Post-Closing Adjustment Clause Samples
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Post-Closing Adjustment. (a) No later than forty-five (45) days following the Closing Date, Aspen shall deliver to the Reinsurer a detailed statement in the same form as the Closing Statement (the “Final Closing Statement”) setting forth Aspen’s good faith calculation of (i) the New Reinsurance Premium (including the New Reinsurance Premium Accrued Interest, the Roll-forward Amount and the ULAE Reimbursement Amount) and (ii) the Initial Required Collateral Amount, in each case, as of the Closing Date, together with all accounting, actuarial and other data and documentation reasonably necessary for the Reinsurer to review ▇▇▇▇▇’s proposed final calculations of such amounts.
(b) Upon receipt of the Final Closing Statement, the Reinsurer and its authorized Representatives will be given reasonable access to all accounting, actuarial and other data and documentation related to the preparation of the Final Closing Statement for the purpose of, and to the extent reasonably necessary for, verifying the Final Closing Statement; provided, that no independent accountants or independent actuaries of Aspen shall be required to make any work papers available to the Reinsurer unless the Reinsurer has signed a customary agreement relating to such access to work papers in form and substance reasonably acceptable to such independent accountants or independent actuaries, as applicable. Within forty-five (45) days of the Reinsurer’s receipt of the Final Closing Statement, the Reinsurer may deliver written notice (the “True-Up Dispute Notice”) to Aspen of any objections, specifying in reasonable detail any contested amounts and the basis therefor, which the Reinsurer may have to the Final Closing Statement. The failure of the Reinsurer to deliver such True-Up Dispute Notice within the prescribed time period will constitute the Reinsurer’s acceptance as final of the Final Closing Statement as determined by ▇▇▇▇▇. Any amounts not disputed in the True-Up Dispute Notice (if one is delivered) shall be deemed to be accepted by the Reinsurer as final, except to the extent that such amounts are affected by any disputed amounts.
(c) If Aspen and the Reinsurer are unable to resolve all disagreements with respect to the Final Closing Statement within thirty (30) days following ▇▇▇▇▇’s receipt of a True-Up Dispute Notice (the “True-up Dispute Cooling-Off Period”), the items and amounts in dispute shall be submitted for review to the Independent Actuary for final determination within forty-five (45) days after suc...
Post-Closing Adjustment. The Estimated Purchase Price shall be adjusted following the last Shanghai Subsidiaries Closing Date to occur as provided in this Section 2.10:
(a) As promptly as practicable, but in any event within sixty (60) Business Days after the last Shanghai Subsidiaries Closing Date, the Purchaser shall prepare and deliver to the Seller: (i) in accordance with the Adjustment Principles, balance sheets for the Company Subsidiaries as of the Cut-Off Date (collectively, the “Cut-Off Date Balance Sheet ”); and (ii) a statement that sets forth: (A) the Purchaser’s good faith calculation, of the amount of the Inter-Company Trade Receivable, the Inter-Company Trade Payable, the Accounts Payable, the Inventory, the Trading Companies Accounts Receivable, the Cut-Off Date Indebtedness, and Cash as of the Cut-Off Date; and (B) the resulting calculation of the Estimated Purchase Price in accordance with Section 2.2, Section 2.5 and Section 2.7 (collectively, the items in the foregoing clause (A) and clause (B), the “Post-Closing Statement”), in each case including reasonable supporting documentation used by the Purchaser, in the preparation of the Post-Closing Statement, including the Cut-Off Date Balance Sheet, and each component of the Estimated Purchase Price, the Days Payable Outstanding and the Days Inventory Outstanding, as applicable; provided, however, that, notwithstanding anything else contained herein, (A) the Estimated Purchase Price shall not be adjusted for any changes in the amount of the Accounts Payable, unless the related Days Payable Outstanding falls outside of the Target Accounts Payable Range; (B) the Estimated Purchase Price shall not be adjusted for any changes in the amount of Inventory, unless the related Days Inventory Outstanding falls outside of the Target Inventory Range; and (C) the Estimated Purchase Price shall not be adjusted for any changes in Trading Companies Accounts Receivable other than as set forth in Section 2.10(e). The Post-Closing Statement, and the components thereof, shall be in the form attached hereto as Exhibit D and shall be prepared in good faith in accordance with the terms of this Agreement, including the Adjustment Principles, Illustrative Calculation of Accounts Payable and the Illustrative Calculation of Inventory and the books and records of the Company Subsidiaries.
(b) Following receipt of the Cut-Off Date Balance Sheet and the Post-Closing Statement, the Seller shall have forty-five (45) calendar days (the “Review Pe...
Post-Closing Adjustment. The Estimated Closing Purchase Price shall be subject to adjustment following the Closing as follows:
(a) As soon as reasonably practicable, and in any event within sixty (60) days after the Closing Date, Central Can shall deliver to the Seller Representative a written statement (the “Initial Statement”) setting forth its calculations of each of the Closing Cash Amount, the Closing Indebtedness and the Closing Net Working Capital, as determined by reference to the relevant provisions of this Agreement, and on the basis of the foregoing, its calculation of the Final Purchase Price.
(b) Following the receipt by the Seller Representative of the Initial Statement, Central Can shall permit the Seller Representative and its representatives to have access during normal business hours to the books, records and other documents pertaining to or used in connection with preparation of the Initial Statement; provided, however, that such access does not unreasonably disrupt the normal operations of the Company and such investigation is conducted at the expense of the Seller Representative (on behalf of the Sellers); provided further, that in the event such access is not granted to the Seller Representative and its representatives, the Seller Representative may, upon written notice to Central Can, extend the Objection Period (as defined below) for each day during which such access was not granted. Subject to the execution and delivery of any non-reliance or similar letter requested by the Company, the Seller Representative and its accountants may make reasonable inquiries of Central Can, the Company and their respective employees, accountants and representatives during normal business hours regarding questions concerning the Initial Statement arising in the course of their review thereof, and Central Can and the Company shall use their commercially reasonable efforts to cause any such employees, accountants and representatives to cooperate with and respond to such inquiries. On or prior to the thirtieth (30th) day after the Seller Representative’s receipt of the Initial Statement (as such may be extended by the Seller Representative pursuant to the first sentence of this Section 1.4(b), the “Objection Period”), the Seller Representative may give Central Can a written notice stating in reasonable detail any objections (an “Objection Notice”) that it may have to the calculations of Closing Cash Amount, Closing Indebtedness or Closing Net Working Capital; provided that the ...
Post-Closing Adjustment. In the event that, during the period commencing from the Closing Date and ending on the second anniversary of the Closing Date, the Parent or the Surviving Corporation incurs any Loss (as defined below) with respect to, in connection with, or arising from any Parent Liabilities (as defined below), then promptly following the filing by the Parent with the Securities and Exchange Commission (the “SEC”) of a quarterly report relating to the most recent completed quarter for which such determination has been made, the Parent shall issue to the Company Stockholders and/or their designees such number of shares of Parent Common Stock as would result from dividing (x) the whole dollar amount representing such Losses by (y) the PPO Price, rounded to the nearest whole number (with 0.5 shares rounded upwards to the nearest whole number). The limit on the aggregate number of shares of Parent Common Stock issuable under this Section 1.16 shall be 3,100,000 shares. As used in this Section 1.16: (a) “Loss” shall mean any and all costs and expenses, including reasonable attorneys’ fees, court costs, reasonable accountants’ fees, and damages and losses, net of any insurance proceeds actually received by the Party suffering the Loss with respect thereto; (b) “Claims” shall include, but are not limited to, any claim, notice, suit, action, investigation, other proceedings (whether actual or threatened); and (c) “Parent Liabilities” shall mean all Claims against and liabilities, obligations or indebtedness of any nature whatsoever of Split-Off Subsidiary, whenever accruing, and of the Parent and the Acquisition Subsidiary, accruing on or before the Closing Date (whether primary, secondary, direct, indirect, liquidated, unliquidated or contingent, matured or unmatured), including, but not limited to (i) any litigation threatened, pending or for which a basis exists against the Parent or any Parent Subsidiary (as defined in this Agreement); (ii) any and all outstanding debts owed by the Parent or any Parent Subsidiary; (iii) any and all internal or employee related disputes, arbitrations or administrative proceedings threatened, pending or otherwise outstanding, (iv) any and all liens, foreclosures, settlements, or other threatened, pending or otherwise outstanding financial, legal or similar obligations of the Parent or any Parent Subsidiary, (v) any and all Taxes for which Parent or any of its direct or indirect assets may be liable or subject, for any taxable period (or porti...
Post-Closing Adjustment. (i) As promptly as reasonably practicable, but in no event later than one hundred twenty (120) calendar days following the Closing Date, Parent shall cause to be prepared in accordance with the Specified Accounting Principles and delivered to the Shareholder Representative an unaudited consolidated balance sheet of the Company as of the close of business on the day immediately prior to the Closing Date (the “Closing Balance Sheet”), together with a statement (the “Parent Closing Statement”) setting forth in reasonable detail Parent’s calculation of Closing Working Capital.
(ii) From and after the delivery of the Closing Balance Sheet and the Parent Closing Statement, Parent shall provide the Shareholder Representative and any accountants or advisors retained by the Shareholder Representative with reasonable access during normal business hours to the books and records of the Surviving Corporation for the purposes of: (A) enabling the Shareholder Representative and its accountants and advisors to calculate, and to review Parent’s calculation of Closing Working Capital; and (B) identifying any dispute related to the calculation of Closing Working Capital set forth in the Parent Closing Statement.
(iii) If the Shareholder Representative disputes the calculation of Closing Working Capital set forth in the Parent Closing Statement, then the Shareholder Representative shall deliver a written notice (a “Dispute Notice”) to Parent and the Escrow Agent during the thirty (30)-day period commencing upon receipt by the Shareholder Representative of the Closing Balance Sheet and the Parent Closing Statement (the “Review Period”). The Dispute Notice shall set forth, in reasonable detail, the principal basis for the dispute of such calculation.
(iv) If the Shareholder Representative does not deliver a Dispute Notice to Parent prior to the expiration of the Review Period, Parent’s calculation of Closing Working Capital set forth in the Parent Closing Statement shall be deemed final and binding on Parent, the Shareholder Representative and Equityholders for all purposes of this Agreement.
(v) If the Shareholder Representative delivers a Dispute Notice to Parent prior to the expiration of the Review Period, then the Shareholder Representative and Parent shall use commercially reasonable efforts to reach agreement on the calculation of Closing Working Capital. If the Shareholder Representative and Parent are unable to reach agreement on the calculation of Closing Working Capi...
Post-Closing Adjustment. (i) If the DBC Net Book Value (calculated using the Closing Date Balance Sheet) is less than the Minimum DBC Net Book Value, then Purchasers shall be entitled to receive the amount by which such DBC Net Book Value was less than the amount of the Minimum DBC Net Book Value (“Purchaser Post-Closing Net Book Value Adjustment”). If the DBC Net Book Value (calculated using the Closing Date Balance Sheet) is greater than the Minimum DBC Net Book Value, then Sellers shall be entitled to receive the amount by which such DBC Net Book Value was greater than the amount of the Minimum DBC Net Book Value (“Seller Post-Closing Net Book Value Adjustment”).
(ii) If the Statutory Surplus Amount is less than the Minimum Statutory Surplus Amount (calculated using the Closing Date Balance Sheet), then Purchasers shall be entitled to receive the amount by which the Statutory Surplus Amount was less than the amount of the Minimum Statutory Surplus Amount (“Purchaser Post- Closing Statutory Surplus Adjustment”). If the Statutory Surplus Amount is greater than the Minimum Statutory Surplus Amount (calculated using the Closing Date Balance Sheet), then Sellers shall be entitled to receive the amount by which the Statutory Surplus Amount was greater than the amount of the Minimum Statutory Surplus Amount (“Seller Post-Closing Statutory Surplus Adjustment”).
(iii) Any Post-Closing Adjustment shall be due and payable in cash within three (3) Business Days of the date on which the Closing Date Balance Sheet (together with the DBC Net Book Value and the Statutory Surplus Amount) is either accepted or otherwise finally determined pursuant to this Section 2.8 (“Post-Closing Adjustment Payment”). Any Post-Closing Adjustment attributable to NORDIC shall be adjusted by a factor of 0.75 to account for the Moda’s 75% ownership of NORDIC; provided, if Moda’s ownership of NORDIC changes prior to Closing then such adjustment factor shall be revised to reflect such ownership.
(iv) If Purchasers are owed a Post-Closing Adjustment Payment, then at Purchaser Representative’s sole election and upon Purchaser Representative sending a request to Seller Representative, Purchaser Representative and Seller Representative shall promptly deliver to Escrow Agent joint written instructions to the Escrow Agent instructing the Escrow Agent to disburse to Purchasers the full amount or any portion of such Post-Closing Adjustment Payment from the Standard Escrow Amount (with any balance to be paid in cash pursuant...
Post-Closing Adjustment. (a) After the Closing Date, Sellers and Buyer shall cooperate and provide each other access to their or their Affiliates’ respective books, records and employees to the extent related to the ownership or operation of the Acquired Companies, and Buyer shall use its commercially reasonable efforts to provide Sellers access to the books, records and employees related to each Coal Participant Project, all as reasonably requested in connection with the matters addressed in this Section 2.6. Within ninety (90) days after the Closing Date (the “Determination Period”), Sellers shall determine the Net Working Capital Difference and the CapEx Difference as of the Closing and shall provide Buyer with written notice of such determination, along with reasonable supporting information and calculations (the “Sellers Determination”); provided that in the event Buyer has not provided Sellers with access to any information required to calculate the Sellers Determination prior to the expiration of the Determination Period pursuant to this Section 2.6(a), the end of the Determination Period shall be tolled until Buyer is able to obtain and provide Sellers with such required information.
(b) If Buyer objects to Sellers Determination, then it shall provide Sellers written notice thereof within thirty (30) days after receiving Sellers Determination. If the Parties are unable to agree on the Net Working Capital Difference or the CapEx Difference, as applicable, as of the Closing, within thirty (30) days of Sellers’ receipt of such objection (as such time period may be extended by mutual agreement of the Parties), the Parties shall refer such dispute to a nationally-recognized public accounting firm that is independent with respect to each of the Parties (within the meaning of Rule 2-01 under Securities and Exchange Commission Regulation S-X) or, if that firm declines to act as provided in this Section 2.6(b), another firm of independent public accountants mutually acceptable to Buyer and Sellers, which firm shall make a final and binding determination as to all matters in dispute (and only such matters) on a timely basis and promptly shall notify the Parties in writing of its resolution. Such firm shall not have the power to modify or amend any term or provision of this Agreement. Sellers, on the one hand, and Buyer, on the other hand, shall each bear and pay one-half (1/2) of the fees and other costs charged by such accounting firm. If Buyer does not object to Sellers Determinat...
Post-Closing Adjustment. (a) No more than three (3) Business Days prior to the Closing Date and no more than two (2) Business Days after the Closing Date, an employee of Seller and one or more representatives or employees of Buyer shall calculate the quantity of sulfur, rock, ammonia and finished goods included in the Inventory located at the Facilities based upon a physical examination thereof. As soon as practicable (but in no event more than five (5) Business Days) following such physical examination, such employee of Seller and a representative or employee of Buyer shall summarize such Inventory calculations on a report (the “Inventory Report”) and deliver the Inventory Report to Buyer and Seller. The Inventory Report shall be executed and delivered by each of Buyer and Seller to the other party, and the quantity of such Inventory set forth thereon, absent manifest error, shall be final and binding on Buyer and Seller for purposes of calculating Net Working Capital on the Closing Date under this Section 3.5. The value of the Inventory set forth on the Inventory Report shall be determined in accordance with the accounting methods, practices, policies, procedures and estimation methods used to prepare the Balance Sheet.
(b) As soon as reasonably practicable, but in no event later than ninety (90) days after the Closing Date, Buyer shall prepare and cause to be delivered to Seller a certificate of the Chief Financial Officer of Buyer certifying (i) its good faith calculation of the Purchase Price, setting forth, in reasonable detail, a good faith calculation of each of the adjustments set forth in Section 3.2 (the “Final Purchase Price”) and (ii) a balance sheet for the Business as of immediately prior to the Closing prepared on a basis consistent with the accounting methods, practices, policies, procedures and estimation methods used to prepare the Balance Sheet and including all of the entries contained in Schedule 3.4(a) (the “Final Balance Sheet”).
(i) If the Estimated Purchase Price is greater than the Final Purchase Price, the Purchase Price shall be adjusted downward dollar-for-dollar and Seller shall pay to Buyer the amount of such reduction, and (ii) if the Estimated Purchase Price is less than the Final Purchase Price, the Purchase Price shall be adjusted upward dollar-for-dollar and Buyer shall pay to Seller the amount of such increase (each a “Post-Closing Adjustment Amount”). Any Post-Closing Adjustment Amount shall be paid by wire transfer of immediately available f...
Post-Closing Adjustment. (a) Within ninety (90) days after the Closing Date, Buyer shall prepare and deliver to Parent a final closing statement (the “Final Closing Statement”) as of 11:59 P.M. on the date immediately prior to the Closing Date, reflecting Buyer’s calculation of:
(i) the Net Working Capital, Closing Date Cash and Closing Date Indebtedness;
(ii) the difference between the Preliminary Cash Purchase Price and the cash Purchase Price shown on the Final Closing Statement (determined in accordance with Section 2.02 by substituting the Final Net Working Capital and Closing Date Cash and Closing Date Indebtedness amounts shown on the Final Closing Statement for those previously appearing on the Preliminary Closing Statement); and
(iii) the resulting final cash Purchase Price calculated in accordance with Section 2.02 (the “Final Cash Purchase Price”).
(b) The Final Closing Statement shall be prepared in good faith in accordance with the Calculation Principles. Buyer shall not be permitted to introduce different accounting principles, procedures, policies, practices, estimates, judgments or methodologies in the preparation of the Final Closing Statement or the determination of Net Working Capital, Closing Date Cash or Closing Date Indebtedness from the Calculation Principles. The Sellers and Buyer agree that no objection or challenge will be made with respect to the Target Net Working Capital.
(c) Parent may dispute Buyer’s calculation of the Final Closing Statement (or any element thereof) by notifying Buyer in writing, setting forth in reasonable detail the particulars of such disagreement (the “Notice of Objection”), within forty-five (45) days after Parent’s receipt of the Final Closing Statement. Any item or amount as to which no dispute is raised in the Notice of Objection will be final, conclusive and binding on the Parties for all purposes hereunder, unless such item or amount is by its nature adjusted in connection with the matters raised in the Notice of Objection. In the event that Parent does not deliver a Notice of Objection to Buyer within such forty-five (45) day period, Parent shall be deemed to have accepted Buyer’s calculation of the Final Cash Purchase Price set forth in the Final Closing Statement. In connection with the preparation of the Final Closing Statement and the Notice of Objection, each party shall permit the other party and its respective Representatives to have reasonable access to the books, records and other documents (including work papers...
Post-Closing Adjustment. (i) Subject to the dispute resolution provisions of Section 2.06(e) below, the "Post-Closing Adjustment" shall be an amount equal to the Closing Inventory Value minus the Estimated Inventory Value. If the Post-Closing Adjustment is a positive number, Buyer shall pay to Seller an amount equal to the Post-Closing Adjustment. If the Post-Closing Adjustment is a negative number, Seller shall waive part of the Post-Closing Forecast Inventory Payment due from Buyer by an amount equal to the Post-Closing Adjustment, and, in the event the Post-Closing Adjustment exceeds the amount waived by Seller in relation to the Post-Closing Forecast Inventory Payment, pay to Buyer and amount equal to the difference between the amount waived in relation to the Post-Closing Forecast Inventory Payment and the amount of the Post-Closing Adjustment.
(ii) Except as otherwise provided herein, any payment of the Post-Closing Adjustment, together with interest calculated as set forth below, shall (A) be due within five (5) Business Days of Seller’s acceptance of the Closing Inventory Value Statement or, if there are Disputed Amounts (defined below), then within five (5) Business Days of the resolution described in Section 2.06(e)(ii) or Section 2.06(e)(v) below; and (B) be paid by wire transfer of immediately available funds to such account as is directed by Seller or Buyer, as the case may be. The amount of any Post-Closing Adjustment shall bear interest from and including the Closing Date to and including the date of payment at a rate per annum equal to the prime rate published in the Wall Street Journal, plus 5%. Such interest shall be calculated daily on the basis of a 365 day year and the actual number of days elapsed.