(c)In the event that the Milestone Gross Profit is less than $12,000,000, no Milestone Payment shall be due and payable to the Seller.
(d)The Milestone Payment, if earned, shall be made and paid to Seller or its designee within thirty (30) days of the end of the Milestone Period. Purchaser shall provide the Seller Parties with a written accounting that sets forth the manner in which the Milestone Gross Profit was calculated and the basis for the determination of whether or not the Milestone Payment was earned. Purchaser shall keep complete and accurate records in sufficient detail to enable the Seller to calculate and determine the Milestone Gross Profit earned. Seller Parties and their representatives shall have the right to conduct at their discretion, following the end of such thirty (30) day period, an audit of all records of Purchaser and the Company to determine whether or not the Milestone Payment was earned. Purchaser and the Company each shall afford its full cooperation to the Seller Parties. If the parties do not agree upon the results of the audit, either party may submit the matter for dispute resolution proceedings in accordance with Section 8.4 and Exhibit C hereof. Upon final resolution of the matter, Seller Parties shall bear and pay the costs of the audit, unless it is finally determined that a Milestone Payment was due and underpaid by Purchaser, in which event Purchaser shall also reimburse Seller Parties their reasonable costs of audit. Any unpaid Milestone Payment shall be paid promptly upon conclusion of the audit with interest accruing from the first day following the end of such sixty (60) day period in an amount equal to the lesser of the prime rate reported in the Wall Street Journal on such date, or the maximum rate permitted by applicable law.
(e)If any Purchaser or subsidiary or the Company [***].
(f)Purchaser agrees that at all times from the date of Closing through the end of the Milestone Period that it will [***].
(g)Until the end of the Milestone Period, Purchaser shall provide the Seller a written report [***] of the Milestone Gross Profit generated during such period (each, an “Update Report”). Within [***] business days after delivery of an Update Report, if the Seller requests in writing a meeting with representatives of Purchaser to discuss such report, Purchaser shall make available for such a meeting one or more representatives (as determined by the Purchaser); provided, however that prior to the commencement of the Milestone Period, Seller shall not request more than [***] such meeting in [***].
(h)Notwithstanding anything to the contrary in this Section 1.5, in the event that, prior to the end of the Milestone Period (i) Purchaser commences any proceeding in bankruptcy or for dissolution, liquidation, winding-up, or other relief under state or federal bankruptcy laws (a “Bankruptcy Proceeding”); (ii) a Bankruptcy Proceeding is commenced against Purchaser, or a receiver or trustee is appointed for Purchaser, and such proceeding or appointment is not dismissed or discharged within sixty (60) days after its commencement; (iii) Purchaser is unable to, or admits in writing its inability to, pay its debts when they become due; or (iv) Purchaser makes an assignment for the benefit of creditors, or petitions or applies to any tribunal for the appointment of a custodian, receiver or trustee for it, then with respect to each of the foregoing clauses, the maximum amount of the Milestone Payment shall become due and payable immediately upon the occurrence of any such event.
1.6Working Capital Adjustment.
(a)The Company shall deliver to Purchaser an estimated balance sheet, including the Company’s good faith estimate of (i) the amount of Cash as of the Closing, (ii) the amount of Indebtedness outstanding as of the Closing, (iii) the Current Assets as of the Closing, (iv) the Current Liabilities as of the Closing, and (v) a statement setting forth the determination of the resulting amount (the
[*** ] = Certain confidential information contained in this document, marked by brackets, has been omitted and filed separately with the Securities and Exchange Commission pursuant to Rule 24b-2 of the Securities Exchange Act of 1934, as amended.