Determination of the Final Purchase Price. (a) The Purchase Price has been estimated as provided in and Sections 1.1 and 2. 1. The Parties intend that the Purchase Price shall be finalized as provided in this Section 2.2. The Buyer shall prepare and deliver to the Sellers’ Representative within seventy five (75) days after the Closing Date (i) the balance sheet of the Company as of the Closing Date (the “Proposed Closing Date Balance Sheet”) together with any supporting documents as Sellers’ Representative may reasonably request and (ii) calculations of (a) the Proposed Debt, (b) the Proposed Change in Net Stockholders’ Equity Amount (all collectively referred to herein as the “Proposed Closing Date Financial Statements”) and (c) the final Purchase Price as proposed by the Buyer (the “Proposed Purchase Price”). The Proposed Closing Date Financial Statements shall be prepared by the Acquired Companies in accordance with GAAP and in a manner consistent with the GAAP accounting principles set forth on Schedule 2.2(a); provided however, that the proposed Closing Date Financial Statements shall not reflect any losses, expenses or reserves attributable to any Wind Holdback Event to the extent the Buyer is entitled to recover such losses, expense or reserves from the Wind Holdback Amount. The Parties shall ensure that the employees of the Acquired Companies responsible for and knowledgeable about the information used in, and the preparation of, the Proposed Closing Date Financial Statements and the calculation of the Proposed Purchase Price are reasonably available to the Sellers’ Representative for consultation after delivery of the Proposed Closing Date Financial Statements and the Proposed Purchase Price calculation. Within ten (10) days after its receipt of the Proposed Closing Date Financial Statements, the Seller’s Representative may request that the Buyer cause the Acquired Companies to provide or provide access to the Sellers’ Representative on a timely basis all books and records and other information reasonably requested by the Seller’s Representative used by the Acquired Companies in calculating the Proposed Closing Date Financial Statements and the Proposed Purchase Price. The Buyer shall cause the Acquired Companies to comply with such request within ten (10) days after the Seller’s Representative’s request. The Proposed Purchase Price shall be deemed final and binding upon the Sellers and the Buyer for all purposes of this Agreement, except to the extent that the Sellers’ Representative delivers a written objection notice to the Buyer (the “Seller’s Objection Notice”) within seventy-five (75) days after the date the Sellers’ Representative receives the Proposed Closing Date Financial Statements. Seller’s Objection Notice shall set forth an explanation of each item to which the Sellers’ Representative takes exception, specifies in reasonable detail the nature and extent of each exception and provides the Sellers’ Representative’s calculation of the final Purchase Price as proposed by the Sellers’ Representative. If the Buyer disputes the Sellers’ Representative’s exceptions, then the Buyer and the Sellers’ Representative will negotiate in good faith to resolve such dispute and (i) the Sellers’ Representative shall make its employees and advisors responsible for and knowledgeable about the information used in, and the preparation of, the Seller’s Objection Notice reasonably available thereafter to the Buyer and (ii) Sellers’ Representative shall provide or provide access to the Buyer on a timely basis all books and records and other information reasonably requested by the by the Buyer used in calculating the Seller’s Objection Notice. (b) If, after thirty (30) days following the date on which the Buyer receives the Seller Objection Notice, the proposed changes still remain disputed, then the Buyer and the Sellers’ Representative will engage the Auditor to determine the Final Purchase Price and the Final Closing Date Balance Sheet. If requested by the Auditor, the Sellers’ Representative and the Buyer agree to execute an engagement letter that is acceptable to the parties acting together in good faith. All fees and expenses relating to the services to be performed by the Auditor (the “Auditor’s Fees”) shall be borne by the Sellers’ Representative and the Buyer in the same proportion as the Auditor’s resolution of the aggregate dollar amount of the Final Purchase Price such that the party with whom the Auditor more closely agrees pays a lesser portion of the Auditor’s Fees and the other party pays a greater portion. For example, should the items in dispute total in amount to One Thousand Dollars ($1,000), and the Auditor awards Six Hundred Dollars ($600) in favor of the Sellers’ Representative’s position, sixty percent (60%) of the Auditor’s Fees would be borne by the Buyer, and forty percent (40%) of the Auditor’s Fees would be borne by the Sellers’ Representative. The Auditor shall act as an arbitrator by written submission to determine the Final Purchase Price. The Auditor’s determination shall be based solely on the provisions of this Agreement and the presentations by the Sellers’ Representative and the Buyer (or their designated representatives) and not by independent review. If either the Buyer or the Sellers’ Representative furnishes a written submission or other material to the Auditor, such Party will simultaneously furnish a copy to the other Party. In connection with the matters contemplated by this Section 2.2(b), the both parties shall provide to the Auditor and the other party on a timely basis all books, records and other information necessary to a determination of the Final Purchase Price and the Final Closing Date Balance Sheet. The Auditor’s determination of the Final Purchase Price shall (i) not be less than the amount proposed by the Buyer and not more than the amount proposed by the Sellers’ Representative, (ii) be set forth in a written report consisting of a reasoned analysis and concluding in an award delivered to the Sellers’ Representative and the Buyer, (iii) direct the payment of funds in a manner consistent with such determination and (iv) allocate the Auditor’s Fees between the Sellers’ Representative and the Buyer in a manner consistent with this Section 2.2(b). The Auditor’s determination of the Final Purchase Price and the Final Closing Date Balance Sheet shall to the fullest extent permitted by applicable Laws be deemed final and binding upon the Sellers and the Buyer for all purposes of this Agreement.
Appears in 1 contract
Sources: Stock Purchase Agreement (Heritage Insurance Holdings, Inc.)
Determination of the Final Purchase Price. (ai) The Purchase Price has been estimated as provided in and Sections 1.1 and 2.
1. The Parties intend that No later than 60 days after the Purchase Price shall be finalized as provided in this Section 2.2. The Closing Date, Buyer shall prepare and deliver to Seller a statement (the Sellers’ Representative within seventy five “Proposed Final Purchase Price Statement”) consisting of (75x) days after the Closing Date (i) the a balance sheet of the Company as of the Closing Date but without giving effect to the Closing, prepared in good faith in accordance with the Accounting Principles and include the line items specified in Section 2.2 of the Company Disclosure Letter (the “Closing Balance Sheet”) and (y) a proposed calculation in reasonable detail of the Purchase Price (the “Proposed Closing Date Balance Sheet”) together with any supporting documents as Sellers’ Representative may reasonably request and (ii) calculations of (a) the Proposed Debt, (b) the Proposed Change in Net Stockholders’ Equity Amount (all collectively referred to herein as the “Proposed Closing Date Financial Statements”) and (c) the final Purchase Price as proposed by the Buyer (the “Proposed Final Purchase Price”). The .
(ii) If Seller does not give written notice of dispute (a “Purchase Price Dispute Notice”) to Buyer within 30 days after receiving the Proposed Closing Date Financial Statements shall be prepared by Final Purchase Price Statement, the Acquired Companies in accordance with GAAP and in a manner consistent with the GAAP accounting principles set forth on Schedule 2.2(a); provided however, parties hereto agree that the proposed Closing Date Financial Statements shall not reflect any losses, expenses or reserves attributable to any Wind Holdback Event to the extent the Buyer is entitled to recover such losses, expense or reserves from the Wind Holdback Amount. The Parties shall ensure that the employees of the Acquired Companies responsible for and knowledgeable about the information used in, and the preparation of, the Proposed Closing Date Financial Statements and the calculation of the Proposed Final Purchase Price are reasonably available to Statement shall become final, binding and conclusive upon the Sellers’ Representative for consultation after delivery of the Proposed Closing Date Financial Statements and the Proposed parties. If Seller gives a Purchase Price calculation. Within ten (10) days after its receipt of the Proposed Closing Date Financial Statements, the Seller’s Representative may request that the Buyer cause the Acquired Companies Dispute Notice to provide or provide access to the Sellers’ Representative on a timely basis all books and records and other information reasonably requested by the Seller’s Representative used by the Acquired Companies in calculating the Proposed Closing Date Financial Statements and the Proposed Purchase Price. The Buyer shall cause the Acquired Companies to comply with such request within ten (10) days after the Seller’s Representative’s request. The Proposed Purchase Price shall be deemed final and binding upon the Sellers and the Buyer for all purposes of this Agreement, except to the extent that the Sellers’ Representative delivers a written objection notice to the Buyer (the items and amounts in dispute, the “Seller’s Objection NoticeDisputed Purchase Price Items”) within seventysuch 30-five (75) days after day period, Seller and Buyer shall use reasonable efforts to resolve the Disputed Purchase Price Items during the 30-day period commencing on the date the Sellers’ Representative Buyer receives the Proposed Closing Date Financial Statements. Seller’s Objection Notice shall set forth an explanation of each item to which the Sellers’ Representative takes exception, specifies in reasonable detail the nature and extent of each exception and provides the Sellers’ Representative’s calculation of the final such Purchase Price as proposed by the Sellers’ RepresentativeDispute Notice from Seller. If the parties reach agreement with respect to any Disputed Purchase Price Items within such 30-day period, Buyer disputes shall revise the Sellers’ Representative’s exceptionsProposed Final Purchase Price Statement to reflect such agreement. If Seller and Buyer do not obtain a final written resolution of all Disputed Purchase Price Items within such 30-day period, then the Buyer and the Sellers’ Representative will negotiate in good faith to resolve such dispute and (i) the Sellers’ Representative shall make its employees and advisors responsible for and knowledgeable about the information used in, and the preparation of, the Seller’s Objection Notice reasonably available thereafter to the Buyer and (ii) Sellers’ Representative shall provide or provide access to the Buyer on a timely basis all books and records and other information reasonably requested by the by the Buyer used in calculating the Seller’s Objection Notice.
(b) If, after thirty (30) days following the date on which the Buyer receives the Seller Objection Notice, the proposed changes still remain disputed, then the Buyer and the Sellers’ Representative will engage the Auditor to determine the Final unresolved Disputed Purchase Price and the Final Closing Date Balance Sheet. If requested by the Auditor, the Sellers’ Representative and the Buyer agree to execute an engagement letter that is acceptable to the parties acting together in good faith. All fees and expenses relating to the services to be performed by the Auditor Items (the “Auditor’s FeesUnresolved Purchase Price Items”) shall be borne by submitted immediately to an office of PricewaterhouseCoopers LLP that is not in New York or Ohio but in a city in which PricewaterhouseCoopers LLP has a substantial presence (the Sellers’ Representative and “Accounting Firm”). The Accounting Firm shall be required to render a determination regarding the Buyer in the same proportion as the Auditor’s resolution Unresolved Purchase Price Items within 30 days after referral of the aggregate dollar amount of matter to the Final Purchase Price such that Accounting Firm, or as soon as practicable thereafter, which determination must be in accordance with the party with whom the Auditor more closely agrees pays a lesser portion of the Auditor’s Fees and the other party pays a greater portion. For example, should the items in dispute total in amount to One Thousand Dollars ($1,000), and the Auditor awards Six Hundred Dollars ($600) in favor of the Sellers’ Representative’s position, sixty percent (60%) of the Auditor’s Fees would be borne by the Buyer, and forty percent (40%) of the Auditor’s Fees would be borne by the Sellers’ Representative. The Auditor shall act as an arbitrator by written submission to determine the Final Purchase Price. The Auditor’s determination shall be based solely on the provisions terms of this Agreement and the presentations by the Sellers’ Representative in writing and the Buyer (or their designated representatives) and not by independent review. If either the Buyer or the Sellers’ Representative furnishes a written submission or other material to the Auditormust set forth, such Party will simultaneously furnish a copy to the other Party. In connection with the matters contemplated by this Section 2.2(b)in reasonable detail, the both parties shall provide to the Auditor and the other party on a timely basis all books, records and other information necessary to a therefor. The determination of the Final Purchase Price Accounting Firm shall be conclusive and binding upon Seller, Buyer and the Final Closing Date Balance Sheet. The Auditor’s Company absent manifest error, and judgment may be entered upon the determination of the Final Purchase Price shall (i) not Accounting Firm in any court having jurisdiction over the party against which such determination is to be less than the amount proposed by the Buyer and not more than the amount proposed by the Sellers’ Representative, (ii) be set forth in a written report consisting of a reasoned analysis and concluding in an award delivered to the Sellers’ Representative and the Buyer, enforced.
(iii) direct The Accounting Firm shall be required to make a determination with respect only to the payment of funds in a manner consistent with such determination Unresolved Purchase Price Items, and (iv) allocate the Auditor’s Fees between the Sellers’ Representative and the Buyer in a manner consistent with this Section 2.2(b2.2 and Accounting Principles, and in no event shall the Accounting Firm’s determination of Unresolved Purchase Price Items be for an amount outside the range of the parties’ disagreement. Each party shall use its reasonable best efforts to furnish to the Accounting Firm such work papers and other documents and information pertaining to the Unresolved Purchase Price Items as the Accounting Firm may request.
(iv) Buyer shall revise the Proposed Final Purchase Price Statement to reflect the determination of the Accounting Firm pursuant to this Section 2.2(c). The Auditor’s determination of “Final Purchase Price” means the Proposed Final Purchase Price and the Final Closing Date Balance Sheet shall as revised pursuant to the fullest extent permitted by applicable Laws be deemed final and binding upon the Sellers and the Buyer for all purposes of this AgreementSection 2.2(c).
Appears in 1 contract
Determination of the Final Purchase Price. (ai) The Purchase Price has been estimated As soon as provided in and Sections 1.1 and 2.
1. The Parties intend that practicable, but no later than 120 days after the Purchase Price shall be finalized as provided in this Section 2.2. The Buyer Closing Date, Parent shall prepare and deliver to the Sellers’ Holder Representative within seventy five (75) days after the Closing Date (i) the balance sheet of the Company as of the Closing Date a statement (the “Proposed Closing Date Balance SheetFinal Purchase Price Statement”) together with any supporting documents as Sellers’ Representative may reasonably request and (ii) that sets forth, in reasonable detail, Parent’s good faith calculations of (aA) (1) the Proposed DebtReference Amount, (b2) the Proposed Change in Net Stockholders’ Equity Amount Working Capital Adjustment, (all collectively referred to herein as 3) the “Proposed Closing Date Financial Statements”Funded Indebtedness, (4) the Closing Date Cash and Cash Equivalents, and (c5) the final amount of Seller Transaction Expenses, and (B) the resulting Purchase Price as proposed by the Buyer (the “Proposed Final Purchase Price”). The Parent shall prepare the Proposed Closing Date Financial Statements shall be prepared by the Acquired Companies Final Purchase Price Statement and components thereof in accordance with GAAP and in a manner consistent with the GAAP accounting principles set forth on Schedule 2.2(a); provided however, that the proposed Closing Date Financial Statements shall not reflect any losses, expenses or reserves attributable to any Wind Holdback Event to the extent the Buyer is entitled to recover such losses, expense or reserves from the Wind Holdback Amount. The Parties shall ensure that the employees of the Acquired Companies responsible for and knowledgeable about the information used intheir defined terms, and the preparation of, the Proposed Closing Date Financial Statements and the calculation of the Proposed Purchase Price are reasonably available to the Sellers’ Representative for consultation after delivery of the Proposed Closing Date Financial Statements and the Proposed Purchase Price calculation. Within ten (10) days after its receipt of the Proposed Closing Date Financial Statements, the Seller’s Representative may request that the Buyer cause the Acquired Companies to provide or provide access to the Sellers’ Representative on a timely basis all books and records and other information reasonably requested by the Seller’s Representative used by the Acquired Companies in calculating the Proposed Closing Date Financial Statements and the Proposed Purchase Price. The Buyer shall cause it to be in substantially the Acquired Companies to comply with such request within ten same form as the Estimated Closing Statement.
(10ii) days after If the Seller’s Representative’s request. The Proposed Purchase Price shall be deemed final and binding upon the Sellers and the Buyer for all purposes of this Agreement, except to the extent that the Sellers’ Holder Representative delivers does not deliver a written objection notice to the Buyer (the “Seller’s Objection Notice”) within seventy-five (75) days after the date the Sellers’ Representative receives the Proposed Closing Date Financial Statements. Seller’s Objection Notice shall set of dispute setting forth an explanation of each item to which the Sellers’ Representative takes exception, specifies in reasonable detail the nature items and extent of each exception and provides the Sellers’ Representative’s calculation of the final amounts in dispute (a “Purchase Price as proposed by Dispute Notice”) to Parent within 45 days after receiving the Sellers’ RepresentativeProposed Final Purchase Price Statement, the Parties agree that the Proposed Final Purchase Price Statement shall become final, binding and conclusive upon the Parties. If the Buyer disputes Holder Representative delivers a Purchase Price Dispute Notice to Parent (the Sellers’ Representative’s exceptionsitems and amounts in dispute, then the Buyer “Disputed Purchase Price Items”) within such 45-day period, the Holder Representative and the Sellers’ Representative will Parent shall negotiate in good faith to resolve such dispute and (i) the Sellers’ Representative shall make its employees and advisors responsible for and knowledgeable about Disputed Purchase Price Items during the information used in, and the preparation of, the Seller’s Objection Notice reasonably available thereafter to the Buyer and (ii) Sellers’ Representative shall provide or provide access to the Buyer 30-day period commencing on a timely basis all books and records and other information reasonably requested by the by the Buyer used in calculating the Seller’s Objection Notice.
(b) If, after thirty (30) days following the date on which Parent receives such Purchase Price Dispute Notice. Any items and amounts set forth in the Buyer receives the Seller Objection Notice, the proposed changes still remain disputed, then the Buyer and the Sellers’ Representative will engage the Auditor to determine the Proposed Final Purchase Price Statement but not set forth in the Purchase Price Dispute Notice as in dispute will be deemed final, binding and conclusive upon the Final Closing Date Balance SheetParties. If requested by Holder Representative and Parent reach agreement with respect to any Disputed Purchase Price Items within such 30-day period, Parent shall promptly revise the AuditorProposed Final Purchase Price Statement to reflect such agreement, which shall be final, binding and conclusive upon the Parties. If the Holder Representative and Parent do not obtain a final written resolution of all Disputed Purchase Price Items within such 30-day period, then, at the election of either the Holder Representative or Parent, the Sellers’ Representative and the Buyer agree to execute an engagement letter that is acceptable to the parties acting together in good faith. All fees and expenses relating to the services to be performed by the Auditor unresolved Disputed Purchase Price Items (the “Auditor’s FeesUnresolved Purchase Price Items”) shall be borne by submitted immediately to the Sellers’ Representative and dispute resolution group of ▇▇▇▇ ▇▇▇▇▇▇ LLP or, if such firm is unable or unwilling to act, such other nationally recognized, mutually agreeable independent public accounting firm capable of serving as an accounting expert with relevant experience in resolving such disputes (the Buyer in “Accounting Firm”). The Accounting Firm shall be required to render a determination regarding the same proportion as the Auditor’s resolution Unresolved Purchase Price Items within 45 days after referral of the aggregate dollar amount matter to the Accounting Firm, or as soon as practicable thereafter, which determination must be in accordance with the terms of this Agreement and in writing and must set forth, in reasonable detail, the basis therefor. The determination of the Final Purchase Price such that Accounting Firm shall be conclusive and binding upon the party with whom the Auditor more closely agrees pays a lesser portion of the Auditor’s Fees Holder Representative, Parent and the other Parties, and judgment may be entered upon the determination of the Accounting Firm in any court having jurisdiction over the party pays against which such determination is to be enforced. In a greater portion. For example, should potential dispute resolution procedure referred to the items in dispute total in amount Accounting Firm pursuant to One Thousand Dollars ($1,000this Section 2.6(d), all prior discussions related thereto shall, unless otherwise agreed to by Parent and the Auditor awards Six Hundred Dollars ($600) in favor Holder Representative, be governed by Rule 408 of the Sellers’ RepresentativeFederal Rules of Evidence and neither party may discuss, use or rely on the other party’s position, sixty percent conduct or statements during such dispute resolution or in any communication with the Accounting Firm.
(60%iii) of the Auditor’s Fees would be borne by the Buyer, and forty percent (40%) of the Auditor’s Fees would be borne by the Sellers’ Representative. The Auditor Accounting Firm shall act as an arbitrator by written submission to determine the Final Purchase Price. The Auditor’s determination shall be based solely on the provisions of this Agreement and the presentations by the Sellers’ Representative and the Buyer (or their designated representatives) expert and not by independent review. If either the Buyer or the Sellers’ Representative furnishes as an arbitrator, shall make a written submission or other material determination only with respect to the Auditor, such Party will simultaneously furnish a copy to the other Party. In connection with the matters contemplated by this Section 2.2(b), the both parties shall provide to the Auditor and the other party on a timely basis all books, records and other information necessary to a determination of the Final Unresolved Purchase Price Items and the Final Closing Date Balance Sheet. The Auditor’s determination of the Final Purchase Price shall (i) not be less than the amount proposed by the Buyer and not more than the amount proposed by the Sellers’ Representative, (ii) be set forth in a written report consisting of a reasoned analysis and concluding in an award delivered to the Sellers’ Representative and the Buyer, (iii) direct the payment of funds in a manner consistent with such determination and (iv) allocate the Auditor’s Fees between the Sellers’ Representative and the Buyer in a manner consistent with this Section 2.2(b)2.6, the Accounting Principles and the definitions set forth in this Agreement; provided that in resolving any Unresolved Purchase Price Item, the Accounting Firm may not assign a value to any particular item greater than the greatest value for such item or less than the smallest value for such item, in each case claimed by Parent or the Holder Representative in the Proposed Final Purchase Price Statement or the Purchase Price Dispute Notice, as applicable. Each party shall use its reasonable best efforts to furnish to the Accounting Firm such work papers and other documents and information pertaining to the Unresolved Purchase Price Items as the Accounting Firm may request. In making its determination, the Accounting Firm may rely only upon the documents and information submitted to it by Parent or the Holder Representative. The Auditorscope of the disputes to be determined by the Accounting Firm shall be limited to the Unresolved Purchase Price Items; and the Accounting Firm shall not make any other determination, including (i) any resolution to any disputed matter of Law or fact, except to correct plain error, or (ii) whether the agreed upon dollar amount of the Reference Amount is correct or appropriate.
(iv) If the Accounting Firm is engaged pursuant to this Section 2.6(d), then the Proposed Final Purchase Price Statement shall automatically be deemed to be revised to reflect the determination of the Accounting Firm pursuant to this Section 2.6(d).The Proposed Final Purchase Price Statement and the Proposed Final Purchase Price shall be revised as appropriate to reflect the resolution of any objections thereto pursuant to this Section 2.6(d) and, as so revised, such Proposed Final Purchase Price Statement and the Proposed Final Purchase Price shall be deemed to set forth the final Purchase Price (the “Final Purchase Price”) for all purposes hereunder.
(v) The terms of appointment and engagement of the Accounting Firm shall be as agreed upon between the Holder Representative and Parent, and any associated engagement fees shall be initially borne 50% by the Holder Representative, on behalf of the Stockholders and at their expense, including from the Holder Representative Funds, and 50% by Parent; provided, however, that the fees and expenses of the Accounting Firm shall ultimately be borne in the same proportion as the aggregate dollar amount of the Unresolved Purchase Price Items that are unsuccessfully disputed by each party (as finally determined by the Accounting Firm) bears to the aggregate dollar amount of all of the Unresolved Purchase Price Items submitted to the Accounting Firm. For example, should the Unresolved Purchase Price Items total $1,000 and the Accounting Firm awards $600 in favor of the Holder Representative’s position, 60% of the costs of its review would be borne by ▇▇▇▇▇▇ and 40% of the costs would be borne by the Holder Representative. Except as otherwise set forth in this Section 2.6(d), the fees and expenses of the Holder Representative and its representatives incurred in connection with the Accounting Firm’s determination with respect to the Unresolved Purchase Price Items shall be borne by the Holder Representative, and the fees and expenses of Parent and its representatives incurred in connection with the Accounting Firm’s determination with respect to the Unresolved Purchase Price Items shall be borne by Parent.
(vi) Until the Final Purchase Price is determined, each of Parent and the Surviving Corporation, on the one hand, shall, and shall cause its respective Subsidiaries to, and the Holder Representative, on the other hand, shall, provide to each other such data and information (including working papers, books and records, all in electronic form) and reasonable access to employees or other appropriate personnel and outside advisors as the other Party may reasonably request in connection with preparation and review of the Proposed Final Purchase Price (and each Party and its accountants and other representatives shall be permitted to make copies as they see reasonably necessary) at reasonable times during the preparation and review of, and the resolution of any objections with respect to, the Proposed Final Purchase Price Statement. This Section 2.6(d) shall be the sole and exclusive remedy of the Parties with respect to the determination of the Final Purchase Price and the Final Closing Date Balance Sheet shall to the fullest extent permitted by applicable Laws be deemed final and binding upon the Sellers and the Buyer for all purposes of this AgreementPrice.
Appears in 1 contract
Determination of the Final Purchase Price. 2.5.1 Within thirty (a30) The Purchase Price has been estimated as provided in and Sections 1.1 and 2.
1. The Parties intend that days after the Purchase Price shall be finalized as provided in this Section 2.2. The Buyer Closing Date, Purchaser shall prepare and deliver to the Sellers’ Representative within seventy five (75) days after the Closing Date (i) the balance sheet Seller a statement setting forth Purchaser’s good faith calculation of the Company actual Net Cash as of the Measurement Date, and the Post-Closing Date Adjustment (the “Proposed Closing Date Balance Sheet”) together with any supporting documents as Sellers’ Representative may reasonably request and (ii) calculations of (a) the Proposed Debt, (b) the Proposed Change in Net Stockholders’ Equity Amount (all collectively referred to herein as the “Proposed Closing Date Financial Statements”) and (c) the final Purchase Price as proposed by the Buyer (the “Proposed Purchase PriceCash Statement”). The Proposed Closing Date Financial Statements Net Cash Statement shall be prepared by using the Acquired Companies Accounting Principles, and the Net Cash shall be calculated in accordance with GAAP the principles set forth in Schedule 2.4.
2.5.2 After receipt of the Closing Net Cash Statement, Seller shall have fifteen (15) days (the “Review Period”) to review the Closing Net Cash Statement. During the Review Period, Seller and its accountants shall have reasonable access to the Group and to such historical financial information (to the extent in Purchaser’s or the Group’s possession) relating to the Closing Net Cash Statement as Seller may reasonably request for the purpose of reviewing the Closing Net Cash Statement and to prepare a Statement of Objections, provided, that such access shall be in a manner consistent that does not significantly interfere with the GAAP accounting principles set forth on Schedule 2.2(a); provided however, that the proposed Closing Date Financial Statements shall not reflect normal business operations of Purchaser or any losses, expenses Group Company.
2.5.3 On or reserves attributable to any Wind Holdback Event prior to the extent the Buyer is entitled to recover such losses, expense or reserves from the Wind Holdback Amount. The Parties shall ensure that the employees last day of the Acquired Companies responsible for and knowledgeable about Review Period, Seller may object to the information used inClosing Net Cash Statement by delivering to Purchaser a written statement setting forth Seller’s objections in reasonable detail, indicating each disputed item or amount and the preparation ofbasis for Seller’s disagreement therewith (the “Statement of Objections”). If Seller fails to deliver the Statement of Objections on or prior to the last day of the Review Period, the Proposed Closing Date Financial Statements Net Cash and the calculation of Post-Closing Adjustment, as the Proposed Purchase Price are reasonably available to case may be, reflected in the Sellers’ Representative for consultation after delivery of the Proposed Closing Date Financial Statements and the Proposed Purchase Price calculation. Within ten (10) days after its receipt of the Proposed Closing Date Financial Statements, the Seller’s Representative may request that the Buyer cause the Acquired Companies to provide or provide access to the Sellers’ Representative on a timely basis all books and records and other information reasonably requested by the Seller’s Representative used by the Acquired Companies in calculating the Proposed Closing Date Financial Statements and the Proposed Purchase Price. The Buyer shall cause the Acquired Companies to comply with such request within ten (10) days after the Seller’s Representative’s request. The Proposed Purchase Price Net Cash Statement shall be deemed to have been accepted by Seller and shall be final and binding upon on the Sellers and Parties. If Seller delivers the Buyer for all purposes Statement of this Agreement, except Objections on or prior to the extent that the Sellers’ Representative delivers a written objection notice to the Buyer (the “Seller’s Objection Notice”) within seventy-five (75) days after the date the Sellers’ Representative receives the Proposed Closing Date Financial Statements. Seller’s Objection Notice shall set forth an explanation of each item to which the Sellers’ Representative takes exception, specifies in reasonable detail the nature and extent of each exception and provides the Sellers’ Representative’s calculation last day of the final Purchase Price as proposed by Review Period, the Sellers’ Representative. If the Buyer disputes the Sellers’ Representative’s exceptions, then the Buyer and the Sellers’ Representative will Parties shall negotiate in good faith to resolve such objections within fifteen (15) days after the delivery of the Statement of Objections (the “Net Cash Resolution Period”), and, if the same are so resolved within the Net Cash Resolution Period, the Net Cash and the Post-Closing Adjustment reflected in the Closing Net Cash Statement with such changes as may have been agreed in writing by Purchaser and Seller, shall be final and binding on the Parties.
2.5.4 If Seller and Purchaser fail to reach an agreement with respect to all of the matters set forth in the Statement of Objections before the expiration of the Net Cash Resolution Period, then any amounts remaining in dispute (“Disputed Amounts”) shall be submitted for resolution to PwC or, if PwC is unable to serve, Purchaser and Seller shall appoint by mutual agreement an impartial nationally recognized firm of independent certified public accountants other than ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ or ▇▇▇▇▇ & ▇▇▇▇▇ (ithe “Independent Accountants”) who, acting as experts, shall resolve the SellersDisputed Amounts only and make any adjustments to the Net Cash and the Post-Closing Adjustment, as the case may be, as reflected on the Closing Net Cash Statement, which adjustments shall be final and binding on Purchaser and Seller. The Independent Accountants shall only decide the Disputed Amounts and their decision for each Disputed Amount must be within the range of values assigned to each such item in the Closing Net Cash Statement and the Statement of Objections, respectively.
2.5.5 Seller shall pay a portion of the fees and expenses of the Independent Accountants equal to such fees and expenses multiplied by a fraction, the numerator of which is the amount of Disputed Amounts submitted to the Independent Accountants that are resolved in favor of Purchaser (that being the difference between the Independent Accountants’ Representative determination and Seller’s determination) and the denominator of which is the total amount of Disputed Amounts submitted to the Independent Accountants (that being the sum total by which Purchaser’s determination and Seller’s determination differ from the determination of the Independent Accountants). Purchaser shall pay that portion of the fees and expenses of the Independent Accountants that Seller is not required to pay hereunder.
2.5.6 The Independent Accountants shall make its employees and advisors responsible for and knowledgeable about the information used ina determination as soon as practicable, and the preparation of, the Seller’s Objection Notice reasonably available thereafter to the Buyer and (ii) Sellers’ Representative shall provide or provide access to the Buyer on a timely basis all books and records and other information reasonably requested by the by the Buyer used in calculating the Seller’s Objection Notice.
(b) If, after no event later than thirty (30) days following the date on which the Buyer receives the Seller Objection Notice, the proposed changes still remain disputed, then the Buyer and the Sellers’ Representative will engage the Auditor to determine the Final Purchase Price and the Final Closing Date Balance Sheet. If requested by the Auditor, the Sellers’ Representative and the Buyer agree to execute an engagement letter that is acceptable to the parties acting together in good faith. All fees and expenses relating to the services to be performed by the Auditor (the “Auditor’s Fees”) shall be borne by the Sellers’ Representative and the Buyer in the same proportion or such other time as the Auditor’s Parties shall agree in writing) after their engagement, and their resolution of the aggregate dollar amount of the Final Purchase Price such that the party with whom the Auditor more closely agrees pays a lesser portion of the Auditor’s Fees Disputed Amounts and the other party pays a greater portion. For example, should the items in dispute total in amount to One Thousand Dollars ($1,000), and the Auditor awards Six Hundred Dollars ($600) in favor of the Sellers’ Representative’s position, sixty percent (60%) of the Auditor’s Fees would be borne by the Buyer, and forty percent (40%) of the Auditor’s Fees would be borne by the Sellers’ Representative. The Auditor shall act as an arbitrator by written submission to determine the Final Purchase Price. The Auditor’s determination shall be based solely on the provisions of this Agreement and the presentations by the Sellers’ Representative and the Buyer (or their designated representatives) and not by independent review. If either the Buyer or the Sellers’ Representative furnishes a written submission or other material adjustments to the AuditorClosing Net Cash Statement and/or the Post-Closing Adjustment, such Party will simultaneously furnish a copy to the other Party. In connection with the matters contemplated by this Section 2.2(b), the both parties shall provide to the Auditor and the other party on a timely basis all books, records and other information necessary to a determination of the Final Purchase Price and the Final Closing Date Balance Sheet. The Auditor’s determination of the Final Purchase Price shall (i) not be less than the amount proposed by the Buyer and not more than the amount proposed by the Sellers’ Representative, (ii) be set forth in a written report consisting of a reasoned analysis and concluding each case in an award delivered to the Sellers’ Representative and the Buyer, (iii) direct the payment of funds in a manner consistent with such determination and (iv) allocate the Auditor’s Fees between the Sellers’ Representative and the Buyer in a manner consistent accordance with this Section 2.2(b). The Auditor’s determination of the Final Purchase Price and the Final Closing Date Balance Sheet 2.5, shall to the fullest extent permitted by applicable Laws be deemed final conclusive and binding upon the Sellers and the Buyer for all purposes of this AgreementParties.
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