Closing Adjustments. (a) At least five (5) Business Days prior to the Closing Date, Vista Outdoor shall prepare and deliver to Parent a statement (the “Estimated Closing Statement”) setting forth Vista Outdoor’s good faith estimate of (i) Closing Cash (such estimate, “Estimated Closing Cash”), (ii) Closing Working Capital (such estimate, “Estimated Closing Working Capital”), (iii) Closing Debt (such estimate, “Estimated Closing Debt”), (iv) Transaction Expenses (such estimate, “Estimated Transaction Expenses”), (v) Closing Taxes (such estimate, “Estimated Closing Taxes”), (vi) Closing Transaction Tax Deductions (such estimate, “Estimated Closing Transaction Tax Deductions”), (vii) the Closing Non-Cash Debt (such estimate, “Estimated Closing Non-Cash Debt”) and (viii) the Estimated Closing Adjustment Amount, in each case, together with reasonably detailed schedules with respect to the determination thereof to support the estimates set forth in the Estimated Closing Statement. The Estimated Closing Statement shall be prepared in accordance with the terms of this Agreement, including the Accounting Principles. The Parties agree that the purpose of preparing the Estimated Closing Statement is to estimate the amounts of Closing Cash, Closing Working Capital, Closing Debt, Transaction Expenses, Closing Taxes, Closing Transaction Tax Deductions and the Closing Adjustment Amount in accordance with the terms of this Agreement, including the Accounting Principles. Vista Outdoor shall consider in good faith and implement all reasonable comments provided by Parent to the Estimated Closing Statement (including the components thereof) at least one Business Day prior to the Closing Date. (b) At least five (5) Business Days prior to Vista Outdoor’s delivery of the Estimated Closing Statement, and in any event at least ten (10) Business Days prior to the Closing Date, Vista Outdoor shall prepare and deliver to Parent a good faith non-binding, advisory draft of the Estimated Closing Statement (the “Draft Estimated Closing Statement”), including reasonably detailed schedules with respect to the determination thereof to support the estimates set forth therein. In furtherance of Vista Outdoor’s preparation of the Estimated Closing Statement, Vista Outdoor shall consider in good faith all reasonable comments provided to the Draft Estimated Closing Statement by Parent at least one Business Day prior to delivery of the Estimated Closing Statement. (c) Within ten (10) Business Days of the date of this Agreement, Vista Outdoor shall prepare and deliver to Parent a good faith non-binding, advisory draft of the Estimated Closing Statement, including reasonably detailed schedules with respect to the determination thereof to support the estimates set forth therein (an “Advisory Estimated Closing Statement”), assuming, for purposes of creating such Advisory Estimated Closing Statement, a Reference Time of 11:59 p.m. New York City time on September 30, 2024. Within ten (10) Business Days following October 31, 2024, Vista Outdoor shall prepare and deliver to Parent, an Advisory Estimated Closing Statement assuming, for purposes of creating such Advisory Estimated Closing Statement, a Reference Time of 11:59 p.m. New York City time on October 31, 2024. In furtherance of Vista Outdoor’s preparation of the Draft Estimated Closing Statement and the Estimated Closing Statement, Vista Outdoor shall consider in good faith all reasonable comments provided to the Advisory Estimated Closing Statements by Parent at least one (1) Business Day prior to delivery of the Draft Estimated Closing Statement. (d) As promptly as practicable, and in any event within the later of (x) thirty (30) days following the Closing Date and (y) five (5) Business Days prior to the consummation of the Revelyst Merger (if such merger is consummated) (the later of (x) and (y), the “Closing Statement Deadline”), Vista Outdoor and Revelyst shall cooperate in good faith and jointly prepare a statement (the “Closing Statement”) setting forth their joint good faith calculation of (i) Closing Cash, (ii) Closing Working Capital, (iii) Closing Debt, (iv) Transaction Expenses, (v) Closing Taxes, (vi) Closing Transaction Tax Deductions and (vii) the Closing Adjustment Amount, in each case, together with reasonably detailed schedules with respect to the determination thereof to support the calculations set forth in the Closing Statement. The Closing Statement shall be prepared in accordance with the terms of this Agreement, including the Accounting Principles. The Parties agree that the purpose of preparing the Closing Statement is to measure and determine the amount of Closing Cash, Closing Working Capital, Closing Debt, Transaction Expenses, Closing Taxes, Closing Transaction Tax Deductions and the Closing Adjustment Amount in accordance with the terms of this Agreement, including the Accounting Principles. Each of Vista Outdoor and Revelyst shall execute the Closing Statement to certify the calculations set forth therein and upon such certification the Closing Statement shall become final and binding upon the Parties; provided, that, notwithstanding anything to the contrary in this Agreement, in the event that Vista Outdoor and Revelyst do not agree upon and execute the Closing Statement by the Closing Statement Deadline, then the Estimated Closing Statement shall be deemed to be the Closing Statement for all purposes under this Agreement and neither Party nor their respective Affiliates shall have any further obligation pursuant to this Section 2.06. (e) In connection with the preparation of the Closing Statement, Vista Outdoor shall, subject to reasonable advance written request (email being sufficient), provide Revelyst and its Representatives with reasonable access during normal business hours, and in such a manner as to not interfere with the normal operations of Vista Outdoor and each other member of the Vista Outdoor Group, to the Records and relevant advisors (subject to the execution of any required customary access letters), personnel and properties of Vista Outdoor and each other member of the Vista Outdoor Group to the extent reasonably relevant to the preparation of the Closing Statement; provided that Revelyst shall, and shall cause its Representatives to, keep any nonpublic information shared with it confidential. (f) Within three (3) Business Days after the Closing Statement becomes final and binding upon the Parties in accordance with this Section 2.06, if the Closing Adjustment Amount is: (i) greater than the Estimated Closing Adjustment Amount, then Vista Outdoor shall pay Revelyst an amount of cash equal to such difference; (ii) less than the Estimated Closing Adjustment Amount, then Revelyst shall pay Vista Outdoor an amount of cash equal to such difference; or (iii) equal to the Estimated Closing Adjustment Amount, then neither Party shall have any obligation to make a payment to the other Party in respect thereof. (g) Each Party acknowledges that the agreements contained in this Section 2.06 are an integral part of the Transactions, and that, without these agreements, the other Party would not have entered into this Agreement and each other Transaction Document to which it is a party. Accordingly, if a Party fails to promptly pay any amount due pursuant to this Section 2.06 (such Party, the “Defaulting Party”), and, in order to obtain payment of such amount, the other Party commences a legal action which results in an order against the Defaulting Party for such amount, or any portion thereof, the Defaulting Party shall pay to the other Party such other Party’s out-of-pocket, reasonable and documented costs and expenses (including attorneys’ fees) incurred in connection with such legal action, together with interest on such due and unpaid amounts pursuant to this Section 2.06 at a rate equal to (i) the prime rate as published in The Wall Street Journal in effect on the date such amount was required to be paid plus (ii) 2% through the date such payment was actually received. (h) Vista Outdoor agrees that, from the Closing Date through the date that the Closing Adjustment Amount is finally determined in accordance with this Section 2.06, it shall not, and shall cause each other member of the Vista Outdoor Group not to, take any action with respect to any accounting books, records, policies or procedures on which the Closing Statement is based that would impede or delay the final determination of the Closing Adjustment Amount. (i) Notwithstanding anything to the contrary in this Agreement or any investigation or examination conducted, or any knowledge possessed or acquired, by or on behalf of Vista Outdoor or Revelyst, the process set forth in this Section 2.06 shall be the sole and exclusive remedy between the Parties for any disputes related to the items required to be included or reflected in the calculation of Closing Cash, Closing Working Capital, Closing Debt, Transaction Expenses, Closing Taxes, Closing Transaction Tax Deductions and the Closing Adjustment Amount. (j) Without the prior written consent of ▇▇▇▇▇▇ ▇▇▇▇▇▇, none of the time periods set forth in this Section 2.06 shall be extended or waived by any Party. For the avoidance of doubt, from and after the closing of the Revelyst Merger, neither Olibre Parent, Revelyst nor any of their respective Subsidiaries shall have any obligation with respect to this Section 2.06. Each Party agrees that Olibre Parent is a third party beneficiary of this Section 2.06(j). (k) For the purposes of this Agreement:
Appears in 2 contracts
Sources: Separation Agreement (Vista Outdoor Inc.), Separation Agreement (Revelyst, Inc.)
Closing Adjustments. (a) At least five (5) Business Days prior to the Closing Date, Vista Outdoor shall prepare and deliver to Parent a statement (the “Estimated Closing Statement”) setting forth Vista Outdoor’s good faith estimate of (i) Closing Cash (such estimate, “Estimated Closing Cash”), (ii) Closing Working Capital (such estimate, “Estimated Closing Working Capital”), (iii) Closing Debt (such estimate, “Estimated Closing Debt”), (iv) Transaction Expenses (such estimate, “Estimated Transaction Expenses”), (v) Closing Taxes (such estimate, “Estimated Closing Taxes”), (vi) Closing Transaction Tax Deductions (such estimate, “Estimated Closing Transaction Tax Deductions”), (vii) the Closing Non-Cash Debt (such estimate, “Estimated Closing Non-Cash Debt”) and (viii) the Estimated Closing Adjustment Amount, in each case, together with reasonably detailed schedules with respect to the determination thereof to support the estimates The items set forth in the Estimated Closing Statement. The Estimated Closing Statement this Section 3 shall be prepared apportioned at the Closing by payment of the net amount of such apportionments to the Seller in accordance with the terms manner set forth herein for the payment of the Purchase Price if the net apportionment is in favor of the Seller or by a credit against the Purchase Price if the net apportionment is in favor of Purchaser. However, if any of the items subject to apportionment under the foregoing provisions of this Agreement, including the Accounting Principles. The Parties agree that the purpose of preparing the Estimated Closing Statement is to estimate the amounts of Closing Cash, Closing Working Capital, Closing Debt, Transaction Expenses, Closing Taxes, Closing Transaction Tax Deductions and Section 3 cannot be apportioned at the Closing Adjustment Amount because of the unavailability of the information necessary to compute such apportionment, or if any errors or omissions in accordance with computing apportionments at the terms of this Agreement, including the Accounting Principles. Vista Outdoor shall consider in good faith and implement all reasonable comments provided by Parent Closing are discovered subsequent to the Estimated Closing Statement (including the components thereof) at least one Business Day prior to the Closing Date.
(b) At least five (5) Business Days prior to Vista Outdoor’s delivery of the Estimated Closing StatementClosing, then such item shall be reapportioned and in any event at least ten (10) Business Days prior to the Closing Date, Vista Outdoor shall prepare such errors and deliver to Parent a good faith non-binding, advisory draft of the Estimated Closing Statement (the “Draft Estimated Closing Statement”), including reasonably detailed schedules with respect to the determination thereof to support the estimates set forth therein. In furtherance of Vista Outdoor’s preparation of the Estimated Closing Statement, Vista Outdoor shall consider in good faith all reasonable comments provided to the Draft Estimated Closing Statement by Parent at least one Business Day prior to delivery of the Estimated Closing Statement.
(c) Within ten (10) Business Days of the date of this Agreement, Vista Outdoor shall prepare and deliver to Parent a good faith non-binding, advisory draft of the Estimated Closing Statement, including reasonably detailed schedules with respect to the determination thereof to support the estimates set forth therein (an “Advisory Estimated Closing Statement”), assuming, for purposes of creating such Advisory Estimated Closing Statement, a Reference Time of 11:59 p.m. New York City time on September 30, 2024. Within ten (10) Business Days following October 31, 2024, Vista Outdoor shall prepare and deliver to Parent, an Advisory Estimated Closing Statement assuming, for purposes of creating such Advisory Estimated Closing Statement, a Reference Time of 11:59 p.m. New York City time on October 31, 2024. In furtherance of Vista Outdoor’s preparation of the Draft Estimated Closing Statement and the Estimated Closing Statement, Vista Outdoor shall consider in good faith all reasonable comments provided to the Advisory Estimated Closing Statements by Parent at least one (1) Business Day prior to delivery of the Draft Estimated Closing Statement.
(d) As promptly omissions corrected as practicable, and in any event within the later of (x) thirty (30) days following soon as practicable after the Closing Date and (y) five (5) Business Days prior the proper party reimbursed, which obligation shall survive the Closing for a period of one year after the Closing Date. Notwithstanding any of the foregoing provisions of this Section 3.5 to the consummation of the Revelyst Merger (if such merger is consummated) (the later of (x) and (y)contrary, the “Closing Statement Deadline”), Vista Outdoor Purchaser and Revelyst shall cooperate in good faith and jointly prepare a statement (the “Closing Statement”) setting forth their joint good faith calculation of (i) Closing Cash, (ii) Closing Working Capital, (iii) Closing Debt, (iv) Transaction Expenses, (v) Closing Taxes, (vi) Closing Transaction Tax Deductions and (vii) Seller agree that the Closing Adjustment Amount, in each case, together with reasonably detailed schedules with respect to the determination thereof to support the calculations one year limitation set forth in this Section 3.5 shall not apply to the parties' obligations under Sections 3.1 and 3.2 and that such obligations shall survive the Closing Statementforever. The Closing Statement Seller shall be prepared in accordance with the terms of this Agreement, including the Accounting Principles. The Parties agree that the purpose of preparing the Closing Statement is to measure and determine the amount of Closing Cash, Closing Working Capital, Closing Debt, Transaction Expenses, Closing Taxes, Closing Transaction Tax Deductions and the Closing Adjustment Amount in accordance with the terms of this Agreement, including the Accounting Principles. Each of Vista Outdoor and Revelyst shall execute the Closing Statement to certify the calculations set forth therein and upon such certification the Closing Statement shall become final and binding upon the Parties; provided, that, notwithstanding anything to the contrary in this Agreement, pay in the event that Vista Outdoor and Revelyst do not agree upon and execute the Closing Statement by the Closing Statement Deadline, then the Estimated Closing Statement shall be deemed to be the Closing Statement for all purposes under this Agreement and neither Party nor their respective Affiliates shall have ordinary course any further obligation pursuant to this Section 2.06.
(e) In connection with the preparation of the Closing Statement, Vista Outdoor shall, subject to reasonable advance written request (email being sufficient), provide Revelyst and its Representatives with reasonable access during normal business hours, and in such a manner accounts payable which are listed on Schedule 2 hereto as to not interfere with the normal operations of Vista Outdoor and each other member of the Vista Outdoor Group, to the Records and relevant advisors (subject to the execution of any required customary access letters), personnel and properties of Vista Outdoor and each other member of the Vista Outdoor Group to the extent reasonably relevant to the preparation of the Closing Statement; provided that Revelyst shall, and shall cause its Representatives to, keep any nonpublic information shared with it confidential.
(f) Within three (3) Business Days after the Closing Statement becomes final and binding upon the Parties in accordance with this Section 2.06, if the Closing Adjustment Amount is:
(i) greater than the Estimated Closing Adjustment Amount, then Vista Outdoor shall pay Revelyst an amount of cash equal to such difference;
(ii) less than the Estimated Closing Adjustment Amount, then Revelyst shall pay Vista Outdoor an amount of cash equal to such difference; or
(iii) equal to the Estimated Closing Adjustment Amount, then neither Party shall have any obligation to make a payment to the other Party in respect thereof.
(g) Each Party acknowledges that the agreements contained in this Section 2.06 are an integral part of the Transactions, and that, without these agreements, the other Party would not have entered into this Agreement and each other Transaction Document to which it is a partyExcluded Property. Accordingly, if a Party fails to promptly pay any amount due pursuant to this Section 2.06 (such Party, the “Defaulting Party”), and, in order to obtain payment of such amount, the other Party commences a legal action which results in an order against the Defaulting Party for such amount, or any portion thereof, the Defaulting Party shall pay to the other Party such other Party’s out-of-pocket, reasonable and documented costs and expenses (including attorneys’ fees) incurred in connection with such legal action, together with interest on such due and unpaid amounts pursuant to this Section 2.06 at a rate equal to (i) the prime rate as published in The Wall Street Journal in effect on the date such amount was required to be paid plus (ii) 2% through the date such payment was actually received.
(h) Vista Outdoor agrees that, from the Closing Date through the date that the Closing Adjustment Amount is finally determined in accordance with this Section 2.06, it shall not, and shall cause each other member of the Vista Outdoor Group not to, take any action with respect to any accounting books, records, policies or procedures on which the Closing Statement is based that would impede or delay the final determination of the Closing Adjustment Amount.
(i) Due Diligence Period. Notwithstanding anything to the contrary contained herein, the Purchaser shall have a forty-five (45) day period commencing on the date hereof (the "Due Diligence Period") to examine title to the Property, to inspect the physical and financial condition of the Property and to review the Property Information. Seller shall, within ten (10) days after Purchaser's written request, deliver to Purchaser Property Information, requested with adequate specificity by Purchaser, to the extent such Property Information is in this Agreement the Seller's possession. Purchaser shall be responsible for the cost of locating, reproducing and forwarding such Property Information to Purchaser. Neither Purchaser nor the Purchaser's Representatives shall contact any governmental authority or any investigation of the Seller's or examination conductedthe Acquired Partnership's tenants, vendors, employees, consultants or contractors prior to the Closing without (i) providing one (1) day's advance notice (which notice may be telephonic) of each such proposed contact to the Seller, and (ii) providing the Seller and/or its representatives an opportunity to be present at the time of any knowledge possessed or acquired, by or on behalf of Vista Outdoor or Revelystsuch contact. Access to the Property. During the Due Diligence Period, the process set forth in this Section 2.06 Purchaser and the Purchaser's Representatives shall have the right to enter upon the Property and the Buildings for the sole purpose of inspecting the Property and the Buildings and making surveys, soil borings, engineering tests and other investigations, inspections and tests (collectively, "Investigations"), provided (i) the Purchaser shall give the Seller not less than three (3) business days' prior written notice before each entry, (ii) the first such notice shall include sufficient information to permit the Seller to review the scope of the proposed Investigations, and (iii) neither the Purchaser nor the Purchaser's Representatives shall permit any borings, drillings or samplings to be done on the Property or the Buildings without the Seller's prior written consent. Any entry upon the Property and all Investigations shall be during the Seller's normal business hours and at the sole risk and exclusive remedy between expense of the Parties for any disputes related to the items required to be included or reflected in the calculation of Closing Cash, Closing Working Capital, Closing Debt, Transaction Expenses, Closing Taxes, Closing Transaction Tax Deductions Purchaser and the Closing Adjustment Amount.
(j) Without Purchaser's Representatives, and shall not interfere with the prior written consent of ▇▇▇▇▇▇ ▇▇▇▇▇▇, none activities on or about the Buildings or Property of the time periods set forth in this Section 2.06 shall be extended Seller or waived by any Partythe Acquired Partnership, their tenants and their employees and invitees. For the avoidance of doubt, from and after the closing of the Revelyst Merger, neither Olibre Parent, Revelyst nor any of their respective Subsidiaries shall have any obligation with respect to this Section 2.06. Each Party agrees that Olibre Parent is a third party beneficiary of this Section 2.06(j).
(k) For the purposes of this AgreementThe Purchaser shall:
Appears in 2 contracts
Sources: Purchase and Sale Agreement (Dean Witter Realty Yield Plus L P), Purchase and Sale Agreement (Dean Witter Realty Yield Plus Ii Lp)
Closing Adjustments. Three (a) At least five (53) Business Days prior to the Closing Date, Vista Outdoor Seller shall prepare and deliver to Parent a statement Purchaser its good faith estimate of the Retained Working Capital as of March 31, 2007 (the “Estimated Closing StatementRetained Working Capital Calculation”), which shall be based upon and reconciled to the Unaudited March Balance Sheet. Within two (2) Business Days following receipt of the Estimated Retained Working Capital Calculation, Purchaser may object in good faith to the Estimated Retained Working Capital Calculation by giving written notice to Seller setting forth Vista Outdoor’s good faith estimate of in reasonable detail: (i) Closing Cash the specific amount to which Purchaser objects (such estimate, the “Estimated Closing CashObjection Amount”), (ii) Closing Working Capital the reasons for Purchaser’s objection (such estimate, “Estimated Closing Working Capital”), which shall be based on GAAP) and (iii) Closing Debt Purchaser’s proposed adjustments to Seller’s calculation (such estimate, “Estimated Closing DebtPurchaser’s Estimate Objection”). If Purchaser fails to object to the Estimated Retained Working Capital Calculation within such two (2) Business Day period, (iv) Transaction Expenses (such estimate, “Purchaser will be deemed to have conclusively agreed with and shall be bound by the Estimated Transaction Expenses”Retained Working Capital Calculation for the purposes of Section 3.3.1(a)(i), (vand the Purchase Price will be adjusted as set forth in Section 3.3.1(a)(i) Closing Taxes (such estimatebased on the Estimated Retained Working Capital Calculation. If Purchaser objects to the Estimated Retained Working Capital Calculation, “Estimated Closing Taxes”), (vi) Closing Transaction Tax Deductions (such estimate, “Estimated Closing Transaction Tax Deductions”), (vii) Seller and Purchaser shall confer in good faith following Seller’s receipt of Purchaser’s Estimate Objection for the period up to the Closing Non-Cash Debt (such estimate, the “Estimated Closing Non-Cash DebtEstimate Resolution Period”) to attempt to reach agreement regarding such Objection Amount. If Seller and (viiiPurchaser reach agreement during the Estimate Resolution Period, the Purchase Price will be adjusted as set forth in Section 3.3.1(a)(i) based on the agreed upon Estimated Closing Adjustment Amount, in each case, together with reasonably detailed schedules Retained Working Capital Calculation. If Seller and Purchaser are unable to reach agreement during the Estimate Resolution Period with respect to the determination thereof to support Objection Amount, (a) the estimates Purchase Price will be adjusted as set forth in Section 3.3.1(a)(i) based on the Estimated Retained Working Capital Calculation, excluding the Objection Amount adjusted to reflect the results of the parties’ good faith negotiations, at the Closing Statement. The Estimated and (b) Seller and Purchaser will resolve any outstanding disagreement regarding the Objection Amount following the Closing Statement shall be prepared in accordance with the terms of this Agreement, including the Accounting Principles. The Parties agree that the purpose of preparing the Estimated Closing Statement is to estimate the amounts of Closing Cash, Closing Working Capital, Closing Debt, Transaction Expenses, Closing Taxes, Closing Transaction Tax Deductions and the Closing Adjustment Amount in accordance with the terms of this Agreement, including the Accounting Principles. Vista Outdoor shall consider in good faith and implement all reasonable comments provided by Parent to the Estimated Closing Statement (including the components thereof) at least one Business Day prior to the Closing Date.
(b) At least five (5) Business Days prior to Vista Outdoor’s delivery of the Estimated Closing Statement, and in any event at least ten (10) Business Days prior to the Closing Date, Vista Outdoor shall prepare and deliver to Parent a good faith non-binding, advisory draft of the Estimated Closing Statement (the “Draft Estimated Closing Statement”), including reasonably detailed schedules with respect to the determination thereof to support the estimates set forth therein. In furtherance of Vista Outdoor’s preparation of the Estimated Closing Statement, Vista Outdoor shall consider in good faith all reasonable comments provided to the Draft Estimated Closing Statement by Parent at least one Business Day prior to delivery of the Estimated Closing Statement.
(c) Within ten (10) Business Days of the date of this Agreement, Vista Outdoor shall prepare and deliver to Parent a good faith non-binding, advisory draft of the Estimated Closing Statement, including reasonably detailed schedules with respect to the determination thereof to support the estimates set forth therein (an “Advisory Estimated Closing Statement”), assuming, for purposes of creating such Advisory Estimated Closing Statement, a Reference Time of 11:59 p.m. New York City time on September 30, 2024. Within ten (10) Business Days following October 31, 2024, Vista Outdoor shall prepare and deliver to Parent, an Advisory Estimated Closing Statement assuming, for purposes of creating such Advisory Estimated Closing Statement, a Reference Time of 11:59 p.m. New York City time on October 31, 2024. In furtherance of Vista Outdoor’s preparation of the Draft Estimated Closing Statement and the Estimated Closing Statement, Vista Outdoor shall consider in good faith all reasonable comments provided to the Advisory Estimated Closing Statements by Parent at least one (1) Business Day prior to delivery of the Draft Estimated Closing Statement.
(d) As promptly as practicable, and in any event within the later of (x) thirty (30) days following the Closing Date and (y) five (5) Business Days prior to the consummation of the Revelyst Merger (if such merger is consummated) (the later of (x) and (y), the “Closing Statement Deadline”), Vista Outdoor and Revelyst shall cooperate in good faith and jointly prepare a statement (the “Closing Statement”) setting forth their joint good faith calculation of (i) Closing Cash, (ii) Closing Working Capital, (iii) Closing Debt, (iv) Transaction Expenses, (v) Closing Taxes, (vi) Closing Transaction Tax Deductions and (vii) the Closing Adjustment Amount, in each case, together with reasonably detailed schedules with respect to the determination thereof to support the calculations procedures set forth in the Closing Statement. The Closing Statement shall be prepared in accordance with the terms of this Agreement, including the Accounting Principles. The Parties agree that the purpose of preparing the Closing Statement is to measure Section 3.2.1(a)(ii) and determine the amount of Closing Cash, Closing Working Capital, Closing Debt, Transaction Expenses, Closing Taxes, Closing Transaction Tax Deductions and the Closing Adjustment Amount in accordance with the terms of this Agreement, including the Accounting Principles. Each of Vista Outdoor and Revelyst shall execute the Closing Statement to certify the calculations set forth therein and upon such certification the Closing Statement shall become final and binding upon the Parties; provided, that, notwithstanding anything to the contrary in this Agreement, in the event that Vista Outdoor and Revelyst do not agree upon and execute the Closing Statement by the Closing Statement Deadline, then the Estimated Closing Statement shall be deemed to be the Closing Statement for all purposes under this Agreement and neither Party nor their respective Affiliates shall have any further obligation pursuant to this Section 2.06.
(e) In connection with the preparation of the Closing Statement, Vista Outdoor shall, subject to reasonable advance written request (email being sufficient3.2.2(a), provide Revelyst and its Representatives with reasonable access during normal business hours, and in such a manner as to not interfere with the normal operations of Vista Outdoor and each other member of the Vista Outdoor Group, to the Records and relevant advisors (subject to the execution of any required customary access letters), personnel and properties of Vista Outdoor and each other member of the Vista Outdoor Group to the extent reasonably relevant to the preparation of the Closing Statement; provided that Revelyst shall, and shall cause its Representatives to, keep any nonpublic information shared with it confidentialapplicable.
(f) Within three (3) Business Days after the Closing Statement becomes final and binding upon the Parties in accordance with this Section 2.06, if the Closing Adjustment Amount is:
(i) greater than the Estimated Closing Adjustment Amount, then Vista Outdoor shall pay Revelyst an amount of cash equal to such difference;
(ii) less than the Estimated Closing Adjustment Amount, then Revelyst shall pay Vista Outdoor an amount of cash equal to such difference; or
(iii) equal to the Estimated Closing Adjustment Amount, then neither Party shall have any obligation to make a payment to the other Party in respect thereof.
(g) Each Party acknowledges that the agreements contained in this Section 2.06 are an integral part of the Transactions, and that, without these agreements, the other Party would not have entered into this Agreement and each other Transaction Document to which it is a party. Accordingly, if a Party fails to promptly pay any amount due pursuant to this Section 2.06 (such Party, the “Defaulting Party”), and, in order to obtain payment of such amount, the other Party commences a legal action which results in an order against the Defaulting Party for such amount, or any portion thereof, the Defaulting Party shall pay to the other Party such other Party’s out-of-pocket, reasonable and documented costs and expenses (including attorneys’ fees) incurred in connection with such legal action, together with interest on such due and unpaid amounts pursuant to this Section 2.06 at a rate equal to (i) the prime rate as published in The Wall Street Journal in effect on the date such amount was required to be paid plus (ii) 2% through the date such payment was actually received.
(h) Vista Outdoor agrees that, from the Closing Date through the date that the Closing Adjustment Amount is finally determined in accordance with this Section 2.06, it shall not, and shall cause each other member of the Vista Outdoor Group not to, take any action with respect to any accounting books, records, policies or procedures on which the Closing Statement is based that would impede or delay the final determination of the Closing Adjustment Amount.
(i) Notwithstanding anything to the contrary in this Agreement or any investigation or examination conducted, or any knowledge possessed or acquired, by or on behalf of Vista Outdoor or Revelyst, the process set forth in this Section 2.06 shall be the sole and exclusive remedy between the Parties for any disputes related to the items required to be included or reflected in the calculation of Closing Cash, Closing Working Capital, Closing Debt, Transaction Expenses, Closing Taxes, Closing Transaction Tax Deductions and the Closing Adjustment Amount.
(j) Without the prior written consent of ▇▇▇▇▇▇ ▇▇▇▇▇▇, none of the time periods set forth in this Section 2.06 shall be extended or waived by any Party. For the avoidance of doubt, from and after the closing of the Revelyst Merger, neither Olibre Parent, Revelyst nor any of their respective Subsidiaries shall have any obligation with respect to this Section 2.06. Each Party agrees that Olibre Parent is a third party beneficiary of this Section 2.06(j).
(k) For the purposes of this Agreement:
Appears in 2 contracts
Sources: Asset Purchase Agreement (Wireless Facilities Inc), Asset Purchase Agreement (LCC International Inc)
Closing Adjustments. (a) At least five (5) Business Days prior to the Closing Date, Vista Outdoor shall prepare and deliver to Parent a statement (the “Estimated Closing Statement”) setting forth Vista Outdoor’s good faith estimate of (i) Closing Cash (such estimate, “Estimated Closing Cash”), (ii) Closing Working Capital (such estimate, “Estimated Closing Working Capital”), (iii) Closing Debt (such estimate, “Estimated Closing Debt”), (iv) Transaction Expenses (such estimate, “Estimated Transaction Expenses”), (v) Closing Taxes (such estimate, “Estimated Closing Taxes”), (vi) Closing Transaction Tax Deductions (such estimate, “Estimated Closing Transaction Tax Deductions”), (vii) the Closing Non-Cash Debt (such estimate, “Estimated Closing Non-Cash Debt”) and (viii) the Estimated Closing Adjustment Amount, in each case, together with reasonably detailed schedules with respect to the determination thereof to support the estimates set forth in the Estimated Closing Statement. The Estimated Closing Statement shall be prepared in accordance with the terms of this Agreement, including the Accounting Principles. The Parties agree that the purpose of preparing the Estimated Closing Statement is to estimate the amounts of Closing Cash, Closing Working Capital, Closing Debt, Transaction Expenses, Closing Taxes, Closing Transaction Tax Deductions and the Closing Adjustment Amount in accordance with the terms of this Agreement, including the Accounting Principles. Vista Outdoor shall consider in good faith and implement all reasonable comments provided by Parent to the Estimated Closing Statement (including the components thereof) at least Not less than one Business Day prior to the Closing Date.
(b) At least five (5) Business Days prior to Vista Outdoor’s delivery of the Estimated Closing StatementClosing, and in any event at least ten (10) Business Days prior to the Closing Date, Vista Outdoor Seller's Representative shall prepare and deliver to Parent Buyer a statement (the "Estimated Closing Statement") setting forth his good faith non-bindingestimate of (A) Closing Indebtedness other than Assumed Indebtedness (the "Estimated Closing Indebtedness") and (B) Effective Time Working Capital (the "Estimated Effective Time Working Capital"), advisory draft which statement will be calculated in the manner consistent with the Target Companies' Financial Statements and prior periods, and which will contain an estimated consolidated balance sheet of the Target Companies as of the Effective Time (without giving effect to the transactions contemplated herein other than the payment of Indebtedness contemplated by Section 2.03(c)), calculations of Estimated Closing Indebtedness and Estimated Effective Time Working Capital, and a certificate of an officer of the Company that the Estimated Closing Statement was prepared (x) in accordance with GAAP (with the “Draft Estimated Closing Statement”), including reasonably detailed schedules with respect to the determination thereof to support the estimates exceptions set forth therein. In furtherance on Section 3.06 of Vista Outdoor’s the Disclosure Schedule) applied using the same accounting methods, practices, principles, policies and procedures, with consistent classifications, judgments and valuation and estimation methodologies that were used in the preparation of the Estimated Closing Statement, Vista Outdoor shall consider in good faith all reasonable comments provided to Interim Balance Sheet for the Draft Estimated Closing Statement by Parent at least one Business Day prior to delivery of the Estimated Closing Statement.
(c) Within ten (10) Business Days of the date of this Agreement, Vista Outdoor shall prepare and deliver to Parent a good faith non-binding, advisory draft of the Estimated Closing Statement, including reasonably detailed schedules with respect to the determination thereof to support the estimates set forth therein (an “Advisory Estimated Closing Statement”), assuming, for purposes of creating such Advisory Estimated Closing Statement, a Reference Time of 11:59 p.m. New York City time on September 30, 2024. Within ten (10) Business Days following October 31, 2024, Vista Outdoor shall prepare and deliver to Parent, an Advisory Estimated Closing Statement assuming, for purposes of creating such Advisory Estimated Closing Statement, a Reference Time of 11:59 p.m. New York City time on October 31, 2024. In furtherance of Vista Outdoor’s preparation of the Draft Estimated Closing Statement and the Estimated Closing Statement, Vista Outdoor shall consider in good faith all reasonable comments provided to the Advisory Estimated Closing Statements by Parent at least one (1) Business Day prior to delivery of the Draft Estimated Closing Statement.
(d) As promptly as practicable, and in any event within the later of (x) thirty (30) days following the Closing Date most recent fiscal year end and (y) five (5) Business Days prior to the consummation of the Revelyst Merger (as if such merger is consummated) (the later of (x) and (y), the “Estimated Closing Statement Deadline”), Vista Outdoor and Revelyst shall cooperate in good faith and jointly prepare was being prepared as of a statement (the “Closing Statement”) setting forth their joint good faith calculation of (i) Closing Cash, fiscal year end.
(ii) Closing If the Estimated Effective Time Working Capital is between 90% and 110% of Target Working Capital, then there will be no increase or decrease in the Closing Payment with respect to Target Working Capital and the Closing Adjustment, and the Closing Payment will be decreased by the amount, if any, of Estimated Closing Indebtedness. If Estimated Effective Time Working Capital is greater than 110% of Target Working Capital, then the Closing Payment will be adjusted as follows: the Closing Payment will be increased by the amount of the Estimated Effective Time Working Capital in excess of 110% of Target Working Capital and decreased by the Estimated Closing Indebtedness. If Estimated Effective Time Working Capital is less than 90% of Target Working Capital, then the Purchase Price will be adjusted as follows: the Purchase Price will be decreased by the amount by which Estimated Effective Time Working Capital falls below 90% of Target Working Capital and further decreased by the Estimated Closing Indebtedness.
(iii) Closing Debt, (iv) Transaction Expenses, (v) Closing Taxes, (vi) Closing Transaction Tax Deductions and (vii) the Closing Adjustment Amount, in each case, together with reasonably detailed schedules with respect to the determination thereof to support If the calculations set forth in this paragraph result in a reduction in the Closing Statement. The Closing Statement Purchase Price, then the principal balance of the Buyer Parent Note shall be prepared in accordance with the terms of this Agreement, including the Accounting Principles. The Parties agree that the purpose of preparing the Closing Statement is to measure and determine reduced by the amount of Closing Cash, Closing Working Capital, Closing Debt, Transaction Expenses, Closing Taxes, Closing Transaction Tax Deductions and the Closing Adjustment Amount in accordance with the terms of this Agreement, including the Accounting Principles. Each of Vista Outdoor and Revelyst shall execute the Closing Statement to certify Payment reduction.
(iv) If the calculations set forth therein and upon such certification the Closing Statement shall become final and binding upon the Parties; provided, that, notwithstanding anything to the contrary in this Agreement, paragraph result in an increase in the event that Vista Outdoor and Revelyst do not agree upon and execute amount of the Closing Statement by the Closing Statement DeadlinePurchase Price, then the Estimated Closing Statement shall be deemed to be the Closing Statement for all purposes under this Agreement and neither Party nor their respective Affiliates shall have any further obligation pursuant to this Section 2.06.
(e) In connection with the preparation of the Closing Statement, Vista Outdoor shall, subject to reasonable advance written request (email being sufficient), provide Revelyst and its Representatives with reasonable access during normal business hours, and in such a manner as to not interfere with the normal operations of Vista Outdoor and each other member of the Vista Outdoor Group, to the Records and relevant advisors (subject to the execution of any required customary access letters), personnel and properties of Vista Outdoor and each other member of the Vista Outdoor Group to the extent reasonably relevant to the preparation of the Closing Statement; provided that Revelyst shall, and shall cause its Representatives to, keep any nonpublic information shared with it confidential.
(f) Within three (3) Business Days after the Closing Statement becomes final and binding upon the Parties in accordance with this Section 2.06, if the Closing Adjustment Amount is:
(i) greater than the Estimated Closing Adjustment Amount, then Vista Outdoor shall pay Revelyst an amount of Company may either distribute cash equal to the increase immediately prior to Closing to Seller or if such difference;
(ii) less than the Estimated Closing Adjustment Amountamount is not distributed prior to Closing, then Revelyst shall pay Vista Outdoor an amount of cash equal to such difference; or
(iii) equal to the Estimated Closing Adjustment Amount, then neither Party shall have any obligation to make a payment to the other Party in respect thereof.
(g) Each Party acknowledges that the agreements contained in this Section 2.06 are an integral part of the Transactions, and that, without these agreements, the other Party would not have entered into this Agreement and each other Transaction Document to which it is a party. Accordingly, if a Party fails to promptly pay any amount due pursuant to this Section 2.06 (such Party, the “Defaulting Party”), and, in order to obtain payment of Payment will be increased by such amount, the other Party commences a legal action which results in an order against the Defaulting Party for such amount, or any portion thereof, the Defaulting Party shall pay to the other Party such other Party’s out-of-pocket, reasonable and documented costs and expenses (including attorneys’ fees) incurred in connection with such legal action, together with interest on such due and unpaid amounts pursuant to this Section 2.06 at a rate equal to (i) the prime rate as published in The Wall Street Journal in effect on the date such amount was required to be paid plus (ii) 2% through the date such payment was actually received.
(h) Vista Outdoor agrees that, from the Closing Date through the date that the Closing Adjustment Amount is finally determined in accordance with this Section 2.06, it shall not, and shall cause each other member of the Vista Outdoor Group not to, take any action with respect to any accounting books, records, policies or procedures on which the Closing Statement is based that would impede or delay the final determination of the Closing Adjustment Amount.
(i) Notwithstanding anything to the contrary in this Agreement or any investigation or examination conducted, or any knowledge possessed or acquired, by or on behalf of Vista Outdoor or Revelyst, the process set forth in this Section 2.06 shall be the sole and exclusive remedy between the Parties for any disputes related to the items required to be included or reflected in the calculation of Closing Cash, Closing Working Capital, Closing Debt, Transaction Expenses, Closing Taxes, Closing Transaction Tax Deductions and the Closing Adjustment Amount.
(j) Without the prior written consent of ▇▇▇▇▇▇ ▇▇▇▇▇▇, none of the time periods set forth in this Section 2.06 shall be extended or waived by any Party. For the avoidance of doubt, from and after the closing of the Revelyst Merger, neither Olibre Parent, Revelyst nor any of their respective Subsidiaries shall have any obligation with respect to this Section 2.06. Each Party agrees that Olibre Parent is a third party beneficiary of this Section 2.06(j).
(k) For the purposes of this Agreement:
Appears in 1 contract
Sources: Stock Purchase Agreement (Turning Point Brands, Inc.)
Closing Adjustments. (a) At least five (5) Business Days prior to Except as otherwise provided herein, the Closing Date, Vista Outdoor shall prepare and deliver to Parent a statement (the “Estimated Closing Statement”) setting forth Vista Outdoor’s good faith estimate of (i) Closing Cash (such estimate, “Estimated Closing Cash”), (ii) Closing Working Capital (such estimate, “Estimated Closing Working Capital”), (iii) Closing Debt (such estimate, “Estimated Closing Debt”), (iv) Transaction Expenses (such estimate, “Estimated Transaction Expenses”), (v) Closing Taxes (such estimate, “Estimated Closing Taxes”), (vi) Closing Transaction Tax Deductions (such estimate, “Estimated Closing Transaction Tax Deductions”), (vii) the Closing Non-Cash Debt (such estimate, “Estimated Closing Non-Cash Debt”) and (viii) the Estimated Closing Adjustment Amount, in each case, together with reasonably detailed schedules with respect to the determination thereof to support the estimates set forth in the Estimated Closing Statement. The Estimated Closing Statement shall be prepared in accordance with the terms of this Agreement, including the Accounting Principles. The Parties hereby agree that the purpose of preparing the Estimated Closing Statement is to estimate the amounts of Closing Cashfollowing items shall be paid, Closing Working Capitalprorated, Closing Debt, Transaction Expenses, Closing Taxes, Closing Transaction Tax Deductions and the Closing Adjustment Amount in accordance with the terms of this Agreement, including the Accounting Principles. Vista Outdoor shall consider in good faith and implement all reasonable comments provided by Parent to the Estimated Closing Statement (including the components thereof) at least one Business Day prior to the Closing Date.
(b) At least five (5) Business Days prior to Vista Outdoor’s delivery of the Estimated Closing Statement, and in any event at least ten (10) Business Days prior to the Closing Date, Vista Outdoor shall prepare and deliver to Parent a good faith non-binding, advisory draft of the Estimated Closing Statement (the “Draft Estimated Closing Statement”), including reasonably detailed schedules with respect to the determination thereof to support the estimates set forth therein. In furtherance of Vista Outdoor’s preparation of the Estimated Closing Statement, Vista Outdoor shall consider in good faith all reasonable comments provided to the Draft Estimated Closing Statement by Parent at least one Business Day prior to delivery of the Estimated Closing Statement.
(c) Within ten (10) Business Days of the date of this Agreement, Vista Outdoor shall prepare and deliver to Parent a good faith non-binding, advisory draft of the Estimated Closing Statement, including reasonably detailed schedules with respect to the determination thereof to support the estimates set forth therein (an “Advisory Estimated Closing Statement”), assuming, for purposes of creating such Advisory Estimated Closing Statement, a Reference Time of 11:59 p.m. New York City time on September 30, 2024. Within ten (10) Business Days following October 31, 2024, Vista Outdoor shall prepare and deliver to Parent, an Advisory Estimated Closing Statement assuming, for purposes of creating such Advisory Estimated Closing Statement, a Reference Time of 11:59 p.m. New York City time on October 31, 2024. In furtherance of Vista Outdoor’s preparation of the Draft Estimated Closing Statement and the Estimated Closing Statement, Vista Outdoor shall consider in good faith all reasonable comments provided to the Advisory Estimated Closing Statements by Parent at least one (1) Business Day prior to delivery of the Draft Estimated Closing Statement.
(d) As promptly or adjusted as practicable, and in any event within the later of (x) thirty (30) days following soon as practical after the Closing Date and (y) five (5) Business Days prior to in the consummation of the Revelyst Merger (if such merger is consummated) (the later of (x) and (y), the “Closing Statement Deadline”), Vista Outdoor and Revelyst shall cooperate in good faith and jointly prepare a statement following manner (the “Closing StatementAdjustments”) setting forth their joint good faith calculation of (i) Closing Cash, (ii) Closing Working Capital, (iii) Closing Debt, (iv) Transaction Expenses, (v) Closing Taxes, (vi) Closing Transaction Tax Deductions and (vii) the Closing Adjustment Amount, in each case, together with reasonably detailed schedules with respect to the determination thereof to support the calculations set forth in the Closing Statement. The Closing Statement shall be prepared in accordance with the terms of this Agreement, including the Accounting Principles. The Parties agree that the purpose of preparing the Closing Statement is to measure and determine the amount of Closing Cash, Closing Working Capital, Closing Debt, Transaction Expenses, Closing Taxes, Closing Transaction Tax Deductions and the Closing Adjustment Amount in accordance with the terms of this Agreement, including the Accounting Principles. Each of Vista Outdoor and Revelyst shall execute the Closing Statement to certify the calculations set forth therein and upon such certification the Closing Statement shall become final and binding upon the Parties; provided, that, notwithstanding anything to the contrary in this Agreement, in the event that Vista Outdoor and Revelyst do not agree upon and execute the Closing Statement by the Closing Statement Deadline, then the Estimated Closing Statement shall be deemed to be the Closing Statement for all purposes under this Agreement and neither Party nor their respective Affiliates shall have any further obligation pursuant to this Section 2.06.):
(ea) In connection with the preparation assumption of certain of the Assumed Obligations hereunder, the Purchase Price shall be reduced by an amount equal to the amount reflected on Seller’s financial statements as of the Effective Date for the following accounts: customer deposits, warranty reserves and accrued vacation;
(b) Excluded Obligations or Liabilities of Seller received or discovered after the Closing StatementDate for periods prior to the Effective Date shall be paid by Seller,
(c) Assumed Obligations or Liabilities of Buyer shall be paid by Buyer;
(d) Seller and Buyer shall each pay their respective legal fees and expenses and the cost of performance of each of its respective obligations under this Agreement, Vista Outdoor shalland
(e) Seller shall provide to Buyer a listing of the Inventory as of September 1, subject 2006. Seller shall conduct a physical inventory on September 5, 2006 (the “Test Inventory”). The Seller shall review the Inventory as of September 1, 2006 and the results of the Test Inventory to reasonable advance written request determine if any adjustments need to be made to the Target Inventory (email being sufficientthe “Estimated Final Inventory”), . Buyer may be present and observe the Test Inventory. Seller shall provide Revelyst the Estimated Final Inventory to Buyer as soon as practicable after the Closing Date. Buyer shall review the Estimated Final Inventory and its Representatives with reasonable access during normal business hours, and notify Seller in such a manner as to not interfere writing within five (5) days of receipt of the Estimated Final Inventory of any disagreement with the normal operations of Vista Outdoor Estimated Final Inventory. In the event no such written notice is provided by Buyer to Seller within such period, the Estimated Final Inventory shall be deemed final (the “Final Inventory”) and each other member of the Vista Outdoor Group, appropriate adjustments will be made to the Records and relevant advisors (subject to the execution of any required customary access letters), personnel and properties of Vista Outdoor and each other member of the Vista Outdoor Group Purchase Price. The Purchase Price shall be adjusted upward or downward to the extent reasonably relevant the Final Inventory as of the Effective Date is higher than or lower than the Target Inventory as of March 31, 2006, and the Parties shall mutually prepare and execute a settlement statement setting forth the foregoing adjustments, if any. To the extent there is an adjustment made to the preparation of the Closing Statement; provided that Revelyst shall, and shall cause its Representatives to, keep any nonpublic information shared with it confidential.
(f) Within three (3) Business Days after the Closing Statement becomes final and binding upon the Parties in accordance with this Section 2.06, if the Closing Adjustment Amount is:
(i) greater than the Estimated Closing Adjustment Amount, then Vista Outdoor shall pay Revelyst an amount of cash equal to such difference;
(ii) less than the Estimated Closing Adjustment Amount, then Revelyst shall pay Vista Outdoor an amount of cash equal to such difference; or
(iii) equal to the Estimated Closing Adjustment Amount, then neither Party shall have any obligation to make a payment to the other Party in respect thereof.
(g) Each Party acknowledges that the agreements contained in this Section 2.06 are an integral part of the Transactions, and that, without these agreements, the other Party would not have entered into this Agreement and each other Transaction Document to which it is a party. Accordingly, if a Party fails to promptly pay any amount due Purchase Price pursuant to this Section 2.06 (such Party, the “Defaulting Party”3.3(e), and, in order to obtain payment of such amount, the other Party commences a legal action which results in an order against the Defaulting Party for such amount, or any portion thereof, the Defaulting Party adjustment shall pay be made to the other Party such other Party’s out-of-pocket, reasonable and documented costs and expenses (including attorneys’ fees) incurred in connection with such legal action, together with interest on such due and unpaid amounts pursuant to this Section 2.06 at a rate equal to (i) cash portion of the prime rate as published in The Wall Street Journal in effect on the date such amount was required Purchase Price to be paid plus (ii) 2% through at the date Closing. In the event Buyer disputes the Estimated Final Inventory, the parties will meet to attempt to resolve the disagreement. If the parties are unable in good faith to resolve such payment was actually received.
(h) Vista Outdoor agrees thatdisagreement, from the Closing Date through parties shall refer the date that the Closing Adjustment Amount is finally determined matter to arbitration in accordance with this the provisions of Section 2.06, it shall not, and shall cause each other member of the Vista Outdoor Group not to, take any action with respect to any accounting books, records, policies or procedures on which the Closing Statement is based that would impede or delay the final determination of the Closing Adjustment Amount12.4 hereof.
(i) Notwithstanding anything to the contrary in this Agreement or any investigation or examination conducted, or any knowledge possessed or acquired, by or on behalf of Vista Outdoor or Revelyst, the process set forth in this Section 2.06 shall be the sole and exclusive remedy between the Parties for any disputes related to the items required to be included or reflected in the calculation of Closing Cash, Closing Working Capital, Closing Debt, Transaction Expenses, Closing Taxes, Closing Transaction Tax Deductions and the Closing Adjustment Amount.
(j) Without the prior written consent of ▇▇▇▇▇▇ ▇▇▇▇▇▇, none of the time periods set forth in this Section 2.06 shall be extended or waived by any Party. For the avoidance of doubt, from and after the closing of the Revelyst Merger, neither Olibre Parent, Revelyst nor any of their respective Subsidiaries shall have any obligation with respect to this Section 2.06. Each Party agrees that Olibre Parent is a third party beneficiary of this Section 2.06(j).
(k) For the purposes of this Agreement:
Appears in 1 contract
Closing Adjustments. (a) At least five (5) As soon as practicable prior to the Closing Date, but in no event later than two Business Days prior to the Closing Date, Vista Outdoor the Company shall prepare and deliver to provide Parent with a statement (the “Estimated Closing Statement”) setting forth Vista Outdoor’s its good faith estimate of (i) Closing Cash (such estimate, “Estimated Closing Cash”), (ii) Closing closing Working Capital (such estimate, “the "Estimated Closing Working Capital”"), which statement shall contain an estimated balance sheet of the Company as of the Closing Date (iii) Closing Debt (such estimate, “Estimated Closing Debt”without giving effect to the transaction contemplated herein), (iv) Transaction Expenses (such estimateand a full accounting of all Paid Costs, “Estimated Transaction Expenses”), (v) Closing Taxes (such estimate, “Estimated Closing Taxes”), (vi) Closing Transaction Tax Deductions (such estimate, “Estimated Closing Transaction Tax Deductions”), (vii) the Closing Non-Cash Debt (such estimate, “Estimated Closing Non-Cash Debt”) and (viii) the Estimated Closing Adjustment Amount, in each case, together with reasonably detailed schedules with respect to the determination thereof to support the estimates set forth in the Estimated Closing Statement. The Estimated Closing Statement shall be prepared in accordance with the terms of this Agreement, including the Accounting Principles. The Parties agree that the purpose of preparing the Exhibit A ("Estimated Closing Statement is to estimate the amounts of Closing Cash, Closing Working Capital, Closing Debt, Transaction Expenses, Closing Taxes, Closing Transaction Tax Deductions and the Closing Adjustment Amount in accordance with the terms of this Agreement, including the Accounting Principles. Vista Outdoor shall consider in good faith and implement all reasonable comments provided by Parent to the Estimated Closing Statement (including the components thereof) at least one Business Day prior to the Closing DateCapital Statement").
(b) At least five The "Estimated Merger Consideration" means the Consideration Shares, adjusted as follows:
(5A) Business Days prior to Vista Outdoor’s delivery of If the Estimated Closing StatementWorking Capital is less than [Redacted – Dollar Figure – Commercially Sensitive Information] (the "Low Target"), and in any event at least ten (10) Business Days prior the Estimated Merger Consideration shall be decreased by shares of Parent stock having a value equal to the Closing Date, Vista Outdoor shall prepare and deliver to Parent a good faith non-binding, advisory draft of difference between the Estimated Closing Statement Working Capital and the Low Target (the “Draft "Closing Reduction");
(B) If the Estimated Closing Statement”), including reasonably detailed schedules with respect Working Capital is greater than the Low Target but less than [Redacted – Dollar Figure – Commercially Sensitive Information] (the "High Target") there shall be no adjustment to the determination thereof to support the estimates set forth therein. In furtherance of Vista Outdoor’s preparation of Estimated Merger Consideration; and
(C) If the Estimated Closing StatementWorking Capital is greater than the High Target, Vista Outdoor the Estimated Merger Consideration shall consider in good faith all reasonable comments provided be increased by shares of Parent stock having a value equal to the Draft Estimated Closing Statement by Parent at least one Business Day prior to delivery of difference between the Estimated Closing Statement.
(c) Within ten (10) Business Days of the date of this Agreement, Vista Outdoor shall prepare and deliver to Parent a good faith non-binding, advisory draft of the Estimated Closing Statement, including reasonably detailed schedules with respect to the determination thereof to support the estimates set forth therein (an “Advisory Estimated Closing Statement”), assuming, for purposes of creating such Advisory Estimated Closing Statement, a Reference Time of 11:59 p.m. New York City time on September 30, 2024. Within ten (10) Business Days following October 31, 2024, Vista Outdoor shall prepare and deliver to Parent, an Advisory Estimated Closing Statement assuming, for purposes of creating such Advisory Estimated Closing Statement, a Reference Time of 11:59 p.m. New York City time on October 31, 2024. In furtherance of Vista Outdoor’s preparation of the Draft Estimated Closing Statement High Target and the Estimated Closing Statement, Vista Outdoor shall consider in good faith all reasonable comments provided to the Advisory Estimated Closing Statements by Parent at least one (1) Business Day prior to delivery of the Draft Estimated Closing Statement.
(d) As promptly as practicable, and in any event within the later of (x) thirty (30) days following the Closing Date and (y) five (5) Business Days prior to the consummation of the Revelyst Merger (if such merger is consummated) Working Capital (the later of (x) and (y"Closing Increase"). For the Paid Costs, the “Closing Statement Deadline”), Vista Outdoor and Revelyst shall cooperate in good faith and jointly prepare a statement (the “Closing Statement”) setting forth their joint good faith calculation of (i) Closing Cash, (ii) Closing Working Capital, (iii) Closing Debt, (iv) Transaction Expenses, (v) Closing Taxes, (vi) Closing Transaction Tax Deductions and (vii) the Closing Adjustment Amount, in each case, together with reasonably detailed schedules with respect to the determination thereof to support the calculations set forth in the Closing Statement. The Closing Statement Estimated Merger Consideration shall be prepared in accordance with the terms increased by shares of this Agreement, including the Accounting Principles. The Parties agree that the purpose of preparing the Closing Statement is Parent stock having a value equal to measure and determine the amount of Closing Cash, Closing Working Capital, Closing Debt, Transaction Expenses, the Paid Costs. The Estimated Merger Consideration shall be decreased by shares of Parent stock (valued at 75% of the Issue Price) having a value equal to 50% of the Loan for Pre-Closing Taxes, Closing Transaction Tax Deductions and the Closing Adjustment Amount in accordance with the terms of this Agreement, including the Accounting Principles. Each of Vista Outdoor and Revelyst shall execute the Closing Statement to certify the calculations set forth therein and upon such certification the Closing Statement shall become final and binding upon the Parties; provided, that, notwithstanding anything to the contrary in this Agreement, in the event that Vista Outdoor and Revelyst do not agree upon and execute the Closing Statement by the Closing Statement Deadline, then the Estimated Closing Statement shall be deemed to be the Closing Statement for all purposes under this Agreement and neither Party nor their respective Affiliates shall have any further obligation pursuant to this Section 2.06.
(e) In connection with the preparation of the Closing Statement, Vista Outdoor shall, subject to reasonable advance written request (email being sufficient), provide Revelyst and its Representatives with reasonable access during normal business hours, and in such a manner as to not interfere with the normal operations of Vista Outdoor and each other member of the Vista Outdoor Group, to the Records and relevant advisors (subject to the execution of any required customary access letters), personnel and properties of Vista Outdoor and each other member of the Vista Outdoor Group to the extent reasonably relevant to the preparation of the Closing Statement; provided that Revelyst shall, and shall cause its Representatives to, keep any nonpublic information shared with it confidential.
(f) Within three (3) Business Days after the Closing Statement becomes final and binding upon the Parties in accordance with this Section 2.06, if the Closing Adjustment Amount is:
(i) greater than the Estimated Closing Adjustment Amount, then Vista Outdoor shall pay Revelyst an amount of cash equal to such difference;
(ii) less than the Estimated Closing Adjustment Amount, then Revelyst shall pay Vista Outdoor an amount of cash equal to such difference; or
(iii) equal to the Estimated Closing Adjustment Amount, then neither Party shall have any obligation to make a payment to the other Party in respect thereof.
(g) Each Party acknowledges that the agreements contained in this Section 2.06 are an integral part of the Transactions, and that, without these agreements, the other Party would not have entered into this Agreement and each other Transaction Document to which it is a party. Accordingly, if a Party fails to promptly pay any amount due pursuant to this Section 2.06 (such Party, the “Defaulting Party”), and, in order to obtain payment of such amount, the other Party commences a legal action which results in an order against the Defaulting Party for such amount, or any portion thereof, the Defaulting Party shall pay to the other Party such other Party’s out-of-pocket, reasonable and documented costs and expenses (including attorneys’ fees) incurred in connection with such legal action, together with interest on such due and unpaid amounts pursuant to this Section 2.06 at a rate equal to (i) the prime rate as published in The Wall Street Journal in effect on the date such amount was required to be paid plus (ii) 2% through the date such payment was actually received.
(h) Vista Outdoor agrees that, from the Closing Date through the date that the Closing Adjustment Amount is finally determined in accordance with this Section 2.06, it shall not, and shall cause each other member of the Vista Outdoor Group not to, take any action with respect to any accounting books, records, policies or procedures on which the Closing Statement is based that would impede or delay the final determination of the Closing Adjustment Amount.
(i) Notwithstanding anything to the contrary in this Agreement or any investigation or examination conducted, or any knowledge possessed or acquired, by or on behalf of Vista Outdoor or Revelyst, the process set forth in this Section 2.06 shall be the sole and exclusive remedy between the Parties for any disputes related to the items required to be included or reflected in the calculation of Closing Cash, Closing Working Capital, Closing Debt, Transaction Expenses, Closing Taxes, Closing Transaction Tax Deductions and the Closing Adjustment Amount.
(j) Without the prior written consent of ▇▇▇▇▇▇ ▇▇▇▇▇▇, none of the time periods set forth in this Section 2.06 shall be extended or waived by any Party. For the avoidance of doubt, from and after the closing of the Revelyst Merger, neither Olibre Parent, Revelyst nor any of their respective Subsidiaries shall have any obligation with respect to this Section 2.06. Each Party agrees that Olibre Parent is a third party beneficiary of this Section 2.06(j).
(k) For the purposes of this Agreement:
Appears in 1 contract
Sources: Merger Agreement
Closing Adjustments. (a) At least five (5) Business Days prior 9.1 Subject to Paragraph 16 hereof, the following adjustments shall be made as of midnight of the day preceding the Closing Date, Vista Outdoor shall prepare and deliver to Parent a statement (the “Estimated Closing Statement”) setting forth Vista Outdoor’s good faith estimate of (i) Closing Cash (such estimate, “Estimated Closing Cash”), (ii) Closing Working Capital (such estimate, “Estimated Closing Working Capital”), (iii) Closing Debt (such estimate, “Estimated Closing Debt”), (iv) Transaction Expenses (such estimate, “Estimated Transaction Expenses”), (v) Closing Taxes (such estimate, “Estimated Closing Taxes”), (vi) Closing Transaction Tax Deductions (such estimate, “Estimated Closing Transaction Tax Deductions”), (vii) the Closing Non-Cash Debt (such estimate, “Estimated Closing Non-Cash Debt”) and (viii) the Estimated Closing Adjustment Amount, in each case, together with reasonably detailed schedules Date with respect to the determination thereof to support the estimates set forth in the Estimated Closing Statement. The Estimated Closing Statement shall be prepared in accordance with the terms of this AgreementUnit:
(a) real estate taxes and assessments, including the Accounting Principles. The Parties agree that the purpose of preparing the Estimated Closing Statement is to estimate the amounts of Closing Cash, Closing Working Capital, Closing Debt, Transaction Expenses, Closing Taxes, Closing Transaction Tax Deductions and the Closing Adjustment Amount in accordance with the terms of this Agreement, including the Accounting Principles. Vista Outdoor shall consider in good faith and implement all reasonable comments provided by Parent to the Estimated Closing Statement if any (including water charges and sewer rents, if separately assessed), on the components thereof) at least one Business Day prior to basis of the Closing Date.period for which assessed;
(b) At least five (5) Business Days prior to Vista Outdoor’s delivery of Common Charges for the Estimated Closing Statement, and month in any event at least ten (10) Business Days prior to the Closing Date, Vista Outdoor shall prepare and deliver to Parent a good faith non-binding, advisory draft of the Estimated Closing Statement (the “Draft Estimated Closing Statement”), including reasonably detailed schedules with respect to the determination thereof to support the estimates set forth therein. In furtherance of Vista Outdoor’s preparation of the Estimated Closing Statement, Vista Outdoor shall consider in good faith all reasonable comments provided to the Draft Estimated Closing Statement by Parent at least one Business Day prior to delivery of the Estimated Closing Statement.which title closes; and
(c) Within ten (10) Business Days accrued rent and any other charges pursuant to an interim lease or use and occupancy agreement, if any, covering the Unit.
9.2 If a Unit has been separately assessed but the closing of title occurs before the date tax rate is fixed, adjustment of this Agreement, Vista Outdoor taxes shall prepare and deliver to Parent a good faith non-binding, advisory draft of be based upon the Estimated Closing Statement, including reasonably detailed schedules with respect latest tax rate applied to the determination thereof to support most recent applicable assessed valuation. Installments for tax assessments due after the estimates set forth therein (an “Advisory Estimated Closing Statement”), assuming, for purposes of creating such Advisory Estimated Closing Statement, a Reference Time of 11:59 p.m. New York City time on September 30, 2024. Within ten (10) Business Days following October 31, 2024, Vista Outdoor shall prepare and deliver to Parent, an Advisory Estimated Closing Statement assuming, for purposes of creating such Advisory Estimated Closing Statement, a Reference Time of 11:59 p.m. New York City time on October 31, 2024. In furtherance of Vista Outdoor’s preparation of the Draft Estimated Closing Statement and the Estimated Closing Statement, Vista Outdoor shall consider in good faith all reasonable comments provided to the Advisory Estimated Closing Statements by Parent at least one (1) Business Day prior to delivery of the Draft Estimated Closing Statement.
(d) As promptly deed, if any, shall be paid by Purchaser and shall not be considered a defect in title. If a Unit has not been separately assessed as practicable, and in any event within the later of (x) thirty (30) days following the Closing Date for the then current tax period, the adjustment under subsection 9.1(a) hereof shall be based upon the assessment for the Property and (y) five (5) Business Days prior the percentage interest in the General Common Elements appurtenant to the consummation Unit.
9.3 Purchaser hereby agrees that, if either Purchaser or Sponsor obtains a refund for real estate taxes paid (or a credit for such taxes to be paid) on Purchaser’s Unit, Purchaser and Sponsor will apportion the refund (as well as the costs and/or fees for obtaining the refund or credit) based on the percentage of time for which the Revelyst Merger (if such merger refund or credit is consummated) (obtained during which each party hereto owned the later Unit in question. The provisions of (x) and (y)this subsection shall survive the closing of title.
9.4 The “Customs in Respect of Title Closings” recommended by The Real Estate Board of New York, the “Closing Statement Deadline”)Inc., Vista Outdoor and Revelyst as amended to date, shall cooperate in good faith and jointly prepare a statement (the “Closing Statement”) setting forth their joint good faith calculation of (i) Closing Cash, (ii) Closing Working Capital, (iii) Closing Debt, (iv) Transaction Expenses, (v) Closing Taxes, (vi) Closing Transaction Tax Deductions and (vii) the Closing Adjustment Amount, in each case, together with reasonably detailed schedules with respect apply to the determination thereof adjustments and other matters therein mentioned except as otherwise provided herein.
9.5 Any errors or omissions in computing apportionments shall be corrected and payment made to support the calculations set forth in the Closing Statementproper party after discovery. The Closing Statement shall be prepared in accordance with the terms provisions of this Agreement, including subsection shall survive the Accounting Principles. The Parties agree that the purpose of preparing the Closing Statement is to measure and determine the amount of Closing Cash, Closing Working Capital, Closing Debt, Transaction Expenses, Closing Taxes, Closing Transaction Tax Deductions and the Closing Adjustment Amount in accordance with the terms of this Agreement, including the Accounting Principles. Each of Vista Outdoor and Revelyst shall execute the Closing Statement to certify the calculations set forth therein and upon such certification the Closing Statement shall become final and binding upon the Parties; provided, that, notwithstanding anything to the contrary in this Agreement, in Closing.
9.6 In the event that Vista Outdoor and Revelyst do Purchaser fails to close title to the Unit on the date originally scheduled for the closing of title, postpones the closing for any reason, or is deemed at fault for not agree upon and execute the Closing Statement by the Closing Statement Deadline, then the Estimated Closing Statement shall be deemed to be the Closing Statement for all purposes under this Agreement and neither Party nor their respective Affiliates shall have any further obligation pursuant to this Section 2.06.
(e) In connection with the preparation timely sending notice of the Closing Statement, Vista Outdoor shall, subject to reasonable advance written request (email being sufficient), provide Revelyst and its Representatives with reasonable access during normal business hoursa title defect as provided in Article 8 above, and in such a manner as to not interfere with the normal operations of Vista Outdoor and each other member of the Vista Outdoor Grouptitle thereafter closes, to the Records and relevant advisors (subject to the execution of any required customary access letters), personnel and properties of Vista Outdoor and each other member of the Vista Outdoor Group to the extent reasonably relevant to the preparation of the Closing Statement; provided that Revelyst shall, and shall cause its Representatives to, keep any nonpublic information shared with it confidential.
(f) Within three (3) Business Days after the Closing Statement becomes final and binding upon the Parties in accordance with this Section 2.06, if the Closing Adjustment Amount isthen:
(ia) greater than the Estimated Closing Adjustment Amount, then Vista Outdoor closing apportionments shall be made as of the originally scheduled closing date regardless of when the actual closing of title occurs; and
(b) Purchaser shall pay Revelyst an amount Sponsor interest at the rate of cash equal to 0.04% per day (or such difference;
(iilower rate per day which is the legal limit, if 0.04% per day exceeds the legal limit) less than on the Estimated total purchase price, computed from the original Closing Adjustment AmountDate until this transaction is actually closed. If, then Revelyst through no fault of Purchaser, Sponsor postpones the originally scheduled Closing Date, the foregoing provisions shall pay Vista Outdoor an amount of cash equal to such difference; or
(iii) equal apply to the Estimated rescheduled Closing Adjustment Amount, then neither Party shall have Date if Purchaser fails for any obligation reason to make a payment to the other Party in respect thereof.
(g) Each Party acknowledges that the agreements contained in this Section 2.06 are an integral part of the Transactions, and that, without these agreements, the other Party would not have entered into this Agreement and each other Transaction Document to which it is a party. Accordingly, if a Party fails to promptly pay any amount due pursuant to this Section 2.06 (such Party, the “Defaulting Party”), and, in order to obtain payment of such amount, the other Party commences a legal action which results in an order against the Defaulting Party for such amount, or any portion thereof, the Defaulting Party shall pay to the other Party such other Party’s out-of-pocket, reasonable and documented costs and expenses (including attorneys’ fees) incurred in connection with such legal action, together with interest on such due and unpaid amounts pursuant to this Section 2.06 at a rate equal to (i) the prime rate as published in The Wall Street Journal in effect close title on the date such amount was required to be paid plus (ii) 2% through the date such payment was actually receivedrescheduled Closing Date.
(h) Vista Outdoor agrees that, from the Closing Date through the date that the Closing Adjustment Amount is finally determined in accordance with this Section 2.06, it shall not, and shall cause each other member of the Vista Outdoor Group not to, take any action with respect to any accounting books, records, policies or procedures on which the Closing Statement is based that would impede or delay the final determination of the Closing Adjustment Amount.
(i) Notwithstanding anything to the contrary in this Agreement or any investigation or examination conducted, or any knowledge possessed or acquired, by or on behalf of Vista Outdoor or Revelyst, the process set forth in this Section 2.06 shall be the sole and exclusive remedy between the Parties for any disputes related to the items required to be included or reflected in the calculation of Closing Cash, Closing Working Capital, Closing Debt, Transaction Expenses, Closing Taxes, Closing Transaction Tax Deductions and the Closing Adjustment Amount.
(j) Without the prior written consent of ▇▇▇▇▇▇ ▇▇▇▇▇▇, none of the time periods set forth in this Section 2.06 shall be extended or waived by any Party. For the avoidance of doubt, from and after the closing of the Revelyst Merger, neither Olibre Parent, Revelyst nor any of their respective Subsidiaries shall have any obligation with respect to this Section 2.06. Each Party agrees that Olibre Parent is a third party beneficiary of this Section 2.06(j).
(k) For the purposes of this Agreement:
Appears in 1 contract
Sources: Condominium Offering Plan
Closing Adjustments. (a) At least five Not less than two (52) Business Days prior to the anticipated Closing Date, Vista Outdoor Parent shall prepare provide Purchaser with (i) a good faith estimate of First Share Sale Entities Cash and deliver to Parent a statement First Share Sale Entities Indebtedness, in each case as of the Share Sale Effective Time (the “Estimated First Share Sale Closing Statement”) setting forth Vista Outdoor’s good faith estimate of (i) Closing Cash (such estimate, “Estimated Closing Cash”), (ii) Closing Working Capital a good faith estimate of Second Share Sale Entities Cash and Second Share Sale Entities Indebtedness, in each case as of the Share Sale Effective Time (such estimate, the “Estimated Second Share Sale Closing Working Capital”), (iii) Closing Debt (such estimate, “Estimated Closing Debt”), (iv) Transaction Expenses (such estimate, “Estimated Transaction Expenses”), (v) Closing Taxes (such estimate, “Estimated Closing Taxes”), (vi) Closing Transaction Tax Deductions (such estimate, “Estimated Closing Transaction Tax Deductions”), (vii) the Closing Non-Cash Debt (such estimate, “Estimated Closing Non-Cash DebtStatement”) and (viiiiii) a good faith estimate of Contribution Entities Cash and Contribution Entities Indebtedness, in each case as of the Estimated Closing Adjustment Amount, Contribution Effective Time (in each case, together with reasonably detailed schedules with respect to setting out separately such amounts for the determination thereof to support the estimates set forth in the Estimated Closing Statement. The Estimated Closing Statement shall be prepared in accordance with the terms of this Agreement, including the Accounting Principles. The Parties agree that the purpose of preparing the Estimated Closing Statement is to estimate the amounts of Closing Cash, Closing Working Capital, Closing Debt, Transaction Expenses, Closing Taxes, Closing Transaction Tax Deductions and the Closing Adjustment Amount in accordance with the terms of this Agreement, including the Accounting Principles. Vista Outdoor shall consider in good faith and implement all reasonable comments provided by Parent to the Estimated Closing Statement (including the components thereofDanish Entity) at least one Business Day prior to the Closing Date.
(b) At least five (5) Business Days prior to Vista Outdoor’s delivery of the Estimated Closing Statement, and in any event at least ten (10) Business Days prior to the Closing Date, Vista Outdoor shall prepare and deliver to Parent a good faith non-binding, advisory draft of the Estimated Closing Statement (the “Draft Estimated Contribution Closing Statement”), including reasonably detailed schedules ,” and together with respect to the determination thereof to support the estimates set forth therein. In furtherance of Vista Outdoor’s preparation of the Estimated Closing Statement, Vista Outdoor shall consider in good faith all reasonable comments provided to the Draft Estimated Closing Statement by Parent at least one Business Day prior to delivery of the Estimated Closing Statement.
(c) Within ten (10) Business Days of the date of this Agreement, Vista Outdoor shall prepare and deliver to Parent a good faith non-binding, advisory draft of the Estimated Closing Statement, including reasonably detailed schedules with respect to the determination thereof to support the estimates set forth therein (an “Advisory Estimated Closing Statement”), assuming, for purposes of creating such Advisory Estimated Closing Statement, a Reference Time of 11:59 p.m. New York City time on September 30, 2024. Within ten (10) Business Days following October 31, 2024, Vista Outdoor shall prepare and deliver to Parent, an Advisory Estimated Closing Statement assuming, for purposes of creating such Advisory Estimated Closing Statement, a Reference Time of 11:59 p.m. New York City time on October 31, 2024. In furtherance of Vista Outdoor’s preparation of the Draft Estimated First Share Sale Closing Statement and the Estimated Second Share Sale Closing Statement, Vista Outdoor the “Estimated Closing Statements”), which shall consider in good faith all reasonable comments provided be accompanied by a notice that sets forth (A)(x) Parent’s determination of the Closing First Share Sale Adjustment and the Closing First Share Sale Consideration after giving effect to the Advisory Estimated Closing Statements by Parent First Share Sale Adjustment and (y) the account or accounts to which the First Share Sale Purchasers shall transfer the Closing First Share Sale Consideration pursuant to Section 2.2(b)(ii); (B)(x) Parent’s determination of the Closing Second Share Sale Adjustment and the Closing Second Share Sale Cash Consideration after giving effect to the Closing Second Share Sale Adjustment and (y) the account or accounts to which the Second Share Sale Purchasers shall transfer the Closing Second Share Sale Cash Consideration pursuant to Section 2.2(b)(ii); and (C) Parent’s determination of the Closing Contribution Adjustment and, if the Closing Contribution Adjustment is a negative amount, the account or accounts to which Purchaser shall pay the Closing Contribution Adjustment pursuant to Section 2.2(b)(ii). If the Closing Contribution Adjustment is a positive amount, at least one (1) Business Day prior to delivery of the Draft Estimated anticipated Closing StatementDate, Purchaser shall provide Parent with the account or accounts to which SwissCo shall pay the Closing Contribution Adjustment at the Closing pursuant to Section 2.2(b)(i).
(db) As promptly as practicable, and in any event within the later of (x) thirty (30) days following the The Estimated Closing Date and (y) five (5) Business Days prior to the consummation of the Revelyst Merger (if such merger is consummated) (the later of (x) and (y), the “Closing Statement Deadline”), Vista Outdoor and Revelyst shall cooperate in good faith and jointly prepare a statement (the “Closing Statement”) setting forth their joint good faith calculation of (i) Closing Cash, (ii) Closing Working Capital, (iii) Closing Debt, (iv) Transaction Expenses, (v) Closing Taxes, (vi) Closing Transaction Tax Deductions and (vii) the Closing Adjustment Amount, in each case, together with reasonably detailed schedules with respect to the determination thereof to support the calculations set forth in the Closing Statement. The Closing Statement Statements shall be prepared in accordance with the terms of this Agreement, including the Accounting Principles. The Parties agree that the purpose of preparing the Closing Statement is to measure and determine the amount of Closing Cash, Closing Working Capital, Closing Debt, Transaction Expenses, Closing Taxes, Closing Transaction Tax Deductions and the Closing Adjustment Amount good faith in accordance with the terms of this Agreement, including Accounting Principles attached as Schedule II hereto (the “Accounting Principles. Each of Vista Outdoor and Revelyst shall execute the Closing Statement to certify the calculations set forth therein and upon such certification the Closing Statement shall become final and binding upon the Parties; provided, that, notwithstanding anything to the contrary in this Agreement, in the event that Vista Outdoor and Revelyst do not agree upon and execute the Closing Statement by the Closing Statement Deadline, then the Estimated Closing Statement shall be deemed to be the Closing Statement for all purposes under this Agreement and neither Party nor their respective Affiliates shall have any further obligation pursuant to this Section 2.06.
(e) In connection with the preparation of the Closing Statement, Vista Outdoor shall, subject to reasonable advance written request (email being sufficient), provide Revelyst and its Representatives with reasonable access during normal business hours, and in such a manner as to not interfere with the normal operations of Vista Outdoor and each other member of the Vista Outdoor Group, to the Records and relevant advisors (subject to the execution of any required customary access letters), personnel and properties of Vista Outdoor and each other member of the Vista Outdoor Group to the extent reasonably relevant to the preparation of the Closing Statement; provided that Revelyst shall, and shall cause its Representatives to, keep any nonpublic information shared with it confidential.
(f) Within three (3) Business Days after the Closing Statement becomes final and binding upon the Parties in accordance with this Section 2.06, if the Closing Adjustment Amount is:
(i) greater than the Estimated Closing Adjustment Amount, then Vista Outdoor shall pay Revelyst an amount of cash equal to such difference;
(ii) less than the Estimated Closing Adjustment Amount, then Revelyst shall pay Vista Outdoor an amount of cash equal to such difference; or
(iii) equal to the Estimated Closing Adjustment Amount, then neither Party shall have any obligation to make a payment to the other Party in respect thereof.
(g) Each Party acknowledges that the agreements contained in this Section 2.06 are an integral part of the Transactions, and that, without these agreements, the other Party would not have entered into this Agreement and each other Transaction Document to which it is a party. Accordingly, if a Party fails to promptly pay any amount due pursuant to this Section 2.06 (such Party, the “Defaulting Party”), and, in order to obtain payment of such amount, the other Party commences a legal action which results in an order against the Defaulting Party for such amount, or any portion thereof, the Defaulting Party shall pay to the other Party such other Party’s out-of-pocket, reasonable and documented costs and expenses (including attorneys’ fees) incurred in connection with such legal action, together with interest on such due and unpaid amounts pursuant to this Section 2.06 at a rate equal to (i) the prime rate as published in The Wall Street Journal in effect on the date such amount was required to be paid plus (ii) 2% through the date such payment was actually received.
(h) Vista Outdoor agrees that, from the Closing Date through the date that the Closing Adjustment Amount is finally determined in accordance with this Section 2.06, it shall not, and shall cause each other member of the Vista Outdoor Group not to, take any action with respect to any accounting books, records, policies or procedures on which the Closing Statement is based that would impede or delay the final determination of the Closing Adjustment Amount.
(i) Notwithstanding anything to the contrary in this Agreement or any investigation or examination conducted, or any knowledge possessed or acquired, by or on behalf of Vista Outdoor or Revelyst, the process set forth in this Section 2.06 shall be the sole and exclusive remedy between the Parties for any disputes related to the items required to be included or reflected in the calculation of Closing Cash, Closing Working Capital, Closing Debt, Transaction Expenses, Closing Taxes, Closing Transaction Tax Deductions and the Closing Adjustment Amount.
(j) Without the prior written consent of ▇▇▇▇▇▇ ▇▇▇▇▇▇, none of the time periods set forth in this Section 2.06 shall be extended or waived by any Party. For the avoidance of doubt, from and after the closing of the Revelyst Merger, neither Olibre Parent, Revelyst nor any of their respective Subsidiaries shall have any obligation with respect to this Section 2.06. Each Party agrees that Olibre Parent is a third party beneficiary of this Section 2.06(j).
(k) For the purposes of this Agreement:
Appears in 1 contract
Sources: Transaction Agreement (Ebay Inc)
Closing Adjustments. No later than three (a) At least five (53) Business Days prior to the Closing Date, Vista Outdoor shall prepare Sellers will cause to be prepared and deliver delivered to Parent Buyer (a) a statement certificate (which will be subject to the “Estimated Closing Statement”review and approval of Buyer prior to the Closing) signed and certified by the Chief Financial Officer of the Company, setting forth Vista Outdoor’s the Sellers’ good faith estimate estimate, in each case prepared in accordance with GAAP, of (i1) Closing Cash (such estimate, “Estimated Closing Cash”), (ii) the Closing Working Capital Adjustment Amount (such estimate, the “Estimated Closing Working Capital”), (iii2) the amount of Closing Debt Indebtedness (such estimate, the “Estimated Closing DebtIndebtedness”), (iv3) the Closing Transaction Expenses (such estimate, the “Estimated Closing Transaction Expenses”), (v4) the amount of Closing Taxes Cash (such estimate, the “Estimated Closing TaxesCash”), and (vi) Closing Transaction Tax Deductions (such estimate, “Estimated Closing Transaction Tax Deductions”), (vii5) the Closing Non-Cash Debt Date Payment based on estimates of items (2)-(4) above (such estimatecertificate, the “Estimated Closing Non-Cash DebtCertificate”) and (viii) the Estimated Closing Adjustment Amount, in each case, together with reasonably detailed schedules with respect to the determination thereof to support the estimates set forth in the Estimated Closing Statement. The Estimated Closing Statement shall be prepared in accordance with the terms of this Agreement, including the Accounting Principles. The Parties agree that the purpose of preparing the Estimated Closing Statement is to estimate the amounts of Closing Cash, Closing Working Capital, Closing Debt, Transaction Expenses, Closing Taxes, Closing Transaction Tax Deductions and the Closing Adjustment Amount in accordance with the terms of this Agreement, including the Accounting Principles. Vista Outdoor shall consider in good faith and implement all reasonable comments provided by Parent to the Estimated Closing Statement (including the components thereof) at least one Business Day prior to the Closing Date.
(b) At least five (5) Business Days prior any documents pertaining to Vista Outdoor’s delivery of the Estimated Closing Statement, and or used in any event at least ten (10) Business Days prior to the Closing Date, Vista Outdoor shall prepare and deliver to Parent a good faith non-binding, advisory draft of the Estimated Closing Statement (the “Draft Estimated Closing Statement”), including reasonably detailed schedules with respect to the determination thereof to support the estimates set forth therein. In furtherance of Vista Outdoor’s preparation of the Estimated Closing Statement, Vista Outdoor shall consider in good faith all reasonable comments provided to the Draft Estimated Closing Statement by Parent at least one Business Day prior to delivery of the Estimated Closing Statement.
(c) Within ten (10) Business Days of the date of this Agreement, Vista Outdoor shall prepare and deliver to Parent a good faith non-binding, advisory draft of the Estimated Closing Statement, including reasonably detailed schedules with respect to the determination thereof to support the estimates set forth therein (an “Advisory Estimated Closing Statement”), assuming, for purposes of creating such Advisory Estimated Closing Statement, a Reference Time of 11:59 p.m. New York City time on September 30, 2024. Within ten (10) Business Days following October 31, 2024, Vista Outdoor shall prepare and deliver to Parent, an Advisory Estimated Closing Statement assuming, for purposes of creating such Advisory Estimated Closing Statement, a Reference Time of 11:59 p.m. New York City time on October 31, 2024. In furtherance of Vista Outdoor’s preparation of the Draft Estimated Closing Statement and the Estimated Closing Statement, Vista Outdoor shall consider in good faith all reasonable comments provided to the Advisory Estimated Closing Statements by Parent at least one (1) Business Day prior to delivery of the Draft Estimated Closing Statement.
(d) As promptly as practicable, and in any event within the later of (x) thirty (30) days following the Closing Date and (y) five (5) Business Days prior to the consummation of the Revelyst Merger (if such merger is consummated) (the later of (x) and (y), the “Closing Statement Deadline”), Vista Outdoor and Revelyst shall cooperate in good faith and jointly prepare a statement (the “Closing Statement”) setting forth their joint good faith calculation of (i) Closing Cash, (ii) Closing Working Capital, (iii) Closing Debt, (iv) Transaction Expenses, (v) Closing Taxes, (vi) Closing Transaction Tax Deductions and (vii) the Closing Adjustment Amount, in each case, together with reasonably detailed schedules with respect to the determination thereof to support the calculations set forth in the Closing Statement. The Closing Statement shall be prepared in accordance with the terms of this Agreement, including the Accounting Principles. The Parties agree that the purpose of preparing the Closing Statement is to measure and determine the amount of Closing Cash, Closing Working Capital, Closing Debt, Transaction Expenses, Closing Taxes, Closing Transaction Tax Deductions and the Closing Adjustment Amount in accordance with the terms of this Agreement, including the Accounting Principles. Each of Vista Outdoor and Revelyst shall execute the Closing Statement to certify the calculations set forth therein and upon such certification the Closing Statement shall become final and binding upon the Parties; provided, that, notwithstanding anything to the contrary in this Agreement, in the event that Vista Outdoor and Revelyst do not agree upon and execute the Closing Statement by the Closing Statement Deadline, then the Estimated Closing Statement shall be deemed to be the Closing Statement for all purposes under this Agreement and neither Party nor their respective Affiliates shall have any further obligation pursuant to this Section 2.06.
(e) In connection with the preparation of the Closing StatementCertificate. The Closing Date Payment payable at Closing under Section 2.03 shall be calculated using the Estimated Closing Indebtedness Amount, Vista Outdoor shallEstimated Closing Cash, subject to reasonable advance written request (email being sufficientand Estimated Closing Transaction Expenses set forth in the Closing Certificate; provided, however, that no adjustment shall be made for Estimated Closing Working Capital at Closing. An adjustment and payment for Closing Working Capital, if any, based on the Closing Working Capital Adjustment Amount shall be made only under Section 2.04(b), provide Revelyst . The Sellers will allow Buyer and its Representatives with to have reasonable access during normal business hours, (at reasonable times and upon reasonable notice and in such a manner so as not to not unreasonably interfere with the normal operations of Vista Outdoor and each other member operation of the Vista Outdoor Group, Company) to the Records Company’s books and relevant advisors (subject to the execution of any required customary access letters), personnel and properties of Vista Outdoor and each other member of the Vista Outdoor Group to the extent reasonably relevant records relating to the preparation of the Closing Statement; provided that Revelyst shall, and shall cause its Representatives to, keep any nonpublic information shared with it confidentialCertificate.
(f) Within three (3) Business Days after the Closing Statement becomes final and binding upon the Parties in accordance with this Section 2.06, if the Closing Adjustment Amount is:
(i) greater than the Estimated Closing Adjustment Amount, then Vista Outdoor shall pay Revelyst an amount of cash equal to such difference;
(ii) less than the Estimated Closing Adjustment Amount, then Revelyst shall pay Vista Outdoor an amount of cash equal to such difference; or
(iii) equal to the Estimated Closing Adjustment Amount, then neither Party shall have any obligation to make a payment to the other Party in respect thereof.
(g) Each Party acknowledges that the agreements contained in this Section 2.06 are an integral part of the Transactions, and that, without these agreements, the other Party would not have entered into this Agreement and each other Transaction Document to which it is a party. Accordingly, if a Party fails to promptly pay any amount due pursuant to this Section 2.06 (such Party, the “Defaulting Party”), and, in order to obtain payment of such amount, the other Party commences a legal action which results in an order against the Defaulting Party for such amount, or any portion thereof, the Defaulting Party shall pay to the other Party such other Party’s out-of-pocket, reasonable and documented costs and expenses (including attorneys’ fees) incurred in connection with such legal action, together with interest on such due and unpaid amounts pursuant to this Section 2.06 at a rate equal to (i) the prime rate as published in The Wall Street Journal in effect on the date such amount was required to be paid plus (ii) 2% through the date such payment was actually received.
(h) Vista Outdoor agrees that, from the Closing Date through the date that the Closing Adjustment Amount is finally determined in accordance with this Section 2.06, it shall not, and shall cause each other member of the Vista Outdoor Group not to, take any action with respect to any accounting books, records, policies or procedures on which the Closing Statement is based that would impede or delay the final determination of the Closing Adjustment Amount.
(i) Notwithstanding anything to the contrary in this Agreement or any investigation or examination conducted, or any knowledge possessed or acquired, by or on behalf of Vista Outdoor or Revelyst, the process set forth in this Section 2.06 shall be the sole and exclusive remedy between the Parties for any disputes related to the items required to be included or reflected in the calculation of Closing Cash, Closing Working Capital, Closing Debt, Transaction Expenses, Closing Taxes, Closing Transaction Tax Deductions and the Closing Adjustment Amount.
(j) Without the prior written consent of ▇▇▇▇▇▇ ▇▇▇▇▇▇, none of the time periods set forth in this Section 2.06 shall be extended or waived by any Party. For the avoidance of doubt, from and after the closing of the Revelyst Merger, neither Olibre Parent, Revelyst nor any of their respective Subsidiaries shall have any obligation with respect to this Section 2.06. Each Party agrees that Olibre Parent is a third party beneficiary of this Section 2.06(j).
(k) For the purposes of this Agreement:
Appears in 1 contract
Sources: Stock and Warrant Purchase Agreement (Wavedancer, Inc.)
Closing Adjustments. (a) At least five Not later than 12:00 p.m. in Newport Beach, California on the Business Day falling two (52) Business Days prior to the Closing DateClosing, Vista Outdoor the Company shall prepare and deliver to Parent a statement certificate (the “Estimated Closing StatementEstimates Certificate”) setting forth Vista Outdoor), signed by its Chief Executive Officer and Chief Financial Officer, certifying the Company’s good faith estimate best estimates of (i) Closing Cash (such estimate, “Estimated Closing Cash”), the Management Transaction Bonus Plan Amount; (ii) Closing Working Capital Company Cash (which shall include confirmation of such estimate, “Estimated Closing Working Capital”amounts by each bank or depository institution holding Company Cash), ; (iii) Closing the Debt (such estimate, “Estimated Closing Debt”), Payment Amount; (iv) Transaction Expenses (such estimate, “Estimated Transaction Expenses”), the Employee Accrued Bonus Payments; (v) Closing Taxes (such estimate, “Estimated Closing Taxes”), the Company Transaction Expenses; (vi) Closing Transaction Tax Deductions (such estimate, “Estimated Closing Transaction Tax Deductions”), the D&O Policy Premium; (vii) the Closing Non-Cash Debt (such estimate, “Estimated Closing Non-Cash Debt”) and Transaction Payroll Taxes; (viii) Closing Assets; (ix) Closing Liabilities; and (x) the Estimated Closing Adjustment Amount, in each case, together with reasonably detailed schedules with respect to the determination thereof to support the estimates Net Assets Adjustment. The amounts set forth in the Estimated Closing Statement. The Estimated Closing Statement Estimates Certificate shall be prepared used for calculating the Cash Amount at the Closing. All amounts set forth in the Closing Estimates Certificate shall be determined in accordance with US GAAP. Notwithstanding anything contained herein to the terms of this Agreementcontrary, including the Accounting Principles. The Parties agree that the purpose of preparing the Estimated Closing Statement is to estimate the amounts of Closing Cash, Closing Working Capital, Closing Debt, Transaction Expenses, Closing Taxes, Closing Transaction Tax Deductions and the Closing Net Assets Adjustment Amount in accordance with may solely reduce (and not increase) the terms of this Agreement, including the Accounting Principles. Vista Outdoor shall consider in good faith and implement all reasonable comments provided by Parent to the Estimated Closing Statement (including the components thereof) at least one Business Day prior to the Closing DateCash Amount.
(b) At least Parent, UK Acquiror, the Company, UK Subsidiary, and the Stockholder Representative contemplate that Closing Net Assets and the actual Closing Net Assets calculated by Parent pursuant to the Net Assets Calculation will be equivalent to, and will equal, Target Net Assets. Within forty-five (545) Business Days prior to Vista Outdoor’s delivery of the Estimated Closing Statement, and in any event at least ten (10) Business Days prior to days after the Closing Date, Vista Outdoor Parent shall prepare and deliver submit to Parent the Stockholder Representative a good faith non-binding, advisory draft of the Estimated Closing Statement written calculation (the “Draft Estimated Net Assets Calculation”) of the actual and final Closing StatementNet Assets Adjustment based upon the Company’s books and records, together with such schedules and supporting documentation as may be reasonable and appropriate to support Parent’s calculations of such actual and final amount (the “Actual Closing Net Assets Adjustment”). Subject to resolution of any disagreement with the Stockholder Representative as set forth herein, including reasonably detailed schedules with respect UK Acquiror, Parent shall be entitled to recover, through a claim against the Escrow Fund as set forth in Article VIII and the Escrow Agreement, the amount, if any, by which the Actual Closing Net Assets Adjustment exceeds the Closing Net Assets Adjustment. Notwithstanding anything contained herein to the determination thereof contrary, the Consideration Recipients shall not have the right to support the estimates set forth therein. In furtherance of Vista Outdoor’s preparation receive any additional consideration as a result of the Estimated Actual Closing Statement, Vista Outdoor shall consider in good faith all reasonable comments provided to Net Assets Adjustment (even if the Draft Estimated Closing Statement by Parent at least one Business Day prior to delivery of Net Assets Adjustment exceeds the Estimated Actual Closing StatementNet Assets Adjustment).
(c) Within ten If the Stockholder Representative disagrees in whole or in part with the Net Assets Calculation, then within thirty (1030) Business Days days after his or her receipt of the date Net Assets Calculation, the Stockholder Representative shall notify Parent of this Agreement, Vista Outdoor such disagreement in writing (a “Notice of Disagreement”). Any Notice of Disagreement shall prepare and deliver to Parent a good faith non-binding, advisory draft set forth in reasonable detail the particulars of the Estimated Closing StatementStockholder Representative’s dispute and shall include a marked copy of the Net Assets Calculation accompanied by a statement of the Stockholder Representative identifying each specific line item that is in dispute and the basis therefor. During such thirty (30)-day period, the Stockholder Representative and its representatives and agents shall have access (including reasonably detailed schedules with respect electronic access, to the determination thereof to support the estimates set forth therein (an “Advisory Estimated Closing Statement”extent available), assumingduring normal business hours, for purposes of creating such Advisory Estimated Closing Statementto the Company’s books, a Reference Time of 11:59 p.m. New York City time on September 30records, 2024. Within ten (10) Business Days following October 31working papers, 2024, Vista Outdoor shall prepare and deliver to Parent, an Advisory Estimated Closing Statement assuming, for purposes of creating such Advisory Estimated Closing Statement, a Reference Time of 11:59 p.m. New York City time on October 31, 2024. In furtherance of Vista Outdoor’s other documentation used in the preparation of the Draft Estimated Net Assets Calculation and access to such personnel or representatives of the Surviving Corporation and Parent, including but not limited to the individuals responsible for preparing the Net Assets Calculation, as they may reasonably require for the purposes of investigating or resolving any disputes or responding to any matters or inquiries raised in the Net Assets Calculation. If the Stockholder Representative does not deliver a Notice of Disagreement with the required thirty (30)-day period, the Actual Closing Statement Net Assets Adjustment set forth in the Net Assets Calculation shall be binding and conclusive on the parties and for all purposes under the Agreement and the Estimated Closing Statement, Vista Outdoor shall consider in good faith all reasonable comments provided to the Advisory Estimated Closing Statements by Parent at least one (1) Business Day prior to delivery of the Draft Estimated Closing StatementEscrow Agreement.
(d) As promptly In the event a Notice of Disagreement has been delivered, Parent and the Stockholder Representative shall use commercially reasonable efforts for a period of fifteen (15) days (or such longer period as practicablethey may mutually agree) to resolve any disputed line items set forth in the Notice of Disagreement. If Parent and the Stockholder Representative fail to resolve the matters set forth in the Notice of Disagreement within such period, Parent and the Stockholder Representative shall submit the issues remaining in dispute to an independent registered public accounting firm with headquarters based in the United States reasonably acceptable to Parent and the Stockholder Representative (the “Independent Accountants”) for resolution applying the principles, policies, and practices referred to in this Section 2.7. If issues are submitted to the Independent Accountants for resolution, (i) the Stockholder Representative and Parent shall furnish or cause to be furnished to the Independent Accountants such work papers and other documents and information relating to the disputed issues as the Independent Accountants may request and as are available to such party or its agents and representatives, and (ii) each of the Stockholder Representative and Parent shall be afforded the opportunity to present to the Independent Accountants any event material relating to the disputed issues and to discuss the issues with the Independent Accountants. The Independent Accountants shall resolve all such disputed issues in accordance U.S. GAAP. The determination by the Independent Accountants of the Actual Closing Net Assets Adjustment shall be set forth in a written notice (the “Independent Accountants’ Notice”) to be delivered to each of the Stockholder Representative and Parent within the later of (x) thirty (30) days following of the Closing Date and (y) five (5) Business Days prior submission to the consummation Independent Accountants of the Revelyst Merger (if such merger is consummated) (issues remaining in dispute. The determination of the later of (x) and (y), the “Closing Statement Deadline”), Vista Outdoor and Revelyst shall cooperate in good faith and jointly prepare a statement (the “Closing Statement”) setting forth their joint good faith calculation of (i) Closing Cash, (ii) Closing Working Capital, (iii) Closing Debt, (iv) Transaction Expenses, (v) Closing Taxes, (vi) Closing Transaction Tax Deductions and (vii) the Closing Adjustment Amount, in each case, together with reasonably detailed schedules with respect to the determination thereof to support the calculations Independent Accountants as set forth in the Closing Statement. The Closing Statement Independent Accountants Notice shall be prepared in accordance with a final, binding, and conclusive of the terms of this Agreement, including the Accounting Principles. The Parties agree that the purpose of preparing the Closing Statement is to measure and determine the amount of Closing Cash, Closing Working Capital, Closing Debt, Transaction Expenses, Closing Taxes, Closing Transaction Tax Deductions and the Closing Actual Net Assets Adjustment Amount in accordance with the terms of this Agreement, including the Accounting Principles. Each of Vista Outdoor and Revelyst shall execute the Closing Statement to certify the calculations set forth therein and upon such certification the Closing Statement shall become final and binding upon the Parties; provided, that, notwithstanding anything to the contrary in this Agreement, in the event that Vista Outdoor and Revelyst do not agree upon and execute the Closing Statement by the Closing Statement Deadline, then the Estimated Closing Statement shall be deemed to be the Closing Statement used for all purposes under this Agreement and neither Party nor their respective Affiliates shall have any further obligation pursuant to this Section 2.06.
(e) In connection with the preparation Escrow Agreement. The fees and expenses of the Closing Statement, Vista Outdoor shall, subject to reasonable advance written request Independent Accountants shall be allocated between Parent and the Stockholder Representative in such manner that the Stockholder Representative (email being sufficient), provide Revelyst and its Representatives with reasonable access during normal business hours, solely on behalf of the Indemnifying Parties and in its capacity as the Stockholder Representative, not in its individual capacity) shall be responsible for that portion of such a manner as to not interfere with the normal operations of Vista Outdoor fees and each other member of the Vista Outdoor Group, to the Records and relevant advisors (subject to the execution of any required customary access letters), personnel and properties of Vista Outdoor and each other member of the Vista Outdoor Group to the extent reasonably relevant to the preparation of the Closing Statement; provided that Revelyst shall, and shall cause its Representatives to, keep any nonpublic information shared with it confidential.
(f) Within three (3) Business Days after the Closing Statement becomes final and binding upon the Parties in accordance with this Section 2.06, if the Closing Adjustment Amount is:
(i) greater than the Estimated Closing Adjustment Amount, then Vista Outdoor shall pay Revelyst an amount of cash expenses equal to such difference;
(ii) less than the Estimated Closing Adjustment Amount, then Revelyst shall pay Vista Outdoor an amount of cash equal to such difference; or
(iii) equal to the Estimated Closing Adjustment Amount, then neither Party shall have any obligation to make fees and expenses multiplied by a payment to the other Party in respect thereof.
(g) Each Party acknowledges that the agreements contained in this Section 2.06 are an integral part of the Transactions, and that, without these agreementsfraction, the other Party would not have entered into this Agreement and each other Transaction Document to numerator of which it is the aggregate dollar value of disputed line items submitted in the Notice of Disagreement that were resolved in a party. Accordingly, if a Party fails to promptly pay any amount due pursuant to this Section 2.06 (such Party, the “Defaulting Party”), and, in order to obtain payment of such amount, the other Party commences a legal action which results in an order against the Defaulting Party for such amount, or any portion thereof, the Defaulting Party shall pay to the other Party such other Party’s out-of-pocket, reasonable and documented costs and expenses (including attorneys’ fees) incurred in connection with such legal action, together with interest on such due and unpaid amounts pursuant to this Section 2.06 at a rate equal to (i) the prime rate as published in The Wall Street Journal in effect on the date such amount was required to be paid plus (ii) 2% through the date such payment was actually received.
(h) Vista Outdoor agrees that, manner further from the Closing Date through the date that the Closing Adjustment Amount is finally determined in accordance with this Section 2.06, it shall not, and shall cause each other member of the Vista Outdoor Group not to, take any action with respect to any accounting books, records, policies or procedures on which the Closing Statement is based that would impede or delay the final determination of the Closing Adjustment Amount.
(i) Notwithstanding anything to the contrary in this Agreement or any investigation or examination conducted, or any knowledge possessed or acquired, by or on behalf of Vista Outdoor or Revelyst, the process position set forth in this Section 2.06 the Notice of Disagreement and closer to the position submitted by Parent in the Net Assets Calculation and the denominator of which is the total dollar value of the disputed line items so submitted; Parent shall be responsible for the sole remainder of any such fees and exclusive remedy between expenses. Payment of any fees and expenses of the Parties for any disputes related to Independent Accountants payable by the items required to Stockholder Representative may be included or reflected in paid from the calculation of Closing Cash, Closing Working Capital, Closing Debt, Transaction Expenses, Closing Taxes, Closing Transaction Tax Deductions and the Closing Adjustment Stockholder Representative Escrow Amount.
(j) Without the prior written consent of ▇▇▇▇▇▇ ▇▇▇▇▇▇, none of the time periods set forth in this Section 2.06 shall be extended or waived by any Party. For the avoidance of doubt, from and after the closing of the Revelyst Merger, neither Olibre Parent, Revelyst nor any of their respective Subsidiaries shall have any obligation with respect to this Section 2.06. Each Party agrees that Olibre Parent is a third party beneficiary of this Section 2.06(j).
(k) For the purposes of this Agreement:
Appears in 1 contract
Closing Adjustments. (ai) At least five Not later than two (52) Business Days prior to the Closing DateClosing, Vista Outdoor Sellers shall prepare and deliver to Parent a statement Buyer the following statements, signed by Sellers (collectively, the “Estimated Closing Statement”):
(A) setting forth Vista Outdoor’s a statement calculating the Sellers’ good faith estimate of the anticipated outstanding Indebtedness for the Company as of the close of business on the Closing Date and the Persons to whom such outstanding Indebtedness is owed and an aggregate total of such outstanding Indebtedness (i) Closing Cash (such estimate, the “Estimated Closing CashIndebtedness Amount”), ;
(iiB) Closing Working Capital (such estimate, “Estimated Closing Working Capital”), (iii) Closing Debt (such estimate, “Estimated Closing Debt”), (iv) a statement calculating the Sellers’ good faith estimate of the anticipated Transaction Expenses remaining unpaid as of the close of business on the Closing Date (including an itemized list of each such estimate, unpaid Transaction Expense with a description of the nature of such expense and the Persons to whom such expense is owed) (the “Estimated Transaction Expenses”), ;
(vC) a statement calculating the Sellers’ good faith estimate of the anticipated amount of the Work in Process for the Company as of the Closing Taxes (such estimate, the “Estimated Closing TaxesWork in Process Amount”), ; and
(viD) a statement calculating the Sellers’ good faith estimate of the anticipated Net Working Capital for the Company as of the Closing Transaction Tax Deductions (such estimate, the “Estimated Closing Transaction Tax Deductions”), (vii) the Closing Non-Cash Debt (such estimate, “Estimated Closing Non-Cash DebtNet Working Capital”) and (viii) the amount, if any, by which the Estimated Closing Adjustment Amount, in each case, together with reasonably detailed schedules with respect to Net Working Capital is greater than or less than the determination thereof to support Target Net Working Capital (the estimates set forth in the “Estimated Closing Statement. Net Working Capital Adjustment”).
(ii) The Estimated Closing Statement shall be prepared in accordance with GAAP applied on a consistent basis with the terms of Financial Statements provided by Sellers pursuant to this Agreement, including and shall be delivered together with supporting documentation used by the Accounting Principles. The Parties agree that the purpose of Sellers in calculating and preparing the Estimated Closing Statement is to estimate and such other documentation as Buyer shall reasonably request. The Preliminary Purchase Price shall be adjusted consistent with Section 2.02 based on the amounts of Closing CashEstimated Indebtedness Amount, Closing Working Capital, Closing Debt, the Estimated Transaction Expenses, Closing Taxes, Closing Transaction Tax Deductions and the Closing Adjustment Amount in accordance with the terms of this Agreement, including the Accounting Principles. Vista Outdoor shall consider in good faith and implement all reasonable comments provided by Parent to the Estimated Closing Statement (including the components thereof) at least one Business Day prior to the Closing Date.
(b) At least five (5) Business Days prior to Vista Outdoor’s delivery of the Estimated Closing Statement, and Work in any event at least ten (10) Business Days prior to the Closing Date, Vista Outdoor shall prepare and deliver to Parent a good faith non-binding, advisory draft of the Estimated Closing Statement (the “Draft Estimated Closing Statement”), including reasonably detailed schedules with respect to the determination thereof to support the estimates set forth therein. In furtherance of Vista Outdoor’s preparation of the Estimated Closing Statement, Vista Outdoor shall consider in good faith all reasonable comments provided to the Draft Estimated Closing Statement by Parent at least one Business Day prior to delivery of the Estimated Closing Statement.
(c) Within ten (10) Business Days of the date of this Agreement, Vista Outdoor shall prepare and deliver to Parent a good faith non-binding, advisory draft of the Estimated Closing Statement, including reasonably detailed schedules with respect to the determination thereof to support the estimates set forth therein (an “Advisory Estimated Closing Statement”), assuming, for purposes of creating such Advisory Estimated Closing Statement, a Reference Time of 11:59 p.m. New York City time on September 30, 2024. Within ten (10) Business Days following October 31, 2024, Vista Outdoor shall prepare and deliver to Parent, an Advisory Estimated Closing Statement assuming, for purposes of creating such Advisory Estimated Closing Statement, a Reference Time of 11:59 p.m. New York City time on October 31, 2024. In furtherance of Vista Outdoor’s preparation of the Draft Estimated Closing Statement Process Amount and the Estimated Closing Statement, Vista Outdoor Net Working Capital Adjustment and shall consider in good faith all reasonable comments provided be subject to the Advisory Estimated Closing Statements by Parent at least one (1) Business Day prior to delivery of the Draft Estimated Closing Statement.
(d) As promptly as practicable, and in any event within the later of (x) thirty (30) days following further adjustment after the Closing Date and (y) five (5) Business Days prior to the consummation of the Revelyst Merger (if such merger is consummated) (the later of (x) and (y), the “Closing Statement Deadline”), Vista Outdoor and Revelyst shall cooperate in good faith and jointly prepare a statement (the “Closing Statement”) setting forth their joint good faith calculation of (i) Closing Cash, (ii) Closing Working Capital, (iii) Closing Debt, (iv) Transaction Expenses, (v) Closing Taxes, (vi) Closing Transaction Tax Deductions and (vii) the Closing Adjustment Amount, in each case, together with reasonably detailed schedules with respect to the determination thereof to support the calculations as set forth in the Closing Statement. The Closing Statement shall be prepared in accordance with the terms of this Agreement, including the Accounting Principles. The Parties agree that the purpose of preparing the Closing Statement is to measure and determine the amount of Closing Cash, Closing Working Capital, Closing Debt, Transaction Expenses, Closing Taxes, Closing Transaction Tax Deductions and the Closing Adjustment Amount in accordance with the terms of this Agreement, including the Accounting Principles. Each of Vista Outdoor and Revelyst shall execute the Closing Statement to certify the calculations set forth therein and upon such certification the Closing Statement shall become final and binding upon the Parties; provided, that, notwithstanding anything to the contrary in this Agreement, in the event that Vista Outdoor and Revelyst do not agree upon and execute the Closing Statement by the Closing Statement Deadline, then the Estimated Closing Statement shall be deemed to be the Closing Statement for all purposes under this Agreement and neither Party nor their respective Affiliates shall have any further obligation pursuant to this Section 2.062.05(c) below.
(e) In connection with the preparation of the Closing Statement, Vista Outdoor shall, subject to reasonable advance written request (email being sufficient), provide Revelyst and its Representatives with reasonable access during normal business hours, and in such a manner as to not interfere with the normal operations of Vista Outdoor and each other member of the Vista Outdoor Group, to the Records and relevant advisors (subject to the execution of any required customary access letters), personnel and properties of Vista Outdoor and each other member of the Vista Outdoor Group to the extent reasonably relevant to the preparation of the Closing Statement; provided that Revelyst shall, and shall cause its Representatives to, keep any nonpublic information shared with it confidential.
(f) Within three (3) Business Days after the Closing Statement becomes final and binding upon the Parties in accordance with this Section 2.06, if the Closing Adjustment Amount is:
(i) greater than the Estimated Closing Adjustment Amount, then Vista Outdoor shall pay Revelyst an amount of cash equal to such difference;
(ii) less than the Estimated Closing Adjustment Amount, then Revelyst shall pay Vista Outdoor an amount of cash equal to such difference; or
(iii) equal to the Estimated Closing Adjustment Amount, then neither Party shall have any obligation to make a payment to the other Party in respect thereof.
(g) Each Party acknowledges that the agreements contained in this Section 2.06 are an integral part of the Transactions, and that, without these agreements, the other Party would not have entered into this Agreement and each other Transaction Document to which it is a party. Accordingly, if a Party fails to promptly pay any amount due pursuant to this Section 2.06 (such Party, the “Defaulting Party”), and, in order to obtain payment of such amount, the other Party commences a legal action which results in an order against the Defaulting Party for such amount, or any portion thereof, the Defaulting Party shall pay to the other Party such other Party’s out-of-pocket, reasonable and documented costs and expenses (including attorneys’ fees) incurred in connection with such legal action, together with interest on such due and unpaid amounts pursuant to this Section 2.06 at a rate equal to (i) the prime rate as published in The Wall Street Journal in effect on the date such amount was required to be paid plus (ii) 2% through the date such payment was actually received.
(h) Vista Outdoor agrees that, from the Closing Date through the date that the Closing Adjustment Amount is finally determined in accordance with this Section 2.06, it shall not, and shall cause each other member of the Vista Outdoor Group not to, take any action with respect to any accounting books, records, policies or procedures on which the Closing Statement is based that would impede or delay the final determination of the Closing Adjustment Amount.
(i) Notwithstanding anything to the contrary in this Agreement or any investigation or examination conducted, or any knowledge possessed or acquired, by or on behalf of Vista Outdoor or Revelyst, the process set forth in this Section 2.06 shall be the sole and exclusive remedy between the Parties for any disputes related to the items required to be included or reflected in the calculation of Closing Cash, Closing Working Capital, Closing Debt, Transaction Expenses, Closing Taxes, Closing Transaction Tax Deductions and the Closing Adjustment Amount.
(j) Without the prior written consent of ▇▇▇▇▇▇ ▇▇▇▇▇▇, none of the time periods set forth in this Section 2.06 shall be extended or waived by any Party. For the avoidance of doubt, from and after the closing of the Revelyst Merger, neither Olibre Parent, Revelyst nor any of their respective Subsidiaries shall have any obligation with respect to this Section 2.06. Each Party agrees that Olibre Parent is a third party beneficiary of this Section 2.06(j).
(k) For the purposes of this Agreement:
Appears in 1 contract
Closing Adjustments. (a) At least five (5) Business Days Seller shall deliver to Purchaser prior to the Closing Datea written certificate executed by Seller’s chief financial officer setting forth his or her good faith estimate of the Net Working Capital, Vista Outdoor which shall prepare and deliver to Parent include a statement separate line item for each element comprising Net Working Capital (the “Estimated Net Working Capital”) as of the Closing Date (the “Estimated Net Working Capital Statement”) setting forth Vista Outdoor’s ), and a good faith estimate of (i) the balance sheet of the Business as of the Closing Cash (such estimate, “Date from which Estimated Closing Cash”), (ii) Closing Net Working Capital shall be derived (such estimate, “Estimated Closing Working Capital”), (iii) Closing Debt (such estimate, “Estimated Closing Debt”), (iv) Transaction Expenses (such estimate, “Estimated Transaction Expenses”), (v) Closing Taxes (such estimate, “Estimated Closing Taxes”), (vi) Closing Transaction Tax Deductions (such estimate, “Estimated Closing Transaction Tax Deductions”), (vii) including a good faith estimate of the Closing Non-Cash Debt (such estimate, “Estimated Closing Non-Cash Debt”) and (viii) the Estimated Closing Adjustment Amount, in each case, together with reasonably detailed schedules with respect to the determination thereof to support the estimates set forth in the Estimated Closing StatementIndebtedness). The Estimated Net Working Capital Statement and the estimated balance sheet shall be prepared in accordance with GAAP and Seller Accounting Principles as outlined in Exhibit H and shall be in form and substance reasonably satisfactory to Purchaser. Purchaser shall have the opportunity to provide comments to Seller on the Estimated Net Working Capital Statement and the closing balance sheet (including the determination of Closing Indebtedness) and the Estimated Net Working Capital Statement shall be prepared modified prior to the Closing Date to reflect any comments of Purchaser that are consistent with the appropriate calculation of Estimated Net Working Capital and Closing Indebtedness in accordance with the terms of this Agreement, including . Seller shall permit Purchaser and its representatives and advisors the Accounting Principles. The Parties agree that the purpose of preparing opportunity to review all workpapers and other supporting documentation regarding the Estimated Closing Net Working Capital Statement is to estimate the amounts of Closing Cash, Closing Working Capital, Closing Debt, Transaction Expenses, Closing Taxes, Closing Transaction Tax Deductions and the Closing Adjustment Amount in accordance with estimated balance sheet of the terms Business as of this Agreement, including the Accounting Principles. Vista Outdoor shall consider in good faith and implement all reasonable comments provided by Parent to the Estimated Closing Statement (including the components thereof) at least one Business Day prior to the Closing Date.
(b) At least five (5) Business Days prior to Vista Outdoor’s delivery of . If the Estimated Closing Statement, and in any event at least ten (10) Business Days prior to Net Working Capital is greater than the Closing Date, Vista Outdoor shall prepare and deliver to Parent a good faith non-binding, advisory draft of Net Working Capital shown on the Estimated Closing Reference Net Working Capital Statement (the “Draft Estimated Closing StatementReference Net Working Capital”), including reasonably detailed schedules with respect the Cash Purchase Price to be paid at the determination thereof to support the estimates set forth therein. In furtherance of Vista Outdoor’s preparation of Closing shall be increased dollar for dollar by such excess amount, and, if the Estimated Closing Statement, Vista Outdoor shall consider in good faith all reasonable comments provided to Net Working Capital is less than the Draft Estimated Closing Statement by Parent at least one Business Day prior to delivery of the Estimated Closing Statement.
(c) Within ten (10) Business Days of the date of this Agreement, Vista Outdoor shall prepare and deliver to Parent a good faith non-binding, advisory draft of the Estimated Closing Statement, including reasonably detailed schedules with respect to the determination thereof to support the estimates set forth therein (an “Advisory Estimated Closing Statement”), assuming, for purposes of creating such Advisory Estimated Closing Statement, a Reference Time of 11:59 p.m. New York City time on September 30, 2024. Within ten (10) Business Days following October 31, 2024, Vista Outdoor shall prepare and deliver to Parent, an Advisory Estimated Closing Statement assuming, for purposes of creating such Advisory Estimated Closing Statement, a Reference Time of 11:59 p.m. New York City time on October 31, 2024. In furtherance of Vista Outdoor’s preparation of the Draft Estimated Closing Statement and the Estimated Closing Statement, Vista Outdoor shall consider in good faith all reasonable comments provided to the Advisory Estimated Closing Statements by Parent at least one (1) Business Day prior to delivery of the Draft Estimated Closing Statement.
(d) As promptly as practicable, and in any event within the later of (x) thirty (30) days following the Closing Date and (y) five (5) Business Days prior to the consummation of the Revelyst Merger (if such merger is consummated) (the later of (x) and (y), the “Closing Statement Deadline”), Vista Outdoor and Revelyst shall cooperate in good faith and jointly prepare a statement (the “Closing Statement”) setting forth their joint good faith calculation of (i) Closing Cash, (ii) Closing Net Working Capital, (iii) Closing Debt, (iv) Transaction Expenses, (v) Closing Taxes, (vi) Closing Transaction Tax Deductions and (vii) the Closing Adjustment Amount, in each case, together with reasonably detailed schedules with respect to the determination thereof to support the calculations set forth in the Closing StatementCash Purchase Price shall be decreased dollar for dollar by such shortfall. The Closing Statement shall be prepared in accordance with the terms of this Agreement, including the Accounting Principles. The Parties agree that the purpose of preparing the Closing Statement Cash Purchase Price as so adjusted is to measure and determine the amount of Closing Cash, Closing Working Capital, Closing Debt, Transaction Expenses, Closing Taxes, Closing Transaction Tax Deductions and the Closing Adjustment Amount in accordance with the terms of this Agreement, including the Accounting Principles. Each of Vista Outdoor and Revelyst shall execute the Closing Statement to certify the calculations set forth therein and upon such certification the Closing Statement shall become final and binding upon the Parties; provided, that, notwithstanding anything to the contrary in this Agreement, in the event that Vista Outdoor and Revelyst do not agree upon and execute the Closing Statement by the Closing Statement Deadline, then the Estimated Closing Statement shall be deemed to be the Closing Statement for all purposes under this Agreement and neither Party nor their respective Affiliates shall have any further obligation pursuant to this Section 2.06.
(e) In connection with the preparation of the Closing Statement, Vista Outdoor shall, subject to reasonable advance written request (email being sufficient), provide Revelyst and its Representatives with reasonable access during normal business hours, and in such a manner as to not interfere with the normal operations of Vista Outdoor and each other member of the Vista Outdoor Group, to the Records and relevant advisors (subject to the execution of any required customary access letters), personnel and properties of Vista Outdoor and each other member of the Vista Outdoor Group to the extent reasonably relevant to the preparation of the Closing Statement; provided that Revelyst shall, and shall cause its Representatives to, keep any nonpublic information shared with it confidential.
(f) Within three (3) Business Days after the Closing Statement becomes final and binding upon the Parties in accordance with this Section 2.06, if the Closing Adjustment Amount is:
(i) greater than the Estimated Closing Adjustment Amount, then Vista Outdoor shall pay Revelyst an amount of cash equal to such difference;
(ii) less than the Estimated Closing Adjustment Amount, then Revelyst shall pay Vista Outdoor an amount of cash equal to such difference; or
(iii) equal to the Estimated Closing Adjustment Amount, then neither Party shall have any obligation to make a payment to the other Party in respect thereof.
(g) Each Party acknowledges that the agreements contained in this Section 2.06 are an integral part of the Transactions, and that, without these agreements, the other Party would not have entered into this Agreement and each other Transaction Document to which it is a party. Accordingly, if a Party fails to promptly pay any amount due pursuant to this Section 2.06 (such Party, hereafter called the “Defaulting PartyEstimated Cash Purchase Price.”), and, in order to obtain payment of such amount, the other Party commences a legal action which results in an order against the Defaulting Party for such amount, or any portion thereof, the Defaulting Party shall pay to the other Party such other Party’s out-of-pocket, reasonable and documented costs and expenses (including attorneys’ fees) incurred in connection with such legal action, together with interest on such due and unpaid amounts pursuant to this Section 2.06 at a rate equal to (i) the prime rate as published in The Wall Street Journal in effect on the date such amount was required to be paid plus (ii) 2% through the date such payment was actually received.
(h) Vista Outdoor agrees that, from the Closing Date through the date that the Closing Adjustment Amount is finally determined in accordance with this Section 2.06, it shall not, and shall cause each other member of the Vista Outdoor Group not to, take any action with respect to any accounting books, records, policies or procedures on which the Closing Statement is based that would impede or delay the final determination of the Closing Adjustment Amount.
(i) Notwithstanding anything to the contrary in this Agreement or any investigation or examination conducted, or any knowledge possessed or acquired, by or on behalf of Vista Outdoor or Revelyst, the process set forth in this Section 2.06 shall be the sole and exclusive remedy between the Parties for any disputes related to the items required to be included or reflected in the calculation of Closing Cash, Closing Working Capital, Closing Debt, Transaction Expenses, Closing Taxes, Closing Transaction Tax Deductions and the Closing Adjustment Amount.
(j) Without the prior written consent of ▇▇▇▇▇▇ ▇▇▇▇▇▇, none of the time periods set forth in this Section 2.06 shall be extended or waived by any Party. For the avoidance of doubt, from and after the closing of the Revelyst Merger, neither Olibre Parent, Revelyst nor any of their respective Subsidiaries shall have any obligation with respect to this Section 2.06. Each Party agrees that Olibre Parent is a third party beneficiary of this Section 2.06(j).
(k) For the purposes of this Agreement:
Appears in 1 contract
Sources: Purchase and Sale Agreement (Commercial Vehicle Group, Inc.)
Closing Adjustments. (ai) At least five (5) Business Days prior to before the Closing Date, Vista Outdoor ▇▇▇▇ Ohio Finance shall prepare and deliver to Parent the OpCo Buyer a statement (the “JCC Estimated Closing Statement”) setting forth Vista Outdoor▇▇▇▇ Ohio Finance’s reasonable, good faith estimate of (iA) Closing Cash (such estimate, “Estimated Closing Cash”), (ii) the JCC Closing Working Capital (such estimate, the “JCC Estimated Closing Working Capital”), (iiiB) Closing Debt the Indebtedness of JCC as of the Reference Time (such estimate, the “JCC Estimated Closing DebtIndebtedness”), (ivC) the JCC Closing Date Cash (the “JCC Estimated Closing Date Cash”), (D) the Transaction Expenses of JCC to be paid by the OpCo Buyer on behalf of JCC (such estimate, excluding the R&W Insurance Cost Seller Portion) (the “JCC Estimated Transaction Expenses”), (vE) Closing Taxes ▇▇▇▇ Ohio Finance’s calculation of the JCC Membership Interests Purchase Price and (such estimate, F) an unaudited balance sheet of JCC as of the Reference Time (without giving effect to the Transactions) (the “JCC Estimated Closing TaxesBalance Sheet”), (vi) Closing Transaction Tax Deductions (such estimate, “Estimated Closing Transaction Tax Deductions”), (vii) the Closing Non-Cash Debt (such estimate, “Estimated Closing Non-Cash Debt”) and (viii) the Estimated Closing Adjustment Amount, in each case, together with reasonably detailed schedules with respect to the determination thereof to support the estimates . The calculations set forth in the JCC Estimated Closing Working Capital and the JCC Estimated Closing Balance Sheet shall be prepared and calculated in accordance with GAAP. An illustrative example of an JCC Estimated Closing Statement. The , JCC Estimated Closing Statement shall be prepared in accordance with Balance Sheet and calculation of the terms of this Agreement, including the Accounting Principles. The Parties agree that the purpose of preparing the Estimated Closing Statement is to estimate the amounts of Closing Cash, JCC Closing Working Capital, JCC Closing DebtDate Indebtedness, Transaction ExpensesJCC Closing Date Cash, Closing Taxes, JCC Membership Interests Purchase Price and JCC Closing Transaction Tax Deductions Expenses is set forth on Exhibit B (the “JCC Sample Statement”).
(ii) Following receipt of the JCC Estimated Closing Statement, ▇▇▇▇ Ohio Finance shall use its commercially reasonable efforts to permit OpCo Buyer and its Representatives at all reasonable times and upon reasonable notice to review the Seller’s and the Closing Adjustment Amount in accordance with the terms of this Agreement, including the Accounting Principles. Vista Outdoor shall consider in good faith and implement all reasonable comments provided by Parent Company’s working papers relating to the calculation and preparation of the JCC Estimated Closing Working Capital, the JCC Estimated Indebtedness, the JCC Estimated Closing Date Cash, the JCC Estimated Transaction Expenses and the JCC Estimated Closing Balance Sheet, as well as the accounting books and records of JCC relating thereto, and ▇▇▇▇ Ohio Finance shall make reasonably available its and JCC’s respective Representatives (if any) responsible for the preparation of the JCC Estimated Closing Statement in order to respond to the inquiries of OpCo Buyer and its Representatives. Prior to the Closing, the parties shall reasonably attempt to resolve any disagreements concerning the computation of any of the items included in the JCC Estimated Closing Statement (including the components thereof) at least one Business Day prior to the Closing Date.
(b) At least five (5) Business Days prior to Vista Outdoor’s delivery of the JCC Estimated Closing Statement, and in any event at least ten (10) Business Days prior to the Closing Date, Vista Outdoor shall prepare and deliver to Parent a good faith non-binding, advisory draft of the Estimated Closing Statement (the “Draft Estimated Closing Statement”), including reasonably detailed schedules with respect to the determination thereof to support the estimates set forth therein. In furtherance of Vista Outdoor’s preparation of the Estimated Closing Statement, Vista Outdoor shall consider in good faith all reasonable comments provided to the Draft Estimated Closing Statement by Parent at least one Business Day prior to delivery of the Estimated Closing Statement.
(c) Within ten (10) Business Days of the date of this Agreement, Vista Outdoor shall prepare and deliver to Parent a good faith non-binding, advisory draft of the Estimated Closing Statement, including reasonably detailed schedules with respect to the determination thereof to support the estimates set forth therein (an “Advisory Estimated Closing Statement”), assuming, for purposes of creating such Advisory Estimated Closing Statement, a Reference Time of 11:59 p.m. New York City time on September 30, 2024. Within ten (10) Business Days following October 31, 2024, Vista Outdoor shall prepare and deliver to Parent, an Advisory Estimated Closing Statement assuming, for purposes of creating such Advisory Estimated Closing Statement, a Reference Time of 11:59 p.m. New York City time on October 31, 2024. In furtherance of Vista Outdoor’s preparation of the Draft Estimated Closing Statement and the Estimated Closing Statement, Vista Outdoor shall consider in good faith all reasonable comments provided to the Advisory Estimated Closing Statements by Parent at least one (1) Business Day prior to delivery of the Draft Estimated Closing Statement.
(d) As promptly as practicable, and in any event within the later of (x) thirty (30) days following the Closing Date and (y) five (5) Business Days prior to the consummation of the Revelyst Merger (if such merger is consummated) (the later of (x) and (y), the “Closing Statement Deadline”), Vista Outdoor and Revelyst shall cooperate in good faith and jointly prepare a statement (the “Closing Statement”) setting forth their joint good faith calculation of (i) Closing Cash, (ii) Closing Working Capital, (iii) the JCC Estimated Indebtedness, the JCC Estimated Closing Debt, (iv) Transaction Expenses, (v) Closing Taxes, (vi) Closing Transaction Tax Deductions and (vii) the Closing Adjustment Amount, in each case, together with reasonably detailed schedules with respect to the determination thereof to support the calculations set forth in the Closing Statement. The Closing Statement shall be prepared in accordance with the terms of this Agreement, including the Accounting Principles. The Parties agree that the purpose of preparing the Closing Statement is to measure and determine the amount of Closing Date Cash, Closing Working Capital, Closing Debt, the JCC Estimated Transaction Expenses, Closing Taxes, Closing Transaction Tax Deductions Expenses and the JCC Estimated Closing Adjustment Amount in accordance with the terms of this Agreement, including the Accounting Principles. Each of Vista Outdoor and Revelyst shall execute the Closing Statement to certify the calculations set forth therein and upon such certification the Closing Statement shall become final and binding upon the PartiesBalance Sheet); provided, that, notwithstanding anything to the contrary in this Agreement, in the event that Vista Outdoor it is acknowledged and Revelyst do agreed that if any disagreements cannot agree upon and execute the Closing Statement by the Closing Statement Deadlinebe resolved, then the Closing shall occur on the basis of the JCC Estimated Closing Statement shall be deemed to be the Closing Statement for all purposes under this Agreement and neither Party nor their respective Affiliates shall have any further obligation pursuant to this Section 2.06.
(e) In connection with the preparation of the Closing Statement, Vista Outdoor shall, subject to reasonable advance written request (email being sufficient), provide Revelyst and its Representatives with reasonable access during normal business hours, and in such a manner as to not interfere with the normal operations of Vista Outdoor and each other member of the Vista Outdoor Group, to the Records and relevant advisors (subject to the execution of any required customary access letters), personnel and properties of Vista Outdoor and each other member of the Vista Outdoor Group to the extent reasonably relevant to the preparation of the Closing Statement; provided that Revelyst shall, and shall cause its Representatives to, keep any nonpublic information shared with it confidential.
(f) Within three (3) Business Days after the Closing Statement becomes final and binding upon the Parties in accordance with this Section 2.06, if the Closing Adjustment Amount is:
(i) greater than the Estimated Closing Adjustment Amount, then Vista Outdoor shall pay Revelyst an amount of cash equal to such difference;
(ii) less than the Estimated Closing Adjustment Amount, then Revelyst shall pay Vista Outdoor an amount of cash equal to such difference; or
(iii) equal to the Estimated Closing Adjustment Amount, then neither Party shall have any obligation to make a payment to the other Party in respect thereof.
(g) Each Party acknowledges that the agreements contained in this Section 2.06 are an integral part of the Transactions, and that, without these agreements, the other Party would not have entered into this Agreement and each other Transaction Document to which it is a party. Accordingly, if a Party fails to promptly pay any amount due pursuant to this Section 2.06 (such Party, the “Defaulting Party”), and, in order to obtain payment of such amount, the other Party commences a legal action which results in an order against the Defaulting Party for such amount, or any portion thereof, the Defaulting Party shall pay to the other Party such other Party’s out-of-pocket, reasonable and documented costs and expenses (including attorneys’ fees) incurred in connection with such legal action, together with interest on such due and unpaid amounts pursuant to this Section 2.06 at a rate equal to (i) the prime rate as published in The Wall Street Journal in effect on the date such amount was required to be paid plus (ii) 2% through the date such payment was actually received.
(h) Vista Outdoor agrees that, from the Closing Date through the date that the Closing Adjustment Amount is finally determined in accordance with this Section 2.06, it shall not, and shall cause each other member of the Vista Outdoor Group not to, take any action with respect to any accounting books, records, policies or procedures on which the Closing Statement is based that would impede or delay the final determination of the Closing Adjustment Amount.
(i) Notwithstanding anything to the contrary in this Agreement or any investigation or examination conducted, or any knowledge possessed or acquired, by or on behalf of Vista Outdoor or Revelyst, the process set forth in this Section 2.06 shall be the sole and exclusive remedy between the Parties for any disputes related to the items required to be included or reflected in the calculation of Closing Cash, Closing Working Capital, Closing Debt, Transaction Expenses, Closing Taxes, Closing Transaction Tax Deductions and the Closing Adjustment Amount.
(j) Without the prior written consent of ▇▇▇▇▇▇ ▇▇▇▇▇▇Ohio Finance, none of the time periods set forth in this Section 2.06 and that any unresolved disagreements shall be extended or waived by any Party. For deferred for resolution pursuant to the avoidance of doubt, from and after the post-closing of the Revelyst Merger, neither Olibre Parent, Revelyst nor any of their respective Subsidiaries shall have any obligation with respect to this cash consideration adjustment process described in Section 2.06. Each Party agrees that Olibre Parent is a third party beneficiary of this Section 2.06(j2.06(b).
(k) For the purposes of this Agreement:
Appears in 1 contract
Closing Adjustments. (a) At least five (5) Business Days prior Each of AT&T and Insight has specified, as applicable, on Exhibit 1 to this Amendment the Closing DateNet Fair Market Value of the AT&T Assets, Vista Outdoor shall prepare the Net Fair Market Value of the Insight Contributed Assets, the AT&T Permitted Debt and deliver to Parent a statement (the “Estimated Closing Statement”) setting forth Vista Outdoor’s good faith estimate of (i) Closing Cash (such estimate, “Estimated Closing Cash”), (ii) Closing Working Capital (such estimate, “Estimated Closing Working Capital”), (iii) Closing Debt (such estimate, “Estimated Closing Debt”), (iv) Transaction Expenses (such estimate, “Estimated Transaction Expenses”), (v) Closing Taxes (such estimate, “Estimated Closing Taxes”), (vi) Closing Transaction Tax Deductions (such estimate, “Estimated Closing Transaction Tax Deductions”), (vii) the Closing Non-Cash Debt (such estimate, “Estimated Closing Non-Cash Debt”) and (viii) the Estimated Closing Adjustment Amount, in each case, together with reasonably detailed schedules with respect to the determination thereof to support the estimates set forth in the Estimated Closing Statement. The Estimated Closing Statement shall be prepared in accordance with the terms of this Agreement, including the Accounting Principles. The Parties agree that the purpose of preparing the Estimated Closing Statement is to estimate the amounts of Closing Cash, Closing Working Capital, Closing Insight Permitted Debt, Transaction Expenses, Closing Taxes, Closing Transaction Tax Deductions and each amount to be effective as of the Closing Adjustment Amount in accordance with the terms of this Agreement, including the Accounting Principles. Vista Outdoor shall consider in good faith and implement all reasonable comments provided by Parent to the Estimated Closing Statement (including the components thereof) at least one Business Day prior to the Closing DateClosing.
(b) At least five (5The first three sentences of Section 3.2(c) Business Days prior to Vista Outdoor’s delivery of the Estimated Original Agreement are amended and restated in their entirety as follows: The AT&T Assets will be contributed to the Partnership subject to debt in the amount of $321,762,400, minus the AT&T Closing StatementAdjustment if such amount is to be paid to the Partnership or plus the AT&T Closing Adjustment if such amount is to be paid by the Partnership, in each case as the AT&T Closing Adjustment is estimated as of the Closing Date pursuant to Section 3.3 (the "AT&T Permitted Debt"). The AT&T Permitted Debt will be represented by one or more Demand Notes which shall be assumed by the Partnership on the Closing Date and which shall be assumed immediately thereafter by Newco on the Closing Date and which shall be refinanced immediately thereafter with borrowings under the New Credit Agreement. The Insight Contributed Assets will be contributed to the Partnership subject to debt in the amount of $547,572,000, minus the Insight Closing Adjustment if such amount is to be paid to the Partnership or plus the Insight Closing Adjustment if such amount is to be paid by the Partnership, in each case as the Insight Closing Adjustment is estimated as of the Closing Date pursuant to Section 3.3 (the "Insight Permitted Debt"). The Insight Permitted Debt will include, without limitation, (i) the amount to be borrowed by Insight under one or more Demand Notes to finance a portion of the purchase price payable by Insight under the Sale Agreement, which Demand Notes shall be assumed by the Partnership on the Closing Date and which shall be assumed immediately thereafter by Newco on the Closing Date and which shall be refinanced immediately thereafter with borrowings under the New Credit Agreement, (ii) the obligation of Insight Central Ohio to make payments to its preferred interest holder, Coaxial Central Ohio (the "Insight Central Ohio Component of the Insight Permitted Debt"), in an amount sufficient to enable Coaxial Central Ohio to pay (1) principal on its $140,000,000 10% Senior Notes due 2006 and (2) the accreted value on Coaxial LLC's $55,869,000 12 7/8% Senior Discount Notes due 2008 (collectively, the "Coaxial Central Ohio Debt"), which indebtedness will remain outstanding, and in any event at least ten (10iii) Business Days prior to the Closing Dateprincipal amount of indebtedness outstanding under the Insight Central Ohio Credit Agreement, Vista Outdoor shall prepare and deliver to Parent a good faith non-binding, advisory draft of the Estimated Closing Statement (the “Draft Estimated Closing Statement”), including reasonably detailed schedules with respect to the determination thereof to support the estimates set forth therein. In furtherance of Vista Outdoor’s preparation of the Estimated Closing Statement, Vista Outdoor shall consider in good faith all reasonable comments provided to the Draft Estimated Closing Statement by Parent at least one Business Day prior to delivery of the Estimated Closing Statementwhich indebtedness will remain outstanding.
(c) Within ten (10The first four sentences of Section 3.2(d) Business Days of the date of this Agreement, Vista Outdoor shall prepare Original Agreement are amended and deliver to Parent a good faith non-binding, advisory draft of the Estimated Closing Statement, including reasonably detailed schedules with respect restated in their entirety as follows: Immediately prior to the determination thereof Closing, the AT&T Subsidiaries or their transferees and Insight will enter into the Demand Notes pursuant to support the estimates set forth therein (an “Advisory Estimated Closing Statement”), assuming, for purposes of creating such Advisory Estimated Closing Statement, a Reference Time of 11:59 p.m. New York City time on September 30, 2024. Within ten (10) Business Days following October 31, 2024, Vista Outdoor shall prepare and deliver to Parent, an Advisory Estimated Closing Statement assuming, for purposes of creating such Advisory Estimated Closing Statement, a Reference Time of 11:59 p.m. New York City time on October 31, 2024. In furtherance of Vista Outdoor’s preparation of the Draft Estimated Closing Statement and the Estimated Closing Statement, Vista Outdoor shall consider in good faith all reasonable comments provided to the Advisory Estimated Closing Statements by Parent at least one which (1) Business Day prior the AT&T Subsidiaries or their transferees will refinance debt in an amount equal to delivery all of the Draft Estimated AT&T Permitted Debt and (2) Insight will refinance debt in an amount equal to a portion of the Insight Permitted Debt, other than the Insight Central Ohio Component of the Insight Permitted Debt and other than the indebtedness under the Revolving Credit Agreement dated as of October 7, 1998, as heretofore amended, among Insight Central Ohio and the lenders party thereto (the "Insight Central Ohio Credit Agreement"). On the Closing StatementDate Newco will enter into a credit agreement on commercially reasonable terms (the "New Credit Agreement"), pursuant to which Newco will refinance all remaining indebtedness outstanding under the respective bank credit agreements of Indiana LLC and Insight Kentucky Partners I, L.P. (the "Existing Bank Debt"). Prior to the Partnership and Newco assuming the Demand Notes representing a portion of the Insight Permitted Debt, Insight shall be solely liable for such Demand Notes and TCI LLC shall not be liable for the foregoing indebtedness. Prior to the Partnership and Newco assuming the Demand Notes representing the AT&T Permitted Debt, the AT&T Subsidiaries or their transferees shall be solely liable for such Demand Notes and Insight shall not be liable for the foregoing indebtedness. On the Closing Date the Partnership will assume the Demand Notes, which in turn Newco will immediately assume from the Partnership, and the AT&T Subsidiaries or their transferees and Insight will be released from all of their obligations under the Demand Notes in accordance with the provisions of the related Assumption Agreement and the New Credit Agreement will thereafter be non-recourse to TCI LLC and Insight.
(d) As promptly as practicable, and in any event within the later of (x) thirty (30) days following the Closing Date and (y) five (5) Business Days prior to the consummation Section 3.3 of the Revelyst Merger (if such merger Original Agreement is consummated) (the later of (x) amended and (y), the “Closing Statement Deadline”), Vista Outdoor and Revelyst shall cooperate restated in good faith and jointly prepare a statement (the “Closing Statement”) setting forth their joint good faith calculation of (i) Closing Cash, (ii) Closing Working Capital, (iii) Closing Debt, (iv) Transaction Expenses, (v) Closing Taxes, (vi) Closing Transaction Tax Deductions and (vii) the Closing Adjustment Amount, in each case, together with reasonably detailed schedules with respect to the determination thereof to support the calculations set forth in the Closing Statement. The Closing Statement shall be prepared in accordance with the terms of this Agreement, including the Accounting Principles. The Parties agree that the purpose of preparing the Closing Statement is to measure and determine the amount of Closing Cash, Closing Working Capital, Closing Debt, Transaction Expenses, Closing Taxes, Closing Transaction Tax Deductions and the Closing Adjustment Amount in accordance with the terms of this Agreement, including the Accounting Principles. Each of Vista Outdoor and Revelyst shall execute the Closing Statement to certify the calculations set forth therein and upon such certification the Closing Statement shall become final and binding upon the Parties; provided, that, notwithstanding anything to the contrary in this Agreement, in the event that Vista Outdoor and Revelyst do not agree upon and execute the Closing Statement by the Closing Statement Deadline, then the Estimated Closing Statement shall be deemed to be the Closing Statement for all purposes under this Agreement and neither Party nor their respective Affiliates shall have any further obligation pursuant to this Section 2.06.
(e) In connection with the preparation of the Closing Statement, Vista Outdoor shall, subject to reasonable advance written request (email being sufficient), provide Revelyst and its Representatives with reasonable access during normal business hours, and in such a manner entirety as to not interfere with the normal operations of Vista Outdoor and each other member of the Vista Outdoor Group, to the Records and relevant advisors (subject to the execution of any required customary access letters), personnel and properties of Vista Outdoor and each other member of the Vista Outdoor Group to the extent reasonably relevant to the preparation of the Closing Statement; provided that Revelyst shall, and shall cause its Representatives to, keep any nonpublic information shared with it confidential.
(f) Within three (3) Business Days after the Closing Statement becomes final and binding upon the Parties in accordance with this Section 2.06, if the Closing Adjustment Amount isfollows:
(i) greater than the Estimated Closing Adjustment Amount, then Vista Outdoor shall pay Revelyst an amount of cash equal to such difference;
(ii) less than the Estimated Closing Adjustment Amount, then Revelyst shall pay Vista Outdoor an amount of cash equal to such difference; or
(iii) equal to the Estimated Closing Adjustment Amount, then neither Party shall have any obligation to make a payment to the other Party in respect thereof.
(g) Each Party acknowledges that the agreements contained in this Section 2.06 are an integral part of the Transactions, and that, without these agreements, the other Party would not have entered into this Agreement and each other Transaction Document to which it is a party. Accordingly, if a Party fails to promptly pay any amount due pursuant to this Section 2.06 (such Party, the “Defaulting Party”), and, in order to obtain payment of such amount, the other Party commences a legal action which results in an order against the Defaulting Party for such amount, or any portion thereof, the Defaulting Party shall pay to the other Party such other Party’s out-of-pocket, reasonable and documented costs and expenses (including attorneys’ fees) incurred in connection with such legal action, together with interest on such due and unpaid amounts pursuant to this Section 2.06 at a rate equal to (i) the prime rate as published in The Wall Street Journal in effect on the date such amount was required to be paid plus (ii) 2% through the date such payment was actually received.
(h) Vista Outdoor agrees that, from the Closing Date through the date that the Closing Adjustment Amount is finally determined in accordance with this Section 2.06, it shall not, and shall cause each other member of the Vista Outdoor Group not to, take any action with respect to any accounting books, records, policies or procedures on which the Closing Statement is based that would impede or delay the final determination of the Closing Adjustment Amount.
(i) Notwithstanding anything to the contrary in this Agreement or any investigation or examination conducted, or any knowledge possessed or acquired, by or on behalf of Vista Outdoor or Revelyst, the process set forth in this Section 2.06 shall be the sole and exclusive remedy between the Parties for any disputes related to the items required to be included or reflected in the calculation of Closing Cash, Closing Working Capital, Closing Debt, Transaction Expenses, Closing Taxes, Closing Transaction Tax Deductions and the Closing Adjustment Amount.
(j) Without the prior written consent of ▇▇▇▇▇▇ ▇▇▇▇▇▇, none of the time periods set forth in this Section 2.06 shall be extended or waived by any Party. For the avoidance of doubt, from and after the closing of the Revelyst Merger, neither Olibre Parent, Revelyst nor any of their respective Subsidiaries shall have any obligation with respect to this Section 2.06. Each Party agrees that Olibre Parent is a third party beneficiary of this Section 2.06(j).
(k) For the purposes of this Agreement:
Appears in 1 contract
Sources: Asset Contribution Agreement (Insight Communications Co Inc)
Closing Adjustments. (a) At least five The following items affecting the Property shall be apportioned, adjusted or otherwise accounted for between Seller and Buyer as of the Closing Date:
(5i) Business Days Subject to paragraph (d) of this Section, rent, additional rent, common area maintenance, payments to merchants' associations or similar business promotion organizations, and all other charges payable by Seller as tenant under the Leases as follows:
(1) any charge payable on a monthly basis which is subject to year end adjustment shall be prorated for the month in which the Closing Date shall occur and any year end adjustment thereof shall be paid by, or the refund from the lessor paid to, Seller and Buyer in proportion to their respective payments thereof (i.e., Seller to make all such payments prior to the Closing Date and Buyer to make all such payments after the Closing Date), and (2) Impositions under the Leases not payable monthly but payable in full after the Closing at the end of a lease year or tax fiscal year, as provided in the respective Leases, shall be prorated as of the Closing Date but Seller will pay Buyer its share thereof within 30 days after Buyer furnishes Seller the billing and substantiation thereof received from each respective lessor;
(ii) Buyer shall pay Seller on the Closing Date for any security deposits held by lessors under the Leases, and the Seller's pett▇ ▇▇▇h at each theatre;
(iii) Reduced admission tickets, group tickets or so-called other "discount tickets" (collectively "Discount Tickets") issued by Seller prior to the Closing Date and presented by customers for admission to the Theatres on or after the Closing Date shall be honored by Buyer but may be redeemed by Buyer from Seller for the amount shown on the Discount Ticket as the cost paid to Seller for such Ticket. Seller shall also reimburse Buyer in the amount of any gift certificates issued by Seller prior to the Closing Date and used at the Theatres subsequent to the Closing Date, when, as and in the amount said gift certificates are redeemed, provided, however, Buyer shall not be obligated to honor any such gift certificate or Discount Ticket after one (1) year immediately following the Closing Date. Buyer shall (and hereby covenants and agrees to) be bound by all free admission passes distributed prior to the Closing Date by Seller or Seller's authorized agents to third parties. Any monies which Seller shall owe Buyer for reimbursement for Discount Tickets that are presented for payment to Seller within a calendar month in the manner required herein shall be paid to Buyer by the 30th day of the next following calendar month.
(b) General real property taxes and other Impositions imposed upon or assessed against the Property (and not otherwise payable by Seller as tenant under the Leases directly to the lessors thereunder or payable by such lessors without any obligation of payment on the part of Seller) shall be remitted to the collecting authorities by Seller if the same are due and payable on or before the Closing Date, and by Buyer if due and payable thereafter; provided, however, such real property taxes and other Impositions imposed upon or assessed against the Property for the current tax fiscal year in which the Closing Date occurs ("Proration Period") shall be apportioned and prorated between Seller and Buyer on and as of the Closing Date with Buyer bearing only the expense of that proportion of such Impositions that the number of days in the Proration Period following and including the Closing Date bears to 365. If the amount of any such taxes, assessments and other Impositions to be borne by the parties hereto, as above provided, is not ascertainable on the Closing Date, Seller shall pay to Buyer its share of the amount of such taxes, assessments or other Impositions within 15 days after receipt by Seller of the appropriate tax bill(▇) evidencing the amount thereof.
(c) Seller shall pay all utility costs in respect of the Leased Premises (except to the extent the lessors are liable therefor under the Leases or such costs are a part of a lease charge to be prorated pursuant to clause (i) of paragraph (a) of this Section) incurred prior to the Closing Date, Vista Outdoor and those incurred thereafter shall prepare and deliver to Parent a statement (be paid by Buyer. If the “Estimated Closing Statement”) setting forth Vista Outdoor’s good faith estimate of (i) Closing Cash (such estimate, “Estimated Closing Cash”), (ii) Closing Working Capital (such estimate, “Estimated Closing Working Capital”), (iii) Closing Debt (such estimate, “Estimated Closing Debt”), (iv) Transaction Expenses (such estimate, “Estimated Transaction Expenses”), (v) Closing Taxes (such estimate, “Estimated Closing Taxes”), (vi) Closing Transaction Tax Deductions (such estimate, “Estimated Closing Transaction Tax Deductions”), (vii) utility charges for the last utility period cannot be ascertained on the Closing Non-Cash Debt Date, then at such subsequent date as all utility bills for such utility period have been obtained, the parties shall promptly pay their respective prorated amounts. Any deposits of Seller held by utility companies shall be returned to Seller, and Buyer shall be responsible for making its own deposits with the utility companies.
(d) With respect to any percentage rent (as defined in the respective leases) payable under the Leases for the applicable lease years thereunder during which the lease assignments occur, the percentage rent (taking into account any applicable credits or adjustments) shall be prorated between the Buyer and Seller such estimate, “Estimated Closing Non-Cash Debt”that each party shall pay when due that percent of the total percentage rent payable which equals such party's respective gross receipts (as defined in the respective leases) divided by the total gross receipts for such lease year.
(e) Seller and (viii) the Estimated Closing Adjustment Amount, in each case, together with reasonably detailed schedules Buyer shall also make such other adjustments or apportionments with respect to the determination thereof Property as may be necessary to support carry out the estimates set forth in intention of the Estimated parties hereto so that Buyer shall not be liable for matters accruing or occurring prior to the Closing Statement. The Estimated Date and that Seller shall not be liable for matters accruing or occurring from and after the Closing Statement Date and that Seller shall bear all of the expenses and burdens, and shall be prepared in accordance with entitled to all of the terms benefits and income, of this Agreement, including and from ownership of the Accounting Principles. The Parties agree that the purpose of preparing the Estimated Closing Statement is Property prior to estimate the amounts of Closing Cash, Closing Working Capital, Closing Debt, Transaction Expenses, Closing Taxes, Closing Transaction Tax Deductions and the Closing Adjustment Amount in accordance with the terms of this Agreement, including the Accounting Principles. Vista Outdoor Date and Buyer shall consider in good faith bear all such expenses and implement burdens and shall be entitled to all reasonable comments provided by Parent to the Estimated Closing Statement (including the components thereof) at least one Business Day prior to such benefits and income from and after the Closing Date.
(bf) At least five (5) Business Days prior to Vista Outdoor’s delivery of the Estimated Closing Statement, The foregoing adjustments shall be determined and in any event at least ten (10) Business Days prior payment made from one party to the other (as the case may be) on the Closing Date, Vista Outdoor shall prepare and deliver to Parent a good faith non-binding, advisory draft of the Estimated Closing Statement (the “Draft Estimated Closing Statement”), including reasonably detailed schedules with respect Date to the determination thereof extent they are known and agreed to support the estimates set forth therein. In furtherance of Vista Outdoor’s preparation of the Estimated Closing Statementby both parties; otherwise, Vista Outdoor such adjustments shall consider in good faith all reasonable comments provided to the Draft Estimated Closing Statement by Parent at least one Business Day prior to delivery of the Estimated Closing Statement.
(c) Within ten (10) Business Days of the date of this Agreement, Vista Outdoor shall prepare and deliver to Parent a good faith non-binding, advisory draft of the Estimated Closing Statement, including reasonably detailed schedules with respect to the determination thereof to support the estimates set forth therein (an “Advisory Estimated Closing Statement”), assuming, for purposes of creating such Advisory Estimated Closing Statement, a Reference Time of 11:59 p.m. New York City time on September 30, 2024. Within ten (10) Business Days following October 31, 2024, Vista Outdoor shall prepare and deliver to Parent, an Advisory Estimated Closing Statement assuming, for purposes of creating such Advisory Estimated Closing Statement, a Reference Time of 11:59 p.m. New York City time on October 31, 2024. In furtherance of Vista Outdoor’s preparation of the Draft Estimated Closing Statement and the Estimated Closing Statement, Vista Outdoor shall consider in good faith all reasonable comments provided to the Advisory Estimated Closing Statements by Parent at least one (1) Business Day prior to delivery of the Draft Estimated Closing Statement.
(d) As promptly be determined as practicable, and in any event within the later of (x) thirty (30) days following soon as possible after the Closing Date and (y) five (5) Business Days prior to the consummation of the Revelyst Merger (adjustments, if such merger is consummated) (the later of (x) and (y)any, the “Closing Statement Deadline”), Vista Outdoor and Revelyst shall cooperate in good faith and jointly prepare a statement (the “Closing Statement”) setting forth their joint good faith calculation of (i) Closing Cash, (ii) Closing Working Capital, (iii) Closing Debt, (iv) Transaction Expenses, (v) Closing Taxes, (vi) Closing Transaction Tax Deductions and (vii) the Closing Adjustment Amount, in each case, together with reasonably detailed schedules with respect to the determination thereof to support the calculations set forth in the Closing Statement. The Closing Statement shall be prepared in accordance with the terms of this Agreement, including the Accounting Principles. The Parties agree that the purpose of preparing the Closing Statement is to measure determined and determine the amount of Closing Cash, Closing Working Capital, Closing Debt, Transaction Expenses, Closing Taxes, Closing Transaction Tax Deductions and the Closing Adjustment Amount in accordance with the terms of this Agreement, including the Accounting Principles. Each of Vista Outdoor and Revelyst shall execute the Closing Statement to certify the calculations set forth therein and upon such certification the Closing Statement shall become final and binding upon the Parties; provided, that, notwithstanding anything to the contrary in this Agreement, in the event that Vista Outdoor and Revelyst do not agree upon and execute the Closing Statement payment made by the Closing Statement Deadline, then party owing the Estimated Closing Statement shall be deemed to be the Closing Statement for all purposes under this Agreement and neither Party nor their respective Affiliates shall have any further obligation pursuant to this Section 2.06.
(e) In connection with the preparation of the Closing Statement, Vista Outdoor shall, subject to reasonable advance written request (email being sufficient), provide Revelyst and its Representatives with reasonable access during normal business hours, and in such a manner as to not interfere with the normal operations of Vista Outdoor and each other member of the Vista Outdoor Group, to the Records and relevant advisors (subject to the execution of any required customary access letters), personnel and properties of Vista Outdoor and each other member of the Vista Outdoor Group to the extent reasonably relevant to the preparation of the Closing Statement; provided that Revelyst shall, and shall cause its Representatives to, keep any nonpublic information shared with it confidential.
(f) Within three (3) Business Days after the Closing Statement becomes final and binding upon the Parties in accordance with this Section 2.06, if the Closing Adjustment Amount is:
(i) greater than the Estimated Closing Adjustment Amount, then Vista Outdoor shall pay Revelyst an amount of cash equal to such difference;
(ii) less than the Estimated Closing Adjustment Amount, then Revelyst shall pay Vista Outdoor an amount of cash equal to such difference; or
(iii) equal to the Estimated Closing Adjustment Amount, then neither Party shall have any obligation to make a payment adjustment to the other Party in respect thereof.
(g) Each Party acknowledges that the agreements contained in this Section 2.06 are an integral part of the Transactions, and that, without these agreements, the other Party would not have entered into this Agreement and each other Transaction Document to which it is a party. Accordingly, if a Party fails to promptly pay any amount due pursuant to this Section 2.06 (such Party, the “Defaulting Party”), and, in order to obtain payment of such amount, the other Party commences a legal action which results in an order against the Defaulting Party for such amount, or any portion thereof, the Defaulting Party shall pay to the other Party such other Party’s out-of-pocket, reasonable and documented costs and expenses (including attorneys’ fees) incurred in connection with such legal action, together with interest on such due and unpaid amounts pursuant to this Section 2.06 at a rate equal to (i) the prime rate as published in The Wall Street Journal in effect on the date such amount was required to be paid plus (ii) 2% through the date such payment was actually received.
(h) Vista Outdoor agrees that, from the Closing Date through the date that the Closing Adjustment Amount is finally determined in accordance with this Section 2.06, it shall not, and shall cause each other member of the Vista Outdoor Group not to, take any action with respect to any accounting books, records, policies or procedures on which the Closing Statement is based that would impede or delay the final determination of the Closing Adjustment Amount.
(i) Notwithstanding anything to the contrary in this Agreement or any investigation or examination conducted, or any knowledge possessed or acquired, by or on behalf of Vista Outdoor or Revelyst, the process set forth in this Section 2.06 shall be the sole and exclusive remedy between the Parties for any disputes related to the items required to be included or reflected in the calculation of Closing Cash, Closing Working Capital, Closing Debt, Transaction Expenses, Closing Taxes, Closing Transaction Tax Deductions and the Closing Adjustment Amount.
(j) Without the prior written consent of ▇▇▇▇▇▇ ▇▇▇▇▇▇, none of the time periods set forth in this Section 2.06 shall be extended or waived by any Party. For the avoidance of doubt, from and within 30 days after the closing of the Revelyst Merger, neither Olibre Parent, Revelyst nor any of their respective Subsidiaries shall have any obligation with respect to this Section 2.06. Each Party agrees that Olibre Parent adjustment is a third party beneficiary of this Section 2.06(j)determined.
(k) For the purposes of this Agreement:
Appears in 1 contract
Closing Adjustments. Within ninety (90) days subsequent to the ------------------- Closing Date, the Company shall deliver to Purchaser (a) At least five a balance sheet of the Internet Division and a supporting schedule of the Excluded Equipment the Excluded Inventory (5the "Audited Excluded Equipment and Inventory") Business Days prepared in ---------------------------------------- reasonable detail and in accordance with generally accepted accounting principles ("GAAP") and audited and certified by an independent certified public ---- accountant (the "Auditor") selected by the Company, but subject to the ------- reasonable satisfaction of Purchaser and (b) a schedule setting forth in reasonable detail the balance on the Closing Date of the Included Receivables, the Included Deposits and Prepaid Expenses, and the Assumed Payables, and the net amount of such accounts (the "Final Receivables/Payables Balance") such ---------------------------------- amount being certified by the Company's chief financial officer as materially accurate as of the Closing Date (collectively, the "Financial Information"). --------------------- If any items of personal property exist that are included only in either (i) the Excluded Equipment or the Excluded Inventory or (ii) the Audited Excluded Equipment and Inventory, and the aggregate net fair market value of such items of personal property (as determined by the Auditor) exceed the sum of Ten Thousand Dollars ($10,000) in favor of either the Company or Purchaser, then the aggregate net fair market value of such items of personal property in favor of Purchaser or the Company shall be referred to herein as the "Equipment and Inventory ----------------------- Difference". ---------- Any difference between the Receivables/Payables Balance and the Final Receivables/Payables Balance shall be referred to herein as the "Receivables/Payables Difference". ------------------------------- If the aggregate of the Equipment and Inventory Difference and the Receivables/Payables Difference exceeds the sum of Fifty Thousand Dollars ($50,000) (the "Payment Amount") in favor of either Purchaser or the Company -------------- (the "Recipient"), then, within ninety (90) days of Purchaser's receipt of the --------- Financial Information, the other party (the "Payor") shall pay the Recipient the ----- Payment Amount either in cash or, in the discretion of the Payor, by transferring of any item of personal property the fair market value of which is included in the Inventory and Equipment Difference to the Recipient. The Payor's transfer of such item of personal property shall be treated as a payment of cash to the Recipient to the extent of the fair market value thereof as determined by the Auditor for purposes of computing the Equipment and Inventory Difference. In lieu of receiving the Payment Amount, the Recipient may elect to offset, to the extent of the Payment Amount, any obligation in whole or in part that it may have to the Payor either under this Agreement or any other agreement (the "Offset Right"). The Recipient may exercise its Offset Right by providing the ------------ Payor written notice of its election thereof prior to the date on which the Recipient receives full payment of the Payment Amount. If, within one hundred eighty (180) days subsequent to the Closing Date, either the Company or Purchaser discover that any asset or liability (other than the categories of assets and liabilities addressed in the procedures set forth above in this Section 2.2) was inadvertently included in or excluded from the Included Assets or Assumed liabilities, then such party shall promptly notify the other party of such discovery and the Company shall promptly request that the Auditor determine from its examination of the records of the Service Division whether such asset or liability in question shall be included or excluded from the Included Assets or the Assumed Liabilities because the Company predominantly accounted for either such item or any income or expense associated with such item produced by such item on the books and records of the Service Division prior to the Closing Date. If the Auditor determines that any of such assets or liabilities were inadvertently included in or excluded from the Included Assets or the Assumed Liabilities, Vista Outdoor shall prepare and deliver to Parent a statement (the “Estimated Closing Statement”) setting forth Vista Outdoor’s good faith estimate of (i) Closing Cash (such estimatethen, “Estimated Closing Cash”), (ii) Closing Working Capital (such estimate, “Estimated Closing Working Capital”), (iii) Closing Debt (such estimate, “Estimated Closing Debt”), (iv) Transaction Expenses (such estimate, “Estimated Transaction Expenses”), (v) Closing Taxes (such estimate, “Estimated Closing Taxes”), (vi) Closing Transaction Tax Deductions (such estimate, “Estimated Closing Transaction Tax Deductions”), (vii) the Closing Non-Cash Debt (such estimate, “Estimated Closing Non-Cash Debt”) and (viii) the Estimated Closing Adjustment Amount, in each case, together with reasonably detailed schedules with respect to the determination thereof to support the estimates set forth in the Estimated Closing Statement. The Estimated Closing Statement shall be prepared in accordance with Section 10.1 hereof, the terms Company and Purchaser shall take all actions necessary to secure the transfer or assumption of this Agreement, including the Accounting Principlesany such asset or liability. The Parties agree that the purpose of preparing the Estimated Closing Statement is to estimate the amounts of Closing Cash, Closing Working Capital, Closing Debt, Transaction Expenses, Closing Taxes, Closing Transaction Tax Deductions and the Closing Adjustment Amount in accordance with the terms of this Agreement, including the Accounting Principles. Vista Outdoor shall consider in good faith and implement all reasonable comments provided by Parent to the Estimated Closing Statement (including the components thereof) at least one Business Day prior to the Closing Date.
(b) At least five (5) Business Days prior to Vista Outdoor’s delivery of the Estimated Closing Statement, and in any event at least ten (10) Business Days prior to the Closing Date, Vista Outdoor shall prepare and deliver to Parent a good faith non-binding, advisory draft of the Estimated Closing Statement (the “Draft Estimated Closing Statement”), including reasonably detailed schedules with respect to the determination thereof to support the estimates set forth therein. In furtherance of Vista Outdoor’s preparation of the Estimated Closing Statement, Vista Outdoor shall consider in good faith all reasonable comments provided to the Draft Estimated Closing Statement by Parent at least one Business Day prior to delivery of the Estimated Closing Statement.
(c) Within ten (10) Business Days of the date of this Agreement, Vista Outdoor shall prepare and deliver to Parent a good faith non-binding, advisory draft of the Estimated Closing Statement, including reasonably detailed schedules with respect to the determination thereof to support the estimates set forth therein (an “Advisory Estimated Closing Statement”), assuming, for purposes of creating such Advisory Estimated Closing Statement, a Reference Time of 11:59 p.m. New York City time on September 30, 2024. Within ten (10) Business Days following October 31, 2024, Vista Outdoor shall prepare and deliver to Parent, an Advisory Estimated Closing Statement assuming, for purposes of creating such Advisory Estimated Closing Statement, a Reference Time of 11:59 p.m. New York City time on October 31, 2024. In furtherance of Vista Outdoor’s preparation of the Draft Estimated Closing Statement and the Estimated Closing Statement, Vista Outdoor shall consider in good faith all reasonable comments provided to the Advisory Estimated Closing Statements by Parent at least one (1) Business Day prior to delivery of the Draft Estimated Closing Statement.
(d) As promptly as practicable, and in any event within the later of (x) thirty (30) days following the Closing Date and (y) five (5) Business Days prior to the consummation of the Revelyst Merger (if such merger is consummated) (the later of (x) and (y), the “Closing Statement Deadline”), Vista Outdoor and Revelyst shall cooperate in good faith and jointly prepare a statement (the “Closing Statement”) setting forth their joint good faith calculation of (i) Closing Cash, (ii) Closing Working Capital, (iii) Closing Debt, (iv) Transaction Expenses, (v) Closing Taxes, (vi) Closing Transaction Tax Deductions and (vii) the Closing Adjustment Amount, in each case, together with reasonably detailed schedules with respect to the determination thereof to support the calculations set forth in the Closing Statement. The Closing Statement shall be prepared in accordance with the terms of this Agreement, including the Accounting Principles. The Parties agree that the purpose of preparing the Closing Statement is to measure and determine the amount of Closing Cash, Closing Working Capital, Closing Debt, Transaction Expenses, Closing Taxes, Closing Transaction Tax Deductions and the Closing Adjustment Amount in accordance with the terms of this Agreement, including the Accounting Principles. Each of Vista Outdoor and Revelyst shall execute the Closing Statement to certify the calculations set forth therein and upon such certification the Closing Statement shall become final and binding upon the Parties; provided, that, notwithstanding anything to the contrary in this Agreement, in the event that Vista Outdoor and Revelyst do not agree upon and execute the Closing Statement by the Closing Statement Deadline, then the Estimated Closing Statement shall be deemed to be the Closing Statement for all purposes under this Agreement and neither Party nor their respective Affiliates shall have any further obligation pursuant to this Section 2.06.
(e) In connection with the preparation of the Closing Statement, Vista Outdoor shall, subject to reasonable advance written request (email being sufficient), provide Revelyst and its Representatives with reasonable access during normal business hours, and in such a manner as to not interfere with the normal operations of Vista Outdoor and each other member of the Vista Outdoor Group, to the Records and relevant advisors (subject to the execution of any required customary access letters), personnel and properties of Vista Outdoor and each other member of the Vista Outdoor Group to the extent reasonably relevant to the preparation of the Closing Statement; provided that Revelyst shall, and shall cause its Representatives to, keep any nonpublic information shared with it confidential.
(f) Within three (3) Business Days after the Closing Statement becomes final and binding upon the Parties in accordance with this Section 2.06, if the Closing Adjustment Amount is:
(i) greater than the Estimated Closing Adjustment Amount, then Vista Outdoor shall pay Revelyst an amount of cash equal to such difference;
(ii) less than the Estimated Closing Adjustment Amount, then Revelyst shall pay Vista Outdoor an amount of cash equal to such difference; or
(iii) equal to the Estimated Closing Adjustment Amount, then neither Party shall have any obligation to make a payment to the other Party in respect thereof.
(g) Each Party acknowledges that the agreements contained in this Section 2.06 are an integral part of the Transactions, and that, without these agreements, the other Party would not have entered into this Agreement and each other Transaction Document to which it is a party. Accordingly, if a Party fails to promptly pay any amount due pursuant to this Section 2.06 (such Party, the “Defaulting Party”), and, in order to obtain payment of such amount, the other Party commences a legal action which results in an order against the Defaulting Party for such amount, or any portion thereof, the Defaulting Party shall pay to the other Party such other Party’s out-of-pocket, reasonable and documented costs and expenses (including attorneys’ fees) incurred in connection with such legal action, together with interest on such due and unpaid amounts pursuant to this Section 2.06 at a rate equal to (i) the prime rate as published in The Wall Street Journal in effect on the date such amount was required to be paid plus (ii) 2% through the date such payment was actually received.
(h) Vista Outdoor agrees that, from the Closing Date through the date that the Closing Adjustment Amount is finally determined in accordance with this Section 2.06, it shall not, and shall cause each other member of the Vista Outdoor Group not to, take any action with respect to any accounting books, records, policies or procedures on which the Closing Statement is based that would impede or delay the final determination of the Closing Adjustment Amount.
(i) Notwithstanding anything to the contrary in this Agreement or any investigation or examination conducted, or any knowledge possessed or acquired, by or on behalf of Vista Outdoor or Revelyst, the process set forth in this Section 2.06 Auditor shall be binding on both the sole Company and exclusive remedy between the Parties for any disputes related Purchaser and shall not be subject to the items required to be included or reflected in the calculation a right of Closing Cash, Closing Working Capital, Closing Debt, Transaction Expenses, Closing Taxes, Closing Transaction Tax Deductions and the Closing Adjustment Amountappeal.
(j) Without the prior written consent of ▇▇▇▇▇▇ ▇▇▇▇▇▇, none of the time periods set forth in this Section 2.06 shall be extended or waived by any Party. For the avoidance of doubt, from and after the closing of the Revelyst Merger, neither Olibre Parent, Revelyst nor any of their respective Subsidiaries shall have any obligation with respect to this Section 2.06. Each Party agrees that Olibre Parent is a third party beneficiary of this Section 2.06(j).
(k) For the purposes of this Agreement:
Appears in 1 contract
Closing Adjustments. (a) At least five (5) Business Days prior to the Closing Date, Vista Outdoor shall prepare and deliver to Parent a statement (the “Estimated Closing Statement”) setting forth Vista Outdoor’s good faith estimate of (i) Closing Cash (such estimate, “Estimated Closing Cash”), (ii) Closing Working Capital (such estimate, “Estimated Closing Working Capital”), (iii) Closing Debt (such estimate, “Estimated Closing Debt”), (iv) Transaction Expenses (such estimate, “Estimated Transaction Expenses”), (v) Closing Taxes (such estimate, “Estimated Closing Taxes”), (vi) Closing Transaction Tax Deductions (such estimate, “Estimated Closing Transaction Tax Deductions”), (vii) the Closing Non-Cash Debt (such estimate, “Estimated Closing Non-Cash Debt”) and (viiivii) the Estimated Closing Adjustment Amount, in each case, together with reasonably detailed schedules with respect to the determination thereof to support the estimates set forth in the Estimated Closing Statement. The Estimated Closing Statement shall be prepared in accordance with the terms of this Agreement, including the Accounting Principles. The Parties agree that the purpose of preparing the Estimated Closing Statement is to estimate the amounts of Closing Cash, Closing Working Capital, Closing Debt, Transaction Expenses, Closing Taxes, Closing Transaction Tax Deductions and the Closing Adjustment Amount in accordance with the terms of this Agreement, including the Accounting Principles. Vista Outdoor shall consider in good faith and implement all reasonable comments provided by Parent to the Estimated Closing Statement (including the components thereof) at least one Business Day prior to the Closing Date.
(b) At least five (5) Business Days prior to Vista Outdoor’s delivery of the Estimated Closing StatementAs promptly as practicable, and in any event at least ten (10) Business Days prior to within 90 days following the Closing Date, Vista Outdoor shall prepare and deliver to Parent a good faith non-binding, advisory draft of the Estimated Closing Statement (the “Draft Estimated Closing Statement”), including reasonably detailed schedules with respect to the determination thereof to support the estimates set forth therein. In furtherance of Vista Outdoor’s preparation of the Estimated Closing Statement, Vista Outdoor shall consider in good faith all reasonable comments provided to the Draft Estimated Closing Statement by Parent at least one Business Day prior to delivery of the Estimated Closing Statement.
(c) Within ten (10) Business Days of the date of this Agreement, Vista Outdoor shall prepare and deliver to Parent a good faith non-binding, advisory draft of the Estimated Closing Statement, including reasonably detailed schedules with respect to the determination thereof to support the estimates set forth therein (an “Advisory Estimated Closing Statement”), assuming, for purposes of creating such Advisory Estimated Closing Statement, a Reference Time of 11:59 p.m. New York City time on September 30, 2024. Within ten (10) Business Days following October 31, 2024, Vista Outdoor shall prepare and deliver to Parent, an Advisory Estimated Closing Statement assuming, for purposes of creating such Advisory Estimated Closing Statement, a Reference Time of 11:59 p.m. New York City time on October 31, 2024. In furtherance of Vista Outdoor’s preparation of the Draft Estimated Closing Statement and the Estimated Closing Statement, Vista Outdoor shall consider in good faith all reasonable comments provided to the Advisory Estimated Closing Statements by Parent at least one (1) Business Day prior to delivery of the Draft Estimated Closing Statement.
(d) As promptly as practicable, and in any event within the later of (x) thirty (30) days following the Closing Date and (y) five (5) Business Days prior to the consummation of the Revelyst Merger (if such merger is consummated) (the later of (x) and (y), the “Closing Statement Deadline”), Vista Outdoor and Revelyst shall cooperate in good faith and jointly prepare a statement (the “Closing Statement”) setting forth their joint Vista Outdoor’s good faith calculation of (i) Closing Cash, (ii) Closing Working Capital, (iii) Closing Debt, (iv) Transaction Expenses, (v) Closing Taxes, (vi) Closing Transaction Tax Deductions and (vii) the Closing Adjustment Amount, in each case, together with reasonably detailed schedules with respect to the determination thereof to support the calculations set forth in the Closing Statement. The Closing Statement shall be prepared in accordance with the terms of this Agreement, including the Accounting Principles. The Parties agree that the purpose of preparing the Closing Statement is to measure and determine the amount of Closing Cash, Closing Working Capital, Closing Debt, Transaction Expenses, Closing Taxes, Closing Transaction Tax Deductions and the Closing Adjustment Amount in accordance with the terms of this Agreement, including the Accounting Principles. Each of Vista Outdoor and Revelyst shall execute the Closing Statement to certify the calculations set forth therein and upon such certification the Closing Statement shall become final and binding upon the Parties; provided, that, notwithstanding anything to the contrary in this Agreement, in the event that Vista Outdoor and Revelyst do not agree upon and execute the Closing Statement by the Closing Statement Deadline, then the Estimated Closing Statement shall be deemed to be the Closing Statement for all purposes under this Agreement and neither Party nor their respective Affiliates shall have any further obligation pursuant to this Section 2.06.
(ec) In connection with Following the preparation delivery of the Closing Statement, Vista Outdoor shall, subject to reasonable advance written request (email being sufficient), provide Revelyst and its Representatives with reasonable access during normal business hours, and in such a manner as to not interfere with the normal operations of Vista Outdoor and each other member of the Vista Outdoor Group, to the Records and relevant advisors (subject to the execution of any required customary access letters), personnel and properties of Vista Outdoor and each other member of the Vista Outdoor Group to the extent reasonably relevant to the preparation Revelyst’s review of the Closing Statement; provided that Revelyst shall, and shall cause its Representatives to, keep any nonpublic information shared with it confidential. The Closing Statement shall become final and binding upon the Parties 45 days after receipt thereof by Revelyst, unless Revelyst gives written notice of its disagreement with such Closing Statement (such notice, a “Notice of Disagreement”) to Vista Outdoor on or prior to such date, together with reasonable supporting materials. The Notice of Disagreement, if any, shall specify in reasonable detail the nature, item and amount of any disagreement so asserted. Any item or amount that Revelyst does not dispute in the Notice of Disagreement within such 45-day period will be final, binding and conclusive for all purposes under this Agreement. If a timely Notice of Disagreement is received by Vista Outdoor, then the Closing Statement (as revised in accordance with this sentence) shall become final and binding upon the parties on the earlier of (i) the date on which Vista Outdoor and Revelyst resolve in writing any differences they have with respect to the matters specified in such Notice of Disagreement and (ii) the date on which all such disputed matters are finally resolved in writing by the Independent Expert pursuant to the procedures set forth in this Section 2.06. During the 30-day period following the delivery of a Notice of Disagreement, Vista Outdoor and Revelyst shall seek in good faith to resolve in writing any differences that they may have with respect to the matters specified in the Notice of Disagreement. At the end of such 30-day period, Vista Outdoor and Revelyst shall, unless agreed by Vista Outdoor and Revelyst in writing otherwise, submit to the Independent Expert for review any and all matters that remain in dispute and were included in the Notice of Disagreement. Vista Outdoor and Revelyst shall instruct the Independent Expert to render its decision as to the disputed items and the effect of its decision on the Closing Statement as promptly as practicable but in no event later than 60 days after the date of such submission. Each of Vista Outdoor and Revelyst shall furnish (subject to the execution of any required customary access letters) to the Independent Expert and to one another, such working papers and other relevant documents and information reasonably relating to the disputed items, and shall provide interviews and answer questions, as the Independent Expert may reasonably request in connection with its determination of such disputed items. In the event Vista Outdoor or Revelyst shall participate in teleconferences or meetings with, or make presentations to, the Independent Expert, both Vista Outdoor and Revelyst shall be entitled to participate in such teleconferences, meetings or presentations. The terms of appointment and engagement of the Independent Expert shall be as agreed upon between Vista Outdoor and Revelyst in writing and such terms shall obligate the Independent Expert to keep any nonpublic information shared with it confidential and not to disclose such information without approval from Vista Outdoor and Revelyst.
(d) In resolving any disputed item, the Independent Expert (i) shall act in the capacity of an expert and not as an arbitrator, (ii) shall limit its review to whether matters specifically set forth in the Notice of Disagreement as a disputed item, other than matters thereafter resolved by mutual written agreement of Vista Outdoor and Revelyst pursuant to Section 2.06(c), were determined in accordance with the terms of this Agreement, (iii) shall not assign a value to any disputed item greater than the greatest value for such item, or less than the smallest value for such item, claimed in the Closing Statement or in the Notice of Disagreement, (iv) shall make its determination based solely on written materials and oral communications made available to the Independent Expert in accordance with Section 2.06(c) (i.e., not on independent review) and (v) shall not consider any proposals related to settlement of any disputed items made by Vista Outdoor or Revelyst. The Independent Expert is not authorized to, and shall not, make any other determination, including (A) any determination with respect to any matter included in the Closing Statement or the Notice of Disagreement that was not submitted for resolution to the Independent Expert, (B) any determination as to the accuracy of any representation or warranty in this Agreement or any other Transaction Document or (C) any determination as to compliance by either Party of any of its respective covenants in this Agreement or any other Transaction Document. Any dispute not within the scope of disputes to be resolved by the Independent Expert pursuant to this Section 2.06 shall be resolved as otherwise provided in this Agreement. Any determination by the Independent Expert, and any work or analyses performed by the Independent Expert, may not be offered as evidence of a breach of this Agreement (other than a breach of this Section 2.06) in any Action between the Parties.
(e) The final determination by the Independent Expert of each matter submitted to it in accordance with Section 2.06(c) shall (i) be in writing, (ii) include the Independent Expert’s calculation of the Closing Adjustment Amount, (iii) include the Independent Expert’s determination of each disputed item submitted to it in accordance with Section 2.06(c), (iv) include a brief summary of the Independent Expert’s reason for its determination of each disputed item and (v) include a determination of the apportionment of the Independent Expert’s fees and expenses as between Vista Outdoor, on the one hand, and Revelyst, on the other hand, in accordance with the provisions of Section 2.06(f).
(f) The resolution of disputed items by the Independent Expert shall be final and binding (other than in the case of fraud or manifest error) and an order may be entered in respect thereof by a court having jurisdiction over the Party against which such determination is to be enforced. The fees and expenses of the Independent Expert pursuant to this Section 2.06(f) shall be allocated between Vista Outdoor, on the one hand, and Revelyst, on the other hand, in inverse proportion as they may prevail on the final amount of the adjustment of the disputed items submitted to the Independent Expert. For example, in the event that Revelyst asserts that the calculation of Closing Cash should have been 10% higher than the amount set forth in the Closing Statement, and the Independent Expert determines that the final amount of Closing Cash is 7% higher than the amount set forth in the Closing Statement, then 70% of the fees and expenses of the Independent Expert shall be paid by Vista Outdoor and 30% of the fees and expenses of the Independent Expert shall be paid by Revelyst.
(g) Within three five (35) Business Days after the Closing Statement becomes final and binding upon the Parties in accordance with this Section 2.06, if the Closing Adjustment Amount is:
(i) greater than the Estimated Closing Adjustment Amount, then Vista Outdoor shall pay Revelyst an amount of cash equal to such difference;
(ii) less than the Estimated Closing Adjustment Amount, then Revelyst shall pay Vista Outdoor an amount of cash equal to such difference; or
(iii) equal to the Estimated Closing Adjustment Amount, then neither Party shall have any obligation to make a payment to the other Party in respect thereof.
(gh) Each Party acknowledges that the agreements contained in this Section 2.06 are an integral part of the Transactions, and that, without these agreements, the other Party would not have entered into this Agreement and each other Transaction Document to which it is a party. Accordingly, if a Party fails to promptly pay any amount due pursuant to this Section 2.06 (such Party, the “Defaulting Party”), and, in order to obtain payment of such amount, the other Party commences a legal action which results in an order against the Defaulting Party for such amount, or any portion thereof, the Defaulting Party shall pay to the other Party such other Party’s out-of-pocket, reasonable and documented costs and expenses (including attorneys’ fees) incurred in connection with such legal action, together with interest on such due and unpaid amounts pursuant to this Section 2.06 at a rate equal to (i) the prime rate as published in The Wall Street Journal in effect on the date such amount was required to be paid plus (ii) 2% through the date such payment was actually received.
(hi) Vista Outdoor agrees that, from the Closing Date through the date that the Closing Adjustment Amount is finally determined in accordance with this Section 2.06, it shall not, and shall cause each other member of the Vista Outdoor Group not to, take any action with respect to any accounting books, records, policies or procedures on which the Closing Statement is based that would impede or delay the final determination of the Closing Adjustment Amount.
(ij) Notwithstanding anything to the contrary in this Agreement or any investigation or examination conducted, or any knowledge possessed or acquired, by or on behalf of Vista Outdoor or Revelyst, the process set forth in this Section 2.06 shall be the sole and exclusive remedy between the Parties for any disputes related to the items required to be included or reflected in the calculation of Closing Cash, Closing Working Capital, Closing Debt, Transaction Expenses, Closing Taxes, Closing Transaction Tax Deductions and the Closing Adjustment Amount.
(j) Without the prior written consent of ▇▇▇▇▇▇ ▇▇▇▇▇▇, none of the time periods set forth in this Section 2.06 shall be extended or waived by any Party. For the avoidance of doubt, from and after the closing of the Revelyst Merger, neither Olibre Parent, Revelyst nor any of their respective Subsidiaries shall have any obligation with respect to this Section 2.06. Each Party agrees that Olibre Parent is a third party beneficiary of this Section 2.06(j).
(k) For the purposes of this Agreement:
Appears in 1 contract
Closing Adjustments. Pursuant to Section 1.5 of the Purchase Agreement and subject to all the provisions thereof,
(a) At least five If the Adjusted Average Price is less than the Average Price (5) Business Days prior and after giving effect to the Closing Date, Vista Outdoor shall prepare and deliver to Parent a statement (the “Estimated Closing Statement”) setting forth Vista Outdoor’s good faith estimate of (i) Closing Cash (such estimate, “Estimated Closing Cash”), (ii) Closing Working Capital (such estimate, “Estimated Closing Working Capital”), (iii) Closing Debt (such estimate, “Estimated Closing Debt”), (iv) Transaction Expenses (such estimate, “Estimated Transaction Expenses”), (v) Closing Taxes (such estimate, “Estimated Closing Taxes”), (vi) Closing Transaction Tax Deductions (such estimate, “Estimated Closing Transaction Tax Deductions”), (vii) the Closing Non-Cash Debt (such estimate, “Estimated Closing Non-Cash Debt”) and (viii) the Estimated Closing Adjustment Amount, in each case, together with reasonably detailed schedules with respect to the determination thereof to support the estimates set forth in the Estimated Closing Statement. The Estimated Closing Statement shall be prepared in accordance with the terms of this Section 1.5(c)(3) of the Purchase Agreement), including Buyer shall issue to each Participating Seller, within 30 days of the Accounting Principlesend of the Adjustment Period, the number of shares of CyberGuard Common Stock equal to the difference between (1) the product of (A) the number of shares of Closing Delivered Shares owned by such Participating Seller at the end of the Adjustment Period multiplied by (B) the quotient of the Average Price divided by the Adjusted Average Price, and (2) the number of Closing Delivered Shares owned by such Participating Seller at the end of the Adjustment Period. The Parties parties hereto agree that that, pursuant to this subsection, the purpose Buyer shall issue the number of preparing shares of Cyberguard Common Stock as set forth on Exhibit A to each of the Estimated Closing Statement is to estimate the amounts of Closing Cash, Closing Working Capital, Closing Debt, Transaction Expenses, Closing Taxes, Closing Transaction Tax Deductions and the Closing Adjustment Amount in accordance with the terms of this Agreement, including the Accounting Principles. Vista Outdoor shall consider in good faith and implement all reasonable comments provided by Parent to the Estimated Closing Statement (including the components thereof) at least one Business Day prior to the Closing DateParticipating Sellers as set forth thereon.
(b) At least five (5) Business Days prior If the Adjusted Average Price is greater than the Average Price, Buyer shall deduct from the Escrow Shares otherwise allocated to Vista Outdoor’s delivery each Participating Seller and cause such shares to be cancelled or returned to the treasury of Buyer, within 30 days of the Estimated Closing Statementend of the Adjustment Period, and in any event at least ten (10) Business Days prior the number of Escrow Shares equal to the Closing Date, Vista Outdoor shall prepare and deliver to Parent a good faith non-binding, advisory draft of the Estimated Closing Statement (the “Draft Estimated Closing Statement”), including reasonably detailed schedules with respect to the determination thereof to support the estimates set forth therein. In furtherance of Vista Outdoor’s preparation of the Estimated Closing Statement, Vista Outdoor shall consider in good faith all reasonable comments provided to the Draft Estimated Closing Statement by Parent at least one Business Day prior to delivery of the Estimated Closing Statement.
(c) Within ten (10) Business Days of the date of this Agreement, Vista Outdoor shall prepare and deliver to Parent a good faith non-binding, advisory draft of the Estimated Closing Statement, including reasonably detailed schedules with respect to the determination thereof to support the estimates set forth therein (an “Advisory Estimated Closing Statement”), assuming, for purposes of creating such Advisory Estimated Closing Statement, a Reference Time of 11:59 p.m. New York City time on September 30, 2024. Within ten (10) Business Days following October 31, 2024, Vista Outdoor shall prepare and deliver to Parent, an Advisory Estimated Closing Statement assuming, for purposes of creating such Advisory Estimated Closing Statement, a Reference Time of 11:59 p.m. New York City time on October 31, 2024. In furtherance of Vista Outdoor’s preparation of the Draft Estimated Closing Statement and the Estimated Closing Statement, Vista Outdoor shall consider in good faith all reasonable comments provided to the Advisory Estimated Closing Statements by Parent at least one difference between (1) Business Day prior to delivery the product of (A) the number of Closing Delivered Shares owned by such Participating Seller at the end of the Draft Estimated Closing Statement.
Adjustment Period multiplied by (dB) As promptly as practicablethe quotient of the Adjusted Average Price divided by the Average Price, and in any event within (2) the later number of (x) thirty (30) days following Closing Delivered Shares owned by such Participating Seller at the Closing Date and (y) five (5) Business Days prior to the consummation end of the Revelyst Merger (if such merger is consummated) (the later of (x) and (y), the “Closing Statement Deadline”), Vista Outdoor and Revelyst shall cooperate in good faith and jointly prepare a statement (the “Closing Statement”) setting forth their joint good faith calculation of (i) Closing Cash, (ii) Closing Working Capital, (iii) Closing Debt, (iv) Transaction Expenses, (v) Closing Taxes, (vi) Closing Transaction Tax Deductions and (vii) the Closing Adjustment Amount, in each case, together with reasonably detailed schedules with respect to the determination thereof to support the calculations set forth in the Closing StatementPeriod. The Closing Statement shall be prepared in accordance with the terms of this Agreement, including the Accounting Principles. The Parties parties hereto agree that the purpose Buyer shall deduct from the Escrow Shares allocated to each of preparing the Closing Statement is to measure and determine Participating Sellers the amount number of Closing Cash, Closing Working Capital, Closing Debt, Transaction Expenses, Closing Taxes, Closing Transaction Tax Deductions and the Closing Adjustment Amount in accordance with the terms of this Agreement, including the Accounting Principles. Each of Vista Outdoor and Revelyst shall execute the Closing Statement to certify the calculations Escrow Shares as set forth therein and upon such certification the Closing Statement shall become final and binding upon the Parties; provided, that, notwithstanding anything to the contrary in this Agreement, in the event that Vista Outdoor and Revelyst do not agree upon and execute the Closing Statement by the Closing Statement Deadline, then the Estimated Closing Statement shall be deemed to be the Closing Statement for all purposes under this Agreement and neither Party nor their respective Affiliates shall have any further obligation pursuant to this Section 2.06on Exhibit B hereto.
(e) In connection with the preparation of the Closing Statement, Vista Outdoor shall, subject to reasonable advance written request (email being sufficient), provide Revelyst and its Representatives with reasonable access during normal business hours, and in such a manner as to not interfere with the normal operations of Vista Outdoor and each other member of the Vista Outdoor Group, to the Records and relevant advisors (subject to the execution of any required customary access letters), personnel and properties of Vista Outdoor and each other member of the Vista Outdoor Group to the extent reasonably relevant to the preparation of the Closing Statement; provided that Revelyst shall, and shall cause its Representatives to, keep any nonpublic information shared with it confidential.
(f) Within three (3) Business Days after the Closing Statement becomes final and binding upon the Parties in accordance with this Section 2.06, if the Closing Adjustment Amount is:
(i) greater than the Estimated Closing Adjustment Amount, then Vista Outdoor shall pay Revelyst an amount of cash equal to such difference;
(ii) less than the Estimated Closing Adjustment Amount, then Revelyst shall pay Vista Outdoor an amount of cash equal to such difference; or
(iii) equal to the Estimated Closing Adjustment Amount, then neither Party shall have any obligation to make a payment to the other Party in respect thereof.
(g) Each Party acknowledges that the agreements contained in this Section 2.06 are an integral part of the Transactions, and that, without these agreements, the other Party would not have entered into this Agreement and each other Transaction Document to which it is a party. Accordingly, if a Party fails to promptly pay any amount due pursuant to this Section 2.06 (such Party, the “Defaulting Party”), and, in order to obtain payment of such amount, the other Party commences a legal action which results in an order against the Defaulting Party for such amount, or any portion thereof, the Defaulting Party shall pay to the other Party such other Party’s out-of-pocket, reasonable and documented costs and expenses (including attorneys’ fees) incurred in connection with such legal action, together with interest on such due and unpaid amounts pursuant to this Section 2.06 at a rate equal to (i) the prime rate as published in The Wall Street Journal in effect on the date such amount was required to be paid plus (ii) 2% through the date such payment was actually received.
(h) Vista Outdoor agrees that, from the Closing Date through the date that the Closing Adjustment Amount is finally determined in accordance with this Section 2.06, it shall not, and shall cause each other member of the Vista Outdoor Group not to, take any action with respect to any accounting books, records, policies or procedures on which the Closing Statement is based that would impede or delay the final determination of the Closing Adjustment Amount.
(i) Notwithstanding anything to the contrary in this Agreement or any investigation or examination conducted, or any knowledge possessed or acquired, by or on behalf of Vista Outdoor or Revelyst, the process set forth in this Section 2.06 shall be the sole and exclusive remedy between the Parties for any disputes related to the items required to be included or reflected in the calculation of Closing Cash, Closing Working Capital, Closing Debt, Transaction Expenses, Closing Taxes, Closing Transaction Tax Deductions and the Closing Adjustment Amount.
(j) Without the prior written consent of ▇▇▇▇▇▇ ▇▇▇▇▇▇, none of the time periods set forth in this Section 2.06 shall be extended or waived by any Party. For the avoidance of doubt, from and after the closing of the Revelyst Merger, neither Olibre Parent, Revelyst nor any of their respective Subsidiaries shall have any obligation with respect to this Section 2.06. Each Party agrees that Olibre Parent is a third party beneficiary of this Section 2.06(j).
(k) For the purposes of this Agreement:
Appears in 1 contract
Sources: Stock Purchase and Sale Agreement (Cyberguard Corp)
Closing Adjustments. (a) At least five (5) Business Days If the Management Agreement is entered into on or prior to May 15, 1997, the Closing Date, Vista Outdoor shall prepare Sellers and deliver Purchasers will account to Parent a statement (the “Estimated Closing Statement”) setting forth Vista Outdoor’s good faith estimate of (i) Closing Cash (such estimate, “Estimated Closing Cash”), (ii) Closing Working Capital (such estimate, “Estimated Closing Working Capital”), (iii) Closing Debt (such estimate, “Estimated Closing Debt”), (iv) Transaction Expenses (such estimate, “Estimated Transaction Expenses”), (v) Closing Taxes (such estimate, “Estimated Closing Taxes”), (vi) Closing Transaction Tax Deductions (such estimate, “Estimated Closing Transaction Tax Deductions”), (vii) the Closing Non-Cash Debt (such estimate, “Estimated Closing Non-Cash Debt”) and (viii) the Estimated Closing Adjustment Amount, in each case, together with reasonably detailed schedules other with respect to the determination thereof expenses of the Business generated in the ordinary course on a historical basis which accrued and the revenues of the Business which were generated on and after May 1, 1997 through the Closing Date. To the extent Sellers paid any expenses related to support the estimates Business on or after May 1, 1997 from funds which were not generated by the Business through the rendering of services on or after May 1, 1997 (such expenses being "Sellers' Expense"), Purchasers shall pay in cash to Sellers at Closing a dollar amount equal to the Sellers' Expense. If the Closing occurs after May 15, 1997, the accounting referred to in this Section 5.6(a) shall not be applicable.
(b) If the Management Agreement is entered into after May 15, 1997, then all references in this Agreement to the allocation of accounts receivable, accounts payable, accrued interest, unpaid vacation and accrued expenses to the Sellers for the period prior to May 1, 1997 and to the Purchasers from and after May 1, 1997 shall be deemed to be of no force and effect and the Sellers and Purchasers hereby agree that the new date for allocating all accounts receivable, accounts payable, accrued interest, unpaid vacation and accrued expenses to the Sellers and Purchasers shall be the date on which the Company and EESI NY enter into the Management Agreement, it being understood that if the Management Agreement is entered into after May 15, 1997, the Sellers shall be responsible for all accounts payable, accrued interest, accrued unpaid vacation and salary, and accrued unpaid expenses prior to the Management Date and shall be entitled to receive collections from all accounts receivable generated by the Business prior to the Management Date, in addition to all cash on hand in the Company on the Management Date. If the Management Agreement is executed after May 15, 1997, the Purchasers and Sellers shall re-execute the Assignment and Assumption Agreement, Bills of Sale, and such other documents as are necessary to give effect to the allocation described in the preceding two sentences."
(c) If the Management Agreement is executed on or prior to May 15, 1997, then the amount of EESI Stock to be delivered to the Sellers pursuant to Section 1.4(b)(i) shall be calculated based upon the Company Debt set forth in Schedule 1.4 as of May 1, 1997 and the Estimated Closing Statement. The Estimated Closing Statement amount of EESI Stock to be delivered to the Sellers pursuant to Section 1.4(b)(ii) shall be prepared calculated based upon a per share value of $13.50. If the Management Agreement is executed after May 15, 1997, then the amount of EESI Stock to be delivered to the Sellers pursuant to Section 1.4(b)(i) shall be calculated based upon the Company Debt set forth in accordance with Schedule 1.4 as of the terms of this AgreementClosing Date (provided, including however, the Accounting Principles. The Parties agree that the purpose of preparing the Estimated Closing Statement is ▇▇▇▇▇▇ Debt shall be as set forth in Schedule 1.4 as delivered to estimate the amounts of Closing CashPurchasers on May 12, Closing Working Capital, Closing Debt, Transaction Expenses, Closing Taxes, Closing Transaction Tax Deductions 1997) and the Closing Adjustment Amount in accordance with the terms amount of this Agreement, including the Accounting Principles. Vista Outdoor shall consider in good faith and implement all reasonable comments provided by Parent EESI Stock to be delivered to the Estimated Closing Statement (including Sellers pursuant to Section 1.4(b)(ii) shall be calculated based upon a per share value based upon the components thereof) at least one Business Day closing price for EESI's Common Stock on the NASDAQ National Market for the trading day which is five trading days prior to the Closing Date.
(b) At least five (5) Business Days prior to Vista Outdoor’s delivery of the Estimated Closing Statement, and in any event at least ten (10) Business Days prior to the Closing Date, Vista Outdoor shall prepare and deliver to Parent a good faith non-binding, advisory draft of the Estimated Closing Statement (the “Draft Estimated Closing Statement”), including reasonably detailed schedules with respect to the determination thereof to support the estimates set forth therein. In furtherance of Vista Outdoor’s preparation of the Estimated Closing Statement, Vista Outdoor shall consider in good faith all reasonable comments provided to the Draft Estimated Closing Statement by Parent at least one Business Day prior to delivery of the Estimated Closing Statement.
(c) Within ten (10) Business Days of the date of this Agreement, Vista Outdoor shall prepare and deliver to Parent a good faith non-binding, advisory draft of the Estimated Closing Statement, including reasonably detailed schedules with respect to the determination thereof to support the estimates set forth therein (an “Advisory Estimated Closing Statement”), assuming, for purposes of creating such Advisory Estimated Closing Statement, a Reference Time of 11:59 p.m. New York City time on September 30, 2024. Within ten (10) Business Days following October 31, 2024, Vista Outdoor shall prepare and deliver to Parent, an Advisory Estimated Closing Statement assuming, for purposes of creating such Advisory Estimated Closing Statement, a Reference Time of 11:59 p.m. New York City time on October 31, 2024. In furtherance of Vista Outdoor’s preparation of the Draft Estimated Closing Statement and the Estimated Closing Statement, Vista Outdoor shall consider in good faith all reasonable comments provided to the Advisory Estimated Closing Statements by Parent at least one (1) Business Day prior to delivery of the Draft Estimated Closing Statement.
(d) As promptly as practicable, and in any event within the later of (x) thirty (30) days following the Closing Date and (y) five (5) Business Days prior to the consummation of the Revelyst Merger (if such merger is consummated) (the later of (x) and (y), the “Closing Statement Deadline”), Vista Outdoor and Revelyst shall cooperate in good faith and jointly prepare a statement (the “Closing Statement”) setting forth their joint good faith calculation of (i) Closing Cash, (ii) Closing Working Capital, (iii) Closing Debt, (iv) Transaction Expenses, (v) Closing Taxes, (vi) Closing Transaction Tax Deductions and (vii) the Closing Adjustment Amount, in each case, together with reasonably detailed schedules with respect to the determination thereof to support the calculations set forth in the Closing Statement. The Closing Statement shall be prepared in accordance with the terms of this Agreement, including the Accounting Principles. The Parties agree that the purpose of preparing the Closing Statement is to measure and determine the amount of Closing Cash, Closing Working Capital, Closing Debt, Transaction Expenses, Closing Taxes, Closing Transaction Tax Deductions and the Closing Adjustment Amount in accordance with the terms of this Agreement, including the Accounting Principles. Each of Vista Outdoor and Revelyst shall execute the Closing Statement to certify the calculations set forth therein and upon such certification the Closing Statement shall become final and binding upon the Parties; provided, that, notwithstanding anything to the contrary in this Agreement, in the event that Vista Outdoor and Revelyst do not agree upon and execute the Closing Statement by the Closing Statement Deadline, then the Estimated Closing Statement shall be deemed to be the Closing Statement for all purposes under this Agreement and neither Party nor their respective Affiliates shall have any further obligation pursuant to this Section 2.06.
(e) In connection with the preparation of the Closing Statement, Vista Outdoor shall, subject to reasonable advance written request (email being sufficient), provide Revelyst and its Representatives with reasonable access during normal business hours, and in such a manner as to not interfere with the normal operations of Vista Outdoor and each other member of the Vista Outdoor Group, to the Records and relevant advisors (subject to the execution of any required customary access letters), personnel and properties of Vista Outdoor and each other member of the Vista Outdoor Group to the extent reasonably relevant to the preparation of the Closing Statement; provided that Revelyst shall, and shall cause its Representatives to, keep any nonpublic information shared with it confidential.
(f) Within three (3) Business Days after the Closing Statement becomes final and binding upon the Parties in accordance with this Section 2.06, if the Closing Adjustment Amount is:
(i) greater than the Estimated Closing Adjustment Amount, then Vista Outdoor shall pay Revelyst an amount of cash equal to such difference;
(ii) less than the Estimated Closing Adjustment Amount, then Revelyst shall pay Vista Outdoor an amount of cash equal to such difference; or
(iii) equal to the Estimated Closing Adjustment Amount, then neither Party shall have any obligation to make a payment to the other Party in respect thereof.
(g) Each Party acknowledges that the agreements contained in this Section 2.06 are an integral part of the Transactions, and that, without these agreements, the other Party would not have entered into this Agreement and each other Transaction Document to which it is a party. Accordingly, if a Party fails to promptly pay any amount due pursuant to this Section 2.06 (such Party, the “Defaulting Party”), and, in order to obtain payment of such amount, the other Party commences a legal action which results in an order against the Defaulting Party for such amount, or any portion thereof, the Defaulting Party shall pay to the other Party such other Party’s out-of-pocket, reasonable and documented costs and expenses (including attorneys’ fees) incurred in connection with such legal action, together with interest on such due and unpaid amounts pursuant to this Section 2.06 at a rate equal to (i) the prime rate as published in The Wall Street Journal in effect on the date such amount was required to be paid plus (ii) 2% through the date such payment was actually received.
(h) Vista Outdoor agrees that, from the Closing Date through the date that the Closing Adjustment Amount is finally determined in accordance with this Section 2.06, it shall not, and shall cause each other member of the Vista Outdoor Group not to, take any action with respect to any accounting books, records, policies or procedures on which the Closing Statement is based that would impede or delay the final determination of the Closing Adjustment Amount.
(i) Notwithstanding anything to the contrary in this Agreement or any investigation or examination conducted, or any knowledge possessed or acquired, by or on behalf of Vista Outdoor or Revelyst, the process set forth in this Section 2.06 shall be the sole and exclusive remedy between the Parties for any disputes related to the items required to be included or reflected in the calculation of Closing Cash, Closing Working Capital, Closing Debt, Transaction Expenses, Closing Taxes, Closing Transaction Tax Deductions and the Closing Adjustment Amount.
(j) Without the prior written consent of ▇▇▇▇▇▇ ▇▇▇▇▇▇, none of the time periods set forth in this Section 2.06 shall be extended or waived by any Party. For the avoidance of doubt, from and after the closing of the Revelyst Merger, neither Olibre Parent, Revelyst nor any of their respective Subsidiaries shall have any obligation with respect to this Section 2.06. Each Party agrees that Olibre Parent is a third party beneficiary of this Section 2.06(j).
(k) For the purposes of this Agreement:"
Appears in 1 contract
Sources: Agreement and Plan of Reorganization (Eastern Environmental Services Inc)
Closing Adjustments. The adjustments provided for below in this Section 3.2 shall be made as of Closing with respect to each of TCI and Insight (the net amount of such adjustments being referred to herein as the "TCI Closing Adjustment" as made with respect to TCI and as the "Insight Closing Adjustment" as made with respect to Insight and as the "Closing Adjustments" as made with respect to either or both TCI and Insight), with TCI paying the Company or the Company paying TCI, as the case may be, and with Insight paying the Company or the Company paying Insight, as the case may be. Subject to Section 3.2(i), the Insight Closing Adjustment shall be made in respect of both the Insight Systems and the Exchange Systems. If the estimated TCI Closing Adjustment or Insight Closing Adjustment is to be paid to the Company, such payment may be made in whole or in part by reducing the TCI Permitted Debt or the Insight Permitted Debt, as applicable. If the estimated TCI Closing Adjustment or Insight Closing Adjustment is to be paid by the Company, such payment may be made in whole or in part by increasing the TCI Permitted Debt or the Insight Permitted Debt, as applicable.
(a) At least five (5) Business Days prior to months after the Closing Date, Vista Outdoor shall prepare and deliver to Parent a statement (the “Estimated Closing Statement”) setting forth Vista Outdoor’s good faith estimate of (i) Closing Cash (such estimate, “Estimated Closing Cash”), accrued expenses (ii) Closing Working Capital (such estimate, “Estimated Closing Working Capital”including real and personal property taxes), copyright fees and franchise or license fees or charges, prepaid income, subscriber prepayments and, subject to paragraph (iiie) Closing Debt below, accounts receivable related to such party's Cable Business (such estimate, “Estimated Closing Debt”and in the case of Insight those related to the Exchange Systems) to the extent specified in Section 3.2(e), (iv) Transaction Expenses (such estimate, “Estimated Transaction Expenses”), (v) Closing Taxes (such estimate, “Estimated Closing Taxes”), (vi) Closing Transaction Tax Deductions (such estimate, “Estimated Closing Transaction Tax Deductions”), (vii) the Closing Non-Cash Debt (such estimate, “Estimated Closing Non-Cash Debt”) and (viii) the Estimated Closing Adjustment Amount, in each case, together with reasonably detailed schedules with respect to the determination thereof to support the estimates set forth in the Estimated Closing Statement. The Estimated Closing Statement shall be prepared all as determined in accordance with GAAP consistently applied and to reflect the terms principle that all expenses and income attributable to such party's Cable Business (and in the case of this Agreement, Insight attributable to the Exchange Systems) for the period through and including the Accounting Principles. The Parties agree that Closing Time are for the purpose account of preparing such party, and all expenses and income attributable to such party's Cable Business (and in the Estimated Closing Statement is case of Insight attributable to estimate the amounts of Closing Cash, Closing Working Capital, Closing Debt, Transaction Expenses, Closing Taxes, Closing Transaction Tax Deductions and Exchange Systems) for the period after the Closing Adjustment Amount in accordance with Time are for the terms account of this Agreement, including the Accounting Principles. Vista Outdoor shall consider in good faith and implement all reasonable comments provided by Parent to the Estimated Closing Statement (including the components thereof) at least one Business Day prior to the Closing DateCompany.
(b) At least five (5) Business Days prior to Vista Outdoor’s delivery All advance payments to, or funds of third parties on deposit with, TCI or Insight as of the Estimated Closing Statement, Time and relating to such party's Cable Business (or in any event at least ten (10) Business Days prior the case of Insight relating to the Closing Date, Vista Outdoor shall prepare and deliver to Parent a good faith non-binding, advisory draft of the Estimated Closing Statement (the “Draft Estimated Closing Statement”Exchange Systems), including reasonably detailed schedules with respect advance payments and deposits (including any accrued interest on such deposits) by subscribers served by such party's Cable Business (or in the case of Insight by the Exchange Systems) for converters, encoders, decoders, cable television service and related sales, shall be assumed by, and credited to the determination thereof to support account of, the estimates set forth therein. In furtherance of Vista Outdoor’s preparation of the Estimated Closing Statement, Vista Outdoor shall consider in good faith all reasonable comments provided to the Draft Estimated Closing Statement by Parent at least one Business Day prior to delivery of the Estimated Closing StatementCompany.
(c) Within ten (10) Business Days of the date of this Agreement, Vista Outdoor There shall prepare and deliver to Parent a good faith non-binding, advisory draft of the Estimated Closing Statement, including reasonably detailed schedules with respect be credited to the determination thereof Company the economic value of all accrued vacation time that the Company credits after the Closing Time to support the estimates set forth therein (an “Advisory Estimated Closing Statement”employees of Insight and TCI that are hired by the Company pursuant to Section 7.3(g), assuming, for purposes of creating such Advisory Estimated Closing Statement, a Reference Time of 11:59 p.m. New York City time on September 30, 2024. Within ten (10) Business Days following October 31, 2024, Vista Outdoor shall prepare and deliver to Parent, an Advisory Estimated Closing Statement assuming, for purposes of creating such Advisory Estimated Closing Statement, a Reference Time of 11:59 p.m. New York City time on October 31, 2024. In furtherance of Vista Outdoor’s preparation of where economic value is the Draft Estimated Closing Statement and the Estimated Closing Statement, Vista Outdoor shall consider in good faith all reasonable comments provided amount equal to the Advisory Estimated cash compensation that would be payable to each such employee at his or her level of compensation on the Closing Statements by Parent at least one (1) Business Day prior Date for a period equal to delivery of the Draft Estimated Closing Statementsuch employee's credited accrued vacation.
(d) As promptly as practicable, All deposits relating to the business and operations of each party's Systems (and in the case of Insight those relating to the Exchange Systems) that are held by third parties as of the Closing Time for the account of such party or as security for such party's performance of its obligations, including deposits on leases and deposits for utilities, will be credited to the account of such party in their full amounts and will become the property of the Company; provided that no adjustment will be made for any event deposits the full benefit of which for contractual or other reasons cannot be made available to the Company within the later of (x) thirty (30) days 12 months following the Closing Date and (y) five (5) Business Days prior to the consummation of the Revelyst Merger (if such merger is consummated) (the later of (x) and (y), the “Closing Statement Deadline”), Vista Outdoor and Revelyst shall cooperate in good faith and jointly prepare a statement (the “Closing Statement”) setting forth their joint good faith calculation of (i) Closing Cash, (ii) Closing Working Capital, (iii) Closing Debt, (iv) Transaction Expenses, (v) Closing Taxes, (vi) Closing Transaction Tax Deductions and (vii) the Closing Adjustment Amount, in each case, together with reasonably detailed schedules with respect to the determination thereof to support the calculations set forth in the Closing Statement. The Closing Statement shall be prepared in accordance with the terms of this Agreement, including the Accounting Principles. The Parties agree that the purpose of preparing the Closing Statement is to measure and determine the amount of Closing Cash, Closing Working Capital, Closing Debt, Transaction Expenses, Closing Taxes, Closing Transaction Tax Deductions and the Closing Adjustment Amount in accordance with the terms of this Agreement, including the Accounting Principles. Each of Vista Outdoor and Revelyst shall execute the Closing Statement to certify the calculations set forth therein and upon such certification the Closing Statement shall become final and binding upon the Parties; provided, that, notwithstanding anything to the contrary in this Agreement, in the event that Vista Outdoor and Revelyst do not agree upon and execute the Closing Statement by the Closing Statement Deadline, then the Estimated Closing Statement shall be deemed to be the Closing Statement for all purposes under this Agreement and neither Party nor their respective Affiliates shall have any further obligation pursuant to this Section 2.06Time.
(e) In connection with the preparation Neither TCI nor Insight will receive credit for any of its (i) accounts receivable resulting from cable television service sales any portion of which is 60 days or more past due as of the Closing StatementDate, Vista Outdoor shall, subject to reasonable advance written request or (email being sufficient), provide Revelyst and its Representatives with reasonable access during normal business hours, and in such a manner ii) accounts receivable from customers whose accounts are inactive or whose service is pending disconnection for any reason as to not interfere with the normal operations of Vista Outdoor and each other member of the Vista Outdoor Group, to the Records and relevant advisors (subject to the execution of any required customary access letters), personnel and properties of Vista Outdoor and each other member of the Vista Outdoor Group to the extent reasonably relevant to the preparation of the Closing Statement; provided that Revelyst shallDate. TCI and Insight will receive credit for their accounts receivable resulting from cable television service sales the entire portion of which are 0-59 days past due as of the Closing Date in an amount equal to 99% of the face amount of such accounts receivable. For purposes of making "past due" calculations under the foregoing sentence, the billing statements of a System (including an Exchange System) will be deemed to be due and payable on the first day of the period during which the service to which such billing statements relate is provided. TCI and Insight will receive credit for their advertising accounts receivable as follows: (i) 100% of the face amount of the advertising accounts receivable which are outstanding 30 days or less from the invoice date, (ii) 95% of the face amount of all advertising accounts receivable which are outstanding more than 30 but fewer than 61 days from the invoice date, (iii) 80% of the face amount of all advertising accounts receivable which are outstanding more than 60 but fewer than 91 days from the invoice date, and (iv) 50% of the face amount of all advertising accounts receivable which are outstanding more than 90 but fewer than 121 days from the invoice date. Neither TCI nor Insight will receive credit for advertising accounts receivable which are outstanding more than 120 days from the invoice date. Notwithstanding the foregoing, each of TCI and Insight will receive credit for 100% of the face amount of their advertising accounts receivable from national and regional representation accounts, regardless of the age thereof. The obligations of TeleCable Corporation under the Agreement dated as of December 8, 1992 between it and Insight with respect to the period prior to Closing are not affected by this Agreement. For purposes of this Section 3.2(e), Insight's accounts receivable shall cause its Representatives to, keep any nonpublic information shared with include accounts receivable related to the Exchange Systems for which it confidentialgave TCI credit under the Exchange Agreement.
(f) Within three (3) Business Days after Each of TCI and Insight shall receive a credit equal to the aggregate amount of all capital expenditures made by such party during the period from January 1, 1998 through the Closing Statement becomes final and binding upon the Parties in accordance with this Section 2.06, if the Closing Adjustment Amount is:
Date relating to (i) greater than the Estimated Closing Adjustment Amountupgrades and rebuilds of System plant capacity and associated items (including headend sites and headend equipment to expand channel capacity), then Vista Outdoor shall pay Revelyst an amount of cash equal to such difference;
and (ii) less than the Estimated Closing Adjustment Amountlaunch of digital services, then Revelyst including the purchase of digital converters but not including digital converters purchased in the ordinary course of business to replace lost, stolen or defective digital converters. For purposes of this Section 3.2(f), Insight shall pay Vista Outdoor an amount receive credit for any credit it gave to TCI pursuant to Section 3.2(f) of cash equal to such difference; or
(iii) equal to the Estimated Closing Adjustment Amount, then neither Party shall have any obligation to make a payment to the other Party in respect thereofExchange Agreement.
(g) Each Party acknowledges Any amounts paid, or accrued as a current liability, prior to Closing by TCI or its Affiliates with respect to retroactive franchise fees in respect of TCI's Systems, or by Insight or its Affiliates with respect to retroactive franchise fees in respect of Insight's Systems that have not been collected prior to Closing will be credited to the agreements contained in this Section 2.06 are an integral part account of the TransactionsTCI or Insight, and that, without these agreements, the other Party would not have entered into this Agreement and each other Transaction Document to which it is a party. Accordingly, if a Party fails to promptly pay any amount due pursuant to this Section 2.06 (such Party, the “Defaulting Party”), andas applicable, in order to obtain payment of such amount, the other Party commences a legal action which results in an order against the Defaulting Party for such amount, or any portion thereof, the Defaulting Party shall pay their full amounts to the other Party such other Party’s out-of-pocket, reasonable and documented costs and expenses (including attorneys’ fees) incurred in connection with such legal action, together with interest on such due and unpaid amounts pursuant to this Section 2.06 at a rate equal to extent that (i) such amounts can legally be passed through to and collected from subscribers of the prime rate as published in The Wall Street Journal in effect on the date such amount was required to be paid plus TCI Systems or Insight Systems after Closing, and (ii) 2% through no agreement has been entered into prohibiting the date collection of such payment was actually receivedamounts, with such amounts upon collection being assets of the Company. For purposes of this Section 3.2(g), Insight shall receive credit for any credit it gave to TCI pursuant to Section 3.2(g) of the Exchange Agreement.
(h) Vista Outdoor agrees that, from the Closing Date through the date that the Closing Adjustment Amount is finally determined The adjustments provided for in accordance with this Section 2.063.2 will be made without duplication. In addition, it shall not, and shall cause each other member none of the Vista Outdoor Group not to, take any action adjustments provided for in this Section 3.2 will be made with respect to any accounting books, records, policies Excluded Asset or procedures on which the Closing Statement is based that would impede with respect to any item of income or delay the final determination of the Closing Adjustment Amountexpense related to an Excluded Asset.
(i) Notwithstanding anything The parties presently intend that the adjustments made in respect of the Exchange Systems pursuant to Section 3 of the Exchange Agreement will be made between TCI and the Company directly without the necessity of Insight making any duplicating adjustments with the Company pursuant to Section 3 of this Agreement. If for any reason Insight and TCI determine that the foregoing procedure may have adverse tax or other consequences to Insight, TCI or the Company, Insight and TCI will cooperate in all reasonable respects to give effect to the contrary in this Agreement or any investigation or examination conducted, or any knowledge possessed or acquired, by or on behalf of Vista Outdoor or Revelyst, the process set forth in this Section 2.06 shall be the sole and exclusive remedy between the Parties for any disputes related to the items required to be included or reflected in the calculation of Closing Cash, Closing Working Capital, Closing Debt, Transaction Expenses, Closing Taxes, Closing Transaction Tax Deductions and the Closing Adjustment Amount.
(j) Without the prior written consent of ▇▇▇▇▇▇ ▇▇▇▇▇▇, none of the time periods set forth in this Section 2.06 shall be extended or waived by any Party. For the avoidance of doubt, from and after the closing of the Revelyst Merger, neither Olibre Parent, Revelyst nor any of their respective Subsidiaries shall have any obligation adjustments contemplated with respect to this Section 2.06the Exchange Systems in a manner that preserves the benefit of the economic bargain between Insight and TCI and avoids any such adverse consequences, provided that to the extent Insight would be required to make any payment to the Company (or decrease the amount of Insight Permitted Debt) in respect of any such duplicating adjustments, Insight shall not be required to make such payment (or give effect to any such decrease) until it receives a payment from TCI pursuant to the Exchange Agreement in the amount of such payment or decrease. Each Party agrees that Olibre Parent is a third party beneficiary of this Section 2.06(j).
(k) For Notwithstanding the foregoing, for purposes of this making the calculations specified on Schedule II of the LLC Agreement:, the Insight Closing Adjustment will include the adjustments in respect of the Exchange Systems.
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Sources: Asset Contribution Agreement (Insight Communications Co Inc)