Common use of Adjustment to Consideration Clause in Contracts

Adjustment to Consideration. (a) Within 45 days following the Closing Date, Parent may, at its election, cause to be prepared and delivered to the Shareholder Representative an unaudited balance sheet of the Company as of the Closing Date (the “Adjusted Balance Sheet”). The Adjusted Balance Sheet will be prepared in accordance with GAAP consistently applied on a basis consistent with the Financials. In the event that, pursuant to the terms of this Section 8.8(a), it is determined that the amount equal to (i) the absolute value of the Company’s total current assets (as defined by and as determined in accordance with GAAP but excluding unrestricted cash and cash equivalents) at the Closing Date as reflected on the Adjusted Balance Sheet minus (ii) the absolute value of the Company’s total current liabilities (as defined by and as determined in accordance with GAAP but excluding deferred revenue) at the Closing Date as reflected on the Adjusted Balance Sheet (collectively, the “Net Assets at Closing”) plus (iii) the Balance Sheet Adjustment Amount is a number less than the Balance Sheet Target, then an amount equal to such difference (“Excess Liabilities”) shall be paid to Parent and shall not be limited by the Threshold Amount or the Deductible Amount. Parent shall have the right to require that the Excess Liabilities be paid to it from (x) the Escrow Fund or (y) the Shareholders and Participating Optionholders based on their respective Pro Rata Portion. For purposes of this calculation, Third Party Expenses shall not be considered as part of total current liabilities. Following delivery by Parent to the Shareholder Representative of the Adjusted Balance Sheet, Parent shall give the Shareholder Representative reasonable access during Parent’s regular California business hours to those books and records of the Company in the possession or control of Parent and any personnel which relate to the preparation of the Adjusted Balance Sheet for purposes of resolving any disputes concerning the Adjusted Balance Sheet and the calculation of Net Assets at Closing.

Adjustment to Consideration. (a) Within 45 days following After the Closing DateClosing, Parent mayBuyer shall deliver to Seller a statement (based on draft Tax Returns of Lion and Paline Pipeline Company (and any affiliated, at its electionconsolidated, cause to be combined or unitary group of which either of Lion and Paline Pipeline Company is a member) prepared and delivered to by PricewaterhouseCoopers LLP, KPMG LLP or another mutually acceptable independent accounting firm) that sets forth the Shareholder Representative an unaudited balance sheet amount of any Taxes that are included in the Paline Taxes, together with reasonable details supporting the calculation of the Company as of the Closing Date Paline Taxes (the “Adjusted Balance SheetPaline Tax Statement”). The Adjusted Balance Sheet will be prepared Seller shall have 45 days from the date of receipt of the Paline Tax Statement to pay to Buyer an amount equal to any undisputed portion of the Paline Taxes set forth in accordance with GAAP consistently applied on a basis consistent with the FinancialsPaline Tax Statement by wire transfer of immediately available funds to an account or accounts designated in writing by Buyer. In the event thatthat Seller does not agree with the calculation of the Paline Taxes as set forth in the Paline Tax Statement, pursuant Seller shall so notify Buyer in writing within 10 Business Days after the date of receipt of the Paline Tax Statement, setting forth in writing and in reasonable detail the nature of Seller’s objections to the terms calculation of this Section 8.8(aPaline Taxes as set forth in the Paline Tax Statement. Seller and Buyer shall negotiate in good faith the disputed portion of the Paline Taxes calculation. In the event the Parties are unable to reach an agreement within 10 days after Buyer receives written notice of any disputed amount (or such later date as may be agreed by Buyer and Seller), it is determined that then the amount equal to (i) the absolute value of the Company’s total current assets (as defined by and as determined Parties will resolve such dispute in accordance with GAAP but excluding unrestricted cash and cash equivalents) at the Closing Date as reflected on procedures set forth in Exhibit N. Any amount to be paid by Seller to Buyer pursuant the Adjusted Balance Sheet minus (ii) the absolute value of the Company’s total current liabilities (as defined by and as determined in accordance with GAAP but excluding deferred revenue) at the Closing Date as reflected on the Adjusted Balance Sheet (collectively, the “Net Assets at Closing”) plus (iii) the Balance Sheet Adjustment Amount is a number less than the Balance Sheet Target, then an amount equal dispute resolution process conducted pursuant to such difference (“Excess Liabilities”) Exhibit N shall be paid within 10 Business Days of such determination by wire transfer of immediately available funds to Parent and shall not be limited an account or accounts designated in writing by the Threshold Amount or the Deductible Amount. Parent shall have the right to require that the Excess Liabilities be paid to it from (x) the Escrow Fund or (y) the Shareholders and Participating Optionholders based on their respective Pro Rata Portion. For purposes of this calculation, Third Party Expenses shall not be considered as part of total current liabilities. Following delivery by Parent to the Shareholder Representative of the Adjusted Balance Sheet, Parent shall give the Shareholder Representative reasonable access during Parent’s regular California business hours to those books and records of the Company in the possession or control of Parent and any personnel which relate to the preparation of the Adjusted Balance Sheet for purposes of resolving any disputes concerning the Adjusted Balance Sheet and the calculation of Net Assets at ClosingBuyer.

Adjustment to Consideration. (a) Within 45 60 days following the Closing Date, Parent shall determine whether there are any Excess Liabilities or Excess Assets as of the Closing and give the Shareholder Representative notice of such determination. For purposes of making such calculation, Parent may use either the Closing Balance Sheet or the Adjusted Balance Sheet. For purposes of this Agreement, the amount by which (i) the Company's total assets (as defined by and determined in accordance with GAAP and consistent with past practices) as of the Closing Date minus (ii) the Company's total liabilities (as defined by and determined in accordance with GAAP and consistent with past practices) as of the Closing Date is less than or exceeds $7,000,000.00 shall be the "Excess Liabilities" or "Excess Assets," as the case may be; provided, however, that to the extent not paid prior to or at the Closing, all Third Party Expenses and Contingent Closing Payments shall be considered as liabilities of the Company as of the Closing for purposes of the above calculation. As noted above, instead of using the Closing Balance Sheet for purposes of making the Excess Liabilities/Excess Assets calculation, Parent may, at its election, cause to be prepared and delivered to the Shareholder Representative an unaudited balance sheet of the Company as of the Closing Date (the “Adjusted Balance Sheet”). The If Parent elects to prepare the Adjusted Balance Sheet will Sheet, such document shall be prepared in accordance with GAAP consistently applied on a basis consistent with the Financialsmost recent regularly prepared financial statements of the Company. In the event thatIf there are any Excess Liabilities, pursuant to the terms of this Section 8.8(a), it is determined that then the amount equal to (i) the absolute value of the Company’s total current assets (as defined by and as determined in accordance with GAAP but excluding unrestricted cash and cash equivalents) at the Closing Date as reflected on the Adjusted Balance Sheet minus (ii) the absolute value of the Company’s total current liabilities (as defined by and as determined in accordance with GAAP but excluding deferred revenue) at the Closing Date as reflected on the Adjusted Balance Sheet (collectively, the “Net Assets at Closing”) plus (iii) the Balance Sheet Adjustment Amount is a number less than the Balance Sheet Target, then an amount equal to such difference (“Excess Liabilities”) Liabilities shall be paid to Parent and shall not be limited by the Threshold Amount or the Deductible Amount. Parent shall have the right to require that the Excess Liabilities be paid to it from (x) out of the Escrow Fund or (yin accordance with the terms of Section 8.3 hereof. If there are Excess Assets, within 10 days after the date Parent has made the calculations set forth in this Section 8.6 and any disputes regarding such calculations have been finally resolved as provided below, Parent shall pay to each Shareholder who has surrendered such Shareholder's Certificates as provided in Section 7.1(a) the Shareholders and Participating Optionholders based on their respective above such Shareholder's Pro Rata PortionPortion of the amount of Excess Assets. For purposes of this calculationIf Parent calculates whether there are any Excess Liabilities or Excess Assets using the Adjusted Balance Sheet, Third Party Expenses then Parent shall not be considered as part of total current liabilitiesdeliver to the Shareholder Representative such Adjusted Balance Sheet within 60 days following the Closing Date. Following delivery by Parent to the Shareholder Representative of the Adjusted Balance Sheet, Parent shall give the Shareholder Representative reasonable access during Parent’s 's regular California Illinois business hours to those books and records of the Company in the possession or control of Parent and any personnel which relate to the preparation of the Adjusted Balance Sheet for purposes of resolving any disputes concerning the Adjusted Balance Sheet and the calculation of Net Assets at Closingany Excess Liabilities or Excess Assets. If Parent uses the Closing Balance Sheet for purposes of making such calculation, subsections 8.6(b) -- (d) shall not be applicable.

Adjustment to Consideration. (a) Within 45 days following It is acknowledged and agreed that at the Closing Date, Parent may, at its election, cause to be prepared Completion Date the Company shall not have any Debt and delivered to that the Shareholder Representative an unaudited balance sheet Working Capital of the Company as shall be Euro 0 at Completion. Any actions of Xxxxxxxx to achieve the Company being free of any Debt or to achieve a Working Capital of Euro 0, shall not have any adverse tax effect of whatsoever nature for the Company and for SBS. It is, furthermore, acknowledged and agreed that in the event that the Completion Balance Sheet differs from the Pro Forma Completion Balance Sheet a recalculation shall take place of the Closing Date (the “Adjusted Balance Sheet”)Consideration, whereby each item on such balance sheets shall be taken into account and compared. The Adjusted Balance Sheet will be prepared aggregate amount resulting from such comparison, which would result in an adjustment to the Consideration as set out in clause 6 in accordance with GAAP consistently applied on a basis consistent with the Financials. In the event that, pursuant provisions of clause 10.10 shall be equal to the terms of this Section 8.8(a), it is determined that amount by which the amount equal to (i) net asset value as shown in the absolute value of the Company’s total current assets (as defined by and as determined in accordance with GAAP but excluding unrestricted cash and cash equivalents) at the Closing Date as reflected on the Adjusted Completion Balance Sheet minus (ii) shall differ from the absolute net asset value of as shown in the Company’s total current liabilities (as defined by and as determined in accordance with GAAP but excluding deferred revenue) at the Closing Date as reflected on the Adjusted Pro Forma Balance Sheet (collectively, the “Net Assets at Closing”Aggregate Amount) plus (iii) and be settled as follows: If the parties did not refer the item or items in dispute of the Pro Forma Completion Balance Sheet Adjustment Amount is a number less than (the Balance Sheet Target, then Disputed Items) to the Independent Accountants in an amount equal earlier stage as set out in clause 7.3 the parties shall discuss the Disputed Items and try to such difference (“Excess Liabilities”) reach an understanding regarding the Disputed Items within five Business Days following one year after Signing. If no agreement has been reached the Disputed Items shall be paid to Parent and shall not be limited determined by the Threshold Amount or Independent Accountants, whereupon a comparison between the Deductible Amount. Parent shall have the right to require that the Excess Liabilities be paid to it from (x) the Escrow Fund or (y) the Shareholders and Participating Optionholders based on their respective Pro Rata Portion. For purposes of this calculation, Third Party Expenses shall not be considered as part of total current liabilities. Following delivery by Parent to the Shareholder Representative of the Adjusted Balance Sheet, Parent shall give the Shareholder Representative reasonable access during Parent’s regular California business hours to those books and records of the Company in the possession or control of Parent and any personnel which relate to the preparation of the Adjusted Balance Sheet for purposes of resolving any disputes concerning the Adjusted Forma Completion Balance Sheet and the calculation Completion Balance Sheet on an item for item basis shall be made as set forth in this clause 7.5. Upon finalisation of Net Assets at Closingsuch comparison the parties shall enter into discussions regarding the way of settlement of the Aggregate Amount. If parties have not reached an understanding regarding the way of settlement within thirty days following the finalisation of aforementioned comparison, the Aggregate Amount shall be settled either in cash or in kind in accordance with the provisions of clause 10.10 of this agreement, it being understood that there shall be disregard of the Aggregate Amount in the event such amount is less than Euro 75,000. If the Aggregate Amount is Euro 75,000 or more, this amount shall be taken into account when determining whether the threshold set out in clause 11.1(b) is met, which threshold shall also apply in relation to the settlement of the Aggregate Amount. If the parties had referred the Disputed Items to Independent Accounts as set out in clause 7.3, the parties shall enter into discussions regarding the way of settlement of the Aggregate Amount one year following the Signing. If parties have not reached an understanding regarding the way of settlement within thirty days following one year after Signing, the Aggregate Amount shall be settled either in cash or in kind in accordance with the provisions of clause 10.10 of this agreement, it being understood that there shall be disregard of the Aggregate Amount in the event such amount is less than Euro 75,000. If the Aggregate Amount is Euro 75,000 or more, this amount shall be taken into account when determining whether the threshold set out in clause 11.1(b) is met, which threshold shall also apply in relation to the settlement of the Aggregate Amount.

Adjustment to Consideration. (a) Within 45 days following the Closing Date, Parent may, at its election, cause to be prepared and delivered to the Shareholder Stockholder Representative an unaudited balance sheet of the Company Surviving Corporation as of the Closing Date (the “Adjusted Balance Sheet”). The Adjusted Balance Sheet will be prepared in accordance with GAAP consistently applied on a basis consistent with the Financials. In the event that, pursuant to the terms of this Section 8.8(a7.6(a), it is determined that the amount equal to (i) the absolute value of the Company’s total current assets (as defined by and as determined in accordance with GAAP but excluding unrestricted cash and cash equivalents) at the Closing Date as reflected on the Adjusted Balance Sheet minus (ii) the absolute value of the Company’s total current liabilities (as defined by and as determined in accordance with GAAP but excluding deferred revenuerevenue and the amount of any indebtedness for borrowed money) at the Closing Date as reflected on the Adjusted Balance Sheet (collectively, the “Net Assets at Closing”) plus (iii) the Balance Sheet Adjustment Amount is a number less than the Balance Sheet Target, then an amount equal to such difference (“Excess Liabilities”) shall be paid to Parent and shall not be limited by the Threshold Amount or the Deductible Amount. Parent shall have the right to require that the Excess Liabilities be paid to it from (x) out of the Escrow Fund or (yin accordance with the terms of Section 7.4(e) the Shareholders and Participating Optionholders based on their respective Pro Rata Portionhereof. For purposes of this calculation, Third Party Expenses shall not be considered as part of the total current liabilities. Following delivery by Parent to the Shareholder Stockholder Representative of the Adjusted Balance Sheet, Parent shall give the Shareholder Stockholder Representative reasonable access during Parent’s regular California business hours to those books and records of the Company Surviving Corporation in the possession or control of Parent and any personnel which relate to the preparation of the Adjusted Balance Sheet for purposes of resolving any disputes concerning the Adjusted Balance Sheet and the calculation of Net Assets at Closing.