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Common use of Final Closing Statement Clause in Contracts

Final Closing Statement. (a) In the 60 days following the Closing, Buyer shall cause the Company to prepare the consolidated balance sheet and statements of income of the Company Group as of the Closing (in accordance with the Illustrative Calculations and the Transaction Accounting Principles) and such financial accounts shall, at the discretion of Seller and at Seller’s expense, be audited or reviewed by KPMG (the “Closing Accounts”) and Buyer shall and shall cause the Company Group to provide such access, work papers, information and personnel as are reasonably requested by KPMG or Seller in connection therewith; provided that (x) any such audit shall be conducted in accordance with the procedures used in respect of ordinary course year end account audits, (y) any such review shall be conducted in accordance with procedures to be reasonably agreed upon among Buyer, Seller and KPMG (it being agreed that such procedures will include procedures appropriate for Seller’s IFRS deconsolidation purposes) and (z) Seller shall notify Buyer upon completion of KPMG’s audit or review. (b) No later than the later of (x) 60 days after the Closing Date and (y) 30 days after Seller has notified Buyer of the completion of KPMG’s audit or review (as contemplated by Section 2.06(a)), Buyer will prepare and deliver, or cause to be prepared and delivered, based on the Closing Accounts, to Seller: (i) a statement setting forth Buyer’s good faith calculation (prepared in accordance with the Illustrative Calculations, the Transaction Accounting Principles and the applicable definitions set forth in this Agreement) of: (A) Net Working Capital (“Closing Net Working Capital”), (B) the aggregate amount of all Indebtedness (“Closing Indebtedness”), (C) the aggregate amount of Cash of the Company Group (“Closing Cash”), and (D) all Transaction Expenses that were accrued or due by the Company Group and remained unpaid as of the Closing (“Closing Transaction Expenses”), in each case calculated as of 11:59 p.m. (New York time) on the day immediately preceding the Closing Date, except for Closing Transaction Expenses, without giving effect to the Transactions; provided that Tax items in Closing Indebtedness shall be calculated as of 11:59 p.m. (New York time) on the Closing Date; (ii) Buyer’s calculation of the Closing Net Working Capital Adjustment Amount; and (iii) on the basis of the foregoing, a calculation of the Closing Cash Purchase Price (together with the items referred to in clauses ‎(i) and ‎(ii) above, the “Final Closing Statement”), which shall be prepared in accordance with the Illustrative Calculations, the Transaction Accounting Principles and the applicable definitions set forth in this Agreement. If for any reason Buyer fails to deliver the Final Closing Statement in accordance with this Section 2.06, then the Preliminary Closing Statement delivered by Seller to Buyer pursuant to ‎Section 2.05 shall be considered for all purposes of this Agreement the Final Closing Statement, from which Seller shall have all of its rights pursuant to this Section 2.06 with respect thereto, including without limitation, the right to dispute such calculations as set forth in Section 2.06(d) through Section 2.06(i). (c) The Final Closing Statement, Closing Net Working Capital, Closing Indebtedness, Closing Transaction Expenses and Closing Cash shall be prepared in accordance with the Illustrative Calculations, the Transaction Accounting Principles and the definitions of the defined terms used in this Section 2.06; provided, however, that: (i) the Final Closing Statement (and any amounts included therein) shall reflect no increase in any accrual, provision, write-off or reserve unless such increase is consistent with the Transaction Accounting Principles; (ii) except as set forth in the following clause ‎(iii), the Final Closing Statement (and any amounts included therein) shall not give effect to the consummation of the transactions contemplated by this Agreement, including any payments of cash in respect of the Purchase Price, or any financing transactions in connection therewith or, after the Closing, any other action or omission by Buyer or any of the Company Group (excluding, with respect to the Company Group, as relates to any obligation arising prior to the Closing and not reflected in the Preliminary Closing Statement); (iii) the Final Closing Statement (and any amounts included therein) shall not reflect any expense or liability for which Buyer is responsible under this Agreement; and (iv) in the event of any inconsistency between the Transaction Accounting Principles and the Illustrative Calculations, the Transaction Accounting Principles shall prevail. Notwithstanding anything to the contrary in this Agreement, the calculations to be made pursuant to ‎Section 2.05, and the purchase price adjustment to be made pursuant to this ‎Section 2.06, shall (x) be intended to give effect to the arithmetic difference between the items in the Preliminary Closing Statement and the Final Closing Statement, all of which shall be determined in accordance with the Illustrative Calculations and the Transaction Accounting Principles without regard to any differences from IFRS and (y) except as provided in the Transaction Accounting Principles, be based on facts, circumstances and information available as they exist prior to the Closing and shall exclude the effect of any act, decision, change in circumstance, development or event arising or occurring on or after the Closing. Neither Section 2.05 nor Section 2.06 is intended to be used to adjust for claims that may be made with respect to the Balance Sheet or any inconsistencies or questions of interpretation between the Balance Sheet or the Transaction Accounting Principles, on the one hand, and IFRS, on the other. (d) If Seller disagrees with any of Buyer’s calculations contained in the Final Closing Statement prepared pursuant to Section 2.06(b), Seller may, within 30 days after delivery of the Final Closing Statement in accordance with Section 2.06(b), deliver a notice in writing (a “Notice of Disagreement”) to Buyer disagreeing with the Final Closing Statement and any calculations included therein. Any such Notice of Disagreement shall specify in reasonable detail the particulars of those items or amounts as to which Seller disagrees, and Seller shall be deemed to have agreed with all other items and amounts contained in the Final Closing Statement delivered pursuant to Section 2.06(b). (e) If a Notice of Disagreement shall be duly delivered pursuant to Section 2.06(d), Buyer and Seller shall, during the 15 days following such delivery (or such longer period as they may mutually agree), use their respective reasonable best efforts to reach agreement with respect to any calculations contained in the Final Closing Statement. Any disputed items resolved in writing between Buyer and Seller within such 15-day period shall be final and binding with respect to such items, and if Buyer and Seller agree in writing on the resolution of each disputed item specified by Seller in the Notice of Disagreement and the amount of the Closing Net Working Capital, Closing Indebtedness, Closing Cash and Closing Transaction Expenses, the amounts so determined shall be final and binding on the parties for all purposes hereunder and shall not be subject to appeal or further review. (f) If Buyer and Seller are unable to reach such agreement during such 15-day period, then any such remaining disagreements (such remaining disagreements, the “Disputed Matters”) shall be submitted promptly by Buyer and Seller (along with their briefs detailing their views as to the correct nature and amount of each item remaining in dispute and the amounts of the Closing Net Working Capital, Closing Indebtedness, Closing Cash and Closing Transaction Expenses) to Ernst & Young LLP or, if such firm is unwilling or unable to serve, such other independent accounting firm of internationally recognized standing as may be mutually selected by Buyer and Seller (the “Accounting Referee”), to review this Agreement and the Disputed Matters for the purpose of calculating the Purchase Price. In making such calculation, the Accounting Referee shall be bound by the terms of this Agreement, including the definitions of Purchase Price, Closing Cash, Closing Net Working Capital, Closing Net Working Capital Adjustment Amount and the terms of this ‎Section 2.06, shall consider only the Disputed Matters and shall not assign a value to any Disputed Matter greater than the greatest value for such item claimed by either party or less than the smallest value for such item claimed by either party. The Accounting Referee’s determination of any Disputed Matter shall be based solely on written materials, presentations and arguments submitted and/or made by Buyer and Seller, and shall not be based on an independent review. (g) Each party shall promptly make available to the other party any and all submissions provided to the Accounting Referee in connection with the Accounting Referee’s review and calculation. The Accounting Referee shall deliver to Buyer and Seller, as promptly as practicable, a report setting forth such calculation, which report shall be final and binding upon Buyer and Seller. The date on which Closing Net Working Capital, Closing Indebtedness, Closing Cash, Closing Net Working Capital Adjustment Amount and Closing Cash Purchase Price are finally determined in accordance with this ‎Section 2.06 is hereinafter referred to as the “Determination Date.” Notwithstanding the foregoing, Seller and Buyer shall use their commercially reasonable efforts to cause the Accounting Referee to render a written decision resolving the Disputed Matters within 30 days following the submission thereof. Judgment may be entered upon the written determination of the Accounting Referee in accordance with Section 11.06. In acting under this Agreement, the Accounting Referee will be entitled to the privileges and immunities of an arbitrator. (h) The cost of any dispute resolution pursuant to this ‎Section 2.06, including the fees and expenses of the Accounting Referee in connection with such review and report, shall be borne by Seller and Buyer in inverse proportion as they may prevail on the matters resolved by the Accounting Referee, which proportionate allocation shall be calculated on an aggregate basis based on the relative dollar values of the amounts in dispute and shall be determined by the Accounting Referee at the time the determination of such firm is rendered on the merits of the matters submitted. The fees and disbursements of the representatives of each party incurred in connection with the preparation or review of the Final Closing Statement and preparation or review of any Notice of Disagreement, as applicable, shall be borne by such party. (i) The “Adjustment Amount,” which may be positive or negative, shall mean the Closing Cash Purchase Price (as finally determined in accordance with this ‎Section 2.06) minus the Estimated Closing Cash Purchase Price. The Adjustment Amount shall be paid in accordance with ‎Section 2.06(j). (j) Promptly following the Determination Date, and in any event within three Business Days of the Determination Date: (i) If the Adjustment Amount is a positive number or zero (such amount, the “Increase Amount”), then the Cash Consideration shall be increased by an amount equal to the Increase Amount and Buyer shall pay Seller the Increase Amount (if any) in immediately available funds by wire transfer to the account or accounts designated by Seller in writing. (ii) If the Adjustment Amount is a negative number (the absolute value of such amount, the “Decrease Amount”), then the Cash Consideration shall be reduced by an amount equal to the Decrease Amount and Seller shall pay or cause to be paid to Buyer the Decrease Amount (if any) in immediately available funds by wire transfer to the account or accounts designated by Buyer in writing.

Appears in 1 contract

Samples: Stock Purchase Agreement (Magnite, Inc.)

Final Closing Statement. Within ninety (a90) In the 60 days following the Closing, Buyer shall cause the Company to prepare the consolidated balance sheet and statements of income of the Company Group as of the Closing (in accordance with the Illustrative Calculations and the Transaction Accounting Principles) and such financial accounts shall, at the discretion of Seller and at Seller’s expense, be audited or reviewed by KPMG (the “Closing Accounts”) and Buyer shall and shall cause the Company Group to provide such access, work papers, information and personnel as are reasonably requested by KPMG or Seller in connection therewith; provided that (x) any such audit shall be conducted in accordance with the procedures used in respect of ordinary course year end account audits, (y) any such review shall be conducted in accordance with procedures to be reasonably agreed upon among Buyer, Seller and KPMG (it being agreed that such procedures will include procedures appropriate for Seller’s IFRS deconsolidation purposes) and (z) Seller shall notify Buyer upon completion of KPMG’s audit or review. (b) No later than the later of (x) 60 days after the Closing Date and (y) 30 days after Seller has notified Buyer of the completion of KPMG’s audit or review (as contemplated by Section 2.06(a))Date, Buyer will prepare and deliver, or shall cause to be prepared and delivered, based on the Closing Accounts, delivered to Seller: SD Seller a final closing statement (i) a statement setting forth Buyer’s good faith calculation (prepared in accordance with the Illustrative Calculations, the Transaction Accounting Principles and the applicable definitions set forth in this Agreement) of: (A) Net Working Capital (“Closing Net Working Capital”), (B) the aggregate amount of all Indebtedness (“Closing Indebtedness”), (C) the aggregate amount of Cash of the Company Group (“Closing Cash”), and (D) all Transaction Expenses that were accrued or due by the Company Group and remained unpaid as of the Closing (“Closing Transaction Expenses”), in each case calculated as of 11:59 p.m. (New York time) on the day immediately preceding the Closing Date, except for Closing Transaction Expenses, without giving effect to the Transactions; provided that Tax items in Closing Indebtedness shall be calculated as of 11:59 p.m. (New York time) on the Closing Date; (ii) Buyer’s calculation of the Closing Net Working Capital Adjustment Amount; and (iii) on the basis of the foregoing, a calculation of the Closing Cash Purchase Price (together with the items referred to in clauses ‎(i) and ‎(ii) above, the “Final Closing Statement”), which setting forth Buyer’s reasonable and good faith calculation of Closing Date Cash Consideration and each component thereof: (i) Net Working Capital (the “Final Net Working Capital”), (ii) Closing Cash Balance (the “Final Closing Cash Balance”), (iii) Company Group Debt (the “Final Company Group Debt”), (iv) Selling Expenses (the “Final Selling Expenses”), (v) the Closing Company Group Bonus Payments (the “Final Closing Company Group Bonus Payments”), and (vi) based on the amounts set forth in clauses (i) through (v), the resulting Closing Date Cash Consideration, in each case, in reasonable detail. The Final Closing Statement shall be prepared in accordance with the Illustrative Calculations, the Transaction Accounting Principles and the applicable definitions shall, except as explicitly set forth in this Agreementthe Accounting Principles, (A) not include any changes in assets or liabilities as a result of purchase accounting or other changes arising from or resulting as a consequence of the transactions contemplated hereby or any of the Ancillary Agreements (the “Transactions”), (B) be based on ASC 855, Subsequent Events issued by the financial Accounting Standards Board through the 90 day period following the Closing Date and shall exclude the effect of any act, decision or event occurring on or after the Closing, and (C) not give effect to the Transactions or any financing obtained or to be obtained by Buyer or any of its Affiliates (including any member of the Company Group following the Closing) or any other transaction entered into by Buyer or any of its Affiliates (including any member of the Company Group following the Closing) or any other facts unique or particular to Buyer or any of its Affiliates or any of their respective assets or liabilities. The Parties agree that the processes of preparing the Final Closing Statement are not intended to permit the introduction of different judgments, accounting methods, policies, principles, practices, procedures, classifications or estimation methodologies for the purpose of preparing the Final Closing Statement or determining the Final Closing Date Cash Consideration and the components thereof (i.e., the Final Net Working Capital, the Final Closing Cash Balance, the Final Company Group Debt, the Final Selling Expenses and the Final Closing Company Group Bonus Payments), other than as set forth herein. If for any reason Buyer fails does not deliver the Final Closing Statement to deliver SD Seller within ninety (90) days after the Closing Date, then, at the election of SD Seller, either (x) SD Seller may prepare and present the Final Closing Statement within an additional thirty (30) days thereafter, or (y) the Estimated Closing Statement will be deemed to be the Final Closing Statement in accordance with this Section 2.06, then the Preliminary Closing Statement delivered by 2.3(c). If SD Seller elects to Buyer pursuant to ‎Section 2.05 shall be considered for all purposes of this Agreement the Final Closing Statement, from which Seller shall have all of its rights pursuant to this Section 2.06 with respect thereto, including without limitation, the right to dispute such calculations as set forth in Section 2.06(d) through Section 2.06(i). (c) The Final Closing Statement, Closing Net Working Capital, Closing Indebtedness, Closing Transaction Expenses and Closing Cash shall be prepared in accordance with the Illustrative Calculations, the Transaction Accounting Principles and the definitions of the defined terms used in this Section 2.06; provided, however, that: (i) the Final Closing Statement (and any amounts included therein) shall reflect no increase in any accrual, provision, write-off or reserve unless such increase is consistent with the Transaction Accounting Principles; (ii) except as set forth in the following clause ‎(iii), the Final Closing Statement (and any amounts included therein) shall not give effect to the consummation of the transactions contemplated by this Agreement, including any payments of cash in respect of the Purchase Price, or any financing transactions in connection therewith or, after the Closing, any other action or omission by Buyer or any of the Company Group (excluding, with respect to the Company Group, as relates to any obligation arising prior to the Closing and not reflected in the Preliminary Closing Statement); (iii) the Final Closing Statement (and any amounts included therein) shall not reflect any expense or liability for which Buyer is responsible under this Agreement; and (iv) in the event of any inconsistency between the Transaction Accounting Principles and the Illustrative Calculations, the Transaction Accounting Principles shall prevail. Notwithstanding anything to the contrary in this Agreement, the calculations to be made pursuant to ‎Section 2.05, and the purchase price adjustment to be made pursuant to this ‎Section 2.06, shall (x) be intended to give effect to the arithmetic difference between the items in the Preliminary Closing Statement and the Final Closing Statement, all of which shall be determined in accordance with the Illustrative Calculations and the Transaction Accounting Principles without regard to any differences from IFRS and (y) except as provided in the Transaction Accounting Principles, be based on facts, circumstances and information available as they exist prior to the Closing and shall exclude the effect of any act, decision, change in circumstance, development or event arising or occurring on or after the Closing. Neither Section 2.05 nor Section 2.06 is intended to be used to adjust for claims that may be made with respect to the Balance Sheet or any inconsistencies or questions of interpretation between the Balance Sheet or the Transaction Accounting Principles, on the one hand, and IFRS, on the other. (d) If Seller disagrees with any of Buyer’s calculations contained in the Final Closing Statement prepared pursuant to Section 2.06(b), Seller may, within 30 days after delivery of prepare the Final Closing Statement in accordance with the immediately preceding sentence, then (except for the last three sentences of Section 2.06(b2.3(d), deliver a notice ) all subsequent references in writing (a “Notice of Disagreement”Section 2.3(d) to Buyer disagreeing with the Final Closing Statement and any calculations included therein. Any such Notice of Disagreement shall specify in reasonable detail the particulars of those items or amounts as to which Seller disagrees, and Seller shall will be deemed to have agreed with all other items and amounts contained in the Final Closing Statement delivered pursuant be references to Section 2.06(b). (e) If a Notice of Disagreement shall be duly delivered pursuant to Section 2.06(d), Buyer and SD Seller shall, during the 15 days following such delivery (or such longer period as they may mutually agree), use their respective reasonable best efforts to reach agreement with respect to any calculations contained in the Final Closing Statement. Any disputed items resolved in writing between Buyer and Seller within such 15-day period shall be final and binding with respect to such items, and if Buyer and Seller agree in writing on the resolution of each disputed item specified by Seller in the Notice of Disagreement and the amount of the Closing Net Working Capital, Closing Indebtedness, Closing Cash and Closing Transaction Expenses, the amounts so determined shall be final and binding on the parties for all purposes hereunder and shall not be subject to appeal or further review. (f) If Buyer and Seller are unable to reach such agreement during such 15-day period, then any such remaining disagreements (such remaining disagreements, the “Disputed Matters”) shall be submitted promptly by Buyer and Seller (along with their briefs detailing their views as to the correct nature and amount of each item remaining in dispute and the amounts of the Closing Net Working Capital, Closing Indebtedness, Closing Cash and Closing Transaction Expenses) to Ernst & Young LLP or, if such firm is unwilling or unable to serve, such other independent accounting firm of internationally recognized standing as may be mutually selected by Buyer and Seller (the “Accounting Referee”), to review this Agreement and the Disputed Matters for the purpose of calculating the Purchase Price. In making such calculation, the Accounting Referee shall be bound by the terms of this Agreement, including the definitions of Purchase Price, Closing Cash, Closing Net Working Capital, Closing Net Working Capital Adjustment Amount and the terms of this ‎Section 2.06, shall consider only the Disputed Matters and shall not assign a value to any Disputed Matter greater than the greatest value for such item claimed by either party or less than the smallest value for such item claimed by either party. The Accounting Referee’s determination of any Disputed Matter shall be based solely on written materials, presentations and arguments submitted and/or made by Buyer and Seller, and shall not be based on an independent review. (g) Each party shall promptly make available to the other party any and all submissions provided subsequent references to the Accounting Referee in connection with the Accounting Referee’s review and calculation. The Accounting Referee shall deliver to Buyer and Seller, as promptly as practicable, a report setting forth such calculation, which report shall be final and binding upon Buyer and Seller. The date on which Closing Net Working Capital, Closing Indebtedness, Closing Cash, Closing Net Working Capital Adjustment Amount and Closing Cash Purchase Price are finally determined in accordance with this ‎Section 2.06 is hereinafter referred to as the “Determination Date.” Notwithstanding the foregoing, SD Seller and Buyer shall use their commercially reasonable efforts to cause the Accounting Referee to render a written decision resolving the Disputed Matters within 30 days following the submission thereof. Judgment may be entered upon the written determination of the Accounting Referee in accordance with Section 11.06. In acting under this Agreement, the Accounting Referee will be entitled to the privileges and immunities of an arbitrator. (h) The cost of any dispute resolution pursuant to this ‎Section 2.06, including the fees and expenses of the Accounting Referee in connection with such review and report, shall be borne by Seller and Buyer in inverse proportion as they may prevail on the matters resolved by the Accounting Referee, which proportionate allocation shall be calculated on an aggregate basis based on the relative dollar values of the amounts in dispute and shall be determined by the Accounting Referee at the time the determination of such firm is rendered on the merits of the matters submitted. The fees and disbursements of the representatives of each party incurred in connection with the preparation or review of the Final Closing Statement and preparation or review of any Notice of Disagreement, as applicable, shall be borne by such party. (i) The “Adjustment Amount,” which may be positive or negative, shall mean the Closing Cash Purchase Price (as finally determined in accordance with this ‎Section 2.06) minus the Estimated Closing Cash Purchase Price. The Adjustment Amount shall be paid in accordance with ‎Section 2.06(j). (j) Promptly following the Determination Date, and in any event within three Business Days of the Determination Date: (i) If the Adjustment Amount is a positive number or zero (such amount, the “Increase Amount”), then the Cash Consideration shall be increased by an amount equal to the Increase Amount and Buyer shall pay Seller the Increase Amount (if any) in immediately available funds by wire transfer to the account or accounts designated by Seller in writing. (ii) If the Adjustment Amount is a negative number (the absolute value of such amount, the “Decrease Amount”), then the Cash Consideration shall be reduced by an amount equal to the Decrease Amount and Seller shall pay or cause deemed to be paid references to Buyer the Decrease Amount (if any) in immediately available funds by wire transfer to the account or accounts designated by Buyer in writingBuyer.

Appears in 1 contract

Samples: Purchase Agreement (Gogo Inc.)

Final Closing Statement. (ai) In the 60 days following the Closing, Buyer shall cause the Company to prepare the consolidated balance sheet and statements of income of the Company Group as of the Closing (in accordance with the Illustrative Calculations and the Transaction Accounting Principles) and such financial accounts shall, at the discretion of Seller and at Seller’s expense, be audited or reviewed by KPMG (the “Closing Accounts”) and Buyer shall and shall cause the Company Group to provide such access, work papers, information and personnel as are reasonably requested by KPMG or Seller in connection therewith; provided that (x) any such audit shall be conducted in accordance with the procedures used in respect of ordinary course year end account audits, (y) any such review shall be conducted in accordance with procedures to be reasonably agreed upon among Buyer, Seller and KPMG (it being agreed that such procedures will include procedures appropriate for Seller’s IFRS deconsolidation purposes) and (z) Seller shall notify Buyer upon completion of KPMG’s audit or review. (b) No Not later than the later of (x) 60 75 days after the Closing Date or such other time as is mutually agreed by Corix and IIF Subway (y) 30 days after Seller has notified Buyer or any Affiliate of Corix or IIF Subway that becomes a shareholder of CIUS, collectively, in such capacities, the completion of KPMG’s audit or review (as contemplated by Section 2.06(a)“CIUS Shareholders”, and each, a “CIUS Shareholder”), Buyer will prepare the CIUS Shareholders shall cause CIUS to prepare, or cause to be prepared, and deliver, or cause to be prepared and delivered, based on to the Closing Accounts, to Seller: (i) CIUS Shareholders a written statement setting forth Buyer’s good faith calculation (prepared calculations in accordance with the Illustrative Calculations, the Transaction Accounting Principles and the applicable definitions set forth in this Agreement) of: reasonable detail of (A) the Closing SWWC Net Working Capital Indebtedness (“Closing Net Working Capital”including calculation of the SWWC Cash), , (B) the aggregate amount of all Indebtedness (“Closing Indebtedness”), SWWC Net Working Capital, (C) the aggregate amount of Cash of the Company Group (“Closing Cash”)SWWC Capital Expenditure Amount, and (D) all Transaction Expenses that were accrued or due by the Company Group and remained unpaid as of the Closing Corix Net Indebtedness (“Closing Transaction Expenses”), in each case calculated as of 11:59 p.m. (New York time) on the day immediately preceding the Closing Date, except for Closing Transaction Expenses, without giving effect to the Transactions; provided that Tax items in Closing Indebtedness shall be calculated as of 11:59 p.m. (New York time) on the Closing Date; (ii) Buyer’s including calculation of the Corix Cash), (E) the Closing Corix Net Working Capital Adjustment Amount; and and (iiiF) on the basis of the foregoing, a calculation of the Closing Cash Purchase Price Corix Capital Expenditure Amount (together with collectively, the items referred to in clauses ‎(i) “Final Equity Balancing Payment Adjustment Items” and ‎(ii) abovesuch statement, the “Final Closing Statement”), determined as of the Closing Date (and without giving effect to the transactions contemplated hereby except to the extent the parties agree to adjust the mechanisms for payment of the Estimated Adjusted Equity Balancing Payment Amount and do so through capital contributions to CIUS or to the respective contributed business or through the taking of other actions in accordance with Section 2.3, in which case the Final Closing Statement shall reflect such transactions). The Final Closing Statement shall be prepared on a basis consistent with the Accounting Principles. (ii) The CIUS Shareholders shall cause CIUS to make available to the CIUS Shareholders its (and shall use their reasonable best efforts to cause CIUS to direct its accountants to make available its) work papers, schedules and other supporting data as may reasonably be requested by the CIUS Shareholders to verify the calculations of the Final Equity Balancing Payment Adjustment Items as or to be set forth in the Final Closing Statement, subject to customary confidentiality agreements. In the event that any of the CIUS Shareholders delivers a Dispute Notice (as defined below) to CIUS and the other CIUS Shareholder pursuant to Section 2.4(a)(iii), the CIUS Shareholders shall cause CIUS to make available to the CIUS Shareholders its (and shall use its reasonable best efforts to cause its accountants to make available their) work papers, schedules and other supporting data as may reasonably be requested by the CIUS Shareholders to enable them to verify the calculations of the Final Equity Balancing Payment Adjustment Items as set forth in such Dispute Notice, subject to customary confidentiality agreements. (iii) Within 30 days following its receipt of the Final Closing Statement, each CIUS Shareholder shall deliver to CIUS and the other CIUS Shareholder either (A) its agreement as to the calculation of the Final Equity Balancing Payment Adjustment Items as set forth therein or (B) a written dispute notice (a “Dispute Notice”), specifying in reasonable detail the nature of its dispute of the calculation of the Final Equity Balancing Payment Adjustment Items as set forth therein; provided, that the CIUS Shareholders may dispute the calculation of the Final Equity Balancing Payment Adjustment Items as set forth in the Final Closing Statement only on the basis that such calculation was not made in accordance with the Illustrative CalculationsAccounting Principles, or on the basis of arithmetic error. In the event of a dispute, during the 15 Business Days after the delivery of a Dispute Notice, the Transaction Accounting Principles CIUS Shareholders shall, and shall cause CIUS to, attempt in good faith to resolve any such dispute and finally determine the applicable definitions amounts, as applicable, of the Final Equity Balancing Payment Adjustment Items as set forth in this Agreementthe Final Closing Statement. If at the end of such 15-Business Day period, the CIUS Shareholders have failed to reach agreement with respect to any such disputed amounts, the matter shall be submitted to an internationally recognized accounting firm that is not the principal independent auditor for any reason Buyer fails CIUS Shareholder and is otherwise neutral and impartial and mutually agreed upon by the CIUS Shareholders; provided, however, that if the CIUS Shareholders are unable to deliver select such accounting firm within 20 Business Days after delivery of a Dispute Notice, any CIUS Shareholder may request the American Arbitration Association to appoint, within five Business Days following the date of such request, an independent accounting firm meeting the requirements set forth above. The accounting firm so selected shall be referred to herein as the “Accountant”. The Accountant shall be engaged by XXXX, and the Accountant, as an expert and not as an arbitrator, shall resolve the disputed portions of the calculations of the Final Equity Balancing Payment Adjustment Items as set forth in the Final Closing Statement in accordance with this Section 2.06, then the Preliminary Closing Statement delivered by Seller to Buyer pursuant to ‎Section 2.05 shall be considered for all purposes terms and conditions of this Agreement the Final Closing Statement, from which Seller shall have all of its rights pursuant to this Section 2.06 with respect thereto, including without limitationAgreement. In making such determination, the right Accountant may only consider those items and amounts as to dispute such calculations as set forth in Section 2.06(d) through Section 2.06(i). (c) The Final Closing Statement, Closing Net Working Capital, Closing Indebtedness, Closing Transaction Expenses which the CIUS Shareholders have disagreed within the time periods and Closing Cash shall be prepared on the terms specified above and must resolve the matter in accordance with the Illustrative Calculations, the Transaction Accounting Principles terms and the definitions provisions of the defined terms used in this Section 2.06Agreement; provided, however, that: (i) that the determination by the Accountant will neither be more favorable to any CIUS Shareholder than reflected in the Final Closing Statement nor more favorable to any CIUS Shareholder than reflected in such CIUS Shareholder’s Dispute Notice. The Accountant shall deliver to CIUS and the CIUS Shareholders, as promptly as practicable after its appointment (and any in no event later than 30 days), a written report setting forth the resolution of each disputed matter and its determination of the amounts included therein) shall reflect no increase in any accrual, provision, write-off or reserve unless such increase is consistent with of the Transaction Accounting Principles; (ii) except Equity Balancing Payment Adjustment Items as set forth in the following clause ‎(iii), the Final Closing Statement (and any amounts included therein) shall not give effect to the consummation of the transactions contemplated by this Agreement, including any payments of cash in respect of the Purchase Price, or any financing transactions in connection therewith or, after the Closing, any other action or omission by Buyer or any of the Company Group (excluding, with respect to the Company Group, as relates to any obligation arising prior to the Closing and not reflected in the Preliminary Closing Statement); (iii) the Final Closing Statement (and any amounts included therein) shall not reflect any expense or liability for which Buyer is responsible under this Agreement; and (iv) in the event of any inconsistency between the Transaction Accounting Principles and the Illustrative Calculations, the Transaction Accounting Principles shall prevail. Notwithstanding anything to the contrary in this Agreement, the calculations to be made pursuant to ‎Section 2.05, and the purchase price adjustment to be made pursuant to this ‎Section 2.06, shall (x) be intended to give effect to the arithmetic difference between the items in the Preliminary Closing Statement and the Final Closing Statement, all of which shall be determined in accordance with the Illustrative Calculations and the Transaction Accounting Principles without regard to any differences from IFRS and (y) except as provided in the Transaction Accounting Principles, be based on facts, circumstances and information available as they exist prior to the Closing and shall exclude the effect of any act, decision, change in circumstance, development or event arising or occurring on or after the Closing. Neither Section 2.05 nor Section 2.06 is intended to be used to adjust for claims that may be made with respect to the Balance Sheet or any inconsistencies or questions of interpretation between the Balance Sheet or the Transaction Accounting Principles, on the one hand, and IFRS, on the other. (d) If Seller disagrees with any of Buyer’s calculations contained in the Final Closing Statement prepared pursuant to Section 2.06(b), Seller may, within 30 days after delivery of the Final Closing Statement in accordance with Section 2.06(b), deliver a notice in writing (a “Notice of Disagreement”) to Buyer disagreeing with the Final Closing Statement and any calculations included therein. Any such Notice of Disagreement shall specify in reasonable detail the particulars of those items or amounts as to which Seller disagrees, and Seller shall be deemed to have agreed with all other items and amounts contained in the Final Closing Statement delivered pursuant to Section 2.06(b). (e) If a Notice of Disagreement shall be duly delivered pursuant to Section 2.06(d), Buyer and Seller shall, during the 15 days following such delivery (or such longer period as they may mutually agree), use their respective reasonable best efforts to reach agreement with respect to any calculations contained in the Final Closing Statement. Any disputed items resolved in writing between Buyer and Seller within such 15-day period shall be final and binding with respect to such items, and if Buyer and Seller agree in writing on the resolution of each disputed item specified by Seller in the Notice of Disagreement and the amount of the Closing Net Working Capital, Closing Indebtedness, Closing Cash and Closing Transaction Expenses, the amounts so determined shall be final and binding on the parties for all purposes hereunder and shall not be subject to appeal or further review. (f) If Buyer and Seller are unable to reach such agreement during such 15-day period, then any such remaining disagreements (such remaining disagreements, the “Disputed Matters”) shall be submitted promptly by Buyer and Seller (along with their briefs detailing their views as to the correct nature and amount of each item remaining in dispute and the amounts of the Closing Net Working Capital, Closing Indebtedness, Closing Cash and Closing Transaction Expenses) to Ernst & Young LLP or, if such firm is unwilling or unable to serve, such other independent accounting firm of internationally recognized standing as may be mutually selected by Buyer and Seller (the “Accounting Referee”), to review this Agreement and the Disputed Matters for the purpose of calculating the Purchase Price. In making such calculation, the Accounting Referee shall be bound by the terms of this Agreement, including the definitions of Purchase Price, Closing Cash, Closing Net Working Capital, Closing Net Working Capital Adjustment Amount and the terms of this ‎Section 2.06, shall consider only the Disputed Matters and shall not assign a value to any Disputed Matter greater than the greatest value for such item claimed by either party or less than the smallest value for such item claimed by either party. The Accounting Referee’s determination of any Disputed Matter shall be based solely on written materials, presentations and arguments submitted and/or made by Buyer and Seller, and shall not be based on an independent review. (g) Each party shall promptly make available to the other party any and all submissions provided to the Accounting Referee in connection with the Accounting Referee’s review and calculation. The Accounting Referee shall deliver to Buyer and Seller, as promptly as practicable, a report setting forth such calculation, which Such report shall be final and binding upon Buyer the CIUS Shareholders to the fullest extent permitted under requirements of Law and Seller. The date on which Closing Net Working Capital, Closing Indebtedness, Closing Cash, Closing Net Working Capital Adjustment Amount and Closing Cash Purchase Price are finally determined in accordance with this ‎Section 2.06 is hereinafter referred to as the “Determination Date.” Notwithstanding the foregoing, Seller and Buyer shall use their commercially reasonable efforts to cause the Accounting Referee to render a written decision resolving the Disputed Matters within 30 days following the submission thereof. Judgment may be entered upon the written determination of the Accounting Referee enforced in accordance with Section 11.06any court having jurisdiction. In acting under this Agreement, the Accounting Referee will be entitled to the privileges and immunities of an arbitrator. (h) The cost of any dispute resolution pursuant to this ‎Section 2.06, including the Each CIUS Shareholder shall bear its own respective fees and expenses of the Accounting Referee in connection with such review and report, shall be borne by Seller and Buyer in inverse proportion as they may prevail on the matters resolved by the Accounting Referee, which proportionate allocation shall be calculated on an aggregate basis based on the relative dollar values of the amounts in dispute and shall be determined by the Accounting Referee at the time the determination of such firm is rendered on the merits of the matters submitted. The fees and disbursements of the representatives of each party costs incurred in connection with the preparation or review of the Final Closing Statement and preparation or review Accountant’s resolution of any Notice of Disagreementdisputed items pursuant to this Section 2.4(a)(iii), as applicable, except that all fees and expenses relating to the foregoing work by the Accountant shall be borne by such partyCIUS. (i) The “Adjustment Amount,” which may be positive or negative, shall mean the Closing Cash Purchase Price (as finally determined in accordance with this ‎Section 2.06) minus the Estimated Closing Cash Purchase Price. The Adjustment Amount shall be paid in accordance with ‎Section 2.06(j). (j) Promptly following the Determination Date, and in any event within three Business Days of the Determination Date: (i) If the Adjustment Amount is a positive number or zero (such amount, the “Increase Amount”), then the Cash Consideration shall be increased by an amount equal to the Increase Amount and Buyer shall pay Seller the Increase Amount (if any) in immediately available funds by wire transfer to the account or accounts designated by Seller in writing. (ii) If the Adjustment Amount is a negative number (the absolute value of such amount, the “Decrease Amount”), then the Cash Consideration shall be reduced by an amount equal to the Decrease Amount and Seller shall pay or cause to be paid to Buyer the Decrease Amount (if any) in immediately available funds by wire transfer to the account or accounts designated by Buyer in writing.

Appears in 1 contract

Samples: Transaction Agreement

Final Closing Statement. Within ninety (a90) In the 60 days following the Closing, Buyer shall cause the Company to prepare the consolidated balance sheet and statements of income of the Company Group as of the Closing (in accordance with the Illustrative Calculations and the Transaction Accounting Principles) and such financial accounts shall, at the discretion of Seller and at Seller’s expense, be audited or reviewed by KPMG (the “Closing Accounts”) and Buyer shall and shall cause the Company Group to provide such access, work papers, information and personnel as are reasonably requested by KPMG or Seller in connection therewith; provided that (x) any such audit shall be conducted in accordance with the procedures used in respect of ordinary course year end account audits, (y) any such review shall be conducted in accordance with procedures to be reasonably agreed upon among Buyer, Seller and KPMG (it being agreed that such procedures will include procedures appropriate for Seller’s IFRS deconsolidation purposes) and (z) Seller shall notify Buyer upon completion of KPMG’s audit or review. (b) No later than the later of (x) 60 days after the Closing Date and (y) 30 days after Seller has notified Buyer of the completion of KPMG’s audit or review (as contemplated by Section 2.06(a))Date, Buyer will prepare and deliver, or shall cause to be prepared and delivered, based on the Closing Accounts, delivered to Seller: Seller Representative a final closing statement (i) a statement setting forth Buyer’s good faith calculation (prepared in accordance with the Illustrative Calculations, the Transaction Accounting Principles and the applicable definitions set forth in this Agreement) of: (A) Net Working Capital (“Closing Net Working Capital”), (B) the aggregate amount of all Indebtedness (“Closing Indebtedness”), (C) the aggregate amount of Cash of the Company Group (“Closing Cash”), and (D) all Transaction Expenses that were accrued or due by the Company Group and remained unpaid as of the Closing (“Closing Transaction Expenses”), in each case calculated as of 11:59 p.m. (New York time) on the day immediately preceding the Closing Date, except for Closing Transaction Expenses, without giving effect to the Transactions; provided that Tax items in Closing Indebtedness shall be calculated as of 11:59 p.m. (New York time) on the Closing Date; (ii) Buyer’s calculation of the Closing Net Working Capital Adjustment Amount; and (iii) on the basis of the foregoing, a calculation of the Closing Cash Purchase Price (together with the items referred to in clauses ‎(i) and ‎(ii) above, the “Final Closing Statement”), which setting forth Buyer’s good faith calculations of (i) Net Working Capital (the “Final Net Working Capital”), (ii) Closing Cash Balance (the “Final Closing Cash Balance”), (iii) Company Debt (the “Final Company Debt”), (iv) Selling Expenses (the “Final Selling Expenses”), and (v) based on the amounts set forth in clauses (i) through (iv), the resulting Adjusted Closing Date Consideration, in each case, in reasonable detail and with explanations for the differences between the Final Closing Statement and the Estimated Closing Statement. If the Final Net Working Capital is less than the Target Working Capital Minimum, such shortfall shall be referred to as the “Final Working Capital Deficiency”. If the Final Net Working Capital is greater than the Target Working Capital Maximum, such excess shall be referred to as the “Final Working Capital Overage”. The Final Closing Statement shall be prepared in accordance with the Illustrative Calculations, the Transaction Accounting Principles and the applicable definitions set forth in this Agreement. If for any reason Buyer fails to deliver the Final Closing Statement in accordance with this Section 2.06shall, then the Preliminary Closing Statement delivered by Seller to Buyer pursuant to ‎Section 2.05 shall be considered for all purposes of this Agreement the Final Closing Statement, from which Seller shall have all of its rights pursuant to this Section 2.06 with respect thereto, including without limitation, the right to dispute such calculations as set forth in Section 2.06(d) through Section 2.06(i). (c) The Final Closing Statement, Closing Net Working Capital, Closing Indebtedness, Closing Transaction Expenses and Closing Cash shall be prepared in accordance with the Illustrative Calculations, the Transaction Accounting Principles and the definitions of the defined terms used in this Section 2.06; provided, however, that: (i) the Final Closing Statement (and any amounts included therein) shall reflect no increase in any accrual, provision, write-off or reserve unless such increase is consistent with the Transaction Accounting Principles; (ii) except as explicitly set forth in the following clause ‎(iii), the Final Closing Statement Accounting Principles (and A) not include any amounts included therein) shall not give effect to the consummation changes in assets or liabilities as a result of purchase accounting or other changes arising from or resulting as a consequence of the transactions contemplated by this AgreementAgreement (the “Transactions”), including any payments of cash in respect of the Purchase Price, or any financing transactions in connection therewith or, after the Closing, any other action or omission by Buyer or any of the Company Group (excluding, with respect to the Company Group, as relates to any obligation arising prior to the Closing and not reflected in the Preliminary Closing Statement); (iiiB) the Final Closing Statement (and any amounts included therein) shall not reflect any expense or liability for which Buyer is responsible under this Agreement; and (iv) in the event of any inconsistency between the Transaction Accounting Principles and the Illustrative Calculations, the Transaction Accounting Principles shall prevail. Notwithstanding anything to the contrary in this Agreement, the calculations to be made pursuant to ‎Section 2.05, and the purchase price adjustment to be made pursuant to this ‎Section 2.06, shall (x) be intended to give effect to the arithmetic difference between the items in the Preliminary Closing Statement and the Final Closing Statement, all of which shall be determined in accordance with the Illustrative Calculations and the Transaction Accounting Principles without regard to any differences from IFRS and (y) except as provided in the Transaction Accounting Principles, be based on facts, facts and circumstances and information available as they exist immediately prior to the Closing and shall exclude the effect of any act, decision, change in circumstance, development decision or event arising or occurring on or after the Closing. Neither Section 2.05 nor Section 2.06 is intended Closing (but including any liabilities or obligations existing prior to be used to adjust for claims the Closing that may be made with respect triggered solely by the Closing), (C) not reflect, directly or indirectly, any additional reserve or accrual that is not reflected in the latest Company Financial Statements, (D) calculate any reserves, accruals or other non-cash expense items on a pro rata (as opposed to monthly accrual) basis to account for a Closing that occurs on any date other than the last day of a calendar month, and (E) not give effect to the Balance Sheet Transactions or any inconsistencies financing obtained or questions of interpretation between the Balance Sheet to be obtained by Buyer or the Transaction Accounting Principles, on the one hand, and IFRS, on the other. (d) If Seller disagrees with any of Buyer’s calculations contained in its Affiliates (including the Company following the Closing) or any other transaction entered into by Buyer or any of its Affiliates (including the Company following the Closing) or any other facts unique or particular to Buyer or any of its Affiliates or any of their respective assets or liabilities. The Parties agree that the purpose of preparing the Final Closing Statement prepared pursuant and determining the Final Net Working Capital and the related Closing Date Consideration adjustment contemplated by this Section 2.3 is to Section 2.06(b)measure the amount of change (if any) between the Estimated Closing Statement and the Final Closing Statement, and such processes are not intended to permit the introduction of different judgments, accounting methods, policies, principles, practices, procedures, classifications or estimation methodologies for the purpose of preparing the Final Closing Statement or determining the Final Net Working Capital, the Final Closing Cash Balance, the Final Company Debt and the Final Selling Expenses. If Buyer does not deliver the Final Closing Statement to Seller may, Representative within 30 ninety (90) days after delivery the Closing Date, then, at the election of Seller Representative, either (x) Seller Representative may prepare and present the Final Closing Statement within an additional thirty (30) days thereafter, or (y) the Estimated Closing Statement will be deemed to be the Final Closing Statement in accordance with this Section 2.06(b2.3(c), deliver a notice in writing (a “Notice of Disagreement”) . If Seller Representative elects to Buyer disagreeing with prepare the Final Closing Statement and any calculations included therein. Any such Notice in accordance with the immediately preceding sentence, then (except for the last three sentences of Disagreement shall specify Section 2.3(d)) all subsequent references in reasonable detail the particulars of those items or amounts as Section 2.3(d) to which Seller disagrees, and Seller shall Buyer will be deemed to have agreed with all other items and amounts contained in the Final Closing Statement delivered pursuant be references to Section 2.06(b). (e) If a Notice of Disagreement shall be duly delivered pursuant to Section 2.06(d), Buyer and Seller shall, during the 15 days following such delivery (or such longer period as they may mutually agree), use their respective reasonable best efforts to reach agreement with respect to any calculations contained in the Final Closing Statement. Any disputed items resolved in writing between Buyer and Seller within such 15-day period shall be final and binding with respect to such items, and if Buyer and Seller agree in writing on the resolution of each disputed item specified by Seller in the Notice of Disagreement and the amount of the Closing Net Working Capital, Closing Indebtedness, Closing Cash and Closing Transaction Expenses, the amounts so determined shall be final and binding on the parties for all purposes hereunder and shall not be subject to appeal or further review. (f) If Buyer and Seller are unable to reach such agreement during such 15-day period, then any such remaining disagreements (such remaining disagreements, the “Disputed Matters”) shall be submitted promptly by Buyer and Seller (along with their briefs detailing their views as to the correct nature and amount of each item remaining in dispute and the amounts of the Closing Net Working Capital, Closing Indebtedness, Closing Cash and Closing Transaction Expenses) to Ernst & Young LLP or, if such firm is unwilling or unable to serve, such other independent accounting firm of internationally recognized standing as may be mutually selected by Buyer and Seller (the “Accounting Referee”), to review this Agreement and the Disputed Matters for the purpose of calculating the Purchase Price. In making such calculation, the Accounting Referee shall be bound by the terms of this Agreement, including the definitions of Purchase Price, Closing Cash, Closing Net Working Capital, Closing Net Working Capital Adjustment Amount and the terms of this ‎Section 2.06, shall consider only the Disputed Matters and shall not assign a value to any Disputed Matter greater than the greatest value for such item claimed by either party or less than the smallest value for such item claimed by either party. The Accounting Referee’s determination of any Disputed Matter shall be based solely on written materials, presentations and arguments submitted and/or made by Buyer and Seller, and shall not be based on an independent review. (g) Each party shall promptly make available to the other party any Representative and all submissions provided subsequent references to the Accounting Referee in connection with the Accounting Referee’s review and calculation. The Accounting Referee shall deliver to Buyer and Seller, as promptly as practicable, a report setting forth such calculation, which report shall be final and binding upon Buyer and Seller. The date on which Closing Net Working Capital, Closing Indebtedness, Closing Cash, Closing Net Working Capital Adjustment Amount and Closing Cash Purchase Price are finally determined in accordance with this ‎Section 2.06 is hereinafter referred to as the “Determination Date.” Notwithstanding the foregoing, Seller and Buyer shall use their commercially reasonable efforts to cause the Accounting Referee to render a written decision resolving the Disputed Matters within 30 days following the submission thereof. Judgment may be entered upon the written determination of the Accounting Referee in accordance with Section 11.06. In acting under this Agreement, the Accounting Referee Representative will be entitled to the privileges and immunities of an arbitrator. (h) The cost of any dispute resolution pursuant to this ‎Section 2.06, including the fees and expenses of the Accounting Referee in connection with such review and report, shall be borne by Seller and Buyer in inverse proportion as they may prevail on the matters resolved by the Accounting Referee, which proportionate allocation shall be calculated on an aggregate basis based on the relative dollar values of the amounts in dispute and shall be determined by the Accounting Referee at the time the determination of such firm is rendered on the merits of the matters submitted. The fees and disbursements of the representatives of each party incurred in connection with the preparation or review of the Final Closing Statement and preparation or review of any Notice of Disagreement, as applicable, shall be borne by such party. (i) The “Adjustment Amount,” which may be positive or negative, shall mean the Closing Cash Purchase Price (as finally determined in accordance with this ‎Section 2.06) minus the Estimated Closing Cash Purchase Price. The Adjustment Amount shall be paid in accordance with ‎Section 2.06(j). (j) Promptly following the Determination Date, and in any event within three Business Days of the Determination Date: (i) If the Adjustment Amount is a positive number or zero (such amount, the “Increase Amount”), then the Cash Consideration shall be increased by an amount equal to the Increase Amount and Buyer shall pay Seller the Increase Amount (if any) in immediately available funds by wire transfer to the account or accounts designated by Seller in writing. (ii) If the Adjustment Amount is a negative number (the absolute value of such amount, the “Decrease Amount”), then the Cash Consideration shall be reduced by an amount equal to the Decrease Amount and Seller shall pay or cause deemed to be paid references to Buyer the Decrease Amount (if any) in immediately available funds by wire transfer to the account or accounts designated by Buyer in writingBuyer.

Appears in 1 contract

Samples: Purchase Agreement (Loar Holdings Inc.)

Final Closing Statement. Within ninety (a90) In the 60 days following the Closing, Buyer shall cause the Company to prepare the consolidated balance sheet and statements of income of the Company Group as of the Closing (in accordance with the Illustrative Calculations and the Transaction Accounting Principles) and such financial accounts shall, at the discretion of Seller and at Seller’s expense, be audited or reviewed by KPMG (the “Closing Accounts”) and Buyer shall and shall cause the Company Group to provide such access, work papers, information and personnel as are reasonably requested by KPMG or Seller in connection therewith; provided that (x) any such audit shall be conducted in accordance with the procedures used in respect of ordinary course year end account audits, (y) any such review shall be conducted in accordance with procedures to be reasonably agreed upon among Buyer, Seller and KPMG (it being agreed that such procedures will include procedures appropriate for Seller’s IFRS deconsolidation purposes) and (z) Seller shall notify Buyer upon completion of KPMG’s audit or review. (b) No later than the later of (x) 60 days after the Closing Date Date, Acquiror shall prepare and (y) 30 days after deliver to Seller has notified Buyer a balance sheet setting forth the components of Closing Working Capital as of the completion Effective Time and a written statement (the “Final Closing Statement”) setting forth in reasonable detail (a) a calculation of KPMG’s audit or review (as contemplated by Section 2.06(a)), Buyer will prepare and deliver, or cause to be prepared and delivered, based on the Closing Accounts, to Seller: actual (i) a statement setting forth Buyer’s good faith calculation Closing Cash (prepared in accordance with the Illustrative Calculations, the Transaction Accounting Principles and the applicable definitions set forth in this Agreement) of: (A) Net Working Capital (Closing Net Working Capital”), (B) the aggregate amount of all Indebtedness (“Closing Indebtedness”), (C) the aggregate amount of Cash of the Company Group (“Final Closing Cash”), and (Dii) all Closing Debt (the “Final Closing Debt”), (iii) Unpaid Transaction Expenses that were accrued or due by (the Company Group and remained unpaid as of the Closing (Closing Final Unpaid Transaction Expenses”) and (iv) Closing Working Capital (the “Final Closing Working Capital”) and the Closing Working Capital Surplus or Closing Working Capital Deficit, if any, resulting therefrom (the “Final Closing Working Capital Adjustment Amount”, which may be positive or negative), which Final Closing Statement shall quantify in reasonable detail the items constituting such Final Closing Cash, Final Closing Debt, Final Unpaid Transaction Expenses, Final Closing Working Capital and Final Closing Working Capital Adjustment Amount, and in each case calculated as in accordance with the terms of 11:59 p.m. this Agreement, the Applicable Accounting Principles (New York time) on including the day immediately preceding the Closing Date, except for Closing Transaction Expenses, without giving effect to the Transactions; provided that Tax items in Closing Indebtedness shall be calculated as of 11:59 p.m. (New York time) on the Closing Date; (ii) Buyer’s sample calculation of the Closing Net Working Capital Adjustment Amount; and included therein), and (iiib) on the basis of the foregoing, a calculation of the Closing Cash Final Total Share Purchase Price (together with Consideration, including such schedules and data as may be appropriate to support such calculations; provided, however, that all calculations of the items referred to in clauses ‎(i) and ‎(ii) above, the “Final Closing Statement”), which shall be prepared in accordance with the Illustrative Calculations, the Transaction Accounting Principles and the applicable definitions Total Share Purchase Consideration set forth in this Agreement. If for any reason Buyer fails to deliver the Final Closing Statement in accordance with this Section 2.06, then the Preliminary Closing Statement delivered by Seller to Buyer pursuant to ‎Section 2.05 shall be considered for all purposes of this Agreement the Final Closing Statement, from which Seller shall have all of its rights pursuant to this Section 2.06 with respect thereto, including without limitation, the right to dispute such calculations as set forth in Section 2.06(d) through Section 2.06(i). (c) The Final Closing StatementCash, Final Closing Net Working CapitalDebt, Closing Indebtedness, Closing Final Unpaid Transaction Expenses and Closing Cash shall be prepared in accordance with the Illustrative Calculations, the Transaction Accounting Principles and the definitions of the defined terms used in this Section 2.06; provided, however, that: (i) the Final Closing Statement Working Capital (and any amounts included thereinFinal Closing Working Capital Adjustment Amount) shall reflect no increase in any accrual(including individual working capital line items), provision, write-off or reserve unless that are not different from such increase is consistent with the Transaction Accounting Principles; (ii) except as calculations set forth in the following clause ‎(iii), the Final Closing Statement shall be final, conclusive and binding on the parties (unless and any amounts included therein) shall not give effect to the consummation extent that resolution of a disputed calculation or line item affects an undisputed calculation or line item, in which case such undisputed calculation or line item shall remain open). Following the transactions contemplated by this Agreement, including any payments of cash in respect of the Purchase Price, or any financing transactions in connection therewith or, after the Closing, any other action or omission by Buyer or any of the Company Group (excluding, with respect to the Company Group, as relates to any obligation arising prior to the Closing and not reflected in the Preliminary Closing Statement); (iii) the Final Closing Statement (and any amounts included therein) shall not reflect any expense or liability for which Buyer is responsible under this Agreement; and (iv) in the event of any inconsistency between the Transaction Accounting Principles and the Illustrative Calculations, the Transaction Accounting Principles shall prevail. Notwithstanding anything to the contrary in this Agreement, the calculations to be made pursuant to ‎Section 2.05, and the purchase price adjustment to be made pursuant to this ‎Section 2.06, shall (x) be intended to give effect to the arithmetic difference between the items in the Preliminary Closing Statement and the Final Closing Statement, all of which shall be determined in accordance with the Illustrative Calculations and the Transaction Accounting Principles without regard to any differences from IFRS and (y) except as provided in the Transaction Accounting Principles, be based on facts, circumstances and information available as they exist prior to the Closing and shall exclude the effect of any act, decision, change in circumstance, development or event arising or occurring on or after the Closing. Neither Section 2.05 nor Section 2.06 is intended to be used to adjust for claims that may be made with respect to the Balance Sheet or any inconsistencies or questions of interpretation between the Balance Sheet or the Transaction Accounting Principles, on the one hand, and IFRS, on the other. (d) If Seller disagrees with any of Buyer’s calculations contained in the Final Closing Statement prepared pursuant to Section 2.06(b), Seller may, within 30 days after delivery of the Final Closing Statement to Seller, Acquiror shall provide Seller and its Representatives, at the request of Seller, with reasonable access (including electronic access) during normal business hours to (i) the books and records of the Company Group as well as any relevant work papers of Acquiror, the Company Group and their accountants (subject to Seller’s entry into such accountant’s standard form of access letter as such accountant may require) generated in accordance with Section 2.06(b)preparing the Final Closing Statement, deliver a notice in writing and (a “Notice ii) such personnel or Representatives of Disagreement”) to Buyer disagreeing with the Company Group and Acquiror responsible for preparing the Final Closing Statement as may reasonably be required for the review of Acquiror’s calculations. All fees, costs and any calculations included therein. Any such Notice expenses of Disagreement shall specify in reasonable detail Seller relating to the particulars review of those items or amounts as to which Seller disagrees, and Seller shall be deemed to have agreed with all other items and amounts contained in the Final Closing Statement delivered pursuant to Section 2.06(b). (e) If a Notice of Disagreement shall be duly delivered pursuant to Section 2.06(d), Buyer and Seller shall, during the 15 days following such delivery (or such longer period as they may mutually agree), use their respective reasonable best efforts to reach agreement with respect to any calculations contained in the Final Closing Statement. Any disputed items resolved in writing between Buyer and Seller within such 15-day period shall be final and binding with respect to such items, and if Buyer and Seller agree in writing on the resolution of each disputed item specified by Seller in the Notice of Disagreement and the amount of the Closing Net Working Capital, Closing Indebtedness, Closing Cash and Closing Transaction Expenses, the amounts so determined shall be final and binding on the parties for all purposes hereunder and shall not be subject to appeal or further review. (f) If Buyer and Seller are unable to reach such agreement during such 15-day period, then any such remaining disagreements (such remaining disagreements, the “Disputed Matters”) shall be submitted promptly by Buyer and Seller (along with their briefs detailing their views as to the correct nature and amount of each item remaining in dispute and the amounts of the Closing Net Working Capital, Closing Indebtedness, Closing Cash and Closing Transaction Expenses) to Ernst & Young LLP or, if such firm is unwilling or unable to serve, such other independent accounting firm of internationally recognized standing as may be mutually selected by Buyer and Seller (the “Accounting Referee”), to review this Agreement and the Disputed Matters for the purpose of calculating the Purchase Price. In making such calculation, the Accounting Referee shall be bound by the terms of this Agreement, including the definitions of Purchase Price, Closing Cash, Closing Net Working Capital, Closing Net Working Capital Adjustment Amount and the terms of this ‎Section 2.06, shall consider only the Disputed Matters and shall not assign a value to any Disputed Matter greater than the greatest value for such item claimed by either party or less than the smallest value for such item claimed by either party. The Accounting Referee’s determination of any Disputed Matter shall be based solely on written materials, presentations and arguments submitted and/or made by Buyer and Seller, and shall not be based on an independent review. (g) Each party shall promptly make available to the other party any and all submissions provided to the Accounting Referee in connection with the Accounting Referee’s review and calculation. The Accounting Referee shall deliver to Buyer and Seller, as promptly as practicable, a report setting forth such calculation, which report shall be final and binding upon Buyer and Seller. The date on which Closing Net Working Capital, Closing Indebtedness, Closing Cash, Closing Net Working Capital Adjustment Amount and Closing Cash Purchase Price are finally determined in accordance with this ‎Section 2.06 is hereinafter referred to as the “Determination Date.” Notwithstanding the foregoing, Seller and Buyer shall use their commercially reasonable efforts to cause the Accounting Referee to render a written decision resolving the Disputed Matters within 30 days following the submission thereof. Judgment may be entered upon the written determination of the Accounting Referee in accordance with Section 11.06. In acting under this Agreement, the Accounting Referee will be entitled to the privileges and immunities of an arbitrator. (h) The cost of any dispute resolution pursuant to this ‎Section 2.06, including the fees and expenses of the Accounting Referee in connection with such review and report, shall be borne by Seller and Buyer in inverse proportion as they may prevail on all fees, costs and expenses of Acquiror or the matters resolved by the Accounting Referee, which proportionate allocation shall be calculated on an aggregate basis based on the relative dollar values of the amounts in dispute and shall be determined by the Accounting Referee at the time the determination of such firm is rendered on the merits of the matters submitted. The fees and disbursements of the representatives of each party incurred in connection with the preparation or review of the Final Closing Statement and preparation or review of any Notice of Disagreement, as applicable, Company Group relating thereto shall be borne by such partyAcquiror. (i) The “Adjustment Amount,” which may be positive or negative, shall mean the Closing Cash Purchase Price (as finally determined in accordance with this ‎Section 2.06) minus the Estimated Closing Cash Purchase Price. The Adjustment Amount shall be paid in accordance with ‎Section 2.06(j). (j) Promptly following the Determination Date, and in any event within three Business Days of the Determination Date: (i) If the Adjustment Amount is a positive number or zero (such amount, the “Increase Amount”), then the Cash Consideration shall be increased by an amount equal to the Increase Amount and Buyer shall pay Seller the Increase Amount (if any) in immediately available funds by wire transfer to the account or accounts designated by Seller in writing. (ii) If the Adjustment Amount is a negative number (the absolute value of such amount, the “Decrease Amount”), then the Cash Consideration shall be reduced by an amount equal to the Decrease Amount and Seller shall pay or cause to be paid to Buyer the Decrease Amount (if any) in immediately available funds by wire transfer to the account or accounts designated by Buyer in writing.

Appears in 1 contract

Samples: Share Purchase Agreement (Tribune Media Co)

Final Closing Statement. Within ninety (a90) In the 60 days following the ClosingClosing Date, Buyer Parent shall cause deliver to the Company to prepare the consolidated balance sheet and statements of income of the Company Group as of the Closing (in accordance with the Illustrative Calculations and the Transaction Accounting Principles) and such financial accounts shall, at the discretion of Seller and at Seller’s expense, be audited or reviewed by KPMG Holder Representative a statement (the “Closing Accounts”) and Buyer shall and shall cause the Company Group to provide such access, work papers, information and personnel as are reasonably requested by KPMG or Seller in connection therewith; provided that (x) any such audit shall be conducted in accordance with the procedures used in respect of ordinary course year end account audits, (y) any such review shall be conducted in accordance with procedures to be reasonably agreed upon among Buyer, Seller and KPMG (it being agreed that such procedures will include procedures appropriate for Seller’s IFRS deconsolidation purposes) and (z) Seller shall notify Buyer upon completion of KPMG’s audit or review. (b) No later than the later of (x) 60 days after the Closing Date and (y) 30 days after Seller has notified Buyer of the completion of KPMG’s audit or review (as contemplated by Section 2.06(a)), Buyer will prepare and deliver, or cause to be prepared and delivered, based on the Closing Accounts, to Seller: (i) a statement setting forth Buyer’s good faith calculation (prepared in accordance with the Illustrative Calculations, the Transaction Accounting Principles and the applicable definitions set forth in this Agreement) of: (A) Net Working Capital (“Closing Net Working Capital”), (B) the aggregate amount of all Indebtedness (“Closing Indebtedness”), (C) the aggregate amount of Cash of the Company Group (“Closing Cash”), Statement” and (D) all Transaction Expenses that were accrued or due by the Company Group and remained unpaid as of the Closing (“Closing Transaction Expenses”), in each case calculated its final and binding form as of 11:59 p.m. (New York time) on the day immediately preceding the Closing Date, except for Closing Transaction Expenses, without giving effect to the Transactions; provided that Tax items in Closing Indebtedness shall be calculated as of 11:59 p.m. (New York time) on the Closing Date; (ii) Buyer’s calculation of the Closing Net Working Capital Adjustment Amount; and (iii) on the basis of the foregoing, a calculation of the Closing Cash Purchase Price (together with the items referred to in clauses ‎(i) and ‎(ii) abovedetermined below, the “Final Closing Statement”)) setting forth the Closing Consideration and each component thereof as of immediately prior to the Closing, which including final determinations as to the amounts of (A) the Company Cash, (B) the Funded Debt and (C) the Closing Net Working Capital. The Final Closing Statement and the components thereof shall be prepared in accordance with the Illustrative Calculations, Agreed Accounting Principles. The Holder Representative shall cooperate as reasonably requested in connection with the Transaction Accounting Principles and preparation of the applicable definitions set forth in this AgreementClosing Statement. If for any reason Buyer fails to deliver During the Final Closing Statement in accordance with this Section 2.06, then thirty (30)-day period immediately following the Preliminary Closing Statement delivered by Seller to Buyer pursuant to ‎Section 2.05 shall be considered for all purposes Holder Representative’s receipt of this Agreement the Final Closing Statement, from which Seller shall have all of its rights pursuant to this Section 2.06 with respect thereto, including without limitation, the right to dispute such calculations as set forth in Section 2.06(d) through Section 2.06(i). (c) The Final Closing Statement, Closing Net Working Capital, Closing Indebtedness, Closing Transaction Expenses and Closing Cash Holder Representative shall be prepared in accordance with permitted to review Parent’s working papers related to the Illustrative Calculations, preparation of the Transaction Accounting Principles Closing Statement and determination of the Closing Consideration and the definitions of the defined terms used in this Section 2.06; provided, however, that: (i) the Final components thereof. The Closing Statement (shall become final and any amounts included therein) shall reflect no increase in any accrual, provision, write-off or reserve unless such increase is consistent with binding upon the Transaction Accounting Principles; (ii) except as set forth in parties upon the following clause ‎(iii), the Final Closing Statement (and any amounts included therein) shall not give effect to the consummation earlier of the transactions contemplated by this Agreement, including any payments of cash in respect of the Purchase Price, or any financing transactions in connection therewith or, after the Closing, any other action or omission by Buyer or any of the Company Group (excluding, with respect to the Company Group, as relates to any obligation arising prior to the Closing and not reflected in the Preliminary Closing Statement); (iii) the Final Closing Statement (and any amounts included therein) shall not reflect any expense or liability for which Buyer is responsible under this Agreement; and (iv) in the event of any inconsistency between the Transaction Accounting Principles and the Illustrative Calculations, the Transaction Accounting Principles shall prevail. Notwithstanding anything to the contrary in this Agreement, the calculations to be made pursuant to ‎Section 2.05, and the purchase price adjustment to be made pursuant to this ‎Section 2.06, shall (x) be intended to thirty (30) days following the Holder Representative’s receipt thereof, unless the Holder Representative shall give effect to the arithmetic difference between the items in the Preliminary Closing Statement and the Final Closing Statement, all written notice of which shall be determined in accordance with the Illustrative Calculations and the Transaction Accounting Principles without regard to any differences from IFRS and (y) except as provided in the Transaction Accounting Principles, be based on facts, circumstances and information available as they exist prior to the Closing and shall exclude the effect of any act, decision, change in circumstance, development or event arising or occurring on or after the Closing. Neither Section 2.05 nor Section 2.06 is intended to be used to adjust for claims that may be made with respect to the Balance Sheet or any inconsistencies or questions of interpretation between the Balance Sheet or the Transaction Accounting Principles, on the one hand, and IFRS, on the other. (d) If Seller disagrees with any of Buyer’s calculations contained in the Final Closing Statement prepared pursuant to Section 2.06(b), Seller may, within 30 days after delivery of the Final Closing Statement in accordance with Section 2.06(b), deliver a notice in writing its disagreement (a “Notice of Disagreement”) to Buyer disagreeing with Parent prior to such date and (y) the Final Closing Statement and any calculations included thereindate that the Holder Representative notifies Parent of its acceptance thereof. Any such Notice of Disagreement shall specify in reasonable detail the particulars nature and dollar amount of those items or amounts as to which Seller disagrees, and Seller shall be deemed to have agreed with all other items and amounts contained in the Final any disagreement so asserted. The Closing Statement delivered shall become final and binding upon the resolution in writing of all disagreements the parties may have with respect thereto (whether by the written agreement of the parties or pursuant to Section 2.06(bthe arbitration provisions set forth below). . During the thirty (e30) If days following delivery of a Notice of Disagreement Disagreement, Parent and the Holder Representative shall be duly delivered pursuant seek in good faith to Section 2.06(d), Buyer and Seller shall, during the 15 days following such delivery (or such longer period as resolve in writing any differences which they may mutually agree), use their respective reasonable best efforts to reach agreement have with respect to any calculations contained in the Final Closing Statement. Any disputed items resolved in writing between Buyer and Seller within such 15-day period shall be final and binding with respect to such items, and if Buyer and Seller agree in writing on the resolution of each disputed item matters specified by Seller in the Notice of Disagreement Disagreement. Following delivery of a Notice of Disagreement, Parent and its agents and Representatives shall be permitted to review the amount Holder Representative’s and its Representatives’ working papers relating to the Notice of Disagreement. If, at the end of the Closing Net Working Capital, Closing Indebtedness, Closing Cash and Closing Transaction Expensesthirty (30)-day period referred to above, the amounts so determined shall be final and binding on matters in dispute have not been fully resolved, then the parties for all purposes hereunder and shall not be subject to appeal or further review. (f) If Buyer and Seller are unable to reach such agreement during such 15-day period, then any such remaining disagreements (such remaining disagreements, the “Disputed Matters”) shall be submitted promptly by Buyer and Seller (along with their briefs detailing their views as to the correct nature and amount of each item remaining in dispute and the amounts of the Closing Net Working Capital, Closing Indebtedness, Closing Cash and Closing Transaction Expenses) submit to Ernst & Young LLP or, if such firm is unwilling (or unable to serve, such other mutually agreed independent accountants of nationally recognized standing) (any such accounting firm of internationally recognized standing as may be mutually selected by Buyer and Seller (firm, the “Accounting RefereeFirm)) for review and resolution of all matters (but only such matters) which remain in dispute, to review this Agreement and the Disputed Matters for Accounting Firm shall make a final determination of the purpose Closing Consideration and the components thereof to the extent such amounts are in dispute, in accordance with the guidelines and procedures set forth in this Agreement. The parties will reasonably cooperate with the Accounting Firm during the term of calculating its engagement. The Accounting Firm shall be provided reasonable access to the Purchase Pricebooks, records and other relevant information of the Company, Parent and the Holder Representative to the extent necessary to calculate the Closing Consideration. In making such calculationresolving any matters in dispute, the Accounting Referee shall be bound by the terms of this Agreement, including the definitions of Purchase Price, Closing Cash, Closing Net Working Capital, Closing Net Working Capital Adjustment Amount and the terms of this ‎Section 2.06, shall consider only the Disputed Matters and shall Firm may not assign a value to any Disputed Matter item in dispute greater than the greatest value for such item claimed assigned by either party Parent in the Closing Statement, on the one hand, or the Holder Representative in the Notice of Disagreement, on the other hand, or less than the smallest value for such item claimed assigned by either partyParent in the Closing Statement, on the one hand, or the Holder Representative in the Notice of Disagreement, on the other hand. The Accounting RefereeFirm’s determination of any Disputed Matter shall be based solely on written materialspresentations by Parent and the Holder Representative which are in accordance with the guidelines and procedures set forth in this Agreement (i.e., presentations and arguments submitted and/or made by Buyer and Seller, and shall not be based on the basis of an independent review. ). Absent fraud committed by the Accounting Firm or manifest error (g) Each party as to which Parent and the Holder Representative mutually agree), the Closing Statement and the determination of the Closing Consideration and the components thereof shall promptly make available become final and binding on the parties on the date the Accounting Firm delivers its final resolution in writing to the parties (which the Accounting Firm shall be instructed to deliver not more than forty-five (45) days following submission of such disputed matters). The Accounting Firm shall act as an expert and not as an arbitrator to determine solely the matters in dispute based solely on the submissions and responses of Parent, on the one hand, and the Holder Representative, on the other party any hand. The Accounting Firm shall allocate its costs and all submissions provided expenses between Parent and the Holder Representative, on behalf of the Holders, based upon the percentage of the contested amount submitted to the Accounting Referee in connection with Firm that is ultimately awarded to Parent, on the Accounting Referee’s review one hand, or the Holder Representative on behalf of the Holders, on the other hand, such that Parent bears a percentage of such costs and calculation. The Accounting Referee shall deliver expenses equal to Buyer the percentage of the contested amount awarded to the Holders and Seller, as promptly as practicable, the Holders bear a report setting forth percentage of such calculation, which report shall costs and expenses equal to the percentage of the contested amount awarded to Parent (such amount payable by the Holder Representative on behalf of the Holders to be final and binding upon Buyer and Seller. The date on which Closing Net Working Capital, Closing Indebtedness, Closing Cash, Closing Net Working Capital Adjustment Amount and Closing Cash deducted from the Purchase Price are finally determined in accordance with this ‎Section 2.06 is hereinafter referred to as the “Determination Date.” Notwithstanding the foregoing, Seller Adjustment Holdback and Buyer shall use their commercially reasonable efforts to cause the Accounting Referee to render a written decision resolving the Disputed Matters within 30 days following the submission thereof. Judgment may be entered upon the written determination of the Accounting Referee retained by Parent in accordance with Section 11.06. In acting under this Agreement, the Accounting Referee will be entitled to the privileges and immunities of an arbitrator. (h) The cost of any dispute resolution pursuant to this ‎Section 2.06, including the fees and expenses of the Accounting Referee in connection with such review and report, shall be borne by Seller and Buyer in inverse proportion as they may prevail on the matters resolved by the Accounting Referee, which proportionate allocation shall be calculated on an aggregate basis based on the relative dollar values of the amounts in dispute and shall be determined by the Accounting Referee at the time the determination of such firm is rendered on the merits of the matters submitted. The fees and disbursements of the representatives of each party incurred in connection with the preparation or review of the Final Closing Statement and preparation or review of any Notice of Disagreement, as applicable, shall be borne by such party. (i) The “Adjustment Amount,” which may be positive or negative, shall mean the Closing Cash Purchase Price (as finally determined in accordance with this ‎Section 2.06) minus the Estimated Closing Cash Purchase Price. The Adjustment Amount shall be paid in accordance with ‎Section 2.06(j4.1(c)(ii)). (j) Promptly following the Determination Date, and in any event within three Business Days of the Determination Date: (i) If the Adjustment Amount is a positive number or zero (such amount, the “Increase Amount”), then the Cash Consideration shall be increased by an amount equal to the Increase Amount and Buyer shall pay Seller the Increase Amount (if any) in immediately available funds by wire transfer to the account or accounts designated by Seller in writing. (ii) If the Adjustment Amount is a negative number (the absolute value of such amount, the “Decrease Amount”), then the Cash Consideration shall be reduced by an amount equal to the Decrease Amount and Seller shall pay or cause to be paid to Buyer the Decrease Amount (if any) in immediately available funds by wire transfer to the account or accounts designated by Buyer in writing.

Appears in 1 contract

Samples: Merger Agreement (CONMED Corp)

Final Closing Statement. Within ninety (a90) In the 60 days following the Closing, Buyer shall cause the Company to prepare the consolidated balance sheet and statements of income of the Company Group as of the Closing (in accordance with the Illustrative Calculations and the Transaction Accounting Principles) and such financial accounts shall, at the discretion of Seller and at Seller’s expense, be audited or reviewed by KPMG (the “Closing Accounts”) and Buyer shall and shall cause the Company Group to provide such access, work papers, information and personnel as are reasonably requested by KPMG or Seller in connection therewith; provided that (x) any such audit shall be conducted in accordance with the procedures used in respect of ordinary course year end account audits, (y) any such review shall be conducted in accordance with procedures to be reasonably agreed upon among Buyer, Seller and KPMG (it being agreed that such procedures will include procedures appropriate for Seller’s IFRS deconsolidation purposes) and (z) Seller shall notify Buyer upon completion of KPMG’s audit or review. (b) No later than the later of (x) 60 days after the Closing Date and (y) 30 days after Seller has notified Buyer of the completion of KPMG’s audit or review (as contemplated by Section 2.06(a))Date, Buyer will shall prepare and deliver, or cause to be prepared and delivered, based on the Closing Accounts, to Seller: Seller a final closing statement (i) a statement setting forth Buyer’s good faith calculation (prepared in accordance with the Illustrative Calculations, the Transaction Accounting Principles and the applicable definitions set forth in this Agreement) of: (A) Net Working Capital (“Closing Net Working Capital”), (B) the aggregate amount of all Indebtedness (“Closing Indebtedness”), (C) the aggregate amount of Cash of the Company Group (“Closing Cash”), and (D) all Transaction Expenses that were accrued or due by the Company Group and remained unpaid as of the Closing (“Closing Transaction Expenses”), in each case calculated as of 11:59 p.m. (New York time) on the day immediately preceding the Closing Date, except for Closing Transaction Expenses, without giving effect to the Transactions; provided that Tax items in Closing Indebtedness shall be calculated as of 11:59 p.m. (New York time) on the Closing Date; (ii) Buyer’s calculation of the Closing Net Working Capital Adjustment Amount; and (iii) on the basis of the foregoing, a calculation of the Closing Cash Purchase Price (together with the items referred to in clauses ‎(i) and ‎(ii) above, the “Final Closing Statement”), which setting forth Buyer’s good faith calculations of (i) Net Working Capital ( “Final Net Working Capital”), (ii) Closing Cash Balance (“Final Closing Cash Balance”), (iii) Company Debt (“Final Company Debt”), (iv) Selling Expenses ( “Final Selling Expenses”) based on the amounts set forth in clauses (i) through (v), the resulting Adjusted Closing Date Consideration (as defined below), in each case, in reasonable detail. The Final Closing Statement shall be prepared in accordance with the Illustrative Calculations, the Transaction Accounting Principles and the applicable definitions set forth in this Agreement. If for any reason Buyer fails to deliver the Final Closing Statement in accordance with this Section 2.06, then the Preliminary Closing Statement delivered by Seller to Buyer pursuant to ‎Section 2.05 shall be considered for all purposes of this Agreement the Final Closing Statement, from which Seller shall have all of its rights pursuant to this Section 2.06 with respect thereto, including without limitation, the right to dispute such calculations as set forth in Section 2.06(d) through Section 2.06(i). (c) The Final Closing Statement, Closing Net Working Capital, Closing Indebtedness, Closing Transaction Expenses and Closing Cash shall be prepared in accordance with the Illustrative Calculations, the Transaction Accounting Principles and the definitions of the defined terms used in this Section 2.06; providedcontained herein and shall, however, that: (i) the Final Closing Statement (and any amounts included therein) shall reflect no increase in any accrual, provision, write-off or reserve unless such increase is consistent with the Transaction Accounting Principles; (ii) except as explicitly set forth in the following clause ‎(iii)Accounting Principles, (A) not include any changes in assets or liabilities as a result of purchase accounting or other changes arising from or resulting as a consequence of the Final transactions contemplated hereby, (B) calculate any accruals or other non-cash expense items on a pro rata (as opposed to monthly accrual) basis to account for a Closing Statement that occurs on any date other than the last day of a calendar month, to the extent consistent with GAAP, and (and any amounts included thereinC) shall not give effect to the consummation of the transactions contemplated by this Agreement, including any payments of cash in respect of the Purchase Price, Agreement or any financing transactions in connection therewith or, after the Closing, any other action obtained or omission to be obtained by Buyer or any of its Affiliates (including the Company Group at or following the Closing) or any other transaction entered into by Buyer or any of its Affiliates (excluding, with respect to including the Company Group, as relates at or following the Closing) or any other facts unique or particular to Buyer or any obligation arising prior to of its Affiliates or any of their respective assets or liabilities. The Parties agree that the Closing and not reflected in the Preliminary Closing Statement); (iii) purpose of preparing the Final Closing Statement and determining the Adjusted Closing Date Consideration contemplated by this Section 2.3 is to measure the amount of change (and any amounts included thereinif any) shall not reflect any expense or liability for which Buyer is responsible under this Agreement; and (iv) in the event of any inconsistency between the Transaction Accounting Principles and the Illustrative Calculations, the Transaction Accounting Principles shall prevail. Notwithstanding anything to the contrary in this Agreement, the calculations to be made pursuant to ‎Section 2.05, and the purchase price adjustment to be made pursuant to this ‎Section 2.06, shall (x) be intended to give effect to the arithmetic difference between the items in the Preliminary Estimated Closing Statement and the Final Closing Statement, all and such processes are not intended to permit the introduction of which shall be determined different accounting methods, policies, principles, practices, procedures, classifications or estimation methodologies than those described in accordance with the Illustrative Calculations and the Transaction Accounting Principles without regard to any differences from IFRS and (y) except as provided in for the Transaction Accounting Principles, be based on facts, circumstances and information available as they exist prior to the Closing and shall exclude the effect purpose of any act, decision, change in circumstance, development or event arising or occurring on or after the Closing. Neither Section 2.05 nor Section 2.06 is intended to be used to adjust for claims that may be made with respect to the Balance Sheet or any inconsistencies or questions of interpretation between the Balance Sheet or the Transaction Accounting Principles, on the one hand, and IFRS, on the other. (d) If Seller disagrees with any of Buyer’s calculations contained in preparing the Final Closing Statement prepared pursuant or determining Final Net Working Capital, Final Closing Cash Balance, Final Company Debt and Final Selling Expenses. If Buyer does not deliver the Final Closing Statement to Section 2.06(b), Seller may, within 30 ninety (90) days after delivery the Closing Date, then, at the election of Seller, either (x) Seller may prepare and present to Buyer the Final Closing Statement within an additional thirty (30) days thereafter or (y) the Estimated Closing Statement will be deemed to be the Final Closing Statement and each item on the Estimated Closing Statement shall be deemed undisputed and the Estimated Closing Statement shall be final, conclusive and binding on the parties hereto and not subject to appeal for all purposes under this Agreement. If Seller elects to prepare the Final Closing Statement in accordance with clause (x) of the immediately preceding sentence, then all subsequent references in Section 2.06(b), deliver a notice in writing (a “Notice of Disagreement”2.3(c) to Buyer disagreeing with the Final Closing Statement and any calculations included therein. Any such Notice of Disagreement shall specify in reasonable detail the particulars of those items or amounts as to which Seller disagrees, and Seller shall will be deemed to have agreed with all other items and amounts contained in the Final Closing Statement delivered pursuant be references to Section 2.06(b). (e) If a Notice of Disagreement shall be duly delivered pursuant to Section 2.06(d), Buyer and Seller shall, during the 15 days following such delivery (or such longer period as they may mutually agree), use their respective reasonable best efforts to reach agreement with respect to any calculations contained in the Final Closing Statement. Any disputed items resolved in writing between Buyer and Seller within such 15-day period shall be final and binding with respect to such items, and if Buyer and Seller agree in writing on the resolution of each disputed item specified by Seller in the Notice of Disagreement and the amount of the Closing Net Working Capital, Closing Indebtedness, Closing Cash and Closing Transaction Expenses, the amounts so determined shall be final and binding on the parties for all purposes hereunder and shall not be subject to appeal or further review. (f) If Buyer and Seller are unable to reach such agreement during such 15-day period, then any such remaining disagreements (such remaining disagreements, the “Disputed Matters”) shall be submitted promptly by Buyer and Seller (along with their briefs detailing their views as to the correct nature and amount of each item remaining in dispute and the amounts of the Closing Net Working Capital, Closing Indebtedness, Closing Cash and Closing Transaction Expenses) to Ernst & Young LLP or, if such firm is unwilling or unable to serve, such other independent accounting firm of internationally recognized standing as may be mutually selected by Buyer and Seller (the “Accounting Referee”), to review this Agreement and the Disputed Matters for the purpose of calculating the Purchase Price. In making such calculation, the Accounting Referee shall be bound by the terms of this Agreement, including the definitions of Purchase Price, Closing Cash, Closing Net Working Capital, Closing Net Working Capital Adjustment Amount and the terms of this ‎Section 2.06, shall consider only the Disputed Matters and shall not assign a value to any Disputed Matter greater than the greatest value for such item claimed by either party or less than the smallest value for such item claimed by either party. The Accounting Referee’s determination of any Disputed Matter shall be based solely on written materials, presentations and arguments submitted and/or made by Buyer and Seller, and shall not be based on an independent review. (g) Each party shall promptly make available to the other party any and all submissions provided subsequent references to the Accounting Referee in connection with the Accounting Referee’s review and calculation. The Accounting Referee shall deliver to Buyer and Seller, as promptly as practicable, a report setting forth such calculation, which report shall be final and binding upon Buyer and Seller. The date on which Closing Net Working Capital, Closing Indebtedness, Closing Cash, Closing Net Working Capital Adjustment Amount and Closing Cash Purchase Price are finally determined in accordance with this ‎Section 2.06 is hereinafter referred to as the “Determination Date.” Notwithstanding the foregoing, Seller and Buyer shall use their commercially reasonable efforts to cause the Accounting Referee to render a written decision resolving the Disputed Matters within 30 days following the submission thereof. Judgment may be entered upon the written determination of the Accounting Referee in accordance with Section 11.06. In acting under this Agreement, the Accounting Referee will be entitled to the privileges and immunities of an arbitrator. (h) The cost of any dispute resolution pursuant to this ‎Section 2.06, including the fees and expenses of the Accounting Referee in connection with such review and report, shall be borne by Seller and Buyer in inverse proportion as they may prevail on the matters resolved by the Accounting Referee, which proportionate allocation shall be calculated on an aggregate basis based on the relative dollar values of the amounts in dispute and shall be determined by the Accounting Referee at the time the determination of such firm is rendered on the merits of the matters submitted. The fees and disbursements of the representatives of each party incurred in connection with the preparation or review of the Final Closing Statement and preparation or review of any Notice of Disagreement, as applicable, shall be borne by such party. (i) The “Adjustment Amount,” which may be positive or negative, shall mean the Closing Cash Purchase Price (as finally determined in accordance with this ‎Section 2.06) minus the Estimated Closing Cash Purchase Price. The Adjustment Amount shall be paid in accordance with ‎Section 2.06(j). (j) Promptly following the Determination Date, and in any event within three Business Days of the Determination Date: (i) If the Adjustment Amount is a positive number or zero (such amount, the “Increase Amount”), then the Cash Consideration shall be increased by an amount equal to the Increase Amount and Buyer shall pay Seller the Increase Amount (if any) in immediately available funds by wire transfer to the account or accounts designated by Seller in writing. (ii) If the Adjustment Amount is a negative number (the absolute value of such amount, the “Decrease Amount”), then the Cash Consideration shall be reduced by an amount equal to the Decrease Amount and Seller shall pay or cause deemed to be paid references to Buyer the Decrease Amount (if any) in immediately available funds by wire transfer to the account or accounts designated by Buyer in writingBuyer.

Appears in 1 contract

Samples: Stock Purchase Agreement (Blucora, Inc.)

Final Closing Statement. Within sixty (a60) In the 60 days following the Closing, Buyer shall cause the Company to prepare the consolidated balance sheet and statements of income of the Company Group as of the Closing (in accordance with the Illustrative Calculations and the Transaction Accounting Principles) and such financial accounts shall, at the discretion of Seller and at Seller’s expense, be audited or reviewed by KPMG (the “Closing Accounts”) and Buyer shall and shall cause the Company Group to provide such access, work papers, information and personnel as are reasonably requested by KPMG or Seller in connection therewith; provided that (x) any such audit shall be conducted in accordance with the procedures used in respect of ordinary course year end account audits, (y) any such review shall be conducted in accordance with procedures to be reasonably agreed upon among Buyer, Seller and KPMG (it being agreed that such procedures will include procedures appropriate for Seller’s IFRS deconsolidation purposes) and (z) Seller shall notify Buyer upon completion of KPMG’s audit or review. (b) No later than the later of (x) 60 days after the Closing Date and (y) 30 days after Seller has notified Buyer of the completion of KPMG’s audit or review (as contemplated by Section 2.06(a))Date, Buyer will Purchaser shall prepare and deliver, or cause to be prepared and delivered, based on the Closing Accounts, to Seller: (i) a statement setting forth Buyer’s good faith calculation (prepared in accordance with the Illustrative Calculations, the Transaction Accounting Principles and the applicable definitions set forth in this Agreement) of: (A) Net Working Capital (“Closing Net Working Capital”), (B) the aggregate amount of all Indebtedness (“Closing Indebtedness”), (C) the aggregate amount of Cash of the Company Group (“Closing Cash”), and (D) all Transaction Expenses that were accrued or due by the Company Group and remained unpaid as of the Closing (“Closing Transaction Expenses”), in each case calculated as of 11:59 p.m. (New York time) on the day immediately preceding the Closing Date, except for Closing Transaction Expenses, without giving effect deliver to the Transactions; provided that Tax items in Closing Indebtedness shall be calculated as of 11:59 p.m. Equityholder Representative a closing statement (New York time) on the Closing Date; (ii) Buyer’s calculation of the Closing Net Working Capital Adjustment Amount; and (iii) on the basis of the foregoing, a calculation of the Closing Cash Purchase Price (together with the items referred to in clauses ‎(i) and ‎(ii) above, the “Final Closing Statement”), which shall be will reflect Purchaser’s determination of (i) the Transaction Expenses, (ii) the Closing Working Capital, (iii) the Closing Indebtedness, and (iv) the Closing Cash, in each case, in reasonable detail prepared in accordance with the Illustrative Calculations, the Transaction Accounting Principles relevant definitions and the applicable definitions set forth schedules in this Agreement, and shall not include any changes in assets or liabilities as a result of purchase accounting adjustments or other changes arising from or resulting as a consequence of the transactions contemplated hereby or after the Closing or otherwise at the direction of the Purchaser. If for any reason Buyer fails The Parties agree that the purpose of this provision is to deliver ensure that the Final preparation of the Closing Statement reflects only Purchaser’s determination of the items set forth therein in accordance with this Section 2.06Agreement, then and does not permit the Preliminary Closing Statement delivered by Seller to Buyer pursuant to ‎Section 2.05 shall be considered for all purposes introduction of this Agreement different accounting methods, policies, principles, or practices beyond those described in the Final Closing Statement, from which Seller shall have all of its rights pursuant to this Section 2.06 with respect thereto, including without limitation, the right to dispute such calculations as set forth in Section 2.06(d) through Section 2.06(i). (c) The Final Closing Statement, Closing Net Working Capital, Closing Indebtedness, Closing Transaction Expenses relevant definitions and Closing Cash shall be prepared in accordance with the Illustrative Calculations, the Transaction Accounting Principles and the definitions of the defined terms used schedules in this Section 2.06; provided, however, that:Agreement. (i) If the Final Closing Statement (and any amounts included therein) shall reflect no increase in any accrual, provision, write-off or reserve unless such increase is consistent Equityholder Representative disagrees with Purchaser’s determination of the Transaction Accounting Principles; (ii) except as set forth in the following clause ‎(iii)Expenses, the Final Closing Statement (and any amounts included therein) shall not give effect to Working Capital, the consummation of Closing Indebtedness or the transactions contemplated by this AgreementClosing Cash, including any payments of cash in respect of the Purchase Price, or any financing transactions in connection therewith or, after the Closing, any other action or omission by Buyer or any of the Company Group (excluding, with respect to the Company Groupeach case, as relates to any obligation arising prior to reflected on the Closing and not reflected in the Preliminary Closing Statement); (iii) the Final Closing Statement (and any amounts included therein) shall not reflect any expense or liability for which Buyer is responsible under this Agreement; and (iv) in the event of any inconsistency between the Transaction Accounting Principles and the Illustrative Calculations, the Transaction Accounting Principles shall prevail. Notwithstanding anything to the contrary in this Agreement, the calculations to be made pursuant to ‎Section 2.05, and the purchase price adjustment to be made pursuant to this ‎Section 2.06, shall (x) be intended to give effect to the arithmetic difference between the items in the Preliminary Closing Statement and the Final Closing Statement, all of which shall be determined in accordance with the Illustrative Calculations and the Transaction Accounting Principles without regard to any differences from IFRS and (y) except as provided in the Transaction Accounting Principles, be based on facts, circumstances and information available as they exist prior to the Closing and shall exclude the effect of any act, decision, change in circumstance, development or event arising or occurring on or after the Closing. Neither Section 2.05 nor Section 2.06 is intended to be used to adjust for claims that may be made with respect to the Balance Sheet or any inconsistencies or questions of interpretation between the Balance Sheet or the Transaction Accounting Principles, on the one hand, and IFRS, on the other. (d) If Seller disagrees with any of Buyer’s calculations contained in the Final Closing Statement prepared pursuant to Section 2.06(b), Seller Equityholder Representative may, within 30 forty-five (45) days after delivery by Purchaser of the Final Closing Statement in accordance with Section 2.06(b)Statement, deliver a written notice in writing (a the “Notice of Disagreement”) to Buyer disagreeing with Purchaser setting forth in reasonable detail, (i) each item of dispute (each an “Item of Dispute”), (ii) the Final dollar amount and the basis for each such Item of Dispute and (iii) the Equityholder Representative’s calculation of each such Item of Dispute. If Purchaser does not receive a Notice of Disagreement within forty-five (45) days after delivery by Purchaser of the Closing Statement, the Closing Statement shall be conclusive and binding upon each of the Parties. (ii) If Purchaser receives a Notice of Disagreement from the Equityholder Representative within forty-five (45) days after delivery by Purchaser of the Closing Statement, Purchaser and the Equityholder Representative shall attempt in good faith to resolve each Item of Dispute (and all such discussions related thereto shall, unless otherwise agreed in writing by Purchaser and the Equityholder Representative, be governed by Rule 408 of the Federal Rules of Evidence (and any applicable similar state rule)), and, if any Item of Dispute is so resolved, the Closing Statement and any calculations included therein. Any such Notice of Disagreement shall specify in reasonable detail the particulars of those items or amounts as to which Seller disagrees, and Seller shall be deemed to have agreed with all other items and amounts contained in the Final Closing Statement delivered pursuant to Section 2.06(b). (e) If a Notice of Disagreement shall be duly delivered pursuant modified to Section 2.06(d), Buyer and Seller shall, during the 15 days following extent necessary to reflect such resolution. If any Item of Dispute remains unresolved as of the thirtieth (30th) day after timely delivery (or such longer period as they may mutually agree), use their respective reasonable best efforts to reach agreement with respect to any calculations contained in by the Final Closing Statement. Any disputed items resolved in writing between Buyer and Seller within such 15-day period shall be final and binding with respect to such items, and if Buyer and Seller agree in writing on the resolution Equityholder Representative of each disputed item specified by Seller in the Notice of Disagreement Disagreement, Purchaser and the amount of the Closing Net Working Capital, Closing Indebtedness, Closing Cash and Closing Transaction Expenses, the amounts so determined Equityholder Representative shall be final and binding on the parties for all purposes hereunder and shall not be subject to appeal or further review. jointly retain Xxxx Xxxxx (f) If Buyer and Seller are unable to reach such agreement during such 15-day period, then any such remaining disagreements (such remaining disagreements, the “Disputed Matters”) shall be submitted promptly by Buyer and Seller (along with their briefs detailing their views as to the correct nature and amount of each item remaining in dispute and the amounts of the Closing Net Working Capital, Closing Indebtedness, Closing Cash and Closing Transaction Expenses) to Ernst & Young LLP or, if such firm is unable or unwilling or unable to serveserve in such capacity, such other independent accounting firm of internationally recognized standing as may be upon which Purchaser and the Equityholder Representative mutually selected by Buyer and Seller agree in writing) (the “Accounting RefereeAccountants) to resolve such remaining disagreement (acting as an expert and not as an arbitrator), it being understood that any item not included as an Item of Dispute in the Notice of Disagreement in the form delivered to review this Agreement and the Disputed Matters for the purpose of calculating the Purchase Price. In making such calculation, the Accounting Referee Accountants shall be bound by the terms of this Agreement, including the definitions of Purchase Price, Closing Cash, Closing Net Working Capital, Closing Net Working Capital Adjustment Amount and the terms of this ‎Section 2.06, shall consider only the Disputed Matters and shall not assign a value to any Disputed Matter greater than the greatest value for such item claimed by either party or less than the smallest value for such item claimed by either party. The Accounting Referee’s determination of any Disputed Matter shall be based solely on written materials, presentations and arguments submitted and/or made by Buyer and Seller, and shall not be based on an independent review. (g) Each party shall promptly make available to the other party any and all submissions provided to the Accounting Referee in connection with the Accounting Referee’s review and calculation. The Accounting Referee shall deliver to Buyer and Seller, as promptly as practicable, a report setting forth such calculation, which report shall be final conclusive and binding upon Buyer and Seller. The date on which Closing Net Working Capital, Closing Indebtedness, Closing Cash, Closing Net Working Capital Adjustment Amount and Closing Cash Purchase Price are finally determined in accordance with this ‎Section 2.06 is hereinafter referred to as the “Determination Date.” Notwithstanding the foregoing, Seller and Buyer shall use their commercially reasonable efforts to cause the Accounting Referee to render a written decision resolving the Disputed Matters within 30 days following the submission thereof. Judgment may be entered upon the written determination each of the Accounting Referee in accordance with Section 11.06. In acting under this Agreement, the Accounting Referee will be entitled to the privileges and immunities of an arbitrator. (h) The cost of any dispute resolution pursuant to this ‎Section 2.06, including the fees and expenses of the Accounting Referee in connection with such review and report, shall be borne by Seller and Buyer in inverse proportion Parties as they may prevail set forth on the matters resolved by the Accounting Referee, which proportionate allocation shall be calculated on an aggregate basis based on the relative dollar values of the amounts in dispute Closing Statement. Purchaser and shall be determined by the Accounting Referee at the time the determination of such firm is rendered on the merits of the matters submitted. The fees and disbursements of the representatives of each party incurred in connection with the preparation or review of the Final Closing Statement and preparation or review of any Notice of Disagreement, as applicable, shall be borne by such party. (i) The “Adjustment Amount,” which may be positive or negative, shall mean the Closing Cash Purchase Price (as finally determined in accordance with this ‎Section 2.06) minus the Estimated Closing Cash Purchase Price. The Adjustment Amount shall be paid in accordance with ‎Section 2.06(j). (j) Promptly following the Determination Date, and in any event within three Business Days of the Determination Date: (i) If the Adjustment Amount is a positive number or zero (such amount, the “Increase Amount”), then the Cash Consideration shall be increased by an amount equal to the Increase Amount and Buyer shall pay Seller the Increase Amount (if any) in immediately available funds by wire transfer to the account or accounts designated by Seller in writing. (ii) If the Adjustment Amount is a negative number (the absolute value of such amount, the “Decrease Amount”), then the Cash Consideration shall be reduced by an amount equal to the Decrease Amount and Seller shall pay or cause to be paid to Buyer the Decrease Amount (if any) in immediately available funds by wire transfer to the account or accounts designated by Buyer in writing.the

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Samples: Merger Agreement (Appfolio Inc)