Post-Closing Determination. Within ten (10) days after the Closing Date, Seller Parent shall deliver to Purchaser Parent true and correct copies of all financial books and records of the Sellers necessary for Purchaser Parent to prepare a balance sheet of the Business as of the Closing Date for purposes of calculating the Net Asset Value as of the Closing Date (the “Net Asset Value at Closing”). Within forty (40) days after receipt of such materials from the Seller Parent, the Purchaser Parent and its auditors shall prepare a balance sheet of the Business as of the Closing Date (the “Closing Balance Sheet”) consistent with the manner of computation of the Base Net Asset Value and in conformance with GAAP for the purposes of determining the Net Asset Value at Closing and any resulting adjustments to the Purchase Price pursuant to Section 3.3(a)(ii) (the “Net Asset Value Post Closing Adjustment”); provided, that, the Parties acknowledge and agree that, for purposes of determining the Net Asset Value at Closing, the Parties shall disregard any increase in the accounts receivable of the Sellers between January 31, 2005 and the Closing Date resulting from a decrease in the amount of receivables sold by the Sellers between January 31, 2005 and the Closing Date. The Purchaser Parent and its auditors shall make available to the Seller Parent and its auditors all records and work papers used in preparing the Closing Balance Sheet and the Net Asset Value Post Closing Adjustment. If the Seller Parent disagrees with the computation of any of the Net Asset Value at Closing reflected on the Closing Balance Sheet or the Net Asset Value Post Closing Adjustment, the Seller Parent may, within fifteen (15) days after receipt of the Closing Balance Sheet, deliver a notice (an “Objection Notice”) to the Purchaser Parent setting forth the Seller Parent’s calculation of such Net Asset Value at Closing or such Net Asset Value Post Closing Adjustment. If the Seller Parent does not deliver an Objection Notice within such fifteen (15) day period, then the Net Asset Value at Closing and Net Asset Value Post Closing Adjustment shall be deemed finally determined to be as set forth on the Closing Balance Sheet. If the Seller Parent does deliver an Objection Notice, the Purchaser Parent and the Seller Parent shall use reasonable best efforts to resolve any disagreements as to the computation of the Net Asset Value at Closing or Net Asset Value Post Closing Adjustment, as the case may be, but if they do not obtain a final resolution within thirty (30) days after the Purchaser Parent has received the Objection Notice, the Purchaser Parent and the Seller Parent shall jointly retain an independent accounting firm of recognized standing (the “Firm”) to resolve any remaining disagreements. In any event, a Net Asset Value Post Closing Adjustment shall be made with respect to such amounts as are not in dispute, as set forth in the Objection Notice. If the Purchaser Parent and the Seller Parent are unable to agree on the choice of the Firm, then the Purchaser Parent’s auditors and the Seller Parent’s auditors shall jointly select a “big-four” accounting firm (or a successor) as the Firm. The Purchaser Parent and the Seller Parent shall direct the Firm to render a determination within thirty (30) days after its retention and the Purchaser Parent, the Seller Parent, and their respective agents shall cooperate with the Firm during its engagement. The Firm shall consider only those items and amounts set forth in the Objection Notice which the Purchaser Parent and the Seller Parent are unable to resolve. The Purchaser Parent and the Seller Parent shall each make written submissions to the Firm promptly (and in any event within twenty (20) days after the Firm’s retention), which submissions shall contain such Party’s computation of the Net Asset Value at Closing and Net Asset Value Post Closing Adjustment and information, arguments, and support for such Party’s position. The Firm shall review such submissions and base its determination solely on them. In resolving any disputed item, the 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 smallest value for such item claimed by either party. The Firm’s determination shall be based on the definition of the Net Asset Value, included herein. The determination of the Firm shall be conclusive and binding upon the Parties. The Purchaser Parent and the Seller Parent shall each bear 50% of the costs and expenses of the Firm.
Appears in 2 contracts
Samples: Asset Purchase Agreement (Powerwave Technologies Inc), Asset Purchase Agreement (Remec Inc)
Post-Closing Determination. Within ten the later of (10i) ninety (90) calendar days after the Closing DateDate and, Seller if applicable, (ii) within five (5) Business Days of the final determination of the Specified SAR Liability pursuant to the applicable award agreement referred to in Section 1.1(b) of the Disclosure Schedule, Parent shall prepare and deliver to Purchaser Parent true the Equityholder Representative good faith determinations and correct copies of all financial books and records reasonably detailed computations of the Sellers necessary for Purchaser Adjustment Items, each calculated in accordance with their respective definition herein, and, to the extent applicable, the Accounting Principles. From the date of delivery of such computations by Parent until the Adjustment Items are finally determined pursuant to prepare a balance sheet this Section 2.7(b), Parent shall make available to the Equityholder Representative, at reasonable times during normal business hours and with reasonable advance notice, all records, work papers and appropriate personnel used in preparing the computations of the Business as Adjustment Items or necessary to understand a component of the Closing Date computation thereof, in each case solely for purposes of calculating the Net Asset Value as Equityholder Representative's review of Parent's computations of the Closing Date Adjustment Items. If the Equityholder Representative disagrees with the computation of the Adjustment Items as calculated by Parent, the Equityholder Representative may, within thirty (the “Net Asset Value at Closing”). Within forty (4030) calendar days after receipt of such materials from the Seller Parent, the Purchaser Parent and its auditors shall prepare a balance sheet of the Business as of the Closing Date (the “Closing Balance Sheet”) consistent calculations in accordance with the manner of computation of the Base Net Asset Value and in conformance with GAAP for the purposes of determining the Net Asset Value at Closing and any resulting adjustments to the Purchase Price pursuant to this Section 3.3(a)(ii) (the “Net Asset Value Post Closing Adjustment”2.7(b); provided, that, the Parties acknowledge and agree that, for purposes of determining the Net Asset Value at Closing, the Parties shall disregard any increase in the accounts receivable of the Sellers between January 31, 2005 and the Closing Date resulting from a decrease in the amount of receivables sold by the Sellers between January 31, 2005 and the Closing Date. The Purchaser Parent and its auditors shall make available to the Seller Parent and its auditors all records and work papers used in preparing the Closing Balance Sheet and the Net Asset Value Post Closing Adjustment. If the Seller Parent disagrees with the computation of any of the Net Asset Value at Closing reflected on the Closing Balance Sheet or the Net Asset Value Post Closing Adjustment, the Seller Parent may, within fifteen (15) days after receipt of the Closing Balance Sheet, deliver a notice (an “"Objection Notice”") on behalf of the Equityholders to Parent providing reasonable detail of the Purchaser Parent reasons for such disagreement and setting forth the Seller Parent’s Equityholder Representative's calculation of the Adjustment Items in dispute to the extent then known. The Objection Notice shall specify all Adjustment Items and amounts thereof as to which the Equityholder Representative disagrees, and the Equityholder Representative, on behalf of the Equityholders, shall be deemed to have agreed with all other Adjustment Items and amounts thereof as determined by Parent and such Net Asset Value at Closing or such Net Asset Value Post Closing AdjustmentAdjustment Items and amounts shall be deemed to be finally determined and shall be final, conclusive and binding on the parties hereto and the Equityholders. If the Seller Parent Equityholder Representative does not deliver an Objection Notice within such fifteen thirty (1530) calendar day period, then the Net Asset Value at Closing and Net Asset Value Post Closing Adjustment Items as determined by Parent shall be deemed to be finally determined to and shall be as set forth final, conclusive and binding on the Closing Balance Sheetparties hereto and the Equityholders. If the Seller Parent does deliver Equityholder Representative delivers an Objection NoticeNotice to Parent within such thirty (30) calendar day period, the Purchaser Parent Equityholder Representative and the Seller Parent shall use their respective commercially reasonable best efforts and shall reasonably cooperate in good faith to resolve any disagreements disagreement as to the computation of the Net Asset Value at Closing or Net Asset Value Post Closing Adjustment, Adjustment Items in dispute as the case may besoon as practicable, but if they do cannot obtain reach a final resolution within thirty (30) calendar days after the Purchaser Parent has received the Objection Notice, the Purchaser Parent and the Seller Parent shall Equityholder Representative on behalf of the Equityholders shall, at the election of either party, jointly retain an independent RSM US LLP or, if agreed to by Parent and the Equityholder Representative, a nationally recognized accounting firm of recognized standing comparable stature acceptable to both the Equityholder Representative and Parent (the “"Accounting Firm”) to resolve any remaining disagreements"). In any event, a Net Asset Value Post Closing Adjustment shall be made with respect to such amounts as are not in dispute, as set forth in the Objection Notice. If the Purchaser Parent and the Seller Parent are unable to agree on the choice of the Firm, then the Purchaser Parent’s auditors and the Seller Parent’s auditors shall jointly select a “big-four” accounting firm (or a successor) as the Firm. The Purchaser Parent and the Seller Parent Equityholder Representative shall direct the Accounting Firm to render a determination within thirty (30) calendar days after its retention and Parent and the Purchaser Parent, the Seller Parent, Equityholder Representative and their respective agents shall reasonably cooperate in good faith with the Accounting Firm during its engagement. The Accounting Firm shall consider only those items and amounts set forth in the Objection Notice which the Purchaser that Parent and the Seller Parent Equityholder Representative are unable to resolve. The Purchaser Parent and the Seller Parent shall each make written submissions to the Firm promptly (and in any event within twenty (20) days after the Firm’s retention), which submissions shall contain such Party’s computation of the Net Asset Value at Closing and Net Asset Value Post Closing Adjustment and information, arguments, and support for such Party’s position. The Firm shall review such submissions and base its determination solely on them. In resolving any disputed item, the Accounting 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 smallest value for such item claimed by either party. In rendering its determination, the Accounting Firm shall act as an expert and not as an arbitrator. The Accounting Firm’s 's determination shall be based solely on (i) the definition definitions of the Net Asset ValueAdjustment Items set forth in this Agreement, included herein(ii) the Accounting Principles and (iii) written materials submitted by the Equityholder Representative and Parent (or by in-person telephonic conferences if mutually agreed by Parent, the Equityholder Representative and the Accounting Firm) and not by independent review. The determination of the disputed Adjustment Items by the Accounting Firm shall be conclusive and binding upon the Parties. The Purchaser Parent parties hereto and the Seller Parent Equityholders. Parent, on the one hand, and the Equityholder Representative, on the other hand, shall each bear 50% of the costs and expenses of the Accounting Firm based on the percentage which the portion of the contested amount not awarded to each party bears to the amount actually contested by or on behalf of such party, as determined by the Accounting Firm. By way of example and not by way of limitation, if the Equityholder Representative seeks a $700,000 aggregate upward adjustment pursuant to this Section 2.7(b) and the Accounting Firm determines that there shall be a $400,000 upward adjustment thereto, then the Equityholder Representative shall be responsible for three-sevenths (3/7th) of the fees and expenses and Parent shall be responsible for four-sevenths (4/7th) of the fees and expenses. The Adjustment Items as finally determined pursuant to this Section 2.7(b), are referred to herein as the "Final Company Cash and Cash Equivalents," "Final Tax Benefit Amount," "Final Company Working Capital," "Final Company Fees and Expenses," "Final Indebtedness for Borrowed Money" and "Final Income Taxes," respectively.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (E.W. SCRIPPS Co), Agreement and Plan of Merger (E.W. SCRIPPS Co)
Post-Closing Determination. Within ten (10) No later than 120 days after the Closing Date, Seller Parent shall will prepare (it being agreed that the Purchaser's employees and representatives (including PricewaterhouseCoopers) will be entitled to participate in such preparation together with Seller, subject to Seller's overall supervision and control of such preparation) and deliver to Purchaser Parent true a Closing Date balance sheet reflecting the assets and correct copies of all financial books and records liabilities of the Sellers necessary for Division transferred to and assumed by Purchaser Parent to prepare a balance sheet and its Affiliates and reflecting the Tangible Net Book Value of the Business as of Division (the "Draft Closing Date for purposes of calculating the Net Asset Value as of the Closing Date (the “Net Asset Value at Closing”Balance Sheet"). Within forty (40) days after receipt of such materials from the Seller Parent, the If Purchaser Parent and its auditors shall prepare a balance sheet of the Business as of the Closing Date (the “Closing Balance Sheet”) consistent with the manner of computation of the Base Net Asset Value and in conformance with GAAP for the purposes of determining the Net Asset Value at Closing and any resulting adjustments to the Purchase Price pursuant to Section 3.3(a)(ii) (the “Net Asset Value Post Closing Adjustment”); provided, that, the Parties acknowledge and agree that, for purposes of determining the Net Asset Value at Closing, the Parties shall disregard any increase in the accounts receivable of the Sellers between January 31, 2005 and the Closing Date resulting from a decrease in the amount of receivables sold by the Sellers between January 31, 2005 and the Closing Date. The Purchaser Parent and its auditors shall make available to the Seller Parent and its auditors all records and work papers used in preparing the Closing Balance Sheet and the Net Asset Value Post Closing Adjustment. If the Seller Parent disagrees with the computation of any calculation of the Tangible Net Asset Book Value at Closing of the Division reflected on the Draft Closing Date Balance Sheet or the Net Asset Value Post Closing AdjustmentSheet, the Seller Parent Purchaser may, within fifteen (15) 30 days after receipt of the Draft Closing Date Balance Sheet, deliver a notice (an “"Objection Notice”") to the Purchaser Parent Seller setting forth the Seller Parent’s calculation of any such Net Asset Value at Closing or such Net Asset Value Post Closing Adjustmentdisagreement. If the Seller Parent Purchaser does not deliver an Objection Notice within such fifteen (15) 30 day period, then the Tangible Net Asset Book Value at Closing and Net Asset Value Post Closing Adjustment shall be deemed finally determined to be as set forth on the Draft Closing Date Balance SheetSheet shall be deemed final and conclusive and binding on each of the parties. If the Purchaser and Seller Parent does deliver an Objection Notice, the Purchaser Parent and the Seller Parent shall will use reasonable best efforts to resolve any disagreements as to the computation calculation of the Tangible Net Asset Book Value at Closing or Net Asset Value Post Closing Adjustment, as of the case may beDivision, but if they do not obtain a final resolution within thirty (30) no later than 30 days after the Purchaser Parent has received Seller's receipt of the Objection Notice, the Purchaser Parent and the Seller Parent shall will jointly retain an independent accounting firm of recognized national standing (the “"Firm”") to resolve any remaining disagreements. In any event, a Net Asset Value Post Closing Adjustment shall be made with respect to such amounts as are not in dispute, as set forth in the Objection Notice. If the Purchaser Parent and the Seller Parent are unable to agree on the choice of the Firm, then the Purchaser Parent’s auditors and the Seller Parent’s auditors shall jointly select Firm will be a “"big-four” five" accounting firm selected by lot (or a successor) as the Firmafter excluding one firm designated by Purchaser and one firm designated by Seller). The Purchaser Parent and the Seller Parent shall will direct the Firm to render a determination within thirty (30) 30 days after of its retention and the Purchaser ParentPurchaser, the Seller Parent, and their respective agents shall will cooperate with the Firm during its engagement. The Firm shall will consider only those items and amounts with respect to the Draft Closing Date Balance Sheet set forth in the Objection Notice which the Purchaser Parent and the Seller Parent are unable to resolve. The Purchaser Parent and the Seller Parent shall each make written submissions to the Firm promptly (and in any event within twenty (20) no later than 15 days after the Firm’s retention's engagement), which submissions shall contain such Party’s party's computation of the Tangible Net Asset Book Value at Closing and Net Asset Value Post Closing Adjustment and information, arguments, and support for such Party’s party's position. The Firm shall review such submissions and base its determination solely on themsuch submissions. In resolving any disputed item, the 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 smallest value for such item claimed by either party. The Firm’s 's determination shall will be based on the definition of the Tangible Net Asset Value, Book Value included herein. The determination of the Firm shall will be conclusive and binding upon the PartiesPurchaser and Seller. The Purchaser Parent and the Seller Parent shall each bear 50% of the costs and expenses of the Firm based on the percentage which the portion of the contested amount not awarded to each party bears to the amount actually contested by such party (e.g., if Seller makes a claim for $1,000 and Purchaser only contests $500 of the amount claimed by Seller, and if the Firm resolves the dispute by awarding Seller $300 of the $500 contested, then the Firm's costs and expenses will be allocated 60% to Purchaser and 40% to Seller). The Tangible Net Book Value as finally determined pursuant to this Section 1.4(b) is referred herein as the "Actual Tangible Net Book Value" and the final balance sheet on which it is reflected as the "Closing Date Balance Sheet."
Appears in 2 contracts
Samples: Purchase Agreement (Merant PLC), Purchase Agreement (Merant PLC)
Post-Closing Determination. Within ten seventy-five (1075) days after the Closing Date, Seller Parent Buyer shall prepare and deliver to Purchaser Parent true Seller a statement for the Company and correct copies of all financial books and records of the Sellers necessary for Purchaser Parent to prepare a balance sheet of the Business Company Subsidiaries as of the Closing Date for purposes of calculating the Net Asset Value as of the Closing Date (the “Net Asset Value at Closing”). Within forty (40) days after receipt of such materials from the Seller Parent, the Purchaser Parent and its auditors shall prepare a balance sheet of the Business as of the Closing Date (the “Closing Balance SheetStatement”) consistent with ), which shall include the manner of computation Cash and Cash Equivalents of the Base Net Asset Value Company and in conformance with GAAP for the purposes of determining the Net Asset Value at Closing and any resulting adjustments to the Purchase Price pursuant to Section 3.3(a)(ii) (the “Net Asset Value Post Closing Adjustment”); provided, thatCompany Subsidiaries, the Parties acknowledge Indebtedness of the Company and agree that, for purposes the Company Subsidiaries as of determining the Net Asset Value at Closing, the Parties Transaction Expenses, and the Working Capital of the Company and the Company Subsidiaries as of the Closing. The Closing Statement shall disregard any increase be prepared in a manner consistent with (i) the definitions of Cash and Cash Equivalents, Indebtedness, Transaction Expenses, and Working Capital set forth herein and (ii) the methodologies, practices and assumptions set forth in the accounts receivable of the Sellers between January 31, 2005 and the Closing Date resulting from a decrease in the amount of receivables sold by the Sellers between January 31, 2005 and the Closing DateWorking Capital Schedule. The Purchaser Parent and its auditors Buyer shall make available to the Seller Parent and its auditors all records and work papers used in preparing the Closing Balance Sheet Statement and the Net Asset Value Post Closing Adjustmentcomputation of Cash and Cash Equivalents, Indebtedness, Transaction Expenses, and Working Capital of the Company and the Company Subsidiaries as of the Closing. If the Seller Parent disagrees with the computation of any the Cash and Cash Equivalents, Working Capital, Indebtedness, or Transaction Expenses of the Net Asset Value at Company and the Company Subsidiaries as of the Closing as calculated by Buyer or any other items reflected on the Closing Balance Sheet or the Net Asset Value Post Closing AdjustmentStatement, the Seller Parent may, within fifteen sixty (1560) days after receipt of the Closing Balance SheetStatement, deliver a notice (an “Objection Notice”) to the Purchaser Parent Buyer setting forth the Seller Parentin reasonable detail Seller’s calculation of such Net Asset Value at Closing or such Net Asset Value Post Closing Adjustmentthe Cash and Cash Equivalents, the Indebtedness, the Transaction Expenses and the Working Capital of the Company and the Company Subsidiaries as of the Closing. If the Seller Parent does not deliver an Objection Notice within such fifteen period of sixty (1560) day perioddays, then Buyer’s calculations of the Net Asset Value at Cash and Cash Equivalents, Indebtedness, Transaction Expenses, and Working Capital of the Company and the Company Subsidiaries as of Closing and Net Asset Value Post Closing Adjustment shall be deemed finally determined to be the Actual Closing Cash and Cash Equivalents, the Actual Closing Indebtedness, the Actual Transaction Expenses and the Actual Closing Working Capital (each, as set forth on the Closing Balance Sheetdefined below). If the Seller Parent does deliver delivers an Objection NoticeNotice to Buyer, the Purchaser Parent then Buyer and the Seller Parent shall use reasonable best good faith efforts to resolve any disagreements disagreement as to the computation of the Net Asset Value at Closing or Net Asset Value Post Closing AdjustmentCash and Cash Equivalents, Indebtedness, Transaction Expenses, and Working Capital of the Company and the Company Subsidiaries as of the Closing, in each case, as the case may besoon as practicable, but if they do cannot obtain reach a final resolution within thirty (30) days after the Purchaser Parent Buyer has received the Objection Notice, the Purchaser Parent Buyer and the Seller Parent shall jointly retain an independent Deloitte & Touche LLP (“Deloitte”) or, if Deloitte is unwilling or unable to serve or if otherwise agreed by Buyer and Seller, another nationally recognized accounting firm of recognized standing comparable stature reasonably acceptable to both Buyer and Seller (the “Accounting Firm”) to resolve any remaining disagreements). In any event, a Net Asset Value Post Closing Adjustment shall be made with respect to such amounts as are not in dispute, as set forth in the Objection Notice. If the Purchaser Parent Buyer and the Seller Parent are unable to agree on the choice of the Firm, then the Purchaser Parent’s auditors and the Seller Parent’s auditors shall jointly select a “big-four” accounting firm (or a successor) as the Firm. The Purchaser Parent and the Seller Parent shall direct the Accounting Firm to render a determination within thirty (30) days after its retention and the Purchaser ParentBuyer, the Seller Parent, and their respective agents shall cooperate with the Accounting Firm during its engagement. The Accounting Firm shall consider only those items and amounts set forth in the Objection Notice which the Purchaser Parent that Buyer and the Seller Parent are unable to resolveresolve including any updates to the calculations of the amounts of such items after the good faith resolution discussion that are presented to the Accounting Firm by either Buyer or Seller (the “Presented Positions”), and shall select as a resolution the position of either Buyer or Seller for the disputed items that is, in the aggregate, more accurate pursuant to the terms of this Section 2.3 and, based on such determination, adopt, either the aggregate amount of the Presented Positions claimed by Buyer or Seller (based solely on presentations and supporting material provided by such parties and not pursuant to any independent review) and may not impose an alternative resolution. The Purchaser Parent and the Seller Parent shall each make written submissions to the Firm promptly (and in any event within twenty (20) days after the Firm’s retention), which submissions shall contain such Party’s computation of the Net Asset Value at Closing and Net Asset Value Post Closing Adjustment and information, arguments, and support for such Party’s position. The Firm shall review such submissions and base its determination solely on them. In resolving any disputed item, the 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 smallest value for such item claimed by either party. The Accounting Firm’s determination shall be based on such review as the definition Accounting Firm deems necessary to make its determination and (A) the definitions of the Net Asset ValueCash and Cash Equivalents, included herein. The determination of the Firm shall be conclusive Indebtedness, Transaction Expenses, and binding upon the Parties. The Purchaser Parent Working Capital set forth in this Agreement and the Seller Parent shall each bear 50% of the costs and expenses of the Firm.(B)
Appears in 2 contracts
Samples: Stock Purchase Agreement, Stock Purchase Agreement (Armstrong Flooring, Inc.)
Post-Closing Determination. Within ten sixty (1060) days after the Closing Date, Seller Parent the Buyer and its auditors shall prepare, and deliver to Purchaser Parent true and correct copies of all financial books and records of the Sellers necessary for Purchaser Parent to prepare Seller Representative, (i) a statement, which shall include (A) a consolidated balance sheet of the Business as Company and its Subsidiaries, and (B) the Buyer’s determinations of the Closing Date for purposes of calculating Cash Amount, the Indebtedness Payoff Amount and the Net Asset Value as Working Capital Amount, and (ii) the Buyer’s calculation of the Closing Date Actual Purchase Price (as defined below) (collectively, the “Net Asset Value at ClosingDraft Computation”). Within forty (40) days after receipt of such materials from the Seller Parent, the Purchaser Parent The Buyer and its auditors shall prepare a balance sheet of the Business as of the Closing Date (the “Closing Balance Sheet”) consistent with the manner of computation of the Base Net Asset Value and in conformance with GAAP for the purposes of determining the Net Asset Value at Closing and any resulting adjustments to the Purchase Price pursuant to Section 3.3(a)(ii) (the “Net Asset Value Post Closing Adjustment”); provided, that, the Parties acknowledge and agree that, for purposes of determining the Net Asset Value at Closing, the Parties shall disregard any increase in the accounts receivable of the Sellers between January 31, 2005 and the Closing Date resulting from a decrease in the amount of receivables sold by the Sellers between January 31, 2005 and the Closing Date. The Purchaser Parent and its auditors shall will make available to the Seller Parent Representative and its auditors all records and work papers used in preparing the Closing Balance Sheet Draft Computation, and will prepare and deliver to the Seller Representative a detailed analysis of the changes behind any material variance(s) between the Buyer’s determinations of the Cash Amount, the Indebtedness Payoff Amount and the Net Asset Value Post Closing AdjustmentWorking Capital Amount, and the corresponding estimates of such amounts as determined by the Company and referred to in Section 2.01 hereof. If the Seller Parent Representative disagrees with the computation of any aspect of the Net Asset Value at Closing reflected on the Closing Balance Sheet or the Net Asset Value Post Closing AdjustmentDraft Computation, the Seller Parent Representative may, within fifteen forty-five (1545) days after receipt of the Closing Balance SheetDraft Computation, deliver a notice (an “Objection Notice”) to the Purchaser Parent Buyer setting forth the Seller ParentRepresentative’s determination of the Cash Amount, the Indebtedness Payoff Amount and/or the Net Working Capital Amount and the Seller Representative’s calculation of such Net Asset Value at Closing or such Net Asset Value Post Closing Adjustmentthe Actual Purchase Price. If the Seller Parent Representative does not deliver an Objection Notice to the Buyer within such fifteen forty-five (1545) day perioddays after receipt of the Draft Computation, then the Net Asset Value at Closing parties hereto will be deemed to have agreed to the Draft Computation and Net Asset Value Post Closing Adjustment such computation shall be deemed to be finally determined to be as set forth on the Closing Balance Sheettherein. If the Seller Parent does deliver an Objection Notice, the Purchaser Parent The Buyer and the Seller Parent Representative shall use reasonable best efforts to resolve any disagreements as to the computation of Draft Computation and the Net Asset Value at Closing or Net Asset Value Post Closing Adjustment, as the case may beObjection Notice, but if they do not obtain a final resolution within thirty forty-five (3045) days after the Purchaser Parent Buyer has received the Objection Notice, the Purchaser Parent Buyer and the Seller Parent Representative shall jointly retain an independent McGladrey LLP, or such other accounting firm of recognized standing acceptable to the Buyer and the Seller Representative (the “Firm”) to resolve any remaining disagreements. In any event, a Net Asset Value Post Closing Adjustment shall be made with respect to such amounts as are not in dispute, as set forth in the Objection Notice. If the Purchaser Parent The Buyer and the Seller Parent are unable to agree on the choice of the Firm, then the Purchaser Parent’s auditors and the Seller Parent’s auditors shall jointly select a “big-four” accounting firm (or a successor) as the Firm. The Purchaser Parent and the Seller Parent Representative shall direct the Firm to render a determination within thirty (30) days after its retention and the Purchaser ParentBuyer, the Seller Parent, Representative and their respective agents shall cooperate with the Firm during its engagement. The Firm shall may consider only those items and amounts set forth in the Draft Computation or Objection Notice which the Purchaser Parent Buyer and the Seller Parent Representative are unable to resolve. The Purchaser Parent and the Seller Parent shall each make written submissions to the Firm promptly (and in any event within twenty (20) days after the Firm’s retention), which submissions shall contain such Party’s computation of the Net Asset Value at Closing and Net Asset Value Post Closing Adjustment and information, arguments, and support for such Party’s position. The Firm shall review such submissions and base its determination solely on them. In resolving any disputed item, the Firm will act as an expert and not as an arbitrator in conducting its analysis, and may not assign a value to any item greater than the greatest value for such item claimed by either party or less than the smallest value for such item claimed by either party. The Firm’s determination shall be based solely on written submissions by the Buyer and the Seller Representative (i.e., not on independent review) and on the definition of the Net Asset Value, definitions included herein. The determination of the Firm shall be conclusive and binding upon the PartiesBuyer and the Sellers. The Purchaser Parent and the Seller Parent shall each bear 50% of the costs and expenses of the FirmFirm shall be borne (i) by the Sellers (on a pro rata basis as allocated by the Seller Representative) if the objections raised in the Objection Notice are resolved in favor of the Buyer, or (ii) by the Buyer if the objections raised in the Objection Notice are resolved in favor of the Sellers. If the objections raised in the Objection Notice are resolved in part in favor of the Sellers and part in favor of the Buyer, such costs and expenses shall be shared by the Buyer, on the one hand, and the Sellers (on a pro rata basis as allocated by the Seller Representative), on the other hand, in proportion to the aggregate dollar amount of such objections resolved in favor of the Sellers compared to the aggregate dollar amount of such objections resolved in favor of the Buyer.
Appears in 2 contracts
Samples: Securities Purchase Agreement, Securities Purchase Agreement (Calumet Specialty Products Partners, L.P.)
Post-Closing Determination. Within ten (10) 90 days after the Closing -------------------------- Date, Seller Parent shall deliver to the Purchaser Parent true and correct copies of all financial books and records its auditors will conduct a review (the "Closing ------- Review") of the Sellers necessary for Purchaser Parent to prepare a balance sheet of the Business Net Assets as of the close of business on the day before the ------ Closing Date for purposes and will prepare and deliver to the Seller a computation of calculating the amount of the Net Asset Value Assets as of the close of business on the day before the Closing Date (the “Net Asset Value at Closing”"Draft Balance Sheet"). Within forty (40) days after receipt of such materials from the Seller Parent, the The Purchaser Parent and its auditors shall prepare a balance sheet of the Business as of the Closing Date (the “Closing Balance Sheet”) consistent with the manner of computation of the Base Net Asset Value and in conformance with GAAP for the purposes of determining the Net Asset Value at Closing and any resulting adjustments to the Purchase Price pursuant to Section 3.3(a)(ii) (the “Net Asset Value Post Closing Adjustment”); provided, that, the Parties acknowledge and agree that, for purposes of determining the Net Asset Value at Closing, the Parties shall disregard any increase in the accounts receivable of the Sellers between January 31, 2005 and the Closing Date resulting from a decrease in the amount of receivables sold by the Sellers between January 31, 2005 and the Closing Date. The Purchaser Parent and its auditors shall will ------------------- make available to the Seller Parent and its auditors all records and work papers used in preparing the Closing Draft Balance Sheet and the Net Asset Value Post Closing AdjustmentSheet. If the Seller Parent disagrees with the computation of any of the Net Asset Value at Closing Assets reflected on the Closing Draft Balance Sheet or the Net Asset Value Post Closing AdjustmentSheet, the Seller Parent may, within fifteen thirty (1530) days after receipt of the Closing Draft Balance Sheet, deliver a notice (an “"Objection Notice”") to the Purchaser Parent setting forth the Seller Parent’s Seller's ---------------- calculation of such Net Asset Value at Closing or such Net Asset Value Post Closing Adjustment. If the Seller Parent does not deliver an Objection Notice within such fifteen (15) day period, then amount of the Net Asset Value at Closing and Net Asset Value Post Closing Adjustment shall be deemed finally determined to be Assets as set forth of the close of business on the day before the Closing Balance SheetDate. If the Seller Parent does deliver an Objection Notice, the The Purchaser Parent and the Seller Parent shall will use reasonable best efforts to resolve any disagreements as to the computation of the Net Asset Value at Closing or Net Asset Value Post Closing Adjustment, as the case may beAssets, but if they do not obtain a final resolution within thirty (30) days after the Purchaser Parent has received the Objection Notice, the Purchaser Parent and the Seller Parent shall will jointly retain an independent accounting firm of recognized national or regional standing (the “"Firm”") to resolve any remaining disagreements. In any event, a Net Asset Value Post Closing Adjustment shall be made with respect to such amounts as are not in dispute, as set forth in the Objection Notice. If the ---- Purchaser Parent and the Seller Parent are unable to agree on the choice of the Firm, then the Firm will be a "big-six" accounting firm selected by lot (after excluding one firm designated by the Purchaser Parent’s auditors and one firm designated by the Seller). The Purchaser and the Seller Parent’s auditors shall jointly select a “big-four” accounting firm (or a successor) as the Firm. The Purchaser Parent and the Seller Parent shall will direct the Firm to render a determination within thirty (30) 30 days after of its retention and the Purchaser ParentPurchaser, the Seller ParentSeller, the Stockholders and their respective agents shall will cooperate with the Firm during its engagement. The Firm shall will consider only those items and amounts in the Draft Balance Sheet set forth in the Objection Notice which the Purchaser Parent and the Seller Parent are unable to resolve. The Purchaser Parent and the Seller Parent shall each make written submissions to the Firm promptly (and in any event within twenty (20) days after the Firm’s retention), which submissions shall contain such Party’s computation of the Net Asset Value at Closing and Net Asset Value Post Closing Adjustment and information, arguments, and support for such Party’s position. The Firm shall review such submissions and base its determination solely on them. In resolving any disputed item, the 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 smallest value for such item claimed by either party. The Firm’s 's determination shall will be based solely on presentations by the Purchaser and the Seller (i.e., not on independent review), and on the definition of the Net Asset Value, Assets included herein. The determination of the Firm shall will be conclusive and binding upon the PartiesPurchaser, the Seller and the Stockholders. The Purchaser Parent and the Seller Parent shall each bear 50% of the costs and expenses of the FirmFirm based on the percentage which the portion of the contested amount not awarded to each party bears to the amount actually contested by such party. The amount of the Net Assets, as finally determined pursuant to this Section 2.2(b), is referred to herein as the "Actual Net Assets." -----------------
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Post-Closing Determination. Within ten (10) 90 days after the Closing Date, Seller Parent shall deliver to Purchaser Parent true and correct copies of all financial books and records of the Sellers necessary for Purchaser Parent to prepare a balance sheet of the Business as of the Closing Date for purposes of calculating the Net Asset Value as of the Closing Date (the “Net Asset Value at Closing”). Within forty (40) days after receipt of such materials from the Seller Parent, the Purchaser Parent Buyer and its auditors shall prepare a balance sheet prepare, and deliver to the Representative, (i) the Buyer's determinations of Closing Working Capital, Closing Cash and Closing Indebtedness, and (ii) the Buyer's calculation of the Business as of the Closing Date (the “Closing Balance Sheet”) consistent with the manner of computation of the Base Net Asset Value and in conformance with GAAP for the purposes of determining the Net Asset Value at Closing and any resulting adjustments to the Actual Purchase Price pursuant to Section 3.3(a)(ii) (the “Net Asset Value Post Closing Adjustment”); provided, thatcollectively, the Parties acknowledge and agree that, for purposes of determining the Net Asset Value at Closing, the Parties shall disregard any increase in the accounts receivable of the Sellers between January 31, 2005 and the Closing Date resulting from a decrease in the amount of receivables sold by the Sellers between January 31, 2005 and the Closing Date"Draft Computation"). The Purchaser Parent Buyer and its auditors shall will make available to the Seller Parent Representative and its auditors all records and work papers used in preparing the Closing Balance Sheet and the Net Asset Value Post Closing AdjustmentDraft Computation. If the Seller Parent Representative disagrees with the computation of any aspect of the Net Asset Value at Closing reflected on the Closing Balance Sheet or the Net Asset Value Post Closing AdjustmentDraft Computation, the Seller Parent Representative may, within fifteen (15) 60 days after receipt of the Closing Balance SheetDraft Computation, deliver a notice (an “"Objection Notice”") to the Purchaser Parent Buyer setting forth the Seller Parent’s Representative's determination of Closing Working Capital, Closing Cash and/or Closing Indebtedness and the Representative's calculation of such Net Asset Value at Closing or such Net Asset Value Post Closing Adjustmentthe Actual Purchase Price. If the Seller Parent does not deliver an Objection Notice within such fifteen (15) day period, then the Net Asset Value at Closing and Net Asset Value Post Closing Adjustment shall be deemed finally determined to be as set forth on the Closing Balance Sheet. If the Seller Parent does deliver an Objection Notice, the Purchaser Parent The Buyer and the Seller Parent Representative shall use reasonable best efforts to resolve any disagreements as to the computation of Draft Computation and the Net Asset Value at Closing or Net Asset Value Post Closing Adjustment, as the case may beObjection Notice, but if they do not obtain a final resolution within thirty (30) 60 days after the Purchaser Parent Buyer has received the Objection Notice, the Purchaser Parent Buyer and the Seller Parent Representative shall jointly retain an independent accounting firm of recognized national standing (the “"Firm”") to resolve any remaining disagreements. In any event, a Net Asset Value Post Closing Adjustment shall be made with respect to such amounts as are not in dispute, as set forth in the Objection Notice. If the Purchaser Parent Buyer and the Seller Parent Representative are unable to agree on the choice of the Firm, then the Purchaser Parent’s auditors and the Seller Parent’s auditors Firm shall jointly select be a “"big-four” five" accounting firm (or a successor) as selected by lot (after excluding one firm designated by the FirmBuyer and one firm designated by the Representative). The Purchaser Parent Buyer and the Seller Parent Representative shall direct the Firm to render a determination within thirty (30) 30 days after its retention and the Purchaser ParentBuyer, the Seller Parent, Representative and their respective agents shall cooperate with the Firm during its engagement. The Firm shall may consider only those items and amounts set forth in the Draft Computation or Objection Notice which the Purchaser Parent Buyer and the Seller Parent Representative are unable to resolve. The Purchaser Parent and the Seller Parent shall each make written submissions to the Firm promptly (and in any event within twenty (20) days after the Firm’s retention), which submissions shall contain such Party’s computation of the Net Asset Value at Closing and Net Asset Value Post Closing Adjustment and information, arguments, and support for such Party’s position. The Firm shall review such submissions and base its determination solely on them. In resolving any disputed item, the 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 smallest value for such item claimed by either party. The Firm’s 's determination shall be based solely on written submissions by the Buyer and the Representative (i.e., not on independent review) and on the definition of the Net Asset Value, definitions included herein. The determination of the Firm shall be conclusive and binding upon each of the Partiesparties hereto. The Purchaser Parent Buyer and the Seller Parent Sellers shall each bear 50% of the costs and expenses of the FirmFirm based on the percentage which the portion of the contested amount not awarded to each party bears to the amount actually contested by such party.
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Post-Closing Determination. Within ten sixty (1060) days after the Closing DateDate the Company and its auditors will prepare, Seller Parent shall and deliver to Purchaser Parent true and correct copies of all financial books and records of the Sellers necessary for Purchaser Parent to prepare a Stockholder, an audited balance sheet of the Business Company (the "Closing Balance Sheet") as of the Closing Date for purposes which will reflect the Company's determination of calculating the Net Asset Value Working Capital as of the Closing Date and the Indebtedness Amount as of the Closing Date (the “Net Asset Value at Closing”"Draft Computation"). Within forty (40) days after receipt of such materials from the Seller Parent, the Purchaser Parent The Company and its auditors shall prepare a balance sheet of will make available to the Business Stockholder and its auditors all records and work papers necessary to accurately compute the Working Capital and Indebtedness as of the Closing Date (the “Closing Balance Sheet”) consistent with the manner of computation of the Base Net Asset Value and in conformance with GAAP for the purposes of determining the Net Asset Value at Closing and any resulting adjustments to the Purchase Price pursuant to Section 3.3(a)(ii) (the “Net Asset Value Post Closing Adjustment”); providedDate, that, the Parties acknowledge and agree that, for purposes of determining the Net Asset Value at Closing, the Parties shall disregard any increase in the accounts receivable of the Sellers between January 31, 2005 and the Closing Date resulting from a decrease in the amount of receivables sold by the Sellers between January 31, 2005 and the Closing Date. The Purchaser Parent and its auditors shall make available to the Seller Parent and its auditors including without limitation all records and work papers used in preparing the Closing Balance Sheet and the Net Asset Value Post Closing AdjustmentDraft Computation. If the Seller Parent Stockholder disagrees with the computation of any of the Net Asset Value at Closing Working Capital or the Indebtedness Amount reflected on the Closing Balance Sheet or the Net Asset Value Post Closing AdjustmentDraft Computation, the Seller Parent Stockholder may, within fifteen sixty (1560) days after receipt of the Closing Balance SheetDraft Computation, deliver a notice (an “"Objection Notice”") to the Purchaser Parent Company setting forth the Seller Parent’s Stockholder's calculation of such Net Asset Value at the Working Capital as of the close of business on the day before the Closing or such Net Asset Value Post Date and the Indebtedness Amount as of the Closing AdjustmentDate. If the Seller Parent Stockholder does not deliver an Objection Notice within such fifteen sixty (1560) day perioddays after receipt of the Draft Computation, then the Net Asset Value at Closing and Net Asset Value Post Closing Adjustment Draft Computation shall be deemed finally determined to be as set forth on conclusive and binding upon the Closing Balance SheetParties. If the Seller Parent does deliver Stockholder has delivered to the Company an Objection Notice, the Purchaser Parent Company and the Seller Parent shall Stockholder will use reasonable best efforts to resolve any disagreements as to the computation of the Net Asset Value at Closing or Net Asset Value Post Closing Adjustment, as Working Capital and the case may beIndebtedness Amount, but if they do not obtain a final resolution within thirty sixty (3060) days after the Purchaser Parent Company has received the Objection Notice, the Purchaser Parent Company and the Seller Parent shall Stockholder will jointly retain an independent accounting firm of recognized national standing (the “"Firm”") to resolve any remaining disagreements. In any event, a Net Asset Value Post Closing Adjustment shall be made with respect to such amounts as are not in dispute, as set forth in the Objection Notice. If the Purchaser Parent Company and the Seller Parent Stockholder are unable to agree on the choice of the Firm, then the Purchaser Parent’s auditors Firm will be a "big-five" accounting firm selected by lot (after excluding one firm designated by each of the Company and the Seller Parent’s auditors shall jointly select a “big-four” accounting firm (or a successor) as the FirmStockholder). The Purchaser Parent Company and the Seller Parent shall Stockholder will direct the Firm to render a determination within thirty (30) days after of its retention and the Purchaser ParentCompany, the Seller Parent, Stockholder and their respective agents shall will cooperate with the Firm during its engagement. The Firm shall consider only those items and amounts set forth in the Objection Notice which the Purchaser Parent and the Seller Parent are unable to resolve. The Purchaser Parent and the Seller Parent shall each make written submissions to the Firm promptly (and in any event within twenty (20) days after the Firm’s retention), which submissions shall contain such Party’s computation of the Net Asset Value at Closing and Net Asset Value Post Closing Adjustment and information, arguments, and support for such Party’s position. The Firm shall review such submissions and base its 's determination will be based solely on them. In resolving any disputed item, the 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 smallest value for such item claimed by either party. The Firm’s determination shall be based on the definition definitions of the Net Asset Value, Working Capital and Indebtedness Amount included herein. The determination of the Firm shall will be conclusive and binding upon the Parties. The Purchaser Parent Company and the Seller Parent Stockholder shall each bear 50% of the costs and expenses of the FirmFirm based on the percentage which the portion of the contested amount not awarded to each Party bears to the amount actually contested by such Party. The amount of the Working Capital, as finally determined pursuant to this Section 1.3(b), is referred to herein as the "Actual Working Capital," and the Indebtedness Amount, as finally determined pursuant to this Section 1.3(b), is referred to herein as the "Actual Indebtedness Amount."
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Post-Closing Determination. On the Closing Date, Holding and its auditors shall perform an inventory and such other procedures as are reasonably necessary to be performed on such date in order to enable the Parties to have an accurate and complete Closing Review. Within ten (10) 45 days after the Closing Date, Seller Parent shall deliver to Purchaser Parent true Holding and correct copies its auditors will conduct a review (the "Closing Review") of all financial books and records of the Sellers necessary for Purchaser Parent to prepare a balance sheet of the Business Working Capital as of the open of business on the Closing Date for purposes and will prepare and deliver to the Purchaser a computation of calculating the Net Asset Value amount of Working Capital (the "Draft Balance Sheet") as of the Closing Date open of business on September 1, 1996 (the “Net Asset Value at Closing”"Effective Time"). Within forty (40) days after receipt of such materials from the Seller ParentThe Purchaser and its auditors will cooperate fully with Holding and its auditors, and Holding and its auditors will cooperate fully with the Purchaser Parent and its auditors, in connection with the Closing Review (including, without limitation, making all relevant information available for review and making all relevant personnel available for discussions). Holding and its auditors shall prepare a balance sheet of give the Business as of the Closing Date (the “Closing Balance Sheet”) consistent with the manner of computation of the Base Net Asset Value and in conformance with GAAP for the purposes of determining the Net Asset Value at Closing and any resulting adjustments to the Purchase Price pursuant to Section 3.3(a)(ii) (the “Net Asset Value Post Closing Adjustment”); provided, that, the Parties acknowledge and agree that, for purposes of determining the Net Asset Value at Closing, the Parties shall disregard any increase in the accounts receivable of the Sellers between January 31, 2005 and the Closing Date resulting from a decrease in the amount of receivables sold by the Sellers between January 31, 2005 and the Closing Date. The Purchaser Parent and its auditors an opportunity to observe the Closing Review and shall make available to the Seller Parent and its auditors such Persons all records and work papers used in preparing the Closing Draft Balance Sheet and the Net Asset Value Post Closing AdjustmentSheet. If the Seller Parent disagrees The Purchaser shall be deemed for all purposes hereof to have agreed with the computation of any Working Capital as of the Net Asset Value at Closing reflected Effective Time set forth on the Closing Draft Balance Sheet or (and such amount will be conclusive and binding upon the Net Asset Value Post Closing Adjustment, Parties) unless the Seller Parent mayPurchaser, within fifteen (15) 20 days after receipt of the Closing Draft Balance Sheet, deliver delivers a notice (an “"Objection Notice”") to the Purchaser Parent Holding setting forth the Seller Parent’s Purchaser's calculation of such Net Asset Value at Closing or such Net Asset Value Post Closing Adjustmentthe disputed amount(s). If the Seller Parent does not deliver an Objection Notice within such fifteen (15) day period, then the Net Asset Value at Closing Holding and Net Asset Value Post Closing Adjustment shall be deemed finally determined to be as set forth on the Closing Balance Sheet. If the Seller Parent does deliver an Objection Notice, the Purchaser Parent and the Seller Parent shall will use reasonable best efforts to resolve any disagreements as to the computation of the Net Asset Value at Closing or Net Asset Value Post Closing Adjustment, as the case may besuch computations, but if they do not obtain a final resolution within thirty (30) 20 days after the Purchaser Parent Holding has received the Objection Notice, Holding and the Purchaser Parent and the Seller Parent shall will jointly retain an independent accounting firm of recognized national standing (the “"Firm”") to resolve any remaining disagreements. In any event, a Net Asset Value Post Closing Adjustment shall be made with respect to such amounts as are not in dispute, as set forth in the Objection Notice. If Holding and the Purchaser Parent and the Seller Parent are unable to agree on the choice of the Firm, then the Firm will be a "big-six" accounting firm selected by lot (after excluding one firm designated by each of Holding and the Purchaser). Holding and the Purchaser Parent’s auditors and the Seller Parent’s auditors shall jointly select a “big-four” accounting firm (or a successor) as the Firm. The Purchaser Parent and the Seller Parent shall direct the Firm to render a determination within thirty (30) 60 days after of its retention retention, and the Purchaser Parent, the Seller Parent, Parties and their respective agents employees shall cooperate with the Firm during its engagement. The Firm shall consider only those items and amounts in the Draft Balance Sheet set forth in the Objection Notice which Holding and the Purchaser Parent and the Seller Parent are unable to resolve. The Purchaser Parent and the Seller Parent shall each make written submissions to the Firm promptly (and in any event within twenty (20) days after the Firm’s retention), which submissions shall contain such Party’s computation of the Net Asset Value at Closing and Net Asset Value Post Closing Adjustment and information, arguments, and support for such Party’s position. The Firm shall review such submissions and base its determination solely on them. In resolving any disputed item, the 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 smallest value for such item claimed by either party. The Firm’s 's determination shall be based on the definition of the Net Asset Value, Working Capital included herein. The determination of the Firm shall will be conclusive and binding upon the Parties. The Purchaser Parent and the Seller Parent Parties shall each bear 50% of the costs and expenses of the FirmFirm based on the percentage which the portion of the contested amount not awarded to each Party bears to the amount actually contested by such Party. The amount of Working Capital as of the Effective Time, as finally determined pursuant to this Section 1D, is referred to herein as "Actual Working Capital."
Appears in 1 contract
Samples: Recapitalization Agreement (Living Centers of America Inc)
Post-Closing Determination. Within ten As promptly as practicable, but in no -------------------------- event later than ninety (1090) days after the Closing Date, Seller Parent shall deliver to Purchaser Parent true the Sellers and correct copies of all financial books and records their auditors will conduct a review of the Sellers necessary for Purchaser Parent to Businesses and prepare a combined and consolidated balance sheet with respect thereto (the "Closing Balance Sheet") --------------------- and a determination of the Business Net Asset Value, the Deduction Amount, the Tax Amount and the Net Income Amount, each as of the close of business on the day before the Closing Date for purposes and, at their expense, will prepare and deliver to the Purchaser, a computation of calculating the Net Asset Value Value, the Deduction Amount, the Tax Amount and the Net Income Amount as of the close of business on the day before the Closing Date (the “Net Asset Value at Closing”"Draft Computations"). Within forty (40) days after receipt of such materials from The Purchaser will pay, or ------------------ reimburse the Seller ParentSellers for, the Purchaser Parent and its auditors shall prepare a balance sheet reasonable expenses of Xxxxxx Xxxxxxxx incurred by the Business as Sellers in connection with the preparation of the Closing Date (the “Closing Balance Sheet”) consistent with the manner of computation of the Base Net Asset Value and in conformance with GAAP for the purposes of determining the Net Asset Value at Closing and any resulting adjustments to the Purchase Price pursuant to Section 3.3(a)(ii) (the “Net Asset Value Post Closing Adjustment”); provided, that, the Parties acknowledge and agree that, for purposes of determining the Net Asset Value at Closing, the Parties shall disregard any increase in the accounts receivable of the Sellers between January 31, 2005 and the Closing Date resulting from a decrease in the amount of receivables sold by the Sellers between January 31, 2005 and the Closing Date. The Purchaser Parent Sellers and its their auditors shall will make available to the Seller Parent Purchaser and its auditors all records and work papers used in preparing the Closing Balance Sheet and the Net Asset Value Post Closing AdjustmentDraft Computations. If the Seller Parent Purchaser disagrees with the computation of any Sellers' determination of the Net Asset Value at Closing reflected on Value, the Closing Balance Sheet or Deduction Amount, the Tax Amount and/or the Net Asset Value Post Closing AdjustmentIncome Amount reflected in the Draft Computations, the Seller Parent may, within fifteen Purchaser shall notify Xxxxx Xxxxxxxx (15the "Current Owner Representative") days after receipt in writing of the Closing Balance Sheet, deliver a such disagreement (such ---------------------------- notice (an “Objection Notice”) to the Purchaser Parent setting forth the Seller Parent’s calculation of basis for such Net Asset Value at Closing or such Net Asset Value Post Closing Adjustment. If the Seller Parent does not deliver an Objection Notice within such fifteen (15disagreement in reasonable detail) day period, then the Net Asset Value at Closing and Net Asset Value Post Closing Adjustment shall be deemed finally determined to be as set forth on the Closing Balance Sheet. If the Seller Parent does deliver an Objection Notice, the Purchaser Parent and the Seller Parent shall use reasonable best efforts to resolve any disagreements as to the computation of the Net Asset Value at Closing or Net Asset Value Post Closing Adjustment, as the case may be, but if they do not obtain a final resolution within thirty (30) days after the Purchaser Parent has received Sellers' delivery of the Objection Notice, Draft Computations to the Purchaser. The Current Owner Representative and the Purchaser Parent and the Seller Parent thereafter shall jointly retain an independent accounting firm of recognized standing (the “Firm”) negotiate in good faith to resolve any remaining such disagreements. In any eventIf there is an amount as to which the Current Owner Representative and the Purchaser are able to agree, a Net Asset Value Post Closing Adjustment such amount shall be made with respect paid to such amounts as are not in dispute, as set forth in the Objection Noticeappropriate party pursuant to Section ------- 1.03 (d) below. If the Purchaser Parent Current Owner Representative and the Seller Parent Purchaser are -------- unable to agree on the choice of the Firm, then the Purchaser Parent’s auditors and the Seller Parent’s auditors shall jointly select a “big-four” accounting firm (or a successor) as the Firm. The Purchaser Parent and the Seller Parent shall direct the Firm to render a determination resolve any disagreements about remaining amounts within thirty (30) days after its retention the Purchaser's delivery of his notice of disagreement to the Current Owner Representative, the Current Owner Representative and the Purchaser Parent, shall submit the Seller Parent, dispute to a "Big Five" public accounting firm (or any of their -------- respective successors) (the "Auditor") for resolution; provided that if the ------- -------- Current Owner Representative and their respective agents shall cooperate with the Firm during its engagement. The Firm shall consider only those items and amounts set forth in the Objection Notice which the Purchaser Parent and the Seller Parent are unable to resolveagree upon an Auditor, the Auditor shall be a "Big Five" public accounting firm (or any of -------- their respective successors) selected by lot (after the Current Owner Representative and the Purchaser each exclude one such accounting firm). The Purchaser Parent and the Seller Parent shall each make written submissions to the Firm promptly (and in any event within twenty (20) days after the Firm’s retention), which submissions shall contain such Party’s computation selection of the Net Asset Value at Closing and Net Asset Value Post Closing Adjustment and information, arguments, and support for such Party’s position. The Firm shall review such submissions and base its determination solely on them. In resolving any disputed item, the 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 smallest value for such item claimed by either party. The Firm’s determination Auditor shall be based on the definition of the Net Asset Valueconclusive, included herein. The determination of the Firm shall be conclusive final, binding and binding upon non-appealable by the Parties. The Purchaser Parent and the Seller Parent shall each bear 50% of the costs and expenses of the Firm.
Appears in 1 contract
Post-Closing Determination. Within ten As promptly as possible following the Closing, but in any event within ninety (1090) days after the Closing Date, Seller Parent the Buyer shall prepare and deliver to Purchaser Parent true and correct copies of all financial books and records the Seller a reasonably detailed statement setting forth (i) the Buyer’s good faith determinations of the Sellers necessary for Purchaser Parent to prepare a balance sheet Cash Amount, the Seller Transaction Expenses, the Indebtedness Amount and the Net Working Capital Amount, and (ii) the Buyer’s calculation of the Business as of the Closing Date for purposes of calculating the Net Asset Value as of the Closing Date Purchase Price (collectively, the “Net Asset Value at ClosingDraft Computation”). Within forty If the Buyer does not deliver the Draft Computation to the Seller within ninety (4090) days after receipt the Closing Date, then at the election of the Seller, the Seller may (i) deliver the Draft Computation to the Buyer within forty-five (45) days following the expiration of the initial ninety (90) day period or (ii) deem the Estimated Purchase Price and the components of such materials from the Seller Parent, the Purchaser Parent and its auditors shall prepare a balance sheet of the Business as of the Closing Date (the “Closing Balance Sheet”) consistent with the manner of computation of the Base Net Asset Value and in conformance with GAAP for the purposes of determining the Net Asset Value at Closing and any resulting adjustments Estimated Purchase Price to be the Purchase Price pursuant and the components of such Purchase Price hereunder. The party which delivers the Draft Computation is referred to Section 3.3(a)(ii) (herein as the “Net Asset Value Post Closing Adjustment”); providedDelivering Party.” The Draft Computation, that, the Parties acknowledge and agree that, for purposes of determining the Net Asset Value at Closing, the Parties shall disregard any increase in the accounts receivable each of the Sellers between January 31elements thereof, 2005 shall be prepared in accordance with the Accounting Principles and the Closing Date resulting from a decrease in the amount of receivables sold by the Sellers between January 31, 2005 and the Closing Datedefinitions within this Agreement. The Purchaser Parent and its auditors shall Buyer will make available to the Seller Parent and its auditors advisors all personnel, advisors, records and work papers used in preparing or otherwise related to the Closing Balance Sheet and the Net Asset Value Post Closing AdjustmentDraft Computation. If the Seller Parent disagrees with or the computation of Buyer, as applicable (the “Receiving Party”), objects to any aspect of the Net Asset Value at Closing reflected on the Closing Balance Sheet or the Net Asset Value Post Closing AdjustmentDraft Computation, the Seller Parent Receiving Party may, within fifteen (15) 45 days after receipt of the Closing Balance SheetDraft Computation, deliver a notice (an “Objection Notice”) to the Purchaser Parent Delivering Party setting forth the Receiving Party’s determination of the Cash Amount, the Indebtedness Amount, the Seller ParentTransaction Expenses and/or the Net Working Capital Amount and Receiving Party’s calculation of such the Purchase Price. Any Objection Notice shall (i) specify in reasonable detail the nature of any disagreement so asserted and (ii) only include disagreements based on mathematical errors or based on the Cash Amount, the Indebtedness Amount, the Seller Transaction Expenses or the Net Asset Value at Closing Working Capital Amount and Receiving Party’s calculation of the Purchase Price or such Net Asset Value Post Closing Adjustmentthe resulting calculation of the Purchase Price not being calculated in accordance with this Agreement. If the Seller Parent Receiving Party does not deliver an Objection Notice to the Delivering Party within such fifteen forty-five (1545) day perioddays after receipt of the Draft Computation, then the Net Asset Value at Closing parties hereto will be deemed to have agreed to the Draft Computation and Net Asset Value Post Closing Adjustment the components of such Draft Computation shall be deemed to be finally determined to be as set forth on the Closing Balance Sheettherein and be final and binding upon Buyer and Seller. If the Seller Parent does deliver an Objection Notice, the Purchaser Parent The Buyer and the Seller Parent shall use reasonable best efforts to resolve any disagreements as to the computation of Draft Computation and the Net Asset Value at Closing or Net Asset Value Post Closing Adjustment, as the case may beObjection Notice, but if they do not obtain a final resolution within thirty sixty (3060) days after the Purchaser Parent Receiving Party has received the Objection Notice, the Purchaser Parent Buyer and the Seller Parent shall jointly retain an independent accounting firm of recognized standing Gxxxx Xxxxxxxx LLP (the “Firm”) to resolve any remaining disagreements. In any event, a Net Asset Value Post Closing Adjustment shall be made with respect to such amounts as are not in dispute, as set forth in the Objection Notice. If the Purchaser Parent The Buyer and the Seller Parent are unable to agree on the choice of the Firm, then the Purchaser Parent’s auditors and the Seller Parent’s auditors shall jointly select a “big-four” accounting firm (or a successor) as the Firm. The Purchaser Parent and the Seller Parent shall direct the Firm to render a determination within thirty (30) days after its retention and the Purchaser ParentBuyer, the Seller Parent, and their respective agents shall cooperate with the Firm during its engagement. The Firm shall may consider only those items and amounts set forth in the Draft Computation or Objection Notice which the Purchaser Parent Buyer and the Seller Parent are unable to resolve. The Purchaser Parent and the Seller Parent shall each make written submissions to the Firm promptly (and in any event within twenty (20) days after the Firm’s retention), which submissions shall contain such Party’s computation of the Net Asset Value at Closing and Net Asset Value Post Closing Adjustment and information, arguments, and support for such Party’s position. The Firm shall review such submissions and base its determination solely on them. In resolving any disputed item, the 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 smallest value for such item claimed by either party. The Firm’s determination shall be based solely on written submissions or oral presentations by the Buyer and the Seller (i.e., not on independent review) and on the definition of the Net Asset Value, definitions included herein. The determination of the Firm shall be final, conclusive and binding upon the Parties. The Purchaser Parent Buyer and the Seller Parent shall each bear 50% and enforceable as an arbitration award in any court of competent jurisdiction under the terms of the Federal Arbitration Act or its state Law equivalents. Until the Firm makes its determination, the costs and expenses of the FirmFirm shall be borne equally by the Buyer, on the one hand, and the Seller, on the other hand; provided that, when the Firm makes its determination, the costs and expenses of the Firm shall be allocated between the Seller, on the one hand, and the Buyer, on the other hand, based upon the percentage which the portion of the contested amount not awarded to each party bears to the amount actually contested by such party. For example, if the Seller claims the Net Working Capital Amount is $1,000 greater than the amount determined by the Buyer, and the Buyer contests only $500 of the amount claimed by the Seller, and if the Firm ultimately resolves the dispute by awarding the Seller $300 of the $500 contested, then the costs and expenses of arbitration will be allocated 60% (i.e., 300 ÷ 500) to the Buyer and 40% (i.e., 200 ÷ 500) to the Seller.
Appears in 1 contract
Post-Closing Determination. Within ten (10) 60 calendar days after the Closing Date, the Seller Parent shall deliver to Purchaser Parent true and correct copies of all financial books and records of the Sellers necessary for Purchaser Parent to prepare a Buyer the consolidated balance sheet of the Business Company and the Retained Subsidiaries as of the Closing Date for purposes close of calculating business on the Net Asset Value as of the Closing Date (the “Net Asset Value at Closing”). Within forty (40) days after receipt of such materials from the Seller Parent, the Purchaser Parent and its auditors shall prepare a balance sheet of the Business as of the Closing Measurement Date (the “Closing Balance Sheet”) ). The Closing Balance Sheet shall be prepared in accordance with GAAP (except for the exclusion of the Transferred Subsidiaries), applied on a basis consistent with (except for the manner of computation exclusion of the Base Transferred Subsidiaries), and following the accounting principles, procedures, policies and methods employed in preparing, the August 31 Balance Sheet. The Closing Balance Sheet shall be accompanied by a schedule setting forth the actual Adjusted Net Asset Value and in conformance with GAAP for Working Capital as of the purposes close of determining business on the Net Asset Value at Closing and any resulting adjustments to the Purchase Price pursuant to Section 3.3(a)(ii) Measurement Date (the “Actual Adjusted Net Asset Value Post Closing AdjustmentWorking Capital”); provided, that. During the preparation of the Closing Balance Sheet by the Seller and the period of any dispute with respect to the application of this Section 3.2, the Parties acknowledge and agree that, for purposes of determining Buyer shall cooperate with the Net Asset Value at Closing, Seller to the Parties shall disregard any increase in the accounts receivable of the Sellers between January 31, 2005 and the Closing Date resulting from a decrease in the amount of receivables sold extent reasonably requested by the Sellers between January 31, 2005 and the Closing Date. The Purchaser Parent and its auditors shall make available Seller to the Seller Parent and its auditors all records and work papers used in preparing prepare the Closing Balance Sheet and the Actual Adjusted Net Asset Value Post Closing AdjustmentWorking Capital Report or to investigate the basis for any dispute. If the Seller Parent disagrees with the computation of any The calculation of the Actual Adjusted Net Asset Value at Closing reflected on Working Capital shall be examined by the Closing Balance Sheet or the Net Asset Value Post Closing AdjustmentBuyer who shall, the Seller Parent may, within fifteen (15) not later than 30 calendar days after receipt of the Closing Balance Sheet, deliver a notice report thereon (an the “Objection NoticeActual Adjusted Net Working Capital Report”) to the Purchaser Parent setting forth Seller. The Actual Adjusted Net Working Capital Report shall list those items included in the Actual Adjusted Net Working Capital, if any, to which the Buyer takes exception and the Buyer’s proposed adjustment. If the Buyer fails to deliver to the Seller Parent’s calculation the Actual Adjusted Net Working Capital Report within 30 calendar days following receipt of such the Closing Balance Sheet, the Buyer shall be deemed to have accepted the Actual Adjusted Net Asset Value at Closing or such Net Asset Value Post Closing AdjustmentWorking Capital for the purposes of any adjustment to the Purchase Price under Section 3.3. If the Seller Parent does not deliver an Objection Notice give the Buyer notice of its objections to the Actual Adjusted Net Working Capital Report within such fifteen (15) day period30 calendar days following receipt of the Actual Adjusted Net Working Capital Report, then the Net Asset Value at Closing and Net Asset Value Post Closing Adjustment Seller shall be deemed finally determined to be as set forth on have accepted the Closing Balance SheetSheet as adjusted by the Buyer in the Actual Adjusted Net Working Capital Report for the purposes of any adjustment to the Purchase Price under Section 3.3. If the Seller Parent does deliver an Objection Noticegives the Buyer notice of its objections to the Actual Adjusted Net Working Capital Report, and if the Purchaser Parent Seller and the Buyer are unable, within 15 calendar days after receipt by the Buyer of the notice from the Seller Parent shall use reasonable best efforts of objections, to resolve any disagreements as the disputed exceptions, such disputed exceptions will be referred to the computation of the Net Asset Value at Closing Deloitte & Touche LLP or Net Asset Value Post Closing Adjustment, as the case may be, but if they do not obtain a final resolution within thirty (30) days after the Purchaser Parent has received the Objection Notice, the Purchaser Parent and the Seller Parent shall jointly retain an independent accounting another firm of recognized standing independent certified public accountants (the “Independent Accounting Firm”) mutually acceptable to resolve any remaining disagreements. In any event, a Net Asset Value Post Closing Adjustment shall be made with respect to such amounts as are not in dispute, as set forth in the Objection Notice. If the Purchaser Parent Seller and the Buyer. The Independent Accounting Firm shall, within 60 days following its selection, deliver to the Seller Parent are unable to agree on the choice of the Firm, then the Purchaser Parent’s auditors and the Seller Parent’s auditors shall jointly select Buyer a “big-four” accounting firm (or a successor) as the Firm. The Purchaser Parent and the Seller Parent shall direct the Firm to render a determination within thirty (30) days after its retention and the Purchaser Parent, the Seller Parentwritten report determining such disputed exceptions, and their respective agents shall cooperate with the Firm during its engagement. The Firm shall consider only those items and amounts set forth in the Objection Notice which the Purchaser Parent and the Seller Parent are unable to resolve. The Purchaser Parent and the Seller Parent shall each make written submissions to the Firm promptly (and in any event within twenty (20) days after the Firm’s retention), which submissions shall contain such Party’s computation of the Net Asset Value at Closing and Net Asset Value Post Closing Adjustment and information, arguments, and support for such Party’s position. The Firm shall review such submissions and base its determination solely on them. In resolving any disputed item, the 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 smallest value for such item claimed by either party. The Firm’s determination shall be based on the definition of the Net Asset Value, included herein. The determination of the Firm shall determinations will be conclusive and binding upon the Partiesparties thereto for the purposes of any adjustment to the Purchase Price under Section 3.3. The Purchaser Parent fees and disbursements of the Independent Accounting Firm acting under this Section 3.2 shall be apportioned between the Buyer and the Seller Parent shall based on the total dollar value of disputed exceptions resolved in favor of each bear 50% such party, with each such party bearing such percentage of the costs fees and expenses disbursements of the Independent Accounting Firm as the aggregate disputed exceptions resolved against that party bears to the total dollar value of all disputed exceptions considered by the Independent Accounting Firm. For the avoidance of doubt, the delivery and timing of receipt of any document sent by the parties pursuant to this Section 3 shall be governed by the provisions set forth in Section 13.5 — “Notices.”
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Post-Closing Determination. Within ten (10) 60 days after the Closing Date, Seller Parent shall deliver to the Purchaser Parent true and correct copies its auditors will conduct a review (the "Closing Review") of all financial books (i) the Sprintank Inventory Amount, (ii) the Sprintank Prepaid Expenses Amount and records of (iii) the Sellers necessary for Purchaser Parent to prepare a balance sheet of the Business Sprintank Fixed Asset Amount, each as of the close of business on the day before the Closing Date for purposes Date, and will prepare and deliver to the Seller a computation of calculating the Net Asset Value such amounts as of the close of business on the day before the Closing Date (the “Net Asset Value at Closing”"Draft Computation"). Within forty (40) days after receipt of such materials from the Seller Parent, the The Purchaser Parent and its auditors shall prepare a balance sheet of will give the Business as of the Closing Date (the “Closing Balance Sheet”) consistent with the manner of computation of the Base Net Asset Value and in conformance with GAAP for the purposes of determining the Net Asset Value at Closing and any resulting adjustments to the Purchase Price pursuant to Section 3.3(a)(ii) (the “Net Asset Value Post Closing Adjustment”); provided, that, the Parties acknowledge and agree that, for purposes of determining the Net Asset Value at Closing, the Parties shall disregard any increase in the accounts receivable of the Sellers between January 31, 2005 and the Closing Date resulting from a decrease in the amount of receivables sold by the Sellers between January 31, 2005 and the Closing Date. The Purchaser Parent Seller and its auditors shall an opportunity to observe the Closing Review and will make available to the Seller Parent and its auditors such Persons all records and work papers used in preparing the Closing Balance Sheet and the Net Asset Value Post Closing AdjustmentDraft Computation. If the Seller Parent disagrees with the computation of any of the Net Sprintank Inventory Amount, Sprintank Prepaid Expenses Amount and Sprintank Fixed Asset Value at Closing Amount reflected on the Closing Balance Sheet or the Net Asset Value Post Closing AdjustmentDraft Computation, the Seller Parent may, within fifteen thirty (1530) days after receipt of the Closing Balance SheetDraft Computation, deliver a notice (an “"Objection Notice”") to the Purchaser Parent setting forth the Seller Parent’s Seller's calculation of such Net the amounts of the Sprintank Inventory Amount, Sprintank Prepaid Expenses Amount and Sprintank Fixed Asset Value at Closing or such Net Asset Value Post Closing Adjustment. If Amount as of the Seller Parent does not deliver an Objection Notice within such fifteen (15) day period, then the Net Asset Value at Closing and Net Asset Value Post Closing Adjustment shall be deemed finally determined to be as set forth close of business on the day before the Closing Balance SheetDate. If the Seller Parent does deliver an Objection Notice, the The Purchaser Parent and the Seller Parent shall will use reasonable best efforts to resolve any disagreements as to the computation of the Net Sprintank Inventory Amount, Sprintank Prepaid Expenses Amount and Sprintank Fixed Asset Value at Closing or Net Asset Value Post Closing Adjustment, as the case may beAmount, but if they do not obtain a final resolution within thirty (30) 30 days after the Purchaser Parent has received the Objection Notice, the Purchaser Parent and the Seller Parent shall will jointly retain an independent accounting firm of recognized national standing (the “"Firm”") to resolve any remaining disagreements. In any event, a Net Asset Value Post Closing Adjustment shall be made with respect to such amounts as are not in dispute, as set forth in the Objection Notice. If the Purchaser Parent and the Seller Parent are unable to agree on the choice of the Firm, then the Firm will be a "big- six" accounting firm selected by lot (after excluding one firm designated by each of the Purchaser Parent’s auditors and the Seller). The Purchaser and the Seller Parent’s auditors shall jointly select a “big-four” accounting firm (or a successor) as the Firm. The Purchaser Parent and the Seller Parent shall will direct the Firm to render a determination within thirty fifteen (3015) days after of its retention and the Purchaser ParentPurchaser, the Seller Parent, and their respective agents shall will cooperate with the Firm during its engagement. The Firm shall will consider only those items and amounts in the Draft Computation set forth in the Objection Notice which the Purchaser Parent and the Seller Parent are unable to resolve. The Purchaser Parent and the Seller Parent shall each make written submissions to the Firm promptly (and in any event within twenty (20) days after the Firm’s retention), which submissions shall contain such Party’s computation of the Net Asset Value at Closing and Net Asset Value Post Closing Adjustment and information, arguments, and support for such Party’s position. The Firm shall review such submissions and base its 's determination solely on them. In resolving any disputed item, the 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 smallest value for such item claimed by either party. The Firm’s determination shall will be based on the definition definitions of the Net Sprintank Inventory Amount, Sprintank Prepaid Expenses Amount and Sprintank Fixed Asset Value, Amount included herein. The determination of the Firm shall will be conclusive and binding upon the PartiesPurchaser and the Seller. The Purchaser Parent and the Seller Parent parties shall each bear 50% of the costs and expenses of the FirmFirm based on the percentage which the portion of the contested amount not awarded to each party bears to the amount actually contested by such party. The amount of the Sprintank Inventory Amount, as finally determined pursuant to this Section 2.3(a), is referred to herein as the "Actual Sprintank Inventory Amount." The amount of the Sprintank Prepaid Expenses Amount, as finally determined pursuant to this Section 2.3(a), is referred to herein as the "Actual Sprintank Prepaid Expenses Amount." The amount of the Sprintank Fixed Asset Amount, as finally determined pursuant to this Section 2.3(a), is referred to herein as the "Actual Sprintank Fixed Asset Amount."
Appears in 1 contract
Post-Closing Determination. Within ten (10) 90 days after the Closing Date, Seller Parent shall deliver to Purchaser Parent true and correct copies of all financial books and records of the Sellers necessary for Purchaser Parent to prepare a balance sheet of the Business as of the Closing Date for purposes of calculating the Net Asset Value as of the Closing Date (the “Net Asset Value at Closing”). Within forty (40) days after receipt of such materials from the Seller Parent, the Purchaser Parent and its auditors shall prepare will conduct a balance sheet review (the "CLOSING REVIEW") of the Business as Cash Amount, the Indebtedness Amount and the Net Working Capital Amount and will prepare and deliver to the Seller a computation of the Closing Date such amounts (the “Closing Balance Sheet”) consistent "DRAFT COMPUTATIONS"). The Draft Computation shall be prepared from the Company's books and records, which in return shall be prepared in accordance with the manner of computation of the Base Net Asset Value and in conformance with GAAP for the purposes of determining the Net Asset Value at Closing and any resulting adjustments to the Purchase Price pursuant to Section 3.3(a)(ii) (the “Net Asset Value Post Closing Adjustment”); providedGAAP, that, the Parties acknowledge and agree that, for purposes of determining the Net Asset Value at Closing, the Parties shall disregard any increase in the accounts receivable of the Sellers between January 31, 2005 and the Closing Date resulting from a decrease in the amount of receivables sold by the Sellers between January 31, 2005 and the Closing Dateconsistently applied. The Purchaser Parent and its auditors shall will make available to the Seller Parent and its auditors all records and work papers used in preparing the Closing Balance Sheet and the Net Asset Value Post Closing AdjustmentDraft Computations. If the Seller Parent disagrees with the computation of any of the Net Asset Value at Closing reflected on Cash Amount, the Closing Balance Sheet Indebtedness Amount or the Net Asset Value Post Closing AdjustmentWorking Capital Amount reflected in the Draft Computations, the Seller Parent may, within fifteen (15) 30 days after receipt of the Closing Balance SheetDraft Computations, deliver a notice (an “Objection Notice”"OBJECTION NOTICE") to the Purchaser Parent setting forth the Seller Parent’s Seller's calculation of such Net Asset Value at Closing or such Net Asset Value Post Closing Adjustment. If the Seller Parent does not deliver an Objection Notice within such fifteen (15) day periodCash Amount, then the Indebtedness Amount and the Net Asset Value at Closing and Net Asset Value Post Closing Adjustment shall be deemed finally determined to be as set forth on the Closing Balance SheetWorking Capital Amount. If the Seller Parent does deliver an Objection Notice, the The Purchaser Parent and the Seller Parent shall will use reasonable best efforts to resolve any disagreements as to the computation of the Cash Amount, the Indebtedness Amount and the Net Asset Value at Closing or Net Asset Value Post Closing Adjustment, as the case may beWorking Capital Amount, but if they do not obtain a final resolution within thirty (30) 30 days after the Purchaser Parent has received the Objection Notice, the Purchaser Parent and the Seller Parent shall will jointly retain an independent accounting firm of recognized national standing (the “Firm”"FIRM") to resolve any remaining disagreements. In any event, a Net Asset Value Post Closing Adjustment shall be made with respect to such amounts as are not in dispute, as set forth in the Objection Notice. If the Purchaser Parent and the Seller Parent are unable to agree on the choice of the Firm, then the Purchaser Parent’s auditors and the Seller Parent’s auditors shall jointly select Firm will be a “"big-four” five" accounting firm (or a successor) as selected by lot (after excluding one firm designated by the FirmPurchaser and one firm designated by the Seller). The Purchaser Parent and the Seller Parent shall will direct the Firm to render a determination within thirty (30) days after its retention and the Purchaser Parent, the Seller Parent, and their respective agents shall cooperate with the Firm during its engagement. The Firm shall consider only those items and amounts set forth in the Objection Notice which the Purchaser Parent and the Seller Parent are unable to resolve. The Purchaser Parent and the Seller Parent shall each make written submissions to the Firm promptly (and in any event within twenty (20) days after the Firm’s retention), which submissions shall contain such Party’s computation of the Net Asset Value at Closing and Net Asset Value Post Closing Adjustment and information, arguments, and support for such Party’s position. The Firm shall review such submissions and base its determination solely on them. In resolving any disputed item, the 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 smallest value for such item claimed by either party. The Firm’s determination shall be based on the definition of the Net Asset Value, included herein. The determination of the Firm shall be conclusive and binding upon the Parties. The Purchaser Parent and the Seller Parent shall each bear 50% of the costs and expenses of the Firm.
Appears in 1 contract
Samples: Stock Purchase Agreement (Magellan Health Services Inc)
Post-Closing Determination. Within ten (10) On the first Business Day following the day that is 90 calendar days after following the Closing Date, Seller Parent the Purchaser shall deliver to Purchaser Parent true and correct copies of all financial books and records of the Sellers necessary for Purchaser Parent to prepare a balance sheet of the Business as of the Closing Date for purposes of calculating the Net Asset Value as of the Closing Date (the “Net Asset Value at Closing”). Within forty (40) days after receipt of such materials from the Seller Parent, the Purchaser Parent and its auditors shall prepare a balance sheet of the Business as of the Closing Date statement (the “Closing Balance SheetStatement”) consistent setting forth the Purchaser’s calculation of Tangible Book Value and Transaction Expenses, prepared in accordance with the manner of computation Accounting Principles, applied on a consistent basis. During the preparation of the Base Net Asset Value Closing Statement by the Purchaser and in conformance the period of any dispute with GAAP for the purposes of determining the Net Asset Value at Closing and any resulting adjustments respect to the Purchase Price pursuant application of this Section 3.01(c), each party hereto shall cooperate with the other parties hereto to Section 3.3(a)(ii) (the “Net Asset Value Post Closing Adjustment”); provided, that, the Parties acknowledge and agree that, for purposes of determining the Net Asset Value at Closing, the Parties shall disregard any increase in the accounts receivable of the Sellers between January 31, 2005 and extent reasonably requested to prepare the Closing Date resulting from a decrease in Statement or to investigate the amount of receivables sold basis for any dispute. The Closing Statement shall be examined by the Sellers between January 31Seller, 2005 and the Closing Date. The Purchaser Parent and its auditors shall make available to and, if the Seller Parent and its auditors all records and work papers used in preparing the Closing Balance Sheet and the Net Asset Value Post Closing Adjustment. If the Seller Parent disagrees with any items or calculations in the computation of any of the Net Asset Value at Closing amounts shown or reflected on in the Closing Balance Sheet or the Net Asset Value Post Closing AdjustmentStatement, the Seller Parent mayshall, within fifteen (15) not later than 45 calendar days after receipt of the Closing Balance SheetStatement, deliver a notice (an “Objection Notice”) to the Purchaser Parent setting forth a reasonably detailed report thereon (the “Closing Statement Report”). The Closing Statement Report shall list those items, if any, with which the Seller Parentdisagrees and the Seller’s calculation of such Net Asset Value at Closing or such Net Asset Value Post Closing Adjustmentproposed adjustment thereto. If the Seller Parent does not fails to deliver an Objection Notice to the Purchaser the Closing Statement Report within such fifteen (15) day period45 calendar days following receipt of the Closing Statement, then the Net Asset Value at Closing and Net Asset Value Post Closing Adjustment Seller shall be deemed finally determined to be as set forth on have accepted the Closing Balance SheetStatement for the purposes of any adjustment to the Closing Consideration under Section 3.01(d). If the Seller Parent does deliver an Objection Noticetimely delivers the Closing Statement Report to the Purchaser, and if the Seller and the Purchaser Parent and are unable, within 15 calendar days after receipt by the Seller Parent shall use reasonable best efforts Purchaser thereof, to resolve any disagreements as the disputed exceptions, such disputed exceptions will be referred to the computation of the Net Asset Value at Closing or Net Asset Value Post Closing Adjustment, as the case may be, but if they do not obtain a final resolution within thirty (30) days after the Purchaser Parent has received the Objection Notice, the Purchaser Parent and the Seller Parent shall jointly retain an independent accounting firm of recognized standing independent certified public accountants (the “Independent Accounting Firm”) mutually acceptable to resolve any remaining disagreements. In any event, a Net Asset Value Post Closing Adjustment shall be made with respect to such amounts as are not in dispute, as set forth in the Objection Notice. If the Purchaser Parent Seller and the Seller Parent are unable Purchaser. The Independent Accounting Firm shall, within 30 calendar days following its selection, deliver to agree on the choice of the Firm, then the Purchaser Parent’s auditors and the Seller Parent’s auditors shall jointly select a “big-four” accounting firm (or a successor) as the Firm. The Purchaser Parent and the Seller Parent shall direct the Firm to render a determination within thirty (30) days after its retention and the Purchaser Parent, the Seller Parenta written report determining such disputed exceptions (and only such disputed exceptions), and their respective agents shall cooperate with the Firm during its engagement. The Firm shall consider only those items and amounts set forth in the Objection Notice which the Purchaser Parent and the Seller Parent are unable to resolve. The Purchaser Parent and the Seller Parent shall each make written submissions to the Firm promptly (and in any event within twenty (20) days after the Firm’s retention), which submissions shall contain such Party’s computation of the Net Asset Value at Closing and Net Asset Value Post Closing Adjustment and information, arguments, and support for such Party’s position. The Firm shall review such submissions and base its determination solely on them. In resolving any disputed item, the 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 smallest value for such item claimed by either party. The Firm’s determination shall be based on the definition of the Net Asset Value, included herein. The determination of the Firm shall determinations will be conclusive and binding upon the Partiesparties thereto for the purposes of any adjustment to the Estimated Adjusted Purchase Price under Section 3.01(d). The Purchaser Parent fees and the Seller Parent shall each bear 50% disbursements of the costs Independent Accounting Firm acting under this Section 3.01 shall be allocated between the Purchaser, on the one hand, and expenses Seller, on the other hand, based upon the total monetary value of disputed exceptions resolved in favor of each such party, with each such party bearing such percentage of the fees and disbursements of the Independent Accounting Firm as the aggregate disputed exceptions resolved against that party bears to the total monetary value of all disputed exceptions considered by the Independent Accounting Firm.
Appears in 1 contract
Post-Closing Determination. (i) Within ten sixty (1060) days after the Closing Date, Seller Parent Purchaser shall conduct a review of the Closing Working Capital and shall deliver to Purchaser Parent true and correct copies of all financial books and records of the Sellers necessary for Purchaser Parent to prepare Agent a balance sheet of the Business as of the Closing Date for purposes of calculating the Net Asset Value as of the Closing Date (the “Net Asset Value at Closing”). Within forty (40) days after receipt of such materials from the Seller Parent, the Purchaser Parent and its auditors shall prepare a balance sheet of the Business as of the Closing Date statement (the “Closing Balance SheetStatement”) consistent with the manner setting forth Purchaser’s calculation of computation of the Base Net Asset Value Closing Working Capital, Closing Indebtedness and in conformance with GAAP for the purposes of determining the Net Asset Value at Closing and any resulting adjustments to the Purchase Price pursuant to Section 3.3(a)(ii) (the “Net Asset Value Post Closing Adjustment”); provided, that, the Parties acknowledge and agree that, for purposes of determining the Net Asset Value at Closing, the Parties shall disregard any increase in the accounts receivable of the Sellers between January 31, 2005 and the Closing Date resulting from a decrease in the amount of receivables sold by the Sellers between January 31, 2005 and the Closing DateCompany Transaction Expenses. The Purchaser Parent shall also make available the back-up calculations from which the Closing Statement was determined. Purchaser will prepare the Closing Working Capital on an accrual basis in accordance with GAAP using the same accounting methods, practices, principles and its auditors policies and procedures, with consistent classifications, judgments and valuation methodologies that were used in the preparation of the Company’s Financial Statements. Purchaser shall also make available to the Seller Parent and Agent all financial records, work papers, or other documentation as Agent may reasonably request in connection with its auditors all records and work papers used in preparing review of the Closing Balance Sheet and the Net Asset Value Post Closing AdjustmentStatement. (ii) If the Seller Parent Agent disagrees with the computation of any of the Net Asset Value at Closing Working Capital, Closing Indebtedness or Company Transaction Expenses as reflected on the Closing Balance Sheet or the Net Asset Value Post Closing AdjustmentStatement, the Seller Parent Agent may, within fifteen thirty (1530) days after receipt of the Closing Balance Sheet, Statement deliver a notice (an “Objection Notice”) to the Purchaser Parent setting forth in reasonable detail the Seller ParentAgent’s calculation of such Net Asset Value at Closing or such Net Asset Value Post Closing Adjustmentobjections. If the Seller Parent does not deliver an Objection Notice is not delivered to Purchaser within such fifteen thirty (1530) day period, then the Net Asset Value at computation of the Closing Working Capital, Closing Indebtedness and Net Asset Value Post Closing Adjustment shall be deemed finally determined to be Company Transaction Expenses as set forth reflected on the Closing Balance SheetStatement 4 shall be conclusive and binding upon Purchaser and the Shareholders. If the Seller Parent does deliver an Objection NoticeNotice is delivered to Purchaser within such thirty (30) day period, the then Purchaser Parent and the Seller Parent Agent shall use reasonable best efforts negotiate in good faith to resolve any disagreements as to the computation of the Net Asset Value at Closing Working Capital, Closing Indebtedness or Net Asset Value Post Closing Adjustment, as the case may beCompany Transaction Expenses, but if they do not obtain a there is no final resolution with respect to any amounts remaining in dispute (the “Disputed Amounts”) within thirty (30) days after the Purchaser Parent has received the Objection Notice, the Purchaser Parent and the Seller Parent Agent shall jointly retain an independent a mutually acceptable and independent, accounting firm of recognized regional or national standing (the “Accounting Firm”) to resolve any remaining disagreements. In any eventdisagreements relating only to the Disputed Amounts and to determine the Final Working Capital Amount, a Net Asset Value Post Closing Adjustment shall be made with respect to such amounts Final Indebtedness Amount and/or the Final Transaction Expenses Amount (each as are not in dispute, as set forth in the Objection Noticedefined below). If the Purchaser Parent and the Seller Parent Agent are unable to agree on the choice of the Firmupon an Accounting Firm within ten (10) days, then the Purchaser Parent’s auditors and the Seller Parent’s auditors Accounting Firm shall jointly select a “big-four” be an accounting firm (or a successor) as of national standing designated by the FirmAmerican Arbitration Association in New York, New York. The Purchaser Parent and the Seller Parent shall direct the Firm to render a determination within thirty (30) days after its retention and the Purchaser Parent, the Seller Parent, and their respective agents shall cooperate with the Firm during its engagement. The Firm shall consider only those items and amounts set forth in the Objection Notice which the Purchaser Parent and the Seller Parent are unable to resolve. The Purchaser Parent and the Seller Parent Agent shall each make written submissions submit all back-up documentation to the Accounting Firm promptly (and in any event within twenty ten (2010) days after the Accounting Firm’s retentionengagement), which submissions documentation shall contain include such Partyparty’s computation of the Net Asset Value at Closing Working Capital, Closing Indebtedness and Net Asset Value Post Closing Adjustment Company Transaction Expenses and information, arguments, arguments and support for such Partyparty’s positionposition with respect to the Disputed Amounts. The Accounting Firm shall review all such submissions documentation and base its determination solely on themsuch documentation in accordance with GAAP and in accordance with the definitions of Closing Working Capital, Closing Indebtedness and Company Transaction Expenses herein. In resolving any disputed itemsuch Disputed Amounts, the Accounting Firm may not assign a value to any item greater than the greatest value used for such item claimed by either party or less than the smallest value for such item claimed by either party. The Firm’s determination shall be based on the definition of the Net Asset Value, included herein. The determination of the Firm Accounting Firm, or any final resolution agreed to in writing by Purchaser and Agent, shall be conclusive and binding upon Purchaser and the PartiesShareholders. The Purchaser Parent Closing Working Capital, Closing Indebtedness and Company Transaction Expenses as finally determined pursuant to this Section 1.5(b) are referred to as the Seller Parent “Final Working Capital Amount,” “Final Indebtedness Amount” and “Final Transaction Expenses Amount”, respectively, herein. (iii) The Shareholders shall each bear 50% pay a portion of the costs fees and expenses of the Accounting Firm equal to 100% multiplied by a fraction, the numerator of which is the amount of Disputed Amounts submitted to the Accounting Firm that are resolved in favor of Purchaser (that being the difference between the Accounting Firm.’s determination and Agent’s determination) and the denominator of which is the total amount of the Disputed Amounts submitted to the Accounting Firm (that being the sum total by which Purchaser’s determination and Agent’s determination differ from the determination of the Accounting Firm). Purchaser shall pay that portion of the fees and expenses of the Accounting Firm that the Shareholders are not required to pay hereunder. (iv) Purchaser shall cause the Company to make its financial records, accounting personnel and advisors available to the Accounting Firm during its review. (c)
Appears in 1 contract
Samples: Iii Stock Purchase Agreement
Post-Closing Determination. Within ten (10) 60 calendar days after the Closing Date, the Seller Parent shall deliver to Purchaser Parent true and correct copies of all financial books and records of the Sellers necessary for Purchaser Parent to prepare a Buyer the consolidated balance sheet of the Business Company and the Retained Subsidiaries as of the close of business on the Measurement Date (the "Closing Date Balance Sheet"). The Closing Balance Sheet shall be prepared in accordance with GAAP (except for purposes the exclusion of calculating the Transferred Subsidiaries), applied on a basis consistent with (except for the exclusion of the Transferred Subsidiaries), and following the accounting principles, procedures, policies and methods employed in preparing, the August 31 Balance Sheet. The Closing Balance Sheet shall be accompanied by a schedule setting forth the actual Adjusted Net Asset Value Working Capital as of the Closing close of business on the Measurement Date (the “"Actual Adjusted Net Asset Value at Closing”Working Capital"). Within forty (40) days after receipt of such materials from During the Seller Parent, the Purchaser Parent and its auditors shall prepare a balance sheet of the Business as preparation of the Closing Date (Balance Sheet by the “Closing Balance Sheet”) consistent Seller and the period of any dispute with respect to the application of this Section 3.2, the Buyer shall cooperate with the manner of computation of the Base Net Asset Value and in conformance with GAAP for the purposes of determining the Net Asset Value at Closing and any resulting adjustments Seller to the Purchase Price pursuant to Section 3.3(a)(ii) (the “Net Asset Value Post Closing Adjustment”); provided, that, the Parties acknowledge and agree that, for purposes of determining the Net Asset Value at Closing, the Parties shall disregard any increase in the accounts receivable of the Sellers between January 31, 2005 and the Closing Date resulting from a decrease in the amount of receivables sold extent reasonably requested by the Sellers between January 31, 2005 and the Closing Date. The Purchaser Parent and its auditors shall make available Seller to the Seller Parent and its auditors all records and work papers used in preparing prepare the Closing Balance Sheet and the Actual Adjusted Net Asset Value Post Closing AdjustmentWorking Capital Report or to investigate the basis for any dispute. If the Seller Parent disagrees with the computation of any The calculation of the Actual Adjusted Net Asset Value at Closing reflected on Working Capital shall be examined by the Closing Balance Sheet or the Net Asset Value Post Closing AdjustmentBuyer who shall, the Seller Parent may, within fifteen (15) not later than 30 calendar days after receipt of the Closing Balance Sheet, deliver a notice report thereon (an “Objection Notice”the "Actual Adjusted Net Working Capital Report") to the Purchaser Parent setting forth Seller. The Actual Adjusted Net Working Capital Report shall list those items included in the Actual Adjusted Net Working Capital, if any, to which the Buyer takes exception and the Buyer's proposed adjustment. If the Buyer fails to deliver to the Seller Parent’s calculation the Actual Adjusted Net Working Capital Report within 30 calendar days following receipt of such the Closing Balance Sheet, the Buyer shall be deemed to have accepted the Actual Adjusted Net Asset Value at Closing or such Net Asset Value Post Closing AdjustmentWorking Capital for the purposes of any adjustment to the Purchase Price under Section 3.3. If the Seller Parent does not deliver an Objection Notice give the Buyer notice of its objections to the Actual Adjusted Net Working Capital Report within such fifteen (15) day period30 calendar days following receipt of the Actual Adjusted Net Working Capital Report, then the Net Asset Value at Closing and Net Asset Value Post Closing Adjustment Seller shall be deemed finally determined to be as set forth on have accepted the Closing Balance SheetSheet as adjusted by the Buyer in the Actual Adjusted Net Working Capital Report for the purposes of any adjustment to the Purchase Price under Section 3.3. If the Seller Parent does deliver an Objection Noticegives the Buyer notice of its objections to the Actual Adjusted Net Working Capital Report, and if the Purchaser Parent Seller and the Buyer are unable, within 15 calendar days after receipt by the Buyer of the notice from the Seller Parent shall use reasonable best efforts of objections, to resolve any disagreements as the disputed exceptions, such disputed exceptions will be referred to Deloitte & Touche LLP or another firm of independent certified public accountants (the "Independent Accounting Firm") mutually acceptable to the computation of the Net Asset Value at Closing or Net Asset Value Post Closing Adjustment, as the case may be, but if they do not obtain a final resolution within thirty (30) days after the Purchaser Parent has received the Objection Notice, the Purchaser Parent Seller and the Buyer. The Independent Accounting Firm shall, within 60 days following its selection, deliver to the Seller Parent shall jointly retain an independent accounting firm of recognized standing (the “Firm”) to resolve any remaining disagreements. In any event, a Net Asset Value Post Closing Adjustment shall be made with respect to such amounts as are not in dispute, as set forth in the Objection Notice. If the Purchaser Parent and the Seller Parent are unable to agree on the choice of the Firm, then the Purchaser Parent’s auditors and the Seller Parent’s auditors shall jointly select Buyer a “big-four” accounting firm (or a successor) as the Firm. The Purchaser Parent and the Seller Parent shall direct the Firm to render a determination within thirty (30) days after its retention and the Purchaser Parent, the Seller Parentwritten report determining such disputed exceptions, and their respective agents shall cooperate with the Firm during its engagement. The Firm shall consider only those items and amounts set forth in the Objection Notice which the Purchaser Parent and the Seller Parent are unable to resolve. The Purchaser Parent and the Seller Parent shall each make written submissions to the Firm promptly (and in any event within twenty (20) days after the Firm’s retention), which submissions shall contain such Party’s computation of the Net Asset Value at Closing and Net Asset Value Post Closing Adjustment and information, arguments, and support for such Party’s position. The Firm shall review such submissions and base its determination solely on them. In resolving any disputed item, the 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 smallest value for such item claimed by either party. The Firm’s determination shall be based on the definition of the Net Asset Value, included herein. The determination of the Firm shall determinations will be conclusive and binding upon the Partiesparties thereto for the purposes of any adjustment to the Purchase Price under Section 3.3. The Purchaser Parent fees and disbursements of the Independent Accounting Firm acting under this Section 3.2 shall be apportioned between the Buyer and the Seller Parent shall based on the total dollar value of disputed exceptions resolved in favor of each bear 50% such party, with each such party bearing such percentage of the costs fees and expenses disbursements of the Independent Accounting Firm as the aggregate disputed exceptions resolved against that party bears to the total dollar value of all disputed exceptions considered by the Independent Accounting Firm. For the avoidance of doubt, the delivery and timing of receipt of any document sent by the parties pursuant to this Section 3 shall be governed by the provisions set forth in Section 13.5 - "Notices."
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Post-Closing Determination. Within ten sixty (1060) days after the Closing DateDate the Company and its auditors will prepare, Seller Parent shall and deliver to Purchaser Parent true and correct copies of all financial books and records of the Sellers necessary for Purchaser Parent to prepare a Stockholder, an audited balance sheet of the Business Company (the "Closing Balance Sheet") as of the Closing Date for purposes which will reflect the Company's determination of calculating the Net Asset Value Working Capital as of the Closing Date and the Indebtedness Amount as of the Closing Date (the “Net Asset Value at Closing”"Draft Computation"). Within forty (40) days after receipt of such materials from the Seller Parent, the Purchaser Parent The Company and its auditors shall prepare a balance sheet of will make available to the Business Stockholder and its auditors all records and work papers necessary to accurately compute the Working Capital and Indebtedness as of the Closing Date (the “Closing Balance Sheet”) consistent with the manner of computation of the Base Net Asset Value and in conformance with GAAP for the purposes of determining the Net Asset Value at Closing and any resulting adjustments to the Purchase Price pursuant to Section 3.3(a)(ii) (the “Net Asset Value Post Closing Adjustment”); providedDate, that, the Parties acknowledge and agree that, for purposes of determining the Net Asset Value at Closing, the Parties shall disregard any increase in the accounts receivable of the Sellers between January 31, 2005 and the Closing Date resulting from a decrease in the amount of receivables sold by the Sellers between January 31, 2005 and the Closing Date. The Purchaser Parent and its auditors shall make available to the Seller Parent and its auditors including without limitation all records and work papers used in preparing the Closing Balance Sheet and the Net Asset Value Post Closing AdjustmentDraft Computation. If the Seller Parent Stockholder disagrees with the computation of any of the Net Asset Value at Closing Working Capital or the Indebtedness Amount reflected on the Closing Balance Sheet or the Net Asset Value Post Closing AdjustmentDraft Computation, the Seller Parent Stockholder may, within fifteen sixty (1560) days after receipt of the Closing Balance SheetDraft Computation, deliver a notice (an “"Objection Notice”") to the Purchaser Parent Company setting forth the Seller Parent’s Stockholder's calculation of such Net Asset Value at the Working Capital as of the Closing or such Net Asset Value Post Date and the Indebtedness Amount as of the Closing AdjustmentDate. If the Seller Parent Stockholder does not deliver an Objection Notice within such fifteen sixty (1560) day perioddays after receipt of the Draft Computation, then the Net Asset Value at Closing and Net Asset Value Post Closing Adjustment Draft Computation shall be deemed finally determined to be as set forth on conclusive and binding upon the Closing Balance SheetParties. If the Seller Parent does deliver Stockholder has delivered to the Company an Objection Notice, the Purchaser Parent Company and the Seller Parent shall Stockholder will use reasonable best commercial efforts to resolve any disagreements as to the computation of the Net Asset Value at Closing or Net Asset Value Post Closing Adjustment, as Working Capital and the case may beIndebtedness Amount, but if they do not obtain a final resolution within thirty sixty (3060) days after the Purchaser Parent Company has received the Objection Notice, the Purchaser Parent Company and the Seller Parent shall Stockholder will jointly retain an independent accounting firm of recognized national standing (the “"Firm”") to resolve any remaining disagreements. In any event, a Net Asset Value Post Closing Adjustment shall be made with respect to such amounts as are not in dispute, as set forth in the Objection Notice. If the Purchaser Parent Company and the Seller Parent Stockholder are unable to agree on the choice of the Firm, then the Purchaser Parent’s auditors Firm will be a "big-five" accounting firm selected by lot (after excluding one firm designated by each of the Company and the Seller Parent’s auditors shall jointly select a “big-four” accounting firm (or a successor) as the FirmStockholder). The Purchaser Parent Company and the Seller Parent shall Stockholder will direct the Firm to render a determination within thirty (30) days after of its retention and the Purchaser ParentCompany, the Seller Parent, Stockholder and their respective agents shall will cooperate with the Firm during its engagement. The Firm shall consider only those items and amounts set forth in the Objection Notice which the Purchaser Parent and the Seller Parent are unable to resolve. The Purchaser Parent and the Seller Parent shall each make written submissions to the Firm promptly (and in any event within twenty (20) days after the Firm’s retention), which submissions shall contain such Party’s computation of the Net Asset Value at Closing and Net Asset Value Post Closing Adjustment and information, arguments, and support for such Party’s position. The Firm shall review such submissions and base its 's determination will be based solely on them. In resolving any disputed item, the 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 smallest value for such item claimed by either party. The Firm’s determination shall be based on the definition definitions of the Net Asset Value, Working Capital and Indebtedness Amount included herein. The determination of the Firm shall will be conclusive and binding upon the Parties. The Purchaser Parent Company and the Seller Parent Stockholder shall each bear 50% of the costs and expenses of the FirmFirm based on the percentage which the portion of the contested amount not awarded to each Party bears to the amount actually contested by such Party. The amount of the Working Capital, as finally determined pursuant to this Section 1.3(b), is referred to herein as the "Actual Working Capital," and the Indebtedness Amount, as finally determined pursuant to this Section 1.3(b), is referred to herein as the "Actual Indebtedness Amount."
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Post-Closing Determination. Within ten (10) 90 calendar days after the Closing Date, the Seller Parent shall deliver to Purchaser Parent true and correct copies of all financial books and records of the Sellers necessary for Purchaser Parent to prepare a Buyer the balance sheet of the Business Company as of the Closing Date for purposes close of calculating the Net Asset Value as of business on the Closing Date (the “Net Asset Value at Closing”). Within forty (40) days after receipt of such materials from the Seller Parent, the Purchaser Parent and its auditors shall prepare a balance sheet of the Business as of the Closing Date (the “"Closing Balance Sheet”) "), prepared in accordance with GAAP, applied on a basis consistent with and following, accounting principles, procedures, policies and methods employed in preparing, the manner of computation June 30 Balance Sheet. The Closing Balance Sheet shall set forth a calculation of the Base actual Adjusted Net Asset Value and in conformance with GAAP for the purposes of determining the Net Asset Value at Closing and any resulting adjustments to the Purchase Price pursuant to Section 3.3(a)(ii) Working Capital (the “Net Asset Value Post Closing Adjustment”); provided, thatsuch actual figure, the Parties acknowledge and agree that, for purposes "Actual Adjusted Net Working Capital"). During the preparation of determining the Net Asset Value at Closing, the Parties shall disregard any increase in the accounts receivable of the Sellers between January 31, 2005 and the Closing Date resulting from a decrease in the amount of receivables sold by the Sellers between January 31, 2005 and the Closing Date. The Purchaser Parent and its auditors shall make available to the Seller Parent and its auditors all records and work papers used in preparing the Closing Balance Sheet by the Seller and the Net Asset Value Post Closing Adjustment. If period of any dispute with respect to the application of this Section 3.1, the Buyer shall cooperate with the Seller Parent disagrees with to the computation of any of extent reasonably requested by the Net Asset Value at Closing reflected on Seller to prepare the Closing Balance Sheet or to investigate the Net Asset Value Post basis for any dispute. Such cooperation will include completion of the normal closing process for preparation of the Closing AdjustmentBalance Sheet by the Company's accounting/finance staff under supervision of the Seller. The Closing Balance Sheet shall be examined by the Buyer, and the Buyer shall, not later than 180 calendar days after the Closing Date, render a report thereon (the "Closing Balance Sheet Report"). The Closing Balance Sheet Report shall list those items, if any, to which the Buyer takes exception and the Buyer's proposed adjustment. If the Buyer fails to deliver to the Seller the Closing Balance Sheet Report within 180 calendar days following the Closing Date, the Buyer shall be deemed to have accepted the Closing Balance Sheet for the purposes of any adjustment to the Purchase Price under Section 3.1(c). If the Seller Parent may, does not give the Buyer notice within fifteen (15) 20 calendar days after following receipt of the Closing Balance SheetSheet Report, deliver a notice (an “Objection Notice”) the Seller shall be deemed to have accepted the Closing Balance Sheet as adjusted by the Buyer for the purposes of any adjustment to the Purchaser Parent setting forth the Seller Parent’s calculation of such Net Asset Value at Closing or such Net Asset Value Post Closing AdjustmentPurchase Price under Section 3.1(c). If the Seller Parent does not deliver an Objection Notice within such fifteen (15) day period, then gives the Net Asset Value at Closing and Net Asset Value Post Closing Adjustment shall be deemed finally determined Buyer notice of objections to be as set forth on the Closing Balance Sheet. If Sheet Report, and if the Seller Parent does deliver an Objection Notice, the Purchaser Parent and the Buyer are unable, within 30 calendar days after receipt by the Buyer of the notice from the Seller Parent shall use reasonable best efforts of objections, to resolve any disagreements as the disputed exceptions, such disputed exceptions will be referred to PricewaterhouseCoopers LLP or another firm of independent certified public accountants ("Independent Accounting Firm") mutually acceptable to the computation of the Net Asset Value at Closing or Net Asset Value Post Closing Adjustment, as the case may be, but if they do not obtain a final resolution within thirty (30) days after the Purchaser Parent has received the Objection Notice, the Purchaser Parent Seller and the Buyer. The Independent Accounting Firm shall, within 60 calendar days following its selection, deliver to the Seller Parent shall jointly retain an independent accounting firm of recognized standing (the “Firm”) to resolve any remaining disagreements. In any event, a Net Asset Value Post Closing Adjustment shall be made with respect to such amounts as are not in dispute, as set forth in the Objection Notice. If the Purchaser Parent and the Seller Parent are unable to agree on the choice of the Firm, then the Purchaser Parent’s auditors Buyer a written report determining such disputed exceptions (and the Seller Parent’s auditors shall jointly select a “big-four” accounting firm (or a successor) as the Firm. The Purchaser Parent and the Seller Parent shall direct the Firm to render a determination within thirty (30) days after its retention and the Purchaser Parent, the Seller Parentonly such disputed exceptions), and their respective agents shall cooperate with the Firm during its engagement. The Firm shall consider only those items and amounts set forth in the Objection Notice which the Purchaser Parent and the Seller Parent are unable to resolve. The Purchaser Parent and the Seller Parent shall each make written submissions to the Firm promptly (and in any event within twenty (20) days after the Firm’s retention), which submissions shall contain such Party’s computation of the Net Asset Value at Closing and Net Asset Value Post Closing Adjustment and information, arguments, and support for such Party’s position. The Firm shall review such submissions and base its determination solely on them. In resolving any disputed item, the 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 smallest value for such item claimed by either party. The Firm’s determination shall be based on the definition of the Net Asset Value, included herein. The determination of the Firm shall determinations will be conclusive and binding upon the Partiesparties thereto for the purposes of any adjustment to the Purchase Price under Section 3.1(c), provided that during the period prior to delivery of such written report, either party may deliver to the Independent Accounting Firm, for its consideration, any working papers or other documentation or make such presentation as such party may deem relevant for the Independent Accounting Firm's determination. The Purchaser Parent fees and disbursements of the Independent Accounting Firm acting under this Section 3.1(b) shall be shared equally by the Buyer and the Seller Parent shall each bear 50% of the costs and expenses of the FirmSeller.
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Post-Closing Determination. Within ten As promptly as possible following the Closing Date, but in any event within ninety (1090) days after the Closing Date, Seller Parent the Buyer shall prepare and deliver to Purchaser Parent true and correct copies of all financial books and records the Seller a reasonably detailed statement setting forth (i) the Buyer’s good faith determinations of the Sellers necessary for Purchaser Parent to prepare a balance sheet Cash Amount, the Net Working Capital Amount, the Indebtedness Amount, the Seller Transaction Expenses, the Target Cash Amount and the Retained Earnings and (ii) the Buyer’s calculation of the Business as of the Closing Date for purposes of calculating the Net Asset Value as of the Closing Date Purchase Price (collectively, the “Net Asset Value at ClosingDraft Computation”). Within forty (40) days after receipt of such materials from The Draft Computation shall be prepared in accordance with the Seller Parent, the Purchaser Parent Accounting Principles and its auditors shall prepare in a balance sheet of the Business as of the Closing Date (the “Closing Balance Sheet”) form and format consistent with the manner of computation of the Base Net Asset Value and in conformance with GAAP for the purposes of determining the Net Asset Value at Sample Closing and any resulting adjustments to the Purchase Price pursuant to Section 3.3(a)(ii) (the “Net Asset Value Post Closing Adjustment”); provided, that, the Parties acknowledge and agree that, for purposes of determining the Net Asset Value at Closing, the Parties shall disregard any increase in the accounts receivable of the Sellers between January 31, 2005 and the Closing Date resulting from a decrease in the amount of receivables sold by the Sellers between January 31, 2005 and the Closing DateStatement. The Purchaser Parent and its auditors shall Buyer will make available to the Seller Parent and its auditors all records and work papers advisors reasonable supporting underlying documentation used in preparing the Closing Balance Sheet and preparation of the Net Asset Value Post Closing AdjustmentDraft Computation (including work papers, subject to the execution of customary access letters). If the Seller Parent disagrees with the computation of any aspect of the Net Asset Value at Closing reflected on the Closing Balance Sheet or the Net Asset Value Post Closing AdjustmentDraft Computation, the Seller Parent may, within fifteen thirty (1530) days after receipt of the Closing Balance SheetDraft Computation, deliver a reasonably detailed notice (an “Objection Notice”) to the Purchaser Parent Buyer setting forth the Seller’s determination of the Cash Amount, Net Working Capital Amount, the Indebtedness Amount, the Seller ParentTransaction Expenses, the Target Cash Amount and the Retained Earnings, and the Seller’s calculation of such Net Asset Value at Closing or such Net Asset Value Post Closing Adjustmentthe Purchase Price. If the Seller Parent does not deliver an Objection Notice to the Buyer within such fifteen thirty (1530) day perioddays after receipt of the Draft Computation, then the Net Asset Value at Closing parties hereto will be deemed to have agreed to the Draft Computation and Net Asset Value Post Closing Adjustment the components of such Draft Computation shall be deemed to be finally determined to be as set forth on the Closing Balance Sheettherein. If the Seller Parent does deliver an Objection Notice, the Purchaser Parent The Buyer and the Seller Parent shall use commercially reasonable best efforts to resolve any disagreements as to the computation of Draft Computation and the Net Asset Value at Closing or Net Asset Value Post Closing Adjustment, as the case may beObjection Notice, but if they do not obtain a final resolution within thirty (30) days after the Purchaser Parent Buyer has received the Objection Notice, the Purchaser Parent Buyer and the Seller Parent shall jointly retain an independent Xxxxx Xxxxxxxx LLP or another nationally recognized accounting firm of recognized standing mutually agreed to by the parties (the “Firm”) to resolve any remaining disagreements. In any event, a Net Asset Value Post Closing Adjustment shall be made with respect to such amounts as are not in dispute, as set forth in the Objection Notice. If the Purchaser Parent The Buyer and the Seller Parent are unable to agree on the choice of the Firm, then the Purchaser Parent’s auditors and the Seller Parent’s auditors shall jointly select a “big-four” accounting firm (or a successor) as the Firm. The Purchaser Parent and the Seller Parent shall direct the Firm to render a determination within thirty (30) days after its retention retention, and the Purchaser ParentBuyer, the Seller Parent, and their respective agents shall cooperate in good faith with the Firm during its engagement. The Firm shall may consider only those items and amounts set forth in the Draft Computation or Objection Notice which the Purchaser Parent Buyer and the Seller Parent are unable to resolve. The Purchaser Parent resolve and the Seller Parent shall each make written submissions to the Firm promptly (act as an expert and in any event within twenty (20) days after the Firm’s retention), which submissions shall contain such Party’s computation of the Net Asset Value at Closing and Net Asset Value Post Closing Adjustment and information, arguments, and support for such Party’s position. The Firm shall review such submissions and base its determination solely on themnot as an arbiter. In resolving any disputed item, the 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 smallest value for such item claimed by either party. The Firm’s determination shall be based solely on written submissions or oral presentations (provided that there shall be no ex parte communications) by the Buyer and the Seller (i.e., not on independent review) and on the definition of the Net Asset Value, definitions included herein. The Seller and the Buyer shall give each other copies of any written submissions at the same time as they are submitted to the Firm. The determination of the Firm shall be conclusive and binding upon the Parties. The Purchaser Parent Buyer and the Seller Parent shall each bear 50% of Seller. Until the Firm makes its determination, the costs and expenses of the FirmFirm shall be borne equally by the Buyer, on the one hand, and the Seller, on the other hand; provided that, when the Firm makes its determination, the costs and expenses of the Firm shall be allocated between the Seller, on the one hand, and the Buyer, on the other hand, based upon the percentage which the portion of the contested amount not awarded to each party bears to the amount actually contested by such party. For example, if the Seller claims the Net Working Capital Amount is $1,000 greater than the amount determined by the Buyer, and the Buyer contests only $500 of the amount claimed by the Seller, and if the Firm ultimately resolves the dispute by awarding the Seller $300 of the $500 contested, then the costs and expenses of arbitration will be allocated 60% (i.e., 300 ÷ 500) to the Buyer and 40% (i.e., 200 ÷ 500) to the Seller.
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Post-Closing Determination. Within ten (10) 20 days after the Closing Date, Seller Parent shall deliver to Purchaser Parent true Buyer shall, in good faith and correct copies of all financial books and records of the Sellers necessary for Purchaser Parent to in accordance with GAAP, prepare a final balance sheet (the "Closing Balance Sheet") of the Business Sellers as of the open of business on the Closing Date for purposes of calculating on a reasonable basis using the Net Asset Value as then best available financial information. The Closing Balance Sheet shall be prepared on a basis consistent with the Prior Balance Sheets and the Estimated Closing Balance Sheet, and shall, among other things, state Accounts Receivable, Inventory and Pre-Paid Expenses ("Final Accounts Receivable," "Final Inventory" and "Final Pre-Paid Expenses" respectively, and collectively, the "Closing Date Balances"). Buyer shall give Sellers and their representatives a full and complete opportunity to observe and participate in the preparation of the Closing Date (the “Net Asset Value at Closing”). Within forty (40) days after receipt of such materials from the Seller Parent, the Purchaser Parent and its auditors shall prepare a balance sheet of the Business as of the Closing Date (the “Closing Balance Sheet”) consistent with the manner of computation of the Base Net Asset Value , and in conformance with GAAP for the purposes of determining the Net Asset Value at Closing and any resulting adjustments to the Purchase Price pursuant to Section 3.3(a)(ii) (the “Net Asset Value Post Closing Adjustment”); provided, that, the Parties acknowledge and agree that, for purposes of determining the Net Asset Value at Closing, the Parties shall disregard any increase in the accounts receivable of the Sellers between January 31, 2005 and the Closing Date resulting from a decrease in the amount of receivables sold by the Sellers between January 31, 2005 and the Closing Date. The Purchaser Parent and its auditors shall make available to the Seller Parent and its auditors Sellers all records and work papers used in preparing the Closing Balance Sheet and the Net Asset Value Post Closing AdjustmentSheet. If the Seller Parent disagrees with the computation of any of the Net Asset Value at Closing reflected on Sellers believe that the Closing Balance Sheet was not prepared in accordance with GAAP and consistent with the Prior Balance Sheets or the Net Asset Value Post Closing Adjustmentcontains one or more manifest errors, the Seller Parent then Sellers may, within fifteen (15) days after receipt of the Closing Balance Sheet, deliver a notice (an “"Objection Notice”") to the Purchaser Parent Buyer setting forth in reasonable detail all disputed items and the Seller Parent’s amounts thereof in Sellers calculation of such Net Asset Value at Closing or such Net Asset Value Post Closing Adjustmentthe disputed amount(s). If the Seller Parent does not deliver an Objection Notice within such fifteen (15) day period, then the Net Asset Value at Closing and Net Asset Value Post Closing Adjustment shall be deemed finally determined to be as set forth on the Closing Balance Sheet. If the Seller Parent does deliver an Objection Notice, the Purchaser Parent and the Seller Parent shall The Parties will use reasonable best efforts to resolve resolve, in good faith, any disagreements as to the computation of the Net Asset Value at Closing or Net Asset Value Post Closing Adjustment, as the case may besuch computations, but if they do not obtain a final resolution within thirty (30) days after the Purchaser Parent Buyer has received the Objection Notice, the Purchaser Parent and the Seller Parent shall Parties will jointly retain an independent accounting firm of recognized national or regional standing (the “"Accounting Firm”") to resolve any remaining disagreements. In any event, a Net Asset Value Post Closing Adjustment shall be made with respect to such amounts as are not in dispute, as set forth in the Objection Notice. If the Purchaser Parent and the Seller Parent Parties are unable to agree on the choice of the Accounting Firm, then the Purchaser Parent’s auditors and the Seller Parent’s auditors Accounting Firm shall jointly select be a “"big-four” six" accounting firm selected by lot (or a successor) as the Firmafter excluding one firm designated by Buyer and by Sellers). The Purchaser Parent and Parties shall use their best efforts to cause the Seller Parent shall direct the Accounting Firm to render a determination within thirty (30) days after its retention and the Purchaser Parentresolve all disagreements over such disputed items as soon as practicable, the Seller Parent, Parties and their respective agents employees shall cooperate with the Accounting Firm during its engagement. The Firm shall consider only those items and amounts set forth in the Objection Notice which the Purchaser Parent and the Seller Parent are unable to resolve. The Purchaser Parent and the Seller Parent shall each make written submissions to the Firm promptly (and in any event within twenty (20) days after the Firm’s retention), which submissions shall contain such Party’s computation of the Net Asset Value at Closing and Net Asset Value Post Closing Adjustment and information, arguments, and support for such Party’s position. The Firm shall review such submissions and base its determination solely on them. In resolving any disputed item, the 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 smallest value for such item claimed by either party. The Firm’s determination shall be based on the definition of the Net Asset Value, included herein. The determination of the Accounting Firm shall will be conclusive and binding upon the Parties. The Purchaser Parent and the Seller Parent Parties shall each bear 50% of the costs and expenses of the FirmAccounting Firm based on the percentage which the portion of the contested amount not awarded to each party bears to the amount actually contested by such party. Buyer shall deduct Sellers' obligation under the preceding sentence (up to a maximum of $50,000) from the Closing Date Hold-Back and remit such amounts in satisfaction of such obligation. In preparing the Closing Balance Sheet, Final Inventory shall include the Unsold Brooks Finished Inventory.
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Post-Closing Determination. Within ten (10) 60 days after the Closing Date, Seller Parent shall deliver to the Purchaser Parent true and correct copies of all financial books and records its auditors will conduct a review (the "Closing Review") of the Sellers necessary for Purchaser Parent to prepare a balance sheet of Net Working Capital Amount and the Business Baseline Net Working Capital Amount as of the close of business on the Closing Date for purposes and the Earn-Out Amount and will prepare and deliver to the Sellers a computation of calculating the Net Asset Value Working Capital Amount and the Baseline Net Working Capital Amount as of the close of business on the Closing Date Date, and the Earn-Out Amount (the “Net Asset Value at Closing”"Draft Computations"). Within forty (40) days after receipt of such materials from the Seller Parent, the The Purchaser Parent and its auditors shall prepare a balance sheet of the Business as of the Closing Date (the “Closing Balance Sheet”) consistent with the manner of computation of the Base Net Asset Value and in conformance with GAAP for the purposes of determining the Net Asset Value at Closing and any resulting adjustments to the Purchase Price pursuant to Section 3.3(a)(ii) (the “Net Asset Value Post Closing Adjustment”); provided, that, the Parties acknowledge and agree that, for purposes of determining the Net Asset Value at Closing, the Parties shall disregard any increase in the accounts receivable of the Sellers between January 31, 2005 and the Closing Date resulting from a decrease in the amount of receivables sold by the Sellers between January 31, 2005 and the Closing Date. The Purchaser Parent and its auditors shall will make available to the Seller Parent Sellers and its their auditors all records and work papers used in preparing the Closing Balance Sheet and the Net Asset Value Post Closing AdjustmentDraft Computations. If the Seller Parent disagrees Sellers disagree with the computation of any of the Net Asset Value at Closing Working Capital Amount, the Baseline Net Working Capital Amount or the Earn-Out Amount reflected on the Closing Balance Sheet or the Net Asset Value Post Closing AdjustmentDraft Computations, the Seller Parent Sellers may, within fifteen (15) 30 days after receipt of the Closing Balance SheetDraft Computations, deliver a written notice (an “"Objection Notice”") to the Purchaser Parent setting forth the Seller Parent’s Sellers' calculation of such the Net Asset Value at Working Capital Amount and/or the Baseline Net Working Capital Amount and/or the Earn-Out Amount as of the close of business on the Closing or such Net Asset Value Post Closing AdjustmentDate. If the Seller Parent does Sellers do not deliver an Objection Notice within such fifteen (15) 30 day period, then the Net Asset Value at Closing and Net Asset Value Post Closing Adjustment Draft Computations shall be deemed finally determined to be as set forth on binding and conclusive upon each of the Closing Balance SheetParties. If the Seller Parent does Sellers deliver an the Objection NoticeNotice within such 30 day period, the Purchaser Parent and the Seller Parent shall Sellers will use reasonable best efforts to resolve any disagreements as to the computation of the Net Asset Value at Closing or Net Asset Value Post Closing Adjustment, as the case may beDraft Computations, but if they do not obtain a final resolution within thirty (30) 30 days after the Purchaser Parent has received the Objection Notice, the Purchaser Parent and the Seller Parent shall Sellers will jointly retain an independent accounting firm of recognized national standing (the “"Firm”") to resolve any remaining disagreements. In any event, a Net Asset Value Post Closing Adjustment shall be made with respect to such amounts as are not in dispute, as set forth in the Objection Notice. If the Purchaser Parent and the Seller Parent Sellers are unable to agree on the choice of the Firm, then the Purchaser Parent’s auditors and the Seller Parent’s auditors shall jointly select Firm will be a “"big-four” five" accounting firm selected by lot (or a successor) as after excluding one firm designated by the FirmPurchaser and one firm designated by the Sellers). The Purchaser Parent and the Seller Parent shall Sellers will direct the Firm to render a determination within thirty (30) 30 days after of its retention retention, and the Purchaser Parent, and the Seller Parent, Sellers and their respective agents shall will cooperate with the Firm during its engagement. The Firm shall will consider only those items and amounts in the Draft Computations set forth in the Objection Notice which the Purchaser Parent and the Seller Parent Sellers are unable to resolve. The Purchaser Parent and the Seller Parent shall each make written submissions to the Firm promptly (and in any event within twenty (20) days after the Firm’s retention), which submissions shall contain such Party’s computation of the Net Asset Value at Closing and Net Asset Value Post Closing Adjustment and information, arguments, and support for such Party’s position. The Firm shall review such submissions and base its determination solely on them. In resolving any disputed item, the 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 smallest value for such item claimed by either party. The Firm’s 's determination shall will be based solely on presentations by the Purchaser and the Sellers (i.e., not on independent review) and on the definition definitions of the Net Asset ValueWorking Capital Amount, the Baseline Net Working Capital Amount and the Earn-Out Amount included herein. The determination of the Firm shall will be conclusive and binding upon the PartiesPurchaser and the Sellers. The Purchaser Parent and the Seller Parent Sellers shall each bear 50% of the costs and expenses of the FirmFirm based on the percentage which the portion of the contested amount not awarded to each Party bears to the amount actually contested by such Party. The Net Working Capital Amount and the Baseline Net Working Capital Amount, as determined pursuant to this Section 2.2(a), are referred to herein as the "Actual Net Working Capital Amount" and the "Actual Baseline Net Working Capital Amount," respectively.
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Post-Closing Determination. Within ten sixty (1060) calendar days after the Closing Date, Seller Parent Buyer shall prepare and deliver to Purchaser Parent true and correct copies of all financial books and records of the Sellers necessary for Purchaser Parent to prepare a balance sheet for each of the Business as of the Closing Date for purposes of calculating the Net Asset Value Fastener Subsidiaries as of the Closing Date (the “Net Asset Value at Closing”). Within forty (40) days after receipt of such materials from the Seller Parent, the Purchaser Parent and its auditors shall prepare each a balance sheet of the Business as of the Closing Date (the “Closing Balance Sheet”) ), a computation of Cash and Cash Equivalents and the Working Capital of each of the Fastener Subsidiaries based upon each Closing Balance Sheet in a manner consistent with (i) the manner definitions of computation Cash and Cash Equivalents and Working Capital of each of the Fastener Subsidiaries set forth herein, and (ii) the methodologies, practices and assumptions used in preparing each Base Net Asset Value and Balance Sheet (see Section 4.7(a)). After the delivery by Buyer of the calculations described in conformance with GAAP for this Section 2.3(b) until the purposes final determination of determining the Net Asset Value at Closing and any resulting adjustments to the Purchase Price such amounts pursuant to this Section 3.3(a)(ii) (the “Net Asset Value Post Closing Adjustment”2.3(b); provided, that, the Parties acknowledge and agree that, for purposes of determining the Net Asset Value at Closing, the Parties shall disregard any increase in the accounts receivable of the Sellers between January 31, 2005 and the Closing Date resulting from a decrease in the amount of receivables sold by the Sellers between January 31, 2005 and the Closing Date. The Purchaser Parent and its auditors shall Buyer will make available to the Seller Parent Sellers, during normal business hours and its auditors upon reasonable advance notice, all records and work papers used by Buyer or its agents in preparing the each Closing Balance Sheet Sheet, and the Net Asset Value Post Closing Adjustment. If the Seller Parent disagrees with the its computation of any Cash and Cash Equivalents and Working Capital of each of the Net Asset Value at Closing reflected on the Closing Balance Sheet or the Net Asset Value Post Closing Adjustment, the Seller Parent Fastener Subsidiaries pursuant to this Section 2.3(b). Sellers may, within fifteen thirty (1530) calendar days after receipt of the both Closing Balance SheetSheets, deliver a notice (an “Objection Notice”) to the Purchaser Parent Buyer setting forth the Seller Parent’s in reasonable detail Sellers’ calculation of such Net Asset Value at the Cash and Cash Equivalents and Working Capital of each of the Fastener Subsidiaries as of the Closing or such Net Asset Value Post Closing AdjustmentDate. If the Seller Parent does Sellers do not deliver an Objection Notice within such fifteen thirty (1530) calendar day period, then the Net Asset Value at Buyer’s calculations of Cash and Cash Equivalents and Working Capital of each of Fastener Subsidiaries based upon each Closing and Net Asset Value Post Closing Adjustment Balance Sheet shall be deemed finally determined to be the Actual Closing Cash and Cash Equivalents and the Actual Closing Working Capital of each of the Fastener Subsidiaries (as set forth on the Closing Balance Sheetdefined below). If the Seller Parent does Sellers deliver an Objection NoticeNotice to Buyer, the Purchaser Parent then Buyer and the Seller Parent shall Sellers will use commercially reasonable best efforts to resolve any disagreements disagreement as to the computation of Cash and Cash Equivalents and Working Capital of each of the Net Asset Value at Fastener Subsidiaries as of the Closing or Net Asset Value Post Closing Adjustment, Date as the case may besoon as practicable, but if they do cannot obtain reach a final resolution within thirty (30) calendar days after the Purchaser Parent Buyer has received the Objection Notice, the Purchaser Parent Buyer and the Seller Parent shall Sellers will jointly retain an independent internationally recognized accounting firm of recognized standing acceptable to both Buyer and Sellers (the “Accounting Firm”) to resolve any remaining disagreements). In any event, a Net Asset Value Post Closing Adjustment shall be made with respect to such amounts as are not in dispute, as set forth in the Objection Notice. If the Purchaser Parent Buyer and the Seller Parent are unable to agree on the choice of the Firm, then the Purchaser Parent’s auditors and the Seller Parent’s auditors shall jointly select a “big-four” accounting firm (or a successor) as the Firm. The Purchaser Parent and the Seller Parent shall Sellers will direct the Accounting Firm to render a determination within thirty (30) calendar days after of its retention and the Purchaser Parent, the Seller Parent, Buyer and Sellers and their respective agents shall will cooperate with the Accounting Firm during its engagement. The Accounting Firm shall will consider only those items and amounts set forth in the Objection Notice which the Purchaser Parent that Buyer and the Seller Parent Sellers are unable to resolve. The Purchaser Parent and the Seller Parent shall each make written submissions to the Firm promptly (and in any event within twenty (20) days after the Firm’s retention), which submissions shall contain such Party’s computation of the Net Asset Value at Closing and Net Asset Value Post Closing Adjustment and information, arguments, and support for such Party’s position. The Firm shall review such submissions and base its determination solely on them. In resolving any disputed item, the Accounting 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 smallest value for such item claimed by either party. In rendering its determination, the Accounting Firm shall act as an expert in GAAP and not as an arbitrator. The Accounting Firm’s determination shall will be based on such review as the definition Accounting Firm deems necessary to make its determination, the definitions Cash and Cash Equivalents and Working Capital of each of the Net Asset ValueFastener Subsidiaries set forth in this Agreement and the methodologies, included hereinpractices and assumptions used in preparing each Base Balance Sheet (see Section 4.7(a)). The determination of Cash and Cash Equivalents and Working Capital of each of the Fastener Subsidiaries as of the Closing Date by the Accounting Firm shall be conclusive and binding upon the PartiesBuyer and Sellers. The Purchaser Parent Buyer and the Seller Parent Sellers shall each bear 50% of the costs and expenses of the Firm.Accounting Firm based on the
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Post-Closing Determination. Within ten ninety (1090) calendar days after the Closing Date, Seller Parent shall deliver to Purchaser Parent true and correct copies of all financial books and records the Surviving Corporation will conduct a review (the “Closing Date Review”) of the Sellers necessary for Purchaser Parent to prepare a balance sheet of the Business Working Capital Amount as of the Closing Date for purposes of calculating but prior to the Net Asset Value as consummation of the Closing Date (Contemplated Transactions and will prepare and deliver to the “Net Asset Value at Closing”). Within forty (40) days after receipt of such materials from the Seller Parent, the Purchaser Parent and its auditors shall prepare Sellers’ Representative a balance sheet of the Business as of the Closing Date (the “Closing Date Balance Sheet”) consistent with the manner of and a computation of the Base Net Asset Value and in conformance with GAAP for Working Capital Amount as of the purposes of determining the Net Asset Value at Closing and any resulting adjustments time immediately prior to the Purchase Price pursuant to Section 3.3(a)(ii) Effective Time (the “Net Asset Value Post Closing AdjustmentDate Working Capital Amount”); provided. The Closing Date Working Capital Amount shall be calculated in accordance with the Sample Working Capital Calculation and GAAP, thatusing the policies, conventions, methodologies used by the Parties acknowledge Company in preparing the Audited Financial Statements, as of and agree that, for purposes of determining the Net Asset Value at Closing, the Parties shall disregard any increase in the accounts receivable of the Sellers between January period ended December 31, 2005 and the Closing Date resulting from a decrease in the amount of receivables sold by the Sellers between January 312012, 2005 and the Closing Datesubject to exceptions for customary year-end adjustments. The Purchaser Parent and its auditors shall Surviving Corporation will make available to the Seller Parent and its auditors Sellers’ Representative all records and work papers used in preparing the Closing Date Balance Sheet and the Net Asset Value Post Closing AdjustmentSheet. If the Seller Parent Sellers’ Representative disagrees with the computation of any of the Net Asset Value at Closing Date Working Capital Amount or the items reflected on the Closing Date Balance Sheet or the Net Asset Value Post Closing AdjustmentSheet, the Seller Parent Sellers’ Representative may, within fifteen thirty (1530) calendar days after receipt of the Closing Date Balance Sheet, records and work papers, deliver a notice (an “Objection Notice”) on behalf of the Sellers to the Purchaser Parent Surviving Corporation setting forth the Seller ParentSellers’ Representative’s calculation of such Net Asset Value at the Closing or such Net Asset Value Post Closing AdjustmentDate Working Capital Amount. If the Seller Parent Sellers’ Representative does not deliver an Objection Notice within such fifteen thirty (1530) calendar day period, then the Net Asset Value at Closing and Net Asset Value Post Closing Adjustment Date Working Capital Amount shall be deemed finally determined to be as set forth on the Closing Balance Sheetfinally determined. If the Seller Parent does deliver Sellers’ Representative delivers an Objection NoticeNotice to the Surviving Corporation, the Purchaser Parent Sellers’ Representative and the Seller Parent shall Surviving Corporation will use reasonable best efforts to resolve any disagreements disagreement as to the computation of the Net Asset Value at Closing or Net Asset Value Post Closing Adjustment, Date Working Capital Amount as the case may besoon as practicable, but if they do cannot obtain reach a final resolution within thirty forty-five (3045) calendar days after the Purchaser Parent Surviving Corporation has received the Objection Notice, the Purchaser Parent Surviving Corporation and the Seller Parent shall Sellers’ Representative on behalf of the Sellers will jointly retain an independent accounting a firm of recognized standing to be agreed upon in writing prior to Closing (the “Firm”) to resolve any remaining disagreementstheir disagreement. In any event, a Net Asset Value Post Closing Adjustment shall be made with respect to such amounts as are not in dispute, as set forth in the Objection Notice. If the Purchaser Parent The Surviving Corporation and the Seller Parent are unable to agree on the choice of the Firm, then the Purchaser Parent’s auditors and the Seller Parent’s auditors shall jointly select a “big-four” accounting firm (or a successor) as the Firm. The Purchaser Parent and the Seller Parent shall Sellers’ Representative will direct the Firm to render a determination within thirty sixty (3060) calendar days after of its retention and the Purchaser Parent, Surviving Corporation and the Seller Parent, Sellers’ Representative and their respective agents shall will cooperate with the Firm during its engagement. The Firm shall will consider only those items and amounts in the Closing Date Balance Sheet set forth in the Objection Notice which the Purchaser Parent Surviving Corporation and the Seller Parent Sellers’ Representative are unable to resolve. The Purchaser Parent and the Seller Parent shall each make written submissions to the Firm promptly (and in any event within twenty (20) days after the Firm’s retention), which submissions shall contain such Party’s computation of the Net Asset Value at Closing and Net Asset Value Post Closing Adjustment and information, arguments, and support for such Party’s position. The Firm shall review such submissions and base its determination solely on them. In resolving any disputed item, the 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 smallest value for such item claimed by either party. The Firm’s determination shall will be based on such review as the Firm deems necessary to make its determination, and on the definition of the Net Asset Value, Closing Date Working Capital Amount included herein. The determination of the Closing Date Working Capital Amount by the Firm shall will be conclusive and binding upon the PartiesSurviving Corporation, the Sellers’ Representative and the Sellers. The Purchaser Parent Surviving Corporation and the Seller Parent Sellers shall each bear 50% of the costs and expenses of the Firm based on the percentage which the portion of the contested amount not awarded to each party bears to the amount actually contested by or on behalf of such party, and the Sellers’ Representative (on behalf of the Sellers) and the Surviving Corporation shall each pay one-half of any retainer required by the Firm at the initiation of the engagement, such amount to be reallocated and credited or reimbursed by the other party depending on the final award of the contested amount by the Firm. The Closing Date Working Capital Amount, as finally determined pursuant to this Section 1.8(b), is referred to herein as the “Actual Closing Date Working Capital Amount.”
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Post-Closing Determination. Within ten sixty (1060) calendar days after the Closing Date, Seller Parent Buyer shall prepare and deliver to Purchaser Parent true and correct copies of all financial books and records of the Sellers necessary for Purchaser Parent to prepare Seller a balance sheet of for the Business Company as of the Closing Date for purposes of calculating the Net Asset Value as of the Closing Date (the “Net Asset Value at Closing”). Within forty (40) days after receipt of such materials from the Seller Parent, the Purchaser Parent and its auditors shall prepare a balance sheet of the Business as of the Closing Date Effective Time (the “Closing Balance Sheet”) consistent with the manner of ), a computation of the Cash and Cash Equivalents and the Working Capital of the Company and the Company Subsidiaries based upon such Closing Balance Sheet in a manner consistent with (i) the definitions of Cash and Cash Equivalents and Working Capital set forth herein, and (ii) the methodologies, practices and assumptions used in preparing the Base Net Asset Value Balance Sheet set forth on Schedule I, as applicable and in conformance with (iii) GAAP for the purposes of determining the Net Asset Value at Closing and any resulting adjustments to the Purchase Price pursuant to Section 3.3(a)(ii) (the “Net Asset Value Post Closing Adjustment”); provided, thatthat in the event of any conflict between GAAP and the methodologies, practices and assumptions used in preparing the Base Balance Sheet, the Parties acknowledge methodologies, practices and agree that, for purposes of determining the Net Asset Value at Closing, the Parties assumptions set forth on Schedule I shall disregard any increase in the accounts receivable govern and control) as well as a listing (including amounts) of the Sellers between January 31, 2005 Company Fees and Expenses it determines were unpaid at the Closing Date resulting from a decrease in the amount of receivables sold by the Sellers between January 31, 2005 and the Closing DateEffective Time. The Purchaser Parent and its auditors shall Buyer will make available to the Seller Parent and its auditors all records and work papers used in preparing the Closing Balance Sheet and the Net Asset Value Post Closing Adjustment. If the Seller Parent disagrees with Sheet, the computation of any of the Net Asset Value at Closing reflected on the Cash and Cash Equivalents and Working Capital based upon such Closing Balance Sheet or and its listing (including amounts) of the Net Asset Value Post Closing Adjustment, Company Fees and Expenses unpaid at the Effective Time. Seller Parent may, within fifteen thirty (1530) calendar days after receipt of the Closing Balance Sheet, deliver a notice (an “Objection Notice”) to the Purchaser Parent Buyer setting forth the Seller Parentin reasonable detail Seller’s calculation of such Net Asset Value the Cash and Cash Equivalents and Working Capital of the Company and the Company Subsidiaries as of the Effective Time and Seller’s listing (including amounts) of the Company Fees and Expenses unpaid at Closing or such Net Asset Value Post Closing Adjustmentthe Effective Time. If the Seller Parent does not deliver an Objection Notice within such fifteen thirty (1530) calendar day period, then Buyer’s calculations of the Net Asset Value at Cash and Cash Equivalents and Working Capital based upon the Closing and Net Asset Value Post Closing Adjustment Balance Sheet shall be deemed finally determined to be the Actual Closing Cash and Cash Equivalents and the Actual Closing Working Capital (as set forth on defined below), Buyer’s listing (including amounts) of the Closing Balance SheetCompany Fees and Expenses unpaid at the Effective Time shall be deemed to be the Actual Unpaid Company Fees and Expenses (as defined below). If the Seller Parent does deliver delivers an Objection NoticeNotice to Buyer, the Purchaser Parent then Buyer and the Seller Parent shall will use commercially reasonable best efforts to resolve any disagreements disagreement as to the computation of the Net Asset Value Cash and Cash Equivalents and Working Capital of the Company and the Company Subsidiaries as of the Effective Time and the Company Fees and Expenses unpaid at Closing or Net Asset Value Post Closing Adjustmentthe Effective Time, in each case as the case may besoon as practicable, but if they do can not obtain reach a final resolution within thirty (30) calendar days after the Purchaser Parent Buyer has received the Objection Notice, the Purchaser Parent Buyer and the Seller Parent shall will jointly retain an independent KPMG LLP or, if agreed by Buyer and Seller, another internationally recognized accounting firm of recognized standing comparable stature acceptable to both Buyer and Seller (the “Accounting Firm”) to resolve any remaining disagreements). In any event, a Net Asset Value Post Closing Adjustment shall be made with respect to such amounts as are not in dispute, as set forth in the Objection Notice. If the Purchaser Parent Buyer and the Seller Parent are unable to agree on the choice of the Firm, then the Purchaser Parent’s auditors and the Seller Parent’s auditors shall jointly select a “big-four” accounting firm (or a successor) as the Firm. The Purchaser Parent and the Seller Parent shall will direct the Accounting Firm to render a determination within thirty (30) calendar days after of its retention and the Purchaser Parent, the Buyer and Seller Parent, and their respective agents shall will cooperate with the Accounting Firm during its engagement. The Accounting Firm shall will consider only those items and amounts set forth in the Objection Notice which the Purchaser Parent that Buyer and the Seller Parent are unable to resolve. The Purchaser Parent and the Seller Parent shall each make written submissions to the Firm promptly (and in any event within twenty (20) days after the Firm’s retention), which submissions shall contain such Party’s computation of the Net Asset Value at Closing and Net Asset Value Post Closing Adjustment and information, arguments, and support for such Party’s position. The Firm shall review such submissions and base its determination solely on them. In resolving any disputed item, the Accounting 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 smallest value for such item claimed by either party. In rendering its determination, the Accounting Firm shall act as an expert and not as an arbitrator. The Accounting Firm’s determination shall will be based on such review as the definition Accounting Firm deems necessary to make its determination, the definitions of Cash and Cash Equivalents, Working Capital and Company Fees and Expenses set forth in this Agreement and the Net Asset Valuemethodologies, included hereinpractices and assumptions used in preparing the Base Balance Sheet set forth on Schedule I and the requirements of GAAP (provided, that in the event of any conflict between GAAP and the methodologies, practices and assumptions used in preparing the Base Balance Sheet, the methodologies, practices and assumptions set forth on Schedule I shall govern and control). The determination of the Cash and Cash Equivalents and Working Capital of the Company and the Company Subsidiaries as of the Effective Time by the Accounting Firm, and the calculations by the Accounting Firm of the Company Fees and Expenses unpaid at the Effective Time, shall be conclusive and binding upon the PartiesBuyer and Seller. The Purchaser Parent Buyer and the Seller Parent shall each bear 50% of the costs and expenses of the FirmAccounting Firm based on the percentage which the portion of the contested amount not awarded to each party bears to the amount actually contested by or on behalf of such party. The Cash and Cash Equivalents of the Company and the Company Subsidiaries as of the Effective Time as finally determined pursuant to this Section 2.3(b) is referred to herein as the “Actual Closing Cash and Cash Equivalents.” The Working Capital of the Company and the Company Subsidiaries as of the Effective
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Post-Closing Determination. Within ten (10) 60 days after the Closing Date, Seller Parent shall the Buyer will prepare and deliver to Purchaser Parent true and correct copies of all financial books and records of the Sellers necessary for Purchaser Parent to prepare a balance sheet of the Business as of the Closing Date for purposes of calculating the Net Asset Value as of the Closing Date separate report (the “Net Asset Value at ClosingClosing Adjusted Liabilities Report”). Within forty (40) days after receipt of such materials from setting forth the Seller Parent, the Purchaser Parent and its auditors shall prepare a balance sheet of the Business actual Adjusted Liabilities as of 12:01 a.m. on the Closing Date (the “Closing Balance Sheet”) consistent with the manner of computation of the Base Net Asset Value and in conformance with GAAP for the purposes of determining the Net Asset Value at Closing and any resulting adjustments to the Purchase Price pursuant to Section 3.3(a)(ii) (the “Net Asset Value Post Closing AdjustmentAdjusted Liabilities”); provided, that, the Parties acknowledge and agree that, for purposes of determining the Net Asset Value at Closing, the Parties . The Closing Adjusted Liabilities Report shall disregard any increase be prepared in the accounts receivable of same manner as Schedule 3.3 and following the Sellers between January 31accounting principles, 2005 procedures, policies and the Closing Date resulting from a decrease methods employed in the amount of receivables sold by the Sellers between January 31, 2005 and the Closing Datepreparing such schedule. The Purchaser Parent and its auditors shall make available to the Seller Parent and its auditors all records and work papers used in preparing the Closing Balance Sheet and the Net Asset Value Post Closing Adjustment. If the Seller Parent disagrees with the computation of any of the Net Asset Value at Closing reflected on the Closing Balance Sheet or the Net Asset Value Post Closing AdjustmentSellers shall, the Seller Parent may, within fifteen (15) not later than 30 calendar days after receipt of the Closing Balance SheetAdjusted Liabilities Report, deliver a notice report thereon (an the “Objection NoticeSellers’ Adjusted Liabilities Report”) to the Purchaser Parent setting forth Buyer. The Sellers’ Adjusted Liabilities Report shall list those items included in the Seller Parent’s calculation of such Net Asset Value at Closing or such Net Asset Value Post Closing AdjustmentAdjusted Liabilities Report, if any, to which the Sellers take exception and the Sellers’ proposed adjustment. If the Seller Parent does Sellers fail to deliver to the Buyer the Sellers’ Adjusted Liabilities Report within 30 calendar days following receipt of the Closing Adjusted Liabilities Report or do not deliver an Objection Notice within such fifteen (15) day periodset forth any exceptions, then the Net Asset Value at Closing and Net Asset Value Post Closing Adjustment Sellers shall be deemed finally determined to be as set forth on have accepted the Closing Balance SheetAdjusted Liabilities Report for the purposes of any adjustment to the Purchase Price under Section 3.3(d) and for all other purposes of this Agreement. If the Seller Parent Buyer does deliver an Objection Noticenot give the Sellers notice of its objections to the Sellers’ Adjusted Liabilities Report within 15 calendar days following receipt of the Sellers’ Adjusted Liabilities Report, the Purchaser Parent Buyer shall be deemed to have accepted the Closing Adjusted Liabilities Report as adjusted by the Sellers in the Sellers’ Adjusted Liabilities Report for the purposes of any adjustment to the Purchase Price under Section 3.3(d) and for all other purposes of this Agreement. If the Buyer gives the Sellers timely notice of its objections to the Sellers’ Adjusted Liabilities Report, and if the Buyer and the Seller Parent shall use reasonable best efforts Sellers are unable, within 15 calendar days after receipt by the Sellers of the notice from the Buyer of objections, to resolve any disagreements as the disputed exceptions, such disputed exceptions will be referred to the computation of the Net Asset Value at Closing PricewaterhouseCoopers or Net Asset Value Post Closing Adjustment, as the case may be, but if they do not obtain a final resolution within thirty (30) days after the Purchaser Parent has received the Objection Notice, the Purchaser Parent and the Seller Parent shall jointly retain an independent accounting another firm of recognized standing independent certified public accountants (the “Independent Accounting Firm”) mutually acceptable to resolve any remaining disagreements. In any event, a Net Asset Value Post Closing Adjustment shall be made with respect to such amounts as are not in dispute, as set forth in the Objection Notice. If the Purchaser Parent Buyer and the Seller Parent are unable Sellers. The Independent Accounting Firm shall, within 45 days following its selection, deliver to agree on the choice of the Firm, then the Purchaser Parent’s auditors Buyer and the Seller Parent’s auditors shall jointly select Sellers a “big-four” accounting firm written report determining such disputed exceptions (or a successor) as the Firm. The Purchaser Parent and the Seller Parent shall direct the Firm to render a determination within thirty (30) days after its retention and the Purchaser Parent, the Seller Parentonly such disputed exceptions), and their respective agents shall cooperate with the Firm during its engagement. The Firm shall consider only those items and amounts set forth in the Objection Notice which the Purchaser Parent and the Seller Parent are unable to resolve. The Purchaser Parent and the Seller Parent shall each make written submissions to the Firm promptly (and in any event within twenty (20) days after the Firm’s retention), which submissions shall contain such Party’s computation of the Net Asset Value at Closing and Net Asset Value Post Closing Adjustment and information, arguments, and support for such Party’s position. The Firm shall review such submissions and base its determination solely on them. In resolving any disputed item, the 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 smallest value for such item claimed by either party. The Firm’s determination shall be based on the definition of the Net Asset Value, included herein. The determination of the Firm shall determinations will be conclusive and binding upon the Partiesparties thereto for the purposes of any adjustment to the Purchase Price under Section 3.3(d). The Purchaser Parent fees and disbursements of the Independent Accounting Firm acting under this Section 3.3(c) shall be apportioned between the Sellers and the Seller Parent shall Buyer based on the total dollar value of disputed exceptions resolved in favor of each bear 50% such party, with each such party bearing such percentage of the costs fees and expenses disbursements of the Independent Accounting Firm as the aggregate disputed exceptions resolved against that party bears to the total dollar value of all disputed exceptions considered by the Independent Accounting Firm. For the avoidance of doubt, the delivery and timing of receipt of any document sent by the parties pursuant to this Section 3 shall be governed by the provisions set forth in Section 16.5 — “Notices.”
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Post-Closing Determination. Within ten thirty (1030) days after the Closing Date, Seller Parent the Buyer shall prepare and deliver to Purchaser Parent true and correct copies of all financial books and records of the Sellers necessary for Purchaser Parent to prepare Seller a balance sheet of statement setting forth the Business Net Working Capital as of the Closing Date for purposes open of calculating the Net Asset Value as of business on the Closing Date (the “"Closing Net Asset Value at Closing”Working Capital Statement"). Within forty During the period of any dispute with respect to the application of this Section 3.3, the Buyer shall provide the Seller full access to the books, records, facilities and employees of the Business, and shall cooperate with the Seller to the extent reasonably requested by the Seller to investigate the basis for such dispute. Not later than thirty (4030) calendar days after receipt of such materials from the Closing Net Working Capital Statement, the Seller Parentshall provide the Buyer with a list of those items, if any, to which the Purchaser Parent Seller takes exception and its auditors shall prepare a balance sheet of the Business as Seller's proposed adjustment (the "Proposed Adjustments"). If the Seller fails to deliver to the Buyer the Proposed Adjustments within thirty (30) calendar days following receipt of the Closing Date (Net Working Capital Statement, the “Seller shall be deemed to have accepted the Closing Balance Sheet”) consistent with the manner of computation of the Base Net Asset Value and in conformance with GAAP Working Capital Statement for the purposes of determining the Net Asset Value at Closing and any resulting adjustments to the Purchase Price pursuant to adjustment under Section 3.3(a)(ii3.3(c) (the “Net Asset Value Post Closing Adjustment”); provided, that, the Parties acknowledge and agree that, for purposes of determining the Net Asset Value at Closing, the Parties shall disregard any increase in the accounts receivable of the Sellers between January 31, 2005 and the Closing Date resulting from a decrease in the amount of receivables sold by the Sellers between January 31, 2005 and the Closing Date. The Purchaser Parent and its auditors shall make available to the Seller Parent and its auditors all records and work papers used in preparing the Closing Balance Sheet and the Net Asset Value Post Closing Adjustmenthereof. If the Buyer does not give the Seller Parent disagrees with notice of objections within thirty (30) calendar days following receipt of the computation Proposed Adjustments, the Buyer shall be deemed to have accepted the Proposed Adjustments for the purposes of any of Purchase Price adjustment under Section 3.3(c) hereof. If the Net Asset Value at Closing reflected on the Closing Balance Sheet or the Net Asset Value Post Closing Adjustment, Buyer gives the Seller Parent maynotice of objections to the Proposed Adjustments, and if the Buyer and the Seller are unable, within fifteen (15) calendar days after receipt by the Seller of the Closing Balance Sheetnotice by the Buyer of objections, deliver to resolve the disputed exceptions, such disputed exceptions, together with a notice (an “Objection Notice”) written summary of the present dispute and a good faith proposal as to what the final determination should be, will be referred to a nationally recognized firm of independent certified public accountants mutually acceptable to the Purchaser Parent setting forth the Seller Parent’s calculation of such Net Asset Value at Closing or such Net Asset Value Post Closing Adjustment. If the Seller Parent does not deliver an Objection Notice within such fifteen (15) day period, then the Net Asset Value at Closing and Net Asset Value Post Closing Adjustment shall be deemed finally determined to be as set forth on the Closing Balance Sheet. If the Seller Parent does deliver an Objection Notice, the Purchaser Parent Buyer and the Seller Parent shall use reasonable best efforts to resolve any disagreements as to the computation of the Net Asset Value at Closing or Net Asset Value Post Closing Adjustment, as the case may be, but if they do not obtain a final resolution ("Independent Accounting Firm") within thirty (30) days after thereafter. The Independent Accounting Firm shall, within sixty (60) days following its selection, deliver to the Purchaser Parent has received the Objection Notice, the Purchaser Parent Buyer and the Seller Parent shall jointly retain an independent accounting firm of recognized standing (the “Firm”) to resolve any remaining disagreements. In any event, a Net Asset Value Post Closing Adjustment shall be made with respect to written report determining such amounts as are not in dispute, as set forth in the Objection Notice. If the Purchaser Parent and the Seller Parent are unable to agree on the choice of the Firm, then the Purchaser Parent’s auditors and the Seller Parent’s auditors shall jointly select a “big-four” accounting firm (or a successor) as the Firm. The Purchaser Parent and the Seller Parent shall direct the Firm to render a determination within thirty (30) days after its retention and the Purchaser Parent, the Seller Parentdisputed exceptions, and their respective agents shall cooperate with the Firm during its engagement. The Firm shall consider only those items and amounts set forth in the Objection Notice which the Purchaser Parent and the Seller Parent are unable to resolve. The Purchaser Parent and the Seller Parent shall each make written submissions to the Firm promptly (and in any event within twenty (20) days after the Firm’s retention), which submissions shall contain such Party’s computation of the Net Asset Value at Closing and Net Asset Value Post Closing Adjustment and information, arguments, and support for such Party’s position. The Firm shall review such submissions and base its determination solely on them. In resolving any disputed item, the 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 smallest value for such item claimed by either party. The Firm’s determination shall be based on the definition of the Net Asset Value, included herein. The determination of the Firm shall determinations will be conclusive and binding upon the Partiesparties thereto for the purposes of any Purchase Price adjustment under Section 3.3(c) hereof. To the extent appropriate, the determinations of the Independent Accounting Firm shall be made and articulated in accordance with GAAP consistently applied with the Seller's past practices. The Purchaser Parent fees and disbursements of the Independent Accounting Firm shall be shared equally by the Buyer and the Seller Parent shall each bear 50% of the costs and expenses of the FirmSeller.
Appears in 1 contract
Samples: Asset Purchase Agreement (Information Holdings Inc)
Post-Closing Determination. Within ten (10) 90 days after the Closing -------------------------- Date, Seller Parent shall deliver to Purchaser Parent true and correct copies of all financial books and records of the Sellers necessary for Purchaser Parent to prepare a balance sheet of the Business as of the Closing Date for purposes of calculating the Net Asset Value as of the Closing Date (the “Net Asset Value at Closing”). Within forty (40) days after receipt of such materials from the Seller Parent, the Purchaser Parent and its auditors shall prepare will conduct a balance sheet review (the "Closing ------- Review") of the Business as Cash Amount, the Indebtedness Amount and the Net Working Capital ------ Amount and will prepare and deliver to the Representative a computation of the Closing Date such amounts (the “Closing "Draft Balance Sheet”) consistent with the manner of computation of the Base Net Asset Value and in conformance with GAAP for the purposes of determining the Net Asset Value at Closing and any resulting adjustments to the Purchase Price pursuant to Section 3.3(a)(ii) (the “Net Asset Value Post Closing Adjustment”"); provided, that, the Parties acknowledge and agree that, for purposes of determining the Net Asset Value at Closing, the Parties shall disregard any increase in the accounts receivable of the Sellers between January 31, 2005 and the Closing Date resulting from a decrease in the amount of receivables sold by the Sellers between January 31, 2005 and the Closing Date. The ------------------- Purchaser Parent and its auditors shall will make available to the Seller Parent Representative and its auditors all records and work papers used in preparing the Closing Draft Balance Sheet and the Net Asset Value Post Closing AdjustmentSheet. If the Seller Parent Representative disagrees with the computation of any of the Cash Amount, the Indebtedness Amount or the Net Asset Value at Closing Working Capital Amount reflected on the Closing Draft Balance Sheet or the Net Asset Value Post Closing AdjustmentSheet, the Seller Parent Representative may, within fifteen (15) 30 days after receipt of the Closing Draft Balance Sheet, deliver a notice (an “"Objection Notice”") to the Purchaser Parent setting ---------------- forth the Seller Parent’s Representative's calculation of such Net Asset Value at Closing or such Net Asset Value Post Closing Adjustment. If the Seller Parent does not deliver an Objection Notice within such fifteen (15) day periodCash Amount, then the Indebtedness Amount and the Net Asset Value at Closing and Net Asset Value Post Closing Adjustment shall be deemed finally determined to be as set forth on the Closing Balance SheetWorking Capital Amount. If the Seller Parent does deliver an Objection Notice, the The Purchaser Parent and the Seller Parent shall Representative will use reasonable best efforts to resolve any disagreements as to the computation of the Cash Amount, the Indebtedness Amount and the Net Asset Value at Closing or Net Asset Value Post Closing Adjustment, as the case may beWorking Capital Amount, but if they do not obtain a final resolution within thirty (30) 30 days after the Purchaser Parent has received the Objection Notice, the Purchaser Parent and the Seller Parent shall Representative will jointly retain an independent accounting firm of recognized national standing (the “Firm”"Working Capital Auditor") to resolve any remaining ----------------------- disagreements. In any event, a Net Asset Value Post Closing Adjustment shall be made with respect to such amounts as are not in dispute, as set forth in the Objection Notice. If the Purchaser Parent and the Seller Parent Representative are unable to agree on the choice of the FirmWorking Capital Auditor, then the Purchaser Parent’s auditors and the Seller Parent’s auditors shall jointly select Working Capital Auditor will be a “"big-four” five" accounting firm (or a successor) as selected by lot (after excluding one firm designated by the FirmPurchaser and one firm designated by the Representative). The Purchaser Parent and the Seller Parent shall Representative will direct the Firm Working Capital Auditor to render a determination within thirty (30) 30 days after of its retention and the Purchaser ParentPurchaser, the Seller ParentRepresentative, and their respective agents shall will cooperate with the Firm Working Capital Auditor during its engagement. The Firm shall Working Capital Auditor will consider only those items and amounts in the Draft Balance Sheet set forth in the Objection Notice which the Purchaser Parent and the Seller Parent Representative are unable to resolve. The Purchaser Parent and the Seller Parent Representative shall each make written submissions submit a binder to the Firm Working Capital Auditor promptly (and in any event within twenty (20) 30 days after the Firm’s retentionWorking Capital Auditor's engagement), which submissions binder shall contain such Party’s 's computation of the Cash Amount, the Indebtedness Amount and the Net Asset Value at Closing and Net Asset Value Post Closing Adjustment Working Capital Amount and information, arguments, and support for such Party’s 's position. The Firm Working Capital Auditor shall review such submissions binders and base its determination solely on them. In resolving any disputed item, the Firm Working Capital Auditor may not assign a value to any item greater than the greatest value for such item claimed by either party or less than the smallest value for such item claimed by either party. The Firm’s Working Capital Auditor's determination shall will be based on the definition of the Cash Amount, the Indebtedness Amount and the Net Asset Value, Working Capital Amount included herein. The determination of the Firm shall Working Capital Auditor will be conclusive and binding upon the Parties. The Purchaser Parent and the Seller Parent Representative shall each bear 50% of the costs and expenses of the Firm.Working Capital Auditor based on the percentage which the portion of the contested amount not awarded to each party bears to the amount actually contested by such party. The Cash Amount, the Indebtedness Amount and the Net Working Capital Amount, as finally determined pursuant to this Section 2.4(a), is referred to herein as the "Actual Cash Amount," the "Actual Indebtedness Amount" and the "Actual Net ------------------ -------------------------- ---------- Working Capital Amount," respectively. ----------------------
Appears in 1 contract
Samples: Stock Purchase Agreement (Communications Instruments Inc)
Post-Closing Determination. Within ten (10) 90 days after the Closing Date, Seller Parent shall deliver to Purchaser Parent true and correct copies of all financial books and records of the Sellers necessary for Purchaser Parent to prepare a balance sheet of the Business as of the Closing Date for purposes of calculating the Net Asset Value as of the Closing Date (the “Net Asset Value at Closing”). Within forty (40) days after receipt of such materials from the Seller Parent, the Purchaser Parent -------------------------- Hoechst and its auditors shall will prepare a and deliver to Dade an audited calculation of Net Assets determined in accordance with Section 1.5 and from the audited consolidated balance sheet of the Business as of the Closing Date (the “Closing "Draft ----- Balance Sheet”) consistent with "). Dade and its auditors shall, during the manner of computation preparation of the Base Net Asset Value ------------- Draft Balance Sheet by Hoechst and in conformance with GAAP during the period for the purposes of determining the Net Asset Value at Closing and any resulting adjustments which an objection may be filed pursuant to the Purchase Price pursuant next sentence, have reasonable access to Section 3.3(a)(ii) (the “Net Asset Value Post Closing Adjustment”); providedHoechst, that, the Parties acknowledge and agree that, for purposes of determining the Net Asset Value at Closing, the Parties shall disregard any increase in the accounts receivable of the Sellers between January 31, 2005 and the Closing Date resulting from a decrease in the amount of receivables sold by the Sellers between January 31, 2005 and the Closing Date. The Purchaser Parent Hoechst and its auditors shall make available to the Seller Parent Dade and its auditors all records and work papers used in preparing the Closing Draft Balance Sheet and the Net Asset Value Post Closing AdjustmentSheet. If the Seller Parent Dade disagrees with the computation of any of the Net Asset Value at Closing Assets reflected on the Closing Draft Balance Sheet or the Net Asset Value Post Closing AdjustmentSheet, the Seller Parent Dade may, within fifteen (15) 60 days after receipt of the Closing Draft Balance Sheet, deliver a written notice (an “"Objection Notice”") to the Purchaser Parent Hoechst setting forth the Seller Parent’s Dade's ---------------- calculation of Net Assets; provided that the running of such Net Asset Value at Closing period will be -------- suspended during any period that Hoechst or such Net Asset Value Post Closing Adjustmentany of its subsidiaries fail to comply with its obligations set forth in the immediately preceding sentence. If the Seller Parent does not deliver an Objection Notice is not delivered within such fifteen (15) day time period, then the amount of Net Asset Value at Closing and Net Asset Value Post Closing Adjustment Assets set forth in the Draft Balance Sheet shall be deemed finally determined to be as set forth on the Closing Balance Sheetconclusive and binding upon Dade and Hoechst and their respective affiliates. If the Seller Parent does deliver an Objection Notice, the Purchaser Parent Dade and the Seller Parent shall Hoechst will use reasonable best efforts to resolve any disagreements as to the computation of the Net Asset Value at Closing or Net Asset Value Post Closing Adjustment, as the case may beAssets, but if they do not obtain a final resolution within thirty (30) 30 days after the Purchaser Parent Hoechst has received the Objection Notice, the Purchaser Parent Dade and the Seller Parent shall Hoechst will jointly retain an independent accounting firm of recognized standing (the “"Firm”") to resolve any remaining disagreements. In any event, a Net Asset Value Post Closing Adjustment shall be made with respect to such amounts as If Dade and Hoechst are not in dispute, as set forth in the Objection Notice. If the Purchaser Parent and the Seller Parent are ---- unable to agree on the choice of the Firm, then the Purchaser Parent’s auditors Firm shall be Deloitte & Touche LLP. Dade and the Seller Parent’s auditors shall jointly select a “big-four” accounting firm (or a successor) as the Firm. The Purchaser Parent and the Seller Parent Hoechst shall direct the Firm to render a determination within thirty (30) 30 days after of its retention and the Purchaser ParentDade, the Seller Parent, Hoechst and their respective agents employees shall cooperate with the Firm during its engagement. The Firm shall consider only those items and amounts in the Draft Balance Sheet set forth in the Objection Notice which the Purchaser Parent that Dade and the Seller Parent Hoechst are unable to resolve. The Purchaser Parent and the Seller Parent shall each make written submissions to the Firm promptly (and in any event within twenty (20) days after the Firm’s retention), which submissions shall contain such Party’s computation of the Net Asset Value at Closing and Net Asset Value Post Closing Adjustment and information, arguments, and support for such Party’s position. The Firm shall review such submissions and base its determination solely on them. In resolving any disputed item, the 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 smallest value for such item claimed by either party. The Firm’s 's determination shall be based on the definition of the Net Asset Value, Assets included herein. The determination of the Firm shall will be conclusive and binding upon the PartiesDade and Hoechst and their respective affiliates. The Purchaser Parent fees and the Seller Parent shall each bear 50% expenses ("Firm Fees") of the costs and expenses --------- Firm shall be paid by Dade, subject to the reimbursement by Hoechst as set forth in the next sentence. If any of the Firmitems set forth in the Objection Notice and submitted to the Firm for determination are resolved in favor of Dade, Hoechst shall promptly reimburse Dade by wire transfer of immediately available funds in an amount equal to (the "Reimbursement Calculation") (if and only if a positive -------------------------- number) the Firm Fees multiplied by a factor equal to A minus B plus twice ----- ---- A multiplied by B; where "A" is the quotient obtained by dividing the amount ---------- of the items in the Objection Notice resolved by the Firm in favor of Dade by the total amount of such items, and "B" is the Hoechst Percentage. If the Reimbursement Calculation yields a negative number, Dade shall promptly pay Hoechst by wire transfer of immediately available funds in the absolute amount of such Reimbursement Calculation.
Appears in 1 contract
Post-Closing Determination. Within ten (10) 90 days after the Closing Date, Seller Parent shall deliver to Purchaser Parent true and correct copies of all financial books and records of the Sellers necessary for Purchaser Parent to prepare a balance sheet of the Business as of the Closing Date for purposes of calculating the Net Asset Value as of the Closing Date (the “Net Asset Value at Closing”). Within forty (40) days after receipt of such materials from the Seller Parent, the Purchaser Parent Company and its auditors shall prepare will conduct a balance sheet review (the "Closing Review") of the Business as Cash Amount, the Indebtedness Amount, the Net Working Capital Amount and the Capital Expenditures Amount and will prepare and deliver to the Existing Stockholder a computation of the Closing Date such amounts (the “Closing Balance Sheet”) consistent with the manner of computation of the Base Net Asset Value and in conformance with GAAP for the purposes of determining the Net Asset Value at Closing and any resulting adjustments to the Purchase Price pursuant to Section 3.3(a)(ii) (the “Net Asset Value Post Closing Adjustment”"Draft Computations"); provided, that, the Parties acknowledge and agree that, for purposes of determining the Net Asset Value at Closing, the Parties shall disregard any increase in the accounts receivable of the Sellers between January 31, 2005 and the Closing Date resulting from a decrease in the amount of receivables sold by the Sellers between January 31, 2005 and the Closing Date. The Purchaser Parent Company and its auditors shall will make available to the Seller Parent Existing Stockholder and its auditors all records and work papers used in preparing the Closing Balance Sheet and the Net Asset Value Post Closing AdjustmentDraft Computations. If the Seller Parent Existing Stockholder disagrees with the computation of any of the Cash Amount, the Indebtedness Amount, the Net Asset Value at Closing reflected on the Closing Balance Sheet Working Capital Amount or the Net Asset Value Post Closing AdjustmentCapital Expenditures Amount reflected in the Draft Computations, the Seller Parent Existing Stockholder may, within fifteen (15) 30 days after receipt of the Closing Balance SheetDraft Computations, deliver a notice (an “"Objection Notice”") to the Purchaser Parent Company setting forth the Seller Parent’s Existing Stockholder's calculation of such Net Asset Value at Closing or such Net Asset Value Post Closing Adjustment. If the Seller Parent does not deliver an Objection Notice within such fifteen (15) day periodCash Amount, then the Indebtedness Amount, the Net Asset Value at Closing and Net Asset Value Post Closing Adjustment shall be deemed finally determined to be as set forth on the Closing Balance Sheet. If the Seller Parent does deliver an Objection Notice, the Purchaser Parent Working Capital Amount and the Seller Parent shall Capital Expenditures Amount. The Company and the Existing Stockholder will use reasonable best efforts to resolve any disagreements as to the computation of the Cash Amount, the Indebtedness Amount, the Net Asset Value at Closing or Net Asset Value Post Closing Adjustment, as Working Capital Amount and the case may beCapital Expenditures Amount, but if they do not obtain a final resolution within thirty (30) 30 days after the Purchaser Parent Company has received the Objection Notice, the Purchaser Parent Company and the Seller Parent shall Existing Stockholder will jointly retain an independent accounting firm of recognized national standing (the “"Firm”") to resolve any remaining disagreements. In any event, a Net Asset Value Post Closing Adjustment shall be made with respect to such amounts as are not in dispute, as set forth in the Objection Notice. If the Purchaser Parent Company and the Seller Parent Existing Stockholder are unable to agree on the choice of the Firm, then the Purchaser Parent’s auditors and the Seller Parent’s auditors shall jointly select Firm will be a “"big-four” five" accounting firm (or a successor) as selected by lot (after excluding one firm designated by the FirmCompany and one firm designated by the Existing Stockholder). The Purchaser Parent Company and the Seller Parent shall Existing Stockholder will direct the Firm to render a determination within thirty (30) 30 days after of its retention and the Purchaser ParentCompany, the Seller ParentExisting Stockholder, and their respective agents shall will cooperate with the Firm during its engagement. The Firm shall will consider only those items and amounts in the Draft Computations set forth in the Objection Notice which the Purchaser Parent Company and the Seller Parent Existing Stockholder are unable to resolve. The Purchaser Parent Company and the Seller Parent Existing Stockholder shall each make written submissions submit a binder to the Firm promptly (and in any event within twenty (20) 20 days after the Firm’s retention's engagement), which submissions binder shall contain such Party’s 's computation of the Cash Amount, the Indebtedness Amount, the Net Asset Value at Closing Working Capital Amount and Net Asset Value Post Closing Adjustment the Capital Expenditures Amount and information, arguments, and support for such Party’s 's position. The Firm shall review such submissions binders and base its determination solely on them. In resolving any disputed item, the 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 smallest value for such item claimed by either party. The Firm’s 's determination shall will be based on the definition of the Cash Amount, the Indebtedness Amount, the Net Asset Value, Working Capital Amount and the Capital Expenditures Amount included herein. The determination of the Firm shall will be conclusive and binding upon the Parties. The Purchaser Parent and the Seller Parent Existing Stockholder shall each bear 50% a percentage of the costs and expenses of the Firm.Firm equal to the difference between the aggregate amount contested by the Existing Stockholder as set forth on the Objection Notice and amounts actually paid to (or by) the Existing Stockholder with respect to contested items, as a percentage of the aggregate amount so contested. The Company shall bear the remainder of such costs and expenses. The Cash Amount, the Indebtedness Amount, the Net Working Capital
Appears in 1 contract
Samples: Recapitalization Agreement (Inphynet South Broward Inc)
Post-Closing Determination. Within ten (10) 90 days after the Closing Date, Seller Parent shall deliver to the Purchaser Parent true and correct copies of all financial books and records its auditors will conduct a review (the "Closing Review") of the Sellers necessary for Purchaser Parent to prepare a balance sheet book value of the Business Acquired Assets as of the Closing Date for purposes close of calculating business on June 30, 1998 and will prepare and deliver to the Net Asset Value Seller a computation of the amount of the book value of the Acquired Assets as of the Closing Date close of business on June 30, 1998 (the “Net Asset Value at Closing”"Draft Balance Sheet"). Within forty (40) days after receipt of such materials from the Seller Parent, the The Purchaser Parent and its auditors shall prepare a balance sheet of the Business as of the Closing Date (the “Closing Balance Sheet”) consistent with the manner of computation of the Base Net Asset Value and in conformance with GAAP for the purposes of determining the Net Asset Value at Closing and any resulting adjustments to the Purchase Price pursuant to Section 3.3(a)(ii) (the “Net Asset Value Post Closing Adjustment”); provided, that, the Parties acknowledge and agree that, for purposes of determining the Net Asset Value at Closing, the Parties shall disregard any increase in the accounts receivable of the Sellers between January 31, 2005 and the Closing Date resulting from a decrease in the amount of receivables sold by the Sellers between January 31, 2005 and the Closing Date. The Purchaser Parent and its auditors shall will make available to the Seller Parent and its auditors all records and work papers used in preparing the Closing Draft Balance Sheet and the Net Asset Value Post Closing AdjustmentSheet. If the Seller Parent disagrees with the computation of any the book value of the Net Asset Value at Closing Acquired Assets reflected on the Closing Draft Balance Sheet or the Net Asset Value Post Closing AdjustmentSheet, the Seller Parent may, within fifteen thirty (1530) days after receipt of the Closing Draft Balance Sheet, deliver a notice (an “"Objection Notice”") to the Purchaser Parent setting forth the Seller Parent’s Seller's calculation of such Net Asset Value at Closing or such Net Asset Value Post Closing Adjustmentthe amount of the book value of the Acquired Assets as of the close of business on June 30, 1998. If the Seller Parent does not deliver an Objection Notice within such fifteen (15) day period, then the Net Asset Value at Closing and Net Asset Value Post Closing Adjustment shall be deemed finally determined to be as set forth on the Closing Balance Sheet. If the Seller Parent does deliver an Objection Notice, the The Purchaser Parent and the Seller Parent shall will use reasonable best efforts to resolve any disagreements as to the computation of the Net Asset Value at Closing or Net Asset Value Post Closing Adjustment, as book value of the case may beAcquired Assets, but if they do not obtain a final resolution within thirty (30) days after the Purchaser Parent has received the Objection Notice, the Purchaser Parent and the Seller Parent shall will jointly retain an independent accounting firm of recognized national standing (the “"Firm”") to resolve any remaining disagreements. In any event, a Net Asset Value Post Closing Adjustment shall be made with respect to such amounts as are not in dispute, as set forth in the Objection Notice. If the Purchaser Parent and the Seller Parent are unable to agree on the choice of the Firm, then the Firm will be a "big-six" accounting firm selected by lot (after excluding one firm designated by the Purchaser Parent’s auditors and one firm designated by the Seller). The Purchaser and the Seller Parent’s auditors shall jointly select a “big-four” accounting firm (or a successor) as the Firm. The Purchaser Parent and the Seller Parent shall will direct the Firm to render a determination within thirty (30) 30 days after of its retention and the Purchaser ParentPurchaser, the Seller ParentSeller, the Stockholder and their respective agents shall will cooperate with the Firm during its engagement. The Firm shall will consider only those items and amounts in the Draft Balance Sheet set forth in the Objection Notice which the Purchaser Parent and the Seller Parent are unable to resolve. The Purchaser Parent and the Seller Parent shall each make written submissions to the Firm promptly (and in any event within twenty (20) days after the Firm’s retention), which submissions shall contain such Party’s computation of the Net Asset Value at Closing and Net Asset Value Post Closing Adjustment and information, arguments, and support for such Party’s position. The Firm shall review such submissions and base its determination solely on them. In resolving any disputed item, the 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 smallest value for such item claimed by either party. The Firm’s 's determination shall will be based solely on presentations by the Purchaser and the Seller (i.e., not on independent review), and on the definition of the Net Asset Value, Acquired Assets included herein. The determination of the Firm shall will be conclusive and binding upon the PartiesPurchaser, the Seller and the Stockholder. The Purchaser Parent and the Seller Parent shall each bear 50% of the costs and expenses of the FirmFirm based on the percentage which the portion of the contested amount not awarded to each party bears to the amount actually contested by such party. The book value of the Acquired Assets, as finally determined pursuant to this Section 2.2(b), is referred to herein as the "Actual Acquired Assets Amount."
Appears in 1 contract
Post-Closing Determination. Within ten (10) 90 days after the Closing Date, Seller Parent shall deliver to Purchaser Parent true and correct copies of all financial books and records its auditors will conduct a review (the "Closing Review") of the Sellers necessary for Purchaser Parent to prepare a balance sheet of the Business Asset Book Value as of the close of business on the day before the Closing Date for purposes and will prepare and deliver to Seller a computation of calculating the Net amount of the Asset Book Value as of the close of business on the day before the Closing Date (the “Net Asset Value at Closing”"Draft Worksheet"). Within forty (40) days after receipt of such materials from the Seller Parent, the Purchaser Parent and its auditors shall prepare a balance sheet of the Business as of the Closing Date (the “Closing Balance Sheet”) consistent with the manner of computation of the Base Net Asset Value and in conformance with GAAP for the purposes of determining the Net Asset Value at Closing and any resulting adjustments to the Purchase Price pursuant to Section 3.3(a)(ii) (the “Net Asset Value Post Closing Adjustment”); provided, that, the Parties acknowledge and agree that, for purposes of determining the Net Asset Value at Closing, the Parties shall disregard any increase in the accounts receivable of the Sellers between January 31, 2005 and the Closing Date resulting from a decrease in the amount of receivables sold by the Sellers between January 31, 2005 and the Closing Date. The Purchaser Parent will give Seller and its auditors shall an opportunity to observe the Closing Review and will make available to the Seller Parent and its auditors such Persons all records and work papers used in preparing the Closing Balance Sheet and the Net Asset Value Post Closing AdjustmentDraft Worksheet. If the Seller Parent disagrees with the computation of any of the Net Asset Book Value at Closing reflected on the Closing Balance Sheet or the Net Asset Value Post Closing AdjustmentDraft Worksheet, the Seller Parent may, within fifteen thirty (1530) days after receipt of the Closing Balance SheetDraft Worksheet, deliver a notice (an “"Objection Notice”") to the Purchaser Parent setting forth the Seller Parent’s Seller's calculation of such Net the Asset Book Value at Closing or such Net Asset Value Post Closing Adjustment. If as of the Seller Parent does not deliver an Objection Notice within such fifteen (15) day period, then the Net Asset Value at Closing and Net Asset Value Post Closing Adjustment shall be deemed finally determined to be as set forth close of business on the day before the Closing Balance SheetDate. If the Seller Parent does deliver an Objection Notice, the and Purchaser Parent and the Seller Parent shall will use reasonable best efforts to resolve any disagreements as to the computation of the Net Asset Value at Closing or Net Asset Value Post Closing Adjustment, as the case may beBook Value, but if they do not obtain a final resolution within thirty (30) days after the Purchaser Parent has received the Objection Notice, the Seller and Purchaser Parent and the Seller Parent shall will jointly retain an independent accounting firm of recognized national standing (the “"Firm”") to resolve any remaining disagreements. In any event, a Net Asset Value Post Closing Adjustment shall be made with respect to such amounts as are not in dispute, as set forth in the Objection Notice. If the Seller and Purchaser Parent and the Seller Parent are unable to agree on the choice of the Firm, then the Purchaser Parent’s auditors and the Seller Parent’s auditors shall jointly select Firm will be a “"big-four” six" accounting firm selected by lot (or a successor) as the Firmafter excluding one firm designated by Purchaser and one firm designated by Seller). The Seller and Purchaser Parent and the Seller Parent shall will direct the Firm to render a determination within thirty fifteen (3015) days after of its retention and the Purchaser ParentPurchaser, the Seller Parent, and their respective agents shall will cooperate with the Firm during its engagement. The Firm shall will consider only those items and amounts in the Draft Worksheet set forth in the Objection Notice which the Seller and Purchaser Parent and the Seller Parent are unable to resolve. The Purchaser Parent and the Seller Parent shall each make written submissions to the Firm promptly (and in any event within twenty (20) days after the Firm’s retention), which submissions shall contain such Party’s computation of the Net Asset Value at Closing and Net Asset Value Post Closing Adjustment and information, arguments, and support for such Party’s position. The Firm shall review such submissions and base its 's determination solely on them. In resolving any disputed item, the 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 smallest value for such item claimed by either party. The Firm’s determination shall will be based on the definition of the Net Asset Value, Book Value included herein. The determination of the Firm shall will be conclusive and binding upon the PartiesSeller and Purchaser. The Seller and Purchaser Parent and the Seller Parent shall each bear 50% of the costs and expenses of the FirmFirm based on the percentage which the portion of the contested amount not awarded to each party bears to the amount actually contested by such party. The amount of the Asset Book Value, as finally determined pursuant to this Section 2.2(b), is referred to herein as the "Actual Asset Book Value."
Appears in 1 contract
Post-Closing Determination. Within ten (10) 90 days after the Closing Date, Seller Parent the Buyer shall prepare and deliver to Purchaser Parent true and correct copies of all financial books and records the Representative the Buyer’s determination of the Sellers necessary for Purchaser Parent to prepare a balance sheet Merger Consideration, including the Cash Amount, Indebtedness Amount, Net Working Capital Amount, Incentive Compensation Amount (including the employer portion of any employment Taxes payable with respect thereto), and the Business as of Company Transaction Expenses assumed or paid by Buyer, Merger Sub, the Closing Date for purposes of calculating the Net Asset Value as of the Closing Date Surviving Corporation or any Subsidiary (the “Net Asset Value at ClosingDraft Computation”), provided that payoff letters shall conclusively establish the Indebtedness Amount owed to such lender. Within forty (40) days after receipt of such materials from The Draft Computation shall be prepared and the Seller ParentNet Working Capital Amount shall be determined on a consolidated basis using the same accounting methods, the Purchaser Parent policies, principles, practices and its auditors shall prepare a balance sheet procedures, with consistent classifications, judgments and estimation methodology, as were used in preparation of the Business Latest Balance Sheet, and shall not include any changes in assets or liabilities as a result of purchase or other non-cash accounting adjustments or other changes arising from or resulting as a consequence of the Closing Date (Transactions. The parties agree that the “Closing Balance Sheet”) consistent with purpose of preparing the manner Draft Computation and determining the Merger Consideration, including the Net Working Capital Amount, and the related adjustment contemplated by this Section 3.03, is to measure the difference between the Merger Consideration and the Estimated Merger Consideration, and such processes are not intended to permit the introduction of computation of the Base Net Asset Value and in conformance with GAAP different judgments, accounting methods, policies, principles, practices, procedures, classifications or estimation methodologies for the purposes purpose of preparing the Draft Computation or determining the Net Asset Value at Closing and Merger Consideration or any resulting adjustments to the Purchase Price pursuant to Section 3.3(a)(ii) (the “Net Asset Value Post Closing Adjustment”); provided, that, the Parties acknowledge and agree that, for purposes of determining the Net Asset Value at Closing, the Parties shall disregard any increase in the accounts receivable of the Sellers between January 31, 2005 and the Closing Date resulting from a decrease in the amount of receivables sold by the Sellers between January 31, 2005 and the Closing Datecomponent part thereof. The Purchaser Parent and its auditors shall Buyer will make available to the Seller Parent Representative and its auditors all records and work papers used in preparing the Closing Balance Sheet Draft Computation, and the Net Asset Value Post Closing Adjustmentits employees and advisors. If the Seller Parent Representative disagrees with the computation of any aspect of the Net Asset Value at Closing reflected on the Closing Balance Sheet or the Net Asset Value Post Closing AdjustmentDraft Computation, the Seller Parent Representative may, within fifteen (15) 60 days after receipt of the Closing Balance SheetDraft Computation, deliver a notice (an “Objection Notice”) to the Purchaser Parent Buyer setting forth the Seller ParentRepresentative’s calculation determination of such Net Asset Value at Closing or such Net Asset Value Post Closing Adjustmentthe Merger Consideration. If the Seller Parent Representative does not deliver an Objection Notice to the Buyer within such fifteen (15) day period60 days after receipt of the Draft Computation, then the Net Asset Value at Closing parties hereto will be deemed to have agreed to the Draft Computation and Net Asset Value Post Closing Adjustment the components of such Draft Computation shall be deemed to be finally determined to be as set forth on the Closing Balance Sheettherein. If the Seller Parent does deliver an Objection Notice, the Purchaser Parent The Buyer and the Seller Parent Representative shall use reasonable best efforts to resolve any disagreements as to the computation of Draft Computation and the Net Asset Value at Closing or Net Asset Value Post Closing Adjustment, as the case may beObjection Notice, but if they do not obtain a final resolution within thirty (30) 60 days after the Purchaser Parent Buyer has received the Objection Notice, the Purchaser Parent Buyer and the Seller Parent Representative shall jointly retain an independent McGladrey LLP or, if McGladrey LLP is unable or unwilling to serve in such capacity, such accounting firm of recognized standing as is mutually agreed upon by the parties (such firm, the “Firm”) to resolve any remaining disagreements. In any event, a Net Asset Value Post Closing Adjustment shall be made with respect to such amounts as are not in dispute, as set forth in the Objection Notice. If the Purchaser Parent and the Seller Parent parties are unable to agree on the choice selection of the FirmFirm within five (5) business days after expiration of such sixty (60) day period, then the Purchaser Parent’s auditors Firm shall be appointed by the American Arbitration Association. The Buyer and the Seller Parent’s auditors shall jointly select a “big-four” accounting firm (or a successor) as the Firm. The Purchaser Parent and the Seller Parent Representative shall direct the Firm to render a determination within thirty (30) 30 days after its retention and the Purchaser ParentBuyer, the Seller Parent, Representative and their respective agents shall cooperate with the Firm during its engagement. The Firm shall may consider only those items and amounts set forth in the Draft Computation or Objection Notice which the Purchaser Parent Buyer and the Seller Parent Representative are unable to resolve. The Purchaser Parent and the Seller Parent shall each make written submissions to the Firm promptly (and in any event within twenty (20) days after the Firm’s retention), which submissions shall contain such Party’s computation of the Net Asset Value at Closing and Net Asset Value Post Closing Adjustment and information, arguments, and support for such Party’s position. The Firm shall review such submissions and base its determination solely on them. In resolving any disputed item, the 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 smallest value for such item claimed by either party. The Firm’s determination shall be based solely on written submissions by the Buyer and the Representative (i.e., not on independent review) and on the definition of the Net Asset Value, definitions included herein. The determination of the Firm shall be conclusive and binding upon the Parties. The Purchaser Parent Buyer, the Representative and the Seller Parent shall each bear 50% of Holders. Until the Firm makes its determination, the costs and expenses of the FirmFirm shall be borne equally by the Buyer, on the one hand, and the Representative (on behalf of the Holders in accordance with their respective Allocable Share), on the other hand; provided that, when the Firm makes its determination, the costs and expenses of the Firm shall be allocated between the Representative (on behalf of the Holders in accordance with their respective Allocable Share), on the one hand, and the Buyer, on the other hand, based upon the percentage which the portion of the contested amount not awarded to each party bears to the amount actually contested by such party. For example, if the Representative claims the Merger Consideration is $1,000 greater than the amount determined by the Buyer, and the Buyer contests only $500 of the amount claimed by the Representative, and if the Firm ultimately resolves the dispute by awarding the Holders $300 of the $500 contested, then the costs and expenses of arbitration will be allocated 60% (i.e., 300 ÷ 500) to the Buyer and 40% (i.e., 200 ÷ 500) to the Representative (on behalf of the Holders in accordance with their respective Allocable Share).
Appears in 1 contract
Samples: Agreement and Plan of Merger (Unique Fabricating, Inc.)
Post-Closing Determination. Within ten sixty (1060) days after the Closing Date, Seller Parent Buyer shall prepare and deliver to Purchaser Parent true Seller a consolidated statement for the Company and correct copies of all financial books and records of the Sellers necessary for Purchaser Parent to prepare a balance sheet of the Business Company Subsidiaries as of the Closing Date for purposes of calculating the Net Asset Value as of the Closing Date (the “Net Asset Value at Closing”). Within forty (40) days after receipt of such materials from the Seller Parent, the Purchaser Parent and its auditors shall prepare a balance sheet of the Business as of the Closing Date Measurement Time (the “Closing Balance SheetStatement”) ), which shall include the Cash and Cash Equivalents of the Company and the Company Subsidiaries on a consolidated basis as of the Measurement Time, the Indebtedness of the Company and the Company Subsidiaries on a consolidated basis as of the Measurement Time, the Transaction Expenses that remain unpaid as of the Measurement Time, and the Working Capital of the Company and the Company Subsidiaries on a consolidated basis as of the Measurement Time. The Closing Statement shall be prepared in a manner consistent with the manner of computation of the Base Net Asset Value and in conformance with GAAP for the purposes of determining the Net Asset Value at Closing and any resulting adjustments to the Purchase Price pursuant to Section 3.3(a)(ii) (the “Net Asset Value Post Closing Adjustment”); provided, that, the Parties acknowledge and agree that, for purposes of determining the Net Asset Value at Closing, the Parties Accounting Principles. Buyer shall disregard any increase in the accounts receivable of the Sellers between January 31, 2005 and the Closing Date resulting from a decrease in the amount of receivables sold by the Sellers between January 31, 2005 and the Closing Date. The Purchaser Parent and its auditors shall promptly make available to the Seller Parent and its auditors all relevant records and work papers that are subject to customary release letters used in preparing the Closing Balance Sheet Statement and the Net Asset Value Post Closing Adjustmentcomputation of Cash and Cash Equivalents, Indebtedness, Transaction Expenses and Working Capital of the Company and the Company Subsidiaries on a consolidated basis as of the Measurement Time. If the Seller Parent disagrees with the computation of any the Cash and Cash Equivalents, Indebtedness, Transaction Expenses or Working Capital of the Net Asset Value at Closing Company and the Company Subsidiaries on a consolidated basis as of the Measurement Time as calculated by Buyer or any other items reflected on the Closing Balance Sheet or the Net Asset Value Post Closing AdjustmentStatement, the Seller Parent may, within fifteen thirty (1530) days after receipt of the Closing Balance SheetStatement, deliver a notice (an “Objection Notice”) to the Purchaser Parent Buyer setting forth in reasonable detail the objections Seller Parenthas, including the nature, amount and basis of each item of disagreement, and Seller’s calculation of such Net Asset Value at Closing or such Net Asset Value Post Closing Adjustmentthe Cash and Cash Equivalents, the Indebtedness, the Transaction Expenses and the Working Capital of the Company and the Company Subsidiaries on a consolidated basis as of the Measurement Time. If the Seller Parent does not deliver an Objection Notice within such fifteen period of thirty (1530) day perioddays, then Buyer’s calculations of the Net Asset Value at Cash and Cash Equivalents, Indebtedness, Transaction Expenses and Working Capital of the Company and the Company Subsidiaries on a consolidated basis as of Closing and Net Asset Value Post Closing Adjustment shall be deemed finally determined to be the Actual Closing Cash and Cash Equivalents, the Actual Closing Indebtedness, the Actual Transaction Expenses and the Actual Closing Working Capital (each, as set forth on the Closing Balance Sheetdefined below). If the Seller Parent does deliver timely delivers an Objection NoticeNotice to Buyer, the Purchaser Parent then Buyer and the Seller Parent shall use commercially reasonable best efforts to resolve any disagreements disagreement as to the computation of the Net Asset Value at Closing or Net Asset Value Post Closing AdjustmentCash and Cash Equivalents, as Indebtedness, Transaction Expenses and Working Capital of the case may be, but if they do not obtain a final resolution within thirty (30) days after the Purchaser Parent has received the Objection Notice, the Purchaser Parent Company and the Seller Parent shall jointly retain an independent accounting firm of recognized standing (the “Firm”) to resolve any remaining disagreements. In any event, a Net Asset Value Post Closing Adjustment shall be made with respect to such amounts as are not in dispute, as set forth in the Objection Notice. If the Purchaser Parent and the Seller Parent are unable to agree on the choice of the Firm, then the Purchaser Parent’s auditors and the Seller Parent’s auditors shall jointly select a “big-four” accounting firm (or a successor) as the Firm. The Purchaser Parent and the Seller Parent shall direct the Firm to render a determination within thirty (30) days after its retention and the Purchaser Parent, the Seller Parent, and their respective agents shall cooperate with the Firm during its engagement. The Firm shall consider only those items and amounts set forth in the Objection Notice which the Purchaser Parent and the Seller Parent are unable to resolve. The Purchaser Parent and the Seller Parent shall each make written submissions to the Firm promptly (and in any event within twenty (20) days after the Firm’s retention), which submissions shall contain such Party’s computation of the Net Asset Value at Closing and Net Asset Value Post Closing Adjustment and information, arguments, and support for such Party’s position. The Firm shall review such submissions and base its determination solely on them. In resolving any disputed item, the 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 smallest value for such item claimed by either party. The Firm’s determination shall be based on the definition of the Net Asset Value, included herein. The determination of the Firm shall be conclusive and binding upon the Parties. The Purchaser Parent and the Seller Parent shall each bear 50% of the costs and expenses of the Firm.Company
Appears in 1 contract
Post-Closing Determination. Within ten (10) 90 days after the Closing -------------------------- Date, Seller Parent shall deliver to the Purchaser Parent true and correct copies its auditors will conduct a review (the "Closing ------- Review") of all financial books and records of the Sellers necessary for Purchaser Parent to prepare a balance sheet of the Business as of the Closing Date for purposes of calculating the Net Asset Value as of the close of business on the day before ------ the Closing Date (and will prepare and deliver to the “Seller a computation of the Net Asset Value at Closing”). Within forty (40) days after receipt of such materials from the Seller Parent, the Purchaser Parent and its auditors shall prepare a balance sheet as of the Business as close of business on the day before the Closing Date (the “Closing "Draft Balance Sheet”) consistent with the manner of computation of the Base Net Asset Value and in conformance with GAAP for the purposes of determining the Net Asset Value at Closing and any resulting adjustments to the Purchase Price pursuant to Section 3.3(a)(ii) (the “Net Asset Value Post Closing Adjustment”"); provided, that, the Parties acknowledge and agree that, for purposes of determining the Net Asset Value at Closing, the Parties shall disregard any increase in the accounts receivable of the Sellers between January 31, 2005 and the Closing Date resulting from a decrease in the amount of receivables sold by the Sellers between January 31, 2005 and the Closing Date. The Purchaser Parent and its auditors shall will make available ------------------- to the Seller Parent and its auditors all records and work papers used in preparing the Closing Draft Balance Sheet and the Net Asset Value Post Closing AdjustmentSheet. If the Seller Parent disagrees with the computation of any of the Net Asset Value at Closing reflected on the Closing Draft Balance Sheet or the Net Asset Value Post Closing AdjustmentSheet, the Seller Parent may, within fifteen thirty (1530) days after receipt of the Closing Draft Balance Sheet, deliver a notice (an “"Objection Notice”") to the Purchaser Parent setting forth the Seller Parent’s Seller's calculation of such Net Asset Value at Closing or such Net Asset Value Post Closing Adjustment. If the Seller Parent does not deliver an Objection Notice within such fifteen (15) day period, then ----------------- the Net Asset Value at Closing and Net Asset Value Post Closing Adjustment shall be deemed finally determined to be as set forth of the close of business on the day before the Closing Balance SheetDate. If the Seller Parent does deliver an Objection Notice, the The Purchaser Parent and the Seller Parent shall will use reasonable best efforts to resolve any disagreements as to the computation of the Net Asset Value at Closing or Net Asset Value Post Closing Adjustment, as the case may beValue, but if they do not obtain a final resolution within thirty (30) days after the Purchaser Parent has received the Objection Notice, the Purchaser Parent and the Seller Parent shall will jointly retain an independent accounting firm of recognized national standing (the “"Firm”") to ---- resolve any remaining disagreements. In For these purposes, an accounting firm shall not be considered "independent" if such firm (or any event, a Net Asset Value Post Closing Adjustment shall be made with respect to such amounts as are not in dispute, as set forth in Affiliate thereof) has performed services during the Objection Noticepast four years for either Party or its principal stockholders. If the Purchaser Parent and the Seller Parent are unable to agree on the choice of the Firm, then the Purchaser Parent’s auditors and the Seller Parent’s auditors shall jointly select Firm will be a “so-called "big-four” six" accounting firm (or a successorsuccessor thereof) as selected by lot (after excluding one firm designated by the FirmPurchaser and one firm designated by the Seller). The Purchaser Parent and the Seller Parent shall will direct the Firm to render a determination within thirty (30) 30 days after of its retention retention. The Purchaser and the Purchaser Parent, the Seller Parent, and their respective agents shall will cooperate with the Firm during its engagement. The Firm shall consider only those items and amounts set forth in the Objection Notice which Firm's determination will be based solely on presentations by the Purchaser Parent and the Seller Parent are unable to resolve. The Purchaser Parent and the Seller Parent shall each make written submissions to the Firm promptly (and in any event within twenty (20) days after the Firm’s retentioni.e., not on independent review), which submissions shall contain such Party’s computation of the Net Asset Value at Closing and Net Asset Value Post Closing Adjustment and information, arguments, and support for such Party’s position. The Firm shall review such submissions and base its determination solely on them. In resolving any disputed item, the 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 smallest value for such item claimed by either party. The Firm’s determination shall be based on the definition of the Net Asset Value, Value included herein. The determination of the Firm shall will be conclusive and binding upon the PartiesPurchaser and the Seller. The Purchaser Parent and the Seller Parent shall each bear 50% of the costs and expenses of the FirmFirm based on the percentage which the portion of the contested amount not awarded to each Party bears to the amount actually contested by such Party. The amount of the Net Asset Value, as finally determined pursuant to this Section 2.3(b), is referred to herein as the "Actual Net Asset Value." ----------------------
Appears in 1 contract
Post-Closing Determination. Within ten (10) No later than 90 days after the Closing Date, Seller Parent shall Purchaser's independent auditors, PricewaterhouseCoopers, will prepare and deliver to Purchaser Parent true Seller a Closing Date balance sheet reflecting the assets and correct copies of all financial books and records liabilities of the Sellers necessary for Division transferred to and assumed by Purchaser Parent to prepare a balance sheet of the Business as of the Closing Date for purposes of calculating and its Affiliates and reflecting the Net Asset Value as of the Division (the "Draft Closing Date (the “Net Asset Value at Closing”Balance Sheet"). Within forty (40) days after receipt of such materials from the If Seller Parent, the Purchaser Parent and its auditors shall prepare a balance sheet of the Business as of the Closing Date (the “Closing Balance Sheet”) consistent with the manner of computation of the Base Net Asset Value and in conformance with GAAP for the purposes of determining the Net Asset Value at Closing and any resulting adjustments to the Purchase Price pursuant to Section 3.3(a)(ii) (the “Net Asset Value Post Closing Adjustment”); provided, that, the Parties acknowledge and agree that, for purposes of determining the Net Asset Value at Closing, the Parties shall disregard any increase in the accounts receivable of the Sellers between January 31, 2005 and the Closing Date resulting from a decrease in the amount of receivables sold by the Sellers between January 31, 2005 and the Closing Date. The Purchaser Parent and its auditors shall make available to the Seller Parent and its auditors all records and work papers used in preparing the Closing Balance Sheet and the Net Asset Value Post Closing Adjustment. If the Seller Parent disagrees with the computation of any calculation of the Net Asset Value at Closing of the Division reflected on the Draft Closing Date Balance Sheet or the Net Asset Value Post Closing AdjustmentSheet, the Seller Parent may, within fifteen (15) 30 days after receipt of the Draft Closing Date Balance Sheet, deliver a notice (an “"Objection Notice”") to the Purchaser Parent setting forth the Seller Parent’s calculation of any such Net Asset Value at Closing or such Net Asset Value Post Closing Adjustmentdisagreement. If the Seller Parent does not deliver an Objection Notice within such fifteen (15) 30 day period, then the Net Asset Value at Closing and Net Asset Value Post Closing Adjustment shall be deemed finally determined to be as set forth on the Draft Closing Date Balance SheetSheet shall be deemed final and conclusive and binding on each of the parties. If the Purchaser and Seller Parent does deliver an Objection Notice, the Purchaser Parent and the Seller Parent shall will use commercially reasonable best efforts to resolve any disagreements as to the computation calculation of the Net Asset Value at Closing or Net Asset Value Post Closing Adjustment, as of the case may beDivision, but if they do not obtain a final resolution within thirty (30) no later than 45 days after the Purchaser Parent has received Purchaser's receipt of the Objection Notice, the Purchaser Parent and the Seller Parent shall will mutually agree upon and jointly retain an independent accounting firm of recognized standing either KPMG Peat Marwick or Deloitte & Touche (the “"Firm”") to resolve any remaining disagreements. In any event, a Net Asset Value Post Closing Adjustment shall be made with respect to such amounts as are not in dispute, as set forth in the Objection Notice. If the Purchaser Parent and the Seller Parent are unable to agree on the choice of the Firm, then one of the two aforementioned accounting firms will be selected by lot. Purchaser Parent’s auditors and the Seller Parent’s auditors shall jointly select a “big-four” accounting firm (or a successor) as the Firm. The Purchaser Parent and the Seller Parent shall will direct the Firm to render a determination within thirty (30) 30 days after of its retention and the Purchaser ParentPurchaser, the Seller Parent, and their respective agents shall will cooperate with the Firm during its engagement. The Firm shall will consider only those items and amounts with respect to the Draft Closing Date Balance Sheet set forth in the Objection Notice which the Purchaser Parent and the Seller Parent are unable to resolve. The Purchaser Parent and the Seller Parent shall each make written submissions to the Firm promptly (and in any event within twenty (20) no later than 15 days after the Firm’s retention's engagement), which submissions shall contain such Party’s party's computation of the Net Asset Value at Closing and Net Asset Value Post Closing Adjustment and information, arguments, and support for such Party’s party's position. The Firm shall review such submissions and base its determination solely on themsuch submissions. In resolving any disputed item, the 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 smallest value for such item claimed by either party. The Firm’s 's determination shall will be based on the definition of the Net Asset Value, Value included herein. The determination of the Firm shall will be conclusive and binding upon the PartiesPurchaser and Seller. The Purchaser Parent and the Seller Parent shall each bear 50% of the costs and expenses of the Firm based on the percentage which the portion of the contested amount not awarded to each party bears to the amount actually contested by such party (e.g., if Purchaser makes a claim for $1,000 and Seller only contests $500 of the amount claimed by Purchaser, and if the Firm resolves the dispute by awarding Purchaser $300 of the $500 contested, then the Firm's costs and expenses will be allocated 60% to Seller and 40% to Purchaser). The Net Asset Value as finally determined pursuant to this Section 1.4(b) is referred herein as the "Actual Net Asset Value" and the final balance sheet on which it is reflected as the "Closing Date Balance Sheet."
Appears in 1 contract
Samples: Asset Purchase Agreement (Systems & Computer Technology Corp)
Post-Closing Determination. Within ten (10) 90 days after the Closing Date, Seller Parent the Buyer shall prepare, and deliver to Purchaser Parent true and correct copies of all financial books and records the Sellers' Representative, (i) the Buyer's determinations of the Sellers necessary for Purchaser Parent to prepare a Cash Amount, the Indebtedness Payoff Amount and the Net Working Capital Amount, and (ii) the Buyer's calculation of the Actual Common Purchase Price (collectively, the "Draft Computation"). The Draft Computation shall be prepared and the Cash Amount, the Indebtedness Payoff Amount, and the Net Working Capital Amount shall be determined on aconsolidated basis using the same accounting methods, policies, principles, practices and procedures, with consistent classifications, judgments and estimation methodology, as were used in preparation of the audited consolidated balance sheet of the Business Company and its Subsidiaries as of the Closing Date for purposes fiscal year ended June 30, 2007 (the "2007 Balance Sheet") or, to the extent applicable, in accordance with any changes to such accounting methods, policies, principles, practices and procedures which are documented in the Company's books and records prior to the Closing, and shall not include any changes in assets or liabilities as a result of calculating purchase or other changes arising from or resulting as a consequence of the transactions contemplated hereby. The parties agree that the purpose of preparing the Draft Computation and determining the Cash Amount, the Indebtedness Payoff Amount, and the Net Asset Value as Working Capital Amount and the related purchase price adjustment contemplated by this Section 2.04 is to measure the amount of Cash and Indebtedness and changes in Net Working Capital, and such processes are not intended to permit the Closing Date (introduction of different judgments, accounting methods, policies, principles, practices, procedures, classifications or estimation methodologies for the “purpose of preparing the Draft Computation or determining Cash, Indebtedness or Net Asset Value at Closing”)Working Capital. Within forty (40) days after receipt of such materials from the Seller Parent, the Purchaser Parent The Buyer and its auditors shall prepare a balance sheet of the Business as of the Closing Date (the “Closing Balance Sheet”) consistent with the manner of computation of the Base Net Asset Value and in conformance with GAAP for the purposes of determining the Net Asset Value at Closing and any resulting adjustments to the Purchase Price pursuant to Section 3.3(a)(ii) (the “Net Asset Value Post Closing Adjustment”); provided, that, the Parties acknowledge and agree that, for purposes of determining the Net Asset Value at Closing, the Parties shall disregard any increase in the accounts receivable of the Sellers between January 31, 2005 and the Closing Date resulting from a decrease in the amount of receivables sold by the Sellers between January 31, 2005 and the Closing Date. The Purchaser Parent and its auditors shall will make available to the Seller Parent Sellers' Representative and its auditors all records and work papers used in preparing the Closing Balance Sheet Draft Computation, and its employees and advisors, provided that such access shall be upon reasonable notice and at reasonable times so as not to interfere unduly with the Net Asset Value Post Closing Adjustmentbusiness of the Buyer, the Company, and their Subsidiaries. If the Seller Parent Sellers' Representative disagrees with the computation of any aspect of the Net Asset Value at Closing reflected on the Closing Balance Sheet or the Net Asset Value Post Closing AdjustmentDraft Computation, the Seller Parent Sellers' Representative may, within fifteen (15) 60 days after receipt of the Closing Balance SheetDraft Computation, deliver a notice (an “"Objection Notice”") to the Purchaser Parent Buyer setting forth the Seller Parent’s Sellers' Representative's determination of the Cash Amount, the Indebtedness Payoff Amount and/or the Net Working Capital Amount and the Sellers' Representative's calculation of the Actual Common Purchase Price, and identifying the specific items and amounts of disagreement. The Sellers' Representative and its auditors will upon request make available to the Buyer and its auditors reasonable access to all records and work papers used in preparing the Objection Notice, and to its employees and advisors, provided that such Net Asset Value access shall be upon reasonable notice and at Closing or such Net Asset Value Post Closing Adjustmentreasonable times so as not to interfere unduly with the business of the Sellers' Representative. If the Seller Parent Sellers' Representative does not deliver an Objection Notice to the Buyer within such fifteen (15) day period60 days after receipt of the Draft Computation, then the Net Asset Value at Closing parties hereto will be deemed to have agreed to the Draft Computation and Net Asset Value Post Closing Adjustment the components of such Draft Computation shall be deemed to be finally determined to be as set forth on the Closing Balance Sheettherein. If the Seller Parent does deliver an Objection Notice, the Purchaser Parent The Buyer and the Seller Parent Sellers' Representative shall use reasonable best efforts to resolve any disagreements as to the computation of Draft Computation and the Net Asset Value at Closing or Net Asset Value Post Closing Adjustment, as the case may beObjection Notice, but if they do not obtain a final resolution within thirty (30) 60 days after the Purchaser Parent Buyer has received the Objection Notice, the Purchaser Parent Buyer and the Seller Parent Sellers' Representative shall jointly retain an independent accounting firm of recognized standing Gxxxx Xxxxxxxx LLP (the “"Firm”") to resolve any remaining disagreements. In any event, a Net Asset Value Post Closing Adjustment shall be made with respect to such amounts as are not in dispute, as set forth in the Objection Notice. If the Purchaser Parent The Buyer and the Seller Parent are unable to agree on the choice of the Firm, then the Purchaser Parent’s auditors and the Seller Parent’s auditors shall jointly select a “big-four” accounting firm (or a successor) as the Firm. The Purchaser Parent and the Seller Parent Sellers' Representative shall direct the Firm to render a determination within thirty (30) 30 days after its retention and the Purchaser ParentBuyer, the Seller Parent, Sellers' Representative and their respective agents shall cooperate with the Firm during its engagement. The Firm shall may consider only those items and amounts set forth in the Draft Computation or Objection Notice which the Purchaser Parent Buyer and the Seller Parent Sellers' Representative are unable to resolve. The Purchaser Parent and the Seller Parent shall each make written submissions to the Firm promptly (and in any event within twenty (20) days after the Firm’s retention), which submissions shall contain such Party’s computation of the Net Asset Value at Closing and Net Asset Value Post Closing Adjustment and information, arguments, and support for such Party’s position. The Firm shall review such submissions and base its determination solely on them. In resolving any disputed item, the 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 smallest value for such item claimed by either party. The Firm’s 's determination shall be based solely on written submissions by the Buyer and the Sellers' Representative (i.e., not on independent review) and on the definition of the Net Asset Value, definitions included herein. The determination of the Firm shall be conclusive and binding upon the Parties. The Purchaser Parent Buyer, the Sellers' Representative and the Seller Parent shall each bear 50% of Sellers. Until the Firm makes its determination, the costs and expenses of the Firm shall be borne equally by the Buyer, on the one hand, and the Sellers' Representative (on behalf of the Sellers in accordance with their respective Indemnity Allocation Percentages), on the other hand; provided that, when the Firm makes its determination, any costs and expenses (including costs and expenses previously advanced) of the Firm that are allocable to the party whose determination of the Actual Common Purchase Price was closest to the Firm's determination of the same shall be paid by the other party.
Appears in 1 contract
Samples: Stock Purchase Agreement (Devry Inc)
Post-Closing Determination. Within ten (10) 90 days after the Closing -------------------------- Date, Seller Parent shall deliver to the Purchaser Parent true and correct copies of all financial books and records its auditors will conduct a review (the "Closing ------- Review") of the Sellers necessary for Purchaser Parent to prepare a balance sheet of the Business Total Assets as of the close of business on the day before the Closing Date for purposes and will prepare and deliver to the Seller a computation of calculating the Net Asset Value amount of the Total Assets as of the close of business on the day before the Closing Date (the “Net Asset Value at Closing”"Draft Balance Sheet"). Within forty (40) days after receipt of such materials from the Seller Parent, the The Purchaser Parent and its auditors shall prepare a balance sheet of the Business as of the Closing Date (the “Closing Balance Sheet”) consistent with the manner of computation of the Base Net Asset Value and in conformance with GAAP for the purposes of determining the Net Asset Value at Closing and any resulting adjustments to the Purchase Price pursuant to Section 3.3(a)(ii) (the “Net Asset Value Post Closing Adjustment”); provided, that, the Parties acknowledge and agree that, for purposes of determining the Net Asset Value at Closing, the Parties shall disregard any increase in the accounts receivable of the Sellers between January 31, 2005 and the Closing Date resulting from a decrease in the amount of receivables sold by the Sellers between January 31, 2005 and the Closing Date. The Purchaser Parent and its auditors shall will ------------------- make available to the Seller Parent and its auditors all records and work papers used in preparing the Closing Draft Balance Sheet and the Net Asset Value Post Closing AdjustmentSheet. If the Seller Parent disagrees with the computation of any of the Net Asset Value at Closing Total Assets reflected on the Closing Draft Balance Sheet or the Net Asset Value Post Closing AdjustmentSheet, the Seller Parent may, within fifteen thirty (1530) days after receipt of the Closing Draft Balance Sheet, deliver a notice (an “"Objection Notice”") to the Purchaser Parent setting forth the Seller Parent’s Seller's ---------------- calculation of such Net Asset Value at Closing or such Net Asset Value Post Closing Adjustment. If the Seller Parent does not deliver an Objection Notice within such fifteen (15) day period, then amount of the Net Asset Value at Closing and Net Asset Value Post Closing Adjustment shall be deemed finally determined to be Total Assets as set forth of the close of business on the day before the Closing Balance SheetDate. If the Seller Parent does deliver an Objection Notice, the The Purchaser Parent and the Seller Parent shall will use reasonable best efforts to resolve any disagreements as to the computation of the Net Asset Value at Closing or Net Asset Value Post Closing Adjustment, as the case may beTotal Assets, but if they do not obtain a final resolution within thirty (30) days after the Purchaser Parent has received the Objection Notice, the Purchaser Parent and the Seller Parent shall will jointly retain an independent accounting firm of recognized national standing (the “"Firm”") to resolve any remaining disagreements. In any event, a Net Asset Value Post Closing Adjustment shall be made with respect to such amounts as are not in dispute, as set forth in the Objection Notice. If the Purchaser Parent ---- and the Seller Parent are unable to agree on the choice of the Firm, then the Purchaser Parent’s auditors and the Seller Parent’s auditors shall jointly select Firm will be a “so-called "big-four” six" accounting firm (or a successorsuccessor thereof) as selected by lot (after excluding one firm designated by the FirmPurchaser and one firm designated by the Seller). The Purchaser Parent and the Seller Parent shall will direct the Firm to render a determination within thirty (30) 30 days after of its retention and the Purchaser ParentPurchaser, the Seller ParentSeller, the Stockholders and their respective agents shall will cooperate with the Firm during its engagement. The Firm shall will consider only those items and amounts in the Draft Balance Sheet set forth in the Objection Notice which the Purchaser Parent and the Seller Parent are unable to resolve. The Purchaser Parent and the Seller Parent shall each make written submissions to the Firm promptly (and in any event within twenty (20) days after the Firm’s retention), which submissions shall contain such Party’s computation of the Net Asset Value at Closing and Net Asset Value Post Closing Adjustment and information, arguments, and support for such Party’s position. The Firm shall review such submissions and base its determination solely on them. In resolving any disputed item, the 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 smallest value for such item claimed by either party. The Firm’s 's determination shall will be based solely on presentations by the Purchaser and the Seller (i.e., not on independent review), and on the definition of the Net Asset Value, Total Assets included herein. The determination of the Firm shall will be conclusive and binding upon the PartiesPurchaser, the Seller and the Stockholders. The Purchaser Parent and the Seller Parent shall each bear 50% of the costs and expenses of the FirmFirm based on the percentage which the portion of the contested amount not awarded to each party bears to the amount actually contested by such party. The amount of the Total Assets, as finally determined pursuant to this Section 2.3(b), is referred to herein as the "Actual Total Assets." -------------------
Appears in 1 contract
Post-Closing Determination. Within ten sixty (1060) calendar days after the Closing Date, Seller Parent the Buyer shall deliver to Purchaser Parent true and correct copies of all financial books and records of the Sellers necessary for Purchaser Parent to prepare a Sellers' Representative the balance sheet of the Business Company as of the Closing Date for purposes close of calculating the Net Asset Value as of business on the Closing Date (the “Net Asset Value at Closing”). Within forty (40) days after receipt of such materials from the Seller Parent, the Purchaser Parent and its auditors shall prepare a balance sheet of the Business as of the Closing Date (the “"Closing Balance Sheet”) consistent "), prepared in accordance with GAAP subject to the manner of computation exceptions specifically set forth on Schedule 3.1. The Closing Balance Sheet shall set forth a calculation of the Base Net Asset Value and in conformance with GAAP for Working Capital. During the purposes preparation of determining the Net Asset Value at Closing and any resulting adjustments to the Purchase Price pursuant to Section 3.3(a)(ii) (the “Net Asset Value Post Closing Adjustment”); provided, that, the Parties acknowledge and agree that, for purposes of determining the Net Asset Value at Closing, the Parties shall disregard any increase in the accounts receivable of the Sellers between January 31, 2005 and the Closing Date resulting from a decrease in the amount of receivables sold by the Sellers between January 31, 2005 and the Closing Date. The Purchaser Parent and its auditors shall make available to the Seller Parent and its auditors all records and work papers used in preparing the Closing Balance Sheet by the Buyer and the Net Asset Value Post Closing Adjustment. If period of any dispute with respect to the Seller Parent disagrees application of this Section 3.2, the Sellers and the Seller's Representative shall cooperate with the computation of any of Buyer to the Net Asset Value at Closing reflected on extent reasonably requested by the Buyer to prepare the Closing Balance Sheet or to investigate the Net Asset Value Post basis for any dispute. The Closing AdjustmentBalance Sheet shall be examined by the Sellers' Representative, and the Seller Parent maySellers' Representative shall, within fifteen not later than sixty (1560) calendar days after receipt of the Closing Balance SheetSheet and any information and documents reasonably requested in writing by the Sellers' Representative, deliver render a notice report thereon (an “Objection Notice”the "Closing Balance Sheet Report"). The Closing Balance Sheet Report shall list those items, if any, to which the Sellers' Representative (on behalf of the Sellers) takes exception and the Sellers' Representative proposed adjustment. The Seller's Representative shall be deemed to have agreed with all other items and amounts contained in the Purchaser Parent setting forth the Seller Parent’s calculation of such Net Asset Value at Closing or such Net Asset Value Post Closing AdjustmentBalance Sheet to which no specific objection has been made. If the Seller Parent does not Sellers' Representative fails to deliver an Objection Notice to the Buyer the Closing Balance Sheet Report within sixty (60) calendar days following receipt of the Closing Balance Sheet (such fifteen sixty (1560) day periodperiod being conditioned upon all such information reasonably requested in writing by the Sellers' Representative being promptly provided to the Sellers' Representative by the Buyer), then the Net Asset Value at Closing and Net Asset Value Post Closing Adjustment Sellers shall be deemed finally determined to have accepted the Closing Balance Sheet for the purposes of any adjustment to the Purchase Price under Section 3.3. If the Buyer does not give the Sellers' Representative notice within twenty (20) calendar days following receipt of the Closing Balance Sheet Report, the Buyer shall be deemed to have accepted the Closing Balance Sheet as set forth on adjusted by the Sellers' Representative for the purposes of any adjustment to the Purchase Price under Section 3.3. If the Buyer gives the Sellers' Representative notice of objections to the Closing Balance Sheet. If , and if the Seller Parent does deliver an Objection Notice, the Purchaser Parent Sellers' Representative and the Seller Parent shall use reasonable best efforts to resolve any disagreements as to the computation of the Net Asset Value at Closing or Net Asset Value Post Closing AdjustmentBuyer are unable, as the case may be, but if they do not obtain a final resolution within thirty (30) calendar days after receipt by the Purchaser Parent has received Sellers' Representative of the Objection Noticenotice from the Buyer of objections, to resolve the Purchaser Parent disputed exceptions, such disputed exceptions shall be referred to PricewaterhouseCoopers or another firm of independent certified public accountants mutually acceptable to the Sellers' Representative and the Seller Parent shall jointly retain an independent accounting firm of recognized standing Buyer (the “"Independent Accounting Firm”) to resolve any remaining disagreements"). In any eventThe Independent Accounting Firm, a Net Asset Value Post Closing Adjustment shall be made with respect to in reviewing such amounts as are not in dispute, as set forth shall only consider those items or amounts in the Objection NoticeClosing Balance Sheet as to which the Sellers' Representative has, in the Closing Balance Sheet Report, disagreed and such other issues as may reasonably be affected by the items as to which the Sellers' Representative has disagreed in the Closing Balance Sheet Report. If The Independent Accounting Firm shall, within sixty (60) days following its selection, deliver to the Purchaser Parent Sellers' Representative and the Seller Parent are unable to agree on Buyer a written report determining the choice proper treatment of the Firm, then the Purchaser Parent’s auditors and the Seller Parent’s auditors shall jointly select a “big-four” accounting firm (or a successor) as the Firm. The Purchaser Parent and the Seller Parent shall direct the Firm to render a determination within thirty (30) days after its retention and the Purchaser Parent, the Seller Parentsuch disputed exceptions, and their respective agents shall cooperate with the Firm during its engagement. The Firm shall consider only those items and amounts set forth in the Objection Notice which the Purchaser Parent and the Seller Parent are unable to resolve. The Purchaser Parent and the Seller Parent shall each make written submissions to the Firm promptly (and in any event within twenty (20) days after the Firm’s retention), which submissions shall contain such Party’s computation of the Net Asset Value at Closing and Net Asset Value Post Closing Adjustment and information, arguments, and support for such Party’s position. The Firm shall review such submissions and base its determination solely on them. In resolving any disputed item, the 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 smallest value for such item claimed by either party. The Firm’s determination shall be based on the definition of the Net Asset Value, included herein. The determination of the Firm determinations shall be conclusive and binding upon the Partiesparties thereto (including the Sellers) for the purposes of any adjustment to the Purchase Price under Section 3.3. The Purchaser Parent fees and disbursements of the Independent Accounting Firm acting under this Section 3.2 shall be shared equally by the Buyer and the Seller Parent shall each bear 50% of the costs and expenses of the FirmSellers.
Appears in 1 contract
Samples: Purchase Agreement (West Corp)
Post-Closing Determination. Within ten sixty (1060) calendar days after the Closing Date, Seller Parent shall deliver to Purchaser Parent true and correct copies of all financial books and records Buyer, or its designee, will conduct a review of the Sellers necessary for Purchaser Parent to prepare a balance sheet of the Business as of the Closing Date for purposes of calculating the Net Asset Value as of the Closing Date (the “Net Asset Value at Closing”). Within forty (40) days after receipt of such materials from the Seller Parent, the Purchaser Parent and its auditors shall prepare a balance sheet of the Business Working Capital Amount as of the Closing Date (the “Closing Date Working Capital Amount”) and will prepare and deliver to the Seller’s Representative a balance sheet as of 12:00:01 a.m. on the Closing Date (the “Closing Date Balance Sheet”) ), together with a computation of the Closing Date Working Capital Amount and the Adjusted Closing Date Working Capital Amount (as defined below). The Closing Date Balance Sheet shall be prepared in a manner consistent with the manner of computation preparation of the Base Net Asset Value and balance sheet contained in conformance with GAAP the unaudited management reports for Seller as of March 31, 2010. The Closing Date Working Capital Amount shall be adjusted to: (i) (x) add the purposes amount of determining the Net Asset Value at Closing and any resulting adjustments net increase in net fixed assets (including notes receivables of shareholders as set forth on Annex A) of Seller from March 31, 2010 to the Purchase Price pursuant Closing Date, or (y) subtract the amount of any net decrease in net fixed assets (including notes receivables of shareholders as set forth on Annex A) of Seller from March 31, 2010 to Section 3.3(a)(iithe Closing Date, and (ii) (x) add the amount of any net decrease in long term Indebtedness of Seller from March 31, 2010 to the Closing Date or (y) subtract the amount of any net increase in long term Indebtedness of Seller from March 31, 2010 to the Closing Date (as so adjusted, (the “Net Asset Value Post Adjusted Closing AdjustmentDate Working Capital Amount”); provided, that, the Parties acknowledge . Seller and agree that, for purposes of determining the Net Asset Value at Closing, the Parties shall disregard any increase in the accounts receivable of the Sellers between January 31, 2005 and the Closing Date resulting from a decrease in the amount of receivables sold by the Sellers between January 31, 2005 and the Closing Date. The Purchaser Parent and its auditors shall Buyer will make available to the Seller Parent and its auditors Seller’s Representative all information, data, records and work papers used in preparing the Closing Date Balance Sheet and calculating the Net Asset Value Post working capital adjustment hereunder and such other records and work papers as are necessary for the Seller’s Representative to review the calculations and to resolve any disputed related thereto, including without limitation access to (and the ability to make copies of) the books and records of Seller. Buyer further agrees to make its personnel and accountants available to explain any information, data, records and work papers used in preparing the Closing AdjustmentDate Balance Sheet and calculating the working capital adjustment hereunder. If the Seller Parent Seller’s Representative disagrees with the computation of any of the Net Asset Value at Adjusted Closing Date Working Capital Amount or the items reflected on the Closing Date Balance Sheet or the Net Asset Value Post Closing AdjustmentSheet, the Seller Parent Seller’s Representative may, within fifteen thirty (1530) calendar days after receipt of the Closing Date Balance Sheet, deliver a notice (an a “Working Capital Objection Notice”) to Buyer identifying with reasonable specificity those items of the Purchaser Parent Closing Date Balance Sheet prepared by Buyer to which the Seller’s Representative is objecting and the amounts with respect thereto that the Seller’s Representative asserts to be the correct amounts and setting forth the Seller ParentSeller’s Representative’s calculation of such Net Asset Value at the Adjusted Closing or such Net Asset Value Post Closing AdjustmentDate Working Capital Amount. If the Seller Parent Seller’s Representative does not deliver an a Working Capital Objection Notice within such fifteen thirty (1530) calendar day period, then the Net Asset Value at Adjusted Closing and Net Asset Value Post Closing Adjustment Date Working Capital Amount shall be deemed to be finally determined to be as set forth on the Closing Balance Sheetamount calculated by Buyer. If the Seller Parent does deliver an Seller’s Representative timely delivers a Working Capital Objection NoticeNotice to Buyer, the Purchaser Parent Seller’s Representative and the Seller Parent shall Buyer will use reasonable best efforts to resolve any disagreements disagreement as to the computation of the Net Asset Value at Adjusted Closing or Net Asset Value Post Closing Adjustment, Date Working Capital Amount as the case may besoon as practicable, but if they do cannot obtain reach a final resolution within thirty (30) calendar days after the Purchaser Parent Buyer has received the Working Capital Objection Notice, the Purchaser Parent Buyer and the Seller Parent shall Seller’s Representative will jointly retain an a mutually agreeable independent accounting firm of recognized national standing (the “Working Capital Firm”) to resolve any remaining disagreements. In any event, a Net Asset Value Post Closing Adjustment shall be made with respect to such amounts as are not in dispute, as set forth in the Objection Noticetheir disagreement. If the Purchaser Parent Buyer and the Seller Parent Seller’s Representative are unable to agree on the choice of the Working Capital Firm, then the Purchaser ParentWorking Capital Firm will be an independent accounting firm of recognized national standing selected by lot (after excluding one firm designated by Buyer and one firm designated by the Seller’s auditors Representative). Buyer and the Seller ParentSeller’s auditors shall jointly select a “big-four” accounting firm (or a successor) as the Firm. The Purchaser Parent and the Seller Parent shall Representative will direct the Working Capital Firm to render a determination within thirty as promptly as practicable but in no event later than forty-five (3045) calendar days after of its retention retention. Buyer and the Purchaser Parent, the Seller Parent, Seller’s Representative and their respective agents shall will cooperate fully with the Working Capital Firm during its engagementengagement to facilitate its resolution of the remaining disputes, including by providing the information, data, records, and work papers used by each party to calculate the adjustment amount due and the remaining disputes, and making its personnel and accountants available to explain any such information, data, records, or work papers. The Working Capital Firm shall will consider only those items and amounts in the Closing Date Balance Sheet set forth in the Working Capital Objection Notice which the Purchaser Parent Buyer and the Seller Parent Seller’s Representative are unable to resolve. The Purchaser Parent and the Seller Parent shall each make written submissions to the Firm promptly (and in any event within twenty (20) days after the Firm’s retention), which submissions shall contain such Party’s computation of the Net Asset Value at Closing and Net Asset Value Post Closing Adjustment and information, arguments, and support for such Party’s position. The Firm shall review such submissions and base its determination solely on them. In resolving any disputed item, the Working Capital 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 smallest value for such item claimed by either party. The Working Capital Firm’s determination shall will be based on such review as the Working Capital Firm deems necessary to make its determination, and on the definition of the Net Asset Value, Adjusted Closing Date Working Capital Amount included herein. The determination of the Adjusted Closing Date Working Capital Amount by the Working Capital Firm shall will be conclusive and binding upon Buyer, the PartiesSeller’s Representative and Seller, in the absence of fraud or manifest error. The Purchaser Parent Each of the parties shall bear its own costs and expenses in connection with the Seller Parent work of the Working Capital Firm. Buyer, on the one hand, and Seller, on the other hand, shall each bear 50% of the costs and expenses of the FirmWorking Capital Firm based on the percentage which the portion of the contested amount not awarded to each party bears to the amount actually contested by or on behalf of such party. The Adjusted Closing Date Working Capital Amount, as finally determined pursuant to this Section 1.6(b), is referred to herein as the “Actual Closing Date Working Capital Amount.”
Appears in 1 contract
Samples: Asset Purchase Agreement (Mine Safety Appliances Co)
Post-Closing Determination. Within ten (10) Not later than 60 calendar days after the Closing Date, Seller Parent the Buyer shall deliver to Purchaser Parent true and correct copies of all financial books and records of the Sellers necessary for Purchaser Parent to prepare a Seller the consolidated balance sheet of the Business Companies and Southland as of the opening of business on the Closing Date for purposes of calculating the Net Asset Value as Date, assuming repayment of the Closing Date notes referred to in Section 2.2 (the “Net Asset Value at Closing”). Within forty (40) days after receipt of such materials from the Seller Parent, the Purchaser Parent and its auditors shall prepare a balance sheet of the Business as of the Closing Date (the “"Closing Balance Sheet”) "), prepared in accordance with GAAP, applied on a basis consistent with, and following the accounting principles, procedures, policies and methods employed in preparing, the June 30, 2004 Balance Sheet (including without limitation with respect to the manner of computation of reserves) and reflecting the Base Net Asset Value and in conformance with GAAP for the purposes results of determining the Net Asset Value at Closing and any resulting adjustments an inventory count to the Purchase Price pursuant to Section 3.3(a)(ii) (the “Net Asset Value Post Closing Adjustment”); provided, that, the Parties acknowledge and agree that, for purposes of determining the Net Asset Value at Closing, the Parties shall disregard any increase in the accounts receivable of the Sellers between January 31, 2005 and the Closing Date resulting from a decrease in the amount of receivables sold be completed by the Sellers between January 31, 2005 and Seller as soon as practicable prior to the Closing Date. The Purchaser Parent and its auditors Closing Balance Sheet shall make available to set forth a calculation of the Seller Parent and its auditors all records and work papers used in preparing Net Assets. During the preparation of the Closing Balance Sheet by the Buyer and the Net Asset Value Post Closing Adjustment. If period of any dispute with respect to the application of this Section 3.2, the Seller Parent disagrees shall cooperate with the computation of any of Buyer to the Net Asset Value at Closing reflected on extent reasonably requested by the Buyer to prepare the Closing Balance Sheet or to investigate the Net Asset Value Post basis for any dispute. The Closing AdjustmentBalance Sheet shall be examined by the Seller, and the Seller Parent mayshall, within fifteen (15) not later than 30 calendar days after receipt of the Closing Balance Sheet, deliver render a notice report thereon (an “Objection Notice”) the "Closing Balance Sheet Report"). The Closing Balance Sheet Report shall list those items, if any, to the Purchaser Parent setting forth which the Seller Parent’s calculation of such Net Asset Value at Closing or such Net Asset Value Post Closing Adjustmenttakes exception and the Seller's proposed adjustment. If the Seller Parent does not fails to deliver an Objection Notice to the Buyer the Closing Balance Sheet Report within such fifteen (15) day period, then the Net Asset Value at Closing and Net Asset Value Post Closing Adjustment shall be deemed finally determined to be as set forth on 30 calendar days following receipt of the Closing Balance Sheet, the Seller shall be deemed to have accepted the Closing Balance Sheet for the purposes of any adjustment to the Cash Purchase Price under Section 3.3. If the Buyer does not give the Seller Parent does deliver an Objection Noticenotice within 20 calendar days following receipt of the Closing Balance Sheet Report, the Purchaser Parent and Buyer shall be deemed to have accepted the Closing Balance Sheet as adjusted by the Seller Parent shall use reasonable best efforts to resolve for the purposes of any disagreements as adjustment to the computation of the Net Asset Value at Closing or Net Asset Value Post Closing Adjustment, as the case may be, but if they do not obtain a final resolution within thirty (30) days after the Purchaser Parent has received the Objection Notice, the Purchaser Parent and the Seller Parent shall jointly retain an independent accounting firm of recognized standing (the “Firm”) to resolve any remaining disagreements. In any event, a Net Asset Value Post Closing Adjustment shall be made with respect to such amounts as are not in dispute, as set forth in the Objection NoticeCash Purchase Price under Section 3.3. If the Purchaser Parent Buyer gives the Seller notice of objections to the Closing Balance Sheet Report, and if the Seller and the Buyer are unable, within 15 calendar days after receipt by the Seller Parent are unable to agree on the choice of the notice from the Buyer of objections, to resolve the disputed exceptions, such disputed exceptions will be referred to Xxxxx Xxxxxxxx or another firm of independent certified public accountants ("Independent Accounting Firm, then ") mutually acceptable to the Purchaser Parent’s auditors Seller and the Seller Parent’s auditors shall jointly select a “big-four” accounting firm (or a successor) as the FirmBuyer. The Purchaser Parent Independent Accounting Firm shall, within 60 days following its selection, deliver to the Seller and the Seller Parent shall direct the Firm to render Buyer a determination within thirty (30) days after its retention and the Purchaser Parent, the Seller Parentwritten report determining such disputed exceptions, and their respective agents shall cooperate its determinations with the Firm during its engagement. The Firm shall consider only those items and amounts set forth in the Objection Notice which the Purchaser Parent and the Seller Parent are unable to resolve. The Purchaser Parent and the Seller Parent shall each make written submissions to the Firm promptly (and in any event within twenty (20) days after the Firm’s retention), which submissions shall contain such Party’s computation of the Net Asset Value at Closing and Net Asset Value Post Closing Adjustment and information, arguments, and support for such Party’s position. The Firm shall review such submissions and base its determination solely on them. In resolving any disputed item, the 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 smallest value for such item claimed by either party. The Firm’s determination shall be based on the definition of the Net Asset Value, included herein. The determination of the Firm respect thereto shall be conclusive and binding upon the Partiesparties hereto for the purposes of any adjustment to the Cash Purchase Price under Section 3.3. The Purchaser Parent fees and disbursements of the Independent Accounting Firm shall be shared equally by the Buyer, on the one hand, and the Seller Parent shall each bear 50% of Seller, on the costs and expenses of the Firmother hand.
Appears in 1 contract
Samples: Securities Purchase Agreement (Mueller Industries Inc)
Post-Closing Determination. Within ten (10) days after the Closing Date, Seller Parent shall deliver to Purchaser Parent true and correct copies of all financial books and records of the Sellers necessary for Purchaser Parent to prepare a balance sheet of the Business as of the Closing Date for purposes of calculating the Net Asset Value as of the Closing Date (the “Net Asset Value at Closing”). Within forty (40) days after receipt of such materials from the Seller Parent, the Purchaser Parent and its auditors shall prepare a balance sheet of the Business as of the Closing Date (the “Closing Balance Sheet”) consistent with the manner of computation of the Base Net Asset Value and in conformance with GAAP for the purposes of determining the Net Asset Value at Closing and any resulting adjustments to the Purchase Price pursuant to Section 3.3(a)(ii) (the “Net Asset Value Post Closing Adjustment”); provided, that, the Parties acknowledge and agree that, for purposes of determining the Net Asset Value at Closing, the Parties shall disregard any increase in the accounts receivable of the Sellers between January 31, 2005 and the Closing Date resulting from a decrease in the amount of receivables sold by the Sellers between January 31, 2005 and the Closing Date. The Purchaser Parent and its auditors shall make available to the Seller Parent and its auditors all records and work papers used in preparing the Closing Balance Sheet and the Net Asset Value Post Closing Adjustment. If the Seller Parent disagrees with the computation of any of the Net Asset Value at Closing reflected on the Closing Balance Sheet or the Net Asset Value Post Closing Adjustment, the Seller Parent may, within fifteen (15) days after receipt of the Closing Balance Sheet, deliver a notice (an “Objection Notice”) to the Purchaser Parent setting forth the Seller Parent’s calculation of such Net Asset Value at Closing or such Net Asset Value Post Closing Adjustment. If the Seller Parent does not deliver an Objection Notice within such fifteen (15) day period, then the Net Asset Value at Closing and Net Asset Value Post Closing Adjustment shall be deemed finally determined to be as set forth on the Closing Balance Sheet. If the Seller Parent does deliver an Objection Notice, the Purchaser Parent and the Seller Parent shall use reasonable best efforts to resolve any disagreements as to the computation of the Net Asset Value at Closing or Net Asset Value Post Closing Adjustment, as the case may be, but if they do not obtain a final resolution within thirty (30) days after the Purchaser Parent has received WC Determination Date, Buyer shall prepare a statement setting forth the Objection Notice, Working Capital as of the Purchaser Parent and close of business on the Seller Parent shall jointly retain an independent accounting firm of recognized standing WC Determination Date (the “Firm”) to resolve "Closing Working Capital" ). During the period of any remaining disagreements. In any event, a Net Asset Value Post Closing Adjustment shall be made dispute with respect to the application of this Section 2.3, Buyer shall provide Seller full access to the books, records, facilities and employees of Buyer, and shall cooperate with Seller to the extent reasonably requested by Seller to investigate the basis for such amounts as are not in dispute. Not later than thirty (30) calendar days after receipt of the Closing Working Capital statement, as set forth in Seller shall provide Buyer with a list of those items, if any, to which Seller takes exception and Seller's proposed adjustments (the Objection Notice"Proposed Adjustments" ). If Seller fails to deliver to Buyer the Purchaser Parent and the Seller Parent are unable to agree on the choice Proposed Adjustments within thirty (30) calendar days following receipt of the Closing Working Capital statement, Seller shall be deemed to have accepted the Closing Working Capital statement for the purposes of any Purchase Price adjustment under Section 2.3(c) hereof. Any items not disputed shall be deemed to be accepted and agreed to by Seller. If Buyer does not give Seller notice of objections within ten (10) calendar days following receipt of the Proposed Adjustments, Buyer shall be deemed to have accepted the Proposed Adjustments for the purposes of any Purchase Price adjustment under Section 2.3(c) hereof. Any items not disputed shall be deemed to be accepted and agreed to by Buyer. If Buyer gives Seller notice of objections to the Proposed Adjustments, and if Buyer and Seller are unable, within five (5) calendar days after receipt by Seller of the notice by Buyer of objections, to resolve the disputed exceptions, such disputed exceptions will be referred to a firm of independent certified public accountants ("Independent Accounting Firm, then the Purchaser Parent’s auditors " ) mutually acceptable to Buyer and the Seller Parent’s auditors shall jointly select a “big-four” accounting firm (or a successor) as the FirmSeller. The Purchaser Parent and the Seller Parent shall direct the Independent Accounting Firm to render a determination shall, within thirty (30) days after following its retention selection, deliver to Buyer and the Purchaser Parent, the Seller Parenta written report determining such disputed exceptions, and their respective agents shall cooperate with the Firm during its engagement. The Firm shall consider only those items and amounts set forth in the Objection Notice which the Purchaser Parent and the Seller Parent are unable to resolve. The Purchaser Parent and the Seller Parent shall each make written submissions to the Firm promptly (and in any event within twenty (20) days after the Firm’s retention), which submissions shall contain such Party’s computation of the Net Asset Value at Closing and Net Asset Value Post Closing Adjustment and information, arguments, and support for such Party’s position. The Firm shall review such submissions and base its determination solely on them. In resolving any disputed item, the 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 smallest value for such item claimed by either party. The Firm’s determination shall be based on the definition of the Net Asset Value, included herein. The determination of the Firm shall determinations will be conclusive and binding upon the Partiesparties thereto for the purposes of any Purchase Price adjustment under Section 2.3(c) hereof. The Purchaser Parent fees and the Seller Parent shall each bear 50% disbursements of the costs Independent Accounting Firm acting under this Section shall be shared equally by Buyer and expenses of the FirmSeller.
Appears in 1 contract
