Common use of Post-Closing Adjustments to Purchase Price Clause in Contracts

Post-Closing Adjustments to Purchase Price. (a) Earn-Out Statement. Promptly, but in any event within thirty five (35) days after the end of the Target Period (as defined on Schedule 2.7), Buyer shall in good faith prepare or cause to be prepared and furnished to the Company a written statement (the “Earn-Out Statement”) setting forth its calculation of the Company Revenues and Operating Margin (each as defined on Schedule 2.7), in each case, prepared in accordance with Schedule 2.7 hereto. Following receipt of the Earn-Out Statement, the Company shall be afforded a period of twenty (20) days to review the Buyer’s calculation of the Company Revenues and Operating Margin. At or before the end of the twenty (20) day review period, the Company shall either (i) accept the Earn-Out Statement in its entirety or (ii) deliver to the Buyer a written notice (a “Dispute Notice”) setting forth a detailed explanation of those items in or omitted from the Earn-Out Statement that the Company disputes, including the amount thereof (each, an “Item of Dispute”); provided, that the only basis on which the Company shall be permitted to submit an Item of Dispute is that such Item of Dispute was not prepared in accordance with the terms of this Agreement and Schedule 2.7, or contains mathematical or clerical errors. If the Company does not deliver a Dispute Notice to the Buyer within the twenty (20) day review period, the Company shall be deemed to have accepted the Earn-Out Statement in its entirety. If the Company delivers a Notice of Dispute in which some, but not all, of the items in the Earn-Out Statement are properly disputed, the Company shall be deemed to have accepted all of the items not disputed other than those not directly disputed but which are affected by an Item of Dispute. The Parties shall and shall cause their respective Affiliates to cooperate fully with Buyer in connection with the preparation of the Earn-Out Statement. After the delivery of the Earn-Out Statement, Buyer shall cooperate with the Company and its representatives in connection with its review of the Earn-Out Statement, including by providing the Company and its accountants reasonable access during business hours to materials used in the preparation of the Earn-Out Statement.

Post-Closing Adjustments to Purchase Price. (a) Earn-Out Statement. PromptlyWithin 35 days following the Closing Date, but in any event within thirty five (35) days after the end Purchaser shall deliver to the Seller a statement of the Target Period (Seller’s Current Assets and the Assumed Liabilities prepared by the Purchaser as defined on Schedule 2.7), Buyer shall in good faith prepare or cause to be prepared and furnished to of the Company a written statement Closing Date (the “Earn-Out Closing Statement”) setting forth its calculation of the Company Revenues and Operating Margin (each as defined on Schedule 2.7), in each case, . The Closing Statement shall be prepared in accordance with United States generally accepted accounting practices applied in a manner consistent with the November 30 Balance Sheet, a copy of which is attached hereto as Schedule 2.7 hereto2.3(a) (the “November 30 Balance Sheet”). Following receipt In order to allow meaningful review by the Seller of the Earn-Out Closing Statement, for the period from Closing and including 15 Business Days after delivery of the Closing Statement, the Company Purchaser shall be afforded a period provide the Seller with full and unhindered access during normal business hours to all financial, commercial, marketing and administrative books and records relating to the Business. (b) In the event that the Seller disputes the presentation of twenty (20) days to review any item or items contained in the Buyer’s calculation of the Company Revenues and Operating Margin. At or before the end of the twenty (20) day review periodClosing Statement, the Company Seller shall either notify the Purchaser in writing (i) accept the Earn-Out Statement in its entirety or (ii) deliver to the Buyer a written notice (a “Dispute Notice”) setting forth of the amount, nature and basis of such dispute, within 15 Business Days after delivery of the Closing Statement. In the event of such a detailed explanation of those items in or omitted from dispute, the Earn-Out Statement that Purchaser and the Company disputes, including the amount thereof (each, an “Item of Dispute”); provided, that the only basis on which the Company Seller shall be permitted first use their best efforts to submit an Item of Dispute is that resolve such Item of Dispute was not prepared in accordance with the terms of this Agreement and Schedule 2.7, or contains mathematical or clerical errorsdispute between themselves. If the Company does not deliver a Dispute Notice Purchaser and the Seller are unable to resolve the Buyer dispute within 25 calendar days after delivery of the twenty (20) day review periodClosing Statement, the Company dispute shall be deemed submitted to have accepted an office of KPMG located in a Mid-Atlantic state (the Earn-Out Statement in its entirety“Accountants”). If The Accountants shall be required to resolve the Company delivers a Notice of Dispute in which somedispute within 30 days after submission, but not all, and their determination shall be binding and conclusive upon the Parties. The fees and expenses of the items in the Earn-Out Statement are properly disputed, the Company shall be deemed to have accepted all of the items not disputed other than those not directly disputed but which are affected by an Item of Dispute. The Parties shall and shall cause their respective Affiliates to cooperate fully with Buyer Accountants in connection with the preparation resolution of disputes hereunder shall be apportioned between the Seller and the Purchaser as part of the Earn-Out Statement. After the delivery determination of the Earnrelevant dispute or controversy, in such manner as the Accountants shall deem equitable in light of the issues raised and the degree to which the Seller or the Purchaser shall have prevailed on each such issue, it being the parties’ intention that a prevailing party should not bear such costs. (c) Immediately upon the expiration of the 15-Out Statementday period for giving the Dispute Notice, Buyer if no Dispute Notice is given, or upon the resolution of disputes, if any, pursuant to Section 2.3(b), the Purchase Price shall cooperate with be adjusted (as so adjusted, the Company and its representatives “Final Purchase Price”) as follows: (i) If the value of the Current Assets as of the Closing Date is less than $11,639,000, the Purchase Price shall be reduced by the amount of such difference; (ii) If the value of the Current Assets as of the Closing Date exceeds $11,639,000, the Purchase Price shall be increased by 50% of the amount of such excess; (iii) The Purchase Price will be reduced by the amount of proceeds, if any, received by the Seller in connection with its review the sale or other disposition, between November 30, 2001 and the date hereof, of any assets that, but for such sale, would have constituted Assets, which assets are listed in Schedule 2.3(c); (iv) If the Assumed Liabilities as of the Earn-Out StatementClosing Date (including liabilities arising after the date hereof under the Assigned Contracts) exceed $5,150,000, including the Purchase Price will be reduced by providing the Company and its accountants reasonable access during business hours to materials used in amount of such excess; and (v) If the preparation Assumed Liabilities as of the Earn-Out StatementClosing Date (including liabilities arising after the date hereof under the Assigned Contracts) are less than $5,150,000, the Purchase Price will be increased by the amount of such difference. (d) If the Final Purchase Price determined on the basis of the Closing Statement exceeds the Purchase Price, the amount of such excess shall be paid within three Business Days of such determination by the Purchaser to the Seller by wire transfer of immediately available funds. If the Final Purchase Price is less than the Purchase Price, the Seller shall within three Business Days of such determination pay to the Purchaser the amount of such shortfall by wire transfer of immediately available funds.

Post-Closing Adjustments to Purchase Price. (ai) Earn-Out Statement. Promptly, but in any event within Not later than thirty five (3530) days after the end of the Target Period (as defined on Schedule 2.7)Closing Date, Buyer shall in good faith shall, at its expense, prepare and deliver (or cause to be prepared and furnished delivered) to Parent (A) a consolidated SAP balance sheet of the Company a written statement Companies as of the Closing Date, which shall be prepared (as shall the Consolidated Surplus therein) in all material respects consistent with the preparation of the Reference SAP Balance Sheet (the “Earn-Out StatementClosing SAP Balance Sheet”) setting forth its calculation and (B) Buyer's computation of the Company Revenues and Operating Margin amount (each as defined the “Closing Adjustment Amount”) by which Consolidated Surplus on Schedule 2.7), in each case, prepared in accordance with Schedule 2.7 hereto. Following the Closing SAP Balance Sheet exceeds (or is less than) $24,000,000. (ii) Within thirty (30) days after Parent's receipt of the Earn-Out StatementClosing SAP Balance Sheet (the “Notice Period”), Parent shall deliver notice in writing to Buyer of either (i) Parent's agreement as to the Closing SAP Balance Sheet and Buyer's computation of the Closing Adjustment Amount or (ii) Parent's dispute thereof (if any), specifying in reasonable detail to the extent reasonably possible the nature of its dispute (any such items in dispute, the Company “Disputed Items” and any such notice of the Disputed Items, the “Dispute Notice”). If Parent fails to deliver to Buyer a Dispute Notice within the Notice Period, the Closing SAP Balance Sheet and Buyer's computation of the Closing Adjustment Amount shall be afforded final and binding on the Parties. If Parent delivers a period Dispute Notice to Buyer prior to the expiration of the Notice Period, each Party shall cooperate and shall cause its representatives to cooperate with the other Parties and their representatives in good faith to seek to promptly resolve the Disputed Items. Any Disputed Items that are agreed to in writing by Parent and Buyer (such resolved Disputed Items, “Resolved Items”) within fifteen (15) days of receipt of the Dispute Notice or such other time as is mutually agreed in writing by Parent and Buyer (the “Dispute Period”) shall be final and binding on the Parties. If at the end of the Dispute Period, Parent and Buyer have failed to reach agreement with respect to any Disputed Items (such unresolved Disputed Items, “Remaining Disputed Items”), such Remaining Disputed Items shall, within twenty (20) days to review after the Buyer’s calculation expiration of the Company Revenues Dispute Period, be submitted to the New York, New York office of Ernst & Young or if such accounting firm is not available, to the New York, New York office of an independent certified public accounting firm of national standing and Operating Margin. At reputation jointly selected and retained by Buyer and Parent that is not an independent auditor for either Buyer or before Parent or any of their respective Affiliates, is otherwise neutral and impartial and has experience in the end substance of the Remaining Disputed Items; provided, however, that if Buyer and Parent are unable to select such other accounting firm within twenty (20) day review perioddays after the expiration of the Dispute Period, either Buyer or Parent may request the Company shall either New York, New York office of the American Arbitration Association to appoint, within twenty (i20) accept the Earn-Out Statement in its entirety or (ii) deliver to the Buyer a written notice (a “Dispute Notice”) setting forth a detailed explanation of those items in or omitted Business Days from the Earn-Out Statement that the Company disputes, including the amount thereof (eachdate of such request, an “Item of Dispute”); provided, that independent accounting firm meeting the only basis on which the Company requirements set forth above. The accounting firm so selected shall be permitted referred to submit an Item of Dispute is that herein as the “Accountant.” The Accountant may consider only the Remaining Disputed Items and must resolve such Item of Dispute was not prepared Remaining Disputed Items in accordance with the terms and provisions of this Agreement Agreement. The Accountant shall deliver to Buyer and Schedule 2.7Parent, or contains mathematical or clerical errors. If as promptly as practicable and in any event within forty-five (45) days after its appointment, a written report setting forth the Company does not deliver a Dispute Notice resolution of each Remaining Disputed Item, the resulting adjustments to the Buyer within Closing SAP Balance Sheet (taking into account the twenty Resolved Items and its resolution of the Remaining Disputed Items), and its computation of the Closing Adjustment Amount. Except in the case of fraud or a breach of Section 3.1(d) or (20e) day review period, the Company conclusions in such report shall be deemed to have accepted final and binding upon the Earn-Out Statement in its entiretyParties. If the Company delivers a Notice Each of Dispute in which some, but not all, of the items in the Earn-Out Statement are properly disputed, the Company Buyer and Parent shall be deemed to have accepted (A) bear all of the items not disputed other than those not directly disputed but which are affected its fees, costs and expenses incurred by an Item of Dispute. The Parties shall it and shall cause their respective its Affiliates to cooperate fully with Buyer in connection with the preparation resolution of the EarnDisputed Items and (B) pay one-Out Statement. After the delivery half of the Earnfees and costs of the Accountant. (iii) On or before the second (2nd) Business Day after Buyer and Parent agree (or are deemed to agree) to the Closing Adjustment Amount or Buyer and Parent receive notice of any final determination of the Closing Adjustment Amount by the Accountant, as applicable, (the “Settlement Date”) (A) Parent shall pay to Buyer the amount by which the Pre-Out StatementClosing Adjustment Amount exceeds the Closing Adjustment Amount or (B) Buyer shall pay to Parent the amount by which the Closing Adjustment Amount exceeds the Pre-Closing Adjustment Amount (either such payment, the “Closing Adjustment Payment”). The Closing Adjustment Payment shall be made by wire transfer of immediately available funds to the account or accounts designated in writing by, as applicable, Buyer shall cooperate with the Company and its representatives in connection with its review of the Earn-Out Statement, including by providing the Company and its accountants reasonable access during business hours to materials used in the preparation of the Earn-Out Statementor Parent.