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. The Closing Merger Consideration shall be adjusted after the Closing as follows:
(a) As soon as practicable, but in any event within one hundred and twenty (120) days following the Closing Date, the Buyer shall deliver, or cause to be delivered, to the Company Equityholder Representative an unaudited balance sheet of the Company (the “Preliminary Closing Date Balance Sheet”) as of the close of business on the Closing Date prepared in accordance with GAAP (applied on a basis consistent with the application thereof to the Financial Statements) and in the form and format of Exhibit E.
(b) Subject to the resolution of any disputes pursuant to this Section 1.12, within five (5) business days after the determination of the Final Closing Date Balance Sheet (as defined below):
(i) (A) if the sum of the Estimated Net Working Capital and the Estimated Closing Cash exceeds (B) the sum of the Closing Net Working Capital and the Closing Cash (such amount resulting from subtracting the amount described in the foregoing clause (ii) from the amount described in the foregoing clause (i) being referred to hereinafter as the “Closing Shortfall”), the Buyer shall be entitled to a payment from the Company Equityholders in an amount equal to the Closing Shortfall, which shall be treated as a downward adjustment to the Closing Merger Consideration payable to the Company Equityholders for Tax purposes; and
(ii) (A) if the sum of the Closing Net Working Capital and the Closing Cash exceeds (B) the sum of Estimated Net Working Capital and the Estimated Closing Cash (such amount resulting from subtracting the amount described in the foregoing clause (ii) from the amount described in the foregoing clause (i) being referred to hereinafter as the “Closing Excess”), the Company Equityholders shall be entitled to a payment from the Buyer, in accordance with Section 1.16, in an amount equal to the Closing Excess, which shall be treated as an upward adjustment to the Closing Merger Consideration payable to the Company Equityholders for Tax purposes.
(c) In the event of a Closing Shortfall, the Buyer and the Company Equityholder Representative shall, within five (5) business days after the determination of the Final Closing Date Balance Sheet, deliver to the Escrow Agent a joint instruction letter signed by each such Party instructing the Escrow Agent to disburse from the General Escrow Fund an amount in cash equal to the Closing Shortfall to one or more accounts designated by the Buyer. If...
Post-Closing Adjustment. (i) No later than 60 days after the Closing Date, the Buyer shall cause Holdco to prepare and deliver to the Representative a consolidated balance sheet of Holdco and Enginetics as of the Determination Time together with a statement (the “Closing Statement”) containing the Buyer’s determination of the actual amounts of Closing Working Capital, Cash as of the Determination Time, Debt as of the Closing, Selling Expenses as of the Closing and the Aggregate Preferred Stock Amount as of the Closing, and Buyer’s calculation of the Purchase Price based on such amounts (the “Final Purchase Price”). The Closing Statement and all computations and determinations contained therein shall be made and prepared in accordance with (i) GAAP applied in a manner consistent with the accounting principles and methods (including judgments and estimation methods) applied in the preparation of the Audited Financial Statements for the fiscal year ended September 30, 2013 and (ii) with the principles of preparation set forth in Schedule 2.2(a).
(ii) Within 30 days following receipt by the Representative of the Closing Statement, the Representative shall deliver written notice to the Buyer of any dispute it has with respect to the preparation or content of the Closing Statement (a “Dispute Notice”). If the Representative does not deliver a Dispute Notice within such 30-day period, such Closing Statement will be final, conclusive and binding on the Parties. If the Representative does deliver a Dispute Notice within such 30-day period, the Buyer and the Representative shall negotiate in good faith to resolve each disputed item raised therein (each an “Disputed Item”). If the Buyer and the Representative, notwithstanding such good faith effort, fail to resolve such dispute within 30 days after the Buyer's receipt of the Dispute Notice, the Buyer and the Representative jointly shall engage the Arbitration Firm to resolve each outstanding Disputed Item. As promptly as practicable thereafter (but in no event later than 30 Business Days after the engagement of such Arbitration Firm), the Buyer and the Representative shall each prepare and submit a brief (to include such party's calculations with regard to any Disputed Items) to the Arbitration Firm (with a copy to the Buyer and/or the Representative, as applicable). As soon as practicable thereafter, the Buyer and the Representative shall cause the Arbitration Firm to choose one of the party's positions based solely upon the briefs submitte...
Post-Closing Adjustment. (a) As soon as reasonably practicable after the Closing Date (and, in any event, within 120 days after the Closing Date), the Buyer shall prepare and deliver to the Seller, at the sole expense of the Buyer, a closing statement (the “Post-Closing Statement”) setting forth the proposed final calculation of: (i) Closing Cash (as finally determined pursuant to this Section 2.5, the “Final Cash”); (ii) the Working Capital (as finally determined pursuant to this Section 2.5, the “Final Working Capital”); (iii) the aggregate amount of Transaction Expenses (as finally determined pursuant to this Section 2.5, the “Final Transaction Expenses”); (iv) the Closing Indebtedness (as finally determined pursuant to this Section 2.5, the “Final Indebtedness”); (v) Hydrocarbon Inventory Value (as finally determined pursuant to this Section 2.5, “Final Hydrocarbon Inventory Value”); (vi) the Hydrocarbon Inventory Shortfall; and (vii) the resulting amount of the Final Purchase Price. The Post-Closing Statement shall: (A) exclude the impact of any actions taken by the Buyer or any of its Affiliates following the Closing, except to the extent such actions are required by applicable Law or contemplated by this Agreement; (B) not reflect changes in assets or liabilities as a result of purchase accounting adjustments; and (C) not reflect any events, conditions or circumstances which arise as a result of the change of control or ownership contemplated by the Transactions (except as expressly contemplated by the definition of Indebtedness or Transaction Expenses, as applicable) (the “Buyer Impact Matters”). For the avoidance of doubt, the Buyer Impact Matters shall not result in a downward adjustment to the Estimated Purchase Price or the Final Purchase Price. Under no circumstances may the Buyer amend or change the Post-Closing Statement after delivery of the Post-Closing Statement to the Seller. From and after the delivery of the Post-Closing Statement by the Buyer, the Buyer shall provide the Seller and its Representatives with reasonable access during normal business hours to the books, records and employees of the Buyer and its Affiliates (including the Target Company Group). If the Buyer fails to deliver the Post-Closing Statement within 120 days of the Closing, then the Seller shall have the sole and exclusive right to either: (x) prepare the Post-Closing Statement; or (y) deliver the Buyer a written notice that it does not propose any further adjustments to the Estimated Purc...
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. (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. After the final calculation of Final Net Closing Cash Consideration (as determined pursuant to Section 2.06 below):
(i) If the Final Net Closing Cash Consideration minus the Net Closing Cash Consideration is greater than $0 (such difference, the “Net Overage Amount”), then, within three Business Days following the determination of the Final Net Closing Cash Consideration in accordance with Section 2.06, Purchaser shall deliver to Seller the Net Overage Amount by wire transfer of immediately available funds to the account or accounts designated by Seller, and Seller and Purchaser shall, subject to the final resolution of the purchase price adjustment pursuant to Section 2.05 of the Gaiam-FFL APA, deliver a joint instruction to the Escrow Agent to distribute all funds remaining in the Adjustment Escrow Account to Seller by wire transfer of immediately available funds to the account or accounts designated by Seller; and
(ii) If the Final Net Closing Cash Consideration minus the Net Closing Cash Consideration is less than $0 (such difference a “Net Deficit Amount”), then, within three (3) Business Days following the determination of the Final Net Closing Cash Consideration in accordance with Section 2.06, Seller and Purchaser shall deliver a joint instruction to the Escrow Agent to distribute from the Adjustment Escrow Account, (A) to Purchaser the Net Deficit Amount by wire transfer of immediately available funds to the account or accounts designated by Purchaser, and (B) subject to the final resolution of the purchase price adjustment pursuant to Section 2.05 of the Gaiam-FFL APA, to Seller any funds remaining in the Adjustment Escrow Account by wire transfer of immediately available funds to the account or accounts designated by Seller; provided, however, that in no event shall the amount payable by Seller under this Section 2.05(c)(ii), if any, exceed the Adjustment Escrow Amount.
Post-Closing Adjustment. (a) In the event that, during the period commencing from the Closing Date and ending eighteen (18) months after the Closing Date, (i) the Parent or the Surviving Corporation incurs any Damages (as defined below) with respect to, in connection with, or arising from any Parent Liabilities (as defined below), or (ii) a Company Stockholder shall be entitled to be indemnified for Damages under Article VI hereof, then, in the case of clause (i) above, promptly following the filing by the Parent with the Securities and Exchange Commission (the “SEC”) of an annual or quarterly report covering the completed fiscal quarter in which such Damages were incurred, or, in the case of clause (ii) above, promptly after such Company Stockholder becomes entitled to receive payment for such indemnification pursuant to ARTICLE VI, the Parent shall issue to, in the case of clause (i) above, all of the Company Stockholders and/or their designees, or, in the case of clause (ii) above, such Company Stockholder so entitled to indemnification and/or his designees, such number of shares of Parent Common Stock (in addition to the Merger Shares to which any such person was or is entitled) as would result from dividing (x) the whole dollar amount of such Damages by (y) $1.00 (subject to equitable adjustment in the event of any stock split, stock dividend, reverse stock split or similar event affecting the Parent Common Stock after the Effective Time), rounded up or down to the nearest whole number (with 0.5 shares rounded upwards to the nearest whole number). Notwithstanding the foregoing, the limit on the aggregate number of shares of Parent Common Stock issuable under this Section shall be 500,000 shares. Any shares of Parent Common Stock that are issuable under clause (i) above shall be issued to the Company Stockholders pro rata in accordance with their respective holdings of Company Stock immediately prior to the Closing.
(b) As used in this Section, “Parent Liabilities” shall mean all liabilities, obligations or indebtedness of any nature whatsoever (i) of the Split-Off Subsidiary, whenever accruing, and (ii) of the Parent or the Acquisition Subsidiary, accruing prior to the Effective Time and not set forth in the Parent Disclosure Schedule (as defined below), including, but not limited to (A) any breach by the Parent or the Acquisition Subsidiary of any of their respective representations or warranties set forth in Article III herein, (B) any litigation threatened, pending or for ...
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.
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".