Base Purchase Price. (a) No more than five (5) nor fewer than three (3) Business Days before the Closing, the Company shall furnish to Purchaser the Company’s good faith estimate of the balance sheet of the Company as of the Adjusted Time, prepared in accordance with GAAP (as in effect as of the Adjusted Time), consistently applied by the Company (such estimate of the balance sheet the “Estimated Closing Balance Sheet”) (except for such deviations from GAAP as are specifically described in Schedule 2.3(a)(i) hereto), together with a statement reflecting the Company’s good faith estimate of the Estimated Base Purchase Price and the Estimated Net Working Capital, which shall be prepared applying the methodologies and assumptions set forth on Schedule 2.3(a)(ii) applied in the calculation of the Net Working Capital as of December 31, 2008, a copy of which is attached hereto as Schedule 2.3(a)(ii). (b) On the Closing Date, Purchaser shall pay the Estimated Base Purchase Price, to be paid as follows: (i) The Escrow Amount to the Escrow Agent to be available as a non-exclusive source (subject to the limitations set forth in Article VIII hereof) of funds to satisfy claims by the Purchaser (or any Purchaser Indemnitee) for indemnification by the Stockholders pursuant to this Agreement; (ii) The Indebtedness for Borrowed Money and any unpaid Transaction Expenses in accordance with the Payoff Instructions contemplated by Section 2.3(k) hereof; and (iii) The Indemnification Expense Cash to the Seller Representatives’ Custody Account. (iv) To each Stockholder, a promissory note, (each a “Note” and collectively the “Notes”) in the form attached hereto as Exhibit D, with an aggregate amount equal to Fifteen million forty-nine thousand one hundred twenty three dollars and seventy four cents ($15,049,123.74), made payable to each Stockholder pro rata (determined in accordance with the respective percentages set forth on Schedule 2.3(b) (the “Pro Rata Portions”). (c) Following the Closing Date, Purchaser shall prepare the Closing Balance Sheet and a statement (the “Closing Date Statement”) reflecting the Purchaser’s determination of Net Working Capital as of the Adjusted Time, as determined in accordance with GAAP (as in effect as of the Adjusted Time), consistently applied by the Company, which determination shall be prepared applying the methodologies and assumptions set forth on Schedule 2.3(a)(ii) applied in the calculation of the Net Working Capital as of December 31, 2008, a copy of which is attached hereto as Schedule 2.3(a)(ii), to the extent such methodologies and assumptions are compliant with GAAP. Purchaser shall deliver the Closing Balance Sheet and Closing Date Statement (collectively, the “Post-Closing Statement”) to the Seller Representatives within one hundred twenty (120) calendar days after the Closing Date. In addition, the Purchaser shall make available to the Seller Representatives (upon execution by the Seller Representatives of a confidentiality agreement reasonably acceptable to Purchaser) such information of Purchaser as Seller Representatives shall reasonably request (such request to be made in writing) to review the Post-Closing Statement; provided, however, that the Purchaser shall have no obligation to provide any work papers or other materials owned by or belonging to KPMG LLP. The Seller Representatives shall be entitled to object to any matter in the Post-Closing Statement in accordance with Section 2.3(e) below. If the Seller Representatives deliver to the Purchaser a Base Purchase Price Notice (as hereinafter defined), the Company and the Purchaser will request that KPMG LLP provide any work papers or other materials owned by or belonging to KPMG LLP relating to the Post-Closing Statement; provided that (i) the decision to provide such work papers or other materials and (ii) release(s), if any, required by KPMG LLP shall, in each case, be determined by KPMG LLP, in its sole discretion. (d) If the Seller Representatives do not object to the Post-Closing Statement in accordance with Section 2.3(e) within thirty (30) calendar days following their receipt of the Post-Closing Statement, the Base Purchase Price set forth therein shall become final and binding on the Parties for all purposes of this Agreement. (e) If the Seller Representatives object to any matter in the Post-Closing Statement, the Seller Representatives shall, within thirty (30) calendar days after receipt of the Post-Closing Statement, give Purchaser written notice of such objection (the “Base Purchase Price Notice”), which notice shall contain (i) a detailed explanation of each objected item and provide reasonable backup materials or information therefor, and (ii) the calculation by the Seller Representatives of the Base Purchase Price and the Net Working Capital as of immediately prior to the Adjusted Time. (f) The Purchaser and the Seller Representatives shall negotiate in good faith to resolve any disputes. If the Purchaser and the Seller Representatives are unable to resolve all disputes within thirty (30) calendar days of receipt by the Purchaser of the Base Purchase Price Notice, then only the unresolved disputes shall be submitted by either Party for resolution to a nationally recognized accounting firm mutually agreed on by the Purchaser and the Seller Representatives and not currently or within the past thirty-six (36) months engaged by any of the Sellers or the Purchaser, or any of their respective Affiliates. Undisputed amounts shall be paid promptly as otherwise set forth in Section 2.3(h). The accounting firm so selected to resolve any such disputes is hereinafter referred to as the “Independent Accountants.” In accordance with the procedures set forth in Section 2.3(g), the Independent Accountants shall promptly, and in any event within sixty (60) calendar days after submission of any disputed items to the Independent Accountants pursuant to this Section 2.3(f), render their decision on the matters in dispute in writing and determine the Base Purchase Price and the accurate Net Working Capital of the Company as of the Adjusted Time, which decision and determination shall be final and binding on the parties. The Independent Accountants shall determine the proportion of their fees and expenses to be paid by each of the Purchaser and the Stockholders pursuant to this Section 2.3(f), which fees and expenses shall be allocated pro rata based on the percentage which the portion of the contested amount of the Base Purchase Price not awarded to each party bears to the amount of the Base Purchase Price actually contested by such party. (g) The following shall apply when any matter is submitted to the Independent Accountants for resolution pursuant to Sections 2.3(f), 2.4(e) or 7.1 hereof: (i) each of the Purchaser, on one hand, and the Seller Representatives, on the other hand, shall furnish, at its own expense, the Independent Accountants and the other party with such documents and information as the Independent Accountants may request; (ii) each of the Purchaser and the Seller Representatives may also furnish to the Independent Accountants such other information and documents as they deems relevant with appropriate copies or notifications being given to the other party; (iii) the Independent Accountants may, in their discretion, conduct a conference concerning the disagreement with the Purchaser and the Seller Representatives, at which conference each party shall have the right to present additional documents, materials and other information and to have present its advisors, counsel and accountants; provided that in connection with such process, there shall be no hearings, oral examinations, testimony, depositions, discovery or other similar proceedings conducted by any party or by the Independent Accountants; (iv) the Independent Accountants’ decision on each disputed item shall (x) be within the range of amounts claimed by the parties, or (y) if outside the range of amounts claimed by the parties, deemed to be the amount of whichever party’s determination was closest to that of the Independent Accountants; and (v) the Independent Accountants’ jurisdiction to resolve disputes pursuant to this Agreement shall be limited to accounting matters and the fee and expense matters expressly contemplated by this Agreement, and neither party shall be limited or precluded, by virtue of Sections 2.3(f), 2.4(e), 7.1 or this Section 2.3(g) from bringing any legal suit, action or claim relating to other matters, including fraud or the breach of any representation, warranty, covenant, obligation or agreement hereunder. (h) If the Base Purchase Price as finally determined pursuant to this Section 2.3 is greater than the Estimated Base Purchase Price, then the Purchaser shall pay to each Stockholder such Stockholder’s Pro Rata Portion of the amount equal to the amount by which the Base Purchase Price exceeds the Estimated Base Purchase Price plus interest thereon for the period beginning on the Closing Date and ending on the date of payment pursuant to this Section 2.3 at an interest rate equal to the Prime Rate. If the Estimated Base Purchase Price exceeds the Base Purchase Price as finally determined pursuant to this Section 2.3, then each Stockholder, shall pay to the Purchaser such Stockholder’s Pro Rata Portion of the aggregate amount equal to the amount by which the Estimated Base Purchase Price exceeds the Base Purchase Price plus interest thereon for the period beginning on the Closing Date and ending on the date of payment pursuant to this Section 2.3 at an interest rate equal to the Prime Rate. Any payments and adjustments pursuant to this Section 2.3(h) shall be made, by wire transfer of immediately available funds to the account(s) designated in writing by the Seller Representatives or the Purchaser, as the case may be, within five (5) Business Days after the final determination of the Base Purchase Price pursuant to this Section 2.3. (i) During Purchaser’s preparation of the Post-Closing Statement and the period of any dispute within the contemplation of this Section 2.3, for purposes of preparing the Post-Closing Statement, the Stockholders shall cooperate with the Purchaser and the Purchaser’s authorized representatives, including providing, on a timely basis, such additional information as may be reasonably necessary to prepare the Post-Closing Statement. (j) The Escrow Amount shall be held and disbursed in accordance with the terms of the Escrow Agreement. (k) At least two (2) business days prior to the Closing Date, the Seller Representatives shall submit documentation (the “Payoff Instructions”) setting forth the amount of all Indebtedness for Borrowed Money and all unpaid Transaction Expenses, in each case as of the Adjusted Time, including the identity of each recipient, dollar amounts, wire instructions and any other information necessary to effect payment thereof. At the Closing, the Purchaser shall pay on behalf of the Sellers (or provide the Company with funds sufficient to enable the Company to pay): (i) all of the fees and expenses owed as of the Adjusted Time by the Company or the Stockholders to their attorneys, accountants or financial advisors or otherwise incurred in connection with the transactions contemplated hereby (such fees being referred to as the “Transaction Expenses”) and (ii) all of the Indebtedness for Borrowed Money as of the Adjusted Time. At the Closing, the Company and the Seller Representatives shall deliver to the Purchaser (x) pay-off letters, releases and lien discharges (or agreements therefor) with respect to all of the Indebtedness for Borrowed Money, from each creditor to whom such Indebtedness for Borrowed Money is owed and (y) receipts evidencing the amount of Transaction Expenses being paid by the Purchaser at Closing, all of which shall be in a form and substance satisfactory to the Purchaser.
Appears in 1 contract
Base Purchase Price. (a) No more than five (5) nor fewer than three (3) Business Days before In full consideration for the ClosingPurchased Assets, and upon the Company shall furnish terms and subject to the conditions contained in this Agreement, including the assumption by Purchaser the Company’s good faith estimate of the balance sheet of the Company as of the Adjusted Time, prepared in accordance with GAAP (as in effect as of the Adjusted Time), consistently applied by the Company (such estimate of the balance sheet the “Estimated Closing Balance Sheet”) (except for such deviations from GAAP as are specifically described in Schedule 2.3(a)(i) hereto), together with a statement reflecting the Company’s good faith estimate of the Estimated Base Purchase Price and the Estimated Net Working Capital, which shall be prepared applying the methodologies and assumptions set forth on Schedule 2.3(a)(ii) applied in the calculation of the Net Working Capital as of December 31, 2008, a copy of which is attached hereto as Schedule 2.3(a)(ii).
(b) On the Closing DateAssumed Liabilities, Purchaser shall pay to Seller an amount (the Estimated “Base Purchase Price”) equal to (a) Twenty-Four Million Fifty-Three Thousand Nine Hundred Twenty-Three Dollars ($24,053,923), to be paid as follows:
plus (b) the sum of (i) The Escrow Amount to 90% of the Escrow Agent to be available as a non-exclusive source face amount of all Accounts Receivable respecting the Assumed Alarm Contracts (subject to the limitations set forth in Article VIII hereof) of funds to satisfy claims by the Purchaser (or any Purchaser Indemnitee) for indemnification by the Stockholders pursuant to this Agreement;
(ii) The Indebtedness for Borrowed Money and any unpaid Transaction Expenses in accordance with the Payoff Instructions contemplated by Section 2.3(k) hereof; and
(iii) The Indemnification Expense Cash to the Seller Representatives’ Custody Account.
(iv) To each Stockholder, a promissory note, (each a “Note” and collectively the “Notes”) in the form attached hereto as Exhibit D, with an aggregate amount equal to Fifteen million forty-nine thousand one hundred twenty three dollars and seventy four cents ($15,049,123.74), made payable to each Stockholder pro rata (determined in accordance with the respective percentages set forth on Schedule 2.3(bexcluding Accounts Receivable from Minnegasco) (the “Pro Rata Portions”).
(c) Following the Closing Date, Purchaser shall prepare the Closing Balance Sheet and a statement (the “Closing Date StatementAlarm Contract A/R”) reflecting that are less than thirty-one (31) days past the Purchaser’s determination of Net Working Capital invoice due date as of the Adjusted Time, as determined in accordance with GAAP Closing; plus (as in effect ii) 70% of the face amount of all delinquent Alarm Contract A/R that are more than thirty (30) but less than sixty-one (61) days past the invoice due date as of the Adjusted Time)Closing; plus (iii) 40% of the face amount of all delinquent Alarm Contract A/R that are more than sixty (60) but less than ninety-one (91) days past the invoice due date as of the Closing; plus (iv) 100% of the face amount of all Accounts Receivable from Minnegasco that are less than ninety-one (91) days past the invoice due date as of the Closing, consistently applied by the Company, which determination shall be prepared applying the methodologies and assumptions set forth each as calculated on Schedule 2.3(a)(ii2.1.1(b) applied in the calculation of the Net Working Capital as of December 31, 2008, a copy of which is attached hereto as Schedule 2.3(a)(ii), to the extent such methodologies and assumptions are compliant with GAAP. Purchaser shall deliver the Closing Balance Sheet and Closing Date Statement (collectively, the “Post-Closing StatementAccounts Receivable Amount”); minus (c) the aggregate amount of unearned or deferred revenue respecting the Assumed Alarm Contracts that has been paid to the Seller Representatives within one hundred twenty (120) calendar days Target Companies as of the Closing for services to be rendered after the Closing Date. In additionClosing, as calculated on Schedule 2.1.1(c) (the Purchaser shall make available to “Deferred Revenue”); minus (d) the aggregate amount of the following liabilities of the Seller Representatives (upon execution by Subsidiaries determined as of the Seller Representatives of a confidentiality agreement reasonably acceptable to Purchaser) such information of Purchaser as Seller Representatives shall reasonably request (such request to be made in writing) to review the Post-Closing Statement; provided, however, that the Purchaser shall have no obligation to provide any work papers or other materials owned by or belonging to KPMG LLP. The Seller Representatives shall be entitled to object to any matter in the Post-Closing Statement in accordance with Section 2.3(eGAAP: (A) below. If accounts payable, (B) the accrued salary, accrued paid time off and any other accrued benefits payable to the employees of the Seller Representatives deliver Subsidiaries and (C) any other accrued expenses (the “Assumed Accruals”), as set forth in detail and calculated (or estimated with respect to the Purchaser a subparts (A) and (C)), on Schedule 2.1.1(d). The Base Purchase Price Notice shall be subject to adjustment pursuant to the provisions of Section 2.1.2 hereof (as hereinafter defined)so adjusted, the Company and the Purchaser will request that KPMG LLP provide any work papers or other materials owned by or belonging to KPMG LLP relating to the Post-Closing Statement; provided that (i) the decision to provide such work papers or other materials and (ii) release(s), if any, required by KPMG LLP shall, in each case, be determined by KPMG LLP, in its sole discretion.
(d) If the Seller Representatives do not object to the Post-Closing Statement in accordance with Section 2.3(e) within thirty (30) calendar days following their receipt of the Post-Closing Statement, the Base “Purchase Price set forth therein shall become final and binding on the Parties for all purposes of this Agreement.
(e) If the Seller Representatives object to any matter in the Post-Closing Statement, the Seller Representatives shall, within thirty (30) calendar days after receipt of the Post-Closing Statement, give Purchaser written notice of such objection (the “Base Purchase Price NoticePrice”), which notice shall contain (i) a detailed explanation of each objected item and provide reasonable backup materials or information therefor, and (ii) the calculation by the Seller Representatives of the Base Purchase Price and the Net Working Capital as of immediately prior to the Adjusted Time.
(f) The Purchaser and the Seller Representatives shall negotiate in good faith to resolve any disputes. If the Purchaser and the Seller Representatives are unable to resolve all disputes within thirty (30) calendar days of receipt by the Purchaser of the Base Purchase Price Notice, then only the unresolved disputes shall be submitted by either Party for resolution to a nationally recognized accounting firm mutually agreed on by the Purchaser and the Seller Representatives and not currently or within the past thirty-six (36) months engaged by any of the Sellers or the Purchaser, or any of their respective Affiliates. Undisputed amounts shall be paid promptly as otherwise set forth in Section 2.3(h). The accounting firm so selected to resolve any such disputes is hereinafter referred to as the “Independent Accountants.” In accordance with the procedures set forth in Section 2.3(g), the Independent Accountants shall promptly, and in any event within sixty (60) calendar days after submission of any disputed items to the Independent Accountants pursuant to this Section 2.3(f), render their decision on the matters in dispute in writing and determine the Base Purchase Price and the accurate Net Working Capital of the Company as of the Adjusted Time, which decision and determination shall be final and binding on the parties. The Independent Accountants shall determine the proportion of their fees and expenses to be paid by each of the Purchaser and the Stockholders pursuant to this Section 2.3(f), which fees and expenses shall be allocated pro rata based on the percentage which the portion of the contested amount of the Base Purchase Price not awarded to each party bears to the amount of the Base Purchase Price actually contested by such party.
(g) The following shall apply when any matter is submitted to the Independent Accountants for resolution pursuant to Sections 2.3(f), 2.4(e) or 7.1 hereof:
(i) each of the Purchaser, on one hand, and the Seller Representatives, on the other hand, shall furnish, at its own expense, the Independent Accountants and the other party with such documents and information as the Independent Accountants may request;
(ii) each of the Purchaser and the Seller Representatives may also furnish to the Independent Accountants such other information and documents as they deems relevant with appropriate copies or notifications being given to the other party;
(iii) the Independent Accountants may, in their discretion, conduct a conference concerning the disagreement with the Purchaser and the Seller Representatives, at which conference each party shall have the right to present additional documents, materials and other information and to have present its advisors, counsel and accountants; provided that in connection with such process, there shall be no hearings, oral examinations, testimony, depositions, discovery or other similar proceedings conducted by any party or by the Independent Accountants;
(iv) the Independent Accountants’ decision on each disputed item shall (x) be within the range of amounts claimed by the parties, or (y) if outside the range of amounts claimed by the parties, deemed to be the amount of whichever party’s determination was closest to that of the Independent Accountants; and
(v) the Independent Accountants’ jurisdiction to resolve disputes pursuant to this Agreement shall be limited to accounting matters and the fee and expense matters expressly contemplated by this Agreement, and neither party shall be limited or precluded, by virtue of Sections 2.3(f), 2.4(e), 7.1 or this Section 2.3(g) from bringing any legal suit, action or claim relating to other matters, including fraud or the breach of any representation, warranty, covenant, obligation or agreement hereunder.
(h) If the Base Purchase Price as finally determined pursuant to this Section 2.3 is greater than the Estimated Base Purchase Price, then the Purchaser shall pay to each Stockholder such Stockholder’s Pro Rata Portion of the amount equal to the amount by which the Base Purchase Price exceeds the Estimated Base Purchase Price plus interest thereon for the period beginning on the Closing Date and ending on the date of payment pursuant to this Section 2.3 at an interest rate equal to the Prime Rate. If the Estimated Base Purchase Price exceeds the Base Purchase Price as finally determined pursuant to this Section 2.3, then each Stockholder, shall pay to the Purchaser such Stockholder’s Pro Rata Portion of the aggregate amount equal to the amount by which the Estimated Base Purchase Price exceeds the Base Purchase Price plus interest thereon for the period beginning on the Closing Date and ending on the date of payment pursuant to this Section 2.3 at an interest rate equal to the Prime Rate. Any payments and adjustments pursuant to this Section 2.3(h) shall be made, by wire transfer of immediately available funds to the account(s) designated in writing by the Seller Representatives or the Purchaser, as the case may be, within five (5) Business Days after the final determination of the Base Purchase Price pursuant to this Section 2.3.
(i) During Purchaser’s preparation of the Post-Closing Statement and the period of any dispute within the contemplation of this Section 2.3, for purposes of preparing the Post-Closing Statement, the Stockholders shall cooperate with the Purchaser and the Purchaser’s authorized representatives, including providing, on a timely basis, such additional information as may be reasonably necessary to prepare the Post-Closing Statement.
(j) The Escrow Amount shall be held and disbursed in accordance with the terms of the Escrow Agreement.
(k) At least two (2) business days prior to the Closing Date, the Seller Representatives shall submit documentation (the “Payoff Instructions”) setting forth the amount of all Indebtedness for Borrowed Money and all unpaid Transaction Expenses, in each case as of the Adjusted Time, including the identity of each recipient, dollar amounts, wire instructions and any other information necessary to effect payment thereof. At the Closing, the Purchaser shall pay on behalf of the Sellers (or provide the Company with funds sufficient to enable the Company to pay): (i) all of the fees and expenses owed as of the Adjusted Time by the Company or the Stockholders to their attorneys, accountants or financial advisors or otherwise incurred in connection with the transactions contemplated hereby (such fees being referred to as the “Transaction Expenses”) and (ii) all of the Indebtedness for Borrowed Money as of the Adjusted Time. At the Closing, the Company and the Seller Representatives shall deliver to the Purchaser (x) pay-off letters, releases and lien discharges (or agreements therefor) with respect to all of the Indebtedness for Borrowed Money, from each creditor to whom such Indebtedness for Borrowed Money is owed and (y) receipts evidencing the amount of Transaction Expenses being paid by the Purchaser at Closing, all of which shall be in a form and substance satisfactory to the Purchaser.
Appears in 1 contract
Sources: Asset Purchase Agreement (Integrated Alarm Services Group Inc)
Base Purchase Price. The purchase price for the Assets (athe "Purchase Price") No more than five shall be Six Hundred Thirty-Four Thousand Four Hundred (5634,400) nor fewer than three (3) Business Days before the Closing, the Company shall furnish to Purchaser the Company’s good faith estimate shares of the balance sheet Class A Common Stock of the Company ▇▇▇▇▇▇▇ Waste Systems, Inc., a Delaware corporation (▇▇▇▇▇▇▇ Waste Systems, Inc. being hereinafter referred to as of the Adjusted Time, prepared in accordance with GAAP (as in effect as of the Adjusted Time), consistently applied by the Company (such estimate of the balance sheet the “Estimated Closing Balance Sheet”) (except for such deviations from GAAP as are specifically described in Schedule 2.3(a)(i) hereto), together with a statement reflecting the Company’s good faith estimate of the Estimated Base Purchase Price "CWS" and the Estimated Net Working Capital, which shall be prepared applying the methodologies and assumptions set forth on Schedule 2.3(a)(ii) applied in the calculation Class A Common Stock of the Net Working Capital as of December 31, 2008, a copy of which is attached hereto as Schedule 2.3(a)(ii).
(b) On the Closing Date, Purchaser shall pay the Estimated Base Purchase Price, to be paid as follows:
(i) The Escrow Amount to the Escrow Agent to be available as a non-exclusive source (subject to the limitations set forth in Article VIII hereof) of funds to satisfy claims by the Purchaser (or any Purchaser Indemnitee) for indemnification by the Stockholders pursuant to this Agreement;
(ii) The Indebtedness for Borrowed Money and any unpaid Transaction Expenses in accordance with the Payoff Instructions contemplated by Section 2.3(k) hereof; and
(iii) The Indemnification Expense Cash to the Seller Representatives’ Custody Account.
(iv) To each Stockholder, a promissory note, (each a “Note” and collectively the “Notes”) in the form attached hereto as Exhibit D, with an aggregate amount equal to Fifteen million forty-nine thousand one hundred twenty three dollars and seventy four cents ($15,049,123.74), made payable to each Stockholder pro rata (determined in accordance with the respective percentages set forth on Schedule 2.3(b) (the “Pro Rata Portions”).
(c) Following the Closing Date, Purchaser shall prepare the Closing Balance Sheet and a statement (the “Closing Date Statement”) reflecting the Purchaser’s determination of Net Working Capital as of the Adjusted Time, as determined in accordance with GAAP (as in effect as of the Adjusted Time), consistently applied by the Company, which determination shall be prepared applying the methodologies and assumptions set forth on Schedule 2.3(a)(ii) applied in the calculation of the Net Working Capital as of December 31, 2008, a copy of which is attached hereto as Schedule 2.3(a)(ii), to the extent such methodologies and assumptions are compliant with GAAP. Purchaser shall deliver the Closing Balance Sheet and Closing Date Statement (collectively, the “Post-Closing Statement”) to the Seller Representatives within one hundred twenty (120) calendar days after the Closing Date. In addition, the Purchaser shall make available to the Seller Representatives (upon execution by the Seller Representatives of a confidentiality agreement reasonably acceptable to Purchaser) such information of Purchaser as Seller Representatives shall reasonably request (such request to be made in writing) to review the Post-Closing Statement; provided, however, that the Purchaser shall have no obligation to provide any work papers or other materials owned by or belonging to KPMG LLP. The Seller Representatives shall be entitled to object to any matter in the Post-Closing Statement in accordance with Section 2.3(e) below. If the Seller Representatives deliver to the Purchaser a Base Purchase Price Notice (as hereinafter defined), the Company and the Purchaser will request that KPMG LLP provide any work papers or other materials owned by or belonging to KPMG LLP relating to the Post-Closing Statement; provided that (i) the decision to provide such work papers or other materials and (ii) release(s), if any, required by KPMG LLP shall, in each case, be determined by KPMG LLP, in its sole discretion.
(d) If the Seller Representatives do not object to the Post-Closing Statement in accordance with Section 2.3(e) within thirty (30) calendar days following their receipt of the Post-Closing Statement, the Base Purchase Price set forth therein shall become final and binding on the Parties for all purposes of this Agreement.
(e) If the Seller Representatives object to any matter in the Post-Closing Statement, the Seller Representatives shall, within thirty (30) calendar days after receipt of the Post-Closing Statement, give Purchaser written notice of such objection (the “Base Purchase Price Notice”), which notice shall contain (i) a detailed explanation of each objected item and provide reasonable backup materials or information therefor, and (ii) the calculation by the Seller Representatives of the Base Purchase Price and the Net Working Capital as of immediately prior to the Adjusted Time.
(f) The Purchaser and the Seller Representatives shall negotiate in good faith to resolve any disputes. If the Purchaser and the Seller Representatives are unable to resolve all disputes within thirty (30) calendar days of receipt by the Purchaser of the Base Purchase Price Notice, then only the unresolved disputes shall be submitted by either Party for resolution to a nationally recognized accounting firm mutually agreed on by the Purchaser and the Seller Representatives and not currently or within the past thirty-six (36) months engaged by any of the Sellers or the Purchaser, or any of their respective Affiliates. Undisputed amounts shall be paid promptly as otherwise set forth in Section 2.3(h). The accounting firm so selected to resolve any such disputes is CWS being hereinafter referred to as the “Independent Accountants.” In accordance with "CWS Common Stock"), subject to adjustment as provided below. The Purchase Price shall be paid as follows: (A) at the procedures Closing (as defined below), the Buyer will deliver to the Sellers certificates representing Five Hundred Seventy Thousand Nine Hundred Sixty (570,960) shares of CWS Common Stock (the "Initial Shares"); and (B) on the first anniversary of the Closing, the Buyer will deliver to the Sellers a certificate representing Sixty-Three Thousand Four Hundred Forty (63,440) shares of CWS Common Stock (the "Retained Shares"), subject to adjustment pursuant to the indemnification obligations of the Stockholder and the Sellers set forth in this Agreement and the adjustment provisions set forth in Section 2.3(g1(g), . The Initial Shares and the Independent Accountants shall promptly, and in any event within sixty (60) calendar days after submission Retained Shares are hereinafter referred to as the "Shares." The Parties agree that the calculation of any disputed items to the Independent Accountants pursuant to this Section 2.3(f), render their decision on the matters in dispute in writing and determine the Base Purchase Price and the accurate Net Working Capital of the Company as of the Adjusted Time, which decision and determination shall be final and binding has been based in part on the parties. The Independent Accountants shall determine the proportion of their fees and expenses to be paid assumptions made by each of the Purchaser and Parties as to the Stockholders pursuant to this Section 2.3(f), which fees and expenses shall be allocated pro rata based on the percentage which the portion valuation of the contested amount Buyer and of the Base Purchase Price not awarded to each party bears to the amount of the Base Purchase Price actually contested by such party.
(g) The following shall apply when any matter is submitted to the Independent Accountants for resolution pursuant to Sections 2.3(f), 2.4(e) or 7.1 hereof:
(i) each of the Purchaser, on one hand, and the Seller Representatives, on the other hand, shall furnish, at its own expenseCWS. Accordingly, the Independent Accountants and parties hereby further agree that the other party with such documents and information as the Independent Accountants may request;
(ii) each Buyer will issue additional shares of the Purchaser and the Seller Representatives may also furnish to the Independent Accountants such other information and documents as they deems relevant with appropriate copies CWS Common Stock or notifications being given to the other party;
(iii) the Independent Accountants may, in their discretion, conduct a conference concerning the disagreement with the Purchaser and the Seller Representatives, at which conference each party shall have the right to present additional documents, materials and other information and to have present its advisors, counsel and accountants; provided that in connection with such process, there shall be no hearings, oral examinations, testimony, depositions, discovery or other similar proceedings conducted by any party or by the Independent Accountants;
(iv) the Independent Accountants’ decision on each disputed item shall (x) be within the range of amounts claimed by the parties, or (y) if outside the range of amounts claimed by the parties, deemed to be the amount of whichever party’s determination was closest to that of the Independent Accountants; and
(v) the Independent Accountants’ jurisdiction to resolve disputes pursuant to this Agreement shall be limited to accounting matters and the fee and expense matters expressly contemplated by this Agreement, and neither party shall be limited or precluded, by virtue of Sections 2.3(f), 2.4(e), 7.1 or this Section 2.3(g) from bringing any legal suit, action or claim relating to other matters, including fraud or the breach of any representation, warranty, covenant, obligation or agreement hereunder.
(h) If the Base Purchase Price as finally determined pursuant to this Section 2.3 is greater than the Estimated Base Purchase Price, then the Purchaser shall pay to each Stockholder such Stockholder’s Pro Rata Portion of the amount equal to the amount by which the Base Purchase Price exceeds the Estimated Base Purchase Price plus interest thereon for the period beginning on the Closing Date and ending on the date of payment pursuant to this Section 2.3 at an interest rate equal to the Prime Rate. If the Estimated Base Purchase Price exceeds the Base Purchase Price as finally determined pursuant to this Section 2.3, then each Stockholder, shall pay to the Purchaser such Stockholder’s Pro Rata Portion of the aggregate amount equal to the amount by which the Estimated Base Purchase Price exceeds the Base Purchase Price plus interest thereon for the period beginning on the Closing Date and ending on the date of payment pursuant to this Section 2.3 at an interest rate equal to the Prime Rate. Any payments and adjustments pursuant to this Section 2.3(h) shall be made, by wire transfer of immediately available funds to the account(s) designated in writing by the Seller Representatives or the Purchaser, as the case may be, within five (5) Business Days after the final determination of the Base Purchase Price pursuant to this Section 2.3.
(i) During Purchaser’s preparation of the Post-Closing Statement and the period of any dispute within the contemplation of this Section 2.3, for purposes of preparing the Post-Closing Statement, the Stockholders shall cooperate with the Purchaser and the Purchaser’s authorized representatives, including providing, on a timely basis, such additional information as may be reasonably necessary to prepare the Post-Closing Statement.
(j) The Escrow Amount shall be held and disbursed in accordance with the terms of the Escrow Agreement.
(k) At least two (2) business days prior to the Closing Date, the Seller Representatives shall submit documentation (the “Payoff Instructions”) setting forth the amount of all Indebtedness for Borrowed Money and all unpaid Transaction Expenses, in each case as of the Adjusted Time, including the identity of each recipient, dollar amounts, wire instructions and any other information necessary to effect payment thereof. At the Closing, the Purchaser shall pay on behalf of the Sellers (or provide the Company with funds sufficient to enable the Company to pay): (iStockholder) all will surrender certain of the fees and expenses owed Shares, as follows:
i. In the event that (A) CWS completes an underwritten registered initial public offering of the Adjusted Time by the Company or the Stockholders to their attorneys, accountants or financial advisors or otherwise incurred in connection with the transactions contemplated hereby (such fees being referred to as the “Transaction Expenses”) CWS Common Stock and (iiI) all of the Indebtedness for Borrowed Money as of the Adjusted Time. At the Closing, the Company and the Seller Representatives shall deliver to the Purchaser public offering price (x) pay-off letters, releases and lien discharges (or agreements therefor) with respect to all any Shares which are sold in such offering) or (II) the average closing sale price per share of the Indebtedness for Borrowed MoneyCWS Common Stock over the ten trading days ending on the twentieth day after the date of the final prospectus relating to such offering (with respect to Shares not sold in such offering) (the "Public Market Price") is less than $20 (subject to appropriate adjustment in the event of any stock dividend, from each creditor to whom stock split, combination or other recapitalization affecting such Indebtedness for Borrowed Money is owed and shares) (y) receipts evidencing the amount of Transaction Expenses being paid by the Purchaser at Closing, all of which shall be in a form and substance satisfactory to the Purchaser."Twenty Dollars Per Share"); or
Appears in 1 contract
Sources: Reorganization Agreement (Casella Waste Systems Inc)
Base Purchase Price. (a) No more than five The base purchase price for the Shares (5) nor fewer than three (3) Business Days before the Closing, the Company shall furnish to Purchaser the Company’s good faith estimate of the balance sheet of the Company as of the Adjusted Time, prepared in accordance with GAAP (as in effect as of the Adjusted Time), consistently applied by the Company (such estimate of the balance sheet the “Estimated Closing Balance Sheet”) (except for such deviations from GAAP as are specifically described in Schedule 2.3(a)(i) hereto), together with a statement reflecting the Company’s good faith estimate of the Estimated "Base Purchase Price and the Estimated Net Working Capital, which Price") shall be prepared applying the methodologies and assumptions that amount set forth on Schedule 2.3(a)(iiin Sections 1.2(b)(i) applied in the calculation of the Net Working Capital as of December 31, 2008, a copy of which is attached hereto as Schedule 2.3(a)(ii)and (b)(ii) below.
(b) On the Closing Date, The Purchaser shall pay the Estimated Base Purchase Price, Price to be paid the Shareholder as follows:
(i) The Escrow Amount $4,750,000 shall be paid to the Escrow Agent Shareholder in cash at Closing (the “Initial Closing Cash Payment”) and $250,000 shall be paid to be available as a non-exclusive source Shareholder in cash (the “Subsequent Closing Cash Payment”) following the Closing in accordance with and subject to the limitations set forth in Article VIII hereof) of funds to satisfy claims by the Purchaser (or any Purchaser Indemnitee) for indemnification by the Stockholders adjustment pursuant to this Agreement;Section 1.6.
(ii) The Indebtedness for Borrowed Money Subject to the terms of Section 1.2(b)(iii) below, the Purchaser shall pay to the Shareholder up to an additional $2,800,000 which shall be payable in four (4) installments (collectively, the “Tier-1 Earn-Out Payments” and any unpaid Transaction Expenses individually, a “Tier-1 Earn-Out Payment”) covering the following four (4) earn-out periods (each an “Earn-Out Period” and collectively, the “Earn-Out Periods”) from September 1, 2008 through June 30, 2012, as follows: (A) the “2009 Earn-Out Payment” covering the period from September 1, 2008 through June 30, 2009 (the “2009 Earn-Out Period”); (B) the “2010 Earn-Out Payment” covering the period from July 1, 2009 through June 30, 2010 (the “2010 Earn-Out Period”); (C) the “2011 Earn-Out Payment” covering the period from July 1, 2010 through June 30, 2011 (the “2011 Earn-Out Period”); and (D) the “2012 Earn-Out Payment” covering the period from July 1, 2011 through June 30, 2012 (the “2012 Earn-Out Period”). Each of the Tier-1 Earn-Out Payments shall be in accordance with the Payoff Instructions contemplated by Section 2.3(k) hereof; andan amount up to $700,000.
(iii) The Indemnification Expense Cash Payment of each Tier-1 Earn-Out Payment shall be based on the Company having achieved the Gross Profit Contributions for each respective Earn-Out Period, as follows (each, a “Base Targeted Amount”): $3,600,000 in Gross Profit Contributions for the 2009 Earn-Out Period; $4,320,000 in Gross Profit Contributions for the 2010 Earn-Out Period; $4,320,000 in Gross Profit Contributions for the 2011 Earn-Out Period; and $4,320,000 in Gross Profit Contributions for the 2012 Earn-Out Period. To the extent the Company’s actual Gross Profit Contributions during any Earn-Out Period are less than the Base Targeted Amount for the same period (such deficit referred to as the “Shortfall Amount”), the Tier-1 Earn-Out Payment for that Earn-Out Period shall be reduced by forty-five percent (45%) of the Shortfall Amount.
(1) If, during an Earn-Out Period, any historically-operated Company station is combined into one financial reporting unit with a station of Purchaser or any Affiliate of Purchaser, the Gross Profit Contributions of the then-combined Company station will be determined by including (A) one hundred percent (100%) of the Gross Profit Contributions of the customers historically serviced by such Company station prior to any such combination, plus (B) a Proportionate Share of any Gross Profit Contributions arising from new customers serviced by the combined operations. For purposes of this paragraph, the “Proportionate Share of Gross Profit Contributions” shall equal the Gross Profit Contributions of the Company station being combined for the most recent full 12 month period preceding the combination, divided by the total Gross Profit Contributions of the combined operations on a pro forma basis for the most recent full 12 month period preceding the combination.
(2) In order to protect the Shareholder from temporary fluctuations in the Company’s Gross Profit Contributions in any Earn-Out Period, a period-to-period analysis shall be made so that the cumulative Shortfall Amount incurred in any prior Earn-Out Period(s) can be recovered in a subsequent Earn-Out Period to the Seller Representatives’ Custody Accountextent the Gross Profit Contributions for such Earn-Out Period is in excess of the Base Targeted Amounts for the same period (such amount being the “Overage”). In any Earn-Out Period in which there is an Overage, the Purchaser shall pay to the Shareholder an amount equal to forty-five percent (45%) of the lesser of the Overage or the cumulative Shortfall Amount for any prior Earn-Out Period(s). The balance of any remaining cumulative Shortfall Amount can be recovered against any future Overage. A cumulative Overage from any prior Earn-Out Period(s) can be applied to a Shortfall Amount in any subsequent Earn-Out Period. In any Earn-Out Period in which a Shortfall Amount is incurred and there is a cumulative Overage from any prior Earn-Out Period, the Purchaser shall pay to the Shareholder an amount equal to forty-five percent (45%) of the lesser of the Shortfall Amount or the cumulative Overage.
(iv) To each StockholderThe Tier-1 Earn-Out Payments shall be payable on October 1 of 2009, a promissory note2010, 2011, and 2012 (each a “Note” and collectively the “NotesTier-1 Earn-Out Payment Dates”), and shall be payable fifty percent (50%) in cash and fifty percent (50%) in newly issued shares of common stock of Purchaser (the “Purchaser Shares”). The Purchaser Shares issued in connection with the Tier-1 Earn-Out Payment will be valued at the Weighted Average Price of Purchaser’s common stock on the principal exchange or over-the-counter market on which the Purchaser’s shares trade, for the thirty (30) trading days prior to the Tier-1 Earn-Out Payment Date. In the event Purchaser’s shares are not traded on a public exchange or an over-the-counter market for the thirty (30) days prior to the Tier-1 Earn-Out Payment Date, such Tier-1 Earn-Out Payment shall be payable one hundred percent (100%) in cash.
(v) The Purchaser Shares shall be delivered to the Shareholder not later than ten (10) business days after the Tier-1 Earn-Out Payment Dates against delivery by the Shareholder to the Purchaser of an Investment Representation letter in substantially the form attached hereto as Exhibit D“A” executed by Shareholder together any and all such other documents, with an aggregate amount equal to Fifteen million forty-nine thousand one hundred twenty three dollars and seventy four cents ($15,049,123.74)agreements, made payable to each Stockholder pro rata (determined in accordance with the respective percentages set forth on Schedule 2.3(b) (the “Pro Rata Portions”).
(c) Following the Closing Date, Purchaser shall prepare the Closing Balance Sheet and a statement (the “Closing Date Statement”) reflecting the Purchaser’s determination of Net Working Capital as of the Adjusted Time, as determined in accordance with GAAP (as in effect as of the Adjusted Time), consistently applied by the Company, which determination shall be prepared applying the methodologies and assumptions set forth on Schedule 2.3(a)(ii) applied in the calculation of the Net Working Capital as of December 31, 2008, a copy of which is attached hereto as Schedule 2.3(a)(ii), to the extent such methodologies and assumptions are compliant with GAAP. Purchaser shall deliver the Closing Balance Sheet and Closing Date Statement (collectively, the “Post-Closing Statement”) to the Seller Representatives within one hundred twenty (120) calendar days after the Closing Date. In addition, the Purchaser shall make available to the Seller Representatives (upon execution by the Seller Representatives of a confidentiality agreement reasonably acceptable to Purchaser) such information of Purchaser as Seller Representatives shall reasonably request (such request to be made in writing) to review the Post-Closing Statement; provided, however, that the Purchaser shall have no obligation to provide any work papers or other materials owned by or belonging to KPMG LLP. The Seller Representatives shall be entitled to object to any matter in the Post-Closing Statement in accordance with Section 2.3(e) below. If the Seller Representatives deliver to the Purchaser a Base Purchase Price Notice (as hereinafter defined), the Company and the Purchaser will request that KPMG LLP provide any work papers or other materials owned by or belonging to KPMG LLP relating to the Post-Closing Statement; provided that (i) the decision to provide such work papers or other materials and (ii) release(s), if any, required by KPMG LLP shall, in each case, be determined by KPMG LLP, in its sole discretion.
(d) If the Seller Representatives do not object to the Post-Closing Statement in accordance with Section 2.3(e) within thirty (30) calendar days following their receipt of the Post-Closing Statement, the Base Purchase Price set forth therein shall become final and binding on the Parties for all purposes of this Agreement.
(e) If the Seller Representatives object to any matter in the Post-Closing Statement, the Seller Representatives shall, within thirty (30) calendar days after receipt of the Post-Closing Statement, give Purchaser written notice of such objection (the “Base Purchase Price Notice”), which notice shall contain (i) a detailed explanation of each objected item and provide reasonable backup materials or information thereforconsents, and (ii) the calculation by the Seller Representatives of the Base Purchase Price and the Net Working Capital as of immediately prior to the Adjusted Time.
(f) The Purchaser and the Seller Representatives shall negotiate in good faith to resolve any disputes. If the Purchaser and the Seller Representatives are unable to resolve all disputes within thirty (30) calendar days of receipt by the Purchaser of the Base Purchase Price Noticeapprovals governmental or otherwise, then only the unresolved disputes shall be submitted by either Party for resolution to a nationally recognized accounting firm mutually agreed on by the Purchaser and the Seller Representatives and not currently or within the past thirty-six (36) months engaged by any of the Sellers or the Purchaser, or any of their respective Affiliates. Undisputed amounts shall be paid promptly as otherwise set forth in Section 2.3(h). The accounting firm so selected to resolve any such disputes is hereinafter referred to as the “Independent Accountants.” In accordance with the procedures set forth in Section 2.3(g), the Independent Accountants shall promptly, and in any event within sixty (60) calendar days after submission of any disputed items to the Independent Accountants pursuant to this Section 2.3(f), render their decision on the matters in dispute in writing and determine the Base Purchase Price and the accurate Net Working Capital of the Company as of the Adjusted Time, which decision and determination shall be final and binding on the parties. The Independent Accountants shall determine the proportion of their fees and expenses to be paid by each of the Purchaser and the Stockholders pursuant to this Section 2.3(f), which fees and expenses shall be allocated pro rata based on the percentage which the portion of the contested amount of the Base Purchase Price not awarded to each party bears to the amount of the Base Purchase Price actually contested by such party.
(g) The following shall apply when any matter is submitted to the Independent Accountants for resolution pursuant to Sections 2.3(f), 2.4(e) or 7.1 hereof:
(i) each of the Purchaser, on one hand, and the Seller Representatives, on the other hand, shall furnish, at its own expense, the Independent Accountants and the other party with such documents and information as the Independent Accountants may request;
(ii) each of the Purchaser and the Seller Representatives may also furnish to the Independent Accountants such other information and documents as they deems relevant with appropriate copies or notifications being given to the other party;
(iii) the Independent Accountants may, in their discretion, conduct a conference concerning the disagreement with the Purchaser and the Seller Representatives, at which conference each party shall have the right to present additional documents, materials and other information and to have present its advisors, counsel and accountants; provided that in connection with such process, there shall be no hearings, oral examinations, testimony, depositions, discovery or other similar proceedings conducted by any party or by the Independent Accountants;
(iv) the Independent Accountants’ decision on each disputed item shall (x) be within the range of amounts claimed by the parties, or (y) if outside the range of amounts claimed by the parties, deemed to be the amount of whichever party’s determination was closest to that of the Independent Accountants; and
(v) the Independent Accountants’ jurisdiction to resolve disputes pursuant to this Agreement shall be limited to accounting matters and the fee and expense matters expressly contemplated by this Agreement, and neither party shall be limited or precluded, by virtue of Sections 2.3(f), 2.4(e), 7.1 or this Section 2.3(g) from bringing any legal suit, action or claim relating to other matters, including fraud or the breach of any representation, warranty, covenant, obligation or agreement hereunder.
(h) If the Base Purchase Price as finally determined pursuant to this Section 2.3 is greater than the Estimated Base Purchase Price, then the Purchaser shall pay to each Stockholder such Stockholder’s Pro Rata Portion of the amount equal to the amount by which the Base Purchase Price exceeds the Estimated Base Purchase Price plus interest thereon for the period beginning on the Closing Date and ending on the date of payment pursuant to this Section 2.3 at an interest rate equal to the Prime Rate. If the Estimated Base Purchase Price exceeds the Base Purchase Price as finally determined pursuant to this Section 2.3, then each Stockholder, shall pay to the Purchaser such Stockholder’s Pro Rata Portion of the aggregate amount equal to the amount by which the Estimated Base Purchase Price exceeds the Base Purchase Price plus interest thereon for the period beginning on the Closing Date and ending on the date of payment pursuant to this Section 2.3 at an interest rate equal to the Prime Rate. Any payments and adjustments pursuant to this Section 2.3(h) shall be made, by wire transfer of immediately available funds to the account(s) designated in writing by the Seller Representatives or the Purchaser, as the case may be, within five (5) Business Days after the final determination of the Base Purchase Price pursuant to this Section 2.3.
(i) During Purchaser’s preparation of the Post-Closing Statement and the period of any dispute within the contemplation of this Section 2.3, for purposes of preparing the Post-Closing Statement, the Stockholders shall cooperate with the Purchaser and the Purchaser’s authorized representatives, including providing, on a timely basis, such additional information as may be reasonably necessary to prepare the Post-Closing Statement.
(j) The Escrow Amount shall be held and disbursed in accordance with the terms of the Escrow Agreement.
(k) At least two (2) business days prior to the Closing Date, the Seller Representatives shall submit documentation (the “Payoff Instructions”) setting forth the amount of all Indebtedness for Borrowed Money and all unpaid Transaction Expenses, in each case as of the Adjusted Time, including the identity of each recipient, dollar amounts, wire instructions and any other information necessary to effect payment thereof. At the Closing, requested by the Purchaser shall pay on behalf of the Sellers (or provide the Company with funds sufficient to enable the Company to pay): (i) all of the fees and expenses owed as of the Adjusted Time by the Company or the Stockholders to their attorneys, accountants or financial advisors or otherwise incurred in connection with compliance with the transactions contemplated hereby (such fees being referred to as the “Transaction Expenses”) and (ii) all provisions of the Indebtedness for Borrowed Money as of the Adjusted Time. At the Closing, the Company and the Seller Representatives shall deliver to the Purchaser (x) pay-off letters, releases and lien discharges (Securities Act or agreements therefor) with respect to all of the Indebtedness for Borrowed Money, from each creditor to whom such Indebtedness for Borrowed Money is owed and (y) receipts evidencing the amount of Transaction Expenses being paid by the Purchaser at Closing, all of which shall be in a form and substance satisfactory to the Purchaserany state securities laws.
Appears in 1 contract
Base Purchase Price. The purchase price for the Assets is TWO ------------------- TWO MILLION SIX HUNDRED TWENTY-FIVE THOUSAND DOLLARS (a$2,625,000) No more than five (5) nor fewer than three (3) Business Days before the Closing, the Company shall furnish to Purchaser the Company’s good faith estimate of the balance sheet of the Company as of the Adjusted Time, prepared in accordance with GAAP (as in effect as of the Adjusted Time"Purchase Price"), consistently applied by the Company (such estimate of the balance sheet the “Estimated Closing Balance Sheet”) (except for such deviations from GAAP as are specifically described in Schedule 2.3(a)(i) hereto), together with a statement reflecting the Company’s good faith estimate of the Estimated Base Purchase Price and the Estimated Net Working Capital, which shall be prepared applying the methodologies and assumptions set forth payable on Schedule 2.3(a)(ii) applied in the calculation of the Net Working Capital as of December 31, 2008, a copy of which is attached hereto as Schedule 2.3(a)(ii).
(b) On the Closing Date, Purchaser shall pay the Estimated Base Purchase Price, to be paid Date as follows:
a. The Purchaser's delivery to OCPS of a cashier's check or wire transfer from the Purchaser payable to OCPS in the aggregate amount of ONE MILLION FIVE HUNDRED SEVENTY-FIVE THOUSAND DOLLARS (i$1,575,000), as a capital contribution to OCPS;
b. OCPS's delivery to HELP of a cashier's check or wire transfer from OCPS payable to HELP in the aggregate amount of ONE MILLION FIVE HUNDRED SEVENTY-FIVE THOUSAND DOLLARS ($1,575,000), of which SEVEN HUNDRED EIGHTY-SEVEN THOUSAND FIVE HUNDRED DOLLARS ($787,500) The Escrow Amount shall be distributed on the Closing Date to the Escrow Agent Mohrmanns and SEVEN HUNDRED EIGHTY-SEVEN THOUSAND FIVE HUNDRED DOLLARS ($787,500) shall be distributed on the Closing Date to be available as a non-exclusive source (subject to the limitations set forth in Article VIII hereof) of funds to satisfy claims by the Purchaser (or any Purchaser Indemnitee) for indemnification by the Stockholders pursuant to this Agreement▇▇▇▇▇▇;
c. Purchaser's delivery of convertible promissory notes (iithe "Promissory Notes") The Indebtedness for Borrowed Money and any unpaid Transaction Expenses in accordance with the Payoff Instructions contemplated by Section 2.3(k) hereof; and
an aggregate principal balance of ONE MILLION FIFTY THOUSAND DOLLARS (iii) The Indemnification Expense Cash to the Seller Representatives’ Custody Account.
(iv) To each Stockholder, a promissory note, (each a “Note” and collectively the “Notes”$1,050,000) in the form attached hereto as Exhibit D"B". The ----------- Promissory Notes shall bear interest at eight percent (8%) per annum, with an aggregate amount equal to Fifteen million forty-nine thousand one hundred twenty three dollars and seventy four cents ($15,049,123.74), made payable to each Stockholder pro rata (determined in accordance with the respective percentages set forth on Schedule 2.3(b) (the “Pro Rata Portions”).
(c) Following the Closing Date, Purchaser shall prepare the Closing Balance Sheet and a statement (the “Closing Date Statement”) reflecting the Purchaser’s determination of Net Working Capital as of the Adjusted Time, as determined in accordance with GAAP (as in effect as of the Adjusted Time), consistently applied by the Company, which determination shall be prepared applying payable in monthly installments of interest only for a period of twenty-four (24) months ("Term") and shall be secured pursuant to the methodologies terms and assumptions set forth on Schedule 2.3(a)(ii) applied conditions of a security agreement, substantially in the calculation of the Net Working Capital as of December 31, 2008, a copy of which is form attached hereto as Schedule 2.3(a)(iiExhibit ------- "C". The principal balance of the Promissory Notes shall be convertible into --- Purchaser's Common Stock, par value $.001 per share ("Purchaser's Common Stock"), to at any time during the extent such methodologies and assumptions are compliant with GAAP. Purchaser shall deliver the Closing Balance Sheet and Closing Date Statement (collectively, the “Post-Closing Statement”) to the Seller Representatives within one hundred twenty (120) calendar days after the Closing Date. In addition, the Purchaser shall make available to the Seller Representatives (upon execution by the Seller Representatives of a confidentiality agreement reasonably acceptable to Purchaser) such information of Purchaser as Seller Representatives shall reasonably request (such request to be made in writing) to review the Post-Closing Statement; provided, however, that the Purchaser shall have no obligation to provide any work papers or other materials owned by or belonging to KPMG LLP. The Seller Representatives shall be entitled to object to any matter in the Post-Closing Statement in accordance with Section 2.3(e) below. If the Seller Representatives deliver to the Purchaser a Base Purchase Price Notice (as hereinafter defined), the Company and the Purchaser will request that KPMG LLP provide any work papers or other materials owned by or belonging to KPMG LLP relating to the Post-Closing Statement; provided that (i) the decision to provide such work papers or other materials and (ii) release(s), if any, required by KPMG LLP shall, in each case, be determined by KPMG LLP, in its sole discretion.
(d) If the Seller Representatives do not object to the Post-Closing Statement in accordance with Section 2.3(e) within thirty (30) calendar days following their receipt of the Post-Closing Statement, the Base Purchase Price set forth therein shall become final and binding on the Parties for all purposes of this Agreement.
(e) If the Seller Representatives object to any matter in the Post-Closing Statement, the Seller Representatives shall, within thirty (30) calendar days after receipt of the Post-Closing Statement, give Purchaser written notice of such objection (the “Base Purchase Price Notice”), which notice shall contain (i) a detailed explanation of each objected item and provide reasonable backup materials or information therefor, and (ii) the calculation by the Seller Representatives of the Base Purchase Price and the Net Working Capital as of immediately prior to the Adjusted Time.
(f) The Purchaser and the Seller Representatives shall negotiate in good faith to resolve any disputes. If the Purchaser and the Seller Representatives are unable to resolve all disputes within thirty (30) calendar days of receipt by the Purchaser of the Base Purchase Price Notice, then only the unresolved disputes shall be submitted by either Party for resolution to a nationally recognized accounting firm mutually agreed on by the Purchaser and the Seller Representatives and not currently or within the past thirty-six (36) months engaged by any of the Sellers or the Purchaser, or any of their respective Affiliates. Undisputed amounts shall be paid promptly as otherwise set forth in Section 2.3(h). The accounting firm so selected to resolve any such disputes is hereinafter referred to as the “Independent Accountants.” In accordance with the procedures set forth in Section 2.3(g), the Independent Accountants shall promptly, and in any event within sixty (60) calendar days after submission of any disputed items to the Independent Accountants pursuant to this Section 2.3(f), render their decision on the matters in dispute in writing and determine the Base Purchase Price and the accurate Net Working Capital of the Company as of the Adjusted Time, which decision and determination shall be final and binding on the parties. The Independent Accountants shall determine the proportion of their fees and expenses to be paid by each of the Purchaser and the Stockholders pursuant to this Section 2.3(f), which fees and expenses shall be allocated pro rata based on the percentage which the portion of the contested amount of the Base Purchase Price not awarded to each party bears to the amount of the Base Purchase Price actually contested by such party.
(g) The following shall apply when any matter is submitted to the Independent Accountants for resolution pursuant to Sections 2.3(f), 2.4(e) or 7.1 hereof:
(i) each of the Purchaser, on one hand, and the Seller Representatives, on the other hand, shall furnish, at its own expense, the Independent Accountants and the other party with such documents and information as the Independent Accountants may request;
(ii) each of the Purchaser and the Seller Representatives may also furnish to the Independent Accountants such other information and documents as they deems relevant with appropriate copies or notifications being given to the other party;
(iii) the Independent Accountants may, in their discretion, conduct a conference concerning the disagreement with the Purchaser and the Seller Representatives, at which conference each party shall have the right to present additional documents, materials and other information and to have present its advisors, counsel and accountants; provided that in connection with such process, there shall be no hearings, oral examinations, testimony, depositions, discovery or other similar proceedings conducted by any party or by the Independent Accountants;
(iv) the Independent Accountants’ decision on each disputed item shall (x) be within the range of amounts claimed by the parties, or (y) if outside the range of amounts claimed by the parties, deemed to be the amount of whichever party’s determination was closest to that of the Independent Accountants; and
(v) the Independent Accountants’ jurisdiction to resolve disputes pursuant to this Agreement shall be limited to accounting matters and the fee and expense matters expressly contemplated by this Agreement, and neither party shall be limited or precluded, by virtue of Sections 2.3(f), 2.4(e), 7.1 or this Section 2.3(g) from bringing any legal suit, action or claim relating to other matters, including fraud or the breach of any representation, warranty, covenant, obligation or agreement hereunder.
(h) If the Base Purchase Price as finally determined pursuant to this Section 2.3 is greater than the Estimated Base Purchase Price, then the Purchaser shall pay to each Stockholder such Stockholder’s Pro Rata Portion of the amount equal to the amount by which the Base Purchase Price exceeds the Estimated Base Purchase Price plus interest thereon for the period beginning on the Closing Date and ending on the date of payment pursuant to this Section 2.3 at an interest rate equal to the Prime Rate. If the Estimated Base Purchase Price exceeds the Base Purchase Price as finally determined pursuant to this Section 2.3, then each Stockholder, shall pay to the Purchaser such Stockholder’s Pro Rata Portion of the aggregate amount equal to the amount by which the Estimated Base Purchase Price exceeds the Base Purchase Price plus interest thereon for the period beginning on the Closing Date and ending on the date of payment pursuant to this Section 2.3 at an interest rate equal to the Prime Rate. Any payments and adjustments pursuant to this Section 2.3(h) shall be made, by wire transfer of immediately available funds to the account(s) designated in writing by the Seller Representatives or the Purchaser, as the case may be, within five (5) Business Days after the final determination of the Base Purchase Price pursuant to this Section 2.3.
(i) During Purchaser’s preparation of the Post-Closing Statement and the period of any dispute within the contemplation of this Section 2.3, for purposes of preparing the Post-Closing Statement, the Stockholders shall cooperate with the Purchaser and the Purchaser’s authorized representatives, including providing, on a timely basis, such additional information as may be reasonably necessary to prepare the Post-Closing Statement.
(j) The Escrow Amount shall be held and disbursed Term in accordance with the terms and conditions of the Escrow Agreement.
(k) At least two (2) business Promissory Notes. The Promissory Notes may be prepaid, at the option of OCPS, upon 60 days prior to notice. If, at the Closing Dateend of the Term, any Promissory Notes have not been converted, the Seller Representatives shall submit documentation (the “Payoff Instructions”) setting forth the amount remaining principal balance of all Indebtedness for Borrowed Money such Promissory Notes and all accrued but unpaid Transaction Expenses, in each case as of the Adjusted Time, including the identity of each recipient, dollar amounts, wire instructions and any other information necessary to effect payment thereof. At the Closing, the Purchaser shall pay on behalf of the Sellers (or provide the Company with funds sufficient to enable the Company to pay): (i) all of the fees and expenses owed as of the Adjusted Time by the Company or the Stockholders to their attorneys, accountants or financial advisors or otherwise incurred in connection with the transactions contemplated hereby (such fees being referred to as the “Transaction Expenses”) and (ii) all of the Indebtedness for Borrowed Money as of the Adjusted Time. At the Closing, the Company and the Seller Representatives shall deliver to the Purchaser (x) pay-off letters, releases and lien discharges (or agreements therefor) with respect to all of the Indebtedness for Borrowed Money, from each creditor to whom such Indebtedness for Borrowed Money is owed and (y) receipts evidencing the amount of Transaction Expenses being paid by the Purchaser at Closing, all of which interest thereon shall be paid in a form and substance satisfactory to the Purchaserfull.
Appears in 1 contract
Sources: Purchase Agreement (Cypress Financial Services Inc)
Base Purchase Price. The purchase price for the Purchased ------------------- Assets and the Shares is SEVEN MILLION FOUR HUNDRED TWENTY-FIVE THOUSAND DOLLARS (a$7,425,000) No more than five (5) nor fewer than three (3) Business Days before the Closing, the Company shall furnish to Purchaser the Company’s good faith estimate of the balance sheet of the Company as of the Adjusted Time, prepared in accordance with GAAP (as in effect as of the Adjusted Time"Purchase Price"), consistently applied by the Company (such estimate of the balance sheet the “Estimated Closing Balance Sheet”) (except for such deviations from GAAP as are specifically described in Schedule 2.3(a)(i) hereto), together with a statement reflecting the Company’s good faith estimate of the Estimated Base Purchase Price and the Estimated Net Working Capital, which shall be prepared applying the methodologies and assumptions set forth payable on Schedule 2.3(a)(ii) applied in the calculation of the Net Working Capital as of December 31, 2008, a copy of which is attached hereto as Schedule 2.3(a)(ii).
(b) On the Closing Date, Purchaser shall pay the Estimated Base Purchase Price, to be paid Date as follows:
a. The Purchaser's delivery to OCPS of cashier's checks or wire transfers from the Purchaser payable to OCPS in the aggregate amount of ONE MILLION FIFTY THOUSAND DOLLARS (i) The Escrow Amount to the Escrow Agent to be available $1,050,000), as a non-exclusive source capital contribution to OCPS;
b. OCPS's delivery to RBA and Insource of cashier's checks or wire transfers from OCPS payable to RBA and Insource in the aggregate amount of ONE MILLION FIFTY THOUSAND DOLLARS (subject to $1,050,000); which amount shall be distributed amongst the limitations Mohrmanns and the ▇▇▇▇▇▇' at the Closing as set forth in Article VIII hereof) Schedule 1.4.1; ---------------
c. The Purchaser's delivery to the Shareholders of funds to satisfy claims by cashier's checks or wire transfers from the Purchaser payable to the Mohrmanns and the ▇▇▇▇▇' in the aggregate amount of THREE MILLION TWO HUNDRED TWENTY-FIVE THOUSAND DOLLARS ($3,225,000), to be distributed amongst the Mohrmanns and the ▇▇▇▇▇' in the amounts set forth in Schedule 1.
4.1. The amounts payable to the Mohrmanns -------------- and the ▇▇▇▇▇' will be increased or any Purchaser Indemnitee) decreased, on a dollar for indemnification by dollar basis, to the Stockholders pursuant to this Agreementextent the Former Shareholder Debt at the closing decreases or increases from the amount set forth in Section 1.4.2;
d. Purchaser's delivery of convertible promissory notes (iithe "Promissory Notes") The Indebtedness in favor of RBA, Insource, the Mohrmanns and the ▇▇▇▇▇'▇ in the principal amounts set forth in Schedule 1.4.1, for Borrowed Money and any unpaid Transaction Expenses in accordance with the Payoff Instructions contemplated by Section 2.3(k) hereof; and
an aggregate principal -------------- balance of THREE MILLION ONE HUNDRED FIFTY THOUSAND DOLLARS (iii) The Indemnification Expense Cash to the Seller Representatives’ Custody Account.
(iv) To $3,150,000), each Stockholder, a promissory note, (each a “Note” and collectively the “Notes”) in the form attached hereto as Exhibit D"B". The Promissory Notes shall bear ------------ interest at eight percent (8%) per annum, with an aggregate amount equal to Fifteen million fortyshall be payable in monthly installments of interest only for a period of twenty-nine thousand one hundred twenty three dollars and seventy four cents ($15,049,123.7424) months ("Term"), made payable subject to each Stockholder pro rata (determined in accordance with extension upon the respective percentages terms set forth on Schedule 2.3(b) (the “Pro Rata Portions”).
(c) Following the Closing Date, Purchaser shall prepare the Closing Balance Sheet and a statement (the “Closing Date Statement”) reflecting the Purchaser’s determination of Net Working Capital as of the Adjusted Time, as determined in accordance with GAAP (as in effect as of the Adjusted Time), consistently applied by the Company, which determination shall be prepared applying the methodologies and assumptions set forth on Schedule 2.3(a)(ii) applied in the calculation of the Net Working Capital as of December 31, 2008, a copy of which is attached hereto as Schedule 2.3(a)(ii), to the extent such methodologies and assumptions are compliant with GAAP. Purchaser shall deliver the Closing Balance Sheet and Closing Date Statement (collectively, the “Post-Closing Statement”) to the Seller Representatives within one hundred twenty (120) calendar days after the Closing Date. In addition, the Purchaser shall make available to the Seller Representatives (upon execution by the Seller Representatives of a confidentiality agreement reasonably acceptable to Purchaser) such information of Purchaser as Seller Representatives shall reasonably request (such request to be made in writing) to review the Post-Closing Statement; provided, however, that the Purchaser shall have no obligation to provide any work papers or other materials owned by or belonging to KPMG LLP. The Seller Representatives shall be entitled to object to any matter in the Post-Closing Statement in accordance with Section 2.3(e) below. If the Seller Representatives deliver to the Purchaser a Base Purchase Price Notice (as hereinafter defined), the Company and the Purchaser will request that KPMG LLP provide any work papers or other materials owned by or belonging to KPMG LLP relating to the Post-Closing Statement; provided that (i) the decision to provide such work papers or other materials and (ii) release(s)Promissory Notes, if any, required by KPMG LLP shall, in each case, and shall be determined by KPMG LLP, in its sole discretion.
(d) If the Seller Representatives do not object secured pursuant to the Post-Closing Statement in accordance with Section 2.3(e) within thirty (30) calendar days following their receipt terms and conditions of the Post-Closing Statementa security agreement, the Base Purchase Price set forth therein shall become final and binding on the Parties for all purposes of this Agreement.
(e) If the Seller Representatives object to any matter substantially in the Post-Closing Statementform attached hereto as Exhibit "C". The ------------ principal balance of each Promissory Note shall be convertible into Purchaser's Common Stock, the Seller Representatives shall, within thirty par value $.001 per share (30) calendar days after receipt of the Post-Closing Statement, give Purchaser written notice of such objection (the “Base Purchase Price Notice”"Purchaser's Common Stock"), which notice shall contain (i) a detailed explanation of each objected item and provide reasonable backup materials or information therefor, and (ii) at any time during the calculation by the Seller Representatives of the Base Purchase Price and the Net Working Capital as of immediately prior to the Adjusted Time.
(f) The Purchaser and the Seller Representatives shall negotiate in good faith to resolve any disputes. If the Purchaser and the Seller Representatives are unable to resolve all disputes within thirty (30) calendar days of receipt by the Purchaser of the Base Purchase Price Notice, then only the unresolved disputes shall be submitted by either Party for resolution to a nationally recognized accounting firm mutually agreed on by the Purchaser and the Seller Representatives and not currently or within the past thirty-six (36) months engaged by any of the Sellers or the Purchaser, or any of their respective Affiliates. Undisputed amounts shall be paid promptly as otherwise set forth in Section 2.3(h). The accounting firm so selected to resolve any such disputes is hereinafter referred to as the “Independent Accountants.” In accordance with the procedures set forth in Section 2.3(g), the Independent Accountants shall promptly, and in any event within sixty (60) calendar days after submission of any disputed items to the Independent Accountants pursuant to this Section 2.3(f), render their decision on the matters in dispute in writing and determine the Base Purchase Price and the accurate Net Working Capital of the Company as of the Adjusted Time, which decision and determination shall be final and binding on the parties. The Independent Accountants shall determine the proportion of their fees and expenses to be paid by each of the Purchaser and the Stockholders pursuant to this Section 2.3(f), which fees and expenses shall be allocated pro rata based on the percentage which the portion of the contested amount of the Base Purchase Price not awarded to each party bears to the amount of the Base Purchase Price actually contested by such party.
(g) The following shall apply when any matter is submitted to the Independent Accountants for resolution pursuant to Sections 2.3(f), 2.4(e) or 7.1 hereof:
(i) each of the Purchaser, on one hand, and the Seller Representatives, on the other hand, shall furnish, at its own expense, the Independent Accountants and the other party with such documents and information as the Independent Accountants may request;
(ii) each of the Purchaser and the Seller Representatives may also furnish to the Independent Accountants such other information and documents as they deems relevant with appropriate copies or notifications being given to the other party;
(iii) the Independent Accountants may, in their discretion, conduct a conference concerning the disagreement with the Purchaser and the Seller Representatives, at which conference each party shall have the right to present additional documents, materials and other information and to have present its advisors, counsel and accountants; provided that in connection with such process, there shall be no hearings, oral examinations, testimony, depositions, discovery or other similar proceedings conducted by any party or by the Independent Accountants;
(iv) the Independent Accountants’ decision on each disputed item shall (x) be within the range of amounts claimed by the parties, or (y) if outside the range of amounts claimed by the parties, deemed to be the amount of whichever party’s determination was closest to that of the Independent Accountants; and
(v) the Independent Accountants’ jurisdiction to resolve disputes pursuant to this Agreement shall be limited to accounting matters and the fee and expense matters expressly contemplated by this Agreement, and neither party shall be limited or precluded, by virtue of Sections 2.3(f), 2.4(e), 7.1 or this Section 2.3(g) from bringing any legal suit, action or claim relating to other matters, including fraud or the breach of any representation, warranty, covenant, obligation or agreement hereunder.
(h) If the Base Purchase Price as finally determined pursuant to this Section 2.3 is greater than the Estimated Base Purchase Price, then the Purchaser shall pay to each Stockholder such Stockholder’s Pro Rata Portion of the amount equal to the amount by which the Base Purchase Price exceeds the Estimated Base Purchase Price plus interest thereon for the period beginning on the Closing Date and ending on the date of payment pursuant to this Section 2.3 at an interest rate equal to the Prime Rate. If the Estimated Base Purchase Price exceeds the Base Purchase Price as finally determined pursuant to this Section 2.3, then each Stockholder, shall pay to the Purchaser such Stockholder’s Pro Rata Portion of the aggregate amount equal to the amount by which the Estimated Base Purchase Price exceeds the Base Purchase Price plus interest thereon for the period beginning on the Closing Date and ending on the date of payment pursuant to this Section 2.3 at an interest rate equal to the Prime Rate. Any payments and adjustments pursuant to this Section 2.3(h) shall be made, by wire transfer of immediately available funds to the account(s) designated in writing by the Seller Representatives or the Purchaser, as the case may be, within five (5) Business Days after the final determination of the Base Purchase Price pursuant to this Section 2.3.
(i) During Purchaser’s preparation of the Post-Closing Statement and the period of any dispute within the contemplation of this Section 2.3, for purposes of preparing the Post-Closing Statement, the Stockholders shall cooperate with the Purchaser and the Purchaser’s authorized representatives, including providing, on a timely basis, such additional information as may be reasonably necessary to prepare the Post-Closing Statement.
(j) The Escrow Amount shall be held and disbursed Term in accordance with the terms and conditions of the Escrow Agreement.
(k) At least two (2) business Promissory Notes. The Promissory Notes may be prepaid, at the option of the Purchaser, upon 60 days prior to notice. If, at the Closing Dateend of the Term, any Promissory Notes have not been converted, the Seller Representatives shall submit documentation (the “Payoff Instructions”) setting forth the amount remaining principal balance of all Indebtedness for Borrowed Money such Promissory Notes and all accrued but unpaid Transaction Expenses, in each case as of the Adjusted Time, including the identity of each recipient, dollar amounts, wire instructions and any other information necessary to effect payment thereof. At the Closing, the Purchaser shall pay on behalf of the Sellers (or provide the Company with funds sufficient to enable the Company to pay): (i) all of the fees and expenses owed as of the Adjusted Time by the Company or the Stockholders to their attorneys, accountants or financial advisors or otherwise incurred in connection with the transactions contemplated hereby (such fees being referred to as the “Transaction Expenses”) and (ii) all of the Indebtedness for Borrowed Money as of the Adjusted Time. At the Closing, the Company and the Seller Representatives shall deliver to the Purchaser (x) pay-off letters, releases and lien discharges (or agreements therefor) with respect to all of the Indebtedness for Borrowed Money, from each creditor to whom such Indebtedness for Borrowed Money is owed and (y) receipts evidencing the amount of Transaction Expenses being paid by the Purchaser at Closing, all of which interest thereon shall be paid in a form and substance satisfactory to the Purchaserfull.
Appears in 1 contract
Sources: Purchase Agreement (Cypress Financial Services Inc)
Base Purchase Price. (a) No more than five (5) nor fewer than three (3) Business Days before the Closing, the Company shall furnish to Purchaser the Company’s good faith estimate of the balance sheet of the Company as of the Adjusted Time, prepared in accordance with GAAP (as in effect as of the Adjusted Time), consistently applied by the Company (such estimate of the balance sheet the “Estimated Closing Balance Sheet”) (except for such deviations from GAAP as are specifically described in Schedule 2.3(a)(i) hereto), together with a statement reflecting the Company’s good faith estimate of the Estimated The Base Purchase Price and the Estimated Net Working Capital, which shall be prepared applying the methodologies and assumptions set forth on Schedule 2.3(a)(ii) applied in the calculation of the Net Working Capital as of December 31, 2008, a copy of which is attached hereto as Schedule 2.3(a)(ii).
(b) On the Closing Date, Purchaser shall pay the Estimated Base Purchase Price, to be paid as follows:
(i) The Escrow Amount to an amount of €43,200,000 (FORTY THREE MILLION TWO HUNDRED THOUSAND EUROS), plus the Escrow Agent to be available as a non-exclusive source (subject to amount of the limitations Estimated Closing Date Cash Balance set forth out in Article VIII hereofSchedule 1.5.(c)(i) of funds to satisfy claims by the Purchaser (or any Purchaser Indemnitee) for indemnification by the Stockholders pursuant to this Agreement;
(ii) The Indebtedness for Borrowed Money and any unpaid Transaction Expenses in accordance with the Payoff Instructions contemplated by Section 2.3(k) hereof; and
(iii) The Indemnification Expense Cash attached hereto, is paid to the Seller Representatives’ Custody Account.
on the date hereof in cash by wire transfer in immediately available funds to the to the Seller’s bank account (iv) To each Stockholder, a promissory note, (each a “Note” and collectively the “NotesSeller’s Bank Account”) in the form attached hereto as Exhibit D, with an aggregate amount equal to Fifteen million forty-nine thousand one hundred twenty three dollars and seventy four cents ($15,049,123.74), made payable to each Stockholder pro rata (determined in accordance with the respective percentages set forth on Schedule 2.3(b) (the “Pro Rata PortionsClosing Cash Payment”).
(cii) Following an amount of €28,800,000 (TWENTY-EIGHT MILLION EIGHT HUNDRED THOUSAND EUROS), (the “Cash for G-Shares”), is transferred directly by the Purchaser to Globant Lux for the subscription and payment on behalf of the Seller and issuance by Globant Lux, on the date hereof, of such number of Globant Lux restricted common shares as may be purchased at the price per share equal to the volume weighted average trading price of the publicly traded shares of Globant Lux during a period comprising 60 trading days ending on (but including) the tenth trading day prior to Closing Date, Purchaser shall prepare as quoted in the Closing Balance Sheet and a statement New York Stock Exchange (NYSE:GLOB) (the “Closing Date StatementG-Shares”) reflecting ). For the Purchaser’s determination of Net Working Capital as subscription and issuance of the Adjusted TimeG-Shares, as determined in accordance with GAAP (as in effect as of the Adjusted Time), consistently applied by the Company, which determination shall be prepared applying the methodologies and assumptions set forth on Schedule 2.3(a)(ii) applied in the calculation of the Net Working Capital as of December 31, 2008, a copy of which is attached hereto as Schedule 2.3(a)(ii), to the extent such methodologies and assumptions are compliant with GAAP. Purchaser shall deliver the Closing Balance Sheet and Closing Date Statement (collectivelyat Closing, the Seller and Globant Lux have executed the subscription agreement attached as Exhibit 1.3.(a)(ii) hereto (the “Post-Closing StatementSubscription Agreement”) to the Seller Representatives within one hundred twenty (120) calendar days after the Closing Date. In addition, the Purchaser shall make available to the Seller Representatives (upon execution by the Seller Representatives of a confidentiality agreement reasonably acceptable to Purchaser) such information of Purchaser as Seller Representatives shall reasonably request (such request to be made in writing) to review the Post-Closing Statement); provided, however, that the Purchaser shall have no obligation to provide any work papers or other materials owned by or belonging to KPMG LLP. The Seller Representatives shall be entitled to object to any matter in the Post-Closing Statement Seller, in accordance with Section 2.3(eRule 506(b) below. If of Regulation D under the US Securities Act of 1933, as amended, has also completed, executed and delivered to Globant Lux the questionnaire attached thereto to verify its qualification as “accredited investor” under applicable US Law; provided, further, that the Subscription Agreement includes provisions subjecting the G-Shares to a lock-up period, during which the Seller Representatives deliver will not be permitted to the Purchaser a Base Purchase Price Notice (as hereinafter defined)transfer, the Company and the Purchaser will request that KPMG LLP provide sell, pledge or in any work papers or other materials owned by or belonging to KPMG LLP relating to the Post-Closing Statement; provided that (i) the decision to provide such work papers or other materials and (ii) release(s), if any, required by KPMG LLP shall, in each case, be determined by KPMG LLP, in its sole discretion.
(d) If the Seller Representatives do not object to the Post-Closing Statement in accordance with Section 2.3(e) within thirty (30) calendar days following their receipt of the Post-Closing Statement, the Base Purchase Price set forth therein shall become final and binding on the Parties for all purposes of this Agreement.
(e) If the Seller Representatives object to any matter in the Post-Closing Statement, the Seller Representatives shall, within thirty (30) calendar days after receipt of the Post-Closing Statement, give Purchaser written notice manner dispose of such objection shares (the “Base Purchase Price NoticeLock-Up”), which notice shall contain be lifted on a staggered schedule, as follows: (iA) a detailed explanation 34% of each objected item and provide reasonable backup materials or information thereforthe G-Shares received shall be released from the Lock-Up on the 6th month anniversary from the Closing Date, (B) an additional 33% of the G-Shares received shall be released from the Lock-Up on the 12th month anniversary from the Closing Date, and (iiC) the calculation by the Seller Representatives remaining 33% of the Base Purchase Price and G-Shares received shall be released from the Net Working Capital as of immediately prior to Lock-Up on the Adjusted Time.
(f) The Purchaser and the Seller Representatives shall negotiate in good faith to resolve any disputes. If the Purchaser and the Seller Representatives are unable to resolve all disputes within thirty (30) calendar days of receipt by the Purchaser 18th month anniversary of the Base Purchase Price Notice, then only the unresolved disputes shall be submitted by either Party for resolution to a nationally recognized accounting firm mutually agreed on by the Purchaser and the Seller Representatives and not currently or within the past thirty-six (36) months engaged by any of the Sellers or the Purchaser, or any of their respective Affiliates. Undisputed amounts shall be paid promptly as otherwise set forth in Section 2.3(h). The accounting firm so selected to resolve any such disputes is hereinafter referred to as the “Independent Accountants.” In accordance with the procedures set forth in Section 2.3(g), the Independent Accountants shall promptly, and in any event within sixty (60) calendar days after submission of any disputed items to the Independent Accountants pursuant to this Section 2.3(f), render their decision on the matters in dispute in writing and determine the Base Purchase Price and the accurate Net Working Capital of the Company as of the Adjusted Time, which decision and determination shall be final and binding on the parties. The Independent Accountants shall determine the proportion of their fees and expenses to be paid by each of the Purchaser and the Stockholders pursuant to this Section 2.3(f), which fees and expenses shall be allocated pro rata based on the percentage which the portion of the contested amount of the Base Purchase Price not awarded to each party bears to the amount of the Base Purchase Price actually contested by such party.
(g) The following shall apply when any matter is submitted to the Independent Accountants for resolution pursuant to Sections 2.3(f), 2.4(e) or 7.1 hereof:
(i) each of the Purchaser, on one hand, and the Seller Representatives, on the other hand, shall furnish, at its own expense, the Independent Accountants and the other party with such documents and information as the Independent Accountants may request;
(ii) each of the Purchaser and the Seller Representatives may also furnish to the Independent Accountants such other information and documents as they deems relevant with appropriate copies or notifications being given to the other partyClosing Date;
(iii) the Independent Accountants mayan amount of €14,000,000 (FOURTEEN MILLION EUROS) less any adjustments, set-off or deductions as provided in their discretionthis Agreement, conduct a conference concerning the disagreement with the Purchaser including those contemplated in Section 1.5., ARTICLE 7, ARTICLE 8 and ARTICLE 9 shall be paid to the Seller Representativesno later than March 31, at which conference each party shall have 2022 in cash by wire transfer in immediately available funds to the right to present additional documents, materials and other information and to have present its advisors, counsel and accountants; provided that in connection with such process, there shall be no hearings, oral examinations, testimony, depositions, discovery or other similar proceedings conducted by any party or by Seller’s Bank Account (the Independent Accountants“Second Installment Cash Payment”);
(iv) the Independent Accountants’ decision on each disputed item shall (x) be within the range of amounts claimed by the parties, or (y) if outside the range of amounts claimed by the parties, deemed to be the an amount of whichever party€8,400,000 (EIGHT MILLION FOUR HUNDRED THOUSAND EUROS) less any adjustments, set-off or deductions as provided in this Agreement, including those contemplated in Section 1.5., ARTICLE 7, ARTICLE 8 and ARTICLE 9 shall be paid to the Seller no later than March 31, 2023 in cash by wire transfer in immediately available funds to Seller’s determination was closest to that of Bank Account (the Independent Accountants“Third Installment Cash Payment”); and
(v) the Independent Accountants’ jurisdiction to resolve disputes pursuant to this Agreement shall be limited to accounting matters and the fee and expense matters expressly contemplated by an amount of €5,600,000 (FIVE MILLION SIX HUNDRED THOUSAND EUROS) less any adjustments, set-off or deductions as provided in this Agreement, including those contemplated in Section 1.5., ARTICLE 7, ARTICLE 8 and neither party ARTICLE 9 shall be limited or precluded, by virtue of Sections 2.3(f), 2.4(e), 7.1 or this Section 2.3(g) from bringing any legal suit, action or claim relating to other matters, including fraud or the breach of any representation, warranty, covenant, obligation or agreement hereunder.
(h) If the Base Purchase Price as finally determined pursuant to this Section 2.3 is greater than the Estimated Base Purchase Price, then the Purchaser shall pay to each Stockholder such Stockholder’s Pro Rata Portion of the amount equal paid to the amount by which the Base Purchase Price exceeds the Estimated Base Purchase Price plus interest thereon for the period beginning on the Closing Date and ending on the date of payment pursuant to this Section 2.3 at an interest rate equal to the Prime Rate. If the Estimated Base Purchase Price exceeds the Base Purchase Price as finally determined pursuant to this Section 2.3Seller no later than August 31, then each Stockholder, shall pay to the Purchaser such Stockholder’s Pro Rata Portion of the aggregate amount equal to the amount by which the Estimated Base Purchase Price exceeds the Base Purchase Price plus interest thereon for the period beginning on the Closing Date and ending on the date of payment pursuant to this Section 2.3 at an interest rate equal to the Prime Rate. Any payments and adjustments pursuant to this Section 2.3(h) shall be made, 2024 in cash by wire transfer of in immediately available funds to the account(s) designated in writing by the Seller Representatives or the Purchaser, as the case may be, within five (5) Business Days after the final determination of the Base Purchase Price pursuant to this Section 2.3.
(i) During PurchaserSeller’s preparation of the Post-Closing Statement and the period of any dispute within the contemplation of this Section 2.3, for purposes of preparing the Post-Closing Statement, the Stockholders shall cooperate with the Purchaser and the Purchaser’s authorized representatives, including providing, on a timely basis, such additional information as may be reasonably necessary to prepare the Post-Closing Statement.
(j) The Escrow Amount shall be held and disbursed in accordance with the terms of the Escrow Agreement.
(k) At least two (2) business days prior to the Closing Date, the Seller Representatives shall submit documentation Bank Account (the “Payoff Instructions”) setting forth the amount of all Indebtedness for Borrowed Money Fourth Installment Cash Payment” and all unpaid Transaction Expenses, in each case as of the Adjusted Time, including the identity of each recipient, dollar amounts, wire instructions and any other information necessary to effect payment thereof. At the Closing, the Purchaser shall pay on behalf of the Sellers (or provide the Company with funds sufficient to enable the Company to pay): (i) all of the fees and expenses owed as of the Adjusted Time by the Company or the Stockholders to their attorneys, accountants or financial advisors or otherwise incurred in connection together with the transactions contemplated hereby (such fees being referred to as Second Installment Cash Payment and the Third Installment Cash Payment the “Transaction ExpensesDeferred Cash Payments”) and (ii) all of the Indebtedness for Borrowed Money as of the Adjusted Time. At the Closing, the Company and the Seller Representatives shall deliver to the Purchaser (x) pay-off letters, releases and lien discharges (or agreements therefor) with respect to all of the Indebtedness for Borrowed Money, from each creditor to whom such Indebtedness for Borrowed Money is owed and (y) receipts evidencing the amount of Transaction Expenses being paid by the Purchaser at Closing, all of which shall be in a form and substance satisfactory to the Purchaser).
Appears in 1 contract
Base Purchase Price. (a) No more than five (5) nor fewer than three (3) Business Days before the Closing, the Company shall furnish to Purchaser the Company’s good faith estimate of the balance sheet of the Company as of the Adjusted Time, prepared in accordance with GAAP (as in effect as of the Adjusted Time), consistently applied by the Company (such estimate of the balance sheet the “Estimated Closing Balance Sheet”) (except for such deviations from GAAP as are specifically described in Schedule 2.3(a)(i) hereto), together with a statement reflecting the Company’s good faith estimate of the Estimated The Base Purchase Price and the Estimated Net Working Capital, which shall be prepared applying the methodologies and assumptions set forth on Schedule 2.3(a)(ii) applied in the calculation of the Net Working Capital as of December 31, 2008, a copy of which is attached hereto as Schedule 2.3(a)(ii).
(b) On the Closing Date, Purchaser shall pay the Estimated Base Purchase Price, to be paid as follows:
(i) The Escrow Amount an amount of US$42,000,000 (forty-two million US Dollars) less any deduction or withholding as provided in Sections 1.5(c)(ii) and 10.1, shall be paid to the Escrow Agent to be Sellers at Closing in cash by wire transfer in immediately available as a non-exclusive source (subject funds to the limitations set forth accounts informed in Article VIII hereof) the Flow of funds to satisfy claims by Funds Instructions (the Purchaser (or any Purchaser Indemnitee) for indemnification by the Stockholders pursuant to this Agreement;“Closing Cash Payment”); and
(ii) The Indebtedness an amount of US$20,000,000 (twenty million US Dollars) less any adjustments, deductions or withholdings as provided in Sections 1.3, 1.4, 1.5, ARTICLE 7 and ARTICLE 10 (the “Cash for Borrowed Money G-Shares Subscription”), shall be paid to the Sellers as follows:
(1) an amount of US$3,000,000 (three million US Dollars) less any deduction or withholding as provided in Sections 1.5(c)(ii) and any unpaid Transaction Expenses 10.1 (the “Cash for G-Shares Tranche 1”) will be transferred directly by the Purchasers to Globant Lux for the subscription and payment on behalf of the Sellers and issuance by Globant Lux, at Closing, of such number of Globant Lux restricted common shares as may be purchased at the price per share resulting from the volume weighted average trading price of the publicly traded shares of Globant Lux during a period comprising 60 trading days ending on (but including) the second trading day prior to Closing, as quoted in accordance with the Payoff Instructions contemplated by Section 2.3(kNew York Stock Exchange (NYSE:GLOB) hereof(the “G-Shares Tranche 1”). At least one Business Day prior to Closing the Purchasers shall inform the Sellers in writing the price for each G-Shares Tranche 1, including reasonable detail of its calculation; and
(iii2) The Indemnification Expense Cash to the Seller Representatives’ Custody Account.
an amount of US$17,000,000 (ivseventeen million US Dollars) To each Stockholderless any adjustments, a promissory notedeductions or withholdings as provided in Sections 1.3, Section 1.4, Section 1.5, ARTICLE 7 and ARTICLE 10 (each a “Note” and collectively the “NotesCash for G-Shares Tranche 2”) in the form attached hereto as Exhibit D, with an aggregate amount equal to Fifteen million forty-nine thousand one hundred twenty three dollars and seventy four cents ($15,049,123.74), made payable will be transferred directly by the Purchasers to each Stockholder pro rata Globant Lux for the subscription and payment on behalf of the Sellers and issuance by Globant Lux, on the date that is the twenty-fourth (determined 24th) month anniversary of the Closing (unless such date is not a Business Day in accordance with which case, the respective percentages set forth on Schedule 2.3(bsubscription and issuance shall take place the next Business Day) (the “Pro Rata PortionsTranche 2 Subscription Date”), of such number of Globant Lux restricted common shares as may be purchased at the price per share resulting from the volume weighted average trading price of the publicly traded shares of Globant Lux during a period comprising 60 trading days ending on (but including) the second trading day prior to the Tranche 2 Subscription Date, as quoted in the New York Stock Exchange (NYSE:GLOB) (the “G-Shares Tranche 2”). At least one Business Day prior to the Tranche 2 Subscription Date the Purchasers shall inform the Sellers in writing the price for each G-Shares Tranche 2, including reasonable detail of its calculation.
(c3) Following an amount corresponding to the Closing Withheld Amount for Pending Brazilian Litigation less such amounts of the Pending Brazilian Litigation that, on or prior to the Deferred Tranche 2 Subscription Date, Purchaser shall prepare the Closing Balance Sheet has not been successfully concluded and a statement discharged in accordance with Section 7.6 less any deduction or withholding provided in Section 10.1 (the “Closing Date StatementCash for G-Shares Deferred Tranche 2”) reflecting will be transferred directly by the Purchaser’s determination of Net Working Capital as Purchasers to Globant Lux for the subscription and payment on behalf of the Adjusted TimeSellers and issuance by Globant Lux, on the date that is the thirty sixth (36th) month anniversary of the Closing (unless such date is not a Business Day in which case, the subscription and issuance shall take place the next Business Day) (the “Deferred Tranche 2 Subscription Date”), of such number of Globant Lux restricted common shares as may be purchased at the price per share resulting from the volume weighted average trading price of the publicly traded shares of Globant Lux during a period comprising 60 trading days ending on (but including) the second trading day prior to the Deferred Tranche 2 Subscription Date, as determined in accordance with GAAP (as in effect as of the Adjusted Time), consistently applied by the Company, which determination shall be prepared applying the methodologies and assumptions set forth on Schedule 2.3(a)(ii) applied quoted in the calculation of New York Stock Exchange (NYSE:GLOB) (the Net Working Capital as of December 31“G-Shares Deferred Tranche 2,” and together with the G-Shares Tranche 1, 2008, a copy of which is attached hereto as Schedule 2.3(a)(ii), to and the extent such methodologies and assumptions are compliant with GAAP. Purchaser shall deliver the Closing Balance Sheet and Closing Date Statement (collectivelyG-Shares Tranche 2, the “PostG-Closing StatementShares”) ). At least one Business Day prior to the Seller Representatives within Deferred Tranche 2 Subscription Date the Purchasers shall inform the Sellers in writing the price for each G-Shares Deferred Tranche 2, including reasonable detail of its calculation.
(4) For the subscription and issuance of the G-Shares, at Closing, each of the Sellers and Globant Lux shall execute a subscription agreement in one hundred twenty of the forms attached as Exhibit 1.3.(a)(4) hereto, as applicable (120) calendar days after the Closing Date. In additioneach, the Purchaser shall make available to the Seller Representatives (upon execution by the Seller Representatives of a confidentiality agreement reasonably acceptable to Purchaser) such information of Purchaser as Seller Representatives shall reasonably request (such request to be made in writing) to review the Post-Closing Statement“Subscription Agreement”); provided, however, that IFC, HSBC I and HSBCII to the Purchaser shall have no obligation to provide any work papers or other materials owned by or belonging to KPMG LLP. The Seller Representatives shall be entitled to object to any matter in extent effecting the Post-Closing Statement subscription in accordance with Section 2.3(eRule 506(b) below. If of Regulation D under the Seller Representatives US Securities Act of 1933, as amended, shall also complete, execute and deliver to Globant Lux the Purchaser a Base Purchase Price Notice (questionnaire attached thereto to verify its qualification as hereinafter defined), the Company and the Purchaser will request that KPMG LLP provide any work papers or other materials owned by or belonging to KPMG LLP relating to the Post-Closing Statement; provided that (i) the decision to provide such work papers or other materials and (ii) release(s), if any, required by KPMG LLP shall, in each case, be determined by KPMG LLP, in its sole discretion“accredited investor” under applicable US Law.
(d5) If the Seller Representatives do not object The Purchasers shall be jointly and severally liable with respect to the Postobligations assumed by Globant Lux under the Subscription Agreements. If, for any reason whatsoever, Globant Lux fails to issue any of the G-Closing Statement Shares in accordance with Section 2.3(eparagraphs (1), (2) and (3) above and the applicable Subscription Agreement, which failure is not cured within thirty ten (3010) calendar days following their receipt of the Post-Closing StatementBusiness Days, the Base Purchase Price set forth therein shall become final and binding on the Parties for all purposes of this Agreement.
(e) If the Seller Representatives object to any matter in the Post-Closing Statement, the Seller Representatives Purchasers shall, within thirty (30) calendar days after receipt of immediately upon request, pay to Sellers the Post-Closing Statement, give Purchaser written notice of such objection (the “Base Purchase Price Notice”), which notice shall contain (i) a detailed explanation of each objected item and provide reasonable backup materials or information therefor, and (ii) the calculation by the Seller Representatives of the Base Purchase Price and the Net Working Capital as of immediately prior amount in US Dollars corresponding to the Adjusted Time.
(f) The Purchaser Cash for G-Shares Tranche 1, Cash for G-Shares Tranche 2 and the Seller Representatives shall negotiate in good faith to resolve any disputes. If the Purchaser and the Seller Representatives are unable to resolve all disputes within thirty (30) calendar days of receipt by the Purchaser of the Base Purchase Price NoticeCash for G-Shares Deferred Tranche 2, then only the unresolved disputes shall be submitted by either Party for resolution to a nationally recognized accounting firm mutually agreed on by the Purchaser and the Seller Representatives and not currently or within the past thirty-six (36) months engaged by any of the Sellers or the Purchaser, or any of their respective Affiliates. Undisputed amounts shall be paid promptly as otherwise set forth in Section 2.3(h). The accounting firm so selected to resolve any such disputes is hereinafter referred to as the “Independent Accountants.” In accordance with the procedures set forth in Section 2.3(g), the Independent Accountants shall promptly, and in any event within sixty (60) calendar days after submission of any disputed items to the Independent Accountants pursuant to this Section 2.3(f), render their decision on the matters in dispute in writing and determine the Base Purchase Price and the accurate Net Working Capital of the Company as of the Adjusted Time, which decision and determination shall be final and binding on the parties. The Independent Accountants shall determine the proportion of their fees and expenses to be paid by each of the Purchaser and the Stockholders pursuant to this Section 2.3(f), which fees and expenses shall be allocated pro rata based on the percentage which the portion of the contested amount of the Base Purchase Price not awarded to each party bears to the amount of the Base Purchase Price actually contested by such party.
(g) The following shall apply when any matter is submitted to the Independent Accountants for resolution pursuant to Sections 2.3(f), 2.4(e) or 7.1 hereof:
(i) each of the Purchaser, on one hand, and the Seller Representatives, on the other hand, shall furnish, at its own expense, the Independent Accountants and the other party with such documents and information as the Independent Accountants may request;
(ii) each of the Purchaser and the Seller Representatives may also furnish to the Independent Accountants such other information and documents as they deems relevant with appropriate copies or notifications being given to the other party;
(iii) the Independent Accountants may, in their discretion, conduct a conference concerning the disagreement with the Purchaser and the Seller Representatives, at which conference each party shall have the right to present additional documents, materials and other information and to have present its advisors, counsel and accountants; provided that in connection with such process, there shall be no hearings, oral examinations, testimony, depositions, discovery or other similar proceedings conducted by any party or by the Independent Accountants;
(iv) the Independent Accountants’ decision on each disputed item shall (x) be within the range of amounts claimed by the parties, or (y) if outside the range of amounts claimed by the parties, deemed to be the amount of whichever party’s determination was closest to that of the Independent Accountants; and
(v) the Independent Accountants’ jurisdiction to resolve disputes pursuant to this Agreement shall be limited to accounting matters and the fee and expense matters expressly contemplated by this Agreement, and neither party shall be limited or precluded, by virtue of Sections 2.3(f), 2.4(e), 7.1 or this Section 2.3(g) from bringing any legal suit, action or claim relating to other matters, including fraud or the breach of any representation, warranty, covenant, obligation or agreement hereunder.
(h) If the Base Purchase Price as finally determined pursuant to this Section 2.3 is greater than the Estimated Base Purchase Price, then the Purchaser shall pay to each Stockholder such Stockholder’s Pro Rata Portion of the amount equal to the amount by which the Base Purchase Price exceeds the Estimated Base Purchase Price plus interest thereon for the period beginning on the Closing Date and ending on the date of payment pursuant to this Section 2.3 at an interest rate equal to the Prime Rate. If the Estimated Base Purchase Price exceeds the Base Purchase Price as finally determined pursuant to this Section 2.3, then each Stockholder, shall pay to the Purchaser such Stockholder’s Pro Rata Portion of the aggregate amount equal to the amount by which the Estimated Base Purchase Price exceeds the Base Purchase Price plus interest thereon for the period beginning on the Closing Date and ending on the date of payment pursuant to this Section 2.3 at an interest rate equal to the Prime Rate. Any payments and adjustments pursuant to this Section 2.3(h) shall be made, by wire transfer of immediately available funds to the account(s) designated in writing by the Seller Representatives or the Purchaser, as the case may be, within five (5) Business Days after the final determination of the Base Purchase Price pursuant to this Section 2.3.
(i) During Purchaser’s preparation of the Post-Closing Statement and the period of any dispute within the contemplation of this Section 2.3, for purposes of preparing the Post-Closing Statement, the Stockholders shall cooperate with the Purchaser and the Purchaser’s authorized representatives, including providing, on a timely basis, such additional information as may be reasonably necessary to prepare the Post-Closing Statementcase.
(j) The Escrow Amount shall be held and disbursed in accordance with the terms of the Escrow Agreement.
(k) At least two (2) business days prior to the Closing Date, the Seller Representatives shall submit documentation (the “Payoff Instructions”) setting forth the amount of all Indebtedness for Borrowed Money and all unpaid Transaction Expenses, in each case as of the Adjusted Time, including the identity of each recipient, dollar amounts, wire instructions and any other information necessary to effect payment thereof. At the Closing, the Purchaser shall pay on behalf of the Sellers (or provide the Company with funds sufficient to enable the Company to pay): (i) all of the fees and expenses owed as of the Adjusted Time by the Company or the Stockholders to their attorneys, accountants or financial advisors or otherwise incurred in connection with the transactions contemplated hereby (such fees being referred to as the “Transaction Expenses”) and (ii) all of the Indebtedness for Borrowed Money as of the Adjusted Time. At the Closing, the Company and the Seller Representatives shall deliver to the Purchaser (x) pay-off letters, releases and lien discharges (or agreements therefor) with respect to all of the Indebtedness for Borrowed Money, from each creditor to whom such Indebtedness for Borrowed Money is owed and (y) receipts evidencing the amount of Transaction Expenses being paid by the Purchaser at Closing, all of which shall be in a form and substance satisfactory to the Purchaser.
Appears in 1 contract