Purchase Price and Adjustments. 2.2.1 Subject to the other terms and conditions of this Agreement, the total purchase price for the Equity Interests (the “Purchase Price”) shall consist of the items set forth in Section 2.2.2 of which $10,000 shall be allocated to the Restrictive Covenants in Section 9.5 hereof and the balance to the purchase of the Equity Interests. 2.2.2 The Purchase Price shall be paid as follows: 2.2.2.1 The Buyer shall pay (the “Closing Date Payment”) to Shareholder, by wire transfer on the Closing Date, an aggregate amount equal to Ten Million Dollars and Zero Cents ($10,000,000.00) (a) less obligations of the Companies under any employee retention or bonus plan or to satisfy any severance, parachute or employee closing bonuses (if any) or other obligations that are accelerated as a result of the Transaction (but only as to employees related to the Business as to NDTC), (b) less satisfaction of any and all outstanding Obligations as of the Closing Date of the Companies (but only such Obligations of NDTC related to the Business) to the Shareholder or to Related Parties of the Shareholder or NDTC (the “Company Obligations”), (c) less satisfaction of any and all Obligations of CBH and NDTC (relating to the Business) constituting long term debt (including the current portion of any long term debt) as of the Closing Date, and (d) less any of the Companies’ and Shareholder’s Obligations for costs and expenses associated with the Transaction, including legal, accounting and investment banking fees. 2.2.2.2 The Buyer shall deliver to the Shareholder an unsecured, subordinated promissory note (the “Note”) in aggregate amount of One Million Five Hundred Thousand Dollars ($1,500,000.00) or such lesser amount as adjusted as set forth herein and being in the form of Note attached as Exhibit 2.2.2.2. 2.2.2.3 The Buyer shall issue to the Shareholder a number of shares of its unregistered common stock (the “Common Stock”), equal to $3,000,000 divided by the arithmetic average of the closing sales price per share of Buyer’s Common Stock as reported on the NASDAQ market for the 10 trading days immediately preceding the Closing Date. The Common Stock shall be deposited with Buyer on the Closing Date and be held pursuant to the terms of the Pledge Agreement by Buyer as security for any Losses under Section 10, such Pledge Agreement to be in the form of Exhibit 2.2.2.3(a). The Shareholder shall be provided certain registration rights with respect to Common Stock in accordance with the terms and conditions of the Registration Rights Agreement (the “Registration Rights Agreement”) in the form attached hereto as Exhibit 2.2.2.3(b). 2.2.3 Two business days prior to Closing, the Shareholder shall deliver to Buyer an estimate of the Working Capital (the “Estimated Working Capital”) of CBH on the Closing Date as set forth on Schedule 2.2.3 (a) attached hereto. 2.2.3.1 To the extent the Estimated Working Capital is less than One Million Five Hundred Fifty-Seven Thousand Three Hundred Fifty Dollars ($1,557,350) (the “Required Amount”), the principal amount of the Note shall be reduced, dollar for dollar, by such deficiency. 2.2.3.2 Within ninety (90) days after the Closing Date, the Buyer shall (i) review and/or conduct agreed upon procedures upon the components of the Estimated Working Capital and prepare detailed statements (the “Actual Working Capital Statement”) of its calculation of the actual components of the Estimated Working Capital (“Actual Working Capital”) and (ii) deliver the Actual Working Capital Statement to the Shareholder. The Shareholder shall have a thirty day period to review the Actual Working Capital Statement and during such period, upon reasonable request, the Buyer shall share its work papers with the Shareholder or its professional advisers and to make itself reasonably available to the Shareholder and its professional advisers for the Shareholder’s review of the Actual Working Capital. 2.2.3.3 If Shareholder disputes the Actual Working Capital Statement, it shall deliver a notice to the Buyer no later than thirty days after their receipt of the Actual Working Capital Statement (the “Actual Working Capital Dispute Notice”). Shareholder shall set forth in detail in the Actual Working Capital Dispute Notice the basis for their disagreement with the calculations of the Actual Working Capital. If Shareholder fails to deliver the Actual Working Capital Dispute Notice within the allotted time period, Shareholder shall have been deemed to have agreed to the calculations of the Actual Working Capital prepared by the Buyer, which calculations shall be final, conclusive and binding upon the parties. 2.2.3.4 If Shareholder disputes the Actual Working Capital within the allotted time period, the parties in good faith will attempt to jointly resolve any dispute during the thirty day period following the delivery of the Actual Working Capital Dispute Notice. If the Buyer and Shareholder can resolve their dispute and agree upon the Working Capital of CBH, they shall memorialize their agreement in writing and such mutually agreed upon figure(s) shall be final, conclusive and binding upon all of the parties. 2.2.3.5 If the Buyer and Shareholder cannot resolve the dispute to their mutual satisfaction, the Buyer and Shareholder shall engage Xxxxx Xxxxxxxx (“Accounting Firm”), or another mutually agreeable independent, qualified, nationally recognized and respected accounting firm, to determine the Working Capital of CBH. The costs and expenses of the Accounting Firm shall be borne equally, but severally, by the Buyer, on the one hand, and Shareholder, on the other hand. To the extent that the Accounting Firm desires the parties to this Agreement to meet in person, the parties shall choose a mutually acceptable location for such meeting. Each of the Buyer and Shareholder shall cause their accounting professional advisers to provide the Accounting Firm such of their respective work papers as may be requested by the Accounting Firm. The Accounting Firm shall be requested to complete their engagement within forty-five days of being retained by the Buyer and Shareholder. The determination of the Accounting Firm shall be final, binding and conclusive upon the parties. 2.2.3.6 The final determination of the Working Capital of CBH pursuant to this Section shall be referred to herein as the “Final Working Capital.” If the Final Working Capital is less than the Estimated Working Capital (the “Negative Working Capital Balance”), such Negative Working Capital Balance shall be paid to the Buyer by first reducing the principal amount (and accrued interest on such principal amount) of the Note and then offsetting against the Common Stock (at the value set forth in Section 2.2.3.3) dollar for dollar by the amount of the Negative Working Capital Balance. Shareholder shall promptly present such Note to Buyer in order to effectuate such reduction. If the Final Working Capital is in excess of the Estimated Working Capital (“Positive Working Capital Balance”) it shall be paid to Shareholder by increasing the principal amount (and accrued interest on such principal amount) the Note dollar for dollar by the amount of the Positive Working Capital Balance. Shareholder shall promptly present such Note to Buyer in order to effectuate such increase. 2.2.4 Except to the extent a of a breach under this Section 2.2, the remedies set forth under this Section 2.2 are the sole and exclusive remedies to resolve any Negative Working Capital Balance.
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Purchase Price and Adjustments. 2.2.1 Subject to the other terms and conditions of this Agreement, the total purchase price for the Equity Interests (the “Purchase Price”) shall consist of the items set forth in Section 2.2.2 of which $10,000 shall be allocated to the Restrictive Covenants in Section 9.5 hereof and the balance to the purchase of the Equity Interests.
2.2.2 The Purchase Price shall be paid as follows:
2.2.2.1 The Buyer shall pay (the “Closing Date Payment”) to ShareholderSeller, by wire transfer on the Closing Date, an aggregate amount equal to Ten Eight Million Four Hundred Thousand Dollars and Zero Cents ($10,000,000.008,400,000) (a) less obligations of the Maple Companies Obligations under any employee retention or bonus plan or to satisfy any severance, parachute or employee closing bonuses (if any) or other obligations Obligations that are accelerated as a result of the Transaction (but only as to employees related to the Business as to NDTC)Transaction, (b) less satisfaction of any and all outstanding Obligations of the Maple Companies to Seller or to the Shareholders or their respective Related Parties as of the Closing Date of the Companies (but only such Obligations of NDTC related to the Business) to the Shareholder or to Related Parties of the Shareholder or NDTC (the “Company Obligations”)Date, (c) less satisfaction of any and all Obligations of CBH and NDTC (relating to the Business) Maple Companies constituting long term debt (including the current portion of any long term debtthereof) as of the Closing Date, and (d) less Eight Hundred Forty Thousand Dollars ($840,000) (“Escrow Amount”), which sum shall be wired at closing to an escrow account with a mutually agreed upon escrow agent as security for one year from Closing for any indemnification obligations pursuant to Section 10 and which sum shall be subject to the terms of the Companies’ Escrow Agreement, and Shareholder’s Obligations for costs and expenses associated (e) less any reduction in accordance with the Transaction, including legal, accounting and investment banking feesSection 2.2.3.1 hereof.
2.2.2.2 A payment, if earned, equal to (x) six (6) times (y) the EBITDA of Maple Star in excess of $879,237 for the twelve (12) month period following July 1, 2005 (the “Earn Out Term”) to the extent such excess is a direct result of an increase in reimbursement rates from existing Maple Star payers as of Closing (the “Earn Out”); provided, however, that the Earn Out payment shall be a maximum of the lower of: (x) $2,000,000 or (y) the total EBITDA of Maple Star and Maple Services during the Earn Out Term less $1,400,000 with the difference multiplied by six (6). Such payments are to be made within 30 days of the filing of Buyer’s next quarterly SEC filing following the expiration of the Earn Out Term. The Buyer shall deliver to the Shareholder an unsecuredSeller, subordinated promissory note along with the Earn Out payment, if any, a statement reflecting the relevant EBITDA calculation (the “NoteEarn Out Calculation”) in aggregate amount of One Million Five Hundred Thousand Dollars ($1,500,000.00) or such lesser amount as adjusted as set forth herein and being in the form of Note attached as Exhibit 2.2.2.2.
2.2.2.3 The Buyer shall issue ). If Seller does not provide written notice to the Shareholder a number of shares of its unregistered common stock Buyer (the “Common StockDispute Notice”)) disputing the Earn Out Calculation within thirty days after delivery thereof, then the Earn Out Calculation shall be final and binding upon the parties. If, on the other hand, the Seller does provide the Dispute Notice within the time period set forth in the preceding sentence, the Buyer and Seller shall submit the dispute to the Accounting Firm (defined in Section 2.2.3.5 below) to resolve. The costs and expenses of the Accounting Firm in connection with resolving the dispute shall be borne equally by Buyer, on the one hand, and the Seller, on the other hand. The determination of the Accounting Firm shall be final and binding upon the parties. If the Accounting Firm determines the Earn Out payment should have been adjusted, Seller or Buyer, as applicable, shall receive a payment equal to $3,000,000 divided by the arithmetic average difference between the Accounting Firm’s determination of the closing sales price per share of Earn Out payment and the Buyer’s Common Stock as reported on calculation of the NASDAQ market for the 10 trading days immediately preceding the Closing DateEarn Out payment. The Common Stock Such payment shall be deposited with Buyer on made within 10 days after the Closing Date and be held pursuant Accounting Firm’s final determination is communicated in writing to the terms of Buyer and the Pledge Agreement by Buyer as security for any Losses under Section 10, such Pledge Agreement to be in the form of Exhibit 2.2.2.3(a). The Shareholder shall be provided certain registration rights with respect to Common Stock in accordance with the terms and conditions of the Registration Rights Agreement (the “Registration Rights Agreement”) in the form attached hereto as Exhibit 2.2.2.3(b)Seller.
2.2.3 Two business days prior to Closing, the Shareholder Seller shall deliver to Buyer an estimate of the Working Capital (the “Estimated Working Capital”) of CBH on each of the Closing Maple Companies, MS Colorado and MS Oregon as of the Effective Date as and which is set forth on Schedule 2.2.3 (a) attached hereto.
2.2.3.1 To the extent the Estimated Working Capital is less than One Million Five Hundred Fifty-Seven Thousand Three Hundred Fifty Dollars $432,561 with respect to the Maple Companies, $167,042 with respect to MS Colorado and $200,397 with respect to MS Oregon ($1,557,350) (the each a “Required Target Working Capital Amount”), the principal amount of the Note Closing Date Payment shall be reduced, dollar for dollar, by each deficiency. To the extent there is a deficiency with respect to MS Colorado and/or MS Oregon, the Buyer, at Closing, shall make a corresponding working capital contribution in the amount of such deficiencydeficiency to MS Colorado and/or MS Oregon, as applicable. To the extent the Estimated Working Capital with respect to the Maple Companies exceeds the Target Working Capital Amount, the Maple Companies shall distribute such excess Working Capital to the Seller. Seller shall be fully liable for any and all Taxes relating to such distributions. To the extent such distribution includes Accounts Receivable, the parties acknowledge that Buyer is not required to advance payment on such Accounts Receivable prior to the collection and receipt of payment thereon and provided further, that, Buyer shall be entitled to withhold payment on such collections on a dollar for dollar basis to the extent any billing issues set forth as Schedule 3.10 directly or indirectly create any collection issues for services rendered by the Maple Companies post-Closing.
2.2.3.2 Within ninety (90) days after the Closing Date, the Buyer shall (i) review and/or conduct agreed upon procedures upon the components of the Estimated Working Capital and prepare detailed statements (the “Actual Working Capital Statement”) of its calculation of the actual components of the Estimated Working Capital (“Actual Working Capital”) and (ii) deliver the Actual Working Capital Statement for each of the Maple Companies, MS Colorado and MS Oregon to the ShareholderSeller. The Shareholder Seller shall have a thirty day period to review the such Actual Working Capital Statement Statements and during such period, upon reasonable request, period the Buyer shall share its work papers with the Shareholder Seller or its professional advisers and to make itself reasonably available to the Shareholder Seller and its professional advisers for the ShareholderSeller’s review of the Actual Working CapitalCapital Statements.
2.2.3.3 If Shareholder Seller disputes the an Actual Working Capital Statement, it shall deliver a notice to the Buyer no later than thirty days after their receipt of the such Actual Working Capital Statement (the “Actual Working Capital Dispute Notice”). Shareholder Seller shall set forth in detail in the Actual Working Capital Dispute Notice the basis for their disagreement with the calculations of the Actual Working Capital. If Shareholder Seller fails to deliver the Actual Working Capital Dispute Notice within the allotted time period, Shareholder Seller shall have been deemed to have agreed to the calculations of the Actual Working Capital prepared by the Buyer, which calculations shall be final, conclusive and binding upon the parties.
2.2.3.4 If Shareholder Seller disputes the a statement of Actual Working Capital within the allotted time period, the parties in good faith will attempt to jointly resolve any dispute during the thirty day period following the delivery of the Actual Working Capital Dispute Notice. If the Buyer and Shareholder Seller can resolve their dispute and agree upon the Working Capital of CBHdispute, they shall memorialize their agreement in writing and such mutually agreed upon figure(s) shall be final, conclusive and binding upon all of the parties.
2.2.3.5 If the Buyer and Shareholder Seller cannot resolve the dispute to their mutual satisfaction, the Buyer and Shareholder Seller shall engage Xxxxx Xxxxxxxx (“Accounting Firm”), or another mutually agreeable independent, qualified, nationally recognized and respected accounting firm, to determine the Working Capital balance of CBHthe Maple Companies, MS Colorado and MS Oregon, as applicable, as of the Effective Date. The costs and expenses of the Accounting Firm shall be borne equally, but severally, by the Buyer, on the one hand, and ShareholderSeller, on the other hand. To the extent that the Accounting Firm desires the parties to this Agreement to meet in person, the parties shall choose a mutually acceptable location for such meeting. Each of the Buyer and Shareholder Seller shall cause their accounting professional advisers to provide the Accounting Firm such of their respective work papers as may be requested by the Accounting Firm. The Accounting Firm shall be requested to complete their engagement within forty-five days of being retained by the Buyer and ShareholderSeller. The determination of the Accounting Firm shall be final, binding and conclusive upon the parties.
2.2.3.6 The final determination of the Actual Working Capital of CBH the Maple Companies, MS Colorado and MS Oregon on the Effective Date pursuant to this Section shall be referred to herein as the “Final Working Capital.” for each such Entity. If the Final Working Capital any of the Maple Companies, MS Colorado or MS Oregon is less than the corresponding Estimated Working Capital (the “Negative Working Capital Balance”), such Negative Working Capital Balance shall be paid to the Buyer by first reducing the principal amount Seller and the Shareholders (as a joint and accrued several obligation) in immediately available funds plus interest on such principal amount) at an annual rate of 6% from the Note and then offsetting against Effective Date until the Common Stock (at date of payment. To the value set forth in Section 2.2.3.3) dollar for dollar by the amount of the extent MS Colorado and/or MS Oregon have a Negative Working Capital Balance. Shareholder , Buyer shall promptly present make a corresponding working capital contribution in the amount of such Note Negative Working Capital Balance to Buyer in order to effectuate such reductionMS Colorado and/or MS Oregon, as applicable. If the Final Working Capital of the Maple Companies is in excess of the Estimated Working Capital for the Maple Companies (“Positive Working Capital Balance”) it ), such Positive Working Capital Balance, shall be paid to Shareholder Seller from collections of the Maple Companies’ Accounts Receivable shown on Schedule 3.10 to the extent such Accounts Receivable are collected in the 270 day period following Closing. Such collections shall be paid to Seller within 15 business days of receipt by increasing the principal amount (Maple Companies and accrued interest on such principal amount) only to the Note dollar for dollar by extent the amount of collections on such Accounts Receivable has exceeded (x) the Positive Current Liabilities determined in the Final Working Capital Balanceand (y) the amount the Target Working Capital exceeds the Current Liabilities determined in the Final Working Capital. Shareholder Notwithstanding anything to the contrary contained herein, for purposes of calculating Working Capital, the “deferred tax asset” for Maple Star shall promptly present not be considered. If within one year from the date hereof the deferred tax asset for Maple Star is actually realized or is realizable (except for any voluntary action taken by the Maple Companies subsequent to Closing), Buyer shall pay Seller the amount realized or realizable within 15 business days of such Note occurrence. Buyer shall use commercially reasonable efforts to Buyer collect such Accounts Receivable. To the extent the Final Working Capital of MS Colorado and MS Oregon is in order excess of the Estimated Working Capital for such entities, no adjustment shall be made and such excess shall not be distributed or transferred by such entities to effectuate such increaseany other Person prior to Closing.
2.2.4 Except to the extent a of a breach under this Section 2.2, the remedies set forth under Nothing contained in this Section 2.2 are shall be interpreted to limit the sole and exclusive remedies to resolve any Negative Working Capital Balanceindemnification provisions contained in Section 10 hereof.
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Purchase Price and Adjustments. 2.2.1 Subject to the other terms and conditions of this Agreement, the total purchase price for the Equity Interests (the “Purchase Price”) shall consist of the items set forth in Section 2.2.2 of which $10,000 shall be allocated to the Restrictive Covenants in Section 9.5 9.7 hereof and the balance to the purchase of the Equity Interests. The Purchase Price shall be allocated between the AlphaCare Campanies as follows: 86% to TFS and 14% to AC Resources.
2.2.2 The Subject to the other terms and conditions of this Agreement, the Purchase Price shall be paid as follows:
2.2.2.1 The Buyer shall pay (the “Closing Date Payment”) to ShareholderSeller, by wire transfer on the Closing Date, an aggregate amount equal to Ten Four Million Seven Hundred and Twenty-Six Thousand and Nine Hundred and Twenty-Two Dollars and Zero Cents ($10,000,000.004,726,922) (a) less obligations of the AlphaCare Companies Obligations under any employee retention or bonus plan or to satisfy any severance, parachute or employee closing bonuses (if any) or other obligations Obligations that are accelerated as a result of the Transaction (but only as to employees related to the Business as to NDTC)Transaction, (b) less satisfaction of any and all outstanding Obligations of the AlphaCare Companies to Seller or their respective Related Parties as of the Closing Date of the Companies (but only such Obligations of NDTC related to the Business) to the Shareholder or to Related Parties of the Shareholder or NDTC (the “Company Obligations”)Date, (c) less satisfaction of any and all Obligations of CBH and NDTC (relating to the Business) AlphaCare Companies constituting long term debt (including the current portion of any long term debtthereof) as of the Closing Date, and (d) less Four Hundred Seventy-Two Thousand Six Hundred and Ninety-Two Dollars ($472,692) (“Escrow Amount”), which sum shall be wired at closing to an escrow account with a mutually agreed upon escrow agent as security for eighteen (18) months for any indemnification obligations of Seller pursuant to Section 10 and which sum shall be subject to the terms of the Companies’ and Shareholder’s Obligations for costs and expenses associated with the Transaction, including legal, accounting and investment banking feesEscrow Agreement.
2.2.2.2 An earn-out (which shall be subordinated to the Buyer’s principal lender), if earned, equal to (a) (i) six (6) times the EBITDA of the AlphaCare Companies IFI Program for the eighteen (18) month period following the Closing (the “Earn Out Term”) plus (ii) three (3) times the EBITDA of the Alpha Care Companies Core Services Program during the Earn Out Term; times (b) six hundred sixty-seven thousandths (.667) (the “Earn Out”); provided, however, that the Earn Out payment shall not exceed (a) the total EBITDA of the AlphaCare Companies during the Earn Out Term times (b) six hundred sixty-seven thousandths (.667) less (c) $854,487 with such difference multiplied by six (6). The Buyer shall deliver to the Shareholder an Seller a statement reflecting the relevant EBITDA calculation and a calculation of the Earn Out based on Buyer’s audited financials for fiscal years 2005 and 2006 and unaudited quarterly fiscals for 2006 (the “Earn Out Calculation”). Such statement shall be delivered to Seller within 45 days of the end of the Earn Out Term. If Seller does not provide written notice to the Buyer (the “Dispute Notice”) disputing the Earn Out Calculation within thirty days after delivery thereof, then the Earn Out Calculation shall be final and binding upon the parties. If, on the other hand, the Seller does provide the Dispute Notice within the time period set forth in the preceding sentence, the Buyer and Seller shall submit the dispute to the Accounting Firm to resolve. The costs and expenses of the Accounting Firm in connection with resolving the dispute shall be borne equally by Buyer, on the one hand, and the Seller, on the other hand. The determination of the Accounting Firm shall be final and binding upon the parties. The Earn Out, if earned and determined as set forth above, shall be paid as follows: (i) one-third shall be payable in cash to Seller within the earliest of (x) 60 days after the filing of Buyer’s Form 10-Q for the first quarter of 2007 with the SEC or (y) 90 days following the end of the Earn Out Term; (ii) one-third shall be payable by delivery of unsecured, subordinated (in favor of Buyer’s principal lender only) Buyer promissory note (the “Note”) in aggregate amount of One Million Five Hundred Thousand Dollars ($1,500,000.00) or such lesser amount as adjusted as set forth herein and being note(s), in the form of Note attached as Exhibit 2.2.2.2.
2.2.2.3 The , in favor of Seller; and (iii) one-third shall be payable in shares of unregistered common stock of the Buyer shall issue to the Shareholder a Seller (the total number of shares of its unregistered common stock (the “Common Stock”), equal to $3,000,000 divided be determined by the arithmetic average of the closing sales price per share of Buyer’s Common Stock common stock as reported on the NASDAQ Nasdaq stock market for the 10 ten trading days immediately preceding the Closing Date. The Common Stock shall be deposited with Buyer on date the Closing Date and be held pursuant to the terms of the Pledge Agreement by Buyer as security for any Losses under Section 10, such Pledge Agreement to be cash payment in the form of Exhibit 2.2.2.3(a(i) above is payable). The Shareholder shares in (iii) above shall be provided certain registration rights with respect pledged upon issuance to Common Stock in accordance with the terms and conditions of the Registration Rights Agreement (the “Registration Rights Agreement”) Buyer, pursuant to a pledge agreement in the form attached hereto as Exhibit 2.2.2.3(b).
2.2.3 Two business 2.2.2.2, for twelve months to secure the idemnity obligations of Seller in Section 10. Buyer shall provide Seller with unaudited internal statements of EBITDA calculation for the IFI Program and the Core Services Program for the six month period following the Closing and such statement shall be delivered to Seller within 45 days prior to Closing, the Shareholder shall deliver to Buyer an estimate of the Working Capital (end of such six month period. For example, if Closing occurs on September 1, 2005, Buyer shall provide Seller a statement for the “Estimated Working Capital”) of CBH on period September 1, 2005 to February 28, 2006 no later than April 15, 2006. Seller and its agents and consultants shall be provided reasonable access to Buyer’s financial books and records that relate to the Closing Date as set forth on Schedule 2.2.3 (a) attached hereto.
2.2.3.1 To Earn-Out Calculation in order to verify the extent Earn-Out Calculation. Seller acknowledges and agrees that Buyer may terminate or discontinue the Estimated Working Capital IFI Program and the Core Services Program if in Buyer’s reasonable business judgment, Buyer determines it is less than One Million Five Hundred Fifty-Seven Thousand Three Hundred Fifty Dollars ($1,557,350) (in Buyer’s best interest to do so, without taking into account the “Required Amount”), the principal amount best interests of the Note Seller. EBITDA of the IFI Program and the Core Services Program shall be reducedonly include income and expenses directly attributable to the IFI Program and the Core Services Program
2.2.2.3 Buyer shall, dollar for dollar, by such deficiency.
2.2.3.2 Within during the ninety (90) days following Closing, collect and pay to Seller the Accounts Receivable of the of the AlphaCare Companies as specifically set forth on Schedule 3.7.1 as such Accounts Receivable are collected. Buyer shall use commercially reasonable efforts to collect such Accounts Receivable; Buyer is not required to institute suit or engage a collection agency. Buyer shall pay Seller as follows: (a) on or prior to the 35th day following Closing for the Accounts Receivable collected in the first 30 days following Closing, (b) on or prior to the 65th day for the Accounts Receivable collected on or after the 31st day following Closing Datethrough the 60th day following Closing, and (c) the Buyer shall difference between the total amount paid in (i) review and/or conduct agreed upon procedures upon the components of the Estimated Working Capital and prepare detailed statements (the “Actual Working Capital Statement”) of its calculation of the actual components of the Estimated Working Capital (“Actual Working Capital”a) and (iib) deliver above and $400,000 shall be paid to Seller on the Actual Working Capital Statement 90th day following Closing. Buyer shall have no obligation to pay any amount to Seller with regard to Accounts Receivable received by Buyer after the 90th day following Closing. Notwithstanding anything to the Shareholder. The Shareholder shall have a thirty day period to review the Actual Working Capital Statement and during such periodcontrary herein, upon reasonable request, the Buyer shall share its work papers with the Shareholder or its professional advisers and to make itself reasonably available to the Shareholder and its professional advisers for the Shareholder’s review not pay Seller less than a total of the Actual Working Capital.
2.2.3.3 If Shareholder disputes the Actual Working Capital Statement, it shall deliver a notice to the Buyer no later than thirty days after their receipt of the Actual Working Capital Statement (the “Actual Working Capital Dispute Notice”). Shareholder shall set forth in detail in the Actual Working Capital Dispute Notice the basis for their disagreement with the calculations of the Actual Working Capital. If Shareholder fails to deliver the Actual Working Capital Dispute Notice within the allotted time period, Shareholder shall have been deemed to have agreed to the calculations of the Actual Working Capital prepared by the Buyer, which calculations shall be final, conclusive and binding upon the parties.
2.2.3.4 If Shareholder disputes the Actual Working Capital within the allotted time period, the parties in good faith will attempt to jointly resolve any dispute during the thirty day period following the delivery of the Actual Working Capital Dispute Notice. If the Buyer and Shareholder can resolve their dispute and agree upon the Working Capital of CBH, they shall memorialize their agreement in writing and such mutually agreed upon figure(s) shall be final, conclusive and binding upon all of the parties.
2.2.3.5 If the Buyer and Shareholder cannot resolve the dispute to their mutual satisfaction, the Buyer and Shareholder shall engage Xxxxx Xxxxxxxx (“Accounting Firm”), or another mutually agreeable independent, qualified, nationally recognized and respected accounting firm, to determine the Working Capital of CBH. The costs and expenses of the Accounting Firm shall be borne equally, but severally, by the Buyer, on the one hand, and Shareholder, on the other hand. To the extent that the Accounting Firm desires the parties to this Agreement to meet in person, the parties shall choose a mutually acceptable location for such meeting. Each of the Buyer and Shareholder shall cause their accounting professional advisers to provide the Accounting Firm such of their respective work papers as may be requested by the Accounting Firm. The Accounting Firm shall be requested to complete their engagement within forty-five days of being retained by the Buyer and Shareholder. The determination of the Accounting Firm shall be final, binding and conclusive upon the parties.
2.2.3.6 The final determination of the Working Capital of CBH $400,000 pursuant to this Section shall be referred to herein as the “Final Working Capital2.2.3.” If the Final Working Capital is less than the Estimated Working Capital (the “Negative Working Capital Balance”), such Negative Working Capital Balance shall be paid to the Buyer by first reducing the principal amount (and accrued interest on such principal amount) of the Note and then offsetting against the Common Stock (at the value set forth in Section 2.2.3.3) dollar for dollar by the amount of the Negative Working Capital Balance. Shareholder shall promptly present such Note to Buyer in order to effectuate such reduction. If the Final Working Capital is in excess of the Estimated Working Capital (“Positive Working Capital Balance”) it shall be paid to Shareholder by increasing the principal amount (and accrued interest on such principal amount) the Note dollar for dollar by the amount of the Positive Working Capital Balance. Shareholder shall promptly present such Note to Buyer in order to effectuate such increase.
2.2.4 Except to the extent a of a breach under this Section 2.2, the remedies set forth under this Section 2.2 are the sole and exclusive remedies to resolve any Negative Working Capital Balance.
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Purchase Price and Adjustments. 2.2.1 Subject to the other terms and conditions of this Agreement, the total purchase price for the Equity Interests (the “Purchase Price”) shall consist of the items set forth in Section 2.2.2 of which $10,000 25,000 shall be allocated to the Restrictive Covenants in Section 9.5 9.6 hereof and the balance to the purchase of the Equity Interests.
2.2.2 The Purchase Price shall be paid as follows:
2.2.2.1 The Buyer shall pay One Million Dollars ($1,000,000) (the “Closing Date Payment”) to ShareholderSeller, by wire transfer on the Closing Date, an aggregate amount equal to Ten Million Dollars and Zero Cents ($10,000,000.00) less: (a) less obligations of the Companies Company’s Obligations under any employee retention or bonus plan or to satisfy any severance, parachute or employee closing bonuses (if any) or other obligations Obligations that are accelerated or due as a result of the Transaction (but only as to employees related to the Business as to NDTC)Transaction, (b) less satisfaction of any and all outstanding Obligations of the Company to Seller or their respective Related Parties as of the Closing Date (c) any payments required to deliver the Assets of the Companies Company free and clear of all liens (but only such Obligations of NDTC related d) all long term liabilities and (e) any reduction in accordance with Section 2.2.3.1 hereof.
(a) An earn-out, if earned, equal to five (5) times the Business) to the Shareholder or to Related Parties EBITDA of the Shareholder or NDTC Company for the period beginning April 1, 2006 and ending December 31, 2006 (the “Company ObligationsFirst Earn-Out Term”) divided by 9 and multiplied by 12 (such payment, the “First Earn-Out”) and (b) an earn-out, if earned, equal to the product of five (5) times the difference between the Company’s EBITDA for calendar year 2007 (the “Second Earn-Out Term”) less the Company’s EBITDA for calendar year 2006 (annualized as set forth above) (the “Second Earn-Out”), (c) less satisfaction of any and all Obligations of CBH and NDTC (relating to . Buyer shall determine the Business) constituting long term debt (including the current portion of any long term debt) as amount of the Closing Date, First Earn-Out and Second Earn-Out within thirty (d30) less any days of the Companies’ completion of the audit of its financial statements for Company (but not later than 120 days after the Company’s fiscal year end), for calendar years 2006 and Shareholder’s Obligations for costs and expenses associated with 2007 respectively at which time the Transaction, including legal, accounting and investment banking fees.
2.2.2.2 The Buyer shall deliver to the Shareholder Seller a statement reflecting the relevant EBITDA calculation and the applicable calculation of the earn-out based on Buyer’s audited financials for each of the calendar years 2006 and 2007 (each such calculation, an unsecured, subordinated promissory note “Earn-Out Calculation”). If Seller does not provide written notice to the Buyer (the “NoteDispute Notice”) disputing the Earn-Out Calculation for each year within thirty days after delivery thereof, then the applicable Earn-Out Calculation shall be final and binding upon the parties. If, on the other hand, the Seller does provide the Dispute Notice within the time period set forth in aggregate amount the preceding sentence, the Buyer and Seller shall submit the dispute to the Accounting Firm to resolve, using the procedures set forth in Section 2.2.3.5. The costs and expenses of One Million Five Hundred Thousand Dollars ($1,500,000.00) or such lesser amount as adjusted the Accounting Firm in connection with resolving the dispute shall be borne equally by Buyer, on the one hand, and the Seller, on the other hand. The determination of the Accounting Firm shall be final and binding upon the parties. The earn-outs, if earned and determined as set forth herein above, shall be paid as follows: The First Earn-Out shall be paid in cash within thirty (30) days of the determination of such earn-out and being the Second Earn-Out shall be paid seventy-five per cent (75%) in cash within thirty (30) days of the form determination of Note attached as Exhibit 2.2.2.2.
2.2.2.3 The such earn-out and twenty five per cent (25%) shall be payable in shares of unregistered common stock of the Buyer shall issue to the Shareholder a Seller (the total number of shares of its unregistered common stock (the “Common Stock”), equal to $3,000,000 divided be determined by using the arithmetic average of the closing sales price per share of Buyer’s Common Stock common stock as reported on the NASDAQ Nasdaq stock market or other applicable stock market for the 10 last ten trading days of the calendar year immediately preceding the Closing Date. The Common Stock shall be deposited with Buyer on date Buyer’s auditors have completed their audit of Buyer’s financial statements for the Closing Date and be held pursuant to the terms of the Pledge Agreement by Buyer as security for any Losses under Section 10, such Pledge Agreement to be in the form of Exhibit 2.2.2.3(aapplicable calendar year). The Shareholder number of shares of unregistered common stock of Buyer that may be payable to Seller shall not exceed 9.9% of the outstanding shares of Buyer’s common stock as measured on the Effective Date and to the extent the number of shares payable exceeds 9.9%, the difference shall be provided certain registration rights with respect paid in cash by Buyer to Common Stock in accordance with the terms and conditions Seller. Buyer may set-off against any portion of the Registration Rights Agreement (First Earn-Out and Second Earn-Out to satisfy indemnity obligations of Seller in Section 10. Seller’s right to receive the “Registration Rights Agreement”) First Earn-Out and Second Earn-Out shall be subordinated to the rights of Buyer’s primary lender.
2.2.2.3 In the event an Earn-Out Calculation becomes final and binding making an Earn-Out payable, to the extent there is no good faith set off by Buyer under Section 10.6 hereof, interest shall accrue on such balance at the interest rate set forth in Section 10.3.3. hereof.
2.2.2.4 In the form attached hereto as Exhibit 2.2.2.3(b)event Seller is requested by Buyer after the Effective Date to perform services for Buyer that are unrelated to Company and would have a material adverse impact on the EBITDA of Company for purposes of calculating the Earn-Out, Buyer and Seller shall negotiate whether Seller should provide such requested services and whether the Earn-Out Calculation should be modified accordingly.
2.2.3 Two business days prior to Closing, the Shareholder Seller shall deliver to Buyer an estimate of the Working Capital (the “Estimated Working Capital”) of CBH the Company on the Closing Effective Date as set forth on Schedule 2.2.3 (a) attached hereto.
2.2.3.1 To the extent the Estimated Working Capital is less than One Million Five Hundred Fifty-Seven Thousand Three Hundred Fifty Dollars zero ($1,557,350) (the “Required Amount”), the principal amount of the Note Closing Date Payment shall be reduced, dollar for dollar, by each deficiency. To the extent the Estimated Working Capital exceeds the Required Amount, the Company shall distribute such deficiencyexcess Working Capital to the Seller. Seller shall be fully liable for any and all Taxes relating to such distributions. To the extent such distribution includes Accounts Receivable, the parties acknowledge that Buyer is not required to advance payment on such Accounts Receivable prior to the collection and receipt of payment thereon.
2.2.3.2 Within ninety (90) days after the Closing Date, the Buyer shall (i) review and/or conduct agreed upon procedures upon the components of the Estimated Working Capital and prepare detailed statements (the “Actual Working Capital Statement”) of its calculation of the actual components of the Estimated Working Capital (“Actual Working Capital”) and (ii) deliver the Actual Working Capital Statement for the Company to the ShareholderSeller. The Shareholder Seller shall have a thirty day period to review the such Actual Working Capital Statement Statements and during such period, upon reasonable request, period the Buyer shall share its work papers with the Shareholder Seller or its professional advisers and to make itself reasonably available to the Shareholder Seller and its professional advisers for the ShareholderSeller’s review of the Actual Working CapitalCapital Statement.
2.2.3.3 If Shareholder Seller disputes the an Actual Working Capital Statement, it shall deliver a notice to the Buyer no later than thirty days after their receipt of the such Actual Working Capital Statement (the “Actual Working Capital Dispute Notice”). Shareholder Seller shall set forth in detail in the Actual Working Capital Dispute Notice the basis for their disagreement with the calculations of the Actual Working Capital. If Shareholder Seller fails to deliver the Actual Working Capital Dispute Notice within the allotted time period, Shareholder Seller shall have been deemed to have agreed to the calculations of the Actual Working Capital prepared by the Buyer, which calculations shall be final, conclusive and binding upon the parties.
2.2.3.4 If Shareholder Seller disputes the a statement of Actual Working Capital within the allotted time period, the parties in good faith will attempt to jointly resolve any dispute during the thirty day period following the delivery of the Actual Working Capital Dispute Notice. If the Buyer and Shareholder Seller can resolve their dispute and agree upon the Working Capital of CBHdispute, they shall memorialize their agreement in writing and such mutually agreed upon figure(s) shall be final, conclusive and binding upon all of the parties.
2.2.3.5 If the Buyer and Shareholder Seller cannot resolve the dispute to their mutual satisfaction, the Buyer and Shareholder Seller shall engage Xxxxx Xxxxxxxx (“the Accounting Firm”), or another mutually agreeable independent, qualified, nationally recognized and respected accounting firm, to determine the Working Capital balance of CBHthe Company, as of the Closing Date. The costs and expenses of the Accounting Firm shall be borne equally, but severally, by the Buyer, on the one hand, and ShareholderSeller, on the other hand. To the extent that the Accounting Firm desires the parties to this Agreement to meet in person, the parties shall choose a mutually acceptable location for such meeting. Each of the Buyer and Shareholder Seller shall cause their accounting professional advisers to provide the Accounting Firm such of their respective work papers as may be requested by the Accounting Firm. The Accounting Firm shall be requested to complete their engagement within forty-five days of being retained by the Buyer and ShareholderSeller. The determination of the Accounting Firm shall be final, binding and conclusive upon the parties.
2.2.3.6 The final determination of the Actual Working Capital of CBH the Company, on the Closing Date pursuant to this Section shall be referred to herein as the “Final Working Capital.” ”. If the Final Working Capital of the Company is less than the corresponding Estimated Working Capital (the “Negative Working Capital Balance”), such Negative Working Capital Balance shall be paid to the Buyer by first reducing the principal amount Seller (as a joint and accrued interest on such principal amountseveral obligation) of in immediately available funds to the Note and then offsetting against extent no reduction had been made to the Common Stock Closing Date Payment under Section 2.2.2.1 (at the value set forth in Section 2.2.3.3) dollar for dollar by the amount of the Negative Working Capital Balance. Shareholder shall promptly present such Note to Buyer in order to effectuate such reductione). If the Final Working Capital of the Company is in excess of the Estimated Working Capital (“Positive Working Capital Balance”) it ), such Positive Working Capital Balance, shall be paid to Shareholder by increasing the principal amount (and accrued interest on such principal amount) the Note dollar for dollar by the amount Seller from collections of the Positive Working Capital Balance. Shareholder shall promptly present such Note to Buyer in order to effectuate such increase.
2.2.4 Except Company’s Accounts Receivable shown on Schedule 2.2.3 within thirty (30) days of collection to the extent a of a breach under this Section 2.2, such Accounts Receivable are collected in the remedies set forth under this Section 2.2 are the sole and exclusive remedies 180 day period following Closing. Buyer shall use commercially reasonable efforts to resolve any Negative Working Capital Balancecollect such Accounts Receivable.
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Purchase Price and Adjustments. 2.2.1 Subject to the other terms and conditions of this Agreement, the total (a) The aggregate purchase price for the Equity Interests Stock shall be an amount (the “"Purchase Price”") shall consist equal to (1) the Base Purchase Price, (2) either (x) increased by the difference between the Final Working Capital Amount and the Target Working Capital Amount, in the event the Final Working Capital Amount exceeds Target Working Capital Amount or (y) decreased by the difference between Target Working Capital Amount and the Final Working Capital Amount, in the event the Final Working STOCK PURCHASE AGREEMENT 11 EXECUTION VERSION Capital Amount is less than the Target Working Capital Amount, (3) either (x) increased by the net amount of the items set forth in Section 2.2.2 of which $10,000 shall be allocated cash funded to the Restrictive Covenants in Section 9.5 hereof Acquired Entities and ACS Defense (other than with respect to the Retained Business or the business conducted with respect to the Excluded Assets) by Seller and its Affiliates (other than the Acquired Entities and ACS Defense) between the Effective Date and the balance Closing Date ("Net Funded Cash") or (y) decreased by the net amount of cash swept from the Acquired Entities and ACS Defense (other than with respect to the purchase of Retained Business or the Equity Interestsbusiness conducted with respect to the Excluded Assets) by Seller and its Affiliates (other than the Acquired Entities or ACS Defense) between the Effective Date and the Closing Date ("Net Swept Cash"), and (4) decreased by the Post-Closing Outsourcing Adjustment Amount, if any, as determined in accordance with Section 5.14(b).
2.2.2 The Purchase Price shall be paid as follows:
2.2.2.1 The (b) At the Closing, Buyer shall pay to Holdco an amount equal to (x) $588,000,000 minus (y) the Closing Date Outsourcing Adjustment Amount, if any, as determined in accordance with Section 5.14(a) (the “Closing Date Payment”) to Shareholder, "Base Purchase Price"). Such payment shall be made by wire transfer on of immediately available funds in U.S. Dollars to an account designated by Seller to Buyer at least one business day prior to the Closing Date.
(c) Promptly following the Closing Date, an aggregate amount equal to Ten Million Dollars and Zero Cents ($10,000,000.00) (a) less obligations of the Companies under any employee retention or bonus plan or to satisfy any severance, parachute or employee closing bonuses (if any) or other obligations that are accelerated as a result of the Transaction (but only as to employees related to the Business as to NDTC), (b) less satisfaction of any and all outstanding Obligations as of the Closing Date of the Companies (but only such Obligations of NDTC related to the Business) to the Shareholder or to Related Parties of the Shareholder or NDTC (the “Company Obligations”), (c) less satisfaction of any and all Obligations of CBH and NDTC (relating to the Business) constituting long term debt (including the current portion of any long term debt) as of the Closing Date, and (d) less any of the Companies’ and Shareholder’s Obligations for costs and expenses associated with the Transaction, including legal, accounting and investment banking fees.
2.2.2.2 The Buyer shall deliver to the Shareholder an unsecured, subordinated promissory note (the “Note”) in aggregate amount of One Million Five Hundred Thousand Dollars ($1,500,000.00) or such lesser amount as adjusted as set forth herein and being in the form of Note attached as Exhibit 2.2.2.2.
2.2.2.3 The Buyer shall issue to the Shareholder a number of shares of its unregistered common stock (the “Common Stock”), equal to $3,000,000 divided by the arithmetic average of the closing sales price per share of Buyer’s Common Stock as reported on the NASDAQ market for the 10 trading days immediately preceding the Closing Date. The Common Stock shall be deposited with Buyer on the Closing Date and be held pursuant to the terms of the Pledge Agreement by Buyer as security for any Losses under Section 10, such Pledge Agreement to be in the form of Exhibit 2.2.2.3(a). The Shareholder shall be provided certain registration rights with respect to Common Stock in accordance with the terms and conditions of the Registration Rights Agreement (the “Registration Rights Agreement”) in the form attached hereto as Exhibit 2.2.2.3(b).
2.2.3 Two business days prior to Closing, the Shareholder shall deliver to Buyer an estimate of the Working Capital (the “Estimated Working Capital”) of CBH on the Closing Date as set forth on Schedule 2.2.3 (a) attached hereto.
2.2.3.1 To the extent the Estimated Working Capital is less no event later than One Million Five Hundred Fifty-Seven Thousand Three Hundred Fifty Dollars ($1,557,350) (the “Required Amount”), the principal amount of the Note shall be reduced, dollar for dollar, by such deficiency.
2.2.3.2 Within ninety (90) 60 days after the Closing Date, the Buyer shall prepare and submit to Seller (ix) review and/or conduct agreed upon procedures upon the components a combined balance sheet of the Estimated Working Capital Transferred Subsidiaries and prepare detailed statements their Subsidiaries as of the close of business on the Effective Date (the “Actual Working Capital Statement”) of its "Closing Balance Sheet"), on a pro forma basis taking into account the transactions contemplated by Section 2.4, together with Buyer's calculation of the actual components of the Estimated Closing Working Capital (“Actual Working Capital”) and (ii) deliver the Actual "Proposed Final Working Capital Statement to the Shareholder. The Shareholder shall have a thirty day period to review the Actual Working Capital Statement and during Amount") (such periodcalculation, upon reasonable request, the Buyer shall share its work papers together with the Shareholder or its professional advisers and to make itself reasonably available to the Shareholder and its professional advisers for the Shareholder’s review of the Actual Working Capital.
2.2.3.3 If Shareholder disputes the Actual Working Capital Statement, it shall deliver a notice to the Buyer no later than thirty days after their receipt of the Actual Working Capital Statement (the “Actual Working Capital Dispute Notice”). Shareholder shall set forth in detail in the Actual Working Capital Dispute Notice the basis for their disagreement with the calculations of the Actual Working Capital. If Shareholder fails to deliver the Actual Working Capital Dispute Notice within the allotted time period, Shareholder shall have been deemed to have agreed to the calculations of the Actual Working Capital prepared by the Buyer, which calculations shall be final, conclusive and binding upon the parties.
2.2.3.4 If Shareholder disputes the Actual Working Capital within the allotted time period, the parties in good faith will attempt to jointly resolve any dispute during the thirty day period following the delivery of the Actual Working Capital Dispute Notice. If the Buyer and Shareholder can resolve their dispute and agree upon the Working Capital of CBH, they shall memorialize their agreement in writing and such mutually agreed upon figure(s) shall be final, conclusive and binding upon all of the parties.
2.2.3.5 If the Buyer and Shareholder cannot resolve the dispute to their mutual satisfaction, the Buyer and Shareholder shall engage Xxxxx Xxxxxxxx (“Accounting Firm”), or another mutually agreeable independent, qualified, nationally recognized and respected accounting firm, to determine the Working Capital of CBH. The costs and expenses of the Accounting Firm shall be borne equally, but severally, by the Buyer, on the one hand, and Shareholder, on the other hand. To the extent that the Accounting Firm desires the parties to this Agreement to meet in person, the parties shall choose a mutually acceptable location for such meeting. Each of the Buyer and Shareholder shall cause their accounting professional advisers to provide the Accounting Firm such of their respective work papers as may be requested by the Accounting Firm. The Accounting Firm shall be requested to complete their engagement within forty-five days of "Closing Balance Sheet" being retained by the Buyer and Shareholder. The determination of the Accounting Firm shall be final, binding and conclusive upon the parties.
2.2.3.6 The final determination of the Working Capital of CBH pursuant to this Section shall be referred to herein as the “Final "Closing Date Statement") and (y) Buyer's calculation of Net Funded Cash or Net Swept Cash, as the case may be. The Closing Balance Sheet shall be prepared by Buyer in accordance with GAAP, consistently applied, and Closing Working Capital.” If Capital will be determined in accordance with the procedures set forth on Schedule 2.2(c). In the event Seller disputes the correctness of the Proposed Final Working Capital is less than Amount or the Estimated Net Funded Cash or Net Swept Cash, as the case may be, Seller shall notify Buyer in writing of its objections within 30 days after receipt of the Closing Date Statement and shall set forth, in writing and in reasonable detail, the reasons for Seller's objections. Seller agrees that any adjustments proposed in accordance with the foregoing will not involve changes in or challenges to the accounting methodologies, policies or procedures that have been consistently applied in the preparation of the Closing Date Statement and are in accordance with Schedule 2.2(c). If Seller fails to deliver its notice of objections within 30 days after receipt of the Closing Date Statement and calculation of Net Funded Cash or Net Swept Cash, as the case may be, Seller shall be deemed to have accepted Buyer's calculation. To the extent Seller does not object, in writing and in accordance with and within the time period contemplated by this Section 2.2(c), to a matter in the Closing Date Statement or the calculation of Net Funded Cash or Net Swept Cash, Seller shall be deemed to have accepted Buyer's calculation and presentation in respect of the matter and the matter shall not be considered to be in dispute. Seller and Buyer shall endeavor in good faith to resolve any disputed matters within 20 days after receipt of Seller's notice of objections. If Seller and Buyer are unable to resolve the disputed matters, Seller and Buyer shall select a nationally known independent accounting firm (which firm shall not be the then regular auditors of Buyer or ACS) to resolve the matters in dispute (in a manner consistent with Section 2.2(d) and with any matters not in dispute), and the determination of such firm in respect of the correctness of each matter remaining in dispute shall be conclusive and binding on Seller and Buyer. The determination of such firm shall be based solely on presentations by Seller and Buyer and shall not be by independent review. The Closing Working Capital as of the Effective Date, as finally determined pursuant to this Section 2.2(c) (whether by failure of Seller to deliver notice of objection, by agreement of Seller and Buyer or by determination of the “Negative Working Capital Balance”independent accountants selected as set forth above), such Negative Working Capital Balance shall be paid is referred to herein as the Buyer by first reducing the principal amount (and accrued interest on such principal amount) of the Note and then offsetting against the Common Stock (at the value set forth in Section 2.2.3.3) dollar for dollar by the amount of the Negative Working Capital Balance. Shareholder shall promptly present such Note to Buyer in order to effectuate such reduction. If the "Final Working Capital is in excess of the Estimated Working Capital (“Positive Working Capital Balance”) it shall be paid to Shareholder by increasing the principal amount (and accrued interest on such principal amount) the Note dollar for dollar by the amount of the Positive Working Capital Balance. Shareholder shall promptly present such Note to Buyer in order to effectuate such increaseAmount.
2.2.4 Except to the extent a of a breach under this Section 2.2, the remedies set forth under this Section 2.2 are the sole and exclusive remedies to resolve any Negative Working Capital Balance."
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Samples: Stock Purchase Agreement (Affiliated Computer Services Inc)
