Post-Closing Adjustment to the Purchase Price. (a) Within sixty (60) days subsequent to the Closing Date, Buyer shall prepare in accordance with GAAP and the Estimated Closing Balance Sheet and deliver to Seller a consolidated balance sheet of the Business as of the close of business on the Closing Date (the "Closing Balance Sheet"). Upon completion of the Closing Balance Sheet, Buyer shall determine the post-closing cash adjustment (the "Cash Adjustment"), which Cash Adjustment shall be equal to the difference between the Working Capital of the Business as set forth on the Closing Balance Sheet and $11 million. If the Working Capital of the Business as set forth on the Closing Balance Sheet is less than $11 million, Seller shall pay to Buyer an amount equal to the Cash Adjustment. If the Working Capital of the Business as set forth on the Closing Balance Sheet is greater than $11 million, Buyer shall pay to Seller an amount equal to the Cash Adjustment. Notwithstanding the foregoing, neither party shall (i) be required to pay a Cash Adjustment under this Section 2.3 unless such Cash Adjustment exceeds $100,000, in which case the applicable party shall pay only such portion of the Cash Adjustment that exceeds $100,000, and (ii) be required, in any event, to pay a Cash Adjustment under this Section 2.3 that exceeds $900,000. Concurrently with Buyer's delivery to Seller of the Closing Balance Sheet, Buyer shall deliver to Seller a reasonably detailed calculation of the Cash Adjustment along with the basis for such calculations. If Seller does not object to the amount of the Cash Adjustment within thirty (30) days of receipt thereof, such Cash Adjustment shall be final and binding and Seller shall pay to Buyer, or Buyer shall pay to Seller, as the case may be, no later than the fifth (5th) business day after the thirtieth (30th) day following receipt of the calculation of the Cash Adjustment an amount in cash equal to the Cash Adjustment, if any. (b) If Seller objects to the Cash Adjustment, if any, it shall notify Buyer in writing within thirty (30) days following receipt thereof, setting forth in specific detail the basis for its objection and its proposal for any adjustments to the Cash Adjustment. Buyer and Seller shall seek in good faith to reach agreement as to any such proposed adjustment or that no such adjustment is necessary within thirty (30) days following Buyer's receipt of written notice of Seller's objection. If agreement is reached in writing within such period as to all proposed further adjustments, or that no adjustments are necessary, the parties shall make such adjustments, if any, and the Cash Adjustment shall be based thereon. If Buyer and Seller are unable to reach agreement within thirty (30) days following Buyer's receipt of written notice of Seller's objection, then a "Big-4" independent accounting firm as agreed upon by Buyer and Seller (the "Third Party Accounting Firm") shall be engaged to review the proposed Cash Adjustment and, to the extent necessary, the Closing Balance Sheet, and such Third Party Accounting Firm shall make a determination as to the resolution of any adjustments necessary to cause the Cash Adjustment to have been properly prepared in accordance with this Agreement. All such resolutions shall relate only to such matters as are still in dispute and shall represent either agreement with the position taken by Buyer or Seller or a compromise between such positions. The determination of the Third Party Accounting Firm shall be delivered as soon as practicable following selection of the Third Party Accounting Firm and shall be final, conclusive and binding upon the parties. Thereafter, Seller shall pay to Buyer, or Buyer shall pay to Seller, as the case may be, not later than five (5) business days following the determination of adjustments by the Third Party Accounting Firm, an amount in cash equal to the Cash Adjustment, if any, as determined by the Third Party Accounting Firm. All fees and expenses of the Third Party Accounting Firm shall be borne pro rata by Buyer and Seller in proportion to the allocation of the dollar amount of changes made by the Third Party Accounting Firm.
Appears in 1 contract
Post-Closing Adjustment to the Purchase Price. (a) Within sixty (60) days subsequent to the Closing Date, Buyer shall prepare in accordance with GAAP and the Estimated Closing Balance Sheet and deliver to Seller a consolidated balance sheet of the Business as of the close of business on If the Closing Date Purchase Price Adjustment Amount is less than zero (the "Closing Balance Sheet"). Upon completion of the Closing Balance Sheet, Buyer shall determine the post-closing cash adjustment (the "Cash Adjustment"0), which Cash Adjustment then Seller shall be equal owe the absolute value of such amount so calculated to the difference between the Working Capital of the Business as set forth on the Closing Balance Sheet Purchaser, subject to Sections 1.4(b) and $11 million(c) below. If the Working Capital of the Business as set forth on the Closing Balance Sheet is less than $11 million, Seller shall pay to Buyer an amount equal to the Cash Adjustment. If the Working Capital of the Business as set forth on the Closing Balance Sheet Date Purchase Price Adjustment Amount is greater than $11 millionzero (0), Buyer then Purchaser shall pay to Seller an owe such amount equal to the Cash Adjustment. Notwithstanding the foregoing, neither party shall (i) be required to pay a Cash Adjustment under this Section 2.3 unless such Cash Adjustment exceeds $100,000, in which case the applicable party shall pay only such portion of the Cash Adjustment that exceeds $100,000, and (ii) be required, in any event, to pay a Cash Adjustment under this Section 2.3 that exceeds $900,000. Concurrently with Buyer's delivery to Seller of the Closing Balance Sheet, Buyer shall deliver to Seller a reasonably detailed calculation of the Cash Adjustment along with the basis for such calculations. If Seller does not object to the amount of the Cash Adjustment within thirty (30) days of receipt thereof, such Cash Adjustment shall be final and binding and Seller shall pay to Buyer, or Buyer shall pay so calculated to Seller, as the case may be, no later than the fifth subject to Sections 1.4(b) and (5thc) business day after the thirtieth (30th) day following receipt of the calculation of the Cash Adjustment an amount in cash equal to the Cash Adjustment, if anybelow.
(b) Upon final determination of the Closing Date Purchase Price Adjustment Amount, the party owing the Closing Date Purchase Price Adjustment Amount shall, within five (5) business days, pay to the other party in immediately available funds, the sum of (i) the Closing Date Purchase Price Adjustment Amount, plus (ii) daily interest accrued thereon at a rate of seven percent (7%) per annum from the Closing Date.
(c) Purchaser shall prepare or cause to be prepared the Closing Date Balance Sheet, with the expense to be borne by Purchaser. As promptly as possible after the Closing and in any event within seventy-five (75) days after the Closing Date, Purchaser shall deliver to Seller the Closing Date Balance Sheet and a statement detailing the calculation of the Closing Date Purchase Price Adjustment Amount. Purchaser agrees to cooperate with Seller to provide Seller and Seller's independent accountants with reasonable access to: (i) all information (including but not limited to the workpapers of Purchaser's independent accountants) used by Purchaser to prepare the Closing Date Balance Sheet and the calculation of the Closing Date Purchase Price Adjustment Amount; and (ii) as well as information arising subsequent to the Closing Date Balance Sheet that reasonably relates to the Closing Date Balance Sheet and the Closing Date Purchase Price Adjustment Amount. On or before the date that is seventy-five (75) days following the delivery of the Closing Date Balance Sheet and the calculation of the Closing Date Purchase Price Adjustment Amount by Purchaser to Seller, Seller may object to the Closing Date Balance Sheet and/or the calculation of the Closing Date Purchase Price Adjustment Amount by delivering a detailed written statement to Purchaser describing its objections. If Seller objects to the Cash AdjustmentClosing Date Balance Sheet and/or the Closing Date Purchase Price Adjustment Amount as calculated by Purchaser, the parties shall attempt to resolve such dispute by negotiation. If the parties are unable to resolve such dispute within twenty (20) days of any objection by Seller, the parties shall appoint KPMG LLP, certified public accountants, or, if unavailable, such firm which is one of the "Big Five" independent accounting firms (excluding ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP and PricewaterhouseCoopers LLP), as shall be mutually agreeable to the parties, and KPMG LLP or such other accounting firm shall review the Closing Date Balance Sheet and the Closing Date Purchase Price Adjustment Amount as calculated by Purchaser and determine the adjustment to such calculation of the Closing Date Purchase Price Adjustment Amount, if any, it shall notify Buyer in writing within thirty (30) days following receipt thereof, setting forth in specific detail the basis for its objection and its proposal for any adjustments to the Cash Adjustment. Buyer and Seller shall seek in good faith to reach agreement as to any such proposed adjustment or that no such adjustment is necessary within thirty (30) days following Buyer's receipt of written notice of Seller's objection. If agreement is reached in writing within such period as to all proposed further adjustments, or that no adjustments are necessary, the parties shall make such adjustments, if any, and the Cash Adjustment shall be based thereon. If Buyer and Seller are unable to reach agreement within thirty (30) days following Buyer's receipt of written notice of Seller's objection, then a "Big-4" independent accounting firm as agreed upon by Buyer and Seller (the "Third Party Accounting Firm") shall be engaged to review the proposed Cash Adjustment and, to the extent necessary, the Closing Balance Sheet, and such Third Party Accounting Firm shall make a determination as to the resolution of any adjustments necessary to cause the Cash Adjustment to have been properly prepared in accordance with this Agreement. All such resolutions shall relate only to such matters as are still in dispute and shall represent either agreement with the position taken expense of such review to be borne one-half by Buyer or Seller or a compromise between such positionsPurchaser and one-half by Seller. The determination by KPMG LLP or such other accounting firm of the Third Party Accounting Firm Closing Date Purchase Price Adjustment Amount shall be delivered as soon as practicable following selection binding on the parties hereto; provided, however, that the acceptance by Seller and Purchaser of such determination of the Third Party Accounting Firm and Closing Date Purchase Price Adjustment Amount shall not constitute or be final, conclusive and binding upon the parties. Thereafter, Seller shall pay deemed to Buyer, or Buyer shall pay to Seller, as the case may be, not later than five (5) business days following the determination of adjustments by the Third Party Accounting Firm, an amount in cash equal to the Cash Adjustment, if any, as determined by the Third Party Accounting Firm. All fees and expenses constitute a waiver of the Third Party Accounting Firm shall be borne pro rata by Buyer and Seller rights of such party in proportion to the allocation respect of the dollar amount any other provision of changes made by the Third Party Accounting Firmthis Agreement.
Appears in 1 contract
Sources: Stock Purchase Agreement (Edgewater Technology Inc/De/)
Post-Closing Adjustment to the Purchase Price. (a) Within sixty (60) days subsequent to the Closing Date, Buyer shall prepare in accordance with GAAP and the Estimated Closing Balance Sheet and deliver to Seller a consolidated balance sheet of the Business as of the close of business on the Closing Date (the "Closing Balance Sheet"). Upon completion of the Closing Balance Sheet, Buyer shall determine the post-closing cash adjustment (the "“Cash Adjustment"”), which Cash Adjustment shall be equal to the difference between the Working Capital Net Equity of the Business Company as set forth on the Closing Cut-Off Balance Sheet (as such Net Equity of the Company may be adjusted (other than for income tax-related items) by Buyer in good faith consistent with the post-closing audit of the Company to be performed by Buyer’s independent auditors) and $11 million16,500,000. If the Working Capital Net Equity of the Business Company as set forth on the Closing Cut-Off Balance Sheet (as may be adjusted as set forth above) is less than $11 million16,500,000, Seller the Shareholders shall pay to Buyer an amount equal to the Cash Adjustment. If the Working Capital Net Equity of the Business Company as set forth on the Closing Cut-Off Balance Sheet (as may be adjusted as set forth above) is greater than $11 million16,500,000, Buyer shall pay to Seller the Shareholders (pro rata pursuant to their relative shareholdings set forth on Schedule I attached hereto) an amount equal to the Cash Adjustment. Notwithstanding the foregoing, neither party shall (i) be required to pay a Cash Adjustment under this Section 2.3 unless such Cash Adjustment exceeds $100,000, in which case the applicable party shall pay only such portion of the Cash Adjustment that exceeds $100,000, and (ii) be required, in any event, to pay a Cash Adjustment under this Section 2.3 that exceeds $900,000. Concurrently with Buyer's delivery to Seller of the Closing Balance Sheet, Buyer shall promptly deliver to Seller the Shareholders a reasonably detailed calculation of the Cash Adjustment along with the basis for such calculations. If Seller does the Shareholders do not object to the amount of the Cash Adjustment within thirty twenty (3020) days of receipt thereof, such Cash Adjustment shall be final and binding and Seller the Shareholders shall pay to Buyer, or Buyer shall pay to Sellerthe Shareholders, as the case may be, no later than the fifth (5th) business day after the thirtieth twentieth (30th20th) day following receipt of the calculation of the Cash Adjustment an amount in cash equal to the Cash Adjustment, if any.
(b) If Seller objects the Shareholders object to the Cash Adjustment, if any, it they shall notify Buyer in writing within thirty twenty (3020) days following receipt thereof, setting forth in specific detail the basis for its their objection and its their proposal for any adjustments to the Cash Adjustment. Buyer and Seller the Shareholders shall seek in good faith to reach agreement as to any such proposed adjustment or that no such adjustment is necessary within thirty (30) days following Buyer's receipt of written notice of Seller's the Shareholders’ objection. If agreement is reached in writing within such period as to all proposed further adjustments, or that no adjustments are necessary, the parties shall make such adjustments, if any, and the Cash Adjustment shall be based thereon. If Buyer and Seller the Shareholders are unable to reach agreement within thirty (30) days following Buyer's receipt of written notice of Seller's the Shareholders’ objection, then a "“Big-4" independent ” accounting firm as agreed upon by Buyer and Seller the Shareholders (the "“Third Party Accounting Firm"”) shall be engaged to review the proposed Cash Adjustment and, to the extent necessary, the Closing Cut-Off Balance SheetSheet and/or any other documents or information supporting any adjustments made to Net Equity of the Company pursuant to Section 2.3(a), and such Third Party Accounting Firm shall make a determination as to the resolution of any adjustments necessary to cause the Cash Adjustment to have been properly prepared in accordance with this Agreement. All such resolutions shall relate only to such matters as are still in dispute and shall represent either agreement with the position taken by Buyer or Seller the Shareholders or a compromise between such positions. The determination of the Third Party Accounting Firm shall be delivered as soon as practicable following selection of the Third Party Accounting Firm and shall be final, conclusive and binding upon the parties. Thereafter, Seller the Shareholders shall pay to Buyer, or Buyer shall pay to Sellerthe Shareholders, as the case may be, not later than five (5) business days following the determination of adjustments by the Third Party Accounting Firm, an amount in cash equal to the Cash Adjustment, if any, as determined by the Third Party Accounting Firm. All fees and expenses of the Third Party Accounting Firm shall be borne pro rata by Buyer and Seller the Shareholders in proportion to the allocation of the dollar amount of changes made by the Third Party Accounting FirmFirm such that the prevailing party pays a lesser portion of such fees and expenses.
Appears in 1 contract
Post-Closing Adjustment to the Purchase Price. (a) Within sixty (60) days subsequent to after the Closing Date, Seller shall deliver to Buyer a certificate (the “Preliminary Adjustment Statement”) setting forth Seller’s calculation of the Closing Inventory and the Purchase Price, and the adjustment necessary to reconcile the Estimated Purchase Price to the Purchase Price (the “Post-Closing Adjustment”). The Preliminary Adjustment Statement shall be consistent with, and be prepared using, the Accounting Policies and shall include reasonable supporting detail as to each of the calculations contained therein. Buyer shall prepare reasonably cooperate with Seller and its Representatives in accordance with GAAP Seller’s preparation of the Preliminary Adjustment Statement and the Estimated Post-Closing Balance Sheet Adjustment and, without limiting the generality of the foregoing, shall provide Seller with reasonable access to the books and records and necessary personnel of the Business to be made available during normal business hours to Seller and its Representatives in such preparation.
(b) During the fifteen (15) days immediately following Buyer’s receipt of the Preliminary Adjustment Statement, Seller shall provide Buyer with reasonable access to all books and records and all financial information relevant to the preparation of the Preliminary Adjustment Statement and the calculation of the Post-Closing Adjustment that are under control of or in the possession of Seller (or its Representatives and advisors), including Seller’s working papers relating to same. If Buyer does not deliver to Seller a consolidated balance sheet written notice objecting to the Preliminary Adjustment Statement and the Post-Closing Adjustment (a “Notice of Objections”), within fifteen (15) days after receipt of same, then the Preliminary Adjustment Statement and the Post-Closing Adjustment as calculated by Seller (including the Closing Inventory set forth therein) shall be deemed final and binding upon the parties.
(c) If Buyer timely delivers a Notice of Objections to Seller, then the parties shall meet and exchange information in a good faith attempt to agree upon the calculation of the Business as Purchase Price and the Post-Closing Adjustment. If Seller and Buyer have not come to an agreement within thirty (30) days following the delivery of the close Notice of business on Objections, the Closing Date parties will engage and submit such calculations to final and binding arbitration by PricewaterhouseCoopers or if such firm is unable or unwilling to act, such other nationally recognized, independent public accounting firm mutually agreed upon by Seller and Buyer in writing (the "Closing Balance Sheet"). Upon completion of the Closing Balance Sheet, Buyer shall determine the post-closing cash adjustment (the "Cash Adjustment"“Independent Accountant”), which Cash determination of the Purchase Price and the Post-Closing Adjustment shall be conclusive for all purposes and binding upon the parties and upon which a judgment may be rendered by a court having proper jurisdiction over the party against which such determination is to be enforced. Buyer and Seller shall have the opportunity to present their positions with respect to such disputed matters to the Independent Accountant in accordance with this Section 3.2. The Independent Accountant shall: (i) render its decision in writing based on and consistent with and using the Accounting Policies, and (ii) rule only upon the objections raised in the Notice of Objections which shall not have been resolved by the parties prior to such submission and adopt a position that is either equal to the difference Seller’s proposed position, equal to Buyer’s proposed position or between the Working Capital positions proposed by Seller and Buyer, and accepting all other aspects of the Business calculations which are not in dispute. Seller and Buyer shall request that the Independent Accountant deliver its written decision setting forth such calculation and the basis therefor as promptly as practicable and in any event within thirty (30) days following its retention, solely in accordance with the terms and provisions of this Agreement. The costs, fees and expenses of the Independent Accountant pursuant to this Section 3.2 (including any retainer and reasonable attorney fees) shall be apportioned between Seller and Buyer based upon inverse proportion of the disputed amounts resolved in favor of such party (i.e., so that the prevailing party bears a lesser amount of such costs, fees and expenses) as determined by the Independent Accountant and set forth on in the Closing Balance Sheet written decision of the Independent Accountant; provided, that, initially, any retainer charged by the Independent Accountant shall be borne equally by Seller and $11 millionBuyer. Other than the fees and expenses referred to in the immediately preceding sentence, the fees and disbursements of Seller’s accountants shall be borne by Seller and the fees and disbursements of Buyer’s accountants shall be borne by Buyer.
(d) If the Working Capital of the Business Purchase Price (as set forth on the Closing Balance Sheet finally determined pursuant to Section 3.2) is less than $11 millionthe Estimated Purchase Price, then Seller shall pay to Buyer an amount equal to the Cash Post-Closing Adjustment. If the Working Capital of the Business Purchase Price (as set forth on the Closing Balance Sheet finally determined pursuant to Section 3.2) is greater than $11 millionthe Estimated Purchase Price, then Buyer shall pay to Seller an amount equal to the Cash Post-Closing Adjustment. Notwithstanding the foregoing, neither party shall (i) be required to pay a Cash Adjustment All payments by Seller or Buyer under this Section 2.3 unless such Cash Adjustment exceeds $100,000, in which case the applicable party shall pay only such portion of the Cash Adjustment that exceeds $100,000, and (ii) be required, in any event, to pay a Cash Adjustment under this Section 2.3 that exceeds $900,000. Concurrently with Buyer's delivery to Seller of the Closing Balance Sheet, Buyer shall deliver to Seller a reasonably detailed calculation of the Cash Adjustment along with the basis for such calculations. If Seller does not object to the amount of the Cash Adjustment within thirty (30) days of receipt thereof, such Cash Adjustment shall be final and binding and Seller shall pay to Buyer, or Buyer shall pay to Seller, as the case may be, no later than the fifth (5th) business day after the thirtieth (30th) day following receipt of the calculation of the Cash Adjustment an amount in cash equal to the Cash Adjustment, if any.
(b) If Seller objects to the Cash Adjustment, if any, it shall notify Buyer in writing within thirty (30) days following receipt thereof, setting forth in specific detail the basis for its objection and its proposal for any adjustments to the Cash Adjustment. Buyer and Seller shall seek in good faith to reach agreement as to any such proposed adjustment or that no such adjustment is necessary within thirty (30) days following Buyer's receipt of written notice of Seller's objection. If agreement is reached in writing within such period as to all proposed further adjustments, or that no adjustments are necessary, the parties shall make such adjustments, if any, and the Cash Adjustment shall be based thereon. If Buyer and Seller are unable to reach agreement within thirty (30) days following Buyer's receipt of written notice of Seller's objection, then a "Big-4" independent accounting firm as agreed upon by Buyer and Seller (the "Third Party Accounting Firm"3.2(d) shall be engaged made within five (5) Business Days of the final determination of the Purchase Price and the Post-Closing Adjustment pursuant to review the proposed Cash Adjustment andSection 3.2 by wire transfer of immediately available funds. For Tax purposes, to the extent necessary, the Closing Balance Sheet, and such Third Party Accounting Firm shall make a determination as to the resolution of any adjustments necessary to cause the Cash Adjustment to have been properly prepared in accordance with this Agreement. All such resolutions shall relate only to such matters as are still in dispute and shall represent either agreement with the position taken payment by Buyer or Seller or a compromise between such positions. The determination of the Third Party Accounting Firm under this Agreement, including pursuant to Article VIII, shall be delivered treated as soon as practicable following selection of the Third Party Accounting Firm and shall be final, conclusive and binding upon the parties. Thereafter, Seller shall pay to Buyer, or Buyer shall pay to Seller, as the case may be, not later than five (5) business days following the determination of adjustments by the Third Party Accounting Firm, an amount in cash equal adjustment to the Cash Adjustment, if any, as determined Purchase Price unless a contrary treatment is required by the Third Party Accounting Firm. All fees and expenses of the Third Party Accounting Firm shall be borne pro rata by Buyer and Seller in proportion to the allocation of the dollar amount of changes made by the Third Party Accounting FirmLaw.
Appears in 1 contract
Post-Closing Adjustment to the Purchase Price. (a) Within On or before the date that is sixty (60) days subsequent to after the Closing Date, Buyer Seller shall prepare in accordance with GAAP and the Estimated Closing Balance Sheet and deliver to Seller Purchaser a consolidated balance sheet revised Closing Statement setting forth the Purchase Price adjustments and the Adjusted Purchase Price. To the extent reasonably required by Seller, Purchaser shall assist in the preparation of the Business revised Closing Statement. Seller shall provide to Purchaser such data and information as Purchaser may reasonably request supporting the amounts reflected on the revised Closing Statement in order to permit Purchaser to perform or cause to be performed an audit of the close of business on the revised Closing Date (the "Statement at Purchaser’s expense. The revised Closing Balance Sheet"). Upon completion of the Closing Balance Sheet, Buyer Statement shall determine the post-closing cash adjustment (the "Cash Adjustment"), which Cash Adjustment shall be equal to the difference between the Working Capital of the Business as set forth on the Closing Balance Sheet and $11 million. If the Working Capital of the Business as set forth on the Closing Balance Sheet is less than $11 million, Seller shall pay to Buyer an amount equal to the Cash Adjustment. If the Working Capital of the Business as set forth on the Closing Balance Sheet is greater than $11 million, Buyer shall pay to Seller an amount equal to the Cash Adjustment. Notwithstanding the foregoing, neither party shall (i) be required to pay a Cash Adjustment under this Section 2.3 unless such Cash Adjustment exceeds $100,000, in which case the applicable party shall pay only such portion of the Cash Adjustment that exceeds $100,000, and (ii) be required, in any event, to pay a Cash Adjustment under this Section 2.3 that exceeds $900,000. Concurrently with Buyer's delivery to Seller of the Closing Balance Sheet, Buyer shall deliver to Seller a reasonably detailed calculation of the Cash Adjustment along with the basis for such calculations. If Seller does not object to the amount of the Cash Adjustment within thirty (30) days of receipt thereof, such Cash Adjustment shall be become final and binding and Seller shall pay to Buyer, or Buyer shall pay to Seller, as upon the case may be, no later than parties on the fifth date (5ththe “Final Settlement Date”) business day after the thirtieth (30th) day following receipt of the calculation of the Cash Adjustment an amount in cash equal to the Cash Adjustment, if any.
(b) If Seller objects to the Cash Adjustment, if any, it shall notify Buyer in writing within that is thirty (30) days following receipt thereof, setting forth thereof by Purchaser unless Purchaser gives written notice of its disagreement (“Notice of Disagreement”) to Seller prior to such date. Any Notice of Disagreement shall specify in specific detail the dollar amount, nature, and basis for its objection of any disagreement so asserted. If a Notice of Disagreement is received by Seller in a timely manner, then Seller and its proposal for any adjustments to the Cash Adjustment. Buyer and Seller Purchaser shall seek diligently work in good faith to reach agreement as on a final Closing Statement. If the Parties fail to any such proposed adjustment or that no such adjustment is necessary agree on the final Closing Statement within thirty (30) days following Buyer's receipt after the date of written notice the Notice of Seller's objection. If agreement is reached in writing within such period as to all proposed further adjustments, or that no adjustments are necessaryDisagreement, the parties matter may be submitted by either party to arbitration under Section 9.9. The Closing Statement shall make such adjustments, if anybecome final and binding on the Parties on, and the Cash Adjustment Final Settlement Date shall be based thereonbe, the earlier of (i) the date upon which Seller and Purchaser agree in writing with respect to all matters specified in the Notice of Disagreement or (ii) the date on which the arbitrators’ final decision is issued under Section 9.9.
(b) If the Adjusted Purchase Price, as finally determined pursuant to this Section 2.5, is less than the Estimated Adjusted Purchase Price delivered pursuant to Section 2.4, then Seller will pay to Purchaser, within two business days, by wire transfer of immediately available funds, the amount of such shortfall. If Buyer and Seller are unable the Adjusted Purchase Price, as finally determined pursuant to reach agreement within thirty (30) days following Buyer's receipt of written notice of Seller's objectionthis Section 2.5, is greater than the Estimated Adjusted Purchase Price delivered pursuant to Section 2.4, then a "Big-4" independent accounting firm as agreed upon by Buyer and Seller (the "Third Party Accounting Firm") shall be engaged to review the proposed Cash Adjustment and, to the extent necessary, the Closing Balance Sheet, and such Third Party Accounting Firm shall make a determination as to the resolution of any adjustments necessary to cause the Cash Adjustment to have been properly prepared in accordance with this Agreement. All such resolutions shall relate only to such matters as are still in dispute and shall represent either agreement with the position taken by Buyer or Seller or a compromise between such positions. The determination of the Third Party Accounting Firm shall be delivered as soon as practicable following selection of the Third Party Accounting Firm and shall be final, conclusive and binding upon the parties. Thereafter, Seller shall pay to Buyer, or Buyer shall Purchaser will pay to Seller, as within two business days, by wire transfer of immediately available funds, the case may be, not later than five (5) business days following the determination amount of adjustments by the Third Party Accounting Firm, such excess. Such payment shall be deemed an amount in cash equal to the Cash Adjustment, if any, as determined by the Third Party Accounting Firm. All fees and expenses adjustment of the Third Party Accounting Firm shall be borne pro rata by Buyer and Seller Purchase Price in proportion to the allocation of the dollar amount of changes made by the Third Party Accounting FirmSection 2.2.
Appears in 1 contract
Sources: Purchase and Sale Agreement
Post-Closing Adjustment to the Purchase Price. (a) Within sixty (60) After the Closing, subject to the following provisions of this Section 2.8, the Purchase Price as determined at the Effective Date by the Parties may be further adjusted based on the Statement of Assets Acquired, as of the Effective Date, as audited by G▇▇▇▇ ▇▇▇▇▇▇▇▇ at the expense of the Buyer and completed within ninety days subsequent to following the Closing Date, Buyer shall prepare in accordance . In connection with GAAP and the Estimated Closing Balance Sheet and deliver to Seller a consolidated balance sheet preparation of the Business as audited Statement of Assets Acquired, G▇▇▇▇ ▇▇▇▇▇▇▇▇ shall observe the close of business on the Closing Date (the "Closing Balance Sheet")accounting rules and principles set forth in Section 2.5 above. Upon completion of the Closing Balance SheetIn this regard, Buyer shall determine the any post-closing cash Closing adjustment or audit will not question or consider the fifty percent (50%) reserve percentage for Trade Accounts Receivable of Section 2.5 or the "Cash Adjustment")$497,000 reserve for inventory specified in Section 2.5, which Cash Adjustment and those reserves will apply for purposes of this Section 2.8. Unless disputed by Sellers, once the Statement of Assets Acquired has been audited, the final Purchase Price shall be equal to the difference between the Working Capital of the Business as set forth on the Closing Balance Sheet and $11 milliondetermined. If the Working Capital Sellers disagree with the final Purchase Price as so determined, then they may within ten Business Days deliver a written objection thereto (a “Dispute Notice”), and the Buyer and the Sellers shall jointly retain an accounting firm other than G▇▇▇▇ ▇▇▇▇▇▇▇▇ to calculate the final Purchase Price, whose determination of the Business as set forth on the Closing Balance Sheet is less than $11 million, Seller shall pay to Buyer an amount equal to the Cash Adjustment. If the Working Capital of the Business as set forth on the Closing Balance Sheet is greater than $11 million, Buyer shall pay to Seller an amount equal to the Cash Adjustment. Notwithstanding the foregoing, neither party shall (i) be required to pay a Cash Adjustment under this Section 2.3 unless such Cash Adjustment exceeds $100,000, in which case the applicable party shall pay only such portion of the Cash Adjustment that exceeds $100,000, and (ii) be required, in any event, to pay a Cash Adjustment under this Section 2.3 that exceeds $900,000. Concurrently with Buyer's delivery to Seller of the Closing Balance Sheet, Buyer shall deliver to Seller a reasonably detailed calculation of the Cash Adjustment along with the basis for such calculations. If Seller does not object to the amount of the Cash Adjustment within thirty (30) days of receipt thereof, such Cash Adjustment same shall be final and binding and Seller shall pay to Buyeron the parties absent manifest error. In the event such an additional accounting firm is retained, or Buyer shall pay to Seller, as the case may be, no later than the fifth (5th) business day after the thirtieth (30th) day following receipt half of the calculation cost of retaining such additional accounting firm shall be paid by the Sellers and the other half shall be paid by the Buyer. Failure of the Cash Adjustment an amount in cash equal Sellers to provide a timely Dispute Notice shall constitute waiver of the Sellers’ right to dispute such post-Closing adjustment to the Cash AdjustmentEstimated Purchase Price and shall allow the Buyer to make a drawing on the Escrowed Funds as contemplated by the Escrow Agreement. The Purchase Price as determined under this Section 2.8 shall be the final Purchase Price; provided, however, that if anyno adjustments to the Purchase Price determined as of the Closing Date in the manner contemplated by Section 2.6 or 2.7 shall have been made and no adjustment is made under this Section 2.8, then such Purchase Price calculated under Section 2.4 will be the final Purchase Price.
(b) If Seller objects For each dollar that the net value of the Acquired Assets shown on the final Statement of Assets Acquired shall exceed the Purchase Price determined as of the Closing Date, the final Purchase Price shall be increased by one dollar, and for each dollar that net value of the Acquired Assets shown on the final Statement of Assets Acquired shall be less than the Purchase Price determined as of the Closing Date, the Final Purchase Price shall be decreased by one dollar. Any addition to the Cash Adjustment, if any, it shall notify Purchase Price will be paid by the Buyer in writing within thirty ten Business Days and, subject to the following sentence, any decrease to the Purchase Price will be paid promptly from the Escrowed Proceeds. In the event of a decrease to the Purchase Price that results from: (30i) days following receipt thereof, setting an excess of assets on the books of Southern Saw as of the Effective Date over the correct assets on the books of Southern Saw as of the Effective Date (as determined under the procedure set forth in specific detail subsection (a)), (ii) an excess of the basis for its objection correct Assumed Liabilities of Southern Saw as of the Effective Date (as determined under the procedure set forth in subsection (a)) over the Assumed Liabilities as reported on the books of Southern Saw on the Effective Date; or (iii) a combination of (i) and its proposal for any adjustments (ii), then Sellers shall pay the excess assets amount, the deficient liability amount, or the combination of the excess asset amount and the deficient liability amount to the Buyer directly without payment from the Escrow Proceeds.
(c) In addition to the adjustments under Section 2.8(a) and (b) above, the Parties also shall compare a new reconciliation of Cash Adjustment. Buyer In and Seller shall seek in good faith to reach agreement Cash Out during the Stub Period as to any such proposed adjustment or that no such adjustment is necessary within thirty (30contemplated by Section 2.6(b) days following Buyer's receipt of written notice of Seller's objectionthis Agreement. If agreement is reached in writing within such period as to all proposed further adjustments, or that no adjustments are necessary, the parties shall make such adjustments, if any, and the Cash Adjustment shall be based thereon. If Buyer and Seller Parties are unable to reach agreement within thirty (30) days following Buyer's receipt agree on such reconciliation of written notice of Seller's objectionCash In and Cash Out during the Stub Period, then a "Big-4" independent they shall refer the matter for resolution to the additional accounting firm as agreed upon by Buyer and Seller (the "Third Party Accounting Firm"referenced in Section 2.8(a) above, whose reconciliation shall be engaged final and binding in the absence of manifest error. If such new reconciliation shall show an overpayment or an underpayment pursuant to review the proposed Cash Adjustment and, to the extent necessary, Section 2.6(b) at the Closing Balance SheetDate, and such Third Party Accounting Firm shall make a determination as to the resolution of then any adjustments necessary to cause the Cash Adjustment to have been properly prepared in accordance with this Agreement. All such resolutions shall relate only to such matters as are still in dispute and shall represent either agreement with the position taken by Buyer or Seller or a compromise between such positions. The determination of the Third Party Accounting Firm shall be delivered as soon as practicable following selection of the Third Party Accounting Firm and shall be final, conclusive and binding upon the parties. Thereafter, Seller shall pay to Buyer, or Buyer shall pay to Seller, as the case may be, not later than five (5) business days following the determination of adjustments amount payable by the Third Party Accounting Firm, an amount in cash equal to the Cash Adjustment, if any, as determined Buyer will be paid by the Third Party Accounting Firm. All fees Buyer in ten Business Days and expenses of the Third Party Accounting Firm shall be borne pro rata by Buyer and Seller in proportion to the allocation of the dollar any amount of changes made payable by the Third Party Accounting FirmSellers will be paid promptly from the Escrowed Proceeds.
Appears in 1 contract
Post-Closing Adjustment to the Purchase Price. (a) Within sixty (60) days subsequent to the Closing Date, Buyer shall prepare in accordance with GAAP and the Estimated Closing Balance Sheet and deliver to Seller a consolidated balance sheet Determination of the Business as of the close of business on the Closing Date (the "Closing Balance Sheet")Actual Company Revenues. Upon completion of the Closing Balance Sheet, Buyer shall determine the post-closing cash adjustment (the "Cash Adjustment"), which Cash Adjustment shall be equal to the difference between the Working Capital of the Business as set forth on the Closing Balance Sheet and $11 million. If the Working Capital of the Business as set forth on the Closing Balance Sheet is less than $11 million, Seller shall pay to Buyer an amount equal to the Cash Adjustment. If the Working Capital of the Business as set forth on the Closing Balance Sheet is greater than $11 million, Buyer shall pay to Seller an amount equal to the Cash Adjustment. Notwithstanding the foregoing, neither party shall ----------------------------------------
(i) be required to pay a Cash Adjustment under this Section 2.3 unless such Cash Adjustment exceeds $100,000As soon as practicable but no later than February 28, in which case the applicable party shall pay only such portion of the Cash Adjustment that exceeds $100,000, and (ii) be required, in any event, to pay a Cash Adjustment under this Section 2.3 that exceeds $900,000. Concurrently with Buyer's delivery to Seller of the Closing Balance Sheet2001, Buyer shall deliver to Seller a reasonably detailed calculation statement of the Cash Adjustment along Actual Company Revenues (the "Revenue Statement"), which will be determined in accordance with GAAP ----------------- applied on a consistent basis, but applied to the basis for such calculationsCompany as if it were a stand alone entity, which Revenue Statement shall be calculated and audited by Buyer's certified public accountants. If Seller does not object to determines in good faith that the amount of the Cash Adjustment Actual Company Revenues as so computed on the Revenue Statement is inaccurate, Seller shall have thirty (30) days following its receipt of the Revenue Statement in which to deliver written notice of such disagreement to Buyer. Such notice shall (i) set forth the Seller's determination of Actual Company Revenues and (ii) specify in reasonable detail the nature of Seller's basis for its disagreement with Buyer's calculation. Seller's failure to give written notice to Buyer within the thirty (30) day period shall constitute acceptance of the amount of Actual Company Revenues as set forth on the Revenue Statement, and in such case the Revenue Statement shall become the "Final Statement."
(ii) If Buyer and Seller resolve their disagreement in the determination of Actual Company Revenues within thirty (30) days of receipt thereof, such Cash Adjustment shall be final and binding and Seller shall pay to Buyer, or Buyer shall pay to Seller, as the case may be, no later than the fifth (5th) business day after the thirtieth (30th) day following receipt of the calculation of the Cash Adjustment an amount in cash equal to the Cash Adjustment, if any.
(b) If Seller objects to the Cash Adjustment, if any, it shall notify Buyer in writing within thirty (30) days following receipt thereof, setting forth in specific detail the basis for its objection and its proposal for any adjustments to the Cash Adjustment. Buyer and Seller shall seek in good faith to reach agreement as to any such proposed adjustment or that no such adjustment is necessary within thirty (30) days following Buyer's receipt of written notice of Seller's objection. If such disagreement, then Buyer and Seller shall set forth such agreement is reached in writing within such period as to all proposed further adjustments, or that no adjustments are necessary, the parties shall make such adjustments, if anywriting, and in such case such agreement shall become the Cash Adjustment shall be based thereon. "Final Statement."
(iii) If Buyer and Seller are unable to reach agreement resolve their disagreement in the determination of Actual Company Revenues within thirty (30) days following after Buyer's receipt of written notice of Seller's objectionsuch disagreement, then a "Big-4" independent accounting firm as agreed upon by Buyer and Seller will refer the dispute to an accounting firm of national recognition mutually acceptable to Buyer and Seller, and not then representing Buyer, Parent, Seller or the Company (the "Third Party Accounting FirmIndependent Accountant") shall be engaged to review the proposed Cash Adjustment and, to the extent necessary, the Closing Balance Sheet, and such Third Party Accounting Firm ). The Independent ---------------------- Accountant shall make a determination as of Actual Company Revenues, which shall be set forth in writing and furnished to Buyer and Seller, which determination shall be conclusive and binding. In such case, the resolution of any adjustments necessary to cause the Cash Adjustment to have been properly prepared in accordance with this Agreement. All such resolutions shall relate only to such matters as are still in dispute and shall represent either agreement with the position taken by Buyer or Seller or a compromise between such positions. The Independent Accountant's final written determination of Actual Company Revenues shall become the Third Party Accounting Firm shall be delivered as soon as practicable following selection "Final Statement."
(iv) Fifty percent (50%) of the Third Party Accounting Firm and shall be final, conclusive and binding upon the parties. Thereafter, Seller shall pay to Buyer, or Buyer shall pay to Seller, as the case may be, not later than five (5) business days following the determination of adjustments by the Third Party Accounting Firm, an amount in cash equal to the Cash Adjustment, if any, as determined by the Third Party Accounting Firm. All fees and expenses of the Third Party Accounting Firm Independent Accountant shall be borne pro rata paid by Buyer and Seller in proportion to the allocation fifty percent (50%) of the dollar amount fees and expenses of changes made the Independent Accountant shall be paid by Seller; provided, however, that the Third Party Accounting Firmnon-prevailing party shall reimburse the prevailing -------- ------- party for its portion of such fees and expenses. For purposes of the foregoing, Seller shall be the prevailing party if the Independent Accountant's determination of Actual Company Revenues exceeds by 10% or more the Actual Company Revenues as set forth in the Revenue Statement and Buyer shall be the prevailing party if the Independent Accountant's determination of Actual Company Revenues is less than 10% higher than the Actual Company Revenues as set forth in the Revenue Statement.
Appears in 1 contract
Post-Closing Adjustment to the Purchase Price. (a) Within On or before the date that is sixty (60) days subsequent to after the Closing Date, Buyer Seller shall prepare in accordance with GAAP and the Estimated Closing Balance Sheet and deliver to Seller Purchaser a consolidated balance sheet revised Closing Statement setting forth the Purchase Price adjustments and the Adjusted Purchase Price. To the extent reasonably required by Seller, Purchaser shall assist in the preparation of the Business revised Closing Statement. Seller shall provide to Purchaser such data and information as Purchaser may reasonably request supporting the amounts reflected on the revised Closing Statement in order to permit Purchaser to perform or cause to be performed an audit of the close of business revised Closing Statement at Purchaser's expense. The revised Closing Statement shall become final and binding upon the parties on the Closing Date date (the "Closing Balance SheetFinal Settlement Date"). Upon completion of the Closing Balance Sheet, Buyer shall determine the post-closing cash adjustment (the "Cash Adjustment"), which Cash Adjustment shall be equal to the difference between the Working Capital of the Business as set forth on the Closing Balance Sheet and $11 million. If the Working Capital of the Business as set forth on the Closing Balance Sheet ) that is less than $11 million, Seller shall pay to Buyer an amount equal to the Cash Adjustment. If the Working Capital of the Business as set forth on the Closing Balance Sheet is greater than $11 million, Buyer shall pay to Seller an amount equal to the Cash Adjustment. Notwithstanding the foregoing, neither party shall (i) be required to pay a Cash Adjustment under this Section 2.3 unless such Cash Adjustment exceeds $100,000, in which case the applicable party shall pay only such portion of the Cash Adjustment that exceeds $100,000, and (ii) be required, in any event, to pay a Cash Adjustment under this Section 2.3 that exceeds $900,000. Concurrently with Buyer's delivery to Seller of the Closing Balance Sheet, Buyer shall deliver to Seller a reasonably detailed calculation of the Cash Adjustment along with the basis for such calculations. If Seller does not object to the amount of the Cash Adjustment within thirty (30) days of receipt thereof, such Cash Adjustment shall be final and binding and Seller shall pay to Buyer, or Buyer shall pay to Seller, as the case may be, no later than the fifth (5th) business day after the thirtieth (30th) day following receipt of the calculation of the Cash Adjustment an amount in cash equal to the Cash Adjustment, if any.
(b) If Seller objects to the Cash Adjustment, if any, it shall notify Buyer in writing within thirty (30) days following receipt thereof, setting forth thereof by Purchaser unless Purchaser gives written notice of its disagreement ("Notice of Disagreement") to Seller prior to such date. Any Notice of Disagreement shall specify in specific detail the dollar amount, nature, and basis for its objection of any disagreement so asserted. If a Notice of Disagreement is received by Seller in a timely manner, then Seller and its proposal for any adjustments to the Cash Adjustment. Buyer and Seller Purchaser shall seek diligently work in good faith to reach agreement as on a final Closing Statement. If the Parties fail to any such proposed adjustment or that no such adjustment is necessary agree on the final Closing Statement within thirty (30) days following Buyer's receipt after the date of written notice the Notice of Seller's objection. If agreement is reached in writing within such period as to all proposed further adjustments, or that no adjustments are necessaryDisagreement, the parties matter may be submitted by either party to arbitration under Section 9.9. The Closing Statement shall make such adjustments, if anybecome final and binding on the Parties on, and the Cash Adjustment Final Settlement Date shall be based thereonbe, the earlier of (i) the date upon which Seller and Purchaser agree in writing with respect to all matters specified in the Notice of Disagreement or (ii) the date on which the arbitrators' final decision is issued under Section 9.9.
(b) If the Adjusted Purchase Price, as finally determined pursuant to this Section 2.5, is less than the Estimated Adjusted Purchase Price delivered pursuant to Section 2.4, then Seller will pay to Purchaser, within two business days, by wire transfer of immediately available funds, the amount of such shortfall. If Buyer and Seller are unable the Adjusted Purchase Price, as finally determined pursuant to reach agreement within thirty (30) days following Buyer's receipt of written notice of Seller's objectionthis Section 2.5, is greater than the Estimated Adjusted Purchase Price delivered pursuant to Section 2.4, then a "Big-4" independent accounting firm as agreed upon by Buyer and Seller (the "Third Party Accounting Firm") shall be engaged to review the proposed Cash Adjustment and, to the extent necessary, the Closing Balance Sheet, and such Third Party Accounting Firm shall make a determination as to the resolution of any adjustments necessary to cause the Cash Adjustment to have been properly prepared in accordance with this Agreement. All such resolutions shall relate only to such matters as are still in dispute and shall represent either agreement with the position taken by Buyer or Seller or a compromise between such positions. The determination of the Third Party Accounting Firm shall be delivered as soon as practicable following selection of the Third Party Accounting Firm and shall be final, conclusive and binding upon the parties. Thereafter, Seller shall pay to Buyer, or Buyer shall Purchaser will pay to Seller, as within two business days, by wire transfer of immediately available funds, the case may be, not later than five (5) business days following the determination amount of adjustments by the Third Party Accounting Firm, such excess. Such payment shall be deemed an amount in cash equal to the Cash Adjustment, if any, as determined by the Third Party Accounting Firm. All fees and expenses adjustment of the Third Party Accounting Firm shall be borne pro rata by Buyer and Seller Purchase Price in proportion to the allocation of the dollar amount of changes made by the Third Party Accounting FirmSection 2.2.
Appears in 1 contract
Sources: Purchase and Sale Agreement (Northern Border Partners Lp)
Post-Closing Adjustment to the Purchase Price. (a) Within sixty No later than seventy five (6075) days subsequent to following the Closing Date, Buyer shall prepare in accordance with GAAP and the Estimated Closing Balance Sheet and deliver to Seller the Final Balance Sheet and a consolidated balance sheet of written statement (such statement, as it may be adjusted pursuant to this Section 2.4, the Business “Final Closing Statement”) setting forth the Final Cash, the Final Change in Working Capital, the Final Outstanding Checks, the Closing Indebtedness and the Company Transaction Expenses, each as of the close of business 11:59 p.m. on the Closing Date (and the "calculation of such amounts. The Final Closing Balance Sheet"). Upon completion of the Closing Balance Sheet, Buyer Statement shall be used to determine the post-closing cash adjustment “Final Purchase Price”, by adjusting the Base Amount (without application of any adjustments to the "Cash Adjustment"), which Cash Adjustment Base Amount pursuant to Section 2.3) as follows:
(i) the Base Amount shall be increased on a dollar-for-dollar basis by the following:
(A) an amount equal to the difference between Final Change in Working Capital, if such amount is positive; and
(B) an amount equal to the Final Cash; and
(ii) the Base Amount shall be decreased on a dollar-for-dollar basis by the following:
(A) an amount equal to the Final Change in Working Capital Capital, if such amount is negative; and
(B) an amount equal to the Final Outstanding Checks, the Closing Indebtedness and the Company Transaction Expenses.
(b) Within thirty (30) days following delivery of the Business as set forth on the Closing Final Balance Sheet and $11 millionthe Final Closing Statement to Seller, Seller shall notify Buyer (i) that Seller accepts the Final Balance Sheet and the Final Closing Statement or (ii) that Seller objects (an “Objection Notice”) to an item or items reflected thereon. Such Objection Notice, if any, shall set forth Seller’s objections to the Final Balance Sheet and the Final Closing Statement in reasonable detail. If Buyer and Seller are unable to resolve the issues in dispute within thirty (30) days after delivery of the Objection Notice, such disputed issues will be submitted for resolution to the Chicago office of PriceWaterhouseCoopers LLP (the “Neutral Auditor”). The Neutral Auditor shall be engaged within forty-five (45) days after delivery of the Objection Notice. If either Party fails to take action with respect to any matter referred to in the previous sentences of this Section 2.4(b), then the other Party may engage the Neutral Auditor on behalf of both Parties. The Neutral Auditor shall make such review and examination of the relevant facts and documents as the Neutral Auditor deems appropriate, and shall permit each of Buyer and Seller to make a written presentation of their respective positions; provided, however, that the Neutral Auditor shall require all facts, documents, and written presentations from Buyer and Seller to be completely submitted within thirty (30) days after the Neutral Auditor has been engaged. Within thirty (30) days after the date required for submission of such facts, documents, and written presentations, and regardless of whether such submissions shall have been made, the Neutral Auditor shall resolve all disputed items in writing and shall prepare and deliver its decision, which shall be final and binding upon the Parties without further recourse or collateral attack and, as to each disputed matter, which shall accept (x) either Buyer’s or Seller’s position on each disputed matter set forth in the Objection Notice or (y) the stipulated position of Buyer and Seller with respect to any matter that prior to such stipulation was disputed. The costs and expenses of the Neutral Auditor shall be borne by the Party who is the least successful in such process, which shall be determined by comparing (A) the position asserted by each Party on all disputed matters taken together to (B) the final decision of the Neutral Auditor on all disputed matters taken together. For purposes of the immediately preceding sentence, the “disputed matters” shall be all matters raised in the Objection Notice, and the “position asserted” by each of Buyer and Seller shall be determined by reference to their respective written presentations submitted to the Neutral Auditor pursuant to this Section 2.4(b). The Neutral Auditor shall not preside over any hearing of the Parties nor permit the Parties to make any oral arguments to the Neutral Auditor.
(c) As used in this Agreement, “Final Adjustment Amount” means, (i) if Seller fails to deliver an Objection Notice or accepts the Final Balance Sheet and the Final Closing Statement in accordance with Section 2.4(b), then an amount (which may be a positive or a negative number) equal to (x) the Final Purchase Price, calculated in accordance with the Final Closing Statement (without adjustment), minus (y) the Estimated Purchase Price, or (ii) if the amount of the Final Purchase Price is resolved by Buyer and Seller or by submission of any disputed matters to the Neutral Auditor in accordance with Section 2.4(b), then an amount (which may be a positive or a negative number) equal to (x) the Final Purchase Price, as so resolved, minus (y) the Estimated Purchase Price. If the Working Capital Final Adjustment Amount is a positive number, then Buyer shall promptly, but in any event within five (5) Business Days after the final and binding determination of the Business as set forth on Final Purchase Price in accordance with Section 2.4(b), pay to Seller an amount equal to the Closing Balance Sheet Final Adjustment Amount. If the Final Adjustment Amount is less than $11 milliona negative number, then Seller shall promptly, but in any event within five (5) Business Days after the final and binding determination of the Final Purchase Price in accordance with Section 2.4(b), pay to Buyer an amount equal to the Cash AdjustmentFinal Adjustment Amount (or, at Buyer’s or Seller’s option, such payment may be made by way of a disbursement from the Escrow Amount). If the Working Capital of the Business as set forth on the Closing Balance Sheet is greater than $11 million, Buyer shall pay All amounts to Seller an amount equal be paid pursuant to the Cash Adjustment. Notwithstanding the foregoing, neither party shall (i) be required to pay a Cash Adjustment under this Section 2.3 unless such Cash Adjustment exceeds $100,000, in which case the applicable party shall pay only such portion of the Cash Adjustment that exceeds $100,000, and (ii2.4(c) be required, in any event, to pay a Cash Adjustment under this Section 2.3 that exceeds $900,000. Concurrently with Buyer's delivery to Seller of the Closing Balance Sheet, Buyer shall deliver to Seller a reasonably detailed calculation of the Cash Adjustment along with the basis for such calculations. If Seller does not object to the amount of the Cash Adjustment within thirty (30) days of receipt thereof, such Cash Adjustment shall be made by wire transfer of immediately available funds to such bank account as the receiving Party shall specify within three (3) Business Days after the final and binding and Seller shall pay to Buyer, or Buyer shall pay to Seller, as the case may be, no later than the fifth (5th) business day after the thirtieth (30th) day following receipt determination of the calculation of the Cash Adjustment an amount in cash equal to the Cash Adjustment, if any.
(b) If Seller objects to the Cash Adjustment, if any, it shall notify Buyer in writing within thirty (30) days following receipt thereof, setting forth in specific detail the basis for its objection and its proposal for any adjustments to the Cash Adjustment. Buyer and Seller shall seek in good faith to reach agreement as to any such proposed adjustment or that no such adjustment is necessary within thirty (30) days following Buyer's receipt of written notice of Seller's objection. If agreement is reached in writing within such period as to all proposed further adjustments, or that no adjustments are necessary, the parties shall make such adjustments, if any, and the Cash Adjustment shall be based thereon. If Buyer and Seller are unable to reach agreement within thirty (30) days following Buyer's receipt of written notice of Seller's objection, then a "Big-4" independent accounting firm as agreed upon by Buyer and Seller (the "Third Party Accounting Firm") shall be engaged to review the proposed Cash Adjustment and, to the extent necessary, the Closing Balance Sheet, and such Third Party Accounting Firm shall make a determination as to the resolution of any adjustments necessary to cause the Cash Adjustment to have been properly prepared Final Purchase Price in accordance with this Agreement. All such resolutions shall relate only to such matters as are still in dispute and shall represent either agreement with the position taken by Buyer or Seller or a compromise between such positions. The determination of the Third Party Accounting Firm shall be delivered as soon as practicable following selection of the Third Party Accounting Firm and shall be final, conclusive and binding upon the parties. Thereafter, Seller shall pay to Buyer, or Buyer shall pay to Seller, as the case may be, not later than five (5) business days following the determination of adjustments by the Third Party Accounting Firm, an amount in cash equal to the Cash Adjustment, if any, as determined by the Third Party Accounting Firm. All fees and expenses of the Third Party Accounting Firm shall be borne pro rata by Buyer and Seller in proportion to the allocation of the dollar amount of changes made by the Third Party Accounting FirmSection 2.4(b).
Appears in 1 contract
Sources: Stock Purchase Agreement (Global Power Equipment Group Inc.)
Post-Closing Adjustment to the Purchase Price. (a) Within sixty (60) days subsequent to 1.5.1 As soon as reasonably practicable after the Closing Date, Buyer shall the Purchaser will prepare in accordance with GAAP and the Estimated Closing Balance Sheet and deliver to Seller a consolidated balance sheet of the Business as of the close of business on the Closing Date (the "Closing Balance Sheet") reflecting the assets, liabilities and net worth of the Company as of the Closing Date. The Closing Balance Sheet shall be prepared in accordance with generally accepted accounting principles and otherwise in a manner consistent with that used by the Company in the preparation of the January 31 Balance Sheet (as hereinafter defined). Upon completion The Closing Balance Sheet will be submitted by the Purchaser to the Sellers who will, within 15 business days after receipt of the Closing Balance Sheet, Buyer shall determine notify the post-closing cash adjustment Purchaser in writing (the "Cash AdjustmentException Notice")) of any exceptions which they take thereto (with such exceptions specified in writing in reasonable detail, which Cash Adjustment shall be equal to the difference between the Working Capital including a quantification of the Business as set forth on consequences of each such exception). If no Exception Notice has been received by the Purchaser within such 15 day period, the Closing Balance Sheet shall be final and $11 millionbinding on all parties to this Agreement. If an Exception Notice has been timely given to the Working Capital Purchaser by the Sellers, the Purchaser and the Sellers shall attempt for a period of not exceeding 30 days after receipt of the Business as set forth on Exception Notice to reconcile their differences. Absent such reconciliation, each unresolved exception to the Closing Balance Sheet is less than $11 million, Seller shall pay be submitted in writing for final resolution to Buyer an amount equal to a nationally recognized independent public accounting firm (the Cash Adjustment"Arbiter") jointly selected by the Purchaser and the Sellers. If the Working Capital Purchaser and the Sellers are unable to agree by not later than the end of the Business foregoing 30-day period on the identity of an Arbiter, then it shall be Arth▇▇ Ande▇▇▇▇ & ▇o., or, if that firm refuses or is unable to serve, Ernst & Young. Each of the parties shall be entitled to make a written submission concerning each unresolved exception to the Arbiter within 15 business days of the Arbiter's acceptance of the engagement. The Arbiter shall review such written submissions and the parties shall submit such further information as set forth on the Arbiter may request, including written and oral testimony. The decision of the Arbiter as to whether any changes should be made in the Closing Balance Sheet is greater than $11 millionshall be rendered in writing within 30 days after the end of such 15 day period for written submissions to it, Buyer and such decision shall be final and binding on all parties to this Agreement, and may be enforced by court proceedings. The Purchaser and the Sellers shall each pay to Seller an amount equal to the Cash Adjustment. Notwithstanding the foregoing, neither party shall (i) be required to pay a Cash Adjustment under this Section 2.3 unless such Cash Adjustment exceeds $100,000, in which case the applicable party shall pay only such portion one-half of the Cash Adjustment that exceeds $100,000, fee and (ii) be required, in any event, to pay a Cash Adjustment under this Section 2.3 that exceeds $900,000. Concurrently with Buyer's delivery to Seller expenses of the Arbiter.
1.5.2 If the Closing Balance Sheet, Buyer shall deliver to Seller a reasonably detailed calculation as it may be changed by agreement of the Cash Adjustment along with parties or determination of the basis Arbiter, shows that the Company had a net book value (assets less liabilities) at the Closing Date of less than $9,600,000, the Purchase Price shall be reduced, dollar for such calculations. If Seller does not object to dollar, by the amount of the Cash Adjustment within thirty (30) days of receipt thereofdeficiency, such Cash Adjustment shall be final and binding and Seller shall pay which amount the Sellers agree to Buyer, or Buyer shall pay to Seller, as the case may be, no later than the fifth (5th) business day after the thirtieth (30th) day following receipt of the calculation of the Cash Adjustment an amount in cash equal promptly remit pro rata to the Cash Adjustment, if anyPurchaser.
(b) If Seller objects to the Cash Adjustment, if any, it shall notify Buyer in writing within thirty (30) days following receipt thereof, setting forth in specific detail the basis for its objection and its proposal for any adjustments to the Cash Adjustment. Buyer and Seller shall seek in good faith to reach agreement as to any such proposed adjustment or that no such adjustment is necessary within thirty (30) days following Buyer's receipt of written notice of Seller's objection. If agreement is reached in writing within such period as to all proposed further adjustments, or that no adjustments are necessary, the parties shall make such adjustments, if any, and the Cash Adjustment shall be based thereon. If Buyer and Seller are unable to reach agreement within thirty (30) days following Buyer's receipt of written notice of Seller's objection, then a "Big-4" independent accounting firm as agreed upon by Buyer and Seller (the "Third Party Accounting Firm") shall be engaged to review the proposed Cash Adjustment and, to the extent necessary, the Closing Balance Sheet, and such Third Party Accounting Firm shall make a determination as to the resolution of any adjustments necessary to cause the Cash Adjustment to have been properly prepared in accordance with this Agreement. All such resolutions shall relate only to such matters as are still in dispute and shall represent either agreement with the position taken by Buyer or Seller or a compromise between such positions. The determination of the Third Party Accounting Firm shall be delivered as soon as practicable following selection of the Third Party Accounting Firm and shall be final, conclusive and binding upon the parties. Thereafter, Seller shall pay to Buyer, or Buyer shall pay to Seller, as the case may be, not later than five (5) business days following the determination of adjustments by the Third Party Accounting Firm, an amount in cash equal to the Cash Adjustment, if any, as determined by the Third Party Accounting Firm. All fees and expenses of the Third Party Accounting Firm shall be borne pro rata by Buyer and Seller in proportion to the allocation of the dollar amount of changes made by the Third Party Accounting Firm.
Appears in 1 contract
Sources: Stock Purchase Agreement (Griffith Micro Science International Inc)
Post-Closing Adjustment to the Purchase Price. (a) Within sixty Revised Closing Statement. On or before the date that is ninety (6090) days subsequent to after the Closing Date, Buyer Seller shall prepare in accordance with GAAP and the Estimated Closing Balance Sheet and deliver to Seller Buyer a consolidated balance sheet revised Closing Statement setting forth the Purchase Price adjustments and Seller’s calculation of such amount. To the Business as of the close of business on the Closing Date (the "Closing Balance Sheet"). Upon completion of the Closing Balance Sheetextent reasonably required by Seller, Buyer shall determine assist in the post-closing cash adjustment (the "Cash Adjustment"), which Cash Adjustment shall be equal to the difference between the Working Capital preparation of the Business revised Closing Statement. Seller shall provide to Buyer such data and information and access to Seller’s personnel as set forth Buyer may reasonably request supporting the amounts reflected on the revised Closing Balance Sheet and $11 millionStatement to permit Buyer to perform or cause to be performed an audit at Buyer’s expense. If the Working Capital of the Business as set forth on the The revised Closing Balance Sheet is less than $11 million, Seller Statement shall pay to Buyer an amount equal to the Cash Adjustment. If the Working Capital of the Business as set forth on the Closing Balance Sheet is greater than $11 million, Buyer shall pay to Seller an amount equal to the Cash Adjustment. Notwithstanding the foregoing, neither party shall (i) be required to pay a Cash Adjustment under this Section 2.3 unless such Cash Adjustment exceeds $100,000, in which case the applicable party shall pay only such portion of the Cash Adjustment that exceeds $100,000, and (ii) be required, in any event, to pay a Cash Adjustment under this Section 2.3 that exceeds $900,000. Concurrently with Buyer's delivery to Seller of the Closing Balance Sheet, Buyer shall deliver to Seller a reasonably detailed calculation of the Cash Adjustment along with the basis for such calculations. If Seller does not object to the amount of the Cash Adjustment within thirty (30) days of receipt thereof, such Cash Adjustment shall be become final and binding and Seller shall pay to Buyer, or Buyer shall pay to Seller, as upon the case may be, no later than Parties on the fifth date (5ththe “Final Settlement Date”) business day after the thirtieth (30th) day following receipt of the calculation of the Cash Adjustment an amount in cash equal to the Cash Adjustment, if any.
(b) If Seller objects to the Cash Adjustment, if any, it shall notify Buyer in writing within that is thirty (30) days following receipt thereof, setting forth in specific detail the basis for its objection and its proposal for any adjustments to the Cash Adjustment. thereof by Buyer and Seller shall seek in good faith to reach agreement as to any such proposed adjustment or that no such adjustment is necessary within thirty (30) days following Buyer's receipt of unless Buyer gives written notice of Seller's objectionits disagreement with the revised Closing Statement (“Notice of Disagreement”) to Seller prior to such date. Any Notice of Disagreement shall specify in detail the dollar amount, nature, and basis of any disagreement so asserted. If agreement a Notice of Disagreement is reached received by Seller in writing within such period a timely manner, then the Closing Statement (as to all proposed further adjustments, or that no adjustments are necessary, revised in accordance with paragraph (b) below) shall become final and binding on the parties shall make such adjustments, if anyParties on, and the Cash Adjustment Final Settlement Date shall be based thereon. If Buyer and Seller are unable to reach agreement within thirty (30) days following Buyer's receipt of written notice of Seller's objection, then a "Big-4" independent accounting firm as agreed upon by Buyer and Seller (the "Third Party Accounting Firm") shall be engaged to review the proposed Cash Adjustment and, to the extent necessarybe, the earlier of (i) the date upon which Seller and Buyer agree in writing with respect to all matters specified in the Notice of Disagreement or (ii) the date upon which the Arbitrator’s Closing Balance Sheet, and such Third Party Accounting Firm shall make a determination Statement (as to the resolution of any adjustments necessary to cause the Cash Adjustment to have been properly prepared in accordance with this Agreement. All such resolutions shall relate only to such matters as are still in dispute and shall represent either agreement with the position taken by Buyer or Seller or a compromise between such positions. The determination of the Third Party Accounting Firm shall be delivered as soon as practicable following selection of the Third Party Accounting Firm and shall be final, conclusive and binding upon the parties. Thereafter, Seller shall pay to Buyer, or Buyer shall pay to Seller, as the case may be, not later than five (5hereinafter defined) business days following the determination of adjustments is issued by the Third Party Accounting Firm, an amount in cash equal to the Cash Adjustment, if any, Closing Statement Arbitrator (as determined by the Third Party Accounting Firm. All fees and expenses of the Third Party Accounting Firm shall be borne pro rata by Buyer and Seller in proportion to the allocation of the dollar amount of changes made by the Third Party Accounting Firmhereinafter defined).
Appears in 1 contract
Sources: Purchase and Sale Agreement
Post-Closing Adjustment to the Purchase Price. (a) Within sixty Not more than ninety (6090) days subsequent to after the Closing Date, Buyer shall prepare in accordance with GAAP and the Estimated Closing Balance Sheet and deliver to Seller the Sellers (or its Representative) a consolidated balance sheet of the Business as of the close of business on the Closing Date statement (the "Closing Balance SheetStatement"). Upon completion ) setting forth in reasonable detail Buyer's calculation of (i) the actual amount of the Closing Balance Sheet, Buyer shall determine the post-closing cash adjustment Seller Transaction Expenses (the "Cash AdjustmentProposed Closing Seller Transaction Expenses"), which (ii) the actual amount of the Closing Working Capital (the "Proposed Closing Working Capital"), and (iii) the Cash Adjustment Proceeds calculated using the Proposed Closing Seller Transaction Expenses and the Proposed Closing Working Capital. The Closing Statement shall be equal become Final and Binding on the Parties on the Final Resolution Date.
(b) During the thirty (30) days after delivery of the Closing Statement, Buyer will provide the Sellers (or its Representative) and its accountants reasonable access, during normal business hours and upon reasonable notice, to review the financial books and records of Buyer, as well as to the difference between persons who prepared them and made the Working Capital calculations, to the extent related to the Closing Statement, solely to allow the Sellers' Representative to determine the accuracy of Buyer's calculation of the Business as items set forth on the Closing Balance Sheet Statement. Any information shared with the Sellers' Representative or their respective accountants or attorneys will be subject to Section 6.3, and $11 millionBuyer shall not have any obligation to provide information or access to information, materials or Persons if doing so could reasonably be expected to result in the waiver of any attorney client privilege or the disclosure of any Trade Secret or violate any Law or the terms of any applicable Contract to which Buyer or any of its Affiliates is a party. If the Working Capital Sellers' Representative disagrees with any of the Business as Buyer's calculations set forth on in the Closing Balance Sheet is less than $11 millionStatement, Seller shall pay to Buyer an amount equal to the Cash Adjustment. If the Working Capital of the Business as set forth on the Closing Balance Sheet is greater than $11 millionSellers' Representative may, Buyer shall pay to Seller an amount equal to the Cash Adjustment. Notwithstanding the foregoing, neither party shall (i) be required to pay a Cash Adjustment under this Section 2.3 unless such Cash Adjustment exceeds $100,000, in which case the applicable party shall pay only such portion of the Cash Adjustment that exceeds $100,000, and (ii) be required, in any event, to pay a Cash Adjustment under this Section 2.3 that exceeds $900,000. Concurrently with Buyer's delivery to Seller of the Closing Balance Sheet, Buyer shall deliver to Seller a reasonably detailed calculation of the Cash Adjustment along with the basis for such calculations. If Seller does not object to the amount of the Cash Adjustment within thirty (30) days after delivery of receipt thereofthe Closing Statement, deliver a written notice of its disagreement (a "Post-Closing Notice of Disagreement") to Buyer disagreeing with such calculations; provided, however, that such Post-Closing Notice of Disagreement shall include only objections based on whether (i) the amounts set forth on the Closing Statement were prepared in a manner consistent with the provisions of this Agreement, or (ii) there were mathematical errors in the computation of any amount set forth on the Closing Statement. Such Post-Closing Notice of Disagreement shall specify those items or amounts with which the Sellers' Representative disagrees, together with a reasonably detailed written explanation of the reasons for disagreement with each such item or amount, and shall set forth the Sellers' Representative's calculation, based on such objections, of the Closing Indebtedness, the Closing Seller Transaction Expenses or the Closing Working Capital, as applicable, and the Cash Adjustment Proceeds resulting therefrom. The Sellers' Representative and the Sellers shall be final deemed to have agreed with Buyer's calculation of all items and binding amounts contained in the Closing Statement to the extent that they are not set forth in a Post-Closing Notice of Disagreement. If Buyer does not receive a Post-Closing Notice of Disagreement from the Sellers' Representative within such thirty (30) day period, then the amounts set forth in the Closing Statement shall become Final and Seller shall pay Binding on the Parties.
(c) If a Post-Closing Notice of Disagreement is received by Buyer on or prior to Buyer, or Buyer shall pay to Seller, as the case may be, no later than the fifth (5th) business day after the thirtieth (30th) day following receipt Buyer's delivery of the calculation of the Cash Adjustment an amount in cash equal to the Cash AdjustmentClosing Statement, if any.
(b) If Seller objects to the Cash Adjustment, if any, it shall notify Buyer in writing within thirty (30) days following receipt thereof, setting forth in specific detail the basis for its objection and its proposal for any adjustments to the Cash Adjustment. then Buyer and Seller shall seek in good faith to reach agreement as to any such proposed adjustment or that no such adjustment is necessary within the Sellers' Representative shall, during the thirty (30) days following Buyer's receipt of written notice such Post-Closing Notice of Seller's objection. If agreement is reached Disagreement, seek to resolve any differences that they may have with respect to the matters specified in writing within such period as to all proposed further adjustments, or that no adjustments are necessary, the parties shall make such adjustments, if any, and the Cash Adjustment shall be based thereonPost-Closing Notice of Disagreement. If Buyer and Seller the Sellers' Representative are unable not able to reach agreement resolve their differences during such thirty (30) day period, then at the end of such period, Buyer and the Sellers' Representative shall promptly mutually engage and submit for Final and Binding resolution any and all matters related to such Post-Closing Notice of Disagreement that remain in dispute to an independent accounting firm of international standing and reputation which neither Buyer, nor the Company have had a material relationship in the past two years from the Post-Closing Notice of Disagreement (the "Accounting Firm"). Buyer, the Sellers and the Sellers' Representative shall make readily available to the Accounting Firm all relevant financial books and records, including any accountants' work papers (subject to the execution of any access letters that such accountants may require in connection with the review of such work papers) relating to the Closing Statement or the Post-Closing Notice of Disagreement. Buyer and the Sellers' Representative shall enter into a customary engagement letter with the Accounting Firm, which engagement letter shall explicitly provide that, in resolving the amounts in dispute, the Accounting Firm shall (i) consider only those items or amounts disputed by the Sellers' Representative in the Post-Closing Notice of Disagreement that remain in dispute; (ii) not assign a value to any item or amount in dispute greater than the greatest value for such item or amount assigned by the Sellers' Representative, on the one hand, or Buyer, on the other hand, or less than the smallest value for such item or amount assigned by the Sellers' Representative, on the one hand, or Buyer, on the other hand; and (iii) not be bound by any arbitration rules or procedures in connection with the resolution of the dispute under this Section 2.6. The Accounting Firm's determination will be based solely upon information presented by Buyer and the Sellers' Representative, and not on the basis of independent review. Buyer and the Sellers' Representative shall cause the Accounting Firm to deliver to Buyer and the Sellers' Representative as promptly as practicable (but in any event within thirty (30) days following Buyer's receipt of its retention) a written notice report setting forth its determination of Seller's objection, then a "Big-4" independent accounting firm as agreed upon by Buyer and Seller (the "Third Party Accounting Firm") shall be engaged to review the proposed Cash Adjustment and, to the extent necessaryamounts in dispute. Absent manifest error, the Closing Balance Sheet, and such Third Party written report prepared by the Accounting Firm shall make a be Final and Binding on the Parties and judgment upon the determination as set forth in such written report may be entered in any court of competent jurisdiction of the United States.
(d) Any engagement fees of the Accounting Firm shall initially be borne fifty percent (50%) by the Sellers and fifty percent (50%) by Buyer; provided, however, that the Accounting Firm will determine the allocation of the cost of its engagement based on the inverse proportion to the resolution manner in which such Person prevails on the items resolved by the Accounting Firm, which proportionate allocation shall be calculated on an aggregate basis based on the relative dollar values of any adjustments necessary to cause the Cash Adjustment to have been properly prepared in accordance with this Agreement. All such resolutions shall relate only to such matters as are still amounts in dispute and shall represent either agreement with be computed by the position taken by Buyer or Seller or a compromise between such positions. The Accounting Firm at the time that its determination of the Third Party items in dispute is rendered. For example, should the items in dispute total in amount to $1,000 and the Accounting Firm award $600 in favor of the Sellers' Representative's position, 60% of the costs and expenses of the Accounting Firm's review would be borne by Buyer and 40% would be borne by the Sellers. Except as provided in the preceding sentence, all other fees and expenses incurred in connection with the dispute resolution process set forth in this Section 2.6, including fees and expenses of attorneys and accountants, shall be delivered borne and paid by the Party incurring such expense.
(e) If the Cash Proceeds as soon as practicable following selection finally determined pursuant to this Section 2.6 are less than the Estimated Purchase Price (the absolute value of such difference, the Third Party Accounting Firm and shall be final"Closing Payment Shortfall Amount"), conclusive and binding upon the parties. Thereafter, Seller shall pay to Buyer, or Buyer shall pay to Seller, as the case may be, not later than then within five (5) business days following Business Days after the determination Final Resolution Date, at the Buyer's option (in its sole discretion), the Closing Payment Shortfall Amount shall be satisfied by (i) setting off against any amounts due and owing to any of adjustments the Sellers by Buyer or any of its Affiliates (including, without limitation, the Third Party Accounting FirmEscrow Amount), (ii) wire transfer of immediately available funds from the Sellers pro rata to the portion of the Purchase Price received by each Seller as set forth in Exhibit B to an account designated in writing by Buyer or (iii) any combination thereof.
(f) If the Cash Proceeds as finally determined pursuant to this Section 2.6 are greater than the Estimated Purchase Price (the absolute value of such difference, the "Closing Payment Excess Amount"), then within five (5) Business Days after the Final Resolution Date, Buyer Parties shall pay to the Sellers' Representative (for further distribution to the Sellers (pro rata to the portion of the Purchase Price received by each Seller as set forth in Exhibit B) an amount in cash equal to the Cash Adjustment, if any, as determined Closing Payment Excess Amount via wire transfer of immediately available funds to an account designated in writing by the Third Sellers' Representative.
(g) If the Cash Proceeds as finally determined pursuant to this Section 2.6 are equal to the Estimated Purchase Price, there will be no adjustment to the Cash Proceeds and no payment by one Party Accounting Firm. All fees and expenses of the Third Party Accounting Firm to any others shall occur pursuant to this Section 2.6.
(h) Any payments made pursuant to this Section 2.6 shall be borne pro rata by Buyer and Seller in proportion treated as an adjustment to the allocation of the dollar amount of changes made Purchase Price by the Third Party Accounting FirmParties for Tax purposes unless otherwise required by Law.
Appears in 1 contract
Post-Closing Adjustment to the Purchase Price. (a) Within sixty (60) days subsequent to the Closing Date, Buyer shall prepare in accordance with GAAP and the Estimated Closing Balance Sheet and deliver to Seller a consolidated balance sheet of the Business as of the close of business on the Closing Date (the "Closing Balance Sheet"). Upon completion of the Closing Balance Sheet, Buyer shall determine the post-closing cash adjustment (the "Cash Adjustment"), which Cash Adjustment shall be equal to the difference between the Working Capital of the Business as set forth on the Closing Balance Sheet and $11 million1,850,000. If the Working Capital of the Business as set forth on the Closing Balance Sheet is less than $11 million1,800,000, Seller Sellers shall pay to Buyer an amount equal to the Cash Adjustment; provided, however, that up to the first $300,000 of such Cash Adjustment, if any, shall be paid to Buyer out of the escrow funds described in Section 2.2(a) hereof, with the remainder of the Cash Adjustment, if any, being paid to Buyer by Sellers. If the Working Capital of the Business as set forth on the Closing Balance Sheet is greater than $11 million1,950,000, Buyer shall pay to Seller Sellers an amount equal to the Cash Adjustment. Notwithstanding the foregoing, neither party Buyer shall promptly deliver to Sellers (i) be required to pay a Cash Adjustment under this Section 2.3 unless such Cash Adjustment exceeds $100,000, in which case the applicable party shall pay only such portion copy of the Cash Adjustment that exceeds $100,000, Closing Balance Sheet and (ii) be required, in any event, to pay a Cash Adjustment under this Section 2.3 that exceeds $900,000. Concurrently with Buyer's delivery to Seller of the Closing Balance Sheet, Buyer shall deliver to Seller a reasonably detailed calculation of the Cash Adjustment along with the basis for such calculations. If Seller does Sellers do not object to the amount of the Cash Adjustment within thirty twenty (3020) business days of receipt thereof, such Cash Adjustment shall be final and binding and Seller Sellers shall pay to Buyer, or Buyer shall pay to SellerSellers, as the case may be, no later than the fifth (5th) business day after the thirtieth twentieth (30th20th) business day following receipt of the calculation of the Cash Adjustment an amount in cash equal to the Cash Adjustment, if any.
(b) If Seller objects Sellers object to the Cash Adjustment, if any, it they shall notify Buyer in writing within thirty twenty (3020) business days following receipt thereof, setting forth in specific detail the basis for its their objection and its their proposal for any adjustments to the Cash Adjustment. Buyer and Seller Sellers shall seek in good faith to reach agreement as to any such proposed adjustment or that no such adjustment is necessary within thirty (30) days following Buyer's receipt of written notice of Seller's Sellers' objection. If agreement is reached in writing within such period as to all proposed further adjustments, or that no adjustments are necessary, the parties shall make such adjustments, if any, and the Cash Adjustment shall be based thereon. If Buyer and Seller Sellers are unable to reach agreement within thirty (30) days following Buyer's receipt of written notice of Seller's Sellers' objection, then a "Big-4" independent accounting firm as agreed upon by Buyer and Seller Sellers (the "Third Party Accounting Firm") shall be engaged to review the proposed Cash Adjustment and, to the extent necessary, the Closing Balance Sheet, and such Third Party Accounting Firm shall make a determination as to the resolution of any adjustments necessary to cause the Cash Adjustment to have been properly prepared in accordance with this Agreement. All such resolutions shall relate only to such matters as are still in dispute and shall represent either agreement with the position taken by Buyer or Seller Sellers or a compromise between such positions. The determination of the Third Party Accounting Firm shall be delivered as soon as practicable following selection of the Third Party Accounting Firm and shall be final, conclusive and binding upon the parties. Thereafter, Seller Sellers shall pay to Buyer, or Buyer shall pay to SellerSellers, as the case may be, not later than five (5) business days following the determination of adjustments by the Third Party Accounting Firm, an amount in cash equal to the Cash Adjustment, if any, as determined by the Third Party Accounting Firm. All fees and expenses of the Third Party Accounting Firm shall be borne pro rata by Buyer and Seller Sellers in proportion to the allocation of the dollar amount of changes made by the Third Party Accounting Firm.
Appears in 1 contract