Completion Accounts. 5.1 The Buyer and the Seller shall use all reasonable endeavours to procure that, promptly after Completion, Completion Accounts in relation to the Target Group, together with a statement in the format set out in part 2 of schedule 5 (the “Statement”) of the Working Capital Amount as at close of business on the Completion Date, are prepared in accordance with the provisions of this clause 5. The Completion Accounts shall be prepared on the basis of the accounting policies and procedures set out in Part 3 of schedule 5 of this agreement. 5.2 The Seller and the Buyer shall prepare the Completion Accounts and the Statement in conjunction with the Target Group with a view to such draft Completion Accounts and draft Statement being submitted to the Seller within 60 Business Days of Completion. 5.3 Subject to clause 5.7(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 Statement. 5.4 The Seller shall notify the Buyer in writing within 30 Business Days of receipt of such draft Completion Accounts and the draft Statement whether or not it accepts the draft Completion Accounts and draft Statement for the purposes of this agreement. 5.5 If the Seller notifies the Buyer that it does not accept such draft Completion Accounts and draft Statement: (a) it shall, at the same time as it notifies the Buyer that it does not accept such draft Completion Accounts and draft Statement, set out in such notice in writing its reasons for such non-acceptance and specify the adjustments which, in its opinion, should be made to the draft Completion Accounts and the draft 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 draft Statement and will provide each other with such information and explanations and access to working papers as may be reasonably and properly required by the other for their purpose; in each case, within 20 Business Days of the Seller’s notice of non-acceptance pursuant to clause 5.4 (or such other time as the parties may agree in writing). 5.6 If the Seller is satisfied with the draft Completion Accounts and the draft 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 draft Statement within the 30 Business Day period referred to in clause 5.4, then the draft Completion Accounts and the draft Statement (incorporating any agreed adjustments) shall constitute the Completion Accounts and the Statement for the purposes of this agreement. 5.7 If the Seller and the Buyer do not reach agreement within the 20 Business Day period referred to in clause 5.5(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 Chairman for the time being of the Ulster Society of the Institute of Chartered Accountants in Ireland 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 5.7(b)) prepare and deliver to the firm a written statement on the matters in dispute (together with the relevant documents); (b) the firm shall be requested to give its decision as soon as is reasonably practicable after its appointment and in any event by not later than 30 Business Days after 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 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 and the Arbitration (Northern Ireland) Order 1996 shall not apply) 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. 5.8 When the Seller and the Buyer reach (or pursuant to clause 5.6 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 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 and shall be final and binding on the parties; and (b) the Working Capital Amount as at close of business on the Completion Date, shall be as set out in the Statement. 5.9 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 shall procure that each member of the Seller’s Group shall, and the Buyer shall procure that the Target 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 Target Group, as the case may be, including access at all reasonable times to all Seller’s Group and Target 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 5.9.
Appears in 1 contract
Completion Accounts. 5.1 4.1 The Buyer Purchaser shall procure as soon as practicable and the Seller shall use all reasonable endeavours to procure that, promptly in any event within 60 days after Completion, the preparation of the Completion Accounts in relation to the Target Group, together with a statement in the format set out in part 2 of schedule 5 (the “Statement”) of the Working Capital Amount as at close of business on the Completion Date, are prepared in accordance with the provisions requirements of this clause 5. Clause 4 by the Purchaser's Auditors, who shall also be instructed to certify the amounts of the Net Assets in the Agreed Form.
4.2 In respect of the preparation of the Completion Accounts and the determination of the Net Assets the Parties shall respectively:
(a) give or procure that the Purchaser's Auditors and any Independent Chartered Accountant upon reasonable notice are given prompt access at all reasonable times to and to take copies of all books and records relating to the Company which are in the possession or under the control of the Vendor or the Purchaser or the Company as the case may be; and
(b) generally provide the Purchaser's Auditors and any Independent Chartered Accountant promptly with such other information and assistance as they may reasonably require including access to and assistance at reasonable times from personnel employed by the Vendor or the Purchaser or the Company as the case may be.
4.3 The Completion Accounts shall be prepared in accordance with all applicable law FRS's and SSAP's and generally accepted United Kingdom accounting principles and (so far as not inconsistent therewith) on the basis same principles methods and bases as adopted in drawing up the Last Accounts consistently applied.
4.4 The Purchaser's Auditors shall be instructed to state in writing to the Vendor and the Purchaser whether in their opinion the Completion Accounts give a true and fair view of the state of affairs of the Company as at such date and to report directly to the Purchaser and the Vendor if and to the extent that there have been any changes in accounting policies and procedures set out principles used in Part 3 the Completion Accounts (whether as a result of schedule 5 of this agreementchanges in the law or UK accounting principles or otherwise).
5.2 4.5 The Seller Purchaser's Auditors shall (as soon as practicable, and in any event within 60 days after Completion) deliver contemporaneously to the Vendor and the Buyer shall prepare Purchaser copies of the Completion Accounts and the Statement certificate of the Purchaser's Auditors as to the amount of the Net Assets in conjunction with the Target Group with a view Agreed Form.
4.6 Either Party shall be entitled to such draft object to the Completion Accounts and draft Statement being submitted by written notice to the Seller other within 60 Business Days 28 days of Completion.
5.3 Subject to clause 5.7(e), the Seller and the Buyer shall each bear their own costs and expenses arising out of the preparation and review receipt of the Completion Accounts pursuant to Clause 4.5 and Statementif no such objection is made the Parties shall be deemed to accept the Completion Accounts at the end of such 28 day period.
5.4 4.7 The Seller Purchaser shall notify procure that the Buyer in writing within 30 Business Days of receipt of such draft Completion Accounts Vendor and the draft Statement whether or not it accepts the draft Completion Accounts and draft Statement for the purposes of this agreement.
5.5 If the Seller notifies the Buyer that it does not accept such draft Completion Accounts and draft Statement:
(a) it shall, at the same time as it notifies the Buyer that it does not accept such draft Completion Accounts and draft Statement, set out in such notice in writing its reasons for such non-acceptance and specify the adjustments which, in its opinion, should Company's Auditors shall be made to the draft Completion Accounts and the draft 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 draft Statement and will provide each other with given such information and explanations and assistance as they may reasonably require including access to working the Purchaser's Auditors and to the books, records, papers as may be reasonably and properly required by other documents relating to the Company, and to take copies of all such books, records, papers and other for their purpose; documents which are in each case, within 20 Business Days the possession of the Seller’s notice Company or the Purchaser's Auditors, for the purpose of non-acceptance pursuant to clause 5.4 (or such other time as the parties may agree in writing).
5.6 If the Seller is satisfied with the draft Completion Accounts and the draft 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 draft Statement within the 30 Business Day period referred to in clause 5.4, then the draft Completion Accounts and the draft Statement (incorporating any agreed adjustments) shall constitute verifying the Completion Accounts and the Statement for certificate of the purposes Purchaser's Auditors as to the amount of Net Assets provided that any information obtained by the Vendor or the Company's Auditors pursuant to this agreementClause 4.7 shall be kept strictly confidential by the Vendor or the Company's Auditors.
5.7 If 4.8 In the Seller event that notice of objection is given pursuant to clause 4.6 the Vendor and the Buyer do Purchaser shall use their reasonable endeavours to agree any amendments to the Completion Accounts within 14 days after the giving of such notice of objection.
4.9 In the event that agreement cannot reach agreement be reached within the 20 Business Day said period of 14 days the matter in dispute shall be referred to in clause 5.5(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 accountant (being the "Independent Chartered Accountant") to be agreed upon by between the Seller and the Buyer parties or, failing agreementin the absence of agreement as to the identity of the Independent Chartered Accountant within 7 days after the expiry of such 14 day period, to be selected, on the application of either the Seller or the Buyer, nominated by the Chairman President for the time being of the Ulster Society of the Institute of Chartered Accountants in Ireland or his duly appointed deputy (the “firm”)England and Wales on application of either party. 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 5.7(b)) prepare and deliver to the firm a written statement on the matters in dispute (together with the relevant documents);
(b) the firm shall be requested to give its decision as soon as is reasonably practicable after its appointment and in any event by not later than 30 Business Days after 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 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 Such Independent Chartered Accountant shall act as an expert (and not as an arbitrator and the Arbitration (Northern Ireland) Order 1996 his decision shall not apply) 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.
5.8 When the Seller and the Buyer reach (or pursuant to clause 5.6 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 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 and shall be final and binding on the parties; and
(b) the Working Capital Amount as at close . The cost of business on the Completion Date, his appointment shall be as set out in borne equally by the Statementparties.
5.9 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 shall procure that each member of the Seller’s Group shall, and the Buyer shall procure that the Target 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 Target Group, as the case may be, including access at all reasonable times to all Seller’s Group and Target 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 5.9.
Appears in 1 contract
Samples: Share Sale and Purchase Agreement (Krug International Corp)
Completion Accounts. 5.1 The Buyer (1) As soon as reasonably practicable after Completion and in any event within 15 business days of Completion the Purchaser shall procure that the Company prepares and delivers to the Seller shall use all reasonable endeavours to procure that, promptly after Completion, Completion Accounts in relation to the Target Group, together with a statement in the format set out in part 2 of schedule 5 (the “Statement”) draft balance sheet of the Working Capital Amount Company as at the close of business on the Completion Date, are prepared Accounts Date (the "Draft Completion Accounts") and the Seller and Purchaser shall in accordance with good faith use all reasonable endeavours to approve and agree the provisions Draft Completion Accounts as soon as reasonably practicable following delivery by the Purchaser of this clause 5. the Draft Completion Accounts.
(2) The Draft Completion Accounts shall be in the form contained in, and include the items identified in, Schedule 5 and such accounts shall be prepared on by adopting the basis provisions contained in Schedule 5, applying the principles contained in Schedule 5 and otherwise in a manner consistent with the application of the accounting policies and procedures set out in Part 3 of schedule 5 of this agreementpreparing the Accounts.
5.2 The Seller and the Buyer shall prepare the Completion Accounts and the Statement in conjunction with the Target Group with a view to such draft Completion Accounts and draft Statement being submitted to the Seller within 60 Business Days of Completion.
5.3 Subject to clause 5.7(e), (3) If the Seller and the Buyer shall each bear their own costs and expenses arising out Purchaser do not reach agreement on the Draft Completion Accounts within 10 business days of delivery of the preparation and review of the Draft Completion Accounts and Statementeither party may refer the matter(s) in dispute to the Independent Accountant for resolution in accordance with clause 16.
5.4 (4) The Seller Draft Completion Accounts, as approved and agreed in accordance with subclause (1) above or, if subclause (3) above applies, as determined by the Independent Accountant shall notify comprise the Buyer in writing within 30 Business Days of receipt of such draft "Completion Accounts and the draft Statement whether or not it accepts the draft Completion Accounts and draft Statement for the purposes of this agreementAccounts".
5.5 If the Seller notifies the Buyer that it does not accept such draft Completion Accounts and draft Statement:(5) Each party shall (if applicable):
(a) it shall, at disclose to the same time as it notifies other and (if applicable) to the Buyer that it does not accept such draft Completion Accounts Independent Accountant (if so requested) all relevant facts and draft Statement, set out in such notice in writing its reasons for such non-acceptance and specify the adjustments which, information in its opinion, should be made to the draft Completion Accounts and the draft Statement in order to comply with the requirements of this agreementpossession; and
(b) promptly give to the parties shall use all reasonable endeavours to:
(i) meet other and discuss the objections of the Seller; and
(ii) try to reach agreement upon the adjustments (if anyapplicable) required to be made to the draft Completion Accounts and the draft Statement and will provide each other with such information and explanations Independent Accountant, all information, assistance and access to working books of account, documents, files and papers as which either of them may be reasonably and properly required by the other for their purpose; in each caserequire, within 20 Business Days of the Seller’s notice of non-acceptance pursuant to clause 5.4 (or such other time as the parties may agree in writing).
5.6 If the Seller is satisfied with the draft Completion Accounts and the draft 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 draft Statement within the 30 Business Day period referred to in clause 5.4, then the draft Completion Accounts and the draft Statement (incorporating any agreed adjustments) shall constitute the Completion Accounts and the Statement for the purposes of agreeing or determining the matter(s) contemplated by the foregoing provisions of this agreementclause.
5.7 If the Seller and the Buyer do not reach agreement within the 20 Business Day period referred to in clause 5.5(b(6) (or such other time as the parties may agree in writing) then the matters in dispute (and only those) The Independent Accountant shall be referred, entitled (to the extent it considers it appropriate) to rely on the application of information provided or made available by 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 Chairman for the time being of the Ulster Society of the Institute of Chartered Accountants in Ireland 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 5.7(b)) prepare and deliver to the firm a written statement on the matters in dispute (together with the relevant documents);
(b) the firm shall be requested to give its decision as soon as is reasonably practicable after its appointment and in any event by not later than 30 Business Days after 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 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 and the Arbitration (Northern Ireland) Order 1996 shall not apply) 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 Buyerparties.
5.8 When the Seller and the Buyer reach (or pursuant to clause 5.6 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 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 and shall be final and binding on the parties; and
(b) the Working Capital Amount as at close of business on the Completion Date, shall be as set out in the Statement.
5.9 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 shall procure that each member of the Seller’s Group shall, and the Buyer shall procure that the Target 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 Target Group, as the case may be, including access at all reasonable times to all Seller’s Group and Target 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 5.9.
Appears in 1 contract
Completion Accounts. 5.1 4.1 The Buyer and the Seller shall use jointly procure as soon as practicable and in any event within 60 calendar days of the Completion Date that a draft of the Completion Accounts are prepared on the basis of the accounting principles and practices consistently applied during the two previous accounting periods and submitted to the Seller’s Accountants for their consideration. The Completion Accounts shall be prepared by the Buyer’s Accountants in active consultation with Xxxxxx Xxxxxxxx and Xxxxxxx Xxxxxx (who shall have adequate continued access to records and personnel for such purposes only), without cost to the Seller. No change shall be made to the draft which would make the Completion Accounts inconsistent (as to principles and practices) with the Accounts, unless the Buyer and Seller agree in writing. No provision, reserve, or write-off or similar adjustment shall be made or included to the extent that it is necessitated by any act of the Buyer following Completion.
4.2 Notwithstanding the terms of Clause 4.1:
(a) the Completion Accounts will show as forming part of the “Creditors: amounts falling due within one year”, regardless of how that term would otherwise be construed, specific provisions for all reasonable endeavours Tax and sums relating to procure thattax arising as a result of an Event, promptly after or the Profits earned, accrued or received, in the period between the Accounts Date and Completion, in the ordinary course of business of the Company as carried on at Completion. (For the avoidance of doubt, it is agreed between the parties that for the purposes of Clause 4.2, the provisions for Tax in the Accounts are considered to be “specific”);
(b) the Completion Accounts will not contain any provision, reserve or allowance in relation respect of any Tax or sums relating to Tax for any Event or the Profits earned accrued or received:
(i) in the period between the Accounts Date and Completion; or
(ii) at any time before Completion, (save to the Target Group, together with a statement extent specifically made in the format set out in part 2 Accounts); outside the ordinary course of schedule 5 (the “Statement”) business of the Working Capital Amount Company as at close carried on in the twelve month period preceding Completion;
(c) the Completion Accounts will show specific provision, reserve or allowance for or in respect of any Tax or sums relating to Tax equal in total to the provisions in the Accounts except to the extent that it is adjusted by taking into account in the period between the Accounts Date and Completion the payment of any Tax provided for in the Accounts and the Tax which has arisen in the ordinary course of business on of the Company in that period;
(d) no provision for deferred tax will be made in the Completion DateAccounts, are prepared except to the extent that it is otherwise dealt with in accordance with the provisions of sub-clause 4.2 (a) and/or (c);
(e) any reference in this clause 5. The 4.2 to something inside or outside the ordinary course of business of the Company shall be construed in accordance with clause 1.2.13 of the Tax Deed;
(f) no sum received by Digital Vision (US) Limited on or before Completion in respect of the sale of any of its subsidiary companies will be included as part of the “Current Assets” in the Completion Accounts;
(g) the Completion Accounts shall be prepared on the basis that the sale of the accounting policies and procedures set out in Part 3 of schedule 5 of this agreementUS Subsidiaries had neither been contemplated nor completed before Completion.
5.2 4.3 The Seller and the Buyer shall respectively disclose all information necessary to prepare the Completion Accounts and the Statement in conjunction with the Target Group with a view to such draft Completion Accounts and draft Statement being submitted to the Seller within 60 Business Days of Completion.
5.3 Subject to clause 5.7(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 Statement.
5.4 The Seller shall notify the Buyer in writing within 30 Business Days of receipt of such draft Completion Accounts and the draft Statement whether or not it accepts the draft Completion Accounts and draft Statement for the purposes of this agreement.
5.5 If the Seller notifies the Buyer that it does not accept such draft Completion Accounts and draft Statement:
(a) it shall, at the same time as it notifies the Buyer that it does not accept such draft Completion Accounts and draft Statement, set out in such notice in writing its reasons for such non-acceptance and specify the adjustments which, in its opinion, should be made to the draft Completion Accounts and the draft Statement Seller’s Accountants shall be given access to the Buyer’s Accountants’ working papers in order relation to comply with the requirements of this agreement; andCompletion Accounts.
(b) 4.4 The Seller and the parties Buyer shall use all their respective 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 agree the draft Completion Accounts and as soon as reasonably practicable. Failing agreement within 30 calendar days of the draft Statement and will provide each other with such information and explanations and access to working papers as may be reasonably and properly required receipt by the other for their purpose; in each case, within 20 Business Days of the Seller’s notice of non-acceptance pursuant to clause 5.4 (or such other time as the parties may agree in writing).
5.6 If the Seller is satisfied with the draft Completion Accounts and the draft 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 Accountants of the draft Completion Accounts and the draft Statement within the 30 Business Day period referred to in clause 5.4Accounts, then the draft Completion Accounts and the draft Statement (incorporating any agreed adjustments) shall constitute the Completion Accounts and the Statement for the purposes of this agreement.
5.7 If the Seller and the Buyer do not reach agreement within the 20 Business Day period referred to in clause 5.5(b) (dispute or such other time as the parties may agree in writing) then the matters in dispute (and only those) difference relating thereto shall be referred, on the application of either the Seller or the Buyer, referred for final determination by to an independent firm of internationally recognised chartered accountants to be agreed upon accountant nominated jointly by the Seller and the Buyer or, failing agreementsuch nomination, to be selected, on at the application request of either the Seller or the Buyerparty, by the Chairman President for the time being of the Ulster Society of the Institute of Chartered Accountants in Ireland or his duly appointed deputy England and Wales (the “firmIndependent Accountant”). 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 5.7(b)) prepare and deliver to the firm a written statement on the matters in dispute (together with the relevant documents);
(b) the firm Independent Accountant shall be requested instructed to give its render his decision as soon as is reasonably practicable after its within 30 calendar days of his nomination or appointment and in any event by not later than 30 Business Days after 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 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 and (in the Arbitration absence of manifest error) his decision (Northern Irelandwhich shall be communicated in writing to the Seller and the Buyer) Order 1996 shall not apply) 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 Buyer. The fees and costs and the expenses of the firm Independent Accountant shall be borne between and paid as to 50% by the Seller and as to 50% by the Buyer unless the Independent Accountant shall direct otherwise, in which case they shall be borne as he directs.
4.5 The Seller and the Buyer in such proportions as shall procure that the firm shall in its discretion determine or, in the absence of any such determination, equally between the Seller and the Buyer.
5.8 When the Seller and the Buyer reach (or pursuant to clause 5.6 are deemed to reach) agreement on the draft 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 5:
(a) the Completion Accounts and the Statement as so agreed or determined shall be the Completion Accounts audited and the Statement for the purposes of this agreement and shall be final and binding on the parties; and
(b) the Working Capital Amount as at close of business on the Completion Date, shall be as set out in the Statement.
5.9 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 shall procure that each member of the Seller’s Group shall, and the Buyer shall procure that the Target Group shall, promptly provide each other, their respective advisers, the firm, certified by the Buyer’s accountants and Accountants.
4.6 If the Seller’s accountants with all information (Net Current Asset Value is less than the value of the net current assets as shown in their respective possession or control) relating the balance sheet forming part of the Accounts, the Consideration shall be reduced by the amount of the shortfall, which shall be paid by the Seller to the operations of Buyer in cash (by telegraphic transfer to the SellerBuyer’s Group and/or the Target Group, as the case may be, including access at all reasonable times to all Seller’s Group and Target Group employees, books, records, and other relevant information and all co-operation and assistance, as may in any such case be reasonably required to:
(aSolicitors) enable the production within seven calendar days after delivery of the Completion Accounts and failing payment in full within seven days the Statement; and
(b) enable the firm balance outstanding from time to determine time shall bear interest from the Completion Accounts and Date until actual payment in accordance with Clause 15.10.
4.7 For the Statement. The Seller and avoidance of doubt, if the Buyer hereby authorise each otherNet Current Asset Value is more than the value of the net current assets as shown in the balance sheet forming part of the Accounts, their respective advisers and there shall be no adjustment to the firm to take copies of all information which they have agreed to provide under this clause 5.9Consideration.
Appears in 1 contract
