Post-Closing Purchase Price Adjustment. As promptly as practicable, but no later than 90 days after the Closing Date, the Buyer will cause to be prepared and delivered to the Seller (i) a working capital statement, which shall reflect, as of the Closing Date, the current assets transferred to the Buyer in accordance with Section 1.1(a) and the current liabilities assumed by the Buyer in accordance with Section 1.2 (the "Closing Working Capital Statement"), which shall be prepared in accordance with GAAP and subject to the permitted adjustments and qualifications set forth in Schedule 1.5(a) and (ii) a certificate of a senior officer of the Buyer, setting forth the amount of the Net Working Capital of the Business as of the Closing Date (the "Closing Net Working Capital Amount") and the amount of any adjustment to the Initial Purchase Price pursuant to this Section 1.5, if any, together with supporting calculations (the "Adjustment Certificate"). The Seller shall have 30 days from the date on which the Closing Working Capital Statement and the Adjustment Certificate are delivered to it to review such documents (the "Review Period"). In furtherance of the foregoing, the Buyer shall give the Seller and its authorized representatives reasonable access (subject to the execution of such customary confidentiality and other undertakings as may be requested by the Buyer's independent auditor) to all books, records, files and other documents, personnel, offices and other facilities and properties of the Business as the Seller may reasonably require in order to review and verify the Closing Working Capital Statement and the Adjustment Certificate; provided, however, that any such access shall be conducted in such a manner as not to interfere unreasonably with the normal operation of the Business. If the Seller disagrees in any respect with any item or amount shown or reflected in the Closing Working Capital Statement or the Adjustment Certificate or with the calculation of the Closing Net Working Capital Amount, the Seller may, on or prior to the last day of the Review Period, deliver a notice to the Buyer setting forth, in reasonable detail the elements and/or amounts with which it disagrees (the "Dispute Notice"). If no Dispute Notice is received by the Buyer on or prior to the last day of the Review Period, the Closing Working Capital Statement and the Adjustment Certificate shall be deemed accepted by the Seller. In the event that the Seller delivers a Dispute Notice to the Buyer, the Buyer or the Seller, as the case may be, will concurrently pay to the other party any undisputed portion of the Closing Net Working Capital Amount set forth in the Adjustment Certificate.
Appears in 1 contract
Sources: Asset Purchase Agreement (Pdi Inc)
Post-Closing Purchase Price Adjustment. As promptly as practicable, but no later than 90 (a) Within sixty (60) days after following the Closing Date, the Buyer will cause to be prepared and delivered Purchaser shall provide to the Seller Sellers a notice (ithe “Statement”) a working capital statement, which shall reflect, as setting forth and certifying in reasonable detail the Purchaser’s calculation of the Closing DatePurchase Price, calculated pursuant to Section 2.2, and the Purchaser’s good faith estimate of any Leakage (the “Calculated Leakage”) and of any Additional Equity (the “Calculated Additional Equity”), in each case, including each component thereof and supporting documentation. After the date that the Purchaser delivers the Statement to the Sellers and until the completion of the Final Statement, the current assets transferred to the Buyer in accordance with Section 1.1(a) Purchaser shall provide, and the current liabilities assumed by Purchaser and the Buyer Company shall cause each Group Company to provide, the Sellers and any accountants (and/or other representatives) of the Sellers with reasonable access, in accordance such manner as to not interfere with Section 1.2 (the "Closing Working Capital Statement")normal operations of any Group Company, which shall be prepared in accordance with GAAP during normal business hours, upon reasonable advance notice, under reasonable circumstances and subject to the permitted adjustments and qualifications set forth in Schedule 1.5(a) and restrictions under applicable Law, to (ii) a certificate of a senior officer of the Buyer, setting forth the amount of the Net Working Capital of the Business as of the Closing Date (the "Closing Net Working Capital Amount") and the amount right to examine) the relevant properties, books, work papers, records and materials of any adjustment to Group Company for purposes of reviewing the Initial Purchase Price pursuant to this Section 1.5Statement, if any, together with supporting calculations (disputing the "Adjustment Certificate"). The Seller shall have 30 days from the date on which the Closing Working Capital Statement and the Adjustment Certificate are delivered to it to review such documents (the "Review Period"). In furtherance of the foregoing, the Buyer shall give the Seller and its authorized representatives reasonable access (subject to the execution of such customary confidentiality and other undertakings as may be requested by the Buyer's independent auditor) to all books, records, files and other documents, personnel, offices and other facilities and properties of the Business as the Seller may reasonably require in order to review and verify the Closing Working Capital Statement and the Adjustment Certificateand/or agreeing upon a Final Statement; provided, however, that all information provided to a Seller, its accountants and any such access shall be conducted in such a manner as not to interfere unreasonably with the normal operation of the Business. If the Seller disagrees in any respect with any item or amount shown or reflected in the Closing Working Capital Statement or the Adjustment Certificate or with the calculation of the Closing Net Working Capital Amount, the Seller may, on or prior to the last day of the Review Period, deliver a notice to the Buyer setting forth, in reasonable detail the elements and/or amounts with which it disagrees (the "Dispute Notice"). If no Dispute Notice is received by the Buyer on or prior to the last day of the Review Period, the Closing Working Capital Statement and the Adjustment Certificate their respective representatives shall be deemed accepted by the Sellerto be “Information” for purposes of this Agreement and shall be kept confidential in accordance with Section 6.3 hereof. In the event that the Seller delivers Purchaser fails to deliver the Statement to the Sellers within sixty (60) days following the Closing Date, the Closing Certificate shall automatically become the Final Statement, the Estimated Leakage shall automatically become the Calculated Leakage, the Estimated Additional Equity shall become the Calculated Additional Equity, and each shall be final and binding on the Purchaser and each Seller, and no further adjustment of any kind shall be made pursuant to this Section 2.4.
(b) The Sellers shall have thirty (30) days after the Purchaser’s delivery to the Sellers of the Statement during which to notify the Purchaser in writing (a “Dispute Notice”) of any dispute of any item, calculation or other matter contained in the Statement, which Dispute Notice shall set forth in reasonable detail a description of the dispute, and the adjustments to the Statement, the Calculated Leakage and the Calculated Additional Equity that the Sellers believe should be made. If the Sellers do deliver a Dispute Notice during such thirty (30) day period, then only those items, calculations and other matters that are specified in such Dispute Notice shall be deemed in dispute and all other items, calculations and matters set forth in the Statement shall be final and binding upon the Purchaser and each Seller. If the Sellers fail to deliver a Dispute Notice to the BuyerPurchaser within such thirty (30) day period or if the Sellers at any time during such thirty (30) day period notify the Purchaser in writing that the Sellers agree with the Statement in its entirety, then the Statement shall become final and binding upon the Purchaser and each Seller, and shall be deemed to be the Final Statement. In the event that the Sellers shall deliver a Dispute Notice to the Purchaser within such thirty (30) day period, the Buyer Purchaser and each Seller shall cooperate in good faith to resolve any dispute(s) specified therein as promptly as possible and any resolution by them as to any items, calculations and other matters specified in the Dispute Notice shall be final and binding on the Purchaser and each Seller.
(c) If the Purchaser and the Sellers are unable to resolve any dispute specified in a Dispute Notice within thirty (30) days of the Sellers’ delivery of such Dispute Notice, such dispute shall be resolved by a jointly-selected, nationally-recognized accounting firm (the “Independent Accounting Firm”) retained by the Sellers and the Purchaser to resolve any remaining disputes between the Purchaser and the Sellers specified in the Dispute Notice. The Independent Accounting Firm, acting as experts and not as arbitrators, shall determine, in accordance with the applicable definitions herein of the applicable disputed items, and only with respect to the remaining disputed items, calculations and other matters specified in the Dispute Notice, whether and to what extent, if any, the Statement requires adjustment. In resolving any disputed item calculation or other matter specified in a Dispute Notice, the SellerIndependent Accounting Firm may not assign a value to any item calculation or other matter greater than the greatest value for such item or other matter claimed by either party or less than the smallest value for such item calculation or other matter claimed by either party. If the Purchaser and the Sellers cannot jointly agree on an Independent Accounting Firm, the Purchaser and the Sellers shall each submit to their respective accountants the name of an accounting firm (which shall not be one of their respective accounting firms), and the Independent Accounting Firm shall be selected by lot from these firms by the respective accountants of the parties. The Independent Accounting Firm shall be instructed by the Purchaser and the Sellers to use commercially reasonable efforts to perform its services within thirty (30) days after submission of the Statement and the Dispute Notice to it and, in any case, as soon as practicable after submission. The “Final Statement” shall be deemed to be (i) the case may beClosing Certificate if no Statement is delivered by the Purchaser within the sixty (60) day period specified in Section 2.4(a); (ii) the Statement if no Dispute Notice is delivered by the Sellers within the thirty (30) day period specified in Section 2.4(b); (iii) the Statement if the Sellers notify the Purchaser in writing that the Sellers agree with the Statement in its entirety at any time during the thirty (30) day period specified in Section 2.4(b); or (iv) if a Dispute Notice is delivered by the Sellers within the thirty (30) day period specified in Section 2.4(b), will concurrently pay the Statement as adjusted by (A) the written agreement of the Sellers and the Purchaser and/or (B) the written determination of the Independent Accounting Firm. The Final Statement shall be final and binding on the Purchaser and each Seller. Any fees and expenses relating to the other party any undisputed portion engagement of the Independent Accounting Firm shall be borne equally between the Purchaser, on the one hand, and the Sellers, on the other hand.
(d) Within five (5) Business Days after the date that the Statement becomes the Final Statement in accordance with Section 2.4(c), the Closing Net Working Capital Amount Purchase Price with respect to any Leakage and Additional Equity shall be adjusted (if required) as follows (such Closing Purchase Price as so adjusted the “Final Purchase Price”):
(i) if the Calculated Leakage as set forth in the Adjustment CertificateFinal Statement is greater than the Estimated Leakage, the Purchase Price shall be adjusted downward in an amount equal to the difference between the Calculated Leakage as set forth in the Final Statement and the Estimated Leakage; or
(ii) if the Calculated Leakage as set forth in the Final Statement is less than the Estimated Leakage, the Purchase Price shall be adjusted upwards in an amount equal to the difference between the Calculated Leakage as set forth in the Final Statement and the Estimated Leakage; and
(iii) if the Calculated Additional Equity as set forth in the Final Statement is greater than the Estimated Additional Equity, the Purchase Price shall be adjusted upwards in an amount equal to the difference between the Calculated Additional Equity as set forth in the Final Statement and the Estimated Additional Equity; or
(iv) if the Calculated Additional Equity as set forth in the Final Statement is less than the Estimated Additional Equity, the Purchase Price shall be adjusted downward in an amount equal to the difference between the Calculated Additional Equity as set forth in the Final Statement and the Estimated Additional Equity. The date the Final Purchase Price is determined pursuant to this Section 2.4(d) is referred to herein as the “Final Determination Date”. If the Final Purchase Price as reflected in the Final Statement exceeds the Closing Purchase Price (such difference, the “Positive Amount”), the Relevant Proportion of the Positive Amount shall be paid by the Purchaser to each Seller within five (5) Business Days of the Final Determination Date in cash by wire transfer of immediately available funds to such account as such Seller may direct by written notice to the Purchaser. If the Closing Purchase Price exceeds the Final Purchase Price as reflected in the Final Statement such difference (the “Negative Amount”), the Sellers shall pay such Negative Amount to the Purchaser within five (5) Business Days of the Final Determination Date in cash by wire transfer of immediately available funds to such account as the Purchaser may direct by written notice to the Sellers.
Appears in 1 contract
Post-Closing Purchase Price Adjustment. As promptly as practicable, but no later than 90 (a) Within 120 days after the Closing Date, Seller shall prepare, with the Buyer will cause to be prepared assistance of Buyer's employees, and delivered to deliver a statement (the Seller (i) a working capital statement, which shall reflect"Preliminary Statement"), as of the Closing Date, updating the current assets transferred to Initial Inventory Value so that it reflects the Buyer in accordance with Section 1.1(a) and the current liabilities assumed by the Buyer in accordance with Section 1.2 (the "Closing Working Capital Statement"), which shall be prepared in accordance with GAAP and subject to the permitted adjustments and qualifications set forth in Schedule 1.5(a) and (ii) a certificate of a senior officer of the Buyer, setting forth the amount of the Net Working Capital of the Business Inventory Value as of the Closing Date based only on a roll forward basis from September 30, 1996, with no changes other than to update the Initial Inventory Value from September 30, 1996, using the identical principles, procedures, estimates, judgments, pricing and other practices used in determining the Initial Inventory Value as of September 30, 1996. Subject to the limitations of Section 3.05(e), if Buyer has any objections to the Preliminary Statement, Buyer must deliver to Seller within 30 days after delivery of the Preliminary Statement (but such delivery shall not be required earlier than 90 days after Closing) a detailed statement describing such objections thereto (the "Closing Net Working Capital Amount") and the amount of any adjustment to the Initial Purchase Price pursuant to this Section 1.5, if any, together with supporting calculations (the "Adjustment Certificate"). The Seller shall have 30 days from the date on which the Closing Working Capital Statement and the Adjustment Certificate are delivered to it to review such documents (the "Review Period"). In furtherance of the foregoing, the Buyer shall give the Seller and its authorized representatives reasonable access (subject to the execution of such customary confidentiality and other undertakings as may be requested by the Buyer's independent auditor) to all books, records, files and other documents, personnel, offices and other facilities and properties of the Business as the Seller may reasonably require in order to review and verify the Closing Working Capital Statement and the Adjustment Certificate; provided, however, that any such access shall be conducted in such a manner as not to interfere unreasonably with the normal operation of the Business. If the Seller disagrees in any respect with any item or amount shown or reflected in the Closing Working Capital Statement or the Adjustment Certificate or with the calculation of the Closing Net Working Capital Amount, the Seller may, on or prior to the last day of the Review Period, deliver a notice to the Buyer setting forth, in reasonable detail the elements and/or amounts with which it disagrees (the "Dispute NoticeStatement"). If no Dispute Notice a Buyer's Statement is received by not delivered to Seller within such time period, the Buyer on or prior to the last day determination of the Review Period, the Closing Working Capital Statement and the Adjustment Certificate shall be deemed accepted by the Seller. In the event that the Seller delivers a Dispute Notice to the Buyer, the Buyer or the Seller, as the case may be, will concurrently pay to the other party any undisputed portion of the Closing Net Working Capital Amount Inventory Value set forth in the Adjustment CertificatePreliminary Statement will be final, binding, and non-appealable by the Parties. The Parties will negotiate in good faith to resolve any such objections, but if they do not reach a final resolution within 30 days after Seller has received the Buyer's Statement, such matter shall be resolved as provided in Section 3.05(b). Buyer's representatives shall be entitled to observe all physical inventories that are conducted in connection with and/or inspect all work papers, calculations and documents related to Seller's updating of the Initial Inventory Value, and to inspect all work papers, schedules and other supporting materials relating to, the preparation of the Preliminary Statement.
(b) In the event any objections to the Preliminary Statement are not resolved by Seller and Buyer within the 30 day period following delivery of the Buyer's Statement pursuant to Section 3.05(a), such unresolved objections shall be submitted for resolution to an internationally recognized independent certified public accountant located in Boston, Massachusetts, or New York, New York, selected by the mutual agreement of Seller and Buyer within 20 days after the end of such 30 day period. If Seller and Buyer are unable to mutually agree upon an internationally recognized certified public accountant within such 20 day period, then Seller and Buyer shall each select an internationally recognized certified public accountant and within five days of their selection those two accountants shall select a third internationally recognized certified public accountant located in Boston, Massachusetts, or New York, New York, which third accountant shall arbitrate the claim in question. In such event, each of Seller and Buyer must select its accountant within 10 days after the end of the 20 day period described above, and if any Party shall fail to select an accountant within such 10 day period, the accountant selected by the other such Party shall select another internationally recognized certified public accountant, and such two accountants shall select the third accountant, all within 20 days after the end of such 10 day period. The accountant arbitrating a dispute (as the sole arbitrator) shall be required to submit its decision to Seller and Buyer within 30 days of appointment, which decision shall be final and binding on the Parties and shall constitute an arbitral award that is final, binding and unappealable and upon which a judgment may be entered by any court having jurisdiction thereof. The reasonable fees of the accountant that settles the claim in question and any accountant selected by an accountant selected by a Party when the other Party has failed to select an accountant shall be borne by either or both Seller and Buyer in inverse proportion to the degree of success of such Party by virtue of said decision as determined by the accountant settling the claim. The reasonable fees of any other accountant selected by a particular Party shall be borne by such Party.
(c) The Inventory Value, as finally determined in accordance with Sections 3.05(a) or 3.05
Appears in 1 contract
Post-Closing Purchase Price Adjustment. (a) As promptly as practicable, but no later than 90 days after the Closing DateDate (as hereinafter defined), the Buyer Seller will cause to be prepared and delivered to the Seller Buyer (i) a working capital statementthe consolidated balance sheet of the Company as of December 31, which 1998 (the "Closing Balance Sheet") and the related consolidated statements of income (with related footnotes, the "1998 Income Statement", all of which, notwithstanding the foregoing shall reflectbe delivered no later than March 31, 1999 for purposes of Section 1.3), changes in stockholders' equity and cash flows of the Company for the year then ended (collectively, the "Closing Financials"), prepared in accordance with the Applicable Accounting Principles (as hereinafter defined) accompanied by the draft opinion of Deloitte & Touche LLP, independent auditors for the Seller, (ii) if the Closing Date shall not have occurred by December 31, 1998, the consolidated balance sheet of the Company as of the Closing Date, the current assets transferred to the Buyer in accordance with Section 1.1(a) and the current liabilities assumed by the Buyer in accordance with Section 1.2 related audited statements of income (the "Closing Working Capital Stub Period Income Statement"), changes in stockholders' equity and cash flows of the Company (collectively, the "Stub Period Financials"), accompanied by the draft opinion of Deloitte & Touche LLP, for the period commencing January 1, 1999 and ending on the Closing Date (the "Stub Period"), which Stub Period Financials shall be prepared in accordance with GAAP and subject to the permitted adjustments and qualifications set forth in Schedule 1.5(a) Applicable Accounting Principles; and (iiiii) a certificate of a senior the chief financial officer or chief accounting officer of the BuyerSeller, setting forth the "Closing Equity" (as hereinafter defined), the amount of the Net Working Capital consolidated net income (loss) of the Business as of Company for the Closing Date Stub Period (the "Closing Net Working Capital AmountStub Period Income (Loss)") ), and the amount of any adjustment to the Initial Purchase Price Closing Date Cash Payment pursuant to this Section 1.5, if any1.2, together with supporting calculations (the "Adjustment Certificate"). Deloitte & Touche LLP shall perform all audit procedures and processes on the Closing Financials and the Stub Period Financials necessary to sign and deliver an auditor's report thereon, and the Closing Financials and the Stub Period Financials shall be accompanied by the draft auditor's report thereon from the Seller's accountants to the effect that (x) the Closing Financials present fairly the consolidated financial position, results of operations and cash flows of the Company as of the close of business on December 31, 1998 (and for the year then ended) and (y) if applicable, the Stub Period Financials present fairly the consolidated financial position, results of operations and cash flows of the Company as of the close of business on the Closing Date (and for the Stub Period), in accordance with the Applicable Accounting Principles. The Seller Buyer shall have 30 90 days from the date on which the latest of the Closing Working Capital Statement Financials, the Stub Period Financials and the Adjustment Certificate are delivered to it to review such documents (the "Review Period"). In furtherance The parties hereto and their respective accountants shall be provided with customary access (of the foregoing, nature and extent provided Buyer's accountants in connection with their review of the Buyer shall give Annual Financial Statements) to the Seller and its authorized representatives reasonable access work papers of the Seller's accountants (subject to the execution of such customary confidentiality and other undertakings as may be requested by the Buyer's independent auditorentry into a customary waiver and indemnification agreement with Seller's accountants) to all books, records, files in connection with the preparation and other documents, personnel, offices and other facilities and properties review of the Business as the Seller may reasonably require in order to review and verify the Closing Working Capital Statement Financials and the Adjustment Certificate; providedStub Period Financials, however, that any such access shall be conducted in such a manner as not to interfere unreasonably with the normal operation of the Businessif applicable. If the Seller Buyer disagrees in any respect with any item or amount shown or reflected in the Closing Working Capital Statement Financials, the Stub Period Financials or the Adjustment Certificate or with the calculation of the Closing Net Working Capital AmountEquity or the Stub Period Income (Loss) or the proposed adjustment to the Closing Date Cash Payment pursuant to this Section 1.2, the Seller Buyer may, on or prior to the last day of the Review Period, deliver a written notice to the Buyer Seller setting forth, in reasonable detail detail, each disputed item or amount and the elements and/or amounts with which it disagrees basis for the Buyer's disagreement therewith (the "Dispute Notice"). If no Dispute Notice is received by the Buyer Seller on or prior to the last day of the Review Period, then the Closing Working Capital Statement Financials, the Stub Period Financials and the Adjustment Certificate shall be deemed accepted by the Buyer.
(b) For 30 days after the Seller's receipt of a Dispute Notice, the parties shall endeavor in good faith to resolve by mutual agreement all matters in the Dispute Notice. In the event that the Seller delivers a parties are unable to resolve by mutual agreement, any matter in the Dispute Notice to the Buyerwithin such 30-day period, the Buyer or and the Seller, Seller hereby agree that they shall engage PriceWaterhouseCoopers LLC as the case may be"Accountant" (if PriceWaterhouseCoopers LLC is unable or unwilling to serve as the Accountant, will concurrently pay to the other party any undisputed portion parties' respective financial advisors shall, within 15 days of the Closing Net Working Capital Amount set forth end of such 30-day period, agree on an alternate independent accounting firm), in the Adjustment Certificaterespect of this Section 1.
Appears in 1 contract
Post-Closing Purchase Price Adjustment. (a) As promptly soon as practicable, but no later than 90 days reasonably practicable after the Closing Date, and in any event, within ninety (90) days thereof, Buyer shall prepare and deliver to Seller a statement (the Buyer will cause to be prepared and delivered to “Closing Statement”) setting forth the Seller calculation of (i) a working capital statementthe aggregate amount of Cash of the Sold Companies (the “Closing Date Cash”), which shall reflect(ii) the aggregate amount of Indebtedness of the Sold Companies (the “Closing Date Indebtedness”), and (iii) Net Working Capital (the “Closing Date Net Working Capital”), in the case of clauses (i) – (iii) above calculated as of the Closing Date, the current assets transferred to the Buyer Effective Time in accordance with Section 1.1(athe Agreed Accounting Principles and without giving effect to the Transactions (other than the Pre-Closing Transfers).
(b) After receipt of the Closing Statement from Buyer, Seller shall have forty-five (45) days to review the Closing Statement (the “Review Period”) and the current liabilities assumed by the notify Buyer in accordance with Section 1.2 (the "Closing Working Capital Statement"), which shall be prepared in accordance with GAAP and subject writing prior to the permitted adjustments and qualifications set forth in Schedule 1.5(a) and (ii) a certificate of a senior officer expiration of the BuyerReview Period of any dispute or objection thereto, setting forth in reasonable detail the amount of the Net Working Capital of the Business as of the Closing Date (the "Closing Net Working Capital Amount") and the amount particular items of any adjustment to such dispute or objection (such written notice, the Initial Purchase Price pursuant to this Section 1.5, if any, together with supporting calculations (the "Adjustment Certificate"“Objection”). The If Seller shall have 30 days from the date on which the Closing Working Capital Statement and the Adjustment Certificate are delivered to it to review such documents (the "Review Period"). In furtherance has not notified Buyer of the foregoing, the Buyer shall give the Seller and its authorized representatives reasonable access (subject to the execution of such customary confidentiality and other undertakings as may be requested by the Buyer's independent auditor) to all books, records, files and other documents, personnel, offices and other facilities and properties of the Business as the Seller may reasonably require in order to review and verify the Closing Working Capital Statement and the Adjustment Certificate; provided, however, that any such access shall be conducted in such a manner as not to interfere unreasonably with the normal operation of the Business. If the Seller disagrees in any respect with any item or amount shown or reflected in the Closing Working Capital Statement or the Adjustment Certificate or with the calculation of the Closing Net Working Capital Amount, the Seller may, on or prior to the last day of an Objection within the Review Period, deliver a notice then the Closing Statement shall be deemed to have been accepted by the parties and shall become final, binding and conclusive. Seller and Buyer setting forthshall, within thirty (30) days (or such longer period as Seller and Buyer may agree in reasonable detail the elements and/or amounts with which it disagrees writing) following delivery of an Objection to Buyer (the "Dispute Notice"“Resolution Period”). If no Dispute Notice is received , attempt in good faith to resolve their differences, all such discussions and communications related thereto shall (unless otherwise agreed by the Buyer on or prior to the last day and Seller) be governed by Rule 408 of the Review PeriodFederal Rules of Evidence and any applicable similar state rule, and any resolution by them as to any disputed amounts shall be final, binding and conclusive. Any items agreed to by Seller and Buyer in writing, together with any items not disputed or objected to by Seller in the Objection, are collectively referred to herein as the “Resolved Matters”.
(c) From and after the Closing, Buyer shall (and shall cause the Sold Companies to) provide Seller and its representatives with reasonable access during normal business hours to, the books, records (including work papers, schedules, memoranda and other documents), and supporting data and will use its commercially reasonable efforts to make available its employees and auditors used in the preparation of the Closing Working Capital Statement for purposes of reviewing the Closing Statement. Buyer and Seller shall cooperate fully with each other party and its or their representatives in connection with their respective review of the Closing Statement and the Adjustment Certificate shall be deemed accepted by the Seller. In the event that the Seller delivers a Dispute Notice to the Buyer, the Buyer or the SellerObjection, as the case may be, will concurrently pay including providing on a timely basis all other information and copies of records or other documents of the Business necessary or useful in connection with the review of the Closing Statement and the Objection as is reasonably requested by such other party or its or their representatives; provided, however, that the accountants of Buyer shall not be obliged to make any work papers available to Seller or its representatives except in accordance with such accountant’s normal disclosure procedures and then only after such Person has signed a customary agreement relating to such access to work papers in form and substance reasonably acceptable to such accountants.
(d) If at the end of the Resolution Period Seller and Buyer have been unable to resolve any differences that they may have with respect to the matters specified in the Objection, Seller and Buyer shall refer all matters that remain in dispute with respect to the Objection (the “Unresolved Matters”) to Deloitte & Touche LLP (or if such firm is unable or unwilling to accept such engagement, an internationally recognized independent public accounting firm that has not provided material services to either Seller or Buyer or their respective Affiliates in the preceding three (3) years as jointly selected by Seller and Buyer or, if Seller and Buyer are unable to agree within five (5) Business Days from the end of the Resolution Period, then such internationally recognized independent public accounting firm jointly selected by Seller’s and Buyer’s independent accountants within five (5) Business Days thereafter) (such firm, as finally selected, the “Accounting Firm”). Seller and Buyer each agree to promptly sign an engagement letter, in commercially reasonable form, as may reasonably be required by the Accounting Firm. Each of Buyer and Seller shall submit to the Accounting Firm (with a copy delivered to the other party any undisputed portion on the same day), within ten (10) Business Days after the date of the engagement of the Accounting Firm, a memorandum (which may include supporting exhibits) setting forth their respective positions with respect to the Unresolved Matters. Each of Buyer and Seller may (but shall not be required to) submit to the Accounting Firm (with a copy delivered to the other party on the same day), within ten (10) Business Days after the date of the engagement of the Accounting Firm, a memorandum responding to the initial memorandum submitted to the Accounting Firm by the other party. Unless requested by the Accounting Firm in writing, no party hereto may present any additional information or arguments to the Accounting Firm, either orally or in writing. None of Seller, Buyer or any of their respective Affiliates or representatives shall have any ex parte communications or meetings with the Accounting Firm regarding the subject matter hereof without the other party’s prior written consent. The Accounting Firm shall be given reasonable access to all relevant records of the Business to calculate the Closing Net Working Capital Amount set forth in Statement. The Accounting Firm shall act as an expert and not as an arbitrator to calculate, based solely on the Adjustment Certificate.written submissions of Buyer, on the one hand, and Seller, on the other hand, and only with respect to the Unresolved Matters submitted and without independent investigation, whether and to what extent the Closing Statement requires adjustments
Appears in 1 contract
Post-Closing Purchase Price Adjustment. (a) As promptly soon as practicable, but no later than 90 days reasonably practicable after the Closing Date, the and in any event, within ninety (90) days thereof, Buyer will cause shall prepare and deliver to be prepared and delivered to the Seller (i) a working capital statement, which shall reflect, as of the Closing Date, the current assets transferred to the Buyer in accordance with Section 1.1(a) and the current liabilities assumed by the Buyer in accordance with Section 1.2 statement (the "Closing Working Capital Statement"), which shall be prepared in accordance with GAAP and subject to the permitted adjustments and qualifications set forth in Schedule 1.5(a) and (ii) a certificate of a senior officer of the Buyer, setting forth the calculation of (i) the aggregate amount of the Net Working Capital Cash of the Business as of the Closing Date Sold Companies (the "Closing Date Cash"), (ii) the aggregate amount of Indebtedness of the Sold Companies (the "Closing Date Indebtedness"), and (iii) Net Working Capital Amount") and the amount of any adjustment to the Initial Purchase Price pursuant to this Section 1.5, if any, together with supporting calculations (the "Adjustment CertificateClosing Date Net Working Capital"). The , in the case of clauses (i) – (iii) above calculated as of the Effective Time in accordance with the Agreed Accounting Principles and without giving effect to the Transactions (other than the Pre-Closing Transfers).
(b) After receipt of the Closing Statement from Buyer, Seller shall have 30 forty-five (45) days from the date on which to review the Closing Working Capital Statement and the Adjustment Certificate are delivered to it to review such documents (the "Review Period") and notify Buyer in writing prior to the expiration of the Review Period of any dispute or objection thereto, setting forth in reasonable detail the particular items of any such dispute or objection (such written notice, the "Objection"). In furtherance If Seller has not notified Buyer of an Objection within the Review Period, then the Closing Statement shall be deemed to have been accepted by the parties and shall become final, binding and conclusive. Seller and Buyer shall, within thirty (30) days (or such longer period as Seller and Buyer may agree in writing) following delivery of an Objection to Buyer (the "Resolution Period"), attempt in good faith to resolve their differences, all such discussions and communications related thereto shall (unless otherwise agreed by Buyer and Seller) be governed by Rule 408 of the foregoingFederal Rules of Evidence and any applicable similar state rule, and any resolution by them as to any disputed amounts shall be final, binding and conclusive. Any items agreed to by Seller and Buyer in writing, together with any items not disputed or objected to by Seller in the Objection, are collectively referred to herein as the "Resolved Matters".
(c) From and after the Closing, Buyer shall give (and shall cause the Sold Companies to) provide Seller and its authorized representatives with reasonable access (subject to during normal business hours to, the execution of such customary confidentiality and other undertakings as may be requested by the Buyer's independent auditor) to all books, recordsrecords (including work papers, files schedules, memoranda and other documents), personneland supporting data and will use its commercially reasonable efforts to make available its employees and auditors used in the preparation of the Closing Statement for purposes of reviewing the Closing Statement. Buyer and Seller shall cooperate fully with each other party and its or their representatives in connection with their respective review of the Closing Statement and the Objection, offices as the case may be, including providing on a timely basis all other information and copies of records or other facilities and properties documents of the Business as necessary or useful in connection with the Seller may reasonably require in order to review and verify of the Closing Working Capital Statement and the Adjustment CertificateObjection as is reasonably requested by such other party or its or their representatives; provided, however, that the accountants of Buyer shall not be obliged to make any work papers available to Seller or its representatives except in accordance with such accountant's normal disclosure procedures and then only after such Person has signed a customary agreement relating to such access to work papers in form and substance reasonably acceptable to such accountants.
(d) If at the end of the Resolution Period Seller and Buyer have been unable to resolve any differences that they may have with respect to the matters specified in the Objection, Seller and Buyer shall refer all matters that remain in dispute with respect to the Objection (the "Unresolved Matters") to Deloitte & Touche LLP (or if such firm is unable or unwilling to accept such engagement, an internationally recognized independent public accounting firm that has not provided material services to either Seller or Buyer or their respective Affiliates in the preceding three (3) years as jointly selected by Seller and Buyer or, if Seller and Buyer are unable to agree within five (5) Business Days from the end of the Resolution Period, then such internationally recognized independent public accounting firm jointly selected by Seller's and Buyer's independent accountants within five (5) Business Days thereafter) (such firm, as finally selected, the "Accounting Firm"). Seller and Buyer each agree to promptly sign an engagement letter, in commercially reasonable form, as may reasonably be required by the Accounting Firm. Each of Buyer and Seller shall submit to the Accounting Firm (with a copy delivered to the other party on the same day), within ten (10) Business Days after the date of the engagement of the Accounting Firm, a memorandum (which may include supporting exhibits) setting forth their respective positions with respect to the Unresolved Matters. Each of Buyer and Seller may (but shall not be required to) submit to the Accounting Firm (with a copy delivered to the other party on the same day), within ten (10) Business Days after the date of the engagement of the Accounting Firm, a memorandum responding to the initial memorandum submitted to the Accounting Firm by the other party. Unless requested by the Accounting Firm in writing, no party hereto may present any additional information or arguments to the Accounting Firm, either orally or in writing. None of Seller, Buyer or any of their respective Affiliates or representatives shall have any ex parte communications or meetings with the Accounting Firm regarding the subject matter hereof without the other party's prior written consent. The Accounting Firm shall be conducted given reasonable access to all relevant records of the Business to calculate the Closing Statement. The Accounting Firm shall act as an expert and not as an arbitrator to calculate, based solely on the written submissions of Buyer, on the one hand, and Seller, on the other hand, and only with respect to the Unresolved Matters submitted and without independent investigation, whether and to what extent the Closing Statement requires adjustments and shall be instructed that its calculation (A) must be made in such a manner as not to interfere unreasonably strict accordance with the normal operation terms of this Agreement and the Business. If Agreed Accounting Principles, without regard to principles of equity, and (B) with respect to each Unresolved Matter, must be within the range of values established for such amount as determined by reference to the value assigned to such amount by Seller disagrees in any respect with any item or amount shown or reflected the Objection and by Buyer in the Closing Working Capital Statement. Seller and Buyer shall request the Accounting Firm to (i) submit its final written determination to Seller and Buyer as soon as practicable, but in any event within thirty (30) Business Days after the Accounting Firm's engagement, and (ii) prepare the Final Closing Statement or the Adjustment Certificate or (which shall be consistent with the calculation Resolved Matters and the final determination of the Accounting Firm of the Unresolved Matters) and calculate the Final Purchase Price based on such Final Closing Net Working Capital Amount, Statement. The Accounting Firm's final written determination shall be conclusive and binding upon Seller and Buyer. The "Final Closing Statement" shall be (i) in the event that no Objection is delivered by Seller may, on or to Buyer prior to the last day of the Review Period, deliver a notice to the Buyer setting forth, in reasonable detail the elements and/or amounts with which it disagrees (the "Dispute Notice"). If no Dispute Notice is received by the Buyer on or prior to the last day expiration of the Review Period, the Closing Working Capital Statement delivered by Buyer to Seller pursuant to Section 2.5(a), (ii) in the event that an Objection is delivered by Seller to Buyer prior to the expiration of the Review Period, the Closing Statement delivered by Buyer to Seller pursuant to Section 2.5(a) as adjusted pursuant to the agreement of Seller and Buyer in writing or (iii) in the event that an Objection is delivered by Seller to Buyer prior to the expiration of the Review Period and Seller and Buyer are unable to agree on all matters set forth in such Objection, the Closing Statement delivered by Buyer to Seller pursuant to Section 2.5(a) as adjusted by the Accounting Firm to be consistent with the Resolved Matters and the Adjustment Certificate shall be deemed accepted by final determination of the SellerAccounting Firm of the Unresolved Matters in accordance with this Section 2.5(d). In the event the Final Closing Statement is determined (x) pursuant to clause (i) or (ii) of the immediately preceding sentence, Buyer shall prepare the Final Closing Statement and calculate the Final Purchase Price, in each case, in strict accordance with the terms of this Agreement, and deliver such items to Seller within three (3) Business Days following the determination thereof or (y) pursuant to clause (iii) of the immediately preceding sentence, the Accounting Firm shall prepare the Final Closing Statement (which shall be consistent with the Resolved Matters and the final determination of the Accounting Firm of the Unresolved Matters) and calculate the Final Purchase Price based on the Final Closing Statement, in each case, in strict accordance with the terms of this Agreement, and deliver such items to Seller and Buyer within three (3) Business Days following the delivery of the final written determination of the Accounting Firm to Seller and Buyer. The date on which the Final Closing Statement is finally determined and delivered in accordance with this Section 2.5(d) is hereinafter referred to as the "Eligibility Date".
(e) Buyer and Seller agree that the Seller delivers a Dispute Notice to the Buyer, the Buyer or the Seller, as the case may be, will concurrently pay to the other party any undisputed portion of the Closing Net Working Capital Amount procedures set forth in this Section 2.5 for resolving disputes with respect to the Adjustment Certificatecalculation of Closing Statement shall be the sole and exclusive method for resolving any such disputes; provided that this provision shall not prohibit any party from instituting litigation to enforce any decision pursuant to the terms hereof by the Accounting Firm in any court of competent jurisdiction. The substance of the Accounting Firm's determination shall not be subject to review or appeal, absent a showing of fraud. It is the intent of the parties to have any determination of Unresolved Matters by the Accounting Firm proceed in an expeditious manner; provided, however, any deadline or time period contained herein may be extended or modified by agreement of the parties, and the parties agree that the failure of the Accounting Firm to strictly conform to any deadline or time period contained herein shall not be a basis for seeking to overturn any determination rendered by the Accounting Firm. Any fees and expenses relating to the engagement of the Accounting Firm in respect of its services pursuant to this Section 2.5 shall be shared by Seller and Buyer so that Seller's share of such fees and expenses shall be in the same proportion that the aggregate amount that is unsuccessfully disputed by Seller bears to the total amount initially disputed by Seller.
Appears in 1 contract
Sources: Stock Purchase Agreement (Caci International Inc /De/)
Post-Closing Purchase Price Adjustment. (a) As promptly as practicablepracticable after the Closing, but in no later event more than 90 sixty (60) days after the Closing Date, the Buyer will cause to be prepared shall in good faith prepare and delivered deliver to the Seller WM Parent (i) a working capital statement, which shall reflect, as on behalf of the Sellers), a statement indicating the Buyer’s calculation of the Asset Purchase Price Adjustment (the “Closing DateDate Statement”) in each case, together with reasonable supporting detail.
(b) Until such time as the current assets transferred to the Buyer Final Closing Date Statement shall become final in accordance with Section 1.1(a) and the current liabilities assumed by the Buyer in accordance with Section 1.2 (the "Closing Working Capital Statement"1.5(c), which shall be prepared in accordance with GAAP and subject to the permitted adjustments and qualifications set forth in Schedule 1.5(a) and (ii) a certificate of a senior officer of the Buyer, setting forth the amount of the Net Working Capital of the Business as of the Closing Date (the "Closing Net Working Capital Amount") and the amount of any adjustment to the Initial Purchase Price pursuant to this Section 1.5, if any, together with supporting calculations (the "Adjustment Certificate"). The Seller shall have 30 days from the date on which the Closing Working Capital Statement and the Adjustment Certificate are delivered to it to review such documents (the "Review Period"). In furtherance of the foregoing, the Buyer shall, and shall give cause its Affiliates, as applicable, to permit the Seller WM Parent (on behalf of the Sellers) or its Representatives at reasonable times and its authorized representatives upon reasonable notice, such access (subject to the execution of such customary confidentiality books, records and other undertakings as may be requested by the Buyer's independent auditor) to all books, records, files and other documents, personnel, offices and other facilities and properties information of the Business Buyer and such Affiliates and the Assets as the Seller may reasonably require in order to review and verify the Closing Working Capital Statement and the Adjustment Certificate; provided, however, that any such access shall be conducted in such a manner as not to interfere unreasonably with the normal operation WM Parent (on behalf of the Business. If Sellers) reasonably requests, but, in each case, only to the Seller disagrees in any respect with any item or amount shown or reflected in the Closing Working Capital Statement or the Adjustment Certificate or with extent (i) relevant to the calculation of the Closing Net Working Capital AmountDate Statement or the WM Parent’s or its Representatives’ review thereof and (ii) that such access does not unreasonably interfere with the business and operations of the Buyer, such Affiliates or the Assets, to aid in the WM Parent’s (on behalf of the Sellers) review of the Closing Date Statement. The Buyer shall cooperate in good faith to answer any questions raised by the WM Parent (on behalf of the Sellers) or its Representatives in connection with their review of the Closing Date Statement.
(c) Within thirty (30) days after its receipt of the Closing Date Statement, the Seller mayWM Parent (on behalf of the Sellers) shall inform the Buyer in writing that such Closing Date Statement is acceptable or object thereto in writing, setting forth in reasonable detail a description of each of its objections. If the WM Parent so objects and the Buyer and the WM Parent do not resolve such objections on a mutually agreeable basis within thirty (30) days after the Buyer’s receipt of the WM Parent’s objections, the remaining disputed items shall be submitted to ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP or, if ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP is not available for such engagement or prior at the time of such proposed engagement is no longer independent, such other nationally recognized independent certified public accounting firm reasonably agreed to by the Buyer and the WM Parent (▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP or such other accounting firm agreed to by the Buyer or the WM Parent or appointed as contemplated by the succeeding sentence, the “Accounting Firm”). If the Buyer and the WM Parent cannot agree on an accounting firm within ten (10) days of determining that an Accounting Firm other than ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP must be appointed as contemplated by the preceding sentence, then the Buyer or the WM Parent may submit a request to the last day American Arbitration Association requesting appointment of a nationally recognized independent certified public accounting firm to serve as the Accounting Firm. The Buyer and the WM Parent shall direct the Accounting Firm to resolve such disputed items within thirty (30) days of submission of the Review Perioddisputed items. Upon the agreement of the Buyer and the WM Parent (on behalf of the Sellers), the decision of the Accounting Firm, or the failure of WM Parent (on behalf of the Sellers) to deliver a notice an objection to the Buyer setting forthwithin the first 30-day period referred to above, in reasonable detail the elements and/or amounts with which it disagrees (the "Dispute Notice"). If no Dispute Notice is received Closing Date Statement, as adjusted as agreed by the Buyer on and the WM Parent in writing or prior as decided by the Accounting Firm, if applicable (the “Final Closing Date Statement”), shall be final, conclusive and binding against the Parties. As set forth in the Final Closing Date Statement, the calculation of the Asset Purchase Price Adjustment (the “Final Asset Purchase Price Adjustment”) shall be final for all purposes hereunder.
(d) In resolving any disputed item, the Accounting Firm (i) shall be bound by the provisions of this Section 1.5, (ii) may not assign a value to any item greater than the greatest value claimed for such item or less than the smallest value for such item claimed by either the WM Parent or the Buyer (except to the last day extent that the resolution of a disputed item results in a corresponding change to any other item), (iii) shall limit its decision to such items as are in dispute and (iv) shall make its determination based solely on presentations by the WM Parent and the Buyer which are in accordance with the guidelines and procedures set forth in this Agreement (i.e., not on the basis of independent review). The fees, costs and expenses of the Review PeriodAccounting Firm shall be allocated by the Accounting Firm between the WM Parent on the one hand, and the Buyer, on the other hand, in the same proportion that the aggregate amount of the disputed items so submitted to the Accounting Firm are unsuccessfully disputed by each such Party (as finally determined by the Accounting Firm) bears to the total amount of such disputed items so disputed. Neither the Buyer nor the WM Parent nor any of their respective Affiliates or Representatives shall engage in ex parte communications with the Accounting Firm. Absent manifest error, the Closing Working Capital Statement and determination of the Adjustment Certificate Accounting Firm shall be deemed accepted by conclusive and binding upon the Seller. In Parties and shall not be subject to appeal or further review.
(e) Within three (3) Business Days following the determination of the Final Purchase Price in accordance with this Section 1.5:
(i) in the event that the Seller delivers a Dispute Notice Final Purchase Price exceeds the Estimated Purchase Price, the Buyer shall deliver, or cause to be delivered, to the WM Parent (on behalf of the Sellers), by wire transfer of immediately available funds to the bank account(s) designated by the WM Parent prior to the Time of Closing, payment in an amount equal to (A) the Final Purchase Price minus (B) the Estimated Purchase Price; and
(ii) in the event that the Estimated Purchase Price exceeds the Final Purchase Price, the WM Parent shall deliver, or cause to be delivered to the Buyer, by wire transfer of immediately available funds to bank accounts designated by the Buyer or prior to such date, an amount equal to (A) the Seller, Estimated Purchase Price minus (B) the Final Purchase Price.
(f) The Parties agree that any payment made pursuant to this Section 1.5 shall be treated as the case may be, will concurrently pay an adjustment to the other party any undisputed portion of Estimated Purchase Price and the Closing Net Working Capital Amount set forth in Final Purchase Price for all Tax purposes, except to the Adjustment Certificateextent otherwise required by applicable Law.
Appears in 1 contract
Sources: Securities and Asset Purchase Agreement (Advanced Disposal Services, Inc.)
Post-Closing Purchase Price Adjustment. (a) As promptly soon as practicable, but no later than 90 days reasonably practicable after the Closing Date, and in any event, within ninety (90) days thereof, Buyer shall prepare and deliver to Seller a statement (the Buyer will cause to be prepared and delivered to “Closing Statement”) setting forth with reasonable supporting detail the Seller calculation of (i) a working capital statementthe aggregate amount of Cash of the Sold Companies (the “Closing Date Cash”), which shall reflect(ii) the aggregate amount of Indebtedness of the Sold Companies (the “Closing Date Indebtedness”), (iii) the aggregate amount of Transaction Expenses, if any (the “Closing Transaction Expenses”) and (iv) Net Working Capital (the “Closing Date Net Working Capital”), in each case, calculated as of the Closing Date, the current assets transferred to the Buyer Effective Time in accordance with Section 1.1(athe Agreed Accounting Principles without giving effect to the Transactions (other than the Pre-Closing Transfers).
(b) After receipt of the Closing Statement from Buyer, Seller shall have forty- five (45) days to review the Closing Statement (the “Review Period”) and notify Buyer in writing prior to the current liabilities assumed expiration of the Review Period of any dispute or objection thereto (such written notice, the “Objection”). If Seller has not notified Buyer of an Objection within the Review Period then the Closing Statement shall be deemed to have been accepted by the parties and shall become final, binding and conclusive. Seller and Buyer shall, within thirty (30) days (or such longer period as Seller and Buyer may agree in writing) following delivery of an Objection to Buyer (the “Resolution Period”), attempt in good faith to resolve their differences, all such discussions and communications related thereto shall (unless otherwise agreed by Buyer and Seller) be governed by Rule 408 of the Federal Rules of Evidence and any applicable similar state rule, and any resolution by them as to any disputed amounts shall be final, binding and conclusive. Any items agreed to by Seller and Buyer in accordance writing, together with Section 1.2 any items not disputed or objected to by Seller in the Objection, are collectively referred to herein as the “Resolved Matters”.
(c) From and after the "Closing Working Capital Statement"Closing, Buyer shall, and shall cause the Sold Companies to (i) assist Seller and Representatives of Seller in their review of, and provide Seller and Representatives of Seller with reasonable access upon reasonable notice during normal business hours to, the books, records (including work papers, schedules, memoranda and other documents), which shall be prepared in accordance with GAAP supporting data, facilities, employees and subject to auditors and other applicable agents of the permitted adjustments and qualifications set forth in Schedule 1.5(a) Sold Companies for purposes of reviewing the Closing Statement, and (ii) cooperate fully with Seller and its Representatives in connection with such review, including providing on a certificate timely basis all other information and copies of a senior officer records or other documents necessary or useful in connection with the review of the Closing Statement as is requested by Seller and its Representatives.
(d) If at the end of the Resolution Period Seller and Buyer have been unable to resolve all differences that they may have with respect to the matters specified in the Objection, Seller and Buyer shall refer all matters that remain in dispute with respect to the Objection (the “Unresolved Matters”) to ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP (or if such firm is unable or unwilling to accept such engagement, an internationally recognized independent public accounting firm that has not provided material services to either Seller or Buyer or their respective Affiliates in the preceding three (3) years as jointly selected by Seller and Buyer or, if Seller and Buyer are unable to agree within five (5) Business Days from the end of the Resolution Period, then such internationally recognized independent public accounting firm jointly selected by Seller’s and Buyer’s independent accountants within five (5) Business Days thereafter) (such firm, as finally selected, the “Accounting Firm”). Seller and Buyer each agree to promptly sign an engagement letter, in commercially reasonable form, as may reasonably be required by the Accounting Firm. Each of Buyer and Seller shall submit to the Accounting Firm (with a copy delivered to the other party on the same day), within ten (10) Business Days after the date of the engagement of the Accounting Firm, a memorandum (a “Submission”) (which may include supporting exhibits) setting forth their respective positions with respect to the amount Unresolved Matters. Each of Buyer and Seller may (but shall not be required to) submit to the Accounting Firm (with a copy delivered to the other party on the same day), within twenty (20) Business Days after the date of the Net Working Capital engagement of the Accounting Firm, a memorandum responding to Submission submitted to the Accounting Firm by the other party. Unless requested by the Accounting Firm in writing, no party hereto may present any additional information or arguments to the Accounting Firm, either orally or in writing. None of Seller, Buyer or any of their respective Affiliates or Representatives shall have any ex parte communications or meetings with the Accounting Firm regarding the subject matter hereof without the other party’s prior written consent. The Accounting Firm shall be given reasonable access to all relevant records of the Business to calculate the Closing Statement. The Accounting Firm shall act as an expert and not as an arbitrator to calculate, based solely on the Submissions of Buyer, on the one hand, and Seller, on the other hand, and only with respect to the Unresolved Matters submitted and without independent investigation, whether and to what extent the Closing Statement requires adjustments and shall be instructed that its calculation (A) must be made in strict accordance with the terms of this Agreement and the Agreed Accounting Principles, without regard to principles of equity, and (B) with respect to each Unresolved Matter, must be within the range of values established for such amount as determined by reference to the value assigned to such amount in the Submissions of Buyer, on the one hand, and Seller, on the other hand. Seller and Buyer shall request the Accounting Firm to (i) submit its final written determination to Seller and Buyer as soon as practicable, but in any event within twenty (20) Business Days after the Accounting Firm’s engagement, and (ii) prepare the Final Closing Statement (which shall be consistent with the Resolved Matters and the final determination of the Closing Date (Accounting Firm of the "Closing Net Working Capital Amount"Unresolved Matters) and calculate the amount of any adjustment to the Initial Final Purchase Price pursuant to this Section 1.5, if any, together with supporting calculations (the "Adjustment Certificate")based on such Final Closing Statement. The Seller Accounting Firm’s final written determination shall have 30 days from the date on which the Closing Working Capital Statement be conclusive and the Adjustment Certificate are delivered to it to review such documents (the "Review Period"). In furtherance of the foregoing, the Buyer shall give the binding upon Seller and its authorized representatives reasonable access (subject to the execution of such customary confidentiality and other undertakings as may be requested by the Buyer's independent auditor) to all books, records, files and other documents, personnel, offices and other facilities and properties of the Business as the Seller may reasonably require in order to review and verify the absent manifest error. The “Final Closing Working Capital Statement and the Adjustment Certificate; provided, however, that any such access Statement” shall be conducted in such a manner as not to interfere unreasonably with the normal operation of the Business. If the Seller disagrees in any respect with any item or amount shown or reflected (i) in the Closing Working Capital Statement or the Adjustment Certificate or with the calculation of the Closing Net Working Capital Amount, the event that no Objection is delivered by Seller may, on or to Buyer prior to the last day of the Review Period, deliver a notice to the Buyer setting forth, in reasonable detail the elements and/or amounts with which it disagrees (the "Dispute Notice"). If no Dispute Notice is received by the Buyer on or prior to the last day expiration of the Review Period, the Closing Working Capital Statement delivered by Buyer to Seller pursuant to Section 2.10(a), (ii) in the event that an Objection is delivered by Seller to Buyer prior to the expiration of the Review Period, the Closing Statement delivered by Buyer to Seller pursuant to Section 2.10(a) as adjusted pursuant to the agreement of Seller and Buyer in writing or (iii) in the event that an Objection is delivered by Seller to Buyer prior to the expiration of the Review Period and Seller and Buyer are unable to agree on all matters set forth in such Objection, the Closing Statement delivered by Buyer to Seller pursuant to Section 2.10(a) as adjusted by the Accounting Firm to be consistent with the Resolved Matters and the Adjustment Certificate shall be deemed accepted by final determination of the SellerAccounting Firm of the Unresolved Matters in accordance with this Section 2.10(d). In the event that the Final Closing Statement is determined (x) pursuant to clause (i) or (ii) of the immediately preceding sentence, Buyer shall prepare the Final Closing Statement and calculate the Final Purchase Price, in each case, in strict accordance with the terms of this Agreement, and deliver such items to Seller delivers a Dispute Notice within three (3) Business Days following the determination thereof or (y) pursuant to clause (iii) of the Buyerimmediately preceding sentence, the Accounting Firm shall prepare the Final Closing Statement (which shall be consistent with the Resolved Matters and the final determination of the Accounting Firm of the Unresolved Matters) and calculate the Final Purchase Price based on the Final Closing Statement, in each case, in strict accordance with the terms of this Agreement, and deliver such items to Seller and Buyer or within three (3) Business Days following the Seller, delivery of the final written determination of the Accounting Firm to Seller and Buyer. The date on which the Final Closing Statement is finally determined and delivered in accordance with this Section 2.10(d) is hereinafter referred to as the case may be, will concurrently pay to the other party any undisputed portion of the Closing Net Working Capital Amount set forth in the Adjustment Certificate“Determination Date”.
Appears in 1 contract
Sources: Stock and Asset Purchase Agreement (L3 Technologies, Inc.)
Post-Closing Purchase Price Adjustment. (a) As promptly as practicable, but no later than 90 practicable and in any event within ninety (90) days after the Closing Date, the Buyer will cause to be prepared shall prepare and delivered deliver to the Seller Holder Representative a statement (the “Buyer’s Statement”) setting forth in reasonable detail its calculation of (i) a working capital statement, which shall reflect, as of the Closing DateNet Working Capital, (ii) the current assets transferred to Closing Cash, (iii) Closing Indebtedness and (iv) the Buyer in accordance with Section 1.1(a) and the current liabilities assumed by the Buyer in accordance with Section 1.2 (the "Closing Working Capital Statement"), which Transaction Expenses. The Buyer’s Statement shall be unaudited but shall be prepared in accordance a manner consistent with GAAP the Accounting Principles and subject to the permitted adjustments and qualifications set forth in Schedule 1.5(a) and (ii) a certificate of a senior officer of the Buyer, setting forth the amount of the Net Working Capital Calculation, including as to line items and the classification of asset and liability line items set forth thereon.
(b) After delivery of the Business as of the Closing Date (the "Closing Net Working Capital Amount") and the amount of any adjustment to the Initial Purchase Price pursuant to this Section 1.5Buyer’s Statement, if any, together with supporting calculations (the "Adjustment Certificate"). The Seller shall have 30 days from the date on which the Closing Working Capital Statement and the Adjustment Certificate are delivered to it to review such documents (the "Review Period"). In furtherance of the foregoing, the Buyer shall give the Seller Holder Representative reasonable access, at reasonable times and its authorized representatives upon reasonable advance notice, to review the work papers, schedules, memoranda and other documents prepared or reviewed by Parent, Buyer, the Surviving Company and their respective Representatives in connection with the preparation of the Buyer’s Statement and Parent, Buyer and the Surviving Company shall cause their respective Representatives to reasonably cooperate with and respond to such inquiries and otherwise reasonably cooperate with the Holder Representative in the review of the Buyer’s Statement, including by providing reasonable access (subject to the execution books and records of such the Surviving Company in connection therewith, provided however, that the independent accountants of Parent, Buyer or the Surviving Company shall not be obligated to make any working papers available to the Holder Representative unless and until the Holder Representative has signed a customary confidentiality and other undertakings as may be requested by the Buyer's hold harmless agreement relating to such access to working papers in form and substance reasonably acceptable to such independent auditor) to all books, records, files and other documents, personnel, offices and other facilities and properties of the Business as the Seller may reasonably require in order to review and verify the Closing Working Capital Statement and the Adjustment Certificateaccountants; provided, howeverfurther, that any such access shall be conducted subject to such additional limitations as Parent may reasonably require to prevent material disruption of the business of Parent or the Surviving Company and their respective Subsidiaries, the disclosure of any confidential or legally privileged information, or the disclosure or use of any personal information other than in such compliance with applicable privacy or data protection Laws. Parent shall use commercially reasonable efforts not to, and shall cause its Subsidiaries (including the Surviving Company) to use commercially reasonable efforts not to, take any action to limit the Holder Representative’s access to the books and records of, and the current and former personnel and advisors of, the Surviving Company and its Subsidiaries in a manner as not that would frustrate the purposes of this Section 2.4.
(c) Within forty-five (45) days after delivery of the Buyer’s Statement to interfere unreasonably the Holder Representative, the Holder Representative will advise Buyer in writing whether it agrees with the normal operation of Buyer’s Statement or whether the BusinessHolder Representative objects to it. If the Seller disagrees in Holder Representative disputes any respect with any item or amount shown or amounts reflected in on the Closing Working Capital Statement or the Adjustment Certificate or with the calculation of the Closing Net Working Capital AmountBuyer’s Statement, the Seller mayit shall deliver to Buyer a statement setting forth its objections thereto, on or prior to the last day of the Review Period, deliver a notice to the Buyer setting forth, in reasonable detail detail, the elements and/or basis for such dispute, the dollar amounts with which it disagrees involved and the Holder Representative’s calculation of the Buyer’s Statement, within forty-five (45) days of Buyer’s delivery of the "Dispute Notice"Buyer’s Statement to the Holder Representative (such written notice of objection, the “Objection Statement”). If no Dispute Notice an Objection Statement is received not delivered to Parent within forty-five (45) days after delivery of the Buyer’s Statement to the Holder Representative, the Buyer’s Statement shall be final, binding and non-appealable by the Buyer on parties hereto absent fraud or prior manifest error. The Holder Representative and Parent shall negotiate in good faith to resolve any objections made by the last day Holder Representative in the Objection Statement, but if they do not reach a final resolution within thirty (30) days after the delivery of the Review PeriodObjection Statement, either the Holder Representative or Parent may submit the issues in the Objection Statement that remain in dispute for final resolution to PricewaterhouseCoopers or if such firm is unable to serve, to an independent certified public accounting firm of national reputation mutually agreed by the Holder Representative and Parent (the firm so determined, the Closing Working Capital “Independent Accountant”). Each Party agrees to execute, if requested by the Independent Accountant, a reasonable and customary engagement letter, including customary indemnities. The Independent Accountant shall consider only those items and amounts in the Objection Statement which Parent and the Holder Representative are unable to resolve and only on the basis that (i) an amount reflected in the Buyer’s Statement does not reflect, or has not been made in a manner consistent with, the provisions of this Agreement and (ii) an amount reflected in the Buyer’s Statement (if different from an amount reflected in the balance sheet of the Company as of March 31, 2018 included in the Financial Statements) is based on facts or occurrences arising solely between March 31, 2018 and the Adjustment Certificate shall be deemed accepted by the SellerTime. In resolving any item of dispute, the Independent Accountant may not assign a value to any item greater than the greatest value for such item claimed by either Parent and the Holder Representative or less than the smallest value for such item claimed by either Parent or the Holder Representative. Parent and the Holder Representative shall use their commercially reasonable efforts to cause the Independent Accountant to resolve all disagreements in the Objection Statement as soon as practicable and in any event that within thirty (30) days after the Seller delivers a Dispute Notice submission of any dispute to the BuyerIndependent Accountant. The Independent Accountant shall make its determination (x) based solely on the documentation submitted by, the Buyer and presentations made by, Parent and Holder Representative (any such documentation or the Seller, as the case may be, will concurrently pay presentation must be provided to the other party any undisputed prior to its submission or presentation to the Independent Accountant) and (y) in a manner consistent with the Accounting Principles and the Net Working Capital Calculation and the definitions of Estimated Purchase Price, Final Purchase Price and Net Working Capital (and each of the defined terms used in each of those terms or in which those terms are used and the related provisions of this Agreement). The resolution of the dispute by the Independent Accountant shall be final, binding and non-appealable on the parties hereto absent fraud or manifest error. The costs and expenses of the Independent Accountant shall be borne by Parent and the Holder Representative (solely on behalf of the Company Members) based on the percentage which the portion of the Closing Net Working Capital contested amount not awarded to such Party bears to the amount actually contested by such Party, as finally determined by the Independent Accountant. During the review by the Independent Accountant, the Holder Representative and Parent shall each make available to the Independent Accountant such party’s current and former personnel and such information, books, records and work papers, as may be reasonably required by the Independent Accountant to fulfill its obligations under this Section 2.4; provided, however, that the independent accountants of the Holder Representative or Parent shall not be obligated to make any working papers available to the Independent Accountant unless and until the Independent Accountant has signed a customary confidentiality and hold harmless agreement relating to such access to working papers in form and substance reasonably acceptable to such independent accountants.
(d) Promptly following the determination of the Final Purchase Price, and in any event within five (5) Business Days thereof, the Holder Representative shall deliver to Buyer the Updated Distribution Waterfall.
(e) If the Final Purchase Price is greater than the Estimated Purchase Price, no later than five (5) Business Days after the Final Purchase Price has been determined, Buyer shall (and Parent shall cause Buyer to) deposit with the Paying Agent an amount equal to the excess of (i) the Final Purchase Price minus (ii) the Estimated Purchase Price for payment of the Purchase Price Increase Per Interest Payment owed, with respect to all Company Membership Interests, to the former Company Members. The Paying Agent shall promptly disburse the funds received pursuant to this Section 2.4(e) to the former Company Members in accordance with the Updated Distribution Waterfall and in accordance with this Article II.
(f) If the Final Purchase Price is less than or equal to the Estimated Purchase Price, Buyer shall reduce any Deferred Payment Amount set forth (subject to Section 8.4) dollar-for-dollar in an aggregate amount equal to the Adjustment CertificateEstimated Purchase Price minus the Final Purchase Price, which reduction shall be Parent’s sole and exclusive remedy with respect thereto.
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Post-Closing Purchase Price Adjustment. (a) As promptly soon as practicable, but no later than 90 days reasonably practicable after the Closing Date, the and in any event within 60 days thereof, Buyer will cause prepare and deliver to Seller a statement setting forth the Buyer’s calculation of (i) the Cash, (ii) the Company Indebtedness, (iii) Net Working Capital, (iv) the resulting Net Working Capital Adjustment, and (v) the aggregate amount of Company Transaction Expenses, in each case as of immediately prior to the Closing (such statement being referred to as the “Buyer Closing Statement”). The Buyer Closing Statement, the Final Closing Statement and the component items thereof will be prepared and delivered to calculated in accordance with the Seller (i) a working capital statement, which shall reflect, as of Accounting Principles. Following the Closing Date, Buyer will, upon prior reasonable notice by Seller (1) permit, and will cause the current assets transferred relevant Company Group Member to the Buyer in accordance with Section 1.1(a) and the current liabilities assumed by the Buyer in accordance with Section 1.2 (the "Closing Working Capital Statement")permit, which shall be prepared in accordance with GAAP and subject to the permitted adjustments and qualifications set forth in Schedule 1.5(a) and (ii) a certificate of a senior officer of the Buyer, setting forth the amount of the Net Working Capital of the Business as of the Closing Date (the "Closing Net Working Capital Amount") and the amount of any adjustment to the Initial Purchase Price pursuant to this Section 1.5, if any, together with supporting calculations (the "Adjustment Certificate"). The Seller shall have 30 days from the date on which the Closing Working Capital Statement and the Adjustment Certificate are delivered to it to review such documents (the "Review Period"). In furtherance of the foregoing, the Buyer shall give the Seller and its authorized advisors and representatives reasonable access (subject to the execution of such customary confidentiality and other undertakings as may be requested by the Buyer's independent auditor) to all books, records, files properties, premises, work papers, personnel and other documents, personnel, offices and other facilities and properties information of the Business as the Company Group to permit Seller may reasonably require in order and its advisors and representatives to review the Buyer Closing Statement or to address any dispute described in this Section 2.6 and verify (2) cooperate fully, and will cause the relevant Company Group Member to cooperate fully, with Seller and its advisors and representatives in connection with such review or any dispute, including providing on a timely basis all other information necessary or useful in connection with the review of the Buyer Closing Working Capital Statement and the Adjustment Certificate; as is reasonably requested by Seller or its advisors or representatives, provided, however, that any such access shall or cooperation will be conducted provided during normal business hours under the supervision of the applicable personnel of Buyer or any Company Group Member and in such a manner as to maintain the confidentiality of the relevant information and not to interfere unreasonably with the normal operation operations of the BusinessCompany Group. If The Parties agree that the Seller disagrees purpose of preparing and calculating the Cash, the Company Indebtedness, Net Working Capital, and the Company Transaction Expenses is to measure changes in any respect with any item such amounts without the introduction of new or amount shown different accounting methods, policies, practices, procedures, classifications, judgments or reflected in estimation methodologies from the Accounting Principles. The Buyer Closing Working Capital Statement or the Adjustment Certificate or with and the calculation of the amounts therein will entirely disregard (x) any and all effects on the assets or liabilities of the Company Group as a direct result of the Transactions and (y) any of the plans, transactions or changes that Buyer intends to initiate or make or cause to be initiated or made after the Closing Net Working Capital Amount, the Seller may, on or prior with respect to the last day Company Group, or any facts or circumstances that are unique or particular to Buyer or any of its assets or Liabilities.
(b) Seller will, within 60 days following its receipt of the Buyer Closing Statement (the “Review Period”), deliver a accept or reject all or part of the Buyer Closing Statement submitted by Buyer. If Seller disagrees with the Buyer Closing Statement or any calculation therein, then Seller will give written notice to Buyer of such dispute and any reason therefor within such 60-day period. Should Seller fail to provide Buyer with a written notice of dispute within such 60-day period, Seller will be deemed to agree with the Buyer setting forth, in reasonable detail the elements and/or amounts with which it disagrees (the "Dispute Notice"). If no Dispute Notice is received Closing Statement as provided by the Buyer on or prior to the last day of the Review Period, the Closing Working Capital Statement and the Adjustment Certificate shall be deemed accepted by the SellerBuyer. In the event there is a dispute, Buyer and Seller will attempt to reconcile their differences, and any written resolution by them as to any disputed amounts will be final, binding and conclusive on the Parties. Any items agreed to by Seller and Buyer in writing, together with any items not disputed or objected to by Seller in a dispute notice, are collectively referred to herein as the “Resolved Matters”. If Seller and Buyer are unable to reach a resolution with such effect within 30 days after the receipt by Buyer of Seller’s written notice of dispute, Seller and Buyer will submit the items remaining in dispute (the “Unresolved Matters”) for resolution to: (i) Ernst & Young (the “Designated Accounting Firm”) or (ii) if the Designated Accounting Firm is unwilling or unable to serve, to an independent nationally recognized accounting firm mutually agreed upon by Seller and Buyer which firm is not the regular auditing firm of either Seller or Buyer or (iii) if Seller and Buyer are not able to mutually select an Independent Accountant within two (2) Business Days of the Designated Accounting Firm confirming that it is unwilling or unable to serve, the Parties shall cause their regular auditing firm to choose a third independent nationally recognized accounting firm (other than the Designated Accounting Firm and any accounting firm that is the regular auditing firm of either Seller or Buyer) to serve as the Independent Accountant, and such third accounting firm shall be the Independent Accountant (such identified or selected firm determined in accordance with sub-clauses (i) to (iii) above, the “Independent Accountant”). The Independent Accountant will act as an expert, and not an arbitrator, and the Parties will cause the Independent Accountant to use commercially reasonable efforts to issue its report as to its determination of all Unresolved Matters (and only such matters) and the determination of the Adjustment Amounts (as set out in the Buyer Closing Statement but adjusted to take into account its determination of all Unresolved Matters) within 30 days after such dispute is referred to the Independent Accountant. The Independent Accountant will not have the power to modify or amend any term or provision of this Agreement. With respect to each Unresolved Matter, the Independent Accountant’s determination, if not in accordance with the position of either Seller or Buyer, will not be in excess of the higher, nor less than the lower, of the amounts advocated by Seller or Buyer with respect thereto. The Independent Accountant’s final written determination will be conclusive and binding upon the Parties. Buyer on the one hand, and Seller on the other hand, will bear all costs and expenses incurred by them in connection with such determination by the Independent Accountant, except that the Seller delivers a Dispute Notice fees and expenses of the Independent Accountant hereunder will be borne by Buyer, on the one hand, and Seller, on the other hand, in the same proportion that the aggregate amount of Unresolved Matters (in $) submitted to the Buyer, Independent Accountant that is unsuccessfully disputed by each such Party (as finally determined by the Buyer or the Seller, as the case may be, will concurrently pay Independent Accountant) bears to the other party any undisputed portion total amount of such Unresolved Matters submitted (in $). This provision will be specifically enforceable by the Parties, and (in the absence of fraud or manifest error) the decision of the Closing Net Working Capital Amount set forth Independent Accountant in accordance with the Adjustment Certificateprovisions hereof will be final and binding with respect to the Unresolved Matters and there will be no right of appeal therefrom.
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Sources: Membership Interest Purchase Agreement (Roper Technologies Inc)