Completion Accounts. 6.1 The Buyer shall procure that the Group prepares drafts of the Completion Accounts and the Statement in the format set out in part 2 of schedule 7 (the “Statement”), on the basis of the accounting policies and procedures set out in schedule 8 and deliver them to the Seller within 40 Business Days of Completion. 6.2 The Seller shall notify the Buyer in writing within 20 Business Days of receipt of such draft Completion Accounts and the Statement whether or not it accepts the draft Completion Accounts and Statement for the purposes of this agreement. 6.3 If the Seller notifies the Buyer that it does not accept such draft Completion Accounts and Statement: (a) it shall, at the same time as it notifies the Buyer that it does not accept such draft Completion Accounts and Statement, set out in such notice in writing its reasons in reasonable detail for such non-acceptance and specify the adjustments which, in its opinion, should be made to the draft Completion Accounts and the Statement in order to comply with the requirements of this agreement; and (b) the parties shall use all reasonable endeavours to: (i) meet and discuss the objections of the Seller, and (ii) try to reach agreement upon the adjustments (if any) required to be made to the draft Completion Accounts and the Statement, in each case, within 15 Business Days of the Seller’s notice of non-acceptance pursuant to clause 6.2 (or such other time as the Parties may agree in writing). 6.4 If the Seller is satisfied with the draft Completion Accounts and the Statement (either as originally submitted or after adjustments agreed between the Seller and the Buyer) or if the Seller fails to notify the Buyer of its non-acceptance of the draft Completion Accounts and the Statement within the 15 Business Day period referred to in clause 6.2, then the draft Completion Accounts and the Statement (incorporating any agreed adjustments) shall constitute the Completion Accounts and the Statement for the purposes of this agreement. 6.5 If the Seller and the Buyer do not reach agreement within the 15 Business Day period referred to in clause 6.3(b) (or such other time as the Parties may agree in writing) then the matters in dispute (and only those) shall be referred, on the application of either the Seller or the Buyer, for determination by an independent firm of internationally recognised chartered accountants to be agreed upon by the Seller and the Buyer or, failing agreement, to be selected, on the application of either the Seller or the Buyer, by the President for the time being of the Institute of Chartered Accountants in England and Wales or his duly appointed deputy (the “firm”). The following provisions shall apply to such determination: (a) the Buyer and/or the Buyer’s accountants and the Seller and/or the Seller’s accountants shall each promptly (and in any event within such time frame as reasonably enables the firm to make its decision in accordance with the time frame set down in clause 6.5(b)) prepare and deliver to the firm a written statement on the matters in dispute (together with the relevant supporting documents); (b) the firm shall be requested to give its decision within 15 Business Days (or by such later date as the firm determines) of the confirmation and acknowledgment by the firm of its appointment hereunder; (c) in giving such determination, the firm shall state what adjustments (if any) are necessary to the draft Completion Accounts and the Statement in respect of the matters in dispute in order to comply with the requirements of this agreement and shall give its reasons therefor; (d) the firm shall act as an expert (and not as an arbitrator) in making any such determination which shall be final and binding on the Parties (in the absence of manifest error); (e) each Party shall bear the costs and expenses of all counsel and other advisers, witnesses and employees retained by it and the costs and the expenses of the firm shall be borne between the Seller and the Buyer in such proportions as the firm shall in its discretion determine or, in the absence of any such determination, equally between the Seller and the Buyer. 6.6 When the Seller and the Buyer reach (or pursuant to clause 6.4 are deemed to reach) agreement on the Completion Accounts and the Statement or when the Completion Accounts and the Statement are finally determined at any stage in accordance with the procedures set out in this clause 6: (a) the Completion Accounts and the Statement as so agreed or determined shall be the Completion Accounts and the Statement for the purposes of this agreement and shall be final and binding on the Parties; and (b) the Working Capital Amount, the Debt and the Cash shall be as set out in the Statement. 6.7 Subject to any rule of law or any regulatory body or any provision of any contract or arrangement entered into prior to the date of this agreement to the contrary, the Seller shall procure that each member of the Sellers’ Group shall, and the Buyer shall procure that the Group shall, promptly provide each other, their respective advisers, the firm, the Buyer’s accountants and the Seller’s accountants with all information (in their respective possession or control) relating to the operations of the Group, including access at all reasonable times to all the Group’s employees, books, records, and other relevant information and all co-operation and assistance, as may in any such case be reasonably required to: (a) enable the production of the Completion Accounts and the Statement; and (b) enable the firm to determine the Completion Accounts and the Statement. The Seller and the Buyer hereby authorise each other, their respective advisers and the firm to take copies of all information which they have agreed to provide under this clause 6.7. 6.8 Subject to clause 6.5(e), the Seller and the Buyer shall each bear their own costs and expenses arising out of the preparation and review of the Completion Accounts and the Statement.
Appears in 2 contracts
Samples: Share Purchase Agreement, Share Purchase Agreement (Willbros Group, Inc.\NEW\)
Completion Accounts. 6.1 7.1 The Buyer shall procure that the Group prepares drafts of the Completion Accounts and the Statement in the format set out in part 2 of schedule 7 6 (the “Statement”), on the basis of the accounting policies and procedures set out in schedule 8 7 and deliver delivers them to the Seller within 40 Business Days 75 days of Completion.
6.2 7.2 The Seller shall notify the Buyer in writing within 20 Business Days 45 days of receipt of such draft Completion Accounts and the Statement whether or not it accepts the draft Completion Accounts and Statement for the purposes of this agreementAgreement.
6.3 7.3 If the Seller notifies the Buyer that it does not accept such draft Completion Accounts and Statement:
(a) it shall, at the same time as it notifies the Buyer that it does not accept such draft Completion Accounts and Statement, set out in such notice in writing its reasons in reasonable detail for such non-acceptance and specify the adjustments which, in its opinion, should be made to the draft Completion Accounts and the Statement in order to comply with the requirements of this agreementAgreement; and
(b) the parties shall use all reasonable endeavours to:
(i) meet and discuss the objections of the Seller, ; and
(ii) try to reach agreement upon the adjustments (if any) required to be made to the draft Completion Accounts and the Statement, Statement in each case, within 15 20 Business Days of the Seller’s notice of non-acceptance pursuant to clause 6.2 7.2 (or such other time as the Parties parties may agree in writing).
6.4 7.4 If the Seller is satisfied with the draft Completion Accounts and the Statement (either as originally submitted or after adjustments agreed between the Seller and the Buyer) or if the Seller fails to notify the Buyer of its non-acceptance of the draft Completion Accounts and the Statement within the 15 Business Day 45 day period referred to in clause 6.27.2, then the draft Completion Accounts and the Statement (incorporating any agreed adjustments) shall constitute the Completion Accounts and the Statement for the purposes of this agreementAgreement.
6.5 7.5 If the Seller and the Buyer do not reach agreement within the 15 20 Business Day period referred to in clause 6.3(b7.3(b) (or such other time as the Parties parties may agree in writing) then the matters in dispute and in respect of which reasonable details have been provided by the Seller to the Buyer at the time that it notified the Buyer that it does not accept the Completion Accounts and the Statement in accordance with clause 7.3(a) (and only those) shall be referredreferred for determination by an expert to be agreed by the Seller and the Buyer, and failing such agreement by the Seller and the Buyer within 10 Business Days following the end of the 20 Business Day period referred to in clause 7.3(b) (or such other time as the Seller and the Buyer may agree in writing), on the application of either the Seller Buyer or the Buyer, for determination Seller by an independent firm of internationally recognised chartered accountants to be agreed upon by the Seller and the Buyer or, failing agreement, to be selected, on the application of either the Seller or the Buyer, expert appointed by the President for the time being of the Institute of Chartered Accountants in of England and Wales or his duly appointed deputy from time to time (the “firmFirm”). The following provisions shall apply to such determination:
(a) the Buyer and/or the Buyer’s accountants and the Seller and/or the Seller’s accountants shall each promptly (and in any event within such time frame as reasonably enables the firm Firm to make its decision in accordance with the time frame set down in clause 6.5(b7.5(b)) prepare and deliver to the firm Firm a written statement on the matters in dispute (together with the relevant supporting documents);
(b) the firm Firm shall be requested to give its decision within 15 20 Business Days (or by such later date as the firm determinesBuyer and the Seller and the Firm agree in writing) of the confirmation and acknowledgment by the firm Firm of its appointment hereunder;
(c) in giving such determination, the firm Firm shall state what adjustments (if any) are necessary to the draft Completion Accounts and the Statement in respect of the matters in dispute in order to comply with the requirements of this agreement Agreement and shall give its reasons therefor;
(d) the firm Firm shall act as an expert (and not as an arbitrator) in making any such determination which determination, and the Completion Accounts and Statement, as adjusted by the Firm shall be deemed to be finally determined and shall be final and binding on the Parties parties (in the absence of manifest error);
(e) each Party party shall bear the costs and expenses of all counsel and other advisers, witnesses and employees retained by it and the costs and the expenses of the firm Firm shall be borne between the Seller and the Buyer in such proportions as the firm Firm shall in its discretion determine or, in the absence of any such determination, equally between the Seller and the Buyer.
6.6 7.6 When the Seller and the Buyer reach (or pursuant to clause 6.4 7.4 are deemed to reach) agreement on the Completion Accounts and the Statement or when the Completion Accounts and the Statement are finally determined at any stage in accordance with the procedures set out in this clause 6:7 (including clause 7.5):
(a) the Completion Accounts and the Statement as so agreed or determined shall be the Completion Accounts and the Statement for the purposes of this agreement Agreement and shall be final and binding on the Partiesparties; and
(b) the Working Capital Amount, the Debt and the Cash Cash, in each case, shall be as set out in the Statement.
6.7 7.7 Subject to any rule of law or any regulatory body or any provision of any contract or arrangement entered into prior to the date of this agreement Agreement to the contrary, the Seller shall procure that each member of the Sellers’ Seller’s Group shall, and the Buyer shall procure that the Group shall, promptly provide each other, their respective advisers, the firmFirm, the Buyer’s accountants and the Seller’s accountants with all information (in their respective possession or control) relating to the operations of the Seller’s Group and/or the Group, as the case may be, including access at all reasonable times to all the GroupSeller’s Group and Group employees, books, records, and other relevant information and all co-operation and assistance, as may in any such case be reasonably required to:
(a) enable the production of the Completion Accounts and the Statement; and
(b) enable the firm Firm to determine the Completion Accounts and the Statement. The Seller and the Buyer hereby authorise each other, their respective advisers and the firm Firm to take copies of all information which they have agreed to provide under this clause 6.77.7.
6.8 7.8 Subject to clause 6.5(e7.5(e), the Seller and the Buyer shall each bear their own costs and expenses arising out of the preparation and review of the Completion Accounts and the Statement.
Appears in 2 contracts
Samples: Share Purchase Agreement, Share Purchase Agreement (Scientific Games Corp)
Completion Accounts. 6.1 The Buyer Vendors and the Purchaser shall use all reasonable endeavours to procure that the Company shall prepare Completion Accounts for the Group in respect of the period from the Accounting Date to the Completion Accounts Date and a draft Working Capital Statement in accordance with the provisions of Schedule 5 as soon as reasonably practicable after Completion and in any event within sixty (60) days of the Completion Date and that the Company shall deliver the same to the Purchaser and the Purchaser's Accountants.
6.2 The Purchaser shall procure that the Group prepares drafts Purchaser's Accountants shall, within forty five (45) days of the Purchaser's Accountants receiving the draft Completion Accounts and draft Working Capital Statement review the Statement same and applying the same basis and principals referred to in the format set out in part 2 of schedule 7 (the “Statement”), on the basis of the accounting policies and procedures set out in schedule 8 and clause 6.1 deliver them to the Seller within 40 Business Days of Completion.Purchaser and the Vendors a written notice stating either:
6.2 The Seller shall notify 6.2.1 that in their opinion the Buyer in writing within 20 Business Days of receipt of such draft Completion Accounts and the draft Working Capital Statement whether or not it accepts have been prepared in accordance with the provisions of clause 6.1; or
6.2.2 that they disagree with the draft Completion Accounts and Statement the draft Working Capital Statement, together with a statement detailing their reasons for disagreement and showing their proposed adjustments to the purposes of this agreementdraft Working Capital Statement.
6.3 If The Vendors shall have thirty (30) days from receipt of the Seller notifies notice referred to in clause 6.2.2 to serve a written notice on the Buyer Purchaser stating that it does not accept such draft Completion Accounts and Statementthey:
(a) it shall, at 6.3.1 agree with the same time as it notifies the Buyer that it does not accept such draft Completion Accounts and Statement, set out in such notice in writing its reasons in reasonable detail for such non-acceptance and specify the proposed adjustments which, in its opinion, should be made to the draft Completion Accounts and the Statement in order to comply draft Working Capital Statement; or
6.3.2 disagree with the requirements of this agreement; and
(b) the parties shall use all reasonable endeavours to:
(i) meet and discuss the objections of the Seller, and
(ii) try to reach agreement upon the proposed adjustments (if any) required to be made to the draft Completion Accounts and the draft Working Capital Statement, in each case, within 15 Business Days of the Seller’s notice of non-acceptance pursuant to clause 6.2 (or such other time as the Parties may agree in writing).
6.4 If the Seller is satisfied with Purchaser's Accountants or the Vendors serve a notice pursuant to clause 6.2.1 or 6.3.1 (as the case may be) the draft Completion Accounts and the draft Working Capital Statement (either as originally submitted or after adjustments agreed between the Seller and the Buyeradjusted if relevant) or if the Seller fails to notify the Buyer of its non-acceptance of the draft Completion Accounts and the Statement within the 15 Business Day period referred to in clause 6.2, then the draft Completion Accounts and the Statement (incorporating any agreed adjustments) shall constitute the Completion Accounts and the Statement for the purposes of this agreement.
6.5 If the Seller and the Buyer do not reach agreement within the 15 Business Day period referred to in clause 6.3(b) (or such other time as the Parties may agree in writing) then the matters in dispute (and only those) shall be referred, on the application of either the Seller or the Buyer, for determination by an independent firm of internationally recognised chartered accountants to be agreed upon by the Seller and the Buyer or, failing agreement, to be selected, on the application of either the Seller or the Buyer, by the President for the time being of the Institute of Chartered Accountants in England and Wales or his duly appointed deputy (the “firm”). The following provisions shall apply to such determination:
(a) the Buyer and/or the Buyer’s accountants and the Seller and/or the Seller’s accountants shall each promptly (and in any event within such time frame as reasonably enables the firm to make its decision in accordance with the time frame set down in clause 6.5(b)) prepare and deliver to the firm a written statement on the matters in dispute (together with the relevant supporting documents);
(b) the firm shall be requested to give its decision within 15 Business Days (or by such later date as the firm determines) of the confirmation and acknowledgment by the firm of its appointment hereunder;
(c) in giving such determination, the firm shall state what adjustments (if any) are necessary to the draft Completion Accounts and the Statement in respect of the matters in dispute in order to comply with the requirements of this agreement and shall give its reasons therefor;
(d) the firm shall act as an expert (and not as an arbitrator) in making any such determination which shall be final and binding on the Parties (in the absence of manifest error);
(e) each Party shall bear the costs and expenses of all counsel and other advisers, witnesses and employees retained by it and the costs and the expenses of the firm shall be borne between the Seller and the Buyer in such proportions as the firm shall in its discretion determine or, in the absence of any such determination, equally between the Seller and the Buyer.
6.6 When the Seller and the Buyer reach (or pursuant to clause 6.4 are deemed to reach) agreement on the Completion Accounts and the Statement or when the Completion Accounts and the Statement are finally determined at any stage in accordance with the procedures set out in this clause 6:
(a) the Completion Accounts and the Statement as so agreed or determined shall be the Completion Accounts and the Working Capital Statement respectively for the purposes of this agreement and shall be final and binding on the Parties; and
(b) the Working Capital Amount, the Debt and the Cash shall be as set out in the Statement.
6.7 Subject to any rule of law or any regulatory body or any provision of any contract or arrangement entered into prior to the date of this agreement to the contrary, the Seller shall procure that each member of the Sellers’ Group shall, and the Buyer shall procure that the Group shall, promptly provide each other, their respective advisers, the firm, the Buyer’s accountants and the Seller’s accountants with all information (in their respective possession or control) relating to the operations of the Group, including access at all reasonable times to all the Group’s employees, books, records, and other relevant information and all co-operation and assistance, as may in any Agreement but such case be reasonably required to:
(a) enable the production of the Completion Accounts and Working Capital Statement shall be without prejudice to the Statement; and
(b) enable Purchaser's right to claim under the firm to determine the Completion Accounts and the Statement. The Seller and the Buyer hereby authorise each otherWarranties, their respective advisers and the firm to take copies clause 10 or otherwise in respect of all information which they have agreed to provide under this clause 6.7.
6.8 Subject any matter, but subject always to clause 6.5(e), the Seller and the Buyer shall each bear their own costs and expenses arising out of the preparation and review of the Completion Accounts and the Statement9.
Appears in 2 contracts
Samples: Share Purchase Agreement (SFX Entertainment Inc), Share Purchase Agreement (SFX Entertainment Inc)
Completion Accounts. 6.1 10.1 The Buyer Vendors shall procure that within 30 days of Completion draft consolidated accounts for the Group prepares drafts as at 30 June 2001 shall be prepared in accordance with the provisions of Schedule 9.
10.2 Following the Completion Accounts and preparation of such draft accounts, the Statement in the format set out in part 2 of schedule 7 (the “Statement”), on the basis of the accounting policies and procedures set out in schedule 8 and deliver Company shall submit them to the Seller within 40 Business Days of CompletionPurchaser's Accountants who shall conduct an audit applying the same basis and principles referred to in Schedule 9. The Vendors shall make the working papers available to the Purchaser's Accountants if required by them in carrying out their review.
6.2 The Seller shall notify the Buyer in writing within 20 Business Days of receipt of such draft Completion Accounts and the Statement whether or not it accepts the draft Completion Accounts and Statement for the purposes of this agreement.
6.3 10.3 If the Seller notifies the Buyer that it does not accept such draft Completion Accounts and Statement:
(a) it shall, at the same time as it notifies the Buyer that it does not accept such draft Completion Accounts and Statement, set out in such notice in writing its reasons in reasonable detail for such non-acceptance and specify the adjustments which, in its opinion, should be made Purchaser's Accountants agree to the draft Completion Accounts form and the Statement in order to comply with the requirements of this agreement; and
(b) the parties shall use all reasonable endeavours to:
(i) meet and discuss the objections of the Seller, and
(ii) try to reach agreement upon the adjustments (if any) required to be made to the draft Completion Accounts and the Statement, in each case, within 15 Business Days of the Seller’s notice of non-acceptance pursuant to clause 6.2 (or such other time as the Parties may agree in writing).
6.4 If the Seller is satisfied with the draft Completion Accounts and the Statement (either as originally submitted or after adjustments agreed between the Seller and the Buyer) or if the Seller fails to notify the Buyer of its non-acceptance content of the draft Completion Accounts accounts within 60 days of the date on which the drafts were submitted (or within such other period as the Vendors and the Statement Purchaser may agree), the accounts as so agreed shall be the Completion Accounts, but such agreement shall be without prejudice to the Purchaser's right to claim under the Warranties, the Tax Warranties or otherwise in respect of any matter.
10.4 If the Purchaser's Accountants are not able to agree the form and content of the accounts within 60 days of the 15 Business Day date on which the drafts were first submitted (or within such other period referred to in clause 6.2, then as the draft Completion Accounts Vendors and the Statement (incorporating any agreed adjustments) shall constitute Purchaser may agree), the Completion Accounts and matter may be referred by the Statement for the purposes of this agreement.
6.5 If the Seller and the Buyer do not reach agreement within the 15 Business Day period referred to in clause 6.3(b) (or such other time as the Parties may agree in writing) then the matters in dispute (and only those) shall be referred, on the application of either the Seller Vendors or the Buyer, for determination by Purchaser to an independent firm of internationally recognised chartered accountants to be agreed upon selected by agreement between the Seller Vendors and the Buyer Purchaser or, failing agreement, to be selected, on the application of either the Seller or the Buyer, nominated by the President for the time being of the Institute of Chartered Accountants in England and Wales on the application of either the Vendors or his duly appointed deputy (the “firm”). The following provisions shall apply to such determinationPurchaser and:
(a) the Buyer and/or the Buyer’s 10.4.1 such independent firm of chartered accountants and the Seller and/or the Seller’s accountants shall each promptly (and in any event within such time frame as reasonably enables the firm to make its decision in accordance with the time frame set down in clause 6.5(b)) prepare and deliver to the firm a written statement on the matters in dispute (together with the relevant supporting documents);
(b) the firm shall be requested to give its decision within 15 Business Days settle any matter in dispute, applying the same basis and principles as are referred to in clause 10.1 and Schedule 9 and (or by such later date as unless both the firm determinesVendors and the Purchaser shall otherwise direct in writing) determine the form and content of the confirmation and acknowledgment by Completion Accounts; and
10.4.2 the decision of such firm of its appointment hereunder;
(c) chartered accountants as to the matter in giving such determination, the firm shall state what adjustments dispute and their determination (if any) are necessary as to the draft form and content of the Completion Accounts and the Statement in respect of the matters in dispute in order to comply with the requirements of this agreement and shall give its reasons therefor;
(d) the firm shall act as an expert (and not as an arbitrator) in making any such determination which shall be final and binding on the Parties (parties hereto and such chartered accountants shall be deemed to act as experts and not as arbitrators.
10.5 The costs incurred by the Vendors in the absence of manifest error);
(e) each Party shall bear the costs and expenses of all counsel and other advisers, witnesses and employees retained by it and the costs and the expenses respect of the firm preparation and determination of the Completion Accounts shall be borne between by the Seller Vendors other than the costs of the Purchaser's Accountants which shall be an adjustment to the Total Consideration (through the deduction of the Interim Bridge Loan in accordance with Schedule 1C). The costs of the independent chartered accountant, if any, shall be borne by the Vendors and the Buyer in such proportions as the firm shall in its discretion determine or, in the absence of any such determination, equally between the Seller and the BuyerPurchaser equally.
6.6 When 10.6 Within 7 days of the Seller and the Buyer reach (or pursuant to clause 6.4 are deemed to reach) agreement on determination of the Completion Accounts and in accordance with clauses 10.3 or 10.4 if the Statement or when amount of the net current assets (being current assets less current liabilities) shown in the Completion Accounts and is less than the Statement are finally determined at any stage amount of the net current assets as shown in accordance with the procedures set out in this clause 6:
Projected Completion Balance Sheet (a) the Completion Accounts and the Statement as so agreed or determined shall be the Completion Accounts and the Statement for the purposes of this agreement and shall be final and binding on the Parties; and
(b) the Working Capital Amount"Target Net Current Assets"), the Debt and Vendors will pay in cash to the Cash shall be Purchaser, subject to clause 10.7, an amount equal to their aggregate several liability (as set out in the Statementclause 1.10) of such shortfall and interest thereon as specified in clause 10.
6.7 Subject to any rule of law or any regulatory body or any provision of any contract or arrangement entered into prior to the date of this agreement to the contrary, the Seller shall procure that each member of the Sellers’ Group shall, and the Buyer shall procure that the Group shall, promptly provide each other, their respective advisers, the firm, the Buyer’s accountants and the Seller’s accountants with all information (in their respective possession or control) relating to the operations of the Group, including access at all reasonable times to all the Group’s employees, books, records, and other relevant information and all co-operation and assistance, as may in any such case be reasonably required to:
(a) enable the production of the Completion Accounts and the Statement; and
(b) enable the firm to determine the Completion Accounts and the Statement. The Seller and the Buyer hereby authorise each other, their respective advisers and the firm to take copies of all information which they have agreed to provide under this clause 6.7.
6.8 Subject to clause 6.5(e), the Seller and the Buyer shall each bear their own costs and expenses arising out of the preparation and review of the Completion Accounts and the Statement.
Appears in 2 contracts
Samples: Principal Share Purchase Agreement (Opentv Corp), Principal Share Purchase Agreement (Opentv Corp)
Completion Accounts. 6.1 4.1 The Buyer Vendor and the Purchaser shall procure that on the Group prepares drafts Completion Date there shall be a stocktaking of the Stock (which shall be attended by representatives of the Vendor and the Purchaser) and the Purchaser shall procure that, as soon as practicable following the Completion Date and in any event not later than 60 days after the Completion Date, a draft of the Completion Accounts ("DRAFT COMPLETION ACCOUNTS") shall be prepared by the Purchaser in accordance with clause 4.2 and delivered to the Statement Vendor.
4.2 The draft Completion Accounts shall be prepared:
(a) in a format which complies with the requirements of schedule 4 of the Companies Xxx 0000; and
(b) on a historical cost basis and on a going concern basis in accordance with the accounting principles and practices generally accepted in the format set out United Kingdom (UK GAAP) which are in part 2 force at the date hereof, including all applicable statements of schedule 7 standard accounting practice and financial reporting standards; and
(the “Statement”c) subject to sub-clauses 4.2(a) and 4.2(b), on using the basis same accounting principles, policies, bases and practices as were used in the preparation of the accounting Accounts; and
(d) notwithstanding the provisions of clauses 4.2(a), (b) and (c) in accordance with the principles and policies and procedures set out in schedule 8 10; and
(e) so as to indicate the Net Asset Value, the Assumed Liabilities, the Warranty Claims Reserve, the Bad Debts Reserve and deliver them the apportionments pursuant to the Seller within 40 Business Days of Completionclause 14.1.
6.2 The Seller shall notify 4.3 Unless the Buyer Vendor notifies the Purchaser in writing within 20 Business Days of 30 days after receipt of such draft Completion Accounts and the Statement whether or that it does not it accepts the accept that such draft Completion Accounts comply with this clause 4, the Vendor shall be deemed to have accepted such draft as complying with this clause 4.
4.4 If within the period of 30 days referred to in clause 4.3 the Vendor shall notify the Purchaser in writing that it does not accept that the said draft Completion Accounts comply with this clause 4 then the Vendor and Statement the Purchaser shall use their respective reasonable endeavours to reach agreement upon appropriate adjustments to the said draft Completion Accounts.
4.5 When the Vendor accepts or is deemed to accept that the said draft Completion Accounts comply with this clause 4, then such draft Completion Accounts shall be the Completion Accounts for the purposes of this agreementAgreement and shall be final and binding on the parties.
6.3 4.6 If the Seller notifies the Buyer that it does not accept such draft Completion Accounts and Statement:
(a) it shall, at the same time as it notifies the Buyer that it does not accept such draft Completion Accounts and Statement, set out in such notice in writing its reasons in reasonable detail for such non-acceptance and specify the adjustments which, in its opinion, should be made to the draft Completion Accounts Vendor and the Statement Purchaser have not resolved any such matter in order to comply with dispute within 30 days following the requirements of this agreement; and
(b) the parties shall use all reasonable endeavours to:
(i) meet and discuss the objections expiry of the Seller, and
(ii) try to reach agreement upon the adjustments (if any) required to be made to the draft Completion Accounts and the Statement, in each case, within 15 Business Days period of the Seller’s notice of non-acceptance pursuant to clause 6.2 (or such other time as the Parties may agree in writing).
6.4 If the Seller is satisfied with the draft Completion Accounts and the Statement (either as originally submitted or after adjustments agreed between the Seller and the Buyer) or if the Seller fails to notify the Buyer of its non-acceptance of the draft Completion Accounts and the Statement within the 15 Business Day period 30 days referred to in clause 6.2, 4.4 or any other matter in dispute pursuant to clauses 8.8 and 8.1 then either party shall be entitled to refer any matter in dispute to such firm of independent chartered accountants as the draft Completion Accounts Vendor and the Statement (incorporating any agreed adjustments) shall constitute the Completion Accounts and the Statement for the purposes of this agreement.
6.5 If the Seller and the Buyer do not reach agreement within the 15 Business Day period referred to in clause 6.3(b) (or such other time as the Parties Purchaser may agree in writing) then within 14 days of a request by either of them to the matters in dispute (and only those) shall be referred, on the application of either the Seller or the Buyer, for determination by an independent firm of internationally recognised chartered accountants to be agreed upon by the Seller and the Buyer other or, failing agreementsuch agreement within such time, to be selected, on the application of either the Seller or the Buyer, by as the President for the time being of the Institute of Chartered Accountants in England and Wales may nominate on the application of the Vendor or his duly appointed deputy the Purchaser ("INDEPENDENT ACCOUNTANTS") for determination on the “firm”). The following provisions shall apply to such determinationbasis:
(a) the Buyer and/or Independent Accountants shall be instructed to notify the Buyer’s accountants Vendor and the Seller and/or the Seller’s accountants shall each promptly (and in Purchaser of their determination of any event within such time frame matter as reasonably enables the firm to make its decision in accordance with the time frame set down in clause 6.5(b)) prepare and deliver to the firm a written statement on the matters in dispute (together with the relevant supporting documents)soon as possible;
(b) the firm Vendor and the Purchaser shall be requested entitled to give its decision within 15 Business Days (or by such later date as make written submissions to the firm determines) Independent Accountants and to have sight of the confirmation and acknowledgment to comment on any submissions made by the firm of its appointment hereunderother but subject thereto the Independent Accountants shall have power to determine the procedure to be followed in relation to their determination;
(c) in giving making such submissions the Vendor and the Purchaser shall, where appropriate, state their respective best estimates of monetary amounts of the matters referred for determination;
(d) in making their determination the Independent Accountants shall act as experts and not as arbitrators, their decision as to any matter referred to them for determination shall in the firm absence of manifest error be final and binding in all respects on the Vendors and the Purchaser (but shall be without prejudice to the Purchaser's right to claim under the Warranties or otherwise in respect of any matter);
(e) in making their determination the Independent Accountants shall state what adjustments (if any) are necessary to be made to the said draft Completion Accounts and the Statement in respect of the matters in dispute in order to that they shall comply with the requirements of this agreement and shall give its reasons therefor;clause 4; and
(df) the firm shall act as an expert (and not as an arbitrator) in making any such determination which shall be final and binding on the Parties (in the absence of manifest error);
(e) each Party shall bear the costs fees and expenses of all counsel and other advisers, witnesses and employees retained by it and the costs and the expenses of the firm Independent Accountants shall be borne between the Seller and the Buyer in such proportions as the firm shall in its discretion determine or, in the absence of any such determination, equally between the Seller and the Buyerparties.
6.6 When the Seller 4.7 Following Completion and the Buyer reach (or pursuant to clause 6.4 are deemed to reach) agreement on until the Completion Accounts shall have been agreed or determined, the Vendor and the Statement or when the Completion Accounts and the Statement are finally determined at any stage in accordance with the procedures set out in this clause 6Purchaser shall respectively:
(a) the Completion Accounts and the Statement as so agreed give or determined shall be the Completion Accounts and the Statement for the purposes of this agreement and shall be final and binding on the Parties; and
(b) the Working Capital Amount, the Debt and the Cash shall be as set out in the Statement.
6.7 Subject to any rule of law or any regulatory body or any provision of any contract or arrangement entered into prior to the date of this agreement to the contrary, the Seller shall procure that each member of the Sellers’ Group shall, and the Buyer shall procure that the Group shall, promptly provide each other, their respective advisers, the firm, the Buyer’s accountants and the Seller’s accountants with all information (in their respective possession or control) relating to the operations of the Group, including Independent Accountants are given access at all reasonable times to all the Group’s employees, books, records, books and other relevant information and all co-operation and assistance, as may in any such case be reasonably required to:
(a) enable the production records of the Completion Accounts and Business which are in the Statementpossession or under the control of the Vendor or the Purchaser (as the case may be); and
(b) enable generally provide the firm Independent Accountants with such other information and assistance as they may reasonably require (including access to determine and assistance at reasonable times from personnel employed by the Completion Accounts and Vendor or the Statement. The Seller and Purchaser, as the Buyer hereby authorise each othercase may be) in relation to the review, their respective advisers and the firm to take copies of all information which they have agreed to provide under this clause 6.7.
6.8 Subject to clause 6.5(e), the Seller and the Buyer shall each bear their own costs and expenses arising out of the preparation and review agreement or determination of the Completion Accounts and the StatementAccounts.
Appears in 1 contract
Samples: Agreement for the Sale and Purchase of the Business and Assets (Quad Systems Corp /De/)
Completion Accounts. 6.1 The Buyer 5.1 Forthwith after Completion, the Vendor shall procure that preparation of and make available to the Group prepares drafts Purchaser draft accounts showing the anticipated amount of the Completion Accounts and the Statement in the format set out in part 2 of schedule 7 (the “Statement”), net asset value on the basis of the accounting policies and procedures set out in schedule 8 and deliver them to the Seller within 40 Business Days of Completion.
6.2 5.2 The Seller shall notify the Buyer in writing within 20 Business Days of receipt of such draft Completion Accounts Purchaser and the Statement whether or not it accepts the draft Completion Accounts and Statement for the purposes of this agreement.
6.3 If the Seller notifies the Buyer that it does not accept such draft Completion Accounts and Statement:
(a) it shall, at the same time as it notifies the Buyer that it does not accept such draft Completion Accounts and Statement, set out in such notice in writing its reasons in reasonable detail for such non-acceptance and specify the adjustments which, in its opinion, should be made to the draft Completion Accounts and the Statement in order to comply with the requirements of this agreement; and
(b) the parties Vendor shall use all reasonable endeavours to:to procure that such draft accounts shall in all respects comply with current legislation and Hong Kong standard accounting principles and practices.
5.3 Following the preparation of such draft accounts, the Purchaser's accountants shall audit them applying the same bases and principles referred to in Clause 5.2 and shall then produce a certificate (i"Certificate") meet and discuss stating the objections amount of the Seller, andNet Asset Value.
5.4 The Purchaser's accountants shall be deemed to act as experts and not as arbitrators.
5.5 If the Purchaser's accountants shall not be able to produce the Certificate in accordance with Clause 5.3 within fourteen (ii14) try to reach agreement upon days of the adjustments (if any) required to be made to date on which the draft Completion Accounts and the Statement, in each case, within 15 Business Days of the Seller’s notice of non-acceptance pursuant were first submitted to clause 6.2 them (or such other time period as the Parties may agree in writing).
6.4 If the Seller is satisfied with the draft Completion Accounts Vendor and the Statement (either as originally submitted or after adjustments agreed between the Seller and the BuyerPurchaser may agree) or if the Seller fails to notify Vendor disputes the Buyer form and content of its non-acceptance of the draft Completion Accounts and the Statement within the 15 Business Day period referred to in clause 6.2, then the draft Completion Accounts and the Statement (incorporating any agreed adjustments) shall constitute the Completion Accounts and or the Statement for Certificate the purposes of this agreement.
6.5 If the Seller and the Buyer do not reach agreement within the 15 Business Day period matter may be referred to in clause 6.3(b) (or such other time as the Parties may agree in writing) then the matters in dispute (and only those) shall be referred, on the application of by either the Seller Vendor or the Buyer, for determination by Purchaser to an independent firm of internationally recognised chartered accountants to be agreed upon accountant selected by the Seller and the Buyer agreement between them or, failing such agreement, to be selected, on the application of either the Seller or the Buyer, a person nominated by the President for the time being of the Institute Hong Kong Society of Chartered Accountants in England and Wales or his duly appointed deputy (the “firm”). The following provisions shall apply to such determination:
(a) the Buyer and/or the Buyer’s accountants and the Seller and/or the Seller’s accountants shall each promptly (and in any event within such time frame as reasonably enables the firm to make its decision in accordance with the time frame set down in clause 6.5(b)) prepare and deliver to the firm a written statement on the matters in dispute (together with application of either the relevant supporting documents);Vendor or the Purchaser and:-
(b) the firm 5.5.1 such chartered accountant shall be requested to give its decision within 15 Business Days settle any matter in dispute applying the same bases and principles referred to in Clause 5.2 and (or by such later date as unless both the firm determinesVendor and the Purchaser shall otherwise direct in writing) determine the form and content of the confirmation Completion Accounts and acknowledgment by the firm amount of its appointment hereunderthe Net Asset Value;
(c) 5.5.2 the decision of such chartered accountant as to the matter in giving such determination, the firm shall state what adjustments dispute and its determination (if any) are necessary as to the draft form and content of the Completion Accounts and the Statement in respect amount of the matters in dispute in order to comply with the requirements of this agreement and shall give its reasons therefor;
(d) the firm shall act as an expert (and not as an arbitrator) in making any such determination which Net Asset Value shall be final and binding on the Parties (in the absence of manifest error);parties hereto and such chartered accountant shall be deemed to act as an expert and not as an arbitrator.
(e) each Party shall bear the 5.6 The costs and expenses of all counsel and other advisers, witnesses and employees retained by it and the costs and the expenses of the firm shall be borne between the Seller and the Buyer Purchaser's accountants in such proportions as the firm shall in its discretion determine or, in the absence of any such determination, equally between the Seller and the Buyer.
6.6 When the Seller and the Buyer reach (or pursuant to clause 6.4 are deemed to reach) agreement on the Completion Accounts and the Statement or when the Completion Accounts and the Statement are finally determined at any stage in accordance with the procedures set out in this clause 6:
(a) the Completion Accounts and the Statement as so agreed or determined shall be the Completion Accounts and the Statement for the purposes of this agreement and shall be final and binding on the Parties; and
(b) the Working Capital Amount, the Debt and the Cash shall be as set out in the Statement.
6.7 Subject to any rule of law or any regulatory body or any provision of any contract or arrangement entered into prior to the date of this agreement to the contrary, the Seller shall procure that each member respect of the Sellers’ Group shall, preparation and the Buyer shall procure that the Group shall, promptly provide each other, their respective advisers, the firm, the Buyer’s accountants and the Seller’s accountants with all information (in their respective possession or control) relating to the operations of the Group, including access at all reasonable times to all the Group’s employees, books, records, and other relevant information and all co-operation and assistance, as may in any such case be reasonably required to:
(a) enable the production determination of the Completion Accounts and the Statement; andcosts of the independent chartered accountant (if any) shall be borne by the Purchaser.
(b) enable 5.7 The accounts as determined and prepared in accordance with this Clause 5 and as accepted and agreed by the firm to determine Vendor and the Purchaser, shall be the Completion Accounts and based on which the Statement. The Seller and the Buyer hereby authorise each other, their respective advisers and the firm to take copies of all information which they have agreed to provide under this clause 6.7Net Asset Value shall be determined.
6.8 Subject to clause 6.5(e)5.8 As soon as reasonably practicable after and in any event within three Business Days of issue of the Certificate or other determination of the Net Asset Value under Clause 5.5.1 and/or 5.5.2 of this Agreement, the Seller and Purchaser shall transfer the Buyer shall each bear their own costs and expenses arising out balance of the preparation and review Debt Price to the Vendor by way of telegraphic transfer. In the event that the Net Asset Value is less than the first instalment of the Completion Accounts Debt Price paid on the date hereof in accordance with the Deed of Assignment of Debt, Hunt (UK) and Hunt (NL) shall pay to the StatementPurchaser, by way xx xefund, any excess amount.
Appears in 1 contract
Samples: Shareholder Agreement (Hunt Corp)
Completion Accounts. 6.1 The Buyer shall procure that the Group prepares drafts of the Completion Accounts and the Statement in the format set out in part 2 of schedule 7 (the “Statement”), on the basis of the accounting policies and procedures set out in schedule 8 and deliver them to the Seller within 40 Business Days of Completion.
6.2 The Seller shall notify the Buyer in writing within 20 Business Days of receipt of such draft Completion Accounts and the Statement whether or not it accepts the draft Completion Accounts and Statement for the purposes of this agreement.
6.3 If the Seller notifies the Buyer that it does not accept such draft Completion Accounts and Statement:
(a) it shallAs promptly as practicable, at but in any event within sixty (60) calendar days after the same Closing Date, Purchaser shall prepare and deliver to Seller a balance sheet of the Company as of 12:01 a.m. Beijing time as it notifies on the Buyer that it does not accept such draft Completion Accounts and StatementClosing Date, set out in such notice in writing its reasons in reasonable detail for such non-acceptance and specify together with Purchaser’s calculations of the adjustments whichActual Net Debt Amount, in its opinion, should be made to the draft Completion Accounts Actual Working Capital Amount and the Statement in order to comply with the requirements of this agreement; and
(b) the parties shall use all reasonable endeavours to:
(i) meet and discuss the objections of the Seller, and
(ii) try to reach agreement upon the adjustments (if any) required to be made to the draft Completion Accounts and the StatementActual Working Capital Adjustment Amount, in each case, within 15 Business Days of which shall be prepared and calculated in accordance with the Seller’s notice of non-acceptance pursuant to clause 6.2 Accounting Principles (or such other time as deliverable, the Parties may agree in writing“Completion Accounts”).
6.4 If (b) Upon delivery of the Completion Accounts, Purchaser shall ensure that all information and assistance reasonably requested by Seller is satisfied with given to Seller to review Purchaser’s draft Completion Accounts and shall permit Representatives of Seller to have reasonable access to the books, records and other materials of the Company and the facilities and personnel of the Company, and working papers prepared by or for Purchaser and the Company, and take extracts from, or make copies of, the records, for the sole purposes of reviewing Purchaser’s draft Completion Accounts. If Purchaser breaches its obligations under this Section 2.5(b), the dispute period set forth in Section 2.5(c) shall automatically be extended until such breach is cured by the breaching Party.
(c) If Seller does not dispute the draft Completion Accounts and within twenty (20) Business Days after the Statement date on which Seller receives Purchaser’s draft Completion Accounts pursuant to Section 2.5(a) (either as originally submitted or after adjustments agreed between the Seller and “Final Objection Date”), Purchaser’s draft Completion Accounts will be deemed to be the Buyer) or if the Seller fails to notify the Buyer of its non-acceptance of the draft final Completion Accounts and the Statement within Actual Net Debt Amount, the 15 Business Day period referred to in clause 6.2, then the draft Completion Accounts Actual Working Capital Amount and the Statement (incorporating any agreed adjustments) shall constitute the Completion Accounts and the Statement for the purposes of this agreement.
6.5 If the Seller and the Buyer do not reach agreement within the 15 Business Day period referred to in clause 6.3(b) (or such other time as the Parties may agree in writing) then the matters in dispute (and only those) shall be referred, on the application of either the Seller or the Buyer, for determination by an independent firm of internationally recognised chartered accountants to be agreed upon by the Seller and the Buyer or, failing agreement, to be selected, on the application of either the Seller or the Buyer, by the President for the time being of the Institute of Chartered Accountants in England and Wales or his duly appointed deputy (the “firm”). The following provisions shall apply to such determination:
(a) the Buyer and/or the Buyer’s accountants and the Seller and/or the Seller’s accountants shall each promptly (and in any event within such time frame as reasonably enables the firm to make its decision in accordance with the time frame Actual Working Capital Adjustment Amount set down in clause 6.5(b)) prepare and deliver to the firm a written statement on the matters in dispute (together with the relevant supporting documents);
(b) the firm shall be requested to give its decision within 15 Business Days (or by such later date as the firm determines) of the confirmation and acknowledgment by the firm of its appointment hereunder;
(c) in giving such determination, the firm shall state what adjustments (if any) are necessary to the draft Completion Accounts and the Statement in respect of the matters in dispute in order to comply with the requirements of this agreement and shall give its reasons therefor;
(d) the firm shall act as an expert (and not as an arbitrator) in making any such determination which shall be final and binding on the Parties (in the absence of manifest error);
(e) each Party shall bear the costs and expenses of all counsel and other advisers, witnesses and employees retained by it and the costs and the expenses of the firm shall be borne between the Seller and the Buyer in such proportions as the firm shall in its discretion determine or, in the absence of any such determination, equally between the Seller and the Buyer.
6.6 When the Seller and the Buyer reach (or pursuant to clause 6.4 are deemed to reach) agreement on the Completion Accounts and the Statement or when the Completion Accounts and the Statement are finally determined at any stage in accordance with the procedures set out in this clause 6:
(a) the Completion Accounts and the Statement as so agreed or determined shall be the Completion Accounts and the Statement for the purposes of this agreement and shall forth therein will be final and binding on the Parties; and.
(bd) the Working Capital Amount, the Debt and the Cash shall be as set out in the Statement.
6.7 Subject If Seller provides Purchaser with written notice of dispute with respect to any rule aspect of law or any regulatory body or any provision of any contract or arrangement entered into Purchaser’s draft Completion Accounts prior to the date of this agreement to the contraryFinal Objection Date (a “Dispute Notice”), setting forth in reasonable detail each item so disputed (all such items, the Seller “Disputed Matters”), then such Disputed Matters will be resolved in accordance with Section 2.6. Any item or matter that is not a Disputed Matter shall procure that each member become final and binding, unless the resolution of any item or matter objected to in the Sellers’ Group Dispute Notice affects any such aspect, or presupposes the inaccuracy of any such aspect, in which case such aspect shall, and notwithstanding the Buyer shall procure that failure to specifically dispute such aspect in the Group shallDispute Notice, promptly provide each other, their respective advisers, be considered disputed in the firm, the Buyer’s accountants and the Seller’s accountants with all information (in their respective possession or control) relating to the operations of the Group, including access at all reasonable times to all the Group’s employees, books, records, and other relevant information and all co-operation and assistance, as may in any such case be reasonably required to:
(a) enable the production of the Completion Accounts and the Statement; and
(b) enable the firm to determine the Completion Accounts and the Statement. The Seller and the Buyer hereby authorise each other, their respective advisers and the firm to take copies of all information which they have agreed to provide under this clause 6.7Dispute Notice.
6.8 Subject to clause 6.5(e), the Seller and the Buyer shall each bear their own costs and expenses arising out of the preparation and review of the Completion Accounts and the Statement.
Appears in 1 contract
Completion Accounts. 6.1 The 13.1 Following Completion the Buyer shall procure that deliver to the Group prepares drafts of Warrantors a draft Completion Balance Sheet, not later than 90 Business Days following Completion.
13.2 The Completion Balance Sheet shall be prepared in accordance with the Completion Accounts specific accounting policies and the Statement in the format principles set out in part 2 of schedule 7 (the “Statement”), on the basis of the accounting policies and procedures set out in schedule 8 and deliver them to the Seller within 40 Business Days of CompletionSchedule 6.
6.2 The Seller shall notify 13.3 In order to enable the Buyer to prepare the draft Completion Balance Sheet and, as far as possible, to eliminate any potential areas of disagreement between the parties, the Warrantors shall provide such reasonable assistance as the Buyer may reasonably require in writing that connection.
13.4 Subject to timely compliance by the Buyer with its obligations pursuant to clause 13.1 if the Warrantors do not within 20 Business Days of receipt presentation to them of such draft Completion Accounts and the Statement whether or not it accepts the draft Completion Accounts and Statement for the purposes of this agreement.
6.3 If the Seller notifies Balance Sheet give notice to the Buyer that it does not accept such draft Completion Accounts and Statement:
(a) it shall, at the same time as it notifies the Buyer that it does not accept such draft Completion Accounts and Statement, set out in such notice in writing its reasons in reasonable detail for such non-acceptance and specify the adjustments which, in its opinion, should be made to they disagree with the draft Completion Accounts Balance Sheet or any item thereof (which notice shall state the amounts and reasons for the disagreement in reasonable detail) (the "Warrantors’ Disagreement Notice"), the draft Completion Balance Sheet shall thereupon be deemed to constitute the Completion Balance Sheet, which shall be final and binding on the parties.
13.5 If the Warrantors serve a Warrantors’ Disagreement Notice within the requisite timescale, the Buyer and the Statement Warrantors shall attempt in order to comply with the requirements of this agreement; and
(b) the parties shall use all reasonable endeavours to:
(i) meet and discuss the objections of the Seller, and
(ii) try good faith to reach agreement upon the adjustments (in respect thereof, and if any) required they are unable to be made to the draft Completion Accounts and the Statement, in each case, do so within 15 10 Business Days of the Seller’s notice date of non-acceptance pursuant to clause 6.2 (or such other time as the Parties may agree in writing).
6.4 If the Seller is satisfied with the draft Completion Accounts and the Statement (either as originally submitted or after adjustments agreed between the Seller and the Buyer) or if the Seller fails to notify receipt by the Buyer of its non-acceptance of the draft Warrantors’ Disagreement Notice, either party may by notice (an "Appointment Notice") to the other require that the Completion Accounts and the Statement within the 15 Business Day period Balance Sheet be referred to in clause 6.2, then an independent chartered accountant (the draft Completion Accounts and "Independent Accountant") to resolve the Statement (incorporating any agreed adjustments) shall constitute the Completion Accounts and the Statement for the purposes of this agreement.
6.5 If the Seller and the Buyer do not reach agreement within the 15 Business Day period referred to in clause 6.3(b) (or such other time as the Parties may agree in writing) then the outstanding matters in dispute (and only those"Outstanding Matters in Dispute") in accordance with Clause 13.6 below.
13.6 Matters in dispute in relation to the Completion Balance Sheet shall be referred, on referred at the application request of either the Seller Warrantors or the Buyer, Buyer for determination by an independent firm of internationally recognised chartered accountants decision to the Independent Accountant to be agreed upon appointed by agreement between the Seller Warrantors and the Buyer or, failing agreement, to be selected, on the application in default of agreement within 10 Business Days of a request by either the Seller Warrantors or the BuyerBuyer to the other for the appointment of a particular accountant, by the then President for the time being of the Institute of Chartered Accountants in England and Wales or his duly appointed deputy (the “firm”). "ICAEW President") on the application of either the Warrantors or the Buyer.
13.7 The Independent Accountant shall be instructed to determine the Outstanding Matters in Dispute and the Independent Accountant shall decide the procedure to be followed in the determination subject to the following provisions which shall apply to such determinationthe Independent Accountant 's role in any event:
(a) 13.7.1 the Outstanding Matters in Dispute shall be notified to the Independent Accountant in writing by the Warrantors and/or the Buyer and/or within 10 Business Days of the Buyer’s accountants Independent Accountant 's appointment;
13.7.2 the terms of reference of the Independent Accountant shall be to determine the Outstanding Matters in Dispute, including the finalisation of the form and content of the Seller and/or the Seller’s accountants shall each promptly (and in any event within such time frame as reasonably enables the firm to make its decision Completion Balance Sheet in accordance with the time frame set down provisions of this agreement within 30 Business Days of receipt of the Warrantors’ and the Buyer's Submissions in clause 6.5(bReply (referred to below), or as soon as practicable thereafter;
13.7.3 the Buyer (and/or the Buyer's accountant on the Buyer's behalf) and the Warrantors (and/or the Warrantors accountant on the Warrantors behalf) shall each promptly prepare and deliver to the firm a written statement setting out their respective positions on the matters Outstanding Matters in dispute Dispute ("Opening Submissions") and shall, within 30 Business Days of the appointment of the Independent Accountant, submit to him and one another copies of their respective Opening Submissions;
13.7.4 within 30 Business Days following the completion of clause 13.7.3 above, the Warrantors and the Buyer shall each be entitled to comment in writing upon the Opening Submissions and documentation submitted by the other party ("Submissions in Reply"). Copies of such Submissions in Reply should be addressed and delivered to the Independent Accountant and the Warrantors or the Buyer (as the case may be);
13.7.5 the determination of the Independent Accountant pursuant to this clause shall be made in writing and such determination together with the relevant supporting documents)final Completion Balance Sheet shall be delivered by the Independent Accountant to the Warrantors and the Buyer;
(b) 13.7.6 the firm shall be requested to give its decision within 15 Business Days (or by such later date as the firm determines) of the confirmation and acknowledgment by the firm of its appointment hereunder;
(c) in giving such determination, the firm shall state what adjustments (if any) are necessary to the draft Completion Accounts and the Statement in respect of the matters in dispute in order to comply with the requirements of this agreement and shall give its reasons therefor;
(d) the firm Independent Accountant shall act as an expert (and not as an arbitrator) in making arbitrator and his determination of any such determination which matter falling within his jurisdiction shall be final and binding on the Parties Warrantors and the Buyer (in the absence of fraud or manifest error);
(e) each Party shall bear the costs and expenses of all counsel and other advisers. In particular, witnesses and employees retained by it and the costs and the expenses of the firm without limitation, his determination shall be borne between the Seller and the Buyer in such proportions as the firm shall in its discretion determine or, in the absence of any such determination, equally between the Seller and the Buyer.
6.6 When the Seller and the Buyer reach (or pursuant to clause 6.4 are deemed to reach) agreement on be incorporated into the Completion Accounts and the Statement or when the Completion Accounts and the Statement are finally determined at any stage in accordance with the procedures set out in this clause 6:
(a) the Completion Accounts and the Statement as so agreed or determined Balance Sheet, which shall be the Completion Accounts and the Statement for the purposes of this agreement and shall then be final and binding on the Parties; andparties;
(b) 13.7.7 the Working Capital Amount, expenses of the Debt and the Cash Independent Accountant shall be borne as set out in he shall direct at the Statement.
6.7 Subject to time he makes any rule of law or any regulatory body or any provision of any contract or arrangement entered into prior to determination or, failing such direction, equally between the date of this agreement to Warrantors, on the contrary, the Seller shall procure that each member of the Sellers’ Group shallone hand, and the Buyer Buyer, on the other;
13.7.8 the parties shall procure that co-operate with the Group shall, promptly provide each other, their respective advisers, Independent Accountant and comply with his reasonable requests made in connection with the firm, the Buyer’s accountants and the Seller’s accountants carrying out of his duties under this agreement with all information (in their respective possession or control) relating respect to the operations of the Group, including access at all reasonable times to all the Group’s employees, books, records, and other relevant information and all co-operation and assistance, as may in any such case be reasonably required to:
(a) enable the production of the Completion Accounts and the Statement; and
(b) enable the firm to determine the Completion Accounts and the Statement. The Seller and the Buyer hereby authorise each other, their respective advisers and the firm to take copies of all information which they have agreed to provide under this clause 6.7Balance Sheet.
6.8 Subject to clause 6.5(e), the Seller and the Buyer shall each bear their own costs and expenses arising out of the preparation and review of the Completion Accounts and the Statement.
Appears in 1 contract
Samples: Share Sale and Purchase Agreement (Matthews International Corp)
Completion Accounts. 6.1 Immediately after Completion the Purchaser's Accountants (or their representatives) and the Auditors (or their representatives) shall, if the Purchaser elects, participate in a physical stocktake conducted by the Company at the Properties.
6.2 The Buyer Purchaser and the Vendors shall use all reasonable endeavours to procure that draft accounts for the Group prepares drafts Company in respect of the period from the Accounting Date to the Completion Date shall be prepared by the Company as soon as reasonably practicable after such stocktake and such accounts:
6.2.1 shall be prepared on the same accounting bases and in accordance with the same accounting and valuation principles and practices as the Accounts; and
6.2.2 shall in all respects comply with current legislation and standard accounting principles and practice.
6.3 Following the preparation of such draft accounts, the Company shall submit them to the Auditors who shall conduct an audit applying the same bases and principles referred to in Clause 6.2 and produce the Completion Accounts and a draft statement as to the Statement in amount of the format set out in part 2 of schedule 7 Net Assets (the “Statement”), on "NET ASSET STATEMENT") confirming that in their opinion the basis of the accounting policies and procedures set out in schedule 8 and deliver them to the Seller within 40 Business Days of Completion.
6.2 The Seller shall notify the Buyer in writing within 20 Business Days of receipt of such draft Completion Accounts have been prepared in accordance with the provisions of this Clause 6. The Auditors shall agree in advance with the Purchaser's Accountants what audit procedures should be employed in conducting the audit and shall carry out the Statement whether or not it accepts audit on that basis
6.4 The Auditors shall, as soon as reasonably practicable, submit the draft Completion Accounts and draft Net Asset Statement to the Purchaser's Accountants for the purposes of this agreement.
6.3 If the Seller notifies the Buyer that it does not accept such draft Completion Accounts and Statement:
(a) it shall, at the same time as it notifies the Buyer that it does not accept such draft Completion Accounts and Statement, set out in such notice in writing its reasons in reasonable detail for such non-acceptance and specify the their review to determine if there are any material adjustments which, in its opinion, should be made required to the draft Completion Accounts and the Statement draft Net Asset Statement. The Vendors shall procure that the Auditors' working papers and the Company's books and accounts are made available to the Purchaser's Accountants, if required by them in order carrying out their review.
6.5 If the Purchaser's Accountants and the Auditors are able to comply with agree the requirements of this agreement; and
(b) the parties shall use all reasonable endeavours to:
(i) meet form and discuss the objections content of the Seller, and
(ii) try to reach agreement upon the adjustments (if any) required to be made to the draft Completion Accounts and the Statement, in each case, Net Asset Statement within 15 Business Days 30 days of the Seller’s notice of non-acceptance pursuant date on which the drafts were submitted to clause 6.2 the Purchaser's Accountants (or within such other time period as the Parties Vendors and the Purchaser may agree in writing).
6.4 If , the Seller is satisfied with the draft Completion Accounts and the Statement (either accounts as originally submitted or after adjustments so agreed between the Seller and the Buyer) or if the Seller fails to notify the Buyer of its non-acceptance of the draft Completion Accounts and the Statement within the 15 Business Day period referred to in clause 6.2, then the draft Completion Accounts and the Statement (incorporating any agreed adjustments) shall constitute be the Completion Accounts and the Auditors shall issue a Net Asset Statement for which shall be final and binding on the purposes Parties but such statement shall be without prejudice to the Purchaser's right to claim under the Warranties, the Deed of Indemnity or otherwise in respect of any matter. In carrying out their functions under this agreementAgreement, the Auditors and the Purchaser's Accountants shall be deemed to be acting as experts and not as arbitrators.
6.5 6.6 If the Seller Purchaser's Accountants and the Buyer do Auditors shall not reach agreement be able to agree the form and content of the Completion Accounts and the Net Asset Statement within 30 days of the 15 Business Day period referred date on which the draft accounts were first submitted to in clause 6.3(b) the Purchaser's Accountants (or within such other time period as the Parties Vendors and the Purchaser may agree in writing) then the matters in dispute (and only those) shall matter may be referred, on referred by the application of either the Seller Vendors or the Buyer, for determination by Purchaser to an independent firm of internationally recognised chartered accountants to be agreed upon selected by agreement between the Seller Vendors and the Buyer Purchaser or, failing agreement, to be selected, on the application of either the Seller or the Buyer, nominated by the President for the time being of the Institute Hong Kong Society of Chartered Accountants in England and Wales on the application of any of the Vendors or his duly appointed deputy (the “firm”). The following provisions shall apply to such determinationPurchaser and:
(a) the Buyer and/or the Buyer’s 6.6.1 such independent firm of chartered accountants and the Seller and/or the Seller’s accountants shall each promptly (and in any event within such time frame as reasonably enables the firm to make its decision in accordance with the time frame set down in clause 6.5(b)) prepare and deliver to the firm a written statement on the matters in dispute (together with the relevant supporting documents);
(b) the firm shall be requested to give its decision within 15 Business Days settle any matter in dispute, applying the same bases and principles as are referred to in Clause 6.2 and (or by such later date as unless both the firm determines) of the confirmation and acknowledgment by the firm of its appointment hereunder;
(c) in giving such determination, the firm shall state what adjustments (if any) are necessary to the draft Completion Accounts Vendors and the Statement Purchaser shall otherwise direct in respect of writing) determine the matters in dispute in order to comply with the requirements of this agreement form and shall give its reasons therefor;
(d) the firm shall act as an expert (and not as an arbitrator) in making any such determination which shall be final and binding on the Parties (in the absence of manifest error);
(e) each Party shall bear the costs and expenses of all counsel and other advisers, witnesses and employees retained by it and the costs and the expenses of the firm shall be borne between the Seller and the Buyer in such proportions as the firm shall in its discretion determine or, in the absence of any such determination, equally between the Seller and the Buyer.
6.6 When the Seller and the Buyer reach (or pursuant to clause 6.4 are deemed to reach) agreement on the Completion Accounts and the Statement or when the Completion Accounts and the Statement are finally determined at any stage in accordance with the procedures set out in this clause 6:
(a) the Completion Accounts and the Statement as so agreed or determined shall be the Completion Accounts and the Statement for the purposes of this agreement and shall be final and binding on the Parties; and
(b) the Working Capital Amount, the Debt and the Cash shall be as set out in the Statement.
6.7 Subject to any rule of law or any regulatory body or any provision of any contract or arrangement entered into prior to the date of this agreement to the contrary, the Seller shall procure that each member of the Sellers’ Group shall, and the Buyer shall procure that the Group shall, promptly provide each other, their respective advisers, the firm, the Buyer’s accountants and the Seller’s accountants with all information (in their respective possession or control) relating to the operations of the Group, including access at all reasonable times to all the Group’s employees, books, records, and other relevant information and all co-operation and assistance, as may in any such case be reasonably required to:
(a) enable the production content of the Completion Accounts and the Net Asset Statement; and
6.6.2 the decision of such firm of chartered accountants as to the matter in dispute and their determination (bif any) enable as to the firm to determine the Completion Accounts form and the Statement. The Seller and the Buyer hereby authorise each other, their respective advisers and the firm to take copies of all information which they have agreed to provide under this clause 6.7.
6.8 Subject to clause 6.5(e), the Seller and the Buyer shall each bear their own costs and expenses arising out of the preparation and review content of the Completion Accounts and the Statement.Net Asset Statement shall, in the absence of
Appears in 1 contract
Samples: Agreement for the Sale and Purchase of Shares (Asia Online LTD)
Completion Accounts. 6.1 The Buyer Company, with the support of Xxxxx Xxxxxxxx for their review in accordance with the detailed scope of work attached in Schedule 3.3(a), shall procure that prepare the Group prepares drafts of the draft Completion Accounts and the Statement in the format set out in part 2 of schedule 7 (the “Statement”), on the basis of the accounting policies and procedures set out in schedule 8 and deliver them to the Seller within 40 Purchaser no later than seventy-five (75) Business Days of Completion.
6.2 The Seller shall notify after the Buyer in writing Completion Date. As soon as practicable after such delivery, and at the latest within 20 ninety (90) Business Days of receipt of after such draft Completion Accounts and delivery, the Statement whether or not it accepts the draft Completion Accounts and Statement for the purposes of this agreement.
6.3 If the Seller notifies the Buyer that it does not accept such draft Completion Accounts and Statement:
(a) it shall, at the same time as it notifies the Buyer that it does not accept such draft Completion Accounts and Statement, set out in such notice in writing its reasons in reasonable detail for such non-acceptance and specify the adjustments which, in its opinion, should be made Purchaser shall deliver to the draft Completion Accounts and Sellers’ Agents a written certificate (the Statement in order to comply with the requirements of this agreement; and
(b“Certificate”) the parties shall use all reasonable endeavours tosetting forth:
(i) meet the Working Capital, the Cash and discuss the objections Financial Debt of the SellerCompany as of the Completion Date (the “Completion Accounts”), andtogether with copies of all supporting accounts as of the Completion Date, as well as their calculation of the purchase price adjustment (the “Purchase Price Adjustment”), if applicable;
(ii) try to reach agreement upon a calculation of the adjustments adjustment payments (if any) required to be made to the draft Completion Accounts and the Statement, in each case, within 15 Business Days of the Seller’s notice of non-acceptance pursuant to clause 6.2 (or such other time as the Parties may agree in writing).
6.4 If the Seller is satisfied with the draft Completion Accounts and the Statement (either as originally submitted or after adjustments agreed between the Seller and the Buyer) or if the Seller fails to notify the Buyer of its non-acceptance of the draft Completion Accounts and the Statement within the 15 Business Day period referred to in clause 6.2, then the draft Completion Accounts and the Statement (incorporating any agreed adjustments) shall constitute the Completion Accounts and the Statement for the purposes of this agreement.
6.5 If the Seller and the Buyer do not reach agreement within the 15 Business Day period referred to in clause 6.3(b) (or such other time as the Parties may agree in writing) then the matters in dispute (and only those) shall be referred, on the application of either the Seller or the Buyer, for determination by an independent firm of internationally recognised chartered accountants to be agreed upon by the Seller and the Buyer or, failing agreement, to be selected, on the application of either the Seller or the Buyer, by the President for the time being of the Institute of Chartered Accountants in England and Wales or his duly appointed deputy (the “firm”Clause 3.3(e). The following provisions shall apply to such determination:
(a) the Buyer and/or the Buyer’s accountants and the Seller and/or the Seller’s accountants shall each promptly (and in any event within such time frame as reasonably enables the firm to make its decision in accordance with the time frame set down in clause 6.5(b)) prepare and deliver to the firm a written statement on the matters in dispute (together with the relevant supporting documents);
(b) the firm shall be requested to give its decision within 15 Business Days (or by such later date as the firm determines) of the confirmation and acknowledgment by the firm of its appointment hereunder;
(c) in giving such determination, the firm shall state what adjustments (if any) are necessary to the draft Completion Accounts and the Statement in respect of the matters in dispute in order to comply with the requirements of this agreement and shall give its reasons therefor;
(d) the firm shall act as an expert (and not as an arbitrator) in making any such determination which shall be final and binding on the Parties (in the absence of manifest error);
(e) each Party shall bear the costs and expenses of all counsel and other advisers, witnesses and employees retained by it and the costs and the expenses of the firm shall be borne between the Seller and the Buyer in such proportions as the firm shall in its discretion determine or, in the absence of any such determination, equally between the Seller and the Buyer.
6.6 When the Seller and the Buyer reach (or pursuant to clause 6.4 are deemed to reach) agreement on the Completion Accounts and the Statement or when the Completion Accounts and the Statement are finally determined at any stage in accordance with the procedures set out in this clause 6:
(a) the Completion Accounts and the Statement as so agreed or determined shall be the Completion Accounts and the Statement for the purposes of this agreement and shall be final and binding on the Parties; and
(b) the Working Capital Amount, the Debt and the Cash shall be as set out in the Statement.
6.7 Subject to any rule of law or any regulatory body or any provision of any contract or arrangement entered into prior to the date of this agreement to the contrary, the Seller shall procure that each member of the Sellers’ Group shall, Agents and the Buyer shall procure that the Group shall, promptly provide each other, their respective advisers, the firm, the Buyer’s accountants and the Seller’s accountants with all information (in their respective possession or control) relating to the operations of the Group, including access at all reasonable times to all the Group’s employees, books, records, and other relevant information and all co-operation and assistance, as may in any such case be reasonably required to:
(a) enable the production of the Completion Accounts and the Statement; and
(b) enable the firm to determine the Completion Accounts and the Statement. The Seller and the Buyer hereby authorise each other, their respective advisers shall have access to the records, accounts and other information of relevance as well as to the firm to take copies of all information which they have agreed to provide under this clause 6.7.
6.8 Subject to clause 6.5(e), the Seller management and the Buyer shall each bear their own costs and expenses arising out relevant employees of the Company as they may reasonably request for the preparation of and conduct of their review of the Completion Accounts and the StatementCertificate and, if applicable, in the event of any subsequent disagreement and expert procedure pursuant to Clauses 3.3(b) through 3.3(d) below. Upon reasonable request, the Purchaser shall also procure the support of the Company’s accounting staff. In case the Purchaser fails to notify the Completion Accounts and the Certificate within the seventy-five (75) Business Day period mentioned above, the Sellers’ Agents shall be entitled to formally summon the Purchaser to provide the Completion Accounts and the Certificate and take any appropriate legal action, including in summary proceedings, should the Purchaser not remedy this breach within five (5) Business Days thereafter. In the case where the Sellers’ Agents would not have received the Completion Accounts and the Certificate within a forty-five (45) Business Day period following the end of the seventy-five (75) Business Day period mentioned above, the Sellers’ Agents shall be entitled to notify the Purchaser that the Provisional Purchase Price shall be deemed final and binding for all purposes under this Agreement.
Appears in 1 contract
Samples: Securities Sale and Purchase Agreement (Brady Corp)
Completion Accounts. 6.1 The Buyer shall procure that the Group prepares drafts of the Completion Accounts and the Statement in the format set out in part 2 of schedule 7 (the “Statement”), on the basis of the accounting policies and procedures set out in schedule 8 and deliver them to the Seller within 40 Business Days of Completion.
6.2 The Seller shall notify the Buyer in writing within 20 Business Days of receipt of such draft Completion Accounts and the Statement whether or not it accepts the draft Completion Accounts and Statement for the purposes of this agreement.
6.3 If the Seller notifies the Buyer that it does not accept such draft Completion Accounts and Statement:
(a) it shallAs soon as practicable following the Closing, at and in any event no later than sixty (60) days after the same Closing Date, Buyer shall prepare and deliver to Seller a balance sheet of the Target Companies as of 12:01 a.m. Hong Kong time as it notifies on the Buyer that it does not accept such draft Completion Accounts and StatementClosing Date, set out in such notice in writing its reasons in reasonable detail for such non-acceptance and specify together with Buyer’s calculations of the adjustments whichActual Net Debt Amount, in its opinion, should be made to the draft Completion Accounts Actual Working Capital Amount and the Statement in order to comply with the requirements of this agreement; and
(b) the parties shall use all reasonable endeavours to:
(i) meet and discuss the objections of the Seller, and
(ii) try to reach agreement upon the adjustments (if any) required to be made to the draft Completion Accounts and the StatementActual Working Capital Adjustment Amount, in each case, within 15 Business Days which shall be prepared and calculated in accordance with the practices, principles and methodologies set forth in Schedule 2.08 of the Seller’s notice of non-acceptance pursuant to clause 6.2 Disclosure Schedule, and otherwise in accordance with GAAP consistently applied in accordance with the Target Companies’ past practice (or such other time as deliverable, the Parties may agree in writing“Completion Accounts”).
6.4 If (b) Upon delivery of the Completion Accounts, Buyer must ensure that all information and assistance requested by Seller is satisfied with given to Seller to review Buyer’s draft Completion Accounts and must permit representatives of Seller to have reasonable access to management of and the Target Companies to review Buyer’s draft of the Completion Accounts, and take extracts from, or make copies of, the Records for the sole purposes of reviewing Buyer’s draft Completion Accounts.
(c) If Seller does not dispute the draft Completion Accounts and within twenty (20) Business Days after the Statement date on which Seller receives Buyer’s draft Completion Accounts pursuant to Section 2.08(a) (either as originally submitted or after adjustments agreed between the Seller and “Final Objection Date”), Buyer’s draft Completion Accounts will be deemed to be the Buyer) or if the Seller fails to notify the Buyer of its non-acceptance of the draft final Completion Accounts and the Statement within Actual Net Debt Amount, the 15 Business Day period referred to in clause 6.2, then the draft Completion Accounts Actual Working Capital Amount and the Statement (incorporating any agreed adjustments) shall constitute the Completion Accounts and the Statement for the purposes of this agreement.
6.5 If the Seller and the Buyer do not reach agreement within the 15 Business Day period referred to in clause 6.3(b) (or such other time as the Parties may agree in writing) then the matters in dispute (and only those) shall be referred, on the application of either the Seller or the Buyer, for determination by an independent firm of internationally recognised chartered accountants to be agreed upon by the Seller and the Buyer or, failing agreement, to be selected, on the application of either the Seller or the Buyer, by the President for the time being of the Institute of Chartered Accountants in England and Wales or his duly appointed deputy (the “firm”). The following provisions shall apply to such determination:
(a) the Buyer and/or the Buyer’s accountants and the Seller and/or the Seller’s accountants shall each promptly (and in any event within such time frame as reasonably enables the firm to make its decision in accordance with the time frame Actual Working Capital Adjustment Amount set down in clause 6.5(b)) prepare and deliver to the firm a written statement on the matters in dispute (together with the relevant supporting documents);
(b) the firm shall be requested to give its decision within 15 Business Days (or by such later date as the firm determines) of the confirmation and acknowledgment by the firm of its appointment hereunder;
(c) in giving such determination, the firm shall state what adjustments (if any) are necessary to the draft Completion Accounts and the Statement in respect of the matters in dispute in order to comply with the requirements of this agreement and shall give its reasons therefor;
(d) the firm shall act as an expert (and not as an arbitrator) in making any such determination which shall forth therein will be final and binding on the Parties (in the absence of manifest error);parties.
(ed) each Party shall bear the costs and expenses If Seller provides Buyer with written notice of all counsel and other advisers, witnesses and employees retained by it and the costs and the expenses dispute with respect to any aspect of the firm shall be borne between the Seller and the Buyer in such proportions as the firm shall in its discretion determine or, in the absence of any such determination, equally between the Seller and the Buyer.
6.6 When the Seller and the Buyer reach (or pursuant to clause 6.4 are deemed to reach) agreement on the ’s draft Completion Accounts and prior to the Statement or when Final Objection Date (a “Dispute Notice”), setting forth in reasonable detail each item so disputed (all such items, the Completion Accounts and the Statement are finally determined at any stage “Disputed Matters”), then such Disputed Matters will be resolved in accordance with the procedures set out in this clause 6:
(a) the Completion Accounts Section 2.09 and the Statement as so agreed or determined shall be the Completion Accounts and the Statement for the purposes of this agreement and shall undisputed items will be final and binding on the Parties; and
(b) the Working Capital Amount, the Debt and the Cash shall be as set out in the Statement.
6.7 Subject to any rule of law or any regulatory body or any provision of any contract or arrangement entered into prior to the date of this agreement to the contrary, the Seller shall procure that each member of the Sellers’ Group shall, and the Buyer shall procure that the Group shall, promptly provide each other, their respective advisers, the firm, the Buyer’s accountants and the Seller’s accountants with all information (in their respective possession or control) relating to the operations of the Group, including access at all reasonable times to all the Group’s employees, books, records, and other relevant information and all co-operation and assistance, as may in any such case be reasonably required to:
(a) enable the production of the Completion Accounts and the Statement; and
(b) enable the firm to determine the Completion Accounts and the Statement. The Seller and the Buyer hereby authorise each other, their respective advisers and the firm to take copies of all information which they have agreed to provide under this clause 6.7.
6.8 Subject to clause 6.5(e), the Seller and the Buyer shall each bear their own costs and expenses arising out of the preparation and review of the Completion Accounts and the Statement.
Appears in 1 contract
Samples: Equity Interest Purchase Agreement (Advanced Micro Devices Inc)
Completion Accounts. 6.1 4.1 The Buyer shall procure that will, within 60 calendar days, prepare and deliver to the Group prepares Seller drafts of the Completion Accounts.
4.2 The Seller may serve a written notice on the Buyer stating that it objects or does not object to the draft Completion Accounts within a period of 30 calendar days following receipt of the draft Completion Accounts and if it serves a notice not objecting to the Statement draft Completion Accounts then such drafts shall then be the agreed Completion Accounts for the purposes of this Agreement. Any notice objecting to the draft Completion Accounts shall include the items and amounts in dispute as well as reasons (in reasonable detail) and any relevant supporting documentation in relation to the format set out in part 2 of schedule 7 (dispute.
4.3 If the “Statement”), on Seller does not notify the basis Buyer within 30 calendar days from receipt of the accounting policies draft Completion Accounts that it objects to those draft Completion Accounts then it shall be deemed to have agreed with them and procedures set out in schedule 8 and the draft Completion Accounts shall then be the agreed Completion Accounts for the purposes of this Agreement.
4.4 If the Buyer does not deliver them to the Seller the draft Completion Accounts within 40 Business Days of Completion.
6.2 The 60 calendar days after Completion then the Seller shall notify the Buyer in writing within 20 Business Days of receipt of may prepare such draft Completion Accounts and the Statement whether or not it accepts provisions of this Clause shall thereafter apply with the roles of the Buyer and the Seller reversed.
4.5 If within 30 calendar days of receipt of the draft Completion Accounts and Statement for the purposes of this agreement.
6.3 If the Seller notifies the Buyer that it does not accept such objects to the draft Completion Accounts Accounts, then either the Seller or the Buyer may require by notice in writing that the objection is referred to the Independent Accountant for determination.
4.6 Each of the Seller and Statementthe Buyer will provide (and the Buyer shall procure that the Company shall provide) to each of the Buyer, the Seller, their respective accountants (if any) and the Independent Accountant:
(a) it shallaccess to all accounts, at books, documents, records and papers relating to the same time Company as it notifies may be in their possession or under their control (but excluding such records which are subject to legal privilege or which relate to a party’s consideration of whether the Buyer that it does not accept such draft Completion Accounts and Statement, set out in such notice in writing its reasons in reasonable detail for such non-acceptance and specify the adjustments which, in its opinion, should be made to the draft Completion Accounts and the Statement in order to comply with the requirements of SCHEDULE 12);
(b) access to such personnel (including in the case of the Seller, the auditors and other professional advisers engaged by the Company prior to Completion) and premises; and
(c) acting in good faith, all such co-operation and assistance; as may reasonably be required to produce the Completion Accounts and resolve any dispute in relation to the same.
4.7 If the Net Asset Value of the Company (as set out in the Completion Accounts) is less than the Estimated NAV, then the Seller will pay to the Buyer, as a reduction in the Purchase Price, £1 for every £1 of such difference, such amount to be paid within twenty (20) calendar days after the date of agreement or determination of the Completion Accounts.
4.8 If the Net Asset Value of the Company (as set out in the Completion Accounts) is more than the Estimated NAV, then the Buyer will pay to the Seller, as an increase in the Purchase Price, £1 for every £1 of such difference, such amount to be paid within twenty (20) calendar days after the date of agreement or determination of the Completion Accounts.
4.9 Where the difference between the Estimated NAV and the Net Asset Value of the Company is such that the increase or decrease in the Purchase Price pursuant to clauses 4.7 or 4.8 (as appropriate) would (but for this agreementclause 4.9) be an amount of £10,000 or less, then such difference shall be deemed to be zero and there shall be no adjustment to the Purchase Price pursuant to those clauses.
4.10 Where the actual amount of the Seller Intercompany Loan is higher than the amount of the Seller Intercompany Loan in the Estimated NAV:
(a) the amount that the Seller owes to the Buyer due to the decrease in Net Asset Value of the Company shall be set off in the Completion Accounts against the additional amount that the Company owes to the Seller under the Seller Intercompany Loan; and
(b) the parties Buyer shall use all reasonable endeavours to:
(i) meet and discuss pay to the objections Company as an additional advance under the Buyer Completion Loan the amount by which the actual amount of the Seller, and
(ii) try to reach agreement upon Seller Intercompany Loan is higher than the adjustments (if any) required to be made to the draft Completion Accounts and the Statement, in each case, within 15 Business Days amount of the Seller’s notice of non-acceptance pursuant to clause 6.2 (or such other time as Seller Intercompany Loan in the Parties may agree in writing)Estimated NAV.
6.4 If 4.11 Where the amount of the Seller Intercompany Loan in the Estimated NAV is satisfied with higher than the draft Completion Accounts and the Statement (either as originally submitted or after adjustments agreed between actual amount of the Seller and the Buyer) or if the Seller fails to notify the Buyer of its non-acceptance of the draft Completion Accounts and the Statement within the 15 Business Day period referred to in clause 6.2, then the draft Completion Accounts and the Statement (incorporating any agreed adjustments) shall constitute the Completion Accounts and the Statement for the purposes of this agreement.
6.5 If the Seller and the Buyer do not reach agreement within the 15 Business Day period referred to in clause 6.3(b) (or such other time as the Parties may agree in writing) then the matters in dispute (and only those) shall be referred, on the application of either the Seller or the Buyer, for determination by an independent firm of internationally recognised chartered accountants to be agreed upon by the Seller and the Buyer or, failing agreement, to be selected, on the application of either the Seller or the Buyer, by the President for the time being of the Institute of Chartered Accountants in England and Wales or his duly appointed deputy (the “firm”). The following provisions shall apply to such determination:Intercompany Loan,
(a) the amount that the Buyer and/or the Buyer’s accountants and owes to the Seller and/or the Seller’s accountants shall each promptly (and in any event within such time frame as reasonably enables the firm to make its decision in accordance with the time frame set down in clause 6.5(b)) prepare and deliver due to the firm a written statement on increase in Net Asset Value of the matters in dispute (together with the relevant supporting documents);
(b) the firm Company shall be requested to give its decision within 15 Business Days (or by such later date as the firm determines) of the confirmation and acknowledgment by the firm of its appointment hereunder;
(c) set off in giving such determination, the firm shall state what adjustments (if any) are necessary to the draft Completion Accounts and the Statement in respect of the matters in dispute in order to comply with the requirements of this agreement and shall give its reasons therefor;
(d) the firm shall act as an expert (and not as an arbitrator) in making any such determination which shall be final and binding on the Parties (in the absence of manifest error);
(e) each Party shall bear the costs and expenses of all counsel and other advisers, witnesses and employees retained by it and the costs and the expenses of the firm shall be borne between the Seller and the Buyer in such proportions as the firm shall in its discretion determine or, in the absence of any such determination, equally between the Seller and the Buyer.
6.6 When the Seller and the Buyer reach (or pursuant to clause 6.4 are deemed to reach) agreement on the Completion Accounts and against the Statement or when additional amount that the Completion Accounts and Seller owes to the Statement are finally determined at any stage in accordance with Company under the procedures set out in this clause 6:
(a) the Completion Accounts and the Statement as so agreed or determined shall be the Completion Accounts and the Statement for the purposes of this agreement and shall be final and binding on the PartiesSeller Intercompany Loan; and
(b) the Working Capital Amount, the Debt and the Cash Company shall be as set out deemed to have repaid the amount by which the Seller Intercompany Loan in the Statement.
6.7 Subject to any rule Estimated NAV exceeds the actual amount of law or any regulatory body or any provision of any contract or arrangement entered into prior the Seller Intercompany Loan to the date of this agreement to the contrary, the Seller shall procure that each member of the Sellers’ Group shall, and Buyer under the Buyer shall procure that the Group shall, promptly provide each other, their respective advisers, the firm, the Buyer’s accountants and the Seller’s accountants with all information (in their respective possession or control) relating to the operations of the Group, including access at all reasonable times to all the Group’s employees, books, records, and other relevant information and all co-operation and assistance, as may in any such case be reasonably required to:
(a) enable the production of the Completion Accounts and the Statement; and
(b) enable the firm to determine the Completion Accounts and the Statement. The Seller and the Buyer hereby authorise each other, their respective advisers and the firm to take copies of all information which they have agreed to provide under this clause 6.7Loan.
6.8 Subject to clause 6.5(e), the Seller and the Buyer shall each bear their own costs and expenses arising out of the preparation and review of the Completion Accounts and the Statement.
Appears in 1 contract
Samples: Share Purchase Agreement (NorthStar Realty Europe Corp.)
Completion Accounts. 6.1 7.1 The Buyer Purchaser shall procure that the Group prepares drafts as soon as possible, and in any event within 60 calendar days of the Completion Accounts and Date a draft Completion Balance Sheet (having the Statement same line items as the balance sheet contained in the format Accounts for the Sale Group member to which such draft Completion Balance Sheet relates and by way of example only, an illustrative calculation is set out in part 2 Appendix I) in respect of schedule 7 each of SCCL and UK OpCo (such Completion Balance Sheets together the “StatementDraft Completion Balance Sheets”)) are prepared and delivered to the Seller. Each Draft Completion Balance Sheet shall include a draft statement of Net Working Capital for the company to which such Completion Balance Sheet relates. The Draft Completion Balance Sheet for SCCL shall specify the Purchaser’s calculation of the SCCL Intergroup Debt. The Purchaser shall prepare the Draft Completion Balance Sheets in accordance with the Accounting Principles.
7.2 The Seller and the Seller’s Auditors shall be entitled to review the Draft Completion Balance Sheets for a period of 60 calendar days following receipt from the Purchaser.
7.3 The Purchaser shall provide the Seller and the Seller’s Auditors with such information as the Seller and the Seller’s Auditors shall reasonably require or shall procure that such information is provided to the Seller and the Seller’s Auditors and allow the Seller and the Seller’s Auditors access to each member of the Sale Group and its books and records, its employees and advisers (at reasonable times and upon reasonable notice and subject to the Seller agreeing in favour of the Purchaser to keep all confidential information disclosed to it in accordance with this clause 7.3 confidential on the basis of the accounting policies and procedures terms as set out in schedule 8 clause 21), and deliver them shall use its reasonable efforts to procure access to the Seller within 40 Business Days of Completion.
6.2 The Seller shall notify Purchaser’s Auditors (if retained) and their working papers (or, if the Buyer in writing within 20 Business Days of receipt of such draft Completion Accounts and the Statement whether or Purchaser’s Auditors are not it accepts the draft Completion Accounts and Statement retained for the purposes of this agreementpreparing the draft Completion Balance Sheet, the Purchaser’s own working papers or equivalent) in each case insofar as is reasonably required for the analysis and verification of the Draft Completion Balance Sheets (including the draft statements of Net Working Capital contained therein).
6.3 7.4 At or before the end of the period of 60 calendar days referred to in clause 7.2, the Seller shall either:
7.4.1 notify the Purchaser that it accepts each Draft Completion Balance Sheet in its entirety, in which case the Draft Completion Balance Sheets shall constitute the Completion Balance Sheets (and the amount of the Net Working Capital shall be the amount set out in the draft Net Working Capital statements contained therein) and such Draft Completion Balance Sheets shall be final and binding on the Seller and the Purchaser; or
7.4.2 deliver to the Purchaser written notice of those items and, where practicable, the amount in each Draft Completion Balance Sheet or draft statement of Net Working Capital, as appropriate, which it disputes, in which case only those items or amounts identified by the Seller (the “Disputed Items”) shall be in dispute and shall be agreed or determined in accordance with clause 7.5.
7.5 If the Seller notifies delivers a notice under clause 7.4.2 then the Buyer that it does not accept such draft Completion Accounts and Statement:
(a) it shall, at the same time as it notifies the Buyer that it does not accept such draft Completion Accounts and Statement, set out in such notice in writing its reasons in reasonable detail for such non-acceptance and specify the adjustments which, in its opinion, should be made to the draft Completion Accounts Seller and the Statement in order to comply with the requirements of this agreement; and
(b) the parties Purchaser shall use all their respective reasonable endeavours to:
(i) meet and discuss to agree the objections of the SellerDisputed Items within 30 calendar days, and
(ii) try to reach agreement upon the adjustments (if any) required to be made to the draft Completion Accounts and the Statement, in each case, within 15 Business Days of the Seller’s notice of non-acceptance pursuant to clause 6.2 (or such other time longer period as the Parties may agree in writing).
6.4 If the Seller is satisfied with the draft Completion Accounts and the Statement (either as originally submitted or after adjustments be agreed between them. Any Disputed Items agreed between the Seller and the Buyer) or if Purchaser within that 30 calendar day period shall be reflected in amendments to the Seller fails to notify Draft Completion Balance Sheets. At the Buyer end of its non-acceptance of the draft Completion Accounts and the Statement within the 15 Business Day period referred to in clause 6.2that 30 calendar day period, then the draft Completion Accounts and the Statement (incorporating any those Disputed Items which have not been agreed adjustments) shall constitute the Completion Accounts and the Statement for the purposes of this agreement.
6.5 If between the Seller and the Buyer do not reach agreement within the 15 Business Day period referred to in clause 6.3(bPurchaser (if any) (or such other time as the Parties may agree in writing) then the matters in dispute (and only those“Unresolved Disputed Items”) shall be referredreferred for final binding determination to such firm of independent accountants of international standing (the “Expert”) as the Seller and the Purchaser may agree or, on in the application absence of agreement within 10 Business Days following the expiry of such 30 day period, or longer period as agreed between the Seller and the Purchaser, as may be selected at the request of either the Seller or the Buyer, for determination by an independent firm of internationally recognised chartered accountants to be agreed upon by the Seller and the Buyer or, failing agreement, to be selected, on the application of either the Seller or the Buyer, Purchaser by the President for the time being of the Institute of Chartered Accountants in England and Wales or Wales, with instructions that the Expert render his duly appointed deputy decision on the Unresolved Disputed Items (and any matters specifically relating thereto) and notify it to the “firm”). The following provisions shall apply to such determination:
(a) the Buyer and/or the Buyer’s accountants Seller and the Purchaser within 30 days of the Expert accepting such referral. In each case, the Expert so selected (either by agreement between the Seller and/or and the Seller’s accountants Purchaser or otherwise in accordance with this clause 7.5) shall each promptly (act as expert and not as arbitrator and the Unresolved Disputed Items in any event within such time frame as reasonably enables a Draft Completion Balance Sheet will be determined by the firm to make its decision Expert in accordance with the time frame set down in clause 6.5(b)) prepare Accounting Principles and deliver such adjustments as are required to be made as a result of the Expert’s determination of such Unresolved Disputed Items shall be made to the firm a written statement on Draft Completion Balance Sheet in which such Unresolved Disputed Items appear or to which such Unresolved Disputed Items relate which shall then constitute the matters in dispute Completion Balance Sheet (together with and the relevant supporting documents);
(b) amount of the firm Net Working Capital shall be requested to give its decision within 15 Business Days (or by such later date the amount set out in the statement of Net Working Capital as the firm determinesso adjusted) of the confirmation and acknowledgment by the firm of its appointment hereunder;
(c) in giving such determination, the firm shall state what adjustments (if any) are necessary to the draft Completion Accounts and the Statement in respect of the matters in dispute in order to comply with the requirements of this agreement and shall give its reasons therefor;
(d) the firm shall act as an expert (and not as an arbitrator) in making any such determination which shall be final and binding on the Parties (in the absence of manifest error);
(e) each Party shall bear the costs and expenses of all counsel and other advisers, witnesses and employees retained by it Seller and the costs and the expenses Purchaser. Each of the firm shall be borne between the Seller and the Buyer in Purchaser shall respectively provide or procure the provision to the Expert of all such proportions information as the firm Expert shall reasonably require including from their respective Auditors and, in the case of the Purchaser, such business records and accounts of the Sale Group in the possession, custody or control of the Purchaser which the Expert shall in its discretion determine orconsider necessary. The decision of the Expert shall, in the absence of any such determinationfraud or manifest error, equally between the Seller and the Buyer.
6.6 When the Seller and the Buyer reach (or pursuant to clause 6.4 are deemed to reach) agreement on the Completion Accounts and the Statement or when the Completion Accounts and the Statement are finally determined at any stage in accordance with the procedures set out in this clause 6:
(a) the Completion Accounts and the Statement as so agreed or determined shall be the Completion Accounts and the Statement for the purposes of this agreement and shall be final and binding on the Parties; andPurchaser and the Seller. The Seller and/or the Purchaser shall pay the costs of the Expert as the Expert may direct failing which such costs shall be borne equally by the Seller and the Purchaser.
7.6 Within 7 Business Days of the agreement or final determination of the Completion Balance Sheets (b) and the Net Working Capital Amount, the Debt and the Cash shall be statements contained therein) as set out in this clause 7:
7.6.1 if the Statement.
6.7 Subject to any rule sum of law or any regulatory body or any provision the Net Working Capital of any contract or arrangement entered into prior SCCL and the Net Working Capital of UK OpCo (the “Aggregate Actual NWC”) is greater than the Aggregate Projected NWC, the Purchaser shall pay to the date of this agreement Seller an amount equal to the contraryexcess, PROVIDED THAT the maximum amount payable under this clause 7.6.1 shall not, when added to the amount by which the Completion Amount is increased under clause 4.2.1 (if any), exceed [*] );
7.6.2 if the Aggregate Projected NWC is greater than the Aggregate Actual NWC, the Seller shall pay to the Purchaser an amount equal to the excess;
7.6.3 if the SCCL Intergroup Debt shown in the Completion Balance Sheets is less than the amount of the Estimated SCCL Intergroup Debt, then (a) the Seller shall pay (or procure that each a Calpine Group member pays) to SCCL an amount equal to the deficit and (b) subject to and conditional upon the Seller’s compliance with sub-clause (a) of this clause 7.6.3, the Purchaser shall pay the Seller an amount equal to the deficit; and
7.6.4 if the SCCL Intergroup Debt shown in the SCCL Completion Balance Sheet is in excess of the Sellers’ amount of the Estimated SCCL Intergroup Debt, then (a) the Seller shall pay (or procure that a Calpine Group shallmember pays) the Purchaser an amount equal to the excess and (b) subject to and conditional upon the Seller’s compliance with sub-clause (a) of this clause 7.6.4, and the Buyer Purchaser shall procure that SCCL pays an amount equal to the Group shall, promptly provide each other, their respective advisers, excess to the firm, Seller which amount shall be in full and final settlement of the Buyer’s accountants SCCL Intergroup Debt and the Seller’s accountants with all information Seller shall (if requested to do so by the Purchaser) acknowledge the same in their respective possession or control) relating writing to the operations of the Group, including access at all reasonable times Purchaser. Any payments required to all the Group’s employees, books, records, and other relevant information and all co-operation and assistance, as may in any such case be reasonably required to:
(a) enable the production of the Completion Accounts and the Statement; and
(b) enable the firm to determine the Completion Accounts and the Statement. The Seller and the Buyer hereby authorise each other, their respective advisers and the firm to take copies of all information which they have agreed to provide made under this clause 6.77.6 will be made in accordance with clause 4.4.
6.8 Subject 7.7 The Purchaser shall not be entitled to clause 6.5(e), recover from the Seller and in respect of any Warranty being breached or being inaccurate or misleading or in respect of any breach of any other provision of this Agreement (or any other agreement pertaining to this transaction) or in respect of any indemnity contained in any agreement pertaining to this transaction to the Buyer shall each bear their own costs and expenses arising out extent that the amount which the Purchaser seeks to recover from the Seller has been taken into account in the calculation of the preparation and review of the Completion Accounts and the StatementNet Working Capital for either SCCL or UK OpCo.
Appears in 1 contract
Completion Accounts. 6.1 The Buyer 5.1 Immediately following Completion, the Purchaser shall procure that the Group prepares drafts Company carry out random stock checks on stock at Completion and a review of despatch notes in the period leading up to Completion.
5.2 If the Purchaser, acting in good faith, is dissatisfied with the results of any exercise carried out pursuant to Clause 5.1, the Purchaser may within 14 days of Completion (the "Election Date") elect to procure the preparation by the Company of a profit and loss account and a balance sheet (together with appropriate notes of the Completion Group as at the close of business on the last Business Day prior to the Election Date (the "Draft Accounts"). The Draft Accounts shall be delivered to the Vendor in accordance with clause 18 (Notices) as soon as reasonably practicable, and in any event, within 30 Business Days, following the Election Date, together with, if requested, all of the working papers used in the preparation of the Draft Accounts. The costs of preparing the Draft Accounts shall be borne by the Vendors and the Statement Purchaser equally.
5.3 The Vendors may dispute the Draft Accounts by notice (in this clause, the format set out "Notice") in part 2 of schedule 7 (the “Statement”), on the basis of the accounting policies and procedures set out in schedule 8 and deliver them writing to the Seller Purchaser within 40 10 Business Days of Completion.
6.2 receiving the Draft Accounts. The Seller Notice shall notify the Buyer in writing within 20 Business Days of receipt of such draft Completion Accounts and the Statement whether or not it accepts the draft Completion Accounts and Statement for the purposes of this agreement.
6.3 If the Seller notifies the Buyer that it does not accept such draft Completion Accounts and Statement:
specify (a) it shall, at the same time as it notifies the Buyer that it does not accept such draft Completion Accounts which items are disputed and Statement, set out in such notice in writing its reasons in reasonable detail for such non-acceptance and specify the adjustments which, in its opinion, should be made to the draft Completion Accounts and the Statement in order to comply with the requirements of this agreement; and
(b) the parties reasons therefor.
5.4 If the Vendors do not serve the Notice, the Draft Accounts shall use all reasonable endeavours to:constitute the Completion Accounts. If the Vendors do serve the Notice, then either:-
(i) meet if the Purchaser and discuss the objections of the SellerVendors, and
(ii) try to negotiating in good faith, reach agreement upon on the adjustments (if any) required to be made to the draft Completion Accounts and the Statement, items in each case, dispute within 15 10 Business Days of the Seller’s notice of non-acceptance pursuant to clause 6.2 Notice being served (or such other time longer period as the Parties Purchaser and the Vendor may agree in writing).
6.4 If , the Seller is satisfied with the draft Completion Draft Accounts shall be amended to reflect such agreement and the Statement (either as originally submitted or after adjustments agreed between the Seller and the Buyer) or if the Seller fails to notify the Buyer of its non-acceptance of the draft Completion Accounts and the Statement within the 15 Business Day period referred to in clause 6.2, then the draft Completion Accounts and the Statement (incorporating any agreed adjustments) shall constitute the Completion Accounts Accounts; or
(ii) if the Purchaser and the Statement for the purposes of this agreement.
6.5 If the Seller and the Buyer Vendors negotiating in good faith, do not reach agreement within in accordance with (i) above, the 15 Business Day period referred to in clause 6.3(b) (or such other time as the Parties may agree in writing) then the matters in dispute (and only those) shall be referred, on the application of either the Seller Purchaser or the Buyer, for determination by Vendors may refer the dispute to an independent firm chartered accountant (the "Expert") appointed by agreement between or in the absence of internationally recognised chartered accountants to be agreed upon by the Seller and the Buyer or, failing agreement, to be selected, on the application of either the Seller or the Buyer, an agreement by the President for the time being of the Institute of Chartered Accountants in England and Wales or his duly appointed deputy (Wales.
5.5 In any reference to the “firm”). The following provisions shall apply to such determination:
(a) the Buyer and/or the Buyer’s accountants and the Seller and/or the Seller’s accountants shall each promptly (and in any event within such time frame as reasonably enables the firm to make its decision Expert in accordance with sub-clause 5.4:-
5.5.1 the time frame set down in clause 6.5(b)) prepare and deliver to the firm a written statement on the matters in dispute (together with the relevant supporting documents);
(b) the firm shall be requested to give its decision within 15 Business Days (or by such later date as the firm determines) of the confirmation and acknowledgment by the firm of its appointment hereunder;
(c) in giving such determination, the firm shall state what adjustments (if any) are necessary to the draft Completion Accounts and the Statement in respect of the matters in dispute in order to comply with the requirements of this agreement and shall give its reasons therefor;
(d) the firm Expert shall act as an expert (and not as an arbitrator) ;
5.5.2 the decision of the Expert shall, in making any such determination which shall the absence of fraud or manifest error, be final and binding on the Parties (in the absence of manifest error);
(e) each Party shall bear the costs and expenses of all counsel and other advisers, witnesses and employees retained by it Purchaser and the costs Vendors and the expenses of the firm shall be borne between the Seller and the Buyer in such proportions as the firm shall in its discretion determine or, in the absence of any such determination, equally between the Seller and the Buyer.
6.6 When the Seller and the Buyer reach (or pursuant to clause 6.4 are deemed to reach) agreement on the Completion Accounts and the Statement or when the Completion Accounts and the Statement are finally determined at any stage in accordance with the procedures set out in this clause 6:
(a) the Completion Accounts and the Statement as so agreed or determined shall be the Completion Draft Accounts and amended to reflect the Statement for decision of the purposes Expert;
5.5.3 the costs of this agreement and the Expert shall be final and binding on paid by the Partiesparty against whom the dispute is determined; and
(b) 5.5.4 each of the Working Capital Amount, the Debt Vendors and the Cash Purchaser shall be respectively provide or procure the provision to the Expert of all such information as set out in the StatementExpert shall reasonably require.
6.7 Subject to any rule of law or any regulatory body or any provision of any contract or arrangement entered into prior to the date of this agreement to the contrary, the Seller shall procure that each member of the Sellers’ Group shall, and the Buyer shall procure that the Group shall, promptly provide each other, their respective advisers, the firm, the Buyer’s accountants and the Seller’s accountants with all information (in their respective possession or control) relating to the operations of the Group, including access at all reasonable times to all the Group’s employees, books, records, and other relevant information and all co-operation and assistance, as may in any such case be reasonably required to:
(a) enable the production 5.6 Following determination of the Completion Accounts pursuant to sub- clause 5.5, the amount of the Stock and the Statement; and
(b) enable the firm Net Asset Value shall be determined by reference to determine the Completion Accounts and the Statement. The Seller and the Buyer hereby authorise each other, their respective advisers and the firm to take copies of all information which they have agreed to provide under this clause 6.7Accounts.
6.8 Subject to clause 6.5(e), the Seller and the Buyer shall each bear their own costs and expenses arising out of the preparation and review of the Completion Accounts and the Statement.
Appears in 1 contract
Samples: Share Purchase Agreement (Advanced Marketing Services Inc)
Completion Accounts. 6.1 (1) The Buyer Purchaser shall, within 60 days of Completion, prepare a draft audited statement of the assets and liabilities of the Business at the Effective Time on the basis set out in Schedule 4 (the "Completion Accounts") together with a statement of Net Assets Transferred (as defined in subclause (9) below) (the "Statement of Net Assets Transferred"). For this purpose:
(a) the Purchaser shall procure that a return shall be prepared for each business unit in the Business in the form known as the "Final Accounts Pack" used for the consolidation by Glynwed and these returns will be consolidated;
(b) the Purchaser shall prepare an inventory of the Stocks as at the Effective Time on the basis also set out in Schedule 4; and
(c) the Seller shall procure that the Group prepares drafts Seller's Auditors give to the Purchaser's Auditors access to their working papers relating to the preparation of the Accounts under the appropriate "hold harmless letters".
(2) The Purchaser shall ensure that forthwith upon completion of the preparation of the draft Completion Accounts and Statement of Net Assets Transferred they are submitted to the Seller and the Seller's Auditors for review. The Purchaser shall provide the Seller and the Seller's Auditors with such information, access to the physical assets, accounts and records, employees and other facilities of the Business as they shall reasonably require to carry out such review and shall provide such information and explanations as the Seller or the Seller's Auditors may reasonably request during the course of their review of the draft Completion Accounts and Statement of Net Assets Transferred (including such information and access in the period during which the draft Completion Accounts and Statement of Net Assets Transferred are being prepared). For these purposes the Purchaser shall procure that the Purchaser's Auditors give to the Seller's Auditors access to their working papers under the appropriate "hold harmless" letters.
(3) The Seller's Auditors shall have up to 30 days to carry out their review of the draft Completion Accounts and Statement of Net Assets Transferred submitted to them under subclause (2) above and notify the Purchaser's Auditors of any item which they wish to dispute (together with, in reasonable detail, the basis of such dispute in relation to each such item) and, if the Seller's Auditors fail to notify the Purchaser's Auditors in writing of any disputed matter relating to the draft Completion Accounts or Statement of Net Assets Transferred within such 30 day period, the draft Completion Accounts and Statement of Net Assets Transferred submitted to the Seller's Auditors under subclause (2) above shall be final and binding on the parties as the Completion Accounts and the Statement in the format set out in part 2 of schedule 7 (the “Statement”)Net Assets Transferred, on the basis of the accounting policies and procedures set out in schedule 8 and deliver them to the Seller within 40 Business Days of Completionrespectively.
6.2 The Seller shall notify (4) If the Buyer in writing within 20 Business Days of receipt of such draft Completion Accounts Seller's Auditors and the Statement whether or Purchaser's Auditors are not it accepts able to agree any matter on the draft Completion Accounts and or Statement for the purposes of this agreement.
6.3 If Net Assets Transferred disputed in accordance with subclause (3) above they shall specify in writing to the Seller notifies and the Buyer that it does not accept such draft Completion Accounts Purchaser the matter(s) in dispute which in default of any agreement within seven days between the Seller and Statementthe Purchaser shall be determined by:
(a) it shall, at such firm of chartered accountants as the same time as it notifies the Buyer that it does not accept such draft Completion Accounts and Statement, set out parties may agree in such notice in writing its reasons in reasonable detail for such non-acceptance and specify the adjustments which, in its opinion, should be made to the draft Completion Accounts and the Statement in order to comply with the requirements of this agreementwriting; andor
(b) failing agreement on the parties shall use all reasonable endeavours to:
(i) meet and discuss the objections identity of the Seller, and
(ii) try to reach agreement upon firm of chartered accountants within a further seven days from the adjustments (if any) required to be made to the draft Completion Accounts and the Statement, in each case, within 15 Business Days expiry of the Seller’s notice period of non-acceptance pursuant to clause 6.2 (or such other time as the Parties may agree in writing).
6.4 If the Seller is satisfied with the draft Completion Accounts and the Statement (either as originally submitted or after adjustments agreed between the Seller and the Buyer) or if the Seller fails to notify the Buyer of its non-acceptance of the draft Completion Accounts and the Statement within the 15 Business Day period seven days referred to in clause 6.2above, then the draft Completion Accounts and the Statement (incorporating any agreed adjustments) shall constitute the Completion Accounts and the Statement such firm of chartered accountants as may be appointed for the purposes of this agreement.
6.5 If the Seller and the Buyer do not reach agreement within the 15 Business Day period referred to in clause 6.3(b) (or such other time as the Parties may agree in writing) then the matters in dispute (and only those) shall be referred, purpose on the application of either the Seller or the Buyer, for determination by an independent firm of internationally recognised chartered accountants to be agreed upon by the Seller and the Buyer or, failing agreement, to be selected, on the application of either the Seller or the Buyer, Purchaser by the President for the time being of the Institute of Chartered Accountants in England and Wales or his duly Wales.
(5) The accountants appointed deputy under subclause (4) above (the “firm”). The "Accountants") shall act on the following provisions shall apply to such determinationbasis:
(a) the Buyer and/or the Buyer’s accountants Accountants shall act as experts and the Seller and/or the Seller’s accountants shall each promptly (and in any event within such time frame not as reasonably enables the firm to make its decision in accordance with the time frame set down in clause 6.5(b)) prepare and deliver to the firm a written statement on the matters in dispute (together with the relevant supporting documents)arbitrators;
(b) the firm their terms of reference shall be requested to give its decision determine an amount which represents the item or items in dispute, as notified to them in writing by either the Seller or the Purchaser within 15 Business Days (or by such later date as the firm determines) 28 days of the confirmation and acknowledgment by the firm of its appointment hereundertheir appointment;
(c) in giving such determination, the firm Seller and the Purchaser shall state what adjustments each provide the Accountants with all information which they reasonably require and the Accountants shall be entitled (if any) are necessary to the draft Completion Accounts extent they consider it appropriate) to base their opinion on such information and on the Statement in respect accounting and other records of the matters in dispute in order to comply with the requirements of this agreement and shall give its reasons thereforBusiness;
(d) the firm determination of the Accountants shall act (in the absence of manifest error) be conclusive; and
(e) their costs shall be borne equally as an expert between the Seller on the one hand and the Purchaser on the other.
(6) Upon agreement of the Completion Accounts and not the Statement of Net Assets Transferred between the Seller's Auditors and the Purchaser's Auditors (or, in the event of any dispute being determined pursuant to subclause (4) above, upon completion of such determination), the Completion Accounts and the Statement of Net Assets Transferred as an arbitrator) in making any such determination which so agreed or determined shall be final and binding on the Parties (in the absence of manifest error);parties.
(e7) each Party shall bear the costs and expenses Within five Business Days of all counsel and other advisers, witnesses and employees retained by it and the costs and the expenses agreement or determination of the firm shall be borne between the Seller and the Buyer in such proportions as the firm shall in its discretion determine or, in the absence of any such determination, equally between the Seller and the Buyer.
6.6 When the Seller and the Buyer reach (or pursuant to clause 6.4 are deemed to reach) agreement on the Completion Accounts and the Statement or when the Completion Accounts and the Statement are finally determined at any stage of Net Assets Transferred in accordance with this clause, if the procedures set out in this clause 6:amount of the Net Assets Transferred (as shown on the Statement of Net Assets Transferred) is more than (pound)24,796,000 (the "Estimated Net Assets Transferred") the Purchaser shall pay to the Seller an amount equal to the surplus and if the amount of the Net Assets Transferred (as shown on the Statement of Net Assets Transferred) is less than the amount of the Estimated Net Assets Transferred the Seller shall repay to the Purchaser an amount equal to the shortfall.
(a8) [Left blank intentionally]
(9) the Completion Accounts and the Statement as so agreed or determined shall be the Completion Accounts and the Statement for For the purposes of this agreement and clause "Net Assets Transferred" shall be final and binding on comprise the Parties; and
(b) aggregate of the Working Capital Amountfollowing assets, at the Debt and the Cash shall be as set out values reflected in the Statement.
6.7 Subject to any rule of law or any regulatory body or any provision of any contract or arrangement entered into prior to the date of this agreement to the contrary, the Seller shall procure that each member of the Sellers’ Group shall, and the Buyer shall procure that the Group shall, promptly provide each other, their respective advisers, the firm, the Buyer’s accountants and the Seller’s accountants with all information (in their respective possession or control) relating to the operations of the Group, including access at all reasonable times to all the Group’s employees, books, records, and other relevant information and all co-operation and assistance, as may in any such case be reasonably required toCompletion Accounts:
(a) enable the production of the Completion Accounts and the Statement; and
(b) enable the firm to determine the Completion Accounts and the Statement. The Seller and the Buyer hereby authorise each other, their respective advisers and the firm to take copies of all information which they have agreed to provide under this clause 6.7.
6.8 Subject to clause 6.5(e), the Seller and the Buyer shall each bear their own costs and expenses arising out of the preparation and review of the Completion Accounts and the Statement.
Appears in 1 contract
Completion Accounts. 6.1 7.1 The Buyer Purchaser shall procure that the Group prepares drafts as soon as possible, and in any event within 60 calendar days of the Completion Accounts and Date a draft Completion Balance Sheet (having the Statement same line items as the balance sheet contained in the format Accounts for the Sale Group member to which such draft Completion Balance Sheet relates and by way of example only, an illustrative calculation is set out in part 2 Appendix I) in respect of schedule 7 each of SCCL and UK OpCo (such Completion Balance Sheets together the “StatementDraft Completion Balance Sheets”)) are prepared and delivered to the Seller. Each Draft Completion Balance Sheet shall include a draft statement of Net Working Capital for the company to which such Completion Balance Sheet relates. The Draft Completion Balance Sheet for SCCL shall specify the Purchaser’s calculation of the SCCL Intergroup Debt. The Purchaser shall prepare the Draft Completion Balance Sheets in accordance with the Accounting Principles.
7.2 The Seller and the Seller’s Auditors shall be entitled to review the Draft Completion Balance Sheets for a period of 60 calendar days following receipt from the Purchaser.
7.3 The Purchaser shall provide the Seller and the Seller’s Auditors with such information as the Seller and the Seller’s Auditors shall reasonably require or shall procure that such information is provided to the Seller and the Seller’s Auditors and allow the Seller and the Seller’s Auditors access to each member of the Sale Group and its books and records, its employees and advisers (at reasonable times and upon reasonable notice and subject to the Seller agreeing in favour of the Purchaser to keep all confidential information disclosed to it in accordance with this clause 7.3 confidential on the basis of the accounting policies and procedures terms as set out in schedule 8 clause 21), and deliver them shall use its reasonable efforts to procure access to the Seller within 40 Business Days of Completion.
6.2 The Seller shall notify Purchaser’s Auditors (if retained) and their working papers (or, if the Buyer in writing within 20 Business Days of receipt of such draft Completion Accounts and the Statement whether or Purchaser’s Auditors are not it accepts the draft Completion Accounts and Statement retained for the purposes of this agreementpreparing the draft Completion Balance Sheet, the Purchaser’s own working papers or equivalent) in each case insofar as is reasonably required for the analysis and verification of the Draft Completion Balance Sheets (including the draft statements of Net Working Capital contained therein).
6.3 7.4 At or before the end of the period of 60 calendar days referred to in clause 7.2, the Seller shall either:
7.4.1 notify the Purchaser that it accepts each Draft Completion Balance Sheet in its entirety, in which case the Draft Completion Balance Sheets shall constitute the Completion Balance Sheets (and the amount of the Net Working Capital shall be the amount set out in the draft Net Working Capital statements contained therein) and such Draft Completion Balance Sheets shall be final and binding on the Seller and the Purchaser; or
7.4.2 deliver to the Purchaser written notice of those items and, where practicable, the amount in each Draft Completion Balance Sheet or draft statement of Net Working Capital, as appropriate, which it disputes, in which case only those items or amounts identified by the Seller (the “Disputed Items”) shall be in dispute and shall be agreed or determined in accordance with clause 7.5.
7.5 If the Seller notifies delivers a notice under clause 7.4.2 then the Buyer that it does not accept such draft Completion Accounts and Statement:
(a) it shall, at the same time as it notifies the Buyer that it does not accept such draft Completion Accounts and Statement, set out in such notice in writing its reasons in reasonable detail for such non-acceptance and specify the adjustments which, in its opinion, should be made to the draft Completion Accounts Seller and the Statement in order to comply with the requirements of this agreement; and
(b) the parties Purchaser shall use all their respective reasonable endeavours to:
(i) meet and discuss to agree the objections of the SellerDisputed Items within 30 calendar days, and
(ii) try to reach agreement upon the adjustments (if any) required to be made to the draft Completion Accounts and the Statement, in each case, within 15 Business Days of the Seller’s notice of non-acceptance pursuant to clause 6.2 (or such other time longer period as the Parties may agree in writing).
6.4 If the Seller is satisfied with the draft Completion Accounts and the Statement (either as originally submitted or after adjustments be agreed between them. Any Disputed Items agreed between the Seller and the Buyer) or if Purchaser within that 30 calendar day period shall be reflected in amendments to the Seller fails to notify Draft Completion Balance Sheets. At the Buyer end of its non-acceptance of the draft Completion Accounts and the Statement within the 15 Business Day period referred to in clause 6.2that 30 calendar day period, then the draft Completion Accounts and the Statement (incorporating any those Disputed Items which have not been agreed adjustments) shall constitute the Completion Accounts and the Statement for the purposes of this agreement.
6.5 If between the Seller and the Buyer do not reach agreement within the 15 Business Day period referred to in clause 6.3(bPurchaser (if any) (or such other time as the Parties may agree in writing) then the matters in dispute (and only those“Unresolved Disputed Items”) shall be referredreferred for final binding determination to such firm of independent accountants of international standing (the “Expert”) as the Seller and the Purchaser may agree or, on in the application absence of agreement within 10 Business Days following the expiry of such 30 day period, or longer period as agreed between the Seller and the Purchaser, as may be selected at the request of either the Seller or the Buyer, for determination by an independent firm of internationally recognised chartered accountants to be agreed upon by the Seller and the Buyer or, failing agreement, to be selected, on the application of either the Seller or the Buyer, Purchaser by the President for the time being of the Institute of Chartered Accountants in England and Wales or Wales, with instructions that the Expert render his duly appointed deputy decision on the Unresolved Disputed Items (and any matters specifically relating thereto) and notify it to the “firm”). The following provisions shall apply to such determination:
(a) the Buyer and/or the Buyer’s accountants Seller and the Purchaser within 30 days of the Expert accepting such referral. In each case, the Expert so selected (either by agreement between the Seller and/or and the Seller’s accountants Purchaser or otherwise in accordance with this clause 7.5) shall each promptly (act as expert and not as arbitrator and the Unresolved Disputed Items in any event within such time frame as reasonably enables a Draft Completion Balance Sheet will be determined by the firm to make its decision Expert in accordance with the time frame set down in clause 6.5(b)) prepare Accounting Principles and deliver such adjustments as are required to be made as a result of the Expert’s determination of such Unresolved Disputed Items shall be made to the firm a written statement on Draft Completion Balance Sheet in which such Unresolved Disputed Items appear or to which such Unresolved Disputed Items relate which shall then constitute the matters in dispute Completion Balance Sheet (together with and the relevant supporting documents);
(b) amount of the firm Net Working Capital shall be requested to give its decision within 15 Business Days (or by such later date the amount set out in the statement of Net Working Capital as the firm determinesso adjusted) of the confirmation and acknowledgment by the firm of its appointment hereunder;
(c) in giving such determination, the firm shall state what adjustments (if any) are necessary to the draft Completion Accounts and the Statement in respect of the matters in dispute in order to comply with the requirements of this agreement and shall give its reasons therefor;
(d) the firm shall act as an expert (and not as an arbitrator) in making any such determination which shall be final and binding on the Parties (in the absence of manifest error);
(e) each Party shall bear the costs and expenses of all counsel and other advisers, witnesses and employees retained by it and the costs and the expenses of the firm shall be borne between the Seller and the Buyer in such proportions as the firm shall in its discretion determine or, in the absence of any such determination, equally between the Seller and the Buyer.
6.6 When the Seller and the Buyer reach (or pursuant to clause 6.4 are deemed to reach) agreement on the Completion Accounts and the Statement or when the Completion Accounts and the Statement are finally determined at any stage in accordance with the procedures set out in this clause 6:
(a) the Completion Accounts and the Statement as so agreed or determined shall be the Completion Accounts and the Statement for the purposes of this agreement and shall be final and binding on the Parties; and
(b) the Working Capital Amount, the Debt and the Cash shall be as set out in the Statement.
6.7 Subject to any rule of law or any regulatory body or any provision of any contract or arrangement entered into prior to the date of this agreement to the contrary, the Seller shall procure that each member of the Sellers’ Group shall, and the Buyer shall procure that the Group shall, promptly provide each other, their respective advisers, the firm, the Buyer’s accountants and the Seller’s accountants with all information (in their respective possession or control) relating to the operations of the Group, including access at all reasonable times to all the Group’s employees, books, records, and other relevant information and all co-operation and assistance, as may in any such case be reasonably required to:
(a) enable the production of the Completion Accounts and the Statement; and
(b) enable the firm to determine the Completion Accounts and the Statement. The Seller and the Buyer hereby authorise each other, their respective advisers and the firm to take copies of all information which they have agreed to provide under this clause 6.7.
6.8 Subject to clause 6.5(e), the Seller and the Buyer shall each bear their own costs and expenses arising out of the preparation and review of the Completion Accounts and the Statement.the
Appears in 1 contract
Samples: Share Sale and Purchase Agreement (International Power PLC)
Completion Accounts. 6.1 2.1 The Buyer Sellers (up to completion) and the Purchaser (after Completion) shall procure that the Group prepares drafts finalised accounts of the Completion Accounts Companies for the year ended 31 December 2004 are prepared and the Statement in the format set out in part 2 of schedule 7 (the “Statement”), on the basis of the accounting policies and procedures set out in schedule 8 and deliver them to the Seller within 40 Business Days of Completionaudited as soon as practical.
6.2 2.2 The Seller Purchaser shall notify the Buyer procure that as soon as possible, and in writing any event within 20 Business Days of receipt the audited financials of such draft Completion Accounts and the Statement whether or not Companies being signed off by the relevant statutory auditors, it accepts the draft Completion Accounts and Statement for the purposes of this agreement.
6.3 If the Seller notifies the Buyer that it does not accept such draft Completion Accounts and Statement:
(a) it shall, at the same time as it notifies the Buyer that it does not accept such draft Completion Accounts and Statement, set out in such notice in writing its reasons in reasonable detail for such non-acceptance and specify the adjustments which, in its opinion, should be made shall deliver to the Sellers a draft consolidated Completion Accounts and the Statement in order to comply with the requirements of this agreement; and
(b) the parties shall use all reasonable endeavours to:
(i) meet and discuss the objections of the Seller, and
(ii) try to reach agreement upon the adjustments (if any) required to be made to the draft Completion Accounts and the Statement, in each case, within 15 Business Days of the Seller’s notice of non-acceptance pursuant to clause 6.2 (or such other time as the Parties may agree in writing).
6.4 If the Seller is satisfied with the draft Completion Accounts and the Statement (either as originally submitted or after adjustments agreed between the Seller and the Buyer) or if the Seller fails to notify the Buyer of its non-acceptance of the draft Completion Accounts and the Statement within the 15 Business Day period referred to in clause 6.2, then the draft Completion Accounts and the Statement (incorporating any agreed adjustments) shall constitute the Completion Accounts and the Statement for the purposes of this agreement.
6.5 If the Seller and the Buyer do not reach agreement within the 15 Business Day period referred to in clause 6.3(b) (or such other time as the Parties may agree in writing) then the matters in dispute (and only those) shall be referred, on the application of either the Seller or the Buyer, for determination by an independent firm of internationally recognised chartered accountants to be agreed upon by the Seller and the Buyer or, failing agreement, to be selected, on the application of either the Seller or the Buyer, by the President for the time being of the Institute of Chartered Accountants in England and Wales or his duly appointed deputy Balance Sheet (the “firm”). The following provisions shall apply to such determination:
(aDraft Completion Balance Sheet") of the Buyer and/or the Buyer’s accountants Group and the Seller and/or the Seller’s accountants shall each promptly (and in any event within such time frame as reasonably enables the firm to make its decision a Draft Statement of EBITDA will be prepared by it in accordance with the time frame set down in clause 6.5(b)) prepare and deliver to the firm Accounting Principles. The Purchaser shall instruct a written statement on the matters in dispute (together with the relevant supporting documents);
(b) the firm shall be requested to give its decision within 15 Business Days (or by such later date as the firm determines) of the confirmation and acknowledgment by the firm of its appointment hereunder;
(c) in giving such determination, the firm shall state what adjustments (if any) are necessary independent accountants of international repute to review the draft Completion Accounts Balance Sheet and then issue a certificate with the Draft Completion Balance Sheet and Draft Statement of EBITDA confirming that the Draft Completion Balance Sheet and the Draft Statement in respect of the matters in dispute in order to comply with the requirements of this agreement and shall give its reasons therefor;
(d) the firm shall act as an expert (and not as an arbitrator) in making any such determination which shall be final and binding on the Parties (in the absence of manifest error);
(e) each Party shall bear the costs and expenses of all counsel and other advisers, witnesses and employees retained by it and the costs and the expenses of the firm shall be borne between the Seller and the Buyer in such proportions as the firm shall in its discretion determine or, in the absence of any such determination, equally between the Seller and the Buyer.
6.6 When the Seller and the Buyer reach (or pursuant to clause 6.4 are deemed to reach) agreement on the Completion Accounts and the Statement or when the Completion Accounts and the Statement are finally determined at any stage EBITDA has been prepared substantially in accordance with the procedures set out in this clause 6:Accounting Principles.
(a) 2.3 The Sellers and their accountants shall be entitled to review the Draft Completion Accounts Balance Sheet and the Draft Statement of EBITDA for a period of 30 Business Days following receipt from the Purchaser.
2.4 The Purchasers shall provide or procure the provision of, to the Sellers and their accountants such information as so agreed or determined the Sellers and their accountants shall be reasonably require and allow the Sellers and their accountants access to the Companies and their books and records (at reasonable times and upon reasonable notice), and procure access to the auditors, including, without limitation, access to the auditors’ working papers in each case insofar as is reasonably required for the analysis and verification of the Draft Completion Accounts Balance Sheet and the Draft Statement for the purposes of this agreement and shall be final and binding on the Parties; and
(b) the Working Capital Amount, the Debt and the Cash shall be as set out in the StatementEBITDA.
6.7 Subject to any rule of law or any regulatory body or any provision of any contract or arrangement entered into prior to the date of this agreement to the contrary, the Seller shall procure that each member of the Sellers’ Group shall, and the Buyer shall procure that the Group shall, promptly provide each other, their respective advisers, the firm, the Buyer’s accountants and the Seller’s accountants with all information (in their respective possession or control) relating to the operations of the Group, including access at all reasonable times to all the Group’s employees, books, records, and other relevant information and all co-operation and assistance, as may in any such case be reasonably required to:
(a) enable the production of the Completion Accounts and the Statement; and
(b) enable the firm to determine the Completion Accounts and the Statement. The Seller and the Buyer hereby authorise each other, their respective advisers and the firm to take copies of all information which they have agreed to provide under this clause 6.7.
6.8 Subject to clause 6.5(e), the Seller and the Buyer shall each bear their own costs and expenses arising out of the preparation and review of the Completion Accounts and the Statement.
Appears in 1 contract
Completion Accounts. 6.1 7.1 The Buyer provisions of this clause 7 shall have effect in respect of the Completion Accounts.
7.2 The Purchaser shall procure that the Group prepares drafts Company shall prepare a draft of the Completion Accounts as soon as practicable following Completion and in any event within 45 days from Completion. For the Statement in avoidance of doubt, and without prejudice to the format set out in part 2 of schedule 7 (the “Statement”), on the basis obligations of the accounting policies and procedures set out in schedule 8 and deliver them Purchaser under this clause 7.2, the directors of the Company shall be responsible for the preparation of the Completion Accounts although they or the Company shall not be personally liable or owe any duty of care to the Seller within 40 Business Days Vendor or the Purchaser in respect of Completionthe same. Once prepared, the Purchaser shall procure that the draft Completion Accounts shall forthwith be delivered to the Trustees, the Vendor and to the Vendor's Accountants, Messrs. Ernst & Young.
6.2 7.3 The Seller Vendor shall notify forthwith instruct Messrs. Ernst & Young to undertake a review of the Buyer in writing draft Completion Accounts within 20 Business Days of 30 days from receipt of the draft Completion Accounts. If Ernst & Young consider that such draft Completion Accounts have been prepared in accordance with the provisions of this Agreement they shall notify the Vendor and the Statement whether or not it accepts Purchaser of such fact within the draft 30 day period, the Purchaser shall procure that such Completion Accounts are approved by and Statement for signed on behalf of the purposes board of this agreement.
6.3 the Company as soon as practicable thereafter. If the Seller notifies the Buyer Ernst & Young do not consider that it does not accept such draft Completion Accounts and Statement:
(a) it shallhave been prepared in accordance with the provisions of this Agreement, at they shall notify the same time as it notifies Company within such 30 day period of the Buyer that it does not accept such draft Completion Accounts and Statement, set out in such notice in writing its reasons in reasonable detail for such non-acceptance therefor and specify the adjustments which, in its their opinion, should be made to the draft Completion Accounts and the Statement in order to comply with the requirements of this agreement; and
(b) Agreement and the parties shall use all reasonable endeavours to:
(iin consultation with Messrs Ernst & Young and the Purchaser's Accountants) meet and discuss the objections of the Seller, and
(ii) try to Messrs Ernst & Young and reach agreement upon the adjustments (if any) required to be made to the draft Completion Accounts and the Statement, in each case, within 15 Business Days of the Seller’s notice of non-acceptance pursuant to clause 6.2 (or such other time as the Parties may agree in writing)Accounts.
6.4 7.4 If the Seller is Messrs Ernst & Young are satisfied with the draft Completion Accounts and the Statement (either as originally submitted or after adjustments agreed between the Seller and the Buyerhave been agreed) or if the Seller fails Messrs Ernst & Young fail to notify the Buyer Purchaser of its non-their non- acceptance of the draft Completion Accounts and the Statement within the 15 Business Day 30 day period referred to in clause 6.27.3, then the draft Completion Accounts and the Statement (incorporating any agreed adjustments) shall constitute the Completion Accounts for the purpose of this Agreement. The Purchaser shall procure that such Completion Accounts are approved by and signed on behalf of the board of the Company as soon as practicable thereafter.
7.5 If the Vendor and the Statement for the purposes of this agreement.
6.5 If the Seller and the Buyer Purchaser do not reach agreement within the 15 Business Day period referred to in days of Messrs. Ernst & Young's notice of non-acceptance under clause 6.3(b) (or such other time as the Parties may agree in writing) 7.3, then the matters in dispute (and only those) shall be referred, on the application of either the Seller or the Buyerparty, for determination by an independent firm of internationally recognised recognized chartered accountants to be agreed upon by the Seller Vendor and the Buyer Purchaser or, failing agreementagreement within a further period of 15 days, to be selected, on the application of either the Seller or the Buyer, selected by the President for the time being of the Institute of Chartered Accountants in England and Wales or his duly appointed deputy (the “firm”)Wales. The following provisions terms of reference shall apply to such determinationapply:
(a) the Buyer and/or the Buyer’s accountants and the Seller and/or the Seller’s accountants shall each promptly (and in any event within such time frame as reasonably enables the firm to make its decision in accordance with the time frame set down in clause 6.5(b)) prepare and deliver to the firm a written statement on the matters in dispute (together with the relevant supporting documents);
(b) the firm shall be requested to give its decision within 15 Business Days (or by such later date as the firm determines) of the confirmation and acknowledgment by the firm of its appointment hereunder;
(c) in giving such determination, the firm shall state what adjustments (if any) are necessary to the draft Completion Accounts and the Statement in respect of the matters in dispute in order to comply with the requirements of this agreement and shall give its reasons therefor;
(d) the firm shall act as an expert (and not as an arbitrator) in making any such determination which shall be final and binding on the Parties (in the absence of manifest error);
(e) each Party shall bear the costs and expenses of all counsel and other advisers, witnesses and employees retained by it and the costs and the expenses of the firm shall be borne between the Seller and the Buyer in such proportions as the firm shall in its discretion determine or, in the absence of any such determination, equally between the Seller and the Buyer.
6.6 When the Seller and the Buyer reach (or pursuant to clause 6.4 are deemed to reach) agreement on the Completion Accounts and the Statement or when the Completion Accounts and the Statement are finally determined at any stage in accordance with the procedures set out in this clause 6:
(a) the Completion Accounts and the Statement as so agreed or determined shall be the Completion Accounts and the Statement for the purposes of this agreement and shall be final and binding on the Parties; and
(b) the Working Capital Amount, the Debt and the Cash shall be as set out in the Statement.
6.7 Subject to any rule of law or any regulatory body or any provision of any contract or arrangement entered into prior to the date of this agreement to the contrary, the Seller shall procure that each member of the Sellers’ Group shall, and the Buyer shall procure that the Group shall, promptly provide each other, their respective advisers, the firm, the Buyer’s accountants and the Seller’s accountants with all information (in their respective possession or control) relating to the operations of the Group, including access at all reasonable times to all the Group’s employees, books, records, and other relevant information and all co-operation and assistance, as may in any such case be reasonably required to:
(a) enable the production of the Completion Accounts and the Statement; and
(b) enable the firm to determine the Completion Accounts and the Statement. The Seller and the Buyer hereby authorise each other, their respective advisers and the firm to take copies of all information which they have agreed to provide under this clause 6.7.
6.8 Subject to clause 6.5(e), the Seller and the Buyer shall each bear their own costs and expenses arising out of the preparation and review of the Completion Accounts and the Statement.
Appears in 1 contract
Samples: Agreement for the Sale and Purchase of Shares (Lasalle Partners Inc)
Completion Accounts. 6.1 The Buyer shall procure that 4.1.1 As soon as practicable and in any event within 45 days of Completion the Group prepares drafts Vendors' Accountants (at the cost of the Vendor or (so far as may be lawful so to do) as a cost accrued to the Company) will prepare a balance sheet of the Company as at the date of Completion and a profit and loss account of the Company for the period from 1 November 1990 to the close of business on the day before the date of Completion ("the Completion Accounts") and a certificate of the Net Asset Value of the Company as at Completion (the "NAV Certificate") using the same accounting policies as used in the Accounts and deliver the Completion Accounts and the Statement in NAV Certificate to the format set Purchaser.
4.1.2 At its election and at its own cost the Purchaser will either carry out in part 2 of schedule 7 (its own audit or review the “Statement”), on the basis work of the accounting policies Vendors' Accountants and procedures set out in schedule 8 and deliver them to within 45 days of delivery of the Seller within 40 Business Days of Completion.
6.2 The Seller shall NAV Certificate notify the Buyer in writing within 20 Business Days of receipt of such draft Completion Accounts and the Statement Vendors as to whether or not it accepts approves the draft Completion Accounts and Statement for the purposes of this agreementNAV Certificate.
6.3 If 4.1.3 In the Seller notifies event that the Buyer that it does Purchaser shall not accept within such draft Completion Accounts and Statement:
(a) it shall, at period of 45 days agree the same time as it notifies Net Asset Value then the Buyer that it does not accept such draft Completion Accounts and Statement, set out in such notice in writing its reasons in reasonable detail for such non-acceptance and specify the adjustments which, in its opinion, should be made to the draft Completion Accounts Vendors and the Statement in order Purchaser shall together attempt to comply resolve any such written queries and observations that have been raised by the Purchaser with the requirements of this agreement; and
(b) the parties shall use all reasonable endeavours to:
(i) meet and discuss the objections of the Seller, and
(ii) try to reach agreement upon the adjustments (if any) required to be made to the draft Completion Accounts and the Statement, in each case, within 15 Business Days of the Seller’s notice of non-acceptance pursuant to clause 6.2 (or regard thereto. If no such other time as the Parties may agree in writing).
6.4 If the Seller is satisfied with the draft Completion Accounts and the Statement (either as originally submitted or after adjustments resolution has been agreed between the Seller and parties within a further period of 14 days of notification to the Buyer) or if Vendors by the Seller fails to notify Purchaser, the Buyer of its non-acceptance of the draft Completion Accounts and the Statement within the 15 Business Day period matter shall be referred to in clause 6.2, then the draft Completion Accounts and the Statement (incorporating any agreed adjustments) shall constitute the Completion Accounts and the Statement for the purposes of this agreement.
6.5 If the Seller and the Buyer do not reach agreement within the 15 Business Day period referred to in clause 6.3(b) (or such other time as the Parties may agree in writing) then the matters in dispute (and only those) shall be referred, on the application of either the Seller or the Buyer, for determination by an independent firm of internationally recognised chartered accountants to as may be agreed upon appointed by agreement between the Seller Vendors and the Buyer Purchaser or, failing agreement, to be selected, on the application of either the Seller or the Buyersuch agreement within 7 days, by the President for the time being of the Institute of Chartered Accountants in England and Wales or his duly appointed deputy (for the “firm”)time being. The following provisions shall apply to decision of such determination:
chartered accountants (a) the Buyer and/or the Buyer’s accountants and the Seller and/or the Seller’s accountants shall each promptly (and in any event within such time frame acting as reasonably enables the firm to make its decision in accordance with the time frame set down in clause 6.5(b)) prepare and deliver to the firm a written statement on the matters in dispute (together with the relevant supporting documents);
(b) the firm shall be requested to give its decision within 15 Business Days (or by such later date as the firm determines) of the confirmation and acknowledgment by the firm of its appointment hereunder;
(c) in giving such determination, the firm shall state what adjustments (if any) are necessary to the draft Completion Accounts and the Statement in respect of the matters in dispute in order to comply with the requirements of this agreement and shall give its reasons therefor;
(d) the firm shall act as an expert (experts and not as an arbitratorarbitrators) shall, in making any such determination which shall the a bsence of manifest error, be final and binding on upon the Parties (parties and shall be incorporated in or otherwise dealt with in the absence NAV Certificate. The fee of manifest error);
(e) each Party shall bear the costs and expenses of all counsel and other advisers, witnesses and employees retained by it and the costs and the expenses of the firm such chartered accountants shall be borne between the Seller and the Buyer in as such proportions as the independent firm shall in its discretion determine determine, or, in the absence of any such determination, equally between by the Seller Vendors and the BuyerPurchaser.
6.6 When 4.1.4 In the Seller and the Buyer reach (or pursuant to clause 6.4 are deemed to reach) agreement on the Completion Accounts and the Statement or when the Completion Accounts and the Statement are finally determined at any stage in accordance with the procedures set out in this clause 6:
(a) the Completion Accounts and the Statement as so agreed or determined shall be the Completion Accounts and the Statement for the purposes of this agreement and shall be final and binding on the Parties; and
(b) the Working Capital Amount, the Debt and the Cash shall be as set out in the Statement.
6.7 Subject to any rule of law or any regulatory body or any provision of any contract or arrangement entered into prior to the date of this agreement to the contrary, the Seller shall procure that each member of the Sellers’ Group shall, and the Buyer shall procure event that the Group shall, promptly provide each other, their respective advisers, the firm, the Buyer’s accountants and the Seller’s accountants with all information (Purchaser does not raise any queries or observations in their respective possession or control) relating to the operations of the Group, including access at all reasonable times to all the Group’s employees, books, records, and other relevant information and all co-operation and assistance, as may in any such case be reasonably required to:
(a) enable the production respect of the Completion Accounts and the Statement; and
(b) enable the firm N.A.V. Certificate within 45 days of their delivery to determine it or if they shall agree the Completion Accounts and the Statement. The Seller N.A.V. Certificate then (and in either such case) the Net Asset Value shall be as stated in the N.A.V. Certificate and the Buyer hereby authorise each other, their respective advisers and the firm Purchaser shall be deemed to take copies of all information which they have agreed to provide under for all purposes of this clause 6.7.
6.8 Subject to clause 6.5(e), Agreement the Seller and the Buyer shall each bear their own costs and expenses arising out Net Asset Value of the preparation and review of Company
4.1.5 IT IS HEREBY AGREED tht in preparing the Completion Accounts and the StatementN.A.V. Certificate, the Vendors' Accountants shall not be required to re-circulate any of the debtors of the Company in respect of debts in respect of which contact was made in the preparation of the Accounts but the Purchasers may, if they so decide and to the extent that time permits in accordance with Clause 4.1.2, re-circulate such debtors in carrying out their review under such Clause.
Appears in 1 contract
Completion Accounts. 6.1 The Buyer RoweCom and Xxxxxx shall use all reasonable endeavours to procure that that, promptly after Completion, Completion Accounts together with the Group prepares drafts statement (the "Statement") of the Working Capital Amount, as at Completion, are prepared in accordance with the provisions of this clause 6.
6.2 The Completion Accounts and the Statement in the format set out in part 2 of schedule 7 (the “Statement”), shall be prepared on the basis of the accounting policies and procedures set out in schedule 8 9.
6.3 Xxxxxx shall arrange for the Completion Accounts and deliver them the Statement to be prepared by the Seller Group's employees with a view to such draft Completion Accounts being delivered to RoweCom within 40 Business Days of Completion.
6.2 The Seller 6.4 RoweCom shall notify the Buyer in writing Xxxxxx within 20 Business Days of receipt of such draft Completion Accounts and the Statement whether or not it accepts the draft Completion Accounts and Statement them for the purposes of this agreement.
6.3 6.5 If the Seller RoweCom notifies the Buyer Xxxxxx that it does not accept such draft Completion Accounts and Statement:Statement:-
(a) it shall, at the same time as it notifies the Buyer that it does not accept such draft Completion Accounts and Statementtime, set out in such a notice in writing its reasons in reasonable detail full for such non-acceptance and specify the adjustments which, in its opinion, should be made to the draft Completion Accounts and the Statement in order to comply with the requirements of this agreementagreement and deliver a copy of such notice to Xxxxxx; and
(b) the parties shall use all reasonable endeavours to:
(i) to meet and discuss the objections of the Seller, and
(ii) try RoweCom and to reach agreement upon the adjustments (if any) required to be made to the draft Completion Accounts and the Statement, in each case, within 15 Business Days of the Seller’s notice of non-acceptance pursuant to clause 6.2 (or such other time as the Parties may agree in writing).
6.4 6.6 If the Seller RoweCom is satisfied with the draft Completion Accounts and the Statement (either as originally submitted or after adjustments agreed between the Seller Xxxxxx and the BuyerRoweCom) or if the Seller RoweCom fails to notify the Buyer Xxxxxx of its non-acceptance of the draft Completion Accounts and the Statement within the 15 20 Business Day period referred to in clause 6.26.4, then the draft Completion Accounts and the Statement (incorporating any agreed adjustments) shall constitute the Completion Accounts and the Statement for the purposes of this agreement.
6.5 6.7 If the Seller Xxxxxx and the Buyer RoweCom do not reach agreement within the 15 20 Business Day period referred Days of RoweCom's notice of non-acceptance pursuant to in clause 6.3(b) (or such other time as the Parties may agree in writing) 6.5 then the matters in dispute (and only those) shall be referred, on the application of either the Seller or the Buyerparty, for determination by an independent firm of internationally recognised chartered accountants to be agreed upon by the Seller Xxxxxx and the Buyer RoweCom or, failing agreement, to be selected, on the application of either the Seller Xxxxxx or the BuyerRoweCom, by the President for the time being of the Institute of Chartered Accountants in England and Wales or his duly appointed deputy (the “firm”)deputy. The following provisions shall apply to such determination:determination:-
(a) the Buyer RoweCom and/or the Buyer’s RoweCom's accountants and the Seller Xxxxxx and/or the Seller’s Xxxxxx'x accountants shall each promptly (and in any event within such time frame as reasonably enables the firm to make its decision in accordance with the time frame set down in clause 6.5(b)) prepare and deliver to the firm a written statement on the matters in dispute which (together with the relevant supporting documents)) shall be submitted to such independent firm for determination;
(b) the firm shall be requested to give its decision within 15 Business Days (or by such later date as the firm determines) of the confirmation and acknowledgment by the firm of its appointment hereunder;
(c) in giving such determination, the firm shall state what adjustments (if any) are necessary to the draft Completion Accounts and the Statement in respect of the matters in dispute in order to comply with the requirements of this agreement and shall give its reasons thereforagreement;
(dc) the any such firm shall act as an expert (and not as an arbitrator) in making any such determination which shall be final and binding on the Parties parties (in the absence of manifest error);; and
(ed) each Party party shall bear the costs and expenses of all counsel and other advisers, witnesses and employees retained by it and the costs and the expenses of the independent firm of accountants shall be borne between the Seller Xxxxxx and the Buyer RoweCom in such proportions as the firm shall in its discretion determine or, in the absence of any such determination, equally between the Seller Xxxxxx and the BuyerRoweCom.
6.6 6.8 When the Seller Xxxxxx and the Buyer RoweCom reach (or pursuant to clause 6.4 6.6 are deemed to reach) agreement on the Completion Accounts and the Statement or when the Completion Accounts and the Statement are finally determined at any stage in accordance with the procedures set out in this clause 6:6:-
(a) the Completion Accounts and the Statement as so agreed or determined shall be the Completion Accounts and the Statement for the purposes of this agreement and shall be final and binding on the Partiesparties; and
(b) the Working Capital Amount, the Debt and the Cash Amounts shall be as set out in the Statement.
6.7 6.9 Subject to any rule of law or any regulatory body or any provision of any contract or arrangement entered into prior to the date of this agreement to the contrary, the Seller Xxxxxx shall procure that each member of the Sellers’ Xxxxxx Group shall, and the Buyer RoweCom shall procure that each member of the Group shall, promptly provide each other, their respective advisers, the firm, independent firm of chartered accountants appointed pursuant to this clause 6 to determine the Buyer’s Completion Accounts and the Statement and RoweCom's accountants and the Seller’s Xxxxxx'x accountants with all information (in their respective possession or control) relating to the operations of the Xxxxxx Group and/or the Group, as the case may be, including access at all reasonable times to all the Group’s Xxxxxx Group and Group employees, books, books and records, and other relevant information and all co-operation and assistance, as may in any such case be reasonably required to:to:-
(a) enable the production of the Completion Accounts and the Statement; and
(b) enable the any independent firm of chartered accountants appointed pursuant to this clause 6 to determine the Completion Accounts any matters in dispute as referred to in clause 6.7. Xxxxxx and the Statement. The Seller and the Buyer RoweCom hereby authorise each other, their respective advisers and the independent firm of chartered accountants appointed pursuant to this clause 6 to take copies of all information which they have agreed to provide under this clause 6.76.9.
6.8 Subject 6.10 In relation to clause 6.5(eeach Working Capital Amount (in each case the payment being the "Final Working Capital Payment"), which is:-
(a) less than the Seller relative Estimated Working Capital Amount, the relevant Vendor shall pay and Xxxxxx shall procure the payment by the relevant Vendor, failing which Xxxxxx shall itself make a payment to the relevant Purchaser;
(b) more than the relative Estimated Working Capital Amount, the relevant Purchaser shall pay and RoweCom shall procure the payment by the relevant Purchaser, failing which RoweCom shall itself make a payment, to the relevant Vendor, of an amount equal to the difference between the relevant Working Capital Amount and the Buyer shall each bear their own costs and expenses arising out relevant Estimated Working Capital Amount, within seven Business Days of the preparation and review agreement or determination of the Completion Accounts (the "Final Working Capital Payment Date"), together with interest thereon at the Agreed Rate computed from the Completion Date to the date of actual payment thereof both dates exclusive on the basis of the actual number of days elapsed and a 365 day year. Any payment shall be by means of telegraphic transfer of funds to the accounts of the relevant Vendors or Purchasers as notified to Xxxxxx or RoweCom no later than five Business Days prior to Completion, as the case may require.
6.11 In the event that prior to the Final Working Capital Payment Date RoweCom shall have given notice to Xxxxxx of a claim or claims under the Warranties and/or the Indemnities and/or the Tax Deed then the following provisions shall at the sole option of RoweCom apply to the extent that any such claim or claims shall have been settled (in accordance with clause 6.12) but shall not have been paid by or on behalf of Xxxxxx prior to the Final Working Capital Payment Date, RoweCom shall be entitled to treat its obligations hereunder to satisfy the Final Working Capital Payment to Xxxxxx and the StatementVendors as being reduced pro tanto by the amount, to the extent settled (as to liability and quantum), of such claim or claims.
6.12 A claim shall be regarded as settled for the purposes of clause 6.11 if either:-
(a) Xxxxxx and RoweCom (or their respective solicitors) shall so agree in writing; or
(b) a court has awarded judgment against Xxxxxx in respect of the claim and no right of appeal lies in respect of such judgment or the parties are debarred whether by the passage of time or otherwise from exercising any such right of appeal.
6.13 For the avoidance of doubt nothing contained in clause 6.11 shall prejudice the right of RoweCom or the Purchasers to recover against Xxxxxx otherwise than pursuant to clause 6.10 or to make any claim against Xxxxxx under the Warranties and/or the Indemnities and/or the Tax Deed whether before or after the Final Working Capital Payment Date whether in accordance with the procedure specified in clause 6.10 or otherwise provided that neither RoweCom nor the Purchasers can recover more than once in respect of the same claim.
6.14 RoweCom shall use all reasonable endeavours to procure that, promptly after the expiry of the First Quarter, First Quarter Accounts together with the statement of First Quarter Profit Xxxxxx (xxx "Xxxxx Xxxxxxx Xxxxxxxxx") are prepared on the basis of the accounting policies and procedures set out in schedule 17. The provisions of clauses 6.2 to 6.9 (inclusive) and clauses 6.11 to 6.13 (inclusive) shall apply to this clause 6.14 mutatis mutandis in respect of the First Quarter Accounts except that:-
Appears in 1 contract
Samples: Agreement for the Sale and Purchase of the Subscription Business (Rowecom Inc)
Completion Accounts. 6.1 4.1 The Buyer shall procure that the Group prepares drafts of the Completion Accounts and the Statement in the format set out in part 2 of schedule 7 (the “Statement”), 6 on the basis of the accounting policies and procedures set out in schedule 8 therein and deliver them to the Seller within 40 30 Business Days of Completion.
6.2 4.2 The Seller shall notify the Buyer in writing within 20 30 Business Days of receipt of such draft Completion Accounts and the Statement whether or not it accepts the draft Completion Accounts and Statement for the purposes of this agreement.
6.3 4.3 If the Seller notifies the Buyer that it does not accept such draft Completion Accounts and Statement:
(a) it shall, at the same time as it notifies the Buyer that it does not accept such draft Completion Accounts and Statement, set out in such notice in writing its reasons in reasonable detail for such non-acceptance and specify the adjustments which, in its opinion, should be made to the draft Completion Accounts and the Statement in order to comply with the requirements of this agreement; and
(b) the parties shall use all reasonable endeavours to:
(i) meet and discuss the objections of the Seller, ; and
(ii) try to reach agreement upon the adjustments (if any) required to be made to the draft Completion Accounts and the Statement, Statement in each case, within 15 20 Business Days of the Seller’s notice of non-acceptance pursuant to clause 6.2 4.2 (or such other time as the Parties parties may agree in writing).
6.4 4.4 If the Seller is satisfied with the draft Completion Accounts and the Statement (either as originally submitted or after adjustments agreed between the Seller and the Buyer) or if the Seller fails to notify the Buyer of its non-acceptance of the draft Completion Accounts and the Statement within the 15 30 Business Day period referred to in clause 6.24.2, then the draft Completion Accounts and the Statement (incorporating any agreed adjustments) shall constitute the Completion Accounts and the Statement for the purposes of this agreement.
6.5 4.5 If the Seller and the Buyer do not reach agreement within the 15 20 Business Day period referred to in clause 6.3(b4.3(b) (or such other time as the Parties parties may agree in writing) then the matters in dispute (and in respect of which reasonable details have been provided by the Seller to the Buyer at the time that it notified the Buyer that it does not accept the Completion Accounts and the Statement in accordance with clause 4.3(a)(and only those) shall be referred, on the application of either the Seller or the Buyer, for determination by an independent firm of internationally recognised chartered accountants to be agreed upon by the Seller and the Buyer or, failing agreement, to be selected, on the application of either the Seller or the Buyer, by the President for the time being of the Institute of Chartered Accountants in England and Wales or his duly appointed deputy (the “firm”). The following provisions shall apply to such determination:
(a) the Buyer and/or the Buyer’s accountants and the Seller and/or the Seller’s accountants shall each promptly (and in any event within such time frame as reasonably enables the firm to make its decision in accordance with the time frame set down in clause 6.5(b4.5(b)) prepare and deliver to the firm a written statement on the matters in dispute (together with the relevant supporting documents);
(b) the firm shall be requested to give its decision within 15 20 Business Days (or by such later date as the firm determinesBuyer and the Seller agree in writing) of the confirmation and acknowledgment by the firm of its appointment hereunder;
(c) in giving such determination, the firm shall state what adjustments (if any) are necessary to the draft Completion Accounts and the Statement in respect of the matters in dispute in order to comply with the requirements of this agreement and shall give its reasons therefor;
(d) the firm shall act as an expert (and not as an arbitrator) in making any such determination which shall be final and binding on the Parties parties (in the absence of manifest error);
(e) each Party party shall bear the costs and expenses of all counsel and other advisers, witnesses and employees retained by it and the costs and the expenses of the firm shall be borne between the Seller and the Buyer in such proportions as the firm shall in its discretion determine or, in the absence of any such determination, equally between the Seller and the Buyer.
6.6 4.6 When the Seller and the Buyer reach (or pursuant to clause 6.4 4.4 are deemed to reach) agreement on the Completion Accounts and the Statement or when the Completion Accounts and the Statement are finally determined at any stage in accordance with the procedures set out in this clause 64:
(a) the Completion Accounts and the Statement as so agreed or determined shall be the Completion Accounts and the Statement for the purposes of this agreement and shall be final and binding on the Partiesparties; and
(b) the Working Capital Amount, the Debt Debt, the Cash, the Intra-Group Payables, the Intra-Group Receivables, the Liabilities and the Cash Completion Tax Figure shall be as set out in the Statement.
6.7 4.7 Subject to any rule of law or any regulatory body or any provision of any contract or arrangement entered into prior to the date of this agreement to the contrary, the Seller shall procure that each member of the Sellers’ Seller’s Group shall, and the Buyer shall procure that the Group shall, promptly provide each other, their respective advisers, the firm, the Buyer’s accountants and the Seller’s accountants with all information (in their respective possession or control) relating to the operations of the Seller’s Group and/or the Group, as the case may be, including access at all reasonable times to all the GroupSeller’s Group and Group employees, books, records, and other relevant information and all co-operation and assistance, as may in any such case be reasonably required to:
(a) enable the production of the Completion Accounts and the Statement; and
(b) enable the firm to determine the Completion Accounts and the Statement. The Seller and the Buyer hereby authorise each other, their respective advisers and the firm to take copies of all information which they have agreed to provide under this clause 6.74.7.
6.8 4.8 Subject to clause 6.5(e4.5(e), the Seller and the Buyer shall each bear their own costs and expenses arising out of the preparation and review of the Completion Accounts and the Statement.
Appears in 1 contract
Samples: Share Purchase Agreement (TRM Corp)
Completion Accounts. 6.1 8.1 The Seller undertakes to the Buyer shall to procure that accounts of the Group prepares drafts of Company for the Completion Accounts and Period shall be prepared in accordance with the Statement in the format set out in part 2 of schedule 7 (the “Statement”), on the basis of the accounting policies and procedures provisions set out in schedule 8 and otherwise in accordance with the accounting policies of the Company and otherwise in accordance with all relevant statutes and generally accepted accounting practices and principles, SSAPs and Financial Reporting Standards as soon as possible after, and in any event no later than 14 days after the date of Completion. In preparing the profit and loss account, balance sheet and notes no account shall be taken of an event taking place after Completion.
8.2 All amounts and results contained in the accounts for the Completion Accounts Period (including, without limitation, the relevant amount of Net Assets) shall be calculated and denominated in US dollars, but to the extent that any such amounts and/or results are denominated in pounds sterling ((British Pound)),for the purposes of calculating the Net Assets such amounts and/or results shall be converted into US dollars at the Dollar Exchange Rate.
8.3 Immediately following the preparation of the Company's accounts, the Seller shall deliver copies of them to the Seller within 40 Buyer together with a schedule ("Schedule") showing the calculation of Net Assets for the Completion Accounts Period.
8.4 The Buyer shall have 10 Business Days from the date of Completiondelivery to it of the Company's accounts to review the same (the "Review Period").
6.2 8.5 So as to enable the Buyer to verify that the Company's accounts and Schedule have been prepared in accordance with the provisions of this agreement the Seller agrees to give the Buyer(and any advisers appointed by the Buyer for this purpose (the "Buyer's Accountants")) full access to and explanations of any of the working papers of the Seller and to any records and documents the Buyer (and the Buyer's Accountants) may from time to time reasonably request.
8.6 The Seller Buyer shall on or before the expiry of the Review Period notify the Buyer Seller in writing within 20 Business Days that it agrees or disagrees with the Schedule. For the avoidance of receipt of such draft Completion Accounts and doubt, in the Statement whether or event that the Buyer does not serve any notice on the Seller in accordance with this clause 8.6, it accepts shall be deemed to agree with the draft Completion Accounts and Statement for the purposes of this agreementSchedule.
6.3 8.7 If the Seller Buyer notifies the Buyer Seller in accordance with clause 8.6 that it does not accept such draft Completion Accounts and Statement:
(a) it shall, at the same time as it notifies the Buyer that it does not accept such draft Completion Accounts and Statement, set out in such notice in writing its reasons in reasonable detail for such non-acceptance and specify the adjustments which, in its opinion, should be made to the draft Completion Accounts and the Statement in order to comply disagrees with the requirements of this agreement; and
(b) Schedule then the parties shall use all their respective reasonable endeavours to:
(i) meet and discuss to agree the objections of the Seller, and
(ii) try to reach agreement upon the adjustments (if any) required to be made to the draft Completion Accounts and the Statement, in each case, Schedule within 15 Business Days of the Seller’s notice of non-acceptance pursuant to clause 6.2 7days (or such other time longer period as the Parties parties may agree in writingagree).
6.4 If , failing which the Seller is satisfied with the draft Completion Accounts and the Statement (either as originally submitted or after adjustments agreed between the Seller and the Buyer) or if the Seller fails to notify the Buyer of its non-acceptance of the draft Completion Accounts and the Statement within the 15 Business Day period disagreement shall be referred to in clause 6.2, then an independent accountant (the draft Completion Accounts and "Independent Accountant") who shall determine the Statement (incorporating any agreed adjustments) shall constitute the Completion Accounts and the Statement for the purposes of this agreement.
6.5 If the Seller and the Buyer do not reach agreement within the 15 Business Day period referred to in clause 6.3(b) (or such other time as the Parties may agree in writing) then the matters matter in dispute (and only those) issue his certificate in that respect. The Independent Accountant shall be referred, on the application of either the Seller or the Buyer, for determination by an independent firm of internationally recognised chartered accountants to be agreed upon nominated jointly by the Seller and the Buyer or, or failing agreement, to a nomination shall be selected, on appointed at the application request of either the Seller Buyer or the Buyer, Seller at any time by the President for the time being of the Institute of Chartered Accountants in England and Wales Wales. In particular the Independent Accountant shall, where Net Assets is in dispute, determine the Net Assets for the Completion Accounts Period and give his certificate as to the Net Assets.
8.8 The Independent Accountant shall be instructed to deliver his certificate within 30 days of his nomination or his duly appointed deputy appointment (the “firm”). The following provisions shall apply to or such determination:
(a) longer period as the Buyer and/or the Buyer’s accountants and the Seller and/or the Seller’s accountants shall each promptly (may agree) and in any event within such time frame as reasonably enables the firm to make its decision in accordance with the time frame set down in clause 6.5(b)) prepare and deliver to the firm a written statement on the matters in dispute (together with the relevant supporting documents);
(b) the firm shall be requested to give its decision within 15 Business Days (or by such later date as the firm determines) of the confirmation and acknowledgment by the firm of its appointment hereunder;
(c) in giving such determination, the firm shall state what adjustments (if any) are necessary to the draft Completion Accounts and the Statement in respect of the matters in dispute in order to comply with the requirements of this agreement and shall give its reasons therefor;
(d) the firm shall act as an expert (and not as an arbitratorarbitrator and (in the absence of obvious error) his decision (which shall be communicated in making any such determination which writing to the Seller and the Buyer) shall be final and binding on the Parties (in the absence of manifest error);
(e) each Party shall bear the costs and expenses of all counsel and other advisers, witnesses and employees retained by it Seller and the Buyer. The fees and costs and the expenses of the firm Independent Accountant shall be borne between payable and paid by the Seller and the Buyer in such the proportions as the firm shall in its discretion determine or, Independent Accountant directs and in the absence of any such determination, equally between direction his fees and costs shall be borne as to fifty per cent by the Seller Buyer and as to fifty per cent by the BuyerSeller.
6.6 When the 8.9 The Seller and the Buyer reach (or pursuant to clause 6.4 are deemed to reach) agreement on the Completion Accounts and the Statement or when the Completion Accounts and the Statement are finally determined at any stage in accordance with the procedures set out in this clause 6:
(a) the Completion Accounts and the Statement as so agreed or determined shall be the Completion Accounts and the Statement for the purposes of this agreement and shall be final and binding on the Parties; and
(b) the Working Capital Amount, the Debt and the Cash shall be as set out in the Statement.
6.7 Subject to any rule of law or any regulatory body or any provision of any contract or arrangement entered into prior to the date of this agreement to the contrary, the Seller shall procure that each member of the Sellers’ Group shall, and the Buyer shall procure that the Group shall, promptly provide each other, their respective advisers, the firm, the Buyer’s accountants all records and the Seller’s accountants with all working papers and other information (in their respective possession or control) relating to the operations of the Group, including access at all reasonable times to all the Group’s employees, books, records, and other relevant information and all co-operation and assistance, under their control as may in any such case be reasonably required to:by the Independent Accountant to enable him to resolve the dispute shall be made available as soon as possible on request.
(a) enable the production 8.10 The costs of the Completion Accounts and Seller's Accountants in connection with the Statement; and
(b) enable determination of the firm to determine Net Assets shall, except where the Completion Accounts and the Statement. The Seller and the Buyer hereby authorise each otherIndependent Accountant otherwise decides, their respective advisers and the firm to take copies of all information which they have agreed to provide under this clause 6.7.
6.8 Subject to clause 6.5(e), be paid by the Seller and the Buyer shall each bear their own equivalent costs and expenses arising out of the preparation and review Buyer's Accountants shall be paid by the Buyer with the exception only of those costs properly attributed to their audit responsibilities which shall be paid by the Completion Accounts and the StatementCompany.
Appears in 1 contract
Samples: Agreement for the Sale and Purchase of Shares (Geoworks /Ca/)
Completion Accounts. 6.1 The Buyer Purchasers shall procure that as soon as practicable after Completion and in any event within 25 Business Days after the Group prepares drafts Completion Date (the "First Period") the preparation of the Completion Accounts and the Statement in the format set out in part 2 of schedule 7 (the “Statement”), on the basis of the accounting policies and procedures set out in schedule 8 and deliver them to the Seller within 40 Business Days of Completion4.
6.2 The Seller shall notify the Buyer in writing within 20 Business Days of receipt of such draft Completion Accounts and the Statement whether or not it accepts the draft Completion Accounts and Statement for the purposes of this agreement.
6.3 If the Seller notifies the Buyer that it does not accept such draft Completion Accounts and Statement:
(a) it shall, at the same time as it notifies the Buyer that it does not accept such draft Completion Accounts and Statement, set out in such notice in writing its reasons in reasonable detail for such non-acceptance and specify the adjustments which, in its opinion, should be made to the draft Completion Accounts and the Statement in order to comply with the requirements of this agreement; and
(b) the parties shall use all reasonable endeavours to:
(i) meet and discuss the objections of the Seller, and
(ii) try to reach agreement upon the adjustments (if any) required to be made to the draft Completion Accounts and the Statement, in each case, within 15 Business Days of the Seller’s notice of non-acceptance pursuant to clause 6.2 (or such other time as the Parties may agree in writing).
6.4 If the Seller is satisfied with the draft Completion Accounts and the Statement (either as originally submitted or after adjustments agreed between the Seller and the Buyer) or if the Seller fails to notify the Buyer of its non-acceptance of the draft Completion Accounts and the Statement within the 15 Business Day period referred to in clause 6.2, then the draft Completion Accounts and the Statement (incorporating any agreed adjustments) shall constitute Purchasers' Accountants will review the Completion Accounts and the Statement for the purposes of this agreement.
6.5 If the Seller and the Buyer do not reach agreement within the 15 Business Day period referred to in clause 6.3(b) (or such other time as the Parties may agree in writing) then the matters in dispute (and only those) shall be referred, on the application of either the Seller or the Buyer, for determination by an independent firm of internationally recognised chartered accountants to be agreed upon by the Seller and the Buyer or, failing agreement, to be selected, on the application of either the Seller or the Buyer, by the President for the time being 20 days of the Institute end of Chartered Accountants in England the First Period ("the Second Period") and Wales or his duly appointed deputy (the “firm”). The following provisions shall apply to such determination:
(a) the Buyer and/or the Buyer’s accountants and the Seller and/or the Seller’s accountants shall each promptly (and in any event within such time frame as reasonably enables the firm to make its decision in accordance with the time frame set down in clause 6.5(b)) prepare and deliver will issue to the firm Purchasers a written statement on draft report ("the matters in dispute (together with the relevant supporting documents);
(bReport") the firm shall be requested to give its decision within 15 Business Days (or by such later date as the firm determines) of the confirmation and acknowledgment by the firm of its appointment hereunder;
(c) in giving such determination, the firm shall state what adjustments (if any) are necessary to the draft Completion Accounts and the Statement in respect of the matters in dispute in order to comply with the requirements of this agreement and shall give its reasons therefor;
(d) the firm shall act as an expert (and not as an arbitrator) in making any such determination which shall be final and binding on the Parties (in the absence of manifest error);
(e) each Party shall bear the costs and expenses of all counsel and other advisers, witnesses and employees retained by it and the costs and the expenses of the firm shall be borne between the Seller and the Buyer in such proportions as the firm shall in its discretion determine or, in the absence of any such determination, equally between the Seller and the Buyer.
6.6 When the Seller and the Buyer reach (or pursuant to clause 6.4 are deemed to reach) agreement on the Completion Accounts and the Statement or when the Completion Accounts and the Statement are finally determined at any stage in accordance with the procedures set out in this clause 6stating that:
(a) the Completion Accounts have been properly prepared on the basis set out in the agreement;
(b) on the basis of the Completion Accounts, the amount of the Net Asset Value.
6.3 Upon receipt of the Report and the Statement as so agreed or determined shall be the Completion Accounts the Vendor shall review the same and the Statement for Vendor and its agents shall be allowed all reasonable facilities (including the purposes provision of all working papers) to enable them to conduct such review and in particular to satisfy themselves that the Completion Accounts are prepared in accordance with the provisions of this agreement Clause and Schedule 4 and that they agree the Net Asset Value. If the Vendor shall fail to notify the Purchasers that it does not agree the Net Asset Value as certified within 10 Business Days after the end of the Second Period (the "Third Period") the Vendor shall be deemed to have agreed the Net Asset Value as set out in the Report.
6.4 If the Vendor shall notify the Purchasers that it does not agree the Net Asset Value as set out in the Report the Purchasers and the Vendor shall negotiate in good faith to agree prior to the end of the period being 5 Business Days after the end of the Third Period (the "Fourth Period") the Net Asset Value and if the Purchasers and the Vendor shall fail to agree the Net Asset Value as reported or otherwise on or before the end of the Fourth Period then the matter shall be referred by the Vendor and Purchasers jointly to the Expert.
6.5 The Vendor and the Purchasers shall be entitled to make written representations to the Expert but subject thereto the Expert shall be entitled to determine the procedure to be followed in his determination in so doing:
(a) the Expert shall act as an expert and not as an arbitrator and his decision shall, in the absence of manifest error, be final and binding on the Parties; andparties;
(b) all the Working Capital Amount, costs of the Debt Expert shall be shared equally by the Vendor and the Cash shall be as set out in Purchasers unless the Statement.Expert decides otherwise;
6.7 Subject to any rule of law or any regulatory body or any provision of any contract or arrangement entered into prior to (c) the date of this agreement to the contrary, the Seller shall procure that each member of the Sellers’ Group shall, Vendor and the Buyer Purchasers shall each procure that the Group shallExpert is afforded all facilities and access to personnel, promptly provide each otherpremises, their respective adviserspapers, accounts, records and such other documents as may reasonably be required by him in order to reach his decision;
(d) the firm, the Buyer’s accountants Vendor and the Seller’s accountants Purchasers (or their professional advisers on their behalf) shall each be entitled to make one submission (or more at the request or with all information the agreement of the Expert) (in their respective possession whether written or controloral or a combination of both) relating to the operations Expert in relation to any item or question referred to him;
(e) the Vendor and the Purchasers shall each use all reasonable endeavours to procure that the Expert issues his determination within 30 Business Days of the Group, including access at all reasonable times initial reference to all the Group’s employees, books, records, and other relevant information and all cohim under sub-operation and assistance, as may in any such case be reasonably required to:
clause (a) enable and shall accordingly co-operate with the production of Expert and with each other in agreeing, and complying with, any procedural requirements and any timetable suggested by the Completion Accounts and Expert or the Statementother party; and
6.6 If the Net Asset Value as agreed or determined in accordance with this Clause is less than (b) enable pound)247,000 then the firm Vendor and Fiberstars forthwith shall instruct the Escrow Agent to determine retain such amount of Escrow Stock equivalent to any shortfall on a (pound)1 to (pound)1 basis from (pound)247,000 in accordance with the Completion Accounts and the Statement. The Seller and the Buyer hereby authorise each other, their respective advisers and the firm to take copies of all information which they have agreed to provide under this clause 6.7.
6.8 Subject to clause 6.5(e), the Seller and the Buyer shall each bear their own costs and expenses arising out terms of the preparation Escrow Agreement and review of the Completion Accounts and the Statementclause 20.
Appears in 1 contract
Samples: Agreement for the Sale and Purchase of the Business and Assets (Fiberstars Inc /Ca/)
Completion Accounts. 6.1 3.2.1 The Buyer Purchasers shall procure that the Group prepares drafts of the prepare draft Completion Accounts and the a draft Completion Statement in the format set out in part 2 of schedule 7 (the “Statement”), on the basis and deliver a copy of the accounting policies and procedures set out in schedule 8 and deliver them same to the Seller within 40 30 Business Days of Completion.
6.2 3.2.2 The Seller shall notify the Buyer in writing within 20 Business Days of receipt of such draft Completion Accounts and the Statement whether or not it accepts the draft Completion Accounts and Statement for the purposes of this agreement.
6.3 If the Seller notifies the Buyer that it does not accept such draft Completion Accounts and Statement:
(a) it shall, at the same time as it notifies the Buyer that it does not accept such draft Completion Accounts and Statement, set out in such notice in writing its reasons in reasonable detail for such non-acceptance and specify the adjustments which, in its opinion, should be made to may review the draft Completion Accounts and the draft Completion Statement in order to comply satisfy itself that they have been prepared in accordance with the requirements of this agreement; and
(b) the parties shall use all reasonable endeavours to:
(i) meet and discuss the objections of the Seller, and
(ii) try to reach agreement upon the adjustments (if any) required to be made to the draft Completion Accounts clause 3.2 and the Statement, in each caseprovisions of Schedule 8. Unless, within 15 Business Days of the Seller’s notice of non-acceptance pursuant to clause 6.2 (or such other time as the Parties may agree in writing).
6.4 If the Seller is satisfied with the draft Completion Accounts and the Statement (either as originally submitted or after adjustments agreed between the Seller and the Buyer) or if the Seller fails to notify the Buyer of its non-acceptance receipt of the draft Completion Accounts and the draft Completion Statement within by the 15 Business Day period referred to Seller (excluding the day of receipt) the Seller notifies the Purchasers in writing of any respect in which they are not satisfied that the details of the draft Completion Accounts or the draft Completion Statement are in accordance with this clause 6.23.2 and the provisions of Schedule 8, then the contents of the draft Completion Accounts and the draft Completion Statement shall be final and binding as between the Purchasers and the Seller.
3.2.3 If the Seller does so notify the Purchasers, the Seller’s notification shall specify (incorporating any agreed adjustmentsa) which items of the draft Completion Accounts or the draft Completion Statement are disputed, (b) the reasons therefor and (c) the monetary value of the adjustments that the Seller claims are accordingly required to be made.
3.2.4 If the Seller does so notify the Purchasers, the parties shall constitute endeavour within the period expiring 15 Business Days after receipt of the Seller’s written notice by the Purchasers (excluding the day of receipt) to resolve the matter and if the matter is not so resolved it may be resolved by an accountant (the “Independent Accountant”) in accordance with the provisions of clauses 3.2.6 to 3.2.9 below.
3.2.5 The Purchasers and the Seller shall provide each other and each other’s respective professional advisers with all relevant papers and all information and explanations as are reasonably required to assist the Purchasers and the Seller in their endeavours to agree the Completion Accounts and the Statement for the purposes of this agreementCompletion Statement.
6.5 If 3.2.6 The Independent Accountant shall be a firm of chartered accountants agreed on by the Seller and the Buyer do Purchasers or, if they cannot reach agreement agree on such appointment within 5 Business Days of either party giving notice in writing to the 15 Business Day period referred other that it desires an Independent Accountant to in clause 6.3(b) (or be appointed, such other time firm of chartered accountants as the Parties may agree in writing) then the matters in dispute (and only those) shall be referred, nominated on the application of either the Seller or the Buyer, for determination by an independent firm one of internationally recognised chartered accountants to be agreed upon by the Seller and the Buyer or, failing agreement, to be selected, on the application of either the Seller or the Buyer, them by the President or other senior officer for the time being of the Institute of Chartered Accountants in England and Wales Wales.
3.2.7 If any disagreement or his duly appointed deputy (dispute under this agreement is referred to the “firm”). The following provisions shall apply to such determinationIndependent Accountant:
(a) the Buyer and/or the Buyer’s accountants and the Seller and/or the Seller’s accountants shall parties will each promptly (and in any event within such time frame as reasonably enables the firm use all reasonable endeavours to make its decision in accordance co-operate with the time frame set down Independent Accountant in clause 6.5(b)) prepare resolving such disagreement or dispute, and deliver for that purpose will provide to him all such information and documentation as he may reasonably require for the firm a written statement on the matters in dispute (together with the relevant supporting documents)purposes of settling such disagreement or dispute;
(b) the firm Independent Accountant shall be requested have the right to give its decision within 15 Business Days (or by seek such later date professional assistance and advice as the firm determines) of the confirmation and acknowledgment by the firm of its appointment hereunderhe may reasonably require;
(c) in giving such determination, the firm shall state what adjustments (if any) are necessary to the draft Completion Accounts and the Statement in respect fees of the matters Independent Accountant and other professional fees incurred by him shall be paid 50% by the Seller and 50% by the Purchaser save where the Independent Accountant directs otherwise in dispute in order to comply with the requirements of this agreement and shall give its reasons thereforwriting;
(d) the firm Independent Accountant will be requested to make a decision within 15 Business Days of the referral.
3.2.8 The Independent Accountant shall act as an expert (and not as an arbitrator) arbitrator and, save in making any such determination which the case of fraud or manifest error, his decision shall be final and binding on the Parties (in the absence of manifest error);parties.
(e) each Party shall bear the costs 3.2.9 The draft Completion Accounts and expenses of all counsel and other advisers, witnesses and employees retained by it and the costs and the expenses of the firm draft Completion Statement shall be borne between the Seller determined as final and the Buyer in such proportions as the firm shall in its discretion determine or, in the absence of any such determination, equally between the Seller and the Buyer.
6.6 When the Seller and the Buyer reach (or binding either pursuant to clause 6.4 are deemed to reach) 3.2.2 above or as a result of agreement on between the Completion Accounts Purchasers and the Seller or as a result of the decision of the Independent Accountant.
3.2.10 If Working Capital as shown by the final and binding Completion Statement or when the Completion Accounts and the Statement are finally determined at any stage in accordance with the procedures set out in this clause 6shall be:
(a) a sum which is greater than £2,700,000, the Completion Accounts Purchasers shall pay to the Seller, subject to and in accordance with clause 3.2.13, an amount equal to the difference between such sum and the Statement as so agreed or determined shall be the Completion Accounts and the Statement for the purposes of this agreement and shall be final and binding on the Parties; andTarget Working Capital;
(b) the Working Capital Amount, the Debt and the Cash shall be as set out in the Statement.
6.7 Subject to any rule of law or any regulatory body or any provision of any contract or arrangement entered into prior to the date of this agreement to the contrarya sum which is less than £2,600,000, the Seller shall procure that each member of pay to the Sellers’ Group shallPurchasers, subject to and in accordance with clause 3.2.13, an amount equal to the difference between such sum and the Buyer Target Working Capital; or
(c) between £2,600,000 and £2,700,000 no further payment shall procure that be made by any party under this clause 3.2.10.
3.2.11 If Net External Debt as shown by the Group shall, promptly provide each other, their respective advisers, the firm, the Buyer’s accountants final and the Seller’s accountants with all information (in their respective possession or control) relating to the operations of the Group, including access at all reasonable times to all the Group’s employees, books, records, and other relevant information and all co-operation and assistance, as may in any such case be reasonably required tobinding Completion Statement shall be:
(a) enable a sum which is greater than the production Assumed Net External Debt, the Seller shall pay to the Purchasers subject to and in accordance with clause 3.2.13 a sum equal to the difference;
(b) a sum which is less than the Assumed Net External Debt the Purchasers shall pay to the Seller subject to and in accordance with clause 3.2.13 a sum equal to the difference; or
(c) equal to the Assumed Net External Debt, no further payment shall be made by any party under this clause 3.2.11.
3.2.12 If Intra-Group Indebtedness as shown by the final and binding Completion Statement shall be:
(a) a sum which is greater than the Assumed Intra-Group Indebtedness, that part of the Completion Payment which constituted repayment of Intra-Group Indebtedness shall be deemed to be increased and that part of the Completion Payment which constituted payment of Purchase Price shall be deemed to be decreased, by a sum equal to the difference;
(b) a sum which is less than the Assumed Intra-Group Indebtedness, that part of the Completion Payment which constituted repayment of Intra-Group Indebtedness shall be deemed to be decreased and that part of the Completion Payment which constituted payment of Purchase Price shall be deemed to be increased, by a sum equal to the difference; or
(c) equal to the Assumed Intra-Group Indebtedness, no further adjustment shall be made under this clause 3.2.12.
3.2.13 The amount payable to the Purchasers by the Seller or to the Seller by the Purchasers as a result of the net of the Working Capital and Net External Debt adjustments above shall be paid:
(a) within 5 Business Days after the date on which the Completion Accounts and the Statement; andCompletion Statement have become final and binding pursuant to clause 3.2.9;
(b) enable together with interest on the firm amount to determine be paid calculated at the rate of 1% per annum above the base lending rate from time to time of The Royal Bank of Scotland plc from the Completion Accounts Date until the date of actual payment accruing day to day on the basis of actual number of days elapsed and a year of 365 days;
(c) by electronic transfer:
(i) (where that sum is expressed to be payable to the Statement. The Seller and Seller) to the Buyer hereby authorise each other, their respective advisers and Seller’s Solicitors Account or such other account in the firm to take copies of all information which they have agreed to provide under this clause 6.7.
6.8 Subject to clause 6.5(e), UK as the Seller and may specify in writing to the Buyer shall each bear their own costs and expenses arising out of Purchasers; or
(ii) (where that sum is expressed to be payable to the preparation and review of Purchasers) to such account in the Completion Accounts and UK as the StatementPurchasers may specify in writing to the Seller.
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