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 ninety (90) 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 Accounting Principles. For the avoidance of doubt, and without in any way limiting Section 11.03(l), none of the Closing Net Working Capital, the Closing Cash, the Closing Indebtedness or the Transaction Expenses shall take into account in any manner NuPark or any of NuPark’s Subsidiaries. If Buyer fails to timely deliver the Closing Balance Sheet and the Closing Statement, in accordance with this Section 1.08(a), then the Representative may, at its election, either (i) treat the estimates delivered pursuant to Section 1.05(a) as the Closing Balance Sheet and the Closing Statement and the Closing Net Working Capital, Closing Cash, Closing Indebtedness and Transaction Expenses, as final and binding upon the Parties or (ii) treat such estimates as the Closing Balance Sheet and Closing Statement delivered by Buyer pursuant to this Section 1.08(a), in which case, Seller shall be entitled to all dispute and other rights set forth in the remainder of this Section 1.08 with respect thereto.
(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 perio...
Post-Closing Merger Consideration Adjustment. Following the Closing Date, the Estimated Merger Consideration will be adjusted as set forth below:
(a) Buyer will prepare and deliver to the Representative within ninety (90) days after the Closing Date (i) an unaudited balance sheet of the Company and its Subsidiaries as of the Adjustment Calculation Time (for the avoidance of doubt, taking into account any actions taken pursuant to Section 5.01(d)) (the “Closing Balance Sheet”) and (ii) a statement (the “Closing Statement”) setting forth a calculation of (1) Closing Net Working Capital, (2) Closing Cash, (3) 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 on the Estimated Closing Statement. The Closing Balance Sheet and Closing Statement will be prepared, and Closing Net Working Capital, Closing Cash, Closing Indebtedness, and Transaction Expenses will be determined, in each case, in good faith, in accordance with the Accounting Principles. The Closing Balance Sheet and Closing Statement (i) will not include any changes in assets or liabilities as a result of purchase or other accounting adjustments or other changes arising from or resulting as a consequence of the Transactions, and (ii) will be based on facts and circumstances as they exist as of the Adjustment Calculation Time and will exclude the effect of any act, decision or event occurring on or after the Closing. 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 Target Net Working Capital, and such processes are not intended to permit the introduction of different judgments, accounting methods, policies, principles, practices, procedures, reserves classifications or estimation methodologies for the purpose of calculating Final Merger Consideration than were used in the calculation of Estimated Merger Consideration.
(b) On or prior to the thirtieth (30th) day following Buyer’s delivery of the Closing Balance Sheet and the Closing Statement, the Representative will give Buyer a written notice stating in reasonable detail the Representative’s objections (a “Notice of Disag...
Post-Closing Merger Consideration Adjustment. (a) Within ninety (90) days after the Closing Date, the Surviving Corporation shall prepare and deliver a statement (the “Initial Closing Statement”) to Sellers’ Representative setting forth (i) the Surviving Corporation’s determination of Cash as of the close of business on the Closing Date (the “Closing Date Cash”), (ii) all Indebtedness of the Company as of the close of business on the Closing Date (the “Closing Date Indebtedness”), (iii) Current Liabilities as of the close of business on the Closing Date (the “Closing Date Current Liabilities”), (iv) the Seller Transaction Expenses (the “Closing Date Seller Transaction Expenses”) and (v) the Surviving Corporation’s calculation of the Merger Consideration. The Initial Closing Statement (including the Closing Date Cash, Closing Date Indebtedness, Closing Date Current Liabilities and Closing Date Seller Transaction Expenses) shall be prepared and calculated in accordance with GAAP (and, to the extent not inconsistent with GAAP, the past practice of the Company) or as provided in the definitions of this Agreement. If the Surviving Corporation does not deliver the Initial Closing Statement to Sellers’ Representative within one hundred twenty (120) days following the Closing Date, then, at the election of Sellers’ Representative in its sole discretion, either (A) the Estimated Cash, Estimated Indebtedness, Estimated Current Liabilities and Estimated Seller Transaction Expenses shall be deemed the Actual Cash, Actual Indebtedness, Actual Current Liabilities and Actual Seller Transaction Expenses and shall be considered final for all purposes hereunder or (B) Sellers’ Representative shall retain (with the cost borne as set forth in Section 1.10(c)) the CPA Firm to review the calculations of Estimated Cash, Estimated Indebtedness, Estimated Current Liabilities and Estimated Seller Transaction Expenses and make any adjustments necessary thereto consistent with the provisions of this Section 1.10, and the determination of the CPA Firm shall be deemed agreed, final and binding on the parties.
(b) Sellers’ Representative, on behalf of the Stockholders, shall complete its review of the Initial Closing Statement within thirty (30) days after the Surviving Corporation’s delivery thereof to Sellers’ Representative. During such review period, the Surviving Corporation shall provide Sellers’ Representative with access to all books and records reasonably requested by Sellers’ Representative to review the Initial Closing S...
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 8 and (2) if the Parent Final Balance Sheet Reduction Amount is less than the Holdback Amount, then, subject to Section 8.4, 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 in accordance with Section 2.6(b)(i)(C), Section 2.7(d)(iv) 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 8.4, Parent shall pay or cause to be paid to the Securityholders the Parent Final Balance Sheet Adjustment Payment Amount (if any) and the Holdback Amount in accordance with Section 2.6(b)(i)(C), Section 2.7(d)(iv) and Section 2.12.
(iii) Amounts to be paid pursuant to subclause 2.13(b)(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 (i) or (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.
(v) Representative’s Holdback Expenses, if any, in an amount not to exceed $10,000, shall be paid out of the Holdback Amount prior to any disposition of any portion of the Holdback Amount under Section 2.13(b)(i) or (ii).
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. 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, Xxxxxx 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. 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) 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
