Post-Closing Adjustment Clause Samples
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Post-Closing Adjustment. (a) As soon as reasonably practicable following the Closing Date, and in any event within sixty (60) calendar days thereof, Buyer shall prepare and deliver to the Company Stockholder Representative a schedule setting forth, in reasonable detail, B▇▇▇▇’s good faith calculations of the Adjustment Amount, including calculations of the Closing Indebtedness Amount and the Closing Transaction Expenses, prepared in accordance with GAAP (the “Post-Closing Adjustment Schedule”). If the Company Stockholder Representative shall disagree with any calculations in the Post-Closing Adjustment Schedule, it shall notify Buyer of such disagreement in writing within five (5) Business Days of the date Buyer delivers the Post-Closing Adjustment Schedule (the last day of such period, the “Response Date”), setting forth in reasonable detail the particulars of such disagreement (such notice, a “Dispute Notice”). In the event that the Company Stockholder Representative does not provide a Dispute Notice on or prior to 5:00pm Eastern Time on the Response Date, the Post-Closing Adjustment Schedule as delivered by Buyer, including Buyer’s calculation of the Adjustment Amount and the components thereof, shall be final, binding and conclusive for all purposes hereunder. In the event any Dispute Notice is timely provided, Buyer and the Company shall promptly meet and attempt in good faith to resolve the disputed item(s) and negotiate an agreed-upon determination of the items relating to such dispute, and any such agreed-upon items shall be deemed to have been finally determined for all purposes of this Agreement.
(b) In the event that any disputed items set forth in a Dispute Notice remain unresolved after thirty (30) calendar days of the delivery of the Dispute Notice, such remaining disagreements shall be resolved by an independent accounting or financial consulting firm of recognized national standing to be mutually selected (neither party to unreasonably withhold, condition or delay their selection) by B▇▇▇▇ and the Company Stockholder Representative (such firm, the “Independent Auditor”). Each of Buyer and the Company Stockholder Representative shall promptly provide their respective assertions regarding the Adjustment Amount, the Closing Indebtedness Amount and/or the Closing Transaction Expenses, as applicable, in writing to the Independent Auditor and to each other as promptly as possible after the engagement of the Independent Auditor. The Independent Auditor shall be instructed...
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. Promptly after the Closing Date, Seller will prepare and, within 30 days of the Closing Date, deliver to Buyer a calculation of the Cash Portion of the Purchase Price based on a balance sheet of the relevant items as of the Closing Date (the "Final Balance Sheet"), together with Supporting Schedules thereto. The Final Balance Sheet shall be prepared in accordance with generally accepted accounting principles consistently applied and as though the parties had not consummated the transactions contemplated by this Agreement. Following the Closing, either (i) Seller shall pay Buyer an amount equal to the decrease, if any, between the Cash Portion of the Purchase Price as reflected on the Final Balance Sheet or the Adjusted Final Balance Sheet, as the case may be, as compared with the Cash Portion of the Purchase Price as reflected on the Closing Balance Sheet or (ii) Buyer shall pay Seller an amount equal to the increase, if any, between the Cash Portion of the Purchase Price as reflected on the Final Balance Sheet or the Adjusted Final Balance Sheet, as the case may be (the payment referred to in clause (i) or (ii) above shall be referred to as the "Post-Closing Adjustment") as compared with the Cash Portion of the Purchase Price as reflected on the Closing Balance Sheet. Such payments shall be made by wire transfer or certified or bank cashier's check within ten (10) business days of adoption of the Final Balance Sheet or the notice from the Accounting Firm of the Adjusted Final Balance Sheet, as the case may be. No payment shall be made by either party if the Cash Portion of the Purchase Price as reflected on the Closing Balance Sheet is equal to the Cash Portion of the Purchase Price as reflected on the Final Balance Sheet or the Adjusted Final Balance Sheet, as the case may be.
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. Within 90 days after the Closing Date, US Buyer shall prepare and deliver to Parent a statement setting forth its calculation of the Closing Working Capital, Closing Cash, Closing Indebtedness, Transaction Expenses and all amounts owed to or from the LiveArea Companies and any Related Party or Sellers or their Affiliates (excluding the LiveArea Companies) pursuant to the agreements described in Section 7.02(m) or otherwise (and reasonable supporting documentation related thereto), which statement shall contain an unaudited balance sheet of the LiveArea Companies as of the Closing Date (without giving effect to the transactions contemplated herein) (the “Closing Statement”) and a certificate of the Chief Financial Officer of US Buyer that the unaudited balance sheet of the LiveArea Companies as of the Closing Date was prepared in accordance with Exhibit A. The post-closing adjustment shall be an amount equal to the sum of the following: (A) if there was a Working Capital Closing Reduction and Closing Working Capital exceeds Estimated Closing Working Capital, the amount of such excess up to a maximum of the Working Capital Closing Reduction expressed as a positive number, (B) if there was no Working Capital Closing Reduction and Closing Working Capital exceeds Target Working Capital, $0, (C) if there was a Working Capital Closing Reduction and Estimated Closing Working Capital exceeds Closing Working Capital, the amount of such excess expressed as a negative number, (D) if there was no Working Capital Closing Reduction and Target Working Capital exceeds Closing Working Capital, the amount of such excess expressed as a negative number, (E) Closing Cash minus Estimated Closing Cash, (F) Estimated Closing Indebtedness minus Closing Indebtedness,(G) Estimated Transaction Expenses minus Transaction Expenses, (H) all amounts owed to the LiveArea Companies from any Related Party or Sellers or their Affiliates (excluding the LiveArea Companies) pursuant to the agreements described in Section 7.02(m) or otherwise as of the Closing Date to the extent that the LiveArea Companies received one or more payments of cash for such amounts within 60 days after the Closing Date, subject to a cap of $1,000,000 and reduced by (I) fifty percent (50%) to the extent any of such amounts relate to receivables from parties domiciled in India, and (II) fourteen and one-half percent (14.5%) to the extent any of such amounts relate to receivables from parties domiciled in Bulgaria, expre...
Post-Closing Adjustment. (a) Within five (5) Business Days after the Closing Date, the Company shall deliver to the Purchaser a certificate, executed on behalf of the Company by an authorized officer of the Company, that sets forth the total number of Class A Shares (the “Closing Date Shares”) which, in aggregate, represents eighteen and one-half percent (18.5%) of the total Ordinary Shares as of the Closing Date, as rounded up to the nearest multiple of eighteen (18), calculated on a fully-diluted basis (as defined herein) after giving effect to the issuance of Issued Shares to the Purchaser (the “Closing Date Shares Notice”).
(b) If the total Closing Date Shares exceeds the Purchased Shares purchased by the Purchaser on the Closing Date, the Purchaser shall have the option, exercisable in its sole discretion by written notice to the Company (the “Additional Issued Shares Election Notice”) within five (5) Business Days from the receipt of the Closing Date Shares Notice, to purchase, and the Company shall issue and sell to the Purchaser, such number of additional Class A Shares (the “Additional Issued Shares”) specified by the Purchaser in the Additional Issued Shares Election Notice, which shall not exceed the difference between (i) the total Closing Date Shares, less (ii) the total Issued Shares purchased by the Purchaser on the Closing Date. The purchase price shall be US$30.50 per each 18 Additional Issued Shares, and the aggregate purchase price for the Additional Issued Shares (the “Additional Issued Shares Purchase Price”) shall be that per share price multiplied by the total number of Additional Issued Shares elected to be acquired by the Purchaser
(c) The closing of the issuance and sale by the Company, and the purchase by the Purchaser, of the Additional Issued Shares shall take place on the date specified by the Purchaser in the Additional Issued Shares Election Notice, which date shall be within twenty (20) days following the date of the Additional Issued Shares Election Notice. At such closing:
(i) the Purchaser shall pay the Additional Issued Shares Purchase Price to the Company for the Additional Issued Shares to be issued and sold to the Purchaser at such closing, by electronic bank transfer of immediately available funds to the Funds Account; and
(ii) the Company shall deliver to the Purchaser (A) a share certificate representing the Additional Issued Shares, duly executed on behalf of the Company and registered in the name of the Purchaser, and (B) a certified co...
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. (i) As soon as practicable, but in any event no later than ninety (90) days following the Closing Date, the Buyer shall cause to be prepared and delivered to the Seller a good faith statement, including reasonable detail, of the Working Capital Adjustment, the Earnings Adjustment and the Purchase Price (such statement, as it may be adjusted pursuant to Section 2(f)(ii), the “Closing Statement”). The Seller shall use its commercially reasonable efforts to provide the Buyer and the Buyer’s representatives with such information as is reasonably required by the Buyer with respect to the preparation of the Closing Statement.
(ii) Upon receipt of the Closing Statement, the Seller and the Seller’s independent accountants shall be permitted during the succeeding sixty (60)-day period to communicate with the Buyer and to examine the work papers used or generated in connection with the preparation of the Closing Statement and such other documents as the Seller may reasonably request in connection with its review of the Closing Statement, including all monthly and audited financial statements for the Partnership. Within sixty (60) days of receipt of the Closing Statement, the Seller shall deliver to the Buyer a written statement describing in reasonable detail its objections (if any) to any amounts or items set forth on the Closing Statement. If the Buyer does not receive, within sixty (60) days of the Seller’s receipt of the Closing Statement, the Seller’s written statement describing in reasonable detail the Seller’s objections (and the Seller is not deemed to have timely objected pursuant to the preceding sentence), the Closing Statement shall become final and binding. If the Seller raises written objections within the sixty (60)-day period (or the Seller is deemed to have timely objected pursuant to the preceding sentence), the Parties shall use their respective commercially reasonable efforts to negotiate in good faith to resolve any such objections. If the Parties are unable to resolve any disputed item, other than matters involving the application or interpretation of the Law or other provisions of this Agreement, within thirty (30) days after the Buyer’s receipt of the Seller’s written objections, any such disputed items shall be submitted to a nationally recognized independent accounting firm mutually agreeable to the Parties who shall be instructed to resolve such disputed item in accordance with GAAP within thirty (30) days. The resolution of such disputes...
Post-Closing Adjustment. (i) If the Closing Purchase Price is greater than the Final Purchase Price (such difference, the “Post-Closing Adjustment Shortfall Amount”), then Buyer and the Stockholders’ Agent shall, within three (3) Business Days of the determination of the Final Purchase Price in accordance with this Section 2.16, jointly instruct the Escrow Agent to pay the Post-Closing Adjustment Shortfall Amount to Buyer out of the Purchase Price Adjustment Escrow Fund by wire transfer in immediately available funds. If the amount of funds in the Purchase Price Adjustment Escrow Fund exceeds the Post-Closing Adjustment Shortfall Amount, then Buyer and the Stockholders’ Agent shall also jointly instruct the Escrow Agent to, after paying the Post-Closing Adjustment Shortfall Amount to Buyer, pay to each Company Stockholder its Pro Rata Portion of the remaining amount of funds in the Purchase Price Adjustment Escrow Fund. If the Purchase Price Adjustment Escrow Fund is insufficient to cover the Post-Closing Adjustment Shortfall Amount, then Buyer and the Stockholders’ Agent shall jointly instruct the Escrow Agent to distribute the entire Purchase Price Adjustment Escrow Fund to Buyer as provided above.
(ii) If the Final Purchase Price is greater than the Closing Purchase Price (such excess amount, the “Post-Closing Adjustment Excess Amount”), then the Company Stockholders shall be entitled to receive such excess amount, and Buyer shall, within five (5) Business Days of the determination of the Final Purchase Price in accordance with this Section 2.16, pay to the Paying Agent an amount equal to the Post-Closing Adjustment Excess Amount which shall be distributed to the Company Stockholders as Merger Consideration in accordance with Section 2.8. Notwithstanding the foregoing, any Post-Closing Adjustment Excess Amount shall be payable in cash and Buyer Common Shares in proportion to the total Cash Merger Consideration and the total Stock Merger Consideration; provided, that the portion of the Additional Consideration payable in Buyer Common Shares shall be calculated based on the Buyer Average Stock Price as of the date of such payment. Concurrently with the payment of the Post-Closing Adjustment Excess Amount, Buyer and the Stockholders’ Agent shall also jointly instruct the Escrow Agent to pay to each Company Stockholder its Pro Rata Portion of the remaining amount of funds in the Purchase Price Adjustment Escrow Fund.
Post-Closing Adjustment. (i) As promptly as practicable, and in any event no later than ninety (90) days after the date hereof, Parent shall cause to be prepared and delivered to the Shareholders a statement (the "Statement") showing (a) a calculation, based on the books and records of the Companies as of the Closing Date, of the Long-Term Debt (as defined below), the Current Assets (as defined below) and the Current Liabilities (as defined below), and (b) the Final Cash Consideration (determined as set forth below).
(ii) The Closing Cash Consideration has been determined by agreement of Parent and the Shareholders as being an acceptable estimate of 90% of the Final Cash Consideration payable to the Shareholders hereunder. To arrive at the Final Cash Consideration, there shall be deducted from $XXX (a) the amount, if any, by which Long-Term Debt as shown on the Statement exceeds $137,656 (or such higher amount for which the Parent has given its prior written approval) and (b) the amount, if any, by which XXX times Current Liabilities exceeds Current Assets. The resulting amount shall be the Final Cash Consideration.
(iii) If the Final Cash Consideration as shown on the Statement exceeds the Closing Cash Consideration, Parent will pay to the Shareholders (in the percentages shown on Exhibit 1.1) the amount of the excess in cash within 10 days after the date of delivery of the Statement to the Shareholders. If the Closing Cash Consideration exceeds the Final Cash Consideration, as shown on the Statement, the Shareholders will pay to Parent the amount of the excess in cash within 10 days after the date of delivery of the Statement to the Shareholder.
(iv) For purposes of the Agreement (a) the term "Long-Term Debt" shall mean all long-term liabilities of the Companies as of the Closing Date, including deferred taxes and capitalized lease obligations, all as determined in accordance with U.S. generally accepted accounting principles consistently applied ("GAAP"); (b) the term "Current Assets" shall mean the current assets of the Company as of the Closing Date, as determined in accordance with GAAP; and (c) the term "Current Liabilities" shall mean the current liabilities of the Company as of the Closing Date, as determined in accordance with GAAP; provided, however, that all expenses of the Company or the Shareholders (other than the audit fee to be paid by the Company to KPMG Peat Marwick) incurred in connection with the transactions contemplated hereby which are payable by the Compan...