Aggregate Consideration. (a) Subject to the terms and conditions of this Agreement, in reliance upon the representations, warranties, covenants and agreements of Seller, the Seller Related Parties and Company set forth herein, and as consideration for the purchase and sale of the Shares, on and as of the Closing Date, the Purchaser agrees to pay and transfer to the Seller the following consideration (collectively, the “Aggregate Consideration”): (A) Twenty Eight Million Dollars ($28,000,000), as adjusted pursuant to Section 2.03(e) and reduced by the amounts described in Sections 2.03(a)(i) and 2.03(a)(ii) below (the “Cash Consideration” ), payable in the manner set forth below; (B) subject to Section 2.03(b), that number of shares of Purchaser Common Stock determined by dividing Two Million Dollars ($2,000,000) by the average market price at which shares of Purchaser’s registered common stock traded on the NASDAQ Global Market over the last ten (10) trading days immediately prior to the Closing Date (the “Closing Price”); (C) the amount, if any, determined pursuant to Section 2.03(d) below within the time frame set forth therein; and (D) the amounts, if any, determined pursuant to Section 6.05(f) and Section 6.05(k) below within the time frames set forth therein. On and as of the Closing Date, Purchaser will pay the Cash Consideration by wire transfer of immediately available funds to the recipients as designated in a flow of funds memorandum (with wire instructions for the below payments or instructions to pay certain amounts by check) prepared by the Seller and Company and reasonably acceptable to Purchaser (the “Flow of Funds Memorandum”) and containing the following: (i) The amount of any Indebtedness (if any) that will be paid at Closing; (ii) The amount of expenses payable by the Seller and the Company in connection with the consummation of the transactions contemplated hereby (e.g., payment to legal counsel, accountants and financial advisors) to the extent remaining unpaid as of the Closing; and (iii) The Cash Consideration (less the amounts set forth in clauses (i) and (ii) above) to Seller. (b) On the Closing Date, all of the shares of Purchaser Common Stock to be issued pursuant to Section 2.03(a)(B) above (the “Holdback Shares”) shall be held by Purchaser subject to a holdback agreement between the Seller Representative, Seller and Purchaser in the form attached hereto as Exhibit A (the “Holdback Agreement”) until the end of the fifteen (15) month period following the Closing Date (or as otherwise set forth in the Holdback Agreement, the “Holdback Period”), as partial security for the indemnification obligations of the Seller and Seller Related Parties set forth in this Agreement. In calculating the value of the Holdback Shares for purposes of satisfying any indemnity claim of Purchaser under this Agreement, each Holdback Share shall be valued at the Closing Price, and indemnity claims which are paid under the Holdback Agreement shall be satisfied by cancelling the number of Holdback Shares that are equal to the claim amount based on the Closing Price of such shares. Upon termination of the Holdback Period, the remaining Holdback Shares, if any, shall be distributed to the Seller (the date of distribution, the “Distribution Date”). (c) Within sixty (60) days after the Closing Date, the Purchaser shall prepare and deliver to the Seller Representative the calculation of Net Working Capital as of 11:59 p.m. of the Closing Date (the “Closing Date Net Working Capital”) , which calculation shall contain reasonable details and statements as to the assumptions, means and other inputs by which such calculation was determined. The calculation of the Closing Date Net Working Capital will be prepared by applying the definition of Net Working Capital herein. The Purchaser’s calculation of the Closing Date Net Working Capital shall be final and binding on the Parties unless, within thirty (30) days after delivery thereof to the Seller Representative, the Seller Representative delivers to the Purchaser a notice of dispute (a “Dispute Notice”) specifying in reasonable detail the items in dispute. During such 30-day review period, the Purchaser will provide the Seller Representative and its Representatives with reasonable access during normal business hours to the books and records of the Company and all work papers and back up materials relating to the determination of Closing Date Net Working Capital. Such items in dispute shall be limited to claims of the Purchaser’s error or use of accounting principles, policies, practices, classifications or methodologies other than the Company used in preparation of the Balance Sheet. After delivery of a Dispute Notice, the Seller Representative and the Purchaser shall promptly negotiate in good faith with respect to the subject of the Dispute Notice, and if they are unable to reach an agreement within fifteen (15) days after delivery by the Seller Representative of the Dispute Notice, the dispute shall be submitted (no later than five (5) Business Days at the end of such 15-day resolution period) to ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP, or such other independent public accounting firm as mutually agreed to by the Purchaser and the Seller Representative (the “Independent Accounting Firm”). Each Party agrees to execute, if requested by the Independent Accounting Firm, a reasonable engagement letter with respect to the work to be performed by the Independent Accounting Firm. The Independent Accounting Firm shall be directed by the Purchaser and the Seller Representative to issue a final and binding decision within thirty (30) days of submission of the Dispute Notice to the Independent Accounting Firm, as to the issues of disagreement referred to in the Dispute Notice and not resolved by the Purchaser and the Seller Representative. The Independent Accounting Firm shall determine only those items still in dispute by the parties and the Independent Accounting Firm’s determination will be based upon and consistent with the terms and conditions of this Agreement. The determination by the Independent Accounting Firm will be based solely on presentations with respect to such disputed items by the Purchaser and the Seller Representative to the Independent Accounting Firm and not on the Independent Accounting Firm’s independent review. the Purchaser and the Seller Representative will use their reasonable best efforts to make their respective presentations as promptly as practicable following submission to the Independent Accounting Firm of the disputed items, and each party shall be entitled, a part of its presentation, to respond to the presentation of the other party and any questions and requests of the Independent Accounting Firm. In deciding any matter, the Independent Accounting Firm (i) will be bound by the provisions of this Section 2.03(c) and (ii) may not assign a value to any item greater than the greatest value for such item claimed by either the Purchaser or the Seller Representative or less than the smallest value for such item claimed by the Purchaser or the Seller Representative. Each of the Parties agrees that it shall be bound by the determination of the Independent Accounting Firm and such determination may only be reviewed, corrected or set aside by a court of competent jurisdiction only upon a finding by such court that the Independent Accounting Firm committed fraud or manifest error with respect to its determination. The determination of the Independent Accounting Firm will not be deemed an award subject to review under the Federal Arbitration Act or any other statute. The fees and expenses of the Independent Accounting Firm shall be borne by the non-prevailing party to the decision of the Independent Accounting Firm if one party prevails on all disputed items; if neither the Purchaser or the Seller Representative were correct with respect to all of the disputed items, then the Purchaser, on the one hand, and the Seller Representative, on the other hand, will each pay half of the Independent Auditor’s fees. Except as provided in the preceding sentences, all other costs and expenses incurred by the Parties in connection with resolving any dispute hereunder before the Independent Accounting Firm will be borne by the party incurring such cost and expense. (d) If the Closing Date Net Working Capital, as determined in accordance with Section 2.03(c) above, is less than One Million Five Hundred Thousand Dollars ($1,500,000) (the “Target Net Working Capital”), the Aggregate Consideration shall be reduced on a dollar-for-dollar basis by the amount by which the Target Net Working Capital exceeds the Closing Date Net Working Capital, and Seller shall pay the Purchaser the dollar amount by which the Target Net Working Capital exceeds the Closing Date Net Working Capital first by offset of the NWC Holdback, if any, and the remainder, if any, in cash within five (5) Business Days after the final determination of the Closing Date Net Working Capital pursuant to Section 2.03(c). Seller shall be liable for the amount of any deficit in the Target Net Working Capital pursuant to this Section 2.03(d), and such liability shall be in addition to, and independent of, any and all limitations, thresholds and exclusivity provisions set forth in Article VII of this Agreement. Notwithstanding the foregoing, if the Closing Date Net Working Capital is greater than the Target Net Working Capital, then the Cash Consideration shall be increased on a dollar-for-dollar basis by the amount by which the Closing Date Net Working Capital exceeds the Target Net Working Capital, and the Purchaser shall pay the Seller the dollar amount by which the Closing Date Net Working Capital exceeds the Target Net Working Capital in cash within five (5) Business Days after the final determination of the Closing Date Net Working Capital pursuant to Section 2.03(c). Any amount of the NWC Holdback not offset by Purchaser pursuant to this Section 2.03(c) shall be paid by the Purchaser to the Seller within five (5) Business Days after the final determination of Closing Date Net Working Capital pursuant to Section 2.03(c). (e) No later than one day prior to the Closing Date, Seller Representative shall deliver to Purchaser a good faith estimate of the Closing Date Net Working Capital and attach the estimate to this Agreement as Schedule 2.03(e) (“Estimated Closing Date Net Working Capital”). If the Estimated Closing Date Net Working Capital is less than the Target Net Working Capital, Purchaser shall hold the difference between the Estimated Closing Date Net Working Capital and the Target Net Working Capital back from the portion of the Cash Consideration paid pursuant to Section 2.03(a)(iii) (the “NWC Holdback”) until five (5) Business Days after the final determination of Closing Date Net Working Capital pursuant to Section 2.03(c), at which time it will be paid to the Purchaser or the Seller as required by Section 2.03(d).
Appears in 1 contract
Aggregate Consideration. (a) Subject to the terms and conditions of this Agreement, in reliance upon the representations, warranties, covenants and agreements of Seller, the Seller Related Parties Sellers and Company set forth herein, and as consideration for the purchase and sale of the Shares, on and as of the Closing Date, the Purchaser agrees to pay and transfer, and/or cause its Parent to pay and transfer on its behalf hereunder, to the Seller Sellers in the proportions set forth on Schedule 2.03(e), the following consideration (collectively, the “Aggregate Consideration”): ):
(i) (A) Twenty Eight Million Dollars ($28,000,000), as adjusted pursuant to Section 2.03(e) and reduced by the amounts described in Sections 2.03(a)(i) and 2.03(a)(ii) below A cash payment (the “Closing Cash Consideration” Payment”), payable in the manner set forth in Section 2.03(f) below; , equal to One Hundred Million Dollars (B) subject to Section 2.03(b$100,000,000), that number of shares of Purchaser Common Stock determined minus the amount, if any, by dividing which Estimated Closing Date Net Working Capital is less than Two Million Dollars ($2,000,000) (the “Target Net Working Capital”), OR plus fifty percent (50%) of the amount, if any, by which the Estimated Closing Date Net Working Capital exceeds the Target Net Working Capital, with the remaining fifty percent (50%) of such amount (the “Excess Estimated Working Capital Holdback”) held by the Purchaser until determination of the Final Closing Date Net Working Capital pursuant to Section 2.03(c), at which time it shall be paid or retained as provided in Section 2.03(d); and (B) Sixteen Million Dollars ($16,000,000) to the Indemnity Escrow Account as set forth in Section 2.03(g) below;
(ii) That number of shares of Parent Common Stock determined by dividing Ten Million Dollars ($10,000,000) by the average closing market price at which shares of PurchaserParent’s registered common stock traded as reported on the NASDAQ Global Market over the last ten (10) trading days immediately ending three (3) calendar days prior to the Closing Date (the “Closing Price”), to be issued to the Sellers by Parent as indicated on Schedule 2.03(a)(ii); and
(Ciii) the The amount, if any, determined pursuant to Section Sections 2.03(d) and (e) below within the time frame set forth therein; and (D) the amounts, if any, determined pursuant to Section 6.05(f) and Section 6.05(k) below within the time frames set forth therein. On and as of the Closing Date, Purchaser will pay the Cash Consideration by wire transfer of immediately available funds to the recipients as designated in a flow of funds memorandum (with wire instructions for the below payments or instructions to pay certain amounts by check) prepared by the Seller and Company and reasonably acceptable to Purchaser (the “Flow of Funds Memorandum”) and containing the following:
(i) The amount of any Indebtedness (if any) that will be paid at Closing;
(ii) The amount of expenses payable by the Seller and the Company in connection with the consummation of the transactions contemplated hereby (e.g., payment to legal counsel, accountants and financial advisors) to the extent remaining unpaid as of the Closing; and
(iii) The Cash Consideration (less the amounts set forth in clauses (i) and (ii) above) to Seller.
(b) On the Closing Date, all of the shares of Purchaser Common Stock to be issued pursuant to Section 2.03(a)(B) above (the “Holdback Shares”) shall be held by Purchaser subject to a holdback agreement between the Seller Representative, Seller and Purchaser in the form attached hereto as Exhibit A (the “Holdback Agreement”) until the end of the fifteen (15) month period following the Closing Date (or as otherwise set forth in the Holdback Agreement, the “Holdback Period”), as partial security for the indemnification obligations of the Seller and Seller Related Parties set forth in this Agreement. In calculating the value of the Holdback Shares for purposes of satisfying any indemnity claim of Purchaser under this Agreement, each Holdback Share shall be valued at the Closing Price, and indemnity claims which are paid under the Holdback Agreement shall be satisfied by cancelling the number of Holdback Shares that are equal to the claim amount based on the Closing Price of such shares. Upon termination of the Holdback Period, the remaining Holdback Shares, if any, shall be distributed to the Seller (the date of distribution, the “Distribution Date”).
(c) Within sixty (60) days after the Closing Date, the Purchaser shall prepare and deliver to the Seller Representative the calculation of Net Working Capital as of 11:59 p.m. of the Closing Date (the “Closing Date Net Working Capital”) , which calculation shall contain reasonable details and statements as to the assumptions, means and other inputs by which such calculation was determined. The calculation of the Closing Date Net Working Capital will be prepared by applying the definition of Net Working Capital herein. The Purchaser’s calculation of the Closing Date Net Working Capital shall be final and binding on the Parties unless, within thirty (30) days after delivery thereof to the Seller Representative, the Seller Representative delivers to the Purchaser a notice of dispute (a “Dispute Notice”) specifying in reasonable detail the items in dispute. During such 30-day review period, the Purchaser will provide the Seller Representative and its Representatives with reasonable access during normal business hours to the books and records of the Company and all work papers and back up materials relating to the determination of Closing Date Net Working Capital. Such items in dispute shall be limited to claims of the Purchaser’s error or use of accounting principles, policies, practices, classifications or methodologies other than the Company used in preparation of the Balance Sheet. After delivery of a Dispute Notice, the Seller Representative and the Purchaser shall promptly negotiate in good faith with respect to the subject of the Dispute Notice, and if they are unable to reach an agreement within fifteen (15) days after delivery by the Seller Representative of the Dispute Notice, the dispute shall be submitted (no later than five (5) Business Days at the end of such 15-day resolution period) to ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP, or such other independent public accounting firm as mutually agreed to by the Purchaser and the Seller Representative (the “Independent Accounting Firm”). Each Party agrees to execute, if requested by the Independent Accounting Firm, a reasonable engagement letter with respect to the work to be performed by the Independent Accounting Firm. The Independent Accounting Firm shall be directed by the Purchaser and the Seller Representative to issue a final and binding decision within thirty (30) days of submission of the Dispute Notice to the Independent Accounting Firm, as to the issues of disagreement referred to in the Dispute Notice and not resolved by the Purchaser and the Seller Representative. The Independent Accounting Firm shall determine only those items still in dispute by the parties and the Independent Accounting Firm’s determination will be based upon and consistent with the terms and conditions of this Agreement. The determination by the Independent Accounting Firm will be based solely on presentations with respect to such disputed items by the Purchaser and the Seller Representative to the Independent Accounting Firm and not on the Independent Accounting Firm’s independent review. the Purchaser and the Seller Representative will use their reasonable best efforts to make their respective presentations as promptly as practicable following submission to the Independent Accounting Firm of the disputed items, and each party shall be entitled, a part of its presentation, to respond to the presentation of the other party and any questions and requests of the Independent Accounting Firm. In deciding any matter, the Independent Accounting Firm (i) will be bound by the provisions of this Section 2.03(c) and (ii) may not assign a value to any item greater than the greatest value for such item claimed by either the Purchaser or the Seller Representative or less than the smallest value for such item claimed by the Purchaser or the Seller Representative. Each of the Parties agrees that it shall be bound by the determination of the Independent Accounting Firm and such determination may only be reviewed, corrected or set aside by a court of competent jurisdiction only upon a finding by such court that the Independent Accounting Firm committed fraud or manifest error with respect to its determination. The determination of the Independent Accounting Firm will not be deemed an award subject to review under the Federal Arbitration Act or any other statute. The fees and expenses of the Independent Accounting Firm shall be borne by the non-prevailing party to the decision of the Independent Accounting Firm if one party prevails on all disputed items; if neither the Purchaser or the Seller Representative were correct with respect to all of the disputed items, then the Purchaser, on the one hand, and the Seller Representative, on the other hand, will each pay half of the Independent Auditor’s fees. Except as provided in the preceding sentences, all other costs and expenses incurred by the Parties in connection with resolving any dispute hereunder before the Independent Accounting Firm will be borne by the party incurring such cost and expense.
(d) If the Closing Date Net Working Capital, as determined in accordance with Section 2.03(c) above, is less than One Million Five Hundred Thousand Dollars ($1,500,000) (the “Target Net Working Capital”), the Aggregate Consideration shall be reduced on a dollar-for-dollar basis by the amount by which the Target Net Working Capital exceeds the Closing Date Net Working Capital, and Seller shall pay the Purchaser the dollar amount by which the Target Net Working Capital exceeds the Closing Date Net Working Capital first by offset of the NWC Holdback, if any, and the remainder, if any, in cash within five (5) Business Days after the final determination of the Closing Date Net Working Capital pursuant to Section 2.03(c). Seller shall be liable for the amount of any deficit in the Target Net Working Capital pursuant to this Section 2.03(d), and such liability shall be in addition to, and independent of, any and all limitations, thresholds and exclusivity provisions set forth in Article VII of this Agreement. Notwithstanding the foregoing, if the Closing Date Net Working Capital is greater than the Target Net Working Capital, then the Cash Consideration shall be increased on a dollar-for-dollar basis by the amount by which the Closing Date Net Working Capital exceeds the Target Net Working Capital, and the Purchaser shall pay the Seller the dollar amount by which the Closing Date Net Working Capital exceeds the Target Net Working Capital in cash within five (5) Business Days after the final determination of the Closing Date Net Working Capital pursuant to Section 2.03(c). Any amount of the NWC Holdback not offset by Purchaser pursuant to this Section 2.03(c) shall be paid by the Purchaser to the Seller within five (5) Business Days after the final determination of Closing Date Net Working Capital pursuant to Section 2.03(c).
(e) No later than one day prior to the Closing Date, Seller Representative the Company shall deliver to Purchaser a good faith estimate of the Closing Date Net Working Capital and attach the estimate to this Agreement as Schedule 2.03(e2.03(b) (“Estimated Closing Date Net Working Capital”). If The calculation of Estimated Closing Date Net Working Capital shall be in the form and use the methodology set forth in Exhibit B hereto (“Sample Working Capital Calculation”). The Closing Cash Payment shall be adjusted based on the Estimated Closing Date Net Working Capital is less than the Target Net Working Capital, Purchaser shall hold the difference between the Estimated Closing Date Net Working Capital and the Target Net Working Capital back from the portion of the Cash Consideration paid pursuant to as set forth in Section 2.03(a)(iii2.03(a)(i)(A) (the “NWC Holdback”) until five (5) Business Days after the final determination of Closing Date Net Working Capital pursuant to Section 2.03(c), at which time it will be paid to the Purchaser or the Seller as required by Section 2.03(d)above.
Appears in 1 contract
Aggregate Consideration. (a) Subject to the terms and conditions of this Agreement, in reliance upon the representations, warranties, covenants and agreements of Sellerthe Sellers, the Seller Related Parties Company and Company Subsidiary set forth herein, and as consideration for the purchase and sale of the Shares, on and as of the Closing Date, the Purchaser agrees to pay and transfer to the Seller Sellers the following consideration (collectively, the “Aggregate Consideration”): ):
(Ai) Twenty Eight Million Dollars ($28,000,000), as adjusted pursuant to Section 2.03(e) and reduced by the amounts described in Sections 2.03(a)(i) and 2.03(a)(ii) below (the “Cash Consideration” ), payable in the manner set forth below; (B) subject Subject to Section 2.03(b), that number Twenty-Seven Million Dollars ($27,000,000) in cash by wire transfer of immediately available funds to the accounts designated by the Sellers, except for the portion of said payment to be paid by check to those Sellers identified on Schedule 2.03, which shall be paid by Purchaser’s check dated the Closing Date;
(ii) Eighty-Seven Thousand Five Hundred (87,500) shares of Purchaser Common Stock determined by dividing Two Million Dollars ($2,000,000) by the average market price at which shares of Purchaser’s registered common stock traded on the NASDAQ Global Market over the last ten (10) trading days immediately prior to the Closing Date Sellers indicated on Schedule 2.03; and
(the “Closing Price”); (Ciii) the amount, if any, determined pursuant to Section 2.03(d) below within the time frame set forth therein; and (D) the amounts, if any, determined pursuant to Section 6.05(f) and Section 6.05(k) below within the time frames set forth therein. On and as of the Closing Date, Purchaser will pay the Cash Consideration by wire transfer of immediately available funds to the recipients as designated in a flow of funds memorandum (with wire instructions for the below payments or instructions to pay certain amounts by check) prepared by the Seller and Company and reasonably acceptable to Purchaser (the “Flow of Funds Memorandum”) and containing the following:
(i) The amount of any Indebtedness (if any) that will be paid at Closing;
(ii) The amount of expenses payable by the Seller and the Company in connection with the consummation of the transactions contemplated hereby (e.g., payment to legal counsel, accountants and financial advisors) to the extent remaining unpaid as of the Closing; and
(iii) The Cash Consideration (less the amounts set forth in clauses (i) and (ii) above) to Seller.
(b) On the Closing Date, all of One Million Five Hundred Thousand Dollars ($1,500,000) (the shares of Purchaser Common Stock “Escrow Amount”), that would otherwise be delivered to be issued the Sellers pursuant to Section 2.03(a)(B) above 2.03(a), shall be transferred to a separate escrow account (the “Holdback SharesEscrow Account”) ). The Escrow Amount shall be held by Purchaser subject to a holdback agreement between the Seller Representative, Seller and Purchaser in the form attached hereto as Exhibit A (the “Holdback Agreement”) escrow until the end of the fifteen (15) month period following the Closing Date (or as otherwise set forth in the Holdback Escrow Agreement, the “Holdback Period”), as partial security for the indemnification obligations of the Seller and Seller Related Parties Sellers set forth in this Agreement. In calculating The Escrow Amount and the value release thereof to the Purchaser and Sellers shall be governed by the terms and conditions of an Escrow Agreement among the Sellers’ Representative on behalf of the Holdback Shares for purposes of satisfying any indemnity claim of Sellers, the Purchaser under this and Manufacturers and Traders Trust Company (the “Escrow Agent”) in the form attached hereto as Exhibit A (the “Escrow Agreement, each Holdback Share shall be valued at ”). On the Closing PriceDate, and indemnity claims which are paid under Seventy Five Thousand Dollars ($75,000) (the “Holdback Agreement shall Amount”) that would otherwise be satisfied by cancelling the number of Holdback Shares that are equal delivered to the claim amount based on the Closing Price of such shares. Upon termination of the Holdback Period, the remaining Holdback Shares, if anySellers pursuant to Section 2.03(a), shall be distributed transferred to a separate account maintained by the Sellers’ Representative for use solely to pay professional fees and expenses and other costs incurred subsequent to the Seller (Closing Date to perform the date obligations of distribution, Sellers and the “Distribution Date”)Sellers’ Representative.
(c) Within sixty (60) days after the Closing Date, the Purchaser shall prepare have prepared and deliver delivered to the Seller Sellers’ Representative the calculation of Net Working Capital as of 11:59 p.m. of the Closing Date (the “Closing Date Net Working Capital”) , which calculation shall contain reasonable details and statements as to the assumptions, means and other inputs by which such calculation was determined). The calculation of the Closing Date Net Working Capital will shall be prepared by applying in the definition of Net Working Capital hereinform and use the methodology set forth on Exhibit B hereto. The Purchaser’s calculation of the Closing Date Net Working Capital shall be final and binding on the Parties parties unless, within thirty (30) days after delivery thereof to the Seller Sellers’ Representative, the Seller Sellers’ Representative delivers to the Purchaser a notice of dispute (a “Dispute Notice”) specifying in reasonable detail the items in dispute. During such 30-day review period, the Purchaser will provide the Seller Representative and its Representatives with reasonable access during normal business hours to the books and records of the Company and all work papers and back up materials relating to the determination of Closing Date Net Working Capital. Such items in dispute shall be limited to claims of the Purchaser’s arithmetic error or use of accounting principles, policies, practices, classifications or methodologies other than the Company used those set forth in preparation of the Balance Sheet. Exhibit B. After delivery of a Dispute Notice, the Seller Sellers’ Representative and the Purchaser shall promptly negotiate in good faith with respect to the subject of the Dispute Notice, and if they are unable to reach an agreement within fifteen (15) days after delivery by the Seller Sellers’ Representative of the Dispute Notice, the dispute shall be submitted (no later than five (5) Business Days at the end of such 15-day resolution period) to ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP, or such other independent public accounting firm as mutually agreed to by the Purchaser and the Seller Sellers’ Representative (the “Independent Accounting Firm”). Each Party agrees to execute, if requested by the Independent Accounting Firm, a reasonable engagement letter with respect to the work to be performed by the Independent Accounting Firm. The Independent Accounting Firm shall be directed by the Purchaser and the Seller Representative to issue a final and binding decision within thirty (30) days of submission of the Dispute Notice to the Independent Accounting Firm, as to the issues of disagreement referred to in the Dispute Notice and not resolved by the Purchaser and the Seller Sellers’ Representative. The Independent Accounting Firm shall determine only those items still , provided that, (i) in dispute by the parties and the Independent Accounting Firm’s determination will be based upon and consistent with the terms and conditions of this Agreement. The determination by the Independent Accounting Firm will be based solely on presentations with respect to such resolving any disputed items by the Purchaser and the Seller Representative to the Independent Accounting Firm and not on the Independent Accounting Firm’s independent review. the Purchaser and the Seller Representative will use their reasonable best efforts to make their respective presentations as promptly as practicable following submission to the Independent Accounting Firm of the disputed items, and each party shall be entitled, a part of its presentation, to respond to the presentation of the other party and any questions and requests of the Independent Accounting Firm. In deciding any matteritem, the Independent Accounting Firm (i) will be bound by the provisions of this Section 2.03(c) and (ii) may not assign a value to any item greater than the greatest value for such item claimed by either the Purchaser or the Seller Representative party or less than the smallest value for such item claimed by either party; and (ii) in no event shall Closing Date Working Capital as determined by the Purchaser or the Seller Representative. Each Independent Accounting Firm be less than Purchaser’s calculation of the Parties agrees that it shall be bound by Closing Date Working Capital nor more than the determination Sellers’ Representative’s calculation of Closing Date Working Capital set forth in the Dispute Notice. The decision of the Independent Accounting Firm shall be final, conclusive and such determination may only be reviewed, corrected or set aside by a court of competent jurisdiction only upon a finding by such court that binding on the Independent Accounting Firm committed fraud or manifest error with respect to its determination. The determination of the Independent Accounting Firm will not be deemed an award subject to review under the Federal Arbitration Act or any other statuteparties. The fees and expenses of the Independent Accounting Firm shall be borne one-half by the nonSellers and one-prevailing party to the decision of the Independent Accounting Firm if one party prevails on all disputed items; if neither the Purchaser or the Seller Representative were correct with respect to all of the disputed items, then half by the Purchaser, on the one hand, and the Seller Representative, on the other hand, will each pay half of the Independent Auditor’s fees. Except as provided in the preceding sentences, all other costs and expenses incurred by the Parties in connection with resolving any dispute hereunder before the Independent Accounting Firm will be borne by the party incurring such cost and expense.
(d) If the Closing Date Net Working Capital, as determined in accordance with Section 2.03(c) above, is less than One Two Million Five Hundred Thousand Dollars ($1,500,0002,000,000) (the “Target Company Net Working Capital”), the Aggregate Consideration shall be reduced on a dollar-for-dollar basis by the amount by which the Target Company Net Working Capital exceeds the Closing Date Net Working Capital, and Seller the Sellers’ Representative, on behalf of the Sellers, shall cause the Escrow Agent to pay to the Purchaser the dollar amount by which the Target Company Net Working Capital exceeds the Closing Date Net Working Capital first (or, to the extent there are insufficient funds remaining in the Escrow Account at the time such payment is to be made, such payment shall be made directly from the Sellers to the Purchaser). If the Closing Date Net Working Capital is greater than the Company Net Working Capital, then the Aggregate Consideration shall be increased on a dollar-for-dollar basis by offset of the NWC Holdback, if anyamount the Closing Date Net Working Capital exceeds the Company Net Working Capital, and the remainder, if any, Purchaser shall pay the Sellers the dollar amount by which the Closing Date Net Working Capital exceeds the Company Net Working Capital. Any such payment due under this Section 2.03(d) shall be made in cash or same day funds within five (5) Business Days after the final determination of the Closing Date Net Working Capital pursuant to Section 2.03(c). Seller shall be liable for the amount of any deficit in the Target Net Working Capital pursuant to this Section 2.03(d), and such liability shall be in addition to, and independent of, any and all limitations, thresholds and exclusivity provisions set forth in Article VII of this Agreement. Notwithstanding the foregoing, if the Closing Date Net Working Capital is greater than the Target Net Working Capital, then the Cash Consideration shall be increased on a dollar-for-dollar basis by the amount by which the Closing Date Net Working Capital exceeds the Target Net Working Capital, and the Purchaser shall pay the Seller the dollar amount by which the Closing Date Net Working Capital exceeds the Target Net Working Capital in cash within five (5) Business Days after the final determination of the Closing Date Net Working Capital pursuant to Section 2.03(c). Any amount of the NWC Holdback not offset by Purchaser pursuant to this Section 2.03(c) shall be paid by the Purchaser to the Seller within five (5) Business Days after the final determination of Closing Date Net Working Capital pursuant to Section 2.03(c).
(e) No later than one day prior to the Closing Date, Each Seller Representative shall deliver to Purchaser a good faith estimate of the Closing Date Net Working Capital and attach the estimate to this Agreement as Schedule 2.03(e) (“Estimated Closing Date Net Working Capital”). If the Estimated Closing Date Net Working Capital is less than the Target Net Working Capital, Purchaser shall hold the difference between the Estimated Closing Date Net Working Capital and the Target Net Working Capital back from receive the portion of the Cash Aggregate Consideration, and make any payments as may be required (or bear a reduction in the Escrow Amount) in accordance with this Section 2.03, as set forth next to such Seller’s name on Schedule 2.03, which sets forth that portion of the cash and/or Purchaser Common Stock each Seller shall receive hereunder, and identifies those Sellers who shall receive payment of their portion of the Closing Payment by check and the respective percentage of the Aggregate Consideration paid pursuant payable to Section 2.03(a)(iii) each Seller hereunder under the column titled “Applicable Percentages” set forth opposite each Seller’s name (collectively the “NWC HoldbackApplicable Percentages” and individually “Applicable Percentage”) until five (5) Business Days after the final determination of Closing Date Net Working Capital pursuant to Section 2.03(c), at which time it will be paid to the Purchaser or the Seller as required by Section 2.03(d).
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Aggregate Consideration. (a) Subject to the terms and conditions of this Agreement, in reliance upon the representations, warranties, covenants and agreements of Seller, the Seller Related Parties and Company set forth herein, and as The aggregate consideration for the purchase and sale of all the Shares, on and as of the Closing Date, the Purchaser agrees to pay and transfer to the Seller the following consideration (collectively, the “Aggregate Consideration”): (A) Twenty Eight Million Dollars ($28,000,000), as adjusted pursuant to Section 2.03(e) and reduced by the amounts described in Sections 2.03(a)(i) and 2.03(a)(ii) below Sale Shares is S$11,500,000 (the “Cash Consideration” ), payable in the manner set forth below; (B) subject to Section 2.03(b), that number of shares of Purchaser Common Stock determined by dividing Two Million Dollars ($2,000,000) by the average market price at which shares of Purchaser’s registered common stock traded on the NASDAQ Global Market over the last ten (10) trading days immediately prior to the Closing Date (the “Closing Price”); (C) the amount, if any, determined pursuant to Section 2.03(d) below within the time frame set forth therein; and (D) the amounts, if any, determined pursuant to Section 6.05(f) and Section 6.05(k) below within the time frames set forth therein. On and as of the Closing Date, Purchaser will pay the Cash Consideration by wire transfer of immediately available funds to the recipients as designated in a flow of funds memorandum (with wire instructions for the below payments or instructions to pay certain amounts by check) prepared by the Seller and Company and reasonably acceptable to Purchaser (the “Flow of Funds Memorandum”) which shall comprise, and containing be paid in accordance with the following:
(ia) The amount of any Indebtedness (if any) that will be paid at Closing;
(ii) The amount of expenses payable by immediately upon the Seller and the Company in connection with the consummation execution of the transactions contemplated hereby (e.g., payment to legal counsel, accountants and financial advisors) to the extent remaining unpaid as of the Closing; and
(iii) The Cash Consideration (less the amounts set forth in clauses (i) and (ii) above) to Seller.
(b) On the Closing Date, all of the shares of Purchaser Common Stock to be issued pursuant to Section 2.03(a)(B) above (the “Holdback Shares”) shall be held by Purchaser subject to a holdback agreement between the Seller Representative, Seller and Purchaser in the form attached hereto as Exhibit A (the “Holdback Agreement”) until the end of the fifteen (15) month period following the Closing Date (or as otherwise set forth in the Holdback Agreement, the “Holdback Period”), as partial security for the indemnification obligations of the Seller and Seller Related Parties set forth in this Agreement. In calculating the value of the Holdback Shares for purposes of satisfying any indemnity claim of Purchaser under this Agreement, each Holdback Share shall be valued at the Closing Price, and indemnity claims which are paid under the Holdback Agreement shall be satisfied by cancelling the number of Holdback Shares that are equal to the claim amount based on the Closing Price of such shares. Upon termination of the Holdback Period, the remaining Holdback Shares, if any, shall be distributed to the Seller (the date of distribution, the “Distribution Date”).
(c) Within sixty (60) days after the Closing DateSPA, the Purchaser shall prepare and deliver pay to LCCE the Seller Representative the calculation sum of Net Working Capital as of 11:59 p.m. of the Closing Date S$500,000 (the “Closing Date Net Working Capital”) , which calculation shall contain reasonable details and statements as to the assumptions, means and other inputs by which such calculation was determined. The calculation of the Closing Date Net Working Capital will be prepared by applying the definition of Net Working Capital herein. The Purchaser’s calculation of the Closing Date Net Working Capital shall be final and binding on the Parties unless, within thirty (30) days after delivery thereof to the Seller Representative, the Seller Representative delivers to the Purchaser a notice of dispute (a “Dispute Notice”) specifying in reasonable detail the items in dispute. During such 30-day review period, the Purchaser will provide the Seller Representative and its Representatives with reasonable access during normal business hours to the books and records of the Company and all work papers and back up materials relating to the determination of Closing Date Net Working Capital. Such items in dispute shall be limited to claims of the Purchaser’s error or use of accounting principles, policies, practices, classifications or methodologies other than the Company used in preparation of the Balance Sheet. After delivery of a Dispute Notice, the Seller Representative and the Purchaser shall promptly negotiate in good faith with respect to the subject of the Dispute Notice, and if they are unable to reach an agreement within fifteen (15) days after delivery by the Seller Representative of the Dispute Notice, the dispute shall be submitted (no later than five (5) Business Days at the end of such 15-day resolution period) to ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP, or such other independent public accounting firm as mutually agreed to by the Purchaser and the Seller Representative (the “Independent Accounting Firm”). Each Party agrees to execute, if requested by the Independent Accounting Firm, a reasonable engagement letter with respect to the work to be performed by the Independent Accounting Firm. The Independent Accounting Firm shall be directed by the Purchaser and the Seller Representative to issue a final and binding decision within thirty (30) days of submission of the Dispute Notice to the Independent Accounting Firm, as to the issues of disagreement referred to in the Dispute Notice and not resolved by the Purchaser and the Seller Representative. The Independent Accounting Firm shall determine only those items still in dispute by the parties and the Independent Accounting Firm’s determination will be based upon and consistent with the terms and conditions of this Agreement. The determination by the Independent Accounting Firm will be based solely on presentations with respect to such disputed items by the Purchaser and the Seller Representative to the Independent Accounting Firm and not on the Independent Accounting Firm’s independent review. the Purchaser and the Seller Representative will use their reasonable best efforts to make their respective presentations as promptly as practicable following submission to the Independent Accounting Firm of the disputed items, and each party shall be entitled, a part of its presentation, to respond to the presentation of the other party and any questions and requests of the Independent Accounting Firm. In deciding any matter, the Independent Accounting Firm (i) will be bound by the provisions of this Section 2.03(c) and (ii) may not assign a value to any item greater than the greatest value for such item claimed by either the Purchaser or the Seller Representative or less than the smallest value for such item claimed by the Purchaser or the Seller Representative. Each of the Parties agrees that it shall be bound by the determination of the Independent Accounting Firm and such determination may only be reviewed, corrected or set aside by a court of competent jurisdiction only upon a finding by such court that the Independent Accounting Firm committed fraud or manifest error with respect to its determination. The determination of the Independent Accounting Firm will not be deemed an award subject to review under the Federal Arbitration Act or any other statute. The fees and expenses of the Independent Accounting Firm shall be borne by the non-prevailing party to the decision of the Independent Accounting Firm if one party prevails on all disputed items; if neither the Purchaser or the Seller Representative were correct with respect to all of the disputed items, then the Purchaser, on the one hand, and the Seller Representative, on the other hand, will each pay half of the Independent Auditor’s fees. Except as provided in the preceding sentences, all other costs and expenses incurred by the Parties in connection with resolving any dispute hereunder before the Independent Accounting Firm will be borne by the party incurring such cost and expense.
(d) If the Closing Date Net Working Capital, as determined in accordance with Section 2.03(c) above, is less than One Million Five Hundred Thousand Dollars ($1,500,000) (the “Target Net Working CapitalDeposit”), the Aggregate Consideration shall be reduced on a dollar-for-dollar basis by the amount by which the Target Net Working Capital exceeds the Closing Date Net Working Capital, and Seller shall pay the Purchaser the dollar amount by which the Target Net Working Capital exceeds the Closing Date Net Working Capital first by offset of the NWC Holdback, if any, and the remainder, if any, in cash within five (5) Business Days after the final determination of the Closing Date Net Working Capital pursuant to Section 2.03(c). Seller shall be liable for the amount of any deficit in the Target Net Working Capital pursuant to this Section 2.03(d), and such liability shall be in addition to, and independent of, any and all limitations, thresholds and exclusivity provisions set forth in Article VII of this Agreement. Notwithstanding the foregoing, if the Closing Date Net Working Capital is greater than the Target Net Working Capital, then the Cash Consideration shall be increased on a dollar-for-dollar basis by the amount by which the Closing Date Net Working Capital exceeds the Target Net Working Capital, and the Purchaser shall pay the Seller the dollar amount by which the Closing Date Net Working Capital exceeds the Target Net Working Capital in cash within five (5) Business Days after the final determination of the Closing Date Net Working Capital pursuant to Section 2.03(c). Any amount of the NWC Holdback not offset by Purchaser pursuant to this Section 2.03(c) shall be paid by the Purchaser to the Seller within five Purchaser's solicitors as an escrow agent (5the “Escrow Agent”) Business Days after to hold in accordance with the final determination of Closing Date Net Working Capital pursuant to Section 2.03(c).escrow agreement entered into between LCCE, the Purchaser and the Escrow Agent;
(eb) No later than one day prior on Completion, the Purchaser shall pay to LCCE:
(i) the sum of S$9,941,600 (the “Closing DateAmount”); or
(ii) the Adjusted Closing Amount (as defined in Section 4.3.3 below), Seller Representative shall deliver subject to Purchaser a good faith estimate adjustment in accordance with Section 4.3.3 below, such Closing Amount or the Adjusted Closing Amount (as the case may be) to be effected by way of cashier's order(s) in an amount in satisfaction of the Closing Date Net Working Capital and attach Redemption Amount (as defined in the estimate to this Agreement as Schedule 2.03(eSPA) in favour of Sing Investments & Finance Limited (“Estimated Closing Date Net Working CapitalSIFL”) and the balance to LCCE by way of bank telegraphic transfer, cashier’s order or banker’s draft; and
(c) on Completion, the Purchaser shall pay to LCCE the sum of S$1,058,400 (the “Retention Sum”), which shall be paid by the Purchaser to Madison Pacific Pte Ltd as an escrow agent (the “Retention Sum Escrow Agent”) to hold in accordance with the escrow agreement (in respect of the Retention Sum), entered or to be entered into on or before Completion among LCCE, the Purchaser and the Retention Sum Escrow Agent (the “Retention Sum Escrow Agreement”). If The Consideration was arrived at on a willing seller willing buyer basis after taking into account various commercial factors including the Estimated Closing Date Net Working Capital is less than location of the Target Net Working Capital, Purchaser shall hold the difference between the Estimated Closing Date Net Working Capital Property and the Target Net Working Capital back from the portion terms and conditions of the Cash Consideration paid pursuant to Section 2.03(a)(iii) (Proposed Disposal as set out in the “NWC Holdback”) until five (5) Business Days after the final determination of Closing Date Net Working Capital pursuant to Section 2.03(c), at which time it will be paid to the Purchaser or the Seller as required by Section 2.03(d)SPA.
Appears in 1 contract
Sources: Sale and Purchase Agreement
Aggregate Consideration. (a) Subject to Upon the terms and subject to the conditions of this Agreement, the total consideration (the "Aggregate Consideration") payable by Buyer in reliance upon connection with the representations, warranties, covenants and agreements of Seller, the Seller Related Parties and Company set forth hereinShare Purchase shall be payable to, and as consideration for the purchase and sale of the Shares, on and as of the Closing Date, the Purchaser agrees to pay and transfer to the Seller the following consideration (collectively, the “Aggregate Consideration”): (A) Twenty Eight Million Dollars ($28,000,000), as adjusted pursuant to Section 2.03(e) and reduced by the amounts described in Sections 2.03(a)(i) and 2.03(a)(ii) below (the “Cash Consideration” ), payable in the manner set forth below; (B) subject to Section 2.03(b), that number of shares of Purchaser Common Stock determined by dividing Two Million Dollars ($2,000,000) by the average market price at which shares of Purchaser’s registered common stock traded on the NASDAQ Global Market over the last ten (10) trading days immediately prior to the Closing Date (the “Closing Price”); (C) the amount, if any, determined pursuant to Section 2.03(d) below within the time frame set forth therein; and (D) the amounts, if any, determined pursuant to Section 6.05(f) and Section 6.05(k) below within the time frames set forth therein. On and as of the Closing Date, Purchaser will pay the Cash Consideration by wire transfer of immediately available funds to the recipients as designated in a flow of funds memorandum (with wire instructions for the below payments or instructions to pay certain amounts by check) prepared by the Seller and Company and reasonably acceptable to Purchaser (the “Flow of Funds Memorandum”) and containing the followingconsist of:
(i) Sixty One Thousand and Five Hundred (61,500) Parent Ordinary Shares (the "Holdback Shares"), which Holdback Shares shall be held back by Buyer for one year following the Closing to secure indemnification obligations of Sellers under this Agreement and paid to Sellers (or Bonus Holders designated in the Final Payment Spreadsheet) in accordance with, and subject to, Article VIII. The amount allocation of any Indebtedness (the Holdback Shares, if any) that will and when released to Sellers and Bonus Holders, shall be paid at Closingas set forth in the Final Payment Spreadsheet;
(ii) The amount the Closing Cash Consideration, payable on the Closing Date pursuant to the wire instructions and allocation set forth in the Final Payment Spreadsheet;
(iii) the Closing Share Consideration less the Holdback Shares, issued for the benefit of expenses payable the Sellers (or Bonus Holders designated in the Final Payment Spreadsheet), which shall be delivered by Parent as follows: on the Seller Closing Date, Parent shall deliver to the Parent’s transfer agent (with a copy to the Company) duly executed irrevocable instructions, in a form reasonably acceptable to the Company, instructing the transfer agent to deliver, on an expedited basis, certificates evidencing a number of Parent Ordinary Shares equal, in the aggregate, to the Closing Share Consideration, registered in the name of the Sellers or Bonus Holders in accordance with the provisions of this Agreement and the Company allocation set forth in connection with the consummation of the transactions contemplated hereby (e.g., payment to legal counsel, accountants and financial advisors) to the extent remaining unpaid as of the ClosingFinal Payment Spreadsheet; and
(iiiiv) The Cash Consideration the Earn-Out Payment Amount, if any, payable to the Sellers and Bonus Holders (less in accordance with the amounts set forth in clauses (i) provisions of this Agreement and (ii) above) to Seller.
(b) On the Closing Date, all of the shares of Purchaser Common Stock to be issued pursuant to Section 2.03(a)(B) above (the “Holdback Shares”) shall be held by Purchaser subject to a holdback agreement between the Seller Representative, Seller and Purchaser in the form attached hereto as Exhibit A (the “Holdback Agreement”) until the end of the fifteen (15) month period following the Closing Date (or as otherwise allocation set forth in the Holdback Agreement, the “Holdback Period”), as partial security for the indemnification obligations of the Seller and Seller Related Parties set forth in this Agreement. In calculating the value of the Holdback Shares for purposes of satisfying any indemnity claim of Purchaser under this Agreement, each Holdback Share shall be valued at the Closing Price, and indemnity claims which are paid under the Holdback Agreement shall be satisfied by cancelling the number of Holdback Shares that are equal to the claim amount based on the Closing Price of such shares. Upon termination of the Holdback Period, the remaining Holdback Shares, if any, shall be distributed to the Seller (the date of distribution, the “Distribution Date”).
(cFinal Payment Spreadsheet) Within sixty (60) days after the Closing Date, the Purchaser shall prepare and deliver to the Seller Representative the calculation of Net Working Capital as of 11:59 p.m. of the Closing Date (the “Closing Date Net Working Capital”) , which calculation shall contain reasonable details and statements as to the assumptions, means and other inputs by which such calculation was determined. The calculation of the Closing Date Net Working Capital will be prepared by applying the definition of Net Working Capital herein. The Purchaser’s calculation of the Closing Date Net Working Capital shall be final and binding on the Parties unless, within thirty (30) days after delivery thereof to the Seller Representative, the Seller Representative delivers to the Purchaser a notice of dispute (a “Dispute Notice”) specifying in reasonable detail the items in dispute. During such 30-day review period, the Purchaser will provide the Seller Representative and its Representatives with reasonable access during normal business hours to the books and records of the Company and all work papers and back up materials relating to the determination of Closing Date Net Working Capital. Such items in dispute shall be limited to claims of the Purchaser’s error or use of accounting principles, policies, practices, classifications or methodologies other than the Company used in preparation of the Balance Sheet. After delivery of a Dispute Notice, the Seller Representative and the Purchaser shall promptly negotiate in good faith with respect to the subject of the Dispute Notice, and if they are unable to reach an agreement within fifteen (15) days after delivery by the Seller Representative of the Dispute Notice, the dispute shall be submitted (no later than five (5) Business Days at the end of such 15-day resolution period) to ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP, or such other independent public accounting firm as mutually agreed to by the Purchaser and the Seller Representative (the “Independent Accounting Firm”). Each Party agrees to execute, if requested by the Independent Accounting Firm, a reasonable engagement letter with respect to the work to be performed by the Independent Accounting Firm. The Independent Accounting Firm shall be directed by the Purchaser and the Seller Representative to issue a final and binding decision within thirty (30) days of submission of the Dispute Notice to the Independent Accounting Firm, as to the issues of disagreement referred to in the Dispute Notice and not resolved by the Purchaser and the Seller Representative. The Independent Accounting Firm shall determine only those items still in dispute by the parties and the Independent Accounting Firm’s determination will be based upon and consistent with the terms and conditions of this Agreement. The determination by the Independent Accounting Firm will be based solely on presentations with respect to such disputed items by the Purchaser and the Seller Representative to the Independent Accounting Firm and not on the Independent Accounting Firm’s independent review. the Purchaser and the Seller Representative will use their reasonable best efforts to make their respective presentations as promptly as practicable following submission to the Independent Accounting Firm of the disputed items, and each party shall be entitled, a part of its presentation, to respond to the presentation of the other party and any questions and requests of the Independent Accounting Firm. In deciding any matter, the Independent Accounting Firm (i) will be bound by the provisions of this Section 2.03(c) and (ii) may not assign a value to any item greater than the greatest value for such item claimed by either the Purchaser or the Seller Representative or less than the smallest value for such item claimed by the Purchaser or the Seller Representative. Each of the Parties agrees that it shall be bound by the determination of the Independent Accounting Firm and such determination may only be reviewed, corrected or set aside by a court of competent jurisdiction only upon a finding by such court that the Independent Accounting Firm committed fraud or manifest error with respect to its determination. The determination of the Independent Accounting Firm will not be deemed an award subject to review under the Federal Arbitration Act or any other statute. The fees and expenses of the Independent Accounting Firm shall be borne by the non-prevailing party to the decision of the Independent Accounting Firm if one party prevails on all disputed items; if neither the Purchaser or the Seller Representative were correct with respect to all of the disputed items, then the Purchaser, on the one hand, and the Seller Representative, on the other hand, will each pay half of the Independent Auditor’s fees. Except as provided in the preceding sentences, all other costs and expenses incurred by the Parties in connection with resolving any dispute hereunder before the Independent Accounting Firm will be borne by the party incurring such cost and expense.
(d) If the Closing Date Net Working Capital, as determined in accordance with Section 2.03(c) above, is less than One Million Five Hundred Thousand Dollars ($1,500,000) (the “Target Net Working Capital”), the Aggregate Consideration shall be reduced on a dollar-for-dollar basis by the amount by which the Target Net Working Capital exceeds the Closing Date Net Working Capital, and Seller shall pay the Purchaser the dollar amount by which the Target Net Working Capital exceeds the Closing Date Net Working Capital first by offset of the NWC Holdback, if any, and the remainder, if any, in cash within five (5) Business Days after the final determination of the Closing Date Net Working Capital pursuant to Section 2.03(c). Seller shall be liable for the amount of any deficit in the Target Net Working Capital pursuant to this Section 2.03(d), and such liability shall be in addition to, and independent ofin accordance with, Section 1.3(b) below. For the sake of clarity, any and all limitationsCompany Indebtedness, thresholds and exclusivity provisions set forth in Article VII of this Agreement. Notwithstanding the foregoingCompany Transaction Expenses or Bonus Closing Consideration, if and solely to the extent actually deducted from the Closing Date Net Working Capital is greater than the Target Net Working Capital, then the Cash Consideration shall be increased on a dollar-for-dollar basis by the amount by which the Closing Date Net Working Capital exceeds the Target Net Working Capitalpayable to Sellers hereunder, and the Purchaser shall pay the Seller the dollar amount by which the Closing Date Net Working Capital exceeds the Target Net Working Capital in cash within five (5) Business Days after the final determination of the Closing Date Net Working Capital pursuant to Section 2.03(c). Any amount of the NWC Holdback not offset by Purchaser pursuant to this Section 2.03(c) shall be paid by the Purchaser to Buyer in accordance with the Seller within five (5) Business Days after the final determination of Closing Date Net Working Capital pursuant to Section 2.03(c)Final Payment Spreadsheet.
(e) No later than one day prior to the Closing Date, Seller Representative shall deliver to Purchaser a good faith estimate of the Closing Date Net Working Capital and attach the estimate to this Agreement as Schedule 2.03(e) (“Estimated Closing Date Net Working Capital”). If the Estimated Closing Date Net Working Capital is less than the Target Net Working Capital, Purchaser shall hold the difference between the Estimated Closing Date Net Working Capital and the Target Net Working Capital back from the portion of the Cash Consideration paid pursuant to Section 2.03(a)(iii) (the “NWC Holdback”) until five (5) Business Days after the final determination of Closing Date Net Working Capital pursuant to Section 2.03(c), at which time it will be paid to the Purchaser or the Seller as required by Section 2.03(d).
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