Purchase Price Adjustment Clause Samples
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Purchase Price Adjustment. (a) Within 90 days following the Closing, the Buyer shall prepare and deliver, or cause to be prepared and delivered, to the Seller a statement (the “Closing Schedule”) setting forth:
(i) the Buyer’s determination of the actual amounts of (A) the Adjustment Amount, including the Final Adjustment Amount Overage or the Final Adjustment Amount Underage (the “Final Adjustment Amount”), and (B) the Seller Indebtedness Amount, in each case as of 12:01 a.m. Eastern Time on the Closing Date without taking into account any of the transactions to be completed on the Closing Date in accordance with the terms of this Agreement;
(ii) a calculation of any adjustments to the Closing Payment based on such calculations (the adjusted Closing Payment as a result of such calculation being the “Final Closing Payment”); and
(iii) a calculation of the accounts receivable contained in the Preliminary Adjustment Amount that were not collected by Buyer within the thirty (30) days immediately following the Closing and the accounts receivable existing at the Closing but not taken into account in calculating the Adjustment Amount (the “Excluded AR”).
(b) Within fifteen (15) days after delivery of the Closing Schedule, the Seller may deliver a notice to Buyer either: (i) concurring with the Closing Schedule (a “Notice of Concurrence”); or (ii) disagreeing therewith (a “Notice of Disagreement”). If the Seller delivers a Notice of Disagreement, then it shall be accompanied by the Seller’s proposed revisions to the Closing Schedule. If the Seller fails to deliver any notice within such 15-day period, the Seller shall be deemed to have delivered a Notice of Concurrence.
(c) If a Notice of Concurrence is delivered or deemed delivered, and if the Final Closing Payment is less than the Closing Payment, the Buyer shall be entitled to payment out of the Royalty Consideration in the full amount of such shortfall. If a Notice of Concurrence is delivered or deemed delivered, and the Final Closing Payment is greater than the Closing Payment, Buyer shall pay to the Seller the full amount of such excess (with such payment being in shares of Buyer Common Stock priced at $1.50 per share) within thirty (30) days of the delivery of the Notice of Concurrence.
(d) If a Notice of Disagreement is delivered, then the Seller and the Buyer shall, during the 15-day period following such delivery (the “Negotiation Period”), use commercially reasonable efforts to agree on the Final Adjustment Amount. If, during su...
Purchase Price Adjustment. (a) Within ninety (90) days after the Closing Date, Seller shall prepare and deliver to Purchaser a statement (the “Statement”), setting forth the Net Cash as of the close of business on the Closing Date (the “Closing Net Cash”) determined in accordance with Section 2.03, together with any supporting information that Purchaser may reasonably request. In connection with preparing the Statement, Seller shall have the right, but not the obligation, to conduct, at Seller’s expense, an audit of the balance sheet of the Company as of the Closing Date in accordance with generally accepted auditing standards; provided, however, that nothing in this sentence shall either change the definition of Net Cash from that set forth in Section 2.03 or extend the time frame in which Seller must deliver the Statement to Purchaser. After the Closing Date, at Seller’s request, Purchaser shall, and shall cause the Company to, assist Seller and its representatives in the preparation of the Statement and the conduct of the audit and shall provide Seller and its representatives any information reasonably requested and shall provide them access at all reasonable times to the personnel, properties and books and records of the Company for such purposes.
(b) Within thirty (30) days after receipt of the Statement, Purchaser shall deliver to Seller a written statement describing its objections, if any, to the Statement (the “Statement of Objections”). If Purchaser does not deliver a Statement of Objections to Seller within such thirty-day period, the Statement shall become final and binding upon the parties. If Purchaser delivers a Statement of Objections to Seller within such thirty-day period, and the parties cannot resolve any such objection within ten (10) Business Days after the receipt by Seller of such Statement of Objections, any remaining disputes shall be resolved by Ernst & Young LLP (the “Accounting Firm”). The Accounting Firm shall be instructed to resolve such disputes within thirty (30) days after receipt by the Accounting Firm of the materials delivered by Seller to Purchaser pursuant to Section 2.04(a) and by Purchaser to Seller pursuant to this Section 2.04(b), which materials shall be delivered by Seller and Purchaser to the Accounting Firm within five (5) Business Days following the expiration of the ten (10) Business Day period referenced in the preceding sentence. The resolution of disputes by the Accounting Firm shall be set forth in writing and shall be conclusive...
Purchase Price Adjustment. (a) Not later than three (3) Business Days prior to the Closing Date, the Company shall prepare and deliver to the Purchaser a draft of the Company Expense Certificate and shall provide to the Purchaser copies of any documents or instruments evidencing the amounts set forth in such certificate. At or prior to the Closing, the Company shall prepare and deliver the final Company Expense Certificate to the Purchaser and shall provide to the Purchaser copies of any documents or instruments evidencing the amounts set forth in such certificate. The Company Expense Certificate shall be prepared in good faith by the Company.
(b) If the Purchaser disagrees with any item or calculation set forth in the Company Expense Certificate, the Purchaser may, within ** ** days after the Closing, deliver to the Company a written notice (a “Dispute Notice”) setting forth in reasonable detail the Purchaser’s calculation of the amounts in such certificate. If the Purchaser does not deliver a Dispute Notice within such ** ** day period, the amounts set forth in the Company Expense Certificate shall be final, binding and conclusive upon the Purchaser and the Company for all purposes hereunder. ** ** Text Omitted and Filed Separately with the Securities and Exchange Commission. Confidential Treatment Requested Under 17 C.F.R. Sections 200.80(b)(4) and 240.24b-2
(c) If the Purchaser delivers a Dispute Notice to the Company in accordance with Section 3.3(b) hereof, the Purchaser and the Company shall, within ** ** days after such delivery, use good faith efforts to resolve the disputed items. Any disputed items resolved in writing between the Purchaser and the Company within such ** ** day period shall be final, binding and conclusive with respect to such items, and if the Purchaser and the Company agree in writing on resolution of each disputed item and the amount of the Company Expense Excess, the amount so determined shall be final, binding and conclusive on the Purchaser and the Company for all purposes hereunder. If the Purchaser and the Company are unable to resolve such disputed items or amount within such ** ** day period, they shall promptly submit the dispute to a nationally recognized independent accountant firm as shall be selected by the mutual agreement of the Purchaser and the Company (the “Independent Accounting Firm”); provided, however, that if the Purchaser and the Company cannot so agree within ** ** days after the delivery of the Dispute Notice, the American Arbit...
Purchase Price Adjustment. (a) Within 60 days after the Closing, Purchaser in consultation with Sellers shall prepare and deliver to the Sellers a statement (the "Adjustment Statement"), which reflects (i) the difference between (A) the Stores and Inventory Amount as of the Closing Date, based on an inventory survey conducted by Purchaser within 30 days after the Closing Date, which may be observed by Sellers, and (B) the undisputed Estimated Stores and Inventory Amount (such difference is referred to as the "Stores and Inventory Adjustment Amount"), (ii) the difference between (A) the Post-September Capital Expenditures Amount and (B) the undisputed Estimated Post-September Capital Expenditures Amount (such difference is referred to as the "Post-September Capital Expenditures Adjustment Amount"), (iii) the difference between (A) the Post-April RRSU Payment Amount and (B) the undisputed Estimated Post-April RRSU Payment Amount (such difference is referred to as the "RRSU Adjustment Amount"), and (iv) the difference between (A) the Hot Gas Path Parts Expenditures Amount and (B) the undisputed Estimated Hot Gas Path Parts Expenditures Amount (such difference is referred to as the "Hot Gas Path Parts Adjustment Amount"). The Stores and Inventory Adjustment Amount, the Post-September Capital Expenditures Adjustment Amount, the RRSU Adjustment Amount, and the Hot Gas Path Parts Adjustment Amount are referred to collectively as the "Adjustment Amount." The Adjustment Statement shall be prepared using GAAP and the methodologies set forth in the definition of Stores and Inventory Amount. The Parties agree to cooperate in connection with the preparation of the Adjustment Statement and related information, and shall provide each other with such books, records and information as may be reasonably requested from time to time in connection therewith and in connection with Sellers' review thereof.
(b) Sellers may dispute the Adjustment Amount; provided, however, that Sellers shall notify Purchaser in writing of the disputed amount, and the basis of such dispute, within ten (10) Business Days of Sellers' receipt of the Adjustment Statement. In the event of a dispute with respect to any part of the Adjustment Amount, Purchaser and Sellers shall attempt to reconcile their differences and any resolution by them as to any disputed amounts shall be final, binding and conclusive on the Parties. If Purchaser and Sellers are unable to reach a resolution of such differences within 30 days of receipt of Sel...
Purchase Price Adjustment. (a) Not later than two (2) Business Days before the Closing Date, the Company shall deliver to Parent and the Stockholders Representative, the Company’s estimates, along with reasonable supporting detail thereof, of the Closing Liabilities and Debt (the “Estimated Closing Liabilities and Debt”), Unpaid Company Transaction Expenses (the “Estimated Unpaid Company Transaction Expenses”), the Closing Net Working Capital Amount (the “Estimated Net Working Capital Amount”) (including a reasonably detailed description of each component thereof) and, based upon such Estimated Net Working Capital Amount, the difference between the Estimated Net Working Capital Amount and the Targeted Net Working Capital Amount (such surplus, if applicable, the “Estimated Net Working Capital Surplus” and such deficit, if applicable, the “Estimated Net Working Capital Deficit”), such estimates to be prepared in good faith and in accordance with the policies, conventions, methodologies and procedures used by the Company in preparing its most recent unaudited financial statements in connection with the filing of its most recent quarterly report on Form 10-Q (the “Company Unaudited Financial Statements”) to the extent consistent with United States generally accepted accounting principles (“GAAP”). Based on such estimates and prior to Closing, the Company and Parent shall in good faith calculate and mutually agree on estimates of such amounts to be used for purposes of determining the Closing Adjusted Cash Consideration for purposes of Closing.
(b) As promptly as practicable, but in no event later than ninety (90) days following the Closing Date, Parent shall cause the Surviving Company, to deliver to the Stockholders Representative a schedule (the “Closing Date Schedule”), along with reasonable supporting detail thereof, setting forth in reasonable detail the Surviving Company’s calculation of Closing Liabilities and Debt, Closing Net Working Capital Amount and Unpaid Company Transaction Expenses, such calculations to be prepared in good faith and in accordance with the policies, conventions, methodologies and procedures used by the Company in preparing the Company Unaudited Financial Statements to the extent consistent with GAAP.
(c) From and after the delivery of the Closing Date Schedule, Parent shall cause the Surviving Company to provide the Stockholders Representative and any accountants or advisors retained by the Stockholders Representative with reasonable access (including elec...
Purchase Price Adjustment. In the event that the Company issues or sells any Common Stock or securities which are convertible into or exchangeable for its Common Stock or any convertible securities, or any warrants or other rights to subscribe for or to purchase or any options for the purchase of its Common Stock or any such convertible securities (other than shares or options issued or which may be issued pursuant to the Company's employee or director option plans or shares issued upon exercise of options, warrants or rights outstanding on the date of the Agreement and listed in the Exchange Act Reports) at an effective purchase price per share which is less than the Purchase Price then in effect or the fair market value (as hereinabove defined) of the Common Stock on the trading day next preceding such issue or sale, then in each such case, the Purchase Price in effect immediately prior to such issue or sale shall be reduced effective concurrently with such issue or sale to an amount determined by multiplying the Purchase Price then in effect by a fraction, (x) the numerator of which shall be the sum of (1) the number of shares of Common Stock outstanding immediately prior to such issue or sale, including, without duplication, those deemed to have been issued under any provision of the Debentures and the Warrants plus (2) the number of shares of Common Stock which the aggregate consideration received by the Company for such additional shares would purchase at such fair market value or Purchase Price, as the case may be, then in effect; and (y) the denominator of which shall be the number of shares of Common Stock of the Company outstanding immediately after such issue or sale including, without duplication, those deemed to have been issued under any provision of the Debentures and Warrants. For purposes of the foregoing fraction, Common Stock outstanding shall include, without limitation, any Equity Offerings (as defined in the Debentures) then outstanding, whether or not they are exercisable or convertible when such fraction is to be determined. In the event of any such issuance for a consideration which is less than such fair market value and also less than the Purchase Price then in effect, then there shall be only one such adjustment by reason of such issuance, such adjustment to be that which results in the greatest reduction of the Purchase Price computed as aforesaid. The number of shares which may be purchased hereunder shall be increased proportionately to any reduction i...
Purchase Price Adjustment. (a) Within ninety (90) days after the Closing Date, the Contributing Parties shall prepare and deliver, or cause to be prepared and delivered, to the Partnership: (i) a worksheet showing the components of Net Working Capital as of 11:59 p.m. local time on the day immediately preceding the Closing Date (the “Final Working Capital Worksheet”) (provided that, such calculation shall not take into account any deferred Tax assets or deferred Tax liabilities or any effects on the assets or liabilities of the Contributed Entities (other than the elimination of debt as a result of Section 5.4 so that such debt shall not be treated as outstanding on the Final Working Capital Worksheet) as a result of the transactions contemplated by this Agreement); (ii) the Contributing Parties’ calculation of the Net Working Capital based on the Final Working Capital Worksheet (the “Final Net Working Capital”); (iii) a schedule (the “Final Pre-Closing Capital Expenditures Worksheet”) setting forth the Contributing Parties’ calculation of the Pre-Closing Capital Expenditures Amount (the “Final Pre-Closing Capital Expenditures Amount”) and (iv) the Contributing Parties’ calculation of the Final Consideration Adjustment Amount. In connection with the Contributing Parties’ preparation and delivery of the Final Working Capital Worksheet, the Final Net Working Capital, the Final Pre-Closing Capital Expenditures Worksheet and the calculation of the Final Consideration Adjustment Amount, the Partnership shall, and shall cause the Contributed Entities to, (x) permit the Contributing Parties and their Representatives to have reasonable access to the books, records and other documents (including internal work papers, schedules, financial statements and memoranda) of the Contributed Entities, (y) cooperate with the Contributing Parties and their Representatives in seeking to obtain work papers from the Partnership and the Contributed Entities pertaining to the calculation of the Final Consideration Adjustment Amount and provide the Contributing Parties with copies thereof (as reasonably requested by the Contributing Parties) and (z) provide the Contributing Parties and their Representatives reasonable access to the Partnership’s Representatives as reasonably requested by the Contributing Parties.
(b) The Partnership on behalf of itself and the other Partnership Parties and acting through the Conflicts Committee may provide a written notice accepting the Final Consideration Adjustment Amount a...
Purchase Price Adjustment. (a) Prior to the Closing Date, Compost shall deliver to Purchaser a worksheet which shall be attached as Exhibit B hereto, setting forth a reasonable estimate of the Indebtedness and Net Working Capital as of the Closing Date as well as a computation of the estimated Adjustment Amount (the "Estimated Adjustment Amount"). The worksheet shall be prepared by Compost and accepted by Purchaser in its reasonable discretion. If the Estimated Adjustment Amount is a positive number, the amount payable in cash at Closing shall be decreased in an amount equal to the Estimated Adjustment Amount. If the Estimated Adjustment amount is a negative number, the amount payable in cash at Closing shall be increased in an amount equal to the absolute value of the Estimated Adjustment Amount.
(b) Within 90 days after the Closing, the Purchaser shall cause the Company to prepare and deliver to Compost a balance sheet of the Company as of the Closing Date (the "Closing Date Balance Sheet"), including a computation of the actual Adjustment Amount of the Company as of the Closing Date. The Closing Date Balance Sheet and the calculations of Indebtedness and Net Working Capital shall be prepared in accordance with GAAP, and to the extent consistent with GAAP, using the same accounting methods, policies, practices and procedures with classifications, judgments and estimation methodologies consistent with those used in preparation of the Company Financial Statements. If within 15 calendar days following delivery of the Closing Date Balance Sheet Compost does not object in writing thereto, Compost shall have been deemed to have agreed to the Closing Date Balance Sheet. If Compost objects in writing to the computation, then the Purchaser and Compost shall negotiate in good faith and attempt to resolve their disagreement. Within the first fifteen calendar days following the delivery of the Closing Date Balance Sheet and during the period of any dispute within the contemplation of this Section 3.3(b), Compost and other representatives of Compost shall have reasonable access during normal business hours to all relevant books and records and employees of the Company to the extent required to complete their review of the Closing Date Balance Sheet and shall be permitted to review the working papers, if any, of the Company or the Purchaser's Auditors relating to the Closing Date Balance Sheet. Purchaser and Purchaser's Auditors shall cooperate with Compost and their representatives in facilita...
Purchase Price Adjustment. (a) On or before the 60th day after the Closing Date, Buyer shall prepare and deliver to Sellers’ Representative the Closing Balance Sheet and a statement setting forth the Closing Net Asset Value (the “Closing Net Asset Value Statement”). Each Party shall provide the other Party and its representatives with reasonable access to relevant books, records, work papers and personnel during the preparation of the Closing Net Asset Value Statement, the conduct of any reviews referred to in this Section 1.4 and the resolution of any disputes that may arise under this Section 1.4.
(b) If Sellers’ Representative disagrees with the determination of the Closing Net Asset Value as shown on the Closing Net Asset Value Statement, Sellers’ Representative shall notify Buyer of such disagreement within 30 days after Sellers’ Representative’s receipt of the Closing Net Asset Value Statement, which notice shall (i) describe the nature of any such disagreement in reasonable detail, (ii) identify the specific items involved and (iii) set forth the dollar amount of each such disagreement (“Seller Objection”). After the end of the above-referenced 30-day period, neither Buyer nor Sellers’ Representative may introduce additional disagreements with respect to any item in the Closing Net Asset Value Statement or increase the amount of any disagreement, and any item not so identified shall be deemed to be agreed to by Buyer and Sellers’ Representative and will be final, binding and conclusive upon the Parties.
(c) If a Seller Objection is provided within the above-referenced 30-day period, Buyer shall have 10 Business Days to review and respond to the Seller Objection, and Buyer and Sellers’ Representative shall attempt to resolve the differences underlying the Seller Objection within 20 Business Days following Buyer’s receipt of the Seller Objection. Disputes between Buyer and Sellers’ Representative that are not resolved by them within such 20-Business Day period shall be referred no later than such 20th Business Day for decision to an independent accounting firm of national reputation mutually acceptable to Buyer and Sellers’ Representative (the “Arbiter”) that shall act as arbitrator and determine, based solely on presentations by Sellers’ Representative and Buyer and only with respect to the remaining differences so submitted, whether and to what extent, if any, the Closing Statements require adjustment. If Buyer and Sellers’ Representative cannot agree upon the selection of th...
Purchase Price Adjustment. The Closing Balance Sheet shall be deemed final for the purposes of this Section 2.6 upon the earlier of (A) the failure of Buyer to notify Seller of a dispute within ten (10) business days of Seller’s delivery of the Closing Balance Sheet to Buyer, (B) the resolution of all disputes, pursuant to Section 2.6(c)(ii), by Buyer and Seller and (C) the resolution of all disputes, pursuant to Section 2.6(c)(ii), by the Independent Accounting Firm. Subject to the limitation set forth in Section 2.6(c)(iv), within three (3) business days of the Closing Balance Sheet being deemed final, a Purchase Price adjustment shall be made as follows:
(i) in the event that the Net Asset Balance reflected on the Preliminary Closing Balance Sheet exceeds the Net Asset Balance reflected on the Closing Balance Sheet by at least the Designated Amount, then the Purchase Price shall be adjusted downward in an amount equal to the Designated Amount plus such excess over the Designated Amount, and the Seller shall, within three (3) business days of such determination, pay such amount to Buyer (i) in cash if such amount is not more than $100,000 or (ii) a combination of forty-five percent (45%) in cash and fifty-five percent (55%) in Parent’s common stock (valued for such purpose at $1.44 per share) if such amount exceeds $100,000; and
(ii) in the event that the Net Asset Balance reflected on the Closing Balance Sheet exceeds the Net Asset Balance reflected on the Preliminary Closing Balance Sheet by at least the Designated Amount, then the Purchase Price shall be adjusted upward in an amount equal to the Designated Amount plus such excess over the Designated Amount and Buyer shall, within three (3) business days of such determination, pay the amount of such to Seller (i) in cash if such amount is not more than $100,000 or (ii) a combination of forty-five percent (45%) in cash and fifty-five percent (55%) in Parent’s common stock (valued for such purpose at $1.44 per share) if such amount exceeds $100,000; provided that, in no event shall the number of shares of Parent’s common stock issued pursuant to this Section 2.6(d)(ii), when aggregated with the Stock Consideration, exceed 19.9% of the number of shares of Parent’s common stock issued and outstanding immediately prior to such issuance.