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 seventy-five (75) days following the Closing Date, Seller shall deliver to Buyer an unaudited consolidated statement (the “Preliminary Closing Net Working Capital Statement”) of the Net Working Capital of the Company and its Subsidiaries immediately prior to the Closing (calculated after giving effect to the elimination of inter-company, Income Tax and cash (including written checks in transit) accounts pursuant to Section 4.9(b)) (the “Preliminary Net Working Capital”), together with a statement detailing the calculation thereof consistent with Section 2.3(a) of the Company Disclosure Letter, prepared by Seller in accordance with GAAP.
(b) Buyer shall provide Seller and its Representatives reasonable access to, and permit them to make copies of, during normal business hours and upon reasonable notice, all relevant work papers, schedules, memoranda and other documents, including working papers of its accountants (subject to such accountants’ customary access terms), and to any of Buyer’s employees and Representatives, to the extent reasonably necessary for Seller to prepare the Preliminary Closing Net Working Capital Statement, and Buyer shall, and shall cause its employees and Representatives to, cooperate reasonably with Seller and its Representatives in connection therewith. Buyer agrees that following the Closing it shall not take any actions with respect to the books, records and other documents on which the Preliminary Closing Net Working Capital Statement is to be based that would hinder the ability of Seller or its Representatives to prepare the Preliminary Closing Net Working Capital Statement.
(c) Buyer shall, within thirty (30) days after the delivery by Seller of the Preliminary Closing Net Working Capital Statement, complete its review of the Preliminary Net Working Capital reflected in the Preliminary Closing Net Working Capital Statement. Seller shall provide Buyer and its Representatives reasonable access to, and permit them to make copies of, during normal business hours and upon reasonable notice, all relevant work papers, schedules, memoranda and other documents, including working papers of its accountants (subject to such accountants’ customary access terms), prepared by Seller or its Representatives in connection with its preparation of the Preliminary Closing Net Working Capital Statement and/or its calculation of Preliminary Net Working Capital, and to any of Seller’s employees and Representatives, to the extent reasonably...
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) 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) No later than five (5) Business Days prior to the anticipated Closing, the Company shall prepare and deliver to Buyer a draft of the Seller Closing Statement setting forth the Company’s good faith estimates of the calculations and components listed in the definition thereof (together with reasonably detailed supporting information). Buyer may review such draft of the Seller Closing Statement and make comments and inquiries to the Company and the Company shall consider such comments in good faith. Then, no later than three (3) Business Days prior to the Closing Date, the Company shall prepare and deliver to Buyer the final Seller Closing Statement and all supporting materials reasonably necessary for Buyer to review the Seller Closing Statement (including copies of final invoices and payoff letters) and the calculations set forth in the Seller Closing Statement shall be used for purposes of the payments to be made pursuant to Section 2.3(b) of this Agreement. Buyer shall be entitled to rely conclusively on the Seller Closing Statement (and the calculations therein) delivered by the Company for all purposes hereunder and shall have no Liability to any Person in respect of any payment or other actions taken in reliance upon or in accordance with the Seller Closing Statement (including in respect of the allocation of the Closing Consideration as set forth therein).
(b) As soon as reasonably practicable, but no later than ninety (90) days following the Closing Date, Buyer shall cause to be prepared, and shall deliver to the Seller, a statement setting forth Buyer’s good faith calculation of the Closing Cash Consideration and the components thereof (the “Buyer Closing Statement”). The foregoing calculations shall be accompanied by reasonable supporting detail therefor. In the event Buyer does not deliver the Buyer Closing Statement within such 90-day period, then Buyer shall be deemed to have accepted the Seller Closing Statement and the calculations set forth therein, which shall be conclusive, final and binding on all of the parties for all purposes hereunder (including the determination of the Closing Cash Consideration).
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) As soon as practicable, but in any event not more than 70 days after the Closing Date, unless otherwise extended by the mutual agreement of Parent and Holdings, Parent shall deliver to Holdings a statement of net assets to be sold as of the Closing Date, including information necessary to determine the Working Capital, Balance Sheet Indebtedness and Closing Cash at such date (but without giving effect to the Closing and the transactions covered by the Asset Purchase Agreement specified in Section 2.2(b)) (the "Closing Financial Statement"), together with a report of E&Y thereon to the effect that such statement fairly presents in all material respects the financial position of the Bison Subsidiaries as of said date, and that such statement has been prepared in accordance with GAAP applied on a basis consistent with the December 30, 2000 Statement of Net Assets to be Sold (including the elimination of the corporate overhead items identified in Part B of Section 3.4 of the Disclosure Schedule but except that M&C Advanced Processes is included in the Closing Financial Statements), except (i) for any accounting changes mandated by accounting regulators and (ii) as set forth in Part A of Section 3.4 of the Disclosure Schedule. All costs and expenses incurred by Parent in connection with the preparation and delivery of the Closing Financial Statement shall be borne equally by Parent and Holdings.
(b) Subject to Section 2.4(e), if Working Capital plus Balance Sheet Indebtedness on the Closing Date is less than negative one hundred eight million nine hundred thousand dollars ($-108,900,000), the difference between Working Capital plus Balance Sheet Indebtedness and negative $108,900,000 shall be paid by Parent to C&A Products. Subject to Section 2.4(e), if Working Capital plus Balance Sheet Indebtedness on the Closing Date is more than negative one hundred eight million nine hundred thousand dollars ($-108,900,000), the difference between Working Capital plus Balance Sheet Indebtedness and negative $108,900,000 shall be paid by C&A Products to Parent. For the purposes of calculating the purchase price adjustment set forth in this section, Balance Sheet Indebtedness shall be deemed to be a negative number.
(i) Subject to Section 2.4(e), if the Closing Cash on the Closing Date is greater than zero, the difference between zero and the Closing Cash shall be paid by C&A Products to Parent. Subject to Section 2.4(e), if the Closing Cash on the Closing Date is less t...
Purchase Price Adjustment. (a) The parties acknowledge that the Purchase Price of $7,091,059 set forth in Section 1.2 hereof reflects the sum of $2,446,521 and the aggregate value, as of December 31, 2002, of the Company’s (i) inventory (ii) accounts receivable, (iii) work in progress, (iv) net amount of prepayments and payables, and (v) outstanding long-term notes receivables (lease purchase notes) (items (i) through (v), collectively, the “Purchase Price Components”), with the value of each Purchase Price Component determined as contemplated by Exhibit 1.3 attached hereto. The parties agree that at the Closing, the Purchase Price of $7,091,059 shall be adjusted by an amount of dollars, positive or negative, as the case may be, to reflect the difference between $7,091,059 and the sum of $2,446,521 and the aggregate value, as of the Closing Date, of the Company’s Purchase Price Components, with the value of each Purchase Price Component determined as contemplated by Exhibit 1.3 attached hereto (the net amount of any such adjustment, the “Purchase Price Adjustment”). At least ten (10) calendar days prior to the Closing Date, the Seller shall prepare and deliver to the Buyer in good faith its estimate of the Purchase Price Adjustment, if any, (the “Estimated Purchase Price Adjustment”) showing the adjustments contemplated by this Section 1.3 for the Buyer’s review and comment. At the Closing, the Purchase Price shall be adjusted to reflect the Estimated Purchase Price Adjustment, subject to further adjustment post-Closing as contemplated by Section 1.3(b).
(b) Within thirty (30) calendar days following the Closing Date, the Seller shall prepare and deliver to the Buyer in good faith a final closing statement setting forth the Purchase Price Adjustment in accordance with this Section 1.3 (the “Final Closing Statement”). Within thirty (30) calendar days following the Buyer’s receipt of the Final Closing Statement, the Buyer may object in good faith to the Purchase Price Adjustment (as reflected on the Final Closing Statement) in writing. In the event of any such objection, the Buyer and the Seller shall attempt to resolve their differences by negotiation. If such Parties are unable to do so within thirty (30) calendar days following Seller’s receipt of the Buyer’s objection, the Seller and the Buyer shall appoint a nationally recognized accounting firm mutually acceptable to each of the Seller and the Buyer, which shall, at the Seller’s and the Buyer’s joint expense, review the Final Cl...
Purchase Price Adjustment. (a) Exhibit 2.3(a) sets forth an adjusted balance sheet of the Company as of November 30, 1996 prepared in accordance with and adjusted pursuant to the Accounting Principles and Procedures for purposes of determining the "Net Asset Amount" of the Company at November 30, 1996 (the "Adjusted November Balance Sheet").
(b) Purchaser and Seller agree to accept the Accounting Principles and Procedures for all purposes of this Section 2.3, including, without limitation, for purposes of preparation of the Adjusted November Balance Sheet, the Estimated Closing Date Balance Sheet and the Closing Date Balance Sheet.
(c) Not fewer than three Business Days before the Closing Date, Seller shall deliver to Purchaser (i) a balance sheet (the "Estimated Closing Date Balance Sheet") based upon the books and records of the Company and prepared in accordance with and adjusted pursuant to the Accounting Principles and Procedures and reflecting Seller's best estimate of each of the items, and the amounts thereof, to be included on the Closing Date Balance Sheet and (ii) a certificate of Seller, duly executed by an executive officer of Seller, stating that the Estimated Closing Date Balance Sheet has been prepared in good faith, has been prepared in accordance with and adjusted pursuant to the Accounting Principles and Procedures, and reflects Seller's best estimate of, and to the best Knowledge of Seller, fairly presents each of the items, and the amounts thereof, to be included on the Closing Date Balance Sheet.
(d) If the Net Asset Amount of the Company as shown on the Estimated Closing Date Balance Sheet is greater than the Net Asset Amount shown on the Adjusted November Balance Sheet, the payment of the Fixed Amount to Seller on the Closing Date shall be increased, as a preliminary adjustment to the Fixed Amount as provided in Section 2.2(b), by the amount of such excess (the "Estimated Price Increase"). If the Net Asset Amount of the Company as shown on the Estimated Closing Date Balance Sheet is less than the Net Asset Amount as shown on the Adjusted November Balance Sheet, the payment of the Fixed Amount to Seller on the Closing Date shall be decreased, as a preliminary adjustment to the Fixed Amount as provided in Section 2.2(b), by the amount of such deficiency (the "Estimated Price Decrease").
(e) As of the close of business on the last day of the fiscal month of the Company in which the Closing occurs, or at such other time on such other date as near as practicable t...
Purchase Price Adjustment. (a) As an adjustment to the Initial Purchase Price,
(i) if the Settlement Amount is greater than zero, the Purchaser shall pay to the Seller such Settlement Amount in the manner provided in clause (c) or (e), as the case may be, of this Section 3.01; or
(ii) if the Settlement Amount is less than zero, the Seller shall pay to the Purchaser the absolute value of such Settlement Amount in the manner provided in clause (d) or (e), as the case may be, of this Section 3.01.
(b) Payment of the Settlement Amount shall be in cash or validly issued shares of Common Stock (“Payment Shares”), as the Purchaser shall elect, which binding election shall be made no later than the second Business Day following the Valuation Completion Date and communicated to the Seller in writing; provided that if the Purchaser fails to make such an election in the manner contemplated hereunder, the Purchaser shall be deemed to have elected settlement in cash; and provided further that the Purchaser shall not have the right to elect delivery of the Settlement Amount or receipt of the absolute value of the Settlement Amount in Payment Shares pursuant to this Section 3.01 if:
(i) the representations and warranties made by the Purchaser to the Seller in Section 5.01 are not true and correct in all material respects as of the date the Purchaser makes such election; or
(ii) in the event the Settlement Amount shall be payable by the Purchaser to the Seller, the Purchaser has taken any action that would make unavailable either (A) the exemption set forth in Section 4(2) of the Securities Act for the sale of any Payment Shares by the Purchaser to the Seller or (B) an exemption from the registration requirements of the Securities Act reasonably acceptable to the Seller for resales of Payment Shares by the Seller. For the avoidance of doubt, upon the Purchaser’s making an election to receive or to deliver Payment Shares pursuant to this Section 3.01(b), the Purchaser shall be deemed to make the representations and warranties in Section 5.01 hereof as if made on the date of the Purchaser’s election.
(c) Subject to Section 3.01(b), if the Settlement Amount shall be payable by the Purchaser to the Seller:
(i) Notwithstanding any election by the Purchaser to make payment in Payment Shares, at any time prior to the time the Seller (or any affiliate of the Seller) has contracted to resell such Payment Shares, the Purchaser may deliver in lieu of such Payment Shares an amount in cash equal to the Settleme...