Post-Closing Adjustment Clause Samples
POPULAR SAMPLE Copied 55 times
Post-Closing Adjustment. (i) As promptly as reasonably practicable, but in no event later than one hundred twenty (120) calendar days following the Closing Date, Parent shall cause to be prepared in accordance with the Specified Accounting Principles and delivered to the Shareholder Representative an unaudited consolidated balance sheet of the Company as of the close of business on the day immediately prior to the Closing Date (the “Closing Balance Sheet”), together with a statement (the “Parent Closing Statement”) setting forth in reasonable detail Parent’s calculation of Closing Working Capital.
(ii) From and after the delivery of the Closing Balance Sheet and the Parent Closing Statement, Parent shall provide the Shareholder Representative and any accountants or advisors retained by the Shareholder Representative with reasonable access during normal business hours to the books and records of the Surviving Corporation for the purposes of: (A) enabling the Shareholder Representative and its accountants and advisors to calculate, and to review Parent’s calculation of Closing Working Capital; and (B) identifying any dispute related to the calculation of Closing Working Capital set forth in the Parent Closing Statement.
(iii) If the Shareholder Representative disputes the calculation of Closing Working Capital set forth in the Parent Closing Statement, then the Shareholder Representative shall deliver a written notice (a “Dispute Notice”) to Parent and the Escrow Agent during the thirty (30)-day period commencing upon receipt by the Shareholder Representative of the Closing Balance Sheet and the Parent Closing Statement (the “Review Period”). The Dispute Notice shall set forth, in reasonable detail, the principal basis for the dispute of such calculation.
(iv) If the Shareholder Representative does not deliver a Dispute Notice to Parent prior to the expiration of the Review Period, Parent’s calculation of Closing Working Capital set forth in the Parent Closing Statement shall be deemed final and binding on Parent, the Shareholder Representative and Equityholders for all purposes of this Agreement.
(v) If the Shareholder Representative delivers a Dispute Notice to Parent prior to the expiration of the Review Period, then the Shareholder Representative and Parent shall use commercially reasonable efforts to reach agreement on the calculation of Closing Working Capital. If the Shareholder Representative and Parent are unable to reach agreement on the calculation of Closing Working Capi...
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) 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. 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) 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 Consideration shall be subject ----------------------- to adjustment after the Closing Date as specified in this Section 1.3.
(a) Within one hundred twenty (120) days following the Closing Date, NII shall cause PricewaterhouseCoopers LLP ("NII's Accountant") to audit the Company's books to determine the accuracy of the information set forth in the Closing Financial Certificate (the "Post-Closing Audit"). Such audit shall be conducted in accordance with Generally Accepted Auditing Standards. The parties acknowledge and agree that for purposes of determining the tangible net worth of the Company as of June 30, 1998 and the earnings before interest and taxes, after giving effect to the Interim Period Add-Backs ("Adjusted EBIT") for the twelve months ended March 31, 1998, the value of the assets of the Company and the earnings of the Company shall, except with prior written consent of NII, be calculated as provided in the last paragraph of Section 6.9. In addition, the parties agree that the Post-Closing Audit will be limited to only a verification of the actual numbers and not whether an add-back adjustment is properly included as an add-back item. The Shareholder shall cooperate and shall use his reasonable efforts to cause the officers and employees of the Company to cooperate with NII and NII's Accountant after the Closing Date in furnishing information, documents, evidence and other assistance to NII's Accountant to facilitate the completion of the Post-Closing Audit within the aforementioned time period. Without limiting the generality of the foregoing, within two (2) weeks after the Closing, the Shareholder shall provide NII's Accountant with the information and/or documents requested on the Post-Closing Audit Checklist set forth as Schedule 1.3 hereto in order to facilitate the completion of the Post-Closing Audit by NII's Accountant within the aforementioned time period. In the event that NII's Accountant determines that the actual tangible net worth of the Company as of June 30, 1998 was less than the Certified Closing Net Worth or that the actual net income for the twelve months ended June 30, 1998 was less than $2,430,000 (the "Earnings Threshold"), NII shall deliver a written notice ("Financial Adjustment Notice") to the Shareholder setting forth (i) the determination made by NII's Accountant of the actual tangible net worth of the Company as of June 30, 1998 (the "Actual Company Net Worth") and the actual net income for the twelve months ende...
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. After the Closing:
(i) if the Final Net Purchase Price is greater than the Estimated Net Purchase Price (such increase, the “Post-Closing Adjustment Increase”), then, within five (5) Business Days following the determination of the Final Net Purchase Price in accordance with Section 2.04, Purchaser shall pay, or cause to be paid, to Encore by wire transfer of immediately available funds, an amount equal to the Post-Closing Adjustment Increase. The Seller Representative and Purchaser shall also deliver a joint written instruction to the Escrow Agent instructing the Escrow Agent within three (3) Business Days following the determination of the Final Net Purchase Price in accordance with Section 2.04, to release the entire Adjustment Escrow Amount to Encore, by wire transfer of immediately available funds, to the account designated in writing by the Seller Representative to the Escrow Agent.
(ii) if the Estimated Net Purchase Price is greater than the Final Net Purchase Price (such decrease, the “Post-Closing Adjustment Decrease”), then, within five (5) Business Days following the determination of the Final Net Purchase Price in accordance with Section 2.04, Purchaser and the Seller Representative shall deliver a joint written instruction to the Escrow Agent to release (A) an amount of cash equal to the Post-Closing Adjustment Decrease from the Adjustment Escrow Account to Purchaser, by wire transfer of immediately available funds, to the account designated in writing by Purchaser to the Escrow Agent and (B) the remaining amount of cash in the Adjustment Escrow Account, if any, to Encore, by wire transfer of immediately available funds, to the account designated in writing by the Seller Representative to the Escrow Agent. If the Post-Closing Adjustment Decrease exceeds the Adjustment Escrow Amount, then, within five (5) Business Days following the determination of the Final Net Purchase Price in accordance with Section 2.04, the Seller Representative shall pay (on behalf of Sellers) by wire transfer of immediately available funds, to an account designated in writing by Purchaser, the amount by which the Post-Closing Adjustment Decrease exceeded the Adjustment Escrow Amount, to Purchaser.
Post-Closing Adjustment. (a) Within sixty (60) calendar days following the Closing Date, PLC shall deliver to Purchaser a schedule (the “Post Closing Equity Schedule”) setting forth the actual Adjusted Equity of the Companies as of the Closing Date without estimation, in substantially the form of the March Adjusted Equity Schedule and the Closing Date Equity Schedule, but also including a computation of the Stock Price and the Adjustment Amount. The Post Closing Equity Schedule will be accompanied by a certificate signed by the Chief Accounting Officer of PLC, certifying that to his knowledge the Post Closing Equity Schedule is: (i) correct and does not contain errors in calculation, methodology or application; (ii) is based on the books and records of the Companies; (iii) is prepared in accordance with Modified GAAP using accounting and actuarial principles, practices and methodologies consistent with the applicable Company’s December 31, 2000 GAAP balance sheet; and (iv) is prepared consistent with the terms of this Agreement, including the adjustments provided for herein. Purchaser shall be provided with reasonable access to the work papers (including those of PLC’s independent accounting firm if applicable), books, records, data, information and personnel of PLC and its subsidiaries supporting the Post Closing Equity Schedule. After the Closing, Purchaser shall provide PLC with reasonable access to the books, records, data and information (in whatever form maintained) in the possession or under the control of Purchaser, its Affiliates or its agents relating to the Business and reasonable access to Purchaser’s and its Affiliates’ personnel (including Transferred Employees) to the extent reasonably necessary for PLC to prepare the Post Closing Equity Schedule.
(b) Purchaser shall have sixty (60) calendar days in which to review the Post Closing Equity Schedule and to the extent that Purchaser has any objections thereto, then within sixty (60) calendar days from the date of receipt by Purchaser of the Post Closing Equity Schedule, Purchaser shall provide written notice thereof to PLC stating any such objection and the basis for such objection. If Purchaser does not timely deliver a notice of objection to PLC, (i) if the Stock Price shown on the Post Closing Equity Schedule is less than the Estimated Stock Price, then Sellers shall pay the amount of such difference to Purchaser in cash by wire transfer of immediately available funds within ten (10) calendar days after the lapse of...
Post-Closing Adjustment. (i) Within 90 calendar days after the Closing Date, Buyer shall prepare and deliver to Seller a statement setting forth its calculation of Closing Working Capital prepared in accordance with the Working Capital Schedule, which statement shall contain an unaudited consolidated balance sheet of the Acquired Companies as of the Closing Date (without giving effect to the transactions contemplated herein, except as specifically contemplated hereby) (the “Closing Working Capital Statement”) and a certificate of the Chief Financial Officer of Buyer that the Closing Working Capital Statement was prepared in accordance with GAAP to apply 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 Closing Financial Statements for the most recent fiscal year end as if such Closing Working Capital Statement was being prepared as of a fiscal year end.
(ii) The post-closing adjustment shall be an amount equal to the Closing Working Capital minus the Estimated Closing Working Capital (the “Post-Closing Adjustment”). If the Post-Closing Adjustment amount is a positive number, such amount will be paid by Buyer to Seller and if the Post-Closing Adjustment Amount is a negative number, the absolute value of such amount will be paid by Seller to Buyer, in each case in accordance with Section 2.04(d).