Purchase Price True-Up. (a) Following the Closing, the Purchase Price shall be adjusted as provided herein to reflect the difference between the Estimated Purchase Price Adjustment and the Purchase Price Adjustment, as finally determined pursuant to this Section 1.7. Within 60 days following the Closing Date, the Acquiror shall deliver to the Stockholders’ Representative the Closing Balance Sheet, the calculation of the Working Capital Adjustment, Net Cash, Transfer Taxes and Company Transaction Expenses together with a calculation of the Purchase Price Adjustment (derived from the Closing Balance Sheet and/or such other books and records of the Company and its Subsidiaries as are applicable). (b) Subject to the execution of customary auditors’ confidentiality and liability release undertakings (covering “secret d’affaires”) by the Stockholders’ Representative on its behalf and on behalf of its representatives (including its auditors), the Acquiror shall provide the Stockholders’ Representative and its auditors with full and prompt access to the books and records and relevant personnel of the Acquiror, the Company and its Subsidiaries and their statutory auditors for the purpose of reviewing the Closing Balance Sheet, the Working Capital Adjustment, the Net Cash, the Transfer Taxes and the Company Transaction Expenses. Such access shall be (x) during normal business hours and upon reasonable advance notice, and (y) up until the final determination of the Purchase Price Adjustment. The Selling Stockholders shall use such access for the sole purpose of the determination of the Purchase Price Adjustment. In addition, the Selling Stockholders’ auditors shall have full access to the accounting books and records, work papers, schedules or additional documents prepared, used or otherwise generated by the statutory auditors of the Company and its Subsidiaries. (c) The Closing Balance Sheet and calculation of the Purchase Price Adjustment delivered by the Acquiror to the Stockholders’ Representative shall be conclusive and binding upon all the parties to this Agreement unless the Stockholders’ Representative, within sixty (60) days after delivery thereof, notifies the Acquiror in writing that the Stockholders’ Representative disputes any of the amounts set forth therein, specifying the nature of the dispute and the basis therefor. The Stockholders’ Representative and the Acquiror shall in good faith attempt to resolve any dispute and, if they so resolve all disputes, the Closing Balance Sheet and the Purchase Price Adjustment, as amended to the extent necessary to reflect the resolution of the dispute, shall be conclusive and binding on all of the parties to this Agreement. If the Stockholders’ Representative and the Acquiror do not reach agreement in resolving the dispute within twenty (20) calendar days after notice is given by the Stockholders’ Representative to the Acquiror pursuant to the second preceding sentence, the parties shall submit the dispute to a mutually satisfactory partner in the San Jxxx office of the accounting firm of Deloitte & Touche LLP or, if no partner at such firm will act, to a partner at such other nationally recognized independent accounting firm which is mutually agreeable to the Stockholders’ Representative and the Acquiror (the “Arbiter”) for resolution. If the Stockholders’ Representative and the Acquiror cannot agree on the selection of a partner at an independent accounting firm to act as Arbiter, the parties shall resolve such dispute through arbitration conducted in accordance with the rules of the American Arbitration Association with a single arbitrator to act as the Arbiter, who’s decision shall be conclusive and binding on all of the parties to this Agreement. Promptly, but no later than twenty (20) calendar days after acceptance of his or her appointment as Arbiter, the Arbiter shall determine (it being understood that in making such determination, the Arbiter shall be functioning as an expert and not as an arbitrator), based solely on written submissions by the Acquiror and the Stockholders’ Representative, and not by independent review, only those issues in dispute and shall render a written report as to the resolution of the dispute and the resulting computation of the Purchase Price Adjustment which shall be conclusive and binding on the parties. All proceedings conducted by the Arbiter shall take place in San Jose, California. In resolving any disputed item, the Arbiter (x) shall be bound by the provisions of this Section 1.7 and (y) may not assign a value to any item greater than the greatest value for such items claimed by either party or less than the smallest value for such items claimed by either party. The fees, costs and expenses of the Arbiter shall be allocated to and borne by the Acquiror and the Selling Stockholders based on the inverse of the percentage that the Arbiter’s determination (before such allocation) bears to the total amount of the total items in dispute as originally submitted to the Arbiter. For example, if the Stockholders’ Representative decides to submit a dispute hereunder to arbitration, and the Arbiter ultimately awards 70% of the amount disputed by the Stockholders’ Representative, then the Selling Stockholders will bear 30% of the fees, costs and expenses of the Arbiter (in addition to their own fees, costs and expenses), and the Acquiror will bear 70% of the Arbiter’s fees, costs and expenses (in addition to its own fees, costs and expenses). (d) Upon final determination of the Purchase Price Adjustment, if the Purchase Price as adjusted by the Purchase Price Adjustment is less than the Purchase Price as adjusted by the Estimated Purchase Price Adjustment (the “Purchase Price Excess”), the Escrow Selling Stockholders shall pay to the Acquiror the amount, if any, by which the Purchase Price Excess exceeds the Holdback, together with interest thereon from the Closing Date to the date of payment thereof as determined below, by giving the requisite release instructions to the Escrow Agent to permit the Acquiror to receive such amount of cash out of the Warranty Escrow Fund, Any amounts payable by the Escrow Selling Stockholders under this clause shall be payable solely out of the Warranty Escrow Fund. The Selling Stockholders’ Representative, on behalf of the Escrow Selling Stockholders, shall give the requisite release instructions to the Escrow Agent promptly, but no later than five (5) business days after such final determination. If the Purchase Price Excess is less than the Holdback, the Acquiror shall pay to the Selling Stockholders or the Paying Agent, on behalf of Selling Stockholders, the amount of such difference in cash, together with interest thereon from the Closing Date to the date of payment thereof as determined below. Any such payment by the Acquiror shall be made promptly, but no later than five (5) business days after such final determination; provided that 10% of the cash to otherwise be paid to the Selling Stockholders shall be deposited into the Warranty Escrow Fund (subject to Section 1.6(d)). Each Selling Stockholder will receive their Closing Consideration Proportionate Interest in any such remaining cash and stock payable to them. (e) Upon final determination of the Purchase Price Adjustment, if the Purchase Price as adjusted by the Purchase Price Adjustment is more than the Purchase Price as adjusted by the Estimated Purchase Price Adjustment, the Acquiror shall pay in cash to the Selling Stockholders or the Paying Agent, on behalf of the Selling Stockholders, the sum of (A) the amount of such difference and (B) the Holdback, promptly, but no later than five (5) business days after such final determination, together with interest thereon from the Closing Date to the date of payment thereof as determined below; provided that 10% of the cash to otherwise be paid to the Selling Stockholders shall be deposited into the Warranty Escrow Fund (subject to Section 1.6(d)). Each Selling Stockholder will receive their Closing Consideration Proportionate Interest in any such remaining cash and stock payable to them. (f) For the purposes of this Section 1.7, interest will be payable at the “prime” rate, as announced by The Wall Street Journal, Eastern Edition, from time to time to be in effect, calculated based on a 365 day year and the actual number of days elapsed.
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Purchase Price True-Up. (a) Following A written statement (the “Final Purchase Price Calculation Statement”) certifying in reasonable detail the Buyer’s good faith, reasonable calculations of the amount of the (i) Cash and Cash Equivalents, (ii) Reimbursable Transaction Expenses, (iii) Indebtedness, including Closing Indebtedness repaid or retired at the Closing, (iv) Company Transaction Expenses, (v) Closing Date Net Working Capital and the Net Working Capital Adjustment calculated by reference thereto and (vi) based on the foregoing clauses (i) through (v), in each case calculated as of the Closing, a calculation of the Purchase Price Price, shall be adjusted delivered by the Buyer to the Sellers’ Representative as provided herein to reflect the difference between the Estimated Purchase Price Adjustment and the Purchase Price Adjustment, soon as finally determined pursuant to this Section 1.7. Within 60 days practicable following the Closing Date, but not later than sixty (60) calendar days after the Acquiror shall deliver last day of the month in which the Closing occurs, together with reasonable supporting detail. Prior to the Stockholders’ Representative delivery of any Notice of Disagreement, each party shall give the Closing Balance Sheet, other party reasonable access to any data or materials not under the calculation control of such party necessary to prepare and/or evaluate the Working Capital Adjustment, Net Cash, Transfer Taxes and Company Transaction Expenses together with a calculation of the Final Purchase Price Adjustment (derived from the Closing Balance Sheet and/or such other books and records of the Company and its Subsidiaries as are applicable)Calculation Statement.
(b) Subject The Final Purchase Price Calculation Statement shall become final and binding on the parties on the thirtieth (30th) calendar day following receipt thereof by the Sellers’ Representative unless the Sellers’ Representative delivers written notice of its good faith disagreement (a “Notice of Disagreement”) to the execution Buyer prior to such date. Any Notice of customary auditors’ confidentiality and liability release undertakings (covering “secret d’affaires”) by the Stockholders’ Representative on its behalf and on behalf of its representatives (including its auditors), the Acquiror Disagreement shall provide the Stockholders’ Representative and its auditors with full and prompt access to the books and records and relevant personnel of the Acquiror, the Company and its Subsidiaries and their statutory auditors for the purpose of reviewing the Closing Balance Sheet, the Working Capital Adjustment, the Net Cash, the Transfer Taxes and the Company Transaction Expenses. Such access shall be (x) during normal business hours and upon reasonable advance notice, and (y) up until the final determination of the Purchase Price Adjustment. The Selling Stockholders shall use such access for the sole purpose of the determination of the Purchase Price Adjustment. In addition, the Selling Stockholders’ auditors shall have full access to the accounting books and records, work papers, schedules or additional documents prepared, used or otherwise generated by the statutory auditors of the Company and its Subsidiaries.specify in
(c) The Closing Balance Sheet and calculation of If the Purchase Price, as calculated pursuant to this Section 2.6, exceeds the Estimated Purchase Price Adjustment delivered by (the Acquiror amount thereof, the “Excess”), then (i) the Buyer shall cause to be paid to the StockholdersSeller an amount equal to the Excess, and (ii) the Buyer and the Sellers’ Representative shall be conclusive and binding upon deliver a joint written notice to the Agent instructing it to pay all funds in the parties Adjustment Escrow Fund to the Seller.
(d) If the Purchase Price, as calculated pursuant to this Agreement unless Section 2.6, is equal to the Stockholders’ RepresentativeEstimated Purchase Price, within sixty (60) days after delivery thereofthen no further payment shall be due to either the Buyer or the Seller under this Section 2.5, notifies the Acquiror in writing except that the StockholdersBuyer and the Sellers’ Representative disputes any shall deliver a joint written notice to the Agent instructing it to pay all funds in the Adjustment Escrow Fund to the Seller.
(e) If the Purchase Price, as calculated pursuant to this Section 2.6, is less than the Estimated Purchase Price (the amount of such difference, the “Deficiency”), then the Buyer and the Sellers’ Representative shall deliver joint written notice to the Agent instructing it to pay the Deficiency out of the amounts set forth therein, specifying Adjustment Escrow Fund to the nature Buyer in accordance with the terms of the dispute Escrow and the basis therefor. The Stockholders’ Representative and the Acquiror shall in good faith attempt to resolve any dispute and, if they so resolve all disputes, the Closing Balance Sheet and the Purchase Price Adjustment, as amended to the extent necessary to reflect the resolution of the dispute, shall be conclusive and binding on all of the parties to this Paying Agent Agreement. If the StockholdersAdjustment Escrow Fund is insufficient to cover the entire amount of the Deficiency, such shortfall shall be satisfied (i) first, from the Specific Indemnity Escrow Amount, (ii) second, from the then available proceeds of the Sellers’ Representative Expense Amount, (iii) third, from the Seller and (iv) fourth, from the Acquiror do Beneficial Owners, severally and not reach agreement in resolving the dispute within twenty (20) calendar days after notice is given by the Stockholders’ Representative to the Acquiror pursuant to the second preceding sentencejointly, the parties shall submit the dispute to a mutually satisfactory partner in the San Jxxx office of the accounting firm of Deloitte & Touche LLP or, if no partner at such firm will act, to a partner at such other nationally recognized independent accounting firm which is mutually agreeable to the Stockholders’ Representative and the Acquiror (the “Arbiter”) for resolution. If the Stockholders’ Representative and the Acquiror cannot agree on the selection of a partner at an independent accounting firm to act as Arbiter, the parties shall resolve such dispute through arbitration conducted in accordance with their pro rata share as set forth on Annex A. If Buyer elects to withdraw funds from the rules Specific Indemnity Escrow Amount, Seller will, within three (3) Business Days after written notice of such election, deliver to the American Arbitration Association with a single arbitrator to act as the ArbiterAgent, who’s decision shall be conclusive and binding on all by wire transfer of the parties to this Agreement. Promptly, but no later than twenty (20) calendar days after acceptance of his or her appointment as Arbiterimmediately available funds, the Arbiter shall determine (it being understood that in making such determination, the Arbiter shall be functioning as an expert and not as an arbitrator), based solely on written submissions amount withdrawn by the Acquiror Agent and the Stockholders’ Representative, and not by independent review, only those issues paid to Buyer in dispute and shall render a written report as to the resolution of the dispute and the resulting computation of the Purchase Price Adjustment which shall be conclusive and binding on the parties. All proceedings conducted by the Arbiter shall take place in San Jose, California. In resolving any disputed item, the Arbiter (x) shall be bound by accordance with the provisions of this Section 1.7 and (y) may not assign a value to any item greater than the greatest value for such items claimed by either party or less than the smallest value for such items claimed by either party. The fees, costs and expenses of the Arbiter shall be allocated to and borne by the Acquiror and the Selling Stockholders based on the inverse of the percentage that the Arbiter’s determination (before such allocation) bears to the total amount of the total items in dispute as originally submitted to the Arbiter. For example, if the Stockholders’ Representative decides to submit a dispute hereunder to arbitration, and the Arbiter ultimately awards 70% of the amount disputed by the Stockholders’ Representative, then the Selling Stockholders will bear 30% of the fees, costs and expenses of the Arbiter (in addition to their own fees, costs and expenses2.6(d), and the Acquiror will bear 70% of the Arbiter’s fees, costs and expenses (in addition to its own fees, costs and expenses).
(d) Upon final determination of the Purchase Price Adjustment, if the Purchase Price as adjusted by the Purchase Price Adjustment is less than the Purchase Price as adjusted by the Estimated Purchase Price Adjustment (the “Purchase Price Excess”), the Escrow Selling Stockholders shall pay to the Acquiror the amount, if any, by which the Purchase Price Excess exceeds the Holdback, together with interest thereon from the Closing Date to the date of payment thereof as determined below, by giving the requisite release instructions to the Escrow Agent to permit the Acquiror to receive such amount of cash out of the Warranty Escrow Fund, Any amounts payable by the Escrow Selling Stockholders under this clause shall be payable solely out of the Warranty Escrow Fund. The Selling Stockholders’ Representative, on behalf of the Escrow Selling Stockholders, shall give the requisite release instructions to the Escrow Agent promptly, but no later than five (5) business days after such final determination. If the Purchase Price Excess is less than the Holdback, the Acquiror shall pay to the Selling Stockholders or the Paying Agent, on behalf of Selling Stockholders, the amount of such difference in cash, together with interest thereon from the Closing Date to the date of payment thereof as determined below. Any such payment by the Acquiror shall be made promptly, but no later than five (5) business days after such final determination; provided that 10% of the cash to otherwise be paid to the Selling Stockholders shall be deposited into the Warranty Escrow Fund (subject to Section 1.6(d)). Each Selling Stockholder will receive their Closing Consideration Proportionate Interest in any such remaining cash and stock payable to them.
(e) Upon final determination of the Purchase Price Adjustment, if the Purchase Price as adjusted by the Purchase Price Adjustment is more than the Purchase Price as adjusted by the Estimated Purchase Price Adjustment, the Acquiror shall pay in cash to the Selling Stockholders or the Paying Agent, on behalf of the Selling Stockholders, the sum of (A) the amount of such difference and (B) the Holdback, promptly, but no later than five (5) business days after such final determination, together with interest thereon from the Closing Date to the date of payment thereof as determined below; provided that 10% of the cash to otherwise be paid to the Selling Stockholders shall be deposited into the Warranty Escrow Fund (subject to Section 1.6(d)). Each Selling Stockholder will receive their Closing Consideration Proportionate Interest in any such remaining cash and stock payable to them.
(f) For the purposes of Any payments made pursuant to this Section 1.7, interest will 2.6 shall be payable at made within five (5) Business Days after the “prime” rate, as announced final determination thereof by The Wall Street Journal, Eastern Edition, from time wire transfer of immediately available funds to time to be an account designated in effect, calculated based on a 365 day year and writing by the actual number of days elapsedapplicable payee or payees.
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Samples: Equity Purchase Agreement (Granite Construction Inc)
Purchase Price True-Up. (a) Following the Closing, the Purchase Price shall be adjusted as provided herein to reflect the difference between the Estimated Purchase Price Adjustment and the Purchase Price Adjustment, as finally determined pursuant to this Section 1.7. Within 60 90 days following after the Closing Date, the Acquiror Buyer shall prepare and deliver to the Stockholders’ Representative Seller a statement (the “Closing Balance Sheet, Statement”) setting forth the Buyer’s calculation of the Closing Working Capital AdjustmentAmount, Net Cashthe Closing Cash Amount, Transfer Taxes and Company the Closing Indebtedness Amount, the aggregate amount of the actual Change of Control Payments, the aggregate amount of the actual Transaction Expenses together with a calculation of and the Purchase Price Adjustment (derived Price, and the deviation of such amounts from those included in the Closing Balance Sheet and/or such other books Estimates and records of the Company and its Subsidiaries as are applicable).Calculations;
(b) Subject On the 30th day following the delivery of the Closing Statement to the execution Seller, the Closing Statement shall become final and binding on all parties hereto unless, on or prior to such 30th day, the Seller shall have delivered to the Buyer a written statement (a “Statement of customary auditors’ confidentiality and liability release undertakings (covering “secret d’affairesObjections”) by describing in reasonable detail the Stockholders’ Representative nature, amount and basis of each objection of the Seller to the Closing Statement (and any amount or calculation not so objected to shall become final and binding on all parties hereto). During such 30-day period, the Seller and its behalf and on behalf of its representatives advisors (including its auditors), their accountants) shall be permitted to review the Acquiror shall provide working papers of the Stockholders’ Representative Buyer and its auditors with full and prompt access advisors (including their accountants) relating to the books and records and relevant personnel of the Acquiror, the Company and its Subsidiaries and their statutory auditors for the purpose of reviewing the Closing Balance Sheet, the Working Capital Adjustment, the Net Cash, the Transfer Taxes and the Company Transaction Expenses. Such access shall be (x) during normal business hours and upon reasonable advance notice, and (y) up until the final determination of the Purchase Price Adjustment. The Selling Stockholders shall use such access for the sole purpose of the determination of the Purchase Price Adjustment. In addition, the Selling Stockholders’ auditors shall have full access to the accounting books and records, work papers, schedules or additional documents prepared, used or otherwise generated by the statutory auditors of the Company and its SubsidiariesStatement.
(c) The Closing Balance Sheet If the Seller timely delivers a Statement of Objections, all objections set forth therein shall be resolved as set forth below. In connection therewith, the Buyer and calculation its advisors (including their accountants) shall be permitted to review the working papers of the Purchase Price Adjustment delivered by Seller and its advisors (including their accountants) relating to such objections.
(i) The Buyer and the Acquiror Seller shall first use their reasonable best efforts to resolve such objections in good faith.
(ii) If the Stockholders’ Representative shall be conclusive Buyer and binding upon all the parties Seller are able to this Agreement unless the Stockholders’ Representative, resolve such objections within sixty (60) 30 days after delivery thereofof such Statement of Objections, notifies the Acquiror in writing that the Stockholders’ Representative disputes any of the amounts set forth therein, specifying the nature of the dispute Buyer and the basis therefor. The Stockholders’ Representative Seller, within such 30-day period, shall jointly prepare and sign a statement setting forth in reasonable detail the Acquiror shall calculation of all amounts included in good faith attempt to resolve any dispute and, if they so resolve all disputesthe Closing Estimates and Calculations (including the Closing Working Capital Amount, the Closing Balance Sheet Cash Amount, the Closing Indebtedness Amount, the aggregate amount of the actual Change of Control Payments, the aggregate amount of the actual Transaction Expenses and the Purchase Price AdjustmentPrice), as amended to and the extent necessary to reflect deviation of such amounts from those included in the resolution of the disputeClosing Estimates and Calculations, which such calculations shall be conclusive final and binding on all of the parties to this Agreement. hereto.
(iii) If the Stockholders’ Representative Buyer and the Acquiror Seller do not reach agreement a resolution of all objections set forth in resolving the dispute such Statement of Objections within twenty (20) calendar 30 days after notice is given by the Stockholders’ Representative to the Acquiror pursuant to the second preceding sentencedelivery of such Statement of Objections, the parties shall submit the dispute to a mutually satisfactory partner in the San Jxxx office of the accounting firm of Deloitte & Touche LLP or, if no partner at such firm will act, to a partner at such other nationally recognized independent accounting firm which is mutually agreeable to the Stockholders’ Representative Buyer and the Acquiror Seller shall, within 15 days after the expiration of such 30-day period, (A) jointly prepare and sign a statement setting forth those objections (if any) that the “Arbiter”) for resolution. If the Stockholders’ Representative Buyer and the Acquiror cannot agree on Seller have resolved and the selection resolution of a partner at an independent accounting firm to act as Arbitersuch objections, the parties shall resolve such dispute through arbitration conducted in accordance with the rules of the American Arbitration Association with a single arbitrator to act as the Arbiter, who’s decision which resolutions shall be conclusive final and binding on all parties hereto, (B) jointly prepare and sign a statement setting forth those objections which remain unresolved (collectively, the “Unresolved Objections”), and (C) jointly engage the Neutral Accountant to resolve the Unresolved Objections.
(iv) The Buyer and the Seller shall jointly submit to the Neutral Accountant, within five days after the date of the parties engagement of the Neutral Accountant, a copy of the Closing Statement, a copy of the Statement of Objections delivered by the Seller, and the joint statement of Unresolved Objections referred to this Agreementin paragraph (iii) above. PromptlyEach of the Buyer and the Seller shall submit to the Neutral Accountant (with a copy delivered to the other on the same day), but no later than twenty (20) calendar within 15 days after acceptance the date of his the engagement of the Neutral Accountant, a memorandum (which may include supporting exhibits) setting forth their respective positions on the Unresolved Objections. Each of the Buyer and the Seller 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 the Buyer nor the Seller may present any additional information or her appointment as Arbiterarguments to the Neutral Accountant, either orally or in writing.
(v) The Buyer and the Seller shall use reasonable best efforts to cause the Neutral Accountant to (A) ensure that the scope of its review and authority shall be limited to solely resolving the Unresolved Objections, (B) act in accordance with this Agreement and (C) issue a written ruling which sets forth the resolution of each Unresolved Objection and includes a statement setting forth in reasonable detail the calculations of all amounts included in the Closing Estimates and Calculations (including the Closing Working Capital Amount, the Arbiter shall determine (it being understood that in making such determinationClosing Cash Amount, the Arbiter Closing Indebtedness Amount, the aggregate amount of the actual Change of Control Payments, the aggregate amount of the actual Transaction Expenses and the Purchase Price), and the deviation of such amounts from those included in the Closing Estimates and Calculations, 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 Seller and by the Buyer. In resolving the Unresolved Objections, the Neutral Accountant shall be functioning as an expert and not as an arbitrator), based solely on .
(vi) The Neutral Accountant shall be bound by a mutually agreeable confidentiality agreement. The Seller and the Buyer shall use their commercially reasonable efforts to cause the Neutral Accountant to render a written submissions decision resolving the matters submitted to it within 30 days following the submission thereof. The resolution by the Acquiror Neutral Accountant of the Unresolved Objections shall be final and binding upon all parties hereto and shall not be subject to review or appeal, absent a showing of fraud. The Buyer and the Stockholders’ RepresentativeSeller agree that the procedure set forth in this Section 2.5 for resolving disputes with respect to the Closing Statement shall be the sole and exclusive method for resolving any such disputes, provided, that no party shall be prohibited from instituting any Action to enforce the resolution of the Neutral Accountant in any court of competent jurisdiction. The other party’s only defense to such a request for enforcement shall be fraud by or upon the Neutral Accountant. Absent such fraud, such other party shall reimburse the party seeking enforcement for all of its expenses related to the enforcement of the Neutral Accountant’s determination.
(d) The fees and not expenses of the Neutral Accountant incurred pursuant to this Section 2.5 shall be borne by independent reviewthe Seller and the Buyer in inverse proportion as they may prevail on the matters resolved by the Neutral Accountant, only those issues which proportionate allocation shall be calculated on an aggregate basis based on the relative dollar values of the amounts in dispute and shall render a written report as to be determined by the resolution Neutral Accountant at the time the determination of such firm is rendered on the merits of the dispute and the resulting computation of the Purchase Price Adjustment which shall be conclusive and binding on the parties. All proceedings conducted by the Arbiter shall take place in San Jose, California. In resolving any disputed item, the Arbiter (x) shall be bound by the provisions of this Section 1.7 and (y) may not assign a value to any item greater than the greatest value for such items claimed by either party or less than the smallest value for such items claimed by either partymatters submitted. The fees, costs and expenses of the Arbiter accountants, attorneys and other representatives of each party incurred in connection with the matters described in this Section 2.5 shall be allocated to and borne by the Acquiror and the Selling Stockholders based on the inverse of the percentage that the Arbiter’s determination (before such allocation) bears to the total amount of the total items in dispute as originally submitted to the Arbiter. For example, if the Stockholders’ Representative decides to submit a dispute hereunder to arbitration, and the Arbiter ultimately awards 70% of the amount disputed by the Stockholders’ Representative, then the Selling Stockholders will bear 30% of the fees, costs and expenses of the Arbiter (in addition to their own fees, costs and expenses), and the Acquiror will bear 70% of the Arbiter’s fees, costs and expenses (in addition to its own fees, costs and expenses)party.
(de) Upon final determination Each of the Purchase Price AdjustmentSeller and the Buyer shall reasonably assist, if and shall cause its Affiliates to reasonably 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 2.5. Each of the Seller and the Buyer shall afford to the other party and its advisors (including its accountants), reasonable access, upon reasonable notice during normal business hours, to the personnel, properties, books and records of such first party and its Affiliates to the extent relevant to such matters; provided, that, notwithstanding anything to the contrary in this Section 2.5, such access shall not (i) unreasonably disrupt the normal operations of such first party or any of its Affiliates, or (ii) include access to materials that are subject to the attorney client privilege of the other party.
(f) If the Purchase Price Price, as adjusted by the Purchase Price Adjustment finally determined pursuant to this Section 2.5, is less than the Purchase Price as adjusted by the Estimated Purchase Price Adjustment (Price, then the “Purchase Price Excess”)Seller shall, the Escrow Selling Stockholders shall pay to the Acquiror the amount, if any, by which the Purchase Price Excess exceeds the Holdback, together with interest thereon from the Closing Date to the date within three Business Days of payment thereof as determined below, by giving the requisite release instructions to the Escrow Agent to permit the Acquiror to receive such amount of cash out of the Warranty Escrow Fund, Any amounts payable by the Escrow Selling Stockholders under this clause shall be payable solely out of the Warranty Escrow Fund. The Selling Stockholders’ Representative, on behalf of the Escrow Selling Stockholders, shall give the requisite release instructions to the Escrow Agent promptly, but no later than five (5) business days after such final determination. If the Purchase Price Excess is less than the Holdback, the Acquiror shall pay by wire transfer of immediately available funds to the Selling Stockholders or Buyer (pursuant to wire instructions delivered to the Paying Agent, on behalf Seller at least two Business Days in advance of Selling Stockholderssuch payment), the amount of such difference in cashdifference. If the Seller fails to make any payment required pursuant to this Section 2.5(f), together with interest thereon from (i) the Closing Date Buyer shall have the option, by instruction to the date of payment thereof as determined below. Any Escrow Agent, to have the Escrow Agent release or distribute such payment by amount due and owing to the Acquiror Buyer under this Section 2.5(f) and (ii) if the Escrow Agent makes such distribution, the Seller shall be made promptlyobligated to replenish the Escrow Account in the amount so distributed to the Buyer. If the Purchase Price, but no later as finally determined pursuant to this Section 2.5, is greater than five (5) business days after the Estimated Purchase Price, then the Buyer shall, within three Business Days of such final determination; provided that 10% , pay by wire transfer of the cash to otherwise be paid immediately available funds to the Selling Stockholders shall be deposited into the Warranty Escrow Fund Seller (subject pursuant to Section 1.6(d)). Each Selling Stockholder will receive their Closing Consideration Proportionate Interest in any such remaining cash and stock payable to them.
(e) Upon final determination of the Purchase Price Adjustment, if the Purchase Price as adjusted by the Purchase Price Adjustment is more than the Purchase Price as adjusted by the Estimated Purchase Price Adjustment, the Acquiror shall pay in cash wire instructions delivered to the Selling Stockholders or the Paying AgentBuyer at least two Business Days in advance of such payment), on behalf of the Selling Stockholders, the sum of (A) the amount of such difference and (B) the Holdback, promptly, but no later than five (5) business days after such final determination, together with interest thereon from the Closing Date to the date of payment thereof as determined below; provided that 10% of the cash to otherwise be paid to the Selling Stockholders shall be deposited into the Warranty Escrow Fund (subject to Section 1.6(d)). Each Selling Stockholder will receive their Closing Consideration Proportionate Interest in any such remaining cash and stock payable to themdifference.
(f) For the purposes of this Section 1.7, interest will be payable at the “prime” rate, as announced by The Wall Street Journal, Eastern Edition, from time to time to be in effect, calculated based on a 365 day year and the actual number of days elapsed.
Appears in 1 contract
Purchase Price True-Up. (a) Following the ClosingAs promptly as possible, the Purchase Price shall be adjusted as provided herein to reflect the difference between the Estimated Purchase Price Adjustment and the Purchase Price Adjustment, as finally determined pursuant to this Section 1.7. Within 60 days following the Closing Date, the Acquiror shall deliver to the Stockholders’ Representative the Closing Balance Sheet, the calculation of the Working Capital Adjustment, Net Cash, Transfer Taxes and Company Transaction Expenses together with a calculation of the Purchase Price Adjustment (derived from the Closing Balance Sheet and/or such other books and records of the Company and its Subsidiaries as are applicable).
(b) Subject to the execution of customary auditors’ confidentiality and liability release undertakings (covering “secret d’affaires”) by the Stockholders’ Representative on its behalf and on behalf of its representatives (including its auditors), the Acquiror shall provide the Stockholders’ Representative and its auditors with full and prompt access to the books and records and relevant personnel of the Acquiror, the Company and its Subsidiaries and their statutory auditors for the purpose of reviewing the Closing Balance Sheet, the Working Capital Adjustment, the Net Cash, the Transfer Taxes and the Company Transaction Expenses. Such access shall be (x) during normal business hours and upon reasonable advance notice, and (y) up until the final determination of the Purchase Price Adjustment. The Selling Stockholders shall use such access for the sole purpose of the determination of the Purchase Price Adjustment. In addition, the Selling Stockholders’ auditors shall have full access to the accounting books and records, work papers, schedules or additional documents prepared, used or otherwise generated by the statutory auditors of the Company and its Subsidiaries.
(c) The Closing Balance Sheet and calculation of the Purchase Price Adjustment delivered by the Acquiror to the Stockholders’ Representative shall be conclusive and binding upon all the parties to this Agreement unless the Stockholders’ Representative, but in any event within sixty (60) days after the Closing Date, the Purchaser will deliver to the Sellers a statement showing the calculation of the Closing Net Working Capital, Closing Cash, Closing Indebtedness and Closing Transaction Expenses and a calculation of the Closing Proceeds (the “Preliminary Closing Statement”). The Closing Net Working Capital, Closing Cash, Closing Indebtedness and Closing Transaction Expenses shall each be determined on a consolidated basis in accordance with the definitions set forth in this Agreement and the Agreed Accounting Principles. The parties agree that the purpose of determining the Closing Net Working Capital, Closing Cash, Closing Indebtedness, Closing Transaction Expenses and the related purchase price adjustments contemplated by this Section 1.5(a) is to measure changes in Closing Net Working Capital and the levels of Closing Cash, Closing Indebtedness and Closing Transaction Expenses, and such processes are not intended to (i) permit the introduction of different judgments, accounting methods, policies, principles, practices, procedures, classifications or estimation methodologies for the purpose of determining the Closing Net Working Capital, Closing Cash, Closing Indebtedness or Closing Transaction Expenses or (ii) adjust for errors or omissions that may be found with respect to the Latest Balance Sheet or any other balance sheet referenced in Section 3.7 or any inconsistencies between the Latest Balance Sheet, the Preliminary Closing Statement or any other balance sheet referenced in Section 3.7 and the Agreed Accounting Principles. After delivery of the Preliminary Closing Statement, the Purchaser shall, for a period of no more than forty-five (45) days (“Review Period”), give the Sellers and their Representatives reasonable access, at dates and times mutually agreed upon by Purchaser and Sellers and subject to such access to review the Purchaser’s and each Company Group Member’s books and records and work papers related to the preparation of the Preliminary Closing Statement. During the Review Period, the Sellers and their Representatives may make reasonable inquiries of the Purchaser, the Company Group Members and their respective accountants regarding questions concerning or disagreements with the Preliminary Closing Statement arising in the course of its review thereof, notifies and the Acquiror Purchaser shall use its, and shall cause the Company Group Members to use their, commercially reasonable efforts to cause any such accountants to cooperate with and respond to such inquiries. If the Sellers have any objections to the Preliminary Closing Statement after the Review Period, the Sellers shall deliver to the Purchaser a statement setting forth its objections thereto (an “Objections Statement”). If an Objections Statement is not delivered to the Purchaser within forty-five (45) days after delivery of the Preliminary Closing Statement, the Preliminary Closing Statement shall be final, binding and non-appealable by the parties hereto; provided that, in writing that the Stockholders’ Representative disputes event the Purchaser or any of the Company Group Members do not provide any papers or documents reasonably requested by the Sellers or their Representatives within five (5) Business Days of request therefor (or such shorter period as may remain in such forty-five (45) day period), such forty-five (45) day period will be extended by one day for each additional day required for the Purchaser or the Company Group Members to fully respond to such request; provided, further, that such forty-five (45) day period will be extended for no more than five (5) Business Days following the date on which the Purchaser and the Company Group Members have fully responded to such request. Sellers and the Purchaser shall negotiate in good faith to resolve any such objections, but if they do not reach a final resolution within thirty (30) days after the delivery of the Objections Statement, Sellers and the Purchaser shall submit such dispute to a national accounting firm with experience valuing companies engaged in the Business mutually agreed to by the Purchaser and Sellers, which shall have certified to the Purchaser and the Sellers that it is an independent firm without any prior relationship with the Purchaser or the Sellers or any of their respective Subsidiaries; provided that, if such firm is unwilling or unable to serve in such role, the Purchaser and Sellers shall, as promptly as reasonably practicable, agree upon a substitute accounting firm with such experience that shall likewise certify its independence to the Purchaser and Sellers (the “Dispute Resolution Firm”). Any further submissions to the Dispute Resolution Firm must be written and delivered to each party to the dispute. The Dispute Resolution Firm shall consider only those items and amounts that are identified in the Objections Statement as being items that Sellers and the Purchaser are unable to resolve. The Dispute Resolution Firm’s determination will be based solely on the definitions of Closing Net Working Capital, Closing Cash, Closing Indebtedness, Closing Transaction Expenses and the Closing Proceeds, as applicable, contained herein. Sellers and the Purchaser shall use their commercially reasonable efforts to cause the Dispute Resolution Firm to resolve all disagreements as soon as practicable and in any event within forty-five (45) days after the submission of any dispute. Further, the Dispute Resolution Firm’s determination shall be based solely on the presentations by the Purchaser and the Sellers that are in accordance with the terms and procedures set forth thereinin this Agreement (i.e., specifying not on the nature basis of an independent review). The resolution of the dispute by the Dispute Resolution Firm shall be final, binding and non-appealable on the basis thereforparties hereto, absent manifest error. The Stockholders’ Representative costs and expenses of the Acquiror Dispute Resolution Firm shall be allocated 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 in good faith attempt the presentation to resolve any dispute andthe Dispute Resolution Firm. For example, if they so resolve all disputesSellers submit an Objections Statement for One Thousand Dollars ($1,000), and if the Closing Balance Sheet Purchaser contests only Five Hundred Dollars ($500) of the amount claimed by Sellers, and if the Purchase Price AdjustmentDispute Resolution Firm ultimately resolves the dispute by awarding Sellers Three Hundred Dollars ($300) of the Five Hundred Dollars ($500) contested, as amended then the costs and expenses of the Dispute Resolution Firm will be allocated sixty percent (60%) (i.e., 300/500) to the extent necessary Purchaser and forty percent (40%) (i.e., 200/500) to Sellers. The Preliminary Closing Statement shall be revised as appropriate to reflect the resolution of the disputeany objections thereto pursuant to this Section 1.5, and, as so revised, such Preliminary Closing Statement shall be conclusive and binding on all of deemed to set forth the parties to this Agreement. If the Stockholders’ Representative Closing Net Working Capital, Closing Cash, Closing Indebtedness, Closing Transaction Expenses and the Acquiror do not reach agreement Closing Proceeds, in resolving the dispute within twenty (20) calendar days after notice is given by the Stockholders’ Representative to the Acquiror pursuant to the second preceding sentenceeach case, the parties shall submit the dispute to a mutually satisfactory partner in the San Jxxx office of the accounting firm of Deloitte & Touche LLP or, if no partner at such firm will act, to a partner at such other nationally recognized independent accounting firm which is mutually agreeable to the Stockholders’ Representative and the Acquiror (the “Arbiter”) for resolution. If the Stockholders’ Representative and the Acquiror cannot agree on the selection of a partner at an independent accounting firm to act as Arbiter, the parties shall resolve such dispute through arbitration conducted in accordance with the rules of the American Arbitration Association with a single arbitrator to act as the Arbiter, who’s decision shall be conclusive and binding on all of the parties to this Agreement. Promptly, but no later than twenty (20) calendar days after acceptance of his or her appointment as Arbiter, the Arbiter shall determine (it being understood that in making such determination, the Arbiter shall be functioning as an expert and not as an arbitrator), based solely on written submissions by the Acquiror and the Stockholders’ Representative, and not by independent review, only those issues in dispute and shall render a written report as to the resolution of the dispute and the resulting computation of the Purchase Price Adjustment which shall be conclusive and binding on the parties. All proceedings conducted by the Arbiter shall take place in San Jose, California. In resolving any disputed item, the Arbiter (x) shall be bound by the provisions of this Section 1.7 and (y) may not assign a value to any item greater than the greatest value for such items claimed by either party or less than the smallest value for such items claimed by either party. The fees, costs and expenses of the Arbiter shall be allocated to and borne by the Acquiror and the Selling Stockholders based on the inverse of the percentage that the Arbiter’s determination (before such allocation) bears to the total amount of the total items in dispute as originally submitted to the Arbiter. For example, if the Stockholders’ Representative decides to submit a dispute hereunder to arbitration, and the Arbiter ultimately awards 70% of the amount disputed by the Stockholders’ Representative, then the Selling Stockholders will bear 30% of the fees, costs and expenses of the Arbiter (in addition to their own fees, costs and expenses), and the Acquiror will bear 70% of the Arbiter’s fees, costs and expenses (in addition to its own fees, costs and expenses)purposes hereunder.
(d) Upon final determination of the Purchase Price Adjustment, if the Purchase Price as adjusted by the Purchase Price Adjustment is less than the Purchase Price as adjusted by the Estimated Purchase Price Adjustment (the “Purchase Price Excess”), the Escrow Selling Stockholders shall pay to the Acquiror the amount, if any, by which the Purchase Price Excess exceeds the Holdback, together with interest thereon from the Closing Date to the date of payment thereof as determined below, by giving the requisite release instructions to the Escrow Agent to permit the Acquiror to receive such amount of cash out of the Warranty Escrow Fund, Any amounts payable by the Escrow Selling Stockholders under this clause shall be payable solely out of the Warranty Escrow Fund. The Selling Stockholders’ Representative, on behalf of the Escrow Selling Stockholders, shall give the requisite release instructions to the Escrow Agent promptly, but no later than five (5) business days after such final determination. If the Purchase Price Excess is less than the Holdback, the Acquiror shall pay to the Selling Stockholders or the Paying Agent, on behalf of Selling Stockholders, the amount of such difference in cash, together with interest thereon from the Closing Date to the date of payment thereof as determined below. Any such payment by the Acquiror shall be made promptly, but no later than five (5) business days after such final determination; provided that 10% of the cash to otherwise be paid to the Selling Stockholders shall be deposited into the Warranty Escrow Fund (subject to Section 1.6(d)). Each Selling Stockholder will receive their Closing Consideration Proportionate Interest in any such remaining cash and stock payable to them.
(e) Upon final determination of the Purchase Price Adjustment, if the Purchase Price as adjusted by the Purchase Price Adjustment is more than the Purchase Price as adjusted by the Estimated Purchase Price Adjustment, the Acquiror shall pay in cash to the Selling Stockholders or the Paying Agent, on behalf of the Selling Stockholders, the sum of (A) the amount of such difference and (B) the Holdback, promptly, but no later than five (5) business days after such final determination, together with interest thereon from the Closing Date to the date of payment thereof as determined below; provided that 10% of the cash to otherwise be paid to the Selling Stockholders shall be deposited into the Warranty Escrow Fund (subject to Section 1.6(d)). Each Selling Stockholder will receive their Closing Consideration Proportionate Interest in any such remaining cash and stock payable to them.
(f) For the purposes of this Section 1.7, interest will be payable at the “prime” rate, as announced by The Wall Street Journal, Eastern Edition, from time to time to be in effect, calculated based on a 365 day year and the actual number of days elapsed.
Appears in 1 contract
Samples: Purchase Agreement
Purchase Price True-Up. (a) Following the Closing, the Purchase Price shall be adjusted as provided herein to reflect the difference between the Estimated Purchase Price Adjustment and the Purchase Price Adjustment, as finally determined pursuant to this Section 1.7. Within 60 90 days following after the Closing Date, the Acquiror Buyer shall prepare and deliver to the Stockholders’ Sellers Representative a statement (the “Closing Statement”) setting forth in reasonable detail the Buyer’s calculation of all amounts included in the Closing Balance SheetEstimates and Calculations (including Closing Non-Cash Working Capital, Closing Cash, Closing Indebtedness, Adjusted Closing Specified Indebtedness, Adjusted Closing Indebtedness, Change of Control Payments, Third Party Expenses, the calculation Closing EPU Obligation, Pre-Closing Severance Payments and the Purchase Price), and the deviation of such amounts from those included in the Working Capital AdjustmentClosing Estimates and Calculations (provided, Net Cash, Transfer Taxes and Company Transaction Expenses together with that the Buyer shall not have to provide a calculation of Closing Capitalization Schedule or otherwise determine how the Purchase Price Adjustment (derived from is allocated among the Closing Balance Sheet and/or such other books Sellers, the EPU Holders and records of the Company and its Subsidiaries as are applicableWarrant Holders).
(b) Subject On the 30th day following the delivery of the Closing Statement to the execution Sellers Representative, the Closing Statement shall become final and binding on all parties hereto unless, on or prior to such 30th day, the Sellers Representative shall have delivered to the Buyer a statement describing in reasonable detail the nature, amount and basis of customary auditors’ confidentiality each objection of the Sellers Representative to the Closing Statement (and liability release undertakings (covering “secret d’affaires”) by any amount or calculation not so objected to shall become final and binding on all parties hereto). During such 30-day period, the Stockholders’ Sellers Representative on and its behalf and on behalf of its representatives advisors (including its auditors), accountants) shall be permitted to review the Acquiror shall provide working papers of the Stockholders’ Representative Buyer and its auditors with full and prompt access advisors (including its accountants) relating to the books and records and relevant personnel of the Acquiror, the Company and its Subsidiaries and their statutory auditors for the purpose of reviewing the Closing Balance Sheet, the Working Capital Adjustment, the Net Cash, the Transfer Taxes and the Company Transaction Expenses. Such access shall be (x) during normal business hours and upon reasonable advance notice, and (y) up until the final determination of the Purchase Price Adjustment. The Selling Stockholders shall use such access for the sole purpose of the determination of the Purchase Price Adjustment. In addition, the Selling Stockholders’ auditors shall have full access to the accounting books and records, work papers, schedules or additional documents prepared, used or otherwise generated by the statutory auditors of the Company and its SubsidiariesStatement.
(c) The If the Sellers Representative timely objects to the Closing Balance Sheet Statement, such objections shall be resolved as set forth below. In connection therewith, the Buyer and calculation its advisors (including its accountants) shall be permitted to review the working papers of the Purchase Price Adjustment delivered by Sellers Representative and its advisors (including their accountants) relating to such objections.
(i) The Buyer and the Acquiror to the Stockholders’ Sellers Representative shall be conclusive first use their reasonable best efforts to resolve such objections in good faith.
(ii) If the Buyer and binding upon all the parties Sellers Representative are able to this Agreement unless resolve such objections within 30 days after delivery of such statement of objections, the Stockholders’ Buyer and the Sellers Representative, within sixty such 30-day period, shall jointly prepare and sign a statement setting forth in reasonable detail the calculation of all amounts included in the Closing Estimates and Calculations (60) days after delivery thereofincluding Closing Non-Cash Working Capital, notifies the Acquiror in writing that the Stockholders’ Representative disputes any Closing Cash, Closing Indebtedness, Adjusted Closing Specified Indebtedness, Adjusted Closing Indebtedness, Change of the amounts set forth thereinControl Payments, specifying the nature of the dispute and the basis therefor. The Stockholders’ Representative and the Acquiror shall in good faith attempt to resolve any dispute and, if they so resolve all disputesThird Party Expenses, the Closing Balance Sheet EPU Obligation, Pre-Closing Severance Payments and the Purchase Price AdjustmentPrice), as amended to and the extent necessary to reflect deviation of such amounts from those included in the resolution of the disputeClosing Estimates and Calculations, which such calculations shall be conclusive final and binding on all of the parties to this Agreement. hereto.
(iii) If the Stockholders’ Representative Buyer and the Acquiror Sellers Representative do not reach agreement a resolution of all objections set forth in resolving the dispute such statement of objections within twenty (20) calendar 30 days after notice is given by the Stockholders’ Representative to the Acquiror pursuant to the second preceding sentencedelivery of such statement of objections, the parties shall submit the dispute to a mutually satisfactory partner in the San Jxxx office of the accounting firm of Deloitte & Touche LLP or, if no partner at such firm will act, to a partner at such other nationally recognized independent accounting firm which is mutually agreeable to the Stockholders’ Representative Buyer and the Acquiror Sellers Representative shall, within 15 days after the expiration of such 30-day period, (A) jointly prepare and sign a statement setting forth those objections (if any) that the “Arbiter”) for resolution. If the Stockholders’ Representative Buyer and the Acquiror cannot agree on Sellers Representative have resolved and the selection resolution of a partner at an independent accounting firm to act as Arbitersuch objections, the parties shall resolve such dispute through arbitration conducted in accordance with the rules of the American Arbitration Association with a single arbitrator to act as the Arbiter, who’s decision which resolutions shall be conclusive final and binding on all parties hereto, (B) jointly prepare and sign a statement setting forth those objections which remain unresolved (collectively, the “Unresolved Objections”), and (C) jointly engage the Neutral Accountant to resolve the Unresolved Objections.
(iv) The Buyer and the Sellers Representative shall jointly submit to the Neutral Accountant, within 5 days after the date of the parties to this Agreement. Promptlyengagement of the Neutral Accountant, but no later than twenty (20) calendar days after acceptance a copy of his or her appointment as Arbiterthe Closing Statement, a copy of the Arbiter shall determine (it being understood that in making such determination, the Arbiter shall be functioning as an expert and not as an arbitrator), based solely on written submissions statement of objections delivered by the Acquiror and the Stockholders’ Sellers Representative, and the joint statement of Unresolved Objections referred to in paragraph (iii) above. Each of the Buyer and the Sellers Representative shall submit to the Neutral Accountant (with a copy delivered to the other on the same day), 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 the Buyer and the Sellers 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 independent reviewthe other. Unless requested by the Neutral Accountant in writing, only those issues neither the Buyer nor the Sellers Representative may present any additional information or arguments to the Neutral Accountant, either orally or in dispute writing.
(v) The Buyer and the Sellers Representative shall render use commercially reasonable efforts to cause the Neutral Accountant to (A) ensure the scope of its review and authority shall be limited to solely resolving the Unresolved Objections, (B) act in accordance with this Agreement, and (C) issue a written report as to ruling which sets forth the resolution of each Unresolved Objection and includes a statement setting forth in reasonable detail the dispute calculations of all amounts included in the Closing Estimates and Calculations (including Closing Non-Cash Working Capital, Closing Cash, Closing Indebtedness, Adjusted Closing Specified Indebtedness, Adjusted Closing Indebtedness, Change of Control Payments, Third Party Expenses, the Closing EPU Obligation, Pre-Closing Severance Payments and the resulting computation of the Purchase Price Adjustment which shall be conclusive and binding on the parties. All proceedings conducted by the Arbiter shall take place in San Jose, California. In resolving any disputed item, the Arbiter (x) shall be bound by the provisions of this Section 1.7 and (y) may not assign a value to any item greater than the greatest value for such items claimed by either party or less than the smallest value for such items claimed by either party. The fees, costs and expenses of the Arbiter shall be allocated to and borne by the Acquiror and the Selling Stockholders based on the inverse of the percentage that the Arbiter’s determination (before such allocation) bears to the total amount of the total items in dispute as originally submitted to the Arbiter. For example, if the Stockholders’ Representative decides to submit a dispute hereunder to arbitration, and the Arbiter ultimately awards 70% of the amount disputed by the Stockholders’ Representative, then the Selling Stockholders will bear 30% of the fees, costs and expenses of the Arbiter (in addition to their own fees, costs and expensesPrice), and the Acquiror will bear 70% deviation of such amounts from those included in the Closing Estimates and Calculations, each reflecting the Neutral Accountant’s resolution of the Arbiter’s feesUnresolved 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, costs which value shall be equal to one of, or between, the values proposed by the Sellers Representative and expenses (in addition to its own fees, costs and expenses)by the Buyer.
(dvi) Upon final determination of the Purchase Price Adjustment, if the Purchase Price as adjusted by the Purchase Price Adjustment is less than the Purchase Price as adjusted by the Estimated Purchase Price Adjustment (the “Purchase Price Excess”), the Escrow Selling Stockholders shall pay to the Acquiror the amount, if any, by which the Purchase Price Excess exceeds the Holdback, together with interest thereon from the Closing Date to the date of payment thereof as determined below, by giving the requisite release instructions to the Escrow Agent to permit the Acquiror to receive such amount of cash out of the Warranty Escrow Fund, Any amounts payable by the Escrow Selling Stockholders under this clause shall be payable solely out of the Warranty Escrow Fund. The Selling Stockholders’ Representative, on behalf of the Escrow Selling Stockholders, shall give the requisite release instructions to the Escrow Agent promptly, but no later than five (5) business days after such final determination. If the Purchase Price Excess is less than the Holdback, the Acquiror shall pay to the Selling Stockholders or the Paying Agent, on behalf of Selling Stockholders, the amount of such difference in cash, together with interest thereon from the Closing Date to the date of payment thereof as determined below. Any such payment by the Acquiror shall be made promptly, but no later than five (5) business days after such final determination; provided that 10% of the cash to otherwise be paid to the Selling Stockholders shall be deposited into the Warranty Escrow Fund (subject to Section 1.6(d)). Each Selling Stockholder will receive their Closing Consideration Proportionate Interest in any such remaining cash and stock payable to them.
(e) Upon final determination of the Purchase Price Adjustment, if the Purchase Price as adjusted by the Purchase Price Adjustment is more than the Purchase Price as adjusted by the Estimated Purchase Price Adjustment, the Acquiror shall pay in cash to the Selling Stockholders or the Paying Agent, on behalf of the Selling Stockholders, the sum of (A) the amount of such difference and (B) the Holdback, promptly, but no later than five (5) business days after such final determination, together with interest thereon from the Closing Date to the date of payment thereof as determined below; provided that 10% of the cash to otherwise be paid to the Selling Stockholders shall be deposited into the Warranty Escrow Fund (subject to Section 1.6(d)). Each Selling Stockholder will receive their Closing Consideration Proportionate Interest in any such remaining cash and stock payable to them.
(f) For the purposes of this Section 1.7, interest will be payable at the “prime” rate, as announced by The Wall Street Journal, Eastern Edition, from time to time to be in effect, calculated based on a 365 day year Sellers Representative and the actual number of Buyer shall use their commercially reasonable efforts to cause the Neutral Accountant to render a written decision resolving the matters submitted to it within 30 days elapsed.following the submission
Appears in 1 contract
