Closing Date Adjustments. (1) At least five (5) Business Days prior to the Closing Date, Vendor shall cause the Auditors to prepare and Vendor shall deliver to Purchaser: (a) a good faith best estimate of a detailed calculation of the consolidated Working Capital of the Target Entities as of the Effective Time without giving effect to the Transactions (the “Preliminary Closing Working Capital”), including an estimated balance sheet of the Target Entities as of the Effective Time without giving effect to the Transactions; (b) a calculation of the amount by which the Preliminary Closing Working Capital exceeds or is less than, as the case may be, the Target Working Capital; (c) a good faith best estimate of a detailed calculation of the consolidated Indebtedness of the Target Entities as of the Effective Time without giving effect to the Transactions (the “Preliminary Closing Indebtedness”); and (d) a good faith best estimate of a detailed calculation of the consolidated Cash and Cash Equivalents of the Target Entities as of the Effective Time without giving effect to the Transactions (the “Preliminary Cash and Cash Equivalents”); (2) If the Preliminary Closing Working Capital is less than the Target Working Capital, then the Purchase Price will be reduced at Closing by the amount of that difference, subject to any further adjustments as may be prescribed by Section 2.5. If the Preliminary Closing Working Capital is greater than the Target Working Capital, then the Purchase Price will be increased at Closing by the amount of that difference, subject to any further adjustments as may be prescribed by Section 2.5.The Purchase Price will be reduced at Closing by the amount of Preliminary Closing Indebtedness. The Purchase Price shall be increased by the Preliminary Cash and Cash Equivalents. A sample calculation of the determination of the preliminary Purchase Price adjustment is disclosed in the Data Room. The determinations of the preliminary Purchase Price adjustment pursuant to this Section 2.4(2) and the final Purchase Price adjustment pursuant to Section 2.5 shall be made on a basis consistent with the sample calculation. (3) As soon as possible, but not later than ninety (90) days, following the Closing Date, Purchaser shall prepare and deliver to Vendor the following (collectively, the “Closing Statements”): (a) financial statements for the Target Entities on a consolidated basis for the period from the Financial Statements Date to the Effective Time and prepared in accordance with GAAP applied on a basis consistent with the audited financial statements of KML for the year ended December 31, 2017 (the “Closing Financial Statements”); (b) a calculation of the consolidated Working Capital as of the Effective Time of the Target Entities as determined by reference to the balance sheet contained in the Closing Financial Statements (the “Closing Working Capital”); (c) a calculation of the consolidated Indebtedness as of the Effective Time of the Target Entities as determined by reference to the balance sheet contained in the Closing Financial Statements (the “Closing Indebtedness”); (d) a calculation of the consolidated Cash and Cash Equivalents as of the Effective Time of the Target Entities as determined by reference to the balance sheet contained in the Closing Financial Statements (the “Closing Cash and Cash Equivalents”); (e) a calculation of: (i) the amount by which the Closing Working Capital exceeds or is less than, as the case may be, the Preliminary Closing Working Capital; (ii) the amount by which the Closing Indebtedness exceeds or is less than, as the case may be, the Preliminary Closing Indebtedness; (iii) the amount by which the Closing Cash and Cash Equivalents exceeds or is less than, as the case may be, the Preliminary Closing Cash and Cash Equivalents; and (iv) the Purchase Price, as adjusted in accordance with Section 2.5. (4) Vendor and Purchaser shall co-operate fully with each other in the calculation of the Closing Working Capital and the preparation of the Closing Statements. (5) Vendor shall have thirty (30) days from receipt of the Closing Statements within which to review the Closing Statements. For the purposes of this review, Purchaser shall permit and shall cause the Target Entities and the Auditors to permit Vendor and Vendor’s authorized Representatives to examine all working papers, schedules, accounting Books and Records and other documents and information used or prepared by the Target Entities or the Auditors in connection with the preparation of the Closing Statements and to have reasonable access to appropriate personnel of the Target Entities for Vendor to verify the accuracy and presentation and other matters relating to the preparation of the Closing Statements. Vendor may dispute any of the items in the Closing Statements by written notice (an “Objection Notice”) to Purchaser within the same thirty (30) days. If Vendor has not delivered an Objection Notice to Purchaser within this thirty (30) day period, Vendor shall be deemed to have accepted the Closing Statements. If Vendor delivers an Objection Notice, Vendor and Purchaser shall work expeditiously and in good faith in an attempt to resolve all of the items in dispute within fifteen (15) days of receipt of the Objection Notice. If all items in dispute are not resolved within this fifteen (15) day period, the remaining items in dispute shall be referred to a nationally recognized firm of chartered accountants in Canada, selected by Purchaser and acceptable to Vendor, acting reasonably (provided that the firm shall not be the auditors of any Party nor have been paid material consulting fees by any Party within the prior twenty-four (24) months). (6) Each Party shall furnish to the firm chosen in accordance with Section 2.4(5) (the “Independent Auditor”) those working papers, schedules and other documents, accounting books and records and information relating to the items in dispute, that are available to that Party or its auditors (and in the case of Purchaser, the Auditors) as the Independent Auditor may require. The Parties shall instruct the Independent Auditor that time is of the essence in proceeding with its determination of any dispute, and the decision of the Independent Auditor with respect to any item in dispute is to be in writing and, absent any manifest error, is final and binding on Vendor and Purchaser with no rights of challenge, review or appeal to the courts in any manner. The Independent Auditor, in making its determination of any dispute, is acting as an expert and not as an arbitrator and is not required to engage in a judicial inquiry worked out in a judicial manner. (7) On agreement or decision, as the case may be, with respect to all items in dispute, the Closing Statements are deemed to be amended as may be necessary to reflect the agreement or the decision, as the case may be. In this event, references in this Agreement to the Closing Statements will be references to the Closing Statements, as so amended. (8) Vendor shall be responsible for one-half of the fees and expenses of the Independent Auditor and Purchaser shall be responsible for one-half of the fees and expenses of the Independent Auditor but each Party shall be responsible for its own costs and expenses.
Appears in 2 contracts
Samples: Share and Unit Purchase Agreement, Share and Unit Purchase Agreement (Kinder Morgan Canada LTD)
Closing Date Adjustments. (1) At the Closing, the Cash Payment portion of the Closing Purchase Price shall be adjusted as set forth in this Section 1.4(a). At least two (2) Business Days but not more than five (5) Business Days prior to the Closing Date, Vendor shall cause the Auditors to prepare and Vendor Sellers shall deliver to Purchaser: (a) a good faith best estimate of a detailed calculation of the consolidated Working Capital of the Target Entities Buyer an unaudited estimated balance sheet for Descap as of the Effective Time without giving effect to close of business on the Transactions Closing Date (the “Preliminary "Estimated Closing Working Capital”Balance Sheet") which shall (i) set forth Sellers' good faith estimate of Stockholders' Equity (as defined below) (the "Estimated Stockholders' Equity"), including an estimated (ii) contain the same line item categories as those contained in the form of the balance sheet of set forth in Annex B hereto and the Target Entities as of the Effective Time without giving effect to the Transactions; (b) a calculation of the amount by which the Preliminary Closing Working Capital exceeds or is less than, as the case may be, the Target Working Capital; (c) a good faith best estimate of a detailed calculation of the consolidated Indebtedness of the Target Entities as of the Effective Time without giving effect to the Transactions (the “Preliminary Closing Indebtedness”); and (d) a good faith best estimate of a detailed calculation of the consolidated Cash and Cash Equivalents of the Target Entities as of the Effective Time without giving effect to the Transactions (the “Preliminary Cash and Cash Equivalents”);
(2) If the Preliminary Closing Working Capital is less than the Target Working Capital, then the Purchase Price will be reduced at Closing by the amount of that difference, subject to any further adjustments as may be prescribed by Section 2.5. If the Preliminary Closing Working Capital is greater than the Target Working Capital, then the Purchase Price will be increased at Closing by the amount of that difference, subject to any further adjustments as may be prescribed by Section 2.5.The Purchase Price will be reduced at Closing by the amount of Preliminary Closing Indebtedness. The Purchase Price shall be increased by the Preliminary Cash and Cash Equivalents. A sample calculation of the determination of the preliminary Purchase Price adjustment is disclosed balance sheet set forth in the Data Room. The determinations of the preliminary Purchase Price adjustment pursuant to this Section 2.4(2Audited Financial Statements, (iii) and the final Purchase Price adjustment pursuant to Section 2.5 shall be made on a basis consistent with the sample calculation.
(3) As soon as possible, but not later than ninety (90) days, following the Closing Date, Purchaser shall prepare and deliver to Vendor the following (collectively, the “Closing Statements”):
(a) financial statements for the Target Entities on a consolidated basis for the period prepared from the Financial Statements Date to the Effective Time Business Records and prepared in accordance with GAAP GAAP, as in effect from time to time, applied on a basis consistent with the audited financial statements of KML for the year ended December 31, 2017 (the “Closing Financial Statements”);
(b) a calculation of the consolidated Working Capital as of the Effective Time of the Target Entities as determined by reference to the balance sheet contained in the Closing Financial Statements (the “Closing Working Capital”);
(c) a calculation of the consolidated Indebtedness as of the Effective Time of the Target Entities as determined by reference to the balance sheet contained in the Closing Financial Statements (the “Closing Indebtedness”);
(d) a calculation of the consolidated Cash , and Cash Equivalents as of the Effective Time of the Target Entities as determined by reference to the balance sheet contained in the Closing Financial Statements (the “Closing Cash and Cash Equivalents”);
(e) a calculation of:
(i) the amount by which the Closing Working Capital exceeds or is less than, as the case may be, the Preliminary Closing Working Capital;
(ii) the amount by which the Closing Indebtedness exceeds or is less than, as the case may be, the Preliminary Closing Indebtedness;
(iii) the amount by which the Closing Cash and Cash Equivalents exceeds or is less than, as the case may be, the Preliminary Closing Cash and Cash Equivalents; and
(iv) the Purchase Price, as adjusted in accordance with Section 2.5.
(4) Vendor and Purchaser shall coreflect no write-operate fully with each other up of any individual asset of Descap which was included in the calculation Financial Statements and is included in the Estimated Closing Balance Sheet to a book value greater than its book value in the Audited Financial Statements. If Estimated Stockholders' Equity reflected on the Estimated Closing Balance Sheet is less than Minimum Stockholders' Equity (as defined below), the Cash Payment portion of the Closing Working Capital and Purchase Price payable to Sellers at the preparation Closing shall be reduced pro rata amongst the Sellers by an amount equal to such deficiency. If Estimated Stockholders' Equity reflected on the Estimated Closing Balance Sheet is greater than Minimum Stockholders' Equity, the Cash Payment portion of the Closing Statements.
(5) Vendor shall have thirty (30) days from receipt of Purchase Price payable to Sellers at the Closing Statements within which shall be increased pro rata amongst the Sellers by an amount equal to review the Closing Statementssuch excess. For the purposes of this review, Purchaser shall permit and shall cause the Target Entities and the Auditors to permit Vendor and Vendor’s authorized Representatives to examine all working papers, schedules, accounting Books and Records and other documents and information used or prepared by the Target Entities or the Auditors in connection with the preparation of the Closing Statements and to have reasonable access to appropriate personnel of the Target Entities for Vendor to verify the accuracy and presentation and other matters relating to the preparation of the Closing Statements. Vendor may dispute any of the items in the Closing Statements by written notice (an “Objection Notice”) to Purchaser within the same thirty (30) days. If Vendor has not delivered an Objection Notice to Purchaser within this thirty (30) day period, Vendor shall be deemed to have accepted the Closing Statements. If Vendor delivers an Objection Notice, Vendor and Purchaser shall work expeditiously and in good faith in an attempt to resolve all of the items in dispute within fifteen (15) days of receipt of the Objection Notice. If all items in dispute are not resolved within this fifteen (15) day period, the remaining items in dispute shall be referred to a nationally recognized firm of chartered accountants in Canada, selected by Purchaser and acceptable to Vendor, acting reasonably (provided that the firm shall not be the auditors of any Party nor have been paid material consulting fees by any Party within the prior twenty-four (24) months).
(6) Each Party shall furnish to the firm chosen in accordance with Section 2.4(5) (the “Independent Auditor”) those working papers, schedules and other documents, accounting books and records and information relating to the items in dispute, that are available to that Party or its auditors (and in the case of Purchaser, the Auditors) as the Independent Auditor may require. The Parties shall instruct the Independent Auditor that time is of the essence in proceeding with its determination of any dispute, and the decision of the Independent Auditor with respect to any item in dispute is to be in writing and, absent any manifest error, is final and binding on Vendor and Purchaser with no rights of challenge, review or appeal to the courts in any manner. The Independent Auditor, in making its determination of any dispute, is acting as an expert and not as an arbitrator and is not required to engage in a judicial inquiry worked out in a judicial manner.
(7) On agreement or decision, as the case may be, with respect to all items in dispute, the Closing Statements are deemed to be amended as may be necessary to reflect the agreement or the decision, as the case may be. In this event, references in this Agreement to the Closing Statements will be references to the Closing Statements, as so amended.
(8) Vendor shall be responsible for one-half of the fees and expenses of the Independent Auditor and Purchaser shall be responsible for one-half of the fees and expenses of the Independent Auditor but each Party shall be responsible for its own costs and expenses.Article I:
Appears in 1 contract
Samples: Stock Purchase Agreement (First Albany Companies Inc)
Closing Date Adjustments. (1i) At least five (5) Business Days prior to On the Closing Date, Vendor Seller and Buyer shall cause the Auditors to prepare and Vendor shall deliver to Purchaser: (a) agree upon a good faith best estimate of a detailed calculation of the consolidated Net Working Capital of the Target Entities as of the Effective Time without giving effect to the Transactions Closing (the “Preliminary Estimated Closing Working Capital”), including an estimated balance sheet based on the definition of Net Working Capital contained herein and consistent with Schedule 2.03(a) hereto. If the Target Entities as of the Effective Time without giving effect to the Transactions; (b) a calculation of the amount by which the Preliminary Estimated Closing Working Capital exceeds or is less than, as greater than the case may beNet Working Capital Target, the Target Working Capital; (c) a good faith best estimate of a detailed calculation of the consolidated Indebtedness of the Target Entities as of the Effective Time without giving effect to the Transactions (the “Preliminary Closing Indebtedness”); and (d) a good faith best estimate of a detailed calculation of the consolidated Cash and Cash Equivalents of the Target Entities as of the Effective Time without giving effect to the Transactions (the “Preliminary Cash and Cash Equivalents”);
(2) Payment shall be increased by such difference at Closing. If the Preliminary Estimated Closing Working Capital is less than the Target Net Working CapitalCapital Target, then the Purchase Price will Closing Cash Payment shall be reduced by such difference at Closing.
(ii) On the Closing by Date, Seller and Buyer shall agree upon a good faith estimate of the aggregate principal amount and accrued interest under the Factoring Agreement as of that difference, subject to any further adjustments as may be prescribed by Section 2.5the Closing (the “Estimated Factoring Debt”). If the Preliminary Estimated Factoring Debt is less than 450,000 EUR, the Closing Working Capital is greater than the Target Working Capital, then the Purchase Price will be increased at Closing by the amount of that difference, subject to any further adjustments as may be prescribed by Section 2.5.The Purchase Price will be reduced at Closing by the amount of Preliminary Closing Indebtedness. The Purchase Price Cash Payment shall be increased by such difference at Closing. If the Preliminary Estimated Factoring Debt is greater than 450,000 EUR, the Closing Cash and Cash Equivalents. A sample calculation of the determination of the preliminary Purchase Price adjustment is disclosed in the Data Room. The determinations of the preliminary Purchase Price adjustment pursuant to this Section 2.4(2) and the final Purchase Price adjustment pursuant to Section 2.5 Payment shall be made on a basis consistent with the sample calculationreduced by such difference at Closing.
(3iii) As soon as possible, but not later than ninety (90) days, following On the Closing Date, Purchaser Seller and Buyer shall prepare agree upon a good faith estimate of the aggregate principal amount and deliver to Vendor accrued interest under the following (collectively, Innovation Loan as of the “Closing Statements”):
(a) financial statements for the Target Entities on a consolidated basis for the period from the Financial Statements Date to the Effective Time and prepared in accordance with GAAP applied on a basis consistent with the audited financial statements of KML for the year ended December 31, 2017 (the “Closing Financial StatementsEstimated Innovation Debt”);
(b) a calculation of . If the consolidated Working Capital as of the Effective Time of the Target Entities as determined by reference to the balance sheet contained in the Closing Financial Statements (the “Closing Working Capital”);
(c) a calculation of the consolidated Indebtedness as of the Effective Time of the Target Entities as determined by reference to the balance sheet contained in the Closing Financial Statements (the “Closing Indebtedness”);
(d) a calculation of the consolidated Cash and Cash Equivalents as of the Effective Time of the Target Entities as determined by reference to the balance sheet contained in the Closing Financial Statements (the “Closing Cash and Cash Equivalents”);
(e) a calculation of:
(i) the amount by which the Closing Working Capital exceeds or Estimated Innovation Debt is less thangreater than 200,000 EUR, as the case may be, the Preliminary Closing Working Capital;
(ii) the amount by which the Closing Indebtedness exceeds or is less than, as the case may be, the Preliminary Closing Indebtedness;
(iii) the amount by which the Closing Cash and Cash Equivalents exceeds or is less than, as the case may be, the Preliminary Closing Cash and Cash Equivalents; andPayment shall be reduced by such difference at Closing.
(iv) On the Purchase PriceClosing Date, Seller and Buyer shall agree upon a good faith estimate of the aggregate amount of the Pension Liabilities as adjusted of the Closing (the “Estimated Pension Liabilities”). If the Estimated Pension Liabilities are greater than 436,000 EUR, the Closing Cash Payment shall be reduced by such difference. If the Estimated Pension Liabilities is less than 436,000 EUR, the Closing Cash Payment shall be increased by such difference at Closing.
(v) On the Closing Date, Seller and Buyer shall have executed a closing statement attached as Schedule 2.03(b) hereto, setting forth the Estimated Closing Working Capital, the Estimated Factoring Debt, the Estimated Innovation Debt, the Estimated Pension Liabilities, any adjustments made to the Closing Cash Payment as set forth in this Section 2.03(a), and the amount to be delivered to Seller by Buyer in accordance with Section 2.5.
(4) Vendor and Purchaser shall co-operate fully with each other in the calculation of the Closing Working Capital and the preparation of the Closing Statements.
(5) Vendor shall have thirty (30) days from receipt of the Closing Statements within which to review the Closing Statements. For the purposes of this review, Purchaser shall permit and shall cause the Target Entities and the Auditors to permit Vendor and Vendor’s authorized Representatives to examine all working papers, schedules, accounting Books and Records and other documents and information used or prepared by the Target Entities or the Auditors in connection with the preparation of the Closing Statements and to have reasonable access to appropriate personnel of the Target Entities for Vendor to verify the accuracy and presentation and other matters relating to the preparation of the Closing Statements. Vendor may dispute any of the items in the Closing Statements by written notice (an “Objection Notice”) to Purchaser within the same thirty (30) days. If Vendor has not delivered an Objection Notice to Purchaser within this thirty (30) day period, Vendor shall be deemed to have accepted the Closing Statements. If Vendor delivers an Objection Notice, Vendor and Purchaser shall work expeditiously and in good faith in an attempt to resolve all of the items in dispute within fifteen (15) days of receipt of the Objection Notice. If all items in dispute are not resolved within this fifteen (15) day period, the remaining items in dispute shall be referred to a nationally recognized firm of chartered accountants in Canada, selected by Purchaser and acceptable to Vendor, acting reasonably (provided that the firm shall not be the auditors of any Party nor have been paid material consulting fees by any Party within the prior twenty-four (24) months).
(6) Each Party shall furnish to the firm chosen in accordance with Section 2.4(5) (the “Independent Auditor”) those working papers, schedules and other documents, accounting books and records and information relating to the items in dispute, that are available to that Party or its auditors (and in the case of Purchaser, the Auditors3.02(a)(i) as the Independent Auditor may require. The Parties shall instruct the Independent Auditor that time is of the essence in proceeding with its determination of any dispute, and the decision of the Independent Auditor with respect converted from EUR to any item in dispute is to be in writing and, absent any manifest error, is final and binding on Vendor and Purchaser with no rights of challenge, review or appeal to the courts in any manner. The Independent Auditor, in making its determination of any dispute, is acting as an expert and not as an arbitrator and is not required to engage in a judicial inquiry worked out in a judicial mannerDollars.
(7) On agreement or decision, as the case may be, with respect to all items in dispute, the Closing Statements are deemed to be amended as may be necessary to reflect the agreement or the decision, as the case may be. In this event, references in this Agreement to the Closing Statements will be references to the Closing Statements, as so amended.
(8) Vendor shall be responsible for one-half of the fees and expenses of the Independent Auditor and Purchaser shall be responsible for one-half of the fees and expenses of the Independent Auditor but each Party shall be responsible for its own costs and expenses.
Appears in 1 contract
Closing Date Adjustments. (1) At least five (5) Business Days prior to the Closing Date, Vendor shall cause the Auditors to prepare and Vendor shall deliver to Purchaser: (a) a good faith best estimate of a detailed calculation of Promptly, but in any event no later than sixty (60) days after the consolidated Working Capital of Closing, the Target Entities as of the Effective Time without giving effect Purchaser shall provide to the Transactions Sellers’ Representative (the “Preliminary Closing Working Capital”), including an estimated i) a balance sheet of the Target Entities Company prepared by the Purchaser in good faith as of the Effective Time without giving effect to Closing Date (the Transactions“Closing Date Balance Sheet”); (bii) a the Purchaser’s good faith calculation of the amount by which Cash as of the Preliminary Closing Working Capital exceeds or is less than, as (the case may be, the Target Working Capital“Closing Date Cash Calculation”); (ciii) a the Purchaser’s good faith best estimate of a detailed calculation of the consolidated Company’s Indebtedness of the Target Entities as of the Effective Time without giving effect to the Transactions Closing (the “Preliminary Closing IndebtednessDate Indebtedness Calculation”); (iii) the Purchaser’s good faith calculation of Net Working Capital as reflected on the Closing Date Balance Sheet (the “Closing Date Net Working Capital Calculation”); (iv) all relevant records used in preparing the Closing Date Balance Sheet and calculating the Closing Date Cash Calculation, the Closing Date Indebtedness Calculation and the Closing Date Net Working Capital Calculation (including any related working papers); and (dv) a good faith best estimate of a detailed the Purchaser’s calculation of the consolidated Cash Purchase Price (excluding any Earnout Payments) and Cash Equivalents the adjustment to the Closing Payment Amount that needs to be made (i.e., the difference between the Purchaser’s calculation of the Target Entities as of Purchase Price (excluding any Earnout Payments) and the Effective Time without giving effect to the Transactions Closing Payment Amount (the “Preliminary Cash and Cash EquivalentsAdditional Payment Amount”);
(2) If the Preliminary Closing Working Capital is less than the Target Working Capital, then the Purchase Price will be reduced at Closing by the amount of that difference, subject to any further adjustments as may be prescribed by Section 2.5. If the Preliminary Closing Working Capital is greater than the Target Working Capital, then the Purchase Price will be increased at Closing by the amount of that difference, subject to any further adjustments as may be prescribed by Section 2.5.The Purchase Price will be reduced at Closing by the amount of Preliminary Closing Indebtedness. The Purchase Price shall be increased by the Preliminary Cash and Cash Equivalents. A sample calculation of the determination of the preliminary Purchase Price adjustment is disclosed in the Data Room. The determinations of the preliminary Purchase Price adjustment pursuant to this Section 2.4(2) and the final Purchase Price adjustment pursuant to Section 2.5 shall be made on a basis consistent with the sample calculation.
(3) As soon as possible, but not later than ninety (90) days, following the Closing Date, Purchaser shall prepare and deliver to Vendor the following (collectively, the “Closing Statements”):
(a) financial statements for the Target Entities on a consolidated basis for the period from the Financial Statements Date to the Effective Time and prepared in accordance with GAAP applied on a basis consistent with the audited financial statements of KML for the year ended December 31, 2017 (the “Closing Financial StatementsPurchaser Adjustment Report”);. If the Purchaser fails to provide the Sellers’ Representative within such sixty (60) day period the Purchaser Adjustment Report, the Estimated Cash, Estimated Indebtedness and the Estimated Net Working Capital shall be deemed to be the Final Cash, Final Indebtedness and the Final Net Working Capital.
(b) a calculation Within forty-five (45) days after receipt by the Sellers’ Representative of the consolidated Working Capital as of the Effective Time of the Target Entities as determined by reference Purchaser Adjustment Report pursuant to the balance sheet contained in the Closing Financial Statements Section 2.7(a) above (the “Closing Working CapitalReview Period”);
, the Sellers’ Representative shall deliver to the Purchaser either (ci) a calculation of written acknowledgement accepting the consolidated Indebtedness as of the Effective Time of the Target Entities as determined by reference to the balance sheet contained in the Closing Financial Statements Purchaser Adjustment Report (the “Closing IndebtednessAcceptance Notice”);
; or (dii) a calculation of the consolidated Cash and Cash Equivalents as of the Effective Time of the Target Entities as determined by reference written report setting forth in reasonably specific detail any proposed adjustments to the balance sheet contained in the Closing Financial Statements Purchaser Adjustment Report (the “Closing Cash Sellers’ Adjustment Report” and Cash Equivalentstogether with the Purchaser Adjustment Report, the “Adjustment Reports”);
. During the Review Period (e) a calculation of:
(i) and, in addition, until the amount final determination of all items in the Adjustment Reports), the Sellers’ Representative and its agents shall be provided with such access to the books and records related to the Purchaser Adjustment Report, the personnel of the Company and the Purchaser and any relevant work papers used by which the Closing Working Capital exceeds Purchaser in preparing the Purchaser Adjustment Report or is less thannecessary for the Sellers’ Representative to review the Purchaser Adjustment Report, during normal business hours, as the Sellers’ Representative and/or its agents may reasonably request to enable the Sellers’ Representative to evaluate the Purchaser Adjustment Report and prepare the Sellers’ Adjustment Report, in each case may be, the Preliminary Closing Working Capital;
(ii) the amount by which the Closing Indebtedness exceeds or is less than, subject to such confidentiality undertakings as the case Purchaser may be, the Preliminary Closing Indebtedness;
(iii) the amount by which the Closing Cash and Cash Equivalents exceeds or is less than, as the case may be, the Preliminary Closing Cash and Cash Equivalents; and
(iv) the Purchase Price, as adjusted reasonably require in accordance with Section 2.5.
(4) Vendor and Purchaser shall co-operate fully with each other in the calculation view of the Closing Working Capital and the preparation sensitivity of the Closing Statements.
(5) Vendor shall have thirty (30) days from receipt of information in question. If the Closing Statements within which to review Sellers’ Representative delivers the Closing Statements. For the purposes of this review, Purchaser shall permit and shall cause the Target Entities and the Auditors to permit Vendor and Vendor’s authorized Representatives to examine all working papers, schedules, accounting Books and Records and other documents and information used or prepared by the Target Entities or the Auditors in connection with the preparation of the Closing Statements and to have reasonable access to appropriate personnel of the Target Entities for Vendor to verify the accuracy and presentation and other matters relating Acceptance Notice to the preparation of Purchaser or fails to respond to the Closing Statements. Vendor may dispute any of the items in the Closing Statements by written notice (an “Objection Notice”) to Purchaser within the same thirty (30) days. If Vendor has not delivered an Objection Notice to Purchaser within this thirty (30) day periodReview Period, Vendor the Sellers’ Representative shall be deemed to have accepted and agreed to the Closing Statements. If Vendor delivers an Objection NoticePurchaser Adjustment Report as delivered pursuant to Section 2.7(a) the amounts provided therein shall be final and binding among the parties for the purposes of Section 2.7(e).
(c) In the event that the Sellers’ Representative and the Purchaser fail to agree on any of the Sellers’ Representative’s proposed adjustments to the Purchaser Adjustment Report within thirty (30) days after the Purchaser receives the Sellers’ Adjustment Report, Vendor then the Sellers’ Representative and Purchaser agree that an Independent Accounting Firm shall work expeditiously be jointly retained to make the final determination with respect to the correctness of the proposed adjustments of the Adjustment Reports in light of the terms and provisions of this Agreement. Each of the Purchaser, on the one hand, and the Sellers’ Representative, on the other hand, shall certify in good faith in writing to the other the absence of any conflict or material prior professional or business relationship with the selected Independent Accounting Firm, and such firm shall so certify to the Purchaser and the Sellers’ Representative that no such conflict or relationship exists. The Purchaser and the Sellers’ Representative shall use their commercially reasonable efforts to select an attempt Independent Accounting Firm within ten (10) days of the expiration of such period and to cause the Independent Accounting Firm to resolve all disagreements by providing the parties its reasoned decision as soon as practicable, but in any event within thirty (30) days after submission of the items in dispute within fifteen (15) days of receipt of to the Objection NoticeIndependent Accounting Firm. If all items in dispute are not resolved the Purchaser and the Sellers’ Representative fail to select the Independent Accounting Firm within this fifteen such ten (1510) day period, either of the remaining items Purchaser or the Sellers’ Representative may request the selection of the Independent Accounting Firm by the President of Institute of Certified Public Accountants in dispute Israel. The Independent Accounting Firm shall be referred to a nationally recognized firm of chartered accountants in Canada, selected by Purchaser and acceptable to Vendor, acting reasonably (provided that the firm shall not be the auditors of any Party nor have been paid material consulting fees by any Party within the prior twenty-four (24) months).
(6) Each Party shall furnish limit itself only to the firm chosen in accordance with Section 2.4(5) (specific items under dispute between the “Independent Auditor”) those working papers, schedules and other documents, accounting books and records and information relating to the items in dispute, that are available to that Party or its auditors (and in the case of Purchaser, the Auditors) as the Independent Auditor may require. The Parties shall instruct the Independent Auditor that time is of the essence in proceeding with its determination of any disputeparties, and the decision of the Independent Auditor with respect to any item Accounting Firm shall, in dispute is to be in writing and, absent any the absence of fraud or manifest error, is final be final, binding and binding non-appealable on Vendor the Sellers’ Representative and Purchaser with no rights of challenge, review or appeal the Purchaser. Each party (and its respective representatives and advisors) shall be entitled to make a presentation to the courts Independent Accounting Firm (which may include submission of back-up materials and work papers) in any manner. The Independent Auditor, support of its position in making its determination of any the dispute, is acting as an expert and not as an arbitrator and is not required to engage in a judicial inquiry worked out in a judicial manner.
(7d) On agreement or decisionEach of the Sellers and the Purchaser shall (i) pay its own respective costs and expenses incurred in connection with this Section 2.6(c), as the case may be, with respect to all items in dispute, the Closing Statements are deemed to be amended as may be necessary to reflect the agreement or the decision, as the case may be. In this event, references in this Agreement to the Closing Statements will be references to the Closing Statements, as so amended.
and (8) Vendor shall ii) be responsible for onethe fees and expenses of the Independent Accounting Firm on a pro rata basis based upon the inverse of the degree to which the Independent Accounting Firm has accepted the respective positions of the Sellers’ Representative (and among the Sellers, based on the Relevant Portion of each Seller) and the Purchaser (which shall be determined by the Independent Accounting Firm and set forth in the Independent Accounting Firm’s Adjustment Report). For purposes of clarity, if the Independent Accounting Firm determines that it accepted sixty-half five percent (65%) of the respective position of the Sellers’ Representative, the Sellers shall pay thirty-five percent (35%) of the fees and expenses of the Independent Auditor Accounting Firm and the Purchaser shall be responsible for onepay the remaining sixty-half five percent (65%) of the such fees and expenses of the Independent Auditor but each Party shall be responsible for its own costs and expenses.
(e) The Adjustment Report as agreed to by the parties or as determined by the Independent Accounting Firm is referred herein as the “Final Adjustment Report” and the terms “Final Cash”, “Final Indebtedness” and “Final Net Working Capital” as those terms have been hereinbefore and will be hereinafter used, shall mean the Cash, Indebtedness and Net Working Capital calculated as of the Closing Date as adjusted, if at all, in the Final Adjustment Report pursuant to this Section 2.6(c). The date on which the Final Cash, Final Indebtedness and Final Net Working Capital are determined pursuant to this Section 2.6(c) shall hereinafter be referred to as the “Settlement Date”.
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Closing Date Adjustments. At the Closing, the Purchase Price shall be adjusted as set forth in this Section 3.1.
(a) If the Closing occurs after December 31, 2005, then the Cash Purchase Price payable by the Buyer on the Closing Date shall be increased by an amount equal to the interest on $370 million from January 1, 2006 to (but not including) At least five the Closing Date at a rate of 6.0% per annum.
(5b) Prior to the Closing (but no less than two Business Days prior to the Closing Date), Vendor shall cause the Auditors to prepare and Vendor Seller shall deliver to Purchaser: the Buyer (ai) a good faith best estimate of a detailed calculation of the consolidated Working Capital of the Target Entities as of the Effective Time without giving effect to the Transactions (the “Preliminary Closing Working Capital”), including an estimated balance sheet of the Target Entities Company and the Retained Subsidiaries as of December 31, 2005 or (ii) if the balance sheet described in clause (i) is not available, the then most recent regularly prepared month end consolidated balance sheet of the Company and the Retained Subsidiaries (which shall be as of a date not more than 50 days prior to the Closing Date). The balance sheet delivered pursuant to the foregoing sentence is referred to as the "Month End Balance Sheet" and the date of such Month End Balance Sheet is referred to as the "Month End." The Month End Balance Sheet shall be accompanied by a schedule setting forth an estimate of the Adjusted Net Working Capital as of the Effective Time without giving effect to close of business on the Transactions; Month End (b) a calculation of the amount by which the Preliminary Closing Working Capital exceeds or is less than, as the case may be, the Target "Estimated Adjusted Net Working Capital; (c) a good faith best estimate of a detailed calculation of the consolidated Indebtedness of the Target Entities as of the Effective Time without giving effect to the Transactions (the “Preliminary Closing Indebtedness”"); and (d) a good faith best estimate of a detailed calculation of the consolidated Cash and Cash Equivalents of the Target Entities as of the Effective Time without giving effect to the Transactions (the “Preliminary Cash and Cash Equivalents”);
(2) If the Preliminary Closing Working Capital is less than the Target Working Capital, then the Purchase Price will be reduced at Closing by the amount of that difference, subject to any further adjustments as may be prescribed by Section 2.5. If the Preliminary Closing Working Capital is greater than the Target Working Capital, then the Purchase Price will be increased at Closing by the amount of that difference, subject to any further adjustments as may be prescribed by Section 2.5.The Purchase Price will be reduced at Closing by the amount of Preliminary Closing Indebtedness. The Purchase Price Month End Balance Sheet shall be increased by the Preliminary Cash and Cash Equivalents. A sample calculation of the determination of the preliminary Purchase Price adjustment is disclosed in the Data Room. The determinations of the preliminary Purchase Price adjustment pursuant to this Section 2.4(2) and the final Purchase Price adjustment pursuant to Section 2.5 shall be made on a basis consistent with the sample calculation.
(3) As soon as possible, but not later than ninety (90) days, following the Closing Date, Purchaser shall prepare and deliver to Vendor the following (collectively, the “Closing Statements”):
(a) financial statements for the Target Entities on a consolidated basis for the period from the Financial Statements Date to the Effective Time and prepared in accordance with GAAP (except for the exclusion of the Transferred Subsidiaries), applied on a basis consistent with the audited financial statements of KML (except for the year ended December exclusion of the Transferred Subsidiaries), and following the accounting principles, procedures, policies and methods employed in preparing, the unaudited consolidated balance sheet of the Company and its Subsidiaries as of August 31, 2017 2005 (the “Closing Financial Statements”"August 31 Balance Sheet");
(b) a calculation of . If the consolidated Estimated Adjusted Net Working Capital as of set forth on the Effective Time of schedule accompanying the Target Entities as determined by reference Month End Balance Sheet is less than $26 million, the Cash Purchase Price payable to the balance sheet contained in Seller at the Closing Financial Statements (shall be reduced by an amount equal to such deficiency. If the “Closing Estimated Adjusted Net Working Capital”);
(c) a calculation of Capital set forth on the consolidated Indebtedness as of schedule accompanying the Effective Time of Month End Balance Sheet exceeds $26 million, the Target Entities as determined by reference Cash Purchase Price payable to the balance sheet contained in Seller at the Closing Financial Statements (the “Closing Indebtedness”);
(d) a calculation of the consolidated Cash and Cash Equivalents as of the Effective Time of the Target Entities as determined by reference to the balance sheet contained in the Closing Financial Statements (the “Closing Cash and Cash Equivalents”);
(e) a calculation of:
(i) the amount by which the Closing Working Capital exceeds or is less than, as the case may be, the Preliminary Closing Working Capital;
(ii) the amount by which the Closing Indebtedness exceeds or is less than, as the case may be, the Preliminary Closing Indebtedness;
(iii) the amount by which the Closing Cash and Cash Equivalents exceeds or is less than, as the case may be, the Preliminary Closing Cash and Cash Equivalents; and
(iv) the Purchase Price, as adjusted in accordance with Section 2.5.
(4) Vendor and Purchaser shall co-operate fully with each other in the calculation of the Closing Working Capital and the preparation of the Closing Statements.
(5) Vendor shall have thirty (30) days from receipt of the Closing Statements within which to review the Closing Statements. For the purposes of this review, Purchaser shall permit and shall cause the Target Entities and the Auditors to permit Vendor and Vendor’s authorized Representatives to examine all working papers, schedules, accounting Books and Records and other documents and information used or prepared by the Target Entities or the Auditors in connection with the preparation of the Closing Statements and to have reasonable access to appropriate personnel of the Target Entities for Vendor to verify the accuracy and presentation and other matters relating to the preparation of the Closing Statements. Vendor may dispute any of the items in the Closing Statements by written notice (an “Objection Notice”) to Purchaser within the same thirty (30) days. If Vendor has not delivered an Objection Notice to Purchaser within this thirty (30) day period, Vendor shall be deemed increased by an amount equal to have accepted the Closing Statements. If Vendor delivers an Objection Notice, Vendor and Purchaser shall work expeditiously and in good faith in an attempt to resolve all of the items in dispute within fifteen (15) days of receipt of the Objection Notice. If all items in dispute are not resolved within this fifteen (15) day period, the remaining items in dispute shall be referred to a nationally recognized firm of chartered accountants in Canada, selected by Purchaser and acceptable to Vendor, acting reasonably (provided that the firm shall not be the auditors of any Party nor have been paid material consulting fees by any Party within the prior twenty-four (24) months)such surplus.
(6) Each Party shall furnish to the firm chosen in accordance with Section 2.4(5) (the “Independent Auditor”) those working papers, schedules and other documents, accounting books and records and information relating to the items in dispute, that are available to that Party or its auditors (and in the case of Purchaser, the Auditors) as the Independent Auditor may require. The Parties shall instruct the Independent Auditor that time is of the essence in proceeding with its determination of any dispute, and the decision of the Independent Auditor with respect to any item in dispute is to be in writing and, absent any manifest error, is final and binding on Vendor and Purchaser with no rights of challenge, review or appeal to the courts in any manner. The Independent Auditor, in making its determination of any dispute, is acting as an expert and not as an arbitrator and is not required to engage in a judicial inquiry worked out in a judicial manner.
(7) On agreement or decision, as the case may be, with respect to all items in dispute, the Closing Statements are deemed to be amended as may be necessary to reflect the agreement or the decision, as the case may be. In this event, references in this Agreement to the Closing Statements will be references to the Closing Statements, as so amended.
(8) Vendor shall be responsible for one-half of the fees and expenses of the Independent Auditor and Purchaser shall be responsible for one-half of the fees and expenses of the Independent Auditor but each Party shall be responsible for its own costs and expenses.
Appears in 1 contract
Closing Date Adjustments. At the Closing, the Purchase Price shall be adjusted as set forth in this Section 3.1.
(a) If the Closing occurs after December 31, 2005, then the Cash Purchase Price payable by the Buyer on the Closing Date shall be increased by an amount equal to the interest on $370 million from January 1, 2006 to (but not including) At least five the Closing Date at a rate of 6.0% per annum.
(5b) Prior to the Closing (but no less than two Business Days prior to the Closing Date), Vendor shall cause the Auditors to prepare and Vendor Seller shall deliver to Purchaser: the Buyer (ai) the consolidated balance sheet of the Company and the Retained Subsidiaries as of December 31, 2005 or (ii) if the balance sheet described in clause (i) is not available, the then most recent regularly prepared month end consolidated balance sheet of the Company and the Retained Subsidiaries (which shall be as of a good faith best date not more than 50 days prior to the Closing Date). The balance sheet delivered pursuant to the foregoing sentence is referred to as the “Month End Balance Sheet” and the date of such Month End Balance Sheet is referred to as the “Month End.” The Month End Balance Sheet shall be accompanied by a schedule setting forth an estimate of a detailed calculation of the consolidated Adjusted Net Working Capital of the Target Entities as of the Effective Time without giving effect to close of business on the Transactions Month End (the “Preliminary Closing Estimated Adjusted Net Working Capital”), including an estimated balance sheet of the Target Entities as of the Effective Time without giving effect to the Transactions; (b) a calculation of the amount by which the Preliminary Closing Working Capital exceeds or is less than, as the case may be, the Target Working Capital; (c) a good faith best estimate of a detailed calculation of the consolidated Indebtedness of the Target Entities as of the Effective Time without giving effect to the Transactions (the “Preliminary Closing Indebtedness”); and (d) a good faith best estimate of a detailed calculation of the consolidated Cash and Cash Equivalents of the Target Entities as of the Effective Time without giving effect to the Transactions (the “Preliminary Cash and Cash Equivalents”);
(2) If the Preliminary Closing Working Capital is less than the Target Working Capital, then the Purchase Price will be reduced at Closing by the amount of that difference, subject to any further adjustments as may be prescribed by Section 2.5. If the Preliminary Closing Working Capital is greater than the Target Working Capital, then the Purchase Price will be increased at Closing by the amount of that difference, subject to any further adjustments as may be prescribed by Section 2.5.The Purchase Price will be reduced at Closing by the amount of Preliminary Closing Indebtedness. The Purchase Price Month End Balance Sheet shall be increased by the Preliminary Cash and Cash Equivalents. A sample calculation of the determination of the preliminary Purchase Price adjustment is disclosed in the Data Room. The determinations of the preliminary Purchase Price adjustment pursuant to this Section 2.4(2) and the final Purchase Price adjustment pursuant to Section 2.5 shall be made on a basis consistent with the sample calculation.
(3) As soon as possible, but not later than ninety (90) days, following the Closing Date, Purchaser shall prepare and deliver to Vendor the following (collectively, the “Closing Statements”):
(a) financial statements for the Target Entities on a consolidated basis for the period from the Financial Statements Date to the Effective Time and prepared in accordance with GAAP (except for the exclusion of the Transferred Subsidiaries), applied on a basis consistent with the audited financial statements of KML (except for the year ended December exclusion of the Transferred Subsidiaries), and following the accounting principles, procedures, policies and methods employed in preparing, the unaudited consolidated balance sheet of the Company and its Subsidiaries as of August 31, 2017 2005 (the “Closing Financial StatementsAugust 31 Balance Sheet”);
(b) a calculation of . If the consolidated Estimated Adjusted Net Working Capital as of set forth on the Effective Time of schedule accompanying the Target Entities as determined by reference Month End Balance Sheet is less than $26 million, the Cash Purchase Price payable to the balance sheet contained in Seller at the Closing Financial Statements (shall be reduced by an amount equal to such deficiency. If the “Closing Estimated Adjusted Net Working Capital”);
(c) a calculation of Capital set forth on the consolidated Indebtedness as of schedule accompanying the Effective Time of Month End Balance Sheet exceeds $26 million, the Target Entities as determined by reference Cash Purchase Price payable to the balance sheet contained in Seller at the Closing Financial Statements (the “Closing Indebtedness”);
(d) a calculation of the consolidated Cash and Cash Equivalents as of the Effective Time of the Target Entities as determined by reference to the balance sheet contained in the Closing Financial Statements (the “Closing Cash and Cash Equivalents”);
(e) a calculation of:
(i) the amount by which the Closing Working Capital exceeds or is less than, as the case may be, the Preliminary Closing Working Capital;
(ii) the amount by which the Closing Indebtedness exceeds or is less than, as the case may be, the Preliminary Closing Indebtedness;
(iii) the amount by which the Closing Cash and Cash Equivalents exceeds or is less than, as the case may be, the Preliminary Closing Cash and Cash Equivalents; and
(iv) the Purchase Price, as adjusted in accordance with Section 2.5.
(4) Vendor and Purchaser shall co-operate fully with each other in the calculation of the Closing Working Capital and the preparation of the Closing Statements.
(5) Vendor shall have thirty (30) days from receipt of the Closing Statements within which to review the Closing Statements. For the purposes of this review, Purchaser shall permit and shall cause the Target Entities and the Auditors to permit Vendor and Vendor’s authorized Representatives to examine all working papers, schedules, accounting Books and Records and other documents and information used or prepared by the Target Entities or the Auditors in connection with the preparation of the Closing Statements and to have reasonable access to appropriate personnel of the Target Entities for Vendor to verify the accuracy and presentation and other matters relating to the preparation of the Closing Statements. Vendor may dispute any of the items in the Closing Statements by written notice (an “Objection Notice”) to Purchaser within the same thirty (30) days. If Vendor has not delivered an Objection Notice to Purchaser within this thirty (30) day period, Vendor shall be deemed increased by an amount equal to have accepted the Closing Statements. If Vendor delivers an Objection Notice, Vendor and Purchaser shall work expeditiously and in good faith in an attempt to resolve all of the items in dispute within fifteen (15) days of receipt of the Objection Notice. If all items in dispute are not resolved within this fifteen (15) day period, the remaining items in dispute shall be referred to a nationally recognized firm of chartered accountants in Canada, selected by Purchaser and acceptable to Vendor, acting reasonably (provided that the firm shall not be the auditors of any Party nor have been paid material consulting fees by any Party within the prior twenty-four (24) months)such surplus.
(6) Each Party shall furnish to the firm chosen in accordance with Section 2.4(5) (the “Independent Auditor”) those working papers, schedules and other documents, accounting books and records and information relating to the items in dispute, that are available to that Party or its auditors (and in the case of Purchaser, the Auditors) as the Independent Auditor may require. The Parties shall instruct the Independent Auditor that time is of the essence in proceeding with its determination of any dispute, and the decision of the Independent Auditor with respect to any item in dispute is to be in writing and, absent any manifest error, is final and binding on Vendor and Purchaser with no rights of challenge, review or appeal to the courts in any manner. The Independent Auditor, in making its determination of any dispute, is acting as an expert and not as an arbitrator and is not required to engage in a judicial inquiry worked out in a judicial manner.
(7) On agreement or decision, as the case may be, with respect to all items in dispute, the Closing Statements are deemed to be amended as may be necessary to reflect the agreement or the decision, as the case may be. In this event, references in this Agreement to the Closing Statements will be references to the Closing Statements, as so amended.
(8) Vendor shall be responsible for one-half of the fees and expenses of the Independent Auditor and Purchaser shall be responsible for one-half of the fees and expenses of the Independent Auditor but each Party shall be responsible for its own costs and expenses.
Appears in 1 contract
