Post-Closing Adjustment Clause Samples
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Post-Closing Adjustment. (a) Within ninety (90) days after the Closing Date, Buyer shall prepare and deliver to Parent a final closing statement (the “Final Closing Statement”) as of 11:59 P.M. on the date immediately prior to the Closing Date, reflecting Buyer’s calculation of:
(i) the Net Working Capital, Closing Date Cash and Closing Date Indebtedness;
(ii) the difference between the Preliminary Cash Purchase Price and the cash Purchase Price shown on the Final Closing Statement (determined in accordance with Section 2.02 by substituting the Final Net Working Capital and Closing Date Cash and Closing Date Indebtedness amounts shown on the Final Closing Statement for those previously appearing on the Preliminary Closing Statement); and
(iii) the resulting final cash Purchase Price calculated in accordance with Section 2.02 (the “Final Cash Purchase Price”).
(b) The Final Closing Statement shall be prepared in good faith in accordance with the Calculation Principles. Buyer shall not be permitted to introduce different accounting principles, procedures, policies, practices, estimates, judgments or methodologies in the preparation of the Final Closing Statement or the determination of Net Working Capital, Closing Date Cash or Closing Date Indebtedness from the Calculation Principles. The Sellers and Buyer agree that no objection or challenge will be made with respect to the Target Net Working Capital.
(c) Parent may dispute Buyer’s calculation of the Final Closing Statement (or any element thereof) by notifying Buyer in writing, setting forth in reasonable detail the particulars of such disagreement (the “Notice of Objection”), within forty-five (45) days after Parent’s receipt of the Final Closing Statement. Any item or amount as to which no dispute is raised in the Notice of Objection will be final, conclusive and binding on the Parties for all purposes hereunder, unless such item or amount is by its nature adjusted in connection with the matters raised in the Notice of Objection. In the event that Parent does not deliver a Notice of Objection to Buyer within such forty-five (45) day period, Parent shall be deemed to have accepted Buyer’s calculation of the Final Cash Purchase Price set forth in the Final Closing Statement. In connection with the preparation of the Final Closing Statement and the Notice of Objection, each party shall permit the other party and its respective Representatives to have reasonable access to the books, records and other documents (including work papers...
Post-Closing Adjustment. (a) Within ninety (90) days after the Closing Date, Parent shall prepare and deliver to Representative a statement (the “Closing Statement”) calculating (i) the Purchase Price (excluding any Earn-out Payments), (ii) the Net Working Capital as of the Effective Time (the “Closing Net Working Capital”), and (iii) the Indebtedness of the Company as of the Effective Time (the “Closing Indebtedness”).
(b) If Representative disputes any amounts as shown on the Closing Statement, Representative shall deliver to Parent within thirty (30) days after receipt of the Closing Statement a notice (the “Dispute Notice”) setting forth Representative’s calculation of such amount and describing in reasonable detail the basis for the determination of such different amount. Any amounts not subject to the Dispute Notice shall be paid promptly pursuant to Section 2.11(c). If Representative does not deliver a Dispute Notice to Parent within such thirty (30) day period, then the Closing Statement prepared and delivered by Parent shall be deemed to be the “Final Closing Statement.” The Parties shall use commercially reasonable efforts to resolve such differences within a period of thirty (30) days after Representative has given the Dispute Notice. If the Parties resolve such differences, then the Closing Statement agreed to by the Parties shall be deemed to be the Final Closing Statement. If Parent and Representative do not reach a final resolution on the Closing Statement within thirty (30) days after Representative has given the Dispute Notice, unless Parent and Representative mutually agree to continue their efforts to resolve such differences, the Neutral Accountant shall resolve such differences, pursuant to an engagement agreement among Parent, Representative and the Neutral Accountant (which Parent and Representative agree to execute promptly), in the manner provided below. The Neutral Accountant shall only decide the specific items under dispute by the Parties (the “Disputed Items”), solely in accordance with the terms of this Agreement. Parent and Representative shall each be entitled to make a presentation to the Neutral Accountant, pursuant to procedures to be agreed to among Parent, Representative and the Neutral Accountant (or, if they cannot agree on such procedures, pursuant to procedures determined by the Neutral Accountant), regarding such Party’s determination of the amounts to be set forth on the Closing Statement; and the Parties shall use commercially reasonable...
Post-Closing Adjustment. (i) Purchaser shall prepare and deliver to Peanuts Seller within ninety (90) calendar days following the Closing Date a statement setting forth its calculation of the Closing Working Capital, which statement shall contain a balance sheet of the Peanuts Business as of the Closing Date (without giving effect to the transactions contemplated herein) and a calculation of the Closing Working Capital (the “Closing Date Statement”). The Closing Date Statement shall be prepared using the same accounting methods, practices, principles, policies, procedures, classifications, judgments and valuation and estimation methodologies that were used to calculate the Estimated Working Capital and calculated in the manner set forth in the template attached hereto as Exhibit J.
(ii) If Peanuts Seller does not notify Purchaser in writing within forty-five (45) calendar days after Peanuts Seller’s receipt of the Closing Date Statement that it disputes any of the information or calculations provided to Peanuts Seller in the Closing Date Statement, the Closing Date Statement shall be final and conclusive. If Peanuts Seller disagrees with any of the information or calculations provided by Purchaser in the Closing Date Statement, Peanuts Seller may, within forty-five (45) calendar days after delivery of such statement to it, deliver a written notice to Purchaser stating the existence and nature of such disagreement. Any such notice of disagreement shall specify those items or amounts as to which Peanuts Seller disagrees. If such notice of disagreement is delivered, the parties shall use their reasonable best efforts to reach agreement on the disputed items or amounts within ten (10) Business Days after Purchaser’s receipt of such notice. If the parties are unable to reach agreement on the disputed items within such period, then the issues in dispute will be submitted to a mutually agreed firm of nationally recognized independent certified public accountants (the “Accountants”) for review and resolution, with instructions to complete the review as promptly as practicable. Each party will furnish to the Accountants such workpapers and other documents and information relating to the disputed issues as the Accountants may request and are available to that party or its Affiliates (or its independent public accountants), and will be afforded the opportunity to present to the Accountants any material relating to the determination and to discuss the determination with the Accountants. The p...
Post-Closing Adjustment. (a) In the event that, during the period commencing from the Closing Date and ending eighteen (18) months after the Closing Date, (i) the Parent or the Surviving Corporation incurs any Damages (as defined below) with respect to, in connection with, or arising from any Parent Liabilities (as defined below), or (ii) a Company Stockholder shall be entitled to be indemnified for Damages under Article VI hereof, then, in the case of clause (i) above, promptly following the filing by the Parent with the Securities and Exchange Commission (the “SEC”) of an annual or quarterly report covering the completed fiscal quarter in which such Damages were incurred, or, in the case of clause (ii) above, promptly after such Company Stockholder becomes entitled to receive payment for such indemnification pursuant to ARTICLE VI, the Parent shall issue to, in the case of clause (i) above, all of the Company Stockholders and/or their designees, or, in the case of clause (ii) above, such Company Stockholder so entitled to indemnification and/or his designees, such number of shares of Parent Common Stock (in addition to the Merger Shares to which any such person was or is entitled) as would result from dividing (x) the whole dollar amount of such Damages by (y) $1.00 (subject to equitable adjustment in the event of any stock split, stock dividend, reverse stock split or similar event affecting the Parent Common Stock after the Effective Time), rounded up or down to the nearest whole number (with 0.5 shares rounded upwards to the nearest whole number). Notwithstanding the foregoing, the limit on the aggregate number of shares of Parent Common Stock issuable under this Section shall be 500,000 shares. Any shares of Parent Common Stock that are issuable under clause (i) above shall be issued to the Company Stockholders pro rata in accordance with their respective holdings of Company Stock immediately prior to the Closing.
(b) As used in this Section, “Parent Liabilities” shall mean all liabilities, obligations or indebtedness of any nature whatsoever (i) of the Split-Off Subsidiary, whenever accruing, and (ii) of the Parent or the Acquisition Subsidiary, accruing prior to the Effective Time and not set forth in the Parent Disclosure Schedule (as defined below), including, but not limited to (A) any breach by the Parent or the Acquisition Subsidiary of any of their respective representations or warranties set forth in Article III herein, (B) any litigation threatened, pending or for ...
Post-Closing Adjustment. (a) As promptly as possible, but in any event within 65 days after the Closing Date, Buyer shall deliver to Seller a consolidated unaudited balance sheet of the Company Group (the “Post-Closing Balance Sheet”), together with a post-closing financial certificate (the “Post-Closing Financial Certificate”) setting forth the calculation of the Closing Net Company Debt and the Net Working Capital (the “Closing Net Working Capital”), in each case based on the Post-Closing Balance Sheet and as of the close of business on the day immediately preceding the Closing Date, which shall be calculated on a basis consistent with the principles and methodologies used to prepare the Audited Balance Sheet and Schedule 2.2(b) and Schedule 2.2(c). The Closing Financial Certificate has been, and the Post-Closing Balance Sheet and Post-Closing Financial Certificate shall be, prepared (i) in accordance with GAAP applied on a basis consistent with the Audited Balance Sheet and (ii) otherwise applying the accounting principles and reflecting those adjustments and allocations described in Schedule 2.2(b) and Schedule 2.2(c) (collectively, the “Accounting Principles”). The Parties agree that the purpose of preparing the Closing Financial Certificate and the Post-Closing Financial Certificate and the related purchase price adjustment contemplated by this Section 2.7 is to measure the changes in Net Working Capital and Net Company Debt, and such processes are not intended to permit the introduction of judgments, accounting methods, policies, principles, practices, procedures, classifications or estimation methodologies that differ from the Accounting Principles for the purpose of preparing the Closing Financial Certificate or Post-Closing Financial Certificate. Without limiting the generality of Section 6.7, during the 65-day period following the Closing, Buyer will cause the Company Group to cooperate with Seller, and Seller and its accountants and advisors shall be permitted reasonable access to review the Company Group’s books and records and work papers, in connection with Buyer’s preparation of the Post-Closing Financial Certificate.
(b) After delivery of the Post-Closing Financial Certificate, if Seller has any objections to the Post-Closing Financial Certificate, Seller shall deliver to Buyer a statement setting forth its objections thereto (an “Objections Statement”). If an Objections Statement is not delivered to Buyer within 20 Business Days after delivery of the Post-Closing...
Post-Closing Adjustment. (a) No later than forty-five (45) days following the Closing Date, Aspen shall deliver to the Reinsurer a detailed statement in the same form as the Closing Statement (the “Final Closing Statement”) setting forth Aspen’s good faith calculation of (i) the New Reinsurance Premium (including the New Reinsurance Premium Accrued Interest, the Roll-forward Amount and the ULAE Reimbursement Amount) and (ii) the Initial Required Collateral Amount, in each case, as of the Closing Date, together with all accounting, actuarial and other data and documentation reasonably necessary for the Reinsurer to review ▇▇▇▇▇’s proposed final calculations of such amounts.
(b) Upon receipt of the Final Closing Statement, the Reinsurer and its authorized Representatives will be given reasonable access to all accounting, actuarial and other data and documentation related to the preparation of the Final Closing Statement for the purpose of, and to the extent reasonably necessary for, verifying the Final Closing Statement; provided, that no independent accountants or independent actuaries of Aspen shall be required to make any work papers available to the Reinsurer unless the Reinsurer has signed a customary agreement relating to such access to work papers in form and substance reasonably acceptable to such independent accountants or independent actuaries, as applicable. Within forty-five (45) days of the Reinsurer’s receipt of the Final Closing Statement, the Reinsurer may deliver written notice (the “True-Up Dispute Notice”) to Aspen of any objections, specifying in reasonable detail any contested amounts and the basis therefor, which the Reinsurer may have to the Final Closing Statement. The failure of the Reinsurer to deliver such True-Up Dispute Notice within the prescribed time period will constitute the Reinsurer’s acceptance as final of the Final Closing Statement as determined by ▇▇▇▇▇. Any amounts not disputed in the True-Up Dispute Notice (if one is delivered) shall be deemed to be accepted by the Reinsurer as final, except to the extent that such amounts are affected by any disputed amounts.
(c) If Aspen and the Reinsurer are unable to resolve all disagreements with respect to the Final Closing Statement within thirty (30) days following ▇▇▇▇▇’s receipt of a True-Up Dispute Notice (the “True-up Dispute Cooling-Off Period”), the items and amounts in dispute shall be submitted for review to the Independent Actuary for final determination within forty-five (45) days after suc...
Post-Closing Adjustment. The “Post-Closing Adjustment” may be either a positive or negative amount, and shall be equal to the sum of (a) (i) the amount of Working Capital set forth in the Final Closing Statement, minus (ii) the amount of Working Capital set forth in the Estimated Closing Statement, plus (b) (i) the amount of Net Indebtedness set forth in the Estimated Closing Statement, minus (ii) the amount of Net Indebtedness set forth in the Final Closing Statement. If the Post-Closing Adjustment is a positive amount, then Purchaser shall pay in cash to Parent (or one or more Affiliates designated by Parent) the absolute value of the amount of the Post-Closing Adjustment. If the Post-Closing Adjustment is a negative amount, then Parent (or an Affiliate designated by Parent) shall pay in cash to Purchaser the absolute value of the amount of the Post-Closing Adjustment. The Closing Purchase Price, as adjusted by the Post-Closing Adjustment, shall be the “Final Purchase Price.” Any such payment pursuant to this Section 2.7 shall be made by wire transfer of immediately available funds within five (5) Business Days after the determination of the Final Closing Statement to an account designated in writing by the party entitled to the payment within three (3) Business Days after the determination of the Final Closing Statement.
Post-Closing Adjustment. (i) Not later than ninety (90) days after the Closing Date, Buyer shall prepare and deliver to Seller a statement (the “Closing Working Capital Statement”), which statement shall be prepared in accordance with Canadian GAAP applied on a basis consistent with the calculation of the Estimated Closing Working Capital and contain:
(A) an unaudited balance sheet of Seller (without giving effect to the transactions contemplated hereby) as of the close of business on the day immediately prior to the Closing Date; and
(B) a calculation of the Closing Working Capital as of the close of business on the day immediately prior to the Closing Date.
(ii) The Post-Closing Adjustment, if any, shall be as follows:
(A) If the Post-Closing Adjustment is a Positive Adjustment Amount:
(1) but the Positive Adjustment Amount is less than the Excess Amount, Seller shall pay to Buyer the amount by which the Excess Amount exceeds the Positive Adjustment Amount; or
(2) Section 2.06(b)(i)(A)(1) does not apply, then Buyer shall pay to Seller an amount equal to the Positive Adjustment Amount, minus the Excess Amount, if any, or plus the Shortfall Amount, if any (as applicable).
(B) If the Post-Closing Adjustment is a Negative Adjustment Amount:
(1) but the Shortfall Amount is greater than the Negative Adjustment Amount, then Buyer shall pay to Seller an amount equal to the amount by which the Shortfall Amount exceeds the Negative Adjustment Amount; or
(2) Section 2.06(b)(ii)(B)(1) does not apply, then Seller shall pay to Buyer an amount equal to the Negative Adjustment Amount, minus the Shortfall Amount, if any, or plus the Excess Amount, if any (as applicable).
(C) If the Closing Working Capital is an amount which falls on or between the Working Capital Upper Target and the Working Capital Lower Target, and:
(1) the Cash Consideration paid to Seller was increased by the Excess Amount pursuant to Section 2.06(a)(ii), then Seller shall pay to Buyer an amount equal to such Excess Amount;
(2) the Cash Consideration paid to Seller was reduced by the Shortfall Amount pursuant to Section 2.06(a)(ii), then Buyer shall pay to Seller an amount equal to such Shortfall Amount; or
(3) there was no adjustment to the Cash Consideration paid to Seller pursuant to Section 2.06(a)(ii), then no Post-Closing Adjustment shall be required.
Post-Closing Adjustment. (a) The Final Purchase Price shall be calculated based upon the final calculation of the Closing Net Assets (as determined pursuant to Section 2.07 below). If the Closing Net Assets, as determined as provided in Section 2.07 below: (i) exceeds the Estimated Net Assets plus or minus the Net Cash Balance, then the Final Purchase Price shall be equal to: (A) the Estimated Purchase Price plus (B) the amount by which the Closing Net Assets exceeds the Estimated Net Assets plus or minus the Net Cash Balance; or (ii) is less than the Estimated Net Assets plus or minus the Net Cash Balance, then the Final Purchase Price shall be equal to: (A) the Estimated Purchase Price minus (B) the amount by which the Closing Net Assets is less than the Estimated Net Assets plus or minus the Net Cash Balance.
(b) If the Final Purchase Price as calculated pursuant to the provisions of Section 2.06(a) above exceeds the Estimated Purchase Price, the amount by which the Final Purchase Price exceeds the Estimated Purchase Price shall be paid by Buyer to the Seller. If the Final Purchase Price as calculated pursuant to Section 2.06(a) above is less than the Estimated Purchase Price, the amount by which the Estimated Purchase Price exceeds the Final Purchase Price shall be paid by the Seller to the Buyer.
(c) All payments required to be made pursuant to Section 2.06(b) above shall be paid to the party entitled to receive the same in cash or immediately available funds promptly, but in no event later than ten (10) business days following the determination of the Closing Net Assets as contemplated in Section 2.07 below, by delivery to such account as the party entitled to payment shall specify in writing, of an amount equal to the sum of any such payment together with interest thereon from, and including the Closing Date to, but excluding, the date of such payment at a variable rate per annum equal to the rate announced publicly by Bank of America National Trust and Savings Association from time to time as its "base rate". The date on which such payment shall occur is referred to herein as the "Supplemental Closing".
Post-Closing Adjustment. (i) Within 90 days after the Closing Date, Buyer shall prepare and deliver to the Sellers’ Representative a statement setting forth its calculation of Closing Working Capital, which statement shall contain a balance sheet of the Company as of the Closing Date (without giving effect to the transactions contemplated herein), a calculation of Closing Working Capital (the “Closing Working Capital Statement”) prepared in accordance with Schedule 2.3(a).