Adjustment Amount. (a) As soon as reasonably practicable following the Closing Date, and in any event within sixty (60) calendar days thereof, Buyer shall prepare and deliver to the Holder Representative (A) an unaudited consolidated balance sheet of the Company and its Subsidiaries (provided that such balance sheet may omit information concerning shareholders equity) (the “Closing Balance Sheet”) and (B) a closing statement (together with the Closing Balance Sheet, the “Closing Statements”), setting forth (i) a calculation of Net Working Capital (“Closing Date Net Working Capital”), (ii) a calculation of the aggregate amount of all Funded Debt of the Company (“Closing Date Funded Debt”), (iii) a calculation of the aggregate amount of all Transaction Expenses (“Closing Transaction Expenses”), and (iv) a calculation of Cash of the Company (“Closing Date Cash”), in each case, calculated as of the Measurement Time (provided, however, that (x) Accrued Income Taxes taken into account in the calculation of Closing Date Funded Debt shall be determined as of the end of the day on the Closing Date and (y) for purposes of determining the amount of Closing Transaction Expenses, such amount shall be determined as of immediately prior to the Closing). The Closing Statements shall each be prepared in accordance with GAAP, applied in a manner consistent with the principles, to the extent in conformity with GAAP applied in connection with the preparation of the most recent audited balance sheet included in the Financial Statements (the “Reference Balance Sheet”) using the same accounting practices, policies, judgments and methodologies used in the preparation of the Reference Balance Sheet; provided, however, that (I) the Closing Statements shall reflect no new reserves or increase in existing reserves (regardless of whether any such reserve is recorded as an offset to a current asset’s carrying value or is included as an accrued liability in the Closing Balance Sheet) from amounts contained in the Reference Balance Sheet, other than changes therein attributable to changes in facts and circumstances occurring after the date of the Reference Balance Sheet, (II) except as set forth in the following clause (IV), the Pre-Closing Statement and the Closing Statements shall not give effect to any payments of cash in respect of the Merger Consideration or any Buyer financing transactions in connection therewith or, after the Effective Time, any other action or omission by Buyer, the Surviving Corporation or any of its Subsidiaries that is not in the ordinary course of business, (III) the Pre-Closing Statement and the Closing Statements shall not reflect any expense or liability for which Buyer is responsible under this Agreement and (IV) the Pre-Closing Statement and the Closing Statements shall include the effects of the Transaction Tax Deductions. Following the Closing, Buyer shall provide the Holder Representative and its representatives such reasonable access during normal business hours and upon reasonable advance notice, to the records, properties, personnel and (subject to the execution of customary work paper access letters if requested) auditors of the Company and its Subsidiaries relating to the preparation of the Closing Statements as reasonably requested by the Holder Representative and shall cause the personnel of the Company and its Subsidiaries to reasonably cooperate with the Holder Representative in connection with its review of the Closing Statements as reasonably requested by the Holder Representative.
Appears in 1 contract
Adjustment Amount. (a) As soon as reasonably practicable following the Closing Date, and in any event within sixty seventy-five (6075) calendar days thereof, Buyer Acquiror shall prepare and deliver to the Holder Representative (Ai) an unaudited consolidated balance sheet of the Company and its Subsidiaries (provided that such balance sheet may omit information concerning shareholders equity) (the “Closing Balance Sheet”) and (B) a closing statement (together with the Closing Balance Sheet, the “Closing Statements”), setting forth (iii) a calculation of Net Working Capital (“Closing Date Net Working Capital”), (ii) a calculation of prepared in accordance with the aggregate amount of all Funded Debt of the Company (“Closing Date Funded Debt”)NWC Methodology, (iii) a calculation of the aggregate amount of all Transaction Expenses Indebtedness of the Company (“Closing Transaction ExpensesDate Indebtedness”), and (iv) a calculation of Cash and Cash Equivalents of the Company (“Closing Date Cash”), and (v) a calculation of unpaid and accrued Transaction Expenses (“Closing Date Unpaid Transaction Expenses”), in each case, calculated as of the Measurement 12:01 a.m. Pacific Time (provided, however, that (x) Accrued Income Taxes taken into account in the calculation of Closing Date Funded Debt shall be determined as of the end of the day on the Closing Date and (y) for purposes of determining the amount of Closing Transaction Expenses, provided that Taxes included in such amount calculation shall be determined calculated as of immediately prior 11:59 p.m. Pacific Time on the Closing Date but shall exclude any Taxes incurred as a result of any actions set forth in the proviso to Section 8.2(a)(iv)) consistent (except as provided in this Section 3.4(a)) with the Closing Balance Sheet without giving effect to the Closingconsummation of the Merger or any financing transactions in connection therewith or, after the Effective Time, any other action or omission by Acquiror, the Surviving Corporation or any of its Subsidiaries that is not in the ordinary course of business consistent with past practice (provided that Taxes included in such calculation shall be calculated as of 11:59 p.m. Pacific Time on the Closing Date but shall exclude any Taxes incurred as a result of any actions set forth in the proviso to Section 8.2(a)(iv)). The Closing Statements Balance Sheet shall each be prepared in accordance with GAAP, GAAP applied in a manner consistent with the accounting principles, to the extent in conformity with GAAP practices and methodologies applied in connection with the preparation of the most recent audited balance sheet included in the Financial Statements (the “Reference Balance Sheet”) using ). For the same accounting practices, policies, judgments and methodologies used in the preparation purpose of the Reference Balance Sheet; provided, however, that (I) the determining Closing Statements shall reflect no new reserves or increase in existing reserves (regardless of whether any such reserve is recorded as an offset to a current asset’s carrying value or is included as an accrued liability in the Closing Balance Sheet) from amounts contained in the Reference Balance Sheet, other than changes therein attributable to changes in facts and circumstances occurring after the date of the Reference Balance Sheet, (II) except as set forth in the following clause (IV)Date Net Working Capital, the Pre-Closing Statement consolidated current assets and the Closing Statements shall not give effect to any payments of cash in respect of the Merger Consideration or any Buyer financing transactions in connection therewith or, after the Effective Time, any other action or omission by Buyer, the Surviving Corporation or any of its Subsidiaries that is not in the ordinary course of business, (III) the Pre-Closing Statement and the Closing Statements shall not reflect any expense or liability for which Buyer is responsible under this Agreement and (IV) the Pre-Closing Statement and the Closing Statements shall include the effects of the Transaction Tax Deductions. Following the Closing, Buyer shall provide the Holder Representative and its representatives such reasonable access during normal business hours and upon reasonable advance notice, to the records, properties, personnel and (subject to the execution of customary work paper access letters if requested) auditors current liabilities of the Company and its Subsidiaries relating to shall exclude the preparation value of the Closing Statements as reasonably requested by the Holder Representative and shall cause the personnel of the Company and its Subsidiaries to reasonably cooperate with the Holder Representative in connection with its review of the Closing Statements as reasonably requested by the Holder Representativeall Transaction Expenses.
Appears in 1 contract
Samples: Agreement and Plan of Merger (SMART Global Holdings, Inc.)
Adjustment Amount. (a) As soon as reasonably practicable following the Closing Date, and in any event within sixty (60) calendar days thereof, Buyer shall prepare and deliver to the Holder Representative (Ai) an unaudited consolidated balance sheet of the Company and its Subsidiaries (provided that such balance sheet may omit information concerning shareholders equity) (the “Closing Balance Sheet”) and (B) a closing statement (together with the Closing Balance Sheet, the “Closing Statements”), setting forth (iii) a calculation of Net Working Capital (“Closing Date Net Working Capital”), (iiiii) a calculation of the aggregate amount of all Funded Debt of the Company (“Closing Date Funded Debt”), (iii) a calculation of the aggregate amount of all Transaction Expenses (“Closing Transaction Expenses”), and (iv) a calculation of Cash of the Company (“Closing Date Cash”) and (v) a calculation of the Transaction Expenses (“Closing Date Transaction Expenses”), in each case, calculated as of the Measurement Reference Time (providedand, however, that (x) Accrued Income Taxes taken into account with respect to the calculations described in the calculation of Closing Date Funded Debt shall be determined foregoing clauses (ii)-(v) (except as of the end of the day on provided in this Section 3.4(a)), consistent with the Closing Date and (y) for purposes of determining the amount of Closing Transaction Expenses, such amount shall be determined as of immediately prior to the Closing)Balance Sheet. The Closing Statements Balance Sheet shall each be prepared in accordance with GAAP, GAAP applied in a manner consistent (except as provided in this Section 3.4(a)) with the principles, to the extent in conformity with GAAP principles applied in connection with the preparation of the most recent audited balance sheet included in the Financial Statements (the “Reference Balance Sheet”); provided, however, that (x) except as set forth in clause (y), the Closing Balance Sheet shall be prepared using the same accounting practices, policies, judgments and methodologies used in the preparation of the Reference Balance Sheet; provided, however, that Sheet and (y) (I) the Closing Statements Balance Sheet shall reflect no new reserves or increase changes in existing reserves (regardless of whether any such reserve is recorded as an offset to a current asset’s carrying value or is included as an accrued liability in the Closing Balance Sheet) from amounts contained in the Reference Balance Sheet, other than changes therein (A) attributable to changes in facts and circumstances occurring after the date of the Reference Balance Sheet or (B) required to reflect facts as of the date of the Reference Balance Sheet, but in this clause (B) solely to extent the reserves in the Reference Balance Sheet reflected underlying errors of fact (and not due to differences in judgments or principles applied), (II) except the treatment of leases as set forth capital leases or operating leases shall be identical to their treatment in the following clause (IV), the Pre-Closing Statement and the Closing Statements shall not give effect to any payments of cash in respect of the Merger Consideration or any Buyer financing transactions in connection therewith or, after the Effective Time, any other action or omission by Buyer, the Surviving Corporation or any of its Subsidiaries that is not in the ordinary course of businessReference Balance Sheet, (III) the Pre-Closing Statement and the Closing Statements Balance Sheet shall not reflect any expense or liability for which Buyer is responsible under this Agreement and Agreement, (IV) notwithstanding anything to the Pre-Closing Statement and contrary in this Agreement (including the definition of Funded Debt), if the Notes are not redeemed by the Issuers on the Closing Statements shall include Date, for the effects purposes of defining and calculating the Closing Date Funded Debt, the aggregate amount due and owing in respect of the Transaction Tax Deductions. Following Notes (or Indenture) shall be deemed to be an amount equal only to (A) the Closingaggregate principal amount of the Notes, Buyer shall provide as applicable, then outstanding, plus (B) all accrued and unpaid interest, if any, on the Holder Representative and its representatives such reasonable access during normal business hours and upon reasonable advance noticeNotes, to the recordsas applicable, properties, personnel then outstanding and (subject to the execution of customary work paper access letters if requestedV) auditors of the Company and its Subsidiaries relating to the preparation of the Closing Statements as reasonably requested Balance Sheet shall not reflect any income Tax assets, except that current income Tax liabilities included in the calculation of Closing Date Net Working Capital shall take into account and be reduced (but not below zero) by the Holder Representative and shall cause the personnel of the Company and its Subsidiaries to reasonably cooperate with the Holder Representative in connection with its review of the Closing Statements as reasonably requested by the Holder Representative.current income
Appears in 1 contract
Samples: Agreement and Plan of Merger (United Rentals North America Inc)
Adjustment Amount. (a) As soon as reasonably practicable following (i) No later than five Business Days prior to the Closing Date, and in any event within sixty (60) calendar days thereof, Buyer the Company shall prepare and deliver to Buyer: a statement (“Estimated Closing Statement”) setting forth the Holder Representative Company’s good faith estimate of: (A) an unaudited consolidated balance sheet of the Company and its Subsidiaries (provided that such balance sheet may omit information concerning shareholders equity) (the “Closing Balance Sheet”) and (B) a closing statement (together with the Closing Balance Sheet, the “Closing Statements”), setting forth (i) a calculation of Net Working Capital (such estimate, “Estimated Closing Date Net Working Capital”); (B) the Closing Cash (such estimate, (ii) a calculation of the aggregate amount of all Funded Debt of the Company (“Estimated Closing Date Funded DebtCash”); (C) the Closing Indebtedness (such estimate, “Estimated Closing Indebtedness”); (iiiD) a calculation of the aggregate amount of all Transaction Expenses (“Closing Transaction ExpensesCosts (such estimate, “Estimated Closing Transaction Costs”); (E) the Net Tax Adjustment (such estimate, “Estimated Net Tax Adjustment”); and (ivF) a calculation the Closing Merger Consideration. The Estimated Closing Statement shall also include instructions that identify the bank accounts designated to facilitate direct payment by Buyer of Cash of (x) the Company Debt Payoff Amount and (“y) the Estimated Closing Date Cash”Transaction Costs (including any such amounts to be paid in accordance with Section 5.17), in each case, calculated as to the applicable payees on behalf of the Measurement Time (provided, however, that (x) Accrued Income Taxes taken into account in the calculation of Company Entities. The Estimated Closing Date Funded Debt Statement shall be determined as of the end of the day on the Closing Date prepared and (y) for purposes of determining the amount of Closing Transaction Expenses, such amount shall be determined as of immediately prior to the Closing). The Closing Statements shall each be prepared in accordance with GAAP, applied calculated in a manner consistent with the principlesapplicable definitions contained in this Agreement, the Sample Calculation and in accordance with the Accounting Principles and shall include a reasonably detailed summary of the calculations made to the extent in conformity with GAAP applied arrive at such amounts. The Company shall provide to Buyer such supporting documentation in connection with the preparation and the calculation of the most recent audited balance sheet included amounts set forth in the Financial Statements (the “Reference Balance Sheet”) using the same accounting practicesEstimated Closing Statement as Buyer may reasonably request, policies, judgments and methodologies used shall cooperate with Buyer in the preparation its review and evaluation of the Reference Balance Sheet; provided, however, that (I) Estimated Closing Statement. The Company shall consider in good faith Buyer’s comments to the Estimated Closing Statement and shall revise the Estimated Closing Statement by no later than two Business Days prior to the Closing Statements Date if, based on its good faith assessment of Buyer’s comments, the Company determines such changes are warranted, which revised statement and revised calculations shall reflect no new reserves or increase in existing reserves become the applicable Estimated Closing Statement and the Estimated Closing Working Capital, Estimated Closing Cash, Estimated Closing Indebtedness, Estimated Closing Transaction Costs and Estimated Net Tax Adjustment reflected therein, as applicable. Estimated Closing Working Capital, Estimated Closing Cash, Estimated Closing Indebtedness, Estimated Closing Transaction Costs and Estimated Net Tax Adjustment (regardless of whether any such reserve is recorded as an offset to a current asset’s carrying value or is included as an accrued liability in the Closing Balance Sheet) from amounts contained in the Reference Balance Sheet, other than changes therein attributable to changes in facts and circumstances occurring after the date of the Reference Balance Sheet, (II) except as set forth in the following clause (IV), the Pre-Estimated Closing Statement and delivered by the Company to Buyer) shall be binding on the Parties for the purposes of determining the Closing Statements shall not give effect to any payments of cash in respect of the Merger Consideration or any Buyer financing transactions in connection therewith or, after the Effective Time, any other action or omission by Buyer, the Surviving Corporation or any of its Subsidiaries that is not in the ordinary course of business, (III) the Pre-Closing Statement and the Closing Statements shall not reflect any expense or liability for which Buyer is responsible under this Agreement and (IV) the Pre-Closing Statement and the Closing Statements shall include the effects of the Transaction Tax Deductions. Following the Closing, Buyer shall provide the Holder Representative and its representatives such reasonable access during normal business hours and upon reasonable advance notice, to the records, properties, personnel and (subject to the execution of customary work paper access letters if requested) auditors of the Company and its Subsidiaries relating to the preparation of the Closing Statements as reasonably requested by the Holder Representative and shall cause the personnel of the Company and its Subsidiaries to reasonably cooperate with the Holder Representative in connection with its review of the Closing Statements as reasonably requested by the Holder RepresentativeConsideration.
Appears in 1 contract
Samples: Agreement and Plan of Merger (US Foods Holding Corp.)
Adjustment Amount. (a) As soon as reasonably practicable following the Closing Date, and in any event within sixty (60) calendar days thereof, Buyer Acquiror shall prepare and deliver to the Holder Representative (Ai) an unaudited consolidated balance sheet of the Company and its Subsidiaries (provided that such balance sheet may omit information concerning shareholders equity) (the “Closing Balance Sheet”) and (B) a closing statement (together with the Closing Balance Sheet, the “Closing Statements”), setting forth (iii) a calculation of Net Working Capital (“Closing Date Net Working Capital”), (ii) a calculation of prepared in accordance with the aggregate amount of all Funded Debt of the Company (“Closing Date Funded Debt”)NWC Methodology, (iii) a calculation of the aggregate amount of all Transaction Expenses Indebtedness of the Company (“Closing Transaction ExpensesDate Indebtedness”), and (iv) a calculation of Cash and Cash Equivalents of the Company (“Closing Date Cash”), and (v) a calculation of unpaid and accrued Transaction Expenses (“Closing Date Unpaid Transaction Expenses”), in each case, calculated as of the Measurement Time (provided, however, that (x) Accrued Income Taxes taken into account in the calculation close of Closing Date Funded Debt shall be determined as of the end of the day business on the Closing Date and consistent (yexcept as provided in this Section 3.4(a)) for purposes of determining with the amount of Closing Transaction Expenses, such amount shall be determined as of immediately prior Balance Sheet without giving effect to the Closing)consummation of the Merger or any financing transactions in connection therewith or, after the Effective Time, any other action or omission by Acquiror, the Surviving Corporation or any of its Subsidiaries that is not in the ordinary course of business consistent with past practice. The Closing Statements Balance Sheet shall each be prepared in accordance with GAAP, applied in a manner consistent with the principles, to the extent in conformity with GAAP principles applied in connection with the preparation of the most recent audited balance sheet included in the Financial Statements (the “Reference Balance Sheet”); provided, however, that (x) except as set forth in clause (y), the Closing Balance Sheet shall be prepared using the same accounting practices, policies, judgments and methodologies used in the preparation of the Reference Balance Sheet; provided, however, that Sheet and (Iy) the Closing Statements Balance Sheet shall reflect no new reserves or increase changes in existing reserves (regardless of whether any such reserve is recorded as an offset to a current asset’s carrying value or is included as an accrued liability in the Closing Balance Sheet) from amounts contained in the Reference Balance Sheet, other than changes therein attributable to changes in facts and circumstances occurring after the date of the Reference Balance Sheet, (II) except as set forth in the following clause (IV), the Pre-Closing Statement and the Closing Statements shall not give effect to any payments of cash in respect of the Merger Consideration or any Buyer financing transactions in connection therewith or, after the Effective Time, any other action or omission by Buyer, the Surviving Corporation or any of its Subsidiaries that is not in the ordinary course of business, (III) the Pre-Closing Statement and the Closing Statements shall not reflect any expense or liability for which Buyer is responsible under this Agreement and (IV) the Pre-Closing Statement and the Closing Statements shall include the effects of the Transaction Tax Deductions. Following the Closing, Buyer Acquiror shall provide the Holder Representative and its representatives such reasonable access during normal business hours and upon reasonable advance notice, to the records, properties, personnel and (subject to the execution of customary work paper access letters if requested) auditors of the Company and its Subsidiaries relating to the preparation of the Closing Statements as reasonably requested by the Holder Representative Balance Sheet and shall cause the personnel of the Company and its Subsidiaries to reasonably cooperate with the Holder Representative in connection with its review of the Closing Statements as reasonably requested by Balance Sheet. For the Holder Representativepurpose of determining Closing Date Net Working Capital, the consolidated current assets and current liabilities of the Company and its Subsidiaries shall exclude the value of all Transaction Expenses.
Appears in 1 contract
Samples: Agreement and Plan of Merger (GP Investments Acquisition Corp.)
Adjustment Amount. (a) As soon as reasonably practicable following the Closing Date, and in any event within sixty ninety (6090) calendar days thereof, Buyer shall prepare and deliver to the Holder Representative a certificate of the Company’s chief executive officer setting forth (Ai) an unaudited consolidated balance sheet of the Company and its Subsidiaries (provided that such balance sheet may omit information concerning shareholders equity) as of the Calculation Time (the “Closing Balance Sheet”) and (B) a closing statement (together with the Closing Balance Sheet, the “Closing Statements”), setting forth (iii) a calculation of Net Working Capital as of the Calculation Time (“Closing Date Net Working Capital”), (iiiii) a calculation of the aggregate amount of all Funded Debt of the Company as of immediately prior to the Effective Time (“Closing Date Funded Debt”), (iii) a calculation of the aggregate amount of all Transaction Expenses (“Closing Transaction Expenses”), and (iv) a calculation of Cash of the Company as of the Calculation Time (“Closing Date Cash”), in each case, calculated as (v) a calculation of the Measurement Time (provided, however, that (x) Accrued Income Taxes taken into account in the calculation of Closing Date Funded Debt shall be determined as of the end of the day on the Closing Date and (y) for purposes of determining the amount of Closing unpaid Company Transaction Expenses, such amount shall be determined Expenses as of immediately prior to the ClosingEffective Time (including, for the avoidance of doubt, any such amounts triggered at the Effective Time by the consummation of the Merger) (“Closing Date Expenses”) and (vi) a calculation of the Adjustment Amount and the Final Merger Consideration resulting therefrom, consistent (except as provided in this Section 3.6(a)) with GAAP, the definitions set forth in this Agreement and the Closing Balance Sheet. The Estimated Closing Statements Date Net Working Capital and the Closing Date Net Working Capital calculations shall each be prepared in accordance with the definition of Net Working Capital and shall include a calculation of each line item set forth on the schedule attached to the Adjustment Principles. The Estimated Closing Balance Sheet and the Closing Balance Sheet shall be prepared in accordance with GAAP and, to the extent in accordance with GAAP, applied in a manner consistent with the principles, to the extent in conformity with GAAP principles applied in connection with the preparation of the most recent audited balance sheet included in the Financial Statements (the “Reference Balance Sheet”); provided, however, that (x) except as set forth in clause (y) the Estimated Closing Balance Sheet and the Closing Balance Sheet shall be prepared using the same accounting practices, policies, judgments and methodologies used in the preparation of the Reference Balance Sheet; providedSheet (including, howeverto the extent in accordance with GAAP, that the methodologies used in calculating reserves therein) and (y) the Estimated Closing Balance Sheet and the Closing Balance Sheet (I) the Closing Statements shall reflect no new reserves or increase in existing reserves (regardless of whether any such reserve is recorded as an offset to a current asset’s carrying value or is included as an accrued liability in the Closing Balance Sheet) from amounts contained in the Reference Balance Sheet, other than changes therein attributable to changes in facts and circumstances occurring after the date of the Reference Balance Sheet, (II) except as set forth in the following clause (IV), the Pre-Closing Statement and the Closing Statements shall not give effect to the consummation of the Merger, including any payments of cash in respect of the Merger Consideration or any Buyer financing transactions in connection therewith or, after the Effective Time, any other action or omission by Buyer, the Surviving Corporation or any of its Subsidiaries that is not in the ordinary course of business, business consistent with past practice and (IIIII) the Pre-Closing Statement and the Closing Statements shall not reflect any expense or liability for which Buyer is expressly responsible under this Agreement and (IV) the Pre-Closing Statement and the Closing Statements shall include the effects of the Transaction Tax DeductionsAgreement. Following the Closing, Buyer shall provide the Holder Representative and its representatives such reasonable access during normal business hours and upon reasonable advance notice, prior notice to the records, properties, personnel and (subject to the execution of customary work paper access letters if requested) auditors of the Company and its Subsidiaries relating to the preparation of the Closing Statements as reasonably requested by the Holder Representative Balance Sheet and shall cause the personnel of the Company and its Subsidiaries to reasonably cooperate with the Holder Representative in connection with its review of the Closing Statements as reasonably requested by Balance Sheet; provided, that such access and cooperation shall be granted under the Holder Representativecondition that they shall not unreasonably interfere with the business and operations of the Company and its Subsidiaries.
Appears in 1 contract
Samples: Agreement and Plan of Merger (Ribbon Communications Inc.)
Adjustment Amount. (a) As soon as reasonably practicable following the Closing Date, and in any event within sixty (60) 45 calendar days thereof, Buyer Seller shall prepare and deliver to the Holder Representative Buyer (Ai) an unaudited consolidated combined balance sheet of the Company and its Subsidiaries (provided that such balance sheet may omit information concerning shareholders equity) Companies (the “Closing Balance Sheet”) and (Bii) a closing statement (together with the Closing Balance Sheet, the “Closing Statements”), setting forth (i) a Seller’s good faith calculation of (A) Net Working Capital (“Closing Date Net Working Capital”), (iiB) a calculation of the aggregate amount of all Funded Debt of the Company Indebtedness (“Closing Date Funded DebtIndebtedness”), (iiiC) a calculation of the aggregate amount of all Cash of the Companies (“Closing Cash”) and (D) Transaction Expenses (“Closing Transaction Expenses”), and (iv) a calculation of Cash of the Company (“Closing Date Cash”), in each case, calculated as of immediately prior to the Measurement Time Closing; (iii) Seller’s calculation of the Closing Net Working Capital Adjustment Amount and (iv) on the basis of the foregoing, a calculation of the Closing Purchase Price (together with the items referred to in clauses (ii) and (iii) above, the “Final Closing Statement”); provided, that any liability for Taxes included in the Final Closing Statement shall be calculated after taking into account any income Tax deductions for Transaction Expenses that are properly accrued on the Closing Date and are available to offset such Tax liability (or, to the extent such Tax deductions exceed such Tax liability, any such excess Tax deductions that the Buyer reasonably determines in good faith can be used to offset its income Tax liability; Buyer shall provide the Seller with a certificate executed by the Buyer’s Chief Financial Officer setting forth in reasonable detail the calculation of such amounts together with supporting details). The Closing Balance Sheet, Closing Net Working Capital, Closing Indebtedness and Closing Cash shall be prepared in accordance with the Accounting Principles and the definitions of the defined terms used in this Section 2.06(a); provided, however, that (x) Accrued Income Taxes taken into account the Final Closing Statement (and any amounts included therein) shall reflect no increase in the calculation of Closing Date Funded Debt shall be determined as of the end of the day on the Closing Date and (y) for purposes of determining the amount of Closing Transaction Expensesany accrual, provision or reserve unless such amount shall be determined as of immediately prior to the Closing). The Closing Statements shall each be prepared in accordance with GAAP, applied in a manner increase is consistent with the principles, to the extent in conformity with GAAP applied in connection with the preparation of the most recent audited balance sheet included in the Financial Statements (the “Reference Balance Sheet”) using the same accounting practices, policies, judgments and methodologies used in the preparation of the Reference Balance Sheet; provided, however, that (I) the Closing Statements shall reflect no new reserves or increase in existing reserves (regardless of whether any such reserve is recorded as an offset to a current asset’s carrying value or is included as an accrued liability in the Closing Balance Sheet) from amounts contained in the Reference Balance Sheet, other than changes therein attributable to changes in facts and circumstances occurring after the date of the Reference Balance SheetAccounting Principles, (IIy) except as set forth in the following clause (IVz), the Pre-Final Closing Statement (and the Closing Statements any amounts included therein) shall not give effect to the consummation of the transactions contemplated by this Agreement, including any payments of cash in respect of the Merger Consideration Purchase Price, or any Buyer financing transactions in connection therewith or, after the Effective TimeClosing, any other action or omission by Buyer, the Surviving Corporation Buyer or any of its Subsidiaries that is not in the ordinary course of business, Companies and (IIIz) the Pre-Final Closing Statement and the Closing Statements shall not reflect (I) any expense or liability for which Buyer is expressly responsible under this Agreement Agreement, other than the Accrued Employee Amounts and any Transaction Expenses, or (IVII) any negative Bonus Bank Amounts. Notwithstanding anything to the Pre-contrary in this Agreement, the calculations to be made pursuant to Section 2.05, and the purchase price adjustment to be made pursuant to this Section 2.06, shall be intended to give effect to the arithmetic difference between the items in the Preliminary Closing Statement and the Final Closing Statements Statement, all of which shall include be determined in accordance with the effects of the Transaction Tax DeductionsAccounting Principles without regard to any differences from GAAP. Following the Closing, Buyer shall provide the Holder Representative and its representatives such reasonable access during normal business hours and upon reasonable advance notice, Neither Section 2.05 nor Section 2.06 is intended to be used to adjust for claims that may be made with respect to the recordsBalance Sheet or any inconsistencies or questions of interpretation between the Balance Sheet or the Accounting Principles, propertieson the one hand, personnel and (subject to GAAP, on the execution of customary work paper access letters if requested) auditors of the Company and its Subsidiaries relating to the preparation of the Closing Statements as reasonably requested by the Holder Representative and shall cause the personnel of the Company and its Subsidiaries to reasonably cooperate with the Holder Representative in connection with its review of the Closing Statements as reasonably requested by the Holder Representativeother.
Appears in 1 contract
Adjustment Amount. (a) As soon as reasonably practicable following the Closing Date, and in any event within sixty (60) 75 calendar days thereof, Buyer shall prepare and deliver to the Holder Representative Seller (Ai) an unaudited consolidated balance sheet of the Company and its Subsidiaries (provided that such balance sheet may omit information concerning shareholders equity) (the “Closing Balance Sheet”) and (B) a closing statement (together with the Closing Balance Sheet, the “Closing Statements”), setting forth (iii) a calculation of Net Working Capital (“Closing Date Net Working Capital”), (iiiii) a calculation of the aggregate amount of all Funded Debt of the Company Group (“Closing Date Funded Debt”), (iii) a calculation of the aggregate amount of all Transaction Expenses (“Closing Transaction Expenses”), and (iv) a calculation of Cash of the Company Group (“Closing Date Cash”) and (v) a calculation of Transaction Expenses (the “Closing Date Transaction Expenses”), in each case, calculated as of the Measurement Time (provided, however, that (x) Accrued Income Taxes taken into account in the calculation close of Closing Date Funded Debt shall be determined as of the end of the day business on the Closing Date and (y) for purposes of determining the amount of Closing Transaction Expenses, such amount shall be determined as of Business Day immediately prior to the ClosingClosing Date consistent (except as provided in this Section 2.4(a) or the definitions of the defined terms used in this Section 2.4(a)) with the Closing Balance Sheet. The Closing Statements Balance Sheet shall each be prepared in accordance with GAAP, consistently applied in a manner consistent with the principles, to the extent in conformity with GAAP applied in connection with the preparation without modification of the most recent audited balance sheet included in the Financial Statements (the “Reference Balance Sheet”) using the same accounting practices, policies, judgments and methodologies principles used in the preparation thereof throughout the periods presented, except to the extent modified by the illustrative calculation of Net Working Capital and the Reference Balance Sheet; providednotes thereto set forth on Schedule 2.4(a) (the “Sample Working Capital Statement”), however, with the further understanding that (I) the Closing Statements Balance Sheet shall reflect no new reserves or increase changes in existing reserves (regardless of whether any such reserve is recorded as an offset to a current assetCurrent Asset’s carrying value or is included as an accrued liability in the Closing Balance Sheet) from amounts contained in the Reference Balance Sheet, other than changes therein attributable to changes in facts and circumstances occurring after the date of the Reference Balance Sheet, (II) except as set forth in the following clause (IVIII), the Pre-Closing Statement and the Closing Statements Balance Sheet shall not give effect to the consummation of the transactions contemplated by this Agreement, including any incurrence by Buyer or its Affiliates (including, after the Closing, the Company Group) of Funded Debt or other financing transactions in connection therewith, payments of cash in respect of the Merger Consideration or any Buyer financing transactions in connection therewith Purchase Price or, after the Effective TimeClosing, any other action or omission by Buyer, Buyer or the Surviving Corporation or any of its Subsidiaries Company Group that is not in the ordinary course of businessbusiness consistent with past practice, (III) the Pre-Closing Statement and the Closing Statements Balance Sheet shall not reflect any expense or liability for which Buyer is responsible under this Agreement Agreement, and (IV) the Pre-Closing Statement and treatment of leases as capital leases or operating leases shall be identical to their treatment in the Closing Statements shall include the effects of the Transaction Tax DeductionsBalance Sheet. Following the Closing, Buyer shall shall, upon reasonable advance notice, provide the Holder Representative Seller and its representatives such reasonable access during normal business hours and upon reasonable advance notice, to the records, properties, personnel and (subject to the execution of customary work paper access letters if requested) work papers prepared by auditors of the Company and its Subsidiaries Group relating to the preparation of the Closing Statements as reasonably requested by the Holder Representative Balance Sheet and shall cause the personnel of the Company and its Subsidiaries involved in the preparation of the Closing Balance Sheet to reasonably cooperate with the Holder Representative Seller in connection with its review of the Closing Statements as reasonably requested by Balance Sheet; provided that such access shall be in a manner that does not interfere in any material respect with the Holder Representative.normal business operations of Buyer or the Company Group. “
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Samples: Membership Interest Purchase Agreement (Thestreet, Inc.)
Adjustment Amount. (a) As soon as reasonably practicable following the Closing Date, and in any event within sixty ninety (6090) calendar days thereof, Buyer shall prepare and deliver to the Holder Representative (A) an unaudited consolidated balance sheet Representative, together with such schedules and data with respect to the determination of each of the Company following as the Holder Representative deems reasonably appropriate to support such calculations and its Subsidiaries (provided that such balance sheet may omit information concerning shareholders equity) (the “Closing Balance Sheet”) and (B) a closing statement (together with the Closing Balance Sheetestimates, the “Closing Statements”), setting forth (i) a calculation of Net Working Capital (“Closing Date Net Working Capital”), (ii) a calculation of the aggregate amount of all Funded Debt of the Company (“Closing Date Funded Debt”), (iii) a calculation of the aggregate amount of all Transaction Expenses (“Closing Transaction Expenses”), and (iv) a calculation of Cash of the Company (“Closing Date Cash”) and (iv) a calculation of the consolidated liabilities of the Company and its Subsidiaries for Company Transaction Expenses (the “Closing Date Unpaid Company Transaction Expenses”), in each case, calculated as of the Measurement Time 11:59 p.m. (provided, however, that (xEastern time) Accrued Income Taxes taken into account in the calculation of Closing Date Funded Debt shall be determined as of the end of the day on the Closing Date (x) consistent (except as provided in this Section 3.4(a)) with the definitions of Closing Date Net Working Capital, Closing Date Funded Debt, Closing Date Cash, and Closing Date Unpaid Company Transaction Expenses (and in each case any definitions of defined terms used therein) (such amounts defined by such definitions, the “Price Components”) and (y) for purposes of determining the amount of Closing Transaction Expenses, such amount shall be determined as of immediately prior to the Closing). The Closing Statements shall each be prepared in accordance with GAAP, GAAP applied in a manner consistent with the same accounting principles, to the extent in conformity with GAAP practices, policies, methodologies and judgments applied in connection with the preparation of the most recent audited balance sheet included in the Financial Statements (the “Reference Balance Sheet”) using the same accounting practices, policies, judgments and methodologies used in the preparation of the Reference Balance Sheet); provided, however, that (I) the Closing Statements Price Components shall reflect no new changes in reserves or increase in existing reserves (regardless of whether any such reserve is recorded as an offset to a current asset’s carrying value or is included as an accrued liability in the Closing Balance Sheet) from amounts contained in the Reference Balance Sheet, other than changes therein attributable to changes in facts and circumstances occurring after the date of the Reference Balance Sheet, (II) except as set forth in the following clause (IVV), the Pre-Closing Statement and calculation of the Closing Statements Price Components shall not give effect to the consummation of the Merger, including any payments of cash in respect of the Merger Consideration or any Buyer financing transactions in connection therewith or, after the Effective Time, any other action or omission by Buyer, the Surviving Corporation Company or any of its Subsidiaries that is not in the ordinary course of businessbusiness consistent with past practice, (III) the Pre-Closing Statement and treatment of leases as capital leases or operating leases shall be identical to their treatment in the Closing Statements Reference Balance Sheet, (IV) the Price Components shall not reflect any expense or liability for which Buyer is responsible under this Agreement and (IVV) the Pre-determination of Closing Statement and the Closing Statements Date Net Working Capital shall include the effects of the Transaction any deductions or other Tax Deductions. Following the Closing, Buyer shall provide the Holder Representative and its representatives such reasonable access during normal business hours and upon reasonable advance notice, to the records, properties, personnel and (subject to the execution of customary work paper access letters if requested) auditors of the Company and its Subsidiaries relating to the preparation of the Closing Statements as reasonably requested by the Holder Representative and shall cause the personnel of the Company and its Subsidiaries to reasonably cooperate with the Holder Representative benefits arising in connection with its review the consummation of the Closing Statements transactions contemplated hereby (the accounting principles, practices, policies, methodologies and judgments in subsection (y) being referred to collectively as reasonably requested by the Holder Representative“Accounting Principles”).
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