Adjustment Amount Calculation. (A) No later than ninety (90) days after the Completion Date, the Purchaser shall deliver to the Seller a statement reflecting the following (the "Draft Completion Calculation"), each other than the Seller Transaction Expenses determined as of the close of business on the Completion Date, but without giving effect to the consummation of the transactions contemplated by this Agreement or any financing transactions in connection therewith: (1) the Completion Balance Sheet; (2) the Adjusted Cash; (3) the BDDG Bank Debt; (4) the BDDG Debt Service Reserve Balance; (5) the BDDG Net Bank Debt; (6) the Consolidated Indebtedness; (7) the Completion Working Capital; (8) the Seller Transaction Expenses; (9) the Adjustment Amount; and (10) the Pro-Rata Adjustment Amount (B) Immediately following delivery of the Draft Completion Calculation, the Purchaser shall, and shall cause the Company and BDDG to, provide to the Seller reasonable access, during regular business hours, to all information, documentation reasonably requested by the Seller or its financial advisors in respect of the Draft Completion Calculation, including but not limited to access to any financial books and records related to the Company and BDDG in accordance with customary protocols regarding such access. (C) The Seller may object to the Draft Completion Calculation by written notice to the Purchaser within thirty (30) days following receipt thereof, which notice shall specify in reasonable detail those items or amounts as to which the Seller objects (the "Seller Objection Notice") and the Parties shall be deemed to have agreed upon all other items and amounts contained in such Draft Completion Calculation which are not impacted by items or amounts objected to in the Objection Notice. The Objection Notice shall set forth the Seller’s proposed adjustment to each disputed amount or calculation and the rationale for such disputes. If no Purchaser Objection Notice has been delivered or no Seller Objection Notice is made within the period, then the Draft Completion Calculation shall be conclusive, final and binding the Parties and shall constitute the "Final Completion Calculation" and the amount resulting will be the "Final Completion Amount". (D) If a Purchaser Objection Notice has been delivered and/or a Seller Objection Notice is delivered by the Seller, the Parties shall in good faith attempt to resolve any matters in dispute as promptly as practicable. If the Parties are unable to resolve all such items in dispute within thirty (30) days after the receipt of the Draft Completion Amount, then either Party may submit those items or calculations in dispute for resolution to any of the "Big Four" firms which is not conflicted with any of the Parties (either being the "Independent Firm"). The Independent Firm will limit its review only to the specific items or calculations in dispute and pursuant to the rules and parameters set out in this Agreement, including Schedule 2. If the Parties submit any such dispute to the Independent Firm, each such party may submit a “position paper” to the Independent Firm and the other party setting forth the position of such submitting party with respect to such dispute, to be considered by such Independent Firm as it deems fit; provided that, the Independent Firm shall base its determinations solely on information provided by the Parties and the provisions of this Agreement and not by independent review or development of each disputed item. In addition, in resolving any disputed item, the Independent Firm may not assign a value to any item greater than the greatest value for such item claimed by either party or less than the least value for such item claimed by either party. In the case of a dispute and the hiring of an Independent Firm in accordance with this Clause, the fees and expenses of the Independent Firm shall be shared equally by the Parties. The Parties shall instruct the Independent Firm to submit its determination or opinion in a written statement delivered to the Parties as promptly as practicable, but in no event later than thirty (30) days after the appointment of such Independent Firm, and such determination or opinion, together with those items accepted by the Purchaser and the Seller in respect of the Draft Completion Calculation or otherwise resolved between the Parties in accordance with the first sentence of this paragraph shall be conclusive, final and binding on the Parties without possibility of amendment or appeal and shall constitute the "Final Completion Calculation" and the amount resulting will be the "Final Completion Amount". (E) While the Independent Firm is making its determination hereunder, the Parties shall not communicate with the Independent Firm on the subject matter of its review, except by joint conference call, joint meeting or letter with copy simultaneously delivered to the other Parties. (F) The Parties will bear their respective fees and expenses (including those of their respective advisors) in preparing or reviewing, as the case may be, the Draft Completion Calculation. (G) The accounting procedures provided for in Schedule 2 shall be the exclusive and conclusive methodology for determination of the matters covered thereby and shall be binding upon the Parties and shall not be contested by any of them other than as provided for in this Clause 3.3.1.
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Sources: Share Purchase Agreement (AquaVenture Holdings LTD)
Adjustment Amount Calculation. Following the Closing Date, the Shareholders' Representative and the Surviving Corporation will cause the Person serving as the Company's Chief Financial Officer immediately prior to the Closing Date, or a certified public accountant reasonably acceptable to Parent, to prepare a balance sheet of the Company as of the Closing Date (A) No later than ninety (90) the "CLOSING BALANCE SHEET"), and to prepare a computation of the Adjustment Amount as of the Closing Date. The Shareholders' Representative will deliver the Closing Balance Sheet to Parent within 45 days after the Completion Closing Date, . The Closing Balance Sheet will be prepared in accordance with GAAP and the Purchaser Adjustment Amount shall deliver to the Seller a statement reflecting the following (the "Draft Completion Calculation"), each other than the Seller Transaction Expenses determined as be calculated in accordance with Section 2.4(c) of the close of business on the Completion Date, but without giving effect to the consummation of the transactions contemplated by this Agreement or any financing transactions in connection therewith:
(1) the Completion Balance Sheet;
(2) the Adjusted Cash;
(3) the BDDG Bank Debt;
(4) the BDDG Debt Service Reserve Balance;
(5) the BDDG Net Bank Debt;
(6) the Consolidated Indebtedness;
(7) the Completion Working Capital;
(8) the Seller Transaction Expenses;
(9) the Adjustment Amount; and
(10) the Pro-Rata Adjustment Amount
(B) Immediately Parent Disclosure Schedules. If within 15 days following delivery of the Draft Completion CalculationClosing Balance Sheet and calculation of the Adjustment Amount, Parent has not given the Shareholders' Representative notice of objection to the Closing Balance Sheet and the Adjustment Amount, then such Adjustment Amount shall be paid as provided in Section 3.2. If Parent gives such notice of objection, then the parties shall attempt to resolve the issues raised in the notice among themselves. If they are unable to reach a resolution within 10 Business Days of such notice, the Purchaser shallissues in dispute will be submitted to KPMG LLP, and shall cause the Company and BDDG to, provide to the Seller reasonable access, during regular business hours, to all information, documentation reasonably requested by the Seller or its financial advisors in respect of the Draft Completion Calculation, including but not limited to access to any financial books and records related to the Company and BDDG in accordance with customary protocols regarding such access.
(C) The Seller may object to the Draft Completion Calculation by written notice to the Purchaser within thirty (30) days following receipt thereof, which notice shall specify in reasonable detail those items or amounts as to which the Seller objects certified public accountants (the "Seller Objection NoticeACCOUNTANTS"), for resolution. If issues in dispute are submitted to the Accountants for resolution, (i) each party will furnish to the Accountants such workpapers and other documents and information relating to the disputed issues as the Accountants may request and are available to that party (or its independent public accountants) and will be afforded the Parties opportunity to present to the Accountants any material relating to the determination and to discuss the determination with the Accountants; (ii) the determination by the Accountants, as set forth in a notice delivered to Parent and the Shareholders' Representative by the Accountants, will be binding and conclusive on the parties; and (iii) one-half of the fees of the Accountants for such determination shall reduce the amount of the Adjustment Amount to be paid to the Shareholders of the Company, and one-half of the fees shall be deemed to have agreed upon all other items and amounts contained in such Draft Completion Calculation which are not impacted paid by items or amounts objected to in the Objection Notice. The Objection Notice shall set forth the Seller’s proposed adjustment to each disputed amount or calculation and the rationale for such disputes. If no Purchaser Objection Notice has been delivered or no Seller Objection Notice is made within the period, then the Draft Completion Calculation shall be conclusive, final and binding the Parties and shall constitute the "Final Completion Calculation" and the amount resulting will be the "Final Completion Amount"Parent.
(D) If a Purchaser Objection Notice has been delivered and/or a Seller Objection Notice is delivered by the Seller, the Parties shall in good faith attempt to resolve any matters in dispute as promptly as practicable. If the Parties are unable to resolve all such items in dispute within thirty (30) days after the receipt of the Draft Completion Amount, then either Party may submit those items or calculations in dispute for resolution to any of the "Big Four" firms which is not conflicted with any of the Parties (either being the "Independent Firm"). The Independent Firm will limit its review only to the specific items or calculations in dispute and pursuant to the rules and parameters set out in this Agreement, including Schedule 2. If the Parties submit any such dispute to the Independent Firm, each such party may submit a “position paper” to the Independent Firm and the other party setting forth the position of such submitting party with respect to such dispute, to be considered by such Independent Firm as it deems fit; provided that, the Independent Firm shall base its determinations solely on information provided by the Parties and the provisions of this Agreement and not by independent review or development of each disputed item. In addition, in resolving any disputed item, the Independent Firm may not assign a value to any item greater than the greatest value for such item claimed by either party or less than the least value for such item claimed by either party. In the case of a dispute and the hiring of an Independent Firm in accordance with this Clause, the fees and expenses of the Independent Firm shall be shared equally by the Parties. The Parties shall instruct the Independent Firm to submit its determination or opinion in a written statement delivered to the Parties as promptly as practicable, but in no event later than thirty (30) days after the appointment of such Independent Firm, and such determination or opinion, together with those items accepted by the Purchaser and the Seller in respect of the Draft Completion Calculation or otherwise resolved between the Parties in accordance with the first sentence of this paragraph shall be conclusive, final and binding on the Parties without possibility of amendment or appeal and shall constitute the "Final Completion Calculation" and the amount resulting will be the "Final Completion Amount".
(E) While the Independent Firm is making its determination hereunder, the Parties shall not communicate with the Independent Firm on the subject matter of its review, except by joint conference call, joint meeting or letter with copy simultaneously delivered to the other Parties.
(F) The Parties will bear their respective fees and expenses (including those of their respective advisors) in preparing or reviewing, as the case may be, the Draft Completion Calculation.
(G) The accounting procedures provided for in Schedule 2 shall be the exclusive and conclusive methodology for determination of the matters covered thereby and shall be binding upon the Parties and shall not be contested by any of them other than as provided for in this Clause 3.3.1.
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