Final Adjustment Amount. (i) Within forty-five (45) days after the Closing Date, Buyer shall prepare and deliver to ADC a statement of the Closing Date Working Capital of the Billing Software Business (the “Final Working Capital Statement”), including a statement setting forth Buyer’s good faith determination of the actual adjustment to the Purchase Price (the “Final Adjustment Amount”), based on the values of the current assets and current liabilities of the Billing Software Business set forth in the Final Working Capital Statement. The Final Working Capital Statement will be prepared in accordance with the Accounting Policies on the same basis and using the same methodology, assumptions and adjustments utilized to prepare the Working Capital Statement, except that the Deferred Revenue Adjustment shall be equal to the amount of the Deferred Revenue Adjustment set forth on the Estimated Working Capital Statement, plus, to the extent any deferred revenue items reflected in the Estimated Deferred Revenue Statement are increased in the Final Working Capital Statement, an amount equal to (i) the increased amount of deferred revenue attributed to items reflected in the Estimated Deferred Revenue Statement, multiplied by (ii) the quotient obtained by dividing (x) the Deferred Revenue Adjustment on the Estimated Deferred Revenue Statement, by (y) the total deferred revenue reflected on the Estimated Deferred Revenue Statement. To the extent that any deferred revenue items reflected on the Estimated Deferred Revenue Statement are increased in accordance with the previous sentence, if applicable, a corresponding increase to reflect the appropriate Accounts Receivable Adjustment shall be made to Accounts Receivable on the Final Working Capital Statement. Each of Seller (and each of Seller’s Affiliates) and Buyer shall provide the other party with access during normal business hours to any books, records, working papers or other information in its possession after the Closing Date reasonably necessary or useful in the preparation of the Final Working Capital Statement and the calculation of the Final Adjustment Amount. The Final Working Capital Statement shall become final and binding upon all parties hereto on the twenty-first (21st) day following delivery thereof (without counting such day of delivery) to ADC unless ADC gives written notice of a good faith disagreement with the Final Working Capital Statement (a “Notice of Disagreement”) to Buyer prior to such date. Any Notice of Disagreement shall specify in reasonable detail the nature of any disagreement so asserted and relate solely to the review of the Final Working Capital Statement and the calculation of the Final Adjustment Amount. (ii) If a timely Notice of Disagreement is delivered by ADC as required pursuant to Section 2.6(c)(i), then the Final Working Capital Statement shall become final and binding upon all of the parties hereto on the earlier of (x) the date ADC and Buyer resolve in writing any differences they may have with respect to all matters specified in the Notice of Disagreement and (y) the date all disputed matters are finally resolved in writing by an independent public accounting firm (the “Independent Accountants”). During the 15-day period following the delivery of a Notice of Disagreement, ADC and Buyer shall seek in good faith to resolve any differences which they may have with respect to any matter specified in the Notice of Disagreement and each shall provide the other with reasonable access to any books, records, working papers or other information reasonably necessary or useful in the preparation or calculation of (i) the Final Adjustment Amount, (ii) the Final Working Capital Statement, or (iii) the Notice of Disagreement. At the end of such 15-day period, if there has been no resolution of the matters specified in the Notice of Disagreement, ADC and Buyer shall make a written submission of any and all matters arising under this Section 2.6 that remain in dispute to the Independent Accountants for review and resolution. The Independent Accountants shall be KPMG or, if such firm is unable or unwilling to act, such other nationally recognized independent public accounting firm as shall be agreed upon by ADC and Buyer. The Independent Accountants shall (i) not hear any oral testimony regarding the matters in dispute, (ii) except as set forth in Section 2.6(c)(i), not make any adjustments to the Deferred Revenue Adjustment as set forth in the Estimated Working Capital Statement, and their review shall be on the same basis, and using the same assumptions, as utilized to prepare the Working Capital Statement. The Independent Accountants shall render a decision resolving the matters submitted to the Independent Accountants within ten (10) days following submission thereto (or as soon thereafter as reasonably practicable), and such decision shall be final, binding and conclusive on each of Sellers and Buyer. All fees and expenses of the Independent Accountants shall be borne (i) by Buyer if the difference between the amount of the adjustment determined by Buyer and the Independent Accountants’ determination is equal to or greater than fifteen percent (15)% of such adjustment, and (ii) by ADC if such difference is less than fifteen percent (15)% of such adjustment. (iii) If, as a result of any adjustments made pursuant to this Section 2.6, ADC is finally determined to owe any amount to Buyer, ADC shall within three (3) Business Days pay such amount to Buyer, provided, however, that if there is any amount then outstanding pursuant to the Credit Facility, then, at Buyer’s option, such amount owed may first be offset against the amount then outstanding and any excess amount owed shall be paid to Buyer in accordance with this Section. Any such payments shall be made by federal wire transfer of immediately available funds to an account designated in writing by the party receiving payment and be made without interest from the Closing Date. Notwithstanding the above, if, as a result of any adjustments made pursuant to this Section 2.6, Buyer is finally determined to owe any amounts to ADC, such amounts shall, at Buyer’s sole discretion, be set off against the Deemed Value of the remaining services that ADC is otherwise obligated to provide to Buyer pursuant to the Transition Services Agreement (and in no event shall any increase in the Purchase Price exceed the Deemed Value of the remaining services at the time of final resolution pursuant to this Section 2.6(c)) by reducing the term (in whole month increments) in which ADC is otherwise obligated to provide such services to Buyer following the final resolution pursuant to this Section 2.6(c), but which reduction shall be subject to Buyer’s right, in its sole discretion, to re-purchase any portion of such services at the Deemed Value for cash payable within five (5) Business Days of the date in which notice is provided. With respect to the preceding sentence, for the avoidance of doubt, and by way of example, if the amount owed ADC is determined to be $500,000, the term in which ADC is otherwise obligated to provide such services shall be reduced by two months, provided that if Purchaser pays ADC $100,000 in cash to reduce the overall amount owed to ADC to $400,000, then the term in which ADC is otherwise obligated to provide the services shall be reduced by one month.
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Final Adjustment Amount. (ia) Within forty-five No later than ninety (4590) days after the Closing Date, Buyer Parent shall cause the Surviving Corporation to prepare and deliver to ADC the Representative a statement consolidated balance sheet of the Company and its Subsidiaries prepared as of 11:59 p.m. on the last Business Day prior to the Closing Date Working Capital of the Billing Software Business (except as otherwise contemplated by this Agreement) (the “Final Working Capital StatementClosing Balance Sheet”), including a statement setting which shall set forth Buyer’s good faith determination the following: (i) the amount of Cash (“Closing Cash”), (ii) the amount of Debt (“Closing Debt”), (iii) the components of Working Capital to enable Parent and the Representative (on behalf of the actual adjustment Securityholders) to calculate the Purchase Price amount of Working Capital (“Closing Working Capital”) and the amount of Working Capital Surplus or Working Capital Deficiency (“Closing Working Capital Surplus” or “Closing Working Capital Deficiency,” as the case may be), and (iv) the Company Transaction Costs that were not Paid Company Transaction Costs (the “Final Adjustment AmountClosing Company Transaction Costs”)) in each case, based on the values as of the current assets such time and current liabilities of the Billing Software Business set forth in the Final Working Capital Statementdate. The Final Working Capital Statement will Closing Balance Sheet shall be prepared in accordance with the Accounting Policies on the same basis this Agreement and using the same methodology, assumptions and adjustments utilized to prepare the Working Capital Statement, except that the Deferred Revenue Adjustment shall be equal to the amount of the Deferred Revenue Adjustment set forth on the Estimated Working Capital Statement, plus, to the extent any deferred revenue items reflected GAAP in the Estimated Deferred Revenue Statement are increased in the Final Working Capital Statement, an amount equal to (i) the increased amount of deferred revenue attributed to items reflected in the Estimated Deferred Revenue Statement, multiplied by (ii) the quotient obtained by dividing (x) the Deferred Revenue Adjustment on the Estimated Deferred Revenue Statement, by (y) the total deferred revenue reflected on the Estimated Deferred Revenue Statement. To the extent that any deferred revenue items reflected on the Estimated Deferred Revenue Statement are increased in accordance with the previous sentence, if applicable, a corresponding increase to reflect the appropriate Accounts Receivable Adjustment shall be made to Accounts Receivable on the Final Working Capital Statement. Each of Seller (and each of Seller’s Affiliates) and Buyer shall provide the other party with access during normal business hours to any books, records, working papers or other information in its possession after the Closing Date reasonably necessary or useful in the preparation of the Final Working Capital Statement and the calculation of the Final Adjustment Amount. The Final Working Capital Statement shall become final and binding upon all parties hereto on the twenty-first (21st) day following delivery thereof (without counting such day of delivery) to ADC unless ADC gives written notice of a good faith disagreement with the Final Working Capital Statement (a “Notice of Disagreement”) to Buyer prior to such date. Any Notice of Disagreement shall specify in reasonable detail the nature of any disagreement so asserted and relate solely to the review of the Final Working Capital Statement and the calculation of the Final Adjustment Amount.
(ii) If a timely Notice of Disagreement is delivered by ADC as required pursuant to Section 2.6(c)(i), then the Final Working Capital Statement shall become final and binding upon all of the parties hereto on the earlier of (x) the date ADC and Buyer resolve in writing any differences they may have with respect to all matters specified in the Notice of Disagreement and (y) the date all disputed matters are finally resolved in writing by an independent public accounting firm (the “Independent Accountants”). During the 15-day period following the delivery of a Notice of Disagreement, ADC and Buyer shall seek in good faith to resolve any differences which they may have with respect to any matter specified in the Notice of Disagreement and each shall provide the other with reasonable access to any books, records, working papers or other information reasonably necessary or useful in the preparation or calculation of (i) the Final Adjustment Amount, (ii) the Final Working Capital Statement, or (iii) the Notice of Disagreement. At the end of such 15-day period, if there has been no resolution of the matters specified in the Notice of Disagreement, ADC and Buyer shall make a written submission of any and all matters arising under this Section 2.6 that remain in dispute to the Independent Accountants for review and resolution. The Independent Accountants shall be KPMG or, if such firm is unable or unwilling to act, such other nationally recognized independent public accounting firm as shall be agreed upon by ADC and Buyer. The Independent Accountants shall (i) not hear any oral testimony regarding the matters in dispute, (ii) except as set forth in Section 2.6(c)(i), not make any adjustments to the Deferred Revenue Adjustment as set forth in the Estimated Working Capital Statement, and their review shall be on the same basismanner consistent with, and using the same assumptionsprinciples, as utilized to prepare policies, methods and practices used in, the Working Capital preparation of the Financial Statements; provided that in the event of a conflict between GAAP and the preparation of the Financial Statement, GAAP shall prevail. The Independent Accountants shall render a decision resolving Following the matters submitted delivery of the Closing Balance Sheet to the Independent Accountants within ten (10) days following submission thereto (or as soon thereafter as reasonably practicable)Representative, Parent and the Surviving Corporation shall afford the Representative and its representatives the opportunity to examine the Closing Balance Sheet, and such decision shall be finalsupporting schedules, binding analyses and conclusive on each of Sellers other underlying records or documentation as are reasonably necessary and Buyerappropriate. All fees and expenses of the Independent Accountants shall be borne (i) by Buyer if the difference between the amount of the adjustment determined by Buyer Parent and the Independent Accountants’ determination is equal Surviving Corporation shall reasonably cooperate with the Representative and its representatives in such examination, including providing answers to or greater than fifteen percent (15)% of such adjustmentquestions asked by the Representative and its representatives, and (ii) by ADC if such difference is less than fifteen percent (15)% of such adjustment.
(iii) If, as a result of any adjustments made pursuant to this Section 2.6, ADC is finally determined to owe any amount to Buyer, ADC Parent and the Surviving Corporation shall within three (3) Business Days pay such amount to Buyer, provided, however, that if there is any amount then outstanding pursuant promptly make available to the Credit Facility, then, at Buyer’s option, such amount owed may first be offset against the amount then outstanding Representative and its representatives any excess amount owed shall be paid to Buyer in accordance with this Section. Any such payments shall be made by federal wire transfer of immediately available funds to an account designated in writing records that are reasonably requested by the party receiving payment Representative and be made without interest from the Closing Date. Notwithstanding the above, if, as a result of any adjustments made pursuant to this Section 2.6, Buyer is finally determined to owe any amounts to ADC, such amounts shall, at Buyer’s sole discretion, be set off against the Deemed Value of the remaining services that ADC is otherwise obligated to provide to Buyer pursuant to the Transition Services Agreement (and in no event shall any increase in the Purchase Price exceed the Deemed Value of the remaining services at the time of final resolution pursuant to this Section 2.6(c)) by reducing the term (in whole month increments) in which ADC is otherwise obligated to provide such services to Buyer following the final resolution pursuant to this Section 2.6(c), but which reduction shall be subject to Buyer’s right, in its sole discretion, to re-purchase any portion of such services at the Deemed Value for cash payable within five (5) Business Days of the date in which notice is provided. With respect to the preceding sentence, for the avoidance of doubt, and by way of example, if the amount owed ADC is determined to be $500,000, the term in which ADC is otherwise obligated to provide such services shall be reduced by two months, provided that if Purchaser pays ADC $100,000 in cash to reduce the overall amount owed to ADC to $400,000, then the term in which ADC is otherwise obligated to provide the services shall be reduced by one monthrepresentatives.
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Final Adjustment Amount. (ia) Within forty-five As promptly as practicable after the Closing Date (45but in no event later than ninety (90) days after the Closing Date), Buyer Pioneer Investment shall cause the Surviving Entity to prepare and deliver to ADC the Representative a statement consolidated balance sheet of the Company and the Company Subsidiaries prepared as of 11:59 p.m. on the date immediately prior to the Closing Date Working Capital of the Billing Software Business (except as otherwise contemplated by this Agreement) (the “Final Working Capital StatementClosing Balance Sheet”), including a statement setting which shall set forth Buyer’s good faith determination the following: (i) the amount of Cash as of the actual adjustment to the Purchase Price Calculation Time (the “Final Adjustment AmountClosing Cash”), (ii) the amount of Debt as of the Calculation Time (the “Closing Debt”), and (iii) the components of Working Capital to enable Pioneer Investment and the Representative on behalf of the Company Members and the UAR Holders to calculate the amount of Working Capital as of the Calculation Time (the “Closing Working Capital”) and the amount of Working Capital Surplus or Working Capital Deficiency, in each case, as of such time and date (the “Closing Working Capital Surplus” or the “Closing Working Capital Deficiency,” as the case may be). For purposes of calculating the Closing Cash, Canadian dollars shall be converted into U.S. dollars using a currency exchange rate based upon the Bank of Canada closing exchange rate on the values of day immediately prior to the current assets and current liabilities of the Billing Software Business set forth in the Final Working Capital StatementClosing Date. The Final Working Capital Statement will Closing Balance Sheet shall be prepared in accordance with this Agreement and the Accounting Policies on Principles. Following the same basis and using delivery of the same methodology, assumptions and adjustments utilized to prepare the Working Capital Statement, except that the Deferred Revenue Adjustment shall be equal Closing Balance Sheet to the amount Representative, Pioneer Investment and the Surviving Entity shall afford the Representative and its representatives the opportunity to examine the Closing Balance Sheet, and such supporting schedules, analyses, workpapers and other underlying records or documentation as are reasonably requested and necessary and appropriate. Pioneer Investment and the Surviving Entity shall cooperate with the Representative and its representatives in such examination, including providing answers to reasonable questions asked by the Representative and its representatives, and Pioneer Investment and the Surviving Entity shall promptly make available to the Representative and its representatives any copies of records reasonably requested and necessary and appropriate.
(b) If within thirty (30) days following delivery of the Deferred Revenue Adjustment set forth on the Estimated Working Capital Statement, plus, Closing Balance Sheet to the extent any deferred revenue items reflected in the Estimated Deferred Revenue Statement are increased in the Final Working Capital Statement, an amount equal Representative (or such later date as mutually consented to (i) the increased amount of deferred revenue attributed to items reflected in the Estimated Deferred Revenue Statement, multiplied by (ii) the quotient obtained by dividing (x) the Deferred Revenue Adjustment on the Estimated Deferred Revenue Statement, by (y) the total deferred revenue reflected on the Estimated Deferred Revenue Statement. To the extent that any deferred revenue items reflected on the Estimated Deferred Revenue Statement are increased in accordance with the previous sentence, if applicable, a corresponding increase to reflect the appropriate Accounts Receivable Adjustment shall be made to Accounts Receivable on the Final Working Capital Statement. Each of Seller (and each of Seller’s Affiliates) and Buyer shall provide the other party with access during normal business hours to any books, records, working papers or other information in its possession after the Closing Date reasonably necessary or useful in the preparation of the Final Working Capital Statement Pioneer Investment and the calculation of Representative, which consent shall not be unreasonably withheld, conditioned or delayed), the Final Adjustment Amount. The Final Working Capital Statement shall become final and binding upon all parties hereto on the twenty-first (21st) day following delivery thereof (without counting such day of delivery) Representative has not delivered to ADC unless ADC gives Pioneer Investment written notice of its objections to the Closing Balance Sheet (the “Objection Notice”), which Objection Notice must contain a good faith disagreement with the Final Working Capital Statement (a “Notice of Disagreement”) to Buyer prior to such date. Any Notice of Disagreement shall specify statement describing in reasonable detail the nature basis of any disagreement so asserted such objections, then the Closing Balance Sheet, Closing Cash, Closing Debt, Closing Working Capital and relate solely to the review of the Closing Working Capital Surplus or Closing Working Capital Deficiency, as applicable, as set forth in or derived from such Closing Balance Sheet shall be deemed final and conclusive and shall be “Final Balance Sheet,” “Final Cash,” “Final Debt,” “Final Working Capital” and “Final Working Capital Statement and the calculation of the Final Adjustment Amount.
(ii) If a timely Notice of Disagreement is delivered by ADC as required pursuant to Section 2.6(c)(i), then the Surplus” or “Final Working Capital Statement Deficiency,” respectively and as applicable. If the Representative delivers the 28 Objection Notice within such thirty day (30) period, then Pioneer Investment and the Representative shall become final and binding upon all of the parties hereto on the earlier of (x) the date ADC and Buyer resolve in writing any differences they may have with respect to all matters specified in the Notice of Disagreement and (y) the date all disputed matters are finally resolved in writing by an independent public accounting firm (the “Independent Accountants”). During the 15-day period following the delivery of a Notice of Disagreement, ADC and Buyer shall seek endeavor in good faith to resolve the objections, for a period not to exceed fifteen (15) days from the date of delivery of the Objection Notice. The Representative shall afford Pioneer Investment and the Surviving Entity and their representatives the opportunity to examine any differences which they may have Objection Notice, and such supporting schedules, analyses, workpapers, and other underlying records or documentation as are reasonably requested and necessary and appropriate. The Representative shall cooperate with respect Pioneer Investment, the Surviving Entity and their representatives in such examination, including providing answers to questions asked by Pioneer Investment, the Surviving Entity and their representatives and promptly making available to Pioneer Investment, the Surviving Entity and their representatives any matter specified in the Notice copies of Disagreement records reasonably requested and each shall provide the other with reasonable access to any books, records, working papers or other information reasonably necessary or useful in the preparation or calculation of (i) the Final Adjustment Amount, (ii) the Final Working Capital Statement, or (iii) the Notice of Disagreementand appropriate. At If at the end of such the fifteen day (15-day period, if ) period there has been no resolution of the matters specified in the Notice of Disagreement, ADC and Buyer shall make a written submission of are any and all matters arising under this Section 2.6 objections that remain in dispute, then the remaining objections in dispute to the Independent Accountants for review and resolution. The Independent Accountants shall be KPMG or, if such firm is unable or unwilling submitted for resolution to act, such other a nationally recognized independent public accounting firm as shall to be agreed upon by ADC and Buyer. The Independent Accountants shall (i) not hear any oral testimony regarding the matters in dispute, (ii) except as set forth in Section 2.6(c)(i), not make any adjustments to the Deferred Revenue Adjustment as set forth in the Estimated Working Capital Statement, and their review shall be on the same basis, and using the same assumptions, as utilized to prepare the Working Capital Statement. The Independent Accountants shall render a decision resolving the matters submitted to the Independent Accountants within ten (10) days following submission thereto (or as soon thereafter as reasonably practicable), and such decision shall be final, binding and conclusive on each of Sellers and Buyer. All fees and expenses of the Independent Accountants shall be borne (i) by Buyer if the difference between the amount of the adjustment determined by Buyer and the Independent Accountants’ determination is equal to or greater than fifteen percent (15)% of such adjustment, and (ii) by ADC if such difference is less than fifteen percent (15)% of such adjustment.
(iii) If, as a result of any adjustments made pursuant to this Section 2.6, ADC is finally determined to owe any amount to Buyer, ADC shall within three (3) Business Days pay such amount to Buyer, provided, however, that if there is any amount then outstanding pursuant to the Credit Facility, then, at Buyer’s option, such amount owed may first be offset against the amount then outstanding and any excess amount owed shall be paid to Buyer in accordance with this Section. Any such payments shall be made by federal wire transfer of immediately available funds to an account designated in writing selected jointly by the party receiving payment Representative and be made without interest from Pioneer Investment within the Closing Date. Notwithstanding the above, if, as a result of any adjustments made pursuant to this Section 2.6, Buyer is finally determined to owe any amounts to ADC, such amounts shall, at Buyer’s sole discretion, be set off against the Deemed Value of the remaining services that ADC is otherwise obligated to provide to Buyer pursuant to the Transition Services Agreement (and in no event shall any increase in the Purchase Price exceed the Deemed Value of the remaining services at the time of final resolution pursuant to this Section 2.6(c)) by reducing the term (in whole month increments) in which ADC is otherwise obligated to provide such services to Buyer following the final resolution pursuant to this Section 2.6(c), but which reduction shall be subject to Buyer’s right, in its sole discretion, to re-purchase any portion of such services at the Deemed Value for cash payable within five (5) Business Days (such jointly selected accounting firm the “Referee”). The Referee shall be jointly instructed by the Parties to determine any unresolved items of the date Final Balance Sheet, Final Cash, Final Debt, Final Working Capital and Final Working Capital Surplus or Final Working Capital Deficiency within thirty (30) days after the objections that remain in which notice is provideddispute are submitted to it. With respect If any objections are submitted to the preceding sentenceReferee for resolution, (i) each Party shall furnish to the Referee such workpapers and other documents and information relating to such objections as the Referee may request and are available to that Party or its subsidiaries (or its independent public accountants) and will be afforded the opportunity to present to the Referee any material relating to the determination of the matters in dispute and to discuss such determination with the Referee; (ii) to the extent that a value has been assigned to any objection that remains in dispute, the Referee shall not assign a value to such objection that is greater than the greatest value for such objection claimed by any Party or less than the avoidance smallest value for such objection claimed by any Party; (iii) the determination by the Referee of doubtClosing Cash, Closing Debt, Closing Working Capital and Closing Working Capital Surplus or Closing Working Capital Deficiency, as set forth in a written notice delivered to both Parties and the Escrow Agent by way the Referee, shall be made in accordance with this Agreement and shall be binding and conclusive on the Parties, absent fraud or manifest error and (iv) the costs and expenses of the Referee will be borne by the Parties in such proportion as is appropriate to reflect the relative benefits received by the Pioneer Parties and the Representative on behalf of the Company Members and the UAR Holders from the resolution of the dispute. For example, if the Representative challenges the calculation of the Closing Working Capital by an amount owed ADC is determined to be of $500,000100,000, but the term in which ADC is otherwise obligated to provide Referee determines that the Representative on behalf of the Company Members and the UAR Holders has a valid claim for only $40,000, Pioneer Investment shall bear 40% of the fees and expenses of the Referee and the Representative on behalf of the Company Members and the UAR Holders shall bear the other 60% of such services shall be reduced by two months, provided that if Purchaser pays ADC $100,000 in cash to reduce the overall amount owed to ADC to $400,000, then the term in which ADC is otherwise obligated to provide the services shall be reduced by one monthfees and expenses.
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