Working Capital Adjustment. Section 10(a) of the Agreement is hereby amended and restated it in its entirety, as follows: (a) Attached hereto as Annex II is a list of outstanding liabilities known to the Company and Buyer as of the date of this Amendment, which will cause the post-closing calculation of Working Capital to be less than zero (the “Preliminary Working Capital Adjustment Schedule”). The Purchase Price has been reduced by an amount equal to the amount of these liabilities as shown on the Preliminary Working Capital Adjustment Schedule, or $337,652.08. On or before sixty (60) days after the Closing Date, the Company shall provide Sellers with a statement showing its calculation of Working Capital (the “Working Capital Statement”), together with its supporting documentation. The Company and Sellers shall have an additional fifteen (15) day period (the “Review Period”) following the delivery of the Working Capital Statement to agree upon the amount of Working Capital in accordance with the provisions of Section 10(c) below. If Working Capital as agreed pursuant to this Section 10 is less than zero, then Sellers shall be obligated to pay Buyer an amount not to exceed the Purchase Price in cash equal to that amount that would bring the Working Capital to zero. The payment required to be made pursuant to this Section 10 shall first be satisfied by the receipt by Buyer of the Good Faith Deposit. If the Good Faith Deposit is insufficient to satisfy the payment required by this Section 10, such additional amount shall be paid by the Sellers, (i) by delivery of the Restricted Shares (valued at the Restricted Share Price), then (ii) the Company Notes (valued at face value plus accrued interest) and then (iii) if a deficiency still remains by delivery of cash promptly upon the agreement as to the amount of Working Capital in immediately available funds in accordance with the instructions provided by Buyer. “Working Capital” means an amount equal to the Company’s current assets minus current liabilities (each expressed as a positive number) as of the Closing Date as determined in accordance with GAAP, except that for purposes of this calculation, current assets shall exclude prepaid insurance unamortized at the acquisition date and current liabilities shall exclude the remainder of the premium liability due related to the current year prepaid insurance at the acquisition date and current liabilities shall also exclude the twelve months of lease/purchase obligations for tanks due to DiVinci of $21,000 ($1,750 per month for twelve months) at the acquisition date, and provided further, that current liabilities shall exclude amounts included on the Preliminary Working Capital Adjustment Schedule.”
Appears in 1 contract
Samples: Stock Purchase Agreement (GreenHunter Energy, Inc.)
Working Capital Adjustment. Section 10(a) of the Agreement is hereby amended and restated it in its entirety, as follows:
(a) Attached hereto as Annex II is a list of outstanding liabilities known to the Company and Buyer as of the date of this Amendment, which will cause the post-closing calculation of Working Capital The Closing Date Balance Sheet shall be deemed to be less than zero final, binding and conclusive on the Seller Representative and the Buyer (the “Preliminary Working Capital Adjustment ScheduleFinal Closing Date Balance Sheet”). The Purchase Price has been reduced by an amount equal ) upon the earliest of (i) the failure of the Seller Representative to notify the amount Buyer of these liabilities as shown on the Preliminary Working Capital Adjustment Schedule, or $337,652.08. On or before sixty (60) a dispute within 15 days after the Closing Date, the Company shall provide Sellers with a statement showing its calculation of Working Capital (the “Working Capital Statement”), together with its supporting documentation. The Company and Sellers shall have an additional fifteen (15) day period (the “Review Period”) following the delivery of the Working Capital Statement to agree upon the amount of Working Capital in accordance with the provisions of Section 10(c) below. If Working Capital as agreed pursuant to this Section 10 is less than zero, then Sellers shall be obligated to pay Buyer an amount not to exceed the Purchase Price in cash equal to that amount that would bring the Working Capital to zero. The payment required to be made pursuant to this Section 10 shall first be satisfied by the receipt by Buyer of the Good Faith Deposit. If the Good Faith Deposit is insufficient to satisfy the payment required by this Section 10, such additional amount shall be paid by the Sellers, (i) by delivery of the Restricted Shares (valued at the Restricted Share Price), then Closing Date Balance Sheet; (ii) the Company Notes (valued at face value plus accrued interest) resolution of all disputes by the Seller Representative and then the Buyer; or (iii) if the resolution of all disputes by the Independent Accounting Firm. Within three business days after the Final Closing Date Balance Sheet is available, a deficiency still remains by delivery of cash promptly upon adjustment shall be made as follows: In the agreement as event that the Closing Net Working Capital reflected on the Final Closing Date Balance Sheet is less than the Base Net Working Capital, the Sellers shall each pay to the amount Buyer their Pro Rata share of Working Capital such difference in immediately available funds by certified or official bank check or by wire transfer of immediately available funds to an account specified in writing by the Buyer, and, in the event that the Closing Net Working Capital reflected on the Final Closing Date Balance Sheet is greater than the Base Net Working Capital, the Buyer shall pay to the Sellers in accordance with the instructions provided their respective percentages set forth on Attachment I such difference in immediately available funds by Buyercertified or official bank check or by wire transfer of immediately available funds to an account specified in writing by Sellers. For purposes of this Agreement, “Base Net Working Capital” means an zero dollars ($0.00). Notwithstanding anything in this Section 1.5(b) to the contrary, neither Buyer nor Sellers shall be required to pay the other Party under this Section 1.5(b) if the amount owed to such party is equal to the Company’s current assets minus current liabilities (each expressed as a positive number) as of the Closing Date as determined in accordance with GAAP, except that for purposes of this calculation, current assets shall exclude prepaid insurance unamortized at the acquisition date and current liabilities shall exclude the remainder of the premium liability due related to the current year prepaid insurance at the acquisition date and current liabilities shall also exclude the twelve months of lease/purchase obligations for tanks due to DiVinci of or less than $21,000 ($1,750 per month for twelve months) at the acquisition date, and provided further, that current liabilities shall exclude amounts included on the Preliminary Working Capital Adjustment Schedule20,000.”
Appears in 1 contract
Working Capital Adjustment. Section 10(a) The procedure for determining any adjustment to the Working Capital of the Agreement is hereby amended and restated it in its entirety, Company ("Working Capital Adjustment Amount") shall be as follows:
(ai) Attached hereto as Annex II is a list of outstanding liabilities known to the Company and Buyer as of the date of this Amendment, which will cause the post-closing calculation of Working Capital to be less than zero (the “Preliminary Working Capital Adjustment Schedule”). The Purchase Price has been reduced by an amount equal to the amount of these liabilities as shown on the Preliminary Working Capital Adjustment Schedule, or $337,652.08. On or before sixty (60) days after the Closing Date, Buyer will deliver to Seller a balance sheet of the Company shall provide Sellers with a statement showing its calculation of Working Capital (the “Working Capital Statement”), together with its supporting documentation. The Company and Sellers shall have an additional fifteen (15) day period (the “Review Period”) following the delivery of the Working Capital Statement to agree upon the amount of Working Capital in accordance with the provisions of Section 10(c) below. If Working Capital as agreed pursuant to this Section 10 is less than zero, then Sellers shall be obligated to pay Buyer an amount not to exceed the Purchase Price in cash equal to that amount that would bring the Working Capital to zero. The payment required to be made pursuant to this Section 10 shall first be satisfied by the receipt by Buyer of the Good Faith Deposit. If the Good Faith Deposit is insufficient to satisfy the payment required by this Section 10, such additional amount shall be paid by the Sellers, (i) by delivery of the Restricted Shares (valued at the Restricted Share Price), then (ii) the Company Notes (valued at face value plus accrued interest) and then (iii) if a deficiency still remains by delivery of cash promptly upon the agreement as to the amount of Working Capital in immediately available funds in accordance with the instructions provided by Buyer. “Working Capital” means an amount equal to the Company’s current assets minus current liabilities (each expressed as a positive number) as of the Closing Date as determined prepared in accordance with GAAP, except that for purposes of this calculation, current GAAP and updated to reflect actual assets shall exclude prepaid insurance unamortized at the acquisition date and current liabilities shall exclude the remainder as of the premium liability due related to Closing Date ("Closing Date Balance Sheet"), accompanied by the current year prepaid insurance at following:
(A) a statement of the acquisition date actual Working Capital of the Company as of the Closing Date ("Closing Date Working Capital") and current liabilities shall also exclude the twelve months of lease/purchase obligations for tanks due to DiVinci of $21,000 ($1,750 per month for twelve months) at the acquisition date, and provided further, that current liabilities shall exclude amounts included based on the Preliminary balance sheet prepared in accordance with Section 3.3(b)(i), excluding the Company’s subsidiary operations in Mexico; and
(B) a written statement (the "Post-Closing Working Capital Adjustment ScheduleStatement"), based on the balance sheet prepared in accordance with Section 3.3(b)(i), setting forth the calculation of the (i) Working Capital Deficit or (ii) Excess Working Capital, as the case may be, and the resulting adjustment to the Purchase Price (the "Post-Closing Working Capital Adjustment Amount"). Buyer's failure to timely deliver the Closing Date Balance Sheet shall not prejudice any of the Buyer's rights under this Section 3.3, provided however that any Excess Working Capital payment that is ultimately determined to be owed to the Seller pursuant to this Section 3.3 will be deemed to have accrued interest at the rate of fifteen percent (15%) per annum on a pro rated basis for each day that the Buyer fails to deliver the Closing Date Balance Sheet past the 60-day deadline provided for under this Section 3.3.”
Appears in 1 contract
Samples: Stock Purchase Agreement (Timberline Resources Corp)
Working Capital Adjustment. Pursuant to Section 10(a) of 6.3(f), immediately following the Agreement is hereby amended and restated it in its entirety, as follows:
(a) Attached hereto as Annex II is a list of outstanding liabilities known to the Company and Buyer as of the date of this Amendment, which will cause the post-closing calculation of Working Capital to be less than zero (the “Preliminary Working Capital Adjustment Schedule”). The Purchase Price has been reduced by an amount equal to the amount of these liabilities as shown on the Preliminary Working Capital Adjustment Schedule, or $337,652.08. On or before sixty (60) days after the Closing DateClosing, the Company shall provide Sellers with a statement showing (and its calculation of subsidiaries) are required to have an aggregate minimum Working Capital balance equal to Twenty Five Million Dollars ($25,000,000) (the “Working Capital StatementMinimum”). For purposes of this Agreement, together with its supporting documentation“Working Capital” shall mean current assets minus current liabilities based on the GAAP accounting consistently applied by the Company’s independent auditors. The Prior to Closing, the Company and Sellers shall have an additional fifteen (15) day period (the “Review Period”) following the delivery of the Working Capital Statement to agree upon will determine the amount of Working Capital reflected on its most recent internal financial statement (for the month prior to the month in which Closing will occur) (the “Estimated Working Capital Amount”), and will distribute cash (or enter into an obligation to distribute cash in the future) to its stockholders and Phantom Stock holder, prior to or concurrently with Closing, an amount (the “Pre-Closing Distribution”) equal to the Estimated Working Capital Amount, less (i) the Working Capital Minimum, less (ii) a holdback of One Million Dollars ($1,000,000) (the “Working Capital Holdback”); provided, however that any portion of such Pre-Closing Distribution that exceeds $13,000,000 (the ”Pre-Closing Excess Working Capital”) will not be distributed to the Company’s stockholders or Phantom Stock holder prior to or concurrently with Closing and will instead shall be paid as set forth below. To the extent that the Company does not complete the Pre-Closing Distribution by issuing cash, the Company will enter into payment obligation agreements with each stockholder and Phantom Stock holder that will set forth the payment owed in the future to each stockholder and Phantom Stock holder based on the amounts payable to such stockholders and Phantom Stock holder as contemplated herein and set forth in such payment obligation agreements, which payment obligation agreements shall be assumed by the Surviving Corporation and paid as set forth herein. By no later than March 31, 2019, NBEV shall deliver to Kexxx Xxxx Xxxx (the “Stockholder Representative”), a determination, and working papers supporting such determination, of the actual Working Capital amount immediately after Closing (the “Actual Working Capital Amount”), and the Stockholder Representative shall have thirty (30) days after receipt of the determination to accept or object to such determination. In the event the Stockholder Representative accepts the determination or fails to object within thirty (30) days, then the NBEV determination shall be binding and conclusive on the parties. In the event the Stockholder Representative objects to the determination, then the parties shall have ten (10) days to negotiate, in good faith, the Actual Working Capital Amount. If the parties fail to agree upon the Actual Working Capital Amount during such ten (10) day period, then they shall select a nationally recognized independent certified public accountant to determine the Actual Working Capital Amount, which determination shall be conclusive and binding on the parties. The fees and expenses of the independent accountant will be allocated between NBEV and the Stockholder Representative in the same proportion that the unsuccessfully disputed amount submitted by each party bears to the total amount of disputed amount submitted to the independent accountants. The amount by which the Actual Working Capital Amount exceeds the Estimated Working Capital Amount (the “Post-Closing Excess Working Capital”) shall be added to the Pre-Closing Excess Working Capital and shall be referred to in the aggregate as the “Excess Working Capital”. NBEV shall cause the Surviving Corporation to pay, subject to the terms of the payment obligation agreements, the Excess Working Capital and the Working Capital Holdback, to the Company’s stockholders and the Phantom Stock holder in accordance with the provisions of Section 10(c) payment schedules set forth below. If If, in the event that the Actual Working Capital as agreed Amount is less than the Estimated Working Capital Amount, then NBEV and/or Surviving Corporation shall be entitled to deduct from the Working Capital Holdback an amount equal to such shortfall; provided, however, that to the extent there is any remaining money in the Working Capital Holdback after such deduction, such remaining money shall be distributed to the Company’s stockholders and Phantom Stock holder. Any payment contemplated hereunder relating to the Working Capital Holdback shall be made within ten (10) days after the Actual Working Capital Amount becomes conclusive and binding upon the parties. Any payment contemplated hereunder relating to Excess Working Capital shall be made on or before July 31, 2020. Any payments to or by the Company’s stockholders or Phantom Stock holder pursuant to this Section 10 is less than zero, then Sellers 1.10 shall be obligated made in the same manner and in the same proportions as the Merger Consideration that is distributed to pay Buyer an amount not the stockholders and Phantom Stock holder pursuant to exceed the Purchase Price in cash equal to that amount that would bring this Agreement. For purposes of calculating the Working Capital to zero. The payment required to be made pursuant to this Section 10 shall first be satisfied Minimum, the Estimated Working Capital Amount and Actual Working Capital Amount, any current liabilities associated with mortgages on real property owned by the receipt by Buyer of the Good Faith Deposit. If the Good Faith Deposit is insufficient to satisfy the payment required by this Section 10, such additional amount Company shall not be paid by the Sellers, (i) by delivery of the Restricted Shares (valued at the Restricted Share Price), then (ii) the Company Notes (valued at face value plus accrued interest) and then (iii) if a deficiency still remains by delivery of cash promptly upon the agreement as to the amount of Working Capital included in immediately available funds in accordance with the instructions provided by Buyer. “Working Capital” means an amount equal to the Company’s current assets minus current liabilities (each expressed as a positive number) as of the Closing Date as determined in accordance with GAAP, except that for purposes of this calculation, current assets shall exclude prepaid insurance unamortized at the acquisition date and current liabilities shall exclude the remainder of the premium liability due related to the current year prepaid insurance at the acquisition date and current liabilities shall also exclude the twelve months of lease/purchase obligations for tanks due to DiVinci of $21,000 ($1,750 per month for twelve months) at the acquisition date, and provided further, that current liabilities shall exclude amounts included on the Preliminary Working Capital Adjustment Scheduleliabilities.”
Appears in 1 contract
Working Capital Adjustment. Section 10(a3.3.1 The Purchase Price shall be increased or decreased, respectively by the positive or negative balance between (i) the Company's actual amount of working capital as at 13 May 2004 less EUR 20,000.00 (the Agreement is hereby amended "Agreed Working Capital Amount") and restated it (ii) EUR 100,679.79, i.e., the Company's working capital amount as identified in its entiretythe Interim Accounts, as follows:
(a) Attached hereto as Annex II is a list of outstanding liabilities known provided, however, that adjustment to the Company and Buyer as of Purchase Price shall only be made if the date of this Amendment, difference is greater than EUR 15,000.00. The amount by which will cause the post-closing calculation of Working Capital to Purchase Price shall be less than zero (increased or decreased shall constitute the “Preliminary "Working Capital Adjustment Schedule”)Amount". The Purchase Price has been reduced by an amount equal to For the purpose of this Clause 3.3, the Agreed Working Capital Amount shall be calculated as the balance between (i) the amount of these liabilities referred to as shown on "vlottende activa" (current assets) and numbered 29/58 in the Preliminary Company's balance sheet and (ii) the amount referred to as "schulden op ten hoogste een jaar" (short term debts) and numbered 42/48 in the Company's balance sheet and the amount referred to as "schulden op mxxx xxx een jaar" (long term debts) and numbered 170/173 in the Company's balance sheet.
3.3.2 The Agreed Working Capital Amount and, accordingly, the Working Capital Adjustment ScheduleAmount shall be determined by the Parties or, or $337,652.08. On or before as the case may be, by the Independent Expert in accordance with the procedure set out in this Clause 3.3.
3.3.3 For that purpose, Working Capital Statements shall be prepared by the Sellers and they shall be delivered to the Purchaser within sixty (60) days after the Closing Date, the Company Date of this Agreement.
3.3.4 The Purchaser shall provide Sellers with a statement showing its calculation of Working Capital (the “Working Capital Statement”), together with its supporting documentation. The Company and Sellers shall have an additional within fifteen (15) day period (the “Review Period”) following days after the delivery to the Purchaser of the Working Capital Statement to agree upon Statements (the amount of "Working Capital Verification Period"), cause such verification as the Purchaser shall deem useful to be performed with respect to the Working Capital Statements, at the Purchaser's sole expense. On the basis of that review, the Purchaser may during a fifteen-day period following the Working Capital Verification Period propose to the Sellers in writing (the "Working Capital Notice of Objection") such adjustments, if any, as shall in the Purchaser's judgement be required to determine the Agreed Working Capital Amount and the Working Capital Adjustment Amount in accordance with the provisions of Section 10(c) belowrules set out in this Clause 3.3. If The Working Capital as agreed pursuant Notice of Objection shall contain a statement of the basis of the Purchaser's objection.
3.3.5 If the Purchaser has given the Sellers a Working Capital Notice of Objection in accordance with Clause 3.3.4, the Parties shall attempt to this Section 10 is less than zero, then Sellers shall be obligated resolve the disputed issues and to pay Buyer an agree on the amount not to exceed of the Purchase Price in cash equal to that Agreed Working Capital Amount and the amount that would bring of the Working Capital Adjustment Amount.
3.3.6 If the Parties are not able to zero. The payment required to be made pursuant to this Section 10 shall first be satisfied by reach agreement within fifteen days from the receipt by Buyer notification of the Good Faith Deposit. If Working Capital Notice of Objection, the Good Faith Deposit is insufficient Parties hereby jointly appoint VGD (van Geet, Dxxxxx en Co) with offices at Lxxxx Xxxxxxxxxxx 0X, 0000 Xxxx (the "Independent Expert") as third-party expert to satisfy resolve the payment required by disputed issues and to determine the Agreed Working Capital Amount and the Working Capital Adjustment Amount in accordance with the rules set out in this Section 10Clause 3.3.
3.3.7 In determining the amount of the Agreed Working Capital Amount and the amount of the Working Capital Adjustment Amount, such additional amount the Independent Expert shall be paid by limit its inquiry to the Sellersdisputed issues, i.e. to those items in the Working Capital Statements to which the Purchaser has objected in the Working Capital Notice of Objection.
3.3.8 Not later than five days after the appointment of the Independent Expert, (i) by delivery of the Restricted Shares (valued at Sellers shall deliver the Restricted Share Price), then Working Capital Statements to the Independent Expert and (ii) the Company Notes Purchaser shall deliver a copy of its Working Capital Notice of Objection to the Independent Expert.
3.3.9 The Independent Expert shall determine the Agreed Working Capital Amount and the Working Capital Adjustment Amount and shall notify the Parties of its decision (valued at face value plus accrued interestit being understood that such notice shall include a statement of the basis of the Independent Expert's decision) and then (iii) if a deficiency still remains within thirty days after its appointment. The amounts determined by delivery of cash promptly the Independent Expert shall be binding upon the agreement as Parties (in accordance with Article 1592 of the Belgian Civil Code).
3.3.10 The Purchaser and the Sellers shall each bear 50% of the Independent Expert's fees.
3.3.11 Subject to Clause 3.5, if there is an increase in the Purchase Price, the Purchaser shall pay the Working Capital Adjustment Amount to the amount Sellers within fifteen days after the final determination of the Working Capital Adjustment Amount in accordance with this Clause 3.3, by wire transfer of immediately available funds to the accounts designated by the Sellers.
3.3.12 If there is a decrease in the Purchase Price, the Sellers shall pay the Working Capital Adjustment Amount to the Purchaser within fifteen days after the final determination of the Working Capital Adjustment Amount in accordance with the instructions provided this Clause 3.3, by Buyer. “Working Capital” means an amount equal wire transfer of immediately available funds to the Company’s current assets minus current liabilities (each expressed as a positive number) as of account designated by the Closing Date as determined in accordance with GAAP, except that for purposes of this calculation, current assets shall exclude prepaid insurance unamortized at the acquisition date and current liabilities shall exclude the remainder of the premium liability due related to the current year prepaid insurance at the acquisition date and current liabilities shall also exclude the twelve months of lease/purchase obligations for tanks due to DiVinci of $21,000 ($1,750 per month for twelve months) at the acquisition date, and provided further, that current liabilities shall exclude amounts included on the Preliminary Working Capital Adjustment SchedulePurchaser.”
Appears in 1 contract
Working Capital Adjustment. Section 10(a) of 4.1 The Completion Statement shall be prepared, and the Agreement is hereby amended and restated it in its entirety, as follows:
(a) Attached hereto as Annex II is a list of outstanding liabilities known to the Company and Buyer as of the date of this Amendment, which will cause the post-closing calculation of Actual Net Working Capital to be less than zero (and the “Preliminary Working Capital Adjustment Schedule”). The Purchase Price has been reduced by an amount equal to the amount of these liabilities as shown on the Preliminary Working Capital Adjustment Schedule(if any) ascertained, or $337,652.08. On or before sixty (60) days after the Closing Date, the Company shall provide Sellers with a statement showing its calculation of Working Capital (the “Working Capital Statement”), together with its supporting documentation. The Company and Sellers shall have an additional fifteen (15) day period (the “Review Period”) following the delivery of the Working Capital Statement to agree upon the amount of Working Capital in accordance with the provisions of Section 10(c) below. If Schedule 7.
4.2 If:-
4.2.1 the Actual Net Working Capital as agreed pursuant to this Section 10 is less than zerothe Target Net Working Capital by more than $500,000 then the amount by which the Actual Net Working Capital is less than the Target Net Working Capital by more than $500,000 shall be the “Negative Adjustment”; or
4.2.2 the Actual Net Working Capital is not more than $500,000 less than the Target Net Working Capital, then no payment shall be made by the Buyer or the Sellers under Clause 4.3 and the Consideration shall not be adjusted by reference to the Completion Statement.
4.3 In the event that the Completion Statement results in a Negative Adjustment pursuant to Clause 4.2.1, then the Consideration shall be reduced by the amount of the Negative Adjustment and the Sellers shall be obligated pay such amount (subject always to pay the Sellers’ respective limits on liability set out in Clause 7) to the Buyer an amount not to exceed the Purchase Price in cash equal to that amount that would bring the Working Capital to zero. The accordance with Clauses 4.4 and 4.5.
4.4 Any payment required to be made pursuant made, or to this Section 10 shall first be satisfied by the receipt by Buyer of the Good Faith Deposit. If the Good Faith Deposit is insufficient procured to satisfy the payment required by this Section 10be made, such additional amount shall be paid by the Sellers, (i) by delivery of the Restricted Shares (valued at the Restricted Share Price), then (ii) the Company Notes (valued at face value plus accrued interest) and then (iii) if a deficiency still remains by delivery of cash promptly upon the agreement as to the amount of Working Capital in immediately available funds in accordance with the instructions provided by Buyer. “Working Capital” means an amount equal to the Company’s current assets minus current liabilities provisions of Clause 4.3 shall be made within ten (each expressed as a positive number10) as Business Days of the Closing Date as date on which the Working Capital Adjustment is agreed, deemed agreed or otherwise determined in accordance with GAAP, except the provisions of Schedule 7.
4.5 The Sellers’ obligation to make a payment to the Buyer pursuant to Clause 4.3 and Clause 4.4 shall be satisfied as follows:-
4.5.1 in the Working Capital Proportions until the maximum aggregate liability of any Seller set out in Clause 7 is reached; and
4.5.2 thereafter in the ratio that the respective Working Capital Proportions of the remaining Sellers bear to one another until either the obligation to the Buyer is satisfied in full or all Sellers have reached their respective maximum aggregate liabilities as set out in Clause 7. The provisions of Clause 7.12 shall apply to the settlement of any Negative Adjustment by the Sellers and any payment to be made in cash by the Sellers shall be made in accordance with Clause 8.3.
4.6 If any sum due for purposes payment in accordance with Clause 4.5 of this calculationAgreement is not paid on the due date (the “Working Capital Due Date”), current assets the Sellers being in default shall exclude prepaid insurance unamortized pay interest at the acquisition rate of 4 per cent above the base rate of The Royal Bank of Scotland plc from time to time on that sum from (but excluding) the Working Capital Due Date to and including the date of actual payment calculated daily and current liabilities shall exclude the remainder of the premium liability due related to the current year prepaid insurance at the acquisition date and current liabilities shall also exclude the twelve months of lease/purchase obligations for tanks due to DiVinci of $21,000 ($1,750 per month for twelve months) at the acquisition date, and provided further, that current liabilities shall exclude amounts included on the Preliminary Working Capital Adjustment Schedulebasis of a 365 day year.”
Appears in 1 contract
Samples: Share Purchase Agreement (Information Services Group Inc.)
Working Capital Adjustment. Section 10(a) of the Agreement is hereby amended and restated it in its entirety, as follows:
(a) Attached hereto The Aggregate Merger Consideration, as Annex II is a list of outstanding liabilities known to the Company and Buyer contemplated by Section 1.6, will be adjusted upward or downward as of the date of provided by this Amendment, which will cause the post-closing Section 1.15. Schedule 1.15(a) sets forth an example calculation of Working Capital as of March 31, 2014 including the components thereof, assuming the Closing occurred on such date and assuming the unaudited consolidated financial statements of NMI as of such date delivered to be less than zero Buyer before the Execution Date have been prepared in accordance with GAAP and are accurate and complete in all respects. At least three Business Days prior to the Closing, NMI will deliver to Buyer (i) a certificate, signed by each of the Chief Executive Officer and the Chief Financial Officer of NMI (the “Preliminary Working Capital Adjustment ScheduleCertificate”). The Purchase Price has been reduced by an amount equal , setting forth a good faith estimate of the Working Capital, including the components thereof, as of immediately prior to the Closing, each calculated on a basis consistent with GAAP (as expressly modified and adjusted by this Agreement as described in Schedule 1.15(a)) and Schedule 1.15(a) (the “Estimated Working Capital”), and (ii) the work papers used to prepare such balance sheet and estimate.
(b) Any amount of these liabilities by which the Estimated Working Capital: ▪ exceeds $1,250,000 (such positive difference being referred to as shown on the Preliminary “Working Capital Adjustment ScheduleExcess”) will increase the Aggregate Merger Consideration as set forth in Section 1.6(a) on a dollar-for-dollar basis, or ▪ is less than $337,652.08750,000 (such positive difference being referred to as the “Working Capital Shortfall”) will decrease the Aggregate Merger Consideration in accordance with Section 1.6(a) on a dollar-for-dollar basis. On or before sixty Subject to Section 1.15(e), if the Estimated Working Capital falls within the range of $750,000 and $1,250,000 (60the “Working Capital Collar”), then no adjustment to the Aggregate Merger Consideration shall be made.
(c) Within one hundred twenty (120) days after the Closing Date, Buyer shall prepare and deliver to the Company shall provide Sellers with a statement showing its calculation Representative (i) an unaudited balance sheet of Working Capital NMI as of immediately prior to the Closing (the “Closing Balance Sheet”) and (ii) a statement setting forth the amount of, and the calculation of, NMI’s Working Capital Statement”)as of immediately prior to the Closing, together including the components thereof, as calculated from the Closing Balance Sheet and in accordance with its supporting documentation. The Company and Sellers shall have an additional fifteen (15the sample calculation set forth in Schedule 1.15(a) day period (the “Review PeriodClosing Date Working Capital”). The Closing Balance Sheet will be prepared in accordance with GAAP (as expressly modified and adjusted by this Agreement as described in Schedule 1.15(a)) and Schedule 1.15(a) and will fairly present the financial position of NMI as of the Closing Date, subject to the modifications and adjustments required by this Agreement. Immediately following the delivery of the Closing Balance Sheet and the statement of the Closing Date Working Capital, Buyer will provide the Representative and its professional advisors reasonable access to the books and records and employees of the Surviving Corporation as may be reasonably required by the Representative to determine the accuracy of the Closing Balance Sheet and the statement of Closing Date Working Capital Statement and will cause the employees of the Surviving Corporation and Buyer to reasonably cooperate with the Representative and its professional advisors as may be reasonably required in connection with their determination of the accuracy of the Closing Balance Sheet and the statement of Closing Date Working Capital. If Buyer fails to deliver the Closing Balance Sheet and Closing Date Working Capital within one hundred twenty (120) days after the Closing Date, there shall be no adjustment to the Aggregate Merger Consideration pursuant to this Section 1.15.
(d) The Representative will notify Buyer in writing of any objections to the Closing Date Working Capital or Closing Balance Sheet within twenty (20) Business Days after the Representative receives the Closing Date Working Capital and the Closing Balance Sheet; provided that the only basis on which the Representative shall be permitted to object is that either the Closing Date Working Capital or Closing Balance Sheet was not prepared in accordance with the terms of this Agreement, GAAP, or contains a mathematical error or errors. If the Representative does not notify Buyer of any such objections by the end of such twenty (20) Business Day period or specifies objections other than those expressly permitted by the immediately prior sentence, then the Closing Date Working Capital and the Closing Balance Sheet will each be considered final at the end of such twenty (20) Business Day period. If the Representative does notify Buyer of any such objections by the end of such twenty (20) Business Day period and the Representative and Buyer are unable to resolve their differences within ten (10) Business Days thereafter, then the remaining disputed items and the value attributable to them by each of the Representative and Buyer will be submitted promptly to the Neutral Accounting Firm for resolution, and the Neutral Accounting Firm will be instructed to determine the final Closing Date Working Capital and Closing Balance Sheet and deliver such findings to the Representative and Buyer within the time period set forth in this Section 1.15(d). The Neutral Accounting Firm will consider only those items and amounts in the Representative’s and Buyer’s respective calculations of the Closing Date Working Capital that are identified as being items and amounts with respect to which the Representative and Buyer have been unable to agree and all other items included within the Closing Date Working Capital or Closing Balance Sheet shall be deemed final, conclusive and binding on the parties (and not subject to further review in any forum). In resolving any disputed item (and only such disputed items), the Neutral Accounting Firm may not assign a value to any item greater than the greatest value for such item claimed by either party or less than the smallest value for such item claimed by either party. The Neutral Accounting Firm’s determination of the Closing Date Working Capital will be based solely on written materials submitted by the Representative and Buyer (i.e., not an independent or de novo review) and on the definition of Working Capital included herein. The Neutral Accounting Firm shall provide its determination within twenty (20) Business Days from the date the parties have submitted all of their supporting documents. The decision of the Neutral Accounting Firm will be final, conclusive and binding upon the parties hereto (and not subject to further review in any forum). Neither Buyer nor Representative will have any right to, and will not, institute any action challenging such determination or any of the matters that are the subject of this Section 1.15, except that the foregoing will not preclude an action to enforce such determination. If the Neutral Accounting Firm’s determination of Closing Date Working Capital is closer to the value initially asserted by Buyer to the Neutral Accounting Firm, then the Representative will pay the costs and expenses of the Neutral Accounting Firm. If the Neutral Accounting Firm’s determination of Closing Date Working Capital is closer to the value initially asserted by the Representative to the Neutral Accounting Firm, then Buyer will pay the costs and expenses of the Neutral Accounting Firm. Each of Buyer and the Representative will cooperate with and assist the Neutral Accounting Firm to determine the final Closing Date Working Capital and Closing Balance Sheet, including by making available and granting reasonable access to records and employees.
(e) Within five (5) Business Days of the final determination of the Closing Date Working Capital in accordance with this Section 1.15:
(i) if the Estimated Working Capital and the Closing Date Working Capital are both within the Working Capital Collar, then no adjustment to the Aggregate Merger Consideration shall be made;
(ii) if the Estimated Working Capital is within the Working Capital Collar and the Closing Date Working Capital is greater than $1,250,000, then Buyer shall pay to each Rights Holder that has complied with the exchange requirements set forth in Section 1.14 an amount equal to such Rights Holder’s Pro Rata Share of (1) the Closing Date Working Capital minus (2) $1,250,000 in accordance with the payment instructions set forth on the Spreadsheet;
(iii) if the Estimated Working Capital is within the Working Capital Collar and the Closing Date Working Capital is less than $750,000, then Buyer shall be entitled to recover an amount equal to (1) $750,000 minus (2) the Closing Date Working Capital from the Escrow Amount (without any amount subject to, or counted toward, the Threshold Amount), and the Escrow Agent shall distribute such amount to Buyer in accordance with the terms of the Escrow Agreement;
(iv) if the Estimated Working Capital is greater than $1,250,000 and the Closing Date Working Capital is within the Working Capital Collar, then Buyer shall be entitled to recover an amount equal to (1) the Estimated Working Capital minus (2) $1,250,000 from the Escrow Amount (without any amount subject to, or counted toward, the Threshold Amount), and the Escrow Agent shall distribute such amount to Buyer in accordance with the terms of the Escrow Agreement;
(v) if the Estimated Working Capital and the Closing Date Working Capital are both greater than $1,250,000 and the Closing Date Working Capital is less than the Estimated Working Capital, then Buyer shall be entitled to recover an amount equal to (1) the Estimated Working Capital minus (2) the Closing Date Working Capital from the Escrow Amount (without any amount subject to, or counted toward, the Threshold Amount), and the Escrow Agent shall distribute such amount to Buyer in accordance with the terms of the Escrow Agreement;
(vi) if the Estimated Working Capital and the Closing Date Working Capital are both greater than $1,250,000 and the Closing Date Working Capital is greater than the Estimated Working Capital, then Buyer shall pay to each Rights Holder that has complied with the exchange requirements set forth in Section 1.14 an amount equal to such Rights Holder’s Pro Rata Share of (1) the Closing Date Working Capital minus (2) the Estimated Working Capital in accordance with the provisions of Section 10(cpayment instructions set forth on the Spreadsheet;
(vii) below. If if the Estimated Working Capital as agreed pursuant to this Section 10 is greater than $1,250,000 and the Closing Date Working Capital is less than zero$750,000, then Sellers Buyer shall be obligated entitled to pay Buyer recover an amount not to exceed the Purchase Price in cash equal to that (1) the Estimated Working Capital, minus (2) the Closing Date Working Capital, minus (3) $500,000 from the Escrow Amount (without any amount that would bring subject to, or counted toward, the Working Capital to zero. The payment required to be made pursuant to this Section 10 shall first be satisfied by the receipt by Buyer of the Good Faith Deposit. If the Good Faith Deposit is insufficient to satisfy the payment required by this Section 10, such additional amount shall be paid by the Sellers, (i) by delivery of the Restricted Shares (valued at the Restricted Share PriceThreshold Amount), then (ii) and the Company Notes (valued at face value plus accrued interest) and then (iii) if a deficiency still remains by delivery of cash promptly upon the agreement as Escrow Agent shall distribute such amount to the amount of Working Capital in immediately available funds Buyer in accordance with the instructions provided by Buyer. “terms of the Escrow Agreement;
(viii) if the Estimated Working Capital” means Capital is less than $750,000 and the Closing Date Working Capital is within the Working Capital Collar, then Buyer shall pay to each Rights Holder that has complied with the exchange requirements set forth in Section 1.14 an amount equal to such Rights Holder’s Pro Rata Share of (1) $750,000 minus (2) the Company’s current assets minus current liabilities Estimated Working Capital in accordance with the payment instructions set forth on the Spreadsheet;
(each expressed as a positive numberix) as of if the Estimated Working Capital is less than $750,000 and the Closing Date as determined Working Capital is greater than $1,250,000, then Buyer shall pay to each Rights Holder that has complied with the exchange requirements set forth in Section 1.14 an amount equal to such Rights Holder’s Pro Rata Share of (1) the Closing Date Working Capital, minus (2) the Estimated Working Capital, minus (3) $500,000 in accordance with GAAPthe payment instructions set forth on the Spreadsheet;
(x) if the Estimated Working Capital and the Closing Date Working Capital are both less than $750,000 and the Closing Date Working Capital is less than the Estimated Working Capital, except that for purposes of this calculationthen Buyer shall be entitled to recover an amount equal to (1) the Estimated Working Capital minus (2) the Closing Date Working Capital from the Escrow Amount (without any amount subject to, current assets or counted toward, the Threshold Amount), and the Escrow Agent shall exclude prepaid insurance unamortized at distribute such amount to Buyer in accordance with the acquisition date and current liabilities shall exclude the remainder terms of the premium liability due related Escrow Agreement; and
(xi) if the Estimated Working Capital and the Closing Date Working Capital are both less than $750,000 and the Closing Date Working Capital is greater than the Estimated Working Capital, then Buyer shall pay to each Rights Holder that has complied with the current year prepaid insurance at exchange requirements set forth in Section 1.14 an amount equal to such Rights Holder’s Pro Rata Share of (1) the acquisition date and current liabilities shall also exclude Closing Date Working Capital minus (2) the twelve months of lease/purchase obligations for tanks due to DiVinci of $21,000 ($1,750 per month for twelve months) at Estimated Working Capital in accordance with the acquisition date, and provided further, that current liabilities shall exclude amounts included payment instructions set forth on the Preliminary Working Capital Adjustment ScheduleSpreadsheet.”
Appears in 1 contract
Samples: Merger Agreement (Atmel Corp)
Working Capital Adjustment. Section 10(a(1) The Vendors and the Purchaser agree to use all reasonable efforts to cause the Chief Financial Officer of the Agreement is hereby amended Company to prepare and restated it in its entiretydeliver to the Purchaser and the Vendors, as follows:soon as reasonably practicable after March 31, 1997, a statement of the consolidated working capital of the Company as at March 31, 1997 (the "Working Capital Statement"). The Working Capital Statement shall be prepared substantially in the form of the Forecast Working Capital Statement and shall be prepared on a basis consistent with the basis on which the Forecast Working Capital Statement was prepared (including that each line item of the Working Capital Statement reflects the same ledger accounts used to calculate the corresponding line item in the Forecast Working Capital Statement, with no changes to accruals or reserves other than in the normal course for Taxes relating to periods after December 31, 1996 and with no inclusion of cash received by Holdco on or prior to March 31, 1997 in respect of the subscription price for the common shares to be issued to Investco or the Management Vendors).
(a2) Attached hereto If the Net Working Capital Deficiency as Annex II is a list reflected in the Working Capital Statement prepared in accordance with Section 2.4(a), (i) exceeds $8,989,000, each Vendor shall pay its Pro Rata Share of outstanding liabilities known the amount of such excess to the Company Purchaser or (ii) is less than $7,989,000, the Purchaser shall pay to each Vendor that Vendor's Pro Rata Share of the amount by which the Net Working Capital Deficiency is less than $7,989,000. Any payment required by this Section 2.4 shall be deemed to be an adjustment to the Purchase Price and Buyer as shall be made promptly following finalization of the Working Capital Statement (taking into account the resolution of any objection made in accordance with the following provisions of this Section 2.4) by delivery to the party entitled thereto of a certified cheque or bank draft, drawn on a Canadian chartered bank in immediately available funds, payable to such party.
(3) The Purchaser and Investco shall have a period of 10 days following the date of this Amendment, which will cause the post-closing calculation of Working Capital to be less than zero (the “Preliminary Working Capital Adjustment Schedule”). The Purchase Price has been reduced by an amount equal to the amount of these liabilities as shown on the Preliminary Working Capital Adjustment Schedule, or $337,652.08. On or before sixty (60) days after the Closing Date, the Company shall provide Sellers with a statement showing its calculation of Working Capital (the “Working Capital Statement”), together with its supporting documentation. The Company and Sellers shall have an additional fifteen (15) day period (the “Review Period”) following the delivery receipt of the Working Capital Statement to agree review and raise any objection to the same. For the purposes of such review, the Purchaser and Investco and their authorized representatives shall have full access to the Chief Financial Officer of the Company and all working papers, ledgers, schedules and other documentation that were used or relied upon the amount of Working Capital in accordance connection with the provisions preparation of Section 10(c) below. If Working Capital as agreed pursuant to this Section 10 is less than zero, then Sellers shall be obligated to pay Buyer an amount not to exceed the Purchase Price in cash equal to that amount that would bring the Working Capital Statement. If no objection to zerothe Working Capital Statement is given by either such party within such 10-day period, the Working Capital Statement shall be deemed to have been approved by each party as of the last day of such period.
(4) If either such party (the "Objecting Party") objects to any aspect of the Working Capital Statement within such 10-day period by giving notice to the Company and the other such party setting out in reasonable detail the nature of such objection, the Objecting Party shall have the right to engage within 14 days after the receipt of the Working Capital Statement any Major Accounting Firm (the "First Reviewing Firm") to review and prepare, within 30 days after the commencement of their engagement, a written report on the basis of the preparation of the Working Capital Statement and, if the First Reviewing Firm determines that there has been an error in the original preparation of the Working Capital Statement, the First Reviewing Firm shall provide a revised Working Capital Statement on the basis set out in Section 2.4(a) which, subject to the following sentence, shall be binding on the parties hereto. If the Purchaser or Investco (whichever is not the Objecting Party) objects to any aspect of the report or the revised Working Capital Statement by the First Reviewing Firm, then such party (the "Second Objecting Party") may engage, within 14 days after the receipt of the report and revised Working Capital Statement prepared by the First Reviewing Firm, any other Major Accounting Firm (the "Second Reviewing Firm") to review the report and Working Capital Statement prepared by the First Reviewing Firm. The payment Second Reviewing Firm shall consult with the First Reviewing Firm with a view to settling a final Working Capital Statement on the basis set out in Section 2.4(a). If the First Reviewing Firm and the Second Reviewing Firm cannot agree within 14 days after the engagement of the Second Reviewing Firm on the basis upon which the Working Capital Statement should be prepared, the matter shall be referred to a third Major Accounting Firm (the "Arbitrating Firm") selected by mutual agreement of the First Reviewing Firm and the Second Reviewing Firm (and failing any such agreement within such 14-day period, either such party may make application to the Ontario Court (General Division) on not less than three days= notice to the other party for the appointment of the Arbitrating Firm). The Arbitrating Firm shall prepare a Working Capital Statement on the basis set out in Section 2.4(a) which shall be final, conclusive and binding upon the parties hereto. For greater certainty, no Vendor other than Investco shall be entitled to raise any objection under Section 2.4(c) or this Section 2.4(d).
(5) For the purposes of this Section 2.4(e), the Vendors shall be considered collectively as a single party, any objection to any Working Capital Statement made by Investco shall be considered to have been made on behalf of all the Vendors, and any amount required to be made pursuant to paid under this Section 10 shall first be satisfied 2.4(e) by the receipt by Buyer of the Good Faith Deposit. If the Good Faith Deposit is insufficient to satisfy the payment required by this Section 10, such additional amount Vendors shall be paid by the Sellers, (i) by delivery Vendors in their Pro Rata Shares. The Objecting Party shall pay all fees and expenses of the Restricted Shares (valued at First Reviewing Firm and the Restricted Share Price), then (ii) the Company Notes (valued at face value plus accrued interest) Second Objecting Party shall pay all fees and then (iii) if a deficiency still remains by delivery of cash promptly upon the agreement as to the amount of Working Capital in immediately available funds in accordance with the instructions provided by Buyer. “Working Capital” means an amount equal to the Company’s current assets minus current liabilities (each expressed as a positive number) as expenses of the Closing Date as determined in accordance with GAAP, except that for purposes of this calculation, current assets Second Reviewing Firm. The Objecting Party and the Second Objecting Party shall exclude prepaid insurance unamortized at the acquisition date and current liabilities shall exclude the remainder each pay 50% of the premium liability due related to fees and expenses of the current year prepaid insurance at the acquisition date and current liabilities shall also exclude the twelve months of lease/purchase obligations for tanks due to DiVinci of $21,000 ($1,750 per month for twelve months) at the acquisition date, and provided further, that current liabilities shall exclude amounts included on the Preliminary Working Capital Adjustment ScheduleArbitrating Firm.”
Appears in 1 contract
Samples: Share Purchase Agreement (First Union Real Estate Equity & Mortgage Investments)
Working Capital Adjustment. Section 10(aii) of Within 30 Business Days after the Agreement is hereby amended Closing Date, Purchaser shall prepare and restated it in its entirety, as follows:
(a) Attached hereto as Annex II is a list of outstanding liabilities known deliver to Xxxxxxx an unaudited balance sheet for the Company and Buyer as of the date close of this Amendmentbusiness on the Closing Date (as it may be adjusted pursuant to Section 2.3(b), which will cause the post-closing calculation of Working Capital to be less than zero (the “Preliminary Working Capital Adjustment ScheduleClosing Date Balance Sheet”). Xxxxxxx shall cooperate with Purchaser and its outside accountants in the preparation of the Closing Date Balance Sheet. The Purchase Price has been reduced by an amount Closing Date Balance Sheet shall (i) be prepared on a consistent basis and using categories, principles and policies consistent with those contained in the Reference Balance Sheet, with no changes in the method of application of the Company’s accounting policies or changes in the method of applying the Company’s use of estimates; (ii) include line items (including the constituent components of such line items) consistent with those in the Reference Balance Sheet, and (iii) reflect a value for Inventory as of December 31, 2006, equal to $32.568 million, which shall be adjusted solely to reflect additions and removals from inventory during the amount month of these liabilities as shown January 2007. On the Closing Date or, if not reasonably practicable to perform on the Preliminary Working Capital Adjustment ScheduleClosing Date, or $337,652.08. On or before sixty (60) days as promptly as practicable after the Closing Date, the Company parties shall provide Sellers with perform a statement showing its calculation physical count of all inventory as of January 31, 2007 for purposes of calculating and verifying Working Capital (the “Working Capital Statement”), together with its supporting documentation. The Company and Sellers shall have an additional fifteen (15) day period (the “Review Period”) following the delivery of the Working Capital Statement to agree upon the amount of Working Capital in accordance with the provisions of Section 10(c) below. If Working Capital as agreed pursuant to this Section 10 is less than zero, then Sellers shall be obligated to pay Buyer an amount not to exceed the Purchase Price in cash equal to that amount that would bring the Working Capital to zero. The payment required to be made pursuant to this Section 10 shall first be satisfied by the receipt by Buyer of the Good Faith Deposit. If the Good Faith Deposit is insufficient to satisfy the payment required by this Section 10, such additional amount shall be paid by the Sellers, (i) by delivery of the Restricted Shares (valued at the Restricted Share Price), then (ii) the Company Notes (valued at face value plus accrued interest) and then (iii) if a deficiency still remains by delivery of cash promptly upon the agreement as to the amount of Working Capital in immediately available funds in accordance with the instructions provided by Buyer. “Working Capital” means an amount equal to the Company’s current assets minus current liabilities (each expressed as a positive number) as of the Closing Date as determined in accordance with GAAPthe immediately preceding sentence. Each of Xxxxxxx and Purchaser shall have the right to have his or its representatives present at each such physical inventory. Xxxxxxx and his representatives shall have the right to review all work papers and procedures of Purchaser and its outside accountants used to prepare the Closing Date Balance Sheet and shall have the right to perform any other reasonable procedures necessary to verify the accuracy of the Closing Date Balance Sheet. Unless Xxxxxxx, except within 25 Business Days after delivery to Xxxxxxx of the Closing Date Balance Sheet, notifies Purchaser in writing that Xxxxxxx objects to the Closing Date Balance Sheet and specifies the basis for such objection, such Closing Date Balance Sheet shall become final and binding upon the parties for the purposes of this calculationSection 2.3. If Purchaser and Xxxxxxx are unable to resolve all of Xxxxxxx’x objections within 25 Business Days after any such notification has been given to Purchaser, current assets all remaining matters in dispute shall exclude prepaid insurance unamortized at be submitted to a nationally recognized public accounting firm mutually agreed upon by Purchaser and Xxxxxxx (an “Independent Accounting Firm”). In the acquisition date event Purchaser and current liabilities Xxxxxxx are unable to agree upon the selection of an Independent Accounting Firm within five Business Days after expiration of such 25 Business Day period, an Independent Accounting Firm shall exclude be appointed by the remainder American Arbitration Association. The Independent Accounting Firm shall make a final determination as to all remaining matters in dispute that shall be conclusive and binding on Purchaser and Xxxxxxx. Purchaser and Xxxxxxx each shall bear one-half of the premium liability due related fees, costs and expenses of the Independent Accounting Firm retained to the current year prepaid insurance at the acquisition date and current liabilities shall also exclude the twelve months of lease/purchase obligations for tanks due to DiVinci of $21,000 ($1,750 per month for twelve months) at the acquisition date, and provided further, that current liabilities shall exclude amounts included on the Preliminary Working Capital Adjustment Scheduleresolve any objection under this Section 2.3(a).”
Appears in 1 contract
Working Capital Adjustment. Section 10(a) of the Agreement is hereby amended and restated it in its entirety, as follows:
(a) Attached hereto as Annex II is a list of outstanding liabilities known to the Company and Buyer as of the date of this Amendment, which will cause the post-closing calculation of Working Capital to be less than zero (the “Preliminary Working Capital Adjustment Schedule”). The Purchase Price has been reduced by an amount equal to the amount of these liabilities as shown on the Preliminary Working Capital Adjustment Schedule, or $337,652.08. On or before sixty thirty (6030) days after the Closing Date, the Company shall provide Sellers with a statement showing its calculation of Working Capital (the “Working Capital Statement”), together with its supporting documentation. The Company and Sellers shall have an additional fifteen (15) day period (the “Review Period”) following the delivery of the Working Capital Statement to agree upon the amount of Working Capital in accordance with the provisions of Section 10(c) below. If Working Capital as agreed pursuant to this Section 10 is less than zero, then Sellers shall be obligated to pay Buyer an amount not to exceed the Purchase Price in cash equal to that amount that would bring the Working Capital to zero. The payment required to be made pursuant to this Section 10 shall first be satisfied by the receipt by Buyer of the Good Faith Deposit. If the Good Faith Deposit is insufficient to satisfy the payment required by this Section 10, such additional amount shall be paid by the Sellers, (i) by delivery of the Restricted Shares (valued at the Restricted Share Price), then (ii) the Company Notes (valued at face value plus accrued interest) and then (iii) if a deficiency still remains by delivery of cash cash, promptly upon the agreement as to the amount of Working Capital in immediately available funds in accordance with the instructions provided by Buyer. “Working Capital” means an amount equal to the Company’s current assets minus current liabilities (each expressed as a positive number) as of the Closing Date as determined in accordance with GAAP, except that for purposes of this calculation, current assets shall exclude prepaid insurance unamortized at the acquisition date and current liabilities shall exclude the remainder of the premium liability due related to the current year prepaid insurance at the acquisition date and current liabilities shall also exclude the twelve months of lease/purchase obligations for tanks due to DiVinci of $21,000 ($1,750 per month for twelve months) at the acquisition date, and provided further, that current liabilities shall exclude amounts included on the Preliminary Working Capital Adjustment Schedule.”
Appears in 1 contract
Samples: Stock Purchase Agreement (GreenHunter Energy, Inc.)
Working Capital Adjustment. Section 10(a) of the Agreement is hereby amended and restated it in its entirety, as follows:
(a) Attached hereto As soon as Annex II is a list of outstanding liabilities known to the Company and Buyer as of the date of this Amendmentpossible, which will cause the post-closing calculation of Working Capital to be less but not later than zero ninety (the “Preliminary Working Capital Adjustment Schedule”). The Purchase Price has been reduced by an amount equal to the amount of these liabilities as shown on the Preliminary Working Capital Adjustment Schedule90) days, or $337,652.08. On or before sixty (60) days after following the Closing Date, Purchaser shall prepare and deliver to the Shareholders the following (collectively, the "Closing Statements"):
(i) unaudited financial statements for the Company shall provide Sellers for the year ended December 31, 2015 and for the period from January 1, 2016 to the Closing Date and as at the Closing Date prepared in accordance with GAAP (the "Closing Financial Statements") (which Closing Financial Statements shall, for greater certainty, accrue for all Company Transaction Expenses and Change of Control Payments, if any (whether or not payable) and all Taxes of the Company up to the date of the Closing; (i) a statement showing its calculation of the Working Capital as determined by reference to the balance sheet contained in the Closing Financial Statements and the Pre-Closing Statement (the “"Closing Working Capital");
(ii) a calculation of:
(A) the amount by which the Closing Working Capital Statement”)exceeds or is less than, together as the case may be, zero; and
(B) the Purchase Price, as adjusted in accordance with its supporting documentationSection 1.6.
(b) The Shareholders and the Purchaser shall co-operate fully with each other in the calculation of the Closing Working Capital and the preparation of the Closing Statements.
(c) The Shareholders shall have thirty (30) days from receipt of the Closing Statements within which to review the Closing Financial Statements. The For the purposes of this review, the Purchaser shall permit and shall cause the Company to permit the Shareholders to examine all working papers, schedules, accounting books and records and other documents and information used or prepared by the Purchaser or the Company in connection with the preparation of the Closing Statements and to have reasonable access to appropriate personnel of the Company and Sellers the Purchaser for the Shareholders to verify the accuracy and presentation and other matters relating to the preparation of the Closing Statements. Any group of Shareholders that collectively held at least two thirds (2/3) of the Shares of the Company immediately prior to the Closing ("Majority Shareholders") may dispute any of the items in the Closing Statements by written notice (an "Objection Notice") to Purchaser within the same thirty (30) days. Such Majority Shareholder(s) shall notify the other Shareholders as set out in Section 8.4(b) .. If the Majority Shareholders have not delivered an additional Objection Notice to Purchaser within this thirty (30) day period, the Shareholders shall be deemed to have accepted the Closing Statements. If the Majority Shareholders deliver an Objection Notice, the Majority Shareholders and Purchaser shall work expeditiously and in good faith in an attempt to resolve all of the items in dispute within fifteen (15) days of receipt of the Objection Notice. If all items in dispute are not resolved within this fifteen (15) day period or such additional time as is agreed between the Majority Shareholders and the Purchaser in writing, the Shareholders and Purchaser shall engage KPMG LLP (the “Review Period”"Independent Auditor") following to resolve the delivery remaining items in dispute.
(d) The Shareholders and the Purchaser shall furnish to the Independent Auditor those working papers, schedules and other documents, accounting books and records and information relating to the items in dispute, that are available to that Party or its auditors as the Independent Auditor may require. The Shareholders and the Purchaser shall instruct the Independent Auditor that time is of the Working Capital Statement essence in proceeding with its determination of any dispute, and the decision of the Independent Auditor with respect to agree upon any item in dispute is to be in writing and, absent any manifest error, is final and binding on the amount Shareholders and Purchaser with no rights of Working Capital challenge, review or appeal to the courts in accordance any manner. The Independent Auditor, in making its determination of any dispute, is acting as an expert and not as an arbitrator and is not required to engage in a judicial inquiry worked out in a judicial manner.
(e) On agreement or decision, as the case may be, with respect to all items in dispute, the provisions of Section 10(cClosing Statements are deemed to be amended as may be necessary to reflect the agreement or the decision, as the case may be. In this event, references in this Agreement to the Closing Statements will be references to the Closing Statements, as so amended.
(f) below. If Working Capital as agreed pursuant to this Section 10 is less than zero, then Sellers The Shareholders collectively shall be obligated to pay Buyer an amount not to exceed the Purchase Price in cash equal to that amount that would bring the Working Capital to zero. The payment required to be made pursuant to this Section 10 shall first be satisfied by the receipt by Buyer responsible for one-half of the Good Faith Deposit. If fees and expenses of the Good Faith Deposit is insufficient to satisfy the payment required by this Section 10, such additional amount Independent Auditor and Purchaser shall be paid by the Sellers, (i) by delivery responsible for one-half of the Restricted Shares (valued at the Restricted Share Price), then (ii) the Company Notes (valued at face value plus accrued interest) fees and then (iii) if a deficiency still remains by delivery of cash promptly upon the agreement as to the amount of Working Capital in immediately available funds in accordance with the instructions provided by Buyer. “Working Capital” means an amount equal to the Company’s current assets minus current liabilities (each expressed as a positive number) as expenses of the Closing Date as determined in accordance with GAAP, except that for purposes of this calculation, current assets shall exclude prepaid insurance unamortized at the acquisition date and current liabilities shall exclude the remainder Independent Auditor but each of the premium liability due related to the current year prepaid insurance at the acquisition date Purchaser and current liabilities Shareholders shall also exclude the twelve months of lease/purchase obligations otherwise be responsible for tanks due to DiVinci of $21,000 ($1,750 per month for twelve months) at the acquisition date, its own costs and provided further, that current liabilities shall exclude amounts included on the Preliminary Working Capital Adjustment Scheduleexpenses.”
Appears in 1 contract
Samples: Share Purchase Agreement (Trillium Therapeutics Inc.)
Working Capital Adjustment. In the event the Adjusted Working Capital (as said term is defined below), of the Seller with respect to the Facility, calculated as of the Closing Date (the "CLOSING DATE ADJUSTED WORKING CAPITAL"), shall equal or exceed the Adjusted Working Capital of the Seller with respect to the Facility, calculated as of March 31, 1998, a schedule of which is attached hereto as EXHIBIT 2.6-1 (the "BASE ADJUSTED WORKING CAPITAL") or in the event the Base Adjusted Working Capital shall exceed the Closing Date Adjusted Working Capital by an amount not greater than $100,000, then no adjustment to the Purchase Price will be made pursuant to this Section 10(a2.6. For purposes hereof, the term "ADJUSTED WORKING CAPITAL" shall mean (i) the sum of the current assets (net of any reserves therefor) of the Agreement is hereby amended Seller which are of a type to be included in the Assets minus (ii) the sum of the current liabilities of the Seller which are of a type to be included in the Assumed Liabilities. The Adjusted Working Capital shall be determined in accordance with generally accepted accounting principles consistently applied, shall be determined employing the same methodology with respect to bad debt reserves and restated it Medicare/Medicaid contractual reserves as that employed in its entiretypreparing the Financial Statements and shall be calculated and prepared in a manner consistent with, as follows:
including the assumptions, process and procedures described in EXHIBIT 2.6-2 and otherwise in a manner consistent with the Financial Statements. Within twenty-one (a21) Attached hereto as Annex II is a list days of outstanding liabilities known the date hereof, the Seller and the Shareholder shall calculate, prepare and deliver to the Company Purchaser a statement in reasonable detail of the Adjusted Working Capital as of April 30, 1998 and Buyer May 31, 1998, and within forty-five (45) days of each month thereafter until the Closing Date, the Seller and the Shareholder shall calculate, prepare and deliver to the Purchaser a statement in reasonable detail of the Adjusted Working Capital as of the date end of this Amendment, which will cause the post-closing calculation of Working Capital to be less than zero (the “Preliminary Working Capital Adjustment Schedule”)each such month. The Purchase Price has been reduced by an amount equal to the amount of these liabilities as shown on the Preliminary Working Capital Adjustment Schedule, or $337,652.08. On or before sixty (60) Within 90 calendar days after the Closing Date, the Company Purchaser shall provide Sellers with prepare and deliver to the Shareholder a statement showing its calculation of Working Capital (the “Working Capital Statement”), together with its supporting documentation. The Company and Sellers shall have an additional fifteen (15) day period (the “Review Period”) following the delivery of the Working Capital Statement to agree upon the amount of Working Capital in accordance with the provisions of Section 10(c) below. If Working Capital as agreed pursuant to this Section 10 is less than zero, then Sellers shall be obligated to pay Buyer an amount not to exceed the Purchase Price in cash equal to that amount that would bring the Working Capital to zero. The payment required to be made pursuant to this Section 10 shall first be satisfied by the receipt by Buyer of the Good Faith Deposit. If the Good Faith Deposit is insufficient to satisfy the payment required by this Section 10, such additional amount shall be paid by the Sellers, (i) by delivery of the Restricted Shares (valued at the Restricted Share Price), then (ii) the Company Notes (valued at face value plus accrued interest) and then (iii) if a deficiency still remains by delivery of cash promptly upon the agreement as to the amount of Working Capital in immediately available funds in accordance with the instructions provided by Buyer. “Working Capital” means an amount equal to the Company’s current assets minus current liabilities (each expressed as a positive number) as of the Closing Date as determined Adjusted Working Capital in accordance reasonable detail, together with GAAPthe calculation and the components thereof (the "PURCHASER'S WCA STATEMENT"). The Purchaser's WCA Statement will be reviewed by the Shareholder (and, except that for purposes if the Shareholder so chooses and at its expense, by a firm of this calculationindependent certified public accountants), current assets shall exclude prepaid insurance unamortized at the acquisition date and current liabilities shall exclude the remainder who shall, not later than 60 calendar days after receipt of the premium liability due related Purchaser's WCA Statement, raise any objections it has to the current year prepaid insurance at Closing Date Adjusted Working Capital calculation set forth in the acquisition date and current liabilities shall also exclude Purchaser's WCA Statement by notifying the twelve months of lease/purchase obligations for tanks due to DiVinci of $21,000 ($1,750 per month for twelve months) at Purchaser in writing within such time period in a statement indicating the acquisition dateitem or items disputed, and provided furthercontaining, that current liabilities in reasonable detail, the nature of the Shareholder's objections (a "WCA OBJECTION NOTICE"). During such 60-day period, the Shareholder and any such independent certified public accountants shall exclude amounts included on the Preliminary Working Capital Adjustment Schedule.”have full access to the
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