Adjustment to Consideration. (a) After the Closing, Buyer shall deliver to Seller a statement (based on draft Tax Returns of Lion and Paline Pipeline Company (and any affiliated, consolidated, combined or unitary group of which either of Lion and Paline Pipeline Company is a member) prepared by PricewaterhouseCoopers LLP, KPMG LLP or another mutually acceptable independent accounting firm) that sets forth the amount of any Taxes that are included in the Paline Taxes, together with reasonable details supporting the calculation of the Paline Taxes (the “Paline Tax Statement”). Seller shall have 45 days from the date of receipt of the Paline Tax Statement to pay to Buyer an amount equal to any undisputed portion of the Paline Taxes set forth in the Paline Tax Statement by wire transfer of immediately available funds to an account or accounts designated in writing by Buyer. In the event that Seller does not agree with the calculation of the Paline Taxes as set forth in the Paline Tax Statement, Seller shall so notify Buyer in writing within 10 Business Days after the date of receipt of the Paline Tax Statement, setting forth in writing and in reasonable detail the nature of Seller’s objections to the calculation of Paline Taxes as set forth in the Paline Tax Statement. Seller and Buyer shall negotiate in good faith the disputed portion of the Paline Taxes calculation. In the event the Parties are unable to reach an agreement within 10 days after Buyer receives written notice of any disputed amount (or such later date as may be agreed by Buyer and Seller), then the Parties will resolve such dispute in accordance with the procedures set forth in Exhibit N. Any amount to be paid by Seller to Buyer pursuant the dispute resolution process conducted pursuant to Exhibit N shall be paid within 10 Business Days of such determination by wire transfer of immediately available funds to an account or accounts designated in writing by Buyer. (b) If, after payment of the Paline Taxes pursuant to Section 2.4(a), there is a subsequent adjustment in the amount of the Paline Taxes as a result of any Proceeding related to Taxes, and (i) if any portion of the Paline Taxes previously paid by Seller pursuant to Section 2.4(a) is finally determined as a result of such adjustment to not have been owing, then Buyer shall pay to Seller such portion that is determined not to be owing or (ii) if the Paline Taxes are finally determined as a result of such adjustment to be in excess of the Paline Taxes originally paid, then Seller shall pay to Buyer such excess amount. Any amount to be paid by Seller or Buyer pursuant to the immediately preceding sentence shall be paid within 10 Business Days of the determination of the adjustment by wire transfer of immediately available funds to an account or accounts designated in writing by the recipient of such payment. (c) If, after payment of the Paline Taxes pursuant to Section 2.4(a), (i) the Tax basis of the assets of Paline Pipeline Company following the Paline Pipeline Equity Transfer is reduced as a result of a Proceeding, (ii) the amount of the Paline Taxes would have been reduced had the Paline Taxes been determined based on an amount of consideration payable in the Paline Pipeline Equity Transfer that is consistent with the amount of such reduced Tax basis and (iii) Buyer, the Companies or their Affiliates are entitled to (or upon filing of an amended Tax Return or other appropriate form would have been entitled to) receive a refund (whether by payment, credit, offset or otherwise) related to the Paline Taxes described in clause (ii) of this sentence (a “Paline Refund”), then Buyer shall pay to Seller the amount of the Paline Refund but only to the extent such amount exceeds any additional Taxes that are incurred (or upon filing of an amended Tax Return or other appropriate form would have been incurred) by Buyer, the Companies or their Affiliates as a result of reducing the amount of consideration payable in the Paline Pipeline Equity Transfer in a manner that is consistent with the amount of such reduced Tax basis (including any Taxes resulting from cancellation of indebtedness income resulting from such reduction of consideration). The Parties shall cooperate, and shall cause their Affiliates to cooperate, in order to take any necessary steps to claim any such refund. The determination of the amount of and the timing of any payment under the first sentence of this Section 2.4(c) shall be based on the principles of Section 2.4(a) and without regard to Buyer’s consolidated Tax group’s loss or credit carrybacks. Additionally, in the event a Paline Refund has actually been obtained and is subsequently challenged and adjusted as a result of any Proceeding related to Taxes then the principles of Section 2.4(b) and Section 7.6 shall apply to such adjusted Paline Refund.
Appears in 1 contract
Adjustment to Consideration. (a) After Within ten (10) days prior to the Closing, Buyer shall deliver to Seller a statement (based on draft Tax Returns of Lion and Paline Pipeline Company (and any affiliated, consolidated, combined or unitary group of which either of Lion and Paline Pipeline Company is a member) prepared by PricewaterhouseCoopers LLP, KPMG LLP or another mutually acceptable independent accounting firm) that sets forth the amount of any Taxes that are included in the Paline Taxes, together with reasonable details supporting the calculation of the Paline Taxes (the “Paline Tax Statement”). Seller shall have 45 days from the date of receipt of the Paline Tax Statement to pay to Buyer an amount equal to any undisputed portion of the Paline Taxes set forth in the Paline Tax Statement by wire transfer of immediately available funds to an account or accounts designated in writing by Buyer. In the event that Seller does not agree with the calculation of the Paline Taxes as set forth in the Paline Tax StatementClosing Date, Seller shall so notify prepare and deliver to Buyer in writing within 10 Business Days after the date of receipt a balance sheet of the Paline Tax StatementSeller (the "Closing Balance Sheet") certified as true, setting forth in writing complete and in reasonable detail the nature accurate, by an authorized officer of Seller’s objections to the calculation of Paline Taxes as set forth in the Paline Tax Statement. Seller and Buyer The Closing Balance Sheet shall negotiate in good faith the disputed portion of the Paline Taxes calculation. In the event the Parties are unable to reach an agreement within 10 days after Buyer receives written notice of any disputed amount (or such later date as may be agreed by Buyer and Seller), then the Parties will resolve such dispute prepared in accordance with the procedures set forth same principles applied in Exhibit N. Any amount preparation of the Financial Statements, and shall fairly and accurately present the assets, Liabilities (including reserves) and financial position of the Seller, as of the Closing Date. Buyer shall have five (5) business days following delivery of the Closing Balance Sheet to be paid by notify Seller to Buyer pursuant the dispute resolution process conducted pursuant to Exhibit N shall be paid within 10 Business Days of such determination by wire transfer of immediately available funds to an account or accounts designated in writing by Buyerof any objections to the Closing Balance Sheet.
(b) IfIf Buyer does not object to the Closing Balance Sheet, after payment of it shall cause its Subsidiary to issue at Closing, the Paline Taxes pursuant to Section 2.4(a), there is a subsequent adjustment Note in the principal amount of resulting from the Paline Taxes as a result of any Proceeding related to Taxesdifference between $2,100,000.00 minus the Projected Cash Shortfall Amount and the Assumed Liabilities, and (i) if any portion of the Paline Taxes previously paid by Seller pursuant to Section 2.4(a) is finally determined as a result of such adjustment to not have been owing, then Buyer shall pay to Seller such portion that is determined not to be owing or (ii) if the Paline Taxes are finally determined as a result of such adjustment to be in excess of the Paline Taxes originally paid, then Seller shall pay to Buyer such excess amount. Any amount to be paid by Seller or Buyer pursuant to the immediately preceding sentence which liabilities shall be paid within 10 Business Days of reflected on the determination of the adjustment by wire transfer of immediately available funds to an account or accounts designated in writing by the recipient of such paymentClosing Balance Sheet.
(c) If, after payment of the Paline Taxes pursuant If Buyer does object to Section 2.4(a), (i) the Tax basis of the assets of Paline Pipeline Company following the Paline Pipeline Equity Transfer is reduced as a result of a Proceeding, (ii) the amount of the Paline Taxes would have been reduced had the Paline Taxes been determined based on an amount of consideration payable any item in the Paline Pipeline Equity Transfer that is consistent Closing Balance Sheet, it shall notify Seller in writing prior to Closing, and Buyer and Seller shall use reasonable efforts to resolve any differences with respect to the Closing Balance Sheet. In the event Seller and Buyer are unable to reach agreement prior to Closing, the Parties shall proceed with the amount Closing and shall submit the disputed items for resolution post-Closing to an independent accounting firm of such reduced Tax basis and (iii) Buyer, the Companies nationally or their Affiliates are entitled to (or upon filing of an amended Tax Return or other appropriate form would have been entitled to) receive a refund (whether regionally recognized standing selected by payment, credit, offset or otherwise) related to the Paline Taxes described in clause (ii) of this sentence both Parties (a “Paline Refund”), then Buyer shall pay to Seller the amount of the Paline Refund but only to the extent such amount exceeds any additional Taxes that are incurred (or upon filing of an amended Tax Return or other appropriate form would have been incurred) by Buyer, the Companies or their Affiliates as a result of reducing the amount of consideration payable in the Paline Pipeline Equity Transfer in a manner that is consistent with the amount of such reduced Tax basis (including any Taxes resulting from cancellation of indebtedness income resulting from such reduction of consideration"Qualified Accountant"). The Parties shall cooperate, and shall cause their Affiliates to cooperate, in order to take any necessary steps to claim any such refund. The Qualified Accountant's determination of on the amount of items on dispute on the Closing Balance Sheet (the "Final Balance Sheet") and the timing pro-rata allocation of any payment under the first sentence of this Section 2.4(cits fees, expenses and costs (as hereinafter set forth) shall be based final and binding on Buyer and Seller. The fees, expenses and costs of the Qualified Accountant shall be borne by Seller and Buyer in inverse proportion as each of them may prevail on the principles matters resolved by the Qualified Accountant, which pro-rata allocation will also be determined by the Qualified Accountant and be included in its final decision. Upon receipt of Section 2.4(a) and without regard the Final Balance Sheet, Buyer shall cause its Subsidiary to Buyer’s consolidated Tax group’s loss or credit carrybacks. Additionally, issue the Note in the event a Paline Refund has actually been obtained principal amount resulting from the difference between $2,100,000.00 and is subsequently challenged and adjusted the Assumed Liabilities as a result of any Proceeding related reflected in the Final Balance Sheet, which Note shall be subject to Taxes then the principles of further adjustment as set forth in Section 2.4(b) and Section 7.6 shall apply to such adjusted Paline Refund1.6 below.
Appears in 1 contract
Sources: Asset Purchase and Sale Agreement (Bridgepoint Education Inc)
Adjustment to Consideration. (a) After The Parties agree that the ClosingPurchase Price was determined as if the net working capital of the Corporation was $1,000,000 at the close of business on the Closing Date (the "CONSIDERATION NET WORKING CAPITAL"). The Parties agree that the estimate of net working capital at the close of business on the Closing Date is $1,044,000 (the "ESTIMATED NET WORKING CAPITAL"). Accordingly, Buyer the Parties agree that the Purchase Price shall deliver be increased on the Closing Date by $22,000 (the "UPWARD ADJUSTMENT AMOUNT").
(b) The Parties agree to Seller make a statement subsequent adjustment to the Purchase Price on the Adjustment Date (based as that term is defined in Section 6.1) to reflect the actual net working capital of the Corporation on draft Tax Returns of Lion and Paline Pipeline Company the Closing Date (and any affiliatedthe "ACTUAL NET WORKING CAPITAL"), consolidatedas shown on the balance sheet to be prepared in accordance with paragraph 3.5
(c) hereof, combined or unitary group of which either of Lion and Paline Pipeline Company is a memberas follows:
(i) prepared by PricewaterhouseCoopers LLP, KPMG LLP or another mutually acceptable independent accounting firmSubject to paragraph 3.5(b)(ii): (a) that sets forth if the amount of any Taxes that are included obtained by subtracting the Consideration Net Working Capital from the Actual Net Working Capital exceeds the Upward Adjustment Amount, then the Purchaser shall pay such excess to the Vendors, allocated as specified in the Paline TaxesSchedule "A", together with reasonable details supporting the calculation within five Business Days of the Paline Taxes (the “Paline Tax Statement”). Seller shall have 45 days from the date of receipt of the Paline Tax Statement to pay to Buyer an amount equal to any undisputed portion of the Paline Taxes set forth in the Paline Tax Statement by wire transfer of immediately available funds to an account or accounts designated in writing by Buyer. In the event that Seller does not agree with the calculation of the Paline Taxes as set forth in the Paline Tax Statement, Seller shall so notify Buyer in writing within 10 Business Days after the date of receipt of the Paline Tax Statement, setting forth in writing and in reasonable detail the nature of Seller’s objections to the calculation of Paline Taxes as set forth in the Paline Tax Statement. Seller and Buyer shall negotiate in good faith the disputed portion of the Paline Taxes calculation. In the event the Parties are unable to reach an agreement within 10 days after Buyer receives written notice of any disputed amount Adjustment Date (or such later date as may be agreed when the Actual Net Working Capital is settled in accordance with Section 3.5(c)); or (b) if the amount obtained by Buyer and Seller)subtracting the Consideration Net Working Capital from the Actual Net Working Capital so reflected is less than the Upward Adjustment Amount, then the Parties will resolve Vendors shall pay (in the proportions as specified in Schedule "A") such dispute deficiency to the Purchaser within five Business Days of the Adjustment Date (or such later date when the Actual Net Working Capital is settled in accordance with Section 3.5(c)); and
(ii) In the procedures set forth in Exhibit N. Any amount to be paid by Seller to Buyer pursuant event that the dispute resolution process conducted pursuant to Exhibit N shall be paid Actual Net Working Capital is less than the Consideration Net Working Capital, then, within 10 five Business Days of the Adjustment Date (or such determination by wire transfer of immediately available funds to an account or accounts designated later date when the Actual Net Working Capital is settled in writing by Buyer.
(b) If, after payment of the Paline Taxes pursuant to accordance with Section 2.4(a3.5(c)), there is a subsequent adjustment the Vendors shall pay (in the proportions as specified in Schedule "A") to the Purchaser an amount equal to the Upward Adjustment Amount plus the amount of the Paline Taxes as a result of any Proceeding related to Taxes, and (i) if any portion of difference between the Paline Taxes previously paid by Seller pursuant to Section 2.4(a) is finally determined as a result of such adjustment to not have been owing, then Buyer shall pay to Seller such portion that is determined not to be owing or (ii) if the Paline Taxes are finally determined as a result of such adjustment to be in excess of the Paline Taxes originally paid, then Seller shall pay to Buyer such excess amount. Any amount to be paid by Seller or Buyer pursuant to the immediately preceding sentence shall be paid within 10 Business Days of the determination of the adjustment by wire transfer of immediately available funds to an account or accounts designated in writing by the recipient of such payment.
(c) If, after payment of the Paline Taxes pursuant to Section 2.4(a), (i) the Tax basis of the assets of Paline Pipeline Company following the Paline Pipeline Equity Transfer is reduced as a result of a Proceeding, (ii) the amount of the Paline Taxes would have been reduced had the Paline Taxes been determined based on an amount of consideration payable in the Paline Pipeline Equity Transfer that is consistent with the amount of such reduced Tax basis and (iii) Buyer, the Companies or their Affiliates are entitled to (or upon filing of an amended Tax Return or other appropriate form would have been entitled to) receive a refund (whether by payment, credit, offset or otherwise) related to the Paline Taxes described in clause (ii) of this sentence (a “Paline Refund”), then Buyer shall pay to Seller the amount of the Paline Refund but only to the extent such amount exceeds any additional Taxes that are incurred (or upon filing of an amended Tax Return or other appropriate form would have been incurred) by Buyer, the Companies or their Affiliates as a result of reducing the amount of consideration payable in the Paline Pipeline Equity Transfer in a manner that is consistent with the amount of such reduced Tax basis (including any Taxes resulting from cancellation of indebtedness income resulting from such reduction of consideration). The Parties shall cooperate, and shall cause their Affiliates to cooperate, in order to take any necessary steps to claim any such refund. The determination of the amount of Actual Net Working Capital and the timing of any payment under the first sentence of this Section 2.4(c) shall be based on the principles of Section 2.4(a) and without regard to Buyer’s consolidated Tax group’s loss or credit carrybacks. Additionally, in the event a Paline Refund has actually been obtained and is subsequently challenged and adjusted as a result of any Proceeding related to Taxes then the principles of Section 2.4(b) and Section 7.6 shall apply to such adjusted Paline RefundConsideration Net Working Capital.
Appears in 1 contract
Adjustment to Consideration. (a) After Within 45 days following the ClosingClosing Date, Buyer shall deliver Parent may, at its election, cause to Seller be prepared and delivered to the Stockholder Representative an unaudited balance sheet of the Surviving Corporation as of the Closing Date (the “Adjusted Balance Sheet”). The Adjusted Balance Sheet will be prepared in accordance with GAAP consistently applied on a statement basis consistent with the Financials. In the event that, pursuant to the terms of this Section 7.6(a), it is determined that the amount equal to (based i) the absolute value of the Company’s total current assets (as defined by and as determined in accordance with GAAP but excluding cash and cash equivalents) at the Closing Date as reflected on draft Tax Returns the Adjusted Balance Sheet minus (ii) the absolute value of Lion the Company’s total current liabilities (as defined by and Paline Pipeline Company (as determined in accordance with GAAP but excluding deferred revenue and any affiliated, consolidated, combined or unitary group of which either of Lion and Paline Pipeline Company is a member) prepared by PricewaterhouseCoopers LLP, KPMG LLP or another mutually acceptable independent accounting firm) that sets forth the amount of any Taxes that are included in indebtedness for borrowed money) at the Paline TaxesClosing Date as reflected on the Adjusted Balance Sheet (collectively, together with reasonable details supporting the calculation of the Paline Taxes (the “Paline Tax StatementNet Assets at Closing”). Seller shall have 45 days from ) plus (iii) the date of receipt of Balance Sheet Adjustment Amount is a number less than the Paline Tax Statement to pay to Buyer Balance Sheet Target, then an amount equal to any undisputed portion such difference (“Excess Liabilities”) shall be paid to Parent out of the Paline Taxes set forth Escrow Fund in accordance with the terms of Section 7.4(e) hereof. For purposes of this calculation, Third Party Expenses shall not be considered as part of the total current liabilities. Following delivery by Parent to the Stockholder Representative of the Adjusted Balance Sheet, Parent shall give the Stockholder Representative reasonable access during Parent’s regular California business hours to those books and records of the Surviving Corporation in the Paline Tax Statement by wire transfer possession or control of immediately available funds Parent and any personnel which relate to an account or accounts designated the preparation of the Adjusted Balance Sheet for purposes of resolving any disputes concerning the Adjusted Balance Sheet and the calculation of Net Assets at Closing.
(b) The Stockholder Representative shall have 30 days following delivery of the Adjusted Balance Sheet during which to notify Parent in writing (the “Notice of Objection”) of any good faith objections to the calculation of Net Assets at Closing or the Adjusted Balance Sheet, as it affects such calculation, setting forth a reasonably specific and detailed description of its objections and the dollar amount of each objection. If the Stockholder Representative objects to the Adjusted Balance Sheet or Parent’s calculation of Net Assets at Closing as reflected thereon, Parent and the Stockholder Representative shall attempt to resolve any such objections within 30 days of the receipt by BuyerParent of the Notice of Objection.
(c) If Parent and the Stockholder Representative are unable to resolve any such dispute within the 30 day period following receipt of the Notice of Objection referred to in Section 7.6(b) hereof, Parent and the Stockholder Representative shall submit the dispute to a partner in the audit practice of any nationally recognized accounting firm that is mutually agreeable to both parties (the “Independent Accounting Firm”). Each of the parties to this Agreement shall, and shall cause their respective affiliates and representatives to, provide full cooperation to the Independent Accounting Firm. The Independent Accounting Firm shall (i) act in its capacity as an expert and not as an arbitrator, (ii) consider only those matters as to which there is a dispute between the parties and (iii) be instructed to reach its conclusions regarding any such dispute within 30 days after its appointment and provide a written explanation of its decision. In the event that Seller Parent and the Stockholder Representative submit any dispute to an Independent Accounting Firm, each such party may submit a “position paper” to the Independent Accounting Firm setting forth the position of such party with respect to such dispute, to be considered by such Independent Accounting Firm as it deems appropriate. Fifty percent of any expenses relating to the engagement of the Independent Accounting Firm (“Independent Accounting Firm Expenses”) shall be paid by Parent and 50% of such expenses shall be paid by the Indemnifying Parties; provided, however, that in the event any Indemnifying Party fails to timely pay his or her Pro Rata Portion of the Independent Accounting Firm Expenses, the parties agree that Parent may at its option pay such Indemnifying Party’s Pro Rata Portion of the Independent Accounting Firm Expenses and recover an equal amount from such Indemnifying Party’s Pro Rata Portion of the Escrow Fund.
(d) If the Stockholder Representative does not agree deliver a Notice of Objection in accordance with Section 7.6(b) hereof (i.e., within a 30 day period), the Adjusted Balance Sheet (together with Parent’s calculation of the Paline Taxes as set forth in the Paline Tax StatementNet Assets at Closing reflected thereon), Seller shall so notify Buyer in writing within 10 Business Days after the date of receipt be deemed to have been accepted by all of the Paline Tax Statement, setting forth in writing and in reasonable detail the nature of Seller’s objections parties to the calculation of Paline Taxes as set forth in the Paline Tax Statement. Seller and Buyer shall negotiate in good faith the disputed portion of the Paline Taxes calculationthis Agreement. In the event that the Parties are unable to reach an agreement within 10 days after Buyer receives written notice Stockholder Representative delivers a Notice of any disputed amount (or such later date as may be agreed by Buyer and Seller), then the Parties will resolve such dispute Objection in accordance with the procedures provisions above and Parent and the Stockholder Representative are able to resolve such dispute by mutual agreement, the Adjusted Balance Sheet, together with Parent’s calculation of Net Assets at Closing reflected thereon, to the extent modified by mutual agreement of such parties, shall be deemed to have been accepted by all of the parties to this Agreement. In the event that the Stockholder Representative delivers a Notice of Objection in accordance with the provisions set forth in Exhibit N. Any amount above and Parent and the Stockholder Representative are unable to be paid resolve such dispute by Seller to Buyer pursuant the dispute resolution process conducted pursuant to Exhibit N shall be paid within 10 Business Days of such determination by wire transfer of immediately available funds to an account or accounts designated in writing by Buyer.
(b) Ifmutual agreement, after payment of the Paline Taxes pursuant to Section 2.4(a), there is a subsequent adjustment in the amount of the Paline Taxes as a result of any Proceeding related to Taxes, and (i) if any portion of the Paline Taxes previously paid by Seller pursuant to Section 2.4(a) is finally determined as a result of such adjustment to not have been owing, then Buyer shall pay to Seller such portion that is determined not to be owing or (ii) if the Paline Taxes are finally determined as a result of such adjustment to be in excess of the Paline Taxes originally paid, then Seller shall pay to Buyer such excess amount. Any amount to be paid by Seller or Buyer pursuant to the immediately preceding sentence shall be paid within 10 Business Days of the determination of the adjustment by wire transfer Independent Accounting Firm shall be final and binding on the parties, and the Adjusted Balance Sheet, together with Parent’s calculation of immediately available funds to an account or accounts designated in writing by the recipient of such payment.
(c) IfNet Assets at Closing reflected thereon, after payment of the Paline Taxes pursuant to Section 2.4(a), (i) the Tax basis of the assets of Paline Pipeline Company following the Paline Pipeline Equity Transfer is reduced as a result of a Proceeding, (ii) the amount of the Paline Taxes would have been reduced had the Paline Taxes been determined based on an amount of consideration payable in the Paline Pipeline Equity Transfer that is consistent with the amount of such reduced Tax basis and (iii) Buyer, the Companies or their Affiliates are entitled to (or upon filing of an amended Tax Return or other appropriate form would have been entitled to) receive a refund (whether by payment, credit, offset or otherwise) related to the Paline Taxes described in clause (ii) of this sentence (a “Paline Refund”), then Buyer shall pay to Seller the amount of the Paline Refund but only to the extent such amount exceeds any additional Taxes that are incurred (or upon filing of an amended Tax Return or other appropriate form would modified by the Independent Accounting Firm, shall be deemed to have been incurred) accepted by Buyerall of the parties to this Agreement. Subject to the foregoing provisions, the Companies or their Affiliates as a result calculation of reducing the amount of consideration payable in the Paline Pipeline Equity Transfer in a manner that is consistent with the amount of such reduced Tax basis (including any Taxes resulting from cancellation of indebtedness income resulting from such reduction of consideration). The Parties shall cooperate, and shall cause their Affiliates to cooperate, in order to take any necessary steps to claim Net Assets at Closing reflected on any such refund. The determination Adjusted Balance Sheet shall be conclusive and binding on all of the amount of and the timing of any payment under the first sentence parties to this Agreement for purposes of this Section 2.4(c) 7.6, no further adjustments shall be based on made thereto and none of Parent, the principles Stockholder Representative or the Indemnifying Parties shall have any further right to challenge such calculation of Net Assets at Closing, whether pursuant to the terms of Section 2.4(a) and without regard to Buyer’s consolidated Tax group’s loss 7.4 hereof or credit carrybacks. Additionally, in the event a Paline Refund has actually been obtained and is subsequently challenged and adjusted as a result of any Proceeding related to Taxes then the principles of Section 2.4(b) and Section 7.6 shall apply to such adjusted Paline Refundotherwise.
Appears in 1 contract
Adjustment to Consideration. (a) After Within 60 days following the Closing Date, Parent shall determine whether there are any Excess Liabilities or Excess Assets as of the Closing and give the Shareholder Representative notice of such determination. For purposes of making such calculation, Parent may use either the Closing Balance Sheet or the Adjusted Balance Sheet. For purposes of this Agreement, the amount by which (i) the Company's total assets (as defined by and determined in accordance with GAAP and consistent with past practices) as of the Closing Date minus (ii) the Company's total liabilities (as defined by and determined in accordance with GAAP and consistent with past practices) as of the Closing Date is less than or exceeds $7,000,000.00 shall be the "Excess Liabilities" or "Excess Assets," as the case may be; provided, however, that to the extent not paid prior to or at the Closing, Buyer all Third Party Expenses and Contingent Closing Payments shall be considered as liabilities of the Company as of the Closing for purposes of the above calculation. As noted above, instead of using the Closing Balance Sheet for purposes of making the Excess Liabilities/Excess Assets calculation, Parent may, at its election, cause to be prepared an Adjusted Balance Sheet. If Parent elects to prepare the Adjusted Balance Sheet, such document shall be prepared in accordance with GAAP on a basis consistent with the most recent regularly prepared financial statements of the Company. If there are any Excess Liabilities, then the amount equal to such Excess Liabilities shall be paid to Parent out of the Escrow Fund in accordance with the terms of Section 8.3 hereof. If there are Excess Assets, within 10 days after the date Parent has made the calculations set forth in this Section 8.6 and any disputes regarding such calculations have been finally resolved as provided below, Parent shall pay to each Shareholder who has surrendered such Shareholder's Certificates as provided in Section 7.1(a) above such Shareholder's Pro Rata Portion of the amount of Excess Assets. If Parent calculates whether there are any Excess Liabilities or Excess Assets using the Adjusted Balance Sheet, then Parent shall deliver to Seller a statement (based on draft Tax Returns the Shareholder Representative such Adjusted Balance Sheet within 60 days following the Closing Date. Following delivery by Parent to the Shareholder Representative of Lion the Adjusted Balance Sheet, Parent shall give the Shareholder Representative reasonable access during Parent's regular Illinois business hours to those books and Paline Pipeline records of the Company (in the possession of Parent and any affiliated, consolidated, combined or unitary group personnel which relate to the preparation of which either the Adjusted Balance Sheet for purposes of Lion resolving any disputes concerning the Adjusted Balance Sheet and Paline Pipeline Company is a member) prepared by PricewaterhouseCoopers LLP, KPMG LLP or another mutually acceptable independent accounting firm) that sets forth the amount of any Taxes that are included in the Paline Taxes, together with reasonable details supporting the calculation of any Excess Liabilities or Excess Assets. If Parent uses the Paline Taxes Closing Balance Sheet for purposes of making such calculation, subsections 8.6(b) -- (d) shall not be applicable.
(b) If Parent has elected to use the Adjusted Balance Sheet to calculate whether there are any Excess Liabilities of Excess Assets, the Shareholder Representative shall have 30 days following delivery of the Adjusted Balance Sheet during which to notify Parent in writing (the “Paline Tax Statement”)"Notice of Objection") of any good faith objections to the calculation of Excess Liabilities or Excess Assets, setting forth a reasonably specific and detailed description of its objections and, if known, the dollar amount of each objection. Seller If the Shareholder Representative objects to the calculation of Excess Liabilities or Excess Assets, Parent and the Shareholder Representative shall have 45 attempt to resolve any such objections within 30 days from of the date receipt by Parent of the Notice of Objection.
(c) If Parent and the Shareholder Representative are unable to resolve any such dispute within the 10 day period following receipt of the Paline Tax Statement Notice of Objection referred to pay in Section 8.6(b) hereof, Parent and the Shareholder Representative shall submit the dispute to Buyer an amount equal a partner in the audit practice of any nationally recognized accounting firm that is mutually agreeable to any undisputed portion both parties (the "Independent Accounting Firm"). Each of the Paline Taxes set forth parties to this Agreement shall, and shall cause their respective affiliates and representatives to, provide full cooperation to the Independent Accounting Firm. The Independent Accounting Firm shall (x) act in its capacity as an expert and not as an arbitrator, (y) consider only those matters as to which there is a dispute between the Paline Tax Statement by wire transfer parties and (z) be instructed to reach its conclusions regarding any such dispute within 30 days after its appointment and provide a written explanation of immediately available funds to an account or accounts designated in writing by Buyerits decision. In the event that Seller Parent and the Shareholder Representative submit any dispute to an Independent Accounting Firm, each such party may submit a "position paper" to the Independent Accounting Firm setting forth the position of such party with respect to such dispute, to be considered by such Independent Accounting Firm as it deems appropriate. All expenses relating to the engagement of the Independent Accounting Firm ("Independent Accounting Firm Expenses") shall be paid fifty percent (50%) by Parent and fifty percent (50%) of such expenses shall be paid by the Shareholders; provided, however, that in the event any Shareholder fails to timely pay his or her Pro Rata Portion of the Independent Accounting Firm Expenses, the parties agree that Parent may at its option pay such Shareholder's Pro Rata Portion of the Independent Accounting Firm Expenses and recover an equal amount (which shall be deemed a Loss) from such Shareholder's Pro Rata Portion of the Escrow Fund.
(d) If the Shareholder Representative does not agree deliver a Notice of Objection in accordance with Section 8.6(b) hereof (i.e., within a 10 day period), the Adjusted Balance Sheet (together with Parent's calculation of the Paline Taxes as set forth in the Paline Tax StatementExcess Liabilities or Excess Assets reflected thereon), Seller shall so notify Buyer in writing within 10 Business Days after the date of receipt be deemed to have been accepted by all of the Paline Tax Statement, setting forth in writing and in reasonable detail the nature of Seller’s objections parties to the calculation of Paline Taxes as set forth in the Paline Tax Statement. Seller and Buyer shall negotiate in good faith the disputed portion of the Paline Taxes calculationthis Agreement. In the event that the Parties are unable to reach an agreement within 10 days after Buyer receives written notice Shareholder Representative delivers a Notice of any disputed amount (or such later date as may be agreed by Buyer and Seller), then the Parties will resolve such dispute Objection in accordance with the procedures provisions above and Parent and the Shareholder Representative are able to resolve such dispute by mutual agreement, the Adjusted Balance Sheet, together with Parent's calculation of Excess Liabilities or Excess Assets reflected thereon, to the extent modified by mutual agreement of such parties, shall be deemed to have been accepted by all of the parties to this Agreement. In the event that the Shareholder Representative delivers a Notice of Objection in accordance with the provisions set forth in Exhibit N. Any amount above and Parent and the Shareholder Representative are unable to be paid resolve such dispute by Seller to Buyer pursuant the dispute resolution process conducted pursuant to Exhibit N shall be paid within 10 Business Days of such determination by wire transfer of immediately available funds to an account or accounts designated in writing by Buyer.
(b) Ifmutual agreement, after payment of the Paline Taxes pursuant to Section 2.4(a), there is a subsequent adjustment in the amount of the Paline Taxes as a result of any Proceeding related to Taxes, and (i) if any portion of the Paline Taxes previously paid by Seller pursuant to Section 2.4(a) is finally determined as a result of such adjustment to not have been owing, then Buyer shall pay to Seller such portion that is determined not to be owing or (ii) if the Paline Taxes are finally determined as a result of such adjustment to be in excess of the Paline Taxes originally paid, then Seller shall pay to Buyer such excess amount. Any amount to be paid by Seller or Buyer pursuant to the immediately preceding sentence shall be paid within 10 Business Days of the determination of the adjustment by wire transfer Independent Accounting Firm shall be final and binding on the parties, and the Adjusted Balance Sheet, together with Parent's calculation of immediately available funds to an account Excess Liabilities or accounts designated in writing by the recipient of such payment.
(c) IfExcess Assets reflected thereon, after payment of the Paline Taxes pursuant to Section 2.4(a), (i) the Tax basis of the assets of Paline Pipeline Company following the Paline Pipeline Equity Transfer is reduced as a result of a Proceeding, (ii) the amount of the Paline Taxes would have been reduced had the Paline Taxes been determined based on an amount of consideration payable in the Paline Pipeline Equity Transfer that is consistent with the amount of such reduced Tax basis and (iii) Buyer, the Companies or their Affiliates are entitled to (or upon filing of an amended Tax Return or other appropriate form would have been entitled to) receive a refund (whether by payment, credit, offset or otherwise) related to the Paline Taxes described in clause (ii) of this sentence (a “Paline Refund”), then Buyer shall pay to Seller the amount of the Paline Refund but only to the extent such amount exceeds any additional Taxes that are incurred (or upon filing of an amended Tax Return or other appropriate form would modified by the Independent Accounting Firm, shall be deemed to have been incurred) accepted by Buyerall of the parties to this Agreement. Subject to the foregoing provisions, the Companies calculation of Excess Liabilities or their Affiliates as a result of reducing the amount of consideration payable in the Paline Pipeline Equity Transfer in a manner that is consistent with the amount of such reduced Tax basis (including any Taxes resulting from cancellation of indebtedness income resulting from such reduction of consideration). The Parties shall cooperate, and shall cause their Affiliates to cooperate, in order to take any necessary steps to claim Excess Assets reflected on any such refund. The determination Adjusted Balance Sheet shall be conclusive and binding on all of the amount of and the timing of any payment under the first sentence parties to this Agreement for purposes of this Section 2.4(c) 8.6, no further adjustments shall be based on made thereto and none of Parent, the principles Shareholder Representative or the Shareholders shall have any further right to challenge such calculation of Excess Liabilities or Excess Assets, whether pursuant to the terms of Section 2.4(a) and without regard to Buyer’s consolidated Tax group’s loss 8.3 hereof or credit carrybacks. Additionally, in the event a Paline Refund has actually been obtained and is subsequently challenged and adjusted as a result of any Proceeding related to Taxes then the principles of Section 2.4(b) and Section 7.6 shall apply to such adjusted Paline Refundotherwise.
Appears in 1 contract
Adjustment to Consideration. (a) After 7.3.1 The consideration payable for the Closing, Buyer Shares shall deliver to Seller a statement (based on draft Tax Returns of Lion and Paline Pipeline Company (and any affiliated, consolidated, combined or unitary group of which either of Lion and Paline Pipeline Company is a member) prepared be increased by PricewaterhouseCoopers LLP, KPMG LLP or another mutually acceptable independent accounting firm) that sets forth the amount by which the Closing Working Capital Amount exceeds the Base Working Capital Amount, and the consideration payable for the Shares shall be decreased by the amount by which the Closing Working Capital Amount is less than the Base Working Capital Amount. Accordingly, within five Business Days after the Working Capital Statement becomes binding pursuant to paragraph 2 of any Taxes that are included in Part 1 of Schedule 4:
(i) if the Paline TaxesFinal Working Capital Adjustment Amount is greater than the Estimated Working Capital Adjustment Amount, together with reasonable details supporting then the calculation of the Paline Taxes (the “Paline Tax Statement”). Seller Purchaser shall have 45 days from the date of receipt of the Paline Tax Statement to pay to Buyer an amount equal to any undisputed portion of the Paline Taxes set forth in the Paline Tax Statement Seller by wire transfer of immediately available funds to the Seller's Nominated Account an account or accounts designated in writing amount equal to the difference between the Estimated Working Capital Adjustment Amount and the Final Working Capital Adjustment Amount, together with an amount thereon calculated by Buyer. In reference to the event that Seller does PPA Interest Rate from and including the Closing Date to but not agree with the calculation of the Paline Taxes as set forth in the Paline Tax Statement, Seller shall so notify Buyer in writing within 10 Business Days after including the date of receipt of such payment; and
(ii) if the Paline Tax Statement, setting forth in writing and in reasonable detail Estimated Working Capital Adjustment Amount is greater than the nature of Seller’s objections to the calculation of Paline Taxes as set forth in the Paline Tax Statement. Seller and Buyer shall negotiate in good faith the disputed portion of the Paline Taxes calculation. In the event the Parties are unable to reach an agreement within 10 days after Buyer receives written notice of any disputed amount (or such later date as may be agreed by Buyer and Seller)Closing Working Capital Amount, then the Parties will resolve such dispute in accordance with Seller shall pay to the procedures set forth in Exhibit N. Any amount to be paid by Seller to Buyer pursuant the dispute resolution process conducted pursuant to Exhibit N shall be paid within 10 Business Days of such determination Purchaser by wire transfer of immediately available funds to the Purchaser's Nominated Account an account or accounts designated in writing amount equal to the difference between the Estimated Working Capital Adjustment Amount and the Final Working Capital Adjustment Amount, together with an amount thereon calculated by Buyerreference to the PPA Interest Rate from and including the Closing Date to but not including the date of such payment.
(b) If, after payment of the Paline Taxes 7.3.2 The consideration paid pursuant to Section 2.4(a), there is a subsequent adjustment in Clause 6.4 shall be increased by the amount of by which the Paline Taxes as a result of any Proceeding related to TaxesFinal Closing Cash Amount exceeds the Estimated Closing Cash Amount, and the consideration paid pursuant to Clause 6.4 shall be decreased by the amount by which the Final Closing Cash Amount is less than the Estimated Closing Cash Amount. Accordingly, within five Business Days after the Cash Amount Statement becomes binding pursuant to paragraph 2 of Part 1 of Schedule 4:
(i) if any portion of the Paline Taxes previously paid by Seller pursuant to Section 2.4(a) Final Closing Cash Amount is finally determined as a result of such adjustment to not have been owinggreater than the Estimated Closing Cash Amount, then Buyer the Purchaser shall pay to the Seller such portion that is determined not to be owing or (ii) if the Paline Taxes are finally determined as a result of such adjustment to be in excess of the Paline Taxes originally paid, then Seller shall pay to Buyer such excess amount. Any amount to be paid by Seller or Buyer pursuant to the immediately preceding sentence shall be paid within 10 Business Days of the determination of the adjustment by wire transfer of immediately available funds to the Seller's Nominated Account an account or accounts designated in writing amount equal to the Final Closing Cash Adjustment Amount, together with an amount thereon calculated by reference to the PPA Interest Rate from and including the Closing Date to but not including the date of such payment; and
(ii) if the Final Closing Cash Amount is less than the Estimated Closing Cash Amount, then the Seller shall pay to the Purchaser by wire transfer of immediately available funds to the Purchaser's Nominated Account an amount, equal to the Final Closing Cash Adjustment Amount, together with an amount thereon calculated by reference to the PPA Interest Rate from and including the Closing Date to but not including the date of such payment
7.3.3 The consideration paid pursuant to Clause 6.4 shall be increased by the recipient amount by which the Estimated Cash Deferred Income Amount exceeds the Final Cash Deferred Income Amount, and the consideration paid pursuant to Clause 6.4 shall be decreased by the amount by which the Estimated Cash Deferred Income Amount is less than the Final Cash Deferred Income Amount. Accordingly, within five Business Days after the Cash Deferred Income Amount Statement becomes binding pursuant to paragraph 2 of Part 1 of Schedule 4:
(i) if the Estimated Cash Deferred Income Amount is greater than the Final Cash Deferred Income Amount, then the Purchaser shall pay to the Seller by wire transfer of immediately available funds to the Seller's Nominated Account an amount equal to the Final Cash Deferred Income Adjustment Amount, together with an amount thereon calculated by reference to the PPA Interest Rate from and including the Closing Date to but not including the date of such payment; and
(ii) if the Final Cash Deferred Income Amount is greater than the Estimated Cash Deferred Income Amount, then the Seller shall pay to the Purchaser by wire transfer of immediately available funds to the Purchaser's Nominated Account an amount equal to the Final Cash Deferred Income Adjustment Amount, together with an amount thereon calculated by reference to the PPA Interest Rate from and including the Closing Date to but not including the date of such payment.
7.3.4 If the Final Cash Deferred Income Amount is less than either (ci)(pound)27,900,000 (twenty seven million, nine hundred thousand pounds Sterling) If(if Closing occurs on or prior to 31 August 2004, representing the forecast Cash Deferred Income at such date); or (ii)(pound)23,900,000 (twenty three million, nine hundred thousand pounds Sterling) (if Closing occurs on or prior to 30 September 2004 but after payment 31 August 2004, representing the forecast Cash Deferred Income at such date) then the Final Working Capital Adjustment Amount shall be increased by the difference between the Final Cash Deferred Income Amount (at such date) and either (i)(pound)27,900,000 (twenty seven million, nine hundred thousand pounds Sterling) (if Closing occurs on or prior to 31 August 2004); or (ii)(pound)23,900,000 (twenty three million, nine hundred thousand pounds Sterling) (if Closing occurs on or prior to 30 September 2004 but after 31 August 2004). For the avoidance of doubt, if the Paline Taxes pursuant to Section 2.4(a), Final Cash Deferred Income Amount is either greater than (i) the Tax basis of the assets of Paline Pipeline Company following the Paline Pipeline Equity Transfer is reduced as a result of a Proceeding(pound)27,900,000 (twenty seven million, nine hundred thousand pounds Sterling) (if Closing occurs on or prior to 31 August 2004); or (ii) (pound)23,900,000 (twenty three million, nine hundred thousand pounds Sterling) (if Closing occurs on or prior to 30 September 2004 but after 31 August 2004) then there shall be no corresponding adjustment to the amount Final Working Capital Adjustment Amount.
7.3.5 The Purchaser agrees that following the Closing and until the Completion Statements become binding pursuant to paragraph 2 of Part 1 of Schedule 4, it shall not take any actions with respect to the Paline Taxes would have been reduced had Books and Records with the Paline Taxes been determined based on an amount of consideration payable in result that the Paline Pipeline Equity Transfer that is Completion Statements cannot be calculated consistent with the amount of such reduced Tax basis and (iii) Buyer, Accounting Policies.
7.3.6 The parties may agree to net the Companies or their Affiliates are entitled to (or upon filing of an amended Tax Return or other appropriate form would have been entitled to) receive a refund (whether by payment, credit, offset or otherwise) related amounts payable pursuant to the Paline Taxes described in clause (ii) foregoing provisions of this sentence (a “Paline Refund”)Clause 7.3 against each other, then Buyer shall pay to Seller the amount such that settlement of the Paline Refund but only to the extent adjustment amounts described herein may be effected by one wire transfer in respect of all such amount exceeds any additional Taxes that are incurred (or upon filing of an amended Tax Return or other appropriate form would have been incurred) by Buyer, the Companies or their Affiliates as a result of reducing the amount of consideration payable in the Paline Pipeline Equity Transfer in a manner that is consistent with the amount of such reduced Tax basis (including any Taxes resulting from cancellation of indebtedness income resulting from such reduction of consideration). The Parties shall cooperate, and shall cause their Affiliates to cooperate, in order to take any necessary steps to claim any such refund. The determination of the amount of and the timing of any payment under the first sentence of this Section 2.4(c) shall be based on the principles of Section 2.4(a) and without regard to Buyer’s consolidated Tax group’s loss or credit carrybacks. Additionally, in the event a Paline Refund has actually been obtained and is subsequently challenged and adjusted as a result of any Proceeding related to Taxes then the principles of Section 2.4(b) and Section 7.6 shall apply to such adjusted Paline Refundamounts.
Appears in 1 contract
Sources: Share Purchase Agreement (Crown Castle International Corp)
Adjustment to Consideration. (a) After Within forty-five (45) days following the Closing Date, Parent may, at its election, cause to be prepared and delivered to the Stockholder Representative an unaudited balance sheet of the Surviving Corporation as of the Closing Date (the "Adjusted Balance Sheet"). The ---------------------- Adjusted Balance Sheet will be prepared in accordance with GAAP (except that such balance sheet will not contain footnotes or year-end adjustments that may be required by GAAP). Based upon the Adjusted Balance Sheet, the Company's "Net --- Liabilities at Closing, Buyer " shall deliver to Seller a statement be calculated in accordance with the following: ---------------------- (based A) the Company's total liabilities at the Closing Date as set forth on draft Tax Returns of Lion and Paline Pipeline Company the Adjusted Balance Sheet minus (and any affiliated, consolidated, combined or unitary group of which either of Lion and Paline Pipeline Company is a memberB) prepared by PricewaterhouseCoopers LLP, KPMG LLP or another mutually acceptable independent accounting firmthe Company's total assets at the Closing Date as set forth on the Adjusted Balance Sheet minus (C) that sets forth the amount of any Taxes the Company's payments for Severance (or accruals therefore) minus (D) the Additional Liabilities (whether such amount has been paid by the Company prior to the Closing Date or otherwise reserved for by the Company) minus (E) the total amount of normal per diem operating expenses for the period between November 30, 2001 and Closing at a rate of $9,150 per calendar day minus (F) the Third Party Expense Adjustment Amount minus (G) up to $50,000 pursuant to Section 5.5. In ----------- the event that, pursuant to the terms of this Section 7.6, it is determined that are included in ----------- (X) the Paline TaxesCompany's Net Liabilities at Closing exceeds (Y) the Current Balance Sheet Net Liabilities, together with reasonable details supporting the calculation of the Paline Taxes (the “Paline Tax Statement”). Seller shall have 45 days from the date of receipt of the Paline Tax Statement to pay to Buyer then an amount equal to any undisputed portion such difference ("Excess ------ Liabilities") shall be paid to Parent out of the Paline Taxes Escrow Fund upon the delivery ----------- to the Escrow Agent of an Officer's Certificate in accordance with the terms of Section 7.3(f) hereof. If the Excess Liabilities exceed the amount in the Escrow -------------- Fund, Parent shall be entitled to recover directly from the Principal Stockholders any amount of Excess Liabilities not covered by the Escrow Fund, subject to the limitations set forth in Section 7.5. Following delivery by ----------- Parent to the Paline Tax Statement by wire transfer Stockholder Representative of immediately available funds the Adjusted Balance Sheet, Parent shall give the Stockholder Representative reasonable access during Parent's business hours to an account or accounts designated those books and records of the Surviving Corporation in the possession of Parent and any personnel which relate to the preparation of the Adjusted Balance Sheet for purposes of resolving any disputes concerning the Adjusted Balance Sheet and the calculation of Net Liabilities at Closing.
(b) The Stockholder Representative shall have fifteen (15) days following delivery of the Adjusted Balance Sheet during which to notify Parent in writing (the "Notice of Objection") of any good faith objections to the ------------------- calculation of Net Liabilities at Closing or the Adjusted Balance Sheet, as it affects such calculation, setting forth a reasonably specific and detailed description of its objections and the dollar amount of each objection. If the Stockholder Representative objects to the Adjusted Balance Sheet or Parent's calculation of Net Liabilities at Closing as reflected thereon, Parent and the Stockholder Representative shall attempt to resolve any such objections within fifteen (15) days of the receipt by BuyerParent of the Notice of Objection.
(c) If Parent and the Stockholder Representative are unable to resolve any such dispute within the fifteen (15) day period referred to in Section 7.6(b) hereof, Parent and the Stockholder Representative shall submit -------------- the dispute to Deloitte & Touche (the "Independent Accounting Firm"). Each of --------------------------- the parties to this Agreement shall, and shall cause their respective affiliates and representatives to, provide full cooperation to the Independent Accounting Firm. The Independent Accounting Firm shall (x) act in its capacity as an expert and not as an arbitrator, (y) consider only those matters as to which there is a dispute between the parties and (z) be instructed to reach its conclusions regarding any such dispute within thirty (30) days after its appointment and provide a written explanation of its decision. In the event that Seller Parent and the Stockholder Representative submit any dispute to an Independent Accounting Firm, each such party may submit a "position paper" to the Independent Accounting Firm setting forth the position of such party with respect to such dispute, to be considered by such Independent Accounting Firm as it deems fit. The expenses relating to the engagement of the Independent Accounting Firm shall be paid by the party whose position is not the position that substantially prevails.
(d) If the Stockholder Representative does not agree deliver a Notice of Objection in accordance with Section 7.6(b) hereof (i.e., within a fifteen (15) ------------- day period), the Adjusted Balance Sheet (together with Parent's calculation of the Paline Taxes as set forth in the Paline Tax StatementNet Liabilities at Closing reflected thereon), Seller shall so notify Buyer in writing within 10 Business Days after the date of receipt be deemed to have been accepted by all of the Paline Tax Statement, setting forth in writing and in reasonable detail the nature of Seller’s objections parties to the calculation of Paline Taxes as set forth in the Paline Tax Statement. Seller and Buyer shall negotiate in good faith the disputed portion of the Paline Taxes calculationthis Agreement. In the event that the Parties are unable to reach an agreement within 10 days after Buyer receives written notice Stockholder Representative delivers a Notice of any disputed amount (or such later date as may be agreed by Buyer and Seller), then the Parties will resolve such dispute Objection in accordance with the procedures provisions above and Parent and the Stockholder Representative are able to resolve such dispute by mutual agreement, the Adjusted Balance Sheet, together with Parent's calculation of Net Liabilities at Closing reflected thereon, to the extent modified by mutual agreement of such parties, shall be deemed to have been accepted by all of the parties to this Agreement. In the event that the Stockholder Representative delivers a Notice of Objection in accordance with the provisions set forth in Exhibit N. Any amount above and Parent and the Stockholder Representative are unable to be paid resolve such dispute by Seller to Buyer pursuant the dispute resolution process conducted pursuant to Exhibit N shall be paid within 10 Business Days of such determination by wire transfer of immediately available funds to an account or accounts designated in writing by Buyer.
(b) Ifmutual agreement, after payment of the Paline Taxes pursuant to Section 2.4(a), there is a subsequent adjustment in the amount of the Paline Taxes as a result of any Proceeding related to Taxes, and (i) if any portion of the Paline Taxes previously paid by Seller pursuant to Section 2.4(a) is finally determined as a result of such adjustment to not have been owing, then Buyer shall pay to Seller such portion that is determined not to be owing or (ii) if the Paline Taxes are finally determined as a result of such adjustment to be in excess of the Paline Taxes originally paid, then Seller shall pay to Buyer such excess amount. Any amount to be paid by Seller or Buyer pursuant to the immediately preceding sentence shall be paid within 10 Business Days of the determination of the adjustment by wire transfer Independent Accounting Firm shall be final and binding on the parties, and the Adjusted Balance Sheet, together with Parent's calculation of immediately available funds to an account or accounts designated in writing by the recipient of such payment.
(c) IfNet Liabilities at Closing reflected thereon, after payment of the Paline Taxes pursuant to Section 2.4(a), (i) the Tax basis of the assets of Paline Pipeline Company following the Paline Pipeline Equity Transfer is reduced as a result of a Proceeding, (ii) the amount of the Paline Taxes would have been reduced had the Paline Taxes been determined based on an amount of consideration payable in the Paline Pipeline Equity Transfer that is consistent with the amount of such reduced Tax basis and (iii) Buyer, the Companies or their Affiliates are entitled to (or upon filing of an amended Tax Return or other appropriate form would have been entitled to) receive a refund (whether by payment, credit, offset or otherwise) related to the Paline Taxes described in clause (ii) of this sentence (a “Paline Refund”), then Buyer shall pay to Seller the amount of the Paline Refund but only to the extent such amount exceeds any additional Taxes that are incurred (or upon filing of an amended Tax Return or other appropriate form would modified by the Independent Accounting Firm, shall be deemed to have been incurred) accepted by Buyerall of the parties to this Agreement. Subject to the foregoing provisions, the Companies or their Affiliates as a result calculation of reducing the amount of consideration payable in the Paline Pipeline Equity Transfer in a manner that is consistent with the amount of such reduced Tax basis (including any Taxes resulting from cancellation of indebtedness income resulting from such reduction of consideration). The Parties shall cooperate, and shall cause their Affiliates to cooperate, in order to take any necessary steps to claim Net Liabilities at Closing reflected on any such refund. The determination Adjusted Balance Sheet shall be conclusive and binding on all of the amount of and the timing of any payment under the first sentence of parties to this Section 2.4(c) Agreement, no further adjustments shall be based on made thereto and neither Parent, the principles Stockholder Representative nor the Principal Stockholders shall have any further right to challenge such calculation of Net Liabilities at Closing, whether pursuant to the terms of Section 2.4(a) and without regard to Buyer’s consolidated Tax group’s loss 7.3 hereof or credit carrybacksotherwise. Additionally, in the event a Paline Refund has actually been obtained and is subsequently challenged and adjusted as a result of any Proceeding related to Taxes then the principles of Section 2.4(b) and Section 7.6 shall apply to such adjusted Paline Refund.-----------
Appears in 1 contract
Sources: Agreement and Plan of Reorganization (Echelon Corp)
Adjustment to Consideration. (a) After It is acknowledged and agreed that at the Closing, Buyer Completion Date the Company shall deliver not have any Debt and that the Working Capital of the Company shall be Euro 0 at Completion. Any actions of ▇▇▇▇▇▇▇▇ to Seller a statement (based on draft Tax Returns of Lion and Paline Pipeline achieve the Company (and any affiliated, consolidated, combined or unitary group of which either of Lion and Paline Pipeline Company is a member) prepared by PricewaterhouseCoopers LLP, KPMG LLP or another mutually acceptable independent accounting firm) that sets forth the amount being free of any Taxes Debt or to achieve a Working Capital of Euro 0, shall not have any adverse tax effect of whatsoever nature for the Company and for SBS. It is, furthermore, acknowledged and agreed that are included in the Paline Taxes, together with reasonable details supporting the calculation of the Paline Taxes (the “Paline Tax Statement”). Seller shall have 45 days from the date of receipt of the Paline Tax Statement to pay to Buyer an amount equal to any undisputed portion of the Paline Taxes set forth in the Paline Tax Statement by wire transfer of immediately available funds to an account or accounts designated in writing by Buyer. In the event that Seller does not agree the Completion Balance Sheet differs from the Pro Forma Completion Balance Sheet a recalculation shall take place of the Consideration, whereby each item on such balance sheets shall be taken into account and compared. The aggregate amount resulting from such comparison, which would result in an adjustment to the Consideration as set out in clause 6 in accordance with the calculation provisions of clause 10.10 shall be equal to the amount by which the net asset value as shown in the Completion Balance Sheet shall differ from the net asset value as shown in the Pro Forma Balance Sheet (the Aggregate Amount) and be settled as follows: If the parties did not refer the item or items in dispute of the Paline Taxes Pro Forma Completion Balance Sheet (the Disputed Items) to the Independent Accountants in an earlier stage as set out in clause 7.3 the parties shall discuss the Disputed Items and try to reach an understanding regarding the Disputed Items within five Business Days following one year after Signing. If no agreement has been reached the Disputed Items shall be determined by the Independent Accountants, whereupon a comparison between the Pro Forma Completion Balance Sheet and the Completion Balance Sheet on an item for item basis shall be made as set forth in this clause 7.5. Upon finalisation of such comparison the Paline Tax Statement, Seller parties shall so notify Buyer in writing within 10 Business Days after enter into discussions regarding the date way of receipt settlement of the Paline Tax StatementAggregate Amount. If parties have not reached an understanding regarding the way of settlement within thirty days following the finalisation of aforementioned comparison, setting forth the Aggregate Amount shall be settled either in writing and cash or in reasonable detail the nature of Seller’s objections to the calculation of Paline Taxes as set forth in the Paline Tax Statement. Seller and Buyer shall negotiate in good faith the disputed portion of the Paline Taxes calculation. In the event the Parties are unable to reach an agreement within 10 days after Buyer receives written notice of any disputed amount (or such later date as may be agreed by Buyer and Seller), then the Parties will resolve such dispute kind in accordance with the procedures set forth in Exhibit N. Any amount to be paid by Seller to Buyer pursuant the dispute resolution process conducted pursuant to Exhibit N provisions of clause 10.10 of this agreement, it being understood that there shall be paid within 10 Business Days of such determination by wire transfer of immediately available funds to an account or accounts designated in writing by Buyer.
(b) If, after payment disregard of the Paline Taxes pursuant to Section 2.4(a), there is a subsequent adjustment in the amount of the Paline Taxes as a result of any Proceeding related to Taxes, and (i) if any portion of the Paline Taxes previously paid by Seller pursuant to Section 2.4(a) is finally determined as a result of such adjustment to not have been owing, then Buyer shall pay to Seller such portion that is determined not to be owing or (ii) if the Paline Taxes are finally determined as a result of such adjustment to be in excess of the Paline Taxes originally paid, then Seller shall pay to Buyer such excess amount. Any amount to be paid by Seller or Buyer pursuant to the immediately preceding sentence shall be paid within 10 Business Days of the determination of the adjustment by wire transfer of immediately available funds to an account or accounts designated in writing by the recipient of such payment.
(c) If, after payment of the Paline Taxes pursuant to Section 2.4(a), (i) the Tax basis of the assets of Paline Pipeline Company following the Paline Pipeline Equity Transfer is reduced as a result of a Proceeding, (ii) the amount of the Paline Taxes would have been reduced had the Paline Taxes been determined based on an amount of consideration payable in the Paline Pipeline Equity Transfer that is consistent with the amount of such reduced Tax basis and (iii) Buyer, the Companies or their Affiliates are entitled to (or upon filing of an amended Tax Return or other appropriate form would have been entitled to) receive a refund (whether by payment, credit, offset or otherwise) related to the Paline Taxes described in clause (ii) of this sentence (a “Paline Refund”), then Buyer shall pay to Seller the amount of the Paline Refund but only to the extent such amount exceeds any additional Taxes that are incurred (or upon filing of an amended Tax Return or other appropriate form would have been incurred) by Buyer, the Companies or their Affiliates as a result of reducing the amount of consideration payable in the Paline Pipeline Equity Transfer in a manner that is consistent with the amount of such reduced Tax basis (including any Taxes resulting from cancellation of indebtedness income resulting from such reduction of consideration). The Parties shall cooperate, and shall cause their Affiliates to cooperate, in order to take any necessary steps to claim any such refund. The determination of the amount of and the timing of any payment under the first sentence of this Section 2.4(c) shall be based on the principles of Section 2.4(a) and without regard to Buyer’s consolidated Tax group’s loss or credit carrybacks. Additionally, Aggregate Amount in the event a Paline Refund has actually been obtained and such amount is subsequently challenged and adjusted less than Euro 75,000. If the Aggregate Amount is Euro 75,000 or more, this amount shall be taken into account when determining whether the threshold set out in clause 11.1(b) is met, which threshold shall also apply in relation to the settlement of the Aggregate Amount. If the parties had referred the Disputed Items to Independent Accounts as a result set out in clause 7.3, the parties shall enter into discussions regarding the way of any Proceeding related settlement of the Aggregate Amount one year following the Signing. If parties have not reached an understanding regarding the way of settlement within thirty days following one year after Signing, the Aggregate Amount shall be settled either in cash or in kind in accordance with the provisions of clause 10.10 of this agreement, it being understood that there shall be disregard of the Aggregate Amount in the event such amount is less than Euro 75,000. If the Aggregate Amount is Euro 75,000 or more, this amount shall be taken into account when determining whether the threshold set out in clause 11.1(b) is met, which threshold shall also apply in relation to Taxes then the principles settlement of Section 2.4(b) and Section 7.6 shall apply to such adjusted Paline Refundthe Aggregate Amount.
Appears in 1 contract
Sources: Agreement for Transfer of Share Capital (SBS Broadcasting S A)
Adjustment to Consideration. 4.1 Estimated Adjustment Amount
(a) After Simultaneously with the Closingdelivery of the Completion Notice by the Seller to the Purchaser pursuant to Clause 5.5, Buyer the Seller shall deliver to Seller a statement the Purchaser (based on draft Tax Returns of Lion and Paline Pipeline Company (and any affiliated, consolidated, combined or unitary group of which either of Lion and Paline Pipeline Company is a memberi) prepared by PricewaterhouseCoopers LLP, KPMG LLP or another mutually acceptable independent accounting firm) that sets forth the amount of any Taxes that are included in the Paline Taxes, together with reasonable details supporting the calculation general ledger of the Paline Taxes School Holding Companies and School Entities and all bank statements of all bank accounts maintained by the School Holding Companies and School Entities; and (ii) the “Paline Tax Statement”). Seller shall have 45 days unaudited balance sheet of each School Holding Company and School Entity and the unaudited consolidated balance sheet of the School Holding Companies and School Entities for each of the monthly periods from 1 July 2014 to the end of the calendar month immediately preceding the date of receipt of on which the Paline Tax Statement to pay to Buyer an amount equal to any undisputed portion of Completion Notice is given by the Paline Taxes set forth in the Paline Tax Statement by wire transfer of immediately available funds to an account or accounts designated in writing by Buyer. In the event that Seller does not agree with the calculation of the Paline Taxes as set forth in the Paline Tax Statement, Seller shall so notify Buyer in writing within 10 Business Days after the date of receipt of the Paline Tax Statement, setting forth in writing and in reasonable detail the nature of Seller’s objections to the calculation of Paline Taxes as set forth in the Paline Tax Statement. Seller and Buyer shall negotiate in good faith the disputed portion of the Paline Taxes calculation. In the event the Parties are unable to reach an agreement within 10 days after Buyer receives written notice of any disputed amount (or such later date as may be agreed by Buyer and Sellerboth inclusive), then the Parties will resolve such dispute in accordance with the procedures set forth in Exhibit N. Any amount to be paid by Seller to Buyer pursuant the dispute resolution process conducted pursuant to Exhibit N shall be paid within 10 Business Days of such determination by wire transfer of immediately available funds to an account or accounts designated in writing by Buyer.
(b) If, Within five (5) Business Days after payment the receipt of the Paline Taxes pursuant Completion Notice by the Purchaser, the Purchaser shall deliver to Section 2.4(a), there is the Seller a subsequent adjustment in statement (the “Purchaser’s Statement”) setting out the Purchaser’s good faith estimate of the Final Adjustment Amount (“Estimated Adjustment Amount”) which shall be determined according to Clause 4.2 and the amount of the Paline Taxes as a result of any Proceeding related to Taxes, and (i) if any portion of the Paline Taxes previously paid by Seller pursuant to Section 2.4(a) is finally determined as a result of such adjustment to not have been owing, then Buyer shall pay to Seller such portion that is determined not to be owing or (ii) if the Paline Taxes are finally determined as a result of such adjustment to be in excess of the Paline Taxes originally paid, then Seller shall pay to Buyer such excess amount. Any amount Initial Cash Consideration to be paid by the Purchaser to the Seller or Buyer at Completion pursuant to the immediately preceding sentence shall be paid within 10 Business Days of the determination of the adjustment by wire transfer of immediately available funds to an account or accounts designated in writing by the recipient of such paymentClause 3.2(a)(i).
(c) IfIf the Estimated Adjustment Amount is a positive number, after payment then the Initial Cash Consideration payable by the Purchaser to the Seller at Completion shall be increased by fifty percent (50%) of the Paline Estimated Adjustment Amount. If the Estimated Adjustment Amount is a negative number, then the Initial Cash Consideration payable by the Purchaser to the Seller at Completion shall be decreased by the Estimated Adjustment Amount. If the Estimated Adjustment Amount is zero, then there shall be no adjustment to the Initial Cash Consideration payable by the Purchaser to the Seller at Completion.
4.2 The amount of the final adjustment amount to the Initial Cash Consideration (“Final Adjustment Amount”) shall be calculated as:
(a) all cash on hand or credited to an account with a bank or other financial institution opened in the name of the Target Group Entities as of the Effective Time as shown in the Completion Accounts;
(b) all accounts receivable in relation to the 2014/2015 Financial Year to which the Target Group Entities are beneficially entitled as of the Effective Time as shown in the Completion Accounts;
(c) the Deposits as shown in the Completion Accounts;
(d) advances or prepayments on procurement contracts as shown in the Completion Accounts;
(e) operating expenses in relation to the 2014/2015 Financial Year paid in the normal course of business from 1 July 2014 up to the Effective Time as shown in the Completion Accounts;
(f) capital expenditure in relation to the 2014/2015 Financial Year incurred from 1 July 2014 up to the Effective Time, subject to approval by the Purchaser as shown in the Completion Accounts;
(g) tuition fees for the 2014/2015 Financial Year and beyond paid and received in advance and to be paid and received by the School Entities up to the Effective Time as shown in the Completion Accounts;
(h) refundable deposits from the children and students of the School Entities as of the Effective Time as shown in the Completion Accounts;
(i) accounts payable by the Target Group Entities in relation to the period up to the Effective Time as shown in the Completion Accounts;
(j) accrued expenses by the Target Group Entities in relation to the period up to the Effective Time as shown in the Completion Accounts;
(k) Taxes pursuant payable by the Target Group Entities in relation to Section 2.4(a)the period up to the Effective Time as shown in the Completion Accounts;
(l) end-of-contract bonus payable to ▇▇▇▇▇ ▇▇▇▇▇▇▇▇, the CEO of the Target Group Entities, as of the Effective Time as shown in the Completion Accounts; and
(m) provision for unemployment funds and severance allowance for the Target Group Entities as of the Effective Time as shown in the Completion Accounts.
4.3 The Initial Cash Consideration shall be adjusted by an amount equal to (i) the Tax basis of the assets of Paline Pipeline Company following the Paline Pipeline Equity Transfer is reduced as a result of a Proceeding, Final Adjustment Amount minus (ii) the amount of Estimated Adjustment Amount (the Paline Taxes would have been reduced had the Paline Taxes been determined based on an amount of consideration payable in the Paline Pipeline Equity Transfer that is consistent with the amount of such reduced Tax basis and (iii) Buyer, the Companies or their Affiliates are entitled to (or upon filing of an amended Tax Return or other appropriate form would have been entitled to) receive a refund (whether by payment, credit, offset or otherwise) related to the Paline Taxes described in clause (ii) of this sentence (a “Paline RefundSubsequent Adjustment Amount”). If the Subsequent Adjustment Amount is a positive number, then Buyer the Purchaser shall pay to Seller the amount Seller, as an increase to the Initial Cash Consideration, a sum equal to fifty percent (50%) of the Paline Refund but only Subsequent Adjustment Amount, on the Subsequent Adjustment Payment Date to the extent such amount exceeds any additional Taxes that are incurred bank account designated by the Seller in writing at least five (or upon filing of an amended Tax Return or other appropriate form would have been incurred5) by BuyerBusiness Days prior to the Subsequent Adjustment Payment Date. If the Subsequent Adjustment Amount is a negative number, then the Companies or their Affiliates Seller shall pay to the Purchaser, as a result of reducing reduction to the amount of consideration payable Initial Cash Consideration, a sum equal to the Subsequent Adjustment Amount on the Subsequent Adjustment Payment Date to the bank account designated by the Purchaser in writing at least five (5) Business Days prior to the Paline Pipeline Equity Transfer in a manner that Subsequent Adjustment Payment Date. If the Subsequent Adjustment Amount is consistent with the amount of such reduced Tax basis (including any Taxes resulting from cancellation of indebtedness income resulting from such reduction of consideration). The Parties shall cooperatezero, and shall cause their Affiliates to cooperate, in order to take any necessary steps to claim any such refund. The determination of the amount of and the timing of any payment under the first sentence of this Section 2.4(c) there shall be based on no adjustment to the principles of Section 2.4(a) and without regard to Buyer’s consolidated Tax group’s loss or credit carrybacks. Additionally, in the event a Paline Refund has actually been obtained and is subsequently challenged and adjusted as a result of any Proceeding related to Taxes then the principles of Section 2.4(b) and Section 7.6 shall apply to such adjusted Paline RefundInitial Cash Consideration.
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Sources: Share Purchase Agreement (Nord Anglia Education, Inc.)
Adjustment to Consideration. (a) After Pursuant to the ClosingMajority SPA, the Buyer shall deliver and the Majority Sellers must comply with their respective obligations under Clauses 3.5 to Seller a statement 3.9 of and Schedule 8 to the Majority SPA, pursuant to which the Completion Accounts are to be prepared and become final and binding on the Buyer and the Majority Sellers and, by operation of this clause 3, the Option Sellers.
(based on draft Tax Returns of Lion and Paline Pipeline Company (and any affiliated, consolidated, combined or unitary group of which either of Lion and Paline Pipeline Company is a memberb) prepared by PricewaterhouseCoopers LLP, KPMG LLP or another mutually acceptable independent accounting firm) that sets forth the amount of any Taxes that are included in the Paline Taxes, together with reasonable details supporting the calculation of the Paline Taxes (the “Paline Tax Statement”). Seller shall have 45 days from On the date of receipt of the Paline Tax Statement to pay to Buyer an amount equal to any undisputed portion of the Paline Taxes set forth in the Paline Tax Statement by wire transfer of immediately available funds to an account or accounts designated in writing by Buyer. In the event that Seller does not agree with the calculation of the Paline Taxes as set forth in the Paline Tax Statement, Seller shall so notify Buyer in writing within 10 falling five Business Days after the date of receipt of on which the Paline Tax Statement, setting forth in writing Completion Accounts become final and in reasonable detail the nature of Seller’s objections to the calculation of Paline Taxes as set forth in the Paline Tax Statement. Seller and Buyer shall negotiate in good faith the disputed portion of the Paline Taxes calculation. In the event the Parties are unable to reach an agreement within 10 days after Buyer receives written notice of any disputed amount (or such later date as may be agreed by Buyer and Seller), then the Parties will resolve such dispute binding in accordance with the procedures set forth in Exhibit N. Any amount to be paid by Seller to Buyer pursuant the dispute resolution process conducted pursuant to Exhibit N shall be paid within 10 Business Days of such determination by wire transfer of immediately available funds to an account or accounts designated in writing by Buyer.
(b) If, after payment terms of the Paline Taxes pursuant to Section 2.4(a), there is a subsequent adjustment in the amount of the Paline Taxes as a result of any Proceeding related to Taxes, and Majority SPA;
(i) if any portion of the Paline Taxes previously paid by Seller pursuant Net Working Capital and Cash as set out in the Completion Accounts exceeds the Target Net Working Capital and Cash, the Buyer shall release the Adjustment Payment Holdback Amount to Section 2.4(a) the Option Sellers and, provided the excess is finally determined as a result of such adjustment not less than an amount equal to not have been owingthe Threshold, then Buyer in addition, shall pay to Seller such portion the Option Sellers an amount equal to the Optionholder Proportion of the excess above the Threshold and the percentage of the aggregate amount payable under this Clause 3.2(b)(i) that is determined not payable to each Option Seller shall be owing or equal to such Option Sellers’ Proportion;
(ii) if the Paline Taxes are finally determined Net Working Capital and Cash as set out in the Completion Accounts is less than the Target Net Working Capital and Cash by a result figure exceeding the Threshold, then:
(A) if the Optionholder Proportion of such adjustment the shortfall (that is an amount that exceeds the Threshold) is equal to be or in excess of the Paline Taxes originally paidAdjustment Payment Holdback Amount then the Buyer shall be permitted to retain the Adjustment Payment Holdback Amount;
(B) if the Optionholder Proportion of the shortfall (that is an amount that exceeds the Threshold) is less than the Adjustment Payment Holdback Amount then the Buyer shall be permitted to withhold an amount equal to such shortfall from the Adjustment Payment Holdback Amount and thereafter pay the remaining amount to the Option Sellers in accordance with the Option Seller’s Proportion; and
(C) if the Optionholder Proportion shortfall (that is an amount that exceeds the Threshold) is more than the Adjustment Payment Holdback Amount then, then in addition to the Buyer retaining the Adjustment Payment Holdback Amount pursuant to (A) above, the Option Sellers shall pay the remaining amount of the Optionholder Proportion of the shortfall (above the amount of the Threshold) to the Buyer and the percentage payable under this Clause 3.2(b)(ii)(C) by each Option Seller shall pay be equal to Buyer such excess amount. Any amount to be paid by Seller or Buyer pursuant to the immediately preceding sentence shall be paid within 10 Business Days of the determination of the adjustment by wire transfer of immediately available funds to an account or accounts designated in writing by the recipient of such paymentOption Seller’s Proportion.
(c) IfTo the extent that the aggregate of the amounts owed to HSBC UK Bank plc under the Company’s international business overdraft facility and asset finance facility are less than the HSBC Debt Amount on the Completion Date, after the Buyer shall pay to the Option Sellers an amount equal to the Optionholder Proportion of the difference on the Completion Accounts Agreement Date in accordance with Clause 3.2(d) and in accordance with each Option Sellers’ Proportion.
(d) Payment of any amount due to the Option Sellers pursuant to this Clause 3.2 shall be paid in aggregate by the Buyer to the Company’s Bank Account, proof of payment of which shall be an effective discharge of the Paline Taxes pursuant Buyer’s obligation to Section 2.4(a), pay such amounts under this Clause 3.2.
(e) The Optionholder Consideration shall be deemed to be adjusted by an amount equal to:
(i) the Tax basis aggregate amount of any payment made by any Option Seller to the assets Buyer in respect of Paline Pipeline Company following the Paline Pipeline Equity Transfer is reduced as a result of a Proceeding, any Claim;
(ii) the aggregate amount of any payment made by the Paline Taxes would have been reduced had the Paline Taxes been determined based on an amount Buyer to any Option Seller in respect of consideration payable in the Paline Pipeline Equity Transfer that is consistent with the amount any breach of such reduced Tax basis and this Agreement;
(iii) Buyer, the Companies or their Affiliates are entitled to (or upon filing aggregate of an amended Tax Return or other appropriate form would have been entitled to) receive a refund (whether by payment, credit, offset or otherwise) related any amounts paid to the Paline Taxes described in clause Option Sellers by the Buyer pursuant to Clause 3.2(c);
(iiiv) the aggregate amount of this sentence any Adjustment Payment made to the Buyer by the Option Sellers pursuant to Clause 3.2(b)(ii); and
(a “Paline Refund”v) the aggregate amount of any Adjustment Payments made to the Option Sellers by the Buyer pursuant to Clause 3.2(b)(i), then Buyer and any adjustment shall pay to Seller be apportioned between the amount of the Paline Refund but only to the extent such amount exceeds any additional Taxes that are incurred (or upon filing of an amended Tax Return or other Parties as appropriate form would have been incurred) by Buyer, the Companies or their Affiliates as a result of reducing the amount of consideration payable in the Paline Pipeline Equity Transfer in a manner context, provided that is consistent with the amount of such Optionholder Consideration shall not be reduced Tax basis (including any Taxes resulting from cancellation of indebtedness income resulting from such reduction of consideration). The Parties shall cooperate, and shall cause their Affiliates to cooperate, in order to take any necessary steps to claim any such refund. The determination of the amount of and the timing of any payment under the first sentence of this Section 2.4(c) shall be based on the principles of Section 2.4(a) and without regard to Buyer’s consolidated Tax group’s loss or credit carrybacks. Additionally, in the event a Paline Refund has actually been obtained and is subsequently challenged and adjusted as a result of any Proceeding related to Taxes then the principles of Section 2.4(b) and Section 7.6 shall apply to such adjusted Paline Refundbelow zero.
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