Closing Liabilities. (a) Not later than two (2) Business Days prior to the Closing, the Company shall provide the Purchaser with an estimated balance sheet of the Company as of the close of business on the Business Day prior to the Closing Date (the “Estimated Closing Balance Sheet”), an officer’s certificate certifying the calculation and aggregate amount of the Closing Liabilities as derived from the Estimated Closing Balance Sheet (the “Closing Liabilities Statement”) and reasonable documentation supporting the determination of the Closing Liabilities. The Estimated Closing Balance Sheet and the Closing Liabilities Statement shall be prepared by Sellers and the Company in accordance with generally accepted accounting principles in Korea (“Korean GAAP”) applied using the same accounting methods, practices, principles, policies and procedures, with consistent classifications, judgments and valuation and estimation and accrual methodologies (the “Methodologies”) that were used in the preparation of the Company Financial Statements as if such Estimated Closing Balance Sheet and Closing Liabilities Statement were being prepared as of a fiscal year end; provided, however, that in the event there is a conflict between Korean GAAP and the Methodologies that were used in the preparation of the Company Financial Statements, the Methodologies under Korean GAAP shall be used in preparing the Estimated Closing Balance Sheet and the Closing Liabilities Statement. (b) The amount of Closing Liabilities as set forth on the Closing Liabilities Statement shall not be included in the working capital calculation set forth in Section 3.2 below, but shall result in a direct reduction to the Purchase Price equal to the amount of such Closing Liabilities. (c) The Purchaser shall have 60 Business Days following the Closing to review the calculation of the Closing Liabilities as set forth on the Closing Liabilities Statement. The Sellers shall fully and promptly cooperate with the Purchaser in providing any information requested by the Purchaser for review of the Closing Liabilities Statement. The calculation of the Closing Liabilities as set forth on the Closing Liabilities Statement shall have been deemed to have been accepted by the Purchaser unless within the 60 Business Day period after Closing the Purchaser shall deliver to Seller Representative a revised statement of its calculation of the Closing Liabilities (the “Revised Closing Liabilities Statement ”). The Revised Closing Liabilities Statement shall be prepared in accordance with Korean GAAP applied using the same Methodologies that were used in the preparation of the Company Financial Statements as if such Revised Closing Liabilities Statement was being provided to auditors in connection with a fiscal year end; provided, however, that in the event there is a conflict between Korean GAAP and the Methodologies that were used in the preparation of the Company Financial Statements, the Methodologies under Korean GAAP shall be used preparing the Revised Closing Liabilities Statement. Upon the Purchaser’s delivery of the Revised Closing Liabilities Statement to the Seller Representative, the parties will mutually review the matter and negotiate in good faith for up to 30 Business Days (or such other period of time as the parties mutually agree) to attempt to agree on the calculation of the Closing Liabilities. If the parties are unable to agree on the calculation of the Closing Liabilities within the 30 Business Day period specified in the preceding sentence, then the disputed portion(s) of such calculation shall be immediately submitted to a firm of independent registered public accountants mutually acceptable to the Purchaser and the Seller Representative for resolution. Any decision of such accounting firm with respect to the disputed portion(s) of the calculation of Closing Liabilities shall be final and binding on the parties hereto. (d) No later than 5 Business Days following the final determination of the Closing Liabilities in accordance with Section 3.1(c) above, the Purchase Price shall be adjusted as provided herein to reflect the Closing Liabilities determined. If the Closing Liabilities as finally determined is greater than the amount stated in the Closing Liabilities Statement and previously deducted from the Purchase Price in accordance with Section 3.1(b) above, then the Purchaser shall instruct the Escrow Agent to deliver to the Purchaser out of the Escrow Fund the amount by which the Closing Liabilities exceeds such amount as provided in the Escrow Agreement. (e) For the purposes of this Section 3.1, “Closing Liabilities” shall mean any amounts related the Company and Seller’s transaction expenses which remain unpaid as of the Closing.
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Sources: Share Purchase Agreement (Ocz Technology Group Inc)
Closing Liabilities. (a) Not later than two (2) Business Days prior to At the Closing, the Company Acquired Companies shall provide be subject only to the Purchaser following liabilities and obligations (the "Closing Liabilities):
(a) the Funded Debt (including the current portion thereof) subject, however, to the provisions of Section 2.8 hereof;
(b) the obligations arising after the Closing Date with an estimated balance sheet respect to the Real Estate Leases and the Scheduled Contracts;
(c) the current liabilities of the Acquired Companies in connection with the operation of the Business arising in the Ordinary Course of Business and in existence on the Closing Date (including the payment obligations of the Company as arising from satisfaction of the close SAR Obligations as set forth in Section 5.8 hereof), including, without limitation, the current liabilities of business the Acquired Companies in respect of the Real Estate Leases and the Scheduled Contracts;
(d) the current obligations of the Acquired Companies to employees of the Acquired Companies in respect of (i) compensation, (ii) accrued vacation pay, (iii) sick pay and (iv) other benefits payable on the Business Day Closing Date (or with respect to periods through the Closing Date) to such employees pursuant to the Plans disclosed in the Disclosure Letter;
(e) the barter and trade liabilities existing on the Closing Date to the extent that they do not exceed the realizable fair market value of the barter and trade credits and receivables existing on the Closing Date included in the Assets;
(f) the deferred income taxes or other taxes payable or tax returns filed with respect to periods prior to the end of the 1996 fiscal year of the Acquired Companies, but only to the extent reserved for in the Balance Sheet and not paid prior to the Closing Date Date;
(g) the “Estimated taxes arising with respect to periods between September 30, 1996 through the Closing Balance Sheet”), an officer’s certificate certifying Date;
(h) the calculation and aggregate amount deferred income liability of the Acquired Companies arising in the ordinary course of the Business and in existence on the Closing Liabilities as derived Date;
(i) the liabilities arising from the Estimated Closing Balance Sheet Proceedings disclosed in Part 3.15 of the Disclosure Letter (as supplemented) that do not have a material adverse effect on the “Closing Liabilities Statement”Buyer, the Business or the Assets;
(j) the liabilities of the Company arising from the following Proceeding: AFFINITY GROUP PLANS, INC. AND NATIONAL ALLIANCE INSURANCE COMPANY V. ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, CAMPING WORLD, INC. AND CWI, INC. (Civ. Action No. 4:97CV00209DDN); and
(k) the Company's obligation under the Company's Organizational Documents to indemnity and reasonable documentation supporting defend ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ and ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ for claims made against them in the determination Proceeding referenced in subparagraph (j) above to the extent such claims arise from actions taken by them in their capacity as members of the board of directors or officers of the Company or, at the request of the Company, as members of the board of directors or officers of another corporation. It is expressly understood and agreed that the Acquired Companies shall not be subject to any liabilities or obligations, whether direct or indirect and whether contingent or otherwise, except for the Closing Liabilities. The Estimated Closing Balance Sheet and the Closing Liabilities Statement shall be prepared by Sellers and the Company in accordance with generally accepted accounting principles in Korea (“Korean GAAP”) applied using the same accounting methods, practices, principles, policies and procedures, with consistent classifications, judgments and valuation and estimation and accrual methodologies (the “Methodologies”) that were used in the preparation of the Company Financial Statements as if such Estimated Closing Balance Sheet and Closing Liabilities Statement were being prepared as of a fiscal year end; provided, however, that in the event there is a conflict between Korean GAAP and the Methodologies that were used in the preparation of the Company Financial Statements, the Methodologies under Korean GAAP shall be used in preparing the Estimated Closing Balance Sheet and the Closing Liabilities Statement.
(b) The amount of Closing Liabilities as set forth on the Closing Liabilities Statement shall not be included in the working capital calculation set forth in Section 3.2 below, but shall result in a direct reduction to the Purchase Price equal to the amount of such Closing Liabilities.
(c) The Purchaser shall have 60 Business Days following the Closing to review the calculation of the Closing Liabilities as set forth on the Closing Liabilities Statement. The Sellers shall fully and promptly cooperate with the Purchaser in providing any information requested by the Purchaser for review of the Closing Liabilities Statement. The calculation of the Closing Liabilities as set forth on the Closing Liabilities Statement shall have been deemed to have been accepted by the Purchaser unless within the 60 Business Day period after Closing the Purchaser shall deliver to Seller Representative a revised statement of its calculation of the Closing Liabilities (the “Revised Closing Liabilities Statement ”). The Revised Closing Liabilities Statement shall be prepared in accordance with Korean GAAP applied using the same Methodologies that were used in the preparation of the Company Financial Statements as if such Revised Closing Liabilities Statement was being provided to auditors in connection with a fiscal year end; provided, however, that in the event there is a conflict between Korean GAAP and the Methodologies that were used in the preparation of the Company Financial Statements, the Methodologies under Korean GAAP shall be used preparing the Revised Closing Liabilities Statement. Upon the Purchaser’s delivery of the Revised Closing Liabilities Statement to the Seller Representative, the parties will mutually review the matter and negotiate in good faith for up to 30 Business Days (or such other period of time as the parties mutually agree) to attempt to agree on the calculation of the Closing Liabilities. If the parties are unable to agree on the calculation of the Closing Liabilities within the 30 Business Day period specified in the preceding sentence, then the disputed portion(s) of such calculation shall be immediately submitted to a firm of independent registered public accountants mutually acceptable to the Purchaser and the Seller Representative for resolution. Any decision of such accounting firm with respect to the disputed portion(s) of the calculation of Closing Liabilities shall be final and binding on the parties hereto.
(d) No later than 5 Business Days following the final determination of the Closing Liabilities in accordance with Section 3.1(c) above, the Purchase Price shall be adjusted as provided herein to reflect the Closing Liabilities determined. If the Closing Liabilities as finally determined is greater than the amount stated in the Closing Liabilities Statement and previously deducted from the Purchase Price in accordance with Section 3.1(b) above, then the Purchaser shall instruct the Escrow Agent to deliver to the Purchaser out of the Escrow Fund the amount by which the Closing Liabilities exceeds such amount as provided in the Escrow Agreement.
(e) For the purposes of this Section 3.1, “Closing Liabilities” shall mean any amounts related the Company and Seller’s transaction expenses which remain unpaid as of the Closing.
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