Post-Closing Adjustment Clause Samples
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Post-Closing Adjustment. (a) As soon as reasonably practicable following the Closing Date, and in any event within sixty (60) calendar days thereof, Buyer shall prepare and deliver to the Company Stockholder Representative a schedule setting forth, in reasonable detail, B▇▇▇▇’s good faith calculations of the Adjustment Amount, including calculations of the Closing Indebtedness Amount and the Closing Transaction Expenses, prepared in accordance with GAAP (the “Post-Closing Adjustment Schedule”). If the Company Stockholder Representative shall disagree with any calculations in the Post-Closing Adjustment Schedule, it shall notify Buyer of such disagreement in writing within five (5) Business Days of the date Buyer delivers the Post-Closing Adjustment Schedule (the last day of such period, the “Response Date”), setting forth in reasonable detail the particulars of such disagreement (such notice, a “Dispute Notice”). In the event that the Company Stockholder Representative does not provide a Dispute Notice on or prior to 5:00pm Eastern Time on the Response Date, the Post-Closing Adjustment Schedule as delivered by Buyer, including Buyer’s calculation of the Adjustment Amount and the components thereof, shall be final, binding and conclusive for all purposes hereunder. In the event any Dispute Notice is timely provided, Buyer and the Company shall promptly meet and attempt in good faith to resolve the disputed item(s) and negotiate an agreed-upon determination of the items relating to such dispute, and any such agreed-upon items shall be deemed to have been finally determined for all purposes of this Agreement.
(b) In the event that any disputed items set forth in a Dispute Notice remain unresolved after thirty (30) calendar days of the delivery of the Dispute Notice, such remaining disagreements shall be resolved by an independent accounting or financial consulting firm of recognized national standing to be mutually selected (neither party to unreasonably withhold, condition or delay their selection) by B▇▇▇▇ and the Company Stockholder Representative (such firm, the “Independent Auditor”). Each of Buyer and the Company Stockholder Representative shall promptly provide their respective assertions regarding the Adjustment Amount, the Closing Indebtedness Amount and/or the Closing Transaction Expenses, as applicable, in writing to the Independent Auditor and to each other as promptly as possible after the engagement of the Independent Auditor. The Independent Auditor shall be instructed...
Post-Closing Adjustment. (a) Within one hundred twenty (120) days after the Closing Date, Purchaser will prepare and deliver to the Company Representative (i) an unaudited consolidated balance sheet of the Company as of the Adjustment Time, prepared in accordance with the Accounting Principles (the “Closing Balance Sheet”), and (ii) a statement, prepared in good faith and in accordance with the Accounting Principles and the applicable definitions contained in this Agreement, setting forth Purchaser’s good faith calculations of Closing Indebtedness, Closing Net Working Capital, Transaction Expenses, Closing Cash, the Deferred Cash Amount and the resulting Cash Adjustment Amount and the resulting calculation of the final Merger Consideration (together with the Closing Balance Sheet, the “Closing Statement”), together with reasonable supporting documentation for the calculations and amounts contained in the Closing Statement. If Purchaser fails to deliver the Closing Statement in accordance with this Section 2.14(a) within one hundred twenty (120) days after the Closing Date, then Purchaser will be deemed to have irrevocably accepted the Company’s calculation of Estimated Closing Indebtedness, Estimated Closing Net Working Capital, Estimated Transaction Expenses, Cash Adjustment Amount and the resulting Estimated Merger Consideration, in which case, all such amounts will be final and binding on the parties for purposes of this Section 2.14. (b) Within forty-five (45) days after delivery of the Closing Statement, the Company Representative may dispute Purchaser’s calculation of Closing Indebtedness, Closing Net Working Capital, Transaction Expenses or the resulting final Merger Consideration by delivering to Purchaser a written notice (a “Dispute Notice”) setting forth in reasonable detail the basis for each such disputed item. The Company Representative may not in its Dispute Notice change the calculation of any line item included in the calculation of Estimated Closing Net Working Capital (as set forth in the Estimated Closing Statement) if such change would, taken on an individual basis, have the result of increasing the Estimated Merger Consideration compared to what was reflected in the Estimated Closing Statement, other than to respond to changes in such line items set out in the Closing Statement. Purchaser will (and will cause the Surviving Company to) furnish to the Company Representative and
Post-Closing Adjustment. (a) At least three (3) Business Days prior the Closing Date, the Seller Parties shall provide to the Buyer a preliminary determination of the projected Market Value of the Acceptable Financial Assets as of the Closing Date.
(b) Within five (5) Business Days after the Closing Date, the Seller Parties shall provide to the Buyer a final determination of the Market Value of the Acceptable Financial Assets as of the Closing Date (“Final Fair Market Value”). If the Final Fair Market Value exceeds $5,000,000, then the Buyer shall pay to the Seller Parties an amount equal to such excess, in immediately available funds by wire transfer to a bank account designated in writing by the Seller Parties. If the Final Fair Market Value is less than $5,000,000, then the Seller Parties shall pay to the Buyer an amount equal to such shortfall, in immediately available funds by wire transfer to a bank account designated in writing by the Buyer. Any payment due pursuant to this Section 2.5(b) shall be made within ten (10) Business Days after the Closing Date or, if a Dispute Notice is filed pursuant to Section 2.5(c), within five (5) Business Days after the resolution of the disagreement described in such Dispute Notice.
(c) In the event that the Buyer disagrees with the Final Fair Market Value of the Acceptable Financial Assets, the Buyer shall provide notice of such disagreement and the nature or reason therefor to the Seller Parties no later than three (3) Business Days after the delivery to the Buyer of such final determination (the “Dispute Notice,” and the date of its delivery, the “Dispute Notice Date”). The Seller Parties and the Buyer shall use their best efforts to resolve such disagreement by negotiation for five (5) Business Days following the Dispute Notice Date, and if no resolution is reached within such period, the dispute shall be jointly submitted by the Buyer and the Seller Parties to the Independent Accounting Firm on the next Business Day following the expiration of such period. The Independent Accounting Firm shall make its determination of the Fair Market Value of the Acceptable Financial Assets as of the Closing Date within fifteen (15) Business Days after submission thereof, which determination shall be binding and conclusive on all of the Parties hereto. Each of the Parties shall cooperate fully in assisting the Independent Accounting Firm, as it may require or request, to reach such determination and shall take all actions necessary to expedite and to...
Post-Closing Adjustment. The “Post-Closing Adjustment” shall be equal to (a) (i) the amount of Working Capital set forth in the Final Closing Statement minus (ii) the amount of Working Capital set forth in the Estimated Closing Statement, minus (b) (i) the amount of the Capex Adjustment set forth in the Final Closing Statement, minus (ii) the amount of the Estimated Capex Adjustment set forth in the Estimated Closing Statement, plus (c) (i) the amount of Net Cash set forth in the Final Closing Statement minus (ii) the amount of Net Cash set forth in the Estimated Closing Statement, minus (d) (i) the amount of the Timing Adjustment set forth in the Final Closing Statement minus (ii) the amount of the Timing Adjustment set forth in the Estimated Closing Statement. For the avoidance of doubt, any of the amounts set forth in the preceding sentence may be either a positive or a negative amount. If the Post-Closing Adjustment is a positive amount, then Purchaser shall pay such positive amount in cash to Seller (or one or more Affiliates designated by Seller). If the Post-Closing Adjustment is a negative amount, then Seller (or an Affiliate designated by Seller) shall pay in cash to Purchaser the absolute value of such negative amount. The Closing Purchase Price, as adjusted by the Post-Closing Adjustment, shall be the “Final Purchase Price.” Any such payment pursuant to this Section 2.7 shall be made by wire transfer of immediately available funds within five (5) Business Days after the determination of the Final Closing Statement to an account designated in writing by the party entitled to the payment within three (3) Business Days after the determination of the Final Closing Statement.
Post-Closing Adjustment. (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. (1) At least three (3) business days before the Closing, the Sellers shall prepare and deliver to Buyer a statement setting forth its good faith estimate of Closing Working Capital (the “Estimated Closing Working Capital”), which statement shall contain an estimated balance sheet of the Sellers as of the Closing Date (without giving effect to the transactions contemplated herein) and a calculation of Estimated Closing Working Capital calculated in accordance with GAAP (the “Estimated Closing Working Capital Statement”).
(2) Within thirty (30) days after the Closing Date, Sellers shall deliver to Buyer the Converted Financial Statements in accordance with Section 4.11 (“the Converted Financials Date”).
(3) Within sixty (60) days after the Converted Financials Date, Buyer shall prepare and deliver to Sellers a statement setting forth Buyer’s calculation of Closing Working Capital, which statement shall contain an opening balance sheet of the Sellers as of the Closing Date (without giving effect to the transactions contemplated herein) and a calculation of Closing Working Capital calculated in accordance with GAAP (the “Closing Working Capital Statement”).
(4) The post-closing adjustment shall be an amount equal to the Closing Working Capital set forth on the Closing Working Capital Statement minus the Estimated Closing Working Capital (the “Post-Closing Adjustment”). If the Post-Closing Adjustment is a positive number, Buyer shall pay to Sellers an amount equal to the Post-Closing Adjustment. If the Post-Closing Adjustment is a negative number, Sellers shall pay to Buyer an amount equal to the Post-Closing Adjustment.
(5) After receipt of the Closing Working Capital Statement, Sellers shall have thirty (30) days (the “Review Period”) to review the Closing Working Capital Statement. During the Review Period, Sellers and Sellers' accountants shall have full access to the personnel of, and work papers prepared by, Buyer and/or Buyer's accountants to the extent that they relate to the Closing Working Capital Statement and to such historical financial information (to the extent in Buyer's possession) relating to the Closing Working Capital Statement as Sellers may reasonably request for the purpose of reviewing the Closing Working Capital Statement and to prepare a Statement of Objections (defined below); provided, that such access shall be in a manner that does not interfere with the normal business operations of Buyer.
(6) On or prior to the last day of the Rev...
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. In the event that, during the period commencing from the Closing Date and ending on the second anniversary of the Closing Date, the Parent or the Surviving Corporation incurs any Loss (as defined below) with respect to, in connection with, or arising from any Parent Liabilities (as defined below), then promptly following the filing by the Parent with the Securities and Exchange Commission (the “SEC”) of a quarterly report relating to the most recent completed quarter for which such determination has been made, the Parent shall issue to the Company Stockholders and/or their designees such number of shares of Parent Common Stock as would result from dividing (x) the whole dollar amount representing such Losses by (y) the PPO Price, rounded to the nearest whole number (with 0.5 shares rounded upwards to the nearest whole number). The limit on the aggregate number of shares of Parent Common Stock issuable under this Section 1.16 shall be 3,100,000 shares. As used in this Section 1.16: (a) “Loss” shall mean any and all costs and expenses, including reasonable attorneys’ fees, court costs, reasonable accountants’ fees, and damages and losses, net of any insurance proceeds actually received by the Party suffering the Loss with respect thereto; (b) “Claims” shall include, but are not limited to, any claim, notice, suit, action, investigation, other proceedings (whether actual or threatened); and (c) “Parent Liabilities” shall mean all Claims against and liabilities, obligations or indebtedness of any nature whatsoever of Split-Off Subsidiary, whenever accruing, and of the Parent and the Acquisition Subsidiary, accruing on or before the Closing Date (whether primary, secondary, direct, indirect, liquidated, unliquidated or contingent, matured or unmatured), including, but not limited to (i) any litigation threatened, pending or for which a basis exists against the Parent or any Parent Subsidiary (as defined in this Agreement); (ii) any and all outstanding debts owed by the Parent or any Parent Subsidiary; (iii) any and all internal or employee related disputes, arbitrations or administrative proceedings threatened, pending or otherwise outstanding, (iv) any and all liens, foreclosures, settlements, or other threatened, pending or otherwise outstanding financial, legal or similar obligations of the Parent or any Parent Subsidiary, (v) any and all Taxes for which Parent or any of its direct or indirect assets may be liable or subject, for any taxable period (or porti...
Post-Closing Adjustment. (a) The Final Purchase Price shall be calculated based upon the final calculation of the Closing Net Assets (as determined pursuant to Section 2.07 below). If the Closing Net Assets, as determined as provided in Section 2.07 below: (i) exceeds the Estimated Net Assets plus or minus the Net Cash Balance, then the Final Purchase Price shall be equal to: (A) the Estimated Purchase Price plus (B) the amount by which the Closing Net Assets exceeds the Estimated Net Assets plus or minus the Net Cash Balance; or (ii) is less than the Estimated Net Assets plus or minus the Net Cash Balance, then the Final Purchase Price shall be equal to: (A) the Estimated Purchase Price minus (B) the amount by which the Closing Net Assets is less than the Estimated Net Assets plus or minus the Net Cash Balance.
(b) If the Final Purchase Price as calculated pursuant to the provisions of Section 2.06(a) above exceeds the Estimated Purchase Price, the amount by which the Final Purchase Price exceeds the Estimated Purchase Price shall be paid by Buyer to the Seller. If the Final Purchase Price as calculated pursuant to Section 2.06(a) above is less than the Estimated Purchase Price, the amount by which the Estimated Purchase Price exceeds the Final Purchase Price shall be paid by the Seller to the Buyer.
(c) All payments required to be made pursuant to Section 2.06(b) above shall be paid to the party entitled to receive the same in cash or immediately available funds promptly, but in no event later than ten (10) business days following the determination of the Closing Net Assets as contemplated in Section 2.07 below, by delivery to such account as the party entitled to payment shall specify in writing, of an amount equal to the sum of any such payment together with interest thereon from, and including the Closing Date to, but excluding, the date of such payment at a variable rate per annum equal to the rate announced publicly by Bank of America National Trust and Savings Association from time to time as its "base rate". The date on which such payment shall occur is referred to herein as the "Supplemental Closing".
Post-Closing Adjustment. The “Post-Closing Adjustment” may be either a positive or negative amount, and shall be equal to the sum of (a) (i) the amount of Working Capital set forth in the Final Closing Statement, minus (ii) the amount of Working Capital set forth in the Estimated Closing Statement, plus (b) (i) the amount of Net Indebtedness set forth in the Estimated Closing Statement, minus (ii) the amount of Net Indebtedness set forth in the Final Closing Statement. If the Post-Closing Adjustment is a positive amount, then Purchaser shall pay in cash to Parent (or one or more Affiliates designated by Parent) the absolute value of the amount of the Post-Closing Adjustment. If the Post-Closing Adjustment is a negative amount, then Parent (or an Affiliate designated by Parent) shall pay in cash to Purchaser the absolute value of the amount of the Post-Closing Adjustment. The Closing Purchase Price, as adjusted by the Post-Closing Adjustment, shall be the “Final Purchase Price.” Any such payment pursuant to this Section 2.7 shall be made by wire transfer of immediately available funds within five (5) Business Days after the determination of the Final Closing Statement to an account designated in writing by the party entitled to the payment within three (3) Business Days after the determination of the Final Closing Statement.