
(ii) If Seller gives Buyer such written notice within that twenty-day period, without limitation, the accountants' work papers used in preparation thereofthen Buyer and Seller shall promptly endeavor to resolve any disputes. Unless If Seller and Buyer delivers fail to reach an agreement with respect to such matters on or before twenty (20) days after Seller has delivered written notice to Seller on or prior to the 15th day after receipt Buyer of the Closing Statement specifying in reasonable detail its objections to the Closing Statement on the grounds that the Closing Statement (i) was not prepared in accordance with this Section 1.4 or (ii) contained arithmetic errors, the parties shall be deemed to have accepted and agreed to the Closing Statement. If Buyer so notifies Seller of such an objection exceptions to the Closing Statement, then, as to such matters remaining in dispute, the parties Seller and the Buyer shall within 15 days following the date of such notice promptly retain an accounting firm (the "RESOLUTION PERIODFirm") attempt acceptable to resolve their differences.
(c) At the conclusion Buyer and Seller, which has not rendered accounts or other services to either Buyer or Seller for at least three years. The Firm shall make an independent determination of any matters in dispute and deliver an opinion to Buyer and Seller within 45 days of the Resolution PeriodFirm's retention, which determination will be conclusive and binding on the parties. If, following any amounts remaining in dispute shalldeterminations made by the Firm, at the election of either party, be submitted to Price Waterhouse (the "NEUTRAL AUDITOR"). The Neutral Auditor Closing Date Valuations shall be engaged within five days after an election $50,000 of the Closing Statement prepared by either party to submit its objections to the Neutral AuditorBuyer, and each party agrees to execute, if requested by the Neutral Auditor, a reasonable engagement letter. All Seller shall be responsible for all fees and expenses of the Neutral Auditor shall be borne equally by Seller and BuyerFirm. The Neutral Auditor shall act as an arbitrator to determineIf, based solely on the written presentations by Seller and Buyer made within 15 days of the Neutral Auditor's engagement or such other reasonable period of time to which the parties agree, and not by independent review, only those issues still in dispute. The Neutral Auditor's determination shall be made within 30 days after Seller's and Buyer's written presentations have been made, shall be set forth in a written statement delivered to Seller and Buyer and shall be final, binding, conclusive and nonappealable. The term "FINAL CLOSING STATEMENT" shall mean the definitive Closing Statement agreed to by Seller and Buyer in accordance with Section 1.4(b) or the definitive Closing Statement resulting from the determination following any determinations made by the Neutral Auditor in accordance with this Section 1.4(c) (in addition to those items theretofore agreed to Firm, the Closing Date Valuations are not within $50,000 of the Closing Statement prepared by Seller Buyer, Buyer shall be responsible for all fees and Buyer)expenses of the Firm.
Appears in 1 contract
Purchase Price Adjustment. (a) As soon as practicable but not later than 60 On or before sixty (60) days following the Closing Date, Seller Buyer shall prepare and deliver to Buyer Seller a working capital statement balance sheet of the Company Princeton Business as of the close of business on the day immediately preceding the Closing Date Date, which balance sheet shall be reported on by Buyer's independent public accountants as having been properly prepared in accordance with Closing GAAP (such balance sheet is referred to herein as the "Closing Balance Sheet").
(b) During the 45-day period following Seller's receipt of the Closing Balance Sheet, Seller and its independent public accountants will be permitted to review the working papers of Buyer and Buyer's independent public accountants relating to the Closing Balance Sheet and any financial records relevant to the preparation of the Closing Balance Sheet. Buyer and Buyer's independent public accountants will also be available from time to time to discuss questions raised by Seller and its independent public accountants. The Closing Balance Sheet shall become final and binding upon the parties on the 45th day following receipt thereof by Seller, unless Seller gives written notice of its disagreement ("Notice of Disagreement") to Buyer prior to such date. If Seller gives a Notice of Disagreement to Buyer, then within 15 days thereafter, Seller shall give written notice (the "CLOSING STATEMENTSecond Notice") setting forth to Buyer specifying in reasonable detail the current assets minus nature of, and reasons for, any disagreement so asserted. If a Notice of Disagreement is received by Buyer in a timely manner, then the current liabilities Closing Balance Sheet (as revised in accordance with clause (x) or (y) below) shall become final and binding upon the parties on the earlier of (x) the Company date the parties hereto resolve in writing any differences they have with respect to any matter specified in the Notice of Disagreement or (y) the date any disputed matters are finally resolved in writing by the Arbitrator (as defined in Section 2.3(c)).
(c) During the 30-day period following the delivery of a Second Notice, Seller and Buyer shall seek in good faith to resolve any differences which they may have with respect to any matter specified in the Notice of Disagreement. At the end of such 30-day period, Seller and Buyer shall submit to an arbitrator (the "WORKING CAPITALArbitrator") for review and resolution any and all matters which remain in dispute. The Arbitrator shall be Ernst & Young LLP, or if such firm is unable or unwilling to act, such other person, entity or firm as shall be agreed upon by Buyer and Seller. The Arbitrator shall render a decision resolving the matters submitted to the Arbitrator within 30 days of receipt of such submission. The decision of the Arbitrator shall be final and binding on the basis parties absent manifest error. The cost of any arbitration (including the fees of the Arbitrator) pursuant to this Section 2.3(c) shall be borne 50% by Buyer and 50% by Seller.
(d) Subject to the materiality thresholds described in Annex B, accompanied by a report from Arthur Andersen LLP; PROVIDED, HOWEVER, if the transactions contemplaxxx xx Xxxxxxx 4.11(a) or (b) occursecond and third sentences of this Section 2.3(d), the Princeton Purchase Price shall be subject to adjustment pursuant to this Section 2.3 in the event that the Relevant Closing Statement will be prepared Balance Sheets (as if the Com pany did not own the Dermablend Business or the National Cosmetics Business and the Iman Business defined in Section 11.9) indicate that Total Equity (as defined in Section 11.9) as of the close of business on the day before the Closing DateDate is greater than or less than the Reference Amount (as defined in Section 11.9). If the Relevant Closing Balance Sheets indicate that Total Equity is less than the Reference Amount by more than One Hundred Thousand U.S. Dollars ($100,000 U.S.), Seller shall pay or cause to be paid to Buyer (for Buyer's own account and, to the extent necessary, as agent for Partek Cargotec Holding Netherlands B.V. and Partek Cargotec Holding Ltd), an amount equal to the amount by which the Reference Amount exceeds Total Equity. If the Relevant Closing Balance Sheets indicate that Total Equity is greater than the Reference Amount by more than One Hundred Thousand U.S. Dollars ($100,000 U.S.), Buyer shall pay or cause to be paid to Seller (for Seller's own account and, to the extent necessary, as agent for Powerscreen International plc and Holland Lift International B.V.), an amount equal to the amount by which Total Equity exceeds the Reference Amount. Payment of the purchase price adjustment contemplated by this Section 2.3, if any, shall be made within three (3) business days after determination of the amount of the adjustment pursuant to this Section 2.3 by wire transfer of immediately available funds. The parties acknowledge and agree that (i) the Reference Amount is based on a targeted Princeton Net Asset Value (as defined in Section 11.9) of Six Million Eight Hundred Thousand U.S. Dollars ($6,800,000), a targeted Xxxxxxx Net Equity (as defined in Section 11.9) of Two Million Eight Hundred Sixty-Eight Thousand U.S. Dollars ($2,868,000), and a targeted Xxxx Net Equity (as defined in Section 11.9) of Four Million One Hundred Nineteen Thousand U.S. Dollars ($4,119,000) (or $4,641,000 if the PPM Assets (as defined in Section 11.9) are sold pursuant to the Xxxx Purchase Agreement at the same time as the closing of the purchase and sale of the shares of Terex B.V. thereunder), and (ii) the amount of any purchase price adjustment pursuant to this Section 2.3 shall be allocated among the selling parties under this Agreement, the Xxxxxxx Purchase Agreement (as defined in Section 11.9) and the Xxxx Purchase Agreement (as defined in Section 11.9) or the purchasing parties under each such agreement, as the case may be; PROVIDED FURTHER that if Buyer retains , in proportion to the Dermablend Business anddegree to which each of the actual Princeton Net Asset Value, pursuant to Section 4.11(b)actual Xxxxxxx Net Equity, sells the National Cosmetics Business and the Iman Business, the Dermablend Business will also include the net accounts receivable (other actual Xxxx Net Equity is greater than or less than the Designated Receivables (as defined in Section 4.11)), bank overdraft, accounts payable and accrued expenses related to respective targeted amount. Any disputes concerning the National Cosmetics Business and the Iman Business. Seller and its authorized representatives shall have reasonable access to all relevant books and records and employees allocation of the Company following the Closing Date to the extent required to complete preparation of the Closing Statementpurchase price adjustment, includingif any, without limitation, preparation of any financial reports or schedules needed to complete the Closing Statement. Seller and Buyer shall split equally the cost of preparing and delivering the Closing Statement.
(b) After receipt of the Closing Statement, Buyer shall have 15 days to review it. Buyer and its authorized representatives shall have reasonable access to Seller's accountants to the extent required to complete their review of the Closing Statement, including, without limitation, the accountants' work papers used in preparation thereof. Unless Buyer delivers written notice to Seller on or prior to the 15th day after receipt of the Closing Statement specifying in reasonable detail its objections to the Closing Statement on the grounds that the Closing Statement (i) was not prepared in accordance with this Section 1.4 or (ii) contained arithmetic errors, the parties shall be deemed to have accepted and agreed to the Closing Statement. If Buyer so notifies Seller of such an objection to the Closing Statement, the parties shall within 15 days following the date of such notice (the "RESOLUTION PERIOD") attempt to resolve their differences.
(c) At the conclusion of the Resolution Period, any amounts remaining in dispute shall, at the election of either party, be submitted to Price Waterhouse (the "NEUTRAL AUDITOR")Arbitrator and, within 30 days of receipt of such submission, the Arbitrator shall render a decision thereon. Such decision shall be final and binding on the parties absent manifest error. The Neutral Auditor shall be engaged within five days after an election by either party to submit its objections to cost of any arbitration (including the Neutral Auditor, and each party agrees to execute, if requested by the Neutral Auditor, a reasonable engagement letter. All fees and expenses of the Neutral Auditor Arbitrator) pursuant to this Section 2.3(d) shall be borne equally 50% by Seller and Buyer. The Neutral Auditor shall act as an arbitrator to determine, based solely on the written presentations by Seller and Buyer made within 15 days of the Neutral Auditor's engagement or such other reasonable period of time to which the parties agree, and not by independent review, only those issues still in dispute. The Neutral Auditor's determination shall be made within 30 days after Seller's and Buyer's written presentations have been made, shall be set forth in a written statement delivered to Seller and Buyer and shall be final, binding, conclusive and nonappealable. The term "FINAL CLOSING STATEMENT" shall mean the definitive Closing Statement agreed to 50% by Seller and Buyer in accordance with Section 1.4(b) or the definitive Closing Statement resulting from the determination made by the Neutral Auditor in accordance with this Section 1.4(c) (in addition to those items theretofore agreed to by Seller and Buyer)Seller.
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Purchase Price Adjustment. (aThe Purchase Price set forth in Section 1.2(a) As soon shall be subject to the adjustments as practicable but not later than 60 days following set forth below, and all references in this Agreement to the Purchase Price shall be deemed to be the Purchase Price as adjusted pursuant to this Section 1.4. Prior to the Closing Date, the Seller will deliver to the Buyer a calculation of the Seller’s good faith estimate of the Closing Working Capital Amount, which shall be prepared on a consistent basis with the accounting principles, practices, procedures, policies, methods, calculation guidelines and example calculations set forth on Schedule 1.4 (the “Working Capital Guidelines”). The Buyer will have the right to review the computation and work papers and the underlying books and records used in such calculation and approve such calculation, which approval may not be unreasonably withheld, delayed or conditioned. Such approved estimated Closing Working Capital Amount, with such changes if any as may be agreed to between the Seller and the Buyer not later than the Business Day immediately preceding the Closing Date, is the “Estimated Working Capital Amount.” The Purchase Price paid at Closing will be increased to the extent that the Estimated Working Capital Amount is greater than the Target Working Capital Amount and will be decreased to the extent that the Estimated Working Capital Amount is less than the Target Working Capital Amount.
(a) Within 60 days after the Closing Date, the Buyer shall prepare and deliver to Buyer a working capital statement of the Company as of the close of business on the Closing Date (the "CLOSING STATEMENT") setting forth the current assets minus the current liabilities of the Company (the "WORKING CAPITAL") on the basis described in Annex B, accompanied by a report from Arthur Andersen LLP; PROVIDED, HOWEVER, if the transactions contemplaxxx xx Xxxxxxx 4.11(a) or (b) occur, the Closing Statement will to the Seller. The Closing Statement shall be prepared as if on a consistent basis with the Com pany did not own Working Capital Guidelines. The Closing Statement shall set forth in reasonable detail the Dermablend Business or the National Cosmetics Business and the Iman Business as actual amount of the Closing Date, as the case may be; PROVIDED FURTHER that if Buyer retains the Dermablend Business and, pursuant to Section 4.11(b), sells the National Cosmetics Business Working Capital Amount and the Iman BusinessWorking Capital Adjustment, and (ii) the Dermablend Business will also include the net accounts receivable (other than the Designated Receivables (as defined in Section 4.11)), bank overdraft, accounts payable and accrued expenses related to the National Cosmetics Business and the Iman Business. Seller and its authorized representatives shall have reasonable access to all relevant books and records and employees Buyer’s recalculation of the Company following Purchase Price based on the Closing Date to the extent required to complete preparation Buyer’s recalculations of the Closing Statement, including, without limitation, preparation of any financial reports or schedules needed to complete the Closing Statement. Seller and Buyer shall split equally the cost of preparing and delivering adjustments contained in the Closing Statement.
(b) After receipt The Seller shall deliver to the Buyer, within 30 days after the Buyer’s delivery of the Closing Statement, Buyer shall have 15 days to review it. Buyer and its authorized representatives shall have reasonable access to either a notice indicating that the Seller accepts the Closing Statement or a statement describing the Seller's accountants ’s objections to the extent required Closing Statement, which statement of objections shall describe in reasonable detail the nature and amount of the Seller’s objections. If the Seller does not deliver a notice objecting to complete their review the Closing Statement delivered by the Buyer within 30 days after the Buyer’s delivery of the Closing Statement, including, without limitation, the accountants' work papers used in preparation thereof. Unless Buyer delivers written notice to Seller on or prior to the 15th day after receipt of the Closing Statement specifying in reasonable detail its objections shall be final and binding on the Parties.
(c) If the Seller objects to the Closing Statement on and any such objections are not resolved by the grounds that Seller and the Closing Statement (i) was not prepared in accordance with this Section 1.4 or (ii) contained arithmetic errors, Buyer within 60 days after the parties shall be deemed to have accepted and agreed to the Closing Statement. If Buyer so notifies Seller Buyer’s delivery of such an objection to the Closing Statement, the parties Buyer and the Seller shall within 15 days following (A) jointly prepare and sign a statement setting forth (1) those objections (if any) that the date Buyer and the Seller have resolved and the resolution of such notice objections and (2) those objections that remain unresolved and (B) engage the "RESOLUTION PERIOD") attempt Neutral Accountant to resolve their differences.
(c) At the conclusion such unresolved objections. Each of the Resolution Period, any amounts remaining in dispute shall, at Buyer and the election of either party, be submitted to Price Waterhouse (the "NEUTRAL AUDITOR"). The Neutral Auditor Seller shall be engaged within five days after an election by either party to submit its objections provide to the Neutral AuditorAccountant any information of such Party that the Neutral Accountant reasonably requests for purposes of resolving such unresolved objections. The Buyer and the Seller shall instruct the Neutral Accountant that (X) the scope of its review and authority shall be limited to resolving such unresolved objections, (Y) the Neutral Accountant shall act as an expert and not as an arbitrator, and (Z) the Neutral Accountant shall issue a ruling which sets forth the resolution of each party agrees to execute, if requested such unresolved objection and includes a statement reflecting the Neutral Accountant’s resolution of such unresolved objections. The resolution by the Neutral Auditor, Accountant of such unresolved objections and calculation of Closing Working Capital Amount prepared by the Neutral Accountant giving effect thereto shall be conclusive and binding upon the Buyer and the Seller. The Buyer and the Seller each agrees that the procedures set forth in this Section 1.4(c) for resolving disputes with respect to the Closing Statement shall be the sole and exclusive method for resolving any such disputes; provided that this provision shall not prohibit any Party from instituting litigation to enforce the determination of the Closing Statement and the Closing Working Capital Amount by the Neutral Accountant in a reasonable engagement lettercourt of competent jurisdiction determined in accordance with Section 12.12. All The Buyer and the Seller each shall share equally the fees and expenses of the Neutral Auditor Accountant for its services under this Section 1.4(c).
(d) Upon the determination, in accordance with Sections 1.4(a)-(c), of the final calculations of the amounts of (i) the Closing Working Capital Amount and (ii) the Working Capital Adjustment, the Purchase Price shall be borne equally by Seller and Buyerrecalculated using such finally determined amounts. The Neutral Auditor shall act as an arbitrator to determine, based solely term “Final Purchase Price” means the recalculation of the Purchase Price shown on the written presentations Final Closing Statement. If the Closing Working Capital Amount (as adjusted by Seller and Buyer made within 15 days agreement of the Parties as set forth herein or by the determination of the Neutral Auditor's engagement Accountant as set forth herein) exceeds the Estimated Working Capital Amount, the Buyer shall pay the Seller the amount of such excess by wire transfer or such other reasonable period delivery of time to immediately available funds, within three Business Days after the date on which the parties agreeFinal Closing Statement is finally determined pursuant to this Section 1.4 (plus interest thereon at the rate of 3.25% per annum, and not compounded monthly, from the Closing Date). If the Estimated Working Capital Amount exceeds the Closing Working Capital Amount (as adjusted by independent review, only those issues still in dispute. The Neutral Auditor's determination shall be made within 30 days after Seller's and Buyer's written presentations have been made, shall be agreement of the Parties as set forth in a written statement delivered to herein or by the determination of the Neutral Accountant as set forth herein), the Seller and shall pay the Buyer and shall be finalthe amount of such excess by wire transfer or other delivery of immediately available funds, binding, conclusive and nonappealable. The term "FINAL CLOSING STATEMENT" shall mean within three Business Days after the definitive date on which the Final Closing Statement agreed is finally determined pursuant to by Seller and Buyer in accordance with this Section 1.4(b) or 1.4 (plus interest thereon at the definitive Closing Statement resulting rate of 3.25% per annum, compounded monthly, from the determination made by the Neutral Auditor in accordance with this Section 1.4(c) (in addition to those items theretofore agreed to by Seller and BuyerClosing Date).
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Purchase Price Adjustment. (a) As soon as practicable but not later than 60 days following The Buyer shall use its reasonable efforts to cause to be prepared and delivered to the Seller the Audited Closing Date, Seller shall prepare Date Balance Sheet and deliver to Buyer a working capital statement of setting forth the Company Working Capital Balance as of the close of business on the Closing Date (such statement, as it may be adjusted pursuant to Section 2.8(b), the "CLOSING STATEMENTClosing Date Statement") setting as soon as practicable after the Closing Date, but in no event shall such delivery occur later than one hundred twenty (120) days following the Closing Date. The Closing Date Statement shall be prepared in accordance with GAAP and consistent with the methodologies set forth in Schedule 1.1 of Exhibit B and shall include the current assets minus the current liabilities Buyer's calculation of the Company Working Capital Adjustment. Upon receipt of the Audited Closing Date Balance Sheet and the Closing Date Statement, the Seller and the Seller's independent accountants shall be permitted during the succeeding thirty (30) day period to examine the Audited Closing Date Balance Sheet, the Closing Date Statement and the work papers used or generated in connection with the preparation of such documents and such other documents as the Seller may reasonably request in connection with its review. If, within thirty (30) days following delivery of the Audited Closing Date Balance Sheet and the Closing Date Statement, the Seller shall not have given the Buyer notice of the Seller's objection to the Audited Closing Date Balance Sheet or any of the computations in the Closing Date Statement (which notice shall contain a statement of the Basis of such objection), then the Audited Closing Date Balance Sheet and the Closing Date Statement will be final and binding upon the Parties, absent manifest error. If the Seller gives notice to the Buyer of the Seller's objection ("Notice of Objection"), and the Buyer and the Seller are unable to resolve the issues in dispute within thirty (30) days after delivery of the Notice of Objection (the "WORKING CAPITALResolution Period"), each of the Buyer's and the Seller's positions with respect to the Audited Closing Date Balance Sheet and the computation of the Working Capital Adjustment in the Closing Date Statement will be submitted to Deloitte Touche LLP, independent certified public accountants, or such other firm of independent certified public accountants mutually selected by the Parties (the "Accountants") on for resolution. Within five (5) days after the basis described in Annex B, accompanied by a report from Arthur Andersen LLP; PROVIDED, HOWEVERend of the Resolution Period, if the transactions contemplaxxx xx Xxxxxxx 4.11(aParties have been unable to resolve the issues in dispute, the Parties shall agree upon the terms of and execute an engagement letter with the Accountants and the terms of such letter shall not conflict with any of the terms set forth in this Section 2.8(a) (the date of such engagement letter shall be referred to as the "Commencement Date"). Within fifteen (15) days after the Commencement Date, each Party shall submit to the Accountants the Audited Closing Date Balance Sheet, its computation of the Working Capital Adjustment and such workpapers and other documents and information relating to the disputed issues as the Accountants may request and are available to that Party (or its independent public accountants), and each Party will be afforded the opportunity to present to the Accountants any material relating to such issues and to discuss the same with the Accountants (provided all such submissions and discussions shall be completed within fifteen (15) days after the Commencement Date (the "Submission Deadline")). Within fifteen (15) days after the Submission Deadline, the Accountants shall select either the Buyer's or the Seller's position on each disputed matter (that has not otherwise been settled prior to the submission of the Buyer's and the Seller's positions to the Accountants) in the Audited Closing Date Balance Sheet and the Working Capital Adjustment in its entirety and such selection shall be binding and conclusive on the Parties and will be deemed to be the Audited Closing Date Balance Sheet and the final Working Capital Adjustment for the Closing Date Statement. All fees of the Accountants for such determination will be borne by the Party whose positions have a net negative economic adjustment, taking into account all disputed matters that have not been otherwise settled prior to the submission of the Buyer's and the Seller's positions to the Accountants. The Accountants shall have the authority to resolve any ambiguities in the dispute resolution procedure outlined in this Section 2.8(a).
(b) Within five (5) Business Days of the completion of the computations required by Section 2.8(a), (i) if the Working Capital Balance in the Audited Closing Date Balance Sheet is less than $15 million, then the Seller shall pay to the Buyer an amount equal to the Working Capital Adjustment plus interest thereon, accrued on and after the Closing Date until the date of such payment at the rate of 6% per annum and (ii) if the Working Capital Balance in the Audited Closing Date Balance Sheet is greater than $15 million, then the Buyer shall pay to the Seller an amount equal to the Working Capital Adjustment plus interest thereon, accrued on and after the Closing Date until the date of such payment at the rate of 6% per annum, provided, however, that no such interest shall accrue under clauses (i) or (bii) occurabove if such payment of the Working Capital Adjustment, is made on or prior to March 31, 2003. In either case, any such amounts shall be paid by wire transfer of immediately available funds to such account or accounts of the Closing Statement will be prepared as if the Com pany did not own the Dermablend Business Buyer or the National Cosmetics Business and Seller, as the Iman Business case may be, as of may be designated by the Closing DateBuyer or the Seller, as the case may be; PROVIDED FURTHER provided, however, that if amounts owed by the Seller to the Buyer retains may be netted against amounts owed by the Dermablend Business andBuyer to the Seller, and vise versa. Any interest payable pursuant to this Section 4.11(b), sells 2.8(b) shall be payable at the National Cosmetics Business same time as the payment to which it relates and shall be calculated on the basis of a year of 365 days and the Iman Business, the Dermablend Business will also include the net accounts receivable (other than the Designated Receivables (as defined in Section 4.11)), bank overdraft, accounts payable and accrued expenses related to the National Cosmetics Business and the Iman Business. Seller and its authorized representatives shall have reasonable access to all relevant books and records and employees actual number of the Company following the Closing Date to the extent required to complete preparation of the Closing Statement, including, without limitation, preparation of any financial reports or schedules needed to complete the Closing Statement. Seller and Buyer shall split equally the cost of preparing and delivering the Closing Statement.
(b) After receipt of the Closing Statement, Buyer shall have 15 days to review it. Buyer and its authorized representatives shall have reasonable access to Seller's accountants to the extent required to complete their review of the Closing Statement, including, without limitation, the accountants' work papers used in preparation thereof. Unless Buyer delivers written notice to Seller on or prior to the 15th day after receipt of the Closing Statement specifying in reasonable detail its objections to the Closing Statement on the grounds that the Closing Statement (i) was not prepared in accordance with this Section 1.4 or (ii) contained arithmetic errors, the parties shall be deemed to have accepted and agreed to the Closing Statement. If Buyer so notifies Seller of such an objection to the Closing Statement, the parties shall within 15 days following the date of such notice (the "RESOLUTION PERIOD") attempt to resolve their differencesfor which due.
(c) At After the conclusion Closing Date, the Seller will furnish, or cause to be furnished to the Buyer, its accountants and auditors, upon request of the Resolution PeriodBuyer and as promptly as practicable, any amounts remaining in dispute shall, at such information and assistance as is reasonably necessary for the election of either party, Buyer to cause to be submitted to Price Waterhouse prepared the Audited Closing Date Balance Sheet and the Closing Date Statement.
(the "NEUTRAL AUDITOR"). The Neutral Auditor shall be engaged within five days after an election by either party to submit its objections to the Neutral Auditor, and each party agrees to execute, if requested by the Neutral Auditor, a reasonable engagement letter. All fees and expenses of the Neutral Auditor shall be borne equally by Seller and Buyer. The Neutral Auditor shall act d) Except as an arbitrator to determine, based solely on the written presentations by Seller and Buyer made within 15 days of the Neutral Auditor's engagement or such other reasonable period of time to which the parties agree, and not by independent review, only those issues still in dispute. The Neutral Auditor's determination shall be made within 30 days after Seller's and Buyer's written presentations have been made, shall be set forth in a written statement delivered to Seller and Section 2.8(a), the Buyer and the Seller shall be final, binding, conclusive each bear its own expenses incurred in connection with the preparation and nonappealable. The term "FINAL CLOSING STATEMENT" shall mean review of the definitive Audited Closing Statement agreed to by Seller Date Balance Sheet and Buyer in accordance with Section 1.4(b) or the definitive Closing Statement resulting from the determination made by the Neutral Auditor in accordance with this Section 1.4(c) (in addition to those items theretofore agreed to by Seller and Buyer)Date Statement.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Alpha Natural Resources, Inc.)
Purchase Price Adjustment. (a) As soon as practicable but not later than 60 Within 30 days following after the Closing Date, Seller Parent shall prepare and deliver to Buyer the Stockholder Representative a working capital statement of the Company as of the close of business on the Closing Date (the "CLOSING STATEMENT"“Closing Statement”) setting forth in reasonable detail Parent’s calculation of Closing Cash, Closing Non-Cash Working Capital, the current assets minus deviation of Closing Cash from Estimated Closing Cash, the current liabilities deviation of Closing Non-Cash Working Capital from Estimated Closing Non-Cash Working Capital and the Company (the "WORKING CAPITAL") on the basis described in Annex B, accompanied by a report from Arthur Andersen LLP; PROVIDED, HOWEVER, if the transactions contemplaxxx xx Xxxxxxx 4.11(a) or Adjustment Amount.
(b) occurOn the 30th day following the delivery of the Closing Statement to the Stockholder Representative, the Closing Statement will shall become final and binding on all parties hereto and all Stockholders unless, on or prior to such 30th day, the Stockholder Representative shall have delivered to Parent a statement describing in reasonable detail the nature, amount and basis of each objection of the Stockholder Representative to the Closing Statement. During such 30-day period, the Stockholder Representative and its advisors (including its accountants) shall be prepared permitted to review the working papers of Parent and its advisors (including its accountants) relating to the Closing Statement, and such 30-day period shall be extended by one day for each day such working papers are not made available to the Stockholder Representative.
(c) If the Stockholder Representative timely objects to the Closing Statement, such objections shall be resolved as if set forth below. In connection therewith, Parent and its advisors (including its accountants) shall be permitted to review the Com pany did not own working papers of the Dermablend Business or the National Cosmetics Business Stockholder Representative and its advisors (including its accountants) relating to such objections.
(i) Parent and the Iman Business as Stockholder Representative shall first use their reasonable best efforts to resolve such objections in good faith.
(ii) If Parent and the Stockholder Representative are able to resolve such objections within 30 days after delivery of such statement of objections, Parent and the Stockholder Representative, within such 30-day period, shall jointly prepare and sign a statement setting forth in reasonable detail the calculation of Closing Cash, Closing Non-Cash Working Capital, the deviation of Closing Cash from Estimated Closing Cash, the deviation of Closing Non-Cash Working Capital from Estimated Closing Non-Cash Working Capital and the Adjustment Amount, which calculation shall reflect the resolution of objections agreed to by Parent and the Stockholder Representative and which shall be final and binding on all parties hereto and all Stockholders.
(iii) If Parent and the Stockholder Representative do not reach a resolution of all objections set forth in such statement of objections within 30 days after delivery of such statement of objections, Parent and the Stockholder Representative shall, within 15 days after the expiration of such 30-day period, (A) jointly prepare and sign a statement setting forth (1) those objections (if any) that Parent and the Stockholder Representative have resolved and the resolution of such objections, which resolutions shall be final and binding on all parties hereto and all Stockholders, and (2) those objections which remain unresolved (the “Unresolved Objections”), and (B) engage the Neutral Accountant to resolve the Unresolved Objections.
(iv) Parent and the Stockholder Representative shall jointly submit to the Neutral Accountant, within 5 days after the date of the Closing Date, engagement of the Neutral Accountant (as evidenced by the case may be; PROVIDED FURTHER that if Buyer retains date of the Dermablend Business and, pursuant to Section 4.11(bengagement agreement), sells the National Cosmetics Business and the Iman Business, the Dermablend Business will also include the net accounts receivable (other than the Designated Receivables (as defined in Section 4.11)), bank overdraft, accounts payable and accrued expenses related to the National Cosmetics Business and the Iman Business. Seller and its authorized representatives shall have reasonable access to all relevant books and records and employees of the Company following the Closing Date to the extent required to complete preparation a copy of the Closing Statement, includinga copy of the statement of objections delivered by the Stockholder Representative to Parent, without limitationand the joint statement referred to in paragraph (iii) above. Each of Parent and the Stockholder Representative shall submit to the Neutral Accountant (with a copy delivered to the other on the same day), preparation within 15 days after the date of the engagement of the Neutral Accountant, a memorandum (which may include supporting exhibits) setting forth their respective positions on the Unresolved Objections. Each of Parent and the Stockholder Representative may (but shall not be required to) submit to the Neutral Accountant (with a copy delivered to the other on the same day), within 30 days after the date of the engagement of the Neutral Accountant, a memorandum responding to the initial memorandum submitted to the Neutral Accountant by the other. Unless requested by the Neutral Accountant in writing, neither Parent nor the Stockholder Representative may present any financial reports additional information or schedules needed arguments to complete the Closing Statement. Seller and Buyer shall split equally the cost of preparing and delivering the Closing StatementNeutral Accountant, either orally or in writing.
(bv) After receipt Parent and the Stockholder Representative shall instruct the Neutral Accountant that (A) the scope of its review and authority shall be limited to resolving the Closing StatementUnresolved Objections and (B) the Neutral Accountant shall issue a ruling, Buyer shall have 15 days to review it. Buyer which sets forth the resolution of each Unresolved Objection and its authorized representatives shall have reasonable access to Seller's accountants to the extent required to complete their review of the Closing Statement, including, without limitation, the accountants' work papers used in preparation thereof. Unless Buyer delivers written notice to Seller on or prior to the 15th day after receipt of the Closing Statement specifying includes a statement setting forth in reasonable detail its objections the calculation of Closing Cash, Closing Non-Cash Working Capital, the deviation of Closing Cash from Estimated Closing Cash, the deviation of Closing Non-Cash Working Capital from Estimated Closing Non-Cash Working Capital, and the Adjustment Amount, each reflecting the Neutral Accountant’s resolution of the Unresolved Objections. The resolution of each Unresolved Objection shall consist of the determination of an appropriate value for each Closing Statement item that is the subject of an Unresolved Objection, which value shall be equal to one of, or between, the values proposed by the Stockholder Representative and by Parent.
(vi) The resolution by the Neutral Accountant of the Unresolved Objections shall be final and binding upon all parties hereto and all Stockholders. Parent and the Stockholder Representative agree that the procedure set forth in this Section for resolving disputes with respect to the Closing Statement on shall be the grounds sole and exclusive method for resolving any such disputes; provided that this provision shall not prohibit Parent or the Closing Statement (i) was not prepared Stockholder Representative from instituting litigation to enforce the ruling of the Neutral Accountant in a court of competent jurisdiction in accordance with this Section 1.4 or (ii) contained arithmetic errors, the parties shall be deemed to have accepted and agreed to the Closing Statement. If Buyer so notifies Seller of such an objection to the Closing Statement, the parties shall within 15 days following the date of such notice (the "RESOLUTION PERIOD") attempt to resolve their differences11.9.
(cvii) At the conclusion of the Resolution PeriodThe fees, any amounts remaining in dispute shall, at the election of either party, be submitted to Price Waterhouse (the "NEUTRAL AUDITOR"). The Neutral Auditor shall be engaged within five days after an election by either party to submit its objections to the Neutral Auditor, and each party agrees to execute, if requested by the Neutral Auditor, a reasonable engagement letter. All fees costs and expenses of the Neutral Auditor Accountant under this Section shall be borne equally paid by Seller Parent and Buyer. The the Stockholders in relation to the proportional difference between the Neutral Auditor shall act as an arbitrator to determine, based solely on the written presentations by Seller and Buyer made within 15 days Accountant’s final determination of the Neutral Auditor's engagement Adjustment Amount and the Stockholder Representative’s and Parent’s determinations of the Adjustment Amount, as reflected in the Closing Statement or in the Stockholder Representative’s statement of objections, as applicable (provided, that the payment obligations of the Stockholders shall be satisfied exclusively by a disbursement from the Stockholder Representative Escrow Fund and, solely to the extent the then remaining balance of the Stockholder Representative Escrow Fund is insufficient to fully satisfy such other reasonable period payment obligation, from the Purchase Price Adjustment Escrow Fund and then, if the Purchase Price Adjustment Escrow Fund is exhausted, from the Indemnity Escrow Fund).
(d) If the Adjustment Amount, as finally determined pursuant to this Section, is a negative number, the Stockholder Representative and Parent shall, within three Business Days of time such final determination, jointly instruct the Escrow Agent to which disburse from the parties agreePurchase Price Adjustment Escrow Fund by wire transfer of immediately available funds (i) to Parent, the Adjustment Amount, (ii) to the Paying Agent, for distribution to the Stockholders in accordance with their Pro Rata Shares, the Stockholders’ aggregate Pro Rata Shares of any remaining amount, if any, and (iii) to the Surviving Corporation, for distribution to the holders of Cancelled Options in accordance with their Pro Rata Shares, such holders’ aggregate Pro Rata Shares of such remaining amount, if any. Parent and the Company agree that the Purchase Price Escrow Fund shall not be the sole source of Parent’s right to the Adjustment Amount, and that the Stockholders and the Cancelled Option holders shall be severally, in accordance with their Pro Rata Shares, and not by independent reviewjointly, only those issues still liable for any shortfall. Parent shall recover such shortfall from the Indemnity Escrow Fund, to the extent of the amount then held in dispute. The Neutral Auditor's the Indemnity Escrow Fund, before seeking to recover directly from the Stockholders or Cancelled Option holders.
(e) If the Adjustment Amount, as finally determined pursuant to this Section, is a positive number, within three Business Days after the final determination of the Adjustment Amount, (i) Parent shall be made within 30 days after Seller's and Buyer's written presentations have been made(A) deposit with the Paying Agent, shall be set forth in a written statement delivered for distribution to Seller and Buyer and shall be final, binding, conclusive and nonappealable. The term "FINAL CLOSING STATEMENT" shall mean the definitive Closing Statement agreed to by Seller and Buyer Stockholders in accordance with Section 1.4(btheir Pro Rata Shares, the Stockholders’ aggregate Pro Rata Shares of the Adjustment Amount, and (B) or deposit with the definitive Closing Statement resulting from Surviving Corporation, for distribution to the determination made by the Neutral Auditor holders of Cancelled Options in accordance with their Pro Rata Shares, such holders’ aggregate Pro Rata Share of the Adjustment Amount, and (ii) the Stockholder Representative and Parent shall jointly instruct the Escrow Agent to disburse from the Purchase Price Adjustment Escrow Fund by wire transfer of immediately available funds (A) to the Paying Agent, for distribution to the Stockholders in accordance with their Pro Rata Shares, the Stockholders’ aggregate Pro Rata Shares of the Purchase Price Adjustment Escrow Fund, and (B) to the Surviving Corporation, for distribution to the holders of Cancelled Options in accordance with their Pro Rata Shares, such holders’ aggregate Pro Rata Shares of the Purchase Price Adjustment Escrow Fund.
(f) Each of Parent and the Stockholder Representative shall assist, and shall cause its Affiliates to assist, the other party and its advisors (including its accountants) in the review of the Closing Statement and in connection with the other matters addressed by this Section 1.4(c) Section. Each of Parent and the Stockholder Representative shall afford to the other party and its advisors (in addition including its accountants), reasonable access, upon reasonable notice during normal business hours, to those items theretofore agreed the personnel, properties, books and records of such first party and its Affiliates to by Seller and Buyer)the extent relevant to such matters; provided that such access shall not unreasonably disrupt the normal operations of such first party or any of its Affiliates.
Appears in 1 contract
Samples: Merger Agreement (Neustar Inc)
Purchase Price Adjustment. (a) As soon as practicable but not later than 60 days following Post-Closing Adjustment.
(i) On the date of the earliest to occur of (i) the first anniversary of the Closing Date; or (ii) the Buyer’s acceptance to trade on a major stock exchange, such as “Nasdaq” (the “Measurement Date”), if the per share price of a share of Buyer’s common stock is less than the Buyer Stock Issuance Value of One Dollar ($1.00) per share, the Buyer shall be obligated to issue additional shares of Buyer’s common stock (the “Buyer Stock True-up”) such that the combined value of the Buyer Stock Issuance and the Buyer Stock True-up provides Seller with the number of shares of Buyer’s common stock equal in value to the Purchase Price. If the Buyer Stock True-up is required, the Buyer shall be obligated to issue the Buyer Stock True-up within thirty (30) days of the Measurement Date utilizing the share price at the market close on the Measurement date to calculate the number of additional shares for the Buyer Stock True-up.
(ii) If the Measurement Date is triggered by the first anniversary of the Closing Date as opposed to the Buyer’s acceptance to trade on a major stock exchange, Seller shall have the right within fifteen (15) days of the Measurement Date to hire a mutually agreed upon independent appraiser to ascertain the value of a share of Buyer’s common stock.
(iii) If the per share price of a share of Buyer’s common stock is less than $1.00 per share as of the Measurement Date, Seller shall prepare and deliver have the right to Buyer a working capital statement decline the issuance of the Company as Buyer Stock True-up. If Seller declines the issuance of the close of business on the Closing Date (the "CLOSING STATEMENT") setting forth the current assets minus the current liabilities of the Company (the "WORKING CAPITAL") Buyer Stock True-up on the basis described that the per share value of Buyer’s common stock is less than $1.00 per share, Seller shall have the right to return the Buyer Stock Issuance to Buyer in Annex Bexchange for the Purchased Assets and Assumed Liabilities (the “Clawback”). If Seller elects to exercise the Clawback, accompanied by a report from Arthur Andersen LLP; PROVIDED, HOWEVER, if Buyer and Seller shall mutually work together to coordinate and facilitate the transactions contemplaxxx xx Xxxxxxx 4.11(a) or (b) occur, the Closing Statement will be prepared as if the Com pany did not own the Dermablend Business or the National Cosmetics Business and the Iman Business as return of the Closing DateSeller Equity purchased by Buyer pursuant to this Agreement. In event that Seller exercises its Clawback option, due to the per share value being less than the Buyer Stock Issuance Value, Seller shall retain the business developed up to such event, as compensation for the case may be; PROVIDED FURTHER loss of potential business opportunities that if Buyer retains the Dermablend Business and, pursuant to Section 4.11(b), sells the National Cosmetics Business and the Iman Business, the Dermablend Business will also include the net accounts receivable (other than the Designated Receivables (as defined in Section 4.11)), bank overdraft, accounts payable and accrued expenses related would have otherwise materialized over such period of time prior to the National Cosmetics Business and the Iman Business. Seller and its authorized representatives shall have reasonable access to all relevant books and records and employees exercise of the Company following the Closing Date to the extent required to complete preparation of the Closing Statement, including, without limitation, preparation of any financial reports or schedules needed to complete the Closing Statement. Seller and Buyer shall split equally the cost of preparing and delivering the Closing StatementClawback.
(biv) After receipt of If on the Closing StatementMeasurement Date, the price per share is greater than or equal to the Buyer Stock Issuance Value, Buyer shall have 15 days no obligation to review it. issue the Buyer and its authorized representatives shall have reasonable access to Seller's accountants to the extent required to complete their review of the Closing Statement, including, without limitation, the accountants' work papers used in preparation thereof. Unless Buyer delivers written notice to Seller on or prior to the 15th day after receipt of the Closing Statement specifying in reasonable detail its objections to the Closing Statement on the grounds that the Closing Statement (i) was not prepared in accordance with this Section 1.4 or (ii) contained arithmetic errors, the parties shall be deemed to have accepted and agreed to the Closing Statement. If Buyer so notifies Seller of such an objection to the Closing Statement, the parties shall within 15 days following the date of such notice (the "RESOLUTION PERIOD") attempt to resolve their differencesStock True-up.
(c) At the conclusion of the Resolution Period, any amounts remaining in dispute shall, at the election of either party, be submitted to Price Waterhouse (the "NEUTRAL AUDITOR"). The Neutral Auditor shall be engaged within five days after an election by either party to submit its objections to the Neutral Auditor, and each party agrees to execute, if requested by the Neutral Auditor, a reasonable engagement letter. All fees and expenses of the Neutral Auditor shall be borne equally by Seller and Buyer. The Neutral Auditor shall act as an arbitrator to determine, based solely on the written presentations by Seller and Buyer made within 15 days of the Neutral Auditor's engagement or such other reasonable period of time to which the parties agree, and not by independent review, only those issues still in dispute. The Neutral Auditor's determination shall be made within 30 days after Seller's and Buyer's written presentations have been made, shall be set forth in a written statement delivered to Seller and Buyer and shall be final, binding, conclusive and nonappealable. The term "FINAL CLOSING STATEMENT" shall mean the definitive Closing Statement agreed to by Seller and Buyer in accordance with Section 1.4(b) or the definitive Closing Statement resulting from the determination made by the Neutral Auditor in accordance with this Section 1.4(c) (in addition to those items theretofore agreed to by Seller and Buyer).
Appears in 1 contract
Purchase Price Adjustment. (a) As soon as practicable but Pursuant to Section 5.12, the Company shall deliver the Estimated Closing Statement to Acquirer not later than 60 days following five Business Days prior to the Closing Date, Seller shall prepare and deliver to Buyer a working capital statement of the Company as of the close of business on the Closing Date (the "CLOSING STATEMENT") setting forth the current assets minus the current liabilities of the Company (the "WORKING CAPITAL") on the basis described in Annex B, accompanied by a report from Arthur Andersen LLP; PROVIDED, HOWEVER, if the transactions contemplaxxx xx Xxxxxxx 4.11(a) or (b) occur, the Closing Statement will be prepared as if the Com pany did not own the Dermablend Business or the National Cosmetics Business and the Iman Business as of the Closing Date, as the case may be; PROVIDED FURTHER that if Buyer retains the Dermablend Business and, pursuant to Section 4.11(b), sells the National Cosmetics Business and the Iman Business, the Dermablend Business will also include the net accounts receivable (other than the Designated Receivables (as defined in Section 4.11)), bank overdraft, accounts payable and accrued expenses related to the National Cosmetics Business and the Iman Business. Seller and its authorized representatives shall have reasonable access to all relevant books and records and employees of the Company following the Closing Date to the extent required to complete preparation of the Closing Statement, including, without limitation, preparation of any financial reports or schedules needed to complete the Closing Statement. Seller and Buyer shall split equally the cost of preparing and delivering the Closing Statement.
(b) After receipt Within 60 days after the Closing, Acquirer shall deliver to the Stockholders’ Agent a statement (the “Acquirer Adjustment Statement”) setting forth Acquirer’s calculation of (i) the aggregate amount of the Company Cash, (ii) the aggregate amount of outstanding Company Debt, (iii) the aggregate amount of Unpaid Company Transaction Expenses and (iv) the aggregate amount of Closing StatementWorking Capital, Buyer shall have 15 days to review it. Buyer and its authorized representatives shall have reasonable access to Seller's accountants to the extent required to complete their review in each case as of the Closing Statement, including, without limitation, the accountants' work papers used in preparation thereof. Unless Buyer delivers written notice to Seller on or immediately prior to the 15th day Effective Time (collectively, the “Acquirer Adjustment Calculations”), together with supporting documentation and calculations.
(c) The Stockholders’ Agent may object to the Acquirer Adjustment Calculations set forth in the Acquirer Adjustment Statement by providing written notice of such objection, together with supporting documentation and calculations, to Acquirer within 45 days after receipt Acquirer’s delivery of the Closing Statement specifying in reasonable detail its objections to the Closing Statement on the grounds that the Closing Acquirer Adjustment Statement (i) was the “Notice of Objection”). Any matters not prepared expressly set forth in accordance with this Section 1.4 or (ii) contained arithmetic errors, the parties Notice of Objection shall be deemed to have been accepted by the Stockholders’ Agent on behalf of the Company Securityholders.
(d) If the Stockholders’ Agent timely provides the Notice of Objection, then Acquirer and agreed the Stockholders’ Agent shall confer in good faith for a period of up to 10 Business Days following Acquirer’s timely receipt of the Closing Statement. If Buyer so notifies Seller Notice of such Objection in an objection to the Closing Statement, the parties shall within 15 days following the date of such notice (the "RESOLUTION PERIOD") attempt to resolve their differences.
(c) At any disputed matter set forth in the conclusion Notice of the Resolution Period, any amounts remaining in dispute shall, at the election of either party, be submitted to Price Waterhouse (the "NEUTRAL AUDITOR"). The Neutral Auditor shall be engaged within five days after an election by either party to submit its objections to the Neutral AuditorObjection, and each party agrees to execute, if requested any resolution by the Neutral Auditor, a reasonable engagement letter. All fees and expenses of the Neutral Auditor shall be borne equally by Seller and Buyer. The Neutral Auditor shall act as an arbitrator to determine, based solely on the written presentations by Seller and Buyer made within 15 days of the Neutral Auditor's engagement or such other reasonable period of time to which the parties agree, and not by independent review, only those issues still in dispute. The Neutral Auditor's determination shall be made within 30 days after Seller's and Buyer's written presentations have been made, them shall be set forth in a written statement delivered to Seller agreement executed by each of Acquirer and Buyer the Stockholders’ Agent and shall be finalfinal and binding on the parties hereto and the Company Securityholders.
(e) If, bindingafter the 10 Business Day period set forth in Section 1.6(d), conclusive Acquirer and nonappealablethe Stockholders’ Agent cannot resolve any matter set forth in the Notice of Objection, then Acquirer and the Stockholders’ Agent shall engage PricewaterhouseCoopers LLP or, if such firm is not able or willing to so act, another independent and nationally recognized auditing firm acceptable to both Acquirer and the Stockholders’ Agent (the “Reviewing Accountant”), to act as an expert, to review only the matters in the Notice of Objection that are still disputed by Acquirer and the Stockholders’ Agent and the Acquirer Adjustment Calculations to the extent relevant thereto. The term "FINAL CLOSING STATEMENT" After such review and a review of the Company’s relevant books and records, the Reviewing Accountant shall mean promptly (and in any event within 30 days following its engagement) determine the definitive resolution of such remaining disputed matters, which determination shall be final and binding on the parties hereto and the Company Stockholders, and the Reviewing Accountant shall provide Acquirer and the Stockholders’ Agent with a calculation of, as applicable, (i) the aggregate amount of the Company Cash, (ii) the aggregate amount of outstanding Company Debt, (iii) the aggregate amount of Closing Working Capital and/or (iv) the aggregate amount of Unpaid Company Transaction Expenses, in each case, as of immediately prior to the Effective Time, in accordance with such determination.
(f) If the Adjusted Cash Consideration, calculated based on (i) the aggregate amount of the Company Cash, (ii) the aggregate amount of outstanding Company Debt (iii) the aggregate amount of Unpaid Company Transaction Expenses, and (iv) the Closing Working Capital in each case, as finally determined pursuant to Section 1.6(b), Section 1.6(d) and/or Section 1.6(e), as the case may be (the “Final Adjusted Cash Consideration”), is:
(i) less than the Adjusted Cash Consideration as set forth in the Estimated Closing Statement agreed (such difference, a “Shortfall Amount”), then (A) Acquirer and the Stockholders’ Agent shall jointly instruct the Escrow Agent to by Seller and Buyer release the Shortfall Amount from the Adjustment Escrow Fund to Acquirer; provided, that if the Shortfall Amount shall exceed the amount of the Adjustment Escrow Fund, then Acquirer shall be entitled to recover the absolute value of such amount from the Indemnity Escrow Fund, it being understood that Acquirer shall, in its discretion, be entitled to receive the absolute value of such amount as an offset against payment of any amount of Earnout Payments to be paid pursuant to Section 1.7 in accordance with Section 1.4(b8.9, and by its adoption of this Agreement and approval of the Merger, each Company Stockholder shall be deemed to have consented to such claim by Acquirer and agrees not to object to such claim, and (B) or if there is any amount remaining in the definitive Escrow Fund following the release and distribution of the Shortfall Amount pursuant to clause (1), Acquirer and the Stockholders’ Agent shall jointly instruct the Escrow Agent to release such amount to the Exchange Agent and Surviving Corporation, as applicable, for further distribution to the Company Securityholders upon the terms and subject to the conditions set forth in Section 1.4; or
(ii) greater than the Adjusted Cash Consideration as set forth in the Estimated Closing Statement resulting from (such difference, an “Excess Amount”), then (1) Acquirer shall promptly wire the determination made Excess Amount to the Exchange Agent or Surviving Corporation, as applicable, for further distribution to the Company Securityholders, and (2) Acquirer and the Stockholders’ Agent shall jointly instruct the Escrow Agent to release the full amount of the Adjustment Escrow Fund to the Exchange Agent and Surviving Corporation, as applicable, for further distribution to the Company Securityholders, upon the terms and subject to the conditions set forth in Section 1.4.
(g) The fees, costs and expenses of the Reviewing Accountant shall be allocated between the Stockholders’ Agent (on behalf of the Company Stockholders), on the one hand, and Acquirer, on the other hand, in the same proportion that the aggregate amount of the disputed items submitted to the Reviewing Accountant that is unsuccessfully disputed by each such party (as finally determined by the Neutral Auditor in accordance with Reviewing Accountant) bears to the total amount of such disputed items so submitted.
(h) Any payments made pursuant to this Section 1.4(c) (in addition 1.6 shall be treated as adjustments to those items theretofore agreed the Merger Consideration for all Tax purposes to by Seller and Buyer)the maximum extent permitted under Law.
Appears in 1 contract
Samples: Agreement and Plan of Merger (Castle Biosciences Inc)
Purchase Price Adjustment. (a) As soon as practicable but not later than Within 60 days following the Closing DateClosing, Seller shall prepare and deliver to Buyer a working capital statement of balance sheet relating to the Company Business as of the close of business on the business day immediately preceding the Closing Date (such balance sheet, the "CLOSING STATEMENT") setting forth “Closing Balance Sheet”). The Closing Balance Sheet shall fairly present the current assets minus the current liabilities financial position of the Company (Business and shall be prepared in accordance with the "WORKING CAPITAL") on same accounting methods, policies, practices and procedures with consistent classifications, judgments, and valuation and estimation methodologies as used in the basis described in Annex B, accompanied by a report from Arthur Andersen LLP; PROVIDED, HOWEVER, if preparation of the transactions contemplaxxx xx Xxxxxxx 4.11(a) or (b) occur, Financial Statements. During the preparation of the Closing Statement will be prepared as if the Com pany did not own the Dermablend Business or the National Cosmetics Business Balance Sheet and the Iman Business as period of any dispute within the contemplation of this Section 2.5, Buyer shall (i) provide Seller and Seller’s authorized representatives with reasonable access to the Subject Assets and the Assumed Employees, (ii) provide Seller within ten (10) business days after the Closing Date with normal month-end closing financial information for the period ending on the Closing Date, as and (iii) cooperate fully with Seller and Seller’s authorized representatives, including the case may be; PROVIDED FURTHER that if provision on a timely basis of all information necessary or useful in preparing the Closing Balance Sheet.
(b) Seller shall deliver a copy of the Closing Balance Sheet to Buyer retains promptly after it has been prepared. After receipt of the Dermablend Business andClosing Balance Sheet, pursuant Buyer shall have twenty (20) days to Section 4.11(b)review the Closing Balance Sheet, sells together with the National Cosmetics Business and work papers used in the Iman Business, the Dermablend Business will also include the net accounts receivable (other than the Designated Receivables (as defined in Section 4.11)), bank overdraft, accounts payable and accrued expenses related to the National Cosmetics Business and the Iman Businesspreparation thereof. Seller Buyer and its authorized representatives shall have reasonable access to all relevant books and records and employees of the Company following the Closing Date to the extent required to complete preparation of the Closing Statement, including, without limitation, preparation of any financial reports or schedules needed to complete the Closing Statement. Seller and Buyer shall split equally the cost of preparing and delivering the Closing Statement.
(b) After receipt of the Closing Statement, Buyer shall have 15 days to review it. Buyer and its authorized representatives shall have reasonable access to Seller's accountants to the extent required to complete their review of the Closing StatementBalance Sheet. Buyer may dispute only those items reflected on the Closing Balance Sheet which relate to Net Working Capital and only on the bases that (i) such amounts were not arrived at in accordance with the same accounting methods, includingpolicies, without limitationpractices and procedures with consistent classifications, the accountants' work papers judgments, and valuation and estimation methodologies as used in the preparation thereofof the Financial Statements or (ii) clear error. Buyer shall only be entitled to dispute the Closing Balance Sheet if Buyer’s good faith estimate of the Net Working Capital as of the close of business on the business day immediately preceding the Closing Date differs from the Net Working Capital as shown on the Closing Balance Sheet by an amount in excess of $100,000.00. Unless Buyer delivers written notice to Seller on or prior to the 15th 20th day after Buyer’s receipt of the Closing Statement Balance Sheet specifying in reasonable detail its objections to all disputed items and the Closing Statement on basis therefor (a “Dispute Notice”) and the grounds that the Closing Statement (i) was not prepared amount in accordance with this Section 1.4 or (ii) contained arithmetic errorsdispute is in excess of $100,000.00, the parties Buyer shall be deemed to have accepted and agreed to the Closing StatementBalance Sheet. If Buyer so notifies Seller of such an its objection to the Closing StatementBalance Sheet, the parties shall Buyer and Seller shall, within 15 thirty (30) days following the date of such notice Dispute Notice (the "RESOLUTION PERIOD") “Resolution Period”), attempt to resolve their differencesdifferences and any resolution by them as to any disputed amounts shall be final, binding and conclusive. If following resolution of any disputed amounts there do not remain in dispute amounts the aggregate net effect of which exceeds $100,000.00, then all amounts remaining in dispute shall be deemed to have been resolved in favor of the Closing Balance Sheet delivered by Seller to Buyer.
(c) At If at the conclusion of the Resolution Period, any Period the aggregate net effect of all amounts remaining in dispute shallexceeds $100,000.00, at the election of either party, then all amounts remaining in dispute shall be submitted to Price Waterhouse a firm of nationally recognized independent public accountants (the "NEUTRAL AUDITOR"). The “Neutral Auditor shall be engaged Auditor”) selected by Seller and Buyer within five ten (10) business days after an election by either party the expiration of the Resolution Period. If Seller and Buyer are unable to submit its objections to agree on the Neutral Auditor, then Buyer and Seller shall each have the right to request the American Arbitration Association to appoint the Neutral Auditor, which shall not have had a material relationship with Buyer or Seller within the past two years. Each party agrees to execute, if requested by the Neutral Auditor, a reasonable engagement letter. All fees and expenses of relating to the work, if any, to be performed by the Neutral Auditor shall be borne equally by Seller and Buyer. The Using the same accounting methods, policies, practices and procedures used in the preparation of the Financial Statements, the Neutral Auditor shall act as an arbitrator to determine, based solely on the written presentations by Seller and Buyer made within 15 days of the Neutral Auditor's engagement or such other reasonable period of time to which the parties agreeBuyer, and not by independent review, only those issues still in dispute. In no event may the Neutral Auditor consider any issues, amounts or matters not disputed within the twenty-day period provided in Section 2.5(b) hereof. The Neutral Auditor's ’s determination shall be made within 30 thirty (30) days after Seller's and Buyer's written presentations have been madeof its selection, shall be set forth in a written statement delivered to Seller and Buyer and shall be final, bindingbinding and conclusive.
(d) The Purchase Price shall be (i) increased dollar for dollar to the extent Net Working Capital reflected in the Adjusted Closing Balance Sheet exceeds Target Net Working Capital, conclusive and nonappealableor (ii) decreased dollar for dollar to the extent Net Working Capital reflected in the Adjusted Closing Balance Sheet is less than Target Net Working Capital. The term "FINAL CLOSING STATEMENT" Any adjustments to the Purchase Price made pursuant to this Section 2.5(d) shall mean bear interest from the definitive Closing Statement Date through the date of payment at the publicly announced GECC Rate on the Closing Date. Any adjustments to the Purchase Price made pursuant to this Section 2.5(d) shall be paid by wire transfer in immediately available funds to the account specified by the party to whom such payment is owed within five business days after the Adjusted Closing Balance Sheet is agreed to by Buyer and Seller or any remaining disputed items are ultimately determined by the Neutral Auditor, and Buyer otherwise in accordance with Section 1.4(b) or the definitive Closing Statement resulting from the determination made by the Neutral Auditor in accordance with this Section 1.4(c) (in addition to those items theretofore agreed to by Seller and Buyer)Escrow Agreement.
Appears in 1 contract
Purchase Price Adjustment. (a) As soon as practicable but not later than 60 Within forty-five (45) days following after the Closing Date, Seller Buyer shall prepare and deliver to Buyer Pregis a working capital statement (the “Purchase Price Adjustment Statement”) setting forth Buyer's good faith calculations of (i) Closing Date Net Working Capital, (ii) Cash (the Company “Closing Date Cash”), (iii) Indebtedness as of the close of business on the Closing Date (the "CLOSING STATEMENT"“Closing Date Indebtedness”), and (iv) setting forth the current assets minus the current liabilities of the Company (the "WORKING CAPITAL") on the basis described in Annex B, accompanied by a report from Arthur Andersen LLP; PROVIDED, HOWEVER, if the transactions contemplaxxx xx Xxxxxxx 4.11(a) or (b) occur, the Closing Statement will be prepared as if Consideration Amount, together with such schedules and data reasonably necessary to support the Com pany did not own the Dermablend Business or the National Cosmetics Business and the Iman Business as of the Closing Date, as the case may be; PROVIDED FURTHER that if Buyer retains the Dermablend Business and, pursuant to Section 4.11(b), sells the National Cosmetics Business and the Iman Business, the Dermablend Business will also include the net accounts receivable (other than the Designated Receivables (as defined in Section 4.11)), bank overdraft, accounts payable and accrued expenses related to the National Cosmetics Business and the Iman Business. Seller and its authorized representatives shall have reasonable access to all relevant books and records and employees of the Company following the Closing Date to the extent required to complete preparation of the Closing Statement, including, without limitation, preparation of any financial reports or schedules needed to complete the Closing Statement. Seller and Buyer shall split equally the cost of preparing and delivering the Closing Purchase Price Adjustment Statement.
(b) After receipt Each party shall provide the other party and its representatives with reasonable access to the Business Records and relevant personnel and properties during the preparation of the Purchase Price Adjustment Statement and the resolution of any disputes that may arise under this Section 2.4.
(c) If Pregis disagrees with the determination of the Closing Consideration Amount set forth in the Purchase Price Adjustment Statement, Pregis shall notify Buyer shall have 15 in writing of such disagreement within forty-five (45) days after delivery of the Purchase Price Adjustment Statement to review itPregis (the “Objection Disputes”). Buyer and During the forty-five (45) day period of its authorized representatives review, Pregis shall have reasonable access to Seller's accountants to the extent required to complete their review of the Closing Statementany documents, including, without limitation, the accountants' schedules or work papers used in the preparation thereofof the Purchase Price Adjustment Statement. Unless Buyer delivers The failure of Pregis to deliver written notice of an Objection Dispute to Seller on or prior Buyer within forty-five (45) days after delivery of the Purchase Price Adjustment Statement to Pregis shall be deemed acceptance of the Purchase Price Adjustment Statement and agreement to the 15th day after receipt Purchase Price Adjustment amount by Pregis.
(d) Buyer and Pregis shall negotiate in good faith to resolve any Objection Dispute and any resolution agreed to in writing by Buyer and Pregis shall be final and binding upon the parties. If Buyer and Pregis are unable to resolve all Objection Disputes within twenty (20) days of delivery of written notice of such Objection Disputes by Pregis to Buyer, then the Closing Statement specifying disputed matters shall be referred for final determination to Xxxxx Xxxxxxxx LLP (the “Accounting Arbitrator”) within fifteen (15) days thereafter. If such firm is unable or unwilling to serve, Buyer and Pregis shall jointly select an Accounting Arbitrator from an accounting firm of national standing. If Buyer and Pregis are unable to agree upon an Accounting Arbitrator within such time period, then the Accounting Arbitrator shall be an accounting firm of national standing designated by the American Arbitration Association in reasonable detail its objections to the Closing Statement New York, New York. The Accounting Arbitrator shall only consider those items and amounts set forth on the grounds that Purchase Price Adjustment Statement as to which Buyer and Pregis have disagreed within the Closing Statement (itime periods and on the terms specified in Section 2.4(c) was not prepared and Section 2.4(d) and must resolve all unresolved Objection Disputes in accordance with the terms and provisions of this Agreement. The Accounting Arbitrator shall deliver to Buyer and Pregis, as promptly as practicable and in any event within sixty (60) days after its appointment, a written report setting forth the resolution of any unresolved Objection Disputes determined in accordance with the terms herein. The Accounting Arbitrator shall select as a resolution the position of either Buyer or Pregis for each Objection Dispute (based solely on presentations and supporting material provided by the parties and not pursuant to any independent review) and may not impose an alternative resolution. Such report shall be final and binding upon all of the parties to this Agreement. Upon the agreement of Buyer and Pregis or the decision of the Accounting Arbitrator, or if Pregis fails to deliver written notice of disagreement to Buyer within the forty-five (45) day period provided in Section 1.4 or (ii) contained arithmetic errors2.4(c), the parties Purchase Price Adjustment Statement, as adjusted if necessary to reflect the determination described in this sentence, shall be deemed to have accepted and agreed to be the Purchase Price Adjustment Statement for purposes of calculating the Closing StatementConsideration Amount. If Buyer so notifies Seller of such an objection to the Closing StatementThe fees, the parties shall within 15 days following the date of such notice (the "RESOLUTION PERIOD") attempt to resolve their differences.
(c) At the conclusion expenses and costs of the Resolution Period, any amounts remaining in dispute shall, at the election of either party, be submitted to Price Waterhouse (the "NEUTRAL AUDITOR"). The Neutral Auditor shall be engaged within five days after an election by either party to submit its objections to the Neutral Auditor, and each party agrees to execute, if requested by the Neutral Auditor, a reasonable engagement letter. All fees and expenses of the Neutral Auditor Accounting Arbitrator shall be borne equally by Seller and Buyer. The Neutral Auditor shall act as an arbitrator to determine, based solely on the written presentations by Seller and Buyer made within 15 days of the Neutral Auditor's engagement or such other reasonable period of time to which the parties agree, and not by independent review, only those issues still in dispute. The Neutral Auditor's determination shall be made within 30 days after Seller's and Buyer's written presentations have been made, shall be set forth in a written statement delivered to Seller and Buyer and Pregis.
(e) In the event that the Closing Consideration Amount as finally determined pursuant to Section 2.4(d) is less than the Estimating Closing Consideration Amount, Buyer shall be final, binding, conclusive and nonappealable. The term "FINAL CLOSING STATEMENT" shall mean pay Pregis an amount equal to the definitive Closing Statement agreed to by Seller and Buyer difference in accordance with Section 1.4(b2.4(f) or hereof. In the definitive event that the Closing Statement resulting from Consideration Amount as finally determined pursuant to Section 2.4(d) is greater than the determination made by Estimating Closing Consideration Amount, Pregis shall pay Buyer an amount equal to the Neutral Auditor difference in accordance with this Section 1.4(c2.4(f) hereof.
(in addition f) Any Purchase Price Adjustment shall be paid by Buyer or Pregis, as applicable, by wire transfer of immediately available funds to those items theretofore agreed to an account designated by Seller and Buyer)the party receiving such payment within five (5) Business Days after the final determination of the Purchase Price Adjustment.
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Purchase Price Adjustment. (a) As soon as practicable but not later than 60 The Purchase Price has been determined on the basis that the Tangible Net Assets will have a value on July 1, 2008 of $200,000 (such value being the “Estimated TNA”)to be calculated consistent with the methodology set out in Schedule N.
(b) Within 30 days following after the Closing Date, Seller the Vendor shall prepare and deliver to Buyer the Purchaser a working capital statement indicating the value of the Company as Tangible Net Assets of the close Purchased Business as at July 1, 2008 (such value being the “Closing TNA” and such statement being the “Closing Date Balance Sheet”). The Vendor shall provide along with the Closing Date Balance Sheet any required schedules and supporting documentation required for the determination of business the value of the Tangible Net Assets as at July 1, 2008. The Purchaser shall work cooperatively with the Vendor during the thirty (30) day period following the delivery of the Closing Date Balance Sheet to verify the amounts on the Closing Date (Balance Sheet. If the "CLOSING STATEMENT") setting forth the current assets minus the current liabilities of the Company (the "WORKING CAPITAL") on the basis described in Annex B, accompanied by a report from Arthur Andersen LLP; PROVIDED, HOWEVER, if the transactions contemplaxxx xx Xxxxxxx 4.11(a) or (b) occur, the Closing Statement will be prepared as if the Com pany did not own the Dermablend Business Vendor or the National Cosmetics Business and the Iman Business as Purchaser have not been able to agree upon a resolution of any related dispute within sixty (60) days of receipt by Purchaser of the Closing DateDate Balance Sheet, as then any such dispute shall be resolved by an independent accounting firm (the case may be; PROVIDED FURTHER that if Buyer retains “Reviewing Accountant”) selected jointly by the Dermablend Business and, pursuant to Section 4.11(b), sells the National Cosmetics Business Vendor and the Iman BusinessPurchaser. If these parties cannot agree on a Reviewing Accountant within ten (10) days, either of them may apply to a court to have one appointed by the Dermablend Business court. The Reviewing Accountant shall be instructed to resolve any matters in dispute as promptly as practicable, but in no event more than thirty (30) days after submission. The fees of the Reviewing Accountant will also include be borne equally by the net accounts receivable (other than the Designated Receivables (as defined in Section 4.11)), bank overdraft, accounts payable and accrued expenses related to the National Cosmetics Business Vendor and the Iman BusinessPurchaser. Seller and its authorized representatives shall have reasonable access to all relevant books and records and employees The resolution of the Company following dispute by the Closing Date to the extent required to complete preparation of the Closing Statement, including, without limitation, preparation of any financial reports or schedules needed to complete the Closing Statement. Seller Reviewing Accountant shall be final and Buyer shall split equally the cost of preparing and delivering the Closing Statement.
(b) After receipt of the Closing Statement, Buyer shall have 15 days to review it. Buyer and its authorized representatives shall have reasonable access to Seller's accountants to the extent required to complete their review of the Closing Statement, including, without limitation, the accountants' work papers used in preparation thereof. Unless Buyer delivers written notice to Seller on or prior to the 15th day after receipt of the Closing Statement specifying in reasonable detail its objections to the Closing Statement binding on the grounds that the Closing Statement (i) was not prepared in accordance with this Section 1.4 or (ii) contained arithmetic errors, the parties shall be deemed to have accepted and agreed to the Closing Statement. If Buyer so notifies Seller of such an objection to the Closing Statement, the parties shall within 15 days following the date of such notice (the "RESOLUTION PERIOD") attempt to resolve their differenceshereto.
(c) At If the conclusion Closing Date Balance Sheet shows the Closing TNA to be equal to or greater than the Estimated TNA (any excess over $1 being the “Excess”), then the Purchaser will pay the Vendor the Holdback together with the amount of the Resolution PeriodExcess on the Holdback Release Date and the Purchase Price will be increased by the amount of the Excess.
(d) If the Closing Date Balance Sheet shows the Closing TNA is less than the Estimated TNA (the difference, any amounts remaining in dispute expressed as a positive number, being the “Shortfall”), the Purchaser will, unless the Shortfall is equal to or greater than the Estimated TNA, pay to the Vendor the Holdback less the amount of the Shortfall, on the Holdback Release Date, and the Purchase Price will be reduced by the Shortfall.
(e) If the Shortfall is equal to or greater than the Estimated TNA then the Purchaser shall retain the Holdback and the Vendor shall, at on the election of either partyHoldback Release Date, be submitted to Price Waterhouse (the "NEUTRAL AUDITOR"). The Neutral Auditor shall be engaged within five days after an election by either party to submit its objections pay to the Neutral AuditorPurchaser the full amount of the Shortfall less the Holdback, and each party agrees to execute, if requested the Purchase Price will be reduced by the Neutral Auditor, a reasonable engagement letter. All fees and expenses amount of the Neutral Auditor shall be borne equally by Seller Holdback and Buyer. The Neutral Auditor shall act as an arbitrator to determinethe Shortfall.
(f) Notwithstanding Sections 2.7(c), based solely on the written presentations by Seller (d) and Buyer made within 15 days (e), Purchaser may withhold from payment of the Neutral Auditor's engagement Holdback an amount in respect of a Claim under the representations and warranties of the Vendor or any of the indemnities contained in this Agreement provided written notice of such other reasonable period of time Claim has been given to which the parties agree, and not by independent review, only those issues still in dispute. The Neutral Auditor's determination shall be made within 30 days after Seller's and Buyer's written presentations have been made, shall be set forth in a written statement delivered to Seller and Buyer and shall be final, binding, conclusive and nonappealable. The term "FINAL CLOSING STATEMENT" shall mean the definitive Closing Statement agreed to by Seller and Buyer Vendor in accordance with Section 1.4(b) or 4.3 of this Agreement prior to the definitive Closing Statement resulting from the determination made by the Neutral Auditor in accordance with this Section 1.4(c) (in addition to those items theretofore agreed to by Seller and Buyer)Holdback Release Date.
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Purchase Price Adjustment. (a) As soon as practicable but not later than 60 Within ninety (90) days following after the Closing Date, Seller Buyer shall prepare and deliver to Buyer the Shareholders’ Representative a working capital statement of the Company as of the close of business on the Closing Date (the "CLOSING STATEMENT"“Purchase Price Adjustment Statement”) setting forth the current assets minus the current liabilities its determination of the (i) Closing Date Net Working Capital, (ii) Closing Cash, (iii) Closing Indebtedness and (iv) Company (the "WORKING CAPITAL") on the basis described in Annex BTransaction Expenses, accompanied by a report from Arthur Andersen LLP; PROVIDED, HOWEVER, if the transactions contemplaxxx xx Xxxxxxx 4.11(a) or together with such schedules and data as may be appropriate to support such calculations.
(b) occurIf the Shareholders’ Representative disagrees with the determination of one or more items set forth on the Purchase Price Adjustment Statement, the Closing Shareholders’ Representative shall notify Buyer in writing of such disagreement within twenty (20) Business Days after delivery of the Purchase Price Adjustment Statement to the Shareholders’ Representative, which notice shall describe the nature of any such disagreement in reasonable detail, identify the specific items involved and the dollar amount of each such disagreement and provide reasonable supporting documentation for each such disagreement (the “Objection Disputes”). After the end of such twenty (20) Business Day period, the Shareholders’ Representative may not introduce additional Objection Disputes or increase the amount of any Objection Dispute, and any item not so identified shall be deemed to be agreed to by the Shareholders’ Representative and will be prepared as if final and binding upon the Com pany did not own the Dermablend Business or the National Cosmetics Business parties to this Agreement and the Iman holders of Options. During the twenty (20) Business as Day period of the Closing Date, as the case may be; PROVIDED FURTHER that if Buyer retains the Dermablend Business and, pursuant to Section 4.11(b), sells the National Cosmetics Business and the Iman Businessits review, the Dermablend Business will also include the net accounts receivable (other than the Designated Receivables (as defined in Section 4.11)), bank overdraft, accounts payable and accrued expenses related to the National Cosmetics Business and the Iman Business. Seller and its authorized representatives Shareholders’ Representative shall have reasonable access to all relevant books any Business Record used in the preparation of the Purchase Price Adjustment Statement and records and employees internal personnel of the Company following who were involved in the Closing Date to the extent required to complete preparation of the Closing Purchase Price Adjustment Statement; provided that the Shareholders’ Representative shall not have access to any documents or information that are subject to the attorney-client privilege, includingattorney work product doctrine, without limitation, preparation of or any financial reports other applicable privilege; provided further that the Company shall use commercially reasonable efforts to provide access to any such documents or schedules needed information in such fashion that would not reasonably be expected to complete the Closing Statementwaive any applicable privilege. Seller and Buyer shall split equally the cost of preparing and delivering the Closing Statement.
(b) After receipt The failure of the Closing Statement, Shareholders’ Representative to deliver written notice of an Objection Dispute to Buyer shall have 15 days to review it. Buyer and its authorized representatives shall have reasonable access to Seller's accountants within twenty (20) Business Days after delivery of the Purchase Price Adjustment Statement to the extent required to complete their review of the Closing Statement, including, without limitation, the accountants' work papers used in preparation thereof. Unless Buyer delivers written notice to Seller on or prior to the 15th day after receipt of the Closing Statement specifying in reasonable detail its objections to the Closing Statement on the grounds that the Closing Statement (i) was not prepared in accordance with this Section 1.4 or (ii) contained arithmetic errors, the parties Shareholders’ Representative shall be deemed to have accepted acceptance of the Purchase Price Adjustment Statement and agreed agreement to the Closing Statement. If Buyer so notifies Seller of such an objection to Purchase Price Adjustment amount by the Closing Statement, the parties shall within 15 days following the date of such notice (the "RESOLUTION PERIOD") attempt to resolve their differencesEquityholders.
(c) At Subject to Section 2.5(c), Buyer and the conclusion Shareholders’ Representative shall negotiate in good faith to resolve any Objection Dispute and any resolution agreed to in writing by Buyer and the Shareholders’ Representative shall be final and binding upon the parties. If Buyer and the Shareholders’ Representative are unable to resolve all Objection Disputes within twenty (20) Business Days of delivery of written notice of such Objection Disputes by the Shareholders’ Representative to Buyer, then the disputed matters shall be referred for final determination to KPMG LLP (the “Accounting Arbitrator”) within fifteen (15) days thereafter. If such firm is unable to serve, Buyer and the Shareholders’ Representative shall jointly select an Accounting Arbitrator from an accounting firm of national standing that is not the independent auditor of (and does not otherwise serve as a Consultant to) either Buyer or any Affiliate of Buyer, the Company or any of the Resolution PeriodEquityholders (or their respective Affiliates). If Buyer and the Shareholders’ Representative are unable to agree upon an Accounting Arbitrator within such time period, then the Accounting Arbitrator shall be an accounting firm of national standing designated by the American Arbitration Association in New York, New York; provided, that such firm shall not be the independent auditor of (or otherwise serve as a Consultant to) either Buyer or any amounts remaining in dispute shallAffiliate of Buyer, at the election Company or any of either party, be submitted to Price Waterhouse the Equityholders (the "NEUTRAL AUDITOR"or their respective Affiliates). The Neutral Auditor Accounting Arbitrator shall only consider those items and amounts set forth on the Purchase Price Adjustment Statement as to which Buyer and the Shareholders’ Representative have disagreed within the time periods and amounts and on the terms specified in Section 2.5(c) and Section 2.5(d) and must resolve all unresolved Objection Disputes in accordance with the terms and provisions of this Agreement. The Accounting Arbitrator shall deliver to Buyer and the Shareholders’ Representative, as promptly as practicable and in any event within sixty (60) days after its appointment, a written report setting forth the resolution of any unresolved Objection Disputes determined in accordance with the terms herein, and such written report shall be engaged final, binding and non-appealable absent mathematical error by the Accounting Arbitrator or fraud. The Accounting Arbitrator shall select as a resolution the position of either Buyer or the Shareholders’ Representative or a compromise between such two positions for each Objection Dispute (based solely on presentations and supporting material provided by the parties and not pursuant to any independent review) and may not impose an alternative resolution outside of such range. Such report shall be final and binding upon all of the parties to this Agreement and the Equityholders. Upon the agreement of Buyer and the Shareholders’ Representative or the decision of the Accounting Arbitrator, or if the Shareholders’ Representative fails to deliver written notice of disagreement to Buyer within five days after an election by either party to submit its objections the twenty (20) day period provided in Section 2.5(c), the Purchase Price Adjustment Statement, as adjusted if necessary pursuant to the Neutral Auditorterms of this Agreement, shall be deemed to be the Purchase Price Adjustment Statement for purposes of calculating the Purchase Price Adjustment pursuant to this Section 2.5. The fees, expenses and each party agrees to execute, if requested by the Neutral Auditor, a reasonable engagement letter. All fees and expenses costs of the Neutral Auditor Accounting Arbitrator shall be borne equally by Seller Buyer and Buyerthe Shareholders.
(d) In the event that (A) the sum of (i) Closing Date Net Working Capital, plus (ii) Closing Cash, less (iii) Closing Indebtedness, less (iv) Company Transaction Expenses (such sum, as finally determined pursuant to this Section 2.5, the “Final Closing Calculation Amount”) is greater than (B) the sum of (i) the Estimated Closing Date Net Working Capital, plus (ii) Estimated Closing Cash, less (iii) Estimated Closing Indebtedness, less (iv) Estimated Company Transaction Expenses (such sum, the “Estimated Calculation Amount”), Buyer shall pay to the Equityholders an aggregate amount equal to the difference between the Final Closing Calculation Amount and the Estimated Calculation Amount. The Neutral Auditor shall act as an arbitrator to determine, based solely on the written presentations by Seller and Buyer made within 15 days of the Neutral Auditor's engagement or such other reasonable period of time to which the parties agree, and not by independent review, only those issues still in dispute. The Neutral Auditor's determination Such payment shall be made within 30 days after Seller's and Buyer's written presentations have been made, shall be allocated among the Equityholders as set forth in a written statement delivered the Allocation Schedule and made by Buyer by wire transfer of immediately available funds to Seller the accounts set forth in the Allocation Schedule within five (5) Business Days after the final determination of the Purchase Price Adjustment; provided, that, consistent with Section 2.1(b), amounts payable in respect of Vested Options will be paid to Altisource Solutions, Inc. in its capacity as the processor of the Company’s payroll, for the benefit of Vested Option holders and Buyer will be paid, without interest, by Altisource Solutions, Inc. (less any amounts deducted and shall be final, binding, conclusive and nonappealable. The term "FINAL CLOSING STATEMENT" shall mean the definitive Closing Statement agreed to by Seller and Buyer withheld in accordance with Section 1.4(b2.6(b)) or to the definitive Closing Statement resulting from the determination made by the Neutral Auditor Vested Option holders, in accordance with the Company’s payroll practices, no later than the first standard payroll date that is not less than five (5) Business Days after the date of the final determination of the Purchase Price Adjustment.
(e) In the event that the Final Closing Calculation Amount is less than the Estimated Calculation Amount, Buyer and the Shareholders’ Representative shall, within five (5) Business Days after determination of the Purchase Price Adjustment, deliver a joint letter instructing the Escrow Agent to disburse from the Adjustment Escrow Account by wire transfer of immediately available funds, (i) to Buyer an amount equal to the difference between the Estimated Closing Consideration Amount and the Final Closing Calculation Amount and (ii) to the Equityholders the amount, if any, that remains in the Adjustment Escrow Account after giving effect to the Purchase Price Adjustment pursuant to this Section 1.4(c2.5; provided, that, consistent with Section 2.1(b), amounts payable in respect of Vested Options will be paid to Altisource Solutions, Inc. in its capacity as the processor of the Company’s payroll, for the benefit of Vested Option holders and will be paid, without interest, by Altisource Solutions, Inc. (less any amounts deducted and withheld in accordance with Section 2.6(b)) to the Vested Option holders, in accordance with the Company’s payroll practices, no later than the first standard payroll date that is not less than five (5) Business Days after the date of the final determination of the Purchase Price Adjustment. If the Adjustment Escrow Account has been entirely used to pay amounts owed to Buyer pursuant to this Section 2.5, then any remaining amounts owed to Buyer pursuant to this Section 2.5 shall be paid to Buyer by the Equityholders directly; provided that at the election of Buyer the Shareholders’ Representative shall direct the Escrow Agent to pay any such amounts from the Indemnity Escrow Account and, in addition such event, the Equityholders shall fund such amounts to those items theretofore agreed the Indemnity Escrow Account to by Seller and Buyer)replenish the Indemnity Escrow Account. Any amounts payable to the Equityholders pursuant to this Section 2.5(e) shall be allocated to the Equityholders according to the Allocation Schedule.
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Samples: Stock Purchase Agreement (Altisource Portfolio Solutions S.A.)
Purchase Price Adjustment. (a) As soon as practicable but Sellers shall prepare in good faith and deliver to Buyer not later less than 60 days following fifteen (15) Business Days prior to the Closing Date Sellers’ estimate of the Adjusted Purchase Price (the “Estimated Purchase Price”). The Estimated Purchase Price shall be prepared in accordance with this Agreement. If Buyer has any questions or disagreements regarding Sellers’ calculation of the Estimated Purchase Price, Buyer shall contact Sellers at least two (2) Business Days prior to the Closing Date, Seller and in such case Sellers and Buyer shall in good faith attempt to resolve any disagreements. If Buyer and Sellers agree on changes to any Estimated Purchase Price based on such discussions, then the Estimated Purchase Price shall be paid at Closing based on such changes. If Buyer and Sellers do not agree on changes to the Estimated Purchase Price, then the Estimated Purchase Price shall be paid at the Closing based on the amounts set forth in Sellers’ calculation of the Estimated Purchase Price. In either such case, appropriate adjustments to the Purchase Price shall be made after the Closing pursuant to Section 3.4(b) and Section 3.4(c).
(b) No later than sixty (60) days after the Closing Date (or such later date as mutually agreed by Buyer and Sellers), Sellers shall prepare and deliver to Buyer a working capital statement Sellers’ calculation of the Company as of the close of business on the Closing Date (the "CLOSING STATEMENT") setting forth the current assets minus the current liabilities of the Company (the "WORKING CAPITAL") on the basis described in Annex B, accompanied by a report from Arthur Andersen LLP; PROVIDED, HOWEVER, if the transactions contemplaxxx xx Xxxxxxx 4.11(a) or (b) occur, the Closing Statement will be prepared as if the Com pany did not own the Dermablend Business or the National Cosmetics Business and the Iman Business as of the Closing Date, as the case may be; PROVIDED FURTHER that if Buyer retains the Dermablend Business and, Adjusted Purchase Price pursuant to Section 4.11(b3.3 (the “Final Purchase Price”), sells together with a worksheet showing the National Cosmetics Business difference, if any, between the Estimated Purchase Price and the Iman Business, the Dermablend Business will also include the net accounts receivable (other than the Designated Receivables (as defined in Section 4.11)), bank overdraft, accounts payable and accrued expenses related to the National Cosmetics Business and the Iman BusinessFinal Purchase Price. Seller and its authorized representatives The Final Purchase Price shall have reasonable access to all relevant books and records and employees of the Company following the Closing Date to the extent required to complete preparation of the Closing Statement, including, without limitation, preparation of any financial reports or schedules needed to complete the Closing Statement. Seller and Buyer shall split equally the cost of preparing and delivering the Closing Statement.
(b) After receipt of the Closing Statement, Buyer shall have 15 days to review it. Buyer and its authorized representatives shall have reasonable access to Seller's accountants to the extent required to complete their review of the Closing Statement, including, without limitation, the accountants' work papers used in preparation thereof. Unless Buyer delivers written notice to Seller on or prior to the 15th day after receipt of the Closing Statement specifying in reasonable detail its objections to the Closing Statement on the grounds that the Closing Statement (i) was not be prepared in accordance with this Section 1.4 Agreement. Buyer and Sellers shall promptly provide to each other all documents reasonably requested by the other to verify any of the items set forth in the Final Purchase Price calculations. Buyer shall have the right for thirty (30) days following receipt of the Final Purchase Price to object to the proposed calculation of the Final Purchase Price (other than with respect to any Title Defects or (ii) contained arithmetic errorsTitle Benefits asserted but unresolved as of the Closing, the parties which shall be determined exclusively in accordance with Article VI). Any objection made by Buyer shall be made in writing and shall set forth such objection in reasonable detail. Buyer shall be deemed to have accepted waived any rights to object under this Section 3.4(b) unless Buyer furnishes its written objections to Sellers within such thirty (30) day period. If Buyer delivers an objection within such thirty (30) day period, then Buyer and Sellers shall endeavor in good faith to resolve the objections. If, at the end of a fifteen (15) day period from the date of delivery of any objection by Buyer or such longer period as may be mutually agreed by Buyer and Sellers, there are any objections that remain in dispute, then the remaining objections in dispute shall be submitted for resolution to the accounting firm of KPMG LLP or such other accounting firm as the Parties may mutually select (the “Closing Item Arbitrator”). Each of Sellers and Buyer agree not to engage the Closing Item Arbitrator to perform any services other than as Closing Item Arbitrator pursuant hereto until the Final Purchase Price has been finally determined pursuant to this Section 3.4(b). Each of Sellers and Buyer agrees, if reasonably requested by the Closing Item Arbitrator, to execute such engagement letter and provide such indemnity and execute such other agreements as the Closing Item Arbitrator may require as a condition to such engagement. The Closing Item Arbitrator shall determine the Final Purchase Price as promptly as reasonably practicable after the objections that remain in dispute are submitted to it, but in any event within thirty (30) days after such objections that remain in dispute are submitted to it. If any objections are submitted to the Closing Statement. If Item Arbitrator for resolution, (i) each of Buyer so notifies Seller of such an objection and Sellers shall furnish to the Closing Statement, Item Arbitrator such work papers and other documents and information relating to such objections as the parties shall within 15 days following Closing Item Arbitrator may request and are reasonably available to that Party (or its independent public accountants or other representatives) and will be afforded the date of such notice (opportunity to present to the "RESOLUTION PERIOD") attempt Closing Item Arbitrator any material relating to resolve their differences.
(c) At the conclusion determination of the Resolution Period, any amounts remaining matters in dispute shalland to discuss such determination with the Closing Item Arbitrator, at (ii) the election Closing Item Arbitrator shall not assign a value to any item in dispute that is greater than the greatest value for such item claimed by Sellers, on the one hand, or Buyer, on the other hand, or less than the smallest value for such item claimed by Sellers, on the one hand, or Buyer, on the other hand, and (iii) the determination by the Closing Item Arbitrator of either partythe Final Purchase Price, be submitted as set forth in a written notice delivered to Price Waterhouse (both Buyer and Sellers by the "NEUTRAL AUDITOR"). The Neutral Auditor Closing Item Arbitrator, shall be engaged within five days after made in accordance with this Agreement and shall be binding and conclusive on the Parties and, absent manifest error, shall constitute an election arbitral award that is final, binding and unappealable and upon which a judgment may be entered by either party to submit its objections to a court having jurisdiction thereof. Buyer, on the Neutral Auditorone hand, and Sellers, on the other hand, shall each party agrees to executebear their own legal fees and other costs in connection with any such objection; provided, if requested by that the Neutral Auditor, a reasonable engagement letter. All fees and expenses of the Neutral Auditor shall Closing Item Arbitrator will be borne equally paid by Seller and apportioned between Buyer, on the one hand, and Sellers, on the other hand, based on the aggregate dollar amount of the dollar value difference in aggregate between Sellers’ and Buyer. The Neutral Auditor shall act ’s proposed Purchase Price adjustments and inversely related to the relative recovery as an arbitrator to determinedetermined by the Closing Item Arbitrator of Buyer and Sellers, based solely on respectively (for example, if the written presentations aggregate dollar amount of the amount in dispute is $1,000,000 and the relative recovery Buyer and Sellers as determined by Seller the Closing Item Arbitrator is $900,000 and $100,000, respectively, then Sellers will be apportioned 90% of the fees and expenses and Buyer made within 15 days will be apportioned 10% of the Neutral Auditor's engagement or such other reasonable period of time to which the parties agreefees and expenses). Sellers and Buyer shall promptly, and not in any event within five (5) Business Days after the final determination of the matter submitted to the Closing Item Arbitrator for resolution, pay to the Closing Item Arbitrator the amount of fees and expenses of the Closing Item Arbitrator payable by independent review, only those issues still in dispute. The Neutral Auditor's determination shall be made within 30 days after Seller's and Buyer's written presentations have been made, shall be set forth in a written statement delivered to Seller Sellers and Buyer and shall be final, binding, conclusive and nonappealable. The term "FINAL CLOSING STATEMENT" shall mean pursuant to the definitive Closing Statement agreed to by Seller and Buyer in accordance with Section 1.4(b) or the definitive Closing Statement resulting from the determination made by the Neutral Auditor in accordance with this Section 1.4(c) (in addition to those items theretofore agreed to by Seller and Buyer)preceding sentence.
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Purchase Price Adjustment. (a) As soon as practicable but not later than 60 Within 30 calendar days following after the Closing Date, Seller the Sellers shall prepare and deliver to the Buyer a working capital statement reflecting the Final Cash Payment and the Adjusted Principal Amount, the sum of which shall equal the Company as Cash Purchase Price, and the calculation thereof (the "Final Statement"), prepared on a basis consistent with the Closing Balance Sheet; provided, however, that for purposes of determining the close of business Cash Purchase Price and the calculation thereof, (i) "Accrued Liabilities" on the Closing Date Balance Sheet and the Final Balance Sheet shall not include accrued general liabilities and auto insurance, accrued warranty expense with respect to the Warranty Obligations, payroll deduction, accrued sick pay, accrued bonuses, accrued audit fees, Taxes and accrued Taxes, (ii) the amount of the allowance for doubtful accounts deducted from accounts receivable set forth on the Final Balance Sheet shall be determined on a basis consistent with the Closing Balance Sheet, (iii) the amount of the allowance for obsolete, damaged, missing, excess or slow-moving inventories deducted from inventories set forth on the Final Balance Sheet shall be $415,000, (iv) the amount of the accrual for Company-provided employee medical and dental expenses, to the extent such expenses are within the Company's deductible, set forth on the Final Balance Sheet shall be $35,000, (v) the amount of the accrual for expressed or implied warranty obligations, including, when applicable, handling, transportation and installation costs, set forth on the Final Balance Sheet shall be $43,740 and (vi) the amount of the accrual for penalties related to failure to meet committed delivery dates for crane units set forth on the Final Balance Sheet shall be $397,350. The Buyer shall provide the Sellers reasonable access to the books and records pertaining to the 4 Business to enable them to prepare the Final Statement. The Sellers shall provide the Buyer access to copies of all work papers and other relevant documents to verify the entries contained in the Final Statement. The Buyer shall have a period of 30 calendar days after delivery to them of the Final Statement (the "CLOSING STATEMENTResponse Period") setting forth to review it and make any objections the current assets minus the current liabilities of the Company (the "WORKING CAPITAL") on the basis described Buyer may have in Annex B, accompanied by a report from Arthur Andersen LLP; PROVIDED, HOWEVER, if the transactions contemplaxxx xx Xxxxxxx 4.11(a) or (b) occur, the Closing Statement will be prepared as if the Com pany did not own the Dermablend Business or the National Cosmetics Business and the Iman Business as of the Closing Date, as the case may be; PROVIDED FURTHER that if Buyer retains the Dermablend Business and, pursuant to Section 4.11(b), sells the National Cosmetics Business and the Iman Business, the Dermablend Business will also include the net accounts receivable (other than the Designated Receivables (as defined in Section 4.11)), bank overdraft, accounts payable and accrued expenses related writing to the National Cosmetics Business and the Iman BusinessSellers. Seller and its authorized representatives shall have reasonable access to all relevant books and records and employees of the Company following the Closing Date to the extent required to complete preparation of the Closing Statement, including, without limitation, preparation of any financial reports or schedules needed to complete the Closing Statement. Seller and Buyer shall split equally the cost of preparing and delivering the Closing Statement.
(b) After receipt of the Closing Statement, Buyer shall have 15 days to review it. Buyer and its authorized representatives shall have reasonable access to Seller's accountants to the extent required to complete their review of the Closing Statement, including, without limitation, the accountants' work papers used in preparation thereof. Unless Buyer delivers If written notice to Seller on or prior to the 15th day after receipt of the Closing Statement specifying in reasonable detail its objections to the Closing Final Statement on are delivered to the grounds that Sellers within the Closing Statement (i) was not prepared Response Period, then the Buyer and the Sellers shall attempt to resolve the matter or matters in accordance with this Section 1.4 or (ii) contained arithmetic errorsdispute. If no written objections are made within the Response Period, the parties Final Cash Payment and the Adjusted Principal Amount shall be deemed to have accepted and agreed compared to the Closing Statement. If Buyer so notifies Seller of such an objection to Cash Payment and the Closing Statement, the parties shall within 15 days following the date of such notice (the "RESOLUTION PERIOD") attempt to resolve their differences.
(c) At the conclusion of the Resolution Period, any amounts remaining in dispute shall, at the election of either party, be submitted to Price Waterhouse (the "NEUTRAL AUDITOR"). The Neutral Auditor shall be engaged within five days after an election by either party to submit its objections to the Neutral Auditor, Non-Adjusted Principal Amount and each party agrees to execute, if requested by the Neutral Auditor, a reasonable engagement letter. All fees and expenses of the Neutral Auditor shall be borne equally by Seller and Buyer. The Neutral Auditor shall act as an arbitrator to determine, based solely on the written presentations by Seller and Buyer made within 15 days of the Neutral Auditor's engagement or such other reasonable period of time to which the parties agree, and not by independent review, only those issues still in dispute. The Neutral Auditor's determination shall adjustments will be made within 30 days after Seller's according to Section 1.5(e) and Buyer's written presentations have been made, shall be set forth in a written statement delivered to Seller and Buyer and shall be final, binding, conclusive and nonappealable. The term "FINAL CLOSING STATEMENT" shall mean the definitive Closing Statement agreed to by Seller and Buyer in accordance with Section 1.4(b1.5(f) or the definitive Closing Statement resulting from the determination made by the Neutral Auditor in accordance with this Section 1.4(c) (in addition to those items theretofore agreed to by Seller and Buyer)hereof.
Appears in 1 contract
Samples: Asset Purchase Agreement (Offshore Tool & Energy Corp)
Purchase Price Adjustment. (a) No later than December 30, 2012, Seller shall deliver to Buyer a schedule prepared in accordance with GAAP consistent with past practices used in preparing the latest balance sheet set forth in the Unaudited Financial Statements presenting Seller’s good faith estimate of the Net Working Capital as of December 31, 2012 (the “Estimated Net Working Capital Statement”). For purposes of this Section 3.4, “Net Working Capital” is calculated as those components of Seller’s current assets and current liabilities set forth in Schedule 3.4 as of December 31, 2012, in each case as included in the Purchased Assets and Assumed Liabilities, provided that inventory shall be calculated as December 29, 2012 as described in Section 3.4(d). As soon as practicable but not later than in any event within 60 days following after the Closing Date, Seller Buyer shall prepare and deliver to Buyer a working capital Seller an unaudited statement of the Company Net Working Capital dated as of December 31, 2012 (the close of business on the “Proposed Closing Date Net Working Capital Statement”), which Proposed Closing Date Net Working Capital Statement shall (the "CLOSING STATEMENT"i) have been prepared by Buyer in accordance with GAAP, and setting forth the current assets minus the current liabilities Buyer’s calculation of the Company (actual Net Working Capital as of December 31, 2012. Seller and its representatives shall have the "WORKING CAPITAL") on right, during normal business hours and upon reasonable request, to review all work papers and procedures used to prepare the basis described Proposed Closing Date Net Working Capital Statement and to have reasonable access to Buyer’s financial employees and any accountants involved in Annex B, accompanied by a report from Arthur Andersen LLP; PROVIDED, HOWEVER, if the transactions contemplaxxx xx Xxxxxxx 4.11(a) or determination of the Proposed Closing Date Net Working Capital Statement and shall have the right to perform reasonable procedures necessary to confirm the accuracy thereof.
(b) occur, the The Proposed Closing Date Net Working Capital Statement will be prepared as if the Com pany did not own the Dermablend Business or the National Cosmetics Business shall become final and the Iman Business as binding on Seller and Buyer unless Seller notifies Buyer in writing within 15 days after delivery of the Proposed Closing DateDate Net Working Capital Statement, as the case may be; PROVIDED FURTHER that if Buyer retains , and specifies therein the Dermablend Business and, pursuant to Section 4.11(b), sells basis and reason for the National Cosmetics Business dispute and the Iman Businessamount which is in dispute (the “Disputed Matters”). During a period of 20 days following the delivery of such notice, Buyer and Seller shall attempt to resolve any Disputed Matters. If, at the end of such 10 day period, Buyer and Seller shall have failed to reach agreement with respect to the Disputed Matters, the Dermablend Business will also include unresolved Disputed Matters shall be referred to Xxxxx Xxxxxxx or if such firm declines to act in such capacity, any such other firm of independent nationally recognized accountants chosen and mutually accepted by both parties (the net accounts receivable “Independent Accountants”) for resolution. Buyer and Seller shall provide the Independent Accountants with a written statement that includes their respective calculation of the Net Working Capital as of December 31, 2012 and the Independent Accountant’s decision as to the Net Working Capital as of December 31, 2012 shall be communicated to the parties in writing. The Independent Accountants shall be instructed to use every reasonable effort to make its determination with respect to the Disputed Matters (other than the Designated Receivables “Independent Accountant’s Final Net Working Capital Determination”) within 30 days of the submission to it of the Disputed Matters. Buyer shall give the Independent Accountants, during normal business hours and upon reasonable request, access to all work papers and procedures used to prepare Buyer’s determination of the Proposed Closing Date Net Working Capital Statement and to Buyer’s financial employees and any accountants. The final determination of the Net Working Capital as of December 31, 2012 (the “Final Net Working Capital”) shall be the Net Working Capital set forth in the Proposed Closing Date Net Working Capital Statement as adjusted by any Disputed Matters resolved by the parties and by the Independent Accountant’s Final Net Working Capital Determination, if any, which shall be reflected on the Final Net Working Capital Statement (as defined below). The parties shall bear their own respective costs and expenses incurred in Section 4.11))connection with such determination, bank overdraft, accounts payable and accrued expenses related to one-half of the National Cosmetics Business fees of the Independent Accountants shall be paid by Buyer and one-half by Seller. This provision for the resolution of any Disputed Matters shall be the sole and exclusive remedy of the parties for resolving any Disputed Matter and shall be specifically enforceable by the parties and the Iman Business. Seller and its authorized representatives shall have reasonable access to all relevant books and records and employees decision of the Company following the Closing Date to the extent required to complete preparation of the Closing Statement, including, without limitation, preparation of any financial reports or schedules needed to complete the Closing Statement. Seller and Buyer shall split equally the cost of preparing and delivering the Closing Statement.
(b) After receipt of the Closing Statement, Buyer shall have 15 days to review it. Buyer and its authorized representatives shall have reasonable access to Seller's accountants to the extent required to complete their review of the Closing Statement, including, without limitation, the accountants' work papers used in preparation thereof. Unless Buyer delivers written notice to Seller on or prior to the 15th day after receipt of the Closing Statement specifying in reasonable detail its objections to the Closing Statement on the grounds that the Closing Statement (i) was not prepared Independent Accountants in accordance with this Section 1.4 or (ii) contained arithmetic errors, the parties provisions hereof shall be deemed to have accepted final and agreed to the Closing Statement. If Buyer so notifies Seller binding and there shall be no right of such an objection to the Closing Statementappeal therefrom, the parties shall within 15 days following the date of such notice (the "RESOLUTION PERIOD") attempt to resolve their differencesabsent fraud or clear error.
(c) At Within 10 days after the conclusion completion of the Resolution Periodprocedures set forth in Section 3.4(a) and Section 3.4(b) above, Buyer shall make any adjustments to the Proposed Closing Date Net Working Capital Statement as required by Section 3.4(b) (the “ Final Net Working Capital Statement”), and the final purchase price adjustment (the “Purchase Price Adjustment”) shall be determined. The Purchase Price Adjustment shall be determined as the amount of Final Net Working Capital less the Net Working Capital Target. The Purchase Price Adjustment, if any, shall be payable as follows:
(i) if the Purchase Price Adjustment is a negative number, the Purchase Price Adjustment shall be paid by Seller to Buyer through a reduction to the Holdback Amount, and if the Purchase Price Adjustment exceeds the Holdback Amount (disregarding the negative value), then the excess shall be paid by Seller to Buyer by wire transfer in immediately available funds and no portion of the Holdback Amount shall be due and payable by Buyer; or, alternatively:
(ii) if the Purchase Price Adjustment is a negative number, but less than the Holdback Amount (disregarding the negative value), Buyer shall deduct the Purchase Price Adjustment from the Holdback Amount and pay the balance of the Holdback Amount to Seller by wire transfer in immediately available funds; or alternatively
(iii) if the Purchase Price Adjustment is a positive number, then the entire Holdback Amount plus the amount of the Purchase Price Adjustment shall be paid by Buyer to Seller by wire transfer in immediately available funds. The payment of the Purchase Price Adjustment and the Holdback Amount, if any, by Buyer or Seller, as the case may be, shall be due and payable, along with all accrued interest thereon, on or before the 10th Business Day following the 10 day period referred to in this Section 3.4(c) above (the “Payment Due Date”). All amounts remaining to be paid by either Seller or Buyer, as the case may be, to the other under this Section 3.4(c) shall bear interest at a rate equal to the “prime rate” of interest reported from time to time in dispute shallthe Wall Street Journal, in the “Money Rates” section or equivalent substitute section of such paper (the “Prime Rate”), from the period beginning on the Closing Date and ending on the Payment Due Date, and if not paid on or before the Payment Due Date, shall bear interest at the election Prime Rate plus 6% from the Payment Due Date until paid in full.
(d) On December 29, 2012, Buyer and Seller, each assisted by such consultants as they may each wish to utilize, shall conduct a joint survey of either party, be submitted to Price Waterhouse Seller’s inventory (the "NEUTRAL AUDITOR"“Inventory Survey”). The Neutral Auditor Buyer and Seller shall be engaged within five days after an election by either party to submit its objections cooperate in good faith with respect to the Neutral Auditor, Inventory Survey and each party agrees shall use all commercially reasonable efforts to execute, if requested by mutually agree on the Neutral Auditor, a reasonable engagement letter. All fees and expenses quantities of the Neutral Auditor different types of inventory at the time of the Inventory Survey. Buyer and Seller shall be borne equally by Seller and Buyer. The Neutral Auditor shall act as an arbitrator use their commercially reasonable efforts to determine, based solely agree on the written presentations by value at the time of the Inventory Survey. As part of the Inventory Survey, Seller and Buyer made within 15 days shall prepare jointly a statement setting forth the amount of the Neutral Auditor's engagement or such other reasonable period of time inventory and its value to which the parties agreeare agreed, and not by independent reviewif there is any disagreement as to amount or to value, only those issues still in disputea description of the differences and the reasons therefore. The Neutral Auditor's determination amounts set forth thereunder to which the parties are agreed shall be made within 30 days after Seller's used for purposes of the calculation of Estimated Net Working Capital Statement and Buyer's written presentations have been madethe Proposed Closing Net Working Capital Statement, shall be provided that the parties may assert their differences in the Estimated Net Working Capital Statement or the Proposed Closing Net Working Capital Statement, and any disputes set forth in a the written statement delivered description may be taken into account with respect to Seller and Buyer and shall be final, binding, conclusive and nonappealable. The term "FINAL CLOSING STATEMENT" shall mean the definitive Closing Statement agreed to by Seller and Buyer in accordance with Section 1.4(b) or the definitive Closing Statement resulting from the determination made by the Neutral Auditor in accordance with of Final Net Working Capital pursuant to this Section 1.4(c) (in addition to those items theretofore agreed to by Seller and Buyer)3.4.
Appears in 1 contract
Purchase Price Adjustment. (a) As soon as practicable but not later than 60 Within forty-five (45) days following the Closing Date, Seller shall prepare and deliver furnish to Buyer a working capital statement (the “Final Purchase Price Calculation”) consisting of (i) a balance sheet showing Seller’s calculation of NAIC’s Adjusted Capital & Surplus of the Company Effective Time (the “Closing Balance Sheet”), (ii) a calculation of Closing Indebtedness and Transaction Expenses, (iii) a calculation of the Certificate of Authority Amount, and (iv) the Purchase Price based thereon. The Closing Balance Sheet shall be determined in accordance with the Agreed Accounting Principles; provided that, for purposes of the Final Purchase Price Calculation, the Adjusted Capital & Surplus will reflect any payment of Closing Indebtedness or Transaction Expenses made by NAIC between the Effective Time and the Closing. The Final Purchase Price Calculation will be accompanied by such other documentation substantiating in reasonably sufficient detail Seller’s calculation of NAIC’s Adjusted Capital & Surplus as of the close of business on Effective Time and a certificate prepared by Seller’s chief financial officer, given solely in his or her capacity as the chief financial officer (and not in his or her individual capacity), certifying that the Closing Date (Balance Sheet was prepared in accordance with the "CLOSING STATEMENT") setting forth the current assets minus the current liabilities of the Company (the "WORKING CAPITAL") on the basis described in Annex B, accompanied by a report from Arthur Andersen LLP; PROVIDED, HOWEVER, if the transactions contemplaxxx xx Xxxxxxx 4.11(a) or Agreed Accounting Principles.
(b) occurBuyer shall have fifteen (15) Business Days after receipt of the Final Purchase Price Calculation to review such calculation (such period of time, the Closing Statement will be prepared as if “Review Period”). During the Com pany did not own the Dermablend Business or the National Cosmetics Business and the Iman Business as of the Closing DateReview Period, as the case may be; PROVIDED FURTHER that if Seller shall provide to Buyer retains the Dermablend Business and, pursuant to Section 4.11(b), sells the National Cosmetics Business and the Iman Business, the Dermablend Business will also include the net accounts receivable (other than the Designated Receivables (as defined in Section 4.11)), bank overdraft, accounts payable and accrued expenses related to the National Cosmetics Business and the Iman Business. Seller and its authorized representatives shall have reasonable access to all relevant books and books, records and employees working papers of NAIC relevant to the Final Purchase Price Calculation, and shall request that NAIC’s auditors provide to Buyer and its auditors access to all their working papers relevant to the Final Purchase Price Calculation.
(c) If Buyer in good faith believes that the Final Purchase Price Calculation is not prepared in all material respects in accordance with the Agreed Accounting Principles or contains mathematical errors, Buyer shall, prior to the end of the Company following Review Period, provide Seller with a written statement setting forth in reasonable detail those items in the Closing Date Final Purchase Price Calculation that Buyer disputes, including the basis and amount of each item in dispute (the “Statement of Deficiencies”), and the Parties will negotiate in good faith and use commercially reasonable efforts to resolve any such deficiencies within thirty (30) Business Days after the extent required to complete preparation receipt by Seller of the Closing StatementStatement of Deficiencies from Buyer. Any items included in the Final Purchase Price Calculation, includingbut not specifically identified by Buyer in such Statement of Deficiencies, without limitationshall be considered final and binding. If the Parties are unable to resolve any deficiencies within such thirty (30) Business Day-period, preparation of any financial reports or schedules needed Seller and Buyer shall submit all matters that remain in dispute to complete a nationally recognized independent public accounting firm as shall be mutually agreed by Seller and Buyer (the Closing Statement“Independent Accounting Firm”). Seller and Buyer shall split equally jointly retain the Independent Accounting Firm and agree to enter into a customary engagement letter. Within thirty (30) Business Days after such firm’s engagement, or as soon as practicable after selection of such firm, the Independent Accounting Firm shall make a final determination, in accordance with the terms and provisions of this Agreement and not by way of an independent review, binding on the Parties to this Agreement, with respect to all matters in dispute. The cost of preparing the Independent Accounting Firm’s review and delivering the Closing Statement.
(b) After receipt of the Closing Statement, Buyer determination shall have 15 days to review it. Buyer and its authorized representatives shall have reasonable access to Seller's accountants to the extent required to complete their review of the Closing Statement, including, without limitation, the accountants' work papers used in preparation thereof. Unless Buyer delivers written notice to Seller on or prior to the 15th day after receipt of the Closing Statement specifying in reasonable detail its objections to the Closing Statement on the grounds that the Closing Statement be paid (i) was not prepared by Seller if the items in accordance with this Section 1.4 dispute are resolved in favor of Buyer or (ii) contained arithmetic errorsby Buyer if the items in dispute are resolved in favor of Seller. If the items in dispute are resolved in part in favor of Seller and in part in favor of Buyer, the parties such costs shall be deemed to have accepted and agreed to the Closing Statement. If Buyer so notifies Seller of such an objection to the Closing Statement, the parties shall within 15 days following the date of such notice (the "RESOLUTION PERIOD") attempt to resolve their differences.
(c) At the conclusion of the Resolution Period, any amounts remaining in dispute shall, at the election of either party, be submitted to Price Waterhouse (the "NEUTRAL AUDITOR"). The Neutral Auditor shall be engaged within five days after an election by either party to submit its objections to the Neutral Auditor, and each party agrees to execute, if requested by the Neutral Auditor, a reasonable engagement letter. All fees and expenses of the Neutral Auditor shall be borne equally by Seller and Buyer. The Neutral Auditor shall act as an arbitrator to determine, based solely on the written presentations by Seller and Buyer made within 15 days of the Neutral Auditor's engagement or such other reasonable period of time to which the parties agree, and not by independent review, only those issues still in dispute. The Neutral Auditor's determination shall be made within 30 days after Seller's and Buyer's written presentations have been made, shall be set forth in a written statement delivered to Seller and Buyer and shall be final, binding, conclusive and nonappealable. The term "FINAL CLOSING STATEMENT" shall mean the definitive Closing Statement agreed to shared by Seller and Buyer in accordance the inverse proportion to the aggregate dollar amount of items resolved in favor of Seller compared to the aggregate dollar amount of items resolved in favor of Buyer. For example, if Seller disputes a total of $100 and the Independent Accounting Firm awards $60 in favor of Seller, Buyer shall pay 60% of such costs. During the review by the Independent Accounting Firm, Buyer and Seller will each make available to the Independent Accounting Firm interviews with such individuals, and such information, books and records and work papers, as may be reasonably required by the Independent Accounting Firm to fulfill its obligations under this Section 1.4(b2.5(c). Buyer and Seller shall not have any ex parte communications with the Independent Accounting Firm. In acting under this Agreement, the Independent Accounting Firm will be entitled to the privileges and immunities of an arbitrator; provided, however, that the Independent Accounting Firm will act as an expert in accounting, and not as arbitrator, to resolve any such deficiencies.
(d) The Final Purchase Price Calculation as determined (i) by mutual agreement of the Parties, (ii) following the failure of Buyer to deliver a Statement of Deficiencies prior to the end of the Review Period, or (iii) by the definitive Independent Accounting Firm, shall be the “Final Purchase Price.” To the extent the Final Purchase Price exceeds the Closing Statement resulting from Purchase Price, Buyer shall deliver to Seller the difference between such amounts by wire transfer of immediately available funds to a bank account designated in writing by Seller. To the extent the Final Purchase Price is less than the Closing Purchase Price, Seller shall deliver to Buyer the difference between such amounts by wire transfer of immediately available funds to a bank account designated in writing by Buyer. All payments to Buyer or Seller pursuant to this Section 2.5(d) shall be made within five (5) Business Days following the determination made by of the Neutral Auditor in accordance with this Section 1.4(c) (in addition to those items theretofore Final Purchase Price or as otherwise agreed to by Seller and Buyer)between the Parties.
Appears in 1 contract
Samples: Stock Purchase Agreement
Purchase Price Adjustment. (a) As soon as practicable but not later than 60 days following The Parties acknowledge and agree that the Closing Date, Seller shall prepare Purchase Price has been calculated based on Section 2.4.2 of the Unitholders Agreement and deliver to Buyer a working capital statement that the Parties have agreed on the amount of the EBITDA of the Company as and its subsidiaries and the Multiple and the Sellers have provided the amount of the close of business on Xxxxxxxxx Counsel Fees in the Closing Date (the "CLOSING STATEMENT") setting forth the current assets minus the current liabilities of the Company (the "WORKING CAPITAL") on the basis described in Annex B, accompanied by a report from Arthur Andersen LLP; PROVIDED, HOWEVER, if the transactions contemplaxxx xx Xxxxxxx 4.11(a) or (b) occur, the Closing Statement will be prepared as if the Com pany did not own the Dermablend Business or the National Cosmetics Business and the Iman Business as certificate delivered pursuant to Section 5.1(f). Within 30 days of the Closing Date, as the case may be; PROVIDED FURTHER that if Buyer retains the Dermablend Business and, pursuant Sellers agree to Section 4.11(b), sells the National Cosmetics Business and the Iman Business, the Dermablend Business will also include the net accounts receivable (other than the Designated Receivables (as defined in Section 4.11)), bank overdraft, accounts payable and accrued expenses related deliver to the National Cosmetics Business and Purchaser the Iman Business. Seller and its authorized representatives shall have reasonable access to all relevant books and records and employees amount of the Company following Net Debt as of the Closing Date to accompanied by materials showing in reasonable detail the extent required to complete preparation Sellers’ calculation of such amount (the Closing Statement, including, without limitation, preparation of any financial reports or schedules needed to complete the Closing Statement. Seller and Buyer shall split equally the cost of preparing and delivering the Closing Statement“Proposed Calculation”).
(b) After The Purchaser shall have the right for 30 days following its receipt of the Closing Statement, Buyer shall have 15 days Proposed Calculation to review it. Buyer and its authorized representatives shall have reasonable access to Seller's accountants object to the extent required to complete their review of Proposed Calculation. Any objection made by the Closing Statement, including, without limitation, the accountants' work papers used in preparation thereof. Unless Buyer delivers written notice to Seller on or prior to the 15th day after receipt of the Closing Statement specifying Purchaser shall be accompanied by materials showing in reasonable detail the Purchaser’s support for its objections to the Closing Statement on the grounds that the Closing Statement (i) was not prepared in accordance with this Section 1.4 or (ii) contained arithmetic errors, the parties position. The Purchaser shall be deemed to have accepted and agreed waived any rights to object under this Agreement unless the Purchaser furnishes its written objections, together with supporting materials, to the Closing StatementSellers within such 30-day period following the Purchaser’s receipt of the Proposed Calculation. The Purchaser and the Sellers shall meet to resolve any differences in their respective positions with respect to the Proposed Calculation. If Buyer so notifies Seller the Sellers and the Purchaser are unable to agree upon the Proposed Calculation within 30 days of the Sellers’ receipt of the Purchaser’s objections, the Purchaser or the Sellers may submit the matter to be resolved through an arbitration procedure conducted in accordance with Section 6.3. In the event that the Sellers fail to deliver the Proposed Calculation within 30 days of the Closing Date as required by Section 1.4(a), the Purchaser shall have the right following such an 30 days after the Closing Date to deliver its proposed calculation of the Net Debt, and the Sellers shall have the right to furnish written objection to the Closing Statement, Purchaser’s proposed calculation of the parties shall Net Debt so long as such written objections are delivered to the Purchaser within 15 days following of the date delivery of such notice (the "RESOLUTION PERIOD") attempt Purchaser’s proposed calculation to resolve their differencesthe Sellers. Any further objections to any amount of Net Debt initially proposed by the Purchaser pursuant to the immediately preceding sentence shall be resolved in the same manner as described above in this Section 1.4(b).
(c) At Following the conclusion final determination of the Resolution Period, any amounts remaining in dispute shall, at the election of either party, be submitted to Price Waterhouse (the "NEUTRAL AUDITOR"). The Neutral Auditor shall be engaged within five days after an election by either party to submit its objections to the Neutral Auditor, and each party agrees to execute, if requested by the Neutral Auditor, a reasonable engagement letter. All fees and expenses of the Neutral Auditor shall be borne equally by Seller and Buyer. The Neutral Auditor shall act Proposed Calculation as an arbitrator to determine, based solely on the written presentations by Seller and Buyer made within 15 days of the Neutral Auditor's engagement or such other reasonable period of time to which the parties agree, and not by independent review, only those issues still in dispute. The Neutral Auditor's determination shall be made within 30 days after Seller's and Buyer's written presentations have been made, shall be set forth in a written statement delivered to Seller and Buyer and shall be final, binding, conclusive and nonappealable. The term "FINAL CLOSING STATEMENT" shall mean the definitive Closing Statement agreed to by Seller and Buyer in accordance with Section 1.4(b) above, (i) if the Purchase Price (as determined using the finally resolved WEST\229704094.6 #PageNum# calculation of the Net Debt) is less than the Purchase Price paid at the Closing pursuant to Section 1.3, then the Sellers shall pay to the Purchaser by wire transfer of immediately available funds an amount equal to such difference within five (5) Business Days of the date of the final determination and (ii) if the Purchase Price (as determined using the finally resolved calculation of the Net Debt) is greater than the Purchase Price paid at the Closing pursuant to Section 1.3, then the Purchaser shall pay to the Sellers by wire transfer of immediately available funds an amount equal to such difference within five (5) Business Days of the date of the final determination in the same proportion as the payment of the Purchase Price at the Closing pursuant to Section 1.3 (or the definitive Closing Statement resulting from the determination made as otherwise instructed in writing by the Neutral Auditor in accordance with Sellers).
(d) All amounts to be paid under this Section 1.4(c) (in addition 1.4 shall be deemed to those items theretofore agreed be adjustments to by Seller and Buyer)the Purchase Price.
Appears in 1 contract
Samples: Securities Purchase Agreement (FMC Technologies Inc)
Purchase Price Adjustment. (a) As soon At least three Business Days prior to the Closing, the Seller shall deliver to the Purchaser a statement (the “Draft Working Capital Statement”) based on an estimated consolidated balance sheet of the Seller and the Subsidiaries as practicable but not later than 60 days following of immediately prior to the Closing Date, Seller shall prepare and deliver to Buyer a working capital statement in accordance with the principles and methodologies set forth in Schedule 1.10 containing the Seller’s good faith calculation of the Company as of Purchase Price, including the close of business on Estimated Working Capital and the Closing Date (the "CLOSING STATEMENT") setting forth the current assets minus the current liabilities of the Company (the "WORKING CAPITAL") on the basis described in Annex B, accompanied by a report from Arthur Andersen LLP; PROVIDED, HOWEVER, if the transactions contemplaxxx xx Xxxxxxx 4.11(a) or Estimated Working Capital Adjustment.
(b) occurThe Purchase Price is subject to adjustment as follows:
(i) within seventy-five (75) days of the Closing, the Closing Purchaser will review the Draft Working Capital Statement and the Seller will provide access, upon every reasonable request, to the Purchaser and its professional advisors to all working papers of its auditors, its accounting books and records and the appropriate personnel to verify the accuracy, presentation and other matters relating to the preparation of the Draft Working Capital Statement;
(ii) if the Purchaser has any objections to the Draft Working Capital Statement, the Purchaser will so notify the Seller setting out the basis of each objection and each amount in dispute (the “Disputed Items”);
(iii) the Purchaser will be prepared as deemed to have accepted the Draft Working Capital Statement if it does not notify the Seller of any objection within seventy-five (75) days after the Closing;
(iv) if the Com pany did not own Purchaser objects to the Dermablend Draft Working Capital Statement, the Purchaser and Seller will work expeditiously and in good faith in an attempt to resolve the outstanding issues within a further period of ten (10) Business or Days after the National Cosmetics Business date the Purchaser delivers to the Seller a notice of its objections, and failing resolution the matter will be submitted for determination to an independent national firm of chartered accountants mutually agreed to by the Purchaser and the Iman Seller (and, failing such agreement between the Purchaser and the Seller within a further period of five Business Days, such independent national firm of chartered accountants will be Ernst & Young, or if such firm is unable to act, KPMG) (the “Financial Expert”). The Financial Expert will act as an expert only and not an arbitrator and its determination will be final and binding upon the parties and will not be subject to appeal, absent manifest error;
(v) the Purchaser and the Seller will each bear the fees and expenses of the Closing Datetheir respective professional advisors in preparing or reviewing, as the case may be; PROVIDED FURTHER that if Buyer retains the Dermablend Business and, pursuant to Section 4.11(b), sells the National Cosmetics Business and the Iman Business, the Dermablend Business will also include the net accounts receivable (other than the Designated Receivables (as defined in Section 4.11)), bank overdraft, accounts payable and accrued expenses related to the National Cosmetics Business and the Iman Business. Seller and its authorized representatives shall have reasonable access to all relevant books and records and employees of the Company following the Closing Date to the extent required to complete preparation of the Closing Statement, including, without limitation, preparation of any financial reports or schedules needed to complete the Closing Statement. Seller and Buyer shall split equally the cost of preparing and delivering the Closing Statement.
(b) After receipt of the Closing Statement, Buyer shall have 15 days to review it. Buyer and its authorized representatives shall have reasonable access to Seller's accountants to the extent required to complete their review of the Closing Statement, including, without limitation, the accountants' work papers used in preparation thereof. Unless Buyer delivers written notice to Seller on or prior to the 15th day after receipt of the Closing Statement specifying in reasonable detail its objections to the Closing Statement on the grounds that the Closing Statement (i) was not prepared in accordance with this Section 1.4 or (ii) contained arithmetic errors, the parties shall be deemed to have accepted and agreed to the Closing Draft Working Capital Statement. If Buyer so notifies Seller of such an objection a matter is referred to the Closing StatementFinancial Expert pursuant to this Section 1.10, the parties shall within 15 days following the date of such notice (the "RESOLUTION PERIOD") attempt to resolve their differences.
(c) At the conclusion of the Resolution Period, any amounts remaining in dispute shall, at the election of either party, be submitted to Price Waterhouse (the "NEUTRAL AUDITOR"). The Neutral Auditor shall be engaged within five days after an election by either party to submit its objections to the Neutral Auditor, and each party agrees to execute, if requested by the Neutral Auditor, a reasonable engagement letter. All fees costs and expenses of the Neutral Auditor shall Financial Expert will be borne equally by the party reasonably identified by the Financial Expert as being the party the majority of whose positions on the Disputed Items, based on the aggregate value of such positions, were not sustained by the Financial Expert. The Seller and Buyer. The Neutral Auditor shall act as an arbitrator the Purchaser will each bear their own costs in presenting their respective cases to determine, based solely on the written presentations by Seller and Buyer made within 15 days Financial Expert;
(vi) immediately following acceptance or deemed acceptance of the Neutral Auditor's engagement Draft Working Capital Statement by the Purchaser or such other reasonable period the resolution of time to which the parties agree, and not by independent review, only those issues still in dispute. The Neutral Auditor's determination shall be made within 30 days after Seller's and Buyer's written presentations have been made, shall be set forth in a written statement delivered to Seller and Buyer and shall be final, binding, conclusive and nonappealable. The term "FINAL CLOSING STATEMENT" shall mean the definitive Closing Statement agreed to by Seller and Buyer any dispute in accordance with Section 1.4(b1.10(b)(iv), as the case may be, the Purchaser will deliver to the Seller the final Working Capital statement (the “Closing Working Capital Statement”) containing the Final Working Capital. The Closing Working Capital Statement will be final and binding upon the parties and will not be subject to appeal, absent manifest error; and
(vii) within five Business Days after the delivery of the Closing Working Capital Statement:
(1) if the amount of the Final Working Capital is equal to the Estimated Working Capital, there will be no further adjustment to the Purchase Price.
(2) If there is no Estimated Working Capital Adjustment at the Closing pursuant to Section 1.3(a), then the following shall apply:
a. If the amount of Final Working Capital is greater than the Maximum Target Working Capital, then the Purchaser will pay to the Seller the amount by which the Final Working Capital exceeds the Maximum Target Working Capital.
b. If the amount of Final Working Capital is less than the Minimum Target Working Capital, then the Seller will pay to the Purchaser the amount by which the Minimum Target Working Capital exceeds the Final Working Capital.
c. If the amount of Final Working Capital is less than or equal to the definitive Closing Statement resulting from Maximum Target Working Capital and greater than or equal to the determination made Minimum Target Working Capital, there will be no further adjustment to the Purchase Price.
(3) If the Estimated Working Capital Adjustment was a positive number, then the following shall apply:
a. If the amount of Final Working Capital is greater than the Estimated Working Capital, then the Purchaser will pay to the Seller the amount of such excess; or
b. If the amount of Final Working Capital is less than the Estimated Working Capital, then the Seller will pay to the Purchaser the amount of such shortfall; provided, however, that notwithstanding the foregoing:
i. If the Final Working Capital is less than or equal to the Maximum Target Working Capital and greater than or equal to the Minimum Target Working Capital, the amount of the downward adjustment of the Purchase Price will be limited to the amount by which the Neutral Auditor in accordance with this Section 1.4(cEstimated Working Capital exceeds the Maximum Target Working Capital; and
ii. If the Final Working Capital is less than the Minimum Target Working Capital, the amount of the downward adjustment of the Purchase Price will be limited to the sum of (x) the amount by which the Estimated Working Capital exceeds the Maximum Target Working Capital plus (in addition y) the amount by which the Minimum Target Working Capital exceeds the Final Working Capital.
(4) If the Estimated Working Capital Adjustment was a negative number, then the following shall apply:
a. If the amount of Final Working Capital is less than or equal to those items theretofore agreed the Estimated Working Capital, then the Seller will pay to the Purchaser the amount of such shortfall; or
b. If the amount of Final Working Capital is greater than the Estimated Working Capital, then the Purchaser will pay to the Seller the amount of such excess; provided, however, that notwithstanding the foregoing:
i. If the Final Working Capital is less than or equal to the Maximum Target Working Capital and greater than or equal to the Minimum Target Working Capital, the amount of the upward adjustment of the Purchase Price will be limited to the amount by Seller and Buyer)which the Minimum Target Working Capital exceeds the Estimated Working Capital; and
ii. If the Final Working Capital is greater than the Maximum Target Working Capital, the amount of the upward adjustment of the Purchase Price will be limited to the sum of (x) the amount by which the Minimum Target Working Capital exceeds the Estimated Working Capital plus (y) the amount by which the Final Working Capital exceeds the Maximum Target Working Capital.
Appears in 1 contract
Purchase Price Adjustment. (a) As soon as practicable but Promptly after the Closing Date, and in any event not later than 60 ten (10) days following the Closing Date, Seller Sellers shall prepare and deliver to Buyer Purchaser (i) a working capital statement of the Company as Working Capital at the Closing Date prepared in accordance with the Business Accounting Principles (the "Working Capital Statement"), and (ii) a calculation of the close amount of business on Cash and Cash Equivalents of the Conveyed Companies and of the Asset Selling Entities to the extent actually transferred to Purchaser at the Closing Date (the "CLOSING STATEMENTCash Statement") setting forth the current assets minus the current liabilities of the Company (the "WORKING CAPITAL") on the basis described in Annex B, accompanied by a report from Arthur Andersen LLP; PROVIDED, HOWEVER, if the transactions contemplaxxx xx Xxxxxxx 4.11(a) or (b) occur, the Closing Statement will be prepared as if the Com pany did not own the Dermablend Business or the National Cosmetics Business and the Iman Business as of the Closing Date, as the case may be; PROVIDED FURTHER that if Buyer retains the Dermablend Business and, pursuant to Section 4.11(b), sells the National Cosmetics Business and the Iman BusinessPurchaser shall give representatives of Sellers access, the Dermablend Business will also include the net accounts receivable (other than the Designated Receivables (as defined in Section 4.11))during normal business hours, bank overdraft, accounts payable and accrued expenses related to the National Cosmetics Business and the Iman Business. Seller and its authorized representatives shall have reasonable access to all relevant premises, books and records and employees appropriate personnel of the Company following Business and the Closing Date to Conveyed Companies for purposes of the extent required to complete preparation of the Closing Statement, including, without limitation, preparation of any financial reports or schedules needed to complete the Closing Statement. Seller and Buyer shall split equally the cost of preparing and delivering the Closing Working Capital Statement.
(b) After receipt of the Closing Statement, Buyer shall have 15 days to review it. Buyer Purchaser and its authorized representatives shall have reasonable access to SellerPurchaser's accountants to and financial and other advisors may make reasonable inquiries of Sellers and/or their accountants regarding questions concerning or disagreements with the extent required to Working Capital Statement and the Cash Statement arising in the course of such review. Purchaser and Purchaser's accountants shall complete their review of the Closing Working Capital Statement and the Cash Statement within fifteen (15) days after the delivery thereof to Purchaser. Promptly following completion of their review (but in no event later than two (2) Business Days following the conclusion of such fifteen (15) day period), Purchaser shall submit to Sellers a letter regarding its concurrence or disagreement with the accuracy of the Working Capital Statement and/or the Cash Statement; provided that if Purchaser submits a letter of disagreement, such letter will specify the items of the Working Capital Statement and/or the Cash Statement with which it disagrees. Unless Purchaser delivers a letter disagreeing with the accuracy of the Working Capital Statement and/or the Cash Statement, includingincluding a description of the specific items of the Working Capital Statement with which it disagrees, without limitationwithin two (2) Business Days following the conclusion of such fifteen (15) day period, the accountants' work papers used Working Capital Statement and the Cash Statement shall be final and binding upon the Parties. Following delivery of such a letter so disagreeing, Sellers and Purchaser shall attempt in preparation thereof. Unless Buyer delivers written notice good faith to Seller on or prior resolve promptly any disagreement as to the 15th day after receipt computation of any item in the Closing Working Capital Statement specifying in reasonable detail its objections and/or the Cash Statement, and any items as to the Closing Statement on the grounds that the Closing Statement (i) was not prepared in accordance with this Section 1.4 or (ii) contained arithmetic errors, the parties which there is no disagreement shall be deemed to have accepted agreed. If a resolution of such disagreement has not been effected within ten (10) days (or longer, as mutually agreed by the Parties) after delivery of such letter, then Sellers and agreed Purchaser shall submit any disagreement regarding the Working Capital Statement and/or the Cash Statement (a "Disputed Item") to the Closing Statement. If Buyer so notifies Seller Los Angeles, California office of such an objection to the Closing Statement, the parties shall within 15 days following the date of such notice Ernst & Young (the "RESOLUTION PERIOD") attempt to resolve their differences.
(c) At the conclusion of the Resolution Period, any amounts remaining in dispute shall, at the election of either party, be submitted to Price Waterhouse (the "NEUTRAL AUDITORAccountant"). The Neutral Auditor shall be engaged within five days after an election by either party to submit its objections to the Neutral Auditor, and each party agrees to execute, if requested by the Neutral Auditor, a reasonable engagement letter. All fees and expenses of the Neutral Auditor shall be borne equally by Seller and Buyer. The Neutral Auditor shall act as an arbitrator to determine, based solely on the written presentations by Seller and Buyer made within 15 days of the Neutral Auditor's engagement or such other reasonable period of time to which the parties agree, and not by independent review, only those issues still in dispute. The Neutral Auditor's determination shall be made within 30 days after Seller's and Buyer's written presentations have been made, shall be set forth in a written statement delivered to Seller and Buyer and shall be final, binding, conclusive and nonappealable. The term "FINAL CLOSING STATEMENT" shall mean the definitive Closing Statement agreed to by Seller and Buyer in accordance with Section 1.4(b) or the definitive Closing Statement resulting from the determination made by the Neutral Auditor in accordance with this Section 1.4(c) (in addition to those items theretofore agreed to by Seller and Buyer).
Appears in 1 contract
Samples: Stock and Asset Purchase Agreement (TTM Technologies Inc)
Purchase Price Adjustment. (a) As soon as practicable No fewer than three Business Days prior to the anticipated Closing Date, but not later no earlier than 60 days following five Business Days prior to the Closing Date, Seller shall prepare and deliver to Buyer Buyer, a working capital statement of the Company as of the close of business on the Closing Date (the "CLOSING STATEMENT") “Estimated Closing Statement”), setting forth Seller’s good faith estimate, together with reasonable supporting detail and accompanied by a schedule setting forth the current assets minus relevant calculations of each of (i) Closing Cash, (ii) Closing Debt, (iii) Closing Transaction Expenses and the current liabilities payees thereof along with their respective wiring instructions, and (iv) Working Capital, which amounts shall be used to determine the calculation of the Company Purchase Price, Net Cash Purchase Price and other payments to be made pursuant to Section 2.2 at Closing (the "WORKING CAPITAL") Net Cash Purchase Price calculated based upon the estimated amounts set forth on the basis described Estimated Closing Statement shall be referred to herein as the “Estimated Cash Price”). The Estimated Closing Statement shall also include the amount due to, and wire instructions for, each Person entitled to receive any payment pursuant to Section 2.2. The Estimated Closing Statement shall be prepared in Annex Ba manner consistent with the definitions set forth in this Agreement. Prior to Closing, accompanied Seller shall provide to Buyer whatever information or documentation in Seller’s or the Acquired Companies’ possession, custody or control that is reasonably necessary for Buyer to review the Estimated Closing Statement. Prior to the Closing, Seller shall consider in good faith any reasonable comments to the Estimated Closing Statement made by a report from Arthur Andersen LLPBuyer; PROVIDED, HOWEVER, if provided that in no event shall any such comments delay the transactions contemplaxxx xx Xxxxxxx 4.11(a) or Closing.
(b) occurAs promptly as practicable, the Closing Statement will be prepared as if the Com pany did not own the Dermablend Business or the National Cosmetics Business and the Iman Business as of but in any event within 60 days after the Closing Date, Buyer will cause to be prepared and delivered to Seller a draft statement (the “Draft Closing Statement”), setting forth Buyer’s good faith determination of (i) Closing Cash, (ii) Closing Debt, (iii) Closing Transaction Expenses, and (iv) Working Capital. Buyer shall, and shall cause the Acquired Companies to, provide reasonable access to the books and records, outside accounting firm, working papers (subject to the execution of customary access letters), and personnel of Buyer and the Acquired Companies, in each case that is reasonably requested by Seller in order to enable Seller to confirm or dispute the accuracy of the information set forth on the Draft Closing Statement following the delivery thereof to Seller or to participate in the dispute resolution process set forth in this Section 2.5.
(c) If Seller disagrees with the Buyer’s computation of Closing Cash, Closing Debt, Closing Transaction Expenses, or Working Capital set forth on the Draft Closing Statement, then Seller may, within 45 days after receipt of the Draft Closing Statement, deliver a written notice (an “Objection Notice”) to Buyer setting forth Seller’s calculation of such items. The Objection Notice shall specifically state Seller’s disagreement with the information set forth on the Draft Closing Statement and the basis therefor. If an Objection Notice is not delivered within such time period, then the amount of Closing Cash, Closing Debt, Closing Transaction Expenses, and Working Capital set forth on the Draft Closing Statement shall be final, conclusive and binding upon the Parties. If an Objection Notice is delivered and it does not object to one or more of the amount of Closing Cash, Closing Debt, Closing Transaction Expenses, or Working Capital in each case as set forth on the Draft Closing Statement, then the item(s) for which no objection was made shall be final, conclusive and binding upon the Parties.
(d) If an Objection Notice is delivered within the 45-day period required by Section 2.5(c), Buyer and Seller shall, during the 30-day period following the receipt by Buyer of such notice, use their reasonable good faith efforts to reach agreement on the disputed items or amounts, but if they do not obtain a complete and final resolution within such 30-day period, then Buyer and Seller will jointly retain the dispute resolution group of BDO USA, LLC, with which the Parties acknowledge that they have no current engagement (unless another accounting firm is mutually agreed to in writing between Buyer and Seller prior to such time) (the “Independent Accountant”), to resolve any remaining disagreements. In connection with the retention by Buyer and Seller of the Independent Accountant, Buyer and Seller shall each execute an engagement letter with the Independent Accountant in a form reasonably satisfactory to each of Buyer and Seller. Buyer and Seller shall direct the Independent Accountant to render a determination within 30 Business Days of its retention, and the Parties and their respective employees shall cooperate with the Independent Accountant during its engagement. The Independent Accountant shall consider only those items in dispute. The Independent Accountant’s determination shall be (i) based on the definitions of, and methodologies to calculate, each of Closing Cash, Closing Debt, Closing Transaction Expenses, and Working Capital, as the case may be; PROVIDED FURTHER that if Buyer retains , and any related terms (i.e., not on the Dermablend Business and, pursuant to Section 4.11(bbasis of an independent review), sells the National Cosmetics Business and the Iman Business, the Dermablend Business will also include the net accounts receivable (other than the Designated Receivables (as defined in Section 4.11)), bank overdraft, accounts payable and accrued expenses related to the National Cosmetics Business and the Iman Business. Seller and its authorized representatives shall have reasonable access to all relevant books and records and employees of the Company following the Closing Date to the extent required to complete preparation of the Closing Statement, including, without limitation, preparation of any financial reports or schedules needed to complete the Closing Statement. Seller and Buyer shall split equally the cost of preparing and delivering the Closing Statement.
(b) After receipt of the Closing Statement, Buyer shall have 15 days to review it. Buyer and its authorized representatives shall have reasonable access to Seller's accountants to the extent required to complete their review of the Closing Statement, including, without limitation, the accountants' work papers used in preparation thereof. Unless Buyer delivers written notice to Seller on or prior to the 15th day after receipt of the Closing Statement specifying in reasonable detail its objections to the Closing Statement on the grounds that the Closing Statement (i) was not prepared in accordance with this Section 1.4 or (ii) contained arithmetic errors, conclusive and binding upon the parties shall be deemed to have accepted and agreed to the Closing StatementParties. If Buyer so notifies Seller of such an objection to the Closing Statement, the parties shall within 15 days following the date of such notice (the "RESOLUTION PERIOD") attempt to resolve their differences.
(c) At the conclusion The Independent Accountant’s determination of the Resolution Period, any amounts remaining matters raised in dispute shall, at the election of either party, Objection Notice cannot be submitted more favorable to Price Waterhouse (Buyer than the "NEUTRAL AUDITOR")related amount reflected on the Draft Closing Statement nor more favorable to Seller than the related amount reflected in the Objection Notice. The Neutral Auditor shall be engaged within five days after an election by either party to submit its objections to the Neutral Auditor, and each party agrees to execute, if requested by the Neutral Auditor, a reasonable engagement letter. All fees and expenses of the Neutral Auditor shall Independent Accountant will be borne equally by Seller allocated between Buyer, on the one hand, and Buyer. The Neutral Auditor shall act as an arbitrator to determineSeller, on the other hand, based solely on upon the written presentations by Seller and Buyer made within 15 days percentage which the portion of the Neutral Auditor's engagement or matters raised in the Objection Notice not awarded to such other reasonable period of time Party bears to which the parties agreeamount actually contested by such Party. For example, and not if Seller claims that the appropriate adjustments are, in the aggregate, $1,000 greater than the amount determined by independent review, only those issues still in dispute. The Neutral Auditor's determination shall be made within 30 days after Seller's and Buyer's written presentations have been made, shall be set forth in a written statement delivered to Seller and Buyer and shall if the Independent Accountant ultimately resolves such matters by awarding to Seller, in the aggregate, $300 of the $1,000 contested, then the fees, costs and expenses of the Independent Accountant will be finalallocated 30% (i.e., binding$300 ÷ $1,000) to Buyer and 70% (i.e., conclusive and nonappealable. The term "FINAL CLOSING STATEMENT" shall mean the definitive Closing Statement agreed $700 ÷ $1,000) to by Seller and Buyer in accordance with Section 1.4(b) or the definitive Closing Statement resulting from the determination made by the Neutral Auditor in accordance with this Section 1.4(c) (in addition to those items theretofore agreed to by Seller and Buyer)Seller.
Appears in 1 contract
Purchase Price Adjustment. (a) As soon as practicable but not later than 60 Within sixty (60) days following after the Closing Date, Seller Buyer shall prepare and deliver to Buyer Seller a working capital statement setting forth the Closing Date Net Working Capital (the “Purchase Price Adjustment Statement”) and a statement setting forth Buyer’s calculation of the Indebtedness of the Company as of the close of business on the Closing Date (the "CLOSING STATEMENT") setting forth the current assets minus the current liabilities of the Company (the "WORKING CAPITAL") on the basis described in Annex B, accompanied by a report from Arthur Andersen LLP; PROVIDED, HOWEVER, if the transactions contemplaxxx xx Xxxxxxx 4.11(a) or (b) occur, the Closing Statement will be prepared as if the Com pany did not own the Dermablend Business or the National Cosmetics Business and the Iman Business Subsidiary as of the Closing Date(such amount, as the case may be; PROVIDED FURTHER that if Buyer retains “Closing Indebtedness Amount”, and such statement of the Dermablend Closing Indebtedness Amount, together with the Purchase Price Adjustment Statement, the “Adjustment Statements”). The Purchase Price Adjustment Statement shall be prepared in accordance with GAAP applied on a basis consistent with the Financial Statements.
(b) Each party shall provide the other party and its representatives with reasonable access to the Business and, pursuant to Section 4.11(b), sells Records and relevant personnel and properties during the National Cosmetics Business preparation of the Adjustment Statements and the Iman Businessresolution of any disputes that may arise under this Section 2.05.
(c) If Seller disagrees with the determination of the Closing Date Net Working Capital or Indebtedness as set forth in the Adjustment Statements, Seller shall notify Buyer in writing of such disagreement within thirty (30) days after delivery of the Dermablend Business will also include Adjustment Statements to Seller (the net accounts receivable “Objection Disputes”). During the thirty (other than the Designated Receivables (as defined in Section 4.11))30) day period of its review, bank overdraft, accounts payable and accrued expenses related to the National Cosmetics Business and the Iman Business. Seller and its authorized representatives shall have reasonable access to all relevant books and records and employees of the Company following the Closing Date to the extent required to complete preparation of the Closing Statementany documents, including, without limitation, preparation of any financial reports schedules or schedules needed to complete the Closing Statement. Seller and Buyer shall split equally the cost of preparing and delivering the Closing Statement.
(b) After receipt of the Closing Statement, Buyer shall have 15 days to review it. Buyer and its authorized representatives shall have reasonable access to Seller's accountants to the extent required to complete their review of the Closing Statement, including, without limitation, the accountants' work papers used in the preparation thereofof the Adjustment Statements. Unless Buyer delivers The failure of Seller to deliver written notice of an Objection Dispute to Buyer within thirty (30) days after delivery of the Adjustment Statements to Seller on or prior to the 15th day after receipt shall be deemed acceptance of the Adjustment Statements and agreement to Buyer’s calculation of Closing Statement specifying Date New Working Capital and Indebtedness as set forth in reasonable detail its objections the Adjustment Statements.
(d) Subject to Section 2.05(c), Buyer and Seller shall negotiate in good faith to resolve any Objection Dispute and any resolution agreed to in writing by Buyer and Seller shall be final and binding upon the Closing Statement parties. If Buyer and Seller are unable to resolve all Objection Disputes within twenty (20) days of delivery of written notice of such Objection Disputes by Seller to Buyer, then the disputed matters shall be referred for final determination within fifteen (15) days thereafter to an independent accounting firm (the “Accounting Arbitrator”) that Buyer and Seller shall jointly select that is an accounting firm of national standing and that is not the independent auditor of (and does not otherwise serve as a Consultant to) either Buyer or the Company. If Buyer and Seller are unable to agree upon an Accounting Arbitrator within such time period, then the Accounting Arbitrator shall be an accounting firm of national standing designated by the American Arbitration Association in New York, New York; provided, that such firm shall not be the independent auditor of (or otherwise serve as a Consultant to) either Buyer or the Company. The Accounting Arbitrator shall only consider those items and amounts set forth on the grounds that Adjustment Statement as to which Buyer and Seller have disagreed within the Closing Statement (itime periods and amounts and on the terms specified in Section 2.05(c) was not prepared and Section 2.05(d) and must resolve all unresolved Objection Disputes in accordance with the terms and provisions of this Section 1.4 Agreement. The Accounting Arbitrator shall deliver to Buyer and Seller, as promptly as practicable and in any event within sixty (60) days after its appointment, a written report setting forth the resolution of any unresolved Objection Disputes determined in accordance with the terms herein. The Accounting Arbitrator shall select as a resolution the position of either Buyer or Seller for each Objection Dispute (ii) contained arithmetic errors, based solely on presentations and supporting material provided by the parties and not pursuant to any independent review) and may not impose an alternative resolution. Such report shall be deemed final and binding upon all of the parties to have accepted and this Agreement. The term “Final Closing Date Net Working Capital” shall mean the Closing Date Net Working Capital agreed to by Buyer and Seller and/or resulting from the Closing Statement. If Buyer so notifies Seller of such an objection to the Closing Statement, the parties shall within 15 days following the date of such notice (the "RESOLUTION PERIOD") attempt to resolve their differences.
(c) At the conclusion decision of the Resolution PeriodAccounting Arbitrator, any amounts remaining or if Seller fails to deliver written notice of disagreement to Buyer within the thirty (30) day period provided in dispute shall, at the election of either party, be submitted to Price Waterhouse (the "NEUTRAL AUDITOR"Section 2.05(c). The Neutral Auditor term “Final Closing Indebtedness” shall be engaged within five days after an election mean the Closing Indebtedness Amount agreed to by either party to submit its objections to Buyer and Seller and/or resulting from the Neutral Auditor, and each party agrees to execute, if requested by the Neutral Auditor, a reasonable engagement letter. All fees and expenses decision of the Neutral Auditor Accounting Arbitrator, or if Seller fails to deliver written notice of disagreement to Buyer within the thirty (30) day period provided in Section 2.05(c). The fees, expenses and costs of the Accounting Arbitrator shall be borne equally by Seller and Buyer. The Neutral Auditor shall act as an arbitrator to determine, based solely on the written presentations by Seller and Buyer made within 15 days of the Neutral Auditor's engagement or such other reasonable period of time to which the parties agree, and not by independent review, only those issues still in dispute. The Neutral Auditor's determination shall be made within 30 days after Seller's and Buyer's written presentations have been made, shall be set forth in a written statement delivered to Seller and Buyer and shall be final, binding, conclusive and nonappealable. The term "FINAL CLOSING STATEMENT" shall mean the definitive Closing Statement agreed to by Seller and Buyer in accordance with Section 1.4(b) or the definitive Closing Statement resulting from the determination made by the Neutral Auditor in accordance with this Section 1.4(c) (in addition to those items theretofore agreed to by Seller and Buyer)Seller.
Appears in 1 contract
Samples: Limited Liability Company Interest Purchase Agreement (Quanex Building Products CORP)
Purchase Price Adjustment. (a) As soon as practicable but not later Not less than 60 three (3) Business Days prior to the Closing Date, Seller shall deliver a notice (the “Purchase Price Notice”) to Purchaser which sets forth in reasonable detail (i) the Seller’s good faith estimate of the Liability Adjustment (the “Estimated Liability Adjustment”) and the Liability Difference (the “Estimated Liability Difference”) and (ii) based thereon, the calculation of the Purchase Price.
(b) Within sixty (60) days following after the Closing Date, Seller shall prepare and deliver (by same day or next day delivery) to Buyer Purchaser a working capital statement setting forth its determination of the Company as of Liability Adjustment and the close of business on the Closing Date Liability Difference (the "CLOSING STATEMENT") setting “Initial Liability Statement”), which statement shall set forth the current assets minus the current liabilities of the Company (the "WORKING CAPITAL") on in reasonable detail the basis described in Annex Bfor such determinations. During the thirty (30) days after receipt of such statement, accompanied by a report from Arthur Andersen LLP; PROVIDED, HOWEVER, if the transactions contemplaxxx xx Xxxxxxx 4.11(a) or (b) occur, the Closing Statement Purchaser and its representatives will be prepared as if the Com pany did not own the Dermablend Business or the National Cosmetics Business and the Iman Business as of the Closing Date, as the case may be; PROVIDED FURTHER that if Buyer retains the Dermablend Business and, pursuant permitted to Section 4.11(b), sells the National Cosmetics Business and the Iman Business, the Dermablend Business will also include the net accounts receivable (other than the Designated Receivables (as defined in Section 4.11)), bank overdraft, accounts payable and accrued expenses related review Seller’s working papers relating to the National Cosmetics Business and the Iman Business. Seller and its authorized representatives shall have reasonable access to all relevant books and records and employees of the Company following the Closing Date to the extent required to complete preparation of the Closing Statement, including, without limitation, preparation of any financial reports or schedules needed to complete the Closing Statement. Seller and Buyer shall split equally the cost of preparing and delivering the Closing Initial Liability Statement.
(bc) After receipt Purchaser shall notify Seller in writing (the “Notice of the Closing Statement, Buyer shall have 15 Disagreement”) within thirty (30) days to review it. Buyer and its authorized representatives shall have reasonable access to Seller's accountants to the extent required to complete their review of the Closing Statement, including, without limitation, the accountants' work papers used in preparation thereof. Unless Buyer delivers written notice to Seller on or prior to the 15th day after receipt of the Closing Initial Liability Statement specifying if Purchaser disagrees with Seller’s calculation of the Liability Adjustment or the Liability Difference, which Notice of Disagreement shall set forth in reasonable detail its objections to the Closing basis for such dispute and the U.S. dollar amounts involved and Purchaser’s good faith estimate of the Liability Adjustment or the Liability Difference. If no Notice of Disagreement is received by Seller within such thirty (30) day period, then the Initial Liability Statement on the grounds that the Closing Statement (i) was not prepared in accordance with this Section 1.4 or (ii) contained arithmetic errors, the parties shall be deemed to have been accepted by Purchaser, shall become final and agreed binding upon the parties and shall be the Final Liability Statement.
(d) During the twenty (20) Business Days immediately following the delivery of a Notice of Disagreement, Seller and Purchaser shall seek in good faith to resolve any differences which they may have with respect to any matter specified in the Notice of Disagreement. If at the end of such twenty (20) Business Day period Seller and Purchaser have been unable to agree upon a Final Liability Statement, Seller and Purchaser shall submit to the Closing Independent Accounting Firm for review and resolution any and all matters which remain in dispute with respect to the Notice of Disagreement. The Independent Accounting Firm shall use commercially practicable efforts to make a final determination, which shall be binding on the parties hereto, of the Liability Adjustment and the Liability Difference within twenty (20) Business Days after any such referral, and such final determination shall be the Final Liability Statement. If Buyer so notifies Seller This Section is an agreement to arbitrate as such is defined in Chapter 38 of the Nevada Revised Statutes; provided, however, that: (a) Sections 38.075, 38.085, 38.095 and 38.145(1)(d) of such an objection Chapter are hereby waived; and (b) the time periods contained in Sections 38.145(2) and 38.155(1) of such Chapter are hereby shortened to thirty (30) days. The arbitration is to be performed in Reno, Nevada. Purchaser and Seller each consent to the Closing Statementprocedure herein set forth and waive any rights (including any right to a hearing, representation by attorney at such hearing, or any rights with respect to witnesses, cross-examination, subpoenas and depositions) they may have under conflicting provisions of the Nevada Uniform Arbitration Act, Nevada Revised Statutes Subsection 38.015 et seq., as now or hereafter in effect. The Parties agree that judgment may be entered upon the decision of the Independent Accounting Firm. If the amount in dispute is less than FIFTY THOUSAND AND NO/100 DOLLARS ($50,000.00), the parties shall within 15 days following agree to split the date of such notice (the "RESOLUTION PERIOD") attempt to resolve their differencesdifference and not go through arbitration.
(ce) At the conclusion The cost of the Resolution Period, any amounts remaining in dispute shall, at the election of either party, be submitted to Price Waterhouse (the "NEUTRAL AUDITOR"). The Neutral Auditor shall be engaged within five days after an election by either party to submit its objections to the Neutral Auditor, Independent Accounting Firm’s review and each party agrees to execute, if requested by the Neutral Auditor, a reasonable engagement letter. All fees and expenses of the Neutral Auditor shall be borne equally by Seller and Buyer. The Neutral Auditor shall act as an arbitrator to determine, based solely on the written presentations by Seller and Buyer made within 15 days of the Neutral Auditor's engagement or such other reasonable period of time to which the parties agree, and not by independent review, only those issues still in dispute. The Neutral Auditor's determination shall be made within 30 days after Seller's paid by the party which has determined an amount of the sum of the Liability Adjustment and Buyer's written presentations have been madethe Liability Difference that is the greatest amount different from the amount of such sum on the Final Liability Statement. During the twenty (20) Business Day review by the Independent Accounting Firm, shall Purchaser and Seller will each make available to the Independent Accounting Firm interviews with such individuals and such information, books and records as may be reasonably required by the Independent Accounting Firm to make its final determination.
(i) If the Liability Adjustment (as set forth in a written statement delivered the Final Liability Statement) exceeds the Estimated Liability Adjustment, then Seller or Trust, jointly and severally, shall pay to Purchaser an amount equal to such excess or (ii) if the Estimated Liability Adjustment exceeds the Liability Adjustment (as set forth in the Final Liability Statement), then Purchaser shall pay to Seller an amount equal to such excess, in either case within five (5) Business Days after the Final Liability Statement becomes final and Buyer and binding on the parties hereto. If the Liability Adjustment (as set forth in the Final Liability Statement) is equal to the Estimated Liability Adjustment, then neither Purchaser nor Seller shall be final, binding, conclusive and nonappealable. The term "FINAL CLOSING STATEMENT" shall mean owe any amount to the definitive Closing Statement agreed other party pursuant to by Seller and Buyer in accordance with Section 1.4(b) or the definitive Closing Statement resulting from the determination made by the Neutral Auditor in accordance with this Section 1.4(c) (in addition to those items theretofore agreed to by Seller and Buyer4.4(f).
Appears in 1 contract
Samples: Asset Purchase Agreement (Jacobs Entertainment Inc)
Purchase Price Adjustment. (a) As soon promptly as practicable but not later than 60 and in any event within 90 days following after the Closing Date, Seller Parent shall prepare and deliver to Buyer Seller Representative a working capital statement (the “Closing Statement”) setting forth in reasonable detail its good faith calculation of (i) the Net Working Capital (calculated without reference to the Delayed Consent Subsidiaries), (ii) the Closing Indebtedness, (iii) the Transaction Expenses, (iv) the Pipeline Acquisition Costs, (v) the Cash Amount and (vi) the resulting calculation of the Company as Purchase Price.
(b) Seller Representative shall have 45 days following delivery of the close of business Closing Statement to review and either accept or dispute the Closing Statement and the calculations set forth therein. If Seller Representative disputes any amounts reflected on the Closing Date (the "CLOSING STATEMENT") Statement, it shall deliver to Parent a statement setting forth its objections thereto, setting forth, in reasonable detail, the current assets minus basis for such dispute, the current liabilities dollar amounts involved and Seller Representative’s calculation of the Company (the "WORKING CAPITAL") on the basis described in Annex B, accompanied by a report from Arthur Andersen LLP; PROVIDED, HOWEVER, if the transactions contemplaxxx xx Xxxxxxx 4.11(a) or (b) occur, adjustments to the Closing Statement will that Seller Representative believes should be prepared as if the Com pany did not own the Dermablend Business or the National Cosmetics Business and the Iman Business as made, within 45 days of delivery of the Closing DateStatement to Seller Representative (such written notice of objection, the “Objection Statement”). If an Objection Statement is not delivered to Parent within the time period required by the preceding sentence, then the Closing Statement (as delivered by Parent to Seller Representative), as modified to include any changes agreed to by Seller Representative and Parent, shall be final, binding and non-appealable by the parties hereto.
(c) If Seller Representative timely delivers an Objection Statement to Parent, Seller Representative and Parent shall negotiate in good faith to resolve any objections made by Seller Representative, but if they do not reach a final resolution within 30 days (or such longer period as may be agreed by Seller Representative and Parent) after the delivery of the Objection Statement, Seller Representative and Parent shall submit the items remaining in dispute for final resolution to the Accountants for final arbitration. Promptly following the submission of the items in dispute to the Accountants, and in any event within ten Business Days following such submission, each of Parent and Seller Representative shall submit to the Accountants (and the other party) all documentary materials and analyses that Parent or Seller Representative, as the case may be; PROVIDED FURTHER that if Buyer retains the Dermablend Business and, pursuant believes to Section 4.11(b), sells the National Cosmetics Business and the Iman Business, the Dermablend Business will also include the net accounts receivable (other than the Designated Receivables (as defined in Section 4.11)), bank overdraft, accounts payable and accrued expenses related be relevant to the National Cosmetics Business and the Iman Business. Seller and its authorized representatives shall have reasonable access to all relevant books and records and employees a resolution of the Company following disputed items set forth in the Closing Date to the extent required to complete preparation of the Closing Statement, including, without limitation, preparation of any financial reports or schedules needed to complete the Closing Objection Statement. Seller and Buyer The Accountants shall split equally the cost render their determination of preparing and delivering the Closing Statement.
(b) After receipt of the Closing Statement, Buyer shall have 15 all disputed items submitted for resolution within 30 days to review it. Buyer and its authorized representatives shall have reasonable access to Seller's accountants to the extent required to complete their review of the Closing Statement, including, without limitation, the accountants' work papers used in preparation thereof. Unless Buyer delivers written notice to Seller on or prior to the 15th day after receipt of the Closing Statement specifying in reasonable detail its objections all submissions by Parent and Seller Representative to the Closing Statement on the grounds that the Closing Statement (i) was not prepared in accordance with this Section 1.4 or (ii) contained arithmetic errorsAccountants, the parties and such determination shall be deemed to have accepted final, binding and agreed to the Closing Statementnon-appealable absent bad faith or manifest error. If Buyer so notifies Seller of such an objection to the Closing Statement, the parties shall within 15 days following the date of such notice (the "RESOLUTION PERIOD") attempt to resolve their differences.
(c) At the conclusion of the Resolution Period, any amounts remaining in dispute The Accountants shall, at acting as experts in accounting and not as arbitrators, determine in a manner consistent with the election requirements of either party, be submitted to Price Waterhouse this Agreement (including the "NEUTRAL AUDITOR"Accounting Principles). The Neutral Auditor shall be engaged within five days after an election by either party to submit its objections to the Neutral Auditor, and each party agrees to execute, if requested by the Neutral Auditor, a reasonable engagement letter. All fees and expenses of the Neutral Auditor shall be borne equally by Seller and Buyer. The Neutral Auditor shall act as an arbitrator to determine, based solely on the written presentations and written submissions by Parent and Seller Representative (which presentations and Buyer submissions shall be made within to the Accountants no later than 15 days after the engagement of the Neutral Auditor's engagement or such other reasonable period of time to which the parties agreeAccountants), and not by independent review, only whether those issues still in dispute. The Neutral Auditor's determination shall be made within 30 days after Seller's and Buyer's written presentations have been made, shall be set forth in a written statement delivered to Seller and Buyer and shall be final, binding, conclusive and nonappealable. The term "FINAL CLOSING STATEMENT" shall mean the definitive Closing Statement agreed to items identified by Seller Representative on the Objection Statement that were submitted to the Accountants, and Buyer any resulting adjustments, were properly calculated in accordance with Section 1.4(b) the terms of this Agreement (including the Accounting Principles). In resolving any disputed item, the Accountants may not assign a value to any item greater than the greatest value for such item claimed by either party or less than the definitive Closing Statement resulting from smallest value for such item claimed by either party. Neither Parent nor Seller Representative shall engage in any ex parte communications with the determination made Accountants. Seller Representative and Parent shall promptly execute, if reasonably requested by the Neutral Auditor Accountants, a commercially reasonable engagement letter. The fees and expenses of the Accountants shall be allocated between the Surviving Company and Seller Representative (on behalf of the Security Holders, severally, and not jointly, in accordance with each Security Holder’s Pro Rata Share), so that each such party’s share of such fees and expenses shall be equal to the product of (A) the aggregate amount of such fees and expenses and (B) a fraction, the numerator of which is the amount in dispute that is ultimately resolved in the other party’s favor pursuant to this Section 2.15 (as finally determined by the Accountants) and the denominator of which is the total amount of the disputed items submitted to the Accountants.
(d) No later than five Business Days after the Purchase Price has been finally determined in accordance with this Section 1.4(c2.15, the parties agree to the following payments (if any):
(i) If the Purchase Price is greater than the Estimated Purchase Price, Parent shall pay the amount of such excess to Seller Representative (on behalf of the Security Holders for distribution to each such Security Holder in addition accordance with its Pro Rata Share thereof) and all funds in the Purchase Price Adjustment Escrow Account shall be released to those items theretofore agreed Seller Representative (on behalf of the Security Holders for distribution to each such Security Holder in accordance with its Pro Rata Share thereof).
(ii) If the Estimated Purchase Price is greater than the Purchase Price, (A) the amount of such excess (the “Purchase Price Overpayment”) shall be released to Parent from the Purchase Price Adjustment Escrow Account and (B) all remaining funds in the Purchase Price Adjustment Escrow Account shall be released to Seller Representative (on behalf of the Security Holders for distribution to each such Security Holder in accordance with its Pro Rata Share thereof). Except as provided in the next sentence, the payment of funds from the Purchase Price Adjustment Escrow Account in accordance with this Section 2.15(d)(ii) shall be Parent’s sole and exclusive remedy for any adjustments to the Purchase Price contemplated by this Section 2.15, and if the Purchase Price Overpayment would otherwise exceed the remaining funds at the time of such adjustments from the Purchase Price Adjustment Escrow Account, Parent and the Acquired Companies shall have no recourse against the Security Holders or their Affiliates for such excess. Notwithstanding anything to the contrary in this Agreement or any Ancillary Document, Parent may offset against any consideration payable to Sailor Newco under the Delayed Consent Subsidiary Purchase Agreements any amount by which the Purchase Price Overpayment exceeds the funds in the Purchase Price Adjustment Escrow Account.
(iii) If the Purchase Price is equal to the Estimated Purchase Price, all funds in the Purchase Price Adjustment Escrow Account shall be released to Seller Representative (on behalf of the Security Holders for distribution to each such Security Holder in accordance with its Pro Rata Share thereof).
(e) Any payment to be made pursuant to this Section 2.15 shall be made by wire transfer of immediately available funds to an account (or accounts) specified in writing by Seller Representative or Parent, as applicable. Promptly following final determination of the Purchase Price in accordance with this Section 2.15, Parent and BuyerSeller Representative hereby agree to deliver joint written instructions to the Escrow Agent to release from the Purchase Price Adjustment Escrow Account, in accordance with the Escrow Agreement, the funds to be delivered in accordance with Section 2.15(d). The parties acknowledge and agree that, with respect to any payments to be made by Seller Representative to the Security Holders pursuant to this Section 2.15, Seller Representative shall be entitled to rely on the instructions provided by the Security Holders, and any deliveries made by Seller Representative in accordance with such instructions based on each Security Holder’s Pro Rata Share will be deemed to have been made in accordance with this Agreement. Seller Representative shall have no obligations to make, or cause to be made, any distributions of the amounts described in this Section 2.15 to the Security Holders in excess of the funds actually received by Seller Representative from Parent or the Escrow Agent, as applicable, in accordance with the terms hereof.
Appears in 1 contract
Purchase Price Adjustment. (a) As soon as practicable but not later than 60 days following For the purposes of payments of the Purchase Price to be made on the Closing Date, Seller the parties will calculate Net Value utilizing the Company's balance sheet as of March 31, 1995 as set forth on Schedule 1.2.
1. The parties hereby agree that the Net Value is $1,159,228 and the aggregate Purchase Price for the purposes of Closing payments is $1,872,626. The Purchase Price will be finally determined based upon a Closing Date Balance Sheet (as hereinafter defined) and adjusted accordingly (the "Purchase Price Adjustment") in the same manner as set forth on Schedule 1.2.
1. Within thirty (30) days after Closing, Sellers shall prepare and deliver a Closing Date Balance Sheet to Buyer a working capital statement of the Company LMI as of the close of business on the Closing Date prepared in accordance with generally accepted accounting principles (the "CLOSING STATEMENTClosing Date Balance Sheet") setting forth the current assets minus the current liabilities of the Company (the "WORKING CAPITAL") on the basis described in Annex B, accompanied by and a report from Arthur Andersen LLP; PROVIDED, HOWEVER, if the transactions contemplaxxx xx Xxxxxxx 4.11(a) or (b) occur, the Closing Statement will be prepared as if the Com pany did not own the Dermablend Business or the National Cosmetics Business and the Iman Business as of the Closing Date, as the case may be; PROVIDED FURTHER that if Buyer retains the Dermablend Business and, pursuant to Section 4.11(b), sells the National Cosmetics Business and the Iman Business, the Dermablend Business will also include the net accounts receivable (other than the Designated Receivables (as defined in Section 4.11)), bank overdraft, accounts payable and accrued expenses related to the National Cosmetics Business and the Iman BusinessNet Value based thereon. Seller and its authorized representatives LMI shall have reasonable access the right to all relevant books and records and employees of the Company following audit the Closing Date to Balance Sheet and shall have thirty (30) days from the extent required to complete preparation date of the Closing Statement, including, without limitation, preparation of any financial reports or schedules needed to complete the Closing Statement. Seller and Buyer shall split equally the cost of preparing and delivering the Closing Statement.
(b) After receipt of the Closing Statement, Buyer shall have 15 days Date Balance Sheet within which to review it. Buyer and its authorized representatives shall have reasonable access to Seller's accountants to the extent required to complete their review notify Sellers of the Closing Statement, including, without limitation, the accountants' work papers used in preparation thereof. Unless Buyer delivers written notice to Seller on or prior to the 15th day after receipt of the Closing Statement specifying in reasonable detail its any objections to the Closing Statement on Date Balance Sheet or the grounds that the Closing Statement (i) was not prepared in accordance with this Section 1.4 or (ii) contained arithmetic errorsNet Value. If LMI fails to notify Sellers of any such objections, the parties Net Value shall be deemed to have accepted and agreed been finally determined. If LMI timely notifies Sellers of objections to the Closing StatementDate Balance Sheet or the Net Value, LMI and the Sellers will endeavor to resolve such objections. If Buyer so notifies Seller LMI and Sellers are unable to resolve such objections within fifteen (15) days, either party may submit the issue to arbitration under the rules of such an objection to the Closing StatementAmerican Arbitration Association, and any award thereunder shall be final and binding upon the parties shall within 15 days following the date of such notice (the "RESOLUTION PERIOD") attempt to resolve their differences.
(c) At the conclusion of the Resolution Period, any amounts remaining in dispute shall, at the election of either party, be submitted to Price Waterhouse (the "NEUTRAL AUDITOR"). The Neutral Auditor shall be engaged within five days after an election by either party to submit its objections to the Neutral Auditor, and each party agrees to execute, if requested by the Neutral Auditor, a reasonable engagement letter. All fees and expenses of the Neutral Auditor shall be borne equally by Seller and Buyer. The Neutral Auditor shall act as an arbitrator to determine, based solely on the written presentations by Seller and Buyer made within 15 days of the Neutral Auditor's engagement or such other reasonable period of time to which the parties agree, and not by independent review, only those issues still in dispute. The Neutral Auditor's determination shall be made within 30 days after Seller's and Buyer's written presentations have been made, shall be set forth in a written statement delivered to Seller and Buyer and shall be final, binding, conclusive and nonappealable. The term "FINAL CLOSING STATEMENT" shall mean the definitive Closing Statement agreed to by Seller and Buyer in accordance with Section 1.4(b) or 9.2 hereof. The Parties will share the definitive expense of such arbitration equally. Once the Net Value is finally determined, Sellers will promptly remit to LMI any overpayment if the parties determine that the Sellers were overpaid at Closing Statement resulting from and LMI shall promptly pay to Sellers any increase if the determination made parties determine that the Sellers were underpaid at Closing. Any downward adjustment in the Purchase Price shall be paid by Sellers in the Neutral Auditor first instance with the surrender of Preferred Stock at a rate of $3.00 per share. The portion of the Purchase Price escrowed at Closing in accordance with this Section 1.4(c) (in addition 1.3.1 shall be released pursuant to those items theretofore agreed to by Seller and Buyer)such Purchase Price Adjustment.
Appears in 1 contract
Purchase Price Adjustment. (ai) As soon as practicable but not later than 60 Within sixty (60) days following the Closing Date, Seller Buyer shall prepare and deliver to Buyer Seller a working capital statement of the Company as of the close of business on the Closing Date (the "CLOSING STATEMENT"“Closing Statement”) setting forth the current assets minus the current liabilities Buyer’s calculation (together with reasonable supporting detail of each such calculation) of the Company Closing Cash, Closing Net Working Capital and the resulting Final Purchase Price. The Closing Statement shall be prepared in accordance with the definitions in this Agreement. During the sixty (the "WORKING CAPITAL"60) on the basis described in Annex B, accompanied by a report from Arthur Andersen LLP; PROVIDED, HOWEVER, if the transactions contemplaxxx xx Xxxxxxx 4.11(a) or (b) occur, days immediately following Seller’s receipt of the Closing Statement will be prepared as if and any period of dispute thereafter with respect to such Closing Statement, Buyer shall, and shall cause the Com pany did not own Company and its Subsidiaries to, (a) assist Seller in the Dermablend Business or the National Cosmetics Business and the Iman Business as review of the Closing Date, as the case may be; PROVIDED FURTHER that if Buyer retains the Dermablend Business and, pursuant to Section 4.11(b), sells the National Cosmetics Business Statement and the Iman Business, the Dermablend Business will also include the net accounts receivable (other than the Designated Receivables (as defined in Section 4.11)), bank overdraft, accounts payable and accrued expenses related to the National Cosmetics Business and the Iman Business. provide Seller and its authorized representatives shall have Representatives with reasonable access during normal business hours to all relevant the books, records (including work papers, schedules, memoranda and other documents, and the right to make copies of such books and records records), supporting data, facilities and employees of the Company following the Closing Date to the extent required to complete preparation of the Closing Statement, including, without limitation, preparation of any financial reports or schedules needed to complete the Closing Statement. Seller and Buyer shall split equally the cost of preparing and delivering the Closing Statement.
(b) After receipt of the Closing Statement, Buyer shall have 15 days to review it. Buyer and its authorized representatives shall have reasonable access to Seller's accountants to the extent required to complete Subsidiaries for purposes of their review of the Closing Statement, includingand (b) cooperate with Seller and its Representatives in connection with such review, without limitation, including by providing on a timely basis material other information necessary or useful in connection with the accountants' work papers used in preparation thereof. Unless Buyer delivers written notice to Seller on or prior to the 15th day after receipt review of the Closing Statement specifying in reasonable detail its objections and access to the Company’s and its Subsidiaries’ accountants and advisors. The Closing Statement on (including the grounds Closing Cash, Closing Net Working Capital and Final Purchase Price set forth thereon) shall become final and binding upon the Parties sixty (60) days following Seller’s receipt thereof unless Seller gives written notice of its disagreement containing particulars of specific items objected to (a “Notice of Disagreement”) to Buyer prior to such date; provided that the Closing Statement shall alternatively become final and binding upon the Parties upon Seller’s delivery, prior to the expiration of such sixty (i60)-day period, of written notice to Buyer of its acceptance of the Closing Statement delivered by Buyer. Any Notice of Disagreement shall specify in reasonable detail the nature and amount of any disagreement so asserted.
(ii) was not prepared If a timely Notice of Disagreement is delivered by Seller, then the Closing Statement (as revised in accordance with this Section 1.4 or (ii) contained arithmetic errors2C(ii)), the parties shall be deemed to have accepted and agreed to the Closing Statement. If Buyer so notifies Seller Cash, Closing Net Working Capital and Final Purchase Price set forth thereon shall become final and binding upon the Parties on the earlier of such an objection to the Closing Statement, the parties shall within 15 days following (a) the date all matters specified in the Notice of such notice (the "RESOLUTION PERIOD") attempt to resolve their differences.
(c) At the conclusion of the Resolution Period, any amounts remaining Disagreement are finally resolved in dispute shall, at the election of either party, be submitted to Price Waterhouse (the "NEUTRAL AUDITOR"). The Neutral Auditor shall be engaged within five days after an election by either party to submit its objections to the Neutral Auditor, and each party agrees to execute, if requested by the Neutral Auditor, a reasonable engagement letter. All fees and expenses of the Neutral Auditor shall be borne equally by Seller and Buyer. The Neutral Auditor shall act as an arbitrator to determine, based solely on the written presentations writing by Seller and Buyer made within 15 days and (b) the date all matters specified in the Notice of the Neutral Auditor's engagement or such other reasonable period of time to which the parties agree, and Disagreement not by independent review, only those issues still resolved in dispute. The Neutral Auditor's determination shall be made within 30 days after Seller's and Buyer's written presentations have been made, shall be set forth in a written statement delivered to Seller and Buyer and shall be final, binding, conclusive and nonappealable. The term "FINAL CLOSING STATEMENT" shall mean the definitive Closing Statement agreed to writing by Seller and Buyer are finally resolved in accordance with Section 1.4(bwriting by a nationally recognized accounting, consulting or valuation firm (other than a so-called “Big Four” accounting firm) or the definitive Closing Statement resulting from the determination made by the Neutral Auditor in accordance with this Section 1.4(c) (in addition to those items theretofore agreed to mutually selected by Seller and Buyer).Buyer (such firm, the “Arbiter”, or absent such agreement then upon written notice to the other
Appears in 1 contract
Samples: Purchase and Sale Agreement (Talen Energy Supply, LLC)
Purchase Price Adjustment.
(a) As soon as practicable but not later than 60 days following On the Closing Date, Seller shall prepare and deliver to Buyer Purchaser a working capital statement (the “Closing Statement”) containing Seller’s final calculation of the Company as of the close of business on the Closing Date (the "CLOSING STATEMENT") setting forth the current assets minus the current liabilities of the Company (the "WORKING CAPITAL") on the basis described in Annex B, Inventory Value and shall be accompanied by a report from Arthur Andersen LLP; PROVIDED, HOWEVER, if the transactions contemplaxxx xx Xxxxxxx 4.11(a) or (b) occur, the with reasonably detailed documentation supporting Seller’s calculation thereof. The Closing Statement will be prepared in the form as if set forth in Schedule 2.7(a).
(b) The Purchaser will have a period of twenty (20) Business Days to review the Com pany did Closing Statement and all calculations set forth therein. Seller shall give Purchaser (upon reasonable advance notice and during normal business hours in a manner that does not own materially interfere with Seller’s business) reasonable access to the Dermablend Business or applicable personnel and books and records of Seller and its Affiliates as reasonably requested by Purchaser, as well as use commercially reasonable efforts to cause [***] to provide Purchaser reasonable access to the National Cosmetics Business premises of [***] and the Iman records kept by them of the Purchased Inventories, to reasonably enable Purchaser to fully review the Closing Statement and such access shall be provided in a timely manner to allow Purchaser to complete such review in such twenty (20) Business as Day period.
(c) The Closing Statement shall be conclusive of the amount of the Closing Date, as Date Inventory Value and shall be final and binding upon the case may be; PROVIDED FURTHER that if Buyer retains Parties unless on or before the Dermablend twentieth (20th) Business and, pursuant to Section 4.11(b), sells Day after the National Cosmetics Business and the Iman Business, the Dermablend Business will also include the net accounts receivable (other than the Designated Receivables (as defined in Section 4.11)), bank overdraft, accounts payable and accrued expenses related to the National Cosmetics Business and the Iman Business. Seller and its authorized representatives shall have reasonable access to all relevant books and records and employees of the Company following date on which the Closing Date Statement is delivered to the extent required Purchaser, Purchaser delivers to complete preparation Seller a notice of the Closing Statement, including, without limitation, preparation of objection (an “Objection Notice”) to any financial reports or schedules needed to complete matter stated in the Closing Statement. Seller and Buyer Any Objection Notice shall split equally the cost of preparing and delivering the Closing Statement.
(b) After receipt of the Closing Statementspecify, Buyer shall have 15 days to review it. Buyer and its authorized representatives shall have in reasonable access to Seller's accountants detail to the extent required Purchaser has the available information, those items or amounts as to complete their review of the Closing Statement, including, without limitation, the accountants' work papers used which Purchaser disputes in preparation thereof. Unless Buyer delivers written notice to Seller on or prior to the 15th day after receipt of the Closing Statement specifying in reasonable detail its objections to the Closing Statement on the grounds that the Closing Statement (i) was not prepared in accordance with this Section 1.4 or (ii) contained arithmetic errors, the parties good faith and Purchaser shall be deemed to have accepted agreed with all other items and agreed amounts contained in the Closing Statement and the calculations of the Closing Date Inventory Value set forth therein.
(d) If Purchaser fails to deliver an Objection Notice within such twenty (20) Business Day period, Purchaser shall be deemed to have waived its rights to contest the Closing Statement and the calculation of the Closing Date Inventory Value set forth therein shall be deemed to be final and binding upon the Parties (the “Final Inventory Value”) and such amount shall be used for the purposes of adjustment to the Closing StatementPurchase Price pursuant to Section 2.7(g).
(e) If Buyer so notifies Purchaser delivers an Objection Notice to Seller of on or before such twenty (20) Business Day period, then the Parties shall meet within ten (10) Business Days after Purchaser delivers an objection Objection Notice, by telephone or at a mutually agreeable location to discuss in good faith and attempt to reconcile their differences with respect to the amount of the Closing StatementDate Inventory Value that is being challenged by Purchaser (the “Challenged Amount(s)”). In the event the Parties are unable to reach agreement on the Challenged Amounts, either Party may at any time thereafter submit such remaining disagreements to the Independent Accountant.
(f) The Parties shall use commercially reasonable efforts to cause the Independent Accountant, once appointed, to resolve all remaining disagreements with respect to Challenged Amounts as soon as practicable, but in any event shall direct the Independent Accountant to render a determination within thirty (30) days after retention of the Independent Accountant. Each Party will be afforded the opportunity to present to the Independent Accountant any material such Party deems relevant to the determination. The Independent Accountant shall consider only those items and amounts in Purchaser’s and Seller’s respective calculations of the Challenged Amounts that are identified as being items and amounts to which Purchaser and Seller have been unable to agree. In resolving any disputed item, the parties shall within 15 days following Independent Accountant may not assign a value to any item greater than the date of greatest value for such notice (item claimed by either Party or less than the "RESOLUTION PERIOD") attempt to resolve their differences.
(c) At the conclusion smallest value for such item claimed by either Party. The Independent Accountant’s determination of the Resolution PeriodChallenged Amounts shall be based solely on written materials submitted by the Parties (i.e., any amounts remaining not on independent review) and on the definitions included in dispute shall, at the election of either party, be submitted to Price Waterhouse (the "NEUTRAL AUDITOR")this Agreement. The Neutral Auditor determination of the Independent Accountant shall be engaged within five days after an election by either party conclusive and binding upon the Parties and shall not be subject to submit its objections to appeal or further review and shall be deemed as the Neutral Auditor, and each party agrees to execute, if requested by the Neutral Auditor, a reasonable engagement letterFinal Inventory Value for all purposes hereunder. All fees The costs and expenses of the Neutral Auditor Independent Accountant in determining any Challenged Amounts shall be borne equally by Seller and Buyer. The Neutral Auditor shall act as an arbitrator to determinePurchaser, based solely on the written presentations by Seller one hand, and Buyer made within 15 days Seller, on the other hand.
(g) On the date of the Neutral Auditor's engagement or such other reasonable period binding determination of time the Final Inventory Value pursuant to which the parties agreeterms of this Section 2.7, and not by independent review, only those issues still in dispute. The Neutral Auditor's determination shall be made within 30 days after Seller's and Buyer's written presentations have been made, shall be if:
(i) the Final Inventory Value is equal to an amount that is less than the Closing Date Inventory Value set forth in a the Closing Statement (the aggregate total amount of the shortfall equal to the sum of (x) the Closing Date Inventory Value, minus (y) the Final Inventory Value, the “Inventory Shortfall Amount”), then Seller shall, within ten (10) Business Days of the binding determination of the Final Inventory Value, pay an amount in cash equal to the Inventory Shortfall Amount to Purchaser in immediately available funds by wire transfer to the account(s) specified in written statement delivered instructions provided by Purchaser to Seller; or
(ii) the Final Inventory Value is more than Closing Date Inventory Value set forth in the Closing Statement (the aggregate total amount of the excess equal to the sum of (x) the Final Inventory Value, minus (y) the Closing Date Inventory Value, the “Inventory Excess Amount”), then Purchaser shall, within ten (10) Business Days of the binding determination of the Final Inventory Value, pay an amount in cash equal to the Inventory Excess Amount to Seller and Buyer and shall be final, binding, conclusive and nonappealable. The term "FINAL CLOSING STATEMENT" shall mean in immediately available funds by wire transfer to the definitive Closing Statement agreed to account(s) specified in written instructions provided by Seller and Buyer to Purchaser.
(iii) notwithstanding anything to the contrary set forth above, in accordance with Section 1.4(b) or no event will the definitive Closing Statement resulting from the determination made by the Neutral Auditor in accordance with this Section 1.4(c) (in addition Final Inventory Value be deemed to those items theretofore agreed to by Seller and Buyer)exceed [***].
Appears in 1 contract
Purchase Price Adjustment.
(a) As soon as practicable but not later than 60 days following On the Closing Date, Seller shall prepare and deliver to Buyer Purchaser a working capital statement (the “Closing Statement”) containing Seller’s final calculation of the Company as of the close of business on the Closing Date (the "CLOSING STATEMENT") setting forth the current assets minus the current liabilities of the Company (the "WORKING CAPITAL") on the basis described in Annex B, Inventory Value and shall be accompanied by a report from Arthur Andersen LLP; PROVIDED, HOWEVER, if the transactions contemplaxxx xx Xxxxxxx 4.11(a) or (b) occur, the with reasonably detailed documentation supporting Seller’s calculation thereof. The Closing Statement will be prepared in the form as if set forth in Schedule 2.7(a).
(b) The Purchaser will have a period of twenty (20) Business Days to review the Com pany did Closing Statement and all calculations set forth therein. Seller shall give Purchaser (upon reasonable advance notice and during normal business hours in a manner that does not own materially interfere with Seller’s business) reasonable access to the Dermablend Business or applicable personnel and books and records of Seller and its Affiliates as reasonably requested by Purchaser, as well as use commercially reasonable efforts to cause [***] to provide Purchaser reasonable access to the National Cosmetics Business premises of [***] and the Iman records kept by them of the Purchased Inventories, to reasonably enable Purchaser to fully review the Closing Statement and such access shall be provided in a timely manner to allow Purchaser to complete such review in such twenty (20) Business as Day period.
(c) The Closing Statement shall be conclusive of the amount of the Closing Date, as Date Inventory Value and shall be final and binding upon the case may be; PROVIDED FURTHER that if Buyer retains Parties unless on or before the Dermablend twentieth (20th) Business and, pursuant to Section 4.11(b), sells Day after the National Cosmetics Business and the Iman Business, the Dermablend Business will also include the net accounts receivable (other than the Designated Receivables (as defined in Section 4.11)), bank overdraft, accounts payable and accrued expenses related to the National Cosmetics Business and the Iman Business. Seller and its authorized representatives shall have reasonable access to all relevant books and records and employees of the Company following date on which the Closing Date Statement is delivered to the extent required Purchaser, Purchaser delivers to complete preparation Seller a notice of the Closing Statement, including, without limitation, preparation of objection (an “Objection Notice”) to any financial reports or schedules needed to complete matter stated in the Closing Statement. Seller and Buyer Any Objection Notice shall split equally the cost of preparing and delivering the Closing Statement.
(b) After receipt of the Closing Statementspecify, Buyer shall have 15 days to review it. Buyer and its authorized representatives shall have in reasonable access to Seller's accountants detail to the extent required Purchaser has the available information, those items or amounts as to complete their review of the Closing Statement, including, without limitation, the accountants' work papers used which Purchaser disputes in preparation thereof. Unless Buyer delivers written notice to Seller on or prior to the 15th day after receipt of the Closing Statement specifying in reasonable detail its objections to the Closing Statement on the grounds that the Closing Statement (i) was not prepared in accordance with this Section 1.4 or (ii) contained arithmetic errors, the parties good faith and Purchaser shall be deemed to have accepted agreed with all other items and agreed amounts contained in the Closing Statement and the calculations of the Closing Date Inventory Value set forth therein.
(d) If Purchaser fails to deliver an Objection Notice within such twenty (20) Business Day period, Purchaser shall be deemed to have waived its rights to contest the Closing Statement and the calculation of the Closing Date Inventory Value set forth therein shall be deemed to be final and binding upon the Parties (the “Final Inventory Value”) and such amount shall be used for the purposes of adjustment to the Closing StatementPurchase Price pursuant to Section 2.7(g).
(e) If Buyer so notifies Purchaser delivers an Objection Notice to Seller of on or before such twenty (20) Business Day period, then the Parties shall meet within ten (10) Business Days after Purchaser delivers an objection Objection Notice, by telephone or at a mutually agreeable location to discuss in good faith and attempt to reconcile their differences with respect to the amount of the Closing StatementDate Inventory Value that is being challenged by Purchaser (the “Challenged Amount(s)”). In the event the Parties are unable to reach agreement on the Challenged Amounts, either Party may at any time thereafter submit such remaining disagreements to the Independent Accountant.
(f) The Parties shall use commercially reasonable efforts to cause the Independent Accountant, once appointed, to resolve all remaining disagreements with respect to Challenged Amounts as soon as practicable, but in any event shall direct the Independent Accountant to render a determination within thirty (30) days after retention of the Independent Accountant. Each Party will be afforded the opportunity to present to the Independent Accountant any material such Party deems relevant to the determination. The Independent Accountant shall consider only those items and amounts in Purchaser’s and Seller’s respective calculations of the Challenged Amounts that are identified as being items and amounts to which Purchaser and Seller have been unable to agree. In resolving any disputed item, the parties shall within 15 days following Independent Accountant may not assign a value to any item greater than the date of greatest value for such notice (item claimed by either Party or less than the "RESOLUTION PERIOD") attempt to resolve their differences.
(c) At the conclusion smallest value for such item claimed by either Party. The Independent Accountant’s determination of the Resolution PeriodChallenged Amounts shall be based solely on written materials submitted by the Parties (i.e., any amounts remaining not on independent review) and on the definitions included in dispute shall, at the election of either party, be submitted to Price Waterhouse (the "NEUTRAL AUDITOR")this Agreement. The Neutral Auditor determination of the Independent Accountant shall be engaged within five days after an election by either party conclusive and binding upon the Parties and shall not be subject to submit its objections to appeal or further review and shall be deemed as the Neutral Auditor, and each party agrees to execute, if requested by the Neutral Auditor, a reasonable engagement letterFinal Inventory Value for all purposes hereunder. All fees The costs and expenses of the Neutral Auditor Independent Accountant in determining any Challenged Amounts shall be borne equally by Seller and Buyer. The Neutral Auditor shall act as an arbitrator to determinePurchaser, based solely on the written presentations by Seller one hand, and Buyer made within 15 days Seller, on the other hand.
(g) On the date of the Neutral Auditor's engagement or such other reasonable period binding determination of time the Final Inventory Value pursuant to which the parties agreeterms of this Section 2.7, and not by independent review, only those issues still in dispute. The Neutral Auditor's determination shall be made within 30 days after Seller's and Buyer's written presentations have been made, shall be if:
(i) the Final Inventory Value is equal to an amount that is less than the Closing Date Inventory Value set forth in a the Closing Statement (the aggregate total amount of the shortfall equal to the sum of (x) the Closing Date Inventory Value, minus (y) the Final Inventory Value, the “Inventory Shortfall Amount”), then Seller shall, within ten (10) Business Days of the binding determination of the Final Inventory Value, pay an amount in cash equal to the Inventory Shortfall Amount to Purchaser in immediately available funds by wire transfer to the account(s) specified in written statement delivered instructions provided by Purchaser to Seller; or
(ii) the Final Inventory Value is more than Closing Date Inventory Value set forth in the Closing Statement (the aggregate total amount of the excess equal to the sum of (x) the Final Inventory Value, minus (y) the Closing Date Inventory Value, the “Inventory Excess Amount”), then Purchaser shall, within ten (10) Business Days of the binding determination of the Final Inventory Value, pay an amount in cash equal to the Inventory Excess Amount to Seller and Buyer and shall be final, binding, conclusive and nonappealable. The term "FINAL CLOSING STATEMENT" shall mean in immediately available funds by wire transfer to the definitive Closing Statement agreed to account(s) specified in written instructions provided by Seller and Buyer to Purchaser.
(iii) Notwithstanding anything to the contrary set forth above, in accordance with Section 1.4(b) or no event will the definitive Closing Statement resulting from the determination made by the Neutral Auditor in accordance with this Section 1.4(c) (in addition Final Inventory Value be deemed to those items theretofore agreed to by Seller and Buyer)exceed [***].
Appears in 1 contract
Purchase Price Adjustment. The Purchase Price shall be subject to adjustment following the Closing Date in the manner described below:
(a) As soon as reasonably practicable but not and in any event no later than 60 forty-five (45) days following after the Closing Date, Seller shall Buyer will prepare and deliver submit to Buyer Seller a working capital statement of the Company aggregate book value of the Purchased Assets based on Seller's books and records as of the close of business on the Closing Date prepared in accordance with GAAP, consistent with Seller's past practices (the "CLOSING STATEMENTInitial Closing Statement").
(b) setting forth the current assets minus the current liabilities Upon receipt of the Company Initial Closing Statement, Seller and its accountants shall be permitted during the succeeding thirty (30) day period to examine the accounting records and work papers prepared by Buyer or its accountants in connection with the preparation of the Initial Closing Statement. If Seller agrees to the Initial Closing Statement, it shall become the final closing statement (the "WORKING CAPITALFinal Closing Statement"). If Seller does not agree to the Initial Closing Statement, it shall within thirty (30) days after delivery of the Initial Closing Statement by Buyer, prepare and deliver to Buyer a list of disputed adjustments (the "Disputed Adjustments") to the Initial Closing Statement. Buyer and Seller shall use their best efforts to resolve the Disputed Adjustments. If Buyer and Seller are able to reach an agreement on the basis described in Annex BDisputed Adjustments, accompanied the Initial Closing Statement shall be amended to reflect such agreement and shall become the Final Closing Statement.
(c) If Buyer and Seller are unable to reach an agreement on the Disputed Adjustments within thirty (30) days after receipt by Buyer of the Disputed Adjustments, then the Disputed Adjustments shall be resolved by a report from Arthur Andersen LLP; PROVIDEDnationally-recognized firm of certified public accountants mutually acceptable to Buyer and Seller (the "Accounting Referee". The parties shall use their Reasonable Efforts to cause the Accounting Referee to promptly review the Disputed Adjustments and determine the final value of each of the Disputed Adjustments. In making such determination, HOWEVERthe Accounting Referee shall consider only the items or amounts in dispute (and any other items or amounts relating thereto), and the determination of each Disputed Adjustment's value, as so computed, shall not, in any event, be less than zero or greater than the amount of the Disputed Adjustments. Such determination shall be made within thirty (30) days after the date on which the Accounting Referee receives notice of the Disputed Adjustments. The Initial Closing Statement shall then be amended to reflect the determination of the final value of each of the Disputed Adjustments and shall become the Final Closing Statement. The fees, costs and expenses of the Accounting Referee in conducting such review shall be shared equally by MEI and Seller. The Final Closing Statement shall be deemed to be and shall be conclusive and binding on the parties to this Agreement for purposes of determining any adjustment of the Purchase Price pursuant to this Section 2.2.
(d) Within five (5) business days after the determination of the Final Closing Statement, Seller shall promptly pay to Buyer the amount, if any, by which the transactions contemplaxxx xx Xxxxxxx 4.11(a) or (b) occur, aggregate book value of the Purchased Assets reflected on the Final Closing Statement will be prepared as if the Com pany did not own the Dermablend Business or the National Cosmetics Business and the Iman Business as of the Closing Dateis less than $1,785,000, as the case may be; PROVIDED FURTHER that if Buyer retains the Dermablend Business and, pursuant to Section 4.11(b), sells the National Cosmetics Business and the Iman Business, the Dermablend Business will also include the net accounts receivable (other than the Designated Receivables (as defined in Section 4.11)), bank overdraft, accounts payable and accrued expenses related to the National Cosmetics Business and the Iman Business. Seller and its authorized representatives shall have reasonable access to all relevant books and records and employees of the Company following together with interest on such amount from the Closing Date to the extent required to complete preparation of the Closing Statement, including, without limitation, preparation of any financial reports or schedules needed to complete the Closing Statement. Seller and Buyer shall split equally the cost of preparing and delivering the Closing Statement.
(b) After receipt of the Closing Statement, Buyer shall have 15 days to review it. Buyer and its authorized representatives shall have reasonable access to Seller's accountants to the extent required to complete their review of the Closing Statement, including, without limitation, the accountants' work papers used in preparation thereof. Unless Buyer delivers written notice to Seller on or prior to the 15th day after receipt of the Closing Statement specifying in reasonable detail its objections to the Closing Statement on the grounds that the Closing Statement (i) was not prepared in accordance with this Section 1.4 or (ii) contained arithmetic errors, the parties shall be deemed to have accepted and agreed to the Closing Statement. If Buyer so notifies Seller of date such an objection to the Closing Statement, the parties shall within 15 days following the date of such notice (the "RESOLUTION PERIOD") attempt to resolve their differences.
(c) At the conclusion of the Resolution Period, any amounts remaining in dispute shall, payment is made at the election rate of either party, be submitted to Price Waterhouse nine percent (the "NEUTRAL AUDITOR"). The Neutral Auditor shall be engaged within five days after an election by either party to submit its objections to the Neutral Auditor, and each party agrees to execute, if requested by the Neutral Auditor, a reasonable engagement letter. All fees and expenses of the Neutral Auditor shall be borne equally by Seller and Buyer. The Neutral Auditor shall act as an arbitrator to determine, based solely on the written presentations by Seller and Buyer made within 15 days of the Neutral Auditor's engagement or such other reasonable period of time to which the parties agree, and not by independent review, only those issues still in dispute. The Neutral Auditor's determination shall be made within 30 days after Seller's and Buyer's written presentations have been made, shall be set forth in a written statement delivered to Seller and Buyer and shall be final, binding, conclusive and nonappealable. The term "FINAL CLOSING STATEMENT" shall mean the definitive Closing Statement agreed to by Seller and Buyer in accordance with Section 1.4(b9.0%) or the definitive Closing Statement resulting from the determination made by the Neutral Auditor in accordance with this Section 1.4(c) (in addition to those items theretofore agreed to by Seller and Buyer)per annum.
Appears in 1 contract
Purchase Price Adjustment. In the event that Net Working Capital on the Audited Balance Sheet is less than $1.5 million, the Purchase Price will be reduced on a dollar-for-dollar basis by the amount by which Net Working Capital on the Audited Balance Sheet is less than $1.5 million. For the purposes of this Section 1.8, "Net Working Capital" shall mean (ai) As soon as practicable but not later than 60 days following total current assets plus (ii) the Closing Datenet amount of all debt repayments made by Bekins after September 30, Seller shall prepare 1997 to and deliver to Buyer a working capital statement of the Company as of the close of business on including the Closing Date (excluding the portion of such net repayments in excess of $.7 million) plus (iii) $50,000 less (iv) current liabilities other than current debt (which shall include a reserve of $100,000 in respect of the Las Vegas labor claim referenced in Schedule 2.12 hereto), as such current assets and liabilities are reflected on the Audited Balance Sheet. The net amount of debt repayments is the total amount of debt repayments during the specified period less the total amount of borrowings during the period by Bekins under its revolving credit facility with NationsBank N.A. ("CLOSING STATEMENTNationsBank") as reflected on Bekins' books and records. In the event Sellers disagree with the calculation of Net Working Capital on the Audited Balance Sheet, Sellers shall, within thirty (30) days of receipt of the Escrow Shares, so object to Buyer in writing, setting forth the current assets minus the current liabilities a specific description of the Company nature of the objection and the number of Escrow Shares Sellers believe should have been released to them. For purposes of the preceding sentence, Xxxxx X. Xxxxx XX may give such notice on behalf of each Seller. If no objection is received by Buyer on or before the last day of such thirty (30) day period, then the "WORKING CAPITAL"number of Escrow Shares calculated by Buyer shall be final. If an objection has been made and Buyer and Sellers are unable to resolve all of their disagreements with respect thereto within fifteen (15) on the basis described in Annex B, accompanied by a report from Arthur Andersen LLP; PROVIDED, HOWEVER, if the transactions contemplaxxx xx Xxxxxxx 4.11(a) or (b) occurdays following delivery of Sellers' objection, the Closing Statement will dispute shall be prepared submitted to arbitration as if the Com pany did not own the Dermablend Business provided in Section 9.11 hereof. The arbitrator shall be instructed to deliver his or the National Cosmetics Business and the Iman Business as her determination of the Closing Date, as the case may be; PROVIDED FURTHER that if Buyer retains the Dermablend Business and, pursuant to Section 4.11(b), sells the National Cosmetics Business and the Iman Business, the Dermablend Business will also include the net accounts receivable (other than the Designated Receivables (as defined in Section 4.11)), bank overdraft, accounts payable and accrued expenses related dispute to the National Cosmetics Business parties no later than thirty (30) days after the arbitration hearing. Buyer shall provide to Sellers and the Iman Business. Seller and its authorized representatives shall have reasonable their accountants full access to all relevant books and books, records and employees of the Company following the Closing Date to the extent required to complete preparation of the Closing Statement, including, without limitation, preparation of any financial reports or schedules needed to complete the Closing Statement. Seller and Buyer shall split equally the cost of preparing and delivering the Closing Statement.
(b) After receipt of the Closing Statement, Buyer shall have 15 days to review it. Buyer and its authorized representatives shall have reasonable access to Seller's accountants to the extent required to complete their review of the Closing Statement, including, without limitation, the accountants' work papers used (including working papers of Xxxxxx Xxxxxxxx LLP) utilized in preparation thereof. Unless Buyer delivers written notice calculating the number of Escrow Shares to Seller on or prior to the 15th day after receipt of the Closing Statement specifying in reasonable detail its objections to the Closing Statement on the grounds that the Closing Statement (i) was not prepared in accordance with this Section 1.4 or (ii) contained arithmetic errors, the parties shall be deemed to have accepted and agreed to the Closing Statement. If Buyer so notifies Seller of such an objection to the Closing Statement, the parties shall within 15 days following the date of such notice (the "RESOLUTION PERIOD") attempt to resolve their differences.
(c) At the conclusion of the Resolution Period, any amounts remaining in dispute shall, at the election of either party, be submitted to Price Waterhouse (the "NEUTRAL AUDITOR"). The Neutral Auditor shall be engaged within five days after an election by either party to submit its objections to the Neutral Auditor, and each party agrees to execute, if requested by the Neutral Auditor, a reasonable engagement letter. All fees and expenses of the Neutral Auditor shall be borne equally by Seller and Buyer. The Neutral Auditor shall act as an arbitrator to determine, based solely on the written presentations by Seller and Buyer made within 15 days of the Neutral Auditor's engagement or such other reasonable period of time to which the parties agree, and not by independent review, only those issues still in dispute. The Neutral Auditor's determination shall be made within 30 days after Seller's and Buyer's written presentations have been made, shall be set forth in a written statement delivered to Seller and Buyer and shall be final, binding, conclusive and nonappealable. The term "FINAL CLOSING STATEMENT" shall mean the definitive Closing Statement agreed to by Seller and Buyer in accordance with Section 1.4(b) or the definitive Closing Statement resulting Sellers from the determination made by the Neutral Auditor in accordance with this Section 1.4(c) (in addition to those items theretofore agreed to by Seller and Buyer)escrow.
Appears in 1 contract
Samples: Merger Agreement (Hospitality Worldwide Services Inc)
Purchase Price Adjustment. (a) As soon as practicable but not later than 60 Within sixty (60) calendar days following after the Closing Date, Seller Purchaser shall prepare and deliver to Buyer Seller a working capital written statement of (the Company as of the close of business on “Closing Statement”) including the Closing Date (the "CLOSING STATEMENT") Balance Sheet and setting forth Purchaser’s calculation of (i) the current assets minus Adjustment Amount (including the current liabilities of components thereof) and the final Purchase Price calculated in accordance with Section 2.02(a), (ii) the Closing Company (Repayment Amount, which calculations shall be consistent with the "WORKING CAPITAL") on the basis principles and methodologies described in Annex B, accompanied by a report from Arthur Andersen LLP; PROVIDED, HOWEVER, if Exhibit A and (iii) the transactions contemplaxxx xx Xxxxxxx 4.11(a) or Shortfall Amount.
(b) occur, Seller shall have forty-five (45) calendar days following receipt of the Closing Statement will be prepared as if to review the Com pany did not own preparation and confirm the Dermablend Business or the National Cosmetics Business and the Iman Business as accuracy of the Closing DateStatement. Upon reasonable advance notice, as the case may be; PROVIDED FURTHER that if Buyer retains the Dermablend Business andPurchaser shall give, pursuant and shall cause its Representatives to Section 4.11(b)give, sells the National Cosmetics Business and the Iman Business, the Dermablend Business will also include the net accounts receivable (other than the Designated Receivables (as defined in Section 4.11)), bank overdraft, accounts payable and accrued expenses related to the National Cosmetics Business and the Iman Business. Seller and its authorized representatives shall have accountants reasonable access access, during normal business hours, to such books, records (including all relevant books documents, schedules and records and employees of workpapers used by Purchaser in the Company following the Closing Date to the extent required to complete preparation of the Closing Statement, including, without limitation, ) and personnel of the Company and its Subsidiaries and their respective accountants as may be reasonably necessary to enable Seller to review the preparation and confirm the accuracy of any financial reports or schedules needed to complete the Closing StatementStatement and throughout the periods during which any disputes arise under this Section 2.04(b) are being resolved. Seller and Buyer shall split equally may, on or prior to the cost of preparing and delivering the Closing Statement.
(b) After 45th calendar day following receipt of the Closing Statement, Buyer deliver a notice to Purchaser setting forth, in reasonable detail, each disputed item or amount and the basis for Seller’s disagreement therewith, together with supporting calculations (the “Dispute Notice”). Matters as to which Seller may submit disagreements (and the Dispute Notice) shall have 15 days be limited to review itwhether the Closing Statement delivered by Purchaser was accurate and whether the Adjustment Amount, the Closing Company Repayment Amount or the Closing Date Shortfall Amount was properly calculated on the basis set forth herein and Seller shall not be entitled to submit disagreements on any other basis. Buyer Matters included in the calculations in the Closing Statement to which Seller does not object in the Dispute Notice shall be deemed accepted by Seller and its authorized representatives shall have reasonable access not be subject to Seller's accountants further dispute or review. If no Dispute Notice is received by Purchaser in relation to the extent required Closing Statement on or prior to complete their review the 45th calendar day following Seller’s receipt of the Closing Statement, including, without limitation, the accountants' work papers used in preparation thereof. Unless Buyer delivers written notice Closing Statement prepared by Purchaser and delivered to Seller shall become the final Closing Statement.
(c) If Seller delivers to Purchaser a Dispute Notice on or prior to the 15th 45th calendar day following Seller’s receipt of the Closing Statement, then Purchaser and Seller shall negotiate in good faith to resolve any disputes in such Dispute Notice. If Purchaser and Seller agree on all disputes in such Dispute Notice, then the Closing Statement, as modified by such agreement of Seller and Purchaser, shall be used to determine the payments pursuant to paragraphs (f), (g) and (h) of this Section 2.04. If Purchaser and Seller are unable to resolve any disagreement within fifteen (15) calendar days after delivery of a Dispute Notice, Purchaser and Seller shall jointly select a partner at a mutually agreeable accounting firm to resolve such disagreement. If Purchaser and Seller are unable to reach agreement on the identity of such a partner within ten (10) calendar days after the expiration of such 15-day period, either Party may request that a partner at a nationally recognized accounting firm be appointed by the American Arbitration Association. The individual so selected shall be referred to herein as the “Independent Arbiter.” The Parties shall instruct the Independent Arbiter to consider only those items and amounts set forth in the Closing Statement as to which Purchaser and Seller have not resolved their disagreement.
(d) Purchaser and Seller shall cooperate with one another and the Independent Arbiter to resolve the issues set forth in the Dispute Notice no later than fifteen (15) calendar days following the date of the Independent Arbiter’s retention so that the Independent Arbiter may deliver to Seller and Purchaser a report (the “Adjustment Report”) setting forth the adjustments, if any, that should be made to the Adjustment Amount, the Closing Company Repayment Amount and/or the Shortfall Amount. With respect to each disputed account, such determination, if not in accordance with the position of either Seller or Purchaser, shall not be in excess of the higher, nor less than the lower, of the amounts advocated by Purchaser in the Closing Statement or Seller in the Dispute Notice with respect to such disputed account. For the avoidance of doubt, the Independent Arbiter shall not review any accounts or make any determination with respect to any matter other than those matters specifically set forth in the Dispute Notice that remain in dispute. The fees, expenses and costs of the Independent Arbiter for the services described herein with respect to the Adjustment Amount shall be shared equally by the Parties. During the review by the Independent Arbiter, the Parties shall each make available to the Independent Arbiter such individuals and such information, books, records and work papers, as may be reasonably required by the Independent Arbiter to fulfill its obligations under this Section 2.04(d). The Closing Statement, as modified by the Adjustment Report, shall become the final Closing Statement and shall be used to determine the payments pursuant to paragraphs (f), (g) and (h) of this Section 2.04. The Adjustment Report shall be final and binding upon Purchaser and Seller, and shall be deemed a final arbitration award that is enforceable in any court having jurisdiction. For the avoidance of doubt, the Adjustment Report shall be nonappealable and incontestable and not subject to collateral attack for any reason (other than manifest error).
(e) Effective upon the end of the 45-day period following Seller’s receipt of the Closing Statement specifying (if a timely Dispute Notice is not delivered), or upon the resolution of all matters set forth in reasonable detail its objections to the Dispute Notice by agreement of the Parties hereto or by the issuance of the Adjustment Report (if a timely Dispute Notice is delivered and the Parties do not resolve the matters set forth therein) (the “Resolution Date”), the Closing Statement on shall be adjusted (as described above) to the grounds that extent necessary to reflect the Closing Statement final resolution of any disputed items in accordance with this Agreement.
(if) was not prepared If the Purchase Price as finally determined in accordance with this Section 1.4 2.04 is (i) greater than the Closing Payment, Purchaser shall pay to Seller an amount equal to such difference, or (ii) contained arithmetic errors, the parties shall be deemed to have accepted and agreed to less than the Closing Statement. If Buyer so notifies Payment, Seller shall pay to Purchaser an amount equal to such difference, in either case, by wire transfer, within three (3) Business Days after the Resolution Date, of immediately available funds to an account designated by the Party receiving payment, plus interest on such an objection to amount accrued from the Closing Statement, the parties shall within 15 days following Date to the date of such notice (the "RESOLUTION PERIOD") attempt to resolve their differences.
(c) At the conclusion of the Resolution Period, any amounts remaining in dispute shall, payment at the election of either partyprime rate applicable from time to time as announced by Citibank, be submitted to Price Waterhouse (the "NEUTRAL AUDITOR"). The Neutral Auditor N.A. Such interest shall be engaged within five calculated daily on the basis of a 365-day calendar year and the actual number of days after an election by either party to submit its objections to elapsed. For the Neutral Auditor, and each party agrees to executeavoidance of doubt, if requested by the Neutral Auditor, a reasonable engagement letter. All fees and expenses of difference between the Neutral Auditor shall be borne equally by Seller and Buyer. The Neutral Auditor shall act Purchase Price as an arbitrator to determine, based solely on the written presentations by Seller and Buyer made within 15 days of the Neutral Auditor's engagement or such other reasonable period of time to which the parties agree, and not by independent review, only those issues still in dispute. The Neutral Auditor's determination shall be made within 30 days after Seller's and Buyer's written presentations have been made, shall be set forth in a written statement delivered to Seller and Buyer and shall be final, binding, conclusive and nonappealable. The term "FINAL CLOSING STATEMENT" shall mean the definitive Closing Statement agreed to by Seller and Buyer in accordance with Section 1.4(b) or the definitive Closing Statement resulting from the determination made by the Neutral Auditor finally determined in accordance with this Section 1.4(c) (in addition 2.04 and the Closing Payment is equal to those items theretofore agreed $0.00, no payment shall be made by either Party pursuant to by Seller and Buyerthis Section 2.04(f).
(g) If the Closing Company Repayment Amount as finally determined in accordance with this Section 2.04 is (i) greater than the Estimated Closing Company Repayment Amount, Purchaser shall cause the Company to pay to Seller (or its designee) an amount equal to such difference, or (ii) less than the Estimated Closing Company Repayment Amount, Seller shall (or shall cause its relevant designee to) pay to the Company an amount equal to such difference, in either case, by wire transfer, within three (3) Business Days after the Resolution Date, of immediately available funds to an account designated by the party receiving payment, plus interest on such amount accrued from the Closing Date to the date of payment at the prime rate applicable from time to time as announced by Citibank, N.A. Such interest shall be calculated daily on the basis of a 365-day calendar year and the actual number of days elapsed. For the avoidance of doubt, if the difference between the Closing Company Repayment Amount as finally determined in accordance with this Section 2.04 and the Estimated Closing Company Repayment Amount is equal to $0.00, no payment shall be made by either Party pursuant to this Section 2.04(g).
(h) If the Shortfall Amount as finally determined in accordance with this Section 2.04 is (i) greater than the Estimated Shortfall Amount, Seller shall (or shall cause its relevant designee to) pay to Purchaser an amount equal to such difference, or (ii) less than the Estimated Shortfall Amount, Purchaser shall cause the Company to pay to Seller (or its designee) an amount equal to such difference, in either case, by wire transfer, within three (3) Business Days after the Resolution Date, of immediately available funds to an account designated by the party receiving payment, plus interest on such amount accrued from the Closing Date to the date of payment at the prime rate applicable from time to time as announced by Citibank, N.A. Such interest shall be calculated daily on the basis of a 365-day calendar year and the actual number of days elapsed. For the avoidance of doubt, if the difference between the Shortfall Amount as finally determined in accordance with this Section 2.04 and the Estimated Shortfall Amount is equal to $0.00, no payment shall be made by either Party pursuant to this Section 2.04(h).
Appears in 1 contract
Purchase Price Adjustment. (a) As soon as practicable reasonably practical after the Closing, but not later in no event more than 60 ninety (90) days following after the Closing Date, Seller HandHeld shall prepare and deliver to Buyer a working capital statement consolidated balance sheet of the Company Putfile as of the close of business on the Closing Date (the "CLOSING STATEMENT"“Closing Date Balance Sheet”), together with (ii) a draft schedule (the “Draft Adjustment Report”) showing HandHeld’s computation of the Net Asset Adjustment as of the Closing Date and HandHeld’s proposed purchase price adjustment to be made in accordance with this Section 2.3. The Closing Date Balance Sheet shall be prepared on a basis consistent with that used in the preparation of the Financial Statements and in accordance with generally accepted accounting policies and practices in the United Kingdom. HandHeld shall deliver the Closing Date Balance Sheet and the Draft Adjustment Report to Owners within such ninety (90) day period after the Closing Date.
(b) During the thirty (30) day period after Owners’ receipt of the Closing Date Balance Sheet and the Draft Adjustment Report, Owners and HandHeld shall cooperate with each other to resolve any disagreements between them with respect to the Draft Adjustment Report. In the event Owners and HandHeld agree on the Draft Adjustment Report and the proposed Net Asset Adjustment set forth therein (such agreement to be indicated in writing by Owners and HandHeld by signing such Draft Adjustment Report), then the Draft Adjustment Report shall be deemed to be the final Adjustment Report (the “Adjustment Report”), and the Net Asset Adjustment set forth therein shall be conclusive and binding upon HandHeld and Owners and shall have the effect of adjusting the Cash Consideration as set forth therein.
(c) In the event Owners and HandHeld shall not reach agreement on all aspects of the Draft Adjustment Report, including with respect to the Net Asset Adjustment set forth therein, within such thirty (30) day period after the Owners’ receipt of the Closing Date Balance Sheet and the Draft Adjustment Report, Owners shall promptly (but in no event later than five (5) days following the expiration of such thirty (30) day period) prepare a written notice of objection(s) (the “Objection Notice”): (i) objecting in good faith to the Closing Date Balance Sheet or the Net Asset Adjustment set forth in the Draft Adjustment Report, (ii) setting forth the current assets minus items being disputed and the current liabilities reasons therefor, and (iii) specifying Owners’ calculation of the Company (the "WORKING CAPITAL") on the basis described in Annex B, accompanied by a report from Arthur Andersen LLP; PROVIDED, HOWEVER, if the transactions contemplaxxx xx Xxxxxxx 4.11(a) or (b) occur, the Closing Statement will be prepared as if the Com pany did not own the Dermablend Business or the National Cosmetics Business and the Iman Business Net Asset Adjustment as of the Closing DateDate and the adjustment to be made in accordance with this Section 2.3. In connection with the preparation of the Objection Notice, HandHeld shall grant Owners’ accountants and other representatives reasonable access to all of the books and records of Putfile. If Owners fail to deliver timely notice of objection to the Closing Date Balance Sheet or the Net Asset Adjustment as set forth in the Draft Adjustment Report, then the Draft Adjustment Report shall be deemed to be the final Adjustment Report, and the Net Asset Adjustment set forth therein shall be conclusive and binding upon HandHeld and Owners and shall have the effect of adjusting the Cash Consideration as set forth therein.
(d) The matters in dispute shall be determined by an independent accountant located within the United Kingdom (recognized as entitled to practice by the Institute of Chartered Accountants for England and Wales), mutually satisfactory to HandHeld and Owners (the “Arbiter”). In the absence of agreement over the appointment, the Arbiter shall be appointed by the President (or such other person nominated by him from time to time for such purposes) of the Institute of Chartered Accountants for England and Wales. HandHeld and Owners shall promptly deliver to the Arbiter the Closing Date Balance Sheet, the Draft Adjustment Report and Owners’ Objection Notice. Promptly, but not later than thirty (30) days after the acceptance of its appointment, the Arbiter shall determine (based solely on presentations by Owners and HandHeld to the Arbiter and not by independent review) only those items in dispute and shall render a report as to its resolution of such items and the resulting calculation of the Net Asset Adjustment. For purposes of the Arbiter’s determination, the amounts to be included shall be the appropriate amounts from the Closing Date Balance Sheet or the Draft Adjustment Report, as the case may be; PROVIDED FURTHER , as to items that if Buyer retains the Dermablend Business andare not in dispute, pursuant to Section 4.11(b), sells the National Cosmetics Business and the Iman Businessamounts determined by the Arbiter, as to items that are submitted for resolution by the Arbiter. In resolving any disputed item, the Dermablend Business will also include the net accounts receivable (other Arbiter may not assign a value to such item greater than the Designated Receivables (as defined greatest value for such item claimed by either party in Section 4.11)), bank overdraft, accounts payable and accrued expenses related to the National Cosmetics Business and the Iman Business. Seller and its authorized representatives shall have reasonable access to all relevant books and records and employees of the Company following the Closing Date to Balance Sheet, Draft Adjustment Report or Objection Notice or less than the extent required to complete preparation of lowest value for such item claimed by either party in the Closing StatementDate Balance Sheet, including, without limitation, preparation Draft Adjustment Report or Objection Notice. HandHeld and Owners shall cooperate with the Arbiter in making its determination and such determination shall be conclusive and binding upon HandHeld and Owners. The Arbiter shall act as expert and not as an arbitrator and the provisions of any financial reports or schedules needed to complete the Closing Statement. Seller and Buyer United Kingdom arbitration acts shall split equally the cost of preparing and delivering the Closing Statementnot apply.
(be) After receipt HandHeld and Owners shall each bear one-half of the Closing Statement, Buyer shall have 15 days to review it. Buyer fees and its authorized representatives shall have reasonable access to Seller's accountants to the extent required to complete their review expenses of the Closing Statement, including, without limitation, Arbiter.
(f) Within five Business Days after the accountants' work papers used in preparation thereof. Unless Buyer delivers written notice to Seller on or prior to the 15th day after receipt final determination of the Closing Statement specifying in reasonable detail its objections to the Closing Statement on the grounds that the Closing Statement (i) was not prepared Net Asset Adjustment in accordance with this Section 1.4 or (ii) contained arithmetic errors2.3, Owners shall direct the parties shall be deemed Escrow Holder to have accepted and agreed to pay HandHeld from the Closing Statement. If Buyer so notifies Seller Escrow Account by wire transfer of such an objection to immediately available funds the Closing Statementamount, if any, by which the parties shall within 15 days following the date of such notice (the "RESOLUTION PERIOD") attempt to resolve their differencesFinal Net Asset Adjustment is less than zero.
(cg) At the conclusion of the Resolution Period, any amounts remaining Nothing in dispute shall, at the election of either party, be submitted to Price Waterhouse (the "NEUTRAL AUDITOR"). The Neutral Auditor shall be engaged within five days after an election by either party to submit its objections to the Neutral Auditor, and each party agrees to execute, if requested by the Neutral Auditor, a reasonable engagement letter. All fees and expenses of the Neutral Auditor shall be borne equally by Seller and Buyer. The Neutral Auditor shall act as an arbitrator to determine, based solely on the written presentations by Seller and Buyer made within 15 days of the Neutral Auditor's engagement or such other reasonable period of time to which the parties agree, and not by independent review, only those issues still in dispute. The Neutral Auditor's determination shall be made within 30 days after Seller's and Buyer's written presentations have been made, shall be set forth in a written statement delivered to Seller and Buyer and shall be final, binding, conclusive and nonappealable. The term "FINAL CLOSING STATEMENT" shall mean the definitive Closing Statement agreed to by Seller and Buyer in accordance with Section 1.4(b) or the definitive Closing Statement resulting from the determination made by the Neutral Auditor in accordance with this Section 1.4(c) (2.3 or in addition to those items theretofore agreed to by Seller the statements, reports or documents contemplated hereby shall affect the parties’ rights and Buyer)obligations in respect of a breach or alleged breach of any representation or warranty herein.
Appears in 1 contract
Samples: Stock Purchase Agreement (Handheld Entertainment, Inc.)
Purchase Price Adjustment. (a) As soon as practicable but not later than 60 Within 30 days following after the Closing Date, Seller Date the Shareholders shall prepare and deliver to the Buyer a working capital statement the Closing Date Balance Sheet setting forth the amount of the Company Cash, Indebtedness, Accrued Interest and Adjusted Working Capital as of the close of business on Effective Time. In connection with the Closing Date (the "CLOSING STATEMENT") setting forth the current assets minus the current liabilities of the Company (the "WORKING CAPITAL") on the basis described in Annex B, accompanied by a report from Arthur Andersen LLP; PROVIDED, HOWEVER, if the transactions contemplaxxx xx Xxxxxxx 4.11(a) or (b) occur, the Closing Statement will be prepared as if the Com pany did not own the Dermablend Business or the National Cosmetics Business and the Iman Business as of the Closing Date, as the case may be; PROVIDED FURTHER that if Buyer retains the Dermablend Business and, pursuant to Section 4.11(b), sells the National Cosmetics Business and the Iman Business, the Dermablend Business will also include the net accounts receivable (other than the Designated Receivables (as defined in Section 4.11)), bank overdraft, accounts payable and accrued expenses related to the National Cosmetics Business and the Iman Business. Seller and its authorized representatives shall have reasonable access to all relevant books and records and employees of the Company following the Closing Date to the extent required to complete preparation of the Closing StatementDate Balance Sheet, including, without limitation, preparation the Shareholders shall take and prepare a physical count of any financial reports or schedules needed the Inventory of Deep Run as of the Effective Time at each location where Inventory is located as of the Effective Time. The physical count of the Inventory conducted by the Shareholders shall be in accordance with the Deep Run's historical accounting procedures used with respect to complete Inventory and disclosed to the Buyer prior to the Closing Statementand Inventory shall be valued at lower of cost or market in accordance with such practices. Seller and The Buyer shall split equally be entitled to observe such physical count. During the cost of preparing and delivering 30 days immediately following the Closing Statement.
(b) After Buyers' receipt of the Closing StatementDate Balance Sheet, the Buyer shall have 15 days be permitted to review it. Buyer the Shareholders' and its authorized representatives shall have reasonable access to Sellerthe Shareholders' Accountant's accountants working papers relating to the extent required to complete their review of Closing Date Balance Sheet. The Closing Date Balance Sheet shall become final and binding upon the Closing Statement, including, without limitation, parties on the accountants' work papers used in preparation thereof. Unless 30th day following receipt thereof by the Buyer delivers unless the Buyer gives written notice of its disagreement (a "NOTICE OF DISAGREEMENT") to Seller on or the Shareholders prior to the 15th day after receipt such date. Any Notice of the Closing Statement specifying Disagreement shall specify in reasonable detail its objections the nature and amount of any disagreement so asserted. If a timely Notice of Disagreement is received by the Shareholders, then the Closing Date Balance Sheet (as revised in accordance with clause (x) or (y) below) shall become final and binding upon the parties on the earlier of (x) the date the parties hereto resolve in writing any differences they have with respect to any matter specified in the Notice of Disagreement or (y) the date any matters properly in dispute are finally resolved in writing by the Accounting Firm (as defined below). During the 30 days immediately following the delivery of a Notice of Disagreement, the Shareholders and the Buyer shall seek in good faith to resolve in writing any differences which they may have with respect to any matter specified in the Notice of Disagreement. During such period, the Shareholders shall have full access to the Closing Statement on working papers of the grounds that Buyer prepared in connection with the Closing Statement Buyer's preparation of the Notice of Disagreement. At the end of such 30-day period, the Buyer and the Shareholders shall submit to a nationally recognized accounting firm mutually agreed upon (ithe "ACCOUNTING FIRM") was not prepared for review and resolution of any and all matters which remain in dispute and which were properly included in the Notice of Disagreement, and the Accounting Firm shall make a final determination of the Cash, Indebtedness, Accrued Interest and Adjusted Working Capital, in accordance with this Section 1.4 or (ii) contained arithmetic errorsSECTION 2.3(A), which determination shall be binding on the parties shall be deemed to have accepted and agreed to (it being understood, however, that the Closing Statement. If Buyer so notifies Seller of such an objection to the Closing Statement, the parties shall within 15 days following the date of such notice (the "RESOLUTION PERIOD") attempt to resolve their differences.
(c) At the conclusion of the Resolution Period, any amounts remaining in dispute shall, at the election of either party, be submitted to Price Waterhouse (the "NEUTRAL AUDITOR"). The Neutral Auditor shall be engaged within five days after an election by either party to submit its objections to the Neutral Auditor, and each party agrees to execute, if requested by the Neutral Auditor, a reasonable engagement letter. All fees and expenses of the Neutral Auditor shall be borne equally by Seller and Buyer. The Neutral Auditor Accounting Firm shall act as an arbitrator to determine, based solely on the written presentations by Seller the Buyer and Buyer made within 15 days of the Neutral Auditor's engagement or such other reasonable period of time to which the parties agree, Shareholders (and not by on its own independent review), only those issues still matters which remain in disputedispute and which were properly included in the Notice of Disagreement). The Neutral Auditor's determination Closing Date Balance Sheet shall become final and binding on the Buyer and the Shareholders on the date the Accounting Firm delivers its final resolution to the parties (which final resolution shall be made within 30 days after Sellerdelivered as soon as practicable following the selection of the Accounting Firm). The Accounting Firm shall be a firm which has not provided service to the Buyer or the Shareholders for a period of at least two years and be selected by the Buyer and the Shareholders or, if the parties are unable to agree, by the Buyer's and Buyer's written presentations have been made, Shareholders' independent accountants. The fees and expenses of the Accounting Firm pursuant to this SECTION 2.3 shall be set forth borne equally by the Shareholders on the one hand, and the Buyer on the other.
(b) The Buyer, Shareholders, the Shareholders' Accountants and Deep Run will cooperate in a written statement delivered the preparation of the Closing Date Balance Sheet, including providing customary certifications, if requested, to Seller and Buyer and shall be final, binding, conclusive and nonappealable. The term "FINAL CLOSING STATEMENT" shall mean the definitive Closing Statement agreed to by Seller and Buyer in accordance with Section 1.4(b) Shareholders' Accountants or the definitive Closing Statement resulting from the determination made by the Neutral Auditor in accordance with this Section 1.4(c) (in addition to those items theretofore agreed to by Seller and Buyer)Accounting Firm.
Appears in 1 contract
Samples: Stock Purchase Agreement (Windy Hill Pet Food Co Inc)
Purchase Price Adjustment. (a) As soon as practicable but not No later than 60 sixty (60) days following the Closing Date, Seller the Purchaser shall prepare and deliver to Buyer the Shareholder a working capital statement (the “Preliminary Working Capital Schedule”), which sets forth, in reasonable detail (and including relevant supporting documentation), the Purchaser’s calculation of (i) the Net Working Capital and (ii) the Working Capital Deficit, if any. Purchaser may only make a claim for an adjustment to Net Working Capital in respect of inventory if and to the extent that (1) such inventory is represented to be owned by the Company as of under , but is not owned by the close of business Company on the Net Working Capital Date, or (2) such inventory was assigned a book value in preparing the Closing Date (the "CLOSING STATEMENT") setting forth the current assets minus the current liabilities Statement in excess of the Company (the "WORKING CAPITAL") value that should have been assigned based on the basis described in Annex B, accompanied by a report from Arthur Andersen LLP; PROVIDED, HOWEVER, if principles set out on Exhibit 1.1(c). Upon the transactions contemplaxxx xx Xxxxxxx 4.11(a) or (b) occurrequest of the Shareholder to the Purchaser, the Closing Statement will be prepared as if Purchaser shall promptly make available to the Com pany did not own the Dermablend Business or the National Cosmetics Business and the Iman Business as Shareholder all of the Closing Date, as work papers of the case may be; PROVIDED FURTHER that if Buyer retains the Dermablend Business and, pursuant to Section 4.11(b), sells the National Cosmetics Business Purchaser and the Iman Business, the Dermablend Business will also include the net accounts receivable (other than the Designated Receivables (as defined in Section 4.11)), bank overdraft, accounts payable and accrued expenses related its Representatives relating to the National Cosmetics Business and the Iman Business. Seller and its authorized representatives shall have reasonable access to all relevant books and records and employees of the Company following the Closing Date to the extent required to complete preparation of the Closing Statement, including, without limitation, preparation of any financial reports or schedules needed to complete the Closing Statement. Seller and Buyer shall split equally the cost of preparing and delivering the Closing StatementPreliminary Working Capital Schedule.
(b) After The Shareholder shall have thirty (30) days following receipt of the Closing StatementPreliminary Working Capital Schedule during which to notify the Purchaser of any dispute of any item contained in the Preliminary Working Capital Schedule, Buyer which notice shall have 15 days to review it. Buyer and its authorized representatives shall have reasonable access to Seller's accountants to the extent required to complete their review of the Closing Statement, including, without limitation, the accountants' work papers used in preparation thereof. Unless Buyer delivers written notice to Seller on or prior to the 15th day after receipt of the Closing Statement specifying set forth in reasonable detail its objections to the Closing Statement on basis for such dispute. If the grounds that Shareholder does not notify the Closing Statement Purchaser of any such dispute within such thirty (i30) was not prepared in accordance with this Section 1.4 or (ii) contained arithmetic errorsday period, the parties Preliminary Working Capital Schedule shall be deemed to have accepted and agreed to be the Closing Statement. If Buyer so notifies Seller of such an objection to the Closing Statement, the parties shall within 15 days following the date of such notice (the "RESOLUTION PERIOD") attempt to resolve their differencesFinal Working Capital Schedule.
(c) At If the conclusion Shareholder notifies the Purchaser of any such dispute within such thirty (30) day period, the Purchaser and the Shareholder shall cooperate in good faith to resolve any such dispute as promptly as practicable, and upon such resolutions, the Final Working Capital Schedule shall be prepared in accordance with the agreement of the Resolution PeriodPurchaser and the Shareholder.
(d) If the Purchaser and the Shareholder are unable to resolve any dispute regarding the Preliminary Working Capital Schedule within thirty (30) days (or such longer period as the Purchaser and the Shareholder shall mutually agree in writing) following notice of such dispute, any amounts remaining in such dispute shall, at the election of either party, shall be submitted to, and all issues having a bearing on such dispute shall be resolved by, (i) the Houston office of PricewaterhouseCoopers LLP, or (ii) in the event such accounting firm is unable or unwilling to Price Waterhouse take such assignment, a “Big Four” accounting firm mutually agreed upon by the Purchaser and the Shareholder (such identified accounting firm or, if applicable, the "NEUTRAL AUDITOR"firm so selected, the “Arbitrator”). The Neutral Auditor Such resolution shall be engaged within five days after an election by either party final and binding on the Parties. The Purchaser and the Shareholder shall instruct the Arbitrator to submit its objections to make a final determination of Net Working Capital and the Neutral Auditor, and each party agrees to executeWorking Capital Deficit, if requested by the Neutral Auditor, a reasonable engagement letter. All fees and expenses of the Neutral Auditor shall be borne equally by Seller and Buyer. The Neutral Auditor shall act as an arbitrator to determineany, based solely on the written presentations items that are in dispute and that, in resolving such items in dispute and in determining Net Working Capital and the Working Capital Deficit, if any, the Arbitrator shall not assign to any item in dispute a value that is (A) greater than the greatest value for such item assigned by Seller the Purchaser, on the one hand, or the Shareholder, on the other hand, or (B) less than the smallest value for such item assigned by the Purchaser, on the one hand, or the Shareholder, on the other hand. The Arbitrator shall use commercially reasonable efforts to complete its work within sixty (60) days following its engagement. The fees, costs and Buyer made within 15 days expenses of the Neutral Auditor's engagement or such other reasonable period of time to which the parties agree, and not by independent review, only those issues still in dispute. The Neutral Auditor's determination Arbitrator (1) shall be made within 30 days after Seller's borne by the Purchaser in the proportion that the aggregate dollar amount of all such disputed items so submitted that are unsuccessfully disputed by the Purchaser (as finally determined by the Arbitrator) bears to the aggregate dollar amount of such items so submitted and Buyer's written presentations have been made, (2) shall be set forth borne by the Shareholder in a written statement delivered the proportion that the aggregate dollar amount of such disputed items so submitted that are successfully disputed by the Purchaser (as finally determined by the Arbitrator) bears to Seller and Buyer and the aggregate dollar amount of all such items so submitted. If any disputes are submitted to the Arbitrator pursuant to this , the Final Working Capital Schedule shall be final, binding, conclusive and nonappealable. The term "FINAL CLOSING STATEMENT" shall mean the definitive Closing Statement agreed to by Seller and Buyer prepared in accordance with Section 1.4(bthe decision of the Arbitrator and, to the extent applicable, the agreement of the Purchaser and the Shareholder.
(e) or the definitive Closing Statement resulting from Within five (5) Business Days following the determination made of the Final Working Capital Schedule pursuant to this , to the extent that there is a Working Capital Deficit on the Final Working Capital Schedule, the Shareholder shall be obligated to pay to the Purchaser in cash an aggregate amount equal to the Working Capital Deficit by wire transfer of immediately available funds to an account designated by the Neutral Auditor in accordance with this Section 1.4(c) (in addition to those items theretofore agreed to by Seller and Buyer)Purchaser.
Appears in 1 contract
Samples: Stock Purchase Agreement (Oil States International, Inc)
Purchase Price Adjustment. (a) As soon as practicable but not later than 60 Within sixty (60) days following after the Closing Date, Seller Purchaser shall prepare and deliver to Buyer Seller a working capital statement of the Company as of the close of business on the Closing Date Working Capital (the "CLOSING STATEMENT"“Statement of Closing Working Capital”) setting forth together with all supporting documentation. The Statement of Closing Working Capital shall be based upon the current assets minus the current liabilities books and records of the Company (the "WORKING CAPITAL") on the basis described in Annex B, accompanied by a report from Arthur Andersen LLP; PROVIDED, HOWEVER, if the transactions contemplaxxx xx Xxxxxxx 4.11(a) or (b) occur, the Closing Statement will and its Subsidiaries and shall be prepared as if in accordance with the Com pany did not own definitions of Working Capital and Closing Working Capital set forth in ARTICLE I and in accordance with the Dermablend Business or methodology used in the National Cosmetics Business and the Iman Business as calculation of the Estimated Closing Date, as the case may be; PROVIDED FURTHER that if Buyer retains the Dermablend Business and, pursuant to Section 4.11(b), sells the National Cosmetics Business and the Iman Business, the Dermablend Business will also include the net accounts receivable (other than the Designated Receivables (as defined in Section 4.11)), bank overdraft, accounts payable and accrued expenses related to the National Cosmetics Business and the Iman Business. Seller and its authorized representatives shall have reasonable access to all relevant books and records and employees of the Company following the Closing Date to the extent required to complete preparation of the Closing Statement, including, without limitation, preparation of any financial reports or schedules needed to complete the Closing Statement. Seller and Buyer shall split equally the cost of preparing and delivering the Closing StatementWorking Capital.
(b) After receipt The Statement of Closing Working Capital shall be final and binding on the Closing Parties unless Seller shall, within thirty (30) days following the delivery of such Statement, Buyer shall have 15 days deliver to review it. Buyer and its authorized representatives shall have reasonable access to Seller's accountants to the extent required to complete their review of the Closing Statement, including, without limitation, the accountants' work papers used in preparation thereof. Unless Buyer delivers Purchaser written notice to Seller on or prior to the 15th day after receipt of the Closing Statement specifying in reasonable detail its objections to the Closing Statement on the grounds that the Closing Statement (i) was not prepared in accordance disagreement with this Section 1.4 or (ii) contained arithmetic errors, the parties shall be deemed to have accepted and agreed to the Closing such Statement. If Buyer so notifies Seller of such an objection to shall raise any objections within the Closing Statementaforesaid thirty (30) day period, the parties then Seller and Purchaser shall within 15 days following the date of such notice (the "RESOLUTION PERIOD") attempt to resolve their differences.the disputed matters. If Seller and Purchaser are unable to resolve all disagreements within thirty (30) days of receipt by Purchaser of a written notice of disagreement, or such longer period as may be agreed by Purchaser and Seller, then, within thirty (30) days thereafter, Seller and Purchaser jointly shall select Deloitte or any other arbiter from a nationally recognized independent public accounting
(c) At firm that is not the conclusion independent auditor of Purchaser, the Resolution PeriodCompany, Seller or any amounts remaining in dispute shallof their respective Affiliates; if Purchaser and Seller are unable to select an arbiter within such time period, at the election of either party, be submitted to Price Waterhouse American Arbitration Association shall make such selection (the "NEUTRAL AUDITOR"Person so selected shall be referred to herein as the “Accounting Arbitrator”). The Neutral Auditor Accounting Arbitrator so selected will consider only those items and amounts set forth in such Statement as to which Purchaser and Seller have disagreed within the time periods and on the terms specified above and must resolve the matter in accordance with the terms and provisions of this Agreement. In submitting a dispute to the Accounting Arbitrator, each of the Purchaser and Seller shall concurrently furnish, at its own expense, to the Accounting Arbitrator and the other Party such documents and information as the Accounting Arbitrator may request. Each of Purchaser and Seller may also furnish to the Accounting Arbitrator such other information and documents as it deems relevant, with copies of such submission and all such documents and information being concurrently given to the other Party. The Accounting Arbitrator shall issue a detailed written report that sets forth the resolution of all items in dispute and that contains a final Statement of Closing Working Capital. Such report shall be engaged within five days after an election by either party to submit its objections to the Neutral Auditor, final and each party agrees to execute, if requested by the Neutral Auditor, a reasonable engagement letterbinding upon Purchaser and Seller. All The fees and expenses of the Neutral Auditor Accounting Arbitrator incurred in connection with the determination of the disputed items by the Accounting Arbitrator shall be borne by (i) Purchaser if the Accounting Arbitrator’s determination of the disputed items shall vary from Purchaser’s determination of the disputed items by more than the difference between Seller’s determination of the disputed items and the Accounting Arbitrator’s determination of the disputed items or (ii) Seller if the Accounting Arbitrator’s determination of the disputed items shall vary from Seller’s determination of the disputed items by more than the difference between Purchaser’s determination of the disputed items and the Accounting Arbitrator’s determination of the disputed items. The fees and expenses of the Accounting Arbitrator incurred in connection with the determination of the disputed items by the Accounting Arbitrator shall be borne equally by Purchaser and Seller and Buyer. The Neutral Auditor shall act as an arbitrator to determine, based solely on if the written presentations by Seller and Buyer made within 15 days Accounting Arbitrator’s determination of the Neutral Auditor's engagement disputed items shall vary from Seller’s determination of the disputed items by an amount equal to the difference between Purchaser’s determination of the disputed items and the Accounting Arbitrator’s determination of the disputed items. Purchaser and Seller shall cooperate fully with the Accounting Arbitrator and respond on a timely basis to all requests for information or such other reasonable period of time access to which the parties agree, and not by independent review, only those issues still in dispute. The Neutral Auditor's determination shall be made within 30 days after Seller's and Buyer's written presentations have been made, shall be set forth in a written statement delivered to Seller and Buyer and shall be final, binding, conclusive and nonappealable. The term "FINAL CLOSING STATEMENT" shall mean the definitive Closing Statement agreed to by Seller and Buyer in accordance with Section 1.4(b) documents or the definitive Closing Statement resulting from the determination personnel made by the Neutral Auditor Accounting Arbitrator or by other Parties hereto, all with the intent to fairly and in accordance with this Section 1.4(c) (in addition good faith resolve all disputes relating to those items theretofore agreed to by Seller and Buyer)the Statement of Closing Working Capital as promptly as reasonably practicable.
Appears in 1 contract
Purchase Price Adjustment. (a) As soon as practicable but not later than 60 days following On the Closing Date, Seller shall prepare and deliver to Buyer Purchaser a working capital statement (the “Closing Statement”) containing Seller’s final calculation of the Company as of the close of business on the Closing Date (the "CLOSING STATEMENT") setting forth the current assets minus the current liabilities of the Company (the "WORKING CAPITAL") on the basis described in Annex B, Inventory Value and shall be accompanied by a report from Arthur Andersen LLP; PROVIDED, HOWEVER, if the transactions contemplaxxx xx Xxxxxxx 4.11(a) or (b) occur, the with reasonably detailed documentation supporting Seller’s calculation thereof. The Closing Statement will be prepared in the form as if the Com pany did not own the Dermablend Business or the National Cosmetics Business and the Iman Business as of the Closing Date, as the case may be; PROVIDED FURTHER that if Buyer retains the Dermablend Business and, pursuant to Section 4.11(bset forth in Schedule 2.7(a), sells the National Cosmetics Business and the Iman Business, the Dermablend Business will also include the net accounts receivable (other than the Designated Receivables (as defined in Section 4.11)), bank overdraft, accounts payable and accrued expenses related to the National Cosmetics Business and the Iman Business. Seller and its authorized representatives shall have reasonable access to all relevant books and records and employees of the Company following the Closing Date to the extent required to complete preparation of the Closing Statement, including, without limitation, preparation of any financial reports or schedules needed to complete the Closing Statement. Seller and Buyer shall split equally the cost of preparing and delivering the Closing Statement.
(b) After receipt The Purchaser will have a period of twenty (20) Business Days to review the Closing Statement and all calculations set forth therein. Seller shall give Purchaser (upon reasonable advance notice and during normal business hours in a manner that does not materially interfere with Seller’s business) reasonable access to the applicable personnel and books and records of Seller and its Affiliates as reasonably requested by Purchaser, as well as use commercially reasonable efforts to cause [***] to provide Purchaser reasonable access to the premises of [***] and the records kept by them of the Purchased Inventories, to reasonably enable Purchaser to fully review the Closing Statement and such access shall be provided in a timely manner to allow Purchaser to complete such review in such twenty (20) Business Day period.
(c) The Closing Statement shall be conclusive of the amount of the Closing Date Inventory Value and shall be final and binding upon the Parties unless on or before the twentieth (20th) Business Day after the date on which the Closing Statement is delivered to Purchaser, Purchaser delivers to Seller a notice of objection (an “Objection Notice”) to any matter stated in the Closing Statement. Any Objection Notice shall specify, Buyer shall have 15 days to review it. Buyer and its authorized representatives shall have in reasonable access to Seller's accountants detail to the extent required Purchaser has the available information, those items or amounts as to complete their review of the Closing Statement, including, without limitation, the accountants' work papers used which Purchaser disputes in preparation thereof. Unless Buyer delivers written notice to Seller on or prior to the 15th day after receipt of the Closing Statement specifying in reasonable detail its objections to the Closing Statement on the grounds that the Closing Statement (i) was not prepared in accordance with this Section 1.4 or (ii) contained arithmetic errors, the parties good faith and Purchaser shall be deemed to have accepted agreed with all other items and agreed to amounts contained in the Closing Statement. If Buyer so notifies Seller Statement and the calculations of such an objection to the Closing Statement, the parties shall within 15 days following the date of such notice (the "RESOLUTION PERIOD") attempt to resolve their differencesDate Inventory Value set forth therein.
(cd) At If Purchaser fails to deliver an Objection Notice within such twenty (20) Business Day period, Purchaser shall be deemed to have waived its rights to contest the conclusion Closing Statement and the calculation of the Resolution Period, any amounts remaining in dispute shall, at Closing Date Inventory Value set forth therein shall be deemed to be final and binding upon the election of either party, be submitted to Price Waterhouse Parties (the "NEUTRAL AUDITOR"“Final Inventory Value”) and such amount shall be used for the purposes of adjustment to the Purchase Price pursuant to Section 2.7(g).
(e) If Purchaser delivers an Objection Notice to Seller on or before such twenty (20) Business Day period, then the Parties shall meet within ten (10) Business Days after Purchaser delivers an Objection Notice, by telephone or at a mutually agreeable location to discuss in good faith and attempt to reconcile their differences with respect to the amount of the Closing Date Inventory Value that is being challenged by Purchaser (the “Challenged Amount(s)”). In the event the Parties are unable to reach agreement on the Challenged Amounts, either Party may at any time thereafter submit such remaining disagreements to the Independent Accountant.
(f) The Neutral Auditor Parties shall use commercially reasonable efforts to cause the Independent Accountant, once appointed, to resolve all remaining disagreements with respect to Challenged Amounts as soon as practicable, but in any event shall direct the Independent Accountant to render a determination within thirty (30) days after retention of the Independent Accountant. Each Party will be afforded the opportunity to present to the Independent Accountant any material such Party deems relevant to the determination. The Independent Accountant shall consider only those items and amounts in Purchaser’s and Seller’s respective calculations of the Challenged Amounts that are identified as being items and amounts to which Purchaser and Seller have been unable to agree. In resolving any disputed item, the Independent Accountant may not assign a value to any item greater than the greatest value for such item claimed by either Party or less than the smallest value for such item claimed by either Party. The Independent Accountant’s determination of the Challenged Amounts shall be engaged within five days after an election by either party to submit its objections to the Neutral Auditor, and each party agrees to execute, if requested based solely on written materials submitted by the Neutral AuditorParties (i.e., a reasonable engagement letternot on independent review) and on the definitions included in this Agreement. All fees The determination of the Independent Accountant shall be conclusive and binding upon the Parties and shall not be subject to appeal or further review and shall be deemed as the Final Inventory Value for all purposes hereunder. The costs and expenses of the Neutral Auditor Independent Accountant in determining any Challenged Amounts shall be borne equally by Seller and Buyer. The Neutral Auditor shall act as an arbitrator to determinePurchaser, based solely on the written presentations by Seller one hand, and Buyer made within 15 days Seller, on the other hand.
(g) On the date of the Neutral Auditor's engagement or such other reasonable period binding determination of time the Final Inventory Value pursuant to which the parties agreeterms of this Section 2.7, and not by independent review, only those issues still in dispute. The Neutral Auditor's determination shall be made within 30 days after Seller's and Buyer's written presentations have been made, shall be if:
(i) the Final Inventory Value is equal to an amount that is less than the Closing Date Inventory Value set forth in a the Closing Statement (the aggregate total amount of the shortfall equal to the sum of (x) the Closing Date Inventory Value, minus (y) the Final Inventory Value, the “Inventory Shortfall Amount”), then Seller shall, within ten (10) Business Days of the binding determination of the Final Inventory Value, pay an amount in cash equal to the Inventory Shortfall Amount to Purchaser in immediately available funds by wire transfer to the account(s) specified in written statement delivered instructions provided by Purchaser to Seller; or
(ii) the Final Inventory Value is more than Closing Date Inventory Value set forth in the Closing Statement (the aggregate total amount of the excess equal to the sum of (x) the Final Inventory Value, minus (y) the Closing Date Inventory Value, the “Inventory Excess Amount”), then Purchaser shall, within ten (10) Business Days of the binding determination of the Final Inventory Value, pay an amount in cash equal to the Inventory Excess Amount to Seller and Buyer and shall be final, binding, conclusive and nonappealable. The term "FINAL CLOSING STATEMENT" shall mean in immediately available funds by wire transfer to the definitive Closing Statement agreed to account(s) specified in written instructions provided by Seller and Buyer to Purchaser.
(iii) notwithstanding anything to the contrary set forth above, in accordance with Section 1.4(b) or no event will the definitive Closing Statement resulting from the determination made by the Neutral Auditor in accordance with this Section 1.4(c) (in addition Final Inventory Value be deemed to those items theretofore agreed to by Seller and Buyer)exceed [***].
Appears in 1 contract
Purchase Price Adjustment. (a) As soon as practicable but not later than 60 days following For the purposes of finally determining Closing Date Third Party Indebtedness, Closing Date Transferred Subsidiary Cash, Closing Date Intra-Group Non-Trade Receivables, Closing Date Intra-Group Non-Trade Payables and Closing Date Net Working Capital, the Seller shall, after Closing, prepare a Closing Statement (the Proposed Closing Statement), setting forth the amounts and calculations, in accordance with the Closing DateStatement Principles, of each of Closing Date Third Party Indebtedness, Closing Date Transferred Subsidiary Cash, Closing Date Intra-Group Non-Trade Receivables, Closing Date Intra-Group Non-Trade Payables and Closing Date Net Working Capital, and any resulting proposed adjustment to the Initial Purchase Price, in each case together with reasonable supporting detail with respect to the calculations included therein. The Seller shall prepare and deliver the Proposed Closing Statement to Buyer a working capital statement the Purchaser within sixty (60) days after Closing. The Proposed Closing Statement shall be prepared as of (such time, the Statement Time):
(i) where Closing takes place on the first Business Day of the Company as of month, the close of business in the relevant locations on the Closing Date (the "CLOSING STATEMENT") setting forth the current assets minus the current liabilities last day of the Company previous month; or
(ii) otherwise, the "WORKING CAPITAL") close of business in the relevant locations on the basis described date on which Closing takes place, it being understood that no account shall be taken of events taking place after the Statement Time in Annex B, accompanied by a report from Arthur Andersen LLP; PROVIDED, HOWEVER, if determining the transactions contemplaxxx xx Xxxxxxx 4.11(a) or (b) occur, the Closing Statement will be prepared as if the Com pany did not own the Dermablend Business or the National Cosmetics Business and the Iman Business as of the Closing Date, as the case may be; PROVIDED FURTHER that if Buyer retains the Dermablend Business and, pursuant to Section 4.11(b), sells the National Cosmetics Business and the Iman Business, the Dermablend Business will also include the net accounts receivable (other than the Designated Receivables (as defined in Section 4.11)), bank overdraft, accounts payable and accrued expenses related to the National Cosmetics Business and the Iman Business. Seller and its authorized representatives shall have reasonable access to all relevant books and records and employees of the Company following the Closing Date to the extent required to complete preparation of the Closing Statement, including, without limitation, preparation of any financial reports or schedules needed to complete the Closing Statement. Seller and Buyer shall split equally the cost of preparing and delivering the Final Closing Statement.
(b) After receipt of The Proposed Closing Statement shall become final and binding upon the Parties on the sixtieth (60th) day following delivery thereof (and shall be deemed the Final Closing Statement, Buyer and the determination contained therein shall have 15 days to review it. Buyer be final and binding) unless the Purchaser gives written notice, in good faith, of its authorized representatives shall have reasonable access to Seller's accountants disagreement with the Proposed Closing Statement (a Notice of Disagreement) to the extent required Seller prior to complete their review the expiration of such sixty (60) day period. In addition, in order to be valid, a Notice of Disagreement shall specify those items or amounts with which the Purchaser disagrees in the Proposed Closing Statement and contain a reasonably detailed description of the reasons for its objections to each such item or amount contained therein. Items not validly disputed in the Notice of Disagreement shall be final and binding upon the Parties.
(c) The objections set forth in the Notice of Disagreement shall be resolved as follows:
(i) During the sixty (60) day period following the delivery of a Notice of Disagreement, the Purchaser and the Seller shall first seek in good faith to resolve such objections. If such objections are so resolved, they shall be deemed final and binding as so resolved and, at such time, the Proposed Closing Statement, includingas modified to reflect such resolution, without limitation, shall be deemed the accountants' work papers used in preparation thereof. Unless Buyer delivers written notice to Seller on or prior to the 15th day after receipt of the Final Closing Statement specifying in reasonable detail its objections to the Closing Statement on the grounds that the Closing Statement (i) was not prepared in accordance with this Section 1.4 or Statement.
(ii) contained arithmetic errorsIf the Parties do not resolve all of such objections during the foregoing sixty (60) day period, the parties Purchaser and the Seller shall submit to the Accounting Firm for determination any and all matters that remain in dispute (the Unresolved Objections) and which were included in the Notice of Disagreement.
(iii) The Accounting Firm shall be deemed instructed by the Parties to have accepted and agreed to render its determination regarding only the Closing Statement. If Buyer so notifies Seller of such an objection to the Closing Statement, the parties shall Unresolved Objections within 15 days twenty (20) Business Days following the date of such notice submission. In making its determination, the Accounting Firm shall act as an expert and not as an arbitrator. The scope of the Accounting Firm’s determination shall be limited to whether there were mathematical errors in the Proposed Closing Statement, whether the calculations of the Closing Date Third Party Indebtedness, Closing Date Transferred Subsidiary Cash, Closing Date Intra-Group Non-Trade Receivables, Closing Date Intra-Group Non-Trade Payables and Closing Date Net Working Capital, included therein, were performed in accordance with the Closing Statement Principles and the definitions contained herein and therein, and the Accounting Firm is not to make any other determination. The Accounting Firm’s determination with respect to any Unresolved Objection shall be within the range of values assigned by the Seller to such item in the Proposed Closing Statement and by the Purchaser to such item in the Notice of Disagreement. The Purchaser and the Seller shall furnish to each other and to the Accounting Firm such work papers and other documents and information relating to the determination of the Final Closing Statement as the Accounting Firm may reasonably request and are available to that Party (or its independent public accountants) and shall be afforded the "RESOLUTION PERIOD") attempt opportunity to present to the Accounting Firm any material related to the disputed items and to discuss such items with the Accounting Firm to the extent necessary to resolve their differencesany Unresolved Objections.
(civ) At The resolution by the conclusion Accounting Firm of the Resolution Period, any amounts remaining in dispute shallUnresolved Objections shall be final and binding and, at such time, the election of either partyProposed Closing Statement, as modified to reflect such resolution (and any matters resolved in accordance with Section 2.07(c)(i)), shall be submitted to Price Waterhouse (deemed the "NEUTRAL AUDITOR")Final Closing Statement. The Neutral Auditor Parties agree that the procedure set forth in this Section 2.07 for resolving disputes with respect to the Proposed Closing Statement shall be engaged within five days after an election by either party the exclusive method for resolving any disputes with respect to submit its objections to the Neutral AuditorClosing Date Third Party Indebtedness, Closing Date Transferred Subsidiary Cash, Closing Date Intra-Group Non-Trade Receivables, Closing Date Intra-Group Non-Trade Payables and each party agrees to execute, if requested by the Neutral Auditor, a reasonable engagement letter. All Closing Date Net Working Capital.
(v) The fees and expenses of the Neutral Auditor Accounting Firm shall be borne equally allocated to and paid by the Purchaser, on the one hand, and the Seller and Buyer. The Neutral Auditor shall act as an arbitrator to determineon the other, based solely on upon the written presentations by Seller and Buyer made within 15 days percentage that the portion of the Neutral Auditor's engagement contested amount not awarded to each Party bears to the amount actually contested between the Parties, as determined by the Accounting Firm.
(d) No later than five (5) Business Days after the Proposed Closing Statement is deemed the Final Closing Statement pursuant to this Section 2.07:
(i) if Closing Date Third Party Indebtedness is: (A) less than Estimated Closing Date Third Party Indebtedness, the Purchaser shall deliver to the Seller payment of the amount of such deficit; or (B) greater than Estimated Closing Date Third Party Indebtedness, the Seller shall deliver to the Purchaser payment of the amount of such other reasonable period excess;
(ii) if Closing Date Transferred Subsidiary Cash is: (A) less than Estimated Closing Date Transferred Subsidiary Cash, the Seller shall deliver to the Purchaser payment of time the amount of such deficit; or (B) greater than Estimated Closing Date Transferred Subsidiary Cash, the Purchaser shall deliver to which the parties agreeSeller payment of the amount of such excess;
(iii) if Closing Date Intra-Group Non-Trade Payables is: (A) less than Estimated Closing Date Intra-Group Non-Trade Payables, and not the Purchaser shall deliver to the Seller payment of the amount of such deficit; or (B) greater than Estimated Closing Date Intra-Group Non-Trade Payables, the Seller shall deliver to the Purchaser payment of the amount of such excess;
(iv) if Closing Date Intra-Group Non-Trade Receivables is: (A) less than Estimated Closing Date Intra-Group Non-Trade Receivables, the Seller shall deliver to the Purchaser payment of the amount of such deficit; or (B) greater than Estimated Closing Date Intra-Group Non-Trade Receivables, the Purchaser shall deliver to the Seller payment of the amount of such excess; and
(v) if Closing Date Net Working Capital is: (A) less than Estimated Closing Date Net Working Capital, the Seller shall deliver to the Purchaser payment of the amount of such deficit; or (B) greater than Estimated Closing Date Net Working Capital, the Purchaser shall deliver to the Seller payment of the amount of such excess. Any payments made by independent review, only those issues still in dispute. The Neutral Auditor's determination any Party pursuant to this Section 2.07(d) shall be made within 30 days after by wire transfer in immediately available funds to a bank account designated in writing by the Party receiving payment (such designation to be made at least three (3) Business Days prior to such payment). The Parties shall net the payments, if any, to be made pursuant to Sections 2.07(d)(i), (ii), and (v), such that only one Party is required to deliver amounts required to be paid thereunder. Any amounts required to be paid pursuant to Sections 2.07(d)(iii) and (iv) shall be made in accordance with Sections 2.06(c) and 2.06(d). Any amounts required to be paid pursuant to Sections 2.07(d)(iii) by the Purchaser, on the one hand, or the Seller's and Buyer's written presentations have been made, on the other hand, shall be set forth in considered to have been paid or received by the Seller on behalf of itself or the Selling Affiliates, as applicable or the Purchaser on behalf of itself or its Affiliates, as applicable.
(e) If there is an adjustment pursuant to this Section 2.07 or Section 2.06(c), as applicable, which relates to any Transferred Subsidiary, Transferred Asset or any other part of the Business which is the subject of a written statement delivered Local Agreement, then, if required to implement such adjustment, the Purchaser shall, and the Seller shall or shall cause the relevant member of the Seller’s Group to, to the extent permissible and/or required under Applicable Law, enter into one or more supplemental agreements reflecting such adjustment and the allocation thereof.
(f) Following the Closing and until the date the Proposed Closing Statement is deemed the Final Closing Statement pursuant to this Section 2.07, and without limiting Section 6.02, the Purchaser agrees that it shall provide and cause to be provided to the Seller’s Group and the Representatives of the Seller’s Group, reasonable access upon reasonable notice during normal business hours to the properties, books, contracts, personnel and records of the Business, and the Purchaser’s and its accountant’s work papers relevant to the preparation of the Proposed Closing Statement and/or Final Closing Statement and the adjustments contemplated by this Section 2.07, and shall provide the Seller, upon the Seller’s reasonable request and at the Seller’s expense, with copies of any such books, contracts, records and work papers and the Purchaser shall cause its personnel and the Transferred Employees to cooperate with the Seller and Buyer and shall be final, binding, conclusive and nonappealable. The term "FINAL CLOSING STATEMENT" shall mean respond to the definitive Closing Statement agreed to by Seller and Buyer in accordance Seller’s requests for information promptly with Section 1.4(b) or the definitive Closing Statement resulting from the determination made by the Neutral Auditor in accordance with this Section 1.4(c) (in addition to those items theretofore agreed to by Seller and Buyer)respect thereto.
Appears in 1 contract
Samples: Stock and Asset Purchase Agreement (Lilly Eli & Co)
Purchase Price Adjustment. (a) As soon as practicable but not later than 60 Within 30 days following after the Closing Date, Seller Buyer shall prepare and deliver to Buyer Sellers a working capital statement setting forth its determination of the Company as of the close of business on the Closing Date Working Capital (the "CLOSING STATEMENTInitial Working Capital Statement") setting ), which statement shall set forth in reasonable detail the current assets minus basis for such determination. During the current liabilities 20 Business Days immediately following the Sellers' receipt of the Company (the "WORKING CAPITAL") on the basis described in Annex BInitial Working Capital Statement, accompanied by a report from Arthur Andersen LLP; PROVIDED, HOWEVER, if the transactions contemplaxxx xx Xxxxxxx 4.11(a) or (b) occur, the Closing Statement Sellers and their representatives will be prepared permitted to review at the Sellers' offices Buyer's working papers relating to the Initial Working Capital Statement as if well as all of the Com pany did not own books and records relating to the Dermablend Business or operations and finances of the National Cosmetics Business Businesses with respect to the period up to and the Iman Business as of including the Closing Date, as and Buyer shall make reasonably available at Sellers' offices the case may be; PROVIDED FURTHER that if Buyer retains individuals responsible for the Dermablend Business and, pursuant to Section 4.11(b), sells the National Cosmetics Business and the Iman Business, the Dermablend Business will also include the net accounts receivable (other than the Designated Receivables (as defined in Section 4.11)), bank overdraft, accounts payable and accrued expenses related to the National Cosmetics Business and the Iman Business. Seller and its authorized representatives shall have reasonable access to all relevant books and records and employees of the Company following the Closing Date to the extent required to complete preparation of the Closing Statement, including, without limitation, preparation Initial Working Capital Statement in order to respond to the reasonable inquiries of any financial reports or schedules needed to complete the Closing Statement. Seller and Buyer shall split equally the cost of preparing and delivering the Closing StatementSellers.
(b) After receipt Sellers shall notify Buyer in writing (the "Notice of Disagreement") within 20 Business Days after receiving the Initial Working Capital Statement if Sellers disagree with Buyer's calculation of the Closing StatementWorking Capital, Buyer which Notice of Disagreement shall have 15 days to review it. Buyer set forth in reasonable detail the basis for such dispute and its authorized representatives shall have reasonable access to Seller's accountants to the extent required to complete their review U.S. Dollar amounts involved and Sellers' good faith estimate of the Closing StatementWorking Capital. If no Notice of Disagreement is received by Buyer within such 20 Business Day period, including, without limitation, then the accountants' work papers used in preparation thereof. Unless Buyer delivers written notice to Seller on or prior to the 15th day after receipt of the Closing Initial Working Capital Statement specifying in reasonable detail its objections to the Closing Statement on the grounds that the Closing Statement (i) was not prepared in accordance with this Section 1.4 or (ii) contained arithmetic errors, the parties shall be deemed to have been accepted by Sellers shall become final and agreed to the Closing Statement. If Buyer so notifies Seller of such an objection to the Closing Statement, binding upon the parties and shall within 15 days following be the date of such notice (the "RESOLUTION PERIOD") attempt to resolve their differencesFinal Working Capital Statement.
(c) At During the conclusion 20 Business Days immediately following the delivery of a Notice of Disagreement, Sellers and Buyer shall seek in good faith to resolve any differences that they may have with respect to any matter specified in the Notice of Disagreement. If at the end of such 20 Business Day period Sellers and Buyer have been unable to agree upon a Final Working Capital Statement, Sellers and Buyer shall submit to the Independent Accounting Firm for review and resolution any and all matters that remain in dispute with respect to the Notice of Disagreement. The Independent Accounting Firm shall use commercially reasonable efforts to make a final determination, binding on the parties hereto, of the Resolution PeriodClosing Working Capital within 20 Business Days, any amounts remaining in dispute shall, at and such final determination shall be the election of either party, be submitted to Price Waterhouse (the "NEUTRAL AUDITOR")Final Working Capital Statement. The Neutral Auditor shall be engaged within five days after an election by either party to submit its objections to the Neutral Auditor, and each party agrees to execute, if requested by the Neutral Auditor, a reasonable engagement letter. All fees and expenses cost of the Neutral Auditor Independent Accounting Firm's review and determination shall be borne equally by Seller Sellers and Buyer. The Neutral Auditor During the 20 Business Day review by the Independent Accounting Firm, Buyer and Sellers will each make available to the Independent Accounting Firm interviews with such individuals and such information, books and records as may be reasonably required by the Independent Accounting Firm to make its final determination.
(d) (i) If the Closing Working Capital (as set forth in the Final Working Capital Statement) exceeds the estimated amount thereof set forth on Schedule 2.7(d) (the "Estimated Closing Working Capital"), then Buyer shall act pay to Sellers an amount equal to such excess or (ii) if the Estimated Closing Working Capital exceeds the Closing Working Capital (as set forth in the Final Working Capital Statement), then the Sellers shall pay to Buyer an arbitrator amount equal to determinesuch excess, based solely in either case within five (5) Business Days after the Final Working Capital Statement becomes final and binding on the written presentations by Seller and Buyer made within 15 days of parties hereto. If the Neutral Auditor's engagement or such other reasonable period of time to which amount described in the parties agree, and preceding sentence shall not by independent review, only those issues still in dispute. The Neutral Auditor's determination shall be made have been paid within 30 days after Seller's and Buyer's written presentations have been madethe Closing Date, such amount shall be payable with accrued interest thereon from the Closing Date until the date of payment at a rate of 6% per annum calculated on the basis of a 360-day year. If the Closing Working Capital (as set forth in a written statement delivered the Final Working Capital Statement) is equal to Seller and the Estimated Closing Working Capital, then neither Buyer and nor Sellers shall be finalowe any amount to the other party pursuant to this Section 2.7.
(e) Buyer agrees that following the Closing through the date that payment, bindingif any, conclusive and nonappealable. The term "FINAL CLOSING STATEMENT" shall mean is made pursuant to Section 2.7(d), it will not take any actions with respect to any accounting books, records, policy or procedure on which the definitive Closing Initial Working Capital Statement agreed to by Seller and Buyer in accordance with Section 1.4(b) or the definitive Final Working Capital Statement is to be based that are inconsistent with past practices of Sellers or that would make it impossible or impracticable to calculate the Closing Statement resulting from Working Capital in the determination made by manner and utilizing the Neutral Auditor in accordance with this Section 1.4(c) (in addition to those items theretofore agreed to by Seller and Buyer)methods required hereby.
Appears in 1 contract
Samples: Asset and Stock Purchase Agreement (Tufco Technologies Inc)
Purchase Price Adjustment. (a) As soon as practicable but not later in no event more than 60 ninety (90) days following the Closing DateClosing, Seller shall prepare prepare, or cause to be prepared, and deliver to Buyer a working capital statement of the Company as of the close of business on the Closing Date (the "CLOSING STATEMENT") setting forth the current assets minus the current liabilities Inventory Statement, which shall be prepared in accordance with Seller’s past accounting methods, policies, practices and procedures. Upon completion of the Company (Closing Date Inventory Statement, Seller shall derive the "WORKING CAPITAL") on Closing Date Inventory Value from the basis described in Annex BClosing Date Inventory Statement, and deliver such calculation and the Closing Date Inventory Statement to Buyer, which shall be accompanied by a report from Arthur Andersen LLP; PROVIDED, HOWEVER, if the transactions contemplaxxx xx Xxxxxxx 4.11(a) certificate of Seller’s business controller (or (b) occur, the Closing Statement will be prepared as if the Com pany did not own the Dermablend Business or the National Cosmetics Business and the Iman Business as of the Closing Date, as the case may be; PROVIDED FURTHER that if Buyer retains the Dermablend Business and, pursuant to Section 4.11(bother person serving in a similar capacity), sells the National Cosmetics Business and the Iman Business, the Dermablend Business will also include the net accounts receivable (other than the Designated Receivables (as defined in Section 4.11)), bank overdraft, accounts payable and accrued expenses related to the National Cosmetics Business and the Iman Business. Seller and its authorized representatives shall have reasonable access to all relevant books and records and employees of the Company following the Closing Date to the extent required to complete preparation of the Closing Statement, including, without limitation, preparation of any financial reports or schedules needed to complete the Closing Statement. Seller and Buyer shall split equally the cost of preparing and delivering the Closing Statement.
(b) After receipt of the Closing Statement, Buyer shall have 15 days to review it. Buyer and its authorized representatives Buyer’s accountants shall have reasonable access to Seller's accountants to the extent required to complete their review of the Closing StatementDate Inventory Statement and Seller’s calculation of the Closing Date Inventory Value within ninety (90) days after delivery thereof by Seller. In the event that Buyer determines that the Closing Date Inventory Statement contains any inaccuracy or has not been prepared on the basis set forth in Section 2.11(a), includingBuyer shall, without limitationon or before the last day of such 90-day period, so inform Seller in writing (the accountants' work papers used in preparation thereof“Buyer’s Objection”), setting forth a specific description of the basis of Buyer’s determination and the adjustments to the Closing Date Inventory Statement and the corresponding adjustments to the Closing Date Inventory Value that Buyer believes should be made. Unless Buyer delivers written notice to If no Buyer’s Objection is received by Seller on or prior before the last day of such 90-day period, then the Closing Date Inventory Value set forth on the Closing Date Inventory Statement delivered by Seller shall be final. Seller shall have ninety (90) days from its receipt of Buyer’s Objection to review and respond to Buyer’s Objection, which shall be accompanied by a certificate of Seller’s business controller (or other person serving in a similar capacity) (the “Seller’s Objection”) and set forth a specific description of the basis of Seller’s determination and the adjustments to the 15th day after receipt of Buyer’s Objection and the Closing Statement specifying in reasonable detail its objections corresponding adjustments to the Closing Statement Date Inventory Value that Seller believes should be made. If no Seller’s Objection is received by Buyer on or before the last day of such 90-day period, then the Closing Date Inventory Value set forth on the grounds that the Closing Statement (i) was not prepared in accordance with this Section 1.4 or (ii) contained arithmetic errors, the parties Buyer’s Objection delivered by Buyer shall be deemed to have accepted and agreed to the Closing Statement. If Buyer so notifies Seller of such an objection to the Closing Statement, the parties shall within 15 days following the date of such notice (the "RESOLUTION PERIOD") attempt to resolve their differencesfinal.
(c) At If Seller timely delivers a Seller’s Objection and Seller and Buyer are unable to resolve all of their disagreements with respect to the conclusion proposed adjustments set forth in Buyer’s Objection within ninety (90) days following the receipt by Buyer of Seller’s Objection, either Seller or Buyer may refer any remaining disagreements to a nationally recognized accounting firm mutually acceptable to Buyer and Seller (the “Valuation Firm”) which, acting as experts and not as arbitrators, shall determine, on the basis set forth in and in accordance with Section 2.11(a), and only with respect to the remaining differences so submitted, whether and to what extent, if any, the Closing Date Inventory Statement and the Closing Date Inventory Value require adjustment. Buyer and Seller shall instruct the Valuation Firm to deliver its written determination to Buyer and Seller no later than ninety (90) days after the remaining differences underlying the Buyer’s Objection are referred to the Valuation Firm. The Valuation Firm’s determination shall be conclusive and binding upon Buyer and Seller and their Affiliates. The fees and disbursements of the Resolution Period, any amounts remaining in dispute shall, at the election of either party, be submitted to Price Waterhouse (the "NEUTRAL AUDITOR"). The Neutral Auditor shall be engaged within five days after an election by either party to submit its objections to the Neutral Auditor, and each party agrees to execute, if requested by the Neutral Auditor, a reasonable engagement letter. All fees and expenses of the Neutral Auditor Valuation Firm shall be borne equally by Buyer and Seller. Buyer and Seller shall make readily available to the Valuation Firm all relevant books and records relating to the Closing Date Inventory Statement, Buyer’s Objection and Seller’s Objection and all other items reasonably requested by the Valuation Firm in connection therewith.
(d) Buyer shall provide to Seller and its accountants reasonable access to the books and records of the IoT Business and to any other information, and to any employees during regular business hours and on reasonable advance notice, to the extent necessary for Seller to prepare the Closing Date Inventory Statement, to respond to Buyer’s Objection and to prepare materials for presentation to the Valuation Firm in connection with Section 2.11(c). The Neutral Auditor Buyer and its accountants shall act as an arbitrator have full access to determine, based solely on the written presentations all information used by Seller and Buyer made within 15 days of in preparing the Neutral Auditor's engagement or such other reasonable period of time Closing Date Inventory Statement.
(e) If the Closing Date Inventory Value as finally determined pursuant to which Section 2.11(a) through 2.11(c) differs from the parties agreeBase Inventory Value by more than five percent (5%), and not by independent review, only those issues still in dispute. The Neutral Auditor's determination then the Purchase Price shall be made within 30 days after Seller's and Buyer's written presentations have been made, shall be adjusted as set forth in the following sentence by (i) the Base Inventory Value minus (ii) the Closing Date Inventory Value, expressed as a written statement delivered positive, if positive, or as a negative, if negative, to the extent, and only to the extent, such amount differs from the Base Inventory Value by more than five percent (5%) (such difference in excess of five percent (5%) the “Purchase Price Adjustment Amount”). If the Purchase Price Adjustment Amount is a negative number, then the Purchase Price shall be increased by the Purchase Price Adjustment Amount and Buyer shall promptly (and in any event within seven (7) Business Days) after the final determination thereof pay to Seller and Buyer and the Purchase Price Adjustment Amount in U.S. Dollars by wire transfer of immediately available funds to an account designated by Seller. If the Purchase Price Adjustment Amount is a positive number, then the Purchase Price shall be final, binding, conclusive and nonappealable. The term "FINAL CLOSING STATEMENT" shall mean the definitive Closing Statement agreed to by Seller and Buyer in accordance with Section 1.4(b) or the definitive Closing Statement resulting from the determination made decreased by the Neutral Auditor Purchase Price Adjustment Amount and Seller shall promptly (and in accordance with this Section 1.4(cany event within seven (7) (Business Days) after the final determination thereof pay to Buyer the Purchase Price Adjustment Amount in addition U.S. Dollars by wire transfer of immediately available funds to those items theretofore agreed to an account designated by Seller and Buyer).
Appears in 1 contract
Samples: Asset Purchase Agreement (Cypress Semiconductor Corp /De/)
