Common use of Post-Closing Adjustment of Purchase Price Clause in Contracts

Post-Closing Adjustment of Purchase Price. (a) As soon as practicable but within 15 days after the completion of the external audit of the Buyer’s (or any successor’s) financial statements for the year ended December 31, 2020 (but in no event later than April 30, 2021), the Buyer shall prepare, or cause to be prepared, and deliver to the Seller Representative a written statement (the “Final Closing Statement”) that shall include and set forth (i) a consolidated balance sheet of the Enhanced Entities as of immediately prior to the Closing (the “Closing Balance Sheet”) and a consolidated income statement of each of the Companies for the year ended December 31, 2020 (the “Year End Income Statement”) and (ii) a good faith calculation of the actual (A) EBITDA (the “Final EBITDA”), (B) Payoff Indebtedness (the “Closing Payoff Indebtedness”), (C) Cash (the “Final Cash”), and (D) Transaction Expenses (the “Closing Transaction Expenses”) (with each of Closing Payoff Indebtedness and Closing Transaction Expenses determined as of immediately prior to the Closing, Final Cash shall be determined as of December 31, 2020 and Final EBITDA shall be determined for the year ended December 31, 2020, in each case (except for Closing Transaction Expenses and Unpaid Taxes (included in Payoff Indebtedness)), without giving effect to the transactions contemplated by this Agreement or the Ancillary Agreements), together with, in each case, reasonably detailed supporting information containing the components thereof. Final EBITDA, Closing Payoff Indebtedness, Final Cash and Closing Transaction Expenses shall be calculated in accordance with the definitions thereof and GAAP, which shall (x) not include any changes in assets or liabilities as a result of purchase accounting adjustments or other changes arising from or resulting as a consequence of the transactions contemplated by this Agreement or the Ancillary Agreements, (y) be based on facts and circumstances as they exist on the Closing Date and (z) exclude the effect of any, decision or event occurring on or after the Closing Date. In furtherance of the foregoing, the parties acknowledge and agree that GAAP is not intended to permit the introduction of different judgments, accounting methods, policies, principles, practices, procedures, classifications or estimation methodologies that are not, in each case, specifically set forth therein. If the Buyer fails to timely deliver any of the Final Closing Statement and the calculations set forth therein in accordance with the foregoing, then, at the election of the Seller Representative in its sole discretion, either (x) the Net Adjustment Amount shall be conclusively deemed to equal $1,000,000 or (y) upon five (5) Business Days advance written notice to the Buyer, the Seller Representative shall retain an independent public accounting firm to provide an audit or other review of the Target Entities’ books and records, review the calculation of the Estimated Purchase Price and the Interim Closing Statement and make any adjustments necessary thereto consistent with the provisions of this Section 2.6, the determination of such accounting firm being conclusive and binding on the Parties; provided, however, that the Seller Representative reserves any and all other rights granted to it in this Agreement. The engagement fees of such accounting firm shall be borne as set forth in Section 2.6(d).

Post-Closing Adjustment of Purchase Price. (a) As soon as practicable practicable, but within 15 not later than sixty (60) days after the completion Closing Date, Seller shall deliver to Buyer (i) the balance sheet of the external audit of the Buyer’s (or any successor’s) financial statements Aptus and NEI for the year ended Date of Closing and related statements of income and cash flows for the period from December 31, 2020 (but in no event later than April 30, 2021), the Buyer shall prepare, or cause to be prepared, and deliver 1994 to the Seller Representative Date of Closing, prepared in accordance with GAAP applied on a written statement (basis consistent with that used by Price Waterhouse in the “Final Closing Statement”) that shall include and set forth (i) a consolidated balance sheet preparation of the Enhanced Entities as of immediately prior to the Closing (the “Closing Balance Sheet”) FYE 1993 and a consolidated income statement of each of the Companies for the year ended December 311994 Financial Statements, 2020 (the “Year End Income Statement”) and (ii) a good faith calculation of the actual (A) EBITDA (Financial Statements required by Section 3.5 but not available at the “Final EBITDA”), (B) Payoff Indebtedness (the “Closing Payoff Indebtedness”), (C) Cash (the “Final Cash”)execution hereof, and (Diii) Transaction Expenses (the “Closing Transaction Expenses”) (with each Seller's calculation of Closing Payoff Indebtedness and Closing Transaction Expenses determined as of immediately prior to the Closing, Final Cash net worth which shall be determined calculated as of December 31, 2020 1994 and Final EBITDA shall be determined for the year ended December 31, 2020, in each case (except for Closing Transaction Expenses and Unpaid Taxes (included in Payoff Indebtedness)), without giving effect to the transactions contemplated by this Agreement or the Ancillary Agreements), together with, in each case, reasonably detailed supporting information containing the components thereof. Final EBITDA, Closing Payoff Indebtedness, Final Cash and Closing Transaction Expenses shall be calculated adjusted in accordance with Schedule 2.3.1 (the definitions thereof "December 1994 Adjusted Net Worth") and GAAP, which shall (x) not include any changes in assets or liabilities as a result of purchase accounting adjustments or other changes arising from or resulting as a consequence of the transactions contemplated by this Agreement or the Ancillary Agreements, (y) be based on facts and circumstances as they exist on the Closing Date and (z) exclude the effect of any, decision or event occurring on or after at the Closing Date, also adjusted in accordance with Schedule 2.3.1 (the "Final Adjusted Net Worth"). In furtherance Within thirty (30) days after receipt of the foregoingaforementioned items, Buyer shall either inform Seller in writing that the calculation of Final Adjusted Net Worth is acceptable or object to the calculation of Final Adjusted Net Worth in writing setting forth in reasonable detail Buyer's objections and the basis for those objections. If Buyer so objects and the Parties do not resolve such objections on a mutually agreeable basis within thirty (30) days after Seller's receipt thereof, the parties acknowledge disagreement shall be resolved within an additional sixty (60) day period by a "Big 6" accounting firm jointly selected by the Parties (the "Independent Firm"). The decision of the Independent Firm shall be final and agree that GAAP is not intended to permit binding upon the introduction Parties. Upon the agreement of different judgmentsthe Parties or the decision of the Independent Firm, accounting methods, policies, principles, practices, procedures, classifications or estimation methodologies that are not, in each case, specifically set forth therein. If the if Buyer fails to timely deliver any of an objection to Seller within the Final Closing Statement and the calculations set forth therein in accordance with the foregoingthirty (30) day period provided above, then, at the election of the Seller Representative in its sole discretion, either (x) the Net Adjustment Amount shall be conclusively deemed to equal $1,000,000 or (y) upon five (5) Business Days advance written notice to the Buyer, the Seller Representative shall retain an independent public accounting firm to provide an audit or other review of the Target Entities’ books and records, review the calculation of the Estimated Purchase Price and the Interim Closing Statement and make any adjustments necessary thereto consistent with the provisions of this Section 2.6, the determination of such accounting firm being conclusive and binding on the Parties; provided, however, that the Seller Representative reserves any and all other rights granted to it in this Agreement. The engagement fees of such accounting firm Final Adjusted Net Worth shall be borne as set forth in Section 2.6(d)deemed final. Each Party shall bear the fees, costs and expenses of its own accountants and shall share equally the fees, costs and expenses of the Independent Firm.

Post-Closing Adjustment of Purchase Price. (a) As soon as reasonably practicable but following the Closing Date, and in any event within 15 45 calendar days after the completion of the external audit of the Buyer’s (or any successor’s) financial statements for the year ended December 31thereof, 2020 (but in no event later than April 30, 2021), the Buyer shall prepare, or cause to be prepared, prepare and deliver to the Seller Representative a written statement (the “Final Closing Statement”) that shall include and set forth (i) a an unaudited consolidated balance sheet of the Enhanced Entities as of immediately prior to the Closing Business (the “Closing Balance Sheet”) and a consolidated income statement of each of the Companies for the year ended December 31), 2020 (the “Year End Income Statement”) and (ii) a good faith calculation of the actual Net Working Capital (A) EBITDA (the “Final EBITDAClosing Date Net Working Capital”), (Biii) Payoff Indebtedness a calculation of the aggregate amount of all Debt of the Business (the “Closing Payoff Indebtedness”), (C) Cash (the “Final CashDate Debt”), and (Div) Transaction Expenses a calculation of Cash of the SLP Subsidiary (the “Closing Transaction ExpensesDate Cash”) (with each of Closing Payoff Indebtedness and Closing Transaction Expenses determined as of immediately prior to the Closing, Final Cash shall be determined as of December 31, 2020 and Final EBITDA shall be determined for the year ended December 31, 2020), in each case (except for as set forth in the proviso below) (x) calculated as of the close of business on the Closing Transaction Expenses Date in accordance with the Accounting Principles and Unpaid Taxes (included in Payoff Indebtedness)), y) without giving effect to the consummation of the acquisition of the Business by the Buyer, including any payments of cash in respect of the Purchase Price, the repayment of Debt, or other payments or any financing transactions in connection with the Closing or the other transactions contemplated by this Agreement or hereby; provided, however, (I) the Ancillary Agreements), together with, in each case, reasonably detailed supporting information containing the components thereof. Final EBITDA, Closing Payoff Indebtedness, Final Cash and Closing Transaction Expenses Balance Sheet shall be calculated in accordance with the definitions thereof and GAAP, which shall (x) not include any reflect no changes in assets reserves (regardless of whether any such reserve is recorded as an offset to a current asset’s carrying value or liabilities is included as a result of purchase accounting adjustments or an accrued liability in the Closing Balance Sheet) from amounts contained in the Balance Sheet, other than changes arising from or resulting as a consequence of the transactions contemplated by this Agreement or the Ancillary Agreements, (y) be based on therein attributable to changes in facts and circumstances as they exist on occurring after the date of the Balance Sheet and (II) the Closing Date Balance Sheet shall not reflect any expense or liability for which Buyer is responsible under Section 11.1 of this Agreement. Following the Closing, the Buyer shall provide the Sellers and their representatives, upon reasonable request, access during normal business hours to the records, properties, personnel and (zsubject to the execution of customary work paper access letters if requested) exclude auditors of the effect Business relating to the preparation of any, decision or event occurring on or after the Closing Date. In furtherance Balance Sheet and shall cause the personnel of the foregoing, the parties acknowledge and agree that GAAP is not intended Business to permit the introduction of different judgments, accounting methods, policies, principles, practices, procedures, classifications or estimation methodologies that are not, in each case, specifically set forth therein. If the Buyer fails to timely deliver any of the Final Closing Statement and the calculations set forth therein in accordance reasonably cooperate with the foregoing, then, at the election of the Seller Representative Sellers as may be reasonably required in connection with its sole discretion, either (x) the Net Adjustment Amount shall be conclusively deemed to equal $1,000,000 or (y) upon five (5) Business Days advance written notice to the Buyer, the Seller Representative shall retain an independent public accounting firm to provide an audit or other review of the Target Entities’ books and records, review the calculation of the Estimated Purchase Price and the Interim Closing Statement and make any adjustments necessary thereto consistent with the provisions of this Section 2.6, the determination of such accounting firm being conclusive and binding on the PartiesBalance Sheet; provided, however, that such access shall not unreasonably disrupt the Seller Representative reserves any and all other rights granted to it in this Agreement. The engagement fees operations of such accounting firm shall be borne as set forth in Section 2.6(d)the Business.

Post-Closing Adjustment of Purchase Price. (a) The parties acknowledge and ----------------------------------------- agree that the Purchase Price to be paid at Closing will be based on the Audited 1998 Balance Sheet. As soon promptly as practicable but within 15 days after the completion of the external audit of the Buyer’s (or any successor’s) financial statements for the year ended December 31, 2020 (but in no event later than April September 30, 2021)1998, the Buyer shall prepare, or cause to be prepared, prepare and deliver to Sellers an unaudited balance sheet of Buyer, which shall contain separate unaudited balance sheets from each of the Seller Representative Sellers, on a written statement stand alone or push down basis, as of September 30, 1998 (the “Final Closing "September Statement”"), which shall be prepared by or on behalf of Buyer in accordance with generally accepted accounting principles ("GAAP") on a basis consistent with the Audited 1998 Balance Sheet. The "September Base Net Value" shall hereinafter refer to the net book value of the Transferred Assets less the Assumed Liabilities reflected on the September Statement. It is the intention of the parties that the September Statement shall include and set forth (i) a consolidated be treated as the balance sheet of the Enhanced Entities Sellers as of immediately prior to the Closing (the “Closing Balance Sheet”) and a consolidated income statement of each of the Companies for the year ended December 31, 2020 (the “Year End Income Statement”) and (ii) a good faith calculation of the actual (A) EBITDA (the “Final EBITDA”), (B) Payoff Indebtedness (the “Closing Payoff Indebtedness”), (C) Cash (the “Final Cash”), and (D) Transaction Expenses (the “Closing Transaction Expenses”) (with each of Closing Payoff Indebtedness and Closing Transaction Expenses determined as of immediately prior to the Closing, Final Cash shall be determined as of December 31, 2020 and Final EBITDA shall be determined for the year ended December 31, 2020, in each case (except for Closing Transaction Expenses and Unpaid Taxes (included in Payoff Indebtedness)), without giving effect to the transactions contemplated by this Agreement or the Ancillary Agreements), together with, in each case, reasonably detailed supporting information containing the components thereof. Final EBITDA, Closing Payoff Indebtedness, Final Cash and Closing Transaction Expenses shall be calculated in accordance with the definitions thereof and GAAP, which shall (x) not include any changes in assets or liabilities as a result of purchase accounting adjustments or other changes arising from or resulting as a consequence of the transactions contemplated by this Agreement or the Ancillary Agreements, (y) be based on facts and circumstances as they exist on the Closing Date and the Purchase Price may be subject to an adjustment as described below based thereon unless there is a September Statement Dispute (z) exclude as defined below). If there is no September Statement Dispute and the effect of anySeptember Base Net Value is less than the Audited Base Net Value, decision or event occurring on or after (the Closing Date. In furtherance of the foregoing"September Differential Amount"), the parties acknowledge and agree that GAAP is not intended to permit amount by which the introduction of different judgments, accounting methods, policies, principles, practices, procedures, classifications or estimation methodologies that are not, September Differential Amount exceeds $150,000 shall be set off against the Subordinated Promissory Note in each case, specifically the manner set forth thereinbelow. If the Buyer fails to timely deliver any of the Final Closing The September Statement and the calculations set forth therein in accordance with the foregoing, then, at the election of the Seller Representative in its sole discretion, either (x) the Net Adjustment Amount shall be conclusively deemed to equal $1,000,000 or (y) upon five (5) Business Days advance written notice to the Buyer, the Seller Representative shall retain an independent public accounting firm to provide an audit or other review of the Target Entities’ books and records, review the calculation of the Estimated Purchase Price and the Interim Closing Statement and make any adjustments necessary thereto consistent with the provisions of this Section 2.6, the determination of such accounting firm being conclusive and binding upon the parties hereto, unless the Sellers object in writing to any item or items shown on the Parties; providedSeptember Statement within twenty (20) business days after delivery to the Sellers of the September Statement (the "September Objection Period"). During the September Objection Period, howeverthe Sellers shall have reasonable access during normal business hours to all work papers of the Buyer's which were used in the preparation of the September Statement. If Buyer and the Sellers shall be unable to resolve any dispute with respect to the balance sheet of Sellers as of the Closing Date based on the September Statement (the "September Statement Dispute") within twenty (20) business days after delivery of the Sellers' written objections, that Xxxxx's Accountant will perform agreed upon procedures on the Seller Representative reserves any statement of the net book value of the Transferred Assets and all other rights granted to it in this Agreementthe Assumed Liabilities of the Sellers as of the Closing Date (the "Closing Date Statement"). The engagement fees costs of such accounting firm procedures shall be borne as set forth in Section 2.6(d)equally between Buyer and Sellers.

Post-Closing Adjustment of Purchase Price. (a) As soon as practicable but within 15 Within 75 days after the completion of the external audit of the Buyer’s (or any successor’s) financial statements for the year ended December 31Closing Date, 2020 (but in no event later than April 30, 2021), the Buyer shall prepare, or cause to be prepared, and deliver to the Seller Representative a written statement (the “Final Closing Statement”) that shall include and set forth (i) a consolidated balance sheet of the Enhanced Entities Company as of immediately prior to the Closing (the “Closing Balance Sheet”) and a consolidated income statement of each of the Companies for the year ended December 31, 2020 (the “Year End Income Statement”) and (ii) a good faith calculation of the actual (A) EBITDA Net Working Capital (the “Final EBITDAClosing Net Working Capital”), (B) Payoff Indebtedness (the “Closing Payoff Indebtedness”), (C) Cash (the “Final Closing Cash”), and (D) Transaction Expenses (the “Closing Transaction Expenses”) (with each of Closing Payoff Indebtedness Net Working Capital, Closing Indebtedness, Closing Cash and Closing Transaction Expenses determined as of immediately prior to the ClosingClosing and, Final Cash shall be determined as of December 31, 2020 and Final EBITDA shall be determined for the year ended December 31, 2020, in each case (except for Closing Transaction Expenses and Unpaid Taxes (included in Payoff Indebtedness))Expenses, without giving effect to the transactions contemplated by this Agreement or the Ancillary Agreementsherein), together with, in each case, reasonably detailed supporting information containing the components thereof. Final EBITDAClosing Net Working Capital, Closing Payoff Indebtedness, Final Cash Indebtedness and Closing Transaction Expenses Cash shall be calculated in accordance with the definitions thereof Applicable Accounting Principles. The Final Closing Statement will entirely disregard (A) any and GAAP, which shall (x) not include any changes in all effects on the assets or liabilities of the Company as a result of purchase accounting adjustments the transactions contemplated hereby or of any financing or refinancing arrangements entered into at any time by Buyer or any other changes arising from or resulting as a consequence transaction entered into by Buyer in connection with the consummation of the transactions contemplated by this Agreement hereby, and (B) any of the plans, transactions, or changes which Buyer makes or causes to be initiated or made after the Ancillary Agreements, (y) Closing with respect to the Company or its business or assets. The Final Closing Statement will be based solely on facts and circumstances as they exist on as of the Closing Date and (z) exclude the effect of anyno event, decision circumstance, or event act occurring on or after the Closing Date. In furtherance of the foregoing, the parties acknowledge and agree that GAAP is not intended to permit the introduction of different judgments, accounting methods, policies, principles, practices, procedures, classifications or estimation methodologies that are not, in each case, specifically set forth therein. If the Buyer fails to timely deliver any of the Final Closing Statement and the calculations set forth therein in accordance with the foregoing, then, at the election of the Seller Representative in its sole discretion, either (x) the Net Adjustment Amount shall be conclusively deemed to equal $1,000,000 or (y) upon five (5) Business Days advance written notice to the Buyer, the Seller Representative shall retain an independent public accounting firm to provide an audit or other review of the Target Entities’ books and records, review the calculation of the Estimated Purchase Price and the Interim Closing Statement and make any adjustments necessary thereto consistent with the provisions of this Section 2.6, affect the determination of such accounting firm being conclusive and binding on the Parties; provided, however, that the Seller Representative reserves any and all other rights granted to it in this Agreement. The engagement fees of such accounting firm shall be borne as items set forth in Section 2.6(d)on Final Closing Statement.

Post-Closing Adjustment of Purchase Price. (a) As soon as practicable but within 15 Within 90 days after the completion of the external audit of the Buyer’s (or any successor’s) financial statements for the year ended December 31, 2020 (but in no event later than April 30, 2021)Closing Date, the Buyer shall prepare, or cause to be prepared, and deliver to the Seller Sellers Representative a written statement (the “Final Closing Statement”) that shall include and set forth (i) a consolidated balance sheet of the Enhanced Entities Company, as of immediately prior to the Closing Calculation Time (the “Closing Balance Sheet”) and a consolidated income statement of each of the Companies for the year ended December 31, 2020 (the “Year End Income Statement”) and (ii) a good faith calculation of the actual (A) EBITDA Net Working Capital (the “Final EBITDAClosing Net Working Capital”), (B) Payoff Indebtedness (the “Closing Payoff Indebtedness”), (C) Cash (the “Final Closing Cash”), and (D) Transaction Expenses (the “Closing Transaction Expenses”) (with each of Closing Payoff Net Working Capital, Closing Indebtedness and Closing Transaction Expenses Cash determined as of immediately prior to the ClosingCalculation Time and, Final Cash shall be determined as of December 31, 2020 and Final EBITDA shall be determined for the year ended December 31, 2020, in each case (except for Closing Transaction Expenses and Unpaid Taxes (included in Payoff Indebtedness))Expenses, without giving effect to the transactions contemplated by this Agreement or herein); provided, for the Ancillary Agreements)avoidance of doubt, together withthat, in each case, reasonably detailed supporting information containing the components thereof. Final EBITDAmaking such calculations, Closing Payoff Net Working Capital shall exclude any amounts included in Closing Cash, Closing Indebtedness, Final and Closing Transaction Expenses to avoid any double-counting of any particular adjustment. Closing Net Working Capital, Closing Indebtedness and Closing Cash shall be calculated in accordance with the Applicable Accounting Principles. All calculations of Closing Net Working Capital, Closing Indebtedness, Closing Cash and Closing Transaction Expenses shall be calculated accompanied by a certificate of a duly authorized officer of the Buyer certifying that such amounts have been prepared in good faith in accordance with this Agreement. If the definitions thereof and GAAP, which shall (x) Buyer does not include any changes in assets or liabilities as a result of purchase accounting adjustments or other changes arising from or resulting as a consequence of deliver the transactions contemplated by this Agreement or Final Closing Statement to the Ancillary Agreements, (y) be based on facts and circumstances as they exist on the Closing Date and (z) exclude the effect of any, decision or event occurring on or Sellers Representative within 90 days after the Closing Date. In furtherance of the foregoing, the parties acknowledge and agree that GAAP is not intended to permit the introduction of different judgments, accounting methods, policies, principles, practices, procedures, classifications or estimation methodologies that are not, in each case, specifically set forth therein. If the Buyer fails to timely deliver any of the Final Closing Statement and the calculations set forth therein in accordance with the foregoing, then, at the election of the Seller Sellers Representative (acting in its sole discretion), either (x) the Net Adjustment Amount shall be conclusively deemed to equal $1,000,000 Sellers Representative may prepare and present the Final Closing Statement within an additional 30 days thereafter or (y) upon five (5) Business Days advance written notice the Preliminary Closing Statement will be deemed to be the Final Closing Statement in accordance with this Section 2.4(a). If the Sellers Representative elects to prepare the Final Closing Statement in accordance with the immediately preceding sentence, then all subsequent references in this Section 2.4 to the Buyer, on the Seller Representative shall retain an independent public accounting firm to provide an audit or other review of the Target Entities’ books and recordsone hand, review the calculation of the Estimated Purchase Price and the Interim Closing Statement and make any adjustments necessary thereto consistent with the provisions of this Section 2.6Sellers Representative, the determination of such accounting firm being conclusive and binding on the Parties; providedother hand, howeverwill be deemed to be references to the Sellers Representative, that on the Seller Representative reserves any one hand, and all the Buyer, on the other rights granted to it in this Agreement. The engagement fees of such accounting firm shall be borne as set forth in Section 2.6(d)hand, respectively.