Post-Closing Adjustments. As soon as practicable after the Closing, but in no event later than one hundred eighty (180) days thereafter, Seller shall prepare and deliver to Purchaser a final settlement statement (the “Final Settlement Statement”) setting forth each adjustment or payment that was not finally determined as of the Closing and showing the calculation of such adjustments and the resulting Final Purchase Price. Seller shall make its workpapers and other information available to Purchaser to review in order to confirm the adjustments shown on Seller’s draft. As soon as practicable after receipt of the Final Settlement Statement, but in no event later than sixty (60) days thereafter, Purchaser shall deliver to Seller a written report containing any changes that Purchaser proposes to make to the Final Settlement Statement. Any failure by Purchaser to deliver to Seller the written report detailing Purchaser’s proposed changes to the Final Settlement Statement within sixty (60) days following Purchaser’s receipt of the Final Settlement Statement shall be deemed an acceptance by Purchaser of the Final Settlement Statement as submitted by Seller. The parties shall agree with respect to the changes proposed by Purchaser, if any, no later than sixty (60) days after Seller receives from Purchaser the written report described above containing Purchaser’s proposed changes. If the Purchaser and the Seller cannot then agree upon the Final Settlement Statement, the determination of the amount of the Final Settlement Statement shall be submitted to a mutually agreed firm of independent public accountants (the “Accounting Firm”). The determination by the Accounting Firm shall be conclusive and binding on the parties hereto and shall be enforceable against any party hereto in any court of competent jurisdiction. Any costs and expenses incurred by the Accounting Firm pursuant to this Section 12.1 shall be borne by the Seller and the Purchaser equally. The date upon which such agreement is reached or upon which the Final Purchase Price is established, shall be herein called the “Final Settlement Date.” In the event
Appears in 8 contracts
Samples: Agreement for Purchase and Sale (Forest Oil Corp), Agreement for Purchase and Sale (Forest Oil Corp), For Purchase and Sale (Forest Oil Corp)
Post-Closing Adjustments. As soon as practicable Within one hundred thirty (130) days after the Closing, but in no event later than one hundred eighty (180) days thereafter, Seller shall prepare and deliver to Purchaser Buyer, in accordance with this Agreement and generally accepted accounting principles, a final settlement statement (herein called the “Final Settlement Statement”"POST CLOSING SETTLEMENT STATEMENT") setting forth each adjustment or payment that was not finally determined as of included or correctly included in the Closing Preliminary Settlement Statement and showing the calculation of such adjustments and the resulting Final Purchase Priceadjustments. Seller shall make its workpapers and other information available to Purchaser to review in order to confirm the adjustments shown on Seller’s draft. As soon as practicable Within thirty (30) days after receipt of the Final Settlement StatementPost Closing Settlement, but in no event later than sixty (60) days thereafter, Purchaser Buyer shall deliver to Seller a written report containing any changes that Purchaser Buyer proposes to make be made to the Final Post Closing Settlement Statement. Any failure by Purchaser to deliver to Seller the written report detailing Purchaser’s proposed changes to the Final Settlement Statement within sixty (60) days following Purchaser’s receipt of the Final Settlement Statement shall be deemed an acceptance by Purchaser of the Final Settlement Statement as submitted by Seller. The parties shall undertake to agree with respect to the changes proposed by Purchaser, if any, amounts due pursuant to such Post Closing adjustment no later than one hundred sixty (60160) days after Seller receives from Purchaser the written report described above containing Purchaser’s proposed changes. If the Purchaser and the Seller cannot then agree upon the Final Settlement Statement, the determination of the amount of the Final Settlement Statement shall be submitted to a mutually agreed firm of independent public accountants (the “Accounting Firm”). The determination by the Accounting Firm shall be conclusive and binding on the parties hereto and shall be enforceable against any party hereto in any court of competent jurisdiction. Any costs and expenses incurred by the Accounting Firm pursuant to this Section 12.1 shall be borne by the Seller and the Purchaser equallyClosing Date. The date upon which such agreement is reached or upon which the Final Purchase Price is established, shall be herein called the “"SETTLEMENT DATE". In the event that (i) the Final Purchase Price is more than the Closing Amount, Buyer shall pay to Seller, in certified U.S. Funds, the amount of such difference (ii) the Final Purchase Price is less than the Closing Amount, Seller shall pay to Buyer, in certified U.S. funds, the amount of such difference. Payment by Buyer or Seller shall be made within ten (10) days of the Final Settlement Date. After the Settlement Date, additional proceeds received by or expenses paid by either Buyer or Seller on behalf of the other shall be settled by invoicing the other party for expenses paid or remitting to the other party any proceeds received. The gas imbalances of the Interests shall be considered final and neither party thereafter shall make claim upon the other concerning same.” In the event
Appears in 3 contracts
Samples: Purchase and Sale Agreement (Maynard Oil Co), Purchase and Sale Agreement (Maynard Oil Co), Purchase and Sale Agreement (Maynard Oil Co)
Post-Closing Adjustments. As soon as practicable after the Closing, but in no event later than one hundred eighty (180) days thereafter, Seller shall prepare and deliver to Purchaser a final settlement statement (the “Final Settlement Statement”) setting forth each adjustment or payment that was not finally determined as of the Closing and showing the calculation of such adjustments and the resulting Final Purchase Price. Seller shall make its workpapers and other information available to Purchaser to review in order to confirm the adjustments shown on Seller’s draft. As soon as practicable after receipt of the Final Settlement Statement, but in no event later than sixty (60) days thereafter, Purchaser shall deliver to Seller a written report containing any changes that Purchaser proposes to make to the Final Settlement Statement. Any failure by Purchaser to deliver to Seller the written report detailing Purchaser’s proposed changes to the Final Settlement Statement within sixty (60) days following Purchaser’s receipt of the Final Settlement Statement shall be deemed an acceptance by Purchaser of the Final Settlement Statement as submitted by Seller. The parties shall agree with respect to the changes proposed by PurchaserXxxxxxxxx, if any, no later than sixty (60) days after Seller Xxxxxx receives from Purchaser the written report described above containing Purchaser’s proposed changes. If the Purchaser and the Seller cannot then agree upon the Final Settlement Statement, the determination of the amount of the Final Settlement Statement shall be submitted to a mutually agreed firm of independent public accountants (the “Accounting Firm”). The determination by the Accounting Firm shall be conclusive and binding on the parties hereto and shall be enforceable against any party hereto in any court of competent jurisdiction. Any costs and expenses incurred by the Accounting Firm pursuant to this Section 12.1 shall be borne by the Seller and the Purchaser equally. The date upon which such agreement is reached or upon which the Final Purchase Price is established, shall be herein called the “Final Settlement Date.” In the event
Appears in 2 contracts
Post-Closing Adjustments. As soon as practicable after the Closing, Closing but in no event later than one hundred eighty (180) days thereafter, Seller shall prepare and deliver to Purchaser a final settlement statement (the “Final Settlement Statement”) setting forth each adjustment or payment that was not finally determined as of the Closing and showing the calculation of such adjustments and the resulting Final Purchase Price. Seller shall make its workpapers and other information available to Purchaser to review in order to confirm the adjustments shown on Seller’s draft. As soon as practicable after receipt of the Final Settlement Statement, but in no event later than sixty (60) days thereafter, Purchaser shall deliver to Seller a written report containing any changes that Purchaser proposes to make to the Final Settlement Statement. Any failure by Purchaser to deliver to Seller the written report detailing Purchaser’s proposed changes to the Final Settlement Statement within sixty (60) days following Purchaser’s receipt of the Final Settlement Statement shall be deemed an acceptance by Purchaser of the Final Settlement Statement as submitted by Seller. The parties shall agree with respect to the changes proposed by Purchaser, if any, no later than sixty (60) days Business Days after Seller receives from Purchaser the written report described above containing Purchaser’s proposed changes. If Closing Date, Investor shall deliver to the Purchaser and the Seller cannot then agree upon the Final Settlement Statement, the determination Sellers’ Representative a final calculation of the amount Net Working Capital as of the Final Settlement Statement shall be submitted to a mutually agreed firm of independent public accountants Closing Date (the “Accounting FirmFinal Working Capital Statement”). The determination by Final Working Capital Statement shall (i) be prepared in accordance with GAAP and provide for the Accounting Firm true up of all reserves, in all cases using the same accounting principles, practices and methodologies, consistently applied, that were used to prepare the New 2004 Audited Financial Statements, (ii) reflect the results of the Physical Inventory, and (iii) not reflect any Tax benefits or other accounting adjustments arising from the transactions resulting from or in connection with this Agreement or any of the Related Agreements. As part of this process, the reserves for general liability, automobile liability and workers’ compensation obligations shall also be trued up even though such reserves shall not be included in Current Liabilities when determining Net Working Capital. If the Net Working Capital set forth on the Final Working Capital Statement is greater than the Net Working Capital set forth in the Preliminary Working Capital Statement, then the Company shall remit the entire amount of the difference to the Sellers’ Representative for payment to the Sellers according to their respective Ownership Percentages. If the Net Working Capital set forth on the Final Working Capital Statement is less than the Net Working Capital set forth in the Preliminary Working Capital Statement, then the Sellers’ Representative shall direct the Escrow Agent, pursuant to the Escrow Agreement, to pay to the Company, out of the then-remaining Escrow Amount, an amount equal to such difference. Sellers shall remit the entire amount of such difference in excess of such Escrow Amount to the Company according to their respective Ownership Percentages. Amounts payable under this Section 2.03(b) shall be conclusive and binding on due no later than ten (10) Business Days following the parties hereto and shall be enforceable against any party hereto in any court finalization of competent jurisdiction. Any costs and expenses incurred by the Accounting Firm Final Working Capital Statement pursuant to this Section 12.1 shall be borne by the Seller and the Purchaser equally. The date upon which such agreement is reached or upon which the Final Purchase Price is established, shall be herein called the “Final Settlement Date2.03(c) below.” In the event
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Hhgregg, Inc.), Agreement and Plan of Merger (HHG Distributing, LLC)
Post-Closing Adjustments. As soon as practicable after To the Closingextent applicable, but Seller and Purchaser, acting in good faith, shall reconcile with each other within ninety (90) days of the later of (i) the Closing Date or (ii) the date an allocated amount becomes fixed and ascertainable (provided that in no event shall such date be later than one hundred eighty six (1806) months following the Closing Date), the amounts prorated and adjusted pursuant to this Article V using any new or updated information, including the reconciliation of estimated amounts with actual amounts, the correction of any errors and the inclusion of any items which should have been included at the Closing. Notwithstanding anything to the contrary contained herein, Seller’s obligations for real estate and personal property taxes shall be based on the assessed value set forth on Schedule 5.6. All adjustments to be made based on the mutual agreement of the parties shall be paid to the party entitled to the benefit of such adjustment within thirty (30) days thereafter, Seller shall prepare and deliver to Purchaser a after the final settlement statement (determination thereof. In the “Final Settlement Statement”) setting forth each adjustment or payment that was event the parties have not finally determined as of the Closing and showing the calculation of such adjustments and the resulting Final Purchase Price. Seller shall make its workpapers and other information available to Purchaser to review in order to confirm the adjustments shown on Seller’s draft. As soon as practicable after receipt of the Final Settlement Statement, but in no event later than sixty (60) days thereafter, Purchaser shall deliver to Seller a written report containing any changes that Purchaser proposes to make to the Final Settlement Statement. Any failure by Purchaser to deliver to Seller the written report detailing Purchaser’s proposed changes to the Final Settlement Statement within sixty (60) days following Purchaser’s receipt of the Final Settlement Statement shall be deemed an acceptance by Purchaser of the Final Settlement Statement as submitted by Seller. The parties shall agree agreed with respect to the changes proposed by Purchaser, if any, no later than sixty (60) days after Seller receives from Purchaser the written report described above containing Purchaser’s proposed changes. If the Purchaser and the Seller cannot then agree upon the Final Settlement Statement, the determination of the amount of the Final Settlement Statement shall all adjustments required to be submitted to a mutually agreed firm of independent public accountants (the “Accounting Firm”). The determination by the Accounting Firm shall be conclusive and binding on the parties hereto and shall be enforceable against any party hereto in any court of competent jurisdiction. Any costs and expenses incurred by the Accounting Firm made pursuant to this Section 12.1 5.6 within thirty (30) days following expiration of such ninety (90) day period, upon application by any such party, a certified public accountant reasonably acceptable to the parties shall determine any such adjustments which have not theretofore been agreed to between such parties. The charges of such accountant shall be borne split equally by the Seller and parties, unless one party prevails in all matters relating to such dispute, in which case the party that is not the prevailing party shall pay all charges of such accountant. All adjustments to be made as a result of the final results of the adjustments shall be paid to the party entitled to the benefit of such adjustment within thirty (30) days after the final determination thereof. Notwithstanding anything to the contrary contained in this Agreement, (i) in the event that, following the Closing, Purchaser equally. The date upon shall receive a refund of real estate taxes which relates to any period of time all or partly prior to the Closing (whether such agreement refund is reached made by direct payment or upon in the form of a credit against future real estate tax obligations), such refund (net of the reasonable, out-of-pocket costs of obtaining such refund, which shall be apportioned in the same percentages as the refund itself) shall be apportioned between the parties in proportion to the amount of time that each party owned the Property during the tax period to which the Final Purchase Price is establishedrefund relates, and (ii) subject to the requirements of clause (i), neither party shall be herein called have any obligation to re-adjust any items after the “Final Settlement Dateexpiration of the periods set forth in this Section 5.6.” In the event
Appears in 2 contracts
Samples: Purchase and Sale Agreement (Griffin-American Healthcare REIT IV, Inc.), Purchase and Sale Agreement (Griffin-American Healthcare REIT IV, Inc.)
Post-Closing Adjustments. As soon promptly as practicable after the Closingpracticable, but in no event later than one hundred eighty forty-five (18045) days thereafterfollowing the Closing Date, Seller Purchaser shall prepare and deliver cause to Purchaser a final settlement statement (be determined the “Final Settlement Statement”) setting forth each adjustment or payment that was not finally determined aggregate amount of Accounts Receivable plus Inventory as of the Closing Date (the “Closing Date Working Capital Balance”), determined in accordance with GAAP and showing with past practice of Seller (including the calculation valuation of Inventory at fully loaded cost) (provided that Accounts Receivable whose aging is beyond 90 days shall be valued at 30 percent of gross amount and any receivable deemed to be uncollectable shall be valued at zero) by retaining an independent inventory taking service provider mutually selected by Purchaser and Seller on or before the Closing Date to perform such adjustments calculation. Notwithstanding anything herein to the contrary, the Closing Date Working Capital Balance shall be increased by an amount equal to all payments made by Seller prior to the Closing Date in respect of Inventory (and associated shipping and freight charges), to the resulting Final Purchase Price. Seller shall make its workpapers and other information available to Purchaser to review extent that such Inventory remains in order to confirm the adjustments shown transit or otherwise is not included in Inventory on Seller’s draft. As soon balance sheet as practicable after receipt of the Final Settlement Statement, but in Closing Date; provided that no event later than sixty (60) days thereafter, Purchaser such adjustment shall deliver to Seller a written report containing any changes that Purchaser proposes to make be made to the Final Settlement StatementClosing Date Working Capital Balance if such amount resulted in an add-back to the Cash Purchase Price pursuant to Section 3.1(a)(i)(C). The Closing Date Working Capital balance shall be subject to Seller’s approval, not to be unreasonably withheld or delayed. The cost of the Inventory taking shall be divided equally between Seller and Purchaser. If the Closing Date Working Capital Balance is less than the Estimated Working Capital Balance, the Cash Price shall be adjusted downward on a dollar for dollar basis by the amount of such difference. Any failure by Purchaser to deliver to Seller the written report detailing Purchaser’s proposed changes adjustments to the Final Settlement Statement Cash Price made pursuant to this Section 3.1(e)(ii) shall be made within sixty (60) days following Purchaser’s receipt of the Final Settlement Statement shall be deemed an acceptance by Purchaser of the Final Settlement Statement as submitted by Seller. The parties shall agree with respect to the changes proposed by Purchaser, if any, no later than sixty (60) days after Seller receives from Purchaser the written report described above containing Purchaser’s proposed changesClosing Date. If the adjustment contemplated hereby requires payment to be made by Seller to Purchaser, Escrow Agent shall, promptly upon receipt of Notice from the Parties make such payment to Purchaser and by wire transfer of immediately available funds to an account designated in advance in writing by Purchaser. In such event, Escrow Agent shall release the Seller cannot then agree upon the Final Settlement Statement, the determination balance of the amount of Holdback to Seller less the Final Settlement Statement shall be submitted to a mutually agreed firm of independent public accountants Indemnity Claim Holdback (the “Accounting Firm”defined below). The determination If the Holdback is not sufficient to satisfy such adjustment, Seller shall promptly pay the balance to Purchaser. If the adjustment contemplated hereby does not require payment to be made by Seller to Purchaser, Escrow Agent shall, promptly upon receipt of Notice from the Accounting Firm shall be conclusive and binding on Parties, release the parties hereto and shall be enforceable against any party hereto in any court of competent jurisdiction. Any costs and expenses incurred by Holdback to Seller less the Accounting Firm pursuant to this Section 12.1 shall be borne by the Seller and the Purchaser equally. The date upon which such agreement is reached or upon which the Final Purchase Price is established, shall be herein called the “Final Settlement DateIndemnity Claim Holdback (defined below).” In the event
Appears in 2 contracts
Post-Closing Adjustments. As soon as practicable after the Closing(a) Azoff Management shall deliver to MSG Member, but in no event later than one hundred eighty within ten (18010) days thereafterfollowing the Closing Date, Seller shall prepare and deliver to Purchaser a final settlement statement notice (the “Final Settlement StatementClosing Adjustments Notice”) setting forth each adjustment or payment that was not finally determined as Azoff Management’s calculation of (i) the operating cash flows of the Contributed Business (calculated on the basis of actual cash received and actual cash expenses paid, in each case to the extent relating solely to the period on and after August 1, 2013) during the period August 1, 2013 through the close of business on the day prior to the Closing Date (the “Interim Period Statement”), and showing (ii) a statement of all amounts paid by AMM prior to August 1, 2013 to the calculation extent they relate solely to the period on or after August 1, 2013 under the Prepayment Arrangements (the “Prepayments” and, together with the net amount of operating cash reflected on the Interim Period Statement, the “Closing Adjustments”), together in each case with documentation reasonably necessary to support Azoff Management’s calculations and shall give MSG Member and its Affiliates access, during normal business hours and upon reasonable notice, to such adjustments and the resulting Final Purchase Price. Seller shall make its workpapers and other information available to Purchaser to review in order to confirm the adjustments shown on Seller’s draft. As soon as practicable after receipt of the Final Settlement Statement, but in no event later than sixty (60) days thereafter, Purchaser shall deliver to Seller a written report containing any changes that Purchaser proposes to make to the Final Settlement Statement. Any failure by Purchaser to deliver to Seller the written report detailing Purchaser’s proposed changes to the Final Settlement Statement within sixty (60) days following Purchaser’s receipt employees and books and records of the Final Settlement Statement shall be deemed an acceptance by Purchaser of the Final Settlement Statement Contributed Business as submitted by SellerMSG Member may reasonably request. The parties shall agree MSG Member must deliver written notice to Azoff Management setting forth in reasonable detail any objections it has with respect to the changes proposed by Purchaser, if any, Closing Adjustments no later than sixty thirty (6030) days after Seller receives from Purchaser the written report described above containing Purchaser’s proposed changes. If date on which Azoff Management delivered the Purchaser and the Seller cannot then agree upon the Final Settlement Statement, the determination of the amount of the Final Settlement Statement shall be submitted to a mutually agreed firm of independent public accountants Closing Adjustments Notice (the “Accounting FirmNotice of Objection”). The determination by If MSG Member does not so deliver the Accounting Firm Notice of Objection within such thirty (30) day period, the Closing Adjustments Notice shall be become conclusive and binding on the parties hereto for all purposes of this Agreement. If MSG Member does so deliver the Notice of Objection within such thirty (30) day period, then Azoff Management and MSG Member shall be enforceable against any party hereto use good faith efforts to resolve all the objections contained in any court the Notice of competent jurisdiction. Any costs and expenses incurred by the Accounting Firm pursuant to this Section 12.1 shall be borne by the Seller and the Purchaser equally. The date upon which such agreement is reached or upon which the Final Purchase Price is established, shall be herein called Objection (the “Final Settlement DateObjections”) within such thirty (30) day period.” In the event
Appears in 2 contracts
Samples: Loan Agreement (Madison Square Garden Co), Loan Agreement (MSG Spinco, Inc.)
Post-Closing Adjustments. As soon as practicable On or before 120 days after the Closing, but in no event later than one hundred eighty (180) days thereafterClosing Date, Seller with the assistance of Buyer’s staff and with access to such records as reasonably necessary, shall prepare and deliver to Purchaser Buyer a final settlement statement (the “Final Settlement Statement”) setting forth each adjustment to the Base Purchase Price or payment that was not finally determined as of the Closing (including payments pursuant to Section 4.8 relating to any Title Defect Reduction Amount and Section 5.5 relating to any Environmental Defect Reduction Amount) and showing the calculation of such adjustments adjustment and the resulting Purchase Price as finally adjusted (the “Final Purchase Price”). Seller The Final Settlement Statement shall make its workpapers set forth all Xxxxx (on a Well-by-Well or property-by-property basis) and other information available pipeline imbalances for which no adjustments to Purchaser to review the Base Purchase Price were made in order to confirm the adjustments shown on Seller’s draftPreliminary Settlement Statement. As soon as practicable after receipt of the Seller’s proposed Final Settlement Statement, but in no any event later than sixty (60) on or before 30 days thereafterafter receipt of Seller’s proposed Final Settlement Statement, Purchaser Buyer shall deliver to Seller a written report containing any changes that Purchaser Buyer proposes to make to the Final Settlement Statement. Any Buyer’s failure by Purchaser to deliver to Seller the a written report detailing Purchaser’s proposed changes to the proposed Final Settlement Statement within sixty (60) days following Purchaser’s receipt of the Final Settlement Statement such 30 day period shall be deemed an acceptance by Purchaser Buyer of the Final Settlement Statement as submitted by Seller. The parties Parties shall attempt in good faith to agree with respect to the changes proposed by PurchaserBuyer, if any, no later than sixty (60) 30 days after receipt by Seller receives from Purchaser of Buyer’s comments on the written report described above containing Purchaser’s proposed changes. If the Purchaser and the Seller cannot then agree upon the Final Settlement Statement, the determination of the amount of the Final Settlement Statement shall be submitted to a mutually agreed firm of independent public accountants (the “Accounting Firm”). The determination by the Accounting Firm shall be conclusive and binding on the parties hereto and shall be enforceable against any party hereto in any court of competent jurisdiction. Any costs and expenses incurred by the Accounting Firm pursuant to this Section 12.1 shall be borne by the Seller and the Purchaser equally. The date upon which such agreement is reached or upon which the Final Purchase Price is established, established shall be herein called the “Final Settlement Date.” In If the eventFinal Purchase Price is more than the Closing Amount plus the Deposit plus the amount deposited into the Defect Escrow Account at Closing, Buyer shall pay Seller the amount of such difference. If the Final Purchase Price is less than the Closing Amount plus the Deposit plus the amount deposited into the Defect Escrow Account at Closing, Seller shall pay to Buyer the amount of such difference. Any such payment by Buyer or Seller shall be by wire transfer in immediately available funds within 5 Business Days after the Final Settlement Date. No further adjustments to the Base Purchase Price shall be made.
Appears in 2 contracts
Samples: Purchase and Sale Agreement (Callon Petroleum Co), Purchase and Sale Agreement (Cimarex Energy Co)
Post-Closing Adjustments. As soon as practicable after On or before the Closing, but in no event later than one hundred eighty third (1803rd) days thereafterBusiness Day following the expiration of the Cure Period, Seller shall prepare and deliver to Purchaser Buyer, in accordance with this Agreement and generally accepted accounting principles, a final settlement statement (the “Final Settlement Statement”) setting forth each adjustment or payment to the Purchase Price that was not finally determined as of included in the Closing Preliminary Settlement Statement and showing the calculation of such adjustments, which adjustments shall be in accordance with the principles of this Agreement, and based to the resulting Final Purchase Price. Seller shall make its workpapers extent possible on actual credits, charges, receipts and other information available items before and after the Effective Time. All adjustments on the Final Settlement Statement shall be calculated on an accrual basis net to Purchaser to review in order to confirm the adjustments shown on Seller’s draftinterest in the Properties. As soon as practicable after Within sixty (60) days of receipt of the Final Settlement StatementStatement (the “Audit Period”), but in no event later than sixty (60) days thereafter, Purchaser Buyer shall deliver to Seller a written report containing any changes that Purchaser Buyer proposes to make be made to the Final Settlement Statement. Any failure by Purchaser to deliver to During the Audit Period, Seller the written report detailing Purchaser’s proposed changes to the Final Settlement Statement within sixty (60) days following Purchaser’s receipt of the Final Settlement Statement shall be deemed an acceptance by Purchaser of provide Buyer with supporting documentation for all adjustments set forth in the Final Settlement Statement as submitted reasonably requested by SellerBuyer. The parties Parties shall negotiate in good faith and undertake to agree with respect to the changes proposed by Purchaser, if any, amounts due pursuant to such Final Settlement Statement no later than sixty thirty (6030) days after Seller receives from Purchaser the Buyer’s submission of its written report described above containing Purchaser’s proposed changes. If the Purchaser and the hereunder to Seller cannot then agree upon the Final Settlement Statement, the determination of the amount of the Final Settlement Statement shall be submitted to a mutually agreed firm of independent public accountants (the “Accounting Firm”). The determination by the Accounting Firm shall be conclusive and binding on the parties hereto and shall be enforceable against any party hereto in any court of competent jurisdiction. Any costs and expenses incurred by the Accounting Firm pursuant to this Section 12.1 shall be borne by the Seller and the Purchaser equally. The date upon which such agreement is reached or upon which the Final Purchase Price is established, shall be herein called the “Final Settlement Date”). Buyer shall, within seven (7) days of the Final Settlement Date, pay to Seller, or Seller shall pay to Buyer, whatever the case may be, in immediately available funds the final settlement adjustment amount set forth therein. Any disputed items that cannot be resolved by the mutual agreement of the Parties, shall be removed from the Final Settlement Statement and submitted to arbitration to a mutually agreeable arbitrator selected by the Parties and resolved as if such disputed item was a Disputed Matter in accordance with the procedures set forth in Article XI. Notwithstanding anything to the contrary set forth herein, there shall be no further Purchase Price adjustments pursuant to Section 2.2 for any item not included in the Final Settlement Statement delivered by Seller (or Buyer’s written report, if any, delivered with respect thereto) in accordance with the provisions of this Section 9.2.” In the event
Appears in 2 contracts
Samples: Purchase and Sale Agreement (Sandridge Energy Inc), Purchase and Sale Agreement
Post-Closing Adjustments. As soon as practicable after the Closingclosing, but and in no any event later than one hundred eighty within sixty (18060) days thereafterafter Closing, Seller shall prepare and deliver to Purchaser Purchaser, in accordance with this Agreement and generally accepted accounting principles, a final settlement statement (the “"Final Settlement Statement”") setting forth each adjustment or payment pursuant to Paragraph 4 hereof that was not finally determined as of the Closing ("Post-Closing Adjustments") and showing the calculation of such adjustments Post-Closing Adjustments and the resulting Final Purchase Priceaggregate amount thereof. Seller shall make its workpapers and other information available to Purchaser to review in order to confirm the adjustments shown on Seller’s draft. As soon as practicable Within ten (10) business days after receipt of the Final Settlement Statement, but in no event later than sixty (60) days thereafter, Purchaser shall deliver to Seller a written report containing any changes that Purchaser proposes to make be made to the Final Settlement Statement. Any failure by Purchaser The Parties undertake to deliver to Seller the written report detailing Purchaser’s proposed changes to the Final Settlement Statement within sixty (60) days following Purchaser’s receipt of the Final Settlement Statement shall be deemed an acceptance by Purchaser of the Final Settlement Statement as submitted by Seller. The parties shall agree with respect to the changes proposed by Purchaser, if any, amounts of such Post-Closing Adjustments no later than sixty ninety (6090) days after Seller receives from Purchaser the written report described above containing Purchaser’s proposed changes. If the Purchaser and the Seller cannot then agree upon the Final Settlement Statement, the determination of the amount of the Final Settlement Statement shall be submitted to a mutually agreed firm of independent public accountants (the “Accounting Firm”). The determination by the Accounting Firm shall be conclusive and binding on the parties hereto and shall be enforceable against any party hereto in any court of competent jurisdiction. Any costs and expenses incurred by the Accounting Firm pursuant to this Section 12.1 shall be borne by the Seller and the Purchaser equallyClosing Date. The date upon which such agreement is reached or upon which the Final Purchase Price is established, aggregate amount of the adjustments are finally established shall be herein called the “"Final Settlement Date.” In " Seller shall pay to Purchaser, or vice versa, as the eventcase may be, within ten (10) business days after the Final Settlement Date the amount of such adjustments (as finally established), by means of wire transfer in immediately available funds or by means of a certified bank check. Without limiting the foregoing obligation of Seller to timely pay, Purchaser may elect to offset its obligation under the Notes by any sums which may be due and owing hereunder by Seller to Purchaser.
Appears in 2 contracts
Samples: Purchase and Sale Agreement (Queen Sand Resources Inc), Purchase and Sale Agreement (Queen Sand Resources Inc)
Post-Closing Adjustments. As soon as practicable Within 90 days after the ClosingClosing Date, but in no event later than one hundred eighty (180) days thereafter, Seller Sellers shall prepare and deliver to Purchaser Buyer a final settlement statement (the “Final Settlement "Closing Statement”") setting of (i) the net amount of the Current Assets minus the Current Liabilities ("Net Working Capital") as at the Closing Date and (ii) capital expenditures with respect to the Business and depreciation with respect to the Business during the period from the date hereof to and including the Closing Date ("Measurement Period"), in each case in accordance with the accounting principles and assumptions set forth each adjustment or in, and in the form provided in, the document entitled Financial Principles which is included as Schedule 2.3.3 hereto (the "Financial Principles"). If Net Working Capital is more than $1,600,000, the Closing Purchase Price shall be increased by the amount by which Net Working Capital exceeds $1,600,000. If Net Working Capital is less than $1,600,000, the Closing Purchase Price shall be decreased by the amount by which Net Working Capital is less than $1,600,000. If capital expenditures with respect to the Business during the Measurement Period exceed depreciation with respect to the Business during the Measurement Period, the Closing Purchase Price shall be increased by the amount by which such capital expenditures exceed such depreciation, but this amount shall not exceed $1,000,000. If depreciation with respect to the Business during the Measurement Period exceeds capital expenditures with respect to the Business during the Measurement Period, the Closing Purchase Price shall be decreased by the amount by which such depreciation exceeds such capital expenditures. If the Purchase Price, as adjusted as provided above, exceeds the Closing Purchase Price, Buyer shall pay the amount of such excess to Sellers. If the Purchase Price, as adjusted as provided above, is less than the Closing Purchase Price, then Sellers shall pay the amount of such deficit to Buyer. Any such payment that was not finally determined as shall be made by wire transfer of immediately available funds within 15 days after Buyer's written notification to Sellers of Buyer's acceptance of the Closing Statement or within 15 days after Buyer is deemed to have accepted the Closing Statement as provided in this Section 2.3.3. The amount of any payment required by this Section 2.3.3 shall bear interest from the Closing Date through the date of actual payment at the rate of 30-day LIBOR plus 50 basis points. After delivery of the Closing Statement, Sellers shall permit Buyer and showing the calculation of such adjustments Buyer's independent accountants access, upon reasonable notice and the resulting Final Purchase Price. Seller shall make its workpapers and other information available to Purchaser during reasonable business hours, to review in order their work papers and all books and records of Sellers relevant to the items covered by the Closing Statement, and Sellers shall permit such accountants to perform such tests as they may reasonably require to confirm the adjustments shown accuracy of such items. In the event Buyer disputes any matter or matters on Seller’s draft. As soon as practicable the Closing Statement, Buyer may within forty-five (45) days after receipt the delivery of the Final Settlement StatementClosing Statement notify Sellers of such dispute in a writing setting forth in reasonable detail the nature of such dispute and the facts upon which it is based, but in no event later together with the application or treatment proposed by Buyer and the reasons supporting the use of such application or treatment rather than sixty (60) days thereafter, Purchaser shall deliver that used by Sellers. If both the Closing Statement as delivered by Sellers to Seller Buyer and the Closing Statement as proposed by Buyer would require a written report containing any changes that Purchaser proposes to make payment by the same party pursuant to the Final Settlement Statement. Any failure by Purchaser to deliver to Seller the written report detailing Purchaser’s proposed changes to the Final Settlement Statement within sixty (60) days following Purchaser’s receipt second paragraph of this Section 2.3.3, then such party shall make a payment of the Final Settlement lesser amount reflected on the respective Closing Statements within 15 days of delivery of Buyer's proposed Closing Statement to Sellers, together with interest thereon as provided by such paragraph. If no such notice is given by Buyer within the time specified, the Closing Statement shall be deemed an acceptance accepted by Purchaser Buyer. If the parties have not resolved all matters in dispute relating to the Closing Statement within forty-five (45) days after Sellers' receipt of such notice from Buyer, then any party may notify the Final Settlement Statement as submitted others in writing that it elects to submit all remaining issues to resolution by Sellera neutral accounting firm of national reputation. The Within ten (10) days after receipt of such notice of election by a party, the parties shall agree with respect to upon the changes proposed by Purchaserselection of a neutral accounting firm or, if anythey are unable to agree, no later than sixty (60) days after Seller receives Sellers and Buyer shall each submit the names of two neutral firms and a firm shall be selected at random from Purchaser among them. A firm shall be considered neutral if it has not within the written report described above containing Purchaser’s proposed changes. If the Purchaser past three years performed and the Seller candoes not then agree upon the Final Settlement Statementcurrently perform or contemplate performing any accounting, the determination consulting or other services for any of the amount parties and their respective Affiliates having an aggregate value in excess of the Final Settlement Statement shall be submitted to a mutually agreed firm of independent public accountants (the “Accounting Firm”). The determination by the Accounting Firm shall be conclusive and binding on the parties hereto and shall be enforceable against any party hereto in any court of competent jurisdiction. Any costs and expenses incurred by the Accounting Firm pursuant to this Section 12.1 shall be borne by the Seller and the Purchaser equally. The date upon which such agreement is reached or upon which the Final Purchase Price is established, shall be herein called the “Final Settlement Date$250,000.” In the event
Appears in 2 contracts
Samples: Asset Sale and Purchase Agreement (Southwestern Energy Co), Asset Sale and Purchase Agreement (Atmos Energy Corp)
Post-Closing Adjustments. As soon as practicable On or before the business day next following the ninetieth (90th) day after the Closing, but in no event later than one hundred eighty (180) days thereafter, Seller shall prepare and deliver to Purchaser Buyer, in accordance with this Agreement and generally accepted accounting principles, a final settlement statement (herein called the “"Final Settlement Statement”") setting forth each adjustment or payment to the Purchase Price that was not finally determined as of the Closing and showing the calculation of such adjustments, which adjustments and shall be in accordance with the resulting Final Purchase Priceprinciples of this Agreement. Seller shall make its workpapers and other information available to Purchaser to review in order to confirm the adjustments shown on Seller’s draft. As soon as practicable after Within thirty (30) days of receipt of the Final Settlement Statement, but in no event later than sixty (60) days thereafter, Purchaser Buyer shall deliver to Seller a written report containing any changes that Purchaser Buyer proposes to make be made to the Final Settlement Statement. Any failure by Purchaser to deliver to Seller the written report detailing Purchaser’s proposed changes to the Final Settlement Statement within sixty (60) days following Purchaser’s receipt of the Final Settlement Statement shall be deemed an acceptance by Purchaser of the Final Settlement Statement as submitted by Seller. The parties shall negotiate in good faith and undertake to agree with respect to the changes proposed by Purchaser, if any, amounts due pursuant to such post-Closing adjustments no later than sixty (6030) days after Seller receives from Purchaser the Buyer's submission of its written report described above containing Purchaser’s proposed changeshereunder to Seller. If the Purchaser and the Seller cannot then agree upon the Final Settlement Statement, the determination of the amount of Any disputed items shall be removed from the Final Settlement Statement and thereafter shall be treated as a disputed matter and if the dispute cannot be resolved by agreement, the matter shall be submitted to a mutually agreed firm of independent public accountants (arbitration in accordance with the “Accounting Firm”). The determination by the Accounting Firm shall be conclusive and binding on the parties hereto and shall be enforceable against any party hereto procedures set forth in any court of competent jurisdiction. Any costs and expenses incurred by the Accounting Firm pursuant to this Section 12.1 shall be borne by the Seller and the Purchaser equally10.17. The date upon which such agreement (the "Final Settlement Agreement") is reached or upon which the Final Purchase Price is established, shall be herein called the “"Final Settlement Date" which shall in no event be more than sixty (60) days following the date such Final Settlement Statement was received by Buyer. In that event, Buyer shall, within seven (7) days of the execution of the Final Settlement Agreement, pay to Seller, or Seller shall pay to Buyer, whatever the case may be, in immediately available funds the amount of such difference.” In the event
Appears in 2 contracts
Samples: Purchase and Sale Agreement (GMX Resources Inc), Purchase and Sale Agreement (GMX Resources Inc)
Post-Closing Adjustments. As soon as practicable after the Closing, but in no event later than on or before one hundred eighty twenty (180120) days thereafterafter Closing, the Seller Representative shall prepare and deliver to Purchaser Buyer a final settlement statement (the “Final Settlement Statement”) setting forth each adjustment or payment that was not finally determined as of the Closing and showing the calculation of such adjustments adjustment and the resulting final Purchase Price, including each final Per Seller Purchase Price (the “Final Purchase Price. Seller shall make its workpapers and other information available to Purchaser to review in order to confirm the adjustments shown on Seller’s draft”). As soon as practicable after receipt of the Seller Representative’s proposed Final Settlement Statement, but in no event later than sixty on or before thirty (6030) days thereafterafter such receipt, Purchaser Buyer shall deliver to the Seller Representative a written report containing any changes that Purchaser Buyer proposes to make to the Final Settlement Statement. Any Buyer’s failure by Purchaser to deliver to the Seller the Representative a written report detailing Purchaser’s proposed changes to the proposed Final Settlement Statement within sixty (60) days following Purchaser’s receipt of the Final Settlement Statement by that date shall be deemed an acceptance by Purchaser Buyer of the Final Settlement Statement as submitted by Sellerthe Seller Representative. The parties Buyer and the Seller Representative shall endeavor to agree with respect to the changes proposed by PurchaserBuyer, if any, no later than sixty thirty (6030) days after Seller receives from Purchaser the written report described above containing Purchaser’s proposed changes. If the Purchaser and receipt by the Seller cannot then agree upon Representative of Buyer’s comments to the proposed Final Settlement Statement, the determination of the amount of the Final Settlement Statement shall be submitted to a mutually agreed firm of independent public accountants (the “Accounting Firm”). The determination by the Accounting Firm shall be conclusive and binding on the parties hereto and shall be enforceable against any party hereto in any court of competent jurisdiction. Any costs and expenses incurred by the Accounting Firm pursuant to this Section 12.1 shall be borne by the Seller and the Purchaser equally. The date upon which such agreement is reached or upon which the Final Purchase Price is established, established for the Transaction shall be herein called the “Final Settlement Date.” In If the eventFinal Purchase Price allocable to any Seller is more than the relevant Per Seller Closing Amount, Buyer shall pay such Seller the amount of such difference. If the Final Purchase Price allocable to any Seller is less than the relevant Per Seller Closing Amount, such Seller shall pay to Buyer the amount of such difference. Any payment by Buyer or any Seller shall be by wire transfer in immediately available funds. Any such payment shall be within five (5) days of the Final Settlement Date.
Appears in 2 contracts
Samples: Purchase and Sale Agreement (Venoco, Inc.), Purchase and Sale Agreement (Aspen Exploration Corp)
Post-Closing Adjustments. As soon as practicable after the Closing, but in no event later than on or before one hundred eighty twenty (180120) days thereafterafter Closing, Seller Seller, with the assistance of Buyer's staff and with access to such records as necessary, shall prepare and deliver to Purchaser Buyer a final settlement statement (the “Final Settlement Statement”"FINAL SETTLEMENT STATEMENT") setting forth each adjustment or payment that was not finally determined as of the Closing and showing the calculation of such adjustments adjustment and the resulting final purchase price (the "FINAL PURCHASE PRICE"). The Final Settlement Statement shall set forth all well (on a well-by-well basis) and pipeline imbalances for which no Purchase Price. Seller shall make its workpapers and other information available to Purchaser to review Price adjustments were made in order to confirm the adjustments shown on Seller’s draftPreliminary Settlement Statement. As soon as practicable after receipt of the Seller's proposed Final Settlement Statement, but in no event later than sixty on or before fifteen (6015) days thereafterafter receipt of Seller's proposed Final Settlement Statement, Purchaser Buyer shall deliver to Seller a written report containing any changes that Purchaser Buyer proposes to make to the Final Settlement Statement. Any Buyer's failure by Purchaser to deliver to Seller the a written report detailing Purchaser’s proposed changes to the proposed Final Settlement Statement within sixty (60) days following Purchaser’s receipt of the Final Settlement Statement by that date shall be deemed an acceptance by Purchaser Buyer of the Final Settlement Statement as submitted by Seller. The parties shall agree with respect to the changes proposed by PurchaserBuyer, if any, no later than sixty fifteen (6015) days after receipt by Seller receives from Purchaser of Buyer's comments to the written report described above containing Purchaser’s proposed changes. If the Purchaser and the Seller cannot then agree upon the Final Settlement Statement, the determination of the amount of the Final Settlement Statement shall be submitted to a mutually agreed firm of independent public accountants (the “Accounting Firm”). The determination by the Accounting Firm shall be conclusive and binding on the parties hereto and shall be enforceable against any party hereto in any court of competent jurisdiction. Any costs and expenses incurred by the Accounting Firm pursuant to this Section 12.1 shall be borne by the Seller and the Purchaser equally. The date upon which such agreement is reached or upon which the Final Purchase Price is established, established for a transaction shall be herein called the “"FINAL SETTLEMENT DATE." If the Final Purchase Price is more than the Closing Amount, Buyer shall pay Seller the amount of such difference. If the Final Purchase Price is less than the Closing Amount, Seller shall pay to Buyer the amount of such difference. Any such payment by Buyer or Seller shall be by wire transfer in immediately available funds within five (5) days of the Final Settlement Date.” In the event
Appears in 1 contract
Post-Closing Adjustments. (a) As soon promptly as practicable after the Closing, but in no event later than one hundred eighty ninety (18090) days thereafterafter the Closing Date, Seller Buyer shall prepare in good faith and deliver to Purchaser the Representative a final settlement written statement (the “Final Settlement Post-Closing Adjustment Statement”) setting forth each adjustment or payment that was not finally determined as Buyer’s calculation of (i) the Closing Consideration, including the Closing Net Working Capital Adjustment, Closing Indebtedness, Closing Cash, Equity Holder Expenses and showing the Post-Closing Adjustment Amount, and (ii) the Blocker Seller Closing Consideration, including the Closing Blocker Indebtedness, Closing Blocker Cash and the Post-Closing Blocker Adjustment Amount, which in each case of (i) and (ii) shall be calculated on a basis consistent with this Agreement, including, as applicable, Exhibit A and include reasonable supporting detail to evidence the calculation of such adjustments and the resulting Final Purchase Price. Seller shall make its workpapers and other information available amounts contained therein; provided, that, Buyer may elect not to Purchaser to review deliver a Post-Closing Adjustment Statement, in order to confirm the adjustments shown on Seller’s draft. As soon as practicable after receipt of which case the Final Settlement Statement, but in no event later than sixty Closing Consideration and Final Blocker Seller Closing Consideration (60each as finally determined pursuant to this Section 3.02) days thereafter, Purchaser shall deliver to Seller a written report containing any changes that Purchaser proposes to make to the Final Settlement Statement. Any failure by Purchaser to deliver to Seller the written report detailing Purchaser’s proposed changes to the Final Settlement Statement within sixty (60) days following Purchaser’s receipt of the Final Settlement Statement shall be deemed an acceptance to equal the Closing Consideration and the Blocker Seller Closing Consideration. The Post-Closing Adjustment Statement will be prepared without giving effect to any financing obtained or to be obtained by Purchaser Buyer or any of its Affiliates (including, following the Closing, the Company) in connection herewith or any other transaction entered into by Buyer or any of its Affiliates (including, following the Closing, the Company) in connection with the consummation of the Final Settlement Statement as submitted by Sellertransactions contemplated hereby. The parties shall agree Post-Closing Adjustment Statement will entirely disregard (i) any purchase accounting or similar adjustments resulting from the consummation of the transactions contemplated by this Agreement, (ii) any of the plans, transactions, or changes (including in accounting, Inventory or Tax practices) that Buyer or any of its Affiliates intends to initiate or make or cause to be initiated or made after the Closing Date with respect to the changes proposed by PurchaserCompany, if any, no later than sixty its assets or its business and (60iii) days after Seller receives from Purchaser the written report described above containing Purchaser’s proposed changesany facts or circumstances that are unique or particular to Buyer or any of its Affiliates or any of their respective assets or liabilities. If Buyer does not deliver the Purchaser Post-Closing Adjustment Statement to the Representative within such 90-day period, then Buyer shall be deemed to have accepted the Estimated Statement and the Seller cannot then agree upon Company’s calculations set forth on the Final Settlement Estimated Statement, the determination of the amount of the Final Settlement Statement which shall be submitted to a mutually agreed firm of independent public accountants (the “Accounting Firm”). The determination by the Accounting Firm shall be conclusive conclusive, final and binding on all of the parties hereto and shall be enforceable against any party hereto in any court of competent jurisdiction. Any costs and expenses incurred by the Accounting Firm pursuant to this Section 12.1 shall be borne by the Seller and the Purchaser equally. The date upon which such agreement is reached or upon which the Final Purchase Price is established, shall be herein called the “Final Settlement Datefor all purposes hereunder.” In the event
Appears in 1 contract
Samples: Securities Purchase Agreement (e.l.f. Beauty, Inc.)
Post-Closing Adjustments. As soon as practicable after For purposes of this Article XI, all items described in this Article XI and reflected on the ClosingClosing Statement are deemed the estimates of the prorations, but credits and other adjustments subject to adjustment in accordance with this Section 11.2.22. Except for Taxes which are reprorated in accordance with Section 11.2.1, no event later than one hundred eighty twenty (180120) days thereafterafter Closing, Purchaser shall prepare and deliver to Seller a final Closing Statement (the “Final Statement”), which shall correct the estimates and (if necessary) other amounts used in the Closing Statement, as adjusted in accordance with both Parties’ post-Closing examination of the Books and Records of the Property and on facts discovered by either Party after Closing, and Purchaser shall provide Seller with reasonable access to the post-Closing Books and Records for the purpose of conducting such examination; provided, however that if Purchaser does not prepare and deliver to Seller a Final Statement on or before the ninetieth (90th) day after Closing, Seller shall have the right, but not the obligation, to prepare and deliver to Purchaser a final settlement statement Final Statement no later than one hundred twenty (120) days after the Closing. Upon delivery by either Party to the other Party of a Final Statement, the Parties shall act reasonably and in good faith to reconcile and agree upon the correct Final Statement. In the event either Party has submitted to the other Party a Final Statement and the Parties have not agreed upon the Final Statement within thirty (30) days, either Party may, by providing prior written notice to the other Party, refer any items of the Final Statement which have not been agreed upon (the “Final Settlement StatementUnresolved Items”) setting forth each adjustment to be resolved by a nationally recognized accounting firm mutually agreed upon by the Parties (the “Arbiter”) in accordance with Section 11.6. Within ten (10) Business Days after Seller and Purchaser have agreed to the Final Statement or payment that was not finally determined the Final Statement has been resolved in accordance with Section 11.6, as applicable, Purchaser or Seller (as the case may be) shall pay to the other the net amount owing on the final settlement of the Closing and showing the calculation of such adjustments and the resulting Final Purchase Price. Seller shall make its workpapers prorations, credits and other information available to Purchaser to review in order to confirm adjustments as shown by the adjustments shown on Seller’s draft. As soon as practicable after receipt of the agreed or resolved Final Settlement Statement, but in no event later than sixty (60) days thereafter, Purchaser shall deliver to Seller a written report containing any changes that Purchaser proposes to make to the Final Settlement Statement. Any failure by Purchaser This Section 11.2.22, together with all subsections of Section 11.2 as are necessary to deliver to Seller the written report detailing Purchaser’s proposed changes to the Final Settlement Statement within sixty (60) days following Purchaser’s receipt of the Final Settlement Statement shall be deemed an acceptance by Purchaser of the Final Settlement Statement as submitted by Seller. The parties shall agree with respect to the changes proposed by Purchaser, if any, no later than sixty (60) days after Seller receives from Purchaser the written report described above containing Purchaser’s proposed changes. If the Purchaser and the Seller cannot then agree upon the Final Settlement Statement, the determination of the amount of the Final Settlement Statement shall be submitted to a mutually agreed firm of independent public accountants (the “Accounting Firm”). The determination by the Accounting Firm shall be conclusive and binding on the parties hereto and shall be enforceable against any party hereto in any court of competent jurisdiction. Any costs and expenses incurred by the Accounting Firm pursuant give effect to this Section 12.1 11.2.22, shall be borne by survive the Seller Closing until the Final Statement is agreed upon or resolved as provided in this Section 11.2.22 (and Section 11.6, as applicable) and the Purchaser equallyfinal true-up payment has been made pursuant thereto. The date upon which such agreement is reached or upon which the Final Purchase Price is established, shall be herein called the “Final Settlement Date.” In the event2230752.03F-NYCSR03A - MSW
Appears in 1 contract
Samples: Purchase and Sale Agreement (Braemar Hotels & Resorts Inc.)
Post-Closing Adjustments. As soon promptly as is practicable after the Closing, but and in no any event later than one hundred eighty (180) days thereafter, Seller shall prepare and deliver to Purchaser a final settlement statement (the “Final Settlement Statement”) setting forth each adjustment or payment that was not finally determined as of the Closing and showing the calculation of such adjustments and the resulting Final Purchase Price. Seller shall make its workpapers and other information available to Purchaser to review in order to confirm the adjustments shown on Seller’s draft. As soon as practicable after receipt of the Final Settlement Statement, but in no event later than sixty (60) days thereafter, Purchaser shall deliver to Seller a written report containing any changes that Purchaser proposes to make to the Final Settlement Statement. Any failure by Purchaser to deliver to Seller the written report detailing Purchaser’s proposed changes to the Final Settlement Statement within sixty (60) days following Purchaser’s receipt the Closing, Seller will prepare and deliver to Buyer a balance sheet dated as of the Closing Date (the "Final Balance Sheet") and a statement setting forth the proposed calculation on the Net Current Asset Value (the "Statement"), reviewed by BDO Seidman. The Final Balance Sheet and Statemxxx xxxll be prepared in accordance with GAAP and on a basis consistent with the audited balance sheet of Seller as at December 31, 1994 and shall be reviewed by BDO Seidman. Buyer shall permit Seller and BDO Xxxxxxx access to all of the accounting recoxxx xx the Business in Buyer's possession as may be necessary for the preparation and certification of such balance sheet and statement. Seller shall permit Buyer and its independent certified public accountant to review all accounting records and all work papers and computations used in the preparation of the Final Settlement Balance Sheet and Statement. If Buyer does not notify Seller within thirty (30) days of receiving the Final Balance Sheet and Statement that Buyer disagrees with the calculation of the Net Current Asset Value reflected therein, then the Net Current Asset Value shall be deemed an acceptance by Purchaser the amount reflected in the Statement. If Buyer notifies Seller that Buyer disagrees with such calculation within such thirty (30) day period, Seller and Buyer shall negotiate in good faith to resolve the dispute. If, within fifteen (15) days from the date notice of dispute is given, Seller and Buyer cannot agree on the resolution of the Final Settlement Statement as submitted dispute, then the dispute shall be resolved a "Big 6" accounting firm (other than KPMG Peat Marwick) chosen by Seller. The parties shall agree with respect to Seller and Buyer, provided that, in the changes proposed by Purchaser, if any, no later than sixty (60) days after event that Seller receives from Purchaser the written report described above containing Purchaser’s proposed changes. If the Purchaser and the Seller Buyer cannot then agree upon the Final Settlement Statementon a firm, the determination Seller and Buyer will each choose two of the amount of the Final Settlement Statement shall firms referenced previously in this sentence and a firm will be submitted to chosen from those four by a mutually agreed firm of independent public accountants (the “Accounting Firm”)random draw. The determination by the Accounting Firm shall be conclusive and binding on the parties hereto and shall be enforceable against any party hereto in any court of competent jurisdiction. Any costs and expenses incurred by the Accounting Firm pursuant to this Section 12.1 shall be borne by the Seller and the Purchaser equally. The date upon which such agreement is reached or upon which the Final Purchase Price is established, shall be herein called the “Final Settlement Date1.5.” In the event
Appears in 1 contract
Post-Closing Adjustments. As soon as practicable after the Closing(a) Acquiror shall deliver to Seller, but in no event later than one hundred eighty within ninety (18090) days thereafterfollowing the Closing Date, Seller shall prepare and deliver to Purchaser a final settlement statement (the “Final Settlement Statement”) notice setting forth Acquiror's calculation of each adjustment or payment that was not finally determined as of the Closing Funded Indebtedness and showing Closing Net Working Capital and the calculation Post-Closing Adjustment Amount based thereon (assuming each of the same had been finally determined pursuant to this Section 2.4) (“Post-Closing Adjustment Notice”), together with documentation reasonably necessary to support Acquiror's calculations thereof and shall give Seller and its Representatives access, during normal business hours and upon reasonable notice, to such of the employees and books and records of the Company and the Subsidiaries as Seller may reasonably request as part of its review of such adjustments and Post-Closing Adjustment Notice. Acquiror may not amend, supplement or otherwise change any aspect of the resulting Final Purchase PricePost-Closing Adjustment Notice after it has been delivered to Seller without Seller's consent. Seller shall make its workpapers and other information available must deliver written notice to Purchaser to review Acquiror setting forth in order to confirm the adjustments shown on Seller’s draft. As soon as practicable after receipt of the Final Settlement Statement, but in no event later than sixty (60) days thereafter, Purchaser shall deliver to Seller a written report containing reasonable detail any changes that Purchaser proposes to make to the Final Settlement Statement. Any failure by Purchaser to deliver to Seller the written report detailing Purchaser’s proposed changes to the Final Settlement Statement within sixty (60) days following Purchaser’s receipt of the Final Settlement Statement shall be deemed an acceptance by Purchaser of the Final Settlement Statement as submitted by Seller. The parties shall agree objections it has with respect to the changes proposed by Purchaser, if any, Post-Closing Adjustment Notice no later than sixty thirty (6030) days after Seller receives from Purchaser the written report described above containing Purchaser’s proposed changes. If date on which Acquiror delivered the Purchaser and the Seller cannot then agree upon the Final Settlement Statement, the determination of the amount of the Final Settlement Statement shall be submitted to a mutually agreed firm of independent public accountants Post-Closing Adjustment Notice (the “Accounting FirmNotice of Objection”). The determination by If Seller does not so deliver the Accounting Firm Notice of Objection within such thirty (30) day period, the Post-Closing Adjustment Notice shall be become conclusive and binding on the parties hereto for all purposes of this Agreement. If Seller does so deliver the Notice of Objection within such thirty (30) day period, then (i) any aspect of the Post-Closing Adjustment Notice to which there is no objection in the Notice of Objection shall become conclusive and binding on the parties for all purposes of this Agreement and (ii) Acquiror and Seller shall use good faith efforts to resolve all the objections contained in the Notice of Objection (the “Objections”) within thirty (30) days after the date on which the Notice of Objection was delivered to Acquiror; provided, however, that notwithstanding the foregoing, if an Objection is resolved in accordance with this Section 2.4 and GAAP would require any changes to any other components of the Post-Closing Adjustment Notice as a result of such resolution, then such required changes shall be enforceable against any party hereto in any court made to such other components as part of competent jurisdiction. Any costs and expenses incurred by the Accounting Firm pursuant to this Section 12.1 shall be borne by the Seller and the Purchaser equally. The date upon which resolution of such agreement is reached or upon which the Final Purchase Price is established, shall be herein called the “Final Settlement DateObjection.” In the event
Appears in 1 contract
Samples: Purchase Agreement (Charter Communications, Inc. /Mo/)
Post-Closing Adjustments. As soon as practicable after the Closing, but in no any event later than within one hundred eighty and fifty (180150) days thereafter, Seller shall prepare and deliver to Purchaser prepare, in accordance with this Agreement, a final settlement statement (herein called the “Final Settlement Statement”) setting forth each adjustment or payment that was not finally determined as of the Closing Date and showing the calculation of the final settlement amount based on the Final Statement (the “Final Settlement Amount”). If and to the extent that Seller: (a) has the right to receive from third parties any accounts receivable related to the Properties, or (b) is obligated to pay to any third party any accounts payable, that in each case are attributable to the Properties and relate to time periods prior to the Effective Date, Seller shall have the right to include adjustments for such adjustments accounts payable and accounts receivable in the resulting calculation of the Final Purchase PriceSettlement Amount, in which event Seller shall provide to Buyer with the Final Statement supporting documentation reasonably satisfactory to Buyer relating to the accounts payable and accounts receivable, and Seller and Buyer shall enter into a mutually satisfactory assignment and assumption agreement pursuant to which Seller assigns such accounts receivable to Buyer and Buyer assumes such accounts payable. Seller shall make its workpapers submit the Final Statement and other information available reasonable supporting documentation to Purchaser Buyer and shall afford Buyer access to review in order to confirm the adjustments shown on Seller’s draftrecords pertaining to the computations contained in the Final Statement. As soon as practicable after receipt of the Final Settlement Statementstatement, but in no event later than sixty (60) days thereafter, Purchaser Buyer shall deliver to Seller a written report containing any changes that Purchaser Buyer proposes to make be made to the Final Settlement Statement. Any failure by Purchaser to deliver Buyer shall send to Seller the written report detailing Purchaser’s proposed changes to the Final Settlement Statement within sixty thirty (6030) days following Purchaserafter Buyer’s receipt from Seller of the Final Settlement Statement shall be deemed an acceptance by Purchaser of a written notice stating either that Buyer agrees with the Final Statement, or that Buyer disagrees with the Final Statement, in which case such notice shall describe in detail Buyer’s basis for any such disagreement and Buyer’s resulting calculation of a proposed Final Settlement Statement as submitted by SellerAmount. The If Buyer has so notified Seller of any disagreement regarding the Final Statement, the parties shall then attempt in good faith to agree with respect to the changes proposed by Purchaser, if any, no amounts due pursuant to such post-closing adjustment not later than sixty thirty (6030) days after Seller receives from Purchaser the written report described above containing PurchaserSeller’s proposed changesreceipt of Buyer’s notice of disagreement with Seller’s Final Statement. If the Purchaser and parties are unable to agree within such period, then either party may submit such dispute to arbitration in accordance with the Seller cannot then agree upon the Final Settlement Statement, the determination provisions of the amount of the Final Settlement Statement shall be submitted to a mutually agreed firm of independent public accountants (the “Accounting Firm”). The determination by the Accounting Firm shall be conclusive and binding on the parties hereto and shall be enforceable against any party hereto in any court of competent jurisdiction. Any costs and expenses incurred by the Accounting Firm pursuant to this Section 12.1 shall be borne by the Seller and the Purchaser equallyParagraph 32 hereof. The date upon which such agreement is reached or upon which the decision of the arbitrator(s) is rendered regarding the Final Purchase Price Settlement Amount is established, shall be herein called the “Final Settlement Date.” In Within two (2) days after the eventSettlement Date, Buyer shall pay to Seller or Seller shall pay to Buyer in immediately available funds the net amount due. Notwithstanding anything else in this Paragraph or in Paragraph 24 to the contrary, after Buyer or Seller has paid to the other the Final Settlement Amount, if any, owed pursuant to this Paragraph 26, neither party shall be entitled to any further adjustments or payments pursuant to this Agreement, with the exception of any amount to which a party becomes entitled pursuant to Paragraph 22.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Petrohawk Energy Corp)
Post-Closing Adjustments. As soon as practicable after the Closing, but in no event later than one hundred eighty On or before ninety (18090) days thereafter, Seller shall prepare and deliver to Purchaser a final settlement statement following the Closing Date (the “Final Settlement StatementDate”) setting forth each adjustment ), the Parties shall undertake to agree with respect to the adjustments or payment payments that was were not finally determined as of Closing, and the amount due from Buyer or Seller, as the case may be, pursuant to the post-Closing adjustment herein. Subject to Section 3(d), appropriate post-Closing adjustments shall include, only to the extent asserted in writing by Buyer to Seller prior to the sixtieth (60th) day following the Closing and showing the calculation of such adjustments and the resulting Final Purchase Price. Seller shall make its workpapers and other information available to Purchaser to review Date, any decrease in order to confirm the adjustments shown on Seller’s draft. As soon Net Revenue Interest in an Oil and Gas Interest or any increase in Seller’s obligation to bear costs and expenses in excess of the Working Interest in an Oil and Gas Interest as practicable after receipt of set forth in Exhibit B (without a corresponding increase in Seller's Net Revenue Interest), resulting from any Title Defect not cured to Buyer’s reasonable satisfaction by the Final Settlement StatementDate, but with the adjustment to be calculated on the basis of the Net Revenue Interest and/or Working Interest in the affected Oil and Gas Interest to which Seller held Defensible Title on the Closing Date and/or its allocated value set forth on Exhibit D; provided, that in no event later than sixty (60) days thereafter, Purchaser shall deliver to Seller a written report containing an adjustment for any changes that Purchaser proposes to make to Title Defect exceed the Final Settlement Statement. Any failure by Purchaser to deliver to Seller the written report detailing Purchaser’s proposed changes to the Final Settlement Statement within Allocated Value for such affected Oil and Gas Interest as set forth on Exhibit D. On or before sixty (60) days following Purchaserthe Closing Date, Seller shall provide Buyer with a final Closing Statement setting forth the post-Closing adjustments to the preliminary Closing Statement (the “Final Closing Statement”). Seller shall provide Buyer access to such of Seller’s receipt records as may be reasonably necessary to verify the post-Closing adjustments shown on the Final Closing Statement. Payment by Buyer or Seller shall be made in immediately available funds within five (5) days of such agreement. If the Final Closing Statement has not been agreed upon on or before the Final Settlement Statement shall be deemed an acceptance by Purchaser of the Final Settlement Statement as submitted by Seller. The parties shall agree with respect to the changes proposed by Purchaser, if any, no later than sixty (60) days after Seller receives from Purchaser the written report described above containing Purchaser’s proposed changes. If the Purchaser and the Seller cannot then agree upon the Final Settlement StatementDate, the determination of the amount of the Final Settlement Statement matters that remain in dispute shall be submitted to a mutually agreed accounting firm of independent public accountants (the “Accounting FirmClosing Statement Arbitrator”)) for review and final and binding resolution, unless otherwise agreed to by the Parties, except for adjustments relating to Hard Consents satisfied after Closing. Buyer and Seller shall, not later than seven (7) days prior to the hearing date set by the Closing Statement Arbitrator, each submit a brief to the Closing Statement Arbitrator with dollar figures for settlement of the disputes as to the amount of the Purchase Price (together with a proposed Final Closing Statement that reflects such figures) consistent with their respective calculations previously exchanged pursuant to this Section 15. The determination by hearing will be scheduled seven (7) days following submission of the Accounting Firm settlement briefs, or as soon thereafter as is acceptable to the Closing Statement Arbitrator, and shall be conclusive conducted on a confidential basis. The Closing Statement Arbitrator shall consider only those items or amounts in the Final Closing Statement as to which the Parties disagreed and render a decision resolving the matters in dispute (which decision shall include a written statement of findings and conclusions) promptly after the conclusion of the hearing, unless the Parties reach agreement prior thereto and withdraw the dispute from arbitration. The Closing Statement Arbitrator shall provide to the Parties explanations in writing of the reasons for its decisions regarding the Purchase Price and shall issue the Final Closing Statement reflecting such decision. The decision of the Closing Statement Arbitrator shall be final and binding on the parties hereto and shall be enforceable against Parties. The cost of any party hereto in any court of competent jurisdiction. Any costs arbitration (including the fees and expenses incurred by of the Accounting Firm pursuant to Closing Statement Arbitrator) under this Section 12.1 15 shall be borne equally by the Seller Buyer and the Purchaser equally. The date upon which such agreement is reached or upon which the Final Purchase Price is established, shall be herein called the “Final Settlement DateSeller.” In the event
Appears in 1 contract
Post-Closing Adjustments. As soon as practicable after the Closing, but in no any event later than one hundred eighty within seventy-five (18075) days thereafter, Seller shall prepare and deliver to Purchaser prepare, in accordance with this Agreement, a final settlement statement (herein called the “Final Settlement Statement”) setting forth each adjustment or payment that was not finally determined as of the Closing Date and showing the calculation of the final settlement amount based on the Final Statement (the “final settlement amount”). If and to the extent that Seller: (a) has the right to receive from third parties any accounts receivable that satisfy the criteria prescribed on Schedule 25 attached hereto (“Eligible Accounts Receivable”), or (b) is obligated to pay to any third party any accounts payable, that in each case are attributable to the Properties and relate to time periods prior to the Effective Date, Seller shall have the right to include adjustments for such adjustments accounts payable and Eligible Accounts Receivable in the resulting calculation of the final settlement amount, in which event Seller shall provide to Buyer with the Final Purchase PriceStatement supporting documentation reasonably satisfactory to Buyer relating to the accounts payable and Eligible Accounts Receivable, and Seller and Buyer shall enter into a mutually satisfactory assignment and assumption agreement pursuant to which Seller assigns such Eligible Accounts Receivable to Buyer and Buyer assumes such accounts payable. Seller shall make its workpapers submit the Final Statement and other information available reasonable supporting documentation to Purchaser Buyer and shall afford Buyer access to review in order to confirm the adjustments shown on Seller’s draftrecords pertaining to the computations contained in the Final Statement. As soon as practicable after receipt of the Final Settlement Statementstatement, but in no event later than sixty (60) days thereafter, Purchaser Buyer shall deliver to Seller a written report containing any changes that Purchaser Buyer proposes to make be made to the Final Settlement Statement. Any failure by Purchaser to deliver Buyer shall send to Seller the written report detailing Purchaser’s proposed changes to the Final Settlement Statement within sixty thirty (6030) days following Purchaserafter Buyer’s receipt from Seller of the Final Settlement Statement shall be deemed an acceptance by Purchaser of a written notice stating either that Buyer agrees with the Final Settlement Statement as submitted by SellerStatement, or that Buyer disagrees with the Final Statement, in which case such notice shall describe in detail Buyer’s basis for any such disagreement and Buyer’s resulting calculation of a proposed final settlement amount. The If Buyer has so notified Seller of any disagreement regarding the Final Statement, the parties shall then attempt in good faith to agree with respect to the changes proposed by Purchaser, if any, no amounts due pursuant to such post-closing adjustment not later than sixty thirty (6030) days after Seller receives from Purchaser the written report described above containing PurchaserSeller’s proposed changesreceipt of Buyer’s notice of disagreement with Seller’s Final Statement. If the Purchaser and parties are unable to agree within such period, then either party may submit such dispute to arbitration in accordance with the Seller cannot then agree upon the Final Settlement Statement, the determination provisions of the amount of the Final Settlement Statement shall be submitted to a mutually agreed firm of independent public accountants (the “Accounting Firm”). The determination by the Accounting Firm shall be conclusive and binding on the parties hereto and shall be enforceable against any party hereto in any court of competent jurisdiction. Any costs and expenses incurred by the Accounting Firm pursuant to this Section 12.1 shall be borne by the Seller and the Purchaser equallyParagraph 31 hereof. The date upon which such agreement is reached or upon which the Final Purchase Price decision of the arbitrator(s) is established, shall be rendered regarding the final settlement amount is herein called the “Final Settlement Date.” In Within two (2) days after the eventSettlement Date, Buyer shall pay to Seller or Seller shall pay to Buyer in immediately available funds the net amount due. Notwithstanding anything else in this Paragraph or in Paragraph 23 to the contrary, after Buyer or Seller has paid to the other the final settlement amount, if any, owed pursuant to this Paragraph 25, neither party shall be entitled to any further adjustments or payments pursuant to this Agreement, with the exception of any amount to which a party becomes entitled pursuant to Paragraph 21.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Houston Exploration Co)
Post-Closing Adjustments. As soon as practicable after (a) Within 90 days following the Closing, but in no event later than one hundred eighty (180) days thereafter, Seller the Buyer shall prepare and deliver to Purchaser a final settlement statement cause independent certified public accountants for the Buyer (the “Final Settlement Statement”) "Accountants"), to review the books and records of the Business. The Buyer shall cause the Accountants to deliver a statement setting forth each adjustment or payment that was not finally determined the Net Operating Cash Flow (as defined below) of the Closing and showing Business to each of the parties to this Agreement (the "Accountants' Report). In the event that the Buyer or the Seller dispute the calculation of such adjustments and the resulting Final Purchase Price. Seller Net Operating Cash Flow, the disputing party shall make its workpapers and notify the other information available to Purchaser to review parties hereto in order to confirm writing (the adjustments shown on Seller’s draft. As soon as practicable after receipt "Dispute Notice") of the Final Settlement Statementamount, but in no event later than sixty (60) nature and basis of such dispute, within 10 calendar days thereafter, Purchaser shall deliver to Seller a written report containing any changes that Purchaser proposes to make to the Final Settlement Statement. Any failure by Purchaser to deliver to Seller the written report detailing Purchaser’s proposed changes to the Final Settlement Statement within sixty (60) days following Purchaser’s receipt after delivery of the Final Settlement Statement Accountants' Report. In the event of such a dispute, the parties hereto shall be deemed an acceptance by Purchaser of the Final Settlement Statement as submitted by Seller. The parties shall agree with respect first use their best efforts to the changes proposed by Purchaser, if any, no later than sixty (60) days after Seller receives from Purchaser the written report described above containing Purchaser’s proposed changesresolve such dispute among themselves. If the Purchaser and parties are unable to resolve the Seller cannot then agree upon dispute within 10 business days after delivery of the Final Settlement StatementAccountants' Report, the determination of the amount of the Final Settlement Statement dispute shall be submitted to a mutually agreed firm of independent public the Accountants and Ron Xxxxxxx, xxdependent accountants for the Seller (the “Accounting Firm”"Seller's Accountants"), for resolution. The determination by Accountants and Seller's Accountants shall use their best efforts to resolve the Accounting Firm dispute within 10 business days after submission. If they are unable to agree upon a resolution of the dispute within such 10-business day period, the dispute shall be conclusive and binding on the parties hereto and shall be enforceable against any party hereto submitted to arbitration in any court of competent jurisdictionaccordance with Section 15. Any costs The fees and expenses incurred by of the Accounting Firm Accountants in connection with the preparation of the Accountants' Report and the resolution of disputes pursuant to this Section 12.1 the preceding paragraph shall be borne by the Seller Buyer and the Purchaser equallyfees and expenses of Seller's Accountants in connection with the resolution of disputes pursuant to the preceding paragraph shall be borne by the Seller. The date Immediately upon which such agreement the expiration of the 10-business day period for giving the Dispute Notice, if no Dispute Notice is reached given, or immediately upon which the Final resolution of disputes, if any, as provided above, the Base Purchase Price is established, shall be herein called adjusted by the “Final Settlement DateCash Flow Adjustment, as provided below. A Cash Flow Adjustment shall occur only if the Seller's aggregate Net Operating Cash Flow for the 12-month period ending December 31, 1995, as determined by the Accountants (the "Audited Cash Flow") is less than $614,382. A Cash Flow Adjustment shall be a reduction in the Base Purchase Price by an amount determined as follows: Base Purchase Price - Base Purchase Price x Audited Cash Flow --------------------------------------- $614,382 Any such reduction shall reduce the cash portion of the Base Purchase Price, and the Seller shall, within 10 days following the determination of the Cash Flow Adjustment, pay such amount to the Buyer in cash, or by bank or certified check, or by wire transfer of immediately available funds.” In the event
Appears in 1 contract
Samples: Asset Purchase Agreement (West Coast Entertainment Corp)
Post-Closing Adjustments. As soon as practicable after the Closing, but in no event later than one hundred eighty (180) days thereafter, Seller shall prepare and deliver to Purchaser a final settlement statement (the “Final Settlement Statement”) setting forth each adjustment or payment that was not finally determined as of the Closing and showing the calculation of such adjustments and the resulting Final Purchase Price. Seller shall make its workpapers and other information available to Purchaser to review in order to confirm the adjustments shown on Seller’s draft. As soon as practicable after receipt of the Final Settlement Statement, but in no event later than sixty (60) days thereafter, Purchaser shall deliver to Seller a written report containing any changes that Purchaser proposes to make to the Final Settlement Statement. Any failure by Purchaser to deliver to Seller the written report detailing Purchaser’s proposed changes to the Final Settlement Statement within sixty (60) days following Purchaser’s receipt of the Final Settlement Statement shall be deemed an acceptance by Purchaser of the Final Settlement Statement as submitted by Seller. The parties shall agree with respect to the changes proposed by Purchaser, if any, no later than 5.1 Within sixty (60) days after Seller receives from the Closing Date (the "Post Closing Date"), Sellers Accountant will deliver to Purchaser a copy of the written report described above containing Purchaser’s proposed changes. If Pro Forma Balance Sheet prepared by Sellers Accountant along with any supporting documentation reasonably requested by Purchaser reflecting the Purchaser and Net Asset Amount as of the Seller cannot then agree upon Closing which shall be defined as the Final Settlement Statement, total of the determination of Purchased Assets less the amount of the Final Settlement Statement Assumed Liabilities relating to the Business, as reflected on the Pro Forma Balance Sheet (the "Net Asset Report"). The Pro Forma Balance Sheet shall be prepared using the same accounting methods, policies, practices and procedures, with consistent classifications, judgments, estimations and methodologies as used in the preparation of the July 31, 2002 Pro Forma Balance Sheet. For purposes of determining the Net Asset Amount, within thirty (30) days following delivery to Purchaser of the Net Asset Report, Purchaser shall have the right to object in writing to the results contained therein. If timely objection is not made by Purchaser to the Net Asset Report, the Net Asset Report shall become final and binding for purposes of this Agreement. If timely objection is made by Purchaser to the Net Asset Report, and the Seller and Purchaser are able to resolve their differences in writing within fifteen (15) days following the expiration of such thirty (30) day period, then the Net Asset Report, as resolved, shall become final and binding as it relates to this Agreement. If timely objection is made by Purchaser to the Net Asset Report and Seller and Purchaser are unable to resolve their differences in writing within such fifteen (15) day period, then all disputed accounting matters pertaining to the Net Asset Report shall be submitted to a mutually agreed firm of independent public accountants and reviewed by an arbitrator (the “Accounting Firm”). The determination by the Accounting Firm Arbitrator) which shall be conclusive and binding on the parties hereto and shall be enforceable against any party hereto in any court of competent jurisdiction. Any costs and expenses incurred by the Accounting Firm pursuant to this Section 12.1 shall be borne an independent accounting firm selected by the Seller and the Purchaser. If Purchaser equallyand Seller are unable to agree promptly on the accounting firm to serve as the Arbitrator, each shall select by not later than the seventh (7th) day following the expiration of the Net Asset Report objection period, a nationally recognized accounting firm, and each selected accounting firm shall be instructed to jointly select promptly another nationally recognized accounting firm, such third accounting firm shall serve as the Arbitrator. The date Arbitrator shall consider only the disputed accounting matters pertaining to the determination and shall act promptly and fairly to resolve all disputed accounting matters and its decision with respect to all disputed accounting matters shall be final and binding upon which such agreement the Seller and Purchaser. The expenses of the arbitration shall be borne one-half (1/2) by Purchaser and one-half (1/2) by the Seller. Each party shall be responsible for its own attorney and accounting fees. If the deficit in the Net Asset Amount (as shown on the Net Asset Report) is reached or upon which greater than ($-25,000.00), the Final Purchase Price is established, shall be herein called decreased on a dollar-for-dollar basis for such difference by Seller first repaying to Purchaser by certified or cashier's check or wire transfer, from the “Final Settlement Datecash paid under Section 4.2(a). The resolutions of any disputed legal matters pertaining to the report shall be subject to judicial review.” In the event
Appears in 1 contract
Samples: Asset Purchase Agreement (Pomeroy Computer Resources Inc)
Post-Closing Adjustments. As soon as practicable No later than 90 days after the Closing, but in no event later than one hundred eighty (180) days thereafter, Seller shall will prepare and deliver to Purchaser a Buyer, in accordance with customary industry accounting practices, the final settlement statement (the “Final Settlement Statement”) setting forth (i) each adjustment or payment that was not finally determined as of the Closing and Closing, (ii) showing the calculation of such adjustments and adjustment and, (iii) the resulting final purchase price (the “Final Purchase Price”). Seller shall make its workpapers and other information available to Purchaser to review in order to confirm the adjustments shown on Seller’s draft. As soon as practicable No later than 30 days after receipt of the Seller’s proposed Final Settlement Statement, but in no event later than sixty (60) days thereafter, Purchaser Buyer shall deliver to Seller a written report (with supporting documentation) containing any changes that Purchaser Buyer proposes to make to the Final Settlement Statement. Any Buyer’s failure by Purchaser to deliver to Seller the a written report detailing Purchaser’s proposed changes to the Final Settlement Statement within sixty (60) days following Purchaser’s receipt of the Final Settlement Statement by that date shall be deemed an acceptance by Purchaser Buyer of the Final Settlement Statement as submitted by Seller. The parties Parties shall agree with respect to the changes proposed by PurchaserBuyer, if any, no later than sixty (60) 30 days after Seller receives from Purchaser the written report described above containing Purchaserreceipt of Seller’s proposed changes. If the Purchaser and the Seller cannot then agree upon the Final Settlement Statement, the determination of the amount of the Final Settlement Statement shall be submitted to a mutually agreed firm of independent public accountants (the “Accounting Firm”). The determination by the Accounting Firm shall be conclusive and binding on the parties hereto and shall be enforceable against any party hereto in any court of competent jurisdiction. Any costs and expenses incurred by the Accounting Firm pursuant to this Section 12.1 shall be borne by the Seller and the Purchaser equally. The date upon which such agreement is reached or upon which the Final Purchase Price is established, established shall be herein called the “Final Settlement Date.” In If the eventFinal Purchase Price is more than the Closing Amount, Buyer shall pay Seller the amount of such difference. If the Final Purchase Price is less than the Closing Amount, Seller shall pay to Buyer the amount of such difference. Any payment by a Party shall be made by wire transfer of immediately available funds within five Business Days of the Final Settlement Date. Any adjustments requiring additional payment by either Buyer or Seller shall also be made in the same manner. The adjustments set out in the Final Settlement Statement shall be a final settlement of the Parties with respect to all matters addressed in such Final Settlement Statement.
Appears in 1 contract
Post-Closing Adjustments. As soon as practicable after the Closing, but in no event later than on or before one hundred eighty twenty (180120) days thereafterafter Closing, Seller Seller, with the assistance of Buyer's staff and with access to such records as necessary, shall prepare and deliver to Purchaser Buyer a final settlement statement (the “"Final Settlement Statement”") setting forth each adjustment or payment that was not finally determined as of the Closing and showing the calculation of such adjustments adjustment and the resulting final purchase price (the "Final Purchase Price. Seller shall make its workpapers and other information available to Purchaser to review in order to confirm the adjustments shown on Seller’s draft"). As soon as practicable after receipt of the Seller's proposed Final Settlement Statement, but in no event later than sixty on or before fifteen (6015) days thereafterafter receipt of Seller's proposed Final Settlement Statement, Purchaser Buyer shall deliver to Seller a written report containing any changes that Purchaser Buyer proposes to make to the Final Settlement Statement. Any Buyer's failure by Purchaser to deliver to Seller the a written report detailing Purchaser’s proposed changes to the proposed Final Settlement Statement within sixty (60) days following Purchaser’s receipt of the Final Settlement Statement by that date shall be deemed an acceptance by Purchaser Buyer of the Final Settlement Statement as submitted by Seller. The parties shall endeavor to agree with respect to the changes proposed by PurchaserBuyer, if any, no later than sixty fifteen (6015) days after receipt by Seller receives from Purchaser of Buyer's comments to the written report described above containing Purchaser’s proposed changes. If the Purchaser and the Seller cannot then agree upon the Final Settlement Statement, the determination of the amount of the Final Settlement Statement shall be submitted to a mutually agreed firm of independent public accountants (the “Accounting Firm”). The determination by the Accounting Firm shall be conclusive and binding on the parties hereto and shall be enforceable against any party hereto in any court of competent jurisdiction. Any costs and expenses incurred by the Accounting Firm pursuant to this Section 12.1 shall be borne by the Seller and the Purchaser equally. The date upon which such agreement is reached or upon which the Final Purchase Price is established, established for the transaction shall be herein called the “"Final Settlement Date.” In " If the eventFinal Purchase Price is more than the Closing Amount, Buyer shall pay Seller the amount of such difference. If the Final Purchase Price is less than the Closing Amount, Seller shall pay to Buyer the amount of such difference. Any payment by Buyer or Seller shall be by wire transfer in immediately available funds. Any such payment shall be within five (5) days of the Final Settlement Date.
Appears in 1 contract
Post-Closing Adjustments. As soon as practicable (a) On or prior to the fifth business day after the Closing, but in no event later than one hundred eighty (180) days thereafterEscrow Release Date, Seller shall prepare make a final determination of the amounts payable by Buyer under the Power Purchase Agreement in accordance with the second sentence of Section 1.4(b) for the period between the Closing Date and the Escrow Release Date and shall deliver to Purchaser Buyer a final settlement statement (the “Final Settlement Statement”) certificate setting forth each adjustment or payment that was not finally determined as of the Closing such amounts and showing the calculation all calculations in reasonable detail necessary to support such amounts. Within two business days following delivery of such adjustments and certificate, Buyer shall pay Seller in cash in immediately available funds the resulting Final Purchase Priceamount set forth in such certificate. (b) If Buyer has not delivered its written undertaking pursuant to Section 1.8 below, then on the forty-fifth day following the Escrow Release Date (or the first business day thereafter if such forty-fifth day is not a business day) or such later date as Seller shall determine if the effect of such delay is to reduce the amounts which may be payable by Buyer as hereinafter determined, Seller shall make its workpapers and other information available to Purchaser to review in order to confirm the adjustments shown on Seller’s draft. As soon as practicable after receipt a final determination of the Final Settlement Statement, but in no event later than sixty (60amounts payable by Buyer pursuant to Section 1.4(a)(i)(y) days thereafter, Purchaser above and shall deliver to Buyer a certificate setting forth such amounts and all calculations and documentation in reasonable detail necessary to support such amounts. Within two business days following delivery of such certificate, Seller a shall pay Buyer in cash in immediately available funds (or Buyer shall pay Seller, as applicable) the difference between the aggregate amount set forth in such certificate and the aggregate amount paid by Buyer to Seller on the Closing Date pursuant to Section 1.4(a)(i)(y). (c) If Buyer has delivered its written report containing any changes that Purchaser proposes undertaking pursuant to make Section 1.8 below, during the period for disposal to be specified in the undertaking referred to in Section 1.8 below, Seller shall cooperate with Buyer to permit Buyer reasonable access to the Final Settlement Statement. Any failure by Purchaser to deliver to Seller the written report detailing Purchaser’s proposed changes Facility, and, to the Final Settlement Statement within sixty (60) days following Purchaser’s receipt extent available as reasonably determined by Seller, the assistance of Facility personnel in order for Buyer to conduct the disposal of the Final Settlement Statement shall be deemed an acceptance by Purchaser fuel in accordance with such undertaking. (d) On the six-month anniversary of the Final Settlement Statement as submitted by Seller. The parties Escrow Release Date (or the first business day thereafter if such six-month anniversary is not a business day), Seller shall agree with respect to the changes proposed by Purchaser, if any, no later than sixty (60) days after Seller receives from Purchaser the written report described above containing Purchaser’s proposed changes. If the Purchaser and the Seller cannot then agree upon the Final Settlement Statement, the make a final determination of the amount payable by Buyer pursuant to Section 1.4(a)(v) above and shall deliver to Buyer a certificate setting forth such amount and all calculations and documentation in reasonable detail necessary to support them. Within two business days following delivery of such certificate, Seller shall pay Buyer in cash in immediately available funds (or Buyer shall pay Seller, as applicable) the difference between the amount set forth in such certificate and the amount paid by Buyer to Seller on the Closing Date pursuant to Section 1.4(a)(v), provided that the payments by Buyer pursuant to such Section 1.4(a)(v) and this Section 1.7(d), together with the payments by Buyer pursuant to Section 1.4(a)(v) and Section 1.7(d) of the Final Settlement Statement shall be submitted to a mutually agreed firm of independent public accountants (the “Accounting Firm”). The determination by the Accounting Firm shall be conclusive and binding on the parties hereto and shall be enforceable against any party hereto in any court of competent jurisdiction. Any costs and expenses incurred by the Accounting Firm pursuant to this Section 12.1 shall be borne by the Seller and the Purchaser equally. The date upon which such agreement is reached or upon which the Final Jonesboro Purchase Price is establishedAgreement, shall be herein called in no event exceed $265,000 in the “Final Settlement Date.” In the eventaggregate. 1.8
Appears in 1 contract
Samples: Power Purchase Agreement (Bangor Hydro Electric Co)
Post-Closing Adjustments. As soon as practicable Within 120 days after the Closing, but in no event later than one hundred eighty (180) days thereafter, Seller shall prepare and deliver to Purchaser a final settlement statement (the “Final Settlement Statement”) setting forth each adjustment or payment that was not finally determined as of the Closing and showing the calculation of such adjustments and the resulting Final Purchase Price. Seller shall make its workpapers and other information available to Purchaser to review in order to confirm the adjustments shown on Seller’s draft. As soon as practicable after receipt of the Final Settlement Statement, but in no event later than sixty (60) days thereafterDate, Purchaser shall deliver to Seller the Sellers' Representative a written report containing certificate (the "Closing Certificate") signed by the President or Chief Financial Officer of Purchaser providing a compilation of the Adjustments to be made pursuant to this Section 2.04, including any changes in the Adjustments used to determine the Purchase Price at Closing, together with a statement of any additional amount owing to either party (the "Adjustment Amount"), a copy of any supporting documents, work papers, Subscriber records and other data relating to such Closing Certificate and such other supporting evidence as the Sellers' Representative may reasonably request either prior to or after delivery thereof. If the Sellers' Representative shall conclude that Purchaser proposes the Closing Certificate does not accurately reflect the Adjustments to make be made to the Final Settlement Statement. Any failure by Purchaser to deliver to Seller Base Price in accordance with this Section 2.04 and the written report detailing Purchaser’s proposed changes to Adjustment Amount, the Final Settlement Statement Sellers' Representative shall, within sixty (60) 30 days following Purchaser’s after his receipt of the Final Settlement Statement Closing Certificate (such 30 day period being referred to as the "Response Period"), deliver to Purchaser a written statement of any discrepancies believed to exist. If the Sellers' Representative fails to so notify Purchaser of any discrepancies, then the calculation of the Purchase Price set forth in the Purchaser's Closing Certificate shall be deemed an acceptance by Purchaser controlling for all purposes hereof and, on or before the fifth (5th) day following the expiration of the Final Settlement Statement Response Period, (i) if the Purchaser is obligated to pay the Sellers the Adjustment Amount, the Purchaser shall pay each Seller the product of (x) the sum of (A) the Adjustment Amount and (B) the Adjustment Pool; and (y) such Seller's Ownership Percentage as submitted by determined on the Closing Date; (ii) if the Sellers are obligated to pay the Purchaser the Adjustment Amount, and such Adjustment Amount is less than the Adjustment Pool, the Purchaser shall pay each Seller the product of (x) the difference between (A) the Adjustment Pool and (B) the Adjustment Amount; and (y) such Seller's Ownership Percentage; (iii) if the Sellers are obligated to pay the Purchaser the Adjustment Amount and such Adjustment Amount is greater than the Adjustment Pool, then Sellers shall pay the Purchaser the difference between the Adjustment Amount and the Adjustment Pool and the Purchaser shall retain the Adjustment Pool. The parties On or before the fifth day following the earlier to occur of the expiration of the Response Period and the date Purchaser receives Sellers' Representative's statement of discrepancies, Purchaser or the Sellers, as the case may be, shall agree with respect to pay the changes proposed by Purchaserportion of the Adjustment Amount, if any, as to which there is no later than sixty discrepancy (60the "Agreed Adjustment Amount") and in accordance with each Seller's Ownership Percentage, if the Agreed Adjustment Amount is owing from the Purchaser. Purchaser and the Sellers' Representative shall use good faith efforts to jointly resolve their discrepancies within 15 days after Seller receives from of Purchaser's receipt of the Sellers' Representative's written statement of discrepancies, which resolution, if achieved, shall be binding upon the Sellers and Purchaser and not subject to further dispute or review. In the written report described above containing Purchaser’s proposed changesevent Purchaser and Sellers' Representative are unable to resolve their differences within such fifteen (15) day period, then either party may request that the matter be resolved by Price Waterhouse (the "Independent Accountants"). If In submitting a dispute to the Independent Accountants, each of the parties shall furnish, at its own expense, the Independent Accountants and the other party with such documents and information as the Independent Accountants may reasonably request. Each party may also furnish to the Independent Accountants such other information and documents as it deems relevant with the appropriate copies and notification being given to the other party. The Independent Accountants may conduct a conference concerning the disagreements between Sellers' Representative and Purchaser at which conference each party shall have the right to present additional documents, material and other evidence and to have present its advisors, accountants and counsel. The Independent Accountants shall promptly render a decision on the issues presented and shall provide the Purchaser and the Seller cannot then agree upon the Final Settlement Statement, the determination Sellers' Representative with a statement of the amount of owing (the "Final Settlement Statement Adjustment Amount"), and such decision shall be submitted to a mutually agreed firm of independent public accountants (the “Accounting Firm”). The determination by the Accounting Firm shall be conclusive final and binding on the parties hereto parties. The fees and expenses of the Independent Accountants shall be enforceable against any party hereto in any court divided equally between Purchaser, on the one hand, and Sellers, on the other hand. Within 5 days of competent jurisdiction. Any costs receipt of the Independent Accountants' decision with respect to such dispute, (i) if Purchaser is determined to owe the Final Adjustment Amount to the Sellers, Purchaser shall pay each Seller the product of (x) the sum of the Final Adjustment Amount and expenses incurred by the Accounting Firm pursuant Adjustment Pool and (y) such Seller's Ownership Percentage; (ii) if the Sellers are determined to this Section 12.1 owe an amount to Purchaser, (x) Sellers shall be borne by pay the Seller Final Adjustment Amount less the Adjustment Pool to Purchaser if the Final Adjustment Amount is greater than the Adjustment Pool and the Purchaser equally. The date upon which such agreement is reached shall retain the Adjustment Pool or upon which (y) Purchaser shall pay to each Seller the product of (A) the excess of the Adjustment Pool over the Final Purchase Price Adjustment Amount if the Adjustment Pool is established, greater than the Final Adjustment Amount and (B) such Seller's Ownership Percentage. All amounts owed by Purchaser or Sellers to the other in accordance with this Section 2.04(h) shall be herein called paid by wire transfer of immediately available funds and shall not bear any interest. Any amount due Purchaser from Sellers under this Section 2.04(h) and not paid when due may also be offset from the “Final Settlement Datepayments due to Sellers (or Sellers' Representative as their agent) under the Subordinated Promissory Notes.” In the event
Appears in 1 contract
Samples: Stock Purchase Agreement (Dobson Communications Corp)
Post-Closing Adjustments. As soon as reasonably practicable after the Closing, but in no event not later than one hundred eighty sixty (18060) days thereafterfollowing the Closing Date, Seller shall prepare and deliver to Purchaser Buyer a final settlement statement (the “Final Settlement Statement”) setting forth the each adjustment or payment that was not finally determined as of to the Closing Payment, and showing the calculation of such adjustments each adjustment, based, to the extent possible on actual credits, charges, receipts and the resulting Final Purchase Priceother items and in accordance with Section 2.2. Seller shall make its workpapers and other information supply reasonable documentation available to Purchaser to review in order to confirm the adjustments shown on Seller’s draftsupport any credit, charge, receipt or other item. As soon as reasonably practicable after but not later than the thirtieth (30th) day following receipt of the Final Settlement Statementsuch statement under this Section 2.8, but in no event later than sixty (60) days thereafter, Purchaser Buyer shall deliver to Seller a written report containing any changes that Purchaser Buyer proposes be made to make such statement. Buyer may not later contest or submit to the Independent Expert any amounts or adjustments that were not contested in such written report, which amounts or adjustments so omitted from such written report Buyer will be deemed to have agreed. If Buyer does not timely deliver such written report within such 30-day period, Buyer shall be deemed to agree with the adjustments set forth in such statement. The Parties shall undertake to agree on the final statement of the adjustments to the Closing Payment no later than one hundred and twenty (120) days after the Closing Date (such final statement as agreed or determined in accordance with this Section 2.8, the “Final Settlement Statement” and such final amount as agreed or determined in accordance with this Section 2.8, the “Final Settlement Amount”). In the event that the Parties cannot agree on the adjustments to the Closing Payment within one hundred and twenty (120) days after the Closing Date, the specific disputed items will be automatically referred to an independent expert of the Parties’ choosing with at least ten (10) years of oil and gas accounting experience for arbitration (the “Independent Expert”). If the Parties are unable to agree upon an Independent Expert within ten (10) days after written notice of a proposed Independent Expert is delivered by a Party to the other Party, then such Independent Expert shall be selected by any Federal District Court or State District Court Judge in Pittsburgh, Pennsylvania. The Independent Expert shall conduct the arbitration proceedings in Pittsburgh, Pennsylvania in accordance with the rules of the Commercial Arbitration Rules of the American Arbitration Association, to the extent such rules do not conflict with the terms of this Section 2.8. The Independent Expert’s determination shall be made within thirty (30) days after submission of the matters in dispute and shall be final and binding on both Parties, without right of appeal. In determining the Final Settlement StatementAmount, the Independent Expert shall not increase the Closing Payment more than the increase proposed by Seller, nor decrease the Closing Payment more than the decrease proposed by Buyer, as applicable. Any failure The Independent Expert shall act as an expert for the limited purpose of determining the specific disputed matters submitted by Purchaser any Party and may not award damages or penalties to deliver any Party with respect to any matter. Seller and Buyer shall each bear its own legal fees and other costs of presenting its case and indemnify and hold harmless the written report detailing Purchaserother Party with respect thereto. The Independent Expert shall also clearly state which Party’s proposed changes position that the Independent Expert found more persuasive in its decision-making process, and the other Party shall bear 100% of the costs and expenses of the Independent Expert. Within ten (10) days after the date on which the Parties agree (or are deemed to agree) on the Final Settlement Statement within sixty or the Independent Expert finally determines the disputed matters, as applicable, (60i) days following Purchaser’s receipt of Buyer shall pay to Seller the amount by which the Final Settlement Statement Amount exceeds the Closing Payment or (ii) Seller shall be deemed an acceptance pay to Buyer the amount by Purchaser of which the Closing Payment exceeds the Final Settlement Statement Amount, as submitted by Seller. The parties shall agree with respect to the changes proposed by Purchaser, if any, no later than sixty (60) days after Seller receives from Purchaser the written report described above containing Purchaser’s proposed changes. If the Purchaser and the Seller cannot then agree upon the Final Settlement Statement, the determination of the amount of the Final Settlement Statement shall be submitted to a mutually agreed firm of independent public accountants (the “Accounting Firm”). The determination by the Accounting Firm shall be conclusive and binding on the parties hereto and shall be enforceable against any party hereto in any court of competent jurisdiction. Any costs and expenses incurred by the Accounting Firm pursuant to this Section 12.1 shall be borne by the Seller and the Purchaser equally. The date upon which such agreement is reached or upon which the Final Purchase Price is established, shall be herein called the “Final Settlement Dateapplicable.” In the event
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Samples: Membership Interest Purchase Agreement (Rex Energy Corp)
Post-Closing Adjustments. As soon as practicable Within 120 days after the ClosingEffective Date, but Buyer shall prepare a statement as of the Effective Date (the “Closing Statement”) containing Buyer’s good faith determination of (A) Cash and Working Capital (each calculated as of the close of business on the Effective Date), (B) Indebtedness and Transaction Expenses (each calculated as of the close of business on the Effective Date), (C) Buyer’s calculation of the Collected Accounts Receivable, and (D) Buyer’s calculation of the Adjustment Amount, which Closing Statement shall have been prepared by Buyer using accounting principles, practices and methods consistent with those used in no event preparing the Financial Statements and determining the Target Working Capital and calculated in a manner consistent with Exhibit A. Seller will have 45 days after it receives the Closing Statement (the “Review Period”) to notify Buyer in writing whether it agrees with the Closing Statement. If Seller notifies Buyer that it agrees with, or if Seller does not send a Dispute Notice with respect to, the Closing Statement within the Review Period, then the Closing Statement will be deemed agreed and will be conclusive, final and binding on the Parties. If Seller notifies Buyer in writing within the Review Period that it does not agree with the Closing Statement, which notice must include the amount of and basis for the disagreement and supporting documentation (the “Dispute Notice”), then Seller and Buyer shall negotiate in good faith to resolve the disagreement, and any matters in the Dispute Notice that are resolved in writing by Seller and Buyer will be conclusive, final and binding on the Parties. Any portion of the Closing Statement that is not disputed in the Dispute Notice will be deemed agreed and will be conclusive, final and binding on the Parties. If Seller and Buyer do not resolve all of the matters in the Dispute Notice within 30 days after Buyer receives the Dispute Notice (or such longer period as they agree) then they shall submit the remaining unresolved matters (the “Open Matters”) to the Independent Accountant for resolution. If Open Matters are submitted to the Independent Accountant, (i) Seller and Buyer shall provide to the Independent Accountant such documents and information relating to the Open Matters as the Independent Accountant reasonably requests and will have the opportunity to present the Open Matters to the Independent Accountant (and copies of any materials provided by any Party to the Independent Accountant shall be delivered concurrently to the other Parties); (ii) the Independent Accountant shall consider only the Open Matters, shall base its determination solely on the materials submitted by Seller and Buyer and this Section 3(b) and related definitions (and not on an independent review) and may not assign a value to any item greater than the greatest value or less than the smallest value claimed by the Parties in the Closing Statement or the Dispute Notice; (iii) Seller and Buyer shall instruct the Independent Accountant to provide a written determination of the Open Matters within 60 days of their submission, and such determination will be conclusive, final and binding on the Parties (except in the case of manifest error or fraud); (iv) Seller and Buyer shall each pay 50% of the fees and costs of the Independent Accountant; and (v) the Independent Accountant shall act as an expert, not as an arbitrator, in determining the Open Matters. No later than one hundred eighty (1805 business days following the final agreement or determination of the Adjustment Amount pursuant to this Section 3(b) days thereafter, Seller shall prepare and deliver to Purchaser a final settlement statement (the “Final Settlement StatementAdjustment Amount”), the following payments shall be made: (A) setting forth each adjustment or payment that was not finally determined as of if the Final Closing and showing Payment is less than the calculation of such adjustments Estimated Closing Payment, Seller shall pay to Buyer cash in an amount equal to the difference between the Estimated Closing Payment and the resulting Final Purchase Price. Seller shall make its workpapers Closing Payment; and other information available to Purchaser to review in order to confirm the adjustments shown on Seller’s draft. As soon as practicable after receipt of (B) if the Final Settlement Statement, but in no event later Closing Payment is greater than sixty (60) days thereafter, Purchaser shall deliver to Seller a written report containing any changes that Purchaser proposes to make to the Final Settlement Statement. Any failure by Purchaser to deliver to Seller the written report detailing Purchaser’s proposed changes to the Final Settlement Statement within sixty (60) days following Purchaser’s receipt of the Final Settlement Statement shall be deemed an acceptance by Purchaser of the Final Settlement Statement as submitted by Seller. The parties shall agree with respect to the changes proposed by Purchaser, if any, no later than sixty (60) days after Seller receives from Purchaser the written report described above containing Purchaser’s proposed changes. If the Purchaser and the Seller cannot then agree upon the Final Settlement Statement, the determination of the amount of the Final Settlement Statement shall be submitted to a mutually agreed firm of independent public accountants (the “Accounting Firm”). The determination by the Accounting Firm shall be conclusive and binding on the parties hereto and shall be enforceable against any party hereto in any court of competent jurisdiction. Any costs and expenses incurred by the Accounting Firm pursuant to this Section 12.1 shall be borne by the Seller and the Purchaser equally. The date upon which such agreement is reached or upon which the Final Purchase Price is established, shall be herein called the “Final Settlement Date.” In the event10
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Post-Closing Adjustments. As soon as practicable Within 90 days after the Closing, but in no event later than one hundred eighty (180) days thereafter, Seller TXU shall prepare and deliver to Purchaser Buyer, in accordance with this Agreement and generally accepted accounting principles, a final settlement statement (herein called the “"Final Settlement Statement”) "), setting forth each adjustment or payment that of the type described in Sections 2.10 and 2.11 which was not finally determined as of taken into account in determining the Purchase Price at Closing and showing the calculation of such adjustments and the resulting Final Purchase Priceadjustments. Seller shall make its workpapers and other information available to Purchaser to review in order to confirm the adjustments shown on Seller’s draft. As soon as practicable Within 30 days after receipt of the Final Settlement Statement, but in no event later than sixty (60) days thereafter, Purchaser Buyer shall deliver to Seller TXU a written report containing any changes that Purchaser Buyer proposes to make be made to the Final Settlement Statement. Any failure by Purchaser The Parties shall undertake to deliver to Seller the written report detailing Purchaser’s proposed changes agree to the Final Settlement Statement within sixty (60) amounts due pursuant to such adjustments no later than 90 days following Purchaser’s after Buyer's receipt of the Final Settlement Statement shall be deemed an acceptance by Purchaser of the Final Settlement Statement as submitted by Seller. The parties shall agree with respect to the changes proposed by PurchaserStatement, if any, no later than sixty (60) days after Seller receives from Purchaser the written report described above containing Purchaser’s proposed changes. If the Purchaser and the Seller cannot then agree upon the Final Settlement Statement, the determination of the amount of the Final Settlement Statement shall be submitted to a mutually agreed firm of independent public accountants (the “Accounting Firm”). The determination by the Accounting Firm shall be conclusive and binding on the parties hereto and shall be enforceable against any party hereto in any court of competent jurisdiction. Any costs and expenses incurred by the Accounting Firm pursuant to this Section 12.1 shall be borne by the Seller and the Purchaser equally. The date upon which such agreement is reached or upon which is the Final Purchase Price is established, shall be herein called the “"Final Settlement Date.” In " Buyer or TXU (as applicable) will promptly pay amounts due in accordance with the eventFinal Settlement Statement. If TXU and Buyer are unable to agree upon the Final Settlement Statement within 90 days after Buyer's receipt of same, the Parties will retain a nationally recognized independent public accounting firm agreed upon by Buyer and TXU to audit the Final Settlement Statement and determine any amounts due thereunder. The decision of the independent accounting firm that conducts the audit will be binding on Buyer and TXU, and the fees and expenses of the independent accounting firm will be borne one-half each by Buyer and TXU. The Parties will, and will cause their representatives to, cooperate and assist in the preparation of the Final Settlement Statement and the conduct of the reviews and audits referred to in this Section 2.13, including (without limitation) making available books, records and personnel as required.
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Post-Closing Adjustments. As soon as practicable after the Closing, but in no event later than one hundred eighty (180a) days thereafter, Seller shall prepare and deliver to Purchaser a final settlement statement (the “Final Settlement Statement”) setting forth each adjustment or payment that was not finally determined as of the Closing and showing the calculation of such adjustments and the resulting Final Purchase Price. Seller shall make its workpapers and other information available to Purchaser to review in order to confirm the adjustments shown on Seller’s draft. As soon as practicable after receipt of the Final Settlement Statement, but in no event later than sixty (60) days thereafter, Purchaser shall deliver to Seller a written report containing any changes that Purchaser proposes to make to the Final Settlement Statement. Any failure by Purchaser to deliver to Seller the written report detailing Purchaser’s proposed changes to the Final Settlement Statement within sixty (60) days following Purchaser’s receipt of the Final Settlement Statement shall be deemed an acceptance by Purchaser of the Final Settlement Statement as submitted by Seller. The parties shall agree with respect to the changes proposed by Purchaser, if any, no later than Within sixty (60) days after Seller receives from Purchaser the Closing Date, the Buyer shall deliver to PMG a statement (the “Closing Date Statement”) setting forth a calculation of Net Working Capital as of the Closing (the “Actual Net Working Capital”). If PMG has any objections to the Closing Date Statement, PMG shall, within ten (10) Business Days after PMG's receipt thereof (the “Notice Period”), give written report described above containing Purchaser’s proposed changesnotice (the “Objection Notice”) to the Buyer specifying in reasonable detail such objections and the basis therefor, and calculations which PMG has determined in good faith are necessary to eliminate such objections. If PMG does not deliver the Objection Notice within the Notice Period, the Buyer's determinations on the Closing Date Statement shall be final, binding and conclusive on the Sellers, the PMG Companies and the Buyer. If PMG provides an Objection Notice within the Notice Period, PMG and the Buyer shall negotiate in good faith during the fifteen (15) Business Day period (the “Resolution Period”) after the date of the Buyer's receipt of the Objection Notice to resolve any disputes regarding the Closing Date Statement. If the Purchaser Sellers and the Seller cannot Buyer are unable to resolve all such disputes within the Resolution Period, then agree upon within five (5) Business Days after the Final Settlement Statement, the determination expiration of the amount of the Final Settlement Statement Resolution Period, all unresolved disputes shall be submitted to a mutually agreed firm of independent public accountants third party arbitrator reasonably acceptable to each Party (the “Accounting FirmArbitrator”), who shall be engaged to provide a final, binding and conclusive resolution of all such unresolved disputes within thirty (30) Business Days after such engagement. The Arbitrator shall act as an independent arbitrator to determine, based solely on the presentations by the PMG Companies and the Buyer and not by independent review, only those issues that remain in dispute. Upon final resolution of all disputed items, the Arbitrator shall issue a report showing its final calculation of such disputed items. The determination by of the Accounting Firm Arbitrator shall be final, binding and conclusive on PMG, the PMG Companies and binding on the parties hereto Buyer, and shall be enforceable against any party hereto in any court of competent jurisdiction. Any costs the fees and expenses incurred by of the Accounting Firm pursuant to this Section 12.1 Arbitrator shall be borne by the Seller Sellers and the Purchaser equallyPMG Companies (on the one hand) and the Buyer (on the other hand) in proportion to the amounts by which their proposals differed from the Arbitrator's final determination. The date upon which such agreement is reached or upon which In connection with the Final Purchase Price is establishedresolution of any dispute, each Party (the Sellers and the PMG Companies on one hand and the Buyer on the other) shall pay its own fees and expenses, including without limitation, legal, accounting and consultant fees and expenses. Notwithstanding anything to the contrary in this Agreement, any disputes regarding amounts shown in the Closing Date Statement shall be herein called the “Final Settlement Dateresolved as set forth in this Section 2.4.” In the event
Appears in 1 contract
Samples: Asset Purchase Agreement (Global Eagle Entertainment Inc.)
Post-Closing Adjustments. Sellers and Purchaser acknowledge that the amount of all adjustments to the Purchase Price under Section 2.2 may not be available prior to the Closing. As soon as practicable after the Closing, but in no any event later than one hundred eighty within ninety (18090) days thereafterafter the Closing, Seller Purchaser shall cause HHOC to prepare and deliver submit to Purchaser each Seller a final settlement statement (containing adjustments to the “Final Settlement Statement”) setting forth each adjustment or payment Purchase Price contemplated by the provisions of Section 2.2 that was were not finally determined as of the Closing (the "Final Settlement Statement") and showing such supporting documentation as is reasonably necessary to support the adjustments shown therein. Purchaser shall cause HHOC to give representatives of each Seller reasonable access to the premises of HHOC and to the books and records of HHOC for purposes of reviewing the calculation of any such adjustments and will cause appropriate personnel of HHOC to assist each Seller and representatives of any Seller, at no cost to such Seller, in verification of such calculations. The Final Settlement Statement shall become final and binding on Sellers and Purchaser as to the resulting calculation of the Adjusted Purchase Price forty five (45) days following the date the Final Purchase Price. Settlement Statement is received by Sellers, except to the extent that, prior to the expiration of such forty five (45) day period, any Seller shall make its workpapers and other information available deliver to Purchaser notice, as hereinafter required, of its disagreement with the contents of the Final Settlement Statement. Such notice shall be in writing and set forth all disagreements of any Seller with respect to review in order to confirm the adjustments shown on Seller’s draft. As soon as practicable after receipt any portion of the Final Settlement Statement, but in no event later than sixty (60) days thereafter, Purchaser shall deliver to Seller a written report containing together with any changes that thereto proposed by such Seller, and shall include an explanation in reasonable detail of, and such supporting documentation as is reasonably necessary to support, such changes. If any Seller has timely delivered such a notice of disagreement to Purchaser, then, upon written agreement between Purchaser proposes to make to the Final Settlement Statement. Any failure by Purchaser to deliver to Seller the written report detailing Purchaser’s proposed changes to the Final Settlement Statement within sixty (60) days following Purchaser’s receipt of and Sellers resolving all disagreements set forth in such notice, the Final Settlement Statement shall be deemed an acceptance by become final and binding upon Purchaser and Sellers as to the calculation of the Adjusted Purchase Price. If the Final Settlement Statement has not become final and binding by the seventy fifth (75th) day following its receipt by Sellers, then Purchaser or Sellers may submit to a nationally-recognized firm of certified public accountants which neither serves as submitted by Sellerthe auditors for nor provides consulting services to HHOC or any Sellers or Purchaser or such other independent public accounting firm mutually satisfactory to Sellers and Purchaser for resolution any unresolved disagreements of Sellers set forth in the notice from Sellers to Purchaser. The parties fees and expenses of such accounting firm in making such determination shall agree with respect to the changes proposed be shared equally by Purchaser, if anyon the onehand, no later than sixty (60) days after Seller receives from Purchaser and Sellers, on the written report described above containing other. Upon resolution of such unresolved disagreements of Purchaser’s proposed changes. If the Purchaser and the Seller cannot then agree upon the Final Settlement Statement, the determination of the amount of the Final Settlement Statement (including any revisions thereto as are so resolved or agreed) shall be submitted conclusive, final and binding upon Purchaser and Sellers as to a mutually agreed firm the calculation of independent public accountants (the “Accounting Firm”)Adjusted Purchase Price. The determination by Payment of any net amount due to Sellers or Purchaser, as the Accounting Firm case may be, on the basis thereof shall be conclusive made within five (5) days after the Final Settlement Statement (as so resolved or agreed) becomes final and binding on the parties hereto and shall be enforceable against any party hereto in any court of competent jurisdiction. Any costs and expenses incurred by (the Accounting Firm pursuant to this Section 12.1 shall be borne by the Seller and the Purchaser equally. The date upon which such agreement is reached or upon which the Final Purchase Price is established, shall be herein called the “"Final Settlement Date").” In the event
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Post-Closing Adjustments. As soon as practicable after the Closingpracticable, but in no event later than one hundred eighty (180) days thereafter, Seller shall prepare and deliver to Purchaser a final settlement statement (the “Final Settlement Statement”) setting forth each adjustment or payment that was not finally determined as of the Closing and showing the calculation of such adjustments and the resulting Final Purchase Price. Seller shall make its workpapers and other information available to Purchaser to review in order to confirm the adjustments shown on Seller’s draft. As soon as practicable after receipt of the Final Settlement Statement, but in no event later than sixty (60) days thereafter, Purchaser shall deliver to Seller a written report containing any changes that Purchaser proposes to make to the Final Settlement Statement. Any failure by Purchaser to deliver to Seller the written report detailing Purchaser’s proposed changes to the Final Settlement Statement within sixty (60) days following Purchaser’s receipt of the Final Settlement Statement shall be deemed an acceptance by Purchaser of the Final Settlement Statement as submitted by Seller. The parties shall agree with respect to the changes proposed by Purchaser, if any, no later than sixty (60) days after the Closing Date, the Seller receives from Purchaser shall deliver to the written report described above containing Purchaser’s proposed changesBuyer an audited balance sheet of the Company as of the close of business on the Closing Date (the "Closing Date Balance Sheet") in substantially the form of the September Balance Sheet attached hereto as Section 2(b)(ii) of the Disclosure Schedule. If The Closing Date Balance Sheet shall include a calculation of the Purchaser net working capital of the Company as of the close of business on the Closing Date (the "Closing Date Net Working Capital") which shall be made, and presented on the Closing Date Balance Sheet, in the same manner as the calculation of the September Net Working Capital is made and presented on the September Balance Sheet attached hereto as Section 2(b)(ii) of the Disclosure Schedule. The Closing Date Balance Sheet shall be prepared in accordance with GAAP, as modified by the accounting principles used in preparing the September Balance Sheet (as reflected in Section 2(b)(ii) of the Disclosure Schedule). For the avoidance of doubt, the calculation of the September Net Working Capital does not, and the calculation of the Closing Date Net Working Capital shall not, include (i) any of the assets or liabilities identified in columns (B) through (E) of the September Balance Sheet attached hereto as Section 2(b)(ii) of the Disclosure Schedule, (ii) any assets or liabilities with respect to the Company's obligations under the American Payment Systems, Inc. 2001 Phantom Stock Plan and the Seller cannot then agree upon Entities' reimbursement thereof pursuant to Section 6(e)(vii) of this Agreement, so long as the Final Settlement Statement, the determination related receivable of the amount Company from the Seller Entities and the corresponding liability are equal and are both reflected on the Closing Date Balance Sheet or (iii) any assets or liabilities with respect to the Company's obligation in respect of the Final Settlement Statement shall be submitted bonuses described in Section 6(e)(viii) of this Agreement and the Seller Entities' reimbursement thereof pursuant to a mutually agreed firm such section, so long as the related receivable of independent public accountants (the “Accounting Firm”)Company from the Seller Entities and the corresponding liability are equal and are both reflected on the Closing Date Balance Sheet. The determination by Seller shall also make available to the Accounting Firm shall be conclusive Buyer copies of all work papers and binding on other documents and data as were used to prepare the parties hereto Closing Date Balance Sheet (and shall be enforceable against any party hereto in any court of competent jurisdiction. Any costs and expenses incurred by the Accounting Firm pursuant to this Section 12.1 shall be borne by the Seller items therein) and the Purchaser equallyClosing Date Net Working Capital calculation. The date upon which such agreement is reached or upon which Buyer shall have the Final Purchase Price is established, shall be herein called right to dispute the “Final Settlement DateClosing Date Balance Sheet (and any items therein) and the Closing Date Net Working Capital calculation and make any proposed adjustments thereto as provided in Section 2(b) (iii) hereto.” In the event
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Post-Closing Adjustments. As soon as practicable after the Closing, but in no event not later than one hundred eighty ninety (18090) days thereafterafter the Closing, Seller shall prepare and deliver to Purchaser Buyer, in accordance with this Agreement and generally accepted accounting principles, a final settlement statement (the “"Final Settlement Statement”") setting forth each adjustment or payment to Purchase Price that was not finally determined as of the Closing and showing the calculation of such adjustments and the resulting Final Purchase Price. Seller shall make its workpapers and other information available to Purchaser to review in order to confirm the adjustments shown on Seller’s draftadjustments. As soon as practicable after receipt of the such Final Settlement StatementStatement from Seller, but in and no event later than sixty thirty (6030) days thereafter, Purchaser Buyer shall deliver to Seller a written report containing any changes that Purchaser Buyer proposes to make to the Final Settlement Statement. Any failure by Purchaser to deliver to Seller the written report detailing Purchaser’s proposed changes be made to the Final Settlement Statement within sixty (60) days following Purchaser’s receipt of the Final Settlement Statement shall be deemed an acceptance by Purchaser of the Final Settlement Statement as submitted proposed by Seller. The parties shall undertake to agree with respect to the changes proposed by Purchaser, if any, no amounts due pursuant to such Final Settlement Statement not later than sixty one hundred fifty (60150) days after Seller receives from Purchaser the written report described above containing Purchaser’s proposed changes. If the Purchaser and the Seller cannot then agree upon the Final Settlement Statement, the determination of the amount of the Final Settlement Statement shall be submitted to a mutually agreed firm of independent public accountants (the “Accounting Firm”)Closing Date. The determination final agreed price paid by Buyer to Seller for the Accounting Firm shall be conclusive and binding on Assets after all adjustments is hereinafter referred to as the parties hereto and shall be enforceable against any party hereto in any court of competent jurisdiction. Any costs and expenses incurred by the Accounting Firm pursuant to this Section 12.1 shall be borne by the Seller and the Purchaser equally. "Final Purchase Price." The date upon which such agreement is reached or upon which the Final Purchase Price is established, shall be herein called the “"Final Settlement Date.” In " If the eventBuyer and Seller are unable to agree upon a Final Purchase Price within one hundred fifty (150) days from the Closing Date, Seller shall select an independent accounting firm from a list of three (3) such firms provided by Buyer, which firm shall audit the disputed items on the Final Settlement Statement and determine the Final Purchase Price. The decision of such independent accounting firm shall be binding on Buyer and Seller, and the fees and expenses of such independent accounting firm shall be borne one-half (1/2) by each of Buyer and Seller.
Appears in 1 contract
Post-Closing Adjustments. As soon as practicable after Seller and Purchaser acknowledge that the amount of all adjustments to the Purchase Price under Section 2.04 may not be available prior to Closing, but in no event later than one hundred eighty (180) days thereafter, Seller shall prepare and deliver to Purchaser a final settlement statement (the “Final Settlement Statement”) setting forth each adjustment or payment that was not finally determined as of the Closing and showing the calculation of such adjustments and the resulting Final Purchase Price. Seller shall make its workpapers and other information available to Purchaser to review in order to confirm the adjustments shown on Seller’s draft. As soon as practicable after receipt Closing, but in any event within 90 days after Closing, Seller shall prepare and submit to Purchaser a statement containing adjustments to the Purchase Price contemplated by the provisions of Section 2.04 that were not finally determined as of Closing (the "Final Settlement Statement") and such supporting documentation as is reasonably necessary to support the adjustments shown therein. Purchaser shall give representatives of Seller reasonable access to its premises and to its books and records for purposes of preparing the Final Settlement Statement and shall cause appropriate personnel of Purchaser to assist Seller and representatives of Seller, at no cost to Seller, in the preparation of the Final Settlement Statement. Seller shall give representatives of Purchaser reasonable access to its premises and to its books and records for purposes of reviewing the calculation of any such adjustments and will cause appropriate personnel of Seller to assist Purchaser and representatives of Purchaser, at no cost to Purchaser, in verification of such calculations. The Final Settlement Statement shall become final and binding on Seller and Purchaser as to the calculation of the Adjusted Purchase Price 90 days following the date the Final Settlement Statement is received by Purchaser, except to the extent that, prior to the expiration of such 90 day period, Purchaser shall deliver to Seller notice, as hereinafter required, of its disagreement with the contents of the Final Settlement Statement. Such notice shall be in writing and set forth all disagreements of Purchaser with respect to any portion of the Final Settlement Statement, but in no event later than sixty (60) days thereafter, Purchaser shall deliver to Seller a written report containing together with any changes that thereto proposed by Purchaser, and shall include an explanation in reasonable detail of, and such supporting documentation as is reasonably necessary to support, such changes. If Purchaser proposes has timely delivered such a notice of disagreement to make to the Final Settlement Statement. Any failure by Seller, then, upon written agreement between Purchaser to deliver to and Seller the written report detailing Purchaser’s proposed changes to the Final Settlement Statement within sixty (60) days following Purchaser’s receipt resolving all disagreements of Purchaser set forth in such notice, the Final Settlement Statement shall be deemed an acceptance by become final and binding upon Purchaser and Seller as to the calculation of the Adjusted Purchase Price. If the Final Settlement Statement as submitted has not become final and binding by the 120th day following its receipt by Purchaser, then Purchaser or Seller may submit to an independent public accounting firm mutually satisfactory to Seller and Purchaser for resolution any unresolved disagreements of Purchaser set forth in the notice from Purchaser to Seller. The parties fees and expenses of such accounting firm in making such determination shall agree with respect to the changes proposed be shared equally by Purchaser and Seller. Upon resolution of such unresolved disagreements of Purchaser, if any, no later than sixty (60) days after Seller receives from Purchaser the written report described above containing Purchaser’s proposed changes. If the Purchaser and the Seller cannot then agree upon the Final Settlement Statement, the determination of the amount of the Final Settlement Statement (including any revisions thereto as are so resolved or agreed) shall be submitted conclusive, final and binding upon Purchaser and Seller as to a mutually agreed firm the calculation of independent public accountants (the “Accounting Firm”)Adjusted Purchase Price. The determination by Payment of any net amount due to Seller or Purchaser, as the Accounting Firm case may be, on the basis thereof shall be conclusive made within five days after the Final Settlement Statement (as so resolved or agreed) becomes final and binding on the parties hereto and shall be enforceable against any party hereto in any court of competent jurisdiction. Any costs and expenses incurred by (the Accounting Firm pursuant to this Section 12.1 shall be borne by the Seller and the Purchaser equally. The date upon which such agreement is reached or upon which the Final Purchase Price is established, shall be herein called the “"Final Settlement Date").” In the event
Appears in 1 contract
Post-Closing Adjustments. As soon as practicable after the Closing, but in no event later than one hundred eighty (180) days thereafter, Seller shall prepare and deliver to Purchaser a final settlement statement (the “Final Settlement Statement”) setting forth each adjustment or payment that was not finally determined as of the Closing and showing the calculation of such adjustments and the resulting Final Purchase Price. Seller shall make its workpapers and other information available to Purchaser to review in order to confirm the adjustments shown on Seller’s draft. As soon as practicable after receipt of the Final Settlement Statement, but in no event later than sixty ninety (6090) days thereafter, Purchaser shall deliver to Seller a written report containing any changes that Purchaser proposes to make to the Final Settlement Statement. Any failure by Purchaser to deliver to Seller the written report detailing Purchaser’s proposed changes to the Final Settlement Statement within sixty ninety (6090) days following Purchaser’s receipt of the Final Settlement Statement shall be deemed an acceptance by Purchaser of the Final Settlement Statement as submitted by Seller. The parties shall agree with respect to the changes proposed by Purchaser, if any, no later than sixty (60) days after Seller receives from Purchaser the written report described above containing Purchaser’s proposed changes. If the Purchaser and the Seller cannot then agree upon the Final Settlement Statement, the determination of the amount of the Final Settlement Statement shall be submitted to a mutually agreed firm of independent public accountants (the “Accounting Firm”). The determination by the Accounting Firm shall be conclusive and binding on the parties hereto and shall be enforceable against any party hereto in any court of competent jurisdiction. Any costs and expenses incurred by the Accounting Firm pursuant to this Section 12.1 shall be borne by the Seller and the Purchaser equally. The date upon which such agreement is reached or upon which the Final Purchase Price is established, shall be herein called the “Final Settlement Date.” In the event
Appears in 1 contract
Samples: Agreement (Forest Oil Corp)
Post-Closing Adjustments. As soon as practicable after the Closing, but in no event later than one hundred eighty Within ninety (18090) days thereafterfollowing the Closing Date, Seller Buyer shall prepare and deliver to Purchaser a final settlement Sellers an audited statement (in its final and binding form as determined below, the “Final Settlement Closing Statement”) setting forth each adjustment or payment that was not finally determined the Closing Working Capital as of the close of business on the day before the Closing Date and showing setting forth the calculation Closing Indebtedness as of such the Closing. The Closing Statement shall include all known adjustments required in a year-end closing of the books and shall be prepared in accordance with GAAP (other than inventory reserves and accounts receivable reserves, which shall be computed in accordance with the resulting Final Purchase PriceCompany’s past practices). Seller For the avoidance of doubt, the costs and expenses of preparing the Closing Statement shall make its workpapers and other information available to Purchaser to review be borne by Buyer. Sellers shall cooperate as reasonably requested in order to confirm connection with the adjustments shown on Seller’s draftpreparation of the Closing Statement. As soon as practicable after During the 30-day period immediately following Sellers’ receipt of the Final Settlement Closing Statement, but in no event later than sixty (60) days thereafter, Purchaser Sellers shall deliver be permitted to Seller a written report containing any changes that Purchaser proposes to make review Buyer’s working papers related to the Final Settlement Statementpreparation of the Closing Statement and determination of the Closing Indebtedness and the Closing Working Capital. Any failure by Purchaser to deliver to Seller The Closing Statement shall become final and binding upon the written report detailing Purchaser’s proposed changes to the Final Settlement Statement within sixty parties thirty (6030) days following Purchaser’s Sellers’ receipt thereof, unless Sellers shall give written notice of its disagreement (a “Notice of Disagreement”) to Buyer prior to such date. Any Notice of Disagreement shall specify in reasonable detail the Final Settlement nature and dollar amount of any disagreement so asserted. If a timely Notice of Disagreement is received by Buyer, then the Closing Statement (as revised in accordance with clause (x) or (y) below) shall be deemed an acceptance by Purchaser become final and binding upon the parties on the earliest of (x) the Final Settlement Statement as submitted by Seller. The date the parties shall agree resolve in writing any differences they have with respect to the changes proposed matters specified in the Notice of Disagreement or (y) the date all matters in dispute are finally resolved in writing by Purchaser, if any, no later than sixty the Accounting Firm. During the twenty (6020) days after Seller receives from Purchaser following delivery of a Notice of Disagreement, Sellers and Buyer shall seek in good faith to resolve in writing any differences which they may have with respect to the written report described above containing Purchaser’s proposed changesmatters specified in the Notice of Disagreement. If Following delivery of a Notice of Disagreement, Buyer and its agents and representatives shall be permitted to review Sellers’ and their representatives’ working papers relating to the Purchaser and Notice of Disagreement. If, at the Seller cannot then agree upon end of the Final Settlement Statement20-day period referred to above, the determination of matters in dispute have not been fully resolved, then the amount of the Final Settlement Statement parties shall be submitted submit to a mutually agreed firm of independent public accountants Duff & Pxxxxx (the “Accounting Firm”) for review and resolution of all matters (but only such matters) which remain in dispute, and the Accounting Firm shall make a final determination of the Closing Indebtedness and the Closing Working Capital to the extent such amounts are in dispute, in accordance with the guidelines and procedures set forth in this Agreement. The parties will cooperate with the Accounting Firm during the term of its engagement. In resolving any matters in dispute, the Accounting Firm may not assign a value to any item in dispute greater than the greatest value for such item assigned by Sellers, on the one hand, or Buyer, on the other hand, or less than the smallest value for such item assigned by Sellers, on the one hand, or Buyer, on the other hand. The Accounting Firm’s determination will be based solely on presentations by Sellers and Buyer which are in accordance with the guidelines and procedures set forth in this Agreement (i.e., not on the basis of an independent review). The Closing Statement and the determination by of the Closing Indebtedness and the Closing Working Capital shall become final and binding on the parties on the date the Accounting Firm delivers its final resolution in writing to the parties (which the Accounting Firm shall be conclusive instructed to deliver not more than forty-five (45) days following submission of such disputed matters). The fees and expenses of the Accounting Firm shall be allocated by the Accounting Firm between Sellers and Buyer based on the merits of such party’s claim with respect to such dispute. If the Estimated Cash Purchase Price is greater than the Cash Purchase Price, Sellers shall, within three (3) business days after the Closing Statement becomes final and binding on the parties hereto and shall be enforceable against any party hereto parties, make payment by wire transfer to Buyer, in any court immediately available funds of competent jurisdictionthe amount of such difference, together with interest thereon at a rate per annum equal to the Applicable Rate, calculated on the basis of the actual number of days elapsed over 360, from the Closing Date to the date of payment. Any costs and expenses incurred amount payable under this Section 1.4(b) shall first be made from the Escrow Amount to the extent of available funds therein prior to any amounts being funded directly by the Accounting Firm pursuant to this Section 12.1 shall be borne by Sellers. If the Seller and the Purchaser equally. The date upon which such agreement is reached or upon which the Final Cash Purchase Price is establishedgreater than the Estimated Cash Purchase Price, Buyer shall, within three (3) business days after the Closing Statement becomes final and binding on the parties, make payment by wire transfer to Sellers, allocated between the Sellers in accordance with the Schedule 1.3(b)(iii) attached hereto, in immediately available funds of the amount of such difference, together with interest thereon at a rate per annum equal to the Applicable Rate, calculated on the basis of the actual number of days elapsed over 360, from the Closing Date to the date of payment. Earn-Out Payment. Within five (5) days following delivery by the Company’s accountants of the Company’s final audited consolidated financial statements for the year ended December 31, 2008, Buyer shall deliver to Sellers a statement setting forth in reasonable detail the Company’s Net Sales for such year and a computation of the Earn-Out Payment for such year (the “Earn-Out Statement”). If the Company’s Net Sales for such year exceed the Company’s Net Sales for the fiscal year ended December 31, 2007, the Buyer shall deliver by wire transfer of immediately available funds, allocated between the Sellers in accordance with the Schedule 1.3(b)(iii) attached hereto, to an account designated by Sellers, an aggregate amount equal to $500,000 (the “Earn-Out Payment”). Following the Closing Date, if, prior to December 31, 2008, either Seller’s employment is terminated by the Company without Cause (as such term is defined in the applicable Employment Agreement) or either Seller resigns with Good Reason (as such term is defined in the applicable Employment Agreement), then such Seller shall be herein called entitled to receive such Seller’s portion of the “Final Settlement Earn-Out Payment if, at the time of such termination, the Company’s Annualized Net Sales for the fiscal year ended December 31, 2008 would exceed the Company’s Net Sales for the fiscal year ended December 31, 2007. For purposes of this Section 1.5, if the Company acquires any other business entity after the Closing Date, such other business and the results of its operations shall be kept separate from (i.e. not combined with) the business of the Company for purposes of calculating the amount of the Earn-Out Payment, unless and until Buyer and Sellers reach an agreement as to the basis on which the Net Sales of the acquired business entity are to be included in the Net Sales of the Company. Sellers understand and acknowledge that, from and after the Closing, control of all key business decisions of the Company (including, without limitation, any and all decisions relating to any acquisitions, dispositions, purchases or sales of assets and the timing thereof, capital expenditures and the timing thereof, opening new or closing existing offices, product pricing, employee hiring and retention, subcontracting authority and facilities management) shall be conducted in accordance with the directions of Buyer and that Buyer and its owners may operate the Company’s business in the manner it deems appropriate, regardless of the impact on the Earn-Out Payment; provided however, that Buyer will operate the business, collectively with its other businesses, exercising its reasonable business judgment and shall not take any action which has as its primary purpose the diminution of the Earn-Out Payment. Notwithstanding anything contained in this Section 1.5 to the contrary, Buyer shall not be obligated to pay the Earn-Out Payment on the date such payment is otherwise due hereunder if and to the extent that the payment of such amount: (i) would result in a default under any Buyer’s or any of its affiliates’ senior or subordinated debt financing agreements or a default exists thereunder at the time of such contemplated payment; or (ii) is restricted by Applicable Law, then in each case, only for so long as such restriction(s) remain in effect; provided, however, with respect to (i) and (ii) above, if such restriction(s) would not result from the payment of a portion of the Earn-Out Payment, Buyer is obligated to pay the portion of the Earn-Out Payment which it may so purchase. Any amounts due and owing under this Section 1.5 in respect of the Earn-Out Payment that are not paid when due shall accrue interest at a rate per annum equal to the Applicable Rate, calculated from the date such payment is otherwise due hereunder until the actual date of payment. Sellers acknowledge and agree that any failure by Buyer to pay all or any portion of the Earn-Out Payment on the date otherwise due hereunder by virtue of clauses (i) or (ii) above shall not constitute a default under or a breach of this Agreement for any reason. Notwithstanding the restrictions set forth in clause (i) above, if the Earn-Out Payment is due and payable hereunder, such Earn-Out Payment shall be paid on or prior to May 2, 2011.” In the event
Appears in 1 contract
Post-Closing Adjustments. As soon Following the conclusive determination of the Actual Working Capital as practicable after set forth in Section 1(e)(v) (such amount as so determined, the Closing“Final Working Capital”), but the Actual Indebtedness as set forth in no event later than one hundred eighty Section 1(e)(v) (180such amount as so determined, the “Final Indebtedness”), the Actual Transaction Expenses as set forth in Section 1(e)(v) days thereafter(such amount as so determined, Seller the “Final Transaction Expenses”) and the Actual Cash as set forth in Section 1(e)(v) (such amount as so determined, the “Final Cash”), the Closing Cash Consideration shall prepare be recalculated by substituting the Final Working Capital for the Estimated Working Capital, the Final Indebtedness for the Estimated Indebtedness, the Final Transaction Expenses for the Estimated Transaction Expenses and deliver to Purchaser a final settlement statement the Final Cash for the Estimated Cash (the “Final Settlement Statement”) setting forth each adjustment or payment that was not finally determined as of the Closing and showing the calculation of such adjustments and the resulting Final Purchase Price. Seller shall make its workpapers and other information available to Purchaser to review in order to confirm the adjustments shown on Seller’s draft. As soon as practicable after receipt of the Final Settlement Statement, but in no event later than sixty (60) days thereafter, Purchaser shall deliver to Seller a written report containing any changes that Purchaser proposes to make to the Final Settlement Statement. Any failure by Purchaser to deliver to Seller the written report detailing Purchaser’s proposed changes to the Final Settlement Statement within sixty (60) days following Purchaser’s receipt of the Final Settlement Statement shall be deemed an acceptance by Purchaser of the Final Settlement Statement as submitted by Seller. The parties shall agree with respect to the changes proposed by Purchaser, if any, no later than sixty (60) days after Seller receives from Purchaser the written report described above containing Purchaser’s proposed changes. If the Purchaser and the Seller cannot then agree upon the Final Settlement Statement, the determination of the amount of the Final Settlement Statement shall be submitted to a mutually agreed firm of independent public accountants (the “Accounting FirmCash Consideration”). The determination by If (x) the Accounting Firm Final Cash Consideration is greater than the Closing Cash Consideration, then (A) the Companies shall pay to each Seller in an amount equal to such Seller’s Pro Rata Share the difference between the Closing Cash Consideration and the Final Cash Consideration and (B) the funds remaining in the Escrow Amount shall be conclusive released to each Seller in an amount equal to such Seller’s Pro Rata Share and binding on (y) the parties hereto and Closing Cash Consideration is greater than the Final Cash Consideration, then (A) such amount shall be enforceable against paid from the Escrow Amount to Buyer (with any party hereto shortfall that exceeds the Escrow Amount to come from the Sellers severally and not jointly in any court of competent jurisdiction. Any costs accordance with each Seller’s Pro Rata Share), and expenses incurred by (B) the Accounting Firm pursuant funds remaining (if any) in the Escrow Amount, after giving effect to this Section 12.1 shall be borne by the Seller and the Purchaser equally. The date upon which such agreement is reached or upon which the Final Purchase Price is establishedclause (A), shall be herein called the “Final Settlement Datereleased to each Seller in an amount equal to such Seller’s Pro Rata Share. Any payment required to be made by this Section 1(e)(iii) shall be made as provided in Section 1(e)(iv).” In the event
Appears in 1 contract
Samples: Securities Purchase Agreement (Integral Ad Science Holding Corp.)
Post-Closing Adjustments. As soon as practicable after After the Closing, but Seller and Buyer ------------------------- shall make available to each other all accounting records necessary for Seller to prepare within 120 days of Closing, in no event later than one hundred eighty (180) days thereafteraccordance with this Agreement, Seller shall prepare and deliver to Purchaser a final settlement statement (the “"Final Settlement Statement”") setting forth each adjustment or payment that which was not finally determined as of the Closing and showing the calculation of such adjustments and the resulting Final Purchase Price. Seller shall make its workpapers and other information available to Purchaser to review in order to confirm the adjustments shown on Seller’s draftadjustments. As soon as practicable after receipt of the Final Settlement Statement, but in no event later than sixty (60) days thereafter, Purchaser Buyer shall deliver to Seller a written report containing any changes that Purchaser which Buyer proposes to make be made to the Final Settlement Statement. Any failure by Purchaser to deliver to Seller the written report detailing Purchaser’s proposed changes to the Final Settlement Statement within sixty (60) days following Purchaser’s receipt of the Final Settlement Statement shall be deemed an acceptance by Purchaser of the Final Settlement Statement as submitted by Seller. The parties shall undertake to agree with respect to the changes proposed by Purchaser, if any, amounts due pursuant to such post-closing adjustment no later than sixty one hundred fifty (60150) days after Seller receives from Purchaser the written report described above containing Purchaser’s proposed changesClosing. If such post-closing adjustment has not been agreed to within one hundred fifty (150) days after the Purchaser and the Seller cannot then agree upon the Final Settlement StatementClosing, the determination of the amount of the Final Settlement Statement shall be submitted either party may seek to a mutually agreed firm of independent public accountants (the “Accounting Firm”). The determination by the Accounting Firm shall be conclusive and binding on the parties hereto and shall be enforceable against enforce any party hereto in any court of competent jurisdiction. Any costs and expenses incurred by the Accounting Firm pursuant to this Section 12.1 shall be borne by the Seller and the Purchaser equallyrights it claims hereunder. The date upon which such agreement is reached or upon which the Final Purchase Price is these adjustments are established, shall be herein called referred to as the “"Final Settlement Date.” " The net sums due shall be referred to herein as the "Final Settlement Amount." In the eventevent that (i) the Final Settlement Amount is more than the Preliminary Amount, Buyer shall deliver to Seller or to Seller's account by wire transfer the amount of such difference in readily available U.S. funds as directed by Seller, or (ii) the Final Settlement Amount is less than the Preliminary Amount, Seller shall deliver to Buyer's account by wire transfer the amount of such difference in readily available U.S. funds as directed by Buyer. The payment required hereby shall be made within five (5) days after the Final Settlement Date. To the extent not accounted for in the computation of the Final Settlement Amount, all uncollected accounts receivable attributable to the Interests accruing on or after the Effective Time shall be assigned to Buyer.
Appears in 1 contract
Samples: Purchase and Sale Agreement (St Mary Land & Exploration Co)
Post-Closing Adjustments. The Corporation has heretofore delivered to Purchaser a balance sheet which is attached hereto as Exhibit A (the "Estimated Balance Sheet") and a --------- ----------------------- calculation of the Corporation's net worth (the "Estimated Net Worth"). As ------------------- soon as practicable practicable, but no later than 15 days after the Closing Date, a representative of the Purchaser and a representative of the Sellers shall work together to prepare and deliver a balance sheet of the Corporation (the "Closing Date Balance Sheet" and a calculation of the Closing Date Net -------------------------- Worth (the "Closing Date Net Worth"), utilizing generally accepted ---------------------- accounting principles, consistently applied, provided that in calculating inventory, the representatives shall allocate overhead on finished goods for current merchandise in accordance with methodology previously utilized by the Corporation. In the event that such representatives are not able to reach an agreement about the Closing Date Balance Sheet and the Closing Date Net Worth within 15 days after the Closing, but in no event later than one hundred eighty (180) days thereafter, Seller shall prepare and deliver to Purchaser a final settlement statement (the “Final Settlement Statement”) setting forth each adjustment or payment that was not finally determined as of the Closing and showing the calculation of such adjustments and the resulting Final Purchase Price. Seller shall make its workpapers and other information available to Purchaser to review in order to confirm the adjustments shown on Seller’s draft. As soon as practicable after receipt of the Final Settlement Statement, but in no event later than sixty (60) days thereafter, Purchaser shall deliver to Seller a written report containing any changes that Purchaser proposes to make to the Final Settlement Statement. Any failure by Purchaser to deliver to Seller the written report detailing Purchaser’s proposed changes to the Final Settlement Statement within sixty (60) days following Purchaser’s receipt of the Final Settlement Statement shall be deemed an acceptance by Purchaser of the Final Settlement Statement as submitted by Seller. The parties shall agree with respect to the changes proposed by Purchaser, if any, no later than sixty (60) days after Seller receives from Purchaser the written report described above containing Purchaser’s proposed changes. If the Purchaser and the Seller cannot then agree upon Sellers shall promptly collectively select and retain a regionally recognized independent accounting firm acceptable to the Final Settlement Statement, Sellers and Purchaser (the determination "Independent Accountant") to resolve any disputes. The fees ---------------------- and expenses of the amount Independent Accountant shall be paid by the party (with the Purchaser deemed to be one party and the Sellers collectively another) whose estimate of the Final Settlement Statement Closing Date Net Worth is furthest from the Independent Accountant's calculation of the Closing Date Net Worth. The decision of the Independent Accountant shall be also include a certificate of the Independent Accountant setting forth the final Closing Date Balance Sheet, or, as the case may be, setting forth its determination as to the disputed matters submitted to a mutually agreed firm of independent public accountants (the “Accounting Firm”). The determination by the Accounting Firm shall be conclusive and binding on the parties hereto and shall be enforceable against any party hereto in any court of competent jurisdiction. Any costs and expenses incurred by the Accounting Firm pursuant to this Section 12.1 shall be borne by the Seller and the Purchaser equallyit. The date upon which such agreement is reached or upon which regarding the Final Purchase Price is established, Closing Date Net Worth shall be herein called referred to as the “Final "Settlement Date.” " For a period of three months after the Closing Date, --------------- Xxx Xxxxxxxxxx and Xxxxxxxxxxx Xxxxx, acting jointly for the benefit of the Surviving Corporation, shall assist the Surviving Corporation in the management of the Closing Date accounts payable and accrued expenses. In the eventevent that such items are satisfied by the Surviving Corporation at less than the face value thereof, then the difference between the amounts payable and the amounts paid shall serve as an upward adjustment to the Purchase Price and shall be paid to the Sellers as promptly as reasonably practicable after November 30, 2002 in shares of Sherwood Common Stock, valued at the February 14 FMV.
Appears in 1 contract
Post-Closing Adjustments. As soon as practicable On or before 5:00 p.m. Central time on the date that is 120 days after the Closing, but in no event later than one hundred eighty Closing Date (180) days thereafterthe “Post-Closing Date”), Seller shall prepare and deliver to Purchaser Buyer, in accordance with this Agreement and generally accepted accounting principles, a final settlement statement (the “Final Settlement Statement”) setting forth each adjustment or payment to the Purchase Price that was not finally determined as of included in the Closing Preliminary Settlement Statement and showing the calculation of such adjustments, which adjustments and shall be in accordance with the resulting Final Purchase Priceprinciples of this Agreement. Seller shall make its workpapers and other information available to Purchaser to review in order to confirm the adjustments shown on Seller’s draft. As soon as practicable after Within twenty (20) days of receipt of the Final Settlement Statement, but in no event later than sixty (60) days thereafter, Purchaser Buyer shall deliver to Seller a written report containing any changes that Purchaser Buyer proposes to make be made to the Final Settlement Statement. Any failure by Purchaser The Parties shall negotiate in good faith and undertake to deliver to Seller the written report detailing Purchaser’s proposed changes to the Final Settlement Statement within sixty (60) days following Purchaser’s receipt of the Final Settlement Statement shall be deemed an acceptance by Purchaser of the Final Settlement Statement as submitted by Seller. The parties shall agree with respect to the changes proposed by Purchaser, if any, amounts due pursuant to such Final Settlement Statement no later than sixty fifteen (6015) days after Seller receives from Purchaser the Buyer’s submission of its written report described above containing Purchaser’s proposed changes. If the Purchaser and the hereunder to Seller cannot then agree upon the Final Settlement Statement, the determination of the amount of the Final Settlement Statement shall be submitted to a mutually agreed firm of independent public accountants (the “Accounting Firm”). The determination by the Accounting Firm shall be conclusive and binding on the parties hereto and shall be enforceable against any party hereto in any court of competent jurisdiction. Any costs and expenses incurred by the Accounting Firm pursuant to this Section 12.1 shall be borne by the Seller and the Purchaser equally. The date upon which such agreement is reached or upon which the Final Purchase Price is established, shall be herein called the “Final Settlement Date”). Buyer shall, within seven (7) days of the Final Settlement Date, pay to Seller, or Seller shall pay to Buyer, whatever the case may be, in immediately available funds the final settlement adjustment amount set forth therein. Any disputed items that cannot be resolved by the mutual agreement of the Parties, shall be removed from the Final Settlement Statement and submitted to arbitration as a Disputed Matter in accordance with the procedures set forth in Article XI. Notwithstanding anything to the contrary set forth herein, there shall be no further Purchase Price adjustments pursuant to Section 2.2 for any item not included in the Final Settlement Statement delivered by Seller (or Buyer’s written report, if any, delivered with respect thereto) in accordance with the provisions of this Section 9.2.” In the event
Appears in 1 contract
Samples: Purchase and Sale Agreement (Abraxas Petroleum Corp)
Post-Closing Adjustments. As soon as practicable On or before 120 days after the Closing, but in no event later than one hundred eighty (180) days thereafterSeller with the assistance of Buyer’s staff and with access to such records as necessary, Seller shall prepare and deliver to Purchaser Buyer a final settlement statement (the “Final Settlement Statement”) setting forth each adjustment or payment that was not finally determined as of the Closing and showing the calculation of such adjustments adjustment and the resulting Purchase Price as finally adjusted (the “Final Purchase Price”). Seller The Final Settlement Statement shall make its workpapers be adjusted to reflect any Title Defects cured pursuant to Section 4.6, any Environmental Defects Remediated pursuant to Section 5.5, any adjustments for Required Consents or preferential rights that have not been obtained under Section 4.9 or 4.10, and other information available the outcome of any arbitration under Section 4.7 or Section 5.6 that is completed prior to Purchaser to review in order to confirm the adjustments shown on Seller’s draftFinal Settlement Date. As soon as practicable after receipt of the Seller’s proposed Final Settlement Statement, but in no any event later than sixty (60) on or before 30 days thereafterafter receipt of Seller’s proposed Final Settlement Statement, Purchaser Buyer shall deliver to Seller a written report containing any changes that Purchaser Buyer proposes to make to the Final Settlement Statement. Any Buyer’s failure by Purchaser to deliver to Seller the a written report detailing Purchaser’s proposed changes to the proposed Final Settlement Statement within sixty (60) days following Purchaser’s receipt of the Final Settlement Statement by that date shall be deemed an acceptance by Purchaser Buyer of the Final Settlement Statement as submitted by Seller. The parties Parties shall attempt in good faith to agree with respect to the changes proposed by PurchaserBuyer, if any, no later than sixty (60) 15 days after receipt by Seller receives from Purchaser of Buyer’s comments on the written report described above containing Purchaser’s proposed changes. If the Purchaser and the Seller cannot then agree upon the Final Settlement Statement, the determination of the amount of the Final Settlement Statement shall be submitted to a mutually agreed firm of independent public accountants (the “Accounting Firm”). The determination by the Accounting Firm shall be conclusive and binding on the parties hereto and shall be enforceable against any party hereto in any court of competent jurisdiction. Any costs and expenses incurred by the Accounting Firm pursuant to this Section 12.1 shall be borne by the Seller and the Purchaser equally. The date upon which such agreement is reached or upon which the Final Purchase Price is established, established shall be herein called the “Final Settlement Date.” In If the eventFinal Purchase Price is more than the Closing Amount, Buyer shall pay Seller the amount of such difference pursuant to Section 2.1. If the Final Purchase Price is less than the Closing Amount, Seller shall pay to Buyer the amount of such difference. Any such payment by Buyer or Seller shall be by wire transfer in immediately available funds within five Business Days after the Final Settlement Date.
Appears in 1 contract
Post-Closing Adjustments. As (a) On or before ten business days after the Closing Date, a representative of Buyer and a representative of Seller shall jointly prepare a mutually agreed upon schedule (the “Post-Closing Schedule”) that sets forth (i) all unpaid wages, salaries, commissions, Management Incentive Plan bonuses, fringe benefit payments (including vacation pay), and all other unpaid direct and indirect compensation of any kind for all services performed by the Company’s employees prior to the Closing Date; (ii) any slot-club liability, any chip and token liability or any complimentary arrangement for food or beverage or lodging arising prior to the Closing Date for any guest or customer of the Company that has not been accrued and reserved in the Ordinary Course of Business; (iii) any amount of accrued liability as determined by the amount shown as of 10:00 A.M. PST on the Closing Date on the progressive meter of all of the Company’s progressive slot machines that exceed the base jackpot of such machines (items (i), (ii) and (iii), collectively, the “Post-Closing Liabilities”); (iv) any amount of prepaid balances (including but not limited to taxes, insurance, and deposits) apportioned to the period after the Closing Date in the manner described in Section 12.1 and to the extent Buyer receives benefit thereof; and (v) inventories, including but not limited to promotional items and food and beverage items in the restaurant as of the Closing Date (items (iv) and (v), collectively, the “Post-Closing Assets”). Seller agrees to pay to Buyer by wire transfer of immediately available funds, cash in the amount of the excess, if any, of the Post-Closing Liabilities over the Post-Closing Assets as soon as practicable after the Closing, but in no event later than one hundred eighty (180) days thereafter, Seller shall prepare and deliver to Purchaser a final settlement statement (the “Final Settlement Statement”) setting forth each adjustment or payment that was not finally determined as determination of the Post-Closing and showing Schedule. If the calculation amount of Post-Closing Assets exceeds the amount of Post-Closing Liabilities, Buyer agrees to pay to Seller cash in the amount of such adjustments and the resulting Final Purchase Price. Seller shall make its workpapers and other information available to Purchaser to review in order to confirm the adjustments shown on Seller’s draft. As excess as soon as practicable after receipt of the Final Settlement Statement, but in no event later than sixty (60) days thereafter, Purchaser shall deliver to Seller a written report containing any changes that Purchaser proposes to make to the Final Settlement Statement. Any failure by Purchaser to deliver to Seller the written report detailing Purchaser’s proposed changes to the Final Settlement Statement within sixty (60) days following Purchaser’s receipt of the Final Settlement Statement shall be deemed an acceptance by Purchaser of the Final Settlement Statement as submitted by Seller. The parties shall agree with respect to the changes proposed by Purchaser, if any, no later than sixty (60) days after Seller receives from Purchaser the written report described above containing Purchaser’s proposed changes. If the Purchaser and the Seller cannot then agree upon the Final Settlement Statement, the final determination of the amount of the Final Settlement Statement shall be submitted to a mutually agreed firm of independent public accountants (the “Accounting Firm”). The determination by the Accounting Firm shall be conclusive and binding on the parties hereto and shall be enforceable against any party hereto in any court of competent jurisdictionPost-Closing Schedule. Any costs and expenses incurred by the Accounting Firm such payment made pursuant to this Section 12.1 2.8(a) shall be borne referred to herein as the “Post-Closing Adjustment” and unless otherwise required by the Seller and the Purchaser equally. The date upon which such agreement is reached or upon which the Final Purchase Price is established, applicable law shall be herein called treated for tax purposes as an adjustment to the “Final Settlement DatePurchase Price.” In the event
Appears in 1 contract
Post-Closing Adjustments. As soon as practicable practicable, but no later than thirty (30) days after the ClosingClosing Date, but in no event later than one hundred eighty (180) days thereafterthe Independent Accountant, Seller on behalf of the Parties and pursuant to an engagement agreement reasonably acceptable to the Buyer and the Seller, shall prepare and deliver to Purchaser a final settlement statement (the “Final Settlement Statement”) setting forth each adjustment or payment that was not finally determined Buyer and the Seller an unaudited balance sheet of the Company as of the close of business on the Closing Date (the "Closing Date Balance Sheet") in substantially the form of the September Balance Sheet attached hereto as Section 2(b)(ii) of the Disclosure Schedule. The Closing Date Balance Sheet shall include a calculation of the net working capital of the Company as of the close of business on the Closing Date (the "Closing Date Net Working Capital") which shall be made, and showing presented on the Closing Date Balance Sheet, in the same manner as the calculation of such adjustments the September Net Working Capital is made and presented on the September Balance Sheet attached hereto as Section 2(b)(ii) of the Disclosure Schedule. The Closing Date Balance Sheet shall be prepared by the Independent Accountant in accordance with GAAP, as modified by the accounting principles used in preparing the September Balance Sheet (as reflected in Section 2(b)(ii) of the Disclosure Schedule). For the avoidance of doubt, the calculation of the September Net Working Capital does not, and the resulting Final Purchase Pricecalculation of the Closing Date Net Working Capital shall not, include any of the assets or liabilities identified in columns (B) through (E) of the September Balance Sheet attached hereto as Section 2(b)(ii) of the Disclosure Schedule. Seller The Independent Accountant shall also make its workpapers and other information available to Purchaser to review in order to confirm the adjustments shown on Seller’s draft. As soon as practicable after receipt of the Final Settlement Statement, but in no event later than sixty (60) days thereafter, Purchaser shall deliver to Seller a written report containing any changes that Purchaser proposes to make to the Final Settlement Statement. Any failure by Purchaser to deliver to Seller the written report detailing Purchaser’s proposed changes to the Final Settlement Statement within sixty (60) days following Purchaser’s receipt of the Final Settlement Statement shall be deemed an acceptance by Purchaser of the Final Settlement Statement as submitted by Seller. The parties shall agree with respect to the changes proposed by Purchaser, if any, no later than sixty (60) days after Seller receives from Purchaser the written report described above containing Purchaser’s proposed changes. If the Purchaser Buyer and the Seller cannot then agree upon copies of all work papers and other documents and data as were used to prepare the Final Settlement Statement, Closing Date Balance Sheet (and any items therein) and the determination of the amount of the Final Settlement Statement shall be submitted to a mutually agreed firm of independent public accountants (the “Accounting Firm”)Closing Date Net Working Capital calculation. The determination by the Accounting Firm shall be conclusive Buyer and binding on the parties hereto and shall be enforceable against any party hereto in any court of competent jurisdiction. Any costs and expenses incurred by the Accounting Firm pursuant to this Section 12.1 shall be borne by the Seller shall have the right to dispute the Closing Date Balance Sheet (and any items therein) and the Purchaser equally. The date upon which such agreement is reached or upon which the Final Purchase Price is established, shall be herein called the “Final Settlement DateClosing Date Net Working Capital calculation and make any proposed adjustments thereto as provided in Section 2(b) (iii) hereto.” In the event
Appears in 1 contract
Post-Closing Adjustments. As soon as practicable (a) Within one hundred twenty (120) days after the ClosingClosing Date, but in no event later than one hundred eighty (180) days thereafter, Seller Buyer shall prepare and deliver to Purchaser the Seller Representative a final settlement statement (the “Final Settlement Closing Date Statement”) setting forth each adjustment or payment that was not finally determined a calculation of (i) the actual Net Working Capital as of June 29, 2018 (“Actual Net Working Capital”), (ii) the actual amount of Net Financial Position as of June 29, 2018 (“Actual Net Financial Position”), and (iii) the actual amount of Transaction Expenses as of June 29, 2018 (“Actual Transaction Expenses”). The Actual Net Working Capital shall be calculated in accordance with the methodology set forth on Exhibit A whilst the Actual Net Financial Position shall be calculated in accordance with the methodology set forth on Exhibit B. If the Seller Representative has any objections to the Closing and showing Date Statement as prepared by Buyer, the calculation Seller Representative shall, within thirty (30) days after the Seller Representative’s receipt thereof (the “Notice Period”), (i) ask the Buyer to provide a detailed summary of such adjustments the components making up the Actual Net Working Capital and the resulting Final Purchase Price. Seller shall make its workpapers and other information available to Purchaser to review Actual Net Financial Position along with the supporting documentation proving all the relevant variations that took place in order to confirm the adjustments shown on Seller’s draft. As soon as practicable after receipt of the Final Settlement Statement, but in no event later than sixty (60) days thereafter, Purchaser shall deliver to Seller a written report containing any changes that Purchaser proposes to make comparison to the Final Settlement StatementEstimated Net Working Capital and the Estimated Net Financial Position and the Estimated Transaction Expenses and (ii) give written notice (the “Notice”) to Buyer specifying in reasonable detail such objections and the basis therefor, and calculations which the Seller Representative has determined in good faith are necessary to eliminate such objections. Any failure by Purchaser to If the Seller Representative does not deliver to the Notice within the Notice Period, Xxxxx’s determinations on the Closing Date Statement shall be final, binding and conclusive on the Sellers and Buyer. If the Seller Representative provides a Notice within the written report detailing Purchaser’s proposed changes to Notice Period, the Final Settlement Statement within sixty Seller Representative and Buyer shall negotiate in good faith during the fifteen (6015) days following PurchaserBusiness Day period (the “Resolution Period”) after the date of Buyer’s receipt of the Final Settlement Statement shall be deemed an acceptance by Purchaser of Notice to resolve any disputes regarding the Final Settlement Statement as submitted by Seller. The parties shall agree with respect to the changes proposed by Purchaser, if any, no later than sixty (60) days after Seller receives from Purchaser the written report described above containing Purchaser’s proposed changesClosing Date Statement. If the Purchaser Seller Representative and Buyer are unable to resolve all such disputes within the Seller cannot Resolution Period, then agree upon within fifteen (15) Business Days after the Final Settlement Statement, the determination expiration of the amount of the Final Settlement Statement Resolution Period, all unresolved disputes shall be submitted to a an independent accounting expert to be mutually agreed firm upon by the Seller Representative and Buyer or in case of independent public accountants disagreement, by the Presidente of the Tribunale di Milano (the “Accounting FirmExpert”), who shall be engaged to provide a final, binding and conclusive resolution pursuant to paragraph 2 of article 1349 of the Italian civil code of all such unresolved disputes within thirty (30) Business Days after such engagement. The Expert shall act as an independent expert to determine, based solely on the presentations by the Seller Representative and Buyer and not by independent review, only those issues that remain in dispute. Upon final resolution of all disputed items, the Expert shall issue a report showing its final calculation of such disputed items. The determination of the Expert shall be final, binding and conclusive on the Sellers and Buyer, and not subject to any appeal or challenge, except for manifest calculation error or willful misconduct. Buyer and the Seller Representative shall make readily available to the Expert all relevant books and records and any work papers (including those of the Parties’ respective accountants) relating to the calculation of the Closing Date Statement and all other items reasonably requested by the Accounting Firm shall be conclusive and binding on the parties hereto and shall be enforceable against any party hereto in any court of competent jurisdictionExpert. Any costs The fees and expenses incurred by of the Accounting Firm pursuant to this Section 12.1 Expert shall be borne by the Seller Sellers (on the one hand) and the Purchaser equallyBuyer (on the other hand) in proportion to the aggregate amounts by which their proposals differed from the Expert’s final determination. The date upon which such agreement is reached or upon which In connection with the Final Purchase Price is establishedresolution of any dispute, each Party (the Sellers on one hand and the Buyer on the other) shall pay its own fees and expenses, including without limitation, legal, accounting and consultant fees and expenses. Notwithstanding anything to the contrary in this Agreement, any disputes regarding amounts shown in the Closing Date Statement shall be herein called the “Final Settlement Dateresolved as set forth in this Section 2.4.” In the event
Appears in 1 contract
Post-Closing Adjustments. As soon as practicable after If Washington Group International believes that the ClosingClosing Balance Sheet is inaccurate in respect of any item that relates to the Caterpillar Loan Adjustment, but in no event later than one hundred eighty (180) days thereafter, Seller shall prepare and deliver to Purchaser a final settlement statement the Working Capital Adjustment or the Jamaica Loan Balance (the “Final Settlement Statement”) setting forth each adjustment or payment that was not finally determined as of "Relevant Items"), whether because the Closing and showing Balance Sheet has not been prepared in accordance with IFRS applied on a basis consistent with the calculation of such adjustments and balance sheets contained in the resulting Final Purchase Price. Seller shall make its workpapers and other information available to Purchaser to review in order to confirm the adjustments shown on Seller’s draft. As soon as practicable after receipt of the Final Settlement Statement, but in no event later than sixty Financial Statements (60) days thereafter, Purchaser shall deliver to Seller a written report containing except for any changes thereto required by IFRS) or otherwise, Washington Group International shall notify Seller of that Purchaser proposes to make to the Final Settlement Statement. Any failure by Purchaser to deliver to Seller the written report detailing Purchaser’s proposed changes to the Final Settlement Statement fact within sixty (60) days following Purchaser’s receipt after Closing, specifying the areas of the Final Settlement Statement shall be deemed an acceptance by Purchaser disagreement and providing evidence in support of the Final Settlement Statement as submitted by Sellerits position. The parties shall will attempt to agree with respect on any adjustments to the changes proposed by Purchaser, if any, no later than sixty Relevant Items within thirty (6030) days after Seller receives from Purchaser the written report described above containing Purchaser’s proposed notice. In the event that the parties fail to agree in respect of the Relevant Items within such thirty (30) day period, either party may refer the dispute for final determination to PricewaterhouseCoopers or if such designated Person does not accept the assignment, to such other mutually acceptable third party that is an expert in accounting matters and is not affiliated with either Seller or Washington Group International (the "Independent Accounting Firm"). In the absence of mutual agreement on the selection of an Independent Accounting Firm within ten (10) days, either Seller or Buyer may request that the Independent Accounting Firm be appointed by the American Arbitration Association in accordance with applicable rules of the American Arbitration Association. The determination of the Independent Accounting Firm shall be completed within forty-five (45) days following its receipt of the referral under this Section 2.1(e). The Independent Accounting Firm shall not be required to follow any particular rules of procedure, but may adopt such procedures as it, in its sole judgment, shall deem appropriate and expeditious, taking into account the nature of the issues, the amount in dispute and the positions asserted by the parties, it being the intention of the parties to create a flexible, practical and expeditious method for resolving any dispute under this Section 2.1(e); provided that the determination of the Independent Accounting Firm shall be made in accordance with IFRS. The decision of the Independent Accounting Firm shall be final and binding and shall not be subject to review or challenge of any kind. Seller and Washington Group International shall each pay one-half of the fees and disbursements of the Independent Accounting Firm. If the parties' agreement or the Independent Accounting Firm's determination with respect to the Relevant Items pursuant to Section 2.1(e)(i) results in a change in any of the Working Capital Adjustment, the Caterpillar Loan Adjustment or the Jamaica Loan Balance, the Total Agreed Value and the Purchase Price shall be re- calculated to reflect such changes. If the Purchaser and re-calculated Total Agreed Value exceeds the Total Agreed Value calculated based on the Closing Balance Sheet, within three (3) Business Days following resolution of the Relevant Items, (w) subject to Section 2.1(c)(ii), Buyer shall pay to Seller cannot then agree upon the Final Settlement Statement, the determination of the amount of such difference, by wire transfer of immediately available funds to an account specified in writing by Seller, and (x) Seller shall deliver to Buyer documentation reasonably satisfactory to Buyer evidencing the Final Settlement Statement release of BMT from any Liability in respect of the Jamaica Loan. If the re-calculated Total Agreed Value is less than the Total Agreed Value calculated based on the Closing Balance Sheet, within three (3) Business Days following resolution of the Relevant Items, Seller shall be submitted pay (y) the amount of such difference, by wire transfer of immediately available funds to a mutually agreed firm an account specified in writing by Washington Group International, and (z) deliver to Buyer documentation reasonably satisfactory to Buyer evidencing the release of independent public accountants (BMT from any Liability in respect of the “Jamaica Loan. If the parties' agreement or the Independent Accounting Firm”)'s determination with respect to the Relevant Items pursuant to Section 2.1(e)(i) does not result in a change in the Total Agreed Value, then promptly following resolution of the Relevant Items, Seller shall deliver to Buyer documentation reasonably satisfactory to Buyer evidencing the release of BMT from any Liability in respect of the Jamaica Loan. The determination by For avoidance of doubt, a change in the Accounting Firm shall be conclusive and binding on the parties hereto and shall be enforceable against any party hereto Jamaica Loan Balance alone pursuant to Section 2.1(e)(i) will not result in any court of competent jurisdiction. Any costs and expenses incurred payment by the Accounting Firm Washington Group International or Seller pursuant to this Section 12.1 shall be borne 2.1(e)(ii) or any payment by BMT pursuant to Section 2.1(c)(ii). For purposes of calculating the Closing Inventory Adjustment, Closing Inventory (A) has been valued as follows: (1) with respect to spare parts owned by BMT as of March 31, 2006, at the value reflected on the balance sheet included in the March Financial Statements, and (2) with respect to spare parts acquired after March 31, 2006, at the acquisition cost; and (B) based on the inventory count jointly conducted by the Seller and parties prior to the Purchaser equallyClosing, is agreed to have the value indicated for "Inventory" on the Closing Balance Sheet. The date upon which such agreement is reached parties acknowledge and agree that spare parts owned by BMT as of the Closing Date, but that are not suitable for use in the Ordinary Course of Business with vehicles or upon which other equipment used by BMT in its mining operations as of the Final Purchase Price is establishedClosing Date (including vehicles and other equipment that as of the Closing Date are scheduled to be deployed by BMT following the Closing Date) (spare parts that are not so suitable, shall be herein called "Obsolete Inventory"), have been written down to zero for purposes of the “Final Settlement DateClosing Balance Sheet.” In the event
Appears in 1 contract
Samples: Share Purchase Agreement (Washington Group International Inc)
Post-Closing Adjustments. As soon as practicable after the Closing, but in no event later than one hundred eighty On or before ninety (18090) days thereafterfollowing the Closing Date, Seller the Parties shall prepare and deliver undertake to Purchaser a final settlement statement (agree with respect to the “Final Settlement Statement”) setting forth each adjustment adjustments or payment payments that was were not finally determined as of the Closing and showing the calculation of such adjustments Closing, and the resulting Final Purchase Price. Seller shall make its workpapers and other information available to Purchaser to review in order to confirm amount due from Buyer or Seller, as the adjustments shown on Seller’s draft. As soon as practicable after receipt of the Final Settlement Statementcase may be, but in no event later than sixty (60) days thereafter, Purchaser shall deliver to Seller a written report containing any changes that Purchaser proposes to make pursuant to the Final Settlement Statementpost-Closing adjustment herein. Any failure by Purchaser to deliver to Seller the written report detailing Purchaser’s proposed changes to the Final Settlement Statement within On or before sixty (60) days following Purchaserthe Closing Date, Seller shall provide Buyer with a final Closing Statement setting forth the post-Closing adjustments to the preliminary Closing Statement (the “Final Closing Statement”). Seller shall provide Buyer access to such of Seller’s receipt records as may be reasonably necessary to verify the post-Closing adjustments shown on the Final Closing Statement. Payment by Buyer or Seller shall be made in immediately available funds within five (5) days of such agreement. If the Final Closing Statement has not been agreed upon on or before the date that is ninety (90) days after the Closing Date, the matters that remain in dispute shall be submitted to the Houston, Texas office of Opportune LLP (the “Closing Statement Arbitrator”) for review and final and binding resolution, unless otherwise agreed to by the Parties. If Opportune LLP is unable or unwilling to serve, then Buyer and Seller shall select another nationally recognized independent public accounting firm as the Closing Statement Arbitrator as soon as practicable. Buyer and Seller shall, not later than seven (7) days prior to the hearing date set by the Closing Statement Arbitrator, each submit a brief to the Closing Statement Arbitrator with dollar figures for settlement of the disputes as to the amount of the Purchase Price (together with a proposed Final Settlement Closing Statement that reflects such figures) consistent with their respective calculations previously exchanged pursuant to this Section 15(a). The hearing will be scheduled seven (7) days following submission of the settlement briefs, or as soon thereafter as is acceptable to the Closing Statement Arbitrator, and shall be conducted on a confidential basis. The Closing Statement Arbitrator shall consider only those items or amounts in the Final Closing Statement as to which the Parties disagreed and render a decision resolving the matters in dispute (which decision shall include a written statement of findings and conclusions) promptly after the conclusion of the hearing, unless the Parties reach agreement prior thereto and withdraw the dispute from arbitration. The Closing Statement Arbitrator shall provide to the Parties explanations in writing of the reasons for its decisions regarding the Purchase Price and shall issue the Final Closing Statement reflecting such decision. The decision of the Closing Statement Arbitrator shall be final and binding on the Parties. The cost of any arbitration (including the fees and expenses of the Closing Statement Arbitrator) under this Section 15(a) shall be borne equally by Buyer and Seller. Upon the agreement of the Parties on the Final Closing Statement (or upon resolution of any initial disputes between by the Closing Statement Arbitrator) as described above, the Final Closing Statement shall be deemed an acceptance by Purchaser of the Final Settlement Statement as submitted by Seller. The parties final, and no more adjustments shall agree be made in accordance with respect this Section 15(a) and any and all liabilities relating to the changes proposed by Purchaser, if any, no later than sixty (60) days after Seller receives from Purchaser the written report described above containing Purchaser’s proposed changes. If the Purchaser and the Seller cannot then agree upon the Final Settlement Statement, the determination of the amount of the Final Settlement Statement Subject Assets shall be submitted to a mutually agreed firm of independent public accountants (the “Accounting Firm”). The determination by the Accounting Firm shall be conclusive addressed exclusively under Sections 18 and binding on the parties hereto and shall be enforceable against any party hereto in any court of competent jurisdiction. Any costs and expenses incurred by the Accounting Firm pursuant to this Section 12.1 shall be borne by the Seller and the Purchaser equally. The date upon which such agreement is reached or upon which the Final Purchase Price is established, shall be herein called the “Final Settlement Date19 below.” In the event
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Post-Closing Adjustments. As soon as practicable after Within 60 days following the ClosingClosing Date, but in no event later than one hundred eighty (180) days thereafter, Seller Sellers’ Representative shall prepare and deliver to Purchaser Buyer, in accordance with this Agreement and generally accepted accounting principles, a final settlement statement (the “Final Settlement Statement”) setting forth each adjustment or payment that was not finally determined as of any necessary revisions to the Closing Base Purchase Price adjustments set forth in the Preliminary Settlement Statement and showing the calculation of such adjustments and the resulting Final Purchase Priceadjustments. Seller shall make its workpapers and other information available to Purchaser to review in order to confirm the adjustments shown on Seller’s draft. As soon as practicable after Within thirty (30) days of receipt of the Final Settlement Statement, but in no event later than sixty (60) days thereafter, Purchaser Buyer shall deliver to Seller Sellers’ Representative a written report containing any changes that Purchaser Buyer proposes to make be made to the Final Settlement Statement. Any failure by Purchaser Buyer and Sellers’ Representative shall negotiate in good faith and undertake to deliver to Seller the written report detailing Purchaser’s proposed changes to the Final Settlement Statement within sixty (60) days following Purchaser’s receipt of the Final Settlement Statement shall be deemed an acceptance by Purchaser of the Final Settlement Statement as submitted by Seller. The parties shall agree with respect to the changes proposed by Purchaser, if any, amounts due pursuant to such Final Settlement Statement no later than sixty thirty (6030) days after Seller receives from Purchaser the Buyer’s submission of its written report described above containing Purchaser’s proposed changes. If the Purchaser and the Seller cannot then agree upon the Final Settlement Statement, the determination of the amount of the Final Settlement Statement shall be submitted hereunder to a mutually agreed firm of independent public accountants Sellers’ Representative (the “Accounting Firm”). The determination by the Accounting Firm shall be conclusive and binding on the parties hereto and shall be enforceable against any party hereto in any court of competent jurisdiction. Any costs and expenses incurred by the Accounting Firm pursuant to this Section 12.1 shall be borne by the Seller and the Purchaser equally. The date upon which such agreement is reached or upon which the Final Purchase Price is established, shall be herein called the “Final Settlement Date”). Within seven (7) days after the Final Settlement Date Buyer shall pay to each Seller its Pro Rata Portion of the final settlement adjustment amount set forth in the Final Settlement Statement, or each Seller, severally and jointly, shall pay to Buyer its Pro Rata Portion of the final settlement adjustment amount set forth in the Final Settlement Statement, as the case may be, in each case immediately available funds in accordance with each the payee’s written instructions (to be provided at least two (2) Business Days prior to the date such payment is to be made). Any disputed items that cannot be resolved by the mutual agreement of Sellers’ Representative and Buyer shall be removed from the Final Settlement Statement and submitted to arbitration to a mutually agreeable arbitrator selected by Sellers’ Representative and Buyer and resolved as if such disputed item was a Disputed Matter in accordance with the procedures set forth in ARTICLE XI.” In the event
Appears in 1 contract
Samples: Asset Purchase and Sale Agreement (PDC Energy, Inc.)
Post-Closing Adjustments. As soon as practicable Within sixty (60) days after the Closing, but in no event later than one hundred eighty (180) days thereafterEffective Date, Seller shall prepare and deliver to Purchaser a final settlement statement (the “Final Settlement Post-Closing Statement”) setting that shall set forth each adjustment or payment that was not finally determined as of the Closing Purchase Price and showing the calculation of such all adjustments and the resulting Final Purchase Price. Seller shall make its workpapers and other information available to Purchaser to review in order to confirm the adjustments shown on Seller’s draft. As soon as practicable after receipt of the Final Settlement Statement, but in no event later than sixty (60) days thereafter, Purchaser shall deliver to Seller a written report containing any changes that Purchaser proposes to make to the Final Settlement Statement. Any failure Purchase Price proposed by Purchaser Seller to deliver be required by the definition of Purchase Price in Section 3.2 (the “Proposed Post-Closing Adjustment”); provided that if any adjustments to Seller the written report detailing Purchaser’s proposed changes to the Final Settlement Statement be made cannot be made within sixty (60) days following Purchaser’s receipt after the Effective Date, the Parties agree that additional Post-Closing Statements can be subsequently prepared to address such adjustments for a period of up to June 1 of the Final Settlement calendar year following the Effective Date. To the extent applicable, the Post-Closing Statement shall be deemed an acceptance by Purchaser prepared using the same accounting principles, policies and methods as the Operating Agent has historically used in connection with the calculation of the Final Settlement items reflected on such Post-Closing Statement. Within thirty (30) days after the delivery of the Post-Closing Statement as submitted by Seller. The parties shall agree with respect Seller to Purchaser, Purchaser may object in good faith to the changes proposed Proposed Post-Closing Adjustment in writing, stating in reasonable detail its objections thereto. Seller and Purchaser agree to cooperate to exchange information used to prepare the Post-Closing Statement and information relating thereto. If Purchaser objects to the Proposed Post-Closing Adjustment, the Parties shall attempt to resolve such dispute by negotiation. If the Parties are unable to resolve such dispute within thirty (30) days after any objection by Purchaser, the Parties shall appoint the Independent Accounting Firm, which shall, at Seller’s and Purchaser’s joint expense, review the Proposed Post-Closing Adjustment and determine the appropriate adjustment to the Purchase Price, if any, no later than sixty within thirty (6030) days after Seller receives from Purchaser such appointment. The Parties agree to cooperate with the written report described above containing Purchaser’s proposed changesIndependent Accounting Firm and provide it with such information as it reasonably requests to enable it to make such determination. If For purposes of this Section 3.3 and wherever the Purchaser Independent Accounting Firm is retained to resolve a dispute between the Parties, the Independent Accounting Firm may determine the issues in dispute following such procedures, consistent with the language of this Agreement, as it deems appropriate to the circumstances and with reference to the amounts in issue. No particular procedures are intended to be imposed upon the Independent Accounting Firm, it being the desire of the Parties that any such disagreement shall be resolved as expeditiously and inexpensively as reasonably practicable. The Independent Accounting Firm shall have no liability to the Parties in connection with such services except for acts of bad faith, willful misconduct or gross negligence, and the Seller cannot then agree upon Parties shall provide such indemnities to the Final Settlement Statement, the determination of the amount of the Final Settlement Statement shall be submitted to a mutually agreed firm of independent public accountants (the “Independent Accounting Firm”)Firm as it may reasonably request. The determination by the finding of such Independent Accounting Firm shall be conclusive and binding on the parties hereto Parties hereto. Upon determination of the appropriate adjustment (the “Post-Closing Adjustment”) by agreement of the Parties or by binding determination of the Independent Accounting Firm, the Party owing the difference shall deliver such amount to the other Party no later than three (3) Business Days after such determination, in immediately available funds or in any other manner as reasonably requested by the payee; provided that upon the written election of Purchaser, if Purchaser is the Party owing money, the amount owed shall instead be added to the face amount of the Note and be subject to the Credit Agreement and Collateral Assignment, and if Purchaser is owed any money, the amount owed shall be enforceable against any party hereto in any court credited to reduce the principal amount of competent jurisdiction. Any costs and expenses incurred by the Accounting Firm pursuant to this Section 12.1 shall be borne by the Seller and the Purchaser equally. The date upon which such agreement is reached or upon which the Final Purchase Price is established, shall be herein called the “Final Settlement DateNote.” In the event
Appears in 1 contract
Samples: Assignment and Assumption Agreement (Arizona Public Service Co)
Post-Closing Adjustments. As soon as practicable after the Closing, but in no event later than one hundred eighty (180) days thereafteron or before Tuesday June 17, Seller shall 2003, Seller, with assistance from Buyer's staff, will prepare and deliver to Purchaser a final Buyer, in accordance with customary industry accounting practices and the terms of this Agreement, (i) the settlement statement (the “Final "Settlement Statement”") setting forth each adjustment or payment that was not finally determined as of the Closing and showing the calculation of such adjustments adjustment and the resulting final purchase price (the "Final Purchase Price. Seller shall make its workpapers and other information available to Purchaser to review in order to confirm the adjustments shown on Seller’s draft"), if applicable. As soon as practicable after receipt of the Final Settlement Statement, but in no event later than sixty (60) on or before 20 days thereafterafter receipt of Seller's proposed Settlement Statement, Purchaser Buyer shall deliver to Seller a written report containing any changes that Purchaser Buyer proposes to make to the Final Settlement Statement. Any Buyer's failure by Purchaser to deliver to Seller the a written report detailing Purchaser’s proposed changes to the Final Settlement Statement within sixty (60) days following Purchaser’s receipt of the Final Settlement Statement by that date shall be deemed an acceptance by Purchaser Buyer of the Final Settlement Statement as submitted by Seller. The parties Parties shall agree with respect to the changes proposed by PurchaserBuyer, if any, no later than sixty (60) 30 days after Seller receives from Purchaser the written report described above containing Purchaser’s receipt of Seller's proposed changes. If the Purchaser and the Seller cannot then agree upon the Final Settlement Statement, the determination of the amount of the Final Settlement Statement shall be submitted to a mutually agreed firm of independent public accountants (the “Accounting Firm”). The determination by the Accounting Firm shall be conclusive and binding on the parties hereto and shall be enforceable against any party hereto in any court of competent jurisdiction. Any costs and expenses incurred by the Accounting Firm pursuant to this Section 12.1 shall be borne by the Seller and the Purchaser equally. The date upon which such agreement is reached or upon which the Final Purchase Price is established, established shall be herein called the “Final "Settlement Date.” " If the Final Purchase Price is more than the Closing Amount, Buyer shall pay Seller the amount of such difference. If the Final Purchase Price is less than the Closing Amount, Seller shall pay to Buyer the amount of such difference. In either event, payment shall be made by wire transfer in immediately available funds. Payment by Buyer or Seller, as the eventcase may be, shall be within five days of the Settlement Date.
Appears in 1 contract
Post-Closing Adjustments. As soon as practicable after the ClosingClosing Date, but in no event later than one hundred eighty (180) days thereafter, Seller Buyer shall cause its accountants to prepare and deliver to Purchaser the Representative a final settlement statement consolidated balance sheet for Seller (the “Final Settlement StatementClosing Date Balance Sheet”) setting forth and a calculation of the Current Asset Value Shortfall, in each adjustment or payment that was not finally determined case, measured as of the close of business on the Closing and showing the calculation of such adjustments and the resulting Final Purchase PriceDate, prepared in accordance with United States generally accepted accounting principles (“GAAP”). Seller Buyer shall make endeavor in good faith to cause its workpapers and other information available to Purchaser to review in order to confirm the adjustments shown on Seller’s draft. As soon as practicable after receipt of the Final Settlement Statement, but in no event later than sixty (60) days thereafter, Purchaser shall deliver to Seller a written report containing any changes that Purchaser proposes to make to the Final Settlement Statement. Any failure by Purchaser accountants to deliver to Seller the written report detailing Purchaser’s proposed changes Representative the Closing Date Balance Sheet and calculation of the Current Asset Value Shortfall within 60 days after the Closing Date; provided, however, that if the Closing Date Balance Sheet is not delivered to the Final Settlement Statement Representative by Buyer’s accountants within sixty 60 days after the Closing Date, the Estimated Closing Date Balance Sheet shall be the final consolidated balance sheet of Seller for purposes of this Section 3. Buyer shall also make available to the Representative copies of all work papers and other documents and data as was used to calculate the Closing Date Balance Sheet, and Buyer shall set out all proposed adjustments in reasonable detail in a written statement delivered to Representative. The Representative shall have the right to dispute the Closing Date Balance Sheet (60and any items therein) days following Purchaser’s receipt and the accompanying calculation of the Final Settlement Statement shall be deemed an acceptance by Purchaser Current Asset Value Shortfall and make any proposed adjustments thereto as provided in Section 3(c) below. If it is determined after completion of the Final Settlement Statement time and procedure described in Section 3(c) below that there is a Current Asset Value Shortfall in excess of the estimated Current Asset Value Shortfall and the Representative does not dispute such determination as submitted described in Section 3(c) below, an amount equal to (x) the excess Current Asset Value Shortfall multiplied by Seller. The parties shall agree with respect to 70% plus (y) the changes proposed by Purchaseramount of the Current Asset Value Excess, if any, no later than sixty (60) days after Seller receives from Purchaser the written report described above containing Purchaser’s proposed changes. If the Purchaser and paid to the Seller cannot then agree upon the Final Settlement Statement, the determination of the amount of the Final Settlement Statement under Section 3(a) shall be submitted to a mutually agreed firm of independent public accountants (deducted from the “Accounting Firm”). The determination by the Accounting Firm shall be conclusive and binding on the parties hereto and shall be enforceable against any party hereto in any court of competent jurisdiction. Any costs and expenses incurred by the Accounting Firm pursuant to this Section 12.1 shall be borne by the Seller and the Purchaser equally. The date upon which such agreement is reached or upon which the Final Purchase Price is established, payable under Sections 2(a)(ii) and 2(a)(iii) by Buyer (such deduction to be allocated to amounts payable under one or both of such Sections as Buyer shall be herein called the “Final Settlement Datedetermine in its sole discretion).” In the event
Appears in 1 contract
Post-Closing Adjustments. As soon as practicable after the Closing, but in no any event later than one hundred eighty within ninety (18090) days thereafterafter the Closing, Purchaser shall cause HHOC to prepare and submit to each Seller a statement, substantially in the form of Exhibit A (the "Final Settlement Statement"), containing adjustments to the Purchase Price contemplated by the provisions of Section 2.2 and the resulting Adjustment Amount for each Seller, together with such supporting documentation as is reasonably necessary to support the adjustments shown therein. Purchaser shall cause HHOC to give representatives of each Seller reasonable access to the premises of HHOC and to the books and records of HHOC for purposes of reviewing the calculation of any such adjustments and will cause appropriate personnel of HHOC to assist each Seller and representatives of any Seller, at no cost to such Seller, in verification of such calculations. The Final Settlement Statement shall become final and binding on Sellers and Purchaser as to the calculation of the Adjusted Purchase Price forty five (45) days following the date the Final Settlement Statement is received by Sellers, except to the extent that, prior to the expiration of such forty five (45) day period, any Seller shall prepare and deliver to Purchaser a final settlement statement (notice, as hereinafter required, of its disagreement with the “contents of the Final Settlement Statement”) setting . Such notice shall be in writing and set forth each adjustment or payment that was not finally determined as all disagreements of the Closing and showing the calculation of such adjustments and the resulting Final Purchase Price. any Seller shall make its workpapers and other information available with respect to Purchaser to review in order to confirm the adjustments shown on Seller’s draft. As soon as practicable after receipt any portion of the Final Settlement Statement, but in no event later than sixty (60) days thereafter, Purchaser shall deliver to Seller a written report containing together with any changes that thereto proposed by such Seller, and shall include an explanation in reasonable detail of, and such supporting documentation as is reasonably necessary to support, such changes. If any Seller has timely delivered such a notice of disagreement to Purchaser, then, upon written agreement between Purchaser proposes to make to the Final Settlement Statement. Any failure by Purchaser to deliver to Seller the written report detailing Purchaser’s proposed changes to the Final Settlement Statement within sixty (60) days following Purchaser’s receipt of and Sellers resolving all disagreements set forth in such notice, the Final Settlement Statement shall be deemed an acceptance by become final and binding upon Purchaser and Sellers as to the calculation of the Adjusted Purchase Price. If the Final Settlement Statement has not become final and binding by the seventy fifth (75th) day following its receipt by Sellers, then Purchaser or Sellers may submit to a nationally-recognized firm of certified public accountants which neither serves as submitted by Sellerthe auditors for nor provides consulting services to HHOC or any Sellers or Purchaser or such other independent public accounting firm mutually satisfactory to Sellers and Purchaser for resolution any unresolved disagreements of Sellers set forth in the notice from Sellers to Purchaser. The parties fees and expenses of such accounting firm in making such determination shall agree with respect to the changes proposed be shared equally by Purchaser, if anyon the onehand, no later than sixty (60) days after Seller receives from Purchaser and Sellers, on the written report described above containing other. Upon resolution of such unresolved disagreements of Purchaser’s proposed changes. If the Purchaser and the Seller cannot then agree upon the Final Settlement Statement, the determination of the amount of the Final Settlement Statement (including any revisions thereto as are so resolved or agreed) shall be submitted conclusive, final and binding upon Purchaser and Sellers as to a mutually agreed firm the calculation of independent public accountants (the “Accounting Firm”)Adjusted Purchase Price. The determination by Payment of any net amount due to Sellers or Purchaser, as the Accounting Firm case may be, on the basis thereof shall be conclusive made within five (5) days after the Final Settlement Statement (as so resolved or agreed) becomes final and binding on the parties hereto and shall be enforceable against any party hereto in any court of competent jurisdiction. Any costs and expenses incurred by (the Accounting Firm pursuant to this Section 12.1 shall be borne by the Seller and the Purchaser equally. The date upon which such agreement is reached or upon which the Final Purchase Price is established, shall be herein called the “"Final Settlement Date").” In the event
Appears in 1 contract
Post-Closing Adjustments. As soon as practicable after the (a) Following Closing, but in no event later than one hundred eighty (180) days thereafter, Seller shall prepare and deliver to Purchaser a final settlement statement setting forth its calculation of the Adjusted Cash Purchase Price (the “Final Settlement Statement”), which statement shall be substantially in the form of Schedule 2.3, and Seller shall deliver the same to Buyer no later than the forty-fifth (45th) setting forth each adjustment or payment that was not finally determined as of day following the Closing Date. The Final Settlement Statement delivered by Seller to Buyer shall be final and showing binding on the calculation of such adjustments and the resulting Final Purchase Price. Seller shall make its workpapers and other information available to Purchaser to review in order to confirm the adjustments shown on Seller’s draft. As soon as practicable Parties unless Buyer objects within forty-five (45) days after receipt thereof by: (i) notifying Seller in writing of the Final Settlement Statement, but in no event later than sixty each objection and (60ii) days thereafter, Purchaser shall deliver delivering to Seller a written report containing detailed statement describing the basis for each objection along with any changes that Purchaser proposes to make to the Final Settlement Statement. Any failure by Purchaser to deliver to Seller the written report detailing Purchaser’s proposed changes modifications to the Final Settlement Statement within sixty (60) days following Purchaserproposed by Buyer. Any component of Seller’s receipt Final Settlement Statement that is not the subject of a proper and timely objection by Buyer shall be final and binding on the Parties. If Seller agrees with the modifications to the Final Settlement Statement proposed by Buyer, such modified Final Settlement Statement shall be deemed an acceptance by Purchaser of final and binding on the Parties. If Seller does not agree with the modifications to the Final Settlement Statement as submitted by Seller. The parties shall agree with respect to the changes proposed by PurchaserBuyer, if anySeller shall, no later than sixty within fifteen (6015) days after its receipt of Buyer’s objection(s) and calculations, notify Buyer in writing of its disagreement, which notice shall contain a detailed statement describing the basis of its disagreement to each objection. Throughout the period following the Closing Date, Buyer shall provide Seller receives from Purchaser and its counsel, accountants and other advisors reasonable access (with the written report described above containing Purchaser’s proposed changes. If right to make copies) to the Purchaser and Records for the Seller cannot then agree upon the Final Settlement Statement, the determination purposes of the amount of the Final Settlement Statement shall be submitted to a mutually agreed firm of independent public accountants (the “Accounting Firm”). The determination by the Accounting Firm shall be conclusive review and binding on the parties hereto and shall be enforceable against any party hereto in any court of competent jurisdiction. Any costs and expenses incurred by the Accounting Firm pursuant to this Section 12.1 shall be borne by the Seller and the Purchaser equally. The date upon which such agreement is reached or upon which the Final Purchase Price is established, shall be herein called the “Final Settlement Dateobjection right contemplated herein.” In the event
Appears in 1 contract
Samples: Asset Purchase Agreement (Midstates Petroleum Company, Inc.)
Post-Closing Adjustments. As soon as practicable after If and to the Closing, but in no event later than one hundred eighty (180) days thereafter, Seller shall prepare and deliver to Purchaser a final settlement statement (the “Final Settlement Statement”) setting forth each adjustment or payment that was not finally determined as of extent the Closing and showing Equity as calculated in accordance with the calculation Adjusted Closing Balance Sheet exceeds the Closing Equity as calculated in accordance with the Estimated Closing Balance Sheet, then Buyer shall pay an amount equal to such excess (together with interest on such amount, from the Closing Date to the date of payment, at the Reference Rate in effect on such adjustments and date, without compounding) to Seller as an adjustment to the resulting Final Purchase Price. If and to the extent that the Closing Equity as calculated in accordance with the Adjusted Closing Balance Sheet is less than the Closing Equity as calculated in accordance with the Estimated Closing Balance Sheet, then Seller shall make its workpapers pay an amount equal to such shortfall (together with interest on such amount, from the Closing Date to the date of payment, at the Reference Rate in effect on such date, without compounding) to Buyer as an adjustment to the Purchase Price. If the amount of post-Closing adjustments are agreed to (or deemed agreed to) by Buyer, on the one hand, and Seller, on the other information available to Purchaser to review in order to confirm hand, before or during the adjustments shown on Seller’s draftResolution Period, then payment of any adjustment shall be made within five (5) Business Days after the date of such agreement (or deemed agreement). As soon as practicable after receipt If there are Unresolved Changes at the end of the Final Settlement StatementResolution Period, but in no event later than sixty then (60a) days thereafter, Purchaser the minimum amount which the parties agree is owed pursuant to this Section 2.3.6 shall deliver to Seller a written report containing any changes that Purchaser proposes to make to be paid within five (5) Business Days after the Final Settlement Statement. Any failure by Purchaser to deliver to Seller the written report detailing Purchaser’s proposed changes to the Final Settlement Statement within sixty (60) days following Purchaser’s receipt end of the Final Settlement Statement shall be deemed an acceptance by Purchaser of the Final Settlement Statement as submitted by Seller. The parties shall agree Resolution Period and any additional amounts owing with respect to the changes proposed Unresolved Changes shall be paid within five (5) Business Days after the resolution thereof by Purchaserthe Neutral Auditors or (b) in all other cases, if any, no later than sixty any and all payments shall be made within five (605) days Business Days after Seller receives from Purchaser the written report described above containing Purchaser’s proposed changes. If the Purchaser and the Seller cannot then agree upon the Final Settlement Statement, the determination resolution of the amount of the Final Settlement Statement shall be submitted to a mutually agreed firm of independent public accountants (the “Accounting Firm”). The determination Unresolved Changes by the Accounting Firm shall be conclusive and binding on the parties hereto and shall be enforceable against Neutral Auditors. Any payment made to any party hereto in any court of competent jurisdiction. Any costs and expenses incurred by the Accounting Firm pursuant to this Section 12.1 2.3.6 shall be borne (i) net of any obligations identified, as of such date, as owed by such party under Article X of this Agreement and (ii) paid by wire transfer of immediately available funds to a bank account specified by the Seller and the Purchaser equally. The date upon party to which such agreement payment is reached or upon which the Final Purchase Price is established, shall be herein called the “Final Settlement Dateowed.” In the event
Appears in 1 contract
Samples: Share Purchase Agreement (Morris Material Handling Inc)
Post-Closing Adjustments. During that period which commences on the Closing Date and ends on that day which is twenty (20) days from the Closing Date (the “Inventory Settlement Period”), the Parties shall mutually agree on any adjustments as of the Closing Date to the Inventory and, after such adjustments are mutually agreed to, the Buyer shall make the payment for Inventory required under Section 2(c)(iii) hereof. In order to complete any adjustments to the Inventory by the end of the Inventory Settlement Period, the Company agrees to deliver to Buyer at Closing or promptly thereafter, all current invoices for current on hand inventory, current count on hand by item, and vendor detail information, which invoices, counts and other vendor information is necessary for Buyer to compare the Company’s pre-close Inventory count to Buyer’s post-close Inventory count. As soon as practicable of that date which is ninety (90) days after the ClosingClosing Date, but the Parties shall mutually agree on any adjustments as of the Closing Date to (i) the Receivables, (ii) Customer Prepayments, (iii) Unpaid Closing Liabilities, and (iv) any other adjustments related to the items contained in Section 2(h), and no event later than one hundred eighty fifteen (18015) days thereafter, Seller thereafter the Parties shall mutually prepare and deliver to Purchaser execute a final settlement statement (the “Final Settlement Statement”) setting forth each adjustment or payment that was not finally determined as any adjustments to the foregoing. Within five (5) days after completion of the Closing and showing the calculation of such adjustments and the resulting Final Purchase Price. Seller shall make its workpapers and other information available to Purchaser to review in order to confirm the adjustments shown on Seller’s draft. As soon as practicable after receipt of the Final Settlement Statement, but Buyer shall remit to the Company, in no immediately available funds, the balance of the consideration, or in the event later than sixty of any overpayment of the consideration by Buyer, the Company shall reimburse Buyer in the amount of such overpayment as follows: (60A) days thereafterif the amount of such overpayment obligation is $500,000 or less, Purchaser the Company shall deliver cash to Seller a written report containing any changes Buyer in the full amount of such overpayment obligation; (B) if the amount of such overpayment obligation is greater than $500,000 but less than that Purchaser proposes amount equal to make to $500,000 plus the Final Settlement Statement. Any failure by Purchaser to deliver to Seller the written report detailing Purchaser’s proposed changes to the Final Settlement Statement within sixty (60) days following Purchaser’s receipt unpaid balance of the Final Settlement Statement Promissory Note, the Company shall be deemed deliver cash to Buyer in the amount of $500,000, with any balance of such overpayment obligation satisfied through an acceptance offset against the unpaid balance owed by Purchaser Parent to Company under the Promissory Note; or (C) if the amount of such overpayment obligation is greater than that amount equal to $500,000 plus the unpaid balance of the Final Settlement Statement as submitted Promissory Note, the overpayment reimbursements required under subsection (B) above shall first be made, with any overpayment obligations still remaining unsatisfied then reimbursed by SellerCompany to Buyer through the delivery by Company to Buyer of that amount of additional cash necessary to pay in full such overpayment obligations. The parties shall agree with respect to the changes proposed by Purchaser, if any, no later than sixty Within five (605) days after Seller receives from Purchaser completion of the written report described above containing Purchaser’s proposed changes. If the Purchaser and the Seller cannot then agree upon the Final Settlement Statement, the determination Parties shall prepare (or, if already prepared and agreed to, shall amend) an allocation of the amount of the Final Settlement Statement shall be submitted purchase price pursuant to a mutually Section 2(j) hereof (or, if already prepared and agreed firm of independent public accountants (the “Accounting Firm”to, to make such allocation consistent with such adjustments). The determination by the Accounting Firm shall be conclusive and binding on the parties hereto and shall be enforceable against any Each party hereto in any court of competent jurisdiction. Any shall pay its own costs and expenses incurred by in connection with the Accounting Firm pursuant to this Section 12.1 shall be borne by the Seller and the Purchaser equally. The date upon which such agreement is reached or upon which the Final Purchase Price is established, shall be herein called the “Final Settlement DateStatement.” In the event
Appears in 1 contract
Post-Closing Adjustments. As soon as practicable after the Closing, but in no event later than one hundred eighty (180) days thereafter, Seller Connector shall prepare and deliver to Purchaser a final settlement statement the Management Stockholders, within one hundred twenty (the “Final Settlement Statement”) setting forth each adjustment or payment that was not finally determined as of the Closing and showing the calculation of such adjustments and the resulting Final Purchase Price. Seller shall make its workpapers and other information available to Purchaser to review in order to confirm the adjustments shown on Seller’s draft. As soon as practicable after receipt of the Final Settlement Statement, but in no event later than sixty (60) days thereafter, Purchaser shall deliver to Seller a written report containing any changes that Purchaser proposes to make to the Final Settlement Statement. Any failure by Purchaser to deliver to Seller the written report detailing Purchaser’s proposed changes to the Final Settlement Statement within sixty (60) days following Purchaser’s receipt of the Final Settlement Statement shall be deemed an acceptance by Purchaser of the Final Settlement Statement as submitted by Seller. The parties shall agree with respect to the changes proposed by Purchaser, if any, no later than sixty (60120) days after Seller receives from Purchaser the written report described above containing Purchaser’s proposed changes. If the Purchaser and the Seller cannot then agree upon the Final Settlement Statement, the determination end of the amount of the Final Settlement Statement shall be submitted to each fiscal year in which a mutually agreed firm of independent public accountants (the “Accounting Firm”). The determination by the Accounting Firm shall be conclusive and binding on the parties hereto and shall be enforceable against any party hereto in any court of competent jurisdiction. Any costs and expenses incurred by the Accounting Firm closing pursuant to this Section 12.1 4.2 occurs, a post closing statement (the "Post Closing Statement"). The Post Closing Statement shall set forth, for the fiscal year in which such closing occurred, calculations relating to (a) any normal, year-end adjustments and (b) any additional adjustments in connection with the annual audit conducted by the Company's independent certified public accountants (together, the "Post Closing Adjustments"), which would, after giving effect to such adjustments, result in an EBITA (the "Adjusted EBITA") that differs from the EBITA on which the Purchase Price for the Management Shares was originally based (the "Closing EBITA") by more than Five Hundred Thousand Dollars ($500,000) (the "Threshold Amount"). For the purposes of this Section, the Post Closing Adjustments shall be applied to all four fiscal quarters used in the EBITA calculation, regardless of whether a fiscal quarter falls in a different fiscal year. With respect to an Accelerated Closing, Connector shall have the option of following the procedure set forth above, or, in the alternative, engaging the Company's independent certified public accountants to conduct an audit of the Company's financial statements for the twelve (12) consecutive accounting months for which the Closing EBITA was determined. If the findings of such audit would result in an EBITA (also referred to herein as the "Adjusted EBITA") that differs from the Closing EBITA by more than the Threshold Amount, then Connector shall deliver to the Management Stockholders a Post Closing Statement describing such findings. Should the Adjusted EBITA differ from the Closing EBITA by more than Five Hundred Thousand Dollars ($500,000), then the cost of the audit by the Company's independent certified public accounts shall be borne equally among the Management Stockholders who sold Shares in the Accelerated Closing; provided, however, that the costs of an audit shall be borne by the Seller Management Stockholder only with respect to an Accelerated Closing. Should the Adjusted EBITA differ from the Closing EBITA by more than the Threshold Amount, either in connection with a scheduled closing under this Section 4.2, or in the case of an Accelerated Closing, the Adjusted EBITA shall be used to calculate a new Purchase Price (the "Adjusted Purchase Price"), which calculations shall also be set forth on the Post Closing Statement. If the Adjusted EBITA is lower than the Closing EBITA by more than the Threshold Amount, then each Management Stockholder who sold Management Shares shall pay to Connector an amount equal to (i) the difference between the Purchase Price and the Purchaser equallyAdjusted Purchase Price (ii) multiplied by the number of Management Shares sold by such Management Stockholder to Connector. If the Adjusted EBITA is higher than the Closing EBITA by more than the Threshold Amount, then Connector shall pay to each Management Stockholder who sold Management Shares an amount equal to (A) the difference between the Adjusted Purchase Price and the Purchase Price (B) multiplied by the number of Management Shares sold by such Management Stockholder to Connector. If it is shown, in any Post Closing Statement delivered subsequent to the first Post Closing Statement delivered hereunder, that the relevant Post Closing Adjustments would have an impact on the EBITA or Adjusted EBITA used with respect to a prior closing under this Section 4.2, then such Post Closing Statement shall set forth revised calculations with respect to such EBITA or Adjusted EBITA (the "Revised EBITA") and Purchase Price or Adjusted Purchase Price (the "Revised Purchase Price"), as the case may be. If a Revised EBITA is lower than the applicable Adjusted or Closing EBITA, as the case may be, by more than the Threshold Amount, then each Management Stockholder who sold Management Shares shall pay to Connector an amount equal to (1) the difference between the Adjusted Purchase Price or the Purchase Price, as the case may be, and the Revised Purchase Price (2) multiplied by the number of Management Shares sold by such Management Stockholder to Connector. If a Revised EBITA is higher than the applicable Adjusted or Closing EBITA, as the case may be, by more than the Threshold Amount, then Connector shall pay to each Management Stockholder who sold Management Shares an amount equal to (aa) the difference between the Revised Purchase Price and the Adjusted Purchase Price or the Purchase Price, as the case may be, (bb) multiplied by the number of Management Shares sold by such Management Stockholder to Connector. The date upon which Management Stockholders shall deliver any objections to any Post Closing Statement to Connector within five (5) business days of receipt. Any disputes regarding the Post Closing Statement not resolved by the parties within thirty (30) calendar days after the receipt by Connector of any objections of the Management Stockholders shall be resolved by a "big six" accounting firm mutually acceptable to the parties. The determination of any accounting firm so selected shall be conclusive and binding. The fees and expenses of such accounting firm acting under this Agreement shall be shared equally among Connector and the Management Stockholders. Upon the agreement or final determination by an accounting firm pursuant to the provisions of this Section, Connector shall make appropriate payments, or the Management Stockholders shall make appropriate refunds, within five (5) business days after such agreement is reached or upon which the Final Purchase Price is established, shall be herein called the “Final Settlement Datefinal determination.” In the event
Appears in 1 contract
Samples: Management Stockholders Agreement (Oak Industries Inc)
Post-Closing Adjustments. As soon as practicable 2.4.1 Within forty-five (45) days after the ClosingClosing Date, but in no event later than one hundred eighty (180) days thereafter, Seller Buyer shall prepare and deliver to Purchaser the Sellers Representative a final settlement statement (the “Final Settlement Closing Date Statement”) setting forth each adjustment or payment that was not finally determined Buyer’s calculation of: (i) the actual Net Working Capital as of the Closing (the “Actual Net Working Capital”), (ii) the actual amount of Indebtedness of the Company and showing its Subsidiaries as of the calculation Closing (the “Actual Company Indebtedness”), (iii) the actual amount of Cash of the Company and its Subsidiaries as of the Closing (the “Actual Company Cash”) and (iv) the actual amount of Company Transaction Expenses as of the Closing (the “Actual Company Transaction Expenses”). If the Sellers Representative has any objections to the Closing Date Statement as prepared by Buyer, the Sellers Representative may, within forty-five (45) days after the Sellers Representative’s receipt thereof (the “Notice Period”), give written notice (the “Notice”) to Buyer specifying in reasonable detail such adjustments objections and the resulting Final Purchase Pricebasis therefor, and the calculations which the Sellers Representative has determined in good faith are necessary to eliminate such objections. Seller If the Sellers Representative does not deliver the Notice within the Notice Period, Buyer’s determinations in the Closing Date Statement shall make its workpapers be final, binding and other information available to Purchaser to review conclusive on the Parties. If the Sellers Representative provides the Notice within the Notice Period, the Sellers Representative and Buyer shall negotiate in order to confirm good faith during the adjustments shown on Seller’s draft. As soon as practicable fifteen (15)-Business Day period after receipt the date of the Final Settlement Statement, but in no event later than sixty (60) days thereafter, Purchaser shall deliver to Seller a written report containing any changes that Purchaser proposes to make to the Final Settlement Statement. Any failure by Purchaser to deliver to Seller the written report detailing Purchaser’s proposed changes to the Final Settlement Statement within sixty (60) days following PurchaserBuyer’s receipt of the Final Settlement Statement shall be deemed an acceptance by Purchaser of Notice (the Final Settlement Statement as submitted by Seller. The parties shall agree with respect “Resolution Period”) to resolve any disputes regarding the changes proposed by Purchaser, if any, no later than sixty (60) days after Seller receives from Purchaser the written report described above containing Purchaser’s proposed changesClosing Date Statement. If the Purchaser Sellers Representative and Buyer are unable to resolve all such disputes within the Seller cannot Resolution Period, then agree upon within fifteen (15) Business Days after the Final Settlement Statement, the determination expiration of the amount of the Final Settlement Statement Resolution Period, all unresolved disputes shall be submitted to a an independent accounting firm, to be mutually agreed firm of independent public accountants upon by the Sellers Representative and Buyer (the “Accounting FirmArbitrator”), who shall be engaged to provide a final, binding and conclusive resolution of all such unresolved disputes within thirty (30) Business Days after such engagement. The Arbitrator shall act as an independent arbitrator to determine, based solely on the presentations by the Sellers Representative and Buyer and not by independent review, only those issues that remain in dispute, and the Arbitrator may not assign a value to any particular item that is greater than the greatest value for such item claimed by either Buyer or the Sellers Representative or less than the lowest value for such item claimed by either Buyer or the Sellers Representative, in US_ACTIVE-116890188.17-330225-00006 each case, as presented to the Arbitrator. Upon the final resolution of all such disputed items, the Arbitrator shall issue a written report detailing its final calculation of such disputed items. The determination by of the Accounting Firm Arbitrator shall be final, binding and conclusive and binding on the parties hereto Parties, and shall be enforceable against any party hereto in any court of competent jurisdiction. Any costs the fees and expenses incurred by of the Accounting Firm pursuant to this Section 12.1 Arbitrator shall be borne by the Seller Sellers (on the one hand) and Buyer (on the Purchaser equallyother hand) in proportion to the amounts by which their proposals differed from the Arbitrator’s final determination. The date upon which In connection with the resolution of any such agreement is reached or upon which dispute, each Party (the Final Purchase Price is establishedSellers on the one hand and Buyer on the other) shall pay its own fees and expenses, including legal, accounting and consultant fees and expenses. Notwithstanding anything to the contrary in this Agreement, any disputes regarding amounts shown in the Closing Date Statement shall be herein called the “Final Settlement Dateresolved as set forth in this Section 2.4.” In the event
Appears in 1 contract
Samples: Stock Purchase Agreement (Prestige Brands Holdings, Inc.)
Post-Closing Adjustments. As soon as practicable after On or before the Closing, but in no event later than one hundred eighty third (1803rd) days thereafterBusiness Day following the expiration of the Cure Period, Seller shall prepare and deliver to Purchaser Buyer, in accordance with this Agreement and generally accepted accounting principles, a final settlement statement (the “Final Settlement Statement”) setting forth each adjustment or payment to the Purchase Price that was not finally determined as of included in the Closing Preliminary Settlement Statement or any necessary revisions to adjustments that were included in the Preliminary Settlement Statement and showing the calculation of such adjustments, which adjustments shall be in accordance with the principles of this Agreement, and based to the resulting Final Purchase Price. Seller shall make its workpapers extent possible on actual credits, charges, receipts and other information available to Purchaser to review in order to confirm items before and after the adjustments shown on Seller’s draftEffective Time. As soon as practicable after Within thirty (30) days of receipt of the Final Settlement Statement, but in no event later than sixty (60) days thereafter, Purchaser Buyer shall deliver to Seller a written report containing any changes that Purchaser Buyer proposes to make be made to the Final Settlement Statement. Any failure by Purchaser The Parties shall negotiate in good faith and undertake to deliver to Seller the written report detailing Purchaser’s proposed changes to the Final Settlement Statement within sixty (60) days following Purchaser’s receipt of the Final Settlement Statement shall be deemed an acceptance by Purchaser of the Final Settlement Statement as submitted by Seller. The parties shall agree with respect to the changes proposed by Purchaser, if any, amounts due pursuant to such Final Settlement Statement no later than sixty thirty (6030) days after Seller receives from Purchaser the Buyer’s submission of its written report described above containing Purchaser’s proposed changes. If the Purchaser and the hereunder to Seller cannot then agree upon the Final Settlement Statement, the determination of the amount of the Final Settlement Statement shall be submitted to a mutually agreed firm of independent public accountants (the “Accounting Firm”). The determination by the Accounting Firm shall be conclusive and binding on the parties hereto and shall be enforceable against any party hereto in any court of competent jurisdiction. Any costs and expenses incurred by the Accounting Firm pursuant to this Section 12.1 shall be borne by the Seller and the Purchaser equally. The date upon which such agreement is reached or upon which the Final Purchase Price is established, shall be herein called the “Final Settlement Date”). Buyer shall, within seven (7) days of the Final Settlement Date, pay to Seller, or Seller shall pay to Buyer, whatever the case may be, in immediately available funds the final settlement adjustment amount set forth therein. Any disputed items that cannot be resolved by the mutual agreement of the Parties, shall be removed from the Final Settlement Statement and submitted to arbitration to a mutually agreeable arbitrator selected by the Parties and resolved as if such disputed item was a Disputed Matter in accordance with the procedures set forth in Article XII. Notwithstanding anything to the contrary set forth herein, there shall be no further Purchase Price adjustments pursuant to Section 3.2 for any item not included in the Final Settlement Statement delivered by Seller (or Buyer’s written report, if any, delivered with respect thereto) in accordance with the provisions of this Section 10.2.” In the event
Appears in 1 contract
Samples: Purchase and Sale Agreement (Diamondback Energy, Inc.)
Post-Closing Adjustments. As soon as practicable after the Closing, but in no event later than one hundred eighty Within thirty (18030) days thereafterafter Closing, Seller shall prepare and deliver to Purchaser Buyer, in accordance with this Agreement and generally accepted accounting principles, a final settlement statement (herein called the “Final Settlement Statement”) ), setting forth each adjustment or payment that was not finally determined as of the Closing or in accordance with this Article I, and showing the calculation of such adjustments and the resulting Final Purchase Price. Seller shall make its workpapers and other information available to Purchaser to review in order to confirm the adjustments shown on Seller’s draftadjustments. As soon as practicable after receipt of the Final Settlement Statement, but in no event later than sixty (60) days thereafter, Purchaser Buyer shall deliver to Seller a written report containing any changes that Purchaser Buyer proposes to make be made to the Final Settlement Statement. Any failure by Purchaser The Parties shall undertake to deliver to Seller the written report detailing Purchaser’s proposed changes agree with respect to the Final Settlement Statement within sixty amounts due pursuant to such post-Closing adjustment no later than ten (6010) days following Purchaserafter Buyer’s receipt of the Final Settlement Statement shall be deemed an acceptance by Purchaser of the Final Settlement Statement as submitted by Seller. The parties shall agree with respect to the changes proposed by Purchaser, if any, no later than sixty (60) days after Seller receives from Purchaser the written report described above containing Purchaser’s proposed changes. If the Purchaser and the Seller cannot then agree upon the Final Settlement Statement, the determination of the amount of the Final Settlement Statement shall be submitted to a mutually agreed firm of independent public accountants (the “Accounting Firm”). The determination by the Accounting Firm shall be conclusive and binding on the parties hereto and shall be enforceable against any party hereto in any court of competent jurisdiction. Any costs and expenses incurred by the Accounting Firm pursuant to this Section 12.1 shall be borne by the Seller and the Purchaser equally. The date upon which such agreement is reached or upon which the Final Purchase Price is established, shall be herein called the “Final Settlement Date.” In the event, as a result of the Final Settlement Statement (i) Buyer owes Seller additional monies, Buyer shall pay Seller or to Seller’s account (as designated by Seller) in immediately available federal funds such amount; or (ii) Seller owes Buyer monies, at Buyer’s option, Seller shall either: (a) pay Buyer or to Buyer’s account (as designated by Buyer) in immediately available federal funds such amount, or (b) or return that amount of shares of Common Stock earlier delivered to Seller based upon the same Common Stock Value Per Share used at Closing that equals that amount due Buyer. Payment or delivery of shares of Common Stock shall be made within five (5) days after the Final Settlement Date.
Appears in 1 contract
Samples: Asset Purchase and Sale Agreement (Warren Resources Inc)
Post-Closing Adjustments. (a) As soon as practicable after the Closing, but and in no any event later than one hundred eighty (180) within ninety days thereafter, Seller shall prepare and deliver to Purchaser a final settlement statement (the “Final Settlement Statement”) setting forth each adjustment or payment that was not finally determined as of following the Closing and showing the calculation of such adjustments and the resulting Final Purchase Price. Seller shall make its workpapers and other information available to Purchaser to review in order to confirm the adjustments shown on Seller’s draft. As soon as practicable after receipt of the Final Settlement StatementDate, but in no event later than sixty (60) days thereafter, Purchaser Buyer shall deliver to Seller a written report containing any changes that Purchaser proposes to make statement of Working Capital of Sea Coast as of the Closing Date, accompanied by a certificate of the chief financial officer of Buyer to the Final Settlement Statementeffect that such statement has been prepared on a basis consistent with the terms of this Agreement and the Closing Date Balance Sheet. Any failure by Purchaser to deliver to Seller the written report detailing Purchaser’s proposed changes to the Final Settlement Statement within sixty (60) Within twenty days following Purchaser’s receipt the delivery of such statement, Seller shall notify Buyer if Seller disagrees with such determination of the Final Settlement Statement Working Capital of Sea Coast as of the Closing Date. If Seller does not so notify Buyer, Seller shall be deemed an acceptance by Purchaser to have accepted such determination. If Seller does so notify Buyer that Seller disagrees with such determination, and Seller and Buyer are thereafter unable to agree within thirty days upon the amount of the Final Settlement Statement Working Capital of Sea Coast as submitted of the Closing Date, such amount shall be determined by an independent accounting firm selected by Buyer from a list of three nationally recognized independent accounting firms provided by Seller. The parties determination by such accounting firm shall agree with respect to be final and binding on Buyer and Seller, and the changes proposed fees and expenses of such accounting firm shall be borne equally by PurchaserSeller, if anyon the one hand, no later than sixty (60) days after Seller receives from Purchaser and Buyer, on the written report described above containing Purchaser’s proposed changesother hand. If the Purchaser and the Seller cannot then agree upon the Final Settlement Statement, the determination value of the amount Working Capital of Sea Coast as of the Final Settlement Statement shall be submitted to a mutually agreed firm of independent public accountants (the “Accounting Firm”). The determination by the Accounting Firm shall be conclusive and binding on the parties hereto and shall be enforceable against any party hereto in any court of competent jurisdiction. Any costs and expenses incurred by the Accounting Firm Closing Date, as finally determined pursuant to this Section 12.1 2.4, is less than $800,000, then Seller shall be borne by promptly pay Buyer the Seller difference between $800,000 and the Purchaser equallyWorking Capital of Sea Coast as of the Closing Date by wire transfer to an account designated in writing by Buyer or by a bank cashier’s check made payable to Buyer, as specified by Buyer. The date upon which such agreement If the value of the Working Capital of Sea Coast as of the Closing Date, as finally determined pursuant to this Section 2.4, is reached greater than $800,000, then Buyer shall promptly pay Seller the difference between the Working Capital of Sea Coast as of the Closing Date and $800,000 by wire transfer to an account designated in writing by Seller or upon which the Final Purchase Price is establishedby a bank cashier’s check made payable to Seller, shall be herein called the “Final Settlement Dateas specified by Seller.” In the event
Appears in 1 contract
Samples: Membership Interest Purchase Agreement (K-Sea Transportation Partners Lp)
Post-Closing Adjustments. As soon as practicable after the Closing, but in no event later than one hundred eighty (180) days thereafter, Seller shall prepare and deliver to Purchaser a final settlement statement (the “Final Settlement Statement”) setting forth each adjustment or payment that was not finally determined as of 2.1 Post-Closing Net Equity Adjustment based on the Closing and showing the calculation of such adjustments and the resulting Final Purchase Price. Seller shall make its workpapers and other information available to Purchaser to review in order to confirm the adjustments shown on Seller’s draft. As soon as practicable after receipt of the Final Settlement Statement, but in no event later than sixty (60) days thereafter, Purchaser shall deliver to Seller a written report containing any changes that Purchaser proposes to make to the Final Settlement Statement. Any failure by Purchaser to deliver to Seller the written report detailing Purchaser’s proposed changes to the Final Settlement Statement within sixty (60) days following Purchaser’s receipt of the Final Settlement Statement shall be deemed an acceptance by Purchaser of the Final Settlement Statement as submitted by Seller. The parties shall agree with respect to the changes proposed by Purchaser, if any, no later than Date Balance Sheet Within sixty (60) days after Seller receives from Purchaser the written report described above containing Purchaser’s proposed changesClosing, the Parent shall engage an accounting firm to audit a balance sheet, prepared in accordance with generally accepted accounting principles ("GAAP"), of the Company as of 5:00 PM (EDT) on the day of the Closing (the "Closing Date Balance Sheet"). The Closing Date Balance Sheet will utilize the accrual method of accounting notwithstanding any other accounting method(s) that the Company may have been using in connection with its financial statements and taxes. If the Purchaser and aggregate stockholders' equity as shown on the Seller cannot then agree upon Closing Date Balance Sheet (which shall mean total assets, exclusive of any doubtful accounts receivable, less total liabilities, inclusive of any contingent liabilities) is less than $100,000 (the Final Settlement Statementamount of such shortfall being hereafter known as the "Net Equity Deficiency"), the Stockholder shall pay to BOL, within 10 days of the date of determination of the amount Net Equity Deficiency (subject to the dispute resolution procedure set forth in Section 2.3 below) (i) 45% of the Final Settlement Statement Net Equity Deficiency in cash, by certified check or by wire transfer of immediately available funds, and (ii) 55% of the Net Equity Deficiency in shares of common stock of the Parent which shall be submitted valued at the "average Nasdaq National Market value" as defined above for the twenty (20) business day period immediately preceding the date the parties reach agreement as to any Net Equity Deficiency. Notwithstanding the foregoing or any language to the contrary in the Escrow Agreement attached hereto, the Parent shall have the option, at its sole discretion, to receive shares of Parent Stock necessary to satisfy all or a mutually agreed firm portion of independent public accountants the Net Equity Deficiency from the Escrow Shares (provided that such action would not reduce the “Accounting Firm”stock portion of the Merger Consideration below 40% or otherwise impair the intended tax-free reorganization structure of the Merger) or from the Stockholder directly (i.e. not from the Escrow Shares). The determination , with any balance due to be paid in cash by the Accounting Firm shall be conclusive and binding on the parties hereto and shall be enforceable against any party hereto in any court of competent jurisdiction. Any costs and expenses incurred by the Accounting Firm pursuant to this Section 12.1 shall be borne by the Seller and the Purchaser equally. The date upon which such agreement is reached or upon which the Final Purchase Price is established, shall be herein called the “Final Settlement DateStockholder as provided above.” In the event
Appears in 1 contract
Samples: Agreement and Plan of Merger and Reorganization (Bizness Online Com)
Post-Closing Adjustments. As soon as practicable after (a) Acquiror shall deliver to the ClosingUnit Holders’ Representative, but in no event later than one hundred eighty within ninety (18090) days thereafterfollowing the Closing Date, Seller shall prepare and deliver to Purchaser a final settlement statement (the “Final Settlement Statement”) notice setting forth Acquiror’s calculation of each adjustment or payment that was not finally determined as of the Closing Funded Indebtedness, Closing Net Working Capital, Closing Transaction Expenses and showing the calculation Post-Closing Adjustment Amount based thereon (assuming each of the same had been finally determined pursuant to this Section 2.5) (“Post-Closing Adjustment Notice”), together with documentation reasonably necessary to support Acquiror’s calculations thereof and shall give the Unit Holders’ Representative access, during normal business hours and upon reasonable notice, to such of the employees and books and records of the Company and the Subsidiaries as the Unit Holders’ Representative may reasonably request as part of its review of such adjustments and the resulting Final Purchase Price. Seller shall make its workpapers and other information available to Purchaser to review in order to confirm the adjustments shown on Seller’s draft. As soon as practicable after receipt of the Final Settlement Statement, but in no event later than sixty (60) days thereafter, Purchaser shall deliver to Seller a written report containing any changes that Purchaser proposes to make to the Final Settlement Statement. Any failure by Purchaser to deliver to Seller the written report detailing Purchaser’s proposed changes to the Final Settlement Statement within sixty (60) days following Purchaser’s receipt of the Final Settlement Statement shall be deemed an acceptance by Purchaser of the Final Settlement Statement as submitted by SellerPost-Closing Adjustment Notice. The parties shall agree Unit Holders’ Representative must deliver written notice to Acquiror setting forth in reasonable detail any objections it has with respect to the changes proposed by Purchaser, if any, Post-Closing Adjustment Notice no later than sixty thirty (6030) days after Seller receives from Purchaser the written report described above containing Purchaser’s proposed changesdate on which Acquiror delivered the Post-Closing Adjustment Notice (the “Notice of Objection”). If the Purchaser and Unit Holders’ Representative does not so deliver the Seller cannot then agree upon the Final Settlement StatementNotice of Objection within such thirty (30) day period, the determination of the amount of the Final Settlement Statement Post-Closing Adjustment Notice shall be submitted to a mutually agreed firm of independent public accountants (the “Accounting Firm”). The determination by the Accounting Firm shall be become conclusive and binding on the parties hereto and shall be enforceable against any party hereto in any court of competent jurisdiction. Any costs and expenses incurred by the Accounting Firm pursuant to this Section 12.1 shall be borne by the Seller and the Purchaser equallyUnit Holders for all purposes of this Agreement. The date upon If the Unit Holders’ Representative does so deliver the Notice of Objection within such thirty (30) day period, then (i) any aspect of the Post-Closing Adjustment Notice to which such agreement there is reached or upon which no objection in the Final Purchase Price is established, Notice of Objection shall be herein called become conclusive and binding on the parties and the Unit Holders for all purposes of this Agreement and (ii) Acquiror and the Unit Holders’ Representative shall use good faith efforts to resolve all the objections contained in the Notice of Objection (the “Final Settlement DateObjections”) within such thirty (30) day period.” In the event
Appears in 1 contract
Samples: Agreement and Plan of Merger (Cablevision Systems Corp /Ny)
Post-Closing Adjustments. (a) As soon as practicable after the Closing, but relevant information is available and in no any event later than within one hundred and eighty (180) days thereafterafter Closing (but subject to Section 4.4(b)), Seller Vendor shall in good faith prepare and deliver to Purchaser a final settlement closing statement setting forth the actual Accounting Adjustments and Net Cash Adjustments (the “"Final Settlement Closing Statement”) setting forth each adjustment or payment that was not finally determined as "). To the extent reasonably required by Vendor, Purchaser shall assist in the preparation of the Final Closing Statement and showing shall make available sufficient staff to ensure the calculation Final Closing Statement is prepared in a timely manner. Purchaser shall make available to Vendor and its employees, agents, representatives and consultants, full and complete access during normal business hours to the Books and Records to enable Vendor to prepare the Final Closing Statement. The amounts set forth in the Final Closing Statement shall be final and binding upon Vendor and Purchaser unless Purchaser delivers to Vendor written notice disputing any amounts set forth in the Final Closing Statement and the specific grounds of such adjustments and dispute (the resulting Final Purchase Price. Seller shall make its workpapers and other information available to Purchaser to review in order to confirm the adjustments shown on Seller’s draft. As soon as practicable "Dispute Note") within thirty (30) days after receipt of the Final Settlement Statement, but in no event later than sixty (60) days thereafter, Purchaser shall deliver to Seller a written report containing any changes that Purchaser proposes to make to the Final Settlement Closing Statement. Any failure by Purchaser In such event, the Parties shall co-operate in good faith to deliver attempt to Seller resolve the written report detailing Purchaser’s proposed changes to matters in dispute and agree upon the Final Settlement Statement within sixty (60) days following Purchaser’s receipt of the Final Settlement Statement shall be deemed an acceptance by Purchaser of the Final Settlement Statement as submitted by Seller. The parties shall agree with respect to the changes proposed by Purchaser, if any, no later than sixty (60) days after Seller receives from Purchaser the written report described above containing Purchaser’s proposed changesactual Accounting Adjustments or Net Cash Adjustments. If the Purchaser and the Seller Parties cannot then resolve the matters in dispute and agree upon the Final Settlement Statementactual Accounting Adjustments or Net Cash Adjustments within ten (10) Business Days from receipt by Vendor of the Dispute Note, the determination of then the amount of the Final Settlement Statement actual Accounting Adjustments or Net Cash Adjustments shall be submitted to a mutually agreed determined by the chartered accounting firm of independent public accountants PriceWaterhouseCoopers ("PWC") within a period of ninety (90) days from the “Accounting Firm”)date such accounting firm is retained and each Party shall co-operate with PWC and shall make available to PWC such books and records as are within its possession or control as PWC may request in connection therewith. The determination by the Accounting Firm of PWC shall be conclusive final and binding on upon both Parties. The fees and expenses of the parties hereto and accounting firm of PWC shall be enforceable against any party hereto in any court of competent jurisdiction. Any costs and expenses incurred by shared equally between the Accounting Firm pursuant to this Section 12.1 shall be borne by the Seller and the Purchaser equally. The date upon which such agreement is reached or upon which the Final Purchase Price is established, shall be herein called the “Final Settlement DateParties.” In the event
Appears in 1 contract
Post-Closing Adjustments. As soon as practicable after the Closing, but in no event later than on or before one hundred eighty twenty (180120) days thereafterafter Closing, Seller Seller, with the assistance of Buyer's staff and with access to such records as necessary, shall prepare and deliver to Purchaser Buyer a final settlement statement (the “Final Settlement Statement”"FINAL SETTLEMENT STATEMENT") setting forth each adjustment or payment hereunder that was not finally determined as of the Closing and showing the calculation of such adjustments adjustment and the resulting Final Purchase Price. Seller shall make its workpapers and other information available to Purchaser to review in order to confirm final purchase price (the adjustments shown on Seller’s draft"FINAL PURCHASE PRICE"). As soon as practicable after receipt of the Seller's proposed Final Settlement Statement, but in no event later than on or before sixty (60) days thereafterafter receipt of Seller's proposed Final Settlement Statement, Purchaser Buyer shall deliver to Seller a written report containing any changes that Purchaser Buyer proposes to make to the Final Settlement Statement. Any Buyer's failure by Purchaser to deliver to Seller the a written report detailing Purchaser’s proposed changes to the proposed Final Settlement Statement within sixty (60) days following Purchaser’s receipt of the Final Settlement Statement by that date shall be deemed an acceptance by Purchaser Buyer of the Final Settlement Statement as submitted by Seller. The parties shall endeavor to agree with respect to the changes proposed by PurchaserBuyer, if any, no later than sixty thirty (6030) days after receipt by Seller receives from Purchaser of Buyer's comments to the written report described above containing Purchaser’s proposed changes. If the Purchaser and the Seller cannot then agree upon the Final Settlement Statement, the determination of the amount of the Final Settlement Statement shall be submitted to a mutually agreed firm of independent public accountants (the “Accounting Firm”). The determination by the Accounting Firm shall be conclusive and binding on the parties hereto and shall be enforceable against any party hereto in any court of competent jurisdiction. Any costs and expenses incurred by the Accounting Firm pursuant to this Section 12.1 shall be borne by the Seller and the Purchaser equally. The date upon which such agreement is reached or upon which the Final Purchase Price is established, established shall be herein called the “"FINAL SETTLEMENT DATE." If the Final Purchase Price is more than the Closing Amount, Buyer shall pay Seller the amount of such difference. If the Final Purchase Price is less than the Closing Amount, Seller shall pay to Buyer the amount of such difference. Any payment by Buyer or Seller shall be by wire transfer in immediately available funds. Any such payment shall be made within five (5) days of the Final Settlement Date.” In the event
Appears in 1 contract
Samples: Purchase and Sale Agreement (Williams Companies Inc)
Post-Closing Adjustments. As soon promptly as is practicable after the Closing, but and in no any event later than one hundred eighty (180) days thereafter, Seller shall prepare and deliver to Purchaser a final settlement statement (the “Final Settlement Statement”) setting forth each adjustment or payment that was not finally determined as of the Closing and showing the calculation of such adjustments and the resulting Final Purchase Price. Seller shall make its workpapers and other information available to Purchaser to review in order to confirm the adjustments shown on Seller’s draft. As soon as practicable after receipt of the Final Settlement Statement, but in no event later than sixty (60) days thereafter, Purchaser shall deliver to Seller a written report containing any changes that Purchaser proposes to make to the Final Settlement Statement. Any failure by Purchaser to deliver to Seller the written report detailing Purchaser’s proposed changes to the Final Settlement Statement within sixty (60) days following Purchaser’s receipt the Closing, Seller will prepare and deliver to Buyer a balance sheet dated as of the Closing Date (the "Final Balance Sheet") and a statement setting forth the proposed calculation on the Net Cur- rent Asset Value (the "Statement"), reviewed by BDO Xxxxxxx. The Final Balance Sheet and Statement shall be prepared in accordance with GAAP and on a basis consistent with the audited balance sheet of Seller as at December 31, 1994 and shall be reviewed by BDO Xxxxxxx. Buyer shall permit Seller and BDO Xxxxxxx access to all of the accounting records of the Business in Buyer's possession as may be necessary for the preparation and certification of such balance sheet and statement. Seller shall permit Buyer and its independent certified public accountant to review all accounting records and all work papers and computa- tions used in the preparation of the Final Settlement Balance Sheet and Statement. If Buyer does not notify Seller within thirty (30) days of receiving the Final Balance Sheet and Statement that Buyer disagrees with the calculation of the Net Current Asset Value reflected therein, then the Net Current Asset Value shall be deemed an acceptance by Purchaser the amount reflected in the Statement. If Buyer notifies Seller that Buyer disagrees with such calculation within such thirty (30) day period, Seller and Buyer shall negotiate in good faith to resolve the dispute. If, within fifteen (15) days from the date notice of dispute is given, Seller and Buyer cannot agree on the resolution of the Final Settlement Statement as submitted dispute, then the dispute shall be resolved a "Big 6" accounting firm (other than KPMG Peat Marwick) chosen by Seller. The parties shall agree with respect to Seller and Buyer, provided that, in the changes proposed by Purchaser, if any, no later than sixty (60) days after event that Seller receives from Purchaser the written report described above containing Purchaser’s proposed changes. If the Purchaser and the Seller Buyer cannot then agree upon the Final Settlement Statementon a firm, the determination Seller and Buyer will each choose two of the amount of the Final Settlement Statement shall firms referenced previously in this sentence and a firm will be submitted to chosen from those four by a mutually agreed firm of independent public accountants (the “Accounting Firm”). The determination by the Accounting Firm shall be conclusive and binding on the parties hereto and shall be enforceable against any party hereto in any court of competent jurisdiction. Any costs and expenses incurred by the Accounting Firm pursuant to this Section 12.1 shall be borne by the Seller and the Purchaser equally. The date upon which such agreement is reached or upon which the Final Purchase Price is established, shall be herein called the “Final Settlement Daterandom draw.” In the event
Appears in 1 contract
Post-Closing Adjustments. As soon as practicable after the Closing, but in no event later than on or before one hundred eighty twenty (180120) days thereafterafter Closing, Seller Seller, with the assistance of Buyer’s staff and with access to such records as necessary, shall prepare and deliver to Purchaser Buyer a final settlement statement (the “Final Settlement Statement”) setting forth each adjustment or payment that was not finally determined as of the Closing and showing the calculation of such adjustments adjustment and the resulting final purchase price (the “Final Purchase Price. Seller shall make its workpapers and other information available to Purchaser to review in order to confirm the adjustments shown on Seller’s draft”). As soon as practicable after receipt of the Seller’s proposed Final Settlement Statement, but in no event later than sixty on or before fifteen (6015) days thereafterafter receipt of Seller’s proposed Final Settlement Statement, Purchaser Buyer shall deliver to Seller a written report containing any changes that Purchaser Buyer proposes to make to the Final Settlement Statement. Any Buyer’s failure by Purchaser to deliver to Seller the a written report detailing Purchaser’s proposed changes to the proposed Final Settlement Statement within sixty (60) days following Purchaser’s receipt of the Final Settlement Statement by that date shall be deemed an acceptance by Purchaser Buyer of the Final Settlement Statement as submitted by Seller. The parties shall endeavor to agree with respect to the changes proposed by PurchaserBuyer, if any, no later than sixty fifteen (6015) days after receipt by Seller receives from Purchaser of Buyer’s comments to the written report described above containing Purchaser’s proposed changes. If the Purchaser and the Seller cannot then agree upon the Final Settlement Statement, the determination of the amount of the Final Settlement Statement shall be submitted to a mutually agreed firm of independent public accountants (the “Accounting Firm”). The determination by the Accounting Firm shall be conclusive and binding on the parties hereto and shall be enforceable against any party hereto in any court of competent jurisdiction. Any costs and expenses incurred by the Accounting Firm pursuant to this Section 12.1 shall be borne by the Seller and the Purchaser equally. The date upon which such agreement is reached or upon which the Final Purchase Price is established, established for the transaction shall be herein called the “Final Settlement Date.” In If the eventFinal Purchase Price is more than the Closing Amount, Buyer shall pay Seller the amount of such difference. If the Final Purchase Price is less than the Closing Amount, Seller shall pay to Buyer the amount of such difference. Any payment by Buyer or Seller shall be by wire transfer in immediately available funds. Any such payment shall be within five (5) days of the Final Settlement Date.
Appears in 1 contract
Post-Closing Adjustments. As soon Within 60 days of the Closing Date (the “Review Period”), Buyer may prepare its calculation of (y) the Marijuana Inventory included in the Purchased Assets at Closing (the “Closing Marijuana Inventory”) and (z) the cash in each point-of-sale system included as practicable after Purchased Assets at the Closing, but in no event later than one hundred eighty Closing (180the “Closing Cash”) days thereafter, Seller shall prepare and deliver to Purchaser its calculation thereof in a final settlement closing statement (the “Final Settlement Closing Statement”) to Representative for Representative’s review. Representative and Representative’s professional advisors will have, upon request, reasonable access during regular business hours to Buyer’s books and records to the extent necessary for such review. If Representative disagrees with any item set forth in the Closing Statement, Representative may deliver a written notice to Buyer setting forth each adjustment or payment that was not finally determined as all such disagreements in reasonable detail (the “Objection Notice”), which Objection Notice must be delivered, if at all, to Buyer within ten (10) days following Buyer’s delivery of the Closing and showing Statement to Representative (the calculation of such adjustments “Objection Period”). Representative and the resulting Final Purchase PriceSeller Parties will be deemed to have agreed with all other items contained in the Closing Statement which are not objected to in the Objection Notice. If Representative does not deliver an Objection Notice within the Objection Period, then Representative and the Seller shall make its workpapers and other information available Parties will be deemed to Purchaser to review have agreed entirely with items set forth on the Closing Statement. If an Objection Notice is delivered within the Objection Period, (i) in order to confirm the adjustments shown on Seller’s draft. As soon as practicable after receipt 30-day period following delivery of the Final Settlement StatementObjection Notice, but Buyer and Representative will use reasonable efforts to reach an agreement on the disputed items or amounts set forth in no event later than sixty the Objection Notice and (60ii) days thereafter, Purchaser shall deliver if Buyer and Representative are unable to Seller a written report containing any changes that Purchaser proposes to make to the Final Settlement Statement. Any failure by Purchaser to deliver to Seller the written report detailing Purchaser’s proposed changes to the Final Settlement Statement within sixty (60) days following Purchaser’s receipt of the Final Settlement Statement shall be deemed reach an acceptance by Purchaser of the Final Settlement Statement as submitted by Seller. The parties shall agree agreement during such 30-day period with respect to the changes proposed all disputed items or amounts, such disputed items or amounts will be resolved by PurchaserCxxxx LLP or, if anyCxxxx LLP is not available or unwilling to serve in such role, no later than sixty any other independent certified public accounting firm as reasonably designated by Buyer (60) days after Seller receives from Purchaser “Settlement Accountant”). Such costs of the written report described above containing Purchaser’s proposed changesSettlement Accountant will be borne equally by Bxxxx, on the one hand, and Seller, on the other hand. If the Purchaser and Closing Marijuana Inventory as finally determined in accordance with this Section 2.4(b) (“Final Marijuana Inventory”) or the Closing Cash as finally determined in accordance with this Section 2.4(b) (the “Final Closing Cash”) falls short of the Minimum Marijuana Inventory or the Minimum Cash, respectively (the aggregate amount of any such deficiency or deficiencies, a “Deficiency”), Buyer may offset any amounts due to any Seller cannot then agree upon the Final Settlement Statement, the determination of Parties hereunder by the amount of the Final Settlement Statement shall Deficiency, and any amounts not offset by Buyer will be submitted to a mutually agreed firm of independent public accountants paid directly by Seller (or the “Accounting Firm”Equityholders in their respective Pro Rata Portions). The determination by For purposes of clarity, if Bxxxx does not deliver the Accounting Firm shall Closing Statement within the Review Period, no adjustment will be conclusive and binding on the parties hereto and shall be enforceable against any party hereto in any court of competent jurisdiction. Any costs and expenses incurred by the Accounting Firm made pursuant to this Section 12.1 shall be borne by the Seller and the Purchaser equally. The date upon which such agreement is reached or upon which the Final Purchase Price is established, shall be herein called the “Final Settlement Date2.4(b).” In the event
Appears in 1 contract
Samples: Asset Purchase Agreement (Medicine Man Technologies, Inc.)
Post-Closing Adjustments. As soon as practicable practicable, but no later than thirty (30) days after the ClosingClosing Date, but in no event later than one hundred eighty (180) days thereafterthe Independent Accountant, Seller on behalf of the Parties and pursuant to an engagement agreement reasonably acceptable to the Buyer and the Seller, shall prepare and deliver to Purchaser a final settlement statement the Buyer and the Seller an unaudited balance sheet of the Company as of the close of business on the Closing Date (the “Final Settlement StatementClosing Date Balance Sheet”) setting forth each adjustment or payment that was not finally determined in substantially the form of the September Balance Sheet attached hereto as Section 2(b)(ii) of the Disclosure Schedule. The Closing Date Balance Sheet shall include a calculation of the net working capital of the Company as of the close of business on the Closing Date (the “Closing Date Net Working Capital”) which shall be made, and showing presented on the Closing Date Balance Sheet, in the same manner as the calculation of such adjustments the September Net Working Capital is made and presented on the September Balance Sheet attached hereto as Section 2(b)(ii) of the Disclosure Schedule. The Closing Date Balance Sheet shall be prepared by the Independent Accountant in accordance with GAAP, as modified by the accounting principles used in preparing the September Balance Sheet (as reflected in Section 2(b)(ii) of the Disclosure Schedule). For the avoidance of doubt, the calculation of the September Net Working Capital does not, and the resulting Final Purchase Pricecalculation of the Closing Date Net Working Capital shall not, include any of the assets or liabilities identified in columns (B) through (E) of the September Balance Sheet attached hereto as Section 2(b)(ii) of the Disclosure Schedule. Seller The Independent Accountant shall also make its workpapers and other information available to Purchaser to review in order to confirm the adjustments shown on Seller’s draft. As soon as practicable after receipt of the Final Settlement Statement, but in no event later than sixty (60) days thereafter, Purchaser shall deliver to Seller a written report containing any changes that Purchaser proposes to make to the Final Settlement Statement. Any failure by Purchaser to deliver to Seller the written report detailing Purchaser’s proposed changes to the Final Settlement Statement within sixty (60) days following Purchaser’s receipt of the Final Settlement Statement shall be deemed an acceptance by Purchaser of the Final Settlement Statement as submitted by Seller. The parties shall agree with respect to the changes proposed by Purchaser, if any, no later than sixty (60) days after Seller receives from Purchaser the written report described above containing Purchaser’s proposed changes. If the Purchaser Buyer and the Seller cannot then agree upon copies of all work papers and other documents and data as were used to prepare the Final Settlement Statement, Closing Date Balance Sheet (and any items therein) and the determination of the amount of the Final Settlement Statement shall be submitted to a mutually agreed firm of independent public accountants (the “Accounting Firm”)Closing Date Net Working Capital calculation. The determination by the Accounting Firm shall be conclusive Buyer and binding on the parties hereto and shall be enforceable against any party hereto in any court of competent jurisdiction. Any costs and expenses incurred by the Accounting Firm pursuant to this Section 12.1 shall be borne by the Seller shall have the right to dispute the Closing Date Balance Sheet (and any items therein) and the Purchaser equally. The date upon which such agreement is reached or upon which the Final Purchase Price is established, shall be herein called the “Final Settlement DateClosing Date Net Working Capital calculation and make any proposed adjustments thereto as provided in Section 2(b) (iii) hereto.” In the event
Appears in 1 contract
Post-Closing Adjustments. As soon as practicable after the Closing, but in no event later than one hundred eighty (180) days thereafter, Seller Xxxxxx shall prepare and by May 31, 2011 deliver to Purchaser a final settlement statement the Seller the Final Working Capital and Unpaid Transaction Expenses Schedule. Xxxxxx shall provide the Seller and its accounting and tax representatives, at the Seller’s sole cost and expense, with full and prompt access to the books and records of Energy Steel for purposes of validating the Final Working Capital and Unpaid Transaction Expenses Schedule. In the absence of any objections from the Seller within thirty (the “Final Settlement Statement”30) setting forth each adjustment or payment that was not finally determined as of the Closing and showing the calculation days following receipt of such adjustments and the resulting Final Purchase Price. Seller shall make its workpapers and other information available to Purchaser to review in order to confirm the adjustments shown on Seller’s draft. As soon as practicable after receipt calculation, Xxxxxx’x determination of the Final Settlement Statement, but in no event later than sixty (60) days thereafter, Purchaser shall deliver to Seller a written report containing any changes that Purchaser proposes to make to the Final Settlement Statement. Any failure by Purchaser to deliver to Seller the written report detailing Purchaser’s proposed changes to the Final Settlement Statement within sixty (60) days following Purchaser’s receipt of the Final Settlement Statement Working Capital and Unpaid Transaction Expenses Schedule shall be deemed an acceptance by Purchaser of the Final Settlement Statement as submitted by Seller. The parties shall agree with respect to the changes proposed by Purchaserconclusive, if any, no later than sixty (60) days after Seller receives from Purchaser the written report described above containing Purchaser’s proposed changes. If the Purchaser and the Seller cannot then agree upon the Final Settlement Statement, the determination of the amount of the Final Settlement Statement shall be submitted to a mutually agreed firm of independent public accountants (the “Accounting Firm”). The determination by the Accounting Firm shall be conclusive final and binding on the parties hereto for purposes of determining the Net Working Capital, Working Capital Surplus, Working Capital Deficit and the Actual Unpaid Transaction Expenses. However, such determination shall not affect any other of Xxxxxx’x or Buyer’s rights under this Agreement, including without limitation under Article 7. If Seller objects to the Final Working Capital and Unpaid Transaction Expenses Schedule within thirty (30) days following receipt of such calculation from Xxxxxx, the Seller shall deliver a written dispute notice to Xxxxxx which shall set forth the specific line items in dispute and provide the basis for such dispute in reasonable detail, including but not limited to a claim that Seller and Representatives have not been furnished adequate information to confirm or refute the determination of Xxxxxx. If, after ten (10) days from the date notice of a dispute is given hereunder, the Seller and Xxxxxx cannot agree on the resolution of all of the disputed items, the Final Working Capital and Unpaid Transaction Expenses Schedule shall be enforceable against adjusted to the extent of any items that are not in dispute, and the items still in dispute shall be referred to Xxxxx Xxxxxxxx LLP or another independent public accounting firm acceptable to both the Seller and Xxxxxx (the “Unrelated Accounting Firm”) to resolve the dispute, whose decision as to the issues in dispute shall be conclusive, final and binding upon the Seller and Xxxxxx for purposes of this Agreement. The Unrelated Accounting Firm shall address only those issues in dispute in accordance with the terms of this Section 2.2(b) and may not assign a value to any item greater than the greatest value for such item claimed by either party hereto in any court of competent jurisdictionor less than the smallest value for such item claimed by either party. Any costs The fees and expenses incurred by of the Unrelated Accounting Firm pursuant to this Section 12.1 shall be borne paid 50/50 by the Seller and the Purchaser equally. The date upon which such agreement is reached or upon which the Final Purchase Price is established, shall be herein called the “Final Settlement DateBuyer.” In the event
Appears in 1 contract
Post-Closing Adjustments. As soon as practicable (a) Sellers shall, within 30 days after the ClosingClosing Date, but in no event later than one hundred eighty (180) days thereafter, Seller shall prepare and deliver to Purchaser a final settlement proposed financial statement of certain financial information of the Business as of the close of business on the Effective Date (the “Final Settlement "Proposed Statement”) setting forth each adjustment or payment that was not finally determined "), and a statement of the General Account Reserves as of the Closing Date (the "Proposed Closing Statement"), each in the same format as the Effective Date Statement and showing in accordance with the calculation requirements of such adjustments Section 2.01(b)A-D, and a certification of the chief financial officers of Sellers that the data contained in the Proposed Statement and the resulting Final Purchase PriceProposed Closing Statement was obtained from the books and records of AFLIAC and FAFLIC and such data was computed in accordance with Massachusetts SAP applied consistently in all material respects and with Section 2.01(b)A-D. Promptly after its preparation, AFLIAC and FAFLIC shall deliver copies of the Proposed Statement and Proposed Closing Statement to Purchaser. Seller Purchaser shall make its workpapers and other information available to Purchaser have the right to review in order to confirm such statements and the adjustments shown on Seller’s draft. As soon as practicable Estimated Closing Financial Statement and comment thereon for a period of 90 days after receipt of the Final Settlement Proposed Statement and Proposed Closing Statement. Sellers agree that Purchaser and its accountants may have access to the accounting records of Sellers relating to their preparation of the Proposed Statement, but in no event later than sixty (60) days thereafter, Purchaser shall deliver to Seller a written report containing any changes that Purchaser proposes to make to Proposed Closing Statement and the Final Settlement StatementEstimated Closing Financial Statement and for the purpose of conducting its review. Any failure changes in the Proposed Statement, Proposed Closing Statement or the Estimated Closing Financial Statement that are agreed to by Purchaser to deliver to Seller the written report detailing Purchaser’s proposed changes to the Final Settlement Statement and Sellers within sixty (60) 90 days following Purchaser’s receipt of the Final Settlement Statement aforementioned delivery of such balance sheet by Sellers shall be deemed an acceptance by Purchaser incorporated into a final statement of the Final Settlement Statement Business as submitted by Seller. The parties shall agree with respect to the changes proposed by Purchaser, if any, no later than sixty (60) days after Seller receives from Purchaser the written report described above containing Purchaser’s proposed changes. If the Purchaser and the Seller cannot then agree upon the Final Settlement Statement, the determination of the amount close of business on the Effective Date, a final statement of the Business as of the close of business on the Closing Date, and a Final Settlement Closing Financial Statement shall be submitted to a mutually agreed firm of independent public accountants for the period from the Effective Date through the Closing Date, (the “Accounting Firm”). The determination by the Accounting Firm shall be conclusive and binding on the parties hereto and shall be enforceable against any party hereto in any court of competent jurisdiction. Any costs and expenses incurred by the Accounting Firm pursuant to this Section 12.1 shall be borne by the Seller and the Purchaser equally. The date upon which such agreement is reached or upon which the "Final Purchase Price is established, shall be herein called the “Final Settlement Date.” In the eventStatement," "
Appears in 1 contract
Samples: Asset Transfer and Acquisition Agreement (Allmerica Financial Corp)
Post-Closing Adjustments. As soon as practicable after the Closing, but in no event later than one hundred eighty Within thirty (18030) days thereafterafter Closing, Seller shall prepare and deliver to Purchaser Buyer, in accordance with this Agreement and generally accepted accounting principles, a final settlement statement (herein called the “Final Settlement Statement”) ), setting forth each adjustment or payment that was not finally determined as of the Closing or in accordance with this Article I, and showing the calculation of such adjustments and the resulting Final Purchase Price. Seller shall make its workpapers and other information available to Purchaser to review in order to confirm the adjustments shown on Seller’s draftadjustments. As soon as practicable after receipt of the Final Settlement Statement, but in no event later than sixty (60) days thereafter, Purchaser Buyer shall deliver to Seller a written report containing any changes that Purchaser Buyer proposes to make be made to the Final Settlement Statement. Any failure by Purchaser The Parties shall undertake to deliver to Seller the written report detailing Purchaser’s proposed changes agree with respect to the Final Settlement Statement within sixty amounts due pursuant to such post-Closing adjustment no later than ten (6010) days following Purchaserafter Buyer’s receipt of the Final Settlement Statement shall be deemed an acceptance by Purchaser of the Final Settlement Statement as submitted by Seller. The parties shall agree with respect to the changes proposed by Purchaser, if any, no later than sixty (60) days after Seller receives from Purchaser the written report described above containing Purchaser’s proposed changes. If the Purchaser and the Seller cannot then agree upon the Final Settlement Statement, the determination of the amount of the Final Settlement Statement shall be submitted to a mutually agreed firm of independent public accountants (the “Accounting Firm”). The determination by the Accounting Firm shall be conclusive and binding on the parties hereto and shall be enforceable against any party hereto in any court of competent jurisdiction. Any costs and expenses incurred by the Accounting Firm pursuant to this Section 12.1 shall be borne by the Seller and the Purchaser equally. The date upon which such agreement is reached or upon which the Final Purchase Price is established, shall be herein called the “Final Settlement Date.” In the event, as a result of the Final Settlement Statement (i) Buyer owes Seller additional monies, Buyer shall pay Seller or to Seller’s account (as designated by Seller) in immediately available federal funds such amount; or (ii) Seller owes Buyer monies, at Buyer’s option, Seller shall either: (a) pay Buyer or to Buyer’s account (as designated by Buyer) in immediately available federal funds such amount, or (b) return that amount of shares of Common Stock earlier delivered to Seller based upon the same Common Stock Value Per Share used at Closing that equals that amount due Buyer. Payment or delivery of shares of Common Stock shall be made within five (5) days after the Final Settlement Date.
Appears in 1 contract
Samples: Asset Purchase and Sale Agreement (Warren Resources Inc)
Post-Closing Adjustments. (a) As soon as practicable after the Closing, but in no event later than one hundred eighty ninety (18090) days thereafterafter Closing, Seller shall prepare and deliver to Purchaser Buyer, in accordance with GAAP, a final settlement statement (the “"Final Settlement Statement”") setting forth each adjustment or payment that was not finally determined as of the Closing and showing the calculation of such adjustments adjustment and the resulting final purchase price (the "Final Purchase Price. Seller shall make its workpapers and other information available to Purchaser to review in order to confirm the adjustments shown on Seller’s draft"). As soon as practicable after receipt of the Final Settlement Statement, but in no event later than sixty on or before thirty (6030) days thereafterafter receipt of Seller's proposed Final Settlement Statement, Purchaser Buyer shall deliver to Seller a written report containing any changes that Purchaser Buyer proposes to make to the Final Settlement Statement. Any Buyer's failure by Purchaser to deliver to Seller the a written report detailing Purchaser’s proposed changes to the Final Settlement Statement within sixty (60) days following Purchaser’s receipt of the Final Settlement Statement by that date shall be deemed an acceptance by Purchaser Buyer of the Final Settlement Statement as submitted by Seller. The parties shall agree with respect to the changes proposed by PurchaserBuyer, if any, no later than sixty fifteen (6015) days after receipt by Seller receives from Purchaser the written report described above containing Purchaser’s proposed changes. If the Purchaser and the Seller cannot then agree upon of Buyer's comments to the Final Settlement Statement, the determination of the amount of the Final Settlement Statement shall be submitted to a mutually agreed firm of independent public accountants (the “Accounting Firm”). The determination by the Accounting Firm shall be conclusive and binding on the parties hereto and shall be enforceable against any party hereto in any court of competent jurisdiction. Any costs and expenses incurred by the Accounting Firm pursuant to this Section 12.1 shall be borne by the Seller and the Purchaser equally. The date upon which such agreement is reached or upon which the Final Purchase Price is established, established for a transaction shall be herein called the “"Final Settlement Date.” In " If (1) the eventFinal Purchase Price is more than the Closing Amount, Buyer shall pay Seller the amount of such difference, or (2) the Final Purchase Price applicable to Buyer is less than the Closing Amount, Seller shall pay to Buyer the amount of such difference, in either event by wire transfer of immediately available funds. Payment by Buyer or Seller, as the case may be, shall be within five (5) days of the Final Settlement Date. The Final Settlement Statement and the Final Purchase Price paid thereunder shall be a final settlement as between Buyer and Seller for all adjustments to the Purchase Price.
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Post-Closing Adjustments. As soon as practicable after the ClosingClosing Date, but in no event later than one hundred eighty (180) days thereafter, Seller Buyer shall cause its accountants to prepare and deliver to Purchaser the Representative a final settlement statement consolidated balance sheet for CAS (the “Final Settlement StatementClosing Date Balance Sheet”) setting forth and a calculation of the Current Asset Value Shortfall, in each adjustment or payment that was not finally determined case, measured as of the close of business on the Closing and showing the calculation of such adjustments and the resulting Final Purchase PriceDate, prepared in accordance with United States generally accepted accounting principles (“GAAP”). Seller Buyer shall make endeavor in good faith to cause its workpapers and other information available to Purchaser to review in order to confirm the adjustments shown on Seller’s draft. As soon as practicable after receipt of the Final Settlement Statement, but in no event later than sixty (60) days thereafter, Purchaser shall deliver to Seller a written report containing any changes that Purchaser proposes to make to the Final Settlement Statement. Any failure by Purchaser accountants to deliver to Seller the written report detailing Purchaser’s proposed changes Representative the Closing Date Balance Sheet and calculation of the Current Asset Value Shortfall within 60 days after the Closing Date; provided, however, that if the Closing Date Balance Sheet is not delivered to the Final Settlement Statement Representative by Buyer’s accountants within sixty 60 days after the Closing Date, the Estimated Closing Date Balance Sheet shall be the final consolidated balance sheet of CAS for purposes of this Section 3. Buyer shall also make available to the Representative copies of all work papers and other documents and data as was used to calculate the Closing Date Balance Sheet, and Buyer shall set out all proposed adjustments in reasonable detail in a written statement delivered to Representative. The Representative shall have the right to dispute the Closing Date Balance Sheet (60and any items therein) days following Purchaser’s receipt and the accompanying calculation of the Final Settlement Statement Current Asset Value Shortfall and make any proposed adjustments thereto as provided in Section 3(c) below. If it is determined after completion of the time and procedure described in Section 3(c) below that there is a Current Asset Value Shortfall in excess of the estimated Current Asset Value Shortfall and the Representative does not dispute such determination as described in Section 3(c) below, an amount equal to the excess Current Asset Value Shortfall multiplied by 30% shall be deemed an acceptance by Purchaser of deducted from the Final Settlement Statement as submitted by Seller. The parties shall agree with respect to the changes proposed by Purchaser, if any, no later than sixty (60) days after Seller receives from Purchaser the written report described above containing Purchaser’s proposed changes. If the Purchaser and the Seller cannot then agree upon the Final Settlement Statement, the determination of the amount of the Final Settlement Statement shall be submitted to a mutually agreed firm of independent public accountants (the “Accounting Firm”). The determination by the Accounting Firm shall be conclusive and binding on the parties hereto and shall be enforceable against any party hereto in any court of competent jurisdiction. Any costs and expenses incurred by the Accounting Firm pursuant to this Section 12.1 shall be borne by the Seller and the Purchaser equally. The date upon which such agreement is reached or upon which the Final Purchase Price is established, payable under Sections 2(a)(ii) and 2(a)(iii) by Buyer (such deduction to be allocated to amounts payable under one or both of such Sections as Buyer shall be herein called the “Final Settlement Datedetermine in its sole discretion).” In the event
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Post-Closing Adjustments. As soon as practicable On or before one hundred twenty (120) days after the Closing, but in no event later than one hundred eighty (180) days thereafterClosing Date, Seller with the assistance of Buyer’s staff and with access to such records as necessary, shall prepare and deliver to Purchaser Buyer a final settlement statement (the “Final Settlement Statement”) setting forth (i) each adjustment or payment to the Purchase Price pursuant to Section 2.2 and (ii) the items included in the calculation of the Closing Amount pursuant to Section 2.2c, that was not finally determined as of the Closing Closing, and showing the calculation of each such adjustments amount and the resulting Purchase Price as finally adjusted (the “Final Purchase Price. Seller shall make its workpapers and other information available to Purchaser to review in order to confirm the adjustments shown on Seller’s draftPayment Amount”). As soon as practicable after receipt of the Seller’s proposed Final Settlement Statement, but in no any event later than sixty on or before thirty (6030) days thereafterafter receipt of Seller’s proposed Final Settlement Statement, Purchaser Buyer shall deliver to Seller a written report containing any changes that Purchaser Buyer proposes to make to the Final Settlement Statement. Any Buyer’s failure by Purchaser to deliver to Seller the a written report detailing Purchaser’s proposed changes to the proposed Final Settlement Statement within sixty (60) days following Purchaser’s receipt of the Final Settlement Statement by that date shall be deemed an acceptance by Purchaser Buyer of the Final Settlement Statement as submitted by Seller. The parties shall attempt in good faith to agree with respect to the changes proposed by PurchaserBuyer, if any, no later than sixty fifteen (6015) days after receipt by Seller receives from Purchaser of Buyer’s comments on the written report described above containing Purchaser’s proposed changes. If the Purchaser and the Seller cannot then agree upon the Final Settlement Statement, the determination of the amount of the Final Settlement Statement shall be submitted to a mutually agreed firm of independent public accountants (the “Accounting Firm”). The determination by the Accounting Firm shall be conclusive and binding on the parties hereto and shall be enforceable against any party hereto in any court of competent jurisdiction. Any costs and expenses incurred by the Accounting Firm pursuant to this Section 12.1 shall be borne by the Seller and the Purchaser equally. The date upon which such agreement is reached or upon which the Final Purchase Price Payment Amount is established, established shall be herein called the “Final Settlement Date”. If the Final Payment Amount is more than the Closing Amount, Buyer shall pay Seller the amount of such difference pursuant to Section 2.1. If the Final Payment Amount is less than the Closing Amount, Seller shall pay to Buyer the amount of such difference. Any such payment by Buyer or Seller shall be by wire transfer in immediately available funds within five (5) business days after the Final Settlement Date. Without limiting the foregoing, Seller and Buyer shall account to one another and settle, using the procedures under this Section 6.1, the amount of cash advances made by Buyer to Seller relating to Buyer’s pre-Closing interest in the Leases that have not been paid to third parties for Buyer’s share of unpaid costs and expenses attributable to the Leases, as if such amount were an adjustment to the Purchase Price.” In the event
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Post-Closing Adjustments. As soon as practicable after the Closing(a) Acquiror shall deliver to Seller, but in no event later than one hundred eighty within ninety (18090) days thereafterfollowing the Closing Date, Seller shall prepare and deliver to Purchaser a final settlement statement (the “Final Settlement Statement”) notice setting forth Acquiror’s calculation of each adjustment or payment that was not finally determined as of the Closing Funded Indebtedness and showing Closing Net Working Capital and the calculation Post-Closing Adjustment Amount based thereon (assuming each of the same had been finally determined pursuant to this Section 2.4) (“Post-Closing Adjustment Notice”), together with documentation reasonably necessary to support Acquiror’s calculations thereof and shall give Seller and its Representatives access, during normal business hours and upon reasonable notice, to such of the employees and books and records of the Company and the Subsidiaries as Seller may reasonably request as part of its review of such adjustments and Post-Closing Adjustment Notice. Acquiror may not amend, supplement or otherwise change any aspect of the resulting Final Purchase PricePost-Closing Adjustment Notice after it has been delivered to Seller without Seller’s consent. Seller shall make its workpapers and other information available must deliver written notice to Purchaser to review Acquiror setting forth in order to confirm the adjustments shown on Seller’s draft. As soon as practicable after receipt of the Final Settlement Statement, but in no event later than sixty (60) days thereafter, Purchaser shall deliver to Seller a written report containing reasonable detail any changes that Purchaser proposes to make to the Final Settlement Statement. Any failure by Purchaser to deliver to Seller the written report detailing Purchaser’s proposed changes to the Final Settlement Statement within sixty (60) days following Purchaser’s receipt of the Final Settlement Statement shall be deemed an acceptance by Purchaser of the Final Settlement Statement as submitted by Seller. The parties shall agree objections it has with respect to the changes proposed by Purchaser, if any, Post-Closing Adjustment Notice no later than sixty thirty (6030) days after Seller receives from Purchaser the written report described above containing Purchaser’s proposed changes. If date on which Acquiror delivered the Purchaser and the Seller cannot then agree upon the Final Settlement Statement, the determination of the amount of the Final Settlement Statement shall be submitted to a mutually agreed firm of independent public accountants Post-Closing Adjustment Notice (the “Accounting FirmNotice of Objection”). The determination by If Seller does not so deliver the Accounting Firm Notice of Objection within such thirty (30) day period, the Post-Closing Adjustment Notice shall be become conclusive and binding on the parties hereto for all purposes of this Agreement. If Seller does so deliver the Notice of Objection within such thirty (30) day period, then (i) any aspect of the Post-Closing Adjustment Notice to which there is no objection in the Notice of Objection shall become conclusive and binding on the parties for all purposes of this Agreement and (ii) Acquiror and Seller shall use good faith efforts to resolve all the objections contained in the Notice of Objection (the “Objections”) within thirty (30) days after the date on which the Notice of Objection was delivered to Acquiror; provided, however, that notwithstanding the foregoing, if an Objection is resolved in accordance with this Section 2.4 and GAAP would require any changes to any other components of the Post-Closing Adjustment Notice as a result of such resolution, then such required changes shall be enforceable against any party hereto in any court made to such other components as part of competent jurisdiction. Any costs and expenses incurred by the Accounting Firm pursuant to this Section 12.1 shall be borne by the Seller and the Purchaser equally. The date upon which resolution of such agreement is reached or upon which the Final Purchase Price is established, shall be herein called the “Final Settlement DateObjection.” In the event
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Post-Closing Adjustments. As soon as practicable after The Estimated Closing Balance Sheet shall become final and binding unless Purchaser gives written notice of its disagreement (a "Notice of Disagreement") to the Closing, but in no event later than Shareholders' Agent designated pursuant to Article IX within one hundred eighty twenty (180120) days thereafter, Seller shall prepare and deliver to Purchaser a final settlement statement (the “Final Settlement Statement”) setting forth each adjustment or payment that was not finally determined as of following the Closing and showing Date. The Notice of Disagreement shall specify in reasonable detail the calculation nature of such adjustments and the resulting Final Purchase Priceany disagreement so asserted. Seller The Shareholders Agent shall make have twenty (20) days following its workpapers and other information available to Purchaser to review in order to confirm the adjustments shown on Seller’s draft. As soon as practicable after receipt of the Final Settlement StatementNotice of Disagreement to review the Notice of Disagreement and to give notice of any disagreement therewith (the "Counter-Notice of Disagreement") to Purchaser. If the Shareholders' Agent does not give a Counter-Notice of Disagreement within such period, but the Estimated Closing Balance Sheet shall be adjusted as set forth in no event later than sixty the Notice of Disagreement and, as so adjusted (60) days thereafterthe "Adjusted Balance Sheet"), shall be final and binding upon all parties. If the Shareholders' Agent gives timely Counter-Notice of Disagreement, Purchaser and the Shareholders' Agent shall deliver attempt in good faith to Seller a written report containing any changes that resolve their disagreements. If Purchaser proposes and the Shareholders' Agent are unable to make to the Final Settlement Statement. Any failure by Purchaser to deliver to Seller the written report detailing Purchaser’s proposed changes to the Final Settlement Statement within sixty (60) days following Purchaser’s receipt resolve all of the Final Settlement Statement shall be deemed an acceptance by Purchaser of the Final Settlement Statement as submitted by Seller. The parties shall agree their disagreements with respect to the changes proposed Estimated Closing Balance Sheet within twenty (20) days following delivery of a Counter-Notice of Disagreement, Purchaser shall prepare an audited balance sheet of Company immediately prior to the Closing (the "Audited Closing Balance Sheet"). The Audited Closing Balance Sheet shall be audited by PurchaserKPMG (or, if anyrequested by the Shareholders' Agent, no later than sixty (60) days after Seller receives from Purchaser the written report described above containing Purchaser’s proposed changes. If the Purchaser and the Seller cannot then agree upon the Final Settlement Statement, the determination of the amount of the Final Settlement Statement shall be submitted to a mutually agreed another firm of independent public accountants (mutually acceptable to Purchaser and the “Accounting Firm”Shareholders' Agent). The determination by the Accounting Firm , shall be conclusive prepared in accordance with GAAP in a manner consistent with Company's accounting policies used in the preparation of the Company Balance Sheet, and shall be final and binding on all parties. Any additional Adjustment Shares that would not have been issued to the parties hereto Shareholders at Closing if the Estimated Closing Balance Sheet delivered prior to Closing had been an Adjusted Balance Sheet or an Audited Closing Balance Sheet, or if the Estimated Closing Balance Sheet reflected the resolution of any dispute by the Purchaser and the Shareholders' Agent, as the case may be, may be recovered by Purchaser from the Escrow Fund pro rata. The fees and disbursements of the audit shall be enforceable against any party hereto in any court paid fifty percent (50%) by Purchaser and fifty percent (50%) by Shareholders out of competent jurisdiction. Any costs and expenses incurred by the Accounting Firm pursuant to this Section 12.1 shall be borne by the Seller and the Purchaser equally. The date upon which such agreement is reached or upon which the Final Purchase Price is established, shall be herein called the “Final Settlement DateEscrow Fund pro rata.” In the event
Appears in 1 contract
Samples: Share Purchase Agreement (Ravisent Technologies Inc)
Post-Closing Adjustments. As soon Except for mathematical mistakes in the calculation of any proration or any other mistake of fact or mutual mistake in connection with any Prorated Items, the proration (i) for Property Taxes shall be determined as practicable after provided in Section 11.4 hereof and (ii) for all other Prorated Items other than Property Taxes (the Closing“Remaining Prorated Items”), but shall be adjusted post-Closing in no event later than one hundred eighty (180) days thereafter, Seller accordance with this Section 3.4(b). A final determination of post-Closing adjustments for the Remaining Prorated Items shall prepare be made in good faith by Buyer and deliver to Purchaser shall be set forth in a final settlement statement (the “Final Proration Settlement Statement”) setting forth each adjustment or payment that was not finally determined as of the Closing prepared by Buyer and showing the calculation of such adjustments and the resulting Final Purchase Price. Seller shall make its workpapers and other information available to Purchaser to review in order to confirm the adjustments shown on Seller’s draft. As soon as practicable after receipt of the Final Settlement Statement, but in no event later than sixty (60) days thereafter, Purchaser shall deliver delivered to Seller a written report containing any changes that Purchaser proposes to make to the Final Settlement Statement. Any failure by Purchaser to deliver to Seller the written report detailing Purchaser’s proposed changes to the Final Settlement Statement within sixty (60) days following Purchaser’s receipt of the Final Settlement Statement shall be deemed an acceptance by Purchaser of the Final Settlement Statement as submitted by Seller. The parties shall agree with respect to the changes proposed by Purchaser, if any, no not later than sixty (60) days after Seller receives from Purchaser the written report described above containing Purchaser’s proposed changesClosing. The final accounting for each Remaining Prorated Item shall be determined using the final, actual amount of such Remaining Prorated Item for the period of time prorated, and the Proration Settlement Statement shall (i) contain all information reasonably necessary to support the final accounting and (ii) be certified by an authorized officer of Buyer to be true, correct and complete as of the date thereof. If the Purchaser final, actual amount for any Remaining Prorated Item is not available at the time of the preparation and delivery of the Seller cannot then agree upon the Final Proration Settlement Statement, Buyer shall so advise Seller, and Buyer shall provide a separate Proration Settlement Statement for any such Remaining Prorated Item(s) within a reasonable time after the determination of final, actual amounts become available. The party owing any amounts (the amount of “Payor”) on the Final Proration Settlement Statement shall be submitted pay all such amounts to a mutually agreed firm of independent public accountants the other party (the “Accounting FirmPayee”). The determination by ) within fifteen (15) days after Seller’s receipt of the Accounting Firm shall be conclusive and binding on the parties hereto and shall be enforceable against any party hereto in any court of competent jurisdictionProration Settlement Statement. Any costs and expenses incurred by the Accounting Firm amounts owing pursuant to this Section 12.1 the Proration Settlement Statement and not paid within such fifteen (15) day period shall be borne by bear interest from the Seller and due date until paid at the Purchaser equally. The date upon which such agreement is reached or upon which the Final Purchase Price is established, shall be herein called the “Final Settlement Daterate of ten percent (10%) per annum.” In the event
Appears in 1 contract
Samples: Purchase and Sale Agreement (Buckeye Partners, L.P.)
Post-Closing Adjustments. As soon as practicable after the Closing, but in no event later than On or before one hundred eighty and twenty (180120) days thereafterafter Closing, Seller shall prepare and deliver to Purchaser Buyer a final settlement statement (the “Final Settlement Statement”) setting forth each adjustment or payment that was not finally determined as of to the Closing and showing the calculation of such adjustments and the resulting Final Adjusted Purchase PricePrice in accordance with Section 3 above. Seller shall make its workpapers prepare the Final Settlement Statement in accordance with this Agreement and other information available to Purchaser to review in order to confirm the adjustments shown on Seller’s draftwith GAAP. As soon as practicable On or before fifteen (15) days after receipt of the Final Settlement Statement, Buyer shall have the right, but in no event later than sixty (60) days thereafternot the obligation, Purchaser shall to deliver to Seller a written report containing notice of any changes that Purchaser proposes objections by Buyer to make to any adjustments in the Final Settlement Statement. Any failure by Purchaser Buyer’s notice shall describe in detail any objectionable adjustments and include supporting documentation. If Buyer fails to deliver to Seller written notice of such objections within said time period, the written report detailing Purchaser’s proposed changes to the Final Settlement Statement within sixty (60) days following Purchaser’s receipt of adjustments in the Final Settlement Statement shall be deemed an acceptance by Purchaser of conclusively to be final and binding upon the Parties. If Buyer delivers written objections within said time period, the Final Settlement Statement as submitted by Seller. The parties shall agree be deemed conclusively to be final and binding with respect to the changes proposed by Purchaser, if any, no later all adjustments other than sixty those specifically described in Buyer’s written objections. Buyer and Seller shall use their reasonable efforts in good faith to confer and resolve any objections on or before fifteen (6015) days after Seller receives from Purchaser the written report described above containing PurchaserSeller’s proposed changesreceipt of Buyer’s notice of objections. If Buyer and Seller resolve all objections, the Purchaser adjusted Final Settlement Statement and the Seller canAdjusted Purchase Price shall be deemed conclusively to be final and binding upon the Parties. Any adjustments not then agree upon resolved within said 15-day time period shall be resolved pursuant to this Section 9. In such case, each Party will within ten (10) Business Days from the expiration of the 15-day time period deliver to each other and the arbitrator (who shall be a mutually acceptable independent accounting firm with recognized expertise in the oil and gas business) a notice setting forth in reasonable detail the amount and calculation of the adjustments to the proposed Final Settlement Statement and their proposed Adjusted Purchase Price. Within ten (10) Business Days after receiving such notices, such accounting firm shall choose the Adjusted Purchase Price from one of the notices and will in no way be empowered to choose a different value. With respect to any adjustments in the Final Settlement Statement, the determination of the amount of the Final “Settlement Statement Date” shall be submitted to a mutually agreed firm of independent public accountants (the “Accounting Firm”). The determination by the Accounting Firm shall be conclusive and binding on the parties hereto and shall be enforceable against any party hereto in any court of competent jurisdiction. Any costs and expenses incurred by the Accounting Firm pursuant to this Section 12.1 shall be borne by the Seller and the Purchaser equally. The date upon which such agreement is reached or upon which adjustments are deemed final and binding hereunder. If the Final Adjusted Purchase Price is establishedmore than the Preliminary Amount, Buyer shall pay Seller the amount of such difference. If the Adjusted Purchase Price is less than the Preliminary Amount, Seller shall pay to Buyer the amount of such difference. Any such payment by Buyer or Seller hereunder shall be herein called paid by wire transfer in immediately available funds on or before five (5) days after the “Final Settlement Date.” In the event
Appears in 1 contract
Samples: Purchase and Sale Agreement (Abraxas Petroleum Corp)
Post-Closing Adjustments. As soon as practicable after the Closing, but in no event later than one hundred eighty Within forty five (18045) days thereafter, following the Effective Date Seller shall prepare and deliver to Purchaser a final settlement statement deposit with the Escrow Agent the sum of $300,000.00 (the “Final Settlement Statement”"Escrow Amount") setting forth each adjustment or payment that was not finally determined as to be held in an interest-bearing, escrow account subject to the terms of the Closing Escrow Agreement dated the Effective Date among Seller, Purchaser and showing Escrow Agent. A copy of the calculation of such adjustments Escrow Agreement is attached hereto as Exhibit C and incorporated by this reference herein (the resulting Final Purchase Price"Escrow Agreement"). Seller Seller's obligation to deposit the Escrow Amount shall make its workpapers be secured by a security interest in Seller's accounts receivable granted pursuant to a security agreement in the form attached hereto as Exhibit D and other information available to Purchaser to review in order to confirm the adjustments shown on Seller’s draftincorporated herein by reference. As soon as practicable after receipt following the Effective Date, Purchaser, at Purchaser's expense, shall have the condition of all rolling stock included in the Purchased Assets inspected by an independent inspector (the "Inspections") to (i) determine whether all units meet the Department of Transportation ("DOT") vehicle inspection requirements and (ii) to determine whether any units have damage (excluding normal wear and tear) in excess of $500.00 for tractor units and $250.00 for trailer units ("Excess Damage"). For all tractors included in the rolling stock, the Inspections shall be performed by the earlier of (x) the third dispatch of the Final Settlement Statementtractor immediately following the Effective Date or (y) the thirtieth (30th) day following the Effective Date. Each tractor Inspection shall be performed by a certified Freightliner dealership located near the Purchaser's turn-in locations for such tractor. For all trailers included in the rolling stock, the Inspections shall be performed by the earlier of (1) the third dispatch of the trailer immediately following the Effective Date or (2) the sixtieth (60th) day following the Effective Date. Each trailer Inspection shall be performed by a certified GE Equipment Services facility located near the Purchaser's turn-in locations for such trailer. Immediately upon completion of the Inspections, but in no any event later than sixty (60) days thereafter, Purchaser shall deliver to Seller a written report containing any changes that Purchaser proposes to make to the Final Settlement Statement. Any failure by Purchaser to deliver to Seller the written report detailing Purchaser’s proposed changes to the Final Settlement Statement within sixty (60) days following Purchaser’s receipt of the Final Settlement Statement Effective Date, Purchaser shall be deemed an acceptance by Purchaser of the Final Settlement Statement as submitted by Seller. The parties shall agree with respect submit to the changes proposed by Purchaser, if any, no later than sixty (60) days after Seller receives from Purchaser the a written report described above containing Purchaser’s proposed changes. If the Purchaser and the Seller cannot then agree upon the Final Settlement Statement, the determination of the amount of the Final Settlement Statement shall be submitted to a mutually agreed firm of independent public accountants (the “Accounting Firm”"Inspection Report") regarding the condition on the Effective Date of each item of rolling stock included in the Purchased Assets that failed to meet the DOT vehicle inspection requirements and/or had Excess Damage (the "Nonconforming Items"). The determination by Inspection Report shall include the Accounting Firm shall be conclusive and binding on following information as of the parties hereto and shall be enforceable against any party hereto in any court Effective Date for each of competent jurisdiction. Any costs and expenses incurred by the Accounting Firm pursuant to this Section 12.1 shall be borne by the Seller and the Purchaser equally. The date upon which such agreement is reached or upon which the Final Purchase Price is established, shall be herein called the “Final Settlement Date.” In the eventNonconforming Items:
Appears in 1 contract
Post-Closing Adjustments. As soon as practicable Within sixty (60) days after the ClosingClosing Date, but in no event later than one hundred eighty (180) days thereafter, Seller Buyer shall prepare and deliver to Purchaser Seller, in accordance with generally accepted accounting principles, a final settlement statement (the “Mayell Final Settlement Statement”) setting forth each adjustment or payment that was not finally determined as of by the Closing Estimated Mayell Adjustment and showing the calculation of such adjustments together with a copy of all data used in arriving at such calculations (the “Mayell Post-Closing Adjustment(s)”) and the resulting final purchase price (the “Mayell Final Purchase Price. Seller shall make its workpapers and other information available to Purchaser to review in order to confirm the adjustments shown on Seller’s draft”). As soon as practicable after receipt of the Mayell Final Settlement Statement, but in no event later than sixty (60) days thereafter, Purchaser Seller shall deliver to Seller Buyer a written report containing any changes that Purchaser Seller proposes to make be made to the preliminary Mayell Final Settlement Statement. Any failure by Purchaser The Parties undertake to deliver to Seller the written report detailing Purchaser’s proposed changes to the Final Settlement Statement within sixty (60) days following Purchaser’s receipt of the Final Settlement Statement shall be deemed an acceptance by Purchaser of the Final Settlement Statement as submitted by Seller. The parties shall agree with respect to the changes proposed by Purchaser, if any, amount due pursuant to such Mayell Post-Closing Adjustments no later than sixty ninety (6090) days after Seller receives from Purchaser the written report described above containing Purchaser’s proposed changes. If the Purchaser and the Seller cannot then agree upon the Final Settlement Statement, the determination of the amount of the Final Settlement Statement shall be submitted to a mutually agreed firm of independent public accountants (the “Accounting Firm”). The determination by the Accounting Firm shall be conclusive and binding on the parties hereto and shall be enforceable against any party hereto in any court of competent jurisdiction. Any costs and expenses incurred by the Accounting Firm pursuant to this Section 12.1 shall be borne by the Seller and the Purchaser equallyClosing Date. The date upon which such agreement is reached or reached, and upon which the Mayell Final Purchase Price is established, shall be herein called the “Mayell Final Settlement Date.” ”. In the eventevent that (a) the Mayell Final Purchase Price is more than the Mayell Net Closing Amount paid by the Buyer on the Closing Date, Buyer shall pay to Seller the balance of such difference by wire transfer of immediately available funds, or (b) the Mayell Final Purchase Price is less than the Mayell Net Closing Amount paid by the Buyer on the Closing Date, Seller shall pay to Buyer the balance of such difference by wire transfer of immediately available funds. If the Parties cannot agree upon the Mayell Post-Closing Adjustments, the Parties agree that the dispute shall be submitted to a mutually selected third-party accountant, who shall decide all points of disagreement with respect to the Mayell Post-Closing Adjustments. The decision of said third party accountant on all such points shall be binding upon the Parties. The cost and expenses of said third party accountant shall be borne equally by the Parties.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Alta Mesa Holdings, LP)
Post-Closing Adjustments. As soon as practicable Within sixty (60) days after the ClosingClosing Date, but in no event later than one hundred eighty (180) days thereafter, Seller Buyer shall prepare and deliver to Purchaser Seller, in accordance with generally accepted accounting principles, a final settlement statement (the “Sydson Final Settlement Statement”) setting forth each adjustment or payment that was not finally determined as of by the Closing Estimated Sydson Adjustment and showing the calculation of such adjustments together with a copy of all data used in arriving at such calculations (the “Sydson Post-Closing Adjustment(s)”) and the resulting final purchase price (the “Sydson Final Purchase Price. Seller shall make its workpapers and other information available to Purchaser to review in order to confirm the adjustments shown on Seller’s draft”). As soon as practicable after receipt of the Sydson Final Settlement Statement, but in no event later than sixty (60) days thereafter, Purchaser Seller shall deliver to Seller Buyer a written report containing any changes that Purchaser Seller proposes to make be made to the preliminary Sydson Final Settlement Statement. Any failure by Purchaser The Parties undertake to deliver to Seller the written report detailing Purchaser’s proposed changes to the Final Settlement Statement within sixty (60) days following Purchaser’s receipt of the Final Settlement Statement shall be deemed an acceptance by Purchaser of the Final Settlement Statement as submitted by Seller. The parties shall agree with respect to the changes proposed by Purchaser, if any, amount due pursuant to such Sydson Post-Closing Adjustments no later than sixty ninety (6090) days after Seller receives from Purchaser the written report described above containing Purchaser’s proposed changes. If the Purchaser and the Seller cannot then agree upon the Final Settlement Statement, the determination of the amount of the Final Settlement Statement shall be submitted to a mutually agreed firm of independent public accountants (the “Accounting Firm”). The determination by the Accounting Firm shall be conclusive and binding on the parties hereto and shall be enforceable against any party hereto in any court of competent jurisdiction. Any costs and expenses incurred by the Accounting Firm pursuant to this Section 12.1 shall be borne by the Seller and the Purchaser equallyClosing Date. The date upon which such agreement is reached or reached, and upon which the Sydson Final Purchase Price is established, shall be herein called the “Sydson Final Settlement Date”. In the event that (a) the Sydson Final Purchase Price is more than the Sydson Net Closing Amount paid by the Buyer on the Closing Date, Buyer shall pay to Seller the balance of such difference by wire transfer of immediately available funds, or (b) the Sydson Final Purchase Price is less than the Sydson Net Closing Amount paid by the Buyer on the Closing Date, Seller shall pay to Buyer the balance of such difference by wire transfer of immediately available funds. The Parties agree as follows regarding the accounting for the Sydson Post-Closing Adjustment calculations: (a) that the Xxxxxxxx and Xxxx Leases shall be included in the Sydson Post-Closing Adjustment calculations to determine the costs and revenues attributable to Sydson’s interest in the properties; provided, however, the fractional working interests of Seller for purposes of such calculations in respect of the Xxxxxxxx Lease will be 2% of 8/8ths and in respect of the Crow Lease will be 0.44% of 8/8ths, and (b) the costs of any lease acquisition, renewal, extension or top leases (“Lease Costs”) shall be included in the Sydson Post-Closing Adjustment calculations to the extent, and only to the extent that prior to the Closing Date (i) Seller received an election notice for such Lease Costs from Buyer pursuant to Buyer’s receipt of a proposal for a unit and corresponding initial well from Xxxxxx Exploration & Production Company—USA (“Xxxxxx”), (ii) Seller has approved and elected to incur the Lease Costs and (iii) Seller has received an assignment of the subject leases, renewals, extensions or top leases all in accordance with the provisions of that certain letter from F. Xxxxx Xxxxxxx to Xxxxxxx Xxxxxx dated November 12, 2010 Captioned “Re: Revised Noticed date October 19, 2010 covering Additional Oil and Gas Interests, Xxxxxx County, Texas.” In If the eventParties cannot agree upon the Sydson Post-Closing Adjustments, the Parties agree that the dispute shall be submitted to a mutually selected third-party accountant, who shall decide all points of disagreement with respect to the Sydson Post-Closing Adjustments. The decision of said third party accountant on all such points shall be binding upon the Parties. The cost and expenses of said third party accountant shall be borne equally by the Parties.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Alta Mesa Holdings, LP)
Post-Closing Adjustments. As soon as practicable 3.01 Within ninety (90) days after the ClosingClosing (the "Post Closing Date"), but in no event later than one hundred eighty (180) days thereafter, Seller shall prepare and the Sellers will deliver to Purchaser a final settlement statement copy of the audited Closing Balance Sheet prepared by Seller's accountant along with any supporting documentation reasonably requested by Purchaser reflecting Company's calculation of Book Value and the determination of any deficit in Book Value in accordance with Section 2.02(a) (the “Final Settlement Statement”) setting forth each adjustment or payment that was not finally determined as "Book Value Report"). The cost of the Closing and showing the calculation preparation of such adjustments audited Closing Balance Sheet shall be borne one-half (1/2) by Sellers and one-half (1/2) by Purchaser. Provided, however, Purchaser's obligation hereunder shall not exceed the resulting Final Purchase Pricesum of Ten Thousand Dollars ($10,000.00). Seller shall make its workpapers and other information available Within fifteen (15) days following delivery to Purchaser to review in order to confirm the adjustments shown on Seller’s draft. As soon as practicable after receipt of the Final Settlement Statement, but in no event later than sixty (60) days thereafterBook Value Report, Purchaser shall deliver have the right to Seller a written report containing any changes that Purchaser proposes to make object in writing to the Final Settlement Statementresults contained therein. Any failure If timely objection is not made by Purchaser to deliver to Seller the written report detailing Purchaser’s proposed changes Book Value Report, the Book Value Report shall become final and binding for purposes of this Agreement. If timely objection is made by Purchaser to the Final Settlement Statement Book Value Report, and Sellers and Purchaser are able to resolve their differences in writing within sixty five (605) days following Purchaser’s receipt the expiration of such fifteen (15) day period, then the Final Settlement Statement Book Value Report as resolved shall be deemed an acceptance become final and binding as it relates to this Agreement. If timely objection is made by Purchaser of the Final Settlement Statement as submitted by Seller. The parties shall agree with respect to the changes proposed by PurchaserBook Value Report, if anyand Sellers and Purchasers are unable to resolve their differences in writing within such period, no later than sixty (60) days after Seller receives from Purchaser then all disputed matters pertaining to the written report described above containing Purchaser’s proposed changes. If the Purchaser and the Seller cannot then agree upon the Final Settlement Statement, the determination of the amount of the Final Settlement Statement Book Value Report shall be submitted to a mutually agreed firm and reviewed by an Arbitrator according to the process and procedure set forth in Section 2.03 above. Expenses of independent public accountants (the “Accounting Firm”). The determination by the Accounting Firm Arbitration shall be conclusive borne one-half (1/2) by Purchaser and binding on one-half (1/2) by Sellers. Each party shall be responsible for its own attorneys and accounting fees. Any net reduction in the parties hereto Purchase Price as a result of said adjustment shall be made in the manner set forth in Section 2.02(b) and shall be enforceable against any party hereto reflected by decreasing the face amount of the Notes set forth in any court Section 2.04(c) in proportion to Sellers' ownership of competent jurisdiction. Any costs and expenses incurred by the Accounting Firm pursuant to this Section 12.1 shall be borne by the Seller and the Purchaser equallyCompany Shares. The parties agree to implement any adjustments to any interest payment that may have been made prior to the date upon which of such agreement is reached or upon which determination to reflect the Final Purchase Price is established, shall be herein called the “Final Settlement Dateadjustments set forth above.” In the event
Appears in 1 contract
Samples: Stock Purchase Agreement (Pomeroy Computer Resources Inc)
Post-Closing Adjustments. As soon as practicable Within 90 days after the Closing, but in no event later than one hundred eighty (180) days thereafter, Seller TXU shall prepare and deliver to Purchaser Buyer, in accordance with this Agreement and generally accepted accounting principles, a final settlement statement (herein called the “Final Settlement Statement”) ), setting forth each adjustment or payment that of the type described in Sections 2.10 and 2.11 which was not finally determined as of taken into account in determining the Purchase Price at Closing and showing the calculation of such adjustments and the resulting Final Purchase Priceadjustments. Seller shall make its workpapers and other information available to Purchaser to review in order to confirm the adjustments shown on Seller’s draft. As soon as practicable Within 30 days after receipt of the Final Settlement Statement, but in no event later than sixty (60) days thereafter, Purchaser Buyer shall deliver to Seller TXU a written report containing any changes that Purchaser Buyer proposes to make be made to the Final Settlement Statement. Any failure by Purchaser The Parties shall undertake to deliver to Seller the written report detailing Purchaser’s proposed changes agree to the Final Settlement Statement within sixty (60) amounts due pursuant to such adjustments no later than 90 days following Purchaserafter Buyer’s receipt of the Final Settlement Statement shall be deemed an acceptance by Purchaser of the Final Settlement Statement as submitted by Seller. The parties shall agree with respect to the changes proposed by PurchaserStatement, if any, no later than sixty (60) days after Seller receives from Purchaser the written report described above containing Purchaser’s proposed changes. If the Purchaser and the Seller cannot then agree upon the Final Settlement Statement, the determination of the amount of the Final Settlement Statement shall be submitted to a mutually agreed firm of independent public accountants (the “Accounting Firm”). The determination by the Accounting Firm shall be conclusive and binding on the parties hereto and shall be enforceable against any party hereto in any court of competent jurisdiction. Any costs and expenses incurred by the Accounting Firm pursuant to this Section 12.1 shall be borne by the Seller and the Purchaser equally. The date upon which such agreement is reached or upon which the Final Purchase Price is established, shall be herein called the “Final Settlement Date.” In Buyer or TXU (as applicable) will promptly pay amounts due in accordance with the eventFinal Settlement Statement. If TXU and Buyer are unable to agree upon the Final Settlement Statement within 90 days after Buyer’s receipt of same, the Parties will retain a nationally recognized independent public accounting firm agreed upon by Buyer and TXU to audit the Final Settlement Statement and determine any amounts due thereunder. The decision of the independent accounting firm that conducts the audit will be binding on Buyer and TXU, and the fees and expenses of the independent accounting firm will be borne one-half each by Buyer and TXU. The Parties will, and will cause their representatives to, cooperate and assist in the preparation of the Final Settlement Statement and the conduct of the reviews and audits referred to in this Section 2.13, including (without limitation) making available books, records and personnel as required.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Energy Transfer Partners Lp)
Post-Closing Adjustments. As soon as practicable after the Closing, but in no event not later than one hundred eighty ninety (18090) days thereafterafter the Closing Date, Seller shall prepare and deliver to Purchaser Buyer, in accordance with this Agreement and generally recognized industry accounting practices, a final settlement statement (the “Final Settlement Statement”) setting forth each adjustment or payment to Purchase Price that was not finally determined as of the Closing and showing the calculation of such adjustments and the resulting Final Purchase Price. Seller shall make its workpapers and other information available to Purchaser to review in order to confirm the adjustments shown on Seller’s draftadjustments. As soon as practicable after receipt of the such Final Settlement StatementStatement from Seller, but in and no event later than sixty thirty (6030) days thereafter, Purchaser Buyer shall deliver to Seller a written report containing any changes that Purchaser Buyer proposes to make to the Final Settlement Statement. Any failure by Purchaser to deliver to Seller the written report detailing Purchaser’s proposed changes be made to the Final Settlement Statement within sixty (60) days following Purchaser’s receipt of the Final Settlement Statement shall be deemed an acceptance by Purchaser of the Final Settlement Statement as submitted proposed by Seller. The parties shall undertake to agree with respect to the changes proposed by Purchaser, if any, no amounts due pursuant to such Final Settlement Statement not later than sixty one hundred fifty (60150) days after the Closing Date. The final agreed price paid by Buyer to Seller receives from Purchaser for the written report described above containing Purchaser’s proposed changes. If the Purchaser and the Seller cannot then agree upon the Final Settlement Statement, the determination of the amount of the Final Settlement Statement shall be submitted Assets after all adjustments is hereinafter referred to a mutually agreed firm of independent public accountants (as the “Accounting Firm”). The determination by the Accounting Firm shall be conclusive and binding on the parties hereto and shall be enforceable against any party hereto in any court of competent jurisdiction. Any costs and expenses incurred by the Accounting Firm pursuant to this Section 12.1 shall be borne by the Seller and the Purchaser equally. Final Purchase Price.” The date upon which such agreement is reached or upon which the Final Purchase Price is established, shall be herein called the “Final Settlement Date.” In If the eventBuyer and Seller are unable to agree upon a Final Purchase Price within one hundred fifty (150) days from the Closing Date, Seller shall select an independent accounting firm with expertise in oil and gas accounting from a list of three (3) such reputable firms provided by Buyer, which firm shall audit the disputed items on the Final Settlement Statement and determine the Final Purchase Price. The decision of such independent accounting firm shall be binding on Buyer and Seller, and the fees and expenses of such independent accounting firm shall be borne one-half ( 1/2) by each of Buyer and Seller.
Appears in 1 contract
Post-Closing Adjustments. As soon Within 90 days after the Effective Date, Buyer shall prepare a statement as practicable after of the Effective Date (the “Closing Statement”) containing Buyer’s determination of Prepaid Revenues (calculated as of the close of business on the Effective Date and in accordance with GAAP), Indebtedness outstanding as of immediately prior to the Closing, but and Seller Prepaid Expenses (calculated as of the close of business on the Effective Date and in no event accordance with GAAP), and Buyer’s calculation of the Adjustment Amount. Seller will have 30 days after it receives the Closing Statement (the “Review Period”) to notify Buyer in writing whether it agrees with the Closing Statement. If Seller notifies Buyer that it agrees with, or if Seller does not respond to, the Closing Statement within the Review Period, then the Closing Statement will be deemed agreed and will be conclusive, final and binding on the Parties. If Seller notifies Buyer in writing within the Review Period that it does not agree with the Closing Statement, which notice must include the amount of and basis for the disagreement and supporting documentation (the “Dispute Notice”), then Seller and Buyer shall negotiate in good faith to resolve the disagreement, and any matters in the Dispute Notice that are resolved in writing by Seller and Buyer will be conclusive, final and binding on the Parties. Any portion of the Closing Statement that is not disputed in the Dispute Notice will be deemed agreed and will be conclusive, final and binding on the Parties. If Seller and Buyer do not resolve all of the matters in the Dispute Notice within 30 days (or such longer period as they agree) then they shall submit the remaining unresolved matters (the “Open Matters”) to a nationally recognized independent accounting firm that they mutually select (the “Independent Accountant”) for resolution. If Open Matters are submitted to the Independent Accountant, (i) Seller and Buyer shall provide to the Independent Accountant such documents and information relating to the Open Matters as the Independent Accountant reasonably requests and will have the opportunity to present the Open Matters to the Independent Accountant (and copies of any materials provided by any Party to the Independent Accountant shall be delivered concurrently to the other Party); (ii) the Independent Accountant shall consider only the Open Matters, shall base its determination solely on the materials submitted by Seller and Buyer and this Section 3(c) and related definitions (and not on an independent review) and may not assign a value to any item greater than the greatest value or less than the smallest value claimed by the Parties in the Closing Statement or the Dispute Notice; (iii) Seller and Buyer shall instruct the Independent Accountant to provide a written determination of the Open Matters within 60 days of their submission, and such determination will be conclusive, final and binding on the Parties (except in the case of manifest error or fraud); (iv) Seller and Buyer shall each pay 50% of the fees and costs of the Independent Accountant; and (v) the Independent Accountant shall act as an expert, not as an arbitrator, in determining the Open Matters. No later than one hundred eighty (1805 business days following the final agreement or determination of the Adjustment Amount pursuant to this Section 3(c) days thereafter, Seller shall prepare and deliver to Purchaser a final settlement statement (the “Final Settlement StatementAdjustment Amount”), the following payments shall be made: (A) setting forth each adjustment if the Final Closing Payment is less than the Estimated Closing Payment, Seller shall pay to Buyer cash in an amount equal to the difference between the Estimated Closing Payment and the Final Closing Payment (provided that Buyer has the option to instead retain all or payment that was not finally determined as of the Closing and showing the calculation any portion of such adjustments amount from the Holdback Amount); and (B) if the Final Closing Payment is greater than the Estimated Closing Payment, Buyer shall pay to Seller cash in an amount equal to the difference between the Final Closing Payment and the resulting Final Purchase Price. Seller shall make its workpapers and other information available to Purchaser to review in order to confirm the adjustments shown on Seller’s draft. As soon as practicable after receipt of the Final Settlement Statement, but in no event later than sixty (60) days thereafter, Purchaser shall deliver to Seller a written report containing any changes that Purchaser proposes to make to the Final Settlement StatementEstimated Closing Payment. Any failure by Purchaser to deliver to Seller the written report detailing Purchaser’s proposed changes to the Final Settlement Statement within sixty (60) days following Purchaser’s receipt of the Final Settlement Statement shall be deemed an acceptance by Purchaser of the Final Settlement Statement as submitted by Seller. The parties shall agree with respect to the changes proposed by Purchaser, if any, no later than sixty (60) days after Seller receives from Purchaser the written report described above containing Purchaser’s proposed changes. If the Purchaser and the Seller cannot then agree upon the Final Settlement Statement, the determination of the amount of the Final Settlement Statement shall be submitted to a mutually agreed firm of independent public accountants (the “Accounting Firm”). The determination by the Accounting Firm shall be conclusive and binding on the parties hereto and shall be enforceable against any party hereto in any court of competent jurisdiction. Any costs and expenses incurred by the Accounting Firm paid pursuant to this Section 12.1 shall 3(c) will be borne by treated as an adjustment to the Seller and the Purchaser equally. The date upon which such agreement is reached or upon which the Final Purchase Price is established, shall be herein called the “Final Settlement Datepurchase price for tax reporting purposes.” In the event
Appears in 1 contract
Post-Closing Adjustments. As soon as practicable Within 120 days after the Closing, but in no event later than one hundred eighty (180) days thereafter, Seller shall prepare and deliver to Purchaser a final settlement statement (the “Final Settlement Statement”) setting forth each adjustment or payment that was not finally determined as of the Closing and showing the calculation of such adjustments and the resulting Final Purchase Price. Seller shall make its workpapers and other information available to Purchaser to review in order to confirm the adjustments shown on Seller’s draft. As soon as practicable after receipt of the Final Settlement Statement, but in no event later than sixty (60) days thereafterDate, Purchaser shall deliver to Seller a written report containing certificate (the "Closing Certificate") signed by the President or Chief Financial Officer of Purchaser providing a compilation of the Adjustments to be made pursuant to this Section 2.03, including any changes in the Adjustments used to determine the Purchase Price at Closing, together with a statement of any additional amount owing to either party (the "Adjustment Amount"), a copy of any supporting documents, work papers, Subscriber records and other data relating to such Closing Certificate and such other supporting evidence as Seller may reasonably request either prior to or after delivery thereof. If Seller shall conclude that Purchaser proposes the Closing Certificate does not accurately reflect the Adjustments to make be made to the Final Settlement Statement. Any failure by Purchaser to deliver to Base Price in accordance with this Section 2.03 and the Adjustment Amount, Seller the written report detailing Purchaser’s proposed changes to the Final Settlement Statement shall, within sixty (60) 30 days following Purchaser’s after receipt of the Final Settlement Statement Closing Certificate (such 30 day period being referred to as the "Response Period"), deliver to Purchaser a written statement of any discrepancies believed to exist. If Seller fails to so notify Purchaser of any discrepancies, then the calculation of the Purchase Price set forth in Purchaser's Closing Certificate shall be deemed an acceptance by Purchaser controlling for all purposes hereof and, on or before the fifth (5th) day following the expiration of the Final Settlement Statement Response Period, (i) if the Purchaser is obligated to pay Seller the Adjustment Amount, then Purchaser shall pay Seller the Adjustment Amount, or (ii) if Seller is obligated to pay Purchaser the Adjustment Amount, then Seller shall pay Purchaser the Adjustment Amount. On or before the fifth (5th) day following the earlier to occur of the expiration of the Response Period and the date Purchaser receives Seller's statement of discrepancies, Purchaser or Seller, as submitted by Seller. The parties the case may be, shall agree with respect to pay the changes proposed by Purchaserportion of the Adjustment Amount, if any, as to which there is no later than sixty discrepancy (60the "Agreed Adjustment Amount"). Purchaser and Seller shall use good faith efforts to jointly resolve their discrepancies within fifteen (15) days after of Purchaser's receipt of Seller's written statement of discrepancies, which resolution, if achieved, shall be binding upon Seller receives from Purchaser the written report described above containing Purchaser’s proposed changes. If the and Purchaser and not subject to further dispute or review. In the event Purchaser and Seller cannot are unable to resolve their differences within such fifteen (15) day period, then agree upon either party may request that the Final Settlement Statementmatter be resolved by Price Waterhouse (the "Independent Accountants"). In submitting a dispute to the Independent Accountants, each of the parties shall furnish, at its own expense, the determination Independent Accountants and the other party with such documents and information as the Independent Accountants may reasonably request. Each party may also furnish to the Independent Accountants such other information and documents as it deems relevant with the appropriate copies and notification being given to the other party. The Independent Accountants may conduct a conference concerning the disagreements between Seller and Purchaser at which conference each party shall have the right to present additional documents, material and other evidence and to have present its advisors, accountants and counsel. The Independent Accountants shall promptly render a decision on the issues presented and shall provide Purchaser and Seller with a statement of the amount of owing (the "Final Settlement Statement Adjustment Amount"), and such decision shall be submitted to a mutually agreed firm of independent public accountants (the “Accounting Firm”). The determination by the Accounting Firm shall be conclusive final and binding on the parties hereto parties. The fees and expenses of the Independent Accountants shall be divided equally between Purchaser and Seller. Notwithstanding the foregoing, to the extent that such fees and expenses of the Independent Accountants are attributable to resolving a disagreement of the same issue arising out of both this Agreement and the Cellular 2000 Agreement, then such fees and expenses shall be allocated 50% to Purchaser, 12.491% to Seller, and 37.509% to the Cellular 2000 Shareholders. Within five (5) days of receipt of the Independent Accountants' decision with respect to such dispute, (i) if Purchaser is determined to owe the Final Adjustment Amount to Seller, then Purchaser shall pay Seller the Final Adjustment Amount; or (ii) if Seller is determined to owe the Final Adjustment Amount to Purchaser, then Seller shall pay the Final Adjustment Amount to Purchaser. All amounts owed by Purchaser or Seller to the other in accordance with this Section 2.03(h) shall be paid by wire transfer of immediately available funds and shall be enforceable against not bear any party hereto in any court of competent jurisdiction. Any costs and expenses incurred by the Accounting Firm pursuant to this Section 12.1 shall be borne by the Seller and the Purchaser equally. The date upon which such agreement is reached or upon which the Final Purchase Price is established, shall be herein called the “Final Settlement Dateinterest.” In the event
Appears in 1 contract
Samples: Stock Purchase Agreement (Dobson Communications Corp)
Post-Closing Adjustments. As soon as practicable On or before 120 days after the Closing, but in no event later than one hundred eighty (180) days thereafterSellers with the assistance of Buyer’s staff and with access to such records as necessary, Seller shall prepare and deliver to Purchaser Buyer a final settlement statement (the “Final Settlement Statement”) setting forth each adjustment or payment that was not finally determined as of the Closing and showing the calculation of such adjustment, any adjustments previously settled between the Parties, and the resulting Purchase Price as finally adjusted (the “Final Purchase Price”). Seller The Final Settlement Statement shall make its workpapers be adjusted to reflect any Title Defects cured pursuant to Section 5.5, any adjustments for Required Consents that have been obtained under Section 5.8, the outcome of any judicial determination under Section 5.6 that is completed prior to the Final Settlement Date for which the Parties have not settled payment, and other information available any unpaid Taxes that are apportioned to Purchaser periods prior to review in order the Effective Time pursuant to confirm the adjustments shown on Seller’s draftSection 14.1. As soon as practicable after receipt of the Sellers’ proposed Final Settlement Statement, but in no any event later than sixty (60) on or before 15 days thereafterafter receipt of Sellers’ proposed Final Settlement Statement, Purchaser Buyer shall deliver to Seller Sellers a written report containing any changes that Purchaser Buyer proposes to make to the Final Settlement Statement. Any Buyer’s failure by Purchaser to deliver to Seller the Sellers a written report detailing Purchaser’s proposed changes to the proposed Final Settlement Statement within sixty (60) days following Purchaser’s receipt of the Final Settlement Statement by that date shall be deemed an acceptance by Purchaser Buyer of the Final Settlement Statement as submitted by SellerSellers. The parties Parties shall attempt in good faith to agree with respect to the changes proposed by PurchaserBuyer, if any, no later than sixty (60) 15 days after Seller receives from Purchaser receipt by Sellers of Buyer’s comments on the written report described above containing Purchaser’s proposed changes. If the Purchaser and the Seller cannot then agree upon the Final Settlement Statement, the determination of the amount of the Final Settlement Statement shall be submitted to a mutually agreed firm of independent public accountants (the “Accounting Firm”). The determination by the Accounting Firm shall be conclusive and binding on the parties hereto and shall be enforceable against any party hereto in any court of competent jurisdiction. Any costs and expenses incurred by the Accounting Firm pursuant to this Section 12.1 shall be borne by the Seller and the Purchaser equally. The date upon which such agreement is reached or upon which the Final Purchase Price is established, established pursuant to Section 13.2 shall be herein called the “Final Settlement Date.” In If the eventFinal Purchase Price is more than the Closing Amount plus the Deposit, Buyer shall pay Sellers the amount of such difference pursuant to Section 3.1. If the Final Purchase Price is less than the Closing Amount plus the Deposit, Sellers shall pay to Buyer the amount of such difference. Any such payment by Buyer or Sellers shall be by wire transfer in immediately available funds within five Business Days after the Final Settlement Date.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Synergy Resources Corp)
Post-Closing Adjustments. As soon as practicable (a) On or prior to the fifth business day after the Closing, but in no event later than one hundred eighty (180) days thereafterEscrow Release Date, Seller shall prepare make a final determination of the amounts payable by Buyer under the Power Purchase Agreement in accordance with the second sentence of Section 1.4(b) for the period between the Closing Date and the Escrow Release Date and shall deliver to Purchaser Buyer a final settlement statement (the “Final Settlement Statement”) certificate setting forth each adjustment or payment that was not finally determined as of the Closing such amounts and showing the calculation all calculations in reasonable detail necessary to support such amounts. Within two business days following delivery of such adjustments and certificate, Buyer shall pay Seller in cash in immediately available funds the resulting Final Purchase Priceamount set forth in such certificate. (b) If Buyer has not delivered its written undertaking pursuant to Section 1.8 below, then on the forty-fifth day following the Escrow Release Date (or the first business day thereafter if such forty-fifth day is not a business day) or such later date as Seller shall determine if the effect of such delay is to reduce the amounts which may be payable by Buyer as hereinafter determined, Seller shall make its workpapers and other information available to Purchaser to review in order to confirm the adjustments shown on Seller’s draft. As soon as practicable after receipt a final determination of the Final Settlement Statement, but in no event later than sixty (60amounts payable by Buyer pursuant to Section 1.4(a)(i)(y) days thereafter, Purchaser above and shall deliver to Buyer a certificate setting forth such amounts and all calculations and documentation in reasonable detail necessary to support such amounts. Within two business days following delivery of such certificate, Seller a shall pay Buyer in cash in immediately available funds (or Buyer shall pay Seller, as applicable) the difference between the aggregate amount set forth in such certificate and the aggregate amount paid by Buyer to Seller on the Closing Date pursuant to Section 1.4(a)(i)(y). (c) If Buyer has delivered its written report containing any changes that Purchaser proposes undertaking pursuant to make Section 1.8 below, during the period for disposal to be specified in the undertaking referred to in Section 1.8 below, Seller shall cooperate with Buyer to permit Buyer reasonable access to the Final Settlement Statement. Any failure by Purchaser to deliver to Seller the written report detailing Purchaser’s proposed changes Facility, and, to the Final Settlement Statement within sixty (60) days following Purchaser’s receipt extent available as reasonably determined by Seller, the assistance of Facility personnel in order for Buyer to conduct the disposal of the Final Settlement Statement shall be deemed an acceptance by Purchaser fuel in accordance with such undertaking. (d) On the six-month anniversary of the Final Settlement Statement as submitted by Seller. The parties Escrow Release Date (or the first business day thereafter if such six-month anniversary is not a business day), Seller shall agree with respect to the changes proposed by Purchaser, if any, no later than sixty (60) days after Seller receives from Purchaser the written report described above containing Purchaser’s proposed changes. If the Purchaser and the Seller cannot then agree upon the Final Settlement Statement, the make a final determination of the amount payable by Buyer pursuant to Section 1.4(a)(v) above and shall deliver to Buyer a certificate setting forth such amount and all calculations and documentation in reasonable detail necessary to support them. Within two business days following delivery of such certificate, Seller shall pay Buyer in cash in immediately available funds (or Buyer shall pay Seller, as applicable) the difference between the amount set forth in such certificate and the amount paid by Buyer to Seller on the Closing Date pursuant to Section 1.4(a)(v), provided that the payments by Buyer pursuant to such Section 1.4(a)(v) and this Section 1.7(d), together with the payments by Buyer pursuant to Section 1.4(a)(v) and Section 1.7(d) of the Final Settlement Statement shall be submitted to a mutually agreed firm of independent public accountants (the “Accounting Firm”). The determination by the Accounting Firm shall be conclusive and binding on the parties hereto and shall be enforceable against any party hereto in any court of competent jurisdiction. Any costs and expenses incurred by the Accounting Firm pursuant to this Section 12.1 shall be borne by the Seller and the Purchaser equally. The date upon which such agreement is reached or upon which the Final West Enfield Purchase Price is establishedAgreement, shall be herein called in no event exceed $265,000 in the “Final Settlement Date.” In the eventaggregate. 1.8
Appears in 1 contract
Samples: Power Purchase Agreement (Bangor Hydro Electric Co)
Post-Closing Adjustments. As soon as practicable after If, at any time during the Closing, but in no event later than one hundred and eighty (180) days thereafterday period following the Closing Date, Seller shall prepare and deliver Purchaser or Seller, respectively, believes that it is entitled to Purchaser receive a final settlement statement (the “Final Settlement Statement”) setting forth each adjustment or payment that was not finally determined as refund of any portion of the funds paid at Closing because Seller's Estimate overestimated any portion of the Purchase Price hereunder or Seller believes that it is entitled to receive an additional amount over and showing above the calculation funds paid at Closing because Seller's Estimate underestimated any portion of such adjustments the Purchase Price hereunder, as applicable, Purchaser or Seller, as applicable, shall submit a statement to Seller or Purchaser, as applicable, that describes the proposed adjustment to Seller's Estimate and the resulting Final Purchase Pricebasis therefor in reasonable detail. Seller or Purchaser, as applicable, shall make have the right to have its workpapers own accountants review the proposed adjustment and other information available to Purchaser to review in order to confirm all underlying books and records. In the adjustments shown on Seller’s draft. As soon event Seller or Purchaser, as practicable applicable, does not disapprove the proposed adjustment within ten (10) business days after receipt of thereof, the Final Settlement Statement, but in no event later than sixty (60) days thereafter, Purchaser shall deliver to Seller a written report containing any changes that Purchaser proposes to make to the Final Settlement Statement. Any failure by Purchaser to deliver to Seller the written report detailing Purchaser’s proposed changes to the Final Settlement Statement within sixty (60) days following Purchaser’s receipt of the Final Settlement Statement matter shall be deemed an acceptance by Purchaser of the Final Settlement Statement to be conclusively determined as submitted by Purchaser or Seller, as applicable. The parties shall agree with respect to In the changes proposed by event Seller or Purchaser, if anyas applicable, no later than sixty disapproves the proposed adjustment in a writing delivered to and received by Purchaser or Seller, as applicable, within ten (6010) days after Seller receives from Purchaser receipt thereof, the written report described above containing Purchaser’s proposed changes. If matter shall be referred to an independent certified public accountant or public accounting firm (the "Auditor"), selected mutually reasonably by Purchaser and the Seller cannot then agree upon the Final Settlement StatementSeller, the whose determination of the amount of the Final Settlement Statement matter shall be submitted to a mutually agreed firm of independent public accountants (the “Accounting Firm”). The determination by the Accounting Firm shall be conclusive final and binding on the parties hereto parties. Seller and Purchaser shall cooperate fully with the Auditor and shall use their respective best efforts in good faith to enable the Auditor to resolve any dispute within thirty (30) days after submission of the matter to the Auditor. The fees and expenses of the Auditor shall be enforceable against any party hereto paid solely by Purchaser; provided, however, that in any court the event an aggregate adjustment is made in favor of competent jurisdictionPurchaser by the Auditor in an amount equal to at least $25,000, then the fees and expenses of the Auditor shall be paid solely by Seller. Any costs and expenses incurred refund of any funds paid to Seller at Closing and/or any payment due to Seller by the Accounting Firm pursuant to this Section 12.1 shall be borne by the Seller and the Purchaser equally. The date upon which such agreement is reached or upon which the Final Purchase Price is establishedas a result of any adjustment, as applicable, shall be herein called due and payable in full within fifteen (15) days after the “Final Settlement Date.” In the eventamount of such refund and/or payment has been determined as set forth herein;
Appears in 1 contract
Samples: Assignment and Assumption Agreement (Life Critical Care Corp)
Post-Closing Adjustments. As soon as practicable after The Estimated Closing Balance Sheet ------------------------ shall become final and binding unless Acquiror gives written notice of its disagreement (a "Notice of Disagreement") to the Closing, but in no event later than Shareholders' Agent designated ---------------------- pursuant to Article VIII within one hundred eighty twenty (180120) days thereafter, Seller following the ------------ Closing Date. The Notice of Disagreement shall prepare and deliver to Purchaser a final settlement statement specify in reasonable detail the nature of any disagreement so asserted. The Shareholders Agent shall have twenty (the “Final Settlement Statement”20) setting forth each adjustment or payment that was not finally determined as of the Closing and showing the calculation of such adjustments and the resulting Final Purchase Price. Seller shall make days following its workpapers and other information available to Purchaser to review in order to confirm the adjustments shown on Seller’s draft. As soon as practicable after receipt of the Final Settlement StatementNotice of Disagreement to review the Notice of Disagreement and to give notice of any disagreement therewith (the "Counter-Notice of Disagreement") to Acquiror. If the Shareholders' Agent does ------------------------------ not give a Counter-Notice of Disagreement within such period, but in no event later than sixty (60) days thereafter, Purchaser shall deliver to Seller a written report containing any changes that Purchaser proposes to make to the Final Settlement Statement. Any failure by Purchaser to deliver to Seller the written report detailing Purchaser’s proposed changes to the Final Settlement Statement within sixty (60) days following Purchaser’s receipt of the Final Settlement Statement Estimated Closing Balance Sheet shall be deemed an acceptance by Purchaser adjusted as set forth in the Notice of Disagreement and, as so adjusted, shall be final and binding upon all parties. If the Final Settlement Statement as submitted by SellerShareholders' Agent gives timely Counter-Notice of Disagreement, Acquiror and the Shareholders' Agent shall attempt in good faith to resolve their disagreements. The parties shall agree If Acquiror and the Shareholders' Agent are unable to resolve all of their disagreements with respect to the changes proposed by Purchaser, if any, no later than sixty Estimated Closing Balance Sheet within twenty (6020) days after Seller receives from Purchaser following delivery of a Counter-Notice of Disagreement, Acquiror shall prepare an audited balance sheet of Target immediately prior to the written report described above containing Purchaser’s proposed changesClosing (the "Audited Closing Balance Sheet"). If the Purchaser and the Seller cannot then agree upon the Final Settlement Statement, the determination of the amount of the Final Settlement Statement The Audited Closing Balance ----------------------------- Sheet shall be submitted to a mutually agreed audited by KPMG (or another firm of independent public accountants (the “Accounting Firm”). The determination by the Accounting Firm shall be conclusive mutually acceptable to Acquiror and binding on the parties hereto Target) and shall be enforceable against any party hereto prepared in any court accordance with GAAP in a manner consistent with Target's accounting policies used in the preparation of competent jurisdictionthe Target Balance Sheet. Any costs and expenses incurred by Promptly following the Accounting Firm pursuant to this Section 12.1 determination of the Audited Closing Balance Sheet, the Cash Adjustments shall be borne by adjusted to reflect any relevant differences between the Seller Estimated Closing Balance Sheet and the Purchaser equallyAudited Closing Balance Sheet, and any required payment shall be made to Acquiror, by wire transfer of immediately available funds, not later than five (5) Business Days following such determination, together with interest from the Closing Date to the date of such payment at a rate of ten percent (10%) per annum. At the election of Acquiror in its sole discretion, any required payment by Target shareholders may be recovered by Acquiror as a claim against the Escrow Fund. The date upon which such agreement is reached or upon which fees and disbursements of the Final Purchase Price is established, audit shall be herein called paid fifty percent (50%) by Acquiror and fifty percent (50%) by Target shareholders out of the “Final Settlement DateEscrow Fund.” In the event
Appears in 1 contract
Samples: Agreement and Plan of Reorganization (Ravisent Technologies Inc)
Post-Closing Adjustments. As soon The Purchase Price shall be increased by the amount by which the retained profits (accumulated earnings less declared dividends) (Bilanzgewinn) of the Company for the fiscal year ended September 30, 2011 as practicable after determined by the Closing, but in no event later than one hundred eighty Company’s audited financial statements (180Jahresabschluss) days thereafter, Seller shall prepare and deliver to Purchaser a final settlement statement (the “Final Settlement Statement2011 Financial Statements”) setting forth each adjustment or payment that was not finally determined as prepared by accountants of Purchaser’s choice, applying German GAAP (the “Retained Profits”) exceed the amount of EUR 2,000,000.00 (in words: Euro two million). The 2011 Financial Statements shall be prepared on the basis of the Closing and showing unaudited financial statements for the calculation of such adjustments and the resulting Final Purchase Pricefiscal year ending on September 30, 2011 to be prepared by Xx. Seller shall make its workpapers and other information available to Purchaser to review in order to confirm the adjustments shown on Seller’s draft. As soon as practicable after receipt of the Final Settlement Statement, but in no event later than sixty (60) days thereafter, Purchaser shall deliver to Seller a written report containing any changes that Purchaser proposes to make to the Final Settlement Statement. Any failure by Purchaser to deliver to Seller the written report detailing Purchaser’s proposed changes to the Final Settlement Statement Xxxx Xxxxxxxxx within sixty (60) days following Purchaser’s receipt of the Final Settlement Statement shall be deemed an acceptance by Purchaser of the Final Settlement Statement as submitted by Seller. The parties shall agree with respect to the changes proposed by Purchaser, if any, no later than sixty (60) ten days after Seller receives from Purchaser the written report described above containing Purchaser’s proposed changesSignature Date. If the Purchaser and It is hereby understood that any bonuses to which the Seller canmay be entitled pursuant to his employment agreement (Anstellungsvertrag) with the Company shall not then agree upon the Final Settlement Statement, be considered in the determination of the amount Retained Profits. The 2011 Financial Statements shall be prepared in accordance with German GAAP as consistently applied in past practice (in particular the financial statements of the Final Settlement Statement Company for the fiscal year ending on September 30, 2010) maintaining, to the extent permitted under mandatory statutory provisions and accepted accounting principles, full accounting and valuation consistency (Bilanzkontinuität und Bilanzstetigkeit). For the avoidance of doubt, the Retained Profits of the Company for the fiscal year ending on September 30, 2011 shall not be reduced by transferring any amounts to the profit reserve (Gewinnrücklage). Any increase in the Purchase Price shall be submitted paid by wire transfer of immediately available funds by the Purchaser to the account reflected in Section 3.2 within thirty (30) days of the 2011 Financial Statements having become final and binding between the Parties in accordance with Section 3.4. If and to the extent accruals (Rückstellungen) will be made in the 2011 Financial Statements to cover potential claims in connection with the damage event disclosed in Schedule 23A, and if and to the extent these accruals will be dissolved (“Dissolved Accruals”) no later than the date the financial statements of the Company for the fiscal year ended September 30, 2012 are prepared by the Company (such date, the “2012 Financial Statement Date”), for example, due to payments of an insurance provider of the Company, the Retained Profits shall be recalculated as if the Dissolved Accruals had not been made in the 2011 Financial Statements. The Purchaser shall without undue delay inform the Seller about any dissolution of such accruals, especially if such dissolution is due to payment by an insurance provider of the Company, and the Seller shall have the right to review the documentation pertaining to the calculation of the accruals and their dissolution. Any further increase of the Purchase Price as a mutually agreed firm result of independent public accountants such recalculation shall be paid to the Seller. For the avoidance of doubt, this clause does not constitute an obligation of either Party or of the Company to establish accruals in the 2011 Financial Statements for the damage event set forth in Schedule 23A. Alternatively, if and to the extent the damage event set forth in Schedule 23A results in damages to the Company that exceeds the accruals made in the 2011 Financial Statements to account for such damage event (the “Accounting FirmExcess Damages”). The determination by ) and such damages are incurred no later than the Accounting Firm 2012 Financial Statement Date, the Retained Profits shall be conclusive and binding on recalculated as if an additional accrual had been made equal to such Excess Damages. Any further decrease to the parties hereto and Purchase Price as a result of such recalculation shall be enforceable against any party hereto in any court of competent jurisdiction. Any costs and expenses incurred by deducted from the Accounting Firm pursuant Deferred Consideration or, if such decrease to this Section 12.1 the Purchase Price occurs after the Deferred Consideration is paid to the Seller, shall be borne paid by the Seller to the Purchaser, provided that such deduction from the Deferred Consideration and such payment by the Purchaser equally. The date upon which such agreement is reached or upon which the Final Purchase Price is established, Seller (i) shall not exceed EUR 360,000 and (ii) shall be herein called counted toward the “Final Settlement Datecap on the aggregate liability of the Seller set forth in Section 5.1.2(c).” In the event
Appears in 1 contract
Post-Closing Adjustments. As soon as practicable after the Closing, but in no event later than one hundred eighty (180a) Within ninety (90) days thereafterfollowing the Closing Date, Seller the Buyer shall prepare and deliver to Purchaser TVV a final settlement written statement (the “Final Settlement Closing Statement”) setting forth each adjustment or payment that was not finally determined which shall include (i) the Buyer’s calculations of the Company’s (A) Cash and Cash Equivalents as of the Closing Adjustment Time, (B) Indebtedness outstanding as of the Adjustment Time, excluding the indebtedness evidenced by the Hxxxxx Redemption Note, (C) Net Working Capital as of the Adjustment Time and showing (D) Company Expenses outstanding as of the Adjustment Time and (ii) the Buyer’s calculation of such adjustments the Closing Date Payment based upon the Closing Statement (including provision for a 2.93% adjustment for the Rollover Amount). The Closing Statement (and the resulting components thereof) will be prepared and determined in accordance with GAAP as modified by the definitions of Cash and Cash Equivalents, Indebtedness (excluding the Hxxxxx Redemption Note), Company Expenses and Net Working Capital (and the Net Working Capital calculation shall be consistent with the sample working capital calculation set forth on Exhibit C). The preparation of the Closing Statement shall be for the sole purpose of determining the Final Purchase PriceClosing Date Payment (as defined below). Seller TVV shall make its workpapers and other information available to Purchaser to review in order to confirm have thirty (30) days following the adjustments shown on Seller’s draft. As soon as practicable after receipt of the Final Settlement StatementClosing Statement (the “Review Period”) to review the same. On or before the expiration of the Review Period, but in no event later than sixty (60) days thereafter, Purchaser TVV shall deliver to Seller the Buyer a written report containing statement setting forth in reasonable detail (y) any changes that Purchaser proposes specific item on the Closing Statement which TVV believes has not been prepared in accordance with this Agreement and the correct amount of such specific item and (z) TVV’s alternative calculation of the Closing Date Payment (the “Closing Statement Response Notice”). Any items not specifically objected to make in the Closing Statement Response Notice will be deemed to have been accepted by, and will be binding and conclusive on, TVV on the thirtieth (30th) day following delivery of the Closing Statement to TVV. If TVV does not deliver such Closing Statement Response Notice to the Final Settlement Statement. Any failure by Purchaser to deliver to Seller Buyer within the written report detailing Purchaser’s proposed changes to the Final Settlement Statement within sixty (60) days following Purchaser’s receipt of the Final Settlement Statement Review Period, TVV shall be deemed an acceptance by Purchaser of to have accepted the Final Settlement Closing Statement as submitted by Seller. The parties shall agree with respect to the changes proposed by Purchaser, if any, no later than sixty (60) days after Seller receives from Purchaser the written report described above containing Purchaser’s proposed changes. If the Purchaser in its entirety and the Seller cannot then agree upon the Final Settlement Statement, Closing Statement (and the determination of the amount of the Final Settlement Statement Closing Date Payment set forth therein) shall be submitted to a mutually agreed firm of independent public accountants (the “Accounting Firm”). The determination by the Accounting Firm shall be binding and conclusive and binding on the parties hereto and shall be enforceable against any party hereto in any court of competent jurisdiction. Any costs and expenses incurred by the Accounting Firm pursuant not subject to this Section 12.1 shall be borne by the Seller and the Purchaser equally. The date upon which such agreement is reached or upon which the Final Purchase Price is established, shall be herein called the “Final Settlement Dateappeal.” In the event
Appears in 1 contract
Post-Closing Adjustments. (a) As soon as practicable practicable, but not later than 60 days after the ClosingClosing Date, but in no event later than one hundred eighty (180) days thereafter, Seller Purchaser LLC shall prepare and deliver to Purchaser a final settlement statement Jasox (x) proposed calculations of the “Final Settlement Statement”) setting forth Net Operating Assets of Deltak, Bradxx xxx each adjustment or payment that was not finally determined Subsidiary as of the Closing Date (the "Proposed Closing Date Statements of Net Operating Assets") and showing (ii) proposed calculations of the calculation of such adjustments BN Reimbursement Amount, the JN Reimbursement Amount and the resulting Final Purchase PriceDN Reimbursement Amount, each as of the Closing Date (collectively, the "Proposed Reimbursement Amounts"). Seller Purchaser LLC shall make permit Jasox xxx its workpapers independent certified public accountant to review all accounting records and other information available all work papers and computations used in the preparation of the Proposed Closing Date Statements of Net Operating Assets and Proposed Reimbursement Amounts. If Jasox xxxs not give notice of dispute to Purchaser to review in order to confirm LLC within 30 days of receiving the adjustments shown on Seller’s draft. As soon as practicable after receipt Proposed Closing Date Statements of Net Operating Assets and Proposed Reimbursement Amounts, the Final Settlement Statement, but in no event later than sixty (60) days thereafter, Purchaser shall deliver to Seller a written report containing any changes parties agree that Purchaser proposes to make to the Final Settlement Statement. Any failure by Purchaser to deliver to Seller the written report detailing Purchaser’s proposed changes to the Final Settlement Statement within sixty (60) days following Purchaser’s receipt Proposed Closing Date Statements of the Final Settlement Statement Net Operating Assets shall be deemed an acceptance by Purchaser to set forth the Net Operating Assets of Deltak, Bradxx xxx each Subsidiary as of the Final Settlement Statement Closing Date and the Proposed Reimbursement Amounts shall be deemed to set forth the BN Reimbursement Amount as submitted by Seller. The parties shall agree with respect to of the changes proposed by PurchaserClosing Date, if any, no later than sixty (60) days after Seller receives from Purchaser JN Reimbursement Amount as of the written report described above containing Purchaser’s proposed changesClosing Date and DN Reimbursement Amount as of the Closing Date. If Jasox xxxes notice of dispute to Purchaser LLC within such 30-day period (which notice shall state with reasonable specificity the Purchaser reasons for any disagreement and the Seller amount in dispute), Jasox xxx Purchaser LLC shall negotiate in good faith to resolve the dispute. If, after 15 days from the date notice of dispute is given hereunder, Jasox xxx Purchaser LLC cannot then agree upon on the Final Settlement Statementresolution of the dispute, the determination of the amount of the Final Settlement Statement items in dispute shall be submitted to a mutually agreed firm of independent public accountants (the “Accounting Firm”). The determination by the Accounting Firm shall be conclusive and binding on the parties hereto and shall be enforceable against any party hereto in any court of competent jurisdiction. Any costs and expenses incurred by the Accounting Firm pursuant to this Section 12.1 shall be borne by the Seller and the Purchaser equally. The date upon which such agreement is reached or upon which the Final Purchase Price is established, shall be herein called the “Final Settlement Date.” In the eventsubmitted
Appears in 1 contract
Samples: Purchase Agreement (Global Power Equipment Group Inc/)
Post-Closing Adjustments. (a) As soon as practicable practicable, but not later than 75 days after the Closing, but in no event later than one hundred eighty (180) days thereafterClosing Date, Seller shall prepare and deliver to Purchaser a final settlement Closing Date Balance Sheet and a statement (the “Final Settlement "Seller's Post-Closing Statement”") setting forth each adjustment or payment that was not finally determined as a reconciliation of the Net Working Capital Estimate, the Closing and showing the calculation of such adjustments Adjustment Amount and the resulting Estimated Purchase Price that takes into account changes between the Preliminary Closing Date Balance Sheet and the Closing Date Balance Sheet. Based upon such reconciliation, Seller's Post-Closing Statement shall set forth a final determination of the Purchase Price (the "Final Purchase Price"). Seller's Post-Closing Statement shall be prepared in accordance with generally accepted accounting principles applied consistently with the method of accounting used in preparing Seller's Closing Statement. Seller shall retain Deloitte & Touche to perform an audit of Seller's Post-Closing Statement. Seller shall permit Purchaser and its independent certified public accountant to review all accounting records and all work papers and computations used in the preparation of Seller's Post-Closing Statement. If Purchaser does not give notice of dispute to Seller within 25 days of receiving Seller's Post-Closing Statement, the parties agree that Seller's Post-Closing Statement shall be deemed to set forth the Final Purchase Price. If Purchaser gives notice of dispute to Seller within such 25-day period, Seller and Purchaser shall negotiate in good faith to resolve the dispute. If, after 20 days from the date notice of dispute is given hereunder, Seller and Purchaser cannot agree on the resolution of the dispute, the dispute shall be resolved pursuant to section 19.10. In the event the dispute is submitted to arbitration pursuant to section 19.10, Purchaser and Seller shall make its workpapers and other information available use their best efforts to Purchaser to review in order to confirm resolve the adjustments shown on Seller’s draft. As soon dispute as practicable after receipt of the Final Settlement Statement, but in no event later than sixty (60) days thereafter, Purchaser shall deliver to Seller a written report containing any changes that Purchaser proposes to make to the Final Settlement Statement. Any failure by Purchaser to deliver to Seller the written report detailing Purchaser’s proposed changes to the Final Settlement Statement within sixty (60) days following Purchaser’s receipt of the Final Settlement Statement shall be deemed an acceptance by Purchaser of the Final Settlement Statement expeditiously as submitted by Seller. The parties shall agree with respect to the changes proposed by Purchaser, if any, no later than sixty (60) days after Seller receives from Purchaser the written report described above containing Purchaser’s proposed changes. If the Purchaser and the Seller cannot then agree upon the Final Settlement Statement, the determination of the amount of the Final Settlement Statement shall be submitted to a mutually agreed firm of independent public accountants (the “Accounting Firm”). The determination by the Accounting Firm shall be conclusive and binding on the parties hereto and shall be enforceable against any party hereto in any court of competent jurisdiction. Any costs and expenses incurred by the Accounting Firm pursuant to this Section 12.1 shall be borne by the Seller and the Purchaser equally. The date upon which such agreement is reached or upon which the Final Purchase Price is established, shall be herein called the “Final Settlement Datepossible.” In the event
Appears in 1 contract
Samples: Asset Purchase and Sale Agreement (Generac Portable Products Inc)
Post-Closing Adjustments. As soon as practicable after the ClosingClosing Date, but in no event later than one hundred eighty (180) days thereafter, Seller Buyer shall cause its accountants to prepare and deliver to Purchaser the Representative a final settlement statement consolidated balance sheet for the Seller (the “Final Settlement StatementClosing Date Balance Sheet”) setting forth and a calculation of the Current Asset Value Shortfall, in each adjustment or payment that was not finally determined case, measured as of the close of business on the Closing and showing the calculation of such adjustments and the resulting Final Purchase PriceDate, prepared in accordance with United States generally accepted accounting principles (“GAAP”). Seller Buyer shall make endeavor in good faith to cause its workpapers and other information available to Purchaser to review in order to confirm the adjustments shown on Seller’s draft. As soon as practicable after receipt of the Final Settlement Statement, but in no event later than sixty (60) days thereafter, Purchaser shall deliver to Seller a written report containing any changes that Purchaser proposes to make to the Final Settlement Statement. Any failure by Purchaser accountants to deliver to Seller the written report detailing Purchaser’s proposed changes Representative the Closing Date Balance Sheet and calculation of the Current Asset Value Shortfall within 60 days after the Closing Date; provided, however, that if the Closing Date Balance Sheet is not delivered to the Final Settlement Statement Representative by Buyer’s accountants within sixty 60 days after the Closing Date, the Estimated Closing Date Balance Sheet shall be the final consolidated balance sheet of Seller for purposes of this Section 3. Buyer shall also make available to the Representative copies of all work papers and other documents and data as was used to calculate the Closing Date Balance Sheet, and Buyer shall set out all proposed adjustments in reasonable detail in a written statement delivered to Representative. The Representative shall have the right to dispute the Closing Date Balance Sheet (60and any items therein) days following Purchaser’s receipt and the accompanying calculation of the Final Settlement Statement Current Asset Value Shortfall and make any proposed adjustments thereto as provided in Section 3(c) below. If it is determined after completion of the time and procedure described in Section 3(c) below that there is a Current Asset Value Shortfall in excess of the estimated Current Asset Value Shortfall and the Representative does not dispute such determination as described in Section 3(c) below, Buyer Shares in an amount equal to the excess Current Asset Value Shortfall shall be deemed an acceptance by Purchaser of deducted from the Final Settlement Statement as submitted by Seller. The parties shall agree with respect to the changes proposed by Purchaser, if any, no later than sixty (60) days after Seller receives from Purchaser the written report described above containing Purchaser’s proposed changes. If the Purchaser Escrow Fund and the Seller cannot then agree upon the Final Settlement Statement, the determination of the amount of the Final Settlement Statement shall be submitted to a mutually agreed firm of independent public accountants (the “Accounting Firm”). The determination delivered by the Accounting Firm shall be conclusive and binding on the parties hereto and shall be enforceable against any party hereto in any court of competent jurisdiction. Any costs and expenses incurred by the Accounting Firm pursuant Escrow Agent to this Section 12.1 shall be borne by the Seller and the Purchaser equally. The date upon which such agreement is reached or upon which the Final Purchase Price is established, shall be herein called the “Final Settlement DateBuyer.” In the event
Appears in 1 contract
Post-Closing Adjustments. As soon as practicable (a) Provident shall, on or before the date that is 60 days after the ClosingClosing Date, but prepare a proposed reconciliation of Net Cash From the Business through the Closing Date (the "Reconciliation") and a certification of the treasurer of Provident that all items on the Reconciliation were determined in no event later than one hundred eighty (180) good faith by Sellers and were based upon the books and records of Sellers. Promptly after its preparation, Provident shall deliver copies of the Reconciliation to Parent. Parent shall have the right to review the Reconciliation and comment thereon for a period of 45 days thereafter, Seller after receipt thereof. Provident and Sellers agree that Parent and its accountants may have access to the accounting records of Provident and Sellers relating to the preparation of the Reconciliation for the purpose of conducting their review. Any changes in the Reconciliation that are agreed to by Parent and Provident within such 45-day-period shall prepare and deliver to Purchaser be incorporated into a final settlement statement reconciliation of Net Cash From the Business through the Closing Date (the “"Final Settlement Statement”) setting forth each adjustment Reconciliation"). In the event that Purchasers and Provident are unable to agree on the manner in which any item or payment that was not finally determined as of items should be treated in the Closing and showing the calculation of such adjustments and the resulting Final Purchase Price. Seller shall make its workpapers and other information available to Purchaser to review in order to confirm the adjustments shown on Seller’s draft. As soon as practicable after receipt preparation of the Final Settlement StatementReconciliation within such 45-day period, but in no event later than sixty (60) days thereafter, Purchaser shall deliver to Seller a separate written report containing any changes that Purchaser proposes to make to the Final Settlement Statement. Any failure by Purchaser to deliver to Seller the written report detailing Purchaser’s proposed changes to the Final Settlement Statement within sixty (60) days following Purchaser’s receipt reports of the Final Settlement Statement such item or items shall be deemed an acceptance by Purchaser of the Final Settlement Statement as submitted by Seller. The parties shall agree with respect to the changes proposed by Purchaser, if any, no later than sixty (60) days after Seller receives from Purchaser the written report described above containing Purchaser’s proposed changes. If the Purchaser made in concise form and the Seller cannot then agree upon the Final Settlement Statement, the determination of the amount of the Final Settlement Statement shall be submitted referred to a such independent accounting firm as Parent and Provident shall mutually agreed firm of independent public accountants designate (the “Accounting Firm”firm making such determination is referred to herein as the "Third Party Accountant"). The determination Third Party Accountant shall determine as promptly as practicable the manner in which such item or items shall be treated on the Final Reconciliation; provided, however, that the dollar amount of each item in dispute shall be determined within the range of dollar amounts proposed by Provident and Parent, respectively. The determinations by the Accounting Firm Third Party Accountant as to the items in dispute shall be in writing and shall be binding and conclusive and binding on the parties hereto and shall be enforceable against any party hereto so reflected in any court of competent jurisdictionthe Final Reconciliation. Any The fees, costs and expenses incurred of retaining the Third Party Accountant shall be shared equally by the Accounting Firm pursuant to this Section 12.1 shall be borne by parties. Following the Seller and resolution of all disputed items (or, if there is no dispute, promptly after the Purchaser equally. The date upon which such parties reach agreement is reached or upon which on the Final Purchase Price is establishedReconciliation), Provident shall be herein called prepare the “Final Settlement DateReconciliation and shall deliver copies of such Reconciliation and such calculation to Parent.” In the event
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Samples: Asset Transfer and Acquisition Agreement (Provident Companies Inc /De/)
Post-Closing Adjustments. As soon as reasonably practicable after following the Closing, but in no event later than one hundred eighty (180) days thereafterDecember 14, Seller shall prepare and deliver to Purchaser a final settlement statement 2017 (the “Final Settlement StatementReview Date”) setting forth each adjustment or payment that was not finally determined as ), Purchaser and Sellers shall cause a review of the Closing and showing the calculation prorations to be completed by a firm of such adjustments and the resulting Final Purchase Price. Seller shall make its workpapers and public accountants or other information available to Purchaser to review in order to confirm the adjustments shown on Seller’s draft. As soon as practicable after receipt of the Final Settlement Statement, but in no event later than sixty (60) days thereafter, Purchaser shall deliver to Seller a written report containing any changes that Purchaser proposes to make to the Final Settlement Statement. Any failure consulting firm selected by Purchaser to deliver to Seller and approved by Sellers, which approval shall not be unreasonably withheld or delayed (the written report detailing Purchaser’s proposed changes to “Prorations Consultant”), the Final Settlement Statement within sixty (60) days following Purchaser’s receipt scope of the Final Settlement Statement which shall be deemed an acceptance by Purchaser limited to a confirmation of the Final Settlement Statement as submitted by Seller. The parties shall agree final closing adjustments with respect to any item on the changes proposed by PurchaserProration Schedule (or any item omitted therefrom), if anyin accordance with the provisions of Section 5.4 of this Contract; provided, no later than sixty however, that neither Party shall have any obligation to re-adjust any items for any Property unless such items exceed Twenty-Five Thousand Dollars (60$25,000.00) days after Seller receives from Purchaser in magnitude (either individually or in the written report described above containing Purchaser’s proposed changesaggregate) with respect to such Property. If Notwithstanding the Purchaser foregoing, any post-closing adjustments and the Seller cannot then agree upon the Final Settlement Statement, the determination of the amount of the Final Settlement Statement prorations to be determined pursuant to Section 5.4.4 shall be submitted based, to a mutually agreed firm of independent public accountants the extent necessary, on estimates using the most recent and accurate information available at such time. On or before December 15, 2017 (the “Accounting FirmProrations Survival Date”). The determination , any issues arising from a review by Purchaser and Sellers of the prorations review contemplated by this Section 5.5 following the Review Date shall be presented to and determined by the Accounting Firm Prorations Consultant. If such determination necessitates a payment from one party to the other, such payment shall be conclusive made by the obligated party on or before the Prorations Survival Date. All determinations made hereunder by the Prorations Consultant shall be considered final and binding on the parties hereto both Purchaser and shall be enforceable against any party hereto in any court of competent jurisdictionSellers. Any costs Section 5.4 and expenses incurred by the Accounting Firm pursuant to this Section 12.1 5.5 shall be borne by survive until the Seller Prorations Survival Date. During the period from and after Closing through and including the Purchaser equally. The date upon which such agreement is reached or upon which Prorations Survival Date, the Final Purchase Price is established, Trust shall be herein called the “Final Settlement Datemaintain a liquidity covenant of no less than Three Million Dollars ($3,000,000).” In the event
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Samples: Purchase and Sale Contract (DC Industrial Liquidating Trust)
Post-Closing Adjustments. As soon Seller has completed its reconciliation for charges paid in calendar year 2005 for percentage rents, escalation charges for real estate taxes, insurance, parking charges, marketing fund charges, operating expenses, maintenance escalation rents or charges, cost-of-living increases or other charges of a similar nature (“Additional Rents”) charged to Tenants under the Leases. Seller agrees to directly reimburse the applicable tenant (as practicable opposed to credit future rent) for the amounts of Additional Rent calculated by Seller as being due to such tenant for the calendar year 2005. With respect to any Additional Rent (including Additional Rent collected by Landlord for the period from January 1, 2006 through Closing) which is not finally adjusted between the landlord and any tenant under any Lease until after the Closing Date, then Purchaser shall submit to Seller, within thirty (30) days after the Additional Rents have been finally adjusted between landlord and the tenants, a supplemental statement covering any such Additional Rents or any other items which have been finally adjusted between the landlord and such tenants, containing a calculation of the adjustments of such Additional Rents. In the event Seller or the landlord is obligated to reimburse a tenant for Additional Rent for calendar year 2005 in an amount in excess of the amount paid by Seller as described above or with respect to Additional Rent paid during the period from January 1, 2006 through Closing, but in no event later than one hundred eighty then Seller shall reimburse Purchaser for such amount within thirty (18030) days thereafter, Seller shall prepare and deliver to Purchaser a final settlement statement (the “Final Settlement Statement”) setting forth each adjustment or payment that was not finally determined as of the Closing and showing the calculation of such adjustments and the resulting Final Purchase Price. Seller shall make its workpapers and other information available to Purchaser to review in order to confirm the adjustments shown on Seller’s draft. As soon as practicable after receipt of the Final Settlement Statementsupplemental statement. If Purchaser or the landlord recovers any Additional Rent from any tenant attributable to calendar year 2005 or the period from January 1, but in no event later than sixty 2006 through Closing, then Purchaser shall pay such amount to Seller within thirty (6030) days thereafterof collecting such payments. With respect to each item of Additional Rent, Purchaser each party will shall deliver to Seller a written report containing any changes that Purchaser proposes to make available to the Final Settlement Statement. Any failure other party during regular business hours the records relating to such items for inspection or audit by Purchaser to deliver to Seller the written report detailing Purchaser’s proposed changes to the Final Settlement Statement within sixty (60) days following Purchaser’s receipt of the Final Settlement Statement shall be deemed an acceptance by Purchaser of the Final Settlement Statement as submitted by Seller. The parties shall agree with respect to the changes proposed by Purchaser, if any, no later than sixty (60) days after Seller receives from Purchaser the written report described above containing Purchaser’s proposed changes. If the Purchaser and the Seller cannot then agree upon the Final Settlement Statement, the determination of the amount of the Final Settlement Statement shall be submitted to a mutually agreed firm of independent public accountants (the “Accounting Firm”). The determination by the Accounting Firm shall be conclusive and binding on the parties hereto and shall be enforceable against any such party hereto in any court of competent jurisdiction. Any costs and expenses incurred by the Accounting Firm pursuant to this Section 12.1 shall be borne by the Seller and the Purchaser equally. The date upon which such agreement is reached or upon which the Final Purchase Price is established, shall be herein called the “Final Settlement Dateits representatives.” In the event
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Samples: Stock Purchase and Sale Agreement (Behringer Harvard Reit I Inc)
Post-Closing Adjustments. As soon as practicable (a) No later than ninety (90) days after the ClosingClosing Date, but in no event later than one hundred eighty (180) days thereafter, Seller Purchaser shall prepare and deliver to Purchaser Seller a final settlement statement (the “Final Settlement Closing Statement”) setting forth each adjustment or payment that was not finally determined as Purchaser’s good faith calculation of (i) the Closing Cash, (ii) the Closing Debt, (iii) the Closing Net Working Capital, (iv) the Closing Transaction Expenses, (v) the Closing Consideration, and showing (vi) the calculation of such adjustments and the resulting Final Purchase PriceProposed Adjustment Amount. Seller The “Proposed Adjustment Amount” shall make its workpapers and other information available be equal to Purchaser to review in order to confirm the adjustments shown on Seller’s draft. As soon as practicable after receipt of the Final Settlement Statement, but in no event later than sixty (60which may be a positive or negative number) days thereafter, Purchaser shall deliver to Seller a written report containing any changes that Purchaser proposes to make to the Final Settlement Statement. Any failure by Purchaser to deliver to Seller the written report detailing Purchaser’s proposed changes to the Final Settlement Statement within sixty (60) days following Purchaser’s receipt of the Final Settlement Statement shall be deemed an acceptance by Purchaser of the Final Settlement Statement as submitted by Seller. The parties shall agree with respect to the changes proposed by Purchaser, if any, no later than sixty (60) days after Seller receives from Purchaser the written report described above containing Purchaser’s proposed changes. If the Purchaser and the Seller cannot then agree upon the Final Settlement Statement, the determination of the amount of the Final Settlement Statement shall be submitted to a mutually agreed firm of independent public accountants (the “Accounting Firm”). The determination by the Accounting Firm shall be conclusive and binding Closing Consideration as set forth on the parties hereto and shall be enforceable against any party hereto in any court of competent jurisdiction. Any costs and expenses incurred by the Accounting Firm Closing Statement delivered pursuant to this Section 12.1 2.3 minus the Seller’s determination of Closing Consideration as set forth in the Estimated Closing Statement delivered pursuant to Section 2.2. The Closing Statement and all calculations therein shall be borne by prepared in accordance with the terms hereof and the applicable definitions herein, and the Closing Net Working Capital shall be prepared in accordance with the terms hereof, the applicable definitions herein, and in accordance with Exhibit D. (b) Seller shall have thirty (30) days following its receipt of the Closing Statement (the “Review Period”) to review the Closing Statement and the calculation, amounts and other items therein. During the Review Period, Purchaser shall, and shall cause its Subsidiaries and Representatives to, reasonably cooperate with and provide assistance to Seller and Seller’s Representatives in their review of the Purchaser equally. The date upon which such agreement is reached or upon which Closing Statement and make available to Seller and Seller’s Representatives all personnel, books, records, documents, work papers and other information of Purchaser, the Final Purchase Price is establishedCompany, shall be herein called the “Final Settlement Date.” In Purchased Assets and the eventBusiness reasonably available to Purchaser, 3
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Samples: Transition Services Agreement (Foundation Building Materials, Inc.)
Post-Closing Adjustments. As soon as practicable after the ClosingPromptly, but in no any event later than one hundred eighty within thirty (18030) days thereafterafter Closing (and any subsequent Closing with respect to any Withdrawn Project), Seller shall prepare and deliver to Purchaser Buyer a final settlement statement detailed calculation of the Purchase Price (the “Final Settlement Statement”"CLOSING TRUE-UP"), including all adjustments, reimbursements and similar required payments contemplated under the Purchase Agreement applicable to the Projects transferred at such Closing. Buyer shall promptly, in any event within fifteen (15) setting forth each adjustment or payment that was not finally determined as of the Closing and showing the calculation of such adjustments and the resulting Final Purchase Price. Seller shall make its workpapers and other information available to Purchaser to review in order to confirm the adjustments shown on Seller’s draft. As soon as practicable days after receipt of the Final Settlement Statement, but Closing True-up provide in no event later than sixty writing any objections or corrections to the Closing True-up. If the parties are unable to resolve their differences within twenty (6020) days thereafter, Purchaser shall deliver to Seller a written report containing any changes that Purchaser proposes to make to nationally recognized independent accounting firm (not generally representing the Final Settlement Statement. Any failure by Purchaser to deliver to Seller Buyer or Seller, unless the written report detailing Purchaser’s proposed changes to the Final Settlement Statement within sixty (60parties agree otherwise) days following Purchaser’s receipt of the Final Settlement Statement shall be deemed an acceptance appointed by Purchaser of the Final Settlement Statement as submitted by Buyer and Seller. The parties , which shall agree with respect to calculate the changes proposed by Purchaser, if any, no later than sixty (60) days after Seller receives from Purchaser the written report described above containing Purchaser’s proposed changes. If the Purchaser and the Seller cannot then agree upon the Final Settlement StatementClosing True-up, the determination of such accounting firm to be final. In the amount event the final determination of such accounting firm causes a decrease by more than five percent (5%) of the Final Settlement Statement shall be submitted net amount payable to a mutually agreed firm of independent public accountants (Seller, the “Accounting Firm”). The determination by the Accounting Firm shall be conclusive and binding on the parties hereto and shall be enforceable against any party hereto in any court of competent jurisdiction. Any costs and expenses incurred by of the Accounting Firm pursuant to this Section 12.1 accounting firm for such determination shall be borne for the account of Seller. In the event the final determination of such accounting firm causes an increase by more than five percent (5%) of the Seller net amount payable to Seller, the costs and expenses of the Purchaser equallyaccounting firm for such determination shall be for the account of Buyer. The In all other events, the costs and expenses of the accounting firm for such determination shall be shared equally by Buyer and Seller. Upon the first business day following the final determination of the Closing True-up (which shall be the fifteenth day after receipt of the Closing True-up, if no objection is made, the date upon which such agreement is reached the parties resolve their differences, or upon the date of the final determination of the accounting firm, as applicable), the Buyer shall pay to Seller, or Seller shall reimburse Buyer, as the case may be, the amount by which the Final Purchase Price determined by the Closing True-up exceeds or is established, shall be herein called less than the “Final Settlement DatePurchase Price paid at such Closing.” In the event
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