Post-Closing Adjustment Clause Samples
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Post-Closing Adjustment. (a) Not more than twenty (20) days after the Closing Date, Purchasers shall deliver to Sellers a certificate of an authorized officer setting forth Purchasers’ calculation, as of the Closing Date, of the Net Working Capital (the “Proposed Closing Net Working Capital”). Such statement shall include separate line items, as of the Closing, for (i) cash and cash equivalents included in the Purchased Assets, (ii) the amount of outstanding accounts receivable included in the Purchased Assets, and (iii) the amount of Assumed Liabilities described in Section 2.7(a).
(b) If within ten (10) days following delivery of the Proposed Closing Net Working Capital calculation Sellers have not given Purchasers written notice of their objection to the Proposed Closing Net Working Capital calculation (which notice shall state the basis of Sellers’ objection(s)), then the Proposed Closing Net Working Capital calculated by Purchasers (or any portion of the calculation to which Sellers do not object) shall constitute the “Final Closing Net Working Capital,” shall be binding and conclusive on the Parties.
(c) If Sellers give Purchasers timely notice of objection, and if Sellers and Purchasers fail to resolve the issues outstanding with respect to the Proposed Closing Net Working Capital within ten (10) days of Purchasers’ receipt of Sellers’ objection notice, Sellers and Purchasers shall submit the issues remaining in dispute to the Houston office of Deloitte LLP (the “Independent Accountants”) for resolution. If for any reason the Houston office of Deloitte LLP is unwilling to act as the Independent Accountants, the Independent Accounts shall be such other recognized national or regional independent accounting firm mutually acceptable to Purchasers and Sellers.
(d) If issues are submitted to the Independent Accountants for resolution, (1) Seller and Purchasers shall furnish or cause to be furnished to the Independent Accountants such work papers and other documents and information relating to the disputed issues as the Independent Accountants may request and are available to that Party or its agents and shall be afforded the opportunity to present to the Independent Accountants any material relating to the disputed issues and to discuss the issues with the Independent Accountants; and (2) the determination by the Independent Accountants, as set forth in a notice to be delivered to both Seller and Purchasers within twenty (20) days of the submission to the Independent Accountants...
Post-Closing Adjustment. (a) Within ninety (90) calendar days after the Closing Date, Buyer shall prepare and deliver to Seller a consolidated balance sheet of the Target Companies as of 11:59 p.m. on the day immediately preceding the Closing Date, prepared in accordance with GAAP and on a basis consistent with the GAAP conventions used for the preparation of the Audited Financial Statements; provided that such balance sheet shall reflect the Transaction Costs accrued as of the Closing and shall include each of the items set forth in the definition of Closing Working Capital (whether or not otherwise required to be included on a balance sheet prepared in accordance with GAAP), but otherwise shall be calculated without giving effect to the consummation of the Contemplated Transactions and shall exclude any Indebtedness incurred under financing or refinancing arrangements entered into at any time by any of the Buyer Parties or any other transaction entered into by any of the Buyer Parties in connection with the Contemplated Transactions (including with respect to any of the Target Companies) (such balance sheet, the “Proposed Final Balance Sheet”). The Proposed Final Balance Sheet shall also include schedules setting forth the calculation of (i) Closing Working Capital as of 11:59 p.m. on the day immediately preceding the Closing Date as reflected in the Proposed Final Balance Sheet (the “Proposed Final Closing Working Capital”), (ii) Cash of the Target Companies as of 11:59 p.m. on the day immediately preceding the Closing Date as reflected in the Proposed Final Balance Sheet (the “Proposed Final Closing Cash”) and (iii) the Balance Sheet Indebtedness of the Target Companies as of 11:59 p.m. on the day immediately preceding the Closing Date as reflected in the Proposed Final Balance Sheet (the “Proposed Final Balance Sheet Indebtedness”). The Proposed Final Closing Balance Sheet, together with such schedules, is referred to herein as the “Proposed Final Closing Statement”.
(b) Seller will have forty-five (45) calendar days following delivery of the Proposed Final Closing Statement during which to notify Buyer in writing (the “Notice of Objection”) of any objections to the preparation of the Proposed Final Balance Sheet or the calculation of the Proposed Final Closing Working Capital, Proposed Final Closing Cash, and Proposed Final Balance Sheet Indebtedness, in each case, setting forth the basis of its objections in such detail as will permit Buyer to understand such objections, an...
Post-Closing Adjustment. (a) Purchaser shall propose any changes to the Estimated Commercialization Agreement Payment Value set forth in the Preliminary Commercialization Agreement Payment Schedule by delivering to Seller a final statement (the “Final Commercialization Agreement Payment Statement”) setting forth Purchaser’s proposed good faith calculations of the Final Commercialization Agreement Payment Value and describing such proposed changes within thirty (30) days following the Closing Date, in each case including the components thereof and determined in a manner consistent with the definitions thereof and together with reasonable supporting back-up documentation. Seller shall propose any changes to the Estimated Inventories Value set forth in the Preliminary Inventories Statement by delivering to Purchaser a final statement (the “Final Inventories Statement”) setting forth Seller’s proposed good faith calculations of the Final Inventories Value and describing such proposed changes within ten (10) days following the receipt of the Final Commercialization Agreement Payment Statement (the “Adjustment Deadline”), in each case including the components thereof and determined in a manner consistent with the definitions thereof and together with reasonable supporting back-up documentation. The Final Inventories Statement shall set forth Seller’s proposed good faith calculations of the Purchase Price, based on the Final Inventories Value set forth in the Final Inventories Statement and the Final Commercialization Agreement Payment Value set forth in the Final Commercialization Agreement Payment Statement. The Final Inventories Statement shall also set forth Seller’s proposed calculation of the amount by which the Purchase Price exceeds, or is less than, the Estimated Purchase Price (such amount, as finally determined in accordance with this Section 2.07, the “Final Adjustment Amount”).
(b) The Parties shall be entitled to dispute the proposed adjustments to the Estimated Inventories Value and the Estimated Commercialization Agreement Payment Value, and the calculation of the Final Adjustment Amount, in each case, as set forth in the Final Inventories Statement if either Party delivers a written notice of such dispute (the “Dispute Notice”) to the other Party within thirty (30) days after Purchaser’s timely receipt of the Final Inventories Statement. The Dispute Notice shall describe the nature of any disagreement in reasonable detail and identify the specific line items involved and...
Post-Closing Adjustment. (a) As promptly as practicable after the Closing (but in no event later than sixty (60) Business Days following the Closing Date), the Purchaser shall cause to be prepared and delivered to the Parent the balance sheet of each of the Sellers under the Acquisition Agreements as of the close of business on the Closing Date including only those items in the definition of Net Working Capital, prepared in accordance with GAAP consistently applied (except as the definition of Net Working Capital varies from GAAP, in which case the definition of Net Working Capital shall control) (the “Closing Date Balance Sheet”), and a calculation based on the Closing Date Balance Sheet of the Closing Date Net Working Capital and the Adjustment Amount (the “Adjustment Amount Calculation”), specifying in reasonable detail such calculations.
(i) Within thirty (30) Business Days after delivery to the Parent of the Closing Date Balance Sheet and the Adjustment Amount Calculation, the Parent shall have the right to furnish to the Purchaser a statement (the “Objection Notice”) setting forth in reasonable detail any objections it has to the Adjustment Amount Calculation. The Parent may object to the Adjustment Amount Calculation solely on the basis of computational errors or that it was not prepared in accordance with GAAP, as modified by the definition of Net Working Capital. If no Objection Notice is received by the Purchaser within such thirty (30) Business Day period or if the Parent notifies the Purchaser in writing that the Adjustment Amount Calculation is acceptable, then the Adjustment Amount Calculation shall be deemed to have been accepted by the Parent and shall become final and binding upon the parties hereto.
(ii) If within twenty (20) Business Days after the delivery of the Objection Notice, the Purchaser and the Parent are unable to agree to an Adjustment Amount and Adjustment Amount Calculation, they shall engage the Chicago, Illinois office of KPMG LLP or, if it is unable or unwilling to serve, another nationally recognized accounting firm mutually acceptable to the Purchaser and the Parent (the “Independent Firm”) to resolve any disputes regarding the Adjustment Amount or the Adjustment Amount Calculation. The Purchaser and the Parent will direct the Independent Firm to render a written determination within twenty (20) Business Days of its retention, and the Purchaser and the Parent and their respective agents will cooperate with the Independent Firm during its engage...
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. (a) As soon as practicable, but in no event later than 90 days following the Closing Date, the Seller Parties shall prepare and deliver to the Company a statement of Closing Date Value, which statement shall be audited and certified by Deloitte & Touche LLP. Such statement shall exclude any adjustments related to fresh-start accounting relating to Advantica's bankruptcy. The costs and expenses of such audit shall be borne equally between the Company and the Seller Parties. The statement of Closing Date Value shall be set forth in reasonable detail to permit the calculations required by this Section 2.3.
(b) During the preparation of the statement of Closing Date Value as provided in Section 2.3(a) and the period of any review or dispute as provided in this Section 2.3, each of the Seller Parties, the Company and Buyer shall cooperate fully with each other and provide the other parties and their respective authorized representatives with full access to the books and records of the Company Group used in the preparation of such statement, including the provision on a timely basis of all necessary or useful information.
(c) After receipt of the statement of Closing Date Value from Seller Parties, Buyer shall have 30 days to review the statement of Closing Date Value, together with the workpapers used in the preparation thereof. Unless Buyer delivers written notice to the Seller Parties on or prior to the 30th day after Buyer's receipt from the Seller Parties of the statement of Closing Date Value stating that Buyer has objections to the statement of Closing Date Value and describing any such objections in reasonable detail, Buyer shall be deemed to have accepted and agreed to the statement of Closing Date Value. If on or prior to the 30th day after Buyer's receipt from the Seller Parties of the statement of Closing Date Value, Buyer notifies the Seller Parties of its objections to the statement of Closing Date Value, Buyer and Seller Parties shall, within 20 days (or such longer period as the parties may agree) following such notice (the "Resolution Period"), attempt to resolve their differences, and any resolution by them as to any disputed amounts shall be final, binding and conclusive.
(d) Any amounts remaining in dispute at the conclusion of the Resolution Period ("Unresolved Changes") shall be submitted to a nationally recognized firm of independent accountants independent of, and reasonably satisfactory to, Seller Parties, Buyer and their respective Affi...
Post-Closing Adjustment. Promptly after the Closing Date, Seller will prepare and, within 30 days of the Closing Date, deliver to Buyer a calculation of the Cash Portion of the Purchase Price based on a balance sheet of the relevant items as of the Closing Date (the "Final Balance Sheet"), together with Supporting Schedules thereto. The Final Balance Sheet shall be prepared in accordance with generally accepted accounting principles consistently applied and as though the parties had not consummated the transactions contemplated by this Agreement. Following the Closing, either (i) Seller shall pay Buyer an amount equal to the decrease, if any, between the Cash Portion of the Purchase Price as reflected on the Final Balance Sheet or the Adjusted Final Balance Sheet, as the case may be, as compared with the Cash Portion of the Purchase Price as reflected on the Closing Balance Sheet or (ii) Buyer shall pay Seller an amount equal to the increase, if any, between the Cash Portion of the Purchase Price as reflected on the Final Balance Sheet or the Adjusted Final Balance Sheet, as the case may be (the payment referred to in clause (i) or (ii) above shall be referred to as the "Post-Closing Adjustment") as compared with the Cash Portion of the Purchase Price as reflected on the Closing Balance Sheet. Such payments shall be made by wire transfer or certified or bank cashier's check within ten (10) business days of adoption of the Final Balance Sheet or the notice from the Accounting Firm of the Adjusted Final Balance Sheet, as the case may be. No payment shall be made by either party if the Cash Portion of the Purchase Price as reflected on the Closing Balance Sheet is equal to the Cash Portion of the Purchase Price as reflected on the Final Balance Sheet or the Adjusted Final Balance Sheet, as the case may be.
Post-Closing Adjustment. (a) Not later than forty-five (45) days ----------------------- following the Closing, the Seller shall prepare and deliver to the Buyer a balance sheet with respect to the ACS Business as of the Closing Date (the "Closing Date Balance Sheet"). The Closing Date Balance Sheet shall be prepared in accordance with generally accepted accounting principles on a basis consistent with the Seller's past practice and financial reporting.
(b) If the Buyer objects to the Closing Date Balance Sheet, it shall give notice of such objection to the Seller within fifteen (15) days following its receipt thereof. If the Buyer does not object to the Closing Date Balance Sheet within such period, the Closing Date Balance Sheet shall be final and binding upon the Buyer and the Seller. If the Buyer objects to the Closing Date Balance Sheet within such period and the Seller and the Buyer are unable to resolve such objection within fifteen (15) days, then such objection shall be submitted to a nationally recognized independent certified accounting firm jointly selected by the Seller and the Buyer. The determination of such firm shall be final and binding upon the Seller and the Buyer. The Seller and the Buyer shall each pay one-half of the fees and expenses of such firm in connection with the foregoing.
(c) If the net asset value of the ACS Business ("Net Asset Value", defined to equal the current assets plus fixed assets (at book value plus other assets minus the liabilities of the ACS Business) as determined with reference to the Closing Date Balance Sheet is greater than or less than $544,632.00, and such surplus or shortfall exceeds $5,000.00, then the principal amount under the Promissory Note shall be increased by such surplus or decreased by such shortfall, as the case may be (and the two equal payment installments under such Promissory Note adjusted accordingly) (such increase or decrease, the "Post -Closing Adjustment").
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 1.13 shall be 2,000,000 shares. As used in this Section 1.13: (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 Leaseco, 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 breach by the Parent or the Acquisition Subsidiary of any of their respective representations or warranties set forth in Article III herein, (ii) any litigation threatened, pending or for which a basis exists against the Parent or any Parent Subsidiary (as defined in this Agreement); (iii) any and all outstanding debts owed by the Parent or any Parent Subsidiary; (iv) any and all internal or employee related disputes, arbitrations or administrative proceedings threatened, pending or otherwise outstanding, (v) 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, (...
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.