Closing Purchase Price Adjustment. (a) Unless the parties shall have previously mutually agreed in writing that any portions of the estimated Closing Amounts are to be considered the Final Closing Amounts (as defined below) for purposes hereof (which agreement shall be irrevocable), or with respect to the Final Closing Amount for Used Vehicles which will be irrevocably finalized by the parties no later than five (5) days after the Closing, then, as promptly as practicable, and in any event within forty- five (45) days after the Closing Date (except the Final Closing Amounts for Used Vehicles), the Purchaser shall prepare and deliver to the Seller Parties a statement (the “Revised Closing Statement”) setting forth the Purchaser’s good faith calculation of the Closing Amounts (including all of the components thereof set forth in the definition thereof), together with such schedules and data with respect to the determination thereof as are appropriate to support the calculations set forth in the Revised Closing Statement. The Revised Closing Statement shall be prepared in accordance with the terms of this Agreement and the Purchase Price Calculation/Accounting Principles. The parties agree that the purpose of preparing the Revised Closing Statement and determining the Final Closing Amounts (and all components thereof) and the related adjustments contemplated by this Section 2.07 is to measure the amount of the Final Closing Amounts (and all components thereof) in accordance with the terms of this Agreement and the Purchase Price Calculation/Accounting Principles, and such process is not intended to permit the introduction of different accounting methods, policies, principles, practices, procedures, judgments, classifications or estimation methodologies for the purpose of determining the Final Closing Amounts (and all components thereof) other than those set forth in the Purchase Price Calculation/Accounting Principles. Following the delivery of the Revised Closing Statement, the Purchaser shall provide the Seller Parties and their Representatives with reasonable access to the Transferred Records, work papers and other documents that were used in the preparation of, or otherwise relate to, the Revised Closing Statement, internal and external accountants, relevant personnel and properties of the Purchaser and its Subsidiaries, to permit the Seller Parties and their Representatives to review the Revised Closing Statement and the Purchaser’s calculation of the Closing Amount (and all components thereof) as set forth therein. The Revised Closing Statement shall become final and binding upon the parties on the thirtieth (30th) day following receipt thereof by the Seller Parties, unless the Seller Parties give written notice of their disagreement with the Revised Closing Statement (a “Notice of Disagreement”) to the Purchaser prior to such date. Any Notice of Disagreement shall specify in reasonable detail the nature of any disagreement so asserted and include the Seller Parties’ calculation of the Closing Amounts. If a timely Notice of Disagreement is received by the Purchaser, then the Revised Closing Statement (as revised in accordance with this sentence) shall become final and binding upon the parties on the earlier of (i) the date on which the Purchaser and the Seller Parties resolve in writing any differences they have with respect to the matters specified in the Notice of Disagreement and (ii) the date on which all such disputed matters are finally resolved in writing by the Independent Expert pursuant to the procedures set forth in this Section 2.07. During the thirty (30) day period following the delivery of a Notice of Disagreement, the Purchaser and the Seller Parties shall work in good faith to resolve in writing any differences that they may have with respect to the matters specified in the Notice of Disagreement. At the end of such thirty (30) day period, the Purchaser and the Seller Parties shall submit to the Independent Expert for review any and all matters that remain in dispute and were included in the Notice of Disagreement. The parties shall instruct the Independent Expert to render its decision as to such disputed items and the effect of its decision on the Revised Closing Statement as promptly as practicable but in no event later than sixty (60) days after the date of such submission. Each party shall furnish to the Independent Expert such working papers and other relevant documents and information relating to the disputed items, and shall provide interviews, answer questions and otherwise cooperate with the Independent Expert as the Independent Expert may reasonably request in connection with its determination of such disputed items. In the event either party shall participate in teleconferences or meetings with, or make presentations to, the Independent Expert, the other party shall be entitled to reasonable advance notice of, and to participate in, such teleconferences, meetings or presentations. The terms of appointment and engagement of the Independent Expert shall be as agreed upon between the parties in writing.
Appears in 1 contract
Closing Purchase Price Adjustment. (a) Unless the parties shall have previously mutually agreed in writing that any portions of the estimated Closing Amounts are to be considered the Final Closing Amounts (as defined below) for purposes hereof (which agreement shall be irrevocable), or with respect to the Final Closing Amount for Used Vehicles which will be irrevocably finalized by the parties no later than five (5) days after the Closing, then, as promptly as practicable, and in any event within forty- forty-five (45) days after the Closing Date (except the Final Closing Amounts for Used Vehicles), the Purchaser shall prepare and deliver to the Seller Parties a statement (the “Revised Closing Statement”) setting forth the Purchaser’s good faith calculation of the Closing Amounts (including all of the components thereof set forth in the definition thereof), together with such schedules and data with respect to the determination thereof as are appropriate to support the calculations set forth in the Revised Closing Statement. The Revised Closing Statement shall be prepared in accordance with the terms of this Agreement and the Purchase Price Calculation/Accounting Principles. The parties agree that the purpose of preparing the Revised Closing Statement and determining the Final Closing Amounts (and all components thereof) and the related adjustments contemplated by this Section 2.07 is to measure the amount of the Final Closing Amounts (and all components thereof) in accordance with the terms of this Agreement and the Purchase Price Calculation/Accounting Principles, and such process is not intended to permit the introduction of different accounting methods, policies, principles, practices, procedures, judgments, classifications or estimation methodologies for the purpose of determining the Final Closing Amounts (and all components thereof) other than those set forth in the Purchase Price Calculation/Accounting Principles. Following the delivery of the Revised Closing Statement, the Purchaser shall provide the Seller Parties and their Representatives with reasonable access to the Transferred Records, work papers and other documents that were used in the preparation of, or otherwise relate to, the Revised Closing Statement, internal and external accountants, relevant personnel and properties of the Purchaser and its Subsidiaries, to permit the Seller Parties and their Representatives to review the Revised Closing Statement and the Purchaser’s calculation of the Closing Amount (and all components thereof) as set forth therein. The Revised Closing Statement shall become final and binding upon the parties on the thirtieth (30th) day following receipt thereof by the Seller Parties, unless the Seller Parties give written notice of their disagreement with the Revised Closing Statement (a “Notice of Disagreement”) to the Purchaser prior to such date. Any Notice of Disagreement shall specify in reasonable detail the nature of any disagreement so asserted and include the Seller Parties’ calculation of the Closing Amounts. If a timely Notice of Disagreement is received by the Purchaser, then the Revised Closing Statement (as revised in accordance with this sentence) shall become final and binding upon the parties on the earlier of (i) the date on which the Purchaser and the Seller Parties resolve in writing any differences they have with respect to the matters specified in the Notice of Disagreement and (ii) the date on which all such disputed matters are finally resolved in writing by the Independent Expert pursuant to the procedures set forth in this Section 2.07. During the thirty (30) day period following the delivery of a Notice of Disagreement, the Purchaser and the Seller Parties shall work in good faith to resolve in writing any differences that they may have with respect to the matters specified in the Notice of Disagreement. At the end of such thirty (30) day period, the Purchaser and the Seller Parties shall submit to the Independent Expert for review any and all matters that remain in dispute and were included in the Notice of Disagreement. The parties shall instruct the Independent Expert to render its decision as to such disputed items and the effect of its decision on the Revised Closing Statement as promptly as practicable but in no event later than sixty (60) days after the date of such submission. Each party shall furnish to the Independent Expert such working papers and other relevant documents and information relating to the disputed items, and shall provide interviews, answer questions and otherwise cooperate with the Independent Expert as the Independent Expert may reasonably request in connection with its determination of such disputed items. In the event either party shall participate in teleconferences or meetings with, or make presentations to, the Independent Expert, the other party shall be entitled to reasonable advance notice of, and to participate in, such teleconferences, meetings or presentations. The terms of appointment and engagement of the Independent Expert shall be as agreed upon between the parties in writing.
Appears in 1 contract
Closing Purchase Price Adjustment. (a) Unless the parties shall have previously mutually agreed in writing that any portions of the estimated Closing Amounts are to be considered the Final Closing Amounts (as defined below) for purposes hereof (which agreement shall be irrevocable), or with respect to the Final Closing Amount for Used Vehicles which will be irrevocably finalized by the parties no later than five (5) days after the Closing, then, as promptly As soon as practicable, and but in any event within forty- five (45) 180 days after the Closing Date (except Date, Deloitte & Touche, at the Final Closing Amounts for Used Vehicles)direction of the Buyer, the Purchaser shall prepare and deliver to the Seller Parties a statement of the Net Worth of Diamond as of December 31, 1996 (the “Revised Closing "Net Worth Statement”) setting forth "). In calculating the Purchaser’s good faith calculation Net Worth Statement, the Seller may dispute any amounts reflected on the Net Worth Statement to the extent the net effect of the Closing Amounts (including all of the components thereof set forth such disputed amounts in the definition thereof)aggregate would affect the Net Worth of Diamond by more than $25,000, together with but only on the basis that such schedules and data with respect to the determination thereof as are appropriate to support the calculations set forth in the Revised Closing Statement. The Revised Closing Statement shall be prepared amounts were not arrived at in accordance with the terms of this Agreement and the Purchase Price Calculation/Accounting PrinciplesGAAP applied on a consistent basis. The parties agree that Seller shall notify the purpose Buyer in writing of preparing the Revised Closing Statement each disputed item, and determining the Final Closing Amounts (and all components thereof) and the related adjustments contemplated by this Section 2.07 is to measure specify the amount thereof in dispute, within 30 days of the Final Closing Amounts (and all components thereof) in accordance with the terms of this Agreement and the Purchase Price Calculation/Accounting Principles, and such process is not intended to permit the introduction of different accounting methods, policies, principles, practices, procedures, judgments, classifications or estimation methodologies for the purpose of determining the Final Closing Amounts (and all components thereof) other than those set forth in the Purchase Price Calculation/Accounting Principles. Following the delivery of the Revised Closing Statement, the Purchaser shall provide the Seller Parties and their Representatives with reasonable access to the Transferred Records, work papers and other documents that were used in the preparation of, or otherwise relate to, the Revised Closing Statement, internal and external accountants, relevant personnel and properties of the Purchaser and its Subsidiaries, to permit the Seller Parties and their Representatives to review the Revised Closing Statement and the Purchaser’s calculation of the Closing Amount (and all components thereof) as set forth therein. The Revised Closing Statement shall become final and binding upon the parties on the thirtieth (30th) day following receipt thereof by the Seller Parties, unless the Seller Parties give written notice of their disagreement with the Revised Closing Statement (a “Notice of Disagreement”) to the Purchaser prior to such date. Any Notice of Disagreement shall specify in reasonable detail the nature of any disagreement so asserted and include the Seller Parties’ calculation of the Closing Amounts. If a timely Notice of Disagreement is received by the Purchaser, then the Revised Closing Statement (as revised in accordance with this sentence) shall become final and binding upon the parties on the earlier of (i) the date on which the Purchaser Buyer gives the Seller notice of the Net Worth Statement. If the Seller timely notifies the Buyer of any such dispute, and the Seller Parties and the Buyer cannot resolve in writing any differences they have with respect to such dispute within 15 days of the matters specified Seller's delivery of such notice, such dispute shall be resolved by a "Big Six" certified independent accounting firm, other than any such firm engaged by the Seller or the Buyer, selected by both the Seller and the Buyer. If the Seller and the Buyer cannot agree on the choice of such accounting firm, the Seller shall choose the firm in the Notice of Disagreement and (ii) manner specified above for choosing the date on which all such disputed matters are finally resolved in writing by the Independent Expert pursuant to the procedures set forth in this Section 2.07Third Firm. During the thirty (30) day period following the delivery of a Notice of Disagreement, the Purchaser The Seller and the Seller Parties Buyer shall work in good faith request such accounting firm to resolve in writing any differences that they may have with respect to determine the matters specified in the Notice of Disagreement. At the end of such thirty (30) day period, the Purchaser and the Seller Parties shall submit to the Independent Expert for review any and all matters that remain in dispute and were included in the Notice of Disagreement. The parties shall instruct the Independent Expert to render its decision as to such disputed items and the effect of its decision on the Revised Closing Statement Diamond Net Worth as promptly as practicable but (and in no any event later than sixty (60) within 30 days after the date of receipt of notice of such submissiondispute by the Seller and the Buyer, which notice shall be promptly given by the parties), and determination shall be final on the parties. Each party The Seller and the Buyer shall furnish to the Independent Expert such working papers and other relevant documents and information pay any expenses relating to the engagement of such accounting firm, allocated between the Buyer and the Seller so that the Seller's share of such costs shall be in the same proportion that the aggregate amount of the disputed items, and shall provide interviews, answer questions and otherwise cooperate with amounts submitted to such accounting firm that are unsuccessfully disputed by the Independent Expert Seller (as finally determined by such accounting firm) bears to the Independent Expert may reasonably request in connection with its determination total amount of such disputed itemsamounts so submitted to such accounting firm. In To the event either party shall participate in teleconferences or meetings with, or make presentations toextent that the Net Worth Statement reflects a Diamond Net Worth less than $3,225,000 (without taking into account the stockholder loan being released on the Closing Date) (the "Net Worth Target"), the Independent ExpertPurchase Price shall be reduced by the amount of such deficiency, and the Escrow Agent shall pay to the Buyer a portion of the Escrow Funds that is equal to such deficiency as provided in the Escrow Agreement. If the amount of the liability accrued on the Net Worth Statement for Diamond's obligation to Dahlxxxx Xxxernational, Inc. exceeds the amount spent by Diamond to resolve such liability, the other party Buyer shall pay any such excess to the Seller; provided, however, that such obligation to repay such excess amount to the Seller shall exist only to the extent that the Escrow Agent shall have paid the Buyer funds as a result of the Diamond Net Worth being less than the Net Worth Target. If as part of the calculation of the Diamond Net Worth the value of the Diamond Assets are reduced to account for a reserve for certain dampener systems, Diamond shall pay to the Escrow Agent to hold as part of the Escrow Funds any net revenues received by Diamond after the Closing from the sale of such systems (net of related selling expenses), but Diamond shall not be required hereunder to pay to the Escrow Agent more than the amount of any funds received by the Buyer from the Escrow Agent for a claim under this Section 2.3. The Buyer's right to recover from the Escrow Agreement under this Section 2.3 is independent of any right that the Buyer may have to recover for a breach of any of the Seller's representations and warranties in Section 4; provided, however, that in order to avoid double counting the Buyer's rights to recover for a breach of any such representations and warranties shall be entitled reduced to reasonable advance notice of, and to participate in, such teleconferences, meetings or presentations. The terms of appointment and engagement of the Independent Expert shall be as agreed upon between extent that the parties in writingBuyer recovers for that same breach through a payment from the Escrow Funds under this Section 2.3.
Appears in 1 contract
Samples: Stock Purchase Agreement (Pamarco Technologies Inc)
Closing Purchase Price Adjustment. If (aA) Unless the parties Net Working Capital (as finally determined pursuant to this Section 2.05 and as set forth in the Final Closing Balance Sheet and the Final Closing Statement) differs from the Estimated Net Working Capital Adjustment by more than CAD$50,000 or (B) the Closing Debt Amount, the Seller Transaction Expenses, or the Cash Adjustment Amount (as finally determined pursuant to Section 2.05 and as set forth in the Final Closing Statement) is different than the estimated amounts set forth in the Estimated Closing Statement, then the Closing Purchase Price shall have previously mutually agreed be recalculated using such final figures in writing that any portions lieu of the estimated figures thereafter set forth in the Estimated Closing Amounts are Statement, and the amount, if any, by which such estimated Closing Purchase Price paid at Closing in accordance with Section 2.02 (i) exceeds such recalculated final Closing Purchase Price shall be released to Buyer from the Adjustment Escrow Account in accordance with the provisions of the Escrow Agreement or (ii) is less than such recalculated final Closing Purchase Price shall be paid (or caused to be considered paid) by Buyer to the Final Closing Amounts Sellers’ Representative by wire transfer in immediately available funds. To the extent the amount of any payment required pursuant to clause (as defined belowi) for purposes hereof (which agreement shall be irrevocableof the preceding sentence exceeds the Adjustment Escrow Amount pursuant to this Section 2.05(e), each Seller will pay (or with respect caused to be paid) to the Final Acquired Companies an amount equal to such Seller’s Pro Rata Percentage of such excess amount by wire transfer in immediately available funds. To the extent that such recalculated final Closing Amount for Used Vehicles which will be irrevocably finalized by the parties no later than five (5) days after the Closing, then, as promptly as practicable, and in any event within forty- five (45) days after the Closing Date (except the Final Closing Amounts for Used Vehicles), the Purchaser shall prepare and deliver to the Seller Parties a statement (the “Revised Closing Statement”) setting forth the Purchaser’s good faith calculation Purchase Price results from an excess of the Closing Amounts (including all of Debt Amount as compared with the components estimate thereof set forth in the definition thereofEstimated Closing Statement, Buyer shall pay to each Person entitled to receive a portion of such excess as represented by the Sellers' Representative, in a written certificate delivered by the Seller’s Representative to Buyer (which certificate shall specify the amount payable to, and the payment instructions for, each such Person), together with the amount payable to such schedules Person; provided, that such payments in respect of such excess shall in the aggregate not exceed the additional amount deducted from the final recalculated Closing Purchase Price resulting from the recalculated Closing Debt Amount. Any portion of the Accounting Firm’s fees and data with respect any expenses payable hereunder by the Sellers shall also be released from the Adjustment Escrow Account to the determination thereof as extent then available or, if such funds are appropriate to support the calculations set forth in the Revised Closing Statement. The Revised Closing Statement shall be prepared exhausted, directly from each Seller in accordance with the terms of this Agreement and the Purchase Price Calculation/Accounting Principlestheir Pro Rata Percentages. The parties agree that the purpose of preparing the Revised Closing Statement and determining the Final Closing Amounts (and all components thereof) and the related adjustments contemplated by Any payments pursuant to this Section 2.07 is to measure the amount of the Final Closing Amounts (and 2.05(e) shall be treated by all components thereof) in accordance with the terms of this Agreement and the Purchase Price Calculation/Accounting Principles, and such process is not intended to permit the introduction of different accounting methods, policies, principles, practices, procedures, judgments, classifications or estimation methodologies parties for the purpose of determining the Final Closing Amounts (and all components thereof) other than those set forth in the Purchase Price Calculation/Accounting Principles. Following the delivery of the Revised Closing Statement, the Purchaser shall provide the Seller Parties and their Representatives with reasonable access tax purposes as adjustments to the Transferred Records, work papers and other documents that were used in the preparation of, or otherwise relate to, the Revised Closing Statement, internal and external accountants, relevant personnel and properties of the Purchaser and its Subsidiaries, to permit the Seller Parties and their Representatives to review the Revised Closing Statement and the Purchaser’s calculation of the Closing Amount (and all components thereof) as set forth therein. The Revised Closing Statement shall become final and binding upon the parties on the thirtieth (30th) day following receipt thereof by the Seller Parties, unless the Seller Parties give written notice of their disagreement with the Revised Closing Statement (a “Notice of Disagreement”) to the Purchaser prior to such date. Any Notice of Disagreement shall specify in reasonable detail the nature of any disagreement so asserted and include the Seller Parties’ calculation of the Closing Amounts. If a timely Notice of Disagreement is received by the Purchaser, then the Revised Closing Statement (as revised in accordance with this sentence) shall become final and binding upon the parties on the earlier of (i) the date on which the Purchaser and the Seller Parties resolve in writing any differences they have with respect to the matters specified in the Notice of Disagreement and (ii) the date on which all such disputed matters are finally resolved in writing by the Independent Expert pursuant to the procedures set forth in this Section 2.07. During the thirty (30) day period following the delivery of a Notice of Disagreement, the Purchaser and the Seller Parties shall work in good faith to resolve in writing any differences that they may have with respect to the matters specified in the Notice of Disagreement. At the end of such thirty (30) day period, the Purchaser and the Seller Parties shall submit to the Independent Expert for review any and all matters that remain in dispute and were included in the Notice of Disagreement. The parties shall instruct the Independent Expert to render its decision as to such disputed items and the effect of its decision on the Revised Closing Statement as promptly as practicable but in no event later than sixty (60) days after the date of such submission. Each party shall furnish to the Independent Expert such working papers and other relevant documents and information relating to the disputed items, and shall provide interviews, answer questions and otherwise cooperate with the Independent Expert as the Independent Expert may reasonably request in connection with its determination of such disputed items. In the event either party shall participate in teleconferences or meetings with, or make presentations to, the Independent Expert, the other party shall be entitled to reasonable advance notice of, and to participate in, such teleconferences, meetings or presentations. The terms of appointment and engagement of the Independent Expert shall be as agreed upon between the parties in writingpurchase price.
Appears in 1 contract
Closing Purchase Price Adjustment. (a) Unless Sellers shall prepare in good faith and, not less than three (3) Business Days prior to the parties shall have previously mutually agreed in writing that any portions Closing Date, deliver to Buyer, an estimated balance sheet of the estimated Company as of the Effective Time (the "Estimated Closing Amounts are to be considered the Final Closing Amounts (as defined belowBalance Sheet") for purposes hereof (which agreement shall be irrevocable), or with respect to the Final Closing Amount for Used Vehicles which will be irrevocably finalized accompanied by the parties no later than five (5) days after the Closing, then, as promptly as practicable, and in any event within forty- five (45) days after the Closing Date (except the Final Closing Amounts for Used Vehicles), the Purchaser shall prepare and deliver to the Seller Parties a statement (the “Revised "Estimated Closing Statement”") setting forth the Purchaser’s good faith Sellers' calculation of (i) the Cash on Hand as of the Effective Time (the "Estimated Cash on Hand"), (ii) Net Working Capital as of the Effective Time (the "Estimated Net Working Capital Amount"), (iii) the outstanding Debt of the Company as of the Closing Amounts (including all the "Estimated Closing Debt Amount"), and (iv) outstanding Seller Expenses as of the components thereof set forth in Closing (the definition thereof"Estimated Seller Expenses Amount"), together with such schedules and data with respect to . Sellers shall prepare the determination thereof as are appropriate to support the calculations set forth in the Revised Estimated Closing Statement. The Revised Closing Statement shall be prepared Balance Sheet in accordance with GAAP and the terms assumptions and procedures set forth on Exhibit B of this Agreement and Agreement, which is attached solely for illustrative purposes to demonstrate the Purchase Price Calculation/Accounting Principles. The parties agree that manner in which the purpose of preparing Estimated Closing Balance Sheet, the Revised Closing Statement and determining the Final Closing Amounts (and all components thereof) and the related adjustments contemplated by this Section 2.07 is to measure the amount of the Final Closing Amounts (and all components thereof) in accordance with the terms of this Agreement and the Purchase Price Calculation/Accounting Principles, and such process is not intended to permit the introduction of different accounting methods, policies, principles, practices, procedures, judgments, classifications or estimation methodologies for the purpose of determining the Final Closing Amounts (and all components thereof) other than those set forth in the Purchase Price Calculation/Accounting Principles. Following the delivery of the Revised Estimated Closing Statement, the Purchaser Closing Balance Sheet and the Closing Statement are to be prepared. Upon delivery of the Estimated Closing Balance Sheet and Estimated Closing Statement, the Company shall provide the Seller Parties Buyer and their its Representatives with reasonable access to the Transferred Recordsrelevant employees, work papers accountants and other documents that were used in the preparation of, or otherwise relate to, the Revised Closing Statement, internal books and external accountants, relevant personnel and properties records of the Purchaser and its Subsidiaries, to permit the Seller Parties and their Representatives Company to review the Revised Closing Statement and accuracy of such amounts. In the Purchaser’s event that Buyer does not agree in good faith with Sellers' calculation of the Estimated Net Working Capital Amount, Estimated Cash on Hand Adjustment Amount, Estimated Closing Debt Amount (and all components thereof) as set forth therein. The Revised Closing Statement shall become final and binding upon the parties on the thirtieth (30th) day following receipt thereof by the and/or Estimated Seller Parties, unless the Seller Parties give written notice of their disagreement with the Revised Closing Statement (a “Notice of Disagreement”) to the Purchaser prior to such date. Any Notice of Disagreement shall specify in reasonable detail the nature of any disagreement so asserted and include the Seller Parties’ calculation of the Closing Amounts. If a timely Notice of Disagreement is received by the Purchaser, then the Revised Closing Statement (as revised in accordance with this sentence) shall become final and binding upon the parties on the earlier of (i) the date on which the Purchaser and the Seller Parties resolve in writing any differences they have with respect to the matters specified in the Notice of Disagreement and (ii) the date on which all such disputed matters are finally resolved in writing by the Independent Expert pursuant to the procedures set forth in this Section 2.07. During the thirty (30) day period following the delivery of a Notice of DisagreementExpenses Amount, the Purchaser Sellers' Representative and the Seller Parties Buyer shall work negotiate in good faith to resolve mutually agree upon acceptable estimates and each such Party shall consider in writing good faith any differences proposed comments or changes that they the other Party may have with respect reasonably suggest; provided, however, that Sellers' failure to include any changes by Buyer or Buyer's failure to accept changes or positions of Sellers, or the matters specified acceptance by any Party of the Estimated Closing Balance Sheet and Estimated Closing Statement, shall not limit or otherwise affect any such Party's right to include such changes or other changes in the Notice of Disagreement. At the end of such thirty (30) day period, the Purchaser and the Seller Parties shall submit to the Independent Expert for review any and all matters that remain in dispute and were included in the Notice of Disagreement. The parties shall instruct the Independent Expert to render its decision as to such disputed items and the effect of its decision on the Revised Closing Statement as promptly as practicable but in no event later than sixty (60) days after the date of such submission. Each party shall furnish to the Independent Expert such working papers and other relevant documents and information relating to the disputed items, and shall provide interviews, answer questions and otherwise cooperate with the Independent Expert as the Independent Expert may reasonably request in connection with its determination of such disputed items. In the event either party shall participate in teleconferences Balance Sheet or meetings withClosing Statement, or make presentations to, the Independent Expert, the other party shall be entitled to reasonable advance notice of, and to participate in, such teleconferences, meetings or presentations. The terms of appointment and engagement constitute an acknowledgement by any Party of the Independent Expert shall be as agreed upon between accuracy of the parties in writingEstimated Cash on Hand, Estimated Net Working Capital Amount, Estimated Closing Debt Amount or the Estimated Seller Expenses Amount.
Appears in 1 contract
Samples: Membership Interest and Warrant Purchase Agreement (Hibbett Sports Inc)
Closing Purchase Price Adjustment. (ai) Unless On the parties shall have previously mutually agreed in writing date that any portions of the estimated Closing Amounts are is no more than three business days prior to be considered the Final Closing Amounts (as defined below) for purposes hereof (which agreement shall be irrevocable), or with respect to the Final Closing Amount for Used Vehicles which will be irrevocably finalized by the parties no later than five (5) days after the Closing, then, the Company shall deliver to the Purchaser an estimated balance sheet of the Company as promptly as practicable, and in any event within forty- five (45) days after of 11:59 p.m. of the day immediately preceding the Closing Date (except the "Estimated Closing Balance Sheet"), which shall be prepared using accounting principles consistent with those used in prior periods, but which shall be adjusted to (i) eliminate any assets which are Excluded Assets and any liabilities which are not Assumed Liabilities, (ii) eliminate any prepaid expense to the extent that the rights of the Company under the contract to which the prepaid expense relates have not been assigned to the Purchaser, and (iii) eliminate any accruals for amounts due as a result of the delinquent payment of (or failure to pay) sales, use and payroll taxes, including but not limited to, any penalties, fines and interest. The allocation of the Purchase Price pursuant to Section 1.3 hereof shall not be used or in any way effect or cause an adjustment of the amounts otherwise set forth on the Estimated Closing Balance Sheet, the Closing Balance Sheet and the Final Closing Amounts for Used VehiclesBalance Sheet. Prior to the Closing, representatives of the Purchaser and the Company shall conduct a physical count and inspection of all inventory of the Company and the amount thereof (which shall be appropriately adjusted in the Closing Balance Sheet to reflect increases or decreases thereof between the date of such physical count and inspection and the Closing), the Purchaser shall prepare and deliver to the Seller Parties a statement (the “Revised Closing Statement”) setting forth the Purchaser’s good faith calculation of the Closing Amounts (including all of the components thereof set forth in the definition thereof), together with such schedules and data with respect to the determination thereof as are appropriate to support the calculations set forth in the Revised Closing Statement. The Revised Closing Statement shall be prepared determined in accordance with United States generally accepted accounting principles applied on a basis consistent with preceding years and throughout the terms of this Agreement and the Purchase Price Calculation/Accounting Principles. The parties agree that the purpose of preparing the Revised Closing Statement and determining the Final Closing Amounts periods involved (and all components thereof) and the related adjustments contemplated by this Section 2.07 is to measure the amount of the Final Closing Amounts (and all components thereof) in accordance with the terms of this Agreement and the Purchase Price Calculation/Accounting Principles"GAAP"), and such process is not intended to permit the introduction of different accounting methods, policies, principles, practices, procedures, judgments, classifications or estimation methodologies for the purpose of determining the Final Closing Amounts (and all components thereof) other than those set forth in the Purchase Price Calculation/Accounting Principles. Following the delivery of the Revised Closing Statement, the Purchaser shall provide the Seller Parties and their Representatives with reasonable access to the Transferred Records, work papers and other documents that were be used in the preparation of, or otherwise relate to, the Revised Closing Statement, internal and external accountants, relevant personnel and properties of the Purchaser and its Subsidiaries, Estimated Closing Balance Sheet. The stockholders' equity reflected on the Estimated Closing Balance Sheet is referred to permit herein as the Seller Parties and their Representatives to review "Estimated Closing Stockholder's Equity". The difference between the Revised Closing Statement Adjusted Current Assets and the Purchaser’s calculation of the Closing Amount (and all components thereof) Adjusted Current Liabilities as set forth therein. The Revised Closing Statement shall become final and binding upon the parties reflected on the thirtieth (30th) day following receipt thereof by the Seller Parties, unless the Seller Parties give written notice of their disagreement with the Revised Estimated Closing Statement (a “Notice of Disagreement”) Balance Sheet is referred to the Purchaser prior to such date. Any Notice of Disagreement shall specify in reasonable detail the nature of any disagreement so asserted and include the Seller Parties’ calculation of the Closing Amounts. If a timely Notice of Disagreement is received by the Purchaser, then the Revised Closing Statement (as revised in accordance with this sentence) shall become final and binding upon the parties on the earlier of (i) the date on which the Purchaser and the Seller Parties resolve in writing any differences they have with respect to the matters specified in the Notice of Disagreement and (ii) the date on which all such disputed matters are finally resolved in writing by the Independent Expert pursuant to the procedures set forth in this Section 2.07. During the thirty (30) day period following the delivery of a Notice of Disagreement, the Purchaser and the Seller Parties shall work in good faith to resolve in writing any differences that they may have with respect to the matters specified in the Notice of Disagreement. At the end of such thirty (30) day period, the Purchaser and the Seller Parties shall submit to the Independent Expert for review any and all matters that remain in dispute and were included in the Notice of Disagreement. The parties shall instruct the Independent Expert to render its decision as to such disputed items and the effect of its decision on the Revised Closing Statement as promptly as practicable but in no event later than sixty (60) days after the date of such submission. Each party shall furnish to the Independent Expert such working papers and other relevant documents and information relating to the disputed items, and shall provide interviews, answer questions and otherwise cooperate with the Independent Expert herein as the Independent Expert may reasonably request in connection with its determination of such disputed items. In the event either party shall participate in teleconferences or meetings with, or make presentations to, the Independent Expert, the other party shall be entitled to reasonable advance notice of, and to participate in, such teleconferences, meetings or presentations. The terms of appointment and engagement of the Independent Expert shall be as agreed upon between the parties in writing"Estimated Closing Working Capital".
Appears in 1 contract
