Completion Accounts. 5.1 For the purpose of preparing the Completion Accounts, the Purchaser shall procure that a physical inventory of the stock of each member of the Group and each Business is taken in accordance with normal procedures as soon as practicable and in any event within two Business Days after Completion. The Seller and/or the Seller's Accountants shall be entitled to attend the stock-take. 5.2 The Purchaser shall procure that each member of the Group and each Business prepares and submits to the Seller and the Seller's Accountants: (A) the sales flash (being details of the actual sales made by the Group and the Businesses for the month or part month ending on the Completion Date) as soon as practicable but in any event by midnight at the end of the seventh Business Day after Completion; (B) management accounts of the Group and the Businesses for the month or part month ending on the Completion Date and a cash report of the Group as at the Completion Date as soon as practicable but in any event by midnight at the end of the tenth Business Day after Completion; and (C) the consolidation returns for the Group and the Businesses as at the Completion Date by midnight at the end of the 20th Business Day after Completion. 5.3 The Seller shall (at its own expense) procure that the Seller's Accountants prepare the Completion Accounts (from the consolidation returns referred to in clause 5.2), the calculation of the working Capital Benchmark and the Completion Statement, in compliance with the provisions of Schedule 9 and shall procure that the Seller's Accountants produce a written report addressed to the Seller on such compliance. The Seller shall, within 45 Business Days of Completion, or, if later, 25 Business Days after the delivery of the consolidation returns pursuant to clause 5.2, procure the delivery to the Purchaser of the Completion Accounts, the calculation of the Working Capital Benchmark, the Completion Statement and the Seller's Accountants report. 5.4 The Purchaser shall be entitled at any time within the period expiring 20 Business Days after receipt of the Completion Accounts, the calculation of the Working Capital Benchmark, the Completion Statement and the Seller's Accountants report to dispute the Completion Accounts, the calculation of the Working Capital Benchmark and/or the Completion Statement by notice in writing (a "Dispute Notice") to the Seller setting out preliminary grounds for dispute. If no Dispute Notice is given by the Purchaser before the expiry of such 20 Business Day period, the Completion Accounts, the calculation of the working Capital Benchmark and the Completion Statement shall be deemed to have been agreed by the Seller and the Purchaser and shall be final and binding on the Seller and the Purchaser. The Purchaser shall, if it has not served a Dispute Notice, be entitled to notify the Seller prior to the expiry of such 20 Business Day period that the Completion Accounts, the calculation of the Working Capital Benchmark and the Completion Statement are agreed and that the Purchaser does not intend to serve a Dispute Notice and following any such notification the Completion Accounts, the Calculation of the Working Capital Benchmark and the Completion Statement shall be deemed to be agreed by the Seller and the Purchaser and shall be final and binding on the Seller and the Purchaser. 5.5 The Seller and the Purchaser shall use all reasonable endeavours to resolve any dispute(s) and agree the Completion Accounts, the calculation of the Working Capital Benchmark and the Completion Statement within 20 Business Days of the date of receipt of a Dispute Notice by the Seller. If they fail to do so by the expiry of such 20 Business Day period, any matter in dispute shall be referred to the Independent Accountants (acting as experts and not as arbitrators). "
Appears in 1 contract
Samples: Business and Share Sale and Purchase Agreement (Rockwood Specialties Group Inc)
Completion Accounts. 5.1 For 6.1 The Vendors shall procure that the purpose Vendors' Representatives shall:
(a) prepare a draft of preparing the Completion Accounts in accordance with the accounting principles, practices, policies and procedures set out or referred to in Part 1 of Schedule 10 and in the format set out in Part 2 of Schedule 10;
(b) by extracting the relevant items from the Draft Completion Accounts, prepare or cause to be prepared a draft of the Net Assets Statement in the format set out in Part 3 of Schedule 10 and a draft of the Variance Statement in the format set out in Part 4 of Schedule 10; and
(c) deliver the Draft Completion Accounts, the Draft Net Assets Statement and the Draft Variance Statement to the Purchaser shall procure that a physical inventory of the stock of each member of the Group and each Business is taken in accordance with normal procedures as soon as reasonably practicable following Completion and in any event within two by no later than 30 Business Days after Completionfollowing the Completion Date.
6.2 Within 5 Business Days of the date on which the Draft Completion Accounts are delivered to the Purchaser pursuant to Clause 6.1(c), the Purchaser shall pay to the Warrantors the Option Exercise Proceeds in full (without any set-off, counterclaim or the like) by electronic funds transfer to the Nominated Account. The Seller and/or the Seller's Accountants Option Exercise Proceeds shall be entitled to attend apportioned equally between the stock-takeWarrantors.
5.2 6.3 The Purchaser shall procure that each member within the period of the Group and each Business prepares and submits to the Seller and the Seller's Accountants:
(A) the sales flash (being details of the actual sales made by the Group and the Businesses for the month or part month ending on the Completion Date) as soon as practicable but in any event by midnight at the end of the seventh Business Day after Completion;
(B) management accounts of the Group and the Businesses for the month or part month ending on the Completion Date and a cash report of the Group as at the Completion Date as soon as practicable but in any event by midnight at the end of the tenth Business Day after Completion; and
(C) the consolidation returns for the Group and the Businesses as at the Completion Date by midnight at the end of the 20th Business Day after Completion.
5.3 The Seller shall (at its own expense) procure that the Seller's Accountants prepare the Completion Accounts (from the consolidation returns referred to in clause 5.2), the calculation of the working Capital Benchmark and the Completion Statement, in compliance with the provisions of Schedule 9 and shall procure that the Seller's Accountants produce a written report addressed to the Seller on such compliance. The Seller shall, within 45 60 Business Days of Completion, or, if later, 25 Business Days after the following delivery of the consolidation returns pursuant to clause 5.2, procure the delivery to the Purchaser of the Draft Completion Accounts, the calculation of the Working Capital Benchmark, the Completion Draft Net Assets Statement and the Seller's Accountants report.Draft Variance Statement to it pursuant to Clause 6.1(c) (the "Initial Agreement Period") either:
5.4 The Purchaser shall be entitled at any time within (a) confirm its agreement with the period expiring 20 Business Days after receipt of the Draft Completion Accounts, the calculation of the Working Capital Benchmark, the Completion Draft Net Assets Statement and the Seller's Accountants report Draft Variance Statement so delivered; or
(b) give notice in writing to dispute the Vendors' Representatives that the Purchaser disputes the Draft Completion Accounts, the calculation of Draft Net Assets Statement and the Working Capital Benchmark and/or the Completion Draft Variance Statement by notice in writing (a "Dispute Notice").
6.4 Any Dispute Notice shall set out in reasonable detail:
(a) the matters which are disputed (the "Disputed Matters");
(b) the reasons why such matters are disputed; and
(c) the resulting adjustments which, in the opinion of the Purchaser, should be made to the Seller setting out preliminary grounds for disputeDraft Completion Accounts, the Draft Net Assets Statement and the Draft Variance Statement. If no A Dispute Notice shall only be valid for the purposes of this Agreement if it is given by the Purchaser before served prior to the expiry of the Initial Agreement Period. Except for matters specifically set out in a Dispute Notice served prior to the expiry of the Initial Agreement Period, the parties shall be deemed to have agreed in full with the Draft Completion Accounts, the Draft Net Assets Statement and the Draft Variance Statement.
6.5 If the Purchaser:
(a) does not serve a Dispute Notice prior to the expiry of the Initial Agreement Period; or
(b) during the Initial Agreement Period confirms by notice in writing its agreement with the Draft Completion Accounts, the Draft Net Assets Statement and the Draft Variance Statement (either as delivered in accordance with Clause 6.1 or as modified in such 20 Business Day periodmanner as shall be agreed between the Purchaser and the Vendors' Representatives), the Draft Completion Accounts, the Draft Net Assets Statement and the Draft Variance Statement shall constitute the Completion Accounts, the calculation of the working Capital Benchmark Net Assets Statement and the Completion Variance Statement shall be deemed to have been agreed by for the Seller and the Purchaser purposes of this Agreement and shall be final and binding on the Seller Purchaser, the Vendors' Representatives and the Purchaser. The Vendors.
6.6 If the Purchaser shall, if it has not served does serve a valid Dispute Notice, be entitled to notify the Seller Notice prior to the expiry of such the Initial Agreement Period, then the Vendors' Representatives and the Purchaser shall meet and discuss the Disputed Matters and (acting in good faith) shall use their respective reasonable endeavours (in conjunction with their respective accountants) to reach agreement on the Disputed Matters as soon as reasonably practicable and in any event within the period of 20 Business Day Days following the date of service of the Dispute Notice (or such longer period that as may be agreed in writing between the Vendors' Representatives and the Purchaser) (the "Dispute Resolution Period") and either:
(a) if the Purchaser and the Vendors' Representatives reach agreement on the Disputed Matters during the Dispute Resolution Period, the Draft Completion Accounts, the Draft Net Assets Statement and the Draft Variance Statement shall be modified to reflect such agreement and, as so modified, shall constitute the Completion Accounts, the calculation of the Working Capital Benchmark Net Assets Statement and the Completion Variance Statement are agreed and that for the Purchaser does not intend to serve a Dispute Notice and following any such notification the Completion Accounts, the Calculation purposes of the Working Capital Benchmark and the Completion Statement shall be deemed to be agreed by the Seller and the Purchaser this Agreement and shall be final and binding on the Seller Purchaser, the Vendors' Representatives and the PurchaserVendors; or
(b) if the Purchaser and the Vendors' Representatives do not reach agreement on the Disputed Matters prior to the expiry of the Dispute Resolution Period, then either the Purchaser or the Vendors' Representatives may refer the Disputed Matters to such independent firm of chartered accountants of international standing (the "Independent Firm") as may be agreed between the Purchaser and the Vendors' Representatives or, in default of such agreement within 10 Business Days following the expiry of the Dispute Resolution Period, as may (on the application of either the Purchaser or the Vendors' Representatives) be nominated by the President for the time being of the Institute of Chartered Accountants in England and Wales.
5.5 6.7 Where a reference is made to an Independent Firm pursuant to Clause 6.6, the Purchaser and the Vendors' Representatives (acting in good faith) shall use their respective reasonable endeavours to agree with the Independent Firm as soon as reasonably practicable following its acceptance of such reference the Independent Firm's detailed terms of reference and the procedures which are to apply in relation to the hearing, consideration and determination by the Independent Firm of the Disputed Matters. The Seller following general terms of reference and procedures shall apply in any event:
(a) the Independent Firm shall be instructed to make a determination only in relation to the Disputed Matters specified in the Dispute Notice and to make such determination in accordance with the accounting principles, practices, policies and procedures set out or referred to in Part 1 of Schedule 10;
(b) the Vendors' Representatives and the Purchaser shall use all each prepare a written submission to the Independent Firm on the Disputed Matters specified in the Dispute Notice and shall deliver copies of their respective submissions to the Independent Firm and to each other within 20 Business Days following the acceptance by the Independent Firm of the reference to it;
(c) following delivery of their respective submissions pursuant to paragraph (b), the Vendors' Representatives and the Purchaser shall each have the opportunity to comment once only on the other party's submission. Any such comments shall be in writing and shall be delivered to the Independent Firm and copied to the other party not later than 10 Business Days following the expiry of the 20 Business Day period referred to in paragraph (b);
(d) any information provided by either the Vendors' Representatives or the Purchaser in response to a subsequent request or enquiry by the Independent Firm shall be copied to the other party at the same time as it is delivered to the Independent Firm and, unless otherwise directed by the Independent Firm, such other party shall have the opportunity to comment once only on that information. Any such comments shall be in writing and shall be delivered to the Independent Firm and copied to the party who provided the information not later than 10 Business Days after receipt of such information by the commenting party. Thereafter, neither the Purchaser nor the Vendors' Representatives shall be entitled to make further statements or submissions except insofar as the Independent Firm so requests (in which case it shall, on each occasion, give the other party 10 Business Days to comment on any statement or submission so made);
(e) in addition to (or in place of) the procedures set out above, the Independent Firm may, in its reasonable endeavours discretion, stipulate other (or alternative) procedures which are to resolve apply in relation to the hearing, consideration and determination by it of the Disputed Matters (which may include inviting the Vendors' Representatives and the Purchaser to make oral submissions);
(f) the Independent Firm shall be requested to make its determination in relation to the Disputed Matters and to notify the same to the Purchaser and the Vendors' Representatives as soon as reasonably practicable and in any dispute(sevent within 60 Business Days after its acceptance of the reference to it (or such longer period as the Independent Firm may reasonably determine). In making its determination, the Independent Firm shall state what adjustments (if any) are necessary to the Draft Completion Accounts, the Draft Net Assets Statement and agree the Draft Variance Statement to determine finally the Net Assets, the Revenue Variance and the EBITDA Variance and shall give its reasons therefor;
(g) in making its determination, the Independent Firm shall act as an expert and not as an arbitrator and the determination of the Independent Firm shall, in the absence of fraud or manifest error, be final and binding on the Purchaser, the Vendors' Representatives and the Vendors;
(h) following the notification of the Independent Firm's determination to the Purchaser and the Vendors' Representatives, the Draft Completion Accounts, the Draft Net Assets Statement and the Draft Variance Statement shall be amended as necessary to reflect the decision of the Independent Firm in relation to the Disputed Matters and, as so amended, shall constitute the Completion Accounts, the calculation Net Assets Statement and the Variance Statement and shall be final and binding on the Purchaser, the Vendors' Representatives and the Vendors;
(i) the fees and expenses of the Working Capital Benchmark Independent Firm shall be borne by the Purchaser and the Vendors in the proportions it directs (and the Independent Firm shall be instructed to make such costs direction having regard in particular to all submissions of the parties compared to the determination) or, in the absence of any such direction, equally between the Purchaser on the one hand and the Vendors on the other; and
(j) the Purchaser and the Vendors shall provide or (so far as lies within their respective power) procure others to provide to the Independent Firm all such information and documentation as the Independent Firm shall reasonably require to assist it in reaching its determination.
6.8 The Purchaser, the Vendors' Representatives and the Vendors shall bear their own respective costs incurred in connection with the preparation, review and finalisation of the Draft Completion Accounts, the Draft Net Assets Statement, the Draft Variance Statement, the Completion Accounts, the Net Assets Statement within 20 and the Variance Statement and the agreement or determination of the Net Assets, the Revenue Variance and the EBITDA Variance (including any costs incurred in connection with any reference to an Independent Firm pursuant to Clause 6.6, subject to Clause 6.7(i)).
6.9 The Purchaser and the Vendors shall provide or procure the provision to the other of such information and documentation in or under their respective possession or control (including access at all reasonable times to personnel, books, records and working papers) as the other may reasonably request in connection with the preparation, review and finalisation of the Draft Completion Accounts, the Draft Net Assets Statement, the Draft Variance Statement, the Completion Accounts, the Net Assets Statement and the Variance Statement.
6.10 Within 10 Business Days of the finalisation of the Completion Accounts, the Net Assets Statement and the Variance Statement in accordance with this Clause 6:
(a) if the Net Assets exceed £1,994,000, the Purchaser shall pay to the Vendors the amount of such excess;
(b) if the Net Assets are less than £1,794,000 the Vendors shall owe to the Purchaser the amount of such deficit, which shall be satisfied by way of set-off and deduction from the Earn Out Payments in their Relevant Proportions.
6.11 Any payment due under Clause 6.10(a) shall be satisfied by electronic funds transfer in immediately available funds to the Nominated Account and shall thereafter be apportioned among the Vendors in their Relevant Proportions.
6.12 If any sum due for payment under this Agreement is not paid on the due date, the party in default shall pay interest thereon at the Default Rate for the period from (and including) the due date for payment to (but excluding) the date of receipt of a Dispute Notice by the Selleractual payment. If they fail The Purchaser hereby acknowledges and agrees that this Clause 6.12 shall not apply to do so by the expiry of such 20 Business Day period, any matter in dispute shall be referred payment due to the Independent Accountants (acting as experts Purchaser by way of set-off and not as arbitratorsdeduction from the Earn-Out Payments pursuant to Clause 6.10(b). ".
Appears in 1 contract
Completion Accounts. 5.1 For the purpose 4.1 The Buyer shall use its reasonable endeavours to ensure that a draft of preparing the Completion Accounts, the Purchaser shall procure that a physical inventory of the stock of each member of the Group and each Business Accounts is taken in accordance with normal procedures prepared as soon as practicable possible after Completion and in any event within two Business Days after Completion. The Seller and/or the Seller's Accountants shall be entitled to attend the stock-take.
5.2 The Purchaser shall procure that each member of the Group and each Business prepares and submits delivered to the Seller and the Seller's Accountants:
(A) ’s Accountants on or before the sales flash (being details of date falling 60 Business Days after Completion, together with the actual sales made Buyer’s working papers and the Net Current Asset Statement signed by the Group and the Businesses for the month or part month ending on the Completion Date) as soon as practicable but in any event by midnight at the end of the seventh Business Day after Completion;
(B) management accounts of the Group and the Businesses for the month or part month ending on the Completion Date and a cash report of the Group as at the Completion Date as soon as practicable but in any event by midnight at the end of the tenth Business Day after Completion; and
(C) the consolidation returns for the Group and the Businesses as at the Completion Date by midnight at the end of the 20th Business Day after CompletionBuyer.
5.3 4.2 The Seller shall (at its own expense) procure that the Seller's Accountants prepare the draft Completion Accounts (from the consolidation returns referred to in clause 5.2), and the calculation of the working Capital Benchmark and Net Current Asset Value set out in the Completion Statement, in compliance with the provisions of Schedule 9 and Net Current Asset Statement shall procure that the Seller's Accountants produce a written report addressed to be deemed agreed by the Seller on such compliance. The Seller shall, within 45 Business Days of Completion, or, if later, 25 the date falling 20 Business Days after the delivery of the consolidation returns pursuant to clause 5.2, procure the delivery date on which those documents are first delivered to the Purchaser Seller and the Seller’s Accountants and shall (save in the case of fraud or manifest error) be final and binding on the parties for all purposes (and shall respectively constitute the Completion Accounts, Accounts and the calculation of the Working Capital BenchmarkNet Current Asset Value for the purposes of this Agreement), unless during that period the Completion Statement and Seller gives notice to the Seller's Accountants report.
5.4 The Purchaser shall be entitled at any time within the period expiring 20 Business Days after receipt of the Completion Accounts, Buyer that she disagrees with the calculation of the Working Capital Benchmark, Net Current Asset Value set out in the Completion Statement and the Seller's Accountants report to dispute the Completion Accounts, the calculation Net Current Asset Statement. Any notice so given shall include reasonable details of the Working Capital Benchmark and/or the Completion Statement reasons for any disagreement and any suggested adjustment, together with reasonable supporting evidence for each adjustment, including any relevant working papers.
4.3 If any notice is so served by notice in writing (a "Dispute Notice") to the Seller setting out preliminary grounds for dispute. If no Dispute Notice is given by the Purchaser before the expiry of during such 20 Business Day period, the Buyer and the Seller shall attempt in good faith to resolve any matters in dispute and agree a final form of Completion Accounts, Accounts and the calculation of the working Capital Benchmark Net Current Asset Value on or before the date falling 10 Business Days after the date on which the Buyer receives the Seller’s notice. Each of the Buyer and the Seller shall to facilitate such agreement cooperate and where relevant, instruct their respective accountants to cooperate with each other. The Completion Statement shall be deemed to have been Accounts and the calculation of the Net Current Asset Value so agreed by them shall (save in the Seller and the Purchaser and shall case of fraud or manifest error) be final and binding on the Seller parties for all purposes (and the Purchaser. The Purchaser shall, if it has not served a Dispute Notice, be entitled to notify the Seller prior to the expiry of such 20 Business Day period that shall respectively constitute the Completion Accounts, Accounts and the calculation of the Working Capital Benchmark Net Current Asset Value for the purposes of this Agreement). In the absence of agreement between the Buyer and the Seller within that time period (as the same may be extended by the written agreement of both parties), the matters in dispute shall be determined by the Independent Accountants and the Independent Accountants shall be instructed to deliver a calculation of the amount of the Net Current Asset Value and revised Completion Statement are agreed and that Accounts adjusted only to take account of the Purchaser does not intend to serve a Dispute Notice and following any such notification matters determined by them. As so revised, the Completion Accounts, the Calculation of the Working Capital Benchmark Accounts and the Completion Statement Net Current Asset Value shall be deemed to be agreed by (save in the Seller and the Purchaser and shall be final and binding on the Seller and the Purchaser.
5.5 The Seller and the Purchaser shall use all reasonable endeavours to resolve any dispute(scase of fraud or manifest error) and agree then respectively constitute the Completion Accounts, Accounts and the calculation of the Working Capital Benchmark Net Current Asset Value for the purposes of this Agreement.
4.4 Each party shall promptly provide to the other or the other’s accountants or professional advisers (and the Completion Statement within 20 Business Days of the date of receipt of a Dispute Notice by the Seller. If they fail to do so by the expiry of such 20 Business Day period, any matter in dispute shall be referred to the Independent Accountants Accountants) all such documents and information as may reasonably be requested for the purpose of preparing or reviewing the Completion Accounts and the Net Current Asset Statement. The parties’ obligations under this clause shall, without limitation, extend to providing access to of all working papers in their possession or under their control created in the course of the preparation and/or review of the Completion Accounts and/or Net Current Asset Statement, together (acting as experts in the case of the Buyer) with extracts from the Company’s accounting records to which the working papers relate or from which the working papers have drawn information, and not as arbitrators)access upon reasonable notice and during normal working hours to relevant personnel, and to relevant records and information within the possession or under the control, of the relevant party. "Pending determination or agreement of the Net Current Asset Value, the Buyer shall maintain the Company’s books and records of account in the United Kingdom.
Appears in 1 contract
Samples: Agreement for the Sale and Purchase of Shares (Jupitermedia Corp)
Completion Accounts. 5.1 For The Purchaser shall:
(a) cause the purpose Company to prepare the Draft Completion Accounts in accordance with the accounting principles, practices, policies and procedures set out in Part 1 of preparing Schedule 10 and in the format set out in Part 2 of Schedule 10;
(b) by extracting the relevant items from the Draft Completion Accounts, prepare or cause to be prepared the Draft WC Statement in the format set out in Part 3 of Schedule 10 and the Draft Net Debt Statement in the format set out in Part 4 of Schedule 10; and
(c) deliver the Draft Completion Accounts, the Draft WC Statement and the Draft Net Debt Statement to the Vendor by no later than 40 Business Days following the Completion Date.
5.2 The Vendor shall within the period of 20 Business Days following delivery of the Draft Completion Accounts, the Draft WC Statement and the Draft Net Debt Statement to it pursuant to Clause 5.1(c) (the "Initial Agreement Period") either:
(a) confirm its agreement with the Draft Completion Accounts, the Draft WC Statement and the Draft Net Debt Statement so delivered; or
(b) give notice in writing to the Purchaser that the Vendor disputes the Draft Completion Accounts, the Draft WC Statement and/or the Draft Net Debt Statement (a "Completion Accounts Dispute Notice").
5.3 Any Completion Accounts Dispute Notice shall set out in reasonable detail:
(a) the matters which are disputed (the "Completion Accounts Disputed Matters");
(b) the reasons why such matters are disputed; and
(c) to the extent the Vendor is reasonably able to do so, the resulting adjustments which, in the opinion of the Vendor, should be made to the Draft Completion Accounts, the Draft WC Statement and/or the Draft Net Debt Statement. A Completion Accounts Dispute Notice shall only be valid for the purposes of this Agreement if it is served prior to the expiry of the Initial Agreement Period and includes the information required by this Clause 5.3. Except for matters specifically set out in a valid Completion Accounts Dispute Notice served prior to the expiry of the Initial Agreement Period, the Vendor shall be deemed to have agreed in full with the Draft Completion Accounts, the Draft WC Statement and the Draft Net Debt Statement.
5.4 If the Vendor:
(a) does not serve a valid Completion Accounts Dispute Notice prior to the expiry of the Initial Agreement Period; or
(b) during the Initial Agreement Period confirms by notice in writing its agreement with the Draft Completion Accounts, the Draft WC Statement and the Draft Net Debt Statement (either as delivered in accordance with Clause 5.1 or as modified in such manner as shall be agreed between the Purchaser and the Vendor), the Draft Completion Accounts, the Draft WC Statement and the Draft Net Debt Statement shall constitute the Completion Accounts, the Purchaser shall procure that a physical inventory of the stock of each member of the Group and each Business is taken in accordance with normal procedures as soon as practicable and in any event within two Business Days after Completion. The Seller and/or the Seller's Accountants shall be entitled to attend the stock-take.
5.2 The Purchaser shall procure that each member of the Group and each Business prepares and submits to the Seller and the Seller's Accountants:
(A) the sales flash (being details of the actual sales made by the Group and the Businesses for the month or part month ending on the Completion Date) as soon as practicable but in any event by midnight at the end of the seventh Business Day after Completion;
(B) management accounts of the Group and the Businesses for the month or part month ending on the Completion Date and a cash report of the Group as at the Completion Date as soon as practicable but in any event by midnight at the end of the tenth Business Day after Completion; and
(C) the consolidation returns for the Group and the Businesses as at the Completion Date by midnight at the end of the 20th Business Day after Completion.
5.3 The Seller shall (at its own expense) procure that the Seller's Accountants prepare the Completion Accounts (from the consolidation returns referred to in clause 5.2), the calculation of the working Capital Benchmark and the Completion Statement, in compliance with the provisions of Schedule 9 and shall procure that the Seller's Accountants produce a written report addressed to the Seller on such compliance. The Seller shall, within 45 Business Days of Completion, or, if later, 25 Business Days after the delivery of the consolidation returns pursuant to clause 5.2, procure the delivery to the Purchaser of the Completion Accounts, the calculation of the Working Capital Benchmark, the Completion WC Statement and the Seller's Accountants report.
5.4 The Purchaser shall be entitled at any time within Net Debt Statement for the period expiring 20 Business Days after receipt purposes of the Completion Accounts, the calculation of the Working Capital Benchmark, the Completion Statement and the Seller's Accountants report to dispute the Completion Accounts, the calculation of the Working Capital Benchmark and/or the Completion Statement by notice in writing (a "Dispute Notice") to the Seller setting out preliminary grounds for dispute. If no Dispute Notice is given by the Purchaser before the expiry of such 20 Business Day period, the Completion Accounts, the calculation of the working Capital Benchmark and the Completion Statement shall be deemed to have been agreed by the Seller and the Purchaser this Agreement and shall be final and binding on the Seller Purchaser and the Purchaser. The Purchaser shall, if it has not served Vendor.
5.5 If the Vendor does serve a valid Completion Accounts Dispute Notice, be entitled to notify the Seller Notice prior to the expiry of such the Initial Agreement Period, then the Vendor and the Purchaser shall meet and discuss the Completion Accounts Disputed Matters and (acting in good faith) shall use their respective reasonable endeavours (in conjunction with their respective accountants) to reach agreement on the Completion Accounts Disputed Matters as soon as reasonably practicable and in any event within the period of 20 Business Day Days following the date of service of the Completion Accounts Dispute Notice (or such longer period that as may be agreed in writing between the Vendor and the Purchaser) (the "Completion Accounts Dispute Resolution Period") and either:
(a) if the Purchaser and the Vendor reach agreement on the Completion Accounts Disputed Matters during the Completion Accounts Dispute Resolution Period, the Draft Completion Accounts, the Draft WC Statement and the Draft Net Debt Statement shall be modified to reflect such agreement and, as so modified, shall constitute the Completion Accounts, the calculation of the Working Capital Benchmark WC Statement and the Completion Net Debt Statement are agreed and that for the Purchaser does not intend to serve a Dispute Notice and following any such notification the Completion Accounts, the Calculation purposes of the Working Capital Benchmark and the Completion Statement shall be deemed to be agreed by the Seller and the Purchaser this Agreement and shall be final and binding on the Seller Vendor and the Purchaser; or
(b) if the Purchaser and the Vendor do not reach agreement on the Completion Accounts Disputed Matters prior to the expiry of the Completion Accounts Dispute Resolution Period, then either the Purchaser or the Vendor may refer the Completion Accounts Disputed Matters to an Independent Firm in accordance with Clause 8.
5.5 5.6 The Seller Purchaser and the Purchaser Vendor shall use all reasonable endeavours to resolve any dispute(s) bear their own respective costs incurred in connection with the preparation, review and agree finalisation of the Draft Completion Accounts, the Draft WC Statement, the Draft Net Debt Statement, the Completion Accounts, the calculation WC Statement and the Net Debt Statement and the agreement or determination of the Working Capital Benchmark Value and the Net Debt (including any costs incurred in connection with any reference to an Independent Firm pursuant to Clause 5.5).
5.7 The Vendor and the Purchaser shall provide to each other access, on reasonable notice during Business Hours and subject to reasonable monitoring or supervision, to such documents and information as are in their possession or under their control (other than the working papers of any of their professional advisers) and to relevant personnel, as may in any case reasonably be requested for the purpose of preparing or reviewing the Draft Completion Accounts, the Draft WC Statement, the Draft Net Debt Statement, the Completion Accounts, the WC Statement within 20 Business Days of and the date of receipt of a Net Debt Statement and any Completion Accounts Dispute Notice as the case may be, provided that nothing shall require any party to disclose or provide access to any documents or information which are legally privileged or which that party is required by the Sellerlaw or other legally binding obligation to keep confidential. If they fail to do so by the expiry of such 20 Business Day period, any matter in dispute The inspecting party shall be referred entitled, at its own cost to the Independent Accountants (acting as experts take copies of all such documents and not as arbitrators). "information that it is entitled to inspect under this Clause 5.7.
Appears in 1 contract
Completion Accounts. 5.1 For the purpose 7.1 The Sellers shall use their reasonable endeavours to ensure that a draft of preparing the Completion Accounts, the Purchaser shall procure that a physical inventory of the stock of each member of the Group and each Business Accounts is taken in accordance with normal procedures prepared as soon as practicable possible after Completion and in any event within two delivered to the Buyer on or before the date falling 20 Business Days after Completion. , together with the Net Current Liability Statement signed by the Sellers.
7.2 The Seller and/or the Seller's Accountants Completion Accounts shall be entitled to attend drawn up in accordance with the stock-takeaccounting bases, methods and policies set out in part 2 of schedule 9.
5.2 7.3 The Purchaser shall procure that each member of the Group and each Business prepares and submits to the Seller and the Seller's Accountants:
(A) the sales flash (being details of the actual sales made by the Group and the Businesses for the month or part month ending on the Completion Date) as soon as practicable but in any event by midnight at the end of the seventh Business Day after Completion;
(B) management accounts of the Group and the Businesses for the month or part month ending on the Completion Date and a cash report of the Group as at the Completion Date as soon as practicable but in any event by midnight at the end of the tenth Business Day after Completion; and
(C) the consolidation returns for the Group and the Businesses as at the Completion Date by midnight at the end of the 20th Business Day after Completion.
5.3 The Seller shall (at its own expense) procure that the Seller's Accountants prepare the draft Completion Accounts (from the consolidation returns referred to in clause 5.2), and the calculation of the working Capital Benchmark and Net Current Liability Value set out in the Completion Statement, in compliance with Net Current Liability Statement shall be deemed agreed by the provisions of Schedule 9 and shall procure that Buyer on the Seller's Accountants produce a written report addressed to the Seller on such compliance. The Seller shall, within 45 Business Days of Completion, or, if later, 25 date falling 10 Business Days after the delivery of the consolidation returns pursuant to clause 5.2, procure the delivery date on which those documents are first delivered to the Purchaser of the Completion Accounts, the calculation of the Working Capital Benchmark, the Completion Statement and the Seller's Accountants report.
5.4 The Purchaser shall be entitled at any time within the period expiring 20 Business Days after receipt of the Completion Accounts, the calculation of the Working Capital Benchmark, the Completion Statement and the Seller's Accountants report to dispute the Completion Accounts, the calculation of the Working Capital Benchmark and/or the Completion Statement by notice in writing (a "Dispute Notice") to the Seller setting out preliminary grounds for dispute. If no Dispute Notice is given by the Purchaser before the expiry of such 20 Business Day period, the Completion Accounts, the calculation of the working Capital Benchmark and the Completion Statement shall be deemed to have been agreed by the Seller and the Purchaser Buyer and shall be final and binding on the Seller parties for all purposes (and shall respectively constitute the Completion Accounts for the purposes of this Agreement and the Purchaser. The Purchaser shallNet Current Liability Value for the purposes of clause 6), if it has not served a Dispute Notice, be entitled to notify unless during that period the Seller prior Buyer gives notice to the expiry of such 20 Business Day period Sellers that the Completion Accounts, it disagrees with the calculation of the Working Capital Benchmark Net Current Liability included in the Net Current Liability Statement. Any notice so given shall include reasonable details (so far as practicable) of the reasons for any disagreement and any suggested adjustment, together with reasonable supporting evidence for each adjustment, including any relevant working papers.
7.4 If any notice is so served by the Buyer during such 10 Business Day period, the Buyer and the Sellers shall attempt in good faith to resolve any matters in dispute and agree a final form of Completion Statement are agreed Accounts and that the Purchaser does not intend to serve a Dispute Notice and following any such notification the Completion Accounts, the Calculation calculation of the Working Capital Benchmark Net Current Liability Value on or before the date falling 10 Business Days after the date on which the Sellers receive that notice. The Completion Accounts and the Completion Statement shall be deemed to be calculation of the Net Current Liability Value so agreed by the Seller and the Purchaser and them shall be final and binding on the Seller parties for all purposes (and shall respectively constitute the Completion Accounts for the purposes of this Agreement and the Purchaser.
5.5 The Seller Net Current Liability Value for the purposes of clause 6). In the absence of agreement between the Buyer and the Purchaser shall use all reasonable endeavours to resolve any dispute(s) and agree the Completion AccountsSellers within that time period, the Independent Accountants shall be instructed to deliver a determination of the matters in dispute and a calculation of the Working Capital Benchmark amount of the Net Current Liability Value and revised Completion Accounts adjusted only to take account of the matters determined by them. As so revised, the Completion Statement within 20 Business Days Accounts shall then constitute the Completion Accounts for the purposes of this Agreement.
7.5 Each party shall promptly provide to the date of receipt of a Dispute Notice by other or the Seller. If they fail to do so by the expiry of such 20 Business Day period, any matter in dispute shall be referred other’s accountants or professional advisers (and to the Independent Accountants Accountants) all such documents and information as may reasonably be requested for the purpose of preparing or reviewing the Completion Accounts and the Net Current Liability Statement. The parties’ obligations under this clause shall, without limitation, extend to providing access to or copies of all working papers in their possession or under their control (acting as experts other than those created by their respective accountants) created in the course of the preparation and/or review of the Completion Accounts and/or Net Current Liability Statement, together (in the case of the Buyer) with extracts from the Company’s and not as arbitrators). "the Business’s accounting records to which the working papers relate or from which the working papers have drawn information, and access upon reasonable notice and during normal working hours to relevant personnel, and to relevant records and information within the possession or under the control, of the relevant party.
Appears in 1 contract
Samples: Agreement for the Sale and Purchase of Shares (TRM Corp)
Completion Accounts. 5.1 For the purpose of preparing the Completion Accounts, the Purchaser shall procure that a physical inventory of the stock of each member of the Group and each Business is taken in accordance with normal procedures as 4.1 As soon as practicable possible after Completion and in any event within two on or before the date falling 10 Business Days after Completion. The Seller and/or Completion (the Seller's Accountants shall be entitled Completion Accounts Deadline), the Sellers will procure that the Completion Accounts are prepared and sent to attend the stock-takeBuyer.
5.2 4.2 The Purchaser shall procure that each member Completion Accounts must be prepared in accordance with Part A of the Group Schedule 4 and each Business prepares and submits to the Seller and the Seller's Accountantsinclude:
(A) the sales flash (being details of the actual sales made by the Group and the Businesses for the month or part month ending on the Completion Date) as soon as practicable but in any event by midnight at the end of the seventh Business Day after Completion;
(B) management accounts of the Group and the Businesses for the month or part month ending on the Completion Date and 4.2.1 a cash report consolidated balance sheet of the Group as at the close of business on the date of Completion Date as soon as practicable but in any event by midnight at the end and a consolidated profit and loss account of the tenth Business Day after Completion; and
(C) the consolidation returns Group for the Group period from and excluding the Accounts Date up to and including the date of Completion in the format set out in Part B of Schedule 4;
4.2.2 a calculation and identification of the amount of the Net Asset Value, a pro forma for which is included in Part B of Schedule 4. If there is any inconsistency or conflict between the definition of Net Asset Value and the Businesses as at proforma, the definition will prevail;
4.2.3 a calculation and identification of the amount of the Completion Date by midnight at TTM Gross Profit, a pro forma for which is included in Part B of Schedule 4. If there is any inconsistency or conflict between the end definition of Completion TTM Gross Profit and the 20th proforma, the definition will prevail,
4.3 The Buyer may on or before the date falling 10 Business Day Days after Completion.
5.3 The Seller shall (at its own expense) procure that submission to the Seller's Accountants prepare Buyer of the Completion Accounts (from the consolidation returns referred to in clause 5.2Response Deadline), notify the calculation of Sellers in writing (the working Capital Benchmark and the Completion Statement, in compliance with the provisions of Schedule 9 and shall procure Response Notice) that the Seller's Accountants produce a written report addressed to the Seller on such compliance. The Seller shall, within 45 Business Days of Completion, or, if later, 25 Business Days after the delivery of the consolidation returns pursuant to clause 5.2, procure the delivery to the Purchaser of Buyer does not agree the Completion Accounts, setting out in reasonable detail the calculation items in dispute and the adjustments (with a suitable explanation) which, in the opinion of the Working Capital Benchmark, Buyer are required to be made. The items not identified in the Completion Statement and the Seller's Accountants report.
5.4 The Purchaser shall Response Notice as being in dispute will be entitled at any time within the period expiring 20 Business Days after receipt of the Completion Accounts, the calculation of the Working Capital Benchmark, the Completion Statement and the Seller's Accountants report deemed to dispute the Completion Accounts, the calculation of the Working Capital Benchmark and/or the Completion Statement by notice in writing (a "Dispute Notice") to the Seller setting out preliminary grounds for disputebe agreed. If no Dispute Response Notice is given received by the Purchaser Sellers on or before the expiry of such 20 Business Day periodResponse Deadline, the Completion Accounts, the calculation of the working Capital Benchmark and the Completion Statement shall Buyer will be deemed to have been agreed by accepted the Seller Completion Accounts as being in accordance with this agreement, and the Purchaser Completion Accounts and shall the amount of the Net Asset Value and the amount of Completion TTM Gross Profit stated in them will be final and binding on the Seller parties.
4.4 If a Response Notice is received by the Sellers on or before the Response Deadline, the Sellers and the PurchaserBuyer will have until the date falling 10 Business Days after the date on which the Response Notice is received (the Resolution Date) to agree the items in dispute and therefore the amount of the Net Asset Value and/or Completion TTM Gross Profit. The Purchaser shall, if it has not served a Dispute Notice, be entitled to notify the Seller prior to the expiry of such 20 Business Day period that the Completion Accounts, the calculation amount of the Working Capital Benchmark and Net Asset Value and/or Completion TTM Gross Profit so agreed will (in the Completion Statement are agreed and that the Purchaser does not intend to serve a Dispute Notice and following any such notification the Completion Accounts, the Calculation absence of the Working Capital Benchmark and the Completion Statement shall be deemed to be agreed by the Seller and the Purchaser and shall fraud or manifest error) be final and binding on the Seller parties.
4.5 If a Response Notice is given and the Purchaser.
5.5 The Seller and the Purchaser shall use all reasonable endeavours to resolve any dispute(s) and agree the Completion Accounts, the calculation amount of the Working Capital Benchmark Net Asset Value and/or Completion TTM Gross Profit does not become final and the Completion Statement within 20 Business Days of the date of receipt of a Dispute Notice binding under clause 4.4 by the Seller. If they fail to do so by Resolution Date then the expiry of such 20 Business Day period, any matter matters outstanding or in dispute shall must be referred to the Independent Expert for final decision in accordance with clause 5 of this agreement. The Expert will decide:
4.5.1 the matters outstanding or in dispute and therefore what revisions (if any) are required to be made to the Completion Accounts in order for them to comply with this clause 4; and
4.5.2 the amount of the Net Asset Value and/or Completion TTM Gross Profit.
4.6 Each party must procure (so far as such party is able) that the Sellers and the Buyer and the Accountants are given any documents and information as are reasonably required by the other (acting as experts but not including advice on the Completion Accounts given to a party by its own Accountants) for the purpose of preparing or reviewing the Completion Accounts and not as arbitrators). "access on reasonable notice and during normal working hours to relevant personnel, records and information in the control of the relevant party.
4.7 The Sellers and the Buyer will each pay the costs of their own Accountants.
4.8 No claim which the Buyer or the Company may have against the Sellers in respect of any breach of any of the Warranties or any other provision of this agreement will be affected, waived or limited by the determination of the Net Asset Value and/or Completion TTM Gross Profit under this agreement except to the extent provided in paragraph 5.1.1 of Schedule 7.
Appears in 1 contract
Samples: Agreement to Buy the Shares (Staffing 360 Solutions, Inc.)
Completion Accounts. 5.1 For The Completion Accounts shall consist of a consolidated statement of financial position of the purpose Target Group as at the close of preparing business on 31 August 2017 and a consolidated statement of comprehensive income of the Target Group in respect of the Completion Period, together with a net assets statement setting out the amount of the Actual Net Assets (as at the close of business on 31 August 2017) as derived from the Completion Accounts, the Purchaser shall procure that a physical inventory of the stock of each member of the Group and each Business is taken . The Completion Accounts must be prepared in accordance with normal procedures as Part A and Part B of Schedule 8, a pro forma for which is included in Part C of Schedule 8.
5.2 As soon as practicable possible after Completion and in any event within two on or before the date falling 30 Business Days after CompletionCompletion (the Completion Accounts Deadline), the Sellers shall prepare the draft Completion Accounts and deliver them to the Buyer for review. The Seller and/or the Seller's Accountants Buyer shall be entitled to attend the stock-take.
5.2 The Purchaser give (and shall procure that each member Target Group Company shall give) such assistance and access to information as the Sellers (or their advisers) may reasonably require in connection with the preparation of the Group and each Business prepares and submits to the Seller and the Seller's Accountants:
(A) the sales flash (being details of the actual sales made by the Group and the Businesses for the month or part month ending on the draft Completion Date) as soon as practicable but in any event by midnight at the end of the seventh Business Day after Completion;
(B) management accounts of the Group and the Businesses for the month or part month ending on the Completion Date and a cash report of the Group as at the Completion Date as soon as practicable but in any event by midnight at the end of the tenth Business Day after Completion; and
(C) the consolidation returns for the Group and the Businesses as at the Completion Date by midnight at the end of the 20th Business Day after CompletionAccounts during such period.
5.3 The Seller shall (at its own expense) procure that Buyer may on or before the Seller's Accountants prepare the Completion Accounts (from the consolidation returns referred to in clause 5.2), the calculation of the working Capital Benchmark and the Completion Statement, in compliance with the provisions of Schedule 9 and shall procure that the Seller's Accountants produce a written report addressed to the Seller on such compliance. The Seller shall, within 45 Business Days of Completion, or, if later, 25 Business Days after the delivery of the consolidation returns pursuant to clause 5.2, procure the delivery to the Purchaser of the Completion Accounts, the calculation of the Working Capital Benchmark, the Completion Statement and the Seller's Accountants report.
5.4 The Purchaser shall be entitled at any time within the period expiring date falling 20 Business Days after receipt submission to the Buyer of the draft Completion AccountsAccounts (the Response Deadline), notify the calculation Sellers' Representative (on behalf of all the Working Capital Benchmark, the Completion Statement and the Seller's Accountants report to dispute the Completion Accounts, the calculation of the Working Capital Benchmark and/or the Completion Statement by notice Sellers) in writing (the Response Notice) that the Buyer does not agree with the draft Completion Accounts (and/or the net assets statement setting out the amount of the Actual Net Assets as at the close of business on 31 August 2017), setting out in reasonable detail the items in dispute and the adjustments (with a "Dispute Notice"suitable explanation) which, in the opinion of the Buyer is required to be made, and the amount of the Actual Net Assets calculated by the Buyer after giving effect to the Seller setting out preliminary grounds for disputeitems detailed in the Response Notice (the Response XXX Amount). The items not identified in the Response Notice as being in dispute will be deemed to be agreed. If no Dispute Response Notice is given received by the Purchaser Sellers’ Representative on or before the expiry of such 20 Business Day periodResponse Deadline, the Completion Accounts, the calculation of the working Capital Benchmark and the Completion Statement shall Buyer will be deemed to have been agreed by accepted the Seller draft Completion Accounts as being in accordance with this agreement, and the Purchaser draft Completion Accounts and shall the amount of the Actual Net Assets stated in them will be final and binding on the Seller parties.
5.4 If a Response Notice is received by the Sellers' Representative on or before the Response Deadline, the Sellers' Representative and the PurchaserBuyer will have until the date falling 20 Business Days after the date on which the Response Notice is received (the Resolution Date) to agree to accept the Response XXX Amount or in the alternative agree the items in dispute and therefore the Completion Accounts and the amount of the Actual Net Assets. The Purchaser shallaccepted Response XXX Amount, if it has not served a Dispute Notice, be entitled to notify or the Seller prior to the expiry of such 20 Business Day period that the Completion Accounts, the calculation amount of the Working Capital Benchmark and Actual Net Assets so agreed, will (in the Completion Statement are agreed and that the Purchaser does not intend to serve a Dispute Notice and following any such notification the Completion Accounts, the Calculation absence of the Working Capital Benchmark and the Completion Statement shall be deemed to be agreed by the Seller and the Purchaser and shall fraud or manifest error) be final and binding on the Seller and the Purchaserparties.
5.5 The Seller If a Response Notice is received by the Sellers’ Representative on or before the Response Deadline and the Purchaser shall use all reasonable endeavours to resolve any dispute(s) and agree draft Completion Accounts and/or the Completion Accounts, the calculation amount of the Working Capital Benchmark Actual Net Assets does not become final and the Completion Statement within 20 Business Days of the date of receipt of a Dispute Notice binding under clause 5.4 by the Seller. If they fail to do so by Resolution Date then the expiry of such 20 Business Day period, any matter matters outstanding or in dispute shall must be referred to the Independent Expert for final decision in accordance with clause 6 of this agreement. The Expert will decide:
5.5.1 the matters outstanding or in dispute and therefore what revisions (if any) are required to be made to the draft Completion Accounts in order for them to comply with this clause 5 and Schedule 8; and
5.5.2 the amount of the Actual Net Assets and the amount of the Net Asset Shortfall.
5.6 Each party must procure (so far as such party is able) that the Sellers' Representative and the Buyer and their respective Accountants are given any documents and information as are reasonably required by the other (acting but not including advice on the Completion Accounts given to a party by its own Accountants) for the purpose of preparing or reviewing the Completion Accounts and access on reasonable notice and during normal working hours to relevant personnel, records and information in the control of the relevant party.
5.7 The Sellers and the Buyer will each pay the costs of their own Accountants.
5.8 No claim which the Buyer or any Target Group Company may have against the Sellers in respect of any breach of any of the Warranties or any other provision of this agreement will be affected, waived or limited by the determination of the Actual Net Assets under this agreement except to the extent provided in Schedule 4 (Sellers’ Limits) or the Tax Schedule.
5.9 The Net Asset Shortfall amount shall be calculated as experts follows:
5.9.1 if the amount of the Actual Net Assets (as agreed or determined in accordance with this clause 5 and not Schedule 8) is an amount which is equal to, or in excess of, the Target Net Asset Amount, then the amount of the Net Asset Shortfall shall be zero, and no payment shall be made to the Buyer pursuant to clause 3.5; or
5.9.2 if the amount of the Actual Net Assets (as arbitrators). "agreed or determined in accordance with this clause 5 and Schedule 8) is an amount which is less than the Target Net Asset Amount, then the amount of the Net Asset Shortfall shall be the amount by which the amount of the Actual Net Assets (as agreed or determined in accordance with this clause 5 and Schedule 8) is less than the Target Net Asset Amount.
Appears in 1 contract
Samples: Agreement to Buy the Shares in CBS Butler Holdings Limited (Staffing 360 Solutions, Inc.)
Completion Accounts. 5.1 For the purpose 7.1 The Seller shall use its reasonable endeavours to ensure that a draft of preparing the Completion Accounts, the Purchaser shall procure that a physical inventory of the stock of each member of the Group and each Business Accounts is taken in accordance with normal procedures prepared as soon as practicable possible after Completion and in any event within two delivered to the Buyer on or before the date falling 20 Business Days after Completion. The Seller and/or , together with the Net Current Liability Statement signed by the Seller's Accountants .
7.2 The Completion Accounts shall be entitled to attend drawn up in accordance with the stock-takeaccounting bases, methods and policies set out in part 2 of schedule 10.
5.2 7.3 The Purchaser shall procure that each member of the Group and each Business prepares and submits to the Seller and the Seller's Accountants:
(A) the sales flash (being details of the actual sales made by the Group and the Businesses for the month or part month ending on the Completion Date) as soon as practicable but in any event by midnight at the end of the seventh Business Day after Completion;
(B) management accounts of the Group and the Businesses for the month or part month ending on the Completion Date and a cash report of the Group as at the Completion Date as soon as practicable but in any event by midnight at the end of the tenth Business Day after Completion; and
(C) the consolidation returns for the Group and the Businesses as at the Completion Date by midnight at the end of the 20th Business Day after Completion.
5.3 The Seller shall (at its own expense) procure that the Seller's Accountants prepare the draft Completion Accounts (from the consolidation returns referred to in clause 5.2), and the calculation of the working Capital Benchmark and Net Current Liability Value set out in the Completion Statement, in compliance with Net Current Liability Statement shall be deemed agreed by the provisions of Schedule 9 and shall procure that Buyer on the Seller's Accountants produce a written report addressed to the Seller on such compliance. The Seller shall, within 45 Business Days of Completion, or, if later, 25 date falling 10 Business Days after the delivery of the consolidation returns pursuant to clause 5.2, procure the delivery date on which those documents are first delivered to the Purchaser of the Completion Accounts, the calculation of the Working Capital Benchmark, the Completion Statement and the Seller's Accountants report.
5.4 The Purchaser shall be entitled at any time within the period expiring 20 Business Days after receipt of the Completion Accounts, the calculation of the Working Capital Benchmark, the Completion Statement and the Seller's Accountants report to dispute the Completion Accounts, the calculation of the Working Capital Benchmark and/or the Completion Statement by notice in writing (a "Dispute Notice") to the Seller setting out preliminary grounds for dispute. If no Dispute Notice is given by the Purchaser before the expiry of such 20 Business Day period, the Completion Accounts, the calculation of the working Capital Benchmark and the Completion Statement shall be deemed to have been agreed by the Seller and the Purchaser Buyer and shall be final and binding on the Seller parties for all purposes (and shall respectively constitute the Completion Accounts for the purposes of this Agreement and the Purchaser. The Purchaser shallNet Current Liability Value for the purposes of clause 6), if it has not served a Dispute Notice, be entitled unless during that period the Buyer gives notice to notify the Seller prior to the expiry of such 20 Business Day period that the Completion Accounts, it disagrees with the calculation of the Working Capital Benchmark Net Current Liability included in the Net Current Liability Statement. Any notice so given shall include reasonable details (so far as practicable) of the reasons for any disagreement and any suggested adjustment, together with reasonable supporting evidence for each adjustment, including any relevant working papers.
7.4 If any notice is so served by the Buyer during such 10 Business Day period, the Buyer and the Seller shall attempt in good faith to resolve any matters in dispute and agree a final form of Completion Statement are agreed Accounts and that the Purchaser does not intend to serve a Dispute Notice and following any such notification the Completion Accounts, the Calculation calculation of the Working Capital Benchmark Net Current Liability Value on or before the date falling 10 Business Days after the date on which the Sellers receive that notice. The Completion Accounts and the Completion Statement shall be deemed to be calculation of the Net Current Liability Value so agreed by the Seller and the Purchaser and them shall be final and binding on the Seller parties for all purposes (and shall respectively constitute the Completion Accounts for the purposes of this Agreement and the Purchaser.
5.5 The Seller Net Current Liability Value for the purposes of clause 6). In the absence of agreement between the Buyer and the Purchaser shall use all reasonable endeavours to resolve any dispute(s) and agree the Completion AccountsSeller within that time period, the Independent Accountants shall be instructed to deliver a determination of the matters in dispute and a calculation of the Working Capital Benchmark amount of the Net Current Liability Value and revised Completion Accounts adjusted only to take account of the matters determined by them. As so revised, the Completion Statement within 20 Business Days Accounts shall then constitute the Completion Accounts for the purposes of this Agreement.
7.5 Each party shall promptly provide to the date of receipt of a Dispute Notice by other or the Seller. If they fail to do so by the expiry of such 20 Business Day period, any matter in dispute shall be referred other’s accountants or professional advisers (and to the Independent Accountants Accountants) all such documents and information as may reasonably be requested for the purpose of preparing or reviewing the Completion Accounts and the Net Current Liability Statement. The parties’ obligations under this clause shall, without limitation, extend to providing access to or copies of all working papers in their possession or under their control (acting as experts other than those created by their respective accountants) created in the course of the preparation and/or review of the Completion Accounts and/or Net Current Liability Statement, together (in the case of the Buyer) with extracts from the Seller’s accounting records to which the working papers relate or from which the working papers have drawn information, and not as arbitrators). "access upon reasonable notice and during normal working hours to relevant personnel, and to relevant records and information within the possession or under the control, of the relevant party.
Appears in 1 contract
Samples: Agreement for the Sale and Purchase of Business and Assets (TRM Corp)
