Post-Closing Payment. (a) In the event that the Final Closing Payment as finally determined pursuant to subsections (b) and (c) of this Section 2.5 is greater than the Closing Payment, Buyer shall pay Seller an amount in cash equal to the difference within five (5) Business Days after the final determination thereof. In the event that the Final Closing Payment as finally determined pursuant to subsections (b) and (c) of this Section 2.5 is less than the Closing Payment, Seller shall, and Parent shall cause Seller to, pay Buyer an amount in cash equal to the difference within five (5) Business Days after the final determination thereof. Any payments required to be made by either party pursuant to this Section 2.5(a) shall (i) be made by wire transfer of immediately available funds and (ii) include interest on the amount required to be paid at the Applicable Rate, compounded annually on the basis of a year of 365 days, from (and including) the Closing Date to (but excluding) the date such payment is made. (b) No later than one hundred twenty (120) days after the Closing Date, Buyer shall deliver to Parent a statement (the “Closing Statement”) consisting of (i) a balance sheet of the Company as of the Effective Time, prepared in accordance with the Specified Accounting Principles and taking into account the transactions contemplated by this Agreement that are to occur at or immediately prior to the Closing, (ii) a calculation (in reasonable detail) of the amount of the Adjusted Statutory Book Value, the Adjusted Statutory Book Value Target, each as of the Effective Time, Closing Indebtedness and Transaction Expenses each as of the Closing Date, derived from such balance sheet (provided that for purposes of such calculation, the Adjusted Statutory Book Value will reflect any payment of Closing Indebtedness or Transaction Expenses made by the Company between the Effective Time and the Closing) and (iii) the items of adjustment to the Base Price to arrive at the Closing Payment pursuant to Section 2.4(b) based on the Closing Statement as of the Effective Time (the amount based thereon, the “Final Closing Payment”). The Closing Statement shall be (i) in the same format as the Pro Forma Closing Statement; (ii) accompanied by work papers and other supporting documentation with respect to the calculation of the amounts set forth thereon; and (iii) accompanied by a written certificate of the chief financial or accounting officer of the Company certifying that the Closing Statement (x) was prepared in good faith, (y) is derived from the Books and Records, and (z) was prepared in accordance with the Specified Accounting Principles and this Section 2.5. In furtherance of such preparation, Parent will make reasonably available the employees of Parent and its Affiliates to Buyer and Buyer’s Representatives to the extent such employees are responsible for or knowledgeable about the preparation of the Closing Statement and shall provide access to all documentation, records and other information of Parent and its Affiliates as Buyer or any of its Representatives may reasonably request to the extent reasonably relevant to the preparation of the Closing Statement; provided, that such access does not unreasonably interfere with the conduct of the business of Parent and its Affiliates. (c) (i) Parent shall have forty-five (45) days from the date on which the Closing Statement is delivered to it to review the calculations of the Adjusted Statutory Book Value, Adjusted Statutory Book Value Target, Closing Indebtedness and Transaction Expenses and the Final Closing Payment based thereon (the “Review Period”). In furtherance of such review, Buyer and the Company will make reasonably available the employees of Buyer, the Company and Abacus to Parent and Parent’s Representatives to the extent such employees are responsible for or knowledgeable about the preparation of the Closing Statement and shall provide access to all documentation, records and other information of Buyer, the Company and Abacus as Parent or any of its Representatives may reasonably request to the extent reasonably relevant to the preparation of the Closing Statement; provided, that such access does not unreasonably interfere with the conduct of the business of Buyer, the Company or Abacus.
Appears in 1 contract
Samples: Stock Purchase Agreement
Post-Closing Payment. (a) In The True-Up Amount shall be calculated based on the event that determination of the Adjusted Final Closing Payment Amount as finally determined pursuant to set forth in subsections (b) and (c) of this Section 2.5 2.5. If the True-Up Amount is greater than the Closing Paymenta positive number, Buyer shall pay Seller an amount in cash equal to and the difference Minority Shareholders, or their respective designees, their Pro Rata Percentages of the True-Up Amount within five (5) Business Days after the final determination thereof. In If the event that the Final Closing Payment as finally determined pursuant to subsections True-Up Amount is a negative number, (b1) and (c) of this Section 2.5 is less than the Closing Payment, Seller shall, and Parent shall cause Seller to, pay Buyer an amount in cash equal to the difference absolute value of the True-Up Amount within five (5) Business Days after the final determination thereof, and (2) the Seller may recoup the Minority Shareholders’ Pro Rata Percentages of such True-Up Amount from the Minority Shareholders; provided that, in the sole discretion of Buyer, such amount may be paid from the Escrowed Funds, in which case the Buyer and Seller shall jointly instruct the Escrow Agent by executing and delivering a certificate to the Escrow Agent to pay to Buyer such amount from the Escrowed Funds. Any payments required to be made by either party pursuant to this Section 2.5(a) shall (i) be made by wire transfer of immediately available funds and (ii) include interest on the amount required to be paid at the Applicable Rate, compounded annually on the basis of a year of 365 days, from (and including) the Closing Date to (but excluding) the date such payment is made.
(b) No later than one hundred twenty ninety (12090) days after the Closing Date, Buyer shall deliver to Parent Seller a statement (the “Closing Updated Adjustment Statement”) consisting of (i) a balance sheet the proposed Final Financial Statements and Buyer's calculations of the Final Adjustment, the DAC Adjustment, the RBC Adjustment, the Company Distribution Adjustment, the Company Transaction Expenses, all as of the Effective Adjustment Time, prepared in accordance with the Specified Accounting Principles and taking into account the transactions contemplated by this Agreement that are to occur at or immediately prior to the Closing, (ii) a calculation (in reasonable detail) of the amount of the Adjusted Statutory Book Value, the Adjusted Statutory Book Value Target, each as of the Effective Time, Closing Indebtedness and Transaction Expenses each as of the Closing Date, derived from such balance sheet (provided that for purposes of such calculation, the Adjusted Statutory Book Value will reflect any payment of Closing Indebtedness or Transaction Expenses made by the Company between the Effective Time and the Closing) and (iii) the items of adjustment to the Base Price to arrive at the Closing Payment pursuant to Section 2.4(b) based on the Closing Statement as of the Effective Time (the amount Final Amount based thereon, the “Final Closing Payment”). The Closing Updated Adjustment Statement shall be (i) in the same format as form of the Pro Forma Closing Statement; Example Calculation, (ii) accompanied by work papers and other supporting documentation with respect to the calculation of the amounts set forth thereon; and (iii) accompanied by a written certificate of the chief financial or accounting officer of the Company certifying that the Closing Updated Adjustment Statement (x) was prepared in good faith, (y) is derived from based upon the Books and Records, and (z) was prepared in accordance with the Specified Accounting Principles and this Section 2.5Principles. In furtherance of such preparation, Parent Seller will make reasonably available the employees of Parent Seller and its Affiliates to Buyer and Buyer’s its Representatives to the extent such employees are responsible for or knowledgeable about the preparation of the Closing Updated Adjustment Statement and shall provide access to all documentation, records and other information of Parent Seller and its Affiliates as Buyer or any of its Representatives may reasonably request to the extent reasonably relevant to the preparation of the Closing Updated Adjustment Statement; provided, that such access does not unreasonably interfere with the conduct of the business of Parent Seller and its Affiliates.
(cii) If Seller believes that the Updated Adjustment Statement (iincluding any amount or computation set forth therein) Parent shall have forty-five (45) days contains mathematical errors, deviates from the date Example Calculation or was not prepared in accordance with the Specified Accounting Principles, Seller may, on which or prior to the Closing Statement is delivered to it to review the calculations last day of the Adjusted Statutory Book ValueReview Period, Adjusted Statutory Book Value Targetdeliver a notice to Buyer setting forth, Closing Indebtedness and Transaction Expenses in reasonable detail, each such disputed item or amount and the Final Closing Payment based thereon basis for Seller’s disagreement therewith (the “Review PeriodDispute Notice”). In furtherance The Dispute Notice shall set forth, with respect to each disputed item, Seller’s position as to the correct amount or computation that should have been included in the Updated Adjustment Statement and as to the Adjusted Final Amount.
(iii) If no Dispute Notice is received by Buyer with respect to any item in the Updated Adjustment Statement on or prior to the last day of the Review Period, the amount or computation with respect to such item as set forth in the Updated Adjustment Statement, including the RBC Adjustment, shall be deemed accepted by Seller, whereupon the amount or computation of such reviewitem or items shall be final and binding on the parties. For purposes of this Section 2.5, Buyer “final and binding” shall mean that the Company will make reasonably available applicable determination shall have the employees same preclusive effect for all purposes as a determination embodied in a final judgment, no longer subject to appeal and entered by a Court of Buyer, competent jurisdiction after full and fair litigation on the Company and Abacus to Parent and Parent’s Representatives to the extent such employees are responsible for or knowledgeable about the preparation of the Closing Statement and shall provide access to all documentation, records and other information of Buyer, the Company and Abacus as Parent or any of its Representatives may reasonably request to the extent reasonably relevant to the preparation of the Closing Statement; provided, that such access does not unreasonably interfere with the conduct of the business of Buyer, the Company or Abacusmerits.
Appears in 1 contract
Samples: Purchase Agreement (Horace Mann Educators Corp /De/)
Post-Closing Payment. (a) In the event that the Final Closing Payment as finally determined pursuant to subsections (b) and (c) of this Section 2.5 is greater No later than the Closing Payment, Buyer shall pay Seller an amount in cash equal to the difference within five (5) Business Days after a binding determination of Net Working Capital, Closing Cash, Closing Debt and Transaction Expenses, and the final determination thereof. In resulting Final Adjustment Amount, has been made in accordance with Section 3.02:
(i) If the event that Closing Shareholder Payment is greater than the Final sum of (A) Sixty-One Million and No/100 Dollars ($61,000,000.00) plus (B) the amount of Closing Payment Cash, plus (C) Net Working Capital minus Target Working Capital, minus (D) Closing Debt, minus (E) Transaction Expenses, minus (F) the Escrow Deposit, then an amount equal to such excess shall be released to Buyer from the Escrow Account to such account or accounts as finally determined pursuant is designated in writing by Buyer; and
(ii) If the sum of (A) Sixty-One Million and No/100 Dollars ($61,000,000.00) plus (B) the amount of Closing Cash, plus (C) Net Working Capital minus Target Working Capital, minus (D) Closing Debt, minus (E) Transaction Expenses, minus (f) the Escrow Deposit is greater than the Closing Shareholder Payment, then Buyer shall make a payment to subsections Agent (for distribution to the Shareholders by the Agent in accordance with their Pro Rata Proportions) in an amount equal to the amount of such excess to such account or accounts as is designated in writing by Agent;
(b) The amount due and owing pursuant to (ca) above shall be referred to herein as the “Final Adjustment Amount.” If the Final Adjustment Amount is owing to Buyer, Buyer and Agent shall execute and deliver such instructions and other documents as are necessary to cause the Escrow Agent to release to Buyer the Final Adjustment Amount and to Agent any portion of this Section 2.5 the Working Capital Escrow Amount remaining after deducting the Final Adjustment Amount and any fees of the Chosen Firm to be paid by the Shareholders. If the Final Adjustment Amount is less than the Closing Payment, Seller shall, and Parent shall cause Seller to, pay Buyer an amount in cash equal owing to the difference within five (5Agent, then, in addition to making the payment contemplated by Section 3.03(a)(ii) Business Days after above, Buyer shall execute and deliver such instructions and other documents as are necessary to cause the final determination thereofEscrow Agent to release to Agent the entire Working Capital Escrow Amount, less any fees of the Chosen Firm to be paid by Shareholders. Any payments required amounts released or paid to be made by either party Agent pursuant to this Section 2.5(a) 3.03 shall (i) be made distributed by wire transfer of immediately available funds and (ii) include interest on Agent to the amount required to be paid at the Applicable Rate, compounded annually on the basis of a year of 365 days, from (and including) the Closing Date to (but excluding) the date such payment is made.
(b) No later than one hundred twenty (120) days after the Closing Date, Buyer shall deliver to Parent a statement (the “Closing Statement”) consisting of (i) a balance sheet of the Company as of the Effective Time, prepared Shareholders in accordance with the Specified Accounting Principles and taking into account the transactions contemplated by this Agreement that are to occur at or immediately prior to the Closing, (ii) a calculation (in reasonable detail) of the amount of the Adjusted Statutory Book Value, the Adjusted Statutory Book Value Target, each as of the Effective Time, Closing Indebtedness and Transaction Expenses each as of the Closing Date, derived from such balance sheet (provided that for purposes of such calculation, the Adjusted Statutory Book Value will reflect any payment of Closing Indebtedness or Transaction Expenses made by the Company between the Effective Time and the Closing) and (iii) the items of adjustment to the Base Price to arrive at the Closing Payment pursuant to Section 2.4(b) based on the Closing Statement as of the Effective Time (the amount based thereon, the “Final Closing Payment”). The Closing Statement shall be (i) in the same format as the their Pro Forma Closing Statement; (ii) accompanied by work papers and other supporting documentation with respect to the calculation of the amounts set forth thereon; and (iii) accompanied by a written certificate of the chief financial or accounting officer of the Company certifying that the Closing Statement (x) was prepared in good faith, (y) is derived from the Books and Records, and (z) was prepared in accordance with the Specified Accounting Principles and this Section 2.5. In furtherance of such preparation, Parent will make reasonably available the employees of Parent and its Affiliates to Buyer and Buyer’s Representatives to the extent such employees are responsible for or knowledgeable about the preparation of the Closing Statement and shall provide access to all documentation, records and other information of Parent and its Affiliates as Buyer or any of its Representatives may reasonably request to the extent reasonably relevant to the preparation of the Closing Statement; provided, that such access does not unreasonably interfere with the conduct of the business of Parent and its AffiliatesRata Proportions.
(c) (i) Parent shall have forty-five (45) days from the date on which the Closing Statement is delivered to it to review the calculations of the Adjusted Statutory Book Value, Adjusted Statutory Book Value Target, Closing Indebtedness and Transaction Expenses and the Final Closing Payment based thereon (the “Review Period”). In furtherance of such review, Buyer and the Company will make reasonably available the employees of Buyer, the Company and Abacus to Parent and Parent’s Representatives to the extent such employees are responsible for or knowledgeable about the preparation of the Closing Statement and shall provide access to all documentation, records and other information of Buyer, the Company and Abacus as Parent or any of its Representatives may reasonably request to the extent reasonably relevant to the preparation of the Closing Statement; provided, that such access does not unreasonably interfere with the conduct of the business of Buyer, the Company or Abacus.
Appears in 1 contract
Samples: Purchase Agreement (Forterra, Inc.)
Post-Closing Payment. (a) In If the event that the Final Closing Payment Adjustment Amount, as finally determined pursuant to subsections (b) and (c) of this Section 2.5 is greater than 3.04, exceeds the Closing PaymentEstimated Adjustment Amount, Buyer shall pay Seller an amount in cash equal to the difference Purchaser shall, within five (5) 15 Business Days after the Closing Adjustment Statement becomes final determination thereof. In and binding on the event that the Final Closing Payment as finally determined parties hereto pursuant to subsections (b) and (c) of this Section 2.5 is less than the Closing Payment, Seller shall, and Parent shall cause Seller to3.04, pay Buyer an or cause to be paid to Parent (or its designated Subsidiaries) the amount in cash by which the Adjustment Amount exceeds the Estimated Adjustment Amount, plus interest thereon at a rate of interest per annum equal to the difference within five (5) Business Days after the final determination thereof. Any payments required to be made by either party pursuant to this Section 2.5(a) shall (i) be made by wire transfer of immediately available funds and (ii) include interest on the amount required to be paid at the Applicable Prime Rate, compounded annually calculated on the basis of a year the actual number of 365 daysdays elapsed divided by 365, from (and including) the Closing Date to (but excluding) the date such payment of payment. If the Adjustment Amount, as finally determined pursuant to Section 3.04, is made.
(b) No later less than one hundred twenty (120) days the Estimated Adjustment Amount, Parent shall, within 15 Business Days after the Closing DateAdjustment Statement becomes final and binding on the parties hereto pursuant to Section 3.04, Buyer shall deliver pay or cause to Parent be paid to Purchaser (or the Purchaser Designated Subsidiaries) the amount by which the Estimated Adjustment Amount exceeds the Adjustment Amount, plus interest thereon at a statement (rate of interest per annum equal to the “Closing Statement”) consisting of (i) a balance sheet Prime Rate, calculated on the basis of the Company as actual number of days elapsed divided by 365, from the Effective Time, prepared Closing Date to (but excluding) the date of payment. Any payment made pursuant to this Section 3.05 shall be made by wire transfer in accordance with the Specified Accounting Principles and taking into account the transactions contemplated by this Agreement that are immediately available funds to occur one or more accounts designated in writing at or immediately least two Business Days prior to such payment by the Closingparty entitled to receive such payment. Any payments made pursuant to this Section 3.05 (except for any stated interest) shall be treated as an adjustment to the Purchase Price paid for the Transferred US Entity Common Shares or the Transferred Canadian Entity Common Shares (as the case may be) for all applicable Tax purposes, except as otherwise required by applicable Law or pursuant to a final determination (ii) a calculation (in reasonable detailwithin the meaning of Section 1313(a) of the amount of the Adjusted Statutory Book ValueCode) or similar determination under applicable state, the Adjusted Statutory Book Value Target, each as of the Effective Time, Closing Indebtedness and Transaction Expenses each as of the Closing Date, derived from such balance sheet (provided that for purposes of such calculation, the Adjusted Statutory Book Value will reflect any payment of Closing Indebtedness local or Transaction Expenses made by the Company between the Effective Time and the Closing) and (iii) the items of adjustment to the Base Price to arrive at the Closing Payment pursuant to Section 2.4(b) based on the Closing Statement as of the Effective Time (the amount based thereon, the “Final Closing Payment”). The Closing Statement shall be (i) in the same format as the Pro Forma Closing Statement; (ii) accompanied by work papers and other supporting documentation with respect to the calculation of the amounts set forth thereon; and (iii) accompanied by a written certificate of the chief financial or accounting officer of the Company certifying that the Closing Statement (x) was prepared in good faith, (y) is derived from the Books and Records, and (z) was prepared in accordance with the Specified Accounting Principles and this Section 2.5. In furtherance of such preparation, Parent will make reasonably available the employees of Parent and its Affiliates to Buyer and Buyer’s Representatives to the extent such employees are responsible for or knowledgeable about the preparation of the Closing Statement and shall provide access to all documentation, records and other information of Parent and its Affiliates as Buyer or any of its Representatives may reasonably request to the extent reasonably relevant to the preparation of the Closing Statement; provided, that such access does not unreasonably interfere with the conduct of the business of Parent and its Affiliatesnon-U.S. Tax Law.
(c) (i) Parent shall have forty-five (45) days from the date on which the Closing Statement is delivered to it to review the calculations of the Adjusted Statutory Book Value, Adjusted Statutory Book Value Target, Closing Indebtedness and Transaction Expenses and the Final Closing Payment based thereon (the “Review Period”). In furtherance of such review, Buyer and the Company will make reasonably available the employees of Buyer, the Company and Abacus to Parent and Parent’s Representatives to the extent such employees are responsible for or knowledgeable about the preparation of the Closing Statement and shall provide access to all documentation, records and other information of Buyer, the Company and Abacus as Parent or any of its Representatives may reasonably request to the extent reasonably relevant to the preparation of the Closing Statement; provided, that such access does not unreasonably interfere with the conduct of the business of Buyer, the Company or Abacus.
Appears in 1 contract
Post-Closing Payment. (a) In the event that the Final Closing Payment as finally determined pursuant to subsections (b) and (c) of this Section 2.5 is greater than the Closing Payment, Buyer shall pay Seller an amount in cash equal to the difference within five (5) Business Days after the final determination thereof. In the event that the Final Closing Payment as finally determined pursuant to subsections (b) and (c) of this Section 2.5 is less than the Closing Payment, Seller shall, and Parent shall cause Seller to, pay Buyer an amount in cash equal to the difference within five (5) Business Days after the final determination thereof. Any payments required to be made by either party pursuant to this Section 2.5(a) shall (i) be made by wire transfer of immediately available funds and (ii) include interest on the amount required to be paid at the Applicable Rate, compounded annually on the basis of a year of 365 days, from (and including) the Closing Date to (but excluding) the date such payment is made.
(b) No later than one hundred twenty (120) days after the Closing Date, Buyer shall deliver to Parent a statement (the “Closing Statement”) consisting of (i) a balance sheet of the Company as of the Effective Time, prepared in accordance with the Specified Accounting Principles and taking into account the transactions contemplated by this Agreement that are to occur at or immediately prior to the Closing, (ii) a calculation (in reasonable detail) of the amount of the Adjusted Statutory Book Value, the Adjusted Statutory Book Value Target, each as of the Effective Time, Closing Indebtedness and Transaction Expenses each as of the Closing Date, derived from such balance sheet (provided that for purposes of such calculation, the Adjusted Statutory Book Value will reflect any payment of Closing Indebtedness or Transaction Expenses made by the Company between the Effective Time and the Closing) and (iii) the items of adjustment to the Base Price to arrive at the Closing Payment pursuant to Section 2.4(b) based on the Closing Statement as of the Effective Time (the amount based thereon, the “Final Closing Payment”). The Closing Statement shall be (i) in the same format as the Pro Forma Closing Statement; (ii) accompanied by work papers and other supporting documentation with respect to the calculation of the amounts set forth thereon; and (iii) accompanied by a written certificate of the chief financial or accounting officer of the Company certifying that the Closing Statement (x) was prepared in good faith, (y) is derived from the Books and Records, and (z) was prepared in accordance with the Specified Accounting Principles and this Section 2.5. In furtherance of such preparation, Parent will make reasonably available the employees of Parent and its Affiliates to Buyer and Buyer’s Representatives to the extent such employees are responsible for or knowledgeable about the preparation of the Closing Statement and shall provide access to all documentation, records and other information of Parent and its Affiliates as Buyer or any of its Representatives may reasonably request to the extent reasonably relevant to the preparation of the Closing Statement; provided, that such access does not unreasonably interfere with the conduct of the business of Parent and its Affiliates.
(c) (i) Parent shall have forty-five (45) days from the date on which the Closing Statement is delivered to it to review the calculations of the Adjusted Statutory Book Value, Adjusted Statutory Book Value Target, Closing Indebtedness and Transaction Expenses and the Final Closing Payment based thereon (the “Review Period”). In furtherance of such review, Buyer and the Company will make reasonably available the employees of Buyer, the Company and Abacus to Parent and Parent’s Representatives to the extent such employees are responsible for or knowledgeable about the preparation of the Closing Statement and shall provide access to all documentation, records and other information of Buyer, the Company and Abacus as Parent or any of its Representatives may reasonably request to the extent reasonably relevant to the preparation of the Closing Statement; provided, that such access does not unreasonably interfere with the conduct of the business of Buyer, the Company or Abacus.to
Appears in 1 contract
Samples: Stock Purchase Agreement (Horace Mann Educators Corp /De/)