Post-Closing Adjustment Clause Samples
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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. (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. (a) No more than three (3) Business Days prior to the Closing Date and no more than two (2) Business Days after the Closing Date, an employee of Seller and one or more representatives or employees of Buyer shall calculate the quantity of sulfur, rock, ammonia and finished goods included in the Inventory located at the Facilities based upon a physical examination thereof. As soon as practicable (but in no event more than five (5) Business Days) following such physical examination, such employee of Seller and a representative or employee of Buyer shall summarize such Inventory calculations on a report (the “Inventory Report”) and deliver the Inventory Report to Buyer and Seller. The Inventory Report shall be executed and delivered by each of Buyer and Seller to the other party, and the quantity of such Inventory set forth thereon, absent manifest error, shall be final and binding on Buyer and Seller for purposes of calculating Net Working Capital on the Closing Date under this Section 3.5. The value of the Inventory set forth on the Inventory Report shall be determined in accordance with the accounting methods, practices, policies, procedures and estimation methods used to prepare the Balance Sheet.
(b) As soon as reasonably practicable, but in no event later than ninety (90) days after the Closing Date, Buyer shall prepare and cause to be delivered to Seller a certificate of the Chief Financial Officer of Buyer certifying (i) its good faith calculation of the Purchase Price, setting forth, in reasonable detail, a good faith calculation of each of the adjustments set forth in Section 3.2 (the “Final Purchase Price”) and (ii) a balance sheet for the Business as of immediately prior to the Closing prepared on a basis consistent with the accounting methods, practices, policies, procedures and estimation methods used to prepare the Balance Sheet and including all of the entries contained in Schedule 3.4(a) (the “Final Balance Sheet”).
(i) If the Estimated Purchase Price is greater than the Final Purchase Price, the Purchase Price shall be adjusted downward dollar-for-dollar and Seller shall pay to Buyer the amount of such reduction, and (ii) if the Estimated Purchase Price is less than the Final Purchase Price, the Purchase Price shall be adjusted upward dollar-for-dollar and Buyer shall pay to Seller the amount of such increase (each a “Post-Closing Adjustment Amount”). Any Post-Closing Adjustment Amount shall be paid by wire transfer of immediately available f...
Post-Closing Adjustment. (a) Not later than thirty (30) days after the Closing Date, Parent shall prepare a financial data schedule (the "Parent Financial Data Schedule") of the Company and its Subsidiaries presenting, as of the Closing Date, Parent's good faith calculation of (i) the Other Indebtedness and (ii) the Transaction Expenses. The Company Financial Data Schedule and the Parent Financial Data Schedule and the items set forth therein shall each be prepared in accordance with GAAP applied on a basis consistent with the Company Financial Statements, except to the extent otherwise provided herein. In connection with the Parent Financial Data Schedule all (i) known arithmetic errors contained in the Company Financial Data Schedule shall be taken into account and (ii) assuming compliance with the immediately preceding sentence, no changes in accounting principles, policies, practices, procedures or methodologies shall be made from those utilized in preparing the Company Financial Data Schedule, including, without limitation, with respect to the nature and classification of accounts or the determination of the level of reserves, accruals or materiality. The Company Financial Data Schedule and the Parent Financial Data Schedule shall each be accompanied by all necessary and appropriate supporting work papers and materials. With respect to the Parent Financial Data Schedule, if these work papers and materials are materially deficient or incomplete, the Review Period referenced in Section 3.3(b) hereof shall be extended to give the Holders' Representatives' accountants sufficient time to complete their review of the Parent Financial Data Schedule.
(b) Following receipt of the Parent Financial Data Schedule and supporting work papers and materials, the Holders' Representatives and its accountants will be afforded a period of thirty (30) days (the "Review Period") to review the Parent Financial Data Schedule. At or before the end of the Review Period, the Holders' Representatives may deliver to Parent a written notice (an "Objection Notice") in accordance with paragraph (d) of this Section 3.3 disputing the Parent Financial Data Schedule. Any Objection Notice shall specify in reasonable detail the dollar amount of any objection and the basis therefor. Any determination expressly set forth on the Parent Financial Data Schedule which is not specifically objected to in the Objection Notice shall be deemed final and binding upon the parties upon delivery of the Objection Notice If the H...
Post-Closing Adjustment. 4.1 Calculation of the Actual Assets Amount
(a) By no later than April 10, 2014, the Seller shall provide the final value amount (book value in JPY under JAPAN-GAAP which the Seller complies with) and final quantities of the Assets and reasonable supporting documents (other than cash) as of March 31, 2014 (for WIP, raw materials and spare parts, as of 8:30 AM (Japan Time); (the “Actual Assets Amount”), and shall notify the amount with the reasonable supporting documents to the Purchaser in writing thereof. The Purchaser shall cooperate in order to enable the Seller to finalize its calculation.
(b) If the Purchaser agrees on the amount notified by the Seller (the “Notified Assets Amount”), or does not notify any proposal to modify the Notified Assets Amount to the Seller within 10 business days from the receipt of the notification from the Seller (the “Seller’s Notification”), the Notified Assets Amount shall be the Actual Assets Amount.
(c) If the Purchaser has a proposal to modify the Notified Assets Amount, the Purchaser shall notify the proposal to the Seller in writing within 10 business days from the receipt of the Seller’s Notification, and shall have good faith discussions to determine the amount with the Seller. If the Parties do not agree on the amount within 30 calendar days from the receipt of the Seller’s Notification, a reputable accounting firm determined by the Parties shall review the Notified Assets Amount and determine the Actual Assets Amount. The costs and expenses to be paid to the accounting firm shall be equally borne by the Parties.
4.2 If the amount obtained by deducting the Estimated Assets Amount from the Actual Assets Amount is a positive figure, the Purchaser shall pay to the Seller an amount equal to such difference as an increase in consideration for the Transferred Business, within 30 calendar days from the date on which the Actual Assets Amount is determined in accordance with Section 4.1 (b) or (c).
4.3 If the amount obtained by deducting the Estimated Assets Amount from the Actual Assets Amount is a negative figure, the Seller shall pay to the Purchaser an amount equal to such difference as a reduction from the consideration for the Transferred Business, within 30 calendar days from the date on which the Actual Assets Amount is determined in accordance with Section 4.1 (b) or (c).
Post-Closing Adjustment. (a) As promptly as reasonably practicable, but no later than sixty (60) days immediately following Closing, the Purchaser shall prepare and deliver to the Seller an unaudited balance sheet of the Company (the "Closing Balance Sheet") as of the Financial Closing Date, together with a certificate, executed by the Purchaser's chief financial officer (or equivalent), setting forth the Purchaser's calculation, including the components thereof, of the Closing Working Capital (together, the "Calculation").
(b) The Purchaser shall provide the Seller and its accountants with such access to the applicable personnel, books, records, information, materials, and data of the Company, as reasonably requested by the Seller, for the purpose of the Seller verifying the calculations provided by the Purchaser in the Closing Balance Sheet.
(c) The Seller will notify the Purchaser in writing if it has any objections (which must be made in good faith) to the Calculation. The Seller will be deemed to have accepted the Calculation, and the Calculation will be deemed to be finalized, if the Seller does not give the Purchaser notice of its objections within forty-five (45) days from the date of receipt of the Calculation. A notice of objection must contain a statement setting forth in reasonable detail the basis of the Seller's objections and each amount in dispute.
(d) If the Seller makes good faith objections to the Calculation within the period set forth in Section 2.02(c) above, the Purchaser and the Seller will work expeditiously and in good faith to resolve the matters in dispute within a period of twenty (20) days after the date the Purchaser receives notice of the Seller's objections. If the Purchaser and the Seller cannot resolve their dispute within such period, the dispute will be submitted for determination to the firm of accountants first set forth in Section 2.02(d) of the Purchaser's Disclosure Letter, or if such firm of accountants is not available or willing to perform, to the firm of accountants next set forth in Section 2.02(d) of the Purchaser's Disclosure Letter, or if neither such firm of accountants is available or willing to act, to an independent firm of chartered accountants or certified public accountants of international standing or affiliation and qualified to make the determination (which is not at such time otherwise retained by either the Seller or the Purchaser or any of their respective Affiliates), mutually agreed to by the Seller and the Purchaser...
Post-Closing Adjustment. (i) If the DBC Net Book Value (calculated using the Closing Date Balance Sheet) is less than the Minimum DBC Net Book Value, then Purchasers shall be entitled to receive the amount by which such DBC Net Book Value was less than the amount of the Minimum DBC Net Book Value (“Purchaser Post-Closing Net Book Value Adjustment”). If the DBC Net Book Value (calculated using the Closing Date Balance Sheet) is greater than the Minimum DBC Net Book Value, then Sellers shall be entitled to receive the amount by which such DBC Net Book Value was greater than the amount of the Minimum DBC Net Book Value (“Seller Post-Closing Net Book Value Adjustment”).
(ii) If the Statutory Surplus Amount is less than the Minimum Statutory Surplus Amount (calculated using the Closing Date Balance Sheet), then Purchasers shall be entitled to receive the amount by which the Statutory Surplus Amount was less than the amount of the Minimum Statutory Surplus Amount (“Purchaser Post- Closing Statutory Surplus Adjustment”). If the Statutory Surplus Amount is greater than the Minimum Statutory Surplus Amount (calculated using the Closing Date Balance Sheet), then Sellers shall be entitled to receive the amount by which the Statutory Surplus Amount was greater than the amount of the Minimum Statutory Surplus Amount (“Seller Post-Closing Statutory Surplus Adjustment”).
(iii) Any Post-Closing Adjustment shall be due and payable in cash within three (3) Business Days of the date on which the Closing Date Balance Sheet (together with the DBC Net Book Value and the Statutory Surplus Amount) is either accepted or otherwise finally determined pursuant to this Section 2.8 (“Post-Closing Adjustment Payment”). Any Post-Closing Adjustment attributable to NORDIC shall be adjusted by a factor of 0.75 to account for the Moda’s 75% ownership of NORDIC; provided, if Moda’s ownership of NORDIC changes prior to Closing then such adjustment factor shall be revised to reflect such ownership.
(iv) If Purchasers are owed a Post-Closing Adjustment Payment, then at Purchaser Representative’s sole election and upon Purchaser Representative sending a request to Seller Representative, Purchaser Representative and Seller Representative shall promptly deliver to Escrow Agent joint written instructions to the Escrow Agent instructing the Escrow Agent to disburse to Purchasers the full amount or any portion of such Post-Closing Adjustment Payment from the Standard Escrow Amount (with any balance to be paid in cash pursuant...
Post-Closing Adjustment. (a) Within one hundred twenty (120) days following the Closing Date, AppNet shall cause ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP ("AppNet's Accountant") to audit the Company's books to determine the accuracy of the information set forth on the Closing Financial Certificate (the "Post-Closing Audit"). The parties acknowledge and agree that for purposes of determining the Net Worth of the Company as of the Closing Date, the value of the assets of the Company shall, except with the prior written consent of AppNet, be calculated as provided in the last sentence of Section 7.12. The Stockholders shall cooperate and shall use their reasonable efforts to cause the officers and employees of the Company to cooperate with AppNet and AppNet's Accountant after the Closing Date in furnishing information, documents, evidence and other assistance to AppNet's Accountant to facilitate the completion of the Post-Closing Audit within the aforementioned time period. In the event that AppNet's Accountant determines that the actual Net Worth of the Company as of the Closing Date was less than the Net Worth set forth as the Net Worth of the Company on the Closing Financial Certificate, AppNet shall deliver a written notice (the "Financial Adjustment Notice") to the Stockholder Representative (as defined in Section 2.5) setting forth (i) the determination made by AppNet's Accountant of the actual Net Worth of the Company (the "Actual Company Net Worth"), (ii) the Purchase Price that would have been payable at Closing pursuant to Sections 2.2 and 2.3 had the Actual Company Net Worth been reflected on the Closing Financial Certificate, and (iii) the amount, if any, by which the Cash Payment would have been reduced at Closing had the Actual Company Net Worth been used in the calculations pursuant to Sections 2.2 and 2.3 (the "Adjustment"). The Adjustment shall take account of the reduction, if any, to the Purchase Price already taken pursuant to Section 2.3.
(b) The Stockholder Representative shall have thirty (30) days from the receipt of the Financial Adjustment Notice to notify AppNet if the Stockholders dispute such Financial Adjustment Notice. If AppNet has not received notice of such a dispute within such 30-day period, AppNet shall be entitled to receive from the Stockholder Representative the Adjustment, in cash or, at the option of the Stockholder Representative, in AppNet Common Stock valued at $6.00 per share, as adjusted pursuant to this Section 2.4(b) (the "Stock Price"), on the thirtieth d...
Post-Closing Adjustment. In the event that, during the period commencing from the Closing Date and ending on the second anniversary of the Closing Date, the Parent or the Surviving Corporation incurs any Loss (as defined below) with respect to, in connection with, or arising from any Parent Liabilities (as defined below), then promptly following the filing by the Parent with the Securities and Exchange Commission (the “SEC”) of a quarterly report relating to the most recent completed quarter for which such determination has been made, the Parent shall issue to the Company Stockholders and/or their designees such number of shares of Parent Common Stock as would result from dividing (x) the whole dollar amount representing such Losses by (y) the PPO Price, rounded to the nearest whole number (with 0.5 shares rounded upwards to the nearest whole number). The limit on the aggregate number of shares of Parent Common Stock issuable under this Section 1.16 shall be 3,100,000 shares. As used in this Section 1.16: (a) “Loss” shall mean any and all costs and expenses, including reasonable attorneys’ fees, court costs, reasonable accountants’ fees, and damages and losses, net of any insurance proceeds actually received by the Party suffering the Loss with respect thereto; (b) “Claims” shall include, but are not limited to, any claim, notice, suit, action, investigation, other proceedings (whether actual or threatened); and (c) “Parent Liabilities” shall mean all Claims against and liabilities, obligations or indebtedness of any nature whatsoever of Split-Off Subsidiary, whenever accruing, and of the Parent and the Acquisition Subsidiary, accruing on or before the Closing Date (whether primary, secondary, direct, indirect, liquidated, unliquidated or contingent, matured or unmatured), including, but not limited to (i) any litigation threatened, pending or for which a basis exists against the Parent or any Parent Subsidiary (as defined in this Agreement); (ii) any and all outstanding debts owed by the Parent or any Parent Subsidiary; (iii) any and all internal or employee related disputes, arbitrations or administrative proceedings threatened, pending or otherwise outstanding, (iv) any and all liens, foreclosures, settlements, or other threatened, pending or otherwise outstanding financial, legal or similar obligations of the Parent or any Parent Subsidiary, (v) any and all Taxes for which Parent or any of its direct or indirect assets may be liable or subject, for any taxable period (or porti...
Post-Closing Adjustment. (A) At least seven Business Days before the Closing, Seller shall prepare and deliver to Purchaser a statement setting forth its good faith estimate of the Minimum Net Capital and Excess Net Capital (together, the “Estimated Net Capital”), a reasonably detailed calculation of Estimated Net Capital (the “Estimated Net Capital Statement”) prepared using the same accounting methods, practices, principles, policies and procedures, with consistent classifications, judgments and valuation and estimation methodologies that were used in the preparation of the most recent monthly Focus Report (United States Securities and Exchange Commission Form X-17A-5) (a “Focus Report”) as if such Estimated Net Capital Statement was being prepared as of the Closing Date, which shall include the following adjustments: any and all accruals necessary to ensure all expenses that have been incurred, but not paid, are reflected in the Estimated Net Capital (including prorated franchise, other taxes and expenses, accrued but unpaid severance as set forth herein, etc.), but only to the extent such adjustments are prepared in accordance with GAAP, for the periods prior to and through the date of the calculation of Estimated Net Capital (herein, “Normal Adjustments”). For the avoidance of doubt, Estimated Net Capital shall give effect to (and be reduced by) Seller’s good faith estimate of the dividend of Excess Net Capital to be made immediately prior to Closing pursuant to Section 1.1(e).
(B) Within 60 days after the Closing Date, Purchaser shall prepare and deliver to Seller a statement setting forth its good faith calculation of Net Capital and the Post-Closing Adjustment (as defined below) (the “Net Capital Statement”) prepared using the same accounting methods, practices, principles, policies and procedures, with consistent classifications, judgments and valuation and estimation methodologies that were used in the preparation of the most recent monthly Focus Report as if such Net Capital Statement was being prepared as of the Closing Date, which shall include Normal Adjustments.
(C) The post-closing adjustment shall be an amount equal to the Net Capital minus the Estimated Net Capital (the “Post-Closing Adjustment”). If the Post-Closing Adjustment is a positive number, Purchaser shall pay to Seller, by wire transfer of immediately available funds, an amount equal to the Post-Closing Adjustment. If the Post-Closing Adjustment is a negative number, Seller shall pay to Purchaser, by wi...