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 such submission. The Independent Actuary shall decide all matters relating to the procedures to be followed for resolution of the dispute, including those relating to the submission and receipt of information and documents; provided, however, that at the request of either Aspen or the Reinsurer, a meeting shall be held at which the Parties may present their views, that both Aspen and the Reinsurer shall have equal access to the Independent Actuary, and that all information and documents which either Party delivers or makes available to the Independent Actuary shall be furnished to the other Party as well. The review by the Independent Actuary shall be limited solely to the disputed items (and any items affected thereby) and amounts in the True-Up Dispute Notice that remain unresolved. Any determination by the Independent Actuary shall not be outside the range defined by the respective amounts in the Final Closing Statement and the True-Up Dispute Notice, and such determination shall be final and binding upon, and non-appealable by, the Parties and their respective successors and assigns for all purposes of this Agreement, and not subject to collateral attack for any reason absent manifest error or fraud. The fees and expenses of the Independent Actuary arising from such arbitration shall be paid by the Parties pro rata based on where the Independent Actuary’s determination of the New Reinsurance Premium falls in comparison to the amount claimed by ▇▇▇▇▇ in the Final Closing Statement and the amount claimed by the Reinsurer in the True-Up Dispute Notice. (d) If the New Reinsurance Premium as finally determined pursuant to this Section 3.3 is (i) greater than the Estimated New Reinsurance Premium (such difference, a “Positive Adjustment Amount”), then Aspen shall pay to the Reinsurer (or to the applicable Trust Accounts, to the extent that the Reinsurer’s Posted Collateral is less than the Initial Required Collateral Amount), by wire transfer of immediately available funds to one or more accounts designated in writing by the Reinsurer, the Positive Adjustment Amount within five (5) Business Days following final determination of the New Reinsurance Premium pursuant to this Section 3.3 or (ii) less than the Estimated New Reinsurance Premium (the absolute value of such difference, a “Negative Adjustment Amount”), then Aspen shall reduce the Funds Withheld Account Balance by the Negative Adjustment Amount.
Appears in 4 contracts
Sources: Reinsurance Agreement (Aspen Insurance Holdings LTD), Reinsurance Agreement (Aspen Insurance Holdings LTD), Reinsurance Agreement (Aspen Insurance Holdings LTD)
Post-Closing Adjustment. (a) No later than forty-five (45) 60 days following after the Closing Date, Aspen CCE shall prepare and deliver to ETP (i) a balance sheet of TPC as of the Reinsurer a detailed statement in close of business on the same form as date immediately prior to the Closing Statement Date (the “Final Closing StatementBalance Sheet”) 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) a calculation of the Initial Required Collateral “Post-Closing Adjustment Amount,” which shall mean the amount equal to (w) 50% of the difference obtained by subtracting (A) the sum of the Base Pro Forma Net Working Capital Amount, in each case, the Total Debt as of the Closing Date, and the June 30 TPC Expansion Project Expenses from (B) the sum of the Net Working Capital Amount as of the Closing Date, as reflected on the Closing Balance Sheet, the Base Debt Amount, and the TPC Expansion Project Expenses, calculated as of the Closing Date, minus (x) 50% of the difference obtained by subtracting the TPC Cash Flow Amount from the CCE Cash Flow Amount plus (y) the SUG Expansion Project Expenses as of the Closing Date minus (z) the Estimated SUG Expansion Project Expenses, which calculation may result in an amount that is positive or negative (together with all accounting, actuarial reasonable back-up information providing the basis for such balance sheet and other data calculations). In order for CCE to prepare the Closing Balance Sheet and documentation reasonably necessary for calculate the Reinsurer Post-Closing Adjustment Amount, ETP will provide to review ▇▇▇▇▇CCE and CCE’s proposed final calculations accountants prompt and full access to the personnel, accountants and books and records of TPC (and shall provide copies of the applicable portions of such amounts.
(b) Upon receipt of books and records as may be reasonably requested), to the Final Closing Statement, the Reinsurer and its authorized Representatives will be given reasonable access to all accounting, actuarial and other data and documentation extent reasonably related to the preparation of the Final Closing Statement Balance Sheet and the calculation of the Post-Closing Adjustment Amount (and the elements of such calculation). In order for ETP to review the purpose ofClosing Balance Sheet and the calculation of the Post-Closing Adjustment Amount, CCE will provide to ETP and ETP’s accountants prompt and full access to the personnel, accountants and books and records of CCE and its Subsidiaries used by CCE (and shall provide copies of the applicable portions of such books and records as may be reasonably requested), to the extent reasonably necessary for, verifying related to the Final preparation of the Closing Statement; provided, that no independent accountants or independent actuaries Balance Sheet and the calculation of Aspen the Post-Closing Adjustment Amount (and the elements of such calculation). The Closing Balance Sheet and the calculation of the Post-Closing Adjustment Amount relating to TPC shall be required to make any work papers available to prepared in a manner consistent with 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 preparation of the Reinsurer’s receipt Pro Forma Adjusted Balance Sheet (subject to, in the case of the Final Closing StatementBalance Sheet, 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 such submission. The Independent Actuary shall decide all matters exceptions from GAAP relating to the procedures to be followed for resolution of adjustments reflected on the dispute, including those relating to the submission and receipt of information and documents; provided, however, that at the request of either Aspen or the Reinsurer, a meeting shall be held at which the Parties may present their views, that both Aspen and the Reinsurer shall have equal access to the Independent Actuary, and that all information and documents which either Party delivers or makes available to the Independent Actuary shall be furnished to the other Party as well. The review by the Independent Actuary shall be limited solely to the disputed items (and any items affected thereby) and amounts in the True-Up Dispute Notice that remain unresolved. Any determination by the Independent Actuary shall not be outside the range defined by the respective amounts in the Final Closing Statement and the True-Up Dispute Notice, and such determination shall be final and binding upon, and non-appealable by, the Parties and their respective successors and assigns for all purposes of this Agreement, and not subject to collateral attack for any reason absent manifest error or fraud. The fees and expenses of the Independent Actuary arising from such arbitration shall be paid by the Parties pro rata based on where the Independent Actuary’s determination of the New Reinsurance Premium falls in comparison to the amount claimed by ▇▇▇▇▇ in the Final Closing Statement and the amount claimed by the Reinsurer in the True-Up Dispute NoticePro Forma Adjusted Balance Sheet).
(d) If the New Reinsurance Premium as finally determined pursuant to this Section 3.3 is (i) greater than the Estimated New Reinsurance Premium (such difference, a “Positive Adjustment Amount”), then Aspen shall pay to the Reinsurer (or to the applicable Trust Accounts, to the extent that the Reinsurer’s Posted Collateral is less than the Initial Required Collateral Amount), by wire transfer of immediately available funds to one or more accounts designated in writing by the Reinsurer, the Positive Adjustment Amount within five (5) Business Days following final determination of the New Reinsurance Premium pursuant to this Section 3.3 or (ii) less than the Estimated New Reinsurance Premium (the absolute value of such difference, a “Negative Adjustment Amount”), then Aspen shall reduce the Funds Withheld Account Balance by the Negative Adjustment Amount.
Appears in 3 contracts
Sources: Redemption Agreement (Southern Union Co), Redemption Agreement (Energy Transfer Equity, L.P.), Redemption Agreement (Energy Transfer Equity, L.P.)
Post-Closing Adjustment. (a) No later than forty-five Within ninety (4590) days following the Closing Distribution Date, Aspen Spinco shall deliver cause to the Reinsurer be prepared and delivered to Harbor a detailed certificate endorsed by an executive officer of Spinco certifying a statement in the same form as the Closing Statement (the “Final Spinco Preliminary Closing Statement”) setting forth AspenSpinco’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) Spinco Working Capital Adjustment and (ii) the Initial Required Collateral AmountSpinco Net Debt Adjustment, including reasonable detail regarding the calculations thereof. The Spinco Preliminary Closing Statement shall be prepared in each case, as of accordance with 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 amountsApplicable Accounting Principles.
(b) Upon During the forty-five (45) day period following Harbor’s receipt of the Final Spinco Preliminary Closing Statement, the Reinsurer Spinco shall give Harbor, and each of its authorized Representatives will be given access at all reasonable access to all accounting, actuarial times and other data and documentation related on reasonable advance notice to the preparation books, records, properties, working papers and personnel of the Final Closing Statement for the purpose of, Spinco (including senior finance and accounting personnel and their accountants) to the extent reasonably necessary for, verifying required to permit Harbor to evaluate the Final Spinco Preliminary 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 after receipt of the Final Spinco Preliminary Closing Statement, the Reinsurer may deliver Harbor may, in a written notice (the “True-Up Dispute Notice”) to Aspen of any objectionsSpinco, specifying describe in reasonable detail any contested amounts proposed adjustments to the items set forth on the Spinco Preliminary Closing Statement and the basis thereforreasons therefor (it being agreed that the only permitted reasons for such adjustments shall be mathematical error or the failure to compute items set forth therein in accordance with this Agreement). If Spinco shall not have received a notice of proposed adjustments within such forty-five (45)-day period, 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 Harbor 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 have accepted by irrevocably the Reinsurer as final, except to the extent that such amounts are affected by any disputed amountsSpinco Preliminary Closing Statement.
(c) If Aspen Harbor and the Reinsurer are unable Spinco shall negotiate in good faith to resolve all disagreements with respect any disputes over any proposed adjustments to the Final Spinco Preliminary Closing Statement within Statement, during the thirty (30) days following ▇▇▇▇▇Spinco’s receipt of a True-Up Dispute Notice the proposed adjustments. If Harbor and Spinco are unable to resolve such dispute within such thirty (30)-day period, then, at the written request of either such Party (the “True-up Dispute Cooling-Off PeriodResolution Request”), each such Party shall appoint a knowledgeable, responsible representative to meet in person and negotiate in good faith to resolve the items and amounts in dispute shall be submitted for review to the Independent Actuary for final determination within forty-five (45) days after such submissiondisputed matters. The Independent Actuary Parties intend that these negotiations be conducted by experienced business representatives empowered to decide the issues. Such negotiations shall decide all matters relating to take place during the procedures to be followed for resolution thirty (30)-day period following the date of the Dispute Resolution Request. If the business representatives resolve the dispute, including those relating such resolution shall be memorialized in a written agreement (the Spinco Preliminary Closing Statement, as agreed to pursuant to the last sentence of Section 5.1(b) or as revised by such negotiations, written agreement or the final decision of the accounting firm referred to below, the “Spinco Final Closing Statement”). If the business representatives do not resolve the dispute during the periods described above, then Spinco, the Voyager Stockholders’ Representative and Harbor shall jointly engage KPMG LLP to arbitrate and resolve such disputes, which resolution shall be final, binding and enforceable in accordance with Section 10.15. If KPMG LLP is unable or unwilling to act as arbitrator, a nationally recognized accounting firm shall be selected by lot from the remaining nationally recognized accounting firms that are not the regular independent auditor firm of Harbor, Spinco or Voyager, and in such event references herein to “KPMG LLP” shall be deemed to refer to such replacement accounting firm. Within the thirty (30)-day period following its engagement, KPMG LLP shall arbitrate and resolve such dispute based solely on the written submission provided by Harbor and receipt Spinco and shall only consider whether the Spinco Preliminary Closing Statement (and each component thereof) was prepared in accordance with this Agreement and (only with respect to disputed matters submitted to the accounting firm) whether and to what extent the Spinco Preliminary Closing Statement requires adjustment. In resolving any disputed matter, KPMG LLP shall (i) adhere to the definitions contained in this Agreement and the guidelines and principles of information this Section 5.1 and documents(ii) not assign a value to any item higher than the highest value for such item claimed by either of Harbor or Spinco or lower than the lowest value claimed by either such Person; provided, however, that at to the request extent the determination of either Aspen value of any disputed item affects any other item used in calculating the Spinco Working Capital Adjustment or the ReinsurerSpinco Net Debt Adjustment, a meeting shall such effect may be held at which the Parties may present their views, that both Aspen and the Reinsurer shall have equal access to the Independent Actuary, and that all information and documents which either Party delivers or makes available to the Independent Actuary shall be furnished to the other Party as well. The review taken into account by the Independent Actuary shall be limited solely to the disputed items (and any items affected thereby) and amounts in the True-Up Dispute Notice that remain unresolved. Any determination by the Independent Actuary shall not be outside the range defined by the respective amounts in the Final Closing Statement and the True-Up Dispute Notice, and such determination shall be final and binding upon, and non-appealable by, the Parties and their respective successors and assigns for all purposes of this Agreement, and not subject to collateral attack for any reason absent manifest error or fraudKPMG LLP. The fees and expenses of the Independent Actuary arising from such arbitration KPMG LLP shall be paid shared by Spinco and Harbor in inverse proportion to the Parties pro rata based on where the Independent Actuary’s determination relative amounts of the New Reinsurance Premium falls disputed amount determined in comparison to the amount claimed by ▇▇▇▇▇ in the Final Closing Statement favor of Spinco and the amount claimed by the Reinsurer in the True-Up Dispute NoticeHarbor, respectively.
(d) If Upon final determination of the New Reinsurance Premium as finally determined Spinco Final Closing Statement pursuant to this Section 3.3 is 5.1, the following payments (if any) shall be made in accordance with Section 5.1(e):
(i) greater than If the Estimated New Reinsurance Premium (such differenceAdjustment Amount is positive, a “Positive Adjustment Amount”), then Aspen Spinco shall pay to Harbor the Reinsurer lesser of (A) $150,000,000 (less all amounts paid or payable pursuant to Section 3.01 of the Tax Matters Agreement in respect of Harbor Pre-Closing Taxes) and (B) the Adjustment Amount; and
(ii) If Adjustment Amount is negative, Harbor shall pay to Spinco the lesser of (A) $150,000,000 (less all amounts paid or payable pursuant to Section 3.01 of the Tax Matters Agreement in respect of Harbor Pre-Closing Taxes) and (b) the absolute value of the Adjustment Amount; and
(iii) If the Adjustment Amount is zero, no payment by any Party shall be due. Notwithstanding anything herein to the applicable Trust Accountscontrary, no adjustment under this Section 5.1 shall be made to the extent that the Reinsurer’s Posted Collateral is effect of such adjustment would reasonably be expected to result in Harbor Stockholders owning fifty percent (50%) or less than of the Initial Required Collateral Amount), by shares of Spinco Common Stock on or after the Effective Time or otherwise result in a Tax Free Transaction Failure.
(e) Any amount payable pursuant to Section 5.1(d) shall be made via wire transfer of immediately available funds to one or more accounts designated in writing by the Reinsurer, the Positive Adjustment Amount within five (5) Business Days following final determination of after the New Reinsurance Premium date upon which the Spinco Preliminary Closing Statement becomes a Spinco Final Closing Statement. Any payment (or portion thereof) pursuant to this Section 3.3 or 5.1(d) shall be treated as an adjustment to the Special Dividend and/or the Additional Special Dividend (iiif applicable) less than for Tax purposes, to the Estimated New Reinsurance Premium (the absolute value of such difference, a “Negative Adjustment Amount”), then Aspen shall reduce the Funds Withheld Account Balance extent permitted by the Negative Adjustment Amountapplicable Law.
Appears in 3 contracts
Sources: Contribution and Distribution Agreement (HS Spinco, Inc.), Contribution and Distribution Agreement (HS Spinco, Inc.), Contribution and Distribution Agreement (Henry Schein Inc)
Post-Closing Adjustment. (a) No As promptly as practicable after the Closing (but in no event later than forty-five sixty (4560) days Business Days following the Closing Date), Aspen the Purchaser shall deliver cause to be prepared and delivered to the Reinsurer a detailed statement Parent the balance sheet of each of the Sellers under the Acquisition Agreements as of the close of business on the Closing Date including only those items in the same form definition of Net Working Capital, prepared in accordance with GAAP consistently applied (except as the Closing Statement definition of Net Working Capital varies from GAAP, in which case the definition of Net Working Capital shall control) (the “Final Closing StatementDate Balance Sheet”), and a calculation based on the Closing Date Balance Sheet of the Closing Date Net Working Capital and the Adjustment Amount (the “Adjustment Amount Calculation”), specifying in reasonable detail such calculations.
(i) Within thirty (30) Business Days after delivery to the Parent of the Closing Date Balance Sheet and the Adjustment Amount Calculation, the Parent shall have the right to furnish to the Purchaser a statement (the “Objection Notice”) setting forth Aspen’s good faith calculation in reasonable detail any objections it has to the Adjustment Amount Calculation. The Parent may object to the Adjustment Amount Calculation solely on the basis of computational errors or that it was not prepared in accordance with GAAP, as modified by the definition of Net Working Capital. If no Objection Notice is received by the Purchaser within such thirty (i30) Business Day period or if the New Reinsurance Premium (including Parent notifies the New Reinsurance Premium Accrued InterestPurchaser in writing that the Adjustment Amount Calculation is acceptable, then the Roll-forward Adjustment Amount Calculation shall be deemed to have been accepted by the Parent and shall become final and binding upon the ULAE Reimbursement Amount) and parties hereto.
(ii) If within twenty (20) Business Days after the Initial Required Collateral Amount, in each case, as delivery of the Closing DateObjection Notice, together the Purchaser and the Parent are unable to agree to an Adjustment Amount and Adjustment Amount Calculation, they shall engage the Chicago, Illinois office of KPMG LLP or, if it is unable or unwilling to serve, another nationally recognized accounting firm mutually acceptable to the Purchaser and the Parent (the “Independent Firm”) to resolve any disputes regarding the Adjustment Amount or the Adjustment Amount Calculation. The Purchaser and the Parent will direct the Independent Firm to render a written determination within twenty (20) Business Days of its retention, and the Purchaser and the Parent and their respective agents will cooperate with all accounting, actuarial the Independent Firm during its engagement. The Independent Firm will consider only those issues related to the Adjustment Amount or Adjustment Amount Calculation that the Purchaser and other data the Parent have been unable to resolve. The determination of the chosen Independent Firm will be conclusive and documentation reasonably necessary for shall become final and binding upon the Reinsurer to review ▇▇▇▇▇’s proposed final calculations parties hereto and any amounts owing as a result thereof shall be paid in accordance with subparagraph (b) below. The Parent and the Purchaser shall each pay one half of the fees and expenses of such amountsIndependent Firm.
(b) Upon receipt of If the Final Closing StatementAdjustment Amount is a positive number, 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 such submission. The Independent Actuary shall decide all matters relating to the procedures to be followed for resolution of the dispute, including those relating to the submission and receipt of information and documents; provided, however, that at the request of either Aspen or the Reinsurer, a meeting shall be held at which the Parties may present their views, that both Aspen and the Reinsurer shall have equal access to the Independent Actuary, and that all information and documents which either Party delivers or makes available to the Independent Actuary shall be furnished to the other Party as well. The review by the Independent Actuary shall be limited solely to the disputed items (and any items affected thereby) and amounts in the True-Up Dispute Notice that remain unresolved. Any determination by the Independent Actuary shall not be outside the range defined by the respective amounts in the Final Closing Statement and the True-Up Dispute Notice, and such determination shall be final and binding upon, and non-appealable by, the Parties and their respective successors and assigns for all purposes of this Agreement, and not subject to collateral attack for any reason absent manifest error or fraud. The fees and expenses of the Independent Actuary arising from such arbitration shall be paid by the Parties pro rata based on where the Independent Actuary’s determination of the New Reinsurance Premium falls in comparison to the amount claimed by ▇▇▇▇▇ in the Final Closing Statement and the amount claimed by the Reinsurer in the True-Up Dispute Notice.
(d) If the New Reinsurance Premium as finally determined pursuant to this Section 3.3 is (i) greater than the Estimated New Reinsurance Premium (such difference, a “Positive Adjustment Amount”), then Aspen Purchaser shall pay to the Reinsurer (or to the applicable Trust Accounts, to the extent that the Reinsurer’s Posted Collateral is less than the Initial Required Collateral Amount), by wire transfer of immediately available funds to one or more accounts a bank account designated in writing by the Reinsurer, Parent to the Positive Adjustment Amount Parent (or to such Seller as the Parent shall direct in writing) within five (5) Business Days following of the final determination of the New Reinsurance Premium pursuant Adjustment Amount in accordance with subparagraph (a) above the Adjustment Amount with simple interest from the Closing Date through the date of payment at the Applicable Interest Rate. If the Adjustment Amount is a negative number, the Parent shall pay or cause to this Section 3.3 or (ii) less than the Estimated New Reinsurance Premium (the absolute value be paid by wire transfer of such difference, immediately available funds to a “Negative Adjustment Amount”), then Aspen shall reduce the Funds Withheld Account Balance bank account designated by the Negative Purchaser to the Purchaser within five (5) Business Days of the final determination of the Adjustment AmountAmount in accordance with subparagraph (a) above the Adjustment Amount with simple interest from the Closing Date through the date of payment at the Applicable Interest Rate.
Appears in 3 contracts
Sources: Asset Purchase Agreement (Infrasource Services Inc), Asset Purchase Agreement (Infrasource Services Inc), Asset Purchase Agreement (Infrasource Services Inc)
Post-Closing Adjustment. (a) No later than forty-five Purchaser shall propose any changes to the Estimated Commercialization Agreement Payment Value set forth in the Preliminary Commercialization Agreement Payment Schedule by delivering to Seller a final statement (45the “Final Commercialization Agreement Payment Statement”) setting forth Purchaser’s proposed good faith calculations of the Final Commercialization Agreement Payment Value and describing such proposed changes within thirty (30) days following the Closing Date, Aspen in each case including the components thereof and determined in a manner consistent with the definitions thereof and together with reasonable supporting back-up documentation. Seller shall deliver propose any changes to the Reinsurer a detailed statement Estimated Inventories Value set forth in the same form as the Closing Preliminary Inventories Statement by delivering to Purchaser a final statement (the “Final Closing Inventories Statement”) setting forth AspenSeller’s proposed good faith calculations of the Final Inventories Value and describing such proposed changes within ten (10) days following the receipt of the Final Commercialization Agreement Payment Statement (the “Adjustment Deadline”), in each case including the components thereof and determined in a manner consistent with the definitions thereof and together with reasonable supporting back-up documentation. The Final Inventories Statement shall set forth Seller’s proposed good faith calculations of the Purchase Price, based on the Final Inventories Value set forth in the Final Inventories Statement and the Final Commercialization Agreement Payment Value set forth in the Final Commercialization Agreement Payment Statement. The Final Inventories Statement shall also set forth Seller’s proposed calculation of (i) the New Reinsurance Premium (including amount by which the New Reinsurance Premium Accrued InterestPurchase Price exceeds, or is less than, the Roll-forward Amount Estimated Purchase Price (such amount, as finally determined in accordance with this Section 2.07, the “Final Adjustment Amount”).
(b) The Parties shall be entitled to dispute the proposed adjustments to the Estimated Inventories Value and the ULAE Reimbursement Amount) Estimated Commercialization Agreement Payment Value, and (ii) the Initial Required Collateral calculation of the Final Adjustment Amount, in each case, as of set forth in the Closing Date, together with all accounting, actuarial and other data and documentation reasonably necessary for the Reinsurer to review ▇▇▇▇▇’s proposed final calculations Final Inventories Statement if either Party delivers a written notice 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 dispute (the “True-Up Dispute Notice”) to Aspen the other Party within thirty (30) days after Purchaser’s timely receipt of the Final Inventories Statement. The Dispute Notice shall describe the nature of any objections, specifying disagreement in reasonable detail any contested amounts and identify the specific line items involved and the basis therefor, which the Reinsurer may have to the Final Closing Statementdollar amount of each such disagreement. The failure of the Reinsurer to If either Party does not deliver such True-Up a Dispute Notice within the prescribed time period will constitute specified in this Section 2.07(b), 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) Parties shall be deemed to have accepted and agreed with the Final Inventories Statement, Seller’s calculation of the Final Adjustment Amount and the Purchase Price shall be accepted by the Reinsurer as final, except binding and conclusive on the Parties and the payment provided for in Section 2.08 shall be based on such amount. For the avoidance of doubt, any items on the Final Inventories Statement as to which either Party has not provided a reasonably detailed objection and provided an alternative calculation in the extent that such amounts are affected by any disputed amountsDispute Notice delivered within the time period specified in this Section 2.07(b) shall be final, binding and conclusive on the Parties.
(c) If Aspen a Dispute Notice is delivered within the time period specified in Section 2.07(b), Purchaser and the Reinsurer are unable Seller shall attempt in good faith to resolve all disagreements with respect to any disputes set forth in the Final Closing Statement within Dispute Notice during the thirty (30) days following ▇▇▇▇▇’s day period commencing on the date of receipt of a True-Up such Dispute Notice (or such longer period as may be agreed between the Parties) (the “True-up Dispute Cooling-Off Negotiation 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 such submission. The Independent Actuary shall decide all matters relating to the procedures to be followed for resolution of the dispute, including those relating to the submission and receipt of information and documents; provided, however, that at the request of either Aspen or the Reinsurer, a meeting shall be held at which the Parties may present their views, that both Aspen and the Reinsurer shall have equal access to the Independent Actuary, and that all information and documents which either Party delivers or makes available to the Independent Actuary shall be furnished to the other Party as well. The review by the Independent Actuary shall be limited solely to the disputed items (and any items affected thereby) and amounts in the True-Up Dispute Notice that remain unresolved. Any determination by the Independent Actuary shall not be outside the range defined by the respective amounts in the Final Closing Statement and the True-Up Dispute Notice, and such determination shall be final and binding upon, and non-appealable by, the Parties and their respective successors and assigns for all purposes of this Agreement, and not subject to collateral attack for any reason absent manifest error or fraud. The fees and expenses of the Independent Actuary arising from such arbitration shall be paid by the Parties pro rata based on where the Independent Actuary’s determination of the New Reinsurance Premium falls in comparison to the amount claimed by ▇▇▇▇▇ in the Final Closing Statement and the amount claimed by the Reinsurer in the True-Up Dispute Notice.
(d) If Purchaser and Seller agree in writing prior to the New Reinsurance Premium expiration of the Negotiation Period on the calculation of the Final Inventories Value, the Final Commercialization Agreement Payment Value (or one or more components thereof), and the resulting Final Adjustment Amount (whether such amount is the same as finally determined pursuant or different from the amount calculated based upon the Final Inventories Statement), the payment provided for in Section 2.08 shall be based upon such agreed upon amount.
(e) If Purchaser and Seller do not agree in writing prior to the expiration of the Negotiation Period on the Final Adjustment Amount, then Purchaser and Seller shall engage, and the remaining items in dispute that remain unresolved following the Negotiation Period (but no other matters) (the “Disputed Items”) shall be submitted immediately to, a nationally recognized independent accounting firm to be mutually agreed upon by Seller and Purchaser (the “Independent Accountant”), acting as an expert and not as an arbitrator. The Independent Accountant shall consider only the Disputed Items. The Independent Accountant shall make a final determination as to each such Disputed Item, and the resulting amount of the Purchase Price and the Final Adjustment Amount in accordance with the guidelines and procedures set forth in this Section 3.3 is Agreement. The determination of value made by the Independent Accountant with respect to the applicable Disputed Items submitted to the Independent Accountant (i) shall not be greater than the Estimated New Reinsurance Premium (greatest value for such difference, a “Positive Adjustment Amount”), then Aspen shall pay to the Reinsurer (items claimed by Purchaser or to the applicable Trust Accounts, to the extent that the Reinsurer’s Posted Collateral is Seller or less than the Initial Required Collateral Amountsmallest value for such items claimed by Purchaser or Seller in the Final Inventories Statement or the Dispute Notice, as applicable and (ii) shall be based solely upon the written submissions of Purchaser and Seller and the terms of this Agreement, including the definitions set forth herein (and not upon an independent review), by wire transfer of immediately available funds to one or more accounts designated in writing by the Reinsurer, the Positive Adjustment Amount within five (5) Business Days following final . The determination of the New Reinsurance Premium Disputed Items submitted to the Independent Accountant, and the calculation of the Final Inventories Value and Final Commercialization Agreement Payment Value based on such determination and, if applicable, any amounts finally agreed upon between the Parties pursuant to this Section 3.3 or (ii2.07(b) less than the Estimated New Reinsurance Premium (the absolute value of such difference, a “Negative Adjustment Amount”and Section 2.07(d), then Aspen together with a calculation of the Purchase Price and the Final Adjustment Amount that results from such determination, shall reduce become final and binding on the Funds Withheld Account Balance Parties on the date the Independent Accountant delivers its final resolution to the Parties of the Disputed Items submitted to the Independent Accountant, absent fraud or manifest error. The terms of appointment and engagement of the Independent Accountant shall be as agreed upon between Purchaser and Seller, and any associated engagement fees shall be borne based on the inverse of the percentage that the Independent Accountant’s determination bears to the total amount of the total items in dispute as originally submitted to the Independent Accountant, which proportionate allocations shall also be determined by the Negative Adjustment AmountIndependent Accountant at the time it renders its determination on the merits of the matters in dispute. For example, should the items in dispute total in amount to $1,000 and the Independent Accountant awards $600 in favor of Seller, then 60% of the costs of its review would be borne by Purchaser and 40% of the costs would be borne by Seller.
Appears in 3 contracts
Sources: Asset Purchase Agreement (Assertio Therapeutics, Inc), Asset Purchase Agreement (Collegium Pharmaceutical, Inc), Asset Purchase Agreement (Assertio Therapeutics, Inc)
Post-Closing Adjustment. (ai) No later than forty-five Within sixty (4560) days following the Closing Date, Aspen Seller shall prepare and deliver to the Reinsurer Buyer a detailed statement in the same form as the Closing Statement (the “Final Closing Statement”) setting that shall set forth Aspenin reasonable detail Seller’s good faith calculation of the net amount of all adjustments to the Base Purchase Price required by Section 2.6(a) taking into account actual data (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“Purchase Price Adjustment”), together with all accounting, actuarial and other data and documentation reasonably necessary for reasonable supporting material regarding 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 computation thereof. Buyer 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 to review the Closing Statement following ▇▇▇▇▇’s receipt thereof. On or before the end of a Truesuch 30-Up Dispute Notice day review period, Buyer may object to the Closing Statement by written notice to Seller (the “True-up Dispute Cooling-Off PeriodObjection Notice”), setting forth Buyer’s specific objections to the calculation of the Purchase Price Adjustment. Such Objection Notice shall specify those items or amounts with which Buyer disagrees, together with a detailed written explanation of the reasons for disagreement with each such item or amount (and reasonable supporting material therefor), and shall set forth Buyer’s calculation of the Purchase Price Adjustment based on such objections. To the extent not set forth in a timely-delivered Objection Notice, Buyer shall be deemed to have agreed with Seller’s calculation of all other items and amounts in dispute shall be submitted for review to the Independent Actuary for final determination within forty-five (45) days after such submission. The Independent Actuary shall decide all matters relating to the procedures to be followed for resolution of the dispute, including those relating to the submission and receipt of information and documents; provided, however, that at the request of either Aspen or the Reinsurer, a meeting shall be held at which the Parties may present their views, that both Aspen and the Reinsurer shall have equal access to the Independent Actuary, and that all information and documents which either Party delivers or makes available to the Independent Actuary shall be furnished to the other Party as well. The review by the Independent Actuary shall be limited solely to the disputed items (and any items affected thereby) and amounts contained in the True-Up Dispute Notice that remain unresolved. Any determination by the Independent Actuary shall not be outside the range defined by the respective amounts in the Final Closing Statement and the True-Up Dispute neither party may thereafter dispute any item or amount not set forth in such Objection Notice. If Buyer does not timely deliver any Objection Notice, Buyer shall be deemed to have agreed with and such determination accepted Seller’s calculation of the Purchase Price Adjustment, and the Closing Statement shall be final and binding uponon the Parties as of the end of Buyer’s 30-day review period.
(ii) If Buyer timely delivers an Objection Notice to Seller, Buyer and non-appealable bySeller shall, during the thirty (30) day period following such delivery (or any mutually agreed extension thereof), use their commercially reasonable efforts to negotiate and reach agreement on the disputed items and amounts in order to determine the amount of the Purchase Price Adjustment. If, at the end of such period (or any mutually agreed extension thereof), the Parties are unable to resolve their disagreements, they shall jointly retain and refer their respective successors and assigns for all purposes of this Agreement, and not subject disagreements to collateral attack for any reason absent manifest error or fraudthe Independent Accountant. The fees Parties shall instruct the Independent Accountant to promptly review this Section 2.6 and to determine solely with respect to the disputed items and amounts so submitted whether and to what extent, if any, the Purchase Price Adjustment set forth in the Closing Statement requires adjustment. The Independent Accountant shall base its determination solely on written submissions by the Parties. As promptly as practicable, but in no event later than thirty (30) days after its retention, the Independent Accountant shall deliver to Buyer and Seller a report which sets forth its resolution of the disputed items and amounts and its calculation of the Purchase Price Adjustment; provided that the Independent Accountant may not assign a value to any item greater than the greatest value for such item claimed by either Party or less than the smallest value for such item claimed by either Party. The decision of the Independent Accountant shall be final and binding on the Parties. The costs and expenses of the Independent Actuary arising from such arbitration Accountant shall be paid by allocated between the Parties pro rata based on where upon the Independent Actuary’s determination percentage which the portion of the New Reinsurance Premium falls in comparison contested amount not awarded to each party bears to the amount claimed actually contested by ▇▇▇▇▇ in the Final Closing Statement and the amount claimed such party, as determined by the Reinsurer in Independent Accountant. The Parties agree to execute, if requested by the True-Up Dispute Notice.
(d) If the New Reinsurance Premium as finally determined pursuant to this Section 3.3 is (i) greater than the Estimated New Reinsurance Premium (such differenceIndependent Accountant, a “Positive Adjustment Amount”)reasonable engagement letter, then Aspen including customary indemnities in favor of the Independent Accountant. The Parties shall pay to the Reinsurer (or to the applicable Trust Accountscooperate and shall furnish each other and, to the extent that the Reinsurer’s Posted Collateral is less than the Initial Required Collateral Amount), by wire transfer of immediately available funds to one or more accounts designated in writing by the Reinsurerif applicable, the Positive Adjustment Amount within five (5) Business Days following Independent Accountant, with such documents and other records that may be reasonably requested in connection with the preparation, review and final determination of the New Reinsurance Premium pursuant to Closing Statement and Purchase Price Adjustment and the other matters addressed in this Section 3.3 or 2.6.
(iiiii) less than the Estimated New Reinsurance Premium (the absolute value For purposes of such difference, a “Negative Adjustment Amount”this Section 2.6(c), then Aspen shall reduce “Final Purchase Price Adjustment” means the Funds Withheld Account Balance by the Negative Adjustment Amount.Purchase Price Adjustment:
Appears in 3 contracts
Sources: Purchase and Sale Agreement (Public Service Co of New Hampshire), Purchase and Sale Agreement, Purchase and Sale Agreement
Post-Closing Adjustment. (a) No later than Within seventy-five (75) days following the Closing Date, Buyer, at its sole cost and expense, shall in good faith prepare and deliver to the Holder Representative a statement (“Buyer’s Closing Statement”) setting forth Buyer’s good faith calculations of (a) Final Working Capital, (b) Final Company Transaction Expenses, (c) Final Indebtedness and (d) the Excluded Payroll Accounts as of the Closing calculated in accordance with the Accounting Principles. The Holder Representative and its independent certified public accountants shall have forty-five (45) days following the Closing Date, Aspen shall deliver receipt to the Reinsurer a detailed statement in the same form as the review Buyer’s 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 make inquiry of the Closing Daterepresentatives of Buyer’s accountants, together with all accounting, actuarial subject to entry into customary non-disclosure 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 non-reliance agreements to the extent required by such accountants, and Buyer, who shall reasonably necessary for, verifying cooperate with the Final Holder Representative (including by providing the Holder Representative or its agents access to financial accounts and underlying source documents). The calculation regarding the foregoing items (a) through (d) contained in Buyer’s Closing Statement; provided, that no independent accountants or independent actuaries of Aspen Statement shall be required to make any work papers available to binding and conclusive upon, and deemed irrevocably accepted by, the Reinsurer Holder Representative unless the Reinsurer has signed Holder Representative shall have delivered to Buyer 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 a “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 such submissionreceipt of Buyer’s Closing Statement of any objections to the calculations set forth in Buyer’s Closing Statement. The Independent Actuary shall decide all matters relating to the procedures to be followed for resolution of the dispute, including those relating to the submission and receipt of information and documents; provided, however, that at the request of either Aspen or the Reinsurer, a meeting shall be held at which the Parties may present their views, that both Aspen and the Reinsurer shall have equal access to the Independent Actuary, and that all information and documents which either Party delivers or makes available to the Independent Actuary shall be furnished to the other Party as well. The review by the Independent Actuary shall be limited solely to the disputed items (and any items affected thereby) and amounts in the True-Up Dispute Notice that remain unresolved. Any determination by must set forth in reasonable detail the Independent Actuary shall not be outside the range defined by the respective amounts in the Final basis for any objections to Buyer’s Closing Statement and the TrueHolder Representative’s good faith calculation of the disputed amounts (such disputed amounts, the “Disputed Amounts”) in Buyer’s Closing Statement; provided that (i) such Disputed Amounts may only be based on mathematical errors or non-Up compliance with this Agreement (including the relevant definitions) and (ii) the Holder Representative shall be deemed to have agreed with all items and amounts included in the Buyer’s Closing Statement except the Disputed Amounts specifically disputed in a Dispute Notice.
(b) If a Dispute Notice shall be duly delivered pursuant to Section 2.8.2(a), the Holder Representative and Buyer shall, during the thirty (30) days following such determination delivery, attempt to reach agreement on the Disputed Amounts. Any such agreement shall be in writing and shall be final and binding upon, and non-appealable by, upon the Parties and the Sellers. If during such period, the Holder Representative and Purchaser are unable to reach such agreement, then all Disputed Amounts that cannot be resolved by them within thirty (30) days after receipt of a Dispute Notice pursuant to this Section 2.8.2(a) shall be referred to Ernst & Young LLP or another independent auditor mutually agreed by Buyer and the Holder Representative (the “Disputes Auditor”) for decision, which decision shall be final and binding (it being agreed and understood that the Disputes Auditor shall act as an arbitrator to determine such disputed items or amounts and shall do so based solely on presentations and information provided by Buyer and the Holder Representative and not by independent review). In conducting its review, the Disputes Auditor shall consider only the Disputed Amounts and shall not assign a value to any item greater than the maximum value for such item claimed by either party or less than the minimum value for such item claimed by either party. The scope of the disputes, if any, to be resolved by the Disputes Auditor shall be limited to fixing mathematical errors and determining whether the items in dispute were determined in accordance with this Agreement (including the relevant definitions) and the Disputes Auditor is not to make any other determination. The Parties agree that they will request that the Disputes Auditor render its decision within thirty (30) days after referral of the dispute to the Disputes Auditor for decision pursuant hereto. Each Party shall bear the fees and disbursements of their respective successors and assigns for all purposes representatives incurred in connection with their preparation or review of this Agreement, and not subject to collateral attack for any reason absent manifest error or fraudthe Disputed Amounts. The fees fees, costs and expenses of the Independent Actuary arising from such arbitration Disputes Auditor shall be paid borne by Buyer and the Parties pro rata based on where Holder Representative in proportion to the Independent Actuaryrelative amount each such party’s determination has been modified. For example, if the Holder Representative challenges the calculation of Final Working Capital and claims that the Final Working Capital should increase by $100,000, but the Disputes Auditor determines that the Final Working Capital should increase only by $60,000, the Holder Representative shall bear forty percent (40%) of the New Reinsurance Premium falls fees, costs and expenses of the Disputes Auditor and Buyer shall bear the other sixty percent (60%) of such fees and expenses. The date on which the Final Working Capital, the Final Company Transaction Expenses and Final Indebtedness are finally determined in comparison accordance with Section 2.8.2(a) and this Section 2.8.2(b) is hereinafter referred to as the amount claimed by ▇▇▇▇▇ “Final Determination Date.”
(c) If the Final Merger Consideration calculated in the same manner as the Initial Merger Consideration, but using Final Closing Statement Working Capital, Final Company Transaction Expenses, Final Indebtedness and Excluded Payroll Accounts, each as finally determined pursuant to Sections 2.8.2(a) and 2.8.2(b), exceeds the amount claimed by Initial Merger Consideration, then the Reinsurer Sellers shall be entitled to such excess (the “Excess Consideration”) in accordance with Section 2.8.2(d). If the Final Merger Consideration calculated in the True-Up Dispute Noticesame manner as the Initial Merger Consideration, but using Final Working Capital, Final Company Transaction Expenses, Final Indebtedness and Excluded Payroll Accounts, each as finally determined pursuant to Sections 2.8.2(a) and 2.8.2(b), is less than the Initial Merger Consideration, then Buyer shall be entitled to such shortfall (the “Shortfall Consideration”) in accordance with Section 2.8.2(d). The Final Merger Consideration adjustment required hereby is referred to as the “Adjustment.”
(d) If the New Reinsurance Premium as finally determined Adjustment results in Shortfall Consideration, then within three (3) Business Days after the Final Determination Date, Buyer and the Holder Representative shall instruct the Escrow Agent to pay to Buyer out of the Adjustment Escrow Account an amount equal to the Shortfall Consideration; provided, that if the funds then available in the Adjustment Escrow Account are less than the Shortfall Consideration, then the excess of the Shortfall Consideration over the funds then available in the Adjustment Escrow Account shall be paid from the Indemnity Escrow Account to Buyer; provided, further, that if the Indemnity Escrow Account is depleted, under no circumstances shall Buyer be entitled to any further recovery. If the Adjustment results in Excess Consideration, then, within three (3) Business Days after the Final Determination Date, subject to Section 2.6.2(a), Buyer will pay the Excess Consideration to the Payment Agent and the Surviving Corporation, in accordance with Section 2.6.2(k), for further payment to the Sellers pursuant to the final sentence of Section 2.6.1. If, after all payments pursuant to this Section 3.3 is (i2.8.2(d) greater than have been made, there are funds remaining in the Estimated New Reinsurance Premium (Adjustment Escrow Account, Buyer and the Holder Representative shall promptly instruct the Escrow Agent to release all such differencefunds to the Payment Agent and the Surviving Corporation, a “Positive Adjustment Amount”in accordance with Section 2.6.2(k), then Aspen shall pay for further payment to the Reinsurer (or Sellers pursuant to the applicable Trust Accounts, final sentence of Section 2.6.1. Notwithstanding anything to the extent contrary herein, any amount payable under this Section 2.8.2(d) that is taxable as compensation shall be paid to the Reinsurer’s Posted Collateral is less than the Initial Required Collateral AmountSurviving Corporation for distribution in accordance with Section 2.6.2(d), by wire transfer of immediately available funds to one or more accounts designated in writing by the Reinsurer, the Positive Adjustment Amount within five (5) Business Days following final determination of the New Reinsurance Premium and any amounts distributable pursuant to this Section 3.3 or (ii2.8.2(d) less than shall be reduced, in the Estimated New Reinsurance Premium (the absolute value of such differenceaggregate, a “Negative Adjustment Amount”), then Aspen shall reduce the Funds Withheld Account Balance by the Negative Adjustment Amountemployer portion of any applicable employment, payroll, social security, unemployment or similar Taxes (other than to the extent such Taxes have already been accounted for in the calculation of the Excluded Payroll Accounts, included as a Company Transaction Expense or otherwise resulted in a reduction in Final Merger Consideration pursuant to the terms of this Agreement).
Appears in 2 contracts
Sources: Merger Agreement, Merger Agreement (Select Medical Corp)
Post-Closing Adjustment. (a) No later than forty-five (45) Within 90 days following the Closing Date, Aspen Seller shall prepare and deliver to IDB Buyer a consolidated balance sheet of 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, Seller Retained Subsidiaries as of the Closing Date(giving effect to the Estimated Available Cash Allocation) (the “Seller Closing Balance Sheet”), together which shall be prepared in conformity with all accountingGAAP applied on a basis consistent with the preparation of, actuarial and other data using the same accounting methods, policies, practices, procedures 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 estimation methods as those used in the preparation of the Final Closing Statement balance sheet for the purpose offiscal year ended December 31, 2013, included in the GFI Financial Statements, and to which shall include a calculation of Available Cash at 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 Seller Retained Subsidiaries 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”), Working Capital derived from the items and amounts in dispute on such balance sheet. Within 90 days following the Closing Date, IDB Buyer shall be submitted for review prepare and deliver to Seller a consolidated balance sheet of IDB Buyer and the IDB Subsidiaries as of the Closing (giving effect to the Independent Actuary for final determination within forty-five Estimated Available Cash Allocation) (45) days after such submission. The Independent Actuary shall decide all matters relating to the procedures to be followed for resolution of “IDB Buyer Closing Balance Sheet” and together with the dispute, including those relating to the submission and receipt of information and documents; provided, however, that at the request of either Aspen or the Reinsurer, a meeting shall be held at which the Parties may present their views, that both Aspen and the Reinsurer shall have equal access to the Independent Actuary, and that all information and documents which either Party delivers or makes available to the Independent Actuary shall be furnished to the other Party as well. The review by the Independent Actuary shall be limited solely to the disputed items (and any items affected thereby) and amounts in the True-Up Dispute Notice that remain unresolved. Any determination by the Independent Actuary shall not be outside the range defined by the respective amounts in the Final Seller Closing Statement and the True-Up Dispute Notice, and such determination shall be final and binding upon, and non-appealable byBalance Sheet, the Parties and their respective successors and assigns for all purposes of this Agreement, and not subject to collateral attack for any reason absent manifest error or fraud. The fees and expenses of the Independent Actuary arising from such arbitration shall be paid by the Parties pro rata based on where the Independent Actuary’s determination of the New Reinsurance Premium falls in comparison to the amount claimed by ▇▇▇▇▇ in the Final “Closing Statement and the amount claimed by the Reinsurer in the True-Up Dispute Notice.
(d) If the New Reinsurance Premium as finally determined pursuant to this Section 3.3 is (i) greater than the Estimated New Reinsurance Premium (such difference, a “Positive Adjustment AmountBalance Sheets”), then Aspen which shall pay to be prepared in conformity with GAAP applied on a basis consistent with the Reinsurer (or to preparation of, and using the applicable Trust Accountssame accounting methods, to policies, practices, procedures and estimation methods as those used in the extent preparation of the balance sheet for the fiscal year ended December 31, 2013, included in the GFI Financial Statements, and which shall include a calculation of Available Cash at the IDB Subsidiaries and Tangible Common Equity, in each case derived from the items and amounts on such balance sheet. The Parties agree that the Reinsurer’s Posted Collateral is less than purpose of preparing the Initial Required Collateral Amount)Closing Balance Sheets and determining the Available Cash, Working Capital and Tangible Common Equity and the related adjustment contemplated by wire transfer of immediately available funds to one or more accounts designated in writing by the Reinsurer, the Positive Adjustment Amount within five (5) Business Days following final determination of the New Reinsurance Premium pursuant to this Section 3.3 2.7 is to measure the amount of Available Cash, Working Capital and Tangible Common Equity and such processes are not intended to permit the introduction of different judgments, accounting methods, policies, principles, practices, procedures, classifications or (ii) less than estimation methodologies for the Estimated New Reinsurance Premium (purpose of preparing the absolute value of such differenceClosing Balance Sheets or determining Available Cash, a “Negative Adjustment Amount”), then Aspen shall reduce the Funds Withheld Account Balance by the Negative Adjustment AmountWorking Capital and Tangible Common Equity.
Appears in 2 contracts
Sources: Purchase Agreement (Cme Group Inc.), Purchase Agreement (GFI Group Inc.)
Post-Closing Adjustment. (a) No later than forty-five Within sixty (4560) days following the Closing Date, Aspen the Cedant shall deliver to the Reinsurer a detailed statement (the “Reconciliation Statement”) prepared in good faith by the Cedant in the same form as the Closing Estimated Settlement Statement (the “Final Closing Statement”) setting forth Aspenthe Cedant’s good faith calculation of (i) the New Reinsurance actual amount of the Initial Premium (including the New Reinsurance Premium Accrued Interestsuch amount, the Roll-forward Amount and the ULAE Reimbursement Amount“Actual Initial Premium”) and (ii) the Initial Required Collateral Amount, in each case, actual Ceding Commission calculated using the actual Hedge Adjustment Amount as of the Closing Date, together with all accounting, actuarial and other data and documentation reasonably necessary for Date (the Reinsurer to review ▇▇▇▇▇’s proposed final calculations of such amounts“Actual Ceding Commission”).
(b) Upon Following receipt of the Final Closing Reconciliation Statement, the Reinsurer shall have sixty (60) days (the “Review Period”) to review such Reconciliation Statement. In connection with the review of the Reconciliation Statement, the Cedant shall provide, and shall cause its Affiliates to provide, the Reinsurer and its authorized Representatives will be given Representatives, upon the request of the Reinsurer, reasonable access to the Cedant Books and Records and all accounting, actuarial work papers and other data supporting detail prepared by the Cedant and documentation related to its Representatives and advisors in connection with the preparation of the Final Closing Reconciliation Statement for and make reasonably available to the purpose ofReinsurer and its Representatives personnel of the Cedant and its Affiliates that have been involved in the preparation of the Reconciliation Statement. If the Reinsurer has accepted the Reconciliation Statement in writing or has not given written notice to the Cedant setting forth any objection to the Reconciliation Statement (a “Reconciliation Statement Objection”) prior to the expiration of the Review Period, then the Reconciliation Statement shall be final and binding upon the parties. The Reinsurer may only object to a Reconciliation Statement on the basis of (i) mathematical error, (ii) the Actual Initial Premium not being determined in accordance with the terms hereof, including the definition of “Initial Premium” or (iii) the Actual Ceding Commission not being determined in accordance with the terms hereof, including the definitions of “Ceding Commission” and “Hedge Adjustment Amount” (collectively, the “Agreed Bases”). If the Reinsurer delivers a Reconciliation Statement Objection to the Reconciliation Statement prior to the expiration of the Review Period, then the parties shall attempt to amicably resolve any such objection within thirty (30) days following receipt by the Cedant of the Reconciliation Statement Objection.
(c) If any such objections are resolved in writing by the parties, then such resolutions shall be final and binding upon the parties and shall be incorporated into the Reconciliation Statement. If any such objections are not resolved in writing within thirty (30) days following receipt by the Reinsurer of the Reconciliation Statement, then the parties shall submit any such objections which remain unresolved to the Independent Accountant.
(d) Within ten (10) Business Days of the appointment of the Independent Accountant, the Cedant shall provide the Independent Accountant with a copy of the Reconciliation Statement (as modified by any adjustments agreed to in writing by the parties pursuant to Section 3.05(c)), and the Reinsurer and the Cedant shall each prepare and deliver to the extent Independent Accountant a written report of such line item or items remaining in dispute, which report shall set forth the specific dollar amount proposed by such party for each such item or items and a detailed explanation of the basis and rationale for such party’s positions.
(e) The Independent Accountant shall thereafter finally determine the manner in which such disputed item or items shall be treated in the Reconciliation Statement and issue a written award including a reasonably necessary fordetailed accounting of any required change to the Reconciliation Statement. In making its determination, verifying the Final Closing Independent Accountant shall (i) consider only those items that are (A) identified in the Reconciliation Statement Objection as in dispute and (B) were not resolved in writing by the Reinsurer and the Cedant, (ii) base its determination solely on such reports submitted by the Reinsurer and the Cedant and the Agreed Bases and not on the basis of an independent review, (iii) not assign a value to any item greater than the greatest value for such item claimed by either the Reinsurer in the Reconciliation Statement Objection or the Cedant in the Reconciliation Statement, or less than the smallest value for such item claimed by either the Reinsurer in the Reconciliation Statement Objection or the Cedant in the Reconciliation Statement, as applicable, and (iv) barring exceptional circumstances, make its determination within thirty (30) days of its appointment; provided that the failure of the Independent Accountant to make its determination in such thirty (30) day period shall not be grounds to defend against or object to the enforcement of such determination.
(f) Each of the Reinsurer and the Cedant agree to enter into a customary engagement letter with the Independent Accountant. The Reinsurer and the Cedant shall reasonably cooperate with the Independent Accountant and shall provide, upon the request of the Independent Accountant, any non-privileged information and documentation, including any actuaries’ or accountants’ work papers or internal reserving papers, files and models, and make reasonably available to the Independent Accountant personnel of the Cedant and its Affiliates, on the one hand, and the Reinsurer and its Affiliates, on the other hand, in each case that have been involved in the preparation of the Reconciliation Statement; provided, however, that no independent accountants or the independent actuaries or accountants of Aspen the Reinsurer or the Cedant shall not be required obligated to make any work working papers available to the Reinsurer Independent Accountant unless and until the Reinsurer Independent Accountant has signed a customary confidentiality and hold harmless agreement relating to such access to work working papers in form and substance reasonably acceptable to such independent accountants actuaries or independent actuariesaccountants, 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 Any such information 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 documentation provided by the Reinsurer as final, except or the Cedant to the Independent Accountant shall concurrently be provided to the other party 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 such submission. The Independent Actuary shall decide all matters relating to the procedures to be followed for resolution of the dispute, including those relating to the submission and receipt of information and documentsnot already so provided; provided, however, that at the request independent actuaries or accountants of either Aspen the Reinsurer or the ReinsurerCedant shall not be obligated to make any working papers available to the other party unless and until the other party has signed a customary confidentiality and hold harmless agreement relating to such access to working papers in form and substance reasonably acceptable to such independent actuaries or accountants, a meeting as applicable. Neither party shall be held at which the Parties may present their views, that both Aspen and the Reinsurer shall have equal access disclose to the Independent ActuaryAccountant, and that all information and documents which either Party delivers or makes available to the Independent Actuary Accountant shall be furnished not consider for any purpose, any settlement discussions or settlement offer made by either party with respect to the other Party as well. any objection under this Section 3.05 unless otherwise agreed in writing by both parties.
(g) The review by the Independent Actuary shall be limited solely to the disputed items (and any items affected thereby) and amounts in the True-Up Dispute Notice that remain unresolved. Any determination by the Independent Actuary shall not be outside Accountant of the range defined by the respective amounts in the Final Closing Statement Actual Initial Premium and the True-Up Dispute Notice, and such determination Actual Ceding Commission shall be final and binding uponupon the parties; provided, and non-appealable byhowever, that within three (3) Business Days after the Parties and their respective successors and assigns for all purposes transmittal of this Agreementthe Independent Accountant’s award, and not subject either party may request in writing to collateral attack for the Independent Accountant, with a copy thereof provided to the other party in accordance with Section 18.02, with such request solely limited to the Independent Accountant correcting any reason absent manifest error clerical, typographical or fraudarithmetic errors in such award. The fees other party shall have three (3) Business Days to respond to the Independent Accountant in writing to such request, with a copy thereof provided to the other party in accordance with Section 18.02. The Independent Accountant shall dispose of such request, if no response was received during such three (3) Business Day period from the other party, within five (5) Business Days after receiving such request or, if such a response was received during such period, within three (3) Business Days of its receipt of such a response. The determinations by the Independent Accountant shall be an expert determination under Michigan Law governing expert determination and appraisal proceedings. Either party hereto may petition any court identified in Section 18.08 to reduce such decision to judgment. One-half of all fees, costs and expenses of retaining the Independent Actuary arising from such arbitration Accountant shall be paid borne by the Parties pro rata based on where Reinsurer and one-half of such fees, costs and expenses of retaining the Independent Actuary’s Accountant shall be borne by the Cedant. For the avoidance of doubt, the Independent Accountant shall act as an expert, not as an arbitrator, and neither the determination of the New Reinsurance Premium falls in comparison Independent Accountant, nor this agreement to submit to the amount claimed by ▇▇▇▇▇ in determination of the Final Closing Statement and the amount claimed Independent Accountant, shall be subject to or governed by the Reinsurer in the True-Up Dispute NoticeFederal Arbitration Act, 9 U.S.C. § 1 et seq., or any state arbitration Law or regime.
(dh) If the New Reinsurance The “Initial Premium as finally determined pursuant Adjustment” shall be an amount equal to this Section 3.3 is (i) greater than (A) the amount of the Actual Initial Premium, as finalized pursuant to the procedures set forth in this Section 3.05, minus (B) the Estimated New Reinsurance Initial Premium, minus (ii) (A) the Actual Ceding Commission, as finalized pursuant to the procedures set forth in this Section 3.05, minus (B) the Estimated Ceding Commission. If the Initial Premium (such difference, a “Positive Adjustment Amount”)is positive, then Aspen the Cedant shall pay deposit into the Funds Withheld Account an amount of cash equal to the Reinsurer (or to the applicable Trust Accounts, to the extent that the Reinsurer’s Posted Collateral is less than the Initial Required Collateral Amount), by wire transfer of immediately available funds to one or more accounts designated in writing by the Reinsurer, the Positive Premium Adjustment Amount within five (5) Business Days following the final determination of the New Reinsurance Actual Initial Premium pursuant to in accordance with the procedures set forth in this Section 3.3 or (ii) less than 3.05, together with an amount of interest on the Estimated New Reinsurance Initial Premium (Adjustment calculated at the Interest Rate for the period from the Closing Date to, but not including, the date of payment. If the Initial Premium Adjustment is negative, then the Cedant shall be permitted to withdraw from the Funds Withheld Account an amount of cash or, if sufficient cash is not available in the Funds Withheld Account, assets with a Fair Market Value equal to the absolute value of such differencethe Initial Premium Adjustment within five (5) Business Days following the final determination of the Actual Initial Premium in accordance with the procedures set forth in this Section 3.05, a “Negative together with an amount of interest on the absolute value of the Initial Premium Adjustment Amount”)calculated at the Interest Rate for the period from the Closing Date to, then Aspen shall reduce but not including, the Funds Withheld Account Balance by the Negative Adjustment Amountdate of payment.
Appears in 2 contracts
Sources: Coinsurance Agreement (Jackson Financial Inc.), Coinsurance Agreement (Athene Holding LTD)
Post-Closing Adjustment. (a) No later than Within ninety (90) calendar days after the Closing Date, Buyer shall prepare and deliver to Seller a consolidated balance sheet of the Target Companies as of 11:59 p.m. on the day immediately preceding the Closing Date, prepared in accordance with GAAP and on a basis consistent with the GAAP conventions used for the preparation of the Audited Financial Statements; provided that such balance sheet shall reflect the Transaction Costs accrued as of the Closing and shall include each of the items set forth in the definition of Closing Working Capital (whether or not otherwise required to be included on a balance sheet prepared in accordance with GAAP), but otherwise shall be calculated without giving effect to the consummation of the Contemplated Transactions and shall exclude any Indebtedness incurred under financing or refinancing arrangements entered into at any time by any of the Buyer Parties or any other transaction entered into by any of the Buyer Parties in connection with the Contemplated Transactions (including with respect to any of the Target Companies) (such balance sheet, the “Proposed Final Balance Sheet”). The Proposed Final Balance Sheet shall also include schedules setting forth the calculation of (i) Closing Working Capital as of 11:59 p.m. on the day immediately preceding the Closing Date as reflected in the Proposed Final Balance Sheet (the “Proposed Final Closing Working Capital”), (ii) Cash of the Target Companies as of 11:59 p.m. on the day immediately preceding the Closing Date as reflected in the Proposed Final Balance Sheet (the “Proposed Final Closing Cash”) and (iii) the Balance Sheet Indebtedness of the Target Companies as of 11:59 p.m. on the day immediately preceding the Closing Date as reflected in the Proposed Final Balance Sheet (the “Proposed Final Balance Sheet Indebtedness”). The Proposed Final Closing Balance Sheet, together with such schedules, is referred to herein as the “Proposed Final Closing Statement”.
(b) Seller will have forty-five (45) calendar days following delivery of the Closing Date, Aspen shall deliver to the Reinsurer a detailed statement in the same form as the Proposed Final Closing Statement during which to notify Buyer in writing (the “Notice of Objection”) of any objections to the preparation of the Proposed Final Balance Sheet or the calculation of the Proposed Final Closing Statement”) setting forth Aspen’s good faith calculation of (i) the New Reinsurance Premium (including the New Reinsurance Premium Accrued InterestWorking Capital, the Roll-forward Amount Proposed Final Closing Cash, and the ULAE Reimbursement Amount) and (ii) the Initial Required Collateral AmountProposed Final Balance Sheet Indebtedness, in each case, setting forth the basis of its objections in such detail as will permit Buyer to understand such objections, and the U.S. dollar amount of each objection. In reviewing 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 Proposed Final Closing Statement, the Reinsurer and its authorized Representatives will Seller (i) shall be given entitled to reasonable access during normal business hours to all accountingmaterial personnel, actuarial accountants, books, records, contracts and other data and documentation related to the preparation documents of the Final Closing Statement for Target Companies that are required by Seller to confirm 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 accuracy of the Reinsurer’s receipt of the Proposed Final Closing Statement, the Reinsurer may deliver written notice and (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 deliveredii) shall be deemed to be accepted furnished by the Reinsurer as final, except to the extent that Target Companies 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 such submission. The Independent Actuary shall decide all matters relating to the procedures to be followed for resolution of the dispute, including those relating to the submission and receipt of information and documents; provided, however, data that at the Seller may reasonably request of either Aspen or the Reinsurer, a meeting shall be held at which the Parties may present their views, that both Aspen and the Reinsurer shall have equal access to the Independent Actuary, and that all information and documents which either Party delivers or makes available to the Independent Actuary shall be furnished to the other Party as well. The review by the Independent Actuary shall be limited solely to the disputed items (and any items affected thereby) and amounts in the True-Up Dispute Notice that remain unresolved. Any determination by the Independent Actuary shall not be outside the range defined by the respective amounts in the Final Closing Statement and the True-Up Dispute Notice, and such determination shall be final and binding upon, and non-appealable by, the Parties and their respective successors and assigns for all purposes of this Agreement, and not subject to collateral attack for any reason absent manifest error or fraud. The fees and expenses of the Independent Actuary arising from such arbitration shall be paid by the Parties pro rata based on where the Independent Actuary’s determination of the New Reinsurance Premium falls in comparison to the amount claimed by ▇▇▇▇▇ in the Final Closing Statement and the amount claimed by the Reinsurer in the True-Up Dispute Notice.
(d) If the New Reinsurance Premium as finally determined pursuant to this Section 3.3 is (i) greater than the Estimated New Reinsurance Premium (such difference, a “Positive Adjustment Amount”), then Aspen shall pay to the Reinsurer (or to the applicable Trust Accounts, to the extent that the Reinsurer’s Posted Collateral is less than the Initial Required Collateral Amount), by wire transfer of immediately available funds to one or more accounts designated in writing by the Reinsurer, the Positive Adjustment Amount within five (5) Business Days following final determination of the New Reinsurance Premium pursuant to this Section 3.3 or (ii) less than the Estimated New Reinsurance Premium (the absolute value of such difference, a “Negative Adjustment Amount”), then Aspen shall reduce the Funds Withheld Account Balance by the Negative Adjustment Amount.readily
Appears in 2 contracts
Sources: Equity Interest Purchase Agreement, Equity Interest Purchase Agreement (NGL Energy Partners LP)
Post-Closing Adjustment. (ai) No later than forty-five Within ninety (4590) days following after the Closing Date, Aspen shall Seller will deliver to Buyer its good faith calculation of the Reinsurer a detailed statement Purchase Price and the resulting Cash Purchase Price derived therefrom, in each case calculated in accordance with this Agreement and Appendix A and presented in the same form and format as the Closing Statement Appendix B (the “Final Post-Closing Adjustment Statement”) setting forth Aspen’s good faith calculation ). ▇▇▇▇▇ agrees that Seller shall have a reasonable right 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, consultation with Buyer in each case, as of the Closing Date, together connection with all accounting, actuarial and other data and documentation reasonably necessary for the Reinsurer to review ▇▇▇▇▇▇’s proposed final calculations preparation of such amountsthe Post-Closing Adjustment Statement and will provide Seller and its Representatives with access to its books, records, information, and employees as Seller may reasonably request. Buyer shall cause the personnel of Buyer and its subsidiaries (including the Acquired Company) to cooperate with Seller and its Representatives in connection with their preparation of the Post-Closing Adjustment Statement.
(bii) Upon receipt of The amounts determined by Seller as set forth in the Final Post-Closing Adjustment Statement will be final, binding, and conclusive for all purposes unless, and only to the extent, that within sixty (60) days after Seller has delivered the Post-Closing Adjustment Statement, the Reinsurer and its authorized Representatives will be given reasonable access Buyer delivers to all accounting, actuarial and other data and documentation related Seller a written report containing any proposed changes to the preparation Post-Closing Adjustment Statement, an explanation of the Final Closing Statement for the purpose ofany such changes, 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 reasons 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 accompanied 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 reasonably detailed documentation showing ▇▇▇▇▇’s receipt calculation of the disputed amounts (an “Adjustment Dispute Notice”); provided, that the disagreement may be based for purposes of this Section 2.2(c) only on (i) mathematical errors, or (ii) amounts reflected in the Post-Closing Adjustment Statement not being calculated in accordance with this Agreement and Appendix A and the Accounting Principles. Any changes not included in the Adjustment Dispute Notice shall be deemed irrevocably waived, and Seller’s determinations with respect to all such elements of the Post-Closing Adjustment Statement that are not addressed with specificity in the Adjustment Dispute Notice shall prevail and be deemed final and binding on the Parties. If ▇▇▇▇▇ fails to timely deliver an Adjustment Dispute Notice to Seller, the Post- Closing Adjustment Statement as delivered by Seller will be deemed to be mutually agreed upon by the Parties and will be final and binding on the Parties. If the Cash Purchase Price set forth in the Post-Closing Adjustment Statement is mutually agreed upon by Seller and Buyer, the Post-Closing Adjustment Statement and the Cash Purchase Price set forth therein shall be final and binding on the Parties.
(iii) If Buyer delivers an Adjustment Dispute Notice in compliance with Section 2.2(c)(ii) and Seller and Buyer are unable to reach a True-Up resolution with respect to all disputed items within 30 days of delivery of the Adjustment Dispute Notice (the “True-up Dispute Cooling-Off Period”or such later date as may be mutually agreed in writing by Seller and Buyer), the Seller and Buyer will submit any items and amounts remaining in dispute shall be submitted for review determination and resolution to the Independent Actuary for final determination Accounting Firm. The Independent Accounting Firm will be instructed to, and shall, determine, and resolve any such remaining disputed items in accordance with this Agreement and Appendix A and the Accounting Principles, as appropriate depending on the item at issue, and issue a final, written report to the Parties, within forty-five (45) 30 days after such submission. The , of the Independent Actuary shall decide all matters relating to the procedures to be followed for Accounting Firm’s final determination and resolution of the disputedisputed items submitted to it. In resolving any disputed items, the Independent Accounting Firm: (i) shall limit its review to matters specifically set forth in the Adjustment Dispute Notice and in the case of all other items shall use the amounts which are agreed (or deemed agreed) upon by Seller and Buyer; (ii) shall limit its review to correcting mathematical errors and determining whether such disputed items were determined in accordance with this Agreement and Appendix A and the Accounting Principles and shall not make any other determination, including those relating any determination as to whether any estimates on the submission Post-Closing Adjustment Statement are correct, adequate, or sufficient; and receipt of information and documents(iii) may not assign a value to any item greater than the greatest value claimed for such item or less than the smallest value for such item claimed by either Buyer or Seller in the Post-Closing Adjustment Statement or Adjustment Dispute Notice, respectively; provided, however, that at the request of either Aspen or the Reinsurer, a meeting shall be held at which the Parties may present their views, that both Aspen and the Reinsurer shall have equal access to the Independent Actuaryextent the determination of the value of any disputed item affects any other item used in calculating the Final Cash Purchase Price, and that all information and documents which either Party delivers or makes available to the Independent Actuary shall such effect may be furnished to the other Party as well. The review taken into account by the Independent Actuary shall be limited solely to the disputed items (and any items affected thereby) and amounts in the True-Up Dispute Notice that remain unresolvedAccounting Firm. Any determination by The report of the Independent Actuary shall not Accounting Firm will be outside the range defined by the respective amounts in the Final Closing Statement and the True-Up Dispute Noticefinal, binding, and such determination shall be final and binding upon, and non-appealable by, conclusive on the Parties and their respective successors and assigns for all purposes of this Agreementpurposes, and not subject to collateral attack for any reason absent manifest error or fraudFraud. The fees and expenses disbursements of the Independent Actuary arising from Accounting Firm will be allocated between Seller and Buyer so that ▇▇▇▇▇’s share of such arbitration shall fees and disbursements will be paid by in the Parties pro rata based on where same proportion that the aggregate amount of any such remaining disputed items so submitted to the Independent Actuary’s determination of the New Reinsurance Premium falls in comparison to the amount claimed Accounting Firm that is unsuccessfully disputed by ▇▇▇▇▇ in the Final Closing Statement and the amount claimed (as finally determined by the Reinsurer in Independent Accounting Firm) bears to the True-Up Dispute Noticetotal amount of such disputed amounts initially submitted to the Independent Accounting Firm.
(div) If Within 10 Business Days following the New Reinsurance Premium as finally determined final determination of the Cash Purchase Price pursuant to this Section 3.3 is 2.2(c)(ii) or Section 2.2(c)(iii) (as so determined, the “Final Cash Purchase Price”), (i) if the Final Cash Purchase Price is greater than the Estimated New Reinsurance Premium Cash Purchase Price, Buyer will pay the difference to Seller or (such difference, a “Positive Adjustment Amount”), then Aspen shall pay to ii) if the Reinsurer (or to the applicable Trust Accounts, to the extent that the Reinsurer’s Posted Collateral Final Cash Purchase Price is less than the Initial Required Collateral Amount)Estimated Cash Purchase Price, Seller will pay the difference to Buyer. Any amount paid under this Section 2.2(c)(iv) shall be paid in cash by wire transfer of immediately available funds to one or more accounts designated in writing the account specified by the Reinsurer, Party receiving payment. Neither the Positive Adjustment Amount within five (5) Business Days following final determination of the New Reinsurance Premium pursuant Final Cash Purchase Price nor any payment thereof shall be deemed to waive or limit in any respect any representation, warranty, or rights in respect thereof under this Section 3.3 or (ii) less than the Estimated New Reinsurance Premium (the absolute value of such difference, a “Negative Adjustment Amount”), then Aspen shall reduce the Funds Withheld Account Balance by the Negative Adjustment AmountAgreement.
Appears in 2 contracts
Sources: Securities Purchase Agreement (National Fuel Gas Co), Securities Purchase Agreement (Centerpoint Energy Resources Corp)
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 after the Closing Date, the OpCo Buyer shall prepare and deliver to the Seller a statement setting forth its calculation of Closing Working Capital and Closing Date Company Cash (and each component thereof), which statement shall contain a balance sheet of the Reinsurer’s receipt Company as of the Final Closing Statement, Date (without giving effect to the Reinsurer may deliver written notice Transactions) and a calculation of the Closing Working Capital and the Post-Closing Adjustment (the “True-Up Dispute NoticeClosing Statement”) to Aspen of any objections), specifying in reasonable detail any contested amounts together with such schedules and the basis therefor, which the Reinsurer may have data with respect to the Final determination thereof as may be appropriate to support the calculations set forth in the Closing Statement. The failure Closing Statement, as it applies to the calculation of Closing Working Capital, will be prepared using the same accounting principles and policies, with consistent classifications, judgments and valuation and estimation methodologies that were used in the preparation of the Reinsurer to deliver Example Calculation and otherwise in accordance with the Audited Financial Statements for the most recent fiscal year end as if such True-Up Dispute Notice within Closing Statement was being prepared and audited as of a fiscal year end, except for (x) such reclassifications and estimation methodologies changes as reflected in the prescribed time period will constitute Interim Financial Statements and (y) such adjustments and estimates as may be required, in the Reinsurer’s acceptance as final good faith determination of the Final OpCo Buyer, to take account of the fact that the Closing Statement as determined by ▇▇▇▇▇. Any amounts not disputed is being prepared at a time other than following the closing of the Company’s books for the prior fiscal year end, which adjustments and estimates shall be consistent with the adjustments and estimates used in the Truepreparation of the Estimated Closing Statement.
(ii) The post-Up Dispute Notice closing adjustment (if one is deliveredthe “Post-Closing Adjustment”) shall be deemed to be accepted by the Reinsurer as final, except an amount equal to the extent that such amounts are affected by any disputed amounts.sum of:
(cA) If Aspen The difference between Closing Date Company Cash and the Reinsurer are unable to resolve all disagreements with respect to the Final Estimated Closing Statement within thirty Date Company Cash (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 such submission. The Independent Actuary shall decide all matters relating to the procedures to be followed for resolution of the dispute, including those relating to the submission and receipt of information and documents; provided, however, that at the request of either Aspen or the Reinsurer, a meeting shall be held at which the Parties may present their views, that both Aspen and the Reinsurer shall have equal access to the Independent Actuary, and that all information and documents which either Party delivers or makes available to the Independent Actuary shall be furnished to the other Party as well. The review by the Independent Actuary shall be limited solely to the disputed items (and any items affected thereby) and amounts in the True-Up Dispute Notice that remain unresolved. Any determination by the Independent Actuary shall not be outside the range defined by the respective amounts in the Final Closing Statement and the True-Up Dispute Notice, and such determination shall be final and binding upon, and non-appealable by, the Parties and their respective successors and assigns for all purposes of this Agreement, and not subject to collateral attack for any reason absent manifest error or fraud. The fees and expenses of the Independent Actuary arising from such arbitration shall be paid by the Parties pro rata based on where the Independent Actuary’s determination of difference will be positive, if the New Reinsurance Premium falls in comparison to Closing Date Company Cash exceeds the amount claimed by ▇▇▇▇▇ in Estimated Closing Date Company Cash, or negative, if the Final Estimated Closing Statement and Date Company Cash exceeds the amount claimed by the Reinsurer in the True-Up Dispute Notice.Closing Date Company Cash); plus
(dB) The difference between Closing Working Capital and Estimated Closing Working Capital (where the difference will be positive, if the Closing Working Capital exceeds the Estimated Closing Working Capital, or negative, if the Estimated Closing Working Capital exceeds the Closing Working Capital). If the New Reinsurance Premium Post-Closing Adjustment as finally determined pursuant to in accordance with this Section 3.3 2.06 is (i) greater than a positive number, the Estimated New Reinsurance Premium (such difference, a “Positive Adjustment Amount”), then Aspen OpCo Buyer shall pay to the Reinsurer (or Seller an amount equal to the applicable Trust AccountsPost-Closing Adjustment. If the Post-Closing Adjustment is a negative number, the Seller shall pay to the extent that OpCo Buyer an amount equal to the Reinsurer’s Posted Collateral is less than the Initial Required Collateral Amount), by wire transfer of immediately available funds to one or more accounts designated in writing by the Reinsurer, the Positive Adjustment Amount within five (5) Business Days following final determination of the New Reinsurance Premium pursuant to this Section 3.3 or (ii) less than the Estimated New Reinsurance Premium (the absolute value of such difference, a “Negative Adjustment Amount”), then Aspen shall reduce the Funds Withheld Account Balance by the Negative Adjustment AmountPost-Closing Adjustment.
Appears in 2 contracts
Sources: Transaction Agreement (Penn National Gaming Inc), Transaction Agreement (Vici Properties Inc.)
Post-Closing Adjustment. (ai) No As promptly as reasonably practicable, but in no event later than forty-five ninety (4590) calendar days following the Closing Date, Aspen the Buyer shall deliver cause to the Reinsurer be prepared and delivered to Seller a detailed statement in the same form as the Closing Statement (the “Final Buyer Closing Statement”) setting forth Aspenin reasonable detail the Buyer’s good faith calculation of (i) the New Reinsurance Premium Adjustment Amount (including its good faith calculation of Closing Net Working Capital, Closing Indebtedness, Closing Cash and Closing Unpaid Transaction Expenses), together with reasonable supporting documentation of such calculations. In the New Reinsurance Premium Accrued Interestevent the Buyer does not deliver to the Buyer Closing Statement in accordance with this Section 2.03, the Roll-forward Amount calculations of Closing Net Working Capital, Closing Indebtedness, Closing Cash and Closing Unpaid Transaction Expenses set forth in the Estimated Closing Statement shall be deemed final and binding for all purposes under this Agreement, and the ULAE Reimbursement AmountAdjustment Amount (as finally determined in accordance with this Section 2.03) and shall be deemed to equal zero.
(ii) During the Initial Required Collateral Amount, in each case, as sixty (60) day period commencing upon receipt by Seller of the Buyer Closing DateStatement (the “Review Period”), together Buyer shall provide Seller and any accountants or advisors retained by Seller with all accounting, actuarial reasonable access to the books and other data and documentation reasonably necessary records of the Transferred Entities for the Reinsurer purposes of (A) enabling Seller and its accountants and advisors to calculate, and to review ▇▇▇▇▇Buyer’s proposed final calculations calculation of, the Adjustment Amount as reflected in the Buyer Closing Statement and (B) identifying any dispute related to the calculation of such amountsthe Adjustment Amount set forth in the Buyer Closing Statement.
(biii) Upon receipt of If Seller disputes the Final Adjustment Amount set forth in the Buyer 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 then Seller shall be required to make any work papers available to the Reinsurer unless the Reinsurer has signed deliver 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 an “True-Up Adjustment Dispute Notice”) to Aspen the Buyer prior to the expiration of the Review Period. The Adjustment Dispute Notice shall set forth, in reasonable detail, the principal basis for the dispute of such calculation and Seller’s determination of the Adjustment Amount (including its proposed calculations of Closing Net Working Capital, Closing Indebtedness, Closing Cash and Closing Unpaid Transaction Expenses and supporting documentation of such calculations).
(iv) If Seller does not deliver an Adjustment Dispute Notice to the Buyer prior to the expiration of the Review Period, the Adjustment Amount set forth in the Buyer Closing Statement shall be deemed final and binding on the Buyer and Seller as the Adjustment Amount for all purposes of this Agreement.
(v) If Seller delivers an Adjustment Dispute Notice to the Buyer prior to the expiration of the Review Period, then Seller and the Buyer shall meet, confer and exchange any additional relevant information reasonably requested by the other party regarding the computation of the Adjustment Amount for a period of twenty (20) calendar days following the delivery of the Adjustment Dispute Notice to the Buyer, and use reasonable best efforts to resolve by written agreement (the “Agreed Modifications”) any differences as to the Adjustment Amount. In the event the Buyer and Seller so resolve any such differences, the Adjustment Amount set forth in the Buyer Closing Statement, as adjusted by the Agreed Modifications shall be final and binding as the Adjustment Amount for all purposes of this Agreement. If Seller and the Buyer are unable to reach agreement on the calculation of the Adjustment Amount within the twenty (20) calendar day period following the delivery of the Adjustment Dispute Notice to the Buyer, then either Seller or the Buyer may submit the objections, specifying including details of their views as to the correct nature and amount of each item remaining in reasonable detail any contested amounts dispute, to a nationally recognized accounting firm with an active practice area focused on post-mergers and acquisitions purchase price dispute resolution mutually acceptable to Seller and the basis thereforBuyer (such firm, which or any successor thereto, being referred to herein as the Reinsurer may have “Designated Accounting Firm”) after such twentieth (20th) day. In resolving any disputed item, the Designated Accounting Firm (x) shall determine Closing Net Working Capital, Closing Indebtedness, Closing Cash and Closing Unpaid Transaction Expenses in accordance with the respective definitions thereof, (y) shall limit its review 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 matters still in dispute as final of the Final Closing Statement as determined by ▇▇▇▇▇. Any amounts not disputed specifically set forth in the True-Up Adjustment Dispute Notice (if one is delivered) shall be deemed to be accepted by the Reinsurer as final, except and only to the extent that such amounts matters are affected still in dispute) and (z) shall act as an expert and not as an arbitrator. The Designated Accounting Firm shall be directed by any disputed amounts.
(c) If Aspen the Buyer and the Reinsurer are unable Seller to resolve all disagreements the unresolved objections as promptly as reasonably practicable in accordance with respect to the Final Closing Statement terms of this Agreement, and, in any event, within thirty (30) calendar days following ▇▇▇▇▇’s receipt of such referral, and, upon reaching such determination, to deliver a True-Up Dispute Notice copy of its calculations (the “True-up Dispute Cooling-Off PeriodExpert Calculations”), the items and amounts in dispute shall be submitted for review ) to the Independent Actuary for final determination within forty-five (45) days after Buyer and Seller. In connection with the resolution of any such submission. The Independent Actuary dispute by the Designated Accounting Firm, each of the Buyer, Seller and their respective advisors and accountants shall decide all matters relating have a reasonable opportunity to meet with the Designated Accounting Firm to provide their respective views as to any disputed issues with respect to the procedures to be followed for resolution calculation of the dispute, including those relating to the submission and receipt of information and documentsAdjustment Amount; provided, howeverthat all communications with the Designated Accounting Firm shall include at least one Representative of each of the Buyer and Seller, that at the request of either Aspen or the Reinsurer, a meeting and no party shall be held at which permitted to communicate with the Parties may present their views, that both Aspen Designated Accounting Firm other than as expressly set forth herein and the Reinsurer shall have equal access to the Independent Actuary, and that all information and documents which either Party delivers or makes available to the Independent Actuary shall be furnished to governed by Rule 408 of the other Party as wellFederal Rules of Evidence. The review determination of the Adjustment Amount made by the Independent Actuary shall be limited solely to the disputed items (and any items affected thereby) and amounts in the True-Up Dispute Notice that remain unresolved. Any determination by the Independent Actuary shall not be outside the range defined by the respective amounts in the Final Closing Statement and the True-Up Dispute Notice, and such determination Designated Accounting Firm shall be final and binding upon, on the Buyer and non-appealable by, the Parties and their respective successors and assigns Seller for all purposes of this Agreement, and not subject to collateral attack for any reason absent manifest error error. The Expert Calculations (A) shall reflect in detail the differences, if any, between the calculation of the Adjustment Amount reflected in the Adjustment Dispute Notice and the calculation of the Adjustment Amount set forth in the Buyer Closing Statement, (B) with respect to any specific discrepancy or fraud. disagreement, shall be no greater than the higher amount calculated by the Buyer or Seller, as the case may be, and no lower than the lower amount calculated by the Buyer or Seller, as the case may be and (C) shall be based solely on the written materials submitted by the Buyer and Seller (i.e., not on independent review).
(vi) The fees and expenses of the Independent Actuary arising from such arbitration Designated Accounting Firm shall be paid borne by the Parties pro rata Buyer, on the one hand, and Seller, on the other hand, in inverse proportion as they may prevail on the matters resolved by the Designated Accounting Firm, which proportionate allocation shall be calculated on an aggregate basis based on where the Independent Actuary’s determination relative dollar values of the New Reinsurance Premium falls amounts in comparison dispute and shall be determined by the Designated Accounting Firm at the time the determination is rendered on the merits of the matters submitted to the amount claimed by ▇▇▇▇▇ Designated Accounting Firm. For example, should the items in the Final Closing Statement dispute total $1,000 and the amount claimed Designated Accounting Firm award $600 in favor of Seller’s position, then 60% of the costs of its review would be borne by the Reinsurer in Buyer and 40% of the True-Up Dispute Noticecosts of its review would be borne by the Seller.
(dvii) If the New Reinsurance Premium Adjustment Amount, as finally determined pursuant to in accordance with this Section 3.3 2.03, is a negative number (i) greater than the Estimated New Reinsurance Premium (absolute value of such differenceamount, a the “Positive Adjustment Shortfall Amount”)) then, then Aspen shall Seller will pay (or cause to be paid) to the Reinsurer (or to the applicable Trust Accounts, to the extent that the Reinsurer’s Posted Collateral is less than the Initial Required Collateral Amount)Buyer, by wire transfer of immediately available funds to one the account or more accounts designated in writing by the ReinsurerBuyer to Seller, an amount in cash equal to the Shortfall Amount.
(viii) If the Adjustment Amount, as finally determined in accordance with this Section 2.03, is zero or a positive number (such positive number, the Positive Adjustment Amount within five (5) Business Days following final determination of the New Reinsurance Premium pursuant to this Section 3.3 or (ii) less than the Estimated New Reinsurance Premium (the absolute value of such difference, a “Negative Adjustment Excess Amount”), then Aspen shall reduce Parent will promptly pay (or cause to be paid) to Seller, by wire transfer of immediately available funds to the Funds Withheld Account Balance account or accounts designated in writing by Seller to the Negative Adjustment Buyer, an amount in cash equal to the Excess Amount.
Appears in 2 contracts
Sources: Equity Purchase Agreement (Joby Aviation, Inc.), Equity Purchase Agreement (Blade Air Mobility, Inc.)
Post-Closing Adjustment. (a) No later than forty-five (45) Within 90 days following after the Closing Distribution Date, Aspen the Surviving Corporation shall deliver cause to be prepared and delivered to the Reinsurer a detailed statement in IP and UWWH Stockholder (a) an unaudited balance sheet of UWWH and its Subsidiaries as of the same form as the Closing Statement Calculation Time (the “Final UWWH Closing Balance Sheet”) and (b) a certificate endorsed by an executive officer of the Surviving Corporation certifying a statement (the “UWWH Closing Statement”) setting forth Aspenthe Surviving Corporation’s good faith calculation of (i) the New Reinsurance Premium (including the New Reinsurance Premium Accrued InterestUWWH Transaction Expenses Amount, the Roll-forward Amount and the ULAE Reimbursement Amount) and (ii) the Initial Required Collateral UWWH Working Capital Adjustment, (iii) the UWWH Net Debt Adjustment and (iv) the Adjustment Amount, including reasonable detail regarding the calculations thereof. The UWWH Closing Balance Sheet and the UWWH Closing Statement (x) shall be prepared in each case, as accordance with the Applicable Accounting Principles and (y) shall not give effect to the refinancing 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 amountsUnisource Credit Facility.
(b) Upon During the 60 day period following IP’s and the UWWH Stockholder’s respective receipt of the Final UWWH Closing Statement, the Reinsurer Surviving Corporation shall give IP and the UWWH Stockholder and each of their respective Representatives access at all reasonable times and on reasonable advance notice to the books, records, properties, working papers and personnel of the Surviving Corporation (including the Surviving Corporation’s senior finance and accounting personnel 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 accountants) to the extent reasonably necessary for, verifying required to permit IP and the Final UWWH Stockholder to review the UWWH Closing Balance Sheet and UWWH Closing Statement; provided. Within 60 days after receipt of the UWWH Closing Statement, that no independent accountants or independent actuaries of Aspen shall be required to make any work papers available IP and the UWWH Stockholder shall, in a written notice to the Reinsurer unless Surviving Corporation and IP or 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 actuariesUWWH Stockholder, 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 describe in reasonable detail any contested amounts proposed adjustments to the items set forth on the UWWH Closing Statement and the basis thereforreasons therefor (it being agreed that the only permitted reasons for such adjustments shall be mathematical error or the failure to compute items set forth therein in accordance with this Agreement). If the Surviving Corporation shall not have received a notice of proposed adjustments within such 60-day period from the UWWH Stockholder, which the Reinsurer may UWWH Stockholder will be deemed to have to accepted irrevocably the Final UWWH Closing Statement. The failure If the Surviving Corporation shall not have received a notice of the Reinsurer to deliver proposed adjustments within such True60-Up Dispute Notice within the prescribed time day period from IP, IP 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 have accepted irrevocably the UWWH Closing Statement. During the 30-day period following the delivery by IP or by the Reinsurer UWWH Stockholder of a notice of proposed adjustments to the Surviving Corporation and IP or UWWH, the UWWH Stockholder, IP and the Surviving Corporation, as finalapplicable, except shall give IP, the UWWH Stockholder or the Surviving Corporation, as applicable, and each of their respective Representatives access at all reasonable times and on reasonable advance notice to the books, records, properties, working papers and personnel of IP, the UWWH Stockholder or the Surviving Corporation, as applicable, (including senior finance and accounting personnel and their accountants) to the extent that such amounts are affected by any disputed amountsreasonably required to permit the UWWH Stockholder, IP or Surviving Corporation to evaluate the proposed adjustments.
(c) The UWWH Stockholder and IP shall negotiate in good faith to resolve any disputes over any proposed adjustments to the UWWH Closing Statement during the 30 days following the Surviving Corporation’s receipt of the proposed adjustments. If Aspen UWWH Stockholder and the Reinsurer IP are unable to resolve all disagreements such dispute within such 30-day period, then, at the written request of either such Party (the “Dispute Resolution Request”), each such Party shall appoint a knowledgeable, responsible representative to meet in person and negotiate in good faith to resolve the disputed matters. The Parties intend that these negotiations be conducted by experienced business representatives empowered to decide the issues. Such negotiations shall take place during the 30-day period following the date of the Dispute Resolution Request. If the business representatives resolve the dispute, such resolution shall be memorialized in a written agreement (the UWWH Closing Statement, as revised by such negotiations, written agreement or the final decision of the accounting firm referred to below, the “UWWH Final Closing Statement”). If the business representatives do not resolve the dispute during the periods described above, then the UWWH Stockholder and IP shall jointly engage KPMG LLP to arbitrate and resolve such disputes, which resolution shall be final, binding and enforceable in accordance with Section 11.15. If KPMG LLP is unable or unwilling to act as arbitrator, a nationally recognized accounting firm shall be selected by lot from among the remaining nationally recognized firms which are not the regular independent auditor firm of the UWWH Stockholder, IP or the Surviving Corporation, and in such event references herein to KPMG LLP shall be deemed to refer to such replacement accounting firm. Within the 30-day period following its engagement, KPMG LLP shall arbitrate and resolve such dispute based solely on the written submissions provided by UWWH Stockholder, IP and the Surviving Corporation and shall only consider whether the UWWH Closing Statement (and each component thereof) was prepared in accordance with this Agreement and (only with respect to disputed matters submitted to the Final accounting firm) whether and to what extent the UWWH Closing Statement within thirty requires adjustment. In resolving any disputed matter, KPMG LLP shall (30i) 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 adhere to the Independent Actuary definitions contained in this Agreement and the guidelines and principles of this Section 3.2 and (ii) shall not assign a value to any item higher than the highest value for final determination within forty-five (45) days after such submission. The Independent Actuary shall decide all matters relating to item claimed by the procedures to be followed for resolution of UWWH Stockholder and IP or lower than the dispute, including those relating to the submission and receipt of information and documentslowest value claimed by either such Party; provided, however, that at to the request extent the determination of either Aspen value of any disputed item affects any other item used in calculating the UWWH Working Capital Adjustment or the ReinsurerUWWH Net Debt Adjustment, a meeting shall such effect may be held at which the Parties may present their views, that both Aspen and the Reinsurer shall have equal access to the Independent Actuary, and that all information and documents which either Party delivers or makes available to the Independent Actuary shall be furnished to the other Party as well. The review taken into account by the Independent Actuary shall be limited solely to the disputed items (and any items affected thereby) and amounts in the True-Up Dispute Notice that remain unresolved. Any determination by the Independent Actuary shall not be outside the range defined by the respective amounts in the Final Closing Statement and the True-Up Dispute Notice, and such determination shall be final and binding upon, and non-appealable by, the Parties and their respective successors and assigns for all purposes of this Agreement, and not subject to collateral attack for any reason absent manifest error or fraudKPMG LLP. The fees and expenses of the Independent Actuary arising from such arbitration KPMG LLP shall be paid shared by the Parties pro rata based on where UWWH Stockholder and IP in inverse proportion to the Independent Actuary’s determination relative amounts of the New Reinsurance Premium falls disputed amount determined in comparison to favor of the amount claimed by ▇▇▇▇▇ in the Final Closing Statement UWWH Stockholder and the amount claimed by the Reinsurer in the True-Up Dispute NoticeIP, respectively.
(d) If Upon final determination of the New Reinsurance Premium as finally determined UWWH Final Closing Statement pursuant to this Section 3.3 is 3.2(c),
(i) greater than if the Estimated New Reinsurance Premium Adjustment Amount was positive,
(such difference, a “Positive A) and the Adjustment Amount exceeds the Estimated Adjustment Amount”), then Aspen the Surviving Corporation shall pay to the Reinsurer UWWH Stockholder an amount equal to such excess, or
(or B) and the Estimated Adjustment Amount exceeds the Adjustment Amount, (i) the UWWH Stockholder shall pay to the applicable Trust AccountsSurviving Corporation the lesser of (x) the Estimated Adjustment Amount and (y) such excess, and (ii) if the Adjustment Amount is negative, the Surviving Corporation shall pay to IP an amount equal to the extent that product of (x) the Reinsurer’s Posted Collateral Gross Up Percentage and (y) the absolute value of the Adjustment Amount; or
(ii) if the Estimated Adjustment Amount was negative,
(A) and the Estimated Adjustment Amount exceeds the Adjustment Amount, the Surviving Corporation shall pay to IP an amount equal to the product of (x) the Gross Up Percentage and (y) such excess; or
(B) and the Adjustment Amount exceeds the Estimated Adjustment Amount, (i) IP shall pay to the Surviving Corporation an amount equal to the lesser of (x) the product of the Gross Up Percentage and the absolute value of the Estimated Adjustment Amount and (y) the product of the Gross Up percentage and such excess and (ii) if the Adjustment Amount is less than positive, the Initial Required Collateral Surviving Corporation shall pay to the UWWH Stockholder an amount equal to the Adjustment Amount), .
(e) Any payment due pursuant to Section 3.2(d) shall be increased by an amount computed as interest from the Distribution Date through but excluding the date of payment at a rate of 6.0%; which interest shall accrue daily on the basis of a 365 day year calculated for the actual number of days for which payment is due. Any amount payable pursuant to Section 3.2(d) shall be made via wire transfer of immediately available funds to one or more accounts designated in writing by the Reinsurer, the Positive Adjustment Amount within five (5) Business Days following final determination of after the New Reinsurance Premium pursuant to this Section 3.3 or (ii) less than date upon which the Estimated New Reinsurance Premium (UWWH Closing Statement becomes the absolute value of such difference, a “Negative Adjustment Amount”), then Aspen shall reduce the Funds Withheld Account Balance by the Negative Adjustment AmountUWWH Final Closing Statement.
Appears in 2 contracts
Sources: Merger Agreement (Xpedx Holding Co), Merger Agreement (Xpedx Holding Co)
Post-Closing Adjustment. (a) No later than forty-five (45) days following In 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 event that (i) the New General Account 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 determined by reference to the Final Closing Statement. The failure Statement of Net Settlement exceeds 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 General Account Reinsurance Premium 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 reference 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 Estimated Statement of Net Settlement, then Sellers shall transfer to the Final Closing Ceded Business Trust assets (selected in accordance with Investment Asset Identification Protocol) with an aggregate statutory carrying value determined in accordance with the 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 Net Settlement Methods equal to the Independent Actuary for final determination within forty-five (45) days after such submission. The Independent Actuary shall decide all matters relating to the procedures to be followed for resolution of the dispute, including those relating to the submission and receipt of information and documents; provided, however, that at the request of either Aspen or the Reinsurer, a meeting shall be held at which the Parties may present their views, that both Aspen and the Reinsurer shall have equal access to the Independent Actuary, and that all information and documents which either Party delivers or makes available to the Independent Actuary shall be furnished to the other Party as well. The review by the Independent Actuary shall be limited solely to the disputed items (and any items affected thereby) and amounts in the True-Up Dispute Notice that remain unresolved. Any determination by the Independent Actuary shall not be outside the range defined by the respective amounts in the Final Closing Statement and the True-Up Dispute Notice, and such determination shall be final and binding upon, and non-appealable by, the Parties and their respective successors and assigns for all purposes of this Agreement, and not subject to collateral attack for any reason absent manifest error or fraud. The fees and expenses of the Independent Actuary arising from such arbitration shall be paid by the Parties pro rata based on where the Independent Actuary’s determination of the New Reinsurance Premium falls in comparison to the amount claimed by ▇▇▇▇▇ in the Final Closing Statement and the amount claimed by the Reinsurer in the True-Up Dispute Notice.
(d) If the New Reinsurance Premium as finally determined pursuant to this Section 3.3 is (i) greater than the Estimated New Reinsurance Premium (such difference, a “Positive Adjustment Amount”), then Aspen shall pay to the Reinsurer (or to the applicable Trust Accounts, to the extent that the Reinsurer’s Posted Collateral is less than the Initial Required Collateral Amount), by wire transfer of immediately available funds to one or more accounts designated in writing by the Reinsurer, the Positive Adjustment Amount excess within five (5) Business Days following final determination of the New Reinsurance Premium pursuant delivery of the Final Statement of Net Settlement, plus interest on such amount from and including the Closing Date up to this Section 3.3 but not including the date of payment accrued at the 60-Day Treasury Rate, or (ii) the General Account Reinsurance Premium determined by reference to the Final Statement of Net Settlement is less than the Estimated New General Account Reinsurance Premium determined by reference to the Estimated Statement of Net Settlement, then CIGNA Life, directly or from the Ceded Business Trust, as determined in accordance with the Coinsurance Agreement and the Ceded Business Trust Agreement, shall return to CGLIC assets (selected in accordance with the absolute Investment Asset Identification Protocol) previously transferred by CGLIC to the Ceded Business Trust with an aggregate statutory carrying value determined in accordance with the Statement of Net Settlement Methods equal to such shortfall within five (5) Business Days of the delivery to the Buyer of the Final Statement of Net Settlement, plus interest on such amount from and including the Closing Date up to but not including the date of payment accrued at the 60-Day Treasury Rate. The foregoing shall apply to the Guaranteed Cost Reinsurance Premium, provided that any adjustment to the Guaranteed Cost Reinsurance Premium shall be transferred to the Guaranteed Cost Business Trust by CGLIC or from the Guaranteed Cost Business Trust by the trustee thereof to CGLIC, as the case may be.
(b) On the Closing Date all Separate Account Assets as of such date shall be retained in the corresponding Modco Account. In the event any Separate Account Assets are not retained in the appropriate Modco Account at Closing, Sellers shall cause such assets to be transferred thereto promptly after discovery thereof, together with any interest, dividends or other earnings after the Closing Date in respect of such assets.
(c) Notwithstanding any other provision of this Agreement to the contrary, in the event CGLIC (i) fails to transfer to CIGNA Life or to the Ceded Business Trust, as the case may be, an asset reflected on either the Estimated Statement of Net Settlement or the Final Statement of Net Settlement, or (ii) erroneously transfers an Investment Asset to CIGNA Life which was not reflected on either the Estimated Statement of Net Settlement or the Final Statement of Net Settlement (and which was not to be transferred pursuant to this Agreement or any Ancillary Agreement), the parties agree to correct such error by effectuating a transfer or return, as the case may be, of the assets in question (or cash equal to the fair market value of such differenceasset) promptly upon receipt of a written notice from the other party describing the error. All written notice of any such error shall be provided on or before the second anniversary of the Closing Date.
(i) In the event that (A) there are inaccuracies or omissions in the factual data inputs utilized in the calculation of Insurance-Related Liabilities or the value of Transferred Investment Assets not addressed by Section 2.11(c) (such as inputting the wrong CUSIP number or interest rate), including data (and the omission of data) relating to the inventory of policies in force, the terms of such policies, the relevant information related to the holders or annuitants of such policies and activities related thereto, CUSIP numbers, interest rates, principal amounts, the terms of loan documents and organizational documents, the terms of leases, lease abstracts and rent rolls, or such factual data inputs are coded, compiled or aggregated inaccurately, other than omissions in the factual data inputs utilized in the calculation of the Insurance-Related Liabilities resulting from reasonable judgments by an actuary or other financial professional as to the scope of factual data inputs (or omissions of factual data inputs) (a “Negative Adjustment AmountData Input Inaccuracy”); (B) such Data Input Inaccuracy has resulted in a demonstrable error in the aggregate Insurance-Related Liabilities reflected on the Final Statement of Net Settlement or in the aggregate statutory carrying value (determined in accordance with the Statement of Net Settlement Methods) of the Transferred Investment Assets, and (C) Buyer has transmitted to Sellers a Notice of Demand (as defined below) with respect to such Data Input Inaccuracy prior to the second anniversary of the Closing Date, then Aspen the requirements of this Section 2.11(d) shall reduce the Funds Withheld Account Balance by the Negative Adjustment Amountbe applicable.
Appears in 2 contracts
Sources: Stock Purchase and Asset Transfer Agreement (Cigna Corp), Stock Purchase and Asset Transfer Agreement (Prudential Financial Inc)
Post-Closing Adjustment. (a) No later than forty-five (45) Within 90 days following the Closing Date, Aspen Seller shall prepare and deliver to IDB Buyer a consolidated balance sheet of 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, Seller Retained Subsidiaries as of the Closing (giving effect to the Estimated Available Cash Allocation) (the "Seller Closing Balance Sheet"), which shall be prepared in conformity with GAAP applied on a basis consistent with the preparation of, and using the same accounting methods, policies, practices, procedures and estimation methods as those used in the preparation of the balance sheet for the fiscal year ended December 31, 2013, included in the GFI Financial Statements, and which shall include a calculation of Available Cash at the Seller Retained Subsidiaries and Working Capital derived from the items and amounts on such balance sheet. Within 90 days following the Closing Date, IDB Buyer shall prepare and deliver to Seller a consolidated balance sheet of IDB Buyer and the IDB Subsidiaries as of the Closing (giving effect to the Estimated Available Cash Allocation) (the "IDB Buyer Closing Balance Sheet" and together with all accountingthe Seller Closing Balance Sheet, actuarial the "Closing Balance Sheets"), which shall be prepared in conformity with GAAP applied on a basis consistent with the preparation of, and other data using the same accounting methods, policies, practices, procedures and documentation reasonably necessary estimation methods as those used in the preparation of the balance sheet for the Reinsurer fiscal year ended December 31, 2013, included in the GFI Financial Statements, and which shall include a calculation of Available Cash at the IDB Subsidiaries and Tangible Common Equity, in each case derived from the items and amounts on such balance sheet. The Parties agree that the purpose of preparing the Closing Balance Sheets and determining the Available Cash, Working Capital and Tangible Common Equity and the related adjustment contemplated by this Section 2.7 is to review ▇▇▇▇▇’s proposed final calculations measure the amount of Available Cash, Working Capital and Tangible Common Equity and such amountsprocesses are not intended to permit the introduction of different judgments, accounting methods, policies, principles, practices, procedures, classifications or estimation methodologies for the purpose of preparing the Closing Balance Sheets or determining Available Cash, Working Capital and Tangible Common Equity.
(b) Upon receipt Following delivery of the Final Seller Closing StatementBalance Sheet and the IDB Buyer Closing Balance Sheet and prior to the deadline for delivering a Dispute Notice, each of Seller and IDB Buyer will provide the Reinsurer other Party and its authorized Representatives will be given with reasonable access to all accountingthe books and records, actuarial personnel and related work papers of Seller or IDB Buyer, as applicable, in connection with such other data and documentation related to the preparation Party's review of the Final Seller Closing Statement for Balance Sheet or the purpose of, and to the extent reasonably necessary for, verifying the Final IDB Buyer 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 actuariesBalance Sheet, as applicable. Within forty-five (45) Each of Seller and IDB Buyer shall have 45 days after the later delivery of the Reinsurer’s receipt Seller Closing Balance Sheet or IDB Buyer Closing Balance Sheet in which to provide to the other Party a notice setting forth, in detail, any good faith dispute as to any item or amount reflected in the Seller Closing Balance Sheet (including the calculations of Available Cash and Working Capital set forth therein) or the Final IDB Buyer Closing StatementBalance Sheet (including the calculations of Available Cash and Tangible Common Equity set forth therein), the Reinsurer may deliver written notice (the “True-Up Dispute Notice”) to Aspen of any objectionsas applicable, specifying in reasonable detail any contested amounts and the basis thereforfor such dispute together with such Party's calculation of such item or amount in dispute (the "Dispute Notice", which and each item or amount on the Reinsurer may have to Dispute Notice, a "Disputed Item"). Other than 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) Disputed Items, each Party shall be deemed to be have accepted all items and amounts contained in the Seller Closing Balance Sheet or the IDB Buyer Closing Balance Sheet, as applicable, delivered by the Reinsurer as final, except other Party pursuant to the extent that such amounts are affected by any disputed amountsSection 2.7(a).
(c) If Aspen For 30 days after the later delivery of the Dispute Notice by Seller or IDB Buyer, Seller and the Reinsurer IDB Buyer shall endeavor in good faith to resolve by mutual agreement all Disputed Items. If, for any reason, Seller and IDB Buyer are unable to resolve all disagreements with respect any Disputed Item within such 30 day period, Seller and IDB Buyer shall engage Deloitte & Touche LLP (the "Independent Accountant Arbitrator") to make a determination as to the Final Closing Statement Disputed Items; provided that if the Independent Accountant Arbitrator is unable or unwilling to serve in this capacity, then Seller and IDB Buyer shall within thirty (30) 14 days following ▇▇▇▇▇’s receipt after the end of a True-Up Dispute Notice (the “True-up Dispute Cooling-Off Period”), the items and amounts such 30 day period agree on an alternate independent accounting firm or in dispute default thereof such selection shall be submitted for review made pursuant to the rules of the American Arbitration Association, which accounting firm shall be the "Independent Actuary for final determination within forty-five (45) days after such submissionAccountant Arbitrator" hereunder. The Independent Actuary shall decide all matters relating to the procedures to be followed for resolution of the disputefees, including those relating to the submission and receipt of information and documents; provided, however, that at the request of either Aspen or the Reinsurer, a meeting shall be held at which the Parties may present their views, that both Aspen and the Reinsurer shall have equal access to the Independent Actuary, and that all information and documents which either Party delivers or makes available to the Independent Actuary shall be furnished to the other Party as well. The review by the Independent Actuary shall be limited solely to the disputed items (and any items affected thereby) and amounts in the True-Up Dispute Notice that remain unresolved. Any determination by the Independent Actuary shall not be outside the range defined by the respective amounts in the Final Closing Statement and the True-Up Dispute Notice, and such determination shall be final and binding upon, and non-appealable by, the Parties and their respective successors and assigns for all purposes of this Agreement, and not subject to collateral attack for any reason absent manifest error or fraud. The fees costs and expenses of the Independent Actuary arising from such arbitration shall Accountant Arbitrator will be paid borne by the Parties pro rata based on where the Independent Actuary’s determination of the New Reinsurance Premium falls Seller and IDB Buyer in comparison relative proportion to the amount claimed by ▇▇▇▇▇ in which the Final Closing Statement and aggregate calculation of the amount claimed Disputed Items by each of them differs from the calculation to be made by the Reinsurer in the True-Up Dispute NoticeIndependent Accountant Arbitrator.
(d) If there is a referral to the New Reinsurance Premium as finally determined pursuant Independent Accountant Arbitrator, each of Seller and IDB Buyer agrees, if requested by the Independent Accountant Arbitrator, to this Section 3.3 is (i) greater execute a reasonable engagement letter and shall submit to the Independent Accountant Arbitrator not later than the Estimated New Reinsurance Premium (such differenceten Business Days after its appointment, a “Positive Adjustment Amount”)written statement summarizing its position on the Disputed Items, then Aspen together with such supporting documentation as it deems necessary. The Independent Accountant Arbitrator shall pay act as an arbitrator to determine, based solely on the materials submitted and presentations by Seller and IDB Buyer, and not by independent review, only the Disputed Items that have not been settled by negotiation, and its determination with respect to each Disputed Item shall be an amount within the range established with respect to such Disputed Item by Seller's or IDB Buyer's calculation in the Seller Closing Balance Sheet or IDB Buyer Closing Balance Sheet, as applicable, on the one hand, and the applicable Dispute Notice, on the other hand. Seller and IDB Buyer shall instruct the Independent Accountant Arbitrator to render its decision within 30 days of its appointment or as soon thereafter as is reasonably practicable. The decision/award of the Independent Accountant Arbitrator as to the Reinsurer Disputed Items shall be final and binding on, and shall not be subject to appeal by, Seller and IDB Buyer or any other Person, and may be entered and enforced as provided in Section 9.9.
(or to e) No later than 30 days following the applicable Trust Accounts, to later of the extent that the Reinsurer’s Posted Collateral is less than the Initial Required Collateral Amount), by wire transfer of immediately available funds to one or more accounts designated in writing by the Reinsurer, the Positive Adjustment Amount within five (5) Business Days following final determination of the New Reinsurance Premium pursuant Seller Closing Balance Sheet (and the calculations of Available Cash and Working Capital set forth therein) or the IDB Buyer Closing Balance Sheet (and the calculations of Available Cash and Tangible Common Equity set forth therein) (such items being "final" after giving effect to this Section 3.3 the items and amounts accepted or deemed to have been accepted by either Seller or IDB Buyer, Disputed Items settled by negotiation and Disputed Items finally determined by the Independent Accountant Arbitrator; such final calculations being the "Final Available Cash Allocation"), the following adjustments shall be effected:
(i) if any of the amounts that were transferred or retained by the IDB Subsidiaries at Closing as provided in the Estimated Available Cash Allocation were in excess of the corresponding amounts that should have been transferred or retained by the IDB Subsidiaries as provided in the Final Available Cash Allocation, then IDB Buyer shall (or shall cause the applicable IDB Subsidiaries to) pay the amount of such excess(es) to Seller.
(ii) less than if any of the amounts that were transferred or retained by the Seller Retained Subsidiaries as provided in the Estimated New Reinsurance Premium Available Cash Allocation were in excess of the corresponding amounts that should have been transferred or retained by the Seller Retained Subsidiaries as provided in the Final Available Cash Allocation, then Seller shall (or shall cause the absolute value applicable Seller Retained Subsidiaries to) pay the amount of such differenceexcess(es) to IDB Buyer. Notwithstanding the foregoing and for the avoidance of doubt, a “Negative Adjustment Amount”), then Aspen in no event shall reduce Seller be required to pay an amount in excess of the Funds Withheld Account Balance by the Negative Adjustment Excess Cash Amount.
Appears in 2 contracts
Sources: Purchase Agreement (Jersey Partners Inc.), Purchase Agreement (Jersey Partners Inc.)
Post-Closing Adjustment. (a) No As promptly as practicable, but in no event later than forty-five (45) 10 calendar days following the Closing Date, Aspen Company shall prepare and deliver to the Reinsurer Parent, a detailed statement in certificate, certified as true and correct as of such date by an authorized representative of Company, to include an unaudited balance sheet of the same form Company as of 12:01 a.m. (PT) on the Closing Statement Date (the “Final Closing Balance Sheet”), together with a statement (the “Company Closing Statement”) setting forth Aspenin reasonable detail Company’s good faith calculation of each of (i) the New Reinsurance Premium (including the New Reinsurance Premium Accrued InterestClosing Cash, the Roll-forward Amount and the ULAE Reimbursement Amount) and (ii) Closing Indebtedness, (iii) Transaction Expenses, and (iv) the Initial Required Collateral AmountNet Aggregate Consideration and attaching all relevant backup materials and schedules; together with a reasonably detailed computation, and reasonable supporting materials, in each case, as using the same methodologies and accounting practices and principles applied on a consistent basis by the Company prior to Closing. (b) From and after the delivery of the Closing Date, together with all accounting, actuarial Balance Sheet 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 Company Closing Statement, Company shall provide the Reinsurer Parent and any accountants or advisors retained by Parent with reasonable access during normal business hours to the books and records and personnel of the Surviving Company, including relevant work papers and back-up materials and such other information and materials as reasonably requested by Parent, solely for the purposes of: (A) enabling the Parent and its authorized Representatives will be given reasonable access accountants and advisors to all accounting, actuarial calculate and other data to review Company’s calculations as reflected Closing Balance Sheet and documentation Company Closing Statement; and (B) identifying any dispute related to the preparation of calculations set forth in the Final Closing Statement for the purpose of, and to the extent reasonably necessary for, verifying the Final Company Closing Statement; provided. (c) If the Parent disputes the calculation of Closing Cash, that no independent accountants Closing Indebtedness, Transaction Expenses, or independent actuaries of Aspen shall be required to make any work papers available to the Reinsurer unless Net Aggregate Consideration set forth in 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 Company Closing Statement, the Reinsurer may then Parentshall deliver a written notice (the an “True-Up Adjustment Dispute Notice”) to Aspen of any objectionsCompany, specifying in reasonable detail any contested amounts Representative and the basis therefor, which Escrow Agent during 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 day period commencing upon receipt by Parent of a True-Up Dispute Notice the Closing Balance Sheet and the Company Closing Statement (the “True-up Dispute Cooling-Off Review Period”). The Adjustment Dispute Notice shall set forth, in reasonable detail, the items and amounts in basis for the dispute shall be submitted for review to the Independent Actuary for final determination within forty-five (45) days after such submission. The Independent Actuary shall decide all matters relating to the procedures to be followed for resolution of the dispute, including those relating to the submission and receipt of information and documents; provided, however, that at the request of either Aspen or the Reinsurer, a meeting shall be held at which the Parties may present their views, that both Aspen and the Reinsurer shall have equal access to the Independent Actuary, and that all information and documents which either Party delivers or makes available to the Independent Actuary shall be furnished to the other Party as well. The review by the Independent Actuary shall be limited solely to the disputed items (and any items affected thereby) and amounts in the True-Up Dispute Notice that remain unresolved. Any determination by the Independent Actuary shall not be outside the range defined by the respective amounts in the Final Closing Statement and the True-Up Dispute Notice, and such determination shall be final and binding upon, and non-appealable by, the Parties and their respective successors and assigns for all purposes of this Agreement, and not subject to collateral attack for any reason absent manifest error or fraud. The fees and expenses of the Independent Actuary arising from such arbitration shall be paid by the Parties pro rata based on where the Independent Actuary’s determination of the New Reinsurance Premium falls in comparison to the amount claimed by ▇▇▇▇▇ in the Final Closing Statement and the amount claimed by the Reinsurer in the True-Up Dispute Notice.
(d) If the New Reinsurance Premium as finally determined pursuant to this Section 3.3 is (i) greater than the Estimated New Reinsurance Premium (such difference, a “Positive Adjustment Amount”), then Aspen shall pay to the Reinsurer (or to the applicable Trust Accounts, to the extent that the Reinsurer’s Posted Collateral is less than the Initial Required Collateral Amount), by wire transfer of immediately available funds to one or more accounts designated in writing by the Reinsurer, the Positive Adjustment Amount within five (5) Business Days following final determination of the New Reinsurance Premium pursuant to this Section 3.3 or (ii) less than the Estimated New Reinsurance Premium (the absolute value of such difference, a “Negative Adjustment Amount”), then Aspen shall reduce the Funds Withheld Account Balance by the Negative Adjustment Amountcalculation and attaching all relevant backup materials and schedules.
Appears in 2 contracts
Sources: Merger Agreement (Oddity Tech LTD), Merger Agreement (Oddity Tech LTD)
Post-Closing Adjustment. (a) No As soon as practicable, but in no event later than forty-five (45) 90 days following the Closing Date, Aspen the Seller Parties shall prepare and deliver to the Reinsurer Company a detailed statement in of Closing Date Value, which statement shall be audited and certified by Deloitte & Touche LLP. Such statement shall exclude any adjustments related to fresh-start accounting relating to Advantica's bankruptcy. The costs and expenses of such audit shall be borne equally between 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 Company and the ULAE Reimbursement Amount) and (ii) Seller Parties. The statement of Closing Date Value shall be set forth in reasonable detail to permit 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 amountsrequired by this Section 2.3.
(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 During the preparation of the Final statement of Closing Statement for Date Value as provided in Section 2.3(a) and the purpose ofperiod of any review or dispute as provided in this Section 2.3, each of the Seller Parties, the Company and Buyer shall cooperate fully with each other and provide the other parties and their respective authorized representatives with full access 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 books and substance reasonably acceptable to such independent accountants or independent actuaries, as applicable. Within forty-five (45) days records 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 Company Group used in the True-Up Dispute Notice (if one is delivered) shall be deemed to be accepted by preparation of such statement, including the Reinsurer as final, except to the extent that such amounts are affected by any disputed amountsprovision on a timely basis of all necessary or useful information.
(c) After receipt of the statement of Closing Date Value from Seller Parties, Buyer shall have 30 days to review the statement of Closing Date Value, together with the workpapers used in the preparation thereof. Unless Buyer delivers written notice to the Seller Parties on or prior to the 30th day after Buyer's receipt from the Seller Parties of the statement of Closing Date Value stating that Buyer has objections to the statement of Closing Date Value and describing any such objections in reasonable detail, Buyer shall be deemed to have accepted and agreed to the statement of Closing Date Value. If Aspen on or prior to the 30th day after Buyer's receipt from the Seller Parties of the statement of Closing Date Value, Buyer notifies the Seller Parties of its objections to the statement of Closing Date Value, Buyer and Seller Parties shall, within 20 days (or such longer period as the Reinsurer are unable parties may agree) following such notice (the "Resolution Period"), attempt to resolve all disagreements with respect their differences, and any resolution by them as 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 any disputed amounts in dispute shall be submitted for review to the Independent Actuary for final determination within forty-five (45) days after such submission. The Independent Actuary shall decide all matters relating to the procedures to be followed for resolution of the disputefinal, including those relating to the submission binding and receipt of information and documents; provided, however, that at the request of either Aspen or the Reinsurer, a meeting shall be held at which the Parties may present their views, that both Aspen and the Reinsurer shall have equal access to the Independent Actuary, and that all information and documents which either Party delivers or makes available to the Independent Actuary shall be furnished to the other Party as well. The review by the Independent Actuary shall be limited solely to the disputed items (and any items affected thereby) and amounts in the True-Up Dispute Notice that remain unresolved. Any determination by the Independent Actuary shall not be outside the range defined by the respective amounts in the Final Closing Statement and the True-Up Dispute Notice, and such determination shall be final and binding upon, and non-appealable by, the Parties and their respective successors and assigns for all purposes of this Agreement, and not subject to collateral attack for any reason absent manifest error or fraud. The fees and expenses of the Independent Actuary arising from such arbitration shall be paid by the Parties pro rata based on where the Independent Actuary’s determination of the New Reinsurance Premium falls in comparison to the amount claimed by ▇▇▇▇▇ in the Final Closing Statement and the amount claimed by the Reinsurer in the True-Up Dispute Noticeconclusive.
(d) If Any amounts remaining in dispute at the New Reinsurance Premium conclusion of the Resolution Period ("Unresolved Changes") shall be submitted to a nationally recognized firm of independent accountants independent of, and reasonably satisfactory to, Seller Parties, Buyer and their respective Affiliates (such firm being referred to as finally determined pursuant the "CPA Firm"), within 10 days after the expiration of the Resolution Period. The parties acknowledge that Ernst & Young is a mutually acceptable firm to be designated as the CPA Firm, subject to verification of its independence. Each party agrees to execute, if requested by the CPA Firm, an engagement letter containing reasonable terms. All fees and expenses relating to the work, if any, to be performed by the CPA Firm shall be borne pro rata by Seller Parties and Buyer in proportion to the allocation of the dollar amount of the Unresolved Changes between Buyer and Seller Parties made by the CPA Firm, such that the prevailing party shall pay the lesser proportion of the fees and expenses. The CPA Firm shall act as an arbitrator to determine, based on the provisions of this Section 3.3 is 2.3, only the Unresolved Changes and the determination of each amount in the Unresolved Changes shall made in accordance with GAAP and in any event shall be no less than the lesser of the amount claimed by either Buyer or Seller Parties and shall be no greater than the greater amount claimed by either Buyer or Seller Parties. The CPA Firm's determination of the Unresolved Changes shall be made within 30 days of the submission of the Unresolved Changes thereto, shall be set forth in a written statement delivered to Seller Parties and Buyer and shall be final, binding and conclusive on the parties for all purposes. Notwithstanding any provision herein to the contrary, no Unresolved Change shall result in an adjustment to the Purchase Price or the Closing Date Value unless (i) greater than in the Estimated New Reinsurance Premium case of an asset (or contra-liability) line item (as such difference, a “Positive Adjustment Amount”line items are set forth on Exhibit A attached hereto), then Aspen the amount determined by the CPA Firm is lower than 50% of the corresponding amount reflected in the statement of Closing Date Value prepared by Seller Parties which is the subject of such Unresolved Change, in which event the amount of the adjustment shall pay be the difference between the amount of such asset (or contra-liability) line item determined by the CPA Firm and the amount reflected in the statement of Closing Date Value prepared by Seller Parties, and (ii) in the case of a liability (or contra-asset) line item (as such line items are set forth on Exhibit A attached hereto), the amount determined by the CPA Firm is more than 150% of the corresponding amount reflected in the statement of Closing Date Value prepared by Seller Parties which is the subject of such Unresolved Change, in which event the amount of the adjustment shall be the difference between the amount of such liability (or contra-asset) line item determined by the CPA Firm and the amount reflected in the statement of Closing Date Value prepare by Seller Parties.
(e) In the event that Buyer and Seller Parties agree to the Reinsurer (or to the applicable Trust Accountsstatement of Closing Date Value, to the extent that the Reinsurer’s Posted Collateral is less than the Initial Required Collateral Amount), by wire transfer of immediately available funds to one or more accounts designated in writing by the Reinsurer, the Positive Adjustment Amount then within five (5) Business Days following final determination such agreement (i) Seller Parties shall pay to Buyer the amount, if any, by which the Closing Date Value exceeds the Base Value, or (ii) Buyer shall pay to Seller Parties the amount, if any, by which the Base Value exceeds the Closing Date Value (each, a "Post-Closing Adjustment"). In the event that there are Unresolved Changes at the end of the New Reinsurance Premium Resolution Period, then (1) if Buyer and Seller Parties agree that a Post-Closing Adjustment is owed to one Party regardless of the ultimate resolution of any Unresolved Changes, then the minimum amount which Buyer and Seller Parties agree is owed to such party shall be paid within five (5) Business Days after the end of the Resolution Period and any additional amounts owing to such party with respect to the Unresolved Changes shall be paid within five (5) Business Days after resolution thereof by the CPA Firm, or (2) in all other cases, any and all payments shall be made within five (5) Business Days after resolution of the Unresolved Changes by the CPA Firm.
(f) Any payments made pursuant to this Section 3.3 2.3 shall be accompanied by interest at the Applicable Rate from the Closing Date up to and including the date of payment.
(g) Any payments made in respect of the Post-Closing Adjustment or (ii) less than Unresolved Changes shall be deemed to be adjustments to the Estimated New Reinsurance Premium (the absolute value of such difference, a “Negative Adjustment Amount”), then Aspen shall reduce the Funds Withheld Account Balance by the Negative Adjustment AmountPurchase Price for all Tax purposes.
Appears in 2 contracts
Sources: Stock Purchase Agreement (Advantica Restaurant Group Inc), Stock Purchase Agreement (Cke Restaurants Inc)
Post-Closing Adjustment. (a) No later than forty-five (45) Within 75 days following after the Closing Date, Aspen shall Purchaser may prepare and deliver to the Reinsurer Stockholder Representative a detailed written statement in the same form as the Closing Statement (the “Final Post-Closing Statement”) setting forth AspenParent’s good faith calculation of (i) the New Reinsurance Premium (including actual Net Working Capital as of the New Reinsurance Premium Accrued InterestClosing, the Roll-forward Amount and the ULAE Reimbursement Amount) and (ii) the Initial Required Collateral Amountestimated amount of all cash of the Company held in Company bank accounts as of the Closing, indicating the bank accounts in which such cash is (or was) held, (iii) the actual amount of all Transaction Costs of the Company, in the aggregate and itemized to show the amount paid or payable to each case, Person that is (or was) owed a portion of such Transaction Costs; (iv) the actual amount of all outstanding Debt of the Company as of the Closing, in the aggregate and with respect to each Person entitled to payment of a portion of such Debt (with reference to the Contract pursuant to which such Debt is owed) and (v) the Merger Consideration resulting from the foregoing. Unless within the 30-day period following Parent’s delivery of the Post-Closing Statement, the Stockholder Representative has tendered a written notice to Parent (the “Dispute Notice”) to the effect that the items contained in the Post-Closing Statement are erroneous or have not been prepared in accordance with this Section 1.9(a), setting forth in reasonable detail any such objection (each such item, an “Item of Dispute”), the Post-Closing Statement, including the Merger Consideration and each of the other items set forth therein, shall be conclusive and binding upon the Parent and the Stockholder Representative (on behalf of the Company Escrow Parties). If Parent does not elect to prepare and deliver a Closing Adjustment Statement within 75 days after the Closing Date, together with all accounting, actuarial then the Estimated Merger Consideration as set forth in the Estimated Closing Statement shall be the final Merger Consideration and other data shall be conclusive and documentation reasonably necessary for binding upon the Reinsurer to review ▇▇▇▇▇’s proposed final calculations of such amountsParent and the Stockholder Representative.
(b) Upon receipt If the Stockholder Representative delivers a Dispute Notice to Parent within the 30-day period following Parent’s delivery of the Final Post-Closing Statement, Parent and the Reinsurer and its authorized Representatives will be given Stockholder Representative shall use reasonable access to all accounting, actuarial and other data and documentation related efforts (including the provision by Parent to the preparation Stockholder Representative of such relevant information as the Final Stockholder Representative may reasonably request) to resolve their differences concerning the Items of Dispute, and if any Item of Dispute is so resolved, the Post-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 modified if necessary to make reflect such resolution. If 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) Item of Dispute remains unresolved after 30 days of the Reinsurerfrom Parent’s receipt of the Final Closing StatementDispute Notice, Parent and the Reinsurer may deliver written notice Stockholder Representative shall jointly retain a mutually acceptable national or regional accounting firm with no formal relationship with either the Company or the Parent (the “True-Up Dispute NoticeAccounting Firm”) to Aspen resolve such remaining Items of any objections, specifying in reasonable detail any contested amounts Dispute. Parent and the basis thereforStockholder Representative shall request that the Accounting Firm render a determination as to each unresolved Item of Dispute (and as to no other matter) within 30 days of its retention, which and Parent and the Reinsurer may have Stockholder Representative shall cooperate with the Accounting Firm so as to enable it to make such determination as quickly and as accurately as practicable. The Accounting Firm’s determination as to each Item of Dispute submitted to it shall be in writing, shall conform with this Section 1.9(b) and shall be conclusive and binding upon Parent and the Stockholder Representative (on behalf of the Company Escrow Parties). The Post-Closing Statement shall be modified if necessary to reflect such determination. The Accounting Firm shall allocate its costs and expenses to the Final Closing Statement. The failure Non-Prevailing Party or, if there is not a single Non-Prevailing Party, equally to Parent and the Stockholder Representative (on behalf of the Reinsurer to deliver such True-Up Dispute Notice within the prescribed time period will constitute the Reinsurer’s acceptance as final Company Escrow Parties). For purposes of the Final Closing Statement preceding sentence, the “Non-Prevailing Party” is the party whose proposed calculation of all Items of Dispute submitted to the Accounting Firm, in the aggregate, was further from the calculation of the Items of Dispute determined by the Accounting Firm and differed from that calculation by more than 10% of the Items of Dispute, in the aggregate, 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 amountsAccounting Firm.
(c) If Aspen and At such time as the Reinsurer are unable to resolve all disagreements Merger Consideration shall become final in accordance with respect this Section 1.9, the Estimated Merger Consideration shall be compared to the Final Closing Statement final Merger Consideration. If the final Merger Consideration is greater than the Estimated Merger Consideration, then within thirty two (302) 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) business days after such submission. The Independent Actuary shall decide all matters relating to the procedures to be followed for resolution of the dispute, including those relating to the submission and receipt of information and documents; provided, however, that at the request of either Aspen or the Reinsurer, a meeting shall be held at which the Parties may present their views, that both Aspen and the Reinsurer shall have equal access to the Independent Actuary, and that all information and documents which either Party delivers or makes available to the Independent Actuary shall be furnished to the other Party as well. The review by the Independent Actuary shall be limited solely to the disputed items (and any items affected thereby) and amounts in the True-Up Dispute Notice that remain unresolved. Any determination by the Independent Actuary shall not be outside the range defined by the respective amounts in the Final Closing Statement and the True-Up Dispute Notice, and such determination shall be final and binding upon, and non-appealable by, the Parties and their respective successors and assigns for all purposes of this Agreement, and not subject to collateral attack for any reason absent manifest error or fraud. The fees and expenses of the Independent Actuary arising from such arbitration shall be paid by the Parties pro rata based on where the Independent Actuary’s determination of the New Reinsurance Premium falls in comparison final Merger Consideration, Parent shall cause to be deposited the amount of the difference with the Exchange Agent to be immediately distributed to the Company Escrow Parties in accordance with each Company Escrow Party’s Pro Rata Share. If the final Merger Consideration is less than the Estimated Merger Consideration, then within two (2) business days after the determination of the final Merger Consideration, the Stockholder Representative and Parent shall cause the Escrow Agent to pay to Parent an amount claimed by ▇▇▇▇▇ in equal to such difference from the Final Closing Statement Escrow Account. If there is a difference between the finally determined Merger Consideration and the amount claimed by Estimated Merger Consideration then, within three (3) days of finalizing the Reinsurer in the True-Up Dispute Notice.
(d) If the New Reinsurance Premium as finally determined Merger Consideration pursuant to this Section 3.3 is 1.9, the Stockholder Representative shall, in consultation with Purchaser, cause the Merger Consideration Spreadsheet to be updated as a result of such difference (i) greater than substituting the final Merger Consideration for the Estimated New Reinsurance Premium (such difference, a “Positive Adjustment Amount”Merger Consideration as applicable), then Aspen shall pay to the Reinsurer (or to the applicable Trust Accounts, to the extent that the Reinsurer’s Posted Collateral is less than the Initial Required Collateral Amount), by wire transfer of immediately available funds to one or more accounts designated in writing by the Reinsurer, the Positive Adjustment Amount within five (5) Business Days following final determination of the New Reinsurance Premium pursuant to this Section 3.3 or (ii) less than the Estimated New Reinsurance Premium (the absolute value of such difference, a “Negative Adjustment Amount”), then Aspen shall reduce the Funds Withheld Account Balance by the Negative Adjustment Amount.
Appears in 2 contracts
Sources: Agreement and Plan of Merger, Merger Agreement (Zillow Inc)
Post-Closing Adjustment. (a) No later As promptly as possible, but in any event within ninety (90) days after the Closing Date, Parent shall deliver to the Securityholder Representative a written statement (the “Post-Closing Statement”) setting forth Parent’s (i) good faith calculation of (A) Cash as of the Benchmark Time (“Preliminary Cash”), (B) Indebtedness as of the Benchmark Time (“Preliminary Indebtedness”), (C) Net Working Capital as of the Benchmark Time (together with the components thereof, “Preliminary Net Working Capital”), and (D) Transaction Expenses (“Preliminary Transaction Expenses”) and (ii) resulting calculation of the Merger Consideration (such amount, the “Preliminary Merger Consideration”), together with reasonable supporting detail and back-up for such calculations. The Post-Closing Statement shall be accompanied by a certificate of Parent’s Chief Financial Officer certifying that the Post-Closing Statement has been prepared in accordance with this Agreement, including the Accounting Principles, as applicable. Parent may not amend, supplement or otherwise modify the Post-Closing Statement at any time following delivery of such statement to the Securityholder Representative in accordance with this Section 2.09(a).
(b) The parties hereto acknowledge that the Estimated Closing Statement delivered by the Company to Parent pursuant to Section 2.08 will be prepared and delivered prior to the Closing Date and, therefore, the amounts set forth therein will be estimates and may be different than the actual amount of such items as of the Benchmark Time. Accordingly, Section 2.09 sets forth the process by which the amounts set forth in the Estimated Closing Statement may be adjusted solely to ensure that any such amount set forth in the Estimated Closing Statement reflects an adjustment only between the estimate thereof and the actual amount thereof. Accordingly, none of the Securityholder Representative, Parent or any Settlement Accountant shall give effect to or consider any event or circumstance occurring after the Benchmark Time (subject to the definition of Income Tax Liability Amount), and each component of the Estimated Closing Statement shall be finally and solely determined consistent with the applicable definitions of such terms set forth herein and calculated in accordance with the Accounting Principles, as applicable (i.e., no accounting methods, policies, principles, practices, procedures, classifications, judgments or estimation methodologies inconsistent with the Accounting Principles may be used by Parent (or if applicable, the Settlement Accountant) in calculating or determining any such terms as the sole purpose of the adjustment contemplated by Section 2.09 is to measure the difference, if any, between the estimate of an amount of an item set forth in the Estimated Closing Statement and the actual amount of such item as of the Benchmark Time).
(c) Upon receipt of the Post-Closing Statement, the Securityholder Representative shall have 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 “Review Period”) to review such Post-Closing Statement and related computations of Preliminary Cash, Preliminary Indebtedness, Preliminary Net Working Capital, Preliminary Transaction Expenses, and the Preliminary Merger Consideration. Following the Closing through the date that the Final Closing Statement”) setting forth Aspen’s good faith calculation Statement becomes final, binding and non-appealable in accordance with Section 2.09(e), the Securityholder Representative, its Affiliates, its and their respective representatives and any accountants, advisors or other representatives retained by the Securityholder Representative shall be permitted to access and review the books, records and work papers of (i) the New Reinsurance Premium Surviving Corporation and Parent that are reasonably related to the calculations of Cash, Indebtedness, Net Working Capital and Transaction Expenses, and Parent shall, and shall cause its Affiliates (including the New Reinsurance Premium Accrued Interest, the Roll-forward Amount Surviving Corporation and the ULAE Reimbursement Amountits Subsidiaries) and (ii) its and their respective representatives, accountants, advisors and other representatives to, reasonably cooperate with and assist the Initial Required Collateral AmountSecurityholder Representative, its Affiliates, its and their representatives and any accountants, advisors and other representatives retained by the Securityholder Representative in connection with such review, including by providing reasonable access to such books, records and work papers and making available personnel to the extent requested, in each case, as of upon reasonable notice and during normal business hours; provided, that in the event that Parent, the Surviving Corporation or their respective Affiliates fail to provide such cooperation, assistance or access, the Review Period shall be extended by one (1) day for each day Parent, the Surviving Corporation or their respective Affiliates fail to provide such cooperation, assistance or access. Parent agrees that, following the Closing Date, together with all accounting, actuarial and other data and documentation reasonably necessary for through the Reinsurer to review ▇▇▇▇▇’s proposed final calculations of such amounts.
(b) Upon receipt of date that the Final Closing StatementStatement becomes final, binding and non-appealable in accordance with Section 2.09(e), it will not take, or permit to be taken, any actions with respect to any accounting books, records, policies or procedures on which the Reinsurer and its authorized Representatives will Audited Financial Statements or the Post-Closing Statement are based, or upon which the Final Closing Statement is to be given reasonable access to all accountingbased, actuarial and other data and documentation related to that would impede or delay the determination of the amount of Cash, Indebtedness, Net Working Capital, Transaction Expenses or the preparation of any Statement of Objections or the Final Closing Statement in the manner and utilizing the methods provided by this Agreement, including the Accounting Principles. If the Securityholder Representative has accepted the Post-Closing Statement in writing or has not given written notice to Parent setting forth any objection of the Securityholder Representative to such Post-Closing Statement setting forth the reasons for any difference in calculation of the Post-Closing Statement and disputed components thereof in reasonable detail (such notice, the “Statement of Objections”) prior to the expiration of the Review Period, then such Post-Closing Statement shall be final, binding and non-appealable upon the parties, and shall be deemed the Final Closing Statement for purposes of Section 2.09(e). The Statement of Objections shall be based only on (x) mathematical or clerical errors or (y) if the purpose of, and to calculations of the extent amounts in the Post-Closing Statement were not determined in accordance with the Accounting Principles. The Statement of Objections shall specify what the Securityholder Representative reasonably necessary for, verifying believes is the correct amount for each such disputed item. Any component of the calculation set forth in the Post-Closing Statement that is not the subject of a timely delivered Statement of Objections by the Securityholder Representative shall be deemed the Final Closing Statement; Statement for purposes of Section 2.09(e).
(d) In the event that the Securityholder Representative delivers a Statement of Objections to Parent prior to the expiration of the Review Period, the Securityholder Representative and Parent shall negotiate in good faith to resolve any such objection on Cash, Indebtedness, Net Working Capital or Transaction Expenses, as the case may be, within thirty (30) days following the receipt by Parent of the Statement of Objections (the “Consultation Period”), and all offers of compromise, unless otherwise agreed by Parent and the Securityholder Representative, be governed by Rule 408 of the Federal Rules of Evidence (and any applicable similar state rules). If the Securityholder Representative and Parent reach an agreement in writing as to any such objections within the Consultation Period, the amounts so agreed upon shall be final, binding and non-appealable upon the parties and such agreement shall be deemed to be included in the Final Closing Statement for purposes of Section 2.09(e). If the Securityholder Representative and Parent are unable to reach an agreement in writing as to any such objections within the Consultation Period, then either the Securityholder Representative or Parent may submit such matter to KPMG US LLP, or if KPMG US LLP is unable or unwilling to serve in such capacity, BDO USA, LLP (the “Settlement Accountant”) (provided, that no independent accountants or independent actuaries if the Securityholder Representative and Parent cannot agree on an accountant within ten (10) Business Days after the expiration of Aspen the Consultation Period, then the American Arbitration Association shall appoint the Settlement Accountant, who shall be required deemed acceptable to the Securityholder Representative and Parent), for resolution of those items on the Statement of Objections that remain in dispute (the “Disputed Items”). If requested by the Settlement Accountant, each of the Securityholder Representative and Parent agrees that it will enter into a customary engagement letter with the Settlement Accountant and provide customary indemnities in favor of the Settlement Accountant. The Settlement Accountant shall act as an expert and not as an arbitrator, and shall only consider the Disputed Items. If any Disputed Item is referred to the Settlement Accountant, the Securityholder Representative, on the one hand, and Parent, on the other hand, shall prepare separate written reports of each such Disputed Item and deliver such reports to the Settlement Accountant, and each other within twenty (20) Business Days after the date the Settlement Accountant is retained. Thereafter, each of the Securityholder Representative and Parent shall have fifteen (15) Business Days to deliver to the Settlement Accountant, and each other one written rebuttal thereto (if applicable). The Settlement Accountant may not assign a value to any Disputed Item greater than the greatest value for such Disputed Item claimed by either Parent or the Securityholder Representative in the Post-Closing Statement and Statement of Objections, respectively, or less than the smallest value for such Disputed Item claimed by either Parent or the Securityholder Representative in the Post-Closing Statement and Statement of Objections, respectively. The Securityholder Representative and Parent shall use their respective commercially reasonable efforts to cause the Settlement Accountant to resolve all disagreements as soon as practicable and in any event within thirty (30) days after the later of the submission of the (i) written reports and (ii) written rebuttals, if any. The Settlement Accountant’s review and determination shall be (A) limited only to the reports, rebuttals and materials concerning the Disputed Items prepared and submitted to the Settlement Accountant by the Securityholder Representative and Parent (i.e., not on the basis of an independent review), (B) based solely on such reports, rebuttals and materials submitted by the Securityholder Representative and Parent and the basis for the Securityholder Representative’s and Parent’s respective positions and (C) in accordance with the terms and procedures set forth in this Agreement, including the Accounting Principles and the definitions of Cash, Indebtedness, Net Working Capital and Transaction Expenses contained herein. During the review by the Settlement Accountant, each of the Securityholder Representative and Parent shall, and shall cause their respective Subsidiaries (including, in the case of Parent, the Company and its Subsidiaries) and their respective accountants, advisors and other representatives to, each make available to the Settlement Accountant interviews with such personnel, and such information, books, records and work papers as may be reasonably requested by the Settlement Accountant to fulfill its obligations under this Section 2.09(d); provided that the accountants of the Securityholder Representative or Parent shall not be obliged to make any work papers available to the Reinsurer unless the Reinsurer Settlement Accountant except in accordance with such accountants’ normal disclosure procedures and then only after such Settlement Accountant has signed a customary agreement relating to such access to work papers in form and substance reasonably acceptable papers. A copy of all materials submitted to such independent accountants the Settlement Accountant shall be promptly provided by the Securityholder Representative or independent actuariesParent, as applicable. Within forty-five (45) days , to the other party in the dispute; provided that the accountants of the Reinsurer’s receipt Securityholder Representative or Parent, as applicable, shall not be obliged to make any work papers available to the other party except in accordance with such accountants’ normal disclosure procedures and then only after such other party has signed a customary agreement relating to such access to work papers. Neither the Securityholder Representative nor Parent may disclose to the Settlement Accountant, and the Settlement Accountant may not consider for any purpose, any settlement discussions or settlement offer(s) made by or on behalf of either the Securityholder Representative or Parent unless otherwise agreed by the Securityholder Representative and Parent. None of the Final Closing StatementSecurityholder Representative, Parent or any of their respective Affiliates shall have any ex parte communications or meetings with the Reinsurer may deliver Settlement Accountant regarding the subject matter hereof without the other party’s prior written notice (the “True-Up Dispute Notice”) to Aspen of any objectionsconsent. The Settlement Accountant shall have exclusive jurisdiction over, specifying in reasonable detail any contested amounts and the basis therefor, which the Reinsurer may have resort 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 Settlement Accountant as final of the Final Closing Statement as determined by ▇▇▇▇▇. Any amounts not disputed provided in the True-Up Dispute Notice (if one is deliveredthis Section 2.09(d) shall be deemed to be accepted by the Reinsurer as finalonly recourse and remedy of the parties against one another with respect to, except any disputes arising out of or relating to the extent calculation of, and any adjustments to, the Merger Consideration; provided that upon the determination of the Settlement Accountant, such amounts are affected by determination may be entered and enforced in any disputed amounts.
(c) If Aspen and the Reinsurer are unable to resolve all disagreements court of competent jurisdiction in accordance with Section 10.12. The final determination with respect to all Disputed Items shall be set forth in a written statement by the Final Closing Statement within thirty (30) days following ▇▇▇▇▇’s receipt of a True-Up Dispute Notice (Settlement Accountant delivered to the “True-up Dispute Cooling-Off Period”)Securityholder Representative and Parent and, absent Fraud, mathematical error promptly corrected by the Settlement Accountant or manifest error, the items and amounts in dispute shall be submitted for review to the Independent Actuary for final determination within forty-five (45) days after such submission. The Independent Actuary shall decide all matters relating to the procedures to be followed for resolution of the dispute, including those relating to dispute by the submission and receipt of information and documents; provided, however, that at the request of either Aspen or the Reinsurer, a meeting Settlement Accountant shall be held at which the Parties may present their viewsfinal, that both Aspen and the Reinsurer shall have equal access to the Independent Actuary, and that all information and documents which either Party delivers or makes available to the Independent Actuary shall be furnished to the other Party as well. The review by the Independent Actuary shall be limited solely to the disputed items (and any items affected thereby) and amounts in the True-Up Dispute Notice that remain unresolved. Any determination by the Independent Actuary shall not be outside the range defined by the respective amounts in the Final Closing Statement and the True-Up Dispute Notice, and such determination shall be final and binding upon, and non-appealable by, on the Parties and their respective successors and assigns for all purposes of this Agreement, and not subject to collateral attack for any reason absent manifest error or fraudparties. The fees costs and expenses of the Independent Actuary arising from such arbitration Settlement Accountant shall be paid borne by the Parties pro rata based on where Securityholder Representative (solely from the Independent ActuarySecurityholder Representative Reserve Fund Amount) and Parent in proportion to the difference between the Settlement Accountant’s determination of the New Reinsurance Premium falls in comparison to the amount claimed by ▇▇▇▇▇ in the Final Closing Statement Merger Consideration and the amount determination of the Merger Consideration claimed by the Reinsurer Securityholder Representative and Parent. For example, if Parent claims that the Merger Consideration is, in the True-Up Dispute Notice.
(d) If the New Reinsurance Premium as finally determined pursuant to this Section 3.3 is (i) aggregate, $1,000 greater than the Estimated New Reinsurance Premium (such difference, a “Positive Adjustment Amount”)amount determined by the Securityholder Representative and if the Settlement Accountant ultimately resolves the dispute by awarding to Parent an aggregate of $300 of the $1,000 contested, then Aspen shall pay the costs and expenses of the Settlement Accountant will be allocated thirty percent (30%) to the Reinsurer Securityholder Representative and seventy percent (or 70%) to the applicable Trust Accounts, to the extent that the Reinsurer’s Posted Collateral is less than the Initial Required Collateral Amount), by wire transfer of immediately available funds to one or more accounts designated in writing by the Reinsurer, the Positive Adjustment Amount within five (5) Business Days following final determination of the New Reinsurance Premium pursuant to this Section 3.3 or (ii) less than the Estimated New Reinsurance Premium (the absolute value of such difference, a “Negative Adjustment Amount”), then Aspen shall reduce the Funds Withheld Account Balance by the Negative Adjustment AmountParent.
Appears in 1 contract
Post-Closing Adjustment. (a) No later than forty-five Within ninety (4590) days following after the Closing DateClosing, Aspen (i) Acquiror shall deliver to provide the Reinsurer Contributor with a detailed statement in the same form as the Closing Statement (the “Acquiror Final Closing Statement”) setting that sets forth AspenAcquiror’s good faith calculation of (i) Acquiror Leakage, Acquiror Unpaid Transaction Expenses, Company Leakage and Company Unpaid Transaction Expenses, along with reasonably detailed supporting information to evidence the New Reinsurance Premium (including calculation of such amount and, based solely on the New Reinsurance Premium Accrued Interestforegoing calculations, the Roll-forward Amount and Contribution Consideration (the ULAE Reimbursement Amount“Final Contribution Consideration”) and (ii) the Initial Required Collateral AmountContributor shall provide Acquiror with a statement (the “Contributor Final Closing Statement”) that sets forth Contributor’s good faith calculation of Acquiror Leakage, in each caseAcquiror Unpaid Transaction Expenses, as of Company Leakage and Company Unpaid Transaction Expenses, along with reasonably detailed supporting information to evidence the Closing Date, together with all accounting, actuarial and other data and documentation reasonably necessary for the Reinsurer to review ▇▇▇▇▇’s proposed final calculations calculation of such amountsamounts and, based solely on the foregoing calculation, the Final Contribution Consideration. The Acquiror Final Closing Statement and Contributor Final Closing Statement shall be prepared in the same format as the Estimated Closing Statements.
(b) Upon receipt Each of the Contributor and the Acquiror shall complete its respective review of the Acquiror Final Closing Statement and Contributor Final Closing Statement, as applicable, within thirty (30) days after delivery thereof and shall notify the Reinsurer and other in writing of its authorized Representatives will be given reasonable access to all accounting, actuarial and other data and documentation related to acceptance or dispute of any amounts reflected on the preparation of the Acquiror Final Closing Statement for the purpose ofor Contributor Final Closing Statement as applicable, and prior to the extent end of such period (such notice, an “Objection Notice”). Any Objection Notice shall specify, with a reasonably necessary fordetailed explanation and supporting information, verifying those items or amounts as to which an objecting Party disagrees (and shall include such objecting Party’s proposed changes to the Acquiror Final Closing Statement; provided, that no independent accountants Statement or independent actuaries of Aspen Contributor Final Closing Statement as applicable). Each Party shall be required deemed to make any work papers available to have agreed with all items and amounts included in 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 Contributor Final Closing Statement or independent actuaries, as applicable. Within forty-five (45) days of the Reinsurer’s receipt of the Acquiror Final Closing Statement, as applicable, that such Party does not dispute. If no Objection Notices are timely received, 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 Acquiror Final Closing Statement as determined by ▇▇▇▇▇. Any amounts not disputed in the True-Up Dispute Notice (if one is delivered) and Contributor Final Closing Statement shall be deemed to be accepted by the Reinsurer as final, except to binding and conclusive on the extent that such amounts are affected by any disputed amountsParties.
(c) If Aspen an Objection Notice is timely received, Acquiror and the Reinsurer Contributor shall negotiate in good faith to resolve any disagreements set forth in any Objection Notice, and Acquiror’s and the Contributor’s mutual resolution with respect to any disputed amounts shall be final, binding and conclusive on the Parties. If the Contributor and Acquiror are unable to resolve all disagreements reach a resolution with respect to the Final Closing Statement any disagreements set forth in an Objection Notice within thirty (30) days following ▇▇▇▇▇’s receipt after delivery of a True-Up Dispute Notice (an Objection Notice, Acquiror and the “True-up Dispute Cooling-Off Period”), Contributor shall submit the items and amounts remaining in dispute shall be submitted for review resolution to the Independent Actuary for final determination Accountants. The Parties shall direct the Independent Accountants to, within forty-five thirty (4530) calendar days after such submission. The Independent Actuary shall decide all matters relating to the procedures to be followed for resolution submission of the dispute, including those relating determine and report to the submission and receipt of information and documents; provided, however, that at the request of either Aspen or the Reinsurer, a meeting shall be held at which the Parties may present their views, that both Aspen and the Reinsurer shall have equal access to the Independent Actuary, and that all information and documents which either Party delivers or makes available to the Independent Actuary shall be furnished to the other Party as well. The review by the Independent Actuary shall be limited solely to the disputed items (and any items affected thereby) and amounts upon such remaining disagreements set forth in the True-Up Dispute Notice that remain unresolved. Any determination by the Independent Actuary shall not be outside the range defined by the respective amounts in the Final Closing Statement and the True-Up Dispute an Objection Notice, and such determination report shall be final final, binding and binding uponconclusive on the Parties. The Independent Accountants shall address only those items in dispute and submitted to the Independent Accountants. The terms of appointment and engagement of the Independent Accountants shall be as agreed upon between the Contributor and Acquiror, and non-appealable by, the Parties Contributor shall bear and their respective successors and assigns for all purposes pay a percentage of this Agreement, and not subject to collateral attack for any reason absent manifest error or fraud. The the fees and expenses of the Independent Actuary arising from Accountants that is equal to the percentage of the aggregate amount of changes to the amount of the Final Contribution Consideration set forth in an Objection Notice that are submitted to the Independent Accountants that are not successful, and Acquiror shall bear and pay a percentage of the fees and expenses of the Independent Accountants that is equal to the percentage of the aggregate amount of changes to the amount of the Final Contribution Consideration set forth in an Objection Notice that are submitted to the Independent Accountants that are successful, in each case as determined by the Independent Accountants. Each of Acquiror and the Contributor shall bear 50% of the initial engagement fee of the Independent Accountant, and such arbitration payment shall be adjusted, if applicable, in connection with the final fees and expenses paid to the Independent Accountant as contemplated in the immediately previous sentence. The Final Closing Statements shall be modified to reflect any changes agreed to by the Parties pro rata based on where or determined by the Independent Actuary’s determination of Accountants in accordance with this Section 2.07(c), and such statements, with the New Reinsurance Premium falls in comparison to amounts set forth therein as so modified shall be final, binding and conclusive on the amount claimed by ▇▇▇▇▇ in the Final Closing Statement and the amount claimed by the Reinsurer in the True-Up Dispute NoticeParties.
(d) If the New Reinsurance Premium Final Contribution Consideration as finally determined pursuant to this in accordance with Section 3.3 is (i2.07(c) greater than exceeds the Estimated New Reinsurance Premium (such differenceContribution Consideration, a “Positive Adjustment Amount”)Acquiror shall, then Aspen shall pay to the Reinsurer (or to the applicable Trust Accounts, to the extent that the Reinsurer’s Posted Collateral is less than the Initial Required Collateral Amount), by wire transfer of immediately available funds to one or more accounts designated in writing by the Reinsurer, the Positive Adjustment Amount within five (5) Business Days following final determination such time as the Final Closing Statements becomes final, binding and conclusive, deliver to the Contributor evidence of the New Reinsurance Premium pursuant issuance of the amount of Class A Units of Acquiror (rounded to this Section 3.3 or (iithe nearest whole Class A Unit) less than equal to the amount of such excess divided by the Class A Unit Price. If the Estimated New Reinsurance Premium Contribution Consideration exceeds the Final Contribution Consideration as determined in accordance with Section 2.07(c), Acquiror shall, within five (5) Business Days following such time as the absolute value Final Closing Statements becomes final, binding and conclusive, deliver to the Contributor evidence of the cancellation of the amount of Class A Units of Acquiror (rounded to the nearest whole Class A Unit) equal to the amount of such difference, a “Negative Adjustment Amount”), then Aspen shall reduce the Funds Withheld Account Balance excess divided by the Negative Adjustment AmountClass A Unit Price.
Appears in 1 contract
Post-Closing Adjustment. (a) No later than forty-five Within one hundred twenty (45120) days following after the Closing Date, Aspen shall Purchaser will prepare and deliver to the Reinsurer a detailed statement in Company Representative (i) an unaudited consolidated balance sheet of the same form Company as of the Closing Statement Adjustment Time (the “Final Closing StatementBalance Sheet”) 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) a statement, prepared in good faith and in accordance with the Initial Required Collateral AmountAccounting Principles, showing Purchaser’s calculation of Closing Cash, Closing Indebtedness, Closing Net Working Capital, Transaction Expenses and the resulting calculation of the final Merger Consideration (together with the Closing Balance Sheet, the “Closing Statement”).
(b) Within 45 days after delivery of the Closing Statement, the Company Representative may dispute Purchaser’s calculation of Closing Cash, Closing Indebtedness, Closing Net Working Capital, Transaction Expenses or the resulting final Merger Consideration by delivering to Purchaser a written notice (a “Dispute Notice”) setting forth in reasonable detail the basis for each such disputed item. The Company Representative may not in its Dispute Notice include any line item (or any component of any line item) that was not included in the Estimated Closing Statement or change its calculation of any line item (or any component of any line item) in its Dispute Notice from what was set out in the Estimated Closing Statement if, in each case, such change would, taken on an individual basis, have the result of increasing the Estimated Merger Consideration compared to what was reflected in the Estimated Closing Statement. Purchaser will furnish to the Company Representative such workpapers and other documents and information relating to the disputed items as the Company Representative may reasonably request in connection with the Company Representative’s review of the Closing Date, together Balance Sheet and the Closing Statement. If the Company Representative fails to deliver a Dispute Notice in accordance with all accounting, actuarial and other data and documentation reasonably necessary for the Reinsurer to review ▇▇▇▇▇’s proposed final calculations of such amounts.
(bthis Section 2.7(b) Upon receipt within 45 days after delivery of the Final Closing Statement, then the Reinsurer and its authorized Representatives Company Representative 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 have irrevocably accepted by Purchaser’s calculation of Closing Cash, Closing Indebtedness, Closing Net Working Capital, Transaction Expenses and the Reinsurer as finalresulting final Merger Consideration, except to the extent that in which case, all such amounts are affected by any disputed amountswill be final and binding on the parties for purposes of Section 2.7(e).
(c) If Aspen the Company Representative timely delivers a Dispute Notice to Purchaser, then the Company Representative and Purchaser will attempt in good faith, for a period of 30 days, to agree on the Closing Cash, Closing Indebtedness, Closing Net Working Capital, Transaction Expenses and the Reinsurer are unable resulting final Merger Consideration, for purposes of Section 2.7(e). The Company Representative will furnish to Purchaser such workpapers and other documents and information relating to the disputed items as Purchaser may reasonably request in connection with Purchaser’s review of the Dispute Notice. Any resolution by the Company Representative and Purchaser during such 30-day period as to any disputed items will be final and binding on the parties for purposes of Section 2.7(e). If the Company Representative and Purchaser do not resolve all disputed items by the end of 30 days after the date of delivery of the Dispute Notice, then the Company Representative and Purchaser will submit the remaining items in dispute to an impartial nationally recognized firm of independent certified public accountants appointed by mutual agreement of Purchaser and the Company Representative (the “Independent Accounting Firm”) who, acting as an expert and not an arbitrator, shall resolve the remaining disputed amounts only. Nothing in this Section 2.7(c) shall be construed to authorize or permit the Independent Accounting Firm to resolve all any differences among the Company Representative and Purchaser other than those unresolved disagreements listed in the Dispute Notice, and the Independent Accounting Firm shall not be authorized or permitted to do so. The scope of the disputed items to be resolved by the Independent Accounting Firm shall be limited to whether the Estimated Closing Statement, the Closing Statement, and the components of each of them, were prepared in accordance with the Accounting Principles and this Agreement. The Company Representative and Purchaser will instruct the Independent Accounting Firm to render its determination with respect to the Final items in dispute in a written report that specifies the conclusions of the Independent Accounting Firm as to each item in dispute and the resulting calculations of Closing Cash, Closing Indebtedness, Closing Net Working Capital, Transaction Expenses and the resulting final Merger Consideration. With respect to each disputed item, such decision, if not in accordance with the position of either the Company Representative or Purchaser, shall not be in excess of the higher, nor less than the lower, of the amounts advocated by Purchaser in the Closing Statement within thirty (30) days following ▇▇▇▇▇’s receipt of a True-Up or the Company Representative in the Dispute Notice (with respect to such disputed line item. The Company Representative and Purchaser will each use their commercially reasonable efforts to cause the “True-up Dispute Cooling-Off Period”), Independent Accounting Firm to render its determination within 30 days after referral of the items and amounts in dispute shall be submitted for review to the Independent Actuary for final determination within forty-five (45) days after such submissionfirm or as soon thereafter as reasonably practicable. The Independent Actuary shall decide all matters relating to the procedures to be followed for resolution Accounting Firm’s determination of the disputeClosing Cash, including those relating to the submission and receipt of information and documents; providedClosing Indebtedness, howeverClosing Net Working Capital, that at the request of either Aspen or the Reinsurer, a meeting shall be held at which the Parties may present their views, that both Aspen Transaction Expenses and the Reinsurer shall have equal access to the Independent Actuaryresulting final Merger Consideration, and that all information and documents which either Party delivers or makes available to the Independent Actuary shall be furnished to the other Party as well. The review by the Independent Actuary shall be limited solely to the disputed items (and any items affected thereby) and amounts set forth in the True-Up Dispute Notice that remain unresolved. Any determination by the Independent Actuary shall not be outside the range defined by the respective amounts in the Final Closing Statement and the True-Up Dispute Notice, and such determination shall its report will be final and binding upon, and non-appealable by, on the Parties and their respective successors and assigns parties for all purposes of this Agreement, and not subject to collateral attack for any reason absent manifest error or fraudSection 2.7(e). The fees and expenses of the Independent Actuary arising from such arbitration shall Accounting Firm will be paid borne equally by the Parties pro rata Company Stockholders, on the one hand, and Purchaser, on the other hand, based on where upon the Independent Actuary’s determination of relationship the New Reinsurance Premium falls in comparison contested amount not awarded to each party bears to the amount claimed actually contested by ▇▇▇▇▇ in such party. For example, if Purchaser claims that the Final Closing Statement and appropriate adjustments are $1,000 greater than the amount claimed determined by the Reinsurer in Company Representative, and if the True-Up Dispute NoticeIndependent Accounting Firm ultimately resolves such claim by awarding to Purchaser $300 of the $1,000 contested, then the fees, costs and expenses of the Independent Accounting will be allocated 70% to Purchaser and 30% to the Company Representative.
(d) For purposes of complying with this Section 2.7, the Company Representative and Purchaser will furnish to each other and to the Independent Accounting Firm such workpapers and other documents and information relating to the disputed items as the Independent Accounting Firm may request and are available to that party (or its independent public accountants) and will be afforded the opportunity to present to the Independent Accounting Firm any material related to the disputed items and to discuss the items with the Independent Accounting Firm. Neither the Company Representative or Purchaser shall have or conduct any communication, either written or oral, with the Independent Accounting Firm without the other party either being present or receiving a concurrent copy of any written communication.
(e) If the New Reinsurance Premium Merger Consideration as finally determined pursuant to this Section 3.3 2.7 is less than the Estimated Merger Consideration (i) a “Price Adjustment Deficit”), then the Company Representative and Purchaser shall deliver joint written instructions to the Escrow Agent instructing the Escrow Agent to pay to Purchaser out of the Price Adjustment Escrow Account an amount equal to the Price Adjustment Deficit in cash; provided, that if the amount of funds in the Price Adjustment Escrow Account exceeds the Price Adjustment Deficit, as finally determined pursuant to this Section 2.7, then such joint written instructions to the Escrow Agent shall further instruct the Escrow Agent to make a Post-Closing Distribution of the remaining funds in the Price Adjustment Escrow Account pursuant to the Post-Closing Distribution Procedures. If the Merger Consideration as finally determined pursuant to this Section 2.7 is greater than the Estimated New Reinsurance Premium Merger Consideration (such difference, a “Positive Price Adjustment AmountSurplus”), then Aspen shall pay Purchaser will make a Post-Closing Distribution in an amount equal to the Reinsurer lesser of (or i) such Price Adjustment Surplus and (ii) 500,000, pursuant to the applicable Trust Accounts, to the extent that the Reinsurer’s Posted Collateral is less than the Initial Required Collateral Amount), Post-Closing Distribution Procedures by wire transfer of immediately available funds to one or more accounts designated in writing by the Reinsurer, the Positive Adjustment Amount within five (5) Business Days following the final determination of the New Reinsurance Premium final Merger Consideration in accordance with this Section 2.7, and the Company Representative and Purchaser shall deliver joint written instructions to the Escrow Agent instructing the Escrow Agent to make a Post-Closing Distribution of all of the funds in the Price Adjustment Escrow Account pursuant to the Post-Closing Distribution Procedures.
(f) The purpose of this Section 2.7 is to determine the final Merger Consideration to be paid by Purchaser under this Agreement. Any payment made pursuant to this Section 3.3 or (ii) less than the Estimated New Reinsurance Premium (the absolute value of such difference, a “Negative Adjustment Amount”), then Aspen shall reduce the Funds Withheld Account Balance 2.7 will be treated by the Negative Adjustment Amountparties for all purposes as an adjustment to the Merger Consideration and will not be subject to offset for any reason.
Appears in 1 contract
Post-Closing Adjustment. (a) No later than forty-five (45) 120 days following after the Closing DateDate (or such later date as mutually agreed by Buyer and Sellers Representative), Aspen Buyer shall prepare and deliver to the Reinsurer Sellers Representative (i) a detailed statement balance sheet of the Company as of the Measurement Time (together with supporting documentation reasonably necessary for Sellers Representative to verify such balance sheet, the “Final Balance Sheet”), (ii) worksheets showing Buyer’s calculation of the: (A) Indebtedness of the Company as of the Measurement Time, plus the amount of any premiums, penalties, fees, make-whole payments or other charges incurred as a result of the payment thereof on the Closing Date as reflected in the same form applicable Payoff Letter (collectively, “Final Indebtedness”), (B) the amount of all Transaction Expenses unpaid as of the Closing Statement Measurement Time (“Final Transaction Expenses”), (C) Net Working Capital derived from the Final Balance Sheet (based upon, and subject to the adjustments set forth in, the definitions of Current Assets and Current Liabilities) (the “Final Closing StatementNet Working Capital”) setting forth Aspen’s good faith calculation of ), (iD) the New Reinsurance Premium amount of all Incremental Equity Capital, if applicable (including the New Reinsurance Premium Accrued Interest“Final Incremental Equity Capital”), (E) the Roll-forward amount of all Gap Period Extraordinary Expenditures, if any (the “Final Gap Period Extraordinary Expenditures”), and (F) the Interim Tax Amount and (the ULAE Reimbursement “Final Interim Tax Amount”) and (iiiii) Buyer’s calculation of the Initial Required Collateral AmountFinal Closing Securities Payment, in each case, as together with a worksheet showing the difference, if any, between any Estimated Closing Item and the corresponding Final Closing Item. The Final Balance Sheet, Final Indebtedness, Final Transaction Expenses, the Final Net Working Capital, the Final Closing Securities Payment, the Final Incremental Equity Capital (if applicable), the Final Gap Period Extraordinary Expenditures (if any), and the Final Interim Tax Amount (together, the “Final Closing Items”) shall be prepared in good faith and on a basis consistent with the Audited Financial Statements. Sellers Representative and its representatives shall be entitled to reasonable access during normal business hours to all books and records of the Closing Date, together with all accounting, actuarial and other data and documentation Company as may be reasonably necessary requested by Sellers Representative for the Reinsurer purpose of this Section 2.4. Buyer and Sellers Representative shall promptly provide to review ▇▇▇▇▇’s proposed final calculations each other all documents reasonably requested by the other to verify any of such amounts.
(b) Upon the items set forth in the Final Closing Items calculations. Sellers Representative shall have the right for 30 days following receipt of the Final Closing Statement, the Reinsurer and its authorized Representatives will be given reasonable access Items to all accounting, actuarial and other data and documentation related object to the preparation any of the Final Closing Statement Items or the calculation thereof. Any objection made by Sellers Representative shall be made in writing and shall set forth such objection in reasonable detail. Sellers Representative shall be deemed to have waived any rights to object under this Section 2.4 unless Sellers Representative furnishes its written objections to Buyer within such 30-day period. If Sellers Representative delivers an objection within such 30-day period, then Buyer and Sellers Representative shall endeavor in good faith to resolve the objections. If, at the end of a 15-day period from the date of delivery of any objection by Sellers Representative or such longer period as may be mutually agreed by Buyer and Sellers Representative, there are any objections that remain in dispute, then the remaining objections in dispute shall be submitted for the purpose of, and resolution to the extent Oklahoma City, Oklahoma offices of the accounting firm of Ernst & Young (the “Closing Item Arbitrator”) and, in connection with the engagement for such submission, Sellers Representative and Buyer shall execute any engagement, indemnity and other agreements as the Closing Item Arbitrator may 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 require as a customary agreement relating condition to such access to work papers engagement in form and substance reasonably acceptable to such independent accountants or independent actuaries, as applicable. Within forty-five (45) days each of the Reinsurer’s receipt Sellers Representative and Buyer. The Closing Item Arbitrator shall determine the Final Closing Securities Payment as promptly as reasonably practicable after the objections that remain in dispute are submitted to the Closing Item Arbitrator, but in any event within 30 days after such objections that remain in dispute are submitted to the Closing Item Arbitrator. If any objections are submitted to the Closing Item Arbitrator for resolution, (i) each of Buyer and Sellers Representative shall furnish to the Closing Item Arbitrator such workpapers and other documents and information relating to such objections as the Closing Item Arbitrator may request and are reasonably available to that Party (or its independent public accountants) and will be afforded the opportunity to present to the Closing Item Arbitrator any material relating to the determination of the matters in dispute and to discuss such determination with the Closing Item Arbitrator, provided that neither Sellers Representative nor Buyer shall engage in any communication or correspondence with the Closing Item Arbitrator outside of the presence, or without the inclusion, of the other; (ii) the Closing Item Arbitrator must not adopt an amount of the Final Closing Statement, Securities Payment that is greater than the Reinsurer may deliver written notice amount submitted by Sellers Representative or less than the amount submitted by Buyer; and (iii) the “True-Up Dispute Notice”) to Aspen of any objections, specifying in reasonable detail any contested amounts and determination by 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 Item Arbitrator of the Final Closing Statement Securities Payment, as determined set forth in a written notice delivered to both Buyer and Sellers Representative by ▇▇▇▇▇. Any amounts not disputed in the True-Up Dispute Notice (if one is delivered) Closing Item Arbitrator, shall be deemed to made in accordance with this Agreement and the Sample Balance Sheet and shall be accepted by binding and conclusive on the Reinsurer as parties and, absent manifest error, shall constitute an arbitral award that is final, except to the extent that binding and unappealable and upon which a judgment may be entered by a court having jurisdiction thereof. Buyer and Seller shall each bear their own legal fees and other costs in connection with any 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 such submission. The Independent Actuary shall decide all matters relating to the procedures to be followed for resolution of the dispute, including those relating to the submission and receipt of information and documentsobjection; provided, however, that at the request of either Aspen or the ReinsurerBuyer, a meeting shall be held at which the Parties may present their views, that both Aspen and the Reinsurer shall have equal access to the Independent Actuaryon one hand, and that all information and documents which either Party delivers or makes available to the Independent Actuary shall be furnished to Seller, on the other Party as well. The review by hand, shall bear one-half of the Independent Actuary shall be limited solely to the disputed items (and any items affected thereby) and amounts in the True-Up Dispute Notice that remain unresolved. Any determination by the Independent Actuary shall not be outside the range defined by the respective amounts in the Final Closing Statement and the True-Up Dispute Notice, and such determination shall be final and binding upon, and non-appealable by, the Parties and their respective successors and assigns for all purposes of this Agreement, and not subject to collateral attack for any reason absent manifest error or fraud. The fees costs and expenses of the Independent Actuary arising from such arbitration Closing Item Arbitrator. Notwithstanding anything in this Agreement to the contrary, the Closing Item Arbitrator and procedures set forth herein shall be paid by the Parties pro rata based on where sole method for resolving any disputes regarding the Independent Actuary’s Final Closing Securities Payment or the provisions of this Section 2.4, provided that this Section 2.4 shall not affect the respective rights of Buyer or Seller under ARTICLE IX. Following the final determination of the New Reinsurance Premium falls in comparison to the amount claimed by ▇▇▇▇▇ in the Final Closing Statement and the amount claimed by the Reinsurer in the True-Up Dispute Notice.
(d) If the New Reinsurance Premium as finally determined Securities Payment pursuant to this Section 3.3 2.4, if the Final Closing Securities Payment is greater than the Closing Securities Payment then Buyer shall pay to Seller the amount of the Final Adjustment Amount promptly (but in any event within five Business Days of the determination of the Final Closing Securities Payment) or if the Closing Securities Payment is greater than the Final Closing Securities Payment then Seller shall pay to Buyer the amount of the Final Adjustment Amount promptly (but in any event within five Business Days of the determination of the Final Closing Securities Payment; provided, however, that if the Final Adjustment Amount is: (i) greater than to be paid to Buyer, if Seller fails to timely pay the Estimated New Reinsurance Premium (such difference, a “Positive Final Adjustment Amount”)Amount to Buyer, then Aspen each Member shall pay to the Reinsurer promptly (or to the applicable Trust Accounts, to the extent that the Reinsurer’s Posted Collateral is less than the Initial Required Collateral Amount), by wire transfer of immediately available funds to one or more accounts designated but in writing by the Reinsurer, the Positive Adjustment Amount any event within five (5) two Business Days following final determination the date such payment was due from Seller) pay to Buyer such Member’s pro rata percentage as set forth in Schedule B of the New Reinsurance Premium pursuant to this Section 3.3 amount of the Final Adjustment Amount that is not timely paid by Seller or (ii) less than the Estimated New Reinsurance Premium (the absolute value of such difference, a “Negative Adjustment Amount”)to be paid to Seller, then Aspen after such payment is made to Seller, Seller shall reduce immediately pay to the Funds Withheld Account Balance Members the Final Adjustment Amount in the proportions set forth on Schedule B hereto in immediately available funds by confirmed wire transfer to the Negative bank account or accounts designated by each Member in writing to Seller at least three Business Days prior to payment of the Final Adjustment AmountAmount (provided that none of Buyer, the Company or TS Crude shall have any liability or obligation under this proviso or for any failure of Seller to comply herewith).
Appears in 1 contract
Sources: Securities Purchase Agreement (EnLink Midstream Partners, LP)
Post-Closing Adjustment. (a) No later than forty-five As promptly as possible, but in any event within ninety (4590) days following after the Closing Date, Aspen shall Buyer will 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 Seller (i) an unaudited, consolidated balance sheet of the New Reinsurance Premium Target Companies as of the Closing (including which will have been prepared with the New Reinsurance Premium Accrued Interest, assistance of Buyer’s and/or the Roll-forward Amount and the ULAE Reimbursement AmountCompany’s accountants) and (ii) its calculation of the Initial Required Collateral Aggregate Consideration Amount, including all components thereof (together, the “Closing Statement”). The Closing Statement will be prepared in each casea manner consistent with the Net Working Capital Methodology and the definitions of the terms Closing Cash, Closing Indebtedness, Unpaid Pre-Closing Taxes, Net Working Capital and Seller Transaction Expenses contained herein. The Closing Statement will entirely disregard (i) any and all effects on the Assets or Liabilities of the Target Companies as a result of the Contemplated Transactions (except with respect to the impact of the Transaction Tax Deductions for purposes of calculating unpaid income Tax Liabilities of the Target Companies for the Pre- Closing Tax Period) or of any financing or refinancing arrangements entered into at any time by Buyer or any other transaction entered into by Buyer in connection with the consummation of the Contemplated Transactions, (ii) any of the plans, transactions, or changes which Buyer intends to initiate or make or cause to be initiated or made after the Closing with respect to the Target Companies or the Business or Assets, or any facts or circumstances that are unique or particular to Buyer or any of its Assets or Liabilities, and (iii) with respect to the calculation of Net Working Capital for purposes of the Closing DateStatement, together with all accounting, actuarial and other data and documentation reasonably necessary for the Reinsurer to review ▇▇▇▇▇’s proposed final calculations introduction or inclusion by Buyer or Seller of such amounts.any line items or accounts not expressly included in the Net Working Capital Methodology.
(b) Upon receipt Buyer will, and will cause the Company to, (i) provide the Seller and its Representatives with access upon reasonable advance notice and during normal business hours to the books, records (including work papers, schedules, memoranda and other documents), supporting data, facilities and employees of the Final Target Companies solely for purposes of their review of the Closing Statement, and (ii) reasonably cooperate with the Seller and its Representatives in connection with such review, including providing on a timely basis all other information necessary or useful in connection with the review of the Closing Statement as is reasonably requested by the Seller or its Representatives. If the Seller has any objections to the Closing Statement, the Reinsurer and Seller will deliver to Buyer a statement setting forth its authorized Representatives objections thereto (an “Objections Statement”), which statement will be given identify in reasonable access detail those items to all accounting, actuarial and other data and documentation related to which 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 Seller objects (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 PeriodDisputed Items”), the items and amounts in dispute shall be submitted for review . If an Objections Statement is not delivered to the Independent Actuary for final determination Buyer within forty-five (45) days after such submission. The Independent Actuary shall decide all matters relating to the procedures to be followed for resolution delivery of the disputeClosing Statement, including those relating to the submission and receipt of information and documents; provided, however, that at the request of either Aspen or the Reinsurer, a meeting shall be held at which the Parties may present their views, that both Aspen and the Reinsurer shall have equal access to the Independent Actuary, and that all information and documents which either Party delivers or makes available to the Independent Actuary shall be furnished to the other Party as well. The review by the Independent Actuary shall be limited solely to the disputed items (and any items affected thereby) and amounts in the True-Up Dispute Notice that remain unresolved. Any determination by the Independent Actuary shall not be outside the range defined by the respective amounts in the Final Closing Statement and the True-Up Dispute Notice, and such determination shall as prepared by Buyer will be final and binding uponon the Parties. The Seller and Buyer will negotiate in good faith to resolve the Disputed Items and all such discussions related thereto will (unless otherwise agreed by Buyer and the Seller) be governed by Rule 408 of the Federal Rules of Evidence and any applicable similar state rule. If Buyer and the Seller are unable to reach a final resolution of all Disputed Items within thirty (30) days after the delivery of the Objections Statement to Buyer, the Seller and Buyer will submit any unresolved Disputed Items to ▇▇▇▇▇▇ ▇▇▇▇▇ + ▇▇▇▇▇, PC, or another independent national accounting firm mutually selected by Buyer and the Seller (the “Accounting Firm”). Buyer and the Seller will instruct the Accounting Firm to, and non-appealable bythe Accounting Firm shall, make a final determination of the Parties Disputed Items (and only the Disputed Items) solely in accordance with the guidelines and procedures set forth in this Agreement. Buyer and the Seller will cooperate with the Accounting Firm during the term of its engagement. Buyer and the Seller will instruct the Accounting Firm not to, and the Accounting Firm will not, assign a value to any Disputed Item greater than the greatest value for such item assigned by Buyer, on the one hand, or the Seller, on the other hand, or less than the smallest value for such item assigned by Buyer, on the one hand, or the Seller, on the other hand. Buyer and the Seller will also instruct the Accounting Firm to, and the Accounting Firm shall, make its determination based solely on presentations by Buyer and the Seller that are in accordance with the guidelines and procedures set forth in this Agreement (i.e., not on the basis of an independent review). Buyer and the Seller will further instruct the Accounting Firm, with respect to any Disputed Items pertaining to the calculation of Net Working Capital, not to consider or otherwise permit to be included as a Disputed Item for any purpose, any line item or account not expressly included in the Net Working Capital Methodology. For the avoidance of doubt, any final determination of the Accounting Firm with respect to the calculation of Net Working Capital shall include the final Net Working Capital figure, as calculated by the Accounting Firm pursuant to the Net Working Capital Methodology taking into account the resolution of the Disputed Items. The Seller and Buyer will use their respective successors reasonable best efforts to cause the Accounting Firm to resolve such dispute as soon as practicable. The Accounting Firm’s determination will, absent manifest error, be final and assigns for all purposes of this Agreement, binding on the parties hereto and will not be subject to collateral attack for any reason absent manifest error court review or fraudotherwise appealable. The fees and expenses of the Independent Actuary arising from such arbitration shall Accounting Firm (i) will be paid borne by the Parties pro rata based on where Seller in the Independent Actuary’s determination proportion that the aggregate dollar amount of Disputed Items submitted thereto for resolution that are unsuccessfully disputed by the New Reinsurance Premium falls in comparison Seller (as finally determined by the Accounting Firm) bears to the aggregate dollar amount claimed of such submitted Disputed Item and (ii) will be borne by ▇▇▇▇▇ Buyer in the Final Closing Statement and proportion that the aggregate dollar amount claimed of Disputed Items submitted thereto for resolution that are successfully disputed by the Reinsurer in Seller (as finally determined by the True-Up Dispute Notice.Accounting Firm) bears to the aggregate dollar amount of such submitted Disputed Items.
(dc) If the New Reinsurance Premium Aggregate Consideration Amount as finally determined pursuant to this Section 3.3 3.3(b) (the “Final Aggregate Consideration Amount”) is (i) greater than the Estimated New Reinsurance Premium Aggregate Consideration Amount (such differenceexcess amount, a the “Positive Adjustment Excess Amount”), then Aspen shall pay to the Reinsurer (or to the applicable Trust Accountsthen, to the extent that the Reinsurer’s Posted Collateral is less than the Initial Required Collateral Amount), by wire transfer of immediately available funds to one or more accounts designated in writing by the Reinsurer, the Positive Adjustment Amount within five (5) Business Days following final determination of the New Reinsurance Premium pursuant to this Section 3.3 or (ii) less than the Estimated New Reinsurance Premium (the absolute value of such difference, a “Negative Adjustment Amount”), then Aspen shall reduce the Funds Withheld Account Balance by the Negative Adjustment Amount.five
Appears in 1 contract
Post-Closing Adjustment. (a) No later than forty-five (45) Within 75 days following after the Closing Date, Aspen shall Parent will prepare and deliver to the Reinsurer a detailed statement in the same form as the Closing Statement Members’ Representative written notice (the “Final Closing StatementAdjustment Notice”) setting forth Aspen’s good faith calculation containing an unaudited consolidated balance sheet of the Company as of the close of business on the Closing Date (the “Closing Balance Sheet”), including detailed supporting calculations of (i) the New Reinsurance Premium Indebtedness of the Company as of the Closing Date less any Parent Expense Excess (including the New Reinsurance Premium Accrued Interest“Closing Indebtedness”), the Roll-forward Amount and the ULAE Reimbursement Amount) and (ii) the Initial Required Collateral Amount, in each case, Working Capital of the Company as of the Closing DateDate (“Closing Working Capital”) and (iii) Parent’s calculation of the amount of any Initial Merger Consideration adjustment required pursuant to Section 2.03(i) (“Adjustment Amount”), together if any. If Parent represents that no Adjustment Amount is due and required, the Adjustment Notice shall so state. The Closing Balance Sheet, including the Closing Indebtedness and Closing Working Capital, will be prepared in accordance with all accountingGAAP (subject to any adjustments that relate to Transaction Expenses as permitted herein) in a manner consistent with the methods and practices used to prepare the Estimated Balance Sheet, actuarial Estimated Indebtedness and other data and documentation reasonably necessary for the Reinsurer to review ▇▇▇▇▇’s proposed final calculations of such amountsEstimated Working Capital.
(b) Upon receipt Within 30 days after delivery of the Final Closing StatementAdjustment Notice, the Reinsurer Members’ Representative will deliver to Parent a written response in which the Members’ Representative will either:
(i) agree in writing with the Closing Balance Sheet as set forth in the Adjustment Notice, in which case such calculations of Closing Indebtedness, Closing Working Capital and its authorized Representatives Adjustment Amount, if any, will be given reasonable access to all accounting, actuarial final and other data and documentation related to binding on the preparation parties for purposes of the Final Closing Statement for the purpose of, and to the extent reasonably necessary for, verifying the Final Closing StatementSection 2.03(i); provided, or
(ii) dispute Parent’s determination that no independent accountants Adjustment Amount is due and required or independent actuaries Parent’s calculation 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 Closing Indebtedness, Closing Working Capital or independent actuariesAdjustment Amount, if any, as applicable. Within forty-five (45) days of set forth in the Reinsurer’s receipt of the Final Closing Statement, the Reinsurer may deliver Adjustment Notice by delivering to Parent a written notice (the a “True-Up Dispute Notice”) to Aspen of any objections, specifying setting forth 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 for each 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 item and certifying that all such disputed items are being 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 amountsgood faith.
(c) If Aspen the Members’ Representative fails to take either of the foregoing actions within 30 days after delivery of the Adjustment Notice, then the Company will be deemed to have irrevocably accepted Parent’s calculation of 10 Closing Indebtedness, Closing Working Capital and/or Adjustment Amount, if any, as set forth in the Adjustment Notice, in which case such calculation of Closing Indebtedness, Closing Working Capital and Adjustment Amount will be final and binding on the parties for purposes of Section 2.03(i).
(d) If the Members’ Representative delivers a Dispute Notice to Parent within 30 days after delivery of the Adjustment Notice, then Parent and the Reinsurer Members’ Representative will attempt in good faith, for a period of 30 days, to agree on the calculations of Closing Indebtedness, Closing Working Capital and Adjustment Amount for purposes of Section 2.03(i). Any resolution by Parent and the Members’ Representative during such 30-day period as to any disputed items will be final and binding on the parties for purposes of Section 2.03(i). If Parent and the Members’ Representative do not resolve all disputed items by the end of 30 days after the date of delivery of the Dispute Notice, then Parent and the Members’ Representative will submit the remaining items in dispute to H▇▇▇ & Associates, LLP, or if that firm is unwilling or unable to serve, Parent and the Members’ Representative will engage another mutually agreeable independent accounting firm of recognized national standing, which is not the regular auditing firm of Parent or the Company. If Parent and the Members’ Representative are unable to resolve all disagreements jointly select such independent accounting firm within 10 days after such 30-day period, Parent and the Members’ Representative will each select an independent accounting firm of recognized national standing and each such selected accounting firm will select a third independent accounting firm of recognized national standing, which is not the regular auditing firm of Parent or the Company (such selected independent accounting firm, whether pursuant to this sentence or the preceding sentence, the “Independent Accounting Firm”). The Independent Accounting Firm will act as arbitrator to determine (based solely upon presentations made by Parent and the Members’ Representative and not by independent audit or review) only those items still in dispute. The Purchaser and the Members’ Representative will instruct the Independent Accounting Firm to render its determination with respect to the Final items in dispute in a written report that specifies the conclusions of the Independent Accounting Firm as to each item in dispute and the resulting calculations and determination of the Closing Statement Indebtedness, Closing Working Capital and the Adjustment Amount. The Parent and the Members’ Representative will each use their commercially reasonable efforts to cause the Independent Accounting Firm to render its determination within thirty (30) 30 days following ▇▇▇▇▇’s receipt after referral 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 such firm or as soon thereafter as reasonably practicable. The determinations of the Independent Accounting Firm with respect to the Independent Actuary for final determination within forty-five (45) days after such submission. The Independent Actuary shall decide all matters relating to the procedures to be followed for resolution of the disputeClosing Indebtedness, including those relating to the submission Closing Working Capital and receipt of information and documents; provided, however, that at the request of either Aspen or the Reinsurer, a meeting shall be held at which the Parties may present their views, that both Aspen and the Reinsurer shall have equal access to the Independent Actuary, and that all information and documents which either Party delivers or makes available to the Independent Actuary shall be furnished to the other Party as well. The review by the Independent Actuary shall be limited solely to the disputed items (and any items affected thereby) and amounts in the True-Up Dispute Notice that remain unresolved. Any determination by the Independent Actuary shall not be outside the range defined by the respective amounts in the Final Closing Statement and the True-Up Dispute Notice, and such determination shall Adjustment Amount will be final and binding upon, and non-appealable by, on the Parties and their respective successors and assigns parties for all purposes of Section 2.03(i). Parent and the Members’ Representative will revise the Closing Balance Sheet and the calculation of the Closing Indebtedness, Closing Working Capital and Adjustment Amount as appropriate to reflect the resolution of the issues in dispute pursuant to this AgreementSection 2.03. The procedures for payment of an Adjustment Amount, and not subject to collateral attack for any reason absent manifest error whether in favor of Parent or fraudin favor of Members, are as set forth in Section 2.03(i) hereof. The fees and expenses of the Independent Actuary arising from such arbitration Accounting Firm will be shared by Parent and the Members in inverse proportion to the relative amounts of the disputed amount (as ultimately resolved) determined to be for the account of Parent and the Members, respectively. For example, if the final Adjustment Amount is forty percent (40%) of the Parent’s original Adjustment Amount as determined in accordance with Section 2.03(a), the Members shall be paid by pay forty percent (40%) of the Parties pro rata based on where fees and expenses of the Independent Actuary’s determination Accounting Firm and Parent shall pay the remaining sixty percent (60%) of the New Reinsurance Premium falls in comparison to the amount claimed by ▇▇▇▇▇ in the Final Closing Statement such fees and the amount claimed by the Reinsurer in the True-Up Dispute Noticeexpenses.
(de) For purposes of complying with this Section 2.03, Parent and the Members’ Representative will furnish to each other and to the Independent Accounting Firm such work papers and other documents and information relating to the disputed issues as the Independent Accounting Firm may request and as are available to that party (or its independent public accountants) and each such party will be afforded the opportunity to present to the Independent Accounting Firm any material related to the disputed items and to discuss the items with the Independent Accounting Firm. Parent must require that the Independent Accounting Firm enter into a customary form of confidentiality agreement with respect to the work papers and other documents and information regarding the matters, including financial information contained in the Adjustment Notice and Dispute Notice, provided to the Independent Accounting Firm pursuant to this Section 2.03.
(f) If the New Reinsurance Premium Closing Indebtedness as finally determined in accordance with this Section 2.03 is equal to $60,000,000, then no adjustment shall be made. If the Closing Indebtedness as finally determined pursuant to this Section 3.3 is (i) greater than the Estimated New Reinsurance Premium (such difference, a “Positive Adjustment Amount”), then Aspen shall pay to the Reinsurer (or to the applicable Trust Accounts, to the extent that the Reinsurer’s Posted Collateral 2.03 is less than the Initial Required Collateral Amount)$60,000,000, by wire transfer then the Parent shall pay the Members the amount of immediately available funds such difference pursuant to one or more accounts designated in writing by Section 2.03(i) below. If the Reinsurer, the Positive Adjustment Amount within five (5) Business Days following final determination of the New Reinsurance Premium Closing Indebtedness as finally determined pursuant to this Section 3.3 or 2.03 is 11 greater than the $60,000,000, then the Members will pay to Parent the amount of such difference pursuant to Section 2.03(i) below.
(iig) If the Closing Working Capital is less than 13.0% of the Estimated New Reinsurance Premium average annualized monthly revenues of the Company using the three (3) completed months immediately preceding the Closing Date (the absolute value of such difference, a “Negative Adjustment AmountTarget Working Capital”), an example of the calculation of which is set forth on Schedule 2.03(g) for the period ending June 30, 2006, then Aspen shall reduce the Funds Withheld Account Balance Members will pay to Parent the amount of such difference pursuant to Section 2.03(i) below.
(h) All payments required to be made by the Negative Adjustment AmountMembers, on a pro rata basis in proportion to each Member’s share (carried to five decimal places) of the Company Interests, pursuant to Sections 2.03(f) and 2.03(g) will be satisfied by payment from the Escrow Shares (based on the Escrow Per Share Market Value (as defined below) of the Parent Common Stock at such time) in accordance with the terms of the Escrow Agreement or otherwise as permitted by Section 2.03(d) above. The Members will be severally, but not jointly, liable for any amount by which any payments required under Sections 2.03(f) or 2.03(g) exceed the Escrow Fund. All payments to be made by the Parent pursuant to Section 2.03(f) will be satisfied by issuance of additional shares of Parent Common Stock and Parent Warrants to the Members, issued and distributed to the Members on a pro rata basis in proportion to each Member’s share (carried to five decimal places) of the Company Interests based upon the Exchange Value. All adjustments to the Initial Merger Consideration pursuant to this Section 2.03 will be applied to the Initial Merger Consideration to be received by each Member pro-rata based in proportion to each Member’s share (carried to five decimal point places) of the Initial Merger Consideration. The term “Escrow Per Share Market Value” shall mean for any date, the price determined by calculating the average of the closing per share prices of the Parent Common Stock on the American Stock Exchange (“AMEX”) (as reported on AMEX) or such other stock exchange on which Parent Common Stock may then be trading (based on a Trading Day closing at 4:02 p.m. New York City time) for the twenty days prior to any distribution date as described in the Escrow Agreement.
Appears in 1 contract
Sources: Agreement and Plan of Merger (JK Acquisition Corp.)
Post-Closing Adjustment. (a) No later than forty-five (45) Within ninety days following after the Closing Date, Aspen Acquiror shall deliver to the Reinsurer Seller a detailed statement in the same form as the Closing Statement (the “Final Closing Statement”) setting forth Aspen’s good faith calculation ), showing in reasonable detail its final determination of the Seller Capital Contribution and Total Adjusted Capital, in each case as of the Effective Time. The Closing Statement: (i) shall be prepared using the New Reinsurance Premium (including the New Reinsurance Premium Accrued Interest, the Roll-forward Amount same format and the ULAE Reimbursement Amount) same methodologies required to be used in preparing the Estimated Closing Statement and (ii) shall clearly set forth any variations between the Initial Required Collateral Amount, in each case, as Estimated Total Adjusted Capital and Acquiror’s calculation of the Closing DateTotal Adjusted Capital. Total Adjusted Capital and each of its component parts, together Capital and Surplus and the Asset Valuation Reserve, shall be determined in accordance with all accountingSAP applied consistent with the application of SAP in the preparation of the Statutory Statements, and reserves shall be determined using the actuarial model and other data and documentation reasonably necessary actuarial assumptions used in setting the reserves reflected in the Annual Statutory Statement for the Reinsurer year ended December 31, 2016. The Acquiror acknowledges and agrees that the amount of the Estimated Seller Capital Contribution was negotiated and agreed to review ▇▇▇▇▇’s proposed final calculations address all issues related to the adequacy and sufficiency of such amountsreserves as part of the adjustment required pursuant to this Section 2.09, and the Acquiror will not propose any adjustment of reserves pursuant to this Section 2.09. Notwithstanding anything to the contrary set forth in this Section 2.09(a), nothing contain herein shall affect or otherwise limit the ability of Acquiror to seek indemnification for breaches of any representation or warranties of Seller set forth in this Agreement.
(b) Upon Within thirty days after its receipt of the Final Closing Statement, or such other time as is mutually agreed in writing by 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 parties (the “True-Up Dispute NoticeNotice Period”), Seller shall deliver in writing to Acquiror either (i) to Aspen its agreement with the calculation of any objectionsthe Seller Capital Contribution and Total Adjusted Capital as set forth in the Closing Statement or (ii) its dispute thereof, specifying in reasonable detail any contested amounts each item in dispute and the basis therefornature of such dispute (such items in dispute, which the Reinsurer may have to the Final Closing Statement. The failure “Disputed Items,” and such notice of the Reinsurer Disputed Items, the “Dispute Notice”). If Seller fails to deliver such True-Up to Acquiror a Dispute Notice within the prescribed time period will Notice Period, then the Total Adjusted Capital and Seller Capital Contribution as set forth in the Closing Statement shall be final and binding on the parties and shall constitute the Reinsurer’s acceptance as final Seller Capital Contribution. If Seller delivers to Acquiror a Dispute Notice prior to the expiration of the Final Notice Period, then Acquiror and Seller shall cooperate and each shall cause its Representatives to cooperate with the other party and its Representatives in good faith to seek to promptly resolve the Disputed Items. Any Disputed Items that are agreed to in writing by Acquiror and Seller within thirty days of receipt of the Dispute Notice by Acquiror, or such other time as is mutually agreed in writing by Acquiror and Seller (the “Dispute Period”), shall be final and binding upon Acquiror and Seller and become part of the calculation of the Seller Capital Contribution. If at the end of the Dispute Period, Acquiror and Seller have failed to reach agreement with respect to any Disputed Items, then such Disputed Items shall be promptly submitted to the Independent Accounting Firm. The Independent Accounting Firm may consider only those Disputed Items that Acquiror and Seller have been unable to resolve within the Dispute Period, and must resolve the Disputed Items in accordance with the terms and provisions of this Agreement. Each party may submit a written statement of its position to the Independent Accounting Firm within five Business Days of its appointment, with a copy of such written statement simultaneously sent to the other party. Neither party shall have any ex parte communication with the Independent Accounting Firm. The determination of the Independent Accounting Firm must neither be more favorable to Acquiror than reflected in the Closing Statement as determined by ▇▇▇▇▇. Any amounts not disputed nor more favorable to Seller than reflected in the True-Up Dispute Notice (if one is delivered) excluding the allocation of expenses incurred in connection with the resolution of the Disputed Items). The Independent Accounting Firm shall deliver to Acquiror and Seller, as promptly as practicable and in any event within thirty days after its appointment, a written report setting forth the resolution of each Disputed Item and the resulting final Total Adjusted Capital and Seller Capital Contribution, determined in accordance with the terms of this Agreement. The conclusions in such report of the Independent Accounting Firm shall be deemed final and binding upon Acquiror and Seller. Each of Acquiror and Seller shall bear all of the fees and costs incurred by it in connection with the resolution of the Disputed Items, except that all fees and expenses relating to be accepted the foregoing work by the Reinsurer as final, except Independent Accounting Firm shall be borne in inverse proportion to the extent degree that such amounts are affected each prevails on the Disputed Items, which proportionate allocation will also be determined by any disputed amountsthe Independent Accounting Firm.
(c) If Aspen and the Reinsurer are unable final Total Adjusted Capital as determined in accordance with Section 2.09(b) exceeds the Estimated Total Adjusted Capital by more than $500,000, then Acquiror shall pay to resolve all disagreements Seller an amount equal to such excess or, if the final Total Adjusted Capital as determined in accordance with respect to the Final Closing Statement within thirty (30Section 2.09(b) 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 such submission. The Independent Actuary shall decide all matters relating to the procedures to be followed for resolution of the dispute, including those relating to the submission and receipt of information and documents; provided, however, that at the request of either Aspen or the Reinsurer, a meeting shall be held at which the Parties may present their views, that both Aspen and the Reinsurer shall have equal access to the Independent Actuary, and that all information and documents which either Party delivers or makes available to the Independent Actuary shall be furnished to the other Party as well. The review by the Independent Actuary shall be limited solely to the disputed items (and any items affected thereby) and amounts in the True-Up Dispute Notice that remain unresolved. Any determination by the Independent Actuary shall not be outside the range defined by the respective amounts in the Final Closing Statement and the True-Up Dispute Notice, and such determination shall be final and binding upon, and non-appealable by, the Parties and their respective successors and assigns for all purposes of this Agreement, and not subject to collateral attack for any reason absent manifest error or fraud. The fees and expenses of the Independent Actuary arising from such arbitration shall be paid by the Parties pro rata based on where the Independent Actuary’s determination of the New Reinsurance Premium falls in comparison to the amount claimed by ▇▇▇▇▇ in the Final Closing Statement and the amount claimed by the Reinsurer in the True-Up Dispute Notice.
(d) If the New Reinsurance Premium as finally determined pursuant to this Section 3.3 is (i) greater less than the Estimated New Reinsurance Premium Total Adjusted 5 Capital by more than $500,000, then Seller shall pay to Acquiror (or such differenceAffiliate of Acquiror as Acquiror shall designate in writing), a an amount equal to such shortfall (each referred to as, the “Positive Adjustment Amount”), then Aspen shall pay to the Reinsurer (or to the applicable Trust Accounts, to the extent that the Reinsurer’s Posted Collateral is less than the Initial Required Collateral Amount), by wire transfer of immediately available funds to one or more accounts designated in writing by the Reinsurer, the Positive . The Adjustment Amount within five (5) shall be due and payable on the second Business Days following Day after Acquiror and Seller agree on the final Total Adjusted Capital and resulting final Seller Capital Contribution or the parties are provided notice of any final determination of the New Reinsurance Premium pursuant to final Total Adjusted Capital and resulting final Seller Capital Contribution, in each case as agreed or determined in accordance with this Section 3.3 2.09 (the “Settlement Date”). The Seller shall pay or (ii) the Acquiror shall pay or cause KIC to pay, as applicable, the Adjustment Amount by wire transfer to the account or accounts of the party entitled to receive such payment, which account or accounts shall be designated by Acquiror to Seller or by Seller to Acquiror, as the case may be, not less than two Business Days prior to the Estimated New Reinsurance Premium (the absolute value of such difference, a “Negative Adjustment Amount”), then Aspen shall reduce the Funds Withheld Account Balance by the Negative Adjustment AmountSettlement Date.
Appears in 1 contract
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-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 such submission. The Independent Actuary shall decide all matters relating to the procedures to be followed for resolution of the dispute, including those relating to the submission and receipt of information and documents; provided, however, that at the request of either Aspen or the Reinsurer, a meeting shall be held at which the Parties may present their views, that both Aspen and the Reinsurer shall have equal access to the Independent Actuary, and that all information and documents which either Party delivers or makes available to the Independent Actuary shall be furnished to the other Party as well. The review by the Independent Actuary shall be limited solely to the disputed items (and any items affected thereby) and amounts in the True-Up Dispute Notice that remain unresolved. Any determination by the Independent Actuary shall not be outside the range defined by the respective amounts in the Final Closing Statement and the True-Up Dispute Notice, and such determination shall be final and binding upon, and non-appealable by, the Parties and their respective successors and assigns for all purposes of this Agreement, and not subject to collateral attack for any reason absent manifest error or fraud. The fees and expenses of the Independent Actuary arising from such arbitration shall be paid by the Parties pro rata based on where the Independent Actuary’s determination of the New Reinsurance Premium falls in comparison to the amount claimed by ▇▇▇▇▇ in the Final Closing Statement and the amount claimed by the Reinsurer in the True-Up Dispute Notice.’s
(d) If the New Reinsurance Premium as finally determined pursuant to this Section 3.3 is (i) greater than the Estimated New Reinsurance Premium (such difference, a “Positive Adjustment Amount”), then Aspen shall pay to the Reinsurer (or to the applicable Trust Accounts, to the extent that the Reinsurer’s Posted Collateral is less than the Initial Required Collateral Amount), by wire transfer of immediately available funds to one or more accounts designated in writing by the Reinsurer, the Positive Adjustment Amount within five (5) Business Days following final determination of the New Reinsurance Premium pursuant to this Section 3.3 or (ii) less than the Estimated New Reinsurance Premium (the absolute value of such difference, a “Negative Adjustment Amount”), then Aspen shall reduce the Funds Withheld Account Balance by the Negative Adjustment Amount.
Appears in 1 contract
Sources: Reinsurance Agreement (Aspen Insurance Holdings LTD)
Post-Closing Adjustment. (a) No later than fortyWithin seventy-five (4575) days following after the Initial Closing Date, Aspen Buyer shall prepare and deliver to Seller:
(i) an unaudited balance sheet of Nutra (the Reinsurer “Closing Balance Sheet”) as of, and at the close of business on the date immediately prior to, the Initial Closing Date; and
(ii) a detailed final closing statement in the same form as the Closing Statement (the “Final Closing Statement”) setting forth Aspen), reflecting Buyer’s good faith calculation of (iA) Net Working Capital (“Initial Closing Net Working Capital”), (B) the New Reinsurance Premium aggregate amount of all Indebtedness of Nutra (including the New Reinsurance Premium Accrued Interest“Initial Closing Indebtedness”), the Roll-forward Amount and the ULAE Reimbursement Amount(C) and a calculation of Cash of Nutra (ii“Initial Closing Cash”), (D) the a calculation of Unpaid Nutra Transaction Expenses (“Initial Required Collateral AmountClosing Unpaid Nutra Transaction Expenses”), in each case, calculated as of immediately prior to the Initial Closing (without giving effect to the transactions contemplated in connection with the Initial Closing) consistent (except as provided in this Section 2.08) with the Closing DateBalance Sheet, together with all accounting, actuarial and other data and documentation reasonably necessary for (E) a calculation of the Reinsurer to review ▇▇▇▇▇’s proposed final calculations of such amountsAdjustment Amount.
(b) Upon receipt The Closing Balance Sheet and Final Closing Statement shall be prepared in accordance with GAAP applied in a manner consistent with the principles applied in connection with the preparation of the Final most recent balance sheet included in the Financial Statements (the “Reference Balance Sheet”); provided that (x) the Closing StatementBalance Sheet shall not give effect to the Initial Purchase, including any payments of cash in respect of the Reinsurer Preliminary Purchase Price or any financing transactions in connection therewith or, after the Initial Closing, any other action or omission by Buyer or Nutra that is not in the ordinary course of business consistent with past practice, (y) the treatment of leases as capital leases or operating leases shall be identical to their treatment in the Reference Balance Sheet, and (z) the Closing Balance Sheet shall not reflect any expense or Liability for which Buyer is responsible under this Agreement. Following the Initial Closing, Buyer shall provide Seller and its authorized Representatives will be given reasonable access during normal business hours to all accountingthe records, actuarial properties, personnel and other data and documentation related (subject to the execution of customary work paper access letters if requested) auditors of Nutra relating to the preparation of the Closing Balance Sheet and the Final Closing Statement for and shall cause the purpose of, personnel of Nutra to reasonably cooperate with Seller in connection with its review of the Closing Balance Sheet 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 Seller shall disagree with such calculations of Initial Closing Net Working Capital, Initial Closing Indebtedness, Initial Closing Cash or Initial Closing Unpaid Nutra Transaction Expenses, it shall notify Buyer of such disagreement in writing, setting forth in reasonable detail the Reinsurer are unable to resolve all disagreements with respect to the Final Closing Statement particulars of such disagreement, within thirty (30) days following ▇▇▇▇▇’s after its receipt of the Closing Balance Sheet and Final Closing Statement. In the event that Seller does not provide a True-Up Dispute Notice notice of disagreement within such thirty (the “True-up Dispute Cooling-Off Period”)30)-day period, the items GNC Parties and amounts in dispute Buyer shall be submitted for review deemed to have agreed to the Independent Actuary for final determination within forty-five (45) days after such submission. The Independent Actuary shall decide all matters relating to the procedures to be followed for resolution of the dispute, including those relating to the submission Closing Balance Sheet and receipt of information and documents; provided, however, that at the request of either Aspen or the Reinsurer, a meeting shall be held at which the Parties may present their views, that both Aspen and the Reinsurer shall have equal access to the Independent Actuary, and that all information and documents which either Party delivers or makes available to the Independent Actuary shall be furnished to the other Party as well. The review by the Independent Actuary shall be limited solely to the disputed items (and any items affected thereby) and amounts in the True-Up Dispute Notice that remain unresolved. Any determination by the Independent Actuary shall not be outside the range defined by the respective amounts in the Final Closing Statement and the True-Up Dispute Noticecalculations of Initial Closing Net Working Capital, Initial Closing Indebtedness, Initial Closing Cash, and such determination Initial Closing Unpaid Nutra Transaction Expenses delivered by Buyer, which shall be final final, binding and conclusive for all purposes hereunder. In the event any notice of disagreement is timely provided, Buyer and Seller shall use reasonable best efforts for a period of twenty (20) days (or such longer period as they may mutually agree) to resolve any disagreements with respect to the calculations of Initial Closing Net Working Capital, Initial Closing Indebtedness, Initial Closing Cash or Initial Closing Unpaid Nutra Transaction Expenses. If, at the end of such period, they are unable to resolve such disagreements in writing, then any such remaining disagreements shall be resolved by an independent accounting or financial consulting firm of recognized national standing as may be mutually selected by Buyer and Seller (such firm, subject to the following proviso, the “Auditor”); provided, that if Seller and Buyer cannot agree on the Auditor, either party may request that the American Arbitration Association (the “AAA”) choose the Auditor, in which case the AAA’s choice of the Auditor will be binding uponand the expenses of the AAA will be shared 50% by Buyer and 50% by the GNC Parties. Each of Buyer and Seller shall promptly provide their respective assertions regarding Initial Closing Net Working Capital, Initial Closing Indebtedness, Initial Closing Cash and non-appealable byInitial Closing Unpaid Nutra Transaction Expenses and, to the extent relevant thereto, the Closing Balance Sheet in writing to the Auditor and to each other. The Auditor shall be instructed to render its determination with respect to such disagreements as soon as reasonably possible (which the Parties agree should not be later than thirty (30) days following the day on which the disagreement is referred to the Auditor). The Auditor shall base its determination solely on (i) the written submissions of the Parties and their respective successors shall not conduct an independent investigation and assigns for all purposes (ii) the extent (if any) to which Initial Closing Net Working Capital, Initial Closing Indebtedness, Initial Closing Cash or Initial Closing Unpaid Nutra Transaction Expenses require adjustment (only with respect to the remaining disagreements submitted to the Auditor) in order to be determined in accordance with Section 2.08(b) (including the definitions of this Agreement, and not subject to collateral attack for any reason absent manifest error or fraudthe defined terms used in Section 2.08(b)). The determination of the Auditor shall be final, conclusive and binding on the parties. All fees and expenses of the Independent Actuary arising from such arbitration Auditor relating to the work, if any, to be performed by the Auditor hereunder shall be paid borne pro rata as between Buyer, on the one hand, and Seller, on the other hand, in proportion to the allocation of the dollar value of the amounts in dispute as between Buyer and Seller (set forth in the written submissions to the Auditor) made by the Parties pro rata based Auditor such that the party prevailing on where the Independent Actuary’s determination greater dollar value of such disputes pays the lesser proportion of the New Reinsurance Premium falls in comparison to fees and expenses. For example, if Seller challenges items underlying the amount claimed by ▇▇▇▇▇ calculations of Initial Closing Net Working Capital, Initial Closing Indebtedness, Initial Closing Cash and Initial Closing Unpaid Nutra Transaction Expenses in the Final Closing Statement net amount of $1,000,000, and the amount claimed by Auditor determines that Buyer has a valid claim for $400,000 of the Reinsurer in $1,000,000, Buyer shall bear 60% of the True-Up Dispute Noticefees and expenses of the Auditor and the GNC Parties shall bear the remaining 40% of the fees and expenses of the Auditor.
(d) If The “Adjustment Amount,” which may be positive or negative, shall mean (i) 57.14% multiplied by (the New Reinsurance Premium Initial Closing Net Working Capital (as finally determined in accordance with Section 2.08(c)), minus Estimated Initial Closing Net Working Capital), plus (ii) the Estimated Initial Closing Indebtedness, minus Initial Closing Indebtedness (as finally determined in accordance with Section 2.08(c))), plus (iii) 57.14% multiplied by (the Initial Closing Cash (as finally determined in accordance with Section 2.08(c)), minus Estimated Initial Closing Cash), plus (iv) Estimated Unpaid Nutra Transaction Expenses, minus Initial Closing Unpaid Nutra Transaction Expenses (as finally determined in accordance with Section 2.08(c)). If the Adjustment Amount is a positive number, then the Preliminary Purchase Price shall be increased by the Adjustment Amount, and if the Adjustment Amount is a negative number, then the Preliminary Purchase Price shall be decreased by the absolute value of the Adjustment Amount (such adjusted Preliminary Purchase Price, the “Final Purchase Price”). The Adjustment Amount shall be paid in accordance with Section 2.08(e) and shall be deemed an adjustment for Tax purposes to the Preliminary Purchase Price.
(e) If the Adjustment Amount is a negative number, the GNC Parties shall promptly (but in any event within five (5) Business Days) pay or cause to be paid such amount to Buyer (or its designee(s)), in cash. If the Adjustment Amount is a positive number, subject to Section 9.07, Buyer shall promptly (but in any event within five (5) Business Days) pay such amount to Seller (or its designee(s)), in cash. Any payment pursuant to this Section 3.3 is (i2.08(e) greater than shall be made by Buyer or the Estimated New Reinsurance Premium (such differenceGNC Parties, a “Positive Adjustment Amount”), then Aspen shall pay to as the Reinsurer (or to the applicable Trust Accounts, to the extent that the Reinsurer’s Posted Collateral is less than the Initial Required Collateral Amount)case may be, by wire transfer of immediately available funds to one or more accounts designated in writing by the Reinsurer, the Positive Adjustment Amount within five (5) Business Days following of the final determination of the New Reinsurance Premium pursuant Adjustment Amount in accordance with Section 2.08(c) to this Section 3.3 such account or accounts of such other Party as may be designated by such other Party in writing. In the event of a failure to timely make such payment, interest shall accrue on such amount for the period commencing on the payment due date through the date on which such payment is made calculated at the Prime Rate. Such interest shall be payable at the same time as the payment to which it relates and shall be calculated daily on the basis of a year of three hundred and sixty-five (ii365) less than days and the Estimated New Reinsurance Premium (actual number of days elapsed. Further, in the absolute event of a failure by the GNC Parties to make such payment, Buyer shall have the right to withhold an amount equal to the aggregate dollar value of such difference, Adjustment Amount against any future Special Distributions or any Final Subsequent Purchase Price on a “Negative Adjustment Amount”), then Aspen shall reduce the Funds Withheld Account Balance by the Negative Adjustment Amountdollar-for-dollar basis.
Appears in 1 contract
Post-Closing Adjustment. (a) No later than fortyWithin one-five hundred twenty (45120) days following after the Closing Date, Aspen the Purchaser shall deliver prepare (in accordance with US GAAP) and cause to be delivered to the Reinsurer Vendor a detailed written statement in the same form as the Closing Statement (the “Final Closing Statement”) setting forth, in reasonable detail, the Purchaser’s good faith calculations of the Closing Working Capital, Indebtedness and Transaction Expenses and also setting forth Aspenthe Purchaser’s good faith calculation of (i) the New Reinsurance Premium (including Final Cash Consideration based on 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 Dateforegoing, together with all accounting, actuarial and other data and supporting documentation reasonably necessary for required to support the Reinsurer to review ▇▇▇▇▇’s proposed final calculations of such amountscontained in the Final Closing Statement.
(b) Upon If the Estimated Cash Consideration is greater than the Final Cash Consideration (as finally determined in accordance with this Section 2.4), then the Vendor shall pay the amount of such excess to the Purchaser (a “Post-Closing Reduction Amount”) by way of wire transfer to an account designated by the Purchaser. If the Estimated Cash Consideration is equal to the Final Cash Consideration (as finally determined in accordance with this Section 2.4), there shall be no adjustment made to the Final Cash Consideration or otherwise pursuant to this Section 2.4). If the Estimated Cash Consideration is less than the Final Cash Consideration (as finally determined in accordance with this Section 2.4), then the Purchaser shall pay the amount of such difference to the Vendor (a “Post-Closing Increase Amount”). The parties agree however that any increase or decrease in the Final Cash Consideration attributable solely to an increase or decrease in Closing Working Capital shall not exceed $106,500. The parties agree to treat any Post-Closing Reduction Amount or any Post-Closing Increase Amount as an adjustment to the Final Cash Consideration unless otherwise required by applicable Law. Any payments or receipts made pursuant to this Section 2.4 shall be treated as an adjustment to the Purchase Price by the parties for Tax purposes, unless otherwise required by Law.
(c) After receipt of the Final Closing Statement, the Reinsurer Vendor shall have thirty (30) days (the “Review Period”) to review the Final Closing Statement. During the Review Period, the Vendor and its authorized Representatives will be given accountant shall have reasonable access upon reasonable prior written notice during normal business hours to all accounting, actuarial the personnel and other data and documentation related to Representatives of the Purchaser involved in the preparation of the Final Closing Statement for the purpose ofStatement, and to any documents, schedules or working papers used by them in 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 preparation 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.
(cd) If Aspen and On or before the Reinsurer are unable to resolve all disagreements with respect last day of the Review Period, the Vendor may object to the Final Closing Statement by delivering to the Purchaser a notice in writing setting forth the Vendor’s objections in reasonable detail, indicating each disputed item or amount and the basis for each such objection thereto (the “Objection Notice”). If the Vendor fails to deliver the Objection Notice within the Review Period, the Purchaser’s Final Closing Statement shall be deemed to have been accepted by the Vendor and shall be final and binding and used in computing the Post-Closing Reduction Amount or Post-Closing Increase Amount, as applicable.
(e) If the Purchaser and the Vendor are unable to resolve any Objection Notice 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 such submission. The Independent Actuary shall decide all matters relating to the procedures to be followed for resolution delivery of the disputeObjection Notice, including those relating to then the submission and receipt of information and documents; provided, however, that at the request of either Aspen or the Reinsurer, a meeting shall be held at which the Parties may present their views, that both Aspen Purchaser and the Reinsurer Vendor shall have equal access to follow the Independent Actuary, and that all information and documents which either Party delivers or makes available to the Independent Actuary shall be furnished to the other Party as well. The review by the Independent Actuary shall be limited solely to the disputed items (and any items affected thereby) and amounts in the True-Up Dispute Notice that remain unresolved. Any determination by the Independent Actuary shall not be outside the range defined by the respective amounts in the Final Closing Statement and the True-Up Dispute Notice, and such determination shall be final and binding upon, and non-appealable by, the Parties and their respective successors and assigns for all purposes of this Agreement, and not subject to collateral attack for any reason absent manifest error or fraud. The fees and expenses of the Independent Actuary arising from such arbitration shall be paid by the Parties pro rata based on where the Independent Actuary’s determination of the New Reinsurance Premium falls in comparison to the amount claimed by ▇▇▇▇▇ in the Final Closing Statement and the amount claimed by the Reinsurer in the True-Up Dispute Notice.
(d) If the New Reinsurance Premium as finally determined pursuant to this Section 3.3 is (i) greater than the Estimated New Reinsurance Premium (such difference, a “Positive Adjustment Amount”), then Aspen shall pay to the Reinsurer (or to the applicable Trust Accounts, to the extent that the Reinsurer’s Posted Collateral is less than the Initial Required Collateral Amount), by wire transfer of immediately available funds to one or more accounts designated in writing by the Reinsurer, the Positive Adjustment Amount within five (5) Business Days following final determination of the New Reinsurance Premium pursuant to this Section 3.3 or (ii) less than the Estimated New Reinsurance Premium (the absolute value of such difference, a “Negative Adjustment Amount”), then Aspen shall reduce the Funds Withheld Account Balance by the Negative Adjustment Amount.dispute resolution procedure set forth at Schedule B.
Appears in 1 contract
Post-Closing Adjustment. (a) No later than forty-five (45) The Closing Balance Sheet will be prepared and finally determined as provided by this Section 2.8, whereupon all references herein to the "Closing Balance Sheet" will mean the same as so finally determined. Within 45 days following Closing, Buyer will prepare the Closing Date, Aspen shall Balance Sheet and deliver to the Reinsurer a detailed statement in the same form as to Seller. Buyer will cause the Closing Statement (Balance Sheet to be derived from the “Final Closing Statement”) setting forth Aspen’s good faith calculation Books and Records of (i) Seller and the New Reinsurance Premium (including Seller Affiliates, and to present fairly the New Reinsurance Premium Accrued InterestTransferred Assets, the Roll-forward Amount Assumed Liabilities and the ULAE Reimbursement Amount) and (ii) results of the Initial Required Collateral Amount, in each case, Pre- Closing Inventory Count as of the Closing Date, together in accordance with all accountingGAAP and, 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 forconsistent with GAAP, verifying the Final Closing Statement; providedSeller's policies, that no independent accountants or independent actuaries of Aspen shall be required to make any work papers available except as noted in such footnotes to the Reinsurer unless Closing Balance Sheet as are consistent with 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 footnotes 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 such submission. The Independent Actuary shall decide all matters relating to the procedures to be followed for resolution of the dispute, including those relating to the submission and receipt of information and documentsSeptember Balance Sheet; provided, however, that at the request of either Aspen Closing Balance Sheet will not reflect any Liability for accrued payroll payable through the Closing Date to U.S. or the Reinsurer, a meeting shall be held at which the Parties may present their views, that both Aspen and the Reinsurer shall have equal access non-U.S. employees to the Independent Actuaryextent that Seller or any of its Affiliates has (whether before or after the Closing Date) made payment therefor directly to any employee.
(b) Within 60 days after the delivery of the Closing Balance Sheet, and that all information and documents the parties will mutually agree on the contents of the Closing Balance Sheet, which either Party delivers or makes available to the Independent Actuary shall be furnished to the other Party as well. The review by the Independent Actuary shall be limited solely to the disputed items (and any items affected thereby) and amounts in the True-Up Dispute Notice that remain unresolved. Any determination by the Independent Actuary shall not be outside the range defined by the respective amounts in the Final Closing Statement and the True-Up Dispute Notice, and such determination shall will then be final and binding upon, and non-appealable by, upon the Parties and their respective successors and assigns parties for all purposes purposes. Failing such mutual agreement within such period, either party may submit the Closing Balance Sheet, or the resolution of only such item(s) thereof as are in dispute, to Ernst & Young LLP or such other nationally recognized firm of independent public accountants agreed upon by Seller and Buyer, for computation, verification or resolution in accordance with the provisions of this Agreement. Buyer and Seller will make readily available to such firm all relevant Books and Records (including work papers of a party's independent public accountants) as such firm reasonably requests. Such firm's computation or verification of the Closing Balance Sheet or resolution of such disputed item(s) thereof (as the case may be), which Buyer and Seller will instruct such firm to deliver to them within 30 days after submission to such firm, will be final and binding upon the parties for all purposes, and not subject to collateral attack for any reason absent manifest error or fraud. The such firm's fees and expenses therefor will be borne by the non-prevailing party or, in the event that each party prevails on some of the Independent Actuary arising from issues in dispute, will be shared proportionately, as determined by such arbitration shall firm. The Closing Balance Sheet, as so finally determined, will be paid by the Parties pro rata based on where the Independent Actuary’s determination of the New Reinsurance Premium falls in comparison to the amount claimed by ▇▇▇▇▇ in the Final Closing Statement and the amount claimed by the Reinsurer in the True-Up Dispute Notice.
(d) If the New Reinsurance Premium annexed hereto as finally determined pursuant to this Section 3.3 is (i) greater than the Estimated New Reinsurance Premium (such difference, a “Positive Adjustment Amount”), then Aspen shall pay to the Reinsurer (or to the applicable Trust Accounts, to the extent that the Reinsurer’s Posted Collateral is less than the Initial Required Collateral Amount), by wire transfer of immediately available funds to one or more accounts designated in writing by the Reinsurer, the Positive Adjustment Amount within five (5) Business Days following final determination of the New Reinsurance Premium pursuant to this Section 3.3 or (ii) less than the Estimated New Reinsurance Premium (the absolute value of such difference, a “Negative Adjustment Amount”), then Aspen shall reduce the Funds Withheld Account Balance by the Negative Adjustment Amount.Schedule 2.8
Appears in 1 contract
Sources: Asset Purchase Agreement (Roper Industries Inc /De/)
Post-Closing Adjustment. (ai) No later than forty-five (45) Within 45 days following after the Closing Date, Aspen Parent shall prepare and deliver to the Reinsurer Stockholder Representative a detailed statement, which statement shall be substantially in the same form as of Section 2.13 of the Closing Statement Disclosure Schedules (the “Final Closing Statement”) setting forth Aspen), attaching the following items and certifying as to Parent’s good faith preparation and calculation of the following items:
(iA) an unaudited consolidated balance sheet of Target as of 11:59 P.M., New York City, New York time, on the Closing Date (the “Closing Balance Sheet”);
(B) the New Reinsurance Premium Closing Working Capital based on the Closing Balance Sheet, together with a calculation of the variance between the Estimated Closing Working Capital and Closing Working Capital;
(C) the Closing Accrued Tax Amount (including each component item), together with a calculation of the New Reinsurance Premium variance between the Estimated Closing Accrued Interest, the Roll-forward Tax Amount and the ULAE Reimbursement Closing Accrued Tax Amount;
(D) the Closing Indebtedness (including each component item), together with a calculation of the variance between the Estimated Closing Indebtedness and the Closing Indebtedness; and
(E) a calculation of the Post-Closing Adjustment.
(ii) After each of the Initial Required Collateral Closing Working Capital, Closing Accrued Tax Amount, Closing Indebtedness has been finally determined in accordance with this Section 2.13 (the Closing Working Capital, Closing Accrued Tax Amount, Closing Indebtedness, in each case, as of so finally determined being referred to herein as the “Final Closing DateWorking Capital”, together with all accounting“Final Closing Accrued Tax Amount”, actuarial and other data and documentation reasonably necessary for “Final Closing Indebtedness”), the Reinsurer Aggregate Merger Consideration shall be, if necessary, further adjusted to review ▇▇▇▇▇’s proposed final calculations of such amounts.
reflect the Post-Closing Adjustment. The “Post-Closing Adjustment” shall be an amount equal to (bA) Upon receipt the sum of the Final Closing StatementWorking Capital, 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 minus the Final Closing Statement for the purpose ofAccrued Tax Amount, and to the extent reasonably necessary for, verifying minus the Final Closing Statement; providedIndebtedness, that no independent accountants minus (B) the sum of the Estimated Closing Working Capital, minus the Estimated Closing Accrued Tax Amount, and minus the Estimated Closing Indebtedness. If the Post-Closing Adjustment is a positive number, Parent shall pay (or independent actuaries of Aspen shall cause the Surviving Corporation to pay) to the Stockholders (on a pro rata basis in accordance with their respective Participating Percentages) an amount equal to the Post-Closing Adjustment. If the Post-Closing Adjustment is a negative number, Parent shall be required entitled to make any work papers available payment of an amount equal to the Reinsurer unless Post-Closing Adjustment from 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 amountsEscrow Account.
(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 such submission. The Independent Actuary shall decide all matters relating to the procedures to be followed for resolution of the dispute, including those relating to the submission and receipt of information and documents; provided, however, that at the request of either Aspen or the Reinsurer, a meeting shall be held at which the Parties may present their views, that both Aspen and the Reinsurer shall have equal access to the Independent Actuary, and that all information and documents which either Party delivers or makes available to the Independent Actuary shall be furnished to the other Party as well. The review by the Independent Actuary shall be limited solely to the disputed items (and any items affected thereby) and amounts in the True-Up Dispute Notice that remain unresolved. Any determination by the Independent Actuary shall not be outside the range defined by the respective amounts in the Final Closing Statement and the True-Up Dispute Notice, and such determination shall be final and binding upon, and non-appealable by, the Parties and their respective successors and assigns for all purposes of this Agreement, and not subject to collateral attack for any reason absent manifest error or fraud. The fees and expenses of the Independent Actuary arising from such arbitration shall be paid by the Parties pro rata based on where the Independent Actuary’s determination of the New Reinsurance Premium falls in comparison to the amount claimed by ▇▇▇▇▇ in the Final Closing Statement and the amount claimed by the Reinsurer in the True-Up Dispute Notice.
(d) If the New Reinsurance Premium as finally determined pursuant to this Section 3.3 is (i) greater than the Estimated New Reinsurance Premium (such difference, a “Positive Adjustment Amount”), then Aspen shall pay to the Reinsurer (or to the applicable Trust Accounts, to the extent that the Reinsurer’s Posted Collateral is less than the Initial Required Collateral Amount), by wire transfer of immediately available funds to one or more accounts designated in writing by the Reinsurer, the Positive Adjustment Amount within five (5) Business Days following final determination of the New Reinsurance Premium pursuant to this Section 3.3 or (ii) less than the Estimated New Reinsurance Premium (the absolute value of such difference, a “Negative Adjustment Amount”), then Aspen shall reduce the Funds Withheld Account Balance by the Negative Adjustment Amount.
Appears in 1 contract
Sources: Merger Agreement (Teladoc, Inc.)
Post-Closing Adjustment. (a) No later than forty-five Within sixty (4560) days following after the Closing Date, Aspen Buyer shall prepare and deliver to Seller:
(i) an unaudited consolidated balance sheet of the Reinsurer Company and the Company Subsidiaries, taken as a detailed statement in whole (the same form “Final Closing Balance Sheet”), as of and at the close of business on the date immediately prior to the Closing Statement Date; and
(ii) a final 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 and at the close of business on the date immediately prior to the Closing Date, together reflecting Buyer’s calculation of:
1) the Final Net Working Capital, Closing Date Cash, Closing Date Indebtedness and Company Transaction Expenses;
2) the difference between the Preliminary Purchase Price and the Estimated Final Purchase Price shown on the Final Closing Statement (determined in accordance with all accountingSection 2.02 by substituting Buyer’s calculation of the Final Net Working Capital, actuarial Closing Date Cash, Closing Date Indebtedness and other data and documentation reasonably necessary Company Transaction Expenses amounts shown on the Final Closing Statement for those previously appearing on the Reinsurer to review ▇▇▇▇▇’s proposed Preliminary Closing Statement); and
3) the resulting calculation of the final calculations of such amountsPurchase Price calculated in accordance with Section 2.02 (the “Estimated Final Purchase Price”).
(b) Upon receipt of The Final Closing Balance Sheet and Final Closing Statement shall be prepared in accordance with the Final Calculation Principles. Nothing in this Section 2.06 is intended to be used to adjust for errors, omissions or inconsistencies that may be found with respect to the Financial Statements, the Balance Sheet, the Preliminary Closing Statement and the Sample Preliminary Closing Statement, or any actual or alleged failure of the Reinsurer and its authorized Representatives will Financial Statements, the Balance Sheet, the Preliminary Closing Statement or the Sample Preliminary Closing Statement to be given reasonable access prepared in accordance with GAAP. Buyer shall not be permitted to all accountingintroduce different accounting principles, actuarial and other data and documentation related to procedures, policies, practices, estimates, judgments or methodologies in the preparation of the Final Closing Statement for or 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 determination of the Final Net Working Capital, Closing StatementDate Cash, Closing Date Indebtedness or Company Transaction Expenses from 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 amountsCalculation Principles.
(c) If Aspen and Seller may dispute Buyer’s calculation of the Reinsurer are unable to resolve all disagreements with respect to Final Closing Balance Sheet or the Final Closing Statement within thirty (30collectively, the “Final Closing Documents”) days following ▇▇▇▇▇’s receipt (or any element thereof) by notifying Buyer in writing, setting forth in reasonable detail the particulars of a True-Up Dispute Notice such disagreement (the “True-up Dispute Cooling-Off PeriodNotice of Objection”), the items and amounts in dispute shall be submitted for review to the Independent Actuary for final determination within forty-five (45) days after such submission. The Independent Actuary shall decide all matters relating to the procedures to be followed for resolution Seller’s receipt of the disputeFinal Closing Documents. Any item or amount as to which no dispute is raised in the Notice of Objection will be final, including those relating 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 Seller does not deliver a Notice of Objection to the submission and receipt of information and documents; providedBuyer within such forty-five (45) day period, however, that at the request of either Aspen or the Reinsurer, a meeting Seller shall be held at which deemed to have accepted Buyer’s calculation of the Parties may present their views, that both Aspen and the Reinsurer shall have equal access to the Independent Actuary, and that all information and documents which either Party delivers or makes available to the Independent Actuary shall be furnished to the other Party as well. The review by the Independent Actuary shall be limited solely to the disputed items (and any items affected thereby) and amounts in the True-Up Dispute Notice that remain unresolved. Any determination by the Independent Actuary shall not be outside the range defined by the respective amounts Estimated Final Purchase Price set forth in the Final Closing Statement Documents (the Purchase Price as finally determined in accordance with this Section 2.06, the “Final Purchase Price”). In connection with the review by Seller of the Final Closing Documents, Buyer shall (i) permit Seller and its Representatives to have reasonable access to the books, records and other documents (including work papers, schedules, financial statements and memoranda) pertaining to or used in connection with the preparation of the Final Closing Documents and the True-Up Dispute Noticecalculation of the Final Net Working Capital, Closing Date Cash, Closing Date Indebtedness and Company Transaction Expenses and provide Seller with copies thereof and (ii) provide Seller and its Representatives reasonable access to employees and accountants of Buyer, the Company and the Company Subsidiaries as reasonably requested by Seller to verify the accuracy of the Final Closing Documents. Buyer shall cause the employees and accountants of Buyer, the Company and the Company Subsidiaries to cooperate in all reasonable respects with Seller and its Representatives in connection with their review of such work papers and other documents and information relating to the calculation of the Final Net Working Capital, Closing Date Cash, Closing Date Indebtedness and Company Transaction Expenses as Seller may reasonably request and that are available to Buyer and its Subsidiaries, including the Company and the Company Subsidiaries, or any of their respective accountants. In the event that a Notice of Objection is timely delivered, Buyer and Seller shall use their respective commercially reasonable efforts for a period of sixty (60) days after Buyer’s receipt of the Notice of Objection, or such longer period as the Parties may agree in writing, to resolve any disagreements set forth in the Notice of Objection.
(d) If Buyer and Seller are unable to resolve such disagreements within such sixty (60) day period (or such longer period as the Parties shall have agreed in writing), then KPMG LLP (or such other independent accounting firm of recognized national standing as may be mutually selected by Buyer and Seller) (the “Independent Firm”) shall be appointed, as an expert and not an arbitrator, to resolve any items that remain in dispute at the end of such period (the “Unresolved Items”), but in no case shall the Independent Firm review or propose any resolution for any matters that have not been raised in the Notice of Objection. If KPMG LLP is unwilling or unable to serve in such capacity and the Parties are not able to mutually select an alternative accounting firm that is willing and able to serve in such capacity, then Seller shall within ten (10) days deliver to Buyer a listing of three (3) other accounting firms of nationally recognized standing (and none of which have worked in the past three (3) years for Seller or Buyer or any of their respective Affiliates) and Buyer shall within ten (10) days after receipt of such list, select one of such three (3) accounting firms to act as the Independent Firm.
(e) Buyer and Seller shall instruct the Independent Firm to determine as promptly as practicable, and in any event within ninety (90) days after the date on which such determination shall be final and binding upondispute is referred to the Independent Firm, and non-appealable by, based solely on the Parties and their respective successors and assigns for all purposes provisions of this Agreement, and the written presentations by Seller and Buyer, and not subject on an independent review, whether and to collateral attack what extent (if any) the calculations set forth in the Final Closing Documents require adjustment. In resolving any Unresolved Item, the Independent Firm (i) may not assign a value to any item greater than the greatest value for such item claimed by either Party or less than the smallest value for such item claimed by either Party, (ii) may not take oral testimony from the Parties hereto or any reason absent manifest error or fraudother Person and (iii) shall not consider any facts that have occurred after the Closing Date. The Seller and Buyer shall give each other copies of any written submissions at the same time as they are submitted to the Independent Firm. Buyer shall bear and pay a percentage of the fees and expenses of the Independent Actuary arising from such arbitration Firm that is equal to the percentage of the total dollar amount of changes to the Final Purchase Price proposed by Seller that are successful, and Seller shall bear and pay a percentage of the fees and expenses of the Independent Firm that is equal to the percentage of the total dollar amount of changes to the Final Purchase Price proposed by Seller that are not successful, in each case, as determined by the Independent Firm (provided that fees and expenses of the Independent Firm for which Seller is responsible shall be paid by solely from the Parties pro rata based on where the Independent Actuary’s Escrow Account). The determination of the New Reinsurance Premium falls Independent Firm shall be set forth in comparison a written statement delivered to the amount claimed by ▇▇▇▇▇ in Parties and shall be final, conclusive and binding on the Parties, absent fraud or manifest error.
(f) If the Final Closing Statement and shows that an amount is due to Buyer (because the Preliminary Purchase Price is greater than the Final Purchase Price), Buyer shall be entitled to payment of such amount claimed by solely out of the Reinsurer in the True-Up Dispute Notice.
(d) Escrow Account. If the New Reinsurance Premium as finally determined Final Closing Statement shows that an amount is due to Seller (because the Preliminary Purchase Price is less than the Final Purchase Price), Buyer shall promptly pay such excess to Seller, in cash. Any payment pursuant to this Section 3.3 is (i2.06(f) greater than shall be made by Buyer or, upon the Estimated New Reinsurance Premium (such differencereceipt of joint written instructions in accordance with the terms and provisions of the Escrow Agreement, a “Positive Adjustment Amount”)the Escrow Agent, then Aspen shall pay to as the Reinsurer (or to the applicable Trust Accounts, to the extent that the Reinsurer’s Posted Collateral is less than the Initial Required Collateral Amount)case may be, by wire transfer of immediately available funds to one or more accounts designated in writing by the Reinsurer, the Positive Adjustment Amount within five (5) Business Days following final determination to such account or accounts of Seller or Buyer, as applicable, as may be designated by Seller or Buyer in writing. In the New Reinsurance Premium pursuant event of a failure to this Section 3.3 or timely make such payment, interest shall accrue on such amount for the period commencing on the payment due date through the date on which such payment is made calculated at the Prime Rate. Such interest shall be payable at the same time as the payment to which it relates and shall be calculated daily on the basis of a year of three hundred and sixty-five (ii365) less than days and the Estimated New Reinsurance Premium (the absolute value actual number of such difference, a “Negative Adjustment Amount”), then Aspen shall reduce the Funds Withheld Account Balance by the Negative Adjustment Amountdays elapsed.
Appears in 1 contract
Sources: Purchase and Sale Agreement (Intercontinental Hotels Group PLC /New/)
Post-Closing Adjustment. (a) No later than forty-five (45) Within 60 days following after the Closing Date, Aspen the Company and Buyer will prepare a report (the "Final Adjustments Report"), prepared in good faith and on a reasonable basis, setting forth in reasonable detail the adjustments described above including any adjustments based on Company's and Buyer's actual collection of the Customer Accounts Receivable and Other Receivables as of the date one day before such Report. The Final Adjustments Report shall deliver make such changes to the Reinsurer a detailed statement in the same form Preliminary Adjustments Report 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, are necessary to recalculate as of the Closing Date, together with Date 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 adjustments and prorations to the Purchase Price set forth herein (which were calculated in the Preliminary Adjustments Report generally as of the last day of the quarter prior to the Closing Statement, the Reinsurer Date). The Company and its authorized Representatives will be given Buyer shall provide each other with reasonable access to all accountingrecords which they have in their possession which pertain to such collections for the period after the Closing Date, actuarial and other data and documentation related which are necessary for a review of the Post-Period Adjustment Report. The Purchase Price as determined pursuant to the preparation Preliminary Adjustments Report shall be compared to the Purchase Price as determined pursuant to the Final Adjustments Report and, within 10 business days following acceptance of the Final Closing Statement for Adjustments Report by Buyer and the purpose ofCompany, and any adjustment amount to be paid pursuant to such report shall be paid to the extent reasonably necessary for, verifying proper party from 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 Escrow described in form and substance reasonably acceptable to such independent accountants or independent actuaries, as applicableSection 2.5. 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 To the extent that such amounts are affected by any disputed amounts.
(c) If Aspen and the Reinsurer parties are unable to resolve all disagreements with respect to agree on the Final Adjustments Report within 90 days after the Closing Statement within thirty (30) days following ▇▇▇▇▇’s receipt of a True-Up Dispute Notice (Date, all issues in the “True-up Dispute Cooling-Off Period”), the items and amounts in dispute Report which are not agreed upon shall be submitted for review to the Independent Actuary for final determination within forty-five (45) days after such submission. The Independent Actuary shall decide all matters relating to the procedures to be followed for resolution national accounting firm of Deloitte & Touche, LLP together with a written statement of the disputeissues by Buyer and by the Company, including those relating to the submission and receipt of information and documents; provided, however, that at the request of either Aspen or the Reinsurer, a meeting shall be held at which the Parties may present their views, that both Aspen and the Reinsurer shall have equal access to the Independent Actuary, and that all information and documents which either Party delivers or makes available to the Independent Actuary shall be furnished to the other Party as well. The review by the Independent Actuary shall be limited solely to the disputed items (and any items affected thereby) and amounts in the True-Up Dispute Notice that remain unresolved. Any determination by the Independent Actuary shall not be outside the range defined by the respective amounts in the Final Closing Statement and the True-Up Dispute Notice, and of such determination accounting firm shall be final and binding upon, and non-appealable by, the Parties and their respective successors and assigns for on all purposes of this Agreement, and not subject to collateral attack for any reason absent manifest error or fraud. The fees and expenses of the Independent Actuary arising from such arbitration shall be paid by the Parties pro rata based on where the Independent Actuary’s determination of the New Reinsurance Premium falls in comparison to the amount claimed by ▇▇▇▇▇ in the Final Closing Statement and the amount claimed by the Reinsurer in the True-Up Dispute Noticeparties.
(d) If the New Reinsurance Premium as finally determined pursuant to this Section 3.3 is (i) greater than the Estimated New Reinsurance Premium (such difference, a “Positive Adjustment Amount”), then Aspen shall pay to the Reinsurer (or to the applicable Trust Accounts, to the extent that the Reinsurer’s Posted Collateral is less than the Initial Required Collateral Amount), by wire transfer of immediately available funds to one or more accounts designated in writing by the Reinsurer, the Positive Adjustment Amount within five (5) Business Days following final determination of the New Reinsurance Premium pursuant to this Section 3.3 or (ii) less than the Estimated New Reinsurance Premium (the absolute value of such difference, a “Negative Adjustment Amount”), then Aspen shall reduce the Funds Withheld Account Balance by the Negative Adjustment Amount.
Appears in 1 contract
Sources: Asset Purchase Agreement (General Communication Inc)
Post-Closing Adjustment. (a) No later than forty-five one hundred eighty (45180) days following after the Closing Date, Aspen the Buyer shall deliver to the Reinsurer Seller a detailed statement in the same form as final proposed calculation of the Closing Statement Prorations (the “Proposed Final Closing StatementProrations”) 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 same, Seller will have thirty (30) days to review the Proposed Final Closing StatementProrations and either confirm in writing their agreement with, or dispute of, 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 Proposed Final Closing Statement for Prorations. If Seller sends written notice to Buyer disputing the purpose of, and to the extent reasonably necessary for, verifying the Proposed Final Closing Statement; providedProrations (which notice shall state in sufficient detail the basis of Seller’s objections), that no independent accountants or independent actuaries of Aspen shall be required the Parties will use their best efforts to make any work papers available to the Reinsurer unless the Reinsurer has signed a customary agreement relating to resolve such access to work papers in form and substance reasonably acceptable to such independent accountants or independent actuaries, as applicable. Within forty-five dispute within fifteen (4515) days of thereafter. If 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 Parties are unable to resolve all disagreements with respect such dispute within such period of time, the issues in dispute will be submitted in writing to the Final Closing Statement a mutually selected independent public accounting firm for a final determination. The determination of such accounting firm shall be made within thirty (30) days following ▇▇▇▇▇’s receipt of a True-Up Dispute Notice submission and will be final, binding, and conclusive on the Parties. The cost and expenses of any such independent public accounting firm will be shared fifty percent (50%) by Buyer and fifty percent (50%) by Seller. If Seller confirms its agreement in writing with the Proposed Final Closing Prorations or, alternatively, all disputes are finally resolved concerning the Proposed Final Closing Prorations, then the final version of the Proposed Final Closing Prorations will become the “True-up Dispute Cooling-Off PeriodFinal Closing Prorations”), the items and amounts in dispute shall be submitted for review to the Independent Actuary for final determination within forty-five (45) days after such submission. The Independent Actuary shall decide all matters relating to the procedures to be followed for resolution of the dispute, including those relating to the submission and receipt of information and documents; provided, however, that at the request of either Aspen or the Reinsurer, a meeting shall be held at which the Parties may present their views, that both Aspen and the Reinsurer shall have equal access to the Independent Actuary, and that all information and documents which either Party delivers or makes available to the Independent Actuary shall be furnished to the other Party as well. The review by the Independent Actuary shall be limited solely to the disputed items (and any items affected thereby) and amounts in the True-Up Dispute Notice that remain unresolved. Any determination by the Independent Actuary shall not be outside the range defined by the respective amounts in If the Final Closing Statement Prorations are different from the Estimated Closing Prorations, the Buyer and the True-Up Dispute Notice, and such determination Seller shall be final and binding upon, and non-appealable by, the Parties and their respective successors and assigns make payments to one another as is required for all purposes each party to receive its full share of this Agreement, and not subject to collateral attack for any reason absent manifest error or fraud. The fees and expenses of the Independent Actuary arising from such arbitration shall be paid by the Parties pro rata based on where the Independent Actuary’s determination of the New Reinsurance Premium falls in comparison to the amount claimed by ▇▇▇▇▇ in the Final Closing Statement and the amount claimed by the Reinsurer in the True-Up Dispute Notice.
(d) If the New Reinsurance Premium as finally determined pursuant Prorations due to this Section 3.3 is (i) greater than the Estimated New Reinsurance Premium (such difference, a “Positive Adjustment Amount”), then Aspen shall pay to the Reinsurer (or to the applicable Trust Accounts, to the extent that the Reinsurer’s Posted Collateral is less than the Initial Required Collateral Amount)it, by wire transfer of immediately available funds to one or more accounts designated in writing as directed by the ReinsurerBuyer or Seller, the Positive Adjustment Amount within five (5) Business Days following final determination of the New Reinsurance Premium pursuant to this Section 3.3 or (ii) less than the Estimated New Reinsurance Premium (the absolute value of such difference, a “Negative Adjustment Amount”), then Aspen shall reduce the Funds Withheld Account Balance by the Negative Adjustment Amountas applicable.
Appears in 1 contract
Post-Closing Adjustment. (a) No later than forty-five As promptly as possible, but in any event within ninety (4590) days following after the Closing Date, Aspen Parent shall prepare and deliver to the Reinsurer Securityholder Representative a detailed written statement in the same form as the Closing Statement (the “Final Post-Closing Statement”) setting forth AspenParent’s (i) good faith calculation of (iA) Cash as of the New Reinsurance Premium Effective Time (including “Preliminary Cash”), (B) an itemized list of each item of Indebtedness as of the New Reinsurance Premium Accrued InterestEffective Time (“Preliminary Indebtedness”), (C) Net Working Capital (in the Roll-forward Amount format of the Illustrative Calculation of Net Working Capital in Exhibit C) (“Preliminary Net Working Capital”) and the ULAE Reimbursement Amount(D) an itemized list of Transaction Expenses (“Preliminary Transaction Expenses”) and (ii) Parent’s resulting good faith calculation of the Initial Required Collateral AmountMerger Consideration (such amount, the “Preliminary Merger Consideration”). Parent shall provide to the Securityholder Representative, together with the Post-Closing Statement, such supporting documentation, information and calculations as are reasonably necessary for the Securityholder Representative to verify and determine the calculations and amounts set forth therein. Parent may not amend, supplement or otherwise modify the Post-Closing Statement at any time following delivery of such statement to the Securityholder Representative in accordance with this Section 2.09(a).
(b) The Parties acknowledge that the Estimated Closing Statement delivered by the Company to Parent pursuant to Section 2.08 will be prepared and delivered prior to the Closing Date and, therefore, the amounts set forth therein will be estimates and may be different than the actual amount of such items on the Closing Date. Accordingly, this Section 2.09 sets forth the process by which the amounts set forth in the Estimated Closing Statement may be adjusted solely to ensure that any such amount set forth in the Estimated Closing Statement reflects an adjustment only between the estimate thereof and the actual amount thereof.
(c) Upon receipt of the Post-Closing Statement, the Securityholder Representative shall have sixty (60) days (the “Review Period”) to review such Post-Closing Statement and related computations of Preliminary Cash, Preliminary Indebtedness, Preliminary Net Working Capital, Preliminary Transaction Expenses and the Preliminary Merger Consideration. Following the Closing through the date that the Final Closing Statement becomes final, binding and non-appealable in accordance with Section 2.09(e), Parent shall use commercially reasonable efforts to provide the Securityholder Representative, and any accountants, advisors or other representatives retained by the Securityholder Representative with such books, records and work papers of the Surviving Corporation and Parent that are reasonably related to the Securityholder Representative’s verification of the calculations of Cash, Indebtedness, Net Working Capital, and Transaction Expenses (subject to execution by the Securityholder Representative or its representatives of customary work access paper letters if requested by Parent’s accountants), and Parent shall, and shall cause its Affiliates (including the Surviving Corporation and its Subsidiaries), and its and their respective representatives, accountants and advisors to, reasonably cooperate with the Securityholder Representative and its representatives in connection with such review, including by making available personnel to the extent reasonably requested, in each case, as upon reasonable notice and during normal business hours. If the Securityholder Representative has accepted the Post-Closing Statement in writing or has not given written notice to Parent setting forth any objection of the Closing Date, together with all accounting, actuarial and other data and documentation reasonably necessary for the Reinsurer Securityholder Representative to review ▇▇▇▇▇’s proposed final calculations of such amounts.
(b) Upon receipt of the Final Post-Closing Statement, specifying in reasonable detail each item that the Reinsurer Securityholder Representative disputes (each, a “Disputed Item”), the amount in dispute for each such Disputed Item, the basis for such objection and its authorized Representatives will be given reasonable access to all accounting, actuarial and other data and documentation related the Securityholder Representative’s proposed modifications to the preparation Post-Closing Statement (such notice, the “Statement of Objections”) prior to the expiration of the Review Period, then such Post-Closing Statement shall be final, binding and non-appealable upon the Parties, and shall be deemed the Final Closing Statement for purposes of Section 2.09(e). The Securityholder Representative shall be deemed to have agreed with all other items and amounts contained in the purpose of, and Post-Closing Statement not so disputed by the Securityholder Representative.
(d) In the event that the Securityholder Representative delivers a Statement of Objections to Parent prior to the extent reasonably necessary forexpiration of the Review Period, verifying the Securityholder Representative and Parent shall negotiate in good faith to resolve any such Disputed Item within sixty (60) days following the receipt by Parent of the Statement of Objections (the “Consultation Period”). If the Securityholder Representative and Parent reach an agreement in writing as to any such Disputed Items within the Consultation Period, the amounts so agreed upon shall be final, binding and non-appealable upon the Parties and such agreement shall be deemed to be included in the Final Closing Statement; providedStatement for purposes of Section 2.09(e). If the Securityholder Representative and Parent are unable to reach an agreement in writing as to any such Disputed Item(s) within the Consultation Period, then either the Securityholder Representative or Parent may submit such matter an accounting firm of national stature and that no independent accountants or independent actuaries has extensive experience auditing public companies in the industry in which Parent operates as mutually agreed in writing by the Securityholder Representative and Parent (the “Settlement Accountant”) (provided that if the Securityholder Representative and Parent cannot agree on an accountant within ten (10) Business Days after the expiration of Aspen the Consultation Period, then the American Arbitration Association shall appoint the Settlement Accountant, who shall be required deemed acceptable to the Securityholder Representative and Parent), for resolution of those Disputed Items that the Securityholder Representative and Parent are unable to resolve (the “Unresolved Items”). If requested by the Settlement Accountant, each of the Securityholder Representative and P▇▇▇▇▇ agrees that it will enter into a customary engagement letter with the Settlement Accountant and provide customary indemnities in favor of the Settlement Accountant and otherwise on terms and conditions consistent with this Section 2.09. The Settlement Accountant shall act as an expert and not as an arbitrator, and shall only consider the Unresolved Items. If any Unresolved Item is referred to the Settlement Accountant, the Securityholder Representative, on the one hand, and Parent, on the other hand, shall prepare separate written reports of each such Unresolved Item and deliver such reports to the Settlement Accountant, and each other within fifteen (15) days after the date the Settlement Accountant is retained. Thereafter, each of the Securityholder Representative and Parent shall have ten (10) Business Days to deliver to the Settlement Accountant, and each other one written rebuttal thereto (if applicable). The failure of the Securityholder Representative or Parent to furnish a written report of the Unresolved Item to the Settlement Accountant or to furnish a response to the other Party’s initial written report shall constitute a waiver of such Party’s right to submit the same to the Settlement Accountant. The Settlement Accountant may not assign a value to any Unresolved Item greater than the greatest value for such Unresolved Item claimed by either Parent or the Securityholder Representative in the Post-Closing Statement and Statement of Objections, respectively, or less than the smallest value for such Unresolved Item claimed by either Parent or the Securityholder Representative in the Post-Closing Statement and Statement of Objections, respectively. The Securityholder Representative and Parent shall use their respective commercially reasonable efforts to cause the Settlement Accountant to resolve all disagreements as soon as practicable and in any event within thirty (30) days after the later of the submission of the (i) written reports and (ii) written rebuttals, if any; provided that the failure of the Settlement Accountant to deliver its determination within such time period shall not constitute a defense or objection to the finality or enforcement of such determination. The Settlement Accountant’s review and determination shall be (A) limited only to the reports, rebuttals and materials concerning the Unresolved Items prepared and submitted to the Settlement Accountant by the Securityholder Representative and Parent (i.e., not on the basis of an independent review), (B) based solely on such reports, rebuttals and materials submitted by the Securityholder Representative and Parent and the basis for the Securityholder Representative’s and Parent’s respective positions and (C) in accordance with the terms and procedures set forth in this Agreement, including the Accounting Principles (as defined herein) and the definitions of Cash, Indebtedness, Net Working Capital and Transaction Expenses contained herein. During the review by the Settlement Accountant, each of the Securityholder Representative and Parent shall use commercially reasonable efforts, and shall cause their respective Subsidiaries (including, in the case of Parent, the Company and its Subsidiaries) to use its commercially reasonable efforts, to each make available to the Settlement Accountant personnel and such information, books, records and work papers as may be reasonably requested by the Settlement Accountant to fulfill its obligations under this Section 2.09(d). A copy of all materials submitted to the Settlement Accountant shall be provided by the Securityholder Representative or Parent, as applicable, to the other Party in the dispute concurrently with the submission thereof to the Settlement Accountant; provided that the accountants of the Securityholder Representative or Parent, as applicable, shall not be obliged to make any work papers available to the Reinsurer unless the Reinsurer other Party except in accordance with such accountants’ normal disclosure procedures and then only after such other Party has signed a customary agreement relating to such access to work papers in form papers. Neither the Securityholder Representative nor Parent may disclose to the Settlement Accountant, and substance reasonably acceptable to such independent accountants the Settlement Accountant may not consider for any purpose, any settlement discussions or independent actuaries, as applicablesettlement offer(s) made by or on behalf of either the Securityholder Representative or Parent unless otherwise agreed by the Securityholder Representative and Parent. Within forty-five (45) days None of the ReinsurerSecurityholder Representative, Parent or any of their respective Affiliates shall have any ex parte communications or meetings with the Settlement Accountant regarding the subject matter hereof without the other Party’s receipt of the Final Closing Statementprior written consent. The Settlement Accountant shall have exclusive jurisdiction over, 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 resort 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 Settlement Accountant as final of the Final Closing Statement as determined by ▇▇▇▇▇. Any amounts not disputed provided in the True-Up Dispute Notice (if one is deliveredthis Section 2.09(d) shall be deemed to be accepted by the Reinsurer as finalonly recourse and remedy of the Parties against one another with respect to, except any disputes arising out of or relating to the extent calculation of, and any adjustments to, the Merger Consideration; provided that upon the determination of the Settlement Accountant, such amounts are affected by determination may be entered and enforced in any disputed amounts.
(c) If Aspen and the Reinsurer are unable to resolve all disagreements court of competent jurisdiction in accordance with Section 10.12. The final determination with respect to all Unresolved Items shall be set forth in a written statement by the Final Closing Statement within thirty (30) days following ▇▇▇▇▇’s receipt of a True-Up Dispute Notice (Settlement Accountant delivered to the “True-up Dispute Cooling-Off Period”)Securityholder Representative and Parent and, absent mathematical error promptly corrected by the Settlement Accountant or manifest error, the items and amounts in dispute shall be submitted for review to the Independent Actuary for final determination within forty-five (45) days after such submission. The Independent Actuary shall decide all matters relating to the procedures to be followed for resolution of the dispute, including those relating to dispute by the submission and receipt of information and documents; provided, however, that at the request of either Aspen or the Reinsurer, a meeting Settlement Accountant shall be held at which the Parties may present their viewsfinal, that both Aspen and the Reinsurer shall have equal access to the Independent Actuary, and that all information and documents which either Party delivers or makes available to the Independent Actuary shall be furnished to the other Party as well. The review by the Independent Actuary shall be limited solely to the disputed items (and any items affected thereby) and amounts in the True-Up Dispute Notice that remain unresolved. Any determination by the Independent Actuary shall not be outside the range defined by the respective amounts in the Final Closing Statement and the True-Up Dispute Notice, and such determination shall be final and binding upon, and non-appealable by, on the Parties and their respective successors and assigns for all purposes of this Agreement, and not subject to collateral attack for any reason absent manifest error or fraudParties. The fees costs and expenses of the Independent Actuary arising from such arbitration Settlement Accountant shall be paid borne by the Parties pro rata based on where Securityholder Representative and Parent in proportion to the Independent Actuarydifference between the Settlement Accountant’s determination of the New Reinsurance Premium falls in comparison to the amount claimed by ▇▇▇▇▇ in the Final Closing Statement Merger Consideration and the amount determination of the Merger Consideration claimed by the Reinsurer Securityholder Representative and Parent. For example, if Parent claims that the Merger Consideration is, in the True-Up Dispute Notice.
(d) If the New Reinsurance Premium as finally determined pursuant to this Section 3.3 is (i) greater than the Estimated New Reinsurance Premium (such differenceaggregate, a “Positive Adjustment Amount”), then Aspen shall pay to the Reinsurer (or to the applicable Trust Accounts, to the extent that the Reinsurer’s Posted Collateral is $1,000 less than the Initial Required Collateral Amount), by wire transfer of immediately available funds to one or more accounts designated in writing amount determined by the Reinsurer, Securityholder Representative and if the Positive Adjustment Amount within five (5) Business Days following final determination Settlement Accountant ultimately resolves the dispute by awarding to Parent an aggregate of $300 of the New Reinsurance Premium pursuant to this Section 3.3 or (ii) less than the Estimated New Reinsurance Premium (the absolute value of such difference, a “Negative Adjustment Amount”)$1,000 contested, then Aspen shall reduce the Funds Withheld Account Balance by costs and expenses of the Negative Adjustment AmountSettlement Accountant will be allocated thirty percent (30%) to the Securityholder Representative and seventy percent (70%) to Parent.
Appears in 1 contract
Sources: Merger Agreement (CareDx, Inc.)
Post-Closing Adjustment. (a) No later than forty-five Within ninety (4590) days following after the Closing Date, Aspen Buyer shall prepare and deliver to Parent:
(i) an unaudited combined balance sheet of the Reinsurer a detailed statement in IPG Entities (the same form “Final Closing Balance Sheet”) as of and at the close of business on the date immediately prior to the Closing Statement Date; and
(ii) a final closing statement (the “Final Closing Statement”) setting forth Aspenin reasonable detail Buyer’s good faith calculation of (iof:
1) the New Reinsurance Premium (including Final Net Operating Assets, Closing Date Cash, Closing Date Indebtedness and IPG Transaction Expenses;
2) the New Reinsurance Premium Accrued Interest, difference between the Roll-forward Amount Preliminary Purchase Price and the ULAE Reimbursement Amount) Purchase Price shown on the Final Closing Statement (determined in accordance with Section 2.02 by substituting the Final Net Operating Assets and (iiClosing Date Cash, Closing Date Indebtedness and IPG Transaction Expenses amounts shown on the Final Closing Statement for those previously appearing on the Preliminary Closing Statement); and
3) the Initial Required Collateral Amount, resulting final Purchase Price calculated in each case, as of accordance with Section 2.02 (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“Final Purchase Price”).
(b) Upon receipt The Final Closing Balance Sheet and Final Closing Statement shall be prepared in accordance with the Calculation Principles and this Agreement. Nothing in this Section 2.06 is intended to be used to adjust for errors, omissions or inconsistencies that may be found with respect to the Financial Statements or the Balance Sheet, or any actual or alleged failure of the Final Closing StatementFinancial Statements or the Balance Sheet to be prepared in accordance with GAAP. Buyer shall not be permitted to introduce different accounting principles, the Reinsurer and its authorized Representatives will be given reasonable access to all accountingprocedures, actuarial and other data and documentation related to policies, practices, estimates, judgments or methodologies in the preparation of the Final Closing Statement for or the purpose ofdetermination of Final Net Operating Assets, and to Closing Date Cash, Closing Date Indebtedness or IPG Transaction Expenses from the extent reasonably necessary for, verifying Calculation Principles.
(c) Parent may dispute Buyer’s calculation of the Final Closing StatementBalance Sheet and Final Closing Statement (collectively, the “Final Closing Documents”) (or any element thereof) by notifying Buyer in writing, setting forth in reasonable detail the particulars of such disagreement, including the basis therefor (the “Notice of Objection”), within forty-five (45) days after Parent’s receipt of the Final Closing Documents. 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 Purchase Price set forth in the Final Closing Documents. In the event that a Notice of Objection is timely delivered, Buyer and Parent shall use their respective commercially reasonable efforts for a period of sixty (60) days after Buyer’s receipt of the Notice of Objection, or such longer period as the Parties may agree in writing, to resolve any disagreements set forth in the Notice of Objection.
(d) If Buyer and Parent are unable to resolve such disagreements within such sixty (60) day period (or such longer period as the Parties shall have agreed in writing), then KPMG LLP (or such other independent accounting firm of recognized national standing as may be mutually selected by Buyer and Parent) (the “Independent Firm”) shall be appointed, as an expert and not an arbitrator, to resolve any items that remain in dispute at the end of such period (the “Unresolved Items”), but in no case shall the Independent Firm review or propose any resolution for any matters that have not been raised in the Notice of Objection. If KPMG LLP is unwilling or unable to serve in such capacity and the Parties are not able to mutually select an alternative accounting firm that is willing and able to serve in such capacity, then Parent shall within ten (10) days deliver to Buyer a listing of three (3) other accounting firms of nationally recognized standing (and none of which have worked in the past two (2) years for Parent or Buyer or any of Parent’s Affiliates or Buyer’s Subsidiaries or its equityholders and Buyer shall within ten (10) days after receipt of such list, select one of such three (3) accounting firms to act as the Independent Firm.
(e) Buyer and Parent shall instruct the Independent Firm to determine as promptly as practicable, and in any event within ninety (90) days after the date on which such dispute is referred to the Independent Firm, based solely on the provisions of this Agreement, and the written presentations by Parent and Buyer, and not on an independent review, whether and to what extent (if any) the calculations set forth in the Final Closing Documents require adjustment. In resolving any Unresolved Item, the Independent Firm (i) may not assign a value to any item greater than the greatest value for such item claimed by either Party or less than the smallest value for such item claimed by either Party, and (ii) may not take oral testimony from the Parties hereto or any other Person. Parent and Buyer shall give each other copies of any written submissions at the same time as they are submitted to the Independent Firm. Buyer shall bear and pay a percentage of the fees and expenses of the Independent Firm that is equal to the percentage of the total dollar amount of changes to the Final Purchase Price proposed by Parent that are successful, and Parent shall bear and pay a percentage of the fees and expenses of the Independent Firm that is equal to the percentage of the total dollar amount of changes to the Final Purchase Price proposed by Parent that are not successful, in each case, as determined by the Independent Firm. The determination of the Independent Firm shall be set forth in a written statement delivered to the Parties and shall be final, conclusive and binding on the Parties, absent fraud or manifest error.
(f) Each of Buyer, Sellers and Parent shall, and shall cause their respective Subsidiaries (including, in the case of Buyer, the IPG Entities) to (i) permit the other Parties and their Representatives to have reasonable access during normal business hours to their respective books, records and other documents (including work papers, schedules, financial statements and memoranda) pertaining to or used in connection with the preparation of the Preliminary Closing Statement or the Final Closing Documents, as applicable, and the calculation of the Net Operating Assets, Closing Date Cash, Closing Date Indebtedness and IPG Transaction Expenses and (ii) make such Party’s employees available to, and use its reasonable best efforts to cause its accountants to cooperate with, the other Parties to verify the accuracy of the Preliminary Closing Statement or Final Closing Documents, as applicable; provided, that no independent the accountants or independent actuaries of Aspen a Party shall not be required obliged to make any work papers available to the Reinsurer unless the Reinsurer any other Party or its Representatives except in accordance with such accountant’s normal disclosure procedures, after such Person 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 accountants.
(45g) days of If the Reinsurer’s receipt of Final Closing Statement shows that an amount is due to Buyer (because the Preliminary Purchase Price is greater than the Final Purchase Price shown on the Final Closing Statement), the Reinsurer may deliver written notice Sellers shall promptly pay such difference to Buyer, in cash. If the Final Closing Statement shows that an amount is due to the Sellers (because the “True-Up Dispute Notice”) to Aspen of any objections, specifying in reasonable detail any contested amounts and Preliminary Purchase Price is less than the basis therefor, which the Reinsurer may have to Final Purchase Price shown on the Final Closing Statement. The failure of ), Buyer shall promptly pay such excess to 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 ▇▇▇▇▇Sellers, in cash. 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 such submission. The Independent Actuary shall decide all matters relating to the procedures to be followed for resolution of the dispute, including those relating to the submission and receipt of information and documents; provided, however, that at the request of either Aspen or the Reinsurer, a meeting shall be held at which the Parties may present their views, that both Aspen and the Reinsurer shall have equal access to the Independent Actuary, and that all information and documents which either Party delivers or makes available to the Independent Actuary shall be furnished to the other Party as well. The review by the Independent Actuary shall be limited solely to the disputed items (and any items affected thereby) and amounts in the True-Up Dispute Notice that remain unresolved. Any determination by the Independent Actuary shall not be outside the range defined by the respective amounts in the Final Closing Statement and the True-Up Dispute Notice, and such determination shall be final and binding upon, and non-appealable by, the Parties and their respective successors and assigns for all purposes of this Agreement, and not subject to collateral attack for any reason absent manifest error or fraud. The fees and expenses of the Independent Actuary arising from such arbitration shall be paid by the Parties pro rata based on where the Independent Actuary’s determination of the New Reinsurance Premium falls in comparison to the amount claimed by ▇▇▇▇▇ in the Final Closing Statement and the amount claimed by the Reinsurer in the True-Up Dispute Notice.
(d) If the New Reinsurance Premium as finally determined payment pursuant to this Section 3.3 is (i2.06(g) greater than shall be made by Buyer or the Estimated New Reinsurance Premium (such differenceSellers, a “Positive Adjustment Amount”), then Aspen shall pay to as the Reinsurer (or to the applicable Trust Accounts, to the extent that the Reinsurer’s Posted Collateral is less than the Initial Required Collateral Amount)case may be, by wire transfer of immediately available funds to one or more accounts designated in writing by the Reinsurer, the Positive Adjustment Amount within five (5) Business Days following final determination of the New Reinsurance Premium pursuant to this Section 3.3 such account or (ii) less than the Estimated New Reinsurance Premium (the absolute value accounts of such differenceother Party as may be designated by such other Party in writing. In the event of a failure to timely make such payment, interest shall accrue on such amount for the period commencing on the payment due date through the date on which such payment is made calculated at the Prime Rate. Such interest shall be payable at the same time as the payment to which it relates and shall be calculated daily on the basis of a “Negative Adjustment Amount”), then Aspen shall reduce year of three hundred and sixty-five (365) days and the Funds Withheld Account Balance by the Negative Adjustment Amountactual number of days elapsed.
Appears in 1 contract
Post-Closing Adjustment. (a) No later than forty-five fifty (4550) days following after the Closing Date, Aspen the Purchaser shall prepare and deliver to the Reinsurer Seller Representative a detailed statement in the same form as the Closing Statement (the “Final Post-Closing Statement”) setting forth Aspen’s good faith calculation of (i) the New Reinsurance Premium Trade Working Capital of the Group as of immediately prior to Closing (including the New Reinsurance Premium Accrued Interest“Final Trade Working Capital”), the Roll-forward Amount and the ULAE Reimbursement Amount) and (ii) the Initial Required Collateral AmountIndebtedness of the Group as of immediately prior to Closing (the “Final Indebtedness”), (iii) the Cash Balance of the Group as of immediately prior to Closing (the “Final Cash Balance”), (iv) the Acquisition Expenses (the “Final Acquisition Expenses”) and (v) the Capital Expenditures of the Group during the period from March 30, 2014 through Closing, including a table listing out the amounts of capital expenditures in a format consistent with the Capital Expenditure Budget (the “Final Capital Expenditures”), in each case, as of including a schedule setting forth the components thereof and with reasonable supporting detail. All amounts in the Post-Closing Date, together Statement shall be calculated in accordance with all accounting, actuarial the Accounting Principles using the same currency and other data and documentation reasonably necessary for exchange rate used to calculate such amounts in the Reinsurer to review ▇▇▇▇▇’s proposed final calculations Pre-Closing Statement. If the Purchaser does not deliver the Post-Closing Statement by the end of such amountsfifty (50) day period, Purchaser and the Seller shall deliver joint written instructions to the Escrow Agent to release the Adjustment Escrow Account to the Seller.
(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 after receipt of such statement, the Reinsurer’s receipt Seller Representative may provide written notice to the Purchaser disputing all or a part of the Final Closing StatementTrade Working Capital, the Reinsurer may deliver written notice (Final Indebtedness, the “True-Up Dispute Notice”) to Aspen of any objectionsFinal Cash Balance, the Final Acquisition Expenses and/or the Final Capital Expenditures, specifying in reasonable detail any contested amounts and those items that the basis therefor, which the Reinsurer may have to the Final Closing Statement. The failure Seller Representative disputes (an “Objection Notice”) (such date of delivery of the Reinsurer to deliver such True-Up Dispute Notice Objection Notice, provided that it is within the prescribed time period will constitute 45-day period, the Reinsurer’s acceptance as final “Seller Response Date”). If the Seller Representative does not provide an Objection Notice with respect to any such amounts by the end of the Final Closing Statement as determined by ▇▇▇▇▇. Any such forty-five (45)-day period, any such amounts not disputed in the True-Up Dispute Notice (if one is delivered) so objected to shall be deemed to be accepted by final and binding on the Reinsurer as final, except to the extent that such amounts are affected by any disputed amountsparties.
(c) If Aspen and the Reinsurer are unable to resolve all disagreements with respect Seller Representative delivers an Objection Notice 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 Purchaser within forty-five (45) days after such submission. The Independent Actuary shall decide all matters relating to the procedures to be followed for resolution receipt of the disputePurchaser’s statement, including those relating to then the submission and receipt of information and documents; provided, however, that at the request of either Aspen or the Reinsurer, a meeting shall be held at which the Parties may present their views, that both Aspen Seller Representative and the Reinsurer Purchaser shall have equal access negotiate in good faith to the Independent Actuary, and that all information and documents which either Party delivers or makes available to the Independent Actuary shall be furnished to the other Party as well. The review by the Independent Actuary shall be limited solely to resolve the disputed items for thirty (and any items affected thereby30) and amounts in days following Purchaser’s receipt of the True-Up Dispute Notice that remain unresolvedObjection Notice. Any determination by If, during such period, the Independent Actuary shall not be outside the range defined by the respective amounts in the Final Closing Statement Seller Representative and the True-Up Dispute NoticePurchaser are able to resolve such dispute and agree on the amounts of Trade Working Capital, Indebtedness and Cash Balance as of immediately prior to Closing, the amount of Acquisition Expenses and/or the amount of Capital Expenditures during the period from March 30, 2014 through Closing, such determination amounts shall be become final and binding upon, and non-appealable by, on the Parties and their respective successors and assigns for all purposes of this Agreement, and not subject to collateral attack for any reason absent manifest error or fraud. The fees and expenses of the Independent Actuary arising from such arbitration shall be paid by the Parties pro rata based on where the Independent Actuary’s determination of the New Reinsurance Premium falls in comparison to the amount claimed by ▇▇▇▇▇ in the Final Closing Statement and the amount claimed by the Reinsurer in the True-Up Dispute Noticeparties.
(d) If the New Reinsurance Premium as finally determined Purchaser and the Seller Representative do not agree on a final resolution with respect to any disputed items within such period, then the remaining items in dispute shall be submitted to the Independent Auditor. The parties agree to instruct the Independent Auditor to render a determination of the applicable dispute within forty-five (45) days after referral of the matter to such Independent Auditor, which determination must be in writing and must set forth, in reasonable detail, the basis therefor. The Independent Auditor shall be bound by this Section 2.8(d) and shall determine only those issues still in dispute, and the Independent Auditor may not assign a value to any item greater than the greatest value for such item claimed by either the Purchaser or the Seller Representative or less than the least value for such item claimed by either the Purchaser or the Seller Representative. The determination of the Independent Auditor pursuant to this Section 3.3 2.8(d) shall be final and binding on the parties. The fees of the Independent Auditor shall be borne by the Seller Representative and the Purchaser in inverse proportion as they may prevail on matters resolved by the Independent Auditor.
(e) The final and binding amounts of Trade Working Capital, Indebtedness and Cash Balance as of immediately prior to Closing, as finally determined in accordance with this Section 2.8, shall be the “Actual Trade Working Capital,” the “Actual Indebtedness” and the “Actual Cash Balance,” respectively. The final and binding amount of Acquisition Expenses, as finally determined in accordance with this Section 2.8 shall be the “Actual Acquisition Expenses.” The final and binding amount of Capital Expenditures during the period from March 30, 2014 through Closing, as finally determined in accordance with this Section 2.8 shall be the “Actual Capital Expenditures.”
(f) The Seller Representative and the Purchaser will, and will cause their respective accountants and Subsidiaries to, cooperate and assist in resolving any disputes under this Section 2.8, including by considering the other’s positions in good faith and making available, to the extent necessary, books, records, work papers and personnel, subject to Section 6.3 (Pre-Closing Access and Information; Confidentiality). If requested by the Seller, prior to the Closing the Purchaser shall cooperate with the Seller in preparing an engagement letter so that the Independent Auditor may be promptly engaged if and to the extent that any items in dispute are submitted to the Independent Auditor for determination pursuant to this Section 2.8.
(g) If the Actual Trade Working Capital is (i) greater than the Estimated New Reinsurance Premium Trade Working Capital, then promptly (but in any event within three (3) Business Days after the date on which such difference, a “Positive Adjustment Amount”amount is finally determined in accordance with this Section 2.8), then Aspen the Purchaser shall pay or cause to be paid to the Reinsurer Seller an amount in cash (or United States Dollars) equal to the applicable Trust Accounts, to the extent that the Reinsurer’s Posted Collateral is less than the Initial Required Collateral Amount)such excess, by wire transfer of immediately available funds to one or more accounts an account designated in writing by the ReinsurerSeller. If the Actual Trade Working Capital is less than the Estimated Trade Working Capital, the Positive Adjustment Amount then promptly (but in any event within five three (53) Business Days after the date on which such amount is finally determined in accordance with this Section 2.8), the Seller Representative and the Purchaser shall instruct the Escrow Agent to pay from the Adjustment Escrow Account to the Purchaser an amount in cash (United States Dollars) equal to such shortfall, by wire transfer of immediately available funds to an account designated in writing by the Purchaser.
(h) If the Actual Indebtedness is greater than the Estimated Indebtedness, then promptly (but in any event within three (3) Business Days after the date on which such amount is finally determined in accordance with this Section 2.8), the Seller Representative and the Purchaser shall instruct the Escrow Agent to pay from the Adjustment Escrow Account to the Purchaser an amount in cash (United States Dollars) equal to such excess, by wire transfer of immediately available funds to an account designated in writing by the Purchaser. If the Actual Indebtedness is less than the Estimated Indebtedness, then promptly (but in any event within three (3) Business Days after the date on which such amount is finally determined in accordance with this Section 2.8), the Purchaser shall pay or cause to be paid to the Seller an amount in cash (United States Dollars) equal to such excess, by wire transfer of immediately available funds to an account designated in writing by the Seller.
(i) If the Actual Cash Balance is less than the Estimated Cash Balance, then promptly (but in any event within three (3) Business Days after the date on which such amount is finally determined in accordance with this Section 2.8), the Seller Representative and the Purchaser shall instruct the Escrow Agent to pay from the Adjustment Escrow Account to the Purchaser an amount in cash (United States Dollars) equal to such excess, by wire transfer of immediately available funds to an account designated in writing by the Purchaser. If the Actual Cash Balance is greater than the Estimated Cash Balance, then promptly (but in any event within three (3) Business Days after the date on which such amount is finally determined in accordance with this Section 2.8), the Purchaser shall pay or cause to be paid to the Seller an amount in cash (United States Dollars) equal to such excess, by wire transfer of immediately available funds to an account designated in writing by the Seller.
(j) If the Actual Acquisition Expenses are greater than the Estimated Acquisition Expenses, then promptly (but in any event within three (3) Business Days after the date on which such amount is finally determined in accordance with this Section 2.8), the Seller Representative and the Purchaser shall instruct the Escrow Agent to pay from the Adjustment Escrow Account to the Purchaser an amount in cash (United States Dollars) equal to such excess, by wire transfer of immediately available funds to an account designated in writing by the Purchaser. If the Actual Acquisition Expenses are less than the Estimated Acquisition Expenses, then promptly (but in any event within three (3) Business Days after the date on which such amount is finally determined in accordance with this Section 2.8), the Purchaser shall pay or cause to be paid to the Seller Representative an amount in cash (United States Dollars) equal to such excess, by wire transfer of immediately available funds to an account designated in writing by the Seller Representative.
(k) If the Estimated Capital Expenditures is greater than the Actual Capital Expenditures, then promptly (but in any event within three (3) Business Days after the date on which such amount is finally determined in accordance with this Section 2.8), the Seller Representative and the Purchaser shall instruct the Escrow Agent to pay from the Adjustment Escrow Account to the Purchaser an amount in cash (United States Dollars) equal to such excess, by wire transfer of immediately available funds to an account designated in writing by the Purchaser. If the Estimated Capital Expenditures is less than the Actual Capital Expenditures, then promptly (but in any event within three (3) Business Days after the date on which such amount is finally determined in accordance with this Section 2.8), the Purchaser shall pay or cause to be paid to the Seller Representative an amount in cash (United States Dollars) equal to such excess, by wire transfer of immediately available funds to an account designated in writing by the Seller Representative.
(l) Promptly following final determination the Seller’s delivery of a Seller Response Notice (or promptly following the New Reinsurance Premium Seller’s delivery of a written notice to the Purchaser that it does not dispute any of Purchaser’s calculations), the Purchaser and the Seller shall deliver joint written instructions to the Escrow Agent to release any amounts not in dispute. Promptly following payment (if any) pursuant to Section 2.8(g), payment (if any) pursuant to Section 2.8(h), payment (if any) pursuant to Section 2.8(i), payment (if any) pursuant to Section 2.8(j) and payment (if any) pursuant to Section 2.8(k), the Purchaser and the Seller shall deliver joint written instructions to the Escrow Agent to release any remaining amount in the Adjustment Escrow Account to the Seller.
(m) Notwithstanding anything in this Agreement to the contrary, (i) any amounts payable by the Seller or Seller Representative to the Purchaser pursuant to this Section 3.3 or 2.8 shall be satisfied exclusively from the amount (if any) remaining in the Adjustment Escrow Account and (ii) less no claims by any Purchaser Indemnified Party other than the Estimated New Reinsurance Premium (the absolute value of such difference, a “Negative Adjustment Amount”), then Aspen shall reduce the Funds Withheld Account Balance claims for amounts payable by the Negative Seller or Seller Representative to the Purchaser pursuant to this Section 2.8 shall be satisfied from the Adjustment AmountEscrow Account.
Appears in 1 contract
Sources: Share Purchase Agreement (Alcoa Inc)
Post-Closing Adjustment. (ai) No later than forty-five (45) Within 60 days following the Closing Date, Aspen Parent shall prepare and deliver to the Stockholder Representative an unaudited consolidated balance sheet of the Company and its Subsidiaries as of immediately prior to the Effective Time (such balance sheet is referred to as the “Closing Date Balance Sheet”). The Closing Date Balance Sheet shall be substantially in the form of the Company’s Balance Sheet and shall, except as otherwise provided in this Agreement, be prepared in accordance with GAAP (except for the absence of footnotes) and on a basis consistent with and utilizing the same principles, practices and policies as those used by the Company in preparing the Company’s Balance Sheet. Together with the Closing Date Balance Sheet, the Parent’s Chief Financial Officer shall deliver to the Reinsurer Stockholder Representative a detailed statement in the same form as the Closing Statement certificate setting forth:
(the “Final Closing Statement”A) setting forth AspenParent’s good faith calculation determination of the Closing Net Assets;
(iB) Parent’s good faith determination of Closing Debt;
(C) Company’s good faith determination of the New Reinsurance Premium Specified Transaction Expenses and all other Transaction Expenses;
(including D) Parent’s good faith determination of the New Reinsurance Premium Accrued InterestClosing Adjustment Amount; and
(E) Parent’s good faith determination of the Adjusted Enterprise Value all in reasonable detail together with appropriate backup documentation to support such estimations and determinations (collectively, the Roll-forward Amount and the ULAE Reimbursement Amount) and “Parent Determination”).
(ii) After the Initial Required Collateral Amount, in each case, as delivery of the Closing DateCompany Balance Sheet and the Parent Determination, together Parent shall, and shall cause the Surviving Corporation to, cooperate with all accountingthe Stockholder Representative in connection with his review of the Company Balance Sheet and the Parent Determination, actuarial including by providing the Stockholder Representative and his representatives reasonable access during business hours to the employees of Parent and the Surviving Corporation responsible for, and the books, records 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 Statementmaterials used in, 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 Company Balance Sheet and the Parent Determination. The Stockholder Representative may dispute any amounts reflected on the Closing Statement Date Balance Sheet or the Parent Determination by notifying Parent in writing of each disputed item, specifying the amount thereof in dispute and setting forth, in reasonable detail, the basis for such dispute, within 30 days after 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 ReinsurerStockholder Representative’s receipt of the Final Closing StatementDate Balance Sheet and the Parent Determination. If the Stockholder Representative delivers a notice of disagreement within such 30-day period, the Reinsurer may deliver written notice (Stockholder Representative and Parent shall, during the “True30 days following such delivery, each use good faith efforts to reach agreement on the disputed items or amounts in order to finally determine the Adjusted Enterprise Value. If the Stockholder Representative and Parent are unable to reach agreement concerning the Adjusted Enterprise Value during such 30-Up Dispute Notice”) day period, they shall promptly thereafter submit the dispute to Aspen the Accounting Referee for resolution pursuant to Section 3.1(d). In the event of any objectionsdispute by the Stockholder Representative pursuant to this Section 3.1(c)(ii), specifying in reasonable detail any contested amounts and the basis therefor, which Adjustment Escrow Shares Release Date shall automatically be extended until the Reinsurer may have resolution of such dispute pursuant to this Section 3.1(c) or Section 3.1(d).
(iii) The Adjusted Enterprise Value shall be deemed conclusively determined for purposes of this Agreement upon the Final Closing Statement. The earlier to occur of (x) the failure of the Reinsurer Stockholder Representative to deliver such True-Up Dispute Notice notify Parent of a dispute within the prescribed time period will constitute the Reinsurer’s acceptance as final 30 days of the Final Stockholder Representative’s receipt of the Closing Statement Date Balance Sheet and Parent Determination and the other information provided in clause (c)(i) above, all as determined set forth in clause (c)(i) above, (y) the written resolution of all disputes pursuant to clause (c)(ii) above by ▇▇▇▇▇Parent and the Stockholder Representative, and (z) the resolution of all disputes by the Accounting Referee pursuant to Section 3.1(d). Within three Business Days of such conclusive determination, if: (A) the Adjusted Enterprise Value is less than the Estimated Enterprise Value, Parent shall be entitled to receive from the Escrowed Shares that number of Escrowed Shares having a value, based on the Agreed Price Per Share, the absolute value of the difference between the Estimated Enterprise Value and the Adjusted Enterprise Value, or (B) the Adjusted Enterprise Value is greater than the Estimated Enterprise Value, Parent shall make a cash payment to the Stockholder Representative (for further distribution to the Participating Rights Holders) equal to the absolute value of the difference between the Estimated Enterprise Value and the Adjusted Enterprise Value.
(iv) Notwithstanding anything herein to the contrary, any Escrowed Shares that the Parent shall be entitled to receive pursuant to Section 3.1(c)(iii) shall be out of the Adjustment Escrow Shares and the Carve-Out Escrowed Adjustment Shares, on a pro rata basis, shall be rounded down to the nearest whole share (in the case of fractional shares) and shall in no event exceed 5% of the Base Consideration Shares. Any amounts not disputed in payment of Escrowed Shares to the True-Up Dispute Notice (if one is deliveredParent pursuant to Section 3.1(c)(iii) shall be deemed to be accepted by the Reinsurer as final, except a decrease to the extent that such amounts are affected by Merger Consideration. The first 6.383% of any disputed amounts.
(ccash payment pursuant to Section 3.1(c)(iii) If Aspen shall be allocated to the Executive Payee, and the Reinsurer are unable to resolve all disagreements with respect to the Final Closing Statement within thirty (30) days following ▇▇▇▇▇’s receipt remainder of a True-Up Dispute Notice (the “True-up Dispute Cooling-Off Period”), the items and amounts in dispute any such payment shall be submitted for review to allocated among the Independent Actuary for final determination within forty-five (45) days after such submission. The Independent Actuary shall decide all matters relating to the procedures to be followed for resolution various series of the dispute, including those relating Company’s Preferred Stock in proportion to the submission and receipt of information and documents; provided, however, that at the request of either Aspen or the Reinsurer, a meeting shall be held at which the Parties may present their views, that both Aspen and the Reinsurer shall have equal access to the Independent Actuary, and that all information and documents which either Party delivers or makes available to the Independent Actuary shall be furnished to the other Party as well. The review by the Independent Actuary shall be limited solely to the disputed items (and any items affected thereby) and amounts in the True-Up Dispute Notice that remain unresolved. Any determination by the Independent Actuary shall not be outside the range defined by the respective amounts in the Final Closing Statement and the True-Up Dispute Notice, and such determination shall be final and binding upon, and non-appealable by, the Parties and their respective successors Preference Percentage and assigns for all purposes then to each holder of this Agreement, and not subject to collateral attack for any reason absent manifest error or fraud. The fees and expenses shares of the Independent Actuary arising from such arbitration shall be paid by the Parties pro rata based on where the Independent Actuary’s determination of the New Reinsurance Premium falls in comparison to the amount claimed by ▇▇▇▇▇ in the Final Closing Statement and the amount claimed by the Reinsurer in the True-Up Dispute Notice.
(d) If the New Reinsurance Premium as finally determined Company Preferred Stock pursuant to this Section 3.3 is (i) greater than the Estimated New Reinsurance Premium (such difference, a “Positive Adjustment Amount”), then Aspen shall pay to the Reinsurer (or to the applicable Trust Accounts, to the extent that the Reinsurer’s Posted Collateral is less than the Initial Required Collateral Amount), by wire transfer holders’ respective Pro Rata Portion of immediately available funds to one or more accounts designated in writing by the Reinsurer, the Positive Adjustment Amount within five (5) Business Days following final determination each such series of the New Reinsurance Premium pursuant to this Section 3.3 or (ii) less than the Estimated New Reinsurance Premium (the absolute value of such difference, a “Negative Adjustment Amount”), then Aspen shall reduce the Funds Withheld Account Balance by the Negative Adjustment AmountCompany Preferred Stock.
Appears in 1 contract
Sources: Merger Agreement (Acme Packet Inc)
Post-Closing Adjustment. (a) No later than forty-five (45) Within 90 calendar days following after the Closing Date, Aspen Buyer shall deliver to Seller a statement (the Reinsurer “Closing Statement”) setting forth in reasonable detail Buyer’s good faith calculation of the following items (each a detailed statement in “Closing Item”): (i) Cash (as finally determined pursuant to this Section 2.4, the same form “Final Cash”); (ii)Working Capital (as finally determined pursuant to this Section 2.4, the “Final Working Capital”); (iii) the aggregate amount of Indebtedness as of immediately prior to the Closing (as finally determined pursuant to this Section 2.4, the “Final Indebtedness”); (iv) the aggregate amount of Transaction Expenses (as finally determined pursuant to this Section 2.4, the “Final Transaction Expenses”); and (v) the resulting calculation of the Final Purchase Price, including the Closing Payment (as finally determined pursuant to this Section 2.4) and the Deferred Consideration (as finally determined pursuant to this Section 2.4).
(b) Seller shall have 30 calendar days after Seller’s receipt of the Closing Statement (the “Final Closing StatementReview Period”) setting forth Aspenwithin which to review Buyer’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 DateItems. If Seller disputes any of the Closing Items, Seller shall notify Buyer in writing of its objection to such Closing Item(s) prior to the expiration of the Review Period, together with all accounting, actuarial a description and other data supporting documentation of the basis for and documentation reasonably necessary for the Reinsurer to review ▇▇▇▇▇’s proposed final calculations dollar amount of such amounts.
disputed items (b) Upon receipt of a “Dispute Notice”). The Closing Items, as set forth in the Final Closing Statement, shall become final, conclusive and binding on the Reinsurer and its authorized Representatives will be given reasonable access Parties unless Seller delivers to all accounting, actuarial and other data and documentation related Buyer a Dispute Notice prior to the preparation expiration of the Final Review Period. If Seller timely delivers a Dispute Notice, any amounts on the Closing Statement for the purpose of, and not objected 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 Seller in the True-Up Dispute Notice (if one is deliveredor by Buyer as a result of the items disputed by Seller in any such Dispute Notice) shall be deemed to be accepted by the Reinsurer as final, except to conclusive and binding on the extent that such amounts are affected by any disputed amounts.
(c) If Aspen Parties. Buyer and the Reinsurer are unable to resolve all disagreements with respect to the Final Closing Statement Seller shall, within thirty (30) 30 calendar days following ▇▇▇▇▇’s receipt of a True-Up such Dispute Notice (the “True-up Dispute Cooling-Off Resolution Period”), the items and amounts use commercially reasonably efforts to attempt to resolve in dispute shall be submitted for review writing their differences with respect to the Independent Actuary for final determination within forty-five (45) days after such submission. The Independent Actuary shall decide all matters relating to set forth in the procedures to be followed for resolution of the dispute, including those relating to the submission and receipt of information and documents; provided, however, that at the request of either Aspen or the Reinsurer, a meeting shall be held at which the Parties may present their views, that both Aspen and the Reinsurer shall have equal access to the Independent Actuary, and that all information and documents which either Party delivers or makes available to the Independent Actuary shall be furnished to the other Party as well. The review by the Independent Actuary shall be limited solely to the disputed items Dispute Notice (and any items affected thereby) and amounts matters with respect to the Closing Items which Buyer is disputing as a result of the matters set forth in the True-Up Dispute Notice that remain unresolved. Any determination by the Independent Actuary shall not be outside the range defined by the respective amounts in the Final Closing Statement and the True-Up Dispute Notice, or any disputed matters arising out of the foregoing) and any such determination resolution shall be final final, conclusive and binding uponon the Parties. If, at the conclusion of the Resolution Period, any amounts remain in dispute, then each of Buyer and non-appealable bySeller shall submit all items remaining in dispute to ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP, or if ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP is unable to serve, to a nationally recognized accounting firm mutually acceptable to Buyer and Seller (the Parties and “Accounting Firm”) for resolution by delivering within 15 calendar days after the expiration of the Resolution Period to the Accounting Firm their respective successors and assigns for all purposes of this Agreement, and not subject written position with respect to collateral attack for any reason absent manifest error or fraudsuch items remaining in dispute. The fees and expenses of the Independent Actuary arising from such arbitration Accounting Firm pursuant to this Section 2.4(b) shall be paid borne by Seller, on the Parties pro rata based one hand, and Buyer, on where the Independent Actuary’s determination of the New Reinsurance Premium falls other hand, in comparison inverse proportion to the final allocation made by such Accounting Firm of any disputed Closing Items, such that the prevailing Party pays the lesser proportion of such fees, costs and expenses. For example, if Seller claims that the appropriate adjustments are $1,000 greater than the amount claimed determined by ▇▇▇▇▇ and if the Accounting Firm ultimately resolves the dispute by awarding Seller $700 of the $1,000 disputed, then the fees, costs and expenses of the Accounting Firm will be 70% (i.e., 700 divided by 1,000) to Buyer and 30% (i.e., 300 divided by 1,000) to Seller. The Accounting Firm shall determine, based solely on the written submissions by ▇▇▇▇▇▇ and ▇▇▇▇▇, and not by independent review, only those issues set forth in the Final Dispute Notice (and those raised by Buyer in response thereto) that remain in dispute and shall determine a value for any such disputed item which is equal to or between the final values proposed by ▇▇▇▇▇ and Seller in their respective submissions. The Parties shall request that the Accounting Firm make a decision with respect to all disputed items within 30 calendar days after the submissions of the Parties, as provided above, and in any event as promptly as practicable. The final determination with respect to all disputed items shall be set forth in a written statement by the Accounting Firm delivered simultaneously to Seller and Buyer and shall be final, conclusive and binding on the Parties, absent manifest error. Judgment may be entered upon the determination of the Accounting Firm in any court having jurisdiction over the Party against which such determination is to be enforced. Buyer and Seller shall promptly execute any reasonable engagement letter requested by the Accounting Firm and shall each cooperate fully with the Accounting Firm, including by providing the information, data and work papers used by each Party to prepare and/or calculate the Closing Items, making its personnel and accountants available to explain any such information, data or work papers and answering any written questions from the Accounting Firm, so as to enable the Accounting Firm to make such determination as quickly and as accurately as practicable.
(c) From and after Seller’s receipt of the Closing Statement until the Closing Items are finally determined pursuant to this Section 2.4, Seller and its auditors, accountants and other representatives shall be permitted reasonable access, during normal business hours and upon reasonable advance notice, to the amount claimed Company, its auditors, accountants, personnel, books and records and any other documents or information reasonably requested by Seller (including the Reinsurer information, data and work papers used by Buyer or the Company’s auditors or accountants to prepare and calculate the Closing Items); provided that such access shall be solely for the purposes of verifying the information contained in the True-Up Dispute NoticeClosing Statement for purposes of this Section 2.4. As a condition to such access, Seller or its auditors, accountants or other representatives, as applicable, shall agree to maintain the confidentiality of any information provided or received as a result of such access and will enter into customary confidentiality agreements with Buyer or the Company, as applicable, as reasonably requested by Buyer in connection therewith.
(d) If the New Reinsurance Premium as Final Purchase Price exceeds the Initial Purchase Price (such excess amount, if any, the “Excess Amount”), then within five (5) Business Days after the Final Purchase Price is finally determined pursuant to this Section 3.3 is (i) greater than 2.4, Buyer shall, or shall cause the Estimated New Reinsurance Premium (such differenceCompany to, a “Positive Adjustment Amount”), then Aspen shall pay to the Reinsurer (or to the applicable Trust Accounts, to the extent that the Reinsurer’s Posted Collateral is less than the Initial Required Collateral Amount)Seller, by wire transfer of immediately available funds to one or more accounts an account designated by Seller in writing by writing, an aggregate amount equal to 80% of the ReinsurerExcess Amount (for clarity, the Positive Adjustment remaining 20% of the Excess Amount shall be deemed satisfied in connection with the payment of Deferred Consideration to Seller pursuant to Section 2.6). If the Final Purchase Price is less than the Initial Purchase Price, (such shortfall amount, if any, the “Shortfall Amount”), then within five (5) Business Days following final determination of after the New Reinsurance Premium Final Purchase Price is finally determined pursuant to this Section 3.3 2.4, the Shortfall Amount shall be satisfied, at Buyer’s election, by any or all of (but without duplication): (A) the forfeiture of a portion of any Deferred Consideration Installment(s) (as defined in Section 2.6(a)) Seller may be eligible to receive pursuant to Section 2.6, (B) the forfeiture of all or a portion of the Earnout Stock, with each such share of Earnout Stock having a value calculated using the Parent Common Stock Closing VWAP (as defined in Exhibit B), and which transfer or forfeiture of such Deferred Consideration Installment or Earnout Stock, as applicable, shall be automatically effective upon such election by Buyer without further action or approval of any Person and shall be recognized and deemed approved by Seller, Buyer and Parent, or (iiC) less than a wire transfer of immediately available funds from Seller to an account designated in writing by Buyer within 10 calendar days after ▇▇▇▇▇’s election. Any forfeiture of value or payments made pursuant to this Section 2.4 shall be deemed an adjustment to the Estimated New Reinsurance Premium (the absolute value of such difference, a “Negative Adjustment Amount”), then Aspen shall reduce the Funds Withheld Account Balance by the Negative Adjustment AmountFinal Purchase Price.
Appears in 1 contract
Sources: Equity Purchase Agreement (Array Technologies, Inc.)
Post-Closing Adjustment. (ai) No later than forty-five As soon as practicable after the Closing Date, but in any event within ninety (4590) calendar days following the Closing Date, Aspen Buyer shall prepare or cause to be prepared and deliver to the Reinsurer Seller Representatives a detailed statement in closing balance sheet for the same form Company setting forth the book value of the assets and liabilities of the Company as of the Effective Time (the “Closing Balance Sheet”) and determine the calculations of (a) the Net Working Capital as of the Effective Time (the “Final Closing Net Working Capital”), (b) the Cash amount as of the Effective Time (the “Final Cash Amount”), (c) the Adjusted Debt Amount as of the Effective Time (the “Final Adjusted Debt Amount”), (d) the amount of Seller Transaction Expenses that were unpaid as of the Closing Statement (the “Final Seller Transaction Expenses”) and (e) the Final Seller Closing Payment (collectively, with (a) through (e) the “Final Closing Statement”) setting based on such determinations. Such calculations shall not include any changes in assets or liabilities as a result of purchase accounting adjustments or other changes arising from or resulting as a consequence of the transactions contemplated hereby. The Closing Statement shall set forth Aspen’s good faith calculation a reconciliation between the estimated calculations reflected in set forth in the Estimated Closing Balance Sheet, Estimated Closing Net Working Capital, Estimated Cash Amount, Estimated Adjusted Debt Amount, and Estimated Seller Transaction Expenses, and those calculations set forth on the Closing Statement including an explanation for all such changes and all reasonable supporting documentation used in calculating each of the foregoing to the extent such documentation is readily available. Additionally, the calculations shall be based on facts, circumstances, and information available as they exist prior to the Closing and shall exclude the effect of any act, decision, change in circumstance, development or event arising or occurring on or after the Closing. The Parties agree that the purpose of preparing the Closing Balance Sheet and determining the amounts of Cash, Adjusted Debt Amount, unpaid Seller Transaction Expenses and Net Working Capital and the related Final Seller Closing Payment is to measure changes in the foregoing amounts, and in undertaking such processes, the Parties shall not introduce different judgments, accounting methods, policies, principles, practices, procedures, classifications or estimation methodologies for the purpose of determining such amounts not reflected in the calculations of the Closing Balance Sheet, Estimated Closing Net Working Capital or included in the Accounting Principles. Without limiting the foregoing, the Final Closing Net Working Capital shall not contain any categories or types of assets or liabilities or other accounts, reserves or line items not reflected in the calculations of the Estimated Closing Net Working Capital or included in the Accounting Principles. If Buyer fails to deliver the Closing Balance Sheet and calculations contemplated by this paragraph within ninety (i90) days following the New Reinsurance Premium Closing, then the Closing Estimates shall be final, not subject to further adjustment and binding for all purposes (including calculating the New Reinsurance Premium Accrued Interest, the Roll-forward Amount and the ULAE Reimbursement Amount) and Purchase Price).
(ii) If the Initial Required Collateral Seller Representatives wish to dispute the Closing Balance Sheet, Final Closing Net Working Capital, the Final Cash 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 StatementAdjusted Debt Amount, the Reinsurer and its authorized Representatives will be given reasonable access to all accountingFinal Seller Transaction Expenses, actuarial and other data and documentation related to the preparation of and/or the Final Seller Closing Statement for Payment determined by Buyer, then the purpose of, and Seller Representatives shall deliver to the extent reasonably necessary for, verifying the Final Closing Statement; provided, that no independent accountants or independent actuaries of Aspen shall Buyer a written statement (as such statement may be required updated pursuant 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 paragraph (45iii) days of the Reinsurer’s receipt of the Final Closing Statementbelow, the Reinsurer may deliver written notice (the “True-Up Dispute Notice”) to Aspen of any objections, specifying in describing with 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 for any such True-Up Dispute Notice dispute 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 fifty (if one is delivered50) 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) calendar days after such submission. The Independent Actuary shall decide all matters relating to receiving the procedures to be followed for resolution of the dispute, including those relating to the submission Closing Balance Sheet and receipt of information and documentscalculations required by Section 2(f)(i); provided, however, that at the request of either Aspen or the Reinsurer, a meeting shall be held at which the Parties may present their views, that both Aspen and the Reinsurer shall have equal access to the Independent Actuary, and that all information and documents which either Party delivers or makes available to the Independent Actuary shall be furnished to the other Party as well. The review by the Independent Actuary such disputes shall be limited solely to objections based on (i) failure to comply with the disputed items terms of this Agreement and (and any items affected therebyii) and amounts in mathematical error. If the True-Up Seller Representatives do not deliver the Dispute Notice that remain unresolvedto Buyer within such fifty (50) calendar day time period, then the determination of the Final Closing Net Working Capital, the Final Cash Amount, the Closing Balance Sheet, Final Adjusted Debt Amount, the Final Seller Transaction Expenses and the Final Seller Closing Payment shall be deemed final and accepted by the Seller Representatives. Any determination Dispute Notice must set forth in reasonable detail (x) any item delivered by the Independent Actuary shall not be outside the range defined by the respective amounts Buyer in the Final Closing Statement which the Seller believes has not been prepared in accordance with this Agreement and, to the extent then known or able to be estimated, the purported correct amount of such item and (y) to the extent then known or able to be estimated, the Seller Representatives’ alternative calculation of each such item and the TrueFinal Seller Closing Payment. Subject to Section 2(f)(i), any item or amount to which no dispute is raised in a Dispute Notice will be final, conclusive and binding on the Parties on the fifty-Up first (51st) calendar day after the delivery to the Seller Representatives of the Final Closing Statement. If the Seller Representatives deliver a Dispute Notice, and such determination Buyer’s calculations delivered pursuant to Section 2(e)(i) show a Final Excess, then at any time within five (5) Business Days after the Seller Representatives provide a written request therefor, the Buyer and the Seller Representatives shall be final execute and binding upondeliver joint written instructions to the Escrow Agent to pay to each Seller the amount of the Final Excess in the manner forth in the Funds Flow Memorandum. If the Seller Representatives deliver a Dispute Notice, and non-appealable byBuyer’s calculations delivered pursuant to Section 2(e)(i) show an amount in dispute that is less than the amount of the Adjustment Escrow Amount, then at any time within five (5) Business Days after the Seller Representatives provide a written request therefor, the Parties Buyer shall execute and their respective successors deliver joint written instructions to the Escrow Agent to pay the portion of the Adjustment Escrow Fund that exceeds the amount in dispute to the accounts designated by the Seller Representatives on behalf of the Sellers as set forth in the Funds Flow Memorandum. Buyer and assigns the Seller Representatives will use reasonable efforts to resolve any such dispute themselves. If any such dispute is not finally resolved within thirty (30) calendar days after Buyer’s receipt of the Dispute Notice (the “Discussion Period”), either Buyer or the Seller Representatives may promptly thereafter cause PricewaterhouseCoopers or another mutually acceptable third party accounting firm (the “Independent Accountant”), acting as an expert and not as an arbitrator, to resolve such unresolved disputed items duly set forth in the Dispute Notice delivered pursuant to this Section 2(f)(ii) (the “Disputed Items”). For the avoidance of doubt, the Independent Accountant shall apply the Accounting Principles and the other principles set forth in this Agreement (including the requirements of Section 2(f)(i)) for all purposes of the resolving the Disputed Items, and the engagement letter for the Independent Accountant shall include the agreement of the Independent Accountant to apply the Accounting Principles. Buyer and the Seller Representatives shall keep each other copied on any correspondence with the Independent Accountant, and shall not engage in telephone calls or meetings with the Independent Accountant unless the other Party is provided with reasonable advance notice of the call or meeting and an opportunity to participate. Within twenty-five (25) calendar days after submission to the Independent Accountant for resolution, Buyer and the Seller Representatives each shall submit a written presentation indicating in writing its position on each Disputed Item and each such Party’s resulting determination of the amount of the Final Closing Net Working Capital, Final Cash Amount, the Final Adjusted Debt Amount, the Final Seller Transaction Expenses and the Final Seller Closing Payment. Within twenty-five (25) calendar days after submission of each Party’s opening written presentation, Buyer and the Seller Representatives each shall submit a written response thereto. The Independent Accountant shall base its determination solely on the terms, definitions and other applicable provisions of this Agreement, the written presentations of the Parties in accordance with the preceding sentence, and any written responses to interrogatories of the Independent Accountant (if applicable), and shall not subject base its determinations upon independent review. The Parties shall instruct the Independent Accountant to collateral attack make a written determination on each disputed matter (and no other matters) no later than sixty (60) calendar days after submission to the Independent Accountant for resolution and such determination will be conclusive and binding upon the Parties with respect to each disputed matter, absent fraud or manifest error. The Independent Accountant shall, by applying the principles set forth in this Agreement (including the requirements of Section 2(f)(i)) and the Accounting Principles, as applicable), only decide the specific Disputed Items and its decision for each Disputed Item must be within the range of values assigned to each such item by the Buyer (in the Closing Balance Sheet or in Buyer’s calculation of the Final Closing Net Working Capital, the Final Cash Amount, the Final Adjusted Debt Amount, the Final Seller Transaction Expenses or the Final Seller Closing Payment) or the Seller Representatives (in the Dispute Notice as may be updated pursuant to paragraph (iii) below). The proposed Closing Balance Sheet and the Final Closing Net Working Capital, the Final Cash Amount, the Final Adjusted Debt Amount, the Final Seller Transaction Expenses and the Final Seller Closing Payment will be revised by the Independent Accountant as appropriate to reflect the resolution of any reason absent manifest error or fraudsuch claims pursuant to this Section 2(f)(ii). The fees and expenses of the Independent Actuary arising from Accountant incurred in the resolution of such arbitration dispute shall be paid borne by Buyer and the Seller Representatives (on behalf of Sellers) in such proportion as is appropriate to reflect the relative benefits received by Buyer and the Sellers from the resolution of the dispute, which proportionate allocation shall be determined by the Parties pro rata based on where Independent Accountant at the Independent Actuary’s time the determination of the New Reinsurance Premium falls in comparison to Independent Accountant is rendered on the amount claimed by ▇▇▇▇▇ in merits. For example, if the Seller Representatives challenge the calculation of the Final Closing Statement Net Working Capital by an amount of $100,000, but the Independent Accountant determines that the Seller Representatives have a valid claim for only $40,000 (i.e., the Seller Representatives prevail as to 40% of its claim), then Buyer shall bear 40% of the fees and expenses of the Independent Accountant and the amount claimed Seller Representatives (on behalf of the Sellers) shall bear the other 60% of such fees and expenses. Each of the Parties agrees to use its commercially reasonable efforts to cooperate with the Independent Accountant (including by executing a customary engagement letter reasonably acceptable to it) and to cause the Reinsurer in Independent Accountant to resolve any such dispute as soon as practicable after the True-Up Dispute Noticecommencement of the Independent Accountant’s engagement.
(diii) For purposes of this Section 2(f), Buyer will provide the Seller Representatives with reasonable access to the books and records used in the preparation of the Closing Balance Sheet and the calculations of the Final Closing Net Working Capital, the Final Cash Amount, the Final Adjusted Debt Amount, the Final Seller Transaction Expenses and the Final Seller Closing Payment and shall make its (and the Company) financial staff and accountants (subject to the execution of customary work paper access letters if requested) reasonably available to the Seller Representatives and their accountants and other representatives and to the Independent Accountant upon reasonable notice and during normal business hours during the (a) review by the Seller Representatives of the calculations of the Final Closing Net Working Capital, the Final Cash Amount, the Closing Balance Sheet and the Final Adjusted Debt Amount, the Final Seller Transaction Expenses and the Final Seller Closing Payment, (b) the Discussion Period and (c) the resolution by Buyer and the Seller Representatives or the Independent Accountant of any objections thereto. If the New Reinsurance Premium Buyer does not provide access to any books, records, working papers, and personnel reasonably requested by the Seller Representatives or any of their authorized representatives, as finally determined pursuant required by this Section, within three Business Days of request therefor (or such shorter period as may remain in the Discussion Period), the Discussion Period shall be extended by one day for each additional day required for Buyer to fully respond to such request. During the Discussion Period, the Seller Representatives shall be entitled to update the Dispute Notice from time to time to remove items or amounts in dispute by providing written notice thereof to Buyer based on information learned or provided under this Section 3.3 is paragraph (provided, however, that in no instance shall the Seller Representatives be entitled to update the Dispute Notice to add additional items or amounts in dispute to the Dispute Notice); provided that such access does not (i) greater than unreasonably disrupt the Estimated New Reinsurance Premium (such difference, a “Positive Adjustment Amount”), then Aspen shall pay to the Reinsurer (or to the applicable Trust Accounts, to the extent that the Reinsurer’s Posted Collateral is less than the Initial Required Collateral Amount), by wire transfer of immediately available funds to one or more accounts designated in writing by the Reinsurer, the Positive Adjustment Amount within five (5) Business Days following final determination normal operations of the New Reinsurance Premium pursuant to this Section 3.3 Parties’ respective businesses or (ii) less than based on advice of counsel (A) result in the Estimated New Reinsurance Premium waiver of any attorney client privilege, (the absolute value of such difference, a “Negative Adjustment Amount”), then Aspen shall reduce the Funds Withheld Account Balance by the Negative Adjustment AmountB) create any Liability under applicable Law or (C) violate any obligation with respect to confidentiality.
Appears in 1 contract
Post-Closing Adjustment. (a) No later than forty-five Within sixty (4560) days following after the Closing Date, Aspen Purchaser shall, in its absolute discretion be entitled (but shall not, for the avoidance of doubt, be required) to prepare and deliver to the Reinsurer a detailed statement in the same form as the Closing Statement (the “Final Closing Statement”) setting forth Aspen’s Holder Representative good faith calculation of the Net Working Capital as at Closing (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 “Proposed Closing Balance Sheet”). The Proposed Closing Balance Sheet shall include all of the balance sheet line items included in the Estimated 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 amountsBalance Sheet.
(b) Upon receipt of During 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 thirty (4530) days of immediately following the ReinsurerHolder Representative’s receipt of the Final Proposed Closing Statement, the Reinsurer may deliver written notice Balance Sheet (the “True-Up Dispute NoticeClosing Balance Sheet Review Period”), the Holder Representative will be provided with reasonable access (including electronic access) 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 financial records of the Reinsurer to deliver such True-Up Dispute Notice within Company, for purpose of reviewing the prescribed time period will constitute Proposed Closing Balance Sheet and Purchaser, the Reinsurer’s acceptance as final Company and their respective Representatives shall assist and reasonably cooperate in good faith with the Holder Representative, in connection with its review of the Final Proposed 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 amountsBalance Sheet.
(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 Holder Representative shall notify Purchaser in writing (the “True-up Dispute Cooling-Off PeriodNotice of Disagreement”)) prior to the expiration of the Closing Balance Sheet Review Period if the Holder Representative disagrees with the Proposed Closing Balance Sheet. The Notice of Disagreement shall set forth in reasonable detail the basis for such dispute, the items and amounts in dispute shall be submitted for review to the Independent Actuary for final determination within forty-five (45) days after such submission. The Independent Actuary shall decide all matters relating to the procedures to be followed for resolution of the dispute, including those relating to the submission and receipt of information and documents; provided, however, that at the request of either Aspen or the Reinsurer, a meeting shall be held at which the Parties may present their views, that both Aspen involved and the Reinsurer shall have equal access to the Independent Actuary, and that all information and documents which either Party delivers or makes available to the Independent Actuary shall be furnished to the other Party as well. The review by the Independent Actuary shall be limited solely to the disputed items (and any items affected thereby) and amounts in the True-Up Dispute Notice that remain unresolved. Any determination by the Independent Actuary shall not be outside the range defined by the respective amounts in the Final Closing Statement and the True-Up Dispute Notice, and such determination shall be final and binding upon, and non-appealable by, the Parties and their respective successors and assigns for all purposes of this Agreement, and not subject to collateral attack for any reason absent manifest error or fraud. The fees and expenses of the Independent Actuary arising from such arbitration shall be paid by the Parties pro rata based on where the Independent ActuaryHolder Representative’s determination of the New Reinsurance Premium falls in comparison amount of the Net Working Capital. If no Notice of Disagreement is given to Purchaser prior to the amount claimed by ▇▇▇▇▇ in expiration of the Final Closing Statement and Balance Sheet Review Period, then the amount claimed Proposed Closing Balance Sheet shall be deemed to have been accepted by the Reinsurer in Holder Representative and shall become final, binding and conclusive upon the True-Up Dispute NoticeParties.
(d) If a Notice of Disagreement is given to Purchaser prior to the New Reinsurance Premium expiration of the Closing Balance Sheet Review Period, then the Holder Representative and Purchaser shall meet (which meeting may take place via teleconference) shall confer in good faith for a period of up to thirty (30) calendar days of delivery of such Notice of Disagreement (or at such other time and place mutually agree between the parties) and use all reasonable efforts to resolve any differences that they may have with respect to the matters specified in the Notice of Disagreement.
(e) If the Holder Representative and Purchaser have been unable to resolve all of the differences they may have with respect to the matters specified in the Notice of Disagreement the such thirty (30) days’ period (or such other period as finally determined may be mutually agreed by Purchaser and the Holder Representative), either the Holder Representative or Purchaser may submit any amounts remaining in dispute (the “Disputed Amounts”) for resolution to an Accounting Arbitrator who shall have the privileges, powers and immunities of an arbitrator. The Accounting Arbitrator shall only decide the specific items under dispute by the parties and their decision for each Disputed Amount must be within the range of values assigned to each such item in the Proposed Closing Balance Sheet and the Notice of Disagreement, respectively. Each of Purchaser and the Holder Representative shall submit a statement of its position and supporting documentation within twenty (20) days of engagement of the Accounting Arbitrator. The Accounting Arbitrator shall be instructed to make a determination as soon as practicable, and in any event within sixty (60) calendar days after their engagement. The Accounting Arbitrator shall prepare a written statement setting forth their resolution of the Disputed Amounts and adjustments to the Proposed Closing Balance Sheet.
(f) The statement which is (i) the Estimated Closing Balance Sheet delivered by the Company to the Purchaser, if the Purchaser fails to deliver the Proposed Closing Balance Sheet to the Company, (ii) the Proposed Closing Balance Sheet, if the Holder Representative fails to deliver through the expiration of the Closing Balance Sheet Review Period a Notice of Disagreement, or (iii) the closing balance sheet statement as adjusted through an agreement of Purchaser and the Holder Representative after resolving the Disputed Amounts set forth in the Notice of Disagreement, (iv) the closing balance sheet statement as adjusted through the determination of the Accounting Arbitrator pursuant to this Section 3.3 is 2.12 (i) greater than the Estimated New Reinsurance Premium (such difference, a “Positive Adjustment AmountFinal Closing Balance Sheet”). The Final Closing Balance Sheet shall be final, then Aspen binding and conclusive on the parties.
(g) The Estimated Closing Statement, the Proposed Closing Statement, the Final Closing Statement and all related calculations and documents shall pay to be prepared in accordance with GAAP applied using the Reinsurer (or to the applicable Trust Accountssame accounting methods, policies, practices and procedures, with consistent classifications, judgments and estimation methodology, in each case to the extent consistent with GAAP, as were used in the preparation of the Annual Financial Statements (as defined below); provided however, that the ReinsurerNet Working Capital, and the Company’s Posted Collateral is less than the Initial Required Collateral Amount), by wire transfer of immediately available funds to one or more accounts designated in writing by the Reinsurer, the Positive Adjustment Amount within five (5) Business Days following final determination of the New Reinsurance Premium Debt shall be adjusted as defined pursuant to this Section 3.3 or (ii) less than the Estimated New Reinsurance Premium (the absolute value of such difference, a “Negative Adjustment Amount”terms hereof), then Aspen shall reduce the Funds Withheld Account Balance by the Negative Adjustment Amount.
Appears in 1 contract
Post-Closing Adjustment. (ai) No As promptly as practicable, but in no event later than forty-five sixty (4560) calendar days following the Closing Date, Aspen Parent shall deliver cause to be prepared in accordance with the Specified Accounting Principles, and delivered to the Reinsurer a detailed statement in Equityholder Representative an unaudited balance sheet of the same form Company as of immediately prior to the Closing Statement (the “Final Closing Balance Sheet”), together with a statement (the “Parent Closing Statement”) setting forth Aspenin reasonable detail Parent’s good faith calculation of each of (i) the New Reinsurance Premium (including the New Reinsurance Premium Accrued InterestClosing Working Capital, the Roll-forward Amount and the ULAE Reimbursement Amount) and (ii) the Initial Required Collateral AmountClosing Indebtedness and (iii) the Closing Cash and attaching all relevant backup materials, schedules and the illustration prepared as set forth above, in each case, as detail reasonably acceptable to the Equityholder Representative.
(ii) From and after the delivery of the Closing DateBalance Sheet and the Parent Closing Statement, together Parent, and, as necessary, any Affiliate of Parent, shall provide the Equityholder Representative and any accountants or advisors retained by the Equityholder Representative with all accounting, actuarial reasonable access to the books and other data and documentation reasonably necessary records of the Surviving Corporation (or any successor thereto) for the Reinsurer purposes of: (A) enabling the Equityholder Representative and its accountants and advisors to calculate, and to review ▇▇▇▇▇Parent’s proposed final calculations calculation of such amountseach of the Closing Working Capital, the Closing Indebtedness and the Closing Cash; and (B) identifying any dispute related to the calculation of each of the Closing Working Capital, the Closing Indebtedness and the Closing Cash set forth in the Parent Closing Statement.
(biii) Upon receipt If the Equityholder Representative disputes the calculation of any of the Final Closing Working Capital, the Closing Indebtedness or the Closing Cash set forth in the Parent Closing Statement, then 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 Equityholder Representative shall be required to make any work papers available to the Reinsurer unless the Reinsurer has signed deliver 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 a “True-Up Dispute Notice”) to Aspen Parent and the Escrow Agent during the 30-day period commencing upon receipt by the Equityholder Representative of any objectionsthe Closing Balance Sheet and the Parent Closing Statement (the “Review Period”). The Dispute Notice shall set forth, specifying in reasonable detail any contested amounts detail, the principal basis for the dispute of such calculation.
(iv) If the Equityholder Representative does not deliver a Dispute Notice to Parent prior to the expiration of the Review Period, Parent’s calculation of each of the Closing Working Capital, the Closing Indebtedness and the basis therefor, which Closing Cash set forth in 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 Parent 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 final and binding on Parent, the Reinsurer as final, except to Equityholder Representative and the extent that such amounts are affected by any disputed amountsCompany Stockholders for all purposes of this Agreement.
(cv) If Aspen the Equityholder Representative delivers a Dispute Notice to Parent prior to the expiration of the Review Period, then the Equityholder Representative and Parent shall use commercially reasonable efforts to reach agreement on the calculation of each of the Closing Working Capital, the Closing Indebtedness and the Reinsurer Closing Cash, as applicable. If the Equityholder Representative and Parent are unable to resolve all disagreements reach agreement on the calculation of each of the Closing Working Capital, the Closing Indebtedness and the Closing Cash within 20 calendar days after the end of the Review Period, the Equityholder Representative, on the one hand, or Parent, on the other hand, shall have the right to refer such dispute to a nationally recognized accounting firm chosen by Parent and the Equityholder Representative (such firm, or any successor thereto, being referred to herein as the “Designated Accounting Firm”) after such 20th day. In connection with the resolution of any such dispute by the Designated Accounting Firm: (i) each of Parent and the Equityholder Representative shall have a reasonable opportunity to meet with the Designated Accounting Firm to provide their respective views as to any disputed issues with respect to the Final calculation of each of the Closing Statement Working Capital, the Closing Indebtedness and the Closing Cash; (ii) the Designated Accounting Firm shall determine the Closing Working Capital in accordance with the Specified Accounting Principles within thirty (30) 30 calendar days following ▇▇▇▇▇’s receipt of such referral and, upon reaching such determination, shall deliver a True-Up Dispute Notice copy of its calculations (the “True-up Dispute Cooling-Off PeriodExpert Calculations”)) to the Equityholder Representative, Parent and the Escrow Agent; and (iii) the determination of each of the Closing Working Capital, the items and amounts in dispute shall be submitted for review to the Independent Actuary for final determination within forty-five (45) days after such submission. The Independent Actuary shall decide all matters relating to the procedures to be followed for resolution of the dispute, including those relating to the submission and receipt of information and documents; provided, however, that at the request of either Aspen or the Reinsurer, a meeting shall be held at which the Parties may present their views, that both Aspen Closing Indebtedness and the Reinsurer shall have equal access to the Independent Actuary, and that all information and documents which either Party delivers or makes available to the Independent Actuary shall be furnished to the other Party as well. The review Closing Cash made by the Independent Actuary shall be limited solely to the disputed items (and any items affected thereby) and amounts in the True-Up Dispute Notice that remain unresolved. Any determination by the Independent Actuary shall not be outside the range defined by the respective amounts in the Final Closing Statement and the True-Up Dispute Notice, and such determination Designated Accounting Firm shall be final and binding upon, and non-appealable byon Parent, the Parties Equityholder Representative and their respective successors and assigns the Company Stockholders for all purposes of this Agreement, and not subject to collateral attack for any reason absent manifest error error. In calculating each of the Closing Working Capital, the Closing Indebtedness and the Closing Cash, the Designated Accounting Firm shall be limited to addressing any particular disputes referred to in the Dispute Notice. The Expert Calculations (i) shall reflect in detail the differences, if any, between the Closing Working Capital, the Closing Indebtedness and the Closing Cash, as applicable, reflected therein and the Closing Working Capital, the Closing Indebtedness and the Closing Cash, respectively, set forth in the Parent Closing Statement, and (ii) with respect to any specific discrepancy or frauddisagreement, shall be no greater than the higher amount calculated by Parent or the Equityholder Representative, as the case may be, and no lower than the lower amount calculated by Parent or the Equityholder Representative as the case may be. The fees and expenses of the Independent Actuary arising from such arbitration Designated Accounting Firm shall be paid by Parent and the Parties pro rata Equityholder Representative (on behalf of the Equityholders) from the Equityholder Representative Expense Fund in inverse proportion as they may prevail (based on where the Independent Actuary’s determination of disputed items as resolved by the New Reinsurance Premium falls in comparison Designated Accounting Firm as compared to the amount claimed disputed items proposed by ▇▇▇▇▇ in the Final Closing Statement Parent and the amount claimed Equityholder Representative, respectively), as determined by the Reinsurer in the True-Up Dispute NoticeDesignated Accounting Firm.
(d) If the New Reinsurance Premium as finally determined pursuant to this Section 3.3 is (i) greater than the Estimated New Reinsurance Premium (such difference, a “Positive Adjustment Amount”), then Aspen shall pay to the Reinsurer (or to the applicable Trust Accounts, to the extent that the Reinsurer’s Posted Collateral is less than the Initial Required Collateral Amount), by wire transfer of immediately available funds to one or more accounts designated in writing by the Reinsurer, the Positive Adjustment Amount within five (5) Business Days following final determination of the New Reinsurance Premium pursuant to this Section 3.3 or (ii) less than the Estimated New Reinsurance Premium (the absolute value of such difference, a “Negative Adjustment Amount”), then Aspen shall reduce the Funds Withheld Account Balance by the Negative Adjustment Amount.
Appears in 1 contract
Post-Closing Adjustment. (ai) No As promptly as reasonably practicable, but in no event later than forty-five ninety (4590) days following the Closing Date, Aspen Parent shall deliver cause to be prepared in accordance with the Specified Accounting Principles and the sample calculation attached as Schedule 1.01(a) and delivered to the Reinsurer Securityholder Representative a detailed statement in the same form as the Closing Statement (the “Final Parent Closing Statement”) setting forth Aspenin reasonable detail Parent’s proposed good faith calculation of (i) the New Reinsurance Premium Adjustment Amount (including proposed good faith and reasonably detailed calculations of Closing Working Capital, Closing Indebtedness, Closing Cash and Unpaid Company Transaction Expenses) (the New Reinsurance Premium Accrued Interest“Parent Closing Date Calculations”), together with reasonably detailed supporting documentation for such calculations; provided, that in the event Parent does not deliver the Parent Closing Statement in accordance with the foregoing sentence, the Roll-forward Adjustment Amount shall be deemed to equal zero and shall be deemed final and binding on Parent, the Securityholder Representative and the ULAE Reimbursement Amount) and Securityholders as the Adjustment Amount for all purposes of this Agreement.
(ii) During the Initial Required Collateral Amount, in each case, as thirty (30) day period commencing upon receipt by the Securityholder Representative of the Parent Closing DateStatement (the “Review Period”), together Parent shall provide the Securityholder Representative and any accountants or advisors retained by the Securityholder Representative with all accounting, actuarial reasonable access to the books and other data and documentation reasonably necessary records of the Company for the Reinsurer purposes of (A) enabling the Securityholder Representative and its accountants and advisors to calculate, and to review ▇▇▇▇▇the Parent Closing Statement, including the Parent Closing Date Calculations and Parent’s proposed final calculations calculation of, the Adjustment Amount as reflected in the Parent Closing Statement and (B) identifying any dispute related to the calculation of such amountsthe Adjustment Amount set forth in the Parent Closing Statement.
(biii) Upon receipt of If the Final Securityholder Representative disputes the Parent Closing Statement, the Reinsurer and its authorized Representatives will be given reasonable access to all accounting, actuarial and other data and documentation related to Parent Closing Date Calculations or the preparation of Adjustment Amount set forth in 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 Parent Closing Statement, then the Reinsurer may Securityholder Representative shall deliver a written notice (the an “TrueAdjustment |US-Up DOCS\123754940.16|| Dispute Notice”) to Aspen Parent prior to the expiration of any objectionsthe Review Period. The Adjustment Dispute Notice shall set forth, specifying in reasonable detail any contested amounts detail, the basis for the dispute and the basis thereforSecurityholder Representative’s proposed determination of the Adjustment Amount (including, which as applicable, proposed calculations of Closing Working Capital, Closing Indebtedness, Closing Cash and Unpaid Company Transaction Expenses).
(iv) If the Reinsurer may have Securityholder Representative does not deliver an Adjustment Dispute Notice to Parent prior to the Final expiration of the Review Period, the Adjustment Amount set forth in the Parent Closing Statement shall be deemed final and binding on Parent, the Securityholder Representative and the Securityholders as the Adjustment Amount for all purposes of this Agreement.
(v) If the Securityholder Representative delivers an Adjustment Dispute Notice to Parent prior to the expiration of the Review Period, then the Securityholder Representative and Parent shall meet, confer and exchange any additional relevant information reasonably requested by the other Party regarding the computation of the Adjustment Amount for a period of twenty (20) days following the delivery of the Adjustment Dispute Notice to Parent, and use reasonable best efforts to resolve by written agreement (the “Agreed Modifications”) any differences as to the Adjustment Amount. In the event Parent and the Securityholder Representative so resolve any such differences, the Adjustment Amount set forth in the Parent Closing Statement, as adjusted by the Agreed Modifications shall be final and binding as the Adjustment Amount for all purposes of this Agreement. The failure If the Securityholder Representative and Parent are unable to reach agreement on the calculation of the Reinsurer to deliver such True-Up Adjustment Amount within the twenty (20) day period following the delivery of the Adjustment Dispute Notice within to Parent, then either the prescribed time period will constitute Securityholder Representative or Parent may submit the Reinsurer’s acceptance objections to an independent nationally recognized “Big 4” accounting firm (such firm, or any successor thereto, being referred to herein as final the “Designated Accounting Firm”) after such twentieth (20th) day. In resolving any disputed item, the Designated Accounting Firm (x) shall determine the Closing Working Capital, Closing Indebtedness, Closing Cash and Unpaid Company Transaction Expenses in accordance with the respective definitions thereof and the other applicable provisions of the Final Closing Statement this Agreement, (y) shall limit its review to matters still in dispute as determined by ▇▇▇▇▇. Any amounts not disputed specifically set forth in the True-Up Adjustment Dispute Notice (if one is delivered) shall be deemed to be accepted by the Reinsurer as final, except and only to the extent that such amounts matters are affected still in dispute) and (z) shall act as an expert and not as an arbitrator. The Designated Accounting Firm shall be directed by any disputed amounts.
(c) If Aspen Parent and the Reinsurer are unable Securityholder Representative to resolve all disagreements the unresolved objections as promptly as reasonably practicable in accordance with respect to the Final Closing Statement terms of this Agreement, and, in any event, within thirty (30) days following ▇▇▇▇▇’s receipt of such referral, and, upon reaching such determination, to deliver a True-Up Dispute Notice copy of its calculations (the “True-up Dispute Cooling-Off PeriodExpert Calculations”)) to the Securityholder Representative and Parent. In connection with the resolution of any such dispute by the Designated Accounting Firm, each of Parent, the items Securityholder Representative and amounts in dispute their respective advisors and accountants shall be submitted for review have a reasonable opportunity to meet with the Designated Accounting Firm to provide their respective views as to any disputed issues with respect to the Independent Actuary for final determination within forty-five (45) days after such submissioncalculation of the Adjustment Amount. The Independent Actuary shall decide all matters relating to the procedures to be followed for resolution determination of the dispute, including those relating to the submission and receipt of information and documents; provided, however, that at the request of either Aspen or the Reinsurer, a meeting shall be held at which the Parties may present their views, that both Aspen and the Reinsurer shall have equal access to the Independent Actuary, and that all information and documents which either Party delivers or makes available to the Independent Actuary shall be furnished to the other Party as well. The review Adjustment Amount made by the Independent Actuary shall be limited solely to the disputed items (and any items affected thereby) and amounts in the True-Up Dispute Notice that remain unresolved. Any determination by the Independent Actuary shall not be outside the range defined by the respective amounts in the Final Closing Statement and the True-Up Dispute Notice, and such determination Designated Accounting Firm shall be final and binding upon, and non-appealable byon Parent, the Parties Securityholder Representative and their respective successors and assigns the Securityholders for all purposes of this Agreement, and not subject to collateral attack for any reason absent manifest error error. The Expert Calculations (A) shall reflect in detail the differences, if any, between the calculation of the Adjustment Amount reflected in the Adjustment Dispute Notice and the calculation of the Adjustment Amount set forth in the Parent Closing Statement and (B) with respect to any specific discrepancy or frauddisagreement, shall be no greater than the higher amount calculated by Parent or the Securityholder Representative, as the case may be, and no lower than the lower amount calculated by Parent or the Securityholder |US-DOCS\123754940.16|| Representative as the case may be. The fees and expenses of the Independent Actuary arising from such arbitration Designated Accounting Firm shall be paid borne by Parent, on the one hand, and the Securityholder Representative, on behalf of the Securityholders, on the other hand, in inverse proportion as they may prevail on the matters resolved by the Parties pro rata Designated Accounting Firm, which proportionate allocation shall be calculated on an aggregate basis based on where the Independent Actuary’s determination relative dollar values of the New Reinsurance Premium falls amounts in comparison dispute and shall be determined by the Designated Accounting Firm at the time the determination is rendered on the merits of the matters submitted to the amount claimed by ▇▇▇▇▇ in the Final Closing Statement and the amount claimed by the Reinsurer in the True-Up Dispute NoticeDesignated Accounting Firm.
(dvi) If the New Reinsurance Premium Adjustment Amount, as finally determined in accordance with this Section 2.07(b), is a negative number, then Parent and the Securityholder Representative shall provide a joint written instruction to the Escrow Agent instructing it to distribute the amount of such Adjustment Amount as instructed by Parent rom the Escrow Fund. In the event there is an insufficient amount in the Escrow Fund to satisfy the Adjustment Amount, Parent shall be entitled to recover directly from the Joined Securityholder Indemnitors (in proportion to their respective Pro Rata Shares) any unsatisfied portion of the Adjustment Amount.
(vii) If the Adjustment Amount, as finally determined in accordance with this Section 2.07(b), is a positive number, then Parent shall promptly pay or cause to be paid the Adjustment Amount in a combination of cash and Parent Stock (solely in the case of payments made to holders of shares of Company Capital Stock who were Accredited Investors in accordance with Section 2.04(a)(i)) to the Securityholders (in proportion to their respective pro rata allocation of the Aggregate Merger Consideration Value and with the allocation of the Adjustment Amount to Parent Stock and cash, as applicable, in the same proportion as the Parent Stock and cash paid to each holder of Company Capital Stock at Closing in accordance with Section 2.04(a)(i)).
(viii) To the extent permitted under applicable Tax law, any amount paid to Company Stockholders pursuant to this Section 3.3 is (i2.07(b) greater than the Estimated New Reinsurance Premium (such difference, a “Positive Adjustment Amount”), then Aspen shall pay be treated as an adjustment to the Reinsurer (or to the applicable Trust Accounts, to the extent that the Reinsurer’s Posted Collateral is less than the Initial Required Collateral Amount), by wire transfer of immediately available funds to one or more accounts designated in writing by the Reinsurer, the Positive Adjustment Amount within five (5) Business Days following final determination of the New Reinsurance Premium pursuant to this Section 3.3 or (ii) less than the Estimated New Reinsurance Premium (the absolute value of such difference, a “Negative Adjustment Amount”), then Aspen shall reduce the Funds Withheld Account Balance by the Negative Adjustment AmountAggregate Merger Consideration Value for all Tax purposes.
Appears in 1 contract
Sources: Merger Agreement (Skillz Inc.)
Post-Closing Adjustment. (a) No As promptly as practicable, but no later than forty-five one hundred eighty (45180) days following after the Closing Date, Aspen shall deliver Cactus will cause to the Reinsurer be prepared and delivered to B▇▇▇▇ H▇▇▇▇▇ a detailed statement in the same form as the Closing Statement (the “Final Post-Closing Statement”) setting forth Aspen’s the good faith calculation of the Closing Working Capital (iand the resulting Closing Working Capital Overage Amount (if any) or Closing Working Capital Underage Amount (if any), as applicable), the New Reinsurance Premium Closing Capital Expenditure Underage Amount (if any), the Closing Cash Amount, the Closing Debt Amount, and the Closing Transaction Expenses. Together with the delivery of the Post-Closing Statement, each of Cactus and the Company shall provide such schedules and data as may be reasonably appropriate to support the calculations of Closing Working Capital (and the resulting Closing Working Capital Overage Amount (if any) or Closing Working Capital Underage Amount (if any), as applicable), the Closing Capital Expenditure Underage Amount (if any), the Closing Cash Amount, the Closing Debt Amount, and the Closing Transaction Expenses set forth therein. Cactus shall prepare the Post-Closing Statement in accordance with the terms and provisions of the Agreement, 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 amountsTransaction Accounting Principles.
(b) Upon receipt B▇▇▇▇ H▇▇▇▇▇ shall have a period of sixty (60) days following delivery of the Final Post-Closing StatementStatement delivered pursuant to Section 3.6(a) to review the calculations set forth therein. During such sixty (60)-day period, the Reinsurer and its authorized Representatives will be given Company shall provide to B▇▇▇▇ H▇▇▇▇▇ reasonable access to all accountingwork papers, actuarial documentation and other data and documentation related to prepared or used by Cactus or the Company in connection with preparation of the Final Post-Closing Statement for (subject, in the purpose of, and to the extent reasonably necessary for, verifying the Final Closing Statement; provided, that no independent accountants or independent actuaries case of Aspen shall be required to make any work papers available of independent accountants, to the Reinsurer unless the Reinsurer has signed B▇▇▇▇ H▇▇▇▇▇ signing a customary agreement access letter relating to such access to work papers in form and substance reasonably acceptable to such independent accountants or independent actuaries, as applicableaccountants). 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 If B▇▇▇▇ H▇▇▇▇▇ disagrees with C▇▇▇▇▇’s calculation of any of the items set forth in the Post-Closing Statement delivered pursuant to Section 3.6(a), then B▇▇▇▇ H▇▇▇▇▇ shall, no later than the expiry of such sixty (60)-day period, deliver a written notice to Cactus and the Company disagreeing with such calculation and which specifies B▇▇▇▇ H▇▇▇▇▇’▇ calculation of such amount and the resulting calculation of whichever of the Closing Working Capital (and the resulting Closing Working Capital Overage Amount (if any) or Closing Working Capital Underage Amount (if any), as applicable), the Closing Capital Expenditure Underage Amount (if any), the Closing Cash Amount, the Closing Debt Amount, and the Closing Transaction Expenses, is affected (such notice, the “Dispute Notice”), and, in reasonable detail, the objecting party’s grounds for such disagreement. Any amounts not disputed in the True-Up Dispute Notice (if one is delivered) shall specify those items or amounts as to which the objecting party disagrees, and the objecting party shall be deemed to be accepted by have agreed with all other items and amounts contained in the Reinsurer as final, except Post-Closing Statement delivered pursuant to Section 3.6(a) to which it does not object in the extent that such amounts are affected by any disputed amountsDispute Notice.
(c) If Aspen In the event that B▇▇▇▇ H▇▇▇▇▇ and the Reinsurer C▇▇▇▇▇ are unable to resolve agree in writing on the resolution of all disagreements with respect items disputed in any Dispute Notice(s) duly delivered pursuant to the Final Closing Statement within Section 3.6(b) no later than thirty (30) days following delivery and receipt of such Dispute Notice(s), the unresolved disputed items may thereafter be referred by either B▇▇▇▇ H▇▇▇▇▇ or Cactus for final, binding resolution by an internationally recognized independent public accountant with significant experience in resolving purchase price disputes, that is mutually agreeable to B▇▇▇▇ H▇▇▇▇▇ and C▇▇▇▇▇ (the “Independent Expert”). The Independent Expert shall determine, acting as an expert and not an arbitrator, based solely on presentations and written submissions by B▇▇▇▇ H▇▇▇▇▇ and C▇▇▇▇▇’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 such submission. The Independent Actuary shall decide all matters relating to the procedures to be followed for resolution of the dispute, including those relating to the submission and receipt of information and documents; provided, however, that at the request of either Aspen or the Reinsurer, a meeting shall be held at which the Parties may present their views, that both Aspen and the Reinsurer shall have equal access to the Independent Actuarywithout ex parte communications, and that all information and documents which either Party delivers not by independent review, only those items or makes available to the Independent Actuary shall be furnished to the other Party as well. The review by the Independent Actuary shall be limited solely to the disputed items (and any items affected thereby) and amounts in the TruePost-Up Dispute Notice Closing Statement that remain unresolvedB▇▇▇▇ H▇▇▇▇▇ and C▇▇▇▇▇ were unable to resolve. Any determination In making its determination, the Independent Expert (i) shall be bound by the Independent Actuary shall terms and conditions of this Agreement, including the Transaction Accounting Principles, the definitions of Closing Working Capital, Closing Working Capital Overage Amount, Closing Working Capital Underage Amount, the Closing Capital Expenditure Underage Amount, the Closing Cash Amount, the Closing Debt Amount, the Closing Transaction Expenses and the terms of this Section 3.6(c), and (ii) may not be outside assign any value with respect to a disputed amount that is greater than the range defined highest value for such amount claimed by any of the respective amounts Company, B▇▇▇▇ H▇▇▇▇▇ or Cactus or that is less than the lowest value for such amount claimed by any of the Company, B▇▇▇▇ H▇▇▇▇▇ or Cactus in the Final Post-Closing Statement and the True-Up Dispute Notice. The Independent Expert shall deliver to B▇▇▇▇ H▇▇▇▇▇, Cactus and such determination the Company, as promptly as practicable, but in any event no later than sixty (60) days of its engagement pursuant to this Section 3.6(c), a report setting forth its calculations, which report shall be final and binding upon, upon B▇▇▇▇ H▇▇▇▇▇ and non-appealable by, the Parties and their respective successors and assigns for all purposes of this Agreement, and not subject to collateral attack for any reason absent manifest error or fraudCactus. The fees and expenses of the Independent Actuary arising from such arbitration Expert shall be paid borne by the Parties pro rata based on where the Independent Actuary’s determination of the New Reinsurance Premium falls in comparison to the amount claimed by B▇▇▇▇ H▇▇▇▇▇ or Cactus in inverse proportion to the Final Closing Statement and value of the amount claimed by the Reinsurer disputed amounts resolved in the True-Up Dispute Noticefavor of each such Person.
(d) If C▇▇▇▇▇ and B▇▇▇▇ H▇▇▇▇▇ agree that they will, and agree to cause the New Reinsurance Premium Company and their respective independent accountants to, reasonably cooperate and assist in the preparation of the Post-Closing Statement, and in the conduct of the reviews referred to in this Section 3.6, including the making available to the extent reasonably necessary of books, records, work papers and personnel (subject to reasonable confidentiality restrictions and to providing such assurances, releases, indemnities or other agreements as accountants may customarily require in such circumstances). The process set forth in this Section 3.6 shall be the exclusive remedy among the Parties for any disputes related to items required to be reflected on the Post-Closing Statement or included in the calculation of Closing Working Capital (and the resulting Closing Working Capital Overage Amount (if any) or Closing Working Capital Underage Amount (if any), as applicable), the Closing Capital Expenditure Underage Amount (if any), the Closing Cash Amount, the Closing Debt Amount, and the Closing Transaction Expenses; provided, that nothing in this Section 3.6(d) shall limit or otherwise restrict Cactus’s rights or ability to seek or recover any amounts under the R&W Policy.
(e) If:
(i) the Closing Payment Amount exceeds the Estimated Payment Amount, then Cactus shall pay to B▇▇▇▇ H▇▇▇▇▇ the amount by which the Closing Payment Amount exceeds the Estimated Payment Amount; or
(ii) the Estimated Payment Amount exceeds the Closing Payment Amount, then B▇▇▇▇ H▇▇▇▇▇ shall pay to Cactus the amount by which the Estimated Payment Amount exceeds the Closing Payment Amount.
(f) Any payment pursuant to Section 3.6(e) shall be made at a mutually convenient time and place no later than two (2) Business Days after the Closing Payment Amount has been finally determined pursuant to this Section 3.3 is (i) greater than 3.6, by delivery by B▇▇▇▇ H▇▇▇▇▇ or Cactus, as the Estimated New Reinsurance Premium (such differencecase may be, a “Positive Adjustment Amount”), then Aspen shall pay to the Reinsurer (or to the applicable Trust Accounts, to the extent that the Reinsurer’s Posted Collateral is less than the Initial Required Collateral Amount), of cash by wire transfer of immediately available funds to one or more accounts the bank account designated in writing by the Reinsurerparty entitled to such payment, the Positive Adjustment Amount within five which notice shall be delivered no later than two (52) Business Days following final determination prior to the date such payment is to be made (or if not so designated, then by certified or official bank check payable in immediately available funds to the order of the New Reinsurance Premium pursuant party entitled to this Section 3.3 or (ii) less than the Estimated New Reinsurance Premium (the absolute value of such difference, a “Negative Adjustment Amount”payment in such amount), then Aspen shall reduce the Funds Withheld Account Balance by the Negative Adjustment Amount.
Appears in 1 contract
Sources: Framework Agreement (Cactus, Inc.)
Post-Closing Adjustment. (a) No later than forty-five (45) days As soon as reasonably practicable following the Closing Date, Aspen and in any event no later than 90 days thereafter, the Buyer shall deliver cause to the Reinsurer be prepared and delivered to Parent a detailed statement in the same form as the Closing Statement (the “Final Closing Statement”) setting forth Aspenthe Working Capital of the Company and the Company Subsidiaries as of the Effective Time (the “Closing Working Capital”), the Indebtedness of the Company and the Company Subsidiaries as of the Effective Time (the “Closing Indebtedness”), the Transactional Expenses of the Company and the Company Subsidiaries (the “Closing Transactional Expenses”) and the Special Receivable as of the Effective Time (the “Closing Special Receivable”). The Closing Statement shall be prepared in accordance with GAAP (with respect to such accounts as are required to be included on the Closing Statement), subject to the Agreed Accounting Principles and the applicable provisions of this Agreement. Parent and Buyer shall permit each other and their respective accountants to review promptly upon request all records necessary for the preparation by the Buyer and review by Parent of such Closing Statement and computation of the Closing Working Capital, the Closing Indebtedness, the Closing Transactional Expenses and the Closing Special Receivable and to take copies of the same. At the other party’s good faith calculation of request, Parent or Buyer, as the case may be, (i) shall reasonably cooperate and assist, and shall cause their respective Representatives to reasonably cooperate and assist, the New Reinsurance Premium requesting party and its Representatives in the preparation or review, as the case may be, of the Closing Statement (including by executing such documents and other instruments and taking further actions as may be reasonably required to cause a party’s accountants to deliver to the New Reinsurance Premium Accrued Interest, other party and its Representatives copies of their work paper relating to the Roll-forward Amount and computation of the ULAE Reimbursement AmountClosing Payment) and (ii) shall provide the Initial Required Collateral Amount, in each case, as of the Closing Date, together other party and its Representatives with all accounting, actuarial and other data and documentation any information reasonably necessary for the Reinsurer to review ▇▇▇▇▇’s proposed final calculations of such amountsrequested by them.
(b) Upon receipt of If Parent disputes the Final Closing Working Capital, the Closing Indebtedness, the Closing Transactional Expenses or the Closing Special Receivable as calculated by the Buyer and set forth on the Closing Statement, not more than 30 calendar days after the Reinsurer and its authorized Representatives will be given reasonable access to all accountingdate Parent receives the Buyer’s calculation thereof, actuarial and other data and documentation related Parent shall deliver to the preparation Buyer a Notice of Dispute. If no Notice of Dispute is delivered by Parent within such 30 calendar day period or if Parent delivers a written acceptance of the Final Closing Statement for during such 30 calendar day period, then such Closing Statement and Closing Working Capital, the purpose ofClosing Indebtedness, the Closing Transactional Expenses and to the extent reasonably necessary for, verifying Closing Special Receivable shall become final and binding as of the Final Closing Statement; provided, that no independent accountants end of such 30 calendar day period or independent actuaries the date of Aspen shall be required to make any work papers available to receipt by the Reinsurer unless the Reinsurer has signed a customary agreement relating to Buyer of such access to work papers in form and substance reasonably acceptable to such independent accountants or independent actuarieswritten acceptance, 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 In the event that Parent delivers to the Buyer a Notice of Dispute, the Buyer and the Reinsurer are unable to resolve all disagreements Parent shall promptly consult and cooperate with each other in good faith with respect to the Final specified points of disagreement in an effort to resolve the dispute and upon such resolution, if any, any adjustments to the Closing Statement or Closing Working Capital, the Closing Indebtedness, the Closing Transactional Expenses or the Closing Special Receivable shall be made as agreed upon by the Buyer and Parent. If any such dispute cannot be resolved by Parent and the Buyer within thirty (30) 30 calendar days following ▇▇▇▇▇’s receipt after the Buyer receives the Notice of a True-Up Dispute Notice Dispute, Parent and the Buyer shall jointly refer the dispute to Deloitte & Touche LLP (the “True-up Dispute Cooling-Off PeriodArbiter”), the items as an arbitrator to finally resolve, as soon as practicable, and amounts in dispute shall be submitted for review to the Independent Actuary for final determination any event within forty-five (45) 45 calendar days after such submissionreference, all points of disagreement with respect to the Closing Working Capital, the Closing Indebtedness, the Closing Transactional Expenses or the Closing Special Receivable reflected on the Closing Statement. For purposes of such arbitration each of Parent and the Buyer shall submit a proposed calculation of the Closing Working Capital, the Closing Indebtedness, the Closing Transactional Expenses or the Closing Special Receivable, as applicable. The Independent Actuary Arbiter shall decide apply the terms of Sections 2.4 and 2.5 of this Agreement and all matters relevant definitions contained herein, and shall otherwise conduct the arbitration under such procedures as the Parties may agree or, failing such agreement, under the then prevailing Commercial Rules of the American Arbitration Association. Parent and the Buyer shall each furnish the Arbiter with such work papers and other documents and information relating to the procedures disputed issues as the Arbiter shall request, and, subject to be followed for resolution of the disputeSection 6.4, including those relating to the submission and receipt of information and documents; provided, however, that at the request of either Aspen or the Reinsurer, a meeting shall be held at which the Parties may present their views, that both Aspen and the Reinsurer shall have equal access to the Independent Actuary, and that all information and documents which either Party delivers or makes available to the Independent Actuary shall be furnished provide copies to the other Party as well. The review by the Independent Actuary shall be limited solely of any work papers, documents and information so furnished to the disputed items (and any items affected thereby) and amounts in the True-Up Dispute Notice that remain unresolvedArbiter. Any determination by the Independent Actuary shall not be outside the range defined by the respective amounts in the Final Closing Statement and the True-Up Dispute Notice, and such determination shall be final and binding upon, and non-appealable by, Each of the Parties and their respective successors and assigns for all purposes of this Agreement, and not subject to collateral attack for any reason absent manifest error or fraudshall bear its own expenses in connection with the arbitration. The fees and expenses of the Independent Actuary arising from such Arbiter incurred in connection with the arbitration of the Closing Working Capital, the Closing Indebtedness, the Closing Transactional Expenses or the Closing Special Receivable, as applicable, shall be paid allocated between Parent and the Buyer by the Parties pro rata based on where the Independent Actuary’s determination of the New Reinsurance Premium falls Arbiter in comparison proportion to the amount claimed extent either of such Parties did not prevail on items in dispute with respect to the Closing Working Capital, the Closing Indebtedness, the Closing Transactional Expenses or the Closing Special Receivable, as applicable, reflected on the Closing Statement; provided, that such fees and expenses shall not include, so long as a Party complies with the procedures of this Section, the other Party’s outside counsel or accounting fees. The Parties agree not to engage in any ex parte communication with the Arbiter. All determinations by ▇▇▇▇▇ the Arbiter shall be final, conclusive and binding with respect to the Closing Working Capital, the Closing Indebtedness, the Closing Transactional Expenses or the Closing Special Receivable and the allocation of arbitration fees and expenses, in the Final absence of fraud or manifest error. The Closing Statement and the amount claimed Closing Working Capital (i) if deemed final in accordance with Section 2.5(b), as originally submitted by Parent, or (ii) if a Notice of Dispute has been timely delivered by the Reinsurer Buyer in accordance with this Section 2.5(c), as determined pursuant to the True-Up Dispute Noticeresolution of such dispute pursuant to this Section 2.5(c), shall be, respectively, the “Final Statement”, the “Final Working Capital”, the “Final Indebtedness”, the “Final Transactional Expenses” and the “Final Special Receivable”.
(d) If Based on the New Reinsurance Premium Closing Statement as finally determined pursuant under Section 2.5(a) or, if necessary, Section 2.5(b) or (c), the Closing Payment shall be increased or decreased, as the case may be, on dollar-for-dollar basis by the amount equal to this Section 3.3 is the following (the “Net Adjustment Amount”):
(i) greater than the sum of (a) any amount by which Closing Working Capital reflected on the Closing Statement exceeds the Estimated New Reinsurance Premium Working Capital, (such differenceb) any amount by which Estimated Indebtedness exceeds Final Indebtedness and (c) any amount by which Estimated Transactional Expenses exceed Final Transaction Expenses;
(ii) the sum of (x) any amount by which Estimated Working Capital exceeds the Closing Working Capital reflected on the Closing Statement, (y) any amount by which Final Indebtedness exceeds Estimated Indebtedness and (z) any amount by which Final Transactional Expenses exceed Estimated Transactional Expenses.
(e) If the Net Adjustment Amount is a “Positive positive number, then the Buyer shall pay or cause to be paid to Parent the Net Adjustment Amount”), or, if the Net Adjustment Amount is a negative number, then Aspen Parent shall pay cause to be paid to the Reinsurer (or Buyer the Net Adjustment Amount, in either case, plus interest, compounded annually, calculated using a 365 day year from the Closing Date through the date prior to the applicable Trust Accountsdate of payment at the prime lending rate of Bank of America, N.A. as in effect as of the Closing Date. Any payment so required to be made by either Parent or the extent that the Reinsurer’s Posted Collateral is less than the Initial Required Collateral Amount), Buyer shall be by wire transfer of immediately available funds to one or funds, not more accounts designated in writing by the Reinsurer, the Positive Adjustment Amount within five than seven (57) Business Days following after final determination of the New Reinsurance Premium thereof pursuant to this Section 3.3 or 2.5(c), to an account to be designated by the payee at least two (ii2) less than Business Days prior to the due date.
(f) Any adjustment attributable to the difference between the Estimated New Reinsurance Premium (Special Receivable and the absolute value of such differenceFinal Special Receivable shall not require any payment or set-off, a “Negative Adjustment Amount”), then Aspen but instead shall reduce increase or decrease the Funds Withheld Account Balance by amount to be remitted in accordance with the Negative Adjustment AmountSpecial Receivable payment process described in Section 6.14.
Appears in 1 contract
Sources: Securities Purchase Agreement (Esco Technologies Inc)
Post-Closing Adjustment. (ai) No As promptly as reasonably practicable, but in no event later than fortyseventy-five (4575) days following the Closing Date, Aspen Parent shall deliver cause to be prepared and delivered to the Reinsurer Member Representative a detailed statement in the same form as the Closing Statement (the “Final Parent Closing Statement”) setting forth Aspenin reasonable detail Parent’s good faith calculation of the Adjustment Amount (including good faith calculations of Closing Working Capital, Closing Indebtedness, Closing Cash and Company Transaction Expenses), together with supporting calculations and documentation in reasonable detail. The Parent Closing Statement shall be prepared, and the components thereof shall be calculated, in accordance with this Agreement and the Specified Accounting Principles. The Parties agree that the purpose of preparing the Parent Closing Statement is to measure the amount of Closing Working Capital, Closing Indebtedness, Closing Cash and Company Transaction Expenses, and the resulting Adjustment Amount, in accordance with this Agreement, and such processes are not intended to permit the introduction of different judgments, accounting methods, policies, principles, practices, procedures, classifications or estimation methodologies for the purpose of preparing the Parent Closing Statement or determining the Adjustment Amount or the components thereof. The calculations of Closing Working Capital, Closing Indebtedness, Closing Cash and Company Transaction Expenses, and the resulting Adjustment Amount, in the Parent Closing Statement will entirely disregard (i) any and all effects on the New Reinsurance Premium Acquired Companies (including the New Reinsurance Premium Accrued Interest, assets and liabilities of the Roll-forward Amount and Acquired Companies) as a result of the ULAE Reimbursement Amount) Transactions resulting from purchase accounting or any financing or refinancing arrangements entered into at any time by Parent or any of its Affiliates or any other transaction entered into by Parent or any of its Affiliates in connection with the consummation of the Transactions and (ii) the Initial Required Collateral Amount, in each case, as any of the plans, transactions, financings, payments or changes that Parent or any of its Affiliates initiates or makes, or causes to be initiated or made, after the Closing Datewith respect to the Acquired Companies or their respective business or assets, together or any facts or circumstances that are unique or particular to Parent or any of its Affiliates or any of their respective assets or liabilities. The Parent Closing Statement shall take into account information and events up to the date of delivery of the Parent Closing Statement that provides evidence of conditions that existed immediately prior to Closing in accordance with all accountingFASB Accounting Standards Codification Topic 855, actuarial and other data and documentation reasonably necessary for Subsequent Events but shall not take into account information or events that are indicative of conditions that arose after the Reinsurer to review ▇▇▇▇▇’s proposed final calculations of such amountsClosing.
(bii) Upon receipt by the Member Representative of the Final Parent Closing Statement, Parent shall provide the Reinsurer Member Representative and any accountants or advisors retained by the Member Representative with reasonable access during normal working hours, at the Member Representative’s sole expense, to the books and records, personnel and accountants of the Acquired Companies for the purposes of (A) enabling the Member Representative and its authorized Representatives will be given reasonable access accountants and advisors to all accountingcalculate, actuarial and other data to review Parent’s calculation of, the Adjustment Amount and documentation the components thereof as reflected in the Parent Closing Statement and (B) identifying (and contesting, if applicable) any dispute related to the preparation calculation of the Final Adjustment Amount set forth in the Parent Closing Statement for Statement.
(iii) If the purpose ofMember Representative disputes the Adjustment Amount set forth in the Parent Closing Statement, then the Member Representative shall deliver a written notice (an “Adjustment Dispute Notice”) to Parent and the Escrow Agent prior to the extent reasonably necessary for, verifying expiration of 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 day period commencing upon receipt by the Member Representative of the ReinsurerParent Closing Statement (the “Review Period”). The Adjustment Dispute Notice shall set forth, in reasonable detail, the principal basis and particulars for the dispute of such calculation and the Member Representative’s receipt determination of the Final Adjustment Amount (including proposed calculations of Closing Working Capital, Closing Indebtedness, Closing Cash and Company Transaction Expenses). To the extent the Adjustment Dispute Notice does not dispute a certain component of the Adjustment Amount included in the Parent Closing Statement, then such component shall be final, binding and non-appealable by Parent, the Reinsurer may Member Representative, the Company Securityholders and the Cash Plan Award Holders.
(iv) If the Member Representative does not deliver an Adjustment Dispute Notice to Parent prior to the expiration of the Review Period, the Adjustment Amount set forth in the Parent Closing Statement shall be deemed final and binding on Parent, the Member Representative, the Company Securityholders and the Cash Plan Award Holders as the Adjustment Amount for all purposes of this Agreement.
(v) If the Member Representative delivers an Adjustment Dispute Notice to Parent prior to the expiration of the Review Period, then the Member Representative and Parent shall meet, confer and exchange any additional relevant information reasonably requested by the other Party regarding the computation of the Adjustment Amount for a period of twenty (20) days following the delivery of the Adjustment Dispute Notice to Parent, and use reasonable best efforts to resolve by written notice agreement (the “True-Up Dispute NoticeAgreed Modifications”) any differences as to Aspen of any objections, specifying in reasonable detail any contested amounts the Adjustment Amount. In the event Parent and the basis thereforMember Representative so resolve any such differences, which the Reinsurer Adjustment Amount set forth in the Parent Closing Statement, as adjusted by the Agreed Modifications, shall be final and binding as the Adjustment Amount for all purposes of this Agreement. If the Member Representative and Parent are unable to reach agreement on the calculation of the Adjustment Amount within the twenty (20) day period following the delivery of the Adjustment Dispute Notice to Parent, then either the Member Representative or Parent may have submit the objections to a nationally recognized independent accounting firm reasonably acceptable to the Final Closing Statement. The failure of Member Representative and Parent (such firm, or any successor thereto, being referred to herein as the Reinsurer to deliver “Designated Accounting Firm”) after 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 ▇▇▇▇▇twentieth (20th) day. Any amounts not further submissions to the Designated Accounting Firm must be written and delivered to each party to the dispute. No Party shall engage in any ex-parte communication with the Designated Accounting Firm. In resolving any disputed item, the Designated Accounting Firm (x) shall determine the Closing Working Capital, Closing Indebtedness, Closing Cash and Company Transaction Expenses solely on the written presentations by Parent and the Member Representative which are in accordance with the respective definitions set forth in this Agreement and the Specified Accounting Principles, (y) shall limit its review to matters still in dispute as specifically set forth in the True-Up Adjustment Dispute Notice (if one is delivered) shall be deemed to be accepted by the Reinsurer as final, except and only to the extent that such amounts matters are affected still in dispute) and (z) shall act as an expert and not as an arbitrator. The Designated Accounting Firm shall be directed by any disputed amounts.
(c) If Aspen Parent and the Reinsurer are unable Member Representative to resolve all disagreements the unresolved objections as promptly as reasonably practicable in accordance with respect to the Final Closing Statement terms of this Agreement, and, in any event, within thirty (30) days following ▇▇▇▇▇’s receipt of such referral (or such later time as the Parties may mutually agree), and, upon reaching such determination, to deliver a True-Up Dispute Notice copy of its calculations (the “True-up Dispute Cooling-Off PeriodExpert Calculations”), the items and amounts in dispute shall be submitted for review ) to the Independent Actuary for final determination within forty-five (45) days after such submissionMember Representative, Parent and the Escrow Agent. The Independent Actuary shall decide all matters relating to the procedures to be followed for resolution determination of the dispute, including those relating to the submission and receipt of information and documents; provided, however, that at the request of either Aspen or the Reinsurer, a meeting shall be held at which the Parties may present their views, that both Aspen and the Reinsurer shall have equal access to the Independent Actuary, and that all information and documents which either Party delivers or makes available to the Independent Actuary shall be furnished to the other Party as well. The review Adjustment Amount made by the Independent Actuary shall be limited solely to the disputed items (and any items affected thereby) and amounts in the True-Up Dispute Notice that remain unresolved. Any determination by the Independent Actuary shall not be outside the range defined by the respective amounts in the Final Closing Statement and the True-Up Dispute Notice, and such determination Designated Accounting Firm shall be final and binding upon, and non-appealable byon Parent, the Parties Member Representative, the Company Securityholders and their respective successors and assigns the Cash Plan Award Holders for all purposes of this Agreement, absent fraud or manifest error. The Expert Calculations (A) shall reflect in detail the differences, if any, between the calculation of the Adjustment Amount reflected in the Adjustment Dispute Notice and not subject the calculation of the Adjustment Amount set forth in the Parent Closing Statement and (B) with respect to collateral attack for any reason absent manifest error specific discrepancy or frauddisagreement, shall be no greater than the higher amount calculated by Parent or the Member Representative, as the case may be, and no lower than the lower amount calculated by Parent or the Member Representative, as the case may be. The fees and expenses of the Independent Actuary arising from such arbitration Designated Accounting Firm shall be paid borne by Parent, on the one hand, and the Member Representative, on behalf of the Company Securityholders and the Cash Plan Award Holders, on the other hand, in inverse proportion as they may prevail on the matters resolved by the Parties pro rata Designated Accounting Firm, which proportionate allocation shall be calculated on an aggregate basis based on where the Independent Actuary’s determination relative dollar values of the New Reinsurance Premium falls amounts in comparison dispute and shall be determined by the Designated Accounting Firm at the time the determination is rendered on the merits of the matters submitted to the amount claimed by ▇▇▇▇▇ in the Final Closing Statement and the amount claimed by the Reinsurer in the True-Up Dispute NoticeDesignated Accounting Firm.
(dvi) If the New Reinsurance Premium Adjustment Amount, as finally determined pursuant to in accordance with this Section 3.3 is (i) greater than the Estimated New Reinsurance Premium (such difference, a “Positive Adjustment Amount”3.4(b), is a negative number, then Aspen Parent and the Member Representative shall pay to the Reinsurer promptly (or to the applicable Trust Accounts, to the extent that the Reinsurer’s Posted Collateral is less than the Initial Required Collateral Amount), by wire transfer of immediately available funds to one or more accounts designated and in writing by the Reinsurer, the Positive Adjustment Amount any event within five three (53) Business Days following the final determination of the New Reinsurance Premium pursuant Adjustment Amount) issue joint written instructions to this Section 3.3 or (ii) less than the Estimated New Reinsurance Premium (Escrow Agent directing the Escrow Agent to disburse to the SimpleNexus Surviving Company from the Escrow Fund in accordance with the Escrow Agreement an amount in cash equal to the absolute value of such difference, a “Negative Adjustment Amount”), then Aspen shall reduce the Funds Withheld Account Balance by the Negative Adjustment Amount.
(vii) If the Adjustment Amount, as finally determined in accordance with this Section 3.4(b), is a positive number, then Parent shall promptly (and in any event within three (3) Business Days following the final determination of the Adjustment Amount) (x) deposit with the Exchange Agent for disbursement to the Blocker Securityholders and the Non-Blocker Members (in proportion to their respective Pro Rata Portion of the Escrow Fund) an amount in cash equal to their respective aggregate Pro Rata Portion of the Adjustment Amount and (y) pay, or cause to be paid, to the SimpleNexus Surviving Company for further distribution to the holders of Cash Plan Awards (in proportion to their respective Pro Rata Portion of the Escrow Fund) in accordance with Section 3.2(k)(iii) an amount in cash equal to their respective aggregate Pro Rata Portion of the Adjustment Amount; provided, that, such amount shall not exceed an amount equal to the amount in the Escrow Fund.
(viii) Following the final determination of the Adjustment Amount in accordance with this Section 3.4(b), Parent and the Member Representative shall promptly (and in any event within three (3) Business Days following the final determination of the Adjustment Amount) execute and deliver joint written instructions to the Escrow Agent instructing the Escrow Agent to release from the Escrow Fund (x) to the Exchange Agent for distribution to the Blocker Securityholders and Non-Blocker Members their respective aggregate Pro Rata Portion of the amount then held in the Escrow Fund and (y) to the SimpleNexus Surviving Company for further distribution in cash to the holders of Cash Plan Awards in accordance with Section 3.2(k)(iii) their respective aggregate Pro Rata Portion of the amount then held in the Escrow Fund (collectively, the “Released Cash”). The Exchange Agent will then disburse to the Blocker Securityholders and Non-Blocker Members (in proportion to their respective Pro Rata Portion of the Escrow Fund) the portion of the Released Cash released for the benefit of the Blocker Securityholders and Non-Blocker Members in accordance with the payment delivery instructions set forth in such Blocker Securityholder’s and Non-Blocker Member’s Letter of Transmittal.
Appears in 1 contract
Sources: Merger Agreement (Ncino, Inc.)
Post-Closing Adjustment. (ai) No later than forty-five Within ninety (4590) days following after the Closing Date, Aspen Buyer shall prepare and deliver to Sellers a statement setting forth its calculation of Closing Working Capital, Closing Indebtedness, Closing Transaction Expenses, Closing Cash and the Reinsurer a detailed statement in the same form as amount of the Closing Statement (Payment, which statement shall contain a balance sheet of each of 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, Acquired Companies as of the Closing DateDate (without giving effect to the transactions contemplated herein) (the “Closing Statement”), together with all accountinga certificate executed by a duly authorized officer of Buyer certifying that the Closing Statement was prepared in accordance with (A) GAAP applied using the same accounting methods, actuarial practices, principles, policies and other data procedures, with consistent classifications, judgments 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 valuation and its authorized Representatives will be given reasonable access to all accounting, actuarial and other data and documentation related to estimation methodologies that were used in the preparation of the Final Annual Financial Statements as if such Closing Statement was being prepared as of a fiscal year end and (B) the definitions of Current Assets and Current Liabilities set forth herein (including, for the purpose ofavoidance of doubt, and Exhibit B attached hereto).
(ii) The “Post-Closing Adjustment” shall be an amount equal to the extent reasonably necessary forClosing Payment (as finally determined in accordance with Section 2.04(c)) minus the Estimated Closing Payment. If the Post-Closing Adjustment is a positive number, verifying Buyer shall pay to Sellers an amount equal to the Final Post-Closing StatementAdjustment in accordance with Section 2.04(c)(vi); provided, that there will be no independent accountants or independent actuaries of Aspen shall be required to make any work papers available to the Reinsurer positive adjustment for Closing Working Capital 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 actuariesClosing Working Capital, 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 such submission. The Independent Actuary shall decide all matters relating to the procedures to be followed for resolution of the dispute, including those relating to the submission and receipt of information and documents; provided, however, that at the request of either Aspen or the Reinsurer, a meeting shall be held at which the Parties may present their views, that both Aspen and the Reinsurer shall have equal access to the Independent Actuary, and that all information and documents which either Party delivers or makes available to the Independent Actuary shall be furnished to the other Party as well. The review by the Independent Actuary shall be limited solely to the disputed items (and any items affected thereby) and amounts in the True-Up Dispute Notice that remain unresolved. Any determination by the Independent Actuary shall not be outside the range defined by the respective amounts in the Final Closing Statement and the True-Up Dispute Notice, and such determination shall be final and binding upon, and non-appealable by, the Parties and their respective successors and assigns for all purposes of this Agreement, and not subject to collateral attack for any reason absent manifest error or fraud. The fees and expenses of the Independent Actuary arising from such arbitration shall be paid by the Parties pro rata based on where the Independent Actuary’s determination of the New Reinsurance Premium falls in comparison to the amount claimed by ▇▇▇▇▇ in the Final Closing Statement and the amount claimed by the Reinsurer in the True-Up Dispute Notice.
(d) If the New Reinsurance Premium as finally determined pursuant to this Section 3.3 2.04 exceeds an amount equal to one hundred five percent (105%) of Target Working Capital. If the Post-Closing Adjustment is (i) greater than the Estimated New Reinsurance Premium (such differencea negative number, a “Positive Adjustment Amount”), then Aspen Sellers shall pay to the Reinsurer (or Buyer an amount equal to the applicable Trust AccountsPost-Closing Adjustment in accordance with Section 2.04(c)(vi); provided, to that there will be no negative adjustment for Closing Working Capital unless the extent that the Reinsurer’s Posted Collateral is less than the Initial Required Collateral Amount)Closing Working Capital, by wire transfer of immediately available funds to one or more accounts designated in writing by the Reinsurer, the Positive Adjustment Amount within five (5) Business Days following final determination of the New Reinsurance Premium as finally determined pursuant to this Section 3.3 or (ii) 2.04 is less than the Estimated New Reinsurance Premium an amount equal to ninety-five percent (the absolute value 95%) of such difference, a “Negative Adjustment Amount”), then Aspen shall reduce the Funds Withheld Account Balance by the Negative Adjustment AmountTarget Working Capital.
Appears in 1 contract
Sources: Securities Purchase Agreement (Orion Group Holdings Inc)
Post-Closing Adjustment. (ai) No earlier than 30 days and no later than forty-five (45) 60 days following the Closing Date, Aspen shall the Parent will deliver to the Reinsurer a detailed statement in Holder Representative an unaudited consolidated balance sheet of the same form Partnership at and as of 11:59 P.M. on the day immediately preceding the Closing Statement Date (the “Final Closing Balance Sheet”) and a statement (the “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 amount 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 StatementCash, the Reinsurer final amount of Closing Indebtedness and its authorized Representatives Transaction Expenses and any Closing Working Capital Surplus, and Closing Working Capital Deficiency. The Closing Balance Sheet and the Closing Statement will be given reasonable access to all accounting, actuarial prepared by the Parent in accordance with GAAP and other data this Agreement applied on a basis consistent with past practice and documentation related to the principles used in preparation of the Final Closing Statement for the purpose of, and Latest Balance Sheet (without giving effect 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”transactions contemplated herein), the items and amounts in dispute shall be submitted for review to the Independent Actuary for final determination within forty-five (45) days after such submission. The Independent Actuary shall decide all matters relating to the procedures to be followed for resolution of the dispute, including those relating to the submission and receipt of information and documents; provided, however, that at any estimated accrued expenses reflected on the request Estimated Closing Balance Sheet will be updated to account for actual payments made or invoices received in respect of either Aspen or such accrued expenses. After receipt of the Reinsurer, a meeting shall be held at which the Parties may present their views, that both Aspen Closing Balance Sheet and the Reinsurer Closing Statement, the Holder Representative shall have equal 15 days (the “Review Period”) to review the Closing Balance Sheet and the Closing Statement. During the Review Period, the Holder Representative and its Representatives, including the Holder Representative’s independent accountants, will be entitled to review all work papers of the Parent and its Representatives, including its independent accountants, prepared or reviewed in connection with the delivery of the Closing Balance Sheet and the Closing Statement, as well as access to the Independent Actuary, books and that all information records and documents which either Party delivers personnel of the Partnership as the Holder Representative may reasonably request for the purpose of reviewing the Closing Balance Sheet and the Closing Statement.
(ii) On or makes available prior to the Independent Actuary shall be furnished last day of the Review Period, the Holder Representative may object to the other Party as wellClosing Balance Sheet and the Closing Statement by delivering to Parent a written statement setting forth the Holder Representative’s objections in reasonable detail, indicating each disputed item or amount and the basis for Holder Representative’s disagreement therewith (the “Statement of Objections”). The review by If the Independent Actuary shall be limited solely Holder Representative fails to deliver the Statement of Objections prior to the disputed items (and any items affected thereby) and amounts in expiration of the True-Up Dispute Notice that remain unresolved. Any determination by Review Period, the Independent Actuary shall not be outside Closing Balance Sheet, the range defined by the respective amounts in the Final Closing Statement and the TruePost-Up Dispute NoticeClosing Adjustment Amount shall be deemed to have been accepted by the Holder Representative. If the Holder Representative delivers the Statement of Objections prior to the expiration of the Review Period, the Parent and the Holder Representative shall negotiate in good faith to resolve such determination objections within 30 days after the delivery of the Statement of Objections (the “Resolution Period”), and, if the same are so resolved within the Resolution Period, the Closing Balance Sheet, the Closing Statement and the Post-Closing Adjustment Amount with such changes as may have been previously agreed in writing by the Partnership and the Parent, shall be final and binding uponbinding.
(iii) If the Parent and the Holder Representative fail to reach an agreement with respect to all of the matters set forth in the Statement of Objections before expiration of the Resolution Period, then any amounts remaining in dispute (the “Disputed Amounts” and any amounts not so disputed, the “Undisputed Amounts”) shall be submitted for resolution to the office of PricewaterhouseCoopers (the “Independent Accountants”) who, acting as experts and not arbitrators, shall resolve the Disputed Amounts only and adjust the Closing Balance Sheet, the Closing Statement and the Post-Closing Adjustment Amount accordingly, if necessary. The Independent Accountants shall only decide the specific items under dispute by the parties. The Independent Accountants shall make a determination as soon as practicable within 30 days (or such other time period as the parties hereto shall agree in writing) after their engagement, and non-appealable bytheir resolution of the Disputed Amounts and any adjustments to the Closing Balance Sheet, the Parties Closing Statement and their respective successors the Post-Closing Adjustment Amount shall be conclusive and assigns for all purposes of this Agreement, and not subject to collateral attack for any reason absent manifest error or fraudbinding upon the parties hereto. The fees and expenses of the Independent Actuary arising from such arbitration Accountants shall be paid by the Parties pro rata Holders, on the one hand, and by Parent, on the other hand, based on where upon the Independent Actuary’s determination percentage of the New Reinsurance Premium falls in comparison Disputed Amounts contested but not awarded to the amount claimed by ▇▇▇▇▇ in the Final Closing Statement and the amount claimed by the Reinsurer in the True-Up Dispute NoticeHolders or Parent, respectively.
(d) If the New Reinsurance Premium as finally determined pursuant to this Section 3.3 is (i) greater than the Estimated New Reinsurance Premium (such difference, a “Positive Adjustment Amount”), then Aspen shall pay to the Reinsurer (or to the applicable Trust Accounts, to the extent that the Reinsurer’s Posted Collateral is less than the Initial Required Collateral Amount), by wire transfer of immediately available funds to one or more accounts designated in writing by the Reinsurer, the Positive Adjustment Amount within five (5) Business Days following final determination of the New Reinsurance Premium pursuant to this Section 3.3 or (ii) less than the Estimated New Reinsurance Premium (the absolute value of such difference, a “Negative Adjustment Amount”), then Aspen shall reduce the Funds Withheld Account Balance by the Negative Adjustment Amount.
Appears in 1 contract
Post-Closing Adjustment. (a) No later than forty-five (45) Within 60 days following after the Closing Date, Aspen shall the Purchaser will prepare and deliver to the Reinsurer a detailed statement in Seller Representative an unaudited consolidated balance sheet of the same form Company as of the close of business on the day immediately prior to the Closing Statement Date (the “Final Closing Balance Sheet”) and a written statement (together with the Closing Balance Sheet, the “Closing Statement”) setting forth Aspenthe Purchaser’s good faith calculation calculations (the “Purchaser’s Proposed Calculations”) of the Purchase Price (the “Final Purchase Price”), which shall set forth, in reasonable detail its calculations of: (i) the New Reinsurance Premium (including the New Reinsurance Premium Accrued Interest, the Roll-forward Amount Closing Net Working Capital and the ULAE Reimbursement Amountamount (if any) by which Closing Net Working Capital exceeds the Target Closing Net Working Capital and the amount (if any) by which the Target Closing Net Working Capital exceeds Closing Net Working Capital; (ii) the Initial Required Collateral AmountClosing Indebtedness, in each case, as of (iii) the Closing DateCash and (iv) any unpaid Transaction Expenses. The Closing Balance Sheet and the Purchaser’s Proposed Calculations will be prepared in accordance with the Accounting Principles, together with all accounting, actuarial and without giving effect to any purchase accounting adjustments or other data and documentation reasonably necessary for changes arising from the Reinsurer to review ▇▇▇▇▇’s proposed final calculations of such amountstransactions contemplated by this Agreement.
(b) Upon receipt If the Seller Representative has any objections to the Closing Statement and the calculation of the Final Purchase Price, the Seller Representative must deliver to the Purchaser a written statement (an “Objections Statement”) setting forth a description in reasonable detail of its objections thereto, including the basis for the objection, proposed adjustment amount and supporting calculations. If an Objections Statement is not delivered to the Purchaser within 30 days after delivery of the Closing Statement, the Reinsurer Closing Statement and its authorized Representatives the Purchaser’s calculation of the Purchase Price will be given reasonable access to all accountingfinal, actuarial binding 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 fortynon-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 appealable by the Reinsurer as final, except to the extent that such amounts are affected by any disputed amountsparties hereto.
(c) If Aspen the Seller Representative timely delivers an Objections Statement to the Purchaser, then the Purchaser and the Reinsurer Seller Representative will negotiate in good faith to resolve any objections set forth in the Objections Statement, but if they are unable to resolve all disagreements with respect disputed items by the end of 30 days after the date of delivery of the Objections Statement, then the remaining items in dispute will be submitted to Deloitte & Touche for resolution acting as an accounting expert and not as an arbitrator, or if that firm is unwilling or unable to serve, the Final Closing Statement within thirty Purchaser and the Seller Representative will engage another mutually agreeable independent accounting firm of recognized national standing, which firm is not the regular auditing firm of the Purchaser or the Company (30) days following ▇▇▇▇▇’s receipt of a True-Up Dispute Notice (such selected independent accounting firm, the “True-up Dispute Cooling-Off PeriodIndependent Accounting Firm”), . The Purchaser and the Seller Representative will use their commercially reasonable efforts to cause the Independent Accounting Firm to resolve all disagreements as soon as practicable and in any event within 30 days after the date of appointment. The Independent Accounting Firm may address only those items and amounts which are identified in dispute the Objections Statement as being items which the Seller Representative and the Purchaser are unable to resolve, and the Independent Accounting Firm’s determination shall be submitted for review to within the Independent Actuary for final determination within forty-five (45) days after such submissionrange proposed by the Purchaser and the Seller Representative. The Independent Actuary shall decide all matters relating to the procedures to be followed for resolution of the dispute, including those relating to the submission and receipt of information and documents; provided, however, that at the request of either Aspen or the Reinsurer, a meeting shall be held at which the Parties may present their views, that both Aspen and the Reinsurer shall have equal access to the Independent Actuary, and that all information and documents which either Party delivers or makes available to the Independent Actuary shall be furnished to the other Party as well. The review dispute by the Independent Actuary shall Accounting Firm will be limited solely to the disputed items (and any items affected thereby) and amounts in the True-Up Dispute Notice that remain unresolved. Any determination by the Independent Actuary shall not be outside the range defined by the respective amounts in the Final Closing Statement and the True-Up Dispute Noticefinal, and such determination shall be final and binding upon, and non-appealable by, on the Parties and their respective successors and assigns for all purposes of this Agreement, and not subject to collateral attack for any reason absent manifest error or fraudparties. The fees and expenses of the Independent Actuary arising from such arbitration shall Accounting Firm will be paid by allocated between the Parties Purchaser, on the one hand, and the Sellers, on the other hand, pro rata based on where the Independent Actuary’s determination their respective share of the New Reinsurance Premium falls in comparison Purchase Price, based upon the percentage which the portion of the contested amount not awarded to each party bears to the amount claimed actually contested by ▇▇▇▇▇ in the Final Closing Statement and the amount claimed such party, as determined by the Reinsurer Independent Accounting Firm, and each party shall bear its own expenses in the True-Up Dispute Noticeconnection therewith, including its attorneys’ and accountants’ fees.
(d) For purposes of complying with this Section 2.3, and subject to executing customary access letters, the Purchaser and the Seller Representative will furnish to each other and to the Independent Accounting Firm such work papers and other documents and information relating to the disputed items as the Independent Accounting Firm may reasonably request and are available to that party (or its independent public accountants) and will be afforded the opportunity to present to the Independent Accounting Firm any written material related to the disputed items. The party providing any such work papers, other documents or information to the Independent Accounting Firm shall also provide such papers, documents and information to the other party.
(e) Upon the determination, in accordance with Section 2.3(b) or Section 2.3(c), as applicable, of the Closing Statement and the final calculations of the amounts of the Closing Cash, the Closing Indebtedness, the Closing Net Working Capital and the Net Working Capital Adjustment calculated by reference thereto, and any unpaid Transaction Expenses, the Purchase Price will be recalculated using such finally determined amounts in lieu of the estimates of such amounts used in the calculation of the estimated Purchase Price payable at Closing as set forth on the Estimated Purchase Price Calculation Statement as follows:
(i) If the New Reinsurance Premium Final Purchase Price as finally determined calculated pursuant to this Section 3.3 2.3(e) is (i) greater than the Estimated New Reinsurance Premium (such difference, a “Positive Adjustment Amount”)Purchase Price, then Aspen shall the Purchaser will pay to the Reinsurer Sellers an amount in immediately available funds equal to any such excess; and
(or ii) If the Final Purchase Price as calculated pursuant to the applicable Trust Accounts, to the extent that the Reinsurer’s Posted Collateral this Section 2.3(e) is less than the Initial Required Collateral AmountEstimated Purchase Price, then the Sellers will pay to the Purchaser an amount in immediately available funds equal to any such deficiency.
(f) The Sellers will be severally but not jointly liable for any amount for which payment is required by the Sellers under Section 2.3(e), which payment will be effected, first, by paying all or part of the Adjustment Escrow Amount from the Escrow Account to an account designated by the Purchaser, and any remaining amounts by wire transfer of immediately available funds from the Sellers to an account designated by the Purchaser. Any payment by the Purchaser to the Sellers pursuant to Section 2.3(e) will be effected by wire transfer of immediately available funds to one such account or more accounts designated in writing by the Reinsurer, the Positive Adjustment Amount Seller Representative. Such payments will be made within five (5) Business Days following the final determination referred to in Section 2.3(e).
(g) The purpose of this Section 2.3 is to determine the New Reinsurance Premium Final Purchase Price to be paid by the Purchaser under this Agreement. Accordingly, any adjustment pursuant hereto will neither be deemed to be an indemnification pursuant to ARTICLE 10, nor preclude the Purchaser from exercising any indemnification rights pursuant to ARTICLE 10. Any payment made pursuant to this Section 3.3 or (ii) less than the Estimated New Reinsurance Premium (the absolute value of such difference, a “Negative Adjustment Amount”), then Aspen shall reduce the Funds Withheld Account Balance 2.3 will be treated by the Negative Adjustment Amountparties for all purposes as an adjustment to the Purchase Price.
Appears in 1 contract
Sources: Membership Interest Purchase Agreement (Ritchie Bros Auctioneers Inc)
Post-Closing Adjustment. (a) No later than forty-five As promptly as practicable after the Divestiture Date and in any event within 45 days thereafter, Knewco shall prepare (45with Sensormatic's cooperation, as appropriate) days following its final balance sheet at the Closing DateDivestiture Date (the "Divestiture Date Balance Sheet"). The Divestiture Date Balance Sheet, Aspen which shall deliver be prepared in accordance with GAAP and the Allocation Principles, and consistent with the Estimated Balance Sheet, shall reflect, among other things, the net worth of Knewco at the Divestiture Date after giving effect to the Reinsurer Contribution (but without giving effect to any write-downs described in Section 1.5). If Sensormatic and Knewco are in agreement as to the net worth of Knewco, as reflected on the Divestiture Date Balance Sheet, such net worth shall have been finally determined in accordance with this Section 7.6 and, accordingly, either Sensormatic or Knewco shall promptly pay to the other the cash payment, if any, required pursuant to Section 7.6(e). If Sensormatic and Knewco are not in agreement on such net worth, they shall promptly thereafter jointly instruct Deloitte & Touche ("Deloitte") to conduct an audit or, if agreed to by the parties, a detailed statement review of the Divestiture Date Balance Sheet (the "Examination"). The purpose of the Examination shall be to determine the net worth of Knewco at the Divestiture Date after giving effect to the Contribution and the amount of any adjustment in the same form as the Closing Statement (the “Final Closing Statement”) setting forth Aspen’s good faith calculation amount 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 cash or cash equivalents contributed to review ▇▇▇▇▇’s proposed final calculations of such amountsKnewco pursuant to this Section 7.6.
(b) Upon Sensormatic and Knewco shall jointly instruct Deloitte to complete the Examination within 30 days after the receipt of the Final Closing StatementDivestiture Date Balance Sheet as prepared by Knewco and to render its report thereon (the "Report") to Knewco and Sensormatic within such period. The Report shall include, among other things, Deloitte's calculation of the Reinsurer net worth of Knewco as reflected on the Divestiture Date Balance Sheet. Sensormatic and Knewco shall jointly instruct Deloitte to make its work papers with respect to the Examination and the Report available to Knewco 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, advisers and to the extent reasonably necessary forSensormatic, 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 Ernst & Young 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 amountsSensormatic's other advisers.
(c) The content and conclusions of the Report shall be conclusive and binding on Sensormatic and Knewco unless either one notifies the other and Deloitte that it disputes the Report within 30 days after Deloitte's delivery of the Report to it. If Aspen and either Sensormatic or Knewco timely disputes the Reinsurer are unable Report, they shall promptly attempt to resolve all disagreements any differences between them with respect to the Final Closing Statement Report. If they are unable to do so within thirty (30) 30 days following ▇▇▇▇▇’s receipt after the date of a True-Up Dispute Notice the notice of dispute, either Sensormatic or Knewco or both of them jointly may submit the dispute to Price Waterhouse or, if they are unable or unwilling to act, such other "Big Six" public accounting firm as may be selected by the American Arbitration Association (the “True-up Dispute Cooling-Off Period”"Second Auditor"), the items and amounts in dispute shall be submitted for review to the Independent Actuary for final determination within forty-five (45) days after such submission. The Independent Actuary shall decide all matters relating to the procedures to be followed for resolution of the dispute, including those relating to the submission and receipt of information and documents; provided, however, that at the request of either Aspen or the Reinsurer, a meeting shall be held at which the Parties may present their views, that both Aspen and the Reinsurer shall have equal access to the Independent Actuary, and that all information and documents which either Party delivers or makes available to the Independent Actuary shall be furnished to the other Party as well. The review by the Independent Actuary shall be limited solely to the disputed items (and any items affected thereby) and amounts in the True-Up Dispute Notice that remain unresolved. Any determination by the Independent Actuary shall not be outside the range defined by the respective amounts in the Final Closing Statement and the True-Up Dispute Notice, and such determination shall be final and binding upon, and non-appealable by, the Parties and their respective successors and assigns for all purposes of this Agreement, and not subject to collateral attack for any reason absent manifest error or fraud. The fees and expenses of the Independent Actuary arising from such arbitration shall be paid by the Parties pro rata based on where the Independent Actuary’s determination of the New Reinsurance Premium falls in comparison to the amount claimed by ▇▇▇▇▇ in the Final Closing Statement and the amount claimed by the Reinsurer in the True-Up Dispute Notice.
(d) If the New Reinsurance Premium as finally determined pursuant to this Section 3.3 is (i) greater than the Estimated New Reinsurance Premium (such difference, a “Positive Adjustment Amount”), then Aspen shall pay to the Reinsurer (or to the applicable Trust Accounts, to the extent that the Reinsurer’s Posted Collateral is less than the Initial Required Collateral Amount), by wire transfer of immediately available funds to one or more accounts designated in writing by the Reinsurer, the Positive Adjustment Amount within five (5) Business Days following final determination of the New Reinsurance Premium pursuant to this Section 3.3 or (ii) less than the Estimated New Reinsurance Premium (the absolute value of such difference, a “Negative Adjustment Amount”), then Aspen shall reduce the Funds Withheld Account Balance by the Negative Adjustment Amount.
Appears in 1 contract
Sources: Contribution and Divestiture Agreement (Sentry Technology Corp)
Post-Closing Adjustment. (a) No later than forty-five Within ninety (4590) days following after the Closing Date, Aspen Parent shall prepare and deliver to the Reinsurer Securityholder Representative a detailed statement in the same form as the Closing Statement (the “Final Post-Closing Statement”) setting forth Aspen’s its good faith calculation of Closing Indebtedness (ithe “Proposed Final Closing Indebtedness”), Closing Cash (the “Proposed Final Closing Cash”), Unpaid Transaction Expenses (the “Proposed Final Unpaid Transaction Expenses”), Unpaid Pre-Closing Taxes that are then known and determinable (the “Proposed Final Unpaid Pre-Closing Taxes”), Closing Net Working Capital Adjustment (the “Proposed Final Closing Net Working Capital Adjustment”) and the Aggregate Exercise Price (the “Proposed Final Aggregate Exercise Price”, and together with the Proposed Final Closing Indebtedness, Proposed Final Closing Cash, Proposed Final Unpaid Transaction Expenses, Proposed Final Unpaid Pre-Closing Taxes and the Proposed Final Closing Net Working Capital Adjustment, the “Proposed Final Closing Statement Information”). Each of the foregoing calculations will be accompanied by reasonable supporting detail therefor. During the period commencing on the date the Post-Closing Statement is delivered to the Securityholder Representative and ending thirty (30) days thereafter (the “Review Period”), Parent will, subject to COVID-19 Access Restrictions, provide the Securityholder Representative with reasonable access during normal business hours with at least forty-eight (48) hours prior written notice to any working papers, documents, and data from Parent and/or the Company that were used to prepare the Post-Closing Statement. If Parent fails to deliver the Post-Closing Statement on or prior to the date that is ninety (90) days after the Closing Date, then the amounts set forth on the Closing Statement will be final, binding, non-appealable, and conclusive on the parties for purposes of this Section 1.16.
(b) During the Review Period, the Securityholder Representative may provide written notice to Parent disputing all or any part of the Proposed Final Closing Indebtedness, the Proposed Final Closing Cash, the Proposed Final Unpaid Transaction Expenses, the Proposed Final Unpaid Pre-Closing Taxes, the Proposed Final Closing Net Working Capital Adjustment or the Proposed Final Aggregate Exercise Price, specifying in reasonable detail those items that the Securityholder Representative disputes (the proposed adjustment(s) or disputed item(s) to which the Securityholder Representative objects are referred to herein as the “Disputed Amounts” and the Securityholder Representative’s objection notice is referred to herein as the “Objection Notice”). If the Securityholder Representative does not provide an Objection Notice with respect to any such amounts prior to the expiration of the Review Period, any such amounts not so objected to will be final, binding, non-appealable, and conclusive on the parties for purposes of this Section 1.16.
(c) If the Securityholder Representative delivers an Objection Notice to Parent prior to the expiration of the Review Period, then the Securityholder Representative and Parent will negotiate in good faith to resolve the Disputed Amounts during the twenty (20) day period immediately following Parent’s receipt of the Objection Notice (or such longer period as may be agreed to in writing by Parent and the Securityholder Representative) (the “Negotiation Period”). If, during the Negotiation Period, the Securityholder Representative and Parent are able to resolve any Disputed Amounts, then such agreed upon amounts will become final, binding, non-appealable, and conclusive on the parties for purposes of this Section 1.16.
(d) If a final resolution is not obtained within the Negotiation Period, Parent and the Securityholder Representative may elect to retain for the benefit of all the parties a mutually agreeable accounting firm from the list set forth on Schedule 1.16(d), or if no such firm is able to serve, a mutually agreeable nationally recognized accounting firm (the “Independent Accountant”) to resolve any remaining Disputed Amounts (the “Remaining Disputed Amounts”). If the Independent Accountant is retained, then (A) Parent and the Securityholder Representative will each submit to the Independent Accountant in writing, not later than fifteen (15) days after the Independent Accountant is retained, their respective positions with respect to the Remaining Disputed Amounts, together with such supporting documentation as they deem necessary or as the Independent Accountant requests, and (B) the New Reinsurance Premium Independent Accountant will, within thirty (including 30) days after receiving the New Reinsurance Premium Accrued Interestpositions of both the Securityholder Representative and Parent and all supplementary supporting documentation reasonably requested by the Independent Accountant (or such longer period as may be reasonably requested by the Independent Accountant, not to exceed ten (10) Business Days), render its decision as to the Remaining Disputed Amounts in a written report, which decision will be final, binding, nonappealable, and conclusive on the parties for purposes of this Section 1.16. Neither Parent nor the Securityholder Representative will have or conduct any communication, either written or oral, with the Independent Accountant without the other party either being present (or having waived or declined its right to be present) or receiving a concurrent copy of any written communication. Parent and the Securityholder Representative, and their respective representatives, will provide reasonable cooperation to the Independent Accountant during its engagement and respond on a timely basis to all reasonable requests for information or, subject to COVID-19 Access Restrictions, access to documents or personnel made by the Independent Accountant, all with the intent to fairly and in good faith resolve all Remaining Disputed Amounts as promptly as reasonably practicable. The parties will be entitled to have a judgment entered on such written report in any court of competent jurisdiction. In resolving any Remaining Disputed Amounts, the Roll-forward Amount and Independent Accountant (x) may not assign a value to any particular item greater than the ULAE Reimbursement Amount) and (ii) greatest value for such item claimed by either Parent or the Initial Required Collateral AmountSecurityholder Representative, or less than the lowest value for such item claimed by either Parent or the Securityholder Representative, 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 presented to the Independent Actuary for final determination within forty-five Accountant, (45y) days after such submission. The Independent Actuary shall decide all matters relating to the procedures to be followed for resolution of the dispute, including those relating to the submission will act as an expert and receipt of information and documents; provided, however, that at the request of either Aspen or the Reinsurer, a meeting shall be held at which the Parties may present their views, that both Aspen and the Reinsurer shall have equal access to the Independent Actuarynot as an arbitrator, and that all information and documents which either Party delivers or makes available (z) will limit its review to the Independent Actuary shall be furnished to the other Party as well. The review by the Independent Actuary shall be limited solely to the disputed items (and any items affected thereby) and amounts matters specifically set forth in the True-Up Dispute Notice that remain unresolved. Any determination by the Independent Actuary shall not be outside the range defined by the respective amounts in the Final Closing Statement and the True-Up Dispute Objection Notice, and such determination shall be final and binding upon, and non-appealable by, the Parties and their respective successors and assigns for all purposes of this Agreement, and not subject to collateral attack for any reason absent manifest error or fraud. The fees and expenses of the Independent Actuary arising from such arbitration shall Accountant will be paid by allocated between Parent, on the Parties pro rata based one hand, and the Securityholder Representative (on where the Independent Actuary’s determination behalf of the New Reinsurance Premium falls in comparison Indemnifying Parties), on the other hand, based upon the percentage that the portion of the contested amount not awarded to a particular party bears to the amount claimed actually contested by ▇▇▇▇▇ in the Final Closing Statement and the amount claimed by the Reinsurer in the True-Up Dispute Noticesuch party.
(de) If The amounts of the New Reinsurance Premium Closing Indebtedness, the Closing Cash, the Unpaid Transaction Expenses, the Unpaid Pre-Closing Taxes, the Closing Net Working Capital Adjustment and the Aggregate Exercise Price, as finally determined pursuant to in accordance with this Section 3.3 is (i) greater than 1.16, will be the Estimated New Reinsurance Premium (such difference, a “Positive Adjustment AmountAdjusted Closing Indebtedness,” the “Adjusted Closing Cash,” the “Adjusted Unpaid Transaction Expenses,” the “Adjusted Unpaid Pre-Closing Taxes”), then Aspen shall pay to the Reinsurer (or to the applicable Trust Accounts, to the extent that the Reinsurer’s Posted Collateral is less than the Initial Required Collateral Amount), by wire transfer of immediately available funds to one or more accounts designated in writing by the Reinsurer, the Positive Adjustment Amount within five “Adjusted Closing Net Working Capital Adjustment” and the “Adjusted Aggregate Exercise Price,” respectively.
(5f) Business Days following final determination For purposes of the New Reinsurance Premium pursuant to this Section 3.3 or (ii) less than the Estimated New Reinsurance Premium (the absolute value of such difference, a “Negative Adjustment Amount”), then Aspen shall reduce the Funds Withheld Account Balance by the Negative Adjustment Amount.Agreement:
Appears in 1 contract
Sources: Merger Agreement (Ambarella Inc)
Post-Closing Adjustment. (a) No later than forty-five The Base Merger Consideration shall be subject to adjustment as specified in this Section 3.1.
(45b) Within ninety (90) days following the Effective Time, CCC shall cause CCC's Accountant to audit (the "Post-Closing Date, Aspen shall deliver Audit") the books of the ------------------ Company to determine the accuracy of the information relating to the Reinsurer a detailed statement Company's Closing Net Worth and the Company's 1997 Adjusted EBIT as set forth on the Financial Certificates (as defined in Section 7.20) and on the financial certificates of the Other Group Companies. In determining the accuracy of such information reflected on the Financial Certificates in the course of the Post- Closing Audit, CCC's Accountant shall apply the same form accounting methodology used by the Company or the Stockholders, as applicable, in preparing such information; provided that CCC's Accountant shall not be obligated to apply such methodology to the extent inconsistent with GAAP (as modified by Section 2.2(b) above). The Stockholders shall cooperate with CCC and CCC's Accountant after the Closing Statement (Date in furnishing information, documents, evidence and other assistance to CCC's Accountant to facilitate the “Final completion of the Post-Closing Statement”) setting forth Aspen’s good faith calculation Audit within the aforementioned time period. Without limiting the generality of the foregoing, within two weeks after the Closing, the Stockholders shall provide CCC's Accountant with the information and/or documents reasonably requested by them. CCC's Accountant will test the Company's Closing Net Worth, the Group Closing Net Worth, the Company's 1997 Adjusted EBIT and the Group 1997 Adjusted EBIT based upon the Post-Closing Audit and the post-closing audits of the Other Group Companies. In the event that CCC's Accountant determines (i) a different amount than the New Reinsurance Premium Group Closing Net Worth (the "Actual Closing Net Worth") or (ii) ------------------ a different amount than the Group 1997 Adjusted EBIT (the "Actual 1997 Adjusted -------------------- EBIT" ), CCC shall promptly deliver a written notice with ---- supporting documentation (the "Financial Adjustment Notice") to the stockholders --------------------------- of the Group Companies, including the New Reinsurance Premium Accrued InterestStockholders, setting forth (A) the Roll-forward Amount determination made by CCC's Accountant of the Actual Closing Net Worth and the ULAE Reimbursement AmountActual 1997 Adjusted EBIT, (B) the amount of the cash portion of the Base Merger Consideration that would have been payable at Closing pursuant to Section 2.2(c) had the Actual Closing Net Worth and the Actual 1997 Adjusted EBIT been used instead of the Group Closing Net Worth and the Group 1997 Adjusted EBIT to determine the need for any adjustments to the Base Merger Consideration pursuant to Sections 2.2(c) and 2.2(d), respectively, and (C) the number of shares issued as part of the Base Merger Consideration that would have been issuable at Closing had the Actual Closing Net Worth and the Actual Adjusted EBIT been used to determine the need for any adjustments to the Base Merger Consideration as set forth in (B) above. The differences between the respective amounts set forth in (B) and (C) and the amounts of the cash and the CCC Common Stock components of the Base Merger Consideration paid pursuant to Section 2.2 (a), as adjusted pursuant to Sections 2.2(c) or 2.2(d), is referred to hereafter as the "Merger Consideration Adjustment." Any increase in the Base Merger ------------------------------- Consideration resulting from such Merger Consideration Adjustment shall be owed by CCC to the Stockholders. Any decrease in such Base Merger Consideration resulting from such Merger Consideration Adjustment shall be owed by the Stockholders to CCC. If, on or prior to the payment of the Merger Consideration Adjustment, CCC should split or combine the CCC Common Stock, or pay a stock dividend or other stock distribution in CCC Common Stock, or otherwise change the CCC Common Stock into any other securities, or make any other dividend or distribution on the CCC Common Stock (other than normal quarterly dividends, as the same may be adjusted from time to time and in the ordinary course), then the number of shares of CCC Common Stock issuable as part of the Merger Consideration Adjustment will be appropriately adjusted to reflect such split, combination, dividend or other distribution or change. The shares of CCC Common Stock, if any, to be issued in respect of the Merger Consideration Adjustment shall be registered under the 1933 Act and approved for quotation on the Nasdaq National Market.
(c) The stockholders of the Group Companies, including the Stockholders, through the Group Representative, shall have thirty (30) days from the receipt of the Financial Adjustment Notice to notify CCC if they dispute such Financial Adjustment Notice. If CCC has not received notice of any such dispute within such 30-day period, (i) CCC shall be entitled to receive promptly pro rata from the Stockholders (which may, at CCC's sole discretion, be from the Pledged Assets as defined in, and subject to the provisions of, Section 3.2 and/or the Contingent Merger Consideration) any Merger Consideration Adjustment owed to CCC 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 Stockholders shall be entitled 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 receive promptly from CCC any Merger Consideration Adjustment owed 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 applicableStockholders. 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 such submission. The Independent Actuary shall decide all matters relating to the procedures to be followed for resolution of the dispute, including those relating to the submission and receipt of information and documents; providedIf, however, that at the request Stockholders (through the Group Representative) have delivered notice of either Aspen or such a dispute to CCC within such 30-day period, then CCC's Accountant shall select a New Accounting Firm to review the Reinsurerbooks of the Group Companies including, a meeting shall be held at which the Parties may present their viewsSurviving Corporation, that both Aspen the Financial Certificates and the Reinsurer shall have equal access to the Independent Actuary, and that all information and documents which either Party delivers or makes available to the Independent Actuary shall be furnished to the other Party as well. The review by the Independent Actuary shall be limited solely to the disputed items Financial Adjustment Notice (and any items affected therebyrelated information) and amounts in to determine the True-Up Dispute Notice that remain unresolved. Any determination by the Independent Actuary shall not be outside the range defined by the respective amounts in the Final Closing Statement and the True-Up Dispute Noticeamount, and such determination shall be final and binding uponif any, and non-appealable by, the Parties and their respective successors and assigns for all purposes of this Agreement, and not subject to collateral attack for any reason absent manifest error or fraud. The fees and expenses of the Independent Actuary arising from such arbitration shall be paid by the Parties pro rata based on where the Independent Actuary’s determination of the New Reinsurance Premium falls in comparison to the amount claimed by ▇▇▇▇▇ in the Final Closing Statement and the amount claimed by the Reinsurer in the True-Up Dispute Notice.
(d) If the New Reinsurance Premium as finally determined pursuant to this Section 3.3 is (i) greater than the Estimated New Reinsurance Premium (such difference, a “Positive revised Merger Consideration Adjustment Amount”), then Aspen shall pay to the Reinsurer (or to the applicable Trust Accounts, to the extent that the Reinsurer’s Posted Collateral is less than the Initial Required Collateral Amount), by wire transfer of immediately available funds to one or more accounts designated in writing by the Reinsurer, the Positive Adjustment Amount within five (5) Business Days following final determination of the New Reinsurance Premium pursuant to this Section 3.3 or (ii) less than the Estimated New Reinsurance Premium (the absolute value of such difference, a “Negative Adjustment Amount”), then Aspen shall reduce the Funds Withheld Account Balance by the Negative Adjustment Amount."Actual Merger ------------- Consideration Adjustment"
Appears in 1 contract
Sources: Agreement and Plan of Reorganization (Consolidation Capital Corp)
Post-Closing Adjustment. (a) No later than forty-five (45) 120 days following after the Closing DateDate (or such later date as mutually agreed by Buyer and Seller), Aspen Buyer shall prepare and deliver to Seller (i) a balance sheet of the Reinsurer Company as of the Measurement Time (together with supporting documentation reasonably necessary for Seller to verify such balance sheet, the “Final Balance Sheet”), (ii) worksheets showing Buyer’s calculation of the: (A) Indebtedness of the Company as of the Measurement Time, plus the amount of any premiums, penalties, fees, make-whole payments or other charges incurred as a detailed statement result of the payment thereof on the Closing Date as reflected in the same form applicable Payoff Letter (collectively, “Final Indebtedness”), (B) the amount of all Transaction Expenses unpaid as of the Closing Statement Measurement Time (“Final Transaction Expenses”), (C) Net Working Capital derived from the Final Balance Sheet (based upon, and subject to the adjustments set forth in, the definitions of Current Assets and Current Liabilities) (the “Final Closing StatementNet Working Capital”) setting forth Aspen’s good faith calculation of ), (iD) the New Reinsurance Premium amount of all Incremental Equity Capital, if applicable (including the New Reinsurance Premium Accrued Interest“Final Incremental Equity Capital”), (E) the Roll-forward amount of all Gap Period Extraordinary Expenditures, if any (the “Final Gap Period Extraordinary Expenditures”), and (F) the Interim Tax Amount and (the ULAE Reimbursement “Final Interim Tax Amount”) and (iiiii) Buyer’s calculation of the Initial Required Collateral AmountFinal Closing Securities Payment, in each case, as together with a worksheet showing the difference, if any, between any Estimated Closing Item and the corresponding Final Closing Item. The Final Balance Sheet, Final Indebtedness, Final Transaction Expenses, the Final Net Working Capital, the Final Closing Securities Payment, the Final Incremental Equity Capital (if applicable), the Final Gap Period Extraordinary Expenditures (if any), and the Final Interim Tax Amount (together, the “Final Closing Items”) shall be prepared in good faith and on a basis consistent with the Audited Financial Statements. Seller and its representatives shall be entitled to reasonable access during normal business hours to all books and records of the Closing Date, together with all accounting, actuarial and other data and documentation Company as may be reasonably necessary requested by Seller for the Reinsurer purpose of this Section 2.4. Buyer and Seller shall promptly provide to review ▇▇▇▇▇’s proposed final calculations each other all documents reasonably requested by the other to verify any of such amounts.
(b) Upon the items set forth in the Final Closing Items calculations. Seller shall have the right for 30 days following receipt of the Final Closing Statement, the Reinsurer and its authorized Representatives will be given reasonable access Items to all accounting, actuarial and other data and documentation related object to the preparation any of the Final Closing Statement Items or the calculation thereof. Any objection made by Seller shall be made in writing and shall set forth such objection in reasonable detail. Seller shall be deemed to have waived any rights to object under this Section 2.4 unless Seller furnishes its written objections to Buyer within such 30-day period. If Seller delivers an objection within such 30-day period, then Buyer and Seller shall endeavor in good faith to resolve the objections. If, at the end of a 15-day period from the date of delivery of any objection by Seller or such longer period as may be mutually agreed by Buyer and Seller, there are any objections that remain in dispute, then the remaining objections in dispute shall be submitted for the purpose of, and resolution to the extent Oklahoma City, Oklahoma offices of the accounting firm of Ernst & Young (the “Closing Item Arbitrator”) and, in connection with the engagement for such submission, Seller and Buyer shall execute any engagement, indemnity and other agreements as the Closing Item Arbitrator may 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 require as a customary agreement relating condition to such access to work papers engagement in form and substance reasonably acceptable to such independent accountants or independent actuaries, as applicable. Within forty-five (45) days each of the Reinsurer’s receipt Seller and Buyer. The Closing Item Arbitrator shall determine the Final Closing Securities Payment as promptly as reasonably practicable after the objections that remain in dispute are submitted to the Closing Item Arbitrator, but in any event within 30 days after such objections that remain in dispute are submitted to the Closing Item Arbitrator. If any objections are submitted to the Closing Item Arbitrator for resolution, (i) each of Buyer and Seller shall furnish to the Closing Item Arbitrator such workpapers and other documents and information relating to such objections as the Closing Item Arbitrator may request and are reasonably available to that Party (or its independent public accountants) and will be afforded the opportunity to present to the Closing Item Arbitrator any material relating to the determination of the matters in dispute and to discuss such determination with the Closing Item Arbitrator, provided that neither Seller nor Buyer shall engage in any communication or correspondence with the Closing Item Arbitrator outside of the presence, or without the inclusion, of the other; (ii) the Closing Item Arbitrator must not adopt an amount of the Final Closing Statement, Securities Payment that is greater than the Reinsurer may deliver written notice amount submitted by Seller or less than the amount submitted by Buyer; and (iii) the “True-Up Dispute Notice”) to Aspen of any objections, specifying in reasonable detail any contested amounts and determination by 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 Item Arbitrator of the Final Closing Statement Securities Payment, as determined set forth in a written notice delivered to both Buyer and Seller by ▇▇▇▇▇. Any amounts not disputed in the True-Up Dispute Notice (if one is delivered) Closing Item Arbitrator, shall be deemed to made in accordance with this Agreement and the Sample Balance Sheet and shall be accepted by binding and conclusive on the Reinsurer as parties and, absent manifest error, shall constitute an arbitral award that is final, except to the extent that binding and unappealable and upon which a judgment may be entered by a court having jurisdiction thereof. Buyer and Seller shall each bear their own legal fees and other costs in connection with any 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 such submission. The Independent Actuary shall decide all matters relating to the procedures to be followed for resolution of the dispute, including those relating to the submission and receipt of information and documentsobjection; provided, however, that at the request of either Aspen or the ReinsurerBuyer, a meeting shall be held at which the Parties may present their views, that both Aspen and the Reinsurer shall have equal access to the Independent Actuaryon one hand, and that all information and documents which either Party delivers or makes available to the Independent Actuary shall be furnished to Seller, on the other Party as well. The review by hand, shall bear one-half of the Independent Actuary shall be limited solely to the disputed items (and any items affected thereby) and amounts in the True-Up Dispute Notice that remain unresolved. Any determination by the Independent Actuary shall not be outside the range defined by the respective amounts in the Final Closing Statement and the True-Up Dispute Notice, and such determination shall be final and binding upon, and non-appealable by, the Parties and their respective successors and assigns for all purposes of this Agreement, and not subject to collateral attack for any reason absent manifest error or fraud. The fees costs and expenses of the Independent Actuary arising from such arbitration Closing Item Arbitrator. Notwithstanding anything in this Agreement to the contrary, the Closing Item Arbitrator and procedures set forth herein shall be paid by the Parties pro rata based on where sole method for resolving any disputes regarding the Independent Actuary’s Final Closing Securities Payment or the provisions of this Section 2.4, provided that this Section 2.4 shall not affect the respective rights of Buyer or Seller under ARTICLE IX. Following the final determination of the New Reinsurance Premium falls in comparison to the amount claimed by ▇▇▇▇▇ in the Final Closing Statement and the amount claimed by the Reinsurer in the True-Up Dispute Notice.
(d) If the New Reinsurance Premium as finally determined Securities Payment pursuant to this Section 3.3 2.4, if the Final Closing Securities Payment is (i) greater than the Estimated New Reinsurance Premium (such difference, a “Positive Adjustment Amount”), Closing Securities Payment then Aspen Buyer shall pay to Seller the Reinsurer (or to amount of the applicable Trust Accounts, to the extent that the Reinsurer’s Posted Collateral is less than the Initial Required Collateral Amount), by wire transfer of immediately available funds to one or more accounts designated in writing by the Reinsurer, the Positive Final Adjustment Amount promptly (but in any event within five (5) Business Days following final of the determination of the New Reinsurance Premium pursuant to this Section 3.3 Final Closing Securities Payment) or (ii) less if the Closing Securities Payment is greater than the Estimated New Reinsurance Premium (the absolute value of such difference, a “Negative Adjustment Amount”)Final Closing Securities Payment, then Aspen Seller shall reduce pay to Buyer the Funds Withheld Account Balance by amount of the Negative Final Adjustment AmountAmount promptly (but in any event within five Business Days of the determination of the Final Closing Securities Payment).
Appears in 1 contract
Sources: Securities Purchase Agreement (EnLink Midstream Partners, LP)
Post-Closing Adjustment. (a) No later than forty-five (45) Promptly, but in any event within 60 days following after the Closing Date, Aspen the Buyer shall (X) prepare and deliver to the Reinsurer Seller a detailed statement in balance sheet of the same form as the Closing Statement Company (the “Final Closing StatementBalance Sheet”) setting forth Aspen(prepared in accordance with Exhibit A and the Accounting Principles, provided that in the event of a conflict between Exhibit A and the Accounting Principles, Exhibit A shall prevail), which will reflect in reasonable detail the Buyer’s good faith calculation determination of (i) the New Reinsurance Premium unpaid Company Transaction Expenses (including which shall be included as a liability of the New Reinsurance Premium Accrued InterestCompany on the Closing Balance Sheet)), the Roll-forward Amount and the ULAE Reimbursement Amount) and (ii) the Initial Required Collateral AmountWorking Capital Deficiency, if any, (iii) the Working Capital Surplus, if any, (iv) the Indebtedness of the Company, and (v) the Closing Cash, in each case, case as of immediately prior to the Closing, and (Y) deliver to the Seller the Closing DateBalance Sheet, together with all accountinga certificate of the Buyer executed on its behalf by its Chief Financial Officer confirming that the Closing Balance Sheet was properly prepared in good faith and in accordance with Exhibit A and the Accounting Principles, actuarial provided that in the event of a conflict between Exhibit A and other data the Accounting Principles, Exhibit A shall prevail. For the avoidance of doubt, the provisions of Exhibit A shall be interpreted so as to avoid double counting (whether positive or negative), of any item to be included in the Closing Balance Sheet, including Working Capital, Company Transaction Expenses, Closing Cash and documentation reasonably necessary for the Reinsurer to review ▇▇▇▇▇’s proposed final calculations of such amountsIndebtedness.
(b) Upon If the Seller in good faith disagrees with the Buyer’s determination of the Company Transaction Expenses, Working Capital Deficiency, Working Capital Surplus, Indebtedness and/or Closing Cash in each case as reflected on the Closing Balance Sheet, the Seller may, within 30 days after receipt of the Final Closing StatementBalance Sheet, 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 deliver 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 NoticeNotice of Disagreement”) to Aspen the Buyer setting forth each item 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 dispute (each an “Item 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 PeriodDispute”), the items reasonable basis for such dispute and amounts in dispute the Seller’s calculation of such Item of Dispute. If the Buyer does not receive a Notice of Disagreement within 30 days after delivery by the Buyer of the Closing Balance Sheet, the Closing Balance Sheet shall be submitted for review conclusive and binding upon each of the Parties. If the Buyer receives a Notice of Disagreement from the Seller within 30 days after delivery by the Buyer of the Closing Balance Sheet, the Buyer and the Seller shall attempt in good faith to resolve each Item of Dispute, and, if any Item of Dispute is so resolved, the Closing Balance Sheet shall be modified to the Independent Actuary for extent necessary to reflect such resolution. During the period between the Buyer’s delivery of the Closing Balance Sheet pursuant to Section 2.6(a) and the final determination within forty-five of the same pursuant to Section 2.6(b), the Buyer shall provide the Seller and its representatives with reasonable access to the books, records, personnel and representatives of the Company, and such other information related to the Company as the Seller or its representatives may reasonably request, so as to enable the Seller and its representatives to analyze the Closing Balance Sheet and the underlying calculations and documents related thereto. If any Item of Dispute remains unresolved as of the 30th day after timely delivery by the Seller of the Notice of Disagreement, the Buyer and the Seller shall jointly retain an impartial, nationally recognized firm of independent certified public accountants agreeable to both the Buyer and Seller (45the “Independent Accounting Firm”) to resolve such remaining disagreement, it being understood that any item not included as an Item of Dispute on the Notice of Disagreement shall be conclusive and binding upon each of the Parties as set forth on the Closing Balance Sheet. The Buyer and the Seller shall request that the Independent Accounting Firm render a determination as to each unresolved Item of Dispute as soon as practicable after its retention and in no event greater than 30 days after the engagement of the Independent Accounting Firm, and each of the Buyer, the Seller and each of their respective agents and representatives shall cooperate with the Independent Accounting Firm, and shall provide the Independent Accounting Firm with reasonable access to their respective books, records, personnel and representatives and such submissionother information as the Independent Accounting Firm may reasonably request, so as to enable it to make such determination as quickly and accurately as practicable. The Independent Actuary Accounting Firm shall decide all matters relating consider only those Items of Dispute and amounts related thereto that were set forth in the Closing Balance Sheet and the Notice of Disagreement and that remain unresolved by the Buyer and the Seller, and in resolving any Item of Dispute, the Independent Accounting Firm may not assign a value to any item greater than the procedures to be followed greatest value for resolution of such item claimed by either Party nor less than the dispute, including those relating to the submission and receipt of information and documents; provided, however, that at the request of smallest value for such item claimed by either Aspen or the Reinsurer, a meeting Party. The Independent Accounting Firm’s determination(s) shall be held at which based upon the Parties may present their viewsdefinitions of Company Transaction Expenses, that both Aspen Working Capital Deficiency, Working Capital Surplus, Indebtedness and Closing Cash (as applicable) included herein and in accordance with Exhibit A and the Reinsurer Accounting Principles (provided that in the event of a conflict between Exhibit A and the Accounting Principles, Exhibit A shall have equal access to the Independent Actuary, and that all information and documents which either Party delivers or makes available to the Independent Actuary shall be furnished to the other Party as wellprevail). The review by the Independent Actuary shall be limited solely to the disputed items (and any items affected thereby) and amounts in the True-Up Dispute Notice that remain unresolved. Any determination by the Independent Actuary shall not be outside the range defined by the respective amounts in the Final Closing Statement and the True-Up Dispute Notice, and such determination shall be final and binding upon, and non-appealable by, the Parties and their respective successors and assigns for all purposes of this Agreement, and not subject to collateral attack for any reason absent manifest error or fraud. The fees and expenses of the Independent Actuary arising from such arbitration shall be paid by the Parties pro rata based on where the Independent ActuaryAccounting Firm’s determination of each Item of Dispute submitted to it shall be in writing, shall conform with this Section 2.6 and, absent manifest error, shall be conclusive and binding upon each of the New Reinsurance Premium falls in comparison Parties, and the Closing Balance Sheet shall be modified to the extent necessary to reflect such determination(s). The Independent Accounting Firm shall allocate its fees, costs and expenses between the Buyer on the one hand, and the Seller on the other hand, based upon the percentage which the portion of the contested amount not awarded to each such Person bears to the amount claimed actually contested by ▇▇▇▇▇ such Person. The Company Transaction Expenses, Working Capital Deficiency, Working Capital Surplus, Indebtedness and Closing Cash, in each case as of immediately prior to the Final Closing Statement and the amount claimed by the Reinsurer in the True-Up Dispute Notice.
(d) If the New Reinsurance Premium as finally determined pursuant to this Section 3.3 is (i) greater than 2.6, are referred to herein as the Estimated New Reinsurance Premium (such difference, a “Positive Adjustment Amount”), then Aspen shall pay to the Reinsurer (or to the applicable Trust Accounts, to the extent that the Reinsurer’s Posted Collateral is less than the Initial Required Collateral Amount), by wire transfer of immediately available funds to one or more accounts designated in writing by the Reinsurer, the Positive Adjustment Amount within five (5) Business Days following final determination of the New Reinsurance Premium pursuant to this Section 3.3 or (ii) less than the Estimated New Reinsurance Premium (the absolute value of such difference, a Final Company Transaction Expenses,” “Negative Adjustment Amount”), then Aspen shall reduce the Funds Withheld Account Balance by the Negative Adjustment AmountFinal Working Capital Deficiency,” “Final Working Capital Surplus,” “Final Indebtedness,” and “Final Closing Cash,” respectively.
Appears in 1 contract
Post-Closing Adjustment. (ai) No later than forty-five (45) Within 45 days following after the Closing Date, Aspen Purchaser shall prepare and deliver to the Reinsurer Member Representative a detailed statement, which statement shall be substantially in the same form as of Section 2.07 of the Closing Statement Disclosure Schedules (the “Final Closing Statement”) setting forth Aspen), attaching the following items and certifying as to Purchaser’s good faith preparation and calculation of the following items:
(iA) an unaudited consolidated balance sheet of Target as of 11:59 P.M., Dallas, Texas time, on the Closing Date (the “Closing Balance Sheet”);
(B) the New Reinsurance Premium Closing Working Capital based on the Closing Balance Sheet, together with a calculation of the variance between the Estimated Closing Working Capital and Closing Working Capital;
(C) the Closing Accrued Tax Amount (including each component item), together with a calculation of the New Reinsurance Premium variance between the Estimated Closing Accrued Interest, the Roll-forward Tax Amount and the ULAE Reimbursement Closing Accrued Tax Amount;
(D) the Closing Indebtedness (including each component item), together with a calculation of the variance between the Estimated Closing Indebtedness and the Closing Indebtedness; and
(E) a calculation of the Post-Closing Adjustment.
(ii) After each of the Initial Required Collateral Closing Working Capital, Closing Accrued Tax Amount, and Closing Indebtedness has been finally determined in accordance with this Section 2.07 (the Closing Working Capital, Closing Accrued Tax Amount and Closing Indebtedness, in each case, as of so finally determined being referred to herein as 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 StatementWorking Capital”, “Final Closing Accrued Tax Amount”, and “Final Closing Indebtedness”), the Reinsurer and its authorized Representatives will be given reasonable access Aggregate Merger Consideration shall be, if necessary, further adjusted to all accountingreflect the Post-Closing Adjustment, actuarial and other data and documentation related to the preparation of the as follows: The “Final Post-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 Adjustment Amount” 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 an amount equal 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 Working Capital, minus 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 finalAccrued Tax Amount, 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 minus the Final Closing Statement within thirty (30) days following ▇▇▇▇▇’s receipt of a TrueIndebtedness. The “Estimated Post-Up Dispute Notice (the “True-up Dispute Cooling-Off Period”), the items and amounts in dispute Closing Adjustment Amount” shall be submitted for review to an amount equal the Independent Actuary for final determination within forty-five (45) days after such submission. The Independent Actuary shall decide all matters relating to Estimated Closing Working Capital, minus the procedures to be followed for resolution of the dispute, including those relating to the submission and receipt of information and documents; provided, however, that at the request of either Aspen or the Reinsurer, a meeting shall be held at which the Parties may present their views, that both Aspen and the Reinsurer shall have equal access to the Independent ActuaryEstimated Closing Accrued Tax Amount, and that all information and documents which either Party delivers or makes available to minus the Independent Actuary shall be furnished to the other Party as wellEstimated Closing Indebtedness. The review by the Independent Actuary shall be limited solely to the disputed items (and any items affected thereby) and amounts in the True-Up Dispute Notice that remain unresolved. Any determination by the Independent Actuary shall not be outside the range defined by the respective amounts in If the Final Post-Closing Statement and the True-Up Dispute Notice, and such determination shall be final and binding upon, and non-appealable by, the Parties and their respective successors and assigns for all purposes of this Agreement, and not subject to collateral attack for any reason absent manifest error or fraud. The fees and expenses of the Independent Actuary arising from such arbitration shall be paid by the Parties pro rata based on where the Independent Actuary’s determination of the New Reinsurance Premium falls in comparison to the amount claimed by ▇▇▇▇▇ in the Final Closing Statement and the amount claimed by the Reinsurer in the True-Up Dispute Notice.
(d) If the New Reinsurance Premium as finally determined pursuant to this Section 3.3 Adjustment Amount is (i) greater than the Estimated New Reinsurance Premium (such difference, a “Positive Post-Closing Adjustment Amount, Purchaser shall pay (or shall cause the Surviving Corporation to pay) to the Members (on a pro rata basis in accordance with their respective Post-Closing Participating Percentages) an amount equal to the absolute value of the difference between the Final Post-Closing Adjustment Amount and the Estimated Post-Closing Adjustment Amount (the “Post-Closing Adjustment”), then Aspen shall pay to . If the Reinsurer (or to the applicable Trust Accounts, to the extent that the Reinsurer’s Posted Collateral Final Post-Closing Adjustment Amount is less than the Initial Required Collateral Amount), by wire transfer of immediately available funds to one or more accounts designated in writing by the Reinsurer, the Positive Adjustment Amount within five (5) Business Days following final determination of the New Reinsurance Premium pursuant to this Section 3.3 or (ii) less than the Estimated New Reinsurance Premium (the absolute value of such difference, a “Negative Post-Closing Adjustment Amount”), then Aspen Purchaser shall reduce be entitled to payment of an amount equal to the Funds Withheld Account Balance by the Negative Post-Closing Adjustment Amountin accordance with Section 2.07(d)(vi) below.
Appears in 1 contract
Sources: Merger Agreement (Teladoc, Inc.)
Post-Closing Adjustment. (a) No later than forty-five Within one hundred twenty (45120) days following after the Closing Date, Aspen shall Purchaser will prepare and deliver to the Reinsurer a detailed statement Company Representative (i) an unaudited consolidated balance sheet of the Company as of the Adjustment Time, prepared in accordance with the same form as the Closing Statement Accounting Principles (the “Final Closing StatementBalance Sheet”) 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) a statement, prepared in good faith and in accordance with the Initial Required Collateral AmountAccounting Principles and the applicable definitions contained in this Agreement, setting forth Purchaser’s good faith calculations of Closing Indebtedness, Closing Net Working Capital, Transaction Expenses, Closing Cash, the Deferred Cash Amount and the resulting Cash Adjustment Amount and the resulting calculation of the final Merger Consideration (together with the Closing Balance Sheet, the “Closing Statement”), together with reasonable supporting documentation for the calculations and amounts contained in each case, as of the Closing Statement. If Purchaser fails to deliver the Closing Statement in accordance with this Section 2.14(a) within one hundred twenty (120) days after the Closing Date, together with then Purchaser will be deemed to have irrevocably accepted the Company’s calculation of Estimated Closing Indebtedness, Estimated Closing Net Working Capital, Estimated Transaction Expenses, Cash Adjustment Amount and the resulting Estimated Merger Consideration, in which case, all accounting, actuarial such amounts will be final and other data and documentation reasonably necessary binding on the parties for the Reinsurer to review ▇▇▇▇▇’s proposed final calculations purposes of such amounts.
this Section 2.14. (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 after delivery of the Reinsurer’s receipt of the Final Closing Statement, the Reinsurer Company Representative may deliver dispute Purchaser’s calculation of Closing Indebtedness, Closing Net Working Capital, Transaction Expenses or the resulting final Merger Consideration by delivering to Purchaser a written notice (the a “True-Up Dispute Notice”) to Aspen of any objections, specifying setting forth in reasonable detail any contested amounts and the basis thereforfor each such disputed item. The Company Representative may not in its Dispute Notice change the calculation of any line item included in the calculation of Estimated Closing Net Working Capital (as set forth in the Estimated Closing Statement) if such change would, which taken on an individual basis, have the Reinsurer may have result of increasing the Estimated Merger Consideration compared to what was reflected in the Final Estimated Closing Statement, other than to respond to changes in such line items set out in the Closing Statement. The failure of Purchaser will (and will cause 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 deliveredSurviving Company to) shall be deemed to be accepted by the Reinsurer as final, except furnish 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 such submission. The Independent Actuary shall decide all matters relating to the procedures to be followed for resolution of the dispute, including those relating to the submission and receipt of information and documents; provided, however, that at the request of either Aspen or the Reinsurer, a meeting shall be held at which the Parties may present their views, that both Aspen and the Reinsurer shall have equal access to the Independent Actuary, and that all information and documents which either Party delivers or makes available to the Independent Actuary shall be furnished to the other Party as well. The review by the Independent Actuary shall be limited solely to the disputed items (and any items affected thereby) and amounts in the True-Up Dispute Notice that remain unresolved. Any determination by the Independent Actuary shall not be outside the range defined by the respective amounts in the Final Closing Statement and the True-Up Dispute Notice, and such determination shall be final and binding upon, and non-appealable by, the Parties and their respective successors and assigns for all purposes of this Agreement, and not subject to collateral attack for any reason absent manifest error or fraud. The fees and expenses of the Independent Actuary arising from such arbitration shall be paid by the Parties pro rata based on where the Independent Actuary’s determination of the New Reinsurance Premium falls in comparison to the amount claimed by ▇▇▇▇▇ in the Final Closing Statement and the amount claimed by the Reinsurer in the True-Up Dispute Notice.
(d) If the New Reinsurance Premium as finally determined pursuant to this Section 3.3 is (i) greater than the Estimated New Reinsurance Premium (such difference, a “Positive Adjustment Amount”), then Aspen shall pay to the Reinsurer (or to the applicable Trust Accounts, to the extent that the Reinsurer’s Posted Collateral is less than the Initial Required Collateral Amount), by wire transfer of immediately available funds to one or more accounts designated in writing by the Reinsurer, the Positive Adjustment Amount within five (5) Business Days following final determination of the New Reinsurance Premium pursuant to this Section 3.3 or (ii) less than the Estimated New Reinsurance Premium (the absolute value of such difference, a “Negative Adjustment Amount”), then Aspen shall reduce the Funds Withheld Account Balance by the Negative Adjustment Amount.Company Representative and
Appears in 1 contract
Post-Closing Adjustment. (a) No later than forty-five (45) days following the Closing Date, Aspen AXIS shall deliver to the Reinsurer a detailed statement in the same form as the Closing Statement (the “Final Closing Statement”) setting forth AspenAXIS’s good faith calculation of (i) the New Reinsurance Premium (including the New Reinsurance Premium Accrued Interest, Interest and the Roll-forward Amount and the ULAE Reimbursement Amount) and (ii) the Initial Required Collateral Amount, in each case, as of the Closing DateDate and in accordance with the methodology set forth on Schedule 3.1(a) attached hereto, together with all accounting, actuarial and other data and documentation reasonably necessary for the Reinsurer to review ▇▇▇▇▇AXIS’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 AXIS 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 such submission. The Independent Actuary shall decide all matters relating to the procedures to be followed for resolution of the dispute, including those relating to the submission and receipt of information and documents; provided, however, that at the request of either Aspen or the Reinsurer, a meeting shall be held at which the Parties may present their views, that both Aspen and the Reinsurer shall have equal access to the Independent Actuary, and that all information and documents which either Party delivers or makes available to the Independent Actuary shall be furnished to the other Party as well. The review by the Independent Actuary shall be limited solely to the disputed items (and any items affected thereby) and amounts in the True-Up Dispute Notice that remain unresolved. Any determination by the Independent Actuary shall not be outside the range defined by the respective amounts in the Final Closing Statement and the True-Up Dispute Notice, and such determination shall be final and binding upon, and non-appealable by, the Parties and their respective successors and assigns for all purposes of this Agreement, and not subject to collateral attack for any reason absent manifest error or fraud. The fees and expenses of the Independent Actuary arising from such arbitration shall be paid by the Parties pro rata based on where the Independent Actuary’s determination of the New Reinsurance Premium falls in comparison to the amount claimed by ▇▇▇▇▇ in the Final Closing Statement and the amount claimed by the Reinsurer in the True-Up Dispute Notice.
(d) If the New Reinsurance Premium as finally determined pursuant to this Section 3.3 is (i) greater than the Estimated New Reinsurance Premium (such difference, a “Positive Adjustment Amount”), then Aspen shall pay to the Reinsurer (or to the applicable Trust Accounts, to the extent that the Reinsurer’s Posted Collateral is less than the Initial Required Collateral Amount), by wire transfer of immediately available funds to one or more accounts designated in writing by the Reinsurer, the Positive Adjustment Amount within five (5) Business Days following final determination of the New Reinsurance Premium pursuant to this Section 3.3 or (ii) less than the Estimated New Reinsurance Premium (the absolute value of such difference, a “Negative Adjustment Amount”), then Aspen shall reduce the Funds Withheld Account Balance by the Negative Adjustment Amount.notice
Appears in 1 contract
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 After Closing:
(i) if the New Reinsurance Premium (including Final Adjustment Amount is positive, then, within five Business Days following 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 determination of the Final Adjustment Amount in accordance with Section 2.06, (A) Parent shall deliver the Post-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 such submission. The Independent Actuary shall decide all matters relating to the procedures to be followed for resolution of the dispute, including those relating to the submission and receipt of information and documents; provided, however, that at the request of either Aspen or the Reinsurer, a meeting shall be held at which the Parties may present their views, that both Aspen and the Reinsurer shall have equal access to the Independent Actuary, and that all information and documents which either Party delivers or makes available to the Independent Actuary shall be furnished to the other Party as well. The review by the Independent Actuary shall be limited solely to the disputed items (and any items affected thereby) and amounts in the True-Up Dispute Notice that remain unresolved. Any determination by the Independent Actuary shall not be outside the range defined by the respective amounts in the Final Closing Statement and the True-Up Dispute Notice, and such determination shall be final and binding upon, and non-appealable by, the Parties and their respective successors and assigns for all purposes of this Agreement, and not subject to collateral attack for any reason absent manifest error or fraud. The fees and expenses of the Independent Actuary arising from such arbitration shall be paid by the Parties pro rata based on where the Independent Actuary’s determination of the New Reinsurance Premium falls in comparison to the amount claimed by ▇▇▇▇▇ in the Final Closing Statement and the amount claimed by the Reinsurer in the True-Up Dispute Notice.
(d) If the New Reinsurance Premium as finally determined pursuant to this Section 3.3 is (i) greater than the Estimated New Reinsurance Premium (such difference, a “Positive Adjustment Increase Amount”), then Aspen shall pay to the Reinsurer (or to the applicable Trust Accounts, to the extent that the Reinsurer’s Posted Collateral is less than the Initial Required Collateral Amount), by wire transfer of immediately available funds funds, to one an account or more accounts designated in writing by the ReinsurerPayments Administrator, for distribution to the Positive Stockholders in accordance with each Stockholder’s Common Pre-Contribution Proportionate Share, and (B) Parent and the Stockholder Representative shall deliver a joint instruction to the Escrow Agent to distribute the remaining Adjustment Escrow Amount on deposit in the Escrow Account, by wire transfer of immediately available funds, to an account or accounts designated by the Payments Administrator for further distribution to the Stockholders in accordance with each Stockholder’s Common Pre-Contribution Proportionate Share; and
(ii) if the Final Adjustment Amount is negative, then, within five (5) Business Days following final the determination of the New Reinsurance Premium pursuant Final Adjustment Amount in accordance with Section 2.06, Parent and the Stockholder Representative shall deliver a joint instruction to the Escrow Agent to distribute from any remaining Adjustment Escrow Amount in the Escrow Account by wire transfer of immediately available funds (A) the Post-Closing Adjustment Decrease Amount to the account or accounts designated by Parent in such instructions and (B) the remaining Adjustment Escrow Amount, if any, on deposit in the Escrow Account following the payment contemplated by clause (A) of this Section 3.3 2.05(c)(ii) to an account or (ii) less than accounts designated by the Estimated New Reinsurance Premium (Payments Administrator for further distribution to the absolute value Stockholders in accordance with each Stockholder’s Common Pre-Contribution Proportionate Share. If the remaining Adjustment Escrow Amount in the Escrow Account is insufficient to cover the entire Post-Closing Adjustment Decrease Amount payable to Parent pursuant hereto, each Stockholder, on or prior to the same date as the Escrow Agent distributes the remaining Adjustment Escrow Amount in the Escrow Account to Parent, shall pay an amount to Parent equal to such Stockholder’s Common Pre-Contribution Proportionate Share of the amount of such difference, a “Negative Adjustment Amount”), then Aspen shall reduce the Funds Withheld Account Balance by the Negative Adjustment Amountdeficiency.
Appears in 1 contract
Sources: Merger Agreement (Compass Group Diversified Holdings LLC)
Post-Closing Adjustment. (a) No later than forty-Within seventy five (4575) days following after the Closing Date, Aspen shall Purchaser will deliver to the Reinsurer Securityholder Representative (i) a detailed statement showing the Surviving Company’s good faith calculation of (A) the amount of Closing Cash, (B) the amount of Closing Indebtedness, (C) the amount of Closing Net Working Capital, and (D) the amount of Closing Transaction Expenses (the “Preliminary Statement”) and (ii) using the amounts referred to in the same form preceding clause (i) for such purpose, the Surviving Company’s calculation of the resulting Final Closing Merger Consideration and Shortfall Amount or Excess Amount, as the case may be, based thereon. Notwithstanding anything to the contrary set forth herein, without limiting any of the Securityholder Representative’s rights under this Agreement, if Purchaser fails to timely deliver the Preliminary Statement to the Securityholder Representative, and such failure is not cured within five (5) Business Days following the receipt of written notice by Purchaser from the Securityholder Representative of the same, the Securityholder Representative shall have the right, at its sole option, to designate (by delivering written notice to Purchaser) the Estimated Closing Statement to be the Final Closing Statement, and if such designation is made, no adjustment will be made under this Section 1.05.
(b) The Estimated Closing Statement and the Preliminary Statement shall be prepared, and the amount of Closing Cash, the amount of Closing Indebtedness, the Closing Net Working Capital and the Closing Transaction Expenses shall be determined, on a consolidated basis in accordance with this Agreement, including, in the case of Closing Cash and Closing Net Working Capital, the Accounting Principles, and, in the case of Closing Net Working Capital, shall not include (i) any changes in assets or liabilities as a result of purchase accounting adjustments or other changes arising from or resulting as a consequence of the transactions contemplated hereby, or (ii) any additional reserve or accrual (including any increase in any existing reserve or accrual) that is not reflected in the Latest Balance Sheet, in each case of the foregoing (i) and (ii), except as set forth in the Accounting Principles.
(c) During the earlier of (x) thirty (30) days immediately following the Securityholder Representative’s receipt of the Preliminary Statement and (y) the Final Determination Date, Purchaser shall, and shall cause the Acquired Companies and their representatives to: (i) provide the Securityholder Representative with reasonable access to the working papers reasonably relating to the Preliminary Statement (subject to the execution of customary work papers access letters, if requested) and such other related books and records reasonably relating to the Preliminary Statement and access to the Acquired Companies’ personnel that participated in the preparation of the Preliminary Statement regarding questions concerning or disagreements with the Preliminary Statement; provided, that such access shall occur during normal business hours, with reasonable notice, and in a manner that does not unreasonably interfere with the normal business operations of Purchaser, the Surviving Company, or their respective Affiliates, and (ii) reasonably cooperate with the Securityholder Representative in its review of the Preliminary Statement, in each case as reasonably requested in connection with the review of the Preliminary Statement. The Preliminary Statement will become final and binding upon the parties hereto on the thirtieth (30th) day following receipt thereof by the Securityholder Representative, unless the Securityholder Representative gives written notice of its disagreement with the Preliminary Statement (the “Notice of Disagreement”) to Purchaser prior to such date. The Notice of Disagreement will specify each item or amount in the Preliminary Statement with which the Securityholder Representative disagrees and in reasonable detail the basis for its objections thereto, and its alternative calculation of such items or amounts (to the extent such items are capable of being alternatively calculated) and of the Final Merger Consideration based thereon.
(d) The Preliminary Statement (as revised in accordance with clauses (ii) and/or (iii) below) will become final and binding upon the parties hereto (the “Final Closing Statement”) setting forth Aspen’s good faith calculation on the date on which the amount of Closing Cash, Closing Indebtedness, Closing Net Working Capital and/or Closing Transaction Expenses are all deemed final and binding, which shall be on the earlier of (i) the New Reinsurance Premium (including the New Reinsurance Premium Accrued Interestif a timely Notice of Disagreement is not received by Purchaser, the Roll-forward Amount and date that is the ULAE Reimbursement Amountthirtieth (30th) and day following receipt of the Preliminary Statement by the Securityholder Representative pursuant to Section 1.05(c), (ii) if a timely Notice of Disagreement is received by Purchaser, the Initial Required Collateral Amountdate Purchaser and the Securityholder Representative resolve in writing any differences they have with respect to any matter specified in the Notice of Disagreement pursuant to this Section 1.05(d), and (iii) if a timely Notice of Disagreement is received by Purchaser, the date any matters properly in dispute are finally resolved in writing by the Independent Auditor pursuant to Section 1.05(e). The date on which the Preliminary Statement shall become the Final Closing Statement pursuant to the immediately foregoing sentence is referred to as the “Final Determination Date”. The amount of Closing Cash, the amount of Closing Indebtedness, the Closing Net Working Capital and the amount of Closing Transaction Expenses, in each case as finally determined in the Final Closing Statement, shall be referred to herein as the “Final Cash,” the “Final Indebtedness,” the “Final Net Working Capital” and the “Final Transaction Expenses”. During the thirty (30) days immediately following the delivery of a Notice of Disagreement, Purchaser and the Securityholder Representative will consult in good faith to resolve in writing any differences which they may have with respect to any matter specified in the Notice of Disagreement, and any such resolution shall be final and binding on the parties hereto.
(e) At the end of such thirty (30)-day consultation period, if Purchaser and the Securityholder Representative have not resolved their disputes with respect to the items specified in the Notice of Disagreement, the Securityholder Representative and Purchaser shall jointly retain and shall submit any and all such matters which remain in dispute and which were properly included in the Notice of Disagreement (and no other matter) to the Independent Auditor. The Independent Auditor will work to resolve such dispute promptly and, in any event, within thirty (30) days from the date the dispute is submitted to the Independent Auditor. Any item not specifically referred to the Independent Auditor for evaluation shall be deemed final and binding on the parties hereto. The Independent Auditor will act as an expert and not an arbitrator, and determine the Final Closing Statement, based solely on the provisions of this Agreement and submissions by Purchaser and the Securityholder Representative (and not by independent review). Purchaser and the Securityholder Representative shall each provide the other with any position papers or back-up documentation that such party submitted or presented to the Independent Auditor in connection with such dispute concurrently with the delivery of such materials to the Independent Auditor (subject in the case of the accountant’s work papers to the execution of a customary work paper access letter upon request); provided that neither Purchaser nor the Securityholder Representative shall engage in any ex-parte communication with the Independent Auditor. The Independent Auditor shall reach a final, binding resolution of such matters, which final resolution shall not be subject to collateral attack, review or appeal for any reason (other than fraud or manifest error) and shall be (i) in writing and signed by the Independent Auditor and set forth, in reasonable detail, the Independent Auditor’s determination with respect to each of the items in dispute, with supporting calculations, (ii) within the range of the amount of each item in dispute contested by ▇▇▇▇▇▇▇▇▇ and the Securityholder Representative (i.e., in each case, as no lower than the lowest amount proposed by any such party and no higher than the highest amount proposed by any such party) on an item-by-item basis, and (iii) made in accordance with this Agreement (including the definitions herein) and the Accounting Principles. The parties hereto agree that the failure of the Closing DateIndependent Auditor to strictly conform to any deadline or time period contained herein shall not render the determination of the Independent Auditor invalid and shall not be a basis for seeking to overturn any determination rendered by the Independent Auditor. The procedure outlined in this Section 1.05(e) is referred to as the “Dispute Resolution Procedure”.
(f) Purchaser and the Securityholder Representative shall each pay their own costs and expenses incurred in connection with the Dispute Resolution Procedure; provided, together with all accounting, actuarial that the fees and other data expenses of the Independent Auditor shall be borne by Purchaser and documentation reasonably necessary for the Reinsurer Securityholder Representative based on the inverse of the percentage that the Independent Auditor’s determination bears to review the total amount of the total items in dispute as originally submitted to the Independent Auditor by ▇▇▇▇▇▇▇▇▇ and the Securityholder Representative. For example, should the items in dispute total in amount to $1,000 and the Independent Auditor awards $600 in favor of the Securityholder Representative’s proposed final calculations position, 60% of such amountsthe costs and expenses of its review would be borne by Purchaser and 40% of the costs and expenses would be borne by the Securityholder Representative.
(bg) Upon receipt ▇▇▇▇▇▇▇▇▇ agrees that, from and after the Closing until the Final Determination Date, Purchaser will not take any actions with respect to the Accounting Principles or the Acquired Companies’ books and records that would reasonably be expected to adversely affect any Seller, the Securityholder Representative or the Independent Auditor in connection with any disputes brought, or determinations made, under this Section 1.05.
(h) The parties hereto agree that the procedures set forth in this Section 1.05 for resolving disputes with respect to the Preliminary Statement shall be the sole and exclusive method for resolving such disputes; provided, that this provision shall not prohibit any party from instituting a proceeding pursuant to the terms hereof to enforce any final determination of the Final Merger Consideration as determined in accordance with this Section 1.05.
(i) If, after final determination 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 Closing Date Merger Consideration is less than the Final Closing Statement for Merger Consideration (such shortfall, not to exceed 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 StatementEscrow Amount, 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 such submission. The Independent Actuary shall decide all matters relating to the procedures to be followed for resolution of the dispute, including those relating to the submission and receipt of information and documents; provided, however, that at the request of either Aspen or the Reinsurer, a meeting shall be held at which the Parties may present their views, that both Aspen and the Reinsurer shall have equal access to the Independent Actuary, and that all information and documents which either Party delivers or makes available to the Independent Actuary shall be furnished to the other Party as well. The review by the Independent Actuary shall be limited solely to the disputed items (and any items affected thereby) and amounts in the True-Up Dispute Notice that remain unresolved. Any determination by the Independent Actuary shall not be outside the range defined by the respective amounts in the Final Closing Statement and the True-Up Dispute Notice, and such determination shall be final and binding upon, and non-appealable by, the Parties and their respective successors and assigns for all purposes of this Agreement, and not subject to collateral attack for any reason absent manifest error or fraud. The fees and expenses of the Independent Actuary arising from such arbitration shall be paid by the Parties pro rata based on where the Independent Actuary’s determination of the New Reinsurance Premium falls in comparison to the amount claimed by ▇▇▇▇▇ in the Final Closing Statement and the amount claimed by the Reinsurer in the True-Up Dispute Notice.
(d) If the New Reinsurance Premium as finally determined pursuant to this Section 3.3 is (i) greater than the Estimated New Reinsurance Premium (such difference, a “Positive Adjustment Shortfall Amount”), then Aspen then, within two (2) Business Days after the Final Determination Date:
(i) Purchaser and the Surviving Company, jointly and severally, shall pay or cause to be paid (A) to the Reinsurer Securityholder Representative (or to on behalf of, and for further distribution to, the applicable Trust Accounts, to the extent that the Reinsurer’s Posted Collateral is less than the Initial Required Collateral AmountExecutory Sellers), by wire transfer of immediately available funds funds, the Executory Sellers’ portion of the Shortfall Amount according to one or more accounts designated in writing the Payment Schedule (as directed by the ReinsurerSecurityholder Representative and in accordance with Section 1.03(c)), (B) to the Exchange Agent, by wire transfer of immediately available funds, for further distribution to each Seller not party hereto that has submitted a duly executed and completed Letter of Transmittal, such Sellers’ portions of the Shortfall Amount according to the Payment Schedule, and (C) to the applicable Acquired Company (on behalf of, and for further distribution to, the Positive Adjustment Optionholders), by wire transfer of immediately available funds, the Optionholders’ portion of the Shortfall Amount according to the Payment Schedule and payable in accordance with Section 1.03(c); and
(ii) Purchaser and the Securityholder Representative shall deliver a joint written instruction to the Escrow Agent to cause the Escrow Agent to pay, by wire transfer of immediately available funds from the Escrow Account within five two (52) Business Days following after delivery of such joint written instruction, (A) to the Securityholder Representative (on behalf of, and for further distribution to, the Executory Sellers), the Executory Sellers’ portion of the remaining funds in the Escrow Account according to the Payment Schedule (as directed by the Securityholder Representative and in accordance with Section 1.03(c)), (B) to the Exchange Agent, for further distribution to each Seller not party hereto that has submitted a duly executed and completed Letter of Transmittal, such Sellers’ portions of the remaining funds in the Escrow Account according to the Payment Schedule, and (C) to the applicable Acquired Company (on behalf of, and for further distribution to, the Optionholders), the Optionholders’ portion of the remaining funds in the Escrow Account according to the Payment Schedule and as payable in accordance with Section 1.03(c).
(j) If, after final determination of the New Reinsurance Premium pursuant to this Section 3.3 or (ii) less Final Closing Statement, the Closing Date Merger Consideration is greater than the Estimated New Reinsurance Premium Final Merger Consideration (such excess, the absolute value of such difference, a “Negative Adjustment Excess Amount”), then Aspen within two (2) Business Days after the Final Determination Date, Purchaser and the Securityholder Representative shall reduce deliver a joint written instruction to the Funds Withheld Escrow Agent instructing the Escrow Agent to pay, by wire transfer of immediately available funds from the Escrow Account Balance within two (2) Business Days after delivery of such joint written instruction:
(i) to Purchaser, the lesser of (A) the Excess Amount, and (B) the remaining funds in the Escrow Account; and
(ii) (A) to the Securityholder Representative (on behalf of, and for further distribution to, the Executory Sellers), the Executory Sellers’ portion of the remaining funds in the Escrow Account (if any) after the payment to Purchaser described in Section 1.05(j)(i) according to the Payment Schedule (as directed by the Negative Adjustment Securityholder Representative and in accordance with Section 1.03(c)), (B) to the Exchange Agent, for further distribution to each Seller not a party hereto that has submitted a duly executed and completed Letter of Transmittal, such Sellers’ portions of the remaining funds in the Escrow Account (if any) after the payment to Purchaser described in Section 1.05(j)(i) according to the Payment Schedule, and (C) to the applicable Acquired Company (on behalf of, and for further distribution to, the Optionholders), the Optionholders’ portion of the remaining funds in the Escrow Account (if any) after the payment to Purchaser described in Section 1.05(j)(i) according to the Payment Schedule and as payable in accordance with Section 1.03(c)).
(k) Notwithstanding any provision of this Agreement to the contrary, in no event shall any recovery by the Securityholder Representative, the Executory Sellers, the Securityholders and/or any other Securityholder Affiliate for all or any portion of the Shortfall Amount, if any, exceed an aggregate amount equal to the amount of the Escrow Amount, and in no event will any such Person or any of their respective Affiliates institute any Action against, seek to recover from, or have any right to recover from Purchaser or any Affiliate of Purchaser payment of any portion of the Shortfall Amount, if any, in excess of the amount of the Escrow Amount. Notwithstanding any provision of this Agreement to the contrary, in no event shall any recovery by Purchaser or any other member of the Purchaser Group for all or any portion of the Excess Amount, if any, exceed an aggregate amount equal to the amount of the Escrow Amount, and in no event will any such Person or any of their respective Affiliates institute any Action against, seek to recover from, or have any right to recover from the Securityholder Representative, the Executory Sellers, the Securityholders or any other Securityholder Affiliate payment of any portion of the Excess Amount, if any, in excess of the amount of the Escrow Amount.
Appears in 1 contract
Post-Closing Adjustment. (a) No later than forty-five sixty (4560) days following after the Land Rights Closing, Seller shall cause to be prepared and delivered to Buyer a statement, prepared in the same format as the Estimated Land Rights Closing Statement (the “Land Rights Closing Statement”), as of the Land Rights Closing Date, Aspen of (i) the Land Rights Closing Assumed Liability Amount, including the components thereof for each item of Indebtedness and any Assumed RTS Project Land Rights Liability referenced in Section 2.01(i), (ii) the Fair Market Value of each RTS Project Land Right or category of RTS Project Land Rights Transferred to Buyer at the Land Rights Closing, as determined in accordance with Section 2.14 and the Regulatory Methodologies, and (iii) the Land Rights Purchase Price for the RTS Project Land Rights, as of the Land Rights Closing Date, calculated in accordance with Section 2.08.
(b) No later than sixty (60) days after the Undepreciated Assets Closing, Seller shall cause to be prepared and delivered to Buyer a statement, prepared in the same format as the Estimated Undepreciated Assets Closing Statement (the “Undepreciated Assets Closing Statement”), as of the Undepreciated Assets Closing Date, as applicable, of (i) the undepreciated capital cost of each Undepreciated Asset or category of Undepreciated Assets Transferred to Buyer at the Undepreciated Assets Closing, derived from the financial books and records of Seller and as of the end of the most recently completed calendar month immediately after the Undepreciated Assets Closing, and prepared in good faith in accordance with the Regulatory Methodologies, (ii) the Undepreciated Assets Closing Assumed Liability Amount, including the components thereof for each item of Indebtedness and any Assumed Undepreciated Assets Liability referenced in Section 2.02(c), and (iii) the Undepreciated Assets Purchase Price for the applicable Undepreciated Assets, as of the Undepreciated Assets Closing Date, calculated in accordance with Section 2.09. Concurrently with the delivery of the Undepreciated Assets Closing Statement for the Undepreciated Assets Closing, Seller shall deliver to Buyer the Reinsurer a detailed statement Updated Undepreciated Assets Cost Statement as of such Undepreciated Assets Closing and shall also provide Buyer any update to the information specified in Section 2.09(e).
(c) Buyer shall have ten (10) Business Days from the date on which the applicable Closing Statement is delivered to it (the “Review Period”) to review the Closing Statement. Seller shall, and shall cause its Representatives to, upon request, provide Buyer with reasonable assistance in reviewing such statements, including by providing Buyer and its representatives with access to such information (including any books and records) and personnel and Representatives of Seller as Buyer may reasonably request in connection with its review and, subject to, in the same form as case of independent accountant work papers, Buyer entering into a customary release agreement with respect thereto provided that Seller shall not be obligated to deliver any accountant work papers that such accounting firm does not consent to delivery thereof. Unless Buyer delivers written notice to Seller on or prior to the last day of the Review Period stating that it objects to any item or items shown or reflected on the Closing Statement (which objections may only be based on (i) manifest arithmetic error, (ii) any calculation not having been made in accordance with the Regulatory Methodologies, (iii) that any asset or Liability reflected on the Final Updated Schedule is not a Purchased Asset or Assumed Liability as defined in this Agreement and should not have been Transferred or assumed at the applicable Closing, (iv) that the charges or expenses incurred by Seller for any Purchased Asset or Assumed Liability that are reflected in the Land Rights Purchase Price or the Undepreciated Assets Purchase Price, as the case may be, were incorrectly billed or allocated to such Purchased Assets, or (v) that the Fair Market Value of any RTS Project Land Right contained in the Closing Statement is inconsistent with the Fair Market Value of such RTS Project Land Right in the regulatory filings approved by the NYPSC, and, in each case, providing a memorandum from Buyer’s legal counsel specifying in detail the item or items to which it objects and the reasons therefor, including applicable legal precedent (such item or items, the “Disputed Items” and such notice, the “Dispute Notice”)), the Closing Statement shall be deemed accepted by Buyer and, without limiting Section 5.08, the calculations set forth therein shall be final, binding and conclusive for all purposes of determining the True-Up Payment Amount in Section 2.12(f), if any.
(d) In the event of delivery of a Dispute Notice by Buyer, senior executives of Buyer (including a Manager of Buyer not appointed by an Affiliate of Seller), on the one hand, and senior executives of Seller, on the other hand, shall attempt to resolve their differences arising from the Disputed Items, and any resolution agreed by them in writing shall be final, binding and conclusive for all purposes of determining the True-Up Payment Amount in Section 2.12(f), if any. In the event that, for any reason, such senior executives are unable to amicably resolve all their differences in writing within ten (10) days (or such longer period as the Parties may agree in writing) following receipt of a Dispute Notice (the “Resolution Period”), any remaining Disputed Item not agreed in writing by the Parties shall be, unless the Parties have mutually agreed in writing on an alternative method of resolution of the Dispute prior to the end of the Resolution Period, submitted to a partner or senior employee of PriceWaterhouseCoopers LLC (the “Independent Accountant”); provided, however, that any remaining Disputed Item related to any matter addressed in Section 2.12(c)(iii) shall not be submitted to the Independent Accountant and, in such case, any such Purchased Asset or Closing Assumed Liability Amount as reflected in the Closing Statement shall be final, binding and conclusive for all purposes of determining the True-Up Payment Amount in Section 2.12(f), if any; provided, further, however, nothing in the foregoing shall limit the right of Buyer to commence an Action pursuant to Section 9.12 to resolve any such Disputed Item. If PriceWaterhouseCoopers LLC is unwilling or unable to serve as the Independent Accountant, each of Buyer and Seller will jointly select and retain a partner or senior employee of a nationally recognized accounting firm that is not the auditor or independent accounting firm of any of the Parties, who is a certified public accountant and is independent of the Parties and impartial, to serve as the Independent Accountant. If, after fifteen (15) days after the date PriceWaterhouseCoopers LLC informs the Parties that it is unable or unwilling to have a partner of the firm serve as the Independent Accountant, the Parties cannot mutually agree on an alternate arbiter, any Party may request the AAA to appoint as the Independent Accountant, within fifteen (15) days from the date of such request or as soon as practicable thereafter, a partner in an internationally recognized accounting firm that is not the auditor or independent accounting firm of any of the Parties, who is a certified public accountant and who is independent of the Parties and impartial. For the avoidance of doubt, the fact that any nationally recognized accounting firm serves as the auditor or independent accounting firm of any ultimate parent of a Member of Buyer (other than the Member appointed by an Affiliate of Seller) shall not by reason of such disqualify any partner or senior employee thereof from serving as the Independent Accountant. If, for any reason, the Parties are unable to agree on the Disputed Items within the Resolution Period, each of Buyer, on the one hand, and Seller, on the other hand, shall prepare separate written reports of such Disputed Items and deliver such reports to the Independent Accountant within twenty (20) days after the later of the expiration of the Resolution Period and the date the Independent Accountant is retained. The Parties shall use their respective reasonable efforts to cause the Independent Accountant to, acting as an expert, as soon as practicable and in any event, barring exceptional circumstances, within thirty (30) days after receiving such written reports, determine the manner in which the Disputed Items shall be treated in the Closing Statements; provided, however, that the dollar amount of each item in dispute shall be determined within the range of dollar amounts proposed by Buyer, on the one hand, and Seller, on the other hand. The Parties acknowledge and agree that (i) the review by and determination of the Independent Accountant shall be limited to, and only to, the unresolved Disputed Items contained in the reports prepared and submitted to the Independent Accountant by the Parties and (ii) the determinations by the Independent Accountant shall be based solely on such reports submitted by the Parties and the basis for each Party’s respective positions. Each Party agrees to enter into an engagement letter with the Independent Accountant containing customary terms and conditions for this type of engagement. The Parties shall use their commercially reasonable efforts to cooperate with and provide information and documentation, including work papers, to assist the Independent Accountant. Any such information or documentation provided by any Party hereto to the Independent Accountant shall be concurrently delivered to the other Party hereto, subject, in the case of independent accountant work papers, to such other Party entering into a customary confidentiality and release agreement with respect thereto. None of the Parties shall disclose to the Independent Accountant, and the Independent Accountant shall not consider for any purposes, any settlement discussions or settlement offers made by any of the Parties with respect to any objection under this Section 2.12. The determinations by the Independent Accountant as to the Disputed Items shall be in writing and shall be an expert determination that is final, binding and conclusive for all purposes of determining the adjustments in this Section 2.12, if any, and such determination may be entered and enforced in any court of competent jurisdiction. The fees, costs and expenses of retaining the Independent Accountant shall be borne by Buyer, on the one hand, and Seller, on the other hand, in proportion to those matters submitted to the Independent Accountant that are resolved against Buyer, on the one hand, and Seller, on the other hand, and the allocation of such fees, costs and expenses shall be so determined by the Independent Accountant.
(e) No later than the fifth (5th) Business Day immediately following the resolution of all Disputed Items (or, if there is no dispute, promptly after the Parties reach agreement on the Closing Statement), Seller shall revise the Closing Statement to reflect the resolution of any Disputed Items (as so revised, the “Final Closing Statement”) setting forth Aspen’s good faith calculation of and shall deliver a copy thereof to Buyer. Buyer shall have five (i5) Business Days from 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 date on which the Final Closing Statement for the purpose of, and is delivered to the extent reasonably necessary for, verifying it to review the Final Closing Statement; provided, Statement solely for purposes of confirming that no independent accountants such statements accurately reflect the prior resolution of all matters set forth in the Dispute Notice either by mutual agreement of the Parties or independent actuaries of Aspen shall be required to make any work papers available to by 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 actuariesIndependent Accountant, as applicable. Within forty-five (45) days The calculations of the Reinsurer’s receipt Land Rights Purchase Price as provided for in Section 2.08, or the Undepreciated Assets Purchase Price as provided for in Section 2.09, as the case may be, and the amount of the Final Closing Statement, the Reinsurer may deliver written notice (the “any True-Up Dispute NoticePayment Amount pursuant to Section 2.12(f), once accepted by Buyer in the manner provided by the preceding sentence, shall be referred to as the “Final Statement.”
(f) to Aspen of any objections, specifying in reasonable detail any contested amounts and Effective upon the basis therefor, which the Reinsurer may have to the Final Closing Statement. The failure end of the Reinsurer to deliver such True-Up Review Period (if a timely Dispute Notice within is not delivered), or upon the prescribed time period will constitute resolution of all matters set forth in the Reinsurer’s acceptance as final Dispute Notice either by mutual agreement of the Final Closing Statement as determined Parties or by ▇▇▇▇▇. Any amounts not disputed in the Independent Accountant, the Parties shall make the following true-up payments:
(i) If the True-Up Dispute Notice Payment Amount is positive, within two (if one is delivered2) 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 such submission. The Independent Actuary shall decide all matters relating to the procedures to be followed for resolution Business Days of the disputedetermination thereof Buyer shall transfer to Seller the amount of such True- Up Payment Amount, together with interest thereon from and including those relating to the submission and receipt applicable Closing Date but not including the date of information and documents; providedsuch transfer, however, that computed at the request of either Aspen or the Reinsurer, a meeting shall be held at which the Parties may present their views, that both Aspen Federal Funds Rate plus one hundred and the Reinsurer shall have equal access to the Independent Actuary, and that all information and documents which either Party delivers or makes available to the Independent Actuary shall be furnished to the other Party as well. The review by the Independent Actuary shall be limited solely to the disputed items fifty (and any items affected thereby150) and amounts in the True-Up Dispute Notice that remain unresolved. Any determination by the Independent Actuary shall not be outside the range defined by the respective amounts in the Final Closing Statement and the True-Up Dispute Notice, and such determination shall be final and binding upon, and non-appealable by, the Parties and their respective successors and assigns for all purposes of this Agreement, and not subject to collateral attack for any reason absent manifest error or fraud. The fees and expenses of the Independent Actuary arising from such arbitration shall be paid by the Parties pro rata based on where the Independent Actuary’s determination of the New Reinsurance Premium falls in comparison to the amount claimed by ▇▇▇▇▇ in the Final Closing Statement and the amount claimed by the Reinsurer in the True-Up Dispute Notice.
(d) If the New Reinsurance Premium as finally determined pursuant to this Section 3.3 is (i) greater than the Estimated New Reinsurance Premium (such difference, a “Positive Adjustment Amount”), then Aspen shall pay to the Reinsurer (or to the applicable Trust Accounts, to the extent that the Reinsurer’s Posted Collateral is less than the Initial Required Collateral Amount)basis points, by wire transfer of immediately available funds to one an account or more accounts designated in writing by Seller.
(ii) If the ReinsurerTrue-Up Payment Amount is negative, the Positive Adjustment Amount within five two (52) Business Days following final determination of the New Reinsurance Premium pursuant determination thereof Seller shall transfer to this Section 3.3 or (ii) less than the Estimated New Reinsurance Premium (Buyer an amount equal to the absolute value of such differenceTrue-Up Payment Amount, a together with interest thereon from and including the applicable Closing Date but not including the date of such transfer, computed at the Federal Funds Rate plus one hundred and fifty (150) basis points, by wire transfer of immediately available funds to an account or accounts designated in writing by Buyer.
(g) As used in Section 2.12(f) the “Negative Adjustment True-Up Payment Amount”)” shall mean an amount (which may be positive or negative) equal to the difference of the Land Rights Purchase Price or the Undepreciated Assets Purchase Price, then Aspen shall reduce as the Funds Withheld Account Balance case may be, reflected in the Final Statement, minus the Land Rights Purchase Price or the Undepreciated Assets Purchase Price, as the case may be, paid by Buyer to Seller at the Negative Adjustment Amountapplicable Closing.
Appears in 1 contract
Sources: Asset Purchase Agreement
Post-Closing Adjustment. (a) No later Not less than forty-five three (453) days following Business Days prior to the Closing Date, Aspen the Company shall deliver to the Reinsurer Purchaser (i) an unaudited balance sheet prepared as a detailed statement in good faith estimate of the same form Company’s balance sheet as of immediately prior to the Closing Statement Effective Time (the “Final Estimated Closing StatementBalance Sheet”), (ii) setting forth Aspenbased on the Estimated Closing Balance Sheet, a statement, certified by the Chief Executive Officer or Vice President of Finance of the Company, detailing the Company’s good faith calculation of (iA) the New Reinsurance Premium Closing Cash (including the New Reinsurance Premium Accrued Interest“Estimated Closing Cash”), (B) the Closing Indebtedness (the “Estimated Closing Indebtedness”), and (C) the Net Working Capital (such statement, the Roll-forward Amount “Estimated Closing Statement,” and the ULAE Reimbursement Amount) and (ii) the Initial Required Collateral Amount, in each case, as calculation of the Closing Date, together with all accounting, actuarial and other data and documentation reasonably necessary for Net Working Capital as set forth in the Reinsurer to review ▇▇▇▇▇’s proposed final calculations of such amounts.
(b) Upon receipt of the Final Estimated Closing Statement, the Reinsurer and its authorized Representatives will be given reasonable access to all accounting“Estimated Closing Net Working Capital”), 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 (iii) 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 statement (the “True-Up Dispute NoticeEstimated Transaction Expense Statement”) ), certified by the Chief Executive Officer or Vice President of Finance of the Company, setting forth the Company’s good faith estimate of the amount of Unpaid Transaction Expenses (the “Estimated Unpaid Transaction Expenses”), including an itemized list identifying each Person entitled to Aspen receive payment 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 portion of the Reinsurer Estimated Unpaid Transaction Expenses, the total amount owed to deliver such True-Up Dispute Notice within the prescribed time period will constitute the Reinsurer’s acceptance as final Person, a description of the Final Closing Statement as determined by ▇▇▇▇▇. Any amounts not disputed in nature of expenses owed to such person and payment instructions for the True-Up Dispute Notice payment of such Estimated Unpaid Transaction Expenses, and (if one is deliverediv) shall be deemed to be accepted any additional information reasonably requested 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 Purchaser with respect to the Final amounts or calculations set forth in the Estimated Closing Balance Sheet, the Estimated Closing Statement within thirty (30) days following ▇▇▇▇▇’s receipt of a True-Up Dispute Notice (or the “True-up Dispute Cooling-Off Period”), the items and amounts in dispute Estimated Transaction Expense Statement. The Estimated Closing Balance Sheet shall be submitted for review to the Independent Actuary for final determination within forty-five (45) days after such submission. The Independent Actuary shall decide all matters relating to the procedures to be followed for resolution of the dispute, including those relating to the submission and receipt of information and documents; provided, however, that at the request of either Aspen or the Reinsurer, a meeting shall be held at which the Parties may present their views, that both Aspen and the Reinsurer shall have equal access to the Independent Actuary, and that all information and documents which either Party delivers or makes available to the Independent Actuary shall be furnished to the other Party as well. The review by the Independent Actuary shall be limited solely to the disputed items (and any items affected thereby) and amounts in the True-Up Dispute Notice that remain unresolved. Any determination by the Independent Actuary shall not be outside the range defined by the respective amounts in the Final Closing Statement and the True-Up Dispute Notice, and such determination shall be final and binding upon, and non-appealable by, the Parties and their respective successors and assigns for all purposes of this Agreement, and not subject to collateral attack for any reason absent manifest error or fraud. The fees and expenses of the Independent Actuary arising from such arbitration shall be paid by the Parties pro rata based on where the Independent Actuary’s determination of the New Reinsurance Premium falls in comparison to the amount claimed by ▇▇▇▇▇ in the Final Closing Statement and the amount claimed by the Reinsurer in the True-Up Dispute Notice.
(d) If the New Reinsurance Premium as finally determined pursuant to this Section 3.3 is (i) greater than calculated in a manner consistent with the Estimated New Reinsurance Premium accrual method accounting (such difference, a “Positive Adjustment Amount”), then Aspen shall pay to the Reinsurer (or to the applicable Trust Accounts, to the extent that the Reinsurer’s Posted Collateral is less than the Initial Required Collateral Amount), by wire transfer except as otherwise Table of immediately available funds to one or more accounts designated in writing by the Reinsurer, the Positive Adjustment Amount within five (5) Business Days following final determination of the New Reinsurance Premium pursuant to this Section 3.3 or (ii) less than the Estimated New Reinsurance Premium (the absolute value of such difference, a “Negative Adjustment Amount”), then Aspen shall reduce the Funds Withheld Account Balance by the Negative Adjustment Amount.Contents
Appears in 1 contract
Sources: Merger Agreement (Gannett Co., Inc.)
Post-Closing Adjustment. (a) No later than forty-five Within sixty (4560) calendar days following after the Closing Date, Aspen Purchaser shall deliver to the Reinsurer Shareholders’ Representative a detailed statement in the same form as the Closing Statement (the “Final Purchaser Post-Closing Statement”) prepared in accordance with the Accounting Principles setting forth Aspenin reasonable detail (on a line item by line item basis) Purchaser’s good faith calculation of the Final Consideration and the components thereof, including (i) the New Reinsurance Premium (including the New Reinsurance Premium Accrued InterestCompany Cash, the Roll-forward Amount and the ULAE Reimbursement Amount) and (ii) Outstanding Indebtedness, and (iii) Net Working Capital (the Initial Required Collateral Amount, in each case, as of the “Post-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 amountsConsideration Calculation”).
(b) Upon receipt of the Final Purchaser Post-Closing Statement, the Reinsurer and its authorized Representatives will be given reasonable access Shareholders’ Representative shall have thirty (30) days within which to all accounting, actuarial and other data and documentation related to review the preparation Post-Closing Consideration Calculation after Purchaser’s delivery 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 fortyPurchaser Post-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 Shareholders’ Representative may object to the Post- Closing Consideration Calculation set forth in the Purchaser Post-Closing Statement by providing written notice of such objection to Purchaser within thirty (30) days (the “Objection Period”) after Purchaser’s delivery of the Reinsurer to deliver Purchaser Post-Closing Statement (the “Notice of Objection”), which notice shall set forth the basis for such True-Up Dispute Notice within objection in reasonable detail, along with the prescribed time Shareholders’ Representative’s calculation and proposed modification of each disputed item, together with supporting documentation, information and the Shareholders’ Representative’s proposed calculations for each disputed item. During such thirty (30)-day period will constitute and thereafter until the Reinsurer’s acceptance as final determination of the Final Consideration pursuant to Section 2.05(d), the Shareholders’ Representative and its advisors (including its independent accounting firm) shall be provided with prompt access (including remote access) to the books, records, work papers and other documents (subject to the execution of customary work paper access letters and excluding any communications with attorneys that are subject to the attorney-client privilege), personnel, consultants and advisors (including the independent accounting firm) of the Company and Purchaser as they may reasonably request to enable it to evaluate the calculations of Final Consideration, Net Working Capital, Company Cash and Outstanding Indebtedness prepared by Purchaser and set forth in the Purchaser Post-Closing Statement. Such access shall be provided during regular business hours and upon reasonable advance notice. If the Shareholders’ Representative does not deliver a Notice of Objection within the Objection Period, then Purchaser’s calculation of each item contained in the Purchaser Post-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 Shareholders’ Representative as final, except to the extent that such amounts are affected by any disputed amounts.
(c) If Aspen final 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 such submission. The Independent Actuary shall decide all matters relating to the procedures to be followed for resolution of the disputeconclusive, including those relating to the submission and receipt of information and documents; provided, however, that at the request of either Aspen or the Reinsurer, a meeting shall be held at which the Parties may present their views, that both Aspen and the Reinsurer shall have equal access to the Independent Actuary, and that all information and documents which either Party delivers or makes available to the Independent Actuary shall be furnished to the other Party as well. The review by the Independent Actuary shall be limited solely to the disputed items (and any items affected thereby) and amounts in the True-Up Dispute Notice that remain unresolved. Any determination by the Independent Actuary shall not be outside the range defined by the respective amounts in the Final Closing Statement and the True-Up Dispute Notice, and such determination shall be final and binding upon, and non-appealable by, on the Parties and their respective successors and assigns parties hereto for all purposes of this Agreement, and the Final Consideration set forth in the Purchaser Post-Closing Statement shall be the Final Consideration.
(c) If the Shareholders’ Representative timely provides the Notice of Objection, then Purchaser and the Shareholders’ Representative shall negotiate in good faith for a period of up to thirty (30) days following Purchaser’s receipt of the Notice of Objection in an attempt to resolve any disputed matter set forth in the Notice of Objection, and any resolution by them in writing shall be final, conclusive and binding on the parties hereto, and any Final Consideration agreed upon in writing by Purchaser and Shareholders’ Representative in connection therewith shall be the Final Consideration.
(d) If, within the thirty (30)-day period set forth in Section 2.05(c), Purchaser and the Shareholders’ Representative cannot subject resolve any matter set forth in the Notice of Objection, then Purchaser and the Shareholders’ Representative shall engage an independent, nationally recognized accounting firm acceptable to collateral attack both Purchaser and the Shareholders’ Representative (the “Reviewing Accountant”) to review only the matters in the Notice of Objection that are still disputed by Purchaser and Shareholders’ Representative in order to determine the Post- Closing Consideration Calculation. The Reviewing Accountant shall act in the capacity of an expert and not as an arbitrator. Purchaser and the Shareholders’ Representative will instruct the Reviewing Accountant to, and the Reviewing Accountant will, make a final determination of only such remaining disputed matters. Purchaser and the Shareholders’ Representative may each submit to the Reviewing Accountant one (1) written submission setting forth their respective computations of the amounts set forth in the Notice of Objection (to the extent such amounts remain in dispute) and specific information, evidence and support for their respective positions as to all items in dispute. Neither Purchaser nor the Shareholders’ Representative shall have or conduct any communication, either written or oral, with the Reviewing Accountant with respect to matters contemplated by this Agreement without the other party either being present or receiving a concurrent copy of any written communication. Purchaser and the Shareholders’ Representative will also instruct the Reviewing Accountant to, and the Reviewing Accountant will, make its determination based solely on the terms of this Agreement, the Accounting Principles and written submissions by Purchaser and the Shareholders’ Representative that are provided in accordance with this Agreement (i.e., not on the basis of an independent review). Neither Purchaser nor the Shareholders’ Representative shall disclose to the Reviewing Accountant, and the Reviewing Accountant shall not consider for any reason purpose, any settlement discussions or settlement offer made by Purchaser or the Shareholders’ Representative with respect to any objection under this Section 2.05, unless otherwise agreed in writing by Purchaser and the Shareholders’ Representative. The Reviewing Accountant shall promptly (and in any event within thirty (30) days following its engagement) determine the resolution of such remaining disputed matters, which resolution shall not be outside of the range set forth by Purchaser in the Purchaser Post-Closing Statement and the Shareholders’ Representative in the Notice of Objection. Such determination shall be final and binding on the parties hereto, absent fraud or manifest error error, and the Reviewing Accountant shall provide Purchaser and the Shareholders’ Representative with a calculation of the Final Consideration, Net Working Capital, Company Cash and Outstanding Indebtedness, as applicable, in accordance with such determination, and such determination of Final Consideration as set forth therein shall be the Final Consideration.
(e) If the Final Consideration is less than the Closing Consideration as set forth in the Closing Statement (such difference, the “Final Consideration Shortfall”), Purchaser and Shareholders’ Representative shall prepare, execute and deliver to the Escrow Agent a joint written instruction instructing the Escrow Agent to pay the Final Consideration Shortfall (or, if less, the full amount of the Adjustment Escrow Account) to Purchaser and to release the remainder, if any, of the Adjustment Escrow Account to the Company Equityholders (or, in the case of amounts to be paid to the Optionholders, to the Company’s payroll account for distribution to the Optionholders) in accordance with their respective Escrow Percentage. In no case will Purchaser be entitled to receive pursuant to this Section 2.05 an aggregate amount greater than the full amount of the Adjustment Escrow Amount.
(f) If the Final Consideration is equal to the Closing Consideration as set forth in the Closing Statement, Purchaser and Shareholders’ Representative shall prepare, execute and deliver to the Escrow Agent a joint written instruction instructing the Escrow Agent to release the full amount of the Adjustment Escrow Account to the Company Equityholders (or, in the case of amounts to be paid to the Optionholders, to the Company’s payroll account for distribution to the Optionholders) in accordance with their respective Escrow Percentage.
(g) If the Final Consideration is greater than the Closing Consideration as set forth in the Closing Statement (such difference, the “Final Consideration Surplus”), then (i) Purchaser and Shareholders’ Representative shall prepare, execute and deliver to the Escrow Agent a joint written instruction instructing the Escrow Agent to release the full amount of the Adjustment Escrow Account to the Company Equityholders, in accordance with their respective Escrow Percentage and (ii) Purchaser shall promptly pay or fraud. issue to the Company Equityholders (or, in the case of amounts to be paid to the Optionholders, to the Company’s payroll account for distribution to the Optionholders) in accordance with their respective Escrow Percentage, additional Purchaser Ordinary Shares valued at $10 per share for such purpose with a value equal in total to the aggregate Final Consideration Surplus; provided, that in no case will Purchaser be required to issue additional Purchaser Ordinary Shares pursuant to this Section 2.05 with an aggregate value of greater than the Adjustment Escrow Amount.
(h) The procedures set forth in this Section 2.05 for resolving any dispute over the amounts contemplated to be determined as set forth in this Section 2.05 shall be the sole and exclusive method for resolving any dispute over such amounts, it being understood that the foregoing shall not limit Purchaser’s rights under Article X.
(i) The fees and expenses of the Independent Actuary arising from such arbitration Reviewing Accountant shall be paid 50% by the Parties pro rata based on where the Independent Actuary’s determination each of the New Reinsurance Premium falls in comparison to the amount claimed by ▇▇▇▇▇ in the Final Closing Statement Purchaser and the amount claimed by the Reinsurer in the True-Up Dispute NoticeShareholders’ Representative.
(dj) If the New Reinsurance Premium as finally determined Any payment made pursuant to this Section 3.3 is (i) greater than the Estimated New Reinsurance Premium (such difference, a “Positive Adjustment Amount”), then Aspen 2.05 shall pay be treated as an adjustment to the Reinsurer (or to the applicable Trust Accountspurchase price for all Tax purposes, except to the extent that otherwise required by applicable Law (including, for the Reinsurer’s Posted Collateral is less than the Initial Required Collateral Amount)avoidance of doubt, by wire transfer of immediately available funds with respect to one or more accounts designated in writing by the Reinsurer, the Positive Adjustment Amount within five (5) Business Days following final determination any amounts required to be treated as interest pursuant to Section 483 of the New Reinsurance Premium pursuant to this Section 3.3 Code or (ii) less than the Estimated New Reinsurance Premium (the absolute value of such difference, a “Negative Adjustment Amount”otherwise), then Aspen shall reduce the Funds Withheld Account Balance by the Negative Adjustment Amount.
Appears in 1 contract
Sources: Business Combination Agreement (Magnum Opus Acquisition LTD)
Post-Closing Adjustment. (a) No later than forty-five one hundred and twenty (45120) days following after the Closing Date, Aspen Purchaser shall prepare and deliver to the Reinsurer a detailed statement Sellers’ Representative written notice in the same form as the Closing Cash Payment Statement (the “Final Closing StatementAdjustment Notice”) containing and setting forth Aspen(a) an unaudited balance sheet with respect to the Business (the “Closing Balance Sheet”), prepared as of the Effective Time in accordance with GAAP and on a basis consistent with the Seller Accounting Principles and (b) Purchaser’s good faith calculation of (i) the New Reinsurance Premium Closing Cash (including the New Reinsurance Premium Accrued Interest“Final Closing Cash”), the Roll-forward Amount and the ULAE Reimbursement Amount) and Closing Indebtedness (ii) the Initial Required Collateral Amount“Final Closing Indebtedness”), in each caseClosing Transaction Expenses (“Final Closing Transaction Expenses”), as of the Closing DateNet Working Capital (“Final Closing Net Working Capital”), together with all accountingFinal Closing IBNR Obligations, actuarial and other data and documentation reasonably necessary for the Reinsurer to review Closing Fixed Bonus Obligations (“Final Closing Fixed Bonus Obligations”), Closing PTO Obligations (“Final Closing PTO Obligations”), Closing ▇▇▇▇▇’s proposed final calculations ▇▇▇▇▇▇ Retention Obligations (“Final Closing ▇▇▇▇▇▇▇▇▇▇▇ Retention Obligations”) and Closing ▇▇▇▇▇▇ Retention Obligations (“Final Closing ▇▇▇▇▇▇ Retention Obligations”), in each case (y) related to the Seller Parties, the Assets and/or the Business, and (z) based on the Closing Balance Sheet and reflecting the exclusion of such the Retained Assets and Retained Liabilities, and (ii) based on the foregoing amounts, the amount of any payments required pursuant to Section 1.7(g) or Section 1.7(h) and calculated in accordance with Section 1.7(f) (collectively, the “Adjustment Amount”). The Final Closing Net Working Capital calculation shall be prepared in accordance with the Sample Net Working Capital Calculation, and each of the Closing Balance Sheet, the Final Closing Net Working Capital calculation and the Adjustment Amount calculation shall be prepared without giving effect to any purchase accounting adjustments arising from the transactions contemplated by this Agreement.
(b) Upon receipt Within sixty (60) days after delivery of the Final Closing StatementAdjustment Notice, the Reinsurer and its authorized Representatives Sellers’ Representative shall deliver to Purchaser a written response in which the Sellers’ Representative shall either:
(i) agree in writing with Purchaser’s calculation of the Adjustment Amount, in which case such calculation will be given reasonable access to all accounting, actuarial final and other data binding on the parties for purposes of Section 1.7(g) and documentation related to the preparation Section 1.7(h); or
(ii) dispute Purchaser’s calculation of the Final Closing Statement for the purpose of, and Adjustment Amount by delivering 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 Purchaser 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 a “True-Up Dispute Notice”) to Aspen of any objections, specifying setting forth in reasonable detail any contested amounts the basis for each such disputed item and stating that all such disputed items are being disputed in good faith.
(c) If the Sellers’ Representative fails to take either of the foregoing actions within sixty (60) days after delivery of the Adjustment Notice, then the Seller Parties will be deemed to have irrevocably accepted Purchaser’s calculation of the Adjustment Amount, in which case the Adjustment Amount as calculated by Purchaser will be final and binding on the parties for all purposes hereunder.
(d) If the Sellers’ Representative timely delivers a Dispute Notice to Purchaser, then Purchaser and the basis thereforSellers’ Representative will attempt in good faith, which for a period of thirty (30) days following delivery by the Reinsurer may have to the Final Closing Statement. The failure Sellers’ Representative of the Reinsurer Dispute Notice, to deliver such True-Up Dispute Notice within agree on the prescribed time period will constitute the Reinsurer’s acceptance as final of the Final Closing Statement as determined Adjustment Amount. Any written resolution executed by ▇▇▇▇▇▇▇▇▇ and the Sellers’ Representative during such thirty (30) day period as to any disputed items will be final and binding on the parties for purposes of this Agreement. Any amounts If Purchaser and the Sellers’ Representative do not resolve all disputed items by the end of thirty (30) days after the date of delivery of the Dispute Notice, then either Purchaser or the Sellers’ Representative may submit the remaining items in dispute (the True-Up “Disputed Items”) to BDO USA for resolution, or if that firm is unwilling or unable to serve, Purchaser and the Sellers’ Representative will engage another mutually agreeable independent accounting firm of recognized national standing, which firm is not as of the Signing Date or at any time between the Signing Date and the time of such engagement, the regular auditing firm or consulting firm of Purchaser or any of the Seller Parties (the “Independent Accounting Firm”). Purchaser and the Sellers’ Representative shall each have a reasonable opportunity to submit to the Independent Accounting Firm the Adjustment Notice, the Dispute Notice (if one is delivered) shall be deemed and a written statement of their respective views as to be accepted by any Disputed Items, and will further instruct the Reinsurer as final, except Independent Accounting Firm to the extent that such amounts are affected by any disputed amounts.
(c) If Aspen and the Reinsurer are unable to resolve all disagreements render its determination with respect to the Final Closing Statement Disputed Items in a written report that specifies the conclusions of the Independent Accounting Firm as to each such Disputed Item and the resulting Adjustment Amount; provided, however, that the Independent Accounting Firm shall act as an expert and not an arbiter and will render a determination only as to the Disputed Items. Purchaser and the Sellers’ Representative will each use their reasonable best efforts to cause the Independent Accounting Firm to render its determination within thirty (30) days following ▇▇▇▇▇’s receipt after referral of a True-Up Dispute Notice (the “True-up Dispute Cooling-Off Period”), the items and amounts in dispute shall be submitted for review Disputed Items to the Independent Actuary for final determination within forty-five (45) days after such submissionfirm or as soon thereafter as reasonably practicable. The Independent Actuary shall decide all matters relating to the procedures to be followed for resolution Accounting Firm’s determination of the dispute, including those relating to Disputed Items and the submission resulting Adjustment Amount in accordance with this Agreement as set forth in its report will be final and receipt binding on the parties for purposes of information and documentsthis Agreement; provided, however, that at the request of either Aspen or the Reinsurer, Independent Accounting Firm may not assign a meeting shall be held at which the Parties may present their views, that both Aspen and the Reinsurer shall have equal access value to any Disputed Item submitted to the Independent ActuaryAccounting Firm that is greater than the greatest value, or less than the smallest value, claimed for such Disputed Item by Purchaser and that all information the Sellers’ Representative in the Adjustment Notice and documents which either Party delivers or makes available Dispute Notice submitted to the Independent Actuary shall be furnished to the other Party as well. The review by the Independent Actuary shall be limited solely to the disputed items (and any items affected thereby) and amounts in the True-Up Dispute Notice that remain unresolved. Any determination by the Independent Actuary shall not be outside the range defined by the respective amounts in the Final Closing Statement and the True-Up Dispute Notice, and such determination shall be final and binding upon, and non-appealable by, the Parties and their respective successors and assigns for all purposes of this Agreement, and not subject to collateral attack for any reason absent manifest error or fraudAccounting Firm. The fees and expenses of the Independent Actuary arising from such arbitration shall Accounting Firm will be paid by Purchaser and the Seller Parties pro rata based on where in inverse proportion to the relative amounts of the Disputed Items determined to be for the account of Purchaser and the Seller Parties, respectively (such that, for illustrative purposes only, if 25% of the value of the Disputed Items are determined to be for the account of the first party, and 75% of the value of the Disputed Items are determined to be for the account of the second party, the first party will pay 75% of the fees and expenses of the Independent Actuary’s determination Accounting Firm and the second party will pay 25% of the New Reinsurance Premium falls in comparison fees and expenses of the Independent Accounting Firm).
(e) For purposes of complying with this Section 1.7, Purchaser and each Seller Party will furnish to each other, their respective Representatives (including accountants and other advisors) and to the amount claimed by ▇▇▇▇▇ in Independent Accounting Firm such books, records, work papers and other documents and information relating to the Disputed Items as they or the Independent Accounting Firm may reasonably request and are available to that party (or its independent public accountants), and will be afforded the opportunity to discuss such items with the Independent Accounting Firm. Purchaser may require that the Independent Accounting Firm enter into a customary form of confidentiality agreement with respect to the work papers and other documents and information relating to the Business provided to the Independent Accounting Firm pursuant to this Section 1.7. None of the Seller Parties, Purchaser, the Sellers’ Representative or any of their respective Affiliates or Representatives shall have any ex parte communications or meetings with the Independent Accounting Firm regarding the subject matter hereof without the other party’s prior written consent.
(f) The Adjustment Amount shall initially be zero and shall be increased or decreased as follows: (i) if the Final Closing Statement and the amount claimed by the Reinsurer in the True-Up Dispute Notice.
(d) If the New Reinsurance Premium Cash, as finally determined pursuant to this Section 3.3 1.7, is less than the Estimated Closing Cash, then the Adjustment Amount shall be decreased, dollar for dollar, by the absolute value of such shortfall; (iii) if the Final Closing Cash, as finally determined pursuant to this Section 1.7, is greater than the Estimated New Reinsurance Premium Closing Cash, then the Adjustment Amount shall be increased, dollar for dollar, by the amount of such excess; (iii) if the Final Closing Indebtedness, as finally determined pursuant to this Section 1.7, is less than the Estimated Closing Indebtedness, then the Adjustment Amount shall be increased, dollar for dollar, by the absolute value of such shortfall; (iv) if the Final Closing Indebtedness, as finally determined pursuant to this Section 1.7, is greater than the Estimated Closing Indebtedness, then the Adjustment Amount shall be decreased, dollar for dollar, by the amount of such excess; (v) if the Final Closing Transaction Expenses, as finally determined pursuant to this Section 1.7, are less than the Estimated Closing Transaction Expenses, then the Adjustment Amount shall be increased, dollar for dollar, by the absolute value of such shortfall; (vi) if the Final Closing Transaction Expenses, as finally determined pursuant to this Section 1.7, are greater than the Estimated Closing Transaction Expenses, then the Adjustment Amount shall be decreased, dollar for dollar, by the amount of such excess; (vii) if the Final Closing Net Working Capital, as finally determined pursuant to this Section 1.7, is less than an amount equal to ninety percent (90%) of the Target Net Working Capital, then the Adjustment Amount shall be decreased by an amount equal to ten percent (10%) of the Target Working Capital; provided, that the Adjustment Amount shall not be decreased pursuant to this subsection (vii) unless the Final Closing Net Working Capital, as finally determined pursuant to this Section 1.7, is less than an amount equal to ninety percent (90%) of the Target Net Working Capital; provided, further, that in no event shall the Adjustment Amount be decreased pursuant to this subsection (vii) by an amount greater than an amount equal to ten percent (10%) of the Target Net Working Capital; (viii) if the Final Closing Net Working Capital, as finally determined pursuant to this Section 1.7, is greater than an amount equal to one hundred ten percent (110%) of the Target Net Working Capital, then the Adjustment Amount shall be increased by an amount equal to ten percent (10%) of the Target Net Working Capital; provided, that the Adjustment Amount shall not be increased pursuant to this subsection (viii) unless the Final Closing Net Working Capital, as finally determined in accordance with this Section 1.7, is greater than an amount equal to one hundred ten percent (110%) of the Target Net Working Capital; provided, further, that in no event shall the Adjustment Amount be increased pursuant to this subsection (viii) by an amount greater than an amount equal to ten percent (10%) of the Target Net Working Capital; (ix) if the Final Closing IBNR Obligations, as finally determined pursuant to this Section 1.7, are less than the Estimated Closing IBNR Obligations, then the Adjustment Amount shall be increased, dollar for dollar, by the amount of such excess; (x) if the Final Closing IBNR Obligations, as finally determined pursuant to this Section 1.7, are greater than the Estimated Closing IBNR Obligations, then the Adjustment Amount shall be decreased, dollar for dollar, by the amount of such excess; (xi) if the Final Closing Fixed Bonus Obligations, as finally determined pursuant to this Section 1.7, are less than the Estimated Closing Fixed Bonus Obligations, then the Adjustment Amount shall be increased, dollar for dollar, by the amount of such excess; (xii) if the Final Closing Fixed Bonus Obligations, as finally determined pursuant to this Section 1.7, are greater than the Estimated Closing Fixed Bonus Obligations, then the Adjustment Amount shall be decreased, dollar for dollar, by the amount of such excess; (xiii) if the Final Closing PTO Obligations, as finally determined pursuant to this Section 1.7, are less than the Estimated Closing PTO Obligations, then the Adjustment Amount shall be increased, dollar for dollar, by the amount of such excess; (xiv) if the Final Closing PTO Obligations, as finally determined pursuant to this Section 1.7, are greater than the Estimated Closing PTO Obligations, then the Adjustment Amount shall be decreased, dollar for dollar, by the amount of such excess; (xv) if the Final Closing ▇▇▇▇▇▇▇▇▇▇▇ Retention Obligations, as finally determined pursuant to this Section 1.7, are less than the Estimated Closing ▇▇▇▇▇▇▇▇▇▇▇ Retention Obligations, then the Adjustment Amount shall be increased, dollar for dollar, by the amount of such excess; (xvi) if the Final Closing ▇▇▇▇▇▇▇▇▇▇▇ Retention Obligations, as finally determined pursuant to this Section 1.7, are greater than the Estimated Closing ▇▇▇▇▇▇▇▇▇▇▇ Retention Obligations, then the Adjustment Amount shall be decreased, dollar for dollar, by the amount of such excess; (xvii) if the Final Closing ▇▇▇▇▇▇ Retention Obligations, as finally determined pursuant to this Section 1.7, are less than the Estimated Closing ▇▇▇▇▇▇ Retention Obligations, then the Adjustment Amount shall be increased, dollar for dollar, by the amount of such excess; and (xviii) if the Final Closing ▇▇▇▇▇▇ Retention Obligations, as finally determined pursuant to this Section 1.7, are greater than the Estimated Closing ▇▇▇▇▇▇ Retention Obligations, then the Adjustment Amount shall be decreased, dollar for dollar, by the amount of such excess.
(g) If the Adjustment Amount is a negative number pursuant to Section 1.7(f), then Purchaser and the Sellers’ Representative shall, no later than five (5) Business Days after such determination, deliver joint written instructions to the Escrow Agent instructing the Escrow Agent to pay from the Adjustment Escrow Amount then remaining in the Escrow Account (i) to an account designated in writing by Purchaser an amount equal to the lesser of (A) the absolute value of such negative Adjustment Amount and (B) the Adjustment Escrow Amount and (ii) to an account or accounts designated in writing by the Sellers’ Representative the amount, if any, by which the Adjustment Escrow Amount exceeds the absolute value of the negative Adjustment Amount. To the extent that the Adjustment Escrow Amount is less than the absolute value of the negative Adjustment Amount (such differenceamount, a the “Positive Adjustment Excess Purchaser Recovery Amount”), then Aspen shall the Seller Parties shall, jointly and severally, no later than five (5) Business Days after the determination of the Adjustment Amount, pay to Purchaser the Reinsurer (or to the applicable Trust Accounts, to the extent that the Reinsurer’s Posted Collateral is less than the Initial Required Collateral Amount), Excess Purchaser Recovery Amount by wire transfer of immediately available funds to one an account designated in writing by Purchaser.
(h) If the Adjustment Amount is a positive number pursuant to Section 1.7(f) then (i) Purchaser shall, no later than five (5) Business Days after such determination, deliver or more cause to be delivered the amount of such Adjustment Amount by wire transfer of immediately available funds to an account or accounts designated in writing by the ReinsurerSellers’ Representative and (ii) Purchaser and the Sellers’ Representative shall, the Positive Adjustment Amount within no later than five (5) Business Days following final determination after such determination, deliver joint written instructions to the Escrow Agent instructing the Escrow Agent to pay from the Adjustment Escrow Amount to an account or accounts designated in writing by the Sellers’ Representative an amount equal to the Adjustment Escrow Amount.
(i) For the avoidance of doubt, the parties hereto acknowledge and agree that, from and after the Closing, the provisions of this Section 1.7 (including the dispute resolution provisions contemplated in this Section 1.7) and, with respect to enforcement of the New Reinsurance Premium obligation to pay any Adjustment Amount payable in accordance with this Section 1.7, Article 7 shall be the exclusive remedy and forum of the parties with respect to the matters that are or that may be addressed through the purchase price adjustments contemplated in this Section 1.7.
(j) Any payment made pursuant to this Section 3.3 or (ii) less than the Estimated New Reinsurance Premium (the absolute value of such difference, a “Negative Adjustment Amount”), then Aspen shall reduce the Funds Withheld Account Balance 1.7 will be treated by the Negative Adjustment Amountparties for all purposes as an adjustment to the Purchase Price to the extent permitted by applicable Law.
Appears in 1 contract
Sources: Asset Purchase Agreement (Sterling Infrastructure, Inc.)
Post-Closing Adjustment. (a) No As soon as practicable, but in no event later than forty-five (45) 60 days following after the Closing Date, Aspen CFI shall prepare and deliver to the Reinsurer CC a detailed statement in the same form as the Closing Statement (the “Final Post-Closing Statement”) setting forth AspenCFI’s good faith calculation as of the Closing Date of (i) the New Reinsurance Premium (including the New Reinsurance Premium Accrued InterestCC Working Capital, the Roll-forward Amount and the ULAE Reimbursement Amount) and (ii) the Initial Required Collateral AmountCC Closing Date Cash, in each case(iii) CC Closing Unpaid Indebtedness, as of the (iv) CRP Working Capital, (v) CRP Closing DateDate Cash, together with all accounting(vi) CRP Closing Unpaid Indebtedness, actuarial and other data and documentation reasonably necessary for the Reinsurer to review (vii) Closing Consideration, (viii) CC Closing Adjustment, (ix) CRP Closing Adjustment, (x) CC Closing Unit Consideration, (xi) CC Closing Share Consideration, (xii) CC Closing Cash Consideration, (xiii) CCH Closing Unit Consideration, (xiv) FHB LLC Closing Unit Consideration, (xv) FHB LLC Closing Cash Consideration, (xvi) ▇▇▇▇▇’s proposed final calculations of such amounts▇▇▇ Closing Unit Consideration, (xvii) ▇▇▇▇▇▇▇▇ Closing Cash Consideration, (xviii) Closing CFI Common Stock Count, (xix) Closing CFI Series A Preferred Stock Count, (xx) Closing CFI Series B Preferred Stock Count, which shall be in accordance with the Accounting Principles and based upon the amounts reflected on the Disbursement Schedule.
(b) Upon receipt of If CC disagrees with the Final Post-Closing Statement, CC shall promptly, but in no event later than 35 days after receiving the Reinsurer Post-Closing Statement (the “Review Period”) deliver to CFI written notice describing in reasonable detail their dispute by specifying those items or amounts as to which CC disagrees, together with CC’s determination of such disputed items and its authorized Representatives amounts (a “Dispute Notice”). If CC either gives notice that it agrees with the Post-Closing Statement or fails to deliver a Dispute Notice within the Review Period, CFI and CC agree that the Post-Closing Statement shall be deemed to be final with respect to those items that have been agreed upon or for which CFI shall have failed to deliver a Dispute Notice. If CC delivers a Dispute Notice to CFI within the Review Period, CC and CFI will use reasonable good faith efforts to resolve the dispute during the 30-day period commencing on the date CC delivers the Dispute Notice to CFI. If CFI and CC are not able to resolve all disputed items within such 30-day period, then the items in dispute shall be submitted immediately following the expiration of such 30-day period to a mutually acceptable nationally recognized independent accounting firm (the “Accounting Firm”). The Accounting Firm shall be given reasonable access to all accounting, actuarial and other data and documentation related relevant records of NewCo to calculate the amounts set forth on the Post-Closing Statement. If any remaining issues in dispute are submitted to the preparation Accounting Firm for resolution, each of CFI and CC will be afforded an opportunity to present to the Accounting Firm any material relating to the determination of the Final matters in dispute and to discuss such matters with the Accounting Firm. The Accounting Firm shall act as an expert and not as an arbitrator to calculate, based solely on the written submissions of CFI, on the one hand, and CC, on the other, and not by independent investigation, the amounts set forth on the Post-Closing Statement for and shall be instructed that its calculation (A) must be made in accordance with the purpose ofstandards and definitions in this Agreement and the Accounting Principles, and (B) with respect to each item in dispute, must be within the range of values established for such amount as determined by reference to the extent reasonably necessary forvalue assigned to such amount by CC in the Dispute Notice and by CFI in the Post-Closing Statement. The Accounting Firm shall submit such calculation to CC and CFI as soon as practicable, verifying but in any event within 30 days after the remaining issues in dispute are submitted to the Accounting Firm. The determination by the Accounting Firm of the Post-Closing Statement, as set forth in a written notice delivered to CFI and CC by the Accounting Firm in accordance with this Agreement will be binding and conclusive on CFI and CC. For purposes of this Agreement: (i) the “Final Closing Statement; provided, that no independent accountants or independent actuaries of Aspen ” shall be required to make any work papers available to mean 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 actuariesPost-Closing Statement, as applicable. Within forty-five finally determined (45including by modification or adjustment) days of pursuant to this Section 3.4, (ii) “Final CC Working Capital” means the Reinsurer’s receipt of CC Working Capital set forth on the Final Closing Statement, (iii) “Final CC Closing Date Cash” means 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 CC Closing Date Cash set forth on the Final Closing Statement. The failure of , (iv) “Final CC Closing Unpaid Indebtedness” means the Reinsurer to deliver such True-Up Dispute Notice within the prescribed time period will constitute the Reinsurer’s acceptance as final of CC Closing Unpaid Indebtedness set forth on the Final Closing Statement as determined by ▇▇▇▇▇. Any amounts not disputed in the True-Up Dispute Notice Statement, (if one is deliveredv) 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 “Final CRP Working Capital” means 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 such submission. The Independent Actuary shall decide all matters relating to the procedures to be followed for resolution of the dispute, including those relating to the submission and receipt of information and documents; provided, however, that at the request of either Aspen or the Reinsurer, a meeting shall be held at which the Parties may present their views, that both Aspen and the Reinsurer shall have equal access to the Independent Actuary, and that all information and documents which either Party delivers or makes available to the Independent Actuary shall be furnished to the other Party as well. The review by the Independent Actuary shall be limited solely to the disputed items (and any items affected thereby) and amounts in the True-Up Dispute Notice that remain unresolved. Any determination by the Independent Actuary shall not be outside the range defined by the respective amounts in the Final Closing Statement and the True-Up Dispute Notice, and such determination shall be final and binding upon, and non-appealable by, the Parties and their respective successors and assigns for all purposes of this Agreement, and not subject to collateral attack for any reason absent manifest error or fraud. The fees and expenses of the Independent Actuary arising from such arbitration shall be paid by the Parties pro rata based on where the Independent Actuary’s determination of the New Reinsurance Premium falls in comparison to the amount claimed by ▇▇▇▇▇ in the Final Closing Statement and the amount claimed by the Reinsurer in the True-Up Dispute Notice.
(d) If the New Reinsurance Premium as finally determined pursuant to this Section 3.3 is (i) greater than the Estimated New Reinsurance Premium (such difference, a “Positive Adjustment Amount”), then Aspen shall pay to the Reinsurer (or to the applicable Trust Accounts, to the extent that the Reinsurer’s Posted Collateral is less than the Initial Required Collateral Amount), by wire transfer of immediately available funds to one or more accounts designated in writing by the Reinsurer, the Positive Adjustment Amount within five (5) Business Days following final determination of the New Reinsurance Premium pursuant to this Section 3.3 or (ii) less than the Estimated New Reinsurance Premium (the absolute value of such difference, a “Negative Adjustment Amount”), then Aspen shall reduce the Funds Withheld Account Balance by the Negative Adjustment Amount.CRP
Appears in 1 contract
Sources: Contribution and Implementation Agreement (Colony Financial, Inc.)
Post-Closing Adjustment. (a) No As soon as practicable, but in no event later than forty-five ninety (4590) days following the Closing Date, Aspen Buyer shall deliver to the Reinsurer Seller a detailed statement in the same form as calculation of the Closing Statement Working Capital (the “Final "Closing Working Capital Statement”"), the Closing Net Indebtedness (the "Closing Net Indebtedness Statement"), the Franchisee Adjustment Amount (the "Franchisee Adjustment Amount Statement"), the EBITDA Adjustment Amount, to the extent a variance from the Reference EBITDA Adjustment Amount is permitted to be claimed pursuant to the terms of Section 6.13(f) setting (the "EBITDA Adjustment Amount Statement"), and the Capex Adjustment (the "Capex Statement", together with the Closing Working Capital Statement, the Closing Net Indebtedness Statement, the EBITDA Adjustment Amount Statement, if any, and the Franchisee Adjustment Amount Statement, the "Calculation"). The Calculation shall also set forth Aspen’s good faith the amount, if any, by which the calculation of (i) the New Reinsurance Premium (including Purchase Price differs from the New Reinsurance Premium Accrued InterestEstimated Purchase Price. The Calculation shall be set forth in sufficient detail to permit Seller to make any objections it may seek to have. Buyer shall cause a full closing of the financial statements in respect of the Company and its Subsidiaries to occur for the period from July 1, the Roll-forward Amount and the ULAE Reimbursement Amount) and (ii) the Initial Required Collateral Amount, in each case, as of 2002 to the Closing Date, calculated on the basis that the Closing was effective at 11:59 p.m. on the day prior to the Closing Date as if such date were a fiscal year end and such that the unaudited financial statements produced with respect to the period ended on the day prior to the Closing Date are similar in all material respects to the U.K. GAAP Company Financial Statements (the "Closing Date Financial Statements"). Seller shall, and shall cause Diageo and its Affiliates, to provide Buyer with reasonable access to data within its control to the extent necessary in connection with the preparation of the Calculation and the Closing Date Financial Statements. Buyer shall provide the unaudited Closing Date Financial Statements to Seller together with all accounting, actuarial and other data and reasonable back-up documentation reasonably necessary for to evaluate or understand the Reinsurer to review ▇▇▇▇▇’s proposed final calculations Closing Date Financial Statements and the Calculation at the time of such amountsdelivery of the Calculation.
(b) Upon receipt During the period of any review or dispute as provided in this Section 2.5, Buyer and Seller shall, and shall cause each of their Affiliates to: (i) provide each other party and its representatives with reasonable access to its and its Affiliates' relevant books, records and employees (to the extent any of such books, records or employees relate to the Calculation) and (subject, in the case of accountant or auditor work papers, to providing any customary confidentiality, hold harmless or other agreements reasonably requested by the accountant or auditor) relevant work papers of accountants or auditors and permit copies to be made of any of the Final Closing Statement, the Reinsurer foregoing documentation and (ii) cooperate fully with such other party and its authorized Representatives will be given reasonable access to representatives, including the provision on a timely basis of all accounting, actuarial and other data and documentation related to the preparation information relevant for purposes of the Final Closing Statement for Calculation; provided that, without prejudice to any of Buyer's other rights under this Agreement, after the purpose ofsubmission of the Calculation, and to the extent reasonably necessary for, verifying the Final Closing Statement; provided, that no independent accountants or independent actuaries of Aspen Seller shall be required to make any work papers available provide such access and cooperation only to the Reinsurer unless the Reinsurer has signed a customary agreement relating extent relevant to such access items disputed by Seller pursuant to work papers in form and substance reasonably acceptable to such independent accountants or independent actuaries, as applicable. Within forty-five Section 2.5(c).
(45c) days of the Reinsurer’s After receipt of the Final Closing StatementCalculation, Seller shall have sixty (60) days to review the Reinsurer may deliver Calculation. Unless Seller delivers written notice to Buyer on or prior to the sixtieth (60th) day after Buyer's delivery of the “True-Up Dispute Notice”) Calculation stating that Seller has objections to Aspen of any objectionsthe Calculation, specifying Seller shall be deemed to have accepted and agreed to the Calculation. Matters included in reasonable detail any contested amounts and the basis thereforCalculation, which the Reinsurer may have are not objected 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 in writing by ▇▇▇▇▇. Any amounts not disputed in the True-Up Dispute Notice (if one is delivered) Seller, shall be deemed to be accepted by the Reinsurer as Seller ("Resolved Items") and any amounts included within such items shall be deemed to be final, except binding and conclusive. If Seller notifies Buyer in writing of its objections to the extent that such amounts are affected by any disputed amounts.
(c) If Aspen Calculation, Buyer 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”)Seller shall, the items and amounts in dispute shall be submitted for review to the Independent Actuary for final determination within forty-five (45) days (or such longer period as Buyer and Seller may agree in writing) following such notice (the "Resolution Period"), attempt to resolve their differences, and any written resolution by them as to any disputed amounts shall be final, binding and conclusive.
(d) Any amounts remaining in dispute at the conclusion of the Resolution Period ("Unresolved Items") shall be submitted by Buyer and Seller to Deloitte and Touche LLP (such firm being referred to as the "CPA Firm") or, if such firm shall be unable or unwilling to serve in such capacity or if Seller and Buyer shall otherwise mutually agree in writing, such other nationally recognized firm of independent accountants mutually agreed in writing by Seller and Buyer (and, in such case, such firm shall be deemed to be the CPA Firm), within 10 days after the expiration of the Resolution Period or as soon as practicable after Buyer and Seller have engaged the CPA Firm. Seller and Buyer agree to use their commercially reasonable efforts to engage the CPA Firm as promptly as practicable. Each party agrees to execute, if requested by the CPA Firm, an engagement letter with the CPA Firm containing reasonable terms and to provide the CPA Firm such submissionwork papers and other documents and information related to the Unresolved Items as the CPA Firm may reasonably request if available to such party or its Affiliates (or their accountants or auditors). The Independent Actuary shall decide all matters All fees and expenses relating to the procedures work, if any, to be followed for resolution performed by the CPA Firm shall be borne 50% by Buyer and 50% by Seller. The CPA Firm shall act as an arbitrator and not as an expert, to determine, based on the provisions of this Section 2.5, only the dispute, including those relating to the submission and receipt of information and documentsUnresolved Items; provided, however, that at the request of either Aspen or the ReinsurerCPA Firm shall have authority to determine, a meeting shall be held at which the Parties may present their views, that both Aspen and the Reinsurer term "Unresolved Items" as used in this Section 2.5 shall have equal access mean, only the amount(s) of the Calculation and no other matter whatsoever, absent an express written agreement to the Independent Actuarycontrary by Buyer and Seller. Seller and Buyer shall request that the CPA Firm provide its determination of the Unresolved Items within 30 days after the submission of the Unresolved Items to the CPA Firm, and that all information and documents which either Party delivers or makes available to a calculation of the Independent Actuary shall be furnished to Closing Working Capital Statement, the other Party as well. The review by Closing Net Indebtedness Statement, the Independent Actuary shall be limited solely to Capex Statement, the disputed items (and any items affected thereby) and amounts in the True-Up Dispute Notice that remain unresolved. Any determination by the Independent Actuary shall not be outside the range defined by the respective amounts in the Final Closing EBITDA Adjustment Amount Statement and the True-Up Dispute NoticeFranchisee Adjustment Amount Statement, based upon the amount of Resolved Items and such determination shall be final and binding upon, and non-appealable by, the Parties and their respective successors and assigns for all purposes of this Agreement, and not subject to collateral attack for any reason absent manifest error or fraud. The fees and expenses of the Independent Actuary arising from such arbitration shall be paid by the Parties pro rata based on where the Independent Actuary’s CPA Firm's determination of the New Reinsurance Premium falls Unresolved Items, shall be set forth in comparison a written statement delivered to the amount claimed by ▇▇▇▇▇ in the Final Closing Statement Seller and the amount claimed Buyer by the Reinsurer in the True-Up Dispute NoticeCPA Firm and shall be final, binding and conclusive on Buyer and Seller.
(de) If the New Reinsurance Premium as finally determined pursuant to this Section 3.3 is (i) greater than the Estimated New Reinsurance Premium (such difference, a “Positive Adjustment Amount”), then Aspen shall pay to the Reinsurer (or to the applicable Trust Accounts, to the extent that the Reinsurer’s Posted Collateral is less than the Initial Required Collateral Amount), by wire transfer of immediately available funds to one or more accounts designated in writing by the Reinsurer, the Positive Adjustment Amount within Within five (5) Business Days following final either (i) an agreement or deemed agreement by Buyer and Seller as to the Closing Working Capital, the Closing Net Indebtedness, the Capex Adjustment, the EBITDA Adjustment Amount, if any, and the Franchisee Adjustment Amount, or (ii) the CPA Firm's determination of all Unresolved Items, Seller shall pay to Buyer the New Reinsurance Premium amount, if any, by which the Estimated Purchase Price exceeds the final calculation of the Purchase Price, or Buyer shall pay to Seller the amount, if any, by which the final calculation of the Purchase Price exceeds the Estimated Purchase Price (the "Post-Closing Adjustment").
(f) Any payments made pursuant to this Section 3.3 or (ii) less than the Estimated New Reinsurance Premium (the absolute value 2.5 shall be made by wire transfer of such difference, a “Negative Adjustment Amount”), then Aspen shall reduce the Funds Withheld Account Balance immediately available U.S. Dollar funds to an account indicated by the Negative party to receive such funds and shall be accompanied by interest at the Applicable Rate calculated on the basis of a year of 365 days for the actual number of days elapsed, accrued from the Closing Date up to and including the date of payment.
(g) Any payments made in respect of the Post-Closing Adjustment Amountshall be deemed to be adjustments to the Base Purchase Price pursuant to Section 2.2, for all tax purposes.
Appears in 1 contract
Post-Closing Adjustment. (a) No later than forty-five The Base Merger Consideration shall be subject to adjustment as specified in this Section 3.1.
(45b) Within ninety (90) days following the Effective Time, CCC shall cause CCC's Accountant to audit (the "Post-Closing Date, Aspen shall deliver Audit") the books of the ------------------ Company to determine the accuracy of the information relating to the Reinsurer a detailed statement Company's Closing Net Worth and the Company's 1997 Adjusted EBIT as set forth on the Financial Certificates (as defined in Section 7.20) and on the financial certificates of the Other Group Companies. In determining the accuracy of such information reflected on the Financial Certificates in the course of the Post-Closing Audit, CCC's Accountant shall apply the same form accounting methodology used by the Company or the Shareholders, as applicable, in preparing such information; provided that CCC's Accountant shall not be obligated to apply such methodology to the extent inconsistent with GAAP (as modified by Section 2.2(b) above). The Shareholders shall cooperate with CCC and CCC's Accountant after the Closing Statement (Date in furnishing information, documents, evidence and other assistance to CCC's Accountant to facilitate the “Final completion of the Post-Closing Statement”) setting forth Aspen’s good faith calculation Audit within the aforementioned time period. Without limiting the generality of the foregoing, within two weeks after the Closing, the Shareholders shall provide CCC's Accountant with the information and/or documents reasonably requested by them. CCC's Accountant will test the Company's Closing Net Worth, the Group Closing Net Worth, the Company's 1997 Adjusted EBIT and the Group 1997 Adjusted EBIT based upon the Post-Closing Audit and the post-closing audits of the Other Group Companies. In the event that CCC's Accountant determines (i) a different amount than the New Reinsurance Premium Group Closing Net Worth (the "Actual Closing Net Worth") or (ii) a different amount than the Group ------------------------ 1997 Adjusted EBIT (the "Actual 1997 Adjusted EBIT" ), CCC shall promptly ---- ------------------------- deliver a written notice with supporting documentation (the "Financial --------- Adjustment Notice") to the shareholders of the Group Companies, including the New Reinsurance Premium Accrued Interest----------------- Shareholders, setting forth (A) the Roll-forward Amount determination made by CCC's Accountant of the Actual Closing Net Worth and the ULAE Reimbursement AmountActual 1997 Adjusted EBIT, (B) the amount of the cash portion of the Base Merger Consideration that would have been payable at Closing pursuant to Section 2.2(c) had the Actual Closing Net Worth and the Actual 1997 Adjusted EBIT been used instead of the Group Closing Net Worth and the Group 1997 Adjusted EBIT to determine the need for any adjustments to the Base Merger Consideration pursuant to Sections 2.2(c) and 2.2(d), respectively, and (C) the number of shares issued as part of the Base Merger Consideration that would have been issuable at Closing had the Actual Closing Net Worth and the Actual Adjusted EBIT been used to determine the need for any adjustments to the Base Merger Consideration as set forth in (B) above. The differences between the respective amounts set forth in (B) and (C) and the amounts of the cash and the CCC Common Stock components of the Base Merger Consideration paid pursuant to Section 2.2 (a), as adjusted pursuant to Sections 2.2(c) or 2.2(d), is referred to hereafter as the "Merger Consideration -------------------- Adjustment." Any increase in the Base Merger Consideration resulting from such ---------- Merger Consideration Adjustment shall be owed by CCC to the Shareholders. Any decrease in such Base Merger Consideration resulting from such Merger Consideration Adjustment shall be owed by the Shareholders to CCC. If, on or prior to the payment of the Merger Consideration Adjustment, CCC should split or combine the CCC Common Stock, or pay a stock dividend or other stock distribution in CCC Common Stock, or otherwise change the CCC Common Stock into any other securities, or make any other dividend or distribution on the CCC Common Stock (other than normal quarterly dividends, as the same may be adjusted from time to time and in the ordinary course), then the number of shares of CCC Common Stock issuable as part of the Merger Consideration Adjustment will be appropriately adjusted to reflect such split, combination, dividend or other distribution or change. The shares of CCC Common Stock, if any, to be issued in respect of the Merger Consideration Adjustment shall be registered under the 1933 Act and approved for quotation on the Nasdaq National Market.
(c) The shareholders of the Group Companies, including the Shareholders, through the Group Representative, shall have thirty (30) days from the receipt of the Financial Adjustment Notice to notify CCC if they dispute such Financial Adjustment Notice. If CCC has not received notice of any such dispute within such 30-day period, (i) CCC shall be entitled to receive promptly pro rata from the Shareholders (which may, at CCC's sole discretion, be from the Pledged Assets as defined in, and subject to the provisions of, Section 3.2 and/or the Contingent Merger Consideration) any Merger Consideration Adjustment owed to CCC 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 Shareholders shall be entitled 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 receive promptly from CCC any Merger Consideration Adjustment owed 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 applicableShareholders. 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 such submission. The Independent Actuary shall decide all matters relating to the procedures to be followed for resolution of the dispute, including those relating to the submission and receipt of information and documents; providedIf, however, that at the request Shareholders (through the Group Representative) have delivered notice of either Aspen or such a dispute to CCC within such 30-day period, then CCC's Accountant shall select a New Accounting Firm to review the Reinsurerbooks of the Group Companies including, a meeting shall be held at which the Parties may present their viewsSurviving Corporation, that both Aspen the Financial Certificates and the Reinsurer shall have equal access to the Independent Actuary, and that all information and documents which either Party delivers or makes available to the Independent Actuary shall be furnished to the other Party as well. The review by the Independent Actuary shall be limited solely to the disputed items Financial Adjustment Notice (and any items affected therebyrelated information) and amounts in to determine the True-Up Dispute Notice that remain unresolved. Any determination by the Independent Actuary shall not be outside the range defined by the respective amounts in the Final Closing Statement and the True-Up Dispute Noticeamount, and such determination shall be final and binding uponif any, and non-appealable by, the Parties and their respective successors and assigns for all purposes of this Agreement, and not subject to collateral attack for any reason absent manifest error or fraud. The fees and expenses of the Independent Actuary arising from such arbitration shall be paid by the Parties pro rata based on where the Independent Actuary’s determination of the New Reinsurance Premium falls in comparison to the amount claimed by ▇▇▇▇▇ in the Final Closing Statement and the amount claimed by the Reinsurer in the True-Up Dispute Notice.
(d) If the New Reinsurance Premium as finally determined pursuant to this Section 3.3 is (i) greater than the Estimated New Reinsurance Premium (such difference, a “Positive revised Merger Consideration Adjustment Amount”), then Aspen shall pay to the Reinsurer (or to the applicable Trust Accounts, to the extent that the Reinsurer’s Posted Collateral is less than the Initial Required Collateral Amount), by wire transfer of immediately available funds to one or more accounts designated in writing by the Reinsurer, the Positive Adjustment Amount within five (5) Business Days following final determination of the New Reinsurance Premium pursuant to this Section 3.3 or (ii) less than the Estimated New Reinsurance Premium (the absolute value of such difference, a “Negative Adjustment Amount”), then Aspen shall reduce the Funds Withheld Account Balance by the Negative Adjustment Amount."Actual Merger ------------- Consideration Adjustment"
Appears in 1 contract
Sources: Agreement and Plan of Reorganization (Consolidation Capital Corp)
Post-Closing Adjustment. The Merger Consideration that would otherwise be payable in connection with the Merger will be subject to reduction as follows:
(a) No As soon as practicable, but in no event later than forty-five (45) 60 days following the Closing Date, Aspen the Parent shall deliver to the Reinsurer a detailed statement Shareholder Representatives (as defined in the same form as the Closing Statement (the “Final Closing Statement”Section 1.13 hereof) setting forth Aspen’s good faith calculation an audited balance sheet 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, LCI as of the close of business on the Closing DateDate (the "Closing Balance Sheet") accompanied by a report from the Parent's independent certified public accountants. The Closing Balance Sheet will be prepared in conformity with U.S. generally accepted accounting principles ("GAAP") applied on a basis consistent with the Audited Financial Statements and the Latest Balance Sheet (as such terms are defined in Section 3.7 hereof), together including without limitation the same principles and methodologies with all accounting, actuarial respect to allowances and other data reserves as applied in connection with the Audited Financial Statements and documentation reasonably necessary for the Reinsurer to review ▇▇▇▇▇’s proposed final calculations of such amountsLatest Balance Sheet.
(b) Upon After receipt of the Final Closing StatementBalance Sheet, the Reinsurer Shareholder Representatives shall have 15 days to review it and its authorized Representatives will be given reasonable shall have full access to all accounting, actuarial relevant books and other data records and documentation related to employees of LCI and the preparation of the Final Closing Statement for the purpose of, and Parent's accountants 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 complete their review of the Closing Balance Sheet, including the accountant's work papers available used in preparation thereof. Unless the Shareholder Representatives deliver written notice to the Reinsurer unless Parent on or prior to 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 15th day after receipt of the Final Closing Statement, the Reinsurer may deliver written notice (the “True-Up Dispute Notice”) to Aspen of any objections, Balance Sheet specifying in reasonable detail any contested amounts all disputed items and the basis therefortherefore, which the Reinsurer may parties shall be deemed to have accepted and agreed to the Closing Balance Sheet. If such Shareholder Representatives so notify the Parent of an objection to the Closing Balance Sheet, the parties shall, within 30 days following the date of such notice (the "Resolution Period"), attempt to resolve their differences, and any resolution by them as to any disputed amount shall be final, binding, conclusive and nonappealable, provided that, unless otherwise specifically agreed to by the parties, no agreement by the parties hereto as 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 Balance Sheet (as final of the Final Closing Statement as determined by ▇▇▇▇▇. Any amounts not disputed defined in the True-Up Dispute Notice (if one is deliveredSection 1.6(c) hereof) shall be deemed to be accepted by the Reinsurer as final, except to the extent that such amounts are affected by prevent either party from making any disputed amountsclaims under Article 8 hereof.
(c) If Aspen and at the Reinsurer are unable to resolve conclusion of the Resolution Period such parties have not reached an agreement on the objections, all disagreements with respect amounts remaining in dispute may, at the election of either party, be submitted to the Final Closing Statement within thirty (30) days following ▇▇▇▇▇’s receipt Boston, Massachusetts or Minneapolis, Minnesota office of a True-Up Dispute Notice "Big Five" accounting firm or another nationally recognized accounting firm not otherwise engaged by either party (the “True-up Dispute Cooling-Off Period”"Neutral Auditor"), and such parties agree to execute, if requested by the items Neutral Auditor, a reasonable engagement letter. One-half of the fees and amounts in dispute shall be submitted for review to the Independent Actuary for final determination within forty-five (45) days after such submission. The Independent Actuary shall decide all matters expenses relating to the procedures work, if any, to be followed for resolution of performed by the dispute, including those relating to the submission and receipt of information and documents; provided, however, that at the request of either Aspen or the Reinsurer, a meeting Neutral Auditor shall be held at which borne by the Parties may present their viewsLCI Shareholders, that both Aspen on the one hand, and the Reinsurer remaining half by the Parent, on the other hand, unless the Neutral Auditor finds one party acted in bad faith, in which case such party shall have equal access to pay all such fees and expenses. Except as provided in the Independent Actuarypreceding sentence, all other costs and that all information and documents which either Party delivers or makes available to expenses incurred by the Independent Actuary parties in connection with resolving any dispute hereunder before the Neutral Auditor shall be furnished to borne by the other Party as wellparty incurring such cost and expense. The review Neutral Auditor shall act as an arbitrator to determine, based solely on the presentations by the Independent Actuary shall be limited solely to the disputed items (parties and any items affected thereby) and amounts not by independent review, only those issues still in the True-Up Dispute Notice that remain unresolveddispute. Any determination by the Independent Actuary shall not be outside the range defined by the respective amounts in the Final Closing Statement and the True-Up Dispute Notice, and such The Neutral Auditor's determination shall be final and binding upon, and non-appealable by, the Parties and their respective successors and assigns for all purposes made within 30 days of this Agreement, and not subject to collateral attack for any reason absent manifest error or fraud. The fees and expenses of the Independent Actuary arising from such arbitration its engagement (which engagement shall be paid made no later than five days after an election by either party to submit the Parties pro rata based on where objections to the Independent Actuary’s Neutral Auditor) or as soon thereafter as possible, shall be set forth in a written statement and shall be final, binding, conclusive and nonappealable, provided that neither the Neutral Auditor's determination of the New Reinsurance Premium falls in comparison to the amount claimed by ▇▇▇▇▇ in the Final Closing Statement and the amount claimed by the Reinsurer in the True-Up Dispute Notice.
(d) If the New Reinsurance Premium as finally determined pursuant to this Section 3.3 is (i) greater than the Estimated New Reinsurance Premium (such difference, a “Positive Adjustment Amount”), then Aspen shall pay to the Reinsurer (or to the applicable Trust Accounts, to the extent that the Reinsurer’s Posted Collateral is less than the Initial Required Collateral Amount), by wire transfer of immediately available funds to one or more accounts designated in writing by the Reinsurer, the Positive Adjustment Amount within five (5) Business Days following final determination of the New Reinsurance Premium pursuant to this Section 3.3 or (ii) less than the Estimated New Reinsurance Premium (the absolute value of such difference, a “Negative Adjustment Amount”), then Aspen shall reduce the Funds Withheld Account Balance by the Negative Adjustment Amount.Closing
Appears in 1 contract
Post-Closing Adjustment. Concurrently with the delivery of the Estimated Closing Report, the Company shall deliver such documentation and work papers as the Company used to prepare the calculations set forth in the Estimated Closing Report. In the event the Parent disputes the actual sum of the Accounts Receivable Amount plus the Closing RM/WIP/FG Amount plus the Cash Amount plus the Prepaid Assets Amount and minus the Liabilities Amount as of the Effective Date (athe “Actual Working Capital Amount”) No later than forty-five as shown on the Estimated Closing Report, the Parent shall, within sixty (4560) days following after the Closing, advise the Stockholder Representative in writing of any objections the Parent may have with respect to the Estimated Closing DateReport (any such objection shall (i) be set forth in reasonable detail, Aspen shall (ii) include supporting calculations and documentation (if necessary) and (iii) propose an adjustment to the Estimated Working Capital Amount) (a “WC Objection”). In the event the Parent fails to deliver to the Reinsurer Stockholder Representative a detailed statement WC Objection within such sixty (60) day period, the Parent shall be deemed to have accepted and consented to the calculations and determinations made in the same form as Estimated Closing Report and the calculation of the Estimated Working Capital Amount contained in the Estimated Closing Statement Report shall be deemed to be final (the “Final Closing StatementWorking Capital Amount”). In the event the Parent delivers a WC Objection within sixty (60) days after the Closing, the Stockholder Representative and the Parent shall utilize commercially reasonable efforts to try to resolve the objections set forth in the WC Objection (the “Disputed Items”) setting forth Aspenwithin sixty (60) days of the Stockholder Representative’s good faith calculation receipt of a WC Objection. If the parties are unable to resolve the Parent’s objections within that period, either party may refer the Disputed Items to the Boston office of Ernst & Young or, if such firm is unwilling or unable to serve, the parties shall engage the Boston office of another internationally known, mutually acceptable accounting firm (the “Arbiter”) to determine how the Disputed Items should be resolved. By execution of this Agreement, each of the Parent and the Company hereby represents and warrants to the other that Ernst & Young has not performed any services for such party at any time during the five (5) year period immediately preceding the date hereof. The Arbiter shall determine (i) the New Reinsurance Premium (including Actual Working Capital Amount based solely upon the New Reinsurance Premium Accrued Interest, the Roll-forward Amount provisions of this Agreement and the ULAE Reimbursement Amount) presentations by the parties and their respective representatives, and not by independent review, and (ii) the Initial Required Collateral Amountappropriate amount, in each caseif any, by which the Estimated Working Capital Amount should be adjusted as a result of the manner in which the Company calculated the Disputed Items in preparing the Estimated Closing DateReport. In resolving any Disputed Item, together the Arbiter (i) shall limit its review to matters specifically set forth in the WC Objection, (ii) shall further limit its review to whether the calculations are mathematically accurate and have been prepared in accordance with all accounting, actuarial the provisions of this Agreement and other data and documentation reasonably necessary (iii) shall not assign a value to any item greater than the greatest value for such item claimed by a party hereto or less than the Reinsurer to review ▇▇▇▇▇’s proposed final calculations of smallest value for such amounts.
(b) Upon receipt item claimed by a party hereto. The determinations of the Final Closing StatementArbiter shall be final, conclusive and binding (also, 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 PeriodWorking Capital Amount”), the items and amounts in dispute shall be submitted for review to the Independent Actuary for final determination within forty-five (45) days after such submission. The Independent Actuary shall decide all matters relating to the procedures to be followed for resolution of the dispute, including those relating to the submission and receipt of information and documents; provided, however, that at the request of either Aspen or the Reinsurer, a meeting shall be held at which the Parties may present their views, that both Aspen and the Reinsurer shall have equal access to the Independent Actuary, and that all information and documents which either Party delivers or makes available to the Independent Actuary shall be furnished to the other Party as well. The review by the Independent Actuary shall be limited solely to the disputed items (and any items affected thereby) and amounts in the True-Up Dispute Notice that remain unresolved. Any determination by the Independent Actuary shall not be outside the range defined by the respective amounts in the Final Closing Statement and the True-Up Dispute Notice, and such determination shall be final and binding upon, and non-appealable by, the Parties and their respective successors and assigns for all purposes of this Agreement, and not subject to collateral attack for any reason absent manifest error or fraud. The fees and expenses of the Independent Actuary arising from such arbitration Arbiter shall be paid by shared equally between the Parties pro rata based Company Stockholders and Company Optionholders, on where the Independent Actuary’s determination one hand, the Parent on the other hand, with the Company Stockholders’ and Company Optionholders’ portion of such expenses being payable from the WC/Indemnity Escrow Amount pursuant to the terms of the New Reinsurance Premium falls in comparison to Escrow Agreement. On the amount claimed by ▇▇▇▇▇ in fifteenth day following the date on which the Final Closing Statement and the amount claimed by the Reinsurer in the True-Up Dispute Notice.
(d) If the New Reinsurance Premium as finally determined pursuant to this Section 3.3 Working Capital Amount is determined, (i) in the event that the Final Working Capital Amount is greater than the Estimated New Reinsurance Premium (such differenceWorking Capital Amount, a “Positive Adjustment Amount”), then Aspen the Parent shall pay deliver to the Reinsurer (or Company Stockholders and the Company Optionholders their Pro Rata Portion of the amount equal to the applicable Trust Accounts, to difference between (y) the extent Final Actual Working Capital Amount and (z) the Estimated Working Capital Amount and (ii) in the event that the Reinsurer’s Posted Collateral Final Working Capital Amount is less than the Initial Required Collateral Estimated Working Capital Amount), by wire transfer of immediately available funds to one or more accounts designated in writing by the Reinsurer, the Positive Adjustment Parent shall be entitled to receive from the WC/Indemnity Escrow Amount within five (5) Business Days following final determination pursuant to the terms of the New Reinsurance Premium pursuant Escrow Agreement an amount equal to this Section 3.3 or the difference between (iiy) less than the Estimated New Reinsurance Premium Working Capital Amount and (z) the absolute value of such difference, a “Negative Adjustment Amount”), then Aspen shall reduce the Funds Withheld Account Balance by the Negative Adjustment Final Actual Working Capital Amount.
Appears in 1 contract
Sources: Merger Agreement (Bel Fuse Inc /Nj)
Post-Closing Adjustment. (a) No later than forty-five (45) Promptly, but in any event within 60 days following after the Closing Date, Aspen the Buyer shall (X) prepare and deliver to the Reinsurer Sellers’ Representative a detailed statement in balance sheet of the same form as the Closing Statement Company (the “Final Closing StatementBalance Sheet”) setting forth Aspen(prepared in accordance with Exhibit A and the Accounting Principles, provided that in the event of a conflict between Exhibit A and the Accounting Principles, Exhibit A shall prevail), which will reflect in reasonable detail the Buyer’s good faith calculation determination of the Final Net Purchase Price and (i) the New Reinsurance Premium unpaid Company Transaction Expenses (including which shall be included as a liability of the New Reinsurance Premium Accrued InterestCompany on the Closing Balance Sheet), the Roll-forward Amount and the ULAE Reimbursement Amount) and (ii) the Initial Required Collateral AmountWorking Capital Deficiency, if any, (iii) the Working Capital Surplus, if any, (iv) the Indebtedness of the Company, and (v) the Closing Cash, in each case, case as of the Adjustment Time, and (Y) deliver to the Sellers’ Representative the Closing DateBalance Sheet, together with all accountinga certificate of the Buyer executed on its behalf by its Chief Financial Officer confirming that the Closing Balance Sheet was properly prepared in good faith and in accordance with Exhibit A and the Accounting Principles, actuarial provided that in the event of a conflict between Exhibit A and other data the Accounting Principles, Exhibit A shall prevail. For the avoidance of doubt, the provisions of Exhibit A shall be interpreted so as to avoid double counting (whether positive or negative), of any item to be included in the Closing Balance Sheet, including Working Capital, Company Transaction Expenses, Closing Cash and documentation reasonably necessary for the Reinsurer to review ▇▇▇▇▇’s proposed final calculations of such amountsIndebtedness.
(b) Upon If the Sellers’ Representative in good faith disagrees with the Buyer’s determination of the Final Net Purchase Price, the Company Transaction Expenses, Working Capital Deficiency, Working Capital Surplus, Indebtedness and/or Closing Cash in each case as reflected on the Closing Balance Sheet, the Sellers’ Representative may, within 30 days after receipt of the Final Closing StatementBalance Sheet, 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 deliver 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 NoticeNotice of Disagreement”) to Aspen the Buyer setting forth each item 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 dispute (each an “Item 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 PeriodDispute”), the items reasonable basis for such dispute and amounts in dispute the Sellers’ Representative’s calculation of such Item of Dispute. If the Buyer does not receive a Notice of Disagreement within 30 days after delivery by the Buyer of the Closing Balance Sheet, the Closing Balance Sheet shall be submitted for review conclusive and binding upon each of the Parties. If the Buyer receives a Notice of Disagreement from the Sellers’ Representative within 30 days after delivery by the Buyer of the Closing Balance Sheet, the Buyer and the Sellers’ Representative shall attempt in good faith to resolve each Item of Dispute, and, if any Item of Dispute is so resolved, the Closing Balance Sheet shall be modified to the Independent Actuary for extent necessary to reflect such resolution. During the period between the Buyer’s delivery of the Closing Balance Sheet pursuant to Section 2.6(a) and the final determination within forty-five of the same pursuant to Section 2.6(b), the Buyer shall provide the Sellers’ Representative and its representatives with reasonable access to the books, records, personnel and representatives of the Company, and such other information related to the Company as the Sellers’ Representative or its representatives may reasonably request, so as to enable the Sellers’ Representative and its representatives to analyze the Closing Balance Sheet and the underlying calculations and documents related thereto. If any Item of Dispute remains unresolved as of the 30th day after timely delivery by the Seller of the Notice of Disagreement, the Buyer and the Sellers’ Representative shall jointly retain an impartial, nationally recognized firm of chartered professional accountants agreeable to both the Buyer and Sellers’ Representative (45the “Independent Accounting Firm”) to resolve such remaining disagreement, it being understood that any item not included as an Item of Dispute on the Notice of Disagreement shall be conclusive and binding upon each of the Parties as set forth on the Closing Balance Sheet. The Buyer and the Sellers’ Representative shall request that the Independent Accounting Firm render a determination as to each unresolved Item of Dispute as soon as practicable after its retention and in no event greater than 30 days after the engagement of the Independent Accounting Firm, and each of the Buyer, the Sellers’ Representative and each of their respective agents and representatives shall cooperate with the Independent Accounting Firm, and shall provide the Independent Accounting Firm with reasonable access to their respective books, records, personnel and representatives and such submissionother information as the Independent Accounting Firm may reasonably request, so as to enable it to make such determination as quickly and accurately as practicable. The Independent Actuary Accounting Firm shall decide all matters relating consider only those Items of Dispute and amounts related thereto that were set forth in the Closing Balance Sheet and the Notice of Disagreement and that remain unresolved by the Buyer and the Sellers’ Representative, and in resolving any Item of Dispute, the Independent Accounting Firm may not assign a value to any item greater than the procedures to be followed greatest value for resolution of such item claimed by either Party nor less than the dispute, including those relating to the submission and receipt of information and documents; provided, however, that at the request of smallest value for such item claimed by either Aspen or the Reinsurer, a meeting Party. The Independent Accounting Firm’s determination(s) shall be held at which based upon the Parties may present their viewsdefinitions of Company Transaction Expenses, that both Aspen Working Capital Deficiency, Working Capital Surplus, Indebtedness and Closing Cash (as applicable) included herein and in accordance with Exhibit A and the Reinsurer Accounting Principles (provided that in the event of a conflict between Exhibit A and the Accounting Principles, Exhibit A shall have equal access to the Independent Actuary, and that all information and documents which either Party delivers or makes available to the Independent Actuary shall be furnished to the other Party as wellprevail). The review by the Independent Actuary shall be limited solely to the disputed items (and any items affected thereby) and amounts in the True-Up Dispute Notice that remain unresolved. Any determination by the Independent Actuary shall not be outside the range defined by the respective amounts in the Final Closing Statement and the True-Up Dispute Notice, and such determination shall be final and binding upon, and non-appealable by, the Parties and their respective successors and assigns for all purposes of this Agreement, and not subject to collateral attack for any reason absent manifest error or fraud. The fees and expenses of the Independent Actuary arising from such arbitration shall be paid by the Parties pro rata based on where the Independent ActuaryAccounting Firm’s determination of each Item of Dispute submitted to it shall be in writing, shall conform with this Section 2.6 and, absent manifest error, shall be conclusive and binding upon each of the New Reinsurance Premium falls in comparison Parties, and the Closing Balance Sheet shall be modified to the extent necessary to reflect such determination(s). The Independent Accounting Firm shall allocate its fees, costs and expenses between the Buyer on the one hand, and the Sellers on the other hand, based upon the percentage which the portion of the contested amount not awarded to each such Person bears to the amount claimed actually contested by ▇▇▇▇▇ such Person. The Company Transaction Expenses, Working Capital Deficiency, Working Capital Surplus, Indebtedness and Closing Cash, in each case as of the Final Closing Statement Adjustment Time and the amount claimed by the Reinsurer in the True-Up Dispute Notice.
(d) If the New Reinsurance Premium as finally determined pursuant to this Section 3.3 is (i) greater than 2.6, are referred to herein as the Estimated New Reinsurance Premium (such difference, a “Positive Adjustment Amount”), then Aspen shall pay to the Reinsurer (or to the applicable Trust Accounts, to the extent that the Reinsurer’s Posted Collateral is less than the Initial Required Collateral Amount), by wire transfer of immediately available funds to one or more accounts designated in writing by the Reinsurer, the Positive Adjustment Amount within five (5) Business Days following final determination of the New Reinsurance Premium pursuant to this Section 3.3 or (ii) less than the Estimated New Reinsurance Premium (the absolute value of such difference, a Final Company Transaction Expenses,” “Negative Adjustment Amount”), then Aspen shall reduce the Funds Withheld Account Balance by the Negative Adjustment AmountFinal Working Capital Deficiency,” “Final Working Capital Surplus,” “Final Indebtedness,” and “Final Closing Cash,” respectively.
Appears in 1 contract
Post-Closing Adjustment. (a) No later than fortyThe “Post-five Closing Adjustment” may be either a positive or negative amount, and shall be equal to (45a) 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 Working Capital Adjustment Amount set forth in the New Reinsurance Premium Accrued InterestFinal Closing Statement, the Roll-forward Amount and the ULAE Reimbursement Amount) and minus (ii) the Initial Required Collateral AmountWorking Capital Adjustment Amount set forth in the Estimated Closing Statement, plus (b) (i) the Closing Indebtedness Amount set forth in each casethe Estimated Closing Statement, minus (ii) the Closing Indebtedness Amount set forth in the Final Closing Statement, plus (c) (i) the Closing Cash Amount set forth in the Final Closing Statement, minus (ii) the Closing Cash Amount set forth in the Estimated Closing Statement, plus (d) (i) the Closing Transaction Expense Amount set forth in the Estimated Closing Statement, minus (ii) the Closing Transaction Expense Amount set forth in the Final Closing Statement. The Closing Purchase Price, as of adjusted by the Post-Closing DateAdjustment, together with all accounting, actuarial and other data and documentation reasonably necessary for shall be the Reinsurer to review ▇▇▇▇▇’s proposed final calculations of such amounts“Final Purchase Price.”
(b) Upon receipt If the Post-Closing Adjustment is a positive amount, then (i) Purchaser shall pay, or cause to be paid, in cash by wire transfer of immediately available funds to Seller or its designee in the amount of the Post-Closing Adjustment within five (5) Business Days after the determination of the Final Closing Statement to an account designated in writing by Seller within three (3) Business Days after the determination of the Final Closing Statement, and (ii) Purchaser and Seller shall deliver joint written instructions, instructing the Reinsurer and Escrow Agent to release the amounts from the Adjustment Escrow Fund to Seller or its authorized Representatives will be given reasonable access to all accounting, actuarial and other data and documentation related to designee within five (5) Business Days of the preparation final determination of the Final Closing Statement for Statement.
(c) If the purpose ofPost-Closing Adjustment is a negative amount, then Purchaser and Seller shall deliver joint written instructions, instructing the Escrow Agent to pay to Purchaser an amount equal to such shortfall from the Adjustment Escrow Fund, and to release the extent reasonably necessary forremainder, verifying if any, of the amounts from the Adjustment Escrow Fund to Seller, each within five (5) Business Days of the determination of the Final Closing Statement; provided, that no independent accountants or independent actuaries if the aggregate amount of Aspen such shortfall exceeds the Adjustment Escrow Fund, then at Purchaser’s sole discretion, either (x) Purchaser and Seller shall be required deliver joint written instructions, instructing the Escrow Agent to make any work papers available pay such shortfall amount to Purchaser from 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 such submission. The Independent Actuary shall decide all matters relating to the procedures to be followed for resolution of the dispute, including those relating to the submission and receipt of information and documentsIndemnification Escrow Fund; provided, however, that at any such distribution from the request Indemnification Escrow Fund shall not relieve the Seller of either Aspen or its obligation to pay the Reinsurer, a meeting shall be held at which amount due to Purchaser by replenishing the Parties may present their views, that both Aspen and the Reinsurer shall have equal access to the Independent Actuary, and that all information and documents which either Party delivers or makes available to the Independent Actuary shall be furnished to the other Party as well. The review by the Independent Actuary shall be limited solely to the disputed items (and any items affected thereby) and amounts Indemnification Escrow Fund in the True-Up Dispute Notice that remain unresolved. Any determination by the Independent Actuary amount of such shortfall or (y) Seller shall not pay, or cause to be outside the range defined by the respective amounts in the Final Closing Statement and the True-Up Dispute Noticepaid, and such determination shall be final and binding upon, and non-appealable by, the Parties and their respective successors and assigns for all purposes of this Agreement, and not subject to collateral attack for any reason absent manifest error or fraud. The fees and expenses of the Independent Actuary arising from such arbitration shall be paid by the Parties pro rata based on where the Independent Actuary’s determination of the New Reinsurance Premium falls in comparison to the amount claimed by ▇▇▇▇▇ in the Final Closing Statement and the amount claimed by the Reinsurer in the True-Up Dispute Notice.
within five (d5) If the New Reinsurance Premium as finally determined pursuant to this Section 3.3 is (i) greater than the Estimated New Reinsurance Premium (such difference, a “Positive Adjustment Amount”), then Aspen shall pay to the Reinsurer (or to the applicable Trust AccountsBusiness Days, to the extent that the Reinsurer’s Posted Collateral is less than the Initial Required Collateral Amount)Purchaser, by wire transfer of immediately available funds to one or more accounts an account designated in writing by Purchaser within three (3) Business Days after the Reinsurerdetermination of the Final Closing Statement, an aggregate amount equal to such shortfall.
(d) If the Positive Post-Closing Adjustment Amount is zero, then Purchaser and Seller shall deliver joint written instructions, instructing the Escrow Agent to release the amounts from the Adjustment Escrow Fund to Seller within five (5) Business Days following of the final determination of the New Reinsurance Premium Final Closing Statement.
(e) The parties hereto intend that any such payment pursuant to this Section 3.3 or 2.7 be treated for U.S. federal and applicable state and local income tax purposes as an adjustment to the Purchase Price and shall act consistently therewith for all applicable tax purposes (iiincluding filing Tax Returns) less than the Estimated New Reinsurance Premium (the absolute value of such difference, unless otherwise required by a “Negative Adjustment Amount”determination” (within the meaning of Section 1313(a) of the Code), then Aspen shall reduce the Funds Withheld Account Balance by the Negative Adjustment Amount.
Appears in 1 contract
Post-Closing Adjustment. (a) No later than forty-five (45) days following The Seller will complete by December 30, 1999 a physical count of the Inventory which Buyer will have the opportunity to observe and during which Buyer or Buyer's accountant will conduct test counts, and will agree on the Closing DateDate Working Capital Amount prior to Closing. This agreement will be evidenced by a letter substantially in the form of Exhibit G. In connection therewith, Aspen shall Seller will deliver to the Reinsurer Buyer a detailed statement in the same form as the Closing Statement (the “Final Closing Statement”) setting forth Aspen’s good faith calculation list of (i) the New Reinsurance Premium (including the New Reinsurance Premium Accrued InterestInventory, the Roll-forward Amount and the ULAE Reimbursement Amount) and (ii) the Initial Required Collateral AmountAccounts Receivable at December 30, in each case1999 and (iii) the Accounts Payable at December 30, 1999, certified by Seller as a true and correct listing of the Inventory, Accounts Receivable and Accounts Payable on Seller's books and records. After the Closing Date, together with all accounting, actuarial Buyer and other data and documentation reasonably necessary for the Reinsurer its accountants will be permitted to review ▇▇▇▇▇’s proposed final calculations of such amounts.
(b) Upon receipt conduct an audit 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 Date Working Capital Amount for the purpose of, and of determining whether any adjustment is necessary to the extent reasonably necessary forClosing Date Working Capital Amount, verifying the Final Closing Statement; providedin accordance with generally accepted accounting principles and consistent with Seller's past practices. As promptly as possible, that no independent accountants or independent actuaries of Aspen shall be required to make but in 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 actuariesevent, 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 the Closing Date, the Buyer will deliver to the Seller a schedule (the "Adjustment Schedule") setting forth its calculation of the Working Capital Amount and the difference between (i) the Closing Date Working Capital Amount and (ii) the Working Capital Amount as calculated by Buyer (such submissiondifference the "Working Capital Adjustment"), together with an explanation in reasonable detail of the reasons for and the amount of Buyer's proposed Working Capital adjustment. The Independent Actuary Seller shall decide all matters relating have the right to observe and comment upon the procedures preparation of such schedule. The failure of Buyer to be followed for resolution deliver the Adjustment Schedule in a timely manner shall constitute Buyer's acceptance of the dispute, including those relating to Closing Date Working Capital Amount as the submission and receipt Working Capital Amount. Within seven (7) days after delivery of information and documents; provided, however, that at the request of either Aspen or the Reinsurer, a meeting shall be held at which the Parties may present their views, that both Aspen and the Reinsurer shall have equal access to the Independent Actuary, and that all information and documents which either Party delivers or makes available to the Independent Actuary shall be furnished to the other Party as well. The review by the Independent Actuary shall be limited solely to the disputed items (and any items affected thereby) and amounts in the True-Up Dispute Notice that remain unresolved. Any determination by the Independent Actuary shall not be outside the range defined by the respective amounts in the Final Closing Statement and the True-Up Dispute Notice, and such determination shall be final and binding upon, and non-appealable byAdjustment Schedule, the Parties and their respective successors and assigns for all purposes Seller may notify the Buyer in writing that such schedule does not, in its opinion, fairly state the Working Capital Adjustment in accordance with the provisions of this Agreement, setting forth in reasonable detail the respects in which it fails to do so. In the event that the Seller and not subject Buyer are unable to collateral attack for resolve any reason absent manifest error or frauddispute so raised within thirty (30) days after delivery of the Adjustment Schedule, they shall appoint a "big five" accounting firm acceptable to both of them, whose expenses will be shared equally by the Seller and the Buyer (the "Independent Accounting Firm"). The fees and expenses of Independent Accounting Firm shall, as promptly as possible, determine the Independent Actuary arising from such arbitration shall be paid by the Parties pro rata based on where the Independent Actuary’s items in dispute. The determination of the New Reinsurance Premium falls Working Capital Adjustment by such Independent Accounting Firm shall be made in comparison a writing delivered to both parties and shall be conclusive and binding on the amount claimed by ▇▇▇▇▇ in the Final Closing Statement and the amount claimed by the Reinsurer in the True-Up Dispute Noticeparties.
(db) If the New Reinsurance Premium as finally determined pursuant to this Section 3.3 is (i) greater than the Estimated New Reinsurance Premium (such difference, a “Positive Adjustment Amount”), then Aspen shall pay to the Reinsurer (or to the applicable Trust Accounts, to the extent that the Reinsurer’s Posted Collateral is less than the Initial Required Collateral Amount), by wire transfer of immediately available funds to one or more accounts designated in writing by the Reinsurer, the Positive Adjustment Amount within Within five (5) Business Days following final determination days after delivery of the New Reinsurance Premium pursuant to this Section 3.3 report by such Independent Accounting Firm or after the settlement of any dispute or within ten (10) days following delivery of the Adjustment Schedule if no dispute exists, payment shall be made (i) by the Seller if the Working Capital Adjustment is a positive number, or (ii) by the Buyer if the Working Capital Adjustment is a negative number.
(c) For purposes of calculating the Closing Date Working Capital, the Working Capital Amount and the Working Capital Adjustment, the term "Working Capital" shall mean the sum of (i) the Inventory, and (ii) the Accounts Receivable, less than (iii) the Estimated New Reinsurance Premium Accounts Payable of the Business (the absolute value of such difference, a “Negative Adjustment Amount”including in each case CHP), then Aspen as of December 30, 1999. The parties agree that the Working Capital of CHP will be valued in United States dollars, and that the conversion into U.S. dollars of any amounts reflected on CHP's books and records in Canadian dollars shall reduce be accomplished by using the Funds Withheld Account Balance by cross-exchange rate for conversion of Canadian dollars into United States dollars appearing in the Negative Adjustment Amount"Markets Diary" section of The Wall Street Journal on December 30, 1999.
Appears in 1 contract
Sources: Purchase and Sale Agreement (Opta Food Ingredients Inc /De)
Post-Closing Adjustment. (a) No later than forty-five The Merger Consideration shall be subject to adjustment after the Closing Date as specified in this Section 1.4.
(45b) Within one hundred twenty (120) days following the Closing DateEffective Time, Aspen Aztec shall deliver cause PricewaterhouseCoopers LLP ("Aztec's Accountant") to audit the Reinsurer a detailed statement in Surviving Corporation's books, using generally accepted auditing standards, to determine the same form as accuracy of the information set forth on the Closing Statement Financial Certificate (the “Final "Post-Closing Statement”) setting forth Aspen’s good faith calculation Audit"). The parties acknowledge and agree that for purposes of (i) determining the New Reinsurance Premium (including net worth of 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, Company as of the Closing Date, together the value of the assets of the Company shall, except with all accountingthe prior written consent of Aztec, actuarial be calculated as provided in the last paragraph of Section 6.9. The Stockholders shall cooperate and shall use their reasonable efforts to cause the officers and employees of the Company to cooperate with Aztec and Aztec's Accountant after the Closing Date in furnishing information, documents, evidence and other data and documentation reasonably necessary for assistance to Aztec's Accountant to facilitate the Reinsurer to review ▇▇▇▇▇’s proposed final calculations of such amounts.
(b) Upon receipt completion of the Final Post-Closing Statement, Audit within the Reinsurer and its authorized Representatives will be given reasonable access to all accounting, actuarial and other data and documentation related to aforementioned time period. Without limiting the preparation generality of the Final foregoing, within two (2) weeks after the Closing Statement for the purpose of, and Stockholders shall provide Aztec's Accountants with the information and/or documents requested on the Post-Closing Audit Checklist set forth as Schedule 1.4 hereto in order to facilitate 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 completion of the Reinsurer’s receipt Post-Closing Audit by Aztec's Accountant within the aforementioned time period. In the event that Aztec's Accountant determines that the actual Company net worth as of the Final Closing StatementDate was less than the Certified Closing Net Worth, the Reinsurer may Aztec shall deliver a written notice (the “True-Up Dispute "Financial Adjustment Notice”") to Aspen the Stockholders, setting forth (i) the determination made by Aztec's Accountant of any objectionsthe actual Company net worth (the "Actual Company Net Worth"), specifying in reasonable detail any contested amounts together with the calculation thereof and the basis thereforwork papers related thereto, (ii) the amount of the Merger Consideration that would have been payable at Closing pursuant to Section 1.3(c) had the Actual Company Net Worth been reflected on the Closing Financial Certificate instead of the Certified Closing Net Worth, and (iii) the amount by which the Reinsurer may cash paid as the Merger Consideration would have been reduced at Closing had the Actual Company Net Worth been used in the calculations pursuant to Section 1.3(c) (the "Merger Consideration Adjustment"). The Merger Consideration Adjustment shall take account of the reduction, if any, to the Final Closing Statement. The failure of the Reinsurer Merger Consideration already taken pursuant 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 amountsSection 1.3(c)(i).
(c) If Aspen and the Reinsurer are unable to resolve all disagreements with respect to the Final Closing Statement within The Stockholders shall have thirty (30) days following ▇▇▇▇▇’s from the receipt of the Financial Adjustment Notice to notify Aztec if the Stockholders dispute such Financial Adjustment Notice. If Aztec has not received notice of such a Truedispute within such 30-Up Dispute Notice (the “True-up Dispute Cooling-Off Period”)day period, the items and amounts in dispute Aztec shall be submitted for review entitled to receive from the Independent Actuary for final determination within forty-five Stockholders (45) days after such submission. The Independent Actuary shall decide all matters relating to which may, at Aztec's sole discretion, be from the procedures to be followed for resolution of the dispute, including those relating to the submission and receipt of information and documents; provided, however, that at the request of either Aspen or the Reinsurer, a meeting shall be held at which the Parties may present their views, that both Aspen and the Reinsurer shall have equal access to the Independent Actuary, and that all information and documents which either Party delivers or makes available to the Independent Actuary shall be furnished to the other Party Pledged Assets as well. The review by the Independent Actuary shall be limited solely to the disputed items (and any items affected thereby) and amounts defined in the True-Up Dispute Notice that remain unresolved. Any determination by the Independent Actuary shall not be outside the range defined by the respective amounts in the Final Closing Statement and the True-Up Dispute Notice, and such determination shall be final and binding upon, and non-appealable by, the Parties and their respective successors and assigns for all purposes of this Agreement, and not subject to collateral attack for any reason absent manifest error or fraud. The fees and expenses of the Independent Actuary arising from such arbitration shall be paid by the Parties pro rata based on where the Independent Actuary’s determination of the New Reinsurance Premium falls in comparison to the amount claimed by ▇▇▇▇▇ in the Final Closing Statement and the amount claimed by the Reinsurer in the True-Up Dispute Notice.
(d) If the New Reinsurance Premium as finally determined pursuant to this Section 3.3 is (i) greater than the Estimated New Reinsurance Premium (such difference, a “Positive Adjustment Amount”1.5), then Aspen shall pay to the Reinsurer (or to the applicable Trust Accounts, to the extent that the Reinsurer’s Posted Collateral is less than the Initial Required Collateral Amount), by wire transfer of immediately available funds to one or more accounts designated in writing by the Reinsurer, the Positive Adjustment Amount within five (5) Business Days following final determination of the New Reinsurance Premium pursuant to this Section 3.3 or (ii) less than the Estimated New Reinsurance Premium (the absolute value of such difference, a “Negative Adjustment Amount”), then Aspen shall reduce the Funds Withheld Account Balance by the Negative Adjustment Amount.
Appears in 1 contract
Sources: Agreement and Plan of Reorganization (Aztec Technology Partners Inc /De/)
Post-Closing Adjustment. (a) No later than forty-five Within ninety (4590) calendar days following the Closing Date, Aspen Deloitte & Touche, LLP ("Deloitte") shall prepare and deliver to the Reinsurer a detailed statement in Company, Acquisition and the same form as the Closing Statement (the “Final Closing Statement”) setting forth Aspen’s good faith calculation of Holder Representative (i) the New Reinsurance Premium (including the New Reinsurance Premium Accrued InterestFinal Balance Sheet, the Roll-forward Amount and the ULAE Reimbursement Amount) and (ii) a calculation of the Initial Required Collateral AmountNet Assets of the Company and its Subsidiary as set forth on the Final Balance Sheet (the "FINAL NET ASSETS"). The Final Balance Sheet shall be audited, prepared in accordance with GAAP consistent with the preparation of the historical consolidated financial statements of the Company and accompanied by an unqualified audit opinion. During the preparation of the Final Balance Sheet by Deloitte, Holder Representative and each of the Principal Holders shall cooperate fully with Deloitte, in each case, as of case to the extent required by Deloitte in order to prepare the Final Balance Sheet and render the audit opinion. Such Final Balance Sheet shall be binding with respect to the Post- Closing Date, together with Adjustment on all accounting, actuarial and other data and documentation reasonably necessary for the Reinsurer parties to review ▇▇▇▇▇’s proposed final calculations of such amountsthis Agreement.
(b) Upon receipt of the 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 Net Assets 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 increased (or independent actuaries, as applicable. Within fortyreduced) dollar- for-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 dollar to the extent that such amounts are affected by any disputed amountsthe Final Deferred Income Tax Liability is less than (or exceeds) the Closing Deferred Income Tax Liability.
(c) If Aspen and Within fifteen (15) calendar days of delivery of the Reinsurer are unable to resolve all disagreements with respect Final Balance Sheet by Deloitte 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”)Company, Holder Representative and Acquisition, the items and amounts in dispute following adjustments shall be submitted for review made: (i) if the Post-Closing Adjustment (as defined below) is a negative number, the Surviving Corporation and Holder Representative shall instruct the Escrow Agent to return a portion of the Escrow Deposit equal to the Independent Actuary for final determination within forty-five (45) days after such submission. The Independent Actuary shall decide all matters relating Post Closing Adjustment to the procedures Surviving Corporation (including any interest accrued thereon) with any remaining amount paid to be followed Holder Representative for resolution the ratable benefit of Holders and (ii) if the Post- Closing Adjustment is a positive number, the Surviving Corporation and Holder Representative shall instruct the Escrow Agent to return all of the dispute, including those relating Escrow deposit to Holder Representative for the submission and receipt of information and documents; provided, however, that at the request of either Aspen or the Reinsurer, a meeting shall be held at which the Parties may present their views, that both Aspen and the Reinsurer shall have equal access to the Independent Actuary, and that all information and documents which either Party delivers or makes available to the Independent Actuary shall be furnished to the other Party as well. The review by the Independent Actuary shall be limited solely to the disputed items (and any items affected thereby) and amounts in the True-Up Dispute Notice that remain unresolved. Any determination by the Independent Actuary shall not be outside the range defined by the respective amounts in the Final Closing Statement and the True-Up Dispute Notice, and such determination shall be final and binding upon, and non-appealable by, the Parties and their respective successors and assigns for all purposes of this Agreement, and not subject to collateral attack for any reason absent manifest error or fraud. The fees and expenses ratable benefit of the Independent Actuary arising from such arbitration shall Holders (including any interest accrued thereon) with any remaining amount to be paid by the Parties pro rata based on where Surviving Corporation. The "POST-CLOSING ADJUSTMENT" shall be computed by subtracting the Independent Actuary’s determination of the New Reinsurance Premium falls in comparison to the amount claimed by ▇▇▇▇▇ in Closing Date Net Assets from the Final Closing Statement and Net Assets (as adjusted pursuant to SUBSECTION 2.5.2(d)). If such amount due exceeds the amount claimed by Escrow Deposit, the Reinsurer in Surviving Corporation shall pay such excess to Holder Representative for the True-Up Dispute Noticeratable benefit of Holders.
(d) If In the New Reinsurance Premium event that any taxing authority, court, or other governmental or regulatory authority determines that the deferred income tax liability of the Company related to the cash to accrual conversion as finally determined pursuant to this Section 3.3 of December 31, 1996 is (i) greater than the Estimated New Reinsurance Premium (such differenceFinal Deferred Income Tax Liability, Surviving Corporation and Holder Representative shall instruct the Escrow Agent to return a “Positive Adjustment Amount”), then Aspen shall pay portion of the Escrow Deposit equal to the Reinsurer (or difference between such amounts to the applicable Trust Accounts, to the extent that the Reinsurer’s Posted Collateral is less than the Initial Required Collateral Amount), by wire transfer of immediately available funds to one or more accounts designated in writing by the Reinsurer, the Positive Adjustment Amount within five (5) Business Days following final determination of the New Reinsurance Premium pursuant to this Section 3.3 or (ii) less than the Estimated New Reinsurance Premium (the absolute value of such difference, a “Negative Adjustment Amount”), then Aspen shall reduce the Funds Withheld Account Balance by the Negative Adjustment AmountSurviving Corporation.
Appears in 1 contract
Post-Closing Adjustment. (ai) No later than forty-five (45) Within 90 days following after the Closing Date, Aspen Buyer shall prepare and deliver to the Reinsurer Shareholder Representative a detailed statement in the same form as the Closing Statement (the “Final Closing Statement”) setting forth Aspen’s good faith its calculation of (i) Closing Working Capital, which statement shall contain a balance sheet of 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, Acquired Companies as of the Closing DateDate (without giving effect to the transactions contemplated herein), together with all accountinga calculation of Closing Working Capital, actuarial and other data and documentation reasonably necessary for the Reinsurer to review ▇▇▇▇▇’s proposed final calculations of such amounts.
(b) Upon receipt a calculation of the Final Cash of the Acquired Companies as of the Closing, a calculation of the outstanding Debt Like Items of each Acquired Company as of the Closing, a calculation of the outstanding Indebtedness of each Acquired Company as of the Closing, and a calculation of the unpaid Transaction Expenses of each Acquired Company as of the Closing (the “Closing Working Capital Statement”), and a certificate of the Reinsurer Chief Financial Officer of Buyer that the Closing Working Capital Statement was prepared in accordance with GAAP applied using the same accounting methods, practices, principles, policies, and its authorized Representatives will be given reasonable access to all accountingprocedures, actuarial with consistent classifications, judgments, and other data valuation and documentation related to estimation methodologies, that were used in the preparation of the Final Closing Statement for Financial Statements and 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 sample calculation attached hereto as Exhibit A.
(ii) The post-closing adjustment shall be required an amount equal to make any work papers available to (A) the Reinsurer unless Estimated Working Capital minus 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 actuariesClosing Working Capital, as applicable. Within forty-five plus (45B) days the Estimated Cash minus the Cash of the Reinsurer’s receipt Acquired Companies as of the Final Closing, (C) the outstanding Debt Like Items of the Acquired Companies as of the Closing Statementminus the Estimated Closing Debt Like Items, plus (D) the Reinsurer may deliver written notice outstanding Indebtedness of the Acquired Companies as of the Closing minus the Estimated Closing Indebtedness, plus (E) the unpaid Transaction Expenses of the Acquired Companies as of the Closing minus the Estimated Closing Transaction Expenses (the “TruePost-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 PeriodAdjustment Amount”), the items and amounts in dispute shall be submitted for review to the Independent Actuary for final determination within forty-five (45) days after such submission. The Independent Actuary shall decide all matters relating to the procedures to be followed for resolution of the dispute, including those relating to the submission and receipt of information and documents; provided, however, that at the request of either Aspen or the Reinsurer, a meeting shall be held at which the Parties may present their views, that both Aspen and the Reinsurer shall have equal access to the Independent Actuary, and that all information and documents which either Party delivers or makes available to the Independent Actuary shall be furnished to the other Party as well. The review by the Independent Actuary shall be limited solely to the disputed items (and any items affected thereby) and amounts in the True-Up Dispute Notice that remain unresolved. Any determination by the Independent Actuary shall not be outside the range defined by the respective amounts in the Final Closing Statement and the True-Up Dispute Notice, and such determination shall be final and binding upon, and non-appealable by, the Parties and their respective successors and assigns for all purposes of this Agreement, and not subject to collateral attack for any reason absent manifest error or fraud. The fees and expenses of the Independent Actuary arising from such arbitration shall be paid by the Parties pro rata based on where the Independent Actuary’s determination of the New Reinsurance Premium falls in comparison to the amount claimed by ▇▇▇▇▇ in the Final Closing Statement and the amount claimed by the Reinsurer in the True-Up Dispute Notice.
(d) If the New Reinsurance Premium Post-Closing Adjustment Amount is a negative number as finally determined pursuant to this Section 3.3 is (i) greater than the Estimated New Reinsurance Premium (such difference, a “Positive Adjustment Amount”2.03(b)-(c), then Aspen shall Buyer shall, pursuant to Section 2.03(d), pay to the Reinsurer (or Shareholder Representative, for further payment to the applicable Trust AccountsSellers in accordance with their Applicable Percentage, to the extent that amount by which the Reinsurer’s Posted Collateral Post-Closing Adjustment Amount is less than zero. If the Initial Required Collateral Amount), by wire transfer of immediately available funds to one or more accounts designated in writing by the Reinsurer, the Positive Post-Closing Adjustment Amount within five (5) Business Days following final determination of the New Reinsurance Premium is a positive number as finally determined pursuant to this Section 3.3 or (ii) less than the Estimated New Reinsurance Premium (the absolute value of such difference, a “Negative Adjustment Amount”2.03(b)-(c), then Aspen shall reduce Sellers shall, pursuant to Section 2.03(d), pay to Buyer an amount equal to the Funds Withheld Account Balance by the Negative Post-Closing Adjustment Amount.
Appears in 1 contract
Sources: Share Purchase Agreement (Allied Motion Technologies Inc)
Post-Closing Adjustment. (ai) No As promptly as practicable, but in no event later than forty-five (45) 75 days following after the Closing Date, Aspen Parent shall cause Holdco to prepare and deliver to the Reinsurer Representative a detailed consolidated balance sheet of the Companies as of the Determination Time together with a statement (the “Closing Statement”) containing Parent’s determination, with supporting detail, of the actual amounts of Closing Working Capital, Closing Cash, Closing Debt and Transaction Expenses, and Parent’s calculation of the Merger Consideration based on such amounts (such amount, as finally determined in accordance with this Section 2.10, the “Final Merger Consideration”). The Closing Statement, the Final Merger Consideration and all computations, determinations, accounting principles and adjustments contained therein shall be prepared in accordance with the accounting principles, practices, procedures, policies, methods, classifications, judgments, assumptions, techniques, elections, inclusions, exclusions and valuation and estimation methodologies utilized in the same form preparation of the 2016 Audited Financial Statements and the Sample Working Capital Calculation. The Closing Statement shall not include any changes in assets or liabilities as a result of purchase accounting adjustments. The Parties agree that the purpose of preparing the Closing Statement and determining the Closing Working Capital is to measure the difference between agreed upon elements of Closing Working Capital as of the Determination Time compared to the Estimated Working Capital. Such processes are not intended to permit the introduction of different judgments, accounting methods, policies, principles, practices, procedures, classifications or estimation methodologies for the purpose of determining the Closing Working Capital from those used to determine the Sample Working Capital unless a new Current Asset or new Current Liability arises that did not exist at the time of the preparation of the Sample Working Capital.
(ii) Within 45 days following receipt by the Representative of the Closing Statement, the Representative shall deliver written notice to Parent of any dispute it has with respect to the preparation or content of the Closing Statement (a “Dispute Notice”). If the “Final Representative does not deliver a Dispute Notice within such 45-day period, the Closing Statement”) setting forth Aspen’s Statement will be final, conclusive and binding on the Parties. If the Representative does deliver a Dispute Notice within such 45-day period, Parent and the Representative shall negotiate in good faith calculation of to resolve each disputed item raised therein (i) the New Reinsurance Premium (including the New Reinsurance Premium Accrued Interest, the Roll-forward Amount each a “Disputed Item”). If Parent and the ULAE Reimbursement Amount) and (ii) the Initial Required Collateral AmountRepresentative, in each casenotwithstanding such good faith effort, as of the Closing Date, together with all accounting, actuarial and other data and documentation reasonably necessary for the Reinsurer fail to review ▇▇▇▇▇’s proposed final calculations of resolve 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) dispute within 60 days of the Reinsurerafter Parent’s receipt of the Final Dispute Notice, the Parties shall within five Business Days, submit any outstanding Disputed Item to the Arbitration Firm, who shall be engaged to provide a final and conclusive resolution of all unresolved Disputed Items as promptly as practicable, but in no event more than 60 days after the date of such engagement. The Arbitration Firm shall determine only those issues that remain in dispute. In resolving any Disputed Items, the Arbitration Firm may not assign a value to any Disputed Item greater than the greatest value for such item assigned by Parent in the Closing Statement, on the Reinsurer may deliver written notice (one hand, or 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 Representative 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 such submission. The Independent Actuary shall decide all matters relating to the procedures to be followed for resolution of the dispute, including those relating to the submission and receipt of information and documents; provided, however, that at the request of either Aspen or the Reinsurer, a meeting shall be held at which the Parties may present their views, that both Aspen and the Reinsurer shall have equal access to the Independent Actuary, and that all information and documents which either Party delivers or makes available to the Independent Actuary shall be furnished to the other Party as well. The review by the Independent Actuary shall be limited solely to the disputed items (and any items affected thereby) and amounts in the True-Up Dispute Notice that remain unresolved. Any determination by the Independent Actuary shall not be outside the range defined by the respective amounts in the Final Closing Statement and the True-Up Dispute Notice, on the other hand, or less than the smallest value for such item assigned by Parent in the Closing Statement, on the one hand, or the Representative in the Dispute Notice, on the other hand. The Arbitration Firm’s determination will be based solely on written submissions by Parent and such the Representative (i.e., not on the basis of an independent review and testimony) and in accordance with the guidelines and procedures set forth in this Agreement. The Arbitration Firm’s determination shall be final made within 30 Business Days of such submissions, shall be set forth in a written report which shall include an explanation of the reasons for its determination on each matter in dispute and shall be final, binding upon, and non-appealable by, conclusive on the Parties and their respective successors and assigns for all purposes of this Agreement, and not subject to collateral attack for any reason absent manifest error or fraudparties. The fees and expenses of the Independent Actuary arising from such arbitration Arbitration Firm shall be paid allocated by the Parties pro rata Arbitration Firm based on where the Independent Actuary’s determination aggregate percentage that the portions of the New Reinsurance Premium falls in comparison contested amounts not awarded to each party bear to the amount claimed aggregate amounts contested by ▇▇▇▇▇ such party, and each party shall bear its own other expenses in the Final Closing Statement connection therewith, including its attorneys’ and the amount claimed by the Reinsurer in the True-Up Dispute Noticeaccountants’ fees.
(d) If the New Reinsurance Premium as finally determined pursuant to this Section 3.3 is (i) greater than the Estimated New Reinsurance Premium (such difference, a “Positive Adjustment Amount”), then Aspen shall pay to the Reinsurer (or to the applicable Trust Accounts, to the extent that the Reinsurer’s Posted Collateral is less than the Initial Required Collateral Amount), by wire transfer of immediately available funds to one or more accounts designated in writing by the Reinsurer, the Positive Adjustment Amount within five (5) Business Days following final determination of the New Reinsurance Premium pursuant to this Section 3.3 or (ii) less than the Estimated New Reinsurance Premium (the absolute value of such difference, a “Negative Adjustment Amount”), then Aspen shall reduce the Funds Withheld Account Balance by the Negative Adjustment Amount.
Appears in 1 contract
Sources: Merger Agreement (Ducommun Inc /De/)
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) Within *** (***) days after the New Reinsurance Premium Effective Date, Seller will prepare and deliver to Buyer (including A) a balance sheet of the New Reinsurance Premium Accrued Interest, the Roll-forward Amount Company at and the ULAE Reimbursement Amount) and (ii) the Initial Required Collateral Amount, in each case, as of the Closing DateTime, together which balance sheet will be prepared in accordance with all accountingthe Applicable Accounting Principles (“Closing Time Balance Sheet”), actuarial with reasonable supporting documentation, (B) a statement setting forth its calculation of Closing Working Capital, which statement will be prepared in accordance with the Applicable Accounting Principles and other data will be substantially in the form of Schedule 2.3(a)(i)(1) (the “Closing Working Capital Statement”), and documentation reasonably necessary for the Reinsurer to review ▇▇▇▇▇’s proposed final calculations of such amounts.
(bC) Upon receipt a certificate of the Final Chief Executive Officer or Chief Financial Officer of Seller that each of the Closing StatementTime Balance Sheet and Closing Working Capital Statement was prepared using the Applicable Accounting Principles. For purposes of facilitating interpretation of this Section 2.3(a)(i), Schedule 2.3(a)(i)(2) contains an illustrative Closing Working Capital Statement calculating Closing Working Capital as of the Interim Balance Sheet Date in accordance with the Applicable Accounting Principles. Seller and its accountants will have full access to the relevant books and records of the Company, 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 personnel 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 actuariesprepared by, as applicable. Within forty-five (45) days of the Reinsurer’s receipt of the Final Closing StatementBuyer, the Reinsurer may deliver written notice (the “True-Up Dispute Notice”) to Aspen Company and/or either 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 their accountants to the extent that they relate to the Closing Time Balance Sheet and/or the Closing Working Capital Statement and to such amounts are affected by any disputed amountshistorical financial information (to the extent in Buyer’s and/or the Company’s possession) relating to the Closing Time Balance Sheet and/or the Closing Working Capital Statement as Seller may reasonably request for the purpose of preparing the Closing Time Balance Sheet and/or the Closing Working Capital Statement.
(cii) If Aspen The “Post-Closing Adjustment” will be an amount equal to (A) the Closing Working Capital, minus (B) the Target Working Capital, minus (C) any Taxes that are due and payable for periods prior to and through 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”)Closing, the items and amounts in dispute shall be submitted for review to the Independent Actuary for final determination within forty-five (45) days after such submission. The Independent Actuary shall decide all matters relating to the procedures to be followed for resolution of the dispute, including those relating to the submission and receipt of information and documents; provided, however, that at the request of either Aspen or the Reinsurer, a meeting shall be held at but which the Parties may present their views, that both Aspen and the Reinsurer shall have equal access to the Independent Actuary, and that all information and documents which either Party delivers or makes available to the Independent Actuary shall be furnished to the other Party as well. The review by the Independent Actuary shall be limited solely to the disputed items (and any items affected thereby) and amounts in the True-Up Dispute Notice that remain unresolved. Any determination by the Independent Actuary shall not be outside the range defined by the respective amounts in the Final Closing Statement and the True-Up Dispute Notice, and such determination shall be final and binding upon, and non-appealable by, the Parties and their respective successors and assigns for all purposes of this Agreement, and not subject to collateral attack for any reason absent manifest error or fraud. The fees and expenses of the Independent Actuary arising from such arbitration shall be been paid by the Parties pro rata based on where Company or the Independent Actuary’s determination of Seller or which otherwise remain outstanding at the New Reinsurance Premium falls time when any Post-Closing Adjustment amount is due and payable. If the Post-Closing Adjustment is a positive number, Buyer will pay to Seller an amount in comparison Australian dollars equal to the amount claimed by ▇▇▇▇▇ Post-Closing Adjustment within the timeframe described in the Final Closing Statement and the amount claimed by the Reinsurer in the True-Up Dispute Notice.
(d) Section 2.3(f). If the New Reinsurance Premium as finally determined pursuant to this Section 3.3 Post-Closing Adjustment is (i) greater than the Estimated New Reinsurance Premium (such differencea negative number, a “Positive Adjustment Amount”), then Aspen shall Seller will pay to the Reinsurer (or Buyer an amount in Australian dollars equal to the applicable Trust Accounts, to the extent that the Reinsurer’s Posted Collateral is less than the Initial Required Collateral Amount), by wire transfer of immediately available funds to one or more accounts designated in writing by the Reinsurer, the Positive Adjustment Amount within five (5) Business Days following final determination of the New Reinsurance Premium pursuant to this Section 3.3 or (ii) less than the Estimated New Reinsurance Premium (the absolute value of such difference, a “Negative the Post-Closing Adjustment Amount”within the timeframe described in Section 2.3(f), then Aspen shall reduce the Funds Withheld Account Balance by the Negative Adjustment Amount.
Appears in 1 contract
Post-Closing Adjustment. (a) No later than Within ninety (90) calendar days after the Closing Date, Buyer shall deliver to Seller a statement (the “Closing Statement”) setting forth Buyer’s good faith calculation of (each a “Closing Item”): (i) Working Capital (as finally determined pursuant to this Section 2.4, the “Final Working Capital”); (ii) the aggregate amount of Indebtedness (but, for clarity, not including any Company Guaranteed Debt) as of immediately prior to the Closing (as finally determined pursuant to this Section 2.4, “Final Indebtedness”); (iii) the aggregate amount of Transaction Expenses (as finally determined pursuant to this Section 2.4, the “Final Transaction Expenses”) and (iv) the resulting calculation of the Final Purchase Price, together with such summary calculation schedules reasonably necessary to understand the line items set forth in the Closing Statement. Buyer understands, acknowledges and agrees that if the Closing Statement is not delivered by Buyer to Seller by 5:00 p.m. ET on the ninetieth (90th) calendar day following the Closing (as such ninety (90) day period may be extended by mutual written agreement of Buyer and Seller), Seller may, at its sole election, elect that the Estimated Closing Statement shall constitute the Closing Statement deemed submitted by Buyer. Buyer agrees that, following the Closing through the date that the Closing Statement becomes conclusive and binding upon the Parties in accordance with this Section 2.4, it will not (and will cause its Affiliates not to) take any actions with respect to any books, records, policies or procedures on which the Closing Statement is based or on which the Closing Statement is to be based that would impede or delay the determination of the amount of the Final Working Capital, the Final Indebtedness, the Final Transaction Expenses or the preparation of the Dispute Notice or the Closing Statement in the manner and utilizing the methods required by this Agreement.
(b) Seller shall have forty-five (45) calendar 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 after ▇▇▇▇▇’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 Closing Statement (the “True-up Dispute Cooling-Off Review Period”), the items and amounts in dispute shall be submitted for ) within which to review to the Independent Actuary for final determination within forty-five (45) days after such submission. The Independent Actuary shall decide all matters relating to the procedures to be followed for resolution Buyer’s calculation of the disputeClosing Items. If Seller disputes any of the Closing Items, including those relating Seller shall notify Buyer in writing of its objection to such Closing Item(s) within the submission Review Period, together with a description of the basis for and receipt dollar amount, in reasonable detail, of information and documents; provided, however, that at the request of either Aspen or the Reinsurer, a meeting shall be held at which the Parties may present their views, that both Aspen and the Reinsurer shall have equal access to the Independent Actuary, and that all information and documents which either Party delivers or makes available to the Independent Actuary shall be furnished to the other Party as well. The review by the Independent Actuary shall be limited solely to the such disputed items (and any items affected thereby) and amounts in the True-Up Dispute Notice that remain unresolved. Any determination by the Independent Actuary shall not be outside the range defined by the respective amounts in the Final Closing Statement and the True-Up a “Dispute Notice”). For the avoidance of doubt, and such determination Seller shall be final and binding upon, and non-appealable by, the Parties and their respective successors and assigns for all purposes of this Agreement, and not subject entitled to collateral attack for any reason absent manifest error or fraud. The fees and expenses of the Independent Actuary arising from such arbitration shall be paid by the Parties pro rata based on where the Independent Actuary’s determination of the New Reinsurance Premium falls in comparison to the amount claimed by ▇▇▇▇▇ in the Final Closing Statement and the amount claimed by the Reinsurer in the True-Up Dispute Notice.
deliver only one (d) If the New Reinsurance Premium as finally determined pursuant to this Section 3.3 is (i) greater than the Estimated New Reinsurance Premium (such difference, a “Positive Adjustment Amount”1), then Aspen shall pay to the Reinsurer (or to the applicable Trust Accounts, to the extent that the Reinsurer’s Posted Collateral is less than the Initial Required Collateral Amount), by wire transfer of immediately available funds to one or more accounts designated in writing by the Reinsurer, the Positive Adjustment Amount within five (5) Business Days following final determination of the New Reinsurance Premium pursuant to this Section 3.3 or (ii) less than the Estimated New Reinsurance Premium (the absolute value of such difference, a “Negative Adjustment Amount”), then Aspen shall reduce the Funds Withheld Account Balance by the Negative Adjustment Amount.
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Post-Closing Adjustment. (a) No As soon as reasonably practicable after the Closing Date, but not later than ninety (90) days after the Closing Date, Purchaser shall prepare and deliver to ALT a statement in the same form as the Estimated Closing Statement (the “Adjustment Statement”), setting forth Purchaser’s good faith calculation of the Closing Date Net Working Capital (the “Final Closing Date Net Working Capital”). Final Closing Date Net Working Capital and the Adjustment Statement shall be prepared and calculated in accordance with the Accounting Principles.
(b) Within forty-five (45) days after delivery of the Adjustment Statement to ALT (such period, as it may be extended pursuant to this Section 2.8(b), the “Protest Period”), ALT may deliver to Purchaser either (i) a written notice indicating that ALT has not received material information reasonably necessary to complete its review of the Adjustment Statement and specifying the additional information requested that has not been provided and is reasonably necessary for ALT to complete its review of the Adjustment Statement (a “Notice of Information Required”), or (ii) written notice of any objections or disagreements that ALT may have as to the Adjustment Statement, specifying in reasonable detail the basis of such objections or disagreements together with the amount(s) in dispute (a “Protest Notice”). Any line item or amount specifically included in the Adjustment Statement and not identified in the Protest Notice as in dispute shall be deemed to be agreed upon, fixed and binding upon the Parties. If ALT does not deliver a Protest Notice to Purchaser within the Protest Period, ALT shall be deemed to have agreed to the Adjustment Statement prepared and delivered by Purchaser, and such Adjustment Statement (and the calculations therein) shall be deemed to be final and binding upon the Parties. If ALT delivers a Notice of Information Required within the Protest Period, the Protest Period shall be extended until the date that is ten (10) Business Days after ALT’s receipt of the information requested in the Notice of Information Required.
(c) Upon receipt of a Protest Notice within the Protest Period, Purchaser and ALT shall attempt in good faith to resolve any disagreement or dispute regarding the Adjustment Statement. If Purchaser and ALT are unable to resolve any disagreement or dispute with respect to the Adjustment Statement within 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 AspenPurchaser’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 receipt of the Closing DateProtest Notice, together with all accounting, actuarial and other data and documentation reasonably necessary for the Reinsurer then such disagreement or dispute shall be submitted to review ▇▇▇▇▇’s proposed final calculations of ▇ LLP, or, if such amounts.
firm is unable or unwilling to be engaged for such purpose, then Purchaser and ALT will mutually select another independent accounting firm (bthe “Arbitrating Accountant”). The Arbitrating Accountant will be instructed to send to Purchaser and ALT, within thirty (30) Upon receipt days of the Final Closing Statementdate on which such dispute is referred to such Arbitrating Accountant, its determination on the Reinsurer specific matters in dispute which shall be final and its authorized Representatives will binding on all Parties, absent fraud or manifest error, and shall be given reasonable access to considered an arbitral award for all accountingpurposes, actuarial and other data upon which a judgment may be entered by a court having competent jurisdiction. Each of Purchaser and documentation related ALT shall submit, in writing, to the preparation Arbitrating Accountant, their briefs detailing their views as to the correct nature and amount of each item remaining in dispute or disagreement, and the Arbitrating Accountant shall make such determination based solely on the data presented by Purchaser and ALT that are in accordance with the terms of this Article II (i.e., not by independent review). None of the Final Closing Statement for Parties shall engage in ex parte communications with the purpose ofArbitrating Accountant. The Arbitrating Accountant shall be the sole arbiter of all matters, procedural or substantive, as to such matters in dispute. Each of Purchaser and to ALT shall execute the extent reasonably necessary forArbitrating Accountant’s standard engagement letter and fund one-half (1/2) of its standard retainer, verifying the Final Closing Statementif applicable; provided, that no independent accountants or independent actuaries the total fees and costs of Aspen the Arbitrating Accountant for such determination shall be required paid by the Party whose calculation of the Closing Date Net Working Capital is farther from the final calculation of the Closing Date Net Working Capital after taking into account the determinations of the Arbitrating Accountant. For the avoidance of doubt, the Arbitrating Accountant shall not make any determination for any amount other than such amount or amounts in dispute and raised in a Protest Notice provided during the Protest Period. The Adjustment Statement and the Final Closing Date Net Working Capital shall incorporate the determination of the Arbitrating Accountant as well as those amounts not so in dispute, and shall be final and binding on the Parties.
(d) During the period from and after the date of delivery of the Adjustment Statement to ALT through the final determination of the Final Adjustment Amount contemplated by this Section 2.8, the Purchaser will afford the Seller Parties and their representatives reasonable access, during normal business hours and upon reasonable prior notice, to the personnel, properties, books and records of the Business, and to any other information reasonably requested and reasonably available to the Purchaser for purposes of preparing and reviewing the calculations contemplated by this Section 2.8. The Purchaser shall authorize its accountants to disclose work papers generated by such accountants in connection with preparing and reviewing the calculations specified in this Section 2.8; provided, that such accountants shall not be obligated to make any work papers available to except in accordance with such accountants’ disclosure procedures and then only after the Reinsurer unless the Reinsurer receiving party has signed a customary an agreement relating to such access to such work papers in form and substance reasonably acceptable to such independent accountants or independent actuaries, as applicable. accountants.
(e) Within forty-five (455) days Business Days after the final determination of the Reinsurer’s receipt Adjustment Statement:
(i) The adjustment to the Closing Cash Amount for Closing Date Net Working Capital computed in subsection (iii) of the definition thereof shall be recomputed using the Final Closing Statement, the Reinsurer may deliver written notice (the “True-Up Dispute Notice”) to Aspen of any objections, specifying Date Net Working Capital in reasonable detail any contested amounts and the basis therefor, which the Reinsurer may have to the Final Closing Statement. The failure lieu of the Reinsurer Estimated Closing Date Net Working Capital, and (A) if such recomputed adjustment amount is greater than the Estimated Net Working Capital Adjustment Amount and would result in an adjustment in favor of Seller, then Purchaser shall pay such adjustment amount to deliver ALT as provided by subsection (ii) below, or (B) if such True-Up Dispute Notice within recomputed adjustment amount is less than the prescribed time period will constitute the Reinsurer’s acceptance as final Estimated Net Working Capital Adjustment Amount and would result in an adjustment in favor of the Final Closing Statement as determined by ▇▇▇▇▇. Any amounts not disputed in the True-Up Dispute Notice (if one is delivered) Purchaser, then such adjustment amount shall be deemed paid to be accepted Purchaser as provided by the Reinsurer as final, except to the extent that such amounts are affected by any disputed amountssubsection (ii) below.
(cii) If Aspen and Any adjustment amount owed pursuant to Section 2.8(e)(i) by Purchaser to ALT, on the Reinsurer are unable one hand, or by ALT to resolve all disagreements with respect Purchaser, on the other hand, is referred to the Final Closing Statement within thirty (30) days following ▇▇▇▇▇’s receipt of a True-Up Dispute Notice (as the “True-up Dispute Cooling-Off PeriodFinal Adjustment Amount”), ; it being understood and agreed that if the items and amounts in dispute shall be submitted for review to the Independent Actuary for final determination within forty-five (45) days after such submission. The Independent Actuary shall decide all matters relating to the procedures to be followed for resolution of the dispute, including those relating to the submission and receipt of information and documents; provided, however, that at the request of either Aspen or the Reinsurer, a meeting shall be held at which the Parties may present their views, that both Aspen and the Reinsurer shall have equal access to the Independent Actuary, and that all information and documents which either Party delivers or makes available to the Independent Actuary shall be furnished to the other Party as well. The review by the Independent Actuary shall be limited solely to the disputed items (and any items affected thereby) and amounts in the True-Up Dispute Notice that remain unresolved. Any determination by the Independent Actuary shall not be outside the range defined by the respective amounts in the Final Closing Statement and the True-Up Dispute Notice, and such determination shall be final and binding upon, and non-appealable by, the Parties and their respective successors and assigns for all purposes of this Agreement, and not subject to collateral attack for any reason absent manifest error or fraud. The fees and expenses of the Independent Actuary arising from such arbitration shall be paid by the Parties pro rata based on where the Independent Actuary’s determination of the New Reinsurance Premium falls in comparison to the amount claimed by ▇▇▇▇▇ in the Final Closing Statement and the amount claimed by the Reinsurer in the True-Up Dispute Notice.
(d) If the New Reinsurance Premium as finally determined net effect pursuant to this Section 3.3 2.8(e)(ii) is (i) greater than an increase in the Estimated New Reinsurance Premium (such difference, a “Positive Adjustment Closing Cash Amount”), then Aspen Purchaser shall pay to the Reinsurer (or to the applicable Trust Accounts, to the extent that the Reinsurer’s Posted Collateral is less than the Initial Required Collateral Amount), by wire transfer of immediately available funds to one or more accounts designated ALT an amount in writing by cash equal to the ReinsurerFinal Adjustment Amount, and if the Positive Adjustment Amount within five (5) Business Days following final determination of the New Reinsurance Premium net effect pursuant to this Section 3.3 or (ii2.8(e)(ii) less than is a decrease in the Estimated New Reinsurance Premium (the absolute value of such difference, a “Negative Adjustment Closing Cash Amount”), then Aspen Seller shall reduce pay by wire transfer of immediately available funds to Purchaser and amount equal to such deficit, or at Purchaser’s election, set off and deduct from any amounts due to the Funds Withheld Account Balance by Seller under this Agreement or the Negative Seller Note. The Final Adjustment AmountAmount shall be treated as an adjustment to the Closing Cash Amount for Income Tax purposes. Notwithstanding anything herein to the contrary, in no event shall the dollar amount of the Target Closing Date Net Working Capital be subject to adjustment for any reason in connection with any calculation under this Article II or otherwise.
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Post-Closing Adjustment. (a) No later than forty-five Within sixty (4560) days following the Closing Date, Aspen Buyer shall deliver to the Reinsurer Seller a detailed statement in the same form as the Closing Statement (the “Final Closing Statement”e-mail sufficient with confirmation of delivery and receipt by Seller) 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 caseforth, as of 12:01 a.m. on the Closing Date, together Buyer's determination of the actual amounts of Net Working Capital and each component thereof in the format provided in the Net Working Capital Calculation Schedule (the "Proposed Final Closing Statement"), based upon the books and records of Seller related to the Rehabilitation Business and in accordance with all accounting, actuarial and other data and documentation reasonably necessary for the Reinsurer to review ▇▇▇▇▇’s proposed final calculations ▇'s historical accounting principles and practices as if the Proposed Final Closing Statement was prepared as of such amountsa fiscal year end. Unless Buyer timely delivers to Seller the Proposed Final Closing Statement, the Estimated Closing Statement will be final, conclusive and binding on the Parties, absent fraud or manifest error.
(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 Seller 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 's delivery of the Proposed Final Closing Statement to review the amounts and calculations set forth on the Proposed Final Closing Statement. Unless within such thirty (30) day period, Seller delivers to Buyer a written notice (e-mail sufficient with confirmation of delivery and receipt by Buyer) (a "Dispute Notice"), then the Proposed Final Closing Statement will be final, conclusive and binding on the Parties, absent fraud or manifest error. Any Dispute Notice delivered hereunder must set forth in reasonable detail (i) any item on the Proposed Final Closing Statement that Seller disputes, the basis for such dispute, and the Seller's proposed amount of such item and (ii) the Seller's alternative calculation of the actual amounts of Net Working Capital. Any item or amount to which no dispute is raised in the Dispute Notice will be final, conclusive and binding on the parties, absent fraud, on the date on which ▇▇▇▇▇ receives the Dispute Notice. Any Dispute Notice must specify, with reasonable particularity, all facts that form the basis of such disagreements. The Parties shall attempt to promptly resolve the matters raised in any Dispute Notice in good faith.
(c) If the Parties fail to agree to a resolution within fifteen (15) Business Days after delivery of any Dispute Notice, then either Buyer or Seller may provide written notice to the other (the "Dispute Submission Notice") that it elects to submit the disputed items to RSM US LLP (the "Accounting Firm"). The Accounting Firm will promptly after receipt of a True-Up the Dispute Notice (Submission Notice, in accordance with the “True-up Dispute Cooling-Off Period”)Commercial Arbitration Rules of the American Arbitration Association, the review only those unresolved items and amounts specifically set forth and objected to in the Dispute Notice and resolve the dispute shall be submitted with respect to each such specific unresolved item and amount in accordance with this Agreement (including, for review the avoidance of doubt, to the Independent Actuary extent relevant the application of the accounting methods, practices, principles, policies and procedures, with consistent classifications, judgments and valuation and estimation and accrual methodologies that were used in the preparation of the Financial Statements by determining whether the position of Buyer or Seller, are, on the whole, more accurate and, based on such determination, adopting either all of the positions set forth by Buyer or all of the positions set forth by Seller). In any such case, a single partner of the Accounting Firm selected by such Accounting Firm in accordance with its normal procedures and having expertise with respect to settlement of such disputes shall act for final the Accounting Firm in the determination proceeding, and the parties shall instruct the Accounting Firm to render a written decision with respect to such disputed matter, including a statement in reasonable detail of the basis for its decision within forty-five thirty (4530) days after such submission. The Independent Actuary shall decide all matters relating to the procedures to be followed for resolution parties' delivery of the dispute, including those relating to disputed items. All the submission and receipt of information and documents; provided, however, that at the request of either Aspen or the Reinsurer, a meeting shall be held at which the Parties may present their views, that both Aspen and the Reinsurer shall have equal access to the Independent Actuary, and that all information and documents which either Party delivers or makes available to the Independent Actuary shall be furnished to the other Party as well. The review by the Independent Actuary shall be limited solely to the disputed items (and any items affected thereby) and amounts in the True-Up Dispute Notice that remain unresolved. Any determination by the Independent Actuary shall not be outside the range defined by the respective amounts in the Final Closing Statement and the True-Up Dispute Notice, and such determination shall be final and binding upon, and non-appealable by, the Parties and their respective successors and assigns for all purposes of this Agreement, and not subject to collateral attack for any reason absent manifest error or fraud. The fees and expenses of the Independent Actuary arising from such arbitration Accounting Firm shall be paid borne by Seller (in the Parties pro rata based on where the Independent Actuary’s determination of the New Reinsurance Premium falls in comparison to the amount claimed by event that ▇▇▇▇▇ ▇'s positions are adopted by the Accounting Firm) or Buyer (in the Final Closing Statement and the amount claimed event that Seller positions are adopted by the Reinsurer in the True-Up Dispute NoticeAccounting Firm).
(d) If The decision of the New Reinsurance Premium Accounting Firm with respect to the disputed items of the Proposed Final Closing Statement submitted to it will be final, conclusive and binding on the Parties, absent fraud. As used herein, the Proposed Final Closing Statement or any statement that becomes binding upon a lapse of time and without timely submission to arbitration or notification of a dispute as finally determined adjusted to reflect any changes agreed to by the Parties and the decision of the Accounting Firm, in each case, pursuant to this Section 3.3 2.03, is (i) greater than referred to herein as the Estimated New Reinsurance Premium (such difference, a “Positive Adjustment Amount”), then Aspen shall pay to the Reinsurer (or to the applicable Trust Accounts, to the extent that the Reinsurer’s Posted Collateral is less than the Initial Required Collateral Amount), by wire transfer of immediately available funds to one or more accounts designated in writing by the Reinsurer, the Positive Adjustment Amount within five (5) Business Days following final determination of the New Reinsurance Premium pursuant to this Section 3.3 or (ii) less than the Estimated New Reinsurance Premium (the absolute value of such difference, a “Negative Adjustment Amount”), then Aspen shall reduce the Funds Withheld Account Balance by the Negative Adjustment Amount."
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Sources: Asset Purchase Agreement (Salona Global Medical Device Corp)