Merger Consideration Adjustment. (a) At least three (3) Business Days prior to the Closing Date (provided, however, with respect to the delivery in clause (vi) of this Section 2.10(a), at least ten (10) days prior to the Closing Date, the Company shall deliver the supporting statement including preliminary estimates of the applicable amounts referred to in clause (vi) below which shall be updated on such third Business Day), the Company shall deliver to Parent a statement (the “Estimated Closing Statement”) that shall set forth a calculation of good faith estimates of (or include) (i) the estimated amount of the Closing Working Capital (the “Estimated Working Capital Amount”), (ii) the estimated amount of Closing Indebtedness (the “Estimated Closing Indebtedness”), (iii) the estimated amount of Closing Cash (the “Estimated Closing Cash”) (including the most recent bank statements (or electronic statement) on which the good faith estimate of the Estimated Closing Cash was based), (iv) the estimated amount of Transaction Expenses (the “Estimated Transaction Expenses”), (v) the estimated amount of the Closing Net Tax Asset Position (including a supporting statement in the form of Schedule 1 reflecting the amounts therein as of the Adjustment Time) (the “Estimated Closing Net Tax Asset Position”) and (vi) the estimated amount of the Closing Transaction Tax Benefit Amount (including a supporting statement in the form of Schedule 4 and including confirmation in writing by a “Big Four” national accounting firm that each of the Transaction Tax Deductions are deductible for applicable income Tax purposes at a “more likely than not” level of comfort (which, for the avoidance of doubt, shall not require the delivery of a formal opinion letter)) (the “Estimated Closing Transaction Tax Benefit Amount”), and its calculation of the Aggregate Estimated Consideration. If, following receipt of the Estimated Closing Statement and the Incentive Share Payment Schedule, Parent disagrees with any portion of the Estimated Closing Statement or the Incentive Share Payment Schedule, Parent and the Company shall cooperate in good faith to resolve Parent’s disagreements and the Estimated Closing Statement and the Incentive Share Payment Schedule shall be updated for any items resolved by Parent and the Company. If Parent and the Company fail to resolve any of Parent’s disagreements prior to the date by which the Closing is to occur as contemplated by Section 2.2(a), the Estimated Closing Statement and the Incentive Share Payment Schedule and the calculations therein as originally delivered by the Company (as modified by any items agreed to by Parent and the Company) shall be conclusive and binding upon Parent for the purposes of determining the Aggregate Estimated Consideration. (b) At least three (3) Business Days prior to the Closing Date, the Company shall deliver to Parent a schedule (the “Incentive Share Payment Schedule”) setting forth the aggregate consideration payable to the Incentive Shares outstanding immediately prior to the Effective Time and the consideration payable in respect of each Incentive Share outstanding immediately prior to the Effective Time, in each case calculated in accordance with the terms of the Articles of Association, the Incentive Share Plan and any applicable award agreements and determined assuming the Company had distributed an amount of cash to all holders of Ordinary Shares, Options, Incentive Shares and Restricted Stock Units equal to the aggregate consideration payable to all such holders as consideration in the Merger. (c) As soon as reasonably practicable after the Closing Date, and in any event within sixty (60) days after the Closing Date, (A) Parent shall prepare and deliver to the Shareholder Representative a statement (the “Closing Statement”) that shall set forth a calculation of (i) the Closing Working Capital, (ii) the Closing Indebtedness, (iii) the Closing Cash, (iv) the Transaction Expenses, (v) the Closing Net Tax Asset Position and (vi) the Closing Transaction Tax Benefit Amount. The Estimated Closing Statement and the Closing Statement shall entirely disregard any financing or refinancing arrangements entered into at any time by Parent or its Affiliates in connection with the consummation of the transactions contemplated hereby or any facts or circumstances that are unique or particular to Parent or any of its assets or liabilities. (d) During the thirty (30) days immediately following the Shareholder Representative’s receipt of the Closing Statement (the “Adjustment Review Period”), the Shareholder Representative and its Representatives shall be permitted to review the Company’s and its Subsidiaries’ working papers and, after signing a customary confidentiality and hold harmless agreement in form and substance reasonably acceptable to the Company’s independent accountants, the working papers of the Company’s independent accountants, if any, relating to the preparation of the Closing Statement and the calculation of the Closing Working Capital, Closing Indebtedness, Closing Cash, Transaction Expenses, Closing Net Tax Asset Position and Closing Transaction Tax Benefit Amount, and Parent shall, and shall cause the Surviving Company and its Representatives to, reasonably cooperate with respect to the Shareholder Representative’s review (to the extent that it does not unreasonably interfere with the Company’s business). The Shareholder Representative shall notify Parent in writing (the “Notice of Adjustment Disagreement”) on or prior to the last day of the Adjustment Review Period if the Shareholder Representative disagrees with any portion of the Closing Statement. The Notice of Adjustment Disagreement shall set forth in reasonable detail the basis for such disagreement, the amounts involved and the Shareholder Representative’s adjustments to the Closing Statement with reasonably detailed supporting documentation. If no Notice of Adjustment Disagreement is received by Parent on or prior to the expiration date of the Adjustment Review Period, then the Closing Statement and all amounts set forth therein shall be deemed to have been accepted by the Shareholder Representative and shall become final and binding upon the parties hereto. During the fifteen (15) days immediately following the delivery of a Notice of Adjustment Disagreement (the “Adjustment Resolution Period”), the Shareholder Representative and Parent shall seek in good faith to resolve any disagreement that they may have with respect to the matters specified in the Notice of Adjustment Disagreement. Any items agreed to by the Shareholder Representative and Parent in writing, together with any items not disputed or objected to by the Shareholder Representative in the Notice of Adjustment Disagreement, are collectively referred to herein as the “Resolved Matters.” If at the end of the Adjustment Resolution Period the parties have been unable to resolve any differences they may have with respect to the matters specified in the Notice of Adjustment Disagreement, then either the Shareholder Representative or Parent may refer all matters that remain in dispute with respect to the Notice of Adjustment Disagreement (the “Unresolved Matters”) to Duff & Xxxxxx, LLC (the “Independent Accountant”). In the event that Duff & Xxxxxx, LLC refuses or is otherwise unable to act as the Independent Accountant, the Shareholder Representative and Parent shall cooperate in good faith to appoint an independent certified public accounting firm in the United States of national recognition mutually agreeable to the Shareholder Representative and Parent, in which event “Independent Accountant” shall mean such firm. Within thirty (30) days after the submission of such matters to the Independent Accountant, the Independent Accountant, acting as an expert and not as an arbitrator, will make a final determination, binding on the parties hereto, of the appropriate amount of each of the Unresolved Matters. With respect to each Unresolved Matter, such determination, if not in accordance with the position of either the Shareholder Representative or Parent, shall not be in excess of the higher, nor less than the lower, of the amounts advocated by the Shareholder Representative in the Notice of Adjustment Disagreement or Parent in the Closing Statement with respect to such Unresolved Matter. For the avoidance of doubt, the Independent Accountant shall not review any line items or make any determination with respect to any matter other than the Unresolved Matters. During the review by the Independent Accountant, Parent and the Company shall each make available to the Independent Accountant such information, books, records and work papers, as may be reasonably required by the Independent Accountant to fulfill its obligations under this Section 2.10(d); provided, however, that the independent accountants of Parent or the Company shall not be obligated to make any working papers available to the Independent Accountant unless and until the Independent Accountant has signed a customary confidentiality and hold harmless agreement relating to such access to working papers in form and substance reasonably acceptable to such independent accountants. The fees, costs and expenses of the Independent Accountant shall be allocated to and borne by Parent, on the one hand, and the Shareholder Representative (on behalf of the Equityholders), on the other hand, based on the inverse of the percentage that the Independent Accountant’s determination (before such allocation) bears to the total amount of the items in dispute as originally submitted to the Independent Accountant. For example, should the items in dispute total in amount equal to $1,000 and the Independent Accountant awards $600 in favor of the Shareholder Representative’s position, 60% of the costs of its review would be borne by Parent and 40% of the costs would be borne by the Shareholder Representative (on behalf of the Equityholders).
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Merger Consideration Adjustment. (a) Pre-Closing Adjustment.
(i) At least three (3) Business Days prior to the anticipated Closing Date, the Company shall prepare and deliver to Parent (A) a schedule (the “Estimated Schedule”) which shall set forth, in reasonable detail, (I) the Estimated Closing Indebtedness, (II) a good faith estimate of the Company Transaction Expenses (the “Estimated Company Transaction Expenses”), (III) the amount and calculation of the Exchange Ratio, Company Per Share Merger Consideration and Aggregate Closing Date Merger Consideration based on the foregoing estimated amounts, and (providedIV) the amount of Merger Consideration payable at Closing to each holder of Company Stock and Company Stock Options, howeverand (B) a certificate executed by the Chief Financial Officer of the Company certifying each of the foregoing. If, for any reason, the Closing Date is postponed, then the foregoing obligations shall again apply with respect to such postponed Closing Date.
(ii) The Company shall provide a reasonable level of supporting documentation for the delivery Estimated Schedule and any additional information reasonably requested by Parent related thereto. To the extent that Parent disagrees in clause (vi) good faith with any items set forth on the Estimated Schedule, Parent may deliver written notice of this Section 2.10(a), its disagreement to the Company at least ten one (101) days Business Day prior to the Closing Date, the Company shall deliver the supporting statement including preliminary estimates of the applicable amounts referred to in clause (vi) below which shall be updated on such third Business Day), the Company shall deliver to Parent a statement (the “Estimated Closing Statement”) that shall set forth a calculation of good faith estimates of (or include) (i) the estimated amount of the Closing Working Capital (the “Estimated Working Capital Amount”), (ii) the estimated amount of Closing Indebtedness (the “Estimated Closing Indebtedness”), (iii) the estimated amount of Closing Cash (the “Estimated Closing Cash”) (including the most recent bank statements (or electronic statement) on which the good faith estimate of the Estimated Closing Cash was based), (iv) the estimated amount of Transaction Expenses (the “Estimated Transaction Expenses”), (v) the estimated amount of the Closing Net Tax Asset Position (including a supporting statement in the form of Schedule 1 reflecting the amounts therein as of the Adjustment Time) (the “Estimated Closing Net Tax Asset Position”) and (vi) the estimated amount of the Closing Transaction Tax Benefit Amount (including a supporting statement in the form of Schedule 4 and including confirmation in writing by a “Big Four” national accounting firm that each of the Transaction Tax Deductions are deductible for applicable income Tax purposes at a “more likely than not” level of comfort (which, for the avoidance of doubt, shall not require the delivery of a formal opinion letter)) (the “Estimated Closing Transaction Tax Benefit Amount”), and its calculation of the Aggregate Estimated Consideration. If, following receipt of the Estimated Closing Statement and the Incentive Share Payment Schedule, Parent disagrees with any portion of the Estimated Closing Statement or the Incentive Share Payment Schedule, Parent and the Company shall cooperate negotiate in good faith to resolve Parent’s disagreements and the Estimated Closing Statement and the Incentive Share Payment Schedule shall be updated for any items resolved by Parent and the Company. If Parent and the Company fail to resolve any of Parent’s such disagreements prior to the date Closing; provided, that, if any disagreement between Company and Parent as to such Estimated Schedule is not resolved by which the Closing is to occur as contemplated by Section 2.2(a), the Estimated Closing Statement and the Incentive Share Payment Schedule and the calculations therein as originally delivered by the Company (as modified by any items agreed to by Parent and the Company) shall be conclusive and binding upon Parent for the purposes of determining the Aggregate Estimated Consideration.
(b) At least three (3) Business Days prior to the Closing Date, the Company shall deliver Estimated Schedule prepared by the Company, as revised to Parent a schedule (the “Incentive Share Payment Schedule”) setting forth the aggregate consideration payable to the Incentive Shares outstanding immediately prior to the Effective Time and the consideration payable in respect of each Incentive Share outstanding immediately prior to the Effective Time, in each case calculated in accordance with the terms of the Articles of Association, the Incentive Share Plan and reflect any applicable award agreements and determined assuming the Company had distributed an amount of cash to all holders of Ordinary Shares, Options, Incentive Shares and Restricted Stock Units equal to the aggregate consideration payable to all such holders as consideration in the Merger.
(c) As soon as reasonably practicable after the Closing Date, and in agreed changes thereto but not any event within sixty (60) days after the Closing Date, (A) Parent shall prepare and deliver to the Shareholder Representative a statement (the “Closing Statement”) that shall set forth a calculation of (i) the Closing Working Capital, (ii) the Closing Indebtedness, (iii) the Closing Cash, (iv) the Transaction Expenses, (v) the Closing Net Tax Asset Position and (vi) the Closing Transaction Tax Benefit Amount. The Estimated Closing Statement and the Closing Statement shall entirely disregard any financing or refinancing arrangements entered into at any time by Parent or its Affiliates in connection with the consummation of the transactions contemplated hereby or any facts or circumstances changes thereto that are unique or particular to Parent or any of its assets or liabilities.
(d) During the thirty (30) days immediately following the Shareholder Representative’s receipt of the Closing Statement (the “Adjustment Review Period”)not agreed, the Shareholder Representative and its Representatives shall be permitted to review the Company’s and its Subsidiaries’ working papers and, after signing a customary confidentiality and hold harmless agreement in form and substance reasonably acceptable to the Company’s independent accountants, the working papers Estimated Schedule for purposes of the Company’s independent accountants, if any, relating to the preparation of the Closing Statement and the calculation of the Closing Working Capital, Closing Indebtedness, Closing Cash, Transaction Expenses, Closing Net Tax Asset Position and Closing Transaction Tax Benefit Amount, and Parent shall, and shall cause the Surviving Company and its Representatives to, reasonably cooperate with respect to the Shareholder Representative’s review (to the extent that it does not unreasonably interfere with the Company’s business). The Shareholder Representative shall notify Parent in writing (the “Notice of Adjustment Disagreement”) on or prior to the last day of the Adjustment Review Period if the Shareholder Representative disagrees with any portion of the Closing Statement. The Notice of Adjustment Disagreement shall set forth in reasonable detail the basis for such disagreement, the amounts involved and the Shareholder Representative’s adjustments to the Closing Statement with reasonably detailed supporting documentation. If no Notice of Adjustment Disagreement is received by Parent on or prior to the expiration date of the Adjustment Review Period, then the Closing Statement and all amounts set forth therein shall be deemed to have been accepted by the Shareholder Representative and shall become final and binding upon the parties hereto. During the fifteen (15) days immediately following the delivery of a Notice of Adjustment Disagreement (the “Adjustment Resolution Period”), the Shareholder Representative and Parent shall seek in good faith to resolve any disagreement that they may have with respect to the matters specified in the Notice of Adjustment Disagreement. Any items agreed to by the Shareholder Representative and Parent in writing, together with any items not disputed or objected to by the Shareholder Representative in the Notice of Adjustment Disagreement, are collectively referred to herein as the “Resolved Mattersthis Article II.” If at the end of the Adjustment Resolution Period the parties have been unable to resolve any differences they may have with respect to the matters specified in the Notice of Adjustment Disagreement, then either the Shareholder Representative or Parent may refer all matters that remain in dispute with respect to the Notice of Adjustment Disagreement (the “Unresolved Matters”) to Duff & Xxxxxx, LLC (the “Independent Accountant”). In the event that Duff & Xxxxxx, LLC refuses or is otherwise unable to act as the Independent Accountant, the Shareholder Representative and Parent shall cooperate in good faith to appoint an independent certified public accounting firm in the United States of national recognition mutually agreeable to the Shareholder Representative and Parent, in which event “Independent Accountant” shall mean such firm. Within thirty (30) days after the submission of such matters to the Independent Accountant, the Independent Accountant, acting as an expert and not as an arbitrator, will make a final determination, binding on the parties hereto, of the appropriate amount of each of the Unresolved Matters. With respect to each Unresolved Matter, such determination, if not in accordance with the position of either the Shareholder Representative or Parent, shall not be in excess of the higher, nor less than the lower, of the amounts advocated by the Shareholder Representative in the Notice of Adjustment Disagreement or Parent in the Closing Statement with respect to such Unresolved Matter. For the avoidance of doubt, the Independent Accountant shall not review any line items or make any determination with respect to any matter other than the Unresolved Matters. During the review by the Independent Accountant, Parent and the Company shall each make available to the Independent Accountant such information, books, records and work papers, as may be reasonably required by the Independent Accountant to fulfill its obligations under this Section 2.10(d); provided, however, that the independent accountants of Parent or the Company shall not be obligated to make any working papers available to the Independent Accountant unless and until the Independent Accountant has signed a customary confidentiality and hold harmless agreement relating to such access to working papers in form and substance reasonably acceptable to such independent accountants. The fees, costs and expenses of the Independent Accountant shall be allocated to and borne by Parent, on the one hand, and the Shareholder Representative (on behalf of the Equityholders), on the other hand, based on the inverse of the percentage that the Independent Accountant’s determination (before such allocation) bears to the total amount of the items in dispute as originally submitted to the Independent Accountant. For example, should the items in dispute total in amount equal to $1,000 and the Independent Accountant awards $600 in favor of the Shareholder Representative’s position, 60% of the costs of its review would be borne by Parent and 40% of the costs would be borne by the Shareholder Representative (on behalf of the Equityholders).
Appears in 1 contract
Samples: Merger Agreement
Merger Consideration Adjustment. (a) At least three (3) Business Days prior to the Closing Date (provided, however, with respect to the delivery in clause (vi) of this Section 2.10(a), at least ten (10) days prior to the Closing Date, the Company shall deliver the supporting statement including preliminary estimates of the applicable amounts referred to in clause (vi) below which shall be updated on such third Business Day), the Company shall deliver to Parent a statement (the “Estimated Closing Statement”) that shall set forth a calculation of good faith estimates of (or include) (i) the estimated amount of the Closing Working Capital (the “Estimated Working Capital Amount”), (ii) the estimated amount of Closing Indebtedness (the “Estimated Closing Indebtedness”), (iii) the estimated amount of Closing Cash (the “Estimated Closing Cash”) (including the most recent bank statements (or electronic statement) on which the good faith estimate of the Estimated Closing Cash was based), (iv) the estimated amount of Transaction Expenses (the “Estimated Transaction Expenses”), (v) the estimated amount of the Closing Net Tax Asset Position (including a supporting statement in the form of Schedule 1 reflecting the amounts therein as of the Adjustment Time) (the “Estimated Closing Net Tax Asset Position”) and (vi) the estimated amount of the Closing Transaction Tax Benefit Amount (including a supporting statement in the form of Schedule 4 and including confirmation in writing by a “Big Four” national accounting firm that each of the Transaction Tax Deductions are deductible for applicable income Tax purposes at a “more likely No fewer than not” level of comfort (which, for the avoidance of doubt, shall not require the delivery of a formal opinion letter)) (the “Estimated Closing Transaction Tax Benefit Amount”), and its calculation of the Aggregate Estimated Consideration. If, following receipt of the Estimated Closing Statement and the Incentive Share Payment Schedule, Parent disagrees with any portion of the Estimated Closing Statement or the Incentive Share Payment Schedule, Parent and the Company shall cooperate in good faith to resolve Parent’s disagreements and the Estimated Closing Statement and the Incentive Share Payment Schedule shall be updated for any items resolved by Parent and the Company. If Parent and the Company fail to resolve any of Parent’s disagreements prior to the date by which the Closing is to occur as contemplated by Section 2.2(a), the Estimated Closing Statement and the Incentive Share Payment Schedule and the calculations therein as originally delivered by the Company (as modified by any items agreed to by Parent and the Company) shall be conclusive and binding upon Parent for the purposes of determining the Aggregate Estimated Consideration.
(b) At least three (3) Business Days prior to the Closing Date, the Company shall prepare and deliver to Parent a schedule statement (in the form of the Form Working Capital Statement) (the “Incentive Share Payment ScheduleEstimated Closing Statement”) setting forth the aggregate consideration payable Company’s good faith estimates of (A) Net Working Capital (the “Estimated Net Working Capital”), (B) Closing Cash (the “Estimated Closing Cash”), (C) Closing Indebtedness (the “Estimated Closing Indebtedness”), (D) Closing Transaction Expenses (the “Estimated Closing Transaction Expenses”), and (E) Estimated Cash Consideration. After delivery to Parent of the Incentive Shares outstanding immediately Estimated Closing Statement 13 and prior to the Effective Time Closing, the Company shall, and the consideration payable in respect Company shall cause each of each Incentive Share outstanding immediately prior to the Effective Timeother Company Entities to, provide Parent and its Representatives with a reasonable opportunity, in each case calculated in accordance a manner that does not unreasonably interfere with the terms businesses and operations of the Articles of AssociationCompany Entities, to review any books and records used in preparing the Incentive Share Plan and any applicable award agreements and determined assuming the Company had distributed an amount of cash to all holders of Ordinary Shares, Options, Incentive Shares and Restricted Stock Units equal to the aggregate consideration payable to all such holders as consideration in the MergerEstimated Closing Statement.
(cb) As soon promptly as reasonably practicable after the Closing Datepracticable, and but in any no event within sixty later than ninety (6090) days after the Closing Date, (A) Parent shall prepare and deliver to the Shareholder Securityholder Representative a statement (the “Closing Statement”) that shall set setting forth a Parent’s good faith calculation of (i) the Closing Net Working Capital, (ii) the Closing Cash, (iii) Closing Indebtedness, (iii) the Closing Cash, (iv) the Closing Transaction Expenses, and (v) the Closing Net Tax Asset Position and (vi) the Closing Transaction Tax Benefit AmountFinal Cash Consideration. The Estimated Closing Statement and the Closing Statement shall entirely disregard any financing or refinancing arrangements entered into at any time by Parent or its Affiliates in connection with the consummation of the transactions contemplated hereby or any facts or circumstances that are unique or particular to Parent or any of its assets or liabilities.
(d) During the thirty (30) days day period immediately following the Shareholder Representative’s receipt delivery of the Closing Statement by Parent to the Securityholder Representative (the “Adjustment Review Objection Period”), Parent shall provide the Shareholder Securityholder Representative and its Representatives shall be permitted to review the Company’s and its Subsidiaries’ working papers andwith a reasonable opportunity, after signing in a customary confidentiality and hold harmless agreement in form and substance reasonably acceptable to the Company’s independent accountants, the working papers of the Company’s independent accountants, if any, relating to the preparation of the Closing Statement and the calculation of the Closing Working Capital, Closing Indebtedness, Closing Cash, Transaction Expenses, Closing Net Tax Asset Position and Closing Transaction Tax Benefit Amount, and Parent shall, and shall cause the Surviving Company and its Representatives to, reasonably cooperate with respect to the Shareholder Representative’s review (to the extent manner that it does not unreasonably interfere with the Company’s businessbusinesses and operations of Parent and its Affiliates (including the Company Entities). The Shareholder Representative shall notify Parent , to review any books and records used in writing preparing the Closing Statement.
(the “Notice of Adjustment Disagreement”c) If, prior to 11:59 p.m. (Central Time) on or prior to the last day of the Adjustment Review Objection Period if (the Shareholder “Objection Deadline”), the Securityholder Representative disagrees with has not given Parent written notice of any portion of good faith objection to the Closing Statement. The Notice of Adjustment Disagreement shall set forth Statement or any component thereof specifying in reasonable detail the nature and basis for of such disagreementobjection, as well as the amounts involved specific matters in dispute (the “Disputed Matters”) and the Shareholder Representative’s amount of any proposed adjustments to the Closing Statement with reasonably detailed supporting documentation. If no Notice of Adjustment Disagreement is received by Parent on or prior to the expiration date of the Adjustment Review Period(an “Objection Notice”), then the Closing Statement and all amounts set forth therein shall components thereof are to be deemed to have been accepted by the Shareholder Representative and shall become final and are to be binding upon and conclusive on the parties hereto. During Parties for all purposes under this Agreement and not subject to further dispute or challenge.
(d) If, prior to the fifteen (15) days immediately following the delivery of a Notice of Adjustment Disagreement (the “Adjustment Resolution Period”)Objection Deadline, the Shareholder Securityholder Representative has given Parent an Objection Notice, then Parent and Parent the Securityholder Representative shall seek in good faith attempt to resolve any disagreement that they may have the Disputed Matters (and, for avoidance of doubt, all other matters with respect to, and all other components of, the Closing Statement are to be binding and conclusive on the matters specified in Parties for all purposes under this Agreement and not subject to further dispute or challenge). If Parent and the Notice of Adjustment Disagreement. Any items agreed Securityholder Representative fail to by the Shareholder Representative and Parent in writing, together with any items not disputed or objected to by the Shareholder Representative in the Notice of Adjustment Disagreement, are collectively referred to herein as the “Resolved Matters.” If at the end resolve all of the Adjustment Resolution Period the parties have been unable to resolve any differences they may have with respect to the matters specified in the Notice of Adjustment Disagreement, then either the Shareholder Representative or Parent may refer all matters that remain in dispute with respect to the Notice of Adjustment Disagreement (the “Unresolved Matters”) to Duff & Xxxxxx, LLC (the “Independent Accountant”). In the event that Duff & Xxxxxx, LLC refuses or is otherwise unable to act as the Independent Accountant, the Shareholder Representative and Parent shall cooperate in good faith to appoint an independent certified public accounting firm in the United States of national recognition mutually agreeable to the Shareholder Representative and Parent, in which event “Independent Accountant” shall mean such firm. Within Disputed Matters within thirty (30) days after the submission following Parent’s receipt of such Objection Notice, then Parent and the Securityholder Representative shall submit the Disputed Matters remaining in dispute (and only such Disputed Matters, as all other matters to the Independent Accountantwith respect to, and all other components of, the Independent Accountant, acting as an expert Closing Statement (including those Disputed Matters resolved by Parent and not as an arbitrator, will make a final determination, binding on the parties hereto, of the appropriate amount of each of the Unresolved Matters. With respect to each Unresolved Matter, such determination, if not Securityholder Representative in accordance with the position of either immediately preceding sentence) are to be binding and conclusive on the Shareholder Representative Parties for all purposes under this Agreement and not subject to further dispute or Parent, shall not be in excess of the higher, nor less than the lower, of the amounts advocated by the Shareholder Representative in the Notice of Adjustment Disagreement or Parent in the Closing Statement with respect challenge) to such Unresolved Matter. For the avoidance of doubt, the Independent Accountant shall not review any line items or make any determination Accounting Firm for resolution in accordance with respect the guidelines and procedures set forth in this Agreement. If Disputed Matters are submitted to any matter other than the Unresolved Matters. During the review by the Independent AccountantAccounting Firm for resolution in accordance with the immediately preceding sentence, (i) Parent and the Company Securityholder Representative shall each make available furnish, or cause to be furnished, to the Independent Accountant Accounting Firm such information, books, records work papers and work papers, other documents and information relating to such Disputed Matters as may be reasonably required by the Independent Accountant Accounting Firm requests and as are available to fulfill its obligations under this Section 2.10(d); provided, however, that such Party or such Party’s Representatives and Parent and the independent accountants of Parent or Securityholder Representative are to be afforded the Company shall not be obligated opportunity to make any working papers available present to the Independent Accountant unless and until the Independent Accountant has signed a customary confidentiality and hold harmless agreement Accounting Firm any material relating to such access Disputed 14 Matters, (ii) Parent and the Securityholder Representative shall instruct the Independent Accounting Firm to working papers deliver the Independent Accounting Firm’s determination in form a written notice to Parent and substance reasonably acceptable the Securityholder Representative within thirty (30) days of the submission to the Independent Accounting Firm of such independent accountants. The feesDisputed Matters, costs and such determination is to be final, binding and conclusive on the Parties for all purposes under this Agreement and not subject to further dispute or challenge and is to be used in the calculation of the Final Net Working Capital and the determination of the Final Closing Cash, Final Closing Indebtedness and Final Closing Transaction Expenses, as applicable, and (iii) the fees and expenses of the Independent Accountant shall Accounting Firm are to be allocated to and borne payable by Parent, on the one hand, and the Shareholder Representative (on behalf of the Equityholders)Company Securityholders, on the other hand, based on in proportion to the inverse amounts by which the proposals of Parent and the percentage Securityholder Representative, respectively, differed from the Independent Accounting Firm’s final determination of such Disputed Matters, and Parent and the Securityholder Representative shall instruct the Independent Accounting Firm to determine such proportions in the Independent Accounting Firm’s final determination; provided, however, that the Independent Accountant’s determination (before such allocation) bears to the total amount of the items in dispute as originally submitted fees and expenses owed to the Independent Accountant. For exampleAccounting Firm by the Company Securityholders shall be paid through the release to Parent of cash from the Representative Expense Fund by wire transfer of immediately available funds to the account designated by Parent; provided further, should if the items in dispute total in amount equal to $1,000 and the Independent Accountant awards $600 in favor then current balance of the Shareholder Representative’s positionRepresentative Expense Fund is insufficient to cover the entire amount payable to Parent pursuant to this Section 2.14(v), 60% then the Principal Stockholder shall promptly pay the unpaid portion of such amount by wire transfer of immediately available funds to the account designated by Parent.
(e) If the Final Cash Consideration exceeds the Estimated Cash Consideration, then, within two (2) Business Days of the costs of its review would be borne by Parent and 40% final determination of the costs would be borne by Final Cash Consideration in accordance with this Section 2.14, Parent shall pay to the Shareholder Representative (Exchange Agent, on behalf of the EquityholdersCompany Securityholders, an amount in cash equal to such excess by wire transfer of immediately available funds and the Exchange Agent shall pay such amount to the Company Securityholders, in accordance with each Company Securityholder’s Pro Rata Share. If the Estimated Cash Consideration exceeds the Final Cash Consideration, then, within two (2) Business Days of the final determination of the Final Cash Consideration in accordance with this Section 2.14, the Securityholder Representative shall release from the Representative Expense Fund by wire transfer of immediately available funds to the account designated by Parent an amount in cash equal to the amount by which Estimated Cash Consideration exceeds the Final Cash Consideration; provided, however, if the then current balance of the Representative Expense Fund is insufficient to cover the entire amount payable to Parent pursuant to this Section 2.14(v), then the Principal Stockholder shall promptly pay the unpaid portion of such amount by wire transfer of immediately available funds to the account designated by Parent.
(f) The Estimated Closing Statement and the Closing Statement, as well as all estimates, calculations and determinations therein, are to be prepared and calculated on a consolidated basis for the Company Entities using the accounting principles, practices, classifications, procedures, policies and methods set forth on Annex A (the “Accounting Principles”). An example calculation of Net Working Capital using the Accounting Principles is also set forth on Annex A (the “Form Working Capital Statement”).
(g) The Parties shall treat each payment made under this Section 2.14 as an adjustment to the Aggregate Merger Consideration for Tax purposes, unless (i) a final determination (which includes the execution of a Form 870‑AD or successor form) with respect to any such payment causes such payment not to be treated as an adjustment to the Aggregate Merger Consideration for Tax purposes or (ii) as otherwise required by applicable Legal Requirements.
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Merger Consideration Adjustment. (a) At least three (3) Business Days prior to If at the Closing Date (provided, however, with respect to the delivery in clause (vi) ratio of this Section 2.10(a), at least ten (10) days prior to the Closing Date, the Company shall deliver the supporting statement including preliminary estimates of the applicable amounts referred to in clause (vi) below which shall be updated on such third Business Day), the Company shall deliver to Parent a statement (the “Estimated Closing Statement”) that shall set forth a calculation of good faith estimates of (or include) (i) the estimated amount aggregate Cash Consideration payable to the holders of Outstanding Company Shares including, for purposes of this Section 5.12, in the aggregate Cash Consideration the cash payable in lieu of fractional shares of Parent Common Stock and the aggregate value of the Closing Working Capital Merger Consideration that would have been deliverable or payable to holders of Dissenting Shares (the “Estimated Working Capital Amount”), "Revised Cash Consideration") to (ii) the estimated amount aggregate value of the Merger Consideration, revised by using Revised Cash Consideration in lieu of Cash Consideration, less the value of the Escrow Shares (valuing the aggregate Stock Consideration at 75% (unless Company Counsel and Parent Counsel mutually agree in writing to a greater percentage) of the Parent Closing Indebtedness Price (the “Estimated Closing Indebtedness”"Revised Stock Consideration") (such adjusted Merger Consideration referred to in this Section 5.12 as the "Revised Merger Consideration"), (iii) payable to the estimated amount of Closing Cash Company Shareholders is greater than 0.6:1 (the “Estimated Closing Cash”) (including the most recent bank statements (or electronic statement) on which the good faith estimate of the Estimated Closing Cash was based"Consideration Ratio"), (iv) then the estimated amount of Transaction Expenses (the “Estimated Transaction Expenses”), (v) the estimated amount of Company may elect to delay the Closing Net Tax Asset Position (including for a supporting statement in period of not more than 14 days until such time as the form of Schedule 1 reflecting the amounts therein as of the Adjustment Time) (the “Estimated Closing Net Tax Asset Position”) and (vi) the estimated amount of the Closing Transaction Tax Benefit Amount (including a supporting statement in the form of Schedule 4 and including confirmation in writing by a “Big Four” national accounting firm that each of the Transaction Tax Deductions are deductible for applicable income Tax purposes at a “more likely than not” level of comfort (which, for the avoidance of doubt, shall not require the delivery of a formal opinion letter)) (the “Estimated Closing Transaction Tax Benefit Amount”), and its calculation of the Aggregate Estimated Consideration. If, following receipt of the Estimated Closing Statement and the Incentive Share Payment Schedule, Parent disagrees with any Revised Cash Consideration portion of the Estimated Revised Merger Consideration shall not be greater than the Consideration Ratio. If at the end of such 14 day period the Revised Merger Consideration does not satisfy the Consideration Ratio, the parties agree to reduce the aggregate Cash Consideration by up to $2,000,000 (the "Cash Reduction Amount") and to increase the Base Stock Number by up to that number of shares equal to the quotient derived by dividing the Cash Reduction Amount by the Parent Closing Statement or Price as is necessary so that the Incentive Share Payment ScheduleRevised Cash Consideration portion of the Revised Merger Consideration is not greater than the Consideration Ratio as determined under the first sentence of this Section 5.12. In the event the foregoing adjustments to the Revised Cash Consideration and the Revised Stock Consideration are not sufficient to satisfy the requirements of this Section 5.12, each of Parent and the Company shall cooperate in good faith have the right to resolve Parent’s disagreements terminate this Agreement and abandon the Estimated Closing Statement and the Incentive Share Payment Schedule Merger pursuant to Section 8.1(d), provided that neither party shall be updated for have any items resolved by Parent and the Company. If Parent and the Company fail to resolve any of Parent’s disagreements prior liability or obligation to the date by which the Closing is other party pursuant to occur as contemplated by Section 2.2(a), the Estimated Closing Statement and the Incentive Share Payment Schedule and the calculations therein as originally delivered by the Company (as modified by any items agreed to by Parent and the Company) shall be conclusive and binding upon Parent for the purposes of determining the Aggregate Estimated ConsiderationArticle IX.
(b) At least three (3) Business Days prior to the Closing Date, the Company shall deliver to Parent a schedule (the “Incentive Share Payment Schedule”) setting forth the aggregate consideration payable to the Incentive Shares outstanding immediately prior to the Effective Time and the consideration payable in respect of each Incentive Share outstanding immediately prior to the Effective Time, in each case calculated in accordance with the terms of the Articles of Association, the Incentive Share Plan and any applicable award agreements and determined assuming the Company had distributed an amount of cash to all holders of Ordinary Shares, Options, Incentive Shares and Restricted Stock Units equal to the aggregate consideration payable to all such holders as consideration in the Merger.
(c) As soon as reasonably practicable after the Closing Date, and in any event within sixty (60) days after the Closing Date, (A) Parent shall prepare and deliver to the Shareholder Representative a statement (the “Closing Statement”) that shall set forth a calculation of (i) the Closing Working Capital, (ii) the Closing Indebtedness, (iii) the Closing Cash, (iv) the Transaction Expenses, (v) the Closing Net Tax Asset Position and (vi) the Closing Transaction Tax Benefit Amount. The Estimated Closing Statement and the Closing Statement shall entirely disregard any financing or refinancing arrangements entered into at any time by Parent or its Affiliates in connection with the consummation of the transactions contemplated hereby or any facts or circumstances that are unique or particular to Parent or any of its assets or liabilities.
(d) During the thirty (30) days immediately following the Shareholder Representative’s receipt of the Closing Statement (the “Adjustment Review Period”), the Shareholder Representative and its Representatives shall be permitted to review the Company’s and its Subsidiaries’ working papers and, after signing a customary confidentiality and hold harmless agreement in form and substance reasonably acceptable to the Company’s independent accountants, the working papers of the Company’s independent accountants, if any, relating to the preparation of the Closing Statement and the calculation of the Closing Working Capital, Closing Indebtedness, Closing Cash, Transaction Expenses, Closing Net Tax Asset Position and Closing Transaction Tax Benefit Amount, and Parent shall, and shall cause the Surviving Company and its Representatives to, reasonably cooperate with respect to the Shareholder Representative’s review (to the extent that it does not unreasonably interfere with the Company’s business). The Shareholder Representative shall notify Parent in writing (the “Notice of Adjustment Disagreement”) on or prior to the last day of the Adjustment Review Period if the Shareholder Representative disagrees with any portion of the Closing Statement. The Notice of Adjustment Disagreement shall set forth in reasonable detail the basis for such disagreement, the amounts involved and the Shareholder Representative’s adjustments to the Closing Statement with reasonably detailed supporting documentation. If no Notice of Adjustment Disagreement is received by Parent on or prior to the expiration date of the Adjustment Review Period, then the Closing Statement and all amounts set forth therein shall be deemed to have been accepted by the Shareholder Representative and shall become final and binding upon the parties hereto. During the fifteen (15) days immediately following the delivery of a Notice of Adjustment Disagreement (the “Adjustment Resolution Period”), the Shareholder Representative and Parent shall seek in good faith to resolve any disagreement that they may have with respect to the matters specified in the Notice of Adjustment Disagreement. Any items agreed to by the Shareholder Representative and Parent in writing, together with any items not disputed or objected to by the Shareholder Representative in the Notice of Adjustment Disagreement, are collectively referred to herein as the “Resolved Matters.” If at the end of the Adjustment Resolution Period the parties have been unable to resolve any differences they may have with respect to the matters specified in the Notice of Adjustment Disagreement, then either the Shareholder Representative or Parent may refer all matters that remain in dispute with respect to the Notice of Adjustment Disagreement (the “Unresolved Matters”) to Duff & Xxxxxx, LLC (the “Independent Accountant”). In the event that Duff & Xxxxxx, LLC refuses or is otherwise unable to act as the Independent Accountant, the Shareholder Representative and Parent shall cooperate in good faith to appoint an independent certified public accounting firm in the United States of national recognition mutually agreeable to the Shareholder Representative and Parent, in which event “Independent Accountant” shall mean such firm. Within thirty (30) days after the submission of such matters to the Independent Accountant, the Independent Accountant, acting as an expert and not as an arbitrator, will make a final determination, binding on the parties hereto, of the appropriate amount of each of the Unresolved Matters. With respect to each Unresolved Matter, such determination, if not in accordance with the position of either the Shareholder Representative or Parent, shall not be in excess of the higher, nor less than the lower, of the amounts advocated by the Shareholder Representative in the Notice of Adjustment Disagreement or Parent in the Closing Statement with respect to such Unresolved Matter. For the avoidance of doubt, the Independent Accountant shall not review any line items or make any determination with respect to any matter other than the Unresolved Matters. During the review by the Independent Accountant, Parent and the Company shall each make available to the Independent Accountant such information, books, records and work papers, as may be reasonably required by the Independent Accountant to fulfill its obligations under this Section 2.10(d); provided, however, that the independent accountants of Parent or the Company shall not be obligated to make any working papers available to the Independent Accountant unless and until the Independent Accountant has signed a customary confidentiality and hold harmless agreement relating to such access to working papers in form and substance reasonably acceptable to such independent accountants. The fees, costs and expenses of the Independent Accountant shall be allocated to and borne by Parent, on the one hand, and the Shareholder Representative (on behalf of the Equityholders), on the other hand, based on the inverse of the percentage that the Independent Accountant’s determination (before such allocation) bears to the total amount of the items in dispute as originally submitted to the Independent Accountant. For example, should the items in dispute total in amount equal to $1,000 and the Independent Accountant awards $600 in favor of the Shareholder Representative’s position, 60% of the costs of its review would be borne by Parent and 40% of the costs would be borne by the Shareholder Representative (on behalf of the Equityholders).
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