Closing Date Balance Sheet. Within forty (40) days after the Closing Date, Purchaser shall prepare and deliver to Seller, at Purchaser's expense, an unaudited balance sheet for the Company as of the Closing Date (the "Preliminary Closing Date Balance Sheet"), which shall be prepared by Purchaser in accordance with GAAP on a consistent basis. Promptly upon Seller's request, Purchaser shall make available to Seller copies of the work papers and back-up materials used by Purchaser in preparing the Preliminary Closing Date Balance Sheet and such other documents as Seller may reasonably request in connection with its review of the Preliminary Closing Date Balance Sheet. Within ninety (90) days after the first anniversary of the Closing Date, Purchaser shall prepare and deliver to Seller, at Purchaser's expense, an unaudited balance sheet for the Company as of the Closing Date (the "Adjusted Closing Date Balance Sheet"), which shall be prepared by Purchaser in accordance with GAAP on a consistent basis and which shall be adjusted to reflect changes to the elements of Working Capital set forth on the Preliminary Closing Date Balance Sheet that have or have not been converted to cash or been utilized in the operation of the Company's business, as well as elements for which reserves, accruals and/or balances have proven to be inaccurate with hindsight. In particular, the Adjusted Closing Date Balance Sheet shall reflect full reserves for any Accounts Receivable that remain uncollected on the first anniversary of the Closing Date, any inventory owned by the Company on the Closing Date that remains unused or unsold on the first anniversary of the Closing Date and any warranty claims or other liabilities that relate to the pre-Closing period, in each case in excess of the reserves related thereto. Promptly upon Seller's request, Purchaser shall make available to Seller copies of the work papers and back-up materials used by Purchaser in preparing the Adjusted Closing Date Balance Sheet and such other documents as Seller may reasonably request in connection with its review of the Adjusted Closing Date Balance Sheet. Purchaser undertakes to cause the Company to use its commercially reasonable efforts to collect all accounts receivables and to utilize all inventory currently on the books in accordance with the Company's past practices and in the ordinary course of its business. Within thirty (30) days after receipt of the Adjusted Closing Date Balance Sheet, Seller shall deliver to Purchaser a written statement describing its objections (if any) to the Adjusted Closing Date Balance Sheet. If Seller does not raise any objections in a written statement within such thirty (30)-day period, the Adjusted Closing Date Balance Sheet shall become final and binding upon all parties. The final and binding Adjusted Closing Date Balance Sheet is referred to as the "Closing Date Balance Sheet". If Seller does raise objections in a written statement within such thirty (30)-day period, and the parties cannot resolve such objections within ten (10) Business Days after the receipt by Purchaser of Seller's written statement of objections, any remaining disputes shall be resolved by PriceWaterhouseCoopers or another nationally recognized independent accounting firm mutually agreeable to Purchaser and Seller (the "Accounting Firm"). The Accounting Firm shall be instructed to resolve such disputes within thirty (30) days after its appointment. The resolution of disputes by the Accounting Firm shall be set forth in writing and shall be conclusive and binding upon all parties and the Adjusted Closing Date Balance Sheet, as modified by such resolution, shall become final and binding upon the date of such resolution. The fees and expenses of the Accounting Firm shall be apportioned by the Accounting Firm based on the degree to which each party's claims were unsuccessful and shall be paid by the parties in accordance with such determination. For example, if pursuant to this Section 2.4(c) Seller submitted an objection affecting the Purchase Price in the amount of $100,000 and prevailed as to $45,000 of the amount, then Seller would bear fifty-five percent (55%) of the fees and expenses of the Accounting Firm.
Appears in 1 contract
Closing Date Balance Sheet. Within forty Not less than one hundred and eighty ---------------------------- (40180) days after immediately following the Closing DateDate Seller shall deliver or cause to be delivered to Purchaser a true, correct and complete consolidated balance sheet of the Company and its Subsidiaries as at the close of business on December 31, 2005 which has been duly audited by the firm of certified public accountants regularly engaged by the Company, which includes a determination of those liabilities identified in Schedule 3.1 hereto and which is accompanied by ------------ an unqualified opinion of such accounting firm that the Closing Balance Sheet has been prepared in accordance with GAAP (except with respect to the inclusion of those identified in Schedule 3.1 hereto) consistently applied and utilizing ------------ the same assumptions, procedures and methods as were utilized in the preparation of the Balance Sheet, setting forth each of the Company's and the Subsidiaries' Company Debt, cash and cash equivalents, and Receivables (Company Debt, cash and cash equivalents, and Receivables collectively referred to as "BALANCE SHEET ITEMS") as of the close of business on December 31, 2005 (said balance sheet and the footnotes thereto being referred to herein as the "CLOSING DATE BALANCE SHEET"). In addition, although they would not formally be reflected as liabilities on the Closing Balance Sheet under GAAP, for purposes of this Agreement the Closing Date Balance Sheet shall include within the liabilities section those certain liabilities of the Company or a Subsidiary which are more particularly identified on Schedule 3.1 hereto (the liabilities reflected on the ------------ Closing Date Balance Sheet, combined with the liabilities reflected on Schedule -------- 3.1 hereto are hereafter collectively referred to as the "CLOSING DATE --- LIABILITIES"). The aggregate Accounts Receivable of the Company and the Subsidiaries reflected on the Closing Date Balance Sheet are hereinafter referred to as the "CLOSING DATE ACCOUNTS RECEIVABLE." The fees, costs and expenses of such audited balance sheet shall be borne by Seller. Purchaser shall prepare and deliver to Seller, at Purchaser's expense, an unaudited balance sheet for have a period of thirty (30) days (the Company as "OBJECTION PERIOD") after receipt of the Closing Date Balance Sheet from Seller in which to provide written notice to Seller of any objections thereto (the "Preliminary Closing Date Balance SheetOBJECTION NOTICE"), which shall be prepared by Purchaser setting forth in accordance with GAAP on a consistent basis. Promptly upon Seller's request, Purchaser shall make available to Seller copies reasonable detail the specific item of the work papers calculation of the Balance Sheet Items or other items or matters to which each such objection relates and back-up materials used by Purchaser in preparing the Preliminary specific basis for each such objection. The Closing Date Balance Sheet and such the resulting Balance Sheet Items or other documents as Seller may reasonably request in connection with its review of the Preliminary Closing Date Balance Sheet. Within ninety (90) days after the first anniversary of the Closing Date, Purchaser shall prepare and deliver to Seller, at Purchaser's expense, an unaudited balance sheet for the Company as of the Closing Date (the "Adjusted Closing Date Balance Sheet"), which items or matters shall be prepared by Purchaser in accordance with GAAP on a consistent basis and which shall be adjusted to reflect changes to the elements of Working Capital set forth on the Preliminary Closing Date Balance Sheet that have or have not been converted to cash or been utilized in the operation of the Company's business, as well as elements for which reserves, accruals and/or balances have proven deemed to be inaccurate with hindsight. In particularaccepted by Purchaser, the Adjusted Closing Date Balance Sheet shall reflect full reserves for any Accounts Receivable that remain uncollected on the first anniversary of the Closing Date, any inventory owned by the Company on the Closing Date that remains unused or unsold on the first anniversary of the Closing Date and any warranty claims or other liabilities that relate to the pre-Closing period, in each case in excess of the reserves related thereto. Promptly upon Seller's request, Purchaser shall make available to Seller copies of the work papers and back-up materials used by Purchaser in preparing the Adjusted Closing Date Balance Sheet and such other documents as Seller may reasonably request in connection with its review of the Adjusted Closing Date Balance Sheet. Purchaser undertakes to cause the Company to use its commercially reasonable efforts to collect all accounts receivables and to utilize all inventory currently on the books in accordance with the Company's past practices and in the ordinary course of its business. Within thirty (30) days after receipt of the Adjusted Closing Date Balance Sheet, Seller shall deliver to Purchaser a written statement describing its objections (if any) to the Adjusted Closing Date Balance Sheet. If Seller does not raise any objections in a written statement within such thirty (30)-day period, the Adjusted Closing Date Balance Sheet shall become final and binding upon on the parties, on the later of (i) the expiration of the Objection Period without the filing of an Objection Notice or (ii) the date on which all partiesobjections have been resolved by the parties or the Reviewing Party and payment has been made, to the extent required under Section 3.3 below (the "RECONCILIATION DATE"). The final If Purchaser ------------ gives any such Objection Notice within the Objection Period, then Purchaser and binding Adjusted Seller shall attempt in good faith to resolve any dispute concerning the item(s) subject to such Objection Notice. If Purchaser and Seller do not resolve all disputes arising in connection with the calculation of the Balance Sheet Items and/or relating to the Closing Date Balance Sheet is referred to as the "Closing Date Balance Sheet". If Seller does raise objections in a written statement within such thirty (30)-day period, and the parties cannot resolve such objections within ten (10) Business Days after the receipt by Purchaser of Seller's written statement of objections, any remaining disputes shall be resolved by PriceWaterhouseCoopers or another nationally recognized independent accounting firm mutually agreeable to Purchaser and Seller (the "Accounting Firm"). The Accounting Firm shall be instructed to resolve such disputes within thirty (30) days after its appointment. The resolution the date of disputes delivery of the Objection Notice, which thirty (30) day period may be extended by written agreement of Seller and Purchaser (such period, as it may be extended, the Accounting Firm "INITIAL RESOLUTION PERIOD"), such dispute shall be resolved in accordance with the procedures set forth in writing and shall be conclusive and binding upon all parties and the Adjusted Closing Date Balance Sheet, as modified by such resolution, shall become final and binding upon the date of such resolutionSection 3.2 below. The fees and expenses of the Accounting Firm shall be apportioned by the Accounting Firm based on the degree to which each party's claims were unsuccessful and shall be paid by the parties in accordance with such determination. For example, if pursuant to this Section 2.4(c) Seller submitted an objection affecting the Purchase Price in the amount of $100,000 and prevailed as to $45,000 of the amount, then Seller would bear fifty-five percent (55%) of the fees and expenses of the Accounting Firm.------------
Appears in 1 contract
Samples: Membership Interest Purchase Agreement (Jones Lang Lasalle Inc)
Closing Date Balance Sheet. Within forty seventy-five (4075) days after following the Closing Date, Purchaser shall the Buyer will prepare and deliver to Seller, at Purchaser's expense, an unaudited the Seller a balance sheet for the Company as of the Closing Date (close of business on the "Preliminary Closing Date Balance Sheet"), which shall be prepared by Purchaser in accordance with GAAP on a consistent basis. Promptly upon Seller's request, Purchaser shall make available to Seller copies of the work papers and back-up materials used by Purchaser in preparing the Preliminary Closing Date Balance Sheet and such other documents as Seller may reasonably request in connection with its review of the Preliminary Closing Date Balance Sheet. Within ninety (90) days after the first anniversary of the Closing Date, Purchaser shall prepare and deliver to Seller, at Purchaser's expense, an unaudited balance sheet for the Company as of day immediately preceding the Closing Date (the "Adjusted “Closing Date Balance Sheet"”) and, based thereon and on other information necessary to make the calculation, a calculation of the amount of (i) both the Closing Date Net Working Capital and any resulting Working Capital Adjustment (which will be calculated in the manner described herein), (ii) the Cash and Cash Equivalents and any resulting Cash and Cash Equivalents adjustment (which shall will be prepared by Purchaser calculated in accordance with GAAP on a consistent basis the manner described herein), (iii) the Closing Date Indebtedness and any resulting Indebtedness adjustment (which shall will be adjusted to reflect changes to calculated in the elements of Working manner described herein), (iv) the Transaction Expenses and any resulting Transaction Expenses adjustment (which will be calculated in the manner described herein), (v) the Pre-Closing Tax Obligations and any resulting Pre-Closing Tax Obligations adjustment (which will be calculated in the manner described herein), (vi) the Capital set forth on the Preliminary Expenditures Deficit and any resulting Capital Expenditures Deficit adjustment, and (vii) any resulting Closing Date Cash Payment Adjustment. The Closing Date Balance Sheet that have or have not been converted will be prepared in accordance with GAAP, consistently applied, and prepared applying the same accounting principles and methodologies used to cash or been utilized in prepare the operation of the Company's business, as well as elements for which reserves, accruals and/or balances have proven to be inaccurate with hindsight. In particular, the Adjusted Closing Date Balance Sheet shall reflect full reserves for any Accounts Receivable that remain uncollected on the first anniversary of the Closing Date, any inventory owned by the Company on the Closing Date that remains unused or unsold on the first anniversary of the Closing Date and any warranty claims or other liabilities that relate to the pre-Closing period, in each case in excess of the reserves related thereto. Promptly upon Seller's request, Purchaser shall make available to Seller copies of the work papers and back-up materials used by Purchaser in preparing the Adjusted Closing Date Balance Sheet and such other documents as Seller may reasonably request in connection with its review applying the past practices of the Adjusted Closing Date Balance Sheet. Purchaser undertakes to cause the Company to use its commercially reasonable efforts to collect all accounts receivables (and to utilize all inventory currently on the books where GAAP provides for a range of alternatives such past practices shall govern provided they are in accordance with GAAP). Whether or not the Company's past practices and in date as of which the ordinary course of its business. Within thirty (30) days after receipt of the Adjusted Closing Date Balance Sheet, Seller shall deliver to Purchaser a written statement describing its objections (if any) to the Adjusted Closing Date Balance Sheet. If Seller does not raise any objections in a written statement within such thirty (30)-day period, the Adjusted Closing Date Balance Sheet shall become final and binding upon all parties. The final and binding Adjusted Closing Date Balance Sheet is referred required to as be prepared coincides with a fiscal quarter-end or fiscal year-end of the "Closing Date Balance Sheet". If Seller does raise objections in a written statement within such thirty (30)-day periodCompany, the Parties shall use customary closing procedures for the preparation thereof, including procedures with respect to accounts and the parties cannot resolve such objections within ten (10) Business Days after the receipt by Purchaser of Seller's written statement of objections, any remaining disputes shall be resolved by PriceWaterhouseCoopers or another nationally recognized independent accounting firm mutually agreeable to Purchaser and Seller (the "Accounting Firm")adjustments. The Accounting Firm shall be instructed to resolve such disputes within thirty (30Parties acknowledge and agree that Schedule 1.6(a) days after its appointment. The resolution of disputes by the Accounting Firm shall be set sets forth in writing and shall be conclusive and binding upon all parties and the Adjusted Closing Date Balance Sheet, as modified by such resolution, shall become final and binding upon the date of such resolution. The fees and expenses an illustration of the Accounting Firm shall be apportioned by the Accounting Firm based on the degree to which each party's claims were unsuccessful and shall be paid by the parties in accordance with such determination. For example, if pursuant to this Section 2.4(c) Seller submitted an objection affecting calculation of the Purchase Price in assuming (including the amount various components and line items of $100,000 and prevailed as to $45,000 of Net Working Capital) that the amountClosing Date had occurred on July 1, then Seller would bear fifty-five percent (55%) of the fees and expenses of the Accounting Firm2014.
Appears in 1 contract
Closing Date Balance Sheet. Within forty (40) 60 days after the Closing Date, Purchaser shall prepare and deliver to Seller, at Purchaser's expense, Date an unaudited audited balance sheet for the Company Division shall be prepared as of the Closing Date (the "Preliminary Closing Date Balance Sheet"), which ) and delivered to PentaStar and the Company. The Closing Date Balance Sheet shall be prepared by Purchaser in Arthxx Andexxxx X.X.P. ("Arthxx Xxxexxxx") xn accordance with GAAP GAAP, on a basis consistent basiswith the accounting practices of PentaStar used in connection with its audit for the year ended December 31, 1999, including PentaStar's GAAP method of revenue recognition for residual commission payments and GAAP consistent with booking prior paid salesperson commissions as prepaid commissions less an appropriate reserve for contract cancellations and salesperson terminations. Promptly upon Seller's request, Purchaser PentaStar shall make available to Seller copies pay the fees and expenses of Arthxx Xxxexxxx xxxurred in connection with the preparation of the work papers Closing Date Balance Sheet. The Closing Date Balance Sheet shall set forth, in addition to other items required by GAAP, the amount, as of the Closing Date, of (A) cash held by the Company, (B) the aggregate amount of Past Due 1/31 Receivables received by the Company after January 31, 2000 (whether received by collection of cash, offset of accounts payable or otherwise, and back-up materials whether or not any cash or other amount in respect thereof is on hand or has been used by Purchaser the Company), (C) the Assumed Liabilities described in preparing clauses (b) and (c) of the Preliminary definition of Assumed Liabilities and each item thereof, and (D) all Closing Date Liabilities and each item thereof. Within 20 days after receipt of the Closing Date Balance Sheet, each of PentaStar and the Company shall, in a written notice to the other either accept the Closing Date Balance Sheet or object to it by describing in reasonably specific detail any proposed adjustments to the Closing Date Balance Sheet and the estimated amounts of and reasons for such other documents as Seller may reasonably request in connection with its review of the Preliminary Closing Date Balance Sheetproposed adjustments. Within ninety (90) days after the first anniversary of the Closing Date, Purchaser shall prepare and deliver to Seller, at Purchaser's expense, an unaudited balance sheet for The failure by PentaStar or the Company as of the Closing Date (the "Adjusted Closing Date Balance Sheet"), which shall be prepared by Purchaser in accordance with GAAP on a consistent basis and which shall be adjusted to reflect changes object to the elements of Working Capital set forth on the Preliminary Closing Date Balance Sheet that have or have not been converted within such 20-day period shall be deemed to cash or been utilized in the operation be an acceptance by such Person of the Company's business, as well as elements for which reserves, accruals and/or balances have proven to be inaccurate with hindsight. In particular, the Adjusted Closing Date Balance Sheet shall reflect full reserves for any Accounts Receivable that remain uncollected on the first anniversary of the Closing Date, any inventory owned by the Company on the Closing Date that remains unused or unsold on the first anniversary of the Closing Date and any warranty claims or other liabilities that relate to the pre-Closing period, in each case in excess of the reserves related thereto. Promptly upon Seller's request, Purchaser shall make available to Seller copies of the work papers and back-up materials used by Purchaser in preparing the Adjusted Closing Date Balance Sheet and such other documents as Seller may reasonably request in connection with its review of the Adjusted Closing Date Balance Sheet. Purchaser undertakes to cause the Company to use its commercially reasonable efforts to collect all accounts receivables and to utilize all inventory currently on the books in accordance with the Company's past practices and in the ordinary course of its business. Within thirty (30) days after receipt of the Adjusted Closing Date Balance Sheet, Seller shall deliver to Purchaser a written statement describing its objections (if any) to the Adjusted Closing Date Balance Sheet. If Seller does not raise any objections in a written statement within such thirty (30)-day period, adjustments to the Adjusted Closing Date Balance Sheet shall become final and binding upon all parties. The final and binding Adjusted Closing Date Balance Sheet is referred to as are proposed by PentaStar or the "Closing Date Balance Sheet". If Seller does raise objections in a written statement Company within such thirty (30)-day 20-day period, and the parties cannot resolve such objections within ten (10) Business Days after the receipt by Purchaser of Seller's written statement of objections, any remaining disputes dispute shall be resolved by PriceWaterhouseCoopers or another nationally recognized independent accounting firm mutually agreeable to Purchaser and Seller (the "Accounting Firm"as provided in Section 2.3(c). The Accounting Firm shall be instructed to resolve such disputes within thirty (30) days after its appointment. The resolution of disputes by the Accounting Firm shall be set forth in writing and shall be conclusive and binding upon all parties and the Adjusted Closing Date Balance Sheet, as modified by such resolution, shall become final and binding upon the date of such resolution. The fees and expenses of the Accounting Firm shall be apportioned by the Accounting Firm based on the degree to which each party's claims were unsuccessful and shall be paid by the parties in accordance with such determination. For example, if pursuant to this Section 2.4(c) Seller submitted an objection affecting the Purchase Price in the amount of $100,000 and prevailed as to $45,000 of the amount, then Seller would bear fifty-five percent (55%) of the fees and expenses of the Accounting Firm.
Appears in 1 contract
Closing Date Balance Sheet. Within forty (40) days after the Closing Date, Purchaser shall prepare and deliver to Seller, at Purchaser's expense, an unaudited balance sheet for the Company as of the Closing Date (the "Preliminary Closing Date Balance Sheet"), which shall be prepared by Purchaser in accordance with GAAP on a consistent basis. Promptly upon Seller's request, Purchaser shall make available to Seller copies of the work papers and back-up materials used by Purchaser in preparing the Preliminary Closing Date Balance Sheet and such other documents as Seller may reasonably request in connection with its review of the Preliminary Closing Date Balance Sheet. Within ninety (90) days after the first anniversary of the Closing Date, Purchaser shall PainCare or its Affiliate will prepare and deliver to Seller, at Purchaser's expense, an unaudited the Shareholder a balance sheet for of the Company as of the close of business on the Closing Date (the "Adjusted Closing Date Balance Sheet"), which shall be prepared by Purchaser in accordance with GAAP on a consistent basis and which shall be adjusted to reflect changes to the elements of Working Capital set forth on the Preliminary Closing Date Balance Sheet that have or have not been converted to cash or been utilized in the operation of the Company's business, as well as elements for which reserves, accruals and/or balances have proven to be inaccurate with hindsight. In particular, the Adjusted Closing Date Balance Sheet shall reflect full reserves for any Accounts Receivable that remain uncollected on the first anniversary of the Closing Date, any inventory owned by the Company on the Closing Date that remains unused or unsold on the first anniversary of the Closing Date and any warranty claims or other liabilities that relate to the pre-Closing period, in each case in excess of the reserves related thereto. Promptly upon Seller's request, Purchaser shall make available to Seller copies of the work papers and back-up materials used by Purchaser in preparing the Adjusted Closing Date Balance Sheet and such other documents as Seller may reasonably request in connection with its review of the Adjusted Closing Date Balance Sheet. Purchaser undertakes to cause the Company to use its commercially reasonable efforts to collect all accounts receivables and to utilize all inventory currently on the books in accordance with the Company's past practices and in the ordinary course of its business. Within thirty (30) days after receipt of the Adjusted Closing Date Balance Sheet, Seller shall deliver to Purchaser a written statement describing its objections (if any) to the Adjusted Closing Date Balance Sheet. If Seller does not raise any objections in a written statement within such thirty (30)-day period, the Adjusted Closing Date Balance Sheet shall become final and binding upon all parties. The final and binding Adjusted Closing Date Balance Sheet is referred to as the "Closing Date Balance Sheet"). If Seller does raise objections Within six (6) days after PainCare's delivery of the Closing Date Balance Sheet to the Shareholder, the Shareholder shall, in a written statement notice to PainCare, either accept or describe in reasonable detail any proposed adjustments to the Closing Date Balance Sheet and the reasons therefore, and shall include pertinent calculations. If the Shareholder fails to deliver notice of acceptance or objection to the Closing Date Balance Sheet within such thirty six (30)-day 6) day period, and the parties cannot resolve such objections within ten (10) Business Days after the receipt by Purchaser of Seller's written statement of objections, any remaining disputes Shareholder shall be resolved by PriceWaterhouseCoopers or another nationally recognized independent accounting firm mutually agreeable deemed to Purchaser and Seller have accepted the Closing Date Balance Sheet. Except in the case of a dispute with respect to the Closing Date Balance Sheet, within seven (7) days after delivery of the Closing Date Balance Sheet (the "Accounting FirmAdjustment Payment Date"), the Shareholder shall pay the Other Net Equity Adjustment to PainCare in cash. The Accounting Firm shall be instructed In the event that PainCare and the Shareholder are not able to resolve such disputes agree on the Closing Date Balance Sheet within thirty (30) days from and after its appointmentthe receipt by PainCare of any objections raised by the Shareholder, then either Party shall each have the right to require that such disputed determinations be submitted to an independent certified public accountant or accounting firm that PainCare shall select, for computation or verification in accordance with the provisions of this Agreement, and the Other Net Equity Adjustment shall be paid by the Shareholder to PainCare within five (5) days after receipt of the accountant's computation or verification. The resolution of disputes by the Accounting Firm foregoing provisions for certified public accounting firm review shall be set forth in writing and shall be conclusive and binding upon all parties and the Adjusted Closing Date Balance Sheet, as modified by such resolution, shall become final and binding upon the date Parties and there shall be no right of appeal from such resolutiondecision. The Such accounting firm's fees and expenses of the Accounting Firm for such disputed determination shall be apportioned borne by the Accounting Firm based on Party whose determination has been modified by such accounting firm's report or by all Parties in proportion to the degree to which relative amount each partyParty's claims were unsuccessful and shall be paid by the parties in accordance with such determinationdetermination has been modified. For example, if pursuant to Any payments due under this Section 2.4(c) Seller submitted an objection affecting the Purchase Price in the amount of $100,000 and prevailed as to $45,000 of the amount, then Seller would 3.3 shall bear fifty-five interest at [eight percent (558%) of )] per annum from the fees and expenses of the Accounting FirmAdjustment Payment Date.
Appears in 1 contract
Samples: Merger Agreement and Plan of Reorganization (Paincare Holdings Inc)
Closing Date Balance Sheet. Within forty ninety (4090) days after following the Closing Date, the Purchaser shall prepare and deliver to Seller, at Purchaser's expense, an unaudited the Sellers’ Representative a balance sheet for the Company as of the close of business on the Closing Date (the "Preliminary “Closing Date Balance Sheet")”) and, which shall be prepared by Purchaser in accordance with GAAP on a consistent basis. Promptly upon Seller's request, Purchaser shall make available to Seller copies of if the work papers and back-up materials used by Purchaser in preparing Reference Date is not the Preliminary Closing Date Balance Sheet and such other documents same day as Seller may reasonably request in connection with its review of the Preliminary Closing Date Balance Sheet. Within ninety (90) days after the first anniversary of the Closing Date, Purchaser shall prepare and deliver to Seller, at Purchaser's expense, an unaudited then also a balance sheet for the Company as of the Closing close of business on the Reference Date (the "Adjusted Closing “Reference Date Balance Sheet"”) and, based thereon and on other information necessary to make the calculation, a calculation of the amount of (i) both the Reference Date Net Working Capital and any resulting Reference Date Net Working Capital Adjustment (which will be calculated in the manner described herein), (ii) the Reference Date Cash and any resulting Reference Date Cash adjustment (which shall will be prepared by Purchaser in accordance with GAAP on a consistent basis and which shall be adjusted to reflect changes to the elements of Working Capital set forth on the Preliminary Closing Date Balance Sheet that have or have not been converted to cash or been utilized calculated in the operation of manner described herein), (iii) the Company's businessReference Date Income Amount and any resulting Reference Date Income Amount adjustment (which will be calculated in the manner described herein), as well as elements for which reserves, accruals and/or balances have proven to be inaccurate with hindsight. In particular, the Adjusted Closing Date Balance Sheet shall reflect full reserves for any Accounts Receivable that remain uncollected on the first anniversary of (iv) the Closing DateIndebtedness and any resulting Closing Indebtedness adjustment (which will be calculated in the manner described herein), any inventory owned by the Company on (v) the Closing Date that remains unused or unsold on the first anniversary of the Closing Date Transaction Expenses and any warranty claims or other liabilities that relate to resulting Closing Transaction Expenses adjustment (which will be calculated in the premanner described herein), (vi) the Pre-Closing periodTax Obligations and any resulting Pre-Closing Tax Obligations adjustment (which will be calculated in the manner described herein), in each case in excess of the reserves related theretoand (vii) any resulting Closing Cash Payment Adjustment. Promptly upon Seller's request, Purchaser shall make available to Seller copies of the work papers and back-up materials used by Purchaser in preparing the Adjusted The Closing Date Balance Sheet and such other documents as Seller may reasonably request in connection with its review of the Adjusted Closing Date Balance Sheet. Purchaser undertakes to cause the Company to use its commercially reasonable efforts to collect all accounts receivables and to utilize all inventory currently on the books in accordance with the Company's past practices and in the ordinary course of its business. Within thirty (30) days after receipt of the Adjusted Closing Reference Date Balance Sheet, Seller if applicable, shall deliver be prepared in accordance with GAAP, consistently applied, and prepared applying the same accounting principles and methodologies used to Purchaser prepare the most recent balance sheet included in the Reviewed Financial Statements and applying the past practices of the Company (and where GAAP provides for a written statement describing its objections (if anyrange of alternatives such past practices shall govern provided they are in accordance with GAAP). Whether or not the date(s) to as of which the Adjusted Closing Date Balance Sheet. If Seller does not raise any objections in a written statement within such thirty (30)-day period, the Adjusted Closing Date Balance Sheet shall become final and binding upon all parties. The final and binding Adjusted Closing Date Balance Sheet is referred to as the "Closing Date Balance Sheet". If Seller does raise objections in a written statement within such thirty (30)-day period, and the parties cannot resolve such objections within ten (10) Business Days after the receipt by Purchaser of Seller's written statement of objections, any remaining disputes shall be resolved by PriceWaterhouseCoopers or another nationally recognized independent accounting firm mutually agreeable to Purchaser and Seller (the "Accounting Firm"). The Accounting Firm shall be instructed to resolve such disputes within thirty (30) days after its appointment. The resolution of disputes by the Accounting Firm shall be set forth in writing and shall be conclusive and binding upon all parties and the Adjusted Closing Reference Date Balance Sheet, as modified by such resolutionif applicable, is/are required to be prepared coincides with a fiscal quarter-end or fiscal year-end of the Company, the Parties shall become final use customary closing procedures for the preparation thereof, including procedures with respect to accounts and binding upon the date of such resolutionadjustments. The fees and expenses Net Working Capital shall be determined in a manner consistent with the illustration set forth in (a) of the Accounting Firm shall be apportioned by Disclosure Schedules. The Parties acknowledge and agree that (a) of the Accounting Firm based on Disclosure Schedules sets forth an illustration of the degree to which each party's claims were unsuccessful and shall be paid by the parties in accordance with such determination. For example, if pursuant to this Section 2.4(c) Seller submitted an objection affecting calculation of the Purchase Price (including the various components and line items of Net Working Capital) based upon an assumed Closing Date and Reference Date of June 27, 2015. For purposes of calculating the value of the Inventory for purposes of determining Reference Date Net Working Capital, on the Closing Date the Company shall take a physical count of the Inventory of the Company and its Subsidiaries, and the Purchaser and its Representatives shall be permitted to observe such physical count; provided, however, that if the Closing Date and the Reference Date are not the same date, then the Company shall, upon the written request of Purchaser delivered to the Company within five (5) days prior to the Reference Date, also take a physical count of the Inventory of the Company and its Subsidiaries on the Reference Date. For purposes of counting and calculating the value of the Inventory of the Company and its Subsidiaries for purposes of determining the Reference Date Net Working Capital, the Parties acknowledge and agree that the Parties shall use the accounting methods, practices, principles, policies and procedures, with consistent judgments and valuation and estimation methodologies that were used in the amount of $100,000 and prevailed as to $45,000 preparation of the amount, then Seller would bear fiftyCompany’s annual financial statements for the most recent fiscal year-five percent (55%) of the fees and expenses of the Accounting Firmend.
Appears in 1 contract
Samples: Membership Interest Purchase Agreement (Post Holdings, Inc.)
Closing Date Balance Sheet. Within forty (40) days after Promptly following the Closing DateClosing, Purchaser shall prepare and deliver to Seller, at Purchaser's expense, an unaudited balance sheet for the Company as of the Closing Date (the "Preliminary Closing Date Balance Sheet"), which there shall be prepared by and delivered to the Purchaser in accordance with GAAP on a consistent basis. Promptly upon Seller's request, Purchaser shall make available to Seller copies of the work papers and back-up materials used by Purchaser in preparing the Preliminary Closing Date Balance Sheet and such other documents as Seller may reasonably request in connection with its review of the Preliminary Closing Date Balance Sheet. Within ninety (90) days after the first anniversary of the Closing Date, Purchaser shall prepare and deliver to Seller, at Purchaser's expense, an unaudited consolidated balance sheet for the Company as of the Closing Date (the "Adjusted Closing Date Balance Sheet"), which shall be prepared by Purchaser in accordance with GAAP on a consistent basis and which shall be adjusted to reflect changes to the elements of Working Capital set forth on the Preliminary Closing Date Balance Sheet that have or have not been converted to cash or been utilized in the operation of reflecting the Company's business, as well as elements for which reserves, accruals and/or balances have proven to be inaccurate with hindsight. In particular, the Adjusted Closing Date Balance Sheet shall reflect full reserves for any Accounts Receivable that remain uncollected on the first anniversary of the Closing Date, any inventory owned by the Company on the Closing Date that remains unused or unsold on the first anniversary of the Closing Date and any warranty claims or other liabilities that relate to the pre-Closing period, in each case in excess of the reserves related thereto. Promptly upon Seller's request, Purchaser shall make available to Seller copies of the work papers and back-up materials used by Purchaser in preparing the Adjusted Closing Date Balance Sheet and such other documents as Seller may reasonably request in connection with its review of the Adjusted Closing Date Balance Sheet. Purchaser undertakes to cause the Company to use its commercially reasonable efforts to collect all accounts receivables and to utilize all inventory currently on the books in accordance with the Company's past practices and in the ordinary course of its business. Within thirty Net Liabilities (30) days after receipt of the Adjusted Closing Date Balance Sheet, Seller shall deliver to Purchaser a written statement describing its objections (if any) to the Adjusted Closing Date Balance Sheet. If Seller does not raise any objections in a written statement within such thirty (30)-day period, the Adjusted Closing Date Balance Sheet shall become final and binding upon all parties. The final and binding Adjusted Closing Date Balance Sheet is referred to as the "Closing Date Balance Sheet") as of the Closing Date. If Seller does raise objections Such Closing Date Balance Sheet shall present fairly, in a written statement within such thirty (30)-day periodall material respects, the Net Liabilities of the Company and the parties cannot resolve such objections within ten (10) Business Days after the receipt by Purchaser of Seller's written statement of objections, any remaining disputes shall be resolved by PriceWaterhouseCoopers or another nationally recognized independent accounting firm mutually agreeable to Purchaser and Seller (the "Accounting Firm"). The Accounting Firm shall be instructed to resolve such disputes within thirty (30) days after its appointment. The resolution of disputes by the Accounting Firm shall be set forth in writing Subsidiaries and shall be conclusive prepared in accordance with GAAP and binding upon all parties and shall be accompanied by a report of the Adjusted Company's independent auditors that it has performed such review procedures with respect to such Closing Date Balance Sheet that has enabled it to state that based on such procedures, nothing has come to their attention that has led them to believe that any adjustments thereto are required in order for such Closing Date Balance Sheet to be prepared in accordance with GAAP. The Closing Date Balance Sheet shall be delivered to the Purchaser not later than 45 days after the Closing Date in order to determine what adjustments, if any, must be made to the Consideration pursuant to Section 2.2 hereof. The Purchaser shall have 30 days from the date that the Purchaser receives the Closing Date Balance Sheet to notify the Stockholders in writing if the Purchaser objects to any item in the Closing Date Balance Sheet. Any such notice (a "Notice of Dispute") shall specify in detail the item or items in dispute (a "Disputed Item" or "Disputed Items"). In the event that the Purchaser and the Stockholders are unable to resolve the Disputed Item or Disputed Items within 60 days after delivery of a Notice of Dispute, the Purchaser and the Stockholders shall together appoint a representative from the New York office of an independent nationally recognized accounting firm (the "Arbitrator") to arbitrate the dispute and, if the Purchaser and the Stockholders are unable to agree on an Arbitrator, at the request of either such party made within 10 days after the end of such 60-day period, the Arbitrator shall be chosen by the American Arbitration Association (the "AAA") in New York City. The Purchaser and the Stockholders shall present their positions with respect to the Disputed Item or Disputed Items to the Arbitrator, together with such other materials as modified by the Arbitrator deems appropriate, within 20 days after the appointment of the Arbitrator. The Purchaser and the Stockholders shall provide written instructions to the Arbitrator to submit a written decision on each Disputed Item to the Purchaser and the Stockholders as soon as practicable after its receipt of such resolution, materials. Any determination with respect to any Disputed Item shall become be final and binding upon on all parties to this Agreement and shall have the date legal effect of such resolutionan arbitral award. The Arbitrator shall comply with, and the arbitration shall be conducted in New York City in accordance with, the commercial arbitration rules of the AAA as in effect for commercial arbitrations conducted in New York City by the AAA. The fees and expenses disbursements of the Accounting Firm shall be apportioned by the Accounting Firm based on the degree to which each party's claims were unsuccessful and Arbitrator shall be paid 50% by the parties Stockholders and 50% by the Purchaser. Notwithstanding anything to the contrary in accordance with such determination. For example, if pursuant to this Section 2.4(c) Seller submitted an 2.3, no objection affecting the Purchase Price in the need be made with respect to any amount of $100,000 and prevailed as receivable that ultimately proves to $45,000 of the amount, then Seller would bear fifty-five percent (55%) of the fees and expenses of the Accounting Firmbe a Disqualified Receivable.
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