Final Closing Date Working Capital Statement. (a) Not later than seventy-five (75) calendar days after the Closing Date, the Purchaser shall, acting in good faith and using all commercially reasonable efforts, cause (i) an unaudited consolidated balance sheet of Alumicor, as at the end of the day on the day prior to the Closing Date, which balance sheet shall be prepared in accordance with generally accepted accounting principles and on a basis consistent with the preparation of the Financial Statements and the past practices of Alumicor (and where generally accepted accounting principles provide for a range of alternatives, such past practices shall govern) (the “Draft Closing Date Balance Sheet” and, as finally determined pursuant to the provisions of this Section 2.6, the “Closing Date Balance Sheet”); and (ii) a statement of Working Capital as at the end of the day on the day prior to the Closing Date (the “Draft Closing Date Working Capital Statement” and, as finally determined pursuant to the provisions of this Section 2.6, the “Closing Date Working Capital Statement”) based on the Draft Closing Date Balance Sheet, which such Draft Closing Date Working Capital Statement shall set out draft Working Capital as at the end of the day on the day prior to the Closing Date (such draft Working Capital as of the Closing Date, as finally determined pursuant to the provisions of this Section 2.6, referred to as the “Closing Date Working Capital”) to be calculated on a basis consistent with the calculation of Estimated Closing Date Working Capital in Section 2.2(b) (and, for greater certainty, none of the Credit Facility Debt Amount, the Total Seller Note Amount nor the Transaction Expenses shall be a liability for this purpose), in each case, to be prepared and delivered to the Sellers’ Agent. The Sellers’ Agent shall reasonably cooperate with the Purchaser and its accountants to the extent required to prepare the Draft Closing Date Balance Sheet and the Draft Closing Date Working Capital Statement (collectively, the “Draft Closing Statements”). (b) During the period from the date the Draft Closing Statements are delivered by the Purchaser to the Sellers’ Agent through the date such statements are finally determined in accordance with the terms of this Section 2.6, the Purchaser shall and shall cause each of the Purchaser’s and Alumicor’s Representatives to cooperate with the Sellers’ Agent and the Sellers’ Agent’s Representatives and to provide the Sellers’ Agent and the Sellers’ Agent’s Representatives full access to the work papers of the Purchaser, Alumicor and their respective Representatives in connection with the review of the Draft Closing Statements, and the Purchaser shall make reasonably available to the Sellers’ Agent and the Sellers’ Agent’s Representatives individuals responsible for the preparation of the Draft Closings Statements in order to respond to inquiries of the Sellers’ Agent related thereto. (c) If the Sellers’ Agent notifies the Purchaser that the Sellers agree with any of the Draft Closing Statements within thirty (30) days after receipt thereof or fails to deliver notice to the Purchaser of its disagreement therewith within such thirty (30) day period, any such Draft Closing Statements shall be conclusive and binding on the Sellers and the Purchaser and the parties shall be deemed to have agreed thereto, in the first case, on the date the Purchaser receives the notice and, in the second case, on such thirtieth (30th) day. If the Sellers’ Agent disagrees with any of the Draft Closing Statements or the calculation of Closing Date Working Capital as set forth therein, then the Sellers’ Agent shall notify the Purchaser of its disagreement (the “Dispute Notice”) within such thirty (30) day period together with reasonable particulars of the basis of such dispute, including the Sellers’ Agent’s position on the amounts in dispute (and the resulting Sellers’ Agent position on the amount of the Closing Date Working Capital). In such event, the Sellers’ Agent and the Purchaser shall attempt, in good faith, to resolve their differences with respect thereto within thirty (30) days after the receipt by the Purchaser of the Dispute Notice and make any amendments to the Draft Closing Statements as mutually agreed to by the parties. (d) Any dispute over any of the Draft Closing Statements or the calculation of Closing Date Working Capital as set forth in the Dispute Notice not resolved by the Purchaser and the Sellers’ Agent within such thirty (30) day period after receipt of the Dispute Notice (or such other period as the parties may agree) shall be submitted to the Independent Auditor to determine such dispute, and such determination shall be final and binding on the parties. The Independent Auditor shall allow the Purchaser and the Sellers’ Agent to present their respective positions regarding the dispute (provided that, for greater certainty, such presentations are limited to matters described in the Dispute Notice) and each of the Purchaser and the Sellers’ Agent shall have the right to present additional documents, materials and other information, and make an oral presentation to the Independent Auditor, regarding such dispute and the Independent Auditor shall consider such additional documents, materials and other information and such oral presentation. Any such other documents, materials or other information shall be copied to each of the Purchaser and the Sellers and each of the Sellers and the Purchaser shall be entitled to attend any such oral presentation. The Independent Auditor shall determine, based solely on such presentations from the Sellers’ Agent and the Purchaser and not by independent review, only those issues in dispute specifically set forth in the Dispute Notice and shall render a written report (the “Adjustment Report”) to the Sellers, the Sellers’ Agent and the Purchaser in which the Independent Auditor shall, after considering all matters set forth in the Dispute Notice, determine what adjustments, if any, should be made to the Draft Closing Date Balance Sheet, the Draft Closing Date Working Capital Statement and the Closing Date Working Capital. The Adjustment Report shall set forth, in reasonable detail, the Independent Auditor’s determination with respect to each of the disputed items or amounts specified in the Dispute Notice, and the revisions, if any, to be made to any of the Draft Closing Statements and/or the Closing Date Working Capital, together with supporting calculations, and the parties shall make such revisions to the Draft Closing Statements, as applicable. In resolving any disputed item, the Independent Auditor: (i) shall be bound to the principles of this Section 2.6 (including Schedule 2.6(a)), (ii) shall limit its review to matters specifically set forth in the Dispute Notice, and (iii) shall not assign a value to any item higher than the highest value for such item claimed by either party or lower than the lowest value for such item claimed by either party. The parties shall use commercially reasonable efforts to cause the Independent Auditor to complete its work and render its determination within thirty (30) calendar days of its engagement. The costs, fees and expenses of the Independent Auditor shall be allocated to and borne by the Purchaser, on the one hand, and the Sellers as a group, on the other hand, (with each Seller responsible only for its Pro Rata Share of the Sellers’ portion) based on the inverse of the percentage that the Independent Auditor’s determination (before such allocation) bears to the total amount of the total items in dispute as originally submitted to the Independent Auditor. For example, should the items in dispute total in amount to $1,000 and the Independent Auditor awards $600 in favor of the Purchaser’s position, 60% of the costs of the Independent Auditor’s review would be borne by Sellers as a group (with each Seller responsible only for its Pro Rata Share of such costs), and 40% of the costs would be borne by the Purchaser. (e) For greater certainty, each of the Closing Date Working Capital, Closing Date Working Capital Statement, Draft Closing Date Working Capital Statement, Estimated Closing Date Working Capital and Target Working Capital are to be calculated and prepared in a manner consistent, and in accordance with, the indicative Working Capital calculation set forth in Schedule 2.6(a).
Appears in 1 contract
Sources: Share Purchase Agreement (Apogee Enterprises, Inc.)
Final Closing Date Working Capital Statement. (a) Not later than seventy-five sixty (7560) calendar days after the Closing Date, the Purchaser shall, acting in good faith and using all commercially reasonable efforts, cause (i) an unaudited consolidated balance sheet of Alumicorthe Partnership, as at the end of the day on the day prior to the Closing Date, which balance sheet shall be prepared in accordance with generally accepted accounting principles and on a basis consistent with the preparation of the Financial Statements and the past practices of Alumicor (and where generally accepted accounting principles provide for a range of alternatives, such past practices shall govern) (the “Draft Closing Date Balance Sheet” and, as finally determined pursuant to the provisions of this Section 2.6, the “Closing Date Balance Sheet”); and (ii) a statement of Working Capital as at the end of the day on the day prior to the Closing Date (the “Draft Closing Date Working Capital Statement” and, as finally determined pursuant to the provisions of this Section 2.6, the “Closing Date Working Capital Statement”) based on the Draft Closing Date Balance Sheet, which such Draft Closing Date Working Capital Statement shall set out draft Working Capital as at the end of the day on the day prior to the Closing Date (such draft Working Capital as of the Closing Date, as finally determined pursuant to the provisions of this Section 2.6, referred to as the “Closing Date Working Capital”) to be calculated on a basis consistent with the calculation of Estimated Closing Date Working Capital in Section 2.2(b) (including Schedule 2.6(a) (and, for greater certainty, none of the Credit Facility Debt Amount, the Total Seller Note Amount nor or any other component of Closing Indebtedness, the Transaction Expenses or the Transaction Employment Taxes shall be a liability for this purpose), in each case, to be prepared and delivered to the Sellers’ Agent. The Sellers’ Agent shall reasonably cooperate with the Purchaser and its accountants to the extent required to prepare the Draft Closing Date Balance Sheet and the Draft Closing Date Working Capital Statement (collectively, the “Draft Closing Statements”).
(b) During the period from the date the Draft Closing Statements are delivered by the Purchaser to the Sellers’ Agent through the date such statements are finally determined in accordance with the terms of this Section 2.6, the Purchaser shall and shall cause each of the Purchaser’s ’s, the Acquired Companies’ and Alumicor’s the Subsidiaries’ respective Representatives to reasonably cooperate with the Sellers’ Agent and the Sellers’ Agent’s Representatives and to provide the Sellers’ Agent and the Sellers’ Agent’s Representatives full access to the work papers of the PurchaserPurchaser relating to the Acquired Companies and the Subsidiaries, Alumicor the Acquired Companies and the Subsidiaries and their respective Representatives in connection with the review of the Draft Closing Statements, and the Purchaser shall make reasonably available to the Sellers’ Agent and the Sellers’ Agent’s Representatives individuals responsible for the preparation of the Draft Closings Statements in order to respond to inquiries of the Sellers’ Agent related thereto.
(c) If the Sellers’ Agent notifies the Purchaser that the Sellers agree with any of the Draft Closing Statements within thirty forty-five (3045) days after receipt thereof or fails to deliver notice to the Purchaser of its disagreement therewith within such thirty forty-five (3045) day period, any such Draft Closing Statements shall be conclusive and binding on the Sellers and the Purchaser and the parties shall be deemed to have agreed thereto, in the first case, on the date the Purchaser receives the notice and, in the second case, on such thirtieth forty-fifth (30th45th) day. If the Sellers’ Agent disagrees with any of the Draft Closing Statements or the calculation of Closing Date Working Capital as set forth therein, then the Sellers’ Agent shall notify the Purchaser of its disagreement (the “Dispute Notice”) within such thirty forty-five (3045) day period together with reasonable particulars of the basis of such dispute, including the Sellers’ Agent’s position on the amounts in dispute (and the resulting Sellers’ Agent position on the amount of the Closing Date Working Capital). In such event, the Sellers’ Agent and the Purchaser shall work expeditiously and attempt, in good faith, to resolve their differences with respect thereto within thirty fifteen (3015) days after the receipt by the Purchaser of the Dispute Notice and make any amendments to the Draft Closing Statements as mutually agreed to by the parties.
(d) Any dispute over any of the Draft Closing Statements or the calculation of Closing Date Working Capital as set forth in the Dispute Notice not resolved by the Purchaser and the Sellers’ Agent within such thirty fifteen (3015) day period after receipt of the Dispute Notice (or such other period as the parties may agree) shall be submitted to the Independent Auditor to determine such dispute, and such determination shall be final and binding on the parties. The Independent Auditor shall allow the Purchaser and the Sellers’ Agent to present their respective positions regarding the dispute (provided that, for greater certainty, such presentations are limited to matters described in the Dispute Notice) and each of the Purchaser and the Sellers’ Agent shall have the right to present additional documents, materials and other information, and make an oral presentation to the Independent Auditor, regarding such dispute and the Independent Auditor shall consider such additional documents, materials and other information and such oral presentation. Any such other documents, materials or other information shall be copied to each of the Purchaser and the Sellers and each of the Sellers and the Purchaser shall be entitled to attend any such oral presentation. The Independent Auditor shall determine, based solely on such presentations from the Sellers’ Agent and the Purchaser and not by independent review, only those issues in dispute specifically set forth in the Dispute Notice and shall render a written report (the “Adjustment Report”) to the Sellers, the Sellers’ Seller’s Agent and the Purchaser in which the Independent Auditor shall, after considering all matters set forth in the Dispute Notice, determine what adjustments, if any, should be made to the Draft Closing Date Balance Sheet, the Draft Closing Date Working Capital Statement and the Closing Date Working Capital. The Adjustment Report shall set forth, in reasonable detail, the Independent Auditor’s determination with respect to each of the disputed items or amounts specified in the Dispute Notice, and the revisions, if any, to be made to any of the Draft Closing Statements and/or the Closing Date Working Capital, together with supporting calculations, and the parties shall make such revisions to the Draft Closing Statements, as applicable. In resolving any disputed item, the Independent Auditor: (i) shall be bound to the principles of this Section 2.6 (including Schedule 2.6(a)), (ii) shall limit its review to matters specifically set forth in the Dispute Notice, and (iii) shall not assign a value to any item higher than the highest value for such item claimed by either party or lower than the lowest value for such item claimed by either party. The parties shall use commercially reasonable efforts to cause the Independent Auditor to complete its work and render its determination within thirty (30) calendar days of its engagement. The costs, fees and expenses of the Independent Auditor shall be allocated to and borne by the Purchaser, on the one hand, and the Sellers as a group, on the other hand, (with each Seller responsible only for its Pro Rata Share of the Sellers’ portion) based on the inverse of the percentage that the Independent Auditor’s determination (before such allocation) bears to the total amount of the total items in dispute as originally submitted to the Independent Auditor. For example, should the items in dispute total in amount to $1,000 and the Independent Auditor awards $600 in favor of the Purchaser’s position, 60% of the costs of the Independent Auditor’s review would be borne by Sellers as a group group, (with each Seller responsible only for its Pro Rata Share of such costs), ) and 40% of the costs would be borne by the Purchaser.
(e) For greater certainty, each of the Closing Date Working Capital, Closing Date Working Capital Statement, Draft Closing Date Working Capital Statement, Estimated Closing Date Working Capital and Target Working Capital are to be calculated and prepared in a manner consistent, and in accordance with, the indicative Working Capital calculation set forth in Schedule 2.6(a).
Appears in 1 contract
Sources: Securities Purchase Agreement (TreeHouse Foods, Inc.)
Final Closing Date Working Capital Statement. (a) Not later than seventy-five (75) calendar days after the Closing Date, the Purchaser shall, acting in good faith and using all commercially reasonable efforts, cause to be calculated on a basis consistent with the calculation of Estimated Closing Date Working Capital in Section 2.2(b) (and, for greater certainty, the Transaction Expenses shall not be a liability for this purpose), in each case, to be prepared and delivered to the Sellers’ Agent: (i) an unaudited consolidated balance sheet of Alumicorthe Company, as at the end of the day on the day prior to the Closing Date, which balance sheet shall be prepared in accordance with generally accepted accounting principles and on a basis consistent with the preparation of the Financial Statements and the past practices of Alumicor (and where generally accepted accounting principles provide for a range of alternatives, such past practices shall govern) (the “Draft Closing Date Balance Sheet” and, as finally determined pursuant to the provisions of this Section 2.6, 2.6 the “Closing Date Balance Sheet”); and (ii) a statement of Working Capital as at the end of the day on the day prior to the Closing Date (the “Draft Closing Date Working Capital Statement” and, as finally determined pursuant to the provisions of this Section 2.6, the “Closing Date Working Capital Statement”) based on the Draft Closing Date Balance Sheet, which such Draft Closing Date Working Capital Statement shall set out draft Working Capital as at the end of the day on the day prior to the Closing Date (such draft Working Capital as of the Closing Date, as finally determined pursuant to the provisions of this Section 2.6, referred to as the “Closing Date Working Capital”); (iii) to be calculated on a basis consistent with the calculation of Estimated the Closing Income Taxes, (iv) a calculation of the Retained Indebtedness Amount and (v) a calculation of the Closing Date Working Capital in Section 2.2(b) (and, for greater certainty, none of the Credit Facility Debt Amount, the Total Seller Note Amount nor the Transaction Expenses shall be a liability for this purpose), in each case, to be prepared and delivered to the Sellers’ AgentCapex. The Sellers’ Agent shall reasonably cooperate with the Purchaser and its accountants to the extent required to prepare the Draft Closing Date Balance Sheet and Sheet, the Draft Closing Date Working Capital Statement and the calculation of the Closing Income Taxes, the Retained Indebtedness Amount and the Closing Date Capex (collectively, the “Draft Closing Statements”).
(b) During the period from the date the Draft Closing Statements are delivered by the Purchaser to the Sellers’ Agent through the date such statements are finally determined in accordance with the terms of this Section 2.6, the Purchaser shall and shall cause each of the Purchaser’s, the Company’s and Alumicorthe Company’s Subsidiaries’ respective Representatives to reasonably cooperate with the Sellers’ Agent and the Sellers’ Agent’s Representatives and to provide the Sellers’ Agent and the Sellers’ Agent’s Representatives full access to the work papers of the PurchaserPurchaser relating to the Company, Alumicor the Company’s Subsidiaries and their respective Representatives in connection with the review of the Draft Closing Statements, and the Purchaser shall make reasonably available to the Sellers’ Agent and the Sellers’ Agent’s Representatives individuals responsible for the preparation of the Draft Closings Statements in order to respond to inquiries of the Sellers’ Agent related thereto.
(c) If the Sellers’ Agent notifies the Purchaser that the Sellers agree with any of the Draft Closing Statements within thirty forty-five (3045) days after receipt thereof or fails to deliver notice to the Purchaser of its disagreement therewith within such thirty forty-five (3045) day period, any such Draft Closing Statements shall be conclusive and binding on the Sellers and the Purchaser and the parties shall be deemed to have agreed thereto, in the first case, on the date the Purchaser receives the notice and, in the second case, on such thirtieth forty-fifth (30th45th) day. If the Sellers’ Agent disagrees with any of the Draft Closing Statements or the calculation of Closing Date Working Capital as set forth therein, then the Sellers’ Agent shall notify the Purchaser of its disagreement (the “Dispute Notice”) within such thirty forty-five (3045) day period together with reasonable particulars of the basis of such dispute, including the Sellers’ Agent’s position on the amounts in dispute (and the resulting Sellers’ Agent position on the amount of the Closing Date Working Capital). In such event, the Sellers’ Agent and the Purchaser shall work expeditiously and attempt, in good faith, to resolve their differences with respect thereto within thirty fifteen (3015) days after the receipt by the Purchaser of the Dispute Notice and make any amendments to the Draft Closing Statements as mutually agreed to by the parties.
(d) Any dispute over any of the Draft Closing Statements or the calculation of Closing Date Working Capital as set forth in the Dispute Notice not resolved by the Purchaser and the Sellers’ Agent within such thirty fifteen (3015) day period after receipt of the Dispute Notice (or such other period as the parties may agree) shall be submitted to the Independent Auditor to determine such dispute, and such determination shall be final and binding on the parties. The Independent Auditor shall allow the Purchaser and the Sellers’ Agent to present their respective positions regarding the dispute (provided that, for greater certainty, such presentations are limited to matters described in the Dispute Notice) and each of the Purchaser and the Sellers’ Agent shall have the right to present additional documents, materials and other information, and make an oral presentation to the Independent Auditor, regarding such dispute and the Independent Auditor shall consider such additional documents, materials and other information and such oral presentation. Any such other documents, materials or other information shall be copied to each of the Purchaser and the Sellers and each of the Sellers and the Purchaser shall be entitled to attend any such oral presentation. The Independent Auditor shall determine, based solely on such presentations from the Sellers’ Agent and the Purchaser and not by independent review, only those issues in dispute specifically set forth in the Dispute Notice and shall render a written report (the “Adjustment Report”) to the Sellers, the Sellers’ Agent and the Purchaser in which the Independent Auditor shall, after considering all matters set forth in the Dispute Notice, determine what adjustments, if any, should be made to the Draft Closing Date Balance Sheet, the Draft Closing Date Working Capital Statement and the Closing Date Working Capital. The Adjustment Report shall set forth, in reasonable detail, the Independent Auditor’s determination with respect to each of the disputed items or amounts specified in the Dispute Notice, and the revisions, if any, to be made to any of the Draft Closing Statements and/or the Closing Date Working Capital, together with supporting calculations, and the parties shall make such revisions to the Draft Closing Statements, as applicable. In resolving any disputed item, the Independent AuditorAuditor shall: (i) shall be bound to the principles of this Section 2.6 (including Schedule 2.6(a)), (ii) shall limit its review to matters specifically set forth in the Dispute Notice, and (iii) shall not assign a value to any item higher than the highest value for such item claimed by either party or lower than the lowest value for such item claimed by either party. The parties shall use commercially reasonable efforts to cause the Independent Auditor to complete its work and render its determination within thirty (30) calendar days of its engagement. The costs, fees and expenses of the Independent Auditor shall be allocated to and borne by the Purchaser, on the one hand, and the Sellers as a group, on the other hand, (with each Seller responsible only for its Pro Rata Share of the Sellers’ portion) based on the inverse of the percentage that the Independent Auditor’s determination (before such allocation) bears to the total amount of the total items in dispute as originally submitted to the Independent Auditor. For example, should the difference in the dollar amount of the items in dispute total in amount to $1,000 and the Independent Auditor awards $600 in favor of the Purchaser’s position, 60% of the costs of the Independent Auditor’s review would be borne by Sellers as a group group, (with each Seller responsible only for its Pro Rata Share of such costs), ) and 40% of the costs would be borne by the Purchaser.
(e) For greater certainty, each of the Closing Date Working Capital, Closing Date Working Capital Statement, Draft Closing Date Working Capital Statement, Estimated Closing Date Working Capital and Target Working Capital are to be calculated and prepared in a manner consistent, and in accordance with, the indicative Working Capital calculation set forth in Schedule 2.6(a).
Appears in 1 contract