Post-Closing Purchase Price Adjustments Sample Clauses: 109 Samples

Post-Closing Purchase Price Adjustments. (a) Within ninety (90) days after the Closing Date, the Purchaser shall prepare and deliver to the Sellers the Initial Working Capital Statement, which shall include reasonable detail supporting the Purchaser’s calculations set forth therein and reasonable detail supporting any change from the amounts set forth in the Estimated Working Capital Statement or the calculations set forth therein. (b) Subject to complying with the restrictions set forth in Section 5.1, at reasonable times during normal business hours during the 30-day period immediately following the Sellers’ receipt of the Initial Working Capital Statement, each Seller and his or its Representatives shall be permitted to review the records of TangenX relating to the Initial Working Capital Statement that are reasonably requested by such Seller, and the Purchaser shall make reasonably available to each Seller and his or its Representatives the individuals employed by TangenX and/or the Purchaser that were responsible for the preparation of the Initial Working Capital Statement in order to respond to the reasonable inquiries of such Seller related thereto. Any information provided to the Sellers pursuant to this Section 2.5 shall be considered Covered Information. (c) The Sellers shall deliver to the Purchaser by the Objection Deadline Date either a notice indicating that the Sellers accept the Initial Working Capital Statement (“Notice of Acceptance”) or a detailed statement describing the Sellers’ objections to the Initial Working Capital Statement (“Notice of Disagreement”); provided, that any objections must be on the basis that the amounts set forth in the Initial Working Capital Statement (i) were not determined in accordance with the TangenX Accounting Practices (or in the case of Indebtedness of the types included in clauses (d), (f) and (h) of the definition of Indebtedness, GAAP) or otherwise not calculated in accordance with the applicable terms of this Agreement, or (ii) were arrived at based on mathematical or clerical error. If the Sellers deliver to the Purchaser a Notice of Acceptance, or the Sellers do not deliver a Notice of Disagreement on or before the Objection Deadline Date, then, effective as of the earlier of the date of delivery of such Notice of Acceptance and the end of the Objection Deadline Date, the Initial Working Capital Statement shall be deemed to be the Final Working Capital Statement. If the Sellers timely deliver a Notice of Disagreement, only those matters specified in such Notice of Disagreement shall be deemed to be in dispute (the “Disputed Items”), and all other matters included in the Initial Working Capital Statement shall be final, binding and conclusive upon the parties hereto. (d) The Disputed Items set forth on the Notice of Disagreement shall be resolved as follows: (i) The Sellers and the Purchaser shall first use commercially reasonable efforts to resolve such Disputed Items. (ii) Any resolution by the Sellers and the Purchaser as to such Disputed Items shall be final and binding on the parties hereto. (iii) If the Sellers and the Purchaser do not reach a resolution of all Disputed Items set forth on the Notice of Disagreement within thirty (30) days after delivery of such Notice of Disagreement, the Sellers and the Purchaser shall, within thirty (30) days following the expiration of such 30-day period, engage the Accounting Referee, pursuant to an engagement agreement executed by the Sellers, the Purchaser and the Accounting Referee, to resolve any Unresolved Objections. (iv) The Accounting Referee shall be instructed only to resolve the Unresolved Objections based on written information to be provided to, or presentations made to, the Accounting Referee by the Sellers and the Purchaser and shall be instructed not to otherwise investigate any other matter independently. The Sellers and the Purchaser shall request that the Accounting Referee make a final determination (which determination shall be binding on the parties hereto) of the Unresolved Objections within thirty (30) days from the date the Unresolved Objections and presentations were submitted to the Accounting Referee and such final determination shall be deemed the Final Working Capital Statement. During the 30-day review by the Accounting Referee, the Sellers and the Purchaser shall each make available to the Accounting Referee such individuals and such information, books and records as may be reasonably required by the Accounting Referee to make its final determination. (v) The resolution by the Accounting Referee of the Unresolved Objections shall be conclusive and binding upon the parties hereto absent manifest error or fraud. The parties hereto agree that the procedure set forth in this Section 2.5(d) for resolving disputes with respect to the Working Capital Amount and the Cash and Cash Equivalents shall be the sole and exclusive method for resolving any such disputes. (vi) The fees and expenses of the Accounting Referee will be allocated to and paid by the Purchaser, on the one hand, and the Sellers, on the other hand, based upon the relative success (in terms of percentages) of the aggregate of each of the Purchaser’s and the Sellers’ claims, as determined by the Accounting Referee. (e) The Initial Working Capital Statement, including any modifications resulting from the resolution of any Disputed Items set forth in the Notice of Disagreement, shall be deemed to be the Final Working Capital Statement and be binding on the parties hereto for the purposes of this Section 2.5 upon the earliest to occur of: (i) the delivery by the Sellers of the Notice of Acceptance or the failure of the Sellers to deliver the Notice of Disagreement by the Objection Deadline Date pursuant to Section 2.5(c); (ii) the resolution of all Disputed Items by the Sellers and the Purchaser pursuant to Section 2.5(d)(ii); and (iii) the resolution of all Disputed Items pursuant to Section 2.5(d)(v) by the Accounting Referee. Within five (5) Business Days after the Final Working Capital Statement becomes or is deemed final and binding on the parties hereto, an adjustment to the Purchase Price and a payment by wire transfer in respect thereof described below shall be made as follows: (i) If the Closing Cash Adjustment is positive, within five (5) Business Days of the final determination of all amounts covered in the Initial Working Capital Statement, the Purchaser shall pay to the Sellers an amount equal to the Closing Cash Adjustment, which amount shall be paid to each Seller based on his or its Pro Rata Share of the Closing Cash Adjustment by wire transfer to the Wire Transfer Instructions; or (ii) If the Closing Cash Adjustment is negative, then an amount in cash equal to the absolute amount of the Closing Cash Adjustment shall be paid to the Purchaser by the Escrow Agent from the Escrow Account, and in the event that the Closing Cash Adjustment owed to the Purchaser exceeds the Escrow Fund, the Purchaser may seek payment of any such excess directly from the Sellers. Any payment required under this Section 2.5(e)(ii) shall be made within five (5) Business Days of the final determination of all amounts covered in the Initial Working Capital Statement. (f) If the delivery deadline date for the Initial Working Capital Statement or the Objection Deadline Date is a day that is not a Business Day, the applicable delivery deadline date shall be the immediately following Business Day.

Appears in 1 contract

Sources: Stock Purchase Agreement (Repligen Corp)

Post-Closing Purchase Price Adjustments. (a) Within sixty (60) days after the Closing Date, Buyer shall deliver to Sellers the data, work papers and supporting schedules showing in reasonable detail Buyer’s good faith calculation of the Base Purchase Price, computed in a manner consistent with the example set forth in Schedule 2.5, and the final Purchase Price based thereon (the “Final Closing Statement”). If Sellers dispute any matter or item set forth in the Final Closing Statement, Sellers may, within forty-five (45) days after receipt of the Final Closing Statement, provide to Buyer a written statement (the “Dispute Notice”) of such disputes. If Sellers do not deliver to Buyer any Dispute Notice concerning the Final Closing Statement, then Sellers shall be deemed to have accepted the Final Closing Statement and the amounts set forth in the Final Closing Statement shall be final and binding on all parties to this Agreement. If Sellers timely deliver a Dispute Notice, Buyer and Sellers shall use good faith efforts to jointly resolve such disputes within thirty (30) days after Buyer’s receipt of the Dispute Notice, which resolution, if achieved, shall be final and binding upon all parties to this Agreement. If Buyer and Sellers cannot resolve such disputes to their mutual satisfaction within such 30-day period, Buyer and Sellers shall, within the following ten (10) days, jointly engage Ernst & Young LLP (the “Independent Accountants”) to review the Final Closing Statement together with Sellers’ statement of disputes and any other relevant documents. The Independent Accountants shall calculate the adjustments to the Base Purchase Price using the items included in the Final Closing Statement that are not disputed by Buyer and Sellers and shall make its own determination of any item that is disputed by Buyer and Sellers, but otherwise in accordance with the provisions of this Agreement; provided, however, in no event shall any such determination by the Independent Accountants for any disputed item be outside the range therefor set forth in the Final Closing Statement and the written statement of disputes. The determination of the Independent Accountants shall be accompanied by a certificate that its determination was prepared in accordance with this Agreement with respect to such dispute. The Independent Accountants shall report its conclusions as to such disputes and its determination of the adjustments to the Base Purchase Price and the final Purchase Price based thereon pursuant to this Section 2.7 no later than thirty (30) days after it is engaged by Buyer and Sellers, which determination shall be final and binding on all parties to this Agreement and not subject to further dispute or judicial review. If the Buyer does not deliver to the Sellers a Final Closing Statement within sixty (60) days after the Closing Date, then, within ninety (90) days after the Closing ~~Date~~Date the Sellers may, ~~the Purchaser~~ but shall ~~prepare and~~ not be obligated to, deliver to the ~~Sellers the Initial Working Capital~~ Buyer a Final Closing Statement, which shall ~~include reasonable detail supporting~~ be subject to the ~~Purchaser’s calculations set forth therein~~ same review and ~~reasonable detail supporting any change from the amounts~~ adjustment process that a Buyer-produced Final Closing Statement would have been subject to if Buyer had delivered a Final Closing Statement, as set forth in ~~the Estimated Working Capital Statement or the calculations set forth therein~~this Section 2.7. (b) Subject to complying with the restrictions set forth in Section 5.1, at reasonable times during normal business hours during the 30-day period immediately following the Sellers’ receipt of the Initial Working Capital Statement, each Seller and his or its Representatives shall be permitted to review the records of TangenX relating to the Initial Working Capital Statement that are reasonably requested by such Seller, and the Purchaser shall make reasonably available to each Seller and his or its Representatives the individuals employed by TangenX and/or the Purchaser that were responsible for the preparation of the Initial Working Capital Statement in order to respond to the reasonable inquiries of such Seller related thereto. Any information provided to the Sellers pursuant to this Section 2.5 shall be considered Covered Information. (c) The Sellers shall deliver to the Purchaser by the Objection Deadline Date either a notice indicating that the Sellers accept the Initial Working Capital Statement (“Notice of Acceptance”) or a detailed statement describing the Sellers’ objections to the Initial Working Capital Statement (“Notice of Disagreement”); provided, that any objections must be on the basis that the amounts set forth in the Initial Working Capital Statement (i) were not determined in accordance with the TangenX Accounting Practices (or in the case of Indebtedness of the types included in clauses (d), (f) and (h) of the definition of Indebtedness, GAAP) or otherwise not calculated in accordance with the applicable terms of this Agreement, or (ii) were arrived at based on mathematical or clerical error. If the Sellers deliver to the Purchaser a Notice of Acceptance, or the Sellers do not deliver a Notice of Disagreement on or before the Objection Deadline Date, then, effective as of the earlier of the date of delivery of such Notice of Acceptance and the end of the Objection Deadline Date, the Initial Working Capital Statement shall be deemed to be the Final Working Capital Statement. If the Sellers timely deliver a Notice of Disagreement, only those matters specified in such Notice of Disagreement shall be deemed to be in dispute (the “Disputed Items”), and all other matters included in the Initial Working Capital Statement shall be final, binding and conclusive upon the parties hereto. (d) The Disputed Items set forth on the Notice of Disagreement shall be resolved as follows: (i) The Sellers and the Purchaser shall first use commercially reasonable efforts to resolve such Disputed Items. (ii) Any resolution by the Sellers and the Purchaser as to such Disputed Items shall be final and binding on the parties hereto. (iii) If the Sellers and the Purchaser do not reach a resolution of all Disputed Items set forth on the Notice of Disagreement within thirty (30) days after delivery of such Notice of Disagreement, the Sellers and the Purchaser shall, within thirty (30) days following the expiration of such 30-day period, engage the Accounting Referee, pursuant to an engagement agreement executed by the Sellers, the Purchaser and the Accounting Referee, to resolve any Unresolved Objections. (iv) The Accounting Referee shall be instructed only to resolve the Unresolved Objections based on written information to be provided to, or presentations made to, the Accounting Referee by the Sellers and the Purchaser and shall be instructed not to otherwise investigate any other matter independently. The Sellers and the Purchaser shall request that the Accounting Referee make a final determination (which determination shall be binding on the parties hereto) of the Unresolved Objections within thirty (30) days from the date the Unresolved Objections and presentations were submitted to the Accounting Referee and such final determination shall be deemed the Final Working Capital Statement. During the 30-day review by the Accounting Referee, the Sellers and the Purchaser shall each make available to the Accounting Referee such individuals and such information, books and records as may be reasonably required by the Accounting Referee to make its final determination. (v) The resolution by the Accounting Referee of the Unresolved Objections shall be conclusive and binding upon the parties hereto absent manifest error or fraud. The parties hereto agree that the procedure set forth in this Section 2.5(d) for resolving disputes with respect to the Working Capital Amount and the Cash and Cash Equivalents shall be the sole and exclusive method for resolving any such disputes. (vi) The fees and expenses (including any related indemnity obligation to such independent public accounting firm) of the Independent Accountants (the “Aggregate Accounting ~~Referee will~~ Fees”) shall be allocated ~~to and paid by the Purchaser~~between Buyer, on the one hand, and ~~the~~ Sellers, on the other hand, ~~based upon~~ as follows: a portion of the ~~relative success~~ Aggregate Accounting Fees equal to the product of the Aggregate Accounting Fees times a fraction, the numerator of which is the aggregate dollar amount of the disputed items resolved by the Independent Accountants in favor of Sellers and the denominator of which is the aggregate dollar amount of all disputed items submitted to the Independent Accountants for resolution, shall be allocated to Buyer, and the remainder shall be allocated to Sellers (in ~~terms of percentages) of the aggregate of~~ each ~~of the Purchaser’s and the Sellers’ claims,~~ case as finally determined by the ~~Accounting Referee~~Independent Accountants). (ec) ~~The Initial Working Capital Statement, including any modifications resulting from~~ Within five Business Days after the ~~resolution~~ final determination of ~~any Disputed Items set forth in~~ the ~~Notice of Disagreement, shall be deemed to be the Final Working Capital Statement and be binding on the parties hereto for the purposes of this Section 2.5 upon the earliest to occur of~~Purchase Price: (i) if the ~~delivery~~ Purchase Price (as finally determined in accordance with Section 2.8) exceeds the Estimated Purchase Price, Buyer will pay to Sellers (or such other Person as designated by Sellers), by wire transfer of immediately available funds to the ~~Sellers~~ bank account designated in writing by Sellers, the amount of ~~the Notice of Acceptance~~ such excess; or ~~the failure of the Sellers to deliver the Notice of Disagreement by the Objection Deadline Date pursuant to Section 2.5(c);~~ (ii) the resolution of all Disputed Items by the Sellers and the Purchaser pursuant to Section 2.5(d)(ii); and (iii) the resolution of all Disputed Items pursuant to Section 2.5(d)(v) by the Accounting Referee. Within five (5) Business Days after the Final Working Capital Statement becomes or is deemed final and binding on the parties hereto, an adjustment to if the Purchase Price ~~and a payment~~ (as finally determined in accordance with Section 2.8) is less than the Estimated Purchase Price, Sellers shall pay to Buyer, by wire transfer of immediately available funds to the bank account designated in respect thereof described below shall be made as follows: (i) If the Closing Cash Adjustment is positive, within five (5) Business Days of the final determination of all amounts covered in the Initial Working Capital Statementwriting by Buyer, the Purchaser shall pay to the Sellers an amount equal to the Closing Cash Adjustment, which amount shall be paid to each Seller based on his or its Pro Rata Share of the Closing Cash Adjustment by wire transfer to the Wire Transfer Instructions; or (ii) If the Closing Cash Adjustment is negative, then an amount in cash equal to the absolute amount of the Closing Cash Adjustment shall be paid to the Purchaser by the Escrow Agent from the Escrow Account, and in the event that the Closing Cash Adjustment owed to the Purchaser exceeds the Escrow Fund, the Purchaser may seek payment of any such excess directly from the Sellers. Any payment required under this Section 2.5(e)(ii) shall be made within five (5) Business Days of the final determination of all amounts covered in the Initial Working Capital Statementdeficit. (fd) If Sellers will provide to Buyer reasonable access during regular business hours on reasonable advance notice to the ~~delivery deadline date~~ Books and Records and to any other information, to the extent necessary for Buyer to review the ~~Initial Working Capital~~ Preliminary Closing Statement, to prepare the Final Closing Statement, to respond to Sellers’ objections to the Final Closing Statement (if any), and to prepare materials for presentation to the Independent Accountants in connection with Section 2.7(a). Buyer will provide to Sellers reasonable access to the Books and Records and to any other information used by Buyer in preparing the Final Closing Statement, including to any Hired Employees or other employees of Buyer, during regular business hours and on reasonable advance notice, to the ~~Objection Deadline Date is a day that is~~ extent necessary for Seller to review the Final Closing Statement, to prepare the Final Closing Statement if Buyer has not ~~a Business Day~~delivered it within the timeframe specified in Section 2.7(a), and to prepare materials for presentation to the ~~applicable delivery deadline date shall~~ Independent Accountants in connection with Section 2.7(a). Each party will cooperate with the Independent Accountants as may be reasonably necessary and will promptly provide to such independent public accounting firm such information as may be reasonably requested by the ~~immediately following Business Day~~Independent Accountants.

Appears in 1 contract

Sources: Asset Purchase Agreement (NewStar Financial, Inc.)

Post-Closing Purchase Price Adjustments. (a) Within ~~ninety (90)~~ 180 days after the Closing, Purchaser shall perform, at its cost and expense, an accounting, in accordance with the accounting methodology set forth in Section 1.3(c)(i), to determine each of the Selected Assets Value and the Selected Liabilities Amount as of the Closing Date, but with any adjustment of each component taking into account actual results and events since the Closing Date. For example, reserves against receivables will be adjusted in light of actual amounts collected or then believed to be collectible. Promptly thereafter, Purchaser shall ~~prepare and~~ deliver or cause to ~~the Sellers the Initial Working Capital Statement, which shall include reasonable detail supporting the~~ be delivered to Seller a written report summarizing Purchaser’s ~~calculations set forth therein~~ determination of each of the foregoing together with Purchaser’s calculation of the Adjustment Amount (as defined below), if any (the “Adjustment Determination”). During the accounting process, representatives of Seller shall be afforded a reasonable opportunity to observe and ~~reasonable detail supporting any change~~ to consult with Purchaser and/or Purchaser’s agents regarding the procedures undertaken and the assumptions made by Purchaser in connection with its accounting. Purchaser will also notify Seller and provide Seller an opportunity to consult on post-Closing decisions with regard to retail ▇▇▇▇-▇▇▇▇▇ and inventory replacement where such decisions will materially impact the Adjustment Amount; provided that Purchaser will have sole decision-making authority over such matters and nothing herein shall prevent Seller from contesting the ~~amounts set forth~~ Adjustment Amount in the ~~Estimated Working Capital Statement or the calculations set forth therein~~manner provided below. (b) ~~Subject~~ If the Adjustment Amount as initially determined by Purchaser is a positive number, then Purchaser shall pay or cause to ~~complying with the restrictions set forth~~ be paid to Seller such amount, as provided in ~~Section 5.1~~paragraph (f) of this Section, ~~at reasonable times during normal business hours during the 30-day period immediately~~ within five days following the ~~Sellers’ receipt~~ expiration of the ~~Initial Working Capital Statement~~Objection Period, ~~each~~ provided that Seller ~~and his~~ has not made any Objections. If Seller makes any Objections pursuant to paragraph (d) of this Section, then Purchaser shall not be required to pay any amounts hereunder to Seller until such Objections are resolved by agreement of the parties or ~~its Representatives~~ pursuant to Section 11.3. Upon such resolution, Purchaser (or Seller if an overpayment shall be ~~permitted~~ shown to ~~review the records of TangenX relating to the Initial Working Capital Statement that are reasonably requested by such Seller, and the Purchaser~~ have been made) shall make reasonably available to each Seller and his or its Representatives the individuals employed by TangenX and/or the Purchaser that were responsible for the preparation of the Initial Working Capital Statement in order to respond to the reasonable inquiries of such Seller related thereto. Any information provided to the Sellers pursuant to this Section 2.5 shall be considered Covered Informationappropriate payment within five (5) Business Days. (c) ~~The Sellers~~ If the Adjustment Amount as initially determined by Purchaser is a negative number, then Seller shall ~~deliver~~ pay or cause to be paid to Purchaser such amount, as provided in paragraph (f) of this Section. Any such payment shall be paid within five days after the ~~Purchaser~~ date of receipt of the Adjustment Determination by the Objection Deadline Date either a notice indicating that the Sellers accept the Initial Working Capital Statement (“Notice of Acceptance”) or a detailed statement describing the Sellers’ objections to the Initial Working Capital Statement (“Notice of Disagreement”)Seller; provided, that if any ~~objections must~~ Objections have been made during the Objection Period, then Seller shall not be ~~on the basis that the~~ required to pay any amounts ~~set forth~~ to Purchaser in ~~the Initial Working Capital Statement (i) were not determined in accordance with the TangenX Accounting Practices (or in the case~~ respect of ~~Indebtedness~~ Purchaser’s determination of the ~~types included in clauses (d), (f) and (h)~~ Adjustment Amount until all Objections have been resolved by agreement of the ~~definition of Indebtedness, GAAP)~~ parties or otherwise not calculated in accordance with the applicable terms of this Agreement, or (ii) were arrived at based on mathematical or clerical error. If the Sellers deliver to the Purchaser a Notice of Acceptance, or the Sellers do not deliver a Notice of Disagreement on or before the Objection Deadline Date, then, effective as of the earlier of the date of delivery of such Notice of Acceptance and the end of the Objection Deadline Date, the Initial Working Capital Statement shall be deemed to be the Final Working Capital Statement. If the Sellers timely deliver a Notice of Disagreement, only those matters specified in such Notice of Disagreement shall be deemed to be in dispute (the “Disputed Items”), and all other matters included in the Initial Working Capital Statement shall be final, binding and conclusive upon the parties hereto. (d) The Disputed Items set forth on the Notice of Disagreement shall be resolved as follows: (i) The Sellers and the Purchaser shall first use commercially reasonable efforts to resolve such Disputed Items. (ii) Any resolution by the Sellers and the Purchaser as to such Disputed Items shall be final and binding on the parties hereto. (iii) If the Sellers and the Purchaser do not reach a resolution of all Disputed Items set forth on the Notice of Disagreement within thirty (30) days after delivery of such Notice of Disagreement, the Sellers and the Purchaser shall, within thirty (30) days following the expiration of such 30-day period, engage the Accounting Referee, pursuant to an engagement agreement executed by the Sellers, the Purchaser and the Accounting Referee, to resolve any Unresolved Objections. (iv) The Accounting Referee shall be instructed only to resolve the Unresolved Objections based on written information to be provided to, or presentations made to, the Accounting Referee by the Sellers and the Purchaser and shall be instructed not to otherwise investigate any other matter independently. The Sellers and the Purchaser shall request that the Accounting Referee make a final determination (which determination shall be binding on the parties hereto) of the Unresolved Objections within thirty (30) days from the date the Unresolved Objections and presentations were submitted to the Accounting Referee and such final determination shall be deemed the Final Working Capital Statement. During the 30-day review by the Accounting Referee, the Sellers and the Purchaser shall each make available to the Accounting Referee such individuals and such information, books and records as may be reasonably required by the Accounting Referee to make its final determination. (v) The resolution by the Accounting Referee of the Unresolved Objections shall be conclusive and binding upon the parties hereto absent manifest error or fraud. The parties hereto agree that the procedure set forth in this Section 2.5(d) for resolving disputes with respect to the Working Capital Amount and the Cash and Cash Equivalents shall be the sole and exclusive method for resolving any such disputes. (vi) The fees and expenses of the Accounting Referee will be allocated to and paid by the Purchaser, on the one hand, and the Sellers, on the other hand, based upon the relative success (in terms of percentages) of the aggregate of each of the Purchaser’s and the Sellers’ claims, as determined by the Accounting Referee. (e) The Initial Working Capital Statement, including any modifications resulting from the resolution of any Disputed Items set forth in the Notice of Disagreement, shall be deemed to be the Final Working Capital Statement and be binding on the parties hereto for the purposes of this Section 2.5 upon the earliest to occur of: (i) the delivery by the Sellers of the Notice of Acceptance or the failure of the Sellers to deliver the Notice of Disagreement by the Objection Deadline Date pursuant to Section 2.5(c); (ii) the resolution of all Disputed Items by the Sellers and the Purchaser pursuant to Section 2.5(d)(ii); and (iii) the resolution of all Disputed Items pursuant to Section 2.5(d)(v) by the Accounting Referee. Within five (5) Business Days after the Final Working Capital Statement becomes or is deemed final and binding on the parties hereto11.3, ~~an adjustment to the Purchase Price and a payment by wire transfer in respect thereof described below shall be made as follows: (i) If the Closing Cash Adjustment is positive~~at which time, within five (5) Business Days following such resolution, (i) Seller shall pay the Adjustment Amount, to the extent it is determined to be negative after giving effect to such resolution of the ~~final determination of all amounts covered in the Initial Working Capital Statement~~Objections, ~~the~~ or (ii) Purchaser shall pay Seller any amounts determined to be due to Seller after giving effect to the ~~Sellers an amount~~ resolution of such Objections. (d) Within fifteen (15) days following receipt of the Adjustment Determination (the “Objection Period”), Seller shall inform Purchaser in writing of any objections to the Adjustment Determination (the “Objections”), setting forth written explanations of the Objections and the adjustments that Seller believes should be made. Following notice of the Objections, Purchaser shall have fifteen (15) days to review and respond in writing to the Objections, setting forth written explanations in those areas where it disagrees with the Objections. Any disputes remaining at such time shall be resolved in accordance with Section 11.3. (e) As used in this Section 1.9, the “Adjustment Amount” (which may be a positive or negative number) shall be equal to (i) the ~~Closing Cash Adjustment~~Selected Assets Value minus the Estimated SAV, ~~which amount shall be paid to each Seller based on his~~ offset by, or ~~its Pro Rata Share of the Closing Cash Adjustment by wire transfer to the Wire Transfer Instructions; or~~ in addition to, as applicable, (ii) If the ~~Closing Cash~~ Estimated SLA minus the Selected Liabilities Amount (the combination of (i) and (ii) being referred to hereafter as the “Primary Adjustment ~~is negative~~Amount,” which, ~~then an amount~~ if it be a negative number, shall not be greater than $750,000), further offset by, or in ~~cash equal to~~ addition to, as applicable, (iii) the ~~absolute~~ amount of interest paid, or that would have been paid, as the ~~Closing Cash Adjustment shall be paid to~~ case may be, on the Purchaser by Promissory Note had the ~~Escrow Agent from~~ Cash Component at the ~~Escrow Account~~time of Closing been based on the Selected Assets Value and Selected Liability Amounts instead of the Estimated SAV and Estimated SLA (hereafter the “Interest Adjustment Amount”), and (iv) any other amounts necessary to place the parties in the ~~event that~~ same position as if the Cash Component at the time of Closing ~~Cash Adjustment owed to~~ had been based on the Purchaser exceeds the Escrow Fund, the Purchaser may seek payment of any such excess directly from the Sellers. Any payment required under this Section 2.5(e)(ii) shall be made within five (5) Business Days Selected Assets Value and Selected Liability Amounts instead of the ~~final determination of all amounts covered in the Initial Working Capital Statement~~Estimated SAV and Estimated SLA. (f) If A payment under either of paragraph (b) or (c) of this Section shall be made via wire transfer of immediately available funds to an account or accounts designated by Purchaser or Seller, as applicable; provided, however, that in the ~~delivery deadline date~~ event a Purchaser Promissory Note, or some portion thereof, remains outstanding at the time a payment under paragraph (b) or (c) of this Section becomes due, then Seller shall surrender such Purchaser Promissory Note to Purchaser for ~~the Initial Working Capital Statement or the Objection Deadline Date is~~ cancellation and replacement with a ~~day that is not a Business Day~~new promissory note, the ~~applicable delivery deadline date~~ principal amount of which shall be the principal outstanding on the Purchaser Promissory Note at the time of surrender by Seller adjusted by the Primary Adjustment Amount (the “Purchaser Replacement Note”), with the Interest Adjustment Amount (i) if owed to Purchaser, being credited against future interest payments on the Purchaser Replacement Note and, if additional amounts remain owing, thereafter being promptly paid to Purchaser by Seller in cash, or (ii) if owed to Seller, being paid by Purchaser to Seller in cash. In the event the principal amount of the Purchaser Replacement Note would be a negative number, Seller shall surrender the Purchaser Promissory Note to Purchaser for cancellation in its entirety and Seller shall pay to Purchaser via wire transfer of immediately ~~following Business Day~~available funds the amount by which the principal amount of the Purchaser Replacement Note would be negative along with all other amounts comprising the Adjustment Amount.

Appears in 1 contract

Sources: Asset Purchase Agreement (MFC Development Corp)

Post-Closing Purchase Price Adjustments. (a) Within ~~ninety (90)~~ 180 days after the Closing, Purchaser shall perform, at its cost and expense, an accounting, in accordance with the accounting methodology set forth in Section 1.3(c)(i), to determine each of the Selected Assets Value and the Selected Liabilities Amount as of the Closing Date, but with any adjustment of each component taking into account actual results and events since the Closing Date. For example, reserves against receivables will be adjusted in light of actual amounts collected or then believed to be collectible. Promptly thereafter, Purchaser shall ~~prepare and~~ deliver or cause to ~~the Sellers the Initial Working Capital Statement, which shall include reasonable detail supporting the~~ be delivered to Seller a written report summarizing Purchaser’s ~~calculations set forth therein~~ determination of each of the foregoing together with Purchaser’s calculation of the Adjustment Amount (as defined below), if any (the “Adjustment Determination”). During the accounting process, representatives of Seller shall be afforded a reasonable opportunity to observe and ~~reasonable detail supporting any change~~ to consult with Purchaser and/or Purchaser’s agents regarding the procedures undertaken and the assumptions made by Purchaser in connection with its accounting. Purchaser will also notify Seller and provide Seller an opportunity to consult on post-Closing decisions with regard to retail ▇▇▇▇-▇▇▇▇▇ and inventory replacement where such decisions will materially impact the Adjustment Amount; provided that Purchaser will have sole decision-making authority over such matters and nothing herein shall prevent Seller from contesting the ~~amounts set forth~~ Adjustment Amount in the ~~Estimated Working Capital Statement or the calculations set forth therein~~manner provided below. (b) ~~Subject~~ If the Adjustment Amount as initially determined by Purchaser is a positive number, then Purchaser shall pay or cause to ~~complying with the restrictions set forth~~ be paid to Seller such amount, as provided in ~~Section 5.1~~paragraph (f) of this Section, ~~at reasonable times during normal business hours during the 30-day period immediately~~ within five days following the ~~Sellers’ receipt~~ expiration of the ~~Initial Working Capital Statement~~Objection Period, ~~each~~ provided that Seller ~~and his~~ has not made any Objections. If Seller makes any Objections pursuant to paragraph (d) of this Section, then Purchaser shall not be required to pay any amounts hereunder to Seller until such Objections are resolved by agreement of the parties or ~~its Representatives~~ pursuant to Section 11.3. Upon such resolution, Purchaser (or Seller if an overpayment shall be ~~permitted~~ shown to ~~review the records of TangenX relating to the Initial Working Capital Statement that are reasonably requested by such Seller, and the Purchaser~~ have been made) shall make reasonably available to each Seller and his or its Representatives the individuals employed by TangenX and/or the Purchaser that were responsible for the preparation of the Initial Working Capital Statement in order to respond to the reasonable inquiries of such Seller related thereto. Any information provided to the Sellers pursuant to this Section 2.5 shall be considered Covered Informationappropriate payment within five (5) Business Days. (c) ~~The Sellers~~ If the Adjustment Amount as initially determined by Purchaser is a negative number, then Seller shall ~~deliver~~ pay or cause to be paid to Purchaser such amount, as provided in paragraph (f) of this Section. Any such payment shall be paid within five days after the ~~Purchaser~~ date of receipt of the Adjustment Determination by the Objection Deadline Date either a notice indicating that the Sellers accept the Initial Working Capital Statement (“Notice of Acceptance”) or a detailed statement describing the Sellers’ objections to the Initial Working Capital Statement (“Notice of Disagreement”)Seller; provided, that if any ~~objections must~~ Objections have been made during the Objection Period, then Seller shall not be ~~on the basis that the~~ required to pay any amounts ~~set forth~~ to Purchaser in ~~the Initial Working Capital Statement (i) were not determined in accordance with the TangenX Accounting Practices (or in the case~~ respect of ~~Indebtedness~~ Purchaser’s determination of the ~~types included in clauses (d), (f) and (h)~~ Adjustment Amount until all Objections have been resolved by agreement of the ~~definition of Indebtedness, GAAP)~~ parties or otherwise not calculated in accordance with the applicable terms of this Agreement, or (ii) were arrived at based on mathematical or clerical error. If the Sellers deliver to the Purchaser a Notice of Acceptance, or the Sellers do not deliver a Notice of Disagreement on or before the Objection Deadline Date, then, effective as of the earlier of the date of delivery of such Notice of Acceptance and the end of the Objection Deadline Date, the Initial Working Capital Statement shall be deemed to be the Final Working Capital Statement. If the Sellers timely deliver a Notice of Disagreement, only those matters specified in such Notice of Disagreement shall be deemed to be in dispute (the “Disputed Items”), and all other matters included in the Initial Working Capital Statement shall be final, binding and conclusive upon the parties hereto. (d) The Disputed Items set forth on the Notice of Disagreement shall be resolved as follows: (i) The Sellers and the Purchaser shall first use commercially reasonable efforts to resolve such Disputed Items. (ii) Any resolution by the Sellers and the Purchaser as to such Disputed Items shall be final and binding on the parties hereto. (iii) If the Sellers and the Purchaser do not reach a resolution of all Disputed Items set forth on the Notice of Disagreement within thirty (30) days after delivery of such Notice of Disagreement, the Sellers and the Purchaser shall, within thirty (30) days following the expiration of such 30-day period, engage the Accounting Referee, pursuant to an engagement agreement executed by the Sellers, the Purchaser and the Accounting Referee, to resolve any Unresolved Objections. (iv) The Accounting Referee shall be instructed only to resolve the Unresolved Objections based on written information to be provided to, or presentations made to, the Accounting Referee by the Sellers and the Purchaser and shall be instructed not to otherwise investigate any other matter independently. The Sellers and the Purchaser shall request that the Accounting Referee make a final determination (which determination shall be binding on the parties hereto) of the Unresolved Objections within thirty (30) days from the date the Unresolved Objections and presentations were submitted to the Accounting Referee and such final determination shall be deemed the Final Working Capital Statement. During the 30-day review by the Accounting Referee, the Sellers and the Purchaser shall each make available to the Accounting Referee such individuals and such information, books and records as may be reasonably required by the Accounting Referee to make its final determination. (v) The resolution by the Accounting Referee of the Unresolved Objections shall be conclusive and binding upon the parties hereto absent manifest error or fraud. The parties hereto agree that the procedure set forth in this Section 2.5(d) for resolving disputes with respect to the Working Capital Amount and the Cash and Cash Equivalents shall be the sole and exclusive method for resolving any such disputes. (vi) The fees and expenses of the Accounting Referee will be allocated to and paid by the Purchaser, on the one hand, and the Sellers, on the other hand, based upon the relative success (in terms of percentages) of the aggregate of each of the Purchaser’s and the Sellers’ claims, as determined by the Accounting Referee. (e) The Initial Working Capital Statement, including any modifications resulting from the resolution of any Disputed Items set forth in the Notice of Disagreement, shall be deemed to be the Final Working Capital Statement and be binding on the parties hereto for the purposes of this Section 2.5 upon the earliest to occur of: (i) the delivery by the Sellers of the Notice of Acceptance or the failure of the Sellers to deliver the Notice of Disagreement by the Objection Deadline Date pursuant to Section 2.5(c); (ii) the resolution of all Disputed Items by the Sellers and the Purchaser pursuant to Section 2.5(d)(ii); and (iii) the resolution of all Disputed Items pursuant to Section 2.5(d)(v) by the Accounting Referee. Within five (5) Business Days after the Final Working Capital Statement becomes or is deemed final and binding on the parties hereto11.3, ~~an adjustment to the Purchase Price and a payment by wire transfer in respect thereof described below shall be made as follows: (i) If the Closing Cash Adjustment is positive~~at which time, within five (5) Business Days following such resolution, (i) Seller shall pay the Adjustment Amount, to the extent it is determined to be negative after giving effect to such resolution of the ~~final determination of all amounts covered in the Initial Working Capital Statement~~Objections, ~~the~~ or (ii) Purchaser shall pay Seller any amounts determined to be due to Seller after giving effect to the ~~Sellers an amount~~ resolution of such Objections. (d) Within fifteen (15) days following receipt of the Adjustment Determination (the “Objection Period”), Seller shall inform Purchaser in writing of any objections to the Adjustment Determination (the “Objections”), setting forth written explanations of the Objections and the adjustments that Seller believes should be made. Following notice of the Objections, Purchaser shall have fifteen (15) days to review and respond in writing to the Objections, setting forth written explanations in those areas where it disagrees with the Objections. Any disputes remaining at such time shall be resolved in accordance with Section 11.3. (e) As used in this Section 1.9, the “Adjustment Amount” (which may be a positive or negative number) shall be equal to (i) the ~~Closing Cash Adjustment~~Selected Assets Value minus the Estimated SAV, ~~which amount shall be paid to each Seller based on his~~ offset by, or ~~its Pro Rata Share of the Closing Cash Adjustment by wire transfer to the Wire Transfer Instructions; or~~ in addition to, as applicable, (ii) If the ~~Closing Cash~~ Estimated SLA minus the Selected Liabilities Amount (the combination of (i) and (ii) being referred to hereafter as the “Primary Adjustment ~~is negative~~Amount,” which, ~~then an amount~~ if it be a negative number, shall not be greater than $750,000), further offset by, or in ~~cash equal to~~ addition to, as applicable, (iii) the ~~absolute~~ amount of interest paid, or that would have been paid, as the ~~Closing Cash Adjustment shall be paid to~~ case may be, on the Purchaser by Promissory Note had the ~~Escrow Agent from~~ Cash Component at the ~~Escrow Account~~time of Closing been based on the Selected Assets Value and Selected Liability Amounts instead of the Estimated SAV and Estimated SLA (hereafter the “Interest Adjustment Amount”), and (iv) any other amounts necessary to place the parties in the ~~event that~~ same position as if the Cash Component at the time of Closing ~~Cash Adjustment owed to~~ had been based on the Purchaser exceeds the Escrow Fund, the Purchaser may seek payment of any such excess directly from the Sellers. Any payment required under this Section 2.5(e)(ii) shall be made within five (5) Business Days Selected Assets Value and Selected Liability Amounts instead of the ~~final determination of all amounts covered in the Initial Working Capital Statement~~Estimated SAV and Estimated SLA. (f) ~~If the delivery deadline date for the Initial Working Capital Statement~~ A payment under either of paragraph (b) or ~~the Objection Deadline Date is a day that is not a Business Day, the applicable delivery deadline date~~ (c) of this Section shall be made via wire transfer of immediately available funds to an account or accounts designated by Purchaser or Seller, as applicable; provided, however, that in the ~~immediately following Business Day.~~event a Purchaser Promissory Note, or some portion thereof, remains outstanding at the time a payment under paragraph (b) or

Appears in 1 contract

Sources: Asset Purchase Agreement

Post-Closing Purchase Price Adjustments. (a) ~~Within ninety (90) days~~ As promptly as practicable after the Closing, but in any event not later than 30 Business Days after the Closing Date, the Purchaser shall prepare and deliver to the Sellers the Initial Working Capital Statement, which shall include reasonable detail supporting the Purchaser’s calculations set forth therein and reasonable detail supporting any change from the amounts set forth in the Estimated Working Capital Statement or the calculations set forth therein. (b) Subject to complying with the restrictions set forth in Section 5.1, at reasonable times during normal business hours during the 30-day period immediately following the Sellers’ receipt of the Initial Working Capital Statement, each Seller and his or its Representatives shall be permitted to review the records of TangenX relating to the Initial Working Capital Statement that are reasonably requested by such Seller, and the Purchaser shall make reasonably available to each Seller and his or its Representatives the individuals employed by TangenX and/or the Purchaser that were responsible for the preparation of the Initial Working Capital Statement in order to respond to the reasonable inquiries of such Seller related thereto. Any information provided to the Sellers pursuant to this Section 2.5 shall be considered Covered Information. (c) The Sellers shall deliver to the Purchaser by a balance sheet in respect of the ~~Objection Deadline~~ Businesses as of the Closing Date ~~either a notice indicating that~~ (the ~~Sellers accept~~ "CLOSING BALANCE SHEET"). The Closing Balance Sheet shall comply with the Initial Working Capital Statement (“Notice of Acceptance”) or a detailed statement describing the Sellers’ objections to the Initial Working Capital Statement (“Notice of Disagreement”); provided, that any objections must be on the basis that the amounts representations and warranties set forth in ~~the Initial Working Capital Statement (i~~Section 4.5(c) ~~were not determined~~ in accordance with the TangenX Accounting Practices (or in the case of Indebtedness of the types included in clauses (d), (f) and (h) of the definition of Indebtedness, GAAP) or otherwise not calculated in accordance with the applicable terms of this Agreement, or (ii) were arrived at based on mathematical or clerical error. If the Sellers deliver to the Purchaser a Notice of Acceptance, or the Sellers do not deliver a Notice of Disagreement on or before the Objection Deadline Date, then, effective as of the earlier of the date of delivery of such Notice of Acceptance and the end of the Objection Deadline Date, the Initial Working Capital Statement shall be deemed to be the Final Working Capital Statement. If the Sellers timely deliver a Notice of Disagreement, only those matters specified in such Notice of Disagreement shall be deemed to be in dispute (the “Disputed Items”), and all other matters included in the Initial Working Capital Statement shall be final, binding and conclusive upon the parties hereto. (d) The Disputed Items set forth on the Notice of Disagreement shall be resolved as follows: (i) The Sellers and the Purchaser shall first use commercially reasonable efforts to resolve such Disputed Items. (ii) Any resolution by the Sellers and the Purchaser as to such Disputed Items shall be final and binding on the parties hereto. (iii) If the Sellers and the Purchaser do not reach a resolution of all Disputed Items set forth on the Notice of Disagreement within thirty (30) days after delivery of such Notice of Disagreement, the Sellers and the Purchaser shall, within thirty (30) days following the expiration of such 30-day period, engage the Accounting Referee, pursuant to an engagement agreement executed by the Sellers, the Purchaser and the Accounting Referee, to resolve any Unresolved Objections. (iv) The Accounting Referee shall be instructed only to resolve the Unresolved Objections based on written information to be provided to, or presentations made to, the Accounting Referee by the Sellers and the Purchaser and shall be instructed not to otherwise investigate any other matter independently. The Sellers and the Purchaser shall request that the Accounting Referee make a final determination (which determination shall be binding on the parties hereto) of the Unresolved Objections within thirty (30) days from the date the Unresolved Objections and presentations were submitted to the Accounting Referee and such final determination shall be deemed the Final Working Capital Statementrespects. During the 30-day period following the Purchaser's receipt of the Closing Balance Sheet, the Purchaser and its independent auditors shall be permitted to review ~~by the Accounting Referee,~~ all relevant books and records of the Sellers and ~~the Purchaser shall each make available~~ their respective Subsidiaries, as well as, to the ~~Accounting Referee such individuals and such information~~extent reasonably available, ~~books and records as may be reasonably required by~~ any relevant auditor's working papers, relating to the ~~Accounting Referee to make its~~ Closing Balance Sheet. The Closing Balance Sheet shall become final ~~determination. (v) The resolution by the Accounting Referee of the Unresolved Objections shall be conclusive~~ and binding upon the parties hereto ~~absent manifest error or fraud. The parties hereto agree that~~ on the ~~procedure set forth in this Section 2.5(d~~30th day following the Purchaser's receipt thereof unless the Purchaser gives written notice of its disagreement with the Closing Balance Sheet (a "NOTICE OF DISAGREEMENT") ~~for resolving disputes with respect~~ to the ~~Working Capital Amount and~~ Sellers prior to such date. Any Notice of Disagreement shall specify in reasonable detail the ~~Cash and Cash Equivalents shall be the sole and exclusive method for resolving~~ nature of any ~~such disputes. (vi) The fees and expenses~~ disagreement so asserted. If a Notice of ~~the Accounting Referee will be allocated to and paid~~ Disagreement is received by the ~~Purchaser~~Sellers in a timely manner, on then the ~~one hand~~Closing Balance Sheet, ~~and~~ as revised to reflect the ~~Sellers, on the other hand, based upon the relative success (in terms of percentages~~resolution pursuant to Section 3.3(b) of the aggregate of each of the Purchaser’s and the Sellers’ claims, as determined by the Accounting Referee. (e) The Initial Working Capital Statement, including any modifications resulting from the resolution of any Disputed Items set forth disagreement expressed in the Notice of Disagreement, shall ~~be deemed to be the Final Working Capital Statement~~ become final and be binding on the ~~parties hereto for the purposes~~ earlier of ~~this Section 2.5 upon the earliest to occur of:~~ (iA) the delivery by the Sellers of the Notice of Acceptance or the failure of the Sellers to deliver the Notice of Disagreement by the Objection Deadline Date pursuant to Section 2.5(c); (ii) the resolution of all Disputed Items by date the Sellers and the Purchaser resolve in writing any differences they have with respect to the matters specified in the Notice of Disagreement or (B) the date any disputed matters are finally resolved in writing by the Accounting Firm (as defined below) pursuant to Section ~~2.5(d)(ii~~3.3(b)~~; and (iii)~~ . The date that the ~~resolution of all Disputed Items pursuant to Section 2.5(d)(v) by the Accounting Referee. Within five (5) Business Days after the Final Working Capital Statement~~ Closing Balance Sheet becomes ~~or is deemed~~ final and binding on in accordance with this paragraph is referred to as the "CLOSING BALANCE SHEET DATE". (b) During the 30-day period following delivery of a Notice of Disagreement, the Purchaser and the Sellers shall seek in good faith to resolve in writing any differences which they may have with respect to the matters specified in the Notice of Disagreement. Any and all matters which remain in dispute after such 30-day period and which were included in the Notice of Disagreement shall be submitted to PricewaterhouseCoopers LLP (the "ACCOUNTING FIRM") for resolution. The Purchaser and the Sellers shall jointly use all reasonable efforts to cause the Accounting Firm to render a decision within 30 days following submission of any disagreement to the Accounting Firm. The Purchaser and the Sellers agree that judgment may be entered upon the determination of the Accounting Firm in any court having jurisdiction over the party against which such determination is to be enforced. Each of the parties ~~hereto~~shall bear their own costs of dispute resolution under this Section 3.3(b), ~~an adjustment~~ and costs, fees and expenses of the Accounting Firm pursuant to this Section 3.3 shall be borne equally by the Purchaser and the Sellers. The provisions of Section 14.13 shall not apply to disputes submitted to the ~~Purchase Price~~ Accounting Firm in accordance with this Section 3.3(b) unless the Accounting Firm shall fail to resolve any such dispute within 180 days of submission. (c) Not later than 30 days after the Closing Balance Sheet Date, the Purchaser shall prepare (after consultation with the Sellers) and deliver to the Sellers a ~~payment by wire transfer in respect thereof described below shall be made as follows:~~statement (the "PURCHASE PRICE ADJUSTMENT STATEMENT") setting forth the following amounts (collectively, the "POST-CLOSING PURCHASE PRICE ADJUSTMENTS"; and, together with the Closing Date Adjustments, the "PURCHASE PRICE ADJUSTMENTS"): (i) If the Closing Cash Adjustment is positive, within five (5) Business Days of the final determination of all amounts covered in the Initial Working Capital Statement, the Purchaser shall pay to the Sellers an amount ~~equal to~~ (the ~~Closing Cash Adjustment~~"NWC ADJUSTMENT"), ~~which amount shall be paid to each Seller based on his~~ positive or ~~its Pro Rata Share~~ negative, determined by subtracting (x) the net working capital for the Businesses as of the Closing ~~Cash Adjustment by wire transfer to~~ Date calculated in accordance with the ~~Wire Transfer Instructions~~guidelines set forth in Schedule 3.3 based on the Closing Balance Sheet (the "NET WORKING CAPITAL") from (y) $0.00; orand (ii) ~~If the Closing Cash Adjustment is negative, then~~ an amount ~~in cash~~ (the "NPV ADJUSTMENT") equal to the ~~absolute amount~~ sum of the ~~Closing Cash Adjustment shall be paid to~~ following: (w) the ~~Purchaser by~~ Co-Investment Adjustment, plus (x) the ~~Escrow Agent from~~ Portfolio Liquidation Fee, plus (y) the ~~Escrow Account~~RESF Liquidation Fee, ~~and in~~ plus (z) the ~~event that the Closing Cash Adjustment owed to the Purchaser exceeds the Escrow Fund, the Purchaser may seek payment of any~~ CMBS Liquidation Fee (as such excess directly from the Sellers. Any payment required under this Section 2.5(e)(ii) shall be made within five (5) Business Days of the final determination of all amounts covered in the Initial Working Capital Statementterms are defined below). (f) If the delivery deadline date for the Initial Working Capital Statement or the Objection Deadline Date is a day that is not a Business Day, the applicable delivery deadline date shall be the immediately following Business Day.

Appears in 1 contract

Sources: Asset Purchase Agreement (Amresco Inc)

Post-Closing Purchase Price Adjustments. (a) ~~Within ninety (90) days~~ [**] after the Closing Date, the Purchaser shall ~~prepare and~~ deliver to the ~~Sellers~~ Seller the ~~Initial Working Capital~~ Closing Adjustment Statement~~, which shall include reasonable detail supporting~~ . The Purchaser may not modify the ~~Purchaser’s calculations set forth therein and reasonable detail supporting any change from~~ Closing Adjustment Statement once it has been delivered to the ~~amounts set forth~~ Seller in ~~the Estimated Working Capital Statement or the calculations set forth therein~~accordance with this Section 3.4(a). (b) ~~Subject to complying with~~ For [**] following the ~~restrictions set forth in Section 5.1~~delivery of the Closing Adjustment Statement (the “Review Period”), at the Purchaser shall, and shall cause its Affiliates to, permit the Seller and its Representatives reasonable ~~times~~ access, during normal business hours ~~during~~ upon reasonable advance notice and subject to a requirement to enter into any reasonable confidentiality agreements, to the ~~30-day period immediately following the Sellers’ receipt of the Initial Working Capital Statement, each Seller~~ relevant financial books and ~~his or its Representatives shall be permitted to review the~~ records ~~of TangenX~~ relating to the Initial Working Capital Statement that are reasonably requested by such Seller, and the Purchaser shall make reasonably available to each Seller and his or its Representatives the individuals employed by TangenX and/or the Purchaser that were responsible Transferred Assets solely for the ~~preparation~~ purposes of the ~~Initial Working Capital Statement~~ Seller’s exercise of its review and objection rights contemplated in ~~order to respond to the reasonable inquiries of such Seller related thereto. Any information provided to the Sellers pursuant to~~ this Section ~~2.5 shall be considered Covered Information~~3.4. (c) The ~~Sellers~~ Seller shall ~~deliver to~~ notify the Purchaser within the Review Period if it objects to any matter set forth in the Closing Adjustment Statement delivered by the ~~Objection Deadline Date either~~ Purchaser, which notice shall include a ~~notice indicating that the Sellers accept the Initial Working Capital Statement (“Notice of Acceptance”) or a~~ reasonably detailed statement describing the ~~Sellers’ objections~~ basis for such objection which, for the avoidance of doubt, can include a re-calculation of any adjustments made to the ~~Initial Working Capital Statement~~ Purchase Price based on further information received after the Closing (a “Notice of Disagreement”); provided, that any objections must be on the basis that the amounts set forth in the Initial Working Capital Statement (i) were not determined in accordance with the TangenX Accounting Practices (or in the case of Indebtedness of the types included in clauses (d), (f) and (h) of the definition of Indebtedness, GAAP) or otherwise not calculated in accordance with the applicable terms of this Agreement, or (ii) were arrived at based on mathematical or clerical error. If ~~the Sellers deliver to the Purchaser a Notice of Acceptance, or the Sellers do not deliver a~~ no Notice of Disagreement ~~on or before~~ is received by the ~~Objection Deadline Date~~Purchaser within the Review Period, ~~then, effective as of~~ then the ~~earlier of the date of delivery of such Notice of Acceptance and the end of the Objection Deadline Date, the Initial Working Capital~~ Closing Adjustment Statement shall be deemed to be have been accepted by the ~~Final Working Capital Statement~~Parties and will become final and binding upon the Parties. If the ~~Sellers timely deliver~~ Seller delivers a Notice of ~~Disagreement~~Disagreement to the Purchaser within the Review Period, only those matters specified in such Notice of Disagreement shall be deemed to be in dispute (~~the~~ such matters, “Disputed Items”). Any Notice of Disagreement shall set forth in reasonable detail each Disputed Item, the disputed amount of each Disputed Item, the Seller’s alternative amount of each Disputed Item and ~~all other matters included~~ the basis for such alternative calculation and the Sellers alternative calculation of any such Disputed Item. Any component of the calculations set forth in the ~~Initial Working Capital~~ Closing Adjustment Statement that is a Disputed Item in a Notice of Disagreement delivered to the Purchaser within the Review Period shall be ~~final,~~ final and binding ~~and conclusive~~ upon the ~~parties hereto~~Parties, unless the resolution of any Disputed Item affects an undisputed component of the Closing Adjustment Statement, in which case such undisputed component shall, notwithstanding the failure to object to such component in the Notice of Disagreement, be considered a Disputed Item to the extent affected by such resolved Disputed Item. (d) ~~The~~ Any Disputed ~~Items set forth on the Notice of Disagreement~~ Item shall be resolved as follows: (i) The ~~Sellers~~ Seller and the Purchaser shall first ~~use commercially reasonable efforts~~ negotiate in good faith to resolve such Disputed ~~Items. (ii)~~ Item during the [**] delivery of a Notice of Disagreement. Any resolution agreed to in writing by the ~~Sellers~~ Seller and the Purchaser as to such Disputed ~~Items~~ Item shall be final and binding on upon the ~~parties hereto~~Parties. (~~iii~~ii) If the ~~Sellers~~ Seller and the Purchaser do not reach a resolution of ~~all~~ such Disputed ~~Items set forth on the~~ Item [**] after delivery of any Notice of Disagreement within thirty (30) days after delivery of such Notice of Disagreement, the Sellers and the Purchaser shall, within thirty (30) days following the expiration of such 30-day period, engage the Accounting Referee, pursuant to an engagement agreement executed by the Sellers, the Purchaser and the Accounting Referee, to resolve any Unresolved Objections. (iv) The Accounting Referee shall be instructed only to resolve the Unresolved Objections based on written information to be provided to, or presentations made to, the Accounting Referee by the Sellers and the Purchaser and shall be instructed not to otherwise investigate any other matter independently. The Sellers and the Purchaser shall request that the Accounting Referee make a final determination (which determination shall be binding on the parties hereto) of the Unresolved Objections within thirty (30) days from the date the Unresolved Objections and presentations were submitted to the Accounting Referee and such final determination shall be deemed the Final Working Capital Statement. During the 30-day review by the Accounting Referee, the Sellers and the Purchaser shall each make available to the Accounting Referee such individuals and such information, books and records as may be reasonably required by the Accounting Referee to make its final determination. (v) The resolution by the Accounting Referee of the Unresolved Objections shall be conclusive and binding upon the parties hereto absent manifest error or fraud. The parties hereto agree that the procedure set forth in this Section 2.5(d) for resolving disputes with respect to the Working Capital Amount and the Cash and Cash Equivalents shall be the sole and exclusive method for resolving any such disputes. (vi) The fees and expenses of the Accounting Referee will be allocated to and paid by the Purchaser, on the one hand, and the Sellers, on the other hand, based upon the relative success (in terms of percentages) of the aggregate of each of the Purchaser’s and the Sellers’ claims, as determined by the Accounting Referee. (e) The Initial Working Capital Statement, including any modifications resulting from the resolution of any Disputed Items set forth in the Notice of Disagreement, shall be deemed to be the Final Working Capital Statement and be binding on the parties hereto for the purposes of this Section 2.5 upon the earliest to occur of: (i) the delivery by the Sellers of the Notice of Acceptance or the failure of the Sellers to deliver the Notice of Disagreement by the Objection Deadline Date pursuant to Section ~~2.5(c~~3.4(c); , then any such unresolved objections (iithe “Unresolved Objections”) may be resolved conclusively and bindingly for the ~~resolution of all Disputed Items~~ Parties through a determination made by the ~~Sellers~~ Neutral Accounting Firm (acting solely as an expert and the Purchaser pursuant to Section 2.5(d)(ii); and (iii) the resolution of all Disputed Items pursuant to Section 2.5(d)(v) by the Accounting Referee. Within five (5) Business Days after the Final Working Capital Statement becomes or is deemed final and binding on the parties hereto, an adjustment to the Purchase Price and a payment by wire transfer in respect thereof described below shall be made not as follows: (i) If the Closing Cash Adjustment is positive, within five (5) Business Days of the final determination of all amounts covered in the Initial Working Capital Statement, the Purchaser shall pay to the Sellers an amount equal to the Closing Cash Adjustment, which amount shall be paid to each Seller based on his or its Pro Rata Share of the Closing Cash Adjustment by wire transfer to the Wire Transfer Instructions; or (ii) If the Closing Cash Adjustment is negative, then an amount in cash equal to the absolute amount of the Closing Cash Adjustment shall be paid to the Purchaser by the Escrow Agent from the Escrow Account, and in the event that the Closing Cash Adjustment owed to the Purchaser exceeds the Escrow Fund, the Purchaser may seek payment of any such excess directly from the Sellers. Any payment required under this Section 2.5(e)(ii) shall be made within five (5) Business Days of the final determination of all amounts covered in the Initial Working Capital Statement. (f) If the delivery deadline date for the Initial Working Capital Statement or the Objection Deadline Date is a day that is not a Business Day, the applicable delivery deadline date shall be the immediately following Business Day.an

Appears in 1 contract

Sources: Asset Purchase Agreement (Alkermes Plc.)

Post-Closing Purchase Price Adjustments. As soon as reasonably practicable after the Closing but not later than the 90th day following the Closing Date, Seller shall prepare and deliver to Buyer a statement setting forth the final calculation of the Purchase Price and showing the calculation of each adjustment, based, to the extent possible, on actual credits, charges, receipts and other items before and after the Effective Time. Seller shall at Buyer’s request supply reasonable documentation available to support any credit, charge, receipt or other item. As soon as reasonably practicable but not later than the 30th day following receipt of Seller’s statement hereunder, Buyer shall deliver to Seller a written report containing any changes that Buyer proposes be made to such statement. The Parties shall undertake to agree on the final statement of the Purchase Price no later than one hundred twenty (~~a) Within ninety (90~~120) days after the Closing Date (the “Final Settlement Date, the Purchaser shall prepare and deliver to the Sellers the Initial Working Capital Statement, which shall include reasonable detail supporting the Purchaser’s calculations set forth therein and reasonable detail supporting any change from the amounts set forth in the Estimated Working Capital Statement or the calculations set forth therein. (b) Subject to complying with the restrictions set forth in Section 5.1, at reasonable times during normal business hours during the 30-day period immediately following the Sellers’ receipt of the Initial Working Capital Statement, each ”). If Seller and his or its Representatives shall be permitted to review the records of TangenX relating to the Initial Working Capital Statement that are reasonably requested by such Seller, and the Purchaser shall make reasonably available to each Seller and his or its Representatives the individuals employed by TangenX and/or the Purchaser that were responsible for the preparation of the Initial Working Capital Statement in order to respond to the reasonable inquiries of such Seller related thereto. Any information provided to the Sellers pursuant to this Section 2.5 shall be considered Covered Information. (c) The Sellers shall deliver to the Purchaser by the Objection Deadline Date either a notice indicating that the Sellers accept the Initial Working Capital Statement (“Notice of Acceptance”) or a detailed statement describing the Sellers’ objections to the Initial Working Capital Statement (“Notice of Disagreement”); provided, that any objections must be on the basis that the amounts set forth in the Initial Working Capital Statement (i) were Buyer have not determined in accordance with the TangenX Accounting Practices (or in the case of Indebtedness of the types included in clauses (d), (f) and (h) of the definition of Indebtedness, GAAP) or otherwise not calculated in accordance with the applicable terms of this Agreement, or (ii) were arrived at based on mathematical or clerical error. If the Sellers deliver to the Purchaser a Notice of Acceptance, or the Sellers do not deliver a Notice of Disagreement so agreed on or before the ~~Objection Deadline Date, then, effective as of the earlier of the date of delivery of such Notice of Acceptance and the end of the Objection Deadline~~ Final Settlement Date, the ~~Initial Working Capital Statement~~ matters that remain in dispute shall be ~~deemed~~ submitted to ~~be the Final Working Capital Statement. If the Sellers timely deliver a Notice of Disagreement, only those matters specified in such Notice of Disagreement shall be deemed to be in dispute~~ an arbitrator (the “~~Disputed Items~~Accountant”), ) for review and ~~all other matters included in the Initial Working Capital Statement~~ resolution. The Accountant shall be ~~final, binding and conclusive upon the parties hereto. (d) The Disputed Items set forth on the Notice of Disagreement~~ a nationally recognized independent public accounting firm as shall be ~~resolved as follows: (i)~~ agreed upon by Buyer and Seller in writing. The ~~Sellers~~ Accountant shall render a decision resolving the matters in dispute, in a manner consistent with the provisions of Sections 3, 5, 6, 13 and 17 and the Purchaser shall first use commercially reasonable efforts to resolve such Disputed Items. (ii) Any resolution by the Sellers and the Purchaser as to such Disputed Items shall be final and binding on the parties hereto. (iii) If the Sellers and the Purchaser do not reach a resolution other provisions of ~~all Disputed Items set forth on the Notice of Disagreement within thirty (30) days after delivery of such Notice of Disagreement, the Sellers and the Purchaser shall~~this Agreement, within thirty (30) days following their submission to the ~~expiration~~ Accountant. The determination of ~~such 30-day period, engage~~ the ~~Accounting Referee, pursuant to an engagement agreement executed by the Sellers, the Purchaser and the Accounting Referee, to resolve any Unresolved Objections. (iv) The Accounting Referee~~ Accountant shall be ~~instructed only to resolve the Unresolved Objections based on written information to be provided to, or presentations made to, the Accounting Referee by the Sellers~~ final and the Purchaser and shall be instructed not to otherwise investigate any other matter independently. The Sellers and the Purchaser shall request that the Accounting Referee make a final determination (which determination shall be binding on the parties hereto) of the Unresolved Objections within thirty (30) days from the date the Unresolved Objections and presentations were submitted to the Accounting Referee and such final determination shall be deemed the Final Working Capital Statement. During the 30-day review by the Accounting Referee, the Sellers and the Purchaser shall each make available to the Accounting Referee such individuals and such information, books and records as may be reasonably required by the Accounting Referee to make its final determination. (v) The resolution by the Accounting Referee of the Unresolved Objections shall be conclusive and binding upon the parties hereto absent manifest error or fraudparties. The ~~parties hereto agree that~~ cost of any arbitration (including the procedure set forth in this Section 2.5(d) for resolving disputes with respect to the Working Capital Amount and the Cash and Cash Equivalents shall be the sole and exclusive method for resolving any such disputes. (vi) The fees and expenses of the ~~Accounting Referee will~~ Accountant) pursuant to this Section 16(b) shall be ~~allocated to~~ borne one-half by Buyer and ~~paid~~ one-half by Seller. If the ~~Purchaser, on the one hand, and the Sellers, on the other hand, based upon the relative success (in terms of percentages) of the aggregate of each of the Purchaser’s and the Sellers’ claims,~~ Purchase Price as ~~determined by the Accounting Referee. (e) The Initial Working Capital Statement, including any modifications resulting from the resolution of any Disputed Items set forth~~ adjusted in the ~~Notice of Disagreement~~final settlement statement exceeds the Purchase Price received by Seller at Closing, Buyer shall ~~be deemed~~ pay to be Seller the ~~Final Working Capital Statement and be binding on the parties hereto for the purposes of this Section 2.5 upon the earliest to occur of:~~ difference within three (i) the delivery by the Sellers of the Notice of Acceptance or the failure of the Sellers to deliver the Notice of Disagreement by the Objection Deadline Date pursuant to Section 2.5(c); (ii) the resolution of all Disputed Items by the Sellers and the Purchaser pursuant to Section 2.5(d)(ii); and (iii) the resolution of all Disputed Items pursuant to Section 2.5(d)(v) by the Accounting Referee. Within five (53) Business Days after the Final ~~Working Capital Statement becomes or is deemed final and binding on the parties hereto, an adjustment to~~ Settlement Date. If the Purchase Price ~~and a payment~~ received by ~~wire transfer~~ Seller at Closing exceeds the Purchase Price as adjusted in ~~respect thereof described below shall be made as follows:~~ the final settlement statement, Seller will pay to Buyer the difference within three (~~i) If the Closing Cash Adjustment is positive, within five (5~~3) Business Days of after the ~~final determination of all amounts covered in~~ Final Settlement Date. Any post-Closing payment made pursuant to this Section 16(b) shall bear simple interest, compounded annually, at a variable rate per annum (based on a 365-day year) equal to 3.25% from the ~~Initial Working Capital Statement, the Purchaser shall pay~~ Closing Date to the ~~Sellers an amount equal to the Closing Cash Adjustment, which amount shall be paid to each Seller based on his or its Pro Rata Share~~ date of the Closing Cash Adjustment by wire transfer to the Wire Transfer Instructions; or (ii) If the Closing Cash Adjustment is negative, then an amount in cash equal to the absolute amount of the Closing Cash Adjustment shall be paid to the Purchaser by the Escrow Agent from the Escrow Account, and in the event that the Closing Cash Adjustment owed to the Purchaser exceeds the Escrow Fund, the Purchaser may seek payment of any such excess directly from the Sellers. Any payment required under this Section 2.5(e)(ii) shall be made within five (5) Business Days of the final determination of all amounts covered in the Initial Working Capital Statementpayment. (f) If the delivery deadline date for the Initial Working Capital Statement or the Objection Deadline Date is a day that is not a Business Day, the applicable delivery deadline date shall be the immediately following Business Day.

Appears in 1 contract

Sources: Purchase and Sale Agreement (Abraxas Petroleum Corp)

Post-Closing Purchase Price Adjustments. (a) ~~Within ninety~~ After the Closing Date, the Merger Consideration for Common Equity shall be increased or reduced as set forth in Section 2.13(e) hereof. Any increase or decrease in the Merger Consideration for Common Equity pursuant to this Section 2.13 shall be referred to as a “Purchase Price Adjustment”. (90b) No later than 60 days after the Closing Date, ~~the Purchaser~~ Parent shall ~~prepare and~~ deliver to the ~~Sellers~~ Holder Representative (i) a balance sheet of the ~~Initial Working Capital Statement~~Company as of the close of business on the day prior to the Closing Date (the “Closing Date Balance Sheet”), which shall ~~include reasonable detail supporting~~ be prepared using the ~~Purchaser’s calculations set forth therein~~ same accounting methods, policies, practices and ~~reasonable detail supporting any change from the amounts set forth~~ procedures, with consistent classifications, judgments and estimation methodology, as was used in the ~~Estimated Working Capital Statement~~ Reference Balance Sheet and will not include any changes in assets or the calculations set forth therein. (b) Subject to complying with the restrictions set forth in Section 5.1, at reasonable times during normal business hours during the 30-day period immediately following the Sellers’ receipt liabilities as a result of purchase accounting adjustments arising from or resulting as a consequence of the ~~Initial~~ transactions contemplated hereby, and (ii) a separate statement calculating Net Working ~~Capital Statement~~Capital, ~~each Seller and his or its Representatives~~ which shall be ~~permitted to review the records of TangenX relating to the Initial Working Capital Statement that are reasonably requested by such Seller~~calculated in accordance with Exhibit E, and Net Debt based on the ~~Purchaser shall make reasonably available~~ Closing Date Balance Sheet, and showing any calculations with respect to ~~each Seller and his or its Representatives~~ any proposed Purchase Price Adjustment (the individuals employed by TangenX and/or the Purchaser that were responsible for the preparation of the Initial Working Capital Statement in order to respond to the reasonable inquiries of such Seller related thereto. Any information provided to the Sellers pursuant to this Section 2.5 shall be considered Covered Information“Final Adjustment Schedule”). (c) ~~The Sellers~~ Parent shall ~~deliver~~ cooperate with the Holder Representative in connection with its review of the Final Adjustment Schedule, including, without limitation, providing the Holder Representative and its accountants reasonable access during business hours to ~~the Purchaser by the Objection Deadline Date either a notice indicating that the Sellers accept the Initial Working Capital Statement~~ materials (~~“Notice of Acceptance”~~including accountants’ work papers) or a detailed statement describing the Sellers’ objections to the Initial Working Capital Statement (“Notice of Disagreement”); provided, that any objections must be on the basis that the amounts set forth used in the ~~Initial Working Capital Statement~~ preparation of the Final Adjustment Schedule. At the request of the Holder Representative, Parent and the Company shall give the Holder Representative and its accountants (i) ~~were not determined in accordance with the TangenX Accounting Practices (or in the case of Indebtedness~~ access during business hours to all personnel, books and records of the ~~types included in clauses (d)~~Company that are reasonably requested, ~~(f)~~ and ~~(h) of the definition of Indebtedness, GAAP) or otherwise not calculated in accordance with the applicable terms of this Agreement, or~~ (ii) ~~were arrived at based on mathematical~~ all reasonable opportunity to ask questions of and receive answers from Parent and the Company, in each case as is reasonably necessary to assist the Holder Representative in the review of the Closing Date Balance Sheet and the Final Adjustment Schedule. The Holder Representative shall, within 30 days following its receipt of the Closing Date Balance Sheet and the Final Adjustment Schedule, accept or ~~clerical error~~reject any Purchase Price Adjustment submitted by Parent. If the ~~Sellers deliver~~ Holder Representative disagrees with such calculation, it shall give written notice to ~~the Purchaser a Notice of Acceptance, or the Sellers do not deliver a Notice of Disagreement on or before the Objection Deadline Date, then, effective as of the earlier of the date of delivery~~ Parent of such ~~Notice~~ disagreement and any reason therefor within such 30-day period. Should the Holder Representative fail to notify Parent of ~~Acceptance and the end of the Objection Deadline Date~~a disagreement within such 30-day period, the ~~Initial Working Capital Statement~~ Final Adjustment Schedule shall be deemed to be final, binding and conclusive on the ~~Final Working Capital Statement~~parties hereto. If In the ~~Sellers timely deliver~~ event of such a ~~Notice of Disagreement~~dispute, ~~only those matters specified in such Notice of Disagreement~~ the Holder Representative and Parent shall ~~be deemed~~ attempt to ~~be in dispute (the “Disputed Items”)~~reconcile their differences, and ~~all other matters included in the Initial Working Capital Statement~~ any resolution by them as to any disputed amounts shall be final, binding and conclusive ~~upon~~ on the parties hereto. If the Holder Representative and Parent are unable to reach a resolution with such effect within 30 days after the receipt by Parent of the Holder Representative’s written notice of dispute, the Holder Representative and Parent shall submit the items remaining in dispute for resolution to an independent accounting firm of national or regional reputation mutually reasonably acceptable to Parent and the Holder Representative (the “Arbitrator”). The parties will use their commercially reasonable efforts to cause the Arbitrator to issue its report as to the disputes with respect to the Closing Date Balance Sheet and the Final Adjustment Schedule and the determination of the Purchase Price Adjustment within 60 days after such dispute is referred to the Arbitrator. Parent and the Holder Representative, on behalf of the Equityholders, shall bear all costs and expenses incurred by them in connection with such arbitration, except that the fees and expenses of the Arbitrator hereunder shall be borne by Parent and the Holder Representative, on behalf of the Equityholders, in the same proportion that the aggregate amount of such remaining disputed items so submitted to the Arbitrator that is unsuccessfully disputed by each such party (as finally determined by the Arbitrator) bears to the total amount of such remaining disputed items so submitted. This provision for arbitration shall be specifically enforceable by the parties and the decision of the Arbitrator in accordance with the provisions hereof shall be final and binding with respect to the matters so arbitrated and shall be deemed to be an arbitral award on which judgment may be entered by any court of competent jurisdiction. (d) The Disputed Items set forth on the Notice of Disagreement shall be resolved as follows: (i) The Sellers and the Purchaser shall first use commercially reasonable efforts to resolve such Disputed Items. (ii) Any resolution by the Sellers and the Purchaser as to such Disputed Items shall be final and binding on the parties hereto. (iii) If the Sellers and the Purchaser do not reach a resolution of all Disputed Items set forth on the Notice of Disagreement within thirty (30) days after delivery of such Notice of Disagreement, the Sellers and the Purchaser shall, within thirty (30) days following the expiration of such 30-day period, engage the Accounting Referee, pursuant to an engagement agreement executed by the Sellers, the Purchaser and the Accounting Referee, to resolve any Unresolved Objections. (iv) The Accounting Referee shall be instructed only to resolve the Unresolved Objections based on written information to be provided to, or presentations made to, the Accounting Referee by the Sellers and the Purchaser and shall be instructed not to otherwise investigate any other matter independently. The Sellers and the Purchaser shall request that the Accounting Referee make a final determination (which determination shall be binding on the parties hereto) of the Unresolved Objections within thirty (30) days from the date the Unresolved Objections and presentations were submitted to the Accounting Referee and such final determination Final Adjustment Schedule shall be deemed the Final Working Capital Statement. During the 30-day review by the Accounting Referee, the Sellers and the Purchaser shall each make available to the Accounting Referee such individuals and such information, books and records as may be reasonably required by the Accounting Referee to make its final determination. (v) The resolution by the Accounting Referee of the Unresolved Objections shall be conclusive and binding upon the parties hereto absent manifest error or fraud. The parties hereto agree that the procedure set forth in this Section 2.5(d) for resolving disputes with respect to the Working Capital Amount and the Cash and Cash Equivalents shall be the sole and exclusive method for resolving any such disputes. (vi) The fees and expenses of the Accounting Referee will be allocated to and paid by the Purchaser, on the one hand, and the Sellers, on the other hand, based upon the relative success (in terms of percentages) of the aggregate of each of the Purchaser’s and the Sellers’ claims, as determined by the Accounting Referee. (e) The Initial Working Capital Statement, including any modifications resulting from the resolution of any Disputed Items set forth in the Notice of Disagreement, shall be deemed to be the Final Working Capital Statement and be binding on the parties hereto for the purposes of this Section ~~2.5~~ 2.13 upon the earliest ~~to occur of:~~ of (i) the ~~delivery by the Sellers of the Notice of Acceptance or the~~ failure of the ~~Sellers~~ Holder Representative to ~~deliver~~ notify Parent of a dispute within 30 days of Parent’s delivery of the ~~Notice of Disagreement by~~ Closing Date Balance Sheet and the ~~Objection Deadline Date pursuant~~ Final Adjustment Schedule to ~~Section 2.5(c);~~ the Holder Representative, (ii) the resolution of all ~~Disputed Items by the Sellers and the Purchaser~~ disputes, pursuant to Section ~~2.5(d)(ii~~2.13(c); , by the Holder Representative and Parent or (iii) the resolution of all ~~Disputed Items~~ disputes, pursuant to Section ~~2.5(d)(v)~~ 2.13(c), by the ~~Accounting Referee. Within five~~ Arbitrator. (5e) ~~Business Days after~~ Upon resolution of the Final ~~Working Capital Statement becomes or is deemed final~~ Adjustment Schedule in accordance with Sections 2.13(c) and ~~binding on~~ (d), the ~~parties hereto, an adjustment to the Purchase Price and a payment by wire transfer in respect thereof described below~~ Merger Consideration for Common Equity shall be ~~made as follows~~recalculated and the following adjustments made: (i) If the ~~Closing Cash~~ Merger Consideration for Common Equity calculated using the Net Working Capital and Net Debt shown on the Final Adjustment Schedule is ~~positive~~greater than the Merger Consideration for Common Equity calculated using the amounts of Estimated Net Working Capital Amount and Estimated Net Debt, ~~within five (5) Business Days~~ Parent shall pay or cause to be paid to the Payment Agent, for the benefit of the ~~final determination of all amounts covered in the Initial Working Capital Statement~~Equityholders, the ~~Purchaser~~ amount of the difference (the “Final Adjustment Amount”), by wire transfer in immediately available funds; provided, however, that the portion of the Final Adjustment Amount that is to be paid in consideration of the In-the-Money Options shall ~~pay~~ be paid directly by Parent or the Surviving Corporation to the ~~Sellers an amount equal to~~ former holders of such In-the-Money Options (less any applicable withholding taxes), and the ~~Closing Cash Adjustment, which amount~~ balance shall be paid to ~~each Seller based on his or its Pro Rata Share of~~ the ~~Closing Cash Adjustment by wire transfer to the Wire Transfer Instructions; or~~Payment Agent. (ii) If the ~~Closing Cash~~ Merger Consideration for Common Equity calculated using the Net Working Capital and Net Debt shown on the Final Adjustment Schedule is ~~negative~~less than the Merger Consideration for Common Equity calculated using the amounts of Estimated Net Working Capital and Estimated Net Debt, ~~then an amount in cash equal to~~ the ~~absolute amount of the Closing Cash Adjustment~~ parties shall ~~be paid to the Purchaser by~~ cause the Escrow Agent to promptly release to Parent from the Escrow ~~Account, and in~~ Amount (excluding the ~~event that the Closing Cash Adjustment owed~~ Reserve Amount) an amount equal to ~~the Purchaser exceeds the Escrow Fund, the Purchaser may seek payment of any~~ such excess directly from the Sellers. Any payment required under this Section 2.5(e)(ii) shall be made within five (5) Business Days of the final determination of all amounts covered in the Initial Working Capital Statementdifference. (f) ~~If the delivery deadline date for the Initial Working Capital Statement or the Objection Deadline Date is a day that is not a Business Day, the applicable delivery deadline date~~ Final amounts due hereunder shall be paid no later than five Business Days following the ~~immediately following Business Day~~final resolution of the Final Adjustment Schedule as set forth in Section 2.13(d).

Appears in 1 contract

Sources: Agreement and Plan of Merger (Neustar Inc)

Post-Closing Purchase Price Adjustments. As soon as reasonably practicable after the Closing but not later than the 90th day following the Closing Date, Seller shall prepare and deliver to Buyer a statement setting forth the final calculation of the Purchase Price and showing the calculation of each adjustment, based, to the extent possible, on actual credits, charges, receipts and other items before and after the Effective Time. Seller shall at Buyer’s request supply reasonable documentation available to support any credit, charge, receipt or other item. As soon as reasonably practicable but not later than the 30th day following receipt of Seller’s statement hereunder, Buyer shall deliver to Seller a written report containing any changes that Buyer proposes be made to such statement. The Parties shall undertake to agree on the final statement of the Purchase Price no later than one hundred twenty (~~a) Within ninety (90~~120) days after the Closing Date (the “Final Settlement Date, the Purchaser shall prepare and deliver to the Sellers the Initial Working Capital Statement, which shall include reasonable detail supporting the Purchaser’s calculations set forth therein and reasonable detail supporting any change from the amounts set forth in the Estimated Working Capital Statement or the calculations set forth therein. (b) Subject to complying with the restrictions set forth in Section 5.1, at reasonable times during normal business hours during the 30-day period immediately following the Sellers’ receipt of the Initial Working Capital Statement, each ”). If Seller and his or its Representatives shall be permitted to review the records of TangenX relating to the Initial Working Capital Statement that are reasonably requested by such Seller, and the Purchaser shall make reasonably available to each Seller and his or its Representatives the individuals employed by TangenX and/or the Purchaser that were responsible for the preparation of the Initial Working Capital Statement in order to respond to the reasonable inquiries of such Seller related thereto. Any information provided to the Sellers pursuant to this Section 2.5 shall be considered Covered Information. (c) The Sellers shall deliver to the Purchaser by the Objection Deadline Date either a notice indicating that the Sellers accept the Initial Working Capital Statement (“Notice of Acceptance”) or a detailed statement describing the Sellers’ objections to the Initial Working Capital Statement (“Notice of Disagreement”); provided, that any objections must be on the basis that the amounts set forth in the Initial Working Capital Statement (i) were Buyer have not determined in accordance with the TangenX Accounting Practices (or in the case of Indebtedness of the types included in clauses (d), (f) and (h) of the definition of Indebtedness, GAAP) or otherwise not calculated in accordance with the applicable terms of this Agreement, or (ii) were arrived at based on mathematical or clerical error. If the Sellers deliver to the Purchaser a Notice of Acceptance, or the Sellers do not deliver a Notice of Disagreement so agreed on or before the ~~Objection Deadline Date, then, effective as of the earlier of the date of delivery of such Notice of Acceptance and the end of the Objection Deadline~~ Final Settlement Date, the ~~Initial Working Capital Statement~~ matters that remain in dispute shall be ~~deemed~~ submitted to ~~be the Final Working Capital Statement. If the Sellers timely deliver a Notice of Disagreement, only those matters specified in such Notice of Disagreement shall be deemed to be in dispute~~ an arbitrator (the “~~Disputed Items~~Accountant”), ) for review and ~~all other matters included in the Initial Working Capital Statement~~ resolution. The Accountant shall be ~~final, binding and conclusive upon the parties hereto. (d) The Disputed Items set forth on the Notice of Disagreement~~ a nationally recognized independent public accounting firm as shall be ~~resolved as follows: (i)~~ agreed upon by Buyer and Seller in writing. The ~~Sellers~~ Accountant shall render a decision resolving the matters in dispute, in a manner consistent with the provisions of Sections 3, 5, 6, 13 and 17 and the Purchaser shall first use commercially reasonable efforts to resolve such Disputed Items. (ii) Any resolution by the Sellers and the Purchaser as to such Disputed Items shall be final and binding on the parties hereto. (iii) If the Sellers and the Purchaser do not reach a resolution other provisions of ~~all Disputed Items set forth on the Notice of Disagreement within thirty (30) days after delivery of such Notice of Disagreement, the Sellers and the Purchaser shall~~this Agreement, within thirty (30) days following their submission to the ~~expiration~~ Accountant. The determination of ~~such 30-day period, engage~~ the ~~Accounting Referee, pursuant to an engagement agreement executed by the Sellers, the Purchaser and the Accounting Referee, to resolve any Unresolved Objections. (iv) The Accounting Referee~~ Accountant shall be ~~instructed only to resolve the Unresolved Objections based on written information to be provided to, or presentations made to, the Accounting Referee by the Sellers~~ final and the Purchaser and shall be instructed not to otherwise investigate any other matter independently. The Sellers and the Purchaser shall request that the Accounting Referee make a final determination (which determination shall be binding on the parties hereto) of the Unresolved Objections within thirty (30) days from the date the Unresolved Objections and presentations were submitted to the Accounting Referee and such final determination shall be deemed the Final Working Capital Statement. During the 30-day review by the Accounting Referee, the Sellers and the Purchaser shall each make available to the Accounting Referee such individuals and such information, books and records as may be reasonably required by the Accounting Referee to make its final determination. (v) The resolution by the Accounting Referee of the Unresolved Objections shall be conclusive and binding upon the parties hereto absent manifest error or fraudparties. The ~~parties hereto agree that~~ cost of any arbitration (including the procedure set forth in this Section 2.5(d) for resolving disputes with respect to the Working Capital Amount and the Cash and Cash Equivalents shall be the sole and exclusive method for resolving any such disputes. (vi) The fees and expenses of the ~~Accounting Referee will~~ Accountant) pursuant to this Section 16(b) shall be ~~allocated to~~ borne one-half by Buyer and ~~paid~~ one-half by Seller. If the ~~Purchaser, on the one hand, and the Sellers, on the other hand, based upon the relative success (in terms of percentages) of the aggregate of each of the Purchaser’s and the Sellers’ claims,~~ Purchase Price as ~~determined by the Accounting Referee. (e) The Initial Working Capital Statement, including any modifications resulting from the resolution of any Disputed Items set forth~~ adjusted in the ~~Notice of Disagreement~~final settlement statement exceeds the Purchase Price received by Seller at Closing, Buyer shall ~~be deemed~~ pay to be Seller the ~~Final Working Capital Statement and be binding on the parties hereto for the purposes of this Section 2.5 upon the earliest to occur of:~~ difference within three (i) the delivery by the Sellers of the Notice of Acceptance or the failure of the Sellers to deliver the Notice of Disagreement by the Objection Deadline Date pursuant to Section 2.5(c); (ii) the resolution of all Disputed Items by the Sellers and the Purchaser pursuant to Section 2.5(d)(ii); and (iii) the resolution of all Disputed Items pursuant to Section 2.5(d)(v) by the Accounting Referee. Within five (53) Business Days after the Final ~~Working Capital Statement becomes or is deemed final and binding on the parties hereto, an adjustment to~~ Settlement Date. If the Purchase Price ~~and a payment~~ received by ~~wire transfer~~ Seller at Closing exceeds the Purchase Price as adjusted in ~~respect thereof described below shall be made as follows:~~ the final settlement statement, Seller will pay to Buyer the difference within three (~~i) If the Closing Cash Adjustment is positive, within five (5~~3) Business Days of after the ~~final determination of all amounts covered in~~ Final Settlement Date. Any post- Closing payment made pursuant to this Section 16(b) shall bear simple interest, compounded annually, at a variable rate per annum (based on a 365-day year) equal to 3.25% from the ~~Initial Working Capital Statement, the Purchaser shall pay~~ Closing Date to the ~~Sellers an amount equal to the Closing Cash Adjustment, which amount shall be paid to each Seller based on his or its Pro Rata Share~~ date of the Closing Cash Adjustment by wire transfer to the Wire Transfer Instructions; or (ii) If the Closing Cash Adjustment is negative, then an amount in cash equal to the absolute amount of the Closing Cash Adjustment shall be paid to the Purchaser by the Escrow Agent from the Escrow Account, and in the event that the Closing Cash Adjustment owed to the Purchaser exceeds the Escrow Fund, the Purchaser may seek payment of any such excess directly from the Sellers. Any payment required under this Section 2.5(e)(ii) shall be made within five (5) Business Days of the final determination of all amounts covered in the Initial Working Capital Statementpayment. (f) If the delivery deadline date for the Initial Working Capital Statement or the Objection Deadline Date is a day that is not a Business Day, the applicable delivery deadline date shall be the immediately following Business Day.

Appears in 1 contract

Sources: Purchase and Sale Agreement

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