Common use of Purchase Price Adjustment Clause in Contracts

Purchase Price Adjustment. If the Buyer and the Sellers are unable to mutually agree on the Estimated Purchase Price pursuant to Section 2.1(c), then within ten (10) days following the Closing Date the Buyer shall provide the Sellers Representative written notice of the components of the Purchase Price to which the Buyer objects and its proposed calculation of such components (the “Objection Notice”); provided, however, that (a) the Buyer shall only be entitled to object to any component of the Purchase Price to the extent it objected to such component pursuant to Section 2.1(c). For purposes of clarity, the Parties acknowledge and agree that the Buyer shall not be permitted to object to (i) the Purchase Price unless the Buyer objected to the Purchase Price prior to the Closing pursuant to Section 2.1(c) and (ii) any component of the Purchase Price (A) that the Buyer did not object to prior to the Closing pursuant to Section 2.1(c) or (B) to which the Buyer and the Sellers reached an agreement pursuant to Section 2.1(c). The Buyer and the Sellers shall be deemed to have agreed upon all items and amounts that are not disputed by the Buyer in the Objection Notice. The Parties shall use reasonable efforts to resolve in good faith during the thirty (30) days following delivery of the Objection Notice any dispute properly asserted in the Objection Notice. If the Parties are unable to resolve any disputed items within thirty (30) days following delivery of the Objection Notice, the disagreement may be submitted for resolution to a firm of independent accountants of national standing to which the Buyer and the Sellers agree (the “Independent Accountants”), which firm shall make a final and binding determination as to only those components of the Purchase Price in dispute with respect to this Section 2.5 on a timely basis and promptly shall notify the Parties in writing of its resolution. The Independent Accountants shall not have the power to modify or amend any term or provision of this Agreement or modify previously agreed to items among the Parties. The costs and expenses of the Independent Accountants shall be allocated between the Parties based upon the percentage which the portion of the contested amount not awarded to each Party bears to the amount actually contested by such Party, as determined by the Independent Accountants. If the Buyer does not provide an Objection Notice within the time period and in the manner set forth in this Section 2.5, the Estimated Purchase Price Purchase Price set forth in the Estimated Purchase Price Statement shall be final and binding on the Parties for all purposes hereunder. If the Purchase Price paid by the Buyer pursuant to Section 2.3(a)(i), exceeds the Purchase Price that would have been paid had the amounts of the components determined by the Independent Accountants been used to determine the Purchase Price, the Sellers shall (by wire transfer of immediately available funds in U.S. Dollars to such account or accounts specified by the Buyer to the Sellers concurrently with the delivery of the Objection Notice) pay the Buyer, an amount equal to such excess.

Purchase Price Adjustment. If (a) In the Buyer event that circumstances exist that require the parties to negotiate in good faith cooperative arrangements under Section 2.12 or potential amendments to this Agreement pursuant to Sections 8.5 and 9.5 (dealing with possible subsequent transfers of Transferred Assets after the Sellers are unable Closing in the event of certain injunctions) or potential amendments to mutually agree on the Estimated Management Agreement referred to in Section 2.15, or to negotiate in good faith equitable adjustments in the Purchase Price pursuant to the provisions of the foregoing Sections, or the provisions of Section 2.1(c8.6 (respecting the condition of title to interests in real property) (Sections 2.12, 2.15, 8.5, 8.6 and 9.5 being collectively referred to as the "Adjustment Sections"), then and in any of such events, such negotiations, and the resolution of disagreements arising therefrom, shall be conducted in accordance with the provisions of this Section 2.14. The parties shall negotiate such cooperative arrangements, potential amendments and equitable adjustments in the Purchase Price in good faith prior to any scheduled Closing Date (as may be extended by mutual agreement of the parties), and, in connection with an adjustment to the Purchase Price, shall also negotiate appropriate amendments to the Allocation Schedule arising therefrom, provided that any adjustment in the Purchase Price shall be consistent with the original Allocation Schedule. If the parties are unable to agree by the day prior to such scheduled Closing Date, then such scheduled Closing Date (and the Termination Date, if necessary) shall be extended for up to 15 business days to provide for the opportunity to resolve such disagreement pursuant to the provisions of this Section 2.14. On the day the Closing would have occurred but for the absence of agreement between the parties, each party shall designate an individual (who may not be a present or former officer, director, partner or employee of the party or of any present or former investment banker, accounting firm, law firm or attorney regularly used by the party) to mediate such disagreement, and advise the other party in writing of the identity of such individual, which advice shall be accompanied by a list of up to ten suggested neutral individuals to serve as a third mediator. The mediators originally designated by each party shall promptly confer about the selection of a third mediator from such lists, and within ten (10) five business days following the originally scheduled Closing Date (or Termination Date, as the Buyer case may be), the originally designated mediators shall provide agree upon and (subject to availability) select the Sellers Representative written notice third mediator from the lists submitted by the parties or otherwise, provided that if the originally designated mediators cannot agree upon a third mediator by such date, the third mediator shall be designated by the Alternative Dispute Resolution Service of NHLA/AAHA, Inc. The three mediators so selected are herein referred to as the "Panel". Within two business days following the designation of the components of third mediator, each party shall submit to the Panel, in writing, its proposed cooperative arrangements, amendments to this Agreement, amendments to the Management Agreements and/or equitable adjustments in the Purchase Price to which in the Buyer objects and its proposed calculation absence of any such components (the “Objection Notice”); providedcooperative arrangements or amendments, however, that (a) the Buyer shall only be entitled to object to any component of the Purchase Price to the extent it objected to such component pursuant to Section 2.1(c). For purposes of clarity, the Parties acknowledge and agree except that the Buyer shall not be permitted to object to (i) the Purchase Price unless the Buyer objected parties need only submit their proposed adjustments to the Purchase Price prior (and proposed amendments to the Closing pursuant Allocation Schedule) in the case of disagreements about adjustments for certain acquisitions and modifications under Section 2.12(b), or imperfections of title under Section 8.6). Such proposals shall be materially in accordance with the last proposals made by such party to Section 2.1(c) and (ii) any component the other party during the course of the Purchase Price (A) that aforementioned good faith negotiations between the Buyer did not object to prior to the Closing pursuant to Section 2.1(c) or (B) to which the Buyer and the Sellers reached an agreement pursuant to Section 2.1(c)parties. The Buyer parties shall additionally submit such memoranda, arguments, briefs and evidence in support of their respective positions, and in accordance with such procedures, as a majority of the Sellers shall be deemed to have agreed upon all items and amounts that are not disputed by the Buyer in the Objection NoticePanel may determine. The Parties shall use reasonable efforts to resolve in good faith during the thirty (30) Within seven business days following delivery the designation of the Objection Notice any dispute properly asserted in the Objection Notice. If the Parties are unable to resolve any disputed items within thirty (30) days following delivery of the Objection Noticethird mediator, the disagreement may be submitted for resolution to a firm Panel shall, by majority vote, select the proposed cooperative arrangements, amendments or adjustments of independent accountants of national standing to which the Buyer and the Sellers agree (the “Independent Accountants”), which firm shall make a final and binding determination as to only those components of the Purchase Price in dispute with respect to this Section 2.5 on a timely basis and promptly shall notify the Parties in writing of its resolution. The Independent Accountants shall not have the power to modify or amend any term or provision of this Agreement or modify previously agreed to items among the Parties. The costs and expenses of the Independent Accountants shall be allocated between the Parties based upon the percentage which the portion of the contested amount not awarded to each Party bears to the amount actually contested by such Party, as determined by the Independent Accountants. If the Buyer does not provide an Objection Notice within the time period and in the manner set forth in this Section 2.5, the Estimated Purchase Price Purchase Price set forth in the Estimated Purchase Price Statement shall be final and binding on the Parties for all purposes hereunder. If the Purchase Price paid by the Buyer pursuant to Section 2.3(a)(i), exceeds the Purchase Price that would have been paid had the amounts of the components determined by the Independent Accountants been used to determine the Purchase Price, as the Sellers shall (case may be, proposed by wire transfer one of immediately available funds the parties, it being agreed that the Panel may modify such proposal in U.S. Dollars to such account or accounts specified by any way which is not otherwise inconsistent with the Buyer terms of this Agreement. Thereafter, the parties shall, subject to the Sellers concurrently terms and conditions of this Agreement, consummate the Transactions on the basis of such selected cooperative arrangements, amendments or adjustments at a mutually agreeable time and place or places, in accordance with the delivery provisions of Section 2.13, which shall be no later than the 15th business day following the originally scheduled Closing Date or such later date as the parties may agree upon. Subject to the foregoing, the Panel may determine the issues in dispute following such procedures, consistent with the language of this Agreement, as it deems appropriate to the circumstances and with reference to the amounts in issue. No particular procedures are intended to be imposed upon the Panel, it being the desire of the Objection Notice) pay parties that any such disagreement shall be resolved as expeditiously and inexpensively as reasonably practicable. No member of the BuyerPanel shall have any liability to the parties in connection with service on the Panel, an amount equal and the parties shall provide such indemnities to such excessthe members of the Panel as they shall request.

Purchase Price Adjustment. If Sellers and Buyers shall jointly, within sixty (60) calendar days after the Buyer Closing Date, prepare (i) a consolidated balance sheet of Sellers as of the Closing Date, (ii) a consolidating balance sheet of Sellers as of the Closing Date, and the Sellers are unable to mutually agree on the Estimated Purchase Price pursuant to Section 2.1(c), then within ten (10iii) days following a balance sheet of each Seller as of the Closing Date the Buyer shall provide the Sellers Representative written notice of the components of the Purchase Price to which the Buyer objects and its proposed calculation of such components (the “Objection Notice”); provided, however, that (a) the Buyer shall only be entitled to object to any component of the Purchase Price to the extent it objected to such component pursuant to Section 2.1(c"Closing Balance Sheets"). For Purchase Price adjustment considerations, the Closing Balance Sheets shall be prepared on a consistent basis with the accounting practices and procedures applied by Sellers in the preparation of the Interim Balance Sheet and, for purposes of claritythis Section 3.01(b), in the absence of manifest error (which shall not include any matters relating to practices and procedures applied by Sellers in preparing the Interim Balance Sheet), the Parties acknowledge only adjustments to accounting reserves and agree that accruals reflected therein shall be those made to reflect changes in such reserves and accruals between the Buyer shall date of the Interim Balance Sheet and the date of the Closing Balance Sheet. In the event of a dispute between the parties regarding the preparation of the Closing Balance Sheets, which dispute cannot be permitted to object to (i) reconciled by the Purchase Price unless the Buyer objected to the Purchase Price prior to the Closing pursuant to Section 2.1(c) and (ii) any component mutual agreement of the Purchase Price parties within fifteen (A15) that business days after one of the Buyer did not object to prior to parties has notified the Closing pursuant to Section 2.1(c) or other party thereof, the parties shall together select a mutually acceptable Big Six public accounting firm (B) to which the Buyer and the Sellers reached an agreement pursuant to Section 2.1(c). The Buyer and the Sellers shall be deemed to have agreed upon all items unrelated to, and amounts that are not disputed in any manner affiliated with, either Buyers or Sellers or Parent or their respective shareholders, officers, or Affiliates, and not currently or within the two-year period employed or engaged by the Buyer in the Objection Notice. The Parties shall use reasonable efforts to resolve in good faith during the thirty (30) days following delivery of the Objection Notice any dispute properly asserted in the Objection Notice. If the Parties are unable to resolve any disputed items within thirty (30) days following delivery of the Objection Noticeeither Buyers or Sellers or Parent or their respective shareholders, the disagreement may be submitted for resolution to a firm of independent accountants of national standing to which the Buyer and the Sellers agree (the “Independent Accountants”officers, or Affiliates), which firm shall make a final and binding an independent determination as to only those components of the Purchase Price in dispute disputed item or items consistent with respect to this Section 2.5 on a timely basis and promptly shall notify the Parties in writing of its resolution. The Independent Accountants shall not have the power to modify or amend any term or provision of this Agreement or modify previously agreed to items among the Parties. The costs and expenses of the Independent Accountants shall be allocated between the Parties based upon the percentage which the portion of the contested amount not awarded to each Party bears to the amount actually contested by such Party, as determined by the Independent Accountants. If the Buyer does not provide an Objection Notice within the time period and in the manner criteria set forth in this Section 2.5, the Estimated Purchase Price Purchase Price set forth 3.01(b). Such independent determination shall (in the Estimated Purchase Price Statement shall absence of fraud, bad faith, undue influence, or the like, or manifest error) be final and binding on all of the Parties for all purposes hereunderparties hereto. If All fees, costs and expenses incurred in retaining such independent accounting firm shall be paid in equal shares by Buyers and Sellers. Within ten (10) calendar days after (i) the completion of mutually agreed upon Closing Balance Sheets or (ii) the resolution of any dispute relating thereto submitted to an independent Big Six public accounting firm, whichever the case may be, the following Purchase Price Adjustment shall be paid by the Buyer pursuant to Section 2.3(a)(i), exceeds the Purchase Price that would have been paid had the amounts of the components determined by the Independent Accountants been used to determine the Purchase Price, the Sellers shall (by wire transfer of immediately available funds in U.S. Dollars to such account or accounts specified by the Buyer to the Sellers concurrently with the delivery of the Objection Notice) pay the Buyer, an amount equal to such excess.parties:

Purchase Price Adjustment. If the Buyer and the Sellers are unable to mutually agree on the Estimated Purchase Price pursuant to Section 2.1(c), then within ten (10a) Within 90 days following the Closing Date the Date, Buyer shall prepare and deliver to Seller its calculation (to be made in accordance with the terms of Section 1.2) of the Cash Obligation Liabilities Excess Amount (if any), the Cash Amount and the Accrued Unfunded Pension Liability (the “Proposed Closing Statement” and, in its final and binding form after resolution of any disputes pursuant to this Section 1.4(a), the “Actual Closing Statement”) and the adjusted Closing Purchase Price resulting from the Proposed Closing Statement, together with a copy of all supporting work papers (including schedules, memoranda and other documents) utilized in the preparation of the Proposed Closing Statement and the calculation of the Closing Purchase Price, and Seller shall have a period of 30 days (the “Objection Period”) after delivery of the Proposed Closing Statement in which to provide the Sellers Representative written notice to Buyer of the components of the Purchase Price to which the Buyer objects and its proposed calculation of such components any objections thereto (the “Objection Notice”); provided, however, that (a) setting forth the Buyer shall only be entitled to object to any component specific item of the Proposed Closing Statement to which each such objection relates and the basis for each such objection in reasonable detail. The Proposed Closing Statement and the resulting Closing Purchase Price to the extent it objected to such component pursuant to Section 2.1(c). For purposes of clarity, the Parties acknowledge and agree that the Buyer shall not be permitted to object to (i) the Purchase Price unless the Buyer objected to the Purchase Price prior to the Closing pursuant to Section 2.1(c) and (ii) any component of the Purchase Price (A) that the Buyer did not object to prior to the Closing pursuant to Section 2.1(c) or (B) to which the Buyer and the Sellers reached an agreement pursuant to Section 2.1(c). The Buyer and the Sellers shall be deemed to have agreed upon all items be accepted by Seller, and amounts that are not disputed by the Buyer in the Objection Notice. The Parties shall use reasonable efforts to resolve in good faith during the thirty (30) days following delivery of the Objection Notice any dispute properly asserted in the Objection Notice. If the Parties are unable to resolve any disputed items within thirty (30) days following delivery of the Objection Notice, the disagreement may be submitted for resolution to a firm of independent accountants of national standing to which the Buyer and the Sellers agree (the “Independent Accountants”), which firm shall make a final and binding determination as to only those components of the Purchase Price in dispute with respect to this Section 2.5 on a timely basis and promptly shall notify the Parties in writing of its resolution. The Independent Accountants shall not have the power to modify or amend any term or provision of this Agreement or modify previously agreed to items among the Parties. The costs and expenses of the Independent Accountants shall be allocated between the Parties based upon the percentage which the portion of the contested amount not awarded to each Party bears to the amount actually contested by such Party, as determined by the Independent Accountants. If the Buyer does not provide an Objection Notice within the time period and in the manner set forth in this Section 2.5, the Estimated Purchase Price Purchase Price set forth in the Estimated Purchase Price Statement shall be become final and binding on the Parties for all purposes hereunder. If parties, on the Purchase Price paid by the Buyer pursuant to Section 2.3(a)(i), exceeds the Purchase Price that would have been paid had the amounts later of the components determined by the Independent Accountants been used to determine the Purchase Price, the Sellers shall (by wire transfer of immediately available funds in U.S. Dollars to such account or accounts specified by the Buyer to the Sellers concurrently with the delivery expiration of the Objection NoticePeriod or the date on which all objections have been resolved by the parties or the Accountant (as defined below) pay pursuant to this Section 1.4(a). If Seller gives any such Objection Notice within the BuyerObjection Period, an amount equal then Seller and Buyer shall attempt in good faith to resolve any dispute concerning the item(s) subject to such excessObjection Notice as soon as practicable. If Seller and Buyer do not resolve any dispute arising in connection with the Proposed Closing Statement within the time period specified below, such dispute shall be resolved in accordance with the procedures set forth in Section 1.4(b) below.

Purchase Price Adjustment. If the Buyer Purchaser and the Sellers are unable to mutually Seller agree on the Estimated Purchase Price pursuant to Section 2.1(c), then within ten (10) days following the Closing Date the Buyer shall provide the Sellers Representative written notice of the components of that the Purchase Price to which the Buyer objects and its proposed calculation of such components shall be adjusted (the “Objection Notice”); provided, however, that (a) the Buyer shall only be entitled to object to any component of the Purchase Price to the extent it objected to such component pursuant to Section 2.1(c). For purposes of clarity, the Parties acknowledge and agree that the Buyer shall not be permitted to object Adjustment”) by an amount equal to (i) the Purchase Price unless the Buyer objected to the Purchase Price ten million dollars ($10,000,000), LESS (ii) costs incurred by Seller prior to the Closing pursuant to Section 2.1(c) Date as set forth on Schedule 3.4(A), which may be amended by Purchaser and (ii) any component of the Purchase Price (A) that the Buyer did not object to Seller in writing prior to the Closing Date, (but specifically excluding those costs set forth on Schedule 3.4(B), which will not be deducted from (i)), LESS (iii) if the Closing Date occurs after July 31, 2008, an amount equal to (a) one million dollars ($1,000,000) multiplied by (b) the number of full calendar months plus the fractional portion of any calendar month occurring after July 31, 2008 and prior to the date on which the Closing Date occurs. For the avoidance of doubt, nothing in this Section 3.4 shall affect in any manner the parties’ rights and obligations set forth in Article IV with respect to the Closing Date and termination of this Agreement. The amount calculated in accordance with clause (iii) of the first sentence of this Section 3.4 shall be zero if the primary reason for the Closing Date occurring after July 31, 2008 is (1) Seller’s breach of this Agreement, (2) pursuant to Purchaser’s exercise of the Purchaser Extension in Section 2.1(c) 4.3 and the Closing occurring on or before August 31, 2008, or (B3) Purchaser’s inability to which satisfy the Buyer condition specified in Section 9.1(g) hereof; provided, that Purchaser makes any required filings to initiate the process of applying for such Permits within three (3) Business Days after the date of this Agreement and the Sellers reached an agreement pursuant to Section 2.1(c). The Buyer and the Sellers shall be deemed to have agreed upon all items and amounts that are not disputed by the Buyer in the Objection Notice. The Parties shall use uses its commercially reasonable efforts to resolve in good faith during the thirty (30) days following delivery of the Objection Notice obtain such Permits. Notwithstanding any dispute properly asserted in the Objection Notice. If the Parties are unable to resolve any disputed items within thirty (30) days following delivery of the Objection Notice, the disagreement may be submitted for resolution to a firm of independent accountants of national standing to which the Buyer and the Sellers agree (the “Independent Accountants”), which firm shall make a final and binding determination as to only those components of the Purchase Price in dispute with respect to this Section 2.5 on a timely basis and promptly shall notify the Parties in writing of its resolution. The Independent Accountants shall not have the power to modify or amend any term or other provision of this Agreement or modify previously agreed to items among the Parties. The costs and expenses of the Independent Accountants Agreement, in no event shall be allocated between the Parties based upon the percentage which the portion of the contested amount not awarded to each Party bears to the amount actually contested by calculated in accordance with such Party, as determined by the Independent Accountants. If the Buyer does not provide an Objection Notice within the time period and in the manner set forth in this Section 2.5, the Estimated Purchase Price Purchase Price set forth in the Estimated Purchase Price Statement shall be final and binding on the Parties for all purposes hereunderclause (iii) exceed five million dollars ($5,000,000). If the Purchase Price paid by the Buyer pursuant to Section 2.3(a)(i)Adjustment is a positive number, exceeds then the Purchase Price that would have been paid had Adjustment will reduce the amounts Purchase Price pursuant to the calculation in Sections 3.1 and 3.2. If the Purchase Price Adjustment is a negative number, then the absolute value of the components determined by the Independent Accountants been used to determine Purchase Price Adjustment will increase the Purchase Price, the Sellers shall (by wire transfer of immediately available funds in U.S. Dollars to such account or accounts specified by the Buyer Price pursuant to the Sellers concurrently with the delivery of the Objection Notice) pay the Buyer, an amount equal to such excesscalculation in Sections 3.1 and 3.2.

Purchase Price Adjustment. If In the Buyer event there shall be an inaccuracy in any of the representations or warranties of Seller or a breach by Seller of one or more covenants to be performed by Seller prior to Closing, which inaccuracy or breach is Material and such inaccuracy or breach does not constitute a failure of the Sellers are unable conditions to mutually agree on the Estimated Purchase Price pursuant Buyer's obligation to close as set forth in Section 2.1(c12.02(a), then within ten (10) days following the Closing Date the Buyer or there shall provide the Sellers Representative written notice be a Material loss or damage to any of the components Assets as a result of the Purchase Price fire or other casualty and Seller does not elect to which the Buyer objects and its proposed calculation of restore such components (the “Objection Notice”); provided, however, that (a) the Buyer shall only be entitled to object to any component of the Purchase Price to the extent it objected to such component pursuant to Assets as provided in Section 2.1(c). For purposes of clarity8.09, the Parties acknowledge and shall use all reasonable efforts to agree that the Buyer shall not be permitted prior to object Closing to (i) the Purchase Price unless the Buyer objected a downward adjustment to the Purchase Price prior in an amount equal to the Closing pursuant to Section 2.1(c) and (ii) decline in value of any component of the Purchase Price (A) that Assets resulting from such inaccuracy, breach, loss or damage. In this regard, the Buyer did not object to prior to the Closing pursuant to Section 2.1(c) or (B) to which the Buyer and the Sellers reached an agreement pursuant to Section 2.1(c). The Buyer and the Sellers decline in value shall be deemed on a dollar-for-dollar basis for balance sheet items and, with respect to have other items affecting value, shall be as mutually agreed upon all items and amounts that are not disputed by the Buyer in the Objection Notice. The Parties shall use reasonable efforts to resolve in good faith during the thirty (30) days following delivery of the Objection Notice any dispute properly asserted in the Objection NoticeParties. If the Parties are unable to resolve any disputed items within thirty (30) days following delivery of agree on the Objection Notice, the disagreement may be submitted for resolution to a firm of independent accountants of national standing to which the Buyer and the Sellers agree (the “Independent Accountants”), which firm shall make a final and binding determination as to only those components amount of the Purchase Price in dispute with respect adjustment prior to this Section 2.5 on a timely basis Closing, and promptly shall notify all of the conditions to the obligations of the Parties in writing of its resolution. The Independent Accountants shall not to close have the power to modify been satisfied or amend any term or provision of this Agreement or modify previously agreed to items among the Parties. The costs and expenses of the Independent Accountants shall be allocated between waived, the Parties based upon shall proceed to close the percentage which transaction contemplated hereby and the portion of the contested amount not awarded to each Party bears to disagreement regarding the amount actually contested by such Party, as determined by the Independent Accountants. If the Buyer does not provide an Objection Notice within the time period and in the manner set forth in this Section 2.5, the Estimated Purchase Price Purchase Price set forth in the Estimated Purchase Price Statement shall be final and binding on the Parties for all purposes hereunder. If of the Purchase Price paid by adjustment shall be resolved in accordance with the Buyer pursuant to dispute resolution procedure described in Section 2.3(a)(i3.05(b), exceeds with the 30-day period referred to in the first sentence thereof beginning on the Closing Date. Once such disagreement is resolved, Seller shall then pay to Buyer the amount of such adjustment, if any, with interest at the rate provided in Section 3.05(d)(i) from the Closing Date through the date of payment. Notwithstanding anything herein to the contrary, no downward adjustment in the Purchase Price that would have been paid had the amounts of the components determined by the Independent Accountants been used to determine the Purchase Price, the Sellers shall (by wire transfer of immediately available funds in U.S. Dollars to such account or accounts specified by the Buyer be made under this Section 3.08 to the Sellers concurrently with extent that the delivery of amount thereof is subject to adjustment under the Objection Notice) pay the Buyer, an amount equal to such excessInventory evaluation procedures elsewhere in this Article 3.

Purchase Price Adjustment. If at any time during the Buyer and Commitment Period the Sellers are unable Company or any Subsidiary (with respect to mutually agree on Capital Shares Equivalents) shall offer, sell, grant any option to purchase, or otherwise dispose of (or announce any offer, sale, grant or any option to purchase or other disposition) any of shares of Common Stock or Capital Shares Equivalents at a price that is, at the Estimated Purchase Price pursuant issuance thereof, or at any later time due to Section 2.1(c)adjustment, then within ten (10) days following the Closing Date the Buyer shall provide the Sellers Representative written notice of the components of reset, additional issuances or otherwise, less than the Purchase Price for any Put Shares (assuming for the purposes hereof that a Put Notice is delivered on the date of the issuance at issue), then, at the option of the Investor for such subsequent Closings as the Investor shall indicate, the Purchase Price shall be adjusted to which mirror the Buyer objects and its proposed calculation conversion, exchange or purchase price for such Common Stock or Capital Shares Equivalents (including any reset provisions thereof) at issue. Such adjustment shall be made whenever such Common Stock or Capital Shares Equivalents are issued. If the holder of the Common Stock or Common Stock Equivalent so issued shall at any time, whether by operation of purchase price adjustments, reset provisions, floating conversion, exercise or exchange prices or otherwise, or due to warrants, options or rights issued in connection with such components (the “Objection Notice”); providedissuance, however, that (a) the Buyer shall only be entitled to object to any component receive shares of the Purchase Price to the extent it objected to such component pursuant to Section 2.1(c). For purposes of clarity, the Parties acknowledge and agree that the Buyer shall not be permitted to object to (i) the Purchase Price unless the Buyer objected to the Purchase Price prior to the Closing pursuant to Section 2.1(c) and (ii) any component of Common Stock at a price less than the Purchase Price (A) assuming for the purposes hereof that a Put Notice is delivered on the Buyer did not object to prior to date of the Closing pursuant to Section 2.1(c) or (B) to which the Buyer and the Sellers reached an agreement pursuant to Section 2.1(cissuance at issue). The Buyer and the Sellers , such issuance shall be deemed to have agreed upon all items and amounts that are not disputed by occurred for less than the Buyer in the Objection NoticePurchase Price. The Parties shall use reasonable efforts to resolve in good faith during the thirty (30) days following delivery of the Objection Notice any dispute properly asserted in the Objection Notice. If the Parties are unable to resolve any disputed items within thirty (30) days following delivery of the Objection Notice, the disagreement may be submitted for resolution to a firm of independent accountants of national standing to which the Buyer and the Sellers agree (the “Independent Accountants”), which firm shall make a final and binding determination as to only those components of the Purchase Price in dispute with respect to this Section 2.5 on a timely basis and promptly Company shall notify the Parties Investor in writing writing, no later than the Trading Day following the issuance of its resolutionany Common Stock or Common Stock Equivalent subject to this section, indicating therein the applicable issuance price, or of applicable reset price, exchange price, conversion price and other pricing terms. The Independent Accountants shall not have the power to modify or amend any term or provision of this Agreement or modify previously agreed to items among the Parties. The costs and expenses of the Independent Accountants shall be allocated between the Parties based upon the percentage which the portion of the contested amount not awarded to each Party bears to the amount actually contested by such Party, as determined by the Independent Accountants. If the Buyer does not provide an Objection Notice within the time period and in the manner set forth purchase price adjustment discussed in this Section 2.5, the Estimated Purchase Price Purchase Price set forth 5.11 shall not apply to any issuances of Common Stock or Capital Shares Equivalents as discussed in the Estimated Purchase Price Statement shall be final and binding on the Parties for all purposes hereunder. If the Purchase Price paid by the Buyer pursuant to Section 2.3(a)(i5.5(e), exceeds the Purchase Price that would have been paid had the amounts of the components determined by the Independent Accountants been used to determine the Purchase Price, the Sellers shall (by wire transfer of immediately available funds in U.S. Dollars to such account or accounts specified by the Buyer to the Sellers concurrently with the delivery of the Objection Notice) pay the Buyer, an amount equal to such excess.

Purchase Price Adjustment. If (a) Within ninety (90) days after the Buyer Closing Date, Seller shall deliver to Inventory Purchaser an unaudited statement of its good faith estimate of the Inventories as of the Closing Date, determined in accordance with GAAP and the Sellers are unable to mutually agree agreed price per unit set forth on the Estimated Purchase Price pursuant to Section 2.1(c), then within ten (10Schedule 2.1(b) days following the Closing Date the Buyer shall provide the Sellers Representative written notice of the components of the Purchase Price to which the Buyer objects and its proposed calculation of such components (the “Objection Notice”"Inventories Statement"). For purposes of determining the Inventories Statement only, any Inventory that is determined by Seller or Inventory Purchaser to be Damaged Inventory shall be disregarded; provided, however, that Inventory Purchaser shall notify Seller promptly in writing, but in no event later than forty-five (a45) days immediately following the Buyer Closing Date, of any such Inventory that Inventory Purchaser deems to be Damaged Inventory in accordance with this Section 2.7(a) and describing with specificity the SKU and batch, the reason such Inventory is considered Damaged Inventory and such other information as reasonably requested by Seller. The failure by Inventory Purchaser to provide such notice to Seller within such forty-five (45) day period shall only be entitled to object to any component constitute Inventory Purchaser's acceptance of all the Purchase Price to items reflected on the extent it objected to such component pursuant to Section 2.1(c)Inventories Statement as Inventory that is not Damaged Inventory. For purposes of claritySection 2.7(c), the Parties acknowledge and agree that the Buyer shall not be permitted to object to (i) the Purchase Price unless the Buyer objected to the Purchase Price prior to the Closing pursuant to Section 2.1(c) and (ii) any component of the Purchase Price (A) that the Buyer did not object to prior to the Closing pursuant to Section 2.1(c) or (B) to which the Buyer and the Sellers reached an agreement pursuant to Section 2.1(c). The Buyer and the Sellers such notice shall be deemed a "Disputed Item" and shall be subject to have agreed upon all items the terms and amounts that are not disputed conditions of Section 2.7(c). Inventory Purchaser and Seller shall provide the other and its representatives (including accountants), and any Person designated by Seller in writing, with reasonable access during regular business hours to the Buyer in the Objection Notice. The Parties shall use reasonable efforts to resolve in good faith during the thirty (30) days following delivery Inventories and such books and records of the Objection Notice any dispute properly asserted in Business constituting Purchased Assets as may be reasonably requested to facilitate the Objection Notice. If the Parties are unable to resolve any disputed items within thirty (30) days following delivery preparation of the Objection Notice, the disagreement may be submitted for resolution to a firm of independent accountants of national standing to which the Buyer Inventories Statement and the Sellers agree (the “Independent Accountants”), which firm shall make a final and binding determination as to only those components calculation of the Purchase Price in dispute with respect to this Section 2.5 on a timely basis and promptly shall notify the Parties in writing of its resolution. The Independent Accountants shall not have the power to modify or amend any term or provision of this Agreement or modify previously agreed to items among the Parties. The costs and expenses of the Independent Accountants shall be allocated between the Parties based upon the percentage which the portion of the contested amount not awarded to each Party bears to the amount actually contested by such Party, as determined by the Independent Accountants. If the Buyer does not provide an Objection Notice within the time period and in the manner set forth in this Section 2.5, the Estimated Purchase Price Purchase Price set forth in the Estimated Purchase Price Statement shall be final and binding on the Parties for all purposes hereunder. If the Purchase Price paid by the Buyer pursuant to Section 2.3(a)(i), exceeds the Purchase Price that would have been paid had the amounts of the components determined by the Independent Accountants been used to determine the Purchase Price, the Sellers shall (by wire transfer of immediately available funds in U.S. Dollars to such account or accounts specified by the Buyer to the Sellers concurrently with the delivery of the Objection Notice) pay the Buyer, an amount equal to such excessFinal Inventories.

Purchase Price Adjustment. If at any time during the Buyer and Commitment Period the Sellers are unable Company or any Subsidiary (with respect to mutually agree on Capital Shares Equivalents) shall offer, sell, grant any option to purchase, or otherwise dispose of (or announce any offer, sale, grant or any option to purchase or other disposition) any of shares of Common Stock or Capital Shares Equivalents at a price that is, at the Estimated Purchase Price pursuant issuance thereof, or at any later time due to Section 2.1(c)adjustment, then within ten (10) days following the Closing Date the Buyer shall provide the Sellers Representative written notice of the components of reset, additional issuances or otherwise, less than the Purchase Price for any Put Shares (assuming for the purposes hereof that a Put Notice is delivered on the date of the issuance at issue), then, at the option of the Investor for such subsequent Closings as the Investor shall indicate, the Purchase Price shall be adjusted to which equal the Buyer objects and its proposed calculation conversion, exchange or purchase price for such Common Stock or Capital Shares Equivalents (including any reset provisions thereof) at issue. Such adjustment shall be made whenever such Common Stock or Capital Shares Equivalents are issued. If the holder of the Common Stock or Common Stock Equivalent so issued shall at any time, whether by operation of purchase price adjustments, reset provisions, floating conversion, exercise or exchange prices or otherwise, or due to warrants, options or rights issued in connection with such components (the “Objection Notice”); providedissuance, however, that (a) the Buyer shall only be entitled to object to any component receive shares of the Purchase Price to the extent it objected to such component pursuant to Section 2.1(c). For purposes of clarity, the Parties acknowledge and agree that the Buyer shall not be permitted to object to (i) the Purchase Price unless the Buyer objected to the Purchase Price prior to the Closing pursuant to Section 2.1(c) and (ii) any component of Common Stock at a price less than the Purchase Price (A) assuming for the purposes hereof that a Put Notice is delivered on the Buyer did not object to prior to date of the Closing pursuant to Section 2.1(c) or (B) to which the Buyer and the Sellers reached an agreement pursuant to Section 2.1(cissuance at issue). The Buyer and the Sellers , such issuance shall be deemed to have agreed upon all items and amounts that are not disputed by occurred for less than the Buyer in the Objection NoticePurchase Price. The Parties Company shall use reasonable efforts to resolve notify the Investor in good faith during writing, no later than the thirty (30) days Trading Day following delivery the issuance of the Objection Notice any dispute properly asserted in the Objection Notice. If the Parties are unable to resolve any disputed items within thirty (30) days following delivery of the Objection Notice, the disagreement may be submitted for resolution to a firm of independent accountants of national standing to which the Buyer and the Sellers agree (the “Independent Accountants”), which firm shall make a final and binding determination as to only those components of the Purchase Price in dispute with respect Common Stock or Common Stock Equivalent subject to this Section 2.5 on a timely basis 5.11, indicating therein the applicable issuance price, or of applicable reset price, exchange price, conversion price and promptly shall notify the Parties in writing of its resolutionother pricing terms. The Independent Accountants shall not have the power to modify or amend any term or provision of this Agreement or modify previously agreed to items among the Parties. The costs and expenses of the Independent Accountants shall be allocated between the Parties based upon the percentage which the portion of the contested amount not awarded to each Party bears to the amount actually contested by such Party, as determined by the Independent Accountants. If the Buyer does not provide an Objection Notice within the time period and in the manner set forth restrictions contained in this Section 2.5, the Estimated Purchase Price Purchase Price set forth in the Estimated Purchase Price Statement 5.11 shall be final not apply to shares of Common Stock issuable upon exercise of any currently outstanding warrants and binding on the Parties for all purposes hereunder. If the Purchase Price paid by the Buyer pursuant to Section 2.3(a)(i), exceeds the Purchase Price that would have been paid had the amounts other outstanding convertible securities of the components determined by the Independent Accountants been used to determine the Purchase PriceCompany, the Sellers shall (by wire transfer of immediately available funds in U.S. Dollars to such account or accounts specified by the Buyer each case as and to the Sellers concurrently with the delivery extent disclosed in Section 4.3 and Schedule 4.3 (but not as to any amendments or modifications of the Objection Notice) pay terms of such securities after the Buyerdate of this Agreement, an amount equal to such excessincluding "back-dated" agreements).

Purchase Price Adjustment. If (i) Within sixty (60) days of the Buyer Closing and determined as of the Sellers are unable to mutually agree on Closing, Seller shall at its expense cause an audit for the Estimated Purchase Price pursuant to Section 2.1(c), then within ten purpose of preparing a statement of Subject Assets acquired and Assumed Liabilities (10the "Closing Statement of Assets and Liabilities") in the form attached hereto as Exhibit 1.3. Within five (5) days following completion of such audit, Seller shall prepare and deliver the Closing Date Statement of Assets and Liabilities to Buyer. The Closing Statement of Assets and Liabilities shall be accompanied by a check or wire transfer of an amount equal to the Buyer shall provide "Net Worth Difference" (as defined below), if any, together with interest as described in Section 1.3(a)(iv). It is understood by the Sellers Representative written notice parties hereto that any such payment may not represent payment in full of the components final Purchase Price, which such final Purchase Price shall be determined as provided in this Section 1.3. Said Statement shall (x) be complete and correct in all material respects, (y) represent a fair statement of the Purchase Price Subject Assets and Assumed Liabilities in all material respects and (z) be prepared on the same basis, and in accordance with generally accepted accounting principles using the same methods and procedures applied on a basis consistent with the methods and procedures used to which prepare the Buyer objects Base Balance Sheet. In addition, in preparing the Closing Statement of Assets and its proposed calculation of Liabilities, reserve levels, including reserves and allowances for accounts receivables, inventories, warranty claims, and other items, 5 11 shall be determined on a basis consistent with that used to determine such components (reserves in the “Objection Notice”); providedBase Balance Sheet, howeveradjusted only for changes in circumstances, that (a) such as known bad debts, increases in dollar amount or quantities, or identified potential liabilities. Notwithstanding the Buyer shall only be entitled to object to any component of the Purchase Price to the extent it objected to such component pursuant to Section 2.1(c). For purposes of clarityforegoing, the Parties acknowledge and parties hereto agree that the Buyer shall not be permitted to object to as follows: (i) the Purchase Price unless the Buyer objected to the Purchase Price prior to "Accrued warranty reserve" on the Closing pursuant to Section 2.1(c) Statement of Assets and Liabilities shall remain at $219,630 and not be reduced; (ii) any component the "Obsolescense reserve" on the Closing Statement of Assets and Liabilities shall be the Purchase Price sum of $591,992 from the Base Balance Sheet plus $439,000 that was recorded during the quarter ended June 30, 1997; (Aiii) that the Buyer did inventory accounts on the Closing Statement of Assets and Liabilities shall not object to prior be adjusted upward by $165,000 which Seller and Stockholder have indicated they believe is an amount by which such accounts in the aggregate were understated on the Base Balance Sheet on account of overhead; and (iv) the fixed asset depreciation accounts on the Closing Statement of Assets and Liabilities shall not be adjusted downward by $35,000 which amount Seller and Stockholder have indicated they believe is an amount by which such accounts in the aggregate were overstated on the Base Balance Sheet. Buyer's accountants will be provided reasonable and timely access to the Closing pursuant to Section 2.1(c) or (B) to which audit working papers of Seller's accountants documenting the Buyer and the Sellers reached an agreement pursuant to Section 2.1(c). The Buyer and the Sellers shall be deemed to have agreed upon all items and amounts that are not disputed by the Buyer procedures they performed in the Objection Notice. The Parties shall use reasonable efforts to resolve in good faith during the thirty (30) days following delivery of the Objection Notice any dispute properly asserted in the Objection Notice. If the Parties are unable to resolve any disputed items within thirty (30) days following delivery of the Objection Notice, the disagreement may be submitted for resolution to a firm of independent accountants of national standing to which the Buyer and the Sellers agree (the “Independent Accountants”), which firm shall make a final and binding determination as to only those components of the Purchase Price in dispute with respect to this Section 2.5 on a timely basis and promptly shall notify the Parties in writing of its resolution. The Independent Accountants shall not have the power to modify or amend any term or provision of this Agreement or modify previously agreed to items among the Parties. The costs and expenses of the Independent Accountants shall be allocated between the Parties based upon the percentage which the portion of the contested amount not awarded to each Party bears to the amount actually contested by such Party, as determined by the Independent Accountants. If the Buyer does not provide an Objection Notice within the time period and in the manner set forth in this Section 2.5, the Estimated Purchase Price Purchase Price set forth in the Estimated Purchase Price Statement shall be final and binding forming their opinion on the Parties for all purposes hereunder. If the Purchase Price paid by the Buyer pursuant to Section 2.3(a)(i), exceeds the Purchase Price that would have been paid had the amounts Closing Statement of the components determined by the Independent Accountants been used to determine the Purchase Price, the Sellers shall (by wire transfer of immediately available funds in U.S. Dollars to such account or accounts specified by the Buyer to the Sellers concurrently with the delivery of the Objection Notice) pay the Buyer, an amount equal to such excessAssets and Liabilities.

Purchase Price Adjustment. If Promptly after the Final Determination Date (as defined below), if a payment is to be made to the Buyer in accordance with Section 3.1(e) of the Purchase Agreement, then the Buyer and the Sellers are unable Sellers’ Representative shall jointly instruct the Escrow Agent in writing to mutually agree on the Estimated Purchase Price pursuant to Section 2.1(c), then within ten (10) days following the Closing Date the Buyer shall provide the Sellers Representative written notice of the components of the Purchase Price to which the Buyer objects and its proposed calculation of such components (the “Objection Notice”); provided, however, that (a) the Buyer shall only be entitled to object to any component of the Purchase Price pay to the extent it objected to such component pursuant to Section 2.1(c). For purposes of clarityBuyer, from the Escrow Fund, the Parties acknowledge and agree that the Buyer shall not be permitted amount payable to object to (i) the Purchase Price unless the Buyer objected to the Purchase Price prior to the Closing pursuant to Section 2.1(c) and (ii) any component of the Purchase Price (A) that the Buyer did not object to prior to the Closing pursuant to Section 2.1(c) or (B) to which the Buyer and the Sellers reached an agreement pursuant to Section 2.1(c). The Buyer and the Sellers shall be deemed to have agreed upon all items and amounts that are not disputed by the Buyer in the Objection Notice. The Parties shall use reasonable efforts to resolve in good faith during the thirty (30) days following delivery of the Objection Notice any dispute properly asserted in the Objection Notice. If the Parties are unable to resolve any disputed items within thirty (30) days following delivery of the Objection Notice, the disagreement may be submitted for resolution to a firm of independent accountants of national standing to which the Buyer and the Sellers agree (the “Independent Accountants”), which firm shall make a final and binding determination as to only those components of the Purchase Price in dispute with respect to this Section 2.5 on a timely basis and promptly shall notify the Parties in writing of its resolution. The Independent Accountants shall not have the power to modify or amend any term or provision of this Agreement or modify previously agreed to items among the Parties. The costs and expenses of the Independent Accountants shall be allocated between the Parties based upon the percentage which the portion of the contested amount not awarded to each Party bears to the amount actually contested by such Party, as determined by the Independent Accountants. If the Buyer does not provide an Objection Notice within the time period and in the manner set forth in this Section 2.5, the Estimated Purchase Price Purchase Price set forth in the Estimated Purchase Price Statement shall be final and binding on the Parties for all purposes hereunder. If the Purchase Price paid by the Buyer pursuant to Section 2.3(a)(i), exceeds 3.1(e) of the Purchase Price that would have been Agreement, and the Escrow Agent shall promptly (and in any event within five business days following the Escrow Agent’s receipt of such joint written instruction) pay such amount to the Buyer or the Buyer’s designee. If the amount paid had to the amounts Buyer or the Buyer’s designee pursuant to the preceding sentence (which shall equal zero if no amount is paid to the Buyer or the Buyer’s designee) is less than the amount of the components determined Working Capital Deficiency Adjustment Fund, then the Buyer and the Sellers’ Representative shall jointly instruct the Escrow Agent in writing to pay to or as instructed by the Independent Accountants been used to determine Sellers’ Representative, from the Purchase Price, the Sellers shall (by wire transfer of immediately available funds in U.S. Dollars to such account or accounts specified by the Buyer to the Sellers concurrently with the delivery of the Objection Notice) pay the BuyerEscrow Fund, an amount equal to the difference thereof, and the Escrow Agent shall promptly (and in any event within five business days following the Escrow Agent’s receipt of such excessjoint written instruction) pay such amount to or as instructed by the Sellers’ Representative. For purposes of this Section 3(a), the term “Final Determination Date” means the earliest to occur of: (A) the thirty-first (31st) day following the receipt of the Proposed Closing Statement by the Sellers’ Representative if a Notice of Disagreement has not been delivered to the Buyer by the Sellers’ Representative, (B) the date that a written resolution is executed pursuant to Section 3.1(d)(v) or Section 3.1(d)(vi) of the Purchase Agreement, if all outstanding matters are resolved through such resolution, and (C) the date that the Accounting Firm delivers its final, binding resolution pursuant to Section 3.1(d)(vi) of the Purchase Agreement. The Escrow Agent shall have no duty to establish the Final Determination Date or to determine whether any Notice of Disagreement has been delivered, but shall rely conclusively and without further inquiry on joint written instructions furnished by the Buyer and the Sellers’ Representative with respect to distributions pursuant to this Section 3(a).

Purchase Price Adjustment. If In the Buyer event there shall be an inaccuracy in any of the representations or warranties of Seller or a breach by Seller of one or more covenants to be performed by Seller prior to Closing or an inaccuracy in any of the representations or warranties of any Subsidiary of Seller or a breach by a Subsidiary of Seller of one or more covenants to be performed by such Subsidiary herein or in any documents executed by such Subsidiary in connection with the transactions contemplated hereby, which inaccuracy or breach is Material and such inaccuracy or breach does not constitute a failure of the Sellers are unable conditions to mutually agree on the Estimated Purchase Price pursuant Buyer's or its Subsidiaries' obligations to close as set forth in Section 2.1(c12.02(a), then within ten (10) days following the Closing Date the Buyer or there shall provide the Sellers Representative written notice be a Material loss or damage to any of the components Assets as a result of the Purchase Price fire or other casualty and Seller does not elect to which the Buyer objects and its proposed calculation of restore such components (the “Objection Notice”); provided, however, that (a) the Buyer shall only be entitled to object to any component of the Purchase Price to the extent it objected to such component pursuant to Assets as provided in Section 2.1(c). For purposes of clarity8.09, the Parties acknowledge and shall use all reasonable efforts to agree that the Buyer shall not be permitted prior to object Closing to (i) the Purchase Price unless the Buyer objected a downward adjustment to the Purchase Price prior in an amount equal to the Closing pursuant to Section 2.1(c) and (ii) decline in value of any component of the Purchase Price (A) that Assets resulting from such inaccuracy, breach, loss or damage. In this regard, the Buyer did not object to prior to the Closing pursuant to Section 2.1(c) or (B) to which the Buyer and the Sellers reached an agreement pursuant to Section 2.1(c). The Buyer and the Sellers decline in value shall be deemed on a dollar-for-dollar basis for balance sheet items and, with respect to have other items affecting value, shall be as mutually agreed upon all items and amounts that are not disputed by the Buyer in the Objection Notice. The Parties shall use reasonable efforts to resolve in good faith during the thirty (30) days following delivery of the Objection Notice any dispute properly asserted in the Objection NoticeParties. If the Parties are unable to resolve any disputed items within thirty (30) days following delivery of agree on the Objection Notice, the disagreement may be submitted for resolution to a firm of independent accountants of national standing to which the Buyer and the Sellers agree (the “Independent Accountants”), which firm shall make a final and binding determination as to only those components amount of the Purchase Price in dispute with respect adjustment prior to this Section 2.5 on a timely basis Closing, and promptly shall notify all of the conditions to the obligations of the Parties in writing of its resolution. The Independent Accountants shall not to close have the power to modify been satisfied or amend any term or provision of this Agreement or modify previously agreed to items among the Parties. The costs and expenses of the Independent Accountants shall be allocated between waived, the Parties based upon shall proceed to close the percentage which transaction contemplated hereby and the portion of the contested amount not awarded to each Party bears to disagreement regarding the amount actually contested by such Party, as determined by the Independent Accountants. If the Buyer does not provide an Objection Notice within the time period and in the manner set forth in this Section 2.5, the Estimated Purchase Price Purchase Price set forth in the Estimated Purchase Price Statement shall be final and binding on the Parties for all purposes hereunder. If of the Purchase Price paid by adjustment shall be resolved in accordance with the Buyer pursuant to dispute resolution procedure described in Section 2.3(a)(i3.05(b), exceeds with the 30-day period referred to in the first sentence thereof beginning on the Closing Date. Once such disagreement is resolved, Seller, or its Subsidiary, as the case may be, shall then pay to Buyer, or its Subsidiary, as the case may be, the amount of such adjustment, if any, with interest at the rate provided in Section 3.05(d)(i) from the Closing Date through the date of payment. Notwithstanding anything herein to the contrary, no downward adjustment in the Purchase Price that would have been paid had the amounts of the components determined by the Independent Accountants been used to determine the Purchase Price, the Sellers shall (by wire transfer of immediately available funds in U.S. Dollars to such account or accounts specified by the Buyer be made under this Section 3.08 to the Sellers concurrently with extent that the delivery of amount thereof is subject to adjustment under the Objection Notice) pay the Buyer, an amount equal to such excessInventory evaluation procedures elsewhere in this Article 3.

Purchase Price Adjustment. If the Buyer and the Sellers are unable to mutually agree on the Estimated Purchase Price pursuant to Section 2.1(c), then within ten (10i) days Within five (5) Business Days following the Closing Date the Date, Seller shall prepare and deliver to Buyer shall provide the Sellers Representative written notice of the components of the Purchase Price to which the Buyer objects and its proposed calculation of such components a statement (the “Objection NoticeInventory Statement”) setting forth Seller’s determination of the value of the Inventory transferred to Buyer as of the Closing (as of 11:59 P.M., local time, on the Closing Date) (the “Closing Inventory”); provided, howeverSeller’s determination of Prepaid Inventory transferred to Buyer as of the Closing (as of 11:59 P.M., that local time, on the Closing Date) and a calculation of the amount, if any, payable pursuant to clause (ag) of this Section 1.3. In connection with the preparation of the Inventory Statement, Buyer shall only be entitled (A) assist, and shall cause its Affiliates to object to any component assist, Seller, its accountants, advisors and other representatives in its preparation of the Purchase Price Inventory Statement and (B) afford to Seller, its accountants, advisors and other representatives, reasonable access during normal business hours to the personnel, properties, books and records of the Business to the extent it objected relevant to such component pursuant to Section 2.1(cthe preparation of the Inventory Statement (including any taking and preparing with Buyer’s participation of physical counts of Inventory). For purposes of claritythis Section 1.3, the Parties acknowledge and agree that value of the Inventory transferred to Buyer shall not will be permitted to object to (i) the Purchase Price unless the Buyer objected determined by reference to the Purchase Price prior price for each Product and other type or item of Inventory as set forth on Schedule 1.3 to the Closing pursuant to Section 2.1(c) and (ii) any component of the Purchase Price this Agreement shall include only Inventory that (A) that the Buyer did not object to prior to the Closing pursuant to Section 2.1(c) has been approved and released by Seller or such applicable Selling Affiliate appointed qualified person in compliance with applicable Laws, (B) to which the has an unexpired shelf life of not less than twelve (12) months, or such lesser period as may be agreed by Buyer and the Sellers reached an agreement pursuant to Section 2.1(c). The Buyer and the Sellers shall be deemed to have agreed upon all items and amounts that are not disputed by the Buyer in the Objection Notice. The Parties shall use reasonable efforts to resolve in good faith during the thirty (30) days following delivery of the Objection Notice any dispute properly asserted in the Objection Notice. If the Parties are unable to resolve any disputed items within thirty (30) days following delivery of the Objection Notice, the disagreement may be submitted for resolution to a firm of independent accountants of national standing to which the Buyer and the Sellers agree (the “Independent Accountants”), which firm shall make a final and binding determination as to only those components of the Purchase Price in dispute with respect to this Section 2.5 Seller on a timely basis Product-by-Product basis, (C) has not been damaged, recalled and/or incorrectly packaged or labeled and promptly shall notify the Parties in writing (D) consists of its resolution. The Independent Accountants shall not have the power to modify or amend any term or provision of this Agreement or modify previously agreed to items among the Parties. The costs active pharmaceutical ingredients, spare parts, raw materials, containers, packaging and expenses of the Independent Accountants shall be allocated between the Parties based upon the percentage which the portion of the contested amount not awarded to each Party bears to the amount actually contested by such Party, as determined by the Independent Accountants. If the Buyer does not provide an Objection Notice within the time period packaging supplies and in the manner set forth in this Section 2.5, the Estimated Purchase Price Purchase Price set forth in the Estimated Purchase Price Statement shall be final and binding on the Parties for all purposes hereunder. If the Purchase Price paid by the Buyer pursuant to Section 2.3(a)(i), exceeds the Purchase Price that would have been paid had the amounts of the components determined by the Independent Accountants been used to determine the Purchase Price, the Sellers shall (by wire transfer of immediately available funds in U.S. Dollars to such account or accounts specified by the Buyer to the Sellers concurrently with the delivery of the Objection Notice) pay the Buyer, an amount equal to such excesswork-in-process.

Purchase Price Adjustment. If Sellers and Buyers shall jointly, within sixty (60) calendar days after the Buyer Closing Date, prepare (i) a consolidated balance sheet of Sellers as of the Closing Date, (ii) a consolidating balance sheet of Sellers as of the Closing Date, and the Sellers are unable to mutually agree on the Estimated Purchase Price pursuant to Section 2.1(c), then within ten (10iii) days following a balance sheet of each Seller as of the Closing Date the Buyer shall provide the Sellers Representative written notice of the components of the Purchase Price to which the Buyer objects and its proposed calculation of such components (the “Objection Notice”); provided, however, that (a) the Buyer shall only be entitled to object to any component of the Purchase Price to the extent it objected to such component pursuant to Section 2.1(c"Closing Balance Sheets"). For Purchase Price adjustment considerations, the Closing Balance Sheets shall be prepared on a consistent basis with the accounting practices and procedures applied by Sellers in the preparation of the Interim Balance Sheet and, for purposes of claritythis Section 3.01(b), in the absence of manifest error (which shall not include --------------- any matters relating to practices and procedures applied by Sellers in preparing the Interim Balance Sheet), the Parties acknowledge only adjustments to accounting reserves and agree that accruals reflected therein shall be those made to reflect changes in such reserves and accruals between the Buyer shall date of the Interim Balance Sheet and the date of the Closing Balance Sheet. In the event of a dispute between the parties regarding the preparation of the Closing Balance Sheets, which dispute cannot be permitted to object to (i) reconciled by the Purchase Price unless the Buyer objected to the Purchase Price prior to the Closing pursuant to Section 2.1(c) and (ii) any component mutual agreement of the Purchase Price parties within fifteen (A15) that business days after one of the Buyer did not object to prior to parties has notified the Closing pursuant to Section 2.1(c) or other party thereof, the parties shall together select a mutually acceptable Big Six public accounting firm (B) to which the Buyer and the Sellers reached an agreement pursuant to Section 2.1(c). The Buyer and the Sellers shall be deemed to have agreed upon all items unrelated to, and amounts that are not disputed in any manner affiliated with, either Buyers or Sellers or Parent or their respective shareholders, officers, or Affiliates, and not currently or within the two-year period employed or engaged by the Buyer in the Objection Notice. The Parties shall use reasonable efforts to resolve in good faith during the thirty (30) days following delivery of the Objection Notice any dispute properly asserted in the Objection Notice. If the Parties are unable to resolve any disputed items within thirty (30) days following delivery of the Objection Noticeeither Buyers or Sellers or Parent or their respective shareholders, the disagreement may be submitted for resolution to a firm of independent accountants of national standing to which the Buyer and the Sellers agree (the “Independent Accountants”officers, or Affiliates), which firm shall make a final and binding an independent determination as to only those components of the Purchase Price in dispute disputed item or items consistent with respect to this Section 2.5 on a timely basis and promptly shall notify the Parties in writing of its resolution. The Independent Accountants shall not have the power to modify or amend any term or provision of this Agreement or modify previously agreed to items among the Parties. The costs and expenses of the Independent Accountants shall be allocated between the Parties based upon the percentage which the portion of the contested amount not awarded to each Party bears to the amount actually contested by such Party, as determined by the Independent Accountants. If the Buyer does not provide an Objection Notice within the time period and in the manner criteria set forth in this Section 2.5, the Estimated Purchase Price Purchase Price set forth 3.01(b). Such independent determination shall --------------- (in the Estimated Purchase Price Statement shall absence of fraud, bad faith, undue influence, or the like, or manifest error) be final and binding on all of the Parties for all purposes hereunderparties hereto. If All fees, costs and expenses incurred in retaining such independent accounting firm shall be paid in equal shares by Buyers and Sellers. Within ten (10) calendar days after (i) the completion of mutually agreed upon Closing Balance Sheets or (ii) the resolution of any dispute relating thereto submitted to an independent Big Six public accounting firm, whichever the case may be, the following Purchase Price Adjustment shall be paid by the Buyer pursuant to Section 2.3(a)(i), exceeds the Purchase Price that would have been paid had the amounts of the components determined by the Independent Accountants been used to determine the Purchase Price, the Sellers shall (by wire transfer of immediately available funds in U.S. Dollars to such account or accounts specified by the Buyer to the Sellers concurrently with the delivery of the Objection Notice) pay the Buyer, an amount equal to such excess.parties:

Purchase Price Adjustment. If If, during the Buyer and the Sellers are unable to mutually agree on the Estimated Purchase Price pursuant to Section 2.1(c), then within ten (10) days following sixty-day period after the Closing Date Date, the Buyer shall provide the Sellers Representative written notice Company issues or sells any shares of the components of capital stock to an investor for a price per share that is less than the Purchase Price (such lower price, the "Adjustment Price"), then, as a purchase price adjustment, the Purchaser shall be entitled to which the Buyer objects and its proposed calculation of such components receive an amount (the “Objection Notice”)"Adjustment Amount") equal to (x) the Consideration LESS (y) the product of the Adjustment Price multiplied by the number of Purchased Shares, payable at the Company's option either in cash or in additional shares of Common Stock having a fair market value equal to the Adjustment Amount; provided, however, that (a) the Buyer shall only be entitled to object to any component of the Purchase Price to the extent it objected to such component pursuant to Section 2.1(c). For purposes of clarity, the Parties acknowledge and agree that the Buyer shall not be permitted to object to (i) the Purchase Price unless the Buyer objected adjustment to the Purchase Price prior to made under this Section 1.4 shall be capped so that the Purchaser will not have acquired more than 19.9% of the Common Stock outstanding on the Closing pursuant Date as a result of such adjustment. Notwithstanding the foregoing, this Section 1.4 shall not apply to Section 2.1(c) and (ii) any component issuance of the Purchase Price any capital stock in connection with (A) that the Buyer did not object issuance or sale of shares or options to prior purchase shares of the Common Stock to employees, officers, directors and consultants of the Closing Company and its subsidiaries pursuant to Section 2.1(c) plans or arrangements approved by the Company's Board of Directors; (B) to which the Buyer and issuance of Common Stock upon conversion of any shares of any series of the Sellers reached an agreement pursuant to Section 2.1(c)Company's Preferred Stock, the Company's Series A Convertible Debentures due 2006 or any of the Company's outstanding warrants. The Buyer and the Sellers Adjustment Amount shall be deemed delivered to have agreed upon all items and amounts that are not disputed by the Buyer in the Objection Notice. The Parties shall use reasonable efforts to resolve in good faith during the thirty (30) Purchaser within ten days following delivery of the Objection Notice any dispute properly asserted in the Objection Notice. If the Parties are unable to resolve any disputed items within thirty (30) days following delivery issuance or sale of the Objection Notice, the disagreement may be submitted for resolution to a firm such additional shares of independent accountants of national standing to which the Buyer and the Sellers agree (the “Independent Accountants”), which firm shall make a final and binding determination as to only those components of the Purchase Price in dispute with respect to this Section 2.5 on a timely basis and promptly shall notify the Parties in writing of its resolution. The Independent Accountants shall not have the power to modify or amend any term or provision of this Agreement or modify previously agreed to items among the Parties. The costs and expenses of the Independent Accountants shall be allocated between the Parties based upon the percentage which the portion of the contested amount not awarded to each Party bears to the amount actually contested by such Party, as determined by the Independent Accountants. If the Buyer does not provide an Objection Notice within the time period and in the manner set forth in this Section 2.5, the Estimated Purchase Price Purchase Price set forth in the Estimated Purchase Price Statement shall be final and binding on the Parties for all purposes hereunder. If the Purchase Price paid by the Buyer pursuant to Section 2.3(a)(i), exceeds the Purchase Price that would have been paid had the amounts of the components determined by the Independent Accountants been used to determine the Purchase Price, the Sellers shall (by wire transfer of immediately available funds in U.S. Dollars to such account or accounts specified by the Buyer to the Sellers concurrently with the delivery of the Objection Notice) pay the Buyer, an amount equal to such excesscapital stock.