Common use of Payment Statement Clause in Contracts

Payment Statement. No later than two (2) Business Days prior to the Closing Date, Seller Parent shall deliver a written statement (the “Payment Statement”) to the Buyer Entities setting forth, with reasonable supporting information, the following: (i) the Estimated Business Enterprise Value, including a good-faith estimate of (1) the Closing Date Cash (the “Estimated Closing Date Cash”), (2) the Closing Date Indebtedness (the “Estimated Closing Date Indebtedness”), and (3) the Net Working Capital Adjustment Amount (the “Estimated Net Working Capital Adjustment Amount”); (ii) wiring instructions for the payment contemplated by Section 1(b); and (iii) the allocation of the Estimated Business Enterprise Value between Sellers (each Seller’s percentage allocation being referred to as its “Allocation Percentage”). Between the delivery of the Payment Statement and the Measurement Time, Seller Parent shall (A) provide the Buyer Entities and their Representatives with reasonable access, during normal business hours, to the books and records (including work papers, schedules, memoranda and other documents), supporting data, facilities and employees of the Business for purposes of their review of the Payment Statement, and (B) reasonably cooperate with the Buyer Entities and their Representatives in connection with such review, including using commercially reasonable efforts to provide on a timely basis all other information reasonably necessary in connection with the review of the Payment Statement, in each case, as reasonably requested by the Buyer Entities and their Representatives. Notwithstanding anything to the contrary in this Agreement, between the Measurement Time and the Closing, Sellers shall not, and Sellers shall not cause any Acquired Entity to, take any action (or omit to take any action) outside of the ordinary course of business and not contemplated by this Agreement that has the effect of modifying the Estimated Closing Date Cash, Estimated Closing Date Indebtedness, or Estimated Net Working Capital Adjustment Amount in order to increase the amounts payable to the Sellers. Following the delivery of the Payment Statement, Seller Parent shall consider in good faith any comments of the Buyer Entities to the Payment Statement and the calculations set forth therein (provided that any failure to accept any such comments to the Payment Statement shall not relieve the Buyer Entities of their obligations to consummate the Closing when required hereunder). Seller Parent shall use commercially reasonable efforts to deliver a draft of the Payment Statement to Buyer Parent no later than five (5) Business Days prior to the Closing Date.

Payment Statement. No later than two The Earnout Objections Statement must be delivered to Purchaser within fifteen (215) Business Days prior days after delivery of such Earnout Payment Statement. If an Earnout Objections Statement is not delivered to Purchaser within such period, the Earnout Payment contained in the Earnout Payment Statement shall be final and binding on and non-appealable by the parties hereto. To the extent an Earnout Objections Statement is timely delivered to Purchaser, (A) Purchaser shall cause the Company to pay to Seller any portion of the Earnout Payment that is not in dispute and (B) Purchaser and Seller shall negotiate in good faith to resolve any disputed amount (and to the Closing Dateextent such objections in the Earnout Objections Statement are so resolved by mutual written agreement, the Earnout Payment contained in the Earnout Payment Statement shall be adjusted as so resolved and shall thereupon be final and binding on and non-appealable by the parties hereto). If Purchaser and Seller Parent do not reach a final agreement within thirty (30) days after the delivery of the Earnout Objections Statement, Purchaser or Seller may submit such dispute to the Referee. The parties shall furnish to the Referee the Earnout Payment Statement and the Earnout Objections Statement and (from time to time as requested by the Referee) such other information and documents as the Referee may reasonably request in order for the Referee to resolve the dispute. The Referee shall resolve all disputed items and shall deliver a written statement determination to Purchaser and Seller within thirty (the “Payment Statement”30) days after such matter is referred to the Buyer Entities setting forthReferee. The resolution of the dispute by the Referee shall be final and binding on and non-appealable by the parties hereto. The fees and expenses of the Referee shall be allocated to and paid by Seller based upon the percentage that the portion of the disputed amount not resolved in the favor of Seller bears to the total amount actually contested by Seller, as determined by the Referee, and the remaining fees and expenses, if any, shall be allocated to and shall be paid by Purchaser, along with reasonable supporting information, the following: (i) the Estimated Business Enterprise Value, including a good-faith estimate of (1) the Closing Date Cash (the “Estimated Closing Date Cash”any additional amount owing to Seller pursuant to Section 1.2(a), (2) the Closing Date Indebtedness (the “Estimated Closing Date Indebtedness”), and (3) the Net Working Capital Adjustment Amount (the “Estimated Net Working Capital Adjustment Amount”); (ii) wiring instructions for the payment contemplated by Section 1(b); and (iii) the allocation of the Estimated Business Enterprise Value between Sellers (each Seller’s percentage allocation being referred to as its “Allocation Percentage”). Between the delivery of the Payment Statement and the Measurement Time, Seller Parent shall (A) provide the Buyer Entities and their Representatives with reasonable access, during normal business hours, to the books and records (including work papers, schedules, memoranda and other documents), supporting data, facilities and employees of the Business for purposes of their review of the Payment Statement, and (B) reasonably cooperate with the Buyer Entities and their Representatives in connection with such review, including using commercially reasonable efforts to provide on a timely basis all other information reasonably necessary in connection with the review of the Payment Statement, in each case, as reasonably requested determined by the Buyer Entities and their Representatives. Notwithstanding anything to the contrary in this Agreement, between the Measurement Time and the Closing, Sellers shall not, and Sellers shall not cause any Acquired Entity to, take any action (or omit to take any action) outside of the ordinary course of business and not contemplated by this Agreement that has the effect of modifying the Estimated Closing Date Cash, Estimated Closing Date Indebtedness, or Estimated Net Working Capital Adjustment Amount in order to increase the amounts payable to the Sellers. Following the delivery of the Payment Statement, Seller Parent shall consider in good faith any comments of the Buyer Entities to the Payment Statement and the calculations set forth therein (provided that any failure to accept any such comments to the Payment Statement shall not relieve the Buyer Entities of their obligations to consummate the Closing when required hereunder). Seller Parent shall use commercially reasonable efforts to deliver a draft of the Payment Statement to Buyer Parent no later than five (5) Business Days prior to the Closing DateReferee.

Payment Statement. No later than two Within five (25) Business Days prior to after the Closing Dateoriginally scheduled filing date for EMRISE’s Form 10-Q with the Securities and Exchange Commission covering the quarterly period during which the applicable Measurement Period ends, Seller Parent the Company (on behalf of the Buyer) shall deliver to Sellers a written statement (the “Payment Statement”), including supporting documentation, setting forth for such Measurement Period (i) Operating Income, (ii) the aggregate principal amount of the Subordinated Contingent Notes, if any, and (iii) the amount of Deferred Purchase Price, if any. The amount of the Deferred Purchase Price Payment, if any, set forth in such Payment Statement shall be paid in the manner described in Section 2.6(a). The applicable Payment Statement shall become final and binding upon Buyer and Sellers on the 30th day following delivery thereof, unless Sellers give notice of disagreement with such Payment Statement (a “Dispute Notice”) to Buyer prior to such date. Any Dispute Notice shall specify in reasonable detail the nature of any disagreement so asserted. If a Dispute Notice is received by Buyer Entities setting forthin a timely manner, with reasonable supporting information, then the following: amount of the applicable Deferred Purchase Price Payment shall become final and binding upon Buyer and Sellers on the earlier of (i) the Estimated Business Enterprise Value, including a good-faith estimate of date Buyer and Sellers resolve in writing any differences they have with respect to the matters specified in the Dispute Notice and (1ii) the Closing Date Cash date any disputed matters are finally resolved in writing by the Accounting Firm. During the 30-day period (the “Estimated Closing Date CashResolution Period”), (2) the Closing Date Indebtedness (the “Estimated Closing Date Indebtedness”), and (3) the Net Working Capital Adjustment Amount (the “Estimated Net Working Capital Adjustment Amount”); (ii) wiring instructions for the payment contemplated by Section 1(b); and (iii) the allocation of the Estimated Business Enterprise Value between Sellers (each Seller’s percentage allocation being referred to as its “Allocation Percentage”). Between following the delivery of the Payment Statement a Dispute Notice, Buyer and the Measurement Time, Seller Parent Sellers shall (A) provide the Buyer Entities use their commercially reasonable efforts and their Representatives seek in good faith to resolve in writing any differences that they may have with reasonable access, during normal business hours, respect to the books and records (including work papers, schedules, memoranda and other documents), supporting data, facilities and employees matters specified in the Dispute Notice. At the end of the Business Resolution Period, Buyer and Sellers shall submit to the Accounting Firm for purposes of their review of the Payment Statementarbitration, and (B) reasonably cooperate in accordance with the standards set forth in this Section 2.6, only matters that remain in dispute and were properly included in the Dispute Notice in accordance with this Section 2.6. Buyer Entities and Sellers shall use their Representatives in connection with such review, including using commercially reasonable efforts to provide on cause the Accounting Firm to render a timely basis all other information reasonably necessary in connection with written decision resolving the review of the Payment Statement, in each case, as reasonably requested by the Buyer Entities and their Representatives. Notwithstanding anything matters submitted to the contrary in this Agreement, between the Measurement Time and the Closing, Sellers shall not, and Sellers shall not cause any Acquired Entity to, take any action Accounting Firm within thirty (or omit to take any action30) outside days of the ordinary course of business and not contemplated by this Agreement that has the effect of modifying the Estimated Closing Date Cash, Estimated Closing Date Indebtedness, or Estimated Net Working Capital Adjustment Amount in order to increase the amounts payable to the Sellers. Following the their delivery of such submission. The Accounting Firm shall determine Operating Income for the Payment Statement, Seller Parent shall consider in good faith any comments of the Buyer Entities applicable Measurement Period pursuant to the Payment Statement and the calculations set forth therein (provided that any failure to accept any such comments to the Payment Statement shall not relieve the Buyer Entities of their obligations to consummate the Closing when required hereunder). Seller Parent shall use commercially reasonable efforts to deliver a draft of the Payment Statement to Buyer Parent no later than five (5) Business Days prior to the Closing Date.this