Adjustment to Purchase Price. (a) The Closing Payment shall be increased by the parties' good faith estimate of the Current Assets of Seller and decreased by the parties' good faith estimate of the Current Liabilities of Seller as of the Closing Date (the "Closing Adjustment"), which adjustment shall be subject to final adjustment as provided for in paragraph (c) below. (b) No later than sixty (60) days after the Closing Date, or within three (3) days after receipt of the necessary accounting data from the NRTC Central Billing System, whichever is later, Purchaser shall make and deliver to Seller a balance sheet reflecting the Current Assets and Current Liabilities of Seller as of the Closing Date (the "Closing Date Balance Sheet"), prepared on a basis consistent with GAAP. For purposes of the Closing Adjustment and the Final Closing Adjustment (as hereinafter defined), the amount of Accounts Receivable of Seller to be included in the Closing Date Balance Sheet shall include only Accounts Receivable of Subscribers as reflected on Report 18A (Subscriber Accounts Receivable Aging By Account) of the NRTC Central Billing System Reports less a reserve of six percent (6%) for Accounts Receivable which are not collectible. In addition, the Closing Date Balance Sheet and the Final Closing Adjustment shall not include as a Current Asset any accounts receivable arising from Leased Subscriber Equipment. Purchaser may, by providing Seller with written notice at least five (5) days prior to the Closing, elect to purchase all, or certain of, the DSS(TM) subscriber equipment owned by Seller (other than Leased Subscriber Equipment) on the Closing Date; provided, however, Purchaser shall not have the right to acquire any assets attributable to Seller's Electric Business. Any such equipment which is purchased by Purchaser shall be included as Inventory in the Closing Date Balance Sheet. Except as set forth in this Section 4.4(b), no other assets or liabilities shall be included in the Closing Date Balance Sheet. Seller shall make available to Purchaser such documentation, back-up, invoices, and books and records of Seller as Purchaser may reasonably request. (c) Seller and Purchaser shall negotiate in good faith to reconcile any discrepancies which may arise in connection with the determination of the Closing Date Balance Sheet. If Seller and Purchaser are unable to reconcile such discrepancies, Seller shall have fifteen (15) days from presentment of the Closing Date Balance Sheet by Purchaser to notify Purchaser if Seller wishes to have Purchaser's determination examined. If Seller elects to have Purchaser's determination examined, it shall be submitted to the determination in Atlanta, Georgia, by the Certified Public Accounting firm of KMPG Peat Marwick (or any other independent Certified Public Accounting firm mutually acceptable to Seller and Purchaser), the cost of such examination to be paid fifty percent (50%) by Seller and fifty percent (50%) by Purchaser. The determination by Purchaser shall be final and binding on the parties unless Seller elects to have an examination as provided herein, in which case the results of the examination shall be made within thirty (30) days of such referral, and shall be final and binding on the parties (the "Final Closing Adjustment"). (d) To the extent the Final Closing Adjustment is less than the Closing Adjustment, Seller shall pay the difference in cash to Purchaser within five (5) days after the final determination. In the event the Final Closing Adjustment is greater than the Closing Adjustment, Purchaser shall pay such excess in cash to Seller within five (5) days after the final determination. If, following any payment pursuant to this Section 4.4(d), an error (in billing or reporting by NRTC or otherwise) is thereafter discovered which would have affected the Final Closing Adjustment, the party in whose favor the error was made shall immediately pay in cash the amount of such error to the other party.
Appears in 4 contracts
Sources: Asset Purchase Agreement (Digital Television Services of Kansas LLC), Asset Purchase Agreement (Digital Television Services of Kansas LLC), Asset Purchase Agreement (Digital Television Services of Kansas LLC)
Adjustment to Purchase Price. (a) The Closing Payment In the event the Final Statement ---------------------------- reflects an increase in the actual cost of the Inventory, the aggregate Book Value of the Fixed Assets, the amount paid in Paid Time Off or the Advertising Allowance, the Purchase Price shall be increased by adjusted upward (i) on a dollar for dollar basis for any increase in the parties' good faith estimate cost of Inventory, Book Value of the Current Assets of Seller Fixed Assets, or amount paid in Paid Time Off, and decreased by (ii) one dollar for every two dollar increase in Advertising Allowance. In the parties' good faith estimate event that the Final Statement reflects a decrease in the actual cost of the Current Liabilities of Seller as Inventory, the aggregate Book Value of the Closing Date Fixed Assets, the amount paid in Paid Time Off or the Advertising Allowance, the Purchase Price shall be adjusted downward (i) on a dollar for dollar basis for any decrease in the "Closing Adjustment"cost of Inventory, Book Value of the Fixed Assets, or amount paid in Paid Time Off, and (ii) one dollar for every two dollar decrease in Advertising Allowance. If such adjustments result in a balance due the Sellers (after taking into account the amount of the upward or downward adjustment to the Purchase Price made based on the Preliminary Statement), which adjustment the Buyer shall be subject pay such balance to final adjustment as provided for in paragraph (c) below.
(b) No later than sixty (60) the Parent within fifteen days after the Closing Date, or within three (3) days after receipt date of determination of the necessary accounting data from the NRTC Central Billing System, whichever is later, Purchaser shall make and deliver to Seller a balance sheet reflecting the Current Assets and Current Liabilities of Seller as of the Closing Date (the "Closing Date Balance Sheet"), prepared on a basis consistent with GAAP. For purposes of the Closing Adjustment and the Final Closing Adjustment (as hereinafter defined), the amount of Accounts Receivable of Seller to be included in the Closing Date Balance Sheet shall include only Accounts Receivable of Subscribers as reflected on Report 18A (Subscriber Accounts Receivable Aging By Account) of the NRTC Central Billing System Reports less a reserve of six percent (6%) for Accounts Receivable which are not collectible. In addition, the Closing Date Balance Sheet and the Final Closing Adjustment shall not include as a Current Asset any accounts receivable arising from Leased Subscriber Equipment. Purchaser may, by providing Seller with written notice at least five (5) days prior to the Closing, elect to purchase all, or certain of, the DSS(TM) subscriber equipment owned by Seller (other than Leased Subscriber Equipment) on the Closing DateStatement; provided, however, Purchaser that in no event shall not have -------- ------- the right Buyer be obligated to acquire any assets attributable to Seller's Electric Business. Any such equipment which is purchased by Purchaser shall be included as Inventory pay in the aggregate more than One Hundred Fifty Thousand Dollars ($150,000) for any Purchase Price adjustments resulting from an increase in the aggregate Book Value as of July 31, 1996, of the Fixed Assets transferred on the Closing Date Balance SheetDate. Except as set forth If such adjustment results in this Section 4.4(ba balance due the Buyer (after taking into account the amount of the upward or downward adjustment to the Purchase Price made based on the Preliminary Statement), no other assets or liabilities the Sellers shall be included in pay such balance to the Closing Date Balance Sheet. Seller shall make available to Purchaser such documentation, back-up, invoices, and books and records of Seller as Purchaser may reasonably request.
(c) Seller and Purchaser shall negotiate in good faith to reconcile any discrepancies which may arise in connection with the determination of the Closing Date Balance Sheet. If Seller and Purchaser are unable to reconcile such discrepancies, Seller shall have Buyer within fifteen (15) days from presentment after the date of determination of the Closing Date Balance Sheet by Purchaser to notify Purchaser if Seller wishes to have Purchaser's determination examined. If Seller elects to have Purchaser's determination examined, it shall be submitted to the determination in Atlanta, Georgia, by the Certified Public Accounting firm of KMPG Peat Marwick (or any other independent Certified Public Accounting firm mutually acceptable to Seller and Purchaser), the cost of such examination to be paid fifty percent (50%) by Seller and fifty percent (50%) by Purchaser. The determination by Purchaser shall be final and binding on the parties unless Seller elects to have an examination as provided herein, in which case the results of the examination shall be made within thirty (30) days of such referral, and shall be final and binding on the parties (the "Final Closing Adjustment")Statement.
(d) To the extent the Final Closing Adjustment is less than the Closing Adjustment, Seller shall pay the difference in cash to Purchaser within five (5) days after the final determination. In the event the Final Closing Adjustment is greater than the Closing Adjustment, Purchaser shall pay such excess in cash to Seller within five (5) days after the final determination. If, following any payment pursuant to this Section 4.4(d), an error (in billing or reporting by NRTC or otherwise) is thereafter discovered which would have affected the Final Closing Adjustment, the party in whose favor the error was made shall immediately pay in cash the amount of such error to the other party.
Appears in 3 contracts
Sources: Asset Purchase Agreement (Cellstar Corp), Asset Purchase Agreement (Cellstar Corp), Asset Purchase Agreement (Cellstar Corp)
Adjustment to Purchase Price. (a) The Closing Payment Purchase Price shall be increased by or reduced as set forth in Section 2.5(f) hereof. Any increase or decrease in the parties' good faith estimate of the Current Assets of Seller and decreased by the parties' good faith estimate of the Current Liabilities of Seller as of the Closing Date (the "Closing Adjustment"), which adjustment Purchase Price pursuant to this Section 2.5 shall be subject referred to final adjustment as provided for in paragraph (c) belowa “Purchase Price Adjustment.”
(b) No later than sixty (60) Within 90 days after the Closing Date, or within three (3) days after receipt of the necessary accounting data from the NRTC Central Billing System, whichever is later, Purchaser Buyer shall make prepare and deliver to Seller a balance sheet reflecting the Current Assets and Current Liabilities of Seller as of the Closing Date statement (the "Closing Date Balance Sheet"“Preliminary Working Capital Statement”), prepared on a basis consistent which sets forth Buyer’s calculation of Net Working Capital (calculated in accordance with GAAP. For purposes of the Closing Adjustment Working Capital Guidelines) and the Final Closing Adjustment (as hereinafter defined)Net Working Capital Deficit, the amount of Accounts Receivable of Seller to be included in the Closing Date Balance Sheet shall include only Accounts Receivable of Subscribers as reflected on Report 18A (Subscriber Accounts Receivable Aging By Account) of the NRTC Central Billing System Reports less a reserve of six percent (6%) for Accounts Receivable which are not collectible. In addition, the Closing Date Balance Sheet and the Final Closing Adjustment shall not include as a Current Asset any accounts receivable arising from Leased Subscriber Equipment. Purchaser may, by providing Seller with written notice at least five (5) days prior to the Closing, elect to purchase allif any, or certain ofthe Net Working Capital Surplus, the DSS(TM) subscriber equipment owned by Seller (other than Leased Subscriber Equipment) on the Closing Date; provided, however, Purchaser shall not have the right to acquire any assets attributable to Seller's Electric Business. Any such equipment which is purchased by Purchaser shall be included as Inventory in the Closing Date Balance Sheet. Except as set forth in this Section 4.4(b), no other assets or liabilities shall be included in the Closing Date Balance Sheet. Seller shall make available to Purchaser such documentation, back-up, invoices, and books and records of Seller as Purchaser may reasonably requestif any.
(c) Seller shall have a period of 30 days after the date Seller receives the Preliminary Working Capital Statement from Buyer to deliver to Buyer written notice of Seller’s disagreement with any item contained in the Preliminary Working Capital Statement, which notice shall set forth in reasonable detail the basis for such disagreement (a “Notice of Disagreement”). During the 30-day period following Seller’s receipt of the Preliminary Working Capital Statement, Buyer shall (i) permit Seller and Purchaser its accountants to consult with Buyer’s accountants and (ii) provide to Seller and its accountants reasonable access during reasonable hours and under reasonable circumstances to all relevant books and records and any work papers relating to the preparation of the Preliminary Working Capital Statement, in each case as reasonably requested by Seller in connection with Seller’s review of the Preliminary Working Capital Statement. During the 30 days following Buyer’s receipt of a Notice of Disagreement, if any, Buyer and Seller shall negotiate seek in good faith to reconcile resolve in writing any discrepancies differences which may arise they have with respect to the matters specified in connection the Notice of Disagreement, and upon such resolution, the Final Working Capital Statement shall be prepared in accordance with the determination agreement of the Closing Date Balance Sheet. If Seller Buyer and Purchaser are unable to reconcile such discrepancies, Seller shall have fifteen (15) days from presentment of the Closing Date Balance Sheet by Purchaser to notify Purchaser if Seller wishes to have Purchaser's determination examined. If Seller elects to have Purchaser's determination examined, it shall be submitted to the determination in Atlanta, Georgia, by the Certified Public Accounting firm of KMPG Peat Marwick (or any other independent Certified Public Accounting firm mutually acceptable to Seller and Purchaser), the cost of such examination to be paid fifty percent (50%) by Seller and fifty percent (50%) by Purchaser. The determination by Purchaser shall be final and binding on the parties unless Seller elects to have an examination as provided herein, in which case the results of the examination shall be made within thirty (30) days of such referral, and shall be final and binding on the parties (the "Final Closing Adjustment")Seller.
(d) To If Buyer and Seller are unable to resolve any disputed items set forth in the extent Notice of Disagreement within 30 days following Buyer’s receipt of such Notice of Disagreement (or such longer period as Buyer and Seller shall mutually agree in writing), such dispute shall be submitted to, and all unresolved issues having a bearing on such dispute shall be resolved by, (i) KPMG US LLP or (ii) in the Final Closing Adjustment event such accounting firm is unable or unwilling to take such assignment, a nationally recognized accounting firm mutually agreed upon by Buyer and Seller or, if Buyer and Seller cannot agree on an accounting firm within 45 days after timely delivery of a Notice of Disagreement (or such longer period as Buyer and Seller shall mutually agree in writing), each of Buyer and Seller shall select a nationally recognized accounting firm and such two accounting firms shall designate a third nationally recognized accounting firm that neither presently is, nor in the past two years has been, engaged by either Party. KPMG US LLP, the accounting firm so agreed to by Buyer and Seller or the third accounting firm so selected by the two accounting firms is hereinafter referred to as the “Accounting Firm.” Buyer and Seller shall submit to the Accounting Firm for review and resolution all matters (but only such matters) that are set forth in the Notice of Disagreement which remain in dispute. Buyer and Seller shall instruct the Accounting Firm to select one of its partners experienced in purchase price adjustment disputes to make a final determination of Net Working Capital and the Net Working Capital Deficit, if any, or the Net Working Capital Surplus, if any, based solely on the items that are in dispute as set forth in the Notice of Disagreement. Buyer and Seller shall instruct the Accounting Firm that, in resolving the items in the Notice of Disagreement that are still in dispute and in determining Net Working Capital and the Net Working Capital Deficit, if any, or the Net Working Capital Surplus, if any, the Accounting Firm shall (A) not assign to any item in dispute a value that is (1) greater than the greatest value for such item assigned by Buyer, on the one hand, or Seller, on the other hand or (2) less than the Closing Adjustmentsmallest value for such item assigned by Buyer, on the one hand, or Seller, on the other hand, (B) make its determination based on an independent review (which will be in accordance with the guidelines and procedures set forth in this Agreement) and, if requested by Buyer or Seller, a one (1)-day conference concerning the dispute, at which conference each of Buyer and Seller shall have the right to present their respective positions with respect to the dispute and have present their respective advisors, counsel and accountants, (C) render a final resolution in writing to Buyer and Seller (which final resolution shall be requested by Buyer and Seller to be delivered not more than 45 days following submission of such disputed matters), which shall be final, conclusive and binding on the Parties with respect to Net Working Capital and the Net Working Capital Deficit or Net Working Capital Surplus, if any, and (D) provide a written report to Buyer and Seller, if requested by either of them, which sets forth in reasonable detail the basis for the Accounting Firm’s final determination. The fees and expenses of the Accounting Firm shall be allocated between Buyer, on the one hand, and Seller, on the other hand, based upon the percentage by which the portion of the contested amount not awarded to each of Buyer and Seller bears to the amount actually contested by such Party.
(e) The Preliminary Working Capital Statement shall be deemed final for the purposes of this Section 2.5 upon the earliest of (i) the failure of Seller to notify Buyer of a dispute within 30 days after Seller receives the Preliminary Working Capital Statement, (ii) the resolution of all disputes, pursuant to Section 2.5(c), by Buyer and Seller and (iii) the resolution of all disputes, pursuant to Section 2.5(d), by the Accounting Firm. The Preliminary Working Capital Statement, as finalized in accordance with this Section 2.5, is referred to herein as the “Final Working Capital Statement.”
(f) Within 10 days following the determination of the Final Working Capital Statement in accordance with Section 2.5(e):
(i) If there is a Net Working Capital Deficit as finally determined pursuant to this Section 2.5, then Buyer shall be entitled to recover an amount equal to such deficit from the Adjustment Escrow Fund; provided, however, that to the extent, if any, that such deficit exceeds the Adjustment Escrow Fund, then Seller shall pay the difference in cash amount of such excess to Purchaser within five (5) days after the final determinationBuyer. In accordance with the event foregoing, Seller and Buyer shall promptly deliver a joint written instruction to the Final Closing Escrow Agent instructing it to release (A) to Buyer or its designee, from the Adjustment Escrow Fund, an amount equal to the lesser of (i) the Net Working Capital Deficit, if any or (ii) the Adjustment Escrow Fund and (B) if an amount remains in the Adjustment Escrow Fund after giving effect to the foregoing clause “(A),” the remaining amount of the Adjustment Escrow Fund to Seller.
(ii) If there is greater than the Closing Adjustment, Purchaser shall pay such excess in cash to Seller within five (5) days after the final determination. If, following any payment a Net Working Capital Surplus as finally determined pursuant to this Section 4.4(d)2.5, then (A) Seller and Buyer shall promptly deliver a joint written instruction to the Escrow Agent instructing it to release the Adjustment Escrow Fund to Seller, and (B) Buyer shall also pay to Seller an error amount equal to the lesser of (in billing or reporting by NRTC or otherwiseX) is thereafter discovered which would have affected the Final Closing Adjustment, the party in whose favor the error was made shall immediately pay in cash the amount of the Net Working Capital Surplus, and (Y) Two Million Dollars ($2,000,000).
(g) All payments required under this Section 2.5 shall be made in cash by wire transfer of immediately available funds to such error bank account(s) as shall be designated in writing by the recipient(s) at least three Business Days prior to the other partyapplicable payment date.
(h) Any payments by Buyer required under this Section 2.5 shall be treated as an adjustment to the Purchase Price for U.S. federal income tax purposes.
Appears in 3 contracts
Sources: Purchase Agreement (Basic Energy Services, Inc.), Purchase Agreement (Basic Energy Services, Inc.), Purchase Agreement (Ascribe Capital LLC)
Adjustment to Purchase Price. (a) The Closing Payment shall be increased by the parties' good faith estimate of the Current Assets of Seller and decreased by the parties' good faith estimate of the Current Liabilities of Seller as of the Closing Date (the "Closing Adjustment"), which adjustment shall be subject to final adjustment as provided for in paragraph (c) below.
(b) No later than Within sixty (60) days after the Closing Date, or Seller shall deliver to Buyer, at Seller's sole cost and expense, a statement setting forth the Closing Adjustment Amount (the "Closing Statement"). Contemporaneously, Seller shall deliver to Buyer a schedule setting forth a calculation of the Purchase Price and the amount of any payment to be made, and by whom, pursuant to Section 3.3(c).
(b) In the event that Buyer is in disagreement with the Closing Statement, and in the event that the aggregate amount of such disagreements exceeds $100,000, Buyer shall, within three ten (310) days Business Days after receipt of the necessary accounting data from Closing Statement, notify Seller of such disagreements setting forth with specificity the NRTC Central Billing System, whichever nature and amounts thereof. In the event that Buyer is later, Purchaser shall make and deliver to Seller in disagreement with only a balance sheet reflecting the Current Assets and Current Liabilities of Seller as portion of the Closing Date (Statement, Buyer or Seller, as the "Closing Date Balance Sheet")case may be, prepared on a basis consistent with GAAP. For purposes of the Closing Adjustment and the Final Closing Adjustment (as hereinafter defined), the amount of Accounts Receivable of Seller to be included shall pay all undisputed amounts in the Closing Date Balance Sheet shall include only Accounts Receivable of Subscribers as reflected on Report 18A (Subscriber Accounts Receivable Aging By Account) of the NRTC Central Billing System Reports less a reserve of six percent (6%) for Accounts Receivable which are not collectible. In addition, the Closing Date Balance Sheet and the Final Closing Adjustment shall not include as a Current Asset any accounts receivable arising from Leased Subscriber Equipment. Purchaser may, by providing Seller with written notice at least five (5) days prior to the Closing, elect to purchase all, or certain of, the DSS(TM) subscriber equipment owned by Seller (other than Leased Subscriber Equipment) on the Closing Date; provided, however, Purchaser shall not have the right to acquire any assets attributable to Seller's Electric Business. Any such equipment which is purchased by Purchaser shall be included as Inventory in the Closing Date Balance Sheet. Except as manner set forth in Section 3.3(c); and all other amounts shall be paid at such time as all disagreements are resolved in accordance with this Section 4.4(b3.3(b). If (i) the aggregate amount of the disagreements referred to in this Section 3.3(b) does not exceed $100,000 or (ii) Buyer fails to notify Seller of all disagreements within the ten (10) Business Day period provided for herein, then the Closing Statement, as delivered by Seller pursuant to Section 3.3(a), no other assets or liabilities shall be included final, binding and conclusive on the Parties hereto. If Buyer is in disagreement with the Closing Date Balance Sheet. Statement and notifies Seller within such ten (10) Business Day period, then the Parties shall make available promptly attempt to Purchaser resolve such documentation, back-up, invoices, and books and records of Seller as Purchaser may reasonably request.
(c) Seller and Purchaser shall negotiate in good faith to reconcile any discrepancies which may arise in connection with the determination of the Closing Date Balance Sheetdisagreements by negotiation. If Seller and Purchaser the Parties are unable to reconcile resolve such discrepancies, Seller shall have fifteen (15) days from presentment of the Closing Date Balance Sheet by Purchaser to notify Purchaser if Seller wishes to have Purchaser's determination examined. If Seller elects to have Purchaser's determination examined, it shall be submitted to the determination in Atlanta, Georgia, by the Certified Public Accounting firm of KMPG Peat Marwick (or any other independent Certified Public Accounting firm mutually acceptable to Seller and Purchaser), the cost of such examination to be paid fifty percent (50%) by Seller and fifty percent (50%) by Purchaser. The determination by Purchaser shall be final and binding on the parties unless Seller elects to have an examination as provided herein, in which case the results of the examination shall be made disagreements within thirty (30) days following such notice of disagreement by Buyer, the Parties shall appoint an Independent Accounting Firm within forty-five (45) days following such notice, which shall review the Closing Statement and determine the Closing Adjustment Amount. Resolution of any disagreements shall be made by the Independent Accounting Firm in a writing addressed to all Parties within thirty (30) days following referral to it by the Parties of such referral, and disagreements in accordance with this Agreement. The findings of such Independent Accounting Firm shall be final final, binding and binding conclusive on the parties (Parties. All costs and fees of the "Final Closing Adjustment")Independent Accounting Firm shall be borne equally by Buyer and Seller.
(dc) To No later than the extent fifth (5th) Business Day following the Final determination of the Closing Adjustment is less than the Closing AdjustmentAmount pursuant to Section 3.3(b), either (i) Seller shall pay Buyer the difference in cash to Purchaser within five (5) days after the final determination. In the event the Final Closing Adjustment is greater than amount, if any, by which the Closing AdjustmentPayment exceeds the Purchase Price, Purchaser or (ii) Buyer shall pay Seller the amount, if any, by which the Purchase Price exceeds the Closing Payment, in either case, together with simple interest accruing on such excess in cash payment at the Prime Rate from the Closing Date through and including the date of payment, by wire transfer of immediately available funds to Seller within five (5) days after an account designated by the final determinationreceiving Party. IfAs used herein, following "Prime Rate" means, as of any payment pursuant to this Section 4.4(d), an error (in billing or reporting by NRTC or otherwise) is thereafter discovered which would have affected the Final Closing Adjustmentdate, the party prime rate as published in whose favor The Wall Street Journal on such date or, if not published on such date, on the error was made shall immediately pay in cash the amount most recent date of such error to the other partypublication.
Appears in 3 contracts
Sources: Purchase and Sale Agreement (Atlantic City Electric Co), Purchase and Sale Agreement (Delmarva Power & Light Co /De/), Purchase and Sale Agreement (Delmarva Power & Light Co /De/)
Adjustment to Purchase Price. (a) The Closing Payment On the date hereof, the Company shall be increased deliver to the Buyer a balance sheet as of August 31, 1998, which has been prepared by the parties' good faith estimate of Company and attached hereto as Schedule 2.3 (the Current Assets of Seller "Balance Sheet"). Within ninety (90) days following the Closing Date, Ernst & Young LLP ("E&Y") shall deliver to the Buyer and decreased by to the parties' good faith estimate of the Current Liabilities of Seller Shareholder Representative (as defined in Section 4 below) an audited balance sheet as of the Closing Date (the "Closing AdjustmentBalance Sheet"), which adjustment shall be subject to final adjustment ) showing the Company's Net Asset Value (as provided for in paragraph (cdefined herein) below.
(b) No later than sixty (60) days after the Closing Date, or within three (3) days after receipt as of the necessary accounting data from close of business on the NRTC Central Billing System, whichever is later, Purchaser shall make and deliver day prior to Seller a balance sheet reflecting the Current Assets and Current Liabilities of Seller as of the Closing Date (the "Closing Date Balance Sheet Net Asset Value"). The Closing Balance Sheet shall be prepared in accordance with generally accepted accounting principles ("GAAP") consistently applied using the same methodology as was used in the preparation of the Financial Statements (as defined in Section 6.5 hereof) and the Balance Sheet. In the event that the Closing Balance Sheet Net Asset Value is less than the Net Asset Value as shown on the Balance Sheet (the "Target Net Asset Value"), prepared on a basis consistent with GAAPthe Purchase Price shall be reduced by one dollar for each dollar that the Closing Balance Sheet Net Asset Value is less than the Target Net Asset Value. For purposes In the event that the amount of the Closing Adjustment Balance Sheet Net Asset Value is more than the Target Net Asset Value, the Purchase Price shall be increased by one dollar for each dollar that the Closing Balance Sheet Net Asset Value is more than the Target Net Asset Value (collectively, the "Purchase Price Adjustment"). The Shareholder Representative and the Final Closing Adjustment (as hereinafter defined), the amount of Accounts Receivable of Seller Buyer shall be entitled to be included in review the Closing Date Balance Sheet shall include only Accounts Receivable for a period of Subscribers as reflected on Report 18A thirty (Subscriber Accounts Receivable Aging By Account30) days after delivery by E&Y. In the event that before the end of such thirty (30) day period, either of such persons notifies the NRTC Central Billing System Reports less a reserve of six percent (6%) for Accounts Receivable which are not collectible. In addition, other in writing that they dispute the Closing Date Balance Sheet and the Final Closing Adjustment shall not include as a Current Net Asset any accounts receivable arising from Leased Subscriber Equipment. Purchaser may, by providing Seller with written notice at least five (5) days prior to the Closing, elect to purchase all, or certain of, the DSS(TM) subscriber equipment owned by Seller (other than Leased Subscriber Equipment) Value shown on the Closing Date; providedBalance Sheet, however, Purchaser shall not have then the right to acquire any assets attributable to Seller's Electric Business. Any such equipment which is purchased by Purchaser Closing Balance Sheet Shareholders' Equity shall be included as Inventory in determined by PricewaterhouseCoopers LLP, or other Big 5 accounting firm mutually agreed to by Buyer and the Closing Date Balance Sheet. Except as set forth in this Section 4.4(bShareholder Representative ("Second Auditor"), no other assets or liabilities shall be included in the Closing Date Balance Sheet. Seller shall make available to Purchaser such documentation, back-up, invoices, and books and records of Seller as Purchaser may reasonably request.
(c) Seller and Purchaser shall negotiate in good faith to reconcile any discrepancies which may arise in connection with the determination of the Closing Date Balance Sheet. If Seller and Purchaser are unable to reconcile such discrepancies, Seller shall have fifteen (15) days from presentment of the Closing Date Balance Sheet by Purchaser to notify Purchaser if Seller wishes to have Purchaser's determination examined. If Seller elects to have Purchaser's determination examined, it shall be submitted to the determination in Atlanta, Georgia, by the Certified Public Accounting firm of KMPG Peat Marwick (or any other independent Certified Public Accounting firm mutually acceptable to Seller and Purchaser), the cost of such examination to be paid fifty percent (50%) by Seller and fifty percent (50%) by Purchaser. The determination by Purchaser shall be final and binding on the parties unless Seller elects to have an examination as provided herein, in which case the results of the examination shall be made within thirty (30) days of the date such referral, firm is retained and when delivered shall be final and binding on the parties. If the Closing Balance Sheet Net Asset Value as determined by the Second Auditor varies in favor of the requesting party, the cost of the Second Auditor shall be paid by the non-requesting party. If the Closing Balance Sheet Net Asset Value as determined by the Second Auditor does not vary in favor of the requesting party, the cost of the Second Auditor shall be paid by the requesting party. If neither the Shareholder Representative nor the Buyer notifies the other that it is contesting the Closing Balance Sheet within the above specified time period, the Closing Balance Sheet provided by E&Y shall be final and binding on all parties (for purposes of making the "Final Closing above specified Purchase Price Adjustment").
(d) To . When the extent Purchase Price Adjustment has been finally determined, if a Purchase Price reduction results, the Final Closing Buyer shall reduce the Holdback Amount by the amount of the Purchase Price Adjustment; provided, that, if the Purchase Price Adjustment is less greater than the Closing AdjustmentHoldback Amount, Seller then each of the Shareholders shall pay refund such Shareholder's Prorata Share of the difference amount by which the Purchase Price Adjustment exceeds the Holdback Amount in cash (or by immediately available funds transfer) to Purchaser the Buyer within five (5) days after of the final determination. In date that the event the Final Closing Purchase Price Adjustment is greater than finally determined. If the Closing AdjustmentPurchase Price Adjustment results in a Purchase Price increase, Purchaser shall pay such excess in cash to Seller within five (5) days after the final determination. If, following any payment pursuant to this Section 4.4(d), an error (in billing or reporting by NRTC or otherwise) is thereafter discovered which would have affected the Final Closing Adjustment, the party in whose favor the error was made shall immediately pay in cash the amount of such error increase shall be added to the other partyHoldback Amount and shall be paid as provided in Section 3 below. For purposes hereof, "Net Asset Value" shall mean the tangible assets of the Business less the liabilities of the Business.
Appears in 2 contracts
Sources: Stock Purchase Agreement (Smartflex Systems Inc), Stock Purchase Agreement (Saturn Electronics & Engineering Inc)
Adjustment to Purchase Price. The Purchase Price shall be ---------------------------- increased or reduced as set forth in this Section 2.6.
(a) Such increases or reductions, as the case may be, shall be referred to herein as the "Purchase Price Adjustment" and shall be determined and paid as set forth below:
(i) The Closing Payment Purchase Price shall be increased by the parties' good faith estimate net book value of all Inventories (excluding the Current Assets value of Seller items that are no longer useable at or for 014 PNPS under applicable laws and decreased regulations) held by the parties' good faith estimate of the Current Liabilities of Seller as of the Closing Date less $20,053,272, the net book value of the Seller's 1997 year-end Inventory. In the event that the net book value of all Inventory held by the Seller as of the Closing Date less $20,053,272 is a negative number, the Purchase Price shall be decreased by the difference between such amounts;
(ii) The Purchase Price shall be increased to account for the net book value of all the Seller's Nuclear Fuel as of the Closing Date less $67,934,706, the net book value of the Seller's 1997 year-end Nuclear Fuel. In the event that the net book value of the Seller's Nuclear Fuel as of the Closing Date less $67,934,706 is a negative number, the Purchase Price shall be decreased by the difference between such amounts;
(iii) The Purchase Price shall be increased by any expenses related to Required Nuclear Expenditures actually paid by the Seller during the Interim Period;
(iv) The Purchase Price shall be decreased to the extent any of the Pre-Approved Projects have not been completed and paid for prior to the Closing Date, but the decrease shall be the lesser of (i) the budgeted amount for ------ the incomplete portion of the Pre-Approved Project as set forth in Schedule 5.3 or (ii) the amounts that Buyer is required to pay for such Pre-Approved Projects following the Closing;
(v) Assuming completion of the Refueling Outage prior to Closing, the Purchase Price shall be decreased by the amortized portion of the Refueling Costs as of the Closing Date (which shall be amortized by the Seller over a 24 month period commencing the Business Day following the completion of the Refueling Outage);
(vi) The Purchase Price shall be decreased by the amount as of the Closing Date reflected in Seller's Low ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇. ▇▇. ▇▇▇▇▇▇; and
(vii) The Purchase Price shall be increased by an amount equal to the cost to the Seller to buy-out the telephone switch and related equipment lease described in Schedule 2.1(b) and the leases in respect of any Vehicles identified by Buyer pursuant to Section 2.1(m).
(b) at least twenty (20) Business Days prior to the Closing Date, the Seller shall prepare and deliver to the Buyer an Estimated Closing Statement (the "Estimated Closing Statement") that shall set forth the Seller's best estimate of all adjustments to the Purchase 014a Price required by Section 2.6(a) (the "Estimated Adjustment"). Within ten (10) Business Days following the delivery of the Estimated Closing Statement by the Seller to the Buyer, the Buyer may object in good faith to the Estimated Adjustment in writing. If the Buyer objects to the Estimated Adjustment, the Parties shall attempt to resolve such dispute by negotiation. If the Parties are unable to resolve such dispute before five (5) Business Days prior to the Closing Date (or if the Buyer fails to object to the Estimated Adjustment), the Purchase Price shall be adjusted (the "Closing Adjustment"), which adjustment shall be subject to final adjustment as provided ) for in paragraph (c) below.
(b) No later than sixty (60) days after the Closing Date, or within three (3) days after receipt of the necessary accounting data from the NRTC Central Billing System, whichever is later, Purchaser shall make and deliver to Seller a balance sheet reflecting the Current Assets and Current Liabilities of Seller as of the Closing Date (the "Closing Date Balance Sheet"), prepared on a basis consistent with GAAP. For purposes of the Closing Adjustment and the Final Closing Adjustment (as hereinafter defined), by the amount of Accounts Receivable of Seller to be included the Estimated Adjustment not in the Closing Date Balance Sheet shall include only Accounts Receivable of Subscribers as reflected on Report 18A (Subscriber Accounts Receivable Aging By Account) of the NRTC Central Billing System Reports less a reserve of six percent (6%) for Accounts Receivable which are not collectible. In addition, the Closing Date Balance Sheet and the Final Closing Adjustment shall not include as a Current Asset any accounts receivable arising from Leased Subscriber Equipment. Purchaser may, by providing Seller with written notice at least five (5) days prior to the Closing, elect to purchase all, or certain of, the DSS(TM) subscriber equipment owned by Seller (other than Leased Subscriber Equipment) on the Closing Datedispute; provided, however, Purchaser shall not have the right to acquire any assets attributable to Seller's Electric Business. Any such equipment which is purchased by Purchaser shall be included as Inventory in the Closing Date Balance Sheet. Except as set forth in this Section 4.4(b), no other assets or liabilities shall be included in the Closing Date Balance Sheet. Seller shall make available to Purchaser such documentation, back-up, invoices, and books and records of Seller as Purchaser may reasonably request.and
(c) Seller and Purchaser shall negotiate in good faith to reconcile any discrepancies which may arise in connection with the determination of the Closing Date Balance Sheet. If Seller and Purchaser are unable to reconcile such discrepancies, Seller shall have fifteen (15) days from presentment of the Closing Date Balance Sheet by Purchaser to notify Purchaser if Seller wishes to have Purchaser's determination examined. If Seller elects to have Purchaser's determination examined, it shall be submitted to the determination in Atlanta, Georgia, by the Certified Public Accounting firm of KMPG Peat Marwick (or any other independent Certified Public Accounting firm mutually acceptable to Seller and Purchaser), the cost of such examination to be paid fifty percent (50%) by Seller and fifty percent (50%) by Purchaser. The determination by Purchaser shall be final and binding on the parties unless Seller elects to have an examination as provided herein, in which case the results of the examination shall be made within thirty (30) days following the Closing Date, the Seller shall prepare and deliver to the Buyer a closing statement that shall set forth the Seller's completion of the Purchase Price Adjustment and the components thereof (the "Post-Closing Statement"). Within twenty (20) days following the delivery of the Post-Closing Statement by the Seller to the Buyer, the Buyer may object to the Post-Closing Statement in writing. The Seller agrees to cooperate with the Buyer to provide to the Buyer or the Buyer's Representatives information used to prepare the Post-Closing Statement and information relating thereto. If the Buyer objects to the Post-Closing Statement, the Parties shall attempt to resolve such dispute by negotiation. If the Parties are unable to resolve such dispute within twenty (20) days of any objection by the Buyer, the Parties shall appoint ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLC, who shall, at the Seller's and the Buyer's joint expense, review the Closing Statement and determine the appropriate Purchase Price Adjustment under this Section 2.6. The agreed upon Post-Closing Statement or the finding of such referralaccounting firm, as the case may be, shall be the Purchase Price Adjustment and shall be final and binding on the parties (Parties. Upon the "Final Closing Adjustment").
(d) To determination of the extent the Final Closing Adjustment is less than the Closing Adjustment, Seller shall pay the difference in cash to Purchaser within five (5) days after the final determination. In the event the Final Closing Adjustment is greater than the Closing Adjustment, Purchaser shall pay such excess in cash to Seller within five (5) days after the final determination. If, following any payment pursuant to this Section 4.4(d), an error (in billing or reporting by NRTC or otherwise) is thereafter discovered which would have affected the Final Closing Purchase Price Adjustment, the party in whose favor Party owing the error was made Purchase Price Adjustment shall immediately pay in cash deliver the amount of such error Purchase Price Adjustment, increased or decreased as the case may be, by amounts paid pursuant to the Estimated Adjustment, to the other partyParty no later than two (2) Business Days after such determination in immediately available funds or in any other manner as reasonably requested by the payee. The acceptance by the Buyer and the Seller of the Purchase Price Adjustment shall not constitute or be deemed to constitute a waiver of the rights of such Party in respect of any other provision of this Agreement.
Appears in 2 contracts
Sources: Purchase and Sale Agreement (Boston Edison Co), Purchase and Sale Agreement (Boston Edison Co)
Adjustment to Purchase Price. (a) The Closing Payment shall Purchase Price will be increased by or decreased, as the parties' good faith estimate case may be, dollar for dollar, to the extent that the value of the Current Net Tangible Assets of Seller and decreased by as reflected on the parties' good faith estimate Closing Balance Sheet is greater or less than zero (the "Purchase Price Adjustment"). The Closing Balance Sheet shall be a balance sheet of the Current Seller comprised of the Acquired Assets and Assumed Liabilities of Seller (provided, however, that no value shall be assigned to the Intellectual Property included in the Acquired Assets or the deferred revenue included in the Assumed Liabilities) as of the Closing Date Date, prepared by the Buyer, in the form and incorporating the adjustments set forth on Schedule 1.3 hereto. The Buyer shall send a copy of the Closing Balance Sheet to the Seller within forty-five (the "Closing Adjustment"), which adjustment shall be subject to final adjustment as provided for in paragraph (c) below.
(b) No later than sixty (6045) days after following the Closing Date, or within three (3the date of such notice being sometimes referred to herein as the "Purchase Price Adjustment Date") days after receipt together with a notice setting forth (a) the amount of the necessary accounting data from adjustment in the NRTC Central Billing System, whichever is later, Purchaser shall make Purchase Price and deliver (b) a list of any assets and liabilities rejected by Buyer pursuant to Seller a balance sheet reflecting the Current Assets and Current Liabilities of Seller as of the Closing Date Section 1.1 hereof (the "Closing Date Balance SheetPurchase Price Adjustment Notice"), prepared on a basis consistent with GAAP. For purposes of In the Closing event that the Purchase Price Adjustment and Notice sets forth an increase in the Final Closing Adjustment (as hereinafter defined)Purchase Price, the Buyer shall pay such amount of Accounts Receivable of Seller to be included in the Closing Date Balance Sheet shall include only Accounts Receivable of Subscribers as reflected on Report 18A (Subscriber Accounts Receivable Aging By Account) of the NRTC Central Billing System Reports less a reserve of six percent (6%) for Accounts Receivable which are not collectible. In addition, the Closing Date Balance Sheet and the Final Closing Adjustment shall not include as a Current Asset any accounts receivable arising from Leased Subscriber Equipment. Purchaser may, by providing Seller with written notice at least five (5) days prior to the Closing, elect to purchase all, or certain of, the DSS(TM) subscriber equipment owned by Seller (other than Leased Subscriber Equipment) on the Closing Date; provided, however, Purchaser shall not have the right to acquire any assets attributable to Seller's Electric Business. Any such equipment which is purchased by Purchaser shall be included as Inventory in the Closing Date Balance Sheet. Except as set forth in this Section 4.4(b), no other assets or liabilities shall be included in the Closing Date Balance Sheet. Seller shall make available to Purchaser such documentation, back-up, invoices, and books and records of Seller as Purchaser may reasonably request.
(c) Seller and Purchaser shall negotiate in good faith to reconcile any discrepancies which may arise in connection with the determination of the Closing Date Balance Sheet. If Seller and Purchaser are unable to reconcile such discrepancies, Seller shall have within fifteen (15) days from presentment of the Closing Date Balance Sheet by Purchaser to notify Purchaser if Seller wishes to have Purchaser's determination examined. If Seller elects to have Purchaser's determination examined, it shall be submitted to the determination in Atlanta, Georgia, by the Certified Public Accounting firm of KMPG Peat Marwick (or any other independent Certified Public Accounting firm mutually acceptable to Seller and Purchaser), the cost of such examination to be paid fifty percent (50%) by Seller and fifty percent (50%) by Purchaser. The determination by Purchaser shall be final and binding on the parties unless Seller elects to have an examination as provided herein, in which case the results of the examination shall be made within thirty (30) days of such referral, and shall be final and binding on the parties (the "Final Closing Adjustment").
(d) To the extent the Final Closing Purchase Price Adjustment is less than the Closing Adjustment, Seller shall pay the difference in cash to Purchaser within five (5) days after the final determinationDate. In the event that the Final Closing Purchase Price Adjustment is greater than Notice sets forth a decrease in the Closing AdjustmentPurchase Price, Purchaser shall pay such excess in cash to Seller within five (5) days after the final determination. If, following any payment pursuant to this Section 4.4(d), an error (in billing or reporting by NRTC or otherwise) is thereafter discovered which would have affected the Final Closing Adjustment, the party in whose favor the error was made shall immediately pay in cash the amount of such error decrease shall be set-off against the amounts due under the Note, subject to Seller's right to dispute the other partyPurchase Price Adjustment pursuant to Section 7.2 hereof.
Appears in 2 contracts
Sources: Asset Purchase Agreement (Powercerv Corp), Asset Purchase Agreement (Asa International LTD)
Adjustment to Purchase Price. (a) At least fifteen (15) Business Days prior to Closing, Seller shall prepare and deliver to Buyer an updated Schedule 1.01(b) indicating the anticipated Fixed Asset Loss Amount, if any. The Purchase Price payable by Buyer at Closing Payment shall be increased reduced by the parties' good faith estimate of the Current Assets of Seller and decreased by the parties' good faith estimate of the Current Liabilities of Seller as of the Closing Date (the "Closing Adjustment"), which adjustment shall be subject to final adjustment as provided for in paragraph (c) belowsuch Fixed Asset Loss Amount.
(b) No later than sixty (60) days after the Closing Date, or within three (3) days after receipt If Buyer disagrees with Seller’s calculation of the necessary accounting data from the NRTC Central Billing SystemFixed Asset Loss Amount, whichever is later, Purchaser Buyer shall make notify Seller in writing of any such disagreement (and deliver to Seller a balance sheet reflecting the Current Assets and Current Liabilities of Seller as of any proposed modifications thereto) within ten (10) Business Days after the Closing Date (the "Closing Date Balance Sheet"a “Dispute Notice”), prepared on . If Buyer does not deliver a basis consistent with GAAP. For purposes of the Closing Adjustment and the Final Closing Adjustment Dispute Notice within such ten (as hereinafter defined)10) Business Day period, the amount of Accounts Receivable of Seller Fixed Asset Loss Amount determined pursuant to Section 2.03(a) shall be included in the Closing Date Balance Sheet shall include only Accounts Receivable of Subscribers as reflected on Report 18A deemed final and binding (Subscriber Accounts Receivable Aging By Account) of the NRTC Central Billing System Reports less a reserve of six percent (6%) for Accounts Receivable which are not collectible. In addition, the Closing Date Balance Sheet and the Final Closing Adjustment shall not include as a Current Asset any accounts receivable arising from Leased Subscriber Equipment. Purchaser may, by providing Seller with written notice at least five (5) days prior no further adjustment to the Closing, elect to purchase all, or certain of, the DSS(TM) subscriber equipment owned by Seller (other than Leased Subscriber Equipment) on the Closing Date; provided, however, Purchaser shall not have the right to acquire any assets attributable to Seller's Electric Business. Any such equipment which is purchased by Purchaser Purchase Price shall be included as Inventory in the Closing Date Balance Sheet. Except as set forth in this Section 4.4(bmade with respect thereto), no other assets or liabilities shall be included in the Closing Date Balance Sheet. Seller shall make available to Purchaser such documentation, back-up, invoices, and books and records of Seller as Purchaser may reasonably request.
(c) If Buyer delivers a Dispute Notice within such ten (10) Business Day period, Buyer and Seller and Purchaser shall negotiate work in good faith to reconcile any discrepancies which may arise in connection with mutually agree on the determination of the Closing Date Balance Sheetfinal Fixed Asset Loss Amount. If Seller and Purchaser are unable the final Fixed Asset Loss Amount determined in accordance with this Section 2.03(c) is greater than the Fixed Asset Loss Amount determined pursuant to reconcile such discrepanciesSection 2.03(a), Seller shall have fifteen (15) days from presentment of the Closing Date Balance Sheet by Purchaser pay such excess to notify Purchaser if Seller wishes to have Purchaser's determination examined. If Seller elects to have Purchaser's determination examined, it shall be submitted to the determination in Atlanta, Georgia, by the Certified Public Accounting firm of KMPG Peat Marwick (or any other independent Certified Public Accounting firm mutually acceptable to Seller and Purchaser), the cost of such examination to be paid fifty percent (50%) by Seller and fifty percent (50%) by Purchaser. The determination by Purchaser shall be final and binding on the parties unless Seller elects to have an examination as provided herein, in which case the results of the examination shall be made within thirty (30) days of such referral, and shall be final and binding on the parties (the "Final Closing Adjustment")Buyer.
(d) To the extent the Final Closing Adjustment is less than the Closing Adjustment, Seller Any payment to be made pursuant to Section 2.03(c) shall pay the difference in cash to Purchaser be paid within five (5) days after Business Days of the final determinationdetermination of such payment amount by wire transfer of immediately available funds to such account or accounts as may be designated by the Party entitled to such payment. In Notwithstanding anything in this Agreement to the event contrary, no Buyer Indemnified Party shall have any claim with respect to any Fixed Asset (including, without limitation, pursuant to Article XI) if the Final Closing Adjustment is greater than the Closing Adjustment, Purchaser shall pay such excess in cash to Seller within five (5) days after the final determination. If, following any payment Purchase Price has been reduced pursuant to this Section 4.4(d), 2.03 with respect to such Fixed Asset.
(e) Any payments made pursuant to this Section 2.03 shall be treated as an error (in billing or reporting by NRTC or otherwise) is thereafter discovered which would have affected the Final Closing Adjustment, the party in whose favor the error was made shall immediately pay in cash the amount of such error adjustment to the other partyPurchase Price by the parties for Tax purposes, unless otherwise required by Law.
Appears in 2 contracts
Sources: Stock Purchase Agreement (Benson Hill, Inc.), Stock Purchase Agreement (Benson Hill, Inc.)
Adjustment to Purchase Price. (a) The Closing Payment shall be increased by the parties' good faith estimate of the Current Assets of Seller and decreased by the parties' good faith estimate of the Current Liabilities of Seller as of the Closing Date Within ninety (the "Closing Adjustment"), which adjustment shall be subject to final adjustment as provided for in paragraph (c) below.
(b) No later than sixty (6090) days after the Closing Date, or within three (3) days after receipt of the necessary accounting data from the NRTC Central Billing System, whichever is later, Purchaser Parties shall make and deliver to Seller mutually prepare a balance sheet reflecting the Current Assets and Current Liabilities of Seller as of statement setting forth the Closing Date Adjustment Amount (the "Closing Date Balance SheetStatement") and the amount of any payment to be made, and by whom, pursuant to Section 3.4(c), prepared on .
(b) In the event there is disagreement with respect to the preparation of only a basis consistent with GAAP. For purposes portion of the Closing Adjustment and Statement, Buyer or Seller, as the Final Closing Adjustment (as hereinafter defined)case may be, the amount of Accounts Receivable of Seller to be included shall pay all remaining amounts in the Closing Date Balance Sheet manner set forth in Section 3.4(c); and all other amounts shall include only Accounts Receivable of Subscribers be paid at such time as reflected on Report 18A (Subscriber Accounts Receivable Aging By Accountall disagreements are resolved provided in accordance with this Section 3.4(b) of or otherwise. If the NRTC Central Billing System Reports less a reserve of six percent (6%) for Accounts Receivable which are Parties cannot collectible. In addition, the Closing Date Balance Sheet and the Final Closing Adjustment shall not include as a Current Asset any accounts receivable arising from Leased Subscriber Equipment. Purchaser may, by providing Seller with written notice at least five (5) days prior to the Closing, elect to purchase all, or certain of, the DSS(TM) subscriber equipment owned by Seller (other than Leased Subscriber Equipment) mutually agree on the Closing Date; providedStatement, however, Purchaser then the Parties shall not have the right promptly attempt to acquire any assets attributable to Seller's Electric Business. Any resolve such equipment which is purchased disagreements by Purchaser shall be included as Inventory in the Closing Date Balance Sheet. Except as set forth in this Section 4.4(b), no other assets or liabilities shall be included in the Closing Date Balance Sheet. Seller shall make available to Purchaser such documentation, back-up, invoices, and books and records of Seller as Purchaser may reasonably request.
(c) Seller and Purchaser shall negotiate in good faith to reconcile any discrepancies which may arise in connection with the determination of the Closing Date Balance Sheetnegotiation. If Seller and Purchaser the Parties are unable to reconcile resolve such discrepancies, Seller shall have fifteen (15) days from presentment of the Closing Date Balance Sheet by Purchaser to notify Purchaser if Seller wishes to have Purchaser's determination examined. If Seller elects to have Purchaser's determination examined, it shall be submitted to the determination in Atlanta, Georgia, by the Certified Public Accounting firm of KMPG Peat Marwick (or any other independent Certified Public Accounting firm mutually acceptable to Seller and Purchaser), the cost of such examination to be paid fifty percent (50%) by Seller and fifty percent (50%) by Purchaser. The determination by Purchaser shall be final and binding on the parties unless Seller elects to have an examination as provided herein, in which case the results of the examination shall be made disagreements within thirty (30) days following such notice of disagreement, then the Parties shall appoint an Independent Accounting Firm within forty-five (45) days following such referral, notice to review the disputed portions of the draft Closing Statement and shall be final and binding on determine the parties (the "Final Closing Adjustment").
(d) To the extent the Final Closing Adjustment is less than the Closing Adjustment, Seller shall pay the difference in cash to Purchaser within five (5) days after the final determinationAmount. In the event that Buyer and Seller cannot promptly agree on the Final selection of an accounting firm to act as the Independent Accounting Firm following the expiration of such forty-five (45) day period, either Party may request the American Arbitration Association to appoint an Independent Accounting Firm, and such appointment shall be final, binding and conclusive on Buyer and Seller. Resolution of any disagreements shall be made by the Independent Accounting Firm in a writing addressed to all Parties within thirty (30) days following referral to it by the Parties of such disagreements in accordance with this Agreement. The findings of such Independent Accounting Firm shall be final, binding and conclusive on the Parties. The fees and expenses of the Independent Accounting Firm incurred in the resolution of such dispute shall be borne by the Parties in such proportion as is appropriate to reflect the relative benefits received by Seller on the one hand and Buyer on the other from the resolution of the dispute. For example, if Buyer challenges items underlying the calculation of the Closing Adjustment is greater Amount in the net amount of $100,000, but the Independent Accounting Firm determines that Buyer has a valid claim for only $40,000, Buyer shall bear 60% of the fees and expenses of the Independent Accounting Firm and Seller shall bear the other 40% of such fees and expenses.
(c) No later than the fifth (5th) Business Day following the determination of the Closing AdjustmentAdjustment Amount pursuant to Section 3.4(b), Purchaser either (i) Seller shall pay Buyer the amount, if any, by which the Estimated Adjustment Amount exceeds the Closing Adjustment Amount, or (ii) Buyer shall pay Seller the amount, if any, by which the Closing Adjustment Amount exceeds the Estimated Adjustment Amount, in either case, together with simple interest accruing on such excess in cash to Seller within five (5) days payment at the Prime Rate from and after the final determinationClosing Date through but not including the date of payment, by wire transfer of immediately available funds to an account designated by the receiving Party. IfAs used herein, following "Prime Rate" means, as of any payment pursuant to this Section 4.4(d), an error (in billing or reporting by NRTC or otherwise) is thereafter discovered which would have affected the Final Closing Adjustmentdate, the party prime rate as published in whose favor The Wall Street Journal on such date or, if not published on such date, on the error was made shall immediately pay in cash the amount most recent date of such error to the other partypublication.
Appears in 2 contracts
Sources: Transmission Purchase and Sale Agreement (Potomac Electric Power Co), Purchase and Sale Agreement (Potomac Electric Power Co)
Adjustment to Purchase Price. (a) The Closing Payment shall be increased by the parties' good faith estimate of the Current Assets of Seller and decreased by the parties' good faith estimate of the Current Liabilities of Seller As soon as of possible following the Closing Date (but in any event within 15 days following the Closing), the Seller shall prepare and deliver to the Buyer a statement (the "Closing AdjustmentBenchmark Working Capital Statement") setting forth the amount of Benchmark Working Capital (as defined below in Section 1.6(c)) and a statement (the "Final Working Capital Statement") setting forth the amount of Final Working Capital (as defined below in Section 1.6(c)). The Buyer shall have 15 days to review the Benchmark Working Capital Statement and the Final Working Capital Statement and supporting documentation and shall have reasonable access to the books, records and personnel of the Seller for purposes of verifying the accuracy of the calculation of Benchmark Working Capital and Final Working Capital. The Seller's calculation of Benchmark Working Capital and Final Working Capital shall be deemed final and binding unless the Buyer raises an objection in writing within 15 days of its receipt thereof, specifying in reasonable detail the nature and extent of such objection. If the Buyer raises such an objection to the calculation of Benchmark Working Capital and Final Working Capital within such 15-day period, and if the Seller and the Buyer are unable to resolve such objection within 15 days of the date the Seller receives such objection, then the disputed matter shall be submitted for determination to PriceWaterhouseCoopers or such other accounting firm of national reputation mutually agreeable to the Seller and the Buyer, which adjustment shall have up to 10 days to render its determination with respect to such disputed matter. The determination of such accounting firm shall be subject to final adjustment as provided and binding for in paragraph (c) belowall purposes. The fees and expenses of such accounting firm shall be borne equally by the Seller and the Buyer.
(b) No later than sixty (60) days after If Final Working Capital exceeds the Closing DateBenchmark Working Capital, or within three (3) days after receipt of then the necessary accounting data from Buyer will pay the NRTC Central Billing System, whichever is later, Purchaser shall make and deliver to Seller a balance sheet reflecting the Current Assets and Current Liabilities of Seller as of the Closing Date (the "Closing Date Balance Sheet"), prepared on a basis consistent with GAAP. For purposes of the Closing Adjustment and the Final Closing Adjustment (as hereinafter defined), the amount of Accounts Receivable such excess. If Final Working Capital is less than Benchmark Working Capital, then the Seller will pay the Buyer the amount of Seller to be included in the Closing Date Balance Sheet shall include only Accounts Receivable of Subscribers as reflected on Report 18A (Subscriber Accounts Receivable Aging By Account) of the NRTC Central Billing System Reports less a reserve of six percent (6%) for Accounts Receivable which are not collectible. In addition, the Closing Date Balance Sheet and the Final Closing Adjustment shall not include as a Current Asset any accounts receivable arising from Leased Subscriber Equipment. Purchaser may, by providing Seller with written notice at least five (5) days prior to the Closing, elect to purchase all, or certain of, the DSS(TM) subscriber equipment owned by Seller (other than Leased Subscriber Equipment) on the Closing Date; provided, however, Purchaser shall not have the right to acquire any assets attributable to Seller's Electric Businesssuch shortfall. Any such equipment which is purchased payments will be made within 5 business days of the determination of the adjustment by Purchaser wire transfer of immediately available funds and any such payments shall be included as Inventory in deemed to be an adjustment to the Closing Date Balance Sheet. Except as set forth in this Section 4.4(b), no other assets or liabilities shall be included in the Closing Date Balance Sheet. Seller shall make available to Purchaser such documentation, back-up, invoices, and books and records of Seller as Purchaser may reasonably requestPurchase Price.
(c) Seller and Purchaser shall negotiate in good faith to reconcile any discrepancies which may arise in connection with the determination of the Closing Date Balance Sheet. If Seller and Purchaser are unable to reconcile such discrepancies, Seller The following terms shall have fifteen (15) days from presentment of the Closing Date Balance Sheet by Purchaser to notify Purchaser if Seller wishes to have Purchaser's determination examined. If Seller elects to have Purchaser's determination examined, it shall be submitted to the determination in Atlanta, Georgia, by the Certified Public Accounting firm of KMPG Peat Marwick (or any other independent Certified Public Accounting firm mutually acceptable to Seller and Purchaser), the cost of such examination to be paid fifty percent (50%) by Seller and fifty percent (50%) by Purchaser. The determination by Purchaser shall be final and binding on the parties unless Seller elects to have an examination as provided herein, in which case the results of the examination shall be made within thirty (30) days of such referral, and shall be final and binding on the parties (the "Final Closing Adjustment").
(d) To the extent the Final Closing Adjustment is less than the Closing Adjustment, Seller shall pay the difference in cash to Purchaser within five (5) days after the final determination. In the event the Final Closing Adjustment is greater than the Closing Adjustment, Purchaser shall pay such excess in cash to Seller within five (5) days after the final determination. If, following any payment pursuant to this Section 4.4(d), an error (in billing or reporting by NRTC or otherwise) is thereafter discovered which would have affected the Final Closing Adjustment, the party in whose favor the error was made shall immediately pay in cash the amount of such error to the other party.meanings:
Appears in 2 contracts
Sources: Purchase Agreement (Enterprise Products Operating L P), Purchase Agreement (Williams Companies Inc)
Adjustment to Purchase Price. (a) The On or prior to the Closing Payment shall be increased by the parties' Date, Seller has delivered to Purchaser a statement setting forth Seller’s good faith estimate of the Current Assets of Closing Net Working Capital, which estimate is hereby recorded to have been negative $740,248 (the “Estimated Closing Net Working Capital”). Accordingly, the Closing Payment Amount is hereby recorded to be equal to $1,038,760. Notwithstanding anything to the contrary in Section 2.2(b)(i), Seller and decreased by Purchaser hereby acknowledge and agree that the parties' good faith estimate Acquired Cash is an amount equal to $50,000 and that the transfer and delivery of the Current Liabilities of Acquired Cash from Seller as to Purchaser shall be effectuated by offset from the wire transfer of the Closing Date (the "Closing Adjustment")Payment Amount to Seller, which adjustment and that Purchaser shall be subject permitted to final adjustment as provided for in paragraph (c) belowdeposit $50,000 from the Closing Payment Amount into a bank account established by Purchaser.
(b) No later than sixty Within ninety (6090) days after the Closing Date, or within three Purchaser shall prepare and deliver to Seller an unaudited statement (3the “Closing Statement”) days after receipt of the necessary accounting data from Closing Net Working Capital, which shall be prepared in accordance with the NRTC Central Billing System, whichever is laterNet Working Capital Principles. Promptly upon Seller’s request, Purchaser shall make and deliver available to Seller a balance sheet reflecting copies of the Current Assets work papers and Current Liabilities of back-up materials used by Purchaser in preparing the Closing Statement and such other documents as Seller as may reasonably request in connection with its review thereof. Within thirty (30) days after Seller’s receipt of the Closing Date (the "Closing Date Balance Sheet")Statement, prepared on Seller shall deliver to Purchaser a basis consistent with GAAP. For purposes of written statement either accepting the Closing Adjustment and the Final Closing Adjustment (as hereinafter defined), the amount of Accounts Receivable of Statement or specifying any objections thereto. If Seller to be included in the Closing Date Balance Sheet shall include only Accounts Receivable of Subscribers as reflected on Report 18A (Subscriber Accounts Receivable Aging By Account) of the NRTC Central Billing System Reports less a reserve of six percent (6%) for Accounts Receivable which are does not collectible. In additiondeliver any such objections within such thirty-day period, the Closing Date Balance Sheet Statement shall become final and binding upon all parties. If Seller does deliver such objections within such thirty-day period, and the Final Closing Adjustment shall parties cannot include as a Current Asset any accounts receivable arising from Leased Subscriber Equipment. Purchaser may, by providing Seller with written notice at least five resolve such objections within thirty (530) days prior after Purchaser’s receipt thereof, any remaining disputes shall be resolved by Ernst & Young LLP or another nationally recognized independent accounting firm mutually agreed upon by Seller and Purchaser (the “Accounting Firm”). The Accounting Firm shall be instructed to resolve such disputes within thirty (30) days after its appointment and shall resolve such disputes based solely on the presentations of Purchaser and Seller as to the Closing, elect to purchase all, or certain of, calculation of the DSS(TM) subscriber equipment owned disputed items in accordance with the Net Working Capital Principles. The resolution of such disputes by Seller (other than Leased Subscriber Equipment) on the Closing Date; provided, however, Purchaser shall not have the right to acquire any assets attributable to Seller's Electric Business. Any such equipment which is purchased by Purchaser Accounting Firm shall be included as Inventory in the Closing Date Balance Sheet. Except as set forth in this Section 4.4(b), no other assets or liabilities writing and shall be included in final and binding upon all parties, and the Closing Date Balance SheetStatement, as modified by such resolution, shall become final and binding upon the date of such resolution. Seller shall make available to Purchaser such documentation, back-up, invoices, The fees and books and records of Seller as Purchaser may reasonably request.
(c) Seller and Purchaser shall negotiate in good faith to reconcile any discrepancies which may arise in connection with the determination expenses of the Closing Date Balance Sheet. If Seller and Purchaser are unable to reconcile such discrepancies, Seller Accounting Firm shall have fifteen (15) days from presentment of the Closing Date Balance Sheet by Purchaser to notify Purchaser if Seller wishes to have Purchaser's determination examined. If Seller elects to have Purchaser's determination examined, it shall be submitted to the determination in Atlanta, Georgia, by the Certified Public Accounting firm of KMPG Peat Marwick (or any other independent Certified Public Accounting firm mutually acceptable to Seller and Purchaser), the cost of such examination to be paid fifty percent (50%) by Seller and fifty percent (50%) by Purchaser. The determination by Purchaser shall be final and binding on the parties unless Seller elects to have an examination as provided herein, in which case the results of the examination shall be made within thirty (30) days of such referral, and shall be final and binding on the parties (the "Final Closing Adjustment").
(d) To the extent the Final Closing Adjustment is less than the Closing Adjustment, Seller shall pay the difference in cash to Purchaser within five (5) days after the final determination. In the event the Final Closing Adjustment is greater than the Closing Adjustment, Purchaser shall pay such excess in cash to Seller within five (5) days after the final determination. If, following any payment pursuant to this Section 4.4(d), an error (in billing or reporting by NRTC or otherwise) is thereafter discovered which would have affected the Final Closing Adjustment, the party in whose favor the error was made shall immediately pay in cash the amount of such error to the other party.
Appears in 2 contracts
Sources: Asset Purchase Agreement (Textura Corp), Asset Purchase Agreement (Textura Corp)
Adjustment to Purchase Price. (a) The Closing Payment shall be increased by the parties' good faith estimate of the Current Assets of Seller and decreased by the parties' good faith estimate of the Current Liabilities of Seller As soon as of the Closing Date (the "Closing Adjustment")practicable, which adjustment shall be subject to final adjustment as provided for in paragraph (c) below.
(b) No but no later than sixty (60) 60 days after the Closing Date, or within three (3) days after receipt of the necessary accounting data from the NRTC Central Billing System, whichever is later, Purchaser shall make prepare and deliver to Seller a balance sheet reflecting the Current Assets and Current Liabilities of Seller as of the Closing Date Company (the "“Closing Date Balance Sheet")”) as at the close of business on the day immediately preceding the Closing Date, prepared in accordance with the Accounting Conventions on a basis consistent with GAAPthe Audited Balance Sheet. The reserve set forth on the Closing Balance Sheet for Accounts Receivable will be calculated in accordance with GAAP and the Accounting Conventions on a basis consistent with the Audited Balance Sheet at the time the Closing Balance Sheet is prepared. For purposes the avoidance of doubt, no liability for which Seller is directly responsible under this Agreement, including liabilities related to Seller’s Environmental Remediation Actions and expenses for which Seller is responsible under Section 5.12, shall appear as a liability of the Company on the Closing Balance Sheet. Purchaser shall, within ten (10) Business Days after receipt of Seller’s written request, deliver or cause to be delivered to Seller copies of all notes, work papers, compilations and additional supporting documentation as Seller may reasonably request to assist in Seller’s review of the Closing Adjustment and the Final Closing Adjustment Balance Sheet prepared by Purchaser.
(as hereinafter defined), the amount b) Upon receipt of Accounts Receivable of Seller to be included in the Closing Date Balance Sheet and all requested supporting information, provided such supporting information is requested by Seller no later than the tenth (10th) Business Day following receipt of the Closing Balance Sheet, Seller shall have a period of 30 days to audit such Closing Balance Sheet and propose any adjustments thereto. All adjustments proposed by Seller shall be set out in a written statement delivered to Purchaser and shall be incorporated into the Closing Balance Sheet and such Closing Balance Sheet shall include only Accounts Receivable become final and binding unless Purchaser objects in writing to such proposed adjustments within 15 days of Subscribers delivery by Seller to Purchaser of such proposed adjustments. If Purchaser does object in writing within 15 days to any such proposed adjustment (the proposed adjustment or adjustments to which Seller objects are referred to herein as reflected on Report 18A (Subscriber Accounts Receivable Aging By Account) of the NRTC Central Billing System Reports less “Contested Adjustments”), Seller and Purchaser shall use reasonable efforts to resolve their dispute regarding the Contested Adjustments. If a reserve of six percent (6%) for Accounts Receivable which are final resolution thereof is not collectible. In additionobtained within 10 days after Purchaser delivers to Seller Purchaser’s written objection to the Contested Adjustments, Seller and Purchaser shall promptly retain the Independent Accountants to resolve any remaining disputes concerning the Contested Adjustments to the Closing Date Balance Sheet and the Final Closing Adjustment shall not include as a Current Asset any accounts receivable arising from Leased Subscriber Equipment. Purchaser may, by providing Seller with written notice at least five (5) days prior to the Closing, elect to purchase all, or certain of, the DSS(TM) subscriber equipment owned by Seller (other than Leased Subscriber Equipment) on the Closing Date; provided, however, Purchaser shall not have the right to acquire any assets attributable to Seller's Electric Business. Any such equipment which is purchased by Purchaser shall be included as Inventory in the Closing Date Balance Sheet. Except as set forth in this Section 4.4(b)If the Independent Accountants are retained, no other assets or liabilities shall be included in the Closing Date Balance Sheet. Seller shall make available to Purchaser such documentation, back-up, invoices, and books and records of Seller as Purchaser may reasonably request.
then (ci) Seller and Purchaser shall negotiate each submit to the Independent Accountants in writing within 15 days after the Independent Accountants are retained their respective proposals with respect to the Contested Adjustments, together with such supporting documentation as they deem necessary or as the Independent Accountants request (provided that if any documentation requested by the Independent Accountants cannot be obtained within such 15-day period (acting in good faith and in a diligent manner), then such 15-day period shall be extended for such period of time as is reasonably necessary for such information to reconcile any discrepancies which may arise in connection with be obtained), (ii) the determination Independent Accountants shall select, within 30 days after receiving the proposals of the Closing Date Balance Sheet. If Seller and Purchaser are unable to reconcile such discrepanciesand all supplementary supporting documentation requested by the Independent Accountants, Seller shall have fifteen (15) days from presentment of the Closing Date Balance Sheet by Purchaser to notify Purchaser if Seller wishes to have either Seller’s or Purchaser's determination examined. If Seller elects to have Purchaser's determination examined’s proposal, it shall be submitted but not a different proposal, with respect to the determination in AtlantaContested Adjustments, Georgia, by the Certified Public Accounting firm of KMPG Peat Marwick (or any other independent Certified Public Accounting firm mutually acceptable to Seller and Purchaser), the cost of such examination to be paid fifty percent (50%) by Seller and fifty percent (50%) by Purchaser. The determination by Purchaser which selection shall be final and binding on both Seller and Purchaser, and (iii) the parties unless Seller elects to have an examination as provided herein, in which case the results fees and expenses of the examination Independent Accountants shall be made within thirty borne by the party whose proposal with respect to the Contested Adjustments is not selected.
(30c) days of such referral, and shall be At the point that the Closing Balance Sheet has become final and binding upon both Seller and Purchaser pursuant to Section 2.4(b), the amount of the Purchase Price shall be either (i) decreased by the amount (the “Deficiency Amount”) by which the Net Assets amount shown on the parties Closing Balance Sheet is less than the Net Assets amount shown on the Proforma Initial Balance Sheet or (ii) increased by the amount (the "Final “Excess Amount”) by which the Net Assets amount shown on the Closing Adjustment")Balance Sheet is greater than the Net Assets amount shown on the Proforma Initial Balance Sheet.
(d) To the extent the Final Closing Adjustment is less No later than ten (10) days after the Closing AdjustmentBalance Sheet has become final and binding upon both Seller and Purchaser pursuant to Section 2.4(b), (i) Seller shall pay the difference in cash Deficiency Amount (if any) to Purchaser within five Purchaser; or (5ii) days after the final determination. In the event the Final Closing Adjustment is greater than the Closing Adjustment, Purchaser shall pay such excess in cash the Excess Amount (if any) to Seller within five (5) days after the final determinationSeller. If, following any payment All payments pursuant to this Section 4.4(d)2.4(d) shall be made by wire transfer of immediately available funds to an account designated by Purchaser or Seller, an error (in billing or reporting by NRTC or otherwise) is thereafter discovered which would have affected the Final Closing Adjustment, the party in whose favor the error was made shall immediately pay in cash the amount of such error to the other partyas appropriate.
Appears in 1 contract
Adjustment to Purchase Price. (a) Not later than five (5) business days prior to the Closing Date, the Company shall deliver to Buyer the Base Balance Sheet (as defined in Section 2.6), together with worksheets and data that support the Base Balance Sheet and any other information that Buyer may reasonably request in order for Buyer to verify the amounts reflected on the Base Balance Sheet. The Closing Payment Base Balance Sheet shall be prepared in accordance with generally accepted United States accounting principles ("GAAP") consistently applied and otherwise consistent with the Company's past accounting methods and practices. The Company shall deliver to Buyer together with the Base Balance Sheet a calculation of the Net Worth as of June 30, 2005 based on the Base Balance Sheet and as adjusted to reflect (i) the completion of the Real Estate Transfers and the LLC Distribution (as defined in Sections 6.1(m) and (n), respectively) (including without limitation removal of the Excluded Real Estate as assets of the Company, elimination of any related mortgage debt that is paid and discharged or assumed in connection with such transactions and any additional liabilities incurred in connection with such transactions including, without limitation, any transfer or mortgage taxes or any other taxes), (ii) elimination of any accounts receivable reserve and (iii) the removal of the cash surrender value of key-man life insurance policies as assets of the Company (the "June 30 Net Worth"). If the June 30 Net Worth exceeds $28,078,028 (the "Base Net Worth"), the Purchase Price shall be increased by an amount equal to such excess. If the parties' good faith estimate of June 30 Net Worth is less than the Current Assets of Seller and Base Net Worth, the Purchase Price shall be decreased by the parties' good faith estimate difference of the Current Liabilities of Seller as of the Closing Date (the "Closing Adjustment"), which adjustment shall be subject to final adjustment as provided for in paragraph (c) belowsuch amounts.
(b) No later than Within sixty (60) days after the Closing Date, the Company will deliver to the Shareholders' Representative an audited balance sheet of the Company as of September 30, 2005 (the "Closing Balance Sheet"), together with worksheets and data that support the Closing Balance Sheet. The Closing Balance Sheet shall be prepared in accordance with GAAP and otherwise consistent with the methodology used to prepare the Base Balance Sheet. The Closing Balance Sheet shall include (i) an accrual for the aggregate amount of Taxes (including, but not limited to, any built-in gains tax) payable by the Company after the Closing as a result of the Real Estate Transfers and the LLC Distribution (as defined in Section 6.1(n)) and (ii) an accrual for any bonus payments to be paid by Buyer under Section 5.5, which accrual shall not exceed the Accrued Bonus Amount (as defined in Section 3.2(v)(i)) less the aggregate amount of such bonus payments made by the Company prior to the Closing (such differential hereinafter referred to as the "Closing Bonus Accrual"). The Company will deliver to the Shareholders' Representative together with the Closing Balance Sheet a calculation of the Net Worth as of September 30, 2005 based on the Closing Balance Sheet, without giving effect to the Closing and as adjusted to reflect (i) the elimination of any accounts receivable reserve, (ii) a reduction equal to (A) the actual Net Income for the month ended September 30, 2005, less (B) an amount equal to the Shareholder's tax liability on the income of the Company for the month ended September 30, 2005, as computed for tax purposes without taking into account any income gain or loss resulting from any of the Real Estate Transfers or LLC Distribution, and assuming that the Shareholders are subject to tax at an aggregate federal, state and local tax rate of 21%, (iii) the removal of the cash surrender value of key-man life insurance policies as assets of the Company and (iv) the inclusion of the Company's deferred tax assets in an amount equal to Three Hundred Fifty Thousand Dollars ($350,000) (the "Closing Net Worth").
(i) The Closing Balance Sheet and the Closing Net Worth shall be binding upon the Parties if (A) the Shareholders' Representative fails to object in writing within three ten (310) days after receipt of the necessary accounting data from Closing Balance Sheet or (B) the NRTC Central Billing System, whichever is later, Purchaser shall make and deliver to Seller a balance sheet reflecting the Current Assets and Current Liabilities of Seller as of Shareholders' Representative approves the Closing Date (the "Closing Date Balance Sheet"), prepared on a basis consistent with GAAP. For purposes of the Closing Adjustment and the Final Closing Adjustment (as hereinafter defined), the amount of Accounts Receivable of Seller to be included in the Closing Date Balance Sheet shall include only Accounts Receivable of Subscribers as reflected on Report 18A (Subscriber Accounts Receivable Aging By Account) of the NRTC Central Billing System Reports less a reserve of six percent (6%) for Accounts Receivable which are not collectible. In addition, the Closing Date Balance Sheet and the Final Closing Adjustment Net Worth in writing.
(ii) If the Shareholders' Representative does not agree with the Closing Balance Sheet and the calculation of the Closing Net Worth, or Buyer and the Shareholders' Representative cannot mutually agree on the same, then within twenty (20) days following receipt by the Shareholders' Representative of the Closing Balance Sheet, Buyer and the Shareholders' Representative shall not include engage PricewaterhouseCoopers LLP or such other nationally recognized independent accounting firm mutually satisfactory to Buyer and the Shareholders' Representative (the "Neutral Auditor") to resolve such dispute. The Neutral Auditor shall review the Closing Balance Sheet and the Closing Net Worth and, within ten (10) business days of its appointment (or as soon as practicable after such ten (10) business day period), shall make any adjustments necessary thereto, and, upon completion of such review, such Closing Balance Sheet and the Closing Net Worth as determined by the Neutral Auditor shall be binding upon the parties. If such a review is conducted, then the Party (i.e., Buyer, on the one hand, or the Shareholders' Representative, on the other hand) whose last proposed written offer for the settlement of the items in dispute, taken as a Current Asset any accounts receivable arising whole, was farther away from Leased Subscriber Equipment. Purchaser may, the final determination by providing Seller with written notice at least five (5) days prior the Neutral Auditor pursuant to the Closingpreceding sentence, elect to purchase all, or certain of, the DSS(TM) subscriber equipment owned by Seller (other than Leased Subscriber Equipment) on the Closing Date; provided, however, Purchaser shall not have the right to acquire any assets attributable to Seller's Electric Business. Any pay all fees and expenses associated with such equipment which is purchased by Purchaser shall be included as Inventory in the Closing Date Balance Sheet. Except as set forth in this Section 4.4(b), no other assets or liabilities shall be included in the Closing Date Balance Sheet. Seller shall make available to Purchaser such documentation, back-up, invoices, and books and records of Seller as Purchaser may reasonably requestreview.
(c) Seller and Purchaser shall negotiate in good faith to reconcile any discrepancies which may arise in connection with the Within three (3) business days following determination of the Closing Date Balance Sheet. If Seller and Purchaser are unable to reconcile such discrepanciesNet Worth in accordance with Section 1.4(b):
(i) in the event the Closing Net Worth is less than the June 30 Net Worth, Seller shall have fifteen (15) days from presentment the Shareholders' Representative, on behalf of the Closing Date Balance Sheet Shareholders, shall pay to Buyer by Purchaser wire transfer of immediately available funds, an amount equal to notify Purchaser if Seller wishes to have Purchaser's determination examined. If Seller elects to have Purchaser's determination examinedthe difference between such amounts ("Negative Net Worth Adjustment Amount"), it and the Purchase Price shall be submitted decreased by such Negative Net Worth Adjustment Amount and
(ii) in the event the Closing Net Worth is greater than the June 30 Net Worth, Buyer shall pay the Shareholders' Representative, on behalf of the Shareholders, by wire transfer of immediately available funds an amount equal to the determination in Atlanta, Georgia, by the Certified Public Accounting firm of KMPG Peat Marwick difference between such amounts (or any other independent Certified Public Accounting firm mutually acceptable to Seller and Purchaser"Positive Net Worth Adjustment Amount"), and the cost of such examination to be paid fifty percent (50%) by Seller and fifty percent (50%) by Purchaser. The determination by Purchaser Purchase Price shall be final increased by such Positive Net Worth Adjustment Amount The difference between the June 30 Net Worth and binding on the parties unless Seller elects Closing Net Worth is referred to have an examination as provided herein, in which case the results of the examination shall be made within thirty (30) days of such referral, and shall be final and binding on the parties (the "Final Closing AdjustmentNet Worth Adjustment Amount.").
(d) To the extent the Final Closing Adjustment is less than the Closing Adjustment, Seller shall pay the difference As used in cash to Purchaser within five (5) days after the final determination. In the event the Final Closing Adjustment is greater than the Closing Adjustment, Purchaser shall pay such excess in cash to Seller within five (5) days after the final determination. If, following any payment pursuant to this Section 4.4(d)1.4, an error "Net Worth" means total assets (excluding any deferred tax assets of the Company) minus total liabilities of the Company and the Subsidiary on a consolidated basis determined in billing or reporting by NRTC or otherwise) is thereafter discovered which would have affected accordance with GAAP, consistently applied, and otherwise consistent with the Final Closing Adjustment, methodology used to prepare the party in whose favor the error was made shall immediately pay in cash the amount of such error to the other partyBase Balance Sheet.
Appears in 1 contract
Adjustment to Purchase Price. (a) Within sixty (60) days following the Closing Date, Sellers shall deliver to Purchaser a schedule of the audited working capital as of the Closing Date for the Furniture Business, the Automotive Inventory and the Automotive Payables, and a schedule of the unaudited working capital as of the Closing Date of each of the Automotive Business and the Consumer Products Business, together with a reconciliation of such schedules to the balance sheet of the Chatham division (the "Closing Date Working Capital Schedules"). The Closing Payment Date working capital shown on the Closing Date Working Capital Schedules shall equal the sum of (i) inventory (net of reserves); (ii) accounts receivable (net of reserves); and (iii) prepaid expenses (but not the chenille equipment deposits), less the sum of (iv) trade payables and (v) accrued expenses. For purposes of the computation of audited Closing Date working capital, (x) inventory, accounts receivable and prepaid expenses shall include only those items and amounts included in the Acquired Assets pursuant to SECTION 1.1(d), (f) and (j) (including all related reserves), (y) trade payables and accrued expenses shall include only those items and amounts included in the Assumed Liabilities pursuant to SECTION 2.1, and (z) Automotive Inventory and Automotive Payables shall be increased set forth in separate line items. The Closing Date Working Capital Schedules shall be prepared in accordance with United States generally accepted accounting principles ("GAAP") applied consistently with the Management Prepared Statements (as hereinafter defined) following the procedures set forth on SCHEDULE 3.3(B) (except the Management Prepared Statements do not have year end adjustments), which shall include a full physical audit of all Inventory (except as the Parties may otherwise agree) on the Closing Date. Purchaser and a nationally recognized independent public accounting firm selected by Purchaser ("Purchaser's Auditor"), may observe the partiesClosing Date inventory and other procedures of Sellers and Arthur Andersen LLP, the ▇▇▇▇▇en▇▇▇▇ ▇ublic accountants to Sellers ("Sellers' good faith estimate Auditor"), in the preparation of the Current Assets Closing Date Working Capital Schedules and shall be provided with reasonable access to the workpapers of Seller Sellers and decreased Sellers' Auditor supporting the Closing Date Working Capital Schedules. The audited Closing Date Working Capital Schedule prepared by the partiesSellers' good faith estimate Auditors shall also set forth a computation of the Current Liabilities Adjustment Amount (hereinafet defined) (including separate computations of Seller the Furniture Adjustment Amount (hereinafter defined) and the Automotive Adjustment Amount (hereinafter defined)).
(b) Within sixty (60) days following the receipt by Purchaser of the Closing Date Working Capital Schedules, Purchaser's Auditor shall issue an unqualified audit report on the Closing Date Working Capital Schedule relating to the Furniture Business, the Automotive Inventory and the Automotive Payables as of the Closing Date (the "Audited Closing AdjustmentDate Working Capital Schedule"), which adjustment shall be subject to final adjustment as provided for in paragraph prepared (cx) below.
(b) No later than sixty (60) days after following the Closing Date, or within three (3) days after receipt of the necessary accounting data from the NRTC Central Billing System, whichever is later, Purchaser shall make and deliver to Seller a balance sheet reflecting the Current Assets and Current Liabilities of Seller as of the Closing Date (the "Closing Date Balance Sheet"procedures set forth on SCHEDULE 3.3(B), prepared (y) in accordance with GAAP (except as otherwise disclosed on a basis consistent with GAAP. For purposes of the Closing Adjustment SCHEDULE 3.3(B)) and the Final Closing Adjustment (as hereinafter defined), the amount of Accounts Receivable of Seller to be included z) unless otherwise noted in the Closing Date Balance Sheet shall include only Accounts Receivable of Subscribers as reflected on Report 18A (Subscriber Accounts Receivable Aging By Account) of the NRTC Central Billing System Reports less a reserve of six percent (6%) for Accounts Receivable which are not collectible. In addition, the Closing Date Balance Sheet and the Final Closing Adjustment shall not include as a Current Asset any accounts receivable arising from Leased Subscriber Equipment. Purchaser may, by providing Seller with written notice at least five (5) days prior to the Closing, elect to purchase all, or certain of, the DSS(TM) subscriber equipment owned by Seller (other than Leased Subscriber Equipment) on the Closing Date; provided, however, Purchaser shall not have the right to acquire any assets attributable to Seller's Electric Business. Any such equipment which is purchased by Purchaser shall be included as Inventory in the Closing Date Balance Sheet. Except as set forth in this Section 4.4(b), no other assets or liabilities shall be included in the Closing Date Balance Sheet. Seller shall make available to Purchaser such documentation, back-up, invoices, and books and records of Seller as Purchaser may reasonably request.
(c) Seller and Purchaser shall negotiate in good faith to reconcile any discrepancies which may arise in connection with the determination of the Closing Date Balance Sheet. If Seller and Purchaser are unable to reconcile such discrepancies, Seller shall have fifteen (15) days from presentment of the Closing Date Balance Sheet by Purchaser to notify Purchaser if Seller wishes to have Purchaser's determination examined. If Seller elects to have Purchaser's determination examined, it shall be submitted to the determination in Atlanta, Georgia, by the Certified Public Accounting firm of KMPG Peat Marwick (or any other independent Certified Public Accounting firm mutually acceptable to Seller and Purchaser), the cost of such examination to be paid fifty percent (50%) by Seller and fifty percent (50%) by Purchaser. The determination by Purchaser shall be final and binding on the parties unless Seller elects to have an examination as provided herein, in which case the results of the examination shall be made within thirty (30) days of such referral, and shall be final and binding on the parties (the "Final Closing Adjustment").
(d) To the extent the Final Closing Adjustment is less than the Closing Adjustment, Seller shall pay the difference in cash to Purchaser within five (5) days after the final determination. In the event the Final Closing Adjustment is greater than the Closing Adjustment, Purchaser shall pay such excess in cash to Seller within five (5) days after the final determination. If, following any payment pursuant to this Section 4.4(d), an error (in billing or reporting by NRTC or otherwise) is thereafter discovered which would have affected the Final Closing Adjustment, the party in whose favor the error was made shall immediately pay in cash the amount of such error to the other party.SCHEDULE 3.3
Appears in 1 contract
Adjustment to Purchase Price. As soon as practicable after the Effective Date, but in no event more than thirty (a30) The Closing Payment days thereafter, the Partnerships shall be increased provide the Buyer with a balance sheet dated June 30, 2003, and financial statements of the Partnerships consisting of balance sheets of the Partnerships and the related statements of income and cash flows for trailing twelve (12) month period, prepared in accordance with GAAP and reviewed by the parties' good faith estimate of Partnerships’ Certified Public Accountant (collectively referred to as the Current Assets of Seller and decreased by the parties' good faith estimate of the Current Liabilities of Seller “Closing Financials”). As soon as of the Closing Date (the "Closing Adjustment"), which adjustment shall be subject to final adjustment as provided for in paragraph (c) below.
(b) No later than sixty (60) days after the Closing Date, or within three (3) days practicable after receipt of the necessary accounting data from the NRTC Central Billing SystemClosing Financials, whichever is later, Purchaser shall make and deliver to Seller a balance sheet reflecting the Current Assets and Current Liabilities of Seller as of the Closing Date (the "Closing Date Balance Sheet"), prepared on a basis consistent with GAAP. For purposes of the Closing Adjustment and the Final Closing Adjustment (as hereinafter defined), the amount of Accounts Receivable of Seller to be included but in the Closing Date Balance Sheet shall include only Accounts Receivable of Subscribers as reflected on Report 18A (Subscriber Accounts Receivable Aging By Account) of the NRTC Central Billing System Reports less a reserve of six percent (6%) for Accounts Receivable which are not collectible. In addition, the Closing Date Balance Sheet and the Final Closing Adjustment shall not include as a Current Asset any accounts receivable arising from Leased Subscriber Equipment. Purchaser may, by providing Seller with written notice at least five (5) days prior to the Closing, elect to purchase all, or certain of, the DSS(TM) subscriber equipment owned by Seller (other no event more than Leased Subscriber Equipment) on the Closing Date; provided, however, Purchaser shall not have the right to acquire any assets attributable to Seller's Electric Business. Any such equipment which is purchased by Purchaser shall be included as Inventory in the Closing Date Balance Sheet. Except as set forth in this Section 4.4(b), no other assets or liabilities shall be included in the Closing Date Balance Sheet. Seller shall make available to Purchaser such documentation, back-up, invoices, and books and records of Seller as Purchaser may reasonably request.
(c) Seller and Purchaser shall negotiate in good faith to reconcile any discrepancies which may arise in connection with the determination of the Closing Date Balance Sheet. If Seller and Purchaser are unable to reconcile such discrepancies, Seller shall have fifteen (15) days from presentment thereafter, the Buyer and Outback shall determine and report in writing to all parties hereto: theamount of current assets of each Restaurant as of the Closing Effective Date Balance Sheet (excluding those current assets not utilized or received by Purchaser the Buyer, e.g. prepaid insurance); theamount of actual out of pocket expenses for restaurant sites under development (subject to notify Purchaser if Seller wishes to have Purchaser's determination examined. If Seller elects to have Purchaser's determination examinedapproval by Outback); the amountof all liabilities of each Restaurant (other than liabilities specified in Schedule 2.1(b), it shall be submitted Schedule 2.1(c) and Schedule 2.1(g) to the determination extent assumed by Buyer) which were not paid in Atlantafull prior to the Effective Date, Georgiaincluding, without limitation, an estimate of any tax liability for periods prior to the Effective Date and including liability for unredeemed gift certificates at redemption value and accrued but unused vacation, holiday and sick pay; theexcess, if any, of (i) three percent (3%) of each Restaurant’s gross sales (as defined in each Restaurant’s Franchise Agreement) over (ii) all expenditures for local advertising for such Restaurant approved by Outback pursuant to the Certified Public Accounting firm Franchise Agreement. Upon receipt of KMPG Peat Marwick (or any other independent Certified Public Accounting firm mutually acceptable to Seller and Purchaser)such report, the cost General Partners (by notice to Outback and the Buyer as provided herein) shall have a period of ten (10) days in which to object in writing to any portion or item of such examination to be paid fifty percent (50%) by Seller and fifty percent (50%) by Purchaserreport. The determination by Purchaser In the event no objection is timely made, the report shall be final and binding on all parties. If timely objection is made, the parties unless Seller elects to have an examination as provided herein, in which case chief financial officer of Outback and such persons designated by the results General Partners (and at the expense of the examination General Partners) shall be made meet and attempt to agree on the items to which objection was made. If such persons cannot agree within thirty (30) days from the date of written objection, the items on which agreement has not been reached shall be submitted to the Tampa, Florida office of PricewaterhouseCoopers (or other agreed upon independent “Big Four” accounting firm) for a resolution of such referral, items and whose decision shall be final and binding on all parties. The fees and expenses of PricewaterhouseCoopers (or other accounting firm) shall be paid by the parties nonprevailing party. If, as finally determined, the sum of items contained in Subparagraphs (a) and (b) above exceeds the "Final Closing Adjustment"sum of the items contained in Subparagraphs (c) and (d).
, above, the Buyer shall pay such excess to the Partnerships within ten (10) days of such final determination. If, as finally determined, the sum of the items contained in Subparagraphs (c) and (d) To exceeds the extent sum of items contained in Subparagraphs (a) and (b) above, Buyer may deduct the Final Closing Adjustment is less than excess from the Closing Adjustment, Seller shall pay the difference in cash to Purchaser within five (5) days after the final determinationRetained Purchase Price. In the event the Final Closing Adjustment is greater than Retained Purchase Price does not fully reimburse the Closing AdjustmentBuyer for the entire amount due hereunder, Purchaser the Partnerships shall pay such any excess in cash to Seller the Buyer within five ten (510) days after of the final determination. If, following any payment pursuant to The calculations and payments contemplated by this Section 4.4(d), an error (in billing or reporting 1.4 shall be made on a Partnership by NRTC or otherwise) is thereafter discovered which would have affected the Final Closing Adjustment, the party in whose favor the error was made shall immediately pay in cash the amount of such error to the other partyPartnership basis.
Appears in 1 contract
Adjustment to Purchase Price. (a) The Closing Payment Purchase Price for each Leased Aircraft set forth in Clause 5.1(a) and (b) above shall be increased reduced by […***…] on […***…]. With respect to the parties' good faith estimate of the Current Assets of Seller and decreased by the parties' good faith estimate of the Current Liabilities of Seller as of the Closing Date (the "Closing Adjustment")Leased Aircraft, which adjustment such amount shall be subject to final adjustment as provided for in paragraph (c) belowthe “Adjusted Purchase Price”.
(bi) No The Purchase Price for each Contracted Aircraft, set forth in Clause 5.1 (c), (d), (e), (f), (g), and (h) above has been determined […***…]. To the extent that a Contracted Aircraft on the Delivery Date […***…], the Purchase Price shall be reduced using the following rates (collectively, per Contracted Aircraft, the “[…***…] Condition Adjustment Amount”): The rates above are applicable to the year of Expected Delivery Date and will escalate if the Delivery Date occurs in a calendar year that is later than sixty (60) days after the Closing Date, or within three (3) days after receipt that of the necessary accounting data from respective Expected Delivery Dates (other than as a result of a delay attributable to Lessee or Purchaser), except for the NRTC Central Billing Systemrate associated with the engine life limited parts, whichever which shall be based on published CLP in the year of Delivery; provided that if the Delivery Date occurs in a calendar year that is later, Purchaser shall make and deliver to Seller a balance sheet reflecting the Current Assets and Current Liabilities of Seller as later than that of the Closing Expected Delivery Date (as a result of Purchaser exercising the "Closing Alternative Purchase Date Balance Sheet"option as provided in Clause 5.2(c)(i), prepared on a basis consistent with GAAP. For purposes of the Closing Adjustment and the Final Closing Adjustment below, no escalation shall apply.
(as hereinafter defined), the amount of Accounts Receivable of Seller to be included in the Closing Date Balance Sheet shall include only Accounts Receivable of Subscribers as reflected on Report 18A (Subscriber Accounts Receivable Aging By Accountii) of the NRTC Central Billing System Reports less a reserve of six percent (6%) for Accounts Receivable which are not collectible. In addition, so long as the Closing Date Balance Sheet Purchaser has not already taken delivery pursuant to the Lease Agreement (in which case, the applicable Lease Agreement shall apply), Section 86 of the applicable Lease Agreement (Exception for a Non-Conforming Engine Refurbishment) shall continue to apply at Delivery hereunder and shall further reduce the Final Closing Adjustment shall not include as a Current Asset any accounts receivable arising from Leased Subscriber Equipment. Purchaser mayPurchase Price of each Contracted Aircraft, if applicable, by providing the amount that would be payable to the Lessee in accordance with the terms of the Lease Agreement (such adjustment, the “Engine Refurbishment Adjustment”).
(iii) Furthermore, at Delivery, provided that Purchaser has not elected an Alternative Purchase Date, with respect to any Contracted Aircraft, Seller with written notice at least five may elect to allow (5in its sole discretion) days the Previous Operator to retain its current seats and install a shipset of seats provided by Purchaser prior to the ClosingEuropean Technical Acceptance (with sufficient advance notice to Purchaser by Seller of such election to ensure that Purchaser has time to provide such seats and ensure the Previous Operator’s redelivery timeline is not disrupted); provided that if the Seller elects this option, elect to purchase all, or certain ofat Delivery the Seller shall reduce the Purchase Price by […***…] per each Contracted Aircraft with Purchaser provided seats (such adjustment at Delivery, the DSS(TM“Seat Adjustment”). With respect to the Contracted Aircraft, the Purchase Price less, if applicable, (i) subscriber equipment owned by Seller the Full Life Condition Adjustment Amount, (other than Leased Subscriber Equipmentii) on the Closing Date; providedEngine Refurbishment Adjustment, howeverand (iii) the Seat Adjustment, Purchaser shall not have the right to acquire any assets attributable to Seller's Electric Business. Any such equipment which is purchased by Purchaser shall be included as Inventory in the Closing Date Balance Sheet. Except as set forth in this Section 4.4(b), no other assets or liabilities shall be included in the Closing Date Balance Sheet. Seller shall make available to Purchaser such documentation, back-up, invoices, and books and records of Seller as Purchaser may reasonably request“Adjusted Purchase Price”.
(c) Seller and Purchaser shall negotiate in good faith to reconcile any discrepancies which may arise in connection with the determination of the Closing Date Balance Sheet. If Seller and Purchaser are unable to reconcile such discrepancies, Seller shall have fifteen (15) days from presentment of the Closing Date Balance Sheet by Purchaser to notify Purchaser if Seller wishes to have Purchaser's determination examined. If Seller elects to have Purchaser's determination examined, it shall be submitted to the determination in Atlanta, Georgia, by the Certified Public Accounting firm of KMPG Peat Marwick (or any other independent Certified Public Accounting firm mutually acceptable to Seller and Purchaser), the cost of such examination to be paid fifty percent (50%) by Seller and fifty percent (50%) by Purchaser. The determination by Purchaser shall be final and binding on the parties unless Seller elects to have an examination as provided herein, in which case the results of the examination shall be made within thirty (30) days of such referral, and shall be final and binding on the parties (the "Final Closing Adjustment").[…***…]
(d) To the extent the Final Closing Adjustment is less than the Closing Adjustment, Seller shall pay the difference in cash to Purchaser within five (5) days after the final determination. In the event the Final Closing Adjustment is greater than the Closing AdjustmentAt each Delivery, Purchaser shall will pay such excess to Seller, in cash to Seller within five (5) days after the final determination. Ifcase of both the Leased Aircraft and the Contracted Aircraft, following any payment pursuant to this Section 4.4(dan amount calculated […***…] on the outstanding balance of the Adjusted Purchase Price, as calculated each month accounting for Rent received by Lessor, if any, in accordance with Clause 5.2(c)(i), an error and less the Deposit, for the period commencing (x) in billing or reporting by NRTC or otherwisethe case of the Leased Aircraft, on July 1, 2014, and (y) is thereafter discovered in the case of the Contracted Aircraft with respect to which would have affected the Final Closing AdjustmentAlternative Purchase Date option was exercised, on the Lease Delivery Date for each of such Aircraft under the relevant Lease Agreement to, but in each instance, excluding, the party in whose favor date on which the error was made shall immediately pay in cash balance of the amount of such error to the other partyNet Purchase Amount is paid hereunder.
Appears in 1 contract
Sources: Aircraft Sale & Purchase Agreement (Allegiant Travel CO)
Adjustment to Purchase Price. (a) The Closing Payment shall be (i) increased by (a) the parties' good faith estimate of the Current Assets of Seller Sellers and (b) $233.75 for each new Subscriber acquired by Sellers during the period from November 1, 1996 through the Closing Date and (ii) decreased by the parties' good faith estimate of the Current Liabilities of Seller Sellers as of the Closing Date (the "Closing Adjustment"), which adjustment shall be subject to final adjustment as provided for in paragraph (c) below. The Closing Adjustment shall not reflect any deduction for the Bad Debt Reserve, as defined below.
(b) No later than sixty ninety (6090) days after the Closing Date, or within three (3) days after receipt of the necessary accounting data from the NRTC Central Billing System, whichever is later, Purchaser Sellers shall make and deliver to Seller Purchaser a balance sheet reflecting the Current Assets and Current Liabilities of Seller Sellers as of the Closing Date (the "Closing Date Balance Sheet"), prepared on a basis consistent with GAAPthis Agreement. For purposes of the Closing Adjustment and the Final Closing Adjustment (as hereinafter defined)Adjustment, the amount of Accounts Receivable of Seller Sellers to be included in the Closing Date Balance Sheet shall include only Accounts Receivable of Subscribers as reflected on Report 18A (Subscriber Accounts Receivable Aging By by Account) of the NRTC Central Billing System Reports less a reserve of six percent (6%) for Accounts Receivable which are not collectiblecollectible as determined in accordance with GAAP (the "Bad Debt Reserve"). In addition, the Closing Date Balance Sheet and the Final Closing Adjustment shall not include as a Current Asset any accounts receivable arising from Leased Subscriber Equipment. Purchaser may, by providing Seller with written notice at least five (5) days prior to the Closing, elect to purchase all, or certain of, the DSS(TM) subscriber equipment owned leased by Seller (other than Leased Subscriber Equipment) on Sellers to any of their Customers. Sellers shall make available to Purchaser their Records so Purchaser may verify the Closing Date; provided, however, Purchaser shall not have original cost of the right to acquire any assets attributable to Seller's Electric Business. Any such equipment which is purchased by Purchaser shall be included as Inventory in the Closing Date Balance SheetInventory. Except as set forth in this Section 4.4(b4.3(b), no other assets or liabilities shall be included in the Closing Date Balance Sheet. Seller Sellers shall make available to Purchaser such documentation, back-up, invoices, and books and records of Seller Sellers as Purchaser may reasonably request.
(c) Seller Sellers and Purchaser shall negotiate in good faith to reconcile any discrepancies which may arise in connection with the determination of the Closing Date Balance Sheet. If Seller Sellers and Purchaser are unable to reconcile such discrepanciesdetermination, Seller Purchaser shall have fifteen (15) days from presentment of the Closing Date Balance Sheet by Purchaser Sellers to notify Sellers if Purchaser if Seller wishes to have Purchaser's Sellers' determination examined. If Seller Purchaser elects to have Purchaser's Sellers' determination examined, it shall be submitted to the determination in AtlantaCharlotte, GeorgiaNorth Carolina, by the Certified Public Accounting firm of KMPG Peat Marwick Arth▇▇ ▇▇▇e▇▇▇▇ & ▇o. (or any other independent Certified Public Accounting firm mutually acceptable to Seller Sellers and Purchaser), the cost of such examination to be paid fifty percent (50%) by Seller Sellers and fifty percent (50%) by Purchaser; provided the fees of such firm shall not exceed $10,000. The results of such examination shall be made available to Sellers and Purchaser. The determination by Purchaser Sellers shall be final and binding on the parties unless Seller Purchaser elects to have an examination as provided herein, in which case the results of the examination shall be made within thirty (30) days of such referral, and shall be final and binding on the parties (the "Final Closing Adjustment").
(d) To the extent the Final Closing Adjustment is less than the Closing Adjustment, Seller Electricom shall pay (i) the difference in cash to Purchaser within five (5) days after the final determination; or (ii) in the event of nonpayment, Purchaser may exercise its Right of Offset pursuant to Section 10.5 hereof. In the event the Final Closing Adjustment is greater than the Closing Adjustment, Purchaser shall pay such excess in cash to Seller Electricom within five (5) days after the final determination. If, following any payment pursuant to this Section 4.4(d4.3(d), an error (in billing or reporting by NRTC or otherwise) is thereafter discovered which would have affected the Final Closing Adjustment, the party in whose favor the error was made shall immediately pay in cash the amount of such error to the other party.
(e) The parties hereto acknowledge and agree that Sellers shall be entitled to all commissions due from USSB, Home Shopping Network, DirecTv and others for periods prior to the Closing Date (the "Commissions"). In the event Purchaser receives a check for such Commissions or a credit for such amounts, Purchaser agrees to remit to Sellers such Commissions. Notwithstanding anything contained herein to the contrary, Sellers shall not be entitled to any Commissions payable with regard to periods after the Closing Date; it being acknowledged and agreed that such Commissions are a part of the Purchased Assets to be acquired by Purchaser pursuant to this Agreement.
Appears in 1 contract
Sources: Asset Purchase Agreement (Digital Television Services of Kansas LLC)
Adjustment to Purchase Price. (a) Within sixty (60) days following the Closing Date, Sellers shall deliver to Purchaser a schedule of the audited working capital as of the Closing Date for the Furniture Business, the Automotive Inventory and the Automotive Payables, and a schedule of the unaudited working capital as of the Closing Date of each of the Automotive Business and the Consumer Products Business, together with a reconciliation of such schedules to the balance sheet of the Chatham division (the "Closing Date Working Capital Schedules"). The Closing Payment Date working capital shown on the Closing Date Working Capital Schedules shall equal the sum of (i) inventory (net of reserves); (ii) accounts receivable (net of reserves); and (iii) prepaid expenses (but not the chenille equipment deposits), less the sum of (iv) trade payables and (v) accrued expenses. For purposes of the computation of audited Closing Date working capital, (x) inventory, accounts receivable and prepaid expenses shall include only those items and amounts included in the Acquired Assets pursuant to SECTION 1.1(d), (f) and (j) (including all related reserves), (y) trade payables and accrued expenses shall include only those items and amounts included in the Assumed Liabilities pursuant to SECTION 2.1, and (z) Automotive Inventory and Automotive Payables shall be increased set forth in separate line items. The Closing Date Working Capital Schedules shall be prepared in accordance with United States generally accepted accounting principles ("GAAP") applied consistently with the Management Prepared Statements (as hereinafter defined) following the procedures set forth on SCHEDULE 3.3(b) (except the Management Prepared Statements do not have year end adjustments), which shall include a full physical audit of all Inventory (except as the Parties may otherwise agree) on the Closing Date. Purchaser and a nationally recognized independent public accounting firm selected by Purchaser ("Purchaser's Auditor"), may observe the partiesClosing Date inventory and other procedures of Sellers and Arth▇▇ ▇▇▇e▇▇▇▇ ▇▇▇, the independent public accountants to Sellers ("Sellers' good faith estimate Auditor"), in the preparation of the Current Assets Closing Date Working Capital Schedules and shall be provided with reasonable access to the workpapers of Seller Sellers and decreased Sellers' Auditor supporting the Closing Date Working Capital Schedules. The audited Closing Date Working Capital Schedule prepared by the partiesSellers' good faith estimate Auditors shall also set forth a computation of the Current Liabilities Adjustment Amount (hereinafter defined) (including separate computations of Seller the Furniture Adjustment Amount (hereinafter defined) and the Automotive Adjustment Amount (hereinafter defined)).
(b) Within sixty (60) days following the receipt by Purchaser of the Closing Date Working Capital Schedules, Purchaser's Auditor shall issue an unqualified audit report on the Closing Date Working Capital Schedule relating to the Furniture Business, the Automotive Inventory and the Automotive Payables as of the Closing Date (the "Audited Closing AdjustmentDate Working Capital Schedule"), which adjustment shall be subject to final adjustment as provided for in paragraph prepared (cx) below.
(b) No later than sixty (60) days after following the Closing Date, or within three (3) days after receipt of the necessary accounting data from the NRTC Central Billing System, whichever is later, Purchaser shall make and deliver to Seller a balance sheet reflecting the Current Assets and Current Liabilities of Seller as of the Closing Date (the "Closing Date Balance Sheet"procedures set forth on SCHEDULE 3.3(b), prepared (y) in accordance with GAAP (except as otherwise disclosed on a basis consistent with GAAP. For purposes of the Closing Adjustment SCHEDULE 3.3(b)) and the Final Closing Adjustment (as hereinafter defined), the amount of Accounts Receivable of Seller to be included z) unless otherwise noted in the Closing Date Balance Sheet shall include only Accounts Receivable of Subscribers as reflected on Report 18A (Subscriber Accounts Receivable Aging By Account) of the NRTC Central Billing System Reports less a reserve of six percent (6%) for Accounts Receivable which are not collectible. In addition, the Closing Date Balance Sheet and the Final Closing Adjustment shall not include as a Current Asset any accounts receivable arising from Leased Subscriber Equipment. Purchaser may, by providing Seller with written notice at least five (5) days prior to the Closing, elect to purchase all, or certain of, the DSS(TM) subscriber equipment owned by Seller (other than Leased Subscriber Equipment) on the Closing Date; provided, however, Purchaser shall not have the right to acquire any assets attributable to Seller's Electric Business. Any such equipment which is purchased by Purchaser shall be included as Inventory in the Closing Date Balance Sheet. Except as set forth in this Section 4.4(b), no other assets or liabilities shall be included in the Closing Date Balance Sheet. Seller shall make available to Purchaser such documentation, back-up, invoices, and books and records of Seller as Purchaser may reasonably request.
(c) Seller and Purchaser shall negotiate in good faith to reconcile any discrepancies which may arise in connection with the determination of the Closing Date Balance Sheet. If Seller and Purchaser are unable to reconcile such discrepancies, Seller shall have fifteen (15) days from presentment of the Closing Date Balance Sheet by Purchaser to notify Purchaser if Seller wishes to have Purchaser's determination examined. If Seller elects to have Purchaser's determination examined, it shall be submitted to the determination in Atlanta, Georgia, by the Certified Public Accounting firm of KMPG Peat Marwick (or any other independent Certified Public Accounting firm mutually acceptable to Seller and Purchaser), the cost of such examination to be paid fifty percent (50%) by Seller and fifty percent (50%) by Purchaser. The determination by Purchaser shall be final and binding on the parties unless Seller elects to have an examination as provided herein, in which case the results of the examination shall be made within thirty (30) days of such referral, and shall be final and binding on the parties (the "Final Closing Adjustment").
(d) To the extent the Final Closing Adjustment is less than the Closing Adjustment, Seller shall pay the difference in cash to Purchaser within five (5) days after the final determination. In the event the Final Closing Adjustment is greater than the Closing Adjustment, Purchaser shall pay such excess in cash to Seller within five (5) days after the final determination. If, following any payment pursuant to this Section 4.4(d), an error (in billing or reporting by NRTC or otherwise) is thereafter discovered which would have affected the Final Closing Adjustment, the party in whose favor the error was made shall immediately pay in cash the amount of such error to the other party.SCHEDULE 3.3
Appears in 1 contract
Adjustment to Purchase Price. (a) The Closing Payment shall be increased by the parties' good faith estimate of the Current Assets of Seller and decreased by the parties' good faith estimate of the Current Liabilities of Seller If as of the Closing Adjustment Date the Annualized Gross Revenues from the Transferred Clients is less than the aggregate Annualized Gross Revenues as determined in accordance with Section 2.6(a) (any such difference being referred to as the "Closing AdjustmentShortfall Amount"), which adjustment the Purchase Price ---------------- shall be subject reduced by the Shortfall Amount and the Purchaser shall cancel, and amend Schedule A of the Operating Agreement to reflect the cancellation of, that number of LLC Shares issued to the Sellers or their Permitted Transferees pursuant to Section 2.6 of this Agreement that, when valued at $1,000 per LLC Share, equal the Shortfall Amount; provided, however, that the Sellers or their -------- ------- Permitted Transferees may, within ten (10) Business Days after final adjustment determination of a Shortfall Amount as provided for in paragraph (c) belowSection 2.9(b), contribute to Purchaser cash in any amount up to, but not exceeding, the Shortfall Amount. If the Sellers or their Permitted Transferees so contribute cash to Purchaser, then the Shortfall Amount shall be reduced by the amount of cash contributed and the number of LLC Shares to be cancelled shall be reduced by the result of the amount of cash contributed divided by $1,000. Any Shortfall Amount shall be ---------- allocated among the Sellers in accordance with their respective contributions to it.
(b) No later than sixty Within thirty (6030) days after the Closing Adjustment Date, or within three (3) days after receipt the Purchaser shall deliver to the Sellers or, if applicable, their Permitted Transferees, the calculation of the necessary accounting data from Shortfall Amount. For the NRTC Central Billing Systempurpose of confirming the accuracy of such calculation, whichever is laterthe Sellers or their Permitted Transferees and their accountants shall have access, Purchaser shall make at all reasonable times and deliver to Seller in a balance sheet reflecting the Current Assets and Current Liabilities of Seller as manner not disruptive of the Closing Date (the "Closing Date Balance Sheet")ongoing operations of Purchaser or its Affiliates, prepared on a basis consistent with GAAP. For purposes of the Closing Adjustment and the Final Closing Adjustment (as hereinafter defined), the amount of Accounts Receivable of Seller to be included in the Closing Date Balance Sheet shall include only Accounts Receivable of Subscribers as reflected on Report 18A (Subscriber Accounts Receivable Aging By Account) of the NRTC Central Billing System Reports less a reserve of six percent (6%) for Accounts Receivable which are not collectible. In addition, the Closing Date Balance Sheet and the Final Closing Adjustment shall not include as a Current Asset any accounts receivable arising from Leased Subscriber Equipment. Purchaser may, by providing Seller with written notice at least five (5) days prior to the Closing, elect Books and Records of Purchaser relating to purchase all, such calculation. The Sellers or certain of, the DSS(TM) subscriber equipment owned by Seller (other than Leased Subscriber Equipment) on the Closing Date; provided, however, Purchaser their Permitted Transferees and their accountants shall not have the right to acquire any assets attributable to Seller's Electric Businessreview the work papers of Purchaser utilized in preparing such calculations. Any such equipment which is purchased by Purchaser shall be included as Inventory in If the Closing Date Balance Sheet. Except as set forth in this Section 4.4(b), no other assets Sellers or liabilities shall be included in the Closing Date Balance Sheet. Seller shall make available to Purchaser such documentation, back-up, invoices, and books and records of Seller as Purchaser may reasonably request.
(c) Seller and Purchaser shall negotiate in good faith to reconcile any discrepancies which may arise in connection their Permitted Transferees disagree with the determination of the Closing Date Balance Sheet. If Seller and Purchaser are unable to reconcile such discrepancies, Seller shall have fifteen (15) days from presentment of the Closing Date Balance Sheet by Purchaser to notify Purchaser if Seller wishes to have Purchaser's determination examined. If Seller elects to have Purchaser's determination examined, it shall be submitted to the determination in Atlanta, Georgia, by the Certified Public Accounting firm of KMPG Peat Marwick (or any other independent Certified Public Accounting firm mutually acceptable to Seller and Purchaser)calculations, the cost of such examination to be paid fifty percent (50%) by Seller and fifty percent (50%) by Purchaser. The determination by Sellers or their Permitted Transferees shall notify the Purchaser shall be final and binding on the parties unless Seller elects to have an examination as provided herein, in which case the results of the examination shall be made writing within thirty (30) days of such referraldelivery of the Purchaser's calculations, and the two parties shall attempt in good faith to resolve the dispute as expeditiously as possible. If the dispute cannot be resolved by the Purchaser and the Sellers or their Permitted Transferees within thirty (30) days of receipt by the Purchaser of written notice of the dispute, such dispute shall be final and binding on submitted for resolution to a firm of accountants mutually agreed by the parties parties, which firm shall not be the accountants for any of the Purchaser, Sellers, DNB, Unified or any of their Affiliates (the "Final Closing AdjustmentIndependent ----------- Accountants").
(d) To the extent the Final Closing Adjustment is less than the Closing Adjustment, Seller shall pay the difference in cash to Purchaser within five (5) days after the final determination. In the event the Final Closing Adjustment is greater than the Closing Adjustment, Purchaser shall pay such excess in cash to Seller within five (5) days after the final determination. If, following any payment pursuant to this Section 4.4(d), an error (in billing or reporting by NRTC or otherwise) is thereafter discovered which would have affected the Final Closing Adjustment, the party in whose favor the error was made shall immediately pay in cash the amount of such error to the other party.
Appears in 1 contract
Sources: Asset Contribution Agreement (Unified Financial Services Inc)
Adjustment to Purchase Price. The Purchase Price is based in part on the Stockholders’ Equity of the Business as of June 30, 2014, as shown on Schedule 4.02, attached hereto (the “Interim Balance Sheet”), as adjusted to reflect the elimination of cash, debt for borrowed money, security and other deposits, property taxes and related party transactions (the “Pro Forma Stockholder’s Equity”). The Purchase Price will be subject to adjustment should the Pro Forma Stockholder’s Equity of the Business, as reflected on the “Closing Balance Sheet” (defined below), be greater or less than the Pro Forma Stockholder’s Equity shown on the Interim Balance Sheet. Such adjustment will be equal to the dollar difference between the Pro Forma Stockholder’s Equity and the Pro Forma Stockholder’s Equity reflected on the Closing Balance Sheet and will be determined as follows:
(a) The Closing Payment shall be increased by the parties' good faith estimate of the Current Assets of Seller and decreased by the parties' good faith estimate of the Current Liabilities of Seller as of the Closing Date Within forty-five (the "Closing Adjustment"), which adjustment shall be subject to final adjustment as provided for in paragraph (c) below.
(b) No later than sixty (6045) days after the Closing Date, or within three (3) days after receipt of the necessary accounting data from the NRTC Central Billing System, whichever is later, Purchaser shall make will prepare and deliver to the Seller a balance sheet reflecting (the Current Assets and Current Liabilities “Closing Balance Sheet”) showing the Stockholder’s Equity of Seller the Business as of the close of business on the Closing Date (the "“Final Stockholder’s Equity”). The Closing Date Balance Sheet will be prepared in accordance with accounting principles generally accepted in the U.S. consistently applied using the same methodology as was used in the preparation of the Interim Balance Sheet"), prepared on a basis consistent that is, shall not reflect cash, debt for borrowed money, security and other deposits, property taxes and related party transactions.
(b) Along with GAAP. For purposes the submission of the Closing Adjustment Balance Sheet, Purchaser will deliver a statement to the Seller, which contains the amount of the change in the Purchase Price, if any, resulting from the difference between the Pro Forma Stockholder’s Equity and the Final Closing Adjustment (as hereinafter defined), the amount of Accounts Receivable of Seller to be included in the Closing Date Balance Sheet shall include only Accounts Receivable of Subscribers as reflected on Report 18A (Subscriber Accounts Receivable Aging By Account) Stockholder’s Equity of the NRTC Central Billing System Reports less a reserve Business, appropriately adjusted to reflect the elimination of six percent cash, debt for borrowed money, security and other deposits, property taxes and related party transactions (6%) for Accounts Receivable which are not collectible. In addition, the Closing Date Balance Sheet and the “Pro Forma Final Closing Adjustment shall not include as a Current Asset any accounts receivable arising from Leased Subscriber Equipment. Purchaser may, by providing Seller with written notice at least five (5) days prior to the Closing, elect to purchase all, or certain of, the DSS(TM) subscriber equipment owned by Seller (other than Leased Subscriber Equipment) on the Closing Date; provided, however, Purchaser shall not have the right to acquire any assets attributable to Seller's Electric Business. Any such equipment which is purchased by Purchaser shall be included as Inventory in the Closing Date Balance Sheet. Except as set forth in this Section 4.4(bStockholder’s Equity”), no other assets or liabilities shall be included in the Closing Date Balance Sheet. Seller shall make available to Purchaser such documentation, back-up, invoices, and books and records of Seller as Purchaser may reasonably request.
(c) Seller and Purchaser shall negotiate will then have thirty (30) days after the receipt thereof to confirm or contest in good faith to reconcile any discrepancies which may arise in connection with the determination of writing the Closing Date Balance SheetSheet and the corresponding impact on the Purchase Price. If Seller the results are confirmed and the Purchase Price is to be adjusted, a cash refund will be made to the Purchaser are unable to reconcile such discrepanciesor Seller, Seller shall have fifteen as applicable, by wire transfer within five (155) days from presentment after the date of the Closing Date Balance Sheet by Purchaser to notify Purchaser if Seller wishes to have Purchaser's determination examinedconfirmation. If Seller elects to have Purchaser's determination examined, it shall be submitted to the determination in Atlanta, Georgia, by the Certified Public Accounting firm of KMPG Peat Marwick (or any other independent Certified Public Accounting firm mutually acceptable to Seller and Purchaser)results are contested, the cost parties will agree upon the selection of such examination an accounting firm to be paid fifty percent (50%) by Seller review the work and fifty percent (50%) by Purchaser. The determination by Purchaser shall be render a final and binding on the parties unless Seller elects to have an examination as provided herein, in which case the results of the examination shall be made ruling within thirty (30) days of such referral, and shall dispute. The cost of any such audit will be final and binding on borne by the parties (the "Final Closing Adjustment").
(d) To the extent the Final Closing Adjustment is less than the Closing Adjustment, Seller shall pay the difference in cash party who fails to prevail. Any refund due to Purchaser or Seller will be made within five (5) days after the final determination. In the event the Final Closing Adjustment is greater than the Closing Adjustment, Purchaser shall pay such excess in cash to Seller within five (5) days after the final determination. If, following any payment pursuant to this Section 4.4(d), an error (in billing or reporting by NRTC or otherwise) is thereafter discovered which would have affected the Final Closing Adjustment, the party in whose favor the error was made shall immediately pay in cash the amount of such error to the other partyruling.
Appears in 1 contract
Adjustment to Purchase Price. (a) The Not later than five (5) Business Days prior to the Closing Payment shall be increased by Date, Sellers’ Representative will prepare, in accordance with the parties' terms of this Agreement, and deliver to Buyer a statement (the “Estimated Closing Statement”) setting forth a reasonable good faith calculation of an estimate of (i) the Current Assets balance sheet of Seller and decreased by the parties' good faith estimate of the Current Liabilities of Seller each Acquired Company as of the Closing Date Calculation Time and prepared in accordance with Accounting Principles (the "“Estimated Closing Adjustment"Balance Sheet”) and (ii) a calculation of (A) the Cash Balance, separately calculated for each of Strata and Glacier Resources (the “Estimated Cash Balance”), which adjustment (B) the Net Working Capital (the “Estimated Net Working Capital”), (C) the Indebtedness Amount for each of Strata, Glacier Resources and Asset Seller (the “Estimated Indebtedness Amount”), (D) the amount of Seller Transaction Expenses (the “Estimated Seller Transaction Expense Amount”), (E) the amount of [***] Transaction Expenses (the “Estimated [***] Transaction Expense Amount”) and (F) the [***] Reimbursement Amount (the “Estimated [***] Reimbursement Amount”). Sellers’ Representative shall be subject reasonably consult with ▇▇▇▇▇ regarding any comments of Buyer with respect to final adjustment as provided the Estimated Closing Statement and consider such comments in good faith; provided, that if Sellers’ Representative disagrees with any such comments, then, without prejudice to Buyer’s rights under Section 2.8 for in paragraph (c) belowpurposes of the calculation of the Final Closing Payment, the Estimated Closing Statement will control.
(b) No later than sixty Within ninety (6090) calendar days after the Closing DateClosing, or within three (3) days after receipt of the necessary accounting data from the NRTC Central Billing System, whichever is later, Purchaser Buyer shall make prepare and deliver to Seller Sellers’ Representative a statement (the “Closing Statement”) setting forth (i) a balance sheet reflecting the Current Assets and Current Liabilities of Seller each Acquired Company as of the Closing Date Calculation Time (the "“Closing Date Balance Sheet"”) and (ii) a calculation of (A) the Cash Balance, separately calculated for each of Strata and Glacier Resources (the “Closing Cash Balance”), (B) the Net Working Capital (“Closing Net Working Capital”), (C) the Indebtedness Amount for each of Strata, Glacier Resources and Asset Seller (the “Closing Indebtedness Amount”), (D) amount of Seller Transaction Expenses (“Closing Seller Transaction Expense Amount”), (E) amount of [***] Transaction Expenses (“Closing [***] Transaction Expense Amount”) and (F) the [***] Reimbursement Amount (the “Closing [***] Reimbursement Amount”). The Closing Statement shall be prepared on in accordance with the terms of this Agreement and shall contain a basis consistent with GAAP. For purposes reasonably detailed breakdown of the Closing Adjustment and calculation set forth therein, and, to the Final Closing Adjustment (as hereinafter defined), extent such calculations differ from the amount of Accounts Receivable of Seller to be included estimates contained in the Estimated Closing Date Balance Sheet shall include only Accounts Receivable of Subscribers as reflected on Report 18A (Subscriber Accounts Receivable Aging By Account) of the NRTC Central Billing System Reports less a reserve of six percent (6%) for Accounts Receivable which are not collectible. In additionStatement, the Closing Date Balance Sheet and the Final Closing Adjustment shall not include as a Current Asset any accounts receivable arising from Leased Subscriber Equipment. Purchaser may, by providing Seller with written notice at least five (5) days prior ▇▇▇▇▇’s proposed corresponding adjustments to the Closing, elect to purchase all, or certain of, the DSS(TM) subscriber equipment owned by Seller (other than Leased Subscriber Equipment) on the Estimated Closing Date; provided, however, Purchaser shall not have the right to acquire any assets attributable to Seller's Electric Business. Any such equipment which is purchased by Purchaser shall be included as Inventory in the Closing Date Balance Sheet. Except as set forth in this Section 4.4(b), no other assets or liabilities shall be included in the Closing Date Balance Sheet. Seller shall make available to Purchaser such documentation, back-up, invoices, and books and records of Seller as Purchaser may reasonably requestStatement.
(c) The quantity and value of the Inventory for purposes of the calculation of Net Working Capital shall be determined in accordance with the Inventory procedures set forth on Schedule 2.8(c) and such determination shall be final and binding on the Parties and included the Closing Statement and shall not be subject to further objection or dispute by Sellers’ Representative (or any Seller Group Member) pursuant to Section 2.8(d).
(d) If Sellers’ Representative disputes any amounts reflected on the Closing Statement as delivered by ▇▇▇▇▇, Sellers’ Representative shall so notify Buyer in writing (“Notice of Dispute”) not more than thirty (30) calendar days after the date Sellers’ Representative receives the Closing Statement, specifying in reasonable detail the points of disagreement. If Sellers’ Representative fails to deliver a Notice of Dispute within such thirty (30) day period, the Sellers shall be deemed to have accepted the Closing Statement and Purchaser all amounts set forth therein, each of which shall negotiate be final and binding on the Parties. Upon receipt of a Notice of Dispute, Buyer shall promptly consult with Sellers’ Representative with respect to such points of disagreement in good faith an effort to reconcile resolve the dispute. If any discrepancies which such dispute cannot be resolved by ▇▇▇▇▇ and Sellers’ Representative within thirty (30) calendar days after Buyer receive the Notice of Dispute (“Unresolved Disputes”), they shall, within thirty (30) calendar days thereafter, refer the Unresolved Disputes to PricewaterhouseCoopers, LLP (the “Accountant”) to finally determine the Unresolved Disputes. If the designated Accountant declines to perform the services called for hereunder, then the Accountant shall be an independent nationally recognized accounting firm in the United States to be mutually agreed upon by the Buyer and Sellers’ Representative, and absent such agreement, the Accountant shall thereupon be selected in accordance with the Commercial Rules of the American Arbitration Association, with preference being given to any independent, national accounting firm in the United States that has no material relationship with any of the Parties. Sellers’ Representative and ▇▇▇▇▇ agree to execute, if requested by the Accountant, an engagement letter in customary form. During the review by the Accountant, the Parties and their accountants will each make available to the Accountant such information, books and records and work papers, as may arise be reasonably required by the Accountant to fulfill its obligations under this Section 2.8(d). No Party shall have any ex parte communications with the Accountant concerning the determination required to be made under this Section 2.8(d). In acting under this Agreement, the Accountant shall apply the terms of this Agreement and shall rely solely on the written submissions or other information provided by or on behalf of Sellers’ Representative and Buyer and shall not undertake an independent investigation provided that the Accountant may make reasonable requests for additional information from Sellers’ Representative and Buyer. The Accountant shall act as an expert and not as an arbitrator. The fees and expenses of the determination and the Accountant incurred in connection with the determination of the Closing Date Balance Sheet. If Seller and Purchaser are unable to reconcile such discrepancies, Seller shall have fifteen (15) days from presentment of the Closing Date Balance Sheet by Purchaser to notify Purchaser if Seller wishes to have Purchaser's determination examined. If Seller elects to have Purchaser's determination examined, it Statement shall be submitted to allocated between Sellers (jointly and severally), on the determination in Atlantaone hand, Georgiaand Buyer, on the other hand, by the Certified Public Accounting firm Accountant in proportion to the extent either of KMPG Peat Marwick (or any other independent Certified Public Accounting firm mutually acceptable such Parties did not prevail on items in dispute on the Closing Statement, provided, that such fees and expenses allocated to Seller and Purchasera Party shall not include, so long as the Party complies with the procedures of this Section 2.8(d), the cost of such examination to be paid fifty percent (50%) by Seller and fifty percent (50%) by Purchaserother Party’s outside counsel or accounting fees. The Accountant shall make a determination by Purchaser shall be final and binding on the parties unless Seller elects to have an examination as provided herein, in which case the results of the examination shall be made soon as practicable within thirty (30) days (or such other time as the Buyer and Sellers’ Representative shall agree in writing) after the Accountant’s engagement. All determinations by the Accountant shall be final, conclusive and binding with respect to the Unresolved Disputes (and the Closing Statement) and the allocation of the Accountant’s fees and expenses. The Accountant shall only decide the specific items under dispute by the Parties and their decision for each disputed amount must be within the range of values assigned to each such referralitem in the Closing Statement and the Notice of Dispute, respectively. The Closing Balance Sheet, Closing Cash Balance (separately calculated for each of Strata and Glacier Resources), Closing Net Working Capital, Closing Indebtedness Amount (separately calculated for each of Strata, Glacier Resources and Asset Seller), Closing Seller Transaction Expense Amount, Closing [***] Transaction Expense Amount, and the Closing [***] Reimbursement Amount each as set forth on the Closing Statement as finally determined in accordance with the terms of this Section 2.8(d), shall be final and binding on referred to as the parties (the "“Final Closing Adjustment")Balance Sheet,” the “Final Cash Balance,” the “Final Net Working Capital,” the “Final Indebtedness Amount,” the “Final Seller Transaction Expense Amount,” the “Final [***] Transaction Expense Amount” and the “Final [***] Reimbursement Amount,” respectively.
(de) To If the extent Adjustment Amount is a positive number, Buyer shall make payment of the Final Closing Adjustment is Amount to Sellers’ Representative (for further distribution to Sellers in accordance with their Applicable Percentage of Strata, Glacier Resources and/or the Asset Seller, respectively) not more than three (3) Business Days after final determination of the Adjustment Amount by wire transfer of immediately available funds to the account designated by Sellers’ Representative not less than the Closing Adjustment, Seller shall pay the difference in cash to Purchaser within five (5) days Business Days prior to the date of such payment.
(f) If the Adjustment Amount is a negative number, Sellers shall (jointly and severally) make payment of the Adjustment Amount to Buyer not more than three (3) Business Days after final determination of the final determination. In Adjustment Amount by wire transfer of immediately available funds to the event the Final Closing Adjustment is greater account designated by Buyer not less than the Closing Adjustment, Purchaser shall pay such excess in cash to Seller within five (5) days after Business Days prior to the final determination. If, following any payment pursuant to this Section 4.4(d), an error (in billing or reporting by NRTC or otherwise) is thereafter discovered which would have affected the Final Closing Adjustment, the party in whose favor the error was made shall immediately pay in cash the amount date of such error to the other partypayment.
Appears in 1 contract
Sources: Asset and Equity Purchase Agreement (Knife River Corp)
Adjustment to Purchase Price. Horizon and the Shareholders agree that, on or before thirty (a) The Closing Payment shall be increased by the parties' good faith estimate of the Current Assets of Seller and decreased by the parties' good faith estimate of the Current Liabilities of Seller as of the Closing Date (the "Closing Adjustment"), which adjustment shall be subject to final adjustment as provided for in paragraph (c) below.
(b) No later than sixty (6030) days after the Closing Date, Horizon shall cause Acorn to prepare and submit to the Shareholders an unaudited balance sheet of Acorn as of the Closing Date prepared after and to take into account the bonuses and the distribution paid pursuant to Section 4.10 of this Agreement. Such unaudited balance sheet shall be prepared in a manner consistent with GAAP on an accrual basis. The Shareholders shall have the right to review and examine the books and records of Acorn for the purposes of verifying such unaudited balance sheet for a period of twenty (20) days after receipt of such unaudited balance sheet. To the extent that (a) the sum of the amounts of "Cash," "Cash Equivalents," and "Accounts Receivable" as reflected on such unaudited balance sheet exceeds (b) the sum of the amounts of "Accounts Payable" and "Accrued Expenses" as reflected on such unaudited balance sheet by more than $50,000, then Horizon shall and hereby promises to pay the Shareholders the amount of such excess as an adjustment to the Purchase Price; provided, however, that such payment shall be limited in amount to the amount of Cash and Cash Equivalents held by Acorn on October 31, 1997 and in no event shall Horizon be obligated to make a payment to the Shareholders under this sentence in excess of the total amount of Cash and Cash Equivalents held on such date. For the purposes of the Section 7.7, Cash and Cash Equivalents held by Acorn on October 31, 1997 for the purposes of paying employer taxes on the bonuses paid pursuant to Section 4.10, if not already paid on such date, shall be excluded from such calculation and shall not be considered to be held by Acorn on such date; provided, however, that, in such event, such tax liability shall also not be considered a liability of Acorn for the purposes of such calculation. To the extent that the calculation set forth in the preceding sentence results in an amount less than $50,000, then the Shareholders shall refund and hereby promises to pay to Horizon an amount equal to such deficiency as an adjustment to the Purchase Price. Such payment by Horizon or the Shareholders, as the case may be, shall be made within three (3) business days after the earlier of the date the Shareholders notify Horizon that the unaudited balance sheet is satisfactory and the date which is twenty (20) days after receipt of the necessary accounting data from the NRTC Central Billing System, whichever is later, Purchaser shall make and deliver to Seller a such unaudited balance sheet reflecting by the Current Assets Shareholders. For the purposes of such unaudited balance sheet, the terms "Cash," "Cash Equivalents," "Accounts Receivable," "Accounts Payable" and Current Liabilities of Seller as of "Accrued Expenses" shall have the Closing Date (meaning ascribed to such terms by GAAP. It is expressly understood that any asset included in accordance with GAAP on the Acorn October 31, 1997, Balance Sheet relating to the "Closing Date Balance SheetAdditional Assets" listed on Schedule 2.9 shall be considered an "), prepared on a basis consistent with GAAP. For Account Receivable" for the purposes of the Closing Adjustment and the Final Closing Adjustment (as hereinafter defined), the amount of Accounts Receivable of Seller to be included in the Closing Date Balance Sheet shall include only Accounts Receivable of Subscribers as reflected on Report 18A (Subscriber Accounts Receivable Aging By Account) of the NRTC Central Billing System Reports less a reserve of six percent (6%) for Accounts Receivable which are not collectible. In addition, the Closing Date Balance Sheet and the Final Closing Adjustment shall not include as a Current Asset any accounts receivable arising from Leased Subscriber Equipment. Purchaser may, by providing Seller with written notice at least five (5) days prior to the Closing, elect to purchase all, or certain of, the DSS(TM) subscriber equipment owned by Seller (other than Leased Subscriber Equipment) on the Closing Date; provided, however, Purchaser shall not have the right to acquire any assets attributable to Seller's Electric Business. Any such equipment which is purchased by Purchaser shall be included as Inventory in the Closing Date Balance Sheet. Except as set forth in calculation under this Section 4.4(b), no other assets or liabilities shall be included in the Closing Date Balance Sheet. Seller shall make available to Purchaser such documentation, back-up, invoices, and books and records of Seller as Purchaser may reasonably request7.7.
(c) Seller and Purchaser shall negotiate in good faith to reconcile any discrepancies which may arise in connection with the determination of the Closing Date Balance Sheet. If Seller and Purchaser are unable to reconcile such discrepancies, Seller shall have fifteen (15) days from presentment of the Closing Date Balance Sheet by Purchaser to notify Purchaser if Seller wishes to have Purchaser's determination examined. If Seller elects to have Purchaser's determination examined, it shall be submitted to the determination in Atlanta, Georgia, by the Certified Public Accounting firm of KMPG Peat Marwick (or any other independent Certified Public Accounting firm mutually acceptable to Seller and Purchaser), the cost of such examination to be paid fifty percent (50%) by Seller and fifty percent (50%) by Purchaser. The determination by Purchaser shall be final and binding on the parties unless Seller elects to have an examination as provided herein, in which case the results of the examination shall be made within thirty (30) days of such referral, and shall be final and binding on the parties (the "Final Closing Adjustment").
(d) To the extent the Final Closing Adjustment is less than the Closing Adjustment, Seller shall pay the difference in cash to Purchaser within five (5) days after the final determination. In the event the Final Closing Adjustment is greater than the Closing Adjustment, Purchaser shall pay such excess in cash to Seller within five (5) days after the final determination. If, following any payment pursuant to this Section 4.4(d), an error (in billing or reporting by NRTC or otherwise) is thereafter discovered which would have affected the Final Closing Adjustment, the party in whose favor the error was made shall immediately pay in cash the amount of such error to the other party.
Appears in 1 contract
Sources: Stock Purchase Agreement (Horizon Health Corp /De/)
Adjustment to Purchase Price. (a) The Closing Team shall have the right to set off against and deduct (such action being referred to as a “Setoff”) from the Deferred Payment payable to the Sellers the amount for which (i) Team is entitled to an adjustment to the Purchase Price in connection with a Net Working Capital Deficit, as provided in Section 2.6(b), (ii) Team is entitled to an adjustment to the Purchase Price in connection with an Accounts Receivable Adjustment as provided in Section 2.6(e) or (iii) the Sellers are obligated to indemnify the Acquiror Parties, as provided in Article VIII (Team’s “Right of Setoff,” with each such amount deducted constituting a “Setoff Amount”); the exercise by Team of its Right of Setoff shall not be deemed a default by Team of its obligation under this Agreement to deliver such Deferred Payment to Sellers or any portion thereof. Setoffs against the Deferred Payment shall be increased paid first from the cash in the Escrow Account, and, if no cash remains in the Escrow Account, against the Escrowed Shares in the Escrow Account. The number of Escrowed Shares to be deducted and distributed from the Escrow Account for a Setoff shall be determined by dividing the Setoff Amount by the parties' Valuation Price per share.
(b) In the event that Closing Date Working Capital is less than Interim Working Capital (the amount of such deficit being referred to as the “Net Working Capital Deficit”), then the gross Purchase Price, as provided in Section 2.3 of this Agreement, shall be retroactively reduced dollar-for-dollar by the amount of such Net Working Capital Deficit, and the Sellers agree that such Net Working Capital Deficit shall be paid from the Escrow Account under Team’s Right of Setoff by means of Team’s Claim to the Escrow Agent under Section 2.6(f) below, subject to Sellers’ right to object as provided in Section 2.6(f) below. Any Net Working Capital Deficit shall be increased dollar-for-dollar by the amount of Unassumed Liabilities, if any, appearing on the Final Closing Date Balance Sheet; provided that such Unassumed Liabilities were not previously included in the Interim Net Working Capital Deficit calculation in Section 2.3(c)(ii), and such Unassumed Liabilities shall be paid by Team and Buyer.
(c) In the event that Closing Date Working Capital is greater than Interim Working Capital (the amount of such surplus being referred to as the “Net Working Capital Surplus”), then the gross Purchase Price, as provided in Section 2.3 of this Agreement, shall be retroactively increased dollar-for-dollar by the amount of the Net Working Capital Surplus, and Team shall pay to the Sellers the amount of such difference in cash within five (5) business days after delivery of the Final Closing Date Balance Sheet. Any Net Working Capital Surplus shall be reduced dollar-for-dollar by the amount of Unassumed Liabilities, if any, appearing on the Final Closing Date Balance Sheet; provided that such Unassumed Liabilities were not previously included in the Interim Net Working Capital Surplus calculation in Section 2.3(c)(i), and such Unassumed Liabilities shall be paid by Team and Buyer.
(d) The adjustment to the Purchase Price described in this Section 2.6 shall be borne by the Sellers or payable to the Sellers, as the case may be, in proportion to their respective holdings of Company Shares as set forth in Schedule 4.22.
(e) The Purchase Price will be further adjusted for certain uncollectible Accounts Receivable. Following Closing, Team agrees to use commercially reasonable best efforts to collect all Accounts Receivable of the Company as of the Closing Date on a basis substantially consistent with Team’s credit and collection policies and practices; provided, however, that to the extent such policies and practices would result in litigation to collect past due receivables, litigation may be threatened but need not be initiated. If any of the Accounts Receivable of the Company reflected on the Final Closing Date Balance Sheet or any of the notes receivable of its employees remain outstanding more than 120 days after the Closing Date, Team may elect to cause the Company to assign all or any of such Accounts Receivable and notes receivable to the Sellers and the Purchase Price shall be retroactively reduced dollar-for-dollar by the amount equal to the face value of such Accounts Receivables and notes receivable (“Accounts Receivable Adjustment”); provided, however, that the aggregate amount of any Accounts Receivable Adjustment shall be reduced by an amount equal to the reserve for bad debt set forth on the Final Closing Date Balance Sheet. The Company will deliver to the Sellers a schedule identifying such Accounts Receivable and notes receivable. The Sellers agree that such Accounts Receivable Adjustment shall be paid from the Escrow Account under Team’s Right of Setoff by means of Team’s Claim to the Escrow Agent under Section 2.6(f) below, subject to the Sellers’ right to object as provided in Section 2.6(f) below.
(f) As long as the Escrow Amount is held by the Escrow Agent, Team may exercise its Right of Setoff as follows: (i) Team shall deliver to the Shareholder Representative a notice of setoff stating the asserted Setoff Amount (and the current Valuation Price) and specifying the basis for the claim giving rise to such Right of Setoff, including a written declaration of the Adverse Consequences incurred (or a statement of Team’s reasonable estimate of Adverse Consequences to be incurred, which statement shall derive from an actual asserted or threatened claim or the discovery by Team of facts and circumstances which could reasonably lead to an actual or threatened claim for Adverse Consequences) or, in the case of a Net Working Capital Deficit or Accounts Receivable Adjustment, the amount of the same (any of such events being referred to as a “Claim”), with a copy being contemporaneously delivered to the Escrow Agent; (ii) the Shareholder Representative shall have twenty (20) days following receipt of a Claim to deliver to Team a written objection to such Claim (a “Denial”), with a copy being contemporaneously delivered to the Escrow Agent, and Team will make the work papers and back-up materials used in preparing such Claim, and the books and records of the Company, available to the Shareholder Representative and his accountants and other representatives at reasonable times and upon reasonable notice (in no event less than two business days) at any time during such twenty (20) day period; (iii) if no Denial is timely interposed by the Shareholder Representative, the Setoff Amount shall be deemed agreed upon and the Escrow Agent shall deduct from the Escrow Amount and deliver to Team the Setoff Amount asserted in the Claim; (iv) if a Denial is timely delivered to the Escrow Agent by the Shareholder Representative, Team and the Shareholder Representative shall negotiate in good faith estimate during the fifteen (15) days following Team’s receipt of the Current Assets of Seller Denial to resolve any disagreement over the Claim, and decreased if Team and the Shareholder Representative resolve such disagreement they shall, if applicable, jointly execute and deliver to the Escrow Agent a directive (“Release Letter”) instructing the Escrow Agent to deduct from the Escrow Amount and deliver to Team the amount agreed to by Team and the Shareholder Representative; and (v) if a Denial is timely delivered to the Escrow Agent by the parties' good faith estimate Shareholder Representative and the Claim cannot be resolved by Team and the Shareholder Representative within that fifteen (15) day period, such Claim shall be resolved by arbitration pursuant to Section 10.17 hereof, and any amounts awarded to Team as a result of such arbitration shall constitute the Setoff Amount which shall be put forth in a Release Letter which Team and the Shareholder Representative shall execute and deliver to the Escrow Agent.
(g) The Parties agree that, upon the first business day after the expiration of 180 days after the Closing Date, Team and the Shareholder Representative shall jointly instruct the Escrow Agent to deliver to the Sellers (allocated in proportion to their respective holdings of Company Shares as set forth in Schedule 4.22) any cash remaining in the Escrow Account.
(h) Subject to the limitations set forth in Section 2.6(l) below, the Parties agree that the Escrow Agent shall hold all of the Current Liabilities of Seller as Escrowed Shares in the Escrow Account until the first business day after the first annual anniversary of the Closing Date (the "Closing Adjustment"“First Valuation Date”). From and after such date, which adjustment the Parties agree that the Escrow Agent shall continue to hold the number of Escrowed Shares having an aggregate fair market value on the First Valuation Date of $1,500,000.00 (determined by dividing $1,500,000.00 by the Valuation Price per share); the number of Escrowed Shares in the Escrow Account in excess of such amount shall be subject released to final adjustment as provided for Sellers. The number of Escrowed Shares then remaining in paragraph (c) below.
(b) No later than sixty (60) days the Escrow Account shall continue to be held by the Escrow Agent until the first business day after the Closing Date, or within three (3) days after receipt of the necessary accounting data from the NRTC Central Billing System, whichever is later, Purchaser shall make and deliver to Seller a balance sheet reflecting the Current Assets and Current Liabilities of Seller as second annual anniversary of the Closing Date (the "Closing “Second Valuation Date”). From and after such date, the Parties agree that the Escrow Agent shall continue to hold the number of Escrowed Shares having an aggregate fair market value on the Second Valuation Date Balance Sheet"of $1,000,000.00 (determined by dividing $1,000,000.00 by the Valuation Price per share), prepared on a basis consistent with GAAP; the number of Escrowed Shares in the Escrow Account in excess of such amount shall be released to Sellers. For purposes The then remaining Escrowed Shares held in the Escrow Account shall continue to be held by the Escrow Agent until the first business day after the third annual anniversary of the Closing Adjustment Date; on such date, the Parties agree that the Escrow Agent shall release to Sellers all remaining Escrowed Shares held in the Escrow Account. The number of Escrowed Shares to be held by the Escrow Agent, as described in this Section 2.6(h), shall be subject to increase in each case by any asserted and pending Claims as described in Section 2.6(l). All disbursements to the Sellers under this paragraph shall be allocated among them in proportion to their respective holdings of Company Shares as set forth in Schedule 4.22. Team and the Final Closing Adjustment Shareholder Representative agree to jointly instruct the Escrow Agent to disburse the Escrowed Shares in accordance with the provisions of this Section 2.6(h).
(as hereinafter defined), i) The Parties agree that the amount detailed requirements and conditions set forth in this Agreement pertaining to the Escrow Amount and the rights and obligations of Accounts Receivable of Seller Team and the Sellers with regard to be included Claims and disbursements from the Escrow Amount shall continue to apply even though the said requirements and conditions are not incorporated in the Escrow Agreement.
(j) Following final disbursement of the cash portion of the Deferred Payment in accordance with the provisions of this Section 2.6, Team and Buyer shall make no further claims for adjustments to the Purchase Price in respect of matters set forth on the Final Closing Date Balance Sheet shall include only or in respect of any Accounts Receivable of Subscribers as not assigned to Sellers pursuant to Section 2.6(e) or reflected on Report 18A (Subscriber Accounts Receivable Aging By Account) in the Financial Statements. As of the NRTC Central Billing System Reports less a reserve first business day after the third annual anniversary of six percent the Closing Date, Team and the Buyer shall make no new claims and shall have no further right to recovery against the Sellers and the Escrowed Shares for any new Claim, Adverse Consequences or Setoff, including Adverse Consequences arising in connection with the Breach by the Sellers of the representations, warranties, covenants and agreements contained in this Agreement or any certificate delivered by the Company or any Seller in connection with the Closing.
(6%k) The right to recovery for Accounts Receivable any Claim, Adverse Consequence or Setoff by Team or the Buyer shall be solely limited to the number of Escrowed Shares held in the Escrow Account pursuant to Section 2.6(h) (the “Minimum Required Escrow Amount”) at the time the Claim, Adverse Consequence or Setoff is made, except for any Claim, Adverse Consequence or Setoff arising from the Chicago Litigation or as otherwise provided in Section 8.6. The right to recovery for any Claim, Adverse Consequence or Setoff by Team or Buyer arising from the Chicago Litigation shall be limited to the amount that is the lesser of (i) the amount by which are not collectible. In additionsuch Claim, Adverse Consequence or Setoff exceeds the limits of insurance coverage held by the Company on the Closing Date Balance Sheet or (ii) the Purchase Price.
(i) No disbursements of Escrowed Shares shall be made during the pendency of any Claim or the existence of Adverse Consequences if the aggregate amount of the Claim or the Adverse Consequences exceeds the Minimum Required Escrow Amount. If the amount of the Claim or the Adverse Consequence is not specified, Team and the Final Closing Adjustment Shareholder Representative agree to review the facts and circumstances giving rise to such Claim or Adverse Consequence and endeavor to mutually agree on an appropriate amount for such Claim or Adverse Consequence. If Team and the Shareholder Representative are unable to reach agreement, an appropriate amount for such Claim or Adverse Consequence shall not include as be determined by arbitration in accordance with the provisions of Section 10.17. Once such Claim or Adverse Consequence is resolved and the amount of such Claim or Adverse Consequence has been paid in full by Team or the Buyer, then Team and Buyer shall be entitled to a Current Asset Setoff in such amount and any accounts receivable arising from Leased Subscriber Equipment. Purchaser may, by providing Seller with written notice at least five (5) days prior remaining Escrowed Shares shall be released to the ClosingSellers.
(ii) If the Minimum Required Escrow Amount is not sufficient to satisfy the aggregate amount of any Claims to which the Sellers’ have exercised their right of objection as provided in Section 2.6(f), elect then the number of Escrowed Shares necessary to purchase allpotentially satisfy such Claim shall be withheld from the disbursement required under Section 2.6(h) until the objection is resolved.
(iii) Notwithstanding any of the foregoing provisions of this Section 2.6, or certain of, in no event shall any disbursements of Escrowed Shares be made to the DSS(TM) subscriber equipment owned Sellers from the Escrow Account unless the Chicago Litigation has been finally adjudicated with respect to the Company within the limits of insurance coverage held by Seller (other than Leased Subscriber Equipment) the Company on the Closing Date; provided, however, Purchaser shall not have the right to acquire any assets attributable to Seller's Electric Business. Any such equipment which is purchased by Purchaser shall be included as Inventory in the Closing Date Balance Sheet. Except as set forth in this Section 4.4(b), no other assets or liabilities shall be included in the Closing Date Balance Sheet. Seller shall make available to Purchaser such documentation, back-up, invoices, and books and records of Seller as Purchaser may reasonably request.
(c) Seller and Purchaser shall negotiate in good faith to reconcile any discrepancies which may arise in connection with the determination of the Closing Date Balance Sheet. If Seller and Purchaser are unable to reconcile such discrepancies, Seller shall have fifteen (15) days from presentment of the Closing Date Balance Sheet by Purchaser to notify Purchaser if Seller wishes to have Purchaser's determination examined. If Seller elects to have Purchaser's determination examined, it shall be submitted to the determination in Atlanta, Georgia, by the Certified Public Accounting firm of KMPG Peat Marwick (or any other independent Certified Public Accounting firm mutually acceptable to Seller and Purchaser), the cost of such examination to be paid fifty percent (50%) by Seller and fifty percent (50%) by Purchaser. The determination by Purchaser shall be final and binding on the parties unless Seller elects to have an examination as provided herein, in which case the results of the examination shall be made within thirty (30) days of such referral, and shall be final and binding on the parties (the "Final Closing Adjustment").
(d) To the extent the Final Closing Adjustment is less than the Closing Adjustment, Seller shall pay the difference in cash to Purchaser within five (5) days after the final determination. In the event the Final Closing Adjustment is greater than the Closing Adjustment, Purchaser shall pay such excess in cash to Seller within five (5) days after the final determination. If, following any payment pursuant to this Section 4.4(d), an error (in billing or reporting by NRTC or otherwise) is thereafter discovered which would have affected the Final Closing Adjustment, the party in whose favor the error was made shall immediately pay in cash the amount of such error to the other party.
Appears in 1 contract
Sources: Stock Purchase Agreement (Team Inc)
Adjustment to Purchase Price. (a) The Within 60 days following the Closing Payment Date, Seller shall, at its expense, prepare, or cause to be prepared, and deliver to Acquiror a statement (the "Closing Statement"), which shall be increased by set forth in reasonable detail the parties' good faith estimate amount of the Current Assets of Seller Working Capital and decreased by the parties' good faith estimate of the Current Liabilities of Seller Cash Equivalents as of the Closing Date (Date. The line items included in the "Closing Adjustment"), which adjustment Statement shall be subject to final adjustment as provided for in paragraph (c) below.
(b) No later than sixty (60) days after the Closing Date, or within three (3) days after receipt of the necessary accounting data from the NRTC Central Billing System, whichever is later, Purchaser shall make and deliver to Seller a balance sheet reflecting the Current Assets and Current Liabilities of Seller as of the Closing Date (the "Closing Date Balance Sheet"), prepared on a basis consistent with GAAP. For purposes the line items contained in the Statement of Assets and Liabilities of the Closing Adjustment and the Final Closing Adjustment (Snapple Business as hereinafter defined)of December 31, the amount of Accounts Receivable of Seller to be 1996 included in the Closing Date Balance Sheet shall include only Accounts Receivable of Subscribers as reflected on Report 18A (Subscriber Accounts Receivable Aging By Account) of the NRTC Central Billing System Reports less a reserve of six percent (6%) for Accounts Receivable which are not collectible. In addition, the Closing Date Balance Sheet and the Final Closing Adjustment shall not include as a Current Asset any accounts receivable arising from Leased Subscriber Equipment. Purchaser may, by providing Seller with written notice at least five (5) days prior to the Closing, elect to purchase all, or certain of, the DSS(TM) subscriber equipment owned by Seller (other than Leased Subscriber Equipment) on the Closing DateFinancial Statements; provided, however, Purchaser shall not have that the right trade accounts payable reflected on the Closing Statement shall, to acquire any assets the extent reasonably practicable, reflect the trade accounts payable directly attributable to Sellerthe Snapple Business, consistent with past practice.
(b) Acquiror shall have 30 days to review the Closing Statement and to inform Seller in writing of its disagreement (the "Objection") with the Closing Statement, if any. If Seller does not receive Acquiror's Electric Business. Any Objection within such equipment which is purchased by Purchaser shall be included as Inventory 30-day period, the amount of Working Capital and Cash Equivalents set forth in the Closing Statement delivered pursuant to Section 2.6(a) shall be deemed to have been accepted by Acquiror and shall become binding upon Acquiror. If Acquiror does deliver Acquiror's Objection to Seller, Seller shall then have 30 days to review and respond to Acquiror's Objection. If Seller and Acquiror are unable to resolve all of their disagreements with respect to the determination of Working Capital and Cash Equivalents as of the Closing Date Balance Sheetwithin 10 days following the completion of Seller's review of Acquiror's Objection, they may refer, at the option of either party, their differences to an internationally recognized firm of independent public accountants selected jointly by Seller and Acquiror, who shall, acting as experts and not as arbitrators, determine only with respect to the differences so submitted, whether and to what extent, if any, the amount of Working Capital and Cash Equivalents set forth in the Closing Statement requires adjustment. Except If Seller and Acquiror are unable to so select the independent public accountants within five days of either party requesting such referral, either Acquiror or Seller may thereafter request that the American Arbitration Association make such selection (the firm selected by Seller and Acquiror or by the American Arbitration Association is referred to as the "CPA Firm"). Seller and Acquiror shall direct the CPA Firm to use its best efforts to render its determination within 30 days. The CPA Firm's determination shall be conclusive and binding upon Seller and Acquiror. The fees and disbursements of the CPA Firm shall be shared equally by Seller and Acquiror. Seller and Acquiror shall make readily available to the CPA Firm all relevant books and records relating to the Closing Statement and all other items reasonably requested by the CPA Firm.
(c) If the sum of the amount of Working Capital and Cash Equivalents as of the Closing Date determined in accordance with the procedures set forth in this Section 4.4(b2.6 (the "Final Amount") is less than the sum of the amount of Working Capital and Cash Equivalents set forth in the Estimated Statement (the "Estimated Amount"), no other assets or liabilities shall be included in the Closing Date Balance Sheet. Seller shall make available to Purchaser such documentationshall, back-up, invoices, and books and records of Seller as Purchaser may reasonably request.
(c) Seller and Purchaser shall negotiate in good faith to reconcile any discrepancies which may arise in connection with within 10 days following the determination of the Closing Date Balance Sheet. If Seller Final Amount, pay to Acquiror an amount in cash equal to such difference, and Purchaser are unable to reconcile if the Final Amount is greater than the Estimated Amount, Acquiror shall, within such discrepancies10 days, Seller shall have fifteen (15) days from presentment of the Closing Date Balance Sheet by Purchaser to notify Purchaser if Seller wishes to have Purchaser's determination examined. If Seller elects to have Purchaser's determination examined, it shall be submitted to the determination in Atlanta, Georgia, by the Certified Public Accounting firm of KMPG Peat Marwick (or any other independent Certified Public Accounting firm mutually acceptable pay to Seller and Purchaser), the cost of an amount in cash equal to such examination to be paid fifty percent (50%) by Seller and fifty percent (50%) by Purchaser. The determination by Purchaser shall be final and binding on the parties unless Seller elects to have an examination as provided herein, in which case the results of the examination shall be made within thirty (30) days of such referral, and shall be final and binding on the parties (the "Final Closing Adjustment")difference.
(d) To The amount payable by Seller to Acquiror or from Acquiror to Seller, as the extent case may be, under this Section 2.6 shall bear interest at the Final Closing Adjustment is less than Agreed Rate as in effect from time to time, computed from the Closing Adjustment, Seller shall pay Date to the difference in cash to Purchaser within five (5) days after the final determination. In the event the Final Closing Adjustment is greater than the Closing Adjustment, Purchaser shall pay such excess in cash to Seller within five (5) days after the final determination. If, following any date of payment pursuant to this Section 4.4(d), an error (in billing or reporting by NRTC or otherwise) is thereafter discovered which would have affected the Final Closing Adjustment, the party in whose favor the error was made shall immediately pay in cash the amount of such error amount and shall be wire transferred to an account designated by Acquiror or Seller, as the other partycase may be.
Appears in 1 contract
Adjustment to Purchase Price. (a) The Closing Payment shall Initial Purchase Price will be increased by increased, if at all, as provided in this Section. If the parties' good faith estimate average of the Current Assets of Seller and decreased by closing bid price for the parties' good faith estimate of Purchaser's Common Stock for the Current Liabilities of Seller as of the Closing Date Adjustment Period (the "Closing AdjustmentOpening Price"), which adjustment shall be subject to final adjustment as provided for in paragraph (c) below.
(b) No later is less than sixty (60) days after the Closing Date, or within three (3) days after receipt of the necessary accounting data from the NRTC Central Billing System, whichever is later$3.00 per share, Purchaser shall make and deliver will issue to Seller a balance sheet reflecting the Current Assets and Current Liabilities additional shares of Seller as of the Closing Date its Common Stock (the "Closing Date Balance SheetAdditional Shares")) so that the total number of shares received by the Seller on account of this Agreement, prepared including Common Stock delivered on a basis consistent with GAAPaccount of the Initial Purchase Price, when valued at the Opening Price shall have an aggregate nominal value of $3,000,000. If the Opening Price is $3.00 or over per share, no additional shares shall be issued. For purposes of determining the Closing Adjustment Opening Price, purchases of Common Stock by the Purchaser or its Affiliates or persons controlled by the Purchaser or its Affiliates shall be disregarded. The Initial Purchase Price, as adjusted, if at all, in accordance with this Section, shall be referred to as the "Purchase Price" and the Final Closing Common Stock representing the Purchase Price shall be referred to as the "Shares." The term (i) "Affiliate" refers to the term "affiliate" as defined in the rules and regulations promulgated under the Securities Act of 1933, as amended (the "Securities Act") and (ii) "Adjustment (as hereinafter defined)Period" refers to the five business day period immediately following the Closing; provided however, that if trades have not been executed on at least three of those five days, the amount of Accounts Receivable Adjustment Period shall be extended until the Common Stock shall have been traded on at least three days, and the average closing bid price for those three trading days shall be the Opening Price. Except as contemplated by this Agreement or the Merger Agreement, the Company shall not authorize or implement any recapitalization, including, without limitation, any stock split or reverse stock split, or take any other action that would impair the rights of Seller to be included in the Closing Date Balance Sheet shall include only Accounts Receivable of Subscribers as reflected on Report 18A (Subscriber Accounts Receivable Aging By Account) of the NRTC Central Billing System Reports less a reserve of six percent (6%) for Accounts Receivable which are not collectible. In addition, the Closing Date Balance Sheet and the Final Closing Adjustment shall not include as a Current Asset any accounts receivable arising from Leased Subscriber Equipment. Purchaser may, by providing Seller with written notice at least five (5) days prior to the Closing, elect to purchase all, or certain of, the DSS(TM) subscriber equipment owned by Seller (other than Leased Subscriber Equipment) on the Closing Date; provided, however, Purchaser shall not have the right to acquire any assets attributable to Seller's Electric Business. Any such equipment which is purchased by Purchaser shall be included as Inventory in the Closing Date Balance Sheetunder this Section. Except as set forth in this Section 4.4(b)Agreement, no other assets representation or liabilities shall be included in warranty is made that a market for the Common Stock will exist either upon Closing Date Balance Sheet. Seller shall make available to Purchaser such documentation, back-up, invoicesor thereafter, and books and records of Seller as Purchaser may reasonably requestassumes the risk that no such market for the Common Stock is guaranteed.
(c) Seller and Purchaser shall negotiate in good faith to reconcile any discrepancies which may arise in connection with the determination of the Closing Date Balance Sheet. If Seller and Purchaser are unable to reconcile such discrepancies, Seller shall have fifteen (15) days from presentment of the Closing Date Balance Sheet by Purchaser to notify Purchaser if Seller wishes to have Purchaser's determination examined. If Seller elects to have Purchaser's determination examined, it shall be submitted to the determination in Atlanta, Georgia, by the Certified Public Accounting firm of KMPG Peat Marwick (or any other independent Certified Public Accounting firm mutually acceptable to Seller and Purchaser), the cost of such examination to be paid fifty percent (50%) by Seller and fifty percent (50%) by Purchaser. The determination by Purchaser shall be final and binding on the parties unless Seller elects to have an examination as provided herein, in which case the results of the examination shall be made within thirty (30) days of such referral, and shall be final and binding on the parties (the "Final Closing Adjustment").
(d) To the extent the Final Closing Adjustment is less than the Closing Adjustment, Seller shall pay the difference in cash to Purchaser within five (5) days after the final determination. In the event the Final Closing Adjustment is greater than the Closing Adjustment, Purchaser shall pay such excess in cash to Seller within five (5) days after the final determination. If, following any payment pursuant to this Section 4.4(d), an error (in billing or reporting by NRTC or otherwise) is thereafter discovered which would have affected the Final Closing Adjustment, the party in whose favor the error was made shall immediately pay in cash the amount of such error to the other party.
Appears in 1 contract
Sources: Asset Purchase Agreement (Third Enterprise Service Group Inc)
Adjustment to Purchase Price. (a) The Closing Payment Purchase Price shall be increased subject to adjustment pursuant to this Section 2.2, with such adjustment being referred to as the “Closing Net Working Capital Adjustment.” The Closing Net Working Capital Adjustment shall be the positive or negative amount by which the parties' Closing Net Working Capital (as defined below) differs from One Dollar ($1.00) (the “Target Closing Net Working Capital”), provided, however, no adjustment shall be made unless such difference is more than Twenty-Five Thousand Dollars ($25,000). If the Closing Net Working Capital exceeds the Target Closing Net Working Capital, then the Closing Net Working Capital Adjustment shall be positive; and if the Closing Net Working Capital is less than the Target Closing Net Working Capital, then the Closing Net Working Capital Adjustment shall be negative. Seller shall estimate in good faith estimate the Closing Net Working Capital, as of the Current Assets of Seller Closing, and decreased by the parties' good faith estimate deliver such estimate, together with an unaudited balance sheet of the Current Liabilities Company as of the Closing Date (prepared in a manner consistent with and using all of the same accounting principles, practices, methodologies and policies used in the preparation of the “Unaudited 2006 Statements” (defined below) and the example set forth on Schedule 2.2(a) (the “Accounting Principles”)) to Buyer no later than two (2) Business Days before the Closing Date. If the difference between such estimate and the Target Closing Net Working Capital is more than Twenty-Five Thousand Dollars ($25,000), then the full amount of such difference shall be added to or deducted from, as the case may be, the Closing Funds. Any such adjustment is referred to herein as the “Estimated Net Working Capital Adjustment.” The Closing Net Working Capital shall be finally determined in accordance with Section 2.2(b) and (e).
(b) Promptly after the Closing, Seller shall cause to be prepared a balance sheet of the Company as of the Closing Date (the "“Closing Adjustment"Date Balance Sheet”), which adjustment . The Closing Date Balance Sheet shall be subject prepared in accordance with the Accounting Principles. The Parties acknowledge that the sole purpose for determining Closing Net Working Capital is to final adjustment adjust the Purchase Price so as provided for in paragraph (c) below.
(b) No later than sixty (60) days after to reflect the Closing Datedifference, or within three (3) days after receipt if any, between the actual net working capital of the necessary accounting data from the NRTC Central Billing System, whichever is later, Purchaser shall make and deliver to Seller a balance sheet reflecting the Current Assets and Current Liabilities of Seller Company as of the Closing Date (and the "Target Closing Date Balance Sheet"), prepared on a basis consistent with GAAPNet Working Capital. For purposes of this Agreement, “Closing Net Working Capital” shall mean the Closing Adjustment Company’s current assets minus current liabilities, calculated in a manner consistent with and the Final Closing Adjustment (as hereinafter defined), the amount of Accounts Receivable of Seller to be included in the Closing Date Balance Sheet shall include only Accounts Receivable of Subscribers as reflected on Report 18A (Subscriber Accounts Receivable Aging By Account) using all of the NRTC Central Billing System Reports less a reserve Accounting Principles, as of six percent (6%) for Accounts Receivable which are not collectiblethe Effective Time. In addition, the Closing Date Balance Sheet and the Final Closing Adjustment shall not include as a Current Asset any accounts receivable arising from Leased Subscriber Equipment. Purchaser may, by providing Seller with written notice at least five (5) days prior to the Closing, elect to purchase all, or certain of, the DSS(TM) subscriber equipment owned by Seller (other than Leased Subscriber Equipment) on On the Closing Date; provided, howeverthe Company shall have a cash balance of at least One Hundred Thousand Dollars ($100,000). Subject to the requirements of the previous sentence, Purchaser shall not have the right to acquire any assets attributable to Seller's Electric Business. Any such equipment which is purchased by Purchaser shall be included as Inventory in the Closing Date Balance Sheet. Except as set forth nothing contained in this Section 4.4(b)Agreement, no other assets or liabilities including the provisions of Article 2 and Article 5, shall be included in the Closing Date Balance Sheet. Seller shall make available prohibit Company from distributing cash on hand from time to Purchaser such documentation, back-up, invoices, time from and books and records of Seller as Purchaser may reasonably request.
(c) Seller and Purchaser shall negotiate in good faith to reconcile any discrepancies which may arise in connection with the determination of the Closing Date Balance Sheet. If Seller and Purchaser are unable to reconcile such discrepancies, Seller shall have fifteen (15) days from presentment of the Closing Date Balance Sheet by Purchaser to notify Purchaser if Seller wishes to have Purchaser's determination examined. If Seller elects to have Purchaser's determination examined, it shall be submitted to the determination in Atlanta, Georgia, by the Certified Public Accounting firm of KMPG Peat Marwick (or any other independent Certified Public Accounting firm mutually acceptable to Seller and Purchaser), the cost of such examination to be paid fifty percent (50%) by Seller and fifty percent (50%) by Purchaser. The determination by Purchaser shall be final and binding on the parties unless Seller elects to have an examination as provided herein, in which case the results of the examination shall be made within thirty (30) days of such referral, and shall be final and binding on the parties (the "Final Closing Adjustment").
(d) To the extent the Final Closing Adjustment is less than the Closing Adjustment, Seller shall pay the difference in cash to Purchaser within five (5) days after the final determination. In the event the Final Closing Adjustment is greater than the Closing Adjustment, Purchaser shall pay such excess in cash date hereof to Seller within five (5) days after the final determination. If, following any payment pursuant to this Section 4.4(d), an error (in billing or reporting by NRTC or otherwise) is thereafter discovered which would have affected the Final Closing Adjustment, the party in whose favor the error was made shall immediately pay in cash the amount of such error to the other partyClosing.
Appears in 1 contract
Sources: Membership Interest Purchase Agreement (Macquarie Infrastructure CO LLC)
Adjustment to Purchase Price. (a) The As soon as practicable, but in any event within 90 calendar days following the Closing Payment shall be increased by Date, Seller shall, at its expense, prepare and deliver to Buyer the parties' good faith estimate statements of the Current Assets assets, liabilities, surplus and other funds of Seller and decreased by the parties' good faith estimate of the Current Liabilities of Seller IGL as of the Closing Date (the "Closing Adjustment")Date, which adjustment shall be subject to final adjustment as provided for prepared in paragraph (c) below.
(b) No later than sixty (60) days after the Closing Date, or within three (3) days after receipt of the necessary accounting data from the NRTC Central Billing System, whichever is later, Purchaser shall make and deliver to Seller a balance sheet reflecting the Current Assets and Current Liabilities of Seller as of the Closing Date conformity with SAP (the "Closing Date Balance Sheet"). The Closing Date Balance Sheet shall present fairly, prepared on a basis consistent in all material respects (except for adjustment as provided in the following sentence), in accordance with GAAPSAP the financial position of IGL and the results of its operations and cash flows as of the date and for the period specified. The Closing Date Balance Sheet shall ▇▇▇▇ ▇▇▇'▇ assets to market value and will account for the effect of all of the transactions contemplated by this Agreement and the Farmers Agreement. For purposes of the Closing Adjustment and the Final Closing Adjustment (as hereinafter defined)this Section 2.4, the amount of Accounts Receivable of Seller to be included in the Closing Date Balance Sheet shall include only Accounts Receivable assign to any guaranty fund assessment carryovers existing at Closing a value of Subscribers as reflected on Report 18A zero.
(Subscriber Accounts Receivable Aging By Accountb) If Buyer does not agree to the determination of the NRTC Central Billing System Reports Closing Date Policyholders' Surplus, Buyer shall provide notice of such disagreement to Seller (the "Dispute Notice," and the date of its delivery, the "Dispute Notice Date"). If Seller and Buyer are unable to agree on the resolution of such disagreement within ten Business Days following the Dispute Notice Date, Seller and Buyer shall resolve such disagreement in accordance with the following procedures. Buyer and Seller shall each select an independent certified public accountant within ten Business Days after the Dispute Notice Date for the purpose of selecting a third independent certified public accountant with a regional or national accounting practice in the life insurance industry (the "Arbiter"). Such accountants shall mutually select the Arbiter and give a written notice to Buyer and Seller identifying the Arbiter, including a written acceptance of such appointment from the Arbiter, within twenty Business Days after the Dispute Notice Date. The Arbiter shall not have performed services for either Buyer or Seller within the preceding three years and shall not have testified in any dispute in which either Buyer or Seller was involved as a party; provided, however, that Buyer and Seller may waive such restriction in writing if they mutually agree to such waiver. Each party shall submit to the Arbiter all information reasonably requested by the Arbiter to enable the Arbiter to independently resolve the issue which is the subject of the Dispute Notice. The Arbiter shall make its own determination of the Closing Date Policyholders' Surplus, which may not be greater than Buyer's calculation thereof and may not be less than Seller's calculation thereof. The Arbiter shall issue a reserve written report of six percent its determination in reasonable detail and shall deliver a copy of such report to Seller and Buyer within twenty Business Days following the Arbiter's receipt of the Dispute Notice. The determination made by the Arbiter shall be final and binding and may be enforced by any court having jurisdiction. The Parties shall cooperate fully in assisting the Arbiter in calculating the Closing Date Policyholders' Surplus and shall take such actions as are necessary to expedite and to cause the Arbiter to expedite such calculation. Each of Seller and Buyer shall pay one-half of the total fees and expenses of the Arbiter. Each party shall bear all costs associated with its own appointed independent certified public accountant.
(6%c) for Accounts Receivable The Closing Date Balance Sheet shall be deemed to be final upon the earliest of (i) the date on which Seller and Buyer jointly agree that the Closing Date Balance Sheet are final, (ii) the 31st calendar day following the date of delivery of the Closing Date Balance Sheet pursuant to Section 7.9, if Buyer has not collectiblenotified Seller of a dispute in amounts shown on the Closing Date Balance Sheet, and (iii) the date on which all disputes relating to the Closing Date Balance Sheet between Buyer and Seller are resolved in accordance with Section 2.5(b).
(d) The difference between the Closing Date Policyholders' Surplus and Seven Million Dollars ($7,000,000 ) shall be the "Purchase Price Adjustment Amount." If the Closing Date Policyholders' Surplus is greater than Seven Million Dollars ($7,000,000), Buyer shall pay to Seller an amount equal to the Purchase Price Adjustment Amount. In additionIf the Closing Date Policyholders' Surplus is less than Seven Million Dollars ($7,000,000), Seller shall pay to Buyer an amount equal to the Purchase Price Adjustment Amount. On or before the 20th Business Day following the date on which, pursuant to Section 2.4(c) hereof, the Closing Date Balance Sheet and are deemed to be final, Seller or Buyer, as the Final Closing case may be, shall pay the Purchase Price Adjustment shall not include as a Current Asset any accounts receivable arising from Leased Subscriber Equipment. Purchaser may, by providing Seller with written notice at least five (5) days prior Amount to the Closingother Party by wire transfer of immediately available funds to such bank account(s) as the recipient shall designate in writing, elect to purchase all, or certain of, the DSS(TM) subscriber equipment owned by Seller (other than Leased Subscriber Equipment) on the Closing Date; provided, however, Purchaser shall not have the right to acquire any assets attributable to Seller's Electric Business. Any such equipment which is purchased by Purchaser shall be included as Inventory in together with interest from the Closing Date Balance Sheet. Except as set forth in this Section 4.4(b), no other assets or liabilities shall be included in the Closing Date Balance Sheet. Seller shall make available at a rate per annum equal to Purchaser such documentation, back-up, invoices, and books and records of Seller as Purchaser may reasonably request6%.
(c) Seller and Purchaser shall negotiate in good faith to reconcile any discrepancies which may arise in connection with the determination of the Closing Date Balance Sheet. If Seller and Purchaser are unable to reconcile such discrepancies, Seller shall have fifteen (15) days from presentment of the Closing Date Balance Sheet by Purchaser to notify Purchaser if Seller wishes to have Purchaser's determination examined. If Seller elects to have Purchaser's determination examined, it shall be submitted to the determination in Atlanta, Georgia, by the Certified Public Accounting firm of KMPG Peat Marwick (or any other independent Certified Public Accounting firm mutually acceptable to Seller and Purchaser), the cost of such examination to be paid fifty percent (50%) by Seller and fifty percent (50%) by Purchaser. The determination by Purchaser shall be final and binding on the parties unless Seller elects to have an examination as provided herein, in which case the results of the examination shall be made within thirty (30) days of such referral, and shall be final and binding on the parties (the "Final Closing Adjustment").
(d) To the extent the Final Closing Adjustment is less than the Closing Adjustment, Seller shall pay the difference in cash to Purchaser within five (5) days after the final determination. In the event the Final Closing Adjustment is greater than the Closing Adjustment, Purchaser shall pay such excess in cash to Seller within five (5) days after the final determination. If, following any payment pursuant to this Section 4.4(d), an error (in billing or reporting by NRTC or otherwise) is thereafter discovered which would have affected the Final Closing Adjustment, the party in whose favor the error was made shall immediately pay in cash the amount of such error to the other party.
Appears in 1 contract
Adjustment to Purchase Price. (a) The Closing Payment shall Purchase Price will be increased by or decreased, as the parties' good faith estimate case may be, dollar for dollar, to the extent that the value of the Current Net Tangible Assets of Seller and decreased by as reflected on the parties' good faith estimate Closing Balance Sheet is greater or less than zero (the "PURCHASE PRICE ADJUSTMENT"). The Closing Balance Sheet shall be a balance sheet of the Current Seller comprised of the Acquired Assets and Assumed Liabilities of Seller (provided, however, that no value shall be assigned to the Intellectual Property included in the Acquired Assets or the deferred revenue included in the Assumed Liabilities) as of the Closing Date Date, prepared by the Buyer, in the form and incorporating the adjustments set forth on Schedule 1.3 hereto. The Buyer shall send a copy of the Closing Balance Sheet to the Seller within forty-five (the "Closing Adjustment"), which adjustment shall be subject to final adjustment as provided for in paragraph (c) below.
(b) No later than sixty (6045) days after following the Closing Date, or within three (3the date of such notice being sometimes referred to herein as the "PURCHASE PRICE ADJUSTMENT DATE") days after receipt together with a notice setting forth (a) the amount of the necessary accounting data from adjustment in the NRTC Central Billing System, whichever is later, Purchaser shall make Purchase Price and deliver (b) a list of any assets and liabilities rejected by Buyer pursuant to Seller a balance sheet reflecting the Current Assets and Current Liabilities of Seller as of the Closing Date Section 1.1 hereof (the "Closing Date Balance SheetPURCHASE PRICE ADJUSTMENT NOTICE"), prepared on a basis consistent with GAAP. For purposes of In the Closing event that the Purchase Price Adjustment and Notice sets forth an increase in the Final Closing Adjustment (as hereinafter defined)Purchase Price, the Buyer shall pay such amount of Accounts Receivable of Seller to be included in the Closing Date Balance Sheet shall include only Accounts Receivable of Subscribers as reflected on Report 18A (Subscriber Accounts Receivable Aging By Account) of the NRTC Central Billing System Reports less a reserve of six percent (6%) for Accounts Receivable which are not collectible. In addition, the Closing Date Balance Sheet and the Final Closing Adjustment shall not include as a Current Asset any accounts receivable arising from Leased Subscriber Equipment. Purchaser may, by providing Seller with written notice at least five (5) days prior to the Closing, elect to purchase all, or certain of, the DSS(TM) subscriber equipment owned by Seller (other than Leased Subscriber Equipment) on the Closing Date; provided, however, Purchaser shall not have the right to acquire any assets attributable to Seller's Electric Business. Any such equipment which is purchased by Purchaser shall be included as Inventory in the Closing Date Balance Sheet. Except as set forth in this Section 4.4(b), no other assets or liabilities shall be included in the Closing Date Balance Sheet. Seller shall make available to Purchaser such documentation, back-up, invoices, and books and records of Seller as Purchaser may reasonably request.
(c) Seller and Purchaser shall negotiate in good faith to reconcile any discrepancies which may arise in connection with the determination of the Closing Date Balance Sheet. If Seller and Purchaser are unable to reconcile such discrepancies, Seller shall have within fifteen (15) days from presentment of the Closing Date Balance Sheet by Purchaser to notify Purchaser if Seller wishes to have Purchaser's determination examined. If Seller elects to have Purchaser's determination examined, it shall be submitted to the determination in Atlanta, Georgia, by the Certified Public Accounting firm of KMPG Peat Marwick (or any other independent Certified Public Accounting firm mutually acceptable to Seller and Purchaser), the cost of such examination to be paid fifty percent (50%) by Seller and fifty percent (50%) by Purchaser. The determination by Purchaser shall be final and binding on the parties unless Seller elects to have an examination as provided herein, in which case the results of the examination shall be made within thirty (30) days of such referral, and shall be final and binding on the parties (the "Final Closing Adjustment").
(d) To the extent the Final Closing Purchase Price Adjustment is less than the Closing Adjustment, Seller shall pay the difference in cash to Purchaser within five (5) days after the final determinationDate. In the event that the Final Closing Purchase Price Adjustment is greater than Notice sets forth a decrease in the Closing AdjustmentPurchase Price, Purchaser shall pay such excess in cash to Seller within five (5) days after the final determination. If, following any payment pursuant to this Section 4.4(d), an error (in billing or reporting by NRTC or otherwise) is thereafter discovered which would have affected the Final Closing Adjustment, the party in whose favor the error was made shall immediately pay in cash the amount of such error decrease shall be set-off against the amounts due under the Note, subject to Seller's right to dispute the other partyPurchase Price Adjustment pursuant to Section 7.2 hereof.
Appears in 1 contract
Adjustment to Purchase Price. (a) Not later than three (3) Business Days before the Closing Date, Arcar shall prepare and deliver to Buyer an estimated calculation and statement of the Net Assets (the "Estimated Statement") based upon the Books and Records of Arcar as of the time such Books and Records are closed on the day preceding the day of delivery of the Estimated Statement, assuming the satisfaction of Section 6.1(ii)(f) hereof. The Closing Estimated Statement shall be prepared in good faith and shall be subject to the review and written approval of Buyer and be in the form of the pro forma Statement of Net Assets attached hereto as Exhibit A. In the event that the amount of the estimated Net Assets set forth on the Estimated Statement (the "Estimated Net Assets") exceeds $1,998,876, being the Net Assets on June 30, 1995 and as detailed on the pro forma Statement of Net Assets attached hereto as Exhibit A, then the Purchase Price and the Cash Payment shall be increased by the parties' good faith estimate amount of such excess. In the event that the amount of the Current Estimated Net Assets of Seller is less than $1,998,876, then the Purchase Price and decreased the Cash Payment shall be reduced by the parties' good faith estimate amount of such deficiency.
(b) As promptly as practicable, but in any event not later than forty-five (45) days after the Current Liabilities of Seller Closing Date, Arcar shall cause to be prepared and delivered to Buyer a balance sheet for Arcar as of the Closing Date (the "Closing Adjustment"), which adjustment shall be subject to final adjustment as provided for in paragraph (c) below.
(b) No later than sixty (60) days after the Closing Date, or within three (3) days after receipt of the necessary accounting data from the NRTC Central Billing System, whichever is later, Purchaser shall make and deliver to Seller a balance sheet reflecting the Current Assets and Current Liabilities of Seller as of the Closing Date (the "Closing Date Balance Sheet"), prepared on a basis consistent with GAAP. For purposes of the Closing Adjustment and the Final Closing Adjustment which shall be audited by Coopers & ▇▇▇▇▇▇▇ (as hereinafter defined"C&L"), certified public accountants, and certified by such firm to have been prepared in accordance with GAAP consistently applied and in substantially the amount of Accounts Receivable of Seller manner used to be included in prepare the Closing Date Audited Financial Statements. The Balance Sheet shall include only Accounts Receivable be accompanied by a statement (the "Statement of Subscribers as reflected on Report 18A (Subscriber Accounts Receivable Aging By AccountNet Assets") of prepared by such accountants and setting forth the NRTC Central Billing System Reports less a reserve of six percent (6%) for Accounts Receivable Net Assets, which are not collectible. In addition, shall be calculated by reference to the Closing Date Balance Sheet and the Final Closing Adjustment shall not include as a Current Asset any accounts receivable arising from Leased Subscriber Equipment. Purchaser may, by providing Seller with written notice at least five (5) days prior to the Closing, elect to purchase all, or certain of, the DSS(TM) subscriber equipment owned by Seller (other than Leased Subscriber Equipment) on the Closing Date; provided, however, Purchaser shall not have the right to acquire any assets attributable to Seller's Electric Business. Any such equipment which is purchased by Purchaser shall be included as Inventory in the Closing Date Balance Sheet. Except form of the pro forma Statement of Net Assets attached hereto as set forth in this Section 4.4(b), no other assets or liabilities shall be included in the Closing Date Balance Sheet. Seller shall make available to Purchaser such documentation, back-up, invoices, and books and records of Seller as Purchaser may reasonably request.Exhibit A.
(c) Seller and Purchaser shall negotiate in good faith Subject to reconcile any discrepancies which may arise in connection with the determination of the Closing Date Balance Sheet. If Seller and Purchaser are unable to reconcile such discrepanciessubsection (d) below, Seller shall have fifteen (15) days from presentment of the Closing Date Balance Sheet by Purchaser to notify Purchaser if Seller wishes to have Purchaser's determination examined. If Seller elects to have Purchaser's determination examined, it shall be submitted to the determination in Atlanta, Georgia, by the Certified Public Accounting firm of KMPG Peat Marwick (or any other independent Certified Public Accounting firm mutually acceptable to Seller and Purchaser), the cost of such examination to be paid fifty percent (50%) by Seller and fifty percent (50%) by Purchaser. The determination by Purchaser shall be final and binding on the parties unless Seller elects to have an examination as provided herein, in which case the results of the examination shall be made within thirty (30) days after delivery of such referralthe Balance Sheet and the Statement of Net Assets pursuant to subsection (b) above, and (i) Arcar shall pay to Buyer the amount, if any, by which the amount of the Estimated Net Assets exceeds the Net Assets, or (ii) Buyer shall pay to Arcar the amount, if any, by which the amount of the Net Assets exceeds the Estimated Net Assets. Payments, if any, by Arcar or Buyer pursuant to this subsection (c) shall be final and binding on the made by wire transfer of immediately available funds. The parties (the "Final Closing Adjustment").
(d) To the extent the Final Closing Adjustment is less than the Closing Adjustment, Seller shall pay the difference in cash to Purchaser within five (5) days after the final determination. In the event the Final Closing Adjustment is greater than the Closing Adjustment, Purchaser shall pay such excess in cash to Seller within five (5) days after the final determination. If, following treat any payment made pursuant to this Section 4.4(d), 2.2(c) as an error (in billing or reporting by NRTC or otherwise) is thereafter discovered which would have affected the Final Closing Adjustment, the party in whose favor the error was made shall immediately pay in cash the amount of such error adjustment to the other partyPurchase Price for the Purchased Assets for all purposes.
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Adjustment to Purchase Price. (a) The Closing Payment shall be increased by the parties' good faith estimate of the Current Assets of Seller and decreased by the parties' good faith estimate of the Current Liabilities of Seller as of the Closing Date (the "Closing Adjustment"), which adjustment shall be subject to final adjustment as provided for in paragraph (c) below.
(b) No later than sixty (60) calendar days after following the Closing DateClosing, or within three (3) days after receipt of the necessary accounting data from the NRTC Central Billing System, whichever is later, Purchaser Seller shall make prepare and deliver to Seller Cott a balance sheet reflecting statement, certified by Seller's Chief Financial Officer, of the Current Assets working capital of the RC International Business and Current Liabilities the Cott Business, being Inventory, RC International Accounts Receivable and Cott Accounts Receivable net of Seller (i) payables, (ii) accrued liabilities and (iii) other liabilities, which, in the case of (i), (ii) and (iii) are of the nature of the categories set forth in Schedule 2.3(a), and which are related to or arise out of the RC International Business or the Cott Business (the "Working Capital"), as of the close of business on the Closing Date (the "Closing Date Balance SheetInitial Working Capital Statement"), prepared on a basis consistent with GAAPwhich shall set forth in detail the amounts underlying Seller's determination of the dollar value of the Working Capital. For purposes of this Section 2.3, the value of the components comprising Working Capital shall be determined as set forth in the notes to Schedule 2.3(a) and as set forth in Schedule 2.3(b).
(b) Cott shall notify Seller in writing (the "Notice of Disagreement") within thirty (30) days after receiving the Initial Working Capital Statement if Cott disagrees with Seller's calculation of the value of the Working Capital as of the close of business on the Closing Adjustment Date which Notice of Disagreement shall set forth in reasonable detail the basis for such dispute and the U.S. dollar amounts involved and Cott's good faith estimate of the value of the Working Capital as of the close of business on the Closing Date. If Cott does not deliver a Notice of Disagreement to Seller within such thirty-day period, then the Initial Working Capital Statement shall be deemed to have been accepted by Buyers, shall become final and binding upon the parties and shall be the "Final Working Capital Statement."
(c) During the fifteen (15) Business Days immediately following the delivery of a Notice of Disagreement, Seller and Cott shall seek in good faith to resolve any differences that they may have with respect to any matter specified in the Notice of Disagreement. If at the end of such fifteen (15) Business Day period Seller and Cott have been unable to agree upon the valuation of the Working Capital, then Seller and Cott shall submit to the Independent Accounting Firm for review and resolution any and all matters that remain in dispute with respect to the Notice of Disagreement. Cott and Seller shall use their reasonable efforts to cause the Independent Accounting Firm to use commercially practicable efforts to make a final determination (which determination shall be binding on the parties hereto) of the value of the Working Capital as of the close of business on the Closing Adjustment Date within fifteen (15) Business Days from such submission, and such final determination shall be the "Final Working Capital Statement." The cost of the Independent Accounting Firm's review and determination shall be split equally between Seller and Cott. During the fifteen (15) Business Day review by the Independent Accounting Firm, Cott and Seller will each make available to the Independent Accounting Firm interviews with such individuals and such information, books and records as may be reasonably required by the Independent Accounting Firm to make its final determination.
(d) If the value of the Working Capital as of the close of business on the Closing Date (as hereinafter defined)set forth in the Final Working Capital Statement) is less than $8.7 million, Seller shall pay to Cott the amount of Accounts Receivable of Seller to be included in such shortfall plus interest at the Agreed Rate calculated from the Closing Date Balance Sheet shall include only Accounts Receivable to the date of Subscribers payment as reflected on Report 18A (Subscriber Accounts Receivable Aging By Account) provided in this Section 2.3. If the value of the NRTC Central Billing System Reports less a reserve Working Capital as of six percent (6%) for Accounts Receivable which are not collectible. In addition, the close of business on the Closing Date Balance Sheet and (as set forth in the Final Working Capital Statement) is greater than $8.7 million, Cott shall pay to Seller the amount of such surplus plus interest at the Agreed Rate calculated from the Closing Adjustment shall not include Date to the date of payment as a Current Asset any accounts receivable arising from Leased Subscriber Equipmentprovided in this Section 2.3. Purchaser may, by providing Seller with written notice at least Within five (5) days prior to Business Days after the Closing, elect to purchase all, or certain of, the DSS(TM) subscriber equipment owned by Seller (other than Leased Subscriber Equipment) on the Closing Date; provided, however, Purchaser shall not have the right to acquire any assets attributable to Seller's Electric Business. Any such equipment which is purchased by Purchaser shall be included as Inventory in the Closing Date Balance Sheet. Except as set forth in this Section 4.4(b), no other assets or liabilities shall be included in the Closing Date Balance Sheet. Seller shall make available to Purchaser such documentation, back-up, invoices, and books and records of Seller as Purchaser may reasonably request.
(c) Seller and Purchaser shall negotiate in good faith to reconcile any discrepancies which may arise in connection with the determination of the Closing Date Balance Sheet. If Seller and Purchaser are unable to reconcile such discrepancies, Seller shall have fifteen (15) days from presentment of the Closing Date Balance Sheet by Purchaser to notify Purchaser if Seller wishes to have Purchaser's determination examined. If Seller elects to have Purchaser's determination examined, it shall be submitted to the determination in Atlanta, Georgia, by the Certified Public Accounting firm of KMPG Peat Marwick (or any other independent Certified Public Accounting firm mutually acceptable to Seller and Purchaser), the cost of such examination to be paid fifty percent (50%) by Seller and fifty percent (50%) by Purchaser. The determination by Purchaser shall be Final Working Capital Statement becomes final and binding on the parties unless Seller elects hereto, Cott or Seller, as applicable, shall pay to have an examination as the other the amounts provided herein, in which case by this Section 2.3(d). The allocation set forth on the results of the examination Allocation Schedule shall be adjusted to reflect any payments made within thirty (30) days of such referral, and shall be final and binding on the parties (the "Final Closing Adjustment").
(d) To the extent the Final Closing Adjustment is less than the Closing Adjustment, Seller shall pay the difference in cash to Purchaser within five (5) days after the final determination. In the event the Final Closing Adjustment is greater than the Closing Adjustment, Purchaser shall pay such excess in cash to Seller within five (5) days after the final determination. If, following any payment pursuant to this Section 4.4(d)2.3.
(e) Any payment due to either Seller or Cott hereunder shall be paid as soon as practicable on the day when due in U.S. dollars by wire transfer in immediately available funds. All computations of interest shall be made assuming an annual rate of 8% (the "Agreed Rate") on the basis of a year of 360 days, an error in each case for the actual number of days (including the first day but excluding the last day) occurring in billing or reporting by NRTC or otherwise) the period for which such interest is thereafter discovered which would have affected payable. Whenever any payment hereunder shall fall on a day other than a Business Day, such payment shall be made on the Final Closing Adjustmentnext succeeding Business Day, and such extension of time shall in such case be included in the party in whose favor the error was made shall immediately pay in cash the amount computation of such error to the other partypayment of interest.
Appears in 1 contract
Adjustment to Purchase Price. (ai) The Closing Payment Purchase Price shall be increased by or decreased, as the parties' good faith estimate case may be, on a dollar for dollar basis to the extent that the Closing Date Working Capital is greater or less than the Target Working Capital. Attached hereto as Schedule 2.6(b), for illustration purposes only, is a statement of working capital of the Current Assets Billing Software Business prepared as of Seller and decreased by April 30, 2004 (the parties' good faith estimate “Working Capital Statement”), which calculates the net working capital of the Current Liabilities of Seller as Billing Software Business, including the Accounts Receivable Adjustment, the Deferred Revenue Adjustment, the Prepaid Expense Adjustment, the Restructuring Expense Adjustment, and the reduction in the Purchase Price that would be required by this Section 2.6(b) had the Closing occurred on April 30, 2004. The Working Capital Statement shall include the Deferred Revenue Statement.
(ii) Not later than eight (8) Business Days prior to the Pre-Closing, ADC shall prepare an estimate of the Closing Date Working Capital (the "“Estimated Working Capital Statement”) in consultation with Buyer, showing in reasonable detail the amount reasonably estimated by ADC, in good faith, to be the net amount, if any, of the adjustments provided for in this Section 2.6(b). The Estimated Working Capital Statement will be prepared in accordance with the Accounting Policies on the same basis and using the same methodology, assumptions and adjustments utilized to prepare the Working Capital Statement, and shall include the Estimated Deferred Revenue Statement and the Restructuring Expense Statement. The Purchase Price payable by Buyer at the Closing Adjustment"shall be based on the estimated value of current assets and current liabilities of the Billing Software Business as set forth in the Estimated Working Capital Statement and shall be adjusted after the Closing, if necessary, pursuant to Section 2.6(c). Notwithstanding the above, any increase in the Purchase Price that may be due to ADC from Buyer pursuant to this Section 2.6(b) at Closing, shall, at Buyer’s sole discretion, be set off against the Deemed Value of the remaining services that ADC is otherwise obligated to provide to Buyer pursuant to the Transition Services Agreement (and in no event shall any increase in the Purchase Price exceed the Deemed Value of the remaining services under the Transition Services Agreement) by reducing the term (in whole month increments) in which adjustment ADC is otherwise obligated to provide such services to Buyer following the Closing Date, but which reduction shall be subject to final adjustment as provided for Buyer’s right, in paragraph (c) below.
(b) No later than sixty (60) days after the Closing Dateits sole discretion, or within three (3) days after receipt of the necessary accounting data from the NRTC Central Billing System, whichever is later, Purchaser shall make and deliver to Seller a balance sheet reflecting the Current Assets and Current Liabilities of Seller as of the Closing Date (the "Closing Date Balance Sheet"), prepared on a basis consistent with GAAP. For purposes of the Closing Adjustment and the Final Closing Adjustment (as hereinafter defined), the amount of Accounts Receivable of Seller to be included in the Closing Date Balance Sheet shall include only Accounts Receivable of Subscribers as reflected on Report 18A (Subscriber Accounts Receivable Aging By Account) of the NRTC Central Billing System Reports less a reserve of six percent (6%) for Accounts Receivable which are not collectible. In addition, the Closing Date Balance Sheet and the Final Closing Adjustment shall not include as a Current Asset re-purchase any accounts receivable arising from Leased Subscriber Equipment. Purchaser may, by providing Seller with written notice at least five (5) days prior to the Closing, elect to purchase all, or certain of, the DSS(TM) subscriber equipment owned by Seller (other than Leased Subscriber Equipment) on the Closing Date; provided, however, Purchaser shall not have the right to acquire any assets attributable to Seller's Electric Business. Any such equipment which is purchased by Purchaser shall be included as Inventory in the Closing Date Balance Sheet. Except as set forth in this Section 4.4(b), no other assets or liabilities shall be included in the Closing Date Balance Sheet. Seller shall make available to Purchaser such documentation, back-up, invoices, and books and records of Seller as Purchaser may reasonably request.
(c) Seller and Purchaser shall negotiate in good faith to reconcile any discrepancies which may arise in connection with the determination of the Closing Date Balance Sheet. If Seller and Purchaser are unable to reconcile such discrepancies, Seller shall have fifteen (15) days from presentment of the Closing Date Balance Sheet by Purchaser to notify Purchaser if Seller wishes to have Purchaser's determination examined. If Seller elects to have Purchaser's determination examined, it shall be submitted to the determination in Atlanta, Georgia, by the Certified Public Accounting firm of KMPG Peat Marwick (or any other independent Certified Public Accounting firm mutually acceptable to Seller and Purchaser), the cost portion of such examination to be paid fifty percent (50%) by Seller and fifty percent (50%) by Purchaser. The determination by Purchaser shall be final and binding on services at the parties unless Seller elects to have an examination as provided herein, in which case the results of the examination shall be made within thirty (30) days of such referral, and shall be final and binding on the parties (the "Final Closing Adjustment").
(d) To the extent the Final Closing Adjustment is less than the Closing Adjustment, Seller shall pay the difference in Deemed Value for cash to Purchaser payable within five (5) days after Business Days of the final determinationdate in which notice is provided. In With respect to the event preceding sentence, for the Final Closing Adjustment avoidance of doubt, and by way of example, if the amount owed ADC is greater than determined to be $500,000, the Closing Adjustmentterm in which ADC is otherwise obligated to provide such services shall be reduced by two months, Purchaser shall pay such excess provided that if Buyer pays ADC $100,000 in cash to Seller within five (5) days after reduce the final determination. Ifoverall amount owed to ADC to $400,000, following any payment pursuant then the term in which ADC is otherwise obligated to this Section 4.4(d), an error (in billing or reporting provide the services shall be reduced by NRTC or otherwise) is thereafter discovered which would have affected the Final Closing Adjustment, the party in whose favor the error was made shall immediately pay in cash the amount of such error to the other partyone month.
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Adjustment to Purchase Price. The Purchase Price shall be subject to adjustment in accordance with the following procedures:
(a) The Prior to the Closing Payment Date, Seller shall be increased by the parties' deliver to Buyer a good faith estimate of the Current Closing Date Working Capital, which shall be determined in accordance with GAAP and in accordance with the sample calculation set forth in Schedule 2.6 (the “Estimated Closing Date Working Capital”) and which the Parties shall use for purposes of determining the Estimated Adjusted Purchase Price. Seller shall include with such estimate, statements setting forth in detail the Purchased Assets (including, without limitation, an itemized list of Seller Accounts Receivable, with aging schedule, and decreased by prepaid expenses) and the parties' good faith estimate Assumed Liabilities included in its calculation of the Current Liabilities of Seller Estimated Closing Date Working Capital. The Estimated Closing Date Working Capital shall be adjusted as of necessary on the Closing Date (the "Closing Adjustment"), which adjustment shall be subject to final adjustment as provided for reflect any adjustments reasonably requested by Buyer and satisfactory to Seller in paragraph (c) belowits reasonable discretion.
(b) No later than Within sixty (60) days after the Closing Date, or within three (3) days after receipt of the necessary accounting data from the NRTC Central Billing System, whichever is later, Purchaser Buyer shall make prepare and deliver to Seller a balance sheet reflecting the Current Assets and Current Liabilities of Seller as calculation of the Closing Date (the "Working Capital. The calculation of Closing Date Balance Sheet"), prepared on a basis consistent with GAAP. For purposes of the Closing Adjustment and the Final Closing Adjustment (as hereinafter defined), the amount of Accounts Receivable of Seller to be included in the Closing Date Balance Sheet shall include only Accounts Receivable of Subscribers as reflected on Report 18A (Subscriber Accounts Receivable Aging By Account) of the NRTC Central Billing System Reports less a reserve of six percent (6%) for Accounts Receivable which are not collectible. In addition, the Closing Date Balance Sheet and the Final Closing Adjustment shall not include as a Current Asset any accounts receivable arising from Leased Subscriber Equipment. Purchaser may, by providing Seller with written notice at least five (5) days prior to the Closing, elect to purchase all, or certain of, the DSS(TM) subscriber equipment owned by Seller (other than Leased Subscriber Equipment) on the Closing Date; provided, however, Purchaser shall not have the right to acquire any assets attributable to Seller's Electric Business. Any such equipment which is purchased by Purchaser Working Capital shall be included as Inventory prepared in accordance with GAAP and in accordance with the Closing Date Balance Sheet. Except as sample calculation set forth in this Section 4.4(b), no other assets or liabilities shall be included in the Closing Date Balance SheetSchedule 2.6. Seller shall make available to Purchaser such documentation, back-up, invoices, and books and records of Seller as Purchaser may reasonably request.
(c) Seller and Purchaser shall negotiate in good faith to reconcile any discrepancies which may arise in connection with the determination Buyer’s calculation of the Closing Date Balance Sheet. If Seller and Purchaser are unable to reconcile such discrepancies, Seller shall have fifteen (15) days from presentment of the Closing Date Balance Sheet by Purchaser to notify Purchaser if Seller wishes to have Purchaser's determination examined. If Seller elects to have Purchaser's determination examined, it shall be submitted to the determination in Atlanta, Georgia, by the Certified Public Accounting firm of KMPG Peat Marwick (or any other independent Certified Public Accounting firm mutually acceptable to Seller and Purchaser), the cost of such examination to be paid fifty percent (50%) by Seller and fifty percent (50%) by Purchaser. The determination by Purchaser Working Capital shall be final and binding on the parties unless Parties for purposes of this Section 2.6 unless, within ten (10) business days after delivery thereof to Seller, Seller elects delivers to have an examination Buyer a written notice of dispute specifying in reasonable detail the items in dispute. After delivery of such a dispute notice, Seller and Buyer shall promptly negotiate in good faith to reach agreement on the disputed items or amounts in order to determine, as provided hereinmay be required, the amount of Closing Date Working Capital, which amount shall not be less than the amount thereof shown in which case Buyer’s calculation delivered pursuant to this Section 2.6(b) nor more than the results amount thereof shown in Seller’s calculation of the examination Estimated Closing Date Working Capital delivered pursuant to Section 2.6(a). If, during such period, Seller and Buyer are unable to reach such agreement, they shall be made within promptly thereafter cause an independent certified public accounting firm mutually acceptable to the Parties (the “Accounting Referee”) to review this Agreement and the disputed items or amounts for the purpose of calculating Closing Date Working Capital. In making such calculation, the Accounting Referee shall consider only those still unresolved items or amounts in Buyer’s calculation of Closing Date Working Capital as to which Seller has duly objected in accordance with this Section 2.6(b). The Accounting Referee shall deliver to Seller and Buyer, as promptly as practicable (but in any case no later than thirty (30) days from the date of engagement of the Accounting Referee), a report setting forth such referral, and calculation. Such report shall be final and binding upon Seller and Buyer. The cost of such review and report shall be borne by the Party whose determination of the Closing Date Working Capital (as set forth in the statement submitted by Buyer pursuant to Section 2.6(a) or in Seller’s notice of disagreement delivered in accordance with this Section 2.6(b)) was furthest from the determination of the Final Closing Date Working Capital determined by the Accounting Referee, or equally if the determination of the Final Closing Date Working Capital by the Accounting Referee is equidistant between the determinations of Buyer and Seller. The Closing Date Working Capital finally determined under this Section 2.6(b) shall be referred to as the “Final Closing Date Working Capital”.
(c) The Purchase Price shall be subject to adjustment, upwards or downwards, based on the parties (the "Final Closing Adjustment"Date Working Capital, as follows:
(i) If the Final Adjusted Purchase Price is less than the Estimated Adjusted Purchase Price, then Seller and Shareholders, jointly, shall pay to Buyer the amount of such deficiency pursuant to the provisions of Section 2.6(c)(iii) (or authorize Buyer in writing to receive payment of such amount from the Escrow Amount in accordance with Section 6.6). If Seller and Shareholders fail to pay when due the amount due from them pursuant to this Section then, in addition to any other rights and remedies available to Buyer (and notwithstanding any failure by Seller and Shareholders to authorize such payment as provided above), Buyer shall have the right to receive payment of such amount from the Escrow Amount, subject to and in accordance with the terms of Section 6.6.
(ii) If the Final Adjusted Purchase Price is greater than the Estimated Adjusted Purchase Price, then Buyer shall pay to Seller an amount equal to such excess, pursuant to the provisions of Section 2.6(c)(iii).
(diii) To Payments in respect of this Section 2.6(c) shall be made within ten (10) business days of the extent final determination of the Final Closing Adjustment is less than Date Working Capital pursuant to the Closing Adjustment, Seller shall pay provisions of this Section 2.6 by wire transfer of immediately available funds to such account or accounts as may be designated in writing by the difference Party entitled to such payment at least two (2) business days prior to such payment date. Any reduction or increase in cash to Purchaser within five (5) days after the final determination. In the event the Final Closing Adjustment is greater than the Closing Adjustment, Purchaser shall pay such excess in cash to Seller within five (5) days after the final determination. If, following any payment Purchase Price made pursuant to this Section 4.4(d), 2.6 shall be treated by the Parties as an error (in billing or reporting by NRTC or otherwise) is thereafter discovered which would have affected the Final Closing Adjustment, the party in whose favor the error was made shall immediately pay in cash the amount of such error adjustment to the other partyPurchase Price for income tax purposes, and the Parties shall adjust the allocation of the Purchase Price as necessary to reflect such adjustment.
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Adjustment to Purchase Price. (ai) The Closing Payment shall be increased by the parties' good faith estimate of the Current Assets of Seller and decreased by the parties' good faith estimate of the Current Liabilities of Seller as of the Closing Date (the "Closing Adjustment"), which adjustment shall be subject to final adjustment as provided for in paragraph (c) below.
(b) No later than sixty (60) Within 60 days after the Closing Date, Buyer will cause Seller's Corporation to prepare and deliver to the Shareholders an unaudited consolidated balance sheet of Seller's Corporation as of the Closing Date immediately prior to giving effect to the transactions contemplated hereby, prepared in accordance with GAAP consistently applied (the "Closing Balance Sheet").
(ii) If the Shareholders disagree with the computation of Closing Net Worth or the Closing Balance Sheet, the Shareholders shall, within three (3) 30 days after receipt of the necessary accounting data from the NRTC Central Billing System, whichever is later, Purchaser shall make and deliver to Seller a balance sheet reflecting the Current Assets and Current Liabilities of Seller as of the Closing Date (the "Closing Date Balance Sheet, deliver a written notice (an "), prepared on a basis consistent with GAAPObjection Notice") to Buyer setting forth the Shareholders' calculation of Closing Net Worth. For purposes of The Objection Notice shall specifically state and shall only state those items or amounts as to which the Closing Adjustment Shareholders disagrees and the Final Closing Adjustment (as hereinafter defined)basis of such disagreement, the amount of Accounts Receivable of Seller to be included in the Closing Date Balance Sheet shall include only Accounts Receivable of Subscribers as reflected on Report 18A (Subscriber Accounts Receivable Aging By Account) of the NRTC Central Billing System Reports less a reserve of six percent (6%) for Accounts Receivable which are not collectible. In addition, the Closing Date Balance Sheet and the Final Closing Adjustment Shareholders shall not include as a Current Asset any accounts receivable arising from Leased Subscriber Equipment. Purchaser may, by providing Seller be deemed to have agreed with written notice at least five (5) days prior to the Closing, elect to purchase all, or certain of, the DSS(TM) subscriber equipment owned by Seller (all other than Leased Subscriber Equipment) items and amounts on the Closing Date; providedBalance Sheet including the determination of Closing Net Worth. If an Objection Notice is not delivered within such time period, however, Purchaser shall not have the right to acquire any assets attributable to Seller's Electric Business. Any such equipment which is purchased by Purchaser shall be included as Inventory in then the Closing Date Balance Sheet. Except Net Worth as set forth in this Section 4.4(b), no other assets or liabilities the statement delivered by Seller's Corporation shall be included in conclusive and binding upon the Closing Date Balance Sheet. Seller shall make available to Purchaser such documentation, back-up, invoices, and books and records of Seller as Purchaser may reasonably requestParties.
(ciii) Seller If an Objection Notice is delivered within such time period, Buyer and Purchaser shall negotiate the Shareholders shall, during the 15 days following the receipt by Buyer of such notice, use their reasonable efforts to reach agreement on the disputed items or amounts in good faith order to reconcile any discrepancies which may arise in connection determine the amount of Closing Net Worth, but if they do not obtain a final resolution within such 15 days, Buyer and the Shareholders will jointly retain an accounting firm (the "Firm") with the determination of the Closing Date Balance Sheetappropriate background and experience to so act to resolve any remaining disagreements. If Seller Buyer and Purchaser the Shareholders are unable to reconcile such discrepancies, Seller shall have fifteen (15) days from presentment agree on the choice of the Closing Date Balance Sheet by Purchaser to notify Purchaser if Seller wishes to have Purchaser's determination examined. If Seller elects to have Purchaser's determination examinedFirm, it the Firm shall be submitted PriceWaterhouseCoopers (PWC) unless such firm is no longer "independent" with respect to either the determination in Atlanta, Georgia, by Buyer or the Certified Public Accounting firm of KMPG Peat Marwick (or any other independent Certified Public Accounting firm mutually acceptable to Seller and Purchaser), the cost of such examination to be paid fifty percent (50%) by Seller and fifty percent (50%) by Purchaser. The determination by Purchaser shall be final and binding on the parties unless Seller elects to have an examination as provided hereinShareholders, in which case such firm shall select the results Firm. Buyer and the s Representative shall direct the Firm to render a determination within 30 days of its retention and the Parties and their respective employees, including the employees of Seller's Corporation, shall cooperate with the Firm during its engagement. The Firm shall consider only those items and amounts which are listed in the Objection Notice which Buyer and the Shareholders are unable to resolve. The determination of the examination Firm will be conclusive and binding upon the Parties. The cost of such review and report by the Firm shall be made within thirty (30) days of such referral, borne one-half by the Shareholders and shall be final and binding on the parties (the "Final Closing Adjustment")one-half by Buyer.
(div) To Buyer and the Shareholders agree that they will, and agree to cause their respective independent accountants and Seller's Corporation and their independent accountants to, cooperate and assist in the preparation of the Closing Balance Sheet and calculation of the Closing Net Worth and in the conduct of the reviews thereof by the Shareholders, and if applicable, the Firm, including without limitation, the making available to the extent the Final Closing Adjustment is less than the Closing Adjustmentnecessary of books, Seller shall pay the difference in cash to Purchaser within five (5) days after the final determination. In the event the Final Closing Adjustment is greater than the Closing Adjustmentrecords, Purchaser shall pay such excess in cash to Seller within five (5) days after the final determination. If, following any payment pursuant to this Section 4.4(d), an error (in billing or reporting by NRTC or otherwise) is thereafter discovered which would have affected the Final Closing Adjustment, the party in whose favor the error was made shall immediately pay in cash the amount of such error to the other partywork papers and personnel.
Appears in 1 contract
Adjustment to Purchase Price. (a) The Closing Payment shall be increased by As soon as practicable after the parties' good faith estimate of the Current Assets of Seller and decreased by the parties' good faith estimate of the Current Liabilities of Seller as of the Closing Date (the "Closing Adjustment")Closing, which adjustment shall be subject to final adjustment as provided for but in paragraph (c) below.
(b) No no event later than sixty (60) days after the Closing Date, or Buyer shall review the books and records of the Company. Within said period, Buyer also shall (i) calculate the Working Capital Value of the Company as of the Closing Date, (ii) prepare a statement setting forth a detailed calculation of the Working Capital Adjustment and the Adjusted Purchase Price (the "Purchase Price Statement"), and (iii) within three (3) days after receipt completion of the necessary accounting data from Purchase Price Statement, deliver the NRTC Central Billing System, whichever is later, Purchaser shall make and deliver Purchase Price Statement to Seller a balance sheet reflecting the Current Assets and Current Liabilities of Seller as of the Closing Date (the "Closing Date Balance Sheet"), prepared on a basis consistent with GAAPStockholder. For purposes of calculating the Closing Working Capital Adjustment, Buyer may only make adjustments for items occurring after August 31, 2000. The Stockholder shall have thirty (30) days after receipt of the Purchase Price Statement to give Buyer written notice of its objection to any item or calculation contained in the Purchase Price Statement. If the Stockholder does not give Buyer written notice of its objection to the Purchase Price Statement within such thirty (30) day period, such Purchase Price Statement shall be deemed final and conclusive with respect to the determination of the Working Capital Adjustment and the Final Closing Adjustment (as hereinafter defined), the amount of Accounts Receivable of Seller to Adjusted Purchase Price and shall be included in the Closing Date Balance Sheet shall include only Accounts Receivable of Subscribers as reflected on Report 18A (Subscriber Accounts Receivable Aging By Account) of the NRTC Central Billing System Reports less a reserve of six percent (6%) for Accounts Receivable which are not collectible. In addition, the Closing Date Balance Sheet and the Final Closing Adjustment shall not include as a Current Asset any accounts receivable arising from Leased Subscriber Equipment. Purchaser may, by providing Seller with written notice at least five (5) days prior to the Closing, elect to purchase all, or certain of, the DSS(TM) subscriber equipment owned by Seller (other than Leased Subscriber Equipment) binding on the Closing Date; providedparties for such purposes. If, however, Purchaser shall not have the right Stockholder objects to acquire any assets attributable to Seller's Electric Business. Any such equipment which is purchased by Purchaser shall be included as Inventory items or calculations contained in the Closing Date Balance Sheet. Except as set forth in this Section 4.4(b)Purchase Price Statement, no other assets or liabilities the parties shall be included in the Closing Date Balance Sheet. Seller meet and shall make available to Purchaser such documentation, back-up, invoices, and books and records of Seller as Purchaser may reasonably request.
(c) Seller and Purchaser shall negotiate attempt in good faith to reconcile any discrepancies which may arise in connection with the determination of the Closing Date Balance Sheetresolve such objections. If Seller and Purchaser the parties are unable to reconcile such discrepancies, Seller shall have fifteen (15) days from presentment of resolve the Closing Date Balance Sheet by Purchaser to notify Purchaser if Seller wishes to have PurchaserStockholder's determination examined. If Seller elects to have Purchaser's determination examined, it shall be submitted to the determination in Atlanta, Georgia, by the Certified Public Accounting firm of KMPG Peat Marwick (or any other independent Certified Public Accounting firm mutually acceptable to Seller and Purchaser), the cost of such examination to be paid fifty percent (50%) by Seller and fifty percent (50%) by Purchaser. The determination by Purchaser shall be final and binding on the parties unless Seller elects to have an examination as provided herein, in which case the results of the examination shall be made objections within thirty (30) days of following such referralobjection, such objections and Buyer's responses thereto will be reviewed by the Independent Accountant, who shall resolve all such objections, make any necessary revisions to the Purchase Price Statement, and deliver the Purchase Price Statement (as so revised, if applicable) to Buyer and the Stockholder within fifteen (15) days after receiving written instructions to resolve such objections. The Purchase Price Statement as finalized by the Independent Accountant shall be deemed final and conclusive with respect to the Working Capital Adjustment and the Adjusted Purchase Price and shall be final and binding on the parties for such purposes. The fees and expenses of the Independent Accountant in resolving all such objections shall be borne (x) one-half by Buyer and (y) one-half by the "Final Closing Adjustment")Stockholder.
(d) To the extent the Final Closing Adjustment is less than the Closing Adjustment, Seller shall pay the difference in cash to Purchaser within five (5) days after the final determination. In the event the Final Closing Adjustment is greater than the Closing Adjustment, Purchaser shall pay such excess in cash to Seller within five (5) days after the final determination. If, following any payment pursuant to this Section 4.4(d), an error (in billing or reporting by NRTC or otherwise) is thereafter discovered which would have affected the Final Closing Adjustment, the party in whose favor the error was made shall immediately pay in cash the amount of such error to the other party.
Appears in 1 contract
Sources: Stock Purchase Agreement (Charles River Laboratories International Inc)
Adjustment to Purchase Price. (a) The Following the Closing Payment Date, the Purchase Price shall be increased by or reduced as set forth in Section 1.6(f). Any increase or decrease in the parties' good faith estimate of the Current Assets of Seller and decreased by the parties' good faith estimate of the Current Liabilities of Seller as of the Closing Date (the "Closing Adjustment"), which adjustment Purchase Price pursuant to this Section 1.6 shall be subject referred to final adjustment as provided for in paragraph (c) belowa “Purchase Price Adjustment”.
(b) No later than Within sixty (60) days after the Closing Date, or within three (3) days after receipt of the necessary accounting data from the NRTC Central Billing System, whichever is later, Purchaser Buyer shall make prepare and deliver to Seller a balance sheet reflecting statement (the Current Assets “Preliminary Closing Statement”), which sets forth in reasonable detail the Preliminary Net Working Capital Schedule, including Buyer’s calculation of (i) Closing Date Cash, (ii) Closing Indebtedness, and Current Liabilities of Seller (iii) Company Transaction Expenses as of the Closing Date (Closing. Purchase accounting or other adjustments arising out of the "Closing Date Balance Sheet"), prepared on a basis consistent with GAAP. For consummation of the transactions contemplated by this Agreement shall not be considered for purposes of determining the Preliminary Closing Adjustment and Statement. The Preliminary Closing Statement shall exclude the Final Closing Adjustment (as hereinafter defined)effect of any act, the amount of Accounts Receivable of Seller to be included decision, change in the Closing Date Balance Sheet shall include only Accounts Receivable of Subscribers as reflected circumstance, development or event arising or occurring on Report 18A (Subscriber Accounts Receivable Aging By Account) of the NRTC Central Billing System Reports less a reserve of six percent (6%) for Accounts Receivable which are not collectible. In addition, the Closing Date Balance Sheet and the Final Closing Adjustment shall not include as a Current Asset any accounts receivable arising from Leased Subscriber Equipment. Purchaser may, by providing Seller with written notice at least five (5) days prior to or after the Closing, elect to purchase all, or certain of, the DSS(TM) subscriber equipment owned by Seller (other than Leased Subscriber Equipment) on the Closing Date; provided, however, Purchaser shall not have the right to acquire any assets attributable to Seller's Electric Business. Any such equipment which is purchased by Purchaser shall be included as Inventory in the Closing Date Balance Sheet. Except as set forth in this Section 4.4(b), no other assets or liabilities shall be included in the Closing Date Balance Sheet. Seller shall make available to Purchaser such documentation, back-up, invoices, and books and records of Seller as Purchaser may reasonably request.
(c) Seller shall have a period of up to ninety (90) days after the Closing Date to deliver to Buyer a written notice of Seller’s disagreement with any item contained in the Preliminary Closing Statement, which notice shall set forth in reasonable detail the basis for such disagreement and Purchaser the adjustments to the Net Working Capital, Closing Date Cash, Closing Indebtedness and/or Company Transaction Expenses that Seller believes should be made to the extent the amount of any such adjustments are reasonably ascertainable at that time, as reasonably determined by Seller in good faith (a “Notice of Disagreement”). During the period following Seller’s receipt of the Preliminary Closing Statement, Buyer shall negotiate provide to Seller and its Representatives reasonable access during reasonable hours and under reasonable circumstances to all relevant books and records and any work papers (including those of Buyer’s Representatives, subject to the execution of appropriate access agreements with Representatives with respect to their work papers) relating to the preparation of the Preliminary Closing Statement, in each case as reasonably requested by Seller in connection with Seller’s review of the Preliminary Closing Statement. If a Notice of Disagreement is delivered by Seller within such ninety (90) day period, then the Preliminary Closing Statement (as revised in accordance with clause (i) or (ii) below) shall become the Final Closing Statement and become final and binding upon the Parties on the earlier of the date on which (i) Seller and Buyer resolve in writing any differences they have with respect to the matters specified in the Notice of Disagreement and (ii) all remaining matters in dispute are finally resolved in writing by the Accounting Firm. During the first thirty (30) days following Buyer’s receipt of a Notice of Disagreement, Buyer and Seller shall seek in good faith to reconcile resolve in writing any discrepancies which may arise differences they have with respect to the matters specified in connection the Notice of Disagreement, and upon resolution of all such matters, the Final Closing Statement shall be prepared in accordance with the determination agreement of the Closing Date Balance Sheet. Buyer and Seller.
(d) If Buyer and Seller and Purchaser are unable to reconcile such discrepancies, Seller shall have fifteen (15) days from presentment resolve the disputed items set forth in the Notice of the Closing Date Balance Sheet by Purchaser to notify Purchaser if Seller wishes to have Purchaser's determination examined. If Seller elects to have Purchaser's determination examined, it shall be submitted to the determination in Atlanta, Georgia, by the Certified Public Accounting firm of KMPG Peat Marwick (or any other independent Certified Public Accounting firm mutually acceptable to Seller and Purchaser), the cost of such examination to be paid fifty percent (50%) by Seller and fifty percent (50%) by Purchaser. The determination by Purchaser shall be final and binding on the parties unless Seller elects to have an examination as provided herein, in which case the results of the examination shall be made Disagreement within thirty (30) days following Buyer’s receipt of such referralNotice of Disagreement (or such longer period as Buyer and Seller may mutually agree in writing), such dispute shall be submitted to, and all issues having a bearing on such dispute shall be resolved by a mutually agreed office of Deloitte & Touche LLP (the “Accounting Firm”). Buyer and Seller shall submit to the Accounting Firm for review and resolution all matters (but only such matters) that are set forth in the Notice of Disagreement that remain in dispute. Buyer and Seller shall instruct the Accounting Firm to select one (1) of its partners experienced in purchase price adjustment disputes to make a final determination of the Net Working Capital, the Closing Date Cash, the amount of Closing Indebtedness and the amount of Company Transaction Expenses calculated with reference to the items that are in dispute as set forth in the Notice of Disagreement. Buyer and Seller shall instruct the Accounting Firm that, in resolving the items in the Notice of Disagreement that are still in dispute and in determining the Net Working Capital, the Closing Date Cash, the amount of Closing Indebtedness and the amount of Company Transaction Expenses, the Accounting Firm shall (i) not assign to any item in dispute a value that is (A) greater than the greatest value for such item assigned by Buyer, on the one hand, or Seller, on the other hand, or (B) less than the smallest value for such item assigned by Buyer, on the one hand, or Seller, on the other hand, (ii) make its determination based on an independent review (which will be in accordance with the guidelines and procedures set forth in this Agreement) and, at the Accounting Firm’s discretion, a one (1)-day conference concerning the dispute, at which conference each of Buyer and Seller shall have the right to present their respective positions with respect to the dispute and have present their respective Representatives, (iii) render a final resolution in writing to Buyer and Seller (which final resolution shall be requested by Buyer and Seller to be delivered not more than thirty (30) days following submission of such disputed matters to the Accounting Firm), which, absent manifest error, shall be final, conclusive and binding on the parties Parties with respect to the Net Working Capital, the Closing Date Cash, the amount of Closing Indebtedness and the amount of Company Transaction Expenses, and (iv) provide a written report to Buyer and Seller, if requested by either of them, which sets forth in reasonable detail the "Final Closing Adjustment"basis for the Accounting Firm’s final determination. The fees and expenses of the Accounting Firm shall be allocated between Buyer and Seller based upon the percentage which the portion of the disputes not awarded to each Party bears to the amount actually contested by the Party (i.e., if Seller claims that the appropriate adjustments are $1,000 greater than the amount determined by Buyer and if the Accounting Firm ultimately resolves the dispute by awarding to Seller $300 of the $1,000 contested, then the fees and expenses of the Accounting Firm shall be allocated 30% to Buyer and 70% to Seller). If the Accounting Firm requires payment of fees and expenses in advance of issuing its final determination, then such fees and expenses shall be borne equally by the Parties; provided the applicable Party shall be promptly reimbursed by the other Party in accordance with the immediately preceding sentence.
(de) To The Preliminary Closing Statement shall be deemed final and binding upon the extent Parties for the purposes of this Section 1.6 upon the earliest of (i) ninety (90) days after the Closing Date, if and only if Seller does not deliver a Notice of Disagreement within such period, (ii) the resolution of all disputes, if any, by Buyer and Seller pursuant to Section 1.6(c), and (iii) the resolution of all disputes, if any, by the Accounting Firm pursuant to Section 1.6(d), and shall, in each case, thereafter constitute the Final Closing Adjustment is less than Statement, but only after, in the Closing Adjustmentevent of clauses (ii) and (iii), Seller shall pay giving effect to the difference in cash to Purchaser within resolution referenced therein.
(f) Within five (5) days after Business Days following the final determination. In the event determination of the Final Closing Adjustment is greater than Statement, the Final Cash Balance, the Final Net Working Capital Schedule, the Closing Adjustment, Purchaser shall pay such excess in cash to Seller within five (5) days after the final determination. If, following any payment pursuant to this Section 4.4(d), an error (in billing or reporting by NRTC or otherwise) is thereafter discovered which would have affected the Final Closing Adjustment, the party in whose favor the error was made shall immediately pay in cash Indebtedness and the amount of Closing Company Transaction Expenses in accordance with Section 1.6(c), Section 1.6(d) or Section 1.6(e)(i), as applicable:
(i) if there is a Final Deficit, then Seller shall pay or cause to be paid to Buyer an amount equal to such error Final Deficit; and
(ii) if there is a Final Surplus, then Buyer shall pay to Seller an amount equal to such Final Surplus.
(g) All payments required under this Section 1.6 shall be made in cash by wire transfer of immediately available funds to such bank account(s) as shall be designated in writing by the recipient(s) at least three (3) Business Days prior to the other partyapplicable payment date.
Appears in 1 contract
Adjustment to Purchase Price. The final purchase price will be in an amount equal to Stockholders’ Equity at the Closing Date and will be determined as follows:
(a) The Closing Payment shall be increased by the parties' good faith estimate Company will prepare a balance sheet of the Current Assets of Seller and decreased by the parties' good faith estimate Company, in accordance with GAAP consistently applied, as of the Current Liabilities Closing Date, including a computation of Seller Stockholders’ Equity as of the Closing Date (the "“Closing Adjustment"), which adjustment shall be subject Date Balance Sheet”) and will deliver the Closing Date Balance Sheet to final adjustment as provided for in paragraph (c) below.
(b) No later than the Investors within sixty (60) days after the Closing Date. Such Closing Date Balance Sheet shall, or within three (3) days after receipt if the Labidi Matter and/or the ▇▇▇▇▇ Matter have not been resolved, include reserves reflecting the maximum potential liability of the necessary accounting data from the NRTC Central Billing SystemCompany in connection with any such unresolved matter. If, whichever is later, Purchaser shall make and deliver to Seller a balance sheet reflecting the Current Assets and Current Liabilities of Seller as within thirty days following delivery of the Closing Date (Balance Sheet to the "Investors, the Investors have not given the Company notice of their objection to the Closing Date Balance Sheet"Sheet (such notice must contain a statement of the basis of the Investors’ objection), prepared on a basis consistent with GAAP. For purposes of then the Closing Adjustment and the Final Closing Adjustment (as hereinafter defined), the amount of Accounts Receivable of Seller to be included Stockholders’ Equity reflected in the Closing Date Balance Sheet will be used in determining the purchase price. If the Investors give such notice of objection, then the Investors and the Company shall include only Accounts Receivable of Subscribers as reflected on Report 18A use reasonable efforts to resolve any such dispute. If the Company and the Investors are unable to finally resolve such dispute within ten (Subscriber Accounts Receivable Aging By Account10) days after the Company’s receipt of the NRTC Central Billing System Reports less a reserve Investors’ notice of six percent (6%) for Accounts Receivable which are not collectible. In additionobjection, then the Closing Date Balance Sheet dispute shall be resolved by an independent certified public accounting firm that is reasonably acceptable to the Company and the Final Closing Adjustment Investors (the "Independent Accounting Firm") considering recent past, current and anticipated future engagements. The Company and the Investors shall not include as a Current Asset any accounts receivable arising from Leased Subscriber Equipment. Purchaser may, by providing Seller with written notice at least five retain the Independent Accounting Firm within ten (510) days prior of the end of the ten (10) day period for the Company and Investors to the Closing, elect to purchase all, or certain of, the DSS(TM) subscriber equipment owned by Seller (other than Leased Subscriber Equipment) on the Closing Date; provided, however, Purchaser shall not have the right to acquire any assets attributable to Seller's Electric Businessresolve their dispute. Any such equipment which is purchased by Purchaser shall be included as Inventory in the Closing Date Balance Sheet. Except as set forth in this Section 4.4(b), no other assets or liabilities shall be included in the Closing Date Balance Sheet. Seller shall make available to Purchaser such documentation, back-up, invoices, and books and records of Seller as Purchaser may reasonably request.
(c) Seller and Purchaser shall negotiate in good faith to reconcile any discrepancies which may arise in connection with the The determination of the Closing Date Balance Sheet. If Seller and Purchaser are unable to reconcile such discrepancies, Seller shall have fifteen (15) days from presentment of the Closing Date Balance Sheet by Purchaser to notify Purchaser if Seller wishes to have Purchaser's determination examined. If Seller elects to have Purchaser's determination examined, it Independent Accounting Firm shall be made as promptly as practicable, but in no event more than 15 days after such matter(s) has been submitted to the determination in Atlanta, Georgia, by the Certified Public Independent Accounting firm of KMPG Peat Marwick (or any other independent Certified Public Accounting firm mutually acceptable to Seller and Purchaser), the cost of such examination to be paid fifty percent (50%) by Seller and fifty percent (50%) by Purchaser. The determination by Purchaser shall be final and binding on the parties unless Seller elects to have an examination as provided herein, in which case the results of the examination shall be made within thirty (30) days of such referralFirm, and shall be final and binding on the Company and the Investors. The fees and expenses of the Independent Accounting Firm shall be borne by the party found to be incorrect with regard to the objections. If both parties (are found to be partially incorrect with regard to the "Final Closing Adjustment")objections, then the fees and expenses of the Independent Accounting Firm shall be shared proportionately by the parties based upon the amount the objections successfully contested by the Investors bears to the total of the objected amounts submitted to the Independent Accounting Firm.
(db) To On the extent tenth business day following the Final final determination of the Stockholders’ Equity at the Closing Adjustment Date, if that amount is greater than the Initial Purchase Price, the Investors will pay the difference to the Company, and if the final Stockholders’ Equity at the Closing Date is less than the Closing AdjustmentInitial Purchase Price, Seller shall the Company will pay the difference to the Investors, based on the portion of the aggregate purchase price paid for the Common Stock by each Investor (as set forth on Exhibit A). All payments must be made in cash to Purchaser within five immediately available funds.
(5c) days after the final determination. In the event that the Final Closing Adjustment is greater Date Balance Sheet included additional reserves for the Labidi Matter or the ▇▇▇▇▇ Matter and if, prior to December 31, 2006, the Company subsequently resolves such matters for an amount or amounts less than the amounts reserved on the Closing AdjustmentDate Balance Sheet, Purchaser then the Investors shall pay such excess to the Company, in cash to Seller within five (5) days after the final determination. If, following any payment pursuant to this Section 4.4(d)form of additional purchase price, an error (in billing amount equal to the difference between the actual amount paid or reporting incurred by NRTC or otherwise) is thereafter discovered which would have affected the Final Closing Adjustment, the party in whose favor the error was made shall immediately pay in cash Company and the amount of the reserve in the Closing Date Balance Sheet, such error payment to be made within ten (10) days’ of receipt of written notice from the other partyCompany.
Appears in 1 contract
Adjustment to Purchase Price. (a) The Purchase Price shall be adjusted after the Interim Purchase Price Adjustment to reflect any difference between the Interim Adjusted Net Tangible Book Value and the Closing Payment Date Adjusted Net Tangible Book Value (the "Purchase Price Adjustment"). If the Closing Date 11 Adjusted Net Tangible Book Value is greater than the Interim Adjusted Net Tangible Book Value, the Purchase Price shall be increased by an amount equal to the parties' good faith estimate of the Current Assets of Seller and decreased amount by the parties' good faith estimate of the Current Liabilities of Seller as of which the Closing Date (Adjusted Net Tangible Book Value exceeds the "Interim Adjusted Net Tangible Book Value. If the Closing Adjustment")Date Adjusted Net Tangible Book Value is less than the Interim Adjusted Net Tangible Book Value, which adjustment the Purchase Price shall be subject decreased by an amount equal to final adjustment as provided for in paragraph (c) belowthe amount by which the Interim Adjusted Net Tangible Book Value exceeds the Closing Date Adjusted Net Tangible Book Value.
(b) No later than sixty On or before the date which is ninety (6090) days after the Closing Date, or within three Purchaser shall deliver to Seller the Audited Closing Balance Sheet (3) days after receipt together with the notes thereto and the related report of independent public accountants). Concurrently with its delivery of the necessary accounting data from the NRTC Central Billing System, whichever is laterAudited Closing Balance Sheet to Seller, Purchaser shall make and deliver to Seller a balance sheet reflecting the Current Assets and Current Liabilities of Seller as of the Closing Date statement (the "Closing Date Balance SheetPurchase Price Adjustment Statement"), prepared on a basis consistent with GAAP. For purposes of the Closing Adjustment and the Final Closing Adjustment (as hereinafter defined), ) setting forth the amount of Accounts Receivable any Purchase Price Adjustment. The fees, expenses and costs associated with the preparation of Seller to be included in the Audited Closing Date Balance Sheet shall include only Accounts Receivable be paid by Seller.
(i) Within fifteen (15) Business Days of Subscribers as reflected on Report 18A (Subscriber Accounts Receivable Aging By Account) Seller's receipt of the NRTC Central Billing System Reports less a reserve Purchase Price Adjustment Statement, Seller shall inform Purchaser in writing that either the Purchase Price Adjustment is acceptable or object to the Purchase Price Adjustment setting forth in reasonable detail the basis for such objection and Seller's calculation of six percent the Purchase Price Adjustment, if any (6%) for Accounts Receivable which are not collectible"Seller's Objection Notice"). In addition, Any item from the Audited Closing Date Balance Sheet and the Final Closing Purchase Price Adjustment Statement not expressly objected to in reasonable detail in Seller's Objection Notice shall not include as a Current Asset any accounts receivable arising from Leased Subscriber Equipment. Purchaser may, by providing Seller with written notice at least five (5) days prior be deemed to the Closing, elect to purchase all, or certain of, the DSS(TM) subscriber equipment owned have been accepted by Seller (other than Leased Subscriber Equipment) in all respects and become final and binding on the Closing Date; provided, however, Purchaser shall not have the right to acquire any assets attributable to Seller's Electric Business. Any such equipment which is purchased by Purchaser shall be included as Inventory in the Closing Date Balance Sheet. Except as set forth in this Section 4.4(b), no other assets or liabilities shall be included in the Closing Date Balance Sheet. Seller shall make available to Purchaser such documentation, back-up, invoices, and books and records of Seller as Purchaser may reasonably request.
(c) Seller and Purchaser shall negotiate in good faith to reconcile any discrepancies which may arise in connection with the determination of the Closing Date Balance Sheet. If Seller and Purchaser are unable fails to reconcile deliver Seller's Objection Notice within such discrepancies, Seller shall have fifteen (15) days from presentment of Business Day period, Seller shall be deemed to have accepted the Audited Closing Date Balance Sheet by Purchaser to notify Purchaser if Seller wishes to have Purchaser's determination examined. If Seller elects to have Purchaser's determination examinedand Purchase Price Adjustment Statement in all respects, it and they shall be submitted to the determination in Atlanta, Georgia, by the Certified Public Accounting firm of KMPG Peat Marwick (or any other independent Certified Public Accounting firm mutually acceptable to Seller and Purchaser), the cost of such examination to be paid fifty percent (50%) by Seller and fifty percent (50%) by Purchaser. The determination by Purchaser shall be become final and binding on Seller. Purchaser shall provide Seller's accountants with reasonable access to all personnel, books, accounting records and other material of the parties unless Company as Seller elects reasonably deems relevant to have an examination determining whether or not to accept the Purchase Price Adjustment. If Seller so requests, Purchaser shall request Deloitte & Touche, LLP to make its audit workpapers with respect to the Audited Closing Balance Sheet available to Seller's accountants.
(ii) If Seller objects as provided hereinin (i) above and if Purchaser does not agree with Seller's objections, in which case if any (it being agreed that the results failure of the examination Purchaser to deliver written notice to Seller of Purchaser's disagreement with any item of Seller's Objection Notice within fifteen (15) Business Days of Purchaser's receipt of Seller's Objection Notice shall be made deemed acceptance by Purchaser in all respects and such item shall become final and binding on Purchaser), or such objections are not resolved on a mutually agreeable basis within fifteen (15) Business Days after Purchaser's receipt of Seller's Objection Notice, any such disagreement shall be promptly submitted to a mutually acceptable accounting firm that has performed no services since January 1, 1998 for FBR, Seller, Purchaser, the Company or any of their respective Affiliates (the "Unaffiliated Firm"). The parties shall promptly submit to the Unaffiliated Firm all information reasonably requested by the Unaffiliated Firm to enable it to resolve the remaining objection(s) set forth in Seller's Objection Notice. The Unaffiliated Firm shall resolve in writing within thirty (30) days after its engagement by the parties the differences regarding the Audited Closing Balance Sheet and Purchase Price Adjustment Statement in accordance with GAAP and this Agreement; PROVIDED, HOWEVER, that in no event may the Closing Date Adjusted Net Tangible Book Value be an amount less than the amount proposed by Purchaser or greater than the amount proposed by Seller. The Unaffiliated Firm's determination of such referral, and the Purchase Price Adjustment shall be deemed final and binding on Seller and Purchaser.
(iii) The fees, expenses and costs of the parties Unaffiliated Firm incurred in connection with this SECTION 2.3 shall be paid as follows:
(A) if the Unaffiliated Firm resolves all remaining objections in favor of Purchaser's determination of the Closing Date Adjusted Net Tangible Book Value (the "Final Closing AdjustmentLow Value"), Seller will be responsible for all of the fees, expenses and costs of the Unaffiliated Firm;
(B) if the Unaffiliated Firm resolves all remaining objections in favor of Seller's determination of the Closing Date Adjusted Net Tangible Book Value (the "High Value"), Purchaser will be responsible for all of the fees, expenses and costs of the Unaffiliated Firm;
(C) if the Unaffiliated Firm resolves some of the remaining objections in favor of Purchaser and the other remaining objections in favor of Seller (Closing Date Adjusted Net Tangible Book Value so determined is referred to as the "Actual Value"), Seller will be responsible for that fraction of the fees, expenses and costs of the Unaffiliated Firm equal to (x) the difference between the High Value and the Actual Value divided by (y) the difference between the High Value and the Low Value, and Purchaser will be responsible for the remainder of the fees, expenses and costs of the Unaffiliated Firm.
(d) To the extent the Final Closing Adjustment is less than the Closing (i) The Purchase Price Adjustment, Seller if any, shall pay be payable by Purchaser or Seller, as the difference in cash to Purchaser case may be, within five ten (510) days Business Days after the final determinationdetermination of the Purchase Price Adjustment as provided above. In The Purchase Price Adjustment shall bear interest at an annual rate of seven and a half percent (7.5%) from the event day the Final parties agree upon the Interim Closing Adjustment is greater than Balance Sheet through the Closing Adjustment, Purchaser shall pay such excess in cash to Seller within five tenth (510th) days Business Day after the final determinationdetermination of the Purchase Price Adjustment. If, Any portion of the Purchase Price Adjustment that is not paid by the tenth (10) Business Days after the final determination of the Purchase Price Adjustment shall bear interest at an annual rate of ten percent (10%) from the day following any payment pursuant to this Section 4.4(d), an error (the tenth Business Day after the final determination of the Purchase Price Adjustment until the day the Purchase Price Adjustment is paid in billing or reporting by NRTC or otherwise) is thereafter discovered which would have affected the Final Closing Adjustment, the party in whose favor the error was made shall immediately pay in cash the amount of such error to the other partyfull.
Appears in 1 contract
Adjustment to Purchase Price. (a) The Closing Payment At the Closing, in order to calculate the Initial Payment, the Purchase Price shall be increased by subject to adjustment based on the parties' good faith estimate estimated Tangible Net Worth of the Current Assets of Seller Company and decreased by the parties' good faith estimate of the Current Liabilities of Seller its Subsidiaries as of 7:00 a.m., Eastern Standard time, on the Closing Date (the "“Closing Time”) immediately prior to giving effect to the Closing (the “Estimated Closing Date Tangible Net Worth”). A written statement setting forth the Sellers’ good faith calculation of the Estimated Closing Date Tangible Net Worth shall be provided by the Seller Representatives to the Buyer no later than the close of business of the third business day preceding the Closing Date.
(b) If the Estimated Closing Date Tangible Net Worth is less than the Target Tangible Net Worth, the Purchase Price shall be reduced by an amount equal to such deficiency. If the Estimated Closing Date Tangible Net Worth is greater than the Target Tangible Net Worth, the Purchase Price shall be increased by such excess. The adjustment made pursuant to this paragraph (b) is referred to herein as the “Initial Adjustment")”, which adjustment and shall be subject to final subsequent adjustment as provided for in paragraph paragraphs (c), (d) and (e) below.
(bc) No later than sixty Within ninety (6090) days after the Closing Date, the Buyer shall prepare, at the Buyer’s expense, and deliver to the Seller Representatives, (i) a consolidated balance sheet of the Company and its Subsidiaries as of the close of business on the Closing Date, immediately prior to giving effect to the Closing, prepared in accordance with United States generally accepted accounting principles (“GAAP”) applied on a basis consistent with the Most Recent Audited Balance Sheet (as defined in Section 3.6) (except (A) for the absence of footnotes, (B) with respect to those leases (if any) referred to therein, as provided in the last sentence of the definition of “Indebtedness”, and (C) that the Company’s accruals for current Income Tax liabilities for the period commencing on January 1, 2003 and ending on the Closing Date (the “Stub Period”) shall be zero, reflecting the Escrowing Sellers’ assumption of and agreement to pay such liabilities in accordance with Sections 10.3 and 12.1(a)(ii) below), and (ii) a consolidated statement of the Tangible Net Worth of the Company and its Subsidiaries as of the Closing Time, immediately prior to giving effect to the Closing, prepared in accordance with GAAP applied on a basis consistent with the past accounting practices of the Company used to prepare the Most Recent Audited Balance Sheet, subject to the exceptions referred to in clause (i) above (together with the balance sheet referred to in clause (i) above, the “Final Closing Statement”). The Buyer’s accountants shall consult with the Seller Representatives’ accountants in connection with the preparation of the Final Closing Statement, and shall permit the Seller Representatives’ accountants at the earliest practicable date to review and make copies of all work papers, schedules and calculations used in the preparation thereof; provided, however, that the Seller Representatives shall execute any waivers, releases and indemnification agreements requested by the Buyer’s or the Company’s accountants in connection therewith.
(d) When the Buyer delivers the Final Closing Statement, the Buyer shall also deliver to the Seller Representatives a certificate (i) certifying that the Final Closing Statement was prepared in accordance with the procedures set forth in Section 1.2(c) above, and (ii) containing the Buyer’s calculations (the “Buyer’s Proposed Calculations”), based on the Final Closing Statement, of the Tangible Net Worth of the Company and its Subsidiaries as of the Closing Date immediately prior to the Closing (the “Closing Date Tangible Net Worth”). Buyer’s Proposed Calculations shall become final and binding unless, within three thirty (330) days after receipt of the necessary accounting data from Final Closing Statement and the NRTC Central Billing Systemaccompanying certificate, whichever is laterthe Seller Representatives shall notify the Buyer in writing of their agreement or disagreement with the Final Closing Statement and the accuracy of any of the Buyer’s Proposed Calculations. If the Seller Representatives dispute any aspect of any of the Buyer’s Proposed Calculations, Purchaser then the Seller Representatives shall make have the right to direct their independent accountants, at the Escrowing Sellers’ expense, to review and deliver to verify the accuracy of the Final Closing Statement. The Seller a balance sheet reflecting Representatives’ accountants shall complete their review and verification of such matters within thirty (30) days after the Current Assets date the Seller Representatives dispute any of the Buyer’s Proposed Calculations and, if the Seller Representatives and Current Liabilities their independent accountants, after such review and test, still disagree with any of the Buyer’s Proposed Calculations, the Seller as Representatives shall submit the Escrowing Sellers’ proposed alternative calculations (the “Sellers’ Proposed Calculations”) of the Closing Date Tangible Net Worth to the Buyer in writing within forty-five (45) days after the date upon which the Seller Representatives shall have notified the Buyer that they dispute any of the Buyer’s Proposed Calculations. If the Buyer does not accept the Sellers’ Proposed Calculations within fifteen (15) days of its receipt thereof, then within fifteen (15) days after the Buyer’s rejection of (or failure to timely accept) the Sellers’ Proposed Calculations, the Seller Representatives and the Buyer shall select a mutually acceptable and nationally recognized independent accounting firm, other than the Seller Representatives’ independent accountants and the Buyer’s independent accountants (such firm, the “Independent Accounting Firm”), to resolve the remaining disputed items (the "Closing Date Balance Sheet"“Remaining Disputed Items”), prepared on a basis consistent with GAAP. For purposes within thirty (30) days after the date of the Buyer’s rejection of (or failure to timely accept) the Sellers’ Proposed Calculations of the Remaining Disputed Items, by conducting its own review and verification of the Final Closing Statement and thereafter selecting either the Sellers’ Proposed Calculations of the Remaining Disputed Items or the Buyer’s Proposed Calculations of the Remaining Disputed Items or an amount in between the two. Each of the Escrowing Sellers and the Buyer agrees that they shall be bound by the determination of the Remaining Disputed Items by the Independent Accounting Firm. The fees and expenses of the Independent Accounting Firm shall be paid jointly, one-half by the Escrowing Sellers and one-half by the Buyer, provided that if the difference between the Final Adjustment (as defined below) and the Final Adjustment that would have resulted from the use of the proposed calculations of one of the parties hereto (the “Erroneous Party”) is more than twice as great as the difference between the Final Adjustment and the Final Adjustment that would have resulted from the use of the other party’s proposed calculations, the Erroneous Party shall pay all of the fees and expenses of the Independent Accounting Firm.
(e) Upon the determination, in accordance with Sections 1.2(c) and 1.2(d) above, of the Final Closing Adjustment Statement and the Closing Date Tangible Net Worth, the Purchase Price shall be recalculated pursuant to Sections 1.1(a) and 1.2(b) above, using the amounts determined pursuant to Sections 1.2(c) and 1.2(d) above in lieu of the estimated amounts used in the Initial Adjustment. If the Purchase Price as adjusted pursuant to this paragraph (e) (the “Final Adjustment”) is over $100,000 greater than the Purchase Price as hereinafter defined)adjusted pursuant to the Initial Adjustment, the Buyer shall pay to the Seller Representatives, for further distribution to the Escrowing Sellers, the amount of Accounts Receivable of by which the Purchase Price as adjusted pursuant to the Final Adjustment is greater than the Purchase Price as adjusted pursuant to the Initial Adjustment. If the Purchase Price as adjusted pursuant to the Final Adjustment (i) is between $100,000 and $200,000 less than the Purchase Price as adjusted pursuant to the Initial Adjustment, the Seller Representatives shall deliver to be included in the Closing Date Balance Sheet Escrow Agent a written instruction directing the Escrow Agent to pay to the Buyer from the Adjustment Escrowed Funds the amount by which the Purchase Price as adjusted pursuant to the Final Adjustment is less than the Purchase Price as adjusted pursuant to the Initial Adjustment, and (ii) is more than $200,000 less than the Purchase Price as adjusted pursuant to the Initial Adjustment, (A) the Seller Representatives shall include only Accounts Receivable of Subscribers as reflected on Report 18A (Subscriber Accounts Receivable Aging By Account) deliver to the Escrow Agent a written instruction directing the Escrow Agent to pay to the Buyer all of the NRTC Central Billing System Reports less a reserve of six percent Adjustment Escrowed Funds and (6%B) for Accounts Receivable which are not collectible. In addition, the Closing Date Balance Sheet and the Final Closing Adjustment Buyer shall not include as a Current Asset any accounts receivable arising from Leased Subscriber Equipment. Purchaser may, by providing Seller with written notice at least five (5) days prior to the Closing, elect to purchase all, or certain of, the DSS(TM) subscriber equipment owned by Seller (other than Leased Subscriber Equipment) on the Closing Date; provided, however, Purchaser shall not have the right to acquire (1) offset against any assets attributable amounts payable by the Buyer to Seller's Electric Business. Any the Escrowing Sellers pursuant to Section 10.3 the amount (such equipment amount the “Final Adjustment Deficiency Amount”) equal to the difference between (aa) the amount by which the Purchase Price as adjusted pursuant to the Final Adjustment is purchased by Purchaser shall be included less than the Purchase Price as Inventory adjusted pursuant to the Initial Adjustment and (bb) $200,000 (such $200,000 representing the Adjustment Escrowed Funds distributed to the Buyer pursuant to clause (ii)(A) above), (2) require the Seller Representatives to deliver to the Escrow Agent a written instruction directing the Escrow Agent to pay to the Buyer the Final Adjustment Deficiency Amount from the Indemnity Escrowed Funds, (3) demand payment from each Escrowing Seller for its, his or her Adjusted Pro Rata Share of the Final Adjustment Deficiency Amount, or (4) pursue payment of the Final Adjustment Deficiency Amount through any combination of the mechanisms described in the Closing Date Balance Sheetforegoing clauses (1) through (3). Except as set forth in clause (ii)(B) above, any payment under this Section 4.4(b), no other assets or liabilities paragraph (e) shall be included made in the Closing Date Balance Sheet. Seller shall make available to Purchaser such documentation, back-up, invoices, and books and records of Seller as Purchaser may reasonably request.
cash or same day funds within ten (c10) Seller and Purchaser shall negotiate in good faith to reconcile any discrepancies which may arise in connection with days after the determination of the Closing Date Balance Sheet. If Seller and Purchaser are unable to reconcile such discrepancies, Seller shall have fifteen (15) days from presentment of the Closing Date Balance Sheet by Purchaser to notify Purchaser if Seller wishes to have Purchaser's determination examined. If Seller elects to have Purchaser's determination examined, it shall be submitted to the determination in Atlanta, Georgia, by the Certified Public Accounting firm of KMPG Peat Marwick (or any other independent Certified Public Accounting firm mutually acceptable to Seller and Purchaser), the cost of such examination to be paid fifty percent (50%) by Seller and fifty percent (50%) by Purchaser. The determination by Purchaser shall be final and binding on the parties unless Seller elects to have an examination as provided herein, in which case the results of the examination shall be made within thirty (30) days of such referral, and shall be final and binding on the parties (the "Final Closing Adjustment").
(d) To the extent the Final Closing Adjustment is less than the Closing Adjustment, Seller shall pay the difference in cash to Purchaser within five (5) days after the final determination. In the event the Final Closing Adjustment is greater than the Closing Adjustment, Purchaser shall pay such excess in cash to Seller within five (5) days after the final determination. If, following any payment pursuant to this Section 4.4(dparagraph (e), an error (in billing or reporting by NRTC or otherwise) is thereafter discovered which would have affected the Final Closing Adjustment, the party in whose favor the error was made shall immediately pay in cash the amount of such error to the other party.
Appears in 1 contract
Adjustment to Purchase Price. The amount of timber contemplated to be harvested from the Timberlands by Seller during Seller's fiscal year commencing October 1, 1997 is set forth on a harvesting forecast (a"1998 Harvesting Forecast") The and the amount of timber contemplated to be harvested by Seller during Seller's fiscal year commencing October 1, 1998 is set forth on a harvesting forecast ("1999 Harvesting Forecast"), and each is attached hereto as Schedule 2.2. Immediately following the Closing Payment Date, Purchaser and its accountants shall be increased provided with reasonable access to all of Seller's books, records, accounting and other documents reasonably necessary to confirm the actual amount of timber harvested from the period commencing October 1, 1997 through the Closing Date. In the event that, based upon Purchaser's review of such books, records and documents, Purchaser determines that (i) the actual amount of timber harvested (by volume, product mix or method (clear cut and partial harvest)) until the parties' good faith estimate date hereof exceeded the amount contemplated to be harvested pursuant to the 1998 Harvesting Forecast by more than five percent (5%), or (ii) the actual amount of timber harvested by volume or method (clear cut and partial harvests) from the date hereof until the Closing Date exceeded the amount contemplated to be harvested pursuant to the 1999 Harvesting Forecast by more than one percent (1%), Purchaser shall submit a harvesting report ("Harvesting Report") to Seller setting forth the basis for this determination. Seller shall have 10 days to review the Harvesting Report and to deliver a notice of any dispute regarding the determination made by Purchaser ("Harvesting Dispute Notice"). In the event that Seller does not deliver a Harvesting Dispute Notice within such period, the Harvesting Report shall be deemed accepted by Seller, and Seller shall pay to Purchaser, within two (2) business days of the Current Assets expiration of Seller and decreased by such review period, an amount equal to the parties' good faith estimate fair market value of the Current Liabilities of Seller such excess harvested timber as of the Closing Date (the "Closing Adjustment"based on volume, product mix or method (clear cut and partial harvest), which adjustment shall be subject to final adjustment as provided for in paragraph (c) below.
(b) No later than sixty (60) days after the Closing Date, or within three (3) days after receipt offset by any undercut of the necessary accounting data from the NRTC Central Billing System, whichever is later, Purchaser shall make and deliver to Seller a balance sheet reflecting the Current Assets and Current Liabilities of Seller as of the Closing Date (the "Closing Date Balance Sheet"), prepared on a basis consistent with GAAPproduct mix. For purposes of the Closing Adjustment and the Final Closing Adjustment (as hereinafter defined), the amount of Accounts Receivable of Seller to be included in the Closing Date Balance Sheet shall include only Accounts Receivable of Subscribers as reflected on Report 18A (Subscriber Accounts Receivable Aging By Account) of the NRTC Central Billing System Reports less a reserve of six percent (6%) for Accounts Receivable which are not collectible. In addition, the Closing Date Balance Sheet and the Final Closing Adjustment shall not include as a Current Asset any accounts receivable arising from Leased Subscriber Equipment. Purchaser may, by providing Seller with written notice at least five (5) days prior to the Closing, elect to purchase all, or certain of, the DSS(TM) subscriber equipment owned by Seller (other than Leased Subscriber Equipment) on the Closing Date; provided, however, Purchaser shall not have the right to acquire any assets attributable to Seller's Electric Business. Any such equipment which is purchased by Purchaser shall be included as Inventory in the Closing Date Balance Sheet. Except as set forth in this Section 4.4(b), no other assets or liabilities shall be included in the Closing Date Balance Sheet. Seller shall make available to Purchaser such documentation, back-up, invoices, and books and records of Seller as Purchaser may reasonably request.
(c) Seller and Purchaser shall negotiate in good faith to reconcile any discrepancies which may arise in connection with the determination of the Closing Date Balance Sheet. If Seller and Purchaser are unable to reconcile such discrepancies, Seller shall have fifteen (15) days from presentment of the Closing Date Balance Sheet by Purchaser to notify Purchaser if Seller wishes to have Purchaser's determination examined. If Seller elects to have Purchaser's determination examined, it shall be submitted to the determination in Atlanta, Georgia, by the Certified Public Accounting firm of KMPG Peat Marwick (or any other independent Certified Public Accounting firm mutually acceptable to Seller and Purchaser), the cost of such examination to be paid fifty percent (50%) by Seller and fifty percent (50%) by Purchaser. The determination by Purchaser shall be final and binding on the parties unless Seller elects to have an examination as provided herein, in which case the results of the examination Such payment shall be made within thirty (30) days by wire transfer of such referral, and shall be final and binding on the parties (the "Final Closing Adjustment")immediately available funds in U.S. dollars.
(d) To the extent the Final Closing Adjustment is less than the Closing Adjustment, Seller shall pay the difference in cash to Purchaser within five (5) days after the final determination. In the event the Final Closing Adjustment is greater than the Closing Adjustment, Purchaser shall pay such excess in cash to Seller within five (5) days after the final determination. If, following any payment pursuant to this Section 4.4(d), an error (in billing or reporting by NRTC or otherwise) is thereafter discovered which would have affected the Final Closing Adjustment, the party in whose favor the error was made shall immediately pay in cash the amount of such error to the other party.
Appears in 1 contract
Sources: Purchase and Sale Agreement (Plum Creek Timber Co L P)
Adjustment to Purchase Price. Within 2 Business Days following determination of the 1999 EBITDA (aeither by agreement or by arbitration, as the case may be) The Closing Payment an adjustment to the Purchase Price shall be increased by the parties' good faith estimate of the Current Assets of Seller and decreased by the parties' good faith estimate of the Current Liabilities of Seller made as of the Closing Date (the "Closing Adjustment"), which adjustment shall be subject to final adjustment as provided for in paragraph (c) belowfollows.
(bi) No later If the Adjusted Purchase Price shall be less than sixty (60) days after the Closing DatePurchase Price, or within three (3) days after receipt Sellers and Purchaser shall deliver appropriate written notice to the Escrow Agent and the Escrow Agent shall, in accordance with the terms of the necessary accounting data from Escrow Agreement, pay such difference between the NRTC Central Billing SystemAdjusted Purchase Price and the Purchase Price, whichever plus the interest earned on such amount, if any, under the Escrow Agreement, to Purchaser out of the Holdback Amount and the remainder of the Holdback Amount, if any, shall be paid to the Sellers, including the interest earned on such amount. In the event that such difference between the Adjusted Purchase Price and the Purchase Price is latergreater than the Holdback Amount, the Sellers shall pay an amount equal to the amount by which such difference exceeds the Holdback Amount to Purchaser by certified or bank cashiers check or by wire transfer of funds to the account(s) designated by Purchaser.
(ii) If the Adjusted Purchase Price shall be equal to or greater than the Purchase Price, Sellers and Purchaser shall make deliver appropriate written notice to the Escrow Agent and deliver to Seller a balance sheet reflecting the Current Assets and Current Liabilities of Seller as Escrow Agent shall, in accordance with the terms of the Closing Date (Escrow Agreement, pay the "Closing Date Balance Sheet")entire Holdback Amount, prepared plus interest earned on a basis consistent with GAAP. For purposes of such amount, to the Closing Adjustment and the Final Closing Adjustment (as hereinafter defined), the amount of Accounts Receivable of Seller to be included in the Closing Date Balance Sheet shall include only Accounts Receivable of Subscribers as reflected on Report 18A (Subscriber Accounts Receivable Aging By Account) of the NRTC Central Billing System Reports less a reserve of six percent (6%) for Accounts Receivable which are not collectibleSellers. In addition, if the Closing Date Balance Sheet and the Final Closing Adjustment shall not include as a Current Asset any accounts receivable arising from Leased Subscriber Equipment. Purchaser may, by providing Seller with written notice at least five (5) days prior to the Closing, elect to purchase all, or certain of, the DSS(TM) subscriber equipment owned by Seller (other than Leased Subscriber Equipment) on the Closing Date; provided, however, Purchaser shall not have the right to acquire any assets attributable to Seller's Electric Business. Any such equipment which is purchased by Purchaser Adjusted Purchase Price shall be included as Inventory in the Closing Date Balance Sheet. Except as set forth in this Section 4.4(b), no other assets or liabilities shall be included in the Closing Date Balance Sheet. Seller shall make available to Purchaser such documentation, back-up, invoices, and books and records of Seller as Purchaser may reasonably request.
(c) Seller and Purchaser shall negotiate in good faith to reconcile any discrepancies which may arise in connection with the determination of the Closing Date Balance Sheet. If Seller and Purchaser are unable to reconcile such discrepancies, Seller shall have fifteen (15) days from presentment of the Closing Date Balance Sheet by Purchaser to notify Purchaser if Seller wishes to have Purchaser's determination examined. If Seller elects to have Purchaser's determination examined, it shall be submitted to the determination in Atlanta, Georgia, by the Certified Public Accounting firm of KMPG Peat Marwick (or any other independent Certified Public Accounting firm mutually acceptable to Seller and Purchaser), the cost of such examination to be paid fifty percent (50%) by Seller and fifty percent (50%) by Purchaser. The determination by Purchaser shall be final and binding on the parties unless Seller elects to have an examination as provided herein, in which case the results of the examination shall be made within thirty (30) days of such referral, and shall be final and binding on the parties (the "Final Closing Adjustment").
(d) To the extent the Final Closing Adjustment is less than the Closing Adjustment, Seller shall pay the difference in cash to Purchaser within five (5) days after the final determination. In the event the Final Closing Adjustment is greater than the Closing AdjustmentPurchase Price, Purchaser shall pay such excess in cash to Seller within five (5) days after the final determination. If, following any payment pursuant to this Section 4.4(d), an error (in billing or reporting by NRTC or otherwise) is thereafter discovered which would have affected the Final Closing Adjustment, the party in whose favor the error was made shall immediately pay in cash the amount of such error to the other partySellers such difference between the Adjusted Purchase Price and the Purchase Price, by certified or bank cashiers check or by wire transfer of funds to the account(s) designated by the Sellers.
Appears in 1 contract
Adjustment to Purchase Price. (a) The Closing Payment shall be increased by No later than the parties' good faith estimate close of business of the Current Assets of sixth (6th) Business Day preceding the Closing Date, the Seller shall prepare in good faith, at the Seller’s expense, and decreased by deliver to the parties' good faith estimate Buyer a written statement setting forth: (i) a balance sheet of the Current Liabilities Company (the “Preliminary Balance Sheet”), (ii) the Seller’s good-faith calculations (in reasonable detail) of Seller the estimated Net Working Capital of the Company (the “Estimated Closing Date Net Working Capital”) and the estimated Net Indebtedness of the Company (the “Estimated Closing Date Net Indebtedness”) and (iii) on the basis of the foregoing, a calculation of the Estimated Closing Date Consideration (together with the balance sheet referred to in clause (i) and the calculations referred to in clause (ii) above, the “Preliminary Closing Statement”), in each case, (x) as of the close of business on the Closing Date without giving effect to the payments to be made in connection with the Closing and (y) in the "case of the Preliminary Balance Sheet and the calculation of Estimated Closing Adjustment"Date Net Working Capital, prepared in accordance with the Accounting Policies. When the Seller delivers the Preliminary Closing Statement, the Seller shall also deliver to the Buyer a certificate signed by the Chief Financial Officer of the Seller, acting in such capacity, certifying that the Preliminary Closing Statement was prepared in accordance with the procedures set forth in this Section 1.2(a). In the event that Buyer notifies the Seller of any objection (which objections, if any, may reference only disagreements (A) based on mathematical errors or (B) regarding whether the Estimated Closing Date Consideration, or the components thereof, as reflected on the Preliminary Closing Statement were calculated in accordance with this Section 1.2 and the applicable definitions) to the Preliminary Closing Statement no later than four (4) Business Days prior to the Closing Date, Buyer and the Seller shall discuss such objections in good faith and the Seller will, in good faith and after taking into account the discussion between the Seller and the Buyer, revise and re-deliver the Preliminary Closing Statement no later than three (3) Business Days prior to Closing to reflect the results of such discussion (which adjustment revised and redelivered Preliminary Closing Statement shall be subject to final adjustment serve as provided the Preliminary Closing Statement for all purposes under this Agreement). Seller shall, and shall cause the Company to, promptly provide all supporting documentation reasonably requested by the Buyer in paragraph (c) belowconnection with the Buyer and Parent’s review of the Preliminary Closing Statement.
(b) No later The “Estimated Closing Date Consideration” shall be equal to (i) the Enterprise Value, minus (ii) the Estimated Closing Date Net Indebtedness, minus (iii) the amount, if any, by which the Estimated Closing Date Net Working Capital is less than sixty the Target Net Working Capital, plus (60iv) the amount, if any, by which the Estimated Closing Date Net Working Capital is greater than the Target Net Working Capital, each as calculated by the Seller pursuant to the Preliminary Closing Statement.
(c) Within forty-five (45) days after the Closing Date, the Buyer shall prepare or within three (3) days after receipt of cause to be prepared, at the necessary accounting data from the NRTC Central Billing SystemBuyer’s expense, whichever is later, Purchaser shall make and deliver to the Seller a written statement setting forth, (i) a balance sheet reflecting of the Current Assets Company (the “Closing Balance Sheet”), (ii) the Buyer’s good faith calculations in reasonable detail of the Net Working Capital of the Company (the “Closing Date Net Working Capital”) and Current Liabilities the Net Indebtedness of Seller as the Company (the “Closing Date Net Indebtedness”) and (iii) on the basis of the foregoing, a calculation of the Closing Date Consideration (together with the "balance sheet referred to in clause (i) above and the calculations referred to in clause (ii) above, the “Final Closing Statement”), in each case, (x) as of the close of business on the Closing Date Balance Sheet"), prepared on a basis consistent without giving effect to the payments to be made in connection with GAAP. For purposes the Closing and (y) in the case of the Closing Adjustment Balance Sheet and Closing Date Net Working Capital, prepared in accordance with the Accounting Policies. In the event that the Buyer shall fail to deliver the Final Closing Adjustment Statement within the 45-day period provided in this paragraph (c), at the Seller’s option, the Preliminary Closing Statement delivered in accordance with Section 1.2(a) will be treated as the Final Closing Statement for all purposes hereof.
(as hereinafter definedd) When the Buyer delivers the Final Closing Statement, the Buyer shall also deliver to the Seller a certificate signed by an executive officer of the Buyer, acting in such capacity, certifying that the Final Closing Statement was prepared in accordance with the procedures set forth in Section 1.2(c) above. During the forty-five (45)-day period immediately following the Seller’s receipt of the Final Closing Statement, or in the event Buyer fails to deliver the Final Closing Statement within the forty-five (45)-day period provided in Section 1.2(c), the amount forty-five (45)-day period immediately following the expiration of Accounts Receivable of Seller to be included in the Closing Date Balance Sheet shall include only Accounts Receivable of Subscribers as reflected on Report 18A such forty-five (Subscriber Accounts Receivable Aging By Account) of the NRTC Central Billing System Reports less a reserve of six percent (6%) for Accounts Receivable which are not collectible. In addition45)-day period, the Closing Date Balance Sheet Seller and its representatives (i) will be permitted to review, during normal business hours and upon reasonable notice, the Company’s books and records and, subject to execution of customary access letters with respect thereto, the working papers related to the preparation of the Final Closing Adjustment shall not include as a Current Asset any accounts receivable arising Statement (including the determinations included therein), and (ii) will be given reasonable access, during normal business hours and upon reasonable notice, to knowledgeable employees of the Company in order to facilitate the Seller’s review of the Final Closing Statement. The Final Closing Statement (including the determinations included therein) will become final, binding and conclusive upon the Buyer and the Seller (a) on the forty-fifth (45th) day following the Seller’s receipt thereof unless the Buyer receives from Leased Subscriber Equipment. Purchaser may, by providing the Seller with prior to such forty-fifth (45th)-day written notice at least five of the Seller’s disagreement (5a “Dispute Notice”) days prior to with any amount or determination set forth in the Closing, elect to purchase allFinal Closing Statement, or certain of(b) on such earlier date as the Seller notifies the Buyer that it does not dispute the Final Closing Statement. Any Dispute Notice will specify in reasonable detail the nature and dollar amount of any disagreement so asserted (collectively, the DSS(TM“Disputed Items”) subscriber equipment owned by and contain reasonably detailed supporting documentation. Seller shall be deemed to have agreed with all other items and amounts contained in the Final Closing Statement other than the Disputed Items, which items and amounts (other than Leased Subscriber EquipmentDisputed Items) on the Closing Date; provided, however, Purchaser shall not have the right to acquire any assets attributable to Seller's Electric Business. Any such equipment which is purchased by Purchaser shall be included as Inventory in final, binding and conclusive for all purposes hereunder. If the Closing Date Balance Sheet. Except as set forth in this Section 4.4(b)Seller timely delivers a Dispute Notice, no other assets or liabilities shall be included in the Closing Date Balance Sheet. Seller shall make available to Purchaser such documentation, back-up, invoices, and books and records of Seller as Purchaser may reasonably request.
(c) Seller and Purchaser shall negotiate in good faith to reconcile any discrepancies which may arise in connection with then the determination of the Closing Date Balance SheetConsideration (in accordance with the resolution described in clause (x) or (y) below, as applicable) will become final, binding and conclusive upon the Buyer and the Seller on the first to occur of (x) the date on which the Buyer and the Seller resolve in writing all differences they have with respect to the Disputed Items or (y) the date on which all of the Disputed Items that are not resolved by the Buyer and the Seller in writing are finally resolved in writing by the Independent Accountants in accordance with Section 1.2(e). If Seller and Purchaser are unable to reconcile such discrepancies, Seller shall have fifteen Any Dispute Notice may reference only disagreements (15I) days from presentment of based on mathematical errors or (II) regarding whether the Closing Date Balance Sheet by Purchaser to notify Purchaser if Seller wishes to have Purchaser's determination examined. If Seller elects to have Purchaser's determination examinedConsideration, it shall be submitted to or the determination in Atlantacomponents thereof, Georgia, by the Certified Public Accounting firm of KMPG Peat Marwick (or any other independent Certified Public Accounting firm mutually acceptable to Seller and Purchaser), the cost of such examination to be paid fifty percent (50%) by Seller and fifty percent (50%) by Purchaser. The determination by Purchaser shall be final and binding as reflected on the parties unless Seller elects to have an examination as provided herein, Final Closing Statement were calculated in which case accordance with this Section 1.2 and the results of applicable definitions.
(e) During the examination shall be made within thirty (30) days following delivery of a Dispute Notice, the Buyer and the Seller will seek in good faith to resolve in writing any differences that they have with respect to all of the Disputed Items. Any Disputed Item resolved in writing by the Buyer and the Seller will be deemed final, binding and conclusive on the Buyer and the Seller. If the Buyer and the Seller do not reach agreement on all of the Disputed Items during such 30-day period (or such longer period as they shall mutually agree), then at the end of such referral30-day (or such longer) period the Buyer and the Seller will submit all unresolved Disputed Items (collectively, the “Unresolved Items”) to Deloitte LLP or, if such firm is unwilling or unable to serve, such other independent national accounting firm as the parties hereto may reasonably agree (the “Independent Accountants”) to review and resolve such matters. In making such determination, the Independent Accountants shall consider only the Unresolved Items and shall base its determination solely on the definitions and other applicable provisions of this Agreement (and not on independent review). In resolving any Unresolved Item, the Independent Accountants shall limit their determination to selecting whether the Buyer’s proposed amount for such item in the Final Closing Statement or the Seller’s proposed amount for such item in the Dispute Notice is calculated more nearly in accordance with this Agreement. The proposed amount so selected by the Independent Accountants shall, for purposes of this Agreement, be the Independent Accountants’ determination of such Unresolved Item, and the Independent Accountants shall deliver a written report setting forth such determination (and the basis therefor), as promptly as may be reasonably practicable, and the Buyer and the Seller will instruct the Independent Accountants to endeavor to complete such process within a period of no more than thirty (30) days following the appointment of the Independent Accountants; provided that the failure of the Independent Accountants to do so within such thirty (30) day period shall not render the determination of the Independent Accountant invalid and shall not serve as a basis for seeking to overturn any determination of the Independent Accountant. The Independent Accountants may conduct such proceedings as the Independent Accountants believe, in their sole discretion, will assist in such determination with respect to the Unresolved Items; provided, however, that, except as the Buyer and the Seller may otherwise agree, (i) the Independent Accountants shall not be entitled to hold any hearings or take or order the taking of any depositions or other testimony under oath and (ii) all communications between the Buyer and the Seller or any of their respective representatives, on the one hand, and the Independent Accountants, on the other hand, will be in writing with copies simultaneously delivered to the non-communicating party. The Independent Accountants’ determination of the Unresolved Items will be final, binding and conclusive on the Buyer and the Seller, effective as of the date the Independent Accountants’ written determination is received by the Buyer and the Seller, absent fraud or manifest error. Each of the Buyer and the Seller will bear its own legal, accounting and other fees and expenses of participating in such dispute resolution procedure. The fees and expenses of the Independent Accountants shall be final paid jointly, one-half by the Seller and binding on one-half by the parties (the "Final Closing Adjustment")Buyer.
(df) To Upon the extent determination, in accordance with Sections 1.2(c), (d) and (e) above, of the Final Closing Adjustment Statement and the Closing Date Net Working Capital, the Closing Date Net Indebtedness and the Closing Date Consideration, the Purchase Price shall be adjusted, upwards or downwards, as follows: (i) if the Estimated Closing Date Consideration is greater than the Closing Date Consideration as finally determined pursuant to this Section 1.2, then the Seller shall pay the amount of such excess to the Buyer, and (ii) if the Estimated Closing Date Consideration is less than the Closing AdjustmentDate Consideration as finally determined pursuant to this Section 1.2, Seller then the Buyer shall pay the difference amount of such deficiency to the Seller. Any payment under this Section 1.2(f) shall be made in cash to Purchaser cash, without interest, within five three (53) days Business Days after the final determination. In the event the Final Closing Adjustment is greater than determination of the Closing AdjustmentDate Consideration pursuant to this Section 1.2, Purchaser with any required payment by the Seller being made by release of the Holdback Funds in such amount to the Buyer. Notwithstanding the foregoing, Buyer shall pay such excess in cash not be required to Seller within five (5) days after the final determination. If, following make any payment pursuant to this Section 4.4(d)1.2(f) in excess of $7,000,000.
(g) For the avoidance of doubt, an error any amounts payable to Seller hereunder (in billing including any amounts payable pursuant to Section 1.2(f) or reporting by NRTC or otherwiseupon any release of Holdback Funds) is thereafter discovered which would have affected shall be net of any Transaction Expenses that arise as a result of the Final Closing Adjustment, the party in whose favor the error was made shall immediately pay in cash the amount payment of such error to the other partyamounts.
Appears in 1 contract
Adjustment to Purchase Price. (a) Seller has delivered to Purchaser the Seller Balance Sheet. Following the Closing Date, and in any event not later than thirty (30) days thereafter, Purchaser shall deliver to Seller the Purchaser Balance Sheet. The Closing Payment Purchaser Balance Sheet shall attach Purchaser's calculation of the Purchase Price Adjustment in accordance with the provisions of this Section 2.9. Seller and its advisors shall be increased entitled to review all work papers and other supporting documentation used by Purchaser in or relevant to the parties' good faith estimate creation of the Current Assets of Seller and decreased by the parties' good faith estimate of the Current Liabilities of Seller as of the Closing Date (the "Closing Adjustment"), which adjustment shall be subject to final adjustment as provided for in paragraph (c) belowPurchaser Balance Sheet.
(b) No later than sixty The Purchaser Balance Sheet shall become the Effective Balance Sheet for purposes of calculating the Purchase Price Adjustment under this Section 2.9 thirty (6030) days after the Closing Date, or within three (3) days after receipt of the necessary accounting data from the NRTC Central Billing System, whichever is later, Purchaser shall make and deliver delivery thereof to Seller a balance sheet reflecting the Current Assets and Current Liabilities of unless Seller as of the Closing Date within such time period delivers written notice to Purchaser (the "Closing Date Objection Notice") of its disagreement as to the value of any item included in the Purchaser Balance Sheet or in Purchaser's calculation of the Purchase Price Adjustment. Any Objection Notice shall specify in reasonable detail the nature of such disagreement and the basis and supporting evidence for Seller's position with respect to the disputed items. Seller and Purchaser shall attempt in good faith to resolve any disagreement for a period of 30 days following the date of the Notice and develop an Effective Balance Sheet. If they are unable to do so within such period, they shall submit the disputed items to a nationally-recognized accounting firm not affiliated with either Purchaser or Seller (the "Arbitrator"), prepared on a basis consistent whose decision with GAAPrespect to the matters disputed in the Objection Notice shall be final and binding. For purposes The Arbitrator shall render its decision with respect to such matters within 20 days after such matters are submitted to the Arbitrator and deliver the Effective Balance Sheet to Purchaser and Seller at such time. Seller and Purchaser shall each provide promptly all information and documents within their respective possession that the Arbitrator, in its sole discretion, deems necessary in order to make its decision with respect to the disputed matters. The fees and expenses of the Closing Adjustment and the Final Closing Adjustment (as hereinafter defined), the amount of Accounts Receivable of Seller to Arbitrator shall be included in the Closing Date Balance Sheet shall include only Accounts Receivable of Subscribers as reflected on Report 18A (Subscriber Accounts Receivable Aging By Account) of the NRTC Central Billing System Reports less a reserve of six percent (6%) for Accounts Receivable which are not collectible. In addition, the Closing Date Balance Sheet and the Final Closing Adjustment shall not include as a Current Asset any accounts receivable arising from Leased Subscriber Equipment. Purchaser may, by providing Seller with written notice at least five (5) days prior to the Closing, elect to purchase all, or certain of, the DSS(TM) subscriber equipment owned borne equally by Seller (other than Leased Subscriber Equipment) on the Closing Date; provided, however, Purchaser shall not have the right to acquire any assets attributable to Seller's Electric Business. Any such equipment which is purchased by Purchaser shall be included as Inventory in the Closing Date Balance Sheet. Except as set forth in this Section 4.4(b), no other assets or liabilities shall be included in the Closing Date Balance Sheet. Seller shall make available to Purchaser such documentation, back-up, invoices, and books and records of Seller as Purchaser may reasonably requestPurchaser.
(c) Seller and Purchaser shall negotiate in good faith to reconcile any discrepancies which may arise in connection with the determination of the Closing Date Balance Sheet. If Seller and Purchaser are unable to reconcile such discrepancies, Seller shall have fifteen (15) days from presentment of the Closing Date Balance Sheet by Purchaser to notify Purchaser if Seller wishes to have Purchaser's determination examined. If Seller elects to have Purchaser's determination examined, it shall be submitted to the determination in Atlanta, Georgia, by the Certified Public Accounting firm of KMPG Peat Marwick (or any other independent Certified Public Accounting firm mutually acceptable to Seller and Purchaser), the cost of such examination to be paid fifty percent (50%) by Seller and fifty percent (50%) by Purchaser. The determination by Purchaser shall be final and binding on the parties unless Seller elects to have an examination as provided herein, in which case the results of the examination shall be made within thirty (30) days of such referral, and shall be final and binding on the parties (the "Final Closing Adjustment").
(d) To the extent the Final Closing Adjustment is less than the Closing Adjustment, Seller shall pay the difference in cash to Purchaser within Within five (5) business days after the final determination. In the event the Final Closing Adjustment Effective Balance Sheet is greater than the Closing Adjustment, Purchaser shall pay such excess in cash to Seller within five (5) days after the final determination. If, following any payment pursuant to this Section 4.4(d), an error (in billing or reporting by NRTC or otherwise) is thereafter discovered which would have affected the Final Closing Adjustmentfinally determined, the Purchase Price Adjustment (as described below) shall be paid by Purchaser or Seller, as appropriate, to the other party or an account or accounts designated by such party, in whose favor immediately available funds. The Purchase Price Adjustment shall be equal to any difference in Working Capital between the error was made Seller Balance Sheet and the Effective Balance Sheet. For this purpose, Working Capital shall immediately pay mean Total Current Assets minus Total Current Liabilities, as set forth on the Seller Balance Sheet and the Effective Balance Sheet, on a consolidated basis after eliminating intercompany transactions or obligations as set forth on the respective balance sheets; provided, that the amount of the Note Payable to Stockholders shall not be included in cash such calculation, and provided further, that the amount of the Line of Credit shall be reflected in both the Seller Balance Sheet and the Effective Balance Sheet. Notwithstanding the foregoing, neither Purchaser nor Seller, as the case may be, shall be liable to the other party for any Purchase Price Adjustment unless and until it is determined in accordance with Section 2.9(b) that the amount of such error Purchase Price Adjustment exceeds $100,000, in which case, such party shall only be liable for the Purchase Price Adjustment in excess of $100,000. In order to facilitate the other partypayment of the Purchase Price Adjustment, the Stockholders agree to maintain at least $100,000 in cash or liquid assets in bank accounts of StorageSoft not subject to any Encumbrance until the Purchase Price Adjustment is paid in full.
Appears in 1 contract
Sources: Asset Acquisition Agreement (Phoenix Technologies LTD)
Adjustment to Purchase Price. (a) The As soon as practicable prior to the anticipated Closing Payment Date, Seller shall prepare, or cause to be prepared, and deliver to Purchaser a statement setting forth (1) Seller’s good faith estimate of Closing Net Working Capital (“Estimated Closing Net Working Capital”), Closing Cash (“Estimated Closing Cash”), Closing Indebtedness (“Estimated Closing Indebtedness”), and Closing Company Transaction Costs (“Estimated Closing Company Transaction Costs”), and (2)(A) wire transfer instructions for Seller and (B) an itemized list of the Estimated Closing Indebtedness and Estimated Closing Company Transaction Costs broken down by Person to whom such amounts are owed and wire instructions for each such Person or Persons, in each case to the extent applicable. Purchaser will be afforded an opportunity to review and comment on such statement, and, if requested by Purchaser, Seller will provide Purchaser reasonable supporting documentation related thereto, and Seller shall reasonably and in good faith consider any changes to such statement proposed by Purchaser. For the purposes of determining the amount to be paid by Purchaser to Seller at the Closing pursuant to Section 2.02(e)(ii), the Base Purchase Price shall (i) if Estimated Closing Net Working Capital is greater than the Target Amount, be increased by the parties' good faith estimate amount of such difference, (ii) if Estimated Closing Net Working Capital is less than the Current Assets of Seller and Target Amount, be decreased by the parties' good faith estimate amount of such difference, (iii) be increased by the Current Liabilities amount of Seller as Estimated Closing Cash, (iv) be decreased by the amount of Estimated Closing Indebtedness, and (v) be decreased by the amount of Estimated Closing Date (the "Closing Adjustment"), which adjustment shall be subject to final adjustment as provided for in paragraph (c) belowCompany Transaction Costs.
(b) No later than Within seventy-five (75) days following the Closing Date, Purchaser shall prepare, or cause to be prepared, and deliver to Seller a statement (the “Closing Statement”) setting forth Purchaser’s good faith calculation of Closing Net Working Capital, Closing Cash, Closing Indebtedness and Closing Company Transaction Costs (together, the “Measurement Items”). If Purchaser fails to deliver the Closing Statement within ten (10) days following receipt of written notice from Seller of the failure to timely deliver the same, Purchaser shall be deemed to have delivered a Closing Statement as of the last day of such ten (10) day period showing Closing Net Working Capital equal to Estimated Net Working Capital, Closing Cash equal to Estimated Closing Cash, Closing Indebtedness equal to Estimated Closing Indebtedness and Closing Company Transaction Costs equal to Estimated Closing Company Transaction Costs.
(c) Seller shall have a period of sixty (60) days after delivery of the Closing Date, or within three Statement (3the “Review Period”) days after receipt to review Purchaser’s calculations of the necessary accounting data from Measurement Items set forth in the NRTC Central Billing SystemClosing Statement. During the Review Period, whichever is laterupon reasonable notice and at reasonable times, Purchaser shall make cause the Company Entities to provide Seller and deliver its representatives with reasonable access to Seller a balance sheet reflecting the Current Assets books, records, facilities and Current Liabilities of Seller as management personnel of the Closing Date (Company Entities and its accountants that are reasonably related to the "Closing Date Balance Sheet"), prepared on a basis consistent with GAAP. For purposes calculation of the Closing Adjustment and Measurement Items; provided, that (i) such access shall be in a manner that does not unreasonably interfere with the Final Closing Adjustment (as hereinafter defined)normal business operations of Purchaser, the amount Company Entities or the Business and (ii) the Review Period shall be tolled day-for-day for each day that Purchaser fails to provide such reasonable access requested by Seller in writing. If Seller in good faith determines that the calculation of Accounts Receivable any of Seller to be included the Measurement Items as set forth in the Closing Date Balance Sheet shall include only Accounts Receivable of Subscribers as reflected on Report 18A (Subscriber Accounts Receivable Aging By Account) of Statement have not been calculated in accordance with the NRTC Central Billing System Reports less a reserve of six percent (6%) for Accounts Receivable which are not collectible. In addition, the Closing Date Balance Sheet definitions thereof and the Final Closing Adjustment shall not include as a Current Asset any accounts receivable arising from Leased Subscriber Equipment. Purchaser mayother applicable provisions contained in this Agreement or contain mathematical errors, by providing Seller with written notice at least five (5) days shall, prior to the Closingexpiration of the Review Period, elect deliver to purchase allPurchaser a written notice (an “Objection Notice”), or certain ofsetting forth the basis for such disagreement and Seller’s calculation of the Measurement Items, as applicable. Absent the timely delivery of an Objection Notice, the DSS(TM) subscriber equipment owned by Seller (other than Leased Subscriber Equipment) on calculation of the Measurement Items as set forth in the Closing Date; provided, however, Purchaser shall not have the right to acquire any assets attributable to Seller's Electric Business. Any such equipment which is purchased Statement delivered by Purchaser shall be included as Inventory in the Closing Date Balance Sheet. Except as set forth in this Section 4.4(b), no other assets or liabilities shall be included in the Closing Date Balance Sheet. Seller shall make available to Purchaser such documentation, back-up, invoicesbinding and conclusive upon, and books and records of Seller as Purchaser may reasonably requestdeemed accepted by, Seller.
(cd) If Seller delivers an Objection Notice in a timely manner, Purchaser and Purchaser Seller shall negotiate work together in good faith to reconcile any discrepancies which may arise in connection with resolve the determination of the Closing Date Balance Sheetobjections set forth therein. If Purchaser and Seller and Purchaser are unable to reconcile such discrepancies, Seller shall have fifteen (15) days from presentment of the Closing Date Balance Sheet by Purchaser to notify Purchaser if Seller wishes to have Purchaser's determination examined. If Seller elects to have Purchaser's determination examined, it shall be submitted to the determination in Atlanta, Georgia, by the Certified Public Accounting firm of KMPG Peat Marwick (or any other independent Certified Public Accounting firm mutually acceptable to Seller and Purchaser), the cost resolve all of such examination to be paid fifty percent (50%) by Seller and fifty percent (50%) by Purchaser. The determination by Purchaser shall be final and binding on the parties unless Seller elects to have an examination as provided herein, in which case the results of the examination shall be made objections within thirty (30) days following delivery of the Objection Notice (or such longer period as the parties may agree in writing), then the parties shall refer their remaining differences to BDO LLP (the “Independent Accountants”) for binding resolution. Purchaser and Seller shall each respectively submit to the Independent Accountants in writing their positions on any matter set forth in the Objection Notice that they have not been able to resolve, together with any supporting documents which they deem relevant to the resolution of such referralmatters. The Independent Accountants shall act as an arbitrator to determine any disputed portions of the Measurement Items based solely on the provisions of this Agreement and the submissions of Purchaser and Seller, and shall not conduct an independent review of the Company Entities’ financial statements. In no event may the Independent Accountants determine that (i) Closing Net Working Capital or Closing Cash is less than, or that Closing Indebtedness or Closing Company Transaction Costs are greater than, the respective amounts set forth in the Closing Statement delivered by Purchaser (or deemed so delivered) or (ii) that Closing Net Working Capital or Closing Cash is greater than, or that Closing Indebtedness or Closing Company Transaction Costs are less than, the respective amounts set forth in the Objection Notice delivered by Seller, in each case as applicable. Purchaser and Seller shall make readily available to the Independent Accountants all relevant books and records and any work papers (including those of the parties’ respective accountants to the extent such accountants so permit) relating to the calculation of the Measurement Items, as applicable, and all other items reasonably requested by the Independent Accountants. No discovery will be final conducted and binding no arbitration hearing will be held. The fees and expenses of the Independent Accountants pursuant to this Section 2.03(d) shall be borne by Purchaser, on the parties one hand, and Seller, on the other hand, based upon the percentage which the aggregate portion of the contested amount not awarded to each party bears to the aggregate amount actually contested by such party. (For example, if Seller claims the "Final Closing Adjustment"Net Working Capital is $1,000 greater than the amount determined by Purchaser, and Purchaser contests only $500 of the amount claimed by Seller, and if the Independent Accountant ultimately resolves the dispute by awarding Seller $300 of the $500 contested, then the costs and expenses of the Independent Accountant will be allocated 60% (i.e., 300 ÷ 500) to Purchaser and 40% (i.e., 200 ÷ 500) to Seller.).
(de) To the extent the Final Closing Adjustment is less than the Closing Adjustment, Seller Any payments required to be made pursuant to this Section 2.03 shall pay the difference in cash to Purchaser (i) be made by wire transfer of immediately available funds within five (5) days Business Days after the final determinationdetermination of the applicable calculation and (ii) be deemed adjustments to the Base Purchase Price for all purposes. In As used in this Section 2.03, the event the Final Closing Adjustment is greater than the Closing Adjustment, Purchaser shall pay such excess in cash to Seller within five (5) days after the final determination. If, following any payment phrase “as finally determined” means as finally determined pursuant to this Section 4.4(d)2.03, an error whether by agreement of Purchaser and Seller, failure of Seller to deliver a timely Objection Notice or by decision of the Independent Accountants.
(in billing i) If Closing Net Working Capital as finally determined is greater than Estimated Closing Net Working Capital, then Purchaser shall pay (or reporting by NRTC or otherwisecause to be paid) is thereafter discovered which would have affected the Final Closing Adjustment, the party in whose favor the error was made shall immediately pay in cash to Seller the amount of such error difference. If such Closing Net Working Capital is less than Estimated Closing Net Working Capital, then Parent shall cause Seller to, and Seller shall, pay (or cause to be paid) to Purchaser the amount of such difference.
(ii) If Closing Cash as finally determined is greater than Estimated Closing Cash, then Purchaser shall pay (or cause to be paid) to Seller the amount of such difference. If such Closing Cash is less than Estimated Closing Cash, then Parent shall cause Seller to, and Seller shall, pay (or cause to be paid) to Purchaser the amount of such difference.
(iii) If Closing Indebtedness as finally determined is less than Estimated Closing Indebtedness (i.e., a smaller liability), then Purchaser shall pay (or cause to be paid) to Seller the amount of such difference. If such Closing Indebtedness is greater than Estimated Closing Indebtedness (i.e., a larger liability), then Parent shall cause Seller to, and Seller shall, pay (or cause to be paid) to Purchaser the amount of such difference.
(iv) If Closing Company Transaction Costs as finally determined are less than Estimated Closing Company Transaction Costs, then Purchaser shall pay (or cause to be paid) to Seller the amount of such difference. If such Closing Company Transaction Costs are greater than Estimated Closing Company Transaction Costs, then Parent shall cause Seller to, and Seller shall, pay (or cause to be paid) to Purchaser the amount of such difference.
(f) Any amounts due by Seller on the one hand, and Purchaser, on the other partyhand, pursuant to Section 2.03(e) may be netted against each other.
Appears in 1 contract
Sources: Stock Purchase Agreement (SMART Global Holdings, Inc.)
Adjustment to Purchase Price. (a) Seller has delivered to Purchaser the Seller Balance Sheet. Following the Closing Date, and in any event not later than thirty (30) days thereafter, Purchaser shall deliver to Seller the Purchaser Balance Sheet. The Closing Payment Purchaser Balance Sheet shall attach Purchaser's calculation of the Purchase Price Adjustment in accordance with the provisions of this Section 2.9. Seller and its advisors shall be increased entitled to review all work papers and other supporting documentation used by Purchaser in or relevant to the parties' good faith estimate creation of the Current Assets of Seller and decreased by the parties' good faith estimate of the Current Liabilities of Seller as of the Closing Date (the "Closing Adjustment"), which adjustment shall be subject to final adjustment as provided for in paragraph (c) belowPurchaser Balance Sheet.
(b) No later than sixty The Purchaser Balance Sheet shall become the Effective Balance Sheet for purposes of calculating the Purchase Price Adjustment under this Section 2.9 thirty (6030) days after the Closing Date, or within three (3) days after receipt of the necessary accounting data from the NRTC Central Billing System, whichever is later, Purchaser shall make and deliver delivery thereof to Seller a balance sheet reflecting the Current Assets and Current Liabilities of unless Seller as of the Closing Date within such time period delivers written notice to Purchaser (the "Closing Date Objection Notice") of its ---------------- disagreement as to the value of any item included in the Purchaser Balance Sheet or in Purchaser's calculation of the Purchase Price Adjustment. Any Objection Notice shall specify in reasonable detail the nature of such disagreement and the basis and supporting evidence for Seller's position with respect to the disputed items. Seller and Purchaser shall attempt in good faith to resolve any disagreement for a period of 30 days following the date of the Notice and develop an Effective Balance Sheet. If they are unable to do so within such period, they shall submit the disputed items to a nationally-recognized accounting firm not affiliated with either Purchaser or Seller (the "Arbitrator"), prepared on a basis consistent whose decision with GAAPrespect to the matters disputed in the ---------- Objection Notice shall be final and binding. For purposes The Arbitrator shall render its decision with respect to such matters within 20 days after such matters are submitted to the Arbitrator and deliver the Effective Balance Sheet to Purchaser and Seller at such time. Seller and Purchaser shall each provide promptly all information and documents within their respective possession that the Arbitrator, in its sole discretion, deems necessary in order to make its decision with respect to the disputed matters. The fees and expenses of the Closing Adjustment and the Final Closing Adjustment (as hereinafter defined), the amount of Accounts Receivable of Seller to Arbitrator shall be included in the Closing Date Balance Sheet shall include only Accounts Receivable of Subscribers as reflected on Report 18A (Subscriber Accounts Receivable Aging By Account) of the NRTC Central Billing System Reports less a reserve of six percent (6%) for Accounts Receivable which are not collectible. In addition, the Closing Date Balance Sheet and the Final Closing Adjustment shall not include as a Current Asset any accounts receivable arising from Leased Subscriber Equipment. Purchaser may, by providing Seller with written notice at least five (5) days prior to the Closing, elect to purchase all, or certain of, the DSS(TM) subscriber equipment owned borne equally by Seller (other than Leased Subscriber Equipment) on the Closing Date; provided, however, Purchaser shall not have the right to acquire any assets attributable to Seller's Electric Business. Any such equipment which is purchased by Purchaser shall be included as Inventory in the Closing Date Balance Sheet. Except as set forth in this Section 4.4(b), no other assets or liabilities shall be included in the Closing Date Balance Sheet. Seller shall make available to Purchaser such documentation, back-up, invoices, and books and records of Seller as Purchaser may reasonably requestPurchaser.
(c) Seller and Purchaser shall negotiate in good faith to reconcile any discrepancies which may arise in connection with the determination of the Closing Date Balance Sheet. If Seller and Purchaser are unable to reconcile such discrepancies, Seller shall have fifteen (15) days from presentment of the Closing Date Balance Sheet by Purchaser to notify Purchaser if Seller wishes to have Purchaser's determination examined. If Seller elects to have Purchaser's determination examined, it shall be submitted to the determination in Atlanta, Georgia, by the Certified Public Accounting firm of KMPG Peat Marwick (or any other independent Certified Public Accounting firm mutually acceptable to Seller and Purchaser), the cost of such examination to be paid fifty percent (50%) by Seller and fifty percent (50%) by Purchaser. The determination by Purchaser shall be final and binding on the parties unless Seller elects to have an examination as provided herein, in which case the results of the examination shall be made within thirty (30) days of such referral, and shall be final and binding on the parties (the "Final Closing Adjustment").
(d) To the extent the Final Closing Adjustment is less than the Closing Adjustment, Seller shall pay the difference in cash to Purchaser within Within five (5) business days after the final determination. In the event the Final Closing Adjustment Effective Balance Sheet is greater than the Closing Adjustment, Purchaser shall pay such excess in cash to Seller within five (5) days after the final determination. If, following any payment pursuant to this Section 4.4(d), an error (in billing or reporting by NRTC or otherwise) is thereafter discovered which would have affected the Final Closing Adjustmentfinally determined, the Purchase Price Adjustment (as described below) shall be paid by Purchaser or Seller, as appropriate, to the other party or an account or accounts designated by such party, in whose favor immediately available funds. The Purchase Price Adjustment shall be equal to any difference in Working Capital between the error was made Seller Balance Sheet and the Effective Balance Sheet. For this purpose, Working Capital shall immediately pay mean Total Current Assets minus Total Current Liabilities, as set forth on the Seller Balance Sheet and the Effective Balance Sheet, on a consolidated basis after eliminating intercompany transactions or obligations as set forth on the respective balance sheets; provided, that the amount of the Note Payable to Stockholders shall not be included in cash such calculation, and provided further, that the amount of the Line of Credit shall be reflected in -------- ------ both the Seller Balance Sheet and the Effective Balance Sheet. Notwithstanding the foregoing, neither Purchaser nor Seller, as the case may be, shall be liable to the other party for any Purchase Price Adjustment unless and until it is determined in accordance with Section 2.9(b) that the amount of such error Purchase Price Adjustment exceeds $100,000, in which case, such party shall only be liable for the Purchase Price Adjustment in excess of $100,000. In order to facilitate the other partypayment of the Purchase Price Adjustment, the Stockholders agree to maintain at least $100,000 in cash or liquid assets in bank accounts of StorageSoft not subject to any Encumbrance until the Purchase Price Adjustment is paid in full.
Appears in 1 contract
Sources: Asset Acquisition Agreement (Phoenix Technologies LTD)
Adjustment to Purchase Price. The Net Worth amount determined in accordance with Section 2.3 (the “Actual Net Worth”) shall be used to calculate post-Closing adjustments to the Purchase Price as follows:
(a) The Closing Payment If Actual Net Worth is equal to the Net Worth Threshold, no adjustment to the Purchase Price shall be made;
(b) If Actual Net Worth is less than the Net Worth Threshold, then Parent shall pay Purchaser the difference between the Net Worth Threshold and Actual Net Worth; and
(c) If Actual Net Worth is greater than the Net Worth Threshold, then Purchaser shall pay Parent the difference between Actual Net Worth and the Net Worth Threshold. All payments to be made to either Purchaser or Parent pursuant to this Section 2.4 shall be made by check or by wire transfer of immediately available funds to Parent’s account or Purchaser’s account, as applicable, within three (3) Business Days after the date on which Actual Net Worth is finally determined pursuant to Section 2.3 above. In the event any payment under this Section 2.4 is greater than $25,000, the amount of such payment shall be increased by interest thereon at an annual rate equal to 5% for the parties' good faith estimate period beginning on the Closing Date and ending on the date of such payment.
6. Section 5.15 of the Current Assets Agreement is hereby amended to read in its entirety as follows:
(a) Purchaser, the Company and Parent shall cooperate with Parent’s Canadian tax advisors in preparing and filing, as soon as practicable, an application by Company to the Minister of Seller and decreased by the parties' good faith estimate National Revenue (Canada) for a certificate (a “Section 116 Certificate”) pursuant to Section 116(4) of the Current Liabilities Income Tax Act (Canada) (“CITA”) with respect to the distribution by Company to Parent of Seller as Company’s interest in Airborne Engines (the “Distribution”), such application to be reasonably acceptable to Purchaser and Parent. Purchaser shall withhold from the Closing Date Purchase Price the amount of Four Hundred Thousand Dollars ($400,000) (the “Withheld Amount”) with respect to Parent’s potential withholding obligation under CITA in connection with the Distribution. Within five (5) Business Days of the Closing Date Date, Purchaser shall deposit the Withheld Amount with the Escrow Agent in an account separate from the Escrow Account (the "Closing Adjustment")“Canadian Escrow Account”) pursuant to the terms of an escrow agreement to be mutually agreed upon by Parent, which adjustment Stockholder, Purchaser and Escrow Agent that shall reflect the terms set forth in this Section 5.15. Purchaser and Parent shall each be subject responsible for one-half of all fees and expenses payable to final adjustment as provided for in paragraph (c) belowthe Escrow Agent with respect to the Canadian Escrow Account.
(b) No later than sixty (60) days after In the Closing Dateevent that on or prior to December 26, or 2006, the Company receives a Section 116 Certificate with respect to the Distribution, in form and substance satisfactory to Purchaser acting reasonably, Company shall deliver a copy thereof to Purchaser, and Parent and Purchaser shall, within three (3) days after Business Days of Company’s receipt of such Section 116 Certificate, issue joint written instructions to the necessary accounting data Escrow Agent to (i) remit to the Receiver General of Canada from the NRTC Central Billing SystemCanadian Escrow Account, whichever is lateron behalf of Company, Purchaser shall make and deliver to Seller a balance sheet reflecting the Current Assets and Current Liabilities amount, of Seller as of the Closing Date Taxes, plus any interest, penalties or other amounts (the "Closing Date Balance Sheet"if any), prepared on a basis consistent with GAAP. For purposes of the Closing Adjustment and the Final Closing Adjustment (as hereinafter defined), the amount of Accounts Receivable of Seller directed to be included in the Closing Date Balance Sheet shall include only Accounts Receivable of Subscribers as reflected on Report 18A (Subscriber Accounts Receivable Aging By Account) of the NRTC Central Billing System Reports less a reserve of six percent (6%) for Accounts Receivable which are not collectible. In addition, the Closing Date Balance Sheet and the Final Closing Adjustment shall not include as a Current Asset any accounts receivable arising from Leased Subscriber Equipment. Purchaser may, by providing Seller paid with written notice at least five (5) days prior respect to the Closing, elect to purchase all, or certain of, the DSS(TM) subscriber equipment owned by Seller (other than Leased Subscriber Equipment) on the Closing Date; provided, however, Purchaser shall not have the right to acquire any assets attributable to Seller's Electric Business. Any such equipment which is purchased by Purchaser shall be included as Inventory in the Closing Date Balance Sheet. Except Distribution as set forth on such Section 116 Certificate and (ii) remit to Parent by wire transfer of immediately available funds to an account designated in writing by Parent, the balance of the amount at that time held in the Canadian Escrow Account following payment of the amount pursuant to clause (i) of this Section 4.4(b5.15(b), no other assets or liabilities less forty percent (40%) of any interest earned on the Withheld Amount (which shall be included in the Closing Date Balance Sheet. Seller shall make available remitted to Purchaser such documentation, back-up, invoices, and books and records of Seller as Purchaser may reasonably requestPurchaser).
(c) Seller In the event that on or prior to December 26, 2006, Company has not received a Section 116 Certificate with respect to the Distribution, in form and substance satisfactory to Purchaser shall negotiate acting reasonably, Purchaser and Parent shall, no later than December 28, 2006, issue joint written instructions to the Escrow Agent to remit to the Receiver General of Canada, on Company’s behalf, the amount at that time held in good faith to reconcile the Canadian Escrow Account, less forty percent (40%) of any discrepancies interest earned on the Withheld Amount (which may arise in connection with the determination of the Closing Date Balance Sheet. If Seller and Purchaser are unable to reconcile such discrepancies, Seller shall have fifteen (15) days from presentment of the Closing Date Balance Sheet by Purchaser to notify Purchaser if Seller wishes to have Purchaser's determination examined. If Seller elects to have Purchaser's determination examined, it shall be submitted remitted to the determination in Atlanta, Georgia, by the Certified Public Accounting firm of KMPG Peat Marwick (or any other independent Certified Public Accounting firm mutually acceptable to Seller and Purchaser), the cost of such examination to be paid fifty percent (50%) by Seller and fifty percent (50%) by Purchaser. The determination by Purchaser shall be final and binding on the parties unless Seller elects to have an examination as provided herein, in which case the results of the examination shall be made within thirty (30) days of such referral, and shall be final and binding on the parties (the "Final Closing Adjustment").
(d) To the extent the Final Closing Adjustment is less than the Closing Adjustment, Seller shall pay the difference in cash to Purchaser within five (5) days after the final determination. In the event that on or prior to December 26, 2006, Company receives notice from the Final Closing Adjustment Minister of National Revenue (Canada) that a Section 116 Certificate shall not be issued with respect to the Distribution, Company shall provide a copy of such notice to Parent, and Parent and Purchaser shall, within three (3) Business Days of Company’s receipt of such notice, deliver joint written instructions to the Escrow Agent to remit to the Receiver General of Canada, on behalf of Company, the lesser of (i) the amount of Tax, plus any interest, penalties or other amounts, directed to be paid by the Minister of National Revenue (Canada) with respect to the Distribution and (ii) the amount of the Canadian Escrow Account, less forty percent (40%) of any interest earned on the Withheld Amount (which shall be remitted to Purchaser). Parent shall be responsible for paying any Taxes or other amounts payable in excess of the amount remitted to the Receiver General of Canada in accordance with the preceding sentence. Parent shall pay such additional Taxes and such other amounts to Company promptly (and in any event within three (3) Business Days) upon Parent’s receipt from Company of notice from the Minister of National Revenue (Canada) of the total amount of Tax or other amounts payable with respect to the Distribution. Company shall remit such additional Taxes and other amounts to the Receiver General (Canada) within one (1) Business Day of receipt from Parent.
(e) In the event that, following December 26, 2006, Company receives a Section 116 Certificate, Company shall file, in the manner and within the delays provided for under CITA, a Canadian income tax return in respect of the year in which the distribution of the interest in Airborne Engines to Parent occurred, and Purchaser shall cause Company to pay to Parent, by wire transfer of immediately available funds to an account designated in writing by Parent, any amount that is greater than refunded to Company with respect to the Closing Adjustmentamounts remitted pursuant to Section 5.15(c) hereof, Purchaser within three (3) Business Days of Company’s receipt of such refunded amount.
(f) In the event that following December 26, 2006, Company receives notice from the Minister of National Revenue (Canada) that a Section 116 Certificate shall not be issued with respect to the Distribution, Company shall provide a copy of such notice to Parent. If pursuant to such notice, the aggregate amount of Taxes and other amounts payable with respect to the Distribution exceed the amount remitted to the Receiver General of Canada pursuant to Section 5.15(c) hereof, then Parent shall pay such excess Taxes and such other amounts to Company promptly (and in cash any event within three (3) Business Days) upon Parent’s receipt from Company of notice from the Minister of National Revenue (Canada) of the total amount of Tax or other amounts payable with respect to Seller the Distribution, and Company shall remit such excess Taxes and other amounts to the Receiver General of Canada within five one (51) days after the final determinationBusiness Day of receipt from Parent. If, following any payment If pursuant to such notice, the aggregate amount of Taxes and other amounts payable with respect to the Distribution are less than the amount remitted to the Receiver General of Canada pursuant to Section 5.15(c) hereof, then Company shall file, in the manner and within the delays provided for under CITA, a Canadian income tax return in respect of the year in which the distribution of the interest in Airborne Engines to Parent occurred, and Purchaser shall cause Company to pay to Parent, by wire transfer of immediately available funds to an account designated in writing by Parent, any amount that is refunded to Company with respect to the amounts remitted pursuant to Section 5.15(c) hereof, within three (3) Business Days of Company’s receipt of such refunded amount.
(g) Notwithstanding anything to the contrary contained herein, (i) Parent shall be responsible and shall pay to Company for further remission to the Receiver General of Canada, any and all Taxes and other amounts (including without limitation penalties and interest) owed under applicable Canadian Tax law with respect to the Distribution that exceed amounts held in the Canadian Escrow Account and (ii) if at any time Parent does not fulfill its obligations under this Section 4.4(d)5.15, an error (including without limitation its obligations to provide joint written instructions to the Escrow Agent in billing or reporting accordance with this Section 5.15, Purchaser may cause the Company to remit such funds as Purchaser reasonably determines are payable to the Receiver General of Canada, and shall be entitled to indemnification pursuant to Section 11.3(c) hereof with respect to any and all Adverse Consequences incurred by NRTC or otherwise) Purchaser and/or Company with respect thereto.
7. Section 6.11 of the Agreement is thereafter discovered which would have affected hereby amended to delete the Final Closing Adjustment, the party in whose favor the error was made shall immediately pay in cash the amount last sentence of such error Section.
8. Section 9.1(n) of the Agreement is hereby amended to the other party.read in its entirety as follows:
Appears in 1 contract
Sources: Stock Purchase Agreement (United Industrial Corp /De/)
Adjustment to Purchase Price. 2.3.1 At least five business days prior to the Closing Date, InSystems shall prepare and deliver to SRC a good faith estimate (a) the “Estimate Statement”), prepared in a manner consistent with the preparation of the Financial Statements (as hereafter defined), of the Working Capital of InSystems as of the Closing Date, to include the addition of an asset in an amount equal to 80% of InSystems’ anticipated Scientific Research and Experimental Development tax credit for the period beginning April 1, 2002 and ending on the Closing Date (the “Estimated Closing Date Working Capital”).
2.3.2 The Purchase Price to be paid at the Closing Payment shall be increased by the parties' good faith estimate of amount the Current Assets of Seller and Estimated Closing Date Working Capital exceeds CDN $2,300,000 (the “Benchmark Working Capital”) or decreased by the parties' good faith estimate amount the Estimated Closing Date Working Capital falls short of the Current Liabilities of Seller Benchmark Working Capital.
2.3.3 As promptly as practicable after the Closing Date, but in no event more than 60 days thereafter, SRC shall prepare or cause to be prepared and shall deliver to InSystems a reasonably detailed statement and all relevant documentation (the “SRC Statement”) setting forth the actual Working Capital as of the close of business on the Closing Date (the "“Actual Closing Adjustment"Date Working Capital”), which adjustment shall be subject to final adjustment as provided for in paragraph (c) below.
(b) No later than sixty (60) . SRC will prepare the SRC Statement consistent with the basis of the preparation of the Estimate Statement. Unless within 30 days after the Closing Date, or within three (3) days after its receipt of the necessary accounting data from SRC Statement the NRTC Central Billing System, whichever is later, Purchaser Shareholders’ Representative (as herein defined) shall make and deliver to Seller SRC a balance sheet reflecting reasonably detailed statement describing the Current Assets and Current Liabilities Shareholders' objections to the SRC Statement (a “Statement of Seller as of the Closing Date (the "Closing Date Balance Sheet"), prepared on a basis consistent with GAAP. For purposes of the Closing Adjustment and the Final Closing Adjustment (as hereinafter definedObjection”), the amount of Accounts Receivable of Seller to be included in the Actual Closing Date Balance Sheet shall include only Accounts Receivable of Subscribers as reflected on Report 18A (Subscriber Accounts Receivable Aging By Account) of the NRTC Central Billing System Reports less a reserve of six percent (6%) for Accounts Receivable which are not collectible. In addition, the Closing Date Balance Sheet and the Final Closing Adjustment shall not include as a Current Asset any accounts receivable arising from Leased Subscriber Equipment. Purchaser may, by providing Seller with written notice at least five (5) days prior to the Closing, elect to purchase all, or certain of, the DSS(TM) subscriber equipment owned by Seller (other than Leased Subscriber Equipment) on the Closing Date; provided, however, Purchaser shall not have the right to acquire any assets attributable to Seller's Electric Business. Any such equipment which is purchased by Purchaser shall be included as Inventory in the Closing Date Balance Sheet. Except as set forth in this Section 4.4(b), no other assets or liabilities shall be included in the Closing Date Balance Sheet. Seller shall make available to Purchaser such documentation, back-up, invoices, and books and records of Seller as Purchaser may reasonably request.
(c) Seller and Purchaser shall negotiate in good faith to reconcile any discrepancies which may arise in connection with the determination of the Closing Date Balance Sheet. If Seller and Purchaser are unable to reconcile such discrepancies, Seller shall have fifteen (15) days from presentment of the Closing Date Balance Sheet by Purchaser to notify Purchaser if Seller wishes to have Purchaser's determination examined. If Seller elects to have Purchaser's determination examined, it shall be submitted to the determination in Atlanta, Georgia, by the Certified Public Accounting firm of KMPG Peat Marwick (or any other independent Certified Public Accounting firm mutually acceptable to Seller and Purchaser), the cost of such examination to be paid fifty percent (50%) by Seller and fifty percent (50%) by Purchaser. The determination by Purchaser Working Capital shall be final and binding on the parties unless Seller elects hereto and the SRC Statement shall be the final statement hereunder (the “Closing Date Statement”). Deadlines set forth in this Section 2.3.3 may be revised upon the written mutual consent of SRC and the Shareholders Representative.
2.3.4 If the Shareholders’ Representative shall deliver to have an examination SRC a timely Statement of Objection, SRC and the Shareholders’ Representative and their respective independent accountants shall negotiate in good faith and use reasonable best efforts to resolve any disputes. If a resolution is reached, such resolution shall be final and binding on the parties. If a final resolution is not reached within 30 days after the Shareholders’ Representative has submitted a Statement of Objection, any remaining disputes shall be resolved by a third firm of independent accountants (the “Reviewing Accountants”) selected jointly by the parties. The Reviewing Accountants shall be instructed to resolve any matters in dispute as provided hereinpromptly as practicable, but in which case no event more than 30 days after submission, and set forth their resolution in a statement setting forth the results Actual Closing Date Working Capital (the “Accountant Statement”). In such event, the determination of the examination shall be made within thirty (30) days of such referral, and Reviewing Accountants shall be final and binding on the parties (hereto and the "Final Accountant Statement shall be the Closing Adjustment")Date Statement.
2.3.5 In the event that the Actual Closing Date Working Capital determined by the Reviewing Accountants as set forth on the Accountant Statement is more than 10% greater than what SRC determined in its calculation of Actual Closing Date Working Capital as set forth in the SRC Statement, then all fees and expenses of the Reviewing Accountants shall be borne by SRC; otherwise all fees and expenses of the Reviewing Accountants shall be borne by the Shareholders. The Shareholders and SRC shall cooperate with each other and the Reviewing Accountants in connection with the matters contemplated by this Section 2.3, including SRC’s preparation of and the Shareholders’ Representative review of the Closing Date Statement, including by furnishing such information and access to books, records (dincluding accountants’ work papers), personnel and properties as may be reasonably requested.
2.3.6 If the Actual Closing Date Working Capital as shown on the Closing Date Statement differs from the Estimated Closing Date Working Capital as shown on the Estimate Statement, then the Purchase Price shall be recomputed as set forth in Section 2.3.2, but using the Actual Closing Date Working Capital. If the Purchase Price as computed pursuant to this Section 2.3.6 is greater than the amount paid to the Shareholders at the Closing, then SRC shall immediately pay the difference to the Paying Agent (as herein defined) To by wire transfer of immediately available funds, together with interest at 2% per annum. If the extent the Final Closing Adjustment Purchase Price as computed pursuant to this Section 2.3.6 is less than the Closing Adjustmentamount paid to the Shareholders at the Closing, Seller then SRC shall pay be entitled to recover the difference in cash to Purchaser within five (5) days after difference, together with interest at 2% per annum, from the final determinationEscrow Amount. In the event the Final Closing Adjustment is greater than Interest shall accrue from the Closing Adjustment, Purchaser shall pay such excess in cash Date to Seller within five (5) days after the final determination. If, following any date of payment pursuant to under this Section 4.4(d), an error (in billing or reporting by NRTC or otherwise) is thereafter discovered which would have affected the Final Closing Adjustment, the party in whose favor the error was made shall immediately pay in cash the amount of such error to the other party2.3.6.
Appears in 1 contract
Adjustment to Purchase Price. (a) The Not later than three Business Days prior to the Closing Payment Date, the Sellers’ Representative shall be increased by provide the parties' Buyer with a written statement (the “Estimated Statement”) reflecting the Sellers’ Representative’s good faith estimate of the Current Assets of Seller and decreased by the parties' good faith estimate Net Indebtedness of the Current Liabilities of Seller Company Entities as of 11:59 p.m., Eastern time, on the day immediately prior to the Closing Date (the "“Estimated Closing Adjustment"Net Indebtedness”). Each of the Estimated Statement and, following the Closing, as required to be delivered by Section 2.4(b), which adjustment the Closing Statement, shall be subject prepared and calculated in accordance with this Agreement and GAAP; provided, that in the event of any conflict between the accounting principles contained in this Agreement and GAAP, the accounting principles contained in this Agreement, including the definition of Indebtedness, shall control. Upon receipt of the Estimated Statement, the Buyer and the Sellers’ Representative shall use their commercially reasonable efforts to final adjustment as provided for in paragraph (c) belowreach agreement on the amount of the Estimated Closing Net Indebtedness. If any disagreement cannot be resolved prior to the Closing Date, the Estimated Statement shall be used to determine the Closing Amount to be paid at Closing. If the Buyer and the Sellers’ Representative are able to agree on any adjustments to the Estimated Statement prior to the Closing Date, the Estimated Statement shall be adjusted to reflect such amendments and such revised Estimated Statement shall be used to determine the Closing Amount to be paid at Closing.
(b) No As promptly as practicable, but no later than sixty (60) 30 days after the Closing Date, or within three the Buyer shall cause to be prepared and delivered to the Sellers’ Representative a statement (3the “Closing Statement”) days after receipt reflecting the Net Indebtedness of the necessary accounting data from the NRTC Central Billing System, whichever is later, Purchaser shall make and deliver to Seller a balance sheet reflecting the Current Assets and Current Liabilities of Seller Company Entities as of 11:59 p.m., Eastern time, on the day immediately prior to the Closing Date (the "“Closing Date Balance Sheet"Net Indebtedness”), prepared on a basis consistent . The Sellers shall cooperate with GAAP. For purposes and reasonably assist the Buyer and its Representatives in the preparation of the Closing Adjustment Statement and shall provide the Final Closing Adjustment (as hereinafter defined), Buyer and its Representatives with any information reasonably requested by the amount Buyer or its Representatives that is necessary for the preparation of Accounts Receivable of Seller to be included in the Closing Date Balance Sheet shall include only Accounts Receivable of Subscribers as reflected on Report 18A (Subscriber Accounts Receivable Aging By Account) of Statement. If the NRTC Central Billing System Reports less a reserve of six percent (6%) for Accounts Receivable which are not collectible. In addition, Buyer fails to timely deliver the Closing Date Balance Sheet and the Final Closing Adjustment shall not include as a Current Asset any accounts receivable arising from Leased Subscriber Equipment. Purchaser may, Statement by providing Seller with written notice at least five (5) no later than 30 days prior to the Closing, elect to purchase all, or certain of, the DSS(TM) subscriber equipment owned by Seller (other than Leased Subscriber Equipment) on after the Closing Date; provided, however, Purchaser shall not have then the right to acquire any assets attributable to Seller's Electric Business. Any such equipment which is purchased by Purchaser Closing Net Indebtedness shall be included as Inventory in the deemed to be equal to Estimated Closing Date Balance Sheet. Except as set forth in this Section 4.4(b), no other assets or liabilities shall be included in the Closing Date Balance Sheet. Seller shall make available to Purchaser such documentation, back-up, invoices, and books and records of Seller as Purchaser may reasonably requestNet Indebtedness.
(c) Seller During the 15-day period following receipt of the Closing Statement by the Sellers’ Representative, the Sellers’ Representative and Purchaser its Representatives shall negotiate have the right, upon reasonable notice to the Company and the Buyer, to reasonable access to the Company Entities’ books and records, appropriate staff members and such other information as the Sellers’ Representative shall reasonably request in good faith order to reconcile review the Closing Statement. The Closing Statement delivered by the Buyer to the Sellers’ Representative shall be conclusive, final and binding on all Parties unless the Sellers’ Representative, prior to the 15th day following receipt of the Closing Statement, delivers a notice to the Buyer stating that the Sellers’ Representative disagrees with such calculation and specifying in reasonable detail (i) those items and amounts as to which the Sellers’ Representative disagrees and the basis therefor and (ii) the Sellers’ Representative’s alternative calculation for each item and amount as to which the Sellers’ Representative disagrees (any discrepancies such notice, a “Dispute Notice”). The Sellers’ Representative shall be deemed to have agreed with all other items and amounts contained in the Closing Statement that are not the subject of a Dispute Notice.
(d) If a Dispute Notice is duly delivered pursuant to Section 2.4(c), the Sellers’ Representative and the Buyer shall, during the 10 days following such delivery, use their commercially reasonable efforts to reach agreement on the disputed items or amounts in order to determine, as may be required, the amount of Closing Net Indebtedness. If during such period, the Sellers’ Representative and Buyer are unable to reach such agreement, they shall promptly thereafter cause a nationally recognized independent accounting firm mutually agreed upon by the Buyer and the Sellers’ Representative, which may arise agreement shall not be unreasonably withheld, conditioned, or delayed (the “Independent Accountant”), to review this Agreement and the unresolved disputed items and amounts set forth in connection the Dispute Notice for the purpose of calculating the Closing Net Indebtedness. Each Party agrees to execute, if requested by the Independent Accountant, a reasonable engagement letter. The Buyer and the Sellers’ Representative shall cooperate with the Independent Accountant and promptly provide, and shall cause the Company to provide, all documents and information reasonably requested by the Independent Accountant. In making such calculation, the Independent Accountant shall consider only the unresolved items and amounts in the Closing Statement as to which the Sellers’ Representative has specifically disagreed in its Dispute Notice. The Independent Accountant’s determination on each item in dispute shall not be greater than the greater value for such item claimed by either the Sellers’ Representative or the Buyer or less than the lower value for such item claimed by either the Sellers’ Representative or the Buyer in the Closing Statement or Dispute Notice, respectively. The Sellers’ Representative and the Buyer shall direct the Independent Accountant to deliver to the Sellers’ Representative and the Buyer, as promptly as practicable (but in any case no later than 20 days from the date of its engagement), a report setting forth such calculation; provided, that the failure by the Independent Accountant to deliver its report within the time period set forth herein shall not render the determination of the Closing Date Balance Sheet. If Seller and Purchaser are unable Independent Accountant invalid nor shall it be a basis for either Party seeking to reconcile such discrepancies, Seller shall have fifteen (15) days from presentment of the Closing Date Balance Sheet by Purchaser to notify Purchaser if Seller wishes to have Purchaser's overturn any determination examined. If Seller elects to have Purchaser's determination examined, it shall be submitted to the determination in Atlanta, Georgia, rendered by the Certified Public Accounting firm of KMPG Peat Marwick (or any other independent Certified Public Accounting firm mutually acceptable to Seller and Purchaser), the cost of such examination to be paid fifty percent (50%) by Seller and fifty percent (50%) by PurchaserIndependent Accountant. The determination by Purchaser Such report shall be final and binding upon the Parties absent manifest error, shall be deemed a final arbitration award that is binding on Parties, and no Party shall seek further recourse to courts or other tribunals, other than to enforce such report. The Independent Accountant will determine the allocation of the cost of its review and report based on the parties unless Seller elects inverse of the percentage its determination (before such allocation) bears to have an examination the total amount of the total items in dispute as provided hereinoriginally submitted to Independent Accountant. For example, should the items in dispute total in amount to $1,000 and the Independent Accountant awards $600 in favor of the Sellers’ Representative’s position, 60% of the costs of its review would be borne by the Buyer, and 40% of the costs would be borne by the Sellers (severally, in which case the results of the examination shall be made within thirty (30) days of such referralproportion to their respective Pro-Rata Shares, and shall be final and binding on the parties (the "Final Closing Adjustment"not jointly).
(d) To the extent the Final Closing Adjustment is less than the Closing Adjustment, Seller shall pay the difference in cash to Purchaser within five (5) days after the final determination. In the event the Final Closing Adjustment is greater than the Closing Adjustment, Purchaser shall pay such excess in cash to Seller within five (5) days after the final determination. If, following any payment pursuant to this Section 4.4(d), an error (in billing or reporting by NRTC or otherwise) is thereafter discovered which would have affected the Final Closing Adjustment, the party in whose favor the error was made shall immediately pay in cash the amount of such error to the other party.
Appears in 1 contract
Sources: Purchase and Sale Agreement (Leucadia National Corp)
Adjustment to Purchase Price. (a) The Closing Payment shall be increased by the parties' good faith estimate Within sixty (60) days of the Current Assets of Seller Closing Date, Buyer shall deliver to Sellers a consolidated balance sheet and decreased by the parties' good faith estimate profit and loss account of the Current Liabilities of Seller Group as of the Closing Valuation Date (the "“Preliminary Closing Adjustment"Accounts”), which adjustment shall be subject to final adjustment as provided for in paragraph (c) belowinclude a certificate setting forth the Buyer's calculation of the Valuation Date Net Assets.
(b) No later than sixty (60) days after the The Preliminary Closing DateAccounts shall be prepared in accordance with U.S. GAAP, or within three (3) days after receipt of the necessary accounting data from the NRTC Central Billing Systemhowever, whichever is later, Purchaser shall make and deliver to Seller a balance sheet reflecting the Current Assets and Current Liabilities of Seller as of the Closing Date (the "Closing Date Balance Sheet"), prepared on a basis consistent with GAAP. For purposes of the Closing Adjustment and the Final Closing Adjustment (as hereinafter defined), the amount of Accounts Receivable of Seller all provisions for risks to be included in said Preliminary Closing Accounts shall be determined solely by the Closing Date Balance Sheet shall include only Accounts Receivable of Subscribers as reflected on Report 18A (Subscriber Accounts Receivable Aging By Account) of the NRTC Central Billing System Reports less a reserve of six percent (6%) for Accounts Receivable which are not collectible. In addition, the Closing Date Balance Sheet Sellers’ Representative and the Final Closing Adjustment shall not include as a Current Asset any accounts receivable arising from Leased Subscriber Equipment. Purchaser may, by providing Seller with written notice at least five (5) days prior to the Closing, elect to purchase all, or certain of, the DSS(TM) subscriber equipment owned by Seller (other than Leased Subscriber Equipment) on the Closing Date; provided, however, Purchaser shall not have the right to acquire any assets attributable to Seller's Electric Business. Any such equipment which is purchased by Purchaser shall be included as Inventory in the Closing Date Balance Sheet. Except as set forth in this Section 4.4(b), no other assets or liabilities shall be included in the scope of the Closing Date Balance Sheet. Seller shall make available to Purchaser such documentation, back-up, invoices, and books and records of Seller as Purchaser may reasonably requestAccount Disputed Matters.
(c) Seller and Purchaser shall negotiate in good faith to reconcile any discrepancies which may arise in connection with Sellers' Representative shall, within the determination period of the Closing Date Balance Sheet. If Seller and Purchaser are unable to reconcile such discrepancies, Seller shall have fifteen (15) days from presentment of the Closing Date Balance Sheet by Purchaser to notify Purchaser if Seller wishes to have Purchaser's determination examined. If Seller elects to have Purchaser's determination examined, it shall be submitted to the determination in Atlanta, Georgia, by the Certified Public Accounting firm of KMPG Peat Marwick (or any other independent Certified Public Accounting firm mutually acceptable to Seller and Purchaser), the cost of such examination to be paid fifty percent (50%) by Seller and fifty percent (50%) by Purchaser. The determination by Purchaser shall be final and binding on the parties unless Seller elects to have an examination as provided herein, in which case the results of the examination shall be made within thirty (30) days following delivery of the Preliminary Closing Accounts (the "Closing Accounts Agreement Period") either:
(i) confirm his agreement with the Preliminary Closing Accounts; or
(ii) give notice in writing to Buyer that Sellers dispute the Preliminary Closing Accounts (a "Closing Accounts Dispute Notice").
(d) Any Closing Accounts Dispute Notice shall set out:
(i) the matters which are disputed (the "Closing Accounts Disputed Matters");
(ii) the reasons why such referralmatters are disputed; and
(iii) (so far as practicable) the monetary effect that Sellers believe each of the Closing Accounts Disputed Matters has on the calculation of the Valuation Date Net Assets.
(e) If Sellers' Representative does not serve a Closing Accounts Dispute Notice prior to the expiry of the Closing Accounts Agreement Period or during the Closing Accounts Agreement Period confirm by notice in writing his agreement with the Preliminary Closing Accounts (either as delivered in accordance with Section 2.4(a) or as modified in such manner as shall be agreed between the Buyer and the Sellers' Representative), the Preliminary Closing Accounts shall constitute the "Closing Accounts" and shall be final and binding on Buyer and Sellers.
(f) If Sellers' Representative does serve a Closing Accounts Dispute Notice, then Sellers' Representative and Buyer shall use their respective reasonable endeavors to resolve the parties Closing Accounts Disputed Matters as soon as reasonably practicable and in any event within the period of 30 days following the date of service of the Closing Accounts Dispute Notice (or such longer period as may be agreed in writing between Sellers' Representative and Buyer) (the "Final Closing AdjustmentAccounts Dispute Resolution Period") and either:
(i) if Sellers' Representative and Buyer reach agreement on the Closing Accounts Disputed Matters during the Closing Accounts Dispute Resolution Period, the Preliminary Closing Accounts shall be modified to reflect such agreement and, as so modified, shall constitute the Closing Accounts and shall be final and binding on Sellers and Buyer; or
(ii) if Sellers' Representative and Buyer do not reach agreement on the Closing Accounts Disputed Matters prior to the expiry of the Closing Accounts Dispute Resolution Period, then either Buyer or Sellers' Representative may refer the dispute to such independent firm of accountants (the "Closing Accounts Expert") as may be agreed between Buyer and Sellers' Representative (or if they cannot agree on such selection, each of Buyer and Sellers' Representative shall nominate an independent accounting firm, and each of those firms shall be instructed to nominate a third independent accounting firm to act as the Expert).
(dg) To the extent the Final Where a reference is made to a Closing Adjustment is less than Accounts Expert, the Closing Adjustment, Seller Accounts Expert shall pay be instructed to make a determination only in relation to the difference Closing Accounts Disputed Matters specified in cash to Purchaser the Closing Accounts Dispute Notice within five (5) 30 days after the final determinationreference to him (or such longer period as the Closing Accounts Expert may reasonably determine). In the event the Final Closing Adjustment is greater than making his determination, the Closing AdjustmentAccounts Expert shall act as an expert and not as an arbitrator and shall, Purchaser shall pay such excess in cash his reasonable discretion, determine the procedures which are to Seller within five (5) days after apply in connection with the conduct of the reference to him. The decision of the Closing Accounts Expert shall, in the absence of fraud or manifest error, be final determinationand binding on Buyer and Sellers. If, following any payment pursuant Following the notification of the Closing Accounts Expert's determination to this Section 4.4(d), an error (in billing or reporting by NRTC or otherwise) is thereafter discovered which would have affected the Final Closing AdjustmentBuyer and Sellers' Representative, the party Preliminary Closing Accounts shall be amended as necessary to reflect the decision of the Closing Accounts Expert in whose favor the error was made shall immediately pay in cash the amount of such error relation to the Closing Accounts Disputed Matters and, as so amended, shall be signed by the Closing Accounts Expert and, upon being signed by the Closing Accounts Expert, shall constitute the Closing Accounts and shall be final and binding on Sellers and Buyer. The costs of the Closing Accounts Expert shall be borne by Buyer and Sellers in the proportions he directs or, in the absence of any such direction, equally between Buyer on the one hand and Sellers on the other.
(h) Buyer and Sellers shall provide or procure the provision to the Closing Accounts Expert of all such information and documentation as the Closing Accounts Expert shall reasonably require (including access to the books and records and personnel of the Company).
(i) Buyer and Sellers shall bear their own respective costs incurred in connection with the preparation, review and finalization of the Preliminary Closing Accounts, and the Closing Accounts (other partythan any costs incurred in connection with any reference to a Closing Accounts Expert).
Appears in 1 contract
Sources: Stock Purchase Agreement (Global Med Technologies Inc)
Adjustment to Purchase Price. (a) The Closing Payment shall be increased by the parties' good faith estimate of the Current Assets of Seller and decreased by the parties' good faith estimate of the Current Liabilities of Seller as of the Closing Date Within ninety (the "Closing Adjustment"), which adjustment shall be subject to final adjustment as provided for in paragraph (c90) below.
(b) No later than sixty (60) calendar days after the Closing Date, or within three (3) days after receipt of the necessary accounting data from the NRTC Central Billing System, whichever is later, Purchaser shall make and deliver to Seller a balance sheet of the Business reflecting the Current Assets assets and Current Liabilities of Seller the Business as of the close of business on the date immediately prior to the Closing Date (including a calculation of Net Worth will be prepared by Buyer and delivered to Seller. Such balance sheet, as adjusted, is referred to herein as the "Closing Date Balance Sheet"), ." The Closing Date Balance Sheet shall be prepared on in a basis manner consistent with GAAP. For purposes the Reference Date Balance Sheet (including with respect to adjustment procedures, discretionary allocations and other judgments) and shall reflect the consolidation of the Closing Adjustment assets and Liabilities of Acquired Companies and the Final Closing Adjustment (as hereinafter defined)Business in accordance with GAAP; provided, however, that, notwithstanding anything contained on the amount of Accounts Receivable of Seller Reference Date Balance Sheet or herein to be included in the contrary, the Closing Date Balance Sheet (i) shall not include any intercompany accounts as between any of the Acquired Companies, on the one hand, and Parent or any subsidiary or Affiliate of Seller (other than the Acquired Companies), on the other hand, including, without limitation, the Intergroup Receivables; (ii) shall not include any purchase accounting adjustments; (iii) shall not contain any Excluded Liabilities or any Liabilities related to indebtedness (other than capital lease obligations), including, without limitation, the Barclays Debt; (iv) shall not include any Liability underlying the obligations of the Acquired Companies with respect to the Continued Employee Payment or the Chameleon Payment (it being agreed that such Liabilities and corresponding payments shall be determined and paid pursuant to Section 2.2(c)); (v) shall include only Accounts Receivable of Subscribers as such inventory that is (A) reflected on Report 18A the Reference Date Balance Sheet or has been manufactured since the Reference Date, and (Subscriber Accounts Receivable Aging By AccountB) located at the Andover Facility or such other locations designated by Buyer. All foreign currency amounts shall be expressed in United States dollars using the exchange rate and conversion mechanism as required by GAAP; and (vi) shall include as an accrued expense for unpaid Taxes for the 1998 and 1999 Tax years an amount equal to that shown on the Reference Date Balance Sheet for such Tax years (for the avoidance of doubt, it is agreed among the parties that any deficiencies of such accrual shall be resolved on a dollar-for-dollar basis pursuant to the 1998/1999 Tax Make-Whole Payment under Section 2.2(c) or, as necessary, the indemnification rights under Section 14.3). Parent shall have the right to review the computations and work papers (including access to accountants' work papers, subject to such confidentiality restrictions and indemnities as Buyer's accountants shall reasonably request) and underlying books and records used in connection with Buyer's preparation of the NRTC Central Billing System Reports less a reserve Closing Date Balance Sheet and to have access to the key employees and independent accountants of six percent Buyer in connection therewith. Buyer shall maintain separate books and records for the Business until such time as any post-Closing adjustment under this Section 2.3 has been paid by the relevant party.
(6%b) for Accounts Receivable which are If Buyer and Parent cannot collectible. In addition, reach agreement with respect to the Closing Date Balance Sheet and the Final Closing Adjustment shall not include as a Current Asset any accounts receivable arising from Leased Subscriber Equipment. Purchaser may, by providing Seller with written notice at least five determination of Net Worth within ten (510) days prior to after the Closing, elect to purchase all, or certain of, the DSS(TM) subscriber equipment owned by Seller (other than Leased Subscriber Equipment) on the Closing Date; provided, however, Purchaser shall not have the right to acquire any assets attributable to Seller's Electric Business. Any such equipment which is purchased by Purchaser shall be included as Inventory in the Closing Date Balance Sheet. Except as set forth in this Section 4.4(b), no other assets or liabilities shall be included in the Closing Date Balance Sheet. Seller shall make available to Purchaser such documentation, back-up, invoices, and books and records of Seller as Purchaser may reasonably request.
(c) Seller and Purchaser shall negotiate in good faith to reconcile any discrepancies which may arise in connection with the determination of the Closing Date Balance Sheet. If Seller and Purchaser are unable to reconcile such discrepancies, Seller shall have fifteen (15) days from presentment delivery of the Closing Date Balance Sheet to Seller, Buyer and Parent shall jointly appoint an internationally-recognized accounting firm (other than any firm that has been engaged by Purchaser to notify Purchaser if Seller wishes to have Purchaser's determination examined. If Seller elects to have Purchaser's determination examinedParent, it shall be submitted to the determination in Atlanta, Georgia, by the Certified Public Accounting firm of KMPG Peat Marwick (Buyer or any other independent Certified Public Accounting firm mutually acceptable to Seller and Purchaser), of their Affiliates at any time during the prior three (3) years) (the "Auditor") (the cost of such examination to be paid fifty percent (50%) by Seller and fifty percent (50%) by Purchaser. The determination by Purchaser which shall be final divided equally between Buyer and binding on Parent) to determine the parties unless Seller elects to have an examination as provided herein, in which case the results proper resolution of the examination disagreements between Buyer and Parent concerning the Closing Date Balance Sheet and the determination of Net Worth, whose determination shall be made within thirty (30) days of such referral, and shall be final and binding on the parties. If Buyer and Parent cannot agree on the appointment of such a certified public accounting firm, such firm shall be selected at random from a list comprised of two firms chosen by Buyer and two firms chosen by Parent. The Auditor shall resolve all disputes and disputed items as soon as practicable, provided that the Auditor shall be bound by the provisions of Sections 2.2, 2.3 and 2.5, as applicable, and 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. Each of Buyer and Parent shall permit the Auditor to have full access to the books, records, key employees and independent accountants of Buyer and Parent and their respective subsidiaries and affiliates in order to resolve any such disagreements. Unless the Auditor otherwise directs, each of the parties shall be limited to an initial written presentation to the Auditor and a written rebuttal. The parties shall present to the Auditor, and shall exchange, initial presentation documents no later than twenty (20) calendar days after retention or appointment of the Auditor pursuant to the third and fourth sentences of this Section 2.3(b), as applicable, and shall present to the Auditor, and shall exchange, written rebuttals no later than ten (10) calendar days thereafter. All determinations made by the Auditor shall be final, conclusive and binding on the parties.
(c) Within ten (10) calendar days after final determination of the Closing Date Balance Sheet and the Net Worth as of the Closing Date, Parent and Seller shall pay to Buyer the amount, if any, by which the Net Worth as of the Reference Date (i.e., US$3,022,000) exceeds the Net Worth as of the Closing Date (the "Final Closing Purchase Price Adjustment").
(d) To . The Purchase Price Adjustment shall be paid by Parent or Seller to Buyer by wire transfer in immediately available funds to an account designated in writing by Buyer. Notwithstanding the extent the Final Closing Adjustment is less than the Closing Adjustmentforegoing, Seller Parent shall pay the difference in cash not be required to Purchaser within five (5) days after the final determination. In the event the Final Closing Adjustment is greater than the Closing Adjustment, Purchaser shall pay such excess in cash to Seller within five (5) days after the final determination. If, following make any payment pursuant to this Section 4.4(d)2.3(c) in the event that the Purchase Price Adjustment is equal to or less than US$250,000; provided, an error (however that in billing or reporting by NRTC or otherwise) is thereafter discovered which would have affected the Final Closing Adjustment, event that the party in whose favor Purchase Price Adjustment exceeds US$250,000 Seller and Parent shall pay the error was made shall immediately pay in cash the entire amount of the Purchase Price Adjustment in full, without regard to such error threshold. The parties agree that to the other partyextent that any portion of a Purchase Price Adjustment required to be paid hereunder is directly attributable to the diminution in value of the US-Based Assets between the Reference Date and the Closing Date, Parent and NMT-US shall, at the request of the Buyer, cause such portion of the Purchase Price Adjustment to be paid directly to ISC, which amount shall be paid by Parent or NMT-US by wire transfer in immediately available funds to an account designated in writing by ISC.
Appears in 1 contract
Sources: Purchase Agreement (Integra Lifesciences Holdings Corp)
Adjustment to Purchase Price. (a) The Closing Payment shall be (i) increased by (a) the parties' good faith estimate of the Current Assets of Seller Sellers, (b) fifty percent (50%) of Sellers' cost of all DSS(TM) equipment sold on time to Subscribers through September 30, 1996, including actual installation costs associated therewith, (c) Fifty Dollars ($50.00) for each Subscriber who has purchased DSS(TM) equipment on time from Sellers through September 30, 1996; and (d) $233.75 for each new Subscriber acquired by Sellers during the period from November 1, 1996 through the Closing Date; and (ii) decreased by the parties' good faith estimate of the Current Liabilities of Seller Sellers as of the Closing Date (the "Closing Adjustment"), which adjustment shall be subject to final adjustment as provided for in paragraph (c) below. The Closing Adjustment shall not reflect any deduction for the Bad Debt Reserve, as defined below.
(b) No later than sixty ninety (6090) days after the Closing Date, or within three (3) days after receipt of the necessary accounting data from the NRTC Central Billing System, whichever is later, Purchaser Sellers shall make and deliver to Seller Purchaser a balance sheet reflecting the Current Assets and Current Liabilities of Seller Sellers as of the Closing Date (the "Closing Date Balance Sheet"), prepared on a basis consistent with GAAPthis Agreement. For purposes of the Closing Adjustment and the Final Closing Adjustment (as hereinafter defined)Adjustment, the amount of Accounts Receivable of Seller Sellers to be included in the Closing Date Balance Sheet shall include only Accounts Receivable of Subscribers as reflected on Report 18A (Subscriber Accounts Receivable Aging By by Account) of the NRTC Central Billing System Reports less a reserve of six percent (6%) for Accounts Receivable which are not collectiblecollectible as determined in accordance with GAAP (the "Bad Debt Reserve"). In addition, the Closing Date Balance Sheet and the Final Closing Adjustment shall not include as a Current Asset any accounts receivable arising from Leased Subscriber Equipment. Purchaser may, by providing Seller with written notice at least five (5) days prior to the Closing, elect to purchase all, or certain of, the DSS(TM) subscriber equipment owned leased or sold on time by Seller (other than Leased Subscriber Equipment) on Sellers to any of their Customers. Sellers shall make available to Purchaser their Records so Purchaser may verify the Closing Date; provided, however, Purchaser shall not have original cost of the right to acquire any assets attributable to Seller's Electric Business. Any such equipment which is purchased by Purchaser shall be included as Inventory in the Closing Date Balance SheetInventory. Except as set forth in this Section 4.4(b4.3(b), no other assets or liabilities shall be included in the Closing Date Balance Sheet. Seller Sellers shall make available to Purchaser such documentation, back-up, invoices, and books and records of Seller Sellers as Purchaser may reasonably request.
(c) Seller Sellers and Purchaser shall negotiate in good faith to reconcile any discrepancies which may arise in connection with the determination of the Closing Date Balance Sheet. If Seller Sellers and Purchaser are unable to reconcile such discrepanciesdetermination, Seller Purchaser shall have fifteen (15) days from presentment of the Closing Date Balance Sheet by Purchaser Sellers to notify Sellers if Purchaser if Seller wishes to have Purchaser's Sellers' determination examined. If Seller Purchaser elects to have Purchaser's Sellers' determination examined, it shall be submitted to the determination in AtlantaCharlotte, GeorgiaNorth Carolina, by the Certified Public Accounting firm of KMPG Peat Marwick Arth▇▇ ▇▇▇e▇▇▇▇ & ▇o. (or any other independent Certified Public Accounting firm mutually acceptable to Seller Sellers and Purchaser), the cost of such examination to be paid fifty percent (50%) by Seller Sellers and fifty percent (50%) by Purchaser; provided the fees of such firm shall not exceed $10,000. The results of such examination shall be made available to Sellers and Purchaser. The determination by Purchaser Sellers shall be final and binding on the parties unless Seller Purchaser elects to have an examination as provided herein, in which case the results of the examination shall be made within thirty (30) days of such referral, and shall be final and binding on the parties (the "Final Closing Adjustment").
(d) To the extent the Final Closing Adjustment is less than the Closing Adjustment, Seller Satellite shall pay (i) the difference in cash to Purchaser within five (5) days after the final determination; or (ii) in the event of nonpayment, Purchaser may exercise its Right of Offset pursuant to Section 10.5 hereof. In the event the Final Closing Adjustment is greater than the Closing Adjustment, Purchaser shall pay such excess in cash to Seller Satellite within five (5) days after the final determination. If, following any payment pursuant to this Section 4.4(d4.3(d), an error (in billing or reporting by NRTC or otherwise) is thereafter discovered which would have affected the Final Closing Adjustment, the party in whose favor the error was made shall immediately pay in cash the amount of such error to the other party.
(e) The parties hereto acknowledge and agree that Sellers shall be entitled to all commissions due from USSB, Home Shopping Network, DirecTv and others for periods prior to the Closing Date (the "Commissions"). In the event Purchaser receives a check for such Commissions or a credit for such amounts, Purchaser agrees to remit to Sellers such Commissions. Notwithstanding anything contained herein to the contrary, Sellers shall not be entitled to any Commissions payable with regard to periods after the Closing Date; it being acknowledged and agreed that such Commissions are a part of the Purchased Assets to be acquired by Purchaser pursuant to this Agreement.
Appears in 1 contract
Sources: Asset Purchase Agreement (Digital Television Services of Kansas LLC)
Adjustment to Purchase Price. The Closing Purchase Price was determined based on the assumption that the Working Capital at the Closing Date will be equal to the Target Working Capital. The Closing Purchase Price is subject to adjustment as follows:
(a) The Closing Payment shall be increased by the parties' good faith estimate of the Current Assets of Seller and decreased by the parties' good faith estimate of the Current Liabilities of Seller as of the Closing Date (the "Closing Adjustment"), which adjustment shall be subject to final adjustment as provided for in paragraph (c) below.
(b) No later than sixty (60) Within 60 days after the Closing Date, or within three (3) days after receipt of Purchaser will cause the necessary accounting data from the NRTC Central Billing System, whichever is later, Purchaser shall make Company to prepare and deliver provide to Seller a balance sheet reflecting the Current Assets and Current Liabilities of Seller as of both Parties the Closing Date (the "Closing Date Balance Sheet"), prepared on a basis consistent with GAAP. For purposes of the Closing Adjustment and the Final Closing Adjustment (as hereinafter defined), the amount of Accounts Receivable of Seller to be included in the Closing Date Balance Sheet shall include only Accounts Receivable of Subscribers as reflected on Report 18A (Subscriber Accounts Receivable Aging By Account) of the NRTC Central Billing System Reports less a reserve of six percent (6%) for Accounts Receivable which are not collectible. In addition, the Closing Date Balance Sheet and the Final Closing Adjustment shall not include as a Current Asset any accounts receivable arising from Leased Subscriber Equipment. Purchaser may, by providing Seller with written notice at least five (5) days prior to the Closing, elect to purchase all, or certain of, the DSS(TM) subscriber equipment owned by Seller (other than Leased Subscriber Equipment) on the Closing Date; provided, however, Purchaser shall not have the right to acquire any assets attributable to Seller's Electric Business. Any such equipment which is purchased by Purchaser shall be included as Inventory in the Closing Date Balance Sheet. Except as set forth in this Section 4.4(b), no other assets or liabilities shall be included in the Closing Date Balance Sheet. Seller shall make available to Purchaser such documentation, back-up, invoices, and books and records of Seller as Purchaser may reasonably requestWorking Capital Statement.
(cb) The Working Capital Statement and any associated Purchase Price adjustment shall become final and binding upon the Parties 30 days following the delivery to Seller of the Working Capital Statement, unless, within said 30-day period, Seller notifies Purchaser of its objection thereto in writing, which objection may only be that the Working Capital Statement was not properly prepared or computed in accordance with this Agreement. Any notice of objection shall specify in reasonable detail the reasons for objection. If Seller so notifies Purchaser of its objection to the Working Capital Statement, Purchaser and Purchaser Seller shall negotiate in good faith to reconcile resolve any discrepancies which differences. If, within 30 days following the giving of such notice by Seller (the “Resolution Period”), any of such differences have not been resolved, then either Purchaser or Seller may arise submit the dispute to the Independent Accounting Firm. The Independent Accounting Firm will conduct its own review and evaluate those items or amounts in connection with the determination Working Capital Statement relevant to the calculation of the Current Assets, Current Liabilities and Working Capital as of the Closing Date Balance Sheetand shall determine only those items still in dispute at the end of the Resolution Period and shall determine whether such items have been prepared in accordance with the terms of this Agreement. The Independent Accounting Firm will be granted reasonable access to all records of the Company and the Subsidiaries necessary for the conduct of such review, and the Parties agree to follow such procedures and make such submissions to the Independent Accounting Firm as it may request in conducting its review and making its determination under this Section 2.3(b). If Seller and Purchaser are unable to reconcile such discrepancies, Seller shall have fifteen (15) days from presentment of the Closing Date Balance Sheet by Purchaser to notify Purchaser if Seller wishes to have Purchaser's determination examined. If Seller elects to have Purchaser's determination examined, it shall be submitted to the determination in Atlanta, Georgia, so requested by the Certified Public Independent Accounting firm of KMPG Peat Marwick (or any other independent Certified Public Accounting firm mutually acceptable Firm, each Party agrees to Seller and Purchaser), the cost of such examination to be paid fifty percent (50%) by Seller and fifty percent (50%) by Purchaserexecute a reasonable engagement letter. The Independent Accounting Firm’s determination by Purchaser shall be final and binding on the parties unless Seller elects to have an examination as provided herein, in which case the results of the examination shall be made within thirty (30) 45 days of such referralafter its engagement, or as soon thereafter as possible, shall be set forth in a written statement delivered to Purchaser and Seller and shall be final become final, conclusive, non-appealable and binding for all purposes hereunder upon delivery to Purchaser and Seller. The determination of the Independent Accounting Firm shall not be deemed an award subject to review under any statute. The fees and expenses of the Independent Accounting Firm in resolving any differences pursuant to this Section 2.3(b) shall be paid by the Parties as determined by the Independent Accounting Firm, which determination shall be made based on the parties (resolution of the "Final Closing Adjustment")disputed items and the relative degree of success of each Party in such disputes.
(dc) To Within three business days after the extent Working Capital Statement becomes binding and conclusive on the Final Closing Adjustment Parties pursuant to Section 2.3(b), either (i) Purchaser shall pay to Seller the amount by which Working Capital, as reflected on the final Working Capital Statement, exceeds the Target Working Capital, or (ii) Seller shall pay to Purchaser the amount by which Working Capital, as reflected on the final Working Capital Statement, is less than the Target Working Capital, in either case with interest from the Closing Adjustment, Seller shall pay Date until payment at a rate per annum equal to the difference Reference Rate in cash to Purchaser within five (5) days after effect on the final determinationClosing Date. In the event the Final Closing Adjustment is greater than the Closing Adjustmenteither case, Purchaser shall pay such excess in cash to Seller within five (5) days after the final determination. If, following any payment pursuant to this Section 4.4(d), an error (in billing or reporting by NRTC or otherwise) is thereafter discovered which would have affected the Final Closing Adjustment, the party in whose favor the error was made shall immediately pay in cash the amount of such error payment shall be treated as an adjustment to the other partyClosing Purchase Price.
Appears in 1 contract
Adjustment to Purchase Price. (a) The Closing Payment shall be increased by If, the parties' good faith estimate of the Current Assets of Seller and decreased by the parties' good faith estimate of the Current Liabilities of Seller as of Accounts Receivable on the Closing Date are less than One Million Dollars ($1,000,000) (such amount, the "Closing Adjustment"“AR Target Amount”), which adjustment then the Purchase Price shall be subject reduced, dollar for dollar, by the difference between the Accounts Receivable amount on the Closing Date and the AR Target Amount. If, on the Closing Date, the Accounts Receivable are more than the AR Target Amount, then the Purchase Price to final be paid at the Closing shall be increased, dollar for dollar, by the difference between the Accounts Receivable amount on the Closing Date and the AR Target Amount. The adjustment described in this Section 3.2 shall be determined as provided for in paragraph follows: Within five (c) below.
(b) No later than sixty (605) days after the Closing Date, or within three (3) days after receipt Seller shall provide Buyer with a calculation of the necessary accounting data from the NRTC Central Billing System, whichever is later, Purchaser shall make and deliver to Seller a balance sheet reflecting the Current Assets and Current Liabilities of Seller Accounts Receivable as of the Closing Date (the "Closing Date Balance Sheet")Date, prepared on a basis consistent with GAAP. For purposes of the Closing Adjustment and the Final Closing Adjustment (as hereinafter defined), the amount of Accounts Receivable the adjustment (the “Proposed Adjustment”). If Buyer agrees to the Proposed Adjustment within 10 days of receipt of such Proposed Adjustment from the Seller or does not respond to be included in the Closing Date Balance Sheet shall include only Accounts Receivable of Subscribers as reflected on Report 18A (Subscriber Accounts Receivable Aging By Account) of the NRTC Central Billing System Reports less a reserve of six percent (6%) for Accounts Receivable which are not collectible. In additionSeller within such 10 day period, the Closing Date Balance Sheet and the Final Closing then such Proposed Adjustment shall not include as a Current Asset any accounts receivable arising from Leased Subscriber Equipment. Purchaser may, by providing Seller with written notice at least five be deemed the final adjustment (5) days prior to the Closing, elect to purchase all, or certain of, the DSS(TM) subscriber equipment owned by Seller (other than Leased Subscriber Equipment) on the Closing Date; provided, however, Purchaser shall not have the right to acquire any assets attributable to Seller's Electric Business. Any such equipment which is purchased by Purchaser shall be included as Inventory in the Closing Date Balance Sheet. Except as set forth in this Section 4.4(b“Final Adjustment”), no other assets or liabilities shall be included in the Closing Date Balance Sheet. Seller shall make available to Purchaser such documentation, back-up, invoices, and books and records of Seller as Purchaser may reasonably request.
(c) Seller and Purchaser shall negotiate in good faith to reconcile any discrepancies which may arise in connection with the determination of the Closing Date Balance Sheet. If Seller and Purchaser are unable to reconcile such discrepancies, Seller shall have fifteen (15) days from presentment of the Closing Date Balance Sheet by Purchaser to notify Purchaser if Seller wishes to have Purchaser's determination examined. If Seller elects to have Purchaser's determination examined, it shall be submitted to the determination in Atlanta, Georgia, by the Certified Public Accounting firm of KMPG Peat Marwick (or any other independent Certified Public Accounting firm mutually acceptable to Seller and Purchaser), the cost of such examination to be paid fifty percent (50%) by Seller and fifty percent (50%) by Purchaser. The determination by Purchaser shall be final and binding on Seller or the parties unless Seller elects to have an examination Buyer, as provided hereinapplicable, in which case the results of the examination shall be made within thirty (30) days of such referral, and shall be final and binding on the parties (the "Final Closing Adjustment").
(d) To the extent the Final Closing Adjustment is less than the Closing Adjustment, Seller shall pay the difference Final Adjustment to the other party, by wire transfer, in cash to Purchaser accordance with wire instructions provided by the applicable party, within five (5) days after the final determination. In the event determination of the Final Closing Adjustment. If the Buyer notifies the Seller within 10 days of receipt of the Proposed Adjustment is greater than the Closing that Buyer disagrees with such Proposed Adjustment, Purchaser then Buyer and Seller shall work diligently to resolve their differences within the next ten (10) days. If they come to an agreement on the adjustment during such ten (10) day period, their agreement will be deemed the Final Adjustment, and the applicable party shall pay such excess in cash to Seller the other party the Final Adjustment amount within five (5) days after of determination of such Final Adjustment. If the final determination. If, following any payment pursuant to this Section 4.4(d), an error (in billing or reporting by NRTC or otherwise) is thereafter discovered which would have affected the Final Closing Adjustment, the party in whose favor the error was made shall immediately pay in cash parties cannot agree on the amount of the adjustment within such error to ten (10) day period, then the Final Adjustment shall be determined by three accountants, one appointed by each of Buyer and Seller, and the third appointed by the other partytwo accountants. The accountants will determine the Final Adjustment, based on the terms of this Agreement, within fifteen (15) days of being appointed, and their decision shall be binding on the parties. The Buyer and the Seller will each be responsible for paying one half of the fees of the accountants.
Appears in 1 contract
Adjustment to Purchase Price. (a) The Closing Payment shall be increased by the parties' good faith estimate of the Current Assets of Seller and decreased by the parties' good faith estimate of the Current Liabilities of Seller as of the Closing Date (the "Closing Adjustment"), which adjustment shall be subject to final adjustment as provided for in paragraph (c) below.
(b) No later than sixty the close of business of the sixth (606th) days after Business Day preceding the Closing Date, the Seller shall prepare in good faith, at the Seller’s expense, and deliver to the Buyer a written statement setting forth: (i) a balance sheet of the Company (the “Preliminary Balance Sheet”), (ii) the Seller’s good-faith calculations (in reasonable detail) of the estimated Net Working Capital of the Company (the “Estimated Closing Date Net Working Capital”) and the estimated Net Indebtedness of the Company (the “Estimated Closing Date Net Indebtedness”) and (iii) on the basis of the foregoing, a calculation of the Estimated Closing Date Consideration (together with the balance sheet referred to in clause (i) and the calculations referred to in clause (ii) above, the “Preliminary Closing Statement”), in each case, (x) as of the close of business on the Closing Date without giving effect to the payments to be made in connection with the Closing and (y) in the case of the Preliminary Balance Sheet and the calculation of Estimated Closing Date Net Working Capital, prepared in accordance with the Accounting Policies. When the Seller delivers the Preliminary Closing Statement, the Seller shall also deliver to the Buyer a certificate signed by the Chief Financial Officer of the Seller, acting in such capacity, certifying that the Preliminary Closing Statement was prepared in accordance with the procedures set forth in this Section 1.2(a). In the event that Buyer notifies the Seller of any objection (which objections, if any, may reference only disagreements (A) based on mathematical errors or within (B) regarding whether the Estimated Closing Date Consideration, or the components thereof, as reflected on the Preliminary Closing Statement were calculated in accordance with this Section 1.2 and the applicable definitions) to the Preliminary Closing Statement no later than four (4) Business Days prior to the Closing Date, Buyer and the Seller shall discuss such objections in good faith and the Seller will, in good faith and after taking into account the discussion between the Seller and the Buyer, revise and re-deliver the Preliminary Closing Statement no later than three (3) days after receipt of the necessary accounting data from the NRTC Central Billing System, whichever is later, Purchaser shall make and deliver to Seller a balance sheet reflecting the Current Assets and Current Liabilities of Seller as of the Closing Date (the "Closing Date Balance Sheet"), prepared on a basis consistent with GAAP. For purposes of the Closing Adjustment and the Final Closing Adjustment (as hereinafter defined), the amount of Accounts Receivable of Seller to be included in the Closing Date Balance Sheet shall include only Accounts Receivable of Subscribers as reflected on Report 18A (Subscriber Accounts Receivable Aging By Account) of the NRTC Central Billing System Reports less a reserve of six percent (6%) for Accounts Receivable which are not collectible. In addition, the Closing Date Balance Sheet and the Final Closing Adjustment shall not include as a Current Asset any accounts receivable arising from Leased Subscriber Equipment. Purchaser may, by providing Seller with written notice at least five (5) days Business Days prior to Closing to reflect the Closing, elect to purchase all, or certain of, results of such discussion (which revised and redelivered Preliminary Closing Statement shall serve as the DSS(TM) subscriber equipment owned by Seller (other than Leased Subscriber Equipment) on the Preliminary Closing Date; provided, however, Purchaser shall not have the right to acquire any assets attributable to Seller's Electric Business. Any such equipment which is purchased by Purchaser shall be included as Inventory in the Closing Date Balance Sheet. Except as set forth in Statement for all purposes under this Section 4.4(bAgreement), no other assets or liabilities shall be included in the Closing Date Balance Sheet. Seller shall make available to Purchaser such documentation, back-up, invoicesshall, and books and records of Seller as Purchaser may shall cause the Company to, promptly provide all supporting documentation reasonably request.
(c) Seller and Purchaser shall negotiate in good faith to reconcile any discrepancies which may arise requested by the Buyer in connection with the determination Buyer and Parent’s review of the Preliminary Closing Date Balance Sheet. If Seller and Purchaser are unable to reconcile such discrepancies, Seller shall have fifteen (15) days from presentment of the Closing Date Balance Sheet by Purchaser to notify Purchaser if Seller wishes to have Purchaser's determination examined. If Seller elects to have Purchaser's determination examined, it shall be submitted to the determination in Atlanta, Georgia, by the Certified Public Accounting firm of KMPG Peat Marwick (or any other independent Certified Public Accounting firm mutually acceptable to Seller and Purchaser), the cost of such examination to be paid fifty percent (50%) by Seller and fifty percent (50%) by Purchaser. The determination by Purchaser shall be final and binding on the parties unless Seller elects to have an examination as provided herein, in which case the results of the examination shall be made within thirty (30) days of such referral, and shall be final and binding on the parties (the "Final Closing Adjustment")Statement.
(d) To the extent the Final Closing Adjustment is less than the Closing Adjustment, Seller shall pay the difference in cash to Purchaser within five (5) days after the final determination. In the event the Final Closing Adjustment is greater than the Closing Adjustment, Purchaser shall pay such excess in cash to Seller within five (5) days after the final determination. If, following any payment pursuant to this Section 4.4(d), an error (in billing or reporting by NRTC or otherwise) is thereafter discovered which would have affected the Final Closing Adjustment, the party in whose favor the error was made shall immediately pay in cash the amount of such error to the other party.
Appears in 1 contract
Sources: Membership Interests Purchase Agreement (Uniti Group Inc.)
Adjustment to Purchase Price. (a) The Closing Payment Purchase Price shall be increased by or reduced as set forth in Section 2.6(f) hereof. Any increase or decrease in the parties' good faith estimate of the Current Assets of Seller and decreased by the parties' good faith estimate of the Current Liabilities of Seller as of the Closing Date (the "Closing Adjustment"), which adjustment Purchase Price pursuant to this Section 2.6 shall be subject referred to final adjustment as provided for in paragraph (c) belowa “Purchase Price Adjustment”.
(b) No later than Within sixty (60) days after the Closing Date, or within three (3) days after receipt of the necessary accounting data from the NRTC Central Billing System, whichever is later, Purchaser Buyer shall make prepare and deliver to Seller a balance sheet reflecting statement (the Current Assets and Current Liabilities of Seller as “Preliminary Closing Statement”) which sets forth (i) Buyer’s calculation of the Closing Date Cash and (the "Closing Date Balance Sheet"ii) Buyer’s calculation of Net Working Capital (and any Net Working Capital Deficit or Net Working Capital Surplus), prepared on a basis consistent with GAAP. For purposes of the Closing Adjustment and the Final Closing Adjustment (as hereinafter defined), the amount of Accounts Receivable of Seller to be included in the Closing Date Balance Sheet shall include only Accounts Receivable of Subscribers as reflected on Report 18A (Subscriber Accounts Receivable Aging By Account) of the NRTC Central Billing System Reports less a reserve of six percent (6%) for Accounts Receivable which are not collectible. In addition, the Closing Date Balance Sheet and the Final Closing Adjustment shall not include as a Current Asset any accounts receivable arising from Leased Subscriber Equipment. Purchaser may, by providing Seller with written notice at least five (5) days prior to the Closing, elect to purchase all, or certain of, the DSS(TM) subscriber equipment owned by Seller (other than Leased Subscriber Equipment) on the Closing Date; provided, however, Purchaser shall not have the right to acquire any assets attributable to Seller's Electric Business. Any such equipment which is purchased by Purchaser shall be included as Inventory in the Closing Date Balance Sheet. Except as set forth in this Section 4.4(b), no other assets or liabilities shall be included in the Closing Date Balance Sheet. Seller shall make available to Purchaser such documentation, back-up, invoices, and books and records of Seller as Purchaser may reasonably request.
(c) The Seller shall have a period of thirty (30) days after the date it receives the Preliminary Closing Statement from Buyer to deliver to Buyer written notice of the Seller’s disagreement with any item contained in the Preliminary Closing Statement, which notice shall set forth in reasonable detail the basis for such disagreement (a “Notice of Disagreement”). During the thirty (30) day period following the Seller’s receipt of the Preliminary Closing Statement, Buyer shall (i) permit the Seller and Purchaser its accountants, advisors and other representatives to consult with Buyer’s accountants and advisors during reasonable hours and (ii) provide to the Seller and its accountants, advisors and other representatives reasonable access during reasonable hours and under reasonable circumstances to all relevant books and records and any work papers (including those of Buyer’s accountants subject to execution of appropriate confidentiality agreements with Buyer’s accountants) relating to the preparation of the Preliminary Closing Statement, in each case as reasonably requested by the Seller in connection with the Seller’s review of the Preliminary Closing Statement. During the thirty (30) days following Buyer’s receipt of a Notice of Disagreement, Buyer and the Seller shall negotiate seek in good faith to reconcile resolve in writing any discrepancies differences which may arise they have with respect to the matters specified in connection the Notice of Disagreement, and upon such resolution, the Final Closing Statement shall be prepared in accordance with the determination agreement of Buyer and the Closing Date Balance SheetSeller. Any written resolution by Buyer and the Seller during such thirty (30) day period following Buyer’s receipt of a Notice of Disagreement as to any item identified in the Notice of Disagreement will be final, binding and conclusive on the Parties.
(d) If Buyer and the Seller and Purchaser are unable to reconcile such discrepancies, Seller shall have fifteen (15) days from presentment resolve any disputed items set forth in the Notice of the Closing Date Balance Sheet by Purchaser to notify Purchaser if Seller wishes to have Purchaser's determination examined. If Seller elects to have Purchaser's determination examined, it shall be submitted to the determination in Atlanta, Georgia, by the Certified Public Accounting firm of KMPG Peat Marwick (or any other independent Certified Public Accounting firm mutually acceptable to Seller and Purchaser), the cost of such examination to be paid fifty percent (50%) by Seller and fifty percent (50%) by Purchaser. The determination by Purchaser shall be final and binding on the parties unless Seller elects to have an examination as provided herein, in which case the results of the examination shall be made Disagreement within thirty (30) days following Buyer’s receipt of such referralNotice of Disagreement (or such longer period as Buyer and the Seller may mutually agree in writing), then, with respect to such items in the Notice of Disagreement that remain in dispute, the Buyer and Seller shall submit such dispute to, and all issues having a bearing on such dispute shall be resolved by, a nationally recognized accounting firm mutually agreed upon by Buyer and the Seller (or, if Buyer and the Seller cannot agree on an accounting firm within fifteen (15) days after such thirty (30) day dispute resolution period, each of Buyer and the Seller shall promptly select a nationally recognized accounting firm and such two accounting firms shall designate a third nationally recognized accounting firm that neither presently is, nor in the past three years has been, engaged by either Party). The accounting firm so agreed to by Buyer and the Seller or the third accounting firm so selected by the two accounting firms in accordance with the immediately preceding sentence is hereinafter referred to as the “Accounting Firm”. Buyer and the Seller shall submit to the Accounting Firm for review and resolution all matters (but only such matters) that are set forth in the Notice of Disagreement which remain in dispute. Buyer and the Seller shall instruct the Accounting Firm to select one of its partners experienced in purchase price adjustment disputes to make a final determination of the Closing Date Cash and the Net Working Capital calculated with reference to the items that are in dispute as set forth in the Notice of Disagreement. Buyer and the Seller shall instruct the Accounting Firm that, in resolving the items in the Notice of Disagreement that are still in dispute and in determining the Closing Date Cash and the Net Working Capital, the Accounting Firm shall (i) not assign to any item in dispute a value that is (A) greater than the greatest value for such item assigned by Buyer, on the one hand, or the Seller, on the other hand, or (B) less than the smallest value for such item assigned by Buyer, on the one hand, or the Seller, on the other hand, (ii) make its determination based on an independent review (which will be in accordance with the guidelines and procedures set forth in this Agreement) and, at the Accounting Firm’s discretion, a one-day conference concerning the dispute, at which conference each of Buyer and the Seller shall have the right to present their respective positions with respect to the dispute and have present their respective advisors, counsel and accountants, (iii) render a final resolution in writing to Buyer and the Seller (which final resolution shall be requested by Buyer and the Seller to be delivered not more than forty-five (45) days following submission of such disputed matters), which shall be final, conclusive and binding on the parties Parties with respect to the Closing Date Cash and the Net Working Capital and (iv) provide a written report to Buyer and the "Final Closing Adjustment")Seller, if requested by either of them, which sets forth in reasonable detail the basis for the Accounting Firm’s final determination. The fees and expenses of the Accounting Firm shall be allocated between Buyer, on the one hand, and the Seller, on the other hand, based upon the percentage by which the portion of the contested amount not awarded to each of Buyer and the Seller bears to the total amount actually contested by such Parties.
(de) To The Preliminary Closing Statement (as revised to reflect the extent resolution of any disputed matters in accordance with this Section 2.6) shall be deemed to be the Final Closing Adjustment is less than Statement for the purposes of this Section 2.6 upon the earliest of (i) the failure of the Seller to provide a Notice of Disagreement within thirty (30) days after the Seller receives the Preliminary Closing AdjustmentStatement, (ii) the resolution in writing of all disputes set forth in the Notice of Disagreement pursuant to Section 2.6(c) by the Buyer and the Seller shall pay and (iii) the difference resolution of all disputes set forth in cash the Notice of Disagreement pursuant to Purchaser within Section 2.6(d) by the Accounting Firm.
(f) Within five (5) days after Business Days following the final determination. In the event determination of the Final Closing Statement in accordance with Section 2.6(e):
(i) If there is a Final Deficit, then the Buyer shall be entitled to claim, first, from the Purchase Price Adjustment Escrow Fund, an amount equal to such Final Deficit, and, second (if the Final Deficit exceeds the Purchase Price Adjustment Escrow Amount), the balance of the Final Deficit from the Indemnity Escrow Fund.
(ii) If there is greater than the Closing Adjustmenta Final Surplus, Purchaser then Buyer shall pay to the Seller an amount equal to such excess in cash Final Surplus.
(iii) Promptly after the payment of a Final Deficit or a Final Surplus, as applicable, Buyer and Seller shall direct the Escrow Agent to disburse the balance of the Purchase Price Adjustment Escrow Amount (including any income and interest earned thereon) to Seller within five in accordance with the Escrow Agreement.
(5g) days after the final determination. If, following any Each payment pursuant to required under this Section 4.4(d), an error (in billing or reporting by NRTC or otherwise) is thereafter discovered which would have affected the Final Closing Adjustment, the party in whose favor the error was made 2.6 shall immediately pay in cash include simple interest on the amount of such error payment from the Closing Date up to but excluding the date on which such payment is made at a two percent (2%) rate per annum and shall be made in cash by wire transfer of immediately available funds to such bank account(s) as shall be designated in writing by the recipient(s) at least two (2) Business Days prior to the other partyapplicable payment date.
Appears in 1 contract
Sources: Stock Purchase Agreement (Trimble Navigation LTD /Ca/)
Adjustment to Purchase Price. (a) The Closing Payment shall be increased by the parties' good faith estimate of the Current Assets of Seller and decreased by the parties' good faith estimate of the Current Liabilities of Seller as of the Closing Date (the "Closing Adjustment"), which adjustment shall be subject to final adjustment as provided for in paragraph (c) below.
(b) No later than sixty thirty (6030) days after the Closing Date, or within three (3) days after receipt of the necessary accounting data from the NRTC Central Billing System, whichever is later, Purchaser Seller shall make and deliver to Seller Purchaser a balance sheet reflecting the Current Assets and Current Liabilities of Seller as of the Closing Date (the "Closing Date Balance Sheet"), prepared on a basis consistent with GAAPthe "Pro Forma Accounting" attached hereto as Schedule 4.3(b). For purposes of the Closing Adjustment and the Final Closing Adjustment (as hereinafter defined)Adjustment, the amount of Accounts Receivable of Seller to be included in the Closing Date Balance Sheet shall include only Accounts Receivable of Subscribers as reflected on Report 18A (Subscriber Accounts Receivable Aging By by Account) of the NRTC Central Billing System Reports less a reserve of six percent (6%) for Accounts Receivable which are not collectible. In addition, the Closing Date Balance Sheet and the Final Closing Adjustment shall not include collectible as a Current Asset any accounts receivable arising from Leased Subscriber Equipmentdetermined in accordance with GAAP. Purchaser may, by providing Seller with written notice at least five (5) days prior to the Closing, elect to purchase all, or certain of, the DSS(TM) subscriber equipment owned by Seller (other than Leased Subscriber Equipment) on the Closing Date; provided, however, Purchaser shall not have the right to acquire any assets attributable to Seller's Electric Businessmini-cable systems business operated on college campuses. Any such equipment which is purchased by Purchaser shall be included as Inventory in the Closing Date Balance Sheet. Except as set forth in this Section 4.4(b), no other assets or liabilities shall be included in the Closing Date Balance Sheet. Seller shall make available to Purchaser such documentation, back-up, invoices, and books and records of Seller as Purchaser may reasonably request.
(c) Seller and Purchaser shall negotiate in good faith to reconcile any discrepancies which may arise in connection with the determination of the Closing Date Balance Sheet. If Seller and Purchaser are unable to reconcile such discrepanciesdetermination, Seller Purchaser shall have fifteen (15) days from presentment of the Closing Date Balance Sheet by Purchaser Seller to notify Seller if Purchaser if Seller wishes to have PurchaserSeller's determination examined. If Seller Purchaser elects to have PurchaserSeller's determination examined, it shall be submitted to the determination in AtlantaCharlotte, GeorgiaNorth Carolina, by the Certified Public Accounting firm of KMPG Peat Marwick (or any other independent Certified Public Accounting firm mutually acceptable to Seller and Purchaser)Arth▇▇ ▇▇▇e▇▇▇▇ & ▇o., the cost of such examination to be paid fifty percent (50%) by Seller and fifty percent (50%) by Purchaser. The determination by Purchaser Seller shall be final and binding on the parties unless Seller Purchaser elects to have an examination as provided herein, in which case the results of the examination shall be made within thirty (30) days of such referral, and shall be final and binding on the parties (the "Final Closing Adjustment").
(d) To the extent the Final Closing Adjustment is less than the Closing Adjustment, Seller shall (i) pay the difference in cash to Purchaser within five (5) days after the final determination, or (ii) in the event of nonpayment, Purchaser may exercise its Right of Offset pursuant to Section 10.5 hereof. In the event the Final Closing Adjustment is greater than the Closing Adjustment, Purchaser shall immediately pay such excess in cash to Seller within five (5by increasing the next following payment(s) days after due under the final determinationNotes by such amount. If, following any payment pursuant to this Section 4.4(d4.3(d), an error (in billing or reporting by NRTC or otherwise) is thereafter discovered which would have affected the Final Closing Adjustment, the party in whose favor the error was made shall immediately pay in cash the amount of such error to the other party.
Appears in 1 contract
Sources: Asset Purchase Agreement (Digital Television Services of Kansas LLC)
Adjustment to Purchase Price. (a) The Prior to the Closing Payment Seller shall be increased by the parties' have delivered to Purchaser Seller’s good faith estimate of the Current Assets of Seller Adjusted Purchase Price (and decreased by the parties' good faith estimate of the Current Liabilities of Seller each component thereof) as of the anticipated Closing Date (the "Closing Adjustment"“Estimated Adjusted Purchase Price”), which adjustment . Seller’s estimate shall be subject to final adjustment as provided for prepared in paragraph (c) belowaccordance with the Accounting Principles.
(b) No later than sixty Within ninety (6090) days after the Closing Date, or within three (3) days after receipt of the necessary accounting data from the NRTC Central Billing System, whichever is later, Purchaser shall make prepare and deliver to Seller a balance sheet reflecting statement setting forth the Current Assets and Current Liabilities of Seller as Purchaser’s determination of the Closing Date Adjusted Purchase Price (and each component thereof) (the "“Closing Date Balance Sheet"), prepared on a basis consistent with GAAP. For purposes of Statement”) showing in reasonable detail any and all changes reflected therein from the Closing Adjustment and the Final Closing Adjustment (as hereinafter defined), the amount of Accounts Receivable of Seller to be included amounts reflected in the statement of Estimated Adjusted Purchase Price delivered pursuant to Section 2.8(a). The Closing Date Balance Sheet shall include only Accounts Receivable of Subscribers as reflected on Report 18A (Subscriber Accounts Receivable Aging By Account) of the NRTC Central Billing System Reports less a reserve of six percent (6%) for Accounts Receivable which are not collectible. In addition, the Closing Date Balance Sheet and the Final Closing Adjustment shall not include as a Current Asset any accounts receivable arising from Leased Subscriber Equipment. Purchaser may, by providing Seller with written notice at least five (5) days prior to the Closing, elect to purchase all, or certain of, the DSS(TM) subscriber equipment owned by Seller (other than Leased Subscriber Equipment) on the Closing Date; provided, however, Purchaser shall not have the right to acquire any assets attributable to Seller's Electric Business. Any such equipment which is purchased by Purchaser Statement shall be included as Inventory in based upon the Closing Date Balance Sheet. Except as set forth in this Section 4.4(b), no other assets or liabilities shall be included in the Closing Date Balance Sheet. Seller shall make available to Purchaser such documentation, back-up, invoices, and books and records of Seller as Purchaser may reasonably requestand shall be prepared in accordance with the Accounting Principles.
(c) Seller and Purchaser shall negotiate in good faith to reconcile any discrepancies which may arise in connection with the determination of the The Closing Date Balance Sheet. If Seller and Purchaser are unable to reconcile such discrepancies, Seller shall have fifteen (15) days from presentment of the Closing Date Balance Sheet by Purchaser to notify Purchaser if Seller wishes to have Purchaser's determination examined. If Seller elects to have Purchaser's determination examined, it shall be submitted to the determination in Atlanta, Georgia, by the Certified Public Accounting firm of KMPG Peat Marwick (or any other independent Certified Public Accounting firm mutually acceptable to Seller and Purchaser), the cost of such examination to be paid fifty percent (50%) by Seller and fifty percent (50%) by Purchaser. The determination by Purchaser Statement shall be final and binding on the parties unless Seller elects delivers to have an examination Purchaser a written notice of disagreement with the Closing Statement within forty-five (45) days following the receipt thereof. Such written notice shall describe the nature of any such disagreement in reasonable detail, identifying the specific items as provided herein, in to which case the results of the examination Seller disagrees and shall be made accompanied by reasonable supporting documentation. During such forty-five (45) day period, Purchaser shall provide Seller and Seller’s advisors with on-site access and access via telephone and e-mail communications and transmissions during regular business hours and upon reasonable notice to all relevant books and records and employees (including key accounting and finance personnel) of Seller to the extent necessary to review the matters and information used to prepare and to support the Closing Statement, all in a manner not unreasonably interfering with the business of Purchaser. If Seller delivers a notice of disagreement in a timely manner, then Seller and Purchaser shall attempt to resolve all such matters identified in such notice. If Seller and Purchaser are unable to resolve all such disagreements within thirty (30) days after the receipt by Purchaser of the notice of disagreement (or such referrallonger period as may be agreed by Purchaser and Seller), then the remaining disputed matters shall be promptly submitted to the Accounting Arbitrator for binding resolution. The Accounting Arbitrator will consider only those items and amounts set forth in the Closing Statement as to which Purchaser and Seller have disagreed and shall resolve such disagreements in accordance with the terms and provisions of this Agreement. The Accounting Arbitrator shall issue a written report containing a final Closing Statement setting forth its determination of the Adjusted Purchase Price, which determination shall be final and binding upon Purchaser and Seller. The fees and expenses of the Accounting Arbitrator incurred in connection with the determination of the disputed items shall be paid by Purchaser and by Seller based on the parties (relative success of their positions as compared to the "Final final determination of the Accounting Arbitrator. Purchaser and Seller shall cooperate fully with the Accounting Arbitrator and respond on a timely basis to all requests for information or access to documents or personnel made by the Accounting Arbitrator, all with the intent to fairly and in good faith resolve all disputes relating to the Closing Adjustment")Statement as promptly as reasonably practicable.
(d) To If the extent amount of the Final Closing Adjustment Adjusted Purchase Price, as finally determined in accordance with Section 2.8(c) is less than the Closing Adjustmentamount of the Estimated Adjusted Purchase Price, Seller then the amount of such difference shall pay the difference in cash be paid to Purchaser by the Seller, by wire transfer within five (5) days Business Days after the final determinationdetermination of the Adjusted Purchase Price. In If the event amount of the Final Closing Adjustment Adjusted Purchase Price, as finally determined in accordance with Section 2.8(c), is greater than the Closing Adjustmentamount equal to the Estimated Adjusted Purchase Price, then the amount of such difference shall be paid by Purchaser shall pay such excess in cash to Seller Seller, by wire transfer within five (5) days Business Days after the final determinationdetermination of the Adjusted Purchase Price. If, following any payment All amounts paid pursuant to this Section 4.4(d), 2.8(d) shall be calculated as an error (in billing or reporting by NRTC or otherwise) is thereafter discovered which would have affected the Final Closing Adjustment, the party in whose favor the error was made shall immediately pay in cash the amount of such error adjustment to the other partyAdjusted Purchase Price.
Appears in 1 contract
Sources: Asset Purchase Agreement (Emmis Communications Corp)
Adjustment to Purchase Price. (a) Subject to Sections 3.3(b) and 3.3(c), the Purchase Price shall be adjusted, without duplication, to account for the items set forth in this Section 3.3(a):
(i) The Closing Payment Purchase Price shall be adjusted to account for the items prorated pursuant to Section 3.6; Prepaid Expenses; and
(iii) The Purchase Price shall be increased by the parties' good faith estimate amount of the Current Assets of Seller and decreased The Purchase Price shall be adjusted by the parties' good faith estimate amount of any change to the Current Liabilities of Seller as of FMPA Transfer Payment in accordance with the Closing Date (FMPA Transfer Agreement, to the "Closing Adjustment"), which adjustment shall be subject to final adjustment as provided for in paragraph (c) belowextent approved by Buyer.
(b) No later fewer than ten (10) Business Days prior to the Closing Date, Seller shall prepare in good faith and deliver to Buyer an estimated closing statement (the “Estimated Closing Statement”) that shall set forth Seller’s best estimate of all estimated adjustments to the Purchase Price required by Section 3.3(a) (collectively, the “Estimated Closing Adjustments”) together with reasonable supporting information and documentation, which shall include a reasonably detailed explanation of the calculation of the Estimated Closing Adjustments and documentation sufficient to confirm the accuracy of such calculation. The Estimated Closing Statement shall be prepared using the same accounting principles, policies and methods as Seller has historically used in connection with the calculation of the items reflected on such Estimated Closing Statement.
(c) Within sixty (60) days Business Days after the Closing Date, or within three (3) days after receipt of the necessary accounting data from the NRTC Central Billing System, whichever is later, Purchaser Seller shall make prepare and deliver to Seller Buyer a balance sheet reflecting final closing statement (the Current Assets “Post-Closing Statement”) that shall set forth all adjustments and Current Liabilities of Seller as any prorations pursuant to Section 3.6(b), to the Purchase Price required by Section 3.3(a) (the “Proposed Post-Closing Adjustment”) together with reasonable supporting information and documentation, which shall include a reasonably detailed explanation of the Closing Date (the "Closing Date Balance Sheet"), prepared on a basis consistent with GAAP. For purposes calculation of the Proposed Post-Closing Adjustment Adjustments and documentation sufficient to confirm the Final accuracy of such calculation. The Post-Closing Adjustment (as hereinafter defined), the amount of Accounts Receivable of Seller to be included in the Closing Date Balance Sheet shall include only Accounts Receivable of Subscribers as reflected on Report 18A (Subscriber Accounts Receivable Aging By Account) of the NRTC Central Billing System Reports less a reserve of six percent (6%) for Accounts Receivable which are not collectible. In addition, the Closing Date Balance Sheet and the Final Closing Adjustment shall not include as a Current Asset any accounts receivable arising from Leased Subscriber Equipment. Purchaser may, by providing Seller with written notice at least five (5) days prior to the Closing, elect to purchase all, or certain of, the DSS(TM) subscriber equipment owned by Seller (other than Leased Subscriber Equipment) on the Closing Date; provided, however, Purchaser shall not have the right to acquire any assets attributable to Seller's Electric Business. Any such equipment which is purchased by Purchaser Statement shall be included prepared using the same accounting principles, policies and methods as Inventory in the Closing Date Balance Sheet. Except as set forth in this Section 4.4(b), no other assets or liabilities shall be included in the Closing Date Balance Sheet. Seller shall make available to Purchaser such documentation, back-up, invoices, and books and records of Seller as Purchaser may reasonably request.
(c) Seller and Purchaser shall negotiate in good faith to reconcile any discrepancies which may arise has historically used in connection with the determination calculation of the items reflected on such Post-Closing Date Balance SheetStatement. If Seller and Purchaser are unable to reconcile such discrepancies, Seller shall have fifteen (15) days from presentment of the Closing Date Balance Sheet by Purchaser to notify Purchaser if Seller Buyer wishes to have Purchaser's determination examined. If Seller elects to have Purchaser's determination examined, it shall be submitted object to the determination in AtlantaProposed Post-Closing Adjustment, Georgia, by the Certified Public Accounting firm of KMPG Peat Marwick (or any other independent Certified Public Accounting firm mutually acceptable Buyer must give notice to Seller and Purchaser), the cost of such examination to be paid fifty percent (50%) by Seller and fifty percent (50%) by Purchaser. The determination by Purchaser shall be final and binding on the parties unless Seller elects to have an examination as provided herein, in which case the results of the examination shall be made objection within thirty (30) days after the delivery of the Post-Closing Statement by Seller to Buyer, which objection shall include detailed information for such objections and documentation sufficient to confirm the accuracy of such referral, objections. Seller and shall be final Buyer agree to cooperate with one another to provide one another with the information used to prepare the Post-Closing Statement or any objection thereto and binding on information relating thereto. If Buyer objects to the parties (the "Final Closing Adjustment").
(d) To the extent the Final Closing Adjustment is less than the Proposed Post-Closing Adjustment, Seller the Parties shall pay attempt to resolve such dispute by negotiation. If the difference in cash Parties do not fully resolve such dispute within thirty (30) days after any objection by Buyer, the Parties shall appoint the Independent Accounting Firm (with the cost of such Independent Accounting Firm to Purchaser be borne equally by the Parties) within five fifteen (515) days after the final determination. In expiration of such thirty (30) day period to review the event remaining dispute regarding the Final Proposed Post-Closing Adjustment is greater than and determine, subject to any prorations pursuant to Section 3.6(b), the Closing Adjustmentappropriate adjustment to the Purchase Price, Purchaser shall pay such excess in cash to Seller if any, within five thirty (530) days after such appointment. The Parties agree to cooperate with the final Independent Accounting Firm and provide it with such information as it reasonably requests to enable it to make such determination. If, following any payment pursuant The Independent Accounting Firm shall act as an expert and not as an arbitrator and shall make findings only with respect to this Section 4.4(dthe remaining disputes so submitted to it (and not by independent review), an error . The finding of such Independent Accounting Firm shall be binding on the Parties hereto. Upon determination of the appropriate adjustment (in billing or reporting by NRTC or otherwise) is thereafter discovered which would have affected the Final “Post-Closing Adjustment”) by agreement of the Parties or by binding determination of the Independent Accounting Firm, the party in whose favor Party owing the error was made difference shall immediately pay in cash the deliver such amount of such error to the other partyParty no later than thirty (30) days after such determination, in immediately available funds or in any other manner as reasonably requested by the payee.
Appears in 1 contract
Sources: Asset Purchase and Sale Agreement
Adjustment to Purchase Price. (a) The Closing Payment $1,000,000 Hold Back shall be increased held in escrow during the Six Month Period in order to ensure that all of the Assets are transferred to Purchaser, that such Assets are in operable condition, and that all representations, warranties, covenants and agreements of Seller have been satisfied and/or are true and correct in all material respects. In the event that any of the Assets are not conveyed to Purchaser or are conveyed to Purchaser in an inoperable condition, or if Purchaser has suffered damages as a result of the material breach or inaccuracy of the representations, warranties, covenants and agreements of Seller contained in this Agreement or any exhibit or schedule thereto, then the Purchaser shall so notify Seller of any such missing assets, defects or damages, in writing, prior to the expiration of the Six Month Period. Unless disputed by Seller, the Purchase Price shall be reduced by the parties' good faith estimate book value (as reflected on the September 30 Balance Sheet and any supplemental schedules thereto, without taking into consideration any accumulated depreciation) of the Current Assets of Seller and decreased by the parties' good faith estimate of the Current Liabilities of Seller any Asset not so conveyed or in an inoperable condition as of the Closing Date (the "Closing Adjustment"), which adjustment shall be subject to final adjustment as provided for in paragraph (c) below.
(b) No later than sixty (60) days after the Closing Date, or within three (3) days after receipt of the necessary accounting data from the NRTC Central Billing System, whichever is later, Purchaser shall make and deliver to Seller a balance sheet reflecting the Current Assets and Current Liabilities of Seller as of the Closing Date (the "Closing Date Balance Sheet"), prepared on a basis consistent with GAAP. For purposes of the Closing Adjustment and the Final Closing Adjustment (as hereinafter defined), and/or the amount of Accounts Receivable damages suffered by Purchaser arising from the breach or inaccuracy of Seller to be included the representations, warranties, covenants and agreements of Seller. The Escrow Agreement shall provide that in the event of a reduction in the Purchase Price under this Section 1.4.3, the Escrow Agent shall release to the Purchaser from the $1 Million Hold Back an amount equal to the reduction in the Purchase Price. Notwithstanding the above, prior to any adjustment, the book value of the Equipment and Inventory actually transferred to Purchaser at Closing Date Balance Sheet shall include only Accounts Receivable must vary by at least 10% from the book value of Subscribers such Equipment and Inventory as reflected on Report 18A (Subscriber Accounts Receivable Aging By Account) of the NRTC Central Billing System Reports less a reserve of six percent (6%) for Accounts Receivable which are not collectible. In addition, the Closing Date September 30 Balance Sheet (without regard to accumulated depreciation), and the Final Closing Adjustment shall not include as a Current Asset any accounts receivable arising from Leased Subscriber Equipment. Purchaser may, by providing Seller with written notice at least five (5) days prior adjustment to the Closing, elect to purchase all, or certain of, the DSS(TM) subscriber equipment owned by Seller (other than Leased Subscriber Equipment) on the Closing Date; provided, however, Purchaser Purchase Price shall not have the right to acquire any assets attributable to Seller's Electric Business. Any such equipment which is purchased by Purchaser shall only be included as Inventory in the Closing Date Balance Sheet. Except as set forth in this Section 4.4(b), no other assets or liabilities shall be included in the Closing Date Balance Sheet. Seller shall make available to Purchaser such documentation, back-up, invoices, and books and records of Seller as Purchaser may reasonably request.
(c) Seller and Purchaser shall negotiate in good faith to reconcile any discrepancies which may arise in connection with the determination of the Closing Date Balance Sheet. If Seller and Purchaser are unable to reconcile such discrepancies, Seller shall have fifteen (15) days from presentment of the Closing Date Balance Sheet by Purchaser to notify Purchaser if Seller wishes to have Purchaser's determination examined. If Seller elects to have Purchaser's determination examined, it shall be submitted made to the determination in Atlanta, Georgia, by the Certified Public Accounting firm of KMPG Peat Marwick (or any other independent Certified Public Accounting firm mutually acceptable to Seller and Purchaser), the cost extent such variance exceeds 10% of such examination to be paid fifty percent (50%) by Seller and fifty percent (50%) by Purchaser. The determination by Purchaser shall be final and binding on the parties unless Seller elects to have an examination as provided herein, in which case the results of the examination shall be made within thirty (30) days of such referral, and shall be final and binding on the parties (the "Final Closing Adjustment")book value.
(d) To the extent the Final Closing Adjustment is less than the Closing Adjustment, Seller shall pay the difference in cash to Purchaser within five (5) days after the final determination. In the event the Final Closing Adjustment is greater than the Closing Adjustment, Purchaser shall pay such excess in cash to Seller within five (5) days after the final determination. If, following any payment pursuant to this Section 4.4(d), an error (in billing or reporting by NRTC or otherwise) is thereafter discovered which would have affected the Final Closing Adjustment, the party in whose favor the error was made shall immediately pay in cash the amount of such error to the other party.
Appears in 1 contract
Sources: Asset Purchase Agreement (Swift Transportation Co Inc)
Adjustment to Purchase Price. (a) The Seller has delivered or caused to be delivered to Buyer a statement (the “Estimated Closing Payment shall be increased by the parties' Statement”) setting forth Seller’s reasonable good faith estimate of the Current Assets of Seller and decreased by the parties' good faith estimate (i) a consolidated balance sheet of the Current Liabilities of Seller Company and the Subsidiaries as of the Closing Date Calculation Time (the "“Estimated Closing Adjustment"Balance Sheet”), which adjustment shall be subject (ii) a calculation of the Net Working Capital of the Company and the Subsidiaries as of the Calculation Time (the “Estimated Closing Net Working Capital”), (iii) a calculation of the Cash of the Company and the Subsidiaries as of immediately prior to final adjustment the Closing (the “Estimated Closing Cash Balance”), (iv) a calculation of the Indebtedness of the Company and the Subsidiaries as provided of immediately prior to the Closing (but calculated to include any amounts that only become payable if the Closing occurs) (the “Estimated Closing Indebtedness Amount”) and (v) a calculation of the Seller Transaction Expenses as of immediately prior to the Closing (but calculated to include any amounts that only become payable if the Closing occurs) (the “Estimated Seller Transaction Expenses”). The Estimated Closing Statement has been prepared in accordance with the Accounting Principles as interpreted, in good faith, by Seller. It is understood that Buyer has not and does not waive any rights to take a contrary position to that reflected in the Estimated Closing Statement in connection with the preparation of the Closing Statement or any calculation set forth therein, or for in paragraph (c) belowany other purpose under this Agreement or otherwise.
(b) No later than Within sixty (60) calendar days after the Closing DateClosing, or within three (3) days after receipt of the necessary accounting data from the NRTC Central Billing System, whichever is later, Purchaser Buyer shall make prepare and deliver to Seller (i) a consolidated balance sheet reflecting of the Current Assets Company and Current Liabilities of Seller the Subsidiaries as of the Closing Date Calculation Time (the "“Closing Date Balance Sheet"”), (ii) a calculation of the Net Working Capital of the Company and the Subsidiaries as of the Calculation Time (the “Closing Net Working Capital”), (iii) a calculation of the Cash of the Company and the Subsidiaries as of as of immediately prior to the Closing (the “Closing Cash Balance”), (iv) a calculation of the Indebtedness of the Company and the Subsidiaries as of immediately prior to the Closing (but calculated to include any amounts that only become payable if the Closing occurs) (the “Closing Indebtedness Amount”), and (v) a calculation of the Seller Transaction Expenses as of immediately prior to the Closing (but calculated to include any amounts that only become payable if the Closing occurs) (the “Closing Seller Transaction Expenses”, and the items set forth in clauses (i) through (v), collectively, the “Closing Statement”). The Closing Statement shall be prepared on in accordance with the Accounting Principles and shall not include any changes in assets or liabilities as a basis consistent with GAAPresult of purchase accounting adjustments. For purposes After delivery of the Closing Adjustment Statement, Buyer shall (and shall cause the Company and the Final Closing Adjustment (as hereinafter defined)Subsidiaries to) permit Seller and its accountants reasonable access to the records, the amount of Accounts Receivable of Seller to be included work papers, and computations used by Buyer in the Closing Date Balance Sheet shall include only Accounts Receivable of Subscribers as reflected on Report 18A (Subscriber Accounts Receivable Aging By Account) preparation of the NRTC Central Billing System Reports less a reserve of six percent Closing Statement.
(6%c) for Accounts Receivable which are not collectible. In addition, the Closing Date Balance Sheet and the Final Closing Adjustment shall not include as a Current Asset any accounts receivable arising from Leased Subscriber Equipment. Purchaser may, by providing Seller with written notice at least five (5) days prior The post‑Closing adjustment to the Closing, elect to purchase all, or certain of, the DSS(TM) subscriber equipment owned by Seller (other than Leased Subscriber Equipment) on the Closing Date; provided, however, Purchaser shall not have the right to acquire any assets attributable to Seller's Electric Business. Any such equipment which is purchased by Purchaser shall be included as Inventory in the Closing Date Balance Sheet. Except Purchase Price as set forth in this Section 4.4(b)2.5 is not intended to permit the introduction of different accounting methods, no other assets policies, practices, procedures, conventions, categorizations, definitions, principles, judgments, assumptions, techniques or liabilities shall be included estimation methods with respect to financial statements, their classification or presentation in place of the Accounting Principles; it being the intent of the Parties that the Closing Date Balance Sheet. Seller shall make available Net Working Capital be calculated consistently with the Net Working Capital Target in order to Purchaser such documentation, back-up, invoices, and books and records allow a meaningful comparison of Seller as Purchaser may reasonably requestthe Closing Net Working Capital to the Net Working Capital Target.
(cd) If Seller disputes any amounts reflected on the Closing Statement as delivered by Buyer, Seller shall so notify Buyer in writing (a “Notice of Dispute”) not more than sixty (60) calendar days after the date Seller receives the Closing Statement, specifying in reasonable detail all points of disagreement (any such disagreement hereinafter, a “Disagreement”). If Seller fails to deliver a Notice of Dispute within such sixty-day period, Seller shall be deemed to have accepted the Closing Statement (and all amounts and calculations set forth thereon) and the Closing Statement as originally delivered by Buyer (and all such amounts and calculations) shall be final, binding, and non-appealable by the Parties. If a Notice of Dispute is timely delivered, Seller and Purchaser Buyer shall negotiate in good faith to reconcile resolve any discrepancies which may arise Disagreement (as evidenced by a written agreement between them). If the Disagreement is not resolved by Buyer and Seller in connection writing within thirty (30) calendar days after Buyer receives the Notice of Dispute, they shall refer the Disagreement to ▇▇▇▇▇▇▇ & Marsal, or, if ▇▇▇▇▇▇▇ & Marsal is unable or unwilling to serve, an independent nationally recognized accounting firm that is mutually agreed to by Buyer and Seller in writing (the “Accountant”) for resolution of such Disagreement in accordance with the determination terms of the Closing Date Balance Sheetthis Agreement. If Seller Buyer and Purchaser are unable to reconcile such discrepancies, Seller shall have instruct the Accountant that the determinations of such firm with respect to any Disagreement shall be rendered within fifteen (15) calendar days from presentment after the referral of the Closing Date Balance Sheet Disagreement or as soon thereafter as reasonably possible. The scope of the disputes to be resolved by Purchaser to notify Purchaser if Seller wishes to have Purchaser's determination examined. If Seller elects to have Purchaser's determination examined, it the Accountant shall be submitted limited to whether the determination unresolved items in Atlantadispute that were included in the Notice of Dispute were prepared in accordance with this Agreement, Georgiaincluding the Accounting Principles, by and the Certified Public Accounting firm of KMPG Peat Marwick (or any other independent Certified Public Accounting firm mutually acceptable engagement agreement with the Accountant shall instruct the Accountant to Seller determine, on such basis, whether and Purchaser), to what extent the cost of such examination to Closing Statement requires adjustment. The engagement agreement with the Accountant shall provide that the Accountant’s decision shall be paid fifty percent (50%) based solely on written submissions and presentations by Seller and fifty percent (50%) Buyer and their respective representatives and not by Purchaserindependent review. The engagement agreement with the Accountant shall provide that the Accountant shall address only those items in dispute and may not assign a value greater than the greatest value claimed for such item by either Party or smaller than the smallest value for such item claimed by either Party. The determination by Purchaser of the Accountant pursuant to this Section 2.5(c) shall be final and binding on the parties unless Seller elects to have an examination as provided hereinParties. The fees, costs, and expenses of the Accountant shall be allocated between Seller, on the one hand, and Buyer, on the other hand, in which case the results same proportion that the aggregate amount of the examination disputed items submitted to the Accountant that is unsuccessfully disputed by each such Party (as finally determined by the Accountant) bears to the total amount of disputed items so submitted; provided, that such fees, costs, and expenses shall not include, so long as a Party complies with the procedures of this Section 2.5, the other Party’s outside counsel or accounting fees. The Closing Balance Sheet, Closing Net Working Capital, Closing Cash Balance, and Closing Indebtedness Amount, each as set forth on the Closing Statement as finally determined in accordance with the terms of this Section 2.5(d), shall be made within thirty (30) days of such referral, and shall be final and binding on referred to as the parties (the "“Final Closing Adjustment")Balance Sheet,” “Final Net Working Capital,” the “Final Cash Balance”, the “Final Indebtedness Amount” and the “Final Seller Transaction Expense Amount”, respectively.
(de) To the extent the Final Closing Adjustment is less than the Closing Adjustment, Seller shall pay the difference in cash to Purchaser within five (5) days after the final determination. In the event the Final Closing Adjustment is greater than the Closing Adjustment, Purchaser shall pay such excess in cash to Seller within five (5) days after the final determination. If, following any payment pursuant to this Section 4.4(d), an error (in billing or reporting by NRTC or otherwise) is thereafter discovered which would have affected the Final Closing Adjustment, the party in whose favor the error was made shall immediately pay in cash the amount of such error to the other party.Amount
Appears in 1 contract
Adjustment to Purchase Price. (a) The Closing Payment shall be (i) increased by (A) the parties' good faith estimate of the Current Assets of Seller Seller, and (B) Five Hundred Dollars ($500) times the excess of (1) the number of new Subscribers in the Locations to the Total Choice Package (or its equivalent) on the Closing Date over (2) the number of Subscribers in the Locations to the Total Choice Package (or its equivalent) on January 9, 1998; and (ii) decreased by the parties' good faith estimate of the Current Liabilities of Seller as of the Closing Date (the "Closing Adjustment"), which adjustment shall be subject to final adjustment as provided for in paragraph (c) below.
(b) No later than sixty (60) days after the Closing Date, or within three (3) days after receipt of the necessary accounting data from the NRTC Central Billing System, whichever is later, Purchaser shall make prepare and deliver to Seller a balance sheet reflecting the Current Assets and Current Liabilities of Seller as of the Closing Date (the "Closing Date Balance Sheet"), prepared on a basis consistent with GAAP. For purposes of the Closing Adjustment and the Final Closing Adjustment (as hereinafter defined), the amount of Accounts Receivable of Seller to be included in the Closing Date Balance Sheet shall include only Accounts Receivable of Subscribers as reflected on Report 18A (Subscriber Accounts Receivable Aging By Account) of the NRTC Central Billing System Reports less a reserve of six percent (6%) for Accounts Receivable which are not collectibleless than sixty (60) days past due. In addition, the The Closing Date Balance Sheet and the Final Closing Adjustment shall not include as a Current Asset any accounts receivable arising from Leased Subscriber Equipment. Purchaser may, by providing Seller with written notice at least five (5) days prior to the Closing, elect to purchase all, or certain of, the DSS(TM) subscriber equipment owned by Seller (other than Leased Subscriber Equipment) on the Closing Date; provided, however, Purchaser shall not have the right to acquire any assets attributable to Seller's Electric Business. Any such equipment which is purchased by Purchaser shall be included as Inventory in the Closing Date Balance Sheet. Except as set forth in this Section 4.4(b4.3(b), no other assets or liabilities shall be included in the Closing Date Balance Sheet, including, Leased Subscriber Equipment or Inventory. Seller shall make available to Purchaser such documentation, back-up, invoices, and books and records of Seller as Purchaser may reasonably request.
(c) Seller and Purchaser shall negotiate in good faith to reconcile any discrepancies which may arise in connection with the determination of the Closing Date Balance Sheet. If Seller and Purchaser are unable to reconcile such discrepancies, Seller shall have fifteen (15) days from presentment of the Closing Date Balance Sheet by Purchaser to notify Purchaser if Seller wishes to have Purchaser's determination examined. If Seller elects to have Purchaser's determination examined, it shall be submitted to the determination in Atlanta, Georgia, by the Certified Public Accounting firm of KMPG KPMG Peat Marwick (or any other independent Certified Public Accounting firm mutually acceptable to Seller and Purchaser), the cost of such examination to be paid fifty percent (50%) by Seller and fifty percent (50%) by Purchaser. The determination by Purchaser shall be final and binding on the parties unless Seller elects to have an examination as provided herein, in which case the results of the examination shall be made within thirty (30) days of such referral, and shall be final and binding on the parties (the "Final Closing Adjustment").
(d) To the extent the Final Closing Adjustment is less than the Closing Adjustment, Seller shall pay the difference in cash to Purchaser within five (5) days after the final determination. In the event the Final Closing Adjustment is greater than the Closing Adjustment, Purchaser shall pay such excess in cash to Seller within five (5) days after the final determination. If, following any payment pursuant to this Section 4.4(d), an error (in billing or reporting by NRTC or otherwise) is thereafter discovered which would have affected the Final Closing Adjustment, the party in whose favor the error was made shall immediately pay in cash the amount of such error to the other party.examination
Appears in 1 contract
Adjustment to Purchase Price. (a) The Closing Payment Purchase Price shall be increased by or reduced as set forth in this Section 2.6. Any increase or decrease in the parties' good faith estimate Purchase Price pursuant to this Section 2.6 shall be referred to as a “Purchase Price Adjustment”.
(b) At least three days prior to the Closing Date, the Sellers shall prepare and deliver to Buyer (i) an estimated consolidated balance sheet of the Current Assets of Seller Company and decreased by the parties' good faith estimate of the Current Liabilities of Seller its Subsidiaries as of the Closing Date (the "“Estimated Closing Adjustment"Date Balance Sheet”), and (ii) a separate statement calculating the estimated Net Working Capital (subject to Section 2.6(g), the “Estimated Net Working Capital”) of the Company and its Subsidiaries based on the Estimated Closing Date Balance Sheet, and showing any calculations with respect to any proposed Purchase Price Adjustment (the “Estimated Purchase Price Adjustment Schedule”). The Sellers will permit, and will cause the Company and its Subsidiaries to permit, Buyer and its advisors and representatives reasonable access to the books, records and other documents pertaining to or used in connection with the preparation of the Estimated Closing Date Balance Sheet and the Estimated Purchase Price Adjustment Schedule. If the Estimated Net Working Capital is less than the Net Working Capital Target (the amount by which adjustment the Net Working Capital Target exceeds the Estimated Net Working Capital being referred to herein as the “Estimated Working Capital Deficit“), then the Purchase Price shall be subject decreased by an amount equal to final adjustment the Estimated Working Capital Deficit. If the Estimated Net Working Capital is greater than the Net Working Capital Target (the amount by which the Estimated Net Working Capital exceeds the Net Working Capital Target being referred to herein as provided for in paragraph (c) belowthe “Estimated Working Capital Surplus“), then the Purchase Price shall be increased by an amount equal to the Estimated Working Capital Surplus.
(bc) No later than sixty (60) 60 days after the Closing Date, or within three (3) days after receipt of the necessary accounting data from the NRTC Central Billing System, whichever is later, Purchaser Buyer shall make prepare and deliver to Seller each of the Sellers (i) a consolidated balance sheet reflecting of the Current Assets Company and Current Liabilities of Seller its Subsidiaries as of the Closing Date (the "“Closing Date Balance Sheet"”), prepared on and (ii) a basis consistent with GAAP. For purposes separate statement calculating the Net Working Capital of the Closing Adjustment Company and the Final Closing Adjustment (as hereinafter defined), the amount of Accounts Receivable of Seller to be included in its Subsidiaries based on the Closing Date Balance Sheet shall include only Accounts Receivable of Subscribers as reflected on Report 18A Sheet, and showing any calculations with respect to any proposed Purchase Price Adjustment (Subscriber Accounts Receivable Aging By Account) the “Purchase Price Adjustment Schedule”). Buyer will permit, and will cause the Company and its Subsidiaries to permit, the Sellers and their advisors and representatives complete and timely access to the books, records, properties, premises, work papers, personnel and other information of the NRTC Central Billing System Reports less a reserve of six percent (6%) for Accounts Receivable which are not collectible. In addition, Company and its Subsidiaries to permit the Sellers and their advisors to review the Closing Date Balance Sheet and the Final Closing Purchase Price Adjustment shall not include as a Current Asset Schedule or to address any accounts receivable arising from Leased Subscriber Equipment. Purchaser may, by providing Seller with written notice at least five (5) days prior to the Closing, elect to purchase all, or certain of, the DSS(TM) subscriber equipment owned by Seller (other than Leased Subscriber Equipment) on the Closing Date; provided, however, Purchaser shall not have the right to acquire any assets attributable to Seller's Electric Business. Any such equipment which is purchased by Purchaser shall be included as Inventory in the Closing Date Balance Sheet. Except as set forth dispute described in this Section 4.4(b), no other assets or liabilities shall be included in the Closing Date Balance Sheet. Seller shall make available to Purchaser such documentation, back-up, invoices, and books and records of Seller as Purchaser may reasonably request2.6.
(cd) Seller and Purchaser shall negotiate in good faith to reconcile any discrepancies which may arise in connection with the determination of the Closing Date Balance Sheet. If Seller and Purchaser are unable to reconcile such discrepanciesThe Sellers shall, Seller shall have fifteen (15) within 30 days from presentment following their receipt of the Closing Date Balance Sheet and the Purchase Price Adjustment Schedule, accept or reject the Purchase Price Adjustment submitted by Purchaser Buyer. If any of the Sellers disagree with the Closing Date Balance Sheet, the Purchase Price Adjustment Schedule or any calculation thereon, they shall give written notice to Buyer of such disagreement and any reason therefor within such 30-day period. Should the Sellers fail to notify Purchaser if Seller wishes Buyer of a disagreement within such 30-day period, the Sellers shall be deemed to have Purchaser's determination examinedagree with Buyer’s calculation. In the event of such a dispute, the Sellers and Buyer shall attempt to reconcile their differences, and any resolution by them as to any disputed amounts shall be final, binding and conclusive on the Parties. If Seller elects the Sellers and Buyer are unable to reach a resolution with such effect within 30 days after the receipt by Buyer of the Sellers’ written notice of dispute, the Parties shall submit the items remaining in dispute to the extent they are accounting matters for resolution to the New York, New York office of KPMG LLP (the “Independent Accountant”). The Independent Accountant shall act as an arbitrator and shall issue its report as to all matters in dispute (and only such matters) and the determination of the Purchase Price Adjustment within 30 days after such dispute is referred to the Independent Accountant. The Independent Accountant shall not have Purchaser's determination examinedthe power to modify or amend any term or provision of this Agreement. Buyer on the one hand, it and the Sellers on the other hand, shall bear all costs and expenses incurred by them in connection with such arbitration, except that the fees and expenses of the Independent Accountant hereunder shall be borne by Buyer and the Sellers in the same proportion that the aggregate amount of such remaining disputed items so submitted to the determination in Atlanta, Georgia, Independent Accountant that is unsuccessfully disputed by each such party (as finally determined by the Certified Public Accounting firm of KMPG Peat Marwick (or any other independent Certified Public Accounting firm mutually acceptable Independent Accountant) bears to Seller and Purchaser), the cost total amount of such examination to remaining disputed items so submitted. This provision for arbitration shall be paid fifty percent (50%) specifically enforceable by Seller the Parties and fifty percent (50%) by Purchaser. The determination by Purchaser the decision of the Independent Accountant in accordance with the provisions hereof shall be final and binding on with respect to the parties unless Seller elects to have an examination as provided herein, in which case the results of the examination matters so arbitrated and there shall be made within thirty (30) days no right of such referral, and shall be final and binding on the parties (the "Final Closing Adjustment")appeal therefrom.
(de) To The Purchase Price Adjustment Schedule shall be deemed final (the extent “Final Purchase Price Adjustment Schedule”) for the purposes of this Section 2.6 upon the earliest of (i) the failure of the Sellers to notify Buyer of a dispute within 30 days of Buyer’s delivery of the Closing Balance Sheet and the Purchase Price Adjustment Schedule to the Sellers, (ii) the resolution of all disputes, pursuant to Section 2.6(d), by the Sellers and Buyer or (iii) the resolution of all disputes, pursuant to Section 2.6(d), by the Independent Accountant.
(f) Upon finalization of the Purchase Price Adjustment Schedule pursuant to Section 2.6(e), the following adjustments will be made based on the Net Working Capital as reflected in the Final Closing Purchase Price Adjustment Schedule, subject to Section 2.6(g), the “Final Net Working Capital”):
(i) If the Estimated Net Working Capital minus the Final Net Working Capital is less than a negative number (such difference being the “Net Working Capital Surplus”), then the Purchase Price shall be adjusted upward from the Purchase Price as calculated at the Closing Adjustmentin an amount equal to the absolute value of the Net Working Capital Surplus and Buyer shall pay or caused to be paid, within three Business Days of the finalization of the Purchase Price Adjustment Schedule pursuant to Section 2.6(e), to each Seller, such Seller’s Pro Rata Percentage of the absolute value of the Net Working Capital Surplus by wire transfer in immediately available funds to one or more accounts designated by the Sellers; and
(ii) If the Estimated Net Working Capital minus the Final Net Working Capital is a positive number (such difference being the “Net Working Capital Deficit”), then the Purchase Price shall be adjusted downward from the Purchase Price as calculated at the Closing in an amount equal to the absolute value of the Net Working Capital Deficit and each Seller shall pay or caused to be paid, within three Business Days of the difference finalization of the Purchase Price Adjustment Schedule pursuant to Section 2.6(e), to Buyer, such Seller’s Pro Rata Percentage of the Net Working Capital Deficit by wire transfer in cash immediately available funds to Purchaser within five the account reasonably designated by Buyer.
(5g) days after Notwithstanding anything herein to the final determination. In contrary, the event Parties agree that (i) if the Final Closing Adjustment Estimated Net Working Capital is greater than or equal to $43,400,000 but less than or equal to $44,400,000, then the Closing AdjustmentEstimated Net Working Capital shall be deemed to equal the Net Working Capital Target; and (ii) if the Final Net Working Capital is greater than or equal to $43,400,000 but less than or equal to $44,400,000, Purchaser then the Final Net Working Capital shall pay such excess in cash be deemed to Seller within five (5) days equal the Net Working Capital Target. The Net Working Capital Target includes a $2,000,000 reserve to allow for the increased cost being incurred as a result of moving the No. 2 Dublin Power Boiler and the Dublin Paper Mill Machine #2 shutdown to the April period after the final determination. If, following any payment pursuant to this Section 4.4(d), an error (in billing or reporting by NRTC or otherwise) is thereafter discovered which would have affected the Final Closing Adjustment, the party in whose favor the error was made shall immediately pay in cash the amount of such error to the other partyClosing.
Appears in 1 contract
Adjustment to Purchase Price. (a) The Closing Payment shall be increased by the parties' good faith estimate of the Current Assets of Seller and decreased by the parties' good faith estimate of the Current Liabilities of Seller as of the Closing Date (the "Closing Adjustment"), which adjustment shall be subject to final adjustment as provided for in paragraph (c) below.
(b) No later than sixty thirty (6030) days after the Closing Date, or within three (3) days after receipt of the necessary accounting data from the NRTC Central Billing System, whichever is later, Purchaser shall make and deliver to Seller a balance sheet reflecting the Current Assets and Current Liabilities of Seller as of the Closing Date (the "Closing Date Balance Sheet"), prepared on a basis consistent with GAAPthis Agreement. For purposes of the Closing Adjustment and the Final Closing Adjustment (as hereinafter defined), the amount of Accounts Receivable of Seller to be included in the Closing Date Balance Sheet shall include only Accounts Receivable of Subscribers as reflected on Report 18A (Subscriber Accounts Receivable Aging By by Account) of the NRTC Central Billing System Reports less a reserve of six percent (6%) for Accounts Receivable which are not collectiblecollectible as determined in accordance with GAAP ("Bad Debt Reserve"). In addition, the Closing Date Balance Sheet and the Final Closing Adjustment shall not include as a Current Asset or Current Liability the net book value or liability associated with any DSS(TM) equipment leased or rented by Seller to any of its Customers and any accounts receivable arising from Leased Subscriber Equipmentsuch leases or rental agreements, other than accounts receivable arising from Programming. Purchaser may, by providing Seller with written notice at least five fifteen (515) days prior to the Closing, elect to purchase all, or certain of, the DSS(TM) subscriber Subscriber equipment owned by Seller (other than Leased Subscriber Equipmentrental or leased DSS(TM) subscriber equipment) on the Closing Date; provided, however, Purchaser shall not have the right to acquire any assets attributable to Seller's Electric Business. Any such equipment which is purchased by Purchaser shall be included as Inventory in the Closing Date Balance Sheet. Seller shall make available to Purchaser its Records so Purchaser may verify the actual cost of the Inventory. Except as set forth in this Section 4.4(b), no other assets or liabilities shall be included in the Closing Date Balance Sheet. Seller shall make available to Purchaser such documentation, back-up, invoices, and books and records of Seller as Purchaser may reasonably request.
(c) Seller and Purchaser shall negotiate in good faith to reconcile any discrepancies which may arise in connection with the determination of the Closing Date Balance Sheet. If Seller and Purchaser are unable to reconcile such discrepancies, Seller Purchaser shall have fifteen (15) days from presentment of the Closing Date Balance Sheet by Purchaser Seller to notify Seller if Purchaser if Seller wishes to have PurchaserSeller's determination examined. If Seller Purchaser elects to have PurchaserSeller's determination examined, it shall be submitted to the determination in AtlantaKansas City, GeorgiaMissouri, by the Certified Public Accounting firm of KMPG Peat Marwick (or any other independent Certified Public Accounting firm mutually acceptable to Seller and Purchaser), the cost of such examination to be paid fifty percent (50%) by Seller and fifty percent (50%) by Purchaser; provided the fees of such firm in excess of Five Thousand Dollars ($5,000) shall be paid by Purchaser. The determination by Purchaser shall be final and binding on the parties unless Seller elects to have an examination as provided herein, in which case the results of the examination shall be made within thirty (30) days of such referral, and shall be final and binding on the parties (the "Final Closing Adjustment").
(d) To the extent the Final Closing Adjustment is less than the Closing Adjustment, Seller shall pay the difference in cash to Purchaser within five (5) days after the final determination. In the event the Final Closing Adjustment is greater than the Closing Adjustment, Purchaser shall pay such excess in cash to Seller within five (5) days after the final determination. If, following any payment pursuant to this Section 4.4(d), an error (in billing or reporting by NRTC or otherwise) is thereafter discovered which would have affected the Final Closing Adjustment, the party in whose favor the error was made shall immediately pay in cash the amount of such error to the other party.
Appears in 1 contract
Sources: Asset Purchase Agreement (Digital Television Services of Kansas LLC)
Adjustment to Purchase Price. (a) The Closing Payment shall be increased by the parties' good faith estimate of the Current Assets of Seller and decreased by the parties' good faith estimate of the Current Liabilities of Seller as of the Closing Date (the "Closing Adjustment"), which adjustment shall be subject to final adjustment as provided for in paragraph (c) below.
(b) No later than sixty thirty (6030) days after the Closing Date, or within three (3) days after receipt of the necessary accounting data from the NRTC Central Billing System, whichever is later, Purchaser Seller shall make and deliver to Seller Purchaser a balance sheet reflecting the Current Assets and Current Liabilities of Seller as of the Closing Date (the "Closing Date Balance Sheet"), prepared on a basis consistent with GAAP. For purposes of the Closing Adjustment and the Final Closing Adjustment (as hereinafter defined)Adjustment, the amount of Accounts Receivable of Seller to be included in the Closing Date Balance Sheet shall include only Accounts Receivable of Subscribers as reflected on Report 18A (Subscriber Accounts Receivable Aging By by Account) of the NRTC Central Billing System Reports less Three Thousand Dollars ($3,000), as a reserve of six percent (6%) for Accounts Receivable which are not collectiblecollectible as determined in accordance with GAAP. In addition, the Closing Date Balance Sheet and the Final Closing Adjustment shall not include as a Current Asset any accounts receivable arising from Leased Subscriber Equipment. Purchaser may, by providing Seller with written notice at least five (5) days prior to the Closing, elect to purchase all, or certain of, the DSS(TM) subscriber equipment owned leased by Seller (other than Leased Subscriber Equipment) on the Closing Date; provided, however, Purchaser shall not have the right to acquire any assets attributable to Seller's Electric Business. Any such equipment which is purchased by Purchaser shall be included as Inventory in the Closing Date Balance Sheetof its Customers. Except as set forth in this Section 4.4(b), no other assets or liabilities shall be included in the Closing Date Balance Sheet. Seller shall make available to Purchaser such documentation, back-up, invoices, and books and records of Seller as Purchaser may reasonably request.
(c) Seller and Purchaser shall negotiate in good faith to reconcile any discrepancies which may arise in connection with the determination of the Closing Date Balance Sheet. If Seller and Purchaser are unable to reconcile such discrepanciesdetermination, Seller Purchaser shall have fifteen (15) days from presentment of the Closing Date Balance Sheet by Purchaser Seller to notify Seller if Purchaser if Seller wishes to have PurchaserSeller's determination examined. If Seller Purchaser elects to have PurchaserSeller's determination examined, it shall be submitted to the determination in AtlantaCharlotte, GeorgiaNorth Carolina, by the Certified Public Accounting firm of KMPG Peat Marwick Arth▇▇ ▇▇▇e▇▇▇▇ & ▇o. (or any other independent Certified Public Accounting firm mutually acceptable to Seller and Purchaser), the cost of such examination to be paid fifty percent (50%) by Seller and fifty percent (50%) by Purchaser. The determination by Purchaser Seller shall be final and binding on the parties unless Seller Purchaser elects to have an examination as provided herein, in which case the results of the examination shall be made within thirty (30) days of such referral, and shall be final and binding on the parties (the "Final Closing Adjustment").
(d) To the extent the Final Closing Adjustment is less than the Closing Adjustment, Seller shall pay the difference in cash to Purchaser within five (5) days after the final determination. In the event the Final Closing Adjustment is greater than the Closing Adjustment, Purchaser shall pay such excess in cash to Seller within five (5) days after the final determination. If, following any payment pursuant to this Section 4.4(d), an error (in billing or reporting by NRTC or otherwise) is thereafter discovered which would have affected the Final Closing Adjustment, the party in whose favor the error was made shall immediately pay in cash the amount of such error to the other party.
Appears in 1 contract
Sources: Asset Purchase Agreement (Digital Television Services of Kansas LLC)
Adjustment to Purchase Price. (ai) The Closing Payment shall be increased by the parties' good faith estimate of the Current Assets of Seller and decreased by the parties' good faith estimate of the Current Liabilities of Seller as of the Closing Date Within fifteen (the "Closing Adjustment"), which adjustment shall be subject to final adjustment as provided for in paragraph (c) below.
(b) No later than sixty (6015) days after the Closing Date, or within three (3) days after receipt of the necessary accounting data from the NRTC Central Billing System, whichever is later, Purchaser shall make and deliver to Seller a balance sheet reflecting the Current Assets and Current Liabilities of Seller as of the Closing Date (the "Closing Date Balance Sheet"), prepared on a basis consistent with GAAP. For purposes of the Closing Adjustment and the Final Closing Adjustment (as hereinafter defined), the amount of Accounts Receivable of Seller to be included in the Closing Date Balance Sheet shall include only Accounts Receivable of Subscribers as reflected on Report 18A (Subscriber Accounts Receivable Aging By Account) of the NRTC Central Billing System Reports less a reserve of six percent (6%) for Accounts Receivable which are not collectible. In addition, the Closing Date Balance Sheet and the Final Closing Adjustment shall not include as a Current Asset any accounts receivable arising from Leased Subscriber Equipment. Purchaser may, by providing Seller with written notice at least five (5) days prior to the Closing, elect Assignee shall notify Assignors of any objections Assignee may have to purchase all, or certain of, the DSS(TM) subscriber equipment owned by Seller (other than Leased Subscriber Equipment) on the Closing Date; provided, however, Purchaser shall not have the right to acquire any assets attributable to Seller's Electric Business. Any such equipment which is purchased by Purchaser shall be included as Inventory in the Closing Date Balance Sheet. Except as set forth in this Section 4.4(b), no other assets or liabilities shall be included in the Closing Date Balance Sheet. Seller shall make available to Purchaser such documentation, back-up, invoices, and books and records of Seller as Purchaser may reasonably request.
(c) Seller and Purchaser shall negotiate in good faith to reconcile any discrepancies which may arise in connection with the determination of the Purchase Price or the Allocation Adjustment set forth in the Closing Date Balance SheetStatement (the "Objection Notice"). If Seller Assignee fails to deliver an Objection Notice within such fifteen (15) day period or if Assignee delivers an Objection Notice stating that it has no objections, Assignee shall be deemed to have approved and Purchaser are unable accepted Assignors' calculation of the Purchase Price and the Allocation Adjustment for purposes of the adjustment to reconcile be made pursuant to subsection 2.2(b)(ii). If Assignee notifies Assignors of any such discrepanciesobjections within such fifteen (15) day period, Seller Assignors and Assignee shall have attempt to resolve such objections in good faith for a period of fifteen (15) days from presentment the date of the Closing Date Balance Sheet by Purchaser to notify Purchaser if Seller wishes to have Purchaser's determination examinedsuch notice of objections. If Seller elects any objections of Assignee cannot be resolved by Assignee and Assignors within such fifteen (15) day period, such dispute shall immediately be referred to have Purchaser's determination examined, it shall be submitted an independent certified public accounting firm reasonably agreed to the determination in Atlanta, Georgia, by the Certified Public Accounting firm of KMPG Peat Marwick (or any other independent Certified Public Accounting firm mutually acceptable to Seller Assignee and Purchaser), the cost of such examination to be paid fifty percent (50%) by Seller and fifty percent (50%) by Purchaser. The determination by Purchaser shall be final and binding on the parties unless Seller elects to have an examination as provided herein, in which case the results of the examination shall be made within thirty (30) days of such referral, and shall be final and binding on the parties (the "Final Closing Adjustment").
(d) To the extent the Final Closing Adjustment is less than the Closing Adjustment, Seller shall pay the difference in cash to Purchaser Assignors within five (5) days after the final determinationend of such fifteen (15) day period. In The determination of such firm with respect to such dispute, which shall occur on or prior to ninety (30) days after such referral, shall be conclusive and binding on Assignee and Assignors. Assignee and Assignors shall each pay one-half of the event fees of such accounting firm.
(A) If the Final Closing Adjustment is greater than Purchase Price as finally determined pursuant to Section 2.2(b)(i) exceeds the Purchase Price as set forth in the Closing AdjustmentStatement, Purchaser Assignee shall pay Assignors an aggregate amount equal to such excess in cash to Seller within five (5) business days after of the final determination. If, following any payment determination of the Purchase Price pursuant to this Section 4.4(d2.2(b)(i) by wire transfer of immediately available funds to the account of Assignee notified by Assignee to Assignors.
(B) Notwithstanding any of Assignee's rights pursuant to Section 2.1(g) hereof, if the Purchase Price as set forth in the Closing Statement exceeds the Purchase Price as finally determined pursuant to Section 2.2(b)(i), Assignors, jointly and severally, shall pay Assignee an error aggregate amount equal to such excess within five (in billing or reporting 5) business days of the final determination of the Purchase Price pursuant to Section 2.2(b)(i) by NRTC or otherwise) is thereafter discovered which would have affected the Final Closing Adjustment, the party in whose favor the error was made shall wire transfer of immediately pay in cash the amount of such error available funds to the other partyaccount of Assignors notified by Assignors to Assignee.
Appears in 1 contract
Adjustment to Purchase Price. (a) On the Closing Date, Seller shall deliver to Buyer the Seller Balance Sheet. Following the Closing Date, and in any event not later than fifteen (15) days thereafter, Buyer shall deliver to Seller the Buyer Balance Sheet. The Closing Payment Buyer Balance Sheet shall attach Buyer's calculation of the Purchase Price Adjustment in accordance with the provisions of this Section 2.5. Seller shall be increased entitled to review all work papers and other supporting documentation used by Buyer in or relevant to the parties' good faith estimate creation of the Current Assets of Seller and decreased by the parties' good faith estimate of the Current Liabilities of Seller as of the Closing Date (the "Closing Adjustment"), which adjustment shall be subject to final adjustment as provided for in paragraph (c) belowBuyer Balance Sheet.
(b) No later than sixty The Buyer Balance Sheet shall become the Effective Balance Sheet for purposes of calculating the Purchase Price Adjustment under this Section 2.6 fifteen (6015) days after the Closing Date, or within three (3) days after receipt of the necessary accounting data from the NRTC Central Billing System, whichever is later, Purchaser shall make and deliver delivery thereof to Seller a balance sheet reflecting the Current Assets and Current Liabilities of unless Seller as of the Closing Date within such time period delivers written notice to Buyer (the "Closing Date Objection Notice") of its ---------------- disagreement as to the value of any item included in the Seller Balance Sheet or in Buyer's calculation of the Purchase Price Adjustment. Any Objection Notice shall specify in reasonable detail the nature of such disagreement and the basis and supporting evidence for Seller's position with respect to the disputed items. Seller and Buyer shall attempt in good faith to resolve any disagreement for a period of 30 days following the date of the Notice and develop an Effective Balance Sheet. If they are unable to do so within such period, they shall submit the disputed items to a nationally-recognized accounting firm not affiliated with either Buyer or Seller (the "Arbitrator"), prepared on a basis consistent whose decision with GAAP---------- respect to the matters disputed in the Objection Notice shall be final and binding. For purposes The Arbitrator shall render its decision with respect to such matters within 20 days after such matters are submitted to the Arbitrator and deliver the Effective Balance Sheet to Buyer and Seller at such time. Seller and Buyer shall each provide promptly all information and documents within their respective possession that the Arbitrator, in its sole discretion, deems necessary in order to make its decision with respect to the disputed matters. The fees and expenses of the Closing Adjustment and the Final Closing Adjustment (as hereinafter defined), the amount of Accounts Receivable of Seller to Arbitrator shall be included in the Closing Date Balance Sheet shall include only Accounts Receivable of Subscribers as reflected on Report 18A (Subscriber Accounts Receivable Aging By Account) of the NRTC Central Billing System Reports less a reserve of six percent (6%) for Accounts Receivable which are not collectible. In addition, the Closing Date Balance Sheet and the Final Closing Adjustment shall not include as a Current Asset any accounts receivable arising from Leased Subscriber Equipment. Purchaser may, by providing Seller with written notice at least five (5) days prior to the Closing, elect to purchase all, or certain of, the DSS(TM) subscriber equipment owned borne equally by Seller (other than Leased Subscriber Equipment) on the Closing Date; provided, however, Purchaser shall not have the right to acquire any assets attributable to Seller's Electric Business. Any such equipment which is purchased by Purchaser shall be included as Inventory in the Closing Date Balance Sheet. Except as set forth in this Section 4.4(b), no other assets or liabilities shall be included in the Closing Date Balance Sheet. Seller shall make available to Purchaser such documentation, back-up, invoices, and books and records of Seller as Purchaser may reasonably requestBuyer.
(c) Seller and Purchaser shall negotiate in good faith to reconcile any discrepancies which may arise in connection with the determination of the Closing Date Balance Sheet. If Seller and Purchaser are unable to reconcile such discrepancies, Seller shall have fifteen (15) days from presentment of the Closing Date Balance Sheet by Purchaser to notify Purchaser if Seller wishes to have Purchaser's determination examined. If Seller elects to have Purchaser's determination examined, it shall be submitted to the determination in Atlanta, Georgia, by the Certified Public Accounting firm of KMPG Peat Marwick (or any other independent Certified Public Accounting firm mutually acceptable to Seller and Purchaser), the cost of such examination to be paid fifty percent (50%) by Seller and fifty percent (50%) by Purchaser. The determination by Purchaser shall be final and binding on the parties unless Seller elects to have an examination as provided herein, in which case the results of the examination shall be made within thirty (30) days of such referral, and shall be final and binding on the parties (the "Final Closing Adjustment").
(d) To the extent the Final Closing Adjustment is less than the Closing Adjustment, Seller shall pay the difference in cash to Purchaser within Within five (5) business days after the final determination. In the event the Final Closing Adjustment Effective Balance Sheet is greater than the Closing Adjustment, Purchaser shall pay such excess in cash to Seller within five (5) days after the final determination. If, following any payment pursuant to this Section 4.4(d), an error (in billing or reporting by NRTC or otherwise) is thereafter discovered which would have affected the Final Closing Adjustmentfinally determined, the party in whose favor the error was made Purchase Price Adjustment shall immediately pay in cash the amount of such error be paid by Buyer or Seller, as appropriate, to the other party or an account or accounts designated by such party, in immediately available funds. The Purchase Price Adjustment, if any, shall be paid into or out of Escrow Cash by Buyer or Seller, as applicable, in accordance with the provisions of the Escrow Agreement.
Appears in 1 contract
Adjustment to Purchase Price. (a) The Closing Payment Purchase Price is subject to adjustment if the Inventory at closing differs from that shown on Schedule 1.1 as the Inventory as of May 31, 2010, except no adjustment shall be increased by made with respect to software licenses. The adjustment shall be dollar for dollar for any changes in the parties' good faith estimate of Inventory at Closing from that shown on Schedule 1.1.
(b) Seller shall prepare an inventory schedule (the Current Assets of Seller and decreased by the parties' good faith estimate of the Current Liabilities of Seller "Inventory Schedule") as of the Closing Date on the same basis and applying the same accounting principles, policies and practices set forth used in preparation of the May 31, 2010 balance sheet of Seller. Seller shall delivery the Inventory Schedule to Purchaser within thirty (30) days after the "Closing Adjustment"), which adjustment Date. Purchaser shall be subject permitted to final have representatives present for any physical inventory count and Seller will coordinate with Purchaser in the preparation of the Inventory Schedule. If Purchaser does not object to the Inventory Schedule delivered by Seller, then the inventory amount as reflected on the Inventory Schedule will be used to determine any adjustment to the base amount of the Purchase Price as provided for set forth in paragraph subsection (a) above. Any adjustment amount shall be paid by the Purchaser or Seller, as applicable, within fifteen (15) days of Seller's delivery of the Inventory Schedule, unless Purchaser provides notice of objection to the Inventory Schedule in accordance with subsection (c) below.
(bc) No later than If, within fifteen (15) days of receipt of the Inventory Schedule, Purchaser objects to the inventory amount as reflected on the Inventory Schedule, and if Seller and Purchaser then fail to resolve the issues outstanding with respect to the Inventory Schedule within fifteen (15) days of Purchaser's notice of objection, Seller and Purchaser shall submit the issues remaining in dispute to ▇▇▇▇▇▇, ▇▇▇▇▇▇ & Marshal, independent public accountants (the "Independent Accountants") for resolution applying the principles, policies and practices referred to in Section 3.2(b). If issues are submitted to the Independent Accountants for resolution, (i) Seller and Purchaser shall furnish or cause to be furnished to the Independent Accountants such work papers and other documents and information relating to the disputed issues as the Independent Accountants may request and are available to that party or its agents and shall be afforded the opportunity to present to the Independent Accountants any material relating to the disputed issues and to discuss the issues with the Independent Accountants; (ii) the determination by the Independent Accountants, as set forth in a notice to be delivered to both Seller and Purchaser within sixty (60) days after the Closing Date, or within three (3) days after receipt of the necessary accounting data from submission to the NRTC Central Billing System, whichever is later, Purchaser shall make and deliver to Seller a balance sheet reflecting the Current Assets and Current Liabilities of Seller as Independent Accountants of the Closing Date (issues remaining in dispute, shall be final, binding and conclusive on the "Closing Date Balance Sheet"), prepared on a basis consistent with GAAP. For purposes of parties and shall be used in finally determining the Closing Adjustment and the Final Closing Adjustment (as hereinafter defined), the amount of Accounts Receivable of Seller to be included in the Closing Date Balance Sheet shall include only Accounts Receivable of Subscribers as reflected on Report 18A (Subscriber Accounts Receivable Aging By Account) of the NRTC Central Billing System Reports less a reserve of six percent (6%) for Accounts Receivable which are not collectible. In addition, the Closing Date Balance Sheet and the Final Closing Adjustment shall not include as a Current Asset any accounts receivable arising from Leased Subscriber Equipment. Purchaser may, by providing Seller with written notice at least five (5) days prior adjustment to the Closing, elect to purchase all, or certain of, the DSS(TM) subscriber equipment owned by Seller (other than Leased Subscriber Equipment) on the Closing Date; provided, however, Purchaser shall not have the right to acquire any assets attributable to Seller's Electric Business. Any such equipment which is purchased by Purchaser shall be included as Inventory in the Closing Date Balance Sheet. Except Base Amount as set forth in this Section 4.4(b), no other assets or liabilities shall be included in the Closing Date Balance Sheet. Seller shall make available to Purchaser such documentation, back-up, invoices, subsection (a) above; and books and records of Seller as Purchaser may reasonably request.
(ciii) Seller and Purchaser shall negotiate in good faith to reconcile any discrepancies which may arise in connection with the determination of the Closing Date Balance Sheet. If Seller and Purchaser are unable to reconcile such discrepancies, Seller shall have fifteen (15) days from presentment of the Closing Date Balance Sheet by Purchaser to notify Purchaser if Seller wishes to have Purchaser's determination examined. If Seller elects to have Purchaser's determination examined, it shall be submitted to the determination in Atlanta, Georgia, by the Certified Public Accounting firm of KMPG Peat Marwick (or any other independent Certified Public Accounting firm mutually acceptable to Seller and Purchaser), the cost of such examination to be paid Buyer will each bear fifty percent (50%) by Seller of the fees and fifty percent (50%) by Purchasercosts of the Independent Accountants for such determination. The determination by Purchaser Any adjustment amount shall be final and binding on paid by the parties unless Seller elects to have an examination Purchaser or Seller, as provided hereinapplicable, in which case the results of the examination shall be made within thirty ten (3010) days of such referral, and shall be final and binding on the parties (the "Final Closing Adjustment").
(d) To the extent the Final Closing Adjustment is less than the Closing Adjustment, Seller shall pay the difference in cash to Purchaser within five (5) days after the final determination. In the event the Final Closing Adjustment is greater than the Closing Adjustment, Purchaser shall pay such excess in cash to Seller within five (5) days after the final determination. If, following any payment pursuant to this Section 4.4(d), an error (in billing or reporting by NRTC or otherwise) is thereafter discovered which would have affected the Final Closing Adjustment, the party in whose favor the error was made shall immediately pay in cash the amount receipt of such error to determination from the other partyIndependent Accountants.
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Adjustment to Purchase Price. (a) The Closing Payment Within 30 days after the Closing, Buyer shall be increased by prepare and deliver to the partiesShareholders' good faith estimate Representative a statement (the "Net Worth Statement"), based on the Company's balance sheet as of the Current Assets of Seller and decreased by Closing Date, setting forth the parties' good faith estimate amount of the Current Liabilities net worth exclusive of Seller Indebtedness and the Special Bonuses as of the close of business on the Closing Date (the "Closing AdjustmentDebt-Free Net Worth"), which adjustment . The Net Worth Statement shall be subject to final adjustment as provided for prepared in paragraph (c) belowaccordance with generally accepted accounting principles and in a manner consistent with the 1999 Balance Sheet.
(b) No later than sixty (60) Within 30 days after following receipt by the Closing Date, or within three (3) days after receipt Shareholders' Representative of the necessary accounting data from Net Worth Statement, the NRTC Central Billing System, whichever is later, Purchaser Shareholders' Representative shall make and deliver notify Buyer of any dispute he has with respect to Seller a balance sheet reflecting the Current Assets and Current Liabilities of Seller as preparation or content of the Closing Date (Net Worth Statement. In the "Closing Date Balance Sheet"), prepared on a basis consistent with GAAP. For purposes event of the Closing Adjustment and the Final Closing Adjustment (as hereinafter defined)such notification of dispute, the amount of Accounts Receivable of Seller to be included in the Closing Date Balance Sheet shall include only Accounts Receivable of Subscribers as reflected on Report 18A (Subscriber Accounts Receivable Aging By Account) of the NRTC Central Billing System Reports less a reserve of six percent (6%) for Accounts Receivable which are not collectible. In addition, the Closing Date Balance Sheet Shareholders' Representative and the Final Closing Adjustment shall not include as a Current Asset any accounts receivable arising from Leased Subscriber Equipment. Purchaser may, by providing Seller with written notice at least five (5) days prior to the Closing, elect to purchase all, or certain of, the DSS(TM) subscriber equipment owned by Seller (other than Leased Subscriber Equipment) on the Closing Date; provided, however, Purchaser shall not have the right to acquire any assets attributable to Seller's Electric Business. Any such equipment which is purchased by Purchaser shall be included as Inventory in the Closing Date Balance Sheet. Except as set forth in this Section 4.4(b), no other assets or liabilities shall be included in the Closing Date Balance Sheet. Seller shall make available to Purchaser such documentation, back-up, invoices, and books and records of Seller as Purchaser may reasonably request.
(c) Seller and Purchaser Buyer shall negotiate in good faith to reconcile any discrepancies which may arise in connection with the determination of the Closing Date Balance Sheetresolve such dispute. If Seller Buyer and Purchaser the Shareholders' Representative are unable to reconcile resolve such discrepanciesdispute within 30 calendar days after the commencement of such dispute, Seller shall have fifteen PricewaterhouseCoopers (15the "Accounting Firm") days from presentment of the Closing Date Balance Sheet by Purchaser to notify Purchaser if Seller wishes to have Purchaser's determination examined. If Seller elects to have Purchaser's determination examined, it shall be submitted retained to the determination in Atlanta, Georgia, resolve such dispute. All determinations made by the Certified Public Accounting firm of KMPG Peat Marwick (or any other independent Certified Public Accounting firm mutually acceptable to Seller and Purchaser), the cost of such examination to be paid fifty percent (50%) by Seller and fifty percent (50%) by Purchaser. The determination by Purchaser Firm shall be final final, conclusive and binding on the parties unless Seller elects to have an examination Parties. Buyer and the Shareholders shall share equally the fees and expenses of the Accounting Firm.
(c) If, upon the completion of the Net Worth Statement and the final resolution of any disputes pertaining thereto as provided hereinin Section 1.3(b), in which case Debt-Free Net Worth is less than $14,572,623 (the results Company's Debt-Free Net Worth on June 30, 2000), the Shareholders shall refund to Buyer, payable out of the examination shall be made within thirty (30) days of Escrow Amount, an amount in cash equal to such referral, and shall be final and binding on the parties (the "Final Closing Adjustment")deficiency.
(d) To If, upon the extent completion of the Final Closing Adjustment is less than the Closing Adjustment, Seller shall pay the difference in cash to Purchaser within five (5) days after Net Worth Statement and the final determination. In the event the Final Closing Adjustment resolution of any disputes pertaining thereto as provided in Section 1.3(b), Debt-Free Net Worth is greater than the Closing Adjustment$14,572,623, Purchaser Buyer shall pay such excess to the Shareholders' Representative an amount in cash equal to Seller within five such amount.
(5e) days after If, upon the completion of the Net Worth Statement and the final determination. Ifresolution of any disputes pertaining thereto as provided in Section 1.3(b), following Debt-Free Net Worth is equal to $14,572,623, none of the Parties shall owe any payment amount to any of the other Parties under this Section 1.3.
(f) Any payments owing pursuant to this Section 4.4(d)1.3 shall include interest on such amount from the Closing Date until the date of payment at the Interest Rate and shall be made by bank wire transfer, an error federal funds check, or otherwise in immediately available funds, on the earliest of (i) with respect to any and all items not in billing or reporting by NRTC or otherwise) is thereafter discovered which would have affected the Final Closing Adjustmentdispute, the party in whose favor third business day following the error was made shall immediately pay in cash the amount determination of such error to amounts, or (ii) if there shall have been a disagreement, the other partythird business day following the resolution by the Shareholders and the Buyer of such disagreement.
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Adjustment to Purchase Price. (a) The Closing Payment shall be increased by In the parties' good faith estimate event that the amount of the Current Final Statement of Net Assets of Seller and decreased by less Liabilities is less than the parties' good faith estimate amount of the Current Liabilities Preliminary Statement of Net Assets less Liabilities, then Seller as shall pay Buyer the full amount of such deficit within ten (10) business days after the determination of the Closing Date (Final Statement of Net Assets less Liabilities, by wire transfer of immediately available funds to an account specified by Buyer. In the "Closing Adjustment")event that Seller does not pay to Buyer the full amount of such deficit within such period, which adjustment Buyer shall be subject have the right to final adjustment as provided for in paragraph (c) belowoffset such amounts against amounts payable to the Seller.
(b) No later than sixty (60) days after In the event that at any time subsequent to the Closing Date, a claim is made by a customer or within three (3) days after receipt former customer of either Seller or Buyer for the necessary accounting data return of any Consigned Goods and it is impossible for Buyer to return the Consigned Goods pursuant to the customer's request because they were lost or missing prior to closing, Seller shall indemnify and hold harmless Buyer from any loss, cost, damage or expense incurred in connection with the NRTC Central Billing Systemrequest for return, whichever is laterunless Seller can demonstrate that the requested Consigned Goods were on hand and in good condition, Purchaser shall make and deliver confirmed as to Seller a balance sheet reflecting the Current Assets and Current Liabilities of Seller number consigned by the customer, as of the Closing Date Date. Such indemnification shall be without regard to the limits contained in Section 13.01 (the "Closing Date Balance Sheet"), prepared on a basis consistent with GAAP. For purposes of the Closing Adjustment g) hereof and the Final Closing Adjustment (as hereinafter defined), the amount of Accounts Receivable of Seller obligation to be included in indemnify shall survive the Closing Date Balance Sheet shall include only Accounts Receivable for a period of Subscribers as reflected on Report 18A (Subscriber Accounts Receivable Aging By Account) of five years. It is agreed that the NRTC Central Billing System Reports less a reserve of six percent (6%) for Accounts Receivable which are not collectible. In addition, the Closing Date Balance Sheet and the Final Closing Adjustment shall not include as a Current Asset any accounts receivable arising amounts due Buyer from Leased Subscriber Equipment. Purchaser may, by providing Seller with written notice at least five (5) days prior to the Closing, elect to purchase all, or certain of, the DSS(TM) subscriber equipment owned by Seller (other than Leased Subscriber Equipment) on the Closing Date; provided, however, Purchaser shall not have the right to acquire any assets attributable to Seller's Electric Business. Any such equipment which is purchased by Purchaser shall be included as Inventory in the Closing Date Balance Sheet. Except as set forth in this Section 4.4(b), no other assets or liabilities shall be included in the Closing Date Balance Sheet. Seller shall make available to Purchaser such documentation, back-up, invoices, and books and records of Seller as Purchaser may reasonably request.
(c) Seller and Purchaser shall negotiate in good faith to reconcile any discrepancies which may arise in connection with the determination of the Closing Date Balance Sheet. If Seller and Purchaser are unable to reconcile such discrepancies, Seller shall have fifteen (15) days from presentment of the Closing Date Balance Sheet by Purchaser to notify Purchaser if Seller wishes to have Purchaser's determination examined. If Seller elects to have Purchaser's determination examined, it shall be submitted to the determination in Atlanta, Georgia, by the Certified Public Accounting firm of KMPG Peat Marwick (or any other independent Certified Public Accounting firm mutually acceptable to Seller and Purchaser), the cost of such examination to be paid fifty percent (50%) by Seller and fifty percent (50%) by Purchaser. The determination by Purchaser shall be final and binding on the parties unless Seller elects to have an examination as provided herein, in which case the results of the examination shall be made within thirty (30) days of such referral, and shall be final and binding on the parties (the "Final Closing Adjustment").
(d) To the extent the Final Closing Adjustment is less than the Closing Adjustment, Seller shall pay the difference in cash to Purchaser within five (5) days after the final determination. In the event the Final Closing Adjustment is greater than the Closing Adjustment, Purchaser shall pay such excess in cash to Seller within five (5) days after the final determination. If, following any payment pursuant to this Section 4.4(d)indemnification if not paid within ten (10) business days of the date due may be set off against amounts due Seller. Letters will be sent to customers as part of the closing procedure to verify consigned goods and molds. Unless noted differently in the closing inventory, an error (consigned goods will be assumed to be in billing or reporting by NRTC or otherwise) is thereafter discovered which would have affected the Final Closing Adjustment, the party in whose favor the error was made shall immediately pay in cash the amount of such error to the other partygood condition.
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Adjustment to Purchase Price. (a) The Closing Payment Purchase Price shall be increased ----------------------------- by the parties' good faith estimate Agreed Value set forth on Exhibit A of each restaurant unit that is not --------- purchased by USRP under the USRP Agreement and Buyer shall pay such increase at Closing. The Purchase Price also shall be adjusted as provided in Section5(g)(ii). In addition, as promptly as practicable, but no later than 90 days following the Closing Date, Seller and Buyer shall jointly prepare, or cause to be prepared, in accordance with GAAP financial statements of Sybra, including a consolidated balance sheet as of the Current Assets close of Seller and decreased by the parties' good faith estimate of the Current Liabilities of Seller as of business on the Closing Date (after giving effect to the "Closing Adjustment"), which adjustment shall be subject to final adjustment as provided for transactions contemplated in paragraph (cthe USRP Agreement and all dividends contemplated by this Section2) below.
(b) No later than sixty (60) days after the Closing Date, or within three (3) days after receipt of the necessary accounting data from the NRTC Central Billing System, whichever is later, Purchaser shall make and deliver to Seller a balance sheet reflecting the Current Assets and Current Liabilities of Seller as of the Closing Date (the "Closing Date Balance Sheet"), prepared on a basis consistent with GAAP. For purposes Within ten (10) days after completion of the Closing Adjustment and Balance Sheet, if the Final Closing Adjustment (as hereinafter defined), the aggregate amount of Accounts Receivable of Seller to be included in the Closing Date Balance Sheet shall include only Accounts Receivable of Subscribers as reflected on Report 18A (Subscriber Accounts Receivable Aging By Account) of the NRTC Central Billing System Reports less a reserve of six percent (6%) for Accounts Receivable which are not collectible. In addition, the Closing Date Balance Sheet Accrued Expenses and the Final Closing Adjustment shall not include as a Current Asset any accounts receivable arising from Leased Subscriber Equipment. Purchaser may, by providing Seller with written notice at least five (5) days prior to the Closing, elect to purchase all, or certain of, the DSS(TM) subscriber equipment owned by Seller (other than Leased Subscriber Equipment) on the Closing Date; provided, however, Purchaser shall not have the right to acquire any assets attributable to Seller's Electric Business. Any such equipment which is purchased by Purchaser shall be included as Inventory in the Closing Date Balance Sheet. Except Payables as set forth in this Section 4.4(b)the Closing Balance Sheet, no other assets or liabilities shall be included net of the aggregate amount of Cash and Inventories as set forth in the Closing Date Balance Sheet. , is greater than $6,895,000, the Purchase Price shall be adjusted and the Seller shall make a cash payment in immediately available funds to Purchaser such documentationthe Buyer in an amount (the "Payment Amount") equal to the difference between U.S.$6,895,000 and the aggregate amount of Accrued Expenses and Payables as set forth in the Closing Balance Sheet, back-upnet of the aggregate of Cash and Inventories as set forth in the Closing Balance Sheet, invoices, and books and records plus interest on the Payment Amount at the rate of Seller as Purchaser may reasonably request.
eight percent (c8%) Seller and Purchaser shall negotiate in good faith to reconcile any discrepancies which may arise in connection with the determination of per annum calculated from the Closing Date Balance Sheet. If Seller and Purchaser are unable to reconcile such discrepancies, Seller shall have fifteen (15) days from presentment of through the Closing Date Balance Sheet by Purchaser to notify Purchaser if Seller wishes to have Purchaser's determination examined. If Seller elects to have Purchaser's determination examined, it shall be submitted to the determination in Atlanta, Georgia, by the Certified Public Accounting firm of KMPG Peat Marwick (or any other independent Certified Public Accounting firm mutually acceptable to Seller and Purchaser), the cost date of such examination to be paid fifty percent (50%) by Seller and fifty percent (50%) by Purchasercash payment. The determination by Purchaser shall be final and binding on the parties unless Seller elects to have an examination as provided herein, in which case the results of the examination shall be made within thirty (30) days of such referral, and shall be final and binding on the parties (the "Final Closing Adjustment").
(d) To the extent the Final Closing Adjustment is less than the Closing Adjustment, Seller shall pay the difference in cash to Purchaser within five (5) days after the final determination. In the event the Final Closing Adjustment is greater than the Closing Adjustment, Purchaser shall pay such excess in cash to Seller within five (5) days after the final determination. If, following any Any payment pursuant to this Section 4.4(d), the foregoing provisions shall be an error adjustment (net of any interest included in billing or reporting by NRTC or otherwisesuch payment) is thereafter discovered which would have affected the Final Closing Adjustment, the party in whose favor the error was made shall immediately pay in cash the amount of such error to the other partyPurchase Price.
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Adjustment to Purchase Price. (a) The Closing Payment shall be increased by the parties' good faith estimate of the Current Assets of Seller and decreased by the parties' good faith estimate of the Current Liabilities of Seller as of the Closing Date (the "Closing Adjustment"), which adjustment shall be subject to final adjustment as provided for in paragraph (c) below.
(b) No later than sixty (60) calendar days after following the Closing DateClosing, or within three (3) days after receipt of the necessary accounting data from the NRTC Central Billing System, whichever is later, Purchaser Seller shall make prepare and deliver to Seller Cott a balance sheet reflecting statement, certified by Seller's Chief Financial Officer, of the Current Assets working capital of the RC International Business and Current Liabilities the Cott Business, being Inventory, RC International Accounts Receivable and Cott Accounts Receivable net of Seller (i) payables, (ii) accrued liabilities and (iii) other liabilities, which, in the case of (i), (ii) and (iii) are of the nature of the categories set forth in Schedule 2.3(a), and which are related to or arise out of the RC International Business or the Cott Business (the "Working Capital"), as of the close of business on the Closing Date (the "Closing Date Balance SheetInitial Working Capital Statement"), prepared on a basis consistent with GAAPwhich shall set forth in detail the amounts underlying Seller's determination of the dollar value of the Working Capital. For purposes of this Section 2.3, the value of the components comprising Working Capital shall be determined as set forth in the notes to Schedule 2.3(a) and as set forth in Schedule 2.3(b).
(b) Cott shall notify Seller in writing (the "Notice of Disagreement") within thirty (30) days after receiving the Initial Working Capital Statement if Cott disagrees with Seller's calculation of the value of the Working Capital as of the close of business on the Closing Adjustment Date which Notice of Disagreement shall set forth in reasonable detail the basis for such dispute and the U.S. dollar amounts involved and Cott's good faith estimate of the value of the Working Capital as of the close of business on the Closing Date. If Cott does not deliver a Notice of Disagreement to Seller within such thirty-day period, then the Initial Working Capital Statement shall be deemed to have been accepted by Buyers, shall become final and binding upon the parties and shall be the "Final Working Capital Statement."
(c) During the fifteen (15) Business Days immediately following the delivery of a Notice of Disagreement, Seller and Cott shall seek in good faith to resolve any differences that they may have with respect to any matter specified in the Notice of Disagreement. If at the end of such fifteen (15) Business Day period Seller and Cott have been unable to agree upon the valuation of the Working Capital, then Seller and Cott shall submit to the Independent Accounting Firm for review and resolution any and all matters that remain in dispute with respect to the Notice of Disagreement. Cott and Seller shall use their reasonable efforts to cause the Independent Accounting Firm to use commercially practicable efforts to make a final determination (which determination shall be binding on the parties hereto) of the value of the Working Capital as of the close of business on the Closing Adjustment Date within fifteen (15) Business Days from such submission, and such final determination shall be the "Final Working Capital Statement." The cost of the Independent Accounting Firm's review and determination shall be split equally between Seller and Cott. During the fifteen (15) Business Day review by the Independent Accounting Firm, Cott and Seller will each make available to the Independent Accounting Firm interviews with such individuals and such information, books and records as may be reasonably required by the Independent Accounting Firm to make its final determination.
(d) If the value of the Working Capital as of the close of business on the Closing Date (as hereinafter defined)set forth in the Final Working Capital Statement) is less than $8.7 million, Seller shall pay to Cott the amount of Accounts Receivable of Seller to be included in such shortfall plus interest at the Agreed Rate calculated from the Closing Date Balance Sheet shall include only Accounts Receivable to the date of Subscribers payment as reflected on Report 18A (Subscriber Accounts Receivable Aging By Account) provided in this Section 2.3. If the value of the NRTC Central Billing System Reports less a reserve Working Capital as of six percent (6%) for Accounts Receivable which are not collectible. In addition, the close of business on the Closing Date Balance Sheet and (as set forth in the Final Working Capital Statement) is greater than $8.7 million, Cott shall pay to Seller the amount of such surplus plus interest at the Agreed Rate calculated from the Closing Adjustment shall not include Date to the date of payment as a Current Asset any accounts receivable arising from Leased Subscriber Equipmentprovided in this Section 2.3. Purchaser may, by providing Seller with written notice at least Within five (5) days prior to Business Days after the Closing, elect to purchase all, or certain of, the DSS(TM) subscriber equipment owned by Seller (other than Leased Subscriber Equipment) on the Closing Date; provided, however, Purchaser shall not have the right to acquire any assets attributable to Seller's Electric Business. Any such equipment which is purchased by Purchaser shall be included as Inventory in the Closing Date Balance Sheet. Except as set forth in this Section 4.4(b), no other assets or liabilities shall be included in the Closing Date Balance Sheet. Seller shall make available to Purchaser such documentation, back-up, invoices, and books and records of Seller as Purchaser may reasonably request.
(c) Seller and Purchaser shall negotiate in good faith to reconcile any discrepancies which may arise in connection with the determination of the Closing Date Balance Sheet. If Seller and Purchaser are unable to reconcile such discrepancies, Seller shall have fifteen (15) days from presentment of the Closing Date Balance Sheet by Purchaser to notify Purchaser if Seller wishes to have Purchaser's determination examined. If Seller elects to have Purchaser's determination examined, it shall be submitted to the determination in Atlanta, Georgia, by the Certified Public Accounting firm of KMPG Peat Marwick (or any other independent Certified Public Accounting firm mutually acceptable to Seller and Purchaser), the cost of such examination to be paid fifty percent (50%) by Seller and fifty percent (50%) by Purchaser. The determination by Purchaser shall be Final Working Capital Statement becomes final and binding on the parties unless Seller elects hereto, Cott or Seller, as applicable, shall pay to have an examination as the other the amounts provided herein, in which case by this Section 2.3(d). The allocation set forth on the results of the examination Allocation Schedule shall be adjusted to reflect any payments made within thirty (30) days of such referral, and shall be final and binding on the parties (the "Final Closing Adjustment").
(d) To the extent the Final Closing Adjustment is less than the Closing Adjustment, Seller shall pay the difference in cash to Purchaser within five (5) days after the final determination. In the event the Final Closing Adjustment is greater than the Closing Adjustment, Purchaser shall pay such excess in cash to Seller within five (5) days after the final determination. If, following any payment pursuant to this Section 4.4(d), an error (in billing or reporting by NRTC or otherwise) is thereafter discovered which would have affected the Final Closing Adjustment, the party in whose favor the error was made shall immediately pay in cash the amount of such error to the other party2.3.
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Adjustment to Purchase Price. (a) The Attached hereto as Schedule 2.4(a) is a statement of the estimated Net Working Capital of the Business as of December 31, 1997, prepared in accordance with IAS and A-L's accounting policies applied on a consistent basis with the Financial Statements (the "Preliminary NWC Statement"). Not later than three (3) business days prior to the Closing Payment Date, the Seller shall conduct an inventory of the Business, observed by the Buyer and, at the Closing Date, shall furnish to Buyer (i) an estimate of the Net Working Capital of the Business calculated as of the close of business on the Closing Date, prepared in accordance with IAS and A-L's accounting policies applied on a consistent basis with the Financial Statements (as defined in Section 3.7 below) and the Preliminary NWC Statement and expressed in Canadian dollars (the "ESTIMATED NWC STATEMENT"), PROVIDED, HOWEVER, that the Estimated NWC Statement will take into account only information within the Knowledge of the Seller with respect to the Business on the Closing Date; and (ii) a calculation of any required adjustment to the Purchase Price pursuant to Section 2.4(b) hereof.
(b) If the value of the Net Working Capital as reflected in the Estimated NWC Statement is less than an amount equal to the Canadian dollar equivalent of U.S.$4,590,000, converted at Closing in the manner provided in Section 2.9, the Purchase Price paid to the Seller at Closing shall be decreased by the full amount of such deficiency. If the value of the Net Working Capital as reflected in the Estimated NWC Statement exceeds an amount equal to the Canadian dollar equivalent of U.S.$4,590,000, converted at Closing in the manner provided in Section 2.9, the Purchase Price paid to the Seller at Closing shall be increased by the parties' good faith estimate full amount of such excess.
(c) Within 21 days following the Closing, the Seller shall prepare and deliver to Buyer a Statement of the Current Assets of Seller and decreased by the parties' good faith estimate of the Current Liabilities of Seller Net Working Capital, as of the Closing Date (the "Closing Adjustment"), which adjustment shall be subject to final adjustment as provided for in paragraph (c) below.
(b) No later than sixty (60) days after the Closing Date, or within three (3) days after receipt of the necessary accounting data from the NRTC Central Billing System, whichever is later, Purchaser shall make and deliver to Seller a balance sheet reflecting the Current Assets and Current Liabilities of Seller as of the Closing Date (the "Closing Date Balance Sheet"), prepared on a basis consistent with GAAP. For purposes of the Closing Adjustment Estimated NWC Statement and expressed in Canadian dollars (the Final Closing Adjustment (as hereinafter defined"CLOSING NWC STATEMENT"), the amount of Accounts Receivable of Seller to be included in the Closing Date Balance Sheet shall include only Accounts Receivable of Subscribers as reflected on Report 18A (Subscriber Accounts Receivable Aging By Account) of the NRTC Central Billing System Reports less a reserve of six percent (6%) for Accounts Receivable which are not collectible. In addition, the Closing Date Balance Sheet and the Final Closing Adjustment shall not include as a Current Asset any accounts receivable arising from Leased Subscriber Equipment. Purchaser may, by providing Seller with written notice at least five (5) days prior to the Closing, elect to purchase all, or certain of, the DSS(TM) subscriber equipment owned by Seller (other than Leased Subscriber Equipment) on the Closing Date; provided, however, Purchaser shall not have the right to acquire any assets attributable to Seller's Electric Business. Any such equipment which is purchased by Purchaser shall be included as Inventory in the Closing Date Balance Sheet. Except as set forth in this Section 4.4(b), no other assets or liabilities shall be included in the Closing Date Balance Sheet. Seller shall make available to Purchaser such documentation, back-up, invoices, and books and records of Seller as Purchaser may reasonably request.
(ci) The Closing NWC Statement shall become final and binding on Seller and Purchaser Buyer (in such event, the "FINAL CLOSING STATEMENT") unless Buyer gives written notice to the Seller of its disagreement with respect to any matter contained therein (the "NOTICE OF DISAGREEMENT") within thirty (30) days after the receipt thereof by Buyer. A Notice of Disagreement shall negotiate not be permitted unless the aggregate amount in good faith dispute exceeds Fifteen Thousand Canadian Dollars (Cdn.$15,000 and shall not be permitted with respect to reconcile any discrepancies which may arise in connection with the determination inventory count (but not the valuation of the Closing Date Balance Sheetinventory) observed by Buyer pursuant to Section 2.4(a). If Seller and Purchaser are unable to reconcile such discrepancies, Seller A Notice of Disagreement shall have specify in reasonable detail the nature of any disagreement so asserted. For a period of fifteen (15) days from presentment after the delivery of the Closing Date Balance Sheet by Purchaser to notify Purchaser if Seller wishes to have Purchaser's determination examined. If Seller elects to have Purchaser's determination examinedNotice of Disagreement, it shall be submitted to the determination in Atlanta, Georgia, by the Certified Public Accounting firm of KMPG Peat Marwick (or any other independent Certified Public Accounting firm mutually acceptable to Seller and Purchaser)the Buyer shall attempt to resolve in writing all of their differences with respect to each matter specified in the Notice of Disagreement, the cost of in which case any such examination to be paid fifty percent (50%) by Seller and fifty percent (50%) by Purchaser. The determination by Purchaser resolution shall be final and binding on the parties.
(ii) If, at the end of such 15-day period, the Seller and the Buyer have not resolved in writing all of their differences with respect to any such matter, then each unresolved matter (the "DISPUTED MATTER") shall be submitted to and reviewed by a neutral "big six" accounting firm mutually agreeable to the parties unless Seller elects to have an examination as provided herein, in and which case the results is independent of the examination Buyer, the Seller and their respective Affiliates (the "NEUTRAL ACCOUNTANTS"). The Neutral Accountants shall be made consider only the Disputed Matters and shall resolve all Disputed Matters in writing within thirty (30) days of such referralsubmission, and its decisions with respect to the Disputed Matters, which shall be based on the accounting policies and principles and the proviso set forth in Section 2.4(a)(i) above, shall be final and binding on the parties Seller and the Buyer; PROVIDED THAT, no such resolution of the Disputed Matters shall require payment of an amount greater than the highest amount or less than the lowest amount suggested for such resolution by either the Seller or the Buyer. The Neutral Accountants shall notify the Seller and the Buyer of their resolution of the Disputed Matters, and upon receipt thereof by the Neutral Accountants, the Neutral Accountants shall promptly prepare a final Closing NWC Statement reflecting the resolution of all Disputed Matters promptly after such resolution (in such event, the "Final Closing AdjustmentFINAL CLOSING STATEMENT")) and shall deliver it to the Buyer and the Seller.
(de) To The Seller and the extent Buyer shall each be responsible for and shall each pay one-half of the fees and expenses incurred in connection with the Neutral Accountants.
(f) Within ten (10) days after receipt of the Final Closing Adjustment Statement.
(i) If the Net Working Capital as set forth in the Final Closing Statement is less than the Closing AdjustmentNet Working Capital as set forth in the Estimated NWC Statement, the Seller shall pay to the difference Buyer the difference, first by giving instructions to the Escrow Agent to distribute up to an amount equal to the Canadian dollar equivalent of U.S.$200,000, converted at Closing in cash the manner provided in Section 2.9, from any remaining Escrow Fund (as such term is defined in the Escrow Agreement), and then any additional amounts shall be paid by the Seller to Purchaser within five the Buyer on demand in immediately available funds, provided that, notwithstanding the foregoing, the aggregate amount of the Escrow Fund to be distributed for this purpose and for the purpose of any Net Working Capital adjustment, if any, under the LMP U.S.A. Acquisition Agreement shall not exceed an amount equal to the Canadian dollar equivalent of U.S.$200,000, converted at Closing in the manner provided in Section 2.9.
(5ii) days after If the final determination. In the event Net Working Capital as set forth in the Final Closing Adjustment Statement is greater than the Closing AdjustmentNet Working Capital as set forth in the Estimated NWC Statement, Purchaser the Buyer shall pay such excess to the Seller the difference in cash immediately available funds.
(g) Any payment required to Seller within five (5) days after the final determination. If, following any payment be made pursuant to this Section 4.4(d), an error (in billing or reporting by NRTC or otherwise) is thereafter discovered which would have affected 2.4 shall be made together with simple interest thereon from the Final Closing Adjustment, the party in whose favor the error was made shall immediately pay in cash the amount of such error Date to the other partydate of payment at the annual rate (calculated on the basis of a 365-day year) equal to the prime rate published by the WALL STREET JOURNAL, Eastern Edition on the Closing Date.
Appears in 1 contract
Adjustment to Purchase Price. (a) The Not more than 180 days following the Closing Payment Date, Purchaser shall be increased by the parties' good faith estimate deliver to Seller a balance sheet of the Current Assets of Seller and decreased by the parties' good faith estimate of the Current Liabilities of Seller Company as of the Closing Date (the "Final Balance Sheet") which shall be prepared in accordance with SAP utilizing the same methodologies and procedures used to prepare the Closing AdjustmentBalance Sheet. The Final Balance Sheet shall provide a categorization of the assets and liabilities comprising the Excess Tangible Net Equity of the Company and the other assets and liabilities of the Company as of the Closing Date. At the same time Purchaser delivers the Final Balance Sheet to Seller, Purchaser shall also deliver to Seller a statement setting forth in reasonable detail the calculation of the Excess Tangible Net Equity and the other assets and liabilities of the Company used to prepare the Final Balance Sheet.
(b) Seller shall be afforded the opportunity to review the Final Balance Sheet and shall be provided full access to the books, records and other relevant documents containing information on which the Final Balance Sheet is based, including but not limited to, work papers, reserve schedules and actuarial reports, as well as access to the accountants of Purchaser responsible for the preparation of the Final Balance Sheet. The Final Balance Sheet shall become final and binding on the parties on the sixtieth (60th) day following the date such Final Balance Sheet is delivered to Seller by Purchaser, unless (i) Seller delivers to Purchaser during such sixty (60) day period a notice identifying proposed adjustment(s) to the Final Balance Sheet and explaining the reasons therefor (a "Proposed Adjustment Notice"), in which adjustment event such matter shall be subject handled as set forth in paragraph (c) below, or (ii) Seller, in connection with its review of the Final Balance Sheet, does not receive all documents and materials and/or access to final adjustment or cooperation from Purchaser or its outside accountants that are reasonably requested, in which event said period for delivering a Proposed Adjustment Notice shall be extended until the twentieth (20th) day following the date on which Seller receives all such documents, materials, access and cooperation. Any Dispute regarding the adequacy of the documents and materials provided by Purchaser to Seller shall be resolved by the Balance Sheet Accountants as provided for in paragraph (c) below.
(bc) No later than sixty (60) days after If a Proposed Adjustment Notice is delivered within the Closing Date, or within three (3) days after receipt of the necessary accounting data from the NRTC Central Billing System, whichever is later, Purchaser shall make and deliver to Seller a balance sheet reflecting the Current Assets and Current Liabilities of Seller as of the Closing Date (the "Closing Date Balance Sheet"), prepared on a basis consistent with GAAP. For purposes of the Closing Adjustment and the Final Closing Adjustment (as hereinafter defined), the amount of Accounts Receivable of Seller to be included in the Closing Date Balance Sheet shall include only Accounts Receivable of Subscribers as reflected on Report 18A (Subscriber Accounts Receivable Aging By Account) of the NRTC Central Billing System Reports less a reserve of six percent (6%) for Accounts Receivable which are not collectible. In addition, the Closing Date Balance Sheet and the Final Closing Adjustment shall not include as a Current Asset any accounts receivable arising from Leased Subscriber Equipment. Purchaser may, by providing Seller with written notice at least five (5) days prior to the Closing, elect to purchase all, or certain of, the DSS(TM) subscriber equipment owned by Seller (other than Leased Subscriber Equipment) on the Closing Date; provided, however, Purchaser shall not have the right to acquire any assets attributable to Seller's Electric Business. Any such equipment which is purchased by Purchaser shall be included as Inventory in the Closing Date Balance Sheet. Except as period set forth in this Section 4.4(b)above, no other assets or liabilities shall be included in the Closing Date Balance Sheet. Seller shall make available to Purchaser such documentation, back-up, invoices, and books and records of Seller as Purchaser may reasonably request.
(c) then Seller and Purchaser shall negotiate in good faith to reconcile attempt to resolve any discrepancies which may arise Dispute with respect to any proposed adjustments contained in connection with the determination of the Closing Date Balance SheetProposed Adjustment Notice. If Seller and Purchaser are unable cannot resolve such Dispute within ten (10) Business Days commencing on the date of delivery of the Proposed Adjustment Notice, then either Purchaser or Seller may recommend a firm of independent certified public accountants of nationally recognized standing that is not providing services to reconcile such discrepancieseither Purchaser, Seller or their Affiliates to review the disputed calculation, and whose determination shall have fifteen be binding upon the parties. The firm of independent certified public accounts retained to make a determination with respect to any disputed calculation shall be designated by agreement between Seller and Purchaser (15) days from presentment the "Balance Sheet Accountants"); provided, however, if the parties fail to agree, the Balance Sheet Accountants shall be PriceWaterhouseCoopers. If PriceWaterhouseCoopers acts as the Balance Sheet Accountants, no principal of PriceWaterhouseCoopers with a pre-existing professional or familial relationship with either of the Closing Date parties or any of their respective officers or directors may be utilized. In making its determination with respect to whether any adjustments to the Final Balance Sheet by Purchaser are appropriate, the Balance Sheet Accountants shall evaluate those items or amounts in the disputed calculation to notify Purchaser which Seller has objected and shall determine whether such items have been prepared in accordance with the terms of this Agreement and any applicable accounting principles. The fees and expenses of the Balance Sheet Accountants, if Seller wishes to have Purchaser's determination examined. If Seller elects to have Purchaser's determination examinedany, it shall be submitted to the determination in Atlanta, Georgia, borne pro-rata by the Certified Public Accounting firm of KMPG Peat Marwick (or any other independent Certified Public Accounting firm mutually acceptable to Seller and Purchaser), based upon the cost of such examination to be paid fifty percent (50%) by Seller difference between their respective calculations and fifty percent (50%) by Purchaser. The determination by Purchaser shall be the final and binding on the parties unless Seller elects to have an examination as provided herein, in which case the results calculations of the examination shall be made within thirty (30) days of such referral, and shall be final and binding on the parties (the "Final Closing Adjustment")Balance Sheet Accountants.
(d) To the extent After all disputes with respect to the Final Balance Sheet have been resolved pursuant to the procedures set forth in this Section 2.14, (i) if the amount of the Excess Tangible Net Equity on the Final Balance Sheet exceeds the Excess Tangible Net Equity on the Closing Adjustment Balance Sheet, then Purchaser shall pay to Seller cash equal to the difference between the Excess Tangible Net Equity on the Final Balance Sheet and the Excess Tangible Net Equity on the Closing Balance Sheet; and (ii) if the Excess Tangible Net Equity on the Final Balance Sheet is less than the Excess Tangible Net Equity on the Closing AdjustmentBalance Sheet, Seller shall pay the difference in cash to Purchaser within five (5) days after the final determination. In the event the Final Closing Adjustment is greater than the Closing Adjustment, Purchaser shall pay such excess in cash equal to Seller within five (5) days after the final determination. If, following any payment pursuant to this Section 4.4(d), an error (in billing or reporting by NRTC or otherwise) is thereafter discovered which would have affected the Final Closing Adjustment, the party in whose favor the error was made shall immediately pay in cash the amount of the difference between the Excess Tangible Net Equity on the Final Balance Sheet and the Excess Tangible Net Equity on the Closing Balance Sheet.
(e) Purchaser shall not compromise or settle any claim or account receivable of the Company for less than the full value assigned to such error claim or account receivable on the Closing Balance Sheet in exchange for any direct or indirect benefit prior to final resolution of all Disputes respecting the other partyPurchase Price without the prior written consent of Seller.
Appears in 1 contract
Adjustment to Purchase Price. (a) Subject to Section 3.3(b), at the Closing, the Purchase Price shall be adjusted, without duplication, to account for the items set forth in this Section 3.3(a):
(i) The Purchase Price shall be increased or decreased, as applicable, to reflect the difference between the book value of all Inventories as of the Closing Payment Date and the value of all Inventories as of June 30, 1998 as reflected on Schedule 3.3(a)(i).
(ii) The Purchase Price shall be adjusted to account for the items prorated as of the Closing Date pursuant to Section 3.5.
(iii) The Purchase Price shall be increased by the partiesamount expended, or for which liabilities are incurred, by Sellers between the date hereof and the Closing Date for capital additions to or replacements of property, plant and equipment included in the Purchased Assets and other expenditures or repairs on property, plant and equipment included in the Purchased Assets that would be capitalized by Sellers in accordance with normal accounting policies of Sellers and its Affiliates (together, "Capital Expenditures"), which are not described on Schedule 6.1 and which either (A) are mandated after the date of this Agreement by any Governmental Authority (subject to Buyer's right reasonably to direct Sellers to contest such mandates by appropriate proceedings at Buyer's expense and provided there is no adverse impact on the Purchased Assets); or (B) do not fall within category (A) above but do not exceed in the aggregate $2 million for all Aggregate Purchased Assets; or (C) are approved in writing by Buyer.
(b) At least ten (10) Business Days prior to the Closing Date, Sellers shall prepare and deliver to Buyer an estimated closing statement (the "Estimated Closing Statement") that shall set forth Sellers' good faith best estimate of the Current Assets adjustments to the Purchase Price required by Section 3.3(a) (the "Estimated Adjustment"). Within five (5) Business Days following the delivery of Seller and decreased the Estimated Closing Statement by the parties' Sellers to Buyer, Buyer may object in good faith estimate of to the Current Liabilities of Seller as of Estimated Adjustment in writing. If Buyer objects to the Estimated Adjustment, the Parties shall attempt to resolve their differences by negotiation. If the Parties are unable to do so within three (3) Business Days prior to the Closing Date (or if Buyer does not object to the Estimated Adjustment), the Purchase Price shall be adjusted (the "Closing Adjustment"), which adjustment ) for the Closing by the amount of the Estimated Adjustment not in dispute. The disputed portion shall be subject paid as a Post-Closing Adjustment to final adjustment as provided for in paragraph the extent required by Section 3.3(c).
(c) below.
(b) No later than Within sixty (60) days after following the Closing Date, or within three (3) days after receipt of the necessary accounting data from the NRTC Central Billing System, whichever is later, Purchaser Sellers shall make prepare and deliver to Seller Buyer a balance sheet reflecting the Current Assets and Current Liabilities of Seller as of the Closing Date final closing statement (the "Post-Closing Date Balance SheetStatement") that shall set forth all adjustments to the Purchase Price required by Section 3.3(a) (the "Post-Closing Adjustment"), prepared on a basis consistent with GAAP. For purposes of the The Post-Closing Adjustment and the Final Closing Adjustment (as hereinafter defined), the amount of Accounts Receivable of Seller to be included in the Closing Date Balance Sheet shall include only Accounts Receivable of Subscribers as reflected on Report 18A (Subscriber Accounts Receivable Aging By Account) of the NRTC Central Billing System Reports less a reserve of six percent (6%) for Accounts Receivable which are not collectible. In addition, the Closing Date Balance Sheet and the Final Closing Adjustment shall not include as a Current Asset any accounts receivable arising from Leased Subscriber Equipment. Purchaser may, by providing Seller with written notice at least five (5) days prior to the Closing, elect to purchase all, or certain of, the DSS(TM) subscriber equipment owned by Seller (other than Leased Subscriber Equipment) on the Closing Date; provided, however, Purchaser shall not have the right to acquire any assets attributable to Seller's Electric Business. Any such equipment which is purchased by Purchaser Statement shall be included prepared using the same accounting principles, policies and methods as Inventory in the Closing Date Balance Sheet. Except as set forth in this Section 4.4(b), no other assets or liabilities shall be included in the Closing Date Balance Sheet. Seller shall make available to Purchaser such documentation, back-up, invoices, and books and records of Seller as Purchaser may reasonably request.
(c) Seller and Purchaser shall negotiate in good faith to reconcile any discrepancies which may arise Sellers have historically used in connection with the determination calculation of the items reflected on such Post-Closing Date Balance SheetStatement. Within thirty (30) days following the delivery of the Post-Closing Statement by Sellers to Buyer, Buyer may object to the Post-Closing Adjustment in writing. Sellers agree to cooperate with Buyer to provide Buyer and Buyer's Representatives information used to prepare the Post-Closing Statement and information relating thereto. If Seller and Purchaser Buyer objects to the Post-Closing Adjustment, the Parties shall attempt to resolve such dispute by negotiation. If the Parties are unable to reconcile resolve such discrepancies, Seller shall have fifteen dispute within thirty (1530) days from presentment of any objection by Buyer, the Parties shall appoint the Independent Accounting Firm, which shall, at Sellers' and Buyer's joint expense, review the Post-Closing Date Balance Sheet by Purchaser to notify Purchaser if Seller wishes to have Purchaser's determination examined. If Seller elects to have Purchaser's determination examined, it shall be submitted Adjustment and determine the appropriate adjustment to the determination in AtlantaPurchase Price, Georgiaif any, by the Certified Public Accounting firm of KMPG Peat Marwick (or any other independent Certified Public Accounting firm mutually acceptable to Seller and Purchaser), the cost of such examination to be paid fifty percent (50%) by Seller and fifty percent (50%) by Purchaser. The determination by Purchaser shall be final and binding on the parties unless Seller elects to have an examination as provided herein, in which case the results of the examination shall be made within thirty (30) days of such referral, appointment. The Parties agree to cooperate with the Independent Accounting Firm and provide it with such information as it reasonably requests to enable it to make such determination. The finding of such Independent Accounting Firm shall be final and binding on the parties (Parties hereto. Upon determination of the "Final Closing Adjustment").
(d) To appropriate adjustment by agreement of the extent Parties or by binding determination of the Final Independent Accounting Firm, if the Post- 26 Closing Adjustment is more or less than the Closing Adjustment, Seller shall pay the Party owing the difference in cash to Purchaser within five (5) days after the final determination. In the event the Final Closing Adjustment is greater than the Closing Adjustment, Purchaser shall pay deliver such excess in cash to Seller within five (5) days after the final determination. If, following any payment pursuant to this Section 4.4(d), an error (in billing or reporting by NRTC or otherwise) is thereafter discovered which would have affected the Final Closing Adjustment, the party in whose favor the error was made shall immediately pay in cash the amount of such error difference to the other partyParty no later than two (2) Business Days after such determination, in immediately available funds or in any other manner as reasonably requested by the payee.
Appears in 1 contract
Sources: Purchase and Sale Agreement (Pennsylvania Electric Co)
Adjustment to Purchase Price. (a) The Closing Payment shall be increased by the parties' good faith estimate of the Current Assets of Seller and decreased by the parties' good faith estimate of the Current Liabilities of Seller as of the Closing Date (the "Closing Adjustment"), which adjustment shall be subject to final adjustment as provided for in paragraph (c) below.
(b) No later than Within sixty (60) days after the Closing DateClosing, or within three (3) days after receipt of the necessary accounting data from the NRTC Central Billing System, whichever is later, Purchaser shall make Seller will prepare and deliver to Seller Buyer a balance sheet reflecting the Current Assets and Current Liabilities of Seller as computation of the Closing Date actual Specified Payables Adjustment Amount (the "Closing Date Balance Sheet"“Actual Specified Payables Adjustment Amount”), prepared on a basis consistent with GAAPsuch Actual Specified Payables Adjustment Amount being an absolute value. For purposes If within thirty (30) days following delivery of such computation Buyer does not object in writing thereto to Seller, then the Closing Actual Specified Payables Adjustment and the Final Closing Adjustment (as hereinafter defined), the amount of Accounts Receivable of Seller to Amount shall be included in the Closing Date Balance Sheet shall include only Accounts Receivable of Subscribers as reflected on Report 18A the computation provided by Seller pursuant to the immediately preceding sentence. If within such thirty (Subscriber Accounts Receivable Aging By Account) of the NRTC Central Billing System Reports less a reserve of six percent (6%) for Accounts Receivable which are not collectible. In addition, the Closing Date Balance Sheet and the Final Closing Adjustment shall not include as a Current Asset any accounts receivable arising from Leased Subscriber Equipment. Purchaser may, by providing Seller with written notice at least five (530) days prior Buyer objects to the ClosingSeller in writing to such computation, elect to purchase all, or certain of, the DSS(TM) subscriber equipment owned by then Buyer and Seller (other than Leased Subscriber Equipment) on the Closing Date; provided, however, Purchaser shall not have the right to acquire any assets attributable to Seller's Electric Business. Any such equipment which is purchased by Purchaser shall be included as Inventory in the Closing Date Balance Sheet. Except as set forth in this Section 4.4(b), no other assets or liabilities shall be included in the Closing Date Balance Sheet. Seller shall make available to Purchaser such documentation, back-up, invoices, and books and records of Seller as Purchaser may reasonably request.
(c) Seller and Purchaser shall negotiate in good faith and attempt to reconcile any discrepancies which may arise resolve their disagreement. Should such negotiations not result in connection with an agreement within thirty (30) days after receipt by Seller of such written objection from Buyer, then the determination disputed items of the Closing Date Balance Sheet. If Seller and Purchaser are unable to reconcile Actual Specified Payables Adjustment Amount (such discrepanciesitems, Seller shall have fifteen (15the “disputed items”) days from presentment of the Closing Date Balance Sheet by Purchaser to notify Purchaser if Seller wishes to have Purchaser's determination examined. If Seller elects to have Purchaser's determination examined, it shall be submitted to the Independent Accounting Firm, and all other items on the Actual Specified Payables Adjustment Amount shall be final, binding and conclusive on the Parties. The Independent Accounting Firm will deliver to Buyer and Seller written determinations of the disputed items (such determination to include a worksheet setting forth all material calculations used in Atlanta, Georgia, by the Certified Public Accounting firm of KMPG Peat Marwick (or any other independent Certified Public Accounting firm mutually acceptable to Seller arriving at such determination and Purchaser), the cost of such examination to be paid fifty percent (50%based solely on information provided to the Independent Accounting Firm by Buyer and Seller) by Seller and fifty percent (50%) by Purchaser. The determination by Purchaser shall be final and binding on the parties unless Seller elects to have an examination as provided herein, in which case the results of the examination shall be made within thirty (30) days of such referralthe submission of the dispute to the Independent Accounting Firm, which determination will be final, binding and shall be final and binding conclusive on the parties (the "Final Closing Adjustment").
(d) To the extent the Final Closing Adjustment is less than the Closing Adjustment, Seller shall pay the difference in cash to Purchaser within five (5) days after the final determinationParties. In resolving any disagreement, the event the Final Closing Adjustment is Independent Accounting Firm may not assign any value to a disputed item greater than the Closing Adjustmentgreatest value claimed for such disputed item by any Party or lesser than the lowest value claimed for such disputed item by any Party. All fees and expenses relating to the work, Purchaser if any, to be performed by the Independent Accounting Firm pursuant to this Section 2.3 will be allocated between Seller and Buyer in inverse proportion as each shall pay such excess prevail in cash to Seller within five respect of the dollar amount of disputed items so submitted (5) days after as finally determined by the final determinationIndependent Accounting Firm). If, following any the determination of the Actual Specified Payables Adjustment Amount (as agreed between the Parties or as determined by the Independent Accounting Firm), the Estimated Specified Payables Adjustment Amount minus the Actual Specified Payables Adjustment Amount is a positive number, then Buyer shall be obligated to pay Seller a cash payment pursuant equal to the positive number. If the Estimated Specified Payables Adjustment Amount minus the Actual Specified Payables Adjustment Amount is a negative number, then Seller shall be obligated to pay Buyer a cash payment equal to the absolute value of such negative number. Any such payment will be due and payable within three (3) Business Days after the Actual Specified Payables Adjustment Amount is finally determined as provided in this Section 4.4(d)2.3, an error (in billing and will be payable by wire transfer of immediately available funds to such account or reporting accounts as shall be specified by NRTC Buyer or otherwise) is thereafter discovered which would have affected Seller, as applicable. For the Final Closing Adjustmentavoidance of doubt, after taking into account the payment of the Estimated Specified Payables Adjustment Amount, the party in whose favor the error was aggregate adjustment made shall immediately pay in cash the amount of such error with respect to the other partySpecified Payables Adjustment Amount shall be an amount equal to the Actual Specified Payables Adjustment Amount.
Appears in 1 contract
Sources: Purchase and Sale Agreement (PPL Energy Supply LLC)
Adjustment to Purchase Price. (a) The Closing Payment shall be increased by the parties' good faith estimate of the Current Assets of Seller and decreased by the parties' good faith estimate of the Current Liabilities of Seller as of the Closing Date (the "Closing Adjustment"), which adjustment shall be subject to final adjustment as provided for in paragraph (c) below.
(b) No later than sixty (60) days after the Closing Date, or within three (3) days after receipt of the necessary accounting data from the NRTC Central Billing System, whichever is later, Purchaser shall make and deliver to Seller a balance sheet reflecting the Current Assets and Current Liabilities of Seller as of the Closing Date (the "Closing Date Balance Sheet"), prepared on a basis consistent with GAAP. For purposes of the Closing Adjustment and the Final Closing Adjustment (as hereinafter defined), the amount of Accounts Receivable of Seller to be included in the Closing Date Balance Sheet shall include only Accounts Receivable of Subscribers as reflected on Report 18A (Subscriber Accounts Receivable Aging By Account) of the NRTC Central Billing System Reports less a reserve of six percent (6%) for Accounts Receivable which are not collectible. In addition, the Closing Date Balance Sheet and the Final Closing Adjustment shall not include as a Current Asset any accounts receivable arising from Leased Subscriber Equipment. Purchaser may, by providing Seller with written notice at least five (5) days prior to Following the Closing, elect the Company shall engage Deloitte & Touche to purchase allcomplete an audit for FY 1999, or certain of, the DSS(TM) subscriber equipment owned by Seller (other than Leased Subscriber Equipment) on the Closing Dateincluding a determination of FY 1999 EBITDA; provided, however, Purchaser shall not have the right to acquire any assets attributable to Seller's Electric Business. Any such equipment which is purchased by Purchaser shall be included as Inventory in the Closing Date Balance Sheet. Except as set forth in this Section 4.4(b), no other assets or liabilities shall be included in the Closing Date Balance Sheet. Seller shall make available to Purchaser such documentation, back-up, invoices, and books and records of Seller as Purchaser may reasonably request.
(c) Seller and Purchaser shall negotiate in good faith to reconcile any discrepancies which may arise in connection with the determination of the Closing Date Balance Sheet. If Seller and Purchaser are unable to reconcile such discrepancies, Seller shall have fifteen (15) days from presentment of the Closing Date Balance Sheet by Purchaser to notify Purchaser if Seller wishes to have Purchaser's determination examined. If Seller elects to have Purchaser's determination examined, it shall be submitted to the determination in Atlanta, Georgia, by the Certified Public Accounting firm of KMPG Peat Marwick (or any other independent Certified Public Accounting firm mutually acceptable to Seller and Purchaser), that the cost of such examination audit shall be excluded from EBITDA calculations but only to the extent that the cost of such Deloitte & Touche audit exceeds the cost of a comparable audit by KPMG LLP and only to the extent of the excess. The Purchase Price will be subject to the following adjustments, based on the difference between 1999 EBITDA and $4,400,000 (the "1999 EBITDA Estimate"):
(i) if 1999 EBITDA exceeds the 1999 EBITDA Estimate, the Purchase Price will be increased by the product of 6.50 and the amount by which 1999 EBITDA exceeds the 1999 ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇;
(ii) if the 1999 EBITDA Estimate exceeds 1999 EBITDA, the Purchase Price will be decreased by the product of 6.50 and the amount by which the 1999 EBITDA Estimate exceeds 1999 ▇▇▇▇▇▇; ▇▇d
(iii) if the 1999 EBITDA Estimate equals 1999 EBITDA, the Purchase Price will not be adjusted pursuant to this Section 2.3(a).
(iv) any increase to the Purchase Price as a result of an adjustment under this Section 2.3(a) shall be paid fifty percent upon the earlier of (50%A) by Seller forty-five (45) days after delivery of the Closing Balance Sheet and fifty percent audited statements of income and cash flow for FY 1999 or (50%B) by Purchaser. The determination by Purchaser resolution of the procedures set forth in Section 2.3(c);
(v) any decrease to the Purchase Price as a result of an adjustment under this Section 2.3(a) shall be final and binding on offset against any Earnout Amount; provided, however, that in the parties unless Seller elects to have an examination as provided hereinevent no Earnout Amount is due, in which case Sellers shall pay the results amount of the examination shall be made downward adjustment to the Purchase Price to Purchaser within thirty (30) days of delivery of the audited balance sheet for FY 2001 and audited statements of income and cash flow for FY 2001.
(b) Following the Closing, the Company shall engage Deloitte & Touche to complete an audit of the Net Worth as of December 31, 1999; provided, however, that the cost of such referral, and audit shall be final and binding excluded from Net Worth calculations. The Purchase Price will be subject to the following adjustments, based on the parties difference between the Net Worth as of December 31, 1999 and the Minimum Net Worth:
(i) if the "Final Closing Adjustment"Net Worth exceeds the Minimum Net Worth, the Purchase Price will be increased by a dollar-for-dollar amount equal to the amount by which the Net Worth exceeds the Minimum Net Worth;
(ii) if the Minimum Net Worth exceeds the Net Worth, the Purchase Price will be decreased by a dollar-for-dollar amount equal to the amount by which the Minimum Net Worth exceeds the Net Worth; and
(iii) if the Minimum Net Worth equals the Net Worth, the Purchase Price will not be adjusted pursuant to this Section 2.3(b).
(div) To any increase or decrease to the extent Purchase Price as a result of an adjustment under this Section 2.3(b) shall be paid upon the Final Closing Adjustment is less than earlier of (A) forty-five (45) days after delivery of the Closing AdjustmentBalance Sheet and audited statements of income and cash flow for FY 1999 or (B) resolution of the procedures set forth in Section 2.3(c);
(c) If Sellers disagree with Purchaser's determination of the 1999 EBITDA and/or Net Worth as of December 31, Seller 1999, the Sellers' Representative shall pay represent Sellers in any such disagreement and the difference in cash following procedure shall be employed:
(i) Sellers' Representative shall have until forty five (45) days after Purchaser's determination of the 1999 EBITDA and the Net Worth (the "Verification Period") to verify Purchaser's determination of 1999 EBITDA and the Net Worth. During such period, at the request of the Sellers' Representative, Purchaser shall cause the Company to provide such representative back-up financial information and working papers and the like necessary for such verification. Any adjustments to Purchaser's determination shall be made by written notice to Purchaser within five the Verification Period (5) days after the final determination. In the event the Final Closing an "Adjustment is greater than the Closing Adjustment, Purchaser shall pay such excess in cash to Seller within five (5) days after the final determination. If, following any payment pursuant to this Section 4.4(dNotice"), an error setting forth (in billing or reporting by NRTC or otherwiseA) is thereafter discovered which would have affected Sellers' objections to Purchaser's determination of the Final Closing Adjustment1999 EBITDA and the Net Worth, (B) Sellers' determination of the party in whose favor 1999 EBITDA and the error was made shall immediately pay in cash Net Worth, and (C) the amount of such error to the other party.proposed Purchase Price
Appears in 1 contract
Sources: Share Purchase Agreement (Uti Corp)
Adjustment to Purchase Price. (a) The Closing Payment shall be increased by the parties' good faith estimate of the Current Assets of Seller and decreased by the parties' good faith estimate of the Current Liabilities of Seller as of the Closing Date (the "Closing Adjustment"), which adjustment shall be subject to final adjustment as provided for in paragraph (c) below.
(b) No later than sixty thirty (6030) days after the Closing Date, or within three (3) days after receipt of the necessary accounting data from the NRTC Central Billing System, whichever is later, Purchaser Buyer shall make prepare and deliver to Seller a Parent (i) an unaudited consolidated balance sheet reflecting of the Current Assets and Current Liabilities of Seller Company as of the Saturday prior to the Closing Date prepared in accordance with GAAP, giving effect for any transactions or operations occurring on or before the Closing Date (the "Closing Date Balance SheetCLOSING BALANCE SHEET"), prepared on (ii) a basis consistent with GAAP. For purposes calculation of (A) Net Working Capital, (B) the Debt Amount, (C) the LTIP Amount, (D) the Capitalized Lease Amount and (E) the Tax Amount, in each case as of the Closing Adjustment Date and (iii) a certificate (the Final Closing Adjustment "PURCHASE PRICE CERTIFICATE") setting forth a proposed final Purchase Price subject to the adjustments provided in SECTION 2.2(a) (the "PROPOSED FINAL PURCHASE PRICE") which shall be calculated as hereinafter defined(A) Four Hundred Fifty Million Dollars ($450,000,000), MINUS (B) the amount Working Capital Deficit (if any), PLUS (C) the Net Working Capital Excess (if any), MINUS (D) the Debt Amount, MINUS (E) the LTIP Amount, MINUS (F) the Capitalized Lease Amount, MINUS (G) the Tax Amount. Buyer will furnish and cause the Company to furnish to Parent and its advisors access (and if requested, copies) of Accounts Receivable such documents, financial records, work papers, financial management personnel and other information as Parent may request that are available to or obtainable by Buyer or the Company and reasonably deemed relevant by Parent to the preparation of Seller to be included in the Closing Date Balance Sheet shall include only Accounts Receivable of Subscribers as reflected on Report 18A and Purchase Price Certificate. If within thirty (Subscriber Accounts Receivable Aging By Account30) days following delivery of the NRTC Central Billing System Reports less a reserve of six percent (6%) for Accounts Receivable which are not collectible. In addition, the Closing Date Balance Sheet and the Final Closing Adjustment shall Purchase Price Certificate, Parent has not include as a Current Asset any accounts receivable arising from Leased Subscriber Equipment. Purchaser may, by providing Seller with given Buyer written notice at least five of its objection thereto (5) days prior such notice must contain a statement of the basis of Parent's objection), then Parent shall be deemed to have accepted and agreed to the ClosingClosing Balance Sheet and the Purchase Price Certificate, elect and the Proposed Final Purchase Price shall be deemed to purchase allbe the Purchase Price as required to be adjusted per SECTION 2.2(a). If Parent gives such notice of objection, or certain of, the DSS(TM) subscriber equipment owned by Seller (then Buyer and Parent shall cooperate with each other than Leased Subscriber Equipment) in an effort to come to an agreement on the Closing Date; provided, however, Purchaser shall not have the right to acquire any assets attributable to Seller's Electric Business. Any such equipment matters which is purchased by Purchaser shall be included as Inventory are in the Closing Date Balance Sheet. Except as set forth in this Section 4.4(b), no other assets or liabilities shall be included in the Closing Date Balance Sheet. Seller shall make available to Purchaser such documentation, back-up, invoices, and books and records of Seller as Purchaser may reasonably request.
(c) Seller and Purchaser shall negotiate in good faith to reconcile any discrepancies which may arise in connection with the determination of the Closing Date Balance Sheetdispute. If Seller and Purchaser are unable to reconcile such discrepancies, Seller shall have fifteen (15) days from presentment of the Closing Date Balance Sheet by Purchaser to notify Purchaser if Seller wishes to have Purchaser's determination examined. If Seller elects to have Purchaser's determination examined, it shall dispute cannot be submitted to the determination in Atlanta, Georgia, by the Certified Public Accounting firm of KMPG Peat Marwick (or any other independent Certified Public Accounting firm mutually acceptable to Seller and Purchaser), the cost of such examination to be paid fifty percent (50%) by Seller and fifty percent (50%) by Purchaser. The determination by Purchaser shall be final and binding on the parties unless Seller elects to have an examination as provided herein, in which case the results of the examination shall be made resolved within thirty (30) days of Buyer's receipt of Parent's notice of objection, then the issues in dispute will be submitted to the Accountants for resolution. If issues in dispute are submitted to the Accountants for resolution, (i) each party will be afforded the opportunity to present to the Accountants any material relating to the determination and to discuss the determination with the Accountants; (ii) the determination by the Accountants, as set forth in a notice delivered to both parties by the Accountants, will be binding and conclusive on the parties; and (iii) Buyer and Parent will each bear one-half (1/2) of the fees and expenses of the Accountants for such referral, and determination. The Final Purchase Price shall be final and binding on the parties (the "Final Closing Adjustment").
(d) To the extent the Final Closing Adjustment is less than the Closing Adjustment, Seller shall pay the difference in cash deemed to Purchaser within five (5) days after be the final determination. In the event the Final Closing Adjustment is greater than the Closing Adjustment, Purchaser shall pay such excess in cash Purchase Price (subject to Seller within five (5) days after the final determination. If, following any payment and as required to be adjusted pursuant to SECTION 2.2(a)) determined in accordance with this Section 4.4(dSECTION 2.2(d), an error (in billing or reporting whether by NRTC or otherwise) is thereafter discovered which would have affected the Final Closing Adjustment, the party in whose favor the error was made shall immediately pay in cash the amount failure of such error Parent to provide a notice of objection to the other partyProposed Final Purchase Price, by resolution of all disputes by Buyer and Parent or by determination of the Accountants.
Appears in 1 contract
Adjustment to Purchase Price. (a) The Closing Payment Purchase Price shall be increased by or reduced as set forth in Section 2.6(f) hereof. Any increase or decrease in the parties' good faith estimate of the Current Assets of Seller and decreased by the parties' good faith estimate of the Current Liabilities of Seller as of the Closing Date (the "Closing Adjustment"), which adjustment Purchase Price pursuant to this Section 2.6 shall be subject referred to final adjustment as provided for in paragraph (c) belowa “Purchase Price Adjustment.”
(b) No later than sixty (60) Within 60 days after the Closing Date, or within three (3) days after receipt of the necessary accounting data from the NRTC Central Billing System, whichever is later, Purchaser Buyer shall make prepare and deliver to Seller a balance sheet reflecting the Current Assets and Current Liabilities of Seller as of the Closing Date statement (the "Closing Date Balance Sheet"“Preliminary Adjustment Statement”), prepared on a basis consistent which sets forth Buyer’s calculation of Closing Cash, Excess Company Indebtedness, Net Working Capital (calculated in accordance with GAAP. For purposes of the Closing Adjustment Working Capital Guidelines) and the Final Closing Adjustment (as hereinafter defined)Net Working Capital Deficit, the amount of Accounts Receivable of Seller to be included in the Closing Date Balance Sheet shall include only Accounts Receivable of Subscribers as reflected on Report 18A (Subscriber Accounts Receivable Aging By Account) of the NRTC Central Billing System Reports less a reserve of six percent (6%) for Accounts Receivable which are not collectible. In addition, the Closing Date Balance Sheet and the Final Closing Adjustment shall not include as a Current Asset any accounts receivable arising from Leased Subscriber Equipment. Purchaser may, by providing Seller with written notice at least five (5) days prior to the Closing, elect to purchase allif any, or certain ofthe Net Working Capital Surplus, the DSS(TM) subscriber equipment owned by Seller (other than Leased Subscriber Equipment) on the Closing Date; provided, however, Purchaser shall not have the right to acquire any assets attributable to Seller's Electric Business. Any such equipment which is purchased by Purchaser shall be included as Inventory in the Closing Date Balance Sheet. Except as set forth in this Section 4.4(b), no other assets or liabilities shall be included in the Closing Date Balance Sheet. Seller shall make available to Purchaser such documentation, back-up, invoices, and books and records of Seller as Purchaser may reasonably requestif any.
(c) Seller shall have a period of 30 days after the date Seller receives the Preliminary Adjustment Statement from Buyer to deliver to Buyer written notice of Seller’s disagreement with any item contained in the Preliminary Adjustment Statement, which notice shall set forth in reasonable detail the basis for such disagreement (a “Notice of Disagreement”). During the 30day period following Seller’s receipt of the Preliminary Adjustment Statement, Buyer shall (i) permit Seller and Purchaser its accountants to consult with Buyer’s accountants and (ii) provide to Seller and its accountants reasonable access during reasonable hours and under reasonable circumstances to all relevant books and records and any work papers relating to the preparation of the Preliminary Adjustment Statement, in each case as reasonably requested by Seller in connection with Seller’s review of the Preliminary Adjustment Statement. During the 15 days following Buyer’s receipt of a Notice of Disagreement, if any, Buyer and Seller shall negotiate seek in good faith to reconcile resolve in writing any discrepancies differences which may arise they have with respect to the matters specified in connection the Notice of Disagreement, and upon such resolution, the Final Adjustment Statement shall be prepared in accordance with the determination agreement of the Closing Date Balance Sheet. If Seller Buyer and Purchaser are unable to reconcile such discrepancies, Seller shall have fifteen (15) days from presentment of the Closing Date Balance Sheet by Purchaser to notify Purchaser if Seller wishes to have Purchaser's determination examined. If Seller elects to have Purchaser's determination examined, it shall be submitted to the determination in Atlanta, Georgia, by the Certified Public Accounting firm of KMPG Peat Marwick (or any other independent Certified Public Accounting firm mutually acceptable to Seller and Purchaser), the cost of such examination to be paid fifty percent (50%) by Seller and fifty percent (50%) by Purchaser. The determination by Purchaser shall be final and binding on the parties unless Seller elects to have an examination as provided herein, in which case the results of the examination shall be made within thirty (30) days of such referral, and shall be final and binding on the parties (the "Final Closing Adjustment")Seller.
(d) To If Buyer and Seller are unable to resolve any disputed items set forth in the extent Notice of Disagreement within 15 days following Buyer’s receipt of such Notice of Disagreement (or such longer period as Buyer and Seller shall mutually agree in writing), such dispute shall be submitted to, and all unresolved issues having a bearing on such dispute shall be resolved by, (i) Deloitte LLP or (ii) in the Final event such accounting firm is unable or unwilling to take such assignment, a nationally recognized accounting firm mutually agreed upon by Buyer and Seller or, if Buyer and Seller cannot agree on an accounting firm within 30 days after timely delivery of a Notice of Disagreement (or such longer period as Buyer and Seller shall mutually agree in writing), each of Buyer and Seller shall select a nationally recognized accounting firm and such two accounting firms shall designate a third nationally recognized accounting firm that neither presently is, nor in the past two years has been, engaged by either such Party. Deloitte LLP, the accounting firm so agreed to by Buyer and Seller or the third accounting firm so selected by the two accounting firms is hereinafter referred to as the “Accounting Firm.” Buyer and Seller shall submit to the Accounting Firm for review and resolution all matters (but only such matters) that are set forth in the Notice of Disagreement which remain in dispute. Buyer and Seller shall instruct the Accounting Firm to select one of its partners experienced in purchase price adjustment disputes to make a final determination of, as applicable, Closing Adjustment Cash, Excess Company Indebtedness, Net Working Capital and the Net Working Capital Deficit, if any, or the Net Working Capital Surplus, if any, based solely on the items that are in dispute as set forth in the Notice of Disagreement. Buyer and Seller shall instruct the Accounting Firm that, in resolving the items in the Notice of Disagreement that are still in dispute and in determining, as applicable, Closing Cash, Excess Company Indebtedness, Net Working Capital and the Net Working Capital Deficit, if any, or the Net Working Capital Surplus, if any, the Accounting Firm shall (A) not assign to any item in dispute a value that is (1) greater than the greatest value for such item assigned by Buyer, on the one hand, or Seller, on the other hand or (2) less than the Closing Adjustmentsmallest value for such item assigned by Buyer, on the one hand, or Seller, on the other hand, (B) make its determination based on an independent review (which will be in accordance with the guidelines and procedures set forth in this Agreement) and, if requested by Buyer or Seller, a one (1)-day conference concerning the dispute, at which conference each of Buyer and Seller shall pay have the difference right to present their respective positions with respect to the dispute and have present their respective advisors, counsel and accountants, (C) render a final resolution in cash writing to Purchaser within five Buyer and Seller (5which final resolution shall be requested by Buyer and Seller to be delivered not more than 30 days following submission of such disputed matters), which shall be final, conclusive and binding on the Parties with respect to Closing Cash, Excess Company Indebtedness, Net Working Capital and the Net Working Capital Deficit, if any, or Net Working Capital Surplus, if any, as applicable, and (D) days after provide a written report to Buyer and Seller, if requested by either of them, which sets forth in reasonable detail the basis for the Accounting Firm’s final determination. In The fees and expenses of the event Accounting Firm shall be allocated between Buyer, on the one hand, and Seller, on the other hand, based upon the percentage by which the portion of the contested amount not awarded to each of Buyer and Seller bears to the amount actually contested by such Party. For example, should the items in dispute total an amount equal to $1,000 and should the Accounting Firm award $600 in favor of Seller’s position, 60% of the costs of its review would be borne by Buyer and 40% of the costs would be borne by Seller.
(e) The Preliminary Adjustment Statement shall be deemed final for the purposes of this Section 2.6 upon the earliest of (i) Seller’s written acceptance of the Preliminary Adjustment Statement as final, (ii) the failure of Seller to notify Buyer of a dispute within 30 days after Seller receives the Preliminary Adjustment Statement, (iii) the resolution of all disputes, pursuant to Section 2.6(c), by Buyer and Seller and (iv) the resolution of all disputes, pursuant to Section 2.6(d), by the Accounting Firm. The Preliminary Adjustment Statement, as finalized in accordance with this Section 2.6, is referred to herein as the “Final Adjustment Statement.”
(f) Within 10 days following the determination of the Final Closing Adjustment is greater than Statement in accordance with Section 2.6(e):
(i) If the Closing Adjustment, Purchaser shall pay such excess in cash to Seller within five (5) days after the final determination. If, following any payment Final Adjustment Amount as finally determined pursuant to this Section 4.4(d)2.6 is a negative number, an error then Buyer shall be entitled to (in billing or reporting by NRTC or otherwiseA) is thereafter discovered which would have affected first, recover such amount from the Adjustment Escrow Fund, and (B) second, if the absolute value of the Final Closing AdjustmentAdjustment Amount exceeds the amount in the Adjustment Escrow Fund, offset at the party in whose favor the error was made shall immediately pay in cash Offset Ratio such Final Adjustment Amount against the amount of such error Post-Closing Services provided to Seller under the Services Agreement. In accordance with the foregoing clause “(A),” Seller and Buyer shall promptly deliver a joint written instruction to the other partyAdjustment Escrow Agent instructing it to release (A) to Buyer or its designee, from the Adjustment Escrow Fund, an amount equal to the lesser of (i) the absolute value of the Final Adjustment Amount, if any or (ii) the Adjustment Escrow Fund and (B) if an amount remains in the Adjustment Escrow Fund after giving effect to the foregoing clause “(A),” the remaining amount of the Adjustment Escrow Fund to Seller.
(ii) If the Final Adjustment Amount as finally determined pursuant to this Section 2.6 is a positive number, then (A) Seller and Buyer shall promptly deliver a joint written instruction to the Adjustment Escrow Agent instructing it to release the Adjustment Escrow Fund to Seller, and (B) within 90 days following the determination of the Final Adjustment Statement, Buyer shall also pay to Seller the amount of the Final Adjustment Amount.
(g) All payments required under this Section 2.6 shall be made in cash by wire transfer of immediately available funds to such bank account(s) as shall be designated in writing by the recipient(s) at least three Business Days prior to the applicable payment date.
(h) Any payments by Buyer or Seller required under this Section 2.6 shall be treated as an adjustment to the Purchase Price for U.S. federal income tax purposes.
Appears in 1 contract
Sources: Purchase Agreement (Nextier Oilfield Solutions Inc.)
Adjustment to Purchase Price. (ai) The Closing Payment shall be increased by the parties' good faith estimate of the Current Assets of Seller and decreased by the parties' good faith estimate of the Current Liabilities of Seller as of the Closing Date (the "Closing Adjustment"), which adjustment shall be subject to final adjustment as provided for in paragraph (c) below.
(b) No later than sixty (60) Within 60 days after the Closing Date, or within three (3) days after receipt of the necessary accounting data from the NRTC Central Billing System, whichever is later, Purchaser shall make Seller will prepare and deliver to Seller the Buyer (A) a draft consolidated balance sheet reflecting (the Current "DRAFT CLOSING DATE BALANCE SHEET") for the Acquired Assets and Current the Assumed Liabilities of Seller as of the close of business on the Closing Date, and (B) a computation and determination of the Adjusted Purchase Price in accordance with the provisions of this Section 2(g). The Seller will prepare the Draft Closing Date Balance Sheet in accordance with GAAP.
(ii) If the "Buyer has any objections to the Draft Closing Date Balance Sheet"), prepared on it will deliver a basis consistent with GAAP. For purposes of the Closing Adjustment and the Final Closing Adjustment (as hereinafter defined), the amount of Accounts Receivable of Seller to be included in the Closing Date Balance Sheet shall include only Accounts Receivable of Subscribers as reflected on Report 18A (Subscriber Accounts Receivable Aging By Account) of the NRTC Central Billing System Reports less a reserve of six percent (6%) for Accounts Receivable which are not collectible. In addition, the Closing Date Balance Sheet and the Final Closing Adjustment shall not include as a Current Asset any accounts receivable arising from Leased Subscriber Equipment. Purchaser may, by providing Seller with written notice at least five (5) days prior detailed statement describing its objections to the Closing, elect to purchase all, or certain of, Buyer within 30 days after receiving the DSS(TM) subscriber equipment owned by Seller (other than Leased Subscriber Equipment) on the Closing Date; provided, however, Purchaser shall not have the right to acquire any assets attributable to Seller's Electric Business. Any such equipment which is purchased by Purchaser shall be included as Inventory in the Draft Closing Date Balance Sheet. Except as The Buyer and the Seller will use reasonable efforts to resolve any such objections themselves. If the Parties do not obtain a final resolution within 30 days after the Seller has received the statement of objections, however, the Buyer and the Seller will select an accounting firm mutually acceptable to them to resolve any remaining objections. If the Buyer and the Seller are unable to agree on the choice of an accounting firm, they will select a nationally recognized accounting firm by lot (the "ACCOUNTANT"), which shall be jointly instructed by the Buyer and the Seller to determine the Stockholder Equity and the Adjusted Purchase Price. The Accountant shall deliver to each of the Buyer and Seller its determinations within 30 days after receiving the joint instructions from the Buyer and the Seller, and the determinations of the Accountant shall be set forth in this Section 4.4(b), no other assets or liabilities writing and will be conclusive and binding upon the Parties. The expenses of the Accountant shall be included in borne equally by the Buyer and the Seller. The Seller will give the Buyer the Draft Closing Date Balance Sheet, revised to reflect the Accountant's determinations. Seller The "CLOSING DATE BALANCE SHEET" shall make available mean the Draft Closing Date Balance Sheet, together with any revisions thereto pursuant to Purchaser such documentationthis Section 2(g)(ii), back-up, invoices, and books and records of Seller as Purchaser may reasonably request.
(c) Seller and Purchaser shall negotiate in good faith to reconcile any discrepancies which may arise in connection with including the determination of the Closing Date Balance SheetAccountant. If Seller and Purchaser are unable to reconcile such discrepancies, Seller shall have fifteen (15) days from presentment of the Closing Date Balance Sheet by Purchaser to notify Purchaser if Seller wishes to have Purchaser's determination examined. If Seller elects to have Purchaser's determination examined, it shall be submitted to the determination in Atlanta, Georgia, by the Certified Public Accounting firm of KMPG Peat Marwick (or any other independent Certified Public Accounting firm mutually acceptable to Seller and Purchaser), the cost of such examination to be paid fifty percent (50%) by Seller and fifty percent (50%) by Purchaser. The determination by Purchaser shall be final and binding on the parties unless Seller elects to have an examination as provided herein, in which case the results of the examination shall be made within thirty (30) days of such referral, and shall be final and binding on the parties (the "Final Closing Adjustment").
(d) To the extent the Final Closing Adjustment is less than the Closing Adjustment, Seller shall pay the difference in cash to Purchaser within five (5) days after the final determination. In the event the Final Closing Adjustment is greater than the Closing Adjustment, Purchaser shall pay such excess in cash to Seller within five (5) days after the final determination. If, following any payment pursuant to this Section 4.4(d), an error (in billing or reporting by NRTC or otherwise) is thereafter discovered which would have affected the Final Closing Adjustment, the party in whose favor the error was made shall immediately pay in cash the amount of such error to the other party.The
Appears in 1 contract
Sources: Asset Purchase Agreement (U S Industrial Services Inc)
Adjustment to Purchase Price. (a) The Closing Payment shall be increased by the parties' good faith estimate of the Current Assets of Seller and decreased by the parties' good faith estimate of the Current Liabilities of Seller If as of the Closing Adjustment Date the Annualized Gross Revenues from the Transferred Clients is less than the Annualized Gross Revenues as determined in accordance with Section 2.6(a) (any such difference being referred to as the "Closing AdjustmentShortfall Amount"), which adjustment the Purchase Price shall be subject to final adjustment as provided for in paragraph (c) below.
(b) No later than sixty (60) days after reduced by ---------------- the Closing DateShortfall Amount and the Purchaser shall cancel, or within three (3) days after receipt and amend Schedule A of the necessary accounting data from Operating Agreement to reflect the NRTC Central Billing Systemcancellation of, whichever is later, Purchaser shall make and deliver to Seller a balance sheet reflecting the Current Assets and Current Liabilities that number of Seller as of the Closing Date (the "Closing Date Balance Sheet"), prepared on a basis consistent with GAAP. For purposes of the Closing Adjustment and the Final Closing Adjustment (as hereinafter defined), the amount of Accounts Receivable of Seller to be included in the Closing Date Balance Sheet shall include only Accounts Receivable of Subscribers as reflected on Report 18A (Subscriber Accounts Receivable Aging By Account) of the NRTC Central Billing System Reports less a reserve of six percent (6%) for Accounts Receivable which are not collectible. In addition, the Closing Date Balance Sheet and the Final Closing Adjustment shall not include as a Current Asset any accounts receivable arising from Leased Subscriber Equipment. Purchaser may, by providing Seller with written notice at least five (5) days prior LLC Shares issued to the ClosingCompany or its Permitted Transferee pursuant to Section 2.6 of this Agreement that, elect to purchase allwhen valued at $1,000 per LLC Share, or certain of, equal the DSS(TM) subscriber equipment owned by Seller (other than Leased Subscriber Equipment) on the Closing DateShortfall Amount; provided, however, that the Company or its Permitted Transferee may, -------- ------- within ten (10) Business Days after final determination of a Shortfall Amount as provided in Section 2.9(b), contribute to Purchaser cash in any amount up to, but not exceeding, the Shortfall Amount. If the Company or its Permitted Transferee so contribute cash to Purchaser, then the Shortfall Amount shall be reduced by the amount of cash contributed and the number of LLC Shares to be cancelled shall be reduced by the result of the amount of cash contributed divided by $1,000. ----------
(b) Within thirty (30) days after the Adjustment Date, the Purchaser shall deliver to the Company or, if applicable, its Permitted Transferee, the calculation of the Shortfall Amount. For the purpose of confirming the accuracy of such calculation, the Company or its Permitted Transferee and their accountants shall have access, at all reasonable times and in a manner not disruptive of the ongoing operations of Purchaser or its Affiliates, to the Books and Records of Purchaser relating to such calculation. The Company or its Permitted Transferee and their accountants shall have the right to acquire any assets attributable to Seller's Electric Businessreview the work papers of Purchaser utilized in preparing such calculations. Any such equipment which is purchased by Purchaser shall be included as Inventory in If the Closing Date Balance Sheet. Except as set forth in this Section 4.4(b), no other assets Company or liabilities shall be included in the Closing Date Balance Sheet. Seller shall make available to Purchaser such documentation, back-up, invoices, and books and records of Seller as Purchaser may reasonably request.
(c) Seller and Purchaser shall negotiate in good faith to reconcile any discrepancies which may arise in connection its Permitted Transferee disagrees with the determination of the Closing Date Balance Sheet. If Seller and Purchaser are unable to reconcile such discrepancies, Seller shall have fifteen (15) days from presentment of the Closing Date Balance Sheet by Purchaser to notify Purchaser if Seller wishes to have Purchaser's determination examined. If Seller elects to have Purchaser's determination examined, it shall be submitted to the determination in Atlanta, Georgia, by the Certified Public Accounting firm of KMPG Peat Marwick (or any other independent Certified Public Accounting firm mutually acceptable to Seller and Purchaser)calculations, the cost of such examination to be paid fifty percent (50%) by Seller and fifty percent (50%) by Purchaser. The determination by Company or its Permitted Transferee shall notify the Purchaser shall be final and binding on the parties unless Seller elects to have an examination as provided herein, in which case the results of the examination shall be made writing within thirty (30) days of such referraldelivery of the Purchaser's calculations, and the two parties shall attempt in good faith to resolve the dispute as expeditiously as possible. If the dispute cannot be resolved by the Purchaser and the Company or its Permitted Transferee within thirty (30) days of receipt by the Purchaser of written notice of the dispute, such dispute shall be final submitted for resolution to a firm of accountants mutually agreed by the parties, which firm shall not be the accountants for any of the Purchaser, Company, Unified, DNB Acquisition Corp. or any of their Affiliates (the "Independent Accountants"). If the parties are unable to agree on Independent ----------------------- Accountants within ten (10) days of receipt by the Purchaser of written notice of the dispute, then on the request of any party a CPR Institute neutral (who shall be mutually acceptable to the parties) shall appoint the Independent Accountants. The decision of the Independent Accountants (which shall be made solely on the basis of the presentations of Purchaser and the Company or its Permitted Transferee and not on the basis of any independent review) shall be binding on the parties parties, absent manifest error, and may be enforced by any court having jurisdiction. No party shall have any ex parte contacts or communications -- ----- with the Independent Accountants. The cost of the Independent Accountants shall be borne equally by Purchaser and the Company or its Permitted Transferee, unless the Independent Accountants accept without modification (x) the "Final Closing Adjustment"calculation of the Shortfall Amount of the Company or its Permitted Transferee, or (y) the Purchaser's calculation of the Shortfall Amount. In the case of clause (x) above, the Purchaser shall pay the full cost of the Independent Accountants and in the case of clause (y) above, the Company or its Permitted Transferee shall pay the full cost of the Independent Accountants.
(c) Any cancellations of LLC Shares shall be made no earlier than eleven (11) and no later than twenty (20) Business Days after (i) the Company's or its Permitted Transferee's acceptance of the calculation (and any failure of the Company or its Permitted Transferee to deliver a notice of dispute within the time specified in this Section 2.9(b) shall be deemed an acceptance), or (ii) in the event of a dispute, resolution of the dispute as provided in this Section 2.9.
(d) To the extent the Final Closing Adjustment is less than the Closing Adjustment, Seller The parties shall pay the difference in cash to Purchaser within five (5) days after the final determination. In the event the Final Closing Adjustment is greater than the Closing Adjustment, Purchaser shall pay such excess in cash to Seller within five (5) days after the final determination. If, following treat any payment cancellations or payments made pursuant to this Section 4.4(d)2.9 as an adjustment to Purchase Price for all purposes.
(e) Notwithstanding anything herein that may be construed to the contrary, an error if a "Shortfall Amount" as defined in the DNB Purchase Agreement shall also exist as of the Adjustment Date, then for purposes of the additional cash capital contribution described in this Section 2.9: (in billing or reporting by NRTC or otherwisei) is thereafter discovered which would have affected the Final Closing Adjustment, Shortfall Amounts under this Agreement and the DNB Purchase Agreement shall be netted against one another; (ii) only the party or parties having the greater Shortfall Amount may make additional cash contributions; and (iii) such party or parties may only make additional cash contributions in whose favor an amount not to exceed in the error was made shall immediately pay in cash aggregate the amount of such error to difference between the other partytwo Shortfall Amounts.
Appears in 1 contract
Sources: Asset Contribution Agreement (Unified Financial Services Inc)
Adjustment to Purchase Price. (a) The Closing Payment shall be increased As promptly as practicable after the publication in the Official Gazette of the Supreme Decree of the Ministerio de Economía, Fomento y Reconstrucción referred to in Article 71-20 of the Electricity Act of 1982 (as amended by the parties' good faith estimate of the Current Assets of Seller Short Law) but in no event more than 30 days after such publication, Sellers shall prepare or cause to be prepared and decreased by the parties' good faith estimate of the Current Liabilities of Seller as of the Closing Date shall deliver to Purchaser a reasonably detailed statement (the "Closing Adjustment"), which adjustment shall be subject “VI Adjustment Sellers Statement”) and all relevant documentation setting forth the amount obtained by multiplying (A) the difference between (y) the VI attributable to final adjustment the Regulated Trunk Transmission Assets under the 2006 Trunk Transmission Study as provided for in paragraph Schedule 1.7 and (cz) below.
the VI attributable to the Regulated Trunk Transmission Assets indicated in Schedule 1.7 by (bB) No later than sixty 1.45 (60) days the “VI Adjustment”). Sellers will prepare the VI Adjustment Sellers Statement substantially in the form set out in Schedule 1.7. Unless, within 15 Business Days after the Closing Date, or within three (3) days after its receipt of the necessary accounting data from the NRTC Central Billing System, whichever is laterVI Adjustment Sellers Statement, Purchaser shall make and deliver delivers to Seller Sellers a balance sheet reflecting reasonably detailed statement describing Purchaser’s objections to the Current Assets and Current Liabilities VI Adjustment Sellers Statement (a “VI Adjustment Statement of Seller as of the Closing Date (the "Closing Date Balance Sheet"), prepared on a basis consistent with GAAP. For purposes of the Closing Adjustment and the Final Closing Adjustment (as hereinafter definedObjection”), the amount of Accounts Receivable of Seller to be included in the Closing Date Balance Sheet shall include only Accounts Receivable of Subscribers as reflected on Report 18A (Subscriber Accounts Receivable Aging By Account) of the NRTC Central Billing System Reports less a reserve of six percent (6%) for Accounts Receivable which are not collectible. In addition, the Closing Date Balance Sheet and the Final Closing VI Adjustment shall not include as a Current Asset any accounts receivable arising from Leased Subscriber Equipment. Purchaser may, by providing Seller with written notice at least five (5) days prior to the Closing, elect to purchase all, or certain of, the DSS(TM) subscriber equipment owned by Seller (other than Leased Subscriber Equipment) on the Closing Date; provided, however, Purchaser shall not have the right to acquire any assets attributable to Seller's Electric Business. Any such equipment which is purchased by Purchaser shall be included as Inventory in the Closing Date Balance Sheet. Except as set forth in this Section 4.4(b), no other assets or liabilities shall be included in the Closing Date Balance Sheet. Seller shall make available to Purchaser such documentation, back-up, invoices, and books and records of Seller as Purchaser may reasonably request.
(c) Seller and Purchaser shall negotiate in good faith to reconcile any discrepancies which may arise in connection with the determination of the Closing Date Balance Sheet. If Seller and Purchaser are unable to reconcile such discrepancies, Seller shall have fifteen (15) days from presentment of the Closing Date Balance Sheet by Purchaser to notify Purchaser if Seller wishes to have Purchaser's determination examined. If Seller elects to have Purchaser's determination examined, it shall be submitted to the determination in Atlanta, Georgia, by the Certified Public Accounting firm of KMPG Peat Marwick (or any other independent Certified Public Accounting firm mutually acceptable to Seller and Purchaser), the cost of such examination to be paid fifty percent (50%) by Seller and fifty percent (50%) by Purchaser. The determination by Purchaser shall be final and binding on the parties unless Seller elects to have an examination as provided herein, in which case Parties and the results of the examination VI Adjustment Sellers Statement shall be made within thirty the final statement hereunder (30the “VI Adjustment Statement”).
(b) days If Purchaser has delivered to Sellers a timely VI Adjustment Statement of Objection, Purchaser and Sellers shall negotiate in good faith and use commercially reasonable efforts to resolve any disputes. If a resolution is reached, such referral, and resolution shall be final and binding on the parties Parties. If a final resolution is not reached within 15 Business Days after Purchaser has submitted a VI Adjustment Statement of Objection, any remaining disputes shall be resolved by the Auditors. The Auditors shall be instructed to resolve any matters in dispute as promptly as practicable, but in no event more than 10 Business Days after submission, and set forth their resolution in a statement setting forth the VI Adjustment (the "Final Closing Adjustment"“VI Adjustment Accountant Statement”). In such event, the determination of the Auditors shall be final and binding on the Parties and the VI Adjustment Accountant Statement shall be the VI Adjustment Statement.
(c) In the event that the difference between the VI Adjustment determined by the Auditors as set forth on the VI Adjustment Accountant Statement and the VI Adjustment as set forth in the VI Adjustment Sellers Statement is more than 10%, then all fees and expenses of the Auditors shall be borne by Sellers; otherwise all fees and expenses of the Auditors shall be borne by Purchaser. Purchaser and Sellers shall cooperate with each other and the Auditors in connection with the matters contemplated by this Section 1.7, including Sellers’ preparation of and Purchaser review of the VI Adjustment Sellers Statement, including by furnishing such information and access to books, records (including accountants’ work papers), personnel and properties as may be reasonably requested.
(d) To The Purchase Price shall be (I) increased by an amount equal to 92% of the extent the Final Closing Adjustment is less than the Closing VI Adjustment, Seller shall pay if such amount is positive, or (II) decreased by an amount equal to 92% of the difference VI Adjustment, if such amount is negative (the “VI Adjustment Amount”).
(e) The VI Adjustment Amount must be paid to Sellers (rateably in cash to Purchaser accordance with the allocation of the Purchase Price hereunder) or Purchaser, as the case may be, within five (5) days Business Days after the date the VI Adjustment Statement becomes final determination. In and binding on the event Parties.
(f) For purposes of payment of the Final Closing VI Adjustment is greater Amount in accordance with the provisions of this Section 1.7, any amount denominated in a currency other than in United States Dollars shall be converted into United States Dollars based on the Closing Adjustmentexchange rate, Purchaser shall pay such excess in cash to Seller within five (5) days after the final determination. If, following any payment determined pursuant to this Section 4.4(d11.16; provided, however, that if the applicable Party fails to timely pay the VI Adjustment Amount in accordance with Section 1.7(e), an error (in billing or reporting by NRTC or otherwise) then the exchange rate to be applied for purposes of converting such amount into United States Dollars shall be the exchange rate that is thereafter discovered which would have affected the Final Closing Adjustment, the party in whose favor the error was made shall immediately pay in cash the amount of such error most favorable to the other partyrecipient of the VI Adjustment Amount between the exchange rate (i) as at the date payment is due and (ii) as at the date payment is made.
Appears in 1 contract
Sources: Purchase Agreement (Brookfield Infrastructure Partners L.P.)
Adjustment to Purchase Price. (a) The Closing Payment Purchase Price shall be increased by or reduced as set forth in Section 2.8(f) hereof. Any increase or decrease in the parties' good faith estimate of the Current Assets of Seller and decreased by the parties' good faith estimate of the Current Liabilities of Seller as of the Closing Date (the "Closing Adjustment"), which adjustment Purchase Price pursuant to this Section 2.8 shall be subject referred to final adjustment as provided for in paragraph (c) belowa “Purchase Price Adjustment.”
(b) No later than sixty Within forty-five (6045) days after the Closing Date, or within three (3) days after receipt of the necessary accounting data from the NRTC Central Billing System, whichever is later, Purchaser Buyer shall make prepare and deliver to Seller Sellers’ Representative a balance sheet reflecting statement (the Current Assets and Current Liabilities of Seller as “Preliminary Closing Statement”), which sets forth (i) Buyer’s calculation of the Closing Date (the "Closing Date Balance Sheet"), prepared on a basis consistent with GAAP. For purposes of the Closing Adjustment and the Final Closing Adjustment (as hereinafter defined), the amount of Accounts Receivable of Seller to be included in the Closing Date Balance Sheet shall include only Accounts Receivable of Subscribers as reflected on Report 18A (Subscriber Accounts Receivable Aging By Account) of the NRTC Central Billing System Reports less a reserve of six percent (6%) for Accounts Receivable which are not collectible. In addition, the Closing Date Balance Sheet and the Final Closing Adjustment shall not include as a Current Asset any accounts receivable arising from Leased Subscriber Equipment. Purchaser may, by providing Seller with written notice at least five (5) days prior to the Closing, elect to purchase all, or certain of, the DSS(TM) subscriber equipment owned by Seller (other than Leased Subscriber Equipment) on the Closing Date; provided, however, Purchaser shall not have the right to acquire any assets attributable to Seller's Electric Business. Any such equipment which is purchased by Purchaser shall be included as Inventory in the Closing Date Balance Sheet. Except as set forth in this Section 4.4(b), no other assets or liabilities shall be included in the Closing Date Balance Sheet. Seller shall make available to Purchaser such documentation, back-up, invoicesCash, and books and records (ii) the Preliminary Working Capital Schedule, including Buyer’s calculation of Seller as Purchaser may reasonably requestNet Working Capital.
(c) Seller The Sellers’ Representative shall have a period of thirty (30) days after the date it receives the Preliminary Closing Statement from Buyer to deliver to Buyer written notice of the Sellers’ Representative’s disagreement with any item contained in the Preliminary Closing Statement, which notice shall set forth in reasonable detail the basis for such disagreement (a “Notice of Disagreement”). During the thirty (30) day period following the Sellers’ Representative’s receipt of the Preliminary Closing Statement, Buyer shall (i) permit the Sellers’ Representative and Purchaser its accountants to consult with Buyer’s accountants, and (ii) provide to the Sellers’ Representative and its accountants reasonable access during reasonable hours and under reasonable circumstances to all relevant books and records and any work papers (including those of Buyer’s accountants subject to execution of appropriate agreements with Buyer’s accountants) relating to the preparation of the Preliminary Closing Statement, in each case as reasonably requested by the Sellers’ Representative in connection with the Sellers’ Representative’s review of the Preliminary Closing Statement. If a Notice of Disagreement is received by Buyer, then the Preliminary Closing Statement (as revised in accordance with clause (A) or (B) below) shall negotiate become the Final Closing Statement and become final and binding upon the Parties on the earlier of (A) the date on which the Sellers’ Representative and Buyer resolve in writing any differences they have with respect to the matters specified in the Notice of Disagreement and (B) the date all matters in dispute are finally resolved in writing by the Accounting Firm. During the thirty (30) days following Buyer’s receipt of a Notice of Disagreement, Buyer and the Sellers’ Representative shall seek in good faith to reconcile resolve in writing any discrepancies differences which may arise they have with respect to the matters specified in connection the Notice of Disagreement, and upon such resolution, the Final Closing Statement shall be prepared in accordance with the determination agreement of Buyer and the Closing Date Balance Sheet. Sellers’ Representative.
(d) If Seller Buyer and Purchaser the Sellers’ Representative are unable to reconcile such discrepancies, Seller shall have fifteen (15) days from presentment resolve the disputed items set forth in the Notice of the Closing Date Balance Sheet by Purchaser to notify Purchaser if Seller wishes to have Purchaser's determination examined. If Seller elects to have Purchaser's determination examined, it shall be submitted to the determination in Atlanta, Georgia, by the Certified Public Accounting firm of KMPG Peat Marwick (or any other independent Certified Public Accounting firm mutually acceptable to Seller and Purchaser), the cost of such examination to be paid fifty percent (50%) by Seller and fifty percent (50%) by Purchaser. The determination by Purchaser shall be final and binding on the parties unless Seller elects to have an examination as provided herein, in which case the results of the examination shall be made Disagreement within thirty (30) days following Buyer’s receipt of such referralNotice of Disagreement (or such longer period as Buyer and the Sellers’ Representative may mutually agree in writing), following notice of such dispute, such dispute shall be submitted to, and all issues having a bearing on such dispute shall be resolved by, (i) Deloitte & Touche or (ii) in the event such accounting firm is unable or unwilling to take such assignment, a nationally recognized accounting firm mutually agreed upon by Buyer and the Sellers’ Representative or, if Buyer and the Sellers’ Representative cannot agree on an accounting firm within thirty (30) days after timely delivery of a Notice of Disagreement, each of Buyer and the Sellers’ Representative shall select a nationally recognized accounting firm and such two accounting firms shall designate a third nationally recognized accounting firm that neither presently is, nor in the past three years has been, engaged by either Party. Deloitte & Touche, the accounting firm so agreed to by Buyer and the Sellers’ Representative or the third accounting firm so selected by the two accounting firms is hereinafter referred to as the “Accounting Firm.” Buyer and the Sellers’ Representative shall submit to the Accounting Firm for review and resolution all matters (but only such matters) that are set forth in the Notice of Disagreement which remain in dispute. Buyer and the Sellers’ Representative shall instruct the Accounting Firm to select one of its partners experienced in purchase price adjustment disputes to make a final determination of the Closing Date Cash and the Net Working Capital calculated with reference to the items that are in dispute as set forth in the Notice of Disagreement. Buyer and the Sellers’ Representative shall instruct the Accounting Firm that, in resolving the items in the Notice of Disagreement that are still in dispute and in determining the Closing Date Cash and the Net Working Capital, the Accounting Firm shall (i) not assign to any item in dispute a value that is (A) greater than the greatest value for such item assigned by Buyer, on the one hand, or the Sellers’ Representative, on the other hand, or (B) less than the smallest value for such item assigned by Buyer, on the one hand, or the Sellers’ Representative, on the other hand, (ii) make its determination based on an independent review (which will be in accordance with the guidelines and procedures set forth in this Agreement) and at the Accounting Firm’s discretion a one-day conference concerning the dispute, at which conference each of Buyer and the Sellers’ Representative shall have the right to present their respective positions with respect to the dispute and have present their respective advisors, counsel and accountants, (iii) render a final resolution in writing to Buyer and the Sellers’ Representative (which final resolution shall be requested by Buyer and the Sellers’ Representative to be delivered not more than thirty (30) days following submission of such disputed matters to the Accounting Firm), which shall be final, conclusive and binding on the parties Parties with respect to the Closing Date Cash and the Net Working Capital, absent manifest error, and (iv) provide a written report to Buyer and the "Sellers’ Representative, if requested by either of them, which sets forth in reasonable detail the basis for the Accounting Firm’s final determination. The fees and expenses of the Accounting Firm shall be allocated between Buyer, on the one hand, and the Equity Holders based upon their Pro Rata Percentages, on the other hand, based upon the percentage by which the portion of the contested amount not awarded to each of Buyer and the Sellers’ Representative bears to the amount actually contested by such Party.
(e) The Preliminary Closing Statement shall be deemed final for the purposes of this Section 2.8 upon the earliest of (i) the failure of the Sellers’ Representative to notify Buyer of a dispute within thirty (30) days after the Sellers’ Representative receives the Preliminary Closing Statement, (ii) the resolution of all disputes, pursuant to Section 2.8(c), by the Buyer and the Sellers’ Representative and (iii) the resolution of all disputes, pursuant to Section 2.8(d), by the Accounting Firm.
(f) Within five (5) Business Days following the determination of the Final Closing Adjustment"Statement, the Final Cash Balance and the Final Working Capital Schedule in accordance with Section 2.8(c) or Section 2.8(d), as applicable:
(i) If there is a Final Deficit, then Buyer shall be entitled to claim solely from the Escrow Fund an amount equal to such Final Deficit.
(ii) If there is a Final Surplus, then Buyer shall (A) pay to the Sellers’ Representative, on behalf of the Stockholders and the Warrant Holder, an amount equal to such Final Surplus multiplied by the aggregate Pro Rata Percentages of the Stockholders and the Warrant Holder, which the Sellers’ Representative shall distribute to the Stockholders and the Warrant Holder in accordance with their respective Pro Rata Percentages, and (B) pay to the Company, on behalf of the Option Holders, an amount equal to such Final Surplus multiplied by the aggregate Pro Rata Percentages of the Option Holders, which the Company shall distribute to the Option Holders in accordance with their respective Pro Rata Percentages and subject to Section 2.8(h).
(dg) To the extent the Final Closing Adjustment is less than the Closing Adjustment, Seller All payments required under this Section 2.8 shall pay the difference be made in cash by wire transfer of immediately available funds to Purchaser within five such bank account(s) as shall be designated in writing by the recipient(s) at least three (53) days after Business Days prior to the final determination. In the event the Final Closing Adjustment applicable payment date.
(h) Any payment that is greater than the Closing Adjustment, Purchaser shall pay such excess in cash to Seller within five (5) days after the final determination. If, following any payment be made pursuant to this Section 4.4(d)2.8(f)(ii)(B) to an Equity Holder and that is attributable to an Option shall be treated for Tax purposes as a payment, an error (in billing when and if made, of compensation for services and, accordingly, Buyer shall reduce, or reporting shall cause the Company to reduce, each such payment by NRTC or otherwise) is thereafter discovered which would have affected the Final Closing Adjustment, the party in whose favor the error was made shall immediately pay in cash the amount of any required federal, foreign, provincial, state, or local withholding Taxes payable by the Company with respect to such error payment. Buyer shall pay or shall cause the Company to pay such withholding Taxes to the other partyapplicable Governmental Entities as required by Law.
Appears in 1 contract
Adjustment to Purchase Price. (a) The Within 60 days following the Closing Payment Date, Seller shall, at its expense, prepare, or cause to be prepared, and deliver to Acquiror a statement (the "Closing Statement"), which shall be increased by set forth in reasonable detail the parties' good faith estimate amount of the Current Assets of Seller Working Capital and decreased by the parties' good faith estimate of the Current Liabilities of Seller Cash Equivalents as of the Closing Date (Date. The line items included in the "Closing Adjustment"), which adjustment Statement shall be subject to final adjustment as provided for in paragraph (c) below.
(b) No later than sixty (60) days after the Closing Date, or within three (3) days after receipt of the necessary accounting data from the NRTC Central Billing System, whichever is later, Purchaser shall make and deliver to Seller a balance sheet reflecting the Current Assets and Current Liabilities of Seller as of the Closing Date (the "Closing Date Balance Sheet"), prepared on a basis consistent with GAAP. For purposes the line items contained in the Statement of Assets and Liabilities of the Closing Adjustment and the Final Closing Adjustment (Snapple Business as hereinafter defined)of December 31, the amount of Accounts Receivable of Seller to be 1996 included in the Closing Date Balance Sheet shall include only Accounts Receivable of Subscribers as reflected on Report 18A (Subscriber Accounts Receivable Aging By Account) of the NRTC Central Billing System Reports less a reserve of six percent (6%) for Accounts Receivable which are not collectible. In addition, the Closing Date Balance Sheet and the Final Closing Adjustment shall not include as a Current Asset any accounts receivable arising from Leased Subscriber Equipment. Purchaser may, by providing Seller with written notice at least five (5) days prior to the Closing, elect to purchase all, or certain of, the DSS(TM) subscriber equipment owned by Seller (other than Leased Subscriber Equipment) on the Closing DateFinancial Statements; provided, however, Purchaser shall not have that the right trade accounts payable reflected on the Closing Statement shall, to acquire any assets the extent reasonably practicable, reflect the trade accounts NYFS09...:\69\68669\0030\165\AGRN266W.00J payable directly attributable to Sellerthe Snapple Business, consistent with past practice.
(b) Acquiror shall have 30 days to review the Closing Statement and to inform Seller in writing of its disagreement (the "Objection") with the Closing Statement, if any. If Seller does not receive Acquiror's Electric Business. Any Objection within such equipment which is purchased by Purchaser shall be included as Inventory 30-day period, the amount of Working Capital and Cash Equivalents set forth in the Closing Statement delivered pursuant to Section 2.6(a) shall be deemed to have been accepted by Acquiror and shall become binding upon Acquiror. If Acquiror does deliver Acquiror's Objection to Seller, Seller shall then have 30 days to review and respond to Acquiror's Objection. If Seller and Acquiror are unable to resolve all of their disagreements with respect to the determination of Working Capital and Cash Equivalents as of the Closing Date Balance Sheetwithin 10 days following the completion of Seller's review of Acquiror's Objection, they may refer, at the option of either party, their differences to an internationally recognized firm of independent public accountants selected jointly by Seller and Acquiror, who shall, acting as experts and not as arbitrators, determine only with respect to the differences so submitted, whether and to what extent, if any, the amount of Working Capital and Cash Equivalents set forth in the Closing Statement requires adjustment. Except If Seller and Acquiror are unable to so select the independent public accountants within five days of either party requesting such referral, either Acquiror or Seller may thereafter request that the American Arbitration Association make such selection (the firm selected by Seller and Acquiror or by the American Arbitration Association is referred to as the "CPA Firm"). Seller and Acquiror shall direct the CPA Firm to use its best efforts to render its determination within 30 days. The CPA Firm's determination shall be conclusive and binding upon Seller and Acquiror. The fees and disbursements of the CPA Firm shall be shared equally by Seller and Acquiror. Seller and Acquiror shall make readily available to the CPA Firm all relevant books and records relating to the Closing Statement and all other items reasonably requested by the CPA Firm.
(c) If the sum of the amount of Working Capital and Cash Equivalents as of the Closing Date determined in accordance with the procedures set forth in this Section 4.4(b2.6 (the "Final Amount") is less than the sum of the amount of Working Capital and Cash Equivalents set forth in the Estimated Statement (the "Estimated Amount"), no other assets or liabilities shall be included in the Closing Date Balance Sheet. Seller shall make available to Purchaser such documentationshall, back-up, invoices, and books and records of Seller as Purchaser may reasonably request.
(c) Seller and Purchaser shall negotiate in good faith to reconcile any discrepancies which may arise in connection with NYFS09...:\69\68669\0030\165\AGRN266W.00J within 10 days following the determination of the Closing Date Balance Sheet. If Seller Final Amount, pay to Acquiror an amount in cash equal to such difference, and Purchaser are unable to reconcile if the Final Amount is greater than the Estimated Amount, Acquiror shall, within such discrepancies10 days, Seller shall have fifteen (15) days from presentment of the Closing Date Balance Sheet by Purchaser to notify Purchaser if Seller wishes to have Purchaser's determination examined. If Seller elects to have Purchaser's determination examined, it shall be submitted to the determination in Atlanta, Georgia, by the Certified Public Accounting firm of KMPG Peat Marwick (or any other independent Certified Public Accounting firm mutually acceptable pay to Seller and Purchaser), the cost of an amount in cash equal to such examination to be paid fifty percent (50%) by Seller and fifty percent (50%) by Purchaser. The determination by Purchaser shall be final and binding on the parties unless Seller elects to have an examination as provided herein, in which case the results of the examination shall be made within thirty (30) days of such referral, and shall be final and binding on the parties (the "Final Closing Adjustment")difference.
(d) To The amount payable by Seller to Acquiror or from Acquiror to Seller, as the extent case may be, under this Section 2.6 shall bear interest at the Final Closing Adjustment is less than Agreed Rate as in effect from time to time, computed from the Closing Adjustment, Seller shall pay Date to the difference in cash to Purchaser within five (5) days after the final determination. In the event the Final Closing Adjustment is greater than the Closing Adjustment, Purchaser shall pay such excess in cash to Seller within five (5) days after the final determination. If, following any date of payment pursuant to this Section 4.4(d), an error (in billing or reporting by NRTC or otherwise) is thereafter discovered which would have affected the Final Closing Adjustment, the party in whose favor the error was made shall immediately pay in cash the amount of such error amount and shall be wire transferred to an account designated by Acquiror or Seller, as the other partycase may be.
Appears in 1 contract
Adjustment to Purchase Price. (a) The Closing Payment shall be increased by the parties' good faith estimate of the Current Assets of Seller and decreased by the parties' good faith estimate of the Current Liabilities of Seller as of the Closing Date Within ninety (the "Closing Adjustment"), which adjustment shall be subject to final adjustment as provided for in paragraph (c) below.
(b) No later than sixty (6090) days after the Closing Date, or Buyer shall deliver to Seller, at Buyer’s sole cost and expense, a statement setting forth its calculation of the actual Adjustment Amount (the “Buyer Closing Statement”).
(b) In the event that Seller is in disagreement with the Buyer Closing Statement, Seller shall, within three thirty (330) days after receipt of the necessary accounting data from the NRTC Central Billing SystemBuyer Closing Statement, whichever is later, Purchaser shall make prepare and deliver to Seller Buyer a balance sheet reflecting the Current Assets and Current Liabilities computation of Seller as its own analysis of the Buyer Closing Date Statement (the "“Seller Closing Date Balance Sheet"Statement”). If within thirty (30) days following delivery of such computation Buyer does not object in writing thereto to Seller, prepared on a basis consistent with GAAP. For purposes of then the Buyer Closing Adjustment and the Final Closing Adjustment (as hereinafter defined), the amount of Accounts Receivable of Seller to Statement shall be included in the Closing Date Balance Sheet shall include only Accounts Receivable of Subscribers as reflected on Report 18A the computation provided by Seller pursuant to the immediately preceding sentence. If within such thirty (Subscriber Accounts Receivable Aging By Account) of the NRTC Central Billing System Reports less a reserve of six percent (6%) for Accounts Receivable which are not collectible. In addition, the Closing Date Balance Sheet and the Final Closing Adjustment shall not include as a Current Asset any accounts receivable arising from Leased Subscriber Equipment. Purchaser may, by providing Seller with written notice at least five (530) days prior Buyer objects to the ClosingSeller in writing to such computation, elect to purchase all, or certain of, the DSS(TM) subscriber equipment owned by then Buyer and Seller (other than Leased Subscriber Equipment) on the Closing Date; provided, however, Purchaser shall not have the right to acquire any assets attributable to Seller's Electric Business. Any such equipment which is purchased by Purchaser shall be included as Inventory in the Closing Date Balance Sheet. Except as set forth in this Section 4.4(b), no other assets or liabilities shall be included in the Closing Date Balance Sheet. Seller shall make available to Purchaser such documentation, back-up, invoices, and books and records of Seller as Purchaser may reasonably request.
(c) Seller and Purchaser shall negotiate in good faith and attempt to reconcile any discrepancies which may arise resolve their disagreement. Should such negotiations not result in connection with an agreement within thirty (30) days after receipt by Buyer of such written objection from Seller, then the determination disputed items of the Buyer Closing Date Balance Sheet. If Seller and Purchaser are unable to reconcile Statement (such discrepanciesitems, Seller shall have fifteen (15the “disputed items”) days from presentment of the Closing Date Balance Sheet by Purchaser to notify Purchaser if Seller wishes to have Purchaser's determination examined. If Seller elects to have Purchaser's determination examined, it shall be submitted to the Independent Accounting Firm, and all other items on the Buyer Closing Statement shall be final, binding and conclusive on the Parties. The Independent Accounting Firm will deliver to Buyer and Seller a written determination of the disputed items (such determination to include a worksheet setting forth all material calculations used in Atlanta, Georgia, by the Certified Public Accounting firm of KMPG Peat Marwick (or any other independent Certified Public Accounting firm mutually acceptable to Seller arriving at such determination and Purchaser), the cost of such examination to be paid fifty percent (50%based solely on information provided to the Independent Accounting Firm by Buyer and Seller) by Seller and fifty percent (50%) by Purchaser. The determination by Purchaser shall be final and binding on the parties unless Seller elects to have an examination as provided herein, in which case the results of the examination shall be made within thirty (30) days of such referralthe submission of the dispute to the Independent Accounting Firm, which determination will be final, binding and shall be final and binding conclusive on the parties (the "Final Closing Adjustment").
(d) To the extent the Final Closing Adjustment is less than the Closing Adjustment, Seller shall pay the difference in cash to Purchaser within five (5) days after the final determinationParties. In resolving any disagreement, the event the Final Closing Adjustment is Independent Accounting Firm may not assign any value to a disputed item greater than the Closing Adjustmentgreatest value claimed for such disputed item by any Party or lesser than the lowest value claimed for such disputed item by any Party. All fees and expenses relating to the work, Purchaser shall pay such excess in cash if any, to Seller within five (5) days after be performed by the final determination. If, following any payment Independent Accounting Firm pursuant to this Section 4.4(d2.3(b) will be allocated between Seller and Buyer in inverse proportion as each shall prevail in respect of the dollar amount of disputed items so submitted (as finally determined by the Independent Accounting Firm). Within ten (10) Business Days after the Buyer Closing Statement is finally determined as provided in this Section 2.3(b) (as agreed between the Parties or as determined by the Independent Accounting Firm), an error (in billing the difference between the actual Adjustment Amount and the Estimated Adjustment Amount shall be paid by Seller to Buyer or reporting by NRTC Buyer to Seller, as applicable, by wire transfer of immediately available funds to such account or otherwise) is thereafter discovered which would have affected the Final Closing Adjustmentaccounts as shall be specified by Buyer or Seller, the party in whose favor the error was made shall immediately pay in cash the amount of such error to the other partyas applicable.
Appears in 1 contract
Sources: Purchase and Sale Agreement (PPL Energy Supply LLC)
Adjustment to Purchase Price. (a) The Closing Payment shall be increased by the parties' good faith estimate of the Current Assets of Seller and decreased by the parties' good faith estimate of the Current Liabilities of Seller as of the Closing Date (the "Closing Adjustment"), which adjustment shall be subject to final adjustment as provided for in paragraph (c) below.
(b) No later than sixty thirty (6030) days after the Closing Date, or within three (3) days after receipt of the necessary accounting data from the NRTC Central Billing System, whichever is later, Purchaser shall make and deliver to Seller a balance sheet reflecting the Current Assets and Current Liabilities of Seller as of the Closing Date (the "Closing Date Balance Sheet"), prepared on a basis consistent with GAAPthis Agreement. For purposes of the Closing Adjustment and the Final Closing Adjustment (as hereinafter defined), (i) the amount of Accounts Receivable of Seller to be included in the Closing Date Balance Sheet shall include only Accounts Receivable of Subscribers as reflected on Report 18A (Subscriber Accounts Receivable Aging By by Account) of the NRTC Central Billing System Reports less a reserve of six percent (6%) for Accounts Receivable which are not collectiblecollectible as determined in accordance with GAAP ("Bad Debt Reserve"), and (ii) the amount of Inventory of Seller to be included in the Closing Date Balance Sheet shall not exceed (a) $100,000 for all undamaged, original units in original sealed cartons and (b) $20,000 for all used and refurbished units. In addition, the Closing Date Balance Sheet and the Final Closing Adjustment shall not include as a Current Asset the net book value of any DSS(TM) subscriber units of Seller leased by it to any of its Customers and any accounts receivable arising from Leased Subscriber Equipment. Purchaser may, by providing Seller with written notice at least five (5) days prior to the Closing, elect to purchase all, or certain of, the DSS(TM) subscriber equipment owned by Seller (other than Leased Subscriber Equipment) on the Closing Date; provided, however, Purchaser shall not have the right to acquire any assets attributable to Seller's Electric Business. Any such equipment which is purchased by Purchaser shall be included as Inventory in the Closing Date Balance Sheetleases. Except as set forth in this Section 4.4(b), no other assets or liabilities shall be included in the Closing Date Balance Sheet. Seller shall make available to Purchaser such documentation, back-up, invoices, and books and records of Seller as Purchaser may reasonably request.
(c) Seller and Purchaser shall negotiate in good faith to reconcile any discrepancies which may arise in connection with the determination of the Closing Date Balance Sheet. If Seller and Purchaser are unable to reconcile such discrepancies, Seller shall have fifteen (15) days from presentment of the Closing Date Balance Sheet by Purchaser to notify Purchaser if Seller wishes to have Purchaser's determination examined. If Seller elects to have Purchaser's determination examined, it shall be submitted to the determination in AtlantaKansas City, GeorgiaMissouri, by the Certified Public Accounting firm of KMPG Peat Marwick (or any other independent Certified Public Accounting firm mutually acceptable to Seller and Purchaser), the cost of such examination to be paid fifty percent (50%) by Seller and fifty percent (50%) by Purchaser; provided the fees of such firm shall not exceed $10,000. The determination by Purchaser shall be final and binding on the parties unless Seller elects to have an examination as provided herein, in which case the results of the examination shall be made within thirty (30) days of such referral, and shall be final and binding on the parties (the "Final Closing Adjustment").
(d) To the extent the Final Closing Adjustment is less than the Closing Adjustment, Seller shall pay the difference in cash to Purchaser within five (5) days after the final determination. In the event the Final Closing Adjustment is greater than the Closing Adjustment, Purchaser shall pay such excess in cash to Seller within five (5) days after the final determination. If, following any payment pursuant to this Section 4.4(d), an error (in billing or reporting by NRTC or otherwise) is thereafter discovered which would have affected the Final Closing Adjustment, the party in whose favor the error was made shall shall, provided such error is discovered within six (6) months of the Closing Date, immediately pay in cash the amount of such error to the other party.
Appears in 1 contract
Sources: Asset Purchase Agreement (Digital Television Services of Kansas LLC)
Adjustment to Purchase Price. A. The Company is a party to a Purchase and Sale Agreement dated as of July 15, 1997 (aas amended, the "Real Estate Agreement") The whereby the Company has agreed to purchase from Atlantic Refining & Marketing Corp. ("Atlantic") the premises in Upper Uwchlan Township, Ches▇▇▇ ▇▇▇nty, Pennsylvania where the Company currently conducts its business for a purchase price of $600,000. Closing Payment under the Real Estate Agreement had been expected to occur prior to the Closing hereunder. For various reasons, the closing under the Real Estate Agreement has been delayed and is not expected to occur until after the Closing, although the effective date of such closing will be February 26, 1999. Therefore, the Purchase Price payable hereunder shall be increased reduced by the parties' good faith estimate amount (the "Real Estate Closing Amount") necessary to complete the closing under the Real Estate Agreement as shown on the settlement sheet (the "Settlement Sheet") as shall be accepted by the parties to that agreement prior to the Closing hereunder. At Closing, the Real Estate Closing Amount shall be delivered to Commonwealth Land Title Insurance Company to be held until the recordation of the Current Assets of Seller and decreased by deed to the parties' good faith estimate of above mentioned premises whereupon it will be disbursed to the Current Liabilities of Seller persons as shown on the settlement sheet.
B. The Purchase Price shall be further adjusted as follows:
1. If the Company's current assets as of the Closing Date (exceed the "Closing Adjustment")Company's liabilities as of such date, which adjustment then such excess shall be subject paid to final adjustment Seller as provided for in paragraph (c) belowan addition to the Purchase Price.
(b) No later than sixty (60) days after 2. If the Closing Date, or within three (3) days after receipt of the necessary accounting data from the NRTC Central Billing System, whichever is later, Purchaser shall make and deliver to Seller a balance sheet reflecting the Current Assets and Current Liabilities of Seller Company's liabilities as of the Closing Date (exceed the "Company's current assets as of such date, then Seller shall reimburse to Buyer an amount equal to such deficiency.
C. The adjustment to be made under paragraph B shall be made 120 days after the Closing Date Balance Sheet("the Adjustment Date"). Current assets and liabilities shall be determined in accordance with generally accepted accounting principles except that accounts receivable, prepared including unbilled services rendered to the date of closing and billed thereafter, will be considered current assets only if collected prior to the Adjustment Date or are otherwise accepted in writing by Buyer.
D. The adjustment for current assets and liabilities shall be made hereunder as follows:
1. If there is an excess of current assets over liabilities, the excess, to the extent of cash collected, shall be paid to Seller on the Adjustment Date. To the extent such excess is in the form of yet uncollected accounts receivable, Buyer shall cause the Company to continue to collect such outstanding receivables and Buyer shall pay to Seller, monthly, receivables thereafter collected. Payment on account of such receivables shall be made by the 10th day of each month for collections received during the preceding month and shall be accompanied by a basis consistent with GAAPstatement of accounts collected.
2. For purposes of If the Closing Adjustment and the Final Closing Adjustment liabilities exceed current assets then, at Seller's election, (as hereinafter defined), i) Seller shall pay to Buyer the amount of Accounts Receivable of Seller to be included in such deficiency or (ii) the Closing Date Balance Sheet shall include only Accounts Receivable of Subscribers as reflected on Report 18A (Subscriber Accounts Receivable Aging By Account) number of the NRTC Central Billing System Reports less Holdback Shares having a reserve value (calculated at the higher of six percent (6%then current market or $14.25 per share) for equal to the deficiency shall be released to Buyer and, in either such event, Buyer shall pay to Seller on a monthly basis as described above, an amount equal to the accounts receivable thereafter collected by the Company.
3. All payment received after Closing in respect of Customer Accounts Receivable which are not collectibleshall be applied to the oldest receivables then outstanding. In addition, the Closing Date Balance Sheet and Seller shall cause the Final Closing Adjustment Company to collect all accounts receivable in its normal course provided that the Seller shall not include as a Current Asset any be required to cause the Company to pursue the collection of accounts receivable arising from Leased Subscriber Equipment. Purchaser may, by providing Seller with written notice at least five (5) days prior to for the Closing, elect to purchase all, direct or certain of, the DSS(TM) subscriber equipment owned by Seller (other than Leased Subscriber Equipment) on the Closing Date; provided, however, Purchaser shall not have the right to acquire any assets attributable to Seller's Electric Business. Any such equipment which is purchased by Purchaser shall be included as Inventory in the Closing Date Balance Sheet. Except as set forth in this Section 4.4(b), no other assets or liabilities shall be included in the Closing Date Balance Sheet. Seller shall make available to Purchaser such documentation, back-up, invoices, and books and records indirect benefit of Seller as Purchaser may reasonably request.
(c) Seller and Purchaser shall negotiate in good faith to reconcile any discrepancies which may arise in connection with the determination of the Closing Date Balance Sheet. If Seller and Purchaser are unable to reconcile such discrepancies, unless Seller shall have fifteen (15) days from presentment of agreed to bear the Closing Date Balance Sheet by Purchaser to notify Purchaser if Seller wishes to have Purchaser's determination examined. If Seller elects to have Purchaser's determination examined, it shall be submitted to the determination in Atlanta, Georgia, by the Certified Public Accounting firm of KMPG Peat Marwick (or any other independent Certified Public Accounting firm mutually acceptable to Seller and Purchaser), the cost of such examination to be paid fifty percent (50%) by Seller and fifty percent (50%) by Purchaser. The determination by Purchaser shall be final and binding on the parties unless Seller elects to have an examination as provided herein, in which case the results of the examination shall be made within thirty (30) days of such referral, and shall be final and binding on the parties (the "Final Closing Adjustment")costs thereof.
(d) To the extent the Final Closing Adjustment is less than the Closing Adjustment, Seller shall pay the difference in cash to Purchaser within five (5) days after the final determination. In the event the Final Closing Adjustment is greater than the Closing Adjustment, Purchaser shall pay such excess in cash to Seller within five (5) days after the final determination. If, following any payment pursuant to this Section 4.4(d), an error (in billing or reporting by NRTC or otherwise) is thereafter discovered which would have affected the Final Closing Adjustment, the party in whose favor the error was made shall immediately pay in cash the amount of such error to the other party.
Appears in 1 contract
Adjustment to Purchase Price. No later than thirty (a30) The days after the Closing Payment Date, Buyer shall be increased by the parties' good faith estimate prepare and deliver to Parent (i) an unaudited consolidated balance sheet of the Current Assets of Seller and decreased by the parties' good faith estimate Company as of the Current Liabilities of Seller as of Saturday prior to the Closing Date prepared in accordance with GAAP, giving effect for any transactions or operations occurring on or before the Closing Date (the "Closing AdjustmentBalance Sheet"), which adjustment shall be subject to final adjustment as provided for (ii) a calculation of (A) Net Working Capital, (B) the Debt Amount, (C) the LTIP Amount, (D) the Capitalized Lease Amount and (E) the Tax Amount, in paragraph (c) below.
(b) No later than sixty (60) days after the Closing Date, or within three (3) days after receipt of the necessary accounting data from the NRTC Central Billing System, whichever is later, Purchaser shall make and deliver to Seller a balance sheet reflecting the Current Assets and Current Liabilities of Seller each case as of the Closing Date and (iii) a certificate (the "Closing Date Balance SheetPurchase Price Certificate") setting forth a proposed final Purchase Price subject to the adjustments provided in Section 2.2(a) (the "Proposed Final Purchase Price") which shall be calculated as (A) Four Hundred Fifty Million Dollars ($450,000,000), prepared on a basis consistent with GAAPminus (B) the Working Capital Deficit (if any), plus (C) the Net Working Capital Excess (if any), minus (D) the Debt Amount, minus (E) the LTIP Amount, minus (F) the Capitalized Lease Amount, minus (G) the Tax Amount. For purposes Buyer will furnish and cause the Company to furnish to Parent and its advisors access (and if requested, copies) of such documents, financial records, work papers, financial management personnel and other information as Parent may request that are available to or obtainable by Buyer or the Company and reasonably deemed relevant by Parent to the preparation of the Closing Adjustment Balance Sheet and the Final Closing Adjustment Purchase Price Certificate. If within thirty (as hereinafter defined), the amount 30) days following delivery of Accounts Receivable of Seller to be included in the Closing Date Balance Sheet shall include only Accounts Receivable of Subscribers as reflected on Report 18A (Subscriber Accounts Receivable Aging By Account) of the NRTC Central Billing System Reports less a reserve of six percent (6%) for Accounts Receivable which are not collectible. In addition, the Closing Date Balance Sheet and the Final Closing Adjustment shall Purchase Price Certificate, Parent has not include as a Current Asset any accounts receivable arising from Leased Subscriber Equipment. Purchaser may, by providing Seller with given Buyer written notice at least five of its objection thereto (5) days prior such notice must contain a statement of the basis of Parent's objection), then Parent shall be deemed to have accepted and agreed to the ClosingClosing Balance Sheet and the Purchase Price Certificate, elect and the Proposed Final Purchase Price shall be deemed to purchase allbe the Purchase Price as required to be adjusted per Section 2.2(a). If Parent gives such notice of objection, or certain of, the DSS(TM) subscriber equipment owned by Seller (then Buyer and Parent shall cooperate with each other than Leased Subscriber Equipment) in an effort to come to an agreement on the Closing Date; provided, however, Purchaser shall not have the right to acquire any assets attributable to Seller's Electric Business. Any such equipment matters which is purchased by Purchaser shall be included as Inventory are in the Closing Date Balance Sheet. Except as set forth in this Section 4.4(b), no other assets or liabilities shall be included in the Closing Date Balance Sheet. Seller shall make available to Purchaser such documentation, back-up, invoices, and books and records of Seller as Purchaser may reasonably request.
(c) Seller and Purchaser shall negotiate in good faith to reconcile any discrepancies which may arise in connection with the determination of the Closing Date Balance Sheetdispute. If Seller and Purchaser are unable to reconcile such discrepancies, Seller shall have fifteen (15) days from presentment of the Closing Date Balance Sheet by Purchaser to notify Purchaser if Seller wishes to have Purchaser's determination examined. If Seller elects to have Purchaser's determination examined, it shall dispute cannot be submitted to the determination in Atlanta, Georgia, by the Certified Public Accounting firm of KMPG Peat Marwick (or any other independent Certified Public Accounting firm mutually acceptable to Seller and Purchaser), the cost of such examination to be paid fifty percent (50%) by Seller and fifty percent (50%) by Purchaser. The determination by Purchaser shall be final and binding on the parties unless Seller elects to have an examination as provided herein, in which case the results of the examination shall be made resolved within thirty (30) days of Buyer's receipt of Parent's notice of objection, then the issues in dispute will be submitted to the Accountants for resolution. If issues in dispute are submitted to the Accountants for resolution, (i) each party will be afforded the opportunity to present to the Accountants any material relating to the determination and to discuss the determination with the Accountants; (ii) the determination by the Accountants, as set forth in a notice delivered to both parties by the Accountants, will be binding and conclusive on the parties; and (iii) Buyer and Parent will each bear one-half (1/2) of the fees and expenses of the Accountants for such referral, and determination. The Final Purchase Price shall be final and binding on the parties (the "Final Closing Adjustment").
(d) To the extent the Final Closing Adjustment is less than the Closing Adjustment, Seller shall pay the difference in cash deemed to Purchaser within five (5) days after be the final determination. In the event the Final Closing Adjustment is greater than the Closing Adjustment, Purchaser shall pay such excess in cash Purchase Price (subject to Seller within five (5) days after the final determination. If, following any payment and as required to be adjusted pursuant to Section 2.2(a)) determined in accordance with this Section 4.4(d2.2(d), an error (in billing or reporting whether by NRTC or otherwise) is thereafter discovered which would have affected the Final Closing Adjustment, the party in whose favor the error was made shall immediately pay in cash the amount failure of such error Parent to provide a notice of objection to the other partyProposed Final Purchase Price, by resolution of all disputes by Buyer and Parent or by determination of the Accountants.
Appears in 1 contract
Sources: Stock Purchase Agreement (Flowers Industries Inc /Ga)
Adjustment to Purchase Price. (a) Subject to Section 3.3(b), at ---------------------------- the Closing, the Purchase Price shall be adjusted to account for the items set forth in this Section 3.3(a):
(i) The Purchase Price shall be increased to reflect the fair market value of all Fuel Inventories held by Sellers as of the Closing Payment Date, calculated using the weighted average cost method consistent with Sellers' past and current accounting practices.
(ii) The Purchase Price shall be adjusted to account for the items prorated as of the Closing Date pursuant to Section 3.5.
(iii) The Purchase Price shall be increased by the parties' good faith estimate of amount expended, or for which a commitment was made, by Sellers between the Current Assets of Seller date hereof and decreased by the parties' good faith estimate of the Current Liabilities of Seller as of the Closing Date for capital additions to or replacements of property, plant and equipment included in the Purchased Assets and other expenditures or repairs on property, plant and equipment included in the Purchased Assets that would be capitalized by Sellers in accordance with normal accounting policies of Sellers and their Affiliates (together, "Capital ------- Expenditures"), which Capital Expenditures either are (A) described on ------------ Schedule 6.1; (B) for facility upgrades or changes required by law or regulation of general application (i.e., not Sunbury specific) enacted after the date hereof which is applicable to the post-Closing period, provided that Buyer shall have the opportunity to review and approve the plans, specifications, and budget for such facility upgrades or changes, which approval shall not be unreasonably withheld or delayed; or (C) approved in writing by Buyer.
(b) At least ten (10) Business Days prior to the Closing Date, Sellers shall prepare and deliver to Buyer an estimated closing statement (the "Estimated Closing Statement") that shall set forth in reasonable detail --------------------------- Sellers' best estimate of all estimated adjustments to the Purchase Price required by Section 3.3(a) (the "Estimated Adjustment"), together with the -------------------- assumptions and calculations used by Sellers to estimate such adjustments. Within five (5) Business Days following the delivery of the Estimated Closing Statement by Sellers to Buyer, Buyer may object in good faith to the Estimated Adjustment in writing. If Buyer objects to the Estimated Adjustment, the Parties shall attempt to resolve their differences by negotiation. If the Parties are unable to do so within two (2) Business Days prior to the Closing Date (or if Buyer does not object to the Estimated Adjustment), the Purchase Price shall be adjusted (the "Closing Adjustment"), which adjustment ) for the Closing by the ------------------ amount of the Estimated Adjustment not in dispute. The disputed portion shall be subject paid as a Post-Closing Adjustment to final adjustment as provided for in paragraph the extent required by Section 3.3(c).
(c) below.
(b) No later than Within sixty (60) days after following the Closing Date, or within three (3) days after receipt of the necessary accounting data from the NRTC Central Billing System, whichever is later, Purchaser Sellers shall make prepare and deliver to Seller Buyer a balance sheet reflecting the Current Assets and Current Liabilities of Seller as of the Closing Date final closing statement (the "Post-Closing Date Balance SheetStatement"), prepared on a basis consistent with GAAP. For purposes of the Closing Adjustment and the Final Closing Adjustment (as hereinafter defined), the amount of Accounts Receivable of Seller to be included in the Closing Date Balance Sheet ) that shall include only Accounts Receivable of Subscribers as reflected on Report 18A (Subscriber Accounts Receivable Aging By Account) of the NRTC Central Billing System Reports less a reserve of six percent (6%) for Accounts Receivable which are not collectible. In addition, the Closing Date Balance Sheet and the Final Closing Adjustment shall not include as a Current Asset any accounts receivable arising from Leased Subscriber Equipment. Purchaser may, by providing Seller with written notice at least five (5) days prior to the Closing, elect to purchase all, or certain of, the DSS(TM) subscriber equipment owned by Seller (other than Leased Subscriber Equipment) on the Closing Date; provided, however, Purchaser shall not have the right to acquire any assets attributable to Seller's Electric Business. Any such equipment which is purchased by Purchaser shall be included as Inventory in the Closing Date Balance Sheet. Except as set forth in this reasonable detail all ---------------------- adjustments to the Purchase Price required by Section 4.4(b3.3(a) (the "Proposed -------- Post-Closing Adjustment"). Within thirty (30) days following the delivery of ----------------------- the Post-Closing Statement by Sellers to Buyer, no other assets or liabilities shall be included Buyer may object to the Proposed Post-Closing Adjustment in writing. Sellers agree to cooperate with Buyer to provide Buyer and Buyer's Representatives information used to prepare the Post-Closing Date Balance Sheet. Seller shall make available to Purchaser such documentation, back-up, invoices, Statement and books and records of Seller as Purchaser may reasonably request.
(c) Seller and Purchaser shall negotiate in good faith to reconcile any discrepancies which may arise in connection with the determination of the Closing Date Balance Sheetinformation relating thereto. If Seller and Purchaser Buyer objects to the Proposed Post-Closing Adjustment, the Parties shall attempt to resolve such dispute by negotiation. If the Parties are unable to reconcile resolve such discrepancies, Seller shall have fifteen (15) days from presentment of the Closing Date Balance Sheet by Purchaser to notify Purchaser if Seller wishes to have Purchaser's determination examined. If Seller elects to have Purchaser's determination examined, it shall be submitted to the determination in Atlanta, Georgia, by the Certified Public Accounting firm of KMPG Peat Marwick (or any other independent Certified Public Accounting firm mutually acceptable to Seller and Purchaser), the cost of such examination to be paid fifty percent (50%) by Seller and fifty percent (50%) by Purchaser. The determination by Purchaser shall be final and binding on the parties unless Seller elects to have an examination as provided herein, in which case the results of the examination shall be made dispute within thirty (30) days of such referralany objection by Buyer, and the Parties shall appoint an Independent Accounting Firm, which shall be final instructed to review the Proposed Post-Closing Adjustment and determine the appropriate adjustment to the Purchase Price, if any, within thirty (30) days thereafter. The fees and disbursements of such Independent Accounting Firm shall be allocated between Buyer and Sellers such that Buyer's share of such fees and disbursements shall be in the same proportion that the aggregate amount of such remaining disputed amounts so submitted by Buyer to such Independent Accounting Firm that is unsuccessfully disputed by Buyer (as finally determined by such Independent Accounting Firm) bears to the total amount of such remaining disputed amounts so submitted by Buyer. The finding of such Independent Accounting Firm shall be binding on the parties Parties hereto. Upon determination of the appropriate adjustment (the "Final Post-Closing Adjustment").
(d) To ----------------------- by agreement of the extent Parties or by binding determination of the Final Independent Accounting Firm, if the Post-Closing Adjustment is more or less than the Closing Adjustment, Seller shall pay the difference in cash to Purchaser within five (5) days after Party owing the final determination. In the event the Final Closing Adjustment is greater than the Closing Adjustment, Purchaser shall pay such excess in cash to Seller within five (5) days after the final determination. If, following any payment pursuant to this Section 4.4(d), an error (in billing or reporting by NRTC or otherwise) is thereafter discovered which would have affected the Final Closing Adjustment, the party in whose favor the error was made shall immediately pay in cash the amount of such error to the other party.difference
Appears in 1 contract
Adjustment to Purchase Price. (ai) The If (A) the Working Capital set forth in the Final Statements is equal to the Preliminary Closing Payment Date Net Working Capital Amount set forth in the Preliminary Statement, and (B) the Net Indebtedness set forth in the Final Statements is equal to the Preliminary Closing Date Net Indebtedness set forth in the Preliminary Statement, then no further adjustment will be made to the Purchase Price, and Purchaser and Agent shall deliver joint written instructions to the Escrow Agent instructing the Escrow Agent to release the Adjustment Escrow Amount from the Adjustment Escrow Account to Agent.
(ii) If the Working Capital set forth in the Final Statements is greater than the Preliminary Closing Date Net Working Capital Amount set forth in the Preliminary Statement, then Purchaser shall owe an amount equal to such excess to Sellers. If the Working Capital set forth in the Final Statements is less than the Preliminary Closing Date Net Working Capital Amount set forth in the Preliminary Statement, then Sellers shall owe an amount equal to such shortfall to Purchaser.
(iii) If the Preliminary Closing Date Net Indebtedness set forth in the Preliminary Statement is greater than the Net Indebtedness set forth in the Final Statements, then Purchaser shall owe an amount equal to such excess to Sellers. If the Net Indebtedness set forth in the Final Statements is greater than the Preliminary Closing Date Net Indebtedness set forth in the Preliminary Statement, then Sellers shall owe an amount equal to such excess to Purchaser.
(iv) If the sum of the amounts calculated pursuant to Sections 2.7(g)(ii) and 2.7(g)(iii) is owed by Purchaser to Sellers (the "Net Upward Adjustment"), then within five Business Days of the final determination of the Final Statements,
(A) the Purchase Price shall be increased by the parties' good faith estimate Net Upward Adjustment;
(B) Purchaser and Agent shall deliver joint written instructions to the Escrow Agent instructing the Escrow Agent to release the Adjustment Escrow Amount from the Adjustment Escrow Account to Agent by way #110828415 of wire transfer of immediately available funds to an account designated in writing by Agent; and
(C) Purchaser shall pay the Net Upward Adjustment to Sellers, by way of wire transfer of immediately available funds to an account designated in writing by Agent, provided that the amount of the Current Assets Net Upward Adjustment shall not exceed $3,050,000, and Sellers shall have no further recourse to Purchaser for any portion of Seller the Net Upward Adjustment that exceeds $3,050,000.
(v) If the sum of the amounts calculated pursuant to Sections 2.7(g)(ii) and 2.7(g)(iii) is owed by Sellers to Purchaser (the "Net Downward Adjustment") and the Net Downward Adjustment is greater than or equal to the Adjustment Escrow Amount, then within five Business Days of the final determination of the Final Statements,
(A) the Purchase Price shall be decreased by the parties' good faith estimate Net Downward Adjustment;
(B) Purchaser and Agent shall deliver joint written instructions to the Escrow Agent instructing the Escrow Agent to release, for and on behalf of Sellers, to Purchaser, the Adjustment Escrow Amount from the Adjustment Escrow Account, by wire transfer of immediately available funds to an account designated in writing by Purchaser; and
(C) Purchaser shall have no further recourse to Sellers for any portion of the Current Liabilities of Seller as of Net Downward Adjustment that exceeds the Closing Date (the "Closing Adjustment"), which adjustment shall be subject to final adjustment as provided for in paragraph (c) belowAdjustment Escrow Amount.
(bvi) No later than sixty (60) days after If the Closing Date, or within three (3) days after receipt of the necessary accounting data from the NRTC Central Billing System, whichever is later, Purchaser shall make and deliver to Seller a balance sheet reflecting the Current Assets and Current Liabilities of Seller as of the Closing Date (the "Closing Date Balance Sheet"), prepared on a basis consistent with GAAP. For purposes of the Closing Adjustment and the Final Closing Adjustment (as hereinafter defined), the amount of Accounts Receivable of Seller to be included in the Closing Date Balance Sheet shall include only Accounts Receivable of Subscribers as reflected on Report 18A (Subscriber Accounts Receivable Aging By Account) of the NRTC Central Billing System Reports less a reserve of six percent (6%) for Accounts Receivable which are not collectible. In addition, the Closing Date Balance Sheet and the Final Closing Adjustment shall not include as a Current Asset any accounts receivable arising from Leased Subscriber Equipment. Purchaser may, by providing Seller with written notice at least five (5) days prior to the Closing, elect to purchase all, or certain of, the DSS(TM) subscriber equipment owned by Seller (other than Leased Subscriber Equipment) on the Closing Date; provided, however, Purchaser shall not have the right to acquire any assets attributable to Seller's Electric Business. Any such equipment which is purchased by Purchaser shall be included as Inventory in the Closing Date Balance Sheet. Except as set forth in this Section 4.4(b), no other assets or liabilities shall be included in the Closing Date Balance Sheet. Seller shall make available to Purchaser such documentation, back-up, invoices, and books and records of Seller as Purchaser may reasonably request.
(c) Seller and Purchaser shall negotiate in good faith to reconcile any discrepancies which may arise in connection with the determination of the Closing Date Balance Sheet. If Seller and Purchaser are unable to reconcile such discrepancies, Seller shall have fifteen (15) days from presentment of the Closing Date Balance Sheet by Purchaser to notify Purchaser if Seller wishes to have Purchaser's determination examined. If Seller elects to have Purchaser's determination examined, it shall be submitted to the determination in Atlanta, Georgia, by the Certified Public Accounting firm of KMPG Peat Marwick (or any other independent Certified Public Accounting firm mutually acceptable to Seller and Purchaser), the cost of such examination to be paid fifty percent (50%) by Seller and fifty percent (50%) by Purchaser. The determination by Purchaser shall be final and binding on the parties unless Seller elects to have an examination as provided herein, in which case the results of the examination shall be made within thirty (30) days of such referral, and shall be final and binding on the parties (the "Final Closing Adjustment").
(d) To the extent the Final Closing Net Downward Adjustment is less than the Closing Adjustment Escrow Amount, then within five Business Days of the final determination of the Final Statements,
(A) the Purchase Price shall be decreased by the Net Downward Adjustment;
(B) Purchaser and Agent shall deliver joint written instructions to the Escrow Agent instructing the Escrow Agent to release, for and on behalf of Sellers, (i) to Purchaser, an amount equal to the Net Downward Adjustment, Seller shall pay by wire transfer of immediately available funds to an account designated in writing by Purchaser; and (ii) to Sellers the difference balance of the Adjustment Escrow Amount from the Adjustment Escrow Account by wire transfer of immediately available funds to an account designated in cash to Purchaser within five (5) days after the final determination. In the event the Final Closing Adjustment is greater than the Closing Adjustment, Purchaser shall pay such excess in cash to Seller within five (5) days after the final determination. If, following any payment pursuant to this Section 4.4(d), an error (in billing or reporting writing by NRTC or otherwise) is thereafter discovered which would have affected the Final Closing Adjustment, the party in whose favor the error was made shall immediately pay in cash the amount of such error to the other partyAgent.
Appears in 1 contract
Adjustment to Purchase Price. (a) Subject to Section 3.3(b), at the ---------------------------- Closing, the Purchase Price shall be adjusted, without duplication, to account for the items set forth in this Section 3.3(a):
(i) The Purchase Price shall be increased or decreased, as applicable, to reflect the difference between the book value of all Inventories as of the Closing Payment Date and the value of all Inventories as of December 31, 1997 reflected on Schedule 3.3(a)(i).
(ii) The Purchase Price shall be adjusted to account for the items prorated as of the Closing Date pursuant to Section 3.5.
(iii) The Purchase Price shall be increased by the parties' good faith estimate of amount expended, or for which liabilities are incurred, by Sellers between the Current Assets of Seller date hereof and decreased by the parties' good faith estimate of the Current Liabilities of Seller as of the Closing Date for capital additions to or replacements of property, plant and equipment included in the Purchased Assets and other expenditures or repairs on property, plant and equipment included in the Purchased Assets that would be capitalized by Sellers in accordance with normal accounting policies of Sellers and their Affiliates (together, "Capital Expenditures"), which are not described ---------------------- on Schedule 6.1 and which either (A) are mandated after the date of this Agreement by any Governmental Authority (subject to Buyer's right to direct Sellers to contest such mandates by appropriate proceedings at Buyer's expense and provided there is no adverse impact on the Purchased Assets); or (B) do not fall within category (A) above but do not exceed in the aggregate $500,000; or (C) are approved in writing by Buyer.
(b) At least ten (10) Business Days prior to the Closing Date, Sellers shall prepare and deliver to Buyer an estimated closing statement (the "Estimated Closing Statement") that shall set forth Sellers' best estimate of all estimated adjustments to the Purchase Price required by Section 3.3(a) (the "Estimated Adjustment"). Within five (5) Business Days ---------------------- following the delivery of the Estimated Closing Statement by Sellers to Buyer, Buyer may object in good faith to the Estimated Adjustment in writing. If Buyer objects to the Estimated Adjustment, the Parties shall attempt to resolve their differences by negotiation. If the Parties are unable to do so within three (3) Business Days prior to the Closing Date (or if Buyer does not object to the Estimated Adjustment), the Purchase Price shall be adjusted (the "Closing Adjustment"), which adjustment ) for the Closing by the amount of the Estimated -------------------- Adjustment not in dispute. The disputed portion shall be subject paid as a Post-Closing Adjustment to final adjustment as provided for in paragraph the extent required by Section 3.3(c).
(c) below.
(b) No later than Within sixty (60) days after following the Closing Date, or within three (3) days after receipt of the necessary accounting data from the NRTC Central Billing System, whichever is later, Purchaser Sellers shall make prepare and deliver to Seller Buyer a balance sheet reflecting the Current Assets and Current Liabilities of Seller as of the Closing Date final closing statement (the "Post-Closing Date Balance Sheet------------- Statement") that shall set forth all adjustments to the Purchase Price required ---------- by Section 3.3(a) (the "Proposed Post-Closing Adjustment"), prepared on a basis consistent with GAAP. For purposes of the The Post-Closing Adjustment and the Final Closing Adjustment (as hereinafter defined), the amount of Accounts Receivable of Seller to be included in the Closing Date Balance Sheet shall include only Accounts Receivable of Subscribers as reflected on Report 18A (Subscriber Accounts Receivable Aging By Account) of the NRTC Central Billing System Reports less a reserve of six percent (6%) for Accounts Receivable which are not collectible. In addition, the Closing Date Balance Sheet and the Final Closing Adjustment shall not include as a Current Asset any accounts receivable arising from Leased Subscriber Equipment. Purchaser may, by providing Seller with written notice at least five (5) days prior to the Closing, elect to purchase all, or certain of, the DSS(TM) subscriber equipment owned by Seller (other than Leased Subscriber Equipment) on the Closing Date; provided, however, Purchaser shall not have the right to acquire any assets attributable to Seller's Electric Business. Any such equipment which is purchased by Purchaser ---------------------------------- Statement shall be included prepared using the same accounting principles, policies and methods as Inventory in the Closing Date Balance Sheet. Except as set forth in this Section 4.4(b), no other assets or liabilities shall be included in the Closing Date Balance Sheet. Seller shall make available to Purchaser such documentation, back-up, invoices, and books and records of Seller as Purchaser may reasonably request.
(c) Seller and Purchaser shall negotiate in good faith to reconcile any discrepancies which may arise Sellers have historically used in connection with the determination calculation of the items reflected on such Post-Closing Date Balance SheetStatement. Within thirty (30) days following the delivery of the Post-Closing Statement by Sellers to Buyer, Buyer may object to the Proposed Post-Closing Adjustment in writing. Sellers agree to cooperate with Buyer to provide Buyer and Buyer's Representatives information used to prepare the Post-Closing Statement and information relating thereto. If Seller and Purchaser Buyer objects to the Proposed Post-Closing Adjustment, the Parties shall attempt to resolve such dispute by negotiation. If the Parties are unable to reconcile resolve such discrepancies, Seller shall have fifteen dispute within thirty (1530) days from presentment of any objection by Buyer, the Parties shall appoint the Independent Accounting Firm, which shall, at Sellers' and Buyer's joint expense, review the Proposed Post-Closing Date Balance Sheet by Purchaser to notify Purchaser if Seller wishes to have Purchaser's determination examined. If Seller elects to have Purchaser's determination examined, it shall be submitted Adjustment and determine the appropriate adjustment to the determination in AtlantaPurchase Price, Georgiaif any, by the Certified Public Accounting firm of KMPG Peat Marwick (or any other independent Certified Public Accounting firm mutually acceptable to Seller and Purchaser), the cost of such examination to be paid fifty percent (50%) by Seller and fifty percent (50%) by Purchaser. The determination by Purchaser shall be final and binding on the parties unless Seller elects to have an examination as provided herein, in which case the results of the examination shall be made within thirty (30) days of such referral, appointment. The Parties agree to cooperate with the Independent Accounting Firm and provide it with such information as it reasonably requests to enable it to make such determination. The finding of such Independent Accounting Firm shall be final and binding on the parties Parties hereto. Upon determination of the appropriate adjustment (the "Final Post-Closing Adjustment").
(d) To by agreement of the extent Parties or ------------------------- by binding determination of the Final Independent Accounting Firm, if the Post- Closing Adjustment is more or less than the Closing Adjustment, Seller shall pay the Party owing the difference in cash to Purchaser within five (5) days after the final determination. In the event the Final Closing Adjustment is greater than the Closing Adjustment, Purchaser shall pay deliver such excess in cash to Seller within five (5) days after the final determination. If, following any payment pursuant to this Section 4.4(d), an error (in billing or reporting by NRTC or otherwise) is thereafter discovered which would have affected the Final Closing Adjustment, the party in whose favor the error was made shall immediately pay in cash the amount of such error difference to the other partyParty no later than two (2) Business Days after such determination, in immediately available funds or in any other manner as reasonably requested by the payee.
Appears in 1 contract
Adjustment to Purchase Price. (a) The Not later than one (1) Business Day prior to the Closing Payment shall be increased Date, the Company will deliver to Buyer a certificate signed by an officer of the parties' Company (the “Preliminary Statement”) setting forth the Company’s good faith estimate (including all calculations in reasonable detail) of (i) the Tangible Net Asset Value as of the Current Assets close of Seller and decreased by business on the parties' good faith estimate of the Current Liabilities of Seller as of Business Day immediately preceding the Closing Date (the "Closing Adjustment"“Tangible Net Asset Value”), which adjustment (ii) the balance sheet for the Company as of the close of business on the Business Day immediately preceding the Closing Date (the “Closing Balance Sheet”), (iii) the amount of the Cash (that will not otherwise have been distributed pursuant to Section 2.6) as of the close of business on the Business Day immediately preceding the Closing Date. The Company will provide to the Buyer immediately prior to Closing an update of the Preliminary Statement to reflect any events or occurrences (such as payment of accounts receivables or writing of checks) or other information that would make the initially-delivered Preliminary Statement inaccurate in any material respects. The Company must prepare the Preliminary Statement and each element thereof by applying GAAP (as modified by the definition of “Tangible Net Asset Value”) and, but only to the extent consistent with GAAP, in a manner consistent with the Company’s past accounting practices. The Preliminary Statement shall be subject to final Buyer's written approval, and not later than one (1) day prior to the Closing, the Buyer shall identify any adjustments that it believes are required to the Preliminary Statement. If Seller disputes any such adjustments, Buyer and Seller shall use commercially reasonable efforts resolve such dispute. In the event the Buyer provides its written approval of the Preliminary Statement, the Purchase Price will be adjusted (up or down) at the Closing by the amount of the “Closing Adjustment,” equal to the estimated Tangible Net Asset Value set forth on the Seller’s updated Preliminary Statement minus the Target Tangible Net Asset Value. In the event that Buyer does not provide its written approval of the Preliminary Statement, the Closing shall proceed subject to the fulfillment or waiver in accordance herewith of the conditions set forth in Article 8, and any adjustment as provided for to the Purchase Price with respect to Tangible Net Asset Value and/or Cash shall be determined in paragraph accordance with Section 2.4(b) and (c) below).
(b) No later than sixty ninety (6090) days after following the Closing Date, or within three (3) days after receipt of the necessary accounting data from the NRTC Central Billing System, whichever is later, Purchaser shall make Buyer will prepare and deliver to Seller a balance sheet reflecting the Current Assets and Current Liabilities of Seller as of the Closing Date (the "Closing Date Balance Sheet"), prepared on a basis consistent with GAAP. For purposes of the Closing Adjustment and the Final Closing Adjustment (as hereinafter defined)Seller, the amount of Accounts Receivable of Seller to be included in the Closing Date Balance Sheet shall include only Accounts Receivable of Subscribers as reflected on Report 18A (Subscriber Accounts Receivable Aging By Account) of the NRTC Central Billing System Reports less a reserve of six percent (6%) for Accounts Receivable which are not collectible. In addition, the Closing Date Balance Sheet and the Final Closing Adjustment shall not include as a Current Asset any accounts receivable arising from Leased Subscriber Equipment. Purchaser may, by providing Seller with written notice at least five (5) days prior to the Closing, elect to purchase all, or certain of, the DSS(TM) subscriber equipment owned by Seller (other than Leased Subscriber Equipment) on the Closing Date; provided, however, Purchaser shall not have the right to acquire any assets attributable to Seller's Electric Business. Any such equipment which is purchased by Purchaser shall be included as Inventory in the Closing Date Balance Sheet. Except as set forth in this Section 4.4(b), no other assets or liabilities shall be included in the Closing Date Balance Sheet. Seller shall make available to Purchaser such documentation, back-up, invoices, and books and records of Seller as Purchaser may reasonably request.
(c) Seller and Purchaser shall negotiate in Buyer’s good faith to reconcile any discrepancies which may arise in connection with the determination of the Closing Date Balance Sheet. If Seller Sheet and Purchaser are unable to reconcile such discrepancies, Seller shall have fifteen (15) days from presentment actual Tangible Net Asset Value as of the close of business on the Business Day immediately preceding the Closing Date Balance Sheet by Purchaser to notify Purchaser if Seller wishes to have Purchaser's determination examined. If Seller elects to have Purchaser's determination examinedand the actual Cash as of the close of business on the Business Day immediately preceding Closing Date, it shall be submitted and identifying any adjustments to the determination in Atlanta, Georgia, by the Certified Public Accounting firm of KMPG Peat Marwick (or any other independent Certified Public Accounting firm mutually acceptable to Seller and Purchaser), the cost Purchase Price under Section 2.4(c) as a result of such examination to be paid fifty percent (50%) by Seller and fifty percent (50%) by Purchaserdeterminations. The determination Buyer must prepare such information by Purchaser shall be final and binding on the parties unless Seller elects to have an examination applying GAAP (as provided herein, in which case the results of the examination shall be made within thirty (30) days of such referral, and shall be final and binding on the parties (the "Final Closing Adjustment").
(d) To the extent the Final Closing Adjustment is less than the Closing Adjustment, Seller shall pay the difference in cash to Purchaser within five (5) days after the final determination. In the event the Final Closing Adjustment is greater than the Closing Adjustment, Purchaser shall pay such excess in cash to Seller within five (5) days after the final determination. If, following any payment pursuant to this Section 4.4(d), an error (in billing or reporting modified by NRTC or otherwise) is thereafter discovered which would have affected the Final Closing Adjustment, the party in whose favor the error was made shall immediately pay in cash the amount of such error to the other party.the
Appears in 1 contract
Sources: Membership Interest Purchase Agreement (Dynamics Research Corp)
Adjustment to Purchase Price. (a) The Closing Payment shall be increased by the parties' good faith estimate of the Current Assets of Seller and decreased by the parties' good faith estimate of the Current Liabilities of Seller As soon as of the Closing Date (the "Closing Adjustment"), which adjustment shall be subject to final adjustment as provided for in paragraph (c) below.
(b) No later than sixty (60) days after practicable following the Closing Date, or within three Zonagen shall deliver to Purchaser a balance sheet of the Business (3the "Determination Date Balance Sheet") as at the close of business on February 28, 1999 (the "Determination Date"). The Determination Date Balance Sheet shall be based upon the books and records of Seller, shall be prepared in accordance with GAAP applied on a basis consistent with the Financial Statements referred to in Section 3.8, and shall present fairly the financial position of the Business as of the Determination Date. Concurrently with the delivery of the Determination Date Balance Sheet, Zonagen shall deliver to Purchaser a notice (the "Current Assets and Current Liabilities Notice") specifying (i) the amount of current assets of the Business as of the Determination Date included in the Purchased Assets, excluding cash and cash equivalents (the "Determination Date Current Assets"), as determined by Zonagen in good faith based on the Determination Date Balance Sheet (the "Current Assets Determination") and (ii) the amount of current liabilities of the Business as of the Determination Date included in the Assumed Liabilities (the "Determination Date Current Liabilities"), as determined by Zonagen in good faith based on the Determination Date Balance Sheet (the "Current Liabilities Determination"). The Current Assets Determination and the Current Liabilities Determination shall become final (the "Final Current Assets and Current Liabilities Determination") thirty (30) days after receipt of the necessary accounting data from the NRTC Central Billing System, whichever is later, Purchaser shall make and deliver to Seller a balance sheet reflecting the Current Assets and Current Liabilities of Seller Notice is so delivered by Zonagen unless Purchaser sets forth any objection thereto in a written notice to Zonagen, which notice shall include the basis for Purchaser's objection to the Current Assets Determination or the Current Liabilities Determination, as the case may be, and Purchaser's own determination of the Closing Determination Date Current Assets or the Determination Date Current Liabilities during such thirty (30) day period, in which event the "Closing Date Balance Sheet"), prepared on a basis consistent with GAAP. For purposes of the Closing Adjustment and the Final Closing Adjustment (as hereinafter defined), the amount of Accounts Receivable of Seller to be included in the Closing Date Balance Sheet parties shall include only Accounts Receivable of Subscribers as reflected on Report 18A (Subscriber Accounts Receivable Aging By Account) of the NRTC Central Billing System Reports less a reserve of six percent (6%) for Accounts Receivable which are not collectible. In addition, the Closing Date Balance Sheet and the Final Closing Adjustment shall not include as a Current Asset any accounts receivable arising from Leased Subscriber Equipment. Purchaser may, by providing Seller with written notice at least five (5) days prior to the Closing, elect to purchase all, or certain of, the DSS(TM) subscriber equipment owned by Seller (other than Leased Subscriber Equipment) on the Closing Date; provided, however, Purchaser shall not have the right to acquire any assets attributable to Seller's Electric Business. Any such equipment which is purchased by Purchaser shall be included as Inventory in the Closing Date Balance Sheet. Except as set forth in this Section 4.4(b), no other assets or liabilities shall be included in the Closing Date Balance Sheet. Seller shall make available to Purchaser such documentation, back-up, invoices, and books and records of Seller as Purchaser may reasonably request.
(c) Seller and Purchaser shall negotiate endeavor in good faith to reconcile any discrepancies which may arise in connection with the determination of the Closing Date Balance Sheet. If Seller and Purchaser are unable to reconcile resolve such discrepancies, Seller shall have dispute within fifteen (15) days from presentment after such notice and failing such resolution to mutually agree upon a partner of a Big Five accounting firm to resolve such dispute promptly, and in no event later than 30 days after the Closing Date Balance Sheet by Purchaser to notify Purchaser if Seller wishes to have Purchaser's 15-day dispute resolution period, and whose determination examined. If Seller elects to have Purchaser's determination examined, it shall be submitted to the determination in Atlanta, Georgia, by the Certified Public Accounting firm of KMPG Peat Marwick (or any other independent Certified Public Accounting firm mutually acceptable to Seller and Purchaser), the cost of such examination to be paid fifty percent (50%) by Seller and fifty percent (50%) by Purchaser. The determination by Purchaser shall be final and binding on the parties unless Seller elects to have an examination as provided herein, in which case the results conclusive. The fees and expenses of the examination accounting firm selected to resolve any dispute with respect to either the Determination Date Current Assets or the Determination Date Current Liabilities, as the case may be, under this Section 1.6(a) shall be made within thirty borne equally by Purchaser and Zonagen.
(30b) Within 5 days of such referralthe Final Current Assets and Current Liabilities Determination, and Zonagen shall be final and binding on pay to Purchaser, by the parties delivery to Purchaser of a certified or bank cashier's check in New York Clearing House funds, payable to the order of Purchaser or, at Purchaser's option, by wire transfer of immediately available funds to an account designated by Purchaser, the amount, if any, by which $416,191 shall exceed the difference of the Determination Date Current Assets less the Determination Date Current Liabilities as so determined (the "Final Closing AdjustmentDetermination Date Working Capital").
(d) To . If the extent amount of the Final Closing Adjustment is less than the Closing Adjustment, Seller Determination Date Working Capital shall pay the difference in cash to Purchaser within five (5) days after the final determination. In the event the Final Closing Adjustment is greater than the Closing Adjustmentexceed $416,191, Purchaser shall pay such excess to Zonagen, by the delivery to Zonagen of a certified or bank cashier's check in cash New York Clearing House funds, payable to Seller within five (5) days after the final determination. Iforder of Zonagen or, following any payment pursuant at Zonagen's option, by wire transfer of immediately available funds to this Section 4.4(d)an account designated by Zonagen, an error (in billing or reporting by NRTC or otherwise) is thereafter discovered which would have affected the Final Closing Adjustment, the party in whose favor the error was made shall immediately pay in cash the amount of such error to the other partyexcess.
Appears in 1 contract
Adjustment to Purchase Price. (a) The Closing Payment 3.3.1 At the Closing, RHG’s Accounts Payable and Accrued Expenses, after giving effect to the application of amounts being contributed by Buyer to RHG as set forth in Section 7.3.2, shall not exceed $10,000,000. In the event RHG’s Accounts Payable and Accrued Expenses exceed $10,000,000, the amount of the Cash Consideration shall be reduced on a dollar for dollar basis for the amount of such excess. In the event that the amount by which the Accounts Payable and Accrued Expenses exceeds $10,000,000 is more than $1,000,000, the amount of the Shareholder Note shall be reduced on a dollar for dollar basis for the amount of such excess over $11,000,000. In the event RHG’s Accounts Payable and Accrued Expenses are less than $10,000,000, the amount of the Shareholder Note shall be increased on a dollar for dollar basis for the amount by which RHG’s Accounts Payable and Accrued Expenses are less than $10,000,000.
3.3.2 As soon as reasonably practicable, but not later than 10 business days before the parties' good faith estimate of anticipated Closing Date, RHG shall deliver to Buyer (i) schedules setting forth with specificity the Current Assets of Seller anticipated Accounts Payable and decreased by the parties' good faith estimate of the Current Liabilities of Seller Accrued Expenses expected to be due as of the Closing Date (the "Closing Adjustment"“Anticipated Amounts”), which adjustment (ii) supporting information with respect to the calculation of the Anticipated Amounts and (iii) a certificate of the Chief Executive Officer of RHG attesting to the manner of the calculation of the Anticipated Amounts. Within five business days thereafter, Buyer shall be subject to final adjustment as provided for in paragraph (c) below.
(b) No later than sixty (60) days after determine whether it agrees or disagrees with RHG’s calculations of the Anticipated Amounts. If Buyer does not agree with RHG’s calculations, it shall, on or before the fifth business day before the Closing Date, or within three (3) days after receipt provide RHG with schedules setting forth with specificity Buyer’s calculations of the necessary accounting data from Anticipated Amounts. Thereafter, between the NRTC Central Billing System, whichever is later, Purchaser shall make date that Buyer presents its schedules and deliver to Seller a balance sheet reflecting the Current Assets and Current Liabilities of Seller as of the Closing Date (the "Closing Date Balance Sheet"), prepared on a basis consistent with GAAP. For purposes of the Closing Adjustment and the Final Closing Adjustment (as hereinafter defined), the amount of Accounts Receivable of Seller to be included in the Closing Date Balance Sheet shall include only Accounts Receivable of Subscribers as reflected on Report 18A (Subscriber Accounts Receivable Aging By Account) of the NRTC Central Billing System Reports less a reserve of six percent (6%) for Accounts Receivable which are not collectible. In addition, the Closing Date Balance Sheet and the Final Closing Adjustment shall not include as a Current Asset any accounts receivable arising from Leased Subscriber Equipment. Purchaser may, by providing Seller with written notice at least five (5) days prior to the Closing, elect to purchase all, or certain of, the DSS(TM) subscriber equipment owned by Seller (other than Leased Subscriber Equipment) on the Closing Date; provided, however, Purchaser shall not have the right to acquire any assets attributable to Seller's Electric Business. Any such equipment which is purchased by Purchaser shall be included as Inventory in the Closing Date Balance Sheet. Except as set forth in this Section 4.4(b), no other assets or liabilities shall be included in the Closing Date Balance Sheet. Seller shall make available to Purchaser such documentation, back-up, invoices, RHG and books and records of Seller as Purchaser may reasonably request.
(c) Seller and Purchaser Buyer shall negotiate in good faith to reconcile resolve any discrepancies which may arise in connection with such disagreements before the determination Closing Date.
3.3.3 If after such discussions the parties are unable to reach an agreement as to the Anticipated Amounts to be outstanding as of the Closing Date Balance SheetDate, and as a result of such disagreement a reduction in the Cash Consideration and the amount of the Shareholder Note, if applicable, would be required under this Section 3.3, the parties shall calculate the reduction in the Cash Consideration and the Shareholder Note, if applicable, to Sellers based solely on Buyer’s calculations and such computation shall be used for purposes of determining the Purchase Price to be paid at the Closing Date. If Seller The amount by which the Cash Consideration is reduced shall be deposited in escrow with a party mutually acceptable to RHG and Purchaser are unable Buyer.
3.3.4 No later than 90 days following the Closing, Buyer shall deliver to reconcile such discrepancies, Seller shall have fifteen Sellers (15i) days from presentment schedules setting forth with specificity the actual Accounts Payable and Accrued Expenses due as of the Closing Date Balance Sheet by Purchaser Date, (ii) supporting information with respect to notify Purchaser if Seller wishes the calculation of the Accounts Payable and Accrued Expenses, and (iii) a certificate of the President of Buyer attesting to have Purchaser's determination examinedthe manner of the calculation of the Accounts Payable and Accrued Expenses. Within five business days thereafter, Sellers shall determine whether they agree or disagree with Buyer’s calculation of the Accounts Payable and Accrued Expenses. If Seller elects to have Purchaser's determination examinedSellers do not agree with the amount determined by Buyer, it Buyer and Sellers shall select an arbitrator, which shall be submitted to the determination in Atlanta, Georgia, by the Certified Public Accounting a firm of KMPG Peat Marwick independent certified public accountants mutually agreed upon by Buyer and Sellers (but not RHG’s or any other Buyer’s independent Certified Public Accounting firm mutually acceptable to Seller and Purchasercertified public accounting firms), to review such matters and request that such arbitrator determine the cost actual Accounts Payable and Accrued Expenses as of such examination to be paid fifty percent (50%) by Seller and fifty percent (50%) by Purchaserthe Closing Date. The determination by Purchaser arbitrator’s decision shall be final made as soon as practicable, but no later than 60 days after the arbitrator is retained. The decision of the arbitrator shall be issued in writing to Buyer and Sellers. The arbitrator’s decision shall be final, non-appealable and binding on the parties unless Seller elects to have an examination as provided herein, in which case the results of the examination shall be made within thirty (30) days of such referral, and shall be final and binding all parties. Based on the parties (the "Final Closing Adjustment").
(d) To the extent the Final Closing Adjustment is less than the Closing Adjustmentarbitrator’s decision, Seller shall pay the difference in cash to Purchaser within five (5) days after the final determination. In the event the Final Closing Adjustment is greater than the Closing Adjustment, Purchaser shall pay such excess in cash to Seller within five (5) days after the final determination. If, following any payment pursuant to this Section 4.4(d), an error (in billing or reporting by NRTC or otherwise) is thereafter discovered which would have affected the Final Closing Adjustment, the party in whose favor the error was made shall immediately pay in cash the amount of such error to the Cash Consideration paid and the Shareholder Note, if applicable, shall remain the same; Buyer will deliver additional Cash Consideration and a second Shareholder Note with the exact same terms as the Shareholder Note, if applicable, for the amount by which the Cash Consideration and the Shareholder Note, if applicable, were incorrectly reduced based on Buyer’s calculation of the Anticipated Amount or Sellers shall surrender the Shareholder Note for cancellation by Buyer in exchange for the reissuance of a new Shareholder Note in the reduced amount. In any event, RHG, on the one hand, and Sellers, on the other partyhand, shall pay 50% of the fees of the arbitrator.
Appears in 1 contract
Adjustment to Purchase Price. (a) The Closing Payment shall be increased by Purchase Price was determined based on the parties' good faith estimate of assumption that the Current Assets of Seller and decreased by the parties' good faith estimate of the Current Liabilities of Seller as of Working Capital at the Closing Date will be equal to the Target Working Capital. At least three Business Days prior to the Closing Date, Seller shall provide to Purchaser an estimated statement showing Current Assets, Current Liabilities and Working Capital (the "Closing AdjustmentEstimated Working Capital Statement"). The Parties agree that the Estimated Working Capital Statement shall include a Current Liability in the amount of $13,533.00 for accrued paid time off sick bank liabilities. If the amount of Working Capital reflected on the Estimated Working Capital Statement exceeds the Target Working Capital, which adjustment the Purchase Price payable at the Closing shall be subject to final adjustment as provided for in paragraph (c) belowadjusted upward by the amount of such excess. If the amount of Working Capital reflected on the Estimated Working Capital Statement is less than the Target Working Capital, the Purchase Price payable at the Closing shall be adjusted downward by the amount of such deficiency.
(b) No later than sixty The Purchase Price was determined based on the assumption that Closing Cash will be equal to the Cash Target. At least three Business Days prior to the Closing Date, Seller Representative shall provide to Purchaser an estimated statement showing Closing Cash (60the "Estimated Cash Statement"). If the amount of Closing Cash reflected on the Estimated Cash Statement exceeds the Cash Target, the Purchase Price payable at the Closing shall be adjusted upward by the amount of such excess.
(c) Within 75 days after the Closing Date, Purchaser will prepare and provide to Seller Representative the Closing Balance Sheet as well as a statement showing a calculation of Working Capital and Closing Cash as reflected on the Closing Balance Sheet. The Parties agree that such calculation of Working Capital shall include a Current Liability in the amount of $13,533.00 for paid accrued time off sick bank liabilities. If Seller Representative objects to Purchaser's calculation of Working Capital or Closing Cash as reflected in the Closing Balance Sheet, Seller Representative shall deliver to Purchaser within three (3) 10 days after receipt of the necessary accounting data Closing Balance Sheet (the "Objection Period"), a written statement describing their objections thereto. In the event that Seller Representative fails to deliver such written statement prior to the expiration of the Objection Period, the Closing Balance Sheet shall be final, conclusive and binding upon the Parties. In the event that Seller Representative delivers such written statement prior to the expiration of the Objection Period, Seller Representative and Purchaser will use all reasonable efforts to resolve any dispute. If a final resolution is not obtained within 30 days after Seller Representative delivered such written notice, either Seller Representative or Purchaser may submit any remaining disputes for resolution to the Arbitrating Accountants, which firm shall resolve such dispute within 30 days following its selection. The Arbitrating Accountants' determination of Working Capital and Closing Cash shall be final, conclusive and binding upon the Parties. Seller Representative, Seller and Purchaser shall cooperate with the Arbitrating Accountants in all respects, including providing the Arbitrating Accountants with all work papers and back-up materials used in preparation and review of their calculations of Working Capital. The fees, expenses and costs of the Arbitrating Accountants shall be borne equally by Seller and Seller Representative, on the one hand, and Purchaser on the other hand.
(d) Within 10 days after the earliest of (i) the expiration of the Objection Period, in the event no objection has been made, (ii) the mutual resolution of any dispute, in the event an objection has been made, or (iii) the delivery of the final calculation of Working Capital by the Arbitrating Accountants, the following shall occur: (A) Purchaser shall pay to Seller the amount by which Working Capital, as reflected on the Closing Balance Sheet, exceeds the Working Capital reflected in the Estimated Working Capital Statement, or Seller shall pay to Purchaser the amount by which Working Capital, as reflected on the Closing Balance Sheet, is less than the Working Capital reflected in the Estimated Working Capital Statement, and (B) Purchaser shall pay to Seller the amount by which the Closing Cash reflected in the Closing Balance Sheet exceeds its Closing Cash reflected in the Estimated Cash Statement, or Seller shall pay to Purchaser the amount by which the Closing Cash reflected on the Closing Balance Sheet is less than the Closing Cash reflected in the Estimated Cash Statement. Any such payment shall be with interest from the NRTC Central Billing SystemClosing Date until payment at a rate per annum equal to the Reference Rate in effect on the Closing Date. In any such case, whichever is laterthe amount of such payment, Purchaser if any, shall make and deliver be treated as an adjustment to Seller the Purchase Price.
(e) The Purchase Price shall be further subject to a balance sheet reflecting downward adjustment by the Current Assets and Current Liabilities amount of Seller all Funded Indebtedness of the Acquired Companies as of the Closing Date not reflected (i) in the "calculation of Working Capital, (ii) in the payments of Closing Date Balance Sheet"Indebtedness pursuant to Section 2.2(b), prepared on a basis consistent with GAAP. For purposes of the Closing Adjustment and the Final Closing Adjustment or (as hereinafter defined), the amount of Accounts Receivable of Seller to be included iii) in the payments of Closing Date Balance Sheet shall include only Accounts Receivable of Subscribers as reflected on Report 18A (Subscriber Accounts Receivable Aging By Account) of the NRTC Central Billing System Reports less a reserve of six percent (6%) for Accounts Receivable which are not collectible. In addition, the Closing Date Balance Sheet and the Final Closing Adjustment shall not include as a Current Asset any accounts receivable arising from Leased Subscriber Equipment. Purchaser may, by providing Seller with written notice at least five (5) days prior Expenses pursuant to the Closing, elect to purchase all, or certain of, the DSS(TM) subscriber equipment owned by Seller (other than Leased Subscriber Equipment) on the Closing Date; provided, however, Purchaser shall not have the right to acquire any assets attributable to Seller's Electric Business. Any such equipment which is purchased by Purchaser shall be included as Inventory in the Closing Date Balance Sheet. Except as set forth in this Section 4.4(b), no other assets or liabilities shall be included in the Closing Date Balance Sheet. Seller shall make available to Purchaser such documentation, back-up, invoices, and books and records of Seller as Purchaser may reasonably request.
(c) Seller and Purchaser shall negotiate in good faith to reconcile any discrepancies which may arise in connection with the determination of the Closing Date Balance Sheet. If Seller and Purchaser are unable to reconcile such discrepancies, Seller shall have fifteen (15) days from presentment of the Closing Date Balance Sheet by Purchaser to notify Purchaser if Seller wishes to have Purchaser's determination examined. If Seller elects to have Purchaser's determination examined, it shall be submitted to the determination in Atlanta, Georgia, by the Certified Public Accounting firm of KMPG Peat Marwick (or any other independent Certified Public Accounting firm mutually acceptable to Seller and Purchaser), the cost of such examination to be paid fifty percent (50%) by Seller and fifty percent (50%) by Purchaser. The determination by Purchaser shall be final and binding on the parties unless Seller elects to have an examination as provided herein, in which case the results of the examination shall be made within thirty (30) days of such referral, and shall be final and binding on the parties (the "Final Closing Adjustment"2.2(c).
(df) To the extent the Final Closing Adjustment is less than On or before June 30, 2017, Purchaser shall pay Seller an amount equal to all warranty reserves on the Closing AdjustmentBalance Sheet attributable to any warranty periods that expired since the date of the Closing Balance Sheet, net of any warranty expenses that were incurred prior to the expiration of such warranty periods. Such payment shall constitute an upward adjustment to the Purchase Price. On or before June 30, 2017, Seller shall pay Purchaser an amount equal to all warranty obligations on a project incurred by Purchaser in excess of the difference in cash to Purchaser within five (5) days after the final determination. In the event the Final Closing Adjustment is greater than warranty reserve included on the Closing Adjustment, Purchaser Balance Sheet for such project. Such payment shall pay such excess in cash to Seller within five (5) days after the final determination. If, following any payment pursuant to this Section 4.4(d), an error (in billing or reporting by NRTC or otherwise) is thereafter discovered which would have affected the Final Closing Adjustment, the party in whose favor the error was made shall immediately pay in cash the amount of such error constitute a downward adjustment to the other partyPurchase Price.
Appears in 1 contract
Sources: Membership Interest Purchase Agreement (Matrix Service Co)
Adjustment to Purchase Price. (a) The Not later than five (5) business days prior to the Closing Payment Date, the Company shall be increased by the parties' in good faith estimate prepare an estimated balance sheet of the Current Assets of Seller and decreased by the parties' good faith estimate of the Current Liabilities of Seller Company as of the Closing Date December 31, 2002 (the "Closing AdjustmentBalance Sheet"). The Closing Balance Sheet shall be prepared in accordance with GAAP consistently applied, reflecting the Company as an S corporation and otherwise consistent with the methodology used to prepare the Company's Base Balance Sheet (as defined in Section 2.6(a)); provided that a deferred liability shall be reflected on the Closing Balance Sheet with respect to any deferred taxes, and a prepaid asset shall be reflected on the Closing Balance Sheet with respect to any prepaid taxes, as a result of timing differences between book income and taxable income as would generally be reflected on Schedule M-1 of the U.S. federal income tax return (Form 1120S) of the Company. Not later than five (5) business days prior to the Closing Date, the Company shall deliver to Buyer the Closing Balance Sheet, together with worksheets and data that support the Closing Balance Sheet and any other information that Buyer may reasonably request in order to verify the amounts reflected on the Closing Balance Sheet. The Purchase Price to be paid at the Closing shall be adjusted, dollar for dollar, up or down, as appropriate, to the extent that the Net Worth set forth on the Closing Balance Sheet (the "Estimated Closing Net Worth") exceeds or is less than $7,000,000.00 (the "Base Net Worth"), which adjustment shall be subject to final adjustment as provided for in paragraph (c) belowapplicable.
(b) No later than sixty Within thirty (6030) days after the Closing Date, or within three the Stockholders shall cause Madsen, Sapp, Mena, Rodriquez & Co., P.A. (3"Accountant") days after receipt of the necessary accounting data from the NRTC Central Billing System, whichever is later, Purchaser shall make and deliver to Seller a balance sheet reflecting the Current Assets and Current Liabilities of Seller as of audit the Closing Date Balance Sheet and make any adjustments ne▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ (the "Closing Date Audited Balance Sheet"), prepared on a basis ) consistent with GAAPthe provisions of this Section 1.3. For purposes The fees and expenses of the Closing Adjustment and the Final Closing Adjustment (as hereinafter defined), the amount of Accounts Receivable of Seller to be included in the Closing Date Balance Sheet shall include only Accounts Receivable of Subscribers as reflected on Report 18A (Subscriber Accounts Receivable Aging By Account) of the NRTC Central Billing System Reports less a reserve of six percent (6%) for Accounts Receivable which are not collectible. In addition, the Closing Date Balance Sheet and the Final Closing Adjustment shall not include as a Current Asset any accounts receivable arising from Leased Subscriber Equipment. Purchaser may, by providing Seller with written notice at least five (5) days prior to the Closing, elect to purchase all, or certain of, the DSS(TM) subscriber equipment owned by Seller (other than Leased Subscriber Equipment) on the Closing Date; provided, however, Purchaser shall not have the right to acquire any assets attributable to Seller's Electric Business. Any such equipment which is purchased by Purchaser Accountant shall be included as Inventory in the Closing Date Balance Sheet. Except as set forth in this Section 4.4(b), no other assets or liabilities shall be included in the Closing Date Balance Sheet. Seller shall make available to Purchaser such documentation, back-up, invoices, and books and records of Seller as Purchaser may reasonably request.
(c) Seller and Purchaser shall negotiate in good faith to reconcile any discrepancies which may arise in connection with the determination of the Closing Date Balance Sheet. If Seller and Purchaser are unable to reconcile such discrepancies, Seller shall have fifteen (15) days from presentment of the Closing Date Balance Sheet by Purchaser to notify Purchaser if Seller wishes to have Purchaser's determination examined. If Seller elects to have Purchaser's determination examined, it shall be submitted to the determination in Atlanta, Georgia, borne by the Certified Public Accounting firm of KMPG Peat Marwick (or any other independent Certified Public Accounting firm mutually acceptable to Seller and Purchaser), the cost of such examination to be paid fifty percent (50%) by Seller and fifty percent (50%) by PurchaserCompany. The determination by Purchaser Stockholders shall be final and binding on cause the parties unless Seller elects to have an examination as provided hereinAccountant, in which case the results of the examination shall be made within thirty (30) days of such referralthe Closing, to deliver the Audited Balance Sheet to the Buyer, together with worksheets which detail any adjustments and the basis thereof.
(i) The Audited Balance Sheet, and the Net Worth as of December 31, 2002 reflected thereon, shall be final binding upon the parties upon the written approval of such Audited Balance Sheet by the Buyer or the failure to object in writing within fifteen (15) days after receipt of the Audited Balance Sheet.
(ii) If the Buyer does not agree with the Audited Balance Sheet and binding the calculation of Net Worth stated thereon, and Buyer and Stockholders' Representative cannot mutually agree on the parties same, then within seventy-five (75) days following receipt by the Buyer of the Audited Balance Sheet, KPMG, LLP or such other nationally recognized independent accounting firm mutually satisfactory to Buyer and the Stockholders' Representative (the "Final Neutral Auditor") shall resolve such dispute. The Neutral Auditor shall review the Audited Balance Sheet and, within ten (10) business days of its appointment, shall make any adjustments necessary thereto, and, upon completion of such review, such Audited Balance Sheet and the Net Worth as of December 31, 2002 as determined by the Neutral Auditor shall be binding upon the parties. If such a review is conducted, then the party (i.e., Buyer, on the one hand, or the Stockholders, on the other hand) whose last proposed written offer for the settlement of the items in dispute, taken as a whole, was farther away from the final determination by the Neutral Auditor pursuant to the preceding sentence, shall pay all fees and expenses associated with such review. The Net Worth reflected in the Audited Balance Sheet pursuant to this subsection (b) is referred to herein as (the “Closing Adjustment"Net Worth”).
(dc) To Within three (3) business days following determination of the extent Closing Net Worth in accordance with Section 1.3(b), (i) in the Final event the Closing Adjustment Net Worth is less than the Estimated Closing AdjustmentNet Worth, Seller each Stockholder shall pay to Buyer an amount equal to such Stockholder's pro rata share (as set forth opposite such Stockholder's name in column 3 of Exhibit A attached hereto) of the difference between such amounts and, (ii) in cash to Purchaser within five (5) days after the final determination. In the event the Final Closing Adjustment Net Worth is greater than the Estimated Closing AdjustmentNet Worth, Purchaser Buyer shall pay to each Stockholder an amount equal to such excess Stockholder's pro rata share of the difference between such amounts (as set forth opposite such Stockholder's name in cash column 3 of Exhibit A attached hereto), in each case by wire transfer of immediately available funds. The difference between the Base Net Worth and the Closing Net Worth is referred to Seller within five as the "Net Worth Adjustment Amount."
(5d) days after the final determination. If, following any payment pursuant to As used in this Section 4.4(d)1.3, an error ("Net Worth" means total assets minus total liabilities of the Company, in billing or reporting by NRTC or otherwise) is thereafter discovered which would have affected the Final Closing Adjustmenteach case as determined in accordance with GAAP, the party in whose favor the error was made shall immediately pay in cash the amount of such error to the other partyconsistently applied.
Appears in 1 contract
Adjustment to Purchase Price. (a) The Attached hereto as Schedule 2.4(a) is a statement of the estimated Net Working Capital of the Business as of December 31, 1997, prepared in accordance with IAS and A-L's accounting policies applied on a consistent basis with the Financial Statements (the "Preliminary NWC Statement"). Not later than three (3) business days prior to the Closing Payment Date, the Seller shall UNITED STATES conduct an inventory of the Business, observed by the Buyer, and at Closing shall furnish to Buyer (i) an estimate of the Net Working Capital of the Business calculated as of the close of business on the Closing Date, prepared in accordance with IAS and A-L's accounting policies applied on a consistent basis with the Financial Statements (as defined in Section 3.7 below) and the Preliminary NWC Statement (the "ESTIMATED NWC STATEMENT"), PROVIDED, HOWEVER, that the EstimatedNWC Statement will take into account only information within the Knowledge of the Seller with respect to the Business on the Closing Date; and (ii) a calculation of any required adjustment to the Purchase Price pursuant to Section 2.4(b) hereof.
(b) If the value of the Net Working Capital as reflected in the Estimated NWC Statement is less than $6,985,000 (SIX MILLION NINE-HUNDRED EIGHTY-FIVE THOUSAND DOLLARS), the Purchase Price paid to the Seller at Closing shall be decreased by the full amount of such deficiency. If the value of the Net Working Capital as reflected in the Estimated NWC Statement exceeds $6,985,000 (SIX MILLION NINE-HUNDRED EIGHTY-FIVE THOUSAND DOLLARS), the Purchase Price paid to the Seller at Closing shall be increased by the parties' good faith estimate full amount of such excess.
(c) Within twenty-one (21) days following the Current Assets Closing, the Seller shall prepare and deliver to Buyer a statement of Seller and decreased by the parties' good faith estimate of the Current Liabilities of Seller Net Working Capital, as of the Closing Date (the "Closing Adjustment"), which adjustment shall be subject to final adjustment as provided for in paragraph (c) below.
(b) No later than sixty (60) days after the Closing Date, or within three (3) days after receipt of the necessary accounting data from the NRTC Central Billing System, whichever is later, Purchaser shall make and deliver to Seller a balance sheet reflecting the Current Assets and Current Liabilities of Seller as of the Closing Date (the "Closing Date Balance Sheet"), prepared on a basis consistent with GAAP. For purposes of the Estimated NWC Statement (the "Closing Adjustment and the Final Closing Adjustment (as hereinafter definedNWC Statement"), the amount of Accounts Receivable of Seller to be included in the Closing Date Balance Sheet shall include only Accounts Receivable of Subscribers as reflected on Report 18A (Subscriber Accounts Receivable Aging By Account) of the NRTC Central Billing System Reports less a reserve of six percent (6%) for Accounts Receivable which are not collectible. In addition, the Closing Date Balance Sheet and the Final Closing Adjustment shall not include as a Current Asset any accounts receivable arising from Leased Subscriber Equipment. Purchaser may, by providing Seller with written notice at least five (5) days prior to the Closing, elect to purchase all, or certain of, the DSS(TM) subscriber equipment owned by Seller (other than Leased Subscriber Equipment) on the Closing Date; provided, however, Purchaser shall not have the right to acquire any assets attributable to Seller's Electric Business. Any such equipment which is purchased by Purchaser shall be included as Inventory in the Closing Date Balance Sheet. Except as set forth in this Section 4.4(b), no other assets or liabilities shall be included in the Closing Date Balance Sheet. Seller shall make available to Purchaser such documentation, back-up, invoices, and books and records of Seller as Purchaser may reasonably request.
(ci) The Closing NWC Statement shall become final and binding on Seller and Purchaser Buyer (in such event, the "Final Closing Statement")unless Buyer gives written notice to the Seller of its disagreement with respect to any matter contained therein (the "NOTICE OF DISAGREEMENT") within thirty (30) days after the receipt thereof by Buyer. A Notice of Disagreement shall negotiate not be permitted unless the aggregate amount in good faith dispute exceeds Ten Thousand Dollars ($10,000) and shall not be permitted with respect to reconcile any discrepancies which may arise in connection with the determination inventory count (but not the valuation of the Closing Date Balance Sheetinventory) observed by Buyer pursuant to Section 2.4(a). If Seller and Purchaser are unable to reconcile such discrepancies, Seller A Notice of Disagreement shall have specify in reasonable detail the nature of any disagreement so asserted. For a period of fifteen (15) days from presentment after the delivery of the Closing Date Balance Sheet by Purchaser to notify Purchaser if Seller wishes to have Purchaser's determination examined. If Seller elects to have Purchaser's determination examinedNotice of Disagreement, it shall be submitted to the determination in Atlanta, Georgia, by the Certified Public Accounting firm of KMPG Peat Marwick (or any other independent Certified Public Accounting firm mutually acceptable to Seller and Purchaser)the Buyer shall attempt to resolve in writing all of their differences with respect to each matter specified in the Notice of Disagreement, the cost of in which case any such examination to be paid fifty percent (50%) by Seller and fifty percent (50%) by Purchaser. The determination by Purchaser resolution shall be final and binding on the parties.
(ii) If, at the end of such 15-day period, the Seller and the Buyer have not resolved in writing all of their differences with respect to any such matter, then each unresolved matter (the "DISPUTED MATTER") shall be submitted to and reviewed by a neutral "big six" accounting firm mutually agreeable to the parties unless Seller elects to have an examination as provided herein, in and which case the results is independent of the examination Buyer, the Seller and their respective Affiliates (the "NEUTRAL ACCOUNTANTS"). The Neutral Accountants shall be made consider only the Disputed Matters and shall resolve all Disputed Matters in writing within thirty (30) days of such referralsubmission, and its decisions with respect to the Disputed Matters, which shall be based on the accounting policies and principles and the proviso set forth in Section 2.4(a)(i) above, shall be final and binding on the parties Seller and the Buyer; PROVIDED THAT, no such resolution of the Disputed Matter shall require payment of an amount greater than the highest amount or less than the lowest amount suggested for such resolution by either the Seller or the Buyer. The Neutral Accountants shall notify the Seller and the Buyer of their resolution of the Disputed Matters, and upon receipt thereof by the Neutral UNITED STATES Accountants, the Neutral Accountants shall promptly prepare a final Closing NWC Statement reflecting the resolution of all Disputed Matters promptly after such resolution (in such event, the "Final Closing AdjustmentFINAL CLOSING STATEMENT")) and shall deliver it to the Buyer and the Seller.
(de) To The Seller and the extent Buyer shall each be responsible for and shall each pay one-half of the fees and expenses incurred in connection with the Neutral Accountants.
(f) Within ten (10) days after receipt of the Final Closing Adjustment Statement:
(i) If the Net Working Capital as set forth in the Final Closing Statement is less than the Closing AdjustmentNet Working Capital as set forth in the Estimated NWC Statement, the Seller shall pay to the difference Buyer the difference, first by giving instructions to the Escrow Agent to distribute up to $200,000 from any remaining Escrow Fund (as such term is defined in cash the Escrow Agreement), and then any additional amounts shall be paid by the Seller to Purchaser within five the Buyer on demand in immediately available funds; provided that, notwithstanding the foregoing, the aggregate amount of the Escrow Fund to be distributed for this purpose and for the purpose of any Net Working Capital adjustment, if any, under the LMP Canada Acquisition Agreement shall not exceed $200,000.
(5ii) days after If the final determination. In the event Net Working Capital as set forth in the Final Closing Adjustment Statement is greater than the Closing AdjustmentNet Working Capital as set forth in the Estimated NWC Statement, Purchaser the Buyer shall pay such excess to the Seller the difference in cash immediately available funds.
(g) Any payment required to Seller within five (5) days after the final determination. If, following any payment be made pursuant to this Section 4.4(d), an error (in billing or reporting by NRTC or otherwise) is thereafter discovered which would have affected 2.4 shall be made together with simple interest thereon from the Final Closing Adjustment, the party in whose favor the error was made shall immediately pay in cash the amount of such error Date to the other partydate of payment at the annual rate (calculated on the basis of a 365-day year) equal to the prime rate published by the WALL STREET JOURNAL, Eastern Edition on the Closing Date.
Appears in 1 contract
Adjustment to Purchase Price. (a) The Closing Payment shall be increased by the parties' good faith estimate of the Current Assets of Seller and decreased by the parties' good faith estimate of the Current Liabilities of Seller as of the Closing Date Within ninety (the "Closing Adjustment"), which adjustment shall be subject to final adjustment as provided for in paragraph (c90) below.
(b) No later than sixty (60) calendar days after the Closing Date, or within three (3) days after receipt of the necessary accounting data from the NRTC Central Billing System, whichever is later, Purchaser shall make and deliver to Seller a balance sheet of the Business reflecting the Current Assets assets and Current Liabilities of Seller the Business as of the close of business on the date immediately prior to the Closing Date (including a calculation of Net Worth will be prepared by Buyer and delivered to Seller. Such balance sheet, as adjusted, is referred to herein as the "Closing Date Balance Sheet"), prepared on a basis consistent with GAAP. For purposes of the Closing Adjustment and the Final Closing Adjustment (as hereinafter defined), the amount of Accounts Receivable of Seller to be included in the ." The Closing Date Balance Sheet shall include only Accounts Receivable of Subscribers as reflected on Report 18A be prepared in a manner consistent with the Reference Date Balance Sheet (Subscriber Accounts Receivable Aging By Accountincluding with respect to adjustment procedures, discretionary allocations and other judgments) and shall reflect the consolidation of the NRTC Central Billing System Reports less a reserve assets and Liabilities of six percent (6%) for Accounts Receivable which are not collectible. In additionAcquired Companies and the Business in accordance with GAAP; provided, however, that, notwithstanding anything contained on the Reference Date Balance Sheet or herein to the contrary, the Closing Date Balance Sheet and the Final Closing Adjustment (i) shall not include any intercompany accounts as a Current Asset between any accounts receivable arising from Leased Subscriber Equipment. Purchaser mayof the Acquired Companies, by providing Seller with written notice at least five (5) days prior to on the Closingone hand, elect to purchase all, and Parent or certain of, the DSS(TM) subscriber equipment owned by any subsidiary or Affiliate of Seller (other than Leased Subscriber Equipment) the Acquired Companies), on the Closing Dateother hand, including, without limitation, the Intergroup Receivables; provided, however, Purchaser (ii) shall not include any purchase accounting adjustments; (iii) shall not contain any Excluded Liabilities or any Liabilities related to indebtedness (other than capital lease obligations), including, without limitation, the Barclays Debt; (iv) shall not include any Liability underlying the obligations of the Acquired Companies with respect to the Continued Employee Payment or the Chameleon Payment (it being agreed that such Liabilities and corresponding payments shall be determined and paid pursuant to Section 2.2(c)); (v) shall include only such inventory that is (A) reflected on the Reference Date Balance Sheet or has been manufactured since the Reference Date, and (B) located at the Andover Facility or such other locations designated by Buyer. All foreign currency amounts shall be expressed in United States dollars using the exchange rate and conversion mechanism as required by GAAP; and (vi) shall include as an accrued expense for unpaid Taxes for the 1998 and 1999 Tax years an amount equal to that shown on the Reference Date Balance Sheet for such Tax years (for the avoidance of doubt, it is agreed among the parties that any deficiencies of such accrual shall be resolved on a dollar-for-dollar basis pursuant to the 1998/1999 Tax Make-Whole Payment under Section 2.2(c) or, as necessary, the indemnification rights under Section 14.3). Parent shall have the right to acquire any assets attributable review the computations and work papers (including access to Selleraccountants' work papers, subject to such confidentiality restrictions and indemnities as Buyer's Electric Business. Any such equipment which is purchased by Purchaser accountants shall be included as Inventory in the Closing Date Balance Sheet. Except as set forth in this Section 4.4(b), no other assets or liabilities shall be included in the Closing Date Balance Sheet. Seller shall make available to Purchaser such documentation, back-up, invoices, reasonably request) and underlying books and records of Seller as Purchaser may reasonably request.
(c) Seller and Purchaser shall negotiate in good faith to reconcile any discrepancies which may arise used in connection with the determination of the Closing Date Balance Sheet. If Seller and Purchaser are unable to reconcile such discrepancies, Seller shall have fifteen (15) days from presentment Buyer's preparation of the Closing Date Balance Sheet by Purchaser to notify Purchaser if Seller wishes and to have Purchaser's determination examined. If Seller elects to have Purchaser's determination examined, it shall be submitted access to the determination key employees and independent accountants of Buyer in Atlanta, Georgia, connection therewith. Buyer shall maintain separate books and records for the Business until such time as any post-Closing adjustment under this Section 2.3 has been paid by the Certified Public Accounting firm of KMPG Peat Marwick (or any other independent Certified Public Accounting firm mutually acceptable to Seller and Purchaser), the cost of such examination to be paid fifty percent (50%) by Seller and fifty percent (50%) by Purchaser. The determination by Purchaser shall be final and binding on the parties unless Seller elects to have an examination as provided herein, in which case the results of the examination shall be made within thirty (30) days of such referral, and shall be final and binding on the parties (the "Final Closing Adjustment").
(d) To the extent the Final Closing Adjustment is less than the Closing Adjustment, Seller shall pay the difference in cash to Purchaser within five (5) days after the final determination. In the event the Final Closing Adjustment is greater than the Closing Adjustment, Purchaser shall pay such excess in cash to Seller within five (5) days after the final determination. If, following any payment pursuant to this Section 4.4(d), an error (in billing or reporting by NRTC or otherwise) is thereafter discovered which would have affected the Final Closing Adjustment, the party in whose favor the error was made shall immediately pay in cash the amount of such error to the other relevant party.
Appears in 1 contract
Sources: Purchase Agreement (NMT Medical Inc)
Adjustment to Purchase Price. (a) The Not later than three (3) Business Day prior to the Closing Payment shall be increased Date, the Company will deliver to the Buyer a certificate signed by an officer of the parties' Company (the “Preliminary Statement”) setting forth the Company’s good faith estimate of (i) the Current Assets of Seller and decreased by the parties' good faith estimate Net Working Capital as of the Current Liabilities close of Seller as of business on the Closing Date (the "“Estimated Net Working Capital”) and (ii) the balance sheet for the Company as of the close of business on the Closing Date (the “Closing Balance Sheet”). The Purchase Price will be adjusted (up or down) at the Closing by the amount of the “Closing Adjustment"), which adjustment shall be subject ” equal to final adjustment as provided for in paragraph (c) belowthe Estimated Net Working Capital set forth on the Preliminary Statement minus the Target Net Working Capital.
(b) No later than sixty (60) days after following the Closing Date, or within three (3) days after receipt of the necessary accounting data from the NRTC Central Billing System, whichever is later, Purchaser shall make Buyer will prepare and deliver to Seller a balance sheet reflecting the Current Assets Sellers’ Representative the Buyer’s good faith determination of the Closing Balance Sheet and Current Liabilities of Seller actual Net Working Capital as of the Closing Date (the "Closing Date Balance Sheet"), prepared on a basis consistent with GAAP. For purposes close of the Closing Adjustment and the Final Closing Adjustment (as hereinafter defined), the amount of Accounts Receivable of Seller to be included in the Closing Date Balance Sheet shall include only Accounts Receivable of Subscribers as reflected on Report 18A (Subscriber Accounts Receivable Aging By Account) of the NRTC Central Billing System Reports less a reserve of six percent (6%) for Accounts Receivable which are not collectible. In addition, the Closing Date Balance Sheet and the Final Closing Adjustment shall not include as a Current Asset any accounts receivable arising from Leased Subscriber Equipment. Purchaser may, by providing Seller with written notice at least five (5) days prior to the Closing, elect to purchase all, or certain of, the DSS(TM) subscriber equipment owned by Seller (other than Leased Subscriber Equipment) business on the Closing Date; provided, however, Purchaser shall not have the right to acquire any assets attributable to Seller's Electric Business. Any such equipment which is purchased by Purchaser shall be included as Inventory in the Closing Date Balance Sheet. Except as set forth in this Section 4.4(b), no other assets or liabilities shall be included in the Closing Date Balance Sheet. Seller shall make available to Purchaser such documentation, back-up, invoices, and books and records identifying any adjustments to the Purchase Price under Section 2.3(c) as a result of Seller such determinations. The Buyer must prepare such information by applying GAAP (as Purchaser may reasonably request.
(cmodified by the definition of “Net Working Capital”) Seller and Purchaser shall negotiate and, to the extent consistent with GAAP, in good faith to reconcile any discrepancies which may arise in connection a manner consistent with the determination of the Closing Date Balance SheetCompany’s past accounting practices. If Seller and Purchaser are unable to reconcile such discrepancies, Seller shall have fifteen (15) days from presentment of the Closing Date Balance Sheet by Purchaser to notify Purchaser if Seller wishes to have Purchaser's determination examined. If Seller elects to have Purchaser's determination examined, it shall be submitted Sellers’ Representative does not object to the determination in Atlanta, Georgia, by the Certified Public Accounting firm of KMPG Peat Marwick (or any other independent Certified Public Accounting firm mutually acceptable to Seller and Purchaser), the cost of such examination to be paid fifty percent (50%) by Seller and fifty percent (50%) by Purchaser. The determination by Purchaser shall be final and binding on the parties unless Seller elects to have an examination as provided herein, in which case the results of the examination shall be made Buyer’s determinations within thirty (30) days after receipt thereof, or accepts such determinations in writing during such thirty (30)-day period, the Purchase Price will be adjusted as set forth in the Buyer’s notice of its determinations, and payment made in accordance with Section 2.3(c). If the Sellers’ Representative objects to all or part of the Buyer’s determinations, the Sellers’ Representative will notify the Buyer in writing of such referral, and shall be final and binding on the parties objections within thirty (the "Final Closing Adjustment").
(d) To the extent the Final Closing Adjustment is less than the Closing Adjustment, Seller shall pay the difference in cash to Purchaser within five (530) days after the final determinationSellers’ Representative’s receipt thereof (such notice setting forth in reasonable detail the basis for such objections). In During such thirty (30)-day period, the event Buyer will permit the Final Closing Adjustment is greater than Sellers’ Representative access to such work papers relating to the Closing Adjustment, Purchaser shall pay preparation of the Buyer’s determinations as may be reasonably necessary to review in detail the manner in which the Buyer’s determinations were prepared. The Buyer and the Sellers’ Representative will thereafter negotiate in good faith to resolve any such excess in cash objections. If the Buyer and the Sellers’ Representative are unable to Seller resolve all of such differences within five twenty (520) days after the final determinationBuyer’s receipt of the Sellers’ Representative’s objections, either the Buyer or the Sellers’ Representative may require the other party to resolve such dispute by way of the Dispute Resolution Procedure by providing such other party written notice of such demand. IfThe term “Final Net Working Capital” means the definitive Net Working Capital, following any payment as it is finally determined pursuant to this Section 4.4(d2.3(b), an error (in billing or reporting by NRTC or otherwise) is thereafter discovered which would have affected the Final Closing Adjustment, the party in whose favor the error was made shall immediately pay in cash the amount of such error to the other party.
Appears in 1 contract
Sources: Stock Purchase Agreement (NCI, Inc.)
Adjustment to Purchase Price. (a) The Closing Payment No later than forty-five (45) days after the Closing, Purchaser shall be increased by the parties' good faith estimate calculate a "square up" of the Current Assets of Seller revenues and decreased by the parties' good faith estimate expenses of the Current Liabilities of Seller Business, as of the Closing Date further described below (the "Post- Closing Adjustment"). Purchaser shall send a copy of this calculation to Seller and request Seller's consent that the Post-Closing Adjustment is accurate. Seller shall have five (5) business days to deliver such written consent to Purchaser (the "Consent Notice") or send written notice to Purchaser of Seller's disagreement (the "Dispute Notice"). If Seller disagrees, which adjustment shall be subject to final adjustment as provided for the provisions in paragraph subsection (c) below.below shall govern the dispute resolution process
(b) No later than sixty (60) days The Post-Closing Adjustment shall be an amount equal to the Business revenues collected on or after the Closing Effective Date which are attributable to services provided by Seller prior to the Effective Date, or within three less the total Business expenses generated by Seller prior to the Effective Date. To the extent that the Post-Closing Adjustment, as calculated above, is more than thirty-thousand dollars (3) days after receipt of the necessary accounting data from the NRTC Central Billing System, whichever is later$30,000), Purchaser shall make and deliver pay to Seller a balance sheet reflecting the Current Assets and Current Liabilities of Seller as of the Closing Date (the "Closing Date Balance Sheet"), prepared on a basis consistent with GAAP. For purposes of the Closing Adjustment and the Final Closing Adjustment (as hereinafter defined), the excess amount of Accounts Receivable of Seller to be included in the Closing Date Balance Sheet shall include only Accounts Receivable of Subscribers as reflected on Report 18A (Subscriber Accounts Receivable Aging By Account) of the NRTC Central Billing System Reports less a reserve of six percent (6%) for Accounts Receivable which are not collectible. In addition, the Closing Date Balance Sheet and the Final Closing Adjustment shall not include as a Current Asset any accounts receivable arising from Leased Subscriber Equipment. Purchaser may, by providing Seller with written notice at least within five (5) business days prior to the Closing, elect to purchase all, or certain of, the DSS(TM) subscriber equipment owned by Seller (other than Leased Subscriber Equipment) on the Closing Date; provided, however, Purchaser shall not have the right to acquire any assets attributable to of Purchaser's receipt of Seller's Electric BusinessConsent Notice. Any such equipment which To the extent that the Post-Closing Adjustment, as calculated above, is purchased by Purchaser shall be included as Inventory in the Closing Date Balance Sheet. Except as set forth in this Section 4.4(bless than thirty-thousand dollars ($30,000), no other assets Seller or liabilities Selling Shareholder shall be included in the Closing Date Balance Sheet. Seller shall make available pay to Purchaser such documentation, back-up, invoices, and books and records the amount of Seller as Purchaser may reasonably requestthe deficiency within five (5) business days of the date of Seller's Consent Notice.
(c) The Post-Closing Adjustment shall be final, conclusive and binding upon the parties unless (i) Seller sends a Dispute Notice within the time frame set forth in subsection (a) above and (ii) such Dispute Notice provides Purchaser shall negotiate in good faith to reconcile any discrepancies which may arise in connection with the determination a reasonably detailed explanation of the basis of Seller's objection and Seller's proposal for any adjustment to the Adjustment Notice. Purchaser and Seller will use their best efforts to resolve any disagreements as to the amount of the Post- Closing Date Balance SheetAdjustment. If Purchaser and Seller and Purchaser are unable to reconcile such discrepancies, Seller shall have fifteen reach agreement with respect to the final amount of the Post-Closing Adjustment within twenty (1520) days from presentment after delivery of the Closing Date Balance Sheet Dispute Notice, then Purchaser shall refer such disagreement (no later than twenty-five (25) days after delivery of the Dispute Notice) to a nationally recognized accounting firm (the "Accounting Firm") selected by Purchaser and Seller to notify Purchaser if Seller wishes act as an arbitrator to have Purchaser's determination examineddetermine all remaining points of disagreement with respect to the Post-Closing Adjustment. If Seller elects Each party shall provide the Accounting Firm with access to have Purchaser's determination examined, it all pertinent information and personnel and with access to its work papers. All determinations made by the Accounting Firm with respect to the Post-Closing Adjustment shall be submitted to the determination in Atlantafinal, Georgia, by the Certified Public Accounting firm of KMPG Peat Marwick (or any other independent Certified Public Accounting firm mutually acceptable to Seller and Purchaser), the cost of such examination to be paid fifty percent (50%) by Seller and fifty percent (50%) by Purchaser. The determination by Purchaser shall be final conclusive and binding on Purchaser and Seller. The fees and expenses charged by the parties unless Seller elects to have an examination as provided herein, in which case the results of the examination Accounting Firm shall be made within thirty (30) days of such referral, paid one-half by Purchaser and shall be final and binding on the parties (the "Final Closing Adjustment")one-half by Seller.
(d) To the extent the Final Closing Adjustment is less than the Closing Adjustment, Seller shall pay the difference in cash to Purchaser within five (5) days after the final determination. In the event the Final Closing Adjustment is greater than the Closing Adjustment, Purchaser shall pay such excess in cash to Seller within five (5) days after the final determination. If, following any payment pursuant to this Section 4.4(d), an error (in billing or reporting by NRTC or otherwise) is thereafter discovered which would have affected the Final Closing Adjustment, the party in whose favor the error was made shall immediately pay in cash the amount of such error to the other party.
Appears in 1 contract
Adjustment to Purchase Price. The Company has provided to the Parent a true and correct copy of an unaudited balance sheet of the Company, consolidated with PEcoS, as of January 31, 2007, which balance sheet has been prepared in good faith and in accordance with GAAP and adjusted on a pro forma basis as though all of the assets constituting the Pre-Closing Distributions (aas defined in paragraph 9.23) had been transferred, dividended, assigned or distributed by the Company pursuant to the terms of paragraph 9.23 prior to January 31, 2007 (the “Adjusted January 31, 2007 Balance Sheet”). The Adjusted January 31, 2007 Balance Sheet shows the amount of “Net Assets” (for the purposes of this paragraph 1.5.4“Net Assets” is that amount which is the resultant amount determined by subtracting from Total Assets, excluding from Total Assets all of the assets constituting the Pre-Closing Distributions, of the combined Company and PEcoS, the Total Liabilities of the combined Company and PEcoS) of the Company, as consolidated with PEcoS, of $1,135,789 (the “January 31, 2007 Combined Net Assets”). The Adjusted January 31, 2007 Balance Sheet also reflects customary and appropriate accruals, including, without limitation, operating expenses, accounts receivable (billed and unbilled), bad debt reserves, prepaid expenses, inter-company debts, fixed assets, security deposits, goodwill, investments, deferred Tax assets, accounts payable, accrued payables, deferred income, Taxes payable by the Company and PEcoS, accrued payroll and other Liabilities of the Company and PEcoS, on a consolidated basis, including, without limitation, the Lender Debt and the Shareholder Debt. Not less than three (3) business days prior to the Closing Date, the Company and the Parent shall, with the assistance of their respective agents and representatives, prepare an unaudited balance sheet of the Company, consolidated with PEcoS, as of three (3) business days prior to the Closing Date (the “Closing Balance Sheet”). The Closing Payment Balance Sheet shall be prepared in good faith and in accordance with GAAP and shall be adjusted on a pro forma basis (i) to include all cash held by the Company as of the date of the Closing Balance Sheet to be deposited by the Company into the Company’s bank account at the Closing as the result of the exercise immediately prior to the Closing of Company Stock Options or Company Warrants, and (ii) as though all of the assets constituting the Pre-Closing Distributions had been transferred, dividended, assigned or distributed by the Company pursuant to the terms of paragraph 9.23 prior to the date of the Closing Balance Sheet. The Closing Balance Sheet shall also reflect customary and appropriate accruals, including, without limitation, operating expenses, accounts receivable (billed and unbilled), bad debt reserve, prepaid expenses, inter-company debts, fixed assets, security deposits, goodwill, investments, deferred Tax assets, accounts payable, accrued payables, deferred income, Taxes payable by the Company and PEcoS, accrued payroll and other Liabilities of the Company and PEcoS, on a consolidated basis, including, without limitation, all of (i) the Broker’s Fee (as defined in paragraph 7.21) and all legal, accounting, consulting, investment banking, and other fees and expenses incurred and to be incurred by the Company and PEcoS in connection with or as a result of the Merger and the Pre-Closing Distributions, (ii) the Lender Debt and (ii) the Shareholder Debt. If the combined Net Assets of the Company, as consolidated with PEcoS, as reflected on the Closing Balance Sheet, is less than the January 31, 2007 Combined Net Assets, then the Purchase Price shall be reduced by the dollar amount that such is less than the January 31, 2007 Combined Net Assets. If the combined Net Assets of the Company, as consolidated with PEcoS, as reflected on the Closing Balance Sheet, is greater than the January 31, 2007 Combined Net Assets, then the Purchase Price shall be increased by the parties' good faith estimate dollar amount that such is greater than the January 31, 2007 Combined Net Assets. Such reduction or increase to the Purchase Price as provided above shall be reflected by adjusting on a pro-rata basis that portion of the Current Assets of Seller Purchase Price payable under and decreased by the parties' good faith estimate of the Current Liabilities of Seller as of the Closing Date (the "Closing Adjustment"), which adjustment shall be subject pursuant to final adjustment as provided for in paragraph (cparagraphs 1.5(i) below.
and 1.5(ii)(a) and (b) No later than sixty (60) days after by the dollar amount of such reduction or increase. If for any reason the Closing Date, or within three (3) days after receipt Balance Sheet does not reflect all of the necessary accounting data from the NRTC Central Billing System, whichever is later, Purchaser shall make and deliver to Seller a balance sheet reflecting the Current Assets and Current Liabilities of Seller as of the Closing Date (the "Closing Date Balance Sheet"), prepared on a basis consistent with GAAP. For purposes of the Closing Adjustment and the Final Closing Adjustment (as hereinafter defined), the amount of Accounts Receivable of Seller to be included in paid by the Closing Date Balance Sheet shall include only Accounts Receivable of Subscribers Company or PEcoS as reflected on Report 18A (Subscriber Accounts Receivable Aging By Account) of the NRTC Central Billing System Reports less a reserve of six percent (6%) for Accounts Receivable which are not collectible. In addition, the Closing Date Balance Sheet and the Final Closing Adjustment shall not include as a Current Asset any accounts receivable arising from Leased Subscriber Equipment. Purchaser may, by providing Seller with written notice at least five (5) days prior to the Closing, elect to purchase all, or certain of, the DSS(TM) subscriber equipment owned by Seller (other than Leased Subscriber Equipment) on the Closing Date; provided, however, Purchaser shall not have the right to acquire any assets attributable to Seller's Electric Business. Any such equipment which is purchased by Purchaser shall be included as Inventory in the Closing Date Balance Sheet. Except as set forth in this Section 4.4(b), no other assets or liabilities shall be included in the Closing Date Balance Sheet. Seller shall make available to Purchaser such documentation, back-up, invoices, and books and records of Seller as Purchaser may reasonably request.
(c) Seller and Purchaser shall negotiate in good faith to reconcile any discrepancies which may arise required above in connection with the determination Broker’s Fees and legal, accounting, consulting, investment banking and other fees and expenses (collectively, the “Additional Merger Expenses”) incurred or to be incurred by the Company and/or PEcoS in connection with or relating to the Merger or the Pre-Closing Distributions, then the balance of the Closing Date Balance Sheet. If Seller and Purchaser are unable to reconcile such discrepancies, Seller shall have fifteen (15) days from presentment of the Closing Date Balance Sheet by Purchaser to notify Purchaser if Seller wishes to have Purchaser's determination examined. If Seller elects to have Purchaser's determination examined, it Purchase Price shall be submitted to the determination in Atlanta, Georgia, reduced by the Certified Public Accounting firm of KMPG Peat Marwick (or any other independent Certified Public Accounting firm mutually acceptable to Seller and Purchaser), the cost of such examination to be paid fifty percent (50%) by Seller and fifty percent (50%) by Purchaser. The determination by Purchaser shall be final and binding on the parties unless Seller elects to have an examination as provided herein, in which case the results of the examination shall be made within thirty (30) days of such referral, and shall be final and binding on the parties (the "Final Closing Adjustment").
(d) To the extent the Final Closing Adjustment is less than the Closing Adjustment, Seller shall pay the difference in cash to Purchaser within five (5) days after the final determination. In the event the Final Closing Adjustment is greater than the Closing Adjustment, Purchaser shall pay such excess in cash to Seller within five (5) days after the final determination. If, following any payment pursuant to this Section 4.4(d), an error (in billing or reporting by NRTC or otherwise) is thereafter discovered which would have affected the Final Closing Adjustment, the party in whose favor the error was made shall immediately pay in cash the amount of such error Additional Merger Expenses, by reducing on a pro-rata basis that portion of the Purchase Price payable under and pursuant to paragraphs 1.5(i) and 1.5(ii)(a) and (b) by the other partyamount of such Additional Merger Expenses.
Appears in 1 contract
Sources: Merger Agreement (Perma Fix Environmental Services Inc)
Adjustment to Purchase Price. (a) The Closing Payment shall be increased by Attached as Exhibit 1.4 is a representative balance sheet of ----------- the parties' good faith estimate Business as of January 27, 2001. Seller shall, within twenty-one (21) days of the Current Assets of Seller Closing Date, prepare and decreased by the parties' good faith estimate deliver to Buyer a balance sheet of the Current Liabilities of Seller Business as of the Closing Date (the "Closing AdjustmentBalance Sheet"). Buyer --------------------- and Seller acknowledge that the January Balance Sheet may differ from the Closing Balance Sheet. Upon delivery of the Closing Balance Sheet, which adjustment Seller shall be subject instruct its accountants to final adjustment as provided for in paragraph (c) belowprovide Buyer and its accountants and other representatives with full access to all work papers associated with the calculation of the Closing Balance Sheet.
(b) No later than Buyer may contest Seller's calculation of the working capital reflected on the Closing Balance Sheet (the "Closing Working --------------- Capital") by notifying Seller in writing on or before the tenth (10/th/) ------- day following Seller's delivery to Buyer of the Closing Balance Sheet (the "Contest Notice"), which notice shall set forth with particularity the -------------- reasons for Buyer's disagreement with Seller's calculation of the Closing Working Capital. In the event Buyer does not so object, Seller's calculation of the Closing Working Capital shall constitute the final calculation of the Closing Working Capital. During the ten (10) days following delivery of the Contest Notice, the parties shall seek to resolve any disagreement regarding the calculation of the Closing Working Capital and any such resolution shall be conclusive with respect to the matter so resolved. If all such disagreements are not resolved by the end of such ten (10) day period (each an "Unresolved Dispute"), the parties shall appoint ------------------ one of the five largest independent certified public accounting firms as shall be mutually agreed upon (the "Designated Arbitrator") to resolve any --------------------- Unresolved Dispute and make a final determination of the Closing Working Capital. The Designated Arbitrator shall be instructed to make its determination within sixty (60) days after following its retention and such determination shall be final and binding upon the Closing Date, or within three (3) days after receipt parties hereto. All fees and expenses of the necessary accounting data from Designated Arbitrator shall be allocated between Buyer and Seller by the NRTC Central Billing System, whichever is later, Purchaser shall make and deliver Designated Arbitrator in proportion to Seller a balance sheet reflecting the Current Assets and Current Liabilities of Seller as resolution of the Closing Date (the "Closing Date Balance Sheet"), prepared on a basis consistent with GAAP. For purposes of the Closing Adjustment and the Final Closing Adjustment (as hereinafter defined), the amount of Accounts Receivable of Seller to be included in the Closing Date Balance Sheet shall include only Accounts Receivable of Subscribers as reflected on Report 18A (Subscriber Accounts Receivable Aging By Account) of the NRTC Central Billing System Reports less a reserve of six percent (6%) for Accounts Receivable which are not collectible. In addition, the Closing Date Balance Sheet and the Final Closing Adjustment shall not include as a Current Asset any accounts receivable arising from Leased Subscriber Equipment. Purchaser may, by providing Seller with written notice at least five (5) days prior to the Closing, elect to purchase all, or certain of, the DSS(TM) subscriber equipment owned by Seller (other than Leased Subscriber Equipment) on the Closing Date; provided, however, Purchaser shall not have the right to acquire any assets attributable to Seller's Electric Business. Any such equipment which is purchased by Purchaser shall be included as Inventory in the Closing Date Balance Sheet. Except as set forth in this Section 4.4(b), no other assets or liabilities shall be included in the Closing Date Balance Sheet. Seller shall make available to Purchaser such documentation, back-up, invoices, and books and records of Seller as Purchaser may reasonably requestUnresolved Dispute.
(c) Seller and Purchaser shall negotiate in good faith to reconcile any discrepancies which may arise in connection with In the determination of event that the Closing Date Balance Sheet. If Seller Working Capital, as finally calculated and Purchaser are unable to reconcile such discrepancies, Seller shall have fifteen determined in accordance with Sections (15a) days from presentment and (b) of the Closing Date Balance Sheet by Purchaser to notify Purchaser if Seller wishes to have Purchaser's determination examined. If Seller elects to have Purchaser's determination examined, it shall be submitted to the determination in Atlanta, Georgia, by the Certified Public Accounting firm of KMPG Peat Marwick (or any other independent Certified Public Accounting firm mutually acceptable to Seller and Purchaser), the cost of such examination to be paid fifty percent (50%) by Seller and fifty percent (50%) by Purchaser. The determination by Purchaser shall be final and binding on the parties unless Seller elects to have an examination as provided herein, in which case the results of the examination shall be made within thirty (30) days of such referral, and shall be final and binding on the parties this Section 1.4 (the "Final Closing AdjustmentWorking Capital").
(d) To the extent the Final Closing Adjustment , is less than the Closing Adjustment$2,250,000, Seller shall pay to Buyer an amount equal to the difference in cash between $2,250,000 and the Final Closing Working Capital. In the event that the Final Closing Working Capital is greater than $2,750,000, Buyer shall pay to Purchaser Seller an amount equal to the difference between $2,750,000 and the Final Closing Working Capital. Any payment required by this paragraph shall be made within five ten (510) days after the final determination. In completion of the event determination of the Final Closing Adjustment is greater than the Closing Adjustment, Purchaser shall pay such excess in cash Working Capital to Seller within five (5) days after the final determination. If, following any payment pursuant to this Section 4.4(d), an error (in billing or reporting account and as reasonably instructed by NRTC or otherwise) is thereafter discovered which would have affected the Final Closing Adjustment, the party in whose favor the error was made shall immediately pay in cash the amount of entitled to receive such error to the other partypayment.
Appears in 1 contract
Sources: Asset Acquisition Agreement (Renaissance Worldwide Inc)