Purchase Price True-Up. (a) Within 90 days after the Closing Date, the Buyer shall prepare and deliver to the Sellers Representative a statement (the “Closing Statement”) setting forth in reasonable detail the Buyer’s calculation 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 Purchase Price), and the deviation of such amounts from those included in the Closing Estimates and Calculations (provided, that the Buyer shall not have to provide a Closing Capitalization Schedule or otherwise determine how the Purchase Price is allocated among the Sellers, the EPU Holders and the Warrant Holders). (b) On the 30th day following the delivery of the Closing Statement to the 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 each objection of the Sellers Representative 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 Sellers Representative and its advisors (including its accountants) shall be permitted to review the working papers of the Buyer and its advisors (including its accountants) relating to the Closing Statement. (c) If the Sellers Representative timely objects to the Closing Statement, such objections shall be resolved as set forth below. In connection therewith, the Buyer and its advisors (including its accountants) shall be permitted to review the working papers of the Sellers Representative and its advisors (including their accountants) relating to such objections. (i) The Buyer and the Sellers Representative shall first use their reasonable best efforts to resolve such objections in good faith. (ii) If the Buyer and the Sellers Representative are able to resolve such objections within 30 days after delivery of such statement of objections, the Buyer and the Sellers Representative, within 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 (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 Purchase Price), and the deviation of such amounts from those included in the Closing Estimates and Calculations, which such calculations shall be final and binding on all parties hereto. (iii) If the Buyer and the Sellers Representative do not reach a resolution of all objections set forth in such statement of objections within 30 days after delivery of such statement of objections, the Buyer and the 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 Buyer and the Sellers Representative have resolved and the resolution of such objections, which resolutions shall be 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 engagement of the Neutral Accountant, a copy of the Closing Statement, a copy of the statement of objections delivered by the 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 the other. Unless requested by the Neutral Accountant in writing, neither the Buyer nor the Sellers Representative may present any additional information or arguments to the Neutral Accountant, either orally or in writing. (v) The Buyer and the Sellers Representative shall 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 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 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 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 Sellers Representative and by the Buyer. (vi) The Sellers Representative and the 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 following the submission
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Purchase Price True-Up. (a) Within 90 days after the Closing Date, the Buyer shall prepare and deliver to the Sellers Representative a A written statement (the “Closing Final Purchase Price Calculation Statement”) setting forth 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 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 Purchase Price), and shall be delivered by the deviation Buyer to the Sellers’ Representative as soon as practicable following the Closing Date, but not later than sixty (60) calendar days after the last day of the month in which the Closing occurs, together with reasonable supporting detail. Prior to the delivery of any Notice of Disagreement, each party shall give the other party reasonable access to any data or materials not under the control of such amounts from those included in party necessary to prepare and/or evaluate the Closing Estimates and Calculations (provided, that the Buyer shall not have to provide a Closing Capitalization Schedule or otherwise determine how the Final Purchase Price is allocated among the Sellers, the EPU Holders and the Warrant Holders)Calculation Statement.
(b) On the 30th day following the delivery of the Closing Statement to the Sellers Representative, the Closing The Final Purchase Price Calculation Statement shall become final and binding on all the parties hereto unless, on or 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 Buyer prior to such 30th day, the Sellers Representative date. Any Notice of Disagreement shall have delivered to the Buyer a statement describing in reasonable detail the nature, amount and basis of each objection of the Sellers Representative 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 Sellers Representative and its advisors (including its accountants) shall be permitted to review the working papers of the Buyer and its advisors (including its accountants) relating to the Closing Statement.specify in
(c) If the Sellers Representative timely objects Purchase Price, as calculated pursuant to this Section 2.6, exceeds the Closing Statement, such objections shall be resolved as set forth below. In connection therewithEstimated Purchase Price (the amount thereof, the Buyer and its advisors (including its accountants) shall be permitted to review the working papers of the Sellers Representative and its advisors (including their accountants) relating to such objections.
“Excess”), then (i) The the Buyer shall cause to be paid to the Seller an amount equal to the Excess, and the Sellers Representative shall first use their reasonable best efforts to resolve such objections in good faith.
(ii) If the Buyer and the Sellers Sellers’ Representative are able shall deliver a joint written notice to resolve such objections within 30 days after delivery of such statement of objections, the Buyer and the Sellers Representative, within such 30-day period, shall jointly prepare and sign a statement setting forth in reasonable detail the calculation of Agent instructing it to pay all amounts included funds in the Closing Estimates and Calculations Adjustment Escrow Fund to the Seller.
(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 d) If the Purchase Price), and as calculated pursuant to this Section 2.6, is equal to the deviation of such amounts from those included in the Closing Estimates and CalculationsEstimated Purchase Price, which such calculations then no further payment shall be final and binding on all parties hereto.
(iii) If due to either the Buyer and or the Sellers Representative do not reach a resolution of all objections set forth in such statement of objections within 30 days after delivery of such statement of objectionsSeller under this Section 2.5, the Buyer and the 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) except that the Buyer and the Sellers Sellers’ Representative have resolved and shall deliver a joint written notice to the resolution 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 objections, which resolutions shall be final and binding on all parties hereto, (B) jointly prepare and sign a statement setting forth those objections which remain unresolved (collectivelydifference, the “Unresolved ObjectionsDeficiency”), 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 engagement of the Neutral Accountant, a copy of the Closing Statement, a copy of the statement of objections delivered by the Sellers Representative, and the joint statement of Unresolved Objections referred to in paragraph (iii) above. Each of then the Buyer and the Sellers Sellers’ Representative shall submit deliver joint written notice to the Neutral Accountant (with a copy delivered Agent instructing it to pay the Deficiency out of the Adjustment Escrow Fund to the other Buyer in accordance with the terms of the Escrow and Paying Agent Agreement. If the Adjustment 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 Beneficial Owners, severally and not jointly, in accordance with their pro rata share as set forth on Annex A. If Buyer elects to withdraw funds from the same day)Specific Indemnity Escrow Amount, Seller will, within 15 days three (3) Business Days after the date written notice of the engagement of the Neutral Accountantsuch election, 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 deliver to the Neutral Accountant (with a copy delivered to Agent, by wire transfer of immediately available funds, 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 amount withdrawn by the other. Unless requested by Agent and paid to Buyer in accordance with the Neutral Accountant in writing, neither the Buyer nor the Sellers Representative may present any additional information or arguments to the Neutral Accountant, either orally or in writingprovisions of this Section 2.6(d).
(vf) The Buyer and the Sellers Representative shall use commercially reasonable efforts Any payments made pursuant to cause the Neutral Accountant to (A) ensure the scope of its review and authority this Section 2.6 shall be limited made within five (5) Business Days after the final determination thereof by wire transfer of immediately available funds to solely resolving the Unresolved Objections, (B) act an account designated 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 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 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 writing by the Sellers Representative and by the Buyerapplicable payee or payees.
(vi) The Sellers Representative and the 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 following the submission
Appears in 1 contract
Samples: Equity Purchase Agreement (Granite Construction Inc)
Purchase Price True-Up. (a) Within 90 days after the Closing Date, the Buyer shall prepare and deliver to the Sellers Representative Seller a statement (the “Closing Statement”) setting forth in reasonable detail the Buyer’s calculation of all amounts included in the Closing Estimates and Calculations (including Working Capital Amount, the Closing Non-Cash Working CapitalAmount, the Closing CashIndebtedness Amount, Closing Indebtedness, Adjusted Closing Specified Indebtedness, Adjusted Closing Indebtedness, the aggregate amount of the actual Change of Control Payments, Third Party Expenses, the Closing EPU Obligation, Pre-Closing Severance Payments 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 (provided, that the Buyer shall not have to provide a Closing Capitalization Schedule or otherwise determine how the Purchase Price is allocated among the Sellers, the EPU Holders and the Warrant Holders).Calculations;
(b) On the 30th day following the delivery of the Closing Statement to the Sellers RepresentativeSeller, the Closing Statement shall become final and binding on all parties hereto unless, on or prior to such 30th day, the Sellers Representative Seller shall have delivered to the Buyer a written statement (a “Statement of Objections”) describing in reasonable detail the nature, amount and basis of each objection of the Sellers Representative 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 Sellers Representative Seller and its advisors (including its their accountants) shall be permitted to review the working papers of the Buyer and its advisors (including its their accountants) relating to the Closing Statement.
(c) If the Sellers Representative Seller timely objects to the Closing Statementdelivers a Statement of Objections, such all objections set forth therein shall be resolved as set forth below. In connection therewith, the Buyer and its advisors (including its their accountants) shall be permitted to review the working papers of the Sellers Representative Seller and its advisors (including their accountants) relating to such objections.
(i) The Buyer and the Sellers Representative Seller shall first use their reasonable best efforts to resolve such objections in good faith.
(ii) If the Buyer and the Sellers Representative Seller are able to resolve such objections within 30 days after delivery of such statement Statement of objectionsObjections, the Buyer and the Sellers RepresentativeSeller, within 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 (including the Closing Non-Working Capital Amount, the Closing Cash Working CapitalAmount, the Closing CashIndebtedness Amount, Closing Indebtedness, Adjusted Closing Specified Indebtedness, Adjusted Closing Indebtedness, the aggregate amount of the actual Change of Control Payments, Third Party Expenses, the Closing EPU Obligation, Pre-Closing Severance Payments 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, which such calculations shall be final and binding on all parties hereto.
(iii) If the Buyer and the Sellers Representative Seller do not reach a resolution of all objections set forth in such statement Statement of objections Objections within 30 days after delivery of such statement Statement of objectionsObjections, the Buyer and the Sellers Representative 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 Buyer and the Sellers Representative Seller have resolved and the resolution of such objections, which resolutions shall be 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 Seller shall jointly submit to the Neutral Accountant, within 5 five days after the date of the engagement of the Neutral Accountant, a copy of the Closing Statement, a copy of the statement Statement of objections Objections delivered by the Sellers RepresentativeSeller, and the joint statement of Unresolved Objections referred to in paragraph (iii) above. Each of the Buyer and the Sellers Representative Seller 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 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 Sellers Representative Seller may present any additional information or arguments to the Neutral Accountant, either orally or in writing.
(v) The Buyer and the Sellers Representative Seller shall use commercially 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, 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 Non-Working Capital Amount, the Closing Cash Working CapitalAmount, the Closing CashIndebtedness Amount, Closing Indebtedness, Adjusted Closing Specified Indebtedness, Adjusted Closing Indebtedness, the aggregate amount of the actual Change of Control Payments, Third Party Expenses, the Closing EPU Obligation, Pre-Closing Severance Payments 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 Sellers Representative Seller and by the Buyer. In resolving the Unresolved Objections, the Neutral Accountant shall be functioning as an expert and not as an arbitrator.
(vi) The Sellers Representative 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 decision resolving the matters submitted to it within 30 days following the submissionsubmission thereof. The resolution by the 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 Seller 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 expenses of the Neutral Accountant incurred pursuant to this Section 2.5 shall be borne by the Seller and the Buyer in inverse proportion as they may prevail on the matters resolved by the Neutral Accountant, which proportionate allocation shall be calculated on an aggregate basis based on the relative dollar values of the amounts in dispute and shall be determined by the Neutral Accountant at the time the determination of such firm is rendered on the merits of the matters submitted. The fees, costs and expenses of the accountants, attorneys and other representatives of each party incurred in connection with the matters described in this Section 2.5 shall be borne by such party.
(e) Each of the Seller and the Buyer shall reasonably assist, 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, as finally determined pursuant to this Section 2.5, is less than the Estimated Purchase Price, then the Seller shall, within three Business Days of such final determination, pay by wire transfer of immediately available funds to the Buyer (pursuant to wire instructions delivered to the Seller at least two Business Days in advance of such payment), the amount of such difference. If the Seller fails to make any payment required pursuant to this Section 2.5(f), (i) the Buyer shall have the option, by instruction to the Escrow Agent, to have the Escrow Agent release or distribute such amount due and owing to the Buyer under this Section 2.5(f) and (ii) if the Escrow Agent makes such distribution, the Seller shall be obligated to replenish the Escrow Account in the amount so distributed to the Buyer. If the Purchase Price, as finally determined pursuant to this Section 2.5, is greater than the Estimated Purchase Price, then the Buyer shall, within three Business Days of such final determination, pay by wire transfer of immediately available funds to the Seller (pursuant to wire instructions delivered to the Buyer at least two Business Days in advance of such payment), the amount of such difference.
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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 90 60 days after following the Closing Date, the Buyer Acquiror shall prepare and deliver to the Sellers Stockholders’ Representative a statement (the “Closing Statement”) setting forth in reasonable detail Balance Sheet, the Buyer’s calculation of all amounts included in the Closing Estimates and Calculations (including Closing Non-Cash Working CapitalCapital Adjustment, Closing Net Cash, Closing Indebtedness, Adjusted Closing Specified Indebtedness, Adjusted Closing Indebtedness, Change Transfer Taxes and Company Transaction Expenses together with a calculation of Control Payments, Third Party Expenses, the Closing EPU Obligation, Pre-Closing Severance Payments and the Purchase Price), and the deviation of such amounts from those included in the Closing Estimates and Calculations (provided, that the Buyer shall not have to provide a Closing Capitalization Schedule or otherwise determine how the Purchase Price is allocated among Adjustment (derived from the Sellers, Closing Balance Sheet and/or such other books and records of the EPU Holders Company and the Warrant Holdersits Subsidiaries as are applicable).
(b) On the 30th day following the delivery of the Closing Statement Subject to the Sellers Representativeexecution 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 Closing Statement Acquiror shall become final and binding on all parties hereto unless, on or prior to such 30th day, provide the Sellers Representative shall have delivered to the Buyer a statement describing in reasonable detail the nature, amount and basis of each objection of the Sellers Representative 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 Sellers Stockholders’ Representative and its advisors (including auditors with full and prompt access to the books and records and relevant personnel of the Acquiror, the Company and its accountants) 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 permitted to review (x) during normal business hours and upon reasonable advance notice, and (y) up until the working papers final determination of the Buyer 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 advisors (including its accountants) relating to the Closing StatementSubsidiaries.
(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 Sellers Stockholders’ Representative timely objects 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 Closing StatementAcquiror 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 objections 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 resolved 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 set forth belowArbiter, 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 connection therewithresolving any disputed item, the Buyer and its advisors Arbiter (including its accountantsx) shall be permitted bound by the provisions of this Section 1.7 and (y) may not assign a value to review any item greater than the working papers 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 Sellers Representative Arbiter shall be allocated to and its advisors (including their accountants) relating to such objections.
(i) The Buyer borne by the Acquiror and the Sellers 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 shall first use their reasonable best efforts decides to resolve such objections in good faith.
(ii) If the Buyer submit a dispute hereunder to arbitration, and the Sellers Representative are able to resolve such objections within 30 days after delivery Arbiter ultimately awards 70% of such statement of objections, the Buyer and amount disputed by the Sellers Stockholders’ Representative, within such then the Selling Stockholders will bear 30-day period% of the fees, shall jointly prepare costs and sign a statement setting forth expenses of the Arbiter (in reasonable detail the calculation of all amounts included in the Closing Estimates addition to their own fees, costs 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 Purchase Priceexpenses), and the deviation Acquiror will bear 70% of such amounts from those included the Arbiter’s fees, costs and expenses (in the Closing Estimates addition to its own fees, costs and Calculations, which such calculations shall be final and binding on all parties heretoexpenses).
(iiid) 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 Buyer and Purchase Price Excess is less than the Sellers Representative do not reach a resolution Holdback, the Acquiror shall pay to the Selling Stockholders or the Paying Agent, on behalf of all objections set forth 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 statement of objections within 30 payment by the Acquiror shall be made promptly, but no later than five (5) business days after delivery 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 statement remaining cash and stock payable to them.
(e) Upon final determination of objectionsthe 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 Buyer and Acquiror shall pay in cash to the Sellers Representative shallSelling Stockholders or the Paying Agent, within 15 days after on behalf of the expiration Selling Stockholders, the sum of such 30-day period, (A) jointly prepare and sign a statement setting forth those objections (if any) that the Buyer and the Sellers Representative have resolved and the resolution amount of such objections, which resolutions shall be final difference and binding on all parties hereto, (B) jointly prepare 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 sign a statement setting forth those objections which remain unresolved (collectively, the “Unresolved Objections”), and (C) jointly engage the Neutral Accountant stock payable to resolve the Unresolved Objectionsthem.
(ivf) For the purposes of this Section 1.7, interest will be payable at the “prime” rate, as announced by The Buyer Wall Street Journal, Eastern Edition, from time to time to be in effect, calculated based on a 365 day year and the Sellers Representative shall jointly submit to the Neutral Accountant, within 5 actual number of days after the date of the engagement of the Neutral Accountant, a copy of the Closing Statement, a copy of the statement of objections delivered by the 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 the other. Unless requested by the Neutral Accountant in writing, neither the Buyer nor the Sellers Representative may present any additional information or arguments to the Neutral Accountant, either orally or in writingelapsed.
(v) The Buyer and the Sellers Representative shall 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 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 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 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 Sellers Representative and by the Buyer.
(vi) The Sellers Representative and the 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 following the submission
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Purchase Price True-Up. (a) Within 90 As promptly as possible, but in any event within sixty (60) days after the Closing Date, the Buyer shall prepare and Purchaser will deliver to the Sellers Representative 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”) setting ). 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 reasonable detail this Agreement and the Buyer’s calculation Agreed Accounting Principles. The parties agree that the purpose of all amounts included in determining the Closing Estimates and Calculations (including Closing Non-Cash Net Working Capital, Closing Cash, Closing Indebtedness, Adjusted Closing Specified IndebtednessTransaction 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, Adjusted Closing Indebtedness, Change of Control Payments, Third Party 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 EPU ObligationNet Working Capital, Pre-Closing Severance Payments 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 Purchase PriceAgreed 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, and the deviation 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 such amounts from those included the Preliminary Closing Statement, the Preliminary Closing Statement shall be final, binding and non-appealable by the parties hereto; provided that, in the Closing Estimates and Calculations 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 Buyer shall not have to provide a Closing Capitalization Schedule or otherwise determine how date on which the Purchase Price is allocated among the Sellers, the EPU Holders Purchaser and the Warrant Holders).
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 (b30) On the 30th day following days after the delivery of the Closing Statement 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 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 each objection of the Sellers Representative 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 Sellers Representative and its advisors (including its accountants) shall be permitted to review the working papers of the Buyer and its advisors (including its accountants) relating to the Closing Statement.
(c) If the Sellers Representative timely objects to the Closing Statement, such objections shall be resolved as set forth below. In connection therewith, the Buyer and its advisors (including its accountants) shall be permitted to review the working papers of the Sellers Representative and its advisors (including their accountants) relating to such objections.
(i) The Buyer Purchaser and the Sellers Representative 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 first use their reasonable best efforts likewise certify its independence to resolve such objections 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 good faith.
(ii) If the Buyer Objections Statement as being items that Sellers and the Sellers Representative Purchaser are able unable to resolve such objections within 30 days after delivery resolve. The Dispute Resolution Firm’s determination will be based solely on the definitions of such statement of objections, the Buyer and the Sellers Representative, within 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 (including Closing Non-Cash Net Working Capital, Closing Cash, Closing Indebtedness, Adjusted Closing Specified Indebtedness, Adjusted Closing Indebtedness, Change of Control Payments, Third Party Expenses, Transaction Expenses and the Closing EPU ObligationProceeds, Pre-Closing Severance Payments as applicable, contained herein. Sellers and the Purchase Price), and the deviation of such amounts from those included in the Closing Estimates and Calculations, which such calculations shall be final and binding on all parties hereto.
(iii) If the Buyer and the Sellers Representative do not reach a resolution of all objections set forth in such statement of objections within 30 days after delivery of such statement of objections, the Buyer and the 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 Buyer and the Sellers Representative have resolved and the resolution of such objections, which resolutions shall be 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 engagement of the Neutral Accountant, a copy of the Closing Statement, a copy of the statement of objections delivered by the 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 the other. Unless requested by the Neutral Accountant in writing, neither the Buyer nor the Sellers Representative may present any additional information or arguments to the Neutral Accountant, either orally or in writing.
(v) The Buyer and the Sellers Representative Purchaser shall use their commercially reasonable efforts to cause the Neutral Accountant Dispute Resolution Firm to resolve all disagreements as soon as practicable and in any event within forty-five (A45) ensure days after the scope submission of its review and authority any dispute. Further, the Dispute Resolution Firm’s determination shall be limited to based solely resolving on the Unresolved Objections, (B) act presentations by the Purchaser and the Sellers that are in accordance with the terms and procedures set forth in this AgreementAgreement (i.e., not on the basis of an independent review). The resolution of the dispute by the Dispute Resolution Firm shall be final, binding and non-appealable on the parties hereto, absent manifest error. The costs and expenses of the 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 the presentation to the Dispute Resolution Firm. For example, if Sellers submit an Objections Statement for One Thousand Dollars ($1,000), and if the Purchaser contests only Five Hundred Dollars (C$500) issue a written ruling which sets forth of the amount claimed by Sellers, and if the Dispute Resolution Firm ultimately resolves the dispute by awarding Sellers Three Hundred Dollars ($300) of the Five Hundred Dollars ($500) contested, then the costs and expenses of the Dispute Resolution Firm will be allocated sixty percent (60%) (i.e., 300/500) to the 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 each Unresolved Objection and includes a statement setting any objections thereto pursuant to this Section 1.5, and, as so revised, such Preliminary Closing Statement shall be deemed to set forth in reasonable detail the calculations of all amounts included in the Closing Estimates and Calculations (including Closing Non-Cash Net Working Capital, Closing Cash, Closing Indebtedness, Adjusted Closing Specified Indebtedness, Adjusted Closing Indebtedness, Change of Control Payments, Third Party Expenses, Transaction Expenses and the Closing EPU ObligationProceeds, Pre-Closing Severance Payments and the Purchase Price)in each case, 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 Sellers Representative and by the Buyerall purposes hereunder.
(vi) The Sellers Representative and the 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 following the submission
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Samples: Purchase Agreement
