Preparation. 3.1 As soon as practicable, and in any event no later than the date falling 60 days from Completion (excluding the day of Completion), the Buyer shall deliver to the Seller a draft of the Completion Statement (Draft Completion Statement). Prior to such delivery, the Buyer shall so far as is practicable consult with the Seller with a view to reducing the potential areas of disagreement. 3.2 In order to enable the Seller to review the Draft Completion Statement, the Buyer shall make available to the Seller, its officers employees and advisers, upon reasonable prior notice all books and records relating to the Group during normal office hours. 3.3 If the Seller does not within 30 days from delivery to it of the Draft Completion Statement (excluding the date of delivery) (Review Period) give notice to the Buyer that it disagrees with the Draft Completion Statement, such notice stating the reasons for the disagreement in reasonable detail and specifying the adjustments which, in the Seller’s opinion should be made to the Draft Completion Statement (the Seller’s Disagreement Notice), the Draft Completion Statement shall be the Completion Statement and shall be final and binding on the parties for all purposes. 3.4 If the Seller delivers a valid Seller’s Disagreement Notice within the Review Period, the Seller and the Buyer shall attempt in good faith to reach agreement in respect of the Draft Completion Statement and: (a) if the Buyer and the Seller agree, in writing, on all adjustments to be made to the Draft Completion Statement within 21 days from delivery of the Seller’s Disagreement Notice (excluding the date of delivery), then, the agreed adjustments shall be incorporated into the Draft Completion Statement and the Draft Completion Statement so adjusted shall be the Completion Statement and shall be final and binding on the parties for all purposes. (b) if they are unable to do so within 21 days from delivery of the Seller’s Disagreement Notice (excluding the date of delivery), the Seller or the Buyer shall refer those matters which are in dispute in the Draft Completion Statement to the Reporting Accountants. 3.5 If, as provided in paragraph 3.4(b), the Buyer and the Seller are unable to agree the Completion Statement then any matters in dispute may be referred by either party for determination, on the basis set out in paragraphs 3.6 to 3.11 (inclusive ) below to: (a) the firm of independent chartered accountants agreed between the Seller and the Buyer within 15 Business Days of a request by either of them to the other, or, failing such agreement within such time, (b) the firm of independent chartered accountants nominated by the President for the time being of the Institute of Chartered Accountants in England and Wales (or by such person as the President specifies for the purpose of making such nomination) on the written application of either the Seller or the Buyer. (c) If any firm of independent chartered accountants selected or nominated pursuant to paragraphs 3.5(a)or 3.5(b) refuses to accept the appointment, the procedure set out in this paragraph 3.5 shall be repeated. (the firm of independent chartered accountants appointed pursuant to this paragraph 3.5 shall be the Reporting Accountants) 3.6 The Reporting Accountants shall be engaged jointly by the Seller and the Buyer on the terms set out in this paragraph 3 and otherwise on such terms as shall be agreed; provided that neither the Seller nor the Buyer shall unreasonably (having regard, inter alia, to the provisions of this paragraph 3) refuse its agreement to terms proposed by the Reporting Accountants or by the other party. If the terms of engagement of the Reporting Accountants have not been settled within 45 days of their identity having been determined (or such longer period as the Seller and the Purchaser may agree) then, unless the Seller or the Buyer is unreasonably refusing its agreement to those terms, those accountants shall be deemed never to have become the Reporting Accountants and new Reporting Accountants shall be selected in accordance with the provisions of this Agreement. 3.7 Except to the extent that the Seller and the Buyer agree otherwise, and save as provided by the remaining provision of this paragraph 3, the Reporting Accountants shall determine their own procedure but apart from procedural matters and as otherwise set out in this Agreement shall determine only: (a) whether any of the arguments for an alteration to the Draft Completion Statement put forward in the Seller’s Disagreement Notice, and which remain in dispute, is correct in whole or in part; and (b) if so, what alterations should be made to the Draft Completion Statement in order to correct the relevant inaccuracy in it; 3.8 The Reporting Accountants shall apply the accounting principles, policies, procedures, practices and techniques set out in paragraph 2 of Part 1 of schedule 11 and shall make their determination as soon as is reasonably practicable; 3.9 The procedure of the Reporting Accountants shall: (a) give the Seller and the Buyer a reasonable opportunity to make written representations to them; and (b) require that the Seller and the Buyer supply the other with a copy of any written representations at the same time as they are made to the Reporting Accountants; 3.10 In making their determination the Reporting Accountants shall act as experts and not as arbitrators and their determination of any matter falling within their jurisdiction shall be final and binding on the Seller and the Buyer save in the event of manifest error (when the relevant part of their determination shall be void and the matter shall be remitted to the Reporting Accountants for correction) or fraud. 3.11 The expenses (including VAT) of the Reporting Accountants shall be borne as they shall direct or, failing such direction, equally between the Buyer and the Seller. 3.12 Within 5 Business Days of any written determination by the Reporting Accountants pursuant to this schedule, the Seller and the Buyer shall jointly incorporate in the Draft Completion Statement the matters determined by the Reporting Accountants, together with any adjustments which may have been agreed separately in writing between the Seller and the Buyer, and the Draft Completion Statement as so adjusted shall be the and the Draft Completion Statement so adjusted shall be the Completion Statement and shall be final and binding on the parties for all purposes.
Appears in 3 contracts
Samples: Agreement for the Sale and Purchase of Shares (Dollar Financial Corp), Agreement for the Sale and Purchase of Shares (Dollar Financial Corp), Sale and Purchase Agreement (CompuCredit Holdings Corp)
Preparation. 3.1 (a) As directed by ComEd, ComEd or Contractor will prepare an initial draft of any new Statement of Work. As soon as practicablereasonably practicable from receipt of a request for a Statement Work or a draft Statement of Work in the event that ComEd prepares the initial draft, Contractor shall respond to ComEd either with a draft Statement of Work, or in the event that ComEd has provided an initial draft, with a responsive draft accepting or modifying the Statement of Work by ComEd. In each case, Contractor’s response shall be reasonably detailed, shall include all material terms that would reasonably be required to provide the requested Services and in may include any alternative solutions which Contractor reasonably believes would reduce costs, accelerate the schedule or otherwise be favorable to fit ComEd’s intended purpose for the proposed Contractor Service. In the event no later than that Contractor modifies any Statement of Work, it shall provide a detailed explanation for such modification together with proposed changes that would make the date falling 60 days from Completion (excluding modified Statement of Work acceptable to Contractor. In the day event that the modified Statement of Completion)Work as revised by Contractor is not acceptable to ComEd, then as soon as reasonably practicable following a written request by ComEd, the Buyer Parties shall deliver meet to negotiate in good faith, using all Commercially Reasonable efforts, with respect to the Seller a draft modified elements of the Completion draft Statement (Draft Completion Statement). Prior to such delivery, the Buyer shall so far as is practicable consult with the Seller with a view to reducing the potential areas of disagreement.
3.2 In order to enable the Seller to review the Draft Completion Statement, the Buyer shall make available to the Seller, its officers employees and advisers, upon reasonable prior notice all books and records relating to the Group during normal office hours.
3.3 If the Seller does not within 30 days from delivery to it of the Draft Completion Statement (excluding the date of delivery) (Review Period) give notice to the Buyer that it disagrees with the Draft Completion Statement, such notice stating the reasons for the disagreement in reasonable detail and specifying the adjustments which, in the Seller’s opinion should be made to the Draft Completion Statement (the Seller’s Disagreement Notice), the Draft Completion Statement shall be the Completion Statement and shall be final and binding on the parties for all purposes.
3.4 If the Seller delivers a valid Seller’s Disagreement Notice within the Review Period, the Seller and the Buyer shall attempt in good faith to reach agreement in respect of the Draft Completion Statement and:
(a) if the Buyer and the Seller agree, in writing, on all adjustments to be made to the Draft Completion Statement within 21 days from delivery of the Seller’s Disagreement Notice (excluding the date of delivery), then, the agreed adjustments shall be incorporated into the Draft Completion Statement and the Draft Completion Statement so adjusted shall be the Completion Statement and shall be final and binding on the parties for all purposesWork.
(b) if they are unable to do so within 21 days from delivery of the Seller’s Disagreement Notice (excluding the date of delivery), the Seller or the Buyer All negotiations shall refer those matters which are in dispute in the Draft Completion Statement to the Reporting Accountants.
3.5 If, as provided in paragraph 3.4(b), the Buyer and the Seller are unable to agree the Completion Statement then any matters in dispute may be referred by either party for determination, on the basis set out in paragraphs 3.6 to 3.11 (inclusive ) below to:
(a) the firm of independent chartered accountants agreed between the Seller and the Buyer within 15 Business Days of a request by either of them to the other, take place telephonically or, failing such agreement within such time,
(b) the firm of independent chartered accountants nominated by the President for the time being of the Institute of Chartered Accountants in England and Wales (or by such person as the President specifies for the purpose of making such nomination) on the written application of either the Seller or the Buyer.
(c) If any firm of independent chartered accountants selected or nominated pursuant to paragraphs 3.5(a)or 3.5(b) refuses to accept the appointment, the procedure set out in this paragraph 3.5 shall be repeated. (the firm of independent chartered accountants appointed pursuant to this paragraph 3.5 shall be the Reporting Accountants)
3.6 The Reporting Accountants shall be engaged jointly by the Seller and the Buyer on the terms set out in this paragraph 3 and otherwise on such terms as shall be agreed; provided that neither the Seller nor the Buyer shall unreasonably (having regard, inter alia, to the provisions of this paragraph 3) refuse its agreement to terms proposed by the Reporting Accountants or by the other party. If the terms of engagement of the Reporting Accountants have not been settled within 45 days of their identity having been determined (or such longer period as the Seller and the Purchaser may agree) then, unless the Seller or the Buyer is unreasonably refusing its agreement to those terms, those accountants shall be deemed never to have become the Reporting Accountants and new Reporting Accountants shall be selected in accordance with the provisions of this Agreement.
3.7 Except to the extent that the Seller and the Buyer agree otherwise, and save as provided by the remaining provision of this paragraph 3, the Reporting Accountants shall determine their own procedure but apart from procedural matters and as otherwise set out in this Agreement shall determine only:
(a) whether any of the arguments for an alteration to the Draft Completion Statement put forward in the Seller’s Disagreement Notice, and which remain in dispute, is correct in whole or in part; and
(b) if so, what alterations should be made to the Draft Completion Statement in order to correct the relevant inaccuracy in it;
3.8 The Reporting Accountants shall apply the accounting principles, policies, procedures, practices and techniques set out in paragraph 2 of Part 1 of schedule 11 and shall make their determination as soon as is reasonably practicable;
3.9 The procedure of the Reporting Accountants shall:
(a) give the Seller and the Buyer a reasonable opportunity to make written representations to them; and
(b) require that the Seller and the Buyer supply the other with a copy of any written representations at the same time as they are made to the Reporting Accountants;
3.10 In making their determination the Reporting Accountants shall act as experts and not as arbitrators and their determination of any matter falling within their jurisdiction shall be final and binding on the Seller and the Buyer save in the event that either Party determines that in-person negotiations are necessary, at ComEd’s facilities. The Parties shall use commercially reasonable efforts to come to agreement on each Statement of manifest error Work. All Statements of Work created under this Section will be on terms and conditions mutually agreed upon; provided, however, that Contractor shall not withhold its approval for a Statement of Work if: (when i) it contains Commercially Reasonable Terms; (ii) it is Technically Feasible; (iii) it involves the relevant part development of their determination shall be void and the matter shall be remitted to the Reporting Accountants for correction) additional features, functionality or fraud.
3.11 The expenses (including VAT) Products that are direct derivations or extensions of Products existing as of the Reporting Accountants shall be borne as they shall direct oreffective date of the Statement of Work; and (iv) ComEd agrees to allow Contractor to make such additional features, failing functionality or Products requested under such directionStatement of Work generally available to Contractor’s other customers, equally between the Buyer at Contractor’s sole cost and the Sellerexpense.
3.12 Within 5 Business Days of any written determination by the Reporting Accountants pursuant to this schedule, the Seller and the Buyer shall jointly incorporate in the Draft Completion Statement the matters determined by the Reporting Accountants, together with any adjustments which may have been agreed separately in writing between the Seller and the Buyer, and the Draft Completion Statement as so adjusted shall be the and the Draft Completion Statement so adjusted shall be the Completion Statement and shall be final and binding on the parties for all purposes.
Appears in 2 contracts
Samples: Services Agreement (Silver Spring Networks Inc), Services Agreement (Silver Spring Networks Inc)
Preparation. 3.1 As soon Promptly (but in no event later than 20 Business Days) after the execution of this Agreement, the Company will prepare (with Parent’s reasonable cooperation) and file with the SEC a preliminary proxy statement to be sent to the Company Stockholders in connection with the Company Stockholder Meeting (the proxy statement, including any amendments or supplements, the “Proxy Statement”). The Company and Parent shall cooperate to, concurrently with the preparation and filing of the Proxy Statement, jointly prepare and file with the SEC a Rule 13e-3 Transaction Statement on Schedule 13e-3 (such transaction statement, including any amendment or supplement thereto, the “Schedule 13e-3”) relating to the transactions contemplated by this Agreement. The Company will not file the Proxy Statement with the SEC without first providing Parent and its counsel a reasonable opportunity to review and comment thereon, and the Company will give good faith consideration to all reasonable additions, deletions or changes suggested by Parent or its counsel. The Company (i) provide Parent with a reasonable opportunity to review and comment on the Schedule 13e-3 prior to filing the Schedule 13e-3 with the SEC and (ii) will give good faith consideration to all reasonable additions, deletions or changes suggested by Parent or its counsel. Subject to Section 5.4 and unless there has been a Company Recommendation Change, the Company will (i) include the Company Recommendation in the Proxy Statement; and (ii) use reasonable best efforts to solicit proxies to obtain the Requisite Stockholder Approval and take all action necessary or advisable to secure the vote of the holders of shares of Company Common Stock required by applicable Law to effect the Merger. Subject to applicable Law, the Company shall use its reasonable best efforts to cause the Proxy Statement and the Schedule 13e-3 to be mailed to the Company Stockholders as promptly as reasonably practicable, and in any no event no later more than three Business Days, following confirmation from the date falling 60 days from Completion (excluding the day of Completion)SEC that it will not review, or that it has completed its review of, the Buyer shall deliver to the Seller a draft of the Completion Statement (Draft Completion Statement). Prior to such delivery, the Buyer shall so far as is practicable consult with the Seller with a view to reducing the potential areas of disagreement.
3.2 In order to enable the Seller to review the Draft Completion Proxy Statement, the Buyer shall make available which confirmation will be deemed to the Seller, its officers employees and advisers, upon reasonable prior notice all books and records relating to the Group during normal office hours.
3.3 If the Seller does not within 30 days from delivery to it of the Draft Completion Statement (excluding the date of delivery) (Review Period) give notice to the Buyer that it disagrees with the Draft Completion Statement, such notice stating the reasons for the disagreement in reasonable detail and specifying the adjustments which, in the Seller’s opinion should be made to the Draft Completion Statement (the Seller’s Disagreement Notice), the Draft Completion Statement shall be the Completion Statement and shall be final and binding on the parties for all purposes.
3.4 If the Seller delivers a valid Seller’s Disagreement Notice within the Review Period, the Seller and the Buyer shall attempt in good faith to reach agreement in respect of the Draft Completion Statement and:
(a) have occurred if the Buyer and SEC has not affirmatively notified the Seller agreeCompany by 11:59 p.m., in writing, on all adjustments to be made to the Draft Completion Statement within 21 days from delivery of the Seller’s Disagreement Notice (excluding the date of delivery), then, the agreed adjustments shall be incorporated into the Draft Completion Statement and the Draft Completion Statement so adjusted shall be the Completion Statement and shall be final and binding on the parties for all purposes.
(b) if they are unable to do so within 21 days from delivery of the Seller’s Disagreement Notice (excluding the date of delivery), the Seller or the Buyer shall refer those matters which are in dispute in the Draft Completion Statement to the Reporting Accountants.
3.5 If, as provided in paragraph 3.4(b), the Buyer and the Seller are unable to agree the Completion Statement then any matters in dispute may be referred by either party for determinationNew York City time, on the basis set out in paragraphs 3.6 to 3.11 (inclusive ) below to:
(a) the firm of independent chartered accountants agreed between the Seller and the Buyer within 15 Business Days of a request by either of them to the other, or, failing tenth calendar day following such agreement within such time,
(b) the firm of independent chartered accountants nominated by the President for the time being of the Institute of Chartered Accountants in England and Wales (or by such person as the President specifies for the purpose of making such nomination) on the written application of either the Seller or the Buyer.
(c) If any firm of independent chartered accountants selected or nominated pursuant to paragraphs 3.5(a)or 3.5(b) refuses to accept the appointment, the procedure set out in this paragraph 3.5 shall be repeated. (the firm of independent chartered accountants appointed pursuant to this paragraph 3.5 shall be the Reporting Accountants)
3.6 The Reporting Accountants shall be engaged jointly by the Seller and the Buyer on the terms set out in this paragraph 3 and otherwise on such terms as shall be agreed; provided that neither the Seller nor the Buyer shall unreasonably (having regard, inter alia, to the provisions of this paragraph 3) refuse its agreement to terms proposed by the Reporting Accountants or by the other party. If the terms of engagement of the Reporting Accountants have not been settled within 45 days of their identity having been determined (or such longer period as the Seller and the Purchaser may agree) then, unless the Seller or the Buyer is unreasonably refusing its agreement to those terms, those accountants shall be deemed never to have become the Reporting Accountants and new Reporting Accountants shall be selected in accordance filing with the provisions of this Agreement.
3.7 Except to the extent SEC that the Seller and SEC will or will not be reviewing the Buyer agree otherwise, and save as provided by the remaining provision of this paragraph 3, the Reporting Accountants shall determine their own procedure but apart from procedural matters and as otherwise set out in this Agreement shall determine only:
(a) whether any of the arguments for an alteration to the Draft Completion Statement put forward in the Seller’s Disagreement Notice, and which remain in dispute, is correct in whole or in part; and
(b) if so, what alterations should be made to the Draft Completion Statement in order to correct the relevant inaccuracy in it;
3.8 The Reporting Accountants shall apply the accounting principles, policies, procedures, practices and techniques set out in paragraph 2 of Part 1 of schedule 11 and shall make their determination as soon as is reasonably practicable;
3.9 The procedure of the Reporting Accountants shall:
(a) give the Seller and the Buyer a reasonable opportunity to make written representations to them; and
(b) require that the Seller and the Buyer supply the other with a copy of any written representations at the same time as they are made to the Reporting Accountants;
3.10 In making their determination the Reporting Accountants shall act as experts and not as arbitrators and their determination of any matter falling within their jurisdiction shall be final and binding on the Seller and the Buyer save in the event of manifest error (when the relevant part of their determination shall be void and the matter shall be remitted to the Reporting Accountants for correction) or fraudProxy Statement.
3.11 The expenses (including VAT) of the Reporting Accountants shall be borne as they shall direct or, failing such direction, equally between the Buyer and the Seller.
3.12 Within 5 Business Days of any written determination by the Reporting Accountants pursuant to this schedule, the Seller and the Buyer shall jointly incorporate in the Draft Completion Statement the matters determined by the Reporting Accountants, together with any adjustments which may have been agreed separately in writing between the Seller and the Buyer, and the Draft Completion Statement as so adjusted shall be the and the Draft Completion Statement so adjusted shall be the Completion Statement and shall be final and binding on the parties for all purposes.
Appears in 2 contracts
Samples: Merger Agreement (Vepf Vii SPV I, L.P.), Merger Agreement (KnowBe4, Inc.)
Preparation. 3.1 As soon as practicable, and in any event no later than the date falling 60 days from Completion (excluding the day of Completion), the Buyer The Seller shall deliver to the Seller a draft of Purchaser, no later than 60 (sixty) days following the Completion Statement (Draft Completion Statement). Prior to such deliveryClosing Date, the Buyer shall so far as is practicable consult with the Seller with a view to reducing the potential areas of disagreementDraft Closing Statement.
3.2 In order to enable the Seller to review prepare the Draft Completion Closing Statement, the Buyer Purchaser shall keep up-to-date and, subject to reasonable notice, make available to the Seller, its officers employees ’s representatives and advisers, upon reasonable prior notice to the Seller’s accountants all books and records and access to all relevant systems relating to the Target Group during normal office hourshours and co-operate with them with regard to the preparation, review, agreement or determination of the Closing Statement. The Purchaser agrees, in so far as it is reasonable to do so, to make available the employees of the Target Group to assist the Seller in the performance of its duties under this Schedule.
3.3 If the Seller Purchaser does not within 30 (thirty) days from delivery to of receipt (or deemed receipt) by it of the Draft Completion Closing Statement (excluding the date of delivery) (Review Period) give notice to the Buyer Seller that it disagrees with the Draft Completion StatementClosing Statement or any item thereof, such notice stating the reasons for the disagreement in reasonable detail and specifying the adjustments which, in the SellerPurchaser’s opinion opinion, should be made to the Draft Completion Closing Statement (the Seller“Purchaser’s Disagreement Notice”), the Draft Completion Closing Statement shall be the Completion Statement and shall be final and binding on the parties Seller and the Purchaser for all purposes.
3.4 . If the Seller delivers Purchaser gives a valid SellerPurchaser’s Disagreement Notice within the Review Periodsuch 30 (thirty) days, the Seller and the Buyer Purchaser shall attempt in good faith to reach agreement in respect of the Draft Completion Closing Statement and:
(a) if the Buyer and the Seller agree, in writing, on all adjustments to be made to the Draft Completion Statement within 21 days from delivery of the Seller’s Disagreement Notice (excluding the date of delivery), then, the agreed adjustments shall be incorporated into the Draft Completion Statement and the Draft Completion Statement so adjusted shall be the Completion Statement and shall be final and binding on the parties for all purposes.
(b) if they are unable to do so within 21 (twenty one) days from delivery of the Seller’s Disagreement Notice (excluding the date of delivery)such notification, the Seller or the Buyer shall refer those matters which are in dispute in Purchaser may by notice to the other require that the Draft Completion Closing Statement be referred to the Reporting Accountants.
3.5 If. Upon such referral, as provided all matters contained in paragraph 3.4(b), the Buyer Draft Closing Statement other than those items which are the subject of the referral or which are affected thereby shall become final and the Seller are unable to agree the Completion Statement then any matters in dispute may be referred by either party for determination, binding on the basis set out in paragraphs 3.6 to 3.11 (inclusive ) below to:
(a) the firm of independent chartered accountants agreed between the Seller and the Buyer within 15 Business Days of a request by either of them to the other, or, failing such agreement within such time,
(b) the firm of independent chartered accountants nominated by the President for the time being of the Institute of Chartered Accountants in England and Wales (or by such person as the President specifies for the purpose of making such nomination) on the written application of either the Seller or the BuyerPurchaser.
(c) If any firm of independent chartered accountants selected or nominated pursuant to paragraphs 3.5(a)or 3.5(b) refuses to accept the appointment, the procedure set out in this paragraph 3.5 shall be repeated. (the firm of independent chartered accountants appointed pursuant to this paragraph 3.5 shall be the Reporting Accountants)
3.6 3.4 The Reporting Accountants shall be engaged jointly by the Seller and the Buyer Purchaser on the terms set out in this paragraph 3 and otherwise on such terms as shall be agreed; provided that neither the Seller nor the Buyer Purchaser shall unreasonably (having regard, inter alia, to the provisions of this paragraph 3) refuse its agreement to terms proposed by the Reporting Accountants or by the other partyParty. If the terms of engagement of the Reporting Accountants have not been settled within 45 (forty five) days of their identity having been determined (or such longer period as the Seller and the Purchaser may agree) then, unless the Seller or the Buyer Purchaser is unreasonably refusing its agreement to those terms, those accountants shall be deemed never to have become the Reporting Accountants and new Reporting Accountants shall be selected in accordance with the provisions of this Agreement.
3.7 3.5 Except to the extent that the Seller and the Buyer Purchaser agree otherwise, and save as provided by the remaining provision of this paragraph 3, the Reporting Accountants shall determine their own procedure but but:
3.5.1 apart from procedural matters and as otherwise set out in this Agreement shall determine only:
(ai) whether any of the arguments for an proposed alteration to the Draft Completion Closing Statement put forward in the Sellerany relevant Purchaser’s Disagreement Notice, and which remain in dispute, Notice is correct in whole or in part; and
(b) if so, what alterations should be made to the Draft Completion Statement in order to correct the relevant inaccuracy in it;
3.8 The Reporting Accountants shall apply the accounting principles, policies, procedures, practices and techniques set out in paragraph 2 of Part 1 of schedule 11 and shall make their determination as soon as is reasonably practicable;
3.9 The procedure of the Reporting Accountants shall:
(a) give the Seller and the Buyer a reasonable opportunity to make written representations to them; and
(b) require that the Seller and the Buyer supply the other with a copy of any written representations at the same time as they are made to the Reporting Accountants;
3.10 In making their determination the Reporting Accountants shall act as experts and not as arbitrators and their determination of any matter falling within their jurisdiction shall be final and binding on the Seller and the Buyer save in the event of manifest error (when the relevant part of their determination shall be void and the matter shall be remitted to the Reporting Accountants for correction) or fraud.
3.11 The expenses (including VAT) of the Reporting Accountants shall be borne as they shall direct or, failing such direction, equally between the Buyer and the Seller.
3.12 Within 5 Business Days of any written determination by the Reporting Accountants pursuant to this schedule, the Seller and the Buyer shall jointly incorporate in the Draft Completion Statement the matters determined by the Reporting Accountants, together with any adjustments which may have been agreed separately in writing between the Seller and the Buyer, and the Draft Completion Statement as so adjusted shall be the and the Draft Completion Statement so adjusted shall be the Completion Statement and shall be final and binding on the parties for all purposes.
Appears in 1 contract
Preparation. 3.1 As The Completion Accounts and the computation of the Balance Sheet Adjustment shall be delivered to the Sellers by the Purchaser as soon as practicableis practicable following Completion and, and in any event no event, not later than the date falling 60 45 days from Completion (excluding the day of after Completion), the Buyer shall deliver to the Seller a draft of the Completion Statement (Draft Completion Statement). Prior to such delivery, the Buyer shall Purchaser shall, so far as is practicable practicable, consult with the Seller Sellers with a view to reducing the potential areas of future disagreement.
3.2 In order Each of the Sellers and the Purchaser shall co-operate with the other with regard to enable the Seller preparation, review, agreement or determination of the Completion Accounts and the computation of the Balance Sheet Adjustment and shall, subject to review the Draft Completion Statementreasonable notice, the Buyer shall make available to the Seller, its officers employees and advisers, upon reasonable prior notice all books and records relating to the Group during normal office hourshours to the other and its representatives and accountants all books, records and working papers as the other Party(ies) may reasonably require. The Sellers and their advisers will also be granted reasonable access to personnel and premises of the Group for these purposes but at all times contact must be made by the Sellers via the Chief Financial Officer of the Purchaser (or his designee).
3.3 If the Seller does Sellers do not within 30 days from delivery of presentation to it of the Draft Completion Statement (excluding Accounts and the date computation of delivery) (Review Period) the Balance Sheet Adjustment give notice to the Buyer Purchaser that it disagrees with any of the Draft Completion StatementAccounts, the computation of the Balance Sheet Adjustment or any item thereof, such notice stating the reasons for the disagreement in reasonable detail and specifying the adjustments which, in the Seller’s Sellers’ opinion should be made to such Completion Accounts and the Draft Completion Statement computation of the Balance Sheet Adjustment (the Seller’s “Sellers’ Disagreement Notice”), the Draft Completion Statement shall be the Completion Statement and Accounts shall be final and binding on the parties Parties for all purposes.
3.4 purposes (including, for the avoidance of doubt, the computation of the Balance Sheet Adjustment). In respect of all sums not in dispute as set out in the Sellers’ Disagreement Notice, the Completion Accounts and the computation of the Balance Sheet Adjustment shall be deemed agreed. If the Seller delivers Sellers give a valid Seller’s Sellers’ Disagreement Notice within the Review Periodsuch 30 days, the Seller Purchaser and the Buyer Sellers shall attempt in good faith to reach agreement in respect of the Draft Completion Statement and:
(a) if the Buyer and the Seller agree, in writing, on all adjustments to be made to the Draft Completion Statement within 21 days from delivery which of the Seller’s specific items disputed set out in the Sellers’ Disagreement Notice (excluding the date of delivery), then, the agreed adjustments shall should be incorporated into the Draft Completion Statement and the Draft Completion Statement so adjusted shall be included in the Completion Statement and shall be final and binding on Accounts and/or the parties for all purposes.
computation of the Balance Sheet Adjustment (bthe “Disputed Completion Accounts”) and, if they are unable to do so within 21 14 days from delivery of the Seller’s Disagreement Notice (excluding the date of delivery)such notification, the Seller Purchaser or the Buyer shall refer those matters which are Sellers may by notice to the other require that such items as remain in dispute in the Draft Completion Statement be referred to the Completion Reporting Accountants.
3.5 If, as provided in paragraph 3.4(b), the Buyer and the Seller are unable to agree the 3.4 The Completion Statement then any matters in dispute may be referred by either party for determination, on the basis set out in paragraphs 3.6 to 3.11 (inclusive ) below to:
(a) the firm of independent chartered accountants agreed between the Seller and the Buyer within 15 Business Days of a request by either of them to the other, or, failing such agreement within such time,
(b) the firm of independent chartered accountants nominated by the President for the time being of the Institute of Chartered Accountants in England and Wales (or by such person as the President specifies for the purpose of making such nomination) on the written application of either the Seller or the Buyer.
(c) If any firm of independent chartered accountants selected or nominated pursuant to paragraphs 3.5(a)or 3.5(b) refuses to accept the appointment, the procedure set out in this paragraph 3.5 shall be repeated. (the firm of independent chartered accountants appointed pursuant to this paragraph 3.5 shall be the Reporting Accountants)
3.6 The Reporting Accountants shall be engaged jointly by the Seller Sellers and the Buyer Purchaser on the terms set out in this paragraph 3 Schedule 9 and otherwise on such terms as shall be agreedagreed between the Sellers and the Purchaser in writing; provided that neither the Seller Sellers nor the Buyer Purchaser shall unreasonably (having regard, inter alia, to the provisions of this paragraph 3Schedule 9) refuse its agreement to terms proposed by the Completion Reporting Accountants or by the other partyParty(ies). If the terms of engagement of the Completion Reporting Accountants have not been settled within 45 14 days of their identity having been determined (or such longer period as the Seller Sellers and the Purchaser may agreeagree in writing) then, unless the Seller Sellers or the Buyer Purchaser is unreasonably refusing its agreement to those terms, those accountants shall be deemed never to have become the Completion Reporting Accountants and new Completion Reporting Accountants shall be selected in accordance with the provisions of this Agreement.
3.7 3.5 Except to the extent that the Seller Sellers and the Buyer Purchaser agree otherwise, and save as provided by the remaining provision of this paragraph 3, the Completion Reporting Accountants shall determine their own procedure but but:
3.5.1 apart from procedural matters and as otherwise set out in this Agreement shall determine only:
(a) whether any of the arguments for an alteration to the Draft Completion Statement put forward only those items set out in the Seller’s Sellers’ Disagreement Notice, Notice which have not been agreed by the Parties and which remain in dispute, is correct in whole or in part; and
(b) if so, what alterations whether these should be made to included in the Draft Disputed Completion Statement Accounts in order to correct the relevant inaccuracy in it;
3.8 The Reporting Accountants 3.5.2 shall apply the accounting principles, policies, procedures, practices and techniques principles set out in paragraph paragraphs 1 and 2 of Part 1 of schedule 11 and herein;
3.5.3 shall make their determination pursuant to paragraph 3.5.1 as soon as is reasonably practicable;practicable and in any event within 20 days from their appointment; and
3.9 The 3.5.4 the procedure of the Completion Reporting Accountants shall:
(ai) give the Seller Sellers and the Buyer Purchaser a reasonable opportunity to make written representations to them; and;
(bii) require that the Seller and the Buyer Completion Reporting Accountants supply the other Parties with a copy of any written representations at made by any Party and allow each Party to comment on the same time as they are other’s written representations; and
(iii) for the avoidance of doubt, the Completion Reporting Accountants shall not be entitled to determine the scope of their own jurisdiction.
3.6 The determination of the Completion Reporting Accountants pursuant to paragraph 3.5.1 shall:
3.6.1 be made to in writing; and
3.6.2 unless otherwise agreed in writing by the Reporting Accountants;Sellers and the Purchaser, include reasons for each relevant determination.
3.10 In making their determination the 3.7 The Completion Reporting Accountants shall act as experts and not as arbitrators and their determination of any matter falling within their jurisdiction shall be final and binding on the Seller and the Buyer Parties save in the event of manifest error (when the relevant part of their determination shall be void and the matter shall be remitted to the Completion Reporting Accountants for correction) or fraud). In particular, without limitation, their determination shall be deemed to be incorporated into the Disputed Completion Accounts and the computation of the Balance Sheet Adjustment.
3.11 3.8 The proportion of expenses (including VAT) of the Completion Reporting Accountants borne by the Purchaser shall be the same proportion as the items ruled in the Sellers’ favour compared to the total items disputed by the Sellers. The remaining expenses (including VAT) of the Completion Reporting Accountants shall be borne as they shall direct or, failing such direction, equally between by the Buyer Sellers.
3.9 The Sellers and the SellerPurchaser shall co-operate with the Completion Reporting Accountants and comply with their reasonable requests made in connection with the carrying out of their duties under this Agreement. In particular, without limitation, the Purchaser shall keep up-to-date and, subject to reasonable notice, make available during normal office hours to the Completion Reporting Accountants all books, working papers and records relating to the Group as the Completion Reporting Accountants may reasonably request during the period from the appointment of the Completion Reporting Accountants down to the making of the relevant determination.
3.12 Within 5 Business Days of any written determination by 3.10 Nothing in paragraph 3 shall entitle a Party or the Completion Reporting Accountants pursuant access to this scheduleany information or document which is protected by legal professional privilege or litigation privilege, provided that neither the Seller and Sellers nor the Buyer shall jointly incorporate in the Draft Completion Statement the matters determined by the Reporting Accountants, together with any adjustments which may have been agreed separately in writing between the Seller and the Buyer, and the Draft Completion Statement as so adjusted Purchaser shall be entitled to refuse to supply such part or parts of documents as contain only the and facts on which the Draft Completion Statement so adjusted shall be the Completion Statement and shall be final and binding on the parties for all purposesrelevant claim or argument is based.
Appears in 1 contract
Samples: Share Purchase Agreement (Hain Celestial Group Inc)
Preparation. 3.1 As 8.2.1 The Completion Accounts shall be delivered by the Purchaser to the Vendors as soon as practicableis practicable following Completion and, and in any event no event, not later than the date falling 60 days from Completion (excluding the day of twenty Business Days after Completion), the Buyer shall deliver to the Seller a draft of the Completion Statement (Draft Completion Statement). Prior to such delivery, the Buyer Purchasers shall so far as is practicable consult with the Seller Vendors with a view to reducing the potential areas of future disagreement.
3.2 In order to enable the Seller to review the Draft Completion Statement, the Buyer shall make available to the Seller, its officers employees and advisers, upon reasonable prior notice all books and records relating to the Group during normal office hours.
3.3 8.2.2 If the Seller does Vendors do not within 30 days from delivery twenty Business Days of presentation to it of the Draft Completion Statement Accounts (excluding and it is acknowledged that the date of deliveryVendors shall instruct BDO Xxxx Xxxxxxx ("BDO") (Review Periodto review the Completion Accounts within such time, and that BDO shall be allowed access to the Company's records and PricewaterhouseCooper's records to the extent necessary to enable it to carry out such review) give notice to the Buyer Purchaser that it disagrees with the Draft Completion Statement, Accounts or any item thereof such notice stating the reasons for the disagreement in reasonable detail and specifying the adjustments which, in the Seller’s opinion should be made to the Draft Completion Statement (the Seller’s "Vendors' Disagreement Notice"), the Draft Completion Statement shall be the Completion Statement and Accounts shall be final and binding on the parties for all purposes.
3.4 . If the Seller delivers Vendor gives a valid Seller’s Vendor's Disagreement Notice within the Review Periodsuch twenty Business days, the Seller and the Buyer parties shall attempt in good faith to reach agreement in respect of the Draft Completion Statement thereof and:
(a) if the Buyer and the Seller agree, in writing, on all adjustments to be made to the Draft Completion Statement within 21 days from delivery of the Seller’s Disagreement Notice (excluding the date of delivery), then, the agreed adjustments shall be incorporated into the Draft Completion Statement and the Draft Completion Statement so adjusted shall be the Completion Statement and shall be final and binding on the parties for all purposes.
(b) if they are unable to do so within 21 days from delivery twenty Business Days of the Seller’s Disagreement Notice (excluding the date of delivery)such notification, the Seller Purchaser may by notice to the Vendors or the Buyer shall refer those matters which are in dispute in Vendors may by notice to the Draft Purchaser require that the Completion Statement Accounts be referred to the Reporting AccountantsAccountants (an "Appointment Notice").
3.5 If, as provided in paragraph 3.4(b)8.2.3 Within 21 days of the giving of an Appointment Notice, the Buyer and Purchaser may by notice to the Seller are unable to agree Vendor indicate that, in the light of the fact that the Vendor has not accepted the Completion Statement then any Accounts in their entirety, the Purchaser wishes the Reporting Accountants to consider matters in dispute may be referred by either party for determination, on the basis set out in paragraphs 3.6 to 3.11 (inclusive ) below to:
(a) the firm of independent chartered accountants agreed between the Seller and the Buyer within 15 Business Days of a request by either of them relating to the otherCompletion Accounts in addition to those specified in the Vendors' Disagreement Notice, or, failing such agreement within such time,
notice stating in reasonable detail the reasons why and in what respects the Purchaser believes that the Completion Accounts should be altered (b) the firm of independent chartered accountants nominated by the President for the time being of the Institute of Chartered Accountants in England and Wales (or by such person as the President specifies for the purpose of making such nomination) on the written application of either the Seller or the Buyer"Purchaser's Disagreement Notice").
(c) If any firm of independent chartered accountants selected or nominated pursuant to paragraphs 3.5(a)or 3.5(b) refuses to accept the appointment, the procedure set out in this paragraph 3.5 shall be repeated. (the firm of independent chartered accountants appointed pursuant to this paragraph 3.5 shall be the Reporting Accountants)
3.6 8.2.4 The Reporting Accountants shall be engaged jointly by the Seller and the Buyer parties on the terms set out in this paragraph 3 Clause 8.2 and otherwise on such terms as shall be agreed; provided that neither the Seller nor the Buyer party shall unreasonably (having regard, inter alia, to the provisions of this paragraph 3Clause 8.2) refuse its agreement to terms proposed by the Reporting Accountants or by the other party. If the terms of engagement of the Reporting Accountants have not been settled within 45 days of their identity having been determined (or such longer period as the Seller and the Purchaser parties may agree) then, unless the Seller or the Buyer one party is unreasonably refusing its agreement to those terms, those accountants shall be deemed never to have become the Reporting Accountants and new Reporting Accountants shall be selected in accordance with the provisions of this Agreement.
3.7 8.2.5 Except to the extent that the Seller and the Buyer parties agree otherwise, and save as provided by the remaining provision of this paragraph 3, the Reporting Accountants shall determine their own procedure but but:
a. apart from procedural matters and as otherwise set out in this Agreement shall determine only:
(a) i. whether any of the arguments for an alteration to the Draft Completion Statement Accounts put forward in the Seller’s Purchaser's Disagreement Notice, and which remain in dispute, Notice or the Vendors' Disagreement Notice is correct in whole or in part; and
(b) ii. if so, what alterations should be made to the Draft Completion Statement Accounts in order to correct the relevant inaccuracy in it;
3.8 The Reporting Accountants b. shall apply the accounting principles, policies, procedures, practices and techniques principles set out in paragraph 2 of Part 1 of schedule 11 and clause 8.1;
c. shall make their determination pursuant to paragraph (a) above as soon as is reasonably practicable;
3.9 The d. the procedure of the Reporting Accountants shall:
(a) i. give the Seller and the Buyer parties a reasonable opportunity to make written and oral representations to them; and;
(b) ii. require that the Seller and the Buyer each party supply the other with a copy of any written representations at the same time as they are made to the Reporting Accountants;
3.10 In making their determination iii. permit each party to be present while oral submissions are being made by the other party; and
iv. for the avoidance of doubt, the Reporting Accountants shall act as experts and not as arbitrators and be entitled to determine the scope of their own jurisdiction.
8.2.6 The determination of any matter falling within their jurisdiction shall be final and binding on the Seller and the Buyer save in the event of manifest error (when the relevant part of their determination shall be void and the matter shall be remitted to the Reporting Accountants for correction) or fraud.
3.11 The expenses (including VAT) of the Reporting Accountants shall be borne as they shall direct or, failing such direction, equally between the Buyer and the Seller.
3.12 Within 5 Business Days of any written determination by the Reporting Accountants pursuant to this schedule, the Seller Clause 8.2.5 (a) shall (i) be made in writing and the Buyer shall jointly incorporate in the Draft Completion Statement the matters determined made available for collection by the parties at the offices of the Reporting Accountants, together with any adjustments which may have been Accountants at such time as they shall determine and (ii) unless otherwise agreed separately in writing between the Seller and the Buyer, and the Draft Completion Statement as so adjusted shall be the and the Draft Completion Statement so adjusted shall be the Completion Statement and shall be final and binding on by the parties include reasons for all purposeseach relevant determination.
Appears in 1 contract
Preparation. 3.1 As (a) The Completion Accounts shall be delivered to the Vendor ----------- by the Purchaser as soon as practicableis practicable following Completion and, and in any event no event, not later than the date falling 60 days from Completion (excluding the day of after Completion), the Buyer shall deliver to the Seller a draft of the Completion Statement (Draft Completion Statement). Prior to such delivery, the Buyer Purchaser shall so far as is practicable consult with the Seller Vendor with a view to reducing the potential areas of future disagreement.
3.2 (b) In order to enable the Seller Purchaser to prepare and the Purchaser's accountants to review the Draft Completion StatementAccounts, the Buyer Vendor shall keep up-to-date and make available to the Seller, Purchaser and to the Purchaser's accountants its officers employees and advisers, upon reasonable prior notice all books and records relating to the businesses of the Group Companies during normal office hourshours and cooperate with them with regard to the preparation and review of the Completion Accounts. The Vendor agrees, in so far as it is reasonable to do so, to make available the services of its employees to assist the Purchaser in the performance of its duties under this Agreement.
3.3 (c) If the Seller Vendor does not within 30 days from delivery of presentation to it of the Draft Completion Statement (excluding the date of delivery) (Review Period) Accounts give notice to the Buyer Purchaser that it disagrees with the Draft Completion StatementAccounts or any item thereof, such written notice stating the reasons for the disagreement in reasonable detail and specifying the adjustments which, in the Seller’s opinion should be made to the Draft Completion Statement (the Seller’s "Vendor's Disagreement Notice"), the Draft Completion Statement shall be ---------------------------- the Completion Statement and Accounts shall be final and binding on the parties for all purposes.
3.4 . If the Seller delivers Vendor gives a valid Seller’s Vendor's Disagreement Notice within the Review Periodsuch 30 days, the Seller and the Buyer parties shall attempt in good faith to reach agreement in respect of the Draft Completion Statement thereof and:
(a) if the Buyer and the Seller agree, in writing, on all adjustments to be made to the Draft Completion Statement within 21 days from delivery of the Seller’s Disagreement Notice (excluding the date of delivery), then, the agreed adjustments shall be incorporated into the Draft Completion Statement and the Draft Completion Statement so adjusted shall be the Completion Statement and shall be final and binding on the parties for all purposes.
(b) if they are unable to do so within 21 days from delivery of the Seller’s Disagreement Notice (excluding the date of delivery), the Seller such notification or the Buyer shall refer those matters which are in dispute in the Draft Completion Statement to the Reporting Accountants.
3.5 If, any other period as provided in paragraph 3.4(b), the Buyer and the Seller are unable to agree the Completion Statement then any matters in dispute may be referred by either party for determination, on the basis set out in paragraphs 3.6 to 3.11 (inclusive ) below to:
(a) the firm of independent chartered accountants agreed between the Seller and the Buyer within 15 Business Days of a request parties, either party may by either of them notice to the other, or, failing such agreement within such time,
(b) the firm of independent chartered accountants nominated by the President for the time being of the Institute of Chartered Accountants in England and Wales (or by such person as the President specifies for the purpose of making such nomination) on the written application of either the Seller or the Buyer.
(c) If any firm of independent chartered accountants selected or nominated pursuant to paragraphs 3.5(a)or 3.5(b) refuses to accept the appointment, the procedure set out in this paragraph 3.5 shall be repeated. (the firm of independent chartered accountants appointed pursuant to this paragraph 3.5 shall be the Reporting Accountants)
3.6 The Reporting Accountants shall be engaged jointly by the Seller and the Buyer on the terms set out in this paragraph 3 and otherwise on such terms as shall be agreed; provided that neither the Seller nor the Buyer shall unreasonably (having regard, inter alia, to the provisions of this paragraph 3) refuse its agreement to terms proposed by the Reporting Accountants or by the other party. If the terms of engagement of the Reporting Accountants have not been settled within 45 days of their identity having been determined (or such longer period as the Seller and the Purchaser may agree) then, unless the Seller or the Buyer is unreasonably refusing its agreement to those terms, those accountants shall be deemed never to have become the Reporting Accountants and new Reporting Accountants shall be selected in accordance with the provisions of this Agreement.
3.7 Except to the extent that the Seller and the Buyer agree otherwise, and save as provided by the remaining provision of this paragraph 3, the Reporting Accountants shall determine their own procedure but apart from procedural matters and as otherwise set out in this Agreement shall determine only:
(a) whether any of the arguments for an alteration to the Draft Completion Statement put forward in the Seller’s Disagreement Notice, and which remain in dispute, is correct in whole or in part; and
(b) if so, what alterations should be made to the Draft Completion Statement in order to correct the relevant inaccuracy in it;
3.8 The Reporting Accountants shall apply the accounting principles, policies, procedures, practices and techniques set out in paragraph 2 of Part 1 of schedule 11 and shall make their determination as soon as is reasonably practicable;
3.9 The procedure of the Reporting Accountants shall:
(a) give the Seller and the Buyer a reasonable opportunity to make written representations to them; and
(b) require that the Seller and the Buyer supply the other with a copy of any written representations at the same time as they are made to the Reporting Accountants;
3.10 In making their determination the Reporting Accountants shall act as experts and not as arbitrators and their determination of any matter falling within their jurisdiction shall Completion Accounts be final and binding on the Seller and the Buyer save in the event of manifest error (when the relevant part of their determination shall be void and the matter shall be remitted referred to the Reporting Accountants for correction(as defined in Clause 3.2(e) or fraud.
3.11 The expenses below) (including VAT) of the Reporting Accountants shall be borne as they shall direct or, failing such direction, equally between the Buyer and the Seller.
3.12 Within 5 Business Days of any written determination by the Reporting Accountants pursuant to this schedule, the Seller and the Buyer shall jointly incorporate in the Draft Completion Statement the matters determined by the Reporting Accountants, together with any adjustments which may have been agreed separately in writing between the Seller and the Buyer, and the Draft Completion Statement as so adjusted shall be the and the Draft Completion Statement so adjusted shall be the Completion Statement and shall be final and binding on the parties for all purposes.an "Appointment Notice"). ------------------
Appears in 1 contract
Samples: Agreement for the Sale and Purchase of Shares (Dynatech Corp)
Preparation. 3.1 As soon as practicable, and in any event no later than the date falling 60 days from Completion (excluding the day of Completion), the Buyer The Seller shall deliver to the Seller a draft of Purchaser, no later than 60 (sixty) days following the Completion Statement (Draft Completion Statement). Prior to such deliveryClosing Date, the Buyer shall so far as is practicable consult with the Seller with a view to reducing the potential areas of disagreementDraft Closing Statement.
3.2 In order to enable the Seller to review prepare the Draft Completion Closing Statement, the Buyer Purchaser shall keep up-to-date and, subject to reasonable notice, make available to the Seller, its officers employees ’s representatives and advisers, upon reasonable prior notice to the Seller’s accountants all books and records and access to all relevant systems relating to the Target Group during normal office hourshours and co-operate with them with regard to the preparation, review, agreement or determination of the Closing Statement. The Purchaser agrees, in so far as it is reasonable to do so, to make available the employees of the Target Group to assist the Seller in the performance of its duties under this Schedule.
3.3 If the Seller Purchaser does not within 30 (thirty) days from delivery to of receipt (or deemed receipt) by it of the Draft Completion Closing Statement (excluding the date of delivery) (Review Period) give notice to the Buyer Seller that it disagrees with the Draft Completion StatementClosing Statement or any item thereof, such notice stating the reasons for the disagreement in reasonable detail and specifying the adjustments which, in the SellerPurchaser’s opinion opinion, should be made to the Draft Completion Closing Statement (the Seller“Purchaser’s Disagreement Notice”), the Draft Completion Closing Statement shall be the Completion Statement and shall be final and binding on the parties Seller and the Purchaser for all purposes.
3.4 . If the Seller delivers Purchaser gives a valid SellerPurchaser’s Disagreement Notice within the Review Periodsuch 30 (thirty) days, the Seller and the Buyer Purchaser shall attempt in good faith to reach agreement in respect of the Draft Completion Closing Statement and:
(a) if the Buyer and the Seller agree, in writing, on all adjustments to be made to the Draft Completion Statement within 21 days from delivery of the Seller’s Disagreement Notice (excluding the date of delivery), then, the agreed adjustments shall be incorporated into the Draft Completion Statement and the Draft Completion Statement so adjusted shall be the Completion Statement and shall be final and binding on the parties for all purposes.
(b) if they are unable to do so within 21 (twenty one) days from delivery of the Seller’s Disagreement Notice (excluding the date of delivery)such notification, the Seller or the Buyer shall refer those matters which are in dispute in Purchaser may by notice to the other require that the Draft Completion Closing Statement be referred to the Reporting Accountants.
3.5 If. Upon such referral, as provided all matters contained in paragraph 3.4(b), the Buyer Draft Closing Statement other than those items which are the subject of the referral or which are affected thereby shall become final and the Seller are unable to agree the Completion Statement then any matters in dispute may be referred by either party for determination, binding on the basis set out in paragraphs 3.6 to 3.11 (inclusive ) below to:
(a) the firm of independent chartered accountants agreed between the Seller and the Buyer within 15 Business Days of a request by either of them to the other, or, failing such agreement within such time,
(b) the firm of independent chartered accountants nominated by the President for the time being of the Institute of Chartered Accountants in England and Wales (or by such person as the President specifies for the purpose of making such nomination) on the written application of either the Seller or the BuyerPurchaser.
(c) If any firm of independent chartered accountants selected or nominated pursuant to paragraphs 3.5(a)or 3.5(b) refuses to accept the appointment, the procedure set out in this paragraph 3.5 shall be repeated. (the firm of independent chartered accountants appointed pursuant to this paragraph 3.5 shall be the Reporting Accountants)
3.6 3.4 The Reporting Accountants shall be engaged jointly by the Seller and the Buyer Purchaser on the terms set out in this paragraph 3 and otherwise on such terms as shall be agreed; provided that neither the Seller nor the Buyer Purchaser shall unreasonably (having regard, inter alia, to the provisions of this paragraph 3) refuse its agreement to terms proposed by the Reporting Accountants or by the other partyParty. If the terms of engagement of the Reporting Accountants have not been settled within 45 (forty five) days of their identity having been determined (or such longer period as the Seller and the Purchaser may agree) then, unless the Seller or the Buyer Purchaser is unreasonably refusing its agreement to those terms, those accountants shall be deemed never to have become the Reporting Accountants and new Reporting Accountants shall be selected in accordance with the provisions of this Agreement.
3.7 3.5 Except to the extent that the Seller and the Buyer Purchaser agree otherwise, and save as provided by the remaining provision of this paragraph 3, the Reporting Accountants shall determine their own procedure but apart from procedural matters and as otherwise set out in this Agreement shall determine onlybut:
(a) whether any of the arguments for an alteration to the Draft Completion Statement put forward in the Seller’s Disagreement Notice, and which remain in dispute, is correct in whole or in part; and
(b) if so, what alterations should be made to the Draft Completion Statement in order to correct the relevant inaccuracy in it;
3.8 The Reporting Accountants shall apply the accounting principles, policies, procedures, practices and techniques set out in paragraph 2 of Part 1 of schedule 11 and shall make their determination as soon as is reasonably practicable;
3.9 The procedure of the Reporting Accountants shall:
(a) give the Seller and the Buyer a reasonable opportunity to make written representations to them; and
(b) require that the Seller and the Buyer supply the other with a copy of any written representations at the same time as they are made to the Reporting Accountants;
3.10 In making their determination the Reporting Accountants shall act as experts and not as arbitrators and their determination of any matter falling within their jurisdiction shall be final and binding on the Seller and the Buyer save in the event of manifest error (when the relevant part of their determination shall be void and the matter shall be remitted to the Reporting Accountants for correction) or fraud.
3.11 The expenses (including VAT) of the Reporting Accountants shall be borne as they shall direct or, failing such direction, equally between the Buyer and the Seller.
3.12 Within 5 Business Days of any written determination by the Reporting Accountants pursuant to this schedule, the Seller and the Buyer shall jointly incorporate in the Draft Completion Statement the matters determined by the Reporting Accountants, together with any adjustments which may have been agreed separately in writing between the Seller and the Buyer, and the Draft Completion Statement as so adjusted shall be the and the Draft Completion Statement so adjusted shall be the Completion Statement and shall be final and binding on the parties for all purposes.
Appears in 1 contract
Preparation. 3.1 As (a) The Completion Accounts shall be delivered to the Vendor and the Vendor's Accountants by the Purchaser as soon as practicableis practicable following Completion and, and in any event no event, not later than the date falling 60 days from Completion (excluding the day of Completion), the Buyer shall deliver to the Seller a draft of the Completion Statement (Draft Completion Statement)28 February 2001. Prior to such delivery, the Buyer Purchaser shall so far as is practicable consult with the Seller Vendor and the Vendor's Accountants with a view to reducing the potential areas of future disagreement.
3.2 (b) In order to enable the Seller Purchaser to prepare and the Vendor and Vendor's Accountants to review the Draft Completion StatementAccounts, the Buyer Purchaser shall procure that the Group Companies shall keep up-to-date and make available to the SellerVendor and to the Vendor's Accountants their books, its officers employees records and advisers, upon reasonable prior notice all books and records working papers relating to the businesses of the Group Companies and the German Net Assets as at Completion during normal office hourshours and cooperate with them with regard to the preparation and review of the Completion Accounts. The Vendor agrees to make available to the Purchaser and the Purchaser's Accountants its books, records and working papers relating to the businesses of the Group Companies and the German Net Assets as at Completion during normal office hours and, in so far as it is reasonable to do so, to make available the services of its employees to assist the Purchaser in the performance of its duties under this Clause 3.
3.3 (c) If the Seller Vendor does not within 30 45 days from delivery of presentation to it of the Draft Completion Statement (excluding the date of delivery) (Review Period) Accounts give notice to the Buyer Purchaser that it disagrees with the Draft Completion StatementAccounts or any item thereof, such written notice stating the reasons for the disagreement in reasonable detail and specifying the adjustments which, in the Seller’s opinion should be made to the Draft Completion Statement (the Seller’s "Vendor's Disagreement Notice"), the Draft Completion Statement shall be the Completion Statement and Accounts shall be final and binding on the parties for all purposes.
3.4 the purpose of this Clause 3. If the Seller delivers Vendor gives a valid Seller’s Vendor's Disagreement Notice within the Review Periodsuch 30 days, the Seller and the Buyer parties shall attempt in good faith to reach agreement in respect of the Draft Completion Statement thereof and:
(a) if the Buyer and the Seller agree, in writing, on all adjustments to be made to the Draft Completion Statement within 21 days from delivery of the Seller’s Disagreement Notice (excluding the date of delivery), then, the agreed adjustments shall be incorporated into the Draft Completion Statement and the Draft Completion Statement so adjusted shall be the Completion Statement and shall be final and binding on the parties for all purposes.
(b) if they are unable to do so within 21 days from delivery of such notification or any other period as agreed between the Seller’s Disagreement Notice (excluding parties, either party may by notice to the date of delivery), other require that the Seller or Completion Accounts to the Buyer shall refer those matters which are in dispute in the Draft Completion Statement extent not agreed be referred to the Reporting AccountantsAccountants (as defined in Clause 3.2(e) below) (an "Appointment Notice").
3.5 If, as provided in paragraph 3.4(b)(d) Within 21 days of the giving of an Appointment Notice, the Buyer Purchaser may by notice to the Vendor indicate that, in the light of the fact that the Vendor has not accepted the Completion Accounts in their entirety, the Purchaser wishes the Reporting Accountants to consider matters relating to the Completion Accounts in addition to those specified in the Vendor's Disagreement Notice, such notice stating in reasonable detail the reasons why and in what respects the Purchaser believes that the Completion Accounts should be altered (the "Purchaser's Disagreement Notice"). Within 7 days of the giving of a Purchaser's Disagreement Notice, the Vendor may by notice to the Purchaser indicate that, in light of the Purchaser's Disagreement Notice, the Vendor wishes the Reporting Accountants to consider matters relating to the Completion Accounts in addition to those specified in the Vendor's Disagreement Notice, such notice stating in reasonable detail the reasons why and in what respects the Vendor believes that the Completion Accounts should be altered and the Seller are unable to agree the Completion Statement then any matters Vendor's Disagreement Notice shall be amended in dispute may be referred by either party for determination, on the basis set out in paragraphs 3.6 to 3.11 (inclusive ) below to:accordance with such notice.
(ae) the Such firm of independent chartered accountants agreed as the Vendor and the Purchaser may agree (or in default of nomination by agreement between the Seller Vendor and the Buyer within 15 Business Days of a request by either of them to the otherPurchaser, or, failing such agreement within such time,
(b) the firm of independent chartered accountants nominated by the President for the time being of the Institute of Chartered Accountants in England and Wales (or by such person as the President specifies for the purpose of making such nominationWales) on the written application of either the Seller or the Buyer.
(c) If any firm of independent chartered accountants selected or nominated pursuant to paragraphs 3.5(a)or 3.5(b) refuses to accept the appointment, the procedure set out in this paragraph 3.5 shall be repeated. (the firm of independent chartered accountants appointed pursuant to this paragraph 3.5 shall be the "Reporting Accountants)
3.6 The Reporting Accountants ") shall be engaged jointly by the Seller and the Buyer parties on the terms set out in this paragraph 3 Clause 3.2(e) and otherwise on such terms as shall be agreed; agreed provided that neither the Seller nor the Buyer party shall unreasonably (having regard, inter alia, to the provisions of this paragraph 3Clause 3.2) refuse its agreement to terms proposed by the Reporting Accountants or by the other party. If the terms of engagement of the Reporting Accountants have not been settled within 45 days of their identity having been determined (or such longer period as the Seller and the Purchaser parties may agree) then, unless the Seller or the Buyer one party is unreasonably refusing its agreement to those terms, those accountants shall be deemed never to have become the Reporting Accountants and new Reporting Accountants shall be selected in accordance with the provisions of this AgreementClause.
3.7 (f) Except to the extent that the Seller and the Buyer parties agree otherwise, and save as provided by the remaining provision of this paragraph 3, the Reporting Accountants shall determine their own procedure but but:
(i) apart from procedural matters and as otherwise set out in this Agreement shall determine only:
(aA) whether any of the arguments for an alteration to the Draft Completion Statement Accounts put forward in the Seller’s Vendor's Disagreement Notice, and which remain in dispute, Notice or the Purchaser's Disagreement Notice is correct in whole or in part; and
(bB) if so, what alterations should be made to the Draft Completion Statement Accounts in order to correct the relevant inaccuracy in it;
3.8 The Reporting Accountants ; and in doing so shall apply the accounting principles, policies, procedures, practices and techniques principles set out in paragraph 2 of Part 1 of schedule 11 and Schedule 6;
(ii) shall make their determination pursuant to paragraph (i) above as soon as is reasonably practicable;
3.9 The (iii) the procedure of the Reporting Accountants shall:
(aA) give the Seller and the Buyer parties a reasonable opportunity to make written and oral representations to them; and;
(bB) require that the Seller and the Buyer each party supply the other with a copy of any written representations at the same time as they are made to the Reporting Accountants;
3.10 In making (C) permit each party to be present while oral submissions are being made by the other party; and
(iv) for the avoidance of doubt, the Reporting Accountants shall not be entitled to determine the scope of their own jurisdiction.
(g) The determination of the Reporting Accountants pursuant to Clause 3.2(f) shall (i) be made in writing delivered to the registered offices of the Vendor and the Purchaser and (ii) unless otherwise agreed by the parties include reasons for each relevant determination.
(h) The Reporting Accountants shall act as experts and not as arbitrators and their determination of any matter falling within their jurisdiction shall be final and binding on the Seller and the Buyer parties save in the event of manifest error (when the relevant part of their determination shall be void and the matter shall be remitted to the Reporting Accountants for correction). In particular, without limitation:
(i) or fraudtheir determination shall be deemed to be incorporated into the Completion Accounts, which shall then be final and binding on the parties save as aforesaid;
(ii) their determination of any fact which they have found it necessary to determine for their determination pursuant to Clause 3.2(f)(i) shall be final and binding on the parties.
3.11 (i) The expenses (including VAT) of the Reporting Accountants Accountant shall be borne as they shall direct at the time they make any determination under Clause 3.2
(f) (i) or, failing such direction, equally between the Buyer Vendor, on the one hand, and the SellerPurchaser, on the other.
3.12 Within 5 Business Days of any written determination by (j) The parties shall co-operate with the Reporting Accountants pursuant to and comply with their reasonable requests made in connection with the carrying out of their duties under this scheduleAgreement. In particular, without limitation, the Seller Purchaser shall in relation to the German Net Assets keep up-to-date and procure that the Group Companies keep up-to-date and, subject to reasonable notice, make available to the Vendor's representatives, the Purchaser's Accountants and the Buyer Reporting Accountants the books, records and working papers relating to the businesses of the Group Companies and the German Net Assets as at Completion during normal office hours during the period from Completion down to the agreement or relevant determination of the Completion Accounts.
(k) Subject to Clause 3.2(l), nothing in this Clause 3.2 shall jointly incorporate in entitle a party or the Draft Completion Statement the matters determined Reporting Accountants access to any information or document which is protected by legal professional privilege, or which has been prepared by the Reporting Accountants, together other party or its accountants or other professional advisers with a view to assessing the merits of any adjustments which may have been agreed separately in writing between the Seller and the Buyer, and the Draft Completion Statement as so adjusted claim or argument.
(l) A party shall not be the and the Draft Completion Statement so adjusted shall be the Completion Statement and shall be final and binding on the parties for all purposes.entitled by reason of Clause 3.2
Appears in 1 contract
Samples: Sale and Purchase Agreement (Krug International Corp)
Preparation. 3.1 As soon as practicable, and in any event no No later than the date falling 60 20 days from Completion (excluding the day of following Completion), the Buyer shall deliver to the Seller Sellers a draft of the Completion Working Capital Statement (the "Draft Completion Working Capital Statement"). Prior to such delivery, delivery the Buyer shall so far as is practicable consult with the Seller Sellers with a view to reducing the potential areas of disagreement.
3.2 In order to enable the Seller Sellers to review and agree the Draft Completion Working Capital Statement, the Buyer shall keep up to date and subject to reasonable notice, make available to the Seller, its officers employees Sellers' representatives and advisers, upon reasonable prior notice to the Sellers' accountants all books and records relating to the Group Company during normal office hourshouse and co-operate with them with regard to the agreement of the Draft Working Capital Statement.
3.3 If the Seller does Sellers do not within 30 20 days from delivery of presentation to it of the Draft Completion Working Capital Statement (excluding the date of delivery) (Review Period) give notice to the Buyer that it disagrees with the Draft Completion StatementWorking Capital Statement or any item thereof, such notice stating the reasons for the disagreement in reasonable detail and specifying the adjustments which, in the Seller’s Sellers’ opinion should be made to the Draft Completion Working Capital Statement (the Seller’s "Disagreement Notice"), the Draft Completion Working Capital Statement shall be the Completion Statement and shall be final and binding on the parties for all purposes.
3.4 If the Seller delivers a valid Seller’s Disagreement Notice within the Review Period20 day period referred to in paragraph 3.3, the Seller Sellers’ give a Disagreement Notice, the Sellers and the Buyer shall attempt in good faith to reach agreement in respect of the Draft Completion Working Capital Statement and:
(a) if the Buyer and the Seller agree, in writing, on all adjustments to be made to the Draft Completion Statement within 21 days from delivery of the Seller’s Disagreement Notice (excluding the date of delivery), then, the agreed adjustments shall be incorporated into the Draft Completion Statement and the Draft Completion Statement so adjusted shall be the Completion Statement and shall be final and binding on the parties for all purposes.
(b) if they are unable to do so within 21 2 days from delivery of such notification the Seller’s Disagreement Notice (excluding the date of delivery), the Seller Sellers or the Buyer shall refer those matters which are in dispute in may by notice to the other require that the Draft Completion Working Capital Statement be referred to the Reporting AccountantsAccountants (an "Appointment Notice").
3.5 If, as provided in paragraph 3.4(b), the Buyer and the Seller are unable to agree the Completion Statement then any matters in dispute may be referred by either party for determination, on the basis set out in paragraphs 3.6 to 3.11 (inclusive ) below to:
(a) the firm of independent chartered accountants agreed between the Seller and the Buyer within 15 Business Days of a request by either of them to the other, or, failing such agreement within such time,
(b) the firm of independent chartered accountants nominated by the President for the time being of the Institute of Chartered Accountants in England and Wales (or by such person as the President specifies for the purpose of making such nomination) on the written application of either the Seller or the Buyer.
(c) If any firm of independent chartered accountants selected or nominated pursuant to paragraphs 3.5(a)or 3.5(b) refuses to accept the appointment, the procedure set out in this paragraph 3.5 shall be repeated. (the firm of independent chartered accountants appointed pursuant to this paragraph 3.5 shall be the Reporting Accountants)
3.6 The Reporting Accountants shall be engaged jointly by the Seller Sellers and the Buyer on the terms set out in this paragraph 3 and otherwise on such terms as shall be agreed; provided that neither the Seller Sellers nor the Buyer shall unreasonably (having regard, inter alia, to the provisions of this paragraph 3) refuse its agreement to terms proposed by the Reporting Accountants or by the other party. If the terms of engagement of the Reporting Accountants have not been settled within 45 days 5 Business Days of their identity having been determined (or such longer period as the Seller Sellers and the Purchaser Buyer may agree) then, unless the Seller Sellers or the Buyer is are unreasonably refusing its agreement to those terms, those accountants shall be deemed never to have become the Reporting Accountants and new Reporting Accountants shall be selected in accordance with the provisions of this Agreement.
3.7 3.6 Except to the extent that the Seller Sellers and the Buyer agree otherwise, and save as provided by the remaining provision of this paragraph 3, the Reporting Accountants shall determine their own procedure but but:-
3.6.1 apart from procedural matters and as otherwise set out in this Agreement shall determine only:
(a) whether any of the arguments for an alteration alternation to the Draft Completion Working Capital Statement put forward in the Seller’s Buyer's Disagreement Notice, and which remain in dispute, Notice is correct in whole or in part; and
(b) if so, what alterations should be made to the Draft Completion Working Capital Statement in order to correct the relevant inaccuracy in it;
3.8 The Reporting Accountants 3.6.2 shall apply the accounting principles, policies, procedures, practices and techniques principles set out in paragraph 2 of Part 1 of schedule 11 and Schedule 3;
3.6.3 shall make their determination as soon as is reasonably practicablepursuant to paragraph 3.6.1 above, within 5 days of their appointment in accordance with paragraph 3.5 of this Schedule (or failing this no later than 30 July 2007);
3.9 The 3.6.4 the procedure of the Reporting Accountants shall:
(a) give the Seller Sellers and the Buyer a reasonable opportunity to make written representations to them; and;
(b) require that the Seller and the Buyer each party supply the other with a copy of any written representations at the same time as they are made to the Reporting Accountants;; and
3.10 In making (c) for the avoidance of doubt, the Reporting Accountants shall not be entitled to determine the scope of their own jurisdiction.
3.7 The determination of the Reporting Accountants pursuant to paragraph 3.6.1 shall:-
3.7.1 be made in writing and made available for collection by the Sellers and the Buyer at the offices of the Reporting Accountants at such time as they shall determine; and
3.7.2 unless otherwise agreed by the Sellers and the Buyer include reasons for each relevant determination.
3.8 The Reporting Accountants shall act as experts and not as arbitrators and their determination of any matter falling within their jurisdiction shall be final and binding on the Seller Sellers and the Buyer save in the event of manifest error (when the relevant part of their determination shall be void and the matter shall be remitted to the Reporting Accountants for correction) or fraud). In particular, without limitation their determination shall be deemed to be incorporated into the Draft Working Capital Statement.
3.11 3.9 The expenses (including VAT) of the Reporting Accountants shall be borne as they shall direct at the time they make any determination under paragraph 3.6.1(a) or, failing such direction, equally between the Buyer Buyer, on the one hand, and the SellerSellers, on the other.
3.10 The Sellers and Buyer shall co-operate with the Reporting Accountants and comply with their reasonable requests made in connection with the carrying out of their duties under this Agreement. In particular, without limitation, the Buyer shall keep up to date and, subject to reasonable notice, make available to the Reporting Accountants all books and records relating to the Company during normal office hours during the period from the appointment of the Reporting Accountants down to the making of the relevant determination.
3.11 Subject to paragraph 3.12, nothing in this Schedule shall entitle any party or the Reporting Accountants access to any information or document which is protected by legal professional privilege, or which has been prepared by the other party or its accountants and other professional advisors with a view to assessing the merits of any claim or argument.
3.12 Within 5 Business Days A party shall not be entitled by reason of any written determination by paragraph 3.11 to refuse to supply such part or parts of documents as contain only the facts on which the relevant claim or argument is based.
3.13 Each party and the Reporting Accountants shall, and shall procure that its accountants and other advisers shall, keep all information and documents provided to the pursuant to this scheduleparagraph 3 confidential and shall not use the same for any purpose, except for disclosure or use in connection with the preparation of the Draft Working Capital Statement, the Seller and the Buyer shall jointly incorporate in the Draft Completion Statement the matters determined by proceedings of the Reporting Accountants, together with Accountants or other matter arising out of this Agreement or in defending any adjustments which may have been agreed separately in writing between the Seller and the Buyer, and the Draft Completion Statement as so adjusted shall be the and the Draft Completion Statement so adjusted shall be the Completion Statement and shall be final and binding on the parties for all purposesclaim or argument or alleged claim or argument relating to this Agreement or its subject matter.
Appears in 1 contract
Preparation. 3.1 As soon rent Asset Statement (together, the Draft Completion Accounts) as xxx practicable, and in any event no not later than the date falling 60 days from Completion (excluding the day 20 Business Days, follo tion. 20 Business Days following receipt of Completion), the Buyer shall deliver to the Seller a draft of the Completion Statement (Draft Completion Statement). Prior to such delivery, the Buyer shall so far as is practicable consult with the Seller with a view to reducing the potential areas of disagreement.
3.2 In order to enable the Seller to review the Draft Completion StatementAccounts, th to the Buyer shall make available to a written notice (the Seller, its officers employees and advisers, upon reasonable prior notice all books and records relating to Response Notice) stating whether o grees with the Group during normal office hours.
3.3 Draft Completion Accounts. If the Seller does not within 30 days from delivery agree tion Accounts, the Response Notice shall specify in reasonable detail ea and the adjustments which the Seller considers should be made to it the tion Accounts. the 20 Business Day period referred to in paragraph 3.2, the Buyer shall er and its professional advisers access to such of the Company’s financi ing records as the Seller reasonably requires in order for the Seller to re tion Accounts. Such access shall be provided in the form of copy docu s and records in electronic format. r: the Seller notifies the Buyer in the Response Notice that the Seller agre Draft Completion Statement (excluding Accounts; or the Seller does not deliver a Response Notice in accordance with xxxxx ft Completion Accounts shall, with effect from the date of delivery) the Response er does not deliver a Response Notice, the expiry of the 20 Business Da d to in paragraph 3.2), be deemed agreed between, and finally binding Seller and shall constitute the Completion Accounts and the Net Curren ent. xxxxx delivers a Response Notice in accordance with paragraph 3.2, the hall, during the period of 20 Business Days commencing on the date of se Notice (Review the Discussion Period) give notice ), discuss the disputed matters set o se Notice in good faith with a view to seeking agreement on them. ng the Discussion Period, the Buyer that it disagrees with and the Draft Completion Statement, such notice stating the reasons for the disagreement Seller reach agreement in reasonable detail and specifying the adjustments which, w puted matters set out in the Seller’s opinion should Response Notice and the consequential adj be made to the Draft Completion Statement (the Seller’s Disagreement Notice)Accounts, the Draft Completion Statement shall be the Completion Statement and shall be final and binding on the parties for all purposes.
3.4 If the Seller delivers a valid Seller’s Disagreement Notice within the Review Period, the Seller and the Buyer shall attempt in good faith to reach agreement in respect of the Draft Completion Statement and:
(a) if the Buyer and the Seller agree, in writing, on all adjustments to be made to the Draft Completion Statement within 21 days from delivery of the Seller’s Disagreement Notice (excluding the date of delivery), then, the agreed adjustments shall be incorporated into the Draft Completion Statement and the Draft Completion Statement so adjusted shall be the Completion Statement and shall be final and binding on the parties for all purposes.
(b) if they are unable to do so within 21 days from delivery of the Seller’s Disagreement Notice (excluding the date of delivery), the Seller or the Buyer shall refer those matters which are in dispute in the Draft Completion Statement to the Reporting Accountants.
3.5 If, as provided in paragraph 3.4(b), the Buyer and the Seller are unable to agree the Completion Statement then any matters in dispute may be referred by either party for determination, on the basis set out in paragraphs 3.6 to 3.11 (inclusive ) below to:
(a) the firm of independent chartered accountants agreed between the Seller and the Buyer within 15 Business Days of a request by either of them to the other, or, failing such agreement within such time,
(b) the firm of independent chartered accountants nominated by the President for the time being of the Institute of Chartered Accountants in England and Wales (or by such person as the President specifies for the purpose of making such nomination) on the written application of either the Seller or the Buyer.
(c) If any firm of independent chartered accountants selected or nominated pursuant to paragraphs 3.5(a)or 3.5(b) refuses to accept the appointment, the procedure set out in this paragraph 3.5 shall be repeated. (the firm of independent chartered accountants appointed pursuant to this paragraph 3.5 shall be the Reporting Accountants)
3.6 The Reporting Accountants shall be engaged jointly by the Seller and the Buyer on the terms set out in this paragraph 3 and otherwise on such terms as shall be agreed; provided that neither the Seller nor the Buyer shall unreasonably (having regard, inter alia, to the provisions of this paragraph 3) refuse its agreement to terms proposed by the Reporting Accountants or by the other party. If the terms of engagement of the Reporting Accountants have not been settled within 45 days of their identity having been determined (or such longer period as the Seller and the Purchaser may agree) then, unless the Seller or the Buyer is unreasonably refusing its agreement to those terms, those accountants shall be deemed never to have become the Reporting Accountants and new Reporting Accountants shall be selected in accordance with the provisions of this Agreement.
3.7 Except to the extent that the Seller and the Buyer agree otherwise, and save as provided by the remaining provision of this paragraph 3, the Reporting Accountants shall determine their own procedure but apart from procedural matters and as otherwise set out in this Agreement shall determine only:
(a) whether any of the arguments for an alteration to the Draft Completion Statement put forward in the Seller’s Disagreement Notice, and which remain in dispute, is correct in whole or in part; and
(b) if so, what alterations should be made to the Draft Completion Statement in order to correct the relevant inaccuracy in it;
3.8 The Reporting Accountants shall apply the accounting principles, policies, procedures, practices and techniques set out in paragraph 2 of Part 1 of schedule 11 and shall make their determination as soon as is reasonably practicable;
3.9 The procedure of the Reporting Accountants shall:
(a) give the Seller and the Buyer a reasonable opportunity to make written representations to them; and
(b) require that the Seller and the Buyer supply the other with a copy of any written representations at the same time as they are made to the Reporting Accountants;
3.10 In making their determination the Reporting Accountants shall act as experts and not as arbitrators and their determination of any matter falling within their jurisdiction shall be final and binding on the Seller and the Buyer save in the event of manifest error (when the relevant part of their determination shall be void and the matter shall be remitted to the Reporting Accountants for correction) or fraud.
3.11 The expenses (including VAT) of the Reporting Accountants shall be borne as they shall direct or, failing such direction, equally between the Buyer and the Seller.
3.12 Within 5 Business Days of any written determination by the Reporting Accountants pursuant to this schedule, the Seller and the Buyer shall jointly incorporate in the Draft Completion Statement the matters determined by the Reporting Accountants, together with any adjustments which may have been agreed separately in writing between the Seller and the Buyer, and the Draft Completion Statement as so adjusted shall be the and the Draft Completion Statement so adjusted shall be the Completion Statement and shall be final and binding on the parties for all purposes.Accou
Appears in 1 contract
Samples: Share Purchase Agreement
Preparation. 3.1 As soon as practicable, and in any event no No later than the date falling 60 days from Completion (excluding following Closing the day of Completion), the Buyer Purchasers shall deliver to the Seller a draft of the Completion Statement (Draft Completion Net Asset Statement). Prior to such delivery, the Buyer Purchasers shall so far as is practicable consult with the Seller with a view to reducing the potential areas of disagreement.
3.2 In order to enable the Seller Purchasers to review prepare and agree the Draft Completion Net Asset Statement, the Buyer Seller shall keep up-to-date and, subject to reasonable notice, make available to the Seller, its officers employees Purchasers' representatives and advisers, upon reasonable prior notice to the Purchasers' accountants all books and records relating to the Group during normal office hourshours and co-operate with them with regard to the preparation and agreement of the Draft Net Asset Statement.
3.3 The Purchasers agree insofar as it is reasonable to do so, to make available the services of the employees of the Group to assist the Seller in the performance of its duties under this Agreement. If the Seller does not within 30 days from delivery of presentation to it of the Draft Completion Net Asset Statement (excluding the date of delivery) (Review Period) give notice to the Buyer Purchasers that it disagrees with the Draft Completion StatementNet Asset Statement or any item thereof, such notice stating the reasons for the disagreement in reasonable detail and specifying the adjustments which, in the Seller’s Sellers opinion should be made to the Draft Completion Net Asset Statement (the Seller’s "Sellers Disagreement Notice"), the Draft Completion Net Asset Statement shall be the Completion Statement and shall be final and binding on the parties for all purposes.
3.4 . If the Seller delivers gives a valid Seller’s Sellers Disagreement Notice within the Review Periodsuch 30 days, the Seller shall keep up to date and, subject to reasonable notice, make available to the Purchasers representatives and the Buyer Purchasers' accountants all books and records relating to the relevant part of the Group during normal office hours during the period from the date of the Seller's Disagreement Notice until the date on which such disagreement is resolved. The Seller and the Purchasers shall attempt in good faith to reach agreement in respect of the Draft Completion Net Asset Statement and:
(a) if the Buyer and the Seller agree, in writing, on all adjustments to be made to the Draft Completion Statement within 21 days from delivery of the Seller’s Disagreement Notice (excluding the date of delivery), then, the agreed adjustments shall be incorporated into the Draft Completion Statement and the Draft Completion Statement so adjusted shall be the Completion Statement and shall be final and binding on the parties for all purposes.
(b) if they are unable to do so within 21 days from delivery of the Seller’s Disagreement Notice (excluding the date of delivery)such notification, the Seller or either of the Buyer shall refer those matters Purchasers may by notice to the other (an "Appointment Notice") require that the Draft Net Asset Statement be referred to. An independent accountant which are in dispute in the Draft Completion Statement to the Reporting Accountants.
3.5 If, as provided in paragraph 3.4(b), the Buyer and the Seller are unable to agree the Completion Statement then any matters in dispute may be referred by either party for determination, on the basis set out in paragraphs 3.6 to 3.11 (inclusive ) below to:
(a) the firm absence of independent chartered accountants agreed agreement between the Seller and the Buyer within 15 Business Days of a request by either of them to the other, or, failing such agreement within such time,
(b) the firm of independent chartered accountants nominated parties shall be appointed by the President for the time being of the Institute of Chartered Accountants in England and Wales (or the "Reporting Accountants").
3.4 Within 21 days of the giving of an Appointment Notice, the Purchasers may by such person as the President specifies for the purpose of making such nomination) on the written application of either notice to the Seller or indicate that, in the Buyerlight of the fact that the Seller has not accepted the Draft Net Asset Statement in its entirety, it wishes the Reporting Accountants to consider matters relating to the Draft Net Asset Statement in addition to those specified in the Seller's Disagreement Notice, such notice stating in reasonable detail the reasons why and in what respects the Purchaser believes that the Draft Net Asset Statement should be altered (the "Purchaser's Disagreement Notice").
(c) If any firm of independent chartered accountants selected or nominated pursuant to paragraphs 3.5(a)or 3.5(b) refuses to accept the appointment, the procedure set out in this paragraph 3.5 shall be repeated. (the firm of independent chartered accountants appointed pursuant to this paragraph 3.5 shall be the Reporting Accountants)
3.6 The Reporting Accountants shall be engaged jointly by the Seller and the Buyer Purchasers on the terms set out in this paragraph 3 and otherwise on such terms as shall be agreed; provided that neither the Seller nor not the Buyer Purchasers shall unreasonably (having regard, inter alia, to the provisions of this paragraph 3) refuse its agreement to terms proposed by the Reporting Accountants or by the other party. If the terms of engagement of the Reporting Accountants have not been settled within 45 days of their identity having been determined (or such longer period as the Seller and the Purchaser Purchasers may agree) then, unless the Seller or the Buyer is Purchasers are unreasonably refusing its agreement to those terms, those accountants shall be deemed never to have become the Reporting Accountants and new Reporting Accountants shall be selected in accordance with the provisions of this Agreementparagraph 3.3 above.
3.7 3.6 Except to the extent that the Seller and the Buyer Purchasers agree otherwise, and save as provided by the remaining provision of this paragraph 3, the Reporting Accountants shall determine their own procedure but but:
3.6.1 apart from procedural matters and as otherwise set out in this Agreement shall determine only:
(ai) whether any of the arguments for an alteration to the Draft Completion Net Asset Statement put forward in the Purchasers' Disagreement Notice or the Seller’s 's Disagreement Notice, and which remain in dispute, Notice is correct in whole or in part; and
(bii) if so, what alterations should be made to the Draft Completion Net Asset Statement in order to correct the relevant inaccuracy in it;
3.8 The Reporting Accountants 3.6.2 shall apply the accounting principles, policies, procedures, practices and techniques principles set out in paragraph 2 of Part 1 of schedule 11 and Schedule 6;
3.6.3 shall make their determination pursuant to paragraph 3.6.1 above as soon as is reasonably practicable;
3.9 The 3.6.4 the procedure of the Reporting Accountants shall:
(ai) give the Seller and the Buyer Purchasers a reasonable opportunity to make written and oral representations to them; and;
(bii) require that the Seller and the Buyer each party supply the other with a copy of any written representations at the same time as they are made to the Reporting Accountants;
3.10 In making (iii) permit each party to be present while oral submissions are being made by the other party; and
3.6.5 for the avoidance of doubt, the Reporting Accountants shall not be entitled to determine the scope of their own jurisdiction.
3.7 The determination of the Reporting Accountants pursuant to paragraph 3.6.1 shall:
3.7.1 be made in writing;
3.7.2 be made available to the Seller and the Purchasers at the same time; and
3.7.3 unless otherwise agreed by the Seller and the Purchasers include reasons for each relevant determination.
3.8 The Reporting Accountants shall act as experts and not as arbitrators and their determination of any matter falling within their jurisdiction shall be final and binding on the Seller and the Buyer Purchasers save in the event of manifest error (when the relevant part of their determination shall be void and the matter shall be remitted to the Reporting Accountants for correction) or fraud). In particular, without limitation their determination shall be deemed to be incorporated into the Draft Net Asset Statement.
3.11 3.9 The expenses (including VAT) of the Reporting Accountants shall be borne as they shall direct at the time they make any determination under paragraph 3.6.1 or, failing such direction, equally in two equal proportions between the Buyer Purchasers (acting together), on the one hand, and the Seller, on the other.
3.10 The Seller and the Purchasers (acting together) shall co-operate with the Reporting Accountants and comply with their reasonable requests made in connection with the carrying out of their duties under this Agreement. In particular, without limitation, each party shall keep up-to-date and, subject to reasonable notice and the request itself being unreasonable, make available to the other parties representatives, the other parties accountants and the Reporting Accountants all books and records relating to the Group during normal office hours during the period from the appointment of the Reporting Accountants down to the making of the relevant determination.
3.11 Nothing in this paragraph 3 shall entitle a party or the Reporting Accountants access to any information or document which is protected by legal professional privilege, or which has been prepared by the other party or its accountants and other professional advisers with a view to assessing the merits of any claim or argument.
3.12 Within 5 Business Days of any written determination by Each party and the Reporting Accountants shall, and shall procure that its accountants and other advisers shall, keep all information and documents provided to them pursuant to this scheduleparagraph 3 confidential and shall not use the same for any purpose, except for disclosure or use in connection with the preparation of the Draft Net Asset Statement, the Seller and the Buyer shall jointly incorporate in the Draft Completion Statement the matters determined by proceedings of the Reporting Accountants, together with Accountants or another matter arising out of this Agreement or in defending any adjustments claim or argument or alleged claim or argument relating to this Agreement or its subject matter.
3.13 The provisions of this paragraph 3 (and in particular paragraph 3.8) are without prejudice to the provisions of Clause 11.5 which may have been agreed separately in writing provides for a further adjustment between the Seller and the Buyer, and the Draft Completion Statement as so adjusted shall be the and the Draft Completion Statement so adjusted shall be the Completion Statement and shall be final and binding on the parties for all purposesPurchasers in relation to slow moving stock.
Appears in 1 contract
Samples: International Share Sale Agreement (Cooper Companies Inc)
Preparation. 3.1 As soon as practicable, and in any event no No later than the date falling 60 days from Completion (excluding following Closing the day of Completion), the Buyer Seller shall deliver to the Seller a draft of Purchaser the Completion Statement (Draft Completion Closing Statement). Prior to such delivery, the Buyer shall so far as is practicable consult with the Seller with a view to reducing the potential areas of disagreement.
3.2 In order to enable the Seller to review prepare and agree the Draft Completion Closing Statement, the Buyer Purchaser shall, or shall procure that the relevant members of the Purchaser’s Group shall, keep up-to-date and, subject to reasonable notice, make available to the Seller’s representatives and to the Seller’s accountants, its officers employees and advisers, upon reasonable prior notice all books and records relating to the Group during normal office hourshours and co-operate with them with regard to the preparation and agreement of the Draft Closing Statement. The Purchaser agrees, in so far as it is reasonable to do so, to make available the services of the employees of the Group to assist the Seller in the performance of its duties under this Agreement.
3.3 If the Seller Purchaser does not within 30 60 days from delivery of presentation to it of the Draft Completion Closing Statement (excluding the date of delivery) (Review Period) give notice to the Buyer Seller that it disagrees with the Draft Completion StatementClosing Statement or any item thereof, such notice stating the reasons for the disagreement in reasonable detail and specifying the adjustments which, in the SellerPurchaser’s opinion should be made to the Draft Completion Closing Statement (the Seller“Purchaser’s Disagreement Notice”), the Draft Completion Closing Statement shall be the Completion Statement and shall be final and binding on the parties for all purposes.
3.4 . If the Seller delivers Purchaser gives a valid SellerPurchaser’s Disagreement Notice within such 60 days, the Review Purchaser shall, or shall procure that the relevant members of the Purchaser’s Group shall, keep up to date and, subject to reasonable notice, make available to the Seller’s representatives and the Seller’s accountants, all books and records relating to the relevant part of the Group during normal office hours during the period from the date of the Purchaser’s Disagreement Notice until the date on which such disagreement is resolved (the “Disagreement Notice Period”), and subject to any confidentiality obligations or any legal privilege, or except as required by law, the Seller will make available to the Purchaser’s representatives and the Buyer Purchaser’s accountants during the Disagreement Notice Period, all relevant personnel and information as the Purchaser may reasonably request in order to enable it to review the Draft Closing Statement provided that this does not unreasonably interfere with the operation of the business of the Seller’s Group. The Seller and the Purchaser shall attempt in good faith to reach agreement in respect of the Draft Completion Closing Statement and:
(a) if the Buyer and the Seller agree, in writing, on all adjustments to be made to the Draft Completion Statement within 21 days from delivery of the Seller’s Disagreement Notice (excluding the date of delivery), then, the agreed adjustments shall be incorporated into the Draft Completion Statement and the Draft Completion Statement so adjusted shall be the Completion Statement and shall be final and binding on the parties for all purposes.
(b) if they are unable to do so within 21 30 days from delivery of the Seller’s Disagreement Notice (excluding the date of delivery)such notification, the Seller or the Buyer shall refer those matters which are in dispute in Purchaser may by notice to the other require that the Draft Completion Statement Closing Statement, or such items thereof in respect of which disagreement exists, be referred to the Reporting Accountants. Upon such referral, all matters contained in the Draft Closing Statement other than those items which are the subject of the referral or which are affected thereby shall become final and binding on the parties.
3.5 If, as provided in paragraph 3.4(b), the Buyer and the Seller are unable to agree the Completion Statement then any matters in dispute may be referred by either party for determination, on the basis set out in paragraphs 3.6 to 3.11 (inclusive ) below to:
(a) the firm of independent chartered accountants agreed between the Seller and the Buyer within 15 Business Days of a request by either of them to the other, or, failing such agreement within such time,
(b) the firm of independent chartered accountants nominated by the President for the time being of the Institute of Chartered Accountants in England and Wales (or by such person as the President specifies for the purpose of making such nomination) on the written application of either the Seller or the Buyer.
(c) If any firm of independent chartered accountants selected or nominated pursuant to paragraphs 3.5(a)or 3.5(b) refuses to accept the appointment, the procedure set out in this paragraph 3.5 shall be repeated. (the firm of independent chartered accountants appointed pursuant to this paragraph 3.5 shall be the Reporting Accountants)
3.6 3.4 The Reporting Accountants shall be engaged jointly by the Seller and the Buyer Purchaser on the terms set out in this paragraph 3 and otherwise on such terms as shall be agreed; provided that neither the Seller nor the Buyer Purchaser shall unreasonably (having regard, inter alia, to the provisions of this paragraph 3) refuse its agreement to terms proposed by the Reporting Accountants or by the other party. If the terms of engagement of the Reporting Accountants have not been settled within 45 days of their identity having been determined (or such longer period as the Seller and the Purchaser may agree) then, unless the Seller or the Buyer Purchaser is unreasonably refusing its agreement to those terms, those accountants shall be deemed never to have become the Reporting Accountants and new Reporting Accountants shall be selected in accordance with by the provisions Seller and the Purchaser within seven days of this Agreementa notice by one to the other requiring such agreement or failing such agreement to be nominated on the application by either of them to the President of the Institute of Chartered Accountants of England and Wales.
3.7 3.5 Except to the extent that the Seller and the Buyer Purchaser agree otherwise, and save as provided by the remaining provision of this paragraph 3, the Reporting Accountants shall determine their own procedure but but:
3.5.1 apart from procedural matters and as otherwise set out in this Agreement shall determine only:
(ai) whether any the items in dispute should be settled in favour of the arguments for an alteration to the Draft Completion Statement put forward in the Seller’s Disagreement Notice, and which remain in dispute, is correct Purchaser or Seller in whole or in part; and
(bii) if so, what alterations should be made to the Draft Completion Closing Statement in order to correct the relevant inaccuracy in it;
3.8 The Reporting Accountants 3.5.2 shall apply the accounting principles, policies, procedures, practices and estimation techniques set out in paragraph 2 of Part 1 of schedule 11 and above;
3.5.3 shall make their determination pursuant to paragraph 3.5.1 above as soon as is reasonably practicable;
3.9 The 3.5.4 the procedure of the Reporting Accountants shall:
(ai) give the Seller and the Buyer Purchaser a reasonable opportunity to make written representations to them; and;
(bii) require that the Seller and the Buyer each party supply the other with a copy of any written representations at the same time as they are made to the Reporting Accountants;; and
3.10 In making (iii) for the avoidance of doubt, the Reporting Accountants shall not be entitled to determine the scope of their own jurisdiction.
3.6 The Reporting Accountants shall send the Seller and the Purchaser a copy of their determination pursuant to paragraph 3.5.1 above within three months of their appointment. Such determination shall:
3.6.1 be made in writing; and
3.6.2 unless otherwise agreed by the Seller and the Purchaser include reasons for each relevant determination.
3.7 The Reporting Accountants shall act as experts and not as arbitrators and their determination of any matter falling within their jurisdiction shall be final and binding on the Seller and the Buyer Purchaser save in the event of manifest error (when the relevant part of their determination shall be void and the matter shall be remitted to the Reporting Accountants for correction) or fraud). In particular, their determination shall be deemed to be incorporated into the Draft Closing Statement.
3.11 3.8 The expenses (including VATany irrecoverable VAT thereon) of the Reporting Accountants shall be borne as they shall direct at the time they make any determination under paragraph 3.5.1(i) above or, failing such direction, equally between the Buyer Purchaser, on the one hand, and the Seller, on the other.
3.12 Within 5 Business Days of any written determination by 3.9 The Seller and the Purchaser shall co-operate with the Reporting Accountants pursuant to and comply with their reasonable requests made in connection with the carrying out of their duties under this scheduleAgreement. In particular, the Seller Purchaser and the Buyer Seller shall, and shall jointly incorporate in procure that the Draft Completion Statement relevant members of the matters determined by Purchaser’s Group and the Seller’s Group, as the case may be, shall, keep up-to-date and, subject to reasonable notice, make available to the Seller’s or the Purchaser’s representatives, as the case may be, the Seller’s or the Purchaser’s accountants, as the case may be, and the Reporting Accountants, together all books and records relating to the Group during normal office hours during the period from the appointment of the Reporting Accountants down to the making of the relevant determination.
3.10 Nothing in this Schedule 6 shall entitle a party or the Reporting Accountants access to any information or document which is protected by legal professional privilege or which has been prepared by the other party or its accountants or other professional advisers with a view to assessing the merits of any adjustments claim or argument, provided that a party shall not be entitled to refuse to supply such part or parts of documents as contain only the facts on which may have been agreed separately in writing between the Seller relevant claim or argument is based.
3.11 Each party and the BuyerReporting Accountants shall, and shall procure that its accountants and other advisers shall, keep all information and documents provided to them pursuant to this Schedule 6 confidential and shall not use the same for any purpose, except for disclosure or use in connection with the preparation of the Draft Completion Statement as so adjusted shall be Closing Statement, the and proceedings of the Draft Completion Statement so adjusted shall be the Completion Statement and shall be final and binding on the parties for all purposesReporting Accountants or another matter arising out of this Agreement or in defending any claim or argument or alleged claim or argument relating to this Agreement or its subject matter.
Appears in 1 contract
Samples: Share and Business Sale Agreement (Harris Corp /De/)
Preparation. 3.1 As soon Within 15 (fifteen) days from the Commencement Date of this Agreement, or any other date as practicableagreed between the Parties, the TPO shall provide to SCCL a 3 monthly Mine Plan/Schedule covering the first 3 months of the Term of the Agreement. Within 30 (thirty) days from the Commencement Date of this Agreement, or any other date as agreed between the parties, the TPO shall provide to SCCL a 12 month Mine Plan/Schedule covering the first 12 months of the Term of the Agreement. The Mine Plan/Schedule shall be consistent with the Production Requirements of this Agreement, and in any event no later than the date falling 60 a format consistent for use in good mine planning practices. SCCL shall be allowed a period of 7 (seven) days from Completion the issuance of the 3 monthly Mine Plan/Schedule and 14 (excluding fourteen) days from the day issuance of Completion)the 12 month Mine Plan/Schedule, for the purposes of review and to state any objections. If no such objections are submitted in writing to the TPO, then the Mine Plan’(s)/Schedule’(s) shall be considered to be accepted by SCCL. In the event that objections to the Mine Plan’(s)/Schedule’(s) are submitted, then SCCL and the TPO shall conclude a mutually satisfactory resolution to the objection(s) Revisions to the Mine Plan/Schedule The TPO shall not make any revisions or changes to the Mine Plan/Schedule without the express written approval by SCCL. The TPO may, at any time, provide to SCCL, proposed revisions to the Mine Plan/Schedule in a format consistent for use in good mine planning practices. SCCL shall be allowed 7 days from the issuance of the proposed revision, to review and to state any objections. If no such objections are submitted in writing to the TPO, then the revised Mine Plan/Schedule shall be considered to be accepted by SCCL. SCCL shall provide the TPO with the latest transportation schedule on a monthly basis. Any changes to this schedule shall be notified immediately by SCCL to the TPO. Monthly Mine Plan The TPO shall provide SCCL with a rolling 3 monthly Mine Plan/Schedule which shall be up-dated and submitted to SCCL at least 3 weeks prior to the completion of the Mine Plan/Schedule that is in current use. The 3 monthly Mine Plan/Schedule shall contain such information as necessary for good mine planning and scheduling practice as reasonably requested by SCCL and otherwise agreed to by SCCL. Other Plans required TPO shall provide SCCL with plan for the development and extraction of coal from a panel, atleast 15 days prior to the starting of the work in that panel. TPO shall furnish all the details, support plan and other requirements in such plan as required by applicable statutes and directions given by DGMS. TPO to meet Production Requirements The TPO must progress the Work in accordance with this Agreement including the Mine Plan/Schedule, the Buyer shall deliver Production Requirements and all schedules of production contained in the Mine Plan. Failure to the Seller a draft of the Completion Statement (Draft Completion Statement). Prior to such delivery, the Buyer shall so far as is practicable consult with the Seller with a view to reducing the potential areas of disagreement.
3.2 In order to enable the Seller to review the Draft Completion Statement, the Buyer shall make available to the Seller, its officers employees and advisers, upon reasonable prior notice all books and records relating to the Group during normal office hours.
3.3 meet Production Requirements If the Seller does not within 30 days from delivery TPO is unable to it of the Draft Completion Statement (excluding the date of delivery) (Review Period) give notice to the Buyer or anticipates that it disagrees with may be unable to meet the Draft Completion Statement, such notice stating Production requirements it must immediately notify SCCL and provide details of: The reason for its inability to meet the reasons for Production Requirements; and The steps it has taken or proposes to take to minimize any production losses to SCCL. The decision of SCCL on the disagreement in reasonable detail and specifying the adjustments which, in the Seller’s opinion should be made to the Draft Completion Statement (the Seller’s Disagreement Notice), the Draft Completion Statement shall be the Completion Statement and delays shall be final and binding on binding. Obligation under Serve or Pay Basis In the parties for all purposes.
3.4 If event of the Seller delivers a valid SellerTPO’s Disagreement Notice within inability to meet the Review Periodproduction requirements as decided upon in the Mine Schedule/ Mine Plan, the Seller and the Buyer TPO shall attempt in good faith to reach agreement in respect of the Draft Completion Statement and:
(a) if the Buyer and the Seller agree, in writing, on all adjustments to be made liable to the Draft Completion Statement within 21 days from delivery of the Seller’s Disagreement Notice (excluding the date of delivery), then, the agreed adjustments shall be incorporated into the Draft Completion Statement and the Draft Completion Statement so adjusted shall be the Completion Statement and shall be final and binding on the parties for all purposes.
(b) if they are unable to do so within 21 days from delivery of the Seller’s Disagreement Notice (excluding the date of delivery), the Seller or the Buyer shall refer those matters which are in dispute in the Draft Completion Statement to the Reporting Accountants.
3.5 If, as provided in paragraph 3.4(b), the Buyer and the Seller are unable to agree the Completion Statement then any matters in dispute may be referred by either party for determination, on the basis set out in paragraphs 3.6 to 3.11 (inclusive ) below to:
(a) the firm of independent chartered accountants agreed between the Seller and the Buyer within 15 Business Days of a request by either of them to the other, or, failing such agreement within such time,
(b) the firm of independent chartered accountants nominated by the President for the time being of the Institute of Chartered Accountants in England and Wales (or by such person as the President specifies for the purpose of making such nomination) on the written application of either the Seller or the Buyer.
(c) If any firm of independent chartered accountants selected or nominated pursuant to paragraphs 3.5(a)or 3.5(b) refuses to accept the appointment, the procedure set out in this paragraph 3.5 shall be repeated. (the firm of independent chartered accountants appointed pursuant to this paragraph 3.5 shall be the Reporting Accountants)
3.6 The Reporting Accountants shall be engaged jointly by the Seller and the Buyer on the terms set out in this paragraph 3 and otherwise on such terms as shall be agreed; provided that neither the Seller nor the Buyer shall unreasonably (having regard, inter alia, to the provisions of this paragraph 3) refuse its agreement to terms proposed by the Reporting Accountants or by the other party. If the terms of engagement of the Reporting Accountants have not been settled within 45 days of their identity having been determined (or such longer period as the Seller and the Purchaser may agree) then, unless the Seller or the Buyer is unreasonably refusing its agreement to those terms, those accountants shall be deemed never to have become the Reporting Accountants and new Reporting Accountants shall be selected penalty in accordance with the provisions of this Agreementclause 8.4.
3.7 Except to the extent that the Seller and the Buyer agree otherwise, and save as provided by the remaining provision of this paragraph 3, the Reporting Accountants shall determine their own procedure but apart from procedural matters and as otherwise set out in this Agreement shall determine only:
(a) whether any of the arguments for an alteration to the Draft Completion Statement put forward in the Seller’s Disagreement Notice, and which remain in dispute, is correct in whole or in part; and
(b) if so, what alterations should be made to the Draft Completion Statement in order to correct the relevant inaccuracy in it;
3.8 The Reporting Accountants shall apply the accounting principles, policies, procedures, practices and techniques set out in paragraph 2 of Part 1 of schedule 11 and shall make their determination as soon as is reasonably practicable;
3.9 The procedure of the Reporting Accountants shall:
(a) give the Seller and the Buyer a reasonable opportunity to make written representations to them; and
(b) require that the Seller and the Buyer supply the other with a copy of any written representations at the same time as they are made to the Reporting Accountants;
3.10 In making their determination the Reporting Accountants shall act as experts and not as arbitrators and their determination of any matter falling within their jurisdiction shall be final and binding on the Seller and the Buyer save in the event of manifest error (when the relevant part of their determination shall be void and the matter shall be remitted to the Reporting Accountants for correction) or fraud.
3.11 The expenses (including VAT) of the Reporting Accountants shall be borne as they shall direct or, failing such direction, equally between the Buyer and the Seller.
3.12 Within 5 Business Days of any written determination by the Reporting Accountants pursuant to this schedule, the Seller and the Buyer shall jointly incorporate in the Draft Completion Statement the matters determined by the Reporting Accountants, together with any adjustments which may have been agreed separately in writing between the Seller and the Buyer, and the Draft Completion Statement as so adjusted shall be the and the Draft Completion Statement so adjusted shall be the Completion Statement and shall be final and binding on the parties for all purposes.
Appears in 1 contract
Samples: Project Agreement
Preparation. 3.1 As soon as practicable, and in any event no 2.1 No later than the date falling 60 45 days from Completion (excluding the day of Completion)following Closing, the Buyer Purchaser shall deliver to the Seller a draft the Draft Closing Statement.
2.2 Each of the Completion Statement (Draft Completion Statement). Prior to such delivery, Seller and the Buyer Purchaser shall so far as is practicable consult co-operate with the Seller other with a view regard to reducing the potential areas preparation, review, agreement or determination of disagreement.
3.2 In order to enable the Seller to review the Draft Completion StatementClosing Statement and shall, the Buyer shall subject to reasonable notice, make available during normal office hours to the Seller, other party and its officers employees representatives and advisers, upon reasonable prior notice accountants all books and records relating to records, together with the Group during normal office hoursservices of any employees of the Group, as the other party may reasonably require.
3.3 2.3 If the Seller does not within 30 45 days from delivery of presentation to it of the Draft Completion Closing Statement (excluding the date of delivery) (Review Period) give notice to the Buyer Purchaser that it disagrees with the Draft Completion StatementClosing Statement or any item thereof, such notice stating the reasons for the disagreement in reasonable detail and specifying the adjustments which, in the Seller’s opinion opinion, should be made to the Draft Completion Closing Statement (the “Seller’s Disagreement Notice”), the Draft Completion Closing Statement shall be the Completion Statement and shall be final and binding on the parties for all purposes.
3.4 . If the Seller delivers gives a valid Seller’s Disagreement Notice within the Review Periodsuch 30 days, the Seller Purchaser and the Buyer Seller shall attempt in good faith to reach agreement in respect of the Draft Completion Closing Statement and:
(a) if the Buyer and the Seller agree, in writing, on all adjustments to be made to the Draft Completion Statement within 21 days from delivery of the Seller’s Disagreement Notice (excluding the date of delivery), then, the agreed adjustments shall be incorporated into the Draft Completion Statement and the Draft Completion Statement so adjusted shall be the Completion Statement and shall be final and binding on the parties for all purposes.
(b) if they are unable to do so within 21 days from delivery of the Seller’s Disagreement Notice (excluding the date of delivery)such notification, the Seller Purchaser or the Buyer shall refer those matters which are in dispute in Seller may by notice to the other require that the Draft Completion Closing Statement be referred to the Reporting Accountants.
3.5 If, as provided in paragraph 3.4(b), the Buyer and the Seller are unable to agree the Completion Statement then any matters in dispute may be referred by either party for determination, on the basis set out in paragraphs 3.6 to 3.11 (inclusive ) below to:
(a) the firm of independent chartered accountants agreed between the Seller and the Buyer within 15 Business Days of a request by either of them to the other, or, failing such agreement within such time,
(b) the firm of independent chartered accountants nominated by the President for the time being of the Institute of Chartered Accountants in England and Wales (or by such person as the President specifies for the purpose of making such nomination) on the written application of either the Seller or the Buyer.
(c) If any firm of independent chartered accountants selected or nominated pursuant to paragraphs 3.5(a)or 3.5(b) refuses to accept the appointment, the procedure set out in this paragraph 3.5 shall be repeated. (the firm of independent chartered accountants appointed pursuant to this paragraph 3.5 shall be the Reporting Accountants)
3.6 2.4 The Reporting Accountants shall be engaged jointly by the Seller Purchaser and the Buyer Seller on the terms set out in this paragraph 3 2 and otherwise on such terms as shall be agreed; provided that neither the Seller Purchaser nor the Buyer Seller shall unreasonably (having regard, inter alia, to the provisions of this paragraph 32) refuse its agreement to terms proposed by the Reporting Accountants or by the other party. If the terms of engagement of the Reporting Accountants have not been settled within 45 15 days of their identity having been determined (or such longer period as the Seller Purchaser and the Purchaser Seller may agree) then, unless the Seller Purchaser or the Buyer Seller is unreasonably refusing its agreement to those terms, those accountants shall be deemed never to have become the Reporting Accountants and new Reporting Accountants shall be selected in accordance with the provisions of this Agreement. For the avoidance of doubt, any work undertaken by the Reporting Accountants in relation to the unaudited Draft Closing Statement prepared by the Purchaser shall be undertaken in accordance with paragraph 2.5 below and shall not be conducted to audit standard.
3.7 2.5 Except to the extent that the Seller Purchaser and the Buyer Seller agree otherwise, and save as provided by the remaining provision of this paragraph 3, the Reporting Accountants shall determine their own procedure but but:
2.5.1 apart from procedural matters and as otherwise set out in this Agreement shall determine only:
(ai) whether any of the arguments for an alteration to the Draft Completion Closing Statement put forward in the Seller’s Disagreement Notice, and which remain in dispute, Notice is correct in whole or in part; and
(bii) if so, what alterations should be made to the Draft Completion Closing Statement in order to correct the relevant inaccuracy in it;
3.8 The Reporting Accountants 2.5.2 shall apply the accounting principles, policies, procedures, practices and estimation techniques set out in paragraph 2 of Part 1 of schedule 11 and above;
2.5.3 shall make their determination pursuant to paragraph 2.5.1 above as soon as is reasonably practicable;practicable and in any event, within 20 days; and
3.9 The 2.5.4 the procedure of the Reporting Accountants shall:
(ai) give the Seller Purchaser and the Buyer Seller a reasonable opportunity to make written representations to them; and;
(bii) require that the Seller and the Buyer Purchaser supply the other with a copy of any written representations at the same time as they are made to the Reporting Accountants;; and
3.10 In making (iii) permit the Seller and the Purchaser to be present while oral submissions are being made by the other party, for the avoidance of doubt, the Reporting Accountants shall not be entitled to determine the scope of their own jurisdiction.
2.6 The determination of the Reporting Accountants pursuant to paragraph 2.5.1 above:
2.6.1 shall be made available to the Purchaser and the Seller in writing; and
2.6.2 unless otherwise agreed by the Purchaser and the Seller shall include reasons for each relevant determination.
2.7 The Reporting Accountants shall act as experts and not as arbitrators and their determination of any matter falling within their jurisdiction shall be final and binding on the Seller and the Buyer Purchaser save in the event of manifest error (when the relevant part of their determination shall be void and the matter shall be remitted to the Reporting Accountants for correction) or fraud). In particular, their determination shall be deemed to be incorporated into the Draft Closing Statement.
3.11 2.8 The expenses (including VAT) of the Reporting Accountants shall be borne as they shall direct at the time they make any determination under paragraph 2.5.1(i) above or, failing such direction, equally between the Buyer Purchaser and the Seller.
3.12 Within 5 Business Days of any written determination by 2.9 The Seller and Purchaser shall co-operate with the Reporting Accountants and comply with their reasonable requests made in connection with the carrying out of their duties under this Agreement. In particular the Purchaser shall keep up-to-date and, subject to reasonable notice, make available to the Seller’s representatives, the Seller’s accountants and the Reporting Accountants all books and records relating to the Group and access to all relevant systems relating to the Group (as the case may be) during normal office hours as the Reporting Accountants may reasonably request during the period from the appointment of the Reporting Accountants down to the making of the relevant determination.
2.10 Nothing in this Schedule shall entitle a party or the Reporting Accountants access to any information or document which is protected by legal professional or litigation privilege, provided that neither the Seller nor the Purchaser shall be entitled to refuse to supply such part or parts of documents as contain only the facts on which the relevant claim or argument is based.
2.11 The Seller and the Purchaser and the Reporting Accountants shall, and shall procure that its accountants and other advisers shall, keep all information and documents provided to them pursuant to this scheduleSchedule confidential and shall not use the same for any purpose, except for disclosure or use in connection with the preparation of the Draft Closing Statement, the Seller and the Buyer shall jointly incorporate in the Draft Completion Statement the matters determined by proceedings of the Reporting Accountants, together with any adjustments which may have been agreed separately in writing between the Seller and the Buyer, and the Draft Completion Statement as so adjusted shall be the and the Draft Completion Statement so adjusted shall be the Completion Statement and shall be final and binding on the parties for all purposesAccountants or another matter arising out of this Agreement.
Appears in 1 contract
Preparation. 3.1 As soon as practicable, and in any event no later than 4.1 Within 60 Business Days of receipt by the date falling 60 days from Completion (excluding the day of Completion), the Buyer shall deliver to the Seller a draft Purchaser of the Completion Statement (Draft Completion Statement). Prior to such delivery, the Buyer shall so far as is practicable consult with the Seller with a view to reducing the potential areas of disagreement.
3.2 In order to enable the Seller to review the Draft Completion draft Net Current Asset Statement, the Buyer shall make available to the Seller, its officers employees Purchaser may serve a Purchaser’s Disagreement Notice and advisers, upon reasonable prior notice all books and records relating to the Group during normal office hours.
3.3 If the Seller does not within 30 days from delivery to it attach a schedule of the Draft Completion Statement (excluding the date those items in respect of delivery) (Review Period) give notice to the Buyer that which it disagrees with the Draft Completion Statement, such notice stating the draft Net Current Asset Statement together with reasons for the disagreement in reasonable detail and specifying detail. In the adjustments which, in the Seller’s opinion should be made to the Draft Completion Statement (the Seller’s Disagreement Notice)absence of such notice, the Draft Completion draft Net Current Asset Statement for each Company and in aggregate shall be become the Completion Net Current Asset Statement and shall be final and binding on the parties for all purposes.
3.4 4.2 If the Seller delivers Purchaser gives a valid SellerPurchaser’s Disagreement Notice, SCPLC may serve a Sellers’ Disagreement Notice stating its reasons for disagreement (in reasonable detail) with the Purchaser’s Disagreement Notice within 10 Business Days of receipt by SCPLC of the Review PeriodPurchaser’s Disagreement Notice. If SCPLC does not serve such a valid Sellers’ Disagreement Notice, the Seller draft Net Current Asset Statement for each Company and in aggregate as amended to reflect the Buyer shall attempt matters specified in good faith to reach agreement in respect of the Draft Completion Statement and:
(a) if the Buyer and the Seller agree, in writing, on all adjustments to be made to the Draft Completion Statement within 21 days from delivery of the SellerPurchaser’s Disagreement Notice (excluding the date of delivery), then, the agreed adjustments shall be incorporated into the Draft Completion Statement and the Draft Completion Statement so adjusted shall be the Completion Net Current Asset Statement and shall be final and binding on the parties for all purposes.
(b) . Within a further 10 Business Days, SCPLC and the Purchaser shall attempt in good faith to reach agreement in respect thereof and if they are unable to do so within 21 days from delivery of the Seller’s Disagreement Notice (excluding the date of delivery), the Seller then either SCPLC or the Buyer shall refer those matters which are in dispute in the Draft Completion Statement to the Reporting Accountants.
3.5 IfPurchaser may, as provided in paragraph 3.4(b), the Buyer and the Seller are unable to agree the Completion Statement then any matters in dispute may be referred by either party for determination, on the basis set out in paragraphs 3.6 to 3.11 (inclusive ) below to:
(a) the firm of independent chartered accountants agreed between the Seller and the Buyer within 15 Business Days of a request by either of them notice to the other, orgive an Appointment Notice. The Purchaser shall procure that after the service of a Purchaser’s Disagreement Notice, failing such agreement within such time,
it shall give SCPLC and its accountants access to the Purchaser’s accountants’ working papers and files (bwith the right to take copies at SCPLC’s expense) and personnel which or who are relevant to the firm of independent chartered accountants nominated by the President for the time being review of the Institute Purchaser’s Disagreement Notice by SCPLC or its accountants subject to the Sellers providing or procuring the provision of Chartered Accountants in England and Wales (or by such person as any hold harmless undertaking that the President specifies for the purpose of making such nomination) on the written application of either the Seller or the Buyer.
(c) Purchaser’s accountants may require. If any firm of independent chartered accountants selected or nominated pursuant to paragraphs 3.5(a)or 3.5(b) refuses to accept the appointmentan Appointment Notice is served, the procedure set out in this paragraph 3.5 shall be repeated. (the firm of independent chartered accountants appointed pursuant to this paragraph 3.5 shall be the Reporting Accountants)
3.6 The Reporting Accountants shall be engaged jointly by the Seller and the Buyer on the terms set out in this paragraph 3 and otherwise on such terms as shall be agreedPart 2; provided that neither the Seller SCPLC nor the Buyer Purchaser shall unreasonably (having regard, inter alia, to the provisions of this paragraph 3) refuse its agreement to terms proposed by the Reporting Accountants or by the other party. If the terms of engagement of the Reporting Accountants have not been settled within 45 days of their identity having been determined (or such longer period as the Seller and the Purchaser may agree) then, unless the Seller or the Buyer is unreasonably refusing its agreement to those terms, those accountants shall be deemed never to have become the Reporting Accountants and new Reporting Accountants shall be selected in accordance with the provisions of this Agreement.
3.7 4.3 Except to the extent that the Seller and the Buyer parties agree otherwise, and save as provided by the remaining provision of this paragraph 3, the Reporting Accountants shall determine their own procedure but but:
4.3.1 apart from procedural matters and as otherwise set out in this Agreement shall determine only:
(ai) whether any of the arguments for an alteration to the Draft Completion draft Net Current Asset Statement put forward in the SellerSellers’ Disagreement Notice or the Purchaser’s Disagreement Notice, and which remain in dispute, Notice is correct in whole or in part; and
(bii) if so, what alterations should be made to the Draft Completion draft Net Current Asset Statement in order to correct the relevant inaccuracy in it;
3.8 The Reporting Accountants 4.3.2 shall apply the accounting policies, principles, policiespractices, proceduresterms and conditions, practices methods and techniques set out bases referred to in paragraph 2 of Part 1 of schedule 11 and this Schedule 6;
4.3.3 shall make their determination pursuant to paragraph 4.3.1 above as soon as is reasonably practicable;
3.9 The 4.3.4 the procedure of the Reporting Accountants shall:
(ai) give the Seller and the Buyer parties a reasonable opportunity to make written and oral representations to them; and;
(bii) require that the Seller and the Buyer parties supply the each other with a copy of any written representations at the same time as they are made to the Reporting Accountants;
3.10 In making (iii) permit each party to be present while oral submissions are being made by any other party;
4.3.5 for the avoidance of doubt, the Reporting Accountants shall only address and resolve differences of the parties and shall not otherwise be entitled to determine the scope of their own jurisdiction; and
4.3.6 there is no presumption that the treatment of any matter in dispute should or should not be changed from that in the draft Net Current Asset Statement and no objection should be made to any matter raised by the Purchaser’s Disagreement Notice on the grounds that the matter in respect of which such notice is raised is below any materiality level which might otherwise apply.
4.4 The determination of the Reporting Accountants pursuant to paragraph 4.3.1 shall (i) be made in writing and sent to the parties at such time as they shall determine and (ii) unless otherwise agreed by the parties, include reasons for each relevant determination.
4.5 The Reporting Accountants shall act as experts and not as arbitrators and their determination of any matter falling within their jurisdiction shall be final and binding on the Seller and the Buyer parties save in the event of manifest error (when the relevant part of their determination shall be void and the matter shall be remitted to the Reporting Accountants for correction) or fraud.
3.11 The expenses (including VAT) of the Reporting Accountants ). In particular, without limitation, their determination shall be borne deemed to be incorporated into the draft Net Current Asset Statement for each Company and in aggregate, which, as they adjusted, shall direct or, failing such direction, equally between the Buyer and the Seller.
3.12 Within 5 Business Days of any written determination by the Reporting Accountants pursuant to this schedule, the Seller and the Buyer shall jointly incorporate in the Draft Completion Statement the matters determined by the Reporting Accountants, together with any adjustments which may have been agreed separately in writing between the Seller and the Buyer, and the Draft Completion Statement as so adjusted shall be the and the Draft Completion Statement so adjusted shall be the Completion Statement and shall then be final and binding on the Sellers and the Purchaser save as aforesaid.
4.6 The parties shall co-operate with the Reporting Accountants and comply with their reasonable requests made in connection with the carrying out of their duties under this Agreement. In particular, without limitation, (i) the Purchaser shall keep up to date and, subject to reasonable notice, make available to SCPLC, SCPLC’s representatives and the Reporting Accountants its books and records relating to the relevant Group Companies during normal office hours during the period from the appointment of the Reporting Accountants down to the making of the relevant determination and (ii) during such period SCPLC shall and shall procure that its representatives shall subject to the Purchaser providing or procuring the provision of any hold harmless undertaking that SCPLC’s accountants may reasonably require and subject to reasonable notice make available to the Purchaser, the Purchaser’s representatives and the Reporting Accountants the working papers and files relating to the preparation of the draft Net Current Asset Statement.
4.7 Subject to paragraph 4.9, nothing in this paragraph 4 shall entitle a party or the Reporting Accountants access to any information or document which is protected by legal professional privilege, or which has been prepared by the other party or its accountants and other professional advisers with a view to assessing the merits of any claim or argument.
4.8 A party shall not be entitled by reason of paragraph 4.9 to refuse to supply such part or parts of documents as contain only the facts on which the relevant claim or argument is based.
4.9 Each party shall, and shall procure that its accountants and other advisers shall, instruct the Reporting Accountants to keep all information and documents provided to them pursuant to this paragraph 4 confidential and shall not use the same for all purposesany purpose, except for disclosure or use in connection with the preparation of the Net Current Asset Statement, the proceedings of the Reporting Accountants or another matter arising out of this Agreement or in defending any claim or argument or alleged claim or argument relating to this Agreement or its subject matter.
Appears in 1 contract
Samples: Share Purchase Agreement (Intercontinental Hotels Group PLC /New/)
Preparation. 3.1 (i) As soon as practicablepracticable following the Closing, and in any event no later than the date falling 60 days from Completion (excluding the day of Completion), the Buyer shall deliver cause the Company to prepare (with the Seller cooperation and assistance of Shareholder) a draft of the Completion Statement Reference Date Balance Sheet. The draft Reference Date Balance Sheet shall be prepared in accordance with the Accounting Principles as of the Reference Time (Draft Completion Statementand after the consummation of the transactions contemplated by Section 2.1(e), the second sentence of Section 5.5(a) and the Restructuring). Prior Buyer and Shareholder shall use their respective reasonable efforts to cause the draft Reference Date Balance Sheet to be completed within ninety (90) days following the Closing Date and, upon completion, such deliverydraft Reference Date Balance Sheet shall promptly be provided to Buyer, Buyer's Accountants, Shareholder and Shareholder's Accountants.
(ii) Following the distribution of the draft Reference Date Balance Sheet in accordance with Section 6.8(a)(i), Shareholder's Accountants shall be entitled to perform all procedures and take any other steps that Shareholder's Accountants, in the exercise of their professional judgment, deem appropriate to confirm that each item of the draft Reference Date Balance Sheet has been prepared in conformity with the standards set forth in Section 6.8(a)(i).
(iii) Immediately following the preparation and distribution of the draft Reference Date Balance Sheet, Buyer shall cause Buyer's Accountants to audit the draft Reference Date Balance Sheet, and such audit shall be conducted in accordance with United States generally accepted auditing standards and shall be sufficient to permit Buyer's Accountants to render their opinion to the effect that the Reference Date Balance Sheet fairly presents the financial position of the Company as of the Reference Time in accordance with the Accounting Principles as of the Reference Time (and after the consummation of the transactions contemplated by Section 2.1(e), the second sentence of Section 5.5(a) and the Restructuring).
(iv) Buyer shall so far as is practicable consult use reasonable efforts to cause Buyer's Accountants to deliver the draft audited Reference Date Balance Sheet, in accordance with Section 6.8(a)(iii) above, to each of Buyer, Shareholder and Shareholder's Accountants within ninety (90) days following the Seller with a view to reducing date of Buyer's Accountants' receipt of the potential areas of disagreementdraft Reference Date Balance Sheet.
3.2 In order to enable (v) During the Seller sixty (60) days following their receipt of the draft audited Reference Date Balance Sheet, both Buyer and Shareholder (in consultation with Shareholder's Accountants) shall have the opportunity to review the Draft Completion Statementdraft audited Reference Date Balance Sheet (together with Buyer's Accountants' working papers, the including any portion thereof pertaining to any proposed adjustment) and, during such sixty (60) day period, Shareholder, Shareholder's Accountants and Buyer shall make available have the right to propose to Buyer's Accountants those changes to the Sellerdraft audited Reference Date Balance Sheet that Shareholder, its officers employees and advisersShareholder's Accountants or Buyer determine to be appropriate to cause the draft audited Reference Date Balance Sheet to conform, upon reasonable prior notice in all books and records relating respects, to the Group during normal office hoursstandards set forth in Section 6.8(a)(i).
3.3 If (vi) Within the Seller does not within 30 days same ninety (90)day period set forth in Section 6.8(a)(iv), Buyer and Shareholder shall also provide one another and Buyer's Accountants with notices of any asset or liability which such Person proposes to ask Buyer's Accountants to reflect on, adjust or eliminate from the draft audited Reference Date Balance Sheet in order to prepare the Adjusted Reference Date Balance Sheet as contemplated by the definition of Special Adjustments.
(vii) Concurrent with the delivery to it Buyer and Shareholder of the Draft Completion Statement draft audited Reference Date Balance Sheet, Buyer shall cause Buyer's Accountants to prepare (excluding after consultation with Buyer and Shareholder), and to deliver, within ten (10) days after the date end of deliverythe ninety (90) day period referred to in Section 6.8(a)(vi), to Buyer, Shareholder and Shareholder's Accountants' drafts of (Review PeriodA) give notice the Adjusted Reference Date Balance Sheet which shall reflect the Special Adjustments as well as such other adjustments as Buyer's Accountants may deem appropriate and requested to be made by Shareholder or Buyer in the Buyer that it disagrees with notices referred to in Section 6.8(a)(vi), and (B) a certificate (the Draft Completion Statement"Purchase Price Certificate") showing the calculation of the Purchase Price, such notice stating the reasons for the disagreement describing in reasonable detail and specifying (1) the adjustments which, in the Seller’s opinion should be made to the Draft Completion Statement (audited Reference Date Balance Sheet in order to derive the Seller’s Disagreement Notice), the Draft Completion Statement shall be the Completion Statement Adjusted Reference Date Balance Sheet and shall be final and binding on the parties for all purposes.
3.4 If the Seller delivers a valid Seller’s Disagreement Notice within the Review Period, the Seller and the Buyer shall attempt in good faith to reach agreement in respect of the Draft Completion Statement and:
(a) if the Buyer and the Seller agree, in writing, on all stating that such adjustments to be have been made to the Draft Completion Statement within 21 days from delivery of the Seller’s Disagreement Notice (excluding the date of delivery), then, the agreed adjustments shall be incorporated into the Draft Completion Statement and the Draft Completion Statement so adjusted shall be the Completion Statement and shall be final and binding on the parties for all purposes.
(b) if they are unable to do so within 21 days from delivery of the Seller’s Disagreement Notice (excluding the date of delivery), the Seller or the Buyer shall refer those matters which are in dispute in the Draft Completion Statement to the Reporting Accountants.
3.5 If, as provided in paragraph 3.4(b), the Buyer and the Seller are unable to agree the Completion Statement then any matters in dispute may be referred by either party for determination, on the basis set out in paragraphs 3.6 to 3.11 (inclusive ) below to:
(a) the firm of independent chartered accountants agreed between the Seller and the Buyer within 15 Business Days of a request by either of them to the other, or, failing such agreement within such time,
(b) the firm of independent chartered accountants nominated by the President for the time being of the Institute of Chartered Accountants in England and Wales (or by such person as the President specifies for the purpose of making such nomination) on the written application of either the Seller or the Buyer.
(c) If any firm of independent chartered accountants selected or nominated pursuant to paragraphs 3.5(a)or 3.5(b) refuses to accept the appointment, the procedure set out in this paragraph 3.5 shall be repeated. (the firm of independent chartered accountants appointed pursuant to this paragraph 3.5 shall be the Reporting Accountants)
3.6 The Reporting Accountants shall be engaged jointly by the Seller and the Buyer on the terms set out in this paragraph 3 and otherwise on such terms as shall be agreed; provided that neither the Seller nor the Buyer shall unreasonably (having regard, inter alia, to the provisions of this paragraph 3) refuse its agreement to terms proposed by the Reporting Accountants or by the other party. If the terms of engagement of the Reporting Accountants have not been settled within 45 days of their identity having been determined (or such longer period as the Seller and the Purchaser may agree) then, unless the Seller or the Buyer is unreasonably refusing its agreement to those terms, those accountants shall be deemed never to have become the Reporting Accountants and new Reporting Accountants shall be selected in accordance with the provisions of this Agreement, and (2) the calculations used to derive the Purchase Price. Both Buyer and Shareholder shall have the opportunity to review the draft Adjusted Reference Date Balance Sheet and the Purchase Price Certificate during the sixty (60) days following their receipt thereof.
3.7 Except to (viii) In the extent that event of any dispute between Shareholder and Shareholder's Accountants, on the Seller and the Buyer agree otherwiseone hand, and save as provided by Buyer and Buyer's Accountants, on the remaining provision of this paragraph 3other hand, the Reporting Accountants shall determine their own procedure but apart from procedural matters and as otherwise set out in this Agreement shall determine only:
(a) whether regarding any of the arguments for an alteration adjustments proposed by Shareholder or Shareholder's Accountants, on the one hand, or Buyer or Buyer's Accountants, on the other hand, with respect to any item of the draft Reference Date Balance Sheet, the draft Adjusted Reference Date Balance Sheet, or the draft Purchase Price Certificate, which Shareholder and Shareholder's Accountants, on the one hand, and Buyer and Buyer's Accountants, on the other hand, cannot resolve within sixty (60) days after the receipt thereof, as the case may be, either Shareholder or Buyer shall have the right, upon delivery of written notice to the Draft Completion Statement put forward other party, to require that such dispute be resolved in accordance with the Seller’s Disagreement Noticeprovisions set forth in Section 6.8(b). Promptly following the resolution of any and all disputes with respect to any proposed adjustments to the draft Reference Date Balance Sheet, the draft Adjusted Reference Date Balance Sheet or the draft Purchase Price Certificate, Buyer shall cause Buyer's Accountants to prepare and deliver to Buyer and Shareholder the final audited Reference Date Balance Sheet, the final Adjusted Reference Date Balance Sheet and the final Purchase Price Certificate, each of which shall reflect all adjustments thereto which have been agreed upon by Shareholder and Shareholder's Accountants, on the one hand, and which remain in disputeBuyer and Buyer's Accountants, is correct in whole or in part; and
(b) if so, what alterations should be made to the Draft Completion Statement in order to correct the relevant inaccuracy in it;
3.8 The Reporting Accountants shall apply the accounting principles, policies, procedures, practices and techniques set out in paragraph 2 of Part 1 of schedule 11 and shall make their determination as soon as is reasonably practicable;
3.9 The procedure of the Reporting Accountants shall:
(a) give the Seller and the Buyer a reasonable opportunity to make written representations to them; and
(b) require that the Seller and the Buyer supply on the other with a copy of any written representations at the same time as they are made to the Reporting Accountants;
3.10 In making their determination the Reporting Accountants shall act as experts and not as arbitrators and their determination of any matter falling within their jurisdiction shall be final and binding on the Seller and the Buyer save in the event of manifest error (when the relevant part of their determination shall be void and the matter shall be remitted to the Reporting Accountants for correction) hand, or fraud.
3.11 The expenses (including VAT) of the Reporting Accountants shall be borne as they shall direct or, failing such direction, equally between the Buyer and the Seller.
3.12 Within 5 Business Days of any written determination by the Reporting Accountants which have been resolved pursuant to this schedule, the Seller and the Buyer shall jointly incorporate in the Draft Completion Statement the matters determined by the Reporting AccountantsSection 6.8(b), together with any adjustments which may have been agreed separately Buyer's Accountants' opinion on the Reference Date Balance Sheet.
(ix) Shareholder shall cooperate and comply with all reasonable requests of Buyer, the Company and Buyer's Accountants to assist such Persons in writing between accomplishing the Seller preparation of the Reference Date Balance Sheet, the Adjusted Reference Date Balance Sheet and the Purchase Price Certificate. Without limiting the foregoing, (A) each of Buyer, Shareholder, Buyer's Accountants and Shareholder's Accountants shall have full access to all relevant accounting, financial and other Books and Records reasonably requested by it in connection with the preparation, confirmation or review of the Reference Date Balance Sheet, the Adjusted Reference Date Balance Sheet and the Draft Completion Statement Purchase Price Certificate as so adjusted well as to Buyer's Accountants' working papers with respect thereto and draft opinion thereon, and (B) each party shall be make available to the other party and its accountants such personnel as they may reasonably request in connection with the preparation or confirmation of the Reference Date Balance Sheet, the Adjusted Reference Date Balance Sheet and the Draft Completion Statement so adjusted shall be Purchase Price Certificate or the Completion Statement and shall be final and binding on the parties for all purposesreview of Buyer's Accountants' draft opinion.
Appears in 1 contract
Preparation. 3.1 As soon as practicable, and in any event no No later than forty-five (45) days following the date falling 60 days from Completion (excluding the day of Completion)Closing Date, the Buyer Sellers shall deliver to the Seller a draft Purchaser drafts of the Completion Petroleum Products Stock Valuation Statement, Current Assets Valuation Statement, Capital Expenditures Valuation Statement and Scanraff Debt Valuation Statement (collectively, the “Draft Completion StatementStatements”). Prior to such delivery, the Buyer shall Sellers shall, so far as is practicable practicable, consult with the Seller Purchaser with a view to reducing reduce the potential areas of disagreement.
3.2 In order to enable the Seller Sellers to review prepare and agree to the Draft Completion StatementStatements, the Buyer Purchaser shall keep up-to-date and, subject to reasonable notice, make available to the Seller, its officers employees Sellers’ representatives and advisers, upon reasonable prior notice to the Sellers’ accountants all books and records relating to the Group Scanraff during normal office hourshours and co-operate with them with regard to the preparation of the Draft Statements. The Purchaser agrees, in so far as it is reasonable to do so, to make available the services of the employees of Scanraff to assist the Sellers in the performance of their duties under this Agreement.
3.3 If the Seller Purchaser does not within 30 fifteen (15) days from delivery of presentation to it of the Draft Completion Statement (excluding the date of delivery) (Review Period) Statements give notice to the Buyer Sellers that it disagrees with any of the Draft Completion StatementStatements or any item thereof, such notice stating the reasons for the disagreement in reasonable detail and specifying the adjustments which, in the SellerPurchaser’s opinion should be made to the Draft Completion Statement Statements (the Seller“Purchaser’s Disagreement Notice”), the Draft Completion Statement shall be the Completion Statement and Statements shall be final and binding on the parties for all purposes.
3.4 parties. If the Seller Purchaser delivers a valid SellerPurchaser’s Disagreement Notice within the Review Periodsuch fifteen (15) days, the Seller Purchaser shall keep up to date and, subject to reasonable notice, make available to the Sellers’ representatives and the Buyer Sellers’ accountants all books and records relating to the items forming part of the Purchaser’s Disagreement Notice during normal office hours during the period from the date of the Purchaser’s Disagreement Notice until the date on which such disagreement is resolved. The Sellers and the Purchaser shall attempt in good faith to reach agreement in respect of the Draft Completion Statement Statements and:
(a) if the Buyer and the Seller agree, in writing, on all adjustments to be made to the Draft Completion Statement within 21 days from delivery of the Seller’s Disagreement Notice (excluding the date of delivery), then, the agreed adjustments shall be incorporated into the Draft Completion Statement and the Draft Completion Statement so adjusted shall be the Completion Statement and shall be final and binding on the parties for all purposes.
(b) if they are unable to do so within 21 fifteen (15) days from delivery of the Seller’s Disagreement Notice (excluding the date of delivery)such notification, the Seller Sellers or the Buyer shall refer those matters which are in dispute in the Draft Completion Statement to the Reporting Accountants.
3.5 If, as provided in paragraph 3.4(b), the Buyer and the Seller are unable to agree the Completion Statement then any matters in dispute may be referred by either party for determination, on the basis set out in paragraphs 3.6 to 3.11 (inclusive ) below to:
(a) the firm of independent chartered accountants agreed between the Seller and the Buyer within 15 Business Days of a request by either of them to the other, or, failing such agreement within such time,
(b) the firm of independent chartered accountants nominated by the President for the time being of the Institute of Chartered Accountants in England and Wales (or by such person as the President specifies for the purpose of making such nomination) on the written application of either the Seller or the Buyer.
(c) If any firm of independent chartered accountants selected or nominated pursuant to paragraphs 3.5(a)or 3.5(b) refuses to accept the appointment, the procedure set out in this paragraph 3.5 shall be repeated. (the firm of independent chartered accountants appointed pursuant to this paragraph 3.5 shall be the Reporting Accountants)
3.6 The Reporting Accountants shall be engaged jointly by the Seller and the Buyer on the terms set out in this paragraph 3 and otherwise on such terms as shall be agreed; provided that neither the Seller nor the Buyer shall unreasonably (having regard, inter alia, to the provisions of this paragraph 3) refuse its agreement to terms proposed by the Reporting Accountants or by the other party. If the terms of engagement of the Reporting Accountants have not been settled within 45 days of their identity having been determined (or such longer period as the Seller and the Purchaser may agree) then, unless by notice to the Seller or other require that the Buyer is unreasonably refusing its agreement to those terms, those accountants shall dispute on the Draft Statements be deemed never to have become the Reporting Accountants and new Reporting Accountants shall be selected finally solved by arbitration in accordance with Clause 16 of the provisions of this Agreement.
3.7 Except to the extent that the Seller and the Buyer agree otherwise, and save as provided by the remaining provision of this paragraph 3, the Reporting Accountants shall determine their own procedure but apart from procedural matters and as otherwise set out in this Agreement shall determine only:
(a) whether any of the arguments for an alteration to the Draft Completion Statement put forward in the Seller’s Disagreement Notice, and which remain in dispute, is correct in whole or in part; and
(b) if so, what alterations should be made to the Draft Completion Statement in order to correct the relevant inaccuracy in it;
3.8 The Reporting Accountants shall apply the accounting principles, policies, procedures, practices and techniques set out in paragraph 2 of Part 1 of schedule 11 and shall make their determination as soon as is reasonably practicable;
3.9 The procedure of the Reporting Accountants shall:
(a) give the Seller and the Buyer a reasonable opportunity to make written representations to them; and
(b) require that the Seller and the Buyer supply the other with a copy of any written representations at the same time as they are made to the Reporting Accountants;
3.10 In making their determination the Reporting Accountants shall act as experts and not as arbitrators and their determination of any matter falling within their jurisdiction shall be final and binding on the Seller and the Buyer save in the event of manifest error (when the relevant part of their determination shall be void and the matter shall be remitted to the Reporting Accountants for correction) or fraud.
3.11 The expenses (including VAT) of the Reporting Accountants shall be borne as they shall direct or, failing such direction, equally between the Buyer and the Seller.
3.12 Within 5 Business Days of any written determination by the Reporting Accountants pursuant to this schedule, the Seller and the Buyer shall jointly incorporate in the Draft Completion Statement the matters determined by the Reporting Accountants, together with any adjustments which may have been agreed separately in writing between the Seller and the Buyer, and the Draft Completion Statement as so adjusted shall be the and the Draft Completion Statement so adjusted shall be the Completion Statement and shall be final and binding on the parties for all purposes.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Preem Holdings Ab Publ)
Preparation. 3.1 As soon as practicable, and in any event no No later than the date falling 60 days from Completion (excluding the day of Completion)following Closing, the Buyer Purchaser shall deliver to the Seller a draft of the Completion Statement (Draft Completion Closing Statement). Prior to such delivery, the Buyer shall so far as is practicable consult with the Seller with a view to reducing the potential areas of disagreement.
3.2 In order to enable the Seller Purchaser to review prepare and agree the Draft Completion Closing Statement, the Buyer Seller and the other Relevant Sellers shall keep up to date and, subject to reasonable notice, make available to the Seller, its officers employees Purchaser’s representatives and advisers, upon reasonable prior notice to the Purchaser’s accountants all books and records relating to the Group during normal office hourshours and co-operate with them with regard to the preparation of the Draft Closing Statement. Each of the Seller and the other Relevant Sellers agrees, in so far as it is reasonable to do so, to make available the services of the employees of the Seller’s Group to assist the Purchaser in the performance of its duties under this Agreement.
3.3 If the Seller does not within 30 days from delivery of presentation to it of the Draft Completion Closing Statement (excluding the date of delivery) (Review Period) give notice to the Buyer Purchaser that it disagrees with the Draft Completion StatementClosing Statement or any item thereof, such notice stating the reasons for the disagreement in reasonable detail and specifying the adjustments which, in the Seller’s opinion should be made to the Draft Completion Closing Statement (the “Seller’s Disagreement Notice”), the Draft Completion Closing Statement shall be the Completion Statement and shall be final and binding on the parties for all purposes.
3.4 . If the Seller delivers gives a valid Seller’s Disagreement Notice within the Review Periodsuch 30 days, the Seller Purchaser and the Buyer other Relevant Purchasers shall keep up to date and, subject to reasonable notice, make available to the Seller’s representatives and the Seller’s accountants all books and records relating to the relevant part of the Group during normal office hours during the period from the date of the Seller’s Disagreement Notice until the date on which such disagreement is resolved. The Purchaser and the Seller shall attempt in good faith to reach agreement in respect of the Draft Completion Closing Statement and:
(a) if the Buyer and the Seller agree, in writing, on all adjustments to be made to the Draft Completion Statement within 21 days from delivery of the Seller’s Disagreement Notice (excluding the date of delivery), then, the agreed adjustments shall be incorporated into the Draft Completion Statement and the Draft Completion Statement so adjusted shall be the Completion Statement and shall be final and binding on the parties for all purposes.
(b) if they are unable to do so within 21 days from delivery of the Seller’s Disagreement Notice (excluding the date of delivery)such notification, the Seller or the Buyer shall refer those matters which are in dispute in Purchaser may by notice to the other require that the Draft Completion Closing Statement be referred to the Reporting Accountants.
3.5 If, as provided in paragraph 3.4(b), the Buyer and the Seller are unable to agree the Completion Statement then any matters in dispute may be referred by either party for determination, on the basis set out in paragraphs 3.6 to 3.11 (inclusive ) below to:
(a) the firm of independent chartered accountants agreed between the Seller and the Buyer within 15 Business Days of a request by either of them to the other, or, failing such agreement within such time,
(b) the firm of independent chartered accountants nominated by the President for the time being of the Institute of Chartered Accountants in England and Wales (or by such person as the President specifies for the purpose of making such nomination) on the written application of either the Seller or the Buyer.
(c) If any firm of independent chartered accountants selected or nominated pursuant to paragraphs 3.5(a)or 3.5(b) refuses to accept the appointment, the procedure set out in this paragraph 3.5 shall be repeated. (the firm of independent chartered accountants appointed pursuant to this paragraph 3.5 shall be the Reporting Accountants)
3.6 3.4 The Reporting Accountants shall be engaged jointly by the Seller and the Buyer Purchaser on the terms set out in this paragraph 3 and otherwise on such terms as shall be agreed; provided that neither the Seller nor the Buyer Purchaser shall unreasonably (having regard, inter alia, to the provisions of this paragraph 3) refuse its agreement to terms proposed by the Reporting Accountants or by the other party. If the terms of engagement of the Reporting Accountants have not been settled within 45 days of their identity having been determined (or such longer period as the Seller and the Purchaser may agree) then, unless the Seller or the Buyer Purchaser is unreasonably refusing its agreement to those terms, those accountants shall be deemed never to have become the Reporting Accountants and new Reporting Accountants shall be selected in accordance with the provisions of this Agreement.
3.7 3.5 Except to the extent that the Seller and the Buyer Purchaser agree otherwise, and save as provided by the remaining provision of this paragraph 3, the Reporting Accountants shall determine their own procedure but but:
3.5.1 apart from procedural matters and as otherwise set out in this Agreement shall determine only:
(ai) whether any of the arguments for an alteration to the Draft Completion Closing Statement put forward in the Seller’s Disagreement Notice, and which remain in dispute, Notice is correct in whole or in part; and
(bii) if so, what alterations should be made to the Draft Completion Closing Statement in order to correct the relevant inaccuracy in it;
3.8 The Reporting Accountants 3.5.2 shall apply the accounting principles, policies, procedures, practices and estimation techniques set out in paragraph 2 paragraphs 2.2 to 2.9 of Part 1 of schedule 11 and this Schedule 11;
3.5.3 shall make their determination pursuant to paragraph 3.5.1 of Part 1 of this Schedule 11 as soon as is reasonably practicable;practicable but in any event within 30 days of being engaged; and
3.9 The 3.5.4 the procedure of the Reporting Accountants shall:
(ai) give the Seller and the Buyer Purchaser a reasonable opportunity to make written representations to them; and;
(bii) require that the Seller and the Buyer each party supply the other with a copy of any written representations at the same time as they are made to the Reporting Accountants;; and
3.10 In making (iii) for the avoidance of doubt, the Reporting Accountants shall not be entitled to determine the scope of their own jurisdiction.
3.6 The Reporting Accountants shall promptly upon the same becoming available send the Seller and the Purchaser a copy of their determination pursuant to paragraph 3.5.1 above. Such determination shall:
3.6.1 be made in writing; and
3.6.2 unless otherwise agreed by the Seller and the Purchaser, include reasons for each relevant determination.
3.7 The Reporting Accountants shall act as experts and not as arbitrators and their determination of any matter falling within their jurisdiction shall be final and binding on the Seller Relevant Sellers and the Buyer Relevant Purchasers save in the event of manifest error (when the relevant part of their determination shall be void and the matter shall be remitted to the Reporting Accountants for correction) or fraud). In particular, their determination shall be deemed to be incorporated into the Draft Closing Statement.
3.11 3.8 The expenses (including VAT) of the Reporting Accountants shall be borne as they shall direct at the time they make any determination under paragraph 3.5.1 or, failing such direction, equally between the Buyer Purchaser, on the one hand, and the Seller, on the other.
3.12 Within 5 Business Days of any written determination by 3.9 The Seller and the Purchaser shall co-operate with the Reporting Accountants and comply with their reasonable requests made in connection with the carrying out of their duties under this Agreement. In particular, the Purchaser and the other Relevant Purchasers shall keep up to date and, subject to reasonable notice, make available to the Seller’s representatives, the Seller’s accountants and the Reporting Accountants all books and records relating to the Group during normal office hours during the period from the appointment of the Reporting Accountants down to the making of the relevant determination.
3.10 Nothing in this Schedule 11 shall entitle a party or the Reporting Accountants to access any information or document which is protected by legal professional privilege or which has been prepared by the other party or its accountants or other professional advisers with a view to assessing the merits of any claim or argument.
3.11 Each party and the Reporting Accountants shall, and shall procure that its accountants and other advisers shall, keep all information and documents provided to them pursuant to this scheduleparagraph 3 confidential and shall not use the same for any purpose, except for disclosure or use in connection with the preparation of the Draft Closing Statement, the Seller and the Buyer shall jointly incorporate in the Draft Completion Statement the matters determined by proceedings of the Reporting Accountants, together with Accountants or any adjustments which may have been agreed separately other matter arising out of this Agreement or in writing between the Seller and the Buyer, and the Draft Completion Statement as so adjusted shall be the and the Draft Completion Statement so adjusted shall be the Completion Statement and shall be final and binding on the parties for all purposesdefending any claim or argument or alleged claim or argument relating to this Agreement or its subject matter.
Appears in 1 contract
Samples: Share and Business Sale Agreement (Scotts Miracle-Gro Co)
Preparation. 3.1 As soon as practicable, and in any event no No later than 90 days following Closing or such other date as may be agreed between the date falling 60 days from Completion (excluding the day of Completion)Purchaser and RBS, the Buyer RBS shall deliver to the Seller a draft of Purchaser the Completion Draft Closing Statement (Draft Completion Statement). Prior to such delivery, the Buyer shall so far as is practicable consult with the Seller with a view to reducing the potential areas of disagreementplus supporting schedules.
3.2 In order to enable the Seller RBS to review prepare and agree the Draft Completion Closing Statement, the Buyer Purchaser shall keep up-to-date and, subject to reasonable notice, make available to the Seller, its officers employees RBS’s representatives and advisers, upon reasonable prior notice to RBS’s accountants all books and records relating to the Group during normal office hourshours and co-operate with them with regard to the preparation and agreement of the Draft Closing Statement. The Purchaser agrees, insofar as it is reasonable to do so, to make available the services of the employees of the Group to assist RBS in the performance of its duties under this Agreement.
3.3 If the Seller Purchaser does not within 30 45 days from delivery of presentation to it of the Draft Completion Closing Statement (excluding the date of delivery) (Review Period) give notice to the Buyer RBS that it disagrees with the Draft Completion StatementClosing Statement or any item thereof, such notice stating the reasons for the disagreement in reasonable detail and specifying the adjustments which, in the SellerPurchaser’s opinion opinion, should be made to the Draft Completion Closing Statement (the Seller“Purchaser’s Disagreement Notice”), the Draft Completion Closing Statement shall be the Completion Statement and shall be final and binding on the parties for all purposes.
3.4 . If the Seller delivers Purchaser gives a valid SellerPurchaser’s Disagreement Notice within the Review Periodsuch 45 days, the Seller Purchaser shall keep up-to-date and, subject to reasonable notice, make available to RBS’s representatives and RBS’s accountants all books and records relating to the relevant part of the Group during normal office hours during the period from the date of the Purchaser’s Disagreement Notice until the date on which such disagreement is resolved. RBS shall keep up-to-date and, subject to reasonable notice, make available to the Purchaser’s representatives and the Buyer Purchaser’s accountants all books and records in their possession relating to the relevant part of the Group during normal office hours during the period from the date of the delivery of the Draft Closing Statement until the date on which such disagreement is resolved. RBS and the Purchaser shall attempt in good faith to reach agreement in respect of the Draft Completion Closing Statement and:
(a) if the Buyer and the Seller agree, in writing, on all adjustments to be made to the Draft Completion Statement within 21 days from delivery of the Seller’s Disagreement Notice (excluding the date of delivery), then, the agreed adjustments shall be incorporated into the Draft Completion Statement and the Draft Completion Statement so adjusted shall be the Completion Statement and shall be final and binding on the parties for all purposes.
(b) if they are unable to do so within 21 days from delivery of the Seller’s Disagreement Notice (excluding the date of delivery)such notification, the Seller RBS or the Buyer shall refer those matters which are in dispute in the Draft Completion Statement to the Reporting Accountants.
3.5 IfPurchaser may, as provided in paragraph 3.4(b), the Buyer and the Seller are unable to agree the Completion Statement then any matters in dispute may be referred by either party for determination, on the basis set out in paragraphs 3.6 to 3.11 (inclusive ) below to:
(a) the firm of independent chartered accountants agreed between the Seller and the Buyer within 15 Business Days of a request by either of them notice to the other, or, failing such agreement within such time,
require that the Draft Closing Statement be referred to the Reporting Accountants (b) the firm of independent chartered accountants nominated by the President for the time being of the Institute of Chartered Accountants in England and Wales (or by such person as the President specifies for the purpose of making such nomination) on the written application of either the Seller or the Buyeran “Appointment Notice”).
(c) If any firm of independent chartered accountants selected or nominated pursuant to paragraphs 3.5(a)or 3.5(b) refuses to accept the appointment, the procedure set out in this paragraph 3.5 shall be repeated. (the firm of independent chartered accountants appointed pursuant to this paragraph 3.5 shall be the Reporting Accountants)
3.6 3.4 The Reporting Accountants shall be engaged jointly by the Seller RBS and the Buyer Purchaser on the terms set out in this paragraph 3 of Schedule 11 and otherwise on such terms as shall be agreed; provided that neither the Seller RBS nor the Buyer Purchaser shall unreasonably (having regard, inter alia, to the provisions of this paragraph 33 of Schedule 11) refuse its agreement to terms proposed by the Reporting Accountants or by the other party. If the terms of engagement of the Reporting Accountants have not been settled within 45 30 days of their identity having been determined (or such longer period as the Seller RBSG and the Purchaser may agree) ), then, unless the Seller RBS or the Buyer Purchaser is unreasonably refusing its agreement to those terms, those accountants shall be deemed never to have become the Reporting Accountants and new Reporting Accountants shall be selected in accordance with the provisions of this Agreement.
3.7 3.5 Except to the extent that the Seller RBS and the Buyer Purchaser agree otherwise, and save as provided by the remaining provision of this paragraph 3, the Reporting Accountants shall determine their own procedure but but:
3.5.1 apart from procedural matters and as otherwise set out in this Agreement shall determine only:
(ai) whether any of the arguments for an alteration to the Draft Completion Closing Statement put forward in the SellerPurchaser’s Disagreement Notice, and which remain in dispute, Notice not yet agreed by the other party is correct in whole or in part; and
(bii) if so, what alterations should be made to the Draft Completion Closing Statement in order to correct the relevant inaccuracy in it;
3.8 The Reporting Accountants 3.5.2 shall apply the accounting principles, policies, procedures, practices and techniques set out in paragraph 2 of this Part 1 of schedule 11 and Schedule 11;
3.5.3 shall make their determination pursuant to paragraph 3.5.1 of this Part 1 of Schedule 11 as soon as is reasonably practicablepracticable and in any event within 60 days of appointment;
3.9 The 3.5.4 the procedure of the Reporting Accountants shall:
(ai) give the Seller RBS and the Buyer Purchaser a reasonable opportunity to make written representations to them; and;
(bii) require that the Seller and the Buyer each party supply the other with a copy of any written representations at the same time as they are made to the Reporting Accountants;; and
3.10 In making (iii) for the avoidance of doubt, the Reporting Accountants shall not be entitled to determine the scope of their own jurisdiction.
3.6 The Reporting Accountants shall send the Transferor and the Purchaser a copy of their determination pursuant to paragraph 3.5.1 of this Part 1 of Schedule 11 within 60 days of their appointment. Such determination shall:
3.6.1 be made in writing; and
3.6.2 unless otherwise agreed by RBS and the Purchaser, include reasons for each relevant determination.
3.7 The Reporting Accountants shall act as experts and not as arbitrators and their determination of any matter falling within their jurisdiction shall be final and binding on the Seller Transferors and the Buyer Purchaser save in the event of manifest error (when the relevant part of their determination shall be void and the matter shall be remitted to the Reporting Accountants for correction) or fraud). In particular, their determination shall be deemed to be incorporated into the Draft Closing Statement.
3.11 3.8 The expenses (including VAT) of the Reporting Accountants shall be borne as they shall direct at the time they make any determination under paragraph 3.5.1 (i) of this Part 1 of Schedule 11 or, failing such direction, equally between the Buyer Purchaser, on the one hand, and RBS, on the other.
3.9 RBS and the SellerPurchaser shall co-operate with the Reporting Accountants and comply with their reasonable requests made in connection with the carrying out of their duties under this Agreement. In particular, the Purchaser shall keep up-to-date and, subject to reasonable notice, make available to RBS’s representatives, RBS’s accountants and the Reporting Accountants all books and records relating to the Group during normal office hours during the period from the appointment of the Reporting Accountants down to the making of the relevant determination.
3.10 Subject to paragraph 3.11 of this Part 1 of Schedule 11, nothing in this paragraph 3 shall entitle a party or the Reporting Accountants access to any information or document which is protected by legal professional privilege or which has been prepared by the other party or its accountants or other professional advisers with a view to assessing the merits of any claim or argument.
3.11 A party shall not be entitled by reason of paragraph 3.10 of this Part 1 of Schedule 11 to refuse to supply such part or parts of documents as contain only the facts on which the relevant claim or argument is based.
3.12 Within 5 Business Days of any written determination by Each party and the Reporting Accountants shall, and shall procure that its accountants and other advisers shall, keep all information and documents provided to them pursuant to this scheduleparagraph 3 of this Part 1 of Schedule 11 confidential and shall not use the same for any purpose, except for disclosure or use in connection with the preparation of the Draft Closing Statement, the Seller and the Buyer shall jointly incorporate in the Draft Completion Statement the matters determined by proceedings of the Reporting Accountants, together with Accountants or another matter arising out of this Agreement or in defending any adjustments which may have been agreed separately in writing between the Seller and the Buyer, and the Draft Completion Statement as so adjusted shall be the and the Draft Completion Statement so adjusted shall be the Completion Statement and shall be final and binding on the parties for all purposesclaim or argument or alleged claim or argument relating to this Agreement or its subject matter.
Appears in 1 contract
Samples: Transfer Agreement (Royal Bank of Scotland Group PLC)
Preparation. 3.1 As soon as practicable, and in any event no No later than the date falling 60 45 days from Completion (excluding the day of Completion)following Closing, the Buyer Purchaser shall deliver to the Principal Seller a draft of the Completion Statement (Draft Completion Cash, Debt and Working Capital Statement). Prior to such delivery, the Buyer Purchaser shall so far as is practicable consult with the Principal Seller with a view to reducing the potential areas of disagreement.
3.2 In order Each of the Principal Seller and the Purchaser shall co-operate with the other with regard to enable the Seller to review preparation, review, agreement or determination of the Draft Completion StatementCash, the Buyer shall Debt and Working Capital Statement and shall, subject to reasonable notice, make available during normal office hours to the Seller, other and its officers employees representatives and advisers, upon reasonable prior notice accountants all books and records relating to as the Group during normal office hoursother party may reasonably require.
3.3 If the Principal Seller does not within 30 days from delivery of presentation to it of the Draft Completion Cash, Debt and Working Capital Statement (excluding the date of delivery) (Review Period) give notice to the Buyer Purchaser that it disagrees with the Draft Completion StatementCash, Debt and Working Capital Statement or any item thereof, such notice stating the reasons for the disagreement in reasonable detail and specifying the adjustments which, in the Principal Seller’s opinion should be made to the Draft Completion Cash, Debt and Working Capital Statement (the “Seller’s Disagreement Notice”), the Draft Completion Cash, Debt and Working Capital Statement shall be the Completion Statement and shall be final and binding on the parties for all purposes.
3.4 . If the Principal Seller delivers gives a valid Seller’s Disagreement Notice within the Review Periodsuch 30 days, the Seller Purchaser and the Buyer Principal Seller shall attempt in good faith to reach agreement in respect of the Draft Completion Cash, Debt and Working Capital Statement and:
(a) if the Buyer and the Seller agree, in writing, on all adjustments to be made to the Draft Completion Statement within 21 days from delivery of the Seller’s Disagreement Notice (excluding the date of delivery), then, the agreed adjustments shall be incorporated into the Draft Completion Statement and the Draft Completion Statement so adjusted shall be the Completion Statement and shall be final and binding on the parties for all purposes.
(b) if they are unable to do so within 21 days from delivery of such notification, the Seller’s Disagreement Notice Purchaser or the Principal Seller may by notice (excluding an “Appointment Notice”) to the other require that the Draft Cash, Debt and Working Capital Statement be referred to an independent firm of accountants of international repute agreed by the Purchaser and the Principal Seller or, failing agreement within 14 days of the date of delivery)giving an Appointment Notice, the Seller or the Buyer shall refer those matters which are in dispute in the Draft Completion Statement to the Reporting Accountants.
3.5 If, as provided in paragraph 3.4(b), the Buyer and the Seller are unable to agree the Completion Statement then any matters in dispute may be referred by either party for determination, on the basis set out in paragraphs 3.6 to 3.11 (inclusive ) below to:
(a) the firm of independent chartered accountants agreed between the Seller and the Buyer within 15 Business Days of a request by either of them to the other, or, failing such agreement within such time,
(b) the firm of independent chartered accountants nominated appointed by the President for the time being of the Institute of Chartered Accountants in England and Wales (or by such person as the President specifies for the purpose of making such nomination) on the written application of either the Seller or the Buyer“Reporting Accountants”).
(c) If any firm 3.4 Within 21 days of independent chartered accountants selected or nominated pursuant to paragraphs 3.5(a)or 3.5(b) refuses to accept the appointmentgiving of an Appointment Notice, the procedure set out Purchaser may by notice to the Principal Seller indicate that, in this paragraph 3.5 shall the light of the fact that the Principal Seller has not Back to Contents accepted the Draft Cash, Debt and Working Capital Statement in its entirety, it wishes the Reporting Accountants to consider matters relating to the Draft Cash, Debt and Working Capital Statement which are consequential to those specified in the Seller’s Disagreement Notice, such notice stating in reasonable detail the reasons why and in what respects the Purchaser believes that the Draft Cash, Debt and Working Capital Statement should be repeated. altered (the firm of independent chartered accountants appointed pursuant to this paragraph “Purchaser’s Disagreement Notice”).
3.5 shall be the Reporting Accountants)
3.6 The Reporting Accountants shall be engaged jointly by the Principal Seller and the Buyer Purchaser on the terms set out in this paragraph 3 and otherwise on such terms as shall be agreed; provided that neither the Principal Seller nor the Buyer Purchaser shall unreasonably (having regard, inter alia, to the provisions of this paragraph 3) refuse its agreement to terms proposed by the Reporting Accountants or by the other party. If the terms of engagement of the Reporting Accountants have not been settled within 45 30 days of their identity having been determined (or such longer period as the Principal Seller and the Purchaser may agree) then, unless the Principal Seller or the Buyer Purchaser is unreasonably refusing its agreement to those terms, those accountants shall be deemed never to have become the Reporting Accountants and new Reporting Accountants shall be selected in accordance with the provisions of this Agreement.
3.7 3.6 Except to the extent that the Principal Seller and the Buyer Purchaser agree otherwise, and save as provided by the remaining provision of this paragraph 3, the Reporting Accountants shall determine their own procedure but procedures but:
3.6.1 apart from procedural matters and as otherwise set out in this Agreement shall determine only:
(ai) whether any of the arguments for an alteration to the Draft Completion Cash, Debt and Working Capital Statement put forward in the Seller’s Disagreement Notice, and which remain in dispute, Notice or the Purchaser’s Disagreement Notice is correct in whole or in part; and
(bii) if so, what alterations should be made to the Draft Completion Cash, Debt and Working Capital Statement in order to correct the relevant inaccuracy in it;
3.8 The Reporting Accountants 3.6.2 shall apply the accounting principles, policies, procedures, practices and techniques principles set out in paragraph 2 of Part 1 of schedule 11 and this Schedule 3;
3.6.3 shall make their determination pursuant to paragraph 3.5 above as soon as is reasonably practicable;
3.9 The procedure 3.6.4 the procedures of the Reporting Accountants shall:
(ai) give the Principal Seller and the Buyer Purchaser a reasonable opportunity to make written and oral representations to them; and;
(bii) require that each of the Principal Seller and the Buyer Purchaser supply the other with a copy of any written representations at the same time as they are made to the Reporting Accountants;
3.10 In making (iii) permit each party to be present while oral submissions are being made by the other party; and
(iv) for the avoidance of doubt, the Reporting Accountants shall not be entitled to determine the scope of their own jurisdiction.
3.7 The determination of the Reporting Accountants pursuant to paragraph 3.5 shall:
3.7.1 be made in writing and delivered to each of the Principal Seller and the Purchaser; and Back to Contents
3.7.2 unless otherwise agreed by the Principal Seller and the Purchaser include reasons for each relevant determination.
3.8 The Reporting Accountants shall act as experts and not as arbitrators and their determination of any matter falling within their jurisdiction shall be final and binding on the Seller Sellers and the Buyer Purchaser save in the event of manifest error (when the relevant part of their determination shall be void and the matter shall be remitted to the Reporting Accountants for correction) or fraud). In particular, without limitation, their determination shall be deemed to be incorporated into the Draft Cash, Debt and Working Capital Statement.
3.11 3.9 The expenses (including VAT) of the Reporting Accountants shall be borne as they shall direct at the time they make any determination under paragraph 3.5 or, failing such direction, equally between the Buyer Purchaser, on the one hand, and the Principal Seller, on the other.
3.10 The Principal Seller and Purchaser shall co-operate with the Reporting Accountants and comply with their reasonable requests made in connection with the carrying out of their duties under this Agreement. In particular, without limitation, the Purchaser and, to the extent relevant, the Principal Seller shall keep up-to-date and, subject to reasonable notice, make available during normal office hours to the Reporting Accountants all books and records relating to the Group as the Reporting Accountants may reasonably request during the period from the appointment of the Reporting Accountants down to the making of the relevant determination.
3.11 Subject to paragraph 3.12, nothing in this paragraph 3 shall entitle a party or the Reporting Accountants access to any information or document which is protected by legal professional privilege or litigation privilege, or which has been prepared by the other party or its accountants and other professional advisers with a view to assessing the merits of any claim or argument.
3.12 Within 5 Business Days Neither the Principal Seller nor the Purchaser shall be entitled by reason of any written determination by paragraph 3.11 to refuse to supply such part or parts of documents as contain only the facts on which the relevant claim or argument is based.
3.13 Each of the Principal Seller and the Purchaser and the Reporting Accountants shall, and shall procure that its accountants and other advisers shall, keep all information and documents provided to them pursuant to this scheduleparagraph 3 confidential and shall not use the same for any purpose, except for disclosure or use in connection with the preparation of the Draft Cash, Debt and Working Capital Statement, the Seller and the Buyer shall jointly incorporate in the Draft Completion Statement the matters determined by proceedings of the Reporting Accountants, together with Accountants or another matter arising out of this Agreement or in defending any adjustments which may have been agreed separately in writing between the Seller and the Buyer, and the Draft Completion Statement as so adjusted shall be the and the Draft Completion Statement so adjusted shall be the Completion Statement and shall be final and binding on the parties for all purposes.claim or argument or alleged claim or argument relating to this Agreement or its subject matter. Back to Contents
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Preparation. 3.1 As soon promptly as practicable, reasonably practicable (and in any event no within thirty (30) days or such later than date as the Parties mutually agree in good faith, such agreement not to be unreasonably withheld, conditioned or delayed) after the date falling 60 days from Completion of this Agreement, Seller will prepare and file with the SEC a preliminary proxy statement to be sent to the Seller Stockholders in connection with the Seller Stockholder Meeting (excluding the day of Completionproxy statement, including any amendments or supplements thereto, the “Proxy Statement”). Other than to the extent mutually agreed by Purchaser and Seller (such agreement not to be unreasonably withheld, conditioned or delayed), the Buyer Proxy Statement will not solicit the vote or approval of the Seller Stockholders on any matter except for (i) the approval of the Stock Purchase and the other transactions contemplated by this Agreement and this Agreement, (ii) the approval of the Excluded Transactions that require approval of the Seller Stockholders under applicable Law, and (iii) the approval of any proposal to adjourn or postpone the Seller Stockholder Meeting to a later date if there are not sufficient votes to approve the Stock Purchase and the other transactions contemplated by this Agreement or approve this Agreement. Except in connection with any amendment to the Proxy Statement describing a Seller Board Recommendation Change, Purchaser and its legal counsel shall deliver be given reasonable opportunity to review and comment on the Proxy Statement (including all amendments and supplements thereto and including any response to any comments (including oral comments) of the SEC or its staff with respect thereto) prior to the filing thereof with the SEC and Seller shall give reasonable consideration to any such comments made by Purchaser or its counsel. Seller shall promptly provide Purchaser and its legal counsel with a copy or a description of any comments (including oral comments) received by Seller or its legal counsel from the SEC or its staff with respect to the Proxy Statement. Subject to Section 5.3, Seller will use its reasonable best efforts to (i) include the Seller Board Recommendation and the fairness opinion of the Seller Financial Advisor referred to in Section 3.3(b) in the Proxy Statement; and (ii) use appropriate efforts to solicit proxies to obtain the Requisite Stockholder Approval. Promptly following the later of (A) confirmation by the SEC that it has no further comments and (B) expiration of the ten (10)-day waiting period contemplated by Rule 14a-6(a) promulgated under the Exchange Act, Seller will cause the Proxy Statement in definitive form to be mailed or otherwise disseminated to the Seller a draft Stockholders. Seller shall promptly respond to any comments (including oral comments) of the Completion Statement (Draft Completion Statement). Prior to such delivery, the Buyer shall so far as is practicable consult SEC or its staff with the Seller with a view to reducing the potential areas of disagreement.
3.2 In order to enable the Seller to review the Draft Completion Statement, the Buyer shall make available respect to the Seller, its officers employees Proxy Statement and advisers, upon reasonable prior notice all books and records relating to the Group during normal office hours.
3.3 If extent required by the Seller does not within 30 days from delivery to it applicable requirements of United States securities laws and the rules and regulations of the Draft Completion Statement (excluding the date SEC promulgated thereunder, and each of delivery) (Review Period) give notice to the Buyer that Purchaser and Seller shall promptly correct any information provided by it disagrees with the Draft Completion Statement, such notice stating the reasons for the disagreement in reasonable detail and specifying the adjustments which, use in the Seller’s opinion should be made to the Draft Completion Proxy Statement (the Seller’s Disagreement Notice), the Draft Completion Statement shall be the Completion Statement and shall be final and binding on the parties for all purposes.
3.4 If the Seller delivers a valid Seller’s Disagreement Notice within the Review Period, the Seller and the Buyer shall attempt in good faith to reach agreement in respect of the Draft Completion Statement and:
(a) if the Buyer and the Seller agree, in writing, on all adjustments to be made to the Draft Completion Statement within 21 days from delivery of the Seller’s Disagreement Notice (excluding the date of delivery), then, the agreed adjustments shall be incorporated into the Draft Completion Statement and the Draft Completion Statement so adjusted shall be the Completion Statement and shall be final and binding on the parties for all purposes.
(b) if they are unable to do so within 21 days from delivery of the Seller’s Disagreement Notice (excluding the date of delivery), the Seller or the Buyer shall refer those matters which are in dispute in the Draft Completion Statement to the Reporting Accountants.
3.5 If, as provided in paragraph 3.4(b), the Buyer and the Seller are unable to agree the Completion Statement then any matters in dispute may be referred by either party for determination, on the basis set out in paragraphs 3.6 to 3.11 (inclusive ) below to:
(a) the firm of independent chartered accountants agreed between the Seller and the Buyer within 15 Business Days of a request by either of them to the other, or, failing such agreement within such time,
(b) the firm of independent chartered accountants nominated by the President for the time being of the Institute of Chartered Accountants in England and Wales (or by such person as the President specifies for the purpose of making such nomination) on the written application of either the Seller or the Buyer.
(c) If any firm of independent chartered accountants selected or nominated pursuant to paragraphs 3.5(a)or 3.5(b) refuses to accept the appointment, the procedure set out in this paragraph 3.5 shall be repeated. (the firm of independent chartered accountants appointed pursuant to this paragraph 3.5 shall be the Reporting Accountants)
3.6 The Reporting Accountants shall be engaged jointly by the Seller and the Buyer on the terms set out in this paragraph 3 and otherwise on such terms as shall be agreed; provided that neither the Seller nor the Buyer shall unreasonably (having regard, inter alia, to the provisions of this paragraph 3) refuse its agreement to terms proposed by the Reporting Accountants or by the other party. If the terms of engagement of the Reporting Accountants have not been settled within 45 days of their identity having been determined (or such longer period as the Seller and the Purchaser may agree) then, unless the Seller or the Buyer is unreasonably refusing its agreement to those terms, those accountants shall be deemed never to have become the Reporting Accountants and new Reporting Accountants shall be selected in accordance with the provisions of this Agreement.
3.7 Except to the extent that such information shall be or shall have become false or misleading in any material respect and Seller shall take all steps necessary to cause the Proxy Statement, as supplemented or amended to correct such information, to be filed with the SEC and, to the extent required by the United States securities laws and the rules and regulations of the SEC promulgated thereunder, to be disseminated to the Seller and the Buyer agree otherwise, and save as provided by the remaining provision of this paragraph 3, the Reporting Accountants shall determine their own procedure but apart from procedural matters and as otherwise set out in this Agreement shall determine only:
(a) whether any of the arguments for an alteration to the Draft Completion Statement put forward in the Seller’s Disagreement Notice, and which remain in dispute, is correct in whole or in part; and
(b) if so, what alterations should be made to the Draft Completion Statement in order to correct the relevant inaccuracy in it;
3.8 The Reporting Accountants shall apply the accounting principles, policies, procedures, practices and techniques set out in paragraph 2 of Part 1 of schedule 11 and shall make their determination as soon as is reasonably practicable;
3.9 The procedure of the Reporting Accountants shall:
(a) give the Seller and the Buyer a reasonable opportunity to make written representations to them; and
(b) require that the Seller and the Buyer supply the other with a copy of any written representations at the same time as they are made to the Reporting Accountants;
3.10 In making their determination the Reporting Accountants shall act as experts and not as arbitrators and their determination of any matter falling within their jurisdiction shall be final and binding on the Seller and the Buyer save in the event of manifest error (when the relevant part of their determination shall be void and the matter shall be remitted to the Reporting Accountants for correction) or fraudStockholders.
3.11 The expenses (including VAT) of the Reporting Accountants shall be borne as they shall direct or, failing such direction, equally between the Buyer and the Seller.
3.12 Within 5 Business Days of any written determination by the Reporting Accountants pursuant to this schedule, the Seller and the Buyer shall jointly incorporate in the Draft Completion Statement the matters determined by the Reporting Accountants, together with any adjustments which may have been agreed separately in writing between the Seller and the Buyer, and the Draft Completion Statement as so adjusted shall be the and the Draft Completion Statement so adjusted shall be the Completion Statement and shall be final and binding on the parties for all purposes.
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