Completion Accounts. 7.1 The Buyer shall procure that the Group prepares drafts of the Completion Accounts and the Statement in the format set out in schedule 6 (the “Statement”), on the basis of the accounting policies and procedures set out in schedule 7 and delivers them to the Seller within 75 days of Completion. 7.2 The Seller shall notify the Buyer in writing within 45 days of receipt of such draft Completion Accounts and the Statement whether or not it accepts the draft Completion Accounts and Statement for the purposes of this Agreement. 7.3 If the Seller notifies the Buyer that it does not accept such draft Completion Accounts and Statement: (a) it shall, at the same time as it notifies the Buyer that it does not accept such draft Completion Accounts and Statement, set out in such notice in writing its reasons in reasonable detail for such non-acceptance and specify the adjustments which, in its opinion, should be made to the draft Completion Accounts and the Statement in order to comply with the requirements of this Agreement; and (b) the parties shall use reasonable endeavours to: (i) discuss the objections of the Seller; and (ii) try to reach agreement upon the adjustments (if any) required to be made to the draft Completion Accounts and the Statement in each case, within 20 Business Days of the Seller’s notice of non-acceptance pursuant to clause 7.2 (or such other time as the parties may agree in writing). 7.4 If the Seller is satisfied with the draft Completion Accounts and the Statement (either as originally submitted or after adjustments agreed between the Seller and the Buyer) or if the Seller fails to notify the Buyer of its non-acceptance of the draft Completion Accounts and the Statement within the 45 day period referred to in clause 7.2, then the draft Completion Accounts and the Statement (incorporating any agreed adjustments) shall constitute the Completion Accounts and the Statement for the purposes of this Agreement. 7.5 If the Seller and the Buyer do not reach agreement within the 20 Business Day period referred to in clause 7.3(b) (or such other time as the parties may agree in writing) then the matters in dispute and in respect of which reasonable details have been provided by the Seller to the Buyer at the time that it notified the Buyer that it does not accept the Completion Accounts and the Statement in accordance with clause 7.3(a) (and only those) shall be referred for determination by an expert to be agreed by the Seller and the Buyer, and failing such agreement by the Seller and the Buyer within 10 Business Days following the end of the 20 Business Day period referred to in clause 7.3(b) (or such other time as the Seller and the Buyer may agree in writing), on the application of either the Buyer or the Seller by an expert appointed by the President of the Institute of Chartered Accountants of England and Wales from time to time (the “Firm”). The following provisions shall apply to such determination: (a) the Buyer and/or the Buyer’s accountants and the Seller and/or the Seller’s accountants shall each promptly (and in any event within such time frame as reasonably enables the Firm to make its decision in accordance with the time frame set down in clause 7.5(b)) prepare and deliver to the Firm a written statement on the matters in dispute (together with the relevant documents); (b) the Firm shall be requested to give its decision within 20 Business Days (or such later date as the Buyer and the Seller and the Firm agree in writing) of the confirmation and acknowledgment by the Firm of its appointment hereunder; (c) in giving such determination, the Firm shall state what adjustments (if any) are necessary to the draft Completion Accounts and the Statement in respect of the matters in dispute in order to comply with the requirements of this Agreement and shall give its reasons therefor; (d) the Firm shall act as an expert (and not as an arbitrator) in making any such determination, and the Completion Accounts and Statement, as adjusted by the Firm shall be deemed to be finally determined and shall be final and binding on the parties (in the absence of manifest error); (e) each party shall bear the costs and expenses of all counsel and other advisers, witnesses and employees retained by it and the costs and the expenses of the Firm shall be borne between the Seller and the Buyer in such proportions as the Firm shall in its discretion determine or, in the absence of any such determination, equally between the Seller and the Buyer. 7.6 When the Seller and the Buyer reach (or pursuant to clause 7.4 are deemed to reach) agreement on the Completion Accounts and the Statement or when the Completion Accounts and the Statement are finally determined at any stage in accordance with the procedures set out in this clause 7 (including clause 7.5): (a) the Completion Accounts and the Statement as so agreed or determined shall be the Completion Accounts and the Statement for the purposes of this Agreement and shall be final and binding on the parties; and (b) the Working Capital Amount, the Debt and the Cash, in each case, shall be as set out in the Statement. 7.7 Subject to any rule of law or any regulatory body or any provision of any contract entered into prior to the date of this Agreement to the contrary, the Seller shall procure that each member of the Seller’s Group shall, and the Buyer shall procure that the Group shall, promptly provide each other, their respective advisers, the Firm, the Buyer’s accountants and the Seller’s accountants with all information (in their respective possession or control) relating to the operations of the Seller’s Group and/or the Group, as the case may be, including access at all reasonable times to all the Seller’s Group and Group employees, books, records, and other relevant information and all co-operation and assistance, as may in any such case be reasonably required to: (a) enable the production of the Completion Accounts and the Statement; and (b) enable the Firm to determine the Completion Accounts and the Statement. The Seller and the Buyer hereby authorise each other, their respective advisers and the Firm to take copies of all information which they have agreed to provide under this clause 7.7. 7.8 Subject to clause 7.5(e), the Seller and the Buyer shall each bear their own costs and expenses arising out of the preparation and review of the Completion Accounts and Statement.
Appears in 2 contracts
Sources: Share Purchase Agreement, Share Purchase Agreement (Scientific Games Corp)
Completion Accounts. 7.1 6.1 The Buyer Vendors and the Purchaser shall use all reasonable endeavours to procure that the Company shall prepare Completion Accounts for the Group in respect of the period from the Accounting Date to the Completion Accounts Date and a draft Working Capital Statement in accordance with the provisions of Schedule 5 as soon as reasonably practicable after Completion and in any event within sixty (60) days of the Completion Date and that the Company shall deliver the same to the Purchaser and the Purchaser's Accountants.
6.2 The Purchaser shall procure that the Group prepares drafts Purchaser's Accountants shall, within forty five (45) days of the Purchaser's Accountants receiving the draft Completion Accounts and draft Working Capital Statement review the Statement same and applying the same basis and principals referred to in the format set out in schedule 6 (the “Statement”), on the basis of the accounting policies and procedures set out in schedule 7 and delivers them clause 6.1 deliver to the Seller within 75 days of Completion.Purchaser and the Vendors a written notice stating either:
7.2 The Seller shall notify 6.2.1 that in their opinion the Buyer in writing within 45 days of receipt of such draft Completion Accounts and the draft Working Capital Statement whether or not it accepts have been prepared in accordance with the provisions of clause 6.1; or
6.2.2 that they disagree with the draft Completion Accounts and Statement the draft Working Capital Statement, together with a statement detailing their reasons for disagreement and showing their proposed adjustments to the purposes of this Agreementdraft Working Capital Statement.
7.3 If 6.3 The Vendors shall have thirty (30) days from receipt of the Seller notifies notice referred to in clause 6.2.2 to serve a written notice on the Buyer Purchaser stating that it does not accept such draft Completion Accounts and Statementthey:
(a) it shall, at 6.3.1 agree with the same time as it notifies the Buyer that it does not accept such draft Completion Accounts and Statement, set out in such notice in writing its reasons in reasonable detail for such non-acceptance and specify the proposed adjustments which, in its opinion, should be made to the draft Completion Accounts and the Statement in order to comply draft Working Capital Statement; or
6.3.2 disagree with the requirements of this Agreement; and
(b) the parties shall use reasonable endeavours to:
(i) discuss the objections of the Seller; and
(ii) try to reach agreement upon the proposed adjustments (if any) required to be made to the draft Completion Accounts and the Statement in each case, within 20 Business Days of draft Working Capital Statement.
6.4 If the Seller’s Purchaser's Accountants or the Vendors serve a notice of non-acceptance pursuant to clause 7.2 6.2.1 or 6.3.1 (or such other time as the parties case may agree in writing).
7.4 If the Seller is satisfied with be) the draft Completion Accounts and the draft Working Capital Statement (either as originally submitted or after adjustments agreed between the Seller and the Buyer) or if the Seller fails to notify the Buyer of its non-acceptance of the draft Completion Accounts and the Statement within the 45 day period referred to in clause 7.2, then the draft Completion Accounts and the Statement (incorporating any agreed adjustments) shall constitute the Completion Accounts and the Statement for the purposes of this Agreement.
7.5 If the Seller and the Buyer do not reach agreement within the 20 Business Day period referred to in clause 7.3(b) (or such other time as the parties may agree in writing) then the matters in dispute and in respect of which reasonable details have been provided by the Seller to the Buyer at the time that it notified the Buyer that it does not accept the Completion Accounts and the Statement in accordance with clause 7.3(a) (and only those) shall be referred for determination by an expert to be agreed by the Seller and the Buyer, and failing such agreement by the Seller and the Buyer within 10 Business Days following the end of the 20 Business Day period referred to in clause 7.3(b) (or such other time as the Seller and the Buyer may agree in writing), on the application of either the Buyer or the Seller by an expert appointed by the President of the Institute of Chartered Accountants of England and Wales from time to time (the “Firm”). The following provisions shall apply to such determination:
(a) the Buyer and/or the Buyer’s accountants and the Seller and/or the Seller’s accountants shall each promptly (and in any event within such time frame as reasonably enables the Firm to make its decision in accordance with the time frame set down in clause 7.5(b)) prepare and deliver to the Firm a written statement on the matters in dispute (together with the relevant documents);
(b) the Firm shall be requested to give its decision within 20 Business Days (or such later date as the Buyer and the Seller and the Firm agree in writing) of the confirmation and acknowledgment by the Firm of its appointment hereunder;
(c) in giving such determination, the Firm shall state what adjustments (if any) are necessary to the draft Completion Accounts and the Statement in respect of the matters in dispute in order to comply with the requirements of this Agreement and shall give its reasons therefor;
(d) the Firm shall act as an expert (and not as an arbitrator) in making any such determination, and the Completion Accounts and Statement, as adjusted by the Firm shall be deemed to be finally determined and shall be final and binding on the parties (in the absence of manifest error);
(eif relevant) each party shall bear the costs and expenses of all counsel and other advisers, witnesses and employees retained by it and the costs and the expenses of the Firm shall be borne between the Seller and the Buyer in such proportions as the Firm shall in its discretion determine or, in the absence of any such determination, equally between the Seller and the Buyer.
7.6 When the Seller and the Buyer reach (or pursuant to clause 7.4 are deemed to reach) agreement on the Completion Accounts and the Statement or when the Completion Accounts and the Statement are finally determined at any stage in accordance with the procedures set out in this clause 7 (including clause 7.5):
(a) the Completion Accounts and the Statement as so agreed or determined shall be the Completion Accounts and the Working Capital Statement respectively for the purposes of this Agreement and shall be final and binding on the parties; and
(b) the Working Capital Amount, the Debt and the Cash, in each case, shall be as set out in the Statement.
7.7 Subject to any rule of law or any regulatory body or any provision of any contract entered into prior to the date of this Agreement to the contrary, the Seller shall procure that each member of the Seller’s Group shall, and the Buyer shall procure that the Group shall, promptly provide each other, their respective advisers, the Firm, the Buyer’s accountants and the Seller’s accountants with all information (in their respective possession or control) relating to the operations of the Seller’s Group and/or the Group, as the case may be, including access at all reasonable times to all the Seller’s Group and Group employees, books, records, and other relevant information and all co-operation and assistance, as may in any but such case be reasonably required to:
(a) enable the production of the Completion Accounts and Working Capital Statement shall be without prejudice to the Statement; and
(b) enable Purchaser's right to claim under the Firm to determine the Completion Accounts and the Statement. The Seller and the Buyer hereby authorise each otherWarranties, their respective advisers and the Firm to take copies clause 10 or otherwise in respect of all information which they have agreed to provide under this clause 7.7.
7.8 Subject any matter, but subject always to clause 7.5(e), the Seller and the Buyer shall each bear their own costs and expenses arising out of the preparation and review of the Completion Accounts and Statement9.
Appears in 2 contracts
Sources: Share Purchase Agreement (SFX Entertainment Inc), Share Purchase Agreement (SFX Entertainment Inc)
Completion Accounts. 7.1 6.1 The Buyer shall procure that the Group prepares drafts of the Completion Accounts and the Statement in the format set out in part 2 of schedule 6 7 (the “Statement”), on the basis of the accounting policies and procedures set out in schedule 7 8 and delivers deliver them to the Seller within 75 days 40 Business Days of Completion.
7.2 6.2 The Seller shall notify the Buyer in writing within 45 days 20 Business Days of receipt of such draft Completion Accounts and the Statement whether or not it accepts the draft Completion Accounts and Statement for the purposes of this Agreementagreement.
7.3 6.3 If the Seller notifies the Buyer that it does not accept such draft Completion Accounts and Statement:
(a) it shall, at the same time as it notifies the Buyer that it does not accept such draft Completion Accounts and Statement, set out in such notice in writing its reasons in reasonable detail for such non-acceptance and specify the adjustments which, in its opinion, should be made to the draft Completion Accounts and the Statement in order to comply with the requirements of this Agreementagreement; and
(b) the parties shall use all reasonable endeavours to:
(i) meet and discuss the objections of the Seller; , and
(ii) try to reach agreement upon the adjustments (if any) required to be made to the draft Completion Accounts and the Statement Statement, in each case, within 20 15 Business Days of the Seller’s notice of non-acceptance pursuant to clause 7.2 6.2 (or such other time as the parties Parties may agree in writing).
7.4 6.4 If the Seller is satisfied with the draft Completion Accounts and the Statement (either as originally submitted or after adjustments agreed between the Seller and the Buyer) or if the Seller fails to notify the Buyer of its non-acceptance of the draft Completion Accounts and the Statement within the 45 day 15 Business Day period referred to in clause 7.26.2, then the draft Completion Accounts and the Statement (incorporating any agreed adjustments) shall constitute the Completion Accounts and the Statement for the purposes of this Agreementagreement.
7.5 6.5 If the Seller and the Buyer do not reach agreement within the 20 15 Business Day period referred to in clause 7.3(b6.3(b) (or such other time as the parties Parties may agree in writing) then the matters in dispute and in respect of which reasonable details have been provided by the Seller to the Buyer at the time that it notified the Buyer that it does not accept the Completion Accounts and the Statement in accordance with clause 7.3(a) (and only those) shall be referred for determination by an expert to be agreed by the Seller and the Buyer, and failing such agreement by the Seller and the Buyer within 10 Business Days following the end of the 20 Business Day period referred to in clause 7.3(b) (or such other time as the Seller and the Buyer may agree in writing)referred, on the application of either the Buyer Seller or the Seller Buyer, for determination by an expert appointed independent firm of internationally recognised chartered accountants to be agreed upon by the Seller and the Buyer or, failing agreement, to be selected, on the application of either the Seller or the Buyer, by the President for the time being of the Institute of Chartered Accountants of in England and Wales from time to time or his duly appointed deputy (the “Firmfirm”). The following provisions shall apply to such determination:
(a) the Buyer and/or the Buyer’s accountants and the Seller and/or the Seller’s accountants shall each promptly (and in any event within such time frame as reasonably enables the Firm firm to make its decision in accordance with the time frame set down in clause 7.5(b6.5(b)) prepare and deliver to the Firm firm a written statement on the matters in dispute (together with the relevant supporting documents);
(b) the Firm firm shall be requested to give its decision within 20 15 Business Days (or by such later date as the Buyer and the Seller and the Firm agree in writingfirm determines) of the confirmation and acknowledgment by the Firm firm of its appointment hereunder;
(c) in giving such determination, the Firm firm shall state what adjustments (if any) are necessary to the draft Completion Accounts and the Statement in respect of the matters in dispute in order to comply with the requirements of this Agreement agreement and shall give its reasons therefor;
(d) the Firm firm shall act as an expert (and not as an arbitrator) in making any such determination, and the Completion Accounts and Statement, as adjusted by the Firm shall be deemed to be finally determined and determination which shall be final and binding on the parties Parties (in the absence of manifest error);
(e) each party Party shall bear the costs and expenses of all counsel and other advisers, witnesses and employees retained by it and the costs and the expenses of the Firm firm shall be borne between the Seller and the Buyer in such proportions as the Firm firm shall in its discretion determine or, in the absence of any such determination, equally between the Seller and the Buyer.
7.6 6.6 When the Seller and the Buyer reach (or pursuant to clause 7.4 6.4 are deemed to reach) agreement on the Completion Accounts and the Statement or when the Completion Accounts and the Statement are finally determined at any stage in accordance with the procedures set out in this clause 7 (including clause 7.5):6:
(a) the Completion Accounts and the Statement as so agreed or determined shall be the Completion Accounts and the Statement for the purposes of this Agreement agreement and shall be final and binding on the partiesParties; and
(b) the Working Capital Amount, the Debt and the Cash, in each case, Cash shall be as set out in the Statement.
7.7 6.7 Subject to any rule of law or any regulatory body or any provision of any contract or arrangement entered into prior to the date of this Agreement agreement to the contrary, the Seller shall procure that each member of the Seller’s Sellers’ Group shall, and the Buyer shall procure that the Group shall, promptly provide each other, their respective advisers, the Firmfirm, the Buyer’s accountants and the Seller’s accountants with all information (in their respective possession or control) relating to the operations of the Seller’s Group and/or the Group, as the case may be, including access at all reasonable times to all the SellerGroup’s Group and Group employees, books, records, and other relevant information and all co-operation and assistance, as may in any such case be reasonably required to:
(a) enable the production of the Completion Accounts and the Statement; and
(b) enable the Firm firm to determine the Completion Accounts and the Statement. The Seller and the Buyer hereby authorise each other, their respective advisers and the Firm firm to take copies of all information which they have agreed to provide under this clause 7.76.7.
7.8 6.8 Subject to clause 7.5(e6.5(e), the Seller and the Buyer shall each bear their own costs and expenses arising out of the preparation and review of the Completion Accounts and the Statement.
Appears in 2 contracts
Sources: Share Purchase Agreement, Share Purchase Agreement (Willbros Group, Inc.\NEW\)
Completion Accounts. 7.1 10.1 The Buyer Vendors shall procure that within 30 days of Completion draft consolidated accounts for the Group prepares drafts as at 30 June 2001 shall be prepared in accordance with the provisions of Schedule 9.
10.2 Following the Completion Accounts and preparation of such draft accounts, the Statement in the format set out in schedule 6 (the “Statement”), on the basis of the accounting policies and procedures set out in schedule 7 and delivers Company shall submit them to the Seller within 75 days of CompletionPurchaser's Accountants who shall conduct an audit applying the same basis and principles referred to in Schedule 9. The Vendors shall make the working papers available to the Purchaser's Accountants if required by them in carrying out their review.
7.2 The Seller shall notify the Buyer in writing within 45 days of receipt of such draft Completion Accounts and the Statement whether or not it accepts the draft Completion Accounts and Statement for the purposes of this Agreement.
7.3 10.3 If the Seller notifies the Buyer that it does not accept such draft Completion Accounts and Statement:
(a) it shall, at the same time as it notifies the Buyer that it does not accept such draft Completion Accounts and Statement, set out in such notice in writing its reasons in reasonable detail for such non-acceptance and specify the adjustments which, in its opinion, should be made Purchaser's Accountants agree to the draft Completion Accounts form and the Statement in order to comply with the requirements of this Agreement; and
(b) the parties shall use reasonable endeavours to:
(i) discuss the objections of the Seller; and
(ii) try to reach agreement upon the adjustments (if any) required to be made to the draft Completion Accounts and the Statement in each case, within 20 Business Days of the Seller’s notice of non-acceptance pursuant to clause 7.2 (or such other time as the parties may agree in writing).
7.4 If the Seller is satisfied with the draft Completion Accounts and the Statement (either as originally submitted or after adjustments agreed between the Seller and the Buyer) or if the Seller fails to notify the Buyer of its non-acceptance content of the draft Completion Accounts accounts within 60 days of the date on which the drafts were submitted (or within such other period as the Vendors and the Statement within Purchaser may agree), the 45 day period referred to in clause 7.2, then the draft Completion Accounts and the Statement (incorporating any accounts as so agreed adjustments) shall constitute be the Completion Accounts and Accounts, but such agreement shall be without prejudice to the Statement for Purchaser's right to claim under the purposes of this Agreement.
7.5 If Warranties, the Seller and the Buyer do not reach agreement within the 20 Business Day period referred to in clause 7.3(b) (Tax Warranties or such other time as the parties may agree in writing) then the matters in dispute and otherwise in respect of any matter.
10.4 If the Purchaser's Accountants are not able to agree the form and content of the accounts within 60 days of the date on which reasonable details have been provided the drafts were first submitted (or within such other period as the Vendors and the Purchaser may agree), the matter may be referred by the Seller Vendors or the Purchaser to an independent firm of chartered accountants selected by agreement between the Buyer at Vendors and the Purchaser or, failing agreement, nominated by the President for the time that it notified the Buyer that it does not accept the Completion Accounts and the Statement in accordance with clause 7.3(a) (and only those) shall be referred for determination by an expert to be agreed by the Seller and the Buyer, and failing such agreement by the Seller and the Buyer within 10 Business Days following the end being of the 20 Business Day period referred to Institute of Chartered Accountants in clause 7.3(b) (or such other time as the Seller England and the Buyer may agree in writing), Wales on the application of either the Buyer Vendors or the Seller by an expert appointed by the President of the Institute of Chartered Accountants of England and Wales from time to time (the “Firm”). The following provisions shall apply to such determinationPurchaser and:
(a) the Buyer and/or the Buyer’s 10.4.1 such independent firm of chartered accountants and the Seller and/or the Seller’s accountants shall each promptly (and in any event within such time frame as reasonably enables the Firm to make its decision in accordance with the time frame set down in clause 7.5(b)) prepare and deliver to the Firm a written statement on the matters in dispute (together with the relevant documents);
(b) the Firm shall be requested to give its decision within 20 Business Days settle any matter in dispute, applying the same basis and principles as are referred to in clause 10.1 and Schedule 9 and (or such later date as unless both the Buyer Vendors and the Seller and the Firm agree Purchaser shall otherwise direct in writing) determine the form and content of the confirmation Completion Accounts; and
10.4.2 the decision of such firm of chartered accountants as to the matter in dispute and acknowledgment by the Firm of its appointment hereunder;
(c) in giving such determination, the Firm shall state what adjustments their determination (if any) are necessary as to the draft Completion Accounts form and the Statement in respect content of the matters in dispute in order to comply with the requirements of this Agreement and shall give its reasons therefor;
(d) the Firm shall act as an expert (and not as an arbitrator) in making any such determination, and the Completion Accounts and Statement, as adjusted by the Firm shall be deemed to be finally determined and shall be final and binding on the parties (hereto and such chartered accountants shall be deemed to act as experts and not as arbitrators.
10.5 The costs incurred by the Vendors in the absence of manifest error);
(e) each party shall bear the costs and expenses of all counsel and other advisers, witnesses and employees retained by it and the costs and the expenses respect of the Firm preparation and determination of the Completion Accounts shall be borne between by the Seller Vendors other than the costs of the Purchaser's Accountants which shall be an adjustment to the Total Consideration (through the deduction of the Interim Bridge Loan in accordance with Schedule 1C). The costs of the independent chartered accountant, if any, shall be borne by the Vendors and the Buyer in such proportions as the Firm shall in its discretion determine or, in the absence of any such determination, equally between the Seller and the BuyerPurchaser equally.
7.6 When 10.6 Within 7 days of the Seller and the Buyer reach (or pursuant to clause 7.4 are deemed to reach) agreement on determination of the Completion Accounts and in accordance with clauses 10.3 or 10.4 if the Statement or when amount of the net current assets (being current assets less current liabilities) shown in the Completion Accounts and is less than the Statement are finally determined at any stage amount of the net current assets as shown in accordance with the procedures set out in this clause 7 Projected Completion Balance Sheet (including clause 7.5):
(a) the Completion Accounts and the Statement as so agreed or determined shall be the Completion Accounts and the Statement for the purposes of this Agreement and shall be final and binding on the parties; and
(b) the Working Capital Amount"Target Net Current Assets"), the Debt and Vendors will pay in cash to the CashPurchaser, in each casesubject to clause 10.7, shall be an amount equal to their aggregate several liability (as set out in the Statementclause 1.10) of such shortfall and interest thereon as specified in clause 10.
7.7 Subject to any rule of law or any regulatory body or any provision of any contract entered into prior to the date of this Agreement to the contrary, the Seller shall procure that each member of the Seller’s Group shall, and the Buyer shall procure that the Group shall, promptly provide each other, their respective advisers, the Firm, the Buyer’s accountants and the Seller’s accountants with all information (in their respective possession or control) relating to the operations of the Seller’s Group and/or the Group, as the case may be, including access at all reasonable times to all the Seller’s Group and Group employees, books, records, and other relevant information and all co-operation and assistance, as may in any such case be reasonably required to:
(a) enable the production of the Completion Accounts and the Statement; and
(b) enable the Firm to determine the Completion Accounts and the Statement. The Seller and the Buyer hereby authorise each other, their respective advisers and the Firm to take copies of all information which they have agreed to provide under this clause 7.7.
7.8 Subject to clause 7.5(e), the Seller and the Buyer shall each bear their own costs and expenses arising out of the preparation and review of the Completion Accounts and Statement.
Appears in 2 contracts
Sources: Principal Share Purchase Agreement (Opentv Corp), Principal Share Purchase Agreement (Opentv Corp)
Completion Accounts. 7.1 The Buyer Purchaser shall procure that the Group prepares drafts as soon as possible, and in any event within 60 calendar days of the Completion Accounts and Date a draft Completion Balance Sheet (having the Statement same line items as the balance sheet contained in the format Accounts for the Sale Group member to which such draft Completion Balance Sheet relates and by way of example only, an illustrative calculation is set out in schedule 6 Appendix I) in respect of each of SCCL and UK OpCo (such Completion Balance Sheets together the “StatementDraft Completion Balance Sheets”), on ) are prepared and delivered to the basis Seller. Each Draft Completion Balance Sheet shall include a draft statement of Net Working Capital for the company to which such Completion Balance Sheet relates. The Draft Completion Balance Sheet for SCCL shall specify the Purchaser’s calculation of the accounting policies and procedures set out SCCL Intergroup Debt. The Purchaser shall prepare the Draft Completion Balance Sheets in schedule 7 and delivers them to accordance with the Seller within 75 days of CompletionAccounting Principles.
7.2 The Seller shall notify the Buyer in writing within 45 days of receipt of such draft Completion Accounts and the Statement whether Seller’s Auditors shall be entitled to review the Draft Completion Balance Sheets for a period of 60 calendar days following receipt from the Purchaser.
7.3 The Purchaser shall provide the Seller and the Seller’s Auditors with such information as the Seller and the Seller’s Auditors shall reasonably require or shall procure that such information is provided to the Seller and the Seller’s Auditors and allow the Seller and the Seller’s Auditors access to each member of the Sale Group and its books and records, its employees and advisers (at reasonable times and upon reasonable notice and subject to the Seller agreeing in favour of the Purchaser to keep all confidential information disclosed to it in accordance with this clause 7.3 confidential on the terms as set out in clause 21), and shall use its reasonable efforts to procure access to the Purchaser’s Auditors (if retained) and their working papers (or, if the Purchaser’s Auditors are not it accepts the draft Completion Accounts and Statement retained for the purposes of this Agreement.
7.3 If the Seller notifies the Buyer that it does not accept such draft Completion Accounts and Statement:
(a) it shall, at the same time as it notifies the Buyer that it does not accept such draft Completion Accounts and Statement, set out in such notice in writing its reasons in reasonable detail for such non-acceptance and specify the adjustments which, in its opinion, should be made to preparing the draft Completion Accounts Balance Sheet, the Purchaser’s own working papers or equivalent) in each case insofar as is reasonably required for the analysis and the Statement in order to comply with the requirements of this Agreement; and
(b) the parties shall use reasonable endeavours to:
(i) discuss the objections verification of the Seller; and
Draft Completion Balance Sheets (ii) try to reach agreement upon the adjustments (if any) required to be made to including the draft Completion Accounts and the Statement in each case, within 20 Business Days statements of the Seller’s notice of non-acceptance pursuant to clause 7.2 (or such other time as the parties may agree in writingNet Working Capital contained therein).
7.4 At or before the end of the period of 60 calendar days referred to in clause 7.2, the Seller shall either:
7.4.1 notify the Purchaser that it accepts each Draft Completion Balance Sheet in its entirety, in which case the Draft Completion Balance Sheets shall constitute the Completion Balance Sheets (and the amount of the Net Working Capital shall be the amount set out in the draft Net Working Capital statements contained therein) and such Draft Completion Balance Sheets shall be final and binding on the Seller and the Purchaser; or
7.4.2 deliver to the Purchaser written notice of those items and, where practicable, the amount in each Draft Completion Balance Sheet or draft statement of Net Working Capital, as appropriate, which it disputes, in which case only those items or amounts identified by the Seller (the “Disputed Items”) shall be in dispute and shall be agreed or determined in accordance with clause 7.5.
7.5 If the Seller is satisfied with delivers a notice under clause 7.4.2 then the draft Completion Accounts Seller and the Statement (either Purchaser shall use their respective reasonable endeavours to agree the Disputed Items within 30 calendar days, or such longer period as originally submitted or after adjustments may be agreed between them. Any Disputed Items agreed between the Seller and the Buyer) or if the Seller fails to notify the Buyer of its non-acceptance of the draft Completion Accounts and the Statement Purchaser within the 45 that 30 calendar day period referred shall be reflected in amendments to in clause 7.2the Draft Completion Balance Sheets. At the end of that 30 calendar day period, then the draft Completion Accounts and the Statement (incorporating any those Disputed Items which have not been agreed adjustments) shall constitute the Completion Accounts and the Statement for the purposes of this Agreement.
7.5 If between the Seller and the Buyer do not reach agreement within the 20 Business Day period referred to in clause 7.3(bPurchaser (if any) (or such other time as the parties may agree in writing) then the matters in dispute and in respect of which reasonable details have been provided by the Seller to the Buyer at the time that it notified the Buyer that it does not accept the Completion Accounts and the Statement in accordance with clause 7.3(a) (and only those“Unresolved Disputed Items”) shall be referred for final binding determination by an expert to be agreed by such firm of independent accountants of international standing (the “Expert”) as the Seller and the BuyerPurchaser may agree or, and failing such in the absence of agreement by the Seller and the Buyer within 10 Business Days following the end expiry of the 20 Business Day such 30 day period, or longer period referred to in clause 7.3(b) (or such other time as agreed between the Seller and the Buyer Purchaser, as may agree in writing), on be selected at the application request of either the Buyer Seller or the Seller by an expert appointed Purchaser by the President of the Institute of Chartered Accountants of in England and Wales from time Wales, with instructions that the Expert render his decision on the Unresolved Disputed Items (and any matters specifically relating thereto) and notify it to time (the “Firm”). The following provisions shall apply to such determination:
(a) the Buyer and/or the Buyer’s accountants Seller and the Purchaser within 30 days of the Expert accepting such referral. In each case, the Expert so selected (either by agreement between the Seller and/or and the Seller’s accountants Purchaser or otherwise in accordance with this clause 7.5) shall each promptly (act as expert and not as arbitrator and the Unresolved Disputed Items in any event within such time frame as reasonably enables a Draft Completion Balance Sheet will be determined by the Firm to make its decision Expert in accordance with the time frame set down in clause 7.5(b)) prepare Accounting Principles and deliver such adjustments as are required to be made as a result of the Expert’s determination of such Unresolved Disputed Items shall be made to the Firm a written statement on Draft Completion Balance Sheet in which such Unresolved Disputed Items appear or to which such Unresolved Disputed Items relate which shall then constitute the matters in dispute Completion Balance Sheet (together with and the relevant documents);
(b) amount of the Firm Net Working Capital shall be requested to give its decision within 20 Business Days (or such later date the amount set out in the statement of Net Working Capital as the Buyer and the Seller and the Firm agree in writingso adjusted) of the confirmation and acknowledgment by the Firm of its appointment hereunder;
(c) in giving such determination, the Firm shall state what adjustments (if any) are necessary to the draft Completion Accounts and the Statement in respect of the matters in dispute in order to comply with the requirements of this Agreement and shall give its reasons therefor;
(d) the Firm shall act as an expert (and not as an arbitrator) in making any such determination, and the Completion Accounts and Statement, as adjusted by the Firm shall be deemed to be finally determined and which shall be final and binding on the parties (in the absence of manifest error);
(e) each party shall bear the costs and expenses of all counsel and other advisers, witnesses and employees retained by it and the costs and the expenses of the Firm shall be borne between the Seller and the Buyer in such proportions as the Firm shall in its discretion determine or, in the absence of any such determination, equally between the Seller and the Buyer.
7.6 When the Seller and the Buyer reach (or pursuant to clause 7.4 are deemed to reach) agreement on the Completion Accounts and the Statement or when the Completion Accounts and the Statement are finally determined at any stage in accordance with the procedures set out in this clause 7 (including clause 7.5):
(a) the Completion Accounts and the Statement as so agreed or determined shall be the Completion Accounts and the Statement for the purposes of this Agreement and shall be final and binding on the parties; and
(b) the Working Capital Amount, the Debt and the Cash, in each case, shall be as set out in the Statement.
7.7 Subject to any rule of law or any regulatory body or any provision of any contract entered into prior to the date of this Agreement to the contrary, the Seller shall procure that each member of the Seller’s Group shall, and the Buyer shall procure that the Group shall, promptly provide each other, their respective advisers, the Firm, the Buyer’s accountants and the Seller’s accountants with all information (in their respective possession or control) relating to the operations of the Seller’s Group and/or the Group, as the case may be, including access at all reasonable times to all the Seller’s Group and Group employees, books, records, and other relevant information and all co-operation and assistance, as may in any such case be reasonably required to:
(a) enable the production of the Completion Accounts and the Statement; and
(b) enable the Firm to determine the Completion Accounts and the Statement. The Seller and the Buyer hereby authorise each other, their respective advisers and the Firm to take copies of all information which they have agreed to provide under this clause 7.7.
7.8 Subject to clause 7.5(e), the Seller and the Buyer shall each bear their own costs and expenses arising out of the preparation and review of the Completion Accounts and Statement.the
Appears in 1 contract
Sources: Share Sale and Purchase Agreement (International Power PLC)
Completion Accounts. 7.1 3.2.1 The Buyer Purchasers shall procure that the Group prepares drafts of the prepare draft Completion Accounts and the a draft Completion Statement in the format set out in schedule 6 (the “Statement”), on the basis and deliver a copy of the accounting policies and procedures set out in schedule 7 and delivers them same to the Seller within 75 days 30 Business Days of Completion.
7.2 3.2.2 The Seller shall notify the Buyer in writing within 45 days of receipt of such draft Completion Accounts and the Statement whether or not it accepts the draft Completion Accounts and Statement for the purposes of this Agreement.
7.3 If the Seller notifies the Buyer that it does not accept such draft Completion Accounts and Statement:
(a) it shall, at the same time as it notifies the Buyer that it does not accept such draft Completion Accounts and Statement, set out in such notice in writing its reasons in reasonable detail for such non-acceptance and specify the adjustments which, in its opinion, should be made to may review the draft Completion Accounts and the draft Completion Statement in order to comply satisfy itself that they have been prepared in accordance with the requirements of this Agreement; and
(b) the parties shall use reasonable endeavours to:
(i) discuss the objections of the Seller; and
(ii) try to reach agreement upon the adjustments (if any) required to be made to the draft Completion Accounts clause 3.2 and the Statement in each caseprovisions of Schedule 8. Unless, within 20 15 Business Days of the Seller’s notice of non-acceptance pursuant to clause 7.2 (or such other time as the parties may agree in writing).
7.4 If the Seller is satisfied with the draft Completion Accounts and the Statement (either as originally submitted or after adjustments agreed between the Seller and the Buyer) or if the Seller fails to notify the Buyer of its non-acceptance receipt of the draft Completion Accounts and the draft Completion Statement within by the 45 Seller (excluding the day period referred to of receipt) the Seller notifies the Purchasers in writing of any respect in which they are not satisfied that the details of the draft Completion Accounts or the draft Completion Statement are in accordance with this clause 7.23.2 and the provisions of Schedule 8, then the contents of the draft Completion Accounts and the draft Completion Statement shall be final and binding as between the Purchasers and the Seller.
3.2.3 If the Seller does so notify the Purchasers, the Seller’s notification shall specify (incorporating any agreed adjustmentsa) which items of the draft Completion Accounts or the draft Completion Statement are disputed, (b) the reasons therefor and (c) the monetary value of the adjustments that the Seller claims are accordingly required to be made.
3.2.4 If the Seller does so notify the Purchasers, the parties shall constitute endeavour within the period expiring 15 Business Days after receipt of the Seller’s written notice by the Purchasers (excluding the day of receipt) to resolve the matter and if the matter is not so resolved it may be resolved by an accountant (the “Independent Accountant”) in accordance with the provisions of clauses 3.2.6 to 3.2.9 below.
3.2.5 The Purchasers and the Seller shall provide each other and each other’s respective professional advisers with all relevant papers and all information and explanations as are reasonably required to assist the Purchasers and the Seller in their endeavours to agree the Completion Accounts and the Statement for the purposes of this AgreementCompletion Statement.
7.5 If the Seller and the Buyer do not reach agreement within the 20 Business Day period referred to in clause 7.3(b) (or such other time as the parties may agree in writing) then the matters in dispute and in respect of which reasonable details have been provided by the Seller to the Buyer at the time that it notified the Buyer that it does not accept the Completion Accounts and the Statement in accordance with clause 7.3(a) (and only those) 3.2.6 The Independent Accountant shall be referred for determination by an expert to be a firm of chartered accountants agreed on by the Seller and the BuyerPurchasers or, and failing if they cannot agree on such agreement by the Seller and the Buyer appointment within 10 5 Business Days following of either party giving notice in writing to the end other that it desires an Independent Accountant to be appointed, such firm of the 20 Business Day period referred to in clause 7.3(b) (or such other time chartered accountants as the Seller and the Buyer may agree in writing), be nominated on the application of either the Buyer or the Seller by an expert appointed one of them by the President or other senior officer for the time being of the Institute of Chartered Accountants of in England and Wales from time Wales.
3.2.7 If any disagreement or dispute under this agreement is referred to time (the “Firm”). The following provisions shall apply to such determinationIndependent Accountant:
(a) the Buyer and/or the Buyer’s accountants and the Seller and/or the Seller’s accountants shall parties will each promptly (and in any event within such time frame as reasonably enables the Firm use all reasonable endeavours to make its decision in accordance co-operate with the time frame set down Independent Accountant in clause 7.5(b)) prepare resolving such disagreement or dispute, and deliver for that purpose will provide to him all such information and documentation as he may reasonably require for the Firm a written statement on the matters in dispute (together with the relevant documents)purposes of settling such disagreement or dispute;
(b) the Firm Independent Accountant shall be requested have the right to give its decision within 20 Business Days (or seek such later date professional assistance and advice as the Buyer and the Seller and the Firm agree in writing) of the confirmation and acknowledgment by the Firm of its appointment hereunderhe may reasonably require;
(c) in giving such determination, the Firm shall state what adjustments (if any) are necessary to the draft Completion Accounts and the Statement in respect fees of the matters Independent Accountant and other professional fees incurred by him shall be paid 50% by the Seller and 50% by the Purchaser save where the Independent Accountant directs otherwise in dispute in order to comply with the requirements of this Agreement and shall give its reasons thereforwriting;
(d) the Firm Independent Accountant will be requested to make a decision within 15 Business Days of the referral.
3.2.8 The Independent Accountant shall act as an expert (and not as an arbitrator) in making any such determinationarbitrator and, and the Completion Accounts and Statement, as adjusted by the Firm shall be deemed to be finally determined and shall be final and binding on the parties (save in the absence case of fraud or manifest error);
(e) each party shall bear the costs and expenses of all counsel and other advisers, witnesses and employees retained by it and the costs and the expenses of the Firm shall be borne between the Seller and the Buyer in such proportions as the Firm shall in its discretion determine or, in the absence of any such determination, equally between the Seller and the Buyer.
7.6 When the Seller and the Buyer reach (or pursuant to clause 7.4 are deemed to reach) agreement on the Completion Accounts and the Statement or when the Completion Accounts and the Statement are finally determined at any stage in accordance with the procedures set out in this clause 7 (including clause 7.5):
(a) the Completion Accounts and the Statement as so agreed or determined shall be the Completion Accounts and the Statement for the purposes of this Agreement and his decision shall be final and binding on the parties; and.
(b) 3.2.9 The draft Completion Accounts and draft Completion Statement shall be determined as final and binding either pursuant to clause 3.2.2 above or as a result of agreement between the Purchasers and the Seller or as a result of the decision of the Independent Accountant.
3.2.10 If Working Capital Amount, as shown by the Debt final and the Cash, in each case, binding Completion Statement shall be as set out in the Statement.
7.7 Subject to any rule of law or any regulatory body or any provision of any contract entered into prior to the date of this Agreement to the contrary, the Seller shall procure that each member of the Seller’s Group shall, and the Buyer shall procure that the Group shall, promptly provide each other, their respective advisers, the Firm, the Buyer’s accountants and the Seller’s accountants with all information (in their respective possession or control) relating to the operations of the Seller’s Group and/or the Group, as the case may be, including access at all reasonable times to all the Seller’s Group and Group employees, books, records, and other relevant information and all co-operation and assistance, as may in any such case be reasonably required to:
(a) enable a sum which is greater than £2,700,000, the production Purchasers shall pay to the Seller, subject to and in accordance with clause 3.2.13, an amount equal to the difference between such sum and the Target Working Capital;
(b) a sum which is less than £2,600,000, the Seller shall pay to the Purchasers, subject to and in accordance with clause 3.2.13, an amount equal to the difference between such sum and the Target Working Capital; or
(c) between £2,600,000 and £2,700,000 no further payment shall be made by any party under this clause 3.2.10.
3.2.11 If Net External Debt as shown by the final and binding Completion Statement shall be:
(a) a sum which is greater than the Assumed Net External Debt, the Seller shall pay to the Purchasers subject to and in accordance with clause 3.2.13 a sum equal to the difference;
(b) a sum which is less than the Assumed Net External Debt the Purchasers shall pay to the Seller subject to and in accordance with clause 3.2.13 a sum equal to the difference; or
(c) equal to the Assumed Net External Debt, no further payment shall be made by any party under this clause 3.2.11.
3.2.12 If Intra-Group Indebtedness as shown by the final and binding Completion Statement shall be:
(a) a sum which is greater than the Assumed Intra-Group Indebtedness, that part of the Completion Payment which constituted repayment of Intra-Group Indebtedness shall be deemed to be increased and that part of the Completion Payment which constituted payment of Purchase Price shall be deemed to be decreased, by a sum equal to the difference;
(b) a sum which is less than the Assumed Intra-Group Indebtedness, that part of the Completion Payment which constituted repayment of Intra-Group Indebtedness shall be deemed to be decreased and that part of the Completion Payment which constituted payment of Purchase Price shall be deemed to be increased, by a sum equal to the difference; or
(c) equal to the Assumed Intra-Group Indebtedness, no further adjustment shall be made under this clause 3.2.12.
3.2.13 The amount payable to the Purchasers by the Seller or to the Seller by the Purchasers as a result of the net of the Working Capital and Net External Debt adjustments above shall be paid:
(a) within 5 Business Days after the date on which the Completion Accounts and the Statement; andCompletion Statement have become final and binding pursuant to clause 3.2.9;
(b) enable together with interest on the Firm amount to determine be paid calculated at the rate of 1% per annum above the base lending rate from time to time of The Royal Bank of Scotland plc from the Completion Accounts Date until the date of actual payment accruing day to day on the basis of actual number of days elapsed and a year of 365 days;
(c) by electronic transfer:
(i) (where that sum is expressed to be payable to the Statement. The Seller and Seller) to the Buyer hereby authorise each other, their respective advisers and Seller’s Solicitors Account or such other account in the Firm to take copies of all information which they have agreed to provide under this clause 7.7.
7.8 Subject to clause 7.5(e), UK as the Seller and may specify in writing to the Buyer shall each bear their own costs and expenses arising out of Purchasers; or
(ii) (where that sum is expressed to be payable to the preparation and review of Purchasers) to such account in the Completion Accounts and StatementUK as the Purchasers may specify in writing to the Seller.
Appears in 1 contract
Completion Accounts. 7.1 4.1 The Buyer shall procure use its reasonable endeavours to ensure that a draft of the Group prepares drafts Completion Accounts is prepared as soon as possible after Completion and delivered to the Seller and the Seller’s Accountants on or before the date falling 60 Business Days after Completion, together with the Buyer’s working papers and the Net Current Asset Statement signed by the Buyer.
4.2 The draft Completion Accounts and the calculation of the Net Current Asset Value set out in the Net Current Asset Statement shall be deemed agreed by the Seller on the date falling 20 Business Days after the date on which those documents are first delivered to the Seller and the Seller’s Accountants and shall (save in the case of fraud or manifest error) be final and binding on the parties for all purposes (and shall respectively constitute the Completion Accounts and the Statement in calculation of the format Net Current Asset Value for the purposes of this Agreement), unless during that period the Seller gives notice to the Buyer that she disagrees with the calculation of the Net Current Asset Value set out in schedule 6 (the “Net Current Asset Statement”), on the basis . Any notice so given shall include reasonable details of the accounting policies reasons for any disagreement and procedures set out in schedule 7 and delivers them to any suggested adjustment, together with reasonable supporting evidence for each adjustment, including any relevant working papers.
4.3 If any notice is so served by the Seller within 75 days of Completion.
7.2 The during such 20 Business Day period, the Buyer and the Seller shall notify the Buyer attempt in writing within 45 days good faith to resolve any matters in dispute and agree a final form of receipt of such draft Completion Accounts and the Statement whether calculation of the Net Current Asset Value on or not it accepts before the draft date falling 10 Business Days after the date on which the Buyer receives the Seller’s notice. Each of the Buyer and the Seller shall to facilitate such agreement cooperate and where relevant, instruct their respective accountants to cooperate with each other. The Completion Accounts and Statement the calculation of the Net Current Asset Value so agreed by them shall (save in the case of fraud or manifest error) be final and binding on the parties for all purposes (and shall respectively constitute the Completion Accounts and the calculation of the Net Current Asset Value for the purposes of this Agreement). In the absence of agreement between the Buyer and the Seller within that time period (as the same may be extended by the written agreement of both parties), the matters in dispute shall be determined by the Independent Accountants and the Independent Accountants shall be instructed to deliver a calculation of the amount of the Net Current Asset Value and revised Completion Accounts adjusted only to take account of the matters determined by them. As so revised, the Completion Accounts and the Net Current Asset Value shall (save in the case of fraud or manifest error) then respectively constitute the Completion Accounts and the calculation of the Net Current Asset Value for the purposes of this Agreement.
7.3 If the Seller notifies the Buyer that it does not accept such draft Completion Accounts and Statement:
(a) it shall, at the same time as it notifies the Buyer that it does not accept such draft Completion Accounts and Statement, set out in such notice in writing its reasons in reasonable detail for such non-acceptance and specify the adjustments which, in its opinion, should be made 4.4 Each party shall promptly provide to the draft Completion Accounts other or the other’s accountants or professional advisers (and the Statement in order to comply with the requirements of this Agreement; and
(b) the parties shall use reasonable endeavours to:
(i) discuss the objections of the Seller; and
(ii) try to reach agreement upon the adjustments (if any) required to be made to the draft Completion Accounts Independent Accountants) all such documents and information as may reasonably be requested for the Statement in each case, within 20 Business Days purpose of the Seller’s notice of non-acceptance pursuant to clause 7.2 (preparing or such other time as the parties may agree in writing).
7.4 If the Seller is satisfied with the draft Completion Accounts and the Statement (either as originally submitted or after adjustments agreed between the Seller and the Buyer) or if the Seller fails to notify the Buyer of its non-acceptance of the draft Completion Accounts and the Statement within the 45 day period referred to in clause 7.2, then the draft Completion Accounts and the Statement (incorporating any agreed adjustments) shall constitute reviewing the Completion Accounts and the Statement for the purposes of this Agreement.
7.5 If the Seller and the Buyer do not reach agreement within the 20 Business Day period referred to in clause 7.3(b) (or such other time as the parties may agree in writing) then the matters in dispute and in respect of which reasonable details have been provided by the Seller to the Buyer at the time that it notified the Buyer that it does not accept the Completion Accounts and the Statement in accordance with clause 7.3(a) (and only those) shall be referred for determination by an expert to be agreed by the Seller and the Buyer, and failing such agreement by the Seller and the Buyer within 10 Business Days following the end of the 20 Business Day period referred to in clause 7.3(b) (or such other time as the Seller and the Buyer may agree in writing), on the application of either the Buyer or the Seller by an expert appointed by the President of the Institute of Chartered Accountants of England and Wales from time to time (the “Firm”). The following provisions shall apply to such determination:
(a) the Buyer and/or the Buyer’s accountants and the Seller and/or the Seller’s accountants shall each promptly (and in any event within such time frame as reasonably enables the Firm to make its decision in accordance with the time frame set down in clause 7.5(b)) prepare and deliver to the Firm a written statement on the matters in dispute (together with the relevant documents);
(b) the Firm shall be requested to give its decision within 20 Business Days (or such later date as the Buyer and the Seller and the Firm agree in writing) of the confirmation and acknowledgment by the Firm of its appointment hereunder;
(c) in giving such determination, the Firm shall state what adjustments (if any) are necessary to the draft Completion Accounts and the Statement in respect of the matters in dispute in order to comply with the requirements of this Agreement and shall give its reasons therefor;
(d) the Firm shall act as an expert (and not as an arbitrator) in making any such determination, and the Completion Accounts and Statement, as adjusted by the Firm shall be deemed to be finally determined and shall be final and binding on the parties (in the absence of manifest error);
(e) each party shall bear the costs and expenses of all counsel and other advisers, witnesses and employees retained by it and the costs and the expenses of the Firm shall be borne between the Seller and the Buyer in such proportions as the Firm shall in its discretion determine or, in the absence of any such determination, equally between the Seller and the Buyer.
7.6 When the Seller and the Buyer reach (or pursuant to clause 7.4 are deemed to reach) agreement on the Completion Accounts and the Statement or when the Completion Accounts and the Statement are finally determined at any stage in accordance with the procedures set out in this clause 7 (including clause 7.5):
(a) the Completion Accounts and the Statement as so agreed or determined shall be the Completion Accounts and the Statement for the purposes of this Agreement and shall be final and binding on the parties; and
(b) the Working Capital Amount, the Debt and the Cash, in each case, shall be as set out in the Statement.
7.7 Subject to any rule of law or any regulatory body or any provision of any contract entered into prior to the date of this Agreement to the contrary, the Seller shall procure that each member of the Seller’s Group shall, and the Buyer shall procure that the Group shall, promptly provide each other, their respective advisers, the Firm, the Buyer’s accountants and the Seller’s accountants with all information (in their respective possession or control) relating to the operations of the Seller’s Group and/or the Group, as the case may be, including access at all reasonable times to all the Seller’s Group and Group employees, books, records, and other relevant information and all co-operation and assistance, as may in any such case be reasonably required to:
(a) enable the production of the Completion Accounts and the Statement; and
(b) enable the Firm to determine the Completion Accounts and the Net Current Asset Statement. The Seller and the Buyer hereby authorise each other, their respective advisers and the Firm to take copies of all information which they have agreed to provide parties’ obligations under this clause 7.7.
7.8 Subject shall, without limitation, extend to clause 7.5(e), providing access to of all working papers in their possession or under their control created in the Seller and the Buyer shall each bear their own costs and expenses arising out course of the preparation and and/or review of the Completion Accounts and/or Net Current Asset Statement, together (in the case of the Buyer) with extracts from the Company’s accounting records to which the working papers relate or from which the working papers have drawn information, and Statementaccess upon reasonable notice and during normal working hours to relevant personnel, and to relevant records and information within the possession or under the control, of the relevant party. Pending determination or agreement of the Net Current Asset Value, the Buyer shall maintain the Company’s books and records of account in the United Kingdom.
Appears in 1 contract
Sources: Agreement for the Sale and Purchase of Shares (Jupitermedia Corp)
Completion Accounts. 7.1 6.1 The Buyer Purchasers shall procure that as soon as practicable after Completion and in any event within 25 Business Days after the Group prepares drafts Completion Date (the "First Period") the preparation of the Completion Accounts and the Statement in the format set out in schedule 6 (the “Statement”), on the basis of the accounting policies and procedures set out in schedule 7 and delivers them to the Seller within 75 days of Completion4.
7.2 6.2 The Seller shall notify the Buyer in writing within 45 days of receipt of such draft Completion Accounts and the Statement whether or not it accepts the draft Completion Accounts and Statement for the purposes of this Agreement.
7.3 If the Seller notifies the Buyer that it does not accept such draft Completion Accounts and Statement:
(a) it shall, at the same time as it notifies the Buyer that it does not accept such draft Completion Accounts and Statement, set out in such notice in writing its reasons in reasonable detail for such non-acceptance and specify the adjustments which, in its opinion, should be made to the draft Completion Accounts and the Statement in order to comply with the requirements of this Agreement; and
(b) the parties shall use reasonable endeavours to:
(i) discuss the objections of the Seller; and
(ii) try to reach agreement upon the adjustments (if any) required to be made to the draft Completion Accounts and the Statement in each case, within 20 Business Days of the Seller’s notice of non-acceptance pursuant to clause 7.2 (or such other time as the parties may agree in writing).
7.4 If the Seller is satisfied with the draft Completion Accounts and the Statement (either as originally submitted or after adjustments agreed between the Seller and the Buyer) or if the Seller fails to notify the Buyer of its non-acceptance of the draft Completion Accounts and the Statement within the 45 day period referred to in clause 7.2, then the draft Completion Accounts and the Statement (incorporating any agreed adjustments) shall constitute Purchasers' Accountants will review the Completion Accounts and the Statement for the purposes within 20 days of this Agreement.
7.5 If the Seller and the Buyer do not reach agreement within the 20 Business Day period referred to in clause 7.3(b) (or such other time as the parties may agree in writing) then the matters in dispute and in respect of which reasonable details have been provided by the Seller to the Buyer at the time that it notified the Buyer that it does not accept the Completion Accounts and the Statement in accordance with clause 7.3(a) (and only those) shall be referred for determination by an expert to be agreed by the Seller and the Buyer, and failing such agreement by the Seller and the Buyer within 10 Business Days following the end of the 20 Business Day period referred to in clause 7.3(bFirst Period ("the Second Period") (or such other time as the Seller and the Buyer may agree in writing), on the application of either the Buyer or the Seller by an expert appointed by the President of the Institute of Chartered Accountants of England and Wales from time to time (the “Firm”). The following provisions shall apply to such determination:
(a) the Buyer and/or the Buyer’s accountants and the Seller and/or the Seller’s accountants shall each promptly (and in any event within such time frame as reasonably enables the Firm to make its decision in accordance with the time frame set down in clause 7.5(b)) prepare and deliver will issue to the Firm Purchasers a written statement on draft report ("the matters in dispute (together with the relevant documents);
(bReport") the Firm shall be requested to give its decision within 20 Business Days (or such later date as the Buyer and the Seller and the Firm agree in writing) of the confirmation and acknowledgment by the Firm of its appointment hereunder;
(c) in giving such determination, the Firm shall state what adjustments (if any) are necessary to the draft Completion Accounts and the Statement in respect of the matters in dispute in order to comply with the requirements of this Agreement and shall give its reasons therefor;
(d) the Firm shall act as an expert (and not as an arbitrator) in making any such determination, and the Completion Accounts and Statement, as adjusted by the Firm shall be deemed to be finally determined and shall be final and binding on the parties (in the absence of manifest error);
(e) each party shall bear the costs and expenses of all counsel and other advisers, witnesses and employees retained by it and the costs and the expenses of the Firm shall be borne between the Seller and the Buyer in such proportions as the Firm shall in its discretion determine or, in the absence of any such determination, equally between the Seller and the Buyer.
7.6 When the Seller and the Buyer reach (or pursuant to clause 7.4 are deemed to reach) agreement on the Completion Accounts and the Statement or when the Completion Accounts and the Statement are finally determined at any stage in accordance with the procedures set out in this clause 7 (including clause 7.5):stating that:
(a) the Completion Accounts have been properly prepared on the basis set out in the agreement;
(b) on the basis of the Completion Accounts, the amount of the Net Asset Value.
6.3 Upon receipt of the Report and the Statement as so agreed or determined shall be the Completion Accounts the Vendor shall review the same and the Statement for Vendor and its agents shall be allowed all reasonable facilities (including the purposes provision of all working papers) to enable them to conduct such review and in particular to satisfy themselves that the Completion Accounts are prepared in accordance with the provisions of this Agreement Clause and Schedule 4 and that they agree the Net Asset Value. If the Vendor shall fail to notify the Purchasers that it does not agree the Net Asset Value as certified within 10 Business Days after the end of the Second Period (the "Third Period") the Vendor shall be deemed to have agreed the Net Asset Value as set out in the Report.
6.4 If the Vendor shall notify the Purchasers that it does not agree the Net Asset Value as set out in the Report the Purchasers and the Vendor shall negotiate in good faith to agree prior to the end of the period being 5 Business Days after the end of the Third Period (the "Fourth Period") the Net Asset Value and if the Purchasers and the Vendor shall fail to agree the Net Asset Value as reported or otherwise on or before the end of the Fourth Period then the matter shall be referred by the Vendor and Purchasers jointly to the Expert.
6.5 The Vendor and the Purchasers shall be entitled to make written representations to the Expert but subject thereto the Expert shall be entitled to determine the procedure to be followed in his determination in so doing:
(a) the Expert shall act as an expert and not as an arbitrator and his decision shall, in the absence of manifest error, be final and binding on the parties; and;
(b) all the Working Capital Amount, costs of the Debt Expert shall be shared equally by the Vendor and the Cash, in each case, shall be as set out in Purchasers unless the Statement.Expert decides otherwise;
7.7 Subject to any rule of law or any regulatory body or any provision of any contract entered into prior to (c) the date of this Agreement to the contrary, the Seller shall procure that each member of the Seller’s Group shall, Vendor and the Buyer Purchasers shall each procure that the Group shallExpert is afforded all facilities and access to personnel, promptly provide each otherpremises, their respective adviserspapers, accounts, records and such other documents as may reasonably be required by him in order to reach his decision;
(d) the Firm, the Buyer’s accountants Vendor and the Seller’s accountants Purchasers (or their professional advisers on their behalf) shall each be entitled to make one submission (or more at the request or with all information the agreement of the Expert) (in their respective possession whether written or controloral or a combination of both) relating to the operations Expert in relation to any item or question referred to him;
(e) the Vendor and the Purchasers shall each use all reasonable endeavours to procure that the Expert issues his determination within 30 Business Days of the Seller’s Group and/or the Group, as the case may be, including access at all reasonable times initial reference to all the Seller’s Group and Group employees, books, records, and other relevant information and all cohim under sub-operation and assistance, as may in any such case be reasonably required to:
clause (a) enable and shall accordingly co-operate with the production of Expert and with each other in agreeing, and complying with, any procedural requirements and any timetable suggested by the Completion Accounts and Expert or the Statementother party; and
6.6 If the Net Asset Value as agreed or determined in accordance with this Clause is less than (b) enable pound)247,000 then the Firm Vendor and Fiberstars forthwith shall instruct the Escrow Agent to determine retain such amount of Escrow Stock equivalent to any shortfall on a (pound)1 to (pound)1 basis from (pound)247,000 in accordance with the Completion Accounts and the Statement. The Seller and the Buyer hereby authorise each other, their respective advisers and the Firm to take copies of all information which they have agreed to provide under this clause 7.7.
7.8 Subject to clause 7.5(e), the Seller and the Buyer shall each bear their own costs and expenses arising out terms of the preparation Escrow Agreement and review of the Completion Accounts and Statementclause 20.
Appears in 1 contract
Sources: Agreement for the Sale and Purchase of the Business and Assets (Fiberstars Inc /Ca/)
Completion Accounts. 7.1 5.1 The Buyer shall procure that Purchaser shall:
(a) cause the Group prepares drafts of Company to prepare the Draft Completion Accounts in accordance with the accounting principles, practices, policies and procedures set out in Part 1 of Schedule 10 and in the format set out in Part 2 of Schedule 10;
(b) by extracting the relevant items from the Draft Completion Accounts, prepare or cause to be prepared the Draft WC Statement in the format set out in schedule 6 (Part 3 of Schedule 10 and the “Statement”), on Draft Net Debt Statement in the basis of the accounting policies and procedures format set out in schedule 7 Part 4 of Schedule 10; and
(c) deliver the Draft Completion Accounts, the Draft WC Statement and delivers them the Draft Net Debt Statement to the Seller within 75 days of CompletionVendor by no later than 40 Business Days following the Completion Date.
7.2 5.2 The Seller Vendor shall notify within the Buyer in writing within 45 days period of receipt 20 Business Days following delivery of such draft the Draft Completion Accounts Accounts, the Draft WC Statement and the Draft Net Debt Statement whether or not to it accepts pursuant to Clause 5.1(c) (the draft Completion Accounts and Statement for the purposes of this Agreement.
7.3 If the Seller notifies the Buyer that it does not accept such draft Completion Accounts and Statement"Initial Agreement Period") either:
(a) it shallconfirm its agreement with the Draft Completion Accounts, at the same time as it notifies the Buyer that it does not accept such draft Completion Accounts and Statement, set out in such notice in writing its reasons in reasonable detail for such non-acceptance and specify the adjustments which, in its opinion, should be made to the draft Completion Accounts Draft WC Statement and the Draft Net Debt Statement in order to comply with the requirements of this Agreementso delivered; andor
(b) the parties shall use reasonable endeavours to:
(i) discuss the objections of the Seller; and
(ii) try to reach agreement upon the adjustments (if any) required to be made give notice in writing to the draft Purchaser that the Vendor disputes the Draft Completion Accounts, the Draft WC Statement and/or the Draft Net Debt Statement (a "Completion Accounts and the Statement in each case, within 20 Business Days of the Seller’s notice of non-acceptance pursuant to clause 7.2 (or such other time as the parties may agree in writingDispute Notice").
7.4 If the Seller is satisfied with the draft 5.3 Any Completion Accounts and the Statement (either as originally submitted or after adjustments agreed between the Seller and the Buyer) or if the Seller fails to notify the Buyer of its non-acceptance of the draft Completion Accounts and the Statement within the 45 day period referred to Dispute Notice shall set out in clause 7.2, then the draft Completion Accounts and the Statement (incorporating any agreed adjustments) shall constitute the Completion Accounts and the Statement for the purposes of this Agreement.
7.5 If the Seller and the Buyer do not reach agreement within the 20 Business Day period referred to in clause 7.3(b) (or such other time as the parties may agree in writing) then the matters in dispute and in respect of which reasonable details have been provided by the Seller to the Buyer at the time that it notified the Buyer that it does not accept the Completion Accounts and the Statement in accordance with clause 7.3(a) (and only those) shall be referred for determination by an expert to be agreed by the Seller and the Buyer, and failing such agreement by the Seller and the Buyer within 10 Business Days following the end of the 20 Business Day period referred to in clause 7.3(b) (or such other time as the Seller and the Buyer may agree in writing), on the application of either the Buyer or the Seller by an expert appointed by the President of the Institute of Chartered Accountants of England and Wales from time to time (the “Firm”). The following provisions shall apply to such determinationdetail:
(a) the Buyer and/or matters which are disputed (the Buyer’s accountants and the Seller and/or the Seller’s accountants shall each promptly (and in any event within such time frame as reasonably enables the Firm to make its decision in accordance with the time frame set down in clause 7.5(b)) prepare and deliver to the Firm a written statement on the matters in dispute (together with the relevant documents"Completion Accounts Disputed Matters");
(b) the Firm shall be requested to give its decision within 20 Business Days (or reasons why such later date as the Buyer and the Seller and the Firm agree in writing) of the confirmation and acknowledgment by the Firm of its appointment hereunder;matters are disputed; and
(c) in giving such determinationto the extent the Vendor is reasonably able to do so, the Firm shall state what resulting adjustments (if any) are necessary which, in the opinion of the Vendor, should be made to the draft Draft Completion Accounts, the Draft WC Statement and/or the Draft Net Debt Statement. A Completion Accounts and Dispute Notice shall only be valid for the Statement in respect of the matters in dispute in order to comply with the requirements purposes of this Agreement if it is served prior to the expiry of the Initial Agreement Period and shall give its reasons therefor;
(d) includes the Firm shall act as an expert (and not as an arbitrator) information required by this Clause 5.3. Except for matters specifically set out in making any such determination, and the a valid Completion Accounts and StatementDispute Notice served prior to the expiry of the Initial Agreement Period, as adjusted by the Firm Vendor shall be deemed to be finally determined and shall be final and binding on have agreed in full with the parties (in Draft Completion Accounts, the absence of manifest error);
(e) each party shall bear the costs and expenses of all counsel and other advisers, witnesses and employees retained by it Draft WC Statement and the costs and the expenses of the Firm shall be borne between the Seller and the Buyer in such proportions as the Firm shall in its discretion determine or, in the absence of any such determination, equally between the Seller and the BuyerDraft Net Debt Statement.
7.6 When 5.4 If the Seller and the Buyer reach (or pursuant to clause 7.4 are deemed to reach) agreement on the Completion Accounts and the Statement or when the Completion Accounts and the Statement are finally determined at any stage in accordance with the procedures set out in this clause 7 (including clause 7.5):Vendor:
(a) does not serve a valid Completion Accounts Dispute Notice prior to the expiry of the Initial Agreement Period; or
(b) during the Initial Agreement Period confirms by notice in writing its agreement with the Draft Completion Accounts, the Draft WC Statement and the Draft Net Debt Statement (either as delivered in accordance with Clause 5.1 or as modified in such manner as shall be agreed between the Purchaser and the Vendor), the Draft Completion Accounts, the Draft WC Statement and the Draft Net Debt Statement shall constitute the Completion Accounts Accounts, the WC Statement and the Statement as so agreed or determined shall be the Completion Accounts and the Net Debt Statement for the purposes of this Agreement and shall be final and binding on the partiesPurchaser and the Vendor.
5.5 If the Vendor does serve a valid Completion Accounts Dispute Notice prior to the expiry of the Initial Agreement Period, then the Vendor and the Purchaser shall meet and discuss the Completion Accounts Disputed Matters and (acting in good faith) shall use their respective reasonable endeavours (in conjunction with their respective accountants) to reach agreement on the Completion Accounts Disputed Matters as soon as reasonably practicable and in any event within the period of 20 Business Days following the date of service of the Completion Accounts Dispute Notice (or such longer period as may be agreed in writing between the Vendor and the Purchaser) (the "Completion Accounts Dispute Resolution Period") and either:
(a) if the Purchaser and the Vendor reach agreement on the Completion Accounts Disputed Matters during the Completion Accounts Dispute Resolution Period, the Draft Completion Accounts, the Draft WC Statement and the Draft Net Debt Statement shall be modified to reflect such agreement and, as so modified, shall constitute the Completion Accounts, the WC Statement and the Net Debt Statement for the purposes of this Agreement and shall be final and binding on the Vendor and the Purchaser; andor
(b) if the Purchaser and the Vendor do not reach agreement on the Completion Accounts Disputed Matters prior to the expiry of the Completion Accounts Dispute Resolution Period, then either the Purchaser or the Vendor may refer the Completion Accounts Disputed Matters to an Independent Firm in accordance with Clause 8.
5.6 The Purchaser and the Vendor shall bear their own respective costs incurred in connection with the preparation, review and finalisation of the Draft Completion Accounts, the Draft WC Statement, the Draft Net Debt Statement, the Completion Accounts, the WC Statement and the Net Debt Statement and the agreement or determination of the Working Capital AmountValue and the Net Debt (including any costs incurred in connection with any reference to an Independent Firm pursuant to Clause 5.5).
5.7 The Vendor and the Purchaser shall provide to each other access, on reasonable notice during Business Hours and subject to reasonable monitoring or supervision, to such documents and information as are in their possession or under their control (other than the working papers of any of their professional advisers) and to relevant personnel, as may in any case reasonably be requested for the purpose of preparing or reviewing the Draft Completion Accounts, the Draft WC Statement, the Draft Net Debt Statement, the Completion Accounts, the WC Statement and the Cash, in each case, shall be as set out in the Statement.
7.7 Subject to Net Debt Statement and any rule of law or any regulatory body or any provision of any contract entered into prior to the date of this Agreement to the contrary, the Seller shall procure that each member of the Seller’s Group shall, and the Buyer shall procure that the Group shall, promptly provide each other, their respective advisers, the Firm, the Buyer’s accountants and the Seller’s accountants with all information (in their respective possession or control) relating to the operations of the Seller’s Group and/or the Group, Completion Accounts Dispute Notice as the case may be, including provided that nothing shall require any party to disclose or provide access at all reasonable times to all the Seller’s Group and Group employees, books, records, and any documents or information which are legally privileged or which that party is required by law or other relevant information and all co-operation and assistance, as may in any such case be reasonably required to:
(a) enable the production of the Completion Accounts and the Statement; and
(b) enable the Firm legally binding obligation to determine the Completion Accounts and the Statementkeep confidential. The Seller and the Buyer hereby authorise each otherinspecting party shall be entitled, their respective advisers and the Firm at its own cost to take copies of all such documents and information which they have agreed that it is entitled to provide inspect under this clause 7.7Clause 5.7.
7.8 Subject to clause 7.5(e), the Seller and the Buyer shall each bear their own costs and expenses arising out of the preparation and review of the Completion Accounts and Statement.
Appears in 1 contract
Completion Accounts. 7.1 The (a) As soon as practicable following the Closing, and in any event no later than sixty (60) days after the Closing Date, Buyer shall procure that the Group prepares drafts prepare and deliver to Seller a balance sheet of the Target Companies as of 12:01 a.m. Hong Kong time on the Closing Date, together with Buyer’s calculations of the Actual Net Debt Amount, the Actual Working Capital Amount and the Actual Working Capital Adjustment Amount, in each case, which shall be prepared and calculated in accordance with the practices, principles and methodologies set forth in Schedule 2.08 of the Disclosure Schedule, and otherwise in accordance with GAAP consistently applied in accordance with the Target Companies’ past practice (such deliverable, the “Completion Accounts”).
(b) Upon delivery of the Completion Accounts, Buyer must ensure that all information and assistance requested by Seller is given to Seller to review Buyer’s draft Completion Accounts and must permit representatives of Seller to have reasonable access to management of and the Target Companies to review Buyer’s draft of the Completion Accounts, and take extracts from, or make copies of, the Records for the sole purposes of reviewing Buyer’s draft Completion Accounts.
(c) If Seller does not dispute the draft Completion Accounts within twenty (20) Business Days after the date on which Seller receives Buyer’s draft Completion Accounts pursuant to Section 2.08(a) (the “Final Objection Date”), Buyer’s draft Completion Accounts will be deemed to be the final Completion Accounts and the Statement in Actual Net Debt Amount, the format set out in schedule 6 (the “Statement”), on the basis of the accounting policies and procedures set out in schedule 7 and delivers them to the Seller within 75 days of Completion.
7.2 The Seller shall notify the Buyer in writing within 45 days of receipt of such draft Completion Accounts Actual Working Capital Amount and the Statement whether or not it accepts the draft Completion Accounts and Statement for the purposes of this Agreement.
7.3 If the Seller notifies the Buyer that it does not accept such draft Completion Accounts and Statement:
(a) it shall, at the same time as it notifies the Buyer that it does not accept such draft Completion Accounts and Statement, Actual Working Capital Adjustment Amount set out in such notice in writing its reasons in reasonable detail for such non-acceptance and specify the adjustments which, in its opinion, should be made to the draft Completion Accounts and the Statement in order to comply with the requirements of this Agreement; and
(b) the parties shall use reasonable endeavours to:
(i) discuss the objections of the Seller; and
(ii) try to reach agreement upon the adjustments (if any) required to be made to the draft Completion Accounts and the Statement in each case, within 20 Business Days of the Seller’s notice of non-acceptance pursuant to clause 7.2 (or such other time as the parties may agree in writing).
7.4 If the Seller is satisfied with the draft Completion Accounts and the Statement (either as originally submitted or after adjustments agreed between the Seller and the Buyer) or if the Seller fails to notify the Buyer of its non-acceptance of the draft Completion Accounts and the Statement within the 45 day period referred to in clause 7.2, then the draft Completion Accounts and the Statement (incorporating any agreed adjustments) shall constitute the Completion Accounts and the Statement for the purposes of this Agreement.
7.5 If the Seller and the Buyer do not reach agreement within the 20 Business Day period referred to in clause 7.3(b) (or such other time as the parties may agree in writing) then the matters in dispute and in respect of which reasonable details have been provided by the Seller to the Buyer at the time that it notified the Buyer that it does not accept the Completion Accounts and the Statement in accordance with clause 7.3(a) (and only those) shall be referred for determination by an expert to be agreed by the Seller and the Buyer, and failing such agreement by the Seller and the Buyer within 10 Business Days following the end of the 20 Business Day period referred to in clause 7.3(b) (or such other time as the Seller and the Buyer may agree in writing), on the application of either the Buyer or the Seller by an expert appointed by the President of the Institute of Chartered Accountants of England and Wales from time to time (the “Firm”). The following provisions shall apply to such determination:
(a) the Buyer and/or the Buyer’s accountants and the Seller and/or the Seller’s accountants shall each promptly (and in any event within such time frame as reasonably enables the Firm to make its decision in accordance with the time frame set down in clause 7.5(b)) prepare and deliver to the Firm a written statement on the matters in dispute (together with the relevant documents);
(b) the Firm shall be requested to give its decision within 20 Business Days (or such later date as the Buyer and the Seller and the Firm agree in writing) of the confirmation and acknowledgment by the Firm of its appointment hereunder;
(c) in giving such determination, the Firm shall state what adjustments (if any) are necessary to the draft Completion Accounts and the Statement in respect of the matters in dispute in order to comply with the requirements of this Agreement and shall give its reasons therefor;
(d) the Firm shall act as an expert (and not as an arbitrator) in making any such determination, and the Completion Accounts and Statement, as adjusted by the Firm shall be deemed to be finally determined and shall be final and binding on the parties (in the absence of manifest error);
(e) each party shall bear the costs and expenses of all counsel and other advisers, witnesses and employees retained by it and the costs and the expenses of the Firm shall be borne between the Seller and the Buyer in such proportions as the Firm shall in its discretion determine or, in the absence of any such determination, equally between the Seller and the Buyer.
7.6 When the Seller and the Buyer reach (or pursuant to clause 7.4 are deemed to reach) agreement on the Completion Accounts and the Statement or when the Completion Accounts and the Statement are finally determined at any stage in accordance with the procedures set out in this clause 7 (including clause 7.5):
(a) the Completion Accounts and the Statement as so agreed or determined shall be the Completion Accounts and the Statement for the purposes of this Agreement and shall forth therein will be final and binding on the parties; and.
(bd) the Working Capital Amount, the Debt and the Cash, in each case, shall be as set out in the Statement.
7.7 Subject If Seller provides Buyer with written notice of dispute with respect to any rule aspect of law or any regulatory body or any provision of any contract entered into Buyer’s draft Completion Accounts prior to the date of this Agreement to the contraryFinal Objection Date (a “Dispute Notice”), setting forth in reasonable detail each item so disputed (all such items, the Seller shall procure that each member of the Seller’s Group shall“Disputed Matters”), then such Disputed Matters will be resolved in accordance with Section 2.09 and the Buyer shall procure that undisputed items will be final and binding on the Group shall, promptly provide each other, their respective advisers, the Firm, the Buyer’s accountants and the Seller’s accountants with all information (in their respective possession or control) relating to the operations of the Seller’s Group and/or the Group, as the case may be, including access at all reasonable times to all the Seller’s Group and Group employees, books, records, and other relevant information and all co-operation and assistance, as may in any such case be reasonably required to:
(a) enable the production of the Completion Accounts and the Statement; and
(b) enable the Firm to determine the Completion Accounts and the Statement. The Seller and the Buyer hereby authorise each other, their respective advisers and the Firm to take copies of all information which they have agreed to provide under this clause 7.7Parties.
7.8 Subject to clause 7.5(e), the Seller and the Buyer shall each bear their own costs and expenses arising out of the preparation and review of the Completion Accounts and Statement.
Appears in 1 contract
Sources: Equity Interest Purchase Agreement (Advanced Micro Devices Inc)
Completion Accounts. 7.1 4.1 The Buyer shall procure that will, within 60 calendar days, prepare and deliver to the Group prepares Seller drafts of the Completion Accounts and the Statement in the format set out in schedule 6 (the “Statement”), Accounts.
4.2 The Seller may serve a written notice on the basis of the accounting policies and procedures set out in schedule 7 and delivers them Buyer stating that it objects or does not object to the Seller within 75 days of Completion.
7.2 The Seller shall notify the Buyer in writing within 45 days of receipt of such draft Completion Accounts and the Statement whether or not it accepts within a period of 30 calendar days following receipt of the draft Completion Accounts and Statement if it serves a notice not objecting to the draft Completion Accounts then such drafts shall then be the agreed Completion Accounts for the purposes of this Agreement. Any notice objecting to the draft Completion Accounts shall include the items and amounts in dispute as well as reasons (in reasonable detail) and any relevant supporting documentation in relation to the dispute.
4.3 If the Seller does not notify the Buyer within 30 calendar days from receipt of the draft Completion Accounts that it objects to those draft Completion Accounts then it shall be deemed to have agreed with them and the draft Completion Accounts shall then be the agreed Completion Accounts for the purposes of this Agreement.
7.3 4.4 If the Buyer does not deliver to the Seller the draft Completion Accounts within 60 calendar days after Completion then the Seller may prepare such draft Completion Accounts and the provisions of this Clause shall thereafter apply with the roles of the Buyer and the Seller reversed.
4.5 If within 30 calendar days of receipt of the draft Completion Accounts the Seller notifies the Buyer that it does not accept such objects to the draft Completion Accounts Accounts, then either the Seller or the Buyer may require by notice in writing that the objection is referred to the Independent Accountant for determination.
4.6 Each of the Seller and Statementthe Buyer will provide (and the Buyer shall procure that the Company shall provide) to each of the Buyer, the Seller, their respective accountants (if any) and the Independent Accountant:
(a) it shallaccess to all accounts, at books, documents, records and papers relating to the same time Company as it notifies may be in their possession or under their control (but excluding such records which are subject to legal privilege or which relate to a party’s consideration of whether the Buyer that it does not accept such draft Completion Accounts and Statement, set out in such notice in writing its reasons in reasonable detail for such non-acceptance and specify the adjustments which, in its opinion, should be made to the draft Completion Accounts and the Statement in order to comply with the requirements of SCHEDULE 12);
(b) access to such personnel (including in the case of the Seller, the auditors and other professional advisers engaged by the Company prior to Completion) and premises; and
(c) acting in good faith, all such co-operation and assistance; as may reasonably be required to produce the Completion Accounts and resolve any dispute in relation to the same.
4.7 If the Net Asset Value of the Company (as set out in the Completion Accounts) is less than the Estimated NAV, then the Seller will pay to the Buyer, as a reduction in the Purchase Price, £1 for every £1 of such difference, such amount to be paid within twenty (20) calendar days after the date of agreement or determination of the Completion Accounts.
4.8 If the Net Asset Value of the Company (as set out in the Completion Accounts) is more than the Estimated NAV, then the Buyer will pay to the Seller, as an increase in the Purchase Price, £1 for every £1 of such difference, such amount to be paid within twenty (20) calendar days after the date of agreement or determination of the Completion Accounts.
4.9 Where the difference between the Estimated NAV and the Net Asset Value of the Company is such that the increase or decrease in the Purchase Price pursuant to clauses 4.7 or 4.8 (as appropriate) would (but for this Agreementclause 4.9) be an amount of £10,000 or less, then such difference shall be deemed to be zero and there shall be no adjustment to the Purchase Price pursuant to those clauses.
4.10 Where the actual amount of the Seller Intercompany Loan is higher than the amount of the Seller Intercompany Loan in the Estimated NAV:
(a) the amount that the Seller owes to the Buyer due to the decrease in Net Asset Value of the Company shall be set off in the Completion Accounts against the additional amount that the Company owes to the Seller under the Seller Intercompany Loan; and
(b) the parties Buyer shall use reasonable endeavours to:
(i) discuss pay to the objections Company as an additional advance under the Buyer Completion Loan the amount by which the actual amount of the Seller; and
(ii) try to reach agreement upon Seller Intercompany Loan is higher than the adjustments (if any) required to be made to the draft Completion Accounts and the Statement in each case, within 20 Business Days amount of the Seller’s notice of non-acceptance pursuant to clause 7.2 (or such other time as Seller Intercompany Loan in the parties may agree in writing)Estimated NAV.
7.4 If 4.11 Where the amount of the Seller Intercompany Loan in the Estimated NAV is satisfied with higher than the draft Completion Accounts and the Statement (either as originally submitted or after adjustments agreed between actual amount of the Seller and the Buyer) or if the Seller fails to notify the Buyer of its non-acceptance of the draft Completion Accounts and the Statement within the 45 day period referred to in clause 7.2, then the draft Completion Accounts and the Statement (incorporating any agreed adjustments) shall constitute the Completion Accounts and the Statement for the purposes of this Agreement.
7.5 If the Seller and the Buyer do not reach agreement within the 20 Business Day period referred to in clause 7.3(b) (or such other time as the parties may agree in writing) then the matters in dispute and in respect of which reasonable details have been provided by the Seller to the Buyer at the time that it notified the Buyer that it does not accept the Completion Accounts and the Statement in accordance with clause 7.3(a) (and only those) shall be referred for determination by an expert to be agreed by the Seller and the Buyer, and failing such agreement by the Seller and the Buyer within 10 Business Days following the end of the 20 Business Day period referred to in clause 7.3(b) (or such other time as the Seller and the Buyer may agree in writing), on the application of either the Buyer or the Seller by an expert appointed by the President of the Institute of Chartered Accountants of England and Wales from time to time (the “Firm”). The following provisions shall apply to such determination:Intercompany Loan,
(a) the amount that the Buyer and/or the Buyer’s accountants and owes to the Seller and/or the Seller’s accountants shall each promptly (and in any event within such time frame as reasonably enables the Firm to make its decision in accordance with the time frame set down in clause 7.5(b)) prepare and deliver due to the Firm a written statement on increase in Net Asset Value of the matters in dispute (together with the relevant documents);
(b) the Firm Company shall be requested to give its decision within 20 Business Days (or such later date as the Buyer and the Seller and the Firm agree set off in writing) of the confirmation and acknowledgment by the Firm of its appointment hereunder;
(c) in giving such determination, the Firm shall state what adjustments (if any) are necessary to the draft Completion Accounts and the Statement in respect of the matters in dispute in order to comply with the requirements of this Agreement and shall give its reasons therefor;
(d) the Firm shall act as an expert (and not as an arbitrator) in making any such determination, and the Completion Accounts and Statement, as adjusted by against the Firm shall be deemed to be finally determined and shall be final and binding on the parties (in the absence of manifest error);
(e) each party shall bear the costs and expenses of all counsel and other advisers, witnesses and employees retained by it and the costs and the expenses of the Firm shall be borne between additional amount that the Seller and owes to the Buyer in such proportions as the Firm shall in its discretion determine or, in the absence of any such determination, equally between Company under the Seller and the Buyer.
7.6 When the Seller and the Buyer reach (or pursuant to clause 7.4 are deemed to reach) agreement on the Completion Accounts and the Statement or when the Completion Accounts and the Statement are finally determined at any stage in accordance with the procedures set out in this clause 7 (including clause 7.5):
(a) the Completion Accounts and the Statement as so agreed or determined shall be the Completion Accounts and the Statement for the purposes of this Agreement and shall be final and binding on the partiesIntercompany Loan; and
(b) the Working Capital Amount, the Debt and the Cash, in each case, Company shall be as set out deemed to have repaid the amount by which the Seller Intercompany Loan in the Statement.
7.7 Subject to any rule Estimated NAV exceeds the actual amount of law or any regulatory body or any provision of any contract entered into prior the Seller Intercompany Loan to the date of this Agreement to the contrary, the Seller shall procure that each member of the Seller’s Group shall, and Buyer under the Buyer shall procure that the Group shall, promptly provide each other, their respective advisers, the Firm, the Buyer’s accountants and the Seller’s accountants with all information (in their respective possession or control) relating to the operations of the Seller’s Group and/or the Group, as the case may be, including access at all reasonable times to all the Seller’s Group and Group employees, books, records, and other relevant information and all co-operation and assistance, as may in any such case be reasonably required to:
(a) enable the production of the Completion Accounts and the Statement; and
(b) enable the Firm to determine the Completion Accounts and the Statement. The Seller and the Buyer hereby authorise each other, their respective advisers and the Firm to take copies of all information which they have agreed to provide under this clause 7.7Loan.
7.8 Subject to clause 7.5(e), the Seller and the Buyer shall each bear their own costs and expenses arising out of the preparation and review of the Completion Accounts and Statement.
Appears in 1 contract
Sources: Share Purchase Agreement (NorthStar Realty Europe Corp.)
Completion Accounts. 7.1 6.1 The Buyer Vendors shall procure that the Group prepares drafts Vendors' Representatives shall:
(a) prepare a draft of the Completion Accounts in accordance with the accounting principles, practices, policies and procedures set out or referred to in Part 1 of Schedule 10 and in the format set out in Part 2 of Schedule 10;
(b) by extracting the relevant items from the Draft Completion Accounts, prepare or cause to be prepared a draft of the Net Assets Statement in the format set out in schedule 6 (the “Statement”), on the basis Part 3 of Schedule 10 and a draft of the accounting policies and procedures Variance Statement in the format set out in schedule 7 Part 4 of Schedule 10; and
(c) deliver the Draft Completion Accounts, the Draft Net Assets Statement and delivers them the Draft Variance Statement to the Seller within 75 days of CompletionPurchaser as soon as reasonably practicable following Completion and in any event by no later than 30 Business Days following the Completion Date.
7.2 The Seller shall notify 6.2 Within 5 Business Days of the Buyer in writing within 45 days of receipt of such draft date on which the Draft Completion Accounts are delivered to the Purchaser pursuant to Clause 6.1(c), the Purchaser shall pay to the Warrantors the Option Exercise Proceeds in full (without any set-off, counterclaim or the like) by electronic funds transfer to the Nominated Account. The Option Exercise Proceeds shall be apportioned equally between the Warrantors.
6.3 The Purchaser shall within the period of 60 Business Days following delivery of the Draft Completion Accounts, the Draft Net Assets Statement and the Draft Variance Statement whether or not to it accepts pursuant to Clause 6.1(c) (the draft Completion Accounts and Statement for the purposes of this Agreement.
7.3 If the Seller notifies the Buyer that it does not accept such draft Completion Accounts and Statement"Initial Agreement Period") either:
(a) it shallconfirm its agreement with the Draft Completion Accounts, at the same time as it notifies the Buyer that it does not accept such draft Completion Accounts and Statement, set out in such notice in writing its reasons in reasonable detail for such non-acceptance and specify the adjustments which, in its opinion, should be made to the draft Completion Accounts Draft Net Assets Statement and the Draft Variance Statement in order to comply with the requirements of this Agreementso delivered; andor
(b) the parties shall use reasonable endeavours to:
(i) discuss the objections of the Seller; and
(ii) try to reach agreement upon the adjustments (if any) required to be made give notice in writing to the draft Vendors' Representatives that the Purchaser disputes the Draft Completion Accounts Accounts, the Draft Net Assets Statement and the Draft Variance Statement in each case, within 20 Business Days of the Seller’s notice of non-acceptance pursuant to clause 7.2 (or such other time as the parties may agree in writinga "Dispute Notice").
7.4 If the Seller is satisfied with the draft Completion Accounts and the Statement (either as originally submitted or after adjustments agreed between the Seller and the Buyer) or if the Seller fails to notify the Buyer of its non-acceptance of the draft Completion Accounts and the Statement within the 45 day period referred to 6.4 Any Dispute Notice shall set out in clause 7.2, then the draft Completion Accounts and the Statement (incorporating any agreed adjustments) shall constitute the Completion Accounts and the Statement for the purposes of this Agreement.
7.5 If the Seller and the Buyer do not reach agreement within the 20 Business Day period referred to in clause 7.3(b) (or such other time as the parties may agree in writing) then the matters in dispute and in respect of which reasonable details have been provided by the Seller to the Buyer at the time that it notified the Buyer that it does not accept the Completion Accounts and the Statement in accordance with clause 7.3(a) (and only those) shall be referred for determination by an expert to be agreed by the Seller and the Buyer, and failing such agreement by the Seller and the Buyer within 10 Business Days following the end of the 20 Business Day period referred to in clause 7.3(b) (or such other time as the Seller and the Buyer may agree in writing), on the application of either the Buyer or the Seller by an expert appointed by the President of the Institute of Chartered Accountants of England and Wales from time to time (the “Firm”). The following provisions shall apply to such determinationdetail:
(a) the Buyer and/or matters which are disputed (the Buyer’s accountants and the Seller and/or the Seller’s accountants shall each promptly (and in any event within such time frame as reasonably enables the Firm to make its decision in accordance with the time frame set down in clause 7.5(b)) prepare and deliver to the Firm a written statement on the matters in dispute (together with the relevant documents"Disputed Matters");
(b) the Firm shall be requested to give its decision within 20 Business Days (or reasons why such later date as the Buyer and the Seller and the Firm agree in writing) of the confirmation and acknowledgment by the Firm of its appointment hereunder;matters are disputed; and
(c) the resulting adjustments which, in giving such determinationthe opinion of the Purchaser, should be made to the Draft Completion Accounts, the Firm shall state what adjustments (if any) are necessary to the draft Completion Accounts Draft Net Assets Statement and the Statement in respect of Draft Variance Statement. A Dispute Notice shall only be valid for the matters in dispute in order to comply with the requirements purposes of this Agreement and shall give its reasons therefor;
(d) if it is served prior to the Firm shall act as an expert (and not as an arbitrator) expiry of the Initial Agreement Period. Except for matters specifically set out in making any such determinationa Dispute Notice served prior to the expiry of the Initial Agreement Period, and the Completion Accounts and Statement, as adjusted by the Firm parties shall be deemed to be finally determined and shall be final and binding on have agreed in full with the parties (in Draft Completion Accounts, the absence of manifest error);
(e) each party shall bear the costs and expenses of all counsel and other advisers, witnesses and employees retained by it Draft Net Assets Statement and the costs and the expenses of the Firm shall be borne between the Seller and the Buyer in such proportions as the Firm shall in its discretion determine or, in the absence of any such determination, equally between the Seller and the BuyerDraft Variance Statement.
7.6 When 6.5 If the Seller and the Buyer reach (or pursuant to clause 7.4 are deemed to reach) agreement on the Completion Accounts and the Statement or when the Completion Accounts and the Statement are finally determined at any stage in accordance with the procedures set out in this clause 7 (including clause 7.5):Purchaser:
(a) does not serve a Dispute Notice prior to the expiry of the Initial Agreement Period; or
(b) during the Initial Agreement Period confirms by notice in writing its agreement with the Draft Completion Accounts, the Draft Net Assets Statement and the Draft Variance Statement (either as delivered in accordance with Clause 6.1 or as modified in such manner as shall be agreed between the Purchaser and the Vendors' Representatives), the Draft Completion Accounts, the Draft Net Assets Statement and the Draft Variance Statement shall constitute the Completion Accounts Accounts, the Net Assets Statement and the Statement as so agreed or determined shall be the Completion Accounts and the Variance Statement for the purposes of this Agreement and shall be final and binding on the partiesPurchaser, the Vendors' Representatives and the Vendors.
6.6 If the Purchaser does serve a valid Dispute Notice prior to the expiry of the Initial Agreement Period, then the Vendors' Representatives and the Purchaser shall meet and discuss the Disputed Matters and (acting in good faith) shall use their respective reasonable endeavours (in conjunction with their respective accountants) to reach agreement on the Disputed Matters as soon as reasonably practicable and in any event within the period of 20 Business Days following the date of service of the Dispute Notice (or such longer period as may be agreed in writing between the Vendors' Representatives and the Purchaser) (the "Dispute Resolution Period") and either:
(a) if the Purchaser and the Vendors' Representatives reach agreement on the Disputed Matters during the Dispute Resolution Period, the Draft Completion Accounts, the Draft Net Assets Statement and the Draft Variance Statement shall be modified to reflect such agreement and, as so modified, shall constitute the Completion Accounts, the Net Assets Statement and the Variance Statement for the purposes of this Agreement and shall be final and binding on the Purchaser, the Vendors' Representatives and the Vendors; andor
(b) if the Purchaser and the Vendors' Representatives do not reach agreement on the Disputed Matters prior to the expiry of the Dispute Resolution Period, then either the Purchaser or the Vendors' Representatives may refer the Disputed Matters to such independent firm of chartered accountants of international standing (the "Independent Firm") as may be agreed between the Purchaser and the Vendors' Representatives or, in default of such agreement within 10 Business Days following the expiry of the Dispute Resolution Period, as may (on the application of either the Purchaser or the Vendors' Representatives) be nominated by the President for the time being of the Institute of Chartered Accountants in England and Wales.
6.7 Where a reference is made to an Independent Firm pursuant to Clause 6.6, the Purchaser and the Vendors' Representatives (acting in good faith) shall use their respective reasonable endeavours to agree with the Independent Firm as soon as reasonably practicable following its acceptance of such reference the Independent Firm's detailed terms of reference and the procedures which are to apply in relation to the hearing, consideration and determination by the Independent Firm of the Disputed Matters. The following general terms of reference and procedures shall apply in any event:
(a) the Independent Firm shall be instructed to make a determination only in relation to the Disputed Matters specified in the Dispute Notice and to make such determination in accordance with the accounting principles, practices, policies and procedures set out or referred to in Part 1 of Schedule 10;
(b) the Working Capital AmountVendors' Representatives and the Purchaser shall each prepare a written submission to the Independent Firm on the Disputed Matters specified in the Dispute Notice and shall deliver copies of their respective submissions to the Independent Firm and to each other within 20 Business Days following the acceptance by the Independent Firm of the reference to it;
(c) following delivery of their respective submissions pursuant to paragraph (b), the Debt Vendors' Representatives and the CashPurchaser shall each have the opportunity to comment once only on the other party's submission. Any such comments shall be in writing and shall be delivered to the Independent Firm and copied to the other party not later than 10 Business Days following the expiry of the 20 Business Day period referred to in paragraph (b);
(d) any information provided by either the Vendors' Representatives or the Purchaser in response to a subsequent request or enquiry by the Independent Firm shall be copied to the other party at the same time as it is delivered to the Independent Firm and, unless otherwise directed by the Independent Firm, such other party shall have the opportunity to comment once only on that information. Any such comments shall be in writing and shall be delivered to the Independent Firm and copied to the party who provided the information not later than 10 Business Days after receipt of such information by the commenting party. Thereafter, neither the Purchaser nor the Vendors' Representatives shall be entitled to make further statements or submissions except insofar as the Independent Firm so requests (in which case it shall, on each occasion, give the other party 10 Business Days to comment on any statement or submission so made);
(e) in addition to (or in place of) the procedures set out above, the Independent Firm may, in each caseits reasonable discretion, stipulate other (or alternative) procedures which are to apply in relation to the hearing, consideration and determination by it of the Disputed Matters (which may include inviting the Vendors' Representatives and the Purchaser to make oral submissions);
(f) the Independent Firm shall be requested to make its determination in relation to the Disputed Matters and to notify the same to the Purchaser and the Vendors' Representatives as soon as reasonably practicable and in any event within 60 Business Days after its acceptance of the reference to it (or such longer period as the Independent Firm may reasonably determine). In making its determination, the Independent Firm shall state what adjustments (if any) are necessary to the Draft Completion Accounts, the Draft Net Assets Statement and the Draft Variance Statement to determine finally the Net Assets, the Revenue Variance and the EBITDA Variance and shall give its reasons therefor;
(g) in making its determination, the Independent Firm shall act as an expert and not as an arbitrator and the determination of the Independent Firm shall, in the absence of fraud or manifest error, be final and binding on the Purchaser, the Vendors' Representatives and the Vendors;
(h) following the notification of the Independent Firm's determination to the Purchaser and the Vendors' Representatives, the Draft Completion Accounts, the Draft Net Assets Statement and the Draft Variance Statement shall be amended as necessary to reflect the decision of the Independent Firm in relation to the Disputed Matters and, as so amended, shall constitute the Completion Accounts, the Net Assets Statement and the Variance Statement and shall be as set out final and binding on the Purchaser, the Vendors' Representatives and the Vendors;
(i) the fees and expenses of the Independent Firm shall be borne by the Purchaser and the Vendors in the Statementproportions it directs (and the Independent Firm shall be instructed to make such costs direction having regard in particular to all submissions of the parties compared to the determination) or, in the absence of any such direction, equally between the Purchaser on the one hand and the Vendors on the other; and
(j) the Purchaser and the Vendors shall provide or (so far as lies within their respective power) procure others to provide to the Independent Firm all such information and documentation as the Independent Firm shall reasonably require to assist it in reaching its determination.
7.7 Subject 6.8 The Purchaser, the Vendors' Representatives and the Vendors shall bear their own respective costs incurred in connection with the preparation, review and finalisation of the Draft Completion Accounts, the Draft Net Assets Statement, the Draft Variance Statement, the Completion Accounts, the Net Assets Statement and the Variance Statement and the agreement or determination of the Net Assets, the Revenue Variance and the EBITDA Variance (including any costs incurred in connection with any reference to any rule of law an Independent Firm pursuant to Clause 6.6, subject to Clause 6.7(i)).
6.9 The Purchaser and the Vendors shall provide or any regulatory body or any procure the provision of any contract entered into prior to the date other of this Agreement to the contrary, the Seller shall procure that each member of the Seller’s Group shall, such information and the Buyer shall procure that the Group shall, promptly provide each other, their respective advisers, the Firm, the Buyer’s accountants and the Seller’s accountants with all information (documentation in or under their respective possession or control) relating to the operations of the Seller’s Group and/or the Group, as the case may be, control (including access at all reasonable times to all the Seller’s Group and Group employeespersonnel, books, recordsrecords and working papers) as the other may reasonably request in connection with the preparation, review and other relevant information finalisation of the Draft Completion Accounts, the Draft Net Assets Statement, the Draft Variance Statement, the Completion Accounts, the Net Assets Statement and all co-operation the Variance Statement.
6.10 Within 10 Business Days of the finalisation of the Completion Accounts, the Net Assets Statement and assistance, as may the Variance Statement in any such case be reasonably required toaccordance with this Clause 6:
(a) enable if the production Net Assets exceed £1,994,000, the Purchaser shall pay to the Vendors the amount of the Completion Accounts and the Statement; andsuch excess;
(b) enable if the Firm Net Assets are less than £1,794,000 the Vendors shall owe to determine the Completion Accounts Purchaser the amount of such deficit, which shall be satisfied by way of set-off and deduction from the StatementEarn Out Payments in their Relevant Proportions.
6.11 Any payment due under Clause 6.10(a) shall be satisfied by electronic funds transfer in immediately available funds to the Nominated Account and shall thereafter be apportioned among the Vendors in their Relevant Proportions.
6.12 If any sum due for payment under this Agreement is not paid on the due date, the party in default shall pay interest thereon at the Default Rate for the period from (and including) the due date for payment to (but excluding) the date of actual payment. The Seller Purchaser hereby acknowledges and agrees that this Clause 6.12 shall not apply to any payment due to the Buyer hereby authorise each other, their respective advisers Purchaser by way of set-off and deduction from the Firm Earn-Out Payments pursuant to take copies of all information which they have agreed to provide under this clause 7.7Clause 6.10(b).
7.8 Subject to clause 7.5(e), the Seller and the Buyer shall each bear their own costs and expenses arising out of the preparation and review of the Completion Accounts and Statement.
Appears in 1 contract
Completion Accounts. 7.1 The Buyer Company, with the support of ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ for their review in accordance with the detailed scope of work attached in Schedule 3.3(a), shall procure that prepare the Group prepares drafts draft Completion Accounts and deliver them to the Purchaser no later than seventy-five (75) Business Days after the Completion Date. As soon as practicable after such delivery, and at the latest within ninety (90) Business Days after such delivery, the Purchaser shall deliver to the Sellers’ Agents a written certificate (the “Certificate”) setting forth:
(i) the Working Capital, the Cash and the Financial Debt of the Company as of the Completion Date (the “Completion Accounts”), together with copies of all supporting accounts as of the Completion Date, as well as their calculation of the purchase price adjustment (the “Purchase Price Adjustment”), if applicable;
(ii) a calculation of the adjustment payments (if any) pursuant to Clause 3.3(e). The Sellers’ Agents and their respective advisers shall have access to the records, accounts and other information of relevance as well as to the management and relevant employees of the Company as they may reasonably request for the preparation of and conduct of their review of the Completion Accounts and the Statement Certificate and, if applicable, in the format set out in schedule 6 (event of any subsequent disagreement and expert procedure pursuant to Clauses 3.3(b) through 3.3(d) below. Upon reasonable request, the “Statement”), on Purchaser shall also procure the basis support of the Company’s accounting policies and procedures set out in schedule 7 and delivers them to staff. In case the Seller within 75 days of Completion.
7.2 The Seller shall notify the Buyer in writing within 45 days of receipt of such draft Completion Accounts and the Statement whether or not it accepts the draft Completion Accounts and Statement for the purposes of this Agreement.
7.3 If the Seller notifies the Buyer that it does not accept such draft Completion Accounts and Statement:
(a) it shall, at the same time as it notifies the Buyer that it does not accept such draft Completion Accounts and Statement, set out in such notice in writing its reasons in reasonable detail for such non-acceptance and specify the adjustments which, in its opinion, should be made to the draft Completion Accounts and the Statement in order to comply with the requirements of this Agreement; and
(b) the parties shall use reasonable endeavours to:
(i) discuss the objections of the Seller; and
(ii) try to reach agreement upon the adjustments (if any) required to be made to the draft Completion Accounts and the Statement in each case, within 20 Business Days of the Seller’s notice of non-acceptance pursuant to clause 7.2 (or such other time as the parties may agree in writing).
7.4 If the Seller is satisfied with the draft Completion Accounts and the Statement (either as originally submitted or after adjustments agreed between the Seller and the Buyer) or if the Seller Purchaser fails to notify the Buyer of its non-acceptance of the draft Completion Accounts and the Statement within the 45 day period referred to in clause 7.2, then the draft Completion Accounts and the Statement (incorporating any agreed adjustments) shall constitute the Completion Accounts and the Statement for the purposes of this Agreement.
7.5 If the Seller and the Buyer do not reach agreement Certificate within the 20 seventy-five (75) Business Day period referred mentioned above, the Sellers’ Agents shall be entitled to in clause 7.3(b) (or such other time as formally summon the parties may agree in writing) then the matters in dispute and in respect of which reasonable details have been provided by the Seller Purchaser to the Buyer at the time that it notified the Buyer that it does not accept provide the Completion Accounts and the Statement Certificate and take any appropriate legal action, including in accordance with clause 7.3(asummary proceedings, should the Purchaser not remedy this breach within five (5) (and only those) shall be referred for determination by an expert to be agreed by Business Days thereafter. In the Seller case where the Sellers’ Agents would not have received the Completion Accounts and the Buyer, and failing such agreement by the Seller and the Buyer Certificate within 10 a forty-five (45) Business Days Day period following the end of the 20 seventy-five (75) Business Day period referred to in clause 7.3(b) (or such other time as mentioned above, the Seller and the Buyer may agree in writing), on the application of either the Buyer or the Seller by an expert appointed by the President of the Institute of Chartered Accountants of England and Wales from time to time (the “Firm”). The following provisions shall apply to such determination:
(a) the Buyer and/or the Buyer’s accountants and the Seller and/or the Seller’s accountants shall each promptly (and in any event within such time frame as reasonably enables the Firm to make its decision in accordance with the time frame set down in clause 7.5(b)) prepare and deliver to the Firm a written statement on the matters in dispute (together with the relevant documents);
(b) the Firm Sellers’ Agents shall be requested entitled to give its decision within 20 Business Days (or such later date as notify the Buyer and Purchaser that the Seller and the Firm agree in writing) of the confirmation and acknowledgment by the Firm of its appointment hereunder;
(c) in giving such determination, the Firm shall state what adjustments (if any) are necessary to the draft Completion Accounts and the Statement in respect of the matters in dispute in order to comply with the requirements of this Agreement and shall give its reasons therefor;
(d) the Firm shall act as an expert (and not as an arbitrator) in making any such determination, and the Completion Accounts and Statement, as adjusted by the Firm Provisional Purchase Price shall be deemed to be finally determined and shall be final and binding on the parties (in the absence of manifest error);
(e) each party shall bear the costs and expenses of for all counsel and other advisers, witnesses and employees retained by it and the costs and the expenses of the Firm shall be borne between the Seller and the Buyer in such proportions as the Firm shall in its discretion determine or, in the absence of any such determination, equally between the Seller and the Buyer.
7.6 When the Seller and the Buyer reach (or pursuant to clause 7.4 are deemed to reach) agreement on the Completion Accounts and the Statement or when the Completion Accounts and the Statement are finally determined at any stage in accordance with the procedures set out in this clause 7 (including clause 7.5):
(a) the Completion Accounts and the Statement as so agreed or determined shall be the Completion Accounts and the Statement for the purposes of this Agreement and shall be final and binding on the parties; and
(b) the Working Capital Amount, the Debt and the Cash, in each case, shall be as set out in the Statement.
7.7 Subject to any rule of law or any regulatory body or any provision of any contract entered into prior to the date of this Agreement to the contrary, the Seller shall procure that each member of the Seller’s Group shall, and the Buyer shall procure that the Group shall, promptly provide each other, their respective advisers, the Firm, the Buyer’s accountants and the Seller’s accountants with all information (in their respective possession or control) relating to the operations of the Seller’s Group and/or the Group, as the case may be, including access at all reasonable times to all the Seller’s Group and Group employees, books, records, and other relevant information and all co-operation and assistance, as may in any such case be reasonably required to:
(a) enable the production of the Completion Accounts and the Statement; and
(b) enable the Firm to determine the Completion Accounts and the Statement. The Seller and the Buyer hereby authorise each other, their respective advisers and the Firm to take copies of all information which they have agreed to provide under this clause 7.7Agreement.
7.8 Subject to clause 7.5(e), the Seller and the Buyer shall each bear their own costs and expenses arising out of the preparation and review of the Completion Accounts and Statement.
Appears in 1 contract
Sources: Securities Sale and Purchase Agreement (Brady Corp)
Completion Accounts. 7.1 The Buyer provisions of this clause 7 shall have effect in respect of the Completion Accounts.
7.2 The Purchaser shall procure that the Group prepares drafts Company shall prepare a draft of the Completion Accounts as soon as practicable following Completion and the Statement in the format set out in schedule 6 (the “Statement”), on the basis of the accounting policies and procedures set out in schedule 7 and delivers them to the Seller within 75 days of Completion.
7.2 The Seller shall notify the Buyer in writing any event within 45 days from Completion. For the avoidance of doubt, and without prejudice to the obligations of the Purchaser under this clause 7.2, the directors of the Company shall be responsible for the preparation of the Completion Accounts although they or the Company shall not be personally liable or owe any duty of care to the Vendor or the Purchaser in respect of the same. Once prepared, the Purchaser shall procure that the draft Completion Accounts shall forthwith be delivered to the Trustees, the Vendor and to the Vendor's Accountants, Messrs. Ernst & Young.
7.3 The Vendor shall forthwith instruct Messrs. Ernst & Young to undertake a review of the draft Completion Accounts within 30 days from receipt of the draft Completion Accounts. If Ernst & Young consider that such draft Completion Accounts have been prepared in accordance with the provisions of this Agreement they shall notify the Vendor and the Statement whether or not it accepts Purchaser of such fact within the draft 30 day period, the Purchaser shall procure that such Completion Accounts are approved by and Statement for signed on behalf of the purposes board of this Agreement.
7.3 the Company as soon as practicable thereafter. If the Seller notifies the Buyer Ernst & Young do not consider that it does not accept such draft Completion Accounts and Statement:
(a) it shallhave been prepared in accordance with the provisions of this Agreement, at they shall notify the same time as it notifies Company within such 30 day period of the Buyer that it does not accept such draft Completion Accounts and Statement, set out in such notice in writing its reasons in reasonable detail for such non-acceptance therefor and specify the adjustments which, in its their opinion, should be made to the draft Completion Accounts and the Statement in order to comply with the requirements of this Agreement; and
(b) Agreement and the parties shall use reasonable endeavours to:
(iin consultation with Messrs Ernst & Young and the Purchaser's Accountants) meet and discuss the objections of the Seller; and
(ii) try to Messrs Ernst & Young and reach agreement upon the adjustments (if any) required to be made to the draft Completion Accounts and the Statement in each case, within 20 Business Days of the Seller’s notice of non-acceptance pursuant to clause 7.2 (or such other time as the parties may agree in writing)Accounts.
7.4 If the Seller is Messrs Ernst & Young are satisfied with the draft Completion Accounts and the Statement (either as originally submitted or after adjustments agreed between the Seller and the Buyerhave been agreed) or if the Seller fails Messrs Ernst & Young fail to notify the Buyer Purchaser of its non-their non- acceptance of the draft Completion Accounts and the Statement within the 45 30 day period referred to in clause 7.27.3, then the draft Completion Accounts and the Statement (incorporating any agreed adjustments) shall constitute the Completion Accounts and the Statement for the purposes purpose of this Agreement. The Purchaser shall procure that such Completion Accounts are approved by and signed on behalf of the board of the Company as soon as practicable thereafter.
7.5 If the Seller Vendor and the Buyer Purchaser do not reach agreement within the 20 Business Day period referred to in 15 days of Messrs. Ernst & Young's notice of non-acceptance under clause 7.3(b) (or such other time as the parties may agree in writing) 7.3, then the matters in dispute and in respect of which reasonable details have been provided by the Seller to the Buyer at the time that it notified the Buyer that it does not accept the Completion Accounts and the Statement in accordance with clause 7.3(a) (and only those) shall be referred for determination by an expert to be agreed by the Seller and the Buyer, and failing such agreement by the Seller and the Buyer within 10 Business Days following the end of the 20 Business Day period referred to in clause 7.3(b) (or such other time as the Seller and the Buyer may agree in writing)referred, on the application of either the Buyer or the Seller party, for determination by an expert appointed independent firm of internationally recognized chartered accountants to be agreed upon by the Vendor and the Purchaser or, failing agreement within a further period of 15 days, to be selected by the President for the time being of the Institute of Chartered Accountants of in England and Wales from time to time (the “Firm”)Wales. The following provisions terms of reference shall apply to such determinationapply:
(a) the Buyer and/or the Buyer’s accountants and the Seller and/or the Seller’s accountants shall each promptly (and in any event within such time frame as reasonably enables the Firm to make its decision in accordance with the time frame set down in clause 7.5(b)) prepare and deliver to the Firm a written statement on the matters in dispute (together with the relevant documents);
(b) the Firm shall be requested to give its decision within 20 Business Days (or such later date as the Buyer and the Seller and the Firm agree in writing) of the confirmation and acknowledgment by the Firm of its appointment hereunder;
(c) in giving such determination, the Firm shall state what adjustments (if any) are necessary to the draft Completion Accounts and the Statement in respect of the matters in dispute in order to comply with the requirements of this Agreement and shall give its reasons therefor;
(d) the Firm shall act as an expert (and not as an arbitrator) in making any such determination, and the Completion Accounts and Statement, as adjusted by the Firm shall be deemed to be finally determined and shall be final and binding on the parties (in the absence of manifest error);
(e) each party shall bear the costs and expenses of all counsel and other advisers, witnesses and employees retained by it and the costs and the expenses of the Firm shall be borne between the Seller and the Buyer in such proportions as the Firm shall in its discretion determine or, in the absence of any such determination, equally between the Seller and the Buyer.
7.6 When the Seller and the Buyer reach (or pursuant to clause 7.4 are deemed to reach) agreement on the Completion Accounts and the Statement or when the Completion Accounts and the Statement are finally determined at any stage in accordance with the procedures set out in this clause 7 (including clause 7.5):
(a) the Completion Accounts and the Statement as so agreed or determined shall be the Completion Accounts and the Statement for the purposes of this Agreement and shall be final and binding on the parties; and
(b) the Working Capital Amount, the Debt and the Cash, in each case, shall be as set out in the Statement.
7.7 Subject to any rule of law or any regulatory body or any provision of any contract entered into prior to the date of this Agreement to the contrary, the Seller shall procure that each member of the Seller’s Group shall, and the Buyer shall procure that the Group shall, promptly provide each other, their respective advisers, the Firm, the Buyer’s accountants and the Seller’s accountants with all information (in their respective possession or control) relating to the operations of the Seller’s Group and/or the Group, as the case may be, including access at all reasonable times to all the Seller’s Group and Group employees, books, records, and other relevant information and all co-operation and assistance, as may in any such case be reasonably required to:
(a) enable the production of the Completion Accounts and the Statement; and
(b) enable the Firm to determine the Completion Accounts and the Statement. The Seller and the Buyer hereby authorise each other, their respective advisers and the Firm to take copies of all information which they have agreed to provide under this clause 7.7.
7.8 Subject to clause 7.5(e), the Seller and the Buyer shall each bear their own costs and expenses arising out of the preparation and review of the Completion Accounts and Statement.
Appears in 1 contract
Sources: Agreement for the Sale and Purchase of Shares (Lasalle Partners Inc)
Completion Accounts. 7.1 The Buyer shall procure that 4.1.1 As soon as practicable and in any event within 45 days of Completion the Group prepares drafts Vendors' Accountants (at the cost of the Vendor or (so far as may be lawful so to do) as a cost accrued to the Company) will prepare a balance sheet of the Company as at the date of Completion and a profit and loss account of the Company for the period from 1 November 1990 to the close of business on the day before the date of Completion ("the Completion Accounts") and a certificate of the Net Asset Value of the Company as at Completion (the "NAV Certificate") using the same accounting policies as used in the Accounts and deliver the Completion Accounts and the Statement in NAV Certificate to the format set Purchaser.
4.1.2 At its election and at its own cost the Purchaser will either carry out in schedule 6 (its own audit or review the “Statement”), on the basis work of the accounting policies Vendors' Accountants and procedures set out in schedule 7 and delivers them to the Seller within 75 days of Completion.
7.2 The Seller shall notify the Buyer in writing within 45 days of receipt delivery of such draft Completion Accounts and the Statement NAV Certificate notify the Vendors as to whether or not it accepts approves the draft Completion Accounts and Statement for the purposes of this AgreementNAV Certificate.
7.3 If 4.1.3 In the Seller notifies event that the Buyer that it does Purchaser shall not accept within such draft Completion Accounts and Statement:
(a) it shall, at period of 45 days agree the same time as it notifies Net Asset Value then the Buyer that it does not accept such draft Completion Accounts and Statement, set out in such notice in writing its reasons in reasonable detail for such non-acceptance and specify the adjustments which, in its opinion, should be made to the draft Completion Accounts Vendors and the Statement in order Purchaser shall together attempt to comply resolve any such written queries and observations that have been raised by the Purchaser with the requirements of this Agreement; and
(b) the parties shall use reasonable endeavours to:
(i) discuss the objections of the Seller; and
(ii) try to reach agreement upon the adjustments (if any) required to be made to the draft Completion Accounts and the Statement in each case, within 20 Business Days of the Seller’s notice of non-acceptance pursuant to clause 7.2 (or regard thereto. If no such other time as the parties may agree in writing).
7.4 If the Seller is satisfied with the draft Completion Accounts and the Statement (either as originally submitted or after adjustments resolution has been agreed between the Seller and parties within a further period of 14 days of notification to the Buyer) or if the Seller fails to notify the Buyer of its non-acceptance of the draft Completion Accounts and the Statement within the 45 day period referred to in clause 7.2, then the draft Completion Accounts and the Statement (incorporating any agreed adjustments) shall constitute the Completion Accounts and the Statement for the purposes of this Agreement.
7.5 If the Seller and the Buyer do not reach agreement within the 20 Business Day period referred to in clause 7.3(b) (or such other time as the parties may agree in writing) then the matters in dispute and in respect of which reasonable details have been provided Vendors by the Seller to Purchaser, the Buyer at the time that it notified the Buyer that it does not accept the Completion Accounts and the Statement in accordance with clause 7.3(a) (and only those) matter shall be referred for determination to an independent firm of chartered accountants as may be appointed by an expert to be agreed by agreement between the Seller Vendors and the BuyerPurchaser or, and failing such agreement by the Seller and the Buyer within 10 Business Days following the end of the 20 Business Day period referred to in clause 7.3(b) (or such other time as the Seller and the Buyer may agree in writing)7 days, on the application of either the Buyer or the Seller by an expert appointed by the President of the Institute of Chartered Accountants of in England and Wales from for the time to time (the “Firm”)being. The following provisions shall apply to decision of such determination:
chartered accountants (a) the Buyer and/or the Buyer’s accountants and the Seller and/or the Seller’s accountants shall each promptly (and in any event within such time frame acting as reasonably enables the Firm to make its decision in accordance with the time frame set down in clause 7.5(b)) prepare and deliver to the Firm a written statement on the matters in dispute (together with the relevant documents);
(b) the Firm shall be requested to give its decision within 20 Business Days (or such later date as the Buyer and the Seller and the Firm agree in writing) of the confirmation and acknowledgment by the Firm of its appointment hereunder;
(c) in giving such determination, the Firm shall state what adjustments (if any) are necessary to the draft Completion Accounts and the Statement in respect of the matters in dispute in order to comply with the requirements of this Agreement and shall give its reasons therefor;
(d) the Firm shall act as an expert (experts and not as an arbitratorarbitrators) shall, in making any such determinationthe a bsence of manifest error, and the Completion Accounts and Statement, as adjusted by the Firm shall be deemed to be finally determined and shall be final and binding on upon the parties (and shall be incorporated in or otherwise dealt with in the absence NAV Certificate. The fee of manifest error);
(e) each party shall bear the costs and expenses of all counsel and other advisers, witnesses and employees retained by it and the costs and the expenses of the Firm such chartered accountants shall be borne between the Seller and the Buyer in as such proportions as the Firm independent firm shall in its discretion determine determine, or, in the absence of any such determination, equally between by the Seller Vendors and the BuyerPurchaser.
7.6 When 4.1.4 In the Seller and the Buyer reach (or pursuant to clause 7.4 are deemed to reach) agreement on the Completion Accounts and the Statement or when the Completion Accounts and the Statement are finally determined at any stage in accordance with the procedures set out in this clause 7 (including clause 7.5):
(a) the Completion Accounts and the Statement as so agreed or determined shall be the Completion Accounts and the Statement for the purposes of this Agreement and shall be final and binding on the parties; and
(b) the Working Capital Amount, the Debt and the Cash, in each case, shall be as set out in the Statement.
7.7 Subject to any rule of law or any regulatory body or any provision of any contract entered into prior to the date of this Agreement to the contrary, the Seller shall procure that each member of the Seller’s Group shall, and the Buyer shall procure event that the Group shall, promptly provide each other, their respective advisers, the Firm, the Buyer’s accountants and the Seller’s accountants with all information (Purchaser does not raise any queries or observations in their respective possession or control) relating to the operations of the Seller’s Group and/or the Group, as the case may be, including access at all reasonable times to all the Seller’s Group and Group employees, books, records, and other relevant information and all co-operation and assistance, as may in any such case be reasonably required to:
(a) enable the production respect of the Completion Accounts and the Statement; and
(b) enable the Firm N.A.V. Certificate within 45 days of their delivery to determine it or if they shall agree the Completion Accounts and the Statement. The Seller N.A.V. Certificate then (and in either such case) the Net Asset Value shall be as stated in the N.A.V. Certificate and the Buyer hereby authorise each other, their respective advisers and the Firm Purchaser shall be deemed to take copies of all information which they have agreed to provide under for all purposes of this clause 7.7.
7.8 Subject to clause 7.5(e), Agreement the Seller and the Buyer shall each bear their own costs and expenses arising out Net Asset Value of the preparation and review of Company
4.1.5 IT IS HEREBY AGREED tht in preparing the Completion Accounts and Statementthe N.A.V. Certificate, the Vendors' Accountants shall not be required to re-circulate any of the debtors of the Company in respect of debts in respect of which contact was made in the preparation of the Accounts but the Purchasers may, if they so decide and to the extent that time permits in accordance with Clause 4.1.2, re-circulate such debtors in carrying out their review under such Clause.
Appears in 1 contract
Completion Accounts. 7.1 6.1 Immediately after Completion the Purchaser's Accountants (or their representatives) and the Auditors (or their representatives) shall, if the Purchaser elects, participate in a physical stocktake conducted by the Company at the Properties.
6.2 The Buyer Purchaser and the Vendors shall use all reasonable endeavours to procure that draft accounts for the Group prepares drafts Company in respect of the period from the Accounting Date to the Completion Date shall be prepared by the Company as soon as reasonably practicable after such stocktake and such accounts:
6.2.1 shall be prepared on the same accounting bases and in accordance with the same accounting and valuation principles and practices as the Accounts; and
6.2.2 shall in all respects comply with current legislation and standard accounting principles and practice.
6.3 Following the preparation of such draft accounts, the Company shall submit them to the Auditors who shall conduct an audit applying the same bases and principles referred to in Clause 6.2 and produce the Completion Accounts and a draft statement as to the Statement in amount of the format set out in schedule 6 Net Assets (the “Statement”), on "NET ASSET STATEMENT") confirming that in their opinion the basis of the accounting policies and procedures set out in schedule 7 and delivers them to the Seller within 75 days of Completion.
7.2 The Seller shall notify the Buyer in writing within 45 days of receipt of such draft Completion Accounts have been prepared in accordance with the provisions of this Clause 6. The Auditors shall agree in advance with the Purchaser's Accountants what audit procedures should be employed in conducting the audit and shall carry out the Statement whether or not it accepts audit on that basis
6.4 The Auditors shall, as soon as reasonably practicable, submit the draft Completion Accounts and draft Net Asset Statement to the Purchaser's Accountants for the purposes of this Agreement.
7.3 If the Seller notifies the Buyer that it does not accept such draft Completion Accounts and Statement:
(a) it shall, at the same time as it notifies the Buyer that it does not accept such draft Completion Accounts and Statement, set out in such notice in writing its reasons in reasonable detail for such non-acceptance and specify the their review to determine if there are any material adjustments which, in its opinion, should be made required to the draft Completion Accounts and the Statement in order to comply with draft Net Asset Statement. The Vendors shall procure that the requirements of this Agreement; and
(b) Auditors' working papers and the parties shall use reasonable endeavours to:
(i) discuss the objections of the Seller; and
(ii) try to reach agreement upon the adjustments (if any) required to be Company's books and accounts are made available to the draft Completion Accounts Purchaser's Accountants, if required by them in carrying out their review.
6.5 If the Purchaser's Accountants and the Statement in each case, within 20 Business Days Auditors are able to agree the form and content of the Seller’s notice of non-acceptance pursuant to clause 7.2 (or such other time as the parties may agree in writing).
7.4 If the Seller is satisfied with the draft Completion Accounts and the Statement (either as originally submitted or after adjustments agreed between the Seller and the Buyer) or if the Seller fails to notify the Buyer of its non-acceptance of the draft Completion Accounts and the Statement within the 45 day period referred to in clause 7.2, then the draft Completion Accounts and the Statement (incorporating any agreed adjustments) shall constitute the Completion Accounts and the Net Asset Statement for within 30 days of the purposes of this Agreement.
7.5 If date on which the Seller drafts were submitted to the Purchaser's Accountants (or within such other period as the Vendors and the Buyer do not reach agreement within the 20 Business Day period referred to in clause 7.3(b) (or such other time as the parties may agree in writing) then the matters in dispute and in respect of which reasonable details have been provided by the Seller to the Buyer at the time that it notified the Buyer that it does not accept the Completion Accounts and the Statement in accordance with clause 7.3(a) (and only those) shall be referred for determination by an expert to be agreed by the Seller and the Buyer, and failing such agreement by the Seller and the Buyer within 10 Business Days following the end of the 20 Business Day period referred to in clause 7.3(b) (or such other time as the Seller and the Buyer Purchaser may agree in writing), on the application of either the Buyer or the Seller by an expert appointed by the President of the Institute of Chartered Accountants of England and Wales from time to time (the “Firm”). The following provisions shall apply to such determination:
(a) the Buyer and/or the Buyer’s accountants and the Seller and/or the Seller’s accountants shall each promptly (and in any event within such time frame accounts as reasonably enables the Firm to make its decision in accordance with the time frame set down in clause 7.5(b)) prepare and deliver to the Firm a written statement on the matters in dispute (together with the relevant documents);
(b) the Firm so agreed shall be requested to give its decision within 20 Business Days (or such later date as the Buyer and the Seller and the Firm agree in writing) of the confirmation and acknowledgment by the Firm of its appointment hereunder;
(c) in giving such determination, the Firm shall state what adjustments (if any) are necessary to the draft Completion Accounts and the Auditors shall issue a Net Asset Statement in respect of the matters in dispute in order to comply with the requirements of this Agreement and shall give its reasons therefor;
(d) the Firm shall act as an expert (and not as an arbitrator) in making any such determination, and the Completion Accounts and Statement, as adjusted by the Firm shall be deemed to be finally determined and which shall be final and binding on the parties (Parties but such statement shall be without prejudice to the Purchaser's right to claim under the Warranties, the Deed of Indemnity or otherwise in respect of any matter. In carrying out their functions under this Agreement, the absence of manifest error);
(e) each party shall bear the costs and expenses of all counsel and other advisers, witnesses and employees retained by it Auditors and the costs Purchaser's Accountants shall be deemed to be acting as experts and not as arbitrators.
6.6 If the Purchaser's Accountants and the expenses of Auditors shall not be able to agree the Firm shall be borne between the Seller form and the Buyer in such proportions as the Firm shall in its discretion determine or, in the absence of any such determination, equally between the Seller and the Buyer.
7.6 When the Seller and the Buyer reach (or pursuant to clause 7.4 are deemed to reach) agreement on the Completion Accounts and the Statement or when the Completion Accounts and the Statement are finally determined at any stage in accordance with the procedures set out in this clause 7 (including clause 7.5):
(a) the Completion Accounts and the Statement as so agreed or determined shall be the Completion Accounts and the Statement for the purposes of this Agreement and shall be final and binding on the parties; and
(b) the Working Capital Amount, the Debt and the Cash, in each case, shall be as set out in the Statement.
7.7 Subject to any rule of law or any regulatory body or any provision of any contract entered into prior to the date of this Agreement to the contrary, the Seller shall procure that each member of the Seller’s Group shall, and the Buyer shall procure that the Group shall, promptly provide each other, their respective advisers, the Firm, the Buyer’s accountants and the Seller’s accountants with all information (in their respective possession or control) relating to the operations of the Seller’s Group and/or the Group, as the case may be, including access at all reasonable times to all the Seller’s Group and Group employees, books, records, and other relevant information and all co-operation and assistance, as may in any such case be reasonably required to:
(a) enable the production content of the Completion Accounts and the Statement; Net Asset Statement within 30 days of the date on which the draft accounts were first submitted to the Purchaser's Accountants (or within such other period as the Vendors and the Purchaser may agree in writing) the matter may be referred by the Vendors or the Purchaser to an independent firm of chartered accountants selected by agreement between the Vendors and the Purchaser or, failing agreement, nominated by the President for the time being of the Hong Kong Society of Accountants on the application of any of the Vendors or the Purchaser and:
6.6.1 such independent firm of chartered accountants shall be requested to settle any matter in dispute, applying the same bases and principles as are referred to in Clause 6.2 and (bunless both the Vendors and the Purchaser shall otherwise direct in writing) enable determine the Firm to determine form and content of the Completion Accounts and the Net Asset Statement. The Seller ; and
6.6.2 the decision of such firm of chartered accountants as to the matter in dispute and their determination (if any) as to the Buyer hereby authorise each other, their respective advisers form and the Firm to take copies of all information which they have agreed to provide under this clause 7.7.
7.8 Subject to clause 7.5(e), the Seller and the Buyer shall each bear their own costs and expenses arising out of the preparation and review content of the Completion Accounts and Statement.the Net Asset Statement shall, in the absence of
Appears in 1 contract
Sources: Agreement for the Sale and Purchase of Shares (Asia Online LTD)
Completion Accounts. 7.1 (1) The Buyer Purchaser shall, within 60 days of Completion, prepare a draft audited statement of the assets and liabilities of the Business at the Effective Time on the basis set out in Schedule 4 (the "Completion Accounts") together with a statement of Net Assets Transferred (as defined in subclause (9) below) (the "Statement of Net Assets Transferred"). For this purpose:
(a) the Purchaser shall procure that a return shall be prepared for each business unit in the Business in the form known as the "Final Accounts Pack" used for the consolidation by Glynwed and these returns will be consolidated;
(b) the Purchaser shall prepare an inventory of the Stocks as at the Effective Time on the basis also set out in Schedule 4; and
(c) the Seller shall procure that the Group prepares drafts Seller's Auditors give to the Purchaser's Auditors access to their working papers relating to the preparation of the Completion Accounts and under the Statement in the format set out in schedule 6 appropriate "hold harmless letters".
(the “Statement”), on the basis 2) The Purchaser shall ensure that forthwith upon completion of the accounting policies and procedures set out in schedule 7 and delivers them to the Seller within 75 days preparation of Completion.
7.2 The Seller shall notify the Buyer in writing within 45 days of receipt of such draft Completion Accounts and the Statement whether or not it accepts the draft Completion Accounts and Statement for the purposes of this Agreement.
7.3 If the Seller notifies the Buyer that it does not accept such draft Completion Accounts and Statement:
(a) it shall, at the same time as it notifies the Buyer that it does not accept such draft Completion Accounts and Statement, set out in such notice in writing its reasons in reasonable detail for such non-acceptance and specify the adjustments which, in its opinion, should be made Net Assets Transferred they are submitted to the draft Completion Accounts and the Statement in order to comply with the requirements of this Agreement; and
(b) the parties shall use reasonable endeavours to:
(i) discuss the objections of the Seller; and
(ii) try to reach agreement upon the adjustments (if any) required to be made to the draft Completion Accounts and the Statement in each case, within 20 Business Days of the Seller’s notice of non-acceptance pursuant to clause 7.2 (or such other time as the parties may agree in writing).
7.4 If the Seller is satisfied with the draft Completion Accounts and the Statement (either as originally submitted or after adjustments agreed between the Seller and the Buyer) or if Seller's Auditors for review. The Purchaser shall provide the Seller fails and the Seller's Auditors with such information, access to notify the Buyer physical assets, accounts and records, employees and other facilities of its non-acceptance the Business as they shall reasonably require to carry out such review and shall provide such information and explanations as the Seller or the Seller's Auditors may reasonably request during the course of their review of the draft Completion Accounts and Statement of Net Assets Transferred (including such information and access in the Statement within the 45 day period referred to in clause 7.2, then during which the draft Completion Accounts and Statement of Net Assets Transferred are being prepared). For these purposes the Statement Purchaser shall procure that the Purchaser's Auditors give to the Seller's Auditors access to their working papers under the appropriate "hold harmless" letters.
(incorporating any agreed adjustments3) The Seller's Auditors shall constitute have up to 30 days to carry out their review of the draft Completion Accounts and Statement of Net Assets Transferred submitted to them under subclause (2) above and notify the Statement for the purposes Purchaser's Auditors of this Agreement.
7.5 If the Seller and the Buyer do not reach agreement within the 20 Business Day period referred any item which they wish to in clause 7.3(b) (or such other time as the parties may agree in writing) then the matters in dispute and in respect of which reasonable details have been provided by the Seller to the Buyer at the time that it notified the Buyer that it does not accept the Completion Accounts and the Statement in accordance with clause 7.3(a) (and only those) shall be referred for determination by an expert to be agreed by the Seller and the Buyer, and failing such agreement by the Seller and the Buyer within 10 Business Days following the end of the 20 Business Day period referred to in clause 7.3(b) (or such other time as the Seller and the Buyer may agree in writing), on the application of either the Buyer or the Seller by an expert appointed by the President of the Institute of Chartered Accountants of England and Wales from time to time (the “Firm”). The following provisions shall apply to such determination:
(a) the Buyer and/or the Buyer’s accountants and the Seller and/or the Seller’s accountants shall each promptly (and in any event within such time frame as reasonably enables the Firm to make its decision in accordance with the time frame set down in clause 7.5(b)) prepare and deliver to the Firm a written statement on the matters in dispute (together with the relevant documents);
(b) the Firm shall be requested to give its decision within 20 Business Days (or such later date as the Buyer and the Seller and the Firm agree with, in writing) of the confirmation and acknowledgment by the Firm of its appointment hereunder;
(c) in giving such determinationreasonable detail, the Firm shall state what adjustments (basis of such dispute in relation to each such item) and, if any) are necessary the Seller's Auditors fail to notify the Purchaser's Auditors in writing of any disputed matter relating to the draft Completion Accounts and or Statement of Net Assets Transferred within such 30 day period, the Statement in respect of the matters in dispute in order to comply with the requirements of this Agreement and shall give its reasons therefor;
(d) the Firm shall act as an expert (and not as an arbitrator) in making any such determination, and the draft Completion Accounts and Statement, as adjusted by Statement of Net Assets Transferred submitted to the Firm shall be deemed to be finally determined and Seller's Auditors under subclause (2) above shall be final and binding on the parties as the Completion Accounts and the Statement of Net Assets Transferred, respectively.
(4) If the Seller's Auditors and the Purchaser's Auditors are not able to agree any matter on the draft Completion Accounts or Statement of Net Assets Transferred disputed in accordance with subclause (3) above they shall specify in writing to the Seller and the Purchaser the matter(s) in dispute which in default of any agreement within seven days between the Seller and the Purchaser shall be determined by:
(a) such firm of chartered accountants as the parties may agree in writing; or
(b) failing agreement on the identity of the firm of chartered accountants within a further seven days from the expiry of the period of seven days referred to above, such firm of chartered accountants as may be appointed for this purpose on the application of either the Seller or the Purchaser by the President for the time being of the Institute of Chartered Accountants in England and Wales.
(5) The accountants appointed under subclause (4) above (the "Accountants") shall act on the following basis:
(a) the Accountants shall act as experts and not as arbitrators;
(b) their terms of reference shall be to determine an amount which represents the item or items in dispute, as notified to them in writing by either the Seller or the Purchaser within 28 days of their appointment;
(c) the Seller and the Purchaser shall each provide the Accountants with all information which they reasonably require and the Accountants shall be entitled (to the extent they consider it appropriate) to base their opinion on such information and on the accounting and other records of the Business;
(d) the determination of the Accountants shall (in the absence of manifest error);) be conclusive; and
(e) each party shall bear the their costs and expenses of all counsel and other advisers, witnesses and employees retained by it and the costs and the expenses of the Firm shall be borne equally as between the Seller on the one hand and the Buyer in such proportions as Purchaser on the Firm shall in its discretion determine or, in the absence of any such determination, equally between the Seller and the Buyerother.
7.6 When the Seller and the Buyer reach (or pursuant to clause 7.4 are deemed to reach6) Upon agreement on of the Completion Accounts and the Statement or when of Net Assets Transferred between the Seller's Auditors and the Purchaser's Auditors (or, in the event of any dispute being determined pursuant to subclause (4) above, upon completion of such determination), the Completion Accounts and the Statement are finally determined at any stage in accordance with the procedures set out in this clause 7 (including clause 7.5):
(a) the Completion Accounts and the Statement of Net Assets Transferred as so agreed or determined shall be the Completion Accounts and the Statement for the purposes of this Agreement and shall be final and binding on the parties; and.
(b7) the Working Capital Amount, the Debt and the Cash, in each case, shall be as set out in the Statement.
7.7 Subject to any rule Within five Business Days of law agreement or any regulatory body or any provision of any contract entered into prior to the date of this Agreement to the contrary, the Seller shall procure that each member of the Seller’s Group shall, and the Buyer shall procure that the Group shall, promptly provide each other, their respective advisers, the Firm, the Buyer’s accountants and the Seller’s accountants with all information (in their respective possession or control) relating to the operations of the Seller’s Group and/or the Group, as the case may be, including access at all reasonable times to all the Seller’s Group and Group employees, books, records, and other relevant information and all co-operation and assistance, as may in any such case be reasonably required to:
(a) enable the production determination of the Completion Accounts and the Statement; andStatement of Net Assets Transferred in accordance with this clause, if the amount of the Net Assets Transferred (as shown on the Statement of Net Assets Transferred) is more than (pound)24,796,000 (the "Estimated Net Assets Transferred") the Purchaser shall pay to the Seller an amount equal to the surplus and if the amount of the Net Assets Transferred (as shown on the Statement of Net Assets Transferred) is less than the amount of the Estimated Net Assets Transferred the Seller shall repay to the Purchaser an amount equal to the shortfall.
(b8) [Left blank intentionally]
(9) enable For the Firm to determine purposes of this clause "Net Assets Transferred" shall comprise the aggregate of the following assets, at the values reflected in the Completion Accounts and the Statement. The Seller and the Buyer hereby authorise each other, their respective advisers and the Firm to take copies of all information which they have agreed to provide under this clause 7.7.
7.8 Subject to clause 7.5(e), the Seller and the Buyer shall each bear their own costs and expenses arising out of the preparation and review of the Completion Accounts and Statement.Accounts:
Appears in 1 contract
Completion Accounts. 7.1 The Buyer Purchaser shall procure that the Group prepares drafts as soon as possible, and in any event within 60 calendar days of the Completion Accounts and Date a draft Completion Balance Sheet (having the Statement same line items as the balance sheet contained in the format Accounts for the Sale Group member to which such draft Completion Balance Sheet relates and by way of example only, an illustrative calculation is set out in schedule 6 Appendix I) in respect of each of SCCL and UK OpCo (such Completion Balance Sheets together the “StatementDraft Completion Balance Sheets”), on ) are prepared and delivered to the basis Seller. Each Draft Completion Balance Sheet shall include a draft statement of Net Working Capital for the company to which such Completion Balance Sheet relates. The Draft Completion Balance Sheet for SCCL shall specify the Purchaser’s calculation of the accounting policies and procedures set out SCCL Intergroup Debt. The Purchaser shall prepare the Draft Completion Balance Sheets in schedule 7 and delivers them to accordance with the Seller within 75 days of CompletionAccounting Principles.
7.2 The Seller shall notify the Buyer in writing within 45 days of receipt of such draft Completion Accounts and the Statement whether Seller’s Auditors shall be entitled to review the Draft Completion Balance Sheets for a period of 60 calendar days following receipt from the Purchaser.
7.3 The Purchaser shall provide the Seller and the Seller’s Auditors with such information as the Seller and the Seller’s Auditors shall reasonably require or shall procure that such information is provided to the Seller and the Seller’s Auditors and allow the Seller and the Seller’s Auditors access to each member of the Sale Group and its books and records, its employees and advisers (at reasonable times and upon reasonable notice and subject to the Seller agreeing in favour of the Purchaser to keep all confidential information disclosed to it in accordance with this clause 7.3 confidential on the terms as set out in clause 21), and shall use its reasonable efforts to procure access to the Purchaser’s Auditors (if retained) and their working papers (or, if the Purchaser’s Auditors are not it accepts the draft Completion Accounts and Statement retained for the purposes of this Agreement.
7.3 If the Seller notifies the Buyer that it does not accept such draft Completion Accounts and Statement:
(a) it shall, at the same time as it notifies the Buyer that it does not accept such draft Completion Accounts and Statement, set out in such notice in writing its reasons in reasonable detail for such non-acceptance and specify the adjustments which, in its opinion, should be made to preparing the draft Completion Accounts Balance Sheet, the Purchaser’s own working papers or equivalent) in each case insofar as is reasonably required for the analysis and the Statement in order to comply with the requirements of this Agreement; and
(b) the parties shall use reasonable endeavours to:
(i) discuss the objections verification of the Seller; and
Draft Completion Balance Sheets (ii) try to reach agreement upon the adjustments (if any) required to be made to including the draft Completion Accounts and the Statement in each case, within 20 Business Days statements of the Seller’s notice of non-acceptance pursuant to clause 7.2 (or such other time as the parties may agree in writingNet Working Capital contained therein).
7.4 At or before the end of the period of 60 calendar days referred to in clause 7.2, the Seller shall either:
7.4.1 notify the Purchaser that it accepts each Draft Completion Balance Sheet in its entirety, in which case the Draft Completion Balance Sheets shall constitute the Completion Balance Sheets (and the amount of the Net Working Capital shall be the amount set out in the draft Net Working Capital statements contained therein) and such Draft Completion Balance Sheets shall be final and binding on the Seller and the Purchaser; or
7.4.2 deliver to the Purchaser written notice of those items and, where practicable, the amount in each Draft Completion Balance Sheet or draft statement of Net Working Capital, as appropriate, which it disputes, in which case only those items or amounts identified by the Seller (the “Disputed Items”) shall be in dispute and shall be agreed or determined in accordance with clause 7.5.
7.5 If the Seller is satisfied with delivers a notice under clause 7.4.2 then the draft Completion Accounts Seller and the Statement (either Purchaser shall use their respective reasonable endeavours to agree the Disputed Items within 30 calendar days, or such longer period as originally submitted or after adjustments may be agreed between them. Any Disputed Items agreed between the Seller and the Buyer) or if the Seller fails to notify the Buyer of its non-acceptance of the draft Completion Accounts and the Statement Purchaser within the 45 that 30 calendar day period referred shall be reflected in amendments to in clause 7.2the Draft Completion Balance Sheets. At the end of that 30 calendar day period, then the draft Completion Accounts and the Statement (incorporating any those Disputed Items which have not been agreed adjustments) shall constitute the Completion Accounts and the Statement for the purposes of this Agreement.
7.5 If between the Seller and the Buyer do not reach agreement within the 20 Business Day period referred to in clause 7.3(bPurchaser (if any) (or such other time as the parties may agree in writing) then the matters in dispute and in respect of which reasonable details have been provided by the Seller to the Buyer at the time that it notified the Buyer that it does not accept the Completion Accounts and the Statement in accordance with clause 7.3(a) (and only those“Unresolved Disputed Items”) shall be referred for final binding determination by an expert to be agreed by such firm of independent accountants of international standing (the “Expert”) as the Seller and the BuyerPurchaser may agree or, and failing such in the absence of agreement by the Seller and the Buyer within 10 Business Days following the end expiry of the 20 Business Day such 30 day period, or longer period referred to in clause 7.3(b) (or such other time as agreed between the Seller and the Buyer Purchaser, as may agree in writing), on be selected at the application request of either the Buyer Seller or the Seller by an expert appointed Purchaser by the President of the Institute of Chartered Accountants of in England and Wales from time Wales, with instructions that the Expert render his decision on the Unresolved Disputed Items (and any matters specifically relating thereto) and notify it to time (the “Firm”). The following provisions shall apply to such determination:
(a) the Buyer and/or the Buyer’s accountants Seller and the Purchaser within 30 days of the Expert accepting such referral. In each case, the Expert so selected (either by agreement between the Seller and/or and the Seller’s accountants Purchaser or otherwise in accordance with this clause 7.5) shall each promptly (act as expert and not as arbitrator and the Unresolved Disputed Items in any event within such time frame as reasonably enables a Draft Completion Balance Sheet will be determined by the Firm to make its decision Expert in accordance with the time frame set down in clause 7.5(b)) prepare Accounting Principles and deliver such adjustments as are required to be made as a result of the Expert’s determination of such Unresolved Disputed Items shall be made to the Firm a written statement on Draft Completion Balance Sheet in which such Unresolved Disputed Items appear or to which such Unresolved Disputed Items relate which shall then constitute the matters in dispute Completion Balance Sheet (together with and the relevant documents);
(b) amount of the Firm Net Working Capital shall be requested to give its decision within 20 Business Days (or such later date the amount set out in the statement of Net Working Capital as the Buyer and the Seller and the Firm agree in writingso adjusted) of the confirmation and acknowledgment by the Firm of its appointment hereunder;
(c) in giving such determination, the Firm shall state what adjustments (if any) are necessary to the draft Completion Accounts and the Statement in respect of the matters in dispute in order to comply with the requirements of this Agreement and shall give its reasons therefor;
(d) the Firm shall act as an expert (and not as an arbitrator) in making any such determination, and the Completion Accounts and Statement, as adjusted by the Firm shall be deemed to be finally determined and which shall be final and binding on the parties (in the absence of manifest error);
(e) each party shall bear the costs and expenses of all counsel and other advisers, witnesses and employees retained by it Seller and the costs and the expenses Purchaser. Each of the Firm shall be borne between the Seller and the Buyer in Purchaser shall respectively provide or procure the provision to the Expert of all such proportions information as the Firm Expert shall reasonably require including from their respective Auditors and, in the case of the Purchaser, such business records and accounts of the Sale Group in the possession, custody or control of the Purchaser which the Expert shall in its discretion determine orconsider necessary. The decision of the Expert shall, in the absence of any such determinationfraud or manifest error, equally between the Seller and the Buyer.
7.6 When the Seller and the Buyer reach (or pursuant to clause 7.4 are deemed to reach) agreement on the Completion Accounts and the Statement or when the Completion Accounts and the Statement are finally determined at any stage in accordance with the procedures set out in this clause 7 (including clause 7.5):
(a) the Completion Accounts and the Statement as so agreed or determined shall be the Completion Accounts and the Statement for the purposes of this Agreement and shall be final and binding on the parties; andPurchaser and the Seller. The Seller and/or the Purchaser shall pay the costs of the Expert as the Expert may direct failing which such costs shall be borne equally by the Seller and the Purchaser.
7.6 Within 7 Business Days of the agreement or final determination of the Completion Balance Sheets (b) and the Net Working Capital Amount, the Debt and the Cash, in each case, shall be statements contained therein) as set out in this clause 7:
7.6.1 if the Statement.
7.7 Subject to any rule sum of law or any regulatory body or any provision the Net Working Capital of any contract entered into prior SCCL and the Net Working Capital of UK OpCo (the “Aggregate Actual NWC”) is greater than the Aggregate Projected NWC, the Purchaser shall pay to the date of this Agreement Seller an amount equal to the contraryexcess, PROVIDED THAT the maximum amount payable under this clause 7.6.1 shall not, when added to the amount by which the Completion Amount is increased under clause 4.2.1 (if any), exceed [*] );
7.6.2 if the Aggregate Projected NWC is greater than the Aggregate Actual NWC, the Seller shall pay to the Purchaser an amount equal to the excess;
7.6.3 if the SCCL Intergroup Debt shown in the Completion Balance Sheets is less than the amount of the Estimated SCCL Intergroup Debt, then (a) the Seller shall pay (or procure that each a Calpine Group member of pays) to SCCL an amount equal to the deficit and (b) subject to and conditional upon the Seller’s compliance with sub-clause (a) of this clause 7.6.3, the Purchaser shall pay the Seller an amount equal to the deficit; and
7.6.4 if the SCCL Intergroup Debt shown in the SCCL Completion Balance Sheet is in excess of the amount of the Estimated SCCL Intergroup Debt, then (a) the Seller shall pay (or procure that a Calpine Group shallmember pays) the Purchaser an amount equal to the excess and (b) subject to and conditional upon the Seller’s compliance with sub-clause (a) of this clause 7.6.4, and the Buyer Purchaser shall procure that SCCL pays an amount equal to the Group shall, promptly provide each other, their respective advisers, excess to the Firm, Seller which amount shall be in full and final settlement of the Buyer’s accountants SCCL Intergroup Debt and the Seller’s accountants with all information Seller shall (if requested to do so by the Purchaser) acknowledge the same in their respective possession or control) relating writing to the operations of the Seller’s Group and/or the Group, as the case may be, including access at all reasonable times Purchaser. Any payments required to all the Seller’s Group and Group employees, books, records, and other relevant information and all co-operation and assistance, as may in any such case be reasonably required to:
(a) enable the production of the Completion Accounts and the Statement; and
(b) enable the Firm to determine the Completion Accounts and the Statement. The Seller and the Buyer hereby authorise each other, their respective advisers and the Firm to take copies of all information which they have agreed to provide made under this clause 7.77.6 will be made in accordance with clause 4.4.
7.8 Subject 7.7 The Purchaser shall not be entitled to clause 7.5(e), recover from the Seller and in respect of any Warranty being breached or being inaccurate or misleading or in respect of any breach of any other provision of this Agreement (or any other agreement pertaining to this transaction) or in respect of any indemnity contained in any agreement pertaining to this transaction to the Buyer shall each bear their own costs and expenses arising out extent that the amount which the Purchaser seeks to recover from the Seller has been taken into account in the calculation of the preparation and review of the Completion Accounts and StatementNet Working Capital for either SCCL or UK OpCo.
Appears in 1 contract
Completion Accounts. 7.1 2.1 The Buyer Sellers (up to completion) and the Purchaser (after Completion) shall procure that the Group prepares drafts finalised accounts of the Completion Accounts Companies for the year ended 31 December 2004 are prepared and the Statement in the format set out in schedule 6 (the “Statement”), on the basis of the accounting policies and procedures set out in schedule 7 and delivers them to the Seller within 75 days of Completionaudited as soon as practical.
7.2 2.2 The Seller Purchaser shall notify the Buyer procure that as soon as possible, and in writing within 45 days of receipt of such draft Completion Accounts and the Statement whether or not it accepts the draft Completion Accounts and Statement for the purposes of this Agreement.
7.3 If the Seller notifies the Buyer that it does not accept such draft Completion Accounts and Statement:
(a) it shall, at the same time as it notifies the Buyer that it does not accept such draft Completion Accounts and Statement, set out in such notice in writing its reasons in reasonable detail for such non-acceptance and specify the adjustments which, in its opinion, should be made to the draft Completion Accounts and the Statement in order to comply with the requirements of this Agreement; and
(b) the parties shall use reasonable endeavours to:
(i) discuss the objections of the Seller; and
(ii) try to reach agreement upon the adjustments (if any) required to be made to the draft Completion Accounts and the Statement in each case, any event within 20 Business Days of the Seller’s notice of non-acceptance pursuant to clause 7.2 (or such other time as the parties may agree in writing).
7.4 If the Seller is satisfied with the draft Completion Accounts and the Statement (either as originally submitted or after adjustments agreed between the Seller and the Buyer) or if the Seller fails to notify the Buyer of its non-acceptance audited financials of the draft Completion Accounts and the Statement within the 45 day period referred to in clause 7.2, then the draft Completion Accounts and the Statement (incorporating any agreed adjustments) shall constitute the Completion Accounts and the Statement for the purposes of this Agreement.
7.5 If the Seller and the Buyer do not reach agreement within the 20 Business Day period referred to in clause 7.3(b) (or such other time as the parties may agree in writing) then the matters in dispute and in respect of which reasonable details have been provided Companies being signed off by the Seller relevant statutory auditors, it shall deliver to the Buyer at the time that it notified the Buyer that it does not accept the Sellers a draft consolidated Completion Accounts and the Statement in accordance with clause 7.3(a) (and only those) shall be referred for determination by an expert to be agreed by the Seller and the Buyer, and failing such agreement by the Seller and the Buyer within 10 Business Days following the end of the 20 Business Day period referred to in clause 7.3(b) (or such other time as the Seller and the Buyer may agree in writing), on the application of either the Buyer or the Seller by an expert appointed by the President of the Institute of Chartered Accountants of England and Wales from time to time Balance Sheet (the “Firm”). The following provisions shall apply to such determination:
(aDraft Completion Balance Sheet") of the Buyer and/or the Buyer’s accountants Group and the Seller and/or the Seller’s accountants shall each promptly (and in any event within such time frame as reasonably enables the Firm to make its decision a Draft Statement of EBITDA will be prepared by it in accordance with the time frame set down in clause 7.5(b)) prepare and deliver Accounting Principles. The Purchaser shall instruct a firm of independent accountants of international repute to the Firm a written statement on the matters in dispute (together with the relevant documents);
(b) the Firm shall be requested to give its decision within 20 Business Days (or such later date as the Buyer and the Seller and the Firm agree in writing) of the confirmation and acknowledgment by the Firm of its appointment hereunder;
(c) in giving such determination, the Firm shall state what adjustments (if any) are necessary to review the draft Completion Accounts Balance Sheet and then issue a certificate with the Draft Completion Balance Sheet and Draft Statement of EBITDA confirming that the Draft Completion Balance Sheet and the Draft Statement in respect of the matters in dispute in order to comply with the requirements of this Agreement and shall give its reasons therefor;
(d) the Firm shall act as an expert (and not as an arbitrator) in making any such determination, and the Completion Accounts and Statement, as adjusted by the Firm shall be deemed to be finally determined and shall be final and binding on the parties (in the absence of manifest error);
(e) each party shall bear the costs and expenses of all counsel and other advisers, witnesses and employees retained by it and the costs and the expenses of the Firm shall be borne between the Seller and the Buyer in such proportions as the Firm shall in its discretion determine or, in the absence of any such determination, equally between the Seller and the Buyer.
7.6 When the Seller and the Buyer reach (or pursuant to clause 7.4 are deemed to reach) agreement on the Completion Accounts and the Statement or when the Completion Accounts and the Statement are finally determined at any stage EBITDA has been prepared substantially in accordance with the procedures set out in this clause 7 (including clause 7.5):Accounting Principles.
(a) 2.3 The Sellers and their accountants shall be entitled to review the Draft Completion Accounts Balance Sheet and the Draft Statement of EBITDA for a period of 30 Business Days following receipt from the Purchaser.
2.4 The Purchasers shall provide or procure the provision of, to the Sellers and their accountants such information as so agreed or determined the Sellers and their accountants shall be reasonably require and allow the Sellers and their accountants access to the Companies and their books and records (at reasonable times and upon reasonable notice), and procure access to the auditors, including, without limitation, access to the auditors’ working papers in each case insofar as is reasonably required for the analysis and verification of the Draft Completion Accounts Balance Sheet and the Draft Statement for the purposes of this Agreement and shall be final and binding on the parties; and
(b) the Working Capital Amount, the Debt and the Cash, in each case, shall be as set out in the StatementEBITDA.
7.7 Subject to any rule of law or any regulatory body or any provision of any contract entered into prior to the date of this Agreement to the contrary, the Seller shall procure that each member of the Seller’s Group shall, and the Buyer shall procure that the Group shall, promptly provide each other, their respective advisers, the Firm, the Buyer’s accountants and the Seller’s accountants with all information (in their respective possession or control) relating to the operations of the Seller’s Group and/or the Group, as the case may be, including access at all reasonable times to all the Seller’s Group and Group employees, books, records, and other relevant information and all co-operation and assistance, as may in any such case be reasonably required to:
(a) enable the production of the Completion Accounts and the Statement; and
(b) enable the Firm to determine the Completion Accounts and the Statement. The Seller and the Buyer hereby authorise each other, their respective advisers and the Firm to take copies of all information which they have agreed to provide under this clause 7.7.
7.8 Subject to clause 7.5(e), the Seller and the Buyer shall each bear their own costs and expenses arising out of the preparation and review of the Completion Accounts and Statement.
Appears in 1 contract
Completion Accounts. 7.1 The Buyer Sellers shall procure use their reasonable endeavours to ensure that the Group prepares drafts a draft of the Completion Accounts is prepared as soon as possible after Completion and the Statement in the format set out in schedule 6 (the “Statement”), on the basis of the accounting policies and procedures set out in schedule 7 and delivers them delivered to the Seller within 75 days of Buyer on or before the date falling 20 Business Days after Completion, together with the Net Current Liability Statement signed by the Sellers.
7.2 The Seller Completion Accounts shall notify be drawn up in accordance with the Buyer accounting bases, methods and policies set out in writing within 45 days part 2 of receipt of such schedule 9.
7.3 The draft Completion Accounts and the calculation of the Net Current Liability Value set out in the Net Current Liability Statement whether or not it accepts shall be deemed agreed by the draft Buyer on the date falling 10 Business Days after the date on which those documents are first delivered to the Buyer and shall be final and binding on the parties for all purposes (and shall respectively constitute the Completion Accounts and Statement for the purposes of this AgreementAgreement and the Net Current Liability Value for the purposes of clause 6), unless during that period the Buyer gives notice to the Sellers that it disagrees with the calculation of the Net Current Liability included in the Net Current Liability Statement. Any notice so given shall include reasonable details (so far as practicable) of the reasons for any disagreement and any suggested adjustment, together with reasonable supporting evidence for each adjustment, including any relevant working papers.
7.3 7.4 If the Seller notifies any notice is so served by the Buyer that it does not accept during such draft Completion Accounts and Statement:
(a) it shall10 Business Day period, at the same time as it notifies the Buyer that it does not accept such draft Completion Accounts and Statement, set out the Sellers shall attempt in such notice good faith to resolve any matters in writing its reasons in reasonable detail for such non-acceptance dispute and specify the adjustments which, in its opinion, should be made to the draft agree a final form of Completion Accounts and the Statement in order to comply with the requirements of this Agreement; and
(b) the parties shall use reasonable endeavours to:
(i) discuss the objections calculation of the Seller; and
(ii) try to reach agreement upon Net Current Liability Value on or before the adjustments (if any) required to be made to date falling 10 Business Days after the draft date on which the Sellers receive that notice. The Completion Accounts and the Statement in each case, within 20 Business Days calculation of the Seller’s notice of non-acceptance pursuant to clause 7.2 (or such other time as Net Current Liability Value so agreed by them shall be final and binding on the parties may agree in writing).
7.4 If the Seller is satisfied with the draft Completion Accounts for all purposes (and the Statement (either as originally submitted or after adjustments agreed between the Seller and the Buyer) or if the Seller fails to notify the Buyer of its non-acceptance of the draft Completion Accounts and the Statement within the 45 day period referred to in clause 7.2, then the draft Completion Accounts and the Statement (incorporating any agreed adjustments) shall respectively constitute the Completion Accounts for the purposes of this Agreement and the Statement Net Current Liability Value for the purposes of clause 6). In the absence of agreement between the Buyer and the Sellers within that time period, the Independent Accountants shall be instructed to deliver a determination of the matters in dispute and a calculation of the amount of the Net Current Liability Value and revised Completion Accounts adjusted only to take account of the matters determined by them. As so revised, the Completion Accounts shall then constitute the Completion Accounts for the purposes of this Agreement.
7.5 If the Seller and the Buyer do not reach agreement within the 20 Business Day period referred to in clause 7.3(b) (or such other time as the parties may agree in writing) then the matters in dispute and in respect of which reasonable details have been provided by the Seller Each party shall promptly provide to the Buyer at other or the time that it notified other’s accountants or professional advisers (and to the Buyer that it does not accept Independent Accountants) all such documents and information as may reasonably be requested for the purpose of preparing or reviewing the Completion Accounts and the Statement in accordance with clause 7.3(a) (and only those) shall be referred for determination by an expert to be agreed by the Seller and the Buyer, and failing such agreement by the Seller and the Buyer within 10 Business Days following the end of the 20 Business Day period referred to in clause 7.3(b) (or such other time as the Seller and the Buyer may agree in writing), on the application of either the Buyer or the Seller by an expert appointed by the President of the Institute of Chartered Accountants of England and Wales from time to time (the “Firm”). The following provisions shall apply to such determination:
(a) the Buyer and/or the Buyer’s accountants and the Seller and/or the Seller’s accountants shall each promptly (and in any event within such time frame as reasonably enables the Firm to make its decision in accordance with the time frame set down in clause 7.5(b)) prepare and deliver to the Firm a written statement on the matters in dispute (together with the relevant documents);
(b) the Firm shall be requested to give its decision within 20 Business Days (or such later date as the Buyer and the Seller and the Firm agree in writing) of the confirmation and acknowledgment by the Firm of its appointment hereunder;
(c) in giving such determination, the Firm shall state what adjustments (if any) are necessary to the draft Completion Accounts and the Statement in respect of the matters in dispute in order to comply with the requirements of this Agreement and shall give its reasons therefor;
(d) the Firm shall act as an expert (and not as an arbitrator) in making any such determination, and the Completion Accounts and Statement, as adjusted by the Firm shall be deemed to be finally determined and shall be final and binding on the parties (in the absence of manifest error);
(e) each party shall bear the costs and expenses of all counsel and other advisers, witnesses and employees retained by it and the costs and the expenses of the Firm shall be borne between the Seller and the Buyer in such proportions as the Firm shall in its discretion determine or, in the absence of any such determination, equally between the Seller and the Buyer.
7.6 When the Seller and the Buyer reach (or pursuant to clause 7.4 are deemed to reach) agreement on the Completion Accounts and the Statement or when the Completion Accounts and the Statement are finally determined at any stage in accordance with the procedures set out in this clause 7 (including clause 7.5):
(a) the Completion Accounts and the Statement as so agreed or determined shall be the Completion Accounts and the Statement for the purposes of this Agreement and shall be final and binding on the parties; and
(b) the Working Capital Amount, the Debt and the Cash, in each case, shall be as set out in the Statement.
7.7 Subject to any rule of law or any regulatory body or any provision of any contract entered into prior to the date of this Agreement to the contrary, the Seller shall procure that each member of the Seller’s Group shall, and the Buyer shall procure that the Group shall, promptly provide each other, their respective advisers, the Firm, the Buyer’s accountants and the Seller’s accountants with all information (in their respective possession or control) relating to the operations of the Seller’s Group and/or the Group, as the case may be, including access at all reasonable times to all the Seller’s Group and Group employees, books, records, and other relevant information and all co-operation and assistance, as may in any such case be reasonably required to:
(a) enable the production of the Completion Accounts and the Statement; and
(b) enable the Firm to determine the Completion Accounts and the Net Current Liability Statement. The Seller and the Buyer hereby authorise each otherparties’ obligations under this clause shall, their respective advisers and the Firm without limitation, extend to take providing access to or copies of all information which they have agreed to provide working papers in their possession or under this clause 7.7.
7.8 Subject to clause 7.5(e), their control (other than those created by their respective accountants) created in the Seller and the Buyer shall each bear their own costs and expenses arising out course of the preparation and and/or review of the Completion Accounts and/or Net Current Liability Statement, together (in the case of the Buyer) with extracts from the Company’s and Statementthe Business’s accounting records to which the working papers relate or from which the working papers have drawn information, and access upon reasonable notice and during normal working hours to relevant personnel, and to relevant records and information within the possession or under the control, of the relevant party.
Appears in 1 contract
Sources: Agreement for the Sale and Purchase of Shares (TRM Corp)
Completion Accounts. 7.1 5.1 The Buyer Completion Accounts shall procure that consist of a consolidated statement of financial position of the Target Group prepares drafts as at the close of business on 31 August 2017 and a consolidated statement of comprehensive income of the Target Group in respect of the Completion Period, together with a net assets statement setting out the amount of the Actual Net Assets (as at the close of business on 31 August 2017) as derived from the Completion Accounts. The Completion Accounts must be prepared in accordance with Part A and Part B of Schedule 8, a pro forma for which is included in Part C of Schedule 8.
5.2 As soon as possible after Completion and in any event on or before the Statement in the format set out in schedule 6 date falling 30 Business Days after Completion (the “Statement”Completion Accounts Deadline), on the basis of the accounting policies and procedures set out in schedule 7 and delivers them to the Seller within 75 days of Completion.
7.2 The Seller Sellers shall notify the Buyer in writing within 45 days of receipt of such draft Completion Accounts and the Statement whether or not it accepts prepare the draft Completion Accounts and Statement for the purposes of this Agreement.
7.3 If the Seller notifies deliver them to the Buyer that it does not accept for review. The Buyer shall give (and shall procure each Target Group Company shall give) such assistance and access to information as the Sellers (or their advisers) may reasonably require in connection with the preparation of the draft Completion Accounts and Statement:during such period.
(a) it shall, at 5.3 The Buyer may on or before the same time as it notifies date falling 20 Business Days after submission to the Buyer that it does not accept such of the draft Completion Accounts and Statement(the Response Deadline), set out in such notice notify the Sellers' Representative (on behalf of all the Sellers) in writing its reasons (the Response Notice) that the Buyer does not agree with the draft Completion Accounts (and/or the net assets statement setting out the amount of the Actual Net Assets as at the close of business on 31 August 2017), setting out in reasonable detail for such non-acceptance the items in dispute and specify the adjustments (with a suitable explanation) which, in its opinionthe opinion of the Buyer is required to be made, should and the amount of the Actual Net Assets calculated by the Buyer after giving effect to the items detailed in the Response Notice (the Response ▇▇▇ Amount). The items not identified in the Response Notice as being in dispute will be made deemed to be agreed. If no Response Notice is received by the Sellers’ Representative on or before the Response Deadline, the Buyer will be deemed to have accepted the draft Completion Accounts as being in accordance with this agreement, and the draft Completion Accounts and the Statement amount of the Actual Net Assets stated in order them will be final and binding on the parties.
5.4 If a Response Notice is received by the Sellers' Representative on or before the Response Deadline, the Sellers' Representative and the Buyer will have until the date falling 20 Business Days after the date on which the Response Notice is received (the Resolution Date) to comply agree to accept the Response ▇▇▇ Amount or in the alternative agree the items in dispute and therefore the Completion Accounts and the amount of the Actual Net Assets. The accepted Response ▇▇▇ Amount, or the amount of the Actual Net Assets so agreed, will (in the absence of fraud or manifest error) be final and binding on the parties.
5.5 If a Response Notice is received by the Sellers’ Representative on or before the Response Deadline and the draft Completion Accounts and/or the amount of the Actual Net Assets does not become final and binding under clause 5.4 by the Resolution Date then the matters outstanding or in dispute must be referred to the Expert for final decision in accordance with the requirements clause 6 of this Agreement; and
(b) the parties shall use reasonable endeavours toagreement. The Expert will decide:
(i) discuss 5.5.1 the objections of the Seller; and
(ii) try to reach agreement upon the adjustments matters outstanding or in dispute and therefore what revisions (if any) are required to be made to the draft Completion Accounts in order for them to comply with this clause 5 and Schedule 8; and
5.5.2 the amount of the Actual Net Assets and the Statement in each case, within 20 Business Days amount of the Seller’s notice of non-acceptance pursuant to clause 7.2 (or such other time as the parties may agree in writing)Net Asset Shortfall.
7.4 If 5.6 Each party must procure (so far as such party is able) that the Seller is satisfied with Sellers' Representative and the draft Buyer and their respective Accountants are given any documents and information as are reasonably required by the other (but not including advice on the Completion Accounts and given to a party by its own Accountants) for the Statement (either as originally submitted purpose of preparing or after adjustments agreed between the Seller and the Buyer) or if the Seller fails to notify the Buyer of its non-acceptance of the draft Completion Accounts and the Statement within the 45 day period referred to in clause 7.2, then the draft Completion Accounts and the Statement (incorporating any agreed adjustments) shall constitute reviewing the Completion Accounts and access on reasonable notice and during normal working hours to relevant personnel, records and information in the Statement for control of the purposes of this Agreementrelevant party.
7.5 If the Seller 5.7 The Sellers and the Buyer do not reach agreement within will each pay the 20 Business Day period referred to in clause 7.3(b) (costs of their own Accountants.
5.8 No claim which the Buyer or such other time as any Target Group Company may have against the parties may agree in writing) then the matters in dispute and Sellers in respect of which reasonable details have been provided any breach of any of the Warranties or any other provision of this agreement will be affected, waived or limited by the Seller determination of the Actual Net Assets under this agreement except to the extent provided in Schedule 4 (Sellers’ Limits) or the Tax Schedule.
5.9 The Net Asset Shortfall amount shall be calculated as follows:
5.9.1 if the amount of the Actual Net Assets (as agreed or determined in accordance with this clause 5 and Schedule 8) is an amount which is equal to, or in excess of, the Target Net Asset Amount, then the amount of the Net Asset Shortfall shall be zero, and no payment shall be made to the Buyer at pursuant to clause 3.5; or
5.9.2 if the time that it notified amount of the Buyer that it does not accept the Completion Accounts and the Statement Actual Net Assets (as agreed or determined in accordance with this clause 7.3(a) (5 and only those) Schedule 8) is an amount which is less than the Target Net Asset Amount, then the amount of the Net Asset Shortfall shall be referred for determination the amount by an expert to be agreed by which the Seller and the Buyer, and failing such agreement by the Seller and the Buyer within 10 Business Days following the end amount of the 20 Business Day period referred to in clause 7.3(b) Actual Net Assets (as agreed or such other time as the Seller and the Buyer may agree in writing), on the application of either the Buyer or the Seller by an expert appointed by the President of the Institute of Chartered Accountants of England and Wales from time to time (the “Firm”). The following provisions shall apply to such determination:
(a) the Buyer and/or the Buyer’s accountants and the Seller and/or the Seller’s accountants shall each promptly (and in any event within such time frame as reasonably enables the Firm to make its decision determined in accordance with the time frame set down in clause 7.5(b)) prepare and deliver to the Firm a written statement on the matters in dispute (together with the relevant documents);
(b) the Firm shall be requested to give its decision within 20 Business Days (or such later date as the Buyer and the Seller and the Firm agree in writing) of the confirmation and acknowledgment by the Firm of its appointment hereunder;
(c) in giving such determination, the Firm shall state what adjustments (if any) are necessary to the draft Completion Accounts and the Statement in respect of the matters in dispute in order to comply with the requirements of this Agreement and shall give its reasons therefor;
(d) the Firm shall act as an expert (and not as an arbitrator) in making any such determination, and the Completion Accounts and Statement, as adjusted by the Firm shall be deemed to be finally determined and shall be final and binding on the parties (in the absence of manifest error);
(e) each party shall bear the costs and expenses of all counsel and other advisers, witnesses and employees retained by it and the costs and the expenses of the Firm shall be borne between the Seller and the Buyer in such proportions as the Firm shall in its discretion determine or, in the absence of any such determination, equally between the Seller and the Buyer.
7.6 When the Seller and the Buyer reach (or pursuant to clause 7.4 are deemed to reach) agreement on the Completion Accounts and the Statement or when the Completion Accounts and the Statement are finally determined at any stage in accordance with the procedures set out in this clause 7 (including clause 7.5):
(a) 5 and Schedule 8) is less than the Completion Accounts and the Statement as so agreed or determined shall be the Completion Accounts and the Statement for the purposes of this Agreement and shall be final and binding on the parties; and
(b) the Working Capital Target Net Asset Amount, the Debt and the Cash, in each case, shall be as set out in the Statement.
7.7 Subject to any rule of law or any regulatory body or any provision of any contract entered into prior to the date of this Agreement to the contrary, the Seller shall procure that each member of the Seller’s Group shall, and the Buyer shall procure that the Group shall, promptly provide each other, their respective advisers, the Firm, the Buyer’s accountants and the Seller’s accountants with all information (in their respective possession or control) relating to the operations of the Seller’s Group and/or the Group, as the case may be, including access at all reasonable times to all the Seller’s Group and Group employees, books, records, and other relevant information and all co-operation and assistance, as may in any such case be reasonably required to:
(a) enable the production of the Completion Accounts and the Statement; and
(b) enable the Firm to determine the Completion Accounts and the Statement. The Seller and the Buyer hereby authorise each other, their respective advisers and the Firm to take copies of all information which they have agreed to provide under this clause 7.7.
7.8 Subject to clause 7.5(e), the Seller and the Buyer shall each bear their own costs and expenses arising out of the preparation and review of the Completion Accounts and Statement.
Appears in 1 contract
Sources: Agreement to Buy the Shares in CBS Butler Holdings Limited (Staffing 360 Solutions, Inc.)
Completion Accounts. 7.1 8.1 The Seller undertakes to the Buyer shall to procure that accounts of the Group prepares drafts of Company for the Completion Accounts and Period shall be prepared in accordance with the Statement in the format provisions set out in schedule 6 (the “Statement”), on the basis of 8 and otherwise in accordance with the accounting policies of the Company and procedures set out otherwise in schedule 7 accordance with all relevant statutes and delivers generally accepted accounting practices and principles, SSAPs and Financial Reporting Standards as soon as possible after, and in any event no later than 14 days after the date of Completion. In preparing the profit and loss account, balance sheet and notes no account shall be taken of an event taking place after Completion.
8.2 All amounts and results contained in the accounts for the Completion Accounts Period (including, without limitation, the relevant amount of Net Assets) shall be calculated and denominated in US dollars, but to the extent that any such amounts and/or results are denominated in pounds sterling ((British Pound)),for the purposes of calculating the Net Assets such amounts and/or results shall be converted into US dollars at the Dollar Exchange Rate.
8.3 Immediately following the preparation of the Company's accounts, the Seller shall deliver copies of them to the Seller within 75 days Buyer together with a schedule ("Schedule") showing the calculation of CompletionNet Assets for the Completion Accounts Period.
7.2 8.4 The Buyer shall have 10 Business Days from the date of delivery to it of the Company's accounts to review the same (the "Review Period").
8.5 So as to enable the Buyer to verify that the Company's accounts and Schedule have been prepared in accordance with the provisions of this agreement the Seller agrees to give the Buyer(and any advisers appointed by the Buyer for this purpose (the "Buyer's Accountants")) full access to and explanations of any of the working papers of the Seller and to any records and documents the Buyer (and the Buyer's Accountants) may from time to time reasonably request.
8.6 The Buyer shall on or before the expiry of the Review Period notify the Buyer Seller in writing within 45 days that it agrees or disagrees with the Schedule. For the avoidance of receipt of such draft Completion Accounts and doubt, in the Statement whether or event that the Buyer does not serve any notice on the Seller in accordance with this clause 8.6, it accepts shall be deemed to agree with the draft Completion Accounts and Statement for the purposes of this AgreementSchedule.
7.3 8.7 If the Seller Buyer notifies the Buyer Seller in accordance with clause 8.6 that it does not accept such draft Completion Accounts and Statement:
(a) it shall, at the same time as it notifies the Buyer that it does not accept such draft Completion Accounts and Statement, set out in such notice in writing its reasons in reasonable detail for such non-acceptance and specify the adjustments which, in its opinion, should be made to the draft Completion Accounts and the Statement in order to comply disagrees with the requirements of this Agreement; and
(b) Schedule then the parties shall use their respective reasonable endeavours to:
(i) discuss to agree the objections of the Seller; and
(ii) try to reach agreement upon the adjustments (if any) required to be made to the draft Completion Accounts and the Statement in each case, Schedule within 20 Business Days of the Seller’s notice of non-acceptance pursuant to clause 7.2 7days (or such other time longer period as the parties may agree in writingagree).
7.4 If , failing which the Seller is satisfied with the draft Completion Accounts and the Statement (either as originally submitted or after adjustments agreed between the Seller and the Buyer) or if the Seller fails to notify the Buyer of its non-acceptance of the draft Completion Accounts and the Statement within the 45 day period disagreement shall be referred to in clause 7.2, then an independent accountant (the draft Completion Accounts and "Independent Accountant") who shall determine the Statement (incorporating any agreed adjustments) shall constitute the Completion Accounts and the Statement for the purposes of this Agreement.
7.5 If the Seller and the Buyer do not reach agreement within the 20 Business Day period referred to in clause 7.3(b) (or such other time as the parties may agree in writing) then the matters matter in dispute and issue his certificate in respect of which reasonable details have been provided by the Seller to the Buyer at the time that it notified the Buyer that it does not accept the Completion Accounts and the Statement in accordance with clause 7.3(a) (and only those) respect. The Independent Accountant shall be referred for determination by an expert to be agreed by the Seller and the Buyer, and failing such agreement nominated jointly by the Seller and the Buyer within 10 Business Days following or failing a nomination shall be appointed at the end of the 20 Business Day period referred to in clause 7.3(b) (or such other time as the Seller and the Buyer may agree in writing), on the application request of either the Buyer or the Seller by an expert appointed at any time by the President for the time being of the Institute of Chartered Accountants of in England and Wales from time to time (Wales. In particular the “Firm”). The following provisions shall apply to such determination:
(a) Independent Accountant shall, where Net Assets is in dispute, determine the Buyer and/or Net Assets for the Buyer’s accountants Completion Accounts Period and the Seller and/or the Seller’s accountants shall each promptly (and in any event within such time frame give his certificate as reasonably enables the Firm to make its decision in accordance with the time frame set down in clause 7.5(b)) prepare and deliver to the Firm a written statement on the matters in dispute (together with the relevant documents);Net Assets.
(b) the Firm 8.8 The Independent Accountant shall be requested instructed to give its decision deliver his certificate within 20 Business Days 30 days of his nomination or appointment (or such later date longer period as the Buyer and the Seller may agree) and the Firm agree in writing) of the confirmation and acknowledgment by the Firm of its appointment hereunder;
(c) in giving such determination, the Firm shall state what adjustments (if any) are necessary to the draft Completion Accounts and the Statement in respect of the matters in dispute in order to comply with the requirements of this Agreement and shall give its reasons therefor;
(d) the Firm shall act as an expert (and not as an arbitratorarbitrator and (in the absence of obvious error) his decision (which shall be communicated in making any such determination, writing to the Seller and the Completion Accounts and Statement, as adjusted by the Firm shall be deemed to be finally determined and Buyer) shall be final and binding on the parties (in the absence of manifest error);
(e) each party shall bear the costs and expenses of all counsel and other advisers, witnesses and employees retained by it Seller and the Buyer. The fees and costs and the expenses of the Firm Independent Accountant shall be borne between payable and paid by the Seller and the Buyer in such the proportions as the Firm shall in its discretion determine or, Independent Accountant directs and in the absence of any such determination, equally between direction his fees and costs shall be borne as to fifty per cent by the Seller Buyer and as to fifty per cent by the BuyerSeller.
7.6 When the 8.9 The Seller and the Buyer reach (or pursuant to clause 7.4 are deemed to reach) agreement on the Completion Accounts and the Statement or when the Completion Accounts and the Statement are finally determined at any stage in accordance with the procedures set out in this clause 7 (including clause 7.5):
(a) the Completion Accounts and the Statement as so agreed or determined shall be the Completion Accounts and the Statement for the purposes of this Agreement and shall be final and binding on the parties; and
(b) the Working Capital Amount, the Debt and the Cash, in each case, shall be as set out in the Statement.
7.7 Subject to any rule of law or any regulatory body or any provision of any contract entered into prior to the date of this Agreement to the contrary, the Seller shall procure that each member of the Seller’s Group shall, and the Buyer shall procure that the Group shall, promptly provide each other, their respective advisers, the Firm, the Buyer’s accountants all records and the Seller’s accountants with all working papers and other information (in their respective possession or control) relating under their control as may be reasonably required by the Independent Accountant to enable him to resolve the operations dispute shall be made available as soon as possible on request.
8.10 The costs of the Seller’s Group and/or 's Accountants in connection with the Group, as the case may be, including access at all reasonable times to all the Seller’s Group and Group employees, books, records, and other relevant information and all co-operation and assistance, as may in any such case be reasonably required to:
(a) enable the production determination of the Completion Accounts and Net Assets shall, except where the Statement; and
(b) enable the Firm to determine the Completion Accounts and the Statement. The Seller and the Buyer hereby authorise each otherIndependent Accountant otherwise decides, their respective advisers and the Firm to take copies of all information which they have agreed to provide under this clause 7.7.
7.8 Subject to clause 7.5(e), be paid by the Seller and the Buyer shall each bear their own equivalent costs and expenses arising out of the preparation and review Buyer's Accountants shall be paid by the Buyer with the exception only of those costs properly attributed to their audit responsibilities which shall be paid by the Completion Accounts and StatementCompany.
Appears in 1 contract
Sources: Agreement for the Sale and Purchase of Shares (Geoworks /Ca/)
Completion Accounts. 7.1 The Buyer Seller shall procure use its reasonable endeavours to ensure that the Group prepares drafts a draft of the Completion Accounts is prepared as soon as possible after Completion and the Statement in the format set out in schedule 6 (the “Statement”), on the basis of the accounting policies and procedures set out in schedule 7 and delivers them delivered to the Seller within 75 days of Buyer on or before the date falling 20 Business Days after Completion, together with the Net Current Liability Statement signed by the Seller.
7.2 The Seller Completion Accounts shall notify be drawn up in accordance with the Buyer accounting bases, methods and policies set out in writing within 45 days part 2 of receipt of such schedule 10.
7.3 The draft Completion Accounts and the calculation of the Net Current Liability Value set out in the Net Current Liability Statement whether or not it accepts shall be deemed agreed by the draft Buyer on the date falling 10 Business Days after the date on which those documents are first delivered to the Buyer and shall be final and binding on the parties for all purposes (and shall respectively constitute the Completion Accounts and Statement for the purposes of this AgreementAgreement and the Net Current Liability Value for the purposes of clause 6), unless during that period the Buyer gives notice to the Seller that it disagrees with the calculation of the Net Current Liability included in the Net Current Liability Statement. Any notice so given shall include reasonable details (so far as practicable) of the reasons for any disagreement and any suggested adjustment, together with reasonable supporting evidence for each adjustment, including any relevant working papers.
7.3 7.4 If any notice is so served by the Buyer during such 10 Business Day period, the Buyer and the Seller notifies the Buyer that it does not accept such draft Completion Accounts shall attempt in good faith to resolve any matters in dispute and Statement:
(a) it shall, at the same time as it notifies the Buyer that it does not accept such draft Completion Accounts and Statement, set out in such notice in writing its reasons in reasonable detail for such non-acceptance and specify the adjustments which, in its opinion, should be made to the draft agree a final form of Completion Accounts and the Statement in order to comply with the requirements of this Agreement; and
(b) the parties shall use reasonable endeavours to:
(i) discuss the objections calculation of the Seller; and
(ii) try to reach agreement upon Net Current Liability Value on or before the adjustments (if any) required to be made to date falling 10 Business Days after the draft date on which the Sellers receive that notice. The Completion Accounts and the Statement in each case, within 20 Business Days calculation of the Seller’s notice of non-acceptance pursuant to clause 7.2 (or such other time as Net Current Liability Value so agreed by them shall be final and binding on the parties may agree in writing).
7.4 If the Seller is satisfied with the draft Completion Accounts for all purposes (and the Statement (either as originally submitted or after adjustments agreed between the Seller and the Buyer) or if the Seller fails to notify the Buyer of its non-acceptance of the draft Completion Accounts and the Statement within the 45 day period referred to in clause 7.2, then the draft Completion Accounts and the Statement (incorporating any agreed adjustments) shall respectively constitute the Completion Accounts for the purposes of this Agreement and the Statement Net Current Liability Value for the purposes of clause 6). In the absence of agreement between the Buyer and the Seller within that time period, the Independent Accountants shall be instructed to deliver a determination of the matters in dispute and a calculation of the amount of the Net Current Liability Value and revised Completion Accounts adjusted only to take account of the matters determined by them. As so revised, the Completion Accounts shall then constitute the Completion Accounts for the purposes of this Agreement.
7.5 If the Seller and the Buyer do not reach agreement within the 20 Business Day period referred to in clause 7.3(b) (or such other time as the parties may agree in writing) then the matters in dispute and in respect of which reasonable details have been provided by the Seller Each party shall promptly provide to the Buyer at other or the time that it notified other’s accountants or professional advisers (and to the Buyer that it does not accept Independent Accountants) all such documents and information as may reasonably be requested for the purpose of preparing or reviewing the Completion Accounts and the Statement in accordance with clause 7.3(a) (and only those) shall be referred for determination by an expert to be agreed by the Seller and the Buyer, and failing such agreement by the Seller and the Buyer within 10 Business Days following the end of the 20 Business Day period referred to in clause 7.3(b) (or such other time as the Seller and the Buyer may agree in writing), on the application of either the Buyer or the Seller by an expert appointed by the President of the Institute of Chartered Accountants of England and Wales from time to time (the “Firm”). The following provisions shall apply to such determination:
(a) the Buyer and/or the Buyer’s accountants and the Seller and/or the Seller’s accountants shall each promptly (and in any event within such time frame as reasonably enables the Firm to make its decision in accordance with the time frame set down in clause 7.5(b)) prepare and deliver to the Firm a written statement on the matters in dispute (together with the relevant documents);
(b) the Firm shall be requested to give its decision within 20 Business Days (or such later date as the Buyer and the Seller and the Firm agree in writing) of the confirmation and acknowledgment by the Firm of its appointment hereunder;
(c) in giving such determination, the Firm shall state what adjustments (if any) are necessary to the draft Completion Accounts and the Statement in respect of the matters in dispute in order to comply with the requirements of this Agreement and shall give its reasons therefor;
(d) the Firm shall act as an expert (and not as an arbitrator) in making any such determination, and the Completion Accounts and Statement, as adjusted by the Firm shall be deemed to be finally determined and shall be final and binding on the parties (in the absence of manifest error);
(e) each party shall bear the costs and expenses of all counsel and other advisers, witnesses and employees retained by it and the costs and the expenses of the Firm shall be borne between the Seller and the Buyer in such proportions as the Firm shall in its discretion determine or, in the absence of any such determination, equally between the Seller and the Buyer.
7.6 When the Seller and the Buyer reach (or pursuant to clause 7.4 are deemed to reach) agreement on the Completion Accounts and the Statement or when the Completion Accounts and the Statement are finally determined at any stage in accordance with the procedures set out in this clause 7 (including clause 7.5):
(a) the Completion Accounts and the Statement as so agreed or determined shall be the Completion Accounts and the Statement for the purposes of this Agreement and shall be final and binding on the parties; and
(b) the Working Capital Amount, the Debt and the Cash, in each case, shall be as set out in the Statement.
7.7 Subject to any rule of law or any regulatory body or any provision of any contract entered into prior to the date of this Agreement to the contrary, the Seller shall procure that each member of the Seller’s Group shall, and the Buyer shall procure that the Group shall, promptly provide each other, their respective advisers, the Firm, the Buyer’s accountants and the Seller’s accountants with all information (in their respective possession or control) relating to the operations of the Seller’s Group and/or the Group, as the case may be, including access at all reasonable times to all the Seller’s Group and Group employees, books, records, and other relevant information and all co-operation and assistance, as may in any such case be reasonably required to:
(a) enable the production of the Completion Accounts and the Statement; and
(b) enable the Firm to determine the Completion Accounts and the Net Current Liability Statement. The Seller and the Buyer hereby authorise each otherparties’ obligations under this clause shall, their respective advisers and the Firm without limitation, extend to take providing access to or copies of all information which they have agreed to provide working papers in their possession or under this clause 7.7.
7.8 Subject to clause 7.5(e), their control (other than those created by their respective accountants) created in the Seller and the Buyer shall each bear their own costs and expenses arising out course of the preparation and and/or review of the Completion Accounts and/or Net Current Liability Statement, together (in the case of the Buyer) with extracts from the Seller’s accounting records to which the working papers relate or from which the working papers have drawn information, and Statementaccess upon reasonable notice and during normal working hours to relevant personnel, and to relevant records and information within the possession or under the control, of the relevant party.
Appears in 1 contract
Sources: Agreement for the Sale and Purchase of Business and Assets (TRM Corp)
Completion Accounts. 7.1 The Buyer 6.1 RoweCom and ▇▇▇▇▇▇ shall use all reasonable endeavours to procure that that, promptly after Completion, Completion Accounts together with the Group prepares drafts statement (the "Statement") of the Working Capital Amount, as at Completion, are prepared in accordance with the provisions of this clause 6.
6.2 The Completion Accounts and the Statement in the format set out in schedule 6 (the “Statement”), shall be prepared on the basis of the accounting policies and procedures set out in schedule 7 9.
6.3 ▇▇▇▇▇▇ shall arrange for the Completion Accounts and delivers them the Statement to be prepared by the Seller Group's employees with a view to such draft Completion Accounts being delivered to RoweCom within 75 days 40 Business Days of Completion.
7.2 The Seller 6.4 RoweCom shall notify the Buyer in writing ▇▇▇▇▇▇ within 45 days 20 Business Days of receipt of such draft Completion Accounts and the Statement whether or not it accepts the draft Completion Accounts and Statement them for the purposes of this Agreementagreement.
7.3 6.5 If the Seller RoweCom notifies the Buyer ▇▇▇▇▇▇ that it does not accept such draft Completion Accounts and Statement:Statement:-
(a) it shall, at the same time as it notifies the Buyer that it does not accept such draft Completion Accounts and Statementtime, set out in such a notice in writing its reasons in reasonable detail full for such non-acceptance and specify the adjustments which, in its opinion, should be made to the draft Completion Accounts and the Statement in order to comply with the requirements of this Agreementagreement and deliver a copy of such notice to ▇▇▇▇▇▇; and
(b) the parties shall use all reasonable endeavours to:
(i) to meet and discuss the objections of the Seller; and
(ii) try RoweCom and to reach agreement upon the adjustments (if any) required to be made to the draft Completion Accounts and the Statement in each case, within 20 Business Days of the Seller’s notice of non-acceptance pursuant to clause 7.2 (or such other time as the parties may agree in writing)Statement.
7.4 6.6 If the Seller RoweCom is satisfied with the draft Completion Accounts and the Statement (either as originally submitted or after adjustments agreed between the Seller ▇▇▇▇▇▇ and the BuyerRoweCom) or if the Seller RoweCom fails to notify the Buyer ▇▇▇▇▇▇ of its non-acceptance of the draft Completion Accounts and the Statement within the 45 day 20 Business Day period referred to in clause 7.26.4, then the draft Completion Accounts and the Statement (incorporating any agreed adjustments) shall constitute the Completion Accounts and the Statement for the purposes of this Agreementagreement.
7.5 6.7 If the Seller ▇▇▇▇▇▇ and the Buyer RoweCom do not reach agreement within the 20 Business Day period referred Days of RoweCom's notice of non-acceptance pursuant to in clause 7.3(b) (or such other time as the parties may agree in writing) 6.5 then the matters in dispute and in respect of which reasonable details have been provided by the Seller to the Buyer at the time that it notified the Buyer that it does not accept the Completion Accounts and the Statement in accordance with clause 7.3(a) (and only those) shall be referred for determination by an expert to be agreed by the Seller and the Buyer, and failing such agreement by the Seller and the Buyer within 10 Business Days following the end of the 20 Business Day period referred to in clause 7.3(b) (or such other time as the Seller and the Buyer may agree in writing)referred, on the application of either the Buyer or the Seller party, for determination by an expert appointed independent firm of internationally recognised chartered accountants to be agreed upon by ▇▇▇▇▇▇ and RoweCom or, failing agreement, to be selected, on the application of either ▇▇▇▇▇▇ or RoweCom, by the President for the time being of the Institute of Chartered Accountants of in England and Wales from time to time (the “Firm”)or his duly appointed deputy. The following provisions shall apply to such determination:determination:-
(a) the Buyer RoweCom and/or the Buyer’s RoweCom's accountants and the Seller ▇▇▇▇▇▇ and/or the Seller’s ▇▇▇▇▇▇'▇ accountants shall each promptly (and in any event within such time frame as reasonably enables the Firm to make its decision in accordance with the time frame set down in clause 7.5(b)) prepare and deliver to the Firm a written statement on the matters in dispute which (together with the relevant documents)) shall be submitted to such independent firm for determination;
(b) the Firm shall be requested to give its decision within 20 Business Days (or such later date as the Buyer and the Seller and the Firm agree in writing) of the confirmation and acknowledgment by the Firm of its appointment hereunder;
(c) in giving such determination, the Firm firm shall state what adjustments (if any) are necessary to the draft Completion Accounts and the Statement in respect of the matters in dispute in order to comply with the requirements of this Agreement and shall give its reasons thereforagreement;
(dc) the Firm any such firm shall act as an expert (and not as an arbitrator) in making any such determination, and the Completion Accounts and Statement, as adjusted by the Firm shall be deemed to be finally determined and determination which shall be final and binding on the parties (in the absence of manifest error);; and
(ed) each party shall bear the costs and expenses of all counsel and other advisers, witnesses and employees retained by it and the costs and the expenses of the Firm independent firm of accountants shall be borne between the Seller ▇▇▇▇▇▇ and the Buyer RoweCom in such proportions as the Firm firm shall in its discretion determine or, in the absence of any such determination, equally between the Seller ▇▇▇▇▇▇ and the BuyerRoweCom.
7.6 6.8 When the Seller ▇▇▇▇▇▇ and the Buyer RoweCom reach (or pursuant to clause 7.4 6.6 are deemed to reach) agreement on the Completion Accounts and the Statement or when the Completion Accounts and the Statement are finally determined at any stage in accordance with the procedures set out in this clause 7 (including clause 7.5):6:-
(a) the Completion Accounts and the Statement as so agreed or determined shall be the Completion Accounts and the Statement for the purposes of this Agreement agreement and shall be final and binding on the parties; and
(b) the Working Capital Amount, the Debt and the Cash, in each case, Amounts shall be as set out in the Statement.
7.7 6.9 Subject to any rule of law or any regulatory body or any provision of any contract or arrangement entered into prior to the date of this Agreement agreement to the contrary, the Seller ▇▇▇▇▇▇ shall procure that each member of the Seller’s ▇▇▇▇▇▇ Group shall, and the Buyer RoweCom shall procure that each member of the Group shall, promptly provide each other, their respective advisers, the Firm, independent firm of chartered accountants appointed pursuant to this clause 6 to determine the Buyer’s Completion Accounts and the Statement and RoweCom's accountants and the Seller’s ▇▇▇▇▇▇'▇ accountants with all information (in their respective possession or control) relating to the operations of the Seller’s ▇▇▇▇▇▇ Group and/or the Group, as the case may be, including access at all reasonable times to all the Seller’s ▇▇▇▇▇▇ Group and Group employees, books, books and records, and other relevant information and all co-operation and assistance, as may in any such case be reasonably required to:to:-
(a) enable the production of the Completion Accounts and the Statement; and
(b) enable the Firm any independent firm of chartered accountants appointed pursuant to this clause 6 to determine the Completion Accounts any matters in dispute as referred to in clause 6.7. ▇▇▇▇▇▇ and the Statement. The Seller and the Buyer RoweCom hereby authorise each other, their respective advisers and the Firm independent firm of chartered accountants appointed pursuant to this clause 6 to take copies of all information which they have agreed to provide under this clause 7.76.9.
7.8 Subject 6.10 In relation to clause 7.5(eeach Working Capital Amount (in each case the payment being the "Final Working Capital Payment"), which is:-
(a) less than the Seller relative Estimated Working Capital Amount, the relevant Vendor shall pay and ▇▇▇▇▇▇ shall procure the payment by the relevant Vendor, failing which ▇▇▇▇▇▇ shall itself make a payment to the relevant Purchaser;
(b) more than the relative Estimated Working Capital Amount, the relevant Purchaser shall pay and RoweCom shall procure the payment by the relevant Purchaser, failing which RoweCom shall itself make a payment, to the relevant Vendor, of an amount equal to the difference between the relevant Working Capital Amount and the Buyer shall each bear their own costs and expenses arising out relevant Estimated Working Capital Amount, within seven Business Days of the preparation and review agreement or determination of the Completion Accounts (the "Final Working Capital Payment Date"), together with interest thereon at the Agreed Rate computed from the Completion Date to the date of actual payment thereof both dates exclusive on the basis of the actual number of days elapsed and Statementa 365 day year. Any payment shall be by means of telegraphic transfer of funds to the accounts of the relevant Vendors or Purchasers as notified to ▇▇▇▇▇▇ or RoweCom no later than five Business Days prior to Completion, as the case may require.
6.11 In the event that prior to the Final Working Capital Payment Date RoweCom shall have given notice to ▇▇▇▇▇▇ of a claim or claims under the Warranties and/or the Indemnities and/or the Tax Deed then the following provisions shall at the sole option of RoweCom apply to the extent that any such claim or claims shall have been settled (in accordance with clause 6.12) but shall not have been paid by or on behalf of ▇▇▇▇▇▇ prior to the Final Working Capital Payment Date, RoweCom shall be entitled to treat its obligations hereunder to satisfy the Final Working Capital Payment to ▇▇▇▇▇▇ and the Vendors as being reduced pro tanto by the amount, to the extent settled (as to liability and quantum), of such claim or claims.
6.12 A claim shall be regarded as settled for the purposes of clause 6.11 if either:-
(a) ▇▇▇▇▇▇ and RoweCom (or their respective solicitors) shall so agree in writing; or
(b) a court has awarded judgment against ▇▇▇▇▇▇ in respect of the claim and no right of appeal lies in respect of such judgment or the parties are debarred whether by the passage of time or otherwise from exercising any such right of appeal.
6.13 For the avoidance of doubt nothing contained in clause 6.11 shall prejudice the right of RoweCom or the Purchasers to recover against ▇▇▇▇▇▇ otherwise than pursuant to clause 6.10 or to make any claim against ▇▇▇▇▇▇ under the Warranties and/or the Indemnities and/or the Tax Deed whether before or after the Final Working Capital Payment Date whether in accordance with the procedure specified in clause 6.10 or otherwise provided that neither RoweCom nor the Purchasers can recover more than once in respect of the same claim.
6.14 RoweCom shall use all reasonable endeavours to procure that, promptly after the expiry of the First Quarter, First Quarter Accounts together with the statement of First Quarter Profit ▇▇▇▇▇▇ (▇▇▇ "▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇") are prepared on the basis of the accounting policies and procedures set out in schedule 17. The provisions of clauses 6.2 to 6.9 (inclusive) and clauses 6.11 to 6.13 (inclusive) shall apply to this clause 6.14 mutatis mutandis in respect of the First Quarter Accounts except that:-
Appears in 1 contract
Sources: Agreement for the Sale and Purchase of the Subscription Business (Rowecom Inc)
Completion Accounts. 7.1 5.1 The Buyer and the Seller shall use all reasonable endeavours to procure that the Group prepares drafts of the that, promptly after Completion, Completion Accounts and in relation to the Statement Target Group, together with a statement in the format set out in part 2 of schedule 6 5 (the “Statement”)) of the Working Capital Amount as at close of business on the Completion Date, are prepared in accordance with the provisions of this clause 5. The Completion Accounts shall be prepared on the basis of the accounting policies and procedures set out in Part 3 of schedule 7 5 of this agreement.
5.2 The Seller and delivers them the Buyer shall prepare the Completion Accounts and the Statement in conjunction with the Target Group with a view to such draft Completion Accounts and draft Statement being submitted to the Seller within 75 days 60 Business Days of Completion.
7.2 5.3 Subject to clause 5.7(e), the Seller and the Buyer shall each bear their own costs and expenses arising out of the preparation and review of the Completion Accounts and Statement.
5.4 The Seller shall notify the Buyer in writing within 45 days 30 Business Days of receipt of such draft Completion Accounts and the draft Statement whether or not it accepts the draft Completion Accounts and draft Statement for the purposes of this Agreementagreement.
7.3 5.5 If the Seller notifies the Buyer that it does not accept such draft Completion Accounts and draft Statement:
(a) it shall, at the same time as it notifies the Buyer that it does not accept such draft Completion Accounts and draft Statement, set out in such notice in writing its reasons in reasonable detail for such non-acceptance and specify the adjustments which, in its opinion, should be made to the draft Completion Accounts and the draft Statement in order to comply with the requirements of this Agreementagreement; and
(b) the parties shall use all reasonable endeavours to:
(i) meet and discuss the objections of the Seller; and
(ii) try to reach agreement upon the adjustments (if any) required to be made to the draft Completion Accounts and the draft Statement and will provide each other with such information and explanations and access to working papers as may be reasonably and properly required by the other for their purpose; in each case, within 20 Business Days of the Seller’s notice of non-acceptance pursuant to clause 7.2 5.4 (or such other time as the parties may agree in writing).
7.4 5.6 If the Seller is satisfied with the draft Completion Accounts and the draft Statement (either as originally submitted or after adjustments agreed between the Seller and the Buyer) or if the Seller fails to notify the Buyer of its non-acceptance of the draft Completion Accounts and the draft Statement within the 45 day 30 Business Day period referred to in clause 7.25.4, then the draft Completion Accounts and the draft Statement (incorporating any agreed adjustments) shall constitute the Completion Accounts and the Statement for the purposes of this Agreementagreement.
7.5 5.7 If the Seller and the Buyer do not reach agreement within the 20 Business Day period referred to in clause 7.3(b5.5(b) (or such other time as the parties may agree in writing) then the matters in dispute and in respect of which reasonable details have been provided by the Seller to the Buyer at the time that it notified the Buyer that it does not accept the Completion Accounts and the Statement in accordance with clause 7.3(a) (and only those) shall be referred for determination by an expert to be agreed by the Seller and the Buyer, and failing such agreement by the Seller and the Buyer within 10 Business Days following the end of the 20 Business Day period referred to in clause 7.3(b) (or such other time as the Seller and the Buyer may agree in writing)referred, on the application of either the Buyer Seller or the Seller Buyer, for determination by an expert appointed independent firm of internationally recognised chartered accountants to be agreed upon by the President Seller and the Buyer or, failing agreement, to be selected, on the application of either the Seller or the Buyer, by the Chairman for the time being of the Ulster Society of the Institute of Chartered Accountants of England and Wales from time to time in Ireland or his duly appointed deputy (the “Firmfirm”). The following provisions shall apply to such determination:
(a) the Buyer and/or the Buyer’s accountants Accountants and the Seller and/or the Seller’s accountants Accountants shall each promptly (and in any event within such time frame as reasonably enables the Firm firm to make its decision in accordance with the time frame set down in clause 7.5(b5.7(b)) prepare and deliver to the Firm firm a written statement on the matters in dispute (together with the relevant documents);
(b) the Firm firm shall be requested to give its decision within 20 as soon as is reasonably practicable after its appointment and in any event by not later than 30 Business Days (or such later date as the Buyer and the Seller and the Firm agree in writing) of the confirmation and acknowledgment by the Firm of after its appointment hereunder;
(c) in giving such determination, the Firm firm shall state what adjustments (if any) are necessary to the draft Completion Accounts and the draft Statement in respect of the matters in dispute in order to comply with the requirements of this Agreement agreement and shall give its reasons therefor;
(d) the Firm firm shall act as an expert (and not as an arbitratorarbitrator and the Arbitration (Northern Ireland) Order 1996 shall not apply) in making any such determination, and the Completion Accounts and Statement, as adjusted by the Firm shall be deemed to be finally determined and determination which shall be final and binding on the parties (in the absence of manifest error);
(e) each party shall bear the costs and expenses of all counsel and other advisers, witnesses and employees retained by it and the costs and the expenses of the Firm firm shall be borne between the Seller and the Buyer in such proportions as the Firm firm shall in its discretion determine or, in the absence of any such determination, equally between the Seller and the Buyer.
7.6 5.8 When the Seller and the Buyer reach (or pursuant to clause 7.4 5.6 are deemed to reach) agreement on the Completion Accounts and the Statement or when the Completion Accounts and the Statement are finally determined at any stage in accordance with the procedures set out in this clause 7 (including clause 7.5):5:
(a) the Completion Accounts and the Statement as so agreed or determined shall be the Completion Accounts and the Statement for the purposes of this Agreement agreement and shall be final and binding on the parties; and
(b) the Working Capital Amount, Amount as at close of business on the Debt and the Cash, in each caseCompletion Date, shall be as set out in the Statement.
7.7 5.9 Subject to any rule of law or any regulatory body or any provision of any contract or arrangement entered into prior to the date of this Agreement agreement to the contrary, the Seller shall procure that each member of the Seller’s Group shall, and the Buyer shall procure that the Target Group shall, promptly provide each other, their respective advisers, the Firmfirm, the Buyer’s accountants and the Seller’s accountants with all information (in their respective possession or control) relating to the operations of the Seller’s Group and/or the Target Group, as the case may be, including access at all reasonable times to all the Seller’s Group and Target Group employees, books, records, and other relevant information and all co-operation and assistance, as may in any such case be reasonably required to:
(a) enable the production of the Completion Accounts and the Statement; and
(b) enable the Firm firm to determine the Completion Accounts and the Statement. The Seller and the Buyer hereby authorise each other, their respective advisers and the Firm firm to take copies of all information which they have agreed to provide under this clause 7.75.9.
7.8 Subject to clause 7.5(e), the Seller and the Buyer shall each bear their own costs and expenses arising out of the preparation and review of the Completion Accounts and Statement.
Appears in 1 contract
Completion Accounts. 7.1 4.1 The Buyer and Seller shall jointly procure as soon as practicable and in any event within 60 calendar days of the Completion Date that the Group prepares drafts a draft of the Completion Accounts and the Statement in the format set out in schedule 6 (the “Statement”), are prepared on the basis of the accounting policies principles and procedures set out in schedule 7 practices consistently applied during the two previous accounting periods and delivers them submitted to the Seller within 75 days of Completion.
7.2 Seller’s Accountants for their consideration. The Seller shall notify the Buyer in writing within 45 days of receipt of such draft Completion Accounts shall be prepared by the Buyer’s Accountants in active consultation with ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ and the Statement whether or not it accepts the draft Completion Accounts ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ (who shall have adequate continued access to records and Statement for the purposes of this Agreement.
7.3 If the Seller notifies the Buyer that it does not accept such draft Completion Accounts and Statement:
(a) it shall, at the same time as it notifies the Buyer that it does not accept such draft Completion Accounts and Statement, set out in such notice in writing its reasons in reasonable detail personnel for such non-acceptance and specify purposes only), without cost to the adjustments which, in its opinion, should Seller. No change shall be made to the draft which would make the Completion Accounts inconsistent (as to principles and the Statement in order to comply practices) with the requirements of this Agreement; and
(b) Accounts, unless the parties shall use reasonable endeavours to:
(i) discuss the objections of the Seller; and
(ii) try to reach agreement upon the adjustments (if any) required to be made to the draft Completion Accounts Buyer and the Statement in each case, within 20 Business Days of the Seller’s notice of non-acceptance pursuant to clause 7.2 (or such other time as the parties may Seller agree in writing). No provision, reserve, or write-off or similar adjustment shall be made or included to the extent that it is necessitated by any act of the Buyer following Completion.
7.4 If 4.2 Notwithstanding the Seller is satisfied with the draft Completion Accounts and the Statement (either as originally submitted or after adjustments agreed between the Seller and the Buyer) or if the Seller fails to notify the Buyer terms of its non-acceptance of the draft Completion Accounts and the Statement within the 45 day period referred to in clause 7.2, then the draft Completion Accounts and the Statement (incorporating any agreed adjustments) shall constitute the Completion Accounts and the Statement for the purposes of this Agreement.
7.5 If the Seller and the Buyer do not reach agreement within the 20 Business Day period referred to in clause 7.3(b) (or such other time as the parties may agree in writing) then the matters in dispute and in respect of which reasonable details have been provided by the Seller to the Buyer at the time that it notified the Buyer that it does not accept the Completion Accounts and the Statement in accordance with clause 7.3(a) (and only those) shall be referred for determination by an expert to be agreed by the Seller and the Buyer, and failing such agreement by the Seller and the Buyer within 10 Business Days following the end of the 20 Business Day period referred to in clause 7.3(b) (or such other time as the Seller and the Buyer may agree in writing), on the application of either the Buyer or the Seller by an expert appointed by the President of the Institute of Chartered Accountants of England and Wales from time to time (the “Firm”). The following provisions shall apply to such determinationClause 4.1:
(a) the Buyer and/or Completion Accounts will show as forming part of the Buyer’s accountants “Creditors: amounts falling due within one year”, regardless of how that term would otherwise be construed, specific provisions for all Tax and sums relating to tax arising as a result of an Event, or the Seller and/or Profits earned, accrued or received, in the Seller’s accountants shall each promptly period between the Accounts Date and Completion, in the ordinary course of business of the Company as carried on at Completion. (and For the avoidance of doubt, it is agreed between the parties that for the purposes of Clause 4.2, the provisions for Tax in any event within such time frame as reasonably enables the Firm Accounts are considered to make its decision in accordance with the time frame set down in clause 7.5(b)) prepare and deliver to the Firm a written statement on the matters in dispute (together with the relevant documentsbe “specific”);
(b) the Firm shall be requested Completion Accounts will not contain any provision, reserve or allowance in respect of any Tax or sums relating to give its decision within 20 Business Days Tax for any Event or the Profits earned accrued or received:
(or such later date as i) in the Buyer period between the Accounts Date and Completion; or
(ii) at any time before Completion, (save to the Seller and extent specifically made in the Firm agree in writing) Accounts); outside the ordinary course of business of the confirmation and acknowledgment by Company as carried on in the Firm of its appointment hereundertwelve month period preceding Completion;
(c) the Completion Accounts will show specific provision, reserve or allowance for or in giving such determinationrespect of any Tax or sums relating to Tax equal in total to the provisions in the Accounts except to the extent that it is adjusted by taking into account in the period between the Accounts Date and Completion the payment of any Tax provided for in the Accounts and the Tax which has arisen in the ordinary course of business of the Company in that period;
(d) no provision for deferred tax will be made in the Completion Accounts, except to the Firm extent that it is otherwise dealt with in accordance with sub-clause 4.2 (a) and/or (c);
(e) any reference in this clause 4.2 to something inside or outside the ordinary course of business of the Company shall state what adjustments be construed in accordance with clause 1.2.13 of the Tax Deed;
(if anyf) are no sum received by Digital Vision (US) Limited on or before Completion in respect of the sale of any of its subsidiary companies will be included as part of the “Current Assets” in the Completion Accounts;
(g) the Completion Accounts shall be prepared on the basis that the sale of the US Subsidiaries had neither been contemplated nor completed before Completion.
4.3 The Seller and the Buyer shall respectively disclose all information necessary to prepare the draft Completion Accounts and the Statement Seller’s Accountants shall be given access to the Buyer’s Accountants’ working papers in respect relation to the Completion Accounts.
4.4 The Seller and the Buyer shall use their respective reasonable endeavours to agree the draft Completion Accounts as soon as reasonably practicable. Failing agreement within 30 calendar days of the matters receipt by the Seller’s Accountants of the draft Completion Accounts, any dispute or difference relating thereto shall be referred for final determination to an independent accountant nominated jointly by the Seller and the Buyer or, failing such nomination, at the request of either party, by the President for the time being of the Institute of Chartered Accountants in dispute in order England and Wales (the “Independent Accountant”). The Independent Accountant shall be instructed to comply with the requirements render his decision within 30 calendar days of this Agreement his nomination or appointment and shall give its reasons therefor;
(d) the Firm shall act as an expert (and not as an arbitratorarbitrator and (in the absence of manifest error) his decision (which shall be communicated in making any such determination, writing to the Seller and the Completion Accounts and Statement, as adjusted by the Firm shall be deemed to be finally determined and Buyer) shall be final and binding on the parties (in the absence of manifest error);
(e) each party shall bear the costs and expenses of all counsel and other advisers, witnesses and employees retained by it Seller and the Buyer. The fees and costs and the expenses of the Firm Independent Accountant shall be borne between and paid as to 50% by the Seller and as to 50% by the Buyer unless the Independent Accountant shall direct otherwise, in which case they shall be borne as he directs.
4.5 The Seller and the Buyer in such proportions as shall procure that the Firm shall in its discretion determine or, in the absence of any such determination, equally between the Seller and the Buyer.
7.6 When the Seller and the Buyer reach (or pursuant to clause 7.4 are deemed to reach) agreement on the draft Completion Accounts and the Statement or when the Completion Accounts and the Statement are finally determined at any stage in accordance with the procedures set out in this clause 7 (including clause 7.5):
(a) the Completion Accounts and the Statement as so agreed or determined shall be the Completion Accounts audited and the Statement for the purposes of this Agreement and shall be final and binding on the parties; and
(b) the Working Capital Amount, the Debt and the Cash, in each case, shall be as set out in the Statement.
7.7 Subject to any rule of law or any regulatory body or any provision of any contract entered into prior to the date of this Agreement to the contrary, the Seller shall procure that each member of the Seller’s Group shall, and the Buyer shall procure that the Group shall, promptly provide each other, their respective advisers, the Firm, certified by the Buyer’s accountants and Accountants.
4.6 If the Seller’s accountants with all information (Net Current Asset Value is less than the value of the net current assets as shown in their respective possession or control) relating the balance sheet forming part of the Accounts, the Consideration shall be reduced by the amount of the shortfall, which shall be paid by the Seller to the operations of Buyer in cash (by telegraphic transfer to the SellerBuyer’s Group and/or the Group, as the case may be, including access at all reasonable times to all the Seller’s Group and Group employees, books, records, and other relevant information and all co-operation and assistance, as may in any such case be reasonably required to:
(aSolicitors) enable the production within seven calendar days after delivery of the Completion Accounts and failing payment in full within seven days the Statement; and
(b) enable the Firm balance outstanding from time to determine time shall bear interest from the Completion Accounts and the Statement. The Seller and the Buyer hereby authorise each other, their respective advisers and the Firm to take copies of all information which they have agreed to provide under this clause 7.7Date until actual payment in accordance with Clause 15.10.
7.8 Subject to clause 7.5(e)4.7 For the avoidance of doubt, if the Seller and Net Current Asset Value is more than the Buyer shall each bear their own costs and expenses arising out value of the preparation and review net current assets as shown in the balance sheet forming part of the Completion Accounts and StatementAccounts, there shall be no adjustment to the Consideration.
Appears in 1 contract
Completion Accounts. 7.1 4.1 The Buyer shall procure that the Group prepares drafts of the Completion Accounts and the Statement in the format set out in schedule 6 (the “Statement”), on the basis of the accounting policies and procedures set out in schedule 7 therein and delivers deliver them to the Seller within 75 days 30 Business Days of Completion.
7.2 4.2 The Seller shall notify the Buyer in writing within 45 days 30 Business Days of receipt of such draft Completion Accounts and the Statement whether or not it accepts the draft Completion Accounts and Statement for the purposes of this Agreementagreement.
7.3 4.3 If the Seller notifies the Buyer that it does not accept such draft Completion Accounts and Statement:
(a) it shall, at the same time as it notifies the Buyer that it does not accept such draft Completion Accounts and Statement, set out in such notice in writing its reasons in reasonable detail for such non-acceptance and specify the adjustments which, in its opinion, should be made to the draft Completion Accounts and the Statement in order to comply with the requirements of this Agreementagreement; and
(b) the parties shall use all reasonable endeavours to:
(i) meet and discuss the objections of the Seller; and
(ii) try to reach agreement upon the adjustments (if any) required to be made to the draft Completion Accounts and the Statement in each case, within 20 Business Days of the Seller’s notice of non-acceptance pursuant to clause 7.2 4.2 (or such other time as the parties may agree in writing).
7.4 4.4 If the Seller is satisfied with the draft Completion Accounts and the Statement (either as originally submitted or after adjustments agreed between the Seller and the Buyer) or if the Seller fails to notify the Buyer of its non-acceptance of the draft Completion Accounts and the Statement within the 45 day 30 Business Day period referred to in clause 7.24.2, then the draft Completion Accounts and the Statement (incorporating any agreed adjustments) shall constitute the Completion Accounts and the Statement for the purposes of this Agreementagreement.
7.5 4.5 If the Seller and the Buyer do not reach agreement within the 20 Business Day period referred to in clause 7.3(b4.3(b) (or such other time as the parties may agree in writing) then the matters in dispute and in respect of which reasonable details have been provided by the Seller to the Buyer at the time that it notified the Buyer that it does not accept the Completion Accounts and the Statement in accordance with clause 7.3(a) (and 4.3(a)(and only those) shall be referred for determination by an expert to be agreed by the Seller and the Buyer, and failing such agreement by the Seller and the Buyer within 10 Business Days following the end of the 20 Business Day period referred to in clause 7.3(b) (or such other time as the Seller and the Buyer may agree in writing)referred, on the application of either the Buyer Seller or the Seller Buyer, for determination by an expert appointed independent firm of internationally recognised chartered accountants to be agreed upon by the Seller and the Buyer or, failing agreement, to be selected, on the application of either the Seller or the Buyer, by the President for the time being of the Institute of Chartered Accountants of in England and Wales from time to time or his duly appointed deputy (the “Firmfirm”). The following provisions shall apply to such determination:
(a) the Buyer and/or the Buyer’s accountants and the Seller and/or the Seller’s accountants shall each promptly (and in any event within such time frame as reasonably enables the Firm firm to make its decision in accordance with the time frame set down in clause 7.5(b4.5(b)) prepare and deliver to the Firm firm a written statement on the matters in dispute (together with the relevant documents);
(b) the Firm firm shall be requested to give its decision within 20 Business Days (or such later date as the Buyer and the Seller and the Firm agree in writing) of the confirmation and acknowledgment by the Firm firm of its appointment hereunder;
(c) in giving such determination, the Firm firm shall state what adjustments (if any) are necessary to the draft Completion Accounts and the Statement in respect of the matters in dispute in order to comply with the requirements of this Agreement agreement and shall give its reasons therefor;
(d) the Firm firm shall act as an expert (and not as an arbitrator) in making any such determination, and the Completion Accounts and Statement, as adjusted by the Firm shall be deemed to be finally determined and determination which shall be final and binding on the parties (in the absence of manifest error);
(e) each party shall bear the costs and expenses of all counsel and other advisers, witnesses and employees retained by it and the costs and the expenses of the Firm firm shall be borne between the Seller and the Buyer in such proportions as the Firm firm shall in its discretion determine or, in the absence of any such determination, equally between the Seller and the Buyer.
7.6 4.6 When the Seller and the Buyer reach (or pursuant to clause 7.4 4.4 are deemed to reach) agreement on the Completion Accounts and the Statement or when the Completion Accounts and the Statement are finally determined at any stage in accordance with the procedures set out in this clause 7 (including clause 7.5):4:
(a) the Completion Accounts and the Statement as so agreed or determined shall be the Completion Accounts and the Statement for the purposes of this Agreement agreement and shall be final and binding on the parties; and
(b) the Working Capital Amount, the Debt and Debt, the Cash, in each casethe Intra-Group Payables, the Intra-Group Receivables, the Liabilities and the Completion Tax Figure shall be as set out in the Statement.
7.7 4.7 Subject to any rule of law or any regulatory body or any provision of any contract or arrangement entered into prior to the date of this Agreement agreement to the contrary, the Seller shall procure that each member of the Seller’s Group shall, and the Buyer shall procure that the Group shall, promptly provide each other, their respective advisers, the Firmfirm, the Buyer’s accountants and the Seller’s accountants with all information (in their respective possession or control) relating to the operations of the Seller’s Group and/or the Group, as the case may be, including access at all reasonable times to all the Seller’s Group and Group employees, books, records, and other relevant information and all co-operation and assistance, as may in any such case be reasonably required to:
(a) enable the production of the Completion Accounts and the Statement; and
(b) enable the Firm firm to determine the Completion Accounts and the Statement. The Seller and the Buyer hereby authorise each other, their respective advisers and the Firm firm to take copies of all information which they have agreed to provide under this clause 7.74.7.
7.8 4.8 Subject to clause 7.5(e4.5(e), the Seller and the Buyer shall each bear their own costs and expenses arising out of the preparation and review of the Completion Accounts and Statement.
Appears in 1 contract
Sources: Share Purchase Agreement (TRM Corp)
Completion Accounts. 7.1 The Buyer 5.1 Immediately following Completion, the Purchaser shall procure that the Group prepares drafts Company carry out random stock checks on stock at Completion and a review of the Completion Accounts and the Statement despatch notes in the format set out in schedule 6 (the “Statement”), on the basis of the accounting policies and procedures set out in schedule 7 and delivers them period leading up to the Seller within 75 days of Completion.
7.2 5.2 If the Purchaser, acting in good faith, is dissatisfied with the results of any exercise carried out pursuant to Clause 5.1, the Purchaser may within 14 days of Completion (the "Election Date") elect to procure the preparation by the Company of a profit and loss account and a balance sheet (together with appropriate notes of the Group as at the close of business on the last Business Day prior to the Election Date (the "Draft Accounts"). The Seller Draft Accounts shall notify be delivered to the Buyer Vendor in accordance with clause 18 (Notices) as soon as reasonably practicable, and in any event, within 30 Business Days, following the Election Date, together with, if requested, all of the working papers used in the preparation of the Draft Accounts. The costs of preparing the Draft Accounts shall be borne by the Vendors and the Purchaser equally.
5.3 The Vendors may dispute the Draft Accounts by notice (in this clause, the "Notice") in writing to the Purchaser within 45 days 10 Business Days of receipt of such draft Completion Accounts and receiving the Statement whether or not it accepts the draft Completion Accounts and Statement for the purposes of this Agreement.
7.3 If the Seller notifies the Buyer that it does not accept such draft Completion Accounts and Statement:
Draft Accounts. The Notice shall specify (a) it shall, at the same time as it notifies the Buyer that it does not accept such draft Completion Accounts which items are disputed and Statement, set out in such notice in writing its reasons in reasonable detail for such non-acceptance and specify the adjustments which, in its opinion, should be made to the draft Completion Accounts and the Statement in order to comply with the requirements of this Agreement; and
(b) the parties reasons therefor.
5.4 If the Vendors do not serve the Notice, the Draft Accounts shall use reasonable endeavours to:constitute the Completion Accounts. If the Vendors do serve the Notice, then either:-
(i) discuss if the objections of Purchaser and the Seller; and
(ii) try to Vendors, negotiating in good faith, reach agreement upon on the adjustments (if any) required to be made to the draft Completion Accounts and the Statement items in each case, dispute within 20 10 Business Days of the Seller’s notice of non-acceptance pursuant to clause 7.2 Notice being served (or such other time longer period as the parties may agree in writing).
7.4 If the Seller is satisfied with the draft Completion Accounts Purchaser and the Statement (either as originally submitted or after adjustments agreed between the Seller and the Buyer) or if the Seller fails to notify the Buyer of its non-acceptance of the draft Completion Accounts and the Statement within the 45 day period referred to in clause 7.2, then the draft Completion Accounts and the Statement (incorporating any agreed adjustments) shall constitute the Completion Accounts and the Statement for the purposes of this Agreement.
7.5 If the Seller and the Buyer do not reach agreement within the 20 Business Day period referred to in clause 7.3(b) (or such other time as the parties may agree in writing) then the matters in dispute and in respect of which reasonable details have been provided by the Seller to the Buyer at the time that it notified the Buyer that it does not accept the Completion Accounts and the Statement in accordance with clause 7.3(a) (and only those) shall be referred for determination by an expert to be agreed by the Seller and the Buyer, and failing such agreement by the Seller and the Buyer within 10 Business Days following the end of the 20 Business Day period referred to in clause 7.3(b) (or such other time as the Seller and the Buyer Vendor may agree in writing), on the application of either Draft Accounts shall be amended to reflect such agreement and shall constitute the Buyer Completion Accounts; or
(ii) if the Purchaser and the Vendors negotiating in good faith, do not reach agreement in accordance with (i) above, the Purchaser or the Seller Vendors may refer the dispute to an independent chartered accountant (the "Expert") appointed by agreement between or in the absence of an expert appointed agreement by the President for the time being of the Institute of Chartered Accountants of in England and Wales from time Wales.
5.5 In any reference to time (the “Firm”). The following provisions shall apply to such determination:
(a) the Buyer and/or the Buyer’s accountants and the Seller and/or the Seller’s accountants shall each promptly (and in any event within such time frame as reasonably enables the Firm to make its decision Expert in accordance with sub-clause 5.4:-
5.5.1 the time frame set down in clause 7.5(b)) prepare and deliver to the Firm a written statement on the matters in dispute (together with the relevant documents);
(b) the Firm shall be requested to give its decision within 20 Business Days (or such later date as the Buyer and the Seller and the Firm agree in writing) of the confirmation and acknowledgment by the Firm of its appointment hereunder;
(c) in giving such determination, the Firm shall state what adjustments (if any) are necessary to the draft Completion Accounts and the Statement in respect of the matters in dispute in order to comply with the requirements of this Agreement and shall give its reasons therefor;
(d) the Firm Expert shall act as an expert (and not as an arbitrator) ;
5.5.2 the decision of the Expert shall, in making any such determinationthe absence of fraud or manifest error, and the Completion Accounts and Statement, as adjusted by the Firm shall be deemed to be finally determined and shall be final and binding on the parties (in the absence of manifest error);
(e) each party shall bear the costs and expenses of all counsel and other advisers, witnesses and employees retained by it Purchaser and the costs Vendors and the expenses of the Firm shall be borne between the Seller and the Buyer in such proportions as the Firm shall in its discretion determine or, in the absence of any such determination, equally between the Seller and the Buyer.
7.6 When the Seller and the Buyer reach (or pursuant to clause 7.4 are deemed to reach) agreement on the Completion Accounts and the Statement or when the Completion Accounts and the Statement are finally determined at any stage in accordance with the procedures set out in this clause 7 (including clause 7.5):
(a) the Completion Accounts and the Statement as so agreed or determined shall be the Completion Draft Accounts and amended to reflect the Statement for decision of the purposes Expert;
5.5.3 the costs of this Agreement and the Expert shall be final and binding on paid by the partiesparty against whom the dispute is determined; and
(b) 5.5.4 each of the Working Capital Amount, the Debt Vendors and the Cash, in each case, Purchaser shall be respectively provide or procure the provision to the Expert of all such information as set out in the StatementExpert shall reasonably require.
7.7 Subject to any rule of law or any regulatory body or any provision of any contract entered into prior to the date of this Agreement to the contrary, the Seller shall procure that each member of the Seller’s Group shall, and the Buyer shall procure that the Group shall, promptly provide each other, their respective advisers, the Firm, the Buyer’s accountants and the Seller’s accountants with all information (in their respective possession or control) relating to the operations of the Seller’s Group and/or the Group, as the case may be, including access at all reasonable times to all the Seller’s Group and Group employees, books, records, and other relevant information and all co-operation and assistance, as may in any such case be reasonably required to:
(a) enable the production 5.6 Following determination of the Completion Accounts pursuant to sub- clause 5.5, the amount of the Stock and the Statement; and
(b) enable the Firm Net Asset Value shall be determined by reference to determine the Completion Accounts and the Statement. The Seller and the Buyer hereby authorise each other, their respective advisers and the Firm to take copies of all information which they have agreed to provide under this clause 7.7Accounts.
7.8 Subject to clause 7.5(e), the Seller and the Buyer shall each bear their own costs and expenses arising out of the preparation and review of the Completion Accounts and Statement.
Appears in 1 contract
Sources: Share Purchase Agreement (Advanced Marketing Services Inc)
Completion Accounts. 7.1 The Buyer (a) As promptly as practicable, but in any event within sixty (60) calendar days after the Closing Date, Purchaser shall procure that the Group prepares drafts prepare and deliver to Seller a balance sheet of the Company as of 12:01 a.m. Beijing time on the Closing Date, together with Purchaser’s calculations of the Actual Net Debt Amount, the Actual Working Capital Amount and the Actual Working Capital Adjustment Amount, in each case, which shall be prepared and calculated in accordance with the Accounting Principles (such deliverable, the “Completion Accounts”).
(b) Upon delivery of the Completion Accounts, Purchaser shall ensure that all information and assistance reasonably requested by Seller is given to Seller to review Purchaser’s draft Completion Accounts and shall permit Representatives of Seller to have reasonable access to the books, records and other materials of the Company and the facilities and personnel of the Company, and working papers prepared by or for Purchaser and the Company, and take extracts from, or make copies of, the records, for the sole purposes of reviewing Purchaser’s draft Completion Accounts. If Purchaser breaches its obligations under this Section 2.5(b), the dispute period set forth in Section 2.5(c) shall automatically be extended until such breach is cured by the breaching Party.
(c) If Seller does not dispute the draft Completion Accounts within twenty (20) Business Days after the date on which Seller receives Purchaser’s draft Completion Accounts pursuant to Section 2.5(a) (the “Final Objection Date”), Purchaser’s draft Completion Accounts will be deemed to be the final Completion Accounts and the Statement in Actual Net Debt Amount, the format set out in schedule 6 (the “Statement”), on the basis of the accounting policies and procedures set out in schedule 7 and delivers them to the Seller within 75 days of Completion.
7.2 The Seller shall notify the Buyer in writing within 45 days of receipt of such draft Completion Accounts Actual Working Capital Amount and the Statement whether or not it accepts the draft Completion Accounts and Statement for the purposes of this Agreement.
7.3 If the Seller notifies the Buyer that it does not accept such draft Completion Accounts and Statement:
(a) it shall, at the same time as it notifies the Buyer that it does not accept such draft Completion Accounts and Statement, Actual Working Capital Adjustment Amount set out in such notice in writing its reasons in reasonable detail for such non-acceptance and specify the adjustments which, in its opinion, should be made to the draft Completion Accounts and the Statement in order to comply with the requirements of this Agreement; and
(b) the parties shall use reasonable endeavours to:
(i) discuss the objections of the Seller; and
(ii) try to reach agreement upon the adjustments (if any) required to be made to the draft Completion Accounts and the Statement in each case, within 20 Business Days of the Seller’s notice of non-acceptance pursuant to clause 7.2 (or such other time as the parties may agree in writing).
7.4 If the Seller is satisfied with the draft Completion Accounts and the Statement (either as originally submitted or after adjustments agreed between the Seller and the Buyer) or if the Seller fails to notify the Buyer of its non-acceptance of the draft Completion Accounts and the Statement within the 45 day period referred to in clause 7.2, then the draft Completion Accounts and the Statement (incorporating any agreed adjustments) shall constitute the Completion Accounts and the Statement for the purposes of this Agreement.
7.5 If the Seller and the Buyer do not reach agreement within the 20 Business Day period referred to in clause 7.3(b) (or such other time as the parties may agree in writing) then the matters in dispute and in respect of which reasonable details have been provided by the Seller to the Buyer at the time that it notified the Buyer that it does not accept the Completion Accounts and the Statement in accordance with clause 7.3(a) (and only those) shall be referred for determination by an expert to be agreed by the Seller and the Buyer, and failing such agreement by the Seller and the Buyer within 10 Business Days following the end of the 20 Business Day period referred to in clause 7.3(b) (or such other time as the Seller and the Buyer may agree in writing), on the application of either the Buyer or the Seller by an expert appointed by the President of the Institute of Chartered Accountants of England and Wales from time to time (the “Firm”). The following provisions shall apply to such determination:
(a) the Buyer and/or the Buyer’s accountants and the Seller and/or the Seller’s accountants shall each promptly (and in any event within such time frame as reasonably enables the Firm to make its decision in accordance with the time frame set down in clause 7.5(b)) prepare and deliver to the Firm a written statement on the matters in dispute (together with the relevant documents);
(b) the Firm shall be requested to give its decision within 20 Business Days (or such later date as the Buyer and the Seller and the Firm agree in writing) of the confirmation and acknowledgment by the Firm of its appointment hereunder;
(c) in giving such determination, the Firm shall state what adjustments (if any) are necessary to the draft Completion Accounts and the Statement in respect of the matters in dispute in order to comply with the requirements of this Agreement and shall give its reasons therefor;
(d) the Firm shall act as an expert (and not as an arbitrator) in making any such determination, and the Completion Accounts and Statement, as adjusted by the Firm shall be deemed to be finally determined and shall forth therein will be final and binding on the parties Parties.
(d) If Seller provides Purchaser with written notice of dispute with respect to any aspect of Purchaser’s draft Completion Accounts prior to the Final Objection Date (a “Dispute Notice”), setting forth in reasonable detail each item so disputed (all such items, the “Disputed Matters”), then such Disputed Matters will be resolved in accordance with Section 2.6. Any item or matter that is not a Disputed Matter shall become final and binding, unless the resolution of any item or matter objected to in the absence of manifest error);
(e) each party shall bear Dispute Notice affects any such aspect, or presupposes the costs and expenses of all counsel and other advisers, witnesses and employees retained by it and the costs and the expenses of the Firm shall be borne between the Seller and the Buyer in such proportions as the Firm shall in its discretion determine or, in the absence inaccuracy of any such determination, equally between the Seller and the Buyer.
7.6 When the Seller and the Buyer reach (or pursuant to clause 7.4 are deemed to reach) agreement on the Completion Accounts and the Statement or when the Completion Accounts and the Statement are finally determined at any stage in accordance with the procedures set out in this clause 7 (including clause 7.5):
(a) the Completion Accounts and the Statement as so agreed or determined shall be the Completion Accounts and the Statement for the purposes of this Agreement and shall be final and binding on the parties; and
(b) the Working Capital Amount, the Debt and the Cashaspect, in each casewhich case such aspect shall, shall be as set out notwithstanding the failure to specifically dispute such aspect in the StatementDispute Notice, be considered disputed in the Dispute Notice.
7.7 Subject to any rule of law or any regulatory body or any provision of any contract entered into prior to the date of this Agreement to the contrary, the Seller shall procure that each member of the Seller’s Group shall, and the Buyer shall procure that the Group shall, promptly provide each other, their respective advisers, the Firm, the Buyer’s accountants and the Seller’s accountants with all information (in their respective possession or control) relating to the operations of the Seller’s Group and/or the Group, as the case may be, including access at all reasonable times to all the Seller’s Group and Group employees, books, records, and other relevant information and all co-operation and assistance, as may in any such case be reasonably required to:
(a) enable the production of the Completion Accounts and the Statement; and
(b) enable the Firm to determine the Completion Accounts and the Statement. The Seller and the Buyer hereby authorise each other, their respective advisers and the Firm to take copies of all information which they have agreed to provide under this clause 7.7.
7.8 Subject to clause 7.5(e), the Seller and the Buyer shall each bear their own costs and expenses arising out of the preparation and review of the Completion Accounts and Statement.
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Completion Accounts. 7.1 The 13.1 Following Completion the Buyer shall procure that deliver to the Group prepares drafts of Warrantors a draft Completion Balance Sheet, not later than 90 Business Days following Completion.
13.2 The Completion Balance Sheet shall be prepared in accordance with the Completion Accounts specific accounting policies and the Statement in the format principles set out in schedule 6 (the “Statement”), on the basis of the accounting policies and procedures set out in schedule 7 and delivers them to the Seller within 75 days of CompletionSchedule 6.
7.2 The Seller shall notify 13.3 In order to enable the Buyer in writing within 45 days of receipt of such draft Completion Accounts and the Statement whether or not it accepts to prepare the draft Completion Accounts and Statement for Balance Sheet and, as far as possible, to eliminate any potential areas of disagreement between the purposes of this Agreementparties, the Warrantors shall provide such reasonable assistance as the Buyer may reasonably require in that connection.
7.3 If the Seller notifies 13.4 Subject to timely compliance by the Buyer that it does with its obligations pursuant to clause 13.1 if the Warrantors do not accept such draft Completion Accounts and Statement:
(a) it shall, at the same time as it notifies the Buyer that it does not accept such draft Completion Accounts and Statement, set out in such notice in writing its reasons in reasonable detail for such non-acceptance and specify the adjustments which, in its opinion, should be made to the draft Completion Accounts and the Statement in order to comply with the requirements of this Agreement; and
(b) the parties shall use reasonable endeavours to:
(i) discuss the objections of the Seller; and
(ii) try to reach agreement upon the adjustments (if any) required to be made to the draft Completion Accounts and the Statement in each case, within 20 Business Days of presentation to them of the Seller’s draft Completion Balance Sheet give notice of non-acceptance pursuant to clause 7.2 (or such other time as the parties may agree in writing).
7.4 If the Seller is satisfied Buyer that they disagree with the draft Completion Accounts Balance Sheet or any item thereof (which notice shall state the amounts and reasons for the Statement disagreement in reasonable detail) (either as originally submitted or after adjustments agreed between the Seller and the Buyer) or if the Seller fails to notify the Buyer of its non-acceptance of "Warrantors’ Disagreement Notice"), the draft Completion Accounts and the Statement within the 45 day period referred Balance Sheet shall thereupon be deemed to in clause 7.2, then the draft Completion Accounts and the Statement (incorporating any agreed adjustments) shall constitute the Completion Accounts and the Statement for the purposes of this Agreement.
7.5 If the Seller and the Buyer do not reach agreement within the 20 Business Day period referred to in clause 7.3(b) (or such other time as the parties may agree in writing) then the matters in dispute and in respect of Balance Sheet, which reasonable details have been provided by the Seller to the Buyer at the time that it notified the Buyer that it does not accept the Completion Accounts and the Statement in accordance with clause 7.3(a) (and only those) shall be referred for determination by an expert to be agreed by the Seller and the Buyer, and failing such agreement by the Seller and the Buyer within 10 Business Days following the end of the 20 Business Day period referred to in clause 7.3(b) (or such other time as the Seller and the Buyer may agree in writing), on the application of either the Buyer or the Seller by an expert appointed by the President of the Institute of Chartered Accountants of England and Wales from time to time (the “Firm”). The following provisions shall apply to such determination:
(a) the Buyer and/or the Buyer’s accountants and the Seller and/or the Seller’s accountants shall each promptly (and in any event within such time frame as reasonably enables the Firm to make its decision in accordance with the time frame set down in clause 7.5(b)) prepare and deliver to the Firm a written statement on the matters in dispute (together with the relevant documents);
(b) the Firm shall be requested to give its decision within 20 Business Days (or such later date as the Buyer and the Seller and the Firm agree in writing) of the confirmation and acknowledgment by the Firm of its appointment hereunder;
(c) in giving such determination, the Firm shall state what adjustments (if any) are necessary to the draft Completion Accounts and the Statement in respect of the matters in dispute in order to comply with the requirements of this Agreement and shall give its reasons therefor;
(d) the Firm shall act as an expert (and not as an arbitrator) in making any such determination, and the Completion Accounts and Statement, as adjusted by the Firm shall be deemed to be finally determined and shall be final and binding on the parties (in the absence of manifest error);
(e) each party shall bear the costs and expenses of all counsel and other advisers, witnesses and employees retained by it and the costs and the expenses of the Firm shall be borne between the Seller and the Buyer in such proportions as the Firm shall in its discretion determine or, in the absence of any such determination, equally between the Seller and the Buyer.
7.6 When the Seller and the Buyer reach (or pursuant to clause 7.4 are deemed to reach) agreement on the Completion Accounts and the Statement or when the Completion Accounts and the Statement are finally determined at any stage in accordance with the procedures set out in this clause 7 (including clause 7.5):
(a) the Completion Accounts and the Statement as so agreed or determined shall be the Completion Accounts and the Statement for the purposes of this Agreement and shall be final and binding on the parties; and.
(b) 13.5 If the Working Capital AmountWarrantors serve a Warrantors’ Disagreement Notice within the requisite timescale, the Debt Buyer and the CashWarrantors shall attempt in good faith to reach agreement in respect thereof, in each case, shall be as set out in the Statement.
7.7 Subject and if they are unable to any rule do so within 10 Business Days of law or any regulatory body or any provision of any contract entered into prior to the date of this Agreement receipt by the Buyer of the Warrantors’ Disagreement Notice, either party may by notice (an "Appointment Notice") to the contraryother require that the Completion Balance Sheet be referred to an independent chartered accountant (the "Independent Accountant") to resolve the outstanding matters in dispute ("Outstanding Matters in Dispute") in accordance with Clause 13.6 below.
13.6 Matters in dispute in relation to the Completion Balance Sheet shall be referred at the request of either the Warrantors or the Buyer for decision to the Independent Accountant to be appointed by agreement between the Warrantors and the Buyer or, in default of agreement within 10 Business Days of a request by either the Warrantors or the Buyer to the other for the appointment of a particular accountant, by the then President of the Institute of Chartered Accountants in England and Wales (the "ICAEW President") on the application of either the Warrantors or the Buyer.
13.7 The Independent Accountant shall be instructed to determine the Outstanding Matters in Dispute and the Independent Accountant shall decide the procedure to be followed in the determination subject to the following provisions which shall apply to the Independent Accountant 's role in any event:
13.7.1 the Outstanding Matters in Dispute shall be notified to the Independent Accountant in writing by the Warrantors and/or the Buyer within 10 Business Days of the Independent Accountant 's appointment;
13.7.2 the terms of reference of the Independent Accountant shall be to determine the Outstanding Matters in Dispute, including the finalisation of the form and content of the Completion Balance Sheet in accordance with the provisions of this agreement within 30 Business Days of receipt of the Warrantors’ and the Buyer's Submissions in Reply (referred to below), or as soon as practicable thereafter;
13.7.3 the Buyer (and/or the Buyer's accountant on the Buyer's behalf) and the Warrantors (and/or the Warrantors accountant on the Warrantors behalf) shall each promptly prepare a written statement setting out their respective positions on the Outstanding Matters in Dispute ("Opening Submissions") and shall, within 30 Business Days of the appointment of the Independent Accountant, submit to him and one another copies of their respective Opening Submissions;
13.7.4 within 30 Business Days following the completion of clause 13.7.3 above, the Seller shall procure that each member of the Seller’s Group shall, Warrantors and the Buyer shall procure that each be entitled to comment in writing upon the Group shall, promptly provide each other, their respective advisers, Opening Submissions and documentation submitted by the Firm, other party ("Submissions in Reply"). Copies of such Submissions in Reply should be addressed and delivered to the Buyer’s accountants Independent Accountant and the Seller’s accountants with all information Warrantors or the Buyer (in their respective possession or control) relating to the operations of the Seller’s Group and/or the Group, as the case may be, including access at all reasonable times to all );
13.7.5 the Seller’s Group and Group employees, books, records, and other relevant information and all co-operation and assistance, as may in any such case be reasonably required to:
(a) enable the production determination of the Independent Accountant pursuant to this clause shall be made in writing and such determination together with the final Completion Accounts Balance Sheet shall be delivered by the Independent Accountant to the Warrantors and the Statement; andBuyer;
(b) enable 13.7.6 the Firm to determine Independent Accountant shall act as an expert and not as an arbitrator and his determination of any matter falling within his jurisdiction shall be final and binding on the Completion Accounts and the Statement. The Seller Warrantors and the Buyer hereby authorise each other(in the absence of fraud or manifest error). In particular, their respective advisers without limitation, his determination shall be deemed to be incorporated into the Completion Balance Sheet, which shall then be final and binding on the parties;
13.7.7 the expenses of the Independent Accountant shall be borne as he shall direct at the time he makes any determination or, failing such direction, equally between the Warrantors, on the one hand, and the Firm to take copies Buyer, on the other;
13.7.8 the parties shall co-operate with the Independent Accountant and comply with his reasonable requests made in connection with the carrying out of all information which they have agreed to provide his duties under this clause 7.7.
7.8 Subject agreement with respect to clause 7.5(e), the Seller and the Buyer shall each bear their own costs and expenses arising out of the preparation and review of the Completion Accounts and StatementBalance Sheet.
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Sources: Share Sale and Purchase Agreement (Matthews International Corp)