Post-Closing Adjustment of Purchase Price. (a) As promptly as practicable, but in no event later than sixty (60) days following the Closing Date, Buyer shall deliver to Seller a statement setting forth Buyer’s calculation of (i) the Closing Cash, (ii) the Closing Indebtedness, (iii) the Closing Transaction Expenses, (iv) the Net Working Capital Adjustment, and (v) the Purchase Price resulting therefrom (collectively, the “Proposed Closing Statement”). The Proposed Closing Statement will be prepared in accordance with the Accounting Rules. (b) Seller shall have a period of thirty (30) days after receipt of the Proposed Closing Statement to review it (the “Review Period”) and to notify Buyer of any disputes regarding the Proposed Closing Statement or the calculation of Closing Cash, Closing Indebtedness, Closing Transaction Expenses or Closing Net Working Capital. During the Review Period, Seller, ▇▇▇▇▇▇’s accountants, and ▇▇▇▇▇▇’s counsel shall have access to the Group’s books and, work papers and to the persons who prepared the Proposed Closing Statement, in accordance with customary protocols regarding such access. (c) If Seller approves in writing of ▇▇▇▇▇'s determination of the Closing Cash, Closing Indebtedness, Transaction Expenses and Closing Net Working Capital as set forth on the Proposed Closing Statement, or if Seller fails to deliver an Objection Notice, as provided below, then ▇▇▇▇▇'s determinations as indicated in the Proposed Closing Statement will become binding on all Parties to this Agreement. (d) If Seller disagrees with the computation of the Closing Cash, the Closing Indebtedness, Transaction Expenses or Closing Net Working Capital as reflected on the Proposed Closing Statement, Seller shall deliver a written notice ("Objection Notice") to Buyer, within the Review Period, setting forth Seller’s calculation of such items and the basis, with reasonable specificity, for the differences identified by Seller. ▇▇▇▇▇ and ▇▇▇▇▇▇ will negotiate in good faith in an effort to resolve those disputes. If the Parties are unable to resolve any dispute within thirty (30) days after Seller delivers the Objection Notice, then Buyer and Seller will jointly retain a nationally recognized independent certified public accounting firm that is mutually acceptable to Buyer and Seller (the “Independent Accounting Firm”), acting as arbitrators and experts and not as auditors, to resolve the amounts still in dispute (the “Disputed Amounts”). The Parties shall make readily available to the Independent Accounting Firm all relevant books and records relating to the Proposed Closing Statement, and all other items reasonably requested by the Independent Accounting Firm. (e) The Independent Accounting Firm shall not be entitled to consider any items or matters other than the Disputed Amounts and make any adjustments to the Proposed Closing Statement in connection therewith. The Parties agree that the Independent Accounting Firm’s decision regarding each Disputed Amount must be within the range of values assigned to such Stock Purchase Agreement – Averna/▇▇▇▇▇▇▇ Electronics 15 item in the Proposed Closing Statement and the Objection Notice, respectively. The Independent Accounting Firm shall make its determination based solely on presentations and information provided by Buyer or Seller and not by independent review. The Independent Accounting Firm’s determination as to the resolution of the Disputed Amounts shall be in writing and the Parties shall direct the Independent Auditor to furnish such determination to Seller and Buyer as promptly as practicable after the Disputed Amounts have been referred to the Independent Accounting Firm (and in any event within thirty (30) days thereafter, unless the Parties shall agree in writing otherwise). ▇▇▇▇▇ and ▇▇▇▇▇▇ each agrees that absent bad faith, Fraud, or manifest error on the part of the Independent Accounting Firm, they shall be bound by the determination of the Disputed Amounts and Final Purchase Price arising therefrom by the Independent Accounting Firm. (f) The fees, costs and expenses of the Independent Accounting Firm shall be allocated between Seller and ▇▇▇▇▇ as determined (and as set forth in the final determination) by the Independent Accounting Firm based upon the relative success (in terms of percentages) of each of Buyer’s claim, on the one hand, and Seller’s claim, on the other hand. For example, if the final determination reflects a sixty-forty (60-40) compromise of the Parties’ claims, the Independent Accounting Firm would allocate expenses forty percent (40%) to the Party (i.e. either Buyer, on the one hand, or Seller, on the other hand) whose claims were determined to be sixty percent (60%) successful and sixty percent (60%) to the Party (i.e. either Buyer, on the one hand, or Seller, on the other hand) whose claims were determined to be forty percent (40%) successful. (g) If the Final Purchase Price is less than the Estimated Purchase Price (such difference, represented by a negative number, being the “Overpayment”), then Seller shall pay to Buyer an amount equal to the Overpayment in immediately available funds to an account designated by Buyer. (h) If the Final Purchase Price exceeds the Estimated Purchase Price (such difference represented by a positive number, being the “Underpayment”), then Buyer shall pay to Seller an amount equal to the Underpayment in immediately available funds to an account designated by Seller. (i) The failure of Buyer to assert any matter that could have been asserted in the Proposed Closing Statement and that ▇▇▇▇▇ was aware or had knowledge of at shall constitute a waiver of Buyer of any right of Buyer to assert any such matter at any subsequent date as a breach of a representation and warranty against the Seller. For the avoidance of doubt, the Parties agree that the preceding sentence shall not in any way limit Buyer’s right under the RWI Policy.
Appears in 1 contract
Sources: Stock Purchase Agreement (Kimball Electronics, Inc.)
Post-Closing Adjustment of Purchase Price. (a) As promptly soon as practicablereasonably practical after the Closing, but in no event later than sixty ninety (6090) days following after the Closing Date, Buyer the Purchaser shall prepare and deliver to the Seller a statement prepared in good faith and in accordance with the Accounting Principles, applied in a manner consistent with the preparation of the Reference Statement of Working Capital, together with reasonably detailed supporting information and calculations (the “Initial Closing Statement”), setting forth Buyerthe Purchaser’s calculation determination of (i) the Closing CashIndebtedness Amount, (ii) the Closing IndebtednessCash Amount, (iii) the Closing Transaction ExpensesDate Working Capital Amount and either the resulting Closing Date Working Capital Excess or Closing Date Working Capital Shortfall, as the case may be, (iv) the Net Working Capital Adjustment, Transaction Expenses and (v) the Purchase Price resulting therefrom amount of the closing date payment (collectively, the “Proposed Closing StatementDate Payment Amount”). The Proposed Closing Statement will be prepared ) calculated in accordance with the Accounting RulesSection 2.02(a).
(b) Seller shall have a period The purpose of thirty determining the Closing Indebtedness Amount, Closing Cash Amount and the Closing Date Working Capital Amount, the Transaction Expenses and the related purchase price adjustment contemplated by this Section 2.06 is to (30i) days after receipt measure the Indebtedness, Transaction Expenses and Cash as of the Proposed Measurement Time and (ii) measure differences in the Closing Statement Date Working Capital Amount against the Working Capital Target Upper Collar and the Working Capital Target Lower Collar, and such processes are not intended to review it (permit the “Review Period”) introduction of judgments, accounting methods, policies, principles, practices, procedures, classifications or estimation methodologies for the purpose of determining Indebtedness, Transaction Expenses, Cash or Closing Date Working Capital Amount that are different from those contemplated by the definitions of each such term and the Accounting Principles. No fact, circumstance or event, including any market or business development, occurring after the Closing, and no change in GAAP or applicable Law after the Closing Date, shall be taken into account in the calculations to notify Buyer be made pursuant to this Section 2.06, including the preparation of any disputes regarding the Proposed Initial Closing Statement or determination of the calculation of Closing Cash, Closing Indebtedness, Closing Transaction Expenses or Closing Net Working Capital. During the Review Period, Seller, ▇▇▇▇▇▇’s accountants, and ▇▇▇▇▇▇’s counsel shall have access to the Group’s books and, work papers and to the persons who prepared the Proposed Final Closing Statement, in accordance with customary protocols regarding such access.
(c) If Seller approves in writing of ▇▇▇▇▇'s Throughout the period following the Closing Date until the determination of the Closing Cash, Closing Indebtedness, Transaction Expenses and Closing Net Working Capital as set forth on the Proposed Final Closing Statement, the Purchaser and the Acquired Companies shall permit the Seller and its Representatives reasonable access (with the right to make copies), during normal business hours upon reasonable advance notice, to the relevant financial books and records of the Purchaser and the Acquired Companies solely for the purposes of the review and objection right contemplated in this Section 2.06, together with reasonable access to members of its accounting and financial staff in connection with the preparation of the Initial Closing Statement in order to respond to the inquiries of the Seller and its Representatives related thereto (it being understood that any such access and the activities related thereto shall be at the Seller’s sole cost and expense and the Purchaser shall have the right to schedule such access by the Seller at a time that the Purchaser determines in its reasonable discretion is least disruptive to the operation of the Purchaser’s business; provided that if the Purchaser delays or if Seller fails to deliver an Objection Notice, as provided belowdefers any such access for a period of ten (10) days or more, then ▇▇▇▇▇'s determinations as indicated in the Proposed Closing Statement will become binding on all Parties Objection Deadline Date shall be extended by an amount of time equal to this Agreementany such delay).
(d) The Seller shall deliver to the Purchaser by the Objection Deadline Date either a notice indicating that the Seller accepts the Initial Closing Statement (the “Notice of Acceptance”) or a statement describing in reasonable detail each of their objections to the Initial Closing Statement (the “Notice of Disagreement”). If the Seller disagrees with timely delivers a Notice of Disagreement, only those matters specified in such Notice of Disagreement shall be deemed to be in dispute (such matters, the computation “Disputed Items”). Any component of the calculations set forth in the Initial Closing CashStatement that is not the subject of a timely delivered Notice of Disagreement by the Seller shall be final and binding upon the Seller and the Purchaser, unless the Closing Indebtedness, Transaction Expenses or Closing Net Working Capital as reflected on resolution of any Disputed Item affects an undisputed component of the Proposed Initial Closing Statement, Seller shall deliver in which case such undisputed component shall, notwithstanding the failure to object to such component in the Notice of Disagreement, be considered a written notice ("Objection Notice") to Buyer, within the Review Period, setting forth Seller’s calculation of such items and the basis, with reasonable specificity, for the differences identified by Seller. ▇▇▇▇▇ and ▇▇▇▇▇▇ will negotiate in good faith in an effort to resolve those disputes. If the Parties are unable to resolve any dispute within thirty (30) days after Seller delivers the Objection Notice, then Buyer and Seller will jointly retain a nationally recognized independent certified public accounting firm that is mutually acceptable to Buyer and Seller (the “Independent Accounting Firm”), acting as arbitrators and experts and not as auditors, to resolve the amounts still in dispute (the “Disputed Amounts”). The Parties shall make readily available Item” to the Independent Accounting Firm all relevant books and records relating to the Proposed Closing Statement, and all other items reasonably requested extent affected by the Independent Accounting Firmsuch resolved Disputed Item.
(e) The Independent Accounting Firm Disputed Items shall not be entitled resolved as follows:
(i) The Seller and the Purchaser shall first use their commercially reasonable efforts to consider resolve such Disputed Items and any items or matters other than written resolution by the Disputed Amounts Seller and make any adjustments to the Proposed Closing Statement in connection therewith. The Parties agree that the Independent Accounting Firm’s decision regarding each Disputed Amount must be within the range of values assigned Purchaser as to such Stock Purchase Agreement – Averna/▇▇▇▇▇▇▇ Electronics 15 item in Disputed Items shall be final and binding upon the Proposed Closing Statement Parties.
(ii) If the Seller and the Objection Notice, respectively. The Independent Accounting Firm shall make its determination based solely on presentations and information provided by Buyer or Seller and Purchaser do not by independent review. The Independent Accounting Firm’s determination as to the reach a resolution of the all Disputed Amounts shall be in writing and the Parties shall direct the Independent Auditor to furnish such determination to Seller and Buyer as promptly as practicable after the Disputed Amounts have been referred to the Independent Accounting Firm (and in any event Items within thirty (30) days thereafter, unless the Parties shall agree in writing otherwise). ▇▇▇▇▇ and ▇▇▇▇▇▇ each agrees that absent bad faith, Fraud, or manifest error on the part Business Days after delivery of the Independent Accounting FirmNotice of Disagreement, they shall be bound by the determination of the Disputed Amounts and Final Purchase Price arising therefrom by the Independent Accounting Firm.
(f) The fees, costs and expenses of the Independent Accounting Firm shall be allocated between Seller and ▇▇▇▇▇ as determined the Purchaser shall, within fifteen (15) Business Days following the expiration of such thirty (30)-Business Day period, engage the Neutral Accountant to resolve any remaining Disputed Items. If one or more Disputed Items are submitted to the Neutral Accountant for resolution, the Seller and as set forth the Purchaser shall, within such fifteen (15)-Business Day period, enter into a customary engagement letter, and to the extent necessary, each Party shall waive and cause its Affiliates to waive any then-existing conflicts with the Neutral Accountant and shall cooperate with the Neutral Accountant in connection with its determination pursuant to this Section 2.06. Within fifteen (15) Business Days after the final determination) by Neutral Accountant has been retained, the Independent Accounting Firm based upon the relative success (in terms of percentages) of each of Buyer’s claimSeller, on the one hand, and Seller’s claimthe Purchaser, on the other hand, shall simultaneously furnish, at its own expense, to the Neutral Accountant and the other Parties a written statement of its positions with respect to each Disputed Item (the date that is the earlier of (A) the date on which the last Party furnished its written statement pursuant to this sentence and (B) fifteen (15) Business Days after the Neutral Accountant has been retained, the “Initial Submission Date”). For exampleWithin fifteen (15) Business Days after the Initial Submission Date, if each of such Party may simultaneously deliver to the final determination reflects a sixty-forty (60-40) compromise Neutral Accountant and to each other its response to the other’s position on each Disputed Item. With each submission, each Party shall furnish to the Neutral Accountant such information and documents as may be requested by the Neutral Accountant and may also furnish to the Neutral Accountant such other information and documents as such Party deems relevant, in each case with copies being given to the other such Party substantially simultaneously. The Neutral Accountant shall, at its discretion or at the written request of the Parties’ claimsSeller and the Purchaser, conduct a conference concerning the Independent Accounting Firm would allocate expenses forty percent (40%) to Disputed Items and the Party (i.e. either BuyerSeller, on the one hand, or Sellerthe Purchaser, on the other hand, shall have the right to present additional documents, materials and other information related to such Disputed Items and to have present its Representatives at such conference. No Party, nor any Representative of any Party, shall be permitted to engage in any ex parte communications (whether written or oral) whose claims were determined to be sixty percent (60%) successful and sixty percent (60%) to with the Party (i.e. either Buyer, on the one hand, or Seller, on the other hand) whose claims were determined to be forty percent (40%) successfulNeutral Accountant.
(giii) If The Neutral Accountant shall be instructed to resolve only the Final Purchase Price is less Disputed Items and shall be instructed not to investigate any other matter independently. In resolving any Disputed Item, the Neutral Accountant may not assign a greater or lesser value to any Disputed Item than that assigned to such Disputed Item by the Estimated Purchase Price Purchaser or the Seller in the Initial Closing Statement or the Notice of Disagreement, as applicable. The Seller and the Purchaser shall request that the Neutral Accountant (such differenceA) make a final determination of all the Disputed Items within twenty (20) Business Days from the Initial Submission Date, represented by and (B) provide a negative number, being the “Overpayment”), then Seller shall pay to Buyer an amount equal to the Overpayment reasonably detailed basis for its determination in immediately available funds to an account designated by Buyerrespect of each Disputed Item.
(h) If the Final Purchase Price exceeds the Estimated Purchase Price (such difference represented by a positive number, being the “Underpayment”), then Buyer shall pay to Seller an amount equal to the Underpayment in immediately available funds to an account designated by Seller.
(iiv) The failure resolution by the Neutral Accountant of Buyer to assert any matter that could have been asserted in the Proposed Closing Statement Disputed Items, absent fraud, intentional misconduct or manifest error, shall be final and that ▇▇▇▇▇ was aware or had knowledge of at shall constitute a waiver of Buyer of any right of Buyer to assert any such matter at any subsequent date as a breach of a representation and warranty against the Seller. For the avoidance of doubt, the Parties agree that the preceding sentence shall not in any way limit Buyer’s right under the RWI Policy.binding upon the
Appears in 1 contract
Post-Closing Adjustment of Purchase Price. (a) As promptly as practicable, but in no event later than sixty (60) Within 90 days following after the Closing Date, the Buyer shall prepare, or cause to be prepared, and deliver to Seller the Sellers Representative a written statement setting (the “Final Closing Statement”) that shall include and set forth Buyer’s calculation of (i) a balance sheet of the Company, as of the Calculation Time (the “Closing Cash, Balance Sheet”) and (ii) a calculation of the actual (A) Net Working Capital (the “Closing Net Working Capital”), (B) Indebtedness (the “Closing Indebtedness”), (iiiC) Cash (the “Closing Cash”), and (D) Transaction Expenses (the “Closing Transaction Expenses”) (with each of Closing Net Working Capital, Closing Indebtedness and Closing Cash determined as of the Calculation Time and, except for Closing Transaction Expenses, (iv) without giving effect to the transactions contemplated herein); provided, for the avoidance of doubt, that, in making such calculations, Closing Net Working Capital Adjustment, and (v) the Purchase Price resulting therefrom (collectively, the “Proposed Closing Statement”). The Proposed Closing Statement will be prepared shall exclude any amounts included in accordance with the Accounting Rules.
(b) Seller shall have a period of thirty (30) days after receipt of the Proposed Closing Statement to review it (the “Review Period”) and to notify Buyer of any disputes regarding the Proposed Closing Statement or the calculation of Closing Cash, Closing Indebtedness, and Closing Transaction Expenses or to avoid any double-counting of any particular adjustment. Closing Net Working Capital. During the Review Period, Seller, ▇▇▇▇▇▇’s accountants, Closing Indebtedness and ▇▇▇▇▇▇’s counsel Closing Cash shall have access to the Group’s books and, work papers and to the persons who prepared the Proposed Closing Statement, be calculated in accordance with customary protocols regarding the Applicable Accounting Principles. All calculations of Closing Net Working Capital, Closing Indebtedness, Closing Cash and Closing Transaction Expenses shall be accompanied by a certificate of a duly authorized officer of the Buyer certifying that such accessamounts have been prepared in good faith in accordance with this Agreement. If the Buyer does not deliver the Final Closing Statement to the Sellers Representative within 90 days after the Closing Date, then, at the election of the Sellers Representative (acting in its sole discretion), either (x) the Sellers Representative may prepare and present the Final Closing Statement within an additional 30 days thereafter or (y) the Preliminary Closing Statement will be deemed to be the Final Closing Statement in accordance with this Section 2.4(a). If the Sellers Representative elects to prepare the Final Closing Statement in accordance with the immediately preceding sentence, then all subsequent references in this Section 2.4 to the Buyer, on the one hand, and the Sellers Representative, on the other hand, will be deemed to be references to the Sellers Representative, on the one hand, and the Buyer, on the other hand, respectively.
(b) The Final Closing Statement shall become final and binding on the 30th day following delivery thereof, unless prior to the end of such period, the Sellers Representative delivers to the Buyer written notice of its disagreement (a “Notice of Disagreement”) specifying the nature and amount of any dispute as to the Closing Net Working Capital, Closing Indebtedness, Closing Cash and/or Closing Transaction Expenses, as set forth in the Final Closing Statement. The Sellers Representative and the Sellers shall be deemed to have agreed with all items and amounts of Closing Net Working Capital, Closing Indebtedness, Closing Cash and/or Closing Transaction Expenses not specifically referenced in the Notice of Disagreement, and such items and amounts shall not be subject to review in accordance with Section 2.4(c).
(c) If Seller approves During the 15-day period following delivery of a Notice of Disagreement by the Sellers Representative to the Buyer, the parties in good faith shall seek to resolve in writing of ▇▇▇▇▇'s determination of the Closing Cash, Closing Indebtedness, Transaction Expenses and Closing Net Working Capital as set forth on the Proposed Closing Statement, or if Seller fails any differences that they may have with respect to deliver an Objection Notice, as provided below, then ▇▇▇▇▇'s determinations as indicated in the Proposed Closing Statement will become binding on all Parties to this Agreement.
(d) If Seller disagrees with the computation of the Closing CashNet Working Capital, the Closing Indebtedness, Closing Cash and/or Closing Transaction Expenses or as specified therein. Any disputed items resolved in writing between the Sellers Representative and the Buyer within such 15-day period shall be final and binding with respect to such items, and if the Sellers Representative and the Buyer agree in writing on the resolution of each disputed item specified by the Sellers Representative in the Notice of Disagreement and the amount of the Closing Net Working Capital as reflected Capital, Closing Indebtedness, Closing Cash and Closing Transaction Expenses, the amounts so determined shall be final and binding on the Proposed Closing Statement, Seller shall deliver a written notice ("Objection Notice") to Buyer, within the Review Period, setting forth Seller’s calculation of such items and the basis, with reasonable specificity, parties for the differences identified by Seller. ▇▇▇▇▇ and ▇▇▇▇▇▇ will negotiate in good faith in an effort to resolve those disputesall purposes hereunder. If the Parties are unable Sellers Representative and the Buyer have not resolved all such differences by the end of such 15-day period, either party shall have the right to resolve any dispute within thirty (30) days after Seller delivers the Objection Noticesubmit, then Buyer and Seller will jointly retain a nationally recognized in writing, to an independent certified public accounting firm that is mutually acceptable to Buyer and Seller (the “Independent Accounting Firm”), acting as arbitrators and experts and not as auditors, to resolve each item in the amounts still Final Closing Statement remaining in dispute (the “Disputed Amounts”)after such 15th day. The Parties shall make readily available Within 10 days of submission of any such disputed amount to the Independent Accounting Firm all relevant books Firm, both the Buyer and records relating to the Proposed Closing Statement, and all other items reasonably requested by the Independent Accounting Firm.
(e) The Independent Accounting Firm Sellers Representative shall not be entitled to consider any items or matters other than the Disputed Amounts and make any adjustments to the Proposed Closing Statement in connection therewith. The Parties agree that enter into the Independent Accounting Firm’s standard engagement letter and shall instruct the Independent Accounting Firm to render its decision regarding each Disputed Amount must be within the range 45 days of values assigned to such Stock Purchase Agreement – Averna/▇▇▇▇▇▇▇ Electronics 15 item in the Proposed Closing Statement and the Objection Notice, respectivelyits referral. The Independent Accounting Firm shall make its a written determination based solely as to each such disputed item and the amount of the Closing Net Working Capital, Closing Indebtedness, Closing Cash and Closing Transaction Expenses, which determination shall be final and binding on presentations the parties for all purposes hereunder and information provided by Buyer shall not be subject to appeal or Seller and not by independent further review. The Independent Accounting FirmFirm shall consider only those items and amounts in the Sellers Representative’s determination as to and the resolution Buyer’s respective calculations of the Disputed Amounts shall be in writing Closing Net Working Capital, Closing Indebtedness, Closing Cash and Closing Transaction Expenses that are identified as being items and amounts to which the Sellers Representative and the Parties shall direct the Independent Auditor to furnish such determination to Seller and Buyer as promptly as practicable after the Disputed Amounts have been referred unable to agree. In resolving any disputed item, the Independent Accounting Firm (may not assign a value to any item greater than the greatest value for such item claimed by either party or less than the smallest value for such item claimed by either party. The Independent Accounting Firm shall be KPMG LLP or, if such firm is unable or unwilling to act, such other independent public accounting firm as shall be agreed in writing by the Sellers Representative and the Buyer. If KPMG declines to accept such engagement and the Sellers Representative and the Buyer are unable to select an alternative Independent Accounting Firm within five Business Days of the expiration of the 15-day period referred to above, then either the Sellers Representative or the Buyer may thereafter request that the American Arbitration Association select an Independent Accounting Firm. The Sellers Representative and the Buyer shall use their commercially reasonable efforts to cause the Independent Accounting Firm to render a written decision resolving the matters submitted to it as promptly as practicable, and in any event within thirty (30) 30 days thereafter, unless following the Parties shall agree in writing otherwise)submission thereof. ▇▇▇▇▇ and ▇▇▇▇▇▇ each agrees that absent bad faith, Fraud, or manifest error on Judgment may be entered upon the part written determination of the Independent Accounting FirmFirm in accordance with Section 11.9. In acting under this Agreement, they shall be bound by the determination of the Disputed Amounts and Final Purchase Price arising therefrom by the Independent Accounting FirmFirm will be entitled to the privileges and immunities of an arbitrator.
(fd) The feescosts of any dispute resolution pursuant to Section 2.4(c), costs including the fees and expenses of the Independent Accounting Firm and of any enforcement of the determination thereof, shall be allocated between Seller borne by the Sellers and ▇▇▇▇▇ the Buyer in inverse proportion as they may prevail on the matters resolved by the Independent Accounting Firm, which proportionate allocation shall be calculated on an aggregate basis based on the relative dollar values of the amounts in dispute and shall be determined (and as set forth in the final determination) by the Independent Accounting Firm based upon at the relative success (in terms time the determination of percentages) such firm is rendered on the merits of the matters submitted. The fees and disbursements of the Representatives of each of Buyer’s claim, on party incurred in connection with the one hand, and Seller’s claim, on the other hand. For example, if the final determination reflects a sixty-forty (60-40) compromise preparation or review of the Parties’ claimsFinal Closing Statement and preparation or review of any Notice of Disagreement, the Independent Accounting Firm would allocate expenses forty percent (40%) to the Party (i.e. either Buyeras applicable, on the one hand, or Seller, on the other hand) whose claims were determined to shall be sixty percent (60%) successful and sixty percent (60%) to the Party (i.e. either Buyer, on the one hand, or Seller, on the other hand) whose claims were determined to be forty percent (40%) successfulborne by such party.
(ge) If The Buyer and the Final Purchase Price is less than Sellers Representative will, and will cause the Company to afford to the Buyer and its Representatives, in the case of the Sellers Representative, and to afford to the Sellers Representative and its Representatives, in the case of the Buyer, reasonable access, during normal business hours and upon reasonable prior notice, to the personnel, properties, books and records of the Company and to any other information reasonably requested for purposes of preparing and reviewing the calculations contemplated by this Section 2.4. Each party shall authorize its accountants to disclose work papers generated by such accountants in connection with preparing and reviewing the calculations of the Net Working Capital, Cash, Indebtedness and Transaction Expenses as specified in this Section 2.4; provided, that such accountants shall not be obligated to make any work papers available except in accordance with such accountants’ disclosure procedures and then only after the non-client party has signed an agreement relating to access to such work papers in form and substance acceptable to such accountants.
(f) The Estimated Purchase Price (such differenceshall be adjusted, represented by a negative numberupwards or downwards, being the “Overpayment”), then Seller shall pay to Buyer an amount equal to the Overpayment in immediately available funds to an account designated by Buyer.
(h) If the Final Purchase Price exceeds the Estimated Purchase Price (such difference represented by a positive number, being the “Underpayment”), then Buyer shall pay to Seller an amount equal to the Underpayment in immediately available funds to an account designated by Seller.as follows:
(i) The failure of Buyer to assert any matter that could have been asserted in the Proposed Closing Statement and that ▇▇▇▇▇ was aware or had knowledge of at shall constitute a waiver of Buyer of any right of Buyer to assert any such matter at any subsequent date as a breach of a representation and warranty against the Seller. For the avoidance purposes of doubtthis Agreement, the Parties agree that “Net Adjustment Amount” means an amount, which may be positive or negative, equal to (A) the preceding sentence shall not in any way limit Buyer’s right under Closing Net Working Capital as finally determined pursuant to this Section 2.4 minus the RWI PolicyEstimated Net Working Capital, plus (B) the Estimated Indebtedness minus the Closing Indebtedness as finally determined pursuant to this Section 2.4, plus (C) the Closing Cash as finally determined pursuant to this Section 2.4 minus the Estimated Cash, plus (D) the Estimated Transaction Expenses minus the Closing Transaction Expenses as finally determined pursuant to this Section 2.4.
Appears in 1 contract
Sources: Securities Purchase Agreement (Patterson Uti Energy Inc)
Post-Closing Adjustment of Purchase Price. (a) As promptly as practicable, but in no event later than sixty (60) Within 60 days following after the Closing Date, the Buyer shall prepare, or cause to be prepared, and deliver to Seller the Sellers a written statement setting (the “Initial Closing Statement”) that shall include and set forth Buyer’s a calculation of (i) the Closing Cash, (ii) the Closing Indebtedness, (iii) the Closing Transaction Expenses, (iv) the Net Working Capital Adjustment, and (v) the Purchase Price resulting therefrom (collectively, the “Proposed Closing StatementNet Working Capital”). The Proposed Closing Statement will be ) (prepared in accordance with the Accounting RulesSample Working Capital Statement), a calculation of Cash of the Company Group (“Closing Cash”), a calculation of Closing Indebtedness of the Company Group (“Closing Indebtedness”) and a calculation of Transaction Expenses as of the Closing (“Closing Transaction Expenses”) (with each of Closing Net Working Capital, Closing Indebtedness, Closing Cash and Closing Transaction Expenses determined as of 11:59 p.m. on the day immediately preceding the Closing Date and, except for Closing Transaction Expenses, without giving effect to the transactions contemplated herein).
(b) Seller shall have a period of thirty (30) days after receipt of the Proposed The Initial Closing Statement to review it shall become final and binding (the “Review PeriodFinal Closing Statement”) on the 60th day following delivery thereof unless, prior to the end of such period, the Sellers’ Representative delivers to the Buyer written notice of its disagreement (a “Notice of Disagreement”) specifying the nature and to notify Buyer amount of any disputes regarding dispute as to the Proposed Closing Statement or the calculation of Net Working Capital, Closing Cash, Closing Indebtedness, Indebtedness or Closing Transaction Expenses or Closing Net Working Capital. During Expenses, as set forth in the Review Period, Seller, ▇▇▇▇▇▇’s accountants, and ▇▇▇▇▇▇’s counsel shall have access to the Group’s books and, work papers and to the persons who prepared the Proposed Initial Closing Statement, in accordance . The Sellers shall be deemed to have agreed with customary protocols regarding such access.
(c) If Seller approves in writing all items and amounts of ▇▇▇▇▇'s determination of the Closing Cash, Closing Indebtedness, Transaction Expenses and Closing Net Working Capital as set forth on the Proposed Closing Statement, or if Seller fails to deliver an Objection Notice, as provided below, then ▇▇▇▇▇'s determinations as indicated not specifically referenced in the Proposed Closing Statement will become binding Notice of Disagreement, and such items and amounts shall not be subject to review in accordance with Section 2.4(c). Any Notice of Disagreement may reference only disagreements based on all Parties to this Agreement.
(d) If Seller disagrees with the computation mathematical errors or based on amounts of the Closing Cash, the Closing Indebtedness, Transaction Expenses or Closing Net Working Capital as reflected on the Proposed Initial Closing StatementStatement not being calculated in accordance with this Section 2.4. For the avoidance of doubt, Seller the Sellers shall be permitted to deliver a written notice only one Notice of Disagreement pursuant to this Section 2.4(b).
("Objection Notice"c) During the 15‑Business Day period following delivery of the Notice of Disagreement by the Sellers’ Representative to the Buyer, within the Review Period, setting forth Seller’s calculation of such items Sellers’ Representative and the basis, with reasonable specificity, for the differences identified by Seller. ▇▇▇▇▇ and ▇▇▇▇▇▇ will negotiate Buyer in good faith in an effort shall seek to resolve those disputesin writing any differences that they may have with respect to the computation of the Closing Net Working Capital, Closing Cash, Closing Indebtedness and Closing Transaction Expenses, as specified therein. Any disputed items resolved in writing between the Sellers’ Representative and the Buyer within such 15‑Business Day period shall become part of the Final Closing Statement and be final and binding with respect to such items, and if the Sellers’ Representative and the Buyer agree in writing on the resolution of each disputed item specified by the Sellers’ Representative in the Notice of Disagreement and the amount of the Closing Net Working Capital, Closing Cash, Closing Indebtedness and Closing Transaction Expenses the amounts so determined shall become part of the Final Closing Statement and be final and binding on the parties for all purposes hereunder. If the Parties are unable Sellers’ Representative and the Buyer have not resolved all such differences by the end of such 15‑Business Day period, within five Business Days following the end of such 15‑Business Day period, the Sellers’ Representative and the Buyer shall engage, pursuant to resolve any dispute within thirty (30) days after Seller delivers the Objection Noticea standard engagement letter, then Buyer and Seller will jointly retain a nationally recognized an independent certified public accounting firm that is of national reputation mutually acceptable to Buyer and Seller (the “Independent Accounting Firm”)) and, acting as arbitrators and experts and not as auditorswithin 15 Business Days following engagement of the Independent Accounting Firm, to resolve the amounts still shall submit, in dispute (the “Disputed Amounts”). The Parties shall make readily available writing, to the Independent Accounting Firm all relevant books and records relating their briefs detailing their respective views as to the Proposed correct nature and amount of each item remaining in dispute and the amount of the Closing StatementNet Working Capital, Closing Cash, Closing Indebtedness and all other items reasonably requested by Closing Transaction Expenses and the Independent Accounting Firm.
(e) The Independent Accounting Firm shall not be entitled make a written determination as to consider any items or matters each such disputed item and the amount of each of the Closing Net Working Capital, Closing Cash, Closing Indebtedness and Closing Transaction Expenses, which determination, along with the other than amounts previously agreed to by the Disputed Amounts and make any adjustments parties pursuant to this Section 2.4, shall comprise the Proposed Closing Statement in connection therewith. The Parties agree that the Independent Accounting Firm’s decision regarding each Disputed Amount must be within the range of values assigned to such Stock Purchase Agreement – Averna/▇▇▇▇▇▇▇ Electronics 15 item in the Proposed Final Closing Statement and be final and binding on the Objection Notice, respectivelyparties for all purposes hereunder and shall not be subject to appeal or further review. The Independent Accounting Firm shall make its determination based solely on presentations consider only those items and information provided by Buyer or Seller amounts in the Sellers’ Representative and not by independent review. The Independent Accounting Firmthe Buyer’s determination as to the resolution respective calculations of the Disputed Amounts shall be in writing Closing Net Working Capital, Closing Cash, Closing Indebtedness and Closing Transaction Expenses that are identified as being items and amounts to which the Sellers’ Representative and the Parties shall direct the Independent Auditor to furnish such determination to Seller and Buyer as promptly as practicable after the Disputed Amounts have been referred unable to agree. In resolving any disputed item, the Independent Accounting Firm (may not assign a value to any item greater than the greatest value for such item claimed by either party or less than the smallest value for such item claimed by either party. The Sellers’ Representative and the Buyer shall use their commercially reasonable efforts to cause the Independent Accounting Firm to render a written decision, which shall specify, with particularity, resolution of the matters submitted to it as promptly as practicable, and in any event within thirty (30) days thereafter, unless 30 Business Days following the Parties shall agree in writing otherwise). ▇▇▇▇▇ and ▇▇▇▇▇▇ each agrees that absent bad faith, Fraud, or manifest error on the part of the Independent Accounting Firm, they shall be bound by the determination of the Disputed Amounts and Final Purchase Price arising therefrom by the Independent Accounting Firmsubmission thereof.
(fd) The feescosts of any dispute resolution pursuant to Section 2.4(c), costs including the fees and expenses of the Independent Accounting Firm and of any enforcement of the determination thereof, shall be allocated between Seller and ▇▇▇▇▇ as determined (and as set forth in the final determination) borne by the Independent Accounting Firm based upon the relative success (in terms of percentages) of each of Buyer’s claimSellers, on the one hand, and Seller’s claimthe Buyer, on the other hand. For example, if in inverse proportion as they may prevail on the final determination reflects a sixty-forty (60-40) compromise matters resolved by the Independent Accounting Firm, which proportionate allocation shall be calculated on an aggregate basis based on the relative dollar values of the Parties’ claims, amounts in dispute and shall be determined by the Independent Accounting Firm would allocate expenses forty percent (40%) to at the Party (i.e. either Buyer, time the determination of such firm is rendered on the one handmerits of the matters submitted. The fees and disbursements of the Representatives of each party incurred in connection with the preparation or review of the Initial Closing Statement and preparation or review of any Notice of Disagreement, or Selleras applicable, on the other hand) whose claims were determined to shall be sixty percent (60%) successful and sixty percent (60%) to the Party (i.e. either Buyer, on the one hand, or Seller, on the other hand) whose claims were determined to be forty percent (40%) successfulborne by such party.
(ge) If The Buyer will, and will cause the Company to, afford the Sellers and their Representatives reasonable access, during normal business hours and upon reasonable prior notice, to the personnel, properties, books and records of the Company Group and to any other information reasonably requested for purposes of preparing and reviewing the calculations contemplated by this Section 2.4. Each party shall authorize its accountants to disclose work papers generated by such accountants in connection with preparing and reviewing the calculations of the Net Working Capital as specified in this Section 2.4; provided, that such accountants shall not be obligated to make any work papers available except in accordance with such accountants’ disclosure procedures and then only after the non-client party has signed an agreement relating to access to such work papers in form and substance acceptable to such accountants and that no party shall be required to provide any attorney-client privileged communications pursuant to this Section 2.4(e).
(f) In accordance with the Final Purchase Price is less than Closing Statement, the Estimated Purchase Price (such differenceshall be adjusted, represented by a negative numberupwards or downwards, being the “Overpayment”), then Seller shall pay to Buyer an amount equal to the Overpayment in immediately available funds to an account designated by Buyer.
(h) If the Final Purchase Price exceeds the Estimated Purchase Price (such difference represented by a positive number, being the “Underpayment”), then Buyer shall pay to Seller an amount equal to the Underpayment in immediately available funds to an account designated by Seller.as follows:
(i) The failure of Buyer to assert any matter that could have been asserted in the Proposed Closing Statement and that ▇▇▇▇▇ was aware or had knowledge of at shall constitute a waiver of Buyer of any right of Buyer to assert any such matter at any subsequent date as a breach of a representation and warranty against the Seller. For the avoidance purposes of doubtthis Agreement, the Parties agree that “Net Adjustment Amount” means an amount, which may be positive or negative, equal to the preceding sentence shall not in any way limit Buyer’s right under aggregate sum of (A) the RWI PolicyClosing Net Working Capital, as finally determined pursuant to this Section 2.4, minus the Estimated Net Working Capital; (B) the Closing Cash, as finally determined pursuant to this Section 2.4, minus the Estimated Cash; (C) the Closing Indebtedness, as finally determined pursuant to this Section 2.4, minus the Estimated Indebtedness; and (D) the Closing Transaction Expenses, as finally determined pursuant to this Section 2.4, minus the Estimated Transaction Expenses.
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Post-Closing Adjustment of Purchase Price. (a) As promptly soon as practicablereasonably practical after the Closing, but in no event later than sixty ninety (6090) days following after the Closing Date, Buyer the Purchaser shall prepare and deliver to the Seller a statement prepared in good faith and in accordance with the Accounting Principles, applied in a manner consistent with the preparation of the Reference Statement of Working Capital, together with reasonably detailed supporting information and calculations (the “Initial Closing Statement”), setting forth Buyerthe Purchaser’s calculation determination of (i) the Closing CashIndebtedness Amount, (ii) the Closing IndebtednessCash Amount, (iii) the Closing Transaction ExpensesDate Working Capital Amount and either the resulting Closing Date Working Capital Excess or Closing Date Working Capital Shortfall, as the case may be, (iv) the Net Working Capital Adjustment, Transaction Expenses and (v) the Purchase Price resulting therefrom amount of the closing date payment (collectively, the “Proposed Closing StatementDate Payment Amount”). The Proposed Closing Statement will be prepared ) calculated in accordance with the Accounting RulesSection 2.02(a).
(b) Seller shall have a period The purpose of thirty determining the Closing Indebtedness Amount, Closing Cash Amount and the Closing Date Working Capital Amount, the Transaction Expenses and the related purchase price adjustment contemplated by this Section 2.06 is to (30i) days after receipt measure the Indebtedness, Transaction Expenses and Cash as of the Proposed Measurement Time and (ii) measure differences in the Closing Statement Date Working Capital Amount against the Working Capital Target Upper Collar and the Working Capital Target Lower Collar, and such processes are not intended to review it (permit the “Review Period”) introduction of judgments, accounting methods, policies, principles, practices, procedures, classifications or estimation methodologies for the purpose of determining Indebtedness, Transaction Expenses, Cash or Closing Date Working Capital Amount that are different from those contemplated by the definitions of each such term and the Accounting Principles. No fact, circumstance or event, including any market or business development, occurring after the Closing, and no change in GAAP or applicable Law after the Closing Date, shall be taken into account in the calculations to notify Buyer be made pursuant to this Section 2.06, including the preparation of any disputes regarding the Proposed Initial Closing Statement or determination of the calculation of Closing Cash, Closing Indebtedness, Closing Transaction Expenses or Closing Net Working Capital. During the Review Period, Seller, ▇▇▇▇▇▇’s accountants, and ▇▇▇▇▇▇’s counsel shall have access to the Group’s books and, work papers and to the persons who prepared the Proposed Final Closing Statement, in accordance with customary protocols regarding such access.
(c) If Seller approves in writing of ▇▇▇▇▇'s Throughout the period following the Closing Date until the determination of the Closing Cash, Closing Indebtedness, Transaction Expenses and Closing Net Working Capital as set forth on the Proposed Final Closing Statement, the Purchaser and the Acquired Companies shall permit the Seller and its Representatives reasonable access (with the right to make copies), during normal business hours upon reasonable advance notice, to the relevant financial books and records of the Purchaser and the Acquired Companies solely for the purposes of the review and objection right contemplated in this Section 2.06, together with reasonable access to members of its accounting and financial staff in connection with the preparation of the Initial Closing Statement in order to respond to the inquiries of the Seller and its Representatives related thereto (it being understood that any such access and the activities related thereto shall be at the Seller’s sole cost and expense and the Purchaser shall have the right to schedule such access by the Seller at a time that the Purchaser determines in its reasonable discretion is least disruptive to the operation of the Purchaser’s business; provided that if the Purchaser delays or if Seller fails to deliver an Objection Notice, as provided belowdefers any such access for a period of ten (10) days or more, then ▇▇▇▇▇'s determinations as indicated in the Proposed Closing Statement will become binding on all Parties Objection Deadline Date shall be extended by an amount of time equal to this Agreementany such delay).
(d) The Seller shall deliver to the Purchaser by the Objection Deadline Date either a notice indicating that the Seller accepts the Initial Closing Statement (the “Notice of Acceptance”) or a statement describing in reasonable detail each of their objections to the Initial Closing Statement (the “Notice of Disagreement”). If the Seller disagrees with timely delivers a Notice of Disagreement, only those matters specified in such Notice of Disagreement shall be deemed to be in dispute (such matters, the computation “Disputed Items”). Any component of the calculations set forth in the Initial Closing CashStatement that is not the subject of a timely delivered Notice of Disagreement by the Seller shall be final and binding upon the Seller and the Purchaser, unless the Closing Indebtedness, Transaction Expenses or Closing Net Working Capital as reflected on resolution of any Disputed Item affects an undisputed component of the Proposed Initial Closing Statement, Seller shall deliver in which case such undisputed component shall, notwithstanding the failure to object to such component in the Notice of Disagreement, be considered a written notice ("Objection Notice") to Buyer, within the Review Period, setting forth Seller’s calculation of such items and the basis, with reasonable specificity, for the differences identified by Seller. ▇▇▇▇▇ and ▇▇▇▇▇▇ will negotiate in good faith in an effort to resolve those disputes. If the Parties are unable to resolve any dispute within thirty (30) days after Seller delivers the Objection Notice, then Buyer and Seller will jointly retain a nationally recognized independent certified public accounting firm that is mutually acceptable to Buyer and Seller (the “Independent Accounting Firm”), acting as arbitrators and experts and not as auditors, to resolve the amounts still in dispute (the “Disputed Amounts”). The Parties shall make readily available Item” to the Independent Accounting Firm all relevant books and records relating to the Proposed Closing Statement, and all other items reasonably requested extent affected by the Independent Accounting Firmsuch resolved Disputed Item.
(e) The Independent Accounting Firm Disputed Items shall not be entitled resolved as follows:
(i) The Seller and the Purchaser shall first use their commercially reasonable efforts to consider resolve such Disputed Items and any items or matters other than written resolution by the Disputed Amounts Seller and make any adjustments to the Proposed Closing Statement in connection therewith. The Parties agree that the Independent Accounting Firm’s decision regarding each Disputed Amount must be within the range of values assigned Purchaser as to such Stock Purchase Agreement – Averna/▇▇▇▇▇▇▇ Electronics 15 item in Disputed Items shall be final and binding upon the Proposed Closing Statement Parties.
(ii) If the Seller and the Objection Notice, respectively. The Independent Accounting Firm shall make its determination based solely on presentations and information provided by Buyer or Seller and Purchaser do not by independent review. The Independent Accounting Firm’s determination as to the reach a resolution of the all Disputed Amounts shall be in writing and the Parties shall direct the Independent Auditor to furnish such determination to Seller and Buyer as promptly as practicable after the Disputed Amounts have been referred to the Independent Accounting Firm (and in any event Items within thirty (30) days thereafter, unless the Parties shall agree in writing otherwise). ▇▇▇▇▇ and ▇▇▇▇▇▇ each agrees that absent bad faith, Fraud, or manifest error on the part Business Days after delivery of the Independent Accounting FirmNotice of Disagreement, they shall be bound by the determination of the Disputed Amounts and Final Purchase Price arising therefrom by the Independent Accounting Firm.
(f) The fees, costs and expenses of the Independent Accounting Firm shall be allocated between Seller and ▇▇▇▇▇ as determined the Purchaser shall, within fifteen (15) Business Days following the expiration of such thirty (30)-Business Day period, engage the Neutral Accountant to resolve any remaining Disputed Items. If one or more Disputed Items are submitted to the Neutral Accountant for resolution, the Seller and as set forth the Purchaser shall, within such fifteen (15)-Business Day period, enter into a customary engagement letter, and to the extent necessary, each Party shall waive and cause its Affiliates to waive any then-existing conflicts with the Neutral Accountant and shall cooperate with the Neutral Accountant in connection with its determination pursuant to this Section 2.06. Within fifteen (15) Business Days after the final determination) by Neutral Accountant has been retained, the Independent Accounting Firm based upon the relative success (in terms of percentages) of each of Buyer’s claimSeller, on the one hand, and Seller’s claimthe Purchaser, on the other hand, shall simultaneously furnish, at its own expense, to the Neutral Accountant and the other Parties a written statement of its positions with respect to each Disputed Item (the date that is the earlier of (A) the date on which the last Party furnished its written statement pursuant to this sentence and (B) fifteen (15) Business Days after the Neutral Accountant has been retained, the “Initial Submission Date”). For exampleWithin fifteen (15) Business Days after the Initial Submission Date, if each of such Party may simultaneously deliver to the final determination reflects a sixty-forty (60-40) compromise Neutral Accountant and to each other its response to the other’s position on each Disputed Item. With each submission, each Party shall furnish to the Neutral Accountant such information and documents as may be requested by the Neutral Accountant and may also furnish to the Neutral Accountant such other information and documents as such Party deems relevant, in each case with copies being given to the other such Party substantially simultaneously. The Neutral Accountant shall, at its discretion or at the written request of the Parties’ claimsSeller and the Purchaser, conduct a conference concerning the Independent Accounting Firm would allocate expenses forty percent (40%) to Disputed Items and the Party (i.e. either BuyerSeller, on the one hand, or the Purchaser, on the other hand, shall have the right to present additional documents, materials and other information related to such Disputed Items and to have present its Representatives at such conference. No Party, nor any Representative of any Party, shall be permitted to engage in any ex parte communications (whether written or oral) with the Neutral Accountant.
(iii) The Neutral Accountant shall be instructed to resolve only the Disputed Items and shall be instructed not to investigate any other matter independently. In resolving any Disputed Item, the Neutral Accountant may not assign a greater or lesser value to any Disputed Item than that assigned to such Disputed Item by the Purchaser or the Seller in the Initial Closing Statement or the Notice of Disagreement, as applicable. The Seller and the Purchaser shall request that the Neutral Accountant (A) make a final determination of all the Disputed Items within twenty (20) Business Days from the Initial Submission Date, and (B) provide a reasonably detailed basis for its determination in respect of each Disputed Item.
(iv) The resolution by the Neutral Accountant of the Disputed Items, absent fraud, intentional misconduct or manifest error, shall be final and binding upon the Parties. Subject to the foregoing, the Parties agree that the procedures set forth in this Section 2.06(e) for resolving disputes with respect to the Initial Closing Statement and the Closing Date Payment Amount, including the components thereof, shall be the sole and exclusive method for resolving any such disputes. The Neutral Accountant shall act as an expert, not as an arbitrator, in resolving such Disputed Items. The proceeding before the Neutral Accountant shall be an expert determination under applicable Laws governing expert determination and appraisal proceedings.
(v) The Purchaser, on the one hand, and the Seller, on the other hand, shall each bear one-half of the fees and expenses of the Neutral Accountant.
(f) whose claims were determined The Initial Closing Statement, including any modifications resulting from the resolution pursuant to Section 2.06(e) of any Disputed Items set forth in the Notice of Disagreement, if applicable, shall be deemed to be sixty percent the Final Closing Statement and be final and binding upon the Seller and the Purchaser for the purposes of this Agreement upon the earliest to occur of: (60%i) successful the delivery by the Seller of the Notice of Acceptance or the failure of the Seller to deliver the Notice of Disagreement by the Objection Deadline Date; (ii) the resolution of all Disputed Items by the Seller and sixty percent the Purchaser pursuant to Section 2.06(e)(i) or otherwise; and (60%iii) the resolution of all Disputed Items pursuant to Section 2.06(e)(iii) by the Neutral Accountant. Within five (5) Business Days after the Final Closing Statement becomes or is deemed to be final and binding upon the Parties, an adjustment to the Party Estimated Closing Date Payment Amount and a payment by wire transfer of immediately available funds in respect thereof shall be made as follows:
(i.e. either Buyeri) If the Closing Date Payment Amount, on as finally determined in accordance with the one handforegoing provisions of this Section 2.06, or Sellerexceeds the Estimated Closing Date Payment Amount (such difference, on the other hand“Closing Underpayment”), the Purchaser shall pay to the Seller an amount equal to such Closing Underpayment to the Purchase Price Bank Account.
(ii) whose claims were If the Closing Date Payment Amount, as finally determined in accordance with the foregoing provisions of this Section 2.06, is less than the Estimated Closing Date Payment Amount (such difference, the “Closing Overpayment”), the Seller shall pay to the Purchaser an amount equal to such Closing Overpayment to a bank account designated in writing by the Purchaser (such designation to be forty percent made within two (40%2) successfulBusiness Days after the Final Closing Statement becomes or is deemed final).
(g) If To the Final Purchase Price extent that any amount is less than taken into account in determining the Estimated Purchase Price (Closing Cash Amount or the Closing Indebtedness Amount, no amount with respect to a matter to which such differenceobligation, represented by a negative number, being the “Overpayment”), then Seller payment or amount relates shall pay to Buyer an amount equal to the Overpayment in immediately available funds to an account designated by Buyer.
(h) If the Final Purchase Price exceeds the Estimated Purchase Price (such difference represented by a positive number, being the “Underpayment”), then Buyer shall pay to Seller an amount equal to the Underpayment in immediately available funds to an account designated by Seller.
(i) The failure of Buyer to assert any matter that could have been asserted be included in the Proposed calculation of the Closing Statement and that ▇▇▇▇▇ was aware or had knowledge Date Working Capital Amount. No amount with respect to a matter shall be included more than once in the calculation of at shall constitute a waiver of Buyer of any right of Buyer to assert any such matter at any subsequent date as a breach of a representation and warranty against the Seller. For the avoidance of doubt, the Parties agree that the preceding sentence shall not in any way limit Buyer’s right under the RWI PolicyClosing Date Payment Amount.
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Sources: Purchase and Sale Agreement (Packaging Corp of America)