Common use of Purchase Price and Adjustments Clause in Contracts

Purchase Price and Adjustments. (a) The aggregate purchase price for the Transferred Assets shall be an amount (the "Purchase Price") equal to (1) the Base Purchase Price, (2) either (x) increased by the difference between the Final Working Capital Amount and the Target Working Capital Amount, ASSET PURCHASE AGREEMENT 15 EXECUTION VERSION in the event the Final Working Capital Amount exceeds the Target Working Capital Amount or (y) decreased by the difference between Target Working Capital Amount and the Final Working Capital Amount, in the event the Final Working Capital Amount is less than the Target Working Capital Amount, (3) either (x) increased by the net amount of cash funded to the Business by Seller and its Affiliates between the Effective Date and the Closing Date ("Net Funded Cash") or (y) decreased by the net amount of cash swept from the Business by Seller and its Affiliates between the Effective Date and the Closing Date ("Net Swept Cash"), and (4) plus the assumption by Buyer of the Assumed Liabilities in accordance with this Agreement. (b) At the Closing, Buyer shall pay to Seller $107,000,000.00 (the "Base Purchase Price"). Such payment shall be made by wire transfer of immediately available funds in U.S. Dollars to an account designated by Seller to Buyer at least one business day prior to the Closing Date. (c) Promptly following the Closing Date, but in no event later than 60 days after the Closing Date, Seller shall prepare and submit to Buyer (x) a balance sheet of the Business as of midnight on the Effective Date (the "Closing Balance Sheet"), together with Seller's calculation of the Closing Working Capital (the "Proposed Final Working Capital Amount") (such calculation, together with the "Closing Balance Sheet" being referred to herein as the "Closing Date Statement") and (y) Seller's calculation of Net Funded Cash or Net Swept Cash, as the case may be. The Closing Balance Sheet shall be prepared by Seller in accordance with GAAP, consistently applied, and Closing Working Capital will be determined in accordance with the procedures set forth on Schedule 2.2(c). In the event Buyer disputes the correctness of the Proposed Final Working Capital Amount or Net Funded Cash or Net Swept Cash, as the case may be, Buyer shall notify Seller in writing of its objections within 30 days after receipt of the Closing Date Statement and shall set forth, in writing and in reasonable detail, the reasons for Buyer's objections. Buyer agrees that any adjustments proposed in accordance with the foregoing will not involve changes in or challenges to Seller's accounting methodologies, policies or procedures that have been consistently applied in the preparation of the Closing Date Statement and in accordance with Schedule 2.2(c). If Buyer fails to deliver its notice of objections within 30 days after receipt of the Closing Date Statement and calculation of Net Funded Cash or Net Swept Cash, as the case may be, Buyer shall be deemed to have accepted Seller's calculation. To the extent Buyer does not object, in writing and in accordance with and within the time period contemplated by this Section 2.2(c), to a matter in the Closing Date Statement or the calculation of Net Funded Cash or Net Swept Cash, Buyer shall be deemed to have accepted Seller's calculation and presentation in respect of the matter and the matter shall not be considered to be in dispute. Seller and Buyer shall endeavor in good faith to resolve any disputed matters within 20 days after receipt of Buyer's notice of objections. If Seller and Buyer are unable to resolve the disputed matters, Seller and Buyer shall select a nationally known independent accounting firm (which firm shall not be the then regular auditors of LM or Buyer) to resolve the matters in dispute (in a manner consistent with Section 2.2(d) and with any matters not in dispute), and the determination of such firm in respect of the correctness of each matter remaining in dispute shall be conclusive and binding on Seller and Buyer. The determination of such firm shall be based solely on presentations by Seller and Buyer and shall not be by independent review. The Closing Working Capital as of the Effective Date, as finally determined pursuant to this Section 2.2(c) (whether by failure of Buyer to deliver notice of objection, by agreement of Seller and Buyer or by determination of the independent accountants selected as set forth above), is referred to herein as the "Final Working Capital Amount."

Purchase Price and Adjustments. (a) The aggregate purchase price payable by Buyer to Holdco for the Transferred Assets Shares shall be an amount (the "“Purchase Price"”) equal to (1) the Base Purchase Price, ; (2) either (xi) increased by the difference between the Final Working Capital Amount and the Target Working Capital Amount, ASSET PURCHASE AGREEMENT 15 EXECUTION VERSION in the event the Final Working Capital Amount exceeds the Target Working Capital Amount or (yii) decreased by the difference between Target Working Capital Amount and the Final Working Capital Amount, in the event the Final Working Capital Amount is less than the Target Working Capital Amount, ; and (3) either (xi) increased by the net amount of cash funded to the Business by Seller and its Affiliates difference between the Effective Date Final Capital Expenditures Amount and the Closing Date ("Net Funded Cash") Target Capital Expenditures Amount, in the event the Final Capital Expenditures Amount exceeds the Target Capital Expenditures Amount or (yii) decreased by the net amount of cash swept from the Business by Seller and its Affiliates difference between the Effective Date Target Capital Expenditures Amount and the Closing Date ("Net Swept Cash")Final Capital Expenditures Amount, and (4) plus in the assumption by Buyer of event the Assumed Liabilities in accordance with this AgreementFinal Capital Expenditures Amount is less than the Target Capital Expenditures Amount. (b1) At the Closing, Buyer shall pay to Seller $107,000,000.00 Holdco an amount (the "“Closing Payment”) equal to (1) the Base Purchase Price"; (2) either (i) increased by the difference between the Estimated Working Capital Amount and the Target Working Capital Amount, in the event that the Estimated Working Capital Amount exceeds the Target Working Capital Amount, or (ii) decreased by the difference between the Target Working Capital Amount and the Estimated Working Capital Amount, in the event that the Estimated Working Capital Amount is less than the Target Working Capital Amount; and (3) either (i) increased by the difference between the Estimated Capital Expenditures Amount and the Target Capital Expenditures Amount, in the event the Estimated Capital Expenditures Amount exceeds the Target Capital Expenditures Amount or (ii) decreased by the difference between the Target Capital Expenditures Amount and the Estimated Capital Expenditures Amount, in the event the Estimated Capital Expenditures Amount is less than the Target Capital Expenditures Amount. The determination of the Estimated Capital Expenditures Amount will be pursuant to the procedures specified in Section 2.2(b). Such , and the determination of the Estimated Working Capital Amount will be pursuant to the procedures specified in Section 2.2(c). (2) At least two (2) Business Days prior to the Closing, the Parties shall agree upon a flow of funds memorandum (“Flow of Funds Memorandum”), which shall set forth all payments required to be made by or on behalf of all Parties at the Closing, including each such payment, and identification of the payor, the payee and the wire transfer information. (3) At the Closing, such payment shall be made by wire transfer of immediately available funds in U.S. Dollars to an account designated by Seller Holdco to Buyer at least one business day (1) Business Day prior to the Closing Date, or by such other methods as the Parties mutually determine. (b) On or prior to the fourth Business Day prior to the Closing Date, the CSC Parties shall prepare and deliver to Buyer a written statement (the “Estimated Capital Expenditures Statement”) setting forth the CSC Parties’ good faith estimate of the Capital Expenditures that will have been made (and paid) or accrued in Current Liabilities (including accounts payable and accrued capital expenses) during the period commencing on January 1, 2011, and continuing through the Effective Date (the “Estimated Capital Expenditures Amount”). Payments made with respect to Capital Expenditures for periods prior to January 1, 2011 shall not be included in the Estimated Capital Expenditures Amount. Buyer shall have the opportunity to review the Estimated Capital Expenditures Statement, and in the event that Buyer disputes any item set forth therein, then Buyer and the CSC Parties shall use their respective commercially reasonable and good faith efforts to reach agreement as to any necessary adjustments thereto not later than the first Business Day prior to the Closing Date. In the event that such an agreement is reached by the Parties with respect to any such adjustment, then the Closing Payment will be based on the Estimated Capital Expenditures Amount, as so adjusted. In the event that such an agreement is not reached by the Parties with respect to any such adjustment by the first Business Day immediately preceding the Closing Date, after good faith and commercially reasonable efforts to do so, then the Closing Date will be extended to a date that is five additional Business Days following the originally determined Closing Date. In the event that such an agreement is not reached by the Parties with respect to any such adjustment by the first Business Day immediately preceding such extended Closing Date, after good faith and commercially reasonable efforts to do so, then the Closing Payment will be based on the median between the Estimated Capital Expenditures Amount determined by the CSC Parties and the Estimated Capital Expenditures Amount determined by Buyer. Notwithstanding the foregoing procedures regarding the calculation and determination of the Estimated Capital Expenditures Amount, the Parties agree that such procedures are designed solely to provide an estimate of such amount for the purpose of establishing the amount of the Closing Payment and shall not govern the determination of the Final Capital Expenditures Amount pursuant to Section 2.2(d). (c) On or prior to the fourth Business Day prior to the Closing Date, the CSC Parties shall prepare and deliver to Buyer a written statement setting forth in commercially reasonable detail the CSC Parties’ good faith calculation of the Estimated Working Capital Amount (the “Estimated Working Capital Statement”). Buyer shall have the opportunity to review the Estimated Working Capital Statement and, in the event that Buyer disputes any item set forth therein, then Buyer and the CSC Parties shall use their respective commercially reasonable and good faith efforts to reach agreement as to any necessary adjustments thereto not later than the first Business Day prior to the Closing Date. In the event that such an agreement is reached by the Parties with respect to any such adjustment, then the Closing Payment will be based on the Estimated Working Capital Amount, as so adjusted. In the event that such an agreement is not reached by the Parties with respect to any such adjustment by the first Business Day immediately preceding the Closing Date, after good faith and commercially reasonable efforts to do so, then the Closing Date will be extended to a date that is five additional Business Days following the originally determined Closing Date. In the event that such an agreement is not reached by the Parties with respect to any such adjustment by the first Business Day immediately preceding such extended Closing Date, after good faith and commercially reasonable efforts to do so, then the Closing Payment will be based on the median between the Estimated Working Capital Amount determined by the CSC Parties and the Estimated Working Capital Amount determined by Buyer. Notwithstanding the foregoing procedures regarding the calculation and determination of the Estimated Working Capital Amount, the Parties agree that such procedures are designed solely to provide an estimate of such amount for the purpose of establishing the amount of the Closing Payment and shall not govern the determination of the determination of the Final Working Capital Amount pursuant to Section 2.2(d). (d) Promptly following the Closing Date, but in no event later than 60 ninety (90) days after the Closing Date, Seller Buyer shall prepare and submit to Buyer (x) a the Sellers an unaudited balance sheet of the Business AdvanceMed as of midnight on the Effective Date (the "“Closing Balance Sheet"”), together with Seller's Buyer’s calculation of (i) the Closing Working Capital (the "“Proposed Final Working Capital Amount"”) which shall include a detailed listing, by category, of Accounts Receivable as of the Effective Date in substantially the form of the Accounts Receivable disclosures in Schedule 3.2(w), and (ii) the Closing Capital Expenditures Amount (the “Proposed Final Capital Expenditures Amount”) which shall include a detailed listing, by general category, of Capital Expenditures that have been made (and paid) or accrued in Current Liabilities (including accounts payable and accrued capital expenses) during the period commencing on January 1, 2011 and continuing through the Effective Date in substantially the form of the Capital Expenditures disclosures in Schedule 3.2(aa) (such calculationcalculations and listings collectively, together with the "Closing Balance Sheet" being referred to herein as , the "“Closing Date Statement") ”). Payments made with respect to Capital Expenditures for periods prior to January 1, 2011 shall not be included in the Final Capital Expenditures Amount. If requested by Buyer, the Sellers shall provide Buyer, its accounting and (y) Seller's calculation other appropriate personnel and its independent accountants, access during normal business hours and upon reasonable advance request to the Sellers’ books, records, documents and work papers, and the accounting and other appropriate personnel and independent accounts of Net Funded Cash or Net Swept Cashthe Sellers, as Buyer reasonably deems necessary for preparation of the case may beClosing Date Statement. The From and after delivery of the Closing Balance Sheet Date Statement, Buyer shall be prepared by Seller give the Sellers access during normal business hours and upon reasonable advance request to the books and records, the accounting and other appropriate personnel and the independent accountants of Buyer and AdvanceMed in accordance with GAAP, consistently applied, and order to enable the Sellers to review such Closing Working Capital will be determined in accordance with the procedures set forth on Schedule 2.2(c)Date Statement. In the event Buyer disputes the Sellers dispute the correctness of the Proposed Final Working Capital Amount Amount, the Proposed Final Capital Expenditures Amount, the Closing Balance Sheet or Net Funded Cash or Net Swept Cashthe Accounts Receivable listed in the Closing Date Statement, as the case may be, Buyer the Sellers shall notify Seller Buyer in writing of its their objections within 30 fifteen (15) days after receipt of the Closing Date Statement and shall set forth, in writing and in reasonable detail, the reasons for Buyer's the Sellers’ objections. Buyer agrees that any adjustments proposed in accordance with If the foregoing will not involve changes in or challenges to Seller's accounting methodologies, policies or procedures that have been consistently applied in the preparation of the Closing Date Statement and in accordance with Schedule 2.2(c). If Buyer fails Sellers fail to deliver its their notice of objections within 30 fifteen (15) days after receipt of the Closing Date Statement and calculation of Net Funded Cash or Net Swept CashStatement, as the case may be, Buyer Sellers shall be deemed to have accepted Seller's calculation. To the extent Buyer does not object, in writing and in accordance with and within the time period contemplated by this Section 2.2(c), to a matter in the Closing Date Statement or the calculation of Net Funded Cash or Net Swept Cash, Buyer shall be deemed to have accepted Seller's Buyer’s calculation and presentation in respect of the matter and the matter shall not be considered to be in dispute. Seller The Sellers and Buyer shall endeavor in good faith to resolve any disputed matters within 20 twenty (20) days after receipt of Buyer's the Sellers’ notice of objections. If Seller the Sellers and Buyer are unable to resolve the disputed matters, Seller the Sellers and Buyer shall select a engage an independent nationally known independent recognized public accounting firm (which firm shall not be the then regular auditors of LM or Buyer) to resolve the matters in dispute (in a manner consistent with Section 2.2(d) and with any matters not in dispute), and the determination of such firm in respect of the correctness of each matter remaining in dispute shall be conclusive and binding on Seller all Parties. Such firm shall review the Proposed Final Working Capital Amount, the Proposed Final Capital Expenditures Amount, the Closing Balance Sheet and Buyerthe Accounts Receivable listed in the Closing Date Statement, as applicable, and each Party’s proposed calculation thereof as of the Effective Date solely in light of the governing terms of this Agreement and the proposed calculations, and the scope of such review shall be limited solely to the matters for which Buyer and the Sellers were unable to reach agreement. Each Party shall be given the opportunity to make presentations to the firm. The determination of such firm shall be evidenced by its signed written opinion addressed and delivered to all Parties. Such written opinion shall set forth a detailed explanation of the rationale and reasoning for such firm’s determination. Such firm’s determination shall be based solely on presentations by Seller the Sellers and Buyer by the Buyer, and shall not be by means of any independent reviewor de novo review of any aspect of the dispute or the related Closing Date Statement. In reaching its determination, the only alternatives available to such firm shall be to (i) accept the position of the Sellers, (ii) accept the position of Buyer or (iii) accept a position between those two positions. The Closing Working Capital as of the Effective Date, including the Closing Balance Sheet and the Accounts Receivable listed in the Closing Date Statement, as finally determined pursuant to this Section 2.2(c2.2(d) (whether by failure of Buyer the Sellers to deliver notice of objection, by agreement of Seller the Sellers and Buyer or by determination of the independent accountants selected as set forth above), is referred to herein as the "“Final Working Capital Amount."” The Closing Capital Expenditures Amount as of the Effective Date as finally determined pursuant to this Section 2.2(d) (whether by failure of the Sellers to deliver notice of objection, by agreement of the Sellers and Buyer or by determination of the independent accountants selected as set forth above) is referred to herein as the “Final Capital Expenditures Amount.”