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 60 calendar days following the Closing, Purchaser shall prepare and deliver to Seller a statement setting forth Purchaser’s calculation of (i) the Working Capital Adjustment and (ii) the Closing Date Net Indebtedness. The calculation of the Closing Date Working Capital shall be prepared in accordance with GAAP applied in a manner consistent with the audited Financial Statements and by otherwise applying the same methodologies and accounting policies used in and otherwise on a basis consistent with the preparation of the audited Financial Statements, in all cases, except to the extent otherwise expressly provided in Exhibit A or in the definition of Closing Date Working Capital. The calculation of Closing Date Net Indebtedness shall be prepared in accordance with the definition of “Closing Date Net Indebtedness”. The “Working Capital Adjustment“ means an amount (which amount may be positive or negative) equal to the Closing Date Working Capital minus the Target Working Capital. “Closing Date Working Capital“ means the net amount, as of the Closing (but without giving effect to any actions of Purchaser, or to actions of the Company or its Subsidiaries taken at the Closing that are contemplated by this Agreement) of the accounts of the Company and its Subsidiaries, on a consolidated basis, including the aggregate amount of the SEO Rebate Payables and the adjustment prescribed by Section 1.04(i), and excluding the Excluded Assets and related Liabilities, determined, subject to Sections 1.04(h), 1.04(i) and 1.04(j), in accordance with Exhibit A (for the avoidance of doubt, amounts included in the determination of the Closing Date Net Indebtedness shall be excluded from the determination of the Closing Date Working Capital). “Closing Date Net Indebtedness“ means Net Indebtedness of the Company and its Subsidiaries as of the Closing Date. For purposes of illustration, Exhibit A sets forth the calculation, from the combined balance sheet of the Company and its Subsidiaries as at December 31, 2006, of what the Closing Date Working Capital would be if the Closing Date had been December 31, 2006, without regard for the SEO Rebate Payables or the adjustments prescribed by Section 1.04(i). The calculation of Closing Date Working Capital shall be prepared without giving effect to any actions of the Purchaser, or to any actions of the Company or its Subsidiaries taken at the Closing that are contemplated by this Agreement.
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. 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. (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. (i) Not later than ninety (90) days after the Closing Date, Buyer shall prepare and deliver to Seller a statement (the “Closing Working Capital Statement”), which statement shall be prepared in accordance with Canadian GAAP applied on a basis consistent with the calculation of the Estimated Closing Working Capital and contain:
(A) an unaudited balance sheet of Seller (without giving effect to the transactions contemplated hereby) as of the close of business on the day immediately prior to the Closing Date; and
(B) a calculation of the Closing Working Capital as of the close of business on the day immediately prior to the Closing Date.
(ii) The Post-Closing Adjustment, if any, shall be as follows:
(A) If the Post-Closing Adjustment is a Positive Adjustment Amount:
(1) but the Positive Adjustment Amount is less than the Excess Amount, Seller shall pay to Buyer the amount by which the Excess Amount exceeds the Positive Adjustment Amount; or
(2) Section 2.06(b)(i)(A)(1) does not apply, then Buyer shall pay to Seller an amount equal to the Positive Adjustment Amount, minus the Excess Amount, if any, or plus the Shortfall Amount, if any (as applicable).
(B) If the Post-Closing Adjustment is a Negative Adjustment Amount:
(1) but the Shortfall Amount is greater than the Negative Adjustment Amount, then Buyer shall pay to Seller an amount equal to the amount by which the Shortfall Amount exceeds the Negative Adjustment Amount; or
(2) Section 2.06(b)(ii)(B)(1) does not apply, then Seller shall pay to Buyer an amount equal to the Negative Adjustment Amount, minus the Shortfall Amount, if any, or plus the Excess Amount, if any (as applicable).
(C) If the Closing Working Capital is an amount which falls on or between the Working Capital Upper Target and the Working Capital Lower Target, and:
(1) the Cash Consideration paid to Seller was increased by the Excess Amount pursuant to Section 2.06(a)(ii), then Seller shall pay to Buyer an amount equal to such Excess Amount;
(2) the Cash Consideration paid to Seller was reduced by the Shortfall Amount pursuant to Section 2.06(a)(ii), then Buyer shall pay to Seller an amount equal to such Shortfall Amount; or
(3) there was no adjustment to the Cash Consideration paid to Seller pursuant to Section 2.06(a)(ii), then no Post-Closing Adjustment shall be required.
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. As soon as practicable following the ----------------------- Closing Date, and in any event within one hundred twenty (120) days thereafter, or at such other time as the parties mutually agree, Buyer shall deliver to Seller Buyer's certificate setting forth as of the Closing Date ("Post-Closing Adjustments") the Four Month Basic Subscribers Average, the number of Bulk Units, and all Post-Closing Adjustments for amounts due on account of Seller and charges and other obligations payable on account of Seller. Buyer shall deliver to Seller or Seller's representatives copies of all books and records as Seller may reasonably request for purposes of verifying such adjustments. Buyer's certificate shall be final and conclusive unless objected to by Seller in writing within thirty (30) days after delivery. Seller and Buyer shall attempt jointly to reach agreement as to the amount of the Closing Adjustments within sixty (60) days after receipt by Buyer of such written objection by Seller, which agreement, if achieved, shall be binding upon both parties to this Agreement and not subject to dispute or review. If Seller and Buyer cannot reach agreement as to the amount of the Closing Adjustments within such sixty (60) day period, Seller and Buyer agree to submit promptly any disputed adjustment to Ernst & Young. All fees and expenses of Ernst & Young pursuant to this Section shall be paid one-half by Buyer and one-half by Seller. Any amounts due Buyer or Seller for Post-Closing Adjustments shall be paid by the party owing such amount (or, to the extent disputed amounts are held by the Escrow Agent, shall be paid by the Escrow Agent pursuant to joint written instructions of Buyer and Seller in accordance with such final resolution) not later than five (5) Business Days after such amounts shall have become final and conclusive.
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. Effective upon the determination of the Post-Closing Statement pursuant to Section 1.03(b) above, the Estimated Purchase Price will be adjusted as follows and netted against each other as appropriate (as adjusted, the “Final Purchase Price”):
(i) upwards dollar-for-dollar, if
(A) the Final Net Working Capital is greater than the upper limit of the Target Net Working Capital Range, by the amount by which Final Net Working Capital is greater than the upper limit of Target Net Working Capital Range; provided that, for the avoidance of doubt, if the Final Net Working Capital falls within the Target Net Working Capital Range, then no adjustment to the Estimated Purchase Price shall be made pursuant to this Section 1.03(d)(i)(A);
(B) the Final Closing Date Indebtedness is less than the Estimated Closing Date Indebtedness, by the amount of such shortfall;
(C) the Final Company Closing Costs is less than the Estimated Company Closing Costs, by the amount of such shortfall; and
(D) the Final Closing Date Cash and Cash Equivalents exceeds the Estimated Closing Date Cash and Cash Equivalents, by the amount of such excess.
(ii) downwards dollar-for-dollar, if
(A) the Final Net Working Capital is less than the lower limit of the Target Net Working Capital Range, by the amount by which Final Net Working Capital is less than the lower limit of the Target Net Working Capital Range; provided that, for the avoidance of doubt, if the Final Net Working Capital falls within the Target Net Working Capital Range, then no adjustment to the Estimated Purchase Price shall be made pursuant to this Section 1.03(c)(ii)(A);
(B) the Final Closing Date Indebtedness exceeds the Estimated Closing Date Indebtedness, by the amount of such excess;
(C) the Final Company Closing Costs exceeds the Estimated Company Closing Costs, by the amount of such excess; and
(D) the Final Closing Date Cash and Cash Equivalents is less than the Estimated Closing Date Cash and Cash Equivalents, by the amount of such shortfall.