Common use of Closing Adjustment Statement Clause in Contracts

Closing Adjustment Statement. (a) Not more than five (5) Business Days, but at least one (1) Business Day, prior to the Closing Date, the Seller Shareholder Representative shall in good faith cause to be prepared a balance sheet of the Company (and each other Group Company) as of the Closing Date, in form and substance reasonably satisfactory to Buyer (the “Closing Date Balance Sheet”), which shall be prepared in a manner consistent with the Latest Balance Sheetand shall include a statement of the amount of Corporate Taxes Paid, Corporate Taxes Payable, Target Excess Net Debt, Excess Net Debt, Net Debt, Net Working Capital, Net Working Capital Target and the Net Working Capital Percentage (the “Initial Closing Adjustment Statement”) in each case, for the 12 month period ending on the Closing Date or at the Closing Date, which Seller Shareholder Representative estimate will exist as of the close of business on the day immediately preceding the Closing Date determined for accounting and tax purposes as if such date were the Closing Date together with a representation that such amount was determined in accordance with Accounting Principles consistently applied; provided that the Initial Closing Adjustment Statement (and all components thereof, including without limitation, Corporate Taxes Paid, Corporate Taxes Payable, Target Excess Net Debt, Excess Net Debt, Net Debt, Net Working Capital, Net Working Capital Target and the Net Working Capital Percentage shall be reconciled to US GAAP by Buyer, and upon such reconciliation, such US GAAP reconciliation shall be reflected in the Initial Closing Adjustment Statement). (b) As promptly as practicable, but no later than seventy-five (75) days after the Closing Date, Buyer will cause to be prepared and delivered to the Seller Shareholder Representative a certificate setting forth Buyer’s calculation of each component of the Initial Closing Adjustment Statement, including any resulting adjustments to the Purchase Price, including reflecting the reconciliation of the Initial Closing Adjustment Statement to US GAAP (“Buyer Closing Adjustment Statement”) per the terms and conditions of this Agreement, including Section 1.2(b)(i) and the terms herein,. Buyer will make available to the Seller Shareholder Representative and their accountant all reasonable records and work papers used in preparing the calculation of Buyer Closing Adjustment Statement. (c) If the Seller Shareholder Representative disagrees with Buyer’s calculation of the Buyer Closing Adjustment Statement, or any component thereof, delivered pursuant to Section 1.3(b), the Seller Shareholder Representative may, within thirty (30) days after delivery of the documents referred to in Section 1.3(b), deliver a written notice (the “Objection Notice”) to Buyer disagreeing with such calculation and setting forth the Seller Shareholder Representatives’ calculation of such amount (“Shareholder Closing Adjustment Statement”). Any such Objection Notice shall specify those items or amounts as to which the Seller Shareholder Representative disagrees, and the Seller Shareholder Representative shall be deemed to have agreed with all other items and amounts contained in Buyer’s calculation of the Buyer Closing Adjustment Statement delivered pursuant to Section 1.3(b). If the Seller Shareholder Representative does not deliver an Objection Notice within such thirty (30) day period, then the amount of Buyer Closing Adjustment Statement shall be deemed to be finally determined as set forth on Buyer’s calculation thereof. (d) If an Objection Notice shall be delivered pursuant to Section 1.3(c), the Seller Shareholder Representative and Buyer shall, during the fifteen (15) days following such delivery, use their reasonable best efforts to reach agreement on the disputed items or amounts in order to determine, as may be required, the amount of the Buyer Closing Adjustment Statement, which amounts shall not be less than the amount thereof shown in Buyer’s calculations delivered pursuant to Section 1.3(b), nor more than the amount thereof shown in the Seller Shareholder Representative calculation delivered pursuant to Section 1.3(c) as set forth in the Shareholder Closing Adjustment Statement. If, during such period, the Seller Shareholder Representative and Buyer are unable to reach such agreement, either the Seller Shareholder Representative or Buyer shall promptly thereafter cause a “big four” independent accounting firm of nationally recognized standing reasonably satisfactory to the Seller Shareholder Representative and Buyer, as the case may be, (who shall not have any material relationship with the Company, the Selling Shareholders or Buyer) (“Independent Accounting Firm”) promptly to review this Agreement and the disputed items or amounts for the purpose of calculating Buyer Closing Adjustment Statement. In making such calculation, such Independent Accountant Firm shall consider only those items or amounts in (i) the Shareholder Closing Adjustment Statement, (ii) the Closing Date Balance Sheet or (iii) Buyer’s calculation of the Buyer Closing Adjustment Statement as to which the Seller Shareholder Representative has disagreed. The Independent Accountant Firm’s determination will be based solely on presentations by the Seller Shareholder Representative and Buyer and such Independent Accountant Firm shall deliver to the Seller Shareholder Representative and Buyer as promptly as practicable (but in any event within thirty (30) days of its retention) a report setting forth such calculation (such date, the “Final Resolution Date”). Such report shall be final and binding upon the Selling Shareholders and Buyer, except in cases of manifest error or willful misconduct. The cost of such review and report shall be borne by the Selling Shareholders if the difference between Final Closing Adjustment Statement (as defined in Section 1.4(c) below) and the Selling Shareholder’s calculation of Shareholder Closing Adjustment Statement delivered pursuant to Section 1.3(c) is greater than the difference between Final Closing Adjustment Statement and Buyer’s calculation of the Buyer Closing Adjustment Statement delivered pursuant to Section 1.3(b), and by Buyer if the first such difference is less than the second such difference. For the avoidance of doubt, the Final Closing Adjustment Statement (and the components thereof) shall reflect and shall comply with US GAAP.

Closing Adjustment Statement. (a) Not more than five (5) Business Days, but at least one (1) Business Day, prior AAMAC will prepare and deliver to the Closing Date, Halcyon Partner Vehicle a statement setting forth the Seller Shareholder Representative shall in good faith cause to be prepared a balance sheet of the Company (and each other Group Company) as calculation of the Closing Date, in form and substance reasonably satisfactory to Buyer Adjustment (the “"Closing Adjustment Statement") on or before the 60th day after the Closing Date Balance Sheet”(the "Delivery Date"). In connection with the preparation of the Closing Adjustment Statement, which AAMAC will have reasonable access to books, records and relevant personnel of Halcyon (including temporary office space at Halcyon's offices) for the purpose of preparing, or observing and participating in the preparation of, the Closing Adjustment Statement. The Closing Adjustment Statement shall be prepared in a manner consistent accordance with the Latest Balance Sheetand shall include a statement same accounting principles, practices, methodologies and policies used in the preparation of the amount of Corporate Taxes Paid, Corporate Taxes Payable, Target Excess Net Debt, Excess Net Debt, Net Debt, Net Working Capital, Net Working Capital Target and the Net Working Capital Percentage (the “Initial Closing Adjustment Statement”) in each case, for the 12 month period ending on the Closing Date or at the Closing Date, which Seller Shareholder Representative estimate will exist as of the close of business on the day immediately preceding the Closing Date determined for accounting and tax purposes as if such date were the Closing Date together with a representation that such amount was determined in accordance with Accounting Principles consistently applied; provided that the Initial Closing Adjustment Statement (and all components thereof, including without limitation, Corporate Taxes Paid, Corporate Taxes Payable, Target Excess Net Debt, Excess Net Debt, Net Debt, Net Working Capital, Net Working Capital Target and the Net Working Capital Percentage shall be reconciled to US GAAP by Buyer, and upon such reconciliation, such US GAAP reconciliation shall be reflected in the Initial Closing Adjustment Statement)Halcyon Financial Statements. (b) As promptly as practicableThe Closing Adjustment Statement will be deemed to be final, but no later than seventy-five binding and conclusive for all purposes on the twentieth Business Day after delivery to the Halcyon Partner Vehicle hereunder unless the Halcyon Partner Vehicle delivers to AAMAC written notice of the Halcyon Partner Vehicle's disagreement (75a "Notice of Disagreement") days prior to such date specifying in reasonable detail the nature of the Halcyon Partner Vehicle's objections to the Closing Adjustment Statement. The Halcyon Partner Vehicle hereby waives the right to assert any objection to the Closing Adjustment Statement that is not asserted in a Notice of Disagreement delivered to AAMAC within twenty Business Days after the Closing Delivery Date, Buyer will cause to be prepared and . If a Notice of Disagreement is delivered to AAMAC within such twenty Business Days, then the Seller Shareholder Representative a certificate setting Closing Adjustment Statement (as adjusted, pursuant to Section 2.3(c) below, if necessary) will be deemed final, binding and conclusive for all purposes on the earlier of (x) the date the Halcyon Partner Vehicle and AAMAC resolve in writing all differences they have with respect to the Closing Adjustment Statement or (y) the date the disputed matters are resolved in writing by the Unaffiliated Firm. In the event that disputed matters are resolved by the Unaffiliated Firm (as set forth Buyer’s calculation of each component below in accordance with the terms hereof), the final Closing Adjustment Statement will consist of the Initial applicable amounts from the Closing Adjustment Statement (or amounts otherwise agreed to in writing by the Halcyon Partner Vehicle and AAMAC) as to items that have not been submitted for resolution to the Unaffiliated Firm, and the amounts determined by the Unaffiliated Firm as to items that were submitted for resolution by the Unaffiliated Firm. (c) During the twenty Business Day period following the delivery of a Notice of Disagreement, AAMAC and the Halcyon Partner Vehicle will seek in good faith to resolve any differences they may have with respect to matters specified in the Notice of Disagreement. If, at the end of such twenty Business Day period, AAMAC and the Halcyon Partner Vehicle have not reached agreement on such matters, AAMAC and the Halcyon Partner Vehicle will jointly engage a single arbitrator from the Unaffiliated Firm to resolve the matters specified in the Notice of Disagreement that remain in dispute with respect to the Closing Adjustment Statement by arbitration in accordance with the procedures set forth in this Section 2.3(c). The single arbitrator selected from the Unaffiliated Firm shall not have performed any work on behalf of AAMAC or the Halcyon Entities nor any of their respective Affiliates in the previous three years. In connection with such engagement, AAMAC and the Halcyon Partner Vehicle agree to use commercially reasonable efforts to cause AAMAC and the Halcyon Partner Vehicle to execute, if requested by the Unaffiliated Firm, a reasonable engagement letter including customary indemnities. Promptly after such engagement of the Unaffiliated Firm, AAMAC or the Halcyon Partner Vehicle will provide the Unaffiliated Firm with a copy of this Agreement, the Closing Adjustment Statement, including and the Notice of Disagreement. The Unaffiliated Firm will have the authority to request in writing such additional written submissions from either AAMAC or the Halcyon Partner Vehicle as it deems appropriate, provided that a copy of any resulting adjustments such submission will be provided to the Purchase Priceother Party at the same time as it is provided to the Unaffiliated Firm. AAMAC and the Halcyon Partner Vehicle will not make any additional submission to the Unaffiliated Firm except pursuant to such a written request by the Unaffiliated Firm. AAMAC and the Halcyon Partner Vehicle will not communicate with the Unaffiliated Firm without providing the Halcyon Partner Vehicle or AAMAC, including reflecting as applicable, a reasonable opportunity to participate in such communication with the reconciliation Unaffiliated Firm (other than with respect to written submissions in response to the written request of the Initial Unaffiliated Firm). The Unaffiliated Firm will have forty-five (45) days to review the documents provided to it pursuant to this Section 2.3(c). Within such forty-five (45) day period, the Unaffiliated Firm will furnish simultaneously to AAMAC and the Halcyon Partner Vehicle its written determination with respect to each of the adjustments in dispute submitted to it for resolution. The Unaffiliated Firm will resolve the differences regarding the Closing Adjustment Statement based solely on the information provided to US GAAP the Unaffiliated Firm by AAMAC and the Halcyon Partner Vehicle pursuant to the terms of this Agreement (“Buyer and not independent review). The Unaffiliated Firm's authority will be limited to resolving disputes with respect to whether the Closing Adjustment Statement was prepared in accordance with Section 2.3 with respect to the individual items on the Closing Adjustment Statement in dispute (it being understood that the Unaffiliated Firm will have no authority to make any adjustments to any financial statements or amounts other than amounts set forth in the Closing Adjustment Statement that are in dispute). In resolving any disputed item, the Unaffiliated Firm may not assign a value to such item greater than the greatest value for such item asserted by AAMAC or the Halcyon Partner Vehicle or less than the smallest value for such item asserted by AAMAC or the Halcyon Partner Vehicle. The decision of the Unaffiliated Firm will be, in the absence of manifest error, for all purposes, conclusive, non appealable, final and binding upon AAMAC and the Halcyon Partner Vehicle. The fees of the Unaffiliated Firm will be borne by AAMAC, on the one hand, and the Halcyon Partner Vehicle, on the other hand, in the same proportion that the dollar amount of disputed items lost by a party bears to the total dollar amount in dispute resolved by the Unaffiliated Firm. (d) If the Closing Adjustment set forth on the Closing Adjustment Statement exceeds the Closing Adjustment set forth on the Estimated Closing Adjustment Statement”) per the terms and conditions of this Agreement, including Section 1.2(b)(i) and the terms herein,. Buyer will make available then AAMAC shall pay to the Seller Shareholder Representative and their accountant all reasonable records and work papers used Halcyon Partner Vehicle such excess in preparing cash. If the calculation Closing Adjustment set forth on the Estimated Closing Adjustment Statement exceeds the Closing Adjustment set forth on the Closing Adjustment Statement, then the Halcyon Partner Vehicle shall pay to AAMAC such excess in cash. Any payment pursuant to this Section 2.3(d) shall be made within three Business Days after the finalization of Buyer the Closing Adjustment Statement. (ce) If the Seller Shareholder Representative disagrees with Buyer’s calculation For purposes of this Section 2.3, all actions to be performed by AAMAC shall be controlled by a majority of the Buyer Closing Adjustment Statement, or any component thereof, delivered pursuant to Section 1.3(b), the Seller Shareholder Representative may, within thirty (30) days after delivery independent directors of the documents referred to in Section 1.3(b), deliver a written notice (the “Objection Notice”) to Buyer disagreeing with such calculation and setting forth the Seller Shareholder Representatives’ calculation Board of such amount (“Shareholder Closing Adjustment Statement”). Any such Objection Notice shall specify those items or amounts as to which the Seller Shareholder Representative disagrees, and the Seller Shareholder Representative shall be deemed to have agreed with all other items and amounts contained in Buyer’s calculation Directors of the Buyer Closing Adjustment Statement delivered pursuant to Section 1.3(b). If the Seller Shareholder Representative does not deliver an Objection Notice within such thirty (30) day period, then the amount of Buyer Closing Adjustment Statement shall be deemed to be finally determined as set forth on Buyer’s calculation thereofAAMAC. (d) If an Objection Notice shall be delivered pursuant to Section 1.3(c), the Seller Shareholder Representative and Buyer shall, during the fifteen (15) days following such delivery, use their reasonable best efforts to reach agreement on the disputed items or amounts in order to determine, as may be required, the amount of the Buyer Closing Adjustment Statement, which amounts shall not be less than the amount thereof shown in Buyer’s calculations delivered pursuant to Section 1.3(b), nor more than the amount thereof shown in the Seller Shareholder Representative calculation delivered pursuant to Section 1.3(c) as set forth in the Shareholder Closing Adjustment Statement. If, during such period, the Seller Shareholder Representative and Buyer are unable to reach such agreement, either the Seller Shareholder Representative or Buyer shall promptly thereafter cause a “big four” independent accounting firm of nationally recognized standing reasonably satisfactory to the Seller Shareholder Representative and Buyer, as the case may be, (who shall not have any material relationship with the Company, the Selling Shareholders or Buyer) (“Independent Accounting Firm”) promptly to review this Agreement and the disputed items or amounts for the purpose of calculating Buyer Closing Adjustment Statement. In making such calculation, such Independent Accountant Firm shall consider only those items or amounts in (i) the Shareholder Closing Adjustment Statement, (ii) the Closing Date Balance Sheet or (iii) Buyer’s calculation of the Buyer Closing Adjustment Statement as to which the Seller Shareholder Representative has disagreed. The Independent Accountant Firm’s determination will be based solely on presentations by the Seller Shareholder Representative and Buyer and such Independent Accountant Firm shall deliver to the Seller Shareholder Representative and Buyer as promptly as practicable (but in any event within thirty (30) days of its retention) a report setting forth such calculation (such date, the “Final Resolution Date”). Such report shall be final and binding upon the Selling Shareholders and Buyer, except in cases of manifest error or willful misconduct. The cost of such review and report shall be borne by the Selling Shareholders if the difference between Final Closing Adjustment Statement (as defined in Section 1.4(c) below) and the Selling Shareholder’s calculation of Shareholder Closing Adjustment Statement delivered pursuant to Section 1.3(c) is greater than the difference between Final Closing Adjustment Statement and Buyer’s calculation of the Buyer Closing Adjustment Statement delivered pursuant to Section 1.3(b), and by Buyer if the first such difference is less than the second such difference. For the avoidance of doubt, the Final Closing Adjustment Statement (and the components thereof) shall reflect and shall comply with US GAAP.