Adjustment Amount. (a) Not less than three (3) Business Days prior to the Closing Date and in no event more than ten (10) Business Days prior to the Closing Date, Seller shall deliver to Buyer a written statement, together with reasonably detailed supporting documentation (the “Estimated Closing Statement”), which shall be prepared in accordance with the Accounting Principles and the applicable definitions contained herein, setting forth (i) its good faith estimate of (A) the Closing Date Net Working Capital (the “Estimated Closing Date Net Working Capital”), (B) the Indebtedness as of immediately prior to the Closing (the “Estimated Closing Date Indebtedness”), (C) the Cash and Cash Equivalents of the Purchased Subsidiaries as of immediately prior to the Closing , not to exceed an amount equal to $2,500,000 (the “Estimated Closing Date Cash”) and (D) the Transaction Expenses (the “Estimated Transaction Expenses”), (ii) its calculation of the Estimated Net Working Capital Adjustment Amount, and (iii) its resulting calculation of the Purchase Price under Section 2.02(a) (the “Estimated Purchase Price”). (b) Within sixty (60) days following the Closing Date, Buyer shall prepare and deliver to Seller a statement (the “Closing Statement”) which shall be prepared in accordance with the Accounting Principles and the applicable definitions contained herein, setting forth (i) a calculation of the Closing Date Net Working Capital, (ii) a calculation of the Indebtedness as of immediately prior to the Closing (the “Closing Date Indebtedness”), (iii) a calculation of the Cash and Cash Equivalents of the Purchased Subsidiaries as of immediately prior to the Closing, not to exceed an amount equal to $2,500,000 (the “Closing Date Cash”) and (iv) a calculation of the Transaction Expenses. Nothing in this Section 2.04 is intended to be used to adjust for errors, omissions or inconsistencies that may be found with respect to the Financial Statements, or any actual or alleged failure of the Financial Statements to be prepared in accordance with GAAP or in good faith. Following the Closing, Buyer shall provide Seller and its Representatives reasonable access, during normal business hours and upon reasonable prior notice, to the records, properties, personnel and (subject to the execution of customary work paper access letters) auditors of Buyer utilized in the preparation of the Closing Statement and shall cause the personnel of Buyer and its Subsidiaries (including the Purchased Subsidiaries) involved in the preparation of the Closing Statement to reasonably cooperate, during normal business hours and upon reasonable prior notice, with Seller and its Representatives in connection with their review of the Closing Statement. (c) If Seller disagrees with the calculation of the Closing Date Net Working Capital, the Closing Date Indebtedness, the Transaction Expenses and/or the Closing Date Cash, it shall notify Buyer of such disagreement in writing, setting forth in reasonable detail the particulars of such disagreement, within forty-five (45) days after its receipt of the Closing Statement. In the event that Seller does not provide such a notice of disagreement within such forty-five (45)-day period, Seller shall be deemed to have accepted the Closing Statement and the calculation of the Closing Date Net Working Capital, the Closing Date Indebtedness and the Closing Date Cash delivered by Buyer, which shall be final, binding and conclusive for all purposes hereunder. In the event any such notice of disagreement is timely provided, Buyer and Seller shall use commercially reasonable efforts for a period of forty-five (45) days (or such longer period as they may mutually agree) to resolve any disagreements with respect to the calculations of the Closing Date Net Working Capital, the Closing Date Indebtedness, the Transaction Expenses or the Closing Date Cash (or of any line item contained in any of the foregoing), and all such discussions related thereto shall (unless otherwise agreed by Seller and Buyer) be governed by Rule 408 of the Federal Rules of Evidence and any applicable similar state rule. If, at the end of such period, they are unable to resolve such disagreements, then ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP (or such other independent accounting or financial consulting firm of recognized national standing as may be mutually selected by Buyer and Seller) (the “Auditor”) shall resolve any remaining disagreements. Seller and Buyer shall instruct the Auditor to determine as promptly as practicable, but in any event within forty-five (45) days of the date on which such dispute is referred to the Auditor, whether the Closing Statement was prepared in accordance with the standards set forth in the Accounting Principles and the applicable definitions contained herein and (only with respect to the remaining disagreements submitted to the Auditor) whether and to what extent (if any) the Closing Date Net Working Capital, the Closing Date Indebtedness, the Transaction Expenses or the Closing Date Cash require adjustment; provided, that in resolving any disputed amount in connection with such determination, the Auditor may not assign a value to the Closing Date Net Working Capital, the Closing Date Indebtedness, the Transaction Expenses or the Closing Date Cash greater than the greatest amount for such value, or less than the smallest amount for such value, in either case, claimed by Buyer in the Closing Statement or Seller in its notice of disagreement delivered pursuant to this Section 2.04(c). The Auditor shall consider only those items and amounts in Buyer’s and Seller’s respective calculations (as set forth in the Closing Statement and the notice of disagreement described above, respectively) of the Closing Date Net Working Capital, the Closing Date Indebtedness, the Transaction Expenses, and the Closing Date Cash that are identified as being items and amounts to which Buyer and Seller have been unable to agree and shall only be permitted to determine whether such items are calculated in accordance with the Accounting Principles and the applicable definitions contained herein, and Buyer and Seller shall instruct the Auditor not to make any other determination, including any determination as to whether the Target Net Working Capital or any estimates on the Estimated Closing Statement are correct, adequate or sufficient. The fees and expenses of the Auditor shall be paid one-half by Buyer (or its Subsidiaries) and one-half by Seller (or the Retained Entities). Absent manifest error, the determination of the Auditor shall be final, binding and conclusive on the Parties and shall not be subject to appeal or further review; provided, however, that the Parties shall be entitled to have a judgment entered upon the written determination of the Auditor in accordance with Section 10.07. The date on which the Closing Date Net Working Capital, the Closing Date Indebtedness, the Transaction Expenses and the Closing Date Cash are finally determined in accordance with this Section 2.04(c) is hereinafter referred to as the “Determination Date.” (d) The “Adjustment Amount,” which may be positive or negative, shall mean (i) the Closing Date Net Working Capital (as finally determined in accordance with Section 2.04(c)), minus the Estimated Closing Date Net Working Capital, plus (ii) the Estimated Closing Date Indebtedness, minus the Closing Date Indebtedness (as finally determined in accordance with Section 2.04(c)), plus (iii) the Closing Date Cash (as finally determined in accordance with Section 2.04(c)), minus the Estimated Closing Date Cash, plus (iv) the Estimated Transaction Expenses minus the Transaction Expenses (as finally determined in accordance with Section 2.04(c)). If the Adjustment Amount is a positive number, then the Purchase Price shall be increased by the Adjustment Amount (the “Increase Amount”), and if the Adjustment Amount is a negative number, then the Purchase Price shall be decreased by the absolute value of the Adjustment Amount (the “Deficit Amount”). The Adjustment Amount shall be paid in accordance with Section 2.04(e). (e) If there is an Increase Amount, then, promptly following the Determination Date, and in any event within five (5) Business Days of the Determination Date, Buyer shall pay to Seller (and/or one or more Retained Entities designated by Seller) an amount in cash equal to the Increase Amount in immediately available funds by wire transfer to an account or accounts designated by Seller, by written notice to Buyer. If there is a Deficit Amount, then, promptly following the Determination Date, and in any event within five (5) Business Days of the Determination Date, Seller shall pay, or shall cause to be paid, to Buyer an amount in cash equal to the Deficit Amount in immediately available funds by wire transfer to an account or accounts designated by Buyer, by written notice to TransUnion. For U.S. federal income and other applicable Tax purposes, to the extent permitted by applicable Law, any Increase Amount or Deficit Amount pursuant to this Section 2.04 shall be treated as an adjustment to the portion of the Purchase Price attributable to the relevant Purchased Interests.
Appears in 1 contract
Adjustment Amount. (a) Not less than three (3) Business Days prior to the Closing Date and in no event more than ten (10) Business Days prior to As soon as reasonably practicable following the Closing Date, Seller and in any event within 75 calendar days thereof, Buyer shall prepare and deliver to Buyer Seller (i) a written statementcalculation of Closing Net Working Capital, (ii) a calculation of the aggregate amount of all Closing Indebtedness, (iii) a calculation of Closing Cash, (iv) a calculation of Transaction Expenses, (v) Buyer’s calculation of the Closing Net Working Capital Adjustment Amount, and (vi) on the basis of the foregoing, a calculation of the Closing Cash Purchase Price (together with reasonably detailed supporting documentation the calculations referred to in clauses (i) through (vi) above, the “Estimated Final Closing Statement”). The Closing Net Working Capital, which Closing Indebtedness and Closing Cash shall be prepared in accordance with the Accounting Principles and the applicable definitions contained hereindefined terms used in this Section 2.06(a); provided, setting forth however, the Final Closing Statement (iand any amounts included therein) shall not give effect to the consummation of the transactions contemplated by this Agreement, including any act or omission by Buyer or any of its good faith estimate of (A) Subsidiaries or the Companies taken at, after or in connection with the Closing Date Net Working Capital (the “Estimated Closing Date Net Working Capital”), (B) the Indebtedness as or reflect any payments of immediately prior to the Closing (the “Estimated Closing Date Indebtedness”), (C) the Cash and Cash Equivalents of the Purchased Subsidiaries as of immediately prior to the Closing , not to exceed an amount equal to $2,500,000 (the “Estimated Closing Date Cash”) and (D) the Transaction Expenses (the “Estimated Transaction Expenses”), (ii) its calculation of the Estimated Net Working Capital Adjustment Amount, and (iii) its resulting calculation cash in respect of the Purchase Price, or any financing transactions in connection therewith or reflect any expense or liability for which Buyer is responsible under this Agreement. For the avoidance of doubt, the calculations and the purchase price adjustment to be made pursuant to this Section 2.06 are only meant to reflect the proper calculation of Closing Cash Purchase Price under Section 2.02(a(and the inputs thereto) (the “Estimated Purchase Price”).
(b) Within sixty (60) days following the Closing Date, Buyer shall prepare and deliver to Seller a statement (the “Closing Statement”) which shall be prepared in accordance with the Accounting Principles applicable definitions contained therein and otherwise in this Agreement and the applicable definitions contained herein, setting forth (i) a calculation terms and conditions of the Closing Date Net Working Capital, (ii) a calculation of the Indebtedness as of immediately prior to the Closing (the “Closing Date Indebtedness”), (iii) a calculation of the Cash and Cash Equivalents of the Purchased Subsidiaries as of immediately prior to the Closing, not to exceed an amount equal to $2,500,000 (the “Closing Date Cash”) and (iv) a calculation of the Transaction Expensesthis Agreement. Nothing in this Section 2.04 2.06 is intended to be used to adjust for errors, errors or omissions or inconsistencies that may be found with respect to the Financial Statements, Statements or any actual inconsistencies between the Accounting Principles, on the one hand, and GAAP, on the other. No action taken by Buyer occurring at, after or alleged failure of in connection with the Financial Statements Closing, and no change in GAAP or Applicable Law after the Balance Sheet Date, shall be taken into consideration in the calculations to be prepared made pursuant to Section 2.04 or this Section 2.06. If Buyer fails to timely deliver the Final Closing Statement in accordance with GAAP the first sentence of this Section 2.06(a) within such 75-day period, then, at the election of Seller in its sole discretion either (x) the Preliminary Closing Statement delivered by Seller to Buyer pursuant to Section 2.04 shall be deemed to be the Final Closing Statement for all purposes hereunder or in good faith. (y) Seller shall be entitled to retain (at the sole cost and expense of Buyer) an independent accounting firm of recognized national standing to provide an audit of the books of the Companies, determine the calculation of, and prepare, the Final Closing Statement consistent with the provisions of this Section 2.06(a), the determination of such independent accounting firm being conclusive, final and binding on the parties hereto.
(b) Following delivery of the ClosingFinal Closing Statement, Buyer shall provide Seller and its Representatives reasonable access, during normal business hours and upon reasonable prior notice, access to the records, properties, personnel and (subject to the execution of customary work paper access lettersletters if requested) auditors of Buyer utilized in the Companies relating to the preparation of the Final Closing Statement and shall cause the personnel of Buyer and its Subsidiaries (including the Purchased Subsidiaries) involved in the preparation of the Closing Statement Companies to reasonably cooperate, during normal business hours and upon reasonable prior notice, cooperate with Seller and its Representatives in connection with their its review of the Final Closing Statement.
(c) If Seller disagrees shall disagree with any of Buyer’s calculations contained in the calculation of the Final Closing Date Net Working CapitalStatement, the Closing Date Indebtedness, the Transaction Expenses and/or the Closing Date Cash, it Seller shall notify Buyer of such disagreement in writing, setting forth in reasonable detail the particulars of such disagreement, within forty-five (45) 60 days after its their receipt of the Final Closing Statement. In the event that Seller does not provide such a notice of disagreement within such forty60-five (45)-day day period, Seller shall be deemed to have accepted agreed to the Final Closing Statement and (including the calculation of the Closing Date Net Working Capital, the Closing Date Indebtedness and the Closing Date Cash determinations included therein) delivered by Buyer, which shall be final, binding and conclusive for all purposes hereunder. In the event any such notice of disagreement is timely provided, Buyer and Seller shall use commercially their respective reasonable best efforts for a period of forty-five (45) 30 days (or such longer period as they may mutually agree) to seek in good faith to resolve any disagreements with respect to the any calculations of the Closing Date Net Working Capital, the Closing Date Indebtedness, the Transaction Expenses or the Closing Date Cash (or of any line item contained in any of the foregoing), and all such discussions related thereto shall (unless otherwise agreed by Seller and Buyer) be governed by Rule 408 of the Federal Rules of Evidence and any applicable similar state ruleFinal Closing Statement. If, at the end of such period, they Buyer and Seller are unable to resolve such disagreements, then ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP any remaining disagreements, including any updates to their calculations of such items after the good faith discussions process between the parties pursuant to this Section 2.06(c) (the “Disputed Items”), shall, at the written request of either Buyer or Seller, be resolved by Deloitte or such other independent accounting or financial consulting firm of nationally recognized national standing as may be mutually selected by Buyer and Seller (who shall not have any material relationship with Seller, Buyer or any of their respective Affiliates) (such firm, the “Auditor”) ). Buyer and Seller shall resolve any remaining disagreements. Seller and Buyer shall instruct promptly provide their assertions regarding the Disputed Items in writing to the Auditor and to determine each other. The Auditor shall be instructed to render its determination with respect to the Disputed Items as promptly soon as practicable, but in any event within forty-five reasonably possible (45) which the parties hereto agree should not be later than 60 days of following the date on which such dispute the disagreement is referred to the Auditor). The Auditor shall adopt a position and issue a written report and a ruling only in respect of the Disputed Items by determining which of the positions of Buyer or Seller submitted to the Auditor is, whether the Closing Statement was prepared in accordance with the standards set forth in the Accounting Principles aggregate, more accurate pursuant to the terms of this Section 2.06 (which report shall include a worksheet setting forth the material calculations used in arriving at such determination), and, based on such determination, adopt either the aggregate amount claimed by Buyer or the aggregate amount claimed by Seller with respect to the Disputed Items. The Auditor shall base its determination solely on (i) the written submissions of the parties and shall not conduct an independent investigation and (ii) the applicable definitions contained herein and extent (if any) to which Closing Net Working Capital, Closing Indebtedness, Closing Cash and/or Transaction Expenses require adjustment (only with respect to the remaining disagreements Disputed Items submitted to the Auditor) whether and in order to what extent be determined in accordance with Section 2.06(a) (if any) including the Closing Date Net Working Capital, definitions of the Closing Date Indebtedness, the Transaction Expenses or the Closing Date Cash require adjustment; provided, that defined terms used in resolving any disputed amount in connection with such determination, the Auditor may not assign a value to the Closing Date Net Working Capital, the Closing Date Indebtedness, the Transaction Expenses or the Closing Date Cash greater than the greatest amount for such value, or less than the smallest amount for such value, in either case, claimed by Buyer in the Closing Statement or Seller in its notice of disagreement delivered pursuant to this Section 2.04(c2.06(a)). The Auditor shall consider only those items and amounts in Buyer’s and Seller’s respective calculations (as set forth in the Closing Statement and the notice of disagreement described above, respectively) of the Closing Date Net Working Capital, the Closing Date Indebtedness, the Transaction Expenses, and the Closing Date Cash that are identified as being items and amounts to which Buyer and Seller have been unable to agree and shall only be permitted to determine whether such items are calculated in accordance with the Accounting Principles and the applicable definitions contained herein, and Buyer and Seller shall instruct the Auditor not to make any other determination, including any determination as to whether the Target Net Working Capital or any estimates on the Estimated Closing Statement are correct, adequate or sufficient. The fees and expenses of the Auditor shall be paid one-half by Buyer (or its Subsidiaries) and one-half by Seller (or the Retained Entities). Absent manifest error, the determination of the Auditor shall be final, conclusive and binding and conclusive on the Parties parties and shall not may be subject to appeal or further review; provided, however, that the Parties shall be entitled to have entered as a judgment entered upon the written determination in any court of the Auditor in accordance with Section 10.07competent jurisdiction. The date on which the Closing Date Net Working Capital, the Closing Date Indebtedness, the Closing Cash, Transaction Expenses Expenses, Closing Net Working Capital Adjustment Amount and the Closing Date Cash Purchase Price are finally determined in accordance with this Section 2.04(c2.06(c) is hereinafter referred to as the “Determination Date.”” All fees and expenses of the Auditor relating to the work, if any, to be performed by the Auditor hereunder shall be borne by the party whose positions were not adopted by the Auditor.
(d) The “Adjustment Amount,” which may be positive or negative, shall mean (i) the Closing Date Net Working Capital Cash Purchase Price (as finally determined in accordance with Section 2.04(c)2.06(a) or 2.06(c), as applicable) minus the Estimated Cash Closing Date Net Working Capital, plus (ii) the Estimated Closing Date Indebtedness, minus the Closing Date Indebtedness (as finally determined Purchase Price. The Adjustment Amount shall be deemed paid in accordance with Section 2.04(c2.06(e).
(e) If the Adjustment Amount is a positive number (such amount, the “Increase Amount”), plus (iii) then thereupon an amount equal to the Closing Date Cash (Increase Amount shall be deemed to have been added to the initial liquidation preference of the Preferred Stock as finally determined of the Closing, ab initio, in accordance with Section 2.04(c)), minus the Estimated Closing Date Cash, plus (iv) the Estimated Transaction Expenses minus the Transaction Expenses (as finally determined in accordance with Section 2.04(c))terms and conditions thereof. If the Adjustment Amount is a positive number, then the Purchase Price shall be increased by the Adjustment Amount negative number (the “Increase Amount”), and if the Adjustment Amount is a negative number, then the Purchase Price shall be decreased by the absolute value of the Adjustment Amount (such amount, the “Deficit Amount”). The Adjustment Amount shall be paid in accordance with Section 2.04(e).
(e) If there is an Increase Amount, then, promptly following the Determination Date, and in any event within five (5) Business Days of the Determination Date, Buyer shall pay to Seller (and/or one or more Retained Entities designated by Seller) then thereupon an amount in cash equal to the Increase Amount in immediately available funds by wire transfer to an account or accounts designated by Seller, by written notice to Buyer. If there is a Deficit Amount, then, promptly following the Determination Date, and in any event within five (5) Business Days of the Determination Date, Seller shall pay, or shall cause to be paid, to Buyer an amount in cash equal to the Deficit Amount in immediately available funds by wire transfer to an account or accounts designated by Buyer, by written notice to TransUnion. For U.S. federal income and other applicable Tax purposes, to the extent permitted by applicable Law, any Increase Amount or Deficit Amount pursuant to this Section 2.04 shall be treated as an adjustment deemed to have been deducted from the portion initial liquidation preference of the Purchase Price attributable to Preferred Stock as of the relevant Purchased InterestsClosing, ab initio, in accordance with the terms and conditions thereof.
Appears in 1 contract
Adjustment Amount. (a) Not less than three (3) Business Days prior to the Closing Date and in no event more than ten (10) Business Days prior to . As soon as reasonably practicable following the Closing Date, Seller and in any event within 60 calendar days thereof, Buyer shall prepare and deliver to Buyer the Sellers, (%4) a written statementcalculation of Closing Net Working Capital, (%4) a calculation of the aggregate amount of all Closing Indebtedness, (%4) a calculation of Closing Cash, (%4) Buyer’s calculation of the Closing Net Working Capital Adjustment Amount, (%4) a calculation of Closing Transaction Expenses and on the basis of the foregoing (%4) a calculation of the Closing Purchase Price (together with reasonably detailed supporting documentation the calculations referred to in clauses (i) through (vi) above, the “Estimated Final Closing Statement”). The Closing Net Working Capital, which Closing Indebtedness and Closing Cash shall be prepared in accordance with the Accounting Principles and the applicable definitions contained hereindefined terms used in this Section 2.06(a); provided, setting forth however, that the Final Closing Statement (iand any amounts included therein) shall not give effect to any act or omission by Buyer or any of its good faith estimate of (A) Subsidiaries or the Companies taken after the Closing Date Net Working Capital (the “Estimated Closing Date Net Working Capital”), (B) the Indebtedness as or reflect any payments of immediately prior to the Closing (the “Estimated Closing Date Indebtedness”), (C) the Cash and Cash Equivalents of the Purchased Subsidiaries as of immediately prior to the Closing , not to exceed an amount equal to $2,500,000 (the “Estimated Closing Date Cash”) and (D) the Transaction Expenses (the “Estimated Transaction Expenses”), (ii) its calculation of the Estimated Net Working Capital Adjustment Amount, and (iii) its resulting calculation cash in respect of the Purchase Price Price, or any financing transactions in connection therewith or reflect any expense or liability for which Buyer is responsible under Section 2.02(a) (this Agreement or the “Estimated payment of the Purchase Price”. For the avoidance of doubt, neither party shall dispute the definition, scope or the application of the Accounting Principles or any inconsistencies between GAAP and any Accounting Principle(s).
(b) Within sixty (60) days following . No fact or event, including any market or business development, occurring after the Closing Date, Buyer shall prepare and deliver to Seller a statement (no change in GAAP or Applicable Law after the “Closing Statement”) which Balance Sheet Date, shall be prepared taken into consideration in the calculations to be made pursuant to Section 2.04 or this Section 2.06. If Buyer fails to timely deliver the Final Closing Statement in accordance with the Accounting Principles and first sentence of this Section 2.06(a) within such 60-day period, then, at the applicable definitions contained herein, setting forth (i) a calculation election of the Sellers in their sole discretion either (x) the Preliminary Closing Date Net Working CapitalStatement delivered by the Sellers to Buyer pursuant to Section 2.04 shall be deemed to be the Final Closing Statement, for all purposes hereunder or (iiy) a calculation the Sellers shall be entitled to retain the Auditor to provide an audit of the Indebtedness as books of immediately prior to the Companies, determine the calculation of, and prepare, the Final Closing (Statement consistent with the “Closing Date Indebtedness”provisions of Section 2.06(c), the determination of such Auditor being conclusive, final and binding on the parties hereto.
(iiia) a calculation of the Cash and Cash Equivalents of the Purchased Subsidiaries as of immediately prior to the Closing, not to exceed an amount equal to $2,500,000 (the “Closing Date Cash”) and (iv) a calculation of the Transaction Expenses. Nothing in this Section 2.04 is intended to be used to adjust for errors, omissions or inconsistencies that may be found with respect to the Financial Statements, or any actual or alleged failure of the Financial Statements to be prepared in accordance with GAAP or in good faith. Following the Closing, each of the Sellers and Buyer shall provide Seller the other party and its Representatives reasonable access, during normal business hours and access upon reasonable prior notice, written notice to the its records, properties, personnel and (subject to the execution of customary work paper access lettersletters if requested) auditors of Buyer utilized in relating to the preparation or review of the Final Closing Statement and upon reasonable written notice shall cause its personnel to cooperate with the personnel of Buyer and its Subsidiaries (including the Purchased Subsidiaries) involved in the preparation of the Closing Statement to reasonably cooperate, during normal business hours and upon reasonable prior notice, with Seller and its Representatives other party in connection with their such party’s preparation or review of the Final Closing Statement, in each case at the requesting party’s expense.
(cb) If Seller disagrees the Sellers shall disagree with any of Buyer’s calculations contained in the calculation of the Final Closing Date Net Working CapitalStatement, the Closing Date Indebtedness, the Transaction Expenses and/or the Closing Date Cash, it they shall notify Buyer of such disagreement in writing, setting forth in reasonable detail the particulars of such disagreement, within forty-five (45) 45 days after its their receipt of the Final Closing Statement. In the event that Seller does the Sellers do not provide such a notice of disagreement within such forty-five (45)-day 45 day period, Seller the Sellers shall be deemed to have accepted agreed to the Final Closing Statement and (including the calculation of the Closing Date Net Working Capital, the Closing Date Indebtedness and the Closing Date Cash determinations included therein) delivered by Buyer, which shall be final, binding and conclusive for all purposes hereunder. In the event any such notice of disagreement is timely provided, Buyer and Seller the Sellers shall use commercially their respective reasonable best efforts for a period of forty-five (45) 30 days (or such longer period as they may mutually agree) to resolve any disagreements with respect to the any calculations of the Closing Date Net Working Capital, the Closing Date Indebtedness, the Transaction Expenses or the Closing Date Cash (or of any line item contained in any the Final Closing Statement. Any determination set forth in the Final Closing Statement that is not objected to in such a notice of disagreement shall be deemed acceptable and shall be final, binding and conclusive on Buyer and the foregoing), and all Sellers upon delivery of such discussions related thereto shall (unless otherwise agreed by Seller and Buyer) be governed by Rule 408 notice of the Federal Rules of Evidence and any applicable similar state ruledisagreement. If, at the end of such thirty (30) day-period, they are unable to resolve such disagreements, then ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP either Buyer, on the one hand, or the Sellers, on the other hand, may submit any such remaining disagreements (such remaining disagreements, the “Disputed Items”) to Deloitte Touche Tohmatsu or such other independent accounting or financial consulting firm of internationally recognized national standing as may be mutually selected by Buyer and Seller) the Sellers (such firm, the “Auditor”) ). Buyer and the Sellers shall resolve any remaining disagreements. Seller and Buyer shall instruct promptly provide their assertions regarding the Disputed Items in writing to the Auditor and to determine each other. The Auditor shall be instructed to render a written statement setting forth its final determination (and a reasonably detailed description of the basis therefor) with respect to the Disputed Items as promptly soon as practicable, but in any event within forty-five reasonably possible (45) which the parties hereto agree should not be later than 60 days of following the date on which such dispute the disagreement is referred to the Auditor). The Auditor shall base its determination solely on (%4) the written submissions of the parties and shall not conduct an independent investigation, whether (%4) the extent (if any) to which Closing Statement was prepared in accordance with the standards set forth in the Accounting Principles and the applicable definitions contained herein and Net Working Capital, Closing Indebtedness, Closing Cash, Closing Net Working Capital Adjustment and/or Closing Transaction Expenses require adjustment (only with respect to the remaining disagreements Disputed Items submitted to the Auditor) whether in order to be determined in accordance with Section 2.06(a) (including the definitions of the defined terms used in Section 2.06(a) and to what the Accounting Principles) and (iii) the extent (if any) to which there were mathematical errors in the Closing Date Net Working Capital, calculation of the Closing Date Indebtedness, items within the Transaction Expenses or the Closing Date Cash require adjustment; provided, that in resolving any disputed amount in connection with such determination, the Disputed Items. The Auditor may shall not assign a value to any Disputed Item submitted to the Closing Date Net Working Capital, the Closing Date Indebtedness, the Transaction Expenses or the Closing Date Cash Auditor greater than the greatest amount value for such value, item claimed by either party or less than the smallest amount value for such value, in either case, item claimed by Buyer in the Closing Statement or Seller in its notice of disagreement delivered pursuant to this Section 2.04(c)either party. The Auditor shall consider only those items and amounts in Buyer’s and Seller’s respective calculations (as set forth in the Closing Statement and the notice of disagreement described above, respectively) of the Closing Date Net Working Capital, the Closing Date Indebtedness, the Transaction Expenses, and the Closing Date Cash that are identified as being items and amounts to which Buyer and Seller have been unable to agree and shall only be permitted to determine whether such items are calculated in accordance with the Accounting Principles and the applicable definitions contained herein, and Buyer and Seller shall instruct the Auditor not to make any other determination, including any determination as to whether the Target Net Working Capital or any estimates on the Estimated Closing Statement are correct, adequate or sufficient. The fees and expenses of the Auditor shall be paid one-half by Buyer (or its Subsidiaries) and one-half by Seller (or the Retained Entities). Absent manifest error, the determination of the Auditor shall be final, conclusive and binding and conclusive on the Parties and shall not be subject to appeal or further review; providedparties, however, that the Parties shall be entitled to have a judgment entered upon the written determination of the Auditor in accordance with Section 10.07absent manifest error. The date on which the Closing Date Net Working Capital, the Closing Date Indebtedness, the Closing Cash, Closing Net Working Capital Adjustment Amount, Closing Transaction Expenses and the Closing Date Cash Purchase Price are finally determined in accordance with this Section 2.04(c2.06(c) is hereinafter referred to as the “Determination Date.”” All fees and expenses of the Auditor relating to the work, if any, to be performed by the Auditor hereunder shall be borne between Buyer, on the one hand, and the Sellers, on the other hand, based upon a fraction, the numerator of which is the portion of the aggregate amount of the Disputed Items not awarded to the applicable party and the denominator of which is the aggregate amount of the Disputed Items. For example, if the Sellers challenge items underlying the calculations of Closing Net Working Capital, Closing Indebtedness and/or Closing Cash in the net amount of $1,000,000, and the Auditor determines that the Sellers have a valid claim for $400,000 of the $1,000,000, the Sellers shall bear 60% of the fees and expenses of the Auditor and Buyer shall bear 40% of the fees and expenses of the Auditor. All other fees and expenses incurred by the parties hereto in connection with resolving any dispute hereunder before the Auditor shall be borne by the party incurring such cost and expense.
(dc) The “Adjustment Amount,” which may be positive or negative, shall mean (i) the Closing Date Net Working Capital Purchase Price (as finally determined in accordance with Section 2.04(c)2.06(a) or 2.06(c), as applicable) minus the Estimated Closing Date Net Working Capital, plus (ii) the Estimated Closing Date Indebtedness, minus the Closing Date Indebtedness (as finally determined in accordance with Section 2.04(c)), plus (iii) the Closing Date Cash (as finally determined in accordance with Section 2.04(c)), minus the Estimated Closing Date Cash, plus (iv) the Estimated Transaction Expenses minus the Transaction Expenses (as finally determined in accordance with Section 2.04(c)). If the Adjustment Amount is a positive number, then the Purchase Price shall be increased by the Adjustment Amount (the “Increase Amount”), and if the Adjustment Amount is a negative number, then the Purchase Price shall be decreased by the absolute value of the Adjustment Amount (the “Deficit Amount”)Price. The Adjustment Amount shall be paid in accordance with Section 2.04(e2.06(e).
(ed) If there the Adjustment Amount is an a positive number (such amount, the “Increase Amount”), then, promptly following the Determination Date, and in any event within five (5) three Business Days of the Determination Date, Buyer shall pay to Seller (and/or one or more Retained Entities designated by Seller) the Sellers an amount in cash equal to the Increase Amount in immediately available funds by wire transfer to an Sellers’ Bank Account or such other account or accounts designated by Seller, by written notice to Buyerthe Sellers. If there the Adjustment Amount is a negative number (the absolute value of such amount, the “Deficit Amount”), then, promptly following the Determination Date, and in any event within five (5) three Business Days of the Determination Date, Seller the Sellers shall pay, or shall cause to be paid, pay to Buyer an amount in cash equal to the Deficit Amount in immediately available funds by wire transfer to an account or accounts of Buyer designated by Buyer, by written notice to TransUnion. For U.S. federal income and other applicable Tax purposes, to the extent permitted by applicable Law, any Increase Amount or Deficit Amount .
(e) Any payment owed pursuant to this Section 2.04 2.06(e) shall also bear interest from and including the Closing Date to but excluding the date of payment at a rate per annum equal to 2% per annum compounded quarterly. Such interest shall be treated payable at the same time as an adjustment the payment to which it relates and shall be calculated daily on the portion basis of a year of 365 days and the Purchase Price attributable to the relevant Purchased Interestsactual number of days elapsed.
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Adjustment Amount. (a) Not less than three (3) Business Days prior to the Closing Date and in no event more than ten (10) Business Days prior to As soon as reasonably practicable following the Closing Date, Seller and in any event within one hundred twenty (120) days thereafter, Buyer shall deliver cause to Buyer a written statementbe prepared and delivered to the Stockholders’ Representative (i) an unaudited consolidated balance sheet of the Company and its Subsidiaries as of 5:00 PM (Eastern time) on the Business Day immediately preceding the Closing Date (the “Closing Balance Sheet”), together with a statement setting forth Buyer’s calculation of the Net Closing Working Capital Adjustment as derived from the Closing Balance Sheet, (ii) a statement setting forth Buyer’s calculation of the Transaction Expenses, (iii) a statement setting forth Buyer’s calculation of the Closing Indebtedness and (iv) a statement * Omitted information is the subject of a request for confidential treatment pursuant to Rule 24b-2 under the Securities Exchange Act of 1934 and has been filed separately with the Securities and Exchange Commission. setting forth Buyer’s calculation of the Closing Cash, in each case, as set forth on a statement in a form reasonably detailed acceptable to the Stockholders’ Representative, along with reasonable supporting documentation (detail to evidence the “Estimated calculations of such amounts. The Closing Statement”)Balance Sheet and Buyer’s calculations of the Net Closing Working Capital Adjustment, which the Transaction Expenses, the Closing Indebtedness and the Closing Cash shall be prepared in accordance with GAAP and using the Accounting Principles same accounting principles, practices, policies and methodologies used in the applicable definitions contained herein, setting forth (i) its good faith estimate of (A) the Closing Date Net Working Capital (the “Estimated Closing Date Net Working Capital”), (B) the Indebtedness as of immediately prior to the Closing (the “Estimated Closing Date Indebtedness”), (C) the Cash and Cash Equivalents preparation of the Purchased Subsidiaries as of immediately prior to the Closing , not to exceed an amount equal to $2,500,000 (the “Estimated Closing Date Cash”) and (D) the Transaction Expenses (the “Estimated Transaction Expenses”), (ii) its calculation of the Estimated Net Working Capital Adjustment Amount, and (iii) its resulting calculation of the Purchase Price under Section 2.02(a) (the “Estimated Purchase Price”)Company Financial Statements.
(b) Within After the delivery of the Closing Balance Sheet, the Net Closing Working Capital Adjustment, the Transaction Expenses, the Closing Indebtedness and the Closing Cash in accordance with Section 3.3(a), at the Stockholders’ Representative’s request, Buyer shall cause the Surviving Company and its Subsidiaries, including their respective Representatives, to reasonably cooperate with the Stockholders’ Representative and its Representatives in their review of the Closing Balance Sheet and Buyer’s calculations of the Net Closing Working Capital Adjustment, the Transaction Expenses, the Closing Indebtedness and the Closing Cash and shall provide to the Stockholders’ Representative and its Representatives information that they may reasonably request and access during normal business hours to the personnel, properties, working papers, books and records of the Surviving Company and its Subsidiaries for such purpose.
(c) Unless the Stockholders’ Representative notifies Buyer in writing within sixty (60) days following the Closing Date, Buyer shall prepare and deliver to Seller a statement (the “Closing Statement”) which shall be prepared in accordance with the Accounting Principles and the applicable definitions contained herein, setting forth (i) a calculation after Buyer’s delivery of the Closing Date Balance Sheet, the Net Closing Working CapitalCapital Adjustment, (ii) a calculation of the Indebtedness as of immediately prior to the Closing (the “Closing Date Indebtedness”), (iii) a calculation of the Cash and Cash Equivalents of the Purchased Subsidiaries as of immediately prior to the Closing, not to exceed an amount equal to $2,500,000 (the “Closing Date Cash”) and (iv) a calculation of the Transaction Expenses. Nothing in this Section 2.04 is intended to be used to adjust for errors, omissions or inconsistencies that may be found with respect to the Financial Statements, or any actual or alleged failure of the Financial Statements to be prepared in accordance with GAAP or in good faith. Following the Closing, Buyer shall provide Seller and its Representatives reasonable access, during normal business hours and upon reasonable prior notice, to the records, properties, personnel and (subject to the execution of customary work paper access letters) auditors of Buyer utilized in the preparation of the Closing Statement and shall cause the personnel of Buyer and its Subsidiaries (including the Purchased Subsidiaries) involved in the preparation of the Closing Statement to reasonably cooperate, during normal business hours and upon reasonable prior notice, with Seller and its Representatives in connection with their review of the Closing Statement.
(c) If Seller disagrees with the calculation of the Closing Date Net Working Capital, the Closing Date Indebtedness, the Transaction Expenses and/or the Closing Date Cash, it shall notify Buyer of such disagreement in writing, setting forth in reasonable detail the particulars of such disagreement, within forty-five (45) days after its receipt of the Closing Statement. In the event that Seller does not provide such a notice of disagreement within such forty-five (45)-day period, Seller shall be deemed to have accepted the Closing Statement and the calculation of the Closing Date Net Working Capital, the Closing Date Indebtedness and the Closing Date Cash delivered by in accordance with Section 3.3(a), and the supporting detail with respect thereto, of any objection to the computations set forth in the Closing Balance Sheet or Buyer’s calculations of the Net Closing Working Capital Adjustment, which the Transaction Expenses, the Closing Indebtedness or the Closing Cash (the “Notice of Objection”), the Closing Balance Sheet and Buyer’s calculations of the Net Closing Working Capital Adjustment, the Transaction Expenses, the Closing Indebtedness and the Closing Cash shall be final, final and binding and conclusive for all purposes hereunder. In Any Notice of Objection shall specify in reasonable detail the event basis for the objections set forth therein and shall include the Stockholders’ Representative’s calculation of any amounts that are disputed by such notice Notice of disagreement is timely providedObjection (the “Disputed Amounts”) to the extent that such amounts may be determined (it being understood that an objection to one or more of the foregoing amounts shall not prevent any other amount from becoming final and binding for all purposes hereunder).
(d) If the Stockholders’ Representative provides such Notice of Objection to Buyer within such 60-day period, Buyer and Seller shall use commercially reasonable efforts for a the Stockholders’ Representative shall, during the 60-day period following the Stockholders’ Representative’s delivery of forty-five (45) days (or such longer period as they may mutually agree) Notice of Objection to Buyer, attempt in good faith to resolve any disagreements with respect to Disputed Amounts. If Buyer and the calculations of the Closing Date Net Working Capital, the Closing Date Indebtedness, the Transaction Expenses or the Closing Date Cash (or of any line item contained in any of the foregoing), and all such discussions related thereto shall (unless otherwise agreed by Seller and Buyer) be governed by Rule 408 of the Federal Rules of Evidence and any applicable similar state rule. If, at the end of such period, they Stockholders’ Representative are unable to resolve all such disagreementsDisputed Amounts within such period, then ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP (or such other independent the matters remaining in dispute shall be submitted to a nationally recognized public accounting or financial consulting firm of recognized national standing as may be mutually selected agreed upon by Buyer and Seller) the Stockholders’ Representative (such accounting firm being referred to herein as the “AuditorIndependent Accountant”) shall resolve any remaining disagreements). Seller and Buyer The parties shall instruct the Auditor Independent Accountant to determine render its decision as promptly as practicablepossible, but in any event within forty-five no later than sixty (4560) days of the date on which such dispute is referred to the Auditor, whether the Closing Statement was prepared in accordance with the standards set forth in the Accounting Principles and the applicable definitions contained herein and (only with respect to the remaining disagreements submitted to the Auditor) whether and to what extent (if any) the Closing Date Net Working Capital, the Closing Date Indebtedness, the Transaction Expenses or the Closing Date Cash require adjustment; provided, that in resolving any disputed amount in connection with such determination, the Auditor may not assign a value to the Closing Date Net Working Capital, the Closing Date Indebtedness, the Transaction Expenses or the Closing Date Cash greater than the greatest amount for such value, or less than the smallest amount for such value, in either case, claimed by Buyer in the Closing Statement or Seller in after its notice of disagreement delivered pursuant to this Section 2.04(c)selection. The Auditor shall Independent Accountant will consider only those items and * Omitted information is the subject of a request for confidential treatment pursuant to Rule 24b-2 under the Securities Exchange Act of 1934 and has been filed separately with the Securities and Exchange Commission. amounts in Buyerthe Stockholders’ Representative’s and SellerBuyer’s respective calculations (as set forth in the Closing Statement and the notice of disagreement described above, respectively) of the Net Closing Date Net Working Capital, the Closing Date IndebtednessCapital Adjustment, the Transaction Expenses, the Closing Indebtedness and the Closing Date Cash that are identified as being items and amounts to which the Stockholders’ Representative and Buyer and Seller have been unable to agree and shall only be permitted agree. In resolving any disputed item, the Independent Accountant may not assign a value to determine whether any item greater than the greatest value for such items are calculated in accordance with item claimed by the Accounting Principles Stockholders’ Representative or Buyer or less than the smallest value for such item claimed by either of them. The Surviving Company and the applicable definitions contained hereinStockholders’ Representative shall each furnish to the Independent Accountant such work papers and other documents and information relating to the Disputed Amounts as the Independent Accountant may reasonably request. The resolution of the Disputed Amounts by the Independent Accountant shall be final and binding, and Buyer and Seller shall instruct the Auditor not to make any other determination, including any determination as to whether the Target Net Working Capital or any estimates on the Estimated Closing Statement are correct, adequate or sufficient. The fees and expenses of the Auditor shall be paid one-half by Buyer (or its Subsidiaries) and one-half by Seller (or the Retained Entities). Absent manifest error, the determination of the Auditor Independent Accountant shall be constitute an arbitral award that is final, binding and conclusive on the Parties unappealable and shall not be subject to appeal or further review; provided, however, that the Parties shall be entitled to have upon which a judgment may be entered upon the written by a court having jurisdiction thereover. After final determination of the Auditor Net Closing Working Capital Adjustment, the Transaction Expenses, the Closing Indebtedness and the Closing Cash, the Stockholders’ Representative shall have no further right to make any claims in accordance with Section 10.07. respect of any element of the foregoing amounts that the Stockholders’ Representative raised in the Notice of Objection.
(e) The date on which the Net Closing Date Net Working CapitalCapital Adjustment, the Transaction Expenses, the Closing Date Indebtedness, the Transaction Expenses Indebtedness and the Closing Date Cash are finally determined in accordance with this Section 2.04(c) 3.3 is hereinafter referred as to as the “Determination Date.”
” Buyer and the Stockholders’ Representative (don behalf of the Securityholders) The “Adjustment Amount,” which may shall each pay their own costs and expenses incurred in connection with the resolution of the Disputed Amounts; provided, that the fees and expenses of the Independent Accountant shall be positive or negative, shall mean (i) allocated between Buyer and the Closing Date Net Working Capital Stockholders’ Representative in the same proportion that the total amount of the Disputed Amounts submitted to the Independent Accountant that is unsuccessfully disputed by each such party (as finally determined in accordance with Section 2.04(c)), minus the Estimated Closing Date Net Working Capital, plus (ii) the Estimated Closing Date Indebtedness, minus the Closing Date Indebtedness (as finally determined in accordance with Section 2.04(c)), plus (iii) the Closing Date Cash (as finally determined in accordance with Section 2.04(c)), minus the Estimated Closing Date Cash, plus (iv) the Estimated Transaction Expenses minus the Transaction Expenses (as finally determined in accordance with Section 2.04(c)). If the Adjustment Amount is a positive number, then the Purchase Price shall be increased by the Adjustment Amount Independent Accountant) bears to the total amount of the Disputed Amounts so submitted by each such party (e.g., should the “Increase Amount”)items in dispute total in amount to $1,000 and the Independent Accountant awards $600 in favor of Buyer’s position, and if 60% of the Adjustment Amount is a negative number, then the Purchase Price shall costs of its review would be decreased borne by the absolute value Stockholders’ Representative and 40% of the Adjustment Amount (the “Deficit Amount”). The Adjustment Amount shall costs would be paid in accordance with Section 2.04(eborne by Buyer).
(e) If there is an Increase Amount, then, promptly following the Determination Date, and in any event within five (5) Business Days of the Determination Date, Buyer shall pay to Seller (and/or one or more Retained Entities designated by Seller) an amount in cash equal to the Increase Amount in immediately available funds by wire transfer to an account or accounts designated by Seller, by written notice to Buyer. If there is a Deficit Amount, then, promptly following the Determination Date, and in any event within five (5) Business Days of the Determination Date, Seller shall pay, or shall cause to be paid, to Buyer an amount in cash equal to the Deficit Amount in immediately available funds by wire transfer to an account or accounts designated by Buyer, by written notice to TransUnion. For U.S. federal income and other applicable Tax purposes, to the extent permitted by applicable Law, any Increase Amount or Deficit Amount pursuant to this Section 2.04 shall be treated as an adjustment to the portion of the Purchase Price attributable to the relevant Purchased Interests.
Appears in 1 contract
Adjustment Amount. (a) Not less than three (3) Business Days prior to the Closing Date and in no event more than ten (10) Business Days prior to the Closing Date, Seller shall deliver to Buyer a written statement, together with As soon as reasonably detailed supporting documentation (the “Estimated Closing Statement”), which shall be prepared in accordance with the Accounting Principles and the applicable definitions contained herein, setting forth (i) its good faith estimate of (A) the Closing Date Net Working Capital (the “Estimated Closing Date Net Working Capital”), (B) the Indebtedness as of immediately prior to the Closing (the “Estimated Closing Date Indebtedness”), (C) the Cash and Cash Equivalents of the Purchased Subsidiaries as of immediately prior to the Closing , not to exceed an amount equal to $2,500,000 (the “Estimated Closing Date Cash”) and (D) the Transaction Expenses (the “Estimated Transaction Expenses”), (ii) its calculation of the Estimated Net Working Capital Adjustment Amount, and (iii) its resulting calculation of the Purchase Price under Section 2.02(a) (the “Estimated Purchase Price”).
(b) Within sixty (60) days practicable following the Closing Date, Buyer and in any event within seventy-five (75) days thereof, Acquiror shall prepare and deliver to Seller a statement the Holder Representative (i) an unaudited consolidated balance sheet of the Company and its Subsidiaries (the “Closing StatementBalance Sheet”) which shall be prepared in accordance with the Accounting Principles and the applicable definitions contained herein, setting forth (i) a calculation of the Closing Date Net Working Capital), (ii) a calculation of Net Working Capital (“Closing Date Net Working Capital”) prepared in accordance with the NWC Methodology, (iii) a calculation of the aggregate amount of all Indebtedness as of immediately prior to the Closing Company (the “Closing Date Indebtedness”), (iiiiv) a calculation of the Cash and Cash Equivalents of the Purchased Subsidiaries as of immediately prior to the Closing, not to exceed an amount equal to $2,500,000 Company (the “Closing Date Cash”) ), and (ivv) a calculation of the unpaid and accrued Transaction Expenses (“Closing Date Unpaid Transaction Expenses. Nothing ”), in each case, calculated as of 12:01 a.m. Pacific Time on the Closing Date (provided that Taxes included in such calculation shall be calculated as of 11:59 p.m. Pacific Time on the Closing Date but shall exclude any Taxes incurred as a result of any actions set forth in the proviso to Section 8.2(a)(iv)) consistent (except as provided in this Section 2.04 is intended to be used to adjust for errors, omissions or inconsistencies that may be found 3.4(a)) with respect the Closing Balance Sheet without giving effect to the Financial Statements, consummation of the Merger or any actual financing transactions in connection therewith or, after the Effective Time, any other action or alleged failure omission by Acquiror, the Surviving Corporation or any of its Subsidiaries that is not in the Financial Statements ordinary course of business consistent with past practice (provided that Taxes included in such calculation shall be calculated as of 11:59 p.m. Pacific Time on the Closing Date but shall exclude any Taxes incurred as a result of any actions set forth in the proviso to Section 8.2(a)(iv)). The Closing Balance Sheet shall be prepared in accordance with GAAP or applied in good faith. Following a manner consistent with the Closingaccounting principles, Buyer shall provide Seller practices and its Representatives reasonable access, during normal business hours and upon reasonable prior notice, to the records, properties, personnel and (subject to the execution of customary work paper access letters) auditors of Buyer utilized methodologies applied in connection with the preparation of the Closing Statement and shall cause the personnel of Buyer and its Subsidiaries (including the Purchased Subsidiaries) involved most recent audited balance sheet included in the preparation Financial Statements (the “Reference Balance Sheet”). For the purpose of the Closing Statement to reasonably cooperate, during normal business hours and upon reasonable prior notice, with Seller and its Representatives in connection with their review of the Closing Statement.
(c) If Seller disagrees with the calculation of the determining Closing Date Net Working Capital, the consolidated current assets and current liabilities of the Company and its Subsidiaries shall exclude the value of all Transaction Expenses.
(b) If the Holder Representative disagrees with the calculation of Closing Date Net Working Capital, Closing Date Indebtedness, the Transaction Expenses and/or the Closing Date CashCash and/or Closing Date Unpaid Transaction Expenses, it shall notify Buyer Acquiror of such disagreement in writing, setting forth in reasonable detail the particulars of such disagreement, within forty-five fifteen (4515) days after its receipt of the Closing StatementBalance Sheet. In the event that Seller the Holder Representative does not provide such a notice of disagreement within such forty-five fifteen (45)-day 15)-day period, Seller the Holder Representative shall be deemed to have accepted the Closing Statement Balance Sheet and the calculation of the Closing Date Net Working Capital, the Closing Date Indebtedness and the Indebtedness, Closing Date Cash and Closing Date Unpaid Transaction Expenses delivered by BuyerAcquiror, which shall be final, binding and conclusive for all purposes hereunder. In the event any such notice of disagreement is timely provided, Buyer Acquiror and Seller the Holder Representative shall use commercially reasonable best efforts for a period of forty-five thirty (4530) days (or such longer period as they may mutually agreeagree in writing) to resolve any such disagreements with respect specified in such notice. During such time, Acquiror shall provide the Holder Representative and its representatives reasonable access (during normal business hours and upon reasonable advance notice), to the calculations relevant financial books and records of the Company and its Subsidiaries relating to the preparation of the Closing Date Net Working CapitalBalance Sheet, solely for the purposes of the review and objection right contemplated herein, together with reasonable access to the individuals responsible for the preparation of the Closing Date Indebtedness, Balance Sheet in order to respond to the Transaction Expenses or the Closing Date Cash (or of any line item contained in any inquiries of the foregoing), Holder Representative and all such discussions its representatives related thereto shall (unless otherwise agreed by Seller and Buyer) be governed by Rule 408 of the Federal Rules of Evidence and any applicable similar state rulethereto. If, at the end of such period, they are unable to resolve such disagreements, then ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP (or such other independent accounting or financial consulting firm of recognized national standing as may be mutually selected by Buyer Acquiror and Seller) the Holder Representative (the “Auditor”) shall resolve any remaining disagreementsdisagreements properly included in such notice of disagreement between the parties with respect to the calculation of Closing Date Net Working Capital, Closing Date Indebtedness, Closing Date Cash and/or Closing Date Unpaid Transaction Expenses. Seller Each of Acquiror and Buyer the Holder Representative shall instruct promptly provide their assertions regarding such disagreements in writing to the Auditor and to determine each other. The Auditor shall be instructed to render its determination with respect to such disagreements as promptly soon as practicable, but in any event within forty-five reasonably possible (45which the parties hereto agree should not be later than thirty (30) days of following the date day on which any such dispute is disagreements are referred to the Auditor, whether ). The Auditor shall base its determination solely on (i) the Closing Statement was prepared in accordance with written submissions of the standards set forth in the Accounting Principles and the applicable definitions contained herein parties and (only with respect to ii) the remaining disagreements submitted to the Auditor) whether and to what extent (if any) to which the Closing Date Net Working Capital, the Closing Date Indebtedness, the Transaction Expenses or the Closing Date Cash require adjustment; provided, that in resolving any disputed amount in connection with such determination, the Auditor may not assign a value to the and/or Closing Date Net Working Capital, the Closing Date Indebtedness, the Unpaid Transaction Expenses or require adjustment in order to be determined in accordance with Section 3.4(a) (including the Closing Date Cash greater than definitions of the greatest amount for such value, or less than the smallest amount for such value, defined terms used in either case, claimed by Buyer in the Closing Statement or Seller in its notice of disagreement delivered pursuant to this Section 2.04(c3.4(a)). The Auditor shall consider only those items and amounts in Buyer’s and Seller’s respective calculations (as set forth in the Closing Statement and the notice of disagreement described above, respectively) of the Closing Date Net Working Capital, the Closing Date Indebtedness, the Transaction Expenses, and the Closing Date Cash that are identified as being items and amounts to which Buyer and Seller have been unable to agree and shall only be permitted to determine whether such items are calculated in accordance with the Accounting Principles and the applicable definitions contained herein, and Buyer and Seller shall instruct the Auditor not to make any other determination, including any determination as to whether the Target Net Working Capital or any estimates on the Estimated Closing Statement are correct, adequate or sufficient. The fees and expenses of the Auditor shall be paid one-half by Buyer (or its Subsidiaries) and one-half by Seller (or the Retained Entities). Absent manifest error, the determination of the Auditor shall be final, conclusive and binding and conclusive on the Parties and shall not be subject to appeal or further review; provided, however, that the Parties shall be entitled to have a judgment entered upon the written determination of the Auditor in accordance with Section 10.07parties. The date on which the Closing Date Net Working Capital, the Closing Date Indebtedness, the Transaction Expenses and the Closing Date Cash and Closing Date Unpaid Transaction Expenses are finally determined in accordance with this Section 2.04(c3.4(b) is hereinafter referred to as the “Determination Date.”” All fees and expenses of the Auditor relating to the work, if any, to be performed by the Auditor hereunder shall be borne pro rata as between Acquiror, on the one hand, and the Holder Representative (on behalf of the Pre-Closing Holders), on the other hand, in proportion to the allocation of the dollar value of the amounts in dispute between Acquiror and the Holder Representative made by the Auditor such that the party prevailing on the greater dollar value of such disputes pays the lesser proportion of the fees and expenses.
(dc) The “Adjustment Amount,” which may be positive or negative, shall mean mean
(i) the (A) Closing Date Net Working Capital (as finally determined in accordance with Section 2.04(c3.4(b)), minus the (B) Estimated Closing Date Net Working Capital, plus plus
(ii) the (A) Estimated Closing Date Indebtedness, minus the (B) Closing Date Indebtedness (as finally determined in accordance with Section 2.04(c3.4(b)), plus plus
(iiiA) the Closing Date Cash (as finally determined in accordance with Section 2.04(c3.4(b)), minus the (B) Estimated Closing Date Cash, plus plus
(iv) the (A) Estimated Closing Date Unpaid Transaction Expenses Expenses, minus the (B) Closing Date Unpaid Transaction Expenses (as finally determined in accordance with Section 2.04(c3.4(b)). If the Adjustment Amount is a positive number, then the Purchase Price Merger Consideration shall be increased by the Adjustment Amount (the “Increase Amount”), and if the Adjustment Amount is a negative number, then the Purchase Price shall be decreased by number (the absolute value of the Adjustment Amount (such negative amount, the “Deficit Amount”), the Merger Consideration shall be decreased by the Deficit Amount. The Adjustment Amount shall be paid in accordance with Section 2.04(e3.4(d).
(ed) If there the Adjustment Amount is an Increase Amounta positive number, then, promptly following the Determination Date, and in any event within five (5) Business Days of the Determination Date, Buyer the Escrow Agent shall pay to Seller (and/or one the Exchange Agent for further distribution to each Pre-Closing Holder or more Retained Entities designated by Seller) the Surviving Corporation, for onward payment to the Pre-Closing Holders with respect of Canceled Options, in the manner provided in Section 3.2(e), an amount in cash equal to (A) the Increase Amount Purchase Price Escrow Funds, multiplied by (B) such holder’s Applicable Percentage, less any applicable withholding Taxes (other than any income, employment or payroll Taxes required to be withheld in immediately available funds respect of Canceled Options, which Taxes shall be withheld by wire transfer to an account or accounts designated by Seller, by written notice to Buyerthe Surviving Corporation). If there the Adjustment Amount is a Deficit Amountnegative number, then, promptly following the Determination Date, and in any event within five (5) Business Days of the Determination Date, Seller (x) the Escrow Agent shall paypay to Acquiror an amount equal to the Deficit Amount, and (y) if any of the Purchase Price Escrow Funds remain after such payment to Acquiror, the Escrow Agent shall pay to each Pre-Closing Holder or shall cause the Surviving Corporation, for onward payment to be paidthe Pre-Closing Holders with respect to Canceled Options, to Buyer in the manner provided in Section 3.2(e) an amount in cash equal to (i) the Deficit balance of the Purchase Price Escrow Funds, multiplied by (ii) such holder’s Applicable Percentage, less any applicable withholding Taxes (other than any income, employment or payroll Taxes required to be withheld in respect of Employee Options, which Taxes shall be withheld by the Surviving Corporation) (in each case, following deduction from the Purchase Price Escrow Funds of any incremental Transaction Expenses). Upon determination of the Adjustment Amount pursuant to Section 3.4(b) and Section 3.4(c), each of Acquiror and the Holder Representative shall execute joint written instructions to the Escrow Agent instructing the Escrow Agent to disburse the Purchase Price Escrow Funds in immediately available funds accordance with this Section 3.4(d). In the event that Acquiror is entitled to payment pursuant to this Section 3.4(d) in an amount in excess of the Purchase Price Escrow Funds (such excess, the “Adjustment Overage Amount”), Acquiror shall be entitled to payment of, and the Escrow Agent shall pay (concurrent with the payment of the Purchase Price Escrow Funds), the Adjustment Overage Amount, from and to the extent of the Indemnification Escrow Funds. In the event that the Adjustment Amount is a positive number in an amount in excess of the Purchase Price Escrow Funds, then, promptly following the Determination Date and prior to the delivery of joint instructions to the Escrow Agent as provided in this Section 3.4(d), Acquiror shall deposit with the Exchange Agent for deposit into the escrow account (and forming part of the Purchase Price Escrow Funds), the amount by wire transfer which the Adjustment Amount exceeds the Purchase Price Escrow Funds, for further distribution in accordance with this Section 3.4(d).
(e) Any payment or disbursement pursuant to an account or accounts designated this Section 3.4 shall be treated by Buyer, by written notice the parties hereto for all Tax purposes as adjustments to TransUnion. For U.S. federal income and other applicable Tax purposes, the Merger Consideration to the extent permitted by applicable Law, any Increase Amount or Deficit Amount pursuant to this Section 2.04 shall be treated as an adjustment to the portion of the Purchase Price attributable to the relevant Purchased Interests.
Appears in 1 contract
Adjustment Amount. (a) Not less than three (3) Business Days prior to the Closing Date and in no event more than ten (10) Business Days prior to As soon as reasonably practicable following the Closing Date, Seller and in any event within 90 calendar days thereof, Buyer shall prepare and deliver to Buyer Seller, (i) a written statementcalculation of Closing Net Working Capital, (ii) a calculation of the aggregate amount of all Closing Indebtedness, (iii) a calculation of Closing Cash, (iv) a calculation of Transaction Expenses, (v) a calculation of the Closing Net Working Capital Adjustment Amount, and (vi) on the basis of the foregoing, a calculation of the Closing Purchase Price (together with reasonably detailed supporting documentation (the calculations referred to in the preceding clauses (i) through (vi) the “Estimated Final Closing Statement”). The calculations of Closing Net Working Capital, which Closing Indebtedness, Transaction Expenses and Closing Cash shall be prepared in accordance with the Accounting Principles and the applicable definitions contained defined terms used herein; provided, setting forth however, that the Final Closing Statement (iand any amounts included therein) shall not give effect to the consummation of the transactions contemplated by this Agreement, including any act or omission by Buyer or any of its good faith estimate of (A) Subsidiaries or the Companies taken at, after or in connection with the Closing Date Net Working Capital (or reflect any payments of cash in respect of the “Estimated Purchase Price, or any financing transactions in connection therewith or reflect any expense or liability for which Buyer is responsible under this Agreement. Nothing in this Section 2.06 is intended to be used to adjust for errors or omissions that may be found with respect to the Financial Statements; provided that the foregoing shall not override the primary principle that the calculations of Closing Date Net Working Capital”), (B) the Indebtedness as of immediately prior to the Closing (the “Estimated Closing Date Indebtedness”), (C) the Cash and Cash Equivalents of the Purchased Subsidiaries as of immediately prior to the Closing , not to exceed an amount equal to $2,500,000 (the “Estimated Closing Date Cash”) and (D) the Transaction Expenses (the “Estimated Transaction Expenses”), (ii) its calculation of the Estimated Net Working Capital Adjustment Amount, and (iii) its resulting calculation of the Purchase Price under Section 2.02(a) (the “Estimated Purchase Price”).
(b) Within sixty (60) days following the Closing Date, Buyer shall prepare and deliver to Seller a statement (the “Closing Statement”) which Cash shall be prepared in accordance with the Accounting Principles and defined terms used herein. No change in GAAP or Applicable Law after the applicable definitions contained hereinBalance Sheet Date, shall be taken into consideration in the calculations to be made pursuant to Section 2.04 or this Section 2.06. If Buyer fails to timely deliver the Final Closing Statement in accordance with the first sentence of this Section 2.06(a) within such 90-day period (the “Review Period”), then, at the election of Seller in its sole discretion either (x) the Preliminary Closing Statement delivered by Seller to Buyer pursuant to Section 2.04 shall be deemed to be the Final Closing Statement for all purposes hereunder or (y) Seller may elect to deliver its own Final Closing Statement within 30 days of the end of the Review Period setting forth (i) a calculation its good faith calculations of the Closing Date Net Working Capital, (ii) a calculation Closing Indebtedness, Closing Cash, Transaction Expenses, the Closing Net Working Capital Adjustment Amount and, on the basis of the Indebtedness as of immediately prior foregoing, the Closing Purchase Price (subject to Buyer’s right to review and object to the Final Closing Statement within a Review Period, with the roles of Seller and Buyer contemplated by this Section 2.06 (other than Section 2.06(e)) reversed).
(b) Following the “Closing Date Indebtedness”), (iii) a calculation delivery of the Cash and Cash Equivalents of the Purchased Subsidiaries as of immediately prior to the Closing, not to exceed an amount equal to $2,500,000 (the “Final Closing Date Cash”) and (iv) a calculation of the Transaction Expenses. Nothing in this Section 2.04 is intended to be used to adjust for errors, omissions or inconsistencies that may be found with respect to the Financial Statements, or any actual or alleged failure of the Financial Statements to be prepared in accordance with GAAP or in good faith. Following the ClosingStatement, Buyer shall provide Seller and its Representatives with reasonable access, during normal business hours access to all relevant information and upon reasonable prior notice, to personnel of the records, properties, personnel Companies and Buyer and all of the Companies’ and Buyer’s documents and work papers (subject to including those of the execution of customary work paper access lettersCompanies’ accountants and auditors) auditors of Buyer utilized used in or for the preparation of the Final Closing Statement and shall cause the personnel of Buyer and its Subsidiaries (including the Purchased Subsidiaries) involved Statement, in the preparation of the Closing Statement to each case, as Seller or such Representative reasonably cooperate, during normal business hours and upon reasonable prior notice, with Seller and its Representatives requests in connection with their review or preparation, as applicable, of the Final Closing Statement, and subject to entry into customary confidentiality and access letters if requested; provided that (i) all such access shall occur during normal business hours, with reasonable notice and in a manner that does not unreasonably interfere with the conduct of the business of Buyer and its Affiliates (including the Companies) and (ii) Buyer shall not be required to provide or cause to be provided access to or disclose or cause to be disclosed information where such access or disclosure would jeopardize the attorney-client privilege, contravene any Applicable Law or contravene any confidentiality undertaking (provided, further, however, that Buyer shall, and shall cause its Affiliates (including the Companies) to, use commercially reasonable efforts to provide alternative, redacted or substitute documents or information in a manner that would not result in the loss of the ability to assert attorney-client, work product or other privileges, violate any Applicable Law or such applicable agreement).
(c) If Seller disagrees shall disagree with any of Buyer’s calculations contained in the calculation of the Final Closing Date Net Working CapitalStatement, the Closing Date Indebtedness, the Transaction Expenses and/or the Closing Date Cash, it Seller shall notify Buyer of such disagreement in writing, setting forth in reasonable detail the particulars of such disagreement, within forty-five (45) 45 days after its receipt of the Final Closing Statement. In the event that Seller does not provide such a notice of disagreement within such forty45-five (45)-day day period, Seller shall be deemed to have accepted agreed to the Final Closing Statement and (including the calculation of the Closing Date Net Working Capital, the Closing Date Indebtedness and the Closing Date Cash determinations included therein) delivered by Buyer, which shall be final, binding and conclusive for all purposes hereunder. In the event any such notice of disagreement is timely provided, Buyer and Seller shall use their respective commercially reasonable efforts for a period of forty-five (45) 30 days (or such longer period as they may mutually agree) to resolve any disagreements with respect to the any calculations of the Closing Date Net Working Capital, the Closing Date Indebtedness, the Transaction Expenses or the Closing Date Cash (or of any line item contained in any of the foregoing), and all such discussions related thereto shall (unless otherwise agreed by Seller and Buyer) be governed by Rule 408 of the Federal Rules of Evidence and any applicable similar state ruleFinal Closing Statement. If, at the end of such period, they Buyer and Seller are unable to resolve such disagreements, then ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP any such remaining disagreements (such remaining disagreements, the “Disputed Items”) shall, at the written request of either Buyer or such other independent Seller, be resolved by a nationally recognized accounting or financial consulting firm of recognized national standing as may be mutually selected by whom Buyer and Seller) Seller shall promptly thereafter jointly retain, which firm shall not have any material relationship with Buyer or Seller or any of their respective Affiliates (such firm, the “Auditor”) ). Buyer and Seller shall resolve any remaining disagreements. Seller and Buyer shall instruct promptly provide their assertions regarding the Disputed Items in writing to the Auditor and to determine each other. The Auditor shall be instructed to render its determination with respect to the Disputed Items as promptly soon as practicable, but in any event within forty-five reasonably possible (45) which the parties hereto agree should not be later than 60 days of following the date on which such dispute the disagreement is referred to the Auditor, whether ). The Auditor shall base its determination solely on (i) the Closing Statement was prepared in accordance with written submissions of the standards set forth in the Accounting Principles parties (and the applicable definitions contained herein Auditor shall not conduct an independent investigation) and (ii) the extent (if any) to which Closing Net Working Capital, Closing Indebtedness, Closing Cash and/or Transaction Expenses require adjustment (only with respect to the remaining disagreements Disputed Items submitted to the Auditor) whether and in order to what extent be determined in accordance with Section 2.06(a) (if any) including the Closing Date Net Working Capital, definitions of the Closing Date Indebtedness, the Transaction Expenses or the Closing Date Cash require adjustment; provided, that defined terms used in resolving any disputed amount in connection with such determination, the Section 2.06(a)). The Auditor may shall not assign a value to any Disputed Item submitted to the Closing Date Net Working Capital, the Closing Date Indebtedness, the Transaction Expenses or the Closing Date Cash Auditor greater than the greatest amount value for such value, item claimed by either party or less than the smallest amount value for such value, in either case, item claimed by Buyer in the Closing Statement or Seller in its notice of disagreement delivered pursuant to this Section 2.04(c)either party. The Auditor shall consider only those items and amounts in Buyer’s and Seller’s respective calculations (as set forth in the Closing Statement and the notice of disagreement described above, respectively) of the Closing Date Net Working Capital, the Closing Date Indebtedness, the Transaction Expenses, and the Closing Date Cash that are identified as being items and amounts to which Buyer and Seller have been unable to agree and shall only be permitted to determine whether such items are calculated in accordance with the Accounting Principles and the applicable definitions contained herein, and Buyer and Seller shall instruct the Auditor not to make any other determination, including any determination as to whether the Target Net Working Capital or any estimates on the Estimated Closing Statement are correct, adequate or sufficient. The fees and expenses of the Auditor shall be paid one-half by Buyer (or its Subsidiaries) and one-half by Seller (or the Retained Entities). Absent manifest error, the determination of the Auditor shall be final, conclusive and binding and conclusive on the Parties and shall not be subject to appeal parties absent fraud or further review; provided, however, that the Parties shall be entitled to have a judgment entered upon the written determination of the Auditor in accordance with Section 10.07manifest error. The date on which the Closing Date Net Working Capital, Closing Indebtedness, Closing Cash, Transaction Expenses, the Closing Date Indebtedness, the Transaction Expenses Net Working Capital Adjustment Amount and the Closing Date Cash Purchase Price are finally determined in accordance with Section 2.06(a) or this Section 2.04(cSection 2.06(c) is hereinafter referred to as the “Determination Date.”” The fees, costs and expenses of such review and report by the Auditor shall be borne pro rata as between Seller, on the one hand, and Buyer, on the other hand, in proportion to the final allocation made by the Auditor of the Disputed Items in relation to the claims made by Seller and Buyer, such that the prevailing party pays the lesser proportion of such fees, costs and expenses. For example, if Buyer timely submits a notice of disagreement to Seller for items totaling $1,000, and if Seller contests only $500 of such amount as Disputed Items that are submitted to the Auditor, and the Auditor ultimately resolves the dispute by awarding Buyer $300 of the $500 contested, then the fees, costs and expenses of the Auditor will be allocated 60% (i.e., 300/500) to Seller and 40% (i.e., 200/500) to Buyer. All other fees, costs and expenses incurred by the parties in connection with resolving such disagreement shall be borne by the party incurring such fee, cost or expense.
(d) The “Adjustment Amount,” which may be positive or negative, shall mean (i) the Closing Date Net Working Capital Purchase Price (as finally determined in accordance with Section 2.04(c)Section 2.06(a) or 2.06(c), as applicable) minus the Estimated Closing Date Net Working Capital, plus (ii) the Estimated Closing Date Indebtedness, minus the Closing Date Indebtedness (as finally determined in accordance with Section 2.04(c)), plus (iii) the Closing Date Cash (as finally determined in accordance with Section 2.04(c)), minus the Estimated Closing Date Cash, plus (iv) the Estimated Transaction Expenses minus the Transaction Expenses (as finally determined in accordance with Section 2.04(c)). If the Adjustment Amount is a positive number, then the Purchase Price shall be increased by the Adjustment Amount (the “Increase Amount”), and if the Adjustment Amount is a negative number, then the Purchase Price shall be decreased by the absolute value of the Adjustment Amount (the “Deficit Amount”)Price. The Adjustment Amount shall be paid in accordance with Section 2.04(eSection 2.06(e).
(e) If there the Adjustment Amount is an a positive number (such amount, the “Increase Amount”), then, promptly following the Determination Date, and in any event within five (5) three Business Days of the Determination Date, Buyer shall pay to Seller (and/or one or more Retained Entities designated by Seller) an amount in cash equal to the Increase Amount in immediately available funds by wire transfer to an account or accounts designated by Seller, by written notice to Buyer. If there the Adjustment Amount is a Deficit negative number (such amount, the “Decrease Amount”), then, promptly following the Determination Date, and in any event within five (5) three Business Days of the Determination Date, Seller shall pay, or shall cause to be paid, pay to Buyer an amount in cash equal to the Deficit absolute value of the Decrease Amount in immediately available funds by wire transfer to an account or accounts designated by Buyer, by written notice to TransUnion. For U.S. federal income and other applicable Tax purposes, to the extent permitted by applicable Law, any Increase Amount or Deficit Amount pursuant to this Section 2.04 shall be treated as an adjustment to the portion of the Purchase Price attributable to the relevant Purchased Interests.
Appears in 1 contract
Adjustment Amount. (a) Not less than three (3) Business Days prior to the Closing Date and in no event more than ten (10) Business Days prior to As soon as reasonably practicable following the Closing Date, Seller and in any event within 75 calendar days thereof, Buyer shall prepare and deliver to Buyer Seller, (i) a written statementcalculation of Closing Net Working Capital, (ii) a calculation of the aggregate amount of all Closing Indebtedness, (iii) a calculation of Closing Cash, (iv) a calculation of Transaction Expenses, (v) Buyer’s calculation of the Closing Net Working Capital Adjustment Amount, and (vi) on the basis of the foregoing, a calculation of the Closing Purchase Price (together with reasonably detailed supporting documentation the calculations referred to in clauses (i) through (vi) above, the “Estimated Final Closing Statement”). The Closing Net Working Capital, which Closing Indebtedness and Closing Cash shall be prepared in accordance with the Accounting Principles and the applicable definitions contained hereindefined terms used in this Section 2.06(a); provided, setting forth however, the Final Closing Statement (iand any amounts included therein) shall not give effect to the consummation of the transactions contemplated by this Agreement, including any act or omission by Buyer or any of its good faith estimate of (A) Subsidiaries or the Companies taken at, after or in connection with the Closing Date Net Working Capital (the “Estimated Closing Date Net Working Capital”), (B) the Indebtedness as or reflect any payments of immediately prior to the Closing (the “Estimated Closing Date Indebtedness”), (C) the Cash and Cash Equivalents of the Purchased Subsidiaries as of immediately prior to the Closing , not to exceed an amount equal to $2,500,000 (the “Estimated Closing Date Cash”) and (D) the Transaction Expenses (the “Estimated Transaction Expenses”), (ii) its calculation of the Estimated Net Working Capital Adjustment Amount, and (iii) its resulting calculation cash in respect of the Purchase Price, or any financing transactions in connection therewith or reflect any expense or liability for which Buyer is responsible under this Agreement. For the avoidance of doubt, the calculations and the purchase price adjustment to be made pursuant to this Section 2.06 are only meant to reflect the proper calculation of Closing Purchase Price under Section 2.02(a(and the inputs thereto) (the “Estimated Purchase Price”).
(b) Within sixty (60) days following the Closing Date, Buyer shall prepare and deliver to Seller a statement (the “Closing Statement”) which shall be prepared in accordance with the Accounting Principles applicable definitions contained therein and otherwise in this Agreement and the applicable definitions contained herein, setting forth (i) a calculation terms and conditions of the Closing Date Net Working Capital, (ii) a calculation of the Indebtedness as of immediately prior to the Closing (the “Closing Date Indebtedness”), (iii) a calculation of the Cash and Cash Equivalents of the Purchased Subsidiaries as of immediately prior to the Closing, not to exceed an amount equal to $2,500,000 (the “Closing Date Cash”) and (iv) a calculation of the Transaction Expensesthis Agreement. Nothing in this Section 2.04 Section 2.06 is intended to be used to adjust for errors, errors or omissions or inconsistencies that may be found with respect to the Financial Statements, Statements or any actual inconsistencies between the Accounting Principles, on the one hand, and GAAP, on the other. No fact or alleged failure of event, including any market or business development, occurring after the Financial Statements Closing, and no change in GAAP or Applicable Law after the Balance Sheet Date, shall be taken into consideration in the calculations to be prepared made pursuant to Section 2.04 or this Section 2.06. If Buyer fails to timely deliver the Final Closing Statement in accordance with GAAP or the first sentence of this Section 2.06(a) within such 75-day period, then, at the election of Seller in good faith. Following its sole discretion either (x) the Closing, Buyer shall provide Seller and its Representatives reasonable access, during normal business hours and upon reasonable prior notice, to the records, properties, personnel and (subject to the execution of customary work paper access letters) auditors of Buyer utilized in the preparation of the Preliminary Closing Statement and shall cause the personnel of delivered by Seller to Buyer and its Subsidiaries (including the Purchased Subsidiaries) involved in the preparation of the Closing Statement pursuant to reasonably cooperate, during normal business hours and upon reasonable prior notice, with Seller and its Representatives in connection with their review of the Closing Statement.
(c) If Seller disagrees with the calculation of the Closing Date Net Working Capital, the Closing Date Indebtedness, the Transaction Expenses and/or the Closing Date Cash, it shall notify Buyer of such disagreement in writing, setting forth in reasonable detail the particulars of such disagreement, within forty-five (45) days after its receipt of the Closing Statement. In the event that Seller does not provide such a notice of disagreement within such forty-five (45)-day period, Seller Section 2.04 shall be deemed to have accepted be the Final Closing Statement and the calculation of the Closing Date Net Working CapitalStatement, the Closing Date Indebtedness and the Closing Date Cash delivered by Buyer, which shall be final, binding and conclusive for all purposes hereunder. In the event any such notice of disagreement is timely provided, Buyer and hereunder or (y) Seller shall use commercially reasonable efforts for a period be entitled to retain (at the sole cost and expense of forty-five (45) days (or such longer period as they may mutually agree) to resolve any disagreements with respect to the calculations of the Closing Date Net Working Capital, the Closing Date Indebtedness, the Transaction Expenses or the Closing Date Cash (or of any line item contained in any of the foregoing), and all such discussions related thereto shall (unless otherwise agreed by Seller and Buyer) be governed by Rule 408 of the Federal Rules of Evidence and any applicable similar state rule. If, at the end of such period, they are unable to resolve such disagreements, then ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP (or such other an independent accounting or financial consulting firm of recognized national standing as may be mutually selected by Buyer and Seller) (the “Auditor”) shall resolve any remaining disagreements. Seller and Buyer shall instruct the Auditor to determine as promptly as practicable, but in any event within forty-five (45) days provide an audit of the date on which such dispute is referred to books of the AuditorCompanies, whether determine the calculation of, and prepare, the Final Closing Statement was prepared in accordance consistent with the standards set forth in the Accounting Principles and the applicable definitions contained herein and (only with respect to the remaining disagreements submitted to the Auditor) whether and to what extent (if any) the Closing Date Net Working Capital, the Closing Date Indebtedness, the Transaction Expenses or the Closing Date Cash require adjustment; provided, that in resolving any disputed amount in connection with such determination, the Auditor may not assign a value to the Closing Date Net Working Capital, the Closing Date Indebtedness, the Transaction Expenses or the Closing Date Cash greater than the greatest amount for such value, or less than the smallest amount for such value, in either case, claimed by Buyer in the Closing Statement or Seller in its notice provisions of disagreement delivered pursuant to this Section 2.04(cSection 2.06(a). The Auditor shall consider only those items and amounts in Buyer’s and Seller’s respective calculations (as set forth in the Closing Statement and the notice of disagreement described above, respectively) of the Closing Date Net Working Capital, the Closing Date Indebtedness, the Transaction Expenses, and the Closing Date Cash that are identified as being items and amounts to which Buyer and Seller have been unable to agree and shall only be permitted to determine whether such items are calculated in accordance with the Accounting Principles and the applicable definitions contained herein, and Buyer and Seller shall instruct the Auditor not to make any other determination, including any determination as to whether the Target Net Working Capital or any estimates on the Estimated Closing Statement are correct, adequate or sufficient. The fees and expenses of the Auditor shall be paid one-half by Buyer (or its Subsidiaries) and one-half by Seller (or the Retained Entities). Absent manifest error, the determination of the Auditor shall be finalsuch independent accounting firm being conclusive, final and binding and conclusive on the Parties and shall not be subject to appeal or further review; provided, however, that the Parties shall be entitled to have a judgment entered upon the written determination of the Auditor in accordance with Section 10.07. The date on which the Closing Date Net Working Capital, the Closing Date Indebtedness, the Transaction Expenses and the Closing Date Cash are finally determined in accordance with this Section 2.04(c) is hereinafter referred to as the “Determination Dateparties hereto.”
(d) The “Adjustment Amount,” which may be positive or negative, shall mean (i) the Closing Date Net Working Capital (as finally determined in accordance with Section 2.04(c)), minus the Estimated Closing Date Net Working Capital, plus (ii) the Estimated Closing Date Indebtedness, minus the Closing Date Indebtedness (as finally determined in accordance with Section 2.04(c)), plus (iii) the Closing Date Cash (as finally determined in accordance with Section 2.04(c)), minus the Estimated Closing Date Cash, plus (iv) the Estimated Transaction Expenses minus the Transaction Expenses (as finally determined in accordance with Section 2.04(c)). If the Adjustment Amount is a positive number, then the Purchase Price shall be increased by the Adjustment Amount (the “Increase Amount”), and if the Adjustment Amount is a negative number, then the Purchase Price shall be decreased by the absolute value of the Adjustment Amount (the “Deficit Amount”). The Adjustment Amount shall be paid in accordance with Section 2.04(e).
(e) If there is an Increase Amount, then, promptly following the Determination Date, and in any event within five (5) Business Days of the Determination Date, Buyer shall pay to Seller (and/or one or more Retained Entities designated by Seller) an amount in cash equal to the Increase Amount in immediately available funds by wire transfer to an account or accounts designated by Seller, by written notice to Buyer. If there is a Deficit Amount, then, promptly following the Determination Date, and in any event within five (5) Business Days of the Determination Date, Seller shall pay, or shall cause to be paid, to Buyer an amount in cash equal to the Deficit Amount in immediately available funds by wire transfer to an account or accounts designated by Buyer, by written notice to TransUnion. For U.S. federal income and other applicable Tax purposes, to the extent permitted by applicable Law, any Increase Amount or Deficit Amount pursuant to this Section 2.04 shall be treated as an adjustment to the portion of the Purchase Price attributable to the relevant Purchased Interests.
Appears in 1 contract
Adjustment Amount. (a) Not less than three (3) Business Days prior to the Closing Date and in no event more than ten (10) Business Days prior to As soon as reasonably practicable following the Closing Date, Seller shall deliver to Buyer a written statement, together with reasonably detailed supporting documentation (the “Estimated Closing Statement”), which shall be prepared and in accordance with the Accounting Principles and the applicable definitions contained herein, setting forth (i) its good faith estimate of (A) the Closing Date Net Working Capital (the “Estimated Closing Date Net Working Capital”), (B) the Indebtedness as of immediately prior to the Closing (the “Estimated Closing Date Indebtedness”), (C) the Cash and Cash Equivalents of the Purchased Subsidiaries as of immediately prior to the Closing , not to exceed an amount equal to $2,500,000 (the “Estimated Closing Date Cash”) and (D) the Transaction Expenses (the “Estimated Transaction Expenses”), (ii) its calculation of the Estimated Net Working Capital Adjustment Amount, and (iii) its resulting calculation of the Purchase Price under Section 2.02(a) (the “Estimated Purchase Price”).
(b) Within sixty (60) any event within 75 calendar days following the Closing Datethereof, Buyer shall prepare and deliver to Seller a statement (i) an unaudited consolidated balance sheet of the Company and its Subsidiaries (the “Closing StatementBalance Sheet”) which shall be prepared in accordance with the Accounting Principles and the applicable definitions contained herein, setting forth (i) a calculation of the Closing Date Net Working Capital), (ii) a calculation of the Indebtedness as of immediately prior to the Closing Net Working Capital (the “Closing Date IndebtednessNet Working Capital”), (iii) a calculation of the Cash and Cash Equivalents aggregate amount of all Funded Debt of the Purchased Subsidiaries as Company Group (“Closing Date Funded Debt”), (iv) a calculation of immediately prior to Cash of the Closing, not to exceed an amount equal to $2,500,000 Company Group (the “Closing Date Cash”) and (ivv) a calculation of Transaction Expenses (the “Closing Date Transaction Expenses. Nothing ”), in each case, calculated as of the close of business on the Business Day immediately prior to the Closing Date consistent (except as provided in this Section 2.04 is intended to be used to adjust for errors, omissions 2.4(a) or inconsistencies that may be found with respect to the Financial Statements, or any actual or alleged failure definitions of the Financial Statements to defined terms used in this Section 2.4(a)) with the Closing Balance Sheet. The Closing Balance Sheet shall be prepared in accordance with GAAP GAAP, consistently applied without modification of the accounting principles used in the preparation thereof throughout the periods presented, except to the extent modified by the illustrative calculation of Net Working Capital and the notes thereto set forth on Schedule 2.4(a) (the “Sample Working Capital Statement”), with the further understanding that (I) the Closing Balance Sheet shall reflect no changes in reserves (regardless of whether any such reserve is recorded as an offset to a Current Asset’s carrying value or is included as an accrued liability in good faiththe Closing Balance Sheet) from amounts contained in the Balance Sheet, other than changes therein attributable to changes in facts and circumstances occurring after the date of the Balance Sheet, (II) except as set forth in the following clause (III), the Closing Balance Sheet shall not give effect to the consummation of the transactions contemplated by this Agreement, including any incurrence by Buyer or its Affiliates (including, after the Closing, the Company Group) of Funded Debt or other financing transactions in connection therewith, payments of cash in respect of the Purchase Price or, after the Closing, any other action or omission by Buyer or the Company Group that is not in the ordinary course of business consistent with past practice, (III) the Closing Balance Sheet shall not reflect any expense for which Buyer is responsible under this Agreement, and (IV) the treatment of leases as capital leases or operating leases shall be identical to their treatment in the Balance Sheet. Following the Closing, Buyer shall shall, upon reasonable advance notice, provide Seller and its Representatives representatives reasonable access, access during normal business hours and upon reasonable prior notice, to the records, properties, personnel and (subject to the execution of customary work paper access lettersletters if requested) work papers prepared by auditors of Buyer utilized in the Company Group relating to the preparation of the Closing Statement Balance Sheet and shall cause the personnel of Buyer the Company and its Subsidiaries (including the Purchased Subsidiaries) involved in the preparation of the Closing Statement Balance Sheet to reasonably cooperate, during normal business hours and upon reasonable prior notice, cooperate with Seller and its Representatives in connection with their its review of the Closing Statement.
(c) If Seller disagrees Balance Sheet; provided that such access shall be in a manner that does not interfere in any material respect with the calculation normal business operations of Buyer or the Closing Date Company Group. “Net Working Capital, the Closing Date Indebtedness, the Transaction Expenses and/or the Closing Date Cash, it shall notify Buyer of such disagreement in writing, setting forth in reasonable detail the particulars of such disagreement, within forty-five (45) days after its receipt of the Closing Statement. In the event that Seller does not provide such a notice of disagreement within such forty-five (45)-day period, Seller shall be deemed to have accepted the Closing Statement and the calculation of the Closing Date Net Working Capital, the Closing Date Indebtedness and the Closing Date Cash delivered by Buyer, which shall be final, binding and conclusive for all purposes hereunder. In the event any such notice of disagreement is timely provided, Buyer and Seller shall use commercially reasonable efforts for a period of forty-five (45) days (or such longer period ” as they may mutually agree) to resolve any disagreements with respect to the calculations of the Closing Date Net Working Capital, the Closing Date Indebtedness, the Transaction Expenses or the Closing Date Cash (or of any line item contained in any of the foregoing), and all such discussions related thereto shall (unless otherwise agreed by Seller and Buyer) be governed by Rule 408 of the Federal Rules of Evidence and any applicable similar state rule. If, at the end of such period, they are unable to resolve such disagreements, then ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP (or such other independent accounting or financial consulting firm of recognized national standing as may be mutually selected by Buyer and Seller) (the “Auditor”) shall resolve any remaining disagreements. Seller and Buyer shall instruct the Auditor to determine as promptly as practicable, but in any event within forty-five (45) days of the date on which such dispute is referred to the Auditor, whether the Closing Statement was prepared in accordance with the standards set forth in the Accounting Principles and the applicable definitions contained herein and (only with respect to the remaining disagreements submitted to the Auditor) whether and to what extent (if any) the Closing Date Net Working Capital, the Closing Date Indebtedness, the Transaction Expenses or the Closing Date Cash require adjustment; provided, that in resolving any disputed amount in connection with such determination, the Auditor may not assign a value to the Closing Date Net Working Capital, the Closing Date Indebtedness, the Transaction Expenses or the Closing Date Cash greater than the greatest amount for such value, or less than the smallest amount for such value, in either case, claimed by Buyer in the Closing Statement or Seller in its notice of disagreement delivered pursuant to this Section 2.04(c). The Auditor shall consider only those items and amounts in Buyer’s and Seller’s respective calculations (as set forth in the Closing Statement and the notice of disagreement described above, respectively) of the Closing Date Net Working Capital, the Closing Date Indebtedness, the Transaction Expenses, and the Closing Date Cash that are identified as being items and amounts to which Buyer and Seller have been unable to agree and shall only be permitted to determine whether such items are calculated in accordance with the Accounting Principles and the applicable definitions contained herein, and Buyer and Seller shall instruct the Auditor not to make any other determination, including any determination as to whether the Target Net Working Capital or any estimates on the Estimated Closing Statement are correct, adequate or sufficient. The fees and expenses of the Auditor shall be paid one-half by Buyer (or its Subsidiaries) and one-half by Seller (or the Retained Entities). Absent manifest error, the determination of the Auditor shall be final, binding and conclusive on the Parties and shall not be subject to appeal or further review; provided, however, that the Parties shall be entitled to have a judgment entered upon the written determination of the Auditor in accordance with Section 10.07. The date on which the Closing Date Net Working Capital, the Closing Date Indebtedness, the Transaction Expenses and the Closing Date Cash are finally determined in accordance with this Section 2.04(c) is hereinafter referred to as the “Determination Date.”
(d) The “Adjustment Amount,” which may be positive or negative, time shall mean (i) the Closing Date Net Working Capital (consolidated Current Assets of the Company and its Subsidiaries as finally determined in accordance with Section 2.04(c))of such time, minus the Estimated Closing Date Net Working Capital, plus (ii) the Estimated Closing Date Indebtednessconsolidated Current Liabilities of the Company and its Subsidiaries as of such time, minus the Closing Date Indebtedness (in each case, as finally determined calculated in accordance with this Section 2.04(c)), plus (iiib) and in a manner consistent with the Closing Date Cash (as finally determined in accordance with Section 2.04(c)), minus definitions of the Estimated Closing Date Cash, plus (iv) the Estimated Transaction Expenses minus the Transaction Expenses (as finally determined in accordance with Section 2.04(c)). If the Adjustment Amount is a positive number, then the Purchase Price terms Current Assets and Current Liabilities and provided that “Net Working Capital” shall be increased calculated excluding the impact of intercompany accruals, receivables, accounts or other balances owed by the Adjustment Amount (the “Increase Amount”), and if the Adjustment Amount is a negative number, then the Purchase Price shall be decreased by the absolute value of the Adjustment Amount (the “Deficit Amount”). The Adjustment Amount shall be paid in accordance with Section 2.04(e).
(e) If there is an Increase Amount, then, promptly following the Determination Date, and in any event within five (5) Business Days of the Determination Date, Buyer shall pay or to Seller (and/or one or more Retained Entities designated by Seller) an amount in cash equal to members of the Increase Amount in immediately available funds by wire transfer to an account or accounts designated by SellerCompany Group, by written notice to Buyer. If there is a Deficit Amount, then, promptly following on the Determination Dateone hand, and in one or more of Seller or any event within five of its Affiliates (5) Business Days other than a member of the Determination DateCompany Group), Seller shall pay, or shall cause to be paid, to Buyer an amount in cash equal to on the Deficit Amount in immediately available funds by wire transfer to an account or accounts designated by Buyer, by written notice to TransUnion. For U.S. federal income and other applicable Tax purposes, to the extent permitted by applicable Law, any Increase Amount or Deficit Amount pursuant to this Section 2.04 shall be treated as an adjustment to the portion of the Purchase Price attributable to the relevant Purchased Interestshand.
Appears in 1 contract
Sources: Membership Interest Purchase Agreement (Thestreet, Inc.)
Adjustment Amount. (a) Not less than three (3) Business Days prior to the Closing Date and in no event more than ten (10) Business Days prior to As soon as reasonably practicable following the Closing Date, Seller shall deliver to Buyer a written statement, together with reasonably detailed supporting documentation (the “Estimated Closing Statement”), which shall be prepared and in accordance with the Accounting Principles and the applicable definitions contained herein, setting forth (i) its good faith estimate of (A) the Closing Date Net Working Capital (the “Estimated Closing Date Net Working Capital”), (B) the Indebtedness as of immediately prior to the Closing (the “Estimated Closing Date Indebtedness”), (C) the Cash and Cash Equivalents of the Purchased Subsidiaries as of immediately prior to the Closing , not to exceed an amount equal to $2,500,000 (the “Estimated Closing Date Cash”) and (D) the Transaction Expenses (the “Estimated Transaction Expenses”), (ii) its calculation of the Estimated Net Working Capital Adjustment Amount, and (iii) its resulting calculation of the Purchase Price under Section 2.02(a) (the “Estimated Purchase Price”).
(b) Within sixty (60) any event within 90 calendar days following the Closing Datethereof, Buyer shall prepare and deliver to Seller a statement (the “Closing Statement”) which shall be prepared in accordance with the Accounting Principles and the applicable definitions contained hereinSeller, setting forth Buyer’s calculation of (i) a calculation of the Closing Date Net Working Capital, (ii) Closing Transaction Expenses, (iii) Closing Cash Shortfall, (iv) Closing Net Working Capital Adjustment Amount, (v) Closing Cash Excess, and (vi) on the basis of the foregoing, a calculation of the Indebtedness as of immediately prior Purchase Price (together with the calculations referred to the Closing in clauses (the “Closing Date Indebtedness”), (iiii) a calculation of the Cash and Cash Equivalents of the Purchased Subsidiaries as of immediately prior to the Closing, not to exceed an amount equal to $2,500,000 (the “Closing Date Cash”) and through (iv) a calculation of above, the Transaction Expenses“Final Closing Statement”). Nothing The Closing Net Working Capital, Closing Cash Shortfall, and Closing Cash Excess shall be prepared in accordance with GAAP and the defined terms used in this Section 2.06(a); provided, however, that the Final Closing Statement (and any amounts included therein) shall not give effect to any act or omission by Buyer or any of its Subsidiaries or the Company taken after the Reference Time or reflect any payments of cash in respect of the Purchase Price, or any financing transactions in connection therewith or reflect any expense or liability for which Buyer is responsible under this Agreement. For the avoidance of doubt, neither Section 2.04 nor this Section 2.06 is intended to be used to adjust the Purchase Price for errorserrors or omissions, omissions under GAAP or inconsistencies otherwise, that may be found with respect to the Financial StatementsStatements or the Target Net Working Capital. No fact or event, including any market or any actual business development, occurring after the Closing Date, and no change in GAAP or alleged failure of Applicable Law after the Financial Statements Balance Sheet Date, shall be taken into consideration in the calculations to be prepared made pursuant to Section 2.04 or this Section 2.06. If Buyer fails to timely deliver the Final Closing Statement in accordance with GAAP or in good faith. Following the Closingfirst sentence of this Section 2.06(a) within such 90-day period, Buyer shall provide Seller and its Representatives reasonable access, during normal business hours and upon reasonable prior notice, to then the records, properties, personnel and (subject to the execution of customary work paper access letters) auditors of Buyer utilized in the preparation of the Preliminary Closing Statement and shall cause the personnel of delivered by Seller to Buyer and its Subsidiaries (including the Purchased Subsidiaries) involved in the preparation of the Closing Statement pursuant to reasonably cooperate, during normal business hours and upon reasonable prior notice, with Seller and its Representatives in connection with their review of the Closing Statement.
(c) If Seller disagrees with the calculation of the Closing Date Net Working Capital, the Closing Date Indebtedness, the Transaction Expenses and/or the Closing Date Cash, it shall notify Buyer of such disagreement in writing, setting forth in reasonable detail the particulars of such disagreement, within forty-five (45) days after its receipt of the Closing Statement. In the event that Seller does not provide such a notice of disagreement within such forty-five (45)-day period, Seller Section 2.04 shall be deemed to have accepted the be Buyer’s proposed Final Closing Statement and the calculation of the Closing Date Net Working CapitalStatement, the Closing Date Indebtedness and the Closing Date Cash delivered by Buyer, which shall be final, binding and conclusive for all purposes hereunder. In the event any such notice of disagreement is timely provided, Buyer and Seller shall use commercially reasonable efforts for a period retain all of forty-five (45) days (or such longer period as they may mutually agree) to resolve any disagreements its rights under this Section 2.06 with respect thereto, including the right to dispute the calculations of the Closing Date Net Working Capital, the Closing Date Indebtedness, the Transaction Expenses or the Closing Date Cash (or of any line item contained in any of the foregoing), and all such discussions related thereto shall (unless otherwise agreed by Seller and Buyer) be governed by Rule 408 of the Federal Rules of Evidence and any applicable similar state rule. If, at the end of such period, they are unable to resolve such disagreements, then ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP (or such other independent accounting or financial consulting firm of recognized national standing as may be mutually selected by Buyer and Seller) (the “Auditor”) shall resolve any remaining disagreements. Seller and Buyer shall instruct the Auditor to determine as promptly as practicable, but in any event within forty-five (45) days of the date on which such dispute is referred to the Auditor, whether the Closing Statement was prepared set forth therein in accordance with the standards set forth in the Accounting Principles and the applicable definitions contained herein and (only with respect to the remaining disagreements submitted to the Auditor) whether and to what extent (if any) the Closing Date Net Working Capital, the Closing Date Indebtedness, the Transaction Expenses or the Closing Date Cash require adjustment; provided, that in resolving any disputed amount in connection with such determination, the Auditor may not assign a value to the Closing Date Net Working Capital, the Closing Date Indebtedness, the Transaction Expenses or the Closing Date Cash greater than the greatest amount for such value, or less than the smallest amount for such value, in either case, claimed by Buyer in the Closing Statement or Seller in its notice provisions of disagreement delivered pursuant to this Section 2.04(c). The Auditor shall consider only those items and amounts in Buyer’s and Seller’s respective calculations (as set forth in the Closing Statement and the notice of disagreement described above, respectively) of the Closing Date Net Working Capital, the Closing Date Indebtedness, the Transaction Expenses, and the Closing Date Cash that are identified as being items and amounts to which Buyer and Seller have been unable to agree and shall only be permitted to determine whether such items are calculated in accordance with the Accounting Principles and the applicable definitions contained herein, and Buyer and Seller shall instruct the Auditor not to make any other determination, including any determination as to whether the Target Net Working Capital or any estimates on the Estimated Closing Statement are correct, adequate or sufficient. The fees and expenses of the Auditor shall be paid one-half by Buyer (or its Subsidiaries) and one-half by Seller (or the Retained Entities). Absent manifest error, the determination of the Auditor shall be final, binding and conclusive on the Parties and shall not be subject to appeal or further review; provided, however, that the Parties shall be entitled to have a judgment entered upon the written determination of the Auditor in accordance with Section 10.07. The date on which the Closing Date Net Working Capital, the Closing Date Indebtedness, the Transaction Expenses and the Closing Date Cash are finally determined in accordance with this Section 2.04(c) is hereinafter referred to as the “Determination Date2.06.”
(d) The “Adjustment Amount,” which may be positive or negative, shall mean (i) the Closing Date Net Working Capital (as finally determined in accordance with Section 2.04(c)), minus the Estimated Closing Date Net Working Capital, plus (ii) the Estimated Closing Date Indebtedness, minus the Closing Date Indebtedness (as finally determined in accordance with Section 2.04(c)), plus (iii) the Closing Date Cash (as finally determined in accordance with Section 2.04(c)), minus the Estimated Closing Date Cash, plus (iv) the Estimated Transaction Expenses minus the Transaction Expenses (as finally determined in accordance with Section 2.04(c)). If the Adjustment Amount is a positive number, then the Purchase Price shall be increased by the Adjustment Amount (the “Increase Amount”), and if the Adjustment Amount is a negative number, then the Purchase Price shall be decreased by the absolute value of the Adjustment Amount (the “Deficit Amount”). The Adjustment Amount shall be paid in accordance with Section 2.04(e).
(e) If there is an Increase Amount, then, promptly following the Determination Date, and in any event within five (5) Business Days of the Determination Date, Buyer shall pay to Seller (and/or one or more Retained Entities designated by Seller) an amount in cash equal to the Increase Amount in immediately available funds by wire transfer to an account or accounts designated by Seller, by written notice to Buyer. If there is a Deficit Amount, then, promptly following the Determination Date, and in any event within five (5) Business Days of the Determination Date, Seller shall pay, or shall cause to be paid, to Buyer an amount in cash equal to the Deficit Amount in immediately available funds by wire transfer to an account or accounts designated by Buyer, by written notice to TransUnion. For U.S. federal income and other applicable Tax purposes, to the extent permitted by applicable Law, any Increase Amount or Deficit Amount pursuant to this Section 2.04 shall be treated as an adjustment to the portion of the Purchase Price attributable to the relevant Purchased Interests.
Appears in 1 contract
Sources: Stock Purchase Agreement (FTAI Infrastructure Inc.)