Preparation of Closing Date Balance Sheet. (a) Within forty-five (45) days after the Closing Date, the Purchaser will deliver to the Seller a draft consolidated balance sheet (the "Draft Closing Date Balance Sheet") for the Company as of the close of business on the Closing Date (determined on a pro forma basis as though the parties had not consummated the Transactions) and prepared in accordance with the Agreed Upon Procedures. (b) If, within forty-five (45) days following its receipt of the Draft Closing Date Balance Sheet, the Seller does not dispute the Draft Closing Date Balance Sheet, such balance sheet shall be deemed to be the consolidated balance sheet of the Company on the Closing Date (the "Closing Date Balance Sheet"). (c) If the Seller has any objections to the Draft Closing Date Balance Sheet, it will deliver a detailed statement in writing describing its objections to the Purchaser within forty-five (45) days after receiving the Draft Closing Date Balance Sheet. Purchaser and Seller will use commercially reasonable efforts to resolve any such objections themselves. If Purchaser and Seller achieve a final resolution of the Seller's objections to the Draft Closing Date Balance Sheet within thirty (30) days after the Purchaser's receipt of the Seller's written statement of such objections, such resolution shall be set forth in writing and such Draft Closing Date Balance Sheet, together with any revisions thereto agreed upon by and between the Purchaser and the Seller pursuant to this Section 2.06(c), shall be deemed to be the Closing Date Balance Sheet. The Purchaser and the Seller shall be entitled to prepay any amounts not in dispute or as to which the parties achieve final resolution (such amounts actually paid "Prepayments") plus interest at the Applicable Rate between the Closing Date and the date of such Prepayment. Any party making a Prepayment shall provide two (2) Business Days advanced written notice thereof to the other party. (d) If the Purchaser and the Seller do not achieve a final resolution of the Seller's objections to the Draft Closing Date Balance Sheet within thirty (30) days after the Purchaser's receipt of the Seller's written statement of such objections, the parties will jointly engage an Independent Accountant to resolve any disputes remaining between the parties. The Purchaser and the Seller shall instruct the Independent Accountant to deliver its written determination to the Purchaser and the Seller no later than the thirtieth (30th) day after such dispute was referred to it. The Independent Accountant shall act to determine, based solely on the provisions of this Section 2.06, related definitions contained herein and the presentations by the Seller and the Purchaser, and not by independent review, only those issues still in dispute and only as to whether such amounts (i) were arrived at in conformity with the Agreed Upon Procedures, (ii) were arrived at in conformity with the terms of this Agreement or (iii) contain arithmetic error. The determination of the Independent Accountant (i) will be set forth in writing, (ii) for any item in dispute shall not be in excess of, nor less than, the greatest or lowest value, respectively, claimed by either party for that particular item, (iii) will state that the Draft Closing Date Balance Sheet has been prepared in accordance with the Agreed Upon Procedures and in conformity with this Agreement and (iv) will be conclusive and binding upon the parties. The Purchaser will revise the Draft Closing Date Balance Sheet to reflect the resolution of any objections thereto pursuant to this Section 2.06(d), whereupon such Draft Closing Date Balance Sheet, together with any revisions thereto pursuant to this Section 2.06(d), shall be deemed to be the Closing Date Balance Sheet. (e) In the event the parties submit any unresolved objections to the Independent Accountant for resolution as provided in Section 2.06(d) above, the Independent Accountant shall resolve each of such objections in favor of either the Purchaser or the Seller, and the Purchaser and Seller will share responsibility for the fees and expenses of the Independent Accountant as follows: (i) if the Independent Accountant resolves all the remaining objections in favor of the Purchaser (the "Low Value"), the Seller will be responsible for all of the fees and expenses of the Independent Accountant; (ii) if the Independent Accountant resolves all the remaining objections in favor of the Seller (the "High Value"), the Purchaser will be responsible for all of the fees and expenses of the Independent Accountant; and (iii) if the Independent Accountant resolves some of the remaining objections in favor of the Purchaser and the rest of the remaining objections in favor of the Seller (the "Actual Value"), the Seller will be responsible for that fraction of the fees and expenses of the Independent Accountant equal to (x) the difference between the High Value and the Actual Value over (y) the difference between the High Value and the Low Value, and the Purchaser will be responsible for the remainder of the fees and expenses. (f) The Purchaser will make the work papers and back-up materials and all other data used in preparing the Draft Closing Date Balance Sheet, and the books, records and financial statements of the Company and its Subsidiaries, available to Seller and its accountants and other representatives during normal business hours upon reasonable notice at any time during (i) the preparation by Purchaser of the Draft Closing Date Balance Sheet, (ii) the review by the Seller of the Draft Closing Date Balance Sheet and (iii) the resolution by the parties of any objections thereto. Similarly, the Seller will make the work papers and back-up materials and all other data used in connection with its objections to the Draft Closing Date Balance Sheet available to Purchaser and its accountants and other representatives during normal business hours upon reasonable notice at any time during (i) the review by the Purchaser of the written objection to the Draft Closing Date Balance Sheet and (ii) the resolution by the parties of such objection.
Appears in 2 contracts
Samples: Stock Purchase Agreement (Triad Financial Corp), Stock Purchase Agreement (Triad Financial Corp)
Preparation of Closing Date Balance Sheet. (a) Within forty-five (45) 180 ----------------------------------------- days after the Closing Date, the Purchaser Purchaser, at its sole cost and expense, will prepare and deliver to the Seller Sellers a draft consolidated balance sheet with respect to the Sellers (the "Draft Closing Date Balance SheetDRAFT BALANCE SHEET") for the Company as of the close start of business on the Closing Date Date, and a written calculation of the net assets of Sellers therefrom (determined on a pro forma basis as though the parties had not consummated "CALCULATION"). Purchaser will prepare the Transactions) and prepared Draft Balance Sheet in accordance with GAAP, with the Agreed Upon Proceduresexceptions noted in SECTION 1.8(C)(III).
(b) If, within forty-five Sellers shall have thirty (45) days following its receipt of the Draft Closing Date Balance Sheet, the Seller does not dispute the Draft Closing Date Balance Sheet, such balance sheet shall be deemed to be the consolidated balance sheet of the Company on the Closing Date (the "Closing Date Balance Sheet").
(c) If the Seller has any objections to the Draft Closing Date Balance Sheet, it will deliver a detailed statement in writing describing its objections to the Purchaser within forty-five (4530) days after receiving the Draft Closing Date Balance SheetSheet and the Calculation in which to deliver written notice of objection thereto to Purchaser. Purchaser Failure to object in writing within such thirty (30) day period shall constitute Sellers' final and Seller will use commercially reasonable efforts to resolve any such objections themselvesbinding acceptance of the Draft Balance Sheet and the Calculation. If Purchaser and Seller achieve a final resolution of the Seller's objections to Sellers cannot agree upon the Draft Closing Date Balance Sheet and the Calculation within thirty (30) days after Purchaser receives Sellers' written notice of objection, if any, they shall retain the Purchaser's receipt accounting firm of Deloitte & Touche LLP to resolve the Seller's written statement remaining issues. Sellers and Purchaser shall each pay 50% of such objections, such resolution shall be set forth in writing accounting firm's fees and such Draft Closing Date Balance Sheet, together with any revisions thereto agreed upon by and between the Purchaser and the Seller pursuant to this Section 2.06(c), shall be deemed to be the Closing Date Balance Sheet. The Purchaser and the Seller shall be entitled to prepay any amounts not in dispute or as to which the parties achieve final resolution (such amounts actually paid "Prepayments") plus interest at the Applicable Rate between the Closing Date and the date of such Prepayment. Any party making a Prepayment shall provide two (2) Business Days advanced written notice thereof to the other partyexpenses.
(dc) If the Purchaser and the Seller do not achieve a final resolution of the Seller's objections to the Draft Closing Date Balance Sheet within thirty (30) days after the Purchaser's receipt of the Seller's written statement of such objections, the parties will jointly engage an Independent Accountant to resolve any disputes remaining between the parties. The Purchaser and the Seller shall instruct the Independent Accountant to deliver its written determination to the Purchaser and the Seller no later than the thirtieth (30th) day after such dispute was referred to it. The Independent Accountant shall act to determine, based solely on the provisions of this Section 2.06, related definitions contained herein and the presentations by the Seller and the Purchaser, and not by independent review, only those issues still in dispute and only as to whether such amounts (i) were arrived at in conformity with the Agreed Upon Procedures, (ii) were arrived at in conformity with the terms of this Agreement or (iii) contain arithmetic error. The determination of the Independent Accountant (i) will be set forth in writing, (ii) for any item in dispute shall not be in excess of, nor less than, the greatest or lowest value, respectively, claimed by either party for that particular item, (iii) will state that the Draft Closing Date Balance Sheet has been prepared in accordance with the Agreed Upon Procedures and in conformity with this Agreement and (iv) such accounting firm will be conclusive and binding upon the partiesparties and shall be reflected in a final consolidated balance sheet with respect to Sellers approved or prepared by such accountants in accordance with the principles set forth in SECTION 1.8(C)(III). The Purchaser will revise consolidated balance sheet of Sellers as at the Draft start of business on the Closing Date Balance Sheet to reflect and the resolution Calculation, whether determined by agreement of any objections thereto pursuant to this Section 2.06(d), whereupon the parties or by such Draft Closing Date Balance Sheet, together with any revisions thereto pursuant to this Section 2.06(d)accountants as the case may be, shall be deemed referred to be the Closing Date Balance Sheet.
(e) In the event the parties submit any unresolved objections to the Independent Accountant for resolution herein as provided in Section 2.06(d) above, the Independent Accountant shall resolve each of such objections in favor of either the Purchaser or the Seller, and the Purchaser and Seller will share responsibility for the fees and expenses of the Independent Accountant as follows:
(i) if the Independent Accountant resolves all the remaining objections in favor of the Purchaser (the "Low ValueCLOSING DATE BALANCE SHEET."), the Seller will be responsible for all of the fees and expenses of the Independent Accountant;
(ii) if the Independent Accountant resolves all the remaining objections in favor of the Seller (the "High Value"), the Purchaser will be responsible for all of the fees and expenses of the Independent Accountant; and
(iii) if the Independent Accountant resolves some of the remaining objections in favor of the Purchaser and the rest of the remaining objections in favor of the Seller (the "Actual Value"), the Seller will be responsible for that fraction of the fees and expenses of the Independent Accountant equal to (x) the difference between the High Value and the Actual Value over (y) the difference between the High Value and the Low Value, and the Purchaser will be responsible for the remainder of the fees and expenses.
(f) The Purchaser will make the work papers and back-up materials and all other data used in preparing the Draft Closing Date Balance Sheet, and the books, records and financial statements of the Company and its Subsidiaries, available to Seller and its accountants and other representatives during normal business hours upon reasonable notice at any time during (i) the preparation by Purchaser of the Draft Closing Date Balance Sheet, (ii) the review by the Seller of the Draft Closing Date Balance Sheet and (iii) the resolution by the parties of any objections thereto. Similarly, the Seller will make the work papers and back-up materials and all other data used in connection with its objections to the Draft Closing Date Balance Sheet available to Purchaser and its accountants and other representatives during normal business hours upon reasonable notice at any time during (i) the review by the Purchaser of the written objection to the Draft Closing Date Balance Sheet and (ii) the resolution by the parties of such objection.
Appears in 1 contract
Preparation of Closing Date Balance Sheet. (a) Within forty-five (45) 30 days after the Closing Date, the Purchaser will Seller shall prepare and deliver to the Seller Buyer a draft consolidated balance sheet (the "Draft Closing Date Balance Sheet") for the Company of GBGC as of the close of business on the Closing Date (determined on a pro forma basis as though the parties had not consummated the Transactions) and prepared in accordance with the Agreed Upon Procedures.
(b) If, within forty-five (45) days following its receipt of the Draft Closing Date Balance Sheet, the Seller does not dispute the Draft Closing Date Balance Sheet, such balance sheet shall be deemed to be the consolidated balance sheet of the Company on the Closing Date (the "Closing Date Balance Sheet").
(c) If the Seller has any objections to the Draft Closing Date Balance Sheet, it will deliver a detailed statement in writing describing its objections to the Purchaser within forty-five (45) days after receiving the Draft Closing Date Balance Sheet. Purchaser and Seller will use commercially reasonable efforts to resolve any such objections themselves. If Purchaser and Seller achieve a final resolution of the Seller's objections to the Draft The Closing Date Balance Sheet within thirty shall be prepared in accordance with GAAP applied on a basis consistent with that used in, and in accordance with the same accounting principles applied in, the preparation of the financial statements referred to in Section 4.7, and shall be reviewed by Xxxxxx Xxxxxxxx (30"AA"). AA shall also perform agreed upon procedures to verify the accuracy of the calculation (the "Calculation") of GBGC's Closing Date Liabilities and Working Capital Deficiency as defined in Section 1.3 as of the Closing Date. Unless Buyer elects to forego such review, Xxxxxxx X. Xxxxxx & Company LLP ("Xxxxxx") shall have 25 days to review the Closing Date Balance Sheet and the Calculation. If Xxxxxx disagrees with the amount of Closing Date Liabilities shown on the Closing Date Balance Sheet or the Calculation, then it shall issue a report to such affect. AA and Xxxxxx shall have 30 days after the Purchaser's receipt of date the Seller's written statement of such objections, such resolution shall be set forth in writing and such Draft Xxxxxx report is issued to come to an agreement as to what the Closing Date Balance SheetLiabilities and Calculation should have been. If they are unable to agree within such 30-day period, together with any revisions thereto agreed upon by and between the Purchaser and two firms shall appoint a third accounting firm of recognized national standing which shall resolve the Seller pursuant to this Section 2.06(c)dispute (including, shall be deemed to be if necessary, auditing the Closing Date Balance Sheet. The Purchaser ) within 60 days and the Seller whose decision shall be entitled to prepay any amounts not in dispute or as to which the parties achieve final resolution (such amounts actually paid "Prepayments") plus interest at the Applicable Rate between the Closing Date and the date of such Prepaymentbinding. Any party making a Prepayment shall provide two (2) Business Days advanced written notice thereof to the other party.
(d) If the Purchaser and the Seller do not achieve a final resolution of the Seller's objections to the Draft Closing Date Balance Sheet within thirty (30) days Promptly after the Purchaser's receipt of dispute is resolved (or if there is no dispute, promptly after Xxxxxx has reviewed the Seller's written statement of such objections, the parties will jointly engage an Independent Accountant to resolve any disputes remaining between the parties. The Purchaser and the Seller shall instruct the Independent Accountant to deliver its written determination to the Purchaser and the Seller no later than the thirtieth (30th) day after such dispute was referred to it. The Independent Accountant shall act to determine, based solely on the provisions of this Section 2.06, related definitions contained herein and the presentations by the Seller and the Purchaser, and not by independent review, only those issues still in dispute and only as to whether such amounts (i) were arrived at in conformity with the Agreed Upon Procedures, (ii) were arrived at in conformity with the terms of this Agreement or (iii) contain arithmetic error. The determination of the Independent Accountant (i) will be set forth in writing, (ii) for any item in dispute shall not be in excess of, nor less than, the greatest or lowest value, respectively, claimed by either party for that particular item, (iii) will state that the Draft Closing Date Balance Sheet has been prepared in accordance with the Agreed Upon Procedures and in conformity with this Agreement and (iv) will be conclusive and binding upon the parties. The Purchaser will revise the Draft Closing Date Balance Sheet to reflect the resolution of any objections thereto pursuant to this Section 2.06(d), whereupon such Draft Closing Date Balance Sheet, together with any revisions thereto pursuant to this Section 2.06(d), shall be deemed to be the Closing Date Balance Sheet.
(e) In the event the parties submit any unresolved objections to the Independent Accountant for resolution as provided in Section 2.06(d) above, the Independent Accountant shall resolve each of such objections in favor of either the Purchaser or the Seller, and the Purchaser and Seller will share responsibility for the fees and expenses of the Independent Accountant as follows:
(i) if the Independent Accountant resolves all the remaining objections in favor of the Purchaser (the "Low Value"), the Seller will be responsible for all of the fees and expenses of the Independent Accountant;
(ii) if the Independent Accountant resolves all the remaining objections in favor of the Seller (the "High Value"), the Purchaser will be responsible for all of the fees and expenses of the Independent Accountant; and
(iii) if the Independent Accountant resolves some of the remaining objections in favor of the Purchaser and the rest of the remaining objections in favor of the Seller (the "Actual Value"), the Seller will be responsible for that fraction of the fees and expenses of the Independent Accountant equal to (x) the difference between the High Value and the Actual Value over (y) the difference between the High Value and the Low Value, and the Purchaser will be responsible for the remainder of the fees and expenses.
(f) The Purchaser will make the work papers and back-up materials and all other data used in preparing the Draft Closing Date Balance Sheet, and the books, records and financial statements of the Company and its Subsidiaries, available to Seller and its accountants and other representatives during normal business hours upon reasonable notice at any time during (i) the preparation by Purchaser of the Draft Closing Date Balance Sheet, (ii) the review by the Seller of the Draft Closing Date Balance Sheet and (iii) Calculation or Buyer has foregone such review), any amount to which Buyer would have been entitled shall be paid to Buyer by Seller including the resolution interest, if any, referred to in Section 1.1 and any amount to which Seller would have been entitled shall be paid to Seller by Buyer. The expenses of the parties of any objections thereto. Similarlythird accounting firm shall be paid by Buyer or Seller, as the Seller will make case may be, depending on whether the work papers Closing Date Liabilities and back-up materials and all other data used in connection with its objections Calculation, as determined by such third party accountants, is closer to the Draft Closing Date Balance Sheet available to Purchaser and its accountants and other representatives during normal business hours upon reasonable notice at any time during (i) the review amount proposed by the Purchaser of the written objection Xxxxxx than to the Draft Closing Date Balance Sheet and (ii) the resolution amount proposed by the parties of such objectionAA.
Appears in 1 contract
Preparation of Closing Date Balance Sheet. (a) Within forty-five (45) 90 days after the Closing Date, the Purchaser Buyer will prepare and deliver to the Seller a draft consolidated balance sheet (the "“Draft Closing Date Balance Sheet"”) for the Company Seller as of the close of business on the Closing Date (determined on a pro forma basis as though the parties Seller and Buyer had not consummated the Transactions) and prepared transactions contemplated by this Agreement). Buyer will prepare the Draft Closing Date Balance Sheet in accordance with GAAP applied on a basis consistent with the Agreed Upon Procedurespreparation of the Financial Statements provided by Seller pursuant to this Agreement.
(b) If, within forty-five (45) days following its receipt of the Draft Closing Date Balance Sheet, the Seller does not dispute the Draft Closing Date Balance Sheet, such balance sheet shall be deemed to be the consolidated balance sheet of the Company on the Closing Date (the "Closing Date Balance Sheet").
(c) If the Seller has any objections to the Draft Closing Date Balance Sheet, it will shall deliver a detailed statement in writing describing its such objections to the Purchaser Buyer within forty-five (45) 30 days after receiving the Draft Closing Date Balance Sheet. Purchaser Buyer and Seller will shall use their respective commercially reasonable efforts to resolve any such objections themselves. If Purchaser Seller and Seller achieve Buyer do not obtain a final resolution within 15 days after Buyer has received the statement of objections, however, Buyer and Seller shall select an accounting firm mutually acceptable to them to resolve any remaining objections. If Buyer and Seller are unable to agree on the choice of an accounting firm within 20 days after Buyer has received Seller’s statement of objections, they will select a nationally-recognized accounting firm by lot (after excluding their respective regular outside accounting firms). Only the amounts in dispute (the aggregate of all such amounts, the “Disputed Amounts”) will be referred to such accountants for final determination. The determination of any accounting firm so selected shall be issued in writing within 45 days of such referral. The final determination of the Seller's objections to Disputed Amounts shall be based solely on presentations by Buyer and Seller and shall not involve the accountants’ independent review. Any determination by the accountants shall not be outside the range defined by the respective amounts in the Draft Closing Date Balance Sheet within thirty (30) days after proposed by Buyer and Seller’s statement of objections, and such determination shall be final, binding and non-appealable upon Seller and Buyer. Buyer and Seller shall bear the Purchaser's receipt fees and expenses of the Seller's written statement of such objections, such resolution shall be set forth in writing and such Draft Closing Date Balance Sheet, together with any revisions thereto agreed upon by and between the Purchaser and the Seller pursuant to this Section 2.06(c), shall be deemed to be the Closing Date Balance Sheet. The Purchaser and the Seller shall be entitled to prepay any amounts not in dispute or as to which the parties achieve final resolution (such amounts actually paid "Prepayments") plus interest at the Applicable Rate between the Closing Date and the date of such Prepayment. Any party making a Prepayment shall provide two (2) Business Days advanced written notice thereof to the other partyaccountants equally.
(dc) If the Purchaser and the Seller do not achieve a final resolution of the Seller's objections to the Draft Closing Date Balance Sheet within thirty (30) days after the Purchaser's receipt of the Seller's written statement of such objections, the parties will jointly engage an Independent Accountant to resolve any disputes remaining between the parties. The Purchaser and the Seller Buyer shall instruct the Independent Accountant to deliver its written determination to the Purchaser and the Seller no later than the thirtieth (30th) day after such dispute was referred to it. The Independent Accountant shall act to determine, based solely on the provisions of this Section 2.06, related definitions contained herein and the presentations by the Seller and the Purchaser, and not by independent review, only those issues still in dispute and only as to whether such amounts (i) were arrived at in conformity with the Agreed Upon Procedures, (ii) were arrived at in conformity with the terms of this Agreement or (iii) contain arithmetic error. The determination of the Independent Accountant (i) will be set forth in writing, (ii) for any item in dispute shall not be in excess of, nor less than, the greatest or lowest value, respectively, claimed by either party for that particular item, (iii) will state that the Draft Closing Date Balance Sheet has been prepared in accordance with the Agreed Upon Procedures and in conformity with this Agreement and (iv) will be conclusive and binding upon the parties. The Purchaser will revise the Draft Closing Date Balance Sheet as appropriate to reflect the resolution of any objections thereto pursuant to this Section 2.06(d2.6(c), whereupon such . The “Closing Date Balance Sheet” shall mean the Draft Closing Date Balance Sheet, Sheet together with any revisions thereto pursuant to this Section 2.06(d2.6(c), shall be deemed to be the Closing Date Balance Sheet.
(e) In the event the parties submit any unresolved objections to the Independent Accountant for resolution as provided in Section 2.06(d) above, the Independent Accountant shall resolve each of such objections in favor of either the Purchaser or the Seller, and the Purchaser and Seller will share responsibility for the fees and expenses of the Independent Accountant as follows:
(i) if the Independent Accountant resolves all the remaining objections in favor of the Purchaser (the "Low Value"), the Seller will be responsible for all of the fees and expenses of the Independent Accountant;
(ii) if the Independent Accountant resolves all the remaining objections in favor of the Seller (the "High Value"), the Purchaser will be responsible for all of the fees and expenses of the Independent Accountant; and
(iii) if the Independent Accountant resolves some of the remaining objections in favor of the Purchaser and the rest of the remaining objections in favor of the Seller (the "Actual Value"), the Seller will be responsible for that fraction of the fees and expenses of the Independent Accountant equal to (x) the difference between the High Value and the Actual Value over (y) the difference between the High Value and the Low Value, and the Purchaser will be responsible for the remainder of the fees and expenses.
(f) The Purchaser . Buyer will make the work papers and back-up materials and all other data used in preparing the Draft Closing Date Balance Sheet, including (without limitation), all books and the books, records and financial statements of the Company and its SubsidiariesSeller, available to Seller and its Seller’s accountants and other representatives during normal business hours at reasonable times and upon reasonable notice at any time during (i) the preparation by Purchaser Buyer of the Draft Closing Date Balance Sheet, (ii) the review by the Seller of the Draft Closing Date Balance Sheet Sheet, and (iii) the resolution by the parties Seller and Buyer of any objections thereto. Similarly, the Seller will make the work papers and back-up materials and all other data used in connection with its objections to the Draft Closing Date Balance Sheet available to Purchaser and its accountants and other representatives during normal business hours upon reasonable notice at any time during (i) the review by the Purchaser of the written objection to the Draft Closing Date Balance Sheet and (ii) the resolution by the parties of such objection.
Appears in 1 contract
Samples: Asset Purchase Agreement (Commercial Vehicle Group, Inc.)
Preparation of Closing Date Balance Sheet. (ai) Within forty-five Not later than two (452) days after Business Days prior to the Closing DateClosing, the Purchaser will deliver to the Seller a draft consolidated Company and Parent shall provide Buyer an estimated balance sheet (the "Draft “Estimated Closing Date Balance Sheet"”) for the Company and its consolidated Subsidiaries as of the close of business on the Business Day immediately preceding the Closing Date, which shall include the Company’s good faith calculation, prepared from the books and records of the Company and based on the most recently available financial information, of the estimated Working Capital as of such date (the “Estimated Working Capital”). The Estimated Closing Date (determined on a pro forma basis as though the parties had not consummated the Transactions) and Balance Sheet shall be prepared in accordance with GAAP applied using the Agreed Upon Proceduressame accounting methods, practices, principles, policies and procedures, with consistent classifications, judgments and valuation and estimation and accrual methodologies that were used in the preparation of the Financial Statements (provided, that all the foregoing shall be in accordance with GAAP in all respects) (collectively, the “Methodologies”).
(bii) If, within forty-five Within ninety (4590) days following after the Closing Date, Buyer shall deliver to Parent a balance sheet (the “Closing Date Balance Sheet”) for the Company and its consolidated Subsidiaries as of the close of business on the Business Day immediately preceding the Closing Date, which shall include Buyer’s good faith calculation of Working Capital as of such date (the “Closing Date Working Capital”). The Closing Date Balance Sheet shall be prepared in accordance with GAAP applied using the Methodologies.
(iii) Within sixty (60) days after receipt of the Draft Closing Date Balance Sheet (the “Objection Period”), Parent by written notice to Buyer may object to Buyer’s calculation of Closing Date Working Capital as set forth in the Closing Date Balance Sheet, setting forth in such notice a statement describing in reasonable detail Parent’s objection (the Seller does not dispute “Objection Notice”) and Parent’s proposal or proposals with respect to the Draft calculation of Closing Date Balance SheetWorking Capital; provided, such balance sheet shall be deemed to be the consolidated balance sheet of the Company on the Closing Date (the "Closing Date Balance Sheet").
(c) If the Seller has any objections that Parent may object to the Draft Closing Date Balance Sheet, it will deliver a detailed statement in writing describing its objections to the Purchaser within forty-five (45) days after receiving the Draft Closing Date Balance Sheet. Purchaser and Seller will use commercially reasonable efforts to resolve any such objections themselves. If Purchaser and Seller achieve a final resolution of the Seller's objections to the Draft Closing Date Balance Sheet based only on the existence of mathematical or factual errors contained therein or on the failure of the Closing Date Balance Sheet to be prepared in accordance with GAAP applied using the Methodologies. Within thirty (30) days following timely delivery of the Objection Notice, Buyer and Parent shall attempt, in good faith, to resolve all disputes properly contained in the Objection Notice. If Buyer and Parent do not obtain a final resolution within thirty (30) days after the Purchaser's receipt of the Seller's written statement of Parent delivers an Objection Notice, however, Buyer and Parent shall submit such objectionsdispute to an Accounting Firm. Promptly, such resolution shall be set forth in writing and such Draft Closing Date Balance Sheet, together with any revisions thereto agreed upon by and between the Purchaser and the Seller pursuant to this Section 2.06(c), shall be deemed to be the Closing Date Balance Sheet. The Purchaser and the Seller shall be entitled to prepay any amounts but not in dispute or as to which the parties achieve final resolution (such amounts actually paid "Prepayments") plus interest at the Applicable Rate between the Closing Date and the date of such Prepayment. Any party making a Prepayment shall provide two (2) Business Days advanced written notice thereof to the other party.
(d) If the Purchaser and the Seller do not achieve a final resolution of the Seller's objections to the Draft Closing Date Balance Sheet within later than thirty (30) days after the Purchaser's receipt of dispute has been submitted to the Seller's written statement of such objectionsAccounting Firm, the parties will jointly engage an Independent Accountant to resolve any disputes remaining between the parties. The Purchaser and the Seller Accounting Firm shall instruct the Independent Accountant to deliver its written determination to the Purchaser and the Seller no later than the thirtieth determine (30th) day after such dispute was referred to it. The Independent Accountant shall act to determine, based solely on presentations or materials submitted by Parent and Buyer to the provisions of this Section 2.06, related definitions contained herein and the presentations by the Seller and the PurchaserAccounting Firm, and not by independent review, only those issues still in dispute and only as to whether such amounts ) (i) were arrived at in conformity with whether the Agreed Upon Procedures, (ii) were arrived at in conformity with the terms of this Agreement or (iii) contain arithmetic error. The determination of the Independent Accountant (i) will be set forth in writing, (ii) for any item in dispute shall not be in excess of, nor less than, the greatest or lowest value, respectively, claimed by either party for that particular item, (iii) will state that the Draft Closing Date Balance Sheet has been contained mathematical or factual errors or failed to be prepared in accordance with GAAP applied using the Agreed Upon Procedures and in conformity with this Agreement Methodologies, and (ivii) will if any such error or failure exists, its calculations to correct for such error or failure. In determining any disputed item, the Accounting Firm may not assign a value to such item greater than the greatest value for such item claimed by either Party or less than the lowest value for such item claimed by either Party. For the purposes of the Accounting Firm’s calculation of the Closing Date Working Capital, the amounts to be included shall be the appropriate amounts from the Closing Date Balance Sheet as to items that are not in dispute, and the amounts determined by the Accounting Firm as to items that are in dispute. Parent and Buyer shall cooperate with the Accounting Firm in making its determination and such determination shall be conclusive and binding upon the parties. The Purchaser will revise parties hereto absent manifest error.
(iv) If Parent does not deliver an Objection Notice during the Draft Objection Period, then the calculation of the Closing Date Working Capital as set forth in the Closing Date Balance Sheet shall be deemed to have been accepted and shall be final and binding on all Parties. The term “Final Closing Date Balance Sheet” means (A) the Closing Date Balance Sheet, if Parent accepts the Closing Date Balance Sheet as delivered or does not deliver an Objection Notice during the Objection Period, or (B) the Closing Date Balance Sheet as finally determined in accordance with the procedures set forth in Section 2.4(a)(iii) to reflect the resolution of any objections thereto thereto, if Parent delivers an Objection Notice during the Objection Period. The term “Actual Working Capital” means the Closing Date Working Capital calculated pursuant to this Section 2.06(d), whereupon such Draft Closing Date Balance Sheet, together with any revisions thereto pursuant to this Section 2.06(d), shall be deemed to be the Final Closing Date Balance Sheet.
(e) In the event the parties submit any unresolved objections to the Independent Accountant for resolution as provided in Section 2.06(d) above, the Independent Accountant shall resolve each of such objections in favor of either the Purchaser or the Seller, and the Purchaser and Seller will share responsibility for the fees and expenses of the Independent Accountant as follows:
(i) if the Independent Accountant resolves all the remaining objections in favor of the Purchaser (the "Low Value"), the Seller will be responsible for all of the fees and expenses of the Independent Accountant;
(ii) if the Independent Accountant resolves all the remaining objections in favor of the Seller (the "High Value"), the Purchaser will be responsible for all of the fees and expenses of the Independent Accountant; and
(iii) if the Independent Accountant resolves some of the remaining objections in favor of the Purchaser and the rest of the remaining objections in favor of the Seller (the "Actual Value"), the Seller will be responsible for that fraction of the fees and expenses of the Independent Accountant equal to (x) the difference between the High Value and the Actual Value over (y) the difference between the High Value and the Low Value, and the Purchaser will be responsible for the remainder of the fees and expenses.
(f) The Purchaser will make the work papers and back-up materials and all other data used in preparing the Draft Closing Date Balance Sheet, and the books, records and financial statements of the Company and its Subsidiaries, available to Seller and its accountants and other representatives during normal business hours upon reasonable notice at any time during (i) the preparation by Purchaser of the Draft Closing Date Balance Sheet, (ii) the review by the Seller of the Draft Closing Date Balance Sheet and (iii) the resolution by the parties of any objections thereto. Similarly, the Seller will make the work papers and back-up materials and all other data used in connection with its objections to the Draft Closing Date Balance Sheet available to Purchaser and its accountants and other representatives during normal business hours upon reasonable notice at any time during (i) the review by the Purchaser of the written objection to the Draft Closing Date Balance Sheet and (ii) the resolution by the parties of such objection.
Appears in 1 contract
Preparation of Closing Date Balance Sheet. (a) Within forty-five (45) days after the Closing DateAt Closing, the Seller shall provide Purchaser will deliver to the Seller with a draft consolidated balance sheet (the "Draft Closing Date Balance Sheet") for the Company schedule of Purchased Assets and Assumed Liabilities correct as of the close of business on the Closing Date (determined on a pro forma basis as though the parties had not consummated the Transactions) and date, prepared in accordance with the Agreed Upon Procedures.
(b) If, within forty-five (45) days following its receipt of the Draft Closing Date Balance Sheet, the Seller does not dispute the Draft Closing Date Balance Sheet, such balance sheet shall be deemed to be the consolidated balance sheet of the Company on the Closing Date GAAP (the "Closing Date Balance Sheet").
(c) If except that, with respect to those Receivables that the Seller has any objections to Seller, the Draft Closing Date Balance SheetExecutive and the Stockholder have guaranteed, it will deliver a detailed statement in writing describing its objections to the Purchaser within forty-five (45) days after receiving the Draft Closing Date Balance Sheetsame shall be stated at face value. Purchaser and Seller will use commercially reasonable efforts to resolve any such objections themselves. If Purchaser and Seller achieve a final resolution Seller's Net Tangible Assets as of the Seller's objections to the Draft date of Closing shall be determined in accordance with GAAP. The Closing Date Balance Sheet within thirty (30) days after the Purchaser's receipt shall be accompanied by a certificate of the Seller's written statement Executive, Chief Operating Officer and Chief Financial Officer of Seller that such objections, such resolution shall be set forth in writing and such Draft Closing Date Balance Sheet, together with any revisions thereto agreed upon by and between the Purchaser and the Seller pursuant to this Section 2.06(c), shall be deemed to be the Closing Date Balance Sheet. The Purchaser and the Seller shall be entitled to prepay any amounts not in dispute or as to which the parties achieve final resolution (such amounts actually paid "Prepayments") plus interest at the Applicable Rate between the Closing Date and the date of such Prepayment. Any party making a Prepayment shall provide two (2) Business Days advanced written notice thereof to the other party.
(d) If the Purchaser and the Seller do not achieve a final resolution of the Seller's objections to the Draft Closing Date Balance Sheet within thirty (30) days after the Purchaser's receipt of the Seller's written statement of such objections, the parties will jointly engage an Independent Accountant to resolve any disputes remaining between the parties. The Purchaser and the Seller shall instruct the Independent Accountant to deliver its written determination to the Purchaser and the Seller no later than the thirtieth (30th) day after such dispute was referred to it. The Independent Accountant shall act to determine, based solely on the provisions of this Section 2.06, related definitions contained herein and the presentations by the Seller and the Purchaser, and not by independent review, only those issues still in dispute and only as to whether such amounts (i) were arrived at in conformity with the Agreed Upon Procedures, (ii) were arrived at in conformity with the terms of this Agreement or (iii) contain arithmetic error. The determination of the Independent Accountant (i) will be set forth in writing, (ii) for any item in dispute shall not be in excess of, nor less than, the greatest or lowest value, respectively, claimed by either party for that particular item, (iii) will state that the Draft Closing Date Balance Sheet has been prepared in accordance with GAAP. Prior to the Agreed Upon Procedures date of Closing, the Seller shall conduct a physical count of all of Seller's inventory and any other physical assets as of the date as requested by the Purchaser. Such inventory count shall be attended by the Purchaser and its accountants and other representatives, and the Purchaser and its accountants and other representatives shall be afforded access to the work papers and other records of the Seller and its accountants in conformity connection with this Agreement and (iv) will be conclusive and binding upon the partiessuch inventory count. The Purchaser will revise the Draft Closing Date Balance Sheet to reflect the resolution results of any objections thereto pursuant to this Section 2.06(d), whereupon such Draft Closing Date Balance Sheet, together with any revisions thereto pursuant to this Section 2.06(d), inventory count shall be deemed used to be determine the inventory value as of the Closing in order to calculate the Net Tangible Assets included in the Closing Date Balance Sheet.
(eb) In If the event value of the parties submit any unresolved objections to the Independent Accountant for resolution as provided in Section 2.06(d) above, the Independent Accountant shall resolve each Net Tangible Assets of such objections in favor of either the Purchaser or the Seller, and as set forth on the Purchaser and Seller will share responsibility for the fees and expenses of the Independent Accountant as follows:
(i) if the Independent Accountant resolves all the remaining objections in favor of the Purchaser (the "Low Value"), the Seller will be responsible for all of the fees and expenses of the Independent Accountant;
(ii) if the Independent Accountant resolves all the remaining objections in favor of the Seller (the "High Value"), the Purchaser will be responsible for all of the fees and expenses of the Independent Accountant; and
(iii) if the Independent Accountant resolves some of the remaining objections in favor of the Purchaser and the rest of the remaining objections in favor of the Seller (the "Actual Value"), the Seller will be responsible for that fraction of the fees and expenses of the Independent Accountant equal to (x) the difference between the High Value and the Actual Value over (y) the difference between the High Value and the Low Value, and the Purchaser will be responsible for the remainder of the fees and expenses.
(f) The Purchaser will make the work papers and back-up materials and all other data used in preparing the Draft Closing Date Balance Sheet, is less than $1,550,000, the purchase price and the booksfunds to be paid at Closing by Purchaser pursuant to Section 2.1(a)(i) shall be reduced dollar for dollar for the difference. Subsequent to the Closing, records and financial statements but in no event later than seventy-five (75) days thereafter, the Purchaser or its independent accountants shall tentatively determine the Net Tangible Assets of Seller as of the Company Closing and submit its Subsidiaries, available calculation to the Seller for review. The Seller shall be provided reasonable access to the work papers and all other appropriate records of Purchaser or its independent accountants and other representatives during normal business hours upon reasonable used to arrive at such calculation. The Seller shall accept or reject the calculation by written notice at any time during to the Purchaser within thirty (i30) days thereafter; failure to reject the preparation by Purchaser calculation within such period shall be deemed conclusive acceptance of the Draft calculation. If Seller disputes the calculation, the parties will attempt to resolve their differences jointly and shall provide reasonable access to each other's appropriate records, including, but not limited to, their respective work papers, but if no resolution is reached within ten (10) business days, then the parties agree to submit the disputed items to a Big 6 accounting firm, or such other arbiter, as may be mutually agreed upon, for determination within thirty (30) business days, which determination shall be conclusive for all purposes. Such mutually agreed arbiter's sole assignment shall be to determine whether the Net Tangible Asset value as of the Closing Date Balance Sheet, (ii) has been computed in accordance with the review terms of this Section 5.6. The cost of such mutually agreed arbiter's determination shall be borne equally by the parties.
(c) If the final Net Tangible Asset value, as determined above (the "Final Amount"), is less than $1,550,000, then the purchase price shall be reduced dollar for dollar and Seller shall pay to the Purchaser, in immediately available funds, the difference between $1,550,000 and the Final Amount within five (5) business days, from such determination, provided, however, no reduction shall be made to the purchase price to the extent that the reduction in the value of the Draft Net Tangible Assets on the Closing Date Balance Sheet is solely attributable to expenses of Seller having been capitalized and (iii) included in the resolution by the parties value of any objections thereto. Similarly, the Seller will make the work papers and back-up materials and all other data used in connection with its objections to the Draft Seller's inventory as set forth on such Closing Date Balance Sheet consistent with the Seller's audited 1995 financial statements. In the event that such payment is not timely made, then notwithstanding any other provision contained herein (including, but not limited to, any notice period herein described), and in addition to all other rights and remedies available to Purchaser and its accountants and other representatives during normal business hours upon reasonable notice ABA at any time during law or equity, or pursuant to this Agreement, the Guarantee, or otherwise, Purchaser shall have the absolute right to immediately withdraw from the Escrow Fund for the Purchaser's own account such number of shares of ABA Common Stock as will have a value (ias determined in accordance with Section 2.1(a)(i)) the review by the Purchaser equal to 150% of the written objection difference between $1,550,000 and the Final Amount, and such adjustment shall be deemed a reduction to the Draft Closing Date Balance Sheet purchase price set forth in Section 2.1(a)(i). Such shares so removed from the Escrow Fund shall not be subject to the terms and provisions of the Escrow Fund, and shall belong to the Purchaser. The Threshold Amount shall not be applicable to the Final Amount adjustment payments hereinabove described, which shall be payable dollar for dollar as herein provided.
(iid) On the resolution by first anniversary date of the parties Closing, Purchaser may sell, in which event Seller shall purchase, for cash, all unsold inventory of Number 19 grenades included in the inventory as part of the Purchased Assets. Payment shall be made simultaneously against delivery of such objectiongrenades to Seller.
Appears in 1 contract
Preparation of Closing Date Balance Sheet. (ai) Within forty-five (45) 90 days after the Closing Date, the Purchaser will prepare and deliver to the Seller a draft consolidated balance sheet (the "Draft Closing Date Balance Sheet") for the Company as of the close of business on the Closing Date (determined on and a pro forma basis as though computation and determination of Net Working Capital and the parties had not consummated the Transactions) and prepared Adjusted Merger Consideration in accordance with the Agreed Upon Procedures.
(b) If, within forty-five (45) days following its receipt provisions of this Section 2(e). Purchaser will prepare the Draft Closing Date Balance SheetSheet in accordance with GAAP applied on a basis consistent with the preparation of the Financial Statements, through full application of the Seller does not dispute procedures used in preparing the Draft Closing Date Balance Sheet, such most recent audited balance sheet shall be deemed to be included within the consolidated balance sheet of the Company on the Closing Date (the "Closing Date Balance Sheet")Financial Statements.
(cii) If the Seller has any objections objection to the Draft Closing Date Balance Sheet, it he will deliver a detailed statement in writing describing its his objections to the Purchaser within forty-five (45) 30 days after receiving the Draft Closing Date Balance Sheet. Purchaser and Seller will use commercially reasonable efforts to resolve any such objections themselvesobjections. If the Parties do not obtain a final resolution within 30 days after Purchaser has received the statement of objections, however, Purchaser and Seller will select an accounting firm mutually acceptable to them to resolve any remaining objections. If Purchaser and Seller achieve are unable to agree on the choice of an accounting firm, they will select a final resolution nationally-recognized accounting firm by lot (after excluding their respective regular outside accounting firms). The determination of the Seller's objections to the Draft Closing Date Balance Sheet within thirty (30) days after the Purchaser's receipt of the Seller's written statement of such objections, such resolution shall any accounting firm so selected will be set forth in writing and such Draft Closing Date Balance Sheet, together with any revisions thereto agreed upon by and between the Purchaser and the Seller pursuant to this Section 2.06(c), shall be deemed to be the Closing Date Balance Sheet. The Purchaser and the Seller shall be entitled to prepay any amounts not in dispute or as to which the parties achieve final resolution (such amounts actually paid "Prepayments") plus interest at the Applicable Rate between the Closing Date and the date of such Prepayment. Any party making a Prepayment shall provide two (2) Business Days advanced written notice thereof to the other party.
(d) If the Purchaser and the Seller do not achieve a final resolution of the Seller's objections to the Draft Closing Date Balance Sheet within thirty (30) days after the Purchaser's receipt of the Seller's written statement of such objections, the parties will jointly engage an Independent Accountant to resolve any disputes remaining between the parties. The Purchaser and the Seller shall instruct the Independent Accountant to deliver its written determination to the Purchaser and the Seller no later than the thirtieth (30th) day after such dispute was referred to it. The Independent Accountant shall act to determine, based solely on the provisions of this Section 2.06, related definitions contained herein and the presentations by the Seller and the Purchaser, and not by independent review, only those issues still in dispute and only as to whether such amounts (i) were arrived at in conformity with the Agreed Upon Procedures, (ii) were arrived at in conformity with the terms of this Agreement or (iii) contain arithmetic error. The determination of the Independent Accountant (i) will be set forth in writing, (ii) for any item in dispute shall not be in excess of, nor less than, the greatest or lowest value, respectively, claimed by either party for that particular item, (iii) will state that the Draft Closing Date Balance Sheet has been prepared in accordance with the Agreed Upon Procedures and in conformity with this Agreement and (iv) will be conclusive and binding upon the partiesParties. The Purchaser will revise the Draft Closing Date Balance Sheet as appropriate to reflect the resolution of any objections thereto pursuant to this Section 2.06(d2(e)(ii), whereupon such . The "Closing Date Balance Sheet" shall mean the Draft Closing Date Balance SheetSheet together with any revisions thereto pursuant to this Section 2(e)(ii). The "Adjusted Merger Consideration" shall mean the Preliminary Merger Consideration, together with any revisions thereto pursuant to this Section 2.06(d2(e), shall be deemed to be including the Closing Date Balance Sheet.
(e) In the event the parties submit any unresolved objections to the Independent Accountant for resolution as provided in Section 2.06(d) above, the Independent Accountant shall resolve each of such objections in favor of either the Purchaser or the Seller, and the Purchaser and Seller will share responsibility for the fees and expenses determination of the Independent Accountant as follows:
(i) if the Independent Accountant resolves all the remaining objections in favor of the Purchaser (the "Low Value"), the Seller will be responsible for all of the fees and expenses of the Independent Accountant;
(ii) if the Independent Accountant resolves all the remaining objections in favor of the Seller (the "High Value"), the Purchaser will be responsible for all of the fees and expenses of the Independent Accountant; and
(iii) if the Independent Accountant resolves some of the remaining objections in favor of the Purchaser and the rest of the remaining objections in favor of the Seller (the "Actual Value"), the Seller will be responsible for that fraction of the fees and expenses of the Independent Accountant equal to (x) the difference between the High Value and the Actual Value over (y) the difference between the High Value and the Low Value, and the Purchaser will be responsible for the remainder of the fees and expenses.
(f) The Purchaser will make the work papers and back-up materials and all other data used in preparing the Draft Closing Date Balance Sheet, and the books, records and financial statements of the Company and its Subsidiaries, available to Seller and its accountants and other representatives during normal business hours upon reasonable notice at any time during (i) the preparation by Purchaser of the Draft Closing Date Balance Sheet, (ii) the review by the Seller of the Draft Closing Date Balance Sheet and (iii) the resolution by the parties of any objections thereto. Similarly, the Seller will make the work papers and back-up materials and all other data used in connection with its objections to the Draft Closing Date Balance Sheet available to Purchaser and its accountants and other representatives during normal business hours upon reasonable notice at any time during (i) the review by the Purchaser of the written objection to the Draft Closing Date Balance Sheet and (ii) the resolution by the parties of such objection.
Appears in 1 contract
Preparation of Closing Date Balance Sheet. (a) Within forty-five (45) 30 days after the Closing Date, the Purchaser will Seller shall prepare and deliver to the Seller Buyer a draft consolidated balance sheet (the "Draft Closing Date Balance Sheet") for the Company of GBGC as of the close of business on the Closing Date (determined on a pro forma basis as though the parties had not consummated the Transactions) and prepared in accordance with the Agreed Upon Procedures.
(b) If, within forty-five (45) days following its receipt of the Draft Closing Date Balance Sheet, the Seller does not dispute the Draft Closing Date Balance Sheet, such balance sheet shall be deemed to be the consolidated balance sheet of the Company on the Closing Date (the "Closing Date Balance Sheet").
(c) If the Seller has any objections to the Draft Closing Date Balance Sheet, it will deliver a detailed statement in writing describing its objections to the Purchaser within forty-five (45) days after receiving the Draft Closing Date Balance Sheet. Purchaser and Seller will use commercially reasonable efforts to resolve any such objections themselves. If Purchaser and Seller achieve a final resolution of the Seller's objections to the Draft The Closing Date Balance Sheet within thirty shall be prepared in accordance with GAAP applied on a basis consistent with that used in, and in accordance with the same accounting principles applied in, the preparation of the financial statements referred to in Section 4.7, and shall be reviewed by Arthur Andersen (30"AA"). AA shall also perform agreed upon procedures tx xxxxfx xxx xxcuracy of the calculation (the "Calculation") of GBGC's Closing Date Liabilities and Working Capital Deficiency as defined in Section 1.3 as of the Closing Date. Unless Buyer elects to forego such review, Richard A. Eisner & Company LLP ("Eisner") shall have 25 days to reviex xxx Xxxxxxx Xxxe Balance Sheet axx xxx Calculation. If Eisner disagrees with the amount of Closing Date Liabilities shown on xxx Xxosing Date Balance Sheet or the Calculation, then it shall issue a report to such affect. AA and Eisner shall have 30 days after the Purchaser's receipt date the Eisner report is issued tx xxxx to an agreement as to what the Closing Xxxx Liabilities and Calculation should have been. If they are unable to agree within such 30-day period, the two firms shall appoint a third accounting firm of recognized national standing which shall resolve the Seller's written statement of such objectionsdispute (including, such resolution shall be set forth in writing and such Draft Closing Date Balance Sheetif necessary, together with any revisions thereto agreed upon by and between the Purchaser and the Seller pursuant to this Section 2.06(c), shall be deemed to be auditing the Closing Date Balance Sheet. The Purchaser ) within 60 days and the Seller whose decision shall be entitled to prepay any amounts not in dispute or as to which the parties achieve final resolution (such amounts actually paid "Prepayments") plus interest at the Applicable Rate between the Closing Date and the date of such Prepaymentbinding. Any party making a Prepayment shall provide two (2) Business Days advanced written notice thereof to the other party.
(d) If the Purchaser and the Seller do not achieve a final resolution of the Seller's objections to the Draft Closing Date Balance Sheet within thirty (30) days Promptly after the Purchaser's receipt of dispute is resolved (or if there is no dispute, promptly after Eisner has reviewed the Seller's written statement of such objections, the parties will jointly engage an Independent Accountant to resolve any disputes remaining between the parties. The Purchaser and the Seller shall instruct the Independent Accountant to deliver its written determination to the Purchaser and the Seller no later than the thirtieth (30th) day after such dispute was referred to it. The Independent Accountant shall act to determine, based solely on the provisions of this Section 2.06, related definitions contained herein and the presentations by the Seller and the Purchaser, and not by independent review, only those issues still in dispute and only as to whether such amounts (i) were arrived at in conformity with the Agreed Upon Procedures, (ii) were arrived at in conformity with the terms of this Agreement or (iii) contain arithmetic error. The determination of the Independent Accountant (i) will be set forth in writing, (ii) for any item in dispute shall not be in excess of, nor less than, the greatest or lowest value, respectively, claimed by either party for that particular item, (iii) will state that the Draft Closing Date Balance Sheet has been prepared in accordance with the Agreed Upon Procedures and in conformity with this Agreement and (iv) will be conclusive and binding upon the parties. The Purchaser will revise the Draft Closing Date Balance Sheet to reflect the resolution of any objections thereto pursuant to this Section 2.06(d), whereupon such Draft Closing Date Balance Sheet, together with any revisions thereto pursuant to this Section 2.06(d), shall be deemed to be the Closing Date Balance Sheet.
(e) In the event the parties submit any unresolved objections to the Independent Accountant for resolution as provided in Section 2.06(d) above, the Independent Accountant shall resolve each of such objections in favor of either the Purchaser or the Seller, and the Purchaser and Seller will share responsibility for the fees and expenses of the Independent Accountant as follows:
(i) if the Independent Accountant resolves all the remaining objections in favor of the Purchaser (the "Low Value"), the Seller will be responsible for all of the fees and expenses of the Independent Accountant;
(ii) if the Independent Accountant resolves all the remaining objections in favor of the Seller (the "High Value"), the Purchaser will be responsible for all of the fees and expenses of the Independent Accountant; and
(iii) if the Independent Accountant resolves some of the remaining objections in favor of the Purchaser and the rest of the remaining objections in favor of the Seller (the "Actual Value"), the Seller will be responsible for that fraction of the fees and expenses of the Independent Accountant equal to (x) the difference between the High Value and the Actual Value over (y) the difference between the High Value and the Low Value, and the Purchaser will be responsible for the remainder of the fees and expenses.
(f) The Purchaser will make the work papers and back-up materials and all other data used in preparing the Draft Closing Date Balance Sheet, and the books, records and financial statements of the Company and its Subsidiaries, available to Seller and its accountants and other representatives during normal business hours upon reasonable notice at any time during (i) the preparation by Purchaser of the Draft Closing Date Balance Sheet, (ii) the review by the Seller of the Draft Closing Date Balance Sheet and (iii) Calculation or Xxxxx has foregone such review), any amount to which Buyer would have been entitled shall be paid to Buyer by Seller including the resolution interest, if any, referred to in Section 1.1 and any amount to which Seller would have been entitled shall be paid to Seller by Buyer. The expenses of the parties of any objections thereto. Similarlythird accounting firm shall be paid by Buyer or Seller, as the Seller will make case may be, depending on whether the work papers Closing Date Liabilities and back-up materials and all other data used in connection with its objections Calculation, as determined by such third party accountants, is closer to the Draft Closing Date Balance Sheet available to Purchaser and its accountants and other representatives during normal business hours upon reasonable notice at any time during (i) the review amount proposed by the Purchaser of the written objection Eisner than to the Draft Closing Date Balance Sheet and (ii) the resolution amount proposed by the parties of such objectionAA.
Appears in 1 contract
Preparation of Closing Date Balance Sheet. (a) Within forty-five (45) 95 days after the Closing Date, the Purchaser will Buyer shall prepare and deliver to the Seller Sellers (i) a draft consolidated balance sheet of Target, prepared in accordance with GAAP, as of immediately after the Closing (the "“Draft Closing Date Balance Sheet") for the Company ”), provided that accounts receivable existing as of the close Closing Date will be included in the Draft Closing Date Balance Sheet and Closing Balance Sheet only to the extent they are actually collected within 90 days after the Closing Date; and (ii) a written calculation of business the Adjusted Net Working Capital, as of immediately after the Closing based on the Draft Closing Date Balance Sheet. The Closing Date Balance Sheet will be prepared in substantially the form of the adjusted balance sheet of Target as of June 30, 2007, a copy of which is attached as Exhibit L, and the Buyer’s written calculation of the Adjusted Net Working Capital shall be in the form of the written calculation of the Adjusted Net Working Capital as of June 30, 2007, a copy of which is attached as Exhibit M. Contemporaneous with Buyer’s delivery of the above referenced documentation, Buyer shall prepare and deliver to Sellers supporting documents and work papers necessary to substantiate information contained in the Draft Closing Date Balance Sheet. Buyer will cause Target to continue to use its typical and customary collection efforts as were used by Target before the Closing to attempt to collect accounts receivable arising before the Closing Date (determined the “Pre-Closing Accounts Receivable”). On or before the tenth (10th) day of each month Buyer will cause Target to pay to Sellers the aggregate amount of Pre-Closing Accounts Receivable actually collected by Target during the immediately preceding month along with a report on a pro forma basis as though the parties had aging of Pre-Closing Accounts Receivable and collection status thereof. Any Pre-Closing Accounts Receivable not consummated collected within one year after the Transactions) and prepared in accordance with the Agreed Upon ProceduresClosing shall be assigned without warranty or recourse by Target to Sellers, at Sellers’ request.
(b) IfBuyer will make the books and records of Target, within forty-five (45) days available to Sellers’ Representative and Sellers’ accountants and other advisers at reasonable times and upon reasonable notice following its receipt the delivery by Buyer to the Sellers’ Representative of the Draft Closing Date Balance Sheet, Sheet and during the Seller does not dispute review by Sellers of the Draft Closing Date Balance Sheet, such balance sheet shall be deemed to be Sheet and the consolidated balance sheet resolution by the Parties of the Company on the Closing Date (the "Closing Date Balance Sheet")any objections thereto.
(c) If the Seller has Sellers have any objections objection to the Draft Closing Date Balance Sheet, it will deliver a detailed statement in writing describing its objections to the Purchaser then, within forty-five (45) 30 days after receiving Sellers receive the Draft Closing Date Balance Sheet, Sellers’ Representative shall deliver to Buyer a detailed statement describing Sellers’ objections. Purchaser Buyer and Seller will Sellers shall meet and use commercially reasonable efforts to resolve any such objections themselvesobjections. If Purchaser within 30 days after Buyer receives the Sellers’ statement of objections Buyer and Seller achieve a final resolution Sellers do not resolve Sellers’ objections, Buyer and Sellers shall jointly appoint the accounting firm of KPMG LLP (the “CPA Firm”) to resolve the dispute. The CPA Firm shall certify its independence to the Parties and that it has not performed accounting or consulting services for any of the Seller's objections Parties for at least five years. The CPA Firm shall be instructed to the Draft Closing Date Balance Sheet render a decision in writing within thirty sixty (3060) days after the Purchaser's receipt its appointment. The decision of the Seller's written statement of such CPA Firm shall be final and binding on the parties. If the Parties engage the CPA Firm to resolve Sellers’ objections, such resolution Buyer and Sellers shall be set forth in writing each pay one-half of the CPA Firm’s fees and such expenses. If KPMG LLP is unable or unwilling to serve as the CPA Firm, Buyer and Seller’s Representative shall jointly name a different Person to act as the CPA Firm under this Section; provided that, if Buyer and Sellers’ Representative fail to agree on a substitute CPA Firm within 15 days either Party may petition the Court having jurisdiction to appoint the CPA Firm.
(d) Buyer shall revise the Draft Closing Date Balance Sheet, together with any revisions thereto agreed upon by and between the Purchaser and the Seller pursuant to this Section 2.06(c)calculation of Adjusted Net Working Capital and Long-Term Debt, shall be deemed to be the Closing Date Balance Sheet. The Purchaser and the Seller shall be entitled to prepay any amounts not in dispute or each case as to which the parties achieve final resolution (such amounts actually paid "Prepayments") plus interest at the Applicable Rate between the Closing Date and the date of such Prepayment. Any party making a Prepayment shall provide two (2) Business Days advanced written notice thereof to the other party.
(d) If the Purchaser and the Seller do not achieve a final resolution of the Seller's objections to the Draft Closing Date Balance Sheet within thirty (30) days after the Purchaser's receipt of the Seller's written statement of such objections, the parties will jointly engage an Independent Accountant to resolve any disputes remaining between the parties. The Purchaser and the Seller shall instruct the Independent Accountant to deliver its written determination to the Purchaser and the Seller no later than the thirtieth (30th) day after such dispute was referred to it. The Independent Accountant shall act to determine, based solely on the provisions of this Section 2.06, related definitions contained herein and the presentations by the Seller and the Purchaser, and not by independent review, only those issues still in dispute and only as to whether such amounts (i) were arrived at in conformity with the Agreed Upon Procedures, (ii) were arrived at in conformity with the terms of this Agreement or (iii) contain arithmetic error. The determination of the Independent Accountant (i) will be set forth in writing, (ii) for any item in dispute shall not be in excess of, nor less than, the greatest or lowest value, respectively, claimed by either party for that particular item, (iii) will state that the Draft Closing Date Balance Sheet has been prepared in accordance with the Agreed Upon Procedures and in conformity with this Agreement and (iv) will be conclusive and binding upon the parties. The Purchaser will revise the Draft Closing Date Balance Sheet appropriate to reflect the resolution of any objections thereto pursuant to this Section 2.06(d), whereupon such 2.6. The “Closing Date Balance Sheet” shall mean the Draft Closing Date Balance Sheet, together with any revisions thereto Sheet as revised pursuant to this Section 2.06(d), shall be deemed to be 2.6. The “Closing Net Working Capital” means the Adjusted Net Working Capital as of immediately after the Closing as determined based on the Closing Date Balance Sheet. The “Closing Long-Term Debt “ means Target’s Long-Term Debt as of immediately after the Closing as determined based on the Closing Date Balance Sheet.
(e) In the event the parties submit any unresolved objections to the Independent Accountant for resolution as provided in Section 2.06(d) above, the Independent Accountant shall resolve each of such objections in favor of either the Purchaser or the Seller, and the Purchaser and Seller will share responsibility for the fees and expenses of the Independent Accountant as follows:
(i) if the Independent Accountant resolves all the remaining objections in favor of the Purchaser (the "Low Value"), the Seller will be responsible for all of the fees and expenses of the Independent Accountant;
(ii) if the Independent Accountant resolves all the remaining objections in favor of the Seller (the "High Value"), the Purchaser will be responsible for all of the fees and expenses of the Independent Accountant; and
(iii) if the Independent Accountant resolves some of the remaining objections in favor of the Purchaser and the rest of the remaining objections in favor of the Seller (the "Actual Value"), the Seller will be responsible for that fraction of the fees and expenses of the Independent Accountant equal to (x) the difference between the High Value and the Actual Value over (y) the difference between the High Value and the Low Value, and the Purchaser will be responsible for the remainder of the fees and expenses.
(f) The Purchaser will make the work papers and back-up materials and all other data used in preparing the Draft Closing Date Balance Sheet, and the books, records and financial statements of the Company and its Subsidiaries, available to Seller and its accountants and other representatives during normal business hours upon reasonable notice at any time during (i) the preparation by Purchaser of the Draft Closing Date Balance Sheet, (ii) the review by the Seller of the Draft Closing Date Balance Sheet and (iii) the resolution by the parties of any objections thereto. Similarly, the Seller will make the work papers and back-up materials and all other data used in connection with its objections to the Draft Closing Date Balance Sheet available to Purchaser and its accountants and other representatives during normal business hours upon reasonable notice at any time during (i) the review by the Purchaser of the written objection to the Draft Closing Date Balance Sheet and (ii) the resolution by the parties of such objection.
Appears in 1 contract
Samples: Stock Purchase Agreement (Quality Distribution Inc)
Preparation of Closing Date Balance Sheet. (ai) Within forty-five (45) 60 days after the Closing Date, the Purchaser Buyer will prepare and deliver to the Seller a draft consolidated balance sheet calculation of Net Working Capital (the "Draft “Closing Date Balance Sheet"NWC”) for the Company Target and InnoWare Plastic as of the close of business on the Closing Date (determined on a pro forma basis as though the parties Parties had not consummated the Transactionstransactions contemplated by this Agreement). Section 2(f)(i) and prepared of the Disclosure Schedule sets forth the methodology by which the Closing Date NWC shall be calculated. Buyer’s draft calculation of Closing Date NWC will set forth Buyer’s calculation in accordance with the Agreed Upon Proceduressufficient detail to enable Seller to evaluate Buyer’s calculations.
(b) If, within forty-five (45) days following its receipt of the Draft Closing Date Balance Sheet, the Seller does not dispute the Draft Closing Date Balance Sheet, such balance sheet shall be deemed to be the consolidated balance sheet of the Company on the Closing Date (the "Closing Date Balance Sheet").
(cii) If the Seller has any objections to the Draft Closing Date Balance SheetNWC, it will shall deliver a detailed statement in writing describing its objections to the Purchaser Buyer within forty-five (45) 60 days after receiving the Draft Closing Date Balance SheetNWC. Purchaser Buyer and Seller will shall use commercially reasonable efforts to resolve any such objections themselves. If Purchaser and Seller achieve the Parties do not obtain a final resolution within 30 days after Buyer has received the statement of objections, however, Buyer and Seller shall retain a professional with arbitration experience who is a partner with or otherwise affiliated with Deloitte & Touche (or another accounting firm mutually acceptable to them if Deloitte & Touche has a conflict or is otherwise unavailable) to resolve any remaining objections. If Deloitte & Touche is unavailable and Buyer and Seller are unable to agree on the Seller's objections to the Draft Closing Date Balance Sheet choice of an accounting firm within thirty (30) days days, they will select a nationally-recognized accounting firm by lot (after the Purchaser's receipt excluding their respective regular outside accounting firms). The determination of the Seller's written statement of such objections, such resolution any accounting firm so selected shall be set forth in writing and such Draft Closing Date Balance Sheet, together with any revisions thereto agreed upon by and between the Purchaser and the Seller pursuant to this Section 2.06(c), shall be deemed to be the Closing Date Balance Sheet. The Purchaser and the Seller shall be entitled to prepay any amounts not in dispute or as to which the parties achieve final resolution (such amounts actually paid "Prepayments") plus interest at the Applicable Rate between the Closing Date and the date of such Prepayment. Any party making a Prepayment shall provide two (2) Business Days advanced written notice thereof to the other party.
(d) If the Purchaser and the Seller do not achieve a final resolution of the Seller's objections to the Draft Closing Date Balance Sheet within thirty (30) days after the Purchaser's receipt of the Seller's written statement of such objections, the parties will jointly engage an Independent Accountant to resolve any disputes remaining between the parties. The Purchaser and the Seller shall instruct the Independent Accountant to deliver its written determination to the Purchaser and the Seller no later than the thirtieth (30th) day after such dispute was referred to it. The Independent Accountant shall act to determine, based solely on the provisions of this Section 2.06, related definitions contained herein and the presentations by the Seller and the Purchaser, and not by independent review, only those issues still in dispute and only as to whether such amounts (i) were arrived at in conformity with the Agreed Upon Procedures, (ii) were arrived at in conformity with the terms of this Agreement or (iii) contain arithmetic error. The determination of the Independent Accountant (i) will be set forth in writing, (ii) for any item in dispute shall not be in excess of, nor less than, the greatest or lowest value, respectively, claimed by either party for that particular item, (iii) will state that the Draft Closing Date Balance Sheet has been prepared in accordance with the Agreed Upon Procedures and in conformity with this Agreement and (iv) will be conclusive and binding upon the partiesParties and not subject to the provisions of §§ 11(o) and 11(p) of this Agreement. The Purchaser will Buyer shall revise the Draft Closing Date Balance Sheet NWC as appropriate to reflect the resolution of any objections thereto pursuant to this Section 2.06(d§2(f)(ii), whereupon such Draft . The “Closing Date Balance Sheet, NWC” shall mean the Closing Date NWC together with any revisions thereto pursuant to this Section 2.06(d§2(f)(ii), shall be deemed to be the Closing Date Balance Sheet.
(e) In the event the parties submit any unresolved objections to the Independent Accountant for resolution as provided in Section 2.06(d) above, the Independent Accountant shall resolve each of such objections in favor of either the Purchaser or the Seller, and the Purchaser and Seller will share responsibility for the fees and expenses of the Independent Accountant as follows:
(i) if the Independent Accountant resolves all the remaining objections in favor of the Purchaser (the "Low Value"), the Seller will be responsible for all of the fees and expenses of the Independent Accountant;
(ii) if the Independent Accountant resolves all the remaining objections in favor of the Seller (the "High Value"), the Purchaser will be responsible for all of the fees and expenses of the Independent Accountant; and
(iii) if the Independent Accountant resolves some of the remaining objections in favor of the Purchaser and the rest of the remaining objections in favor of the Seller (the "Actual Value"), the Seller will be responsible for that fraction of the fees and expenses of the Independent Accountant equal to (x) the difference between the High Value and the Actual Value over (y) the difference between the High Value and the Low Value, and the Purchaser will be responsible for the remainder of the fees and expenses.
(f) The Purchaser will make the work papers and back-up materials and all other data used in preparing the Draft Closing Date Balance Sheet, and the books, records and financial statements of the Company and its Subsidiaries, available to Seller and its accountants and other representatives during normal business hours upon reasonable notice at any time during (i) the preparation by Purchaser of the Draft Closing Date Balance Sheet, (ii) the review by the Seller of the Draft Closing Date Balance Sheet and (iii) the resolution by the parties of any objections thereto. Similarly, the Seller will make the work papers and back-up materials and all other data used in connection with its objections to the Draft Closing Date Balance Sheet available to Purchaser and its accountants and other representatives during normal business hours upon reasonable notice at any time during (i) the review by the Purchaser of the written objection to the Draft Closing Date Balance Sheet and (ii) the resolution by the parties of such objection.
Appears in 1 contract
Preparation of Closing Date Balance Sheet. (a) Within forty-five (45) 60 days after ----------------------------------------- the Closing Date, the Purchaser will prepare and deliver to the Seller Shareholders a draft consolidated balance sheet with respect to Company (the "Draft Closing Date Balance SheetDRAFT BALANCE SHEET") for the Company as of the close start of business on the Closing Date, and a written calculation of the change in assets and liabilities from the Estimated Closing Date Balance Sheet (determined on a pro forma basis as though the parties had not consummated "CALCULATION"). Purchaser will prepare the Transactions) and prepared Draft Balance Sheet in accordance with GAAP, with the Agreed Upon Proceduresexceptions noted in SECTION 1.3(B)(III); provided, however, that the parties acknowledge and agree that (i) the reserve for warranty claims established on the Estimated Closing Date Balance Sheet shall not be adjusted, either up or down, on the Closing Date Balance Sheet (as defined in SECTION 1.4(C)), and (ii) the figure reflected on the Estimated Closing Date Balance Sheet for reserves for damaged inventory, obsolete inventory, shrinkage, excess and idle inventory, and discontinued lines shall not be adjusted, either up or down, on the Closing Date Balance Sheet, although the inventory figure on the Closing Date Balance Sheet may be adjusted for purchases and sales through August 22, 1997, and for returned goods.
(b) If, The Shareholders shall have 15 days after receiving the Draft Balance Sheet and the Calculation in which to deliver written notice of objection thereto to Purchaser. Failure to object in writing within forty-five (45) days following its receipt such 15 day period shall constitute the Shareholders' final and binding acceptance of the Draft Closing Date Balance Sheet, Sheet and the Seller does Calculation. If Purchaser and the Shareholders cannot dispute agree upon the Draft Closing Date Balance SheetSheet and the Calculation within 15 days after Purchaser receives the Shareholders' written notice of objection, such balance sheet if any, they shall retain a nationally recognized accounting firm (other than Ernst & Young, LLP) to resolve the remaining issues. Such accounting firm's fees and expenses shall be deemed to be paid one-half by Purchaser and one-half by the consolidated balance sheet of the Company on the Closing Date (the "Closing Date Balance Sheet")Shareholders.
(c) If the Seller has any objections to the Draft Closing Date Balance Sheet, it will deliver a detailed statement in writing describing its objections to the Purchaser within forty-five (45) days after receiving the Draft Closing Date Balance Sheet. Purchaser and Seller will use commercially reasonable efforts to resolve any such objections themselves. If Purchaser and Seller achieve a final resolution of the Seller's objections to the Draft Closing Date Balance Sheet within thirty (30) days after the Purchaser's receipt of the Seller's written statement of such objections, such resolution shall be set forth in writing and such Draft Closing Date Balance Sheet, together with any revisions thereto agreed upon by and between the Purchaser and the Seller pursuant to this Section 2.06(c), shall be deemed to be the Closing Date Balance Sheet. The Purchaser and the Seller shall be entitled to prepay any amounts not in dispute or as to which the parties achieve final resolution (such amounts actually paid "Prepayments") plus interest at the Applicable Rate between the Closing Date and the date of such Prepayment. Any party making a Prepayment shall provide two (2) Business Days advanced written notice thereof to the other party.
(d) If the Purchaser and the Seller do not achieve a final resolution of the Seller's objections to the Draft Closing Date Balance Sheet within thirty (30) days after the Purchaser's receipt of the Seller's written statement of such objections, the parties will jointly engage an Independent Accountant to resolve any disputes remaining between the parties. The Purchaser and the Seller shall instruct the Independent Accountant to deliver its written determination to the Purchaser and the Seller no later than the thirtieth (30th) day after such dispute was referred to it. The Independent Accountant shall act to determine, based solely on the provisions of this Section 2.06, related definitions contained herein and the presentations by the Seller and the Purchaser, and not by independent review, only those issues still in dispute and only as to whether such amounts (i) were arrived at in conformity with the Agreed Upon Procedures, (ii) were arrived at in conformity with the terms of this Agreement or (iii) contain arithmetic error. The determination of the Independent Accountant (i) will be set forth in writing, (ii) for any item in dispute shall not be in excess of, nor less than, the greatest or lowest value, respectively, claimed by either party for that particular item, (iii) will state that the Draft Closing Date Balance Sheet has been prepared in accordance with the Agreed Upon Procedures and in conformity with this Agreement and (iv) such accounting firm will be conclusive and binding upon the partiesparties and shall be reflected in a final consolidated balance sheet with respect to Company approved or prepared by such accountants in accordance with the principles set forth in SECTION 1.3(B)(III). The Purchaser will revise consolidated balance sheet of Company as at the Draft start of business on the Closing Date Balance Sheet to reflect and the resolution Calculation, whether determined by agreement of any objections thereto pursuant to this Section 2.06(d), whereupon the parties or by such Draft Closing Date Balance Sheet, together with any revisions thereto pursuant to this Section 2.06(d)accountants as the case may be, shall be deemed referred to be the Closing Date Balance Sheet.
(e) In the event the parties submit any unresolved objections to the Independent Accountant for resolution herein as provided in Section 2.06(d) above, the Independent Accountant shall resolve each of such objections in favor of either the Purchaser or the Seller, and the Purchaser and Seller will share responsibility for the fees and expenses of the Independent Accountant as follows:
(i) if the Independent Accountant resolves all the remaining objections in favor of the Purchaser (the "Low ValueCLOSING DATE BALANCE SHEET."), the Seller will be responsible for all of the fees and expenses of the Independent Accountant;
(ii) if the Independent Accountant resolves all the remaining objections in favor of the Seller (the "High Value"), the Purchaser will be responsible for all of the fees and expenses of the Independent Accountant; and
(iii) if the Independent Accountant resolves some of the remaining objections in favor of the Purchaser and the rest of the remaining objections in favor of the Seller (the "Actual Value"), the Seller will be responsible for that fraction of the fees and expenses of the Independent Accountant equal to (x) the difference between the High Value and the Actual Value over (y) the difference between the High Value and the Low Value, and the Purchaser will be responsible for the remainder of the fees and expenses.
(f) The Purchaser will make the work papers and back-up materials and all other data used in preparing the Draft Closing Date Balance Sheet, and the books, records and financial statements of the Company and its Subsidiaries, available to Seller and its accountants and other representatives during normal business hours upon reasonable notice at any time during (i) the preparation by Purchaser of the Draft Closing Date Balance Sheet, (ii) the review by the Seller of the Draft Closing Date Balance Sheet and (iii) the resolution by the parties of any objections thereto. Similarly, the Seller will make the work papers and back-up materials and all other data used in connection with its objections to the Draft Closing Date Balance Sheet available to Purchaser and its accountants and other representatives during normal business hours upon reasonable notice at any time during (i) the review by the Purchaser of the written objection to the Draft Closing Date Balance Sheet and (ii) the resolution by the parties of such objection.
Appears in 1 contract
Preparation of Closing Date Balance Sheet. (ai) Within forty-five (45) 30 days after the Closing Date, the Purchaser Buyer will prepare and deliver to the Seller a draft consolidated balance sheet (the "Draft Closing Date Balance Sheet") for the Company Seller as of the close of business on the Closing Date setting forth, inter alia, Accounts Receivable, inventory, and trade accounts payable of the Business (determined on a pro forma basis as though the parties Parties had not consummated the Transactions) and prepared transactions contemplated by this Agreement). Buyer will prepare the Draft Closing Date Balance Sheet in accordance with GAAP applied on a basis consistent with the Agreed Upon Procedurespreparation of the Financial Statements.
(bii) IfDuring the twenty (20) day period following receipt of the Draft Closing Balance Sheet, within forty-five (45) days following Seller and its receipt representatives shall be permitted to discuss the same with Buyer and its representatives. Buyer and its representatives shall reasonably cooperate with Seller to enable Seller to review the records necessary to determine the accuracy and fairness of the Draft Closing Date Balance Sheet, the Seller does not dispute the Draft Closing Date Balance Sheet, such balance sheet shall be deemed to be the consolidated balance sheet of the Company on the Closing Date (the "Closing Date Balance Sheet").
(c) Sheet for purposes hereof. If the Seller has any objections to the Draft Closing Date Balance Sheet, it will shall deliver a detailed statement in writing describing its objections to the Purchaser Buyer within forty-five twenty (4520) days after receiving the Draft Closing Date Balance Sheet. Purchaser Buyer and Seller will use commercially reasonable efforts shall thereafter negotiate in good faith to resolve any such objections themselves. If Purchaser and Seller achieve the Parties do not obtain a final resolution of the Seller's objections to the Draft Closing Date Balance Sheet within thirty ten (3010) days after Buyer has received the Purchaser's receipt of the Seller's written statement of such objections, such resolution however, Buyer and Seller shall select an accounting firm mutually acceptable to them to resolve any remaining objections. The determination of any accounting firm so selected shall be set forth in writing and such Draft Closing Date Balance Sheet, together with any revisions thereto agreed upon by and between the Purchaser and the Seller pursuant to this Section 2.06(c), shall be deemed to be the Closing Date Balance Sheet. The Purchaser and the Seller shall be entitled to prepay any amounts not in dispute or as to which the parties achieve final resolution (such amounts actually paid "Prepayments") plus interest at the Applicable Rate between the Closing Date and the date of such Prepayment. Any party making a Prepayment shall provide two (2) Business Days advanced written notice thereof to the other party.
(d) If the Purchaser and the Seller do not achieve a final resolution of the Seller's objections to the Draft Closing Date Balance Sheet within thirty (30) days after the Purchaser's receipt of the Seller's written statement of such objections, the parties will jointly engage an Independent Accountant to resolve any disputes remaining between the parties. The Purchaser and the Seller shall instruct the Independent Accountant to deliver its written determination to the Purchaser and the Seller no later than the thirtieth (30th) day after such dispute was referred to it. The Independent Accountant shall act to determine, based solely on the provisions of this Section 2.06, related definitions contained herein and the presentations by the Seller and the Purchaser, and not by independent review, only those issues still in dispute and only as to whether such amounts (i) were arrived at in conformity with the Agreed Upon Procedures, (ii) were arrived at in conformity with the terms of this Agreement or (iii) contain arithmetic error. The determination of the Independent Accountant (i) will be set forth in writing, (ii) for any item in dispute shall not be in excess of, nor less than, the greatest or lowest value, respectively, claimed by either party for that particular item, (iii) will state that the Draft Closing Date Balance Sheet has been prepared in accordance with the Agreed Upon Procedures and in conformity with this Agreement and (iv) will be conclusive and binding upon the partiesParties without any further right of appeal. The Purchaser will If the accounting firm discovers a discrepancy in Seller's favor equal to or greater than 5% of the amount in question, Buyer shall pay the fees and expenses of the accounting firm; otherwise, Seller shall pay such fees and expenses. Buyer shall revise the Draft Closing Date Balance Sheet as appropriate to reflect the resolution of any objections thereto pursuant to this Section 2.06(d2.3(b), whereupon such . The "Closing Date Balance Sheet" shall mean the Draft Closing Date Balance Sheet, Sheet together with any revisions thereto pursuant to this Section 2.06(d2.3(b), shall be deemed to be . To the extent any Royalty payments become due and payable while the Closing Date Balance Sheet.
(e) In Sheet remains unresolved, Buyer shall deposit with the event Escrow Agent all such Royalty payments until such disputes are resolved. The terms of the parties submit any unresolved objections escrow payments shall be comparable to the Independent Accountant terms of escrow for resolution Royalty payments as provided set forth in Section 2.06(d) above, the Independent Accountant shall resolve each of such objections in favor of either the Purchaser or the Seller, and the Purchaser and Seller will share responsibility for the fees and expenses of the Independent Accountant as follows:
(i) if the Independent Accountant resolves all the remaining objections in favor of the Purchaser (the "Low Value"), the Seller will be responsible for all of the fees and expenses of the Independent Accountant;
(ii) if the Independent Accountant resolves all the remaining objections in favor of the Seller (the "High Value"), the Purchaser will be responsible for all of the fees and expenses of the Independent Accountant; and
(iii) if the Independent Accountant resolves some of the remaining objections in favor of the Purchaser and the rest of the remaining objections in favor of the Seller (the "Actual Value"), the Seller will be responsible for that fraction of the fees and expenses of the Independent Accountant equal to (x) the difference between the High Value and the Actual Value over (y) the difference between the High Value and the Low Value, and the Purchaser will be responsible for the remainder of the fees and expenses10.4 below.
(f) The Purchaser will make the work papers and back-up materials and all other data used in preparing the Draft Closing Date Balance Sheet, and the books, records and financial statements of the Company and its Subsidiaries, available to Seller and its accountants and other representatives during normal business hours upon reasonable notice at any time during (i) the preparation by Purchaser of the Draft Closing Date Balance Sheet, (ii) the review by the Seller of the Draft Closing Date Balance Sheet and (iii) the resolution by the parties of any objections thereto. Similarly, the Seller will make the work papers and back-up materials and all other data used in connection with its objections to the Draft Closing Date Balance Sheet available to Purchaser and its accountants and other representatives during normal business hours upon reasonable notice at any time during (i) the review by the Purchaser of the written objection to the Draft Closing Date Balance Sheet and (ii) the resolution by the parties of such objection.
Appears in 1 contract
Preparation of Closing Date Balance Sheet. (ai) Within forty-five (45) 60 days after the Closing Date, the Purchaser Buyer will prepare and deliver to the Seller Sellers a draft consolidated balance sheet (the "“Draft Closing Date Balance Sheet"”) for the Company Targets as of the close of business on the Closing Date (determined on a pro forma basis as though the parties Parties had not consummated the Transactions) and prepared in accordance with the Agreed Upon Procedures.
(b) If, within forty-five (45) days following its receipt of transactions contemplated by this Agreement). The Buyer will prepare the Draft Closing Date Balance Sheet, Sheet in accordance with GAAP applied on a basis consistent with the Seller does not dispute the Draft Closing Date Balance Sheet, such balance sheet shall be deemed to be the consolidated balance sheet preparation of the Company on the Closing Date (the "Closing Date Balance Sheet")Financial Statements.
(cii) If the Seller has Sellers have any objections to the Draft Closing Date Balance Sheet, it they will deliver a detailed statement in writing describing its their objections to the Purchaser Buyer within forty-five (45) 30 days after receiving the Draft Closing Date Balance Sheet. Purchaser The Buyer and Seller the Sellers will use commercially reasonable efforts to resolve any such objections themselves. If Purchaser and Seller achieve the Parties do not obtain a final resolution of the Seller's objections to the Draft Closing Date Balance Sheet within thirty (30) 30 days after the Purchaser's receipt of Buyer has received the Seller's written statement of such objections, such resolution shall however, the Buyer and the Sellers will select an accounting firm mutually acceptable to them to resolve any remaining objections. If the Buyer and the Sellers are unable to agree on the choice of an accounting firm, they will select a nationally-recognized accounting firm by lot (after excluding their respective regular outside accounting firms). The determination of any accounting firm so selected will be set forth in writing and such Draft Closing Date Balance Sheet, together with any revisions thereto agreed upon by and between the Purchaser and the Seller pursuant to this Section 2.06(c), shall be deemed to be the Closing Date Balance Sheet. The Purchaser and the Seller shall be entitled to prepay any amounts not in dispute or as to which the parties achieve final resolution (such amounts actually paid "Prepayments") plus interest at the Applicable Rate between the Closing Date and the date of such Prepayment. Any party making a Prepayment shall provide two (2) Business Days advanced written notice thereof to the other party.
(d) If the Purchaser and the Seller do not achieve a final resolution of the Seller's objections to the Draft Closing Date Balance Sheet within thirty (30) days after the Purchaser's receipt of the Seller's written statement of such objections, the parties will jointly engage an Independent Accountant to resolve any disputes remaining between the parties. The Purchaser and the Seller shall instruct the Independent Accountant to deliver its written determination to the Purchaser and the Seller no later than the thirtieth (30th) day after such dispute was referred to it. The Independent Accountant shall act to determine, based solely on the provisions of this Section 2.06, related definitions contained herein and the presentations by the Seller and the Purchaser, and not by independent review, only those issues still in dispute and only as to whether such amounts (i) were arrived at in conformity with the Agreed Upon Procedures, (ii) were arrived at in conformity with the terms of this Agreement or (iii) contain arithmetic error. The determination of the Independent Accountant (i) will be set forth in writing, (ii) for any item in dispute shall not be in excess of, nor less than, the greatest or lowest value, respectively, claimed by either party for that particular item, (iii) will state that the Draft Closing Date Balance Sheet has been prepared in accordance with the Agreed Upon Procedures and in conformity with this Agreement and (iv) will be conclusive and binding upon the partiesParties. The Purchaser Buyer will revise the Draft Closing Date Balance Sheet as appropriate to reflect the resolution of any objections thereto pursuant to this Section 2.06(d), whereupon such Draft Closing Date Balance Sheet, together with any revisions thereto pursuant to this Section 2.06(d), shall be deemed to be the Closing Date Balance Sheet.
(e) In the event the parties submit any unresolved objections to the Independent Accountant for resolution as provided in Section 2.06(d) above, the Independent Accountant shall resolve each of such objections in favor of either the Purchaser or the Seller, and the Purchaser and Seller will share responsibility for the fees and expenses of the Independent Accountant as follows:
(i) if the Independent Accountant resolves all the remaining objections in favor of the Purchaser (the "Low Value"), the Seller will be responsible for all of the fees and expenses of the Independent Accountant;
(ii) if the Independent Accountant resolves all the remaining objections in favor of the Seller (the "High Value"), the Purchaser will be responsible for all of the fees and expenses of the Independent Accountant; and
(iii) if the Independent Accountant resolves some of the remaining objections in favor of the Purchaser and the rest of the remaining objections in favor of the Seller (the "Actual Value"), the Seller will be responsible for that fraction of the fees and expenses of the Independent Accountant equal to (x) the difference between the High Value and the Actual Value over (y) the difference between the High Value and the Low Value, and the Purchaser will be responsible for the remainder of the fees and expenses.
(f) The Purchaser will make the work papers and back-up materials and all other data used in preparing the Draft Closing Date Balance Sheet, and the books, records and financial statements of the Company and its Subsidiaries, available to Seller and its accountants and other representatives during normal business hours upon reasonable notice at any time during (i) the preparation by Purchaser of the Draft Closing Date Balance Sheet, (ii) the review by the Seller of the Draft Closing Date Balance Sheet and (iii) the resolution by the parties of any objections thereto. Similarly, the Seller will make the work papers and back-up materials and all other data used in connection with its objections to the Draft Closing Date Balance Sheet available to Purchaser and its accountants and other representatives during normal business hours upon reasonable notice at any time during (i) the review by the Purchaser of the written objection to the Draft Closing Date Balance Sheet and (ii) the resolution by the parties of such objection.this
Appears in 1 contract
Samples: Purchase Agreement
Preparation of Closing Date Balance Sheet. (a) Within forty-five (45) 30 days after the Closing DateClosing, the Seller (in cooperation with Finance Company and Purchaser) shall prepare and provide to Purchaser will deliver to the Seller and Purchaser's Accountants a draft consolidated balance sheet (the "Draft Closing Date Balance Sheet and a draft Adjusted Closing Date Balance Sheet") for the Company as of the close of business on the Closing Date (determined on a pro forma basis as though the parties had not consummated the Transactions) and prepared in accordance with the Agreed Upon Procedures.
(b) If, within forty-five (45) days following its receipt of the Draft Closing Date Balance Sheet, the Seller does not dispute the Draft Closing Date Balance Sheet, such balance sheet shall be deemed to be the consolidated balance sheet of the Company on the Closing Date (the "Closing Date Balance Sheet").
(c) If the Seller has any objections to the Draft Closing Date Balance Sheet, it will deliver a detailed statement in writing describing its objections to the Purchaser within forty-five (45) days after receiving the Draft Closing Date Balance Sheet. Purchaser and Seller will use commercially reasonable efforts to resolve any such objections themselves. If Purchaser and Seller achieve a final resolution of the Seller's objections to the Draft Closing Date Balance Sheet within thirty (30) days after the Purchaser's receipt of the Seller's written statement of such objections, such resolution shall be set forth in writing and such Draft Closing Date Balance Sheet, together with any revisions thereto agreed upon by and between the Purchaser and the Seller pursuant to this Section 2.06(c), shall be deemed to be the Closing Date Balance Sheet. The Purchaser and the Seller shall be entitled to prepay any amounts not in dispute or as to which the parties achieve final resolution (such amounts actually paid "Prepayments") plus interest at the Applicable Rate between the Closing Date and the date of such Prepayment. Any party making a Prepayment shall provide two (2) Business Days advanced written notice thereof to the other party.
(d) If the Purchaser and the Seller do not achieve a final resolution of the Seller's objections to the Draft Closing Date Balance Sheet within thirty (30) days after the Purchaser's receipt of the Seller's written statement of such objections, the parties will jointly engage an Independent Accountant to resolve any disputes remaining between the parties. The Purchaser and the Seller shall instruct the Independent Accountant to deliver its written determination to the Purchaser and the Seller no later than the thirtieth (30th) day after such dispute was referred to it. The Independent Accountant shall act to determine, based solely on the provisions of this Section 2.06, related definitions contained herein and the presentations by the Seller and the Purchaser, and not by independent review, only those issues still in dispute and only as to whether such amounts (i) were arrived at in conformity with the Agreed Upon Procedures, (ii) were arrived at in conformity with the terms of this Agreement or (iii) contain arithmetic error. The determination of the Independent Accountant (i) will be set forth in writing, (ii) for any item in dispute shall not be in excess of, nor less than, the greatest or lowest value, respectively, claimed by either party for that particular item, (iii) will state that the Draft Closing Date Balance Sheet which has been prepared in accordance with the Agreed Upon Procedures Accounting Principles and with generally accepted accounting principles, applied on a basis consistent with those used in conformity with this Agreement the preparation of the balance sheet of Finance Company dated as of September 30, 1996 included in the Financial Statements (including the accounting methods and practices used by Finance Company in the preparation of such balance sheet); provided however that in the event of a conflict, the Accounting Principles shall have priority, followed by generally accepted accounting principles and lastly the accounting principles used in the September 30, 1996 balance sheet; and
(ivii) will which shall disregard any modification or adjustment which would (x) reflect Purchaser's existing or future plans to modify or adjust the business, the 338(h)(10) Elections to be conclusive made pursuant to Section 6.1 hereof, and binding upon operations or accounting practices of Finance Company after Closing or (y) relate to the parties. The recording of the acquisition by Purchaser;
(b) Within 120 days after receipt of such draft balance sheets, Purchaser will revise the Draft shall provide to Seller and Seller's Accountants a proposed audited Closing Date Balance Sheet to reflect the resolution of any objections thereto pursuant to this Section 2.06(d), whereupon such Draft and a proposed audited Adjusted Closing Date Balance SheetSheet which has been audited by Purchaser's Accountants in accordance with generally accepted auditing standards, together with any revisions thereto pursuant sufficient to this Section 2.06(d), shall be deemed permit Purchaser's Accountants to be render its opinion to the effect that the Closing Date Balance SheetSheet and the Adjusted Closing Date Balance Sheet fairly presents the financial position of Finance Company at the Closing Date in conformity with the Accounting Principles, and to the extent consistent with the Accounting Principles generally accepted accounting principles and, to the extent not inconsistent with any of the foregoing, the accounting principles used in the preparation of the September 30, 1996 balance sheet of Finance Company.
(ec) Seller (in consultation with Seller's Accountants) shall have the opportunity to review the proposed audited Closing Date Balance Sheet and proposed audited Adjusted Closing Date Balance Sheet (together with Purchaser's Accountants' working papers, including any portion thereof pertaining to any proposed adjustment) with Purchaser and Purchaser's Accountants during the 30 Business Days following their receipt thereof. Any dispute regarding the balance sheets or their preparation in accordance with the terms of this Agreement that the parties hereto cannot resolve within 45 days of the delivery of the proposed audited balance sheets shall be determined by a third major independent accounting firm selected by Purchaser's Accountants and Seller's Accountants (the "Selected Accounting Firm"). In the event the parties submit any unresolved objections to the Independent Accountant for resolution as provided in Section 2.06(d) above, the Independent Accountant shall resolve each of such objections in favor of either the a settlement proceeding, Purchaser or the Seller, and the Purchaser and Seller will share responsibility for the fees and expenses of the Independent Accountant as follows:
(i) if the Independent Accountant resolves all the remaining objections in favor of the Purchaser (the "Low Value"), the Seller will shall be responsible for all fees of Purchaser's Accountants and all expenses incurred by such firm in connection with such proceeding, Seller shall be responsible for all fees of Seller's Accountants and all expenses incurred by such firm in connection with such proceeding, and Purchaser and Seller shall each be responsible for one-half of the fees and expenses of the Independent Accountant;
(ii) if the Independent Accountant resolves all the remaining objections Selected Accounting Firm incurred in favor of the Seller (the "High Value"), the Purchaser will be responsible for all of the fees and expenses of the Independent Accountant; and
(iii) if the Independent Accountant resolves some of the remaining objections in favor of the Purchaser and the rest of the remaining objections in favor of the Seller (the "Actual Value"), the Seller will be responsible for that fraction of the fees and expenses of the Independent Accountant equal to (x) the difference between the High Value and the Actual Value over (y) the difference between the High Value and the Low Value, and the Purchaser will be responsible for the remainder of the fees and expensesconnection with such settlement proceedings.
(fd) The Purchaser will make the work papers and back-up materials and all other data used in preparing the Draft Closing Date Balance Sheet, and the books, records and financial statements of the Company and its Subsidiaries, available to Seller and its accountants Purchaser shall use their best efforts to cause Purchaser's Accountants and Seller's Accountants to cooperate with each other representatives during normal business hours upon reasonable notice at any time during (i) the preparation by Purchaser of the Draft Closing Date Balance Sheet, (ii) the review by the Seller of the Draft Closing Date Balance Sheet and (iii) the resolution by the parties of any objections thereto. Similarly, the Seller will make the work papers and back-up materials and all other data used in connection with all of their activities undertaken in connection with this Agreement. Seller shall cause Seller's Accountants to make its objections to work papers from the Draft Closing Date Balance Sheet audit of the Finance Company's December 31, 1995 Financial Statements available to Purchaser and its accountants and other representatives during normal business hours upon reasonable notice at any time during (i) the review by the Purchaser of the written objection to the Draft Closing Date Balance Sheet and (ii) the resolution by the parties of such objectionPurchaser's Accountants.
Appears in 1 contract
Samples: Stock Purchase Agreement (Ziegler Leasing Corp /Wi)
Preparation of Closing Date Balance Sheet. (a) Within No later than forty-five (45) days after subsequent to the Closing Date, the Purchaser will Sellers shall deliver to the Seller Buyer a draft consolidated Closing Date balance sheet (audited by KPMG Peat Marwick, Sellers' independent public accountants, in accordance with United States generally accepted accounting principles, which reflects only the "Draft Closing Date Balance Sheet") for Purchased Assets and the Company Assumed Liabilities as of the close opening of business on the Closing Date (determined as purchased and sold pursuant to each of the Sale Agreements. The Closing Date balance sheet will be based on a pro forma roll forward from the Year End Balance Sheet of Sellers and shall be prepared on a basis consistent with the Year End Balance Sheet. Buyer shall cooperate with Sellers and their representatives in the preparation of the Closing Date balance sheet, and shall furnish such information as though may be reasonably requested in connection therewith. Within fifteen (15) business days after delivery of the Closing Date balance sheet, Buyer shall notify Sellers in writing whether or not Buyer disputes any part of such Closing Date balance sheet. If no notification is received by Sellers within such fifteen (15) business day period, Buyer shall be deemed to have accepted such Closing Date balance sheet. If Buyer does dispute any aspect of the Closing Date balance sheet, Buyer's dispute notice shall include reasonable detail regarding the nature and reasons for such dispute, and the parties had not consummated shall thereafter negotiate in good faith to reach a mutually acceptable resolution as soon as reasonably possible. If Buyer and Sellers are unable to resolve such dispute within fifteen (15) business days after receipt by Sellers of Buyer's written dispute notice, then the Transactions) and prepared in accordance with the Agreed Upon Procedures.
(b) If, within forty-five (45) days following its receipt determination of the Draft Closing Date Balance Sheet, the Seller does not dispute the Draft Closing Date Balance Sheet, such balance sheet shall be deemed promptly submitted to be the consolidated balance sheet a third party accounting firm of the Company on international standing, which shall resolve any disputes regarding the Closing Date (balance sheet. The terms of appointment and engagement of such third party accounting firm shall be as agreed upon between the Sellers and Buyer. The determination of such third party accounting firm regarding the Closing Date balance sheet shall be final and binding on Buyer and Sellers, and the expenses of such third party accounting firm in making such determination shall be borne equally by Buyer, on the one hand, and Sellers, on the other hand. The Closing Date balance sheet as finally agreed to by the parties or as determined by such third party accounting firm pursuant to this section is referred to as the "Closing Date Balance Sheet.").
(c) If the Seller has any objections to the Draft Closing Date Balance Sheet, it will deliver a detailed statement in writing describing its objections to the Purchaser within forty-five (45) days after receiving the Draft Closing Date Balance Sheet. Purchaser and Seller will use commercially reasonable efforts to resolve any such objections themselves. If Purchaser and Seller achieve a final resolution of the Seller's objections to the Draft Closing Date Balance Sheet within thirty (30) days after the Purchaser's receipt of the Seller's written statement of such objections, such resolution shall be set forth in writing and such Draft Closing Date Balance Sheet, together with any revisions thereto agreed upon by and between the Purchaser and the Seller pursuant to this Section 2.06(c), shall be deemed to be the Closing Date Balance Sheet. The Purchaser and the Seller shall be entitled to prepay any amounts not in dispute or as to which the parties achieve final resolution (such amounts actually paid "Prepayments") plus interest at the Applicable Rate between the Closing Date and the date of such Prepayment. Any party making a Prepayment shall provide two (2) Business Days advanced written notice thereof to the other party.
(d) If the Purchaser and the Seller do not achieve a final resolution of the Seller's objections to the Draft Closing Date Balance Sheet within thirty (30) days after the Purchaser's receipt of the Seller's written statement of such objections, the parties will jointly engage an Independent Accountant to resolve any disputes remaining between the parties. The Purchaser and the Seller shall instruct the Independent Accountant to deliver its written determination to the Purchaser and the Seller no later than the thirtieth (30th) day after such dispute was referred to it. The Independent Accountant shall act to determine, based solely on the provisions of this Section 2.06, related definitions contained herein and the presentations by the Seller and the Purchaser, and not by independent review, only those issues still in dispute and only as to whether such amounts (i) were arrived at in conformity with the Agreed Upon Procedures, (ii) were arrived at in conformity with the terms of this Agreement or (iii) contain arithmetic error. The determination of the Independent Accountant (i) will be set forth in writing, (ii) for any item in dispute shall not be in excess of, nor less than, the greatest or lowest value, respectively, claimed by either party for that particular item, (iii) will state that the Draft Closing Date Balance Sheet has been prepared in accordance with the Agreed Upon Procedures and in conformity with this Agreement and (iv) will be conclusive and binding upon the parties. The Purchaser will revise the Draft Closing Date Balance Sheet to reflect the resolution of any objections thereto pursuant to this Section 2.06(d), whereupon such Draft Closing Date Balance Sheet, together with any revisions thereto pursuant to this Section 2.06(d), shall be deemed to be the Closing Date Balance Sheet.
(e) In the event the parties submit any unresolved objections to the Independent Accountant for resolution as provided in Section 2.06(d) above, the Independent Accountant shall resolve each of such objections in favor of either the Purchaser or the Seller, and the Purchaser and Seller will share responsibility for the fees and expenses of the Independent Accountant as follows:
(i) if the Independent Accountant resolves all the remaining objections in favor of the Purchaser (the "Low Value"), the Seller will be responsible for all of the fees and expenses of the Independent Accountant;
(ii) if the Independent Accountant resolves all the remaining objections in favor of the Seller (the "High Value"), the Purchaser will be responsible for all of the fees and expenses of the Independent Accountant; and
(iii) if the Independent Accountant resolves some of the remaining objections in favor of the Purchaser and the rest of the remaining objections in favor of the Seller (the "Actual Value"), the Seller will be responsible for that fraction of the fees and expenses of the Independent Accountant equal to (x) the difference between the High Value and the Actual Value over (y) the difference between the High Value and the Low Value, and the Purchaser will be responsible for the remainder of the fees and expenses.
(f) The Purchaser will make the work papers and back-up materials and all other data used in preparing the Draft Closing Date Balance Sheet, and the books, records and financial statements of the Company and its Subsidiaries, available to Seller and its accountants and other representatives during normal business hours upon reasonable notice at any time during (i) the preparation by Purchaser of the Draft Closing Date Balance Sheet, (ii) the review by the Seller of the Draft Closing Date Balance Sheet and (iii) the resolution by the parties of any objections thereto. Similarly, the Seller will make the work papers and back-up materials and all other data used in connection with its objections to the Draft Closing Date Balance Sheet available to Purchaser and its accountants and other representatives during normal business hours upon reasonable notice at any time during (i) the review by the Purchaser of the written objection to the Draft Closing Date Balance Sheet and (ii) the resolution by the parties of such objection.
Appears in 1 contract
Samples: Coordination and Adjustment Agreement (St Jude Medical Inc)
Preparation of Closing Date Balance Sheet. (ai) Within forty-five ninety (4590) days after the Closing Date, members of the Purchaser legacy AsiaInfo and legacy Linkage finance teams within the AsiaInfo-Linkage finance department will prepare in good faith and deliver to the Seller Shareholders’ Agent, on behalf of the Legacy Linkage Shareholders, a draft consolidated balance sheet (the "“Draft Closing Date Balance Sheet"”) for the Company as of the close of business on the Closing Date, upon which AsiaInfo shall include AsiaInfo’s calculation of (A) the Working Capital as of the Closing Date (determined on a pro forma basis as though the parties had not consummated the Transactions“Actual Working Capital”) and prepared (B) the Net Debt as of the Closing Date (the “Actual Net Debt”). Members of the legacy AsiaInfo and legacy Linkage finance teams within the AsiaInfo-Linkage finance department will prepare the Draft Closing Date Balance Sheet in accordance with GAAP, applied on a basis consistent with the Agreed Upon Procedures.
preparation of the Utah Financial Statements; provided, however, that assets, liabilities, gains, losses, revenues, and expenses in interim periods or as of dates other than year-end (bwhich normally are determined through the application of so-called interim accounting conventions or procedures) Ifshall be determined, within forty-five (45) days following its receipt for purposes of the Draft Closing Date Balance Sheet, through full application of the Seller does not dispute procedures used in preparing the Draft Closing Date Balance Sheet, such most recent reviewed balance sheet shall be deemed to be included within the consolidated balance sheet of the Company on the Closing Date (the "Closing Date Balance Sheet")Linkage Financial Statements.
(cii) If the Seller Shareholders’ Agent has any objections to the Draft Closing Date Balance Sheet, it will the Shareholders’ Agent shall deliver a detailed statement in writing describing its such objections to the Purchaser AsiaInfo within forty-five thirty (4530) days after receiving the Draft Closing Date Balance Sheet. Purchaser AsiaInfo and Seller will the Shareholders’ Agent shall use commercially reasonable efforts to resolve any such objections themselves. If Purchaser AsiaInfo and Seller achieve the Shareholders’ Agent do not obtain a final resolution of the Seller's objections to the Draft Closing Date Balance Sheet within thirty (30) days after AsiaInfo has received the Purchaser's receipt of the Seller's written statement of such objections, such resolution shall be set forth in writing and such Draft Closing Date Balance Sheethowever, together with any revisions thereto agreed upon by and between the Purchaser AsiaInfo and the Seller pursuant to this Section 2.06(c), Shareholders’ Agent shall be deemed to be the Closing Date Balance Sheet. The Purchaser and the Seller shall be entitled to prepay any amounts not in dispute or as to which the parties achieve final resolution (such amounts actually paid "Prepayments") plus interest at the Applicable Rate between the Closing Date and the date of such Prepayment. Any party making a Prepayment shall provide two (2) Business Days advanced written notice thereof to the other party.
(d) If the Purchaser and the Seller do not achieve a final resolution of the Seller's objections to the Draft Closing Date Balance Sheet within thirty (30) days after the Purchaser's receipt of the Seller's written statement of such objections, the parties will jointly engage an Independent Accountant to resolve any disputes remaining between the parties. The Purchaser and the Seller shall instruct the Independent Accountant to deliver its written determination to the Purchaser and the Seller no later than the thirtieth (30th) day after submit such dispute was referred to itan Accounting Referee. The Independent Accountant AsiaInfo shall act to determine, based solely on the provisions of this Section 2.06, related definitions contained herein and the presentations by the Seller and the Purchaser, and not by independent review, only those issues still in dispute and only as to whether such amounts (i) were arrived at in conformity with the Agreed Upon Procedures, (ii) were arrived at in conformity with the terms of this Agreement or (iii) contain arithmetic error. The determination of the Independent Accountant (i) will be set forth in writing, (ii) for any item in dispute shall not be in excess of, nor less than, the greatest or lowest value, respectively, claimed by either party for that particular item, (iii) will state that the Draft Closing Date Balance Sheet has been prepared in accordance with the Agreed Upon Procedures and in conformity with this Agreement and (iv) will be conclusive and binding upon the parties. The Purchaser will revise the Draft Closing Date Balance Sheet as appropriate to reflect the resolution of any objections thereto pursuant to this Section 2.06(d1.9(a)(ii), whereupon such . The “Closing Date Balance Sheet” shall mean the Draft Closing Date Balance Sheet, Sheet together with any revisions thereto pursuant to this Section 2.06(d1.9(a)(ii), shall be deemed to be the Closing Date Balance Sheet.
(e) In the event the parties submit any unresolved objections to the Independent Accountant for resolution as provided in Section 2.06(d) above, the Independent Accountant shall resolve each of such objections in favor of either the Purchaser or the Seller, and the Purchaser and Seller will share responsibility for the fees and expenses of the Independent Accountant as follows:
(i) if the Independent Accountant resolves all the remaining objections in favor of the Purchaser (the "Low Value"), the Seller will be responsible for all of the fees and expenses of the Independent Accountant;
(ii) if the Independent Accountant resolves all the remaining objections in favor of the Seller (the "High Value"), the Purchaser will be responsible for all of the fees and expenses of the Independent Accountant; and
(iii) if the Independent Accountant resolves some of the remaining objections in favor of the Purchaser and the rest of the remaining objections in favor of the Seller (the "Actual Value"), the Seller will be responsible for that fraction of the fees and expenses of the Independent Accountant equal to (x) the difference between the High Value and the Actual Value over (y) the difference between the High Value and the Low Value, and the Purchaser will be responsible for the remainder of the fees and expenses.
(f) The Purchaser will make the work papers and back-up materials and all other data used in preparing the Draft Closing Date Balance Sheet, and the books, records and financial statements of the Company and its Subsidiaries, available to Seller and its accountants and other representatives during normal business hours upon reasonable notice at any time during (i) the preparation by Purchaser of the Draft Closing Date Balance Sheet, (ii) the review by the Seller of the Draft Closing Date Balance Sheet and (iii) the resolution by the parties of any objections thereto. Similarly, the Seller will make the work papers and back-up materials and all other data used in connection with its objections to the Draft Closing Date Balance Sheet available to Purchaser and its accountants and other representatives during normal business hours upon reasonable notice at any time during (i) the review by the Purchaser of the written objection to the Draft Closing Date Balance Sheet and (ii) the resolution by the parties of such objection.
Appears in 1 contract
Samples: Business Combination Agreement (Asiainfo Holdings Inc)
Preparation of Closing Date Balance Sheet. (ai) Within forty-five (45) 45 days after the Closing Date, the Purchaser TIMET will prepare and deliver to the Seller AJM a draft consolidated balance sheet (the "Draft Closing Date Balance Sheet") for the Company as of the close of business on the Closing Date. The Closing Date (Balance Sheet will be determined on a pro forma basis as though the parties Parties had not consummated the Transactions) and prepared transactions contemplated by this Agreement, including without limitation the redemption described in section6(a)(v). TIMET will prepare the Draft Closing Date Balance Sheet in accordance with the Agreed Upon Procedures.
Post Closing Adjustment Schedule attached to this Agreement and with GAAP, applied on a basis consistent (bwith respect to the treatment of AJM Assets, THT Assets, AJM Liabilities and THT Liabilities) Ifwith the preparation of the Financial Statements to the extent GAAP was properly followed in such preparation, within fortyexcept as set forth on the Post Closing Adjustment Schedule attached to this Agreement; provided, however, that assets, liabilities, gains, losses, revenues, and expenses in interim periods or as of dates other than year-five end (45which normally are determined through the application of so-called interim accounting conventions or procedures) days following its receipt will be determined, for purposes of the Draft Closing Date Balance Sheet, the Seller does not dispute the Draft Closing Date Balance Sheet, such balance sheet shall be deemed to be the consolidated balance sheet through full application of the Company on procedures used in preparing the Closing Date (Most Recent Fiscal Year End Balance Sheet of AJM and THT included within the "Closing Date Balance Sheet")Financial Statements.
(cii) If the Seller AJM has any objections to the Draft Closing Date Balance Sheet, it will deliver a detailed statement in writing describing its such objections to the Purchaser TIMET within forty-five (45) 20 days after receiving the Draft Closing Date Balance Sheet. Purchaser TIMET and Seller AJM will use commercially reasonable efforts to resolve any such objections themselves. If Purchaser and Seller achieve the Parties do not obtain a final resolution of the Seller's objections to the Draft Closing Date Balance Sheet within thirty (30) 30 days after TIMET has received the Purchaser's receipt of the Seller's written statement of such objections, such resolution shall however, TIMET and AJM will retain Arthur Andersen & Co. to resolve any remaining objections. The determination of Arthur Andersen & Co. will be set forth in writing and such Draft Closing Date Balance Sheet, together with any revisions thereto agreed upon by and between the Purchaser and the Seller pursuant to this Section 2.06(c), shall be deemed to be the Closing Date Balance Sheet. The Purchaser and the Seller shall be entitled to prepay any amounts not in dispute or as to which the parties achieve final resolution (such amounts actually paid "Prepayments") plus interest at the Applicable Rate between the Closing Date and the date of such Prepayment. Any party making a Prepayment shall provide two (2) Business Days advanced written notice thereof to the other party.
(d) If the Purchaser and the Seller do not achieve a final resolution of the Seller's objections to the Draft Closing Date Balance Sheet within thirty (30) days after the Purchaser's receipt of the Seller's written statement of such objections, the parties will jointly engage an Independent Accountant to resolve any disputes remaining between the parties. The Purchaser and the Seller shall instruct the Independent Accountant to deliver its written determination to the Purchaser and the Seller no later than the thirtieth (30th) day after such dispute was referred to it. The Independent Accountant shall act to determine, based solely on the provisions of this Section 2.06, related definitions contained herein and the presentations by the Seller and the Purchaser, and not by independent review, only those issues still in dispute and only as to whether such amounts (i) were arrived at in conformity with the Agreed Upon Procedures, (ii) were arrived at in conformity with the terms of this Agreement or (iii) contain arithmetic error. The determination of the Independent Accountant (i) will be set forth in writing, (ii) for any item in dispute shall not be in excess of, nor less than, the greatest or lowest value, respectively, claimed by either party for that particular item, (iii) will state that the Draft Closing Date Balance Sheet has been prepared in accordance with the Agreed Upon Procedures and in conformity with this Agreement and (iv) will be conclusive xx xxnxxxxxxx and binding upon the partiesParties. The Purchaser TIMET will revise the Draft Closing Date Balance Sheet Xxxx Bxxxxxx Xheet as appropriate to reflect the resolution of any objections thereto pursuant to this Section 2.06(dsection2(g), whereupon such . The "Closing Date Balance Sheet" shall mean the Draft Closing Date Balance Sheet, Sheet together with any revisions thereto pursuant to this Section 2.06(dsection2(g), shall be deemed to be the Closing Date Balance Sheet.
(e) In the event the parties submit any unresolved objections to the Independent Accountant for resolution as provided in Section 2.06(d) above, the Independent Accountant shall resolve each of such objections in favor of either the Purchaser or the Seller, and the Purchaser and Seller will share responsibility for the fees and expenses of the Independent Accountant as follows:
(i) if the Independent Accountant resolves all the remaining objections in favor of the Purchaser (the "Low Value"), the Seller will be responsible for all of the fees and expenses of the Independent Accountant;
(ii) if the Independent Accountant resolves all the remaining objections in favor of the Seller (the "High Value"), the Purchaser will be responsible for all of the fees and expenses of the Independent Accountant; and
(iii) if the Independent Accountant resolves some of the remaining objections in favor of the Purchaser and the rest of the remaining objections in favor of the Seller (the "Actual Value"), the Seller will be responsible for that fraction of the fees and expenses of the Independent Accountant equal to (x) the difference between the High Value and the Actual Value over (y) the difference between the High Value and the Low Value, and the Purchaser will be responsible for the remainder of the fees and expenses.
(f) The Purchaser will make the work papers and back-up materials and all other data used in preparing the Draft Closing Date Balance Sheet, and the books, records and financial statements of the Company and its Subsidiaries, available to Seller and its accountants and other representatives during normal business hours upon reasonable notice at any time during (i) the preparation by Purchaser of the Draft Closing Date Balance Sheet, (ii) the review by the Seller of the Draft Closing Date Balance Sheet and (iii) the resolution by the parties of any objections thereto. Similarly, the Seller will make the work papers and back-up materials and all other data used in connection with its objections to the Draft Closing Date Balance Sheet available to Purchaser and its accountants and other representatives during normal business hours upon reasonable notice at any time during (i) the review by the Purchaser of the written objection to the Draft Closing Date Balance Sheet and (ii) the resolution by the parties of such objection.
Appears in 1 contract
Preparation of Closing Date Balance Sheet. (a) Within forty-five (45) 60 days after the Closing Date, the Purchaser Shareholders will prepare and deliver to the Seller Buyer a draft consolidated balance sheet (the "Draft Closing Date Balance Sheet") for the Company as of the close of business on the Closing Date (determined on a pro forma basis as though the parties had not consummated the Transactions) and prepared in accordance with the Agreed Upon Procedures.
(b) If, within forty-five (45) days following its receipt of the Draft Closing Date Balance Sheet, the Seller does not dispute the Draft Closing Date Balance Sheet, such balance sheet shall be deemed to be the consolidated balance sheet of the Company on the Closing Date (the "Closing Date Balance Sheet").
(c) If the Seller has any objections to the Draft Closing Date Balance Sheet, it will deliver a detailed statement in writing describing its objections to the Purchaser within forty-five (45) days after receiving the Draft Closing Date Balance Sheet. Purchaser The Shareholders will prepare the draft Closing Date Balance Sheet on a basis consistent with the preparation of their July 1996 financial statements, attached as Exhibit 1.01(b) (a), along with the adjustments agreed to by all Parties prior to the Closing. Buyer shall give Shareholders and Seller their accountants, employees and other agents reasonable access to the books, records and assets of the Purchased Company for purposes of preparing the draft Closing Date Balance Sheet;
(b) If the draft Closing Date Balance Sheet is not acceptable to Buyer, the Buyer will deliver to the Shareholders within 30 days after receiving the draft Closing Date Balance Sheet a detailed statement describing its objections. The Buyer and the Shareholders will use commercially reasonable efforts to resolve any such objections themselves. If Purchaser and Seller achieve objections, but if they do not obtain a final resolution within 30 days after Shareholders have received the statement of objections, the Seller's objections Buyer and Shareholders will select an accounting firm mutually acceptable to them to resolve any remaining objections. If the Buyer and Shareholders are unable to agree on the choice of an accounting firm, they will select the accounting firm of Ernst & Young;
(c) The Parties will share the fees and expenses of this accounting firm in proportion to the Draft Closing Date Balance Sheet within thirty (30) days after the Purchaser's receipt of the Seller's written statement of such objections, such resolution shall be set forth in writing and such Draft Closing Date Balance Sheet, together with any revisions thereto agreed upon by and between the Purchaser and the Seller pursuant to this Section 2.06(c), shall be deemed to be the Closing Date Balance Sheet. The Purchaser and the Seller shall be entitled to prepay any amounts not in dispute or as degree to which the parties achieve final resolution (such amounts actually paid "Prepayments") plus interest at accounting firm has accepted the Applicable Rate between the Closing Date and the date position of such Prepayment. Any party making a Prepayment shall provide two (2) Business Days advanced written notice thereof to the other party.Party;
(d) If the Purchaser and the Seller do not achieve a final resolution of the Seller's objections to the Draft Closing Date Balance Sheet within thirty (30) days after the Purchaser's receipt of the Seller's written statement of such objections, the parties will jointly engage an Independent Accountant to resolve any disputes remaining between the parties. The Purchaser and the Seller shall instruct the Independent Accountant to deliver its written determination to the Purchaser and the Seller no later than the thirtieth (30th) day after such dispute was referred to it. The Independent Accountant shall act to determine, based solely on the provisions of this Section 2.06, related definitions contained herein and the presentations by the Seller and the Purchaser, and not by independent review, only those issues still in dispute and only as to whether such amounts (i) were arrived at in conformity with the Agreed Upon Procedures, (ii) were arrived at in conformity with the terms of this Agreement or (iii) contain arithmetic error. The determination of the Independent Accountant (i) will be set forth in writing, (ii) for any item in dispute shall not be in excess of, nor less than, the greatest or lowest value, respectively, claimed by either party for that particular item, (iii) will state that the Draft Closing Date Balance Sheet has been prepared in accordance with the Agreed Upon Procedures and in conformity with this Agreement and (iv) accounting firm so selected will be conclusive and binding upon the parties. The Purchaser will revise Parties as to the Draft final Closing Date Balance Sheet to reflect Sheet;
(e) Within 15 days following the resolution determination of any objections thereto pursuant to this Section 2.06(d), whereupon such Draft the final Closing Date Balance Sheet, together with the amount of any revisions thereto pursuant to this Section 2.06(d)increase in the Share Purchase Price, if any, shall be deemed to be paid by the Buyer in cash or by immediately available funds; and
(f) any reduction in the Share Purchase Price following the determination of the Closing Date Balance Sheet.
(e) In the event the parties submit any unresolved objections Sheet shall be subject to the Independent Accountant for resolution same set off procedures and limitations as provided set forth in Section 2.06(d) above, the Independent Accountant shall resolve each of such objections in favor of either the Purchaser or the Seller, and the Purchaser and Seller will share responsibility for the fees and expenses of the Independent Accountant as follows:
(i) if the Independent Accountant resolves all the remaining objections in favor of the Purchaser (the "Low Value"), the Seller will be responsible for all of the fees and expenses of the Independent Accountant;
(ii) if the Independent Accountant resolves all the remaining objections in favor of the Seller (the "High Value"), the Purchaser will be responsible for all of the fees and expenses of the Independent Accountant; and
(iii) if the Independent Accountant resolves some of the remaining objections in favor of the Purchaser and the rest of the remaining objections in favor of the Seller (the "Actual Value"), the Seller will be responsible for that fraction of the fees and expenses of the Independent Accountant equal to (x) the difference between the High Value and the Actual Value over (y) the difference between the High Value and the Low Value, and the Purchaser will be responsible for the remainder of the fees and expensesArticle 9.05.
(f) The Purchaser will make the work papers and back-up materials and all other data used in preparing the Draft Closing Date Balance Sheet, and the books, records and financial statements of the Company and its Subsidiaries, available to Seller and its accountants and other representatives during normal business hours upon reasonable notice at any time during (i) the preparation by Purchaser of the Draft Closing Date Balance Sheet, (ii) the review by the Seller of the Draft Closing Date Balance Sheet and (iii) the resolution by the parties of any objections thereto. Similarly, the Seller will make the work papers and back-up materials and all other data used in connection with its objections to the Draft Closing Date Balance Sheet available to Purchaser and its accountants and other representatives during normal business hours upon reasonable notice at any time during (i) the review by the Purchaser of the written objection to the Draft Closing Date Balance Sheet and (ii) the resolution by the parties of such objection.
Appears in 1 contract
Samples: Share and Asset Purchase Agreement (MMH Holdings Inc)
