Post-Closing Statement. (a) After the Closing Date, Sellers and Purchasers shall cooperate with each other and provide each other with such access to their respective books, records, accountants, audit work papers and relevant employees as they may reasonably request in connection with the matters addressed in this Section 2.5; provided, however, that nothing contained in this Section 2.5 shall require Sellers, Purchasers or any of their respective Affiliates to disclose any attorney-client privileged information to the extent that disclosure thereof might result in the loss of attorney-client privilege. As promptly as practicable but no later than sixty (60) days after the Closing Date, Purchasers shall prepare and deliver to Sellers a statement (the “Initial Post-Closing Adjustment Statement”) of (i) the Closing Working Capital, (ii) the Closing Cash Amount, (iii) the Closing Date Indebtedness, (iv) the Closing Date Transaction Fees; and (v) the Adjustment Amount, setting forth Purchasers’ calculation of the Adjustment Amount as of the Closing together with reasonable supporting calculations and detail. The Initial Post-Closing Adjustment Statement shall be determined in accordance with the Accounting Methodology. (b) If Sellers disagree in whole or in part with the Initial Post-Closing Adjustment Statement, Seller shall notify Purchasers in writing of such disagreement (the “Notice of Disagreement”) within thirty (30) days following Sellers’ receipt of the Initial Post-Closing Adjustment Statement (the “Review Period”), indicating the specific line items that are in dispute (the “Disputed Items”), describing the basis for such objection and providing Seller’s estimate of such Disputed Items; provided that Sellers and Purchasers shall be deemed to have agreed upon all items and amounts that are not Disputed Items, unless the resolution of a Disputed Item affects an undisputed item, in which case such undisputed item shall remain open and be considered a Disputed Item. If no Notice of Disagreement is received by Purchasers prior to the expiration of the Review Period, then the Initial Post-Closing Adjustment Statement shall be deemed to have been accepted by Sellers and shall become final and binding upon the Parties in accordance with Section 2.5(e). (c) During the thirty (30) days (or such longer period as the Parties may mutually agree) immediately following the delivery of a Notice of Disagreement (the “Resolution Period”), Sellers and Purchasers shall seek in good faith to resolve any differences that they may have with respect to Disputed Items. The Parties shall cooperate during such Resolution Period and Sellers and their Representatives shall have access to the books and records, working papers, schedules and calculations of the Purchasers and the Transferred Entities used in the preparation of the Initial Post-Closing Adjustment Statement, the Notice of Disagreement and the determination of the Disputed Items, and to the personnel involved in the preparation and calculation thereof, during normal business hours, upon reasonable notice.
Appears in 3 contracts
Samples: Purchase and Sale Agreement (Baudax Bio, Inc.), Purchase and Sale Agreement (Alkermes Plc.), Purchase and Sale Agreement (Recro Pharma, Inc.)
Post-Closing Statement. (a) After the Closing Date, Sellers and Purchasers shall cooperate with each other and provide each other with such access to their respective books, records, accountants, audit work papers and relevant employees as they may reasonably request in connection with the matters addressed in this Section 2.5; provided, however, that nothing contained in this Section 2.5 shall require Sellers, Purchasers or any of their respective Affiliates to disclose any attorney-client privileged information to the extent that disclosure thereof might result in the loss of attorney-client privilege. As promptly as practicable but no later than sixty (60) Within 60 days after the Closing Date, Purchasers Purchaser shall prepare in good faith and deliver to Sellers a statement (the “Initial Post-Closing Adjustment Statement”) Seller statements of (i) the Closing Working Capital, (ii) Indebtedness of the Closing Cash AmountCompanies, (iii) the Closing Date Indebtedness, Purchaser Adjusted Consideration and (iv) the Closing Date Transaction Fees; and (v) the Adjustment AmountSeller Adjusted Consideration, setting forth Purchasers’ calculation of the Adjustment Amount in each case as of the Closing together with reasonable supporting calculations and detail(collectively, the “Initial Closing Statement”). The Initial Post-Closing Adjustment Statement shall be determined prepared in accordance with the Accounting MethodologyPrinciples and in accordance with GAAP, in each case applied consistently with their application in connection with the preparation of the Business Financial Statements.
(b) If Sellers disagree in whole or in part with Following the Initial Post-Closing Adjustment Statementthrough the date that the Final Closing Statement becomes final and binding, Seller and its Affiliates and representatives shall notify Purchasers in writing of such disagreement (be permitted to access and review the “Notice of Disagreement”) within thirty (30) days following Sellers’ receipt books, records and work papers of the Initial Post-Closing Adjustment Statement (the “Review Period”), indicating the specific line items that are in dispute (the “Disputed Items”), describing the basis for such objection and providing Seller’s estimate of such Disputed Items; provided that Sellers and Purchasers shall be deemed to have agreed upon all items and amounts that are not Disputed Items, unless the resolution of a Disputed Item affects an undisputed item, in which case such undisputed item shall remain open and be considered a Disputed Item. If no Notice of Disagreement is received by Purchasers prior Companies relating to the expiration of the Review PeriodBusiness, then the Initial Post-Closing Adjustment Statement shall be deemed to have been accepted by Sellers and Purchaser shall, and shall become final cause its Affiliates (including the Companies) and binding upon its and their respective employees, accountants and other representatives to, cooperate with and assist Seller and its Affiliates and representatives in connection with such review, including by providing access to such books, records and work papers and making available personnel to the Parties extent reasonably requested; provided, that the accountants of Purchaser and its Affiliates shall not be obliged to make any books, records or work papers available to Seller and its Affiliates except in accordance with Section 2.5(e)such accountant’s normal disclosure procedures and then only after Seller or its Affiliate, as applicable, has signed a customary agreement relating to such access to books, records and work papers.
(c) During the thirty (30) days (or such longer period as the Parties may mutually agree) immediately Purchaser agrees that, following the delivery of a Notice of Disagreement (Closing through the “Resolution Period”)date that the Final Closing Statement becomes final and binding, Sellers and Purchasers shall seek in good faith it will not take or permit to resolve be taken any differences that they may have actions with respect to Disputed Items. The Parties shall cooperate during such Resolution Period and Sellers and their Representatives shall have access to the books and any accounting books, records, working papers, schedules and calculations of policies or procedures on which the Purchasers and the Transferred Entities used in the preparation of Business Financial Statements or the Initial Post-Closing Adjustment StatementStatement is based, or on which the Notice of Disagreement and Final Closing Statement is to be based, that would impede or delay the determination of the Disputed Items, and to amount of Working Capital or Indebtedness of the personnel involved Companies as of the Closing or the preparation of any Notice of Disagreement or the Final Closing Statement in the preparation manner and calculation thereof, during normal business hours, upon reasonable noticeutilizing the methods provided by this Agreement.
Appears in 2 contracts
Samples: Equity Interest Purchase Agreement, Equity Interest Purchase Agreement (Gulf Power Co)
Post-Closing Statement. (a) After the Closing Date, Sellers Sellers, Seller Parent and Purchasers Purchaser shall cooperate with each other and provide each other with such access to their respective books, records, accountants, audit work papers and relevant employees as they may reasonably request in connection with the matters addressed in this Section 2.5; , provided, however, that nothing contained in this Section 2.5 shall require Sellers, Purchasers Purchaser or any of their respective Affiliates to disclose any attorney-client privileged information to the extent that disclosure thereof might result in the loss of attorney-client privilege. As promptly as practicable but no later than sixty seventy-five (6075) days after the month end of the Closing Date, Purchasers Purchaser shall prepare and deliver to Sellers Seller Parent a statement of the Adjustment Amount (the “Initial Post-Closing Adjustment Statement”) of (i) the Closing Working Capital, (ii) the Closing Cash Amount, (iii) the Closing Date Indebtedness, (iv) the Closing Date Transaction Fees; and (v) the Adjustment Amount), setting forth Purchasers’ Purchaser’s calculation of the Adjustment Amount as of the Closing together with reasonable supporting calculations and detail. The If the Initial Post-Closing Adjustment Statement shall is not delivered to Seller Parent within seventy-five (75) days after the Closing Date, then in addition to any other rights Seller Parent may have under this Agreement, Seller Parent will have the right to elect that the Company’s estimates set forth in the Closing Adjustment will constitute the final Adjustment Amount and will be determined in accordance with final, conclusive and binding upon, and non-appealable by, the Accounting MethodologyParties.
(b) If Sellers disagree in whole or in part with the Initial Post-Closing Adjustment Statement, Seller Parent shall notify Purchasers Purchaser in writing of such disagreement (the “Notice of Disagreement”) within thirty (30) days following Sellers’ Seller Parent’s receipt of the Initial Post-Closing Adjustment Statement (the “Review Period”)) if Seller Parent objects to any matter set forth in the Initial Post-Closing Adjustment Statement, indicating the specific line items that are in dispute (the “Disputed Items”), describing which notice shall describe the basis for such objection and providing Seller’s estimate (the “Notice of such Disputed ItemsDisagreement”); provided that Sellers Seller Parent and Purchasers Purchaser shall be deemed to have agreed upon all items and amounts that are not Disputed Items, unless so disputed by Seller Parent in the resolution Notice of a Disputed Item affects an undisputed item, in which case such undisputed item shall remain open and be considered a Disputed ItemDisagreement. If no Notice of Disagreement is received by Purchasers Purchaser prior to the expiration of the Review Period, then the Initial Post-Closing Adjustment Statement shall be deemed to have been accepted by Sellers Seller Parent and shall become final and binding upon the Parties in accordance with Section 2.5(e).
(c) During the thirty (30) days (or such longer period as the Parties may mutually agree) immediately following the delivery of a Notice of Disagreement (the “Resolution Period”), Sellers Seller Parent and Purchasers Purchaser shall seek in good faith to resolve any differences that they may have with respect to Disputed Items. The Parties shall cooperate during such Resolution Period and Sellers and their Representatives shall have access to the books and records, working papers, schedules and calculations of the Purchasers and the Transferred Entities used matters properly specified in the preparation of the Initial Post-Closing Adjustment Statement, the Notice of Disagreement and the determination Disagreement. All such discussions related thereto shall be governed by Rule 408 of the Disputed ItemsFederal Rules of Evidence and any applicable similar state rule and evidence of such discussions shall not be admissible or used by any Party in any future proceedings between the Parties, and to including before the personnel involved in the preparation and calculation thereof, during normal business hours, upon reasonable noticeIndependent Accounting Firm.
Appears in 2 contracts
Samples: Purchase and Sale Agreement (Ambipar Emergency Response), Purchase and Sale Agreement (Ambipar Emergency Response)
Post-Closing Statement. (a) After the Closing Date, Sellers and Purchasers shall cooperate with each other and provide each other with such access to their respective books, records, accountants, audit work papers and relevant employees as they may reasonably request in connection with the matters addressed in this Section 2.5; provided, however, that nothing contained in this Section 2.5 shall require Sellers, Purchasers or any of their respective Affiliates to disclose any attorney-client privileged information to the extent that disclosure thereof might result in the loss of attorney-client privilege. As promptly as practicable but no later than sixty (60) Within 60 days after the Closing Date, Purchasers Purchaser shall prepare in good faith and deliver to Sellers a statement (the “Initial Post-Closing Adjustment Statement”) Seller statements of (i) the Closing Working Capital, (ii) Indebtedness of the Closing Cash AmountCompany, and (iii) the Closing Date Indebtedness, (iv) the Closing Date Transaction Fees; and (v) the Adjustment CapEx Shortfall Amount, setting forth Purchasers’ calculation of the Adjustment Amount in each case as of the Closing together with reasonable supporting calculations and detail(collectively, the “Initial Closing Statement”). The Initial Post-Closing Adjustment Statement shall be determined prepared in accordance with the Accounting MethodologyPrinciples and in accordance with GAAP, in each case applied consistently with their application in connection with the preparation of the Company Financial Statements.
(b) If Sellers disagree in whole or in part with Following the Initial Post-Closing Adjustment Statementthrough the date that the Final Closing Statement becomes final and binding, Seller and its Affiliates and representatives shall notify Purchasers in writing of such disagreement (be permitted to access and review the “Notice of Disagreement”) within thirty (30) days following Sellers’ receipt books, records and work papers of the Initial Post-Closing Adjustment Statement Company, and Purchaser shall, and shall cause its Affiliates (including the “Review Period”)Company) and its and their respective employees, indicating the specific line items that are accountants and other representatives to, cooperate with and assist Seller and its Affiliates and representatives in dispute (the “Disputed Items”)connection with such review, describing the basis for including by providing access to such objection books, records and providing Seller’s estimate of such Disputed Items; provided that Sellers work papers and Purchasers shall be deemed to have agreed upon all items and amounts that are not Disputed Items, unless the resolution of a Disputed Item affects an undisputed item, in which case such undisputed item shall remain open and be considered a Disputed Item. If no Notice of Disagreement is received by Purchasers prior making available personnel to the expiration extent reasonably requested; provided, that the accountants of the Review PeriodPurchaser and its Affiliates shall not be obliged to make any books, then the Initial Post-Closing Adjustment Statement shall be deemed records or work papers available to have been accepted by Sellers Seller and shall become final and binding upon the Parties its Affiliates except in accordance with Section 2.5(e)such accountant’s normal disclosure procedures and then only after Seller or its Affiliate, as applicable, has signed a customary agreement relating to such access to books, records and work papers.
(c) During the thirty (30) days (or such longer period as the Parties may mutually agree) immediately Purchaser agrees that, following the delivery of a Notice of Disagreement (Closing through the “Resolution Period”)date that the Final Closing Statement becomes final and binding, Sellers and Purchasers shall seek in good faith it will not take or permit to resolve be taken any differences that they may have actions with respect to Disputed Items. The Parties shall cooperate during such Resolution Period and Sellers and their Representatives shall have access to the books and any accounting books, records, working papers, schedules and calculations of policies or procedures on which the Purchasers and the Transferred Entities used in the preparation of Company Financial Statements or the Initial Post-Closing Adjustment StatementStatement is based, or on which the Notice of Disagreement and Final Closing Statement is to be based, that would impede or delay the determination of the Disputed Itemsamount of Working Capital, and to Indebtedness of the personnel involved Company as of the Closing or the CapEx Shortfall Amount or the preparation of any Notice of Disagreement or the Final Closing Statement in the preparation manner and calculation thereof, during normal business hours, upon reasonable noticeutilizing the methods provided by this Agreement.
Appears in 2 contracts
Samples: Stock Purchase Agreement (Gulf Power Co), Stock Purchase Agreement (Nextera Energy Inc)
Post-Closing Statement. (a) After the Closing Date, Sellers and Purchasers shall cooperate with each other and provide each other with such access to their respective books, records, accountants, audit work papers and relevant employees as they may reasonably request in connection with the matters addressed in this Section 2.5; provided, however, that nothing contained in this Section 2.5 shall require Sellers, Purchasers or any of their respective Affiliates to disclose any attorney-client privileged information to the extent that disclosure thereof might result in the loss of attorney-client privilege. As promptly as practicable but no later than sixty (60) Within 60 days after the Closing Date, Purchasers Purchaser shall prepare in good faith and deliver to Sellers a statement (the “Initial Post-Closing Adjustment Statement”) Seller statements of (i) the Closing Working Capital, Capital and (ii) the Closing Cash Amount, (iii) the Closing Date Indebtedness, (iv) the Closing Date Transaction Fees; and (v) the Adjustment Amount, setting forth Purchasers’ calculation Indebtedness of the Adjustment Amount Company, in each case as of the Closing together with reasonable supporting calculations and detail(collectively, the “Initial Closing Statement”). The Initial Post-Closing Adjustment Statement shall be determined prepared in accordance with the Accounting MethodologyPrinciples and in accordance with GAAP, in each case applied consistently with their application in connection with the preparation of the Business Financial Statements.
(b) If Sellers disagree in whole or in part with Following the Initial Post-Closing Adjustment Statementthrough the date that the Final Closing Statement becomes final and binding, Seller and its Affiliates and representatives shall notify Purchasers in writing of such disagreement (be permitted to access and review the “Notice of Disagreement”) within thirty (30) days following Sellers’ receipt books, records and work papers of the Initial Post-Closing Adjustment Statement Company or relating to the Business, and Purchaser shall, and shall cause its Affiliates (including the “Review Period”)Company) and its and their respective employees, indicating accountants and other representatives to, cooperate with and assist Seller and its Affiliates and representatives in connection with such review, including by providing access to such books, records and work papers and making available personnel to the specific line items that are in dispute (the “Disputed Items”), describing the basis for such objection and providing Seller’s estimate of such Disputed Itemsextent reasonably requested; provided that Sellers the accountants of Purchaser and Purchasers its Affiliates shall not be deemed obliged to have agreed upon all items make any books, records or work papers available to Seller and amounts that are not Disputed Items, unless the resolution of a Disputed Item affects an undisputed item, in which case such undisputed item shall remain open and be considered a Disputed Item. If no Notice of Disagreement is received by Purchasers prior to the expiration of the Review Period, then the Initial Post-Closing Adjustment Statement shall be deemed to have been accepted by Sellers and shall become final and binding upon the Parties its Affiliates except in accordance with Section 2.5(e)such accountant’s normal disclosure procedures and then only after Seller or its Affiliate, as applicable, has signed a customary agreement relating to such access to books, records and work papers.
(c) During the thirty (30) days (or such longer period as the Parties may mutually agree) immediately Purchaser agrees that, following the delivery of a Notice of Disagreement (Closing through the “Resolution Period”)date that the Final Closing Statement becomes final and binding, Sellers and Purchasers shall seek in good faith it will not take or permit to resolve be taken any differences that they may have actions with respect to Disputed Items. The Parties shall cooperate during such Resolution Period and Sellers and their Representatives shall have access to the books and any accounting books, records, working papers, schedules and calculations of policies or procedures on which the Purchasers and the Transferred Entities used in the preparation of Business Financial Statements or the Initial Post-Closing Adjustment StatementStatement is based, or on which the Notice of Disagreement and Final Closing Statement is to be based, that would impede or delay the determination of the Disputed Itemsamount of Working Capital or Indebtedness of the Company, and to in each case, as of the personnel involved Closing or the preparation of any Notice of Disagreement or the Final Closing Statement in the preparation manner and calculation thereof, during normal business hours, upon reasonable noticeutilizing the methods provided by this Agreement.
Appears in 2 contracts
Samples: Stock Purchase Agreement (Nextera Energy Inc), Stock Purchase Agreement (Gulf Power Co)
Post-Closing Statement. (a) After As soon as practicable but in any event within 60 days after the Closing Date, Sellers Parent will cause Buyer to prepare (or cause to be prepared) and Purchasers shall cooperate deliver to Seller a statement (the "Post-Closing Statement") showing (i) Buyer's calculation of the Closing Net Assets of the Business as defined on and calculated in accordance with Schedule 2.4(a) as of the close of business on the Business Day prior to the Closing Date, including, in each other case, the calculation thereof in reasonable detail and provide each other with (ii) the aggregate costs of all license, transfer and assumption fees paid or payable (to the extent Buyer determines, in its discretion, that it requires such access license, transfer or assumption) by Buyer in order to their respective bookslicense, recordson substantially similar terms and conditions as those binding Seller, accountants, audit work papers and relevant employees all Software (as they may reasonably request defined in connection with the matters addressed Technology Assignment Agreement attached hereto as Exhibit C-5) currently used in the Business that is not assigned or transferred under this Section 2.5Purchase Agreement ("IT Transfer Costs") at no additional charge; provided, however, that nothing contained such costs shall not include any amounts paid or payable for Software that constitutes an upgrade from that utilized in this Section 2.5 the Business (provided that, if the version currently used in the Business is no longer available from, or is being phased out by, the applicable vendor, the costs associated with any such upgrade shall require Sellers, Purchasers or any of their respective Affiliates to disclose any attorney-client privileged information be included up to the extent that disclosure thereof might result in the loss of attorney-client privilege. As promptly as practicable but no later than sixty (60) days after the Closing Date, Purchasers shall prepare and deliver to Sellers a statement (the “Initial Post-Closing Adjustment Statement”) of (i) the Closing Working Capital, (ii) the Closing Cash Amount, (iii) the Closing Date Indebtedness, (iv) the Closing Date Transaction Fees; and (v) the Adjustment Amount, setting forth Purchasers’ calculation amount of the Adjustment Amount as original purchase price of the Closing together with reasonable Software being replaced). Buyer shall provide to Seller such back-up or supporting calculations and detail. The Initial Post-Closing Adjustment Statement shall be determined in accordance with the Accounting Methodology.
(b) If Sellers disagree in whole or in part with the Initial Post-Closing Adjustment Statement, Seller shall notify Purchasers in writing of such disagreement (the “Notice of Disagreement”) within thirty (30) days following Sellers’ receipt of the Initial Post-Closing Adjustment Statement (the “Review Period”), indicating the specific line items that are in dispute (the “Disputed Items”), describing the basis for such objection and providing Seller’s estimate of such Disputed Items; provided that Sellers and Purchasers shall be deemed data relating to have agreed upon all items and amounts that are not Disputed Items, unless the resolution of a Disputed Item affects an undisputed item, in which case such undisputed item shall remain open and be considered a Disputed Item. If no Notice of Disagreement is received by Purchasers prior to the expiration of the Review Period, then the Initial Post-Closing Adjustment Statement shall be deemed to have been accepted by Sellers and shall become final and binding upon the Parties in accordance with Section 2.5(e).
(c) During the thirty (30) days (or such longer period as the Parties may mutually agree) immediately following the delivery of a Notice of Disagreement (the “Resolution Period”), Sellers and Purchasers shall seek in good faith to resolve any differences that they may have with respect to Disputed Items. The Parties shall cooperate during such Resolution Period and Sellers and their Representatives shall have access to the books and records, working papers, schedules and calculations of the Purchasers and the Transferred Entities used in the preparation of the Initial Post-Closing Adjustment Statement, the Notice of Disagreement Statement and the determination calculations of the Disputed ItemsClosing Net Assets and IT Transfer Costs reflected thereon as Seller may reasonably request. Buyer shall also provide, and cause its representatives to provide, as applicable, Seller and its accountants and other representatives with such reasonable access to the books, records, files, working papers and personnel involved in the preparation of Buyer or its representatives, as applicable, at reasonable times and calculation thereof, during normal business hours, upon reasonable notice, as Seller may reasonably request for the purposes of evaluating the Post-Closing Statement and the calculations of Closing Net Assets and IT Transfer Costs reflected thereon.
Appears in 2 contracts
Samples: Asset Purchase Agreement (Avaya Inc), Asset Purchase Agreement (Commscope Inc)
Post-Closing Statement. (a) After the Closing Date, Sellers and Purchasers shall cooperate with each other and provide each other with such access to their respective books, records, accountants, audit work papers and relevant employees as they may reasonably request in connection with the matters addressed in this Section 2.5; provided, however, that nothing contained in this Section 2.5 shall require Sellers, Purchasers or any of their respective Affiliates to disclose any attorney-client privileged information to the extent that disclosure thereof might result in the loss of attorney-client privilege. As promptly as practicable but no later than Within sixty (60) days after the Closing Date, Purchasers Purchaser shall prepare in good faith and deliver to Sellers a written statement (the “Initial Post-Closing Adjustment Statement”) of (i) the Final Closing Working CapitalCash, (ii) the Closing Cash AmountFinal Net Working Capital, (iii) the Final Closing Date Indebtedness, (iv) the Closing Date Transaction Fees; Final Capital Expenditures Amount and (v) the Adjustment AmountFinal Transaction Expenses (collectively, setting forth Purchasers’ calculation of the Adjustment Amount as of the “Initial Closing Statement”), together with reasonable supporting calculations and detail. The Initial a notice that sets forth the proposed Post-Closing Adjustment and Purchase Price, as determined by Purchaser. The Initial Closing Statement shall be determined prepared in accordance with the Accounting MethodologyPrinciples, and applied in a manner consistent with the principles, methodologies and adjustments used in connection with the preparation of Appendix II.
(b) If Following the Closing through the date that the Final Closing Statement (as defined below) becomes final and binding, Sellers disagree in whole or in part with and their Affiliates and Representatives shall be permitted to reasonably access and review, during normal business hours upon reasonable advance notice, the Initial Post-Closing Adjustment Statementbooks, Seller shall notify Purchasers in writing of such disagreement (the “Notice of Disagreement”) within thirty (30) days following Sellers’ receipt records and work papers of the Initial Post-Closing Adjustment Statement Acquired Companies, and Purchaser shall, and shall cause its Affiliates (including the “Review Period”)Acquired Companies) and its and their respective employees, indicating the specific line items that are in dispute (the “Disputed Items”)accountants and other Representatives to, describing the basis for such objection cooperate with and providing Seller’s estimate of such Disputed Items; provided that assist Sellers and Purchasers shall be deemed their Affiliates and Representatives in connection with such review, including by providing reasonable access during normal business hours upon reasonable advance notice to have agreed upon all items such books, records and amounts that are not Disputed Items, unless the resolution of a Disputed Item affects an undisputed item, in which case such undisputed item shall remain open work papers and be considered a Disputed Item. If no Notice of Disagreement is received by Purchasers prior making available personnel to the expiration of the Review Period, then the Initial Post-Closing Adjustment Statement shall be deemed to have been accepted by Sellers and shall become final and binding upon the Parties in accordance with Section 2.5(e)extent reasonably requested.
(c) During the thirty (30) days (or such longer period as the Parties may mutually agree) immediately Purchaser agrees that, following the delivery of a Notice of Disagreement (Closing through the “Resolution Period”)date that the Final Closing Statement becomes final and binding, Sellers and Purchasers it shall seek in good faith not take or permit to resolve be taken any differences that they may have actions with respect to Disputed Items. The Parties shall cooperate during such Resolution Period and Sellers and their Representatives shall have access to the books and any accounting books, records, working papers, schedules and calculations of policies or procedures on which the Purchasers and the Transferred Entities used in the preparation of Acquired Companies’ Financial Statements or the Initial Post-Closing Adjustment StatementStatement are based, or on which the Notice of Disagreement and Final Closing Statement are to be based, that are intended to impede or delay the determination of the Disputed ItemsFinal Closing Cash, and to Final Net Working Capital, Final Closing Indebtedness, the personnel involved Final Capital Expenditures Amount or the Final Transaction Expenses or the preparation of any Notice of Disagreement or the Final Closing Statement in the preparation manner and calculation thereof, during normal business hours, upon reasonable noticeutilizing the methods provided by this Agreement.
Appears in 2 contracts
Samples: Stock Purchase Agreement (Ohio Power Co), Stock Purchase Agreement (Algonquin Power & Utilities Corp.)
Post-Closing Statement. (a) After the Closing Date, Sellers and Purchasers shall cooperate with each other and provide each other with such access to their respective books, records, accountants, audit work papers and relevant employees as they may reasonably request in connection with the matters addressed in this Section 2.5; provided, however, that nothing contained in this Section 2.5 shall require Sellers, Purchasers or any of their respective Affiliates to disclose any attorney-client privileged information to the extent that disclosure thereof might result in the loss of attorney-client privilege. As promptly as practicable but no later than sixty (60) Within 60 days after the Closing Date, Purchasers Purchaser shall prepare in good faith and deliver to Sellers a statement (the “Initial Post-Closing Adjustment Statement”) Seller statements of (i) the Closing Working Capital, (ii) Indebtedness of the Closing Cash AmountCompany, and (iii) the Closing Date Indebtedness, (iv) the Closing Date Transaction Fees; and (v) the Adjustment CapEx Shortfall Amount, setting forth Purchasers’ calculation of the Adjustment Amount in each case as of the Closing together with reasonable supporting calculations and detail(collectively, the “Initial - 23 - Closing Statement”). The Initial Post-Closing Adjustment Statement shall be determined prepared in accordance with the Accounting MethodologyPrinciples and in accordance with GAAP, in each case applied consistently with their application in connection with the preparation of the Company Financial Statements.
(b) If Sellers disagree in whole or in part with Following the Initial Post-Closing Adjustment Statementthrough the date that the Final Closing Statement becomes final and binding, Seller and its Affiliates and representatives shall notify Purchasers in writing of such disagreement (be permitted to access and review the “Notice of Disagreement”) within thirty (30) days following Sellers’ receipt books, records and work papers of the Initial Post-Closing Adjustment Statement Company, and Purchaser shall, and shall cause its Affiliates (including the “Review Period”)Company) and its and their respective employees, indicating the specific line items that are accountants and other representatives to, cooperate with and assist Seller and its Affiliates and representatives in dispute (the “Disputed Items”)connection with such review, describing the basis for including by providing access to such objection books, records and providing Seller’s estimate of such Disputed Items; provided that Sellers work papers and Purchasers shall be deemed to have agreed upon all items and amounts that are not Disputed Items, unless the resolution of a Disputed Item affects an undisputed item, in which case such undisputed item shall remain open and be considered a Disputed Item. If no Notice of Disagreement is received by Purchasers prior making available personnel to the expiration extent reasonably requested; provided, that the accountants of the Review PeriodPurchaser and its Affiliates shall not be obliged to make any books, then the Initial Post-Closing Adjustment Statement shall be deemed records or work papers available to have been accepted by Sellers Seller and shall become final and binding upon the Parties its Affiliates except in accordance with Section 2.5(e)such accountant’s normal disclosure procedures and then only after Seller or its Affiliate, as applicable, has signed a customary agreement relating to such access to books, records and work papers.
(c) During the thirty (30) days (or such longer period as the Parties may mutually agree) immediately Purchaser agrees that, following the delivery of a Notice of Disagreement (Closing through the “Resolution Period”)date that the Final Closing Statement becomes final and binding, Sellers and Purchasers shall seek in good faith it will not take or permit to resolve be taken any differences that they may have actions with respect to Disputed Items. The Parties shall cooperate during such Resolution Period and Sellers and their Representatives shall have access to the books and any accounting books, records, working papers, schedules and calculations of policies or procedures on which the Purchasers and the Transferred Entities used in the preparation of Company Financial Statements or the Initial Post-Closing Adjustment StatementStatement is based, or on which the Notice of Disagreement and Final Closing Statement is to be based, that would impede or delay the determination of the Disputed Itemsamount of Working Capital, and to Indebtedness of the personnel involved Company as of the Closing or the CapEx Shortfall Amount or the preparation of any Notice of Disagreement or the Final Closing Statement in the preparation manner and calculation thereof, during normal business hours, upon reasonable noticeutilizing the methods provided by this Agreement.
Appears in 1 contract
Samples: Stock Purchase Agreement
Post-Closing Statement. Within ninety (a90) After days after the Closing Date, Sellers Purchaser shall procure that the Company prepares and Purchasers delivers to the Sellers’ Representative and to the Purchaser a statement (the “Post-Closing Statement”) calculating the Closing Working Capital in good faith. Purchaser further shall cooperate procure that the Company provides the Sellers’ Representative, each Seller and the Accounting Referee, if any, with each other all information and provide each other with such access to their respective books, records, accountants, audit work papers and relevant employees as documents they may reasonably request in connection with their review and assessment of the matters addressed in this Section 2.5; provided, however, that nothing contained in this Section 2.5 shall require Sellers, Purchasers or any of their respective Affiliates to disclose any attorney-client privileged information to the extent that disclosure thereof might result in the loss of attorney-client privilege. As promptly as practicable but no later than sixty (60) days after the Closing Date, Purchasers shall prepare and deliver to Sellers a statement (the “Initial Post-Closing Adjustment Statement”) Statement and any item thereof. Unless the Sellers’ Representative and/or the Purchaser deliver a Dispute Notice (in case of (i) notification by the Closing Working CapitalSellers’ Representative, (ii) to the Closing Cash AmountPurchaser, (iii) and to the Closing Date IndebtednessSellers’ Representative, (iv) in case of notification by the Closing Date Transaction Fees; and (v) the Adjustment Amount, setting forth Purchasers’ calculation of the Adjustment Amount as of the Closing together with reasonable supporting calculations and detail. The Initial Post-Closing Adjustment Statement shall be determined in accordance with the Accounting Methodology.
(b) If Sellers disagree in whole or in part with the Initial Post-Closing Adjustment Statement, Seller shall notify Purchasers in writing of such disagreement (the “Notice of Disagreement”Purchaser) within thirty (30) days following Sellers’ after receipt of the Initial Post-Closing Adjustment Statement (by the “Review Period”)Sellers’ Representative and the Purchaser, indicating the specific line items that are in dispute (the “Disputed Items”), describing the basis for such objection and providing Seller’s estimate of such Disputed Items; provided that Sellers and Purchasers shall be deemed to have agreed upon all items and amounts that are not Disputed Items, unless the resolution of a Disputed Item affects an undisputed item, in which case such undisputed item shall remain open and be considered a Disputed Item. If no Notice of Disagreement is received by Purchasers prior to the expiration of the Review Period, then the Initial Post-Closing Adjustment Statement shall be deemed to have been accepted by Sellers the “Final Closing Statement,” shall be binding upon all parties, and shall become final and binding upon not be subject to dispute or review. If the Parties Sellers’ Representative and/or the Purchaser, acting in accordance good faith, disagree(s) with Section 2.5(e).
(c) During the Post-Closing Statement, the Sellers’ Representative or the Purchaser, respectively, may, within thirty (30) days after receipt thereof by the Sellers’ Representative and the Purchaser, notify the Purchaser (in case of the Sellers’ Representative disagreeing with the Post-Closing Statement) or such longer period as the Parties may mutually agreeSellers’ Representative (in case of the Purchaser being in disagreement with the Post-Closing Statement) immediately following the delivery of a Notice of Disagreement in writing (the “Resolution PeriodDispute Notice”), Sellers and Purchasers which Dispute Notice shall seek in good faith to resolve any differences that they may have with respect to Disputed Items. The Parties shall cooperate during such Resolution Period and Sellers and their Representatives shall have access to the books and records, working papers, schedules and calculations provide reasonable detail of the Purchasers and nature of each disputed item on the Transferred Entities used in the preparation of the Initial Post-Closing Adjustment Statement. The Sellers’ Representative and Purchaser shall first use commercially reasonable efforts to resolve such dispute between themselves and, if they are able to resolve such dispute, the Notice Post-Closing Statement shall be revised to the extent necessary to reflect such resolution, shall be deemed the “Final Closing Statement” and shall be conclusive and binding upon all parties and shall not be subject to dispute or review. If the Sellers’ Representative and Purchaser are unable to resolve the dispute, however, within fifteen (15) days after receipt by the Purchaser of Disagreement the Dispute Notice, the dispute shall be submitted (by way of a respective unilateral request of the Sellers’ Representative or the Purchaser, to be made to the Accounting Referee, of which the Purchaser, in case of a request by the Sellers’ Representative, or the Sellers’ Representative, in case of a request by the Purchaser, shall be notified simultaneously) to PWC (the “Accounting Referee”). In case this accounting firm rejects an appointment or does not accept an appointment within fifteen (15) days after been requested to do so, the Accounting Referee shall, upon unilateral request by the Purchaser or the Sellers’ Representative (with simultaneous notification of the Purchaser in case of a request by the Sellers’ Representative, and of the Sellers’ Representative, in case of a request by the Purchaser), be elected by the president of the Austrian Chamber of Accountants (Präsident der Xxxxxx der Wirtschaftstreuhänder Österreichs) among the Big Four (KPMG, E&Y, Deloitte). The Accounting Referee shall act as an expert and not arbiter and shall determine only those items in dispute on the Post-Closing Statement. Promptly, but no later than thirty (30) days after engagement, the Accounting Referee shall deliver a written report to the Sellers’ Representative and Purchaser as to the resolution of the disputed items and the determination resulting calculation of the Disputed ItemsClosing Working Capital. The Post-Closing Statement as determined by the Accounting Referee shall be deemed the “Final Closing Statement,” shall be conclusive and binding upon all parties and shall not be subject to dispute or review. The fees and expenses of the Accounting Referee in connection with the resolution of disputes pursuant to this Section 1.2(c)(ii) shall be borne in half by the Purchaser and in half by the Sellers. The Closing Working Capital set forth on the Final Closing Statement shall hereinafter be referred to as the “Final Working Capital”. CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, and to the personnel involved in the preparation and calculation thereofMARKED BY BRACKETS, during normal business hoursHAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE 406 OF THE SECURITIES ACT OF 1933, upon reasonable noticeAS AMENDED.
Appears in 1 contract
Samples: Share Purchase and Transfer Agreement (Reval Holdings Inc)
Post-Closing Statement. (a) After the Closing Date, Sellers and Purchasers shall cooperate with each other and provide each other with such access to their respective books, records, accountants, audit work papers and relevant employees as they may reasonably request in connection with the matters addressed in this Section 2.5; provided, however, that nothing contained in this Section 2.5 shall require Sellers, Purchasers or any of their respective Affiliates to disclose any attorney-client privileged information to the extent that disclosure thereof might result in the loss of attorney-client privilege. As promptly as practicable practicable, but no later than sixty (60) 90 days after the Closing Date, Purchasers shall HoldCo will prepare and deliver deliver, or cause to Sellers be prepared and delivered, to the Equityholders’ Representative a statement (the “Initial Post-Closing Adjustment Statement”) setting forth HoldCo’s good faith calculation of (i) the Closing Working Capital, (ii) the Closing Cash AmountLoan Book Net Equity Value, (iii) the Closing Date IndebtednessLoan Book Base Net Equity Value, (iv) the Closing Date Transaction Fees; and Loan Book Under Collateralization Amount, (v) Unpaid Transaction Expenses, (vi) Closing Indebtedness, (vii) Closing Cash, (viii) Crypto Proceeds, (ix) the Adjustment AmountIncremental Crypto Income Tax Liability Amount and, setting forth Purchasers’ calculation of based thereon the Crypto Income Tax Adjustment Amount as of and (x) the Closing together with reasonable supporting calculations and detail. The Initial Final Adjustment Amount (the “Post-Closing Adjustment Statement shall be determined in accordance Statement”), together with all supporting documentation reasonably requested by the Accounting MethodologyEquityholders’ Representative and used by HoldCo to prepare the Post-Closing Statement.
(b) If Sellers disagree in whole or in part the Equityholders’ Representative disagrees with HoldCo’s calculation of any of the Initial amounts set forth on the Post-Closing Adjustment Statement, Seller shall notify Purchasers in writing the Equityholders’ Representative may, within 30 days after receipt of such disagreement the Post-Closing Statement, deliver a written notice (the “Notice of Disagreement”) within thirty (30to HoldCo disagreeing with such calculation(s) days following Sellersand setting forth the Equityholders’ receipt Representative’s calculation of such disputed amount(s), a description in reasonable detail of the Initial Post-Closing grounds for each such disagreement and the Equityholders’ Representative’s calculation of the Final Adjustment Statement (Amount, and the “Review Period”), indicating the specific line items that are in dispute (the “Disputed Items”), describing the basis for such objection and providing Seller’s estimate of such Disputed Items; provided that Sellers and Purchasers Equityholders’ Representative shall be deemed to have agreed upon with all other items and amounts contained in the Post-Closing Statement that are not Disputed Itemsidentified as disagreed in the Notice of Disagreement, unless which such items and amounts shall be final, binding and conclusive for all purposes hereunder to the resolution of extent the Equityholders’ Representative does not deliver a Disputed Item affects an undisputed item, in which case such undisputed item shall remain open and be considered a Disputed Item. If no Notice of Disagreement is received by Purchasers prior with respect thereto within such 30-day period. If the Equityholders’ Representative fails to deliver a Notice of Disagreement within such 30-day period, the expiration of the Review Period, then the Initial Post-Closing Adjustment Statement Equityholders’ Representative shall be deemed to have agreed to the Post-Closing Statement and all items and amounts set forth therein, which shall be final, binding and conclusive for all purposes hereunder.
(c) If a Notice of Disagreement is timely delivered pursuant to Section 3.14(b), the Equityholders’ Representative and HoldCo shall, during the 30 days following such delivery, use commercially reasonable efforts to reach agreement on the disputed items or amounts in order to determine, as may be required, the Final Amounts. If, after the expiration of such 30-day period or any mutually agreed extension thereof, the Equityholders’ Representative and HoldCo are unable to reach such agreement on all such items and amounts, then, upon the request of the Equityholders’ Representative or HoldCo, the Equityholders’ Representative and HoldCo shall promptly thereafter submit the remaining disputed items (but only such remaining disputed items) to an independent accounting firm of nationally recognized standing that is mutually agreed upon in good faith in writing by HoldCo and the Equityholders’ Representative (the “Accounting Referee”) for resolution. In making such determination, the Accounting Referee (i) shall consider only those items or amounts in the Post-Closing Statement as to which the Equityholders’ Representative has disagreed and which have not been accepted resolved prior to submission to the Accounting Referee, (ii) shall not be entitled to hold any hearings or take or order the taking of depositions or other testimony under oath, (iii) with respect to each matter submitted to it, shall not resolve such matter in a manner that is more favorable to HoldCo than the Post-Closing Statement or more favorable to the Equityholders’ Representative than the Notice of Disagreement and (iv) shall not consider any proposals related to settlement of any disputed items made by Sellers any of the parties. Each of HoldCo and the Equityholders’ Representative shall be entitled to submit (with a copy to the other party) to the Accounting Referee such documents and materials and to make such presentations and arguments as such party shall deem necessary or appropriate; provided that neither party shall have any ex parte communications with the Accounting Referee. The Accounting Referee is not authorized to, and shall become not, make any other determination including (A) any determination with respect to any matter included in the Post-Closing Statement or the Equityholders’ Representative’s Notice of Disagreement that was not submitted for resolution to the Accounting Referee or (B) any determination as to compliance by the Company, any Equityholder, any of the Parent Parties or the Surviving Company with any of its covenants in this Agreement. Neither HoldCo nor the Equityholders’ Representative shall make, and the Equityholders’ Representative shall prevent any Equityholders from making, any communications with the Accounting Referee to which the Equityholders’ Representative is not a party, in the case of communications by HoldCo, or HoldCo is not a party, in the case of communications by the Equityholders’ Representative or the Equityholders. Any disputes not within the scope of the disputes to be resolved by the Accounting Referee pursuant to this Section 3.14(c) (as well as any disputes about the scope of disputes to be resolved by the Accounting Referee pursuant to this Section 3.14(c)) shall be resolved pursuant to Section 14.07.
(d) The Accounting Referee shall deliver to the Equityholders’ Representative and HoldCo, as promptly as practicable and no later than 30 days after its appointment, a written report setting forth such determination which shall be final and binding upon the Parties Equityholders’ Representative, the Equityholders and HoldCo absent fraud or manifest error. The dispute resolution by the Accounting Referee under this Section 3.14 shall constitute an expert determination and shall not constitute an arbitration. The fees and expenses of the Accounting Referee shall be borne by HoldCo and the Equityholders’ Representative (on behalf of the Equityholders and as a Transaction Expense to the extent not otherwise paid by the Equityholders’ Representative) in accordance with Section 2.5(e).
(c) During the thirty (30) days (or such longer period same proportion as the Parties may mutually agreeaggregate amount of items disputed in the Notice of Disagreement submitted to the Accounting Referee that are unsuccessfully disputed by each such party (as finally determined by the Accounting Referee) immediately following bears to the delivery total amount of such items so submitted. For example, if the Equityholders’ Representative timely submits a Notice of Disagreement for items totaling $1,000, and if HoldCo contests only $500 of such amount, and the Accounting Referee ultimately resolves the dispute by awarding Equityholders’ Representative $300 of the $500 contested, then the costs and expenses of the Accounting Referee will be allocated 60% (the “Resolution Period”)i.e., Sellers 300/500) to HoldCo and Purchasers shall seek in good faith to resolve any differences that they may have with respect to Disputed Items. The Parties shall cooperate during such Resolution Period and Sellers and their Representatives shall have access 40% (i.e., 200/500) to the books Equityholders’ Representative. All other costs, fees and records, working papers, schedules expenses incurred by the parties in connection with resolving such dispute shall be borne by the party incurring such cost and calculations of the Purchasers and the Transferred Entities used in the preparation of the Initial Post-Closing Adjustment Statement, the Notice of Disagreement and the determination of the Disputed Items, and to the personnel involved in the preparation and calculation thereof, during normal business hours, upon reasonable noticeexpense.
Appears in 1 contract
Post-Closing Statement. (a) After No later than forty-five (45) calendar days after the date hereof, the Buyer shall deliver to the Seller a post-closing statement (the “Post-Closing DateStatement”) in the form attached hereto as Schedule F, Sellers which shall set forth the actual number of Eligible Membership Contracts as of the date hereof and Purchasers a calculation of the actual Purchase Price as of the date hereof, and which shall be prepared by the Buyer in good faith and in a manner otherwise consistent with the provisions of this Agreement (including by calculating the number of Eligible Membership Contracts as of the date hereof in the manner and in accordance with the methodology set forth on Schedule B), and shall be accompanied by such other information and methods of calculation as may be reasonably necessary for the Seller to evaluate the accuracy thereof. The Seller shall cooperate in good faith with each other the Buyer in the preparation of the Post-Closing Statement. The Seller shall provide the Buyer and provide each other its representatives, including its independent accountants, with such reasonable access to their respective the books, records, accountants, audit work papers facilities and relevant employees as they personnel of the Seller so that the Buyer and its representatives may reasonably request in connection with prepare the matters addressed in this Section 2.5; provided, however, that nothing contained in this Section 2.5 shall require Sellers, Purchasers or any of their respective Affiliates to disclose any attorney-client privileged information to the extent that disclosure thereof might result in the loss of attorney-client privilege. As promptly as practicable but no later than sixty (60) days after the Closing Date, Purchasers shall prepare and deliver to Sellers a statement (the “Initial Post-Closing Adjustment Statement”) of (i) the Closing Working Capital, (ii) the Closing Cash Amount, (iii) the Closing Date Indebtedness, (iv) the Closing Date Transaction Fees; and (v) the Adjustment Amount, setting forth Purchasers’ calculation of the Adjustment Amount as of the Closing together with reasonable supporting calculations and detail. The Initial Post-Closing Adjustment Statement shall be determined in accordance with the Accounting Methodology.
(b) If Sellers disagree in whole or in part with During the Initial fifteen (15) calendar day period after delivery of the Post-Closing Adjustment Statement, Statement to the Seller shall notify Purchasers in writing of such disagreement (the “Notice of Disagreement”) within thirty (30) days following Sellers’ receipt of the Initial Post-Closing Adjustment Statement (the “Review Period”), indicating (i) the specific line items Buyer shall provide the Seller and its representatives, with reasonable access to the books, records and personnel of the Buyer so that are Seller and its representatives may evaluate the Post-Closing Statement and (ii) the Seller may dispute any portion of the Post-Closing Statement by giving written notice (a “Notice of Disagreement”) to the Buyer setting forth in dispute (the “Disputed Items”), describing reasonable detail the basis for such objection dispute and providing Sellerthe amount so disputed (hereinafter called a “Disagreement”). The Seller may not amend its Notice of Disagreement, including on the basis of facts subsequently discovered as a result of the Buyer’s estimate review of such Disputed Items; provided that Sellers and Purchasers shall be deemed the Notice of Disagreement. The failure by the Seller to have agreed upon all items and amounts that are not Disputed Items, unless the resolution of deliver a Disputed Item affects an undisputed item, in which case such undisputed item shall remain open and be considered a Disputed Item. If no Notice of Disagreement is received during the Review Period shall constitute an irrevocable acceptance by Purchasers prior to the expiration Seller of the Post-Closing Statement in the form delivered by the Buyer. If the Seller delivers a Notice of Disagreement during the Review Period, then the Initial Post-Closing Adjustment Statement parties shall promptly commence good faith negotiations with a view to resolving such Disagreement.
(c) If the parties are not able to resolve any Disagreement within ten (10) calendar days after the delivery by the Seller of the Notice of Disagreement, such Disagreement shall be referred to a nationally or regionally recognized accounting firm of outstanding reputation as is mutually agreed to by the Buyer and the Seller (the “Accountant”) for a resolution by it in accordance with this Agreement (which agreement as to the Accountant shall not be unreasonably withheld, delayed or conditioned by the Buyer or the Seller). The determination of the Accountant shall be final, binding and conclusive, shall not be subject to appeal and shall be deemed to have been accepted by Sellers and shall become final and binding upon the Parties in accordance with Section 2.5(e).
(c) During the thirty (30) days (or such longer period as the Parties may mutually agree) immediately following the delivery of a Notice of Disagreement (the “Resolution Period”), Sellers and Purchasers shall seek in good faith to resolve any differences that they may have with respect to Disputed Items. The Parties shall cooperate during such Resolution Period and Sellers and their Representatives shall have access to the books and records, working papers, schedules and calculations of the Purchasers Seller and the Transferred Entities used in the preparation of the Initial Post-Closing Adjustment StatementBuyer, the Notice of Disagreement subject only to gross negligence or manifest error, and the determination of amount so determined shall be used to complete the Disputed Items, and to the personnel involved in the preparation and calculation thereof, during normal business hours, upon reasonable notice.Final Post-
Appears in 1 contract
Post-Closing Statement. (a) After the Closing Date, Sellers and Purchasers shall cooperate with each other and provide each other with such access to their respective books, records, accountants, audit work papers and relevant employees as they may reasonably request in connection with the matters addressed in this Section 2.5; provided, however, that nothing contained in this Section 2.5 shall require Sellers, Purchasers or any of their respective Affiliates to disclose any attorney-client privileged information to the extent that disclosure thereof might result in the loss of attorney-client privilege. As promptly as practicable but no later than sixty (60) Within 120 days after the Closing Date, Purchasers shall prepare the Buyer will cause to be prepared and deliver delivered to Sellers the Company a statement (the “Initial Post-Closing Adjustment Post‑Closing Statement”) ), together with any relevant supporting materials, which will include a supporting trial balance (which, for the avoidance of doubt, will not be prepared pursuant to the Accounting Methods)), setting forth the Buyer’s calculation of (iA) the Closing Working Capital as derived therefrom (“Final Working Capital”), (iiB) the combined amount of Cash of the Divested Companies and any other Cash which otherwise constitutes Sold Assets immediately prior to the Closing Cash (the “Final Cash”), (C) the combined amount of Debt Obligations of the Divested Companies and any other Debt Obligations which otherwise constitute Assumed Liabilities actually existing as of immediately prior to the Closing (the “Final Indebtedness”), (D) the combined amount of unpaid Transaction Expenses (the “Final Transaction Expenses”), (E) the Unspent Capital Expenditure Amount (the “Final Unspent Capital Expenditure Amount”), (F) the Cap Gemini Excess Amount, (iiiG) the Closing Date Esfel Amount, (H) the Separation Delay Amount, (I) the Earn-Out Amount, and (J) the Purchase Price calculated as the Initial Value as adjusted as provided below to give effect to the Final Working Capital, the Final Cash, the Final Indebtedness, (iv) the Closing Date Final Transaction Fees; and (v) Expenses, the Adjustment Final Unspent Capital Expenditure Amount, setting forth Purchasers’ calculation of the Adjustment Cap Gemini Excess Amount, the Esfel Amount, the Separation Delay Amount as of and the Closing together with reasonable supporting calculations and detailEarn-Out Amount. The Initial Post-Closing Adjustment Statement shall will be determined prepared 31 in accordance with the Accounting Methodology.
(b) If Sellers disagree Methods and presented in whole or in part with the Initial Post-Closing Adjustment Statementform attached hereto as Exhibit G. During such 120‑day period, Seller shall notify Purchasers in writing of such disagreement (the “Notice of Disagreement”) within thirty (30) days following Sellers’ receipt Company will, at the request of the Initial Post-Closing Adjustment Statement (Buyer, on reasonable prior notice from the “Review Period”)Buyer and during normal business hours, indicating afford the specific line items that are in dispute (the “Disputed Items”), describing the basis for such objection and providing Seller’s estimate of such Disputed Items; provided that Sellers and Purchasers shall be deemed to have agreed upon all items and amounts that are not Disputed Items, unless the resolution of a Disputed Item affects an undisputed item, in which case such undisputed item shall remain open and be considered a Disputed Item. If no Notice of Disagreement is received by Purchasers prior Buyer reasonable access to the expiration of the Review Periodbooks, then the Initial Post-Closing Adjustment Statement shall be deemed to have been accepted by Sellers records and shall become final and binding upon the Parties in accordance with Section 2.5(e).
(c) During the thirty (30) days (or such longer period as the Parties may mutually agree) immediately following the delivery of a Notice of Disagreement (the “Resolution Period”), Sellers and Purchasers shall seek in good faith to resolve any differences that they may have personnel with respect to Disputed Itemsthe Business and otherwise retained by the Company or its Affiliates (to the extent relevant to the determination of the Final Working Capital, the Final Cash, the Final Indebtedness the Final Transaction Expenses and the Final Unspent Capital Expenditures Amount) and otherwise reasonably cooperate with the Buyer in connection with its preparation of the Post‑Closing Statement. The Parties shall Company will assist, and will procure that its Affiliates assist, and cooperate during such Resolution Period and Sellers and their Representatives shall have access to with the books and records, working papers, schedules and calculations of the Purchasers and the Transferred Entities used Buyer in the preparation of the Post‑Closing Statement. If the Final Working Capital (as set forth in the Post‑Closing Statement) is less than the Target Working Capital, then the Initial Post-Closing Adjustment Value will be adjusted downward by an amount equal to the amount of the deficiency between the Target Working Capital and the Final Working Capital. If the Final Working Capital (as set forth in the Post‑Closing Statement) is greater than the Target Working Capital, then the Initial Value will be adjusted upward by an amount equal to the amount of the excess between the Final Working Capital and the Target Working Capital. If the Final Working Capital is equal to the Target Working Capital, then no adjustment will be made to the Initial Value with respect to the Final Working Capital. In addition, the Notice Initial Value will be adjusted upward by the amount of Disagreement any Final Cash and any Earn-Out Amount, and adjusted downward by the amount of any Final Indebtedness, any Final Transaction Expenses, any Final Unspent Capital Expenditure Amount, the Cap Gemini Excess Amount, the Esfel Amount, and the determination of the Disputed Items, and to the personnel involved in the preparation and calculation thereof, during normal business hours, upon reasonable noticeSeparation Delay Amount.
Appears in 1 contract
Post-Closing Statement. (ai) After the Closing Date, Sellers and Purchasers shall cooperate with each other and provide each other with such access to their respective books, records, accountants, audit work papers and relevant employees as they may reasonably request in connection with the matters addressed in this Section 2.5; provided, however, that nothing contained in this Section 2.5 shall require Sellers, Purchasers or any of their respective Affiliates to disclose any attorney-client privileged information to the extent that disclosure thereof might result in the loss of attorney-client privilege. As promptly as practicable but no later than Within sixty (60) days after the Closing Date, Purchasers shall the Surviving Corporation will prepare and deliver to Sellers Orbital, a proposed closing statement (the “Initial Post-"Closing Adjustment Statement”") of (i) the Closing Working Capital, (ii) the Closing Cash Amount, (iii) the Closing Date Indebtedness, (iv) the Closing Date Transaction Fees; and (v) the Adjustment Amount, setting forth Purchasers’ calculation the financial statements of the Adjustment Amount Surviving Corporation and Magellan DIS, Inc. as of the Closing together with reasonable supporting calculations and detail. The Initial Post-Closing Adjustment Statement shall be determined in accordance with the Accounting MethodologyDate.
(bii) If Sellers disagree in whole or in part with Within fifteen (15) days after the Initial Post-delivery by the Surviving Corporation of the Closing Adjustment Statement, Seller Orbital and its accountants shall notify Purchasers have the right to review the Closing Statement and the calculations included therein. If Orbital objects to the manner in writing of such disagreement which the Closing Statement has been prepared, Orbital shall deliver written notice (the “Notice "Dispute Notice") to the Surviving Corporation setting forth in reasonable detail a description of Disagreement”the basis of their objection and the adjustments to the Closing Statement that Orbital believes should be made.
(iii) within thirty Within fifteen (3015) days following Sellers’ after the Surviving Corporation's receipt of the Initial Post-Closing Adjustment Statement Dispute Notice, the Surviving Corporation and its Representatives and accountants shall review the Dispute Notice and deliver a written response to Orbital (the “Review Period”), "Response") indicating whether and the specific line items that are extent to which the Surviving Corporation agrees or disagrees with the objections set forth in dispute (the “Disputed Items”), describing the basis for such objection and providing Seller’s estimate of such Disputed Items; provided that Sellers and Purchasers shall be deemed to have agreed upon all items and amounts that are not Disputed Items, unless the resolution of a Disputed Item affects an undisputed item, in which case such undisputed item shall remain open and be considered a Disputed Item. If no Notice of Disagreement is received by Purchasers prior to the expiration of the Review Period, then the Initial Post-Closing Adjustment Statement shall be deemed to have been accepted by Sellers and shall become final and binding upon the Parties in accordance with Section 2.5(e)Dispute Notice.
(civ) During the thirty a period of fifteen (3015) days (or such longer period as after Orbital's receipt of the Parties may mutually agree) immediately following Response, the delivery of a Notice of Disagreement (the “Resolution Period”), Sellers Surviving Corporation and Purchasers Orbital shall seek attempt in good faith to resolve in writing any differences that they may have such disputed items, and any such resolution will be conclusive and binding upon the parties. If the parties are unable to reach an 82 88 agreement with respect to Disputed Itemsany disputed item during such 15-day period, the parties shall, promptly after the expiration of such period, submit all unresolved disputes to an independent public accounting firm mutually agreeable to the parties (the "CPA Firm"). If the parties cannot agree on the selection of the independent public accounting firm to act as the CPA Firm, either party may request the American Arbitration Association to appoint such a firm, and such appointment shall be conclusive and binding on the parties. Promptly, but no later than fifteen (15) days after its acceptance of its appointment, the CPA Firm shall determine, only with respect to the remaining items in dispute so submitted, whether and to what extent, if any, the Closing Statement requires adjustment. The Parties parties shall cooperate during such Resolution Period instruct the CPA Firm to deliver its written report as to the resolution of all disputes no later than fifteen (15) days after the disputes are submitted to the CPA Firm. The Surviving Corporation and Sellers Orbital shall make available to the CPA Firm all relevant books and their Representatives records and any work papers (including those of the parties' respective accountants) relating to the Closing Statement and all other items reasonably requested by the CPA Firm. The CPA Firm shall have access exclusive jurisdiction over, and resort to the books CPA Firm as provided in this paragraph (iv) shall be the sole recourse and records, working papers, schedules and calculations remedy of the Purchasers parties against one another or any other person with respect to, any disputes arising out of or relating to the Closing Statement; and the Transferred Entities used CPA Firm's determination shall be conclusive and binding on the parties and shall be enforceable in a court of law.
(v) The Surviving Corporation and Orbital shall bear the preparation fees and expenses of their respective accountants and other Representatives. The fees and expenses of the Initial Post-Closing Adjustment Statement, CPA Firm shall be borne equally by the Notice of Disagreement Surviving Corporation and the determination of the Disputed Items, and to the personnel involved in the preparation and calculation thereof, during normal business hours, upon reasonable noticeOrbital.
Appears in 1 contract
Post-Closing Statement. (a) After the Closing DateAs soon as practical, Sellers and Purchasers shall cooperate with each other and provide each other with such access to their respective books, records, accountants, audit work papers and relevant employees as they may reasonably request but in connection with the matters addressed in this Section 2.5; provided, however, that nothing contained in this Section 2.5 shall require Sellers, Purchasers or any of their respective Affiliates to disclose any attorney-client privileged information to the extent that disclosure thereof might result in the loss of attorney-client privilege. As promptly as practicable but no event later than sixty (60) 180 days after the Closing Date, Purchasers Buyer shall prepare and deliver cause to Sellers be delivered to Parent, a statement (the “Initial Post-Closing Adjustment Statement”) setting forth Buyer’s calculation of (i) the (1) Closing Cash, (2) Closing Working Capital, (3) Closing Indebtedness and (4) Closing Transaction Expenses, and (ii) the Closing Cash Amount, (iii) the Closing Date Indebtedness, (iv) the Closing Date Transaction Fees; and (v) the Adjustment Amount, setting forth Purchasers’ a calculation of the Net Adjustment Amount as of the Closing and resulting Final Purchase Price, together with reasonable supporting calculations documentation and detailwork papers. The Initial Any actions taken by Bxxxx at or after the Closing shall not be taken into account for the purpose of preparing the Post-Closing Statement or the determination of Closing Cash, Closing Working Capital, Closing Indebtedness, Closing Transaction Expenses, or the resulting Net Adjustment Statement shall be determined in accordance with the Accounting MethodologyAmount or Final Purchase Price.
(b) If Sellers disagree in whole or in part with After receipt of the Initial Post-Closing Adjustment Statement, Seller Parent and its Representatives shall notify Purchasers in writing of such disagreement (the “Notice of Disagreement”) within thirty (30) have 30 days following Sellers’ receipt of the Initial Post-Closing Adjustment Statement (the “Review Period”)) to review the Post-Closing Statement, indicating together with the specific line items that are supporting documents and work papers used in dispute (the “Disputed Items”)preparation thereof. In connection with such review, describing Buyer shall give, and shall cause the basis for Acquired Entities and each of their respective Representatives to give, to the Parent and its Representatives reasonable access, upon reasonable prior notice, to the Books and Records and other materials of the Acquired Entities and the personnel of, and work papers prepared by or for, Buyer and its Representatives, including such objection and providing Seller’s estimate of such Disputed Items; provided that Sellers and Purchasers shall be deemed financial information relating to have agreed upon all items and amounts that are not Disputed Items, unless the resolution of a Disputed Item affects an undisputed itemAcquired Entities as Parent or its Representatives may request, in which case such undisputed item shall remain open each case, in order to permit the timely and be considered complete review of the Post-Closing Statement in accordance with this Section 2.5(b).
(c) If Parent accepts the Post-Closing Statement and the calculations contained therein in writing or has not given written notice to Buyer setting forth any objection thereto (a Disputed Item. If no Notice “Statement of Disagreement is received by Purchasers Objection”) prior to the expiration of the Review Period, then the Initial Post-Closing Adjustment Statement shall be deemed to have been accepted by Sellers and shall become final and binding upon the Parties Parties. Any Statement of Objection shall set forth in reasonable detail the item(s) in the Post-Closing Statement that Parent believes has not been prepared in accordance with Section 2.5(e)this Agreement and Parent’s alternative calculation of Closing Cash, Closing Working Capital, Closing Indebtedness, and Closing Transaction Expenses, and the Net Adjustment Amount and Final Purchase Price resulting therefrom.
(cd) During In the thirty (30) days (or such longer period as event that Parent delivers a Statement of Objection during the Review Period, the Parties may mutually agree) immediately following the delivery of a Notice of Disagreement (the “Resolution Period”), Sellers and Purchasers shall seek consult in good faith to resolve in writing any differences that they may have with respect items in dispute specified in the Statement of Objection. If the Parties are unable to Disputed Itemsreach an agreement as to such disputed items within 30 days following delivery of the Statement of Objection, then the matter shall be submitted as promptly as practicable to Deloitte, or if Deloitte is unwilling or unable to serve in such capacity, to such other independent accounting firm agreed to by the Parties (such firm, the “Accounting Firm”), who shall, acting as an expert and not an arbitrator, resolve the matters still in dispute and adjust Closing Cash, Closing Working Capital, Closing Indebtedness, and Closing Transaction Expenses, and the Net Adjustment Amount and Final Purchase Price resulting therefrom, as applicable.
(e) The Accounting Firm’s final determination of the remaining items in dispute shall be solely based on (i) the definitions and other applicable provisions of this Agreement, (ii) a single written presentation submitted by each Party (which the Accounting Firm shall be instructed to distribute to the other Party upon receipt of both such presentations), (iii) a single written response of each of Party to each such presentation so submitted (which the Accounting Firm shall be instructed to distribute to the other Party upon receipt of such responses), and (iv) the information contained in the Post-Closing Statement and the Statement of Objection. The Parties shall cooperate during such Resolution Period and Sellers and use their Representatives shall have access commercially reasonable efforts to cause the Accounting Firm to finally resolve all dispute items as soon as practicable, but in any event within 30 days after the date the disputed items are first submitted to the books and recordsAccounting Firm. With respect to each disputed item, working papersthe Accounting Firm may not assign a value greater than the greatest value claimed for such disputed item by either Party or lower than the lowest value claimed for such disputed item by either Party, schedules and calculations in each case, as set forth in the Post-Closing Statement or the Statement of Objection, as applicable. The written determination of the Purchasers disputed items by the Accounting Firm shall be final, conclusive, and binding on the Parties. Following the Accounting Firm’s final determination, the Accounting Firm will also prepare and deliver to the Parties a calculation and statement that sets forth the finally determined Closing Cash, Closing Working Capital, Closing Indebtedness, and Closing Transaction Expenses, and the Transferred Entities used Net Adjustment Amount and Final Purchase Price resulting therefrom.
(f) The fees and expenses of the Accounting Firm shall be borne proportionately by the Parties on the basis of the discrepancy (in dollars) between such Party’s determination of the disputed items (in the aggregate) as presented to the Accounting Firm and the final and binding determination of such disputed items (in the aggregate) by the Accounting Firm (e.g., if Buyer is awarded 60% of the difference between the value assigned in the Post-Closing Statement and the value assigned by in the Statement of Objection, then Buyer must pay 40% of the Accounting Firm’s fees and expenses, and Parent must pay the remaining 60% of the Accounting Firm’s fees and expenses). The Parties will otherwise each bear their own costs and expenses incurred in connection with the preparation of the Initial Post-Closing Adjustment Statement, the Notice of Disagreement Statement and the Statement of Objection.
(g) If the Net Adjustment Amount is positive, then Buyer will make (or cause to be made) to Parent a payment by wire transfer of immediately available funds in the amount equal the Net Adjustment Amount to an account designated in writing by Parent within five Business Days following the final determination of the Disputed ItemsNet Adjustment Amount pursuant to this Section 2.5. If the Net Adjustment Amount is negative, then Parent will make (or cause to be made) a payment to Buyer by wire transfer of immediately available funds in the amount equal the Net Adjustment Amount to an account designated in writing by Buyer within five Business Days following the final determination of the Net Adjustment Amount pursuant to this Section 2.5.
(h) For any invoiced accounts receivable that are outstanding as of the Closing Date (the “Invoiced Accounts Receivable”), Buyer shall, and shall cause the Acquired Entities to, during the period from the Closing Date through the date that is 360 days following the Closing Date (the “Collection Period”), use commercially reasonable efforts to collect such Invoiced Accounts Receivable. If any of such Invoiced Accounts Receivable is not collected during the 180 day period after the Closing, such uncollected amounts shall be treated as a deduction for purposes of the Net Adjustment Amount. Promptly following completion of the final determination of the Net Adjustment Amount pursuant to this Section 2.5, Buyer shall (i) until the end of the Collection Period, continue using commercially reasonable efforts to collect any Invoiced Accounts Receivable that had not been collected as of the 180th day following the Closing and (ii) agree to assign to Parent any amounts collected by Buyer as a result of such efforts. No Party shall take any action the purpose of which is to interfere with the collection of such Invoiced Accounts Receivable.
(i) Notwithstanding anything to the personnel involved contrary contained herein, (i) the process and adjustment set forth in this Section 2.5 shall be the sole and exclusive remedy of the Parties with respect to items required hereunder to be included or reflected in the preparation calculation of the Final Purchase Price and calculation thereof(ii) amounts paid pursuant to this Section 2.5 shall be deemed for Tax purposes to be an adjustment to the Closing Purchase Price, during normal business hours, upon reasonable noticeto the extent permitted by applicable Regulations.
Appears in 1 contract
Samples: Share Purchase Agreement (Information Services Group Inc.)
Post-Closing Statement. (a) After the Closing Date, Sellers and Purchasers shall cooperate with each other and provide each other with such access to their respective books, records, accountants, audit work papers and relevant employees as they may reasonably request in connection with the matters addressed in this Section 2.5; provided, however, that nothing contained in this Section 2.5 shall require Sellers, Purchasers or any of their respective Affiliates to disclose any attorney-client privileged information to the extent that disclosure thereof might result in the loss of attorney-client privilege. As promptly as practicable but no later than sixty (60) Within 120 days after the Closing Date, Purchasers shall prepare the Buyer will cause to be prepared and deliver delivered to Sellers the Company a statement (the “Initial Post-Closing Adjustment Post‑Closing Statement”) ), together with any relevant supporting materials, which will include a supporting trial balance (which, for the avoidance of doubt, will not be prepared pursuant to the Accounting Methods)), setting forth the Buyer’s calculation of (iA) the Closing Working Capital as derived therefrom (“Final Working Capital”), (iiB) the combined amount of Cash of the Divested Companies and any other Cash which otherwise constitutes Sold Assets immediately prior to the Closing Cash (the “Final Cash”), (C) the combined amount of Debt Obligations of the Divested Companies and any other Debt Obligations which otherwise constitute Assumed Liabilities actually existing as of immediately prior to the Closing (the “Final Indebtedness”), (D) the combined amount of unpaid Transaction Expenses (the “Final Transaction Expenses”), (E) the Unspent Capital Expenditure Amount (the “Final Unspent Capital Expenditure Amount”), (F) the Cap Gemini Excess Amount, (iiiG) the Closing Date Esfel Amount, (H) the Separation Delay Amount, (I) the Earn-Out Amount, (J) the Debt Swap Amount and (K) the Purchase Price calculated as the Initial Value as adjusted as provided below to give effect to the Final Working Capital, the Final Cash, the Final Indebtedness, (iv) the Closing Date Final Transaction Fees; and (v) Expenses, the Adjustment Final Unspent Capital Expenditure Amount, setting forth Purchasers’ calculation of the Adjustment Cap Gemini Excess Amount, the Esfel Amount, the Separation Delay Amount, the Earn-Out Amount as of and the Closing together with reasonable supporting calculations and detailDebt Swap Amount. The Initial Post-Closing Adjustment Statement shall will be determined prepared in accordance with the Accounting Methodology.
(b) If Sellers disagree Methods and presented in whole or in part with the Initial Post-Closing Adjustment Statementform attached hereto as Exhibit G. During such 120‑day period, Seller shall notify Purchasers in writing of such disagreement (the “Notice of Disagreement”) within thirty (30) days following Sellers’ receipt Company will, at the request of the Initial Post-Closing Adjustment Statement (Buyer, on reasonable prior notice from the “Review Period”)Buyer and during normal business hours, indicating afford the specific line items that are in dispute (the “Disputed Items”), describing the basis for such objection and providing Seller’s estimate of such Disputed Items; provided that Sellers and Purchasers shall be deemed to have agreed upon all items and amounts that are not Disputed Items, unless the resolution of a Disputed Item affects an undisputed item, in which case such undisputed item shall remain open and be considered a Disputed Item. If no Notice of Disagreement is received by Purchasers prior Buyer reasonable access to the expiration of the Review Periodbooks, then the Initial Post-Closing Adjustment Statement shall be deemed to have been accepted by Sellers records and shall become final and binding upon the Parties in accordance with Section 2.5(e).
(c) During the thirty (30) days (or such longer period as the Parties may mutually agree) immediately following the delivery of a Notice of Disagreement (the “Resolution Period”), Sellers and Purchasers shall seek in good faith to resolve any differences that they may have personnel with respect to Disputed Itemsthe Business and otherwise retained by the Company or its Affiliates (to the extent relevant to the determination of the Final Working Capital, the Final Cash, the Final Indebtedness the Final Transaction Expenses and the Final Unspent Capital Expenditures Amount) and otherwise reasonably cooperate with the Buyer in connection with its preparation of the Post‑Closing Statement. The Parties shall Company will assist, and will procure that its Affiliates assist, and cooperate during such Resolution Period and Sellers and their Representatives shall have access to with the books and records, working papers, schedules and calculations of the Purchasers and the Transferred Entities used Buyer in the preparation of the Post‑Closing Statement. If the Final Working Capital (as set forth in the Post‑Closing Statement) is less than the Target Working Capital, then the Initial Post-Closing Adjustment Value will be adjusted downward by an amount equal to the amount of the deficiency between the Target Working Capital and the Final Working Capital. If the Final Working Capital (as set forth in the Post‑Closing Statement) is greater than the Target Working Capital, then the Initial Value will be adjusted upward by an amount equal to the amount of the excess between the Final Working Capital and the Target Working Capital. If the Final Working Capital is equal to the Target Working Capital, then no adjustment will be made to the Initial Value with respect to the Final Working Capital. In addition, the Notice Initial Value will be adjusted upward by the amount of Disagreement any Final Cash and any Earn-Out Amount, and adjusted downward by the amount of any Final Indebtedness, any Final Transaction Expenses, any Final Unspent Capital Expenditure Amount, the Cap Gemini Excess Amount, the Esfel Amount, the Separation Delay Amount and the determination of the Disputed Items, and to the personnel involved in the preparation and calculation thereof, during normal business hours, upon reasonable notice.Debt Swap Amount.
Appears in 1 contract
Post-Closing Statement. (a) After the Closing Date, Sellers and Purchasers shall cooperate with each other and provide each other with such access to their respective books, records, accountants, audit work papers and relevant employees as they may reasonably request in connection with the matters addressed in this Section 2.5; provided, however, that nothing contained in this Section 2.5 shall require Sellers, Purchasers or any of their respective Affiliates to disclose any attorney-client privileged information to the extent that disclosure thereof might result in the loss of attorney-client privilege. As promptly as practicable practicable, but no later than sixty (60) [***] days after the Closing DateClosing, Purchasers shall Parent will prepare and deliver deliver, or cause to Sellers be prepared and delivered, to Seller a statement (the “Initial Post-Closing Adjustment Statement”) setting forth Parent’s calculation of (i) the Closing Cash, (ii) Closing Working Capital, (ii) the Closing Cash Amount, (iii) the Closing Date IndebtednessUnpaid Transaction Expenses, (iv) the Closing Date Transaction Fees; Indebtedness and (v) the Adjustment Amount, setting forth Purchasers’ calculation of the Final Adjustment Amount as of (the Closing together with reasonable supporting calculations and detail. The Initial “Post-Closing Adjustment Statement”). Following delivery of the Post-Closing Statement and until such time as the Final Amounts are finally determined, Parent shall provide any supporting documentation reasonably requested by Seller in connection with Seller’s review of the Post-Closing Statement, and Seller and its advisors shall be determined in accordance with provided reasonable access to Parent and its advisors to discuss the Accounting MethodologyPost-Closing Statement.
(b) If Sellers disagree in whole or in part Seller disagrees with Parent’s calculation of any of the Initial amounts set forth on the Post-Closing Adjustment Statement, Seller shall notify Purchasers in writing of such disagreement (the “Notice of Disagreement”) may, within thirty (30) [***] days following Sellers’ after receipt of the Initial Post-Closing Adjustment Statement (the “Review Period”)Statement, indicating the specific line items that are in dispute (the “Disputed Items”), describing the basis for deliver a written notice to Parent disagreeing with such objection calculation(s) and providing setting forth Seller’s estimate calculation of such Disputed Items; provided that Sellers amount(s). Any such notice of disagreement shall specify those items or amounts as to which Seller disagrees and Purchasers its alternative calculations with respect to each item set forth on the Post-Closing Statement and Seller shall be deemed to have agreed upon with all other items and amounts that are not Disputed Items, unless contained in the resolution of a Disputed Item affects an undisputed item, in which case such undisputed item shall remain open and be considered a Disputed Item. If no Notice of Disagreement is received by Purchasers prior to the expiration of the Review Period, then the Initial Post-Closing Adjustment Statement Statement, which shall be final, binding and conclusive for all purposes hereunder. If Seller fails to deliver such a written notice within such [***]-day period, Seller shall be deemed to have been accepted by Sellers agreed to the Post-Closing Statement and items and amounts set forth therein, which shall become final thereupon be final, binding and binding upon the Parties in accordance with Section 2.5(e)conclusive for all purposes hereunder.
(c) During If a notice of disagreement is duly delivered pursuant to Section 2.08(b), Seller and Parent shall, during the thirty (30) [***] days (following such delivery, use commercially reasonable efforts to reach agreement on the disputed items or amounts in order to determine, as may be required, the Final Amounts. If, after the expiration of such longer period or any mutually agreed extension thereof, Seller and Parent are unable to reach such agreement on all such items and amounts, they shall promptly thereafter submit the remaining disputed items to an internationally recognized and mutually independent accounting firm as the Parties may shall be mutually agree) immediately following the delivery of a Notice of Disagreement agreed upon in writing by Parent and Seller (the “Resolution PeriodAccounting Referee”)) for resolution. In making such determination, Sellers the Accounting Referee (i) shall consider only those items or amounts in the Post-Closing Statement as to which Seller has disagreed and Purchasers which have not been resolved prior to submission to the Accounting Referee, (ii) shall seek in good faith not be entitled to resolve hold any differences that they may have hearings or take or order the taking of depositions or other testimony under oath, (iii) with respect to Disputed Items. The Parties each matter submitted to it, shall cooperate during not resolve such Resolution Period and Sellers and their Representatives shall have access matter in a manner that is more favorable to Parent than the books and records, working papers, schedules and calculations of the Purchasers and the Transferred Entities used in the preparation of the Initial Post-Closing Adjustment Statement or more favorable to Seller than the notice of disagreement delivered pursuant to Section 2.08(b) and (iv) shall not consider any proposals related to settlement of any disputed items made by any of the parties. The Accounting Referee is not authorized to, and shall not, make any other determination including (i) any determination with respect to any matter included in the Post-Closing Statement or Seller’s notice of disagreement that was not submitted for resolution to the Accounting Referee or (ii) any determination as to compliance by any Company, Seller, Parent, any Merger Sub or either Surviving Corporation with any of its covenants in this Agreement. Neither Parent nor Seller shall make, and Seller shall prevent any Equityholders from making, any communications with the Accounting Referee to which Seller is not a party, in the case of communications by Parent, or Parent is not a party, in the case of communications by Seller or the Equityholders. Any disputes not within the scope of the disputes to be resolved by the Accounting Referee pursuant to this Section 2.08(c) (as well as any disputes about the scope of disputes to be resolved by the Accounting Referee pursuant to this Section 2.08(c)) shall be resolved pursuant to Section 14.07 and, to the extent relevant to any calculation included in the Post-Closing Statement, in accordance with the Notice of Disagreement same principles and methodologies set forth in this Section 2.08(c).
(d) The Accounting Referee shall deliver to Seller and Parent, as promptly as practicable and no later than [***] days after its appointment, a written report setting forth such determination which shall be final and binding upon Seller and Parent absent fraud or manifest error. The dispute resolution by the Accounting Referee under this Section 2.08 shall constitute an expert determination and shall not constitute an arbitration. The fees and expenses of the Disputed ItemsAccounting Referee shall be borne one-half by Parent, on the one hand, and to one-half by Seller, on the personnel involved in the preparation and calculation thereof, during normal business hours, upon reasonable noticeother hand.
Appears in 1 contract
Samples: Agreement and Plan of Merger (Roivant Sciences Ltd.)
Post-Closing Statement. (a) After the Closing Date, Sellers and Purchasers shall cooperate with each other and provide each other with such access to their respective books, records, accountants, audit work papers and relevant employees as they may reasonably request in connection with the matters addressed in this Section 2.5; provided, however, that nothing contained in this Section 2.5 shall require Sellers, Purchasers or any of their respective Affiliates to disclose any attorney-client privileged information to the extent that disclosure thereof might result in the loss of attorney-client privilege. As promptly as reasonably practicable but in no event later than sixty (60) 90 calendar days after the Closing Date, Purchasers the Parent shall prepare and cause the Surviving Corporation to deliver to Sellers the Stockholder Representative a statement balance sheet of the Company as of immediately prior to the Effective Time (the “Initial Closing Date Balance Sheet”) and a statement certified by an officer of the Surviving Corporation in his/her capacity as such (the “Post-Closing Adjustment Statement”) containing the Surviving Corporation’s good faith calculation of each of: (i) Net Working Capital calculated as of immediately prior to the Closing Effective Time and without giving effect to any of the transactions contemplated hereby (the “Final Working Capital”), (ii) the Closing Cash Amount(the “Final Closing Cash”), (iii) the Closing Date Indebtedness (the “Final Closing Indebtedness”), (iv) the Closing Date Transaction Fees; Expenses (the “Final Transaction Expenses”) and (v) the Adjustment Amount, setting forth Purchasers’ calculation of the Adjustment Amount as Total Closing Consideration resulting from each of the foregoing components thereof (the “Final Total Closing together with reasonable supporting calculations and detailConsideration”). The Initial Closing Date Balance Sheet and the Post-Closing Adjustment Statement shall each be determined in accordance with the Applicable Accounting Methodology.
(b) If Sellers disagree in whole or in part with the Initial Post-Closing Adjustment StatementPrinciples and include related supporting schedules, Seller shall notify Purchasers in writing of such disagreement (the “Notice of Disagreement”) within thirty (30) days following Sellers’ receipt of the Initial Post-Closing Adjustment Statement (the “Review Period”), indicating the specific line items that are in dispute (the “Disputed Items”), describing the basis for such objection calculations and providing Seller’s estimate of such Disputed Items; provided that Sellers and Purchasers shall be deemed to have agreed upon all items and amounts that are not Disputed Items, unless the resolution of a Disputed Item affects an undisputed item, in which case such undisputed item shall remain open and be considered a Disputed Itemdocumentation. If no Notice the Parent and the Surviving Corporation fail to deliver notice of Disagreement is received by Purchasers prior to the expiration of the Review Periodany adjustments within such 90 day period, then the Initial Post-Estimated Working Capital, Estimated Closing Adjustment Statement Cash, Estimated Closing Indebtedness and/or Estimated Transaction Expenses, as applicable, shall respectively be deemed for all purposes hereunder to have been accepted by Sellers be the final statement of the Net Working Capital, Closing Cash, Closing Indebtedness and shall become final Transaction Expenses of the Company and binding upon the Parties in accordance with Section 2.5(e).
(c) During Parent and the thirty (30) days (or such longer period as the Parties may mutually agree) immediately following the delivery of a Notice of Disagreement (the “Resolution Period”), Sellers and Purchasers shall seek in good faith to resolve any differences that they may have with respect to Disputed Items. The Parties shall cooperate during such Resolution Period and Sellers and their Representatives Surviving Corporation shall have access no further rights to the books and records, working papers, schedules and calculations of the Purchasers and the Transferred Entities used in the preparation of the Initial Post-Closing Adjustment Statement, the Notice of Disagreement and the determination of the Disputed Items, and to the personnel involved in the preparation and calculation thereof, during normal business hours, upon reasonable noticeobject or require adjustments thereto.
Appears in 1 contract
Post-Closing Statement. (a) After the Closing Date, Sellers and Purchasers shall cooperate with each other and provide each other with such access to their respective books, records, accountants, audit work papers and relevant employees as they may reasonably request in connection with the matters addressed in this Section 2.5; provided, however, that nothing contained in this Section 2.5 shall require Sellers, Purchasers or any of their respective Affiliates to disclose any attorney-client privileged information to the extent that disclosure thereof might result in the loss of attorney-client privilege. As promptly as practicable but no later than Within sixty (60) days after the Closing Date, Purchasers Purchaser shall prepare and deliver to Sellers the Stockholders’ Agent, with a copy to the Stockholders not acting as the Stockholders’ Agent (which shall not be required to constitute notice), a statement (the “Initial Post-Closing Adjustment Statement”) of calculating (i) the Closing Net Working Capital, and (ii) the Closing Cash Debt Amount, (iii) the Closing Date IndebtednessCompany Transaction Expenses, each as determined by Purchaser in good faith. Unless the Stockholders’ Agent delivers the Dispute Notice within sixty (iv60) the Closing Date Transaction Fees; and (v) the Adjustment Amount, setting forth Purchasers’ calculation days after receipt of the Adjustment Amount as of the Closing together with reasonable supporting calculations and detail. The Initial Post-Closing Adjustment Statement, such Post-Closing Statement shall be determined deemed the “Final Closing Statement,” shall be binding upon all parties, and shall not be subject to dispute or review. If the Stockholders’ Agent, acting in accordance good faith, disagrees with the Post-Closing Statement, the Stockholders’ Agent may, within sixty (60) days after receipt thereof, notify the Purchaser in writing (the “Dispute Notice”), which Dispute Notice shall provide reasonable detail of the nature of each disputed item on the Post-Closing Statement. Purchaser shall make available to Stockholders’ Agent and his accountants and other representatives, at reasonable times, upon reasonable notice (and copies thereof at Stockholders’ sole cost and expense) at any time during (A) the review by Stockholders of the Post-Closing Statement and (B) during the pendency of any dispute under this clause (ii) the back-up materials used in preparing the Post-Closing Statement (which may include work papers, but only to the extent Purchaser has the right to disclose such work papers), in both electronic and physical form. The Stockholders and Purchaser shall first use commercially reasonable efforts to resolve such dispute between themselves and, if they are able to resolve such dispute, the Post-Closing Statement shall be revised to the extent necessary to reflect such resolution, shall be deemed the “Final Closing Statement” and shall be conclusive and binding upon all parties and shall not be subject to dispute or review. If the Stockholders’ Agent and Purchaser are unable to resolve the dispute, however, within fifteen (15) days after receipt by the Purchaser of the Dispute Notice, the parties shall submit the dispute to an accounting firm mutually agreeable to Purchaser and the Stockholders’ Agent (the “Accounting Referee”). Purchaser shall make available to the Accounting Referee and its representatives at reasonable times, upon reasonable notice (and copies thereof) the back-up materials used in preparing the Post-Closing Statement, which may include work papers (but only to the extent Purchaser has the right to disclose such work papers). The Stockholders’ Agent and his representatives shall have the right to meet with the Accounting Methodology.
(b) If Sellers disagree Referee to present his position. The Accounting Referee shall act as an expert and not arbiter and shall determine only those items and the amount in whole or in part with dispute on the Initial Post-Closing Adjustment Statement. Promptly, Seller shall notify Purchasers in writing of such disagreement (the “Notice of Disagreement”) within but no later than thirty (30) days following Sellersafter engagement, the Accounting Referee shall deliver a written report to the Stockholders’ receipt Agent and Purchaser as to the resolution of the Initial disputed items and the resulting calculation of the Closing Net Working Capital, Company Transaction Expenses and Debt Amount, provided, however that (X) the Closing Net Working Capital as determined by the Accounting Referee shall be not less than the Closing Net Working Capital as set forth in the Post-Closing Adjustment Statement and not greater than the Closing Net Working Capital as set forth in the Dispute Notice; (Y) the “Review Period”), indicating Company Transaction Expenses as determined by the specific line items that are Accounting Referee shall not be greater than the Company Transaction Expenses as set forth in dispute (the “Disputed Items”), describing the basis for such objection and providing Seller’s estimate of such Disputed Items; provided that Sellers and Purchasers shall be deemed to have agreed upon all items and amounts that are not Disputed Items, unless the resolution of a Disputed Item affects an undisputed item, in which case such undisputed item shall remain open and be considered a Disputed Item. If no Notice of Disagreement is received by Purchasers prior to the expiration of the Review Period, then the Initial Post-Closing Adjustment Statement and not less than the Company Transaction Expenses as set forth in the Dispute Notice and (Z) the Debt Amount as determined by the Accounting Referee shall be deemed to have been accepted by Sellers and shall become final and binding upon not greater than the Parties in accordance with Section 2.5(e).
(c) During the thirty (30) days (or such longer period Debt Amount as the Parties may mutually agree) immediately following the delivery of a Notice of Disagreement (the “Resolution Period”), Sellers and Purchasers shall seek in good faith to resolve any differences that they may have with respect to Disputed Items. The Parties shall cooperate during such Resolution Period and Sellers and their Representatives shall have access to the books and records, working papers, schedules and calculations of the Purchasers and the Transferred Entities used set forth in the preparation of the Initial Post-Closing Adjustment StatementStatement and not less CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, the Notice of Disagreement and the determination of the Disputed ItemsMARKED BY BRACKETS, and to the personnel involved in the preparation and calculation thereofHAS BEEN OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE 406 OF THE SECURITIES ACT OF 1933, during normal business hours, upon reasonable noticeAS AMENDED.
Appears in 1 contract
Post-Closing Statement. Within ninety (a) After the Closing Date, Sellers and Purchasers shall cooperate with each other and provide each other with such access to their respective books, records, accountants, audit work papers and relevant employees as they may reasonably request in connection with the matters addressed in this Section 2.5; provided, however, that nothing contained in this Section 2.5 shall require Sellers, Purchasers or any of their respective Affiliates to disclose any attorney-client privileged information to the extent that disclosure thereof might result in the loss of attorney-client privilege. As promptly as practicable but no later than sixty (6090) days after the Closing DateClosing, Purchasers the GMO Parties shall prepare and deliver to Sellers POS-Minerals a statement (the “Initial Post-Closing Adjustment Statement”) of (i) the Closing Working Capital, (ii) the Closing Cash Amount, (iii) the Closing Date Indebtedness, (iv) the Closing Date Transaction Fees; and (v) the Adjustment Amount, setting forth Purchasers’ in reasonable detail a final calculation of Actual 2007 Expenditures, the Underfunded 2007 Payment Amount based on such final calculation of Actual 2007 Expenditures, the 2008 Pre-Closing Expenditures, a calculation of the Adjustment Amount as Deduction Percentage, and a calculation of the Closing together with reasonable supporting calculations and detailamounts determined by Nevada Moly to be payable by Nevada Moly under Section 2.4(d). The Initial Post-Closing Adjustment Statement shall be determined accompanied by a certificate of the chief financial officer of Nevada Moly to the effect that the information contained in the Post-Closing Statement is fairly presented, in all material respects, in accordance with GAAP and customary industry accounting practices. POS-Minerals and its agents and representatives shall be entitled to reasonable access during normal business hours to the Accounting Methodology.
(b) If Sellers disagree relevant records, personnel and working papers of the GMO Parties and the Company to assist in whole or in part with POS-Minerals’ review of the Initial Post-Closing Adjustment Statement, Seller shall notify Purchasers in writing of such disagreement . Within six (the “Notice of Disagreement”6) within thirty (30) days following Sellersmonths after POS-Minerals’ receipt of the Initial Post-Closing Adjustment Statement (the “Review Objection Period”), indicating POS-Minerals shall deliver to Nevada Moly a written report setting forth in detail any changes or adjustments that POS-Minerals proposes to make to the specific line items Post-Closing Statement and any other objections that are POS-Minerals has to the GMO Parties’ calculation of any item required to be contained in dispute the Post-Closing Statement; provided, that the Objection Period may be extended for an additional period not to exceed six (6) months (for a total period not to exceed one (1) year) with the “Disputed Items”)consent of Nevada Moly, describing such consent not to be unreasonably withheld or delayed. POS-Minerals’ failure to deliver such a written report to Nevada Moly by the basis for such objection expiration of the Objection Period, as it may be extended, shall be deemed an acceptance by POS-Minerals of the Post-Closing Statement as submitted by the GMO Parties, and providing Seller’s estimate of such Disputed Items; provided that Sellers and Purchasers shall be deemed to have agreed upon all items and amounts that are not Disputed Items, unless the resolution of a Disputed Item affects an undisputed item, in which case such undisputed item shall remain open and be considered a Disputed Item. If no Notice of Disagreement is received by Purchasers prior to the expiration established as of the Review Period, then date of such expiration the Initial amounts in such Post-Closing Adjustment Statement shall be deemed to have been accepted by Sellers and shall become final and binding upon the Parties in accordance with Section 2.5(e).
(c) During the thirty (30) days (or such longer period as the Parties may mutually agree) immediately following the delivery of a Notice of Disagreement (the “Resolution Period”), Sellers and Purchasers shall seek in good faith to resolve any differences that they may have with respect to Disputed Items. The Parties shall cooperate during such Resolution Period and Sellers and their Representatives shall have access to the books and records, working papers, schedules and calculations for purposes of the Purchasers and the Transferred Entities used in the preparation second sentence of the Initial Post-Closing Adjustment Statement, the Notice of Disagreement and the determination of the Disputed Items, and to the personnel involved in the preparation and calculation thereof, during normal business hours, upon reasonable notice.Section 2.4(c). CONTRIBUTION AGREEMENT; Page 12
Appears in 1 contract
Post-Closing Statement. (ai) After the Closing Date, Sellers Buyer will cause to be prepared in writing and Purchasers shall cooperate with each other and provide each other with such access to their respective books, records, accountants, audit work papers and relevant employees as they may reasonably request in connection with the matters addressed in this Section 2.5; provided, however, that nothing contained in this Section 2.5 shall require Sellers, Purchasers or any of their respective Affiliates to disclose any attorney-client privileged information delivered to the extent that disclosure thereof might result in the loss of attorney-client privilege. As promptly as practicable but no Sellers not later than sixty (60) 90 days after the Closing Date, Purchasers shall prepare and deliver to Sellers Date a statement (the “Initial Post-Closing Adjustment Statement”) that shall set forth the calculation of the following: (iA) the Purchase Price, (B) the Closing Indebtedness, (C) the Net Working Capital (the “Final Working Capital”), (D) Working Capital Surplus, if any, (E) Working Capital Deficit, if any, and (F) Closing Cash.
(ii) Following the delivery of the Post-Closing Statement to the Sellers, Buyer shall provide the Sellers and their designees reasonable access during normal business hours to books and records and work papers of Seller and its other Affiliates that relate solely to the calculations included in the Post-Closing Statement and the amount of the Closing Indebtedness, the Final Working Capital, (ii) the Working Capital Surplus, if any, Working Capital Deficit, if any, and Closing Cash Amount, Cash.
(iii) the Closing Date Indebtedness, (iv) the Closing Date Transaction Fees; and (v) the Adjustment Amount, setting forth Purchasers’ calculation of the Adjustment Amount as of the Closing together with reasonable supporting calculations and detail. The Initial Post-Closing Adjustment Statement shall will be determined in accordance with final and binding on Buyer and the Accounting Methodology.
(b) If Sellers disagree in whole or in part with unless, within 30 days following delivery of the Initial Post-Closing Adjustment Statement, Seller shall notify Purchasers the Trust notifies Buyer in writing that the Sellers do not accept as correct any one or more of such disagreement the calculations included in the Post-Closing Statement (the a “Notice of Disagreement”) within thirty (30) days following Sellers’ receipt of ); provided, that the Initial Post-Closing Adjustment Statement (and the “Review Period”)resulting Working Capital Surplus, indicating the specific line items that are in dispute (the “Disputed Items”)if any, describing the basis for such objection Working Capital Deficit, if any, Closing Indebtedness, and providing Seller’s estimate of such Disputed Items; provided that Sellers and Purchasers shall be deemed to have agreed upon all items and amounts that are not Disputed Items, unless the resolution of a Disputed Item affects an undisputed item, in which case such undisputed item shall remain open and be considered a Disputed Item. If no Notice of Disagreement is received by Purchasers prior to the expiration of the Review Period, then the Initial Post-Closing Adjustment Statement shall be deemed to have been accepted by Sellers and Cash shall become final and binding upon the Parties in accordance with Section 2.5(e).
(c) During upon the Trust’s delivery, prior to the expiration of the thirty (30) days day period, of written notice to Buyer of its acceptance of the Post-Closing Statement. Any Notice of Disagreement shall specify in reasonable detail the nature and amount of any disagreement so asserted and attach documentation supporting the Sellers’ calculations.
(or such longer period iv) If the Trust timely delivers a Notice of Disagreement, then the Post-Closing Statement (as revised in accordance with this Section 2.06(b)(iv)) and Working Capital Surplus, if any, Working Capital Deficit, if any, Closing Indebtedness and Closing Cash shall become final and binding upon the Parties may mutually agreeon the earlier of (A) immediately the date any and all matters specified in the Notice of Disagreement are finally resolved in writing by the Trust and Buyer and (B) the date any and all matters specified in the Notice of Disagreement not resolved by the Trust and Buyer are finally resolved in writing by the Independent Accounting Firm. The Post-Closing Statement shall be revised to the extent necessary to reflect any resolution by the Trust and Buyer and any final resolution made by the Independent Accounting Firm in accordance with this Section 2.6(b)(iv). During the 30 days following the delivery of a Notice of Disagreement (Disagreement, the “Resolution Period”), Sellers Trust and Purchasers Buyer shall seek try to resolve any such disagreement in good faith to resolve any differences that they may have with respect to Disputed Items. The Parties and on an informal basis and all such discussions related thereto (unless otherwise agreed by Buyer and the Trust) shall cooperate during such Resolution Period and Sellers and their Representatives shall have access to the books and records, working papers, schedules and calculations be governed by Rule 408 of the Purchasers Federal Rules of Evidence and any applicable similar state rule. At the Transferred Entities used end of such 30 day period, the Trust and Buyer shall submit any and all matters (but only such matters) which remain in the preparation of the Initial Post-Closing Adjustment Statement, dispute and which were properly included in the Notice of Disagreement to the Independent Accounting Firm for review and resolution. Buyer and the Trust shall instruct the Independent Accounting Firm to, and the Independent Accounting Firm shall, make a final determination of the items included in the Post-Closing Statement (to the extent such amounts are in dispute) in accordance with the guidelines and procedures set forth in this Agreement. Buyer and the Trust will cooperate with the Independent Accounting Firm during the term of their engagement. Buyer and the Trust shall instruct the Independent Accounting Firm not to, and the Independent Accounting Firm shall not, assign a value to any item in dispute greater than the greatest value for such item assigned by Buyer in the Post-Closing Statement, on the one hand, or the Trust in the Notice of Disagreement, on the other hand, or less than the smallest value for such item assigned by Buyer in the Post-Closing Statement, on the one hand, or the Trust in the Notice of Disagreement, on the other hand. Buyer and the Trust shall also instruct the Independent Accounting Firm to, and the Independent Accounting Firm shall, make its determination based solely on presentations by Buyer and the Trust that are in accordance with the guidelines and procedures set forth in this Agreement (i.e., not on the basis of an independent review). The Post-Closing Statement and Working Capital Surplus, if any, Working Capital Deficit, if any, Closing Indebtedness and Closing Cash shall become final and binding on the Parties on the date the Independent Accounting Firm delivers its final resolution in writing to Buyer and the Trust (which final resolution shall be requested by the parties to be delivered not more than 45 days following submission of such disputed matters), and such resolution by the Independent Accounting Firm shall not be subject to court review or otherwise appealable. The fees and expenses of the Independent Accounting Firm pursuant to this Section 2.06(b)(iv) shall be allocated between Buyer, on the one hand, and the Sellers, on the other hand, in the same proportion that the aggregate amount of the disputed items so submitted to the Independent Accounting Firm that is unsuccessfully disputed by such party (as finally determined by the Independent Accounting Firm) bears to the total amount of such disputed items so submitted.
(v) On the fifth Business Day after the determination of the Disputed Itemsfinal Purchase Price pursuant to this Section 2.06:
(A) if the Pre-Adjustment Purchase Price is less than the final Purchase Price, and Buyer shall pay to the personnel involved Sellers, by wire transfer of immediately available funds to the account(s) specified in writing by the preparation Sellers, an amount equal to such difference; and
(B) if the Pre-Adjustment Purchase Price is greater than the final Purchase Price, the Sellers shall pay to Buyer, by wire transfer of immediately available funds to the account specified in writing by Buyer, an amount equal to such difference; provided, however, that either Buyer or the Trust shall have the right, but not the obligation, to instead cause such payment to be made by the Escrow Agent from the Escrow Account. Any payment request to the Escrow Agent shall be delivered to the Escrow Agent in writing with a copy to each of Buyer and calculation thereof, during normal business hours, upon reasonable noticethe Sellers.
Appears in 1 contract
Samples: Equity Purchase Agreement (Nuverra Environmental Solutions, Inc.)
Post-Closing Statement. (a) After As promptly as practicable and in any event within 90 days after the Closing Date, Sellers and Purchasers shall cooperate with each other Purchaser will prepare and provide each other with such access to their respective booksSeller a written statement (the “Post-Closing Statement”) setting forth:
(a) its determination of the value of the Transferred Inventory as of the close of business on the Closing Date, records, accountants, audit work papers and relevant employees as they may reasonably request in connection with but without regard to the matters addressed in this Section 2.5effects of any transaction occurring outside of the Ordinary Course of Business on the Closing Date (including the Transactions) (the “Inventory Statement”); provided, however, that nothing contained the Purchaser shall conclusively rely on the inventory quantities and values as reported by the relevant management controlling systems of the Seller and/or its Affiliates in this Section 2.5 determining such value of the Transferred Inventory. The Inventory Statement shall require Sellers, Purchasers or any of their respective Affiliates to disclose any attorney-client privileged information be prepared in accordance with the adjustments and methodology set forth on Schedule 3.2.1(a) (the “Inventory Principles”). Purchaser shall provide Seller and its advisors with reasonable access to the extent that disclosure thereof might result work papers used by Purchaser in the loss preparation of attorney-client privilegethe Inventory Statement. As promptly The Inventory Statement shall be prepared as practicable but no later than sixty (60) days after of 11:59 p.m. Eastern Time on the Closing Date, Purchasers shall prepare and deliver but without regard to Sellers a statement (the “Initial Post-Closing Adjustment Statement”) effects of (i) any transaction occurring outside of the Closing Working Capital, (ii) the Closing Cash Amount, (iii) Ordinary Course of Business on the Closing Date Indebtedness, (iv) including the Closing Date Transaction Fees; and (v) the Adjustment Amount, setting forth Purchasers’ calculation of the Adjustment Amount as of the Closing together with reasonable supporting calculations and detail. The Initial Post-Closing Adjustment Statement shall be determined in accordance with the Accounting MethodologyTransactions).
(b) If Sellers disagree in whole or in part with its determination of the Initial Post-value of the Genzyme Denmark Closing Adjustment Statement, Seller shall notify Purchasers in writing of such disagreement Net Working Capital (the “Notice Net Working Capital Statement”); provided, however, that the Purchaser shall conclusively rely on the inventory quantities and values as reported by the relevant management controlling systems of Disagreement”) within thirty (30) days following Sellers’ receipt Genzyme Denmark in determining the value of the Initial Post-inventory included in the determination of the value of the Genzyme Denmark Closing Adjustment Net Working Capital; for the avoidance of doubt, such inventory shall include all inventory (including supplies), wherever located and whether held in direct custody or in transit, used or held for use by Genzyme Denmark primarily in the Business. The Net Working Capital Statement shall be prepared in accordance with the adjustments and methodology set forth on Schedule 3.2.1(b) (the “Review PeriodNet Working Capital Principles”), indicating the specific line items that are in dispute (the “Disputed Items”), describing the basis for such objection . Purchaser shall provide Seller and providing Seller’s estimate of such Disputed Items; provided that Sellers and Purchasers shall be deemed to have agreed upon all items and amounts that are not Disputed Items, unless the resolution of a Disputed Item affects an undisputed item, in which case such undisputed item shall remain open and be considered a Disputed Item. If no Notice of Disagreement is received by Purchasers prior to the expiration of the Review Period, then the Initial Post-Closing Adjustment Statement shall be deemed to have been accepted by Sellers and shall become final and binding upon the Parties in accordance its advisors with Section 2.5(e).
(c) During the thirty (30) days (or such longer period as the Parties may mutually agree) immediately following the delivery of a Notice of Disagreement (the “Resolution Period”), Sellers and Purchasers shall seek in good faith to resolve any differences that they may have with respect to Disputed Items. The Parties shall cooperate during such Resolution Period and Sellers and their Representatives shall have reasonable access to the books and records, working papers, schedules and calculations of the Purchasers and the Transferred Entities work papers used by Purchaser in the preparation of the Initial Post-Closing Adjustment Net Working Capital Statement, the Notice of Disagreement and the determination of the Disputed Items, and to the personnel involved in the preparation and calculation thereof, during normal business hours, upon reasonable notice.
Appears in 1 contract
Post-Closing Statement. (a) After the Closing Date, Sellers and Purchasers shall cooperate with each other and provide each other with such access to their respective books, records, accountants, audit work papers and relevant employees as they may reasonably request in connection with the matters addressed in this Section 2.5; provided, however, that nothing contained in this Section 2.5 shall require Sellers, Purchasers or any of their respective Affiliates to disclose any attorney-client privileged information to the extent that disclosure thereof might result in the loss of attorney-client privilege. As promptly as practicable practicable, but no later than sixty (60) 120 days after the Closing DateClosing, Purchasers shall Purchaser will prepare and deliver deliver, or cause to Sellers be prepared and delivered, to the Equityholders’ Representative a statement (the “Initial Post-Closing Adjustment Statement”) setting forth Purchaser’s calculation of (i) the Closing Working Capital, (ii) the Closing Cash AmountUnpaid Transaction Expenses, (iii) the Closing Date Indebtedness, (iv) the Closing Date Transaction Fees; Cash and (v) the Adjustment Amount, setting forth Purchasers’ calculation of the Final Adjustment Amount as of (the Closing together with reasonable supporting calculations and detail. The Initial “Post-Closing Adjustment Statement Statement”). Following delivery of the Post-Closing Statement, the Equityholders’ Representative and its representatives and agents shall be determined given reasonable access (including electronic access, to the extent available) as they may reasonably require to the books and records of the Surviving Corporation and reasonable access to the personnel or representatives of the Surviving Corporation and Purchaser responsible for and knowledgeable about the preparation of the Post-Closing Statement as they may reasonably require, in accordance with each case for the Accounting Methodologypurpose of reviewing the Post-Closing Statement and resolving any disputes pursuant to this Section 2.10; provided that any such access shall be during normal business hours and without undue interruption to the business of Parent, Purchaser, the Surviving Corporation or any of their respective Affiliates, and, in the case of any work papers, subject to the auditors’ and accountants’ normal disclosure procedures and then only after such Person has signed a customary agreement relating to such access to work papers in form and substance reasonably acceptable to such auditors or accountants.
(b) If Sellers disagree in whole or in part the Equityholders’ Representative disagrees with Purchaser’s calculation of any of the Initial amounts set forth on the Post-Closing Adjustment Statement, Seller shall notify Purchasers in writing of such disagreement (the “Notice of Disagreement”) Equityholders’ Representative may, within thirty (30) 30 days following Sellers’ after receipt of the Initial Post-Closing Adjustment Statement (Statement, deliver a written notice to Purchaser disagreeing with such calculation(s) and setting forth the “Review Period”), indicating the specific line items that are in dispute (the “Disputed Items”), describing the basis for such objection and providing SellerEquityholders’ Representative’s estimate calculation of such Disputed Items; provided that Sellers amount(s). Any such notice of disagreement shall specify those items or amounts as to which the Equityholders’ Representative disagrees, and Purchasers its alternative calculations with respect to each item set forth on the Post-Closing Statement, and the Equityholders’ Representative shall be deemed to have agreed upon with all other items and amounts that are not Disputed Items, unless contained in the resolution of a Disputed Item affects an undisputed item, in which case such undisputed item shall remain open and be considered a Disputed Item. If no Notice of Disagreement is received by Purchasers prior to the expiration of the Review Period, then the Initial Post-Closing Adjustment Statement Statement, which shall be final, binding and conclusive for all purposes hereunder. If the Equityholders’ Representative fails to deliver such a written notice within such 30-day period, the Equityholders’ Representative shall be deemed to have agreed to the Post-Closing Statement and items and amounts set forth therein, which shall be final, binding and conclusive for all purposes hereunder.
(c) If a notice of disagreement is duly delivered pursuant to Section 2.10(b), the Equityholders’ Representative and Purchaser shall, during the 30 days following such delivery, use commercially reasonable efforts to reach agreement on the disputed items or amounts in order to determine, as may be required, the Final Amounts. If, after the expiration of such period or any mutually agreed extension thereof, the Equityholders’ Representative and Purchaser are unable to reach such agreement on all such items and amounts, they shall promptly thereafter submit the remaining disputed items to Deloitte LLP (or, if such firm is unable or unwilling to act, such other independent accounting firm of nationally recognized standing as shall be mutually agreed upon in writing by Purchaser and the Equityholders’ Representative) (the “Accounting Referee”) for resolution. In making such determination, the Accounting Referee (i) shall consider only those items or amounts in the Post-Closing Statement as to which the Equityholders’ Representative has disagreed and which have not been accepted by Sellers resolved prior to submission to the Accounting Referee, (ii) shall not be entitled to hold any hearings or take or order the taking of depositions or other testimony under oath and (iii) with respect to each matter submitted to it, shall not resolve such matter in a manner that is more favorable to Purchaser than the Post-Closing Statement or more favorable to the Equityholders’ Representative than the notice of disagreement. The Accounting Referee is not authorized to, and shall become not, make any other determination including (A) any determination with respect to any matter included in the Post-Closing Statement or the Equityholders’ Representative’s notice of disagreement that was not submitted for resolution to the Accounting Referee or (B) any determination as to compliance by the Company, any Equityholder, Parent, Purchaser, Merger Sub or the Surviving Corporation with any of its covenants in this Agreement. Any disputes not within the scope of the disputes to be resolved by the Accounting Referee pursuant to this Section 2.10(c) (as well as any disputes about the scope of disputes to be resolved by the Accounting Referee pursuant to this Section 2.10(c)) shall be resolved pursuant to Section 12.07.
(d) The Accounting Referee shall deliver to the Equityholders’ Representative and Purchaser, as promptly as practicable and no later than 90 days after its appointment, a written report setting forth such determination which shall be final and binding upon the Parties in accordance with Equityholders’ Representative, the Equityholders and Purchaser absent fraud or manifest error. The dispute resolution by the Accounting Referee under this Section 2.5(e2.10 shall constitute an expert determination and shall not constitute an arbitration. The fees and expenses of the Accounting Referee shall be borne one-half by Purchaser, on the one hand, and one-half by the Equityholders’ Representative (on behalf of the Equityholders), on the other hand.
(ce) During the thirty (30) days (or such longer period as the Parties may mutually agree) immediately following the delivery of a Notice of Disagreement (the “Resolution Period”), Sellers The Equityholders’ Representative and Purchasers shall seek in good faith to resolve any differences Purchaser agree that they may have with respect to Disputed Items. The Parties shall will cooperate during such Resolution Period and Sellers and their Representatives shall have access to the books and records, working papers, schedules and calculations of the Purchasers and the Transferred Entities used assist in the preparation and review of the Initial Post-Closing Adjustment Statement, the Notice of Disagreement Statement and the determination of the Disputed ItemsFinal Amounts, including the making available of books, records, work papers and to the personnel involved in the preparation and calculation thereof, during normal business hours, upon reasonable noticepersonnel.
Appears in 1 contract
Samples: Agreement and Plan of Merger (Communications Sales & Leasing, Inc.)
Post-Closing Statement. (ai) After Not later than the ninetieth (90th) day following the Closing Date, Sellers and Purchasers shall cooperate with each other and provide each other with such access to their respective books, records, accountants, audit work papers and relevant employees as they may reasonably request in connection with the matters addressed in this Section 2.5; provided, however, that nothing contained in this Section 2.5 shall require Sellers, Purchasers or any of their respective Affiliates to disclose any attorney-client privileged information to the extent that disclosure thereof might result in the loss of attorney-client privilege. As promptly as practicable but no later than sixty (60) days after the Closing Date, Purchasers Purchaser shall prepare and deliver to Sellers a written statement (the “Initial Post-Closing Adjustment Statement”) setting forth in reasonable detail Purchaser’s good faith estimate of the final calculation of the Total Adjusted Consideration (iincluding with respect to the components thereof) (calculated in accordance with Section 2.02(c)). If Purchaser fails to timely deliver to Sellers the Post-Closing Statement, then the Pre-Closing Statement shall be deemed to constitute the Post-Closing Statement as of the ninetieth (90th) day following the Closing Working CapitalDate. During the period beginning on the delivery date of the Post-Closing Statement and ending on the last day of the Review Period, Purchaser shall provide to Sellers reasonable access during normal business hours to all relevant records of the Company Group, and shall use commercially reasonable efforts to direct the Joint Venture Entities to xxxxx Xxxxxxx reasonable access during normal business hours to all relevant records of the Joint
(ii) If Sellers deliver an Objection Notice to Purchaser during the Closing Cash AmountReview Period, then Purchaser and Sellers shall undertake to agree on the items subject to an Objection Notice (it being understood that all matters not raised in a timely Objection Notice shall be deemed final and binding for all purposes of this Agreement) and the resulting final Total Adjusted Consideration no later than thirty (30) days after the date on which Sellers delivered such Objection Notice to Purchaser. In the event that Sellers and Purchaser fail to reach agreement within such thirty (30) day period, Sellers and Purchaser shall within ten (10) days following the end of such thirty (30) day period mutually engage and refer the remaining disputed matters to a nationally-recognized independent accounting firm as is mutually agreed in writing by Sellers and Purchaser or, if Purchaser and Sellers fail to agree in writing within such time period, then such other nationally- recognized independent accounting firm appointed by an arbitrator selected by the Houston, Texas office of the American Arbitration Association as requested by Purchaser or Sellers (such firm that agrees to serve hereunder, the “Accounting Firm”).
(iii) Within twenty (20) days following the agreement of the Accounting Firm to serve hereunder, each of Purchaser and Sellers shall deliver to the other and the Accounting Firm (A) the Pre-Closing Date IndebtednessStatement, the Post-Closing Statement, the Objection Notice and such work papers, invoices and other reports and information relating to the disputed matters as the Accounting Firm may request from either Purchaser or Sellers and (B) Purchaser’s or Sellers’, as applicable, proposed resolution of the disputed matters (which proposed resolution shall not seek a greater decrease to the Total Adjusted Consideration than the decrease proposed by Purchaser in the Post-Closing Statement nor a greater increase to the Total Adjusted Consideration than the increase proposed by Sellers in the Objection Notice) and any materials such Person wishes to present to justify the resolution it so presents (the foregoing items (A) and (B) together forming Purchaser’s or Sellers’, as applicable, “Submission”). Purchaser and Sellers shall be afforded the opportunity to discuss the disputed matters and the Submissions with the Accounting Firm, but the Accounting Firm shall not conduct a formal evidentiary hearing. The Accounting Firm shall act as an arbitrator for the limited purpose of determining the specific disputed matters submitted by Sellers and/or Purchaser in their respective Submissions to the Accounting Firm, and whether and to what extent, if any, the Total Adjusted Consideration requires adjustment as a result of the resolution of those disputed matters; provided,
(iv) the Closing Date Transaction Fees; and (v) the Adjustment Amount, setting forth Purchasers’ calculation The Accounting Firm shall make a determination of the Adjustment Amount Total Adjusted Consideration as of the Closing together with reasonable supporting calculations and detail. The Initial Post-Closing Adjustment Statement shall be determined soon as practicable, but in accordance with the Accounting Methodology.
(b) If Sellers disagree in whole or in part with the Initial Post-Closing Adjustment Statement, Seller shall notify Purchasers in writing of such disagreement (the “Notice of Disagreement”) any event within thirty (30) days following Sellers’ after receipt of the Initial Submissions and shall (A) base its determination solely on the Submissions and (B) consider only those items, and the related amounts in Purchaser’s and Sellers’ respective calculations, that were raised in a timely Objection Notice or Post-Closing Adjustment Statement (the “Review Period”), indicating the specific line items that and are in dispute (the “Disputed Items”), describing the basis for such objection and providing Seller’s estimate of such Disputed Items; provided that Sellers and Purchasers shall be deemed to have agreed upon all identified as being items and amounts that are to which Purchaser and Sellers have been unable to agree. Absent manifest arithmetical error, the Accounting Firm’s determination shall be final, conclusive and binding on Purchaser and Sellers, without right of appeal, and shall constitute an arbitral award upon which a judgment may be entered in any court having jurisdiction thereof. The Accounting Firm may not Disputed Itemsaward interest, unless damages or penalties. In determining the resolution of a Disputed Item affects an undisputed item, in which case such undisputed item shall remain open and be considered a Disputed Item. If no Notice of Disagreement is received by Purchasers prior to the expiration proper amount of the Review PeriodTotal Adjusted Consideration, then the Initial Accounting Firm shall not increase the Total Adjusted Consideration more than the increase proposed by Sellers in the Objection Notice nor decrease the Total Adjusted Consideration more than the decrease proposed by Purchaser in the Post-Closing Adjustment Statement Statement, as set forth in their respective Submissions, as applicable.
(v) The fees and expenses of the Accounting Firm shall be deemed to have been accepted by allocated between Sellers and shall become final and binding Purchaser based upon the Parties percentage which the portion of the contested amount not awarded to each party bears to the total amount actually contested between Sellers or Purchaser in the Submissions, and will be settled solely by Purchaser and Sellers in a manner consistent with such principles within ten (10) Business Days after the Accounting Firm has made a determination in accordance with Section 2.5(e2.02(d)(iv). For example, if (A) Purchaser values an item at an amount equal to $1,000, (B) Sellers submit an Objection Notice contesting only $400 of the amount claimed by Purchaser and (C) the Accounting Firm ultimately resolves the dispute by awarding Purchaser $300 of the $400 contested amount, then the costs and expenses of the Accounting Firm will be allocated seventy-five percent (75%) (i.e., $300/$400) to Sellers and twenty-five percent (25%) (i.e., $100/$400) to Purchaser. Purchaser and Sellers will jointly retain the Accounting Firm and each pay fifty percent (50%) of any retainer. During the engagement, the Accounting Firm will xxxx fifty percent (50%) of the total charges to Purchaser and fifty percent (50%) of the total charges to Sellers (with all such costs to be ultimately borne pursuant to the first sentence of this Section 2.02(d)(v)).
(cvi) During The date upon which all adjustments and amounts in the thirty (30) days Post- Closing Statement are agreed to (or such longer period deemed agreed to, including by decision of the Accounting Firm) by Sellers and Purchaser pursuant to this Section 2.02(d) shall be referred to as the Parties may mutually agree) immediately following “Final Settlement Date” and the delivery of a Notice of Disagreement (final aggregate Total Adjusted Consideration as determined accordingly shall be referred to as the “Resolution PeriodFinal Total Adjusted Consideration.”), Sellers and Purchasers shall seek in good faith to resolve any differences that they may have with respect to Disputed Items. The Parties shall cooperate during such Resolution Period and Sellers and their Representatives shall have access to the books and records, working papers, schedules and calculations of the Purchasers and the Transferred Entities used in the preparation of the Initial Post-Closing Adjustment Statement, the Notice of Disagreement and the determination of the Disputed Items, and to the personnel involved in the preparation and calculation thereof, during normal business hours, upon reasonable notice.
Appears in 1 contract
Samples: Equity Purchase and Contribution Agreement (New Fortress Energy Inc.)
Post-Closing Statement. (a) After the Closing Date, Sellers and Purchasers shall cooperate with each other and provide each other with such access to their respective books, records, accountants, audit work papers and relevant employees as they may reasonably request in connection with the matters addressed in this Section 2.5; provided, however, that nothing contained in this Section 2.5 shall require Sellers, Purchasers or any of their respective Affiliates to disclose any attorney-client privileged information to the extent that disclosure thereof might result in the loss of attorney-client privilege. As promptly as practicable practicable, but no later than sixty (60) 60 days after the Closing DateClosing, Purchasers Buyer shall prepare and deliver to Sellers Seller a statement (including reasonably detailed supporting calculations) setting forth Buyer’s calculation of Total Assets (the “Initial Post-Closing Adjustment Statement”) of (i) the Closing Working Capital, (ii) the Closing Cash Amount, (iii) the Closing Date Indebtedness, (iv) the Closing Date Transaction Fees; and (v) the Adjustment Amount, setting forth Purchasers’ calculation of the Adjustment Amount as of the Closing together with reasonable supporting calculations and detail. The Initial Post-Closing Adjustment Statement shall be determined in accordance with the Accounting Methodology).
(b) If Sellers disagree Seller disagrees with Buyer’s calculation of Total Assets set forth in whole or in part with the Initial Post-Closing Adjustment Statement, Seller shall notify Purchasers in writing may, within 30 days after receipt of the Post-Closing Statement (including reasonably detailed supporting calculations), deliver a written notice to Buyer disagreeing with such calculation and setting forth Seller’s calculation of such disagreement amount (the “Notice of Disagreement”) within thirty (30) days following Sellers’ receipt of the Initial Post-Closing Adjustment Statement (the “Review PeriodObjection”). The Post-Closing Statement Objection shall specify those items or amounts as to which Seller disagrees, indicating the specific line items that are in dispute (the “Disputed Items”), describing the basis for such objection and providing Seller’s estimate of such Disputed Items; provided that Sellers and Purchasers Seller shall be deemed to have agreed upon with all other items and amounts that are not Disputed Items, unless contained in the resolution of a Disputed Item affects an undisputed item, in which case such undisputed item shall remain open and be considered a Disputed ItemPost- Closing Statement. If no Notice Seller fails to deliver such a written notice within such 30 day period, Buyer’s calculation of Disagreement is received by Purchasers prior to Total Assets set forth in the expiration of the Review Period, then the Initial Post-Closing Adjustment Statement shall be deemed to have been accepted by Sellers and shall become final and binding upon the Parties in accordance with Section 2.5(e)parties.
(c) During If the thirty (30) days (or such longer period as the Parties may mutually agree) immediately following the delivery of a Notice of Disagreement (the “Resolution Period”Post-Closing Statement Objection shall be duly delivered pursuant to Section 2.09(b), Sellers Seller and Purchasers Buyer shall, during the 30 days following such delivery, use reasonable efforts to reach agreement on the disputed items or amounts in order to determine the amount of Total Assets. If, during such period or any mutually agreed extension thereof, Seller and Buyer are unable to reach such agreement, they shall seek promptly thereafter cause an Accounting Referee to review this Section 2.09, the definitions of Total Assets and the disputed items or amounts for the purpose of calculating Total Assets. In making such calculation, the Accounting Referee shall consider only those items or amounts in good faith Buyer’s calculation of Total Assets as to resolve any differences which Seller has disagreed. In no event shall the Accounting Referee assign a value to Total Assets that they may have with respect to Disputed Itemsis less than Buyer’s calculation set forth on the Post-Closing Statement or greater than Seller’s calculation set forth in the Post-Closing Statement Objection. The Parties Accounting Referee shall cooperate during deliver to Seller and Buyer, as promptly as practicable, a report setting forth such Resolution Period calculation. Such report shall be final and Sellers binding upon Seller and their Representatives Buyer.
(d) If the Final Total Assets as determined by the Accounting Referee is closer in amount to Buyer’s calculation of Total Assets as set forth on the Post-Closing Statement than to Seller’s calculation of Total Assets as set forth on the Post-Closing Statement Objection, then Seller shall have access pay all fees and expenses of the Accounting Referee in connection with the services provided pursuant to Section 2.09(c). If the Final Total Assets as determined by the Accounting Referee is closer in amount to Seller’s calculation of Total Assets as set forth on the Post-Closing Statement Objection than to Buyer’s calculation of Total Assets as set forth on the Post-Closing Statement, then Buyer shall pay all fees and expenses of the Accounting Referee in connection with the services provided pursuant to Section 2.09(c). If the difference between Total Assets as determined by the Accounting Referee and Buyer’s calculation of Total Assets as set forth on the Post- Closing Statement is equal to the books difference between Total Assets as determined by the Accounting Referee and recordsSeller’s calculation of Total Assets as set forth on the Post- Closing Statement Objection, working papers, schedules then all fees and calculations expenses of the Purchasers Accounting Referee provided pursuant to Section 2.09(c) shall be borne one-half by Buyer and the Transferred Entities used one-half by Seller.
(e) Buyer and Seller shall reasonably cooperate with one another in the preparation of the Initial Post-Closing Adjustment StatementStatement and Post-Closing Statement Objection, as applicable, including by providing the Notice of Disagreement other party and the determination of the Disputed Items, and to the personnel involved in the preparation and calculation thereof, its representatives with reasonable access during normal business hourshours to such party’s books, upon reasonable noticerecords (including work papers, schedules, memoranda and other documents), facilities and employees.
Appears in 1 contract
Post-Closing Statement. Promptly following the Closing, but in no ---------------------- event more than twenty (20) business days thereafter, the Parent shall deliver to the Buyer and the Company a balance sheet of the Company as of the Closing Date and statements of shareholders' equity for the period then ended (collectively, the "Closing Financial Statements"). As soon as reasonably ---------------------------- practicable thereafter, the Buyer shall cause its auditors to audit the Closing Financial Statements. Within 75 days of delivery of the Closing Financial Statements by the Parent to the Buyer and the Company, the Company shall deliver to the Parent and the Buyer a certificate (the "Closing Statement") attaching: -----------------
(a) After the audited Closing Financial Statements; (b) a statement of the Net Working Capital and Other Adjustment Items as of the Closing Date; (c) a calculation of the Aggregate Price (including Indebtedness of the Company) and (d) a calculation of the amount of the Post Closing Adjustment (as defined in Section 1.6.2), if any, required pursuant to the provisions of Section 1.6.2 (the "Post ---- Closing Adjustment Calculation"). The calculation of the Post-Closing Adjustment ------------------------------ shall not take into account rate variance and retention receivables. The Parent and the Buyer shall cooperate with the Company or the Company's auditors, as reasonably requested by the Company, in the Company's efforts to produce the Closing Statements and to conduct an audit of the Company as of the Closing Date, Sellers and Purchasers shall cooperate with each other and provide each other with such access to their respective booksincluding, recordsbut not limited to, accountants, audit work papers and relevant employees as they may reasonably request in connection with the matters addressed in this Section 2.5; provided, however, that nothing contained in this Section 2.5 shall require Sellers, Purchasers or any of their respective Affiliates to disclose any attorney-client privileged information making available to the extent that disclosure thereof might result in Company or the loss of attorney-client privilege. As promptly as practicable but no later than sixty (60) days after Company's auditors information, records or documents relating to the Company for periods prior to the Closing Date, Purchasers shall prepare . The Closing Statement and deliver to Sellers a statement (the “Initial Post-Closing Adjustment Statement”) of (i) the Closing Working Capital, (ii) the Closing Cash Amount, (iii) the Closing Date Indebtedness, (iv) the Closing Date Transaction Fees; and (v) the Adjustment Amount, setting forth Purchasers’ calculation of the Adjustment Amount as of the Closing together with reasonable supporting calculations and detail. The Initial Post-Closing Adjustment Statement Calculation shall be determined prepared by the Company in good faith and in accordance with the Accounting Methodologyterms of this Agreement and GAAP, consistently applied.
(b) If Sellers disagree in whole or in part with the Initial Post-Closing Adjustment Statement, Seller shall notify Purchasers in writing of such disagreement (the “Notice of Disagreement”) within thirty (30) days following Sellers’ receipt of the Initial Post-Closing Adjustment Statement (the “Review Period”), indicating the specific line items that are in dispute (the “Disputed Items”), describing the basis for such objection and providing Seller’s estimate of such Disputed Items; provided that Sellers and Purchasers shall be deemed to have agreed upon all items and amounts that are not Disputed Items, unless the resolution of a Disputed Item affects an undisputed item, in which case such undisputed item shall remain open and be considered a Disputed Item. If no Notice of Disagreement is received by Purchasers prior to the expiration of the Review Period, then the Initial Post-Closing Adjustment Statement shall be deemed to have been accepted by Sellers and shall become final and binding upon the Parties in accordance with Section 2.5(e).
(c) During the thirty (30) days (or such longer period as the Parties may mutually agree) immediately following the delivery of a Notice of Disagreement (the “Resolution Period”), Sellers and Purchasers shall seek in good faith to resolve any differences that they may have with respect to Disputed Items. The Parties shall cooperate during such Resolution Period and Sellers and their Representatives shall have access to the books and records, working papers, schedules and calculations of the Purchasers and the Transferred Entities used in the preparation of the Initial Post-Closing Adjustment Statement, the Notice of Disagreement and the determination of the Disputed Items, and to the personnel involved in the preparation and calculation thereof, during normal business hours, upon reasonable notice.
Appears in 1 contract
Samples: Recapitalization Agreement (Icf Kaiser International Inc)
Post-Closing Statement. (a) After the Closing Date, Sellers and Purchasers shall cooperate with each other and provide each other with such access to their respective books, records, accountants, audit work papers and relevant employees as they may reasonably request in connection with the matters addressed in this Section 2.5; provided, however, that nothing contained in this Section 2.5 shall require Sellers, Purchasers or any of their respective Affiliates to disclose any attorney-client privileged information to the extent that disclosure thereof might result in the loss of attorney-client privilege. As promptly as practicable but no No later than sixty (60) 45 days after the Closing DateCompany receives its Final Embargoed CMS Report for the calendar year 2021, Purchasers shall Parent will prepare and deliver deliver, or cause to Sellers be prepared and delivered, to the Equityholders’ Representative a statement setting forth Parent’s calculation of (1) Closing Cash, (2) Closing Indebtedness, (3) Closing Net Working Capital Adjustment and (4) Unpaid Transaction Expenses and, based on such amounts, Parent’s calculation of the Merger Consideration, the Merger Shares and the Cash Merger Consideration (the “Initial Post-Closing Adjustment Statement”) of (i) ). In the Closing Working Capital, (ii) event Parent fails to timely deliver to the Closing Cash Amount, (iii) Equityholders’ Representative the Closing Date Indebtedness, (iv) the Closing Date Transaction Fees; and (v) the Adjustment Amount, setting forth Purchasers’ calculation of the Adjustment Amount as of the Closing together with reasonable supporting calculations and detail. The Initial Post-Closing Adjustment Statement contemplated by the preceding sentence the Estimate Statement shall be determined deemed the Post- Closing Statement and the dispute resolution procedure set forth in accordance with the Accounting Methodologyremainder of this Section 2.09 shall apply, mutatis mutandis.
(b) If Sellers disagree in whole or in part the Equityholders’ Representative disagrees with Parent’s calculation of any of the Initial amounts set forth on the Post-Closing Adjustment Statement, Seller shall notify Purchasers in writing of such disagreement (the “Notice of Disagreement”) Equityholders’ Representative may, within thirty (30) 30 days following Sellers’ after receipt of the Initial Post-Closing Adjustment Statement (Statement, deliver a written notice to Parent disagreeing with such calculation(s) and setting forth the “Review Period”), indicating the specific line items that are in dispute (the “Disputed Items”), describing the basis for such objection and providing SellerEquityholders’ Representative’s estimate calculation of such Disputed Items; provided that Sellers amount(s). Any such notice of disagreement shall specify those items or amounts as to which the Equityholders’ Representative disagrees and Purchasers its alternative calculations with respect to each item set forth on the Post-Closing Statement, and the Equityholders’ Representative shall be deemed to have agreed upon all other items and amounts that are not Disputed Items, unless contained in the resolution of a Disputed Item affects an undisputed item, in which case such undisputed item shall remain open and be considered a Disputed Item. If no Notice of Disagreement is received by Purchasers prior to the expiration of the Review Period, then the Initial Post-Closing Adjustment Statement Statement, which shall be final, binding and conclusive for all purposes hereunder. If the Equityholders’ Representative fails to deliver such a written notice within such 30-day period, the Equityholders’ Representative shall be deemed to have agreed to the Post-Closing Statement and items and amounts set forth therein, which shall be final, binding and conclusive for all purposes hereunder.
(c) If a notice of disagreement is duly delivered pursuant to Section 2.09(b), the Equityholders’ Representative and Parent shall, during the 45 days following such delivery, use commercially reasonable efforts to reach agreement on the disputed items or amounts in order to determine, as may be required, the Final Amounts. If, after the expiration of such period or any mutually agreed extension thereof, the Equityholders’ Representative and Parent are unable to reach such agreement on all such items and amounts, they shall promptly thereafter submit the remaining disputed items to an independent accounting firm of nationally recognized standing as shall be mutually agreed upon in writing by Parent and the Equityholders’ Representative) (the “Accounting Referee”) for resolution. In making such determination, the Accounting Referee shall consider only those items or amounts in the Post-Closing Statement as to which the Equityholders’ Representative has disagreed and which have not been accepted by Sellers resolved prior to submission to the Accounting Referee, shall not be entitled to hold any hearings or take or order the taking of depositions or other testimony under oath and with respect to each matter submitted to it, shall not resolve such matter in a manner that is more favorable to Parent than the Post-Closing Statement or more favorable to the Equityholders’ Representative than the notice of disagreement delivered pursuant to Section 2.09(b) and shall become not consider any proposals related to settlement of any disputed items made by any of the parties. The Accounting Referee is not authorized to, and shall not, make any other determination including any determination with respect to any matter included in the Post-Closing Statement or the Equityholders’ Representative’s notice of disagreement that was not submitted for resolution to the Accounting Referee or any determination as to compliance by the Company, any Equityholder, Parent, Merger Sub or the Surviving Company with any of its covenants in this Agreement. With respect to this transaction, neither Parent nor the Equityholders’ Representative shall make, and the Equityholders’ Representative shall prevent any Equityholders from making, any communications with the Accounting Referee to which the Equityholders’ Representative is not a party, in the case of communications by Parent, or Parent is not a party, in the case of communications by the Equityholders’ Representative or the Equityholders. Any disputes not within the scope of the disputes to be resolved by the Accounting Referee pursuant to this Section 2.09(c) (as well as any disputes about the scope of disputes to be resolved by the Accounting Referee pursuant to this Section 2.09(c)) shall be resolved pursuant to Section 12.07.
(d) The Accounting Referee shall deliver to the Equityholders’ Representative and Parent, as promptly as practicable and no later than 60 days after its appointment, a written report setting forth such determination which shall be final and binding upon the Parties Equityholders’ Representative, the Equityholders and Parent, absent fraud or manifest error. The dispute resolution by the Accounting Referee under this Section 2.09 shall constitute an expert determination and shall not constitute an arbitration. The fees and expenses of the Accounting Referee shall initially be allocated one-half to Parent and one-half to the Equityholders’ Representative (on behalf of the Equityholders); provided, that such fees, costs and expenses of the Accounting Referee shall ultimately be allocated to Parent, on the one hand, and the Equityholders’ Representative, on the other hand, in accordance with the same proportion that the aggregate amount of the disputed item so submitted to the Accounting Referee that is successfully disputed by such party (as finally determined by the Accounting Referee) bears to the total amount of the disputed items submitted. For example, if the Equityholders’ Representative submits an adjustment of $1,000 for a specific item in the notice of disagreement, and if Parent contests only $500 of the amount claimed by the Equityholders’ Representative, and if the Accounting Referee ultimately resolves the dispute by awarding the Equityholders’ Representative $300 of the $500 contested, then the fees, costs and expenses of the Accounting Referee will be allocated 60% (i.e., 300/500) to Parent and 40% (i.e., 200/500) to the Equityholders’ Representative. Except as provided in this Section 2.5(e).
(c) During the thirty (30) days (or such longer period as the Parties may mutually agree) immediately following the delivery of a Notice of Disagreement (the “Resolution Period”2.09(d), Sellers all other costs and Purchasers expenses incurred by the parties in connection with resolving any dispute hereunder before the Accounting Referee shall seek in good faith to resolve any differences that they may have with respect to Disputed Itemsbe borne by the party incurring such costs and expense. The Parties process set forth in this Section 2.09(d) shall cooperate during such Resolution Period and Sellers and their Representatives shall have access to be the books and records, working papers, schedules and calculations exclusive remedy of the Purchasers and parties for any disputes related to items reflected on the Transferred Entities used in the preparation of the Initial Post-Closing Adjustment Statement, Statement or included in the Notice of Disagreement and the determination calculation of the Disputed Items, and to the personnel involved in the preparation and calculation thereof, during normal business hours, upon reasonable noticeClosing Net Working Capital Adjustment.
Appears in 1 contract
Samples: Agreement and Plan of Merger (Signify Health, Inc.)
Post-Closing Statement. (a) After the Closing Date, Sellers and Purchasers shall cooperate with each other and provide each other with such access to their respective books, records, accountants, audit work papers and relevant employees as they may reasonably request in connection with the matters addressed in this Section 2.5; provided, however, that nothing contained in this Section 2.5 shall require Sellers, Purchasers or any of their respective Affiliates to disclose any attorney-client privileged information to the extent that disclosure thereof might result in the loss of attorney-client privilege. As promptly as practicable but no later than sixty (60) Within 120 days after the Closing Balance Sheet Date, Purchasers shall prepare the Buyer will cause to be prepared and deliver delivered to Sellers the Company a statement (the “Initial Post-Closing Adjustment Statement”), together with any relevant supporting materials, which will include a supporting trial balance (which, for the avoidance of doubt, will not be prepared pursuant to the Accounting Methods)), setting forth the Buyer’s calculation of (A) the Closing Working Capital as derived therefrom (“Final Working Capital”), (B) the combined amount of Cash of the Divested Companies and any other Cash which otherwise constitutes Sold Assets as of close of business on the Closing Balance Sheet Date (the “Final Cash”), (C) the combined amount of Debt Obligations of the Divested Companies and any other Debt Obligations which otherwise constitute Assumed Liabilities actually existing as of close of business on the Closing Balance Sheet Date (the “Final Indebtedness”), (D) the combined amount of unpaid Transaction Expenses (the “Final Transaction Expenses”), (E) the 5 Unspent Capital Expenditure Amount (the “Final Unspent Capital Expenditure Amount”), (F) the Cap Gemini Excess Amount, (G) the Esfel Amount, (H) the Separation Delay Amount, (I) the Earn-Out Amount, (J) the Debt Swap Amount and (K) the Purchase Price calculated as the Initial Value as adjusted as provided below to give effect to the Final Working Capital, the Final Cash, the Final Indebtedness, the Final Transaction Expenses, the Final Unspent Capital Expenditure Amount, the Cap Gemini Excess Amount, the Esfel Amount, the Separation Delay Amount, the Earn-Out Amount and the Debt Swap Amount. The Post-Closing Statement will be prepared in accordance with the Accounting Methods and presented in the form attached hereto as Exhibit G. During such 120-day period, the Company will, at the request of the Buyer, on reasonable prior notice from the Buyer and during normal business hours, afford the Buyer reasonable access to the books, records and personnel with respect to the Business and otherwise retained by the Company or its Affiliates (to the extent relevant to the determination of the Final Working Capital, the Final Cash, the Final Indebtedness, the Final Transaction Expenses and the Final Unspent Capital Expenditures Amount) and otherwise reasonably cooperate with the Buyer in connection with its preparation of the Post-Closing Statement. The Company will assist, and will procure that its Affiliates assist, and cooperate with the Buyer in the preparation of the Post-Closing Statement. If the Final Working Capital (as set forth in the Post-Closing Statement) is less than the Target Working Capital, then the Initial Value will be adjusted downward by an amount equal to the amount of the deficiency between the Target Working Capital and the Final Working Capital. If the Final Working Capital (as set forth in the Post-Closing Statement) is greater than the Target Working Capital, then the Initial Value will be adjusted upward by an amount equal to the amount of the excess between the Final Working Capital and the Target Working Capital. If the Final Working Capital is equal to the Target Working Capital, then no adjustment will be made to the Initial Value with respect to the Final Working Capital. In addition, the Initial Value will be adjusted upward by the amount of any Final Cash and any Earn- Out Amount, and adjusted downward by the amount of any Final Indebtedness, any Final Transaction Expenses, any Final Unspent Capital Expenditure Amount, the Cap Gemini Excess Amount, the Esfel Amount, the Separation Delay Amount and the Debt Swap Amount; provided that:
a) if, immediately prior to the close of business on the Closing Date, the aggregate amount of Cash in the Divested Companies (which is eligible to be treated as Cash for the purposes of this Agreement pursuant to Schedule 2.15) (the “Closing Date Cash”) is less than US$8,200,000, any Cash received by the Divested Companies in the period commencing after the close of business on the Closing Date and ending on close of business on the Closing Balance Sheet Date (the “Interim Period”) shall be taken into account in the determination of the Final Cash; or
b) if the Closing Date Cash is greater than US$8,200,000, an amount equal to the Closing Date Cash less US$8,200,000 (the “Cash Surplus Amount”) shall be deducted from the aggregate amount of Cash in the Divested Companies as at close of business on the Closing Balance Sheet Date for the purposes of determining the Final Cash.
1. 7Amendment to Schedule 2.8. Schedule 2.8, which sets forth the allocation of the Total Consideration and was amended as part of the First Amendment, is hereby deleted in its entirety and replaced with the Schedule attached to this Amendment as Annex B.
1. 8Amendment to Section 2.10(b)(i). Section 2.10(b)(i) is hereby deleted in its entirety and replaced with the following:
(i) the Closing Working CapitalPurchase Price by (x) wire transfer of immediately available funds in U.S. dollars (or the currency of a foreign country if payment in U.S. dollars is not permitted by Law in a foreign country where a Seller is located as set forth in the applicable Local Purchase Agreement) to an account designated by the Company, (ii) an amount equal to the Closing Cash Amount, Purchase Price (iiias adjusted pursuant to Section 2.6(a) less the Closing Date Indebtedness, (iv) principal amount of the Closing Date Transaction FeesVendor Loan Note; and (vy) the Adjustment Amount, setting forth Purchasers’ calculation issue of the Adjustment Amount as of the Closing together with reasonable supporting calculations and detailVendor Loan Note;
1. 9Amendment to Section 5.5(b). The Initial Post-references to the “Closing Adjustment Statement Date” in Section 5.5(b) shall hereby be determined in accordance replaced with references to the Accounting Methodology“Closing Balance Sheet Date”.
(b) If Sellers disagree in whole or in part with the Initial Post-Closing Adjustment Statement, Seller shall notify Purchasers in writing of such disagreement (the “Notice of Disagreement”) within thirty (30) days following Sellers’ receipt of the Initial Post-Closing Adjustment Statement (the “Review Period”), indicating the specific line items that are in dispute (the “Disputed Items”), describing the basis for such objection and providing Seller’s estimate of such Disputed Items; provided that Sellers and Purchasers shall be deemed 1. 10Amendment to have agreed upon all items and amounts that are not Disputed Items, unless the resolution of a Disputed Item affects an undisputed item, in which case such undisputed item shall remain open and be considered a Disputed Item. If no Notice of Disagreement is received by Purchasers prior to the expiration of the Review Period, then the Initial Post-Closing Adjustment Statement shall be deemed to have been accepted by Sellers and shall become final and binding upon the Parties in accordance with Section 2.5(e).
(c) During the thirty (30) days (or such longer period as the Parties may mutually agree) immediately following the delivery of a Notice of Disagreement (the “Resolution Period”), Sellers and Purchasers shall seek in good faith to resolve any differences that they may have with respect to Disputed Items. The Parties shall cooperate during such Resolution Period and Sellers and their Representatives shall have access to the books and records, working papers, schedules and calculations of the Purchasers and the Transferred Entities used in the preparation of the Initial Post-Closing Adjustment Statement, the Notice of Disagreement and the determination of the Disputed Items, and to the personnel involved in the preparation and calculation thereof, during normal business hours, upon reasonable notice.5.9
Appears in 1 contract
