Common use of Adjustment Amount Clause in Contracts

Adjustment Amount. For the purposes of this Agreement, “Adjustment Amount” means, without duplication, (i) the aggregate amount of Cash of the Company and the Company Subsidiaries as of the Effective Time, plus (ii) the amount (which may be a positive or negative number) by which the Net Working Capital exceeds $17,296,000 (the “Target Net Working Capital”), minus (iii) the aggregate amount of Indebtedness of the Company or the Company Subsidiaries (“Company Indebtedness”) as of the Closing, minus (iv) any Transaction Expenses of the Company or any Company Subsidiaries that are unpaid as of the Closing, minus (v) the amount of all Transaction Bonuses. For the purposes of this Agreement, “Net Working Capital” means, without duplication, the (A) current assets of the Company and the Company Subsidiaries (excluding (I) Cash, (II) intercompany accounts receivable, (III) escrow claim receivables (including any escrowed amounts held pursuant to that certain Escrow Agreement, dated May 22, 2015, by and between the Company, Xxxxxxxx Xxxxxxxx and Manufacturers and Traders Trust Company, as amended), (IV) the portion of any prepaid expense of which Purchaser will not receive the benefit following the Closing, and (V) deferred Tax assets), minus (B) the current liabilities of the Company and the Company Subsidiaries (including deferred rent, but excluding (I) intercompany liabilities, (II) deferred Tax liabilities, (III) the current portion of Company Indebtedness and any accrued interest or fees thereon, (IV) the current portion of deferred revenue, (V) any reserve set aside in connection with Horn v. Rise Medical, et al., Case No.: 2:17-cv-01967-MCE-KJN, filed in the United States District Court Eastern District of California), (VI) Transaction Expenses, and (VII) Transaction Bonuses), in each case as of the Effective Time. Attached hereto as Exhibit A is an example calculation of the Adjustment Amount and Net Working Capital; the Adjustment Amount and Net Working Capital shall be calculated in a manner consistent with Exhibit A and in all events in accordance with GAAP applied using the same accounting methods, practices, principles, policies and procedures, with consistent classifications, judgments, and valuation and estimation methodologies that were used by the Company in the preparation of the Annual Financial Statements.

Adjustment Amount. For (a) Not less than five (5) Business Days prior to the purposes of this AgreementClosing Date and in no event more than ten (10) Business Days prior to the Closing Date, Seller shall deliver to Buyer a written statement (the “Adjustment Amount” means, without duplication, Preliminary Closing Statement”) setting forth (i) its good faith estimate of (A) the aggregate amount of Cash of the Company and the Company Subsidiaries Net Working Capital as of the Effective Time, plus (ii) the amount (which may be a positive or negative number) by which the Net Working Capital exceeds $17,296,000 Time (the “Target Estimated Closing Date Net Working Capital”), minus (iiiB) the aggregate amount of Indebtedness of the Company or the Company Subsidiaries (“Company Indebtedness”) as of the Closing, minus (iv) any Transaction Expenses of the Company or any Company Subsidiaries that are unpaid as of the Closing, minus (v) the amount of all Transaction Bonuses. For the purposes of this Agreement, “Net Working Capital” means, without duplication, the (A) current assets of the Company and the Company Subsidiaries (excluding (I) Cash, (II) intercompany accounts receivable, (III) escrow claim receivables (including any escrowed amounts held pursuant to that certain Escrow Agreement, dated May 22, 2015, by and between the Company, Xxxxxxxx Xxxxxxxx and Manufacturers and Traders Trust Company, as amended), (IV) the portion of any prepaid expense of which Purchaser will not receive the benefit following the Closing, and (V) deferred Tax assets), minus (B) the current liabilities of the Company and the Company Subsidiaries (including deferred rent, but excluding (I) intercompany liabilities, (II) deferred Tax liabilities, (III) the current portion of Company Indebtedness and any accrued interest or fees thereon, (IV) the current portion of deferred revenue, (V) any reserve set aside in connection with Horn v. Rise Medical, et al., Case No.: 2:17-cv-01967-MCE-KJN, filed in the United States District Court Eastern District of California), (VI) Transaction Expenses, and (VII) Transaction Bonuses), in each case Funded Debt as of the Effective Time. Attached hereto Time (the “Estimated Closing Date Funded Debt”), (C) the aggregate amount of all Cash as Exhibit A is an example of the Effective Time (the “Estimated Closing Date Cash”) and (D) the Unpaid Company Transaction Expenses (the “Estimated Unpaid Company Transaction Expenses”) and (ii) its calculation of the Adjustment Amount and Net Working Capital; the Adjustment Amount and Estimated Net Working Capital Adjustment Amount. The calculations included in the Preliminary Closing Statement shall be calculated in prepared on a manner basis consistent with Exhibit A and in all events in accordance with GAAP applied using the same accounting methodsAccounting Principles (it being acknowledged that certain amounts thereon shall be estimates). The Preliminary Closing Statement shall be accompanied by reasonable supporting detail (including reasonable supporting calculations). Following the delivery of the Preliminary Closing Statement, practices, principles, policies and procedures, with consistent classifications, judgmentsSeller shall, and valuation shall cause its Subsidiaries (including the Precoat Subsidiaries) to, provide Buyer and estimation methodologies that were used by its Representatives reasonable access (during normal business hours and at mutually agreeable dates) to the Company in personnel and (subject to the execution of customary work paper access letters if requested by) auditors or accountants of Seller and its Subsidiaries (including the Precoat Subsidiaries) relating to the preparation of the Annual Financial StatementsPreliminary Closing Statement and shall cause the personnel of Seller and its Subsidiaries (including the Precoat Subsidiaries) to reasonably cooperate with Buyer and its Representatives in connection with their review of the Preliminary Closing Statement and consider in good faith any changes Buyer recommends; provided, however, if the parties are unable to agree upon any matter set forth therein, the amount reflected in the Preliminary Closing Statement shall be used for calculation of the Consideration payable at Closing.

Adjustment Amount. For (a) Promptly after the purposes Closing Date, the Surviving Corporation shall preliminarily determine the Working Capital Adjustment (as defined below), if any, in accordance with GAAP, applying Exhibit 2.2.2 hereof. The Surviving Corporation shall set forth such preliminary determination on a written statement (the "WORKING CAPITAL STATEMENT") and promptly after making such preliminary determination shall retain Ernst & Young LLP to perform certain agreed upon procedures as determined by Surviving Corporation on the Working Capital Statement. After completion of this Agreementsuch engagement by Ernst & Young LLP, “the Surviving Corporation shall deliver the Working Capital Statement to Newco within seventy-five (75) days after the Closing Date. If within thirty (30) days following delivery of a copy of the Working Capital Statement, Newco does not give Parent written notice objecting to the calculations set forth on the Working Capital Statement (such notice must contain a statement in reasonable detail of the basis of Newco's objection), the Working Capital Adjustment Amount” meansreflected on the Working Capital Statement shall be conclusive and binding on the parties. If Newco timely gives such notice of objection, without duplicationthen the issues in dispute shall be promptly submitted to a nationally recognized firm of certified public accountants selected by the mutual agreement of the Surviving Corporation and Newco (other than Ernst & Young LLP or Artxxx Xxdxxxxx XXP, such other firm being referred to as the "ACCOUNTANTS") for resolution. If Surviving Corporation and Newco cannot promptly agree on the selection of the Accountants, then the Accountants will be selected by the agreement of Ernst & Young LLP and Artxxx Xxdxxxxx XXP. If issues in dispute are submitted to the Accountants for resolution, (i) each party shall promptly furnish to the aggregate amount of Cash of Accountants such workpapers and other documents and information relating to the Company disputed issues as the Accountants may request and are available to that party (or its independent public accountants), and shall be afforded the Company Subsidiaries as of opportunity to present to the Effective Time, plus Accountants any material relating to the determination and to discuss the determination with the Accountants; (ii) the amount (which may be a positive or negative number) by which determination of the Net Working Capital exceeds $17,296,000 Adjustment by the Accountants, as set forth in a written notice ("FINAL WORKING CAPITAL NOTICE") delivered to both parties by the “Target Net Working Capital”)Accountants, minus shall be binding and conclusive on the parties; and (iii) the aggregate amount of Indebtedness Surviving Corporation and Newco shall each bear 50% of the Company or the Company Subsidiaries (“Company Indebtedness”) as fees of the Closing, minus (iv) any Transaction Expenses of the Company or any Company Subsidiaries that are unpaid as of the Closing, minus (v) the amount of all Transaction Bonuses. For the purposes of this Agreement, “Net Working Capital” means, without duplication, the (A) current assets of the Company and the Company Subsidiaries (excluding (I) Cash, (II) intercompany accounts receivable, (III) escrow claim receivables (including any escrowed amounts held pursuant to that certain Escrow Agreement, dated May 22, 2015, by and between the Company, Xxxxxxxx Xxxxxxxx and Manufacturers and Traders Trust Company, as amended), (IV) the portion of any prepaid expense of which Purchaser will not receive the benefit following the Closing, and (V) deferred Tax assets), minus (B) the current liabilities of the Company and the Company Subsidiaries (including deferred rent, but excluding (I) intercompany liabilities, (II) deferred Tax liabilities, (III) the current portion of Company Indebtedness and any accrued interest or fees thereon, (IV) the current portion of deferred revenue, (V) any reserve set aside in connection with Horn v. Rise Medical, et alAccountants for such determination., Case No.: 2:17-cv-01967-MCE-KJN, filed in the United States District Court Eastern District of California), (VI) Transaction Expenses, and (VII) Transaction Bonuses), in each case as of the Effective Time. Attached hereto as Exhibit A is an example calculation of the Adjustment Amount and Net Working Capital; the Adjustment Amount and Net Working Capital shall be calculated in a manner consistent with Exhibit A and in all events in accordance with GAAP applied using the same accounting methods, practices, principles, policies and procedures, with consistent classifications, judgments, and valuation and estimation methodologies that were used by the Company in the preparation of the Annual Financial Statements.

Adjustment Amount. For The Partnership shall pay to Panthers BRGP Corporation the purposes of this Agreement, “"Adjustment Amount” means, without duplication, ," which shall equal: (i) the aggregate amount of Cash of the Company and the Company Subsidiaries as of the Effective TimeTrade Accounts Receivable Loss Experience, plus (ii) the any negative amount (which may be a positive or negative number) obtained by which subtracting from the Net Working Capital exceeds $17,296,000 (set forth on the “Target Closing Net Working Capital”), minus Capital Statement: (iii1) the aggregate amount transaction costs referred to in Section 5.20; and (2) the Premier Club Accounts Receivable Loss Experience. As security for the agreement by the Partnership to pay the Adjustment Amount, the Partnership does hereby grant a security interest in, and Pledge to Panthers BRGP Corporation the Held Back Interests (as defined in Section 1.8(i)) and any Panthers Common Stock exchangeable therefore and proceeds of Indebtedness all of the Company or foregoing. Panthers BRGP Corporation may set off against the Company Subsidiaries Held Back Interests and against any proceeds thereof the Adjustment Amount for which the Partnership may be responsible pursuant to this Agreement, subject, however, to the following terms and conditions: (“Company Indebtedness”a) as Panthers BRGP Corporation shall give written notice to the Partnership of any claim for setoff against the ClosingHeld Back Interests, minus which notice shall set forth: (iv) any Transaction Expenses of the Company or any Company Subsidiaries that are unpaid as of the Closing, minus (vi) the amount of all Transaction Bonuses. the Adjustment Amount; and (ii) the basis of such claim; (b) Such set off shall be effected on the later to occur of the expiration of 30 days from the date of such notice (the "Notice of Contest Period") or, if such claim is contested, the date the dispute is resolved, and such set off shall be charged proportionally against the shares set aside; (c) If, prior to the expiration of the Notice of Contest Period, the Partnership shall notify Panthers BRGP Corporation in writing of an intention to dispute the claim, the parties shall in good faith negotiate to resolve the claim or submit the matter to binding arbitration; (d) For the purposes of this AgreementArticle, “Net Working Capital” means, without duplication, Panthers Shares for which each Held Back Interest can be exercised shall be valued at the (A) current assets greater of the Company and Price per Share or the Company Subsidiaries (excluding (I) Cash, (II) intercompany accounts receivable, (III) escrow claim receivables (including any escrowed amounts held price per share of Panthers Common Stock at the close of trading on the date the written notice is sent pursuant to that certain Escrow Agreement, dated May 22, 2015, by and between clause (a) above. (e) Neither the Company, Xxxxxxxx Xxxxxxxx and Manufacturers and Traders Trust Company, as amended), (IV) Partnership nor the portion of General Partner shall be liable to Panthers or Panthers BRHC Limited or Panthers BRGP Corporation for any prepaid expense of which Purchaser will not receive deficiency resulting from the benefit following the Closing, and (V) deferred Tax assets), minus (B) the current liabilities value of the Company and Held Back Interests being less than the Company Subsidiaries (including deferred rentAdjustment Amount, but excluding (I) intercompany liabilities, (II) deferred Tax liabilities, (III) it being agreed that the current portion of Company Indebtedness and only recourse against Partnership by any accrued interest or fees thereon, (IV) the current portion of deferred revenue, (V) any reserve set aside in connection with Horn v. Rise Medical, et al., Case No.: 2:17-cv-01967-MCE-KJN, filed in the United States District Court Eastern District of California), (VI) Transaction Expenses, and (VII) Transaction Bonuses), in each case as of the Effective Time. Attached hereto as Exhibit A is an example calculation of party for the Adjustment Amount and Net Working Capital; the Adjustment Amount and Net Working Capital shall be calculated in a manner consistent with Exhibit A and in all events in accordance with GAAP applied using to the same accounting methods, practices, principles, policies and procedures, with consistent classifications, judgments, and valuation and estimation methodologies that were used by the Company in the preparation of the Annual Financial Statements.Held Back Interests. 9.4

Adjustment Amount. For the purposes of this Agreement, “Adjustment Amount” means, without duplication, If (i) the aggregate amount Adjustment Amount is positive, then (A) Parent shall pay, or cause to be paid, to the Paying Agent the Adjustment Amount within three Business Days from the date on which the Adjustment Amount is finally determined pursuant to Section 2.2(f) by bank wire transfer of Cash of immediately available funds to the Company account or accounts designated in writing by the Paying Agent for payment to the Former Holders in accordance with this Agreement and the Company Subsidiaries as of Paying Agent Agreement and (B) the Effective Timefull Adjustment Escrow Amount shall be released and paid to the Paying Agent for payment to the Former Holders in accordance with this Agreement and the Paying Agent Agreement, plus or (ii) the amount (which may be a positive or Adjustment Amount is negative number) by which the Net Working Capital exceeds $17,296,000 (the “Target Net Working Capital”)then, minus (iii) the aggregate amount of Indebtedness of the Company or the Company Subsidiaries (“Company Indebtedness”) as of the Closing, minus (iv) any Transaction Expenses of the Company or any Company Subsidiaries that are unpaid as of the Closing, minus (v) the amount of all Transaction Bonuses. For the purposes of this Agreement, “Net Working Capital” means, without duplication, the (A) current assets Parent will be entitled to receive that portion of the Company and Adjustment Escrow Amount equal to the Company Subsidiaries (excluding (I) Cash, (II) intercompany accounts receivable, (III) escrow claim receivables (including any escrowed amounts held pursuant to that certain Escrow Agreement, dated May 22, 2015, by and between the Company, Xxxxxxxx Xxxxxxxx and Manufacturers and Traders Trust Company, as amended), (IV) the portion of any prepaid expense of which Purchaser will not receive the benefit following the Closing, and (V) deferred Tax assets), minus (B) the current liabilities of the Company and the Company Subsidiaries (including deferred rent, but excluding (I) intercompany liabilities, (II) deferred Tax liabilities, (III) the current portion of Company Indebtedness and any accrued interest or fees thereon, (IV) the current portion of deferred revenue, (V) any reserve set aside in connection with Horn v. Rise Medical, et al., Case No.: 2:17-cv-01967-MCE-KJN, filed in the United States District Court Eastern District of California), (VI) Transaction Expenses, and (VII) Transaction Bonuses), in each case as of the Effective Time. Attached hereto as Exhibit A is an example calculation absolute value of the Adjustment Amount and Net Working Capital(B) the remaining Adjustment Escrow Amount, if any, shall be released and paid to the Paying Agent for payment to the Former Holders in accordance with this Agreement and the Paying Agent Agreement; provided, however, that if the Adjustment Amount to be paid pursuant to clause (ii) above exceeds the Adjustment Escrow Amount, then Parent may instruct the Escrow Agent to pay such excess from the Indemnification Escrow Funds. Parent and Net Working Capital shall be calculated in a manner consistent with Exhibit A and in all events the Shareholders’ Representative will deliver joint written instructions instructing the Escrow Agent to release the Adjustment Escrow Amount and, if applicable, the Indemnification Escrow Funds, in accordance with GAAP applied using this Section 2.2(g) not later than the same accounting methodsthird Business Day following the date on which the Adjustment Amount is finally determined in accordance with this Section 2.2. Unless otherwise required under applicable Law, practicesfor all Tax purposes, principles, policies and procedures, with consistent classifications, judgmentsany Adjustment Amount attributable to (x) Signode U.S. or any of its Subsidiaries shall be treated as an adjustment to the U.S. Share Consideration, and valuation and estimation methodologies that were used by (y) the Company in or any of its Subsidiaries (other than Signode U.S. or any of its Subsidiaries) shall be treated as an adjustment to the preparation of the Annual Financial StatementsAggregate Merger Consideration.

Adjustment Amount. For the purposes of this Agreement, “"Adjustment Amount” means" shall mean the amount, without duplicationif any, by which (i) the aggregate amount difference of Cash (x) $266,451.07 minus (y) the product of (A) $22,500 times (B) the Company number of days, inclusive, between January 31, 2001 and the Company Subsidiaries as of the Effective Time, plus Closing Date exceeds (ii) the amount sum of (which may be a positive or negative numberv) by which the Net innoCOMM's Working Capital exceeds $17,296,000 on the Closing Date plus (the “Target Net Working Capital”), minus x) any Excess Transaction Costs appearing as current liabilities in accordance with GAAP plus (iiiy) the aggregate amount of Indebtedness of the Company or the Company Subsidiaries any current liabilities (“Company Indebtedness”determined in accordance with GAAP) as of the Closing, minus Closing Date associated with the offer to pay holders of innoCOMM Options the amounts contemplated by Section 3.4 in return for the cancellation of such innoCOMM Options plus (iv) any Transaction Expenses of the Company or any Company Subsidiaries that are unpaid as of the Closing, minus (vz) the amount of all Transaction Bonuses. For the purposes of this Agreement, “Net Working Capital” means, without duplication, the (A) current assets of the Company and the Company Subsidiaries (excluding (I) Cash, (II) intercompany accounts receivable, (III) escrow claim receivables (including any escrowed amounts held pursuant to that certain Escrow Agreement, dated May 22, 2015, by and between the Company, Xxxxxxxx Xxxxxxxx and Manufacturers and Traders Trust Company, as amended), (IV) the portion of any prepaid expense of which Purchaser will not receive the benefit following the Closing, and (V) deferred Tax assets), minus (B) the current liabilities of the Company and the Company Subsidiaries (including deferred rent, but excluding (Idetermined in accordance with GAAP) intercompany liabilities, (II) deferred Tax liabilities, (III) the current portion of Company Indebtedness and any accrued interest or fees thereon, (IV) the current portion of deferred revenue, (V) any reserve set aside in connection with Horn v. Rise Medical, et al., Case No.: 2:17-cv-01967-MCE-KJN, filed in the United States District Court Eastern District of California), (VI) Transaction Expenses, and (VII) Transaction Bonuses), in each case as of the Effective TimeClosing Date associated with the incentive bonus program to be adopted by innoCOMM pursuant to Section 7.6(b) hereof. Attached hereto as Exhibit A is an example "Working Capital" shall mean the amount by which innoCOMM's current assets determined in accordance with GAAP exceed innoCOMM's current liabilities determined in accordance with GAAP. The above calculation of the Adjustment Amount assumes that innoCOMM's Working Capital on the Closing Date reflects either the payment by innoCOMM or the accrual by innoCOMM of (i) up to $120,000 for the actual, reasonable fees and Net Working Capital; expenses of legal counsel, accountants and any other advisors, representatives or consultants incurred by innoCOMM in connection with the negotiation, preparation, execution and performance of this Agreement and the transactions contemplated hereby, excluding any fees or expenses payable to Sterling, and (ii) up to $1,000,000 for fifty percent (50%) of the fees and expenses payable to Sterling in connection with the services rendered to innoCOMM in connection with the negotiation, preparation, execution and performance of this Agreement and the transactions contemplated hereby. As contemplated by Section 3.2(c), the Adjustment Amount and Net Working Capital may be a negative number. At least five business days prior to the Closing, innoCOMM shall estimate the Adjustment Amount (which estimated amount is referred to herein as the "Estimated Adjustment Amount"). The Adjusted Consideration shall be calculated based on the Estimated Adjustment Amount as determined above. Within 90 days after the Effective Time, National shall prepare and deliver to the Shareholder Representative a determination (the "Determination") of the actual amount of the Adjustment Amount as of the Closing Date (which actual amount is referred to herein as the "Actual Adjustment Amount") including the basis for such Determination. If, within 30 days after the date on which a Determination is delivered to the Shareholder Representative, the Shareholder Representative shall not have given written notice to National setting forth in detail any objections to such Determination, then such Determination shall be final and binding on the parties hereto. In the event the Shareholder Representative gives written notice of any objection to such Determination within such 30-day period, National and the Shareholder Representative shall use all reasonable efforts to resolve the dispute within 30 days following the receipt by National of the written notice from the Shareholder Representative. If the parties are unable to reach an agreement within such 30-day period, the matter shall be submitted to a manner consistent nationally-recognized accounting firm mutually agreeable to the parties (other than KPMG LLP) or chosen by lot among the remaining "big five" (or such lesser number, if applicable) nationally-recognized firms if the parties are unable to so mutually agree for determination of the Actual Adjustment Amount which shall be final and binding upon National and the Shareholder Representative. National and the Employee Shareholders shall each contribute 50% of all fees and costs charged by the accounting firm in connection with Exhibit A the resolution of any such dispute. To effect any such contribution required to be made by the Employee Shareholders pursuant to the foregoing sentence, the parties shall reduce the Actual Adjustment Amount by an amount equal to the required contribution. National will provide the Shareholder Representative and in all events in accordance his advisors with GAAP applied using reasonable access to the same accounting methodsbooks and records of innoCOMM for the purposes of evaluating the Determination and determining the Actual Adjustment Amount. If the Actual Adjustment Amount is greater than the Estimated Adjustment Amount, practices, principles, policies the aggregate payments remaining to be made by National to the Employee Shareholders pursuant to Section 3.3(b) shall be reduced by an amount equal to the difference between the Actual Adjustment Amount and proceduresthe Estimated Adjustment Amount, with consistent classificationssuch reduction allocated on a pro rata basis among the Employee Shareholders based upon the number of shares of innoCOMM Common Stock held by each such Employee Shareholder or subject to innoCOMM Options held by such Employee Shareholder immediately prior to the Effective Time. If the Actual Adjustment Amount is less than the Estimated Adjustment Amount, judgments, National will promptly pay to the Shareholders and valuation and estimation methodologies that were used holders of innoCOMM Options pro rata based upon the number of shares of innoCOMM Common Stock held by each such Shareholder or subject to innoCOMM Options held by such Shareholder immediately prior to the Company Effective Time cash in an amount equal to the preparation amount of the Annual Financial Statementsdifference between the Estimated Adjustment Amount and the Actual Adjustment Amount.