Post-Closing Merger Consideration Adjustment Sample Clauses
The Post-Closing Merger Consideration Adjustment clause defines the process for recalculating the final purchase price after a merger has closed, based on certain financial metrics or conditions that are verified post-closing. Typically, this involves comparing estimated values used at closing—such as working capital, debt, or cash balances—to the actual figures determined after the transaction, with any differences resulting in additional payments to or from the parties. This clause ensures that the final consideration accurately reflects the true financial state of the acquired company, thereby protecting both buyer and seller from discrepancies that could arise from estimates made at closing.
Post-Closing Merger Consideration Adjustment. (a) As promptly as practicable, but in any case no later than sixty (60) calendar days after the Closing Date, Buyer shall cause to be prepared and delivered to the Stockholders’ Representative a statement (the “Closing Statement”) setting forth the Net Working Capital, the Net Funded Indebtedness, the Transaction Related Expenses (to the extent not paid by the Company or any of its Affiliates prior to the Closing) (except for any such Transaction Related Expenses reimbursable or indemnifiable by Buyer pursuant to this Agreement (including Section 6.2 and Section 12.7)) and the components thereof. The Closing Statement shall include the amount calculated in good faith by Buyer, if any, of the Merger Consideration Escrow Amount that need not be retained by the Escrow Agent pending resolution of payments to be made pursuant to Section 2.11(d) (the “Merger Consideration Escrow Release Amount”). The Merger Consideration Escrow Release Amount, to the extent there is such an amount, shall be released two (2) Business Days following Buyer’s delivery of the Closing Statement. The Closing Statement and the Net Working Capital, the Net Funded Indebtedness and the Transaction Related Expenses (to the extent not paid by the Company or any of its Affiliates prior to the Closing) (except for any such Transaction Related Expenses reimbursable or indemnifiable by Buyer pursuant to this Agreement (including Section 6.2 and Section 12.7)) calculations shall be prepared and calculated in good faith, and in the manner and on a basis consistent with the Accounting Principles (to the extent applicable) and shall be in the same form and include the same line items as the Estimated Net Working Capital calculation, the Estimated Net Funded Indebtedness calculation and the Estimated Transaction Related Expenses calculation. If the Closing Statement is not so timely delivered, the Estimated Net Working Capital, the Estimated Net Funded Indebtedness and the Estimated Transaction Related Expenses will be deemed Final Net Working Capital, Final Net Funded Indebtedness and Final Transaction Related Expenses, respectively.
(b) After receipt of the Closing Statement, the Stockholders’ Representative will have forty five (45) calendar days to review the Closing Statement. Unless the Stockholders’ Representative delivers written notice (which notice shall include the items and amounts in dispute and supporting documentation related thereto; such notice, a “Seller Dispute Notice”) to Buyer s...
Post-Closing Merger Consideration Adjustment. Following the Closing Date, the Merger Consideration will be adjusted, if at all, as set forth below:
(a) Buyer will prepare and deliver to the Representative within sixty (60) days after the Closing Date (i) an unaudited balance sheet of the Company and its Subsidiaries as of the Adjustment Calculation Time (the “Closing Balance Sheet”), (ii) a statement (the “Closing Statement”) setting forth a calculation of (1) the Closing Net Working Capital, (2) the Closing Cash, (3) the Closing Indebtedness, (4) the Transaction Expenses, (5) Buyer’s calculation of the Final Merger Consideration derived from the foregoing, and (6) with respect to each of the foregoing, the changes in such amounts from the corresponding amounts set forth in the Estimated Closing Statement and (iii) reasonably detailed information and support for the foregoing calculations and proposed changes. The Closing Balance Sheet and Closing Statement will be prepared, and the Closing Net Working Capital, Closing Cash, Closing Indebtedness and Transaction Expenses will be determined, in each case, in good faith, on a consolidated basis in accordance with the definitions set forth in this Agreement and the Accounting Principles. The Parties agree that the purpose of preparing the Closing Balance Sheet and the Closing Statement and calculating Final Merger Consideration is solely to (x) accurately measure the Closing Net Working Capital, Closing Cash, Closing Indebtedness and Transaction Expenses and (y) measure the difference in Closing Net Working Capital from the Lower Bound Target Net Working Capital or Upper Bound Target Net Working Capital, as applicable, and such processes are not intended to permit the introduction of accounting methods, policies, principles, practices, procedures, reserves classifications or estimation methodologies that are different from the Accounting Principles.
(b) On or prior to the sixtieth (60th) day following Buyer’s delivery of the Closing Balance Sheet and the Closing Statement, the Representative may give Buyer a written notice stating in reasonable detail the Representative’s objections (a “Notice of Disagreement”) to the Closing Balance Sheet and the Closing Statement. During such 60‑day period, and any period of dispute thereafter with respect to such Closing Balance Sheet and/or Closing Statement, Buyer will, and will cause the Surviving Corporation and its Subsidiaries to, (i) provide the Representative and its Advisors reasonable access to the books, rec...
Post-Closing Merger Consideration Adjustment. The Merger Consideration shall be adjusted, upwards or downwards, as follows:
(i) If the Final Adjustment Amount is a negative number, then (A) the Merger Consideration shall be adjusted downwards in an amount equal to the absolute value of the Final Adjustment Amount (the “Parent Final Balance Sheet Reduction Amount”) and (B) (1) if the Parent Final Balance Sheet Reduction Amount is equal to or greater than the Holdback Amount, then Parent shall retain the entire Holdback Amount and the parties shall have the rights and responsibilities with respect to the amount equal to the excess of the Parent Final Balance Sheet Reduction Amount over the Holdback Amount as are provided in Article 7 and (2) if the Parent Final Balance Sheet Reduction Amount is less than the Holdback Amount, then, subject to Section 7.4, Parent shall retain that portion of the Holdback Amount equal to the Parent Final Balance Sheet Reduction Amount and pay an amount equal to the excess of the Holdback Amount over the Parent Final Balance Sheet Reduction Amount to the Securityholders (other than holders of any Dissenting Shares) in accordance with Section 2.6(b)(i)(B), Section 2.6(d)(i)(B), Section 2.7(d)(iii) and Section 2.12.
(ii) If the Final Adjustment Amount is a positive number (or zero), then (A) the Merger Consideration shall be adjusted upwards in an amount equal to the Final Adjustment Amount (if any) (the “Parent Final Balance Sheet Adjustment Payment Amount”) and (B) subject to Section 7.4, Parent shall pay or cause to be paid to the Securityholders (other than the holders of any Dissenting Shares) the Parent Final Balance Sheet Adjustment Payment Amount (if any) and the Holdback Amount in accordance with Section 2.6(b)(i)(B), Section 2.6(d)(i)(B), Section 2.7(d)(iii) and Section 2.12.
(iii) Amounts to be paid pursuant to subclause (i) and (ii) above shall bear interest from the Closing Date to the date of such payment at a rate equal 5% per annum.
(iv) Payments in respect of subclause (ii) above shall be made within three Business Days of the determination of the Final Closing Date Balance Sheet pursuant to this Section 2.13 by wire transfer of United States dollars in immediately available funds to such account or accounts as may be designated in writing by the party entitled to such payment at least two Business Days prior to such payment date.
Post-Closing Merger Consideration Adjustment. On or before the 120th day following the Closing Date, Parent, at Parent’s sole cost and expense shall prepare and deliver to the Sellers’ Representative a final balance sheet of Del Monte as of the Effective Time (the “Final Closing Date Balance Sheet”), which shall include the final determination of the Net Working Capital of Del Monte as of the Effective Time (the “Final Closing Date Net Working Capital”). The Final Closing Date Balance Sheet shall be prepared in a manner consistent with the preparation of the Closing Date Balance Sheet; provided, however, that any accounts receivable reflected in the Closing Date Balance Sheet will be disregarded for purposes of the Final Closing Date Balance Sheet to the extent such accounts receivable remain uncollected 120 days following the Closing. During the 30-day period immediately following the Sellers’ Representative’s receipt of the Final Closing Date Balance Sheet, the Sellers’ Representative, at its sole cost and expense, shall be permitted to review Parent’s working papers related to the preparation and determination of the Final Closing Date Balance Sheet.
Post-Closing Merger Consideration Adjustment. The parties agree that, after review, calculation, discussion and final agreement of the Actual Closing Balance Sheet, Actual Cash, Actual Indebtedness, Actual Transaction Expenses (including, without limitation, all employment-related Taxes) and Actual Working Capital, that Parent is entitled to receive an aggregate of $241,817.43 (as may be adjusted downward prior to payment pursuant to Section 4 of this Amendment, the “Claim Amount”) pursuant to Section 1.11(e)(ii) of the Agreement. Notwithstanding Section 1.11(e)(ii) of the Agreement, the Claim Amount will be satisfied on the earlier of (i) the date on which Surviving Corporation or Parent actually receives payment in full of the ERCs, or (ii) the “Maturity Date” of the Secured Promissory Note (such earlier date, the “Settlement Date”), upon the terms set forth in Sections 5 and 6 below. On the Initial Escrow Release Date, ▇▇▇▇▇▇ agrees to prepare and execute a Joint Written Direction (to be signed by the Stockholders’ Representative) directing the Escrow Agent to release the Indemnity Escrow Fund and the entire NWC Escrow Fund to the Exchange Agent for distribution to Stockholders.
Post-Closing Merger Consideration Adjustment. (a) Closing Date Balance Sheet and Closing Date Net Working Capital Calculation. Within 60 days following the Closing Date, Purchaser shall prepare and deliver to the Shareholder Representative a consolidated balance sheet of the Company and its Subsidiaries as of the Closing Date (the “Closing Date Balance Sheet”) and a calculation of the Adjusted Consolidated Net Working Capital of the Company and its Subsidiaries as of the Closing Date (the “Closing Date Net Working Capital Calculation”). The Closing Date Balance Sheet shall be prepared in accordance with United States generally accepted accounting principles (“GAAP”), applied on a basis consistent with the Reference Balance Sheet. Immediately following the Closing, Purchaser and the Shareholder Representative will conduct an inventory of the Company’s inventory for purposes of identifying the inventory of the Company and its Subsidiaries as of the Closing Date and the value of such inventory for purposes of preparing the Closing Date Balance Sheet and the Closing Date Net Working Capital Calculation. Purchaser and the Shareholder Representative will each designate one or more representative(s) to conduct such inventory. The Shareholder Representative and its accountants shall be entitled to review the Closing Date Balance Sheet and the Closing Date Net Working Capital Calculation, and any working papers, trial balances and similar materials relating to the Closing Date Balance Sheet and the Closing Date Net Working Capital Calculation prepared by Purchaser, the Company or their respective accountants. The Company shall also provide the Shareholder Representative and its accountants with timely access, during normal business hours, to Purchaser’s and the Company’s relevant employees and outside accountants, properties, books and records to the extent involved with or related to the preparation of the Closing Date Balance Sheet and the Closing Date Net Working Capital Calculation.
Post-Closing Merger Consideration Adjustment. The number of Buyer Shares to be delivered hereunder shall be subject to adjustment as set forth herein. The adjustment set forth in this ss.2(h) shall be calculated on the date (the "Measurement Date") that is the earlier to occur of (i) the date that is 180 days after the Closing Date, if the Buyer has not 14 20 consummated an initial public offering of its common stock within such 180-day period and (ii) the date that is 180 days after the expiration of the restrictions on transfer in the Lock-Up Agreement, if the Buyer shall have consummated an initial public offering of its common stock within 180 days after the Closing Date. On the Measurement Date, the Buyer and the Stockholder Representatives shall calculate the average of the closing share prices (the "Post-Closing Average") of the Buyer common stock for the thirty (30) trading day period ended on the last trading day immediately prior to the Measurement Date. If the Post-Closing Average is $12.00 per share or higher, there shall be no adjustment to the number of Buyer Shares to be delivered as part of the Merger Consideration hereunder. If the Post-Closing Average is less than $9.00 per share, the Buyer shall deliver to the Stockholder Representatives for distribution to the Stockholders an additional 1,670,000 Buyer Shares. If the Post-Closing Average is equal to or higher than $9.00 per share, and lower than $12.00 per share, the Buyer shall deliver to the Stockholder Representatives for distribution to the Stockholders, a number of additional Buyer Shares equal to (A) the quotient obtained by dividing $60,000,000 by the Post-Closing Average, minus (B) 5,000,000. The number of Buyer Shares to be delivered as set forth in this ss.2(h) shall be reduced by the same pro rata portion that the Merger Consideration was reduced pursuant to ss.2(d)(vi). The Buyer shall issue 1,670,000 Buyer Shares into escrow on the Closing Date (the "Additional Buyer Shares") which shall be released to the Buyer or the Stockholders' Representatives, as appropriate, promptly following the Measurement Date. The Buyer shall not be entitled to set off against any additional Buyer Shares to be delivered hereunder any amounts claimed by the Buyer to be owed under ss.8 hereof or otherwise.
Post-Closing Merger Consideration Adjustment. (a) Within 60 days after the Closing Date, PetroQuest will prepare and deliver or cause to be prepared and delivered to the Members a balance sheet of the Company as of the close of business on December 31, 2004 audited by Ernst & Young LLP (the “Final Reference Balance Sheet”) and an unaudited proposed statement of Net Working Capital as of December 31, 2004 prepared therefrom (the “Statement”), in each case, without giving effect to the transactions described in this Agreement to be consummated at the Closing. The Final Reference Balance Sheet and the Statement (i) will reflect the financial position of the Company and the components and calculation of the Net Working Capital as of December 31, 2004, and (ii) will be prepared and determined as of December 31, 2004 and on a basis consistent with this Agreement and GAAP. The Net Working Capital as of December 31, 2004 determined in accordance with this Section 3.2 is referred to herein as the “Final Reference Working Capital Balance.”
(b) If, within 30 days after the date of PetroQuest’s delivery of the Final Reference Balance Sheet and the Statement, the Members determine in good faith that the Final Reference Balance Sheet and the Statement have not been prepared or determined in accordance with this Agreement and GAAP, the Members will give written notice to PetroQuest within such 30 day period (i) setting forth the Members’ proposed changes to the Statement as prepared by PetroQuest and the determination by the Members of the Final Reference Working Capital Balance and (ii) specifying in reasonable detail the Members’ basis for disagreement with PetroQuest’s preparation and determination of the Statement and the Final Reference Working Capital Balance. The failure by the Members to so express disagreement and provide such notice within such 30-day period will constitute the acceptance of PetroQuest’s preparation of the Statement and the computation of the Final Reference Working Capital Balance. If PetroQuest and the Members are unable to resolve any disagreement between them with respect to the preparation of the Statement and the determination of the Final Reference Working Capital Balance within 15 days after the giving of notice by the Members to PetroQuest of such disagreement, the items in dispute may be referred by PetroQuest or the Members for determination to the New Orleans, Louisiana office of KPMG LLP (or, if they are unable or unwilling to serve, another nationally recognized “Big 4” accou...
Post-Closing Merger Consideration Adjustment. (a) The Merger Consideration shall be adjusted on a dollar-for-dollar basis (the "Adjustment") to the extent that the Closing Net Worth (defined below) is less than $66.0 million. Ernst & Young LLP (the "Seller's Accountant") shall perform by June 15, 2000 a review of the balance sheet of the Company as of the Closing Date (the "Closing Balance Sheet") in accordance with the AICPA Statement of Standards for Accounting and Review Services (SSARS) #1 and issue a report thereon. The Closing Balance Sheet shall be prepared by the Company in accordance with GAAP, consistent with past practices. Using the financial statements upon which the Seller's Accountant performed the SSARS #1 review, the Seller's Accountant shall also prepare a special procedures report in accordance with Statement of Auditing Standards #75 which shall set forth a calculation of "Closing Net Worth" in accordance with this Agreement. The Seller's Accountant shall deliver the Closing Net Worth calculation and such computation to both Buyer and the Holders' Representative, and promptly after its receipt of such computation, the Buyer shall give the Holders' Representative notice (the "Adjustment Notice") of any proposed Adjustment (the "Proposed Adjustment") unless the Buyer gives a Dispute Notice in accordance with Section 2.14(b). The Buyer shall also be entitled to access to all work papers and all other supporting accounting documents of the Seller's Accountant related to such determinations. In addition, the Buyer and Buyer's accountant, PricewaterhouseCoopers LLP, shall be entitled to ask questions, receive answers and request such other data and information from the Seller's Accountant as shall be reasonable under the circumstances. "Closing Net Worth" means, as of the Closing Date, the total Assets of the Company minus the total Liabilities of the Company (excluding the Total Debt and deferred financing fees). The Adjustment, if any, shall earn interest from the Closing Date until the Settlement Date, as defined below, at a rate equal to the short-term AFR rate published in the Wall Street Journal on the Closing Date.
Post-Closing Merger Consideration Adjustment