True-Up. (a) No later than ninety (90) calendar days after the Closing Date, Buyer shall prepare and deliver, or cause to be prepared and delivered, to Seller a certificate (the “Post-Closing Statement”), executed by an executive officer of Buyer, setting forth Buyer’s good faith calculation of as of the opening of business on the Closing Date: (i) the amount of the Company’s Cash; (ii) the amount of the Company’s Debt; and (iii) the amount of the Company’s Net Asset Balance; (iv) the amount of the Company’s unpaid Transaction Expenses, together with a calculation of the Closing Consideration based on the foregoing amounts as well as reasonably detailed supporting documentation for such calculation. (b) Seller shall have thirty (30) days following its receipt of the Post-Closing Statement (the “Review Period”) to review the same. On or before the expiration of the Review Period, Seller shall deliver to Buyer a written statement accepting or disputing the Post-Closing Statement. In the event that Seller shall dispute the Post-Closing Statement, such statement shall include a reasonably detailed itemization of Seller’s objections and the reasons therefor (such statement, a “Dispute Statement”). Any component of the Post-Closing Statement that is not disputed in a Dispute Statement shall be final and binding on the Parties and not subject to appeal. If Seller does not deliver a Dispute Statement to Buyer within the Review Period or delivers a statement accepting the Post-Closing Statement, the Post-Closing Statement shall be final and binding on the Parties and not subject to appeal. For clarity, any accounts receivable reflected in the Closing Financial Certificate that are not collected within seventy-five (75) calendar days after the Closing Date may be treated by Buyer as invalid in the Post-Closing Statement and such treatment may not be disputed by Seller in the Dispute Statement. (c) If Seller delivers a Dispute Statement during the Review Period, Buyer and Seller shall promptly meet and attempt in good faith to resolve their differences with respect to the disputed items set forth in the Dispute Statement during the thirty (30) calendar days immediately following Buyer’s receipt of the Dispute Statement, or such longer period as Buyer and Seller may mutually agree (the “Resolution Period”). Any such disputed items that are mutually resolved in writing by Buyer and Seller during the Resolution Period shall be final and binding on the Parties and not subject to appeal. If Buyer and Seller do not mutually resolve in writing all such disputed items by the end of the Resolution Period, Buyer and Seller shall submit all items remaining in dispute with respect to the Dispute Statement to an independent accounting firm (in each case, as Buyer and Seller shall reasonably agree) (the “Accounting Firm”) for review and resolution. The Accounting Firm shall act as an expert and not an arbitrator. The Accounting Firm shall determine only those items remaining in dispute between Buyer and Seller, and shall only be permitted or authorized to determine an amount with respect to any such disputed item that is within the range of the amount of such disputed item as proposed by Buyer in the Post-Closing Statement and the amount of such disputed item as proposed by Seller in the Dispute Statement. Each of Buyer and Seller shall (i) enter into a customary engagement letter with the Accounting Firm at the time such dispute is submitted to the Accounting Firm and otherwise cooperate with the Accounting Firm, (ii) have the opportunity to submit a written statement in support of their respective positions with respect to such disputed items, to provide supporting material to the Accounting Firm in defense of their respective positions with respect to such disputed items and to submit a written statement responding to the other Party’s position with respect to such disputed items and (iii) subject to customary confidentiality and indemnity agreements, provide the Accounting Firm with access to their respective books, records, personnel and representatives and such other information as the Accounting Firm may require in order to render its determination. The Accounting Firm shall be instructed to deliver to Buyer and Seller a written determination (such determination to include a worksheet setting forth all material calculations used in arriving at such determination and to be based solely on information provided to the Accounting Firm by Buyer and Seller) of the disputed items within thirty (30) calendar days of receipt of the disputed items, which determination shall be final and binding on the Parties and not subject to appeal. All fees and expenses relating to the work (if any) to be performed by the Accounting Firm will be allocated between Buyer, on the one hand, and Seller (on behalf of the Effective Time Holders), on the other hand, in the same proportion that the aggregate amount of the disputed items so submitted to the Accounting Firm that is unsuccessfully disputed by each such Party (as finally determined by the Accounting Firm) bears to the total disputed amount of such items so submitted. Such allocation calculation shall be made by the Accounting Firm as part of its determination. (d) The Closing Consideration, calculated based on: (i) the amount of the Company’s Cash; (ii) the amount of the Company’s Debt; and (iii) the amount of the Company’s Net Asset Balance; (iv) the amount of the Company’s unpaid Transaction Expenses, each as deemed final and binding on the Parties pursuant to this Section 2.8, is referred to herein as the “Final Closing Consideration”. (e) If the amount of the Final Closing Consideration exceeds the amount of the Closing Consideration calculated based on the Closing Financial Certificate (such excess amount, the “Positive Adjustment”), then then the amount of such Positive Adjustment will be added to the First Installment Payment. (f) If the amount of the Closing Consideration calculated based on the Closing Financial Certificate exceeds the amount of the Final Closing Consideration (the “Negative Adjustment”), the amount of such Negative Adjustment shall be recovered by Buyer via offset against the First Installment Payment, and in the event that after such offset a portion of the Negative Adjustment remains unpaid, then Buyer in its sole discretion may offset such remaining unpaid amount against the Second Installment Payment or may require Seller to repay such amount to Buyer. (g) Any payment made under this Section 2.8, to the maximum extent permitted by applicable Law, shall be treated for all Tax purposes as an adjustment to the Total Consideration.
Appears in 2 contracts
Sources: Share Purchase Agreement (Quinstreet, Inc), Share Purchase Agreement
True-Up. (a) No later than ninety (90) calendar days after Upon the expiration of the True-Up Period, the parties shall recalculate the Closing Revenue-Run Rate Purchase Price Adjustment as of the Closing Date, except that the Adjusted Assets Under Management with respect to the Contingent Accounts shall be included in the calculation of such recalculated Closing Revenue Run-Rate Purchase Price Adjustment:
(i) in the case of any Contingent Account pursuant to clause (a)(i) of the definition thereof that (A) has satisfied any Assignment Requirements applicable to such account not later than the final day of the True-Up Period or (B) (i) has not terminated the Investment Advisory Arrangement (or has, on or before the final day of the True-Up Period (and, in the case of a New Advisory Contract with the ▇▇▇ ▇▇▇▇▇▇ Business, after Closing), entered into a New Advisory Contract with the ▇▇▇ ▇▇▇▇▇▇ Business, Buyer shall prepare or any of its Affiliates on terms substantially comparable (but having the same advisory and deliver, or cause same aggregate non-advisory fees) to those of the applicable Existing Advisory Contract) and (ii) continues to be prepared and delivereda Client of the ▇▇▇ ▇▇▇▇▇▇ Business, Buyer or any of its Affiliates on the final day of the True-Up Period (unless, in the case of this clause (B), Buyer or its applicable Affiliate will be required to terminate such Investment Advisory Arrangement due to the failure to satisfy the Assignment Requirements by such final day), to Seller a certificate the extent of the amount by which (x) the “Post-Closing Statement”), executed by an executive officer reduction made to Adjusted Assets Under Management in respect of Buyer, setting forth Buyer’s good faith any such Contingent Account for purposes of the original calculation of the Closing Revenue Run-Rate (assuming that calculation had been done as of the opening of business on the Closing Date: ) exceeds (iy) the amount of the Company’s Cash; redemptions, withdrawals or terminations that actually occur with respect to such account prior to the final day of the True-Up Period;
(ii) in the amount case of any Contingent Account solely pursuant to clause (a)(ii) of the Company’s Debt; and (iii) definition thereof that has satisfied any Assignment Requirements applicable to such account not later than the amount final day of the Company’s Net Asset Balance; (iv) True-Up Period, to the amount extent of the Company’s unpaid Transaction Expenses, together with a reduction made to Adjusted Assets Under Management in respect of any such Contingent Account for purposes of the original calculation of the Closing Consideration based Revenue Run-Rate (assuming that calculation had been done as of the Closing Date);
(iii) in the case of any Contingent Account pursuant to clause (a)(iii) or (b) of the definition thereof, to the extent of amounts actually funded in the account not later than the final day of the True-Up Period; and
(iv) in the case of any Contingent Account relating to a Fund with respect to which a Fund Change Announcement has occurred, and assuming, in the case of any Fund Change Announcement relating to a portfolio management team change for the Funds set forth on Exhibit C, that such Fund has satisfied any Assignment Requirements, to the foregoing amounts as well as reasonably detailed supporting documentation for extent of the full amount of such calculationContingent Account.
(b) If such recalculation yields:
(i) a reduced Closing Revenue Run-Rate Purchase Price Reduction, an increased Closing Revenue Run-Rate Purchase Price Increase or an amount that would give rise for the first time to a Closing Revenue Run-Rate Purchase Price Increase, then Buyer shall pay to Seller an amount that is equal to the amount of such reduction to the Closing Revenue Run-Rate Purchase Price Reduction, the amount of such increase to the Closing Revenue Run-Rate Purchase Price Increase or the amount of such Closing Revenue Run-Rate Purchase Price Increase (as applicable) as soon as is reasonably practicable after, but in any event within three Business Days of, the date upon which the recalculation described in this Section 2.06(b)(i) is made, with such payment increasing the Aggregate Cash Consideration and the Aggregate Equity Consideration in the manner described in Section 2.05(b); or
(ii) an increased Closing Revenue Run-Rate Purchase Price Reduction, a reduced Closing Revenue Run-Rate Purchase Price Increase or an amount that would give rise for the first time to a Closing Revenue Run-Rate Purchase Price Reduction, then Seller shall have thirty (30) days following its receipt pay to Buyer an amount that is equal to the amount of such increase to the Closing Revenue Run-Rate Purchase Price Reduction, the amount of such reduction to the Closing Revenue Run-Rate Purchase Price Increase or the amount of the PostClosing Revenue Run-Closing Statement Rate Purchase Price Reduction (as applicable) as soon as is reasonably practicable after, but in any event within three Business Days of, the “Review Period”date upon which the recalculation described in this Section 2.06(b)(ii) to review is made, with such payment reducing the same. On or before the expiration of the Review Period, Seller shall deliver to Buyer a written statement accepting or disputing the Post-Closing Statement. In the event that Seller shall dispute the Post-Closing Statement, such statement shall include a reasonably detailed itemization of Seller’s objections Aggregate Cash Consideration and the reasons therefor (such statement, a “Dispute Statement”). Any component of the Post-Closing Statement that is not disputed in a Dispute Statement shall be final and binding on the Parties and not subject to appeal. If Seller does not deliver a Dispute Statement to Buyer within the Review Period or delivers a statement accepting the Post-Closing Statement, the Post-Closing Statement shall be final and binding on the Parties and not subject to appeal. For clarity, any accounts receivable reflected Aggregate Equity Consideration in the Closing Financial Certificate that are not collected within seventy-five (75) calendar days after the Closing Date may be treated by Buyer as invalid manner described in the Post-Closing Statement and such treatment may not be disputed by Seller in the Dispute StatementSection 2.05(b).
(c) If Seller delivers Any reduction or increase in the Aggregate Cash Consideration pursuant to this Section 2.06 shall be payable in immediately available funds by wire transfer to an account of Buyer or Seller, as the case may be, with a Dispute Statement during bank designated by such receiving party. Any reduction or increase in the Review PeriodAggregate Equity Consideration shall be payable by delivering to Buyer or Seller, Buyer and Seller shall promptly meet and attempt in good faith to resolve their differences with respect as the case may be, stock certificates representing such adjustment to the disputed items set forth in Aggregate Equity Consideration pursuant to this Section 2.06 (with the Dispute Statement during the thirty (30) calendar days immediately following Buyer’s receipt number of the Dispute Statement, or such longer period as shares of Buyer and Seller may mutually agree (the “Resolution Period”). Any such disputed items that are mutually resolved in writing by Buyer and Seller during the Resolution Period shall Stock to be final and binding delivered calculated based on the Parties and not subject to appeal. If Buyer and Seller do not mutually resolve in writing all such disputed items by Signing Price) or, if the end Aggregate Equity Consideration is uncertificated, other appropriate evidence of the Resolution Period, Buyer and Seller shall submit all items remaining in dispute with respect to the Dispute Statement to an independent accounting firm (in each case, as Buyer and Seller shall ownership reasonably agree) (the “Accounting Firm”) for review and resolution. The Accounting Firm shall act as an expert and not an arbitrator. The Accounting Firm shall determine only those items remaining in dispute between Buyer and Seller, and shall only be permitted or authorized to determine an amount with respect to any such disputed item that is within the range of the amount of such disputed item as proposed by Buyer in the Post-Closing Statement and the amount of such disputed item as proposed by Seller in the Dispute Statement. Each of Buyer and Seller shall (i) enter into a customary engagement letter with the Accounting Firm at the time such dispute is submitted to the Accounting Firm and otherwise cooperate with the Accounting Firm, (ii) have the opportunity to submit a written statement in support of their respective positions with respect acceptable to such disputed items, to provide supporting material to the Accounting Firm in defense of their respective positions with respect to such disputed items and to submit a written statement responding to the other Party’s position with respect to such disputed items and (iii) subject to customary confidentiality and indemnity agreements, provide the Accounting Firm with access to their respective books, records, personnel and representatives and such other information as the Accounting Firm may require in order to render its determination. The Accounting Firm shall be instructed to deliver to Buyer and Seller a written determination (such determination to include a worksheet setting forth all material calculations used in arriving at such determination and to be based solely on information provided to the Accounting Firm by Buyer and Seller) of the disputed items within thirty (30) calendar days of receipt of the disputed items, which determination shall be final and binding on the Parties and not subject to appeal. All fees and expenses relating to the work (if any) to be performed by the Accounting Firm will be allocated between Buyer, on the one hand, and Seller (on behalf of the Effective Time Holders), on the other hand, in the same proportion that the aggregate amount of the disputed items so submitted to the Accounting Firm that is unsuccessfully disputed by each such Party (as finally determined by the Accounting Firm) bears to the total disputed amount of such items so submitted. Such allocation calculation shall be made by the Accounting Firm as part of its determinationreceiving party.
(d) The Closing Consideration, calculated based on: (i) the amount For purposes of the Company’s Cash; (ii) the amount of the Company’s Debt; and (iii) the amount of the Company’s Net Asset Balance; (iv) the amount of the Company’s unpaid Transaction Expenses, each as deemed final and binding on the Parties pursuant to this Section 2.82.06, is referred all references to herein as the “Final Closing Consideration”.
(e) If the amount of the Final Closing Consideration exceeds the amount of the Closing Consideration calculated based on Measurement Date included in the definitions of Adjusted Assets Under Management and Closing Revenue Run-Rate shall be deemed references to the Closing Financial Certificate (such excess amount, the “Positive Adjustment”), then then the amount of such Positive Adjustment will be added to the First Installment PaymentDate.
(f) If the amount of the Closing Consideration calculated based on the Closing Financial Certificate exceeds the amount of the Final Closing Consideration (the “Negative Adjustment”), the amount of such Negative Adjustment shall be recovered by Buyer via offset against the First Installment Payment, and in the event that after such offset a portion of the Negative Adjustment remains unpaid, then Buyer in its sole discretion may offset such remaining unpaid amount against the Second Installment Payment or may require Seller to repay such amount to Buyer.
(g) Any payment made under this Section 2.8, to the maximum extent permitted by applicable Law, shall be treated for all Tax purposes as an adjustment to the Total Consideration.
Appears in 2 contracts
Sources: Transaction Agreement (Morgan Stanley), Transaction Agreement (Invesco Ltd.)
True-Up. (ai) No Following the end of each Fiscal Quarter, as soon as the Company shall have determined the Net Revenues for such Fiscal Quarter and for each other Fiscal Quarter in the Fiscal Year in which the then most recently ended Fiscal Quarter occurred (the “Year-to-Date Net Revenues”) and in any event no later than forty-five (45) days after the end of such Fiscal Quarter (unless such Fiscal Quarter is the last Fiscal Quarter of a Fiscal Year in which case no later than ninety (90) calendar days after the Closing Dateend of such Fiscal Quarter), Buyer the Company shall prepare present Purchaser a certificate, in reasonable detail with supporting calculations and deliverinformation, or cause to be prepared and delivered, to Seller a certificate detailing the Year-to-Date Net Revenues (the “PostTrue-Closing Statement”), executed by an executive officer of Buyer, setting forth Buyer’s good faith calculation of as of the opening of business on the Closing Date: (i) the amount of the Company’s Cash; (ii) the amount of the Company’s Debt; and (iii) the amount of the Company’s Net Asset Balance; (iv) the amount of the Company’s unpaid Transaction Expenses, together with a calculation of the Closing Consideration based on the foregoing amounts as well as reasonably detailed supporting documentation for such calculation.
(b) Seller shall have thirty (30) days following its receipt of the Post-Closing Statement (the “Review Period”) to review the same. On or before the expiration of the Review Period, Seller shall deliver to Buyer a written statement accepting or disputing the Post-Closing Statement. In the event that Seller shall dispute the Post-Closing Statement, such statement shall include a reasonably detailed itemization of Seller’s objections and the reasons therefor (such statement, a “Dispute Up Statement”). Any component The True-Up Statement shall include a calculation of (A) the year-to-date Assigned Interests as of the Post-Closing Statement that is not disputed in a Dispute Statement end of such quarterly period, which shall be final and binding on the Parties and not subject to appeal. If Seller does not deliver product of the Applicable Percentage multiplied by the Year-to-Date Net Revenues, with a Dispute Statement to Buyer within the Review Period or delivers a statement accepting the Post-Closing Statement, the Post-Closing Statement shall be final and binding on the Parties and not subject to appeal. For clarity, separate calculation taking into account any accounts receivable reflected mandatory minimum payments as provided in the Closing Financial Certificate that are not collected definition of Assigned Interests (“Year-to-Date Assigned Interests”) and (B) the difference between (X) the amount Purchaser has received on or prior to the last day of the most recently ended Fiscal Quarter in payments from the Company under Section 2.02(a) or this Section 5.08 in respect of the Fiscal Year for which Year-to-Date Net Revenues is calculated less (Y) the Year-to-Date Assigned Interests (the “True-Up Amount”).
(ii) If the True-Up Amount calculated pursuant to clause (i) above is positive, Purchaser shall pay such amount to the Company within seventy-five (755) calendar days after of receipt by Purchaser of the Closing Date may be treated by Buyer as invalid in the PostTrue-Closing Statement and such treatment may not be disputed by Seller in the Dispute Up Statement.
(ciii) If Seller delivers a Dispute Statement during the Review Period, Buyer and Seller shall promptly meet and attempt in good faith True-Up Amount calculated pursuant to resolve their differences with respect to the disputed items set forth in the Dispute Statement during the thirty (30) calendar days immediately following Buyer’s receipt of the Dispute Statement, or such longer period as Buyer and Seller may mutually agree (the “Resolution Period”). Any such disputed items that are mutually resolved in writing by Buyer and Seller during the Resolution Period shall be final and binding on the Parties and not subject to appeal. If Buyer and Seller do not mutually resolve in writing all such disputed items by the end of the Resolution Period, Buyer and Seller shall submit all items remaining in dispute with respect to the Dispute Statement to an independent accounting firm (in each case, as Buyer and Seller shall reasonably agree) (the “Accounting Firm”) for review and resolution. The Accounting Firm shall act as an expert and not an arbitrator. The Accounting Firm shall determine only those items remaining in dispute between Buyer and Seller, and shall only be permitted or authorized to determine an amount with respect to any such disputed item that is within the range of the amount of such disputed item as proposed by Buyer in the Post-Closing Statement and the amount of such disputed item as proposed by Seller in the Dispute Statement. Each of Buyer and Seller shall clause (i) enter into a customary engagement letter with the Accounting Firm at the time such dispute above is submitted to the Accounting Firm and otherwise cooperate with the Accounting Firm, (ii) have the opportunity to submit a written statement in support of their respective positions with respect to such disputed items, to provide supporting material to the Accounting Firm in defense of their respective positions with respect to such disputed items and to submit a written statement responding to the other Party’s position with respect to such disputed items and (iii) subject to customary confidentiality and indemnity agreements, provide the Accounting Firm with access to their respective books, records, personnel and representatives and such other information as the Accounting Firm may require in order to render its determination. The Accounting Firm shall be instructed to deliver to Buyer and Seller a written determination (such determination to include a worksheet setting forth all material calculations used in arriving at such determination and to be based solely on information provided to the Accounting Firm by Buyer and Seller) of the disputed items within thirty (30) calendar days of receipt of the disputed items, which determination shall be final and binding on the Parties and not subject to appeal. All fees and expenses relating to the work (if any) to be performed by the Accounting Firm will be allocated between Buyer, on the one hand, and Seller (on behalf of the Effective Time Holders), on the other hand, in the same proportion that the aggregate amount of the disputed items so submitted to the Accounting Firm that is unsuccessfully disputed by each such Party (as finally determined by the Accounting Firm) bears to the total disputed amount of such items so submitted. Such allocation calculation shall be made by the Accounting Firm as part of its determination.
(d) The Closing Consideration, calculated based on: (i) the amount of the Company’s Cash; (ii) the amount of the Company’s Debt; and (iii) the amount of the Company’s Net Asset Balance; (iv) the amount of the Company’s unpaid Transaction Expenses, each as deemed final and binding on the Parties pursuant to this Section 2.8, is referred to herein as the “Final Closing Consideration”.
(e) If the amount of the Final Closing Consideration exceeds the amount of the Closing Consideration calculated based on the Closing Financial Certificate (such excess amountnegative, the “Positive Adjustment”), then then Company shall pay the amount absolute value of such Positive Adjustment will be added to the First Installment Payment.
(f) If the amount of the Closing Consideration calculated based on the Closing Financial Certificate exceeds the amount of the Final Closing Consideration (the “Negative Adjustment”), the amount of such Negative Adjustment shall be recovered by Buyer via offset against the First Installment Payment, and in the event that after such offset a portion of the Negative Adjustment remains unpaid, then Buyer in its sole discretion may offset such remaining unpaid amount against the Second Installment Payment or may require Seller to repay such amount to BuyerPurchaser within five (5) days of the receipt by Purchaser of the True-Up Statement.
(g) Any payment made under this Section 2.8, to the maximum extent permitted by applicable Law, shall be treated for all Tax purposes as an adjustment to the Total Consideration.
Appears in 2 contracts
Sources: Revenue Interests Purchase Agreement, Revenue Interests Purchase Agreement (AxoGen, Inc.)
True-Up. (a) No later than ninety (90) calendar days In the event that the proceeds received by the Purchaser from the sale of all the Conversion Shares do not equal at least 125% of the Stated Value of the Preferred Stock on the first Trading Day after the six month anniversary of the Closing Date, Buyer shall prepare and deliver, or cause to be prepared and delivered, to Seller a certificate Date (the “PostTrue-Closing StatementUp Payment Date”), executed Spin-Off NewCo or, solely in the event that the transactions contemplated by the Merger Agreement have not been consummated, the Company shall pay the Purchaser an executive officer amount in cash (the “True-Up Payment”) equal to the dollar value of Buyer, setting forth Buyer’s good faith calculation of as 125% of the opening of business on the Closing Date: (i) the amount Stated Value of the Company’s Cash; (ii) Preferred Stock less the amount proceeds previously realized by the Purchaser from the sale of the Company’s Debt; Conversion Shares, net of brokerage commissions and any other fees incurred by Purchaser in connection with the sale of any Conversion Shares (iii) the amount of the Company’s “Net Asset Balance; (iv) the amount of the Company’s unpaid Transaction Expenses, together with a calculation of the Closing Consideration based on the foregoing amounts as well as reasonably detailed supporting documentation for such calculationProceeds”).
(b) Seller shall have thirty (30) days following its receipt of the PostThe True-Closing Statement (the “Review Period”) to review the same. On or before the expiration of the Review PeriodUp Payment will be paid by Spin-Off NewCo or, Seller shall deliver to Buyer a written statement accepting or disputing the Post-Closing Statement. In solely in the event that Seller shall dispute the Posttransactions contemplated by the Merger Agreement have not been consummated, the Company, as the case may be, out of either (i) the proceeds from the exercise by Spin-Closing Statement, such statement shall include a reasonably detailed itemization Off NewCo of Seller’s objections and the reasons therefor (such statement, a “Dispute Statement”). Any component existing warrants to purchase shares of the PostCompany’s common stock held by Spin-Closing Statement that is Off NewCo or (ii) the Segregated Cash Account. If any portion of the True-Up Payment has not disputed in a Dispute Statement shall be final and binding been paid by Spin-Off NewCo or the Company, as the case may be, on the Parties and not subject True-Up Payment Date, interest shall accrue on such unpaid amount until such amount is paid in full at a rate equal to appealthe lesser of (i) 18% per annum or (ii) the maximum rate permitted by applicable law. If Seller does not deliver a Dispute Statement to Buyer within Upon payment in full of the Review Period or delivers a statement accepting the PostTrue-Closing Statement, the Post-Closing Statement shall be final and binding on the Parties and not subject to appeal. For clarityUp Payment, any accounts receivable reflected portion of the Segregated Cash Account not used to pay the True-Up Payment will be transferred to the Company or Spin-Off NewCo (in the Closing Financial Certificate event that are not collected within seventy-five (75) calendar days after the Closing Date may be treated transactions contemplated by Buyer as invalid in the Post-Closing Statement and such treatment may not be disputed by Seller in the Dispute StatementMerger Agreement have been consummated).
(c) If Seller delivers a Dispute Statement during The Segregated Cash Account will be maintained until the Review PeriodTrue-Up Payment is paid in full, Buyer and Seller shall promptly meet and attempt in good faith to resolve their differences with respect to the disputed items set forth in the Dispute Statement during the thirty (30) calendar days immediately following Buyer’s receipt of the Dispute Statement, or such longer period as Buyer and Seller may mutually agree (the “Resolution Period”). Any such disputed items provided that are mutually resolved in writing by Buyer and Seller during the Resolution Period shall be final and binding beginning on the Parties and not subject to appeal. If Buyer and Seller do not mutually resolve in writing all such disputed items by the end of the Resolution Period, Buyer and Seller shall submit all items remaining in dispute with respect to the Dispute Statement to an independent accounting firm (in each case, as Buyer and Seller shall reasonably agree) (the “Accounting Firm”) for review and resolution. The Accounting Firm shall act as an expert and not an arbitrator. The Accounting Firm shall determine only those items remaining in dispute between Buyer and Seller, and shall only be permitted or authorized to determine an amount with respect to any such disputed item that is within the range of the amount of such disputed item as proposed by Buyer in the Post-Closing Statement and the amount of such disputed item as proposed by Seller in the Dispute Statement. Each of Buyer and Seller shall (i) enter into a customary engagement letter with the Accounting Firm at the time such dispute is submitted to the Accounting Firm and otherwise cooperate with the Accounting Firm, (ii) have the opportunity to submit a written statement in support of their respective positions with respect to such disputed items, to provide supporting material to the Accounting Firm in defense of their respective positions with respect to such disputed items and to submit a written statement responding to the other Party’s position with respect to such disputed items and (iii) subject to customary confidentiality and indemnity agreements, provide the Accounting Firm with access to their respective books, records, personnel and representatives and such other information as the Accounting Firm may require in order to render its determination. The Accounting Firm shall be instructed to deliver to Buyer and Seller a written determination (such determination to include a worksheet setting forth all material calculations used in arriving at such determination and to be based solely on information provided to the Accounting Firm by Buyer and Seller) of the disputed items within thirty (30) calendar days of receipt of the disputed items, which determination shall be final and binding on the Parties and not subject to appeal. All fees and expenses relating to the work (if any) to be performed by the Accounting Firm will be allocated between Buyer, on the one hand, and Seller (on behalf of the Effective Time Holders), on the other hand, in the same proportion that the aggregate amount of the disputed items so submitted to the Accounting Firm that is unsuccessfully disputed by each such Party (as finally determined by the Accounting Firm) bears to the total disputed amount of such items so submitted. Such allocation calculation shall be made by the Accounting Firm as part of its determination.
(d) The Closing Consideration, calculated based on: (i) the amount of the Company’s Cash; (ii) the amount of the Company’s Debt; and (iii) the amount of the Company’s Net Asset Balance; (iv) the amount of the Company’s unpaid Transaction Expenses, each as deemed final and binding on the Parties pursuant to this Section 2.8, is referred to herein as the “Final Closing Consideration”.
(e) If the amount of the Final Closing Consideration exceeds the amount three month anniversary of the Closing Consideration calculated based Date, and on each monthly anniversary thereafter, Spin-Off NewCo may withdraw funds from the Closing Financial Certificate (such excess amountSegregated Cash Account in an amount equal to $1,250,000 multiplied by a fraction, the “Positive Adjustment”), then then the amount numerator of such Positive Adjustment will be added which is equal to the First Installment Payment.
(f) If Net Proceeds and denominator of which is equal to $375,000. Notwithstanding the amount of foregoing, Spin-Off NewCo may not withdraw funds from the Closing Consideration calculated based on Segregated Cash Account to the Closing Financial Certificate exceeds extent the amount of the Final Closing Consideration (the “Negative Adjustment”), the amount of such Negative Adjustment shall be recovered by Buyer via offset against the First Installment Payment, and in the event that after such offset a portion of the Negative Adjustment remains unpaid, then Buyer Net Proceeds realized by the Purchaser is not in its sole discretion may offset such remaining unpaid amount against the Second Installment Payment or may require Seller to repay such amount to Buyerexcess of $20,000.
(g) Any payment made under this Section 2.8, to the maximum extent permitted by applicable Law, shall be treated for all Tax purposes as an adjustment to the Total Consideration.
Appears in 2 contracts
Sources: Securities Purchase Agreement (Amergent Hospitality Group, Inc), Securities Purchase Agreement (Chanticleer Holdings, Inc.)
True-Up. Subsequent to the Closing, if at any time during the 30-day period following Closing the actual amount of any pro-rated items (per the Proration Schedule, below defined) that were based upon estimations at Closing, or any item omitted therefrom, including without limitation, utilities and other operating expenses with respect to the Property for the month in which the Closing occurs, are determined, the parties agree to adjust the proration of utilities and other operating expenses and, if necessary, to refund or repay such sums as shall be necessary to effect such adjustment. For clarification, this Section 8(g) shall not apply to Taxes, Rents or RUBS which shall be pro-rated and paid under Sections 8(a), 8(b) and 8(f) respectively. Seller shall prepare a proration schedule (the “Proration Schedule”) of the adjustments described in this Section 8 prior to Closing. Such adjustments shall be paid by Buyer to Seller (if the prorations result in a net credit to Seller), or by Seller to Buyer (if the prorations result in a net credit to Buyer, by increasing or reducing the cash to be paid by Buyer at Closing. Buyer or Seller may request that Buyer and Seller undertake to re-adjust any item on the Proration Schedule (or any item omitted therefrom) in accordance with the provisions of this Subsection (g), provided, however, that neither party shall have any obligation to re-adjust any items (a) No later than ninety (90) calendar days after the Closing Date, Buyer shall prepare and deliver, or cause to be prepared and delivered, to Seller a certificate (the “Post-Closing Statement”), executed by an executive officer expiration of Buyer, setting forth Buyer’s good faith calculation of as of the opening of business on the Closing Date: (i) the amount of the Company’s Cash; (ii) the amount of the Company’s Debt; and (iii) the amount of the Company’s Net Asset Balance; (iv) the amount of the Company’s unpaid Transaction Expenses, together with a calculation of the Closing Consideration based on the foregoing amounts as well as reasonably detailed supporting documentation for such calculation.
(b) Seller shall have thirty (30) days following its receipt of the Post-Closing Statement after Closing, or (the “Review Period”b) to review the same. On or before the expiration of the Review Period, Seller shall deliver to Buyer a written statement accepting or disputing the Post-Closing Statement. In the event that Seller shall dispute the Post-Closing Statement, such statement shall include a reasonably detailed itemization of Seller’s objections and the reasons therefor (such statement, a “Dispute Statement”). Any component of the Post-Closing Statement that is not disputed in a Dispute Statement shall be final and binding on the Parties and not subject to appeal. If Seller does not deliver a Dispute Statement to Buyer within the Review Period or delivers a statement accepting the Post-Closing Statement, the Post-Closing Statement shall be final and binding on the Parties and not subject to appeal. For clarity, any accounts receivable reflected in the Closing Financial Certificate that are not collected within seventy-five (75) calendar days after the Closing Date may be treated by Buyer as invalid in the Post-Closing Statement and such treatment may not be disputed by Seller in the Dispute Statement.
(c) If Seller delivers a Dispute Statement during the Review Period, Buyer and Seller shall promptly meet and attempt in good faith to resolve their differences with respect to the disputed items set forth in the Dispute Statement during the thirty (30) calendar days immediately following Buyer’s receipt day period unless such items exceed $5,000.00 in magnitude (either individually or in the aggregate). The provisions of this Subsection (g) shall survive the Closing and delivery of the Dispute Statement, or such longer period as Buyer and Seller may mutually agree (the “Resolution Period”). Any such disputed items that are mutually resolved in writing by Buyer and Seller during the Resolution Period shall be final and binding on the Parties and not subject to appeal. If Buyer and Seller do not mutually resolve in writing all such disputed items by the end of the Resolution Period, Buyer and Seller shall submit all items remaining in dispute with respect to the Dispute Statement to an independent accounting firm (in each case, as Buyer and Seller shall reasonably agree) (the “Accounting Firm”) for review and resolution. The Accounting Firm shall act as an expert and not an arbitrator. The Accounting Firm shall determine only those items remaining in dispute between Buyer and Seller, and shall only be permitted or authorized to determine an amount with respect to any such disputed item that is within the range of the amount of such disputed item as proposed by Buyer in the Post-Closing Statement and the amount of such disputed item as proposed by Seller in the Dispute Statement. Each of Buyer and Seller shall (i) enter into a customary engagement letter with the Accounting Firm at the time such dispute is submitted to the Accounting Firm and otherwise cooperate with the Accounting Firm, (ii) have the opportunity to submit a written statement in support of their respective positions with respect to such disputed items, to provide supporting material to the Accounting Firm in defense of their respective positions with respect to such disputed items and to submit a written statement responding to the other Party’s position with respect to such disputed items and (iii) subject to customary confidentiality and indemnity agreements, provide the Accounting Firm with access to their respective books, records, personnel and representatives and such other information as the Accounting Firm may require in order to render its determination. The Accounting Firm shall be instructed to deliver to Buyer and Seller a written determination (such determination to include a worksheet setting forth all material calculations used in arriving at such determination and to be based solely on information provided to the Accounting Firm by Buyer and Seller) of the disputed items within thirty (30) calendar days of receipt of the disputed items, which determination shall be final and binding on the Parties and not subject to appeal. All fees and expenses relating to the work (if any) to be performed by the Accounting Firm will be allocated between Buyer, on the one hand, and Seller (on behalf of the Effective Time Holders), on the other hand, in the same proportion that the aggregate amount of the disputed items so submitted to the Accounting Firm that is unsuccessfully disputed by each such Party (as finally determined by the Accounting Firm) bears to the total disputed amount of such items so submitted. Such allocation calculation shall be made by the Accounting Firm as part of its determination.
(d) The Closing Consideration, calculated based on: (i) the amount of the Company’s Cash; (ii) the amount of the Company’s Debt; and (iii) the amount of the Company’s Net Asset Balance; (iv) the amount of the Company’s unpaid Transaction Expenses, each as deemed final and binding on the Parties pursuant to this Section 2.8, is referred to herein as the “Final Closing Consideration”.
(e) If the amount of the Final Closing Consideration exceeds the amount of the Closing Consideration calculated based on the Closing Financial Certificate (such excess amount, the “Positive Adjustment”), then then the amount of such Positive Adjustment will be added to the First Installment Payment.
(f) If the amount of the Closing Consideration calculated based on the Closing Financial Certificate exceeds the amount of the Final Closing Consideration (the “Negative Adjustment”), the amount of such Negative Adjustment shall be recovered by Buyer via offset against the First Installment Payment, and in the event that after such offset a portion of the Negative Adjustment remains unpaid, then Buyer in its sole discretion may offset such remaining unpaid amount against the Second Installment Payment or may require Seller to repay such amount Deed to Buyer.
(g) Any payment made under this Section 2.8, to the maximum extent permitted by applicable Law, shall be treated for all Tax purposes as an adjustment to the Total Consideration.
Appears in 2 contracts
Sources: Purchase and Sale Agreement (Resource Real Estate Investors 6 LP), Purchase and Sale Agreement (Resource Real Estate Investors 6 LP)
True-Up. (ai) No later than ninety (90) calendar Within [ * ] days after the Closing Dateend of each Calendar Year during a Royalty Term, Buyer Teva shall prepare perform a “true-up” reconciliation (and deliver, or cause to be prepared and delivered, to Seller shall provide Alexza with a certificate written report of such reconciliation) of the deductions outlined in subsections (the “Post-Closing Statement”iii), executed by (v), and (vi) in the definition of “Net Sales.” The reconciliation shall be based on actual cash paid or credits issued plus an executive officer of Buyerestimate for any remaining liabilities incurred related to the Product, setting forth Buyer’s good faith calculation of as of but not yet paid. If the opening of business on the Closing Date: (i) foregoing reconciliation report shows an underpayment then Teva shall pay the amount of the Company’s Cash; difference to the other Party within [ * ] days after the date of delivery of such report. If the foregoing reconciliation report shows an overpayment then Teva shall offset such overpayment against the next royalty payment due to Alexza pursuant to Section 8.4(a).
(ii) Within [ * ] months after the termination of this Agreement, Teva shall perform a “final true-up” reconciliation (and shall provide Alexza with a written report of such reconciliation) of the items comprising deductions from Net Sales for returns as outlined in subsection (vi) in the definition of Net Sales. The reconciliation shall be based on actual cash paid or credits issued for returns, through the [ * ] month period following the termination or expiration of this Agreement. If the foregoing reconciliation report show either an underpayment of an overpayment between the Parties, the Party owing payment to the other Party shall pay the amount of the Company’s Debt; difference to the other Party within the [ * ] days after the date of delivery of such report. Notwithstanding the foregoing, for each [ * ] the Shelf Life of the Product is extended, the period of time within which the “final true-up” reconciliation will occur will also be extended by [ * ]. [ * ] = Certain confidential information contained in this document, marked by brackets, is filed with the Securities and Exchange Commission pursuant to Rule 24b-2 of the Securities Exchange Act of 1934, as amended.
(iii) the amount of the Company’s Net Asset Balance; (iv) the amount of the Company’s unpaid Transaction Expenses, together with a calculation of the Closing Consideration based on the foregoing amounts as well as reasonably detailed supporting documentation for such calculation.
(b) Seller shall have thirty (30) days following its receipt of the Post-Closing Statement (the “Review Period”) to review the same. On or before the expiration of the Review Period, Seller shall deliver to Buyer a written statement accepting or disputing the Post-Closing Statement. In the event that Seller shall dispute the Postany “true-Closing Statement, such statement shall include a reasonably detailed itemization of Seller’s objections and the reasons therefor (such statement, a “Dispute Statement”). Any component of the Post-Closing Statement that is not disputed in a Dispute Statement shall be final and binding on the Parties and not subject up” reconciliation performed pursuant to appeal. If Seller does not deliver a Dispute Statement to Buyer within the Review Period or delivers a statement accepting the Post-Closing Statement, the Post-Closing Statement shall be final and binding on the Parties and not subject to appeal. For clarity, any accounts receivable reflected in the Closing Financial Certificate that are not collected within seventy-five (75) calendar days after the Closing Date may be treated by Buyer as invalid in the Post-Closing Statement and such treatment may not be disputed by Seller in the Dispute Statement.
(c) If Seller delivers a Dispute Statement during the Review Period, Buyer and Seller shall promptly meet and attempt in good faith to resolve their differences with respect to the disputed items set forth in the Dispute Statement during the thirty (30) calendar days immediately following Buyer’s receipt of the Dispute Statement, or such longer period as Buyer and Seller may mutually agree (the “Resolution Period”). Any such disputed items that are mutually resolved in writing by Buyer and Seller during the Resolution Period shall be final and binding on the Parties and not subject to appeal. If Buyer and Seller do not mutually resolve in writing all such disputed items by the end of the Resolution Period, Buyer and Seller shall submit all items remaining in dispute with respect to the Dispute Statement to an independent accounting firm (in each case, as Buyer and Seller shall reasonably agree) (the “Accounting Firm”) for review and resolution. The Accounting Firm shall act as an expert and not an arbitrator. The Accounting Firm shall determine only those items remaining in dispute between Buyer and Seller, and shall only be permitted or authorized to determine an amount with respect to any such disputed item that is within the range of the amount of such disputed item as proposed by Buyer in the Post-Closing Statement and the amount of such disputed item as proposed by Seller in the Dispute Statement. Each of Buyer and Seller shall (i) enter into a customary engagement letter with the Accounting Firm at the time above, shows an underpayment by Teva for such dispute is submitted to the Accounting Firm and otherwise cooperate with the Accounting Firm, (ii) have the opportunity to submit a written statement Calendar Year in support of their respective positions with respect to such disputed items, to provide supporting material to the Accounting Firm in defense of their respective positions with respect to such disputed items and to submit a written statement responding to the other Party’s position with respect to such disputed items and (iii) subject to customary confidentiality and indemnity agreements, provide the Accounting Firm with access to their respective books, records, personnel and representatives and such other information as the Accounting Firm may require in order to render its determination. The Accounting Firm shall be instructed to deliver to Buyer and Seller a written determination (such determination to include a worksheet setting forth all material calculations used in arriving at such determination and to be based solely on information provided to the Accounting Firm by Buyer and Seller) an amount greater than [ * ] of the disputed items within thirty total amount payable to Alexza for such Calendar Year, then Teva shall pay to Alexza any payment owned pursuant to (30i) calendar days of receipt above, together with interest calculated from the [ * ] day of the disputed items, Calendar Year to which determination shall be final and binding on the Parties and not subject to appeal. All fees and expenses relating to the work (if any) to be performed by the Accounting Firm will be allocated between Buyer, on the one hand, and Seller (on behalf of the Effective Time Holders), on the other handsuch payment applies, in the same proportion that the aggregate amount of the disputed items so submitted to the Accounting Firm that is unsuccessfully disputed by each such Party (as finally determined by the Accounting Firm) bears to the total disputed amount of such items so submitted. Such allocation calculation shall be made by the Accounting Firm as part of its determinationmatter provided in Section 8.14.
(d) The Closing Consideration, calculated based on: (i) the amount of the Company’s Cash; (ii) the amount of the Company’s Debt; and (iii) the amount of the Company’s Net Asset Balance; (iv) the amount of the Company’s unpaid Transaction Expenses, each as deemed final and binding on the Parties pursuant to this Section 2.8, is referred to herein as the “Final Closing Consideration”.
(e) If the amount of the Final Closing Consideration exceeds the amount of the Closing Consideration calculated based on the Closing Financial Certificate (such excess amount, the “Positive Adjustment”), then then the amount of such Positive Adjustment will be added to the First Installment Payment.
(f) If the amount of the Closing Consideration calculated based on the Closing Financial Certificate exceeds the amount of the Final Closing Consideration (the “Negative Adjustment”), the amount of such Negative Adjustment shall be recovered by Buyer via offset against the First Installment Payment, and in the event that after such offset a portion of the Negative Adjustment remains unpaid, then Buyer in its sole discretion may offset such remaining unpaid amount against the Second Installment Payment or may require Seller to repay such amount to Buyer.
(g) Any payment made under this Section 2.8, to the maximum extent permitted by applicable Law, shall be treated for all Tax purposes as an adjustment to the Total Consideration.
Appears in 2 contracts
Sources: License and Supply Agreement (Alexza Pharmaceuticals Inc.), License and Supply Agreement (Alexza Pharmaceuticals Inc.)
True-Up. If the Deficiency Amount is greater than $0, KREF shall reimburse to each Investor signing a Subscription Agreement on or prior to the date hereof (aother than Fund Holdings) No no later than ninety the earlier to occur of June 30, 2016 and the date on which the applicable Investor has funded at least 67% of its Aggregate Investor Commitment (90) calendar days after as defined in the Closing Date, Buyer shall prepare and deliver, or cause to be prepared and delivered, to Seller a certificate (the “Post-Closing Statement”Stockholder’s Subscription Agreement), executed by an executive officer amount equal to the product of Buyer, setting forth Buyer’s good faith calculation of as of the opening of business on the Closing Date: (i) the amount of the Company’s Cash; Per Share Deficiency Amount multiplied by (ii) such Investor’s Subscribed REIT Shares (as defined in the amount of the CompanyStockholder’s Debt; and Subscription Agreement) (iii) the amount of the Company’s Net Asset Balance; (iv) the amount of the Company’s unpaid Transaction Expensessuch amount, together with a calculation of the Closing Consideration based on the foregoing amounts as well as reasonably detailed supporting documentation for such calculation.
(b) Seller shall have thirty (30) days following its receipt of the Post-Closing Statement (the “Review Period”) to review the same. On or before the expiration of the Review Period, Seller shall deliver to Buyer a written statement accepting or disputing the Post-Closing Statement. In the event that Seller shall dispute the Post-Closing Statement, such statement shall include a reasonably detailed itemization of Seller’s objections and the reasons therefor (such statement, a “Dispute StatementReimbursement Amount”). Any component The Reimbursement Amount is to be settled in REIT Shares, the number of the Post-Closing Statement that is not disputed in a Dispute Statement which shall be final and binding on equal to the Parties and not subject quotient (rounded to appeal. If Seller does not deliver a Dispute Statement the nearest whole number) of (x) the Reimbursement Amount, divided by (y) the quotient obtained by dividing (I) the lesser of (A) GAAP book value of KREF as of March 31, 2016, adjusted to Buyer within the Review Period or delivers a statement accepting the Post-Closing Statement, the Post-Closing Statement shall be final and binding on the Parties and not subject to appeal. For clarity, take into account any accounts receivable reflected in the Closing Financial Certificate that are not collected within seventy-five (75) calendar days after the Closing Date may be treated by Buyer as invalid in the Post-Closing Statement and such treatment may not be disputed by Seller in the Dispute Statement.
(c) If Seller delivers a Dispute Statement during the Review Period, Buyer and Seller shall promptly meet and attempt in good faith to resolve their differences dividend with respect to the disputed items set forth in quarter ended March 31, 2016, and (B) the Dispute Statement during Adjusted Book Value as of March 31, 2016 by (II) the thirty (30) calendar days immediately following Buyer’s receipt number of REIT Shares outstanding as of March 31, 2016. For the Dispute Statementavoidance of doubt, or such longer period as Buyer and Seller may mutually agree (the “Resolution Period”). Any such disputed items that are mutually resolved in writing by Buyer and Seller during the Resolution Period there shall be final and binding on the Parties and not subject no issuance of Non-Voting Units to appeal. If Buyer and Seller do not mutually resolve Investors in writing all such disputed items by the end connection with any issuance of the Resolution Period, Buyer and Seller shall submit all items remaining in dispute with respect to the Dispute Statement to an independent accounting firm (in each case, as Buyer and Seller shall reasonably agree) (the “Accounting Firm”) for review and resolution. The Accounting Firm shall act as an expert and not an arbitrator. The Accounting Firm shall determine only those items remaining in dispute between Buyer and Seller, and shall only be permitted or authorized to determine an amount with respect to any such disputed item that is within the range of the amount of such disputed item as proposed by Buyer in the Post-Closing Statement and the amount of such disputed item as proposed by Seller in the Dispute Statement. Each of Buyer and Seller shall (i) enter into a customary engagement letter with the Accounting Firm at the time such dispute is submitted to the Accounting Firm and otherwise cooperate with the Accounting Firm, (ii) have the opportunity to submit a written statement in support of their respective positions with respect to such disputed items, to provide supporting material to the Accounting Firm in defense of their respective positions with respect to such disputed items and to submit a written statement responding to the other Party’s position with respect to such disputed items and (iii) subject to customary confidentiality and indemnity agreements, provide the Accounting Firm with access to their respective books, records, personnel and representatives and such other information as the Accounting Firm may require in order to render its determination. The Accounting Firm shall be instructed to deliver to Buyer and Seller a written determination (such determination to include a worksheet setting forth all material calculations used in arriving at such determination and to be based solely on information provided to the Accounting Firm by Buyer and Seller) of the disputed items within thirty (30) calendar days of receipt of the disputed items, which determination shall be final and binding on the Parties and not subject to appeal. All fees and expenses relating to the work (if any) to be performed by the Accounting Firm will be allocated between Buyer, on the one hand, and Seller (on behalf of the Effective Time Holders), on the other hand, in the same proportion that the aggregate amount of the disputed items so submitted to the Accounting Firm that is unsuccessfully disputed by each such Party (as finally determined by the Accounting Firm) bears to the total disputed amount of such items so submitted. Such allocation calculation shall be made by the Accounting Firm as part of its determination.
(d) The Closing Consideration, calculated based on: (i) the amount of the Company’s Cash; (ii) the amount of the Company’s Debt; and (iii) the amount of the Company’s Net Asset Balance; (iv) the amount of the Company’s unpaid Transaction Expenses, each as deemed final and binding on the Parties REIT Shares pursuant to this Section 2.8Section, is referred to herein as the “Final Closing Consideration”.
(e) If the amount and such Non-Voting Units shall be excluded from this valuation and reimbursement of REIT Shares. An illustrative example of the Final Closing Consideration exceeds the amount of the Closing Consideration calculated based on the Closing Financial Certificate (such excess amount, the “Positive Adjustment”), then then the amount of such Positive Adjustment will be added to the First Installment Payment.
(f) If the amount of the Closing Consideration calculated based on the Closing Financial Certificate exceeds the amount of the Final Closing Consideration (the “Negative Adjustment”), the amount of such Negative Adjustment shall be recovered calculation contemplated by Buyer via offset against the First Installment Payment, and in the event that after such offset a portion of the Negative Adjustment remains unpaid, then Buyer in its sole discretion may offset such remaining unpaid amount against the Second Installment Payment or may require Seller to repay such amount to Buyer.
(g) Any payment made under this Section 2.8, to is attached hereto as Annex A (it being acknowledged and agreed that the maximum extent permitted by applicable Law, shall be treated numbers contained therein are solely for all Tax illustrative purposes as an adjustment to the Total Consideration.and actual numbers may vary). For purposes of this Section 4.06:
Appears in 2 contracts
Sources: Stockholders Agreement (KKR Real Estate Finance Trust Inc.), Stockholders Agreement (KKR Real Estate Finance Trust Inc.)
True-Up. (a) No later than ninety (90) calendar days after the Closing Date, Buyer shall prepare and deliver, or cause to be prepared and delivered, to Seller a certificate (the “Post-Closing Statement”), executed by an executive officer of Buyer, setting forth Buyer’s good faith calculation of as of the opening of business on the Closing Date: (i) Subject to Section 6.5(b), each Ingram Company hereby agrees that, at or immediately prior to ▇▇▇ ▇irst Closing, the Adjustment Amount (as defined below) shall be allocated 23.01% to Industries, 72.84% to Micro and 4.15% to Entertainment. Such allocation shall be made through appropriate adjustments effected by way of dividends or capital contributions to balance (A) the actual amount which each of Industries, Micro and Entertainment and their respective Subsidiaries have contributed to the Adjustment Amount with (B) the respective share of the Company’s Cash; Adjustment Amount to be allocated to each of them pursuant to the foregoing sentence. As used herein, "Adjustment Amount" shall mean the sum of (i) consolidated net income as reported in Industries' unaudited interim financial statements for the period (the "Initial Adjustment Period") commencing January 1, 1996 and ending (x) on the last day of the full accounting month ended immediately prior to the First Closing Date (if the First Closing Date occurs later than the 15th day of the month) or (y) the last day of the second full accounting month ended prior to the First Closing Date (if the First Closing Date occurs on or prior to the 15th day of the month) and (ii) the amount consolidated net income of Industries, as projected by Industries, for the Company’s Debt; and (iii) the amount of the Company’s Net Asset Balance; (iv) the amount of the Company’s unpaid Transaction Expenses, together with a calculation of the Closing Consideration based period commencing on the foregoing amounts as well as reasonably detailed supporting documentation for such calculation.
(b) Seller shall have thirty (30) days first day following its receipt of the Post-Closing Statement (the “Review Period”) to review the same. On or before the expiration of the Review Period, Seller shall deliver to Buyer a written statement accepting or disputing the Post-Closing Statement. In the event that Seller shall dispute the Post-Closing Statement, such statement shall include a reasonably detailed itemization of Seller’s objections and the reasons therefor (such statement, a “Dispute Statement”). Any component of the Post-Closing Statement that is not disputed in a Dispute Statement shall be final and binding on the Parties and not subject to appeal. If Seller does not deliver a Dispute Statement to Buyer within the Review Period or delivers a statement accepting the Post-Closing Statement, the Post-Closing Statement shall be final and binding on the Parties and not subject to appeal. For clarity, any accounts receivable reflected in the Closing Financial Certificate that are not collected within seventy-five (75) calendar days after the Closing Date may be treated by Buyer as invalid in the Post-Closing Statement and such treatment may not be disputed by Seller in the Dispute Statement.
(c) If Seller delivers a Dispute Statement during the Review Period, Buyer and Seller shall promptly meet and attempt in good faith to resolve their differences with respect to the disputed items set forth in the Dispute Statement during the thirty (30) calendar days immediately following Buyer’s receipt of the Dispute Statement, or such longer period as Buyer and Seller may mutually agree (the “Resolution Period”). Any such disputed items that are mutually resolved in writing by Buyer and Seller during the Resolution Period shall be final and binding on the Parties and not subject to appeal. If Buyer and Seller do not mutually resolve in writing all such disputed items by the end of the Resolution Period, Buyer Initial Adjustment Period and Seller shall submit all items remaining in dispute with respect to ending on the Dispute Statement to an independent accounting firm (in each case, as Buyer and Seller shall reasonably agree) (the “Accounting Firm”) for review and resolution. The Accounting Firm shall act as an expert and not an arbitrator. The Accounting Firm shall determine only those items remaining in dispute between Buyer and Seller, and shall only be permitted or authorized to determine an amount with respect to any such disputed item that is within the range last day of the amount fiscal year, assuming for purposes of such disputed item as proposed by Buyer in the Post-Closing Statement and the amount of such disputed item as proposed by Seller in the Dispute Statement. Each of Buyer and Seller shall (i) enter into a customary engagement letter with the Accounting Firm at the time such dispute is submitted to the Accounting Firm and otherwise cooperate with the Accounting Firm, this clause (ii) have that the opportunity First Closing does not occur during such fiscal year; provided that the Adjustment Amount shall be determined without giving effect to submit a written statement (a) any net income or losses related to IMS or IPSI (each, as defined in support the Reorganization Agreement), (b) the after-tax effect of their respective positions with respect to the Industries LIFO provision for such disputed itemsperiod, to provide supporting material (c) any accrual for expenses related to the Accounting Firm in defense of their respective positions with respect to such disputed items and to submit a written statement responding to the other Party’s position with respect to such disputed items and (iii) subject to customary confidentiality and indemnity agreementstransactions contemplated hereby, provide the Accounting Firm with access to their respective books, records, personnel and representatives and such other information as the Accounting Firm may require in order to render its determination. The Accounting Firm shall be instructed to deliver to Buyer and Seller a written determination (such determination to include a worksheet setting forth all material calculations used in arriving at such determination and to be based solely on information provided to the Accounting Firm by Buyer and Seller) of the disputed items within thirty (30) calendar days of receipt of the disputed items, which determination shall be final and binding on the Parties and not subject to appeal. All fees and expenses relating to the work (if any) to be performed by the Accounting Firm will be allocated between BuyerRelated Agreements, on by the one hand, and Seller Reorganization Agreement or by the Ancillary Agreements (on behalf of as defined in the Effective Time HoldersReorganization Agreement), on the other hand, in the same proportion that the aggregate amount of the disputed items so submitted to the Accounting Firm that is unsuccessfully disputed by each such Party (as finally determined by the Accounting Firm) bears to the total disputed amount of such items so submitted. Such allocation calculation shall be made by the Accounting Firm as part of its determination.
(d) The Closing Consideration, calculated based on: (i) the amount of the Company’s Cash; (ii) the amount of the Company’s Debt; and (iii) the amount of the Company’s Net Asset Balance; (iv) the amount of the Company’s unpaid Transaction Expenses, each as deemed final and binding on the Parties pursuant any non-cash charges related to this Section 2.8, is referred to herein as the “Final Closing Consideration”.
Micro's stock option plans or (e) If any expenses referred to in Section 7.12 of this Agreement; provided further that the amount of the Final Closing Consideration exceeds the amount of the Closing Consideration calculated based on the Closing Financial Certificate (such excess amount, the “Positive Adjustment”), then then the amount of such Positive Adjustment will be added to the First Installment Payment.
(f) If the amount of the Closing Consideration calculated based on the Closing Financial Certificate exceeds the amount of the Final Closing Consideration (the “Negative Adjustment”), the amount of such Negative Adjustment Amount shall be recovered increased or decreased by Buyer via offset against such other amounts as the First Installment Payment, and in the event that after such offset a portion of the Negative Adjustment remains unpaid, then Buyer in its sole discretion Ingram Companies may offset such remaining unpaid amount against the Second Installment Payment or may require Seller to repay such amount to Buyeragree.
(g) Any payment made under this Section 2.8, to the maximum extent permitted by applicable Law, shall be treated for all Tax purposes as an adjustment to the Total Consideration.
Appears in 1 contract
True-Up. (a) No later than ninety (90) calendar days after The parties hereto hereby agree that all regularly scheduled payments due and owing by Purchaser to Seller under the Closing Master Lease and the Aircraft Dry Leases during the Escrow Period shall be paid by Purchaser to Seller in accordance with the terms of the Master Lease and the Aircraft Dry Leases, respectively, during the Escrow Period until the Escrow Period Termination Date. Upon the occurrence of the Escrow Period Termination Date, Buyer Purchaser and Seller shall prepare calculate the difference and deliverassociated timing (if any) of (a) the aggregate amount paid by Purchaser to Seller pursuant to and in accordance with the Master Lease and the Aircraft Dry Leases during the Escrow Period and (b) the aggregate amount that would have been paid by the Co-Makers to Seller under the Purchase Money Notes during the Escrow Period (the "Escrow Period Differential") in the same manner set forth on Schedule 2.08(a) attached hereto, and TWC, Seller, WAI or any of their respective Affiliates receiving such Escrow Period Differential shall thereafter immediately apply or cause to be prepared applied the Escrow Period Differential first to accrued but unpaid interest of and delivered, then to Seller a certificate (the “Post-Closing Statement”), executed by an executive officer of Buyer, setting forth Buyer’s good faith calculation of as outstanding principal of the opening of business on the Closing Date: (i) the amount of the Company’s Cash; (ii) the amount of the Company’s Debt; and (iii) the amount of the Company’s Net Asset Balance; (iv) the amount of the Company’s unpaid Transaction Expenses, together with a calculation of the Closing Consideration based on the foregoing amounts Long-Term Note as well as reasonably detailed supporting documentation for such calculationspecifically set forth in Schedule 2.08(a).
(b) If the Aircraft Dry Leases are refinanced at any time during the Escrow Period (the "Aircraft Refinancing"), (i) TWC and Seller shall have thirty on the date of any such Aircraft Refinancing cause WAI to execute and deliver, and WCL shall execute and deliver, the Williams Aircraft Leasing Purchase Agreement and t▇▇ ▇▇▇▇▇ Williams Aircraft Leasing Transfer Documents, (30ii) days following its receipt ▇▇▇▇▇▇▇er and Seller shall calculate in good faith the net cash proceeds of such Aircraft Refinancing (the "Aircraft Refinancing Net Cash Proceeds"), and (iii) TWC, Seller, WAI or any of their respective Affiliates receiving such Aircraft Refinancing Net Cash Proceeds shall immediately thereafter apply or cause to be applied such Aircraft Refinancing Net Cash Proceeds pro rata to the then outstanding principal balances under the Master Lease specified on each of the Post-Closing Statement (the “Review Period”) to review the same. On or before the expiration of the Review Periodthree amortization schedules attached hereto as Schedule 2.08(b)-1, Seller shall deliver to Buyer a written statement accepting or disputing the Post-Closing Statement. In the event that Seller shall dispute the Post-Closing StatementSchedule 2.08(b)-2 and Schedule 2.08(b)-3, such statement shall include a reasonably detailed itemization of Seller’s objections and the reasons therefor (such statement, a “Dispute Statement”). Any component of the Post-Closing Statement that is not disputed in a Dispute Statement shall be final and binding on the Parties and not subject to appeal. If Seller does not deliver a Dispute Statement to Buyer within the Review Period or delivers a statement accepting the Post-Closing Statement, the Post-Closing Statement shall be final and binding on the Parties and not subject to appeal. For clarity, any accounts receivable reflected in the Closing Financial Certificate that are not collected within seventy-five (75) calendar days after the Closing Date may be treated by Buyer as invalid in the Post-Closing Statement and such treatment may not be disputed by Seller in the Dispute Statementrespectively.
(c) If Seller delivers a Dispute Statement the Aircraft Refinancing occurs during the Review PeriodEscrow Period and an Escrow Period Termination Date occurs thereafter, Buyer TWC and Seller shall promptly meet and attempt calculate in good faith to resolve their differences with respect to the disputed items set forth in the Dispute Statement during the thirty (30) calendar days immediately following Buyer’s receipt of the Dispute StatementAircraft Refinancing Net Cash Proceeds and TWC, or such longer period as Buyer and Seller may mutually agree (the “Resolution Period”). Any such disputed items that are mutually resolved in writing by Buyer and Seller during the Resolution Period shall be final and binding on the Parties and not subject to appeal. If Buyer and Seller do not mutually resolve in writing all such disputed items by the end of the Resolution Period, Buyer and Seller shall submit all items remaining in dispute with respect to the Dispute Statement to an independent accounting firm (in each case, as Buyer and Seller shall reasonably agree) (the “Accounting Firm”) for review and resolution. The Accounting Firm shall act as an expert and not an arbitrator. The Accounting Firm shall determine only those items remaining in dispute between Buyer and Seller, and shall only be permitted WAI or authorized to determine an amount with respect to any such disputed item that is within the range of the amount of such disputed item as proposed by Buyer in the Post-Closing Statement and the amount of such disputed item as proposed by Seller in the Dispute Statement. Each of Buyer and Seller shall (i) enter into a customary engagement letter with the Accounting Firm at the time such dispute is submitted to the Accounting Firm and otherwise cooperate with the Accounting Firm, (ii) have the opportunity to submit a written statement in support of their respective positions with respect to Affiliates receiving such disputed items, to provide supporting material to the Accounting Firm in defense of their respective positions with respect to such disputed items and to submit a written statement responding to the other Party’s position with respect to such disputed items and (iii) subject to customary confidentiality and indemnity agreements, provide the Accounting Firm with access to their respective books, records, personnel and representatives and such other information as the Accounting Firm may require in order to render its determination. The Accounting Firm Aircraft Refinancing Net Cash Proceeds shall be instructed to deliver to Buyer and Seller a written determination (such determination to include a worksheet setting forth all material calculations used in arriving at such determination and immediately thereafter apply or cause to be based solely on information provided applied such Aircraft Refinancing Net Cash Proceeds first to the Accounting Firm by Buyer and Seller) of the disputed items within thirty (30) calendar days of receipt of the disputed items, which determination shall be final and binding on the Parties and not subject to appeal. All fees and expenses relating to the work accrued but unpaid interest (if any) of and then to be performed by the Accounting Firm will be allocated between Buyer, on the one hand, and Seller (on behalf outstanding principal of the Effective Time Holders), on the other hand, in the same proportion that the aggregate amount of the disputed items so submitted to the Accounting Firm that is unsuccessfully disputed by each such Party (as finally determined by the Accounting Firm) bears to the total disputed amount of such items so submitted. Such allocation calculation shall be made by the Accounting Firm as part of its determinationLong-Term Note.
(d) The Closing ConsiderationIf the Aircraft Refinancing does not occur during the Escrow Period and an Escrow Period Breakage Date occurs, calculated based on: (i) the amount Master Lease, the Aircraft Dry Leases and the other existing Sale Leaseback Transaction Documents shall continue in full force and effect."
23. Section 3.01 of the Company’s Cash; Agreement is hereby amended by (iia) deleting the amount word "and" set forth at the end of the Company’s Debtlast line of subsection (j) thereof; and (iiib) deleting the amount period in the last line of subsection (k) thereof and substituting in lieu thereof a semi-colon.
24. Section 3.02 of the Company’s Net Asset Balance; Agreement is hereby amended by (iva) deleting the amount word "and" set forth in the last line of the Company’s unpaid Transaction Expenses, each as deemed final and binding on the Parties pursuant to this Section 2.8, is referred to herein as the “Final Closing Consideration”.
(e) If the amount of the Final Closing Consideration exceeds the amount of the Closing Consideration calculated based on the Closing Financial Certificate (such excess amount, the “Positive Adjustment”), then then the amount of such Positive Adjustment will be added to the First Installment Payment.
subsection (f) If thereof; and (b) deleting the amount of the Closing Consideration calculated based on the Closing Financial Certificate exceeds the amount of the Final Closing Consideration (the “Negative Adjustment”), the amount of such Negative Adjustment shall be recovered by Buyer via offset against the First Installment Payment, and period in the event that after such offset a portion last line of the Negative Adjustment remains unpaid, then Buyer in its sole discretion may offset such remaining unpaid amount against the Second Installment Payment or may require Seller to repay such amount to Buyer.
subsection (g) Any payment made under this thereof and substituting in lieu thereof a semi-colon.
25. Article III of the Agreement is hereby amended by amending and restating Section 2.8, 3.05 set forth therein in full to the maximum extent permitted by applicable Law, shall be treated for all Tax purposes read as an adjustment to the Total Consideration.follows:
Appears in 1 contract
Sources: Real Property Purchase and Sale Agreement (Wiltel Communications Group Inc)
True-Up. (ai) No later than ninety If, on the one-year anniversary of the Closing, the Initial Shares do not have an Average Closing Price of at least $2.00 per share, then Buyer shall issue an additional number of shares of Common Stock to Seller as is determined by the following formula: (90900,000 x ($2.00 - the Average Closing Price)) calendar days after / the Average Closing Price (the "Initial True-Up Shares").
(ii) If, on the Indemnification Release Date, the Indemnification Shares do not have an Average Closing Price of at least $2.00 per share, then, on such Indemnification Release Date, Buyer shall prepare and deliver, or cause issue an additional number of shares of Common Stock to Seller as is determined by the following formula: (the number of Indemnification Shares to be prepared and delivered, released pursuant to Seller a certificate the terms of this Agreement x ($2.00 - the Average Closing Price on the Indemnification Release Date)) / the Average Closing Price on the Indemnification Release Date (the “Post"Indemnification True-Closing Statement”Up Shares"), executed by an executive officer of Buyer, setting forth Buyer’s good faith calculation of as of the opening of business on the Closing Date: (i) the amount of the Company’s Cash; (ii) the amount of the Company’s Debt; and .
(iii) If, on the amount date that any of the Company’s Net Asset Balance; (iv) the amount of the Company’s unpaid Transaction Expenses, together with a calculation of the Closing Consideration based on the foregoing amounts as well as reasonably detailed supporting documentation for such calculation.
(b) Seller shall have thirty (30) days following its receipt of the Post-Closing Statement (the “Review Period”) to review the same. On or before the expiration of the Review Period, Seller shall deliver to Buyer a written statement accepting or disputing the Post-Closing Statement. In the event that Seller shall dispute the Post-Closing Statement, such statement shall include a reasonably detailed itemization of Seller’s objections Earnout Shares become due and the reasons therefor (such statement, a “Dispute Statement”). Any component of the Post-Closing Statement that is not disputed in a Dispute Statement shall be final and binding on the Parties and not subject to appeal. If Seller does not deliver a Dispute Statement to Buyer within the Review Period or delivers a statement accepting the Post-Closing Statement, the Post-Closing Statement shall be final and binding on the Parties and not subject to appeal. For clarity, any accounts receivable reflected in the Closing Financial Certificate that are not collected within seventy-five (75) calendar days after the Closing Date may be treated by Buyer as invalid in the Post-Closing Statement and such treatment may not be disputed by Seller in the Dispute Statement.
(c) If Seller delivers a Dispute Statement during the Review Period, Buyer and Seller shall promptly meet and attempt in good faith to resolve their differences with respect to the disputed items set forth in the Dispute Statement during the thirty (30) calendar days immediately following Buyer’s receipt of the Dispute Statement, or such longer period as Buyer and Seller may mutually agree (the “Resolution Period”). Any such disputed items that are mutually resolved in writing by Buyer and Seller during the Resolution Period shall be final and binding on the Parties and not subject to appeal. If Buyer and Seller do not mutually resolve in writing all such disputed items by the end of the Resolution Period, Buyer and Seller shall submit all items remaining in dispute with respect to the Dispute Statement to an independent accounting firm issuable (in each case, as Buyer and Seller shall reasonably agreean "Issue Date") (the “Accounting Firm”) for review and resolution. The Accounting Firm shall act as an expert and not an arbitrator. The Accounting Firm shall determine only those items remaining in dispute between Buyer and to Seller, and shall only be permitted or authorized to determine an amount with respect to any such disputed item that is within the range Earnout Shares do not have an Average Closing Price of the amount of such disputed item as proposed by Buyer in the Post-Closing Statement and the amount of such disputed item as proposed by Seller in the Dispute Statement. Each of Buyer and Seller shall (i) enter into a customary engagement letter with the Accounting Firm at the time such dispute is submitted to the Accounting Firm and otherwise cooperate with the Accounting Firmleast $2.00 per share, (ii) have the opportunity to submit a written statement in support of their respective positions with respect to such disputed items, to provide supporting material to the Accounting Firm in defense of their respective positions with respect to such disputed items and to submit a written statement responding to the other Party’s position with respect to such disputed items and (iii) subject to customary confidentiality and indemnity agreements, provide the Accounting Firm with access to their respective books, records, personnel and representatives and such other information as the Accounting Firm may require in order to render its determination. The Accounting Firm shall be instructed to deliver to Buyer and Seller a written determination (such determination to include a worksheet setting forth all material calculations used in arriving at such determination and to be based solely on information provided to the Accounting Firm by Buyer and Seller) of the disputed items within thirty (30) calendar days of receipt of the disputed items, which determination shall be final and binding on the Parties and not subject to appeal. All fees and expenses relating to the work (if any) to be performed by the Accounting Firm will be allocated between Buyerthen, on the one hand, and such Issue Date Buyer shall issue an additional number of shares of Common Stock to Seller (on behalf of the Effective Time Holders), on the other hand, in the same proportion that the aggregate amount of the disputed items so submitted to the Accounting Firm that as is unsuccessfully disputed by each such Party (as finally determined by the Accounting Firmfollowing formula: (the number of shares earned pursuant to subsection (c) bears to the total disputed amount of such items so submitted. Such allocation calculation shall be made by the Accounting Firm as part of its determination.
or (d) The below (as applicable) x ($2.00 - the Average Closing ConsiderationPrice at such Issue Date)) / the Average Closing Price at such Issue Date (the "Earnout True-Up Shares" and, calculated based on: (i) together with the amount of the Company’s Cash; (ii) the amount of the Company’s Debt; and (iii) the amount of the Company’s Net Asset Balance; (iv) the amount of the Company’s unpaid Transaction Expenses, each as deemed final and binding on the Parties pursuant to this Section 2.8, is referred to herein as the “Final Closing Consideration”.
(e) If the amount of the Final Closing Consideration exceeds the amount of the Closing Consideration calculated based on the Closing Financial Certificate (such excess amountInitial True-Up Shares, the “Positive Adjustment”)Indemnification True-Up Shares, then then the amount of such Positive Adjustment will be added to the First Installment Payment.
(f) If the amount of the Closing Consideration calculated based on the Closing Financial Certificate exceeds the amount of the Final Closing Consideration (the “Negative Adjustment”)collectively, the amount of such Negative Adjustment shall be recovered by Buyer via offset against the First Installment Payment, and in the event that after such offset a portion of the Negative Adjustment remains unpaid, then Buyer in its sole discretion may offset such remaining unpaid amount against the Second Installment Payment or may require Seller to repay such amount to Buyer"True-Up Shares").
(g) Any payment made under this Section 2.8, to the maximum extent permitted by applicable Law, shall be treated for all Tax purposes as an adjustment to the Total Consideration.
Appears in 1 contract
True-Up. (a) No later than ninety (90) calendar days after the Closing Date, Buyer shall prepare and deliver, or cause to be prepared and delivered, to Seller a certificate (the “Post-Closing Statement”), executed by an executive officer of Buyer, setting forth Buyer’s good faith calculation of as of the opening of business on the Closing Date: (i) the amount of the Company’s Cash; (ii) the amount of the Company’s Debt; and (iii) the amount of the Company’s Net Asset Balance; (iv) the amount of the Company’s unpaid Transaction Expenses, together with a The calculation of the Closing Consideration based Purchase Price was based, in part, on backlog associated with the foregoing amounts Supplier Agreements calculated as well set forth on Schedule 1.6 (“Backlog”). Backlog relates to contracts in force as reasonably detailed supporting documentation for such calculation.
of September 1, 2011 representing transactions between energy suppliers and end users of energy (bcustomers) Seller shall have as outlined on Schedule 1.6 related to commodity brokerage assuming end users consume energy at projected levels. Within thirty (30) days following its receipt of the Post-Closing Statement October 31, 2012 (the “Review True Up Date”), Buyer shall prepare and deliver to Seller a final determination of the Backlog as of the True Up Date (“Final Backlog”) and, based thereon, calculate the amount payable, if any, pursuant to this Section 1.6(b) (the “True Up Amount”), accompanied by such schedules as it has prepared to support each such determination. Seller shall be entitled to review any working papers, trial balances and similar materials relating to such statements prepared by or on behalf of Buyer.
(ii) Within thirty (30) days after receipt of such statements and schedules (the “Objection Period”) ), Seller must notify Buyer of any objections to review the same. On or before the expiration Buyer’s determinations of the Review PeriodFinal Backlog and True Up Amount, Seller shall deliver to Buyer a written statement accepting or disputing providing in reasonable detail the Post-Closing Statementbasis for such objections. In the event that Seller shall dispute does not timely or properly notify Buyer within the Post-Closing Statement, Objection Period that Seller has any objections to such statement shall include a reasonably detailed itemization of Sellerstatements or Buyer’s objections and the reasons therefor (such statement, a “Dispute Statement”). Any component calculation of the Post-Closing Statement that is not disputed in a Dispute Statement final True Up Amount, then the Final Backlog and True Up Amount shall be final and binding on hereunder. In the Parties and not subject to appeal. If event that Seller does not deliver a Dispute Statement to Buyer notify Buyer, within the Review Period or delivers a statement accepting the Post-Closing Statement, the Post-Closing Statement shall be final and binding on the Parties and not subject to appeal. For clarity, any accounts receivable reflected in the Closing Financial Certificate that are not collected within seventy-five (75) calendar days after the Closing Date may be treated by Buyer as invalid in the Post-Closing Statement and such treatment may not be disputed by Seller in the Dispute Statement.
(c) If Seller delivers a Dispute Statement during the Review Objection Period, that Seller has any such objection, then Buyer and Seller shall promptly meet and attempt in good faith to resolve their differences with respect to the disputed items set forth in the Dispute Statement during the thirty (30) calendar days immediately following Buyer’s receipt of the Dispute Statement, or such longer period as Buyer and Seller may mutually agree (the “Resolution Period”). Any such disputed items that are mutually resolved in writing by Buyer and Seller during the Resolution Period shall be final and binding on the Parties and not subject to appeal. If Buyer and Seller do not mutually resolve in writing all such disputed items by the end of the Resolution Period, Buyer and Seller shall submit all items remaining in dispute with respect to the Dispute Statement to an independent accounting firm (in each case, as Buyer and Seller shall reasonably agree) (the “Accounting Firm”) for review and resolution. The Accounting Firm shall act as an expert and not an arbitrator. The Accounting Firm shall determine only those items remaining in dispute between Buyer and Seller, and shall only be permitted or authorized to determine an amount with respect to any such disputed item that is within the range of the amount of such disputed item as proposed by Buyer in the Post-Closing Statement and the amount of such disputed item as proposed by Seller in the Dispute Statement. Each of Buyer and Seller shall (i) enter into a customary engagement letter with the Accounting Firm at the time such dispute is submitted to the Accounting Firm and otherwise cooperate with the Accounting Firm, (ii) have the opportunity to submit a written statement in support of their respective positions with respect to such disputed items, . In the event Seller and Buyer are unable to provide supporting material to the Accounting Firm in defense of their respective positions with respect to such disputed items and to submit a written statement responding to the other Party’s position with respect to such disputed items and (iii) subject to customary confidentiality and indemnity agreements, provide the Accounting Firm with access to their respective books, records, personnel and representatives and such other information as the Accounting Firm may require in order to render its determination. The Accounting Firm shall be instructed to deliver to Buyer and Seller a written determination (such determination to include a worksheet setting forth all material calculations used in arriving at such determination and to be based solely on information provided to the Accounting Firm by Buyer and Seller) of resolve the disputed items within thirty (30) calendar days after receipt by Buyer of receipt Seller’s notice of dispute, the parties’ respective independent certified public accountants shall attempt to resolve the disputed items. In the event that such accounting firms are unable to resolve such disputed items within sixty (60) days of Seller’s notice of dispute, which such disputed items shall be referred to such independent accounting firm as mutually agreed upon by Buyer and Seller or, in the absence of such agreement such independent accounting firm as Seller and Buyer’s respective accounting firms jointly appoint to finally resolve such disputed items (provided that such firm has not within the preceding thirty-six (36) months had a, and does not have a current or prospective, business relationship with Buyer or Seller, or any of their respective Affiliates. The determination of such accounting firm shall be made as promptly as possible and shall be final and binding on upon the Parties parties absent demonstrable error acknowledged by such accounting firm. Seller and not subject Buyer each shall be permitted to appealsubmit such data and information to such accounting firm as such party deems appropriate. All The parties shall share responsibility for the out-of-pocket expenses and fees incurred in connection with resolving such disputed items as follows: (A) if the accounting firm resolves the objections substantially in favor of Buyer’s position, Seller will be responsible for all of the fees and expenses relating of the accounting firm, (B) if the accounting firm resolves the objections substantially in favor of Seller’s position, Buyer will be responsible for all of the fees and expenses of the accounting firm; and (C) if the accounting firm neither resolves the objections in favor of Buyer’s position nor resolves the objections in favor of the Seller’s position, the fees and expenses of the accounting firm shall be allocated between, and paid fifty percent (50%) by Buyer and fifty percent (50%) by Seller.
(iii) If the actual Backlog received by the Buyer for the period beginning on October 1, 2011 and ending on September 30, 2012 is at least 95% but not more than 105% of the expected Backlog as reflected in Schedule 1.6, then the $75,000 deposited in escrow pursuant to Section 1.4(c)(2)(iii) will be released to Seller. For example: total Backlog from October 1, 2011 through September 30, 2012 is represented to be $1,483,545. If actual cash received from the customers listed on Schedule 1.6 for contracts in force as of the Closing Date is equal to or greater than $1,409,367 but less than $1,557,722, then the $75,000 deposited in escrow would be released to Seller. If actual Backlog received is less than 95% of expected Backlog, then the Seller will be responsible to refund the difference between the actual percentage achieved and 95% to the work (if any) Buyer. Any amounts to be performed refunded by Seller to Buyer will first be deducted from the Accounting Firm $75,000 amount in escrow. To the extent the amount to be refunded to Buyer is greater than the amount in escrow, Seller will make an additional payment to Buyer in the amount greater than $75,000. If actual Backlog received is greater than 105% of expected Backlog, then the Buyer will remit the difference to Seller for the amount actual backlog received exceeds 105%. For example, if actual Backlog received is $1,261,013, or 85% of expected Backlog, then Seller would owe the Buyer $148,354, representing the difference between the amount actually collected and $1,409,367. This amount due would first be allocated between Buyersatisfied out of the amount in escrow of $75,000, on with the one handSeller making a payment of $73,354 to Buyer for the incremental difference. If actual Backlog received is $1,631,900, or 110% of expected Backlog, then Buyer would remit to Seller $74,178, and Seller (on behalf of the Effective Time Holders), on the other hand, full amount in the same proportion that the aggregate amount of the disputed items so submitted escrow would be released to the Accounting Firm that is unsuccessfully disputed by each such Party (as finally determined by the Accounting Firm) bears to the total disputed amount of such items so submittedSeller. Such allocation calculation shall All calculations and amounts due hereunder will be made by the Accounting Firm as part of its determinationNovember 30, 2012.
(d) The Closing Consideration, calculated based on: (i) the amount of the Company’s Cash; (ii) the amount of the Company’s Debt; and (iii) the amount of the Company’s Net Asset Balance; (iv) the amount of the Company’s unpaid Transaction Expenses, each as deemed final and binding on the Parties pursuant to this Section 2.8, is referred to herein as the “Final Closing Consideration”.
(e) If the amount of the Final Closing Consideration exceeds the amount of the Closing Consideration calculated based on the Closing Financial Certificate (such excess amount, the “Positive Adjustment”), then then the amount of such Positive Adjustment will be added to the First Installment Payment.
(f) If the amount of the Closing Consideration calculated based on the Closing Financial Certificate exceeds the amount of the Final Closing Consideration (the “Negative Adjustment”), the amount of such Negative Adjustment shall be recovered by Buyer via offset against the First Installment Payment, and in the event that after such offset a portion of the Negative Adjustment remains unpaid, then Buyer in its sole discretion may offset such remaining unpaid amount against the Second Installment Payment or may require Seller to repay such amount to Buyer.
(g) Any payment made under this Section 2.8, to the maximum extent permitted by applicable Law, shall be treated for all Tax purposes as an adjustment to the Total Consideration.
Appears in 1 contract
Sources: Contract Purchase Agreement (World Energy Solutions, Inc.)
True-Up. (a) No later than ninety (90) calendar days after Upon the Closing Date, Buyer shall prepare and deliver, or cause to be prepared and delivered, to Seller a certificate (the “Post-Closing Statement”), executed by an executive officer of Buyer, setting forth Buyer’s good faith calculation of as determination of the opening Final Purchase Price of business on the Closing Date: applicable Company Group:
(i) the amount of the Company’s Cash; (ii) the amount of the Company’s Debt; and (iii) the amount of the Company’s Net Asset Balance; (iv) the amount of the Company’s unpaid Transaction Expenses, together with a calculation of the Closing Consideration based on the foregoing amounts as well as reasonably detailed supporting documentation for such calculation.
(b) Seller shall have thirty (30) days following its receipt of the Post-Closing Statement (the “Review Period”) to review the same. On or before the expiration of the Review Period, Seller shall deliver to Buyer a written statement accepting or disputing the Post-Closing Statement. In the event that Seller shall dispute the Post-Closing Statement, such statement shall include a reasonably detailed itemization of Seller’s objections and the reasons therefor (such statement, a “Dispute Statement”). Any component of the Post-Closing Statement that is not disputed in a Dispute Statement shall be final and binding on the Parties and not subject to appeal. If Seller does not deliver a Dispute Statement to Buyer within the Review Period or delivers a statement accepting the Post-Closing Statement, the Post-Closing Statement shall be final and binding on the Parties and not subject to appeal. For clarity, any accounts receivable reflected in the Closing Financial Certificate that are not collected within seventy-five (75) calendar days after the Closing Date may be treated by Buyer as invalid in the Post-Closing Statement and such treatment may not be disputed by Seller in the Dispute Statement.
(c) If Seller delivers a Dispute Statement during the Review Period, Buyer and Seller shall promptly meet and attempt in good faith to resolve their differences with respect to the disputed items set forth in the Dispute Statement during the thirty (30) calendar days immediately following Buyer’s receipt of the Dispute Statement, or such longer period as Buyer and Seller may mutually agree (the “Resolution Period”). Any such disputed items that are mutually resolved in writing by Buyer and Seller during the Resolution Period shall be final and binding on the Parties and not subject to appeal. If Buyer and Seller do not mutually resolve in writing all such disputed items by the end of the Resolution Period, Buyer and Seller shall submit all items remaining in dispute with respect to the Dispute Statement to an independent accounting firm (in each case, as Buyer and Seller shall reasonably agree) (the “Accounting Firm”) for review and resolution. The Accounting Firm shall act as an expert and not an arbitrator. The Accounting Firm shall determine only those items remaining in dispute between Buyer and Seller, and shall only be permitted or authorized to determine an amount with respect to any such disputed item that is within the range of the amount of such disputed item as proposed by Buyer in the Post-Closing Statement and the amount of such disputed item as proposed by Seller in the Dispute Statement. Each of Buyer and Seller shall (i) enter into a customary engagement letter with the Accounting Firm at the time such dispute is submitted to the Accounting Firm and otherwise cooperate with the Accounting Firm, (ii) have the opportunity to submit a written statement in support of their respective positions with respect to such disputed items, to provide supporting material to the Accounting Firm in defense of their respective positions with respect to such disputed items and to submit a written statement responding to the other Party’s position with respect to such disputed items and (iii) subject to customary confidentiality and indemnity agreements, provide the Accounting Firm with access to their respective books, records, personnel and representatives and such other information as the Accounting Firm may require in order to render its determination. The Accounting Firm shall be instructed to deliver to Buyer and Seller a written determination (such determination to include a worksheet setting forth all material calculations used in arriving at such determination and to be based solely on information provided to the Accounting Firm by Buyer and Seller) of the disputed items within thirty (30) calendar days of receipt of the disputed items, which determination shall be final and binding on the Parties and not subject to appeal. All fees and expenses relating to the work (if any) to be performed by the Accounting Firm will be allocated between Buyer, on the one hand, and Seller (on behalf of the Effective Time Holders), on the other hand, in the same proportion that the aggregate amount of the disputed items so submitted to the Accounting Firm that is unsuccessfully disputed by each such Party (as finally determined by the Accounting Firm) bears to the total disputed amount of such items so submitted. Such allocation calculation shall be made by the Accounting Firm as part of its determination.
(d) The Closing Consideration, calculated based on: (i) the amount of the Company’s Cash; (ii) the amount of the Company’s Debt; and (iii) the amount of the Company’s Net Asset Balance; (iv) the amount of the Company’s unpaid Transaction Expenses, each as deemed final and binding on the Parties pursuant to this Section 2.8, is referred to herein as the “Final Closing Consideration”.
(e) If the amount of the Final Closing Consideration exceeds Purchase Price for a Company Group is greater than the Estimated Olinda Purchase Price or the Estimated Providence Purchase Price (as applicable), the Buyer will pay to the Sellers’ Representative (for the benefit of the shareholders of Trust I or the Providence Sellers (as applicable)), the amount by which such Final Purchase Price is greater than the Estimated Olinda A-18 Purchase Price or the Estimated Providence Purchase Price (as applicable). In determining any such amounts payable by Buyer pursuant to this Section 2.7(a)(i), such determination shall take into consideration the Olinda Specified Assets Payment and the Providence Specified Assets Payment paid by Buyer at Closing and the Providence Working Capital Surplus or Olinda Working Capital Surplus, if any, not paid by Buyer at Closing and contemplated to be paid at this time as set forth in Section 2.1(b)(iii). If a payment is required to be made by the Buyer to the Sellers’ Representative pursuant to this Section 2.7(a)(i), within twelve (12) Business Days after such determination, the Buyer shall pay such amount to the Sellers’ Representative (for the benefit of the Closing Consideration calculated based shareholders of Trust I or the Providence Sellers (as applicable)) by wire transfer of immediately available funds in such manner as is notified to the Buyer by the Sellers’ Representative in writing no later than two (2) Business Days prior to the date of payment. Any payment made by the Buyer pursuant to this Section 2.7(a)(i) shall be made together with interest on such amount accruing at the Interest Rate from the Closing Financial Certificate (such excess amountDate to, but excluding, the “Positive Adjustment”), then then the amount date of such Positive Adjustment will be added to the First Installment Paymentpayment.
(fii) If the amount of the Closing Consideration calculated based Final Purchase Price for a Company Group is less than the Estimated Olinda Purchase Price or the Estimated Providence Purchase Price (as applicable), on the Closing Financial Certificate exceeds fifth (5th) Business Day after such determination, the Buyer may retain the amount of by which such Final Purchase Price is less than the Final Closing Consideration Estimated Olinda Purchase Price or the Estimated Providence Purchase Price (as applicable) for such Company Group, from the “Negative Adjustment”Olinda Indemnity Holdback or the Providence Indemnity Holdback (as applicable), . In no event shall Trust I be required to make any payment pursuant to this Section 2.7(a)(ii) other than from the amount of such Negative Adjustment Olinda Indemnity Holdback. In no event shall the Providence Sellers be recovered by Buyer via offset against required to make any payment pursuant to this Section 2.7(a)(ii) other than from the First Installment Payment, and in the event that after such offset a portion of the Negative Adjustment remains unpaid, then Buyer in its sole discretion may offset such remaining unpaid amount against the Second Installment Payment or may require Seller to repay such amount to Buyer.
(g) Providence Indemnity Holdback. Any payment made under by a Seller pursuant to this Section 2.8, to the maximum extent permitted by applicable Law, 2.7(a)(ii) shall be treated for all Tax purposes made together with interest on such amount accruing at the Interest Rate from the Closing Date to, but excluding, the date of such payment. In determining any such amounts payable to Buyer pursuant to this Section 2.7(a)(ii), such determination shall take into consideration the Olinda Specified Assets Payment and the Providence Specified Assets Payment paid by Buyer at Closing and the Providence Working Capital Surplus or Olinda Working Capital Surplus, if any, not paid by Buyer at Closing and contemplated to be paid by Buyer at this time as an adjustment to the Total Considerationset forth in Section 2.1(b)(iii).
Appears in 1 contract
Sources: Interest Purchase Agreement (Ridgewood Electric Power Trust Iii)
True-Up. (a) No later than ninety (90) calendar days after Pursuant to this Section 2.1.1, the Closing Date, Buyer shall prepare and deliver, or cause to be prepared and delivered, to Seller a certificate (the “Post-Closing Statement”), executed by an executive officer of Buyer, setting forth Buyer’s parties will use good faith calculation of as of efforts to agree upon a mutually satisfactory Updated Pro Forma, estimating the opening of business on the Closing Date: amount by which (i) the amount “Present Value” (as hereinafter defined) of all monetary obligations that are anticipated to be paid or incurred by Buyer or its Affiliates, on or after the Company’s Cash; Closing Date with respect to the Project Assets (other than Excluded Assets), including any improvement and development costs, real property taxes, permit and Entitlement fees, all interest under the loans made by CF Capital and CFC to Buyer and its Affiliates, development fees under the Development Agreement, any payments under Section 3.1, environmental expenditures, insurance costs, operating and capital expenses, and contributions to the Alameda (Bayport) Venture (collectively, the “Pro Forma Cash Flow Uses”), is less than (ii) the amount Present Value of all revenues that are expected to be received by Buyer on or after the Closing Date in respect of the Company’s Debt; and Project Asset (iii) other than Excluded Assets), including revenues from the amount sale of the Company’s Net Asset Balance; Project Assets (ivother than Excluded Assets), rent, amounts received under any Reimbursement and Payment Rights, payments under any promissory notes, and any distributions from the Alameda (Bayport) the amount of the Company’s unpaid Transaction ExpensesVenture (collectively, together with a calculation of the Closing Consideration based on the foregoing amounts as well as reasonably detailed supporting documentation for such calculation.
(b) Seller shall have thirty (30) days following its receipt of the Post-Closing Statement (the “Review PeriodPro Forma Cash Flow Sources”) to review the same). On or before the expiration of the Review Perioddate this Agreement is fully executed and delivered, Seller Sellers shall deliver to Buyer a written statement accepting good faith proposed pro forma (the “Seller Proposed Pro Forma”), indicating (i) the estimated amounts of the Pro Forma Cash Flow Uses and the Pro Forma Cash Flow Sources, (ii) the estimated timing of any payments of the Pro Forma Cash Flow Uses and the estimated timing of any receipts of Pro Forma Cash Flow Sources, (iii) any adjustments to be made to the Purchase Price as a result of any Excluded Assets, or disputing portion thereof, and (iv) the Post-Closing StatementPresent Value calculation described above, calculated as of October 31, 2004 (the “Excluded Asset Adjustments”). In the event that Buyer shall disagree with the Seller shall dispute the Post-Closing Statement, such statement shall include a reasonably detailed itemization of Seller’s objections and the reasons therefor (such statement, a “Dispute Statement”). Any component of the Post-Closing Statement that is not disputed in a Dispute Statement shall be final and binding on the Parties and not subject to appeal. If Seller does not deliver a Dispute Statement to Buyer within the Review Period or delivers a statement accepting the Post-Closing Statement, the Post-Closing Statement shall be final and binding on the Parties and not subject to appeal. For clarity, any accounts receivable reflected in the Closing Financial Certificate that are not collected within seventy-five (75) calendar days after the Closing Date may be treated by Buyer as invalid in the Post-Closing Statement and such treatment may not be disputed by Seller in the Dispute Statement.
(c) If Seller delivers a Dispute Statement during the Review PeriodProposed Pro Forma, Buyer and Seller shall promptly meet and attempt negotiate in good faith during the period between the date of this Agreement and the Closing Date to resolve their differences with respect any discrepancies and to the disputed items set forth in the Dispute Statement during the thirty (30) calendar days immediately following Buyer’s receipt of the Dispute Statement, or such longer period as Buyer and Seller may mutually attempt to agree upon a mutually-acceptable revision (the “Resolution PeriodUpdated Pro Forma”). Any such disputed items that are mutually resolved in writing by Buyer and Seller during the Resolution Period shall be final and binding on the Parties and not subject to appeal. If Buyer and Seller do not mutually resolve in writing all such disputed items by the end of the Resolution Period, Buyer and Seller shall submit all items remaining in dispute with respect ) to the Dispute Statement to an independent accounting firm (in each case, as Buyer and Seller shall reasonably agree) (the “Accounting Firm”) for review and resolutionProposed Pro Forma. The Accounting Firm shall act as an expert and not an arbitrator. The Accounting Firm shall determine only those items remaining in dispute between Buyer and Seller, and shall only be permitted or authorized to determine an amount with respect to any such disputed item that It is within the range of the amount of such disputed item as proposed by Buyer in the Post-Closing Statement and the amount of such disputed item as proposed by Seller in the Dispute Statement. Each of Buyer and Seller shall (i) enter into a customary engagement letter with the Accounting Firm at the time such dispute is submitted to the Accounting Firm and otherwise cooperate with the Accounting Firm, (ii) have the opportunity to submit a written statement in support of their respective positions with respect to such disputed items, to provide supporting material to the Accounting Firm in defense of their respective positions with respect to such disputed items and to submit a written statement responding to the other Party’s position with respect to such disputed items and (iii) subject to customary confidentiality and indemnity agreements, provide the Accounting Firm with access to their respective books, records, personnel and representatives and such other information as the Accounting Firm may require in order to render its determination. The Accounting Firm shall be instructed to deliver to Buyer and Seller a written determination (such determination to include a worksheet setting forth all material calculations used in arriving at such determination and to be based solely on information provided to the Accounting Firm by Buyer and Seller) of the disputed items within thirty (30) calendar days of receipt of the disputed items, which determination shall be final and binding on the Parties and not subject to appeal. All fees and expenses relating to the work (if any) to be performed by the Accounting Firm will be allocated between Buyer, on the one hand, and Seller (on behalf of the Effective Time Holders), on the other hand, in the same proportion anticipated that the aggregate amount of parties will finalize the disputed items so submitted to the Accounting Firm that is unsuccessfully disputed by each such Party (as finally determined by the Accounting Firm) bears to the total disputed amount of such items so submitted. Such allocation calculation shall be made by the Accounting Firm as part of its determination.
(d) The Closing Consideration, calculated based on: (i) the amount of the Company’s Cash; (ii) the amount of the Company’s Debt; and (iii) the amount of the Company’s Net Asset Balance; (iv) the amount of the Company’s unpaid Transaction Expenses, each as deemed final and binding on the Parties pursuant to this Section 2.8, is referred to herein as the “Final Closing Consideration”.
(e) If the amount of the Final Closing Consideration exceeds the amount of the Closing Consideration calculated based Updated Proforma on the Closing Financial Certificate (such excess amountDate, at which time both parties will initial the “Positive Adjustment”), then then the amount of such Positive Adjustment will be added to the First Installment Payment.
(f) If the amount first page of the Closing Consideration calculated based on the Closing Financial Certificate exceeds the amount of the Final Closing Consideration same (the “Negative Adjustment”which may be done by fax), the amount of such Negative Adjustment shall be recovered by Buyer via offset against the First Installment Payment, and in . In the event that after such offset a portion of the Negative Adjustment remains unpaid, then Buyer parties agree in its sole discretion may offset such remaining unpaid amount against the Second Installment Payment or may require Seller to repay such amount to Buyer.
(g) Any payment made under this Section 2.8, to the maximum extent permitted by applicable Law, shall be treated for all Tax purposes as an adjustment to the Total Consideration.writing on an
Appears in 1 contract
True-Up. (a) No later than ninety (90) calendar days after the Closing Date, Buyer shall prepare and deliver, or cause to be prepared and delivered, to Seller a certificate (the “Post-Closing Statement”), executed by an executive officer of Buyer, setting forth Buyer’s good faith calculation of as of the opening of business on the Closing Date: (i) For those fully engineered, developed and platted lots within the amount Real Property, the “True Up” shall be equal to the sum of twenty percent (20%) of the Sales Price paid by a third-party homebuyer to Purchaser (or Company’s Cash; successors-in-interest, as the case may be) at the time of closing the purchase and sale to said third party homebuyer minus the prorata share of the Adjusted Land Basis determined on a per-community, per-lot basis at Closing. Notwithstanding anything to the contrary herein, Seller’s rights under this Section 2.03(c) shall at all times be expressly subject and subordinate to the rights and mortgage lien of any lender providing the Company or Purchaser financing for the construction of a home on any lot owned by the Company. The provisions of this Section 2.03(c) shall survive Closing.
(ii) For those undeveloped (or in-the-process of being developed) lands lying within the amount Real Property, the “True-Up” shall be equal to the sum of twelve percent (12%) of the Sales Price paid by a third-party homebuyer to Purchaser (or Company’s Debt; successors-in-interest, as the case may be) at the time of closing the purchase and sale to said third party homebuyer minus the prorata share of the Adjusted Land Basis determined on a per-community, per-lot basis at Closing.
(iii) the amount of the Company’s Net Asset Balance; At Closing, (iv) the amount of the Company’s unpaid Transaction Expenses, together with a calculation of the Closing Consideration based on the foregoing amounts as well as reasonably detailed supporting documentation for such calculation.
(b1) Seller shall have thirty (30) days following its receipt provide Purchaser with an exhibit delineating which portions of the PostReal Property are fully engineered, developed and platted and which portions are undeveloped (or in-Closing Statement the-process of being developed), and (2) the Parties agree to record a “Review Period”) to review the same. On or before the expiration Memorandum of the Review Period, Seller shall deliver to Buyer a written statement accepting or disputing the PostTrue-Closing Statement. In the event that Seller shall dispute the PostUp Payment” placing third-Closing Statement, such statement shall include a reasonably detailed itemization parties on notice of Seller’s objections right to receive the True-Up upon the third-party sales to homebuyers, which memorandum shall be in such form and content to be mutually agreed upon by the reasons therefor Parties consistent with those certain existing “Memorandum of Additional Purchase Price” recorded against portions of the Real Property lying within Laureate Park (such statementas, a “Dispute Statement”). Any component the provision for subordination in favor of the Post-Closing Statement that is not disputed in a Dispute Statement shall be final and binding on the Parties and not Purchaser’s lenders subject to appeal. If Seller does not deliver a Dispute Statement to Buyer within the Review Period or delivers a statement accepting the Post-Closing Statement, the Post-Closing Statement shall be final and binding on the Parties and not subject to appeal. For clarity, any accounts receivable reflected in the Closing Financial Certificate that are not collected within seventy-five (75) calendar days after the Closing Date may be treated by Buyer as invalid in the Post-Closing Statement and such treatment may not be disputed by Seller in the Dispute Statementcustomary limitations).
(c) If Seller delivers a Dispute Statement during the Review Period, Buyer and Seller shall promptly meet and attempt in good faith to resolve their differences with respect to the disputed items set forth in the Dispute Statement during the thirty (30) calendar days immediately following Buyer’s receipt of the Dispute Statement, or such longer period as Buyer and Seller may mutually agree (the “Resolution Period”). Any such disputed items that are mutually resolved in writing by Buyer and Seller during the Resolution Period shall be final and binding on the Parties and not subject to appeal. If Buyer and Seller do not mutually resolve in writing all such disputed items by the end of the Resolution Period, Buyer and Seller shall submit all items remaining in dispute with respect to the Dispute Statement to an independent accounting firm (in each case, as Buyer and Seller shall reasonably agree) (the “Accounting Firm”) for review and resolution. The Accounting Firm shall act as an expert and not an arbitrator. The Accounting Firm shall determine only those items remaining in dispute between Buyer and Seller, and shall only be permitted or authorized to determine an amount with respect to any such disputed item that is within the range of the amount of such disputed item as proposed by Buyer in the Post-Closing Statement and the amount of such disputed item as proposed by Seller in the Dispute Statement. Each of Buyer and Seller shall (i) enter into a customary engagement letter with the Accounting Firm at the time such dispute is submitted to the Accounting Firm and otherwise cooperate with the Accounting Firm, (ii) have the opportunity to submit a written statement in support of their respective positions with respect to such disputed items, to provide supporting material to the Accounting Firm in defense of their respective positions with respect to such disputed items and to submit a written statement responding to the other Party’s position with respect to such disputed items and (iii) subject to customary confidentiality and indemnity agreements, provide the Accounting Firm with access to their respective books, records, personnel and representatives and such other information as the Accounting Firm may require in order to render its determination. The Accounting Firm shall be instructed to deliver to Buyer and Seller a written determination (such determination to include a worksheet setting forth all material calculations used in arriving at such determination and to be based solely on information provided to the Accounting Firm by Buyer and Seller) of the disputed items within thirty (30) calendar days of receipt of the disputed items, which determination shall be final and binding on the Parties and not subject to appeal. All fees and expenses relating to the work (if any) to be performed by the Accounting Firm will be allocated between Buyer, on the one hand, and Seller (on behalf of the Effective Time Holders), on the other hand, in the same proportion that the aggregate amount of the disputed items so submitted to the Accounting Firm that is unsuccessfully disputed by each such Party (as finally determined by the Accounting Firm) bears to the total disputed amount of such items so submitted. Such allocation calculation shall be made by the Accounting Firm as part of its determination.
(d) The Closing Consideration, calculated based on: (i) the amount of the Company’s Cash; (ii) the amount of the Company’s Debt; and (iii) the amount of the Company’s Net Asset Balance; (iv) the amount of the Company’s unpaid Transaction Expenses, each as deemed final and binding on the Parties pursuant to this Section 2.8, is referred to herein as the “Final Closing Consideration”.
(e) If the amount of the Final Closing Consideration exceeds the amount of the Closing Consideration calculated based on the Closing Financial Certificate (such excess amount, the “Positive Adjustment”), then then the amount of such Positive Adjustment will be added to the First Installment Payment.
(f) If the amount of the Closing Consideration calculated based on the Closing Financial Certificate exceeds the amount of the Final Closing Consideration (the “Negative Adjustment”), the amount of such Negative Adjustment shall be recovered by Buyer via offset against the First Installment Payment, and in the event that after such offset a portion of the Negative Adjustment remains unpaid, then Buyer in its sole discretion may offset such remaining unpaid amount against the Second Installment Payment or may require Seller to repay such amount to Buyer.
(g) Any payment made under this Section 2.8, to the maximum extent permitted by applicable Law, shall be treated for all Tax purposes as an adjustment to the Total Consideration.
Appears in 1 contract
Sources: Membership Interest Purchase Agreement (Dream Finders Homes, Inc.)
True-Up. (a) No later than ninety (90) calendar days after The parties hereto hereby agree that all regularly scheduled payments due and owing by Purchaser to Seller under the Closing Master Lease and the Aircraft Dry Leases during the Escrow Period shall be paid by Purchaser to Seller in accordance with the terms of the Master Lease and the Aircraft Dry Leases, respectively, during the Escrow Period until the Escrow Period Termination Date. Upon the occurrence of the Escrow Period Termination Date, Buyer Purchaser and Seller shall prepare calculate the difference and deliverassociated timing (if any) of (a) the aggregate amount paid by Purchaser to Seller pursuant to and in accordance with the Master Lease and the Aircraft Dry Leases during the Escrow Period and (b) the aggregate amount that would have been paid by the Co-Makers to Seller under the Purchase Money Notes during the Escrow Period (the "Escrow Period Differential") in the same manner set forth on Schedule 2.08(a) attached hereto, and TWC, Seller, WAI or any of their respective Affiliates receiving such Escrow Period Differential shall thereafter immediately apply or cause to be prepared applied the Escrow Period Differential first to accrued but unpaid interest of and delivered, then to Seller a certificate (the “Post-Closing Statement”), executed by an executive officer of Buyer, setting forth Buyer’s good faith calculation of as outstanding principal of the opening of business on the Closing Date: (i) the amount of the Company’s Cash; (ii) the amount of the Company’s Debt; and (iii) the amount of the Company’s Net Asset Balance; (iv) the amount of the Company’s unpaid Transaction Expenses, together with a calculation of the Closing Consideration based on the foregoing amounts Long-Term Note as well as reasonably detailed supporting documentation for such calculationspecifically set forth in Schedule 2.08(a).
(b) If the Aircraft Dry Leases are refinanced at any time during the Escrow Period (the "Aircraft Refinancing"), (i) TWC and Seller shall have thirty on the date of any such Aircraft Refinancing cause WAI to execute and deliver, and WCL shall execute and deliver, the ▇▇▇▇▇▇▇▇ Aircraft Leasing Purchase Agreement and the other ▇▇▇▇▇▇▇▇ Aircraft Leasing Transfer Documents, (30ii) days following its receipt Purchaser and Seller shall calculate in good faith the net cash proceeds of such Aircraft Refinancing (the "Aircraft Refinancing Net Cash Proceeds"), and (iii) TWC, Seller, WAI or any of their respective Affiliates receiving such Aircraft Refinancing Net Cash Proceeds shall immediately thereafter apply or cause to be applied such Aircraft Refinancing Net Cash Proceeds pro rata to the then outstanding principal balances under the Master Lease specified on each of the Post-Closing Statement (the “Review Period”) to review the same. On or before the expiration of the Review Periodthree amortization schedules attached hereto as Schedule 2.08(b)-1, Seller shall deliver to Buyer a written statement accepting or disputing the Post-Closing Statement. In the event that Seller shall dispute the Post-Closing StatementSchedule 2.08(b)-2 and Schedule 2.08(b)-3, such statement shall include a reasonably detailed itemization of Seller’s objections and the reasons therefor (such statement, a “Dispute Statement”). Any component of the Post-Closing Statement that is not disputed in a Dispute Statement shall be final and binding on the Parties and not subject to appeal. If Seller does not deliver a Dispute Statement to Buyer within the Review Period or delivers a statement accepting the Post-Closing Statement, the Post-Closing Statement shall be final and binding on the Parties and not subject to appeal. For clarity, any accounts receivable reflected in the Closing Financial Certificate that are not collected within seventy-five (75) calendar days after the Closing Date may be treated by Buyer as invalid in the Post-Closing Statement and such treatment may not be disputed by Seller in the Dispute Statementrespectively.
(c) If Seller delivers a Dispute Statement the Aircraft Refinancing occurs during the Review PeriodEscrow Period and an Escrow Period Termination Date occurs thereafter, Buyer TWC and Seller shall promptly meet and attempt calculate in good faith to resolve their differences with respect to the disputed items set forth in the Dispute Statement during the thirty (30) calendar days immediately following Buyer’s receipt of the Dispute StatementAircraft Refinancing Net Cash Proceeds and TWC, or such longer period as Buyer and Seller may mutually agree (the “Resolution Period”). Any such disputed items that are mutually resolved in writing by Buyer and Seller during the Resolution Period shall be final and binding on the Parties and not subject to appeal. If Buyer and Seller do not mutually resolve in writing all such disputed items by the end of the Resolution Period, Buyer and Seller shall submit all items remaining in dispute with respect to the Dispute Statement to an independent accounting firm (in each case, as Buyer and Seller shall reasonably agree) (the “Accounting Firm”) for review and resolution. The Accounting Firm shall act as an expert and not an arbitrator. The Accounting Firm shall determine only those items remaining in dispute between Buyer and Seller, and shall only be permitted WAI or authorized to determine an amount with respect to any such disputed item that is within the range of the amount of such disputed item as proposed by Buyer in the Post-Closing Statement and the amount of such disputed item as proposed by Seller in the Dispute Statement. Each of Buyer and Seller shall (i) enter into a customary engagement letter with the Accounting Firm at the time such dispute is submitted to the Accounting Firm and otherwise cooperate with the Accounting Firm, (ii) have the opportunity to submit a written statement in support of their respective positions with respect to Affiliates receiving such disputed items, to provide supporting material to the Accounting Firm in defense of their respective positions with respect to such disputed items and to submit a written statement responding to the other Party’s position with respect to such disputed items and (iii) subject to customary confidentiality and indemnity agreements, provide the Accounting Firm with access to their respective books, records, personnel and representatives and such other information as the Accounting Firm may require in order to render its determination. The Accounting Firm Aircraft Refinancing Net Cash Proceeds shall be instructed to deliver to Buyer and Seller a written determination (such determination to include a worksheet setting forth all material calculations used in arriving at such determination and immediately thereafter apply or cause to be based solely on information provided applied such Aircraft Refinancing Net Cash Proceeds first to the Accounting Firm by Buyer and Seller) of the disputed items within thirty (30) calendar days of receipt of the disputed items, which determination shall be final and binding on the Parties and not subject to appeal. All fees and expenses relating to the work accrued but unpaid interest (if any) of and then to be performed by the Accounting Firm will be allocated between Buyer, on the one hand, and Seller (on behalf outstanding principal of the Effective Time Holders), on the other hand, in the same proportion that the aggregate amount of the disputed items so submitted to the Accounting Firm that is unsuccessfully disputed by each such Party (as finally determined by the Accounting Firm) bears to the total disputed amount of such items so submitted. Such allocation calculation shall be made by the Accounting Firm as part of its determinationLong-Term Note.
(d) The Closing ConsiderationIf the Aircraft Refinancing does not occur during the Escrow Period and an Escrow Period Breakage Date occurs, calculated based on: (i) the amount Master Lease, the Aircraft Dry Leases and the other existing Sale Leaseback Transaction Documents shall continue in full force and effect."
23. Section 3.01 of the Company’s Cash; Agreement is hereby amended by (iia) deleting the amount word "and" set forth at the end of the Company’s Debtlast line of subsection (j) thereof; and (iiib) deleting the amount of the Company’s Net Asset Balance; (iv) the amount of the Company’s unpaid Transaction Expenses, each as deemed final and binding on the Parties pursuant to this Section 2.8, is referred to herein as the “Final Closing Consideration”.
(e) If the amount of the Final Closing Consideration exceeds the amount of the Closing Consideration calculated based on the Closing Financial Certificate (such excess amount, the “Positive Adjustment”), then then the amount of such Positive Adjustment will be added to the First Installment Payment.
(f) If the amount of the Closing Consideration calculated based on the Closing Financial Certificate exceeds the amount of the Final Closing Consideration (the “Negative Adjustment”), the amount of such Negative Adjustment shall be recovered by Buyer via offset against the First Installment Payment, and period in the event that after such offset last line of subsection (k) thereof and substituting in lieu thereof a portion of the Negative Adjustment remains unpaid, then Buyer in its sole discretion may offset such remaining unpaid amount against the Second Installment Payment or may require Seller to repay such amount to Buyersemi-colon.
(g) Any payment made under this Section 2.8, to the maximum extent permitted by applicable Law, shall be treated for all Tax purposes as an adjustment to the Total Consideration.
Appears in 1 contract
Sources: Real Property Purchase and Sale Agreement (Williams Companies Inc)
True-Up. If, on the date that is the six-month anniversary of the date of the date of this Amendment (a) No later than ninety (90) calendar days after the Closing “True-Up Date, Buyer shall prepare and deliver, or cause to be prepared and delivered, to Seller a certificate (the “Post-Closing Statement”"), executed the volume weighted average price (as reported by an executive officer Quotestream TM, a service of Buyer, setting forth Buyer’s good faith calculation of as of the opening of business on the Closing Date: (iQuotemedia. Inc.) the amount of the Company’s Cash; common stock (iithe "Common Stock") on the amount of day immediately preceding the True-Up D▇▇▇ (the “Subsequent Share Price"), as reported on the Company’s Debt; Principal Market, is less than the closing price of the Company‘s common stock on the date of this Amendment, then the Company shall, within three (3) trading days of Buyer’s provision of written notice in the form attached hereto as Exhibit B, issue and deliver to the Buyer an additional number of duly and validly issued, fully paid and non-assessable shares of Common Stock equal to (iiiX) the amount quotient of $25,000 divided by the Company’s Net Asset Balance; Subsequent Share Price. multiplied by 1.5. less (ivY) the amount of the Company’s unpaid Transaction Expenses, together with a calculation of the Closing Consideration based on the foregoing amounts as well as reasonably detailed supporting documentation for such calculation.
(b) Seller shall have thirty (30) days following its receipt of the Post-Closing Statement (the “Review Period”) to review the same. On or before the expiration of the Review Period, Seller shall deliver to Buyer a written statement accepting or disputing the Post-Closing Statement. In the event that Seller shall dispute the Post-Closing Statement, such statement shall include a reasonably detailed itemization of Seller’s objections and the reasons therefor (such statement, a “Dispute Statement”)Extension Shares. Any component additional shares of the Post-Closing Statement that is not disputed in a Dispute Statement shall be final and binding on the Parties and not subject to appeal. If Seller does not deliver a Dispute Statement to Buyer within the Review Period or delivers a statement accepting the Post-Closing Statement, the Post-Closing Statement shall be final and binding on the Parties and not subject to appeal. For clarity, any accounts receivable reflected in the Closing Financial Certificate that are not collected within seventy-five (75) calendar days after the Closing Date may be treated by Buyer as invalid in the Post-Closing Statement and such treatment may not be disputed by Seller in the Dispute Statement.
(c) If Seller delivers a Dispute Statement during the Review Period, Buyer and Seller shall promptly meet and attempt in good faith to resolve their differences with respect to the disputed items set forth in the Dispute Statement during the thirty (30) calendar days immediately following Buyer’s receipt of the Dispute Statement, or such longer period as Buyer and Seller may mutually agree (the “Resolution Period”). Any such disputed items that are mutually resolved in writing by Buyer and Seller during the Resolution Period shall be final and binding on the Parties and not subject to appeal. If Buyer and Seller do not mutually resolve in writing all such disputed items by the end of the Resolution Period, Buyer and Seller shall submit all items remaining in dispute with respect to the Dispute Statement to an independent accounting firm (in each case, as Buyer and Seller shall reasonably agree) (the “Accounting Firm”) for review and resolution. The Accounting Firm shall act as an expert and not an arbitrator. The Accounting Firm shall determine only those items remaining in dispute between Buyer and Seller, and shall only be permitted or authorized to determine an amount with respect to any such disputed item that is within the range of the amount of such disputed item as proposed by Buyer in the Post-Closing Statement and the amount of such disputed item as proposed by Seller in the Dispute Statement. Each of Buyer and Seller shall (i) enter into a customary engagement letter with the Accounting Firm at the time such dispute is submitted to the Accounting Firm and otherwise cooperate with the Accounting Firm, (ii) have the opportunity to submit a written statement in support of their respective positions with respect to such disputed items, to provide supporting material to the Accounting Firm in defense of their respective positions with respect to such disputed items and to submit a written statement responding to the other Party’s position with respect to such disputed items and (iii) subject to customary confidentiality and indemnity agreements, provide the Accounting Firm with access to their respective books, records, personnel and representatives and such other information as the Accounting Firm may require in order to render its determination. The Accounting Firm shall be instructed to deliver to Buyer and Seller a written determination (such determination to include a worksheet setting forth all material calculations used in arriving at such determination and to be based solely on information provided to the Accounting Firm by Buyer and Seller) of the disputed items within thirty (30) calendar days of receipt of the disputed items, which determination shall be final and binding on the Parties and not subject to appeal. All fees and expenses relating to the work (if any) to be performed by the Accounting Firm will be allocated between Buyer, on the one hand, and Seller (on behalf of the Effective Time Holders), on the other hand, in the same proportion that the aggregate amount of the disputed items so submitted to the Accounting Firm that is unsuccessfully disputed by each such Party (as finally determined by the Accounting Firm) bears to the total disputed amount of such items so submitted. Such allocation calculation shall be made by the Accounting Firm as part of its determination.
(d) The Closing Consideration, calculated based on: (i) the amount of the Company’s Cash; (ii) the amount of the Company’s Debt; and (iii) the amount of the Company’s Net Asset Balance; (iv) the amount of the Company’s unpaid Transaction Expenses, each as deemed final and binding on the Parties Common Stock issuable pursuant to this Section 2.8, is True-Up and referred to herein as “Additional shares." The Additional Shares, if required to be issued pursuant to this Amendment, shall be issued as provided in this Amendment, provided, however, that in no event shall the Buyer be entitled to receive shares of common stock in excess of the amount that would result in beneficial ownership by the Buyer and its affiliates of 9.99% of the outstanding shares of Common Stock at that time. For purposes of the proviso to the immediately preceding sentence, beneficial ownership shall be determined in accordance with Section 13(d) of the Securities Exchange Act of 1934, as amended (the “Final Closing Consideration”.
(e) If the amount of the Final Closing Consideration exceeds the amount of the Closing Consideration calculated based on the Closing Financial Certificate (such excess amount, the “Positive AdjustmentExchange Act”), then and Regulations 13D-G thereunder. Accordingly, the Additional Shares, if required to be issued pursuant to this amendment, shall be issued in accordance with the beneficial ownership limitations contained herein, and in successive tranches (each an “Additional Tranche”) if the issuance of one tranche would result in the Buyer's beneficial ownership of more than 9.99% of the outstanding shares of Common Stock at that time. The Company shall issue each respective Additional Tranche of the Additional Shares, if required under this Amendment, within two (2) Trading Days of the request by Buyer, subject to the beneficial ownership limitations contained herein. If the Company fails to issue the Additional Shams or any Additional Tranche within the time frame specified in this Amendment, then the amount of such Positive Adjustment will Additional Shares in which Buyer is entitled shall automatically be added multiplied by two. The Company shall at all times reserve slums of its Common Stock for Buyer in an amount equal to 400% multiplied by (X) the First Installment Payment.
(f) If quotient of $25,000 divided by the amount lowest traded price of the Closing Consideration calculated based on Common Stock during the Closing Financial Certificate exceeds five Trading Days immediately preceding the amount respective date of calculation multiplied by 1.5, less (Y) the Final Closing Consideration (the “Negative Adjustment”), the amount of such Negative Adjustment shall be recovered by Buyer via offset against the First Installment Payment, and in the event that after such offset a portion of the Negative Adjustment remains unpaid, then Buyer in its sole discretion may offset such remaining unpaid amount against the Second Installment Payment or may require Seller to repay such amount to BuyerExtension Shares.
(g) Any payment made under this Section 2.8, to the maximum extent permitted by applicable Law, shall be treated for all Tax purposes as an adjustment to the Total Consideration.
Appears in 1 contract
True-Up. (a) No later than ninety (90) calendar days after On or prior to June 30, 2026, the Closing Date, Buyer Company shall prepare and deliver, or cause deliver to be prepared UTG and delivered, to Seller PLBY a certificate closing statement (the “Post-Closing Statement”), executed by an executive officer of Buyer, setting ) that sets forth Buyer’s good faith calculation of as of the opening of business on the Closing Date: (i) the amount of Company Assets and the Company’s Cash; Company Liabilities, (ii) the amount of Company Pre-Closing Assets and the Company’s Debt; Company Pre-Closing Liabilities, and (iii) the amount Adjustment Amount, in each case as of the Company’s Net Asset Balance; (iv) the amount of the Company’s unpaid Transaction Expenses, together Initial Closing Date. The Final Closing Statement shall be prepared in good faith and consistent with a calculation of the Closing Consideration based on the foregoing amounts as well as reasonably detailed supporting documentation for such calculationthis Agreement.
(b) Seller shall have thirty (30) days following its Following UTG’s receipt of the Post-Closing Statement and until the calculations are finally determined pursuant to this Clause 4.6, UTG and its representatives and agents shall be permitted to review the Company’s (and to the extent necessary, PLBY Parent and/or PLBY’s) books and records used by the Company in its preparation of the Closing Statement and determination of the calculations. The Closing Statement shall become final and binding upon the parties 30 days following UTG’s receipt thereof, unless UTG gives written notice of its disagreement (“Notice of Disagreement”) to the Company and PLBY prior to such date. If a timely Notice of Disagreement is received by the Company and PLBY, then the Closing Statement (the “Review Period”as revised in accordance with clause (i) to review the same. On or before the expiration of the Review Period, Seller (ii) below) shall deliver to Buyer a written statement accepting or disputing the Post-Closing Statement. In the event that Seller shall dispute the Post-Closing Statement, such statement shall include a reasonably detailed itemization of Seller’s objections and the reasons therefor (such statement, a “Dispute Statement”). Any component of the Post-Closing Statement that is not disputed in a Dispute Statement shall be become final and binding upon the parties on the Parties and not subject earliest of (i) the date the parties hereto resolve in writing any differences they have with respect to appealthe matters specified in the Notice of Disagreement or (ii) the date all matters in dispute are finally resolved in writing by the Accounting Firm (as defined below). If Seller does not deliver During the 30 days following delivery of a Dispute Statement to Buyer within the Review Period or delivers a statement accepting the Post-Closing StatementNotice of Disagreement, the Post-Closing Statement Company, PLBY and UTG shall be final and binding on the Parties and not subject to appeal. For clarity, any accounts receivable reflected in the Closing Financial Certificate that are not collected within seventy-five (75) calendar days after the Closing Date may be treated by Buyer as invalid in the Post-Closing Statement and such treatment may not be disputed by Seller in the Dispute Statement.
(c) If Seller delivers a Dispute Statement during the Review Period, Buyer and Seller shall promptly meet and attempt seek in good faith to resolve their in writing any differences which they may have with respect to the disputed items set forth matters specified in the Dispute Statement during the thirty (30) calendar days immediately following Buyer’s receipt Notice of the Dispute Statement, or such longer period as Buyer and Seller may mutually agree (the “Resolution Period”)Disagreement. Any such disputed items that are mutually resolved in writing by Buyer and Seller during the Resolution Period shall be final and binding on the Parties and not subject to appeal. If Buyer and Seller do not mutually resolve in writing all such disputed items by At the end of the Resolution Periodsuch 30-day period, Buyer UTG and Seller PLBY shall submit all items remaining in dispute with respect to the Dispute Statement to an independent a mutually agreed upon accounting firm (in each case, as Buyer and Seller shall reasonably agree) (the “Accounting Firm”) for review and resolution. The resolution of all matters (but only such matters) which remain in dispute, and the Accounting Firm shall act as an expert make a final determination of the calculations in accordance with the guidelines and not an arbitratorprocedures set forth in this Agreement. The Accounting Firm shall determine only those items remaining in dispute between Buyer and SellerCompany, PLBY, and shall only be permitted or authorized to determine an amount with respect to any such disputed item that is within the range of the amount of such disputed item as proposed by Buyer in the Post-Closing Statement and the amount of such disputed item as proposed by Seller in the Dispute Statement. Each of Buyer and Seller shall (i) enter into a customary engagement letter with the Accounting Firm at the time such dispute is submitted UTG will provide reasonable cooperation to the Accounting Firm during the term of its engagement. The Accounting Firm’s determination of the calculations shall be based solely on written presentations submitted by the Company, PLBY, and otherwise cooperate UTG which are in accordance with the Accounting Firmguidelines and procedures (including the definitions) set forth in this Agreement (i.e., (ii) have not on the opportunity to submit a written statement in support basis of their respective positions with respect to such disputed items, to provide supporting material to an independent review). The Closing Statement shall become final and binding on the parties on the date the Accounting Firm delivers its final resolution in defense of their respective positions with respect to such disputed items and to submit a written statement responding writing to the other Party’s position with respect to such disputed items and parties (iii) subject to customary confidentiality and indemnity agreements, provide which the Accounting Firm with access to their respective books, records, personnel and representatives and such other information as the Accounting Firm may require in order to render its determination. The Accounting Firm shall be instructed to deliver to Buyer not more than 30 days following submission of such disputed matters). The fees and Seller a written determination (such determination to include a worksheet setting forth all material calculations used in arriving at such determination and to be based solely on information provided to expenses of the Accounting Firm by Buyer and Seller) of the disputed items within thirty (30) calendar days of receipt of the disputed items, which determination shall be final and binding on the Parties and not subject to appeal. All fees and expenses relating to the work (if any) to be performed borne by the Accounting Firm will be allocated between BuyerCompany. The Closing Statement, on the one hand, and Seller (on behalf of the Effective Time Holders), on the other hand, in the same proportion that the aggregate amount of the disputed items so submitted to the Accounting Firm that is unsuccessfully disputed by each such Party (as finally determined by the Accounting Firm) bears to the total disputed amount of such items so submitted. Such allocation calculation shall be made by the Accounting Firm as part of its determination.
(d) The Closing Consideration, calculated based on: (i) the amount of the Company’s Cash; (ii) the amount of the Company’s Debt; and (iii) the amount of the Company’s Net Asset Balance; (iv) the amount of the Company’s unpaid Transaction Expenses, each as deemed final and binding on the Parties pursuant to in accordance with this Section 2.8Clause 4.6, is referred to herein as the “Final Closing ConsiderationStatement.”.
(ec) If the amount Adjustment Amount as set forth in the Final Closing Statement is a positive number, the Company shall pay to PLBY within 30 days of the finalization of the Final Closing Consideration exceeds Statement, an amount equal to the amount Adjustment Amount by wire transfer, in immediately available funds to an account designated by PLBY in writing in advance. If the Adjustment Amount as set forth in the Final Closing Statement is a negative number, PLBY shall pay, within 30 days of the Closing Consideration calculated based on the Closing Financial Certificate (such excess amount, the “Positive Adjustment”), then then the amount of such Positive Adjustment will be added to the First Installment Payment.
(f) If the amount of the Closing Consideration calculated based on the Closing Financial Certificate exceeds the amount finalization of the Final Closing Consideration (Statement, to the “Negative Adjustment”)Company an amount equal to the absolute value of the Adjustment Amount, and, such payment shall be in immediately available funds to an account designated by the Company in writing in advance. In the event the Adjustment Amount as set forth in the Final Closing Statement is a negative number and PLBY fails to make the payment required by it within such 30-day period, the amount of Company may set off such Negative Adjustment shall be recovered by Buyer via offset against the First Installment Payment, and in the event that after such offset a portion of the Negative Adjustment remains unpaid, then Buyer in its sole discretion may offset such remaining unpaid amount against the Second Installment Payment or may require Seller to repay such amount to Buyernext applicable payment of the Minimum Distribution Amount (as defined in the Shareholders Agreement).
(gd) Any payment made under For purposes of this Section 2.8Clause 4.6, “Adjustment Amount” means an amount equal to the maximum extent permitted by applicable Law, shall be treated for all Tax purposes Company Pre-Closing Assets as an adjustment to of the Total ConsiderationInitial Closing Date less the Company Pre-Closing Liabilities as of Initial Closing Date.
Appears in 1 contract
True-Up. (a) No If any of the items described in this Article 6 hereof cannot be apportioned at the Closing because of the unavailability of information as to the amounts which are to be apportioned or otherwise, such items shall be prorated on the basis of the parties’ reasonable estimates of such amounts, and shall be the subject of a final proration no later than ninety six (906) calendar days months after the Closing Date. NSA shall promptly notify the Contributor Representative when it becomes aware that any such estimated amount has been ascertained. Once all revenue and expense amounts have been ascertained as of the Closing Date, Buyer NSA shall prepare prepare, and delivercertify as correct, or cause a final proration statement which shall be subject to approval by the Contributor Representative. Upon such acceptance and approval of any final proration statement submitted by NSA, such statement shall be conclusively deemed to be prepared accurate and deliveredfinal. If any of the items described in this Article 6 hereof are incorrectly apportioned at Closing or subsequent thereto, such items shall be apportioned or reapportioned, as the case may be, as soon as practicable after the date such error is discovered, and the proper party shall be promptly reimbursed. Any amounts owed by a party to Seller a certificate another party based on post-Closing prorations required under this Article 6 (the “Post-Closing StatementNet Adjustment”) shall be resolved as follows:
(a) If the Net Adjustment is payable by the Contributor, the Contributor shall surrender to NSA a number of [Class A NSA Units][NSA Partnership Units (comprising Class A NSA Units and/or Class B NSA Units, as applicable as determined by NSA), executed by an executive officer of Buyer, setting forth Buyer’s good faith calculation of as of ] (rounded to the opening of business on the Closing Date: nearest whole number) equal to (i) the amount of the Company’s Cash; Net Adjustment divided by (ii) the amount of the Company’s Debt; and (iii) the amount of the Company’s Net Asset Balance; (iv) the amount of the Company’s unpaid Transaction Expenses, together with a calculation of the Closing Consideration based on the foregoing amounts as well as reasonably detailed supporting documentation for such calculation.
(b) Seller shall have thirty (30) days following its receipt of the Post-Closing Statement (the “Review Period”) to review the same. On or before the expiration of the Review Period, Seller shall deliver to Buyer a written statement accepting or disputing the Post-Closing Statement. In the event that Seller shall dispute the Post-Closing Statement, such statement shall include a reasonably detailed itemization of Seller’s objections and the reasons therefor (such statement, a “Dispute Statement”). Any component of the Post-Closing Statement that is not disputed in a Dispute Statement shall be final and binding on the Parties and not subject to appeal[$ ]. If Seller does not deliver a Dispute Statement to Buyer within the Review Period or delivers a statement accepting the Post-Closing Statement, the Post-Closing Statement shall be final and binding on the Parties and not subject to appeal. For clarity, any accounts receivable reflected in the Closing Financial Certificate that are not collected within seventy-five (75) calendar days after the Closing Date may be treated by Buyer as invalid in the Post-Closing Statement and such treatment may not be disputed by Seller in the Dispute Statement.
(c) If Seller delivers a Dispute Statement during the Review Period, Buyer and Seller shall promptly meet and attempt in good faith to resolve their differences with respect Net Adjustment is payable to the disputed items set forth in the Dispute Statement during the thirty (30) calendar days immediately following Buyer’s receipt of the Dispute StatementContributor, or such longer period as Buyer and Seller may mutually agree (the “Resolution Period”). Any such disputed items that are mutually resolved in writing by Buyer and Seller during the Resolution Period NSA shall be final and binding on the Parties and not subject to appeal. If Buyer and Seller do not mutually resolve in writing all such disputed items by the end of the Resolution Period, Buyer and Seller shall submit all items remaining in dispute with respect issue to the Dispute Statement to an independent accounting firm Contributor a number of additional [Class A NSA Units][NSA Partnership Units (in each casecomprising Class A NSA Units and/or Class B NSA Units, as Buyer and Seller shall reasonably agree) applicable as determined by NSA)] (the “Accounting Firm”) for review and resolution. The Accounting Firm shall act as an expert and not an arbitrator. The Accounting Firm shall determine only those items remaining in dispute between Buyer and Seller, and shall only be permitted or authorized to determine an amount with respect to any such disputed item that is within the range of the amount of such disputed item as proposed by Buyer in the Post-Closing Statement and the amount of such disputed item as proposed by Seller in the Dispute Statement. Each of Buyer and Seller shall (i) enter into a customary engagement letter with the Accounting Firm at the time such dispute is submitted rounded to the Accounting Firm and otherwise cooperate with the Accounting Firm, (iinearest whole number) have the opportunity equal to submit a written statement in support of their respective positions with respect to such disputed items, to provide supporting material to the Accounting Firm in defense of their respective positions with respect to such disputed items and to submit a written statement responding to the other Party’s position with respect to such disputed items and (iii) subject to customary confidentiality and indemnity agreements, provide the Accounting Firm with access to their respective books, records, personnel and representatives and such other information as the Accounting Firm may require in order to render its determination. The Accounting Firm shall be instructed to deliver to Buyer and Seller a written determination (such determination to include a worksheet setting forth all material calculations used in arriving at such determination and to be based solely on information provided to the Accounting Firm by Buyer and Seller) of the disputed items within thirty (30) calendar days of receipt of the disputed items, which determination shall be final and binding on the Parties and not subject to appeal. All fees and expenses relating to the work (if any) to be performed by the Accounting Firm will be allocated between Buyer, on the one hand, and Seller (on behalf of the Effective Time Holders), on the other hand, in the same proportion that the aggregate amount of the disputed items so submitted to the Accounting Firm that is unsuccessfully disputed by each such Party (as finally determined by the Accounting Firm) bears to the total disputed amount of such items so submitted. Such allocation calculation shall be made by the Accounting Firm as part of its determination.
(d) The Closing Consideration, calculated based on: (i) the amount of the Company’s Cash; Net Adjustment divided by (ii) the amount of the Company’s Debt; and (iii) the amount of the Company’s Net Asset Balance; (iv) the amount of the Company’s unpaid Transaction Expenses, each as deemed final and binding on the Parties pursuant to this Section 2.8, is referred to herein as the “Final Closing Consideration”[$ ].
(e) If the amount of the Final Closing Consideration exceeds the amount of the Closing Consideration calculated based on the Closing Financial Certificate (such excess amount, the “Positive Adjustment”), then then the amount of such Positive Adjustment will be added to the First Installment Payment.
(f) If the amount of the Closing Consideration calculated based on the Closing Financial Certificate exceeds the amount of the Final Closing Consideration (the “Negative Adjustment”), the amount of such Negative Adjustment shall be recovered by Buyer via offset against the First Installment Payment, and in the event that after such offset a portion of the Negative Adjustment remains unpaid, then Buyer in its sole discretion may offset such remaining unpaid amount against the Second Installment Payment or may require Seller to repay such amount to Buyer.
(g) Any payment made under this Section 2.8, to the maximum extent permitted by applicable Law, shall be treated for all Tax purposes as an adjustment to the Total Consideration.
Appears in 1 contract
Sources: Contribution Agreement (National Storage Affiliates Trust)
True-Up. (ai) No later than ninety (90) calendar Within [†] days after the Closing Dateend of each Year during a Royalty Term, Buyer Ivax shall prepare perform a “true-up” reconciliation (and deliver, or cause to be prepared and delivered, to Seller shall provide Xenon with a certificate written report of such reconciliation) of the deductions outlined in subsections (the “Post-Closing Statement”iii), executed by (iv), and (v) in the definition of “Net Sales.” The reconciliation shall be based on actual cash paid or credits issued plus an executive officer of Buyerestimate for any remaining liabilities incurred related to the Product, setting forth Buyer’s good faith calculation of as of but not yet paid. If the opening of business on foregoing reconciliation report shows either an underpayment or an overpayment between the Closing Date: (i) Parties, the Party owing payment to the other Party shall pay the amount of the Company’s Cash; (ii) difference to the amount of the Company’s Debt; and (iii) the amount of the Company’s Net Asset Balance; (iv) the amount of the Company’s unpaid Transaction Expenses, together with a calculation of the Closing Consideration based on the foregoing amounts as well as reasonably detailed supporting documentation for such calculation.
(b) Seller shall have other Party within thirty (30) days following its receipt of the Post-Closing Statement (the “Review Period”) to review the same. On or before the expiration of the Review Period, Seller shall deliver to Buyer a written statement accepting or disputing the Post-Closing Statement. In the event that Seller shall dispute the Post-Closing Statement, such statement shall include a reasonably detailed itemization of Seller’s objections and the reasons therefor (such statement, a “Dispute Statement”). Any component of the Post-Closing Statement that is not disputed in a Dispute Statement shall be final and binding on the Parties and not subject to appeal. If Seller does not deliver a Dispute Statement to Buyer within the Review Period or delivers a statement accepting the Post-Closing Statement, the Post-Closing Statement shall be final and binding on the Parties and not subject to appeal. For clarity, any accounts receivable reflected in the Closing Financial Certificate that are not collected within seventy-five (75) calendar days after the Closing Date may be treated by Buyer as invalid in the Post-Closing Statement and date of delivery of such treatment may not be disputed by Seller in the Dispute Statementreport.
(cii) Within [†] months after the termination or expiration of this Agreement, Ivax shall perform a “final true-up” reconciliation (and shall provide Xenon with a written report of such reconciliation) of the items comprising deductions from Net Sales [†] as outlined in subsection (vi) in the definition of Net Sales. The reconciliation shall be based on actual cash paid or credits issued for returns, through the [†] period following the termination or expiration of this Agreement. If Seller delivers a Dispute Statement during the Review Periodforegoing reconciliation report shows either an underpayment or an overpayment between the Parties, Buyer and Seller shall promptly meet and attempt in good faith to resolve their differences with respect the Party owing payment to the disputed items set forth in the Dispute Statement during the thirty (30) calendar days immediately following Buyer’s receipt of the Dispute Statement, or such longer period as Buyer and Seller may mutually agree (the “Resolution Period”). Any such disputed items that are mutually resolved in writing by Buyer and Seller during the Resolution Period other Party shall be final and binding on the Parties and not subject to appeal. If Buyer and Seller do not mutually resolve in writing all such disputed items by the end of the Resolution Period, Buyer and Seller shall submit all items remaining in dispute with respect to the Dispute Statement to an independent accounting firm (in each case, as Buyer and Seller shall reasonably agree) (the “Accounting Firm”) for review and resolution. The Accounting Firm shall act as an expert and not an arbitrator. The Accounting Firm shall determine only those items remaining in dispute between Buyer and Seller, and shall only be permitted or authorized to determine an amount with respect to any such disputed item that is within the range of pay the amount of such disputed item as proposed by Buyer in the Post-Closing Statement and the amount of such disputed item as proposed by Seller in the Dispute Statement. Each of Buyer and Seller shall (i) enter into a customary engagement letter with the Accounting Firm at the time such dispute is submitted to the Accounting Firm and otherwise cooperate with the Accounting Firm, (ii) have the opportunity to submit a written statement in support of their respective positions with respect to such disputed items, to provide supporting material to the Accounting Firm in defense of their respective positions with respect to such disputed items and to submit a written statement responding difference to the other Party’s position with respect to such disputed items and (iii) subject to customary confidentiality and indemnity agreements, provide the Accounting Firm with access to their respective books, records, personnel and representatives and such other information as the Accounting Firm may require in order to render its determination. The Accounting Firm shall be instructed to deliver to Buyer and Seller a written determination (such determination to include a worksheet setting forth all material calculations used in arriving at such determination and to be based solely on information provided to the Accounting Firm by Buyer and Seller) of the disputed items Party within thirty (30) calendar days after the date of receipt delivery of such report.
(iii) In the event that any “true-up” reconciliation performed pursuant to (i) above, shows an underpayment by Ivax for such Year in an amount greater than [†] percent ([†]%) of the disputed itemstotal amount payable to Xenon for such Year, which determination then Ivax shall be final and binding on pay to Xenon any payment owed pursuant to (i) above, together with interest calculated from the Parties and not subject to appeal. All fees and expenses relating to the work (if any) to be performed by the Accounting Firm will be allocated between Buyer, on the one hand, and Seller (on behalf first day of the Effective Time Holders), on the other handYear to which such payment applies, in the same proportion that the aggregate amount of the disputed items so submitted to the Accounting Firm that is unsuccessfully disputed by each such Party (as finally determined by the Accounting Firm) bears to the total disputed amount of such items so submittedmanner provided in Section 8.12. Such allocation calculation shall be made by the Accounting Firm as part of its determination.
(d) The Closing Consideration, calculated based on: (i) the amount of the Company’s Cash; (ii) the amount of the Company’s Debt; and (iii) the amount of the Company’s Net Asset Balance; (iv) the amount of the Company’s unpaid Transaction Expenses, each as deemed final and binding on the Parties pursuant to this Section 2.8, is referred to herein as the “Final Closing Consideration”.
(e) If the amount of the Final Closing Consideration exceeds the amount of the Closing Consideration calculated based on the Closing Financial Certificate (such excess amount, the “Positive Adjustment”), then then the amount of such Positive Adjustment will be added to the First Installment Payment.
(f) If the amount of the Closing Consideration calculated based on the Closing Financial Certificate exceeds the amount of the Final Closing Consideration (the “Negative Adjustment”), the amount of such Negative Adjustment shall be recovered by Buyer via offset against the First Installment Payment, and in the event that after such offset a portion of the Negative Adjustment remains unpaid, then Buyer in its sole discretion may offset such remaining unpaid amount against the Second Installment Payment or may require Seller to repay such amount to Buyer.
(g) Any payment made under this Section 2.8, to the maximum extent permitted by applicable Law, shall be treated for all Tax purposes as an adjustment to the Total Consideration.[†] DESIGNATES PORTIONS OF THIS DOCUMENT THAT HAVE BEEN OMITTED PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT FILED SEPARATELY WITH THE COMMISSION
Appears in 1 contract
Sources: Collaborative Development and License Agreement (Xenon Pharmaceuticals Inc.)
True-Up. (a) No later than ninety (90) calendar days after As soon as practicable following the Closing Date, Buyer LTFS shall prepare and deliverdeliver a copy to Zwigard for his review, or cause to final operating statements for each Company for the periods commencing on the first day of such Company’s fiscal year and ending on September 30, 2007 and October 31, 2007 and final balance sheets for each Company as of September 30, 2007 and October 31, 2007, each of which shall be prepared using a methodology in accordance with U.S. GAAP consistent with such Companies’ past practices in the ordinary course of business and deliveredthe Audited Financial Statements, to Seller a certificate and the Parties shall calculate the Net Worth Reimbursements as hereinafter provided (the “PostTrue-Closing Statement”), executed by an executive officer of Buyer, setting forth Buyer’s good faith calculation of as of the opening of business on the Closing Date: (i) the amount of the Company’s Cash; (ii) the amount of the Company’s Debt; and (iii) the amount of the Company’s Net Asset Balance; (iv) the amount of the Company’s unpaid Transaction Expenses, together with a calculation of the Closing Consideration based on the foregoing amounts as well as reasonably detailed supporting documentation for such calculation.
(b) Seller shall have thirty (30) days following its receipt of the Post-Closing Statement (the “Review Period”) to review the same. On or before the expiration of the Review Period, Seller shall deliver to Buyer a written statement accepting or disputing the Post-Closing Statement. In the event that Seller shall dispute the Post-Closing Statement, such statement shall include a reasonably detailed itemization of Seller’s objections and the reasons therefor (such statement, a “Dispute StatementUp”). Any component of LTFS and Zwigard shall use commercially reasonable efforts to cause the PostTrue-Closing Statement that is not disputed in a Dispute Statement shall Up to be final and binding on the Parties and not subject to appeal. If Seller does not deliver a Dispute Statement to Buyer completed within the Review Period or delivers a statement accepting the Post-Closing Statement, the Post-Closing Statement shall be final and binding on the Parties and not subject to appeal. For clarity, any accounts receivable reflected in the Closing Financial Certificate that are not collected within seventy-five (75) calendar days day period after the Closing Date Date, including providing Zwigard with full access to each Company’s books and records sufficiently early in the process so that such True-Up may be treated by Buyer as invalid completed within such seventy-five (75) day period. When completed, LTFS shall send to Zwigard, in the Post-Closing Statement and such treatment may not be disputed by Seller in the Dispute Statement.
(c) If Seller delivers a Dispute Statement during the Review Period, Buyer and Seller shall promptly meet and attempt in good faith to resolve their differences with respect addition to the disputed items set forth in final operating statements and final balance sheets described above, a notice detailing the Dispute Statement during the thirty (30) calendar days immediately following Buyer’s receipt determination of the Dispute Statement, or such longer period as Buyer and Seller may mutually agree True-Up (the “Resolution PeriodTrue-Up Results Notice”). Any such disputed items In the event that are mutually resolved Zwigard does not agree with the determination of the True-Up or any aspect thereof, he shall advise LTFS in writing within twenty (20) Business Days after he receives the True-Up Results Notice that he disputes the determination of the True-Up and detailing the particular items in the True-Up Results Notice with which he disagrees. The Parties and a certified public accountant chosen and engaged by Buyer Zwigard (the “Challenging Accountant”)) shall have an additional twenty (20) Business Days to resolve any such disputes. If the Parties cannot resolve the disputes within twenty (20) Business Days after such notice of the disputes is delivered, each of the Challenging Accountant and Seller during an independent public accounting firm selected by and in the Resolution Period sole discretion of LTFS shall choose a third certified public accountant (the “CPA”) whose decision shall be final binding upon the Parties. LTFS and Zwigard shall each pay one-half of all costs and expenses associated with the engagement of the CPA. The determination of the True-Up by LTFS, as detailed in the True-Up Results Notice, shall be conclusive and binding on the Parties and not subject to appeal. If Buyer and Seller do not mutually resolve Parties, except that, if Zwigard gives timely written notice of any disputes as hereinabove provided, the True-Up agreed upon in writing by LTFS and Zwigard or the decision rendered by the CPA shall be conclusively determinative for all such disputed items by the end of the Resolution Period, Buyer and Seller shall submit all items remaining in dispute with respect to the Dispute Statement to an independent accounting firm (in each case, as Buyer and Seller shall reasonably agree) (the “Accounting Firm”) for review and resolution. The Accounting Firm shall act as an expert and not an arbitrator. The Accounting Firm shall determine only those items remaining in dispute between Buyer and Seller, and shall only be permitted or authorized to determine an amount with respect to any such disputed item that is within the range of the amount of such disputed item as proposed by Buyer in the Post-Closing Statement and the amount of such disputed item as proposed by Seller in the Dispute Statement. Each of Buyer and Seller shall (i) enter into a customary engagement letter with the Accounting Firm at the time such dispute is submitted to the Accounting Firm and otherwise cooperate with the Accounting Firm, (ii) have the opportunity to submit a written statement in support of their respective positions with respect to such disputed items, to provide supporting material to the Accounting Firm in defense of their respective positions with respect to such disputed items and to submit a written statement responding to the other Party’s position with respect to such disputed items and (iii) subject to customary confidentiality and indemnity agreements, provide the Accounting Firm with access to their respective books, records, personnel and representatives and such other information as the Accounting Firm may require in order to render its determination. The Accounting Firm shall be instructed to deliver to Buyer and Seller a written determination (such determination to include a worksheet setting forth all material calculations used in arriving at such determination and to be based solely on information provided to the Accounting Firm by Buyer and Seller) of the disputed items within thirty (30) calendar days of receipt of the disputed items, which determination shall be final and binding on the Parties and not subject to appeal. All fees and expenses relating to the work (if any) to be performed by the Accounting Firm will be allocated between Buyer, on the one hand, and Seller (on behalf of the Effective Time Holders), on the other hand, in the same proportion that the aggregate amount of the disputed items so submitted to the Accounting Firm that is unsuccessfully disputed by each such Party (as finally determined by the Accounting Firm) bears to the total disputed amount of such items so submitted. Such allocation calculation shall be made by the Accounting Firm as part of its determinationpurposes.
(d) The Closing Consideration, calculated based on: (i) the amount of the Company’s Cash; (ii) the amount of the Company’s Debt; and (iii) the amount of the Company’s Net Asset Balance; (iv) the amount of the Company’s unpaid Transaction Expenses, each as deemed final and binding on the Parties pursuant to this Section 2.8, is referred to herein as the “Final Closing Consideration”.
(e) If the amount of the Final Closing Consideration exceeds the amount of the Closing Consideration calculated based on the Closing Financial Certificate (such excess amount, the “Positive Adjustment”), then then the amount of such Positive Adjustment will be added to the First Installment Payment.
(f) If the amount of the Closing Consideration calculated based on the Closing Financial Certificate exceeds the amount of the Final Closing Consideration (the “Negative Adjustment”), the amount of such Negative Adjustment shall be recovered by Buyer via offset against the First Installment Payment, and in the event that after such offset a portion of the Negative Adjustment remains unpaid, then Buyer in its sole discretion may offset such remaining unpaid amount against the Second Installment Payment or may require Seller to repay such amount to Buyer.
(g) Any payment made under this Section 2.8, to the maximum extent permitted by applicable Law, shall be treated for all Tax purposes as an adjustment to the Total Consideration.
Appears in 1 contract
Sources: Stock Purchase Agreement (Ladenburg Thalmann Financial Services Inc)
True-Up. (a) No later than ninety (90) calendar days after If upon the Closing Date, Buyer shall prepare and deliver, or cause earliest to be prepared and delivered, to Seller a certificate (the “Post-Closing Statement”), executed by an executive officer occur of Buyer, setting forth Buyer’s good faith calculation of as of the opening of business on the Closing Date: (i) the amount of last Trading Day following the Company’s Cash; 90 Day Period, and (ii) the Trading Day that all Remaining Conversion Shares are sold, the gross proceeds received by the Borrower therefrom are less than in the aggregate $1,875,000 (the dollar amount of $1,875,000 less the Company’s Debt; and (iii) gross proceeds received by the amount Lender from the sale of the Company’s Net Asset Balance; (iv) Remaining Shares shall be referred to as the amount of “Shortfall Amount”), then the Company’s unpaid Transaction Expenses, together with a Lender shall send to the Borrower in writing its calculation of the Closing Consideration based Shortfall and proof of the gross proceeds received by it from the sale of the Remaining Conversion Shares (brokerage, statements and/or similar evidence shall be sufficient proof thereof, such Shortfall Calculations plus the proof of the gross proceeds received from the sale of the Remaining Conversion Shares shall hereinafter be referred to as the “Shortfall Package”), and absent manifest error by the Lender, provided in detail in writing from the Borrower to the Lender no later than the 2nd Trading Day following the 3rd Business Day after the Borrower receives or is deemed to receive the Shortfall Package shall be binding on the foregoing amounts as well as reasonably detailed supporting documentation for such calculation.
(b) Seller shall have thirty (30) days Parties. Thereafter, on the 2nd Trading Day following its receipt of the Post-Closing Statement date the Borrower receives or is deemed to receive the Shortfall Package (the “Review PeriodTrue-Up Date”); the Borrower shall at its option either (i) pay in cash to review the same. On Lender the Shortfall Amount by wire transfer of immediately available funds pursuant to wiring instructions provided to the Lender, or before the expiration of the Review Period, Seller shall (ii) deliver to Buyer a written statement accepting or disputing the Post-Closing Statement. In the event that Seller shall dispute the Post-Closing Statement, Lender such statement shall include a reasonably detailed itemization number of Seller’s objections and the reasons therefor (such statement, a “Dispute Statement”). Any component additional shares of the Post-Closing Statement that is not disputed in a Dispute Statement shall be final and binding on the Parties and not subject to appeal. If Seller does not deliver a Dispute Statement to Buyer within the Review Period or delivers a statement accepting the Post-Closing Statement, the Post-Closing Statement shall be final and binding on the Parties and not subject to appeal. For clarity, any accounts receivable reflected in the Closing Financial Certificate that are not collected within seventy-five (75) calendar days after the Closing Date may be treated by Buyer as invalid in the Post-Closing Statement and such treatment may not be disputed by Seller in the Dispute Statement.
(c) If Seller delivers a Dispute Statement during the Review Period, Buyer and Seller shall promptly meet and attempt in good faith to resolve their differences with respect to the disputed items set forth in the Dispute Statement during the thirty (30) calendar days immediately following Buyer’s receipt of the Dispute Statement, or such longer period as Buyer and Seller may mutually agree Common Stock (the “Resolution PeriodTrue-Up Shares”). Any such disputed items that are mutually resolved , without restrictive legend, or if because the Borrower was ever a “Shell Company” (as defined under Rule 144), True-Up Shares with a standard Securities Act legend and its counsel issues to the Borrowers transfer agent a legal opinion (or opinions when requested at any time and from time to time by the Lender to remove the restrictive legends upon a sale of any True-Up Shares) in writing an amount equal to the Shortfall Amount divided by Buyer and Seller during the Resolution Period shall be final and binding closing sales price of a share of Common Stock on the Parties Trading Day immediately following the True-Up Date; and not subject the Borrower shall have the right to appeal. If Buyer sell the True-Up Shares without limitation provided, however, if the Borrower elects to provide to the Lender True-Up Shares on the True-Up Date, and Seller do not mutually resolve in writing following the sale of all such disputed items True-Up Shares by the end of the Resolution PeriodLender, Buyer and Seller shall submit all items remaining in dispute with respect to the Dispute Statement to an independent accounting firm (in each case, as Buyer and Seller shall reasonably agree) (the “Accounting Firm”) for review and resolution. The Accounting Firm shall act as an expert and not an arbitrator. The Accounting Firm shall determine only those items remaining in dispute between Buyer and Seller, and shall only be permitted or authorized to determine an amount with respect to any such disputed item that is within the range of the amount of such disputed item as proposed by Buyer in the Post-Closing Statement and the amount of such disputed item as proposed by Seller in the Dispute Statement. Each of Buyer and Seller shall (i) enter into a customary engagement letter with the Accounting Firm at the time such dispute is submitted to the Accounting Firm and otherwise cooperate with the Accounting Firm, (ii) have the opportunity to submit a written statement in support of their respective positions with respect to such disputed items, to provide supporting material to the Accounting Firm in defense of their respective positions with respect to such disputed items and to submit a written statement responding to the other Party’s position with respect to such disputed items and (iii) subject to customary confidentiality and indemnity agreements, provide the Accounting Firm with access to their respective books, records, personnel and representatives and such other information as the Accounting Firm may require in order to render its determination. The Accounting Firm shall be instructed to deliver to Buyer and Seller a written determination (such determination to include a worksheet setting forth all material calculations used in arriving at such determination and to be based solely on information provided to the Accounting Firm by Buyer and Seller) of the disputed items within thirty (30) calendar days of receipt of the disputed items, which determination shall be final and binding on the Parties and not subject to appeal. All fees and expenses relating to the work (if any) to be performed by the Accounting Firm will be allocated between Buyer, on the one hand, and Seller (on behalf of the Effective Time Holders), on the other hand, in the same proportion that the aggregate amount of the disputed items so submitted to the Accounting Firm that is unsuccessfully disputed by each such Party (as finally determined gross proceeds received by the Accounting FirmLender from the sale of the Remaining Conversion Shares and the True-Up Shares is less than $1,875,000 (the “2nd Shortfall Amount”), as evidenced by proof in form so provided elsewhere in this Section 1(c), then the Borrower shall no later than the third (3rd) bears to Trading Day following the total disputed amount date the Borrower receives such calculation and proof of such items so submitted. Such allocation calculation shall be made by the Accounting Firm as part of its determination.
2nd Shortfall Amount (dthe “2nd True-Up Date”) The Closing Consideration, calculated based on: at the Borrower’s option either (i) pay in cash to the amount Lender the 2nd Shortfall Amount by wire transfer of immediately available funds pursuant to wiring instructions provided to the Company’s Cash; Lender, or (ii) deliver to the Lender such number True-Up Shares, without restrictive legend, or if because the Borrower was ever a “Shell Company” (as defined under Rule 144), True-Up Shares with a standard Securities Act legend and its counsel issues to the Borrower’s transfer agent a legal opinion (or opinions when requested at any time and from time to time by the Lender to remove the restrictive legends upon a sale of any True-Up Shares) in an amount equal to the 2nd Shortfall Amount divided by the closing sales price of a share of Common Stock on the Trading Day immediately following the 2nd True-Up Date; and the Borrower shall have the right to sell the True-Up Shares without limitation. Absent manifest error by the Lender, the Lenders calculation of the Company’s Debt; and (iii) the amount of the Company’s Net Asset Balance; (iv) the amount of the Company’s unpaid Transaction Expenses, each as deemed final and 2nd Shortfall Amount shall be binding on the Parties pursuant Parties. The Borrower agrees to take any and all action reasonably requested by the Borrower, in the time frame reasonably requested by the Lender (if no time frame is provided herein and/or in the other Documents), to facilitate the provisions of this Section 2.8, is referred to herein as the “Final Closing Consideration”1(c).
(e) If the amount of the Final Closing Consideration exceeds the amount of the Closing Consideration calculated based on the Closing Financial Certificate (such excess amount, the “Positive Adjustment”), then then the amount of such Positive Adjustment will be added to the First Installment Payment.
(f) If the amount of the Closing Consideration calculated based on the Closing Financial Certificate exceeds the amount of the Final Closing Consideration (the “Negative Adjustment”), the amount of such Negative Adjustment shall be recovered by Buyer via offset against the First Installment Payment, and in the event that after such offset a portion of the Negative Adjustment remains unpaid, then Buyer in its sole discretion may offset such remaining unpaid amount against the Second Installment Payment or may require Seller to repay such amount to Buyer.
(g) Any payment made under this Section 2.8, to the maximum extent permitted by applicable Law, shall be treated for all Tax purposes as an adjustment to the Total Consideration.
Appears in 1 contract
True-Up. (a) No later If, following a Qualified IPO of the type described in clause (c) of the definition thereof, the IPO Entity completes a public offering of its common equity securities for aggregate primary gross cash proceeds of not less than ninety $250,000,000 within 9 months of the commencement of the Observation Period (90a “Post-IPO Primary Offering”) calendar days after at an initial per unit price to the Closing Date, Buyer shall prepare and deliver, or cause public of the equity securities of the IPO Entity sold to be prepared and delivered, to Seller a certificate the public (the “Post-Closing StatementIPO Primary Offering Unit Price”)) that is less than the IPO Unit Price, executed by an executive officer then the Mubadala Investors shall be entitled to receive, in the aggregate (and without further consideration therefor) a number of Buyeradditional non-voting Substitute Parent Entity Interests or IPO Entity Equity Securities, setting forth Buyer’s good faith calculation of as of the opening of business on the Closing Date: case may be (i) the amount of the Company’s Cash; (ii) the amount of the Company’s Debt; and (iii) the amount of the Company’s Net Asset Balance; (iv) the amount of the Company’s unpaid Transaction Expenses, together with a calculation of the Closing Consideration based on the foregoing amounts as well as reasonably detailed supporting documentation for type of security that the Mubadala Investors currently hold immediately after the Qualified IPO), with an aggregate value equal to the True Up Amount; provided that the Carlyle Parent Entities may elect, in their sole discretion, to pay all or a portion of the True-Up Amount in cash; and provided, further, that in no event will additional securities be issued to the Mubadala Investors or their Affiliates that would violate the restrictions of Section 5.3; and in the event that the Mubadala Investors are unable to receive additional equity securities due to the restrictions set forth in Section 5.3, then payment of the True Up Amount (or any remaining unsatisfied portion thereof) shall be made in cash at the consummation of the Post-IPO Primary Offering. In the event that any True Up Amount is paid in IPO Entity Equity Securities or Substitute Parent Entity Interests, such calculationsecurities shall be deemed to have a per unit value equal to the Post-IPO Primary Offering Unit Price.
(b) Seller For purposes of this Section 5.4, the term “True Up Amount” shall have thirty mean an amount equal to the product of (30A) days following its receipt the excess, if any, of (x) the IPO Unit Price determined pursuant to clause (b) of the definition thereof over (y) the Post-Closing Statement IPO Primary Offering Unit Price, multiplied by (B) the “Review Period”) to review number of Exchange Securities the same. On or before Mubadala Investors actually received in the expiration exchange of the Review Period, Seller shall deliver to Buyer a written statement accepting or disputing the Post-Closing Statement. In the event that Seller shall dispute the Post-Closing Statement, such statement shall include a reasonably detailed itemization of Seller’s objections and the reasons therefor (such statement, a “Dispute Statement”). Any component of the Post-Closing Statement that is not disputed in a Dispute Statement shall be final and binding on the Parties and not subject to appeal. If Seller does not deliver a Dispute Statement to Buyer within the Review Period or delivers a statement accepting the Post-Closing Statement, the Post-Closing Statement shall be final and binding on the Parties and not subject to appeal. For clarity, any accounts receivable reflected in the Closing Financial Certificate that are not collected within seventy-five (75) calendar days after the Closing Date may be treated by Buyer as invalid in the Post-Closing Statement and such treatment may not be disputed by Seller in the Dispute Statement.
(c) If Seller delivers a Dispute Statement during the Review Period, Buyer and Seller shall promptly meet and attempt in good faith to resolve their differences with respect to the disputed items set forth in the Dispute Statement during the thirty (30) calendar days immediately following Buyer’s receipt of the Dispute Statement, or such longer period as Buyer and Seller may mutually agree (the “Resolution Period”). Any such disputed items that are mutually resolved in writing by Buyer and Seller during the Resolution Period shall be final and binding on the Parties and not subject to appeal. If Buyer and Seller do not mutually resolve in writing all such disputed items by the end of the Resolution Period, Buyer and Seller shall submit all items remaining in dispute with respect to the Dispute Statement to an independent accounting firm (in each case, as Buyer and Seller shall reasonably agree) (the “Accounting Firm”) Notes for review and resolution. The Accounting Firm shall act as an expert and not an arbitrator. The Accounting Firm shall determine only those items remaining in dispute between Buyer and Seller, and shall only be permitted or authorized to determine an amount with respect to any such disputed item that is within the range of the amount of such disputed item as proposed by Buyer in the Post-Closing Statement and the amount of such disputed item as proposed by Seller in the Dispute Statement. Each of Buyer and Seller shall (i) enter into a customary engagement letter with the Accounting Firm at the time such dispute is submitted to the Accounting Firm and otherwise cooperate with the Accounting Firm, (ii) have the opportunity to submit a written statement in support of their respective positions with respect to such disputed items, to provide supporting material to the Accounting Firm in defense of their respective positions with respect to such disputed items and to submit a written statement responding to the other Party’s position with respect to such disputed items and (iii) subject to customary confidentiality and indemnity agreements, provide the Accounting Firm with access to their respective books, records, personnel and representatives and such other information as the Accounting Firm may require in order to render its determination. The Accounting Firm shall be instructed to deliver to Buyer and Seller a written determination (such determination to include a worksheet setting forth all material calculations used in arriving at such determination and to be based solely on information provided to the Accounting Firm by Buyer and Seller) of the disputed items within thirty (30) calendar days of receipt of the disputed items, which determination shall be final and binding on the Parties and not subject to appeal. All fees and expenses relating to the work (if any) to be performed by the Accounting Firm will be allocated between Buyer, on the one hand, and Seller (on behalf of the Effective Time Holders), on the other hand, in the same proportion that the aggregate amount of the disputed items so submitted to the Accounting Firm that is unsuccessfully disputed by each such Party (as finally determined by the Accounting Firm) bears to the total disputed amount of such items so submitted. Such allocation calculation shall be made by the Accounting Firm as part of its determination.
(d) The Closing Consideration, calculated based on: (i) the amount of the Company’s Cash; (ii) the amount of the Company’s Debt; and (iii) the amount of the Company’s Net Asset Balance; (iv) the amount of the Company’s unpaid Transaction Expenses, each as deemed final and binding on the Parties Exchange Securities pursuant to this Section 2.8, is referred 5.1 (calculated on an as converted to herein as the “Final Closing Consideration”IPO Entity Equity Security basis).
(e) If the amount of the Final Closing Consideration exceeds the amount of the Closing Consideration calculated based on the Closing Financial Certificate (such excess amount, the “Positive Adjustment”), then then the amount of such Positive Adjustment will be added to the First Installment Payment.
(f) If the amount of the Closing Consideration calculated based on the Closing Financial Certificate exceeds the amount of the Final Closing Consideration (the “Negative Adjustment”), the amount of such Negative Adjustment shall be recovered by Buyer via offset against the First Installment Payment, and in the event that after such offset a portion of the Negative Adjustment remains unpaid, then Buyer in its sole discretion may offset such remaining unpaid amount against the Second Installment Payment or may require Seller to repay such amount to Buyer.
(g) Any payment made under this Section 2.8, to the maximum extent permitted by applicable Law, shall be treated for all Tax purposes as an adjustment to the Total Consideration.
Appears in 1 contract
Sources: Note and Unit Subscription Agreement (Carlyle Group L.P.)
True-Up. (a) No later than ninety (90) calendar days after In the Closing Date, Buyer event that any Loan shall prepare be outstanding and deliver, or cause to be prepared and delivered, to Seller a certificate (the “Post-Closing Statement”), executed by an executive officer of Buyer, setting forth Buyer’s good faith calculation of as of the opening of business on the Closing Date: (i) the amount principal of or interest on such Loan shall not be paid within three Business Days after the Company’s Cash; date on which it is due and the Required US Lenders or the Required Canadian Lenders shall deliver to the Administrative Agents and the Borrowers a request that the provisions of this paragraph take effect with respect to all Loans (after which time all additional borrowings of Loans, if any, must be ratable as between the Borrowers) or (ii) the amount Commitments shall be terminated or the Loans accelerated pursuant to Article VII, then (unless such request is revoked by the Required US Lenders or Required Canadian Lenders, as applicable) (w) each Lender shall acquire at face value (or sell at face value, as the case may be) a participation in the obligations of each Borrower in respect of the Company’s Debt; principal of and (iii) interest on each outstanding Loan of such Borrower such that each Lender shall have a participation in the amount Loans of the Company’s Net Asset Balance; (iv) the amount of the Company’s unpaid Transaction Expenseseach Borrower, together with a calculation Loans owed by such Borrower and held by such Lender not subject to any participation pursuant to this paragraph, equal to its Applicable Percentage of such obligations (it being further understood and agreed that, upon such purchase, the risk participations of the Closing Consideration based on Lenders in all outstanding Letters of Credit and Swingline Loans shall be automatically adjusted such that each Lender’s risk participation (expressed as a percentage) in each Letter of Credit issued at the foregoing request of, or Swingline Loan made to, a Borrower shall equal its Applicable Percentage), (x) the Lenders shall enter into such documentation as the US Administrative Agent may reasonably require for the purpose of evidencing such participations and other interests, (y) each applicable Lender shall pay the purchase price for its purchase of participations pursuant to this paragraph by wire transfer of immediately available funds in US Dollars to the US Administrative Agent in accordance with instructions provided by the US Administrative Agent, and the US Administrative Agent shall promptly wire the amounts so received to the relevant Lenders) and (z) all payments in respect of the principal or interest of in respect of the Aggregate Credit Exposure or fees from and after the purchase of such participations shall be shared by the Lenders in accordance with this paragraph and such participations will generally be subject to the same provisions as are applicable to the participations in Letters of Credit set forth in Section 2.07 giving effect to changes necessary to reflect the nature of the arrangements set forth herein. The obligations of the Lenders to acquire and pay for participations in Loans (as well as reasonably detailed supporting documentation the adjustments provided for such calculation.
(bherein) Seller shall have thirty (30) days following its receipt of the Post-Closing Statement (the “Review Period”) to review the same. On or before the expiration of the Review Period, Seller shall deliver to Buyer a written statement accepting or disputing the Post-Closing Statement. In the event that Seller shall dispute the Post-Closing Statement, such statement shall include a reasonably detailed itemization of Seller’s objections and the reasons therefor (such statement, a “Dispute Statement”). Any component of the Post-Closing Statement that is not disputed in a Dispute Statement shall be final and binding on the Parties and not subject to appeal. If Seller does not deliver a Dispute Statement to Buyer within the Review Period or delivers a statement accepting the Post-Closing Statement, the Post-Closing Statement shall be final and binding on the Parties and not subject to appeal. For clarity, any accounts receivable reflected in the Closing Financial Certificate that are not collected within seventy-five (75) calendar days after the Closing Date may be treated by Buyer as invalid in the Post-Closing Statement and such treatment may not be disputed by Seller in the Dispute Statement.
(c) If Seller delivers a Dispute Statement during the Review Period, Buyer and Seller shall promptly meet and attempt in good faith to resolve their differences with respect to the disputed items set forth in the Dispute Statement during the thirty (30) calendar days immediately following Buyer’s receipt of the Dispute Statement, or such longer period as Buyer and Seller may mutually agree (the “Resolution Period”). Any such disputed items that are mutually resolved in writing by Buyer and Seller during the Resolution Period shall be final and binding on the Parties and not subject to appeal. If Buyer and Seller do not mutually resolve in writing all such disputed items by the end of the Resolution Period, Buyer and Seller shall submit all items remaining in dispute with respect to the Dispute Statement to an independent accounting firm (in each case, as Buyer and Seller shall reasonably agree) (the “Accounting Firm”) for review and resolution. The Accounting Firm shall act as an expert and not an arbitrator. The Accounting Firm shall determine only those items remaining in dispute between Buyer and Seller, and shall only be permitted or authorized to determine an amount with respect to any such disputed item that is within the range of the amount of such disputed item as proposed by Buyer in the Post-Closing Statement and the amount of such disputed item as proposed by Seller in the Dispute Statement. Each of Buyer and Seller shall (i) enter into a customary engagement letter with the Accounting Firm at the time such dispute is submitted to the Accounting Firm and otherwise cooperate with the Accounting Firm, (ii) have the opportunity to submit a written statement in support of their respective positions with respect to such disputed items, to provide supporting material to the Accounting Firm in defense of their respective positions with respect to such disputed items and to submit a written statement responding to the other Party’s position with respect to such disputed items and (iii) subject to customary confidentiality and indemnity agreements, provide the Accounting Firm with access to their respective books, records, personnel and representatives and such other information as the Accounting Firm may require in order to render its determination. The Accounting Firm shall be instructed to deliver to Buyer and Seller a written determination (such determination to include a worksheet setting forth all material calculations used in arriving at such determination and to be based solely on information provided to the Accounting Firm by Buyer and Seller) of the disputed items within thirty (30) calendar days of receipt of the disputed items, which determination shall be final and binding on the Parties and not subject to appeal. All fees and expenses relating to the work (if any) to be performed by the Accounting Firm will be allocated between Buyer, on the one hand, and Seller (on behalf of the Effective Time Holders), on the other hand, in the same proportion that the aggregate amount of the disputed items so submitted to the Accounting Firm that is unsuccessfully disputed by each such Party (as finally determined by the Accounting Firm) bears to the total disputed amount of such items so submitted. Such allocation calculation shall be made by the Accounting Firm as part of its determination.
(d) The Closing Consideration, calculated based on: (i) the amount of the Company’s Cash; (ii) the amount of the Company’s Debt; and (iii) the amount of the Company’s Net Asset Balance; (iv) the amount of the Company’s unpaid Transaction Expenses, each as deemed final and binding on the Parties pursuant to this Section 2.8, is referred to herein as the “Final Closing Consideration”.
(e) If the amount of the Final Closing Consideration exceeds the amount of the Closing Consideration calculated based on the Closing Financial Certificate (such excess amount, the “Positive Adjustment”), then then the amount of such Positive Adjustment will be added to the First Installment Payment.
(f) If the amount of the Closing Consideration calculated based on the Closing Financial Certificate exceeds the amount of the Final Closing Consideration (the “Negative Adjustment”), the amount of such Negative Adjustment paragraph shall be recovered by Buyer via offset against the First Installment Payment, absolute and in the event that after such offset a portion of the Negative Adjustment remains unpaid, then Buyer in its sole discretion may offset such remaining unpaid amount against the Second Installment Payment or may require Seller to repay such amount to Buyerunconditional under any and all circumstances.
(g) Any payment made under this Section 2.8, to the maximum extent permitted by applicable Law, shall be treated for all Tax purposes as an adjustment to the Total Consideration.
Appears in 1 contract
True-Up. (a) No later than ninety (90) calendar days after the Closing Date, Buyer shall prepare and deliver, or cause to be prepared and delivered, to Seller a certificate (the “Post-Closing Statement”), executed by an executive officer of Buyer, setting forth Buyer’s good faith calculation of as of the opening of business on the Closing Date: (i) Subject to Section 6.5(b), each Ingram Compa▇▇ ▇▇▇eby agrees that, at or immediately prior to the First Closing, the Adjustment Amount (as defined below) shall be allocated 23.01% to Industries, 72.84% to Micro and 4.15% to Entertainment. Such allocation shall be made through appropriate adjustments effected by way of dividends or capital contributions to balance (A) the actual amount which each of Industries, Micro and Entertainment and their respective Subsidiaries have contributed to the Adjustment Amount with (B) the respective share of the Company’s Cash; Adjustment Amount to be allocated to each of them pursuant to the foregoing sentence. As used herein, "Adjustment Amount" shall mean the sum of (i) consolidated net income as reported in Industries' unaudited interim financial statements for the period (the "Initial Adjustment Period") commencing January 1, 1996 and ending (x) on the last day of the full accounting month ended immediately prior to the First Closing Date (if the First Closing Date occurs later than the 15th day of the month) or (y) the last day of the second full accounting month ended prior to the First Closing Date (if the First Closing Date occurs on or prior to the 15th day of the month) and (ii) the amount consolidated net income of Industries, as projected by Industries, for the Company’s Debt; and (iii) the amount of the Company’s Net Asset Balance; (iv) the amount of the Company’s unpaid Transaction Expenses, together with a calculation of the Closing Consideration based period commencing on the foregoing amounts as well as reasonably detailed supporting documentation for such calculation.
(b) Seller shall have thirty (30) days first day following its receipt of the Post-Closing Statement (the “Review Period”) to review the same. On or before the expiration of the Review Period, Seller shall deliver to Buyer a written statement accepting or disputing the Post-Closing Statement. In the event that Seller shall dispute the Post-Closing Statement, such statement shall include a reasonably detailed itemization of Seller’s objections and the reasons therefor (such statement, a “Dispute Statement”). Any component of the Post-Closing Statement that is not disputed in a Dispute Statement shall be final and binding on the Parties and not subject to appeal. If Seller does not deliver a Dispute Statement to Buyer within the Review Period or delivers a statement accepting the Post-Closing Statement, the Post-Closing Statement shall be final and binding on the Parties and not subject to appeal. For clarity, any accounts receivable reflected in the Closing Financial Certificate that are not collected within seventy-five (75) calendar days after the Closing Date may be treated by Buyer as invalid in the Post-Closing Statement and such treatment may not be disputed by Seller in the Dispute Statement.
(c) If Seller delivers a Dispute Statement during the Review Period, Buyer and Seller shall promptly meet and attempt in good faith to resolve their differences with respect to the disputed items set forth in the Dispute Statement during the thirty (30) calendar days immediately following Buyer’s receipt of the Dispute Statement, or such longer period as Buyer and Seller may mutually agree (the “Resolution Period”). Any such disputed items that are mutually resolved in writing by Buyer and Seller during the Resolution Period shall be final and binding on the Parties and not subject to appeal. If Buyer and Seller do not mutually resolve in writing all such disputed items by the end of the Resolution Period, Buyer Initial Adjustment Period and Seller shall submit all items remaining in dispute with respect to ending on the Dispute Statement to an independent accounting firm (in each case, as Buyer and Seller shall reasonably agree) (the “Accounting Firm”) for review and resolution. The Accounting Firm shall act as an expert and not an arbitrator. The Accounting Firm shall determine only those items remaining in dispute between Buyer and Seller, and shall only be permitted or authorized to determine an amount with respect to any such disputed item that is within the range last day of the amount fiscal year, assuming for purposes of such disputed item as proposed by Buyer in the Post-Closing Statement and the amount of such disputed item as proposed by Seller in the Dispute Statement. Each of Buyer and Seller shall (i) enter into a customary engagement letter with the Accounting Firm at the time such dispute is submitted to the Accounting Firm and otherwise cooperate with the Accounting Firm, this clause (ii) have that the opportunity First Closing does not occur during such fiscal year; provided that the Adjustment Amount shall be determined without giving effect to submit a written statement (a) any net income or losses related to IMS or IPSI (each, as defined in support the Reorganization Agreement), (b) the after-tax effect of their respective positions with respect to the Industries LIFO provision for such disputed itemsperiod, to provide supporting material (c) any accrual for expenses related to the Accounting Firm in defense of their respective positions with respect to such disputed items and to submit a written statement responding to the other Party’s position with respect to such disputed items and (iii) subject to customary confidentiality and indemnity agreementstransactions contemplated hereby, provide the Accounting Firm with access to their respective books, records, personnel and representatives and such other information as the Accounting Firm may require in order to render its determination. The Accounting Firm shall be instructed to deliver to Buyer and Seller a written determination (such determination to include a worksheet setting forth all material calculations used in arriving at such determination and to be based solely on information provided to the Accounting Firm by Buyer and Seller) of the disputed items within thirty (30) calendar days of receipt of the disputed items, which determination shall be final and binding on the Parties and not subject to appeal. All fees and expenses relating to the work (if any) to be performed by the Accounting Firm will be allocated between BuyerRelated Agreements, on by the one hand, and Seller Reorganization Agreement or by the Ancillary Agreements (on behalf of as defined in the Effective Time HoldersReorganization Agreement), on the other hand, in the same proportion that the aggregate amount of the disputed items so submitted to the Accounting Firm that is unsuccessfully disputed by each such Party (as finally determined by the Accounting Firm) bears to the total disputed amount of such items so submitted. Such allocation calculation shall be made by the Accounting Firm as part of its determination.
(d) The Closing Consideration, calculated based on: (i) the amount of the Company’s Cash; (ii) the amount of the Company’s Debt; and (iii) the amount of the Company’s Net Asset Balance; (iv) the amount of the Company’s unpaid Transaction Expenses, each as deemed final and binding on the Parties pursuant any non-cash charges related to this Section 2.8, is referred to herein as the “Final Closing Consideration”.
Micro's stock option plans or (e) If any expenses referred to in Section 7.12 of this Agreement; provided further that the amount of the Final Closing Consideration exceeds the amount of the Closing Consideration calculated based on the Closing Financial Certificate (such excess amount, the “Positive Adjustment”), then then the amount of such Positive Adjustment will be added to the First Installment Payment.
(f) If the amount of the Closing Consideration calculated based on the Closing Financial Certificate exceeds the amount of the Final Closing Consideration (the “Negative Adjustment”), the amount of such Negative Adjustment Amount shall be recovered increased or decreased by Buyer via offset against such other amounts as the First Installment Payment, and in the event that after such offset a portion of the Negative Adjustment remains unpaid, then Buyer in its sole discretion may offset such remaining unpaid amount against the Second Installment Payment or may require Seller to repay such amount to BuyerIngram Compa▇▇▇▇ ▇ay agree.
(g) Any payment made under this Section 2.8, to the maximum extent permitted by applicable Law, shall be treated for all Tax purposes as an adjustment to the Total Consideration.
Appears in 1 contract
True-Up. (a) No later than ninety (90) calendar days after the Closing Date, Buyer shall prepare and deliver, or Limited Brands will cause to be prepared and delivered, delivered to Seller ▇▇▇▇▇▇ a certificate reasonably detailed statement (the “Post-Closing Settlement Statement”) of IT costs allocable to ▇▇▇▇▇▇ calculated in accordance with the Customary Billing Method and Percent of Sales Billing Method, as applicable (“Actual Monthly Fee”) within five (5) Business Days following each fiscal month, in the case of IT costs billed in accordance with the Customary Billing Method (activity based charges), executed by an executive officer of Buyer, setting forth Buyer’s good faith calculation of as and within five (5) Business Days following the end of the opening second and fourth fiscal quarters, in the case of business on IT costs billed in accordance with the Percent of Sales Billing Method (except that the Settlement Statement to be delivered at the end of fiscal January 2002 shall reflect IT costs allocable to ▇▇▇▇▇▇ from the Closing Date: (i) Date through the amount end of the Company’s Cash; (ii) the amount of the Company’s Debt; and (iii) the amount of the Company’s Net Asset Balance; (iv) the amount of the Company’s unpaid Transaction Expenses, together with a calculation of the Closing Consideration based on the foregoing amounts as well as reasonably detailed supporting documentation for such calculationfiscal 2002).
(b) Seller shall have thirty (30) days following its receipt If ▇▇▇▇▇▇ disagrees with Limited Brands calculation of the Post-Closing Statement Actual Monthly Fee delivered, ▇▇▇▇▇▇ may, within 20 days after delivery of the Settlement Statements referred to in (the “Review Period”a), deliver a notice to Limited Brands disagreeing with such calculation and setting forth ▇▇▇▇▇▇’▇ calculation of such amount. Any such notice of disagreement shall specify in reasonable detail those items or amounts as to which ▇▇▇▇▇▇ disagrees and shall specify ▇▇▇▇▇▇’▇ proposed adjustment(s) to review the same. On or before the expiration of the Review Period, Seller shall deliver to Buyer a written statement accepting or disputing the Post-Closing Statement. In the event that Seller shall dispute the Post-Closing Settlement Statement, such statement and ▇▇▇▇▇▇ shall include a reasonably detailed itemization of Seller’s objections be deemed to have agreed with all other items and amounts contained in the reasons therefor Settlement Statement delivered pursuant to Section (such statement, a “Dispute Statement”a). Any component If ▇▇▇▇▇▇ shall fail to give Limited Brands such notice of the Post-Closing Statement that is not disputed in a Dispute Statement disagreement within such 20 day period, ▇▇▇▇▇▇ shall be final and binding on deemed to have agreed with Limited Brands as to the Parties and not subject to appeal. If Seller does not deliver a Dispute Statement to Buyer within the Review Period or delivers a statement accepting the Post-Closing Statement, the Post-Closing Statement shall be final and binding on the Parties and not subject to appeal. For clarity, any accounts receivable reflected in the Closing Financial Certificate that are not collected within seventy-five (75) calendar days after the Closing Date may be treated by Buyer as invalid in the Post-Closing Statement and such treatment may not be disputed by Seller in the Dispute Settlement Statement.
(c) If Seller delivers a Dispute Statement notice of disagreement shall be duly and timely delivered pursuant to Section (b), Limited Brands and ▇▇▇▇▇▇ shall, during the Review Period30 days following such delivery, Buyer and Seller shall promptly meet and attempt in good faith use their reasonable best efforts to resolve their differences with respect to reach agreement on the disputed items set forth or amounts of Actual Monthly Fee, which amount shall not be more than the amount thereof shown in Limited Brands’ calculations delivered pursuant to Section (a) nor less than the amount thereof shown in ▇▇▇▇▇▇’▇ calculation delivered pursuant to Section (b). If, during such 30 day period, Limited and ▇▇▇▇▇▇ are unable to reach such agreement, they shall (1) in the Dispute Statement during case of IT costs billed in accordance with the thirty Percent of Sales Billing Method within five (305) calendar days immediately following Buyer’s receipt the end of such 30 day period, and (2) in the case of IT costs billed in accordance with the Customary Billing Method (activity based charges) within five (5) days following the end of the Dispute Statementsecond fiscal quarter or fourth fiscal quarter, as applicable, refer the dispute to KPMG (other than in the offices of KPMG located in Columbus, Ohio, Indianapolis, Indiana or such longer period as Buyer New York, New York) for resolution. KPMG shall be directed to promptly commence a review this Agreement and Seller may mutually agree the disputed items or amounts for the purpose of calculating the Actual Monthly Fee in accordance with the provisions of Section (the “Resolution Period”a). Any In making such calculation, KPMG may examine all work papers utilized in connection with the preparation of the Settlement Statement but shall consider only those items or amounts in the Actual Monthly Fee as to which ▇▇▇▇▇▇ has disagreed. Such independent accounting firm shall deliver to Limited Brands and ▇▇▇▇▇▇, as promptly as practicable, but in any event, within 30 days after such independent accounting firm have commenced their review, a report setting forth such calculation of such disputed items that are mutually resolved amount, which calculation shall not be greater than the amount thereof shown in writing by Buyer and Seller during Limited Brands’ calculation delivered pursuant to Section (a) nor less than the Resolution Period amount thereof shown in ▇▇▇▇▇▇’▇ calculation delivered pursuant to Section (b). Such report shall be final and binding on upon the Parties parties hereto absent manifest error. The cost of such review and not subject to appeal. If Buyer and Seller do not mutually resolve in writing all such disputed items report shall be borne by the end of the Resolution Period, Buyer and Seller shall submit all items remaining in dispute party whose position with respect to the Dispute Statement to an independent accounting firm calculation (in each case, as Buyer and Seller shall reasonably agree) (the “Accounting Firm”) for review and resolution. The Accounting Firm shall act as an expert and not an arbitrator. The Accounting Firm shall determine only those items remaining in dispute between Buyer and Seller, and shall only be permitted or authorized to determine an amount with respect to any such disputed item that is within the range of the amount of such disputed item Limited Brands, as proposed by Buyer in the Post-Closing Statement delivered pursuant to Section (a), and the amount of such disputed item as proposed by Seller in the Dispute Statement. Each of Buyer and Seller shall (i) enter into a customary engagement letter with the Accounting Firm at the time such dispute is submitted to the Accounting Firm and otherwise cooperate with the Accounting Firm, (ii) have the opportunity to submit a written statement in support of their respective positions with respect to such disputed items▇▇▇▇▇▇, as delivered pursuant to provide supporting material Section (b)) bears the greatest difference to the Accounting Firm in defense of their respective positions with respect to such disputed items and to submit a written statement responding to the other Party’s final position with respect to such disputed items and (iii) subject to customary confidentiality and indemnity agreements, provide the Accounting Firm with access to their respective books, records, personnel and representatives and such other information as the Accounting Firm may require in order to render its determination. The Accounting Firm shall be instructed to deliver to Buyer and Seller a written determination (such determination to include a worksheet setting forth all material calculations used in arriving at such determination and to be based solely on information provided to the Accounting Firm by Buyer and Seller) of the disputed items within thirty (30) calendar days of receipt of the disputed items, which determination shall be final and binding on the Parties and not subject to appeal. All fees and expenses relating to the work (if any) to be performed by the Accounting Firm will be allocated between Buyer, on the one hand, and Seller (on behalf of the Effective Time Holders), on the other hand, in the same proportion that the aggregate amount of the disputed items so submitted to the Accounting Firm that is unsuccessfully disputed by each such Party (as finally determined by the Accounting Firm) bears to the total disputed amount of such items so submitted. Such allocation calculation shall be made by the Accounting Firm as part of its determinationindependent accounting firm.
(d) The Closing Consideration, calculated based on: (i) Actual Monthly Fee set forth in the amount of the Company’s Cash; (ii) the amount of the Company’s Debt; Settlement Statement in each case either as agreed to by Limited Brands and (iii) the amount of the Company’s Net Asset Balance; (iv) the amount of the Company’s unpaid Transaction Expenses, each as deemed final and binding on the Parties pursuant to this Section 2.8, ▇▇▇▇▇▇ if such Settlement Statement is not referred to herein the independent accounting firm or as finally determined by the independent accounting firm, shall be the “Final Closing ConsiderationMonthly Fee”.
(e) If Limited Brands and ▇▇▇▇▇▇ agree that they will, and agree to cause their respective independent accountants and each Subsidiary to, cooperate and assist in the amount preparation of the Final Closing Consideration exceeds Settlement Statement and the amount calculation of the Closing Consideration calculated based on Actual Monthly Fee and in the Closing Financial Certificate conduct of the reviews and determinations identified by Section (such excess amountc), including without limitation, the “Positive Adjustment”), then then the amount of such Positive Adjustment will be added making available to the First Installment Paymentextent necessary of books, records, work papers and personnel for a period of at least twelve months following the termination of the Services provided pursuant to Schedule II.
(f) If the amount of the Closing Consideration calculated based on the Closing Financial Certificate Final Monthly Fee exceeds the amount of the Final Closing Consideration estimated monthly fee paid (the “Negative AdjustmentEstimated Monthly Fee”), then ▇▇▇▇▇▇ shall pay to Limited Brands an amount equal to the entire amount of such Negative Adjustment shall be recovered by Buyer via offset against which the First Installment Payment, and in Final Monthly Fee exceeds the event that after such offset a portion of Estimated Monthly Fee at the Negative Adjustment remains unpaidtime ▇▇▇▇▇▇ makes its next monthly payment for IT Services. If the Estimated Monthly Fee exceeds the Final Monthly Fee, then Buyer in its sole discretion may offset such remaining unpaid Limited Brands shall credit an amount against the Second Installment Payment or may require Seller to repay such amount to Buyer.
(g) Any payment made under this Section 2.8, equal to the maximum extent permitted entire amount by applicable Law, shall be treated which the Estimated Monthly Fee exceeds the Final Monthly Fee against any amounts owing to Limited Brands for all Tax purposes as an adjustment IT Services pursuant to the Total Considerationthis Schedule II.
Appears in 1 contract
Sources: Transition Services Agreement (New York & Company, Inc.)
True-Up. (a) No later than ninety (90) calendar days after A. It is understood between Seller and Purchaser that the Closing Date, Buyer shall prepare and deliver, or cause to be prepared and delivered, to Seller a certificate (the “Post-Closing Statement”), executed by an executive officer of Buyer, setting forth Buyer’s good faith calculation of as of the opening of business on the Closing Date: (i) the amount of the Company’s Cash; (ii) the amount of the Company’s Debt; and (iii) the amount of the Company’s Net Asset Balance; (iv) the amount of the Company’s unpaid Transaction Expenses, together with a calculation of the Purchase Price cannot be completed by the time of Closing Consideration based on and as such the foregoing amounts as well as reasonably detailed supporting documentation for such calculation.
(b) Seller shall have thirty (30) days following its receipt determination of the Post-Closing Statement (the “Review Period”) to review the same. On Purchase Price shall be ascertained on or before the expiration of the Review Period, Seller shall deliver to Buyer a written statement accepting or disputing the Post-Closing Statement. In the event that Seller shall dispute the Post-Closing Statement, such statement shall include a reasonably detailed itemization of Seller’s objections and the reasons therefor seven (such statement, a “Dispute Statement”). Any component of the Post-Closing Statement that is not disputed in a Dispute Statement shall be final and binding on the Parties and not subject to appeal. If Seller does not deliver a Dispute Statement to Buyer within the Review Period or delivers a statement accepting the Post-Closing Statement, the Post-Closing Statement shall be final and binding on the Parties and not subject to appeal. For clarity, any accounts receivable reflected in the Closing Financial Certificate that are not collected within seventy-five (75) calendar days after the Closing Date may be treated by Buyer as invalid in the Post-Closing Statement and such treatment may not be disputed by Seller in the Dispute Statement.
(c) If Seller delivers a Dispute Statement during the Review Period, Buyer and Seller shall promptly meet and attempt in good faith to resolve their differences with respect to the disputed items set forth in the Dispute Statement during the thirty (307) calendar days immediately following Buyer’s receipt the Closing Date ("True-Up Date"). On the True-Up Date, Purchaser shall deliver Seller good funds in an amount necessary to have, as of the Dispute StatementTrue-Up Date, delivered Seller the Purchase Price (except as contemplated by Section 5.B. below), or in the unlikely event the Purchase Price is less than the amount therefore delivered Seller, the amount of any excess shall be refunded to Purchaser by Seller's delivery of good funds in the appropriate amount. In the event Seller and Purchaser cannot agree upon the Purchase Price, any dispute shall be submitted to arbitration according to the provisions of Section 5.B.
B. If, by the True-Up Date, Seller and Purchaser are unable to agree to a purchase price for the Inventory, Purchaser shall have delivered to Seller at Closing the sum of money set forth in Section 3.B. and on the True-Up Date such longer period sum of money as Buyer is mutually agreed upon as then being owed and, with respect to all disputed items relating to the Inventory purchase price, submit, within ten (10) days following True-Up, for review and Seller resolution, such disputed items along with work papers, price sheets and other applicable documents and materials to a mutually acceptable "Big 6" accounting firm or, if such firm is unable or unwilling to act, to any other accounting firm selected as hereinafter provided. The charges of such firm (or any other firm selected as hereinafter provided) with respect to the services performed by it pursuant to this Section 5.B shall be apportioned by such firm as it may mutually agree (determine on the “Resolution Period”). Any such basis of each party bearing the expenses of that portion of the review that relates to disputed items that are mutually resolved not in writing by Buyer and Seller during favor of such party. If the Resolution Period above firm is not willing or able to act as provided in this Section 5.B., then for the purposes of resolving disputes under this Section 5.B. only, a firm of independent Certified Public Accountants shall be final selected by the then Chair-person of the Florida Association of Certified Public Accountants, or if such Chair-person is not willing or able to act, by the first in the order named of the following then officers of the Florida Association of Certified Public Accounts who is willing and able to act: President, Vice President (in order of seniority if more than one), Treasurer or Secretary. The decision of the arbitrating firm or individual as called for in this Section 5.B. shall be conclusive and binding on Seller and Purchaser for the Parties and not subject to appeal. If Buyer and Seller do not mutually resolve in writing all such purposes of determining the purchase price for the disputed items by the end of the Resolution Period, Buyer Inventory set forth in Exhibit "B". Purchaser and Seller shall submit all items remaining in dispute with respect to the Dispute Statement to an independent accounting firm (in each case, as Buyer and Seller shall reasonably agree) (the “Accounting Firm”) for review and resolution. The Accounting Firm shall act as an expert and not an arbitrator. The Accounting Firm shall determine only those items remaining in dispute between Buyer and Seller, and shall only be permitted or authorized to determine an amount with respect to any such disputed item that is within the range of the amount of such disputed item as proposed by Buyer in the Post-Closing Statement and the amount of such disputed item as proposed by Seller in the Dispute Statement. Each of Buyer and Seller shall (i) enter into a customary engagement letter with the Accounting Firm at the time such dispute is submitted to the Accounting Firm and otherwise cooperate with the Accounting Firm, (ii) have the opportunity to submit a written statement in support of their respective positions with respect to such disputed items, to provide supporting material to the Accounting Firm in defense of their respective positions with respect to such disputed items and to submit a written statement responding represent to the other Party’s position with respect to such disputed items and (iii) subject to customary confidentiality and indemnity agreements, provide the Accounting Firm with access to their respective books, records, personnel and representatives and such other information as the Accounting Firm may require in order to render its determination. The Accounting Firm shall be instructed to deliver to Buyer and Seller a written determination (such determination to include a worksheet setting forth all material calculations used in arriving at such determination and to be based solely on information provided to the Accounting Firm by Buyer and Seller) of the disputed items within thirty (30) calendar days of receipt of the disputed items, which determination shall be final and binding on the Parties and not subject to appeal. All fees and expenses relating to the work (if any) to be performed by the Accounting Firm will be allocated between Buyer, on the one hand, and Seller (on behalf of the Effective Time Holders), on the other hand, in the same proportion that the aggregate amount of the disputed items so submitted to the Accounting Firm that is unsuccessfully disputed by each such Party (as finally determined by the Accounting Firm) bears to the total disputed amount of such items so submitted. Such allocation calculation shall be made by the Accounting Firm as part of its determination.
(d) The Closing Consideration, calculated based on: (i) the amount of the Company’s Cash; (ii) the amount of the Company’s Debt; and (iii) the amount of the Company’s Net Asset Balance; (iv) the amount of the Company’s unpaid Transaction Expenses, each as deemed final and binding on the Parties pursuant to this Section 2.8, is referred to herein as the “Final Closing Consideration”.
(e) If the amount of the Final Closing Consideration exceeds the amount of the Closing Consideration calculated based on the Closing Financial Certificate (such excess amount, the “Positive Adjustment”), then then the amount of such Positive Adjustment will be added to the First Installment Payment.
(f) If the amount of the Closing Consideration calculated based on the Closing Financial Certificate exceeds the amount of the Final Closing Consideration (the “Negative Adjustment”), the amount of such Negative Adjustment shall be recovered by Buyer via offset against the First Installment Payment, and in the event that after such offset a portion of the Negative Adjustment remains unpaid, then Buyer in its sole discretion may offset such remaining unpaid amount against the Second Installment Payment or may require Seller to repay such amount to Buyer.
(g) Any payment made under this Section 2.8that, to the maximum extent permitted best of each such party's knowledge, the public accounting firm that will be recommended by applicable Law, shall each has not performed services that could be treated for all Tax purposes as an adjustment considered a conflict of interest to any arbitration work described in this Agreement. The use of arbitration in this Agreement is limited solely to the Total Consideration.purposes specifically set forth in this Section 5.B.
Appears in 1 contract
Sources: Agreement of Sale (Parts Source Inc)