Post-Closing Adjustments As soon as practicable after the Closing, but in no event later than one hundred eighty (180) days thereafter, Seller shall prepare and deliver to Purchaser a final settlement statement (the “Final Settlement Statement”) setting forth each adjustment or payment that was not finally determined as of the Closing and showing the calculation of such adjustments and the resulting Final Purchase Price. Seller shall make its workpapers and other information available to Purchaser to review in order to confirm the adjustments shown on Seller’s draft. As soon as practicable after receipt of the Final Settlement Statement, but in no event later than sixty (60) days thereafter, Purchaser shall deliver to Seller a written report containing any changes that Purchaser proposes to make to the Final Settlement Statement. Any failure by Purchaser to deliver to Seller the written report detailing Purchaser’s proposed changes to the Final Settlement Statement within sixty (60) days following Purchaser’s receipt of the Final Settlement Statement shall be deemed an acceptance by Purchaser of the Final Settlement Statement as submitted by Seller. The parties shall agree with respect to the changes proposed by Purchaser, if any, no later than sixty (60) days after Seller receives from Purchaser the written report described above containing Purchaser’s proposed changes. If the Purchaser and the Seller cannot then agree upon the Final Settlement Statement, the determination of the amount of the Final Settlement Statement shall be submitted to a mutually agreed firm of independent public accountants (the “Accounting Firm”). The determination by the Accounting Firm shall be conclusive and binding on the parties hereto and shall be enforceable against any party hereto in any court of competent jurisdiction. Any costs and expenses incurred by the Accounting Firm pursuant to this Section 12.1 shall be borne by the Seller and the Purchaser equally. The date upon which such agreement is reached or upon which the Final Purchase Price is established, shall be herein called the “Final Settlement Date.” In the event
(a) the Final Purchase Price is more than the Estimated Final Purchase Price, Purchaser shall pay to Seller the amount of such difference, or
(b) the Final Purchase Price is less than the Estimated Final Purchase Price, Seller shall pay to Purchaser the amount of such difference, in either event by wire transfer in immediately available funds. Payment by Purchaser or Seller, as the case may be, shall be within five (5) days of the Final Settlement Date.
Post-Closing Adjustment (a) Promptly after the Closing Date, and in any event not later than twenty (20) days following the Closing Date, Seller shall prepare and deliver to Purchaser a statement (the “Post-Closing Statement”), setting forth Seller’s good faith calculation of (i) Closing Working Capital, (ii) Closing Indebtedness, (iii) Transaction Expenses, (iv) Closing Cash, and (v) the resulting calculation of the Purchase Price, together with reasonable supporting detail and documentation. The Post-Closing Statement shall be accompanied by a certificate of an executive officer of Seller stating that the Post-Closing Statement has been prepared in accordance with this Agreement, including the Accounting Principles (to the extent applicable) and the definitions set forth herein. Purchaser shall give Seller and its Representatives reasonable access, upon reasonable notice and during normal business hours, to the premises, books and records, and appropriate personnel of the Business, the Conveyed Companies and Purchaser for purposes of the preparation of the Post-Closing Statement in accordance with this Section 2.4(a), and Purchaser shall instruct its personnel (including the Transferred Employees) and Representatives to reasonably cooperate with, and promptly and completely respond to all reasonable requests and inquiries of, Seller and its Representatives. Upon execution of a customary access letter if required by the applicable Party’s outside accountants, each Party and its Representatives shall have reasonable access, upon reasonable notice and during normal business hours, to all relevant work papers, schedules, memoranda and other documents prepared by the other Party or its Representatives (including its outside accountants) to the extent related to the calculation of the Closing Working Capital, Closing Cash, Closing Indebtedness and/or Transaction Expenses in any respect. Following delivery of the Post-Closing Statement, Seller shall afford Purchaser and its Representatives reasonable access, upon reasonable notice and during normal business hours, to Sellers’ and its Affiliates’ appropriate personnel involved in the preparation of the Post-Closing Statement.
(b) Purchaser and Purchaser’s accountants and financial and other advisors may make inquiries of Seller and/or Seller’s accountants regarding questions concerning or disagreements with the Post-Closing Statement arising in the course of Purchaser’s review, and Seller shall instruct its personnel and Representatives to reasonably cooperate with, and promptly and completely respond to all reasonable requests and inquiries of, Purchaser and its Representatives. Purchaser shall complete its review of the Post-Closing Statement within seventy-five (75) days after the delivery thereof to Purchaser. In no event later than the conclusion of such seventy-five (75) day period, Purchaser may submit to Seller a letter regarding its concurrence or disagreement with the accuracy of the Post-Closing Statement; provided that any such letter must specify (i) the items of the Post-Closing Statement with which Purchaser disagrees, (ii) the adjustments that Purchaser proposes to be made to the Post-Closing Statement (each, a “Disputed Item”) and (iii) the specific amount of such disagreement and all reasonable supporting detail and documentation and calculations (the “Purchaser Objection Statement”); and provided, further, that Purchaser may only disagree with the Post-Closing Statement to the extent Purchaser claims Seller did not prepare the Post-Closing Statement in a manner consistent with the Accounting Principles (to the extent applicable) or the terms of this Agreement (including the definitions set forth herein). If Purchaser does not deliver a Purchaser Objection Statement before the conclusion of such seventy-five (75) day period, the Post-Closing Statement shall be final and binding upon the Parties and Purchaser shall be deemed to have agreed with all items and amounts contained in the Post-Closing Statement. If Purchaser does deliver a Purchaser Objection Statement, following such delivery, Seller and Purchaser shall attempt in good faith to resolve promptly any disagreement as to the computation of any item in the Post-Closing Statement. Any items as to which there is no disagreement shall be deemed agreed. If a resolution of such disagreement has not been effected within ten (10) days (or longer, as mutually agreed by the Parties) after delivery of the Purchaser Objection Statement, then Seller and Purchaser shall execute a customary engagement letter with the Accountant and submit any unresolved Disputed
Closing Adjustments (a) No later than ten (10) Business Days prior to the Closing Date, the Target Company will deliver to Holdings the Target Company’s calculation of the Merger Consideration, including the Company’s good-faith estimate of each of: (i) the Closing Working Capital and the resulting Working Capital Adjustment, (ii) the amount of outstanding Indebtedness as of the Closing and the resulting Indebtedness Adjustment, and (iii) the total amount of Transaction Expenses that are incurred and unpaid by the Target Company as of the Closing and the resulting Transaction Expense Adjustment, in reasonable detail (the “Closing Statement”). Such estimates will be based on the Target Company’s books and records, the best estimate of the management of the Target Company and other information then available and will be prepared in accordance with GAAP. Holdings will have the right to review the Closing Statement and such supporting documentation or data of the Target Company as Holdings may reasonably request. If Holdings does not agree with the Closing Statement, the Target Company and Holdings will negotiate in good faith to mutually agree on an acceptable Closing Statement no later than five (5) Business Days prior to the Closing Date, and the Target Company will consider in good faith any proposed comments or changes that Holdings may reasonably suggest; provided, however, that the failure to include in the Closing Statement any changes proposed by Holdings, or the acceptance by Holdings of the Closing Statement, or the consummation of the Closing, will not limit or otherwise affect Holdings’ remedies under this Agreement, including Holdings’ right to include such changes or other changes in the Closing Statement, or constitute an acknowledgment by Holdings of the accuracy of the Closing Statement; provided, further, that the failure of Holdings and the Seller Representative to reach such mutual agreement will not give any party the right to terminate this Agreement or otherwise fail to close the transactions contemplated hereunder.
Closing and Closing Deliveries 27 8.1 Closing...............................................................................27 8.2
Closing Adjustment (a) The Company shall deliver to Buyer no later than five (5) Business Days prior to the Closing Date a statement that sets forth the Company’s good faith estimate of (i) the balance sheet of the Company as of the Measurement Time (the “Estimated Balance Sheet”), which shall be prepared in accordance with the Accounting Principles; (ii) the Closing Date Net Working Capital and, based thereon, the Adjustment Amount; (iii) the Company Cash and, based thereon, the amount of the Company Cash Deficiency (if any), (iv) the Closing Indebtedness Amount, (v) the Company Transaction Expenses and, based thereon, (vi) the Purchase Price (the “Estimated Purchase Price”) and the Cash Consideration (the “Estimated Cash Consideration”), together with reasonably detailed calculations demonstrating each component thereof and such documentation and access to the Company’s Books and Records as is reasonably requested by Buyer to permit Buyer to review the calculation of amounts set forth therein. Buyer shall have the ability to review and provide comments to (i) – (vi) above and the Company shall consider in good faith Buyer’s comments.
(b) No later than ninety (90) days after the Closing Date, Buyer shall prepare and deliver to the Members’ Representative a statement that sets forth Buyer’s calculation of (i) the balance sheet of the Company as of the Measurement Time (the “Closing Date Balance Sheet”) which shall be prepared in accordance with the Accounting Principles, (ii) the Closing Date Net Working Capital and, based thereon, the Adjustment Amount, (iii) the Company Cash and, based thereon, the amount of the Company Cash Deficiency (if any), (iv) the Closing Indebtedness Amount, (v) the Company Transaction Expenses and, based thereon, (vi) the Purchase Price and the Cash Consideration, together with reasonably detailed supporting calculations demonstrating each component thereof (the “Closing Date Statement”).
(c) The Members’ Representative shall have thirty (30) days after delivery of the Closing Date Statement in which to notify Buyer in writing (such notice, a “Closing Date Dispute Notice”) of any discrepancy in, or disagreement with, the items reflected on the Closing Date Statement (and specifying the amount of each item in dispute and setting forth in reasonable detail the basis for each such discrepancy or disagreement), and upon agreement by Buyer regarding the adjustment requested by the Members’ Representative, an appropriate adjustment shall be made thereto. If the Members’ Representative does not deliver a Closing Date Dispute Notice to Buyer during such thirty (30)-day period, the Closing Date Statement shall be deemed to be accepted in the form presented to the Members’ Representative. If the Members’ Representative timely delivers a Closing Date Dispute Notice and Buyer and the Members’ Representative do not agree, within thirty (30) days after timely delivery of the Closing Date Dispute Notice, to resolve any discrepancy or disagreement therein, either the Members’ Representative or Buyer may submit the discrepancy or disagreement for review and final determination by the Independent Accounting Firm, it being understood that in making such determination, the Independent Accounting Firm shall be functioning as an expert and not as an arbitrator. The review by the Independent Accounting Firm shall be limited solely to the discrepancies and disagreements set forth in the Closing Date Dispute Notice and a single written submission to the Independent Accounting Firm by each of Buyer and the Members’ Representative with respect to such discrepancies and disagreements (which shall also be provided to the other party). The resolution of such discrepancies and disagreements and the determination of the Closing Date Net Working Capital and the resulting Adjustment Amount, the Company Cash and the resulting Company Cash Deficiency (if any), the Closing Indebtedness Amount, and the Company Transaction Expenses by the Independent Accounting Firm shall be (i) in writing, (ii) made in accordance with the Accounting Principles, definitions and relevant provisions of this Agreement, (iii) with respect to any specific discrepancy or disagreement, no greater than the higher amount calculated by Buyer or the Members’ Representative, as the case may be, and no lower than the lower amount calculated by Buyer or the Members’ Representative as the case may be, (iv) made as promptly as practicable after the submission of such discrepancies and disagreements to the Independent Accounting Firm (but in no event later than thirty (30) days after the date of submission), and (v) final and binding upon, and non-appealable by, the parties hereto and their respective successors and assigns for all purposes hereof, and not subject to collateral attack for any reason absent manifest error or fraud. The fees, costs and expenses of the Independent Accounting Firm shall be allocated to and borne by Buyer and the Members (in accordance with their respective Purchase Price Escrow Pro Rata Portions, which may be paid out of the Representative Expense Fund to the extent thereof) based on the inverse of the percentage that the Independent Accounting Firm’s determination (before such allocation) bears to the total amount of the total items in dispute as originally submitted to the Independent Accounting Firm. For example, should the aggregate value of the items in dispute equal $1,000 and the Independent Accounting Firm awards $600 in favor of the Members’ Representative’s position and $400 in favor of Buyer, then sixty percent (60%) of the costs of its review would be borne by Buyer and forty percent (40%) of such costs would be borne by the Members’ Representative (on behalf of the Members). Within five (5) Business Days of the resolution of all matters set forth in the Closing Date Dispute Notice, by mutual agreement of Buyer and the Members’ Representative or by the Independent Accounting Firm, Buyer shall prepare a revised version of the Closing Date Statement including an updated Purchase Price and Cash Consideration (the “Final Purchase Price”) reflecting such resolution and shall deliver copies thereof to the Members’ Representative, and such revised version (and all amounts set forth therein) shall be considered final and binding on the parties (the “Final Closing Date Statement”).
(d) If the Final Purchase Price exceeds the Estimated Purchase Price, Buyer shall pay to the Payment Agent for distribution to the Members on behalf of TopCo in connection with the Redemption the entire amount of such difference in cash by wire transfer of immediately available funds, and Buyer and the Members’ Representative shall instruct the Escrow Agent to release to the Payment Agent the entire balance of the Purchase Price Escrow Fund, in each case for further distribution to the Members in accordance with the applicable Consideration Spreadsheet and such Members’ Purchase Price Escrow Pro Rata Portions. If the Estimated Purchase Price exceeds the Final Purchase Price, the Members’ Representative (on behalf of each Member) and Buyer shall instruct the Escrow Agent to pay the entire amount of such difference to Buyer out of the Purchase Price Escrow Fund, with any remaining balance of the Purchase Price Escrow Fund to be paid by the Escrow Agent to the Payment Agent (for further distribution to the Members in accordance with the applicable Consideration Spreadsheet and such Members’ Purchase Price Escrow Pro Rata Portions); provided, however, that if the amount payable to Buyer under this Section 1.9(d) exceeds the Purchase Price Escrow Fund (a “Purchase Price Excess”), Buyer shall have the right to require the Members, severally and not jointly, in each case based on their then current respective Purchase Price Escrow Pro Rata Portions to pay to Buyer the Purchase Price Excess in cash by wire transfer of immediately available funds. If the Final Purchase Price is equal to the Estimated Purchase Price, there shall not be any adjustment.
(e) Any payments made pursuant to Section 1.9 shall be treated as an adjustment to the Purchase Price by the parties for Tax purposes, unless otherwise required by Law.
CLOSING AND CLOSING DATE 3.1 The Closing Date shall be December 10, 2004, or such later date as the parties may agree to in writing. All acts necessary to consummation the Reorganization (the "Closing") shall be deemed to take place simultaneously as of 5:00 p.m. (Eastern time) on the Closing Date unless otherwise provided. The Closing shall be held at the offices of Wilmer Cutler Pickering Xxxx xxx Xxxr XXX, 00 Xxxxx Strexx, Boston, Xxxxxxxxxxxxx, xx xx xxxx xxxxx xxxxe as the parties may agree.
3.2 Portfolio securities that are held other than in book-entry form in the name of State Street Bank and Trust Company (the "Acquired Fund Custodian") as record holder for the Acquired Fund shall be presented by the Acquired Fund to Brown Brothers Harriman & Xx. (the "Acxxxxxxx Fund Custodian") for examination no later than three business days preceding the Closing Date. Such portfolio securities shall be delivered by the Acquired Fund to the Acquiring Fund Custodian for the account of the Acquiring Fund on the Closing Date, duly endorsed in proper form for transfer, in such condition as to constitute good delivery thereof in accordance with the custom of brokers, and shall be accompanied by all necessary federal and state stock transfer stamps or a check for the appropriate purchase price thereof. Portfolio securities held of record by the Acquired Fund Custodian in book-entry form on behalf of the Acquired Fund shall be delivered by the Acquired Fund Custodian through the Depository Trust Company to the Acquiring Fund Custodian and by the Acquiring Fund Custodian recording the beneficial ownership thereof by the Acquiring Fund on the Acquiring Fund Custodian's records. Any cash shall be delivered by the Acquired Fund Custodian transmitting immediately available funds by wire transfer to the Acquiring Fund Custodian the cash balances maintained by the Acquired Fund Custodian and the Acquiring Fund Custodian crediting such amount to the account of the Acquiring Fund.
3.3 The Acquiring Fund Custodian shall deliver within one business day after the Closing a certificate of an authorized officer stating that: (a) the Acquired Assets have been delivered in proper form to the Acquiring Fund on the Closing Date, and (b) all necessary transfer taxes including all applicable federal and state stock transfer stamps, if any, have been paid, or provision for payment has been made in conjunction with the delivery of portfolio securities as part of the Acquired Assets.
3.4 If on the Closing Date (a) the New York Stock Exchange is closed to trading or trading thereon shall be restricted or (b) trading or the reporting of trading on such exchange or elsewhere is disrupted so that accurate appraisal of the NAV of the Acquiring Fund Shares or the Acquired Fund pursuant to Paragraph 2.1 is impracticable, the Closing Date shall be postponed until the first business day after the day when trading shall have been fully resumed and reporting shall have been restored.
3.5 The Acquired Fund shall deliver at the Closing a list of the names, addresses, federal taxpayer identification numbers and backup withholding and nonresident alien withholding status and certificates of the Acquired Fund Shareholders and the number and percentage ownership of outstanding Acquired Fund Shares owned by each Acquired Fund Shareholder as of the Valuation Time, certified by the President or a Secretary of the Safeco Trust and its Treasurer, Secretary or other authorized officer (the "Shareholder List") as being an accurate record of the information (a) provided by the Acquired Fund Shareholders, (b) provided by the Acquired Fund Custodian, or (c) derived from the Safeco Trust's records by such officers or one of the Safeco Trust's service providers. The Acquiring Fund shall issue and deliver to the Acquired Fund a confirmation evidencing the Acquiring Fund Shares to be credited on the Closing Date, or provide evidence satisfactory to the Acquired Fund that such Acquiring Fund Shares have been credited to the Acquired Fund's account on the books of the Acquiring Fund. At the Closing, each party shall deliver to the other such bills of sale, checks, assignments, stock certificates, receipts or other documents as such other party or its counsel may reasonably request.
Post-Closing Matters Execute and deliver the documents and complete the tasks set forth on Schedule 6.14, in each case within the time limits specified on such schedule, as such time limits may be extended from time to time by Agent in its reasonable discretion.
Payments of Post-Closing Adjustment Except as otherwise provided herein, any payment of the Post-Closing Adjustment, together with interest calculated as set forth below, shall (A) be due (x) within five (5) Business Days of acceptance of the applicable Closing Working Capital Statement or (y) if there are Disputed Amounts, then within five (5) Business Days of the resolution described in clause (v) above; and (B) be paid by wire transfer of immediately available funds to such account(s) as is directed by Buyer or Sellers, as the case may be.
Post-Closing Purchase Price Adjustment 1.9.1 Within ninety (90) days following the Closing Date, Seller shall prepare, or cause to be prepared, and deliver to Purchaser a statement (the “Closing Net Working Capital Statement”) which shall set forth the Net Working Capital of the Newsprint Business and of Apache as of the Closing Time (which shall be set forth separately for each of the Newsprint Business and Apache, but as aggregated shall be referred to as the “Closing Net Working Capital”) and shall be prepared in accordance with Seller’s past accounting methods, policies, practices and procedures and in the same manner, with consistent classification and estimation methodology, as the Financial Statements were prepared, except that the Excluded Assets and the Newsprint Retained Obligations shall be excluded. The Closing Net Working Capital Statement may not be amended by Seller after it is delivered to Purchaser.
1.9.2 Purchaser shall, within thirty (30) days after the delivery of the Closing Net Working Capital Statement to it, complete its review of the Closing Net Working Capital reflected on the Closing Net Working Capital Statement. If Purchaser wishes to dispute the Closing Net Working Capital, Purchaser shall notify Seller in writing in reasonable detail of such disagreement and any reason therefore (“Purchaser’s Objection”), setting forth a specific description of the basis of Purchaser’s Objection and the adjustments to the Closing Net Working Capital that Purchaser believes should be made, on or before the last day of such thirty (30) day period, which Purchaser’s Objection may not be amended by Purchaser after it is delivered to Seller (except to withdraw any such Purchaser’s Objection). Any items on the Closing Net Working Capital Statements not disputed in Purchaser’s Objection shall be irrevocably deemed to be accepted by Purchaser. Seller shall then have thirty (30) days to review and respond to Purchaser’s Objection. If Seller and Purchaser are unable to resolve all of their disagreements with respect to the determination of the foregoing items within thirty (30) days following Seller’s receipt of Purchaser’s Objection (the “Negotiation Period”), they shall refer their remaining differences to a mutually agreeable independent accounting firm of national recognition (other than an independent accounting firm utilized by any of Seller, Apache or Purchaser or any Affiliate of any of the foregoing within the past three (3) years) acceptable to both Seller and Purchaser or if Seller and Purchaser are unable to agree as to such third party accounting firm within ten (10) days after the conclusion of the Negotiation Period, either Seller or Purchaser may request that the Chairman of the American Arbitration Association (or the nominated representative of the Chairman) appoint a third party accounting firm meeting the aforementioned requirements to resolve the dispute (the accounting firm selected being referred to as the “CPA Firm”), who shall determine, only with respect to the remaining differences so submitted, whether and to what extent, if any, the Closing Net Working Capital requires adjustment. The procedure and schedule under which any dispute shall be submitted to the CPA Firm shall be as follows:
(a) Within ten (10) days after the later of (i) the end of the Negotiation Period and (ii) the selection of the CPA Firm, Purchaser shall submit any unresolved elements of the Purchaser’s Objection to the CPA Firm in writing (with a copy to Seller), supported by any documents and/or affidavits upon which it relies. Failure to timely do so shall constitute a withdrawal by Purchaser of the Purchaser’s Objection with respect to any unresolved element to which such failure relates.
(b) Within fifteen (15) days following Purchaser’s submission of the unresolved elements of the Purchaser’s Objection as specified in sub-clause (a) above, Seller shall submit its response to the CPA Firm in writing (with a copy to Purchaser), supported by any documents and/or affidavits upon which it relies. Failure to timely do so shall constitute an acceptance by Seller with respect to any unresolved elements to which such failure relates.
(c) The CPA Firm shall deliver its written determination to Purchaser and Seller no later than the thirtieth (30th) day after the remaining differences underlying Purchaser’s Objection are referred to the CPA Firm, or such longer period of time as the CPA Firm determines is necessary.
Closing Closing Deliveries (a) The closing of the Transaction (the “Closing”) shall take place at the offices of Xxxxxxxxx Xxxxx Xxxxxxx & Xxxxx, P.C., 000 Xxxxxxxx Xxxxxxxxx, Xxxxx 000, Xxxxx Xxxxxx, Xxxxxxxxxx 00000, at 10:00 a.m. local time on the date hereof, or at such other place, date and time as Sellers and Purchaser may agree. All deliveries to be made or other actions to be taken at the Closing shall be deemed to occur simultaneously, and no such delivery or action shall be deemed complete until all such deliveries and actions have been completed. The date and time at which the Closing actually occurs is referred to herein as the “Closing Date”.
(b) At the Closing, each Seller will deliver, or cause to be delivered, to Purchaser the following:
(i) the aggregate number of Shares owned by such Seller on the Closing Date and set forth opposite such Seller’s name on Schedule A, evidenced by a stock certificate or stock certificates, duly endorsed for transfer by delivery or accompanied by stock powers duly executed in blank (in each case, if requested by Purchaser, with signatures thereon duly guaranteed or notarized) and any other documents that are necessary to transfer to Purchaser good and marketable title to all such Shares free and clear of all Liens; and
(ii) all other instruments, agreements, certificates and documents required to be delivered by such Seller at or prior to the Closing Date pursuant to this Agreement.
(c) At the Closing, Purchaser will deliver, or cause to be delivered, the following to each Seller:
(i) the amount set forth opposite each Seller’s name on Schedule A by wire transfer of immediately available funds to an account designated in writing by each such Seller; and
(ii) all other instruments, agreements, certificates and documents required to be delivered by Purchaser at or prior to the Closing Date pursuant to this Agreement.
