Common use of Adjustment of Merger Consideration Clause in Contracts

Adjustment of Merger Consideration. (a) The Merger Consideration shall be calculated and paid promptly following the Closing without adjusting the Merger Consideration pursuant to the provisions of this Section 1.13. Thereafter, following the preparation of the Closing Balance Sheet, the Merger Consideration shall be subject to adjustment, as follows: (i) to the extent that the Closing Date Net Worth exceeds the Company Baseline Net Worth, the Merger Consideration will be increased dollar for dollar by the amount by which the Closing Date Net Worth exceeds the Company Baseline Net Worth; or (ii) to the extent that the Closing Date Net Worth is less than the Company Baseline Net Worth, the Merger Consideration will be decreased dollar for dollar by the amount by which the Closing Date Net Worth is less than the Company Baseline Net Worth. Any increase in the Merger Consideration shall be paid to the Company Stockholders by Parent in the form of additional Stock Consideration within ten (10) days after delivery of the Closing Balance Sheet and the determination of the Closing Date Net Worth, unless such Closing Balance Sheet and/or the determination of the Closing Date Net Worth is subject to dispute hereunder. Any decrease in the Merger Consideration shall be paid to Parent by the Company Stockholders on a pro rata basis based upon the number of shares of Company Common Stock held of record by each Company Stockholder immediately prior to the Effective Time in cash by wire transfer or certified cashier’s check within ten (10) days after delivery of the Closing Balance Sheet and the determination of the Closing Date Net Worth, unless such Closing Balance Sheet and/or the determination of the Closing Date Net Worth is subject to dispute hereunder. In the event that the Company Stockholders shall fail to make such payment in full within such ten (10) day period, or such longer period as is required to resolve a dispute as to the Closing Balance Sheet and/or the determination of the Closing Date Net Worth as hereinafter provided, the amount of any such deficiency shall constitute Damages with respect to which Parent shall have the right to seek indemnification from Xxxxx under Section 9.2(a) of this Agreement, and to assert a claim for payment of such amount in accordance with the provisions of the Escrow Agreement.

Adjustment of Merger Consideration. (a) The Merger Consideration shall be calculated and paid promptly As soon as practicable but in no event later than thirty (30) days following the Closing without adjusting Date, Parent, at its expense, shall cause the Merger Consideration preparation of a final balance sheet of the Company, as at the close of business on the Closing Date (the “Final Closing Date Balance Sheet”), prepared in accordance with GAAP and in accordance with the same principles and methods followed in preparing the Financial Statements referred to in Section 3.05 hereof, except that the Final Closing Date Balance Sheet shall be prepared on an accrual basis method of accounting. Parent shall share with the Shareholders’ Representative (as defined Section 10.01) such detailed calculations and supporting documents as the Shareholders’ Representative shall reasonably request in connection with its review of any calculations made thereunder. The Shareholders’ Representative may submit to Parent, not later than ten (10) days from the receipt of the Final Closing Date Balance Sheet from Parent, a list of any components of the Final Closing Date Balance Sheet appearing thereon with which the Shareholders’ Representative disagrees, if any (a “Dispute Notice”). If the Shareholders’ Representative does not issue a Dispute Notice prior to such date, the Final Closing Date Balance Sheet, as supplied to the Shareholders’ Representative, shall be deemed to have been accepted and agreed to by the Shareholders’ Representative on behalf of the Shareholders, and shall be final and binding on the parties to this Agreement. In the event of a Dispute Notice by the Shareholders’ Representative, Parent and the Shareholders’ Representative shall thereafter have twenty (20) days to discuss and reach resolution on any items of dispute. Any items of dispute regarding the Final Closing Date Balance Sheet which are not so resolved shall be submitted to Deloitte (the “Arbitrating Accountant”) or another nationally recognized so called “big-four” firm of public accountants mutually acceptable to Parent and the Shareholders’ Representative, who shall serve as an arbitrator hereunder, the expenses of which shall be shared one-half by Parent and one-half by the Shareholders’ Representative, on behalf of the Shareholders. If Parent and the Shareholders’ Representative are unable to agree on an Arbitrating Accountant pursuant to the provisions foregoing, each of this Section 1.13. Thereafter(x) Parent and (y) the Shareholders’ Representative shall, following the preparation within thirty (30) days after delivery of the Closing Balance SheetDispute Notice select a disinterested arbitrator with relevant experience of its choice, and the Merger Consideration two disinterested arbitrators so selected shall be subject to adjustmentselect, as follows: (i) to the extent that the Closing Date Net Worth exceeds the Company Baseline Net Worth, the Merger Consideration will be increased dollar for dollar by the amount by which the Closing Date Net Worth exceeds the Company Baseline Net Worth; or (ii) to the extent that the Closing Date Net Worth is less than the Company Baseline Net Worth, the Merger Consideration will be decreased dollar for dollar by the amount by which the Closing Date Net Worth is less than the Company Baseline Net Worth. Any increase in the Merger Consideration shall be paid to the Company Stockholders by Parent in the form of additional Stock Consideration within ten (10) days after delivery of the Closing Balance Sheet selection of such arbitrators, an Arbitrating Accountant. In connection with the resolution of any dispute, the arbitrator or arbitrators shall have access to all documents, records, work papers, facilities and the determination of the Closing Date Net Worthpersonnel necessary to perform its function as arbitrator. The arbitrator or arbitrators so selected shall render a written decision as promptly as practicable, unless such Closing Balance Sheet and/or the determination of the Closing Date Net Worth is subject to dispute hereunder. Any decrease but in the Merger Consideration shall be paid to Parent by the Company Stockholders on a pro rata basis based upon the number of shares of Company Common Stock held of record by each Company Stockholder immediately prior to the Effective Time in cash by wire transfer or certified cashier’s check within ten no event later than twenty (1020) days after delivery submission of the Closing Balance Sheet matter to the Arbitrating Accountant. The decision of the arbitrator shall be final and binding upon the parties, and judgment may be entered on such decision in a court of competent jurisdiction. To the extent not otherwise provided herein, the commercial arbitration rules of the American Arbitration Association as in effect at the time of any arbitration shall govern such arbitration in all respects. The determination of the Closing Date Net Worth, unless such Closing Balance Sheet and/or the determination of the Closing Date Net Worth is subject to dispute hereunder. In the event that the Company Stockholders shall fail to make such payment in full within such ten (10) day period, or such longer period as is required to resolve a dispute as to the Closing Balance Sheet and/or the determination of the Closing Date Net Worth as hereinafter provided, the amount of any such deficiency shall constitute Damages firm with respect to which Parent any and all disputes shall have the right to seek indemnification from Xxxxx under Section 9.2(a) of this Agreement, be conclusive and to assert a claim for payment of such amount in accordance with the provisions of the Escrow Agreementbinding upon all parties.

Adjustment of Merger Consideration. (a) The Merger Consideration shall be calculated and paid promptly As soon as practicable but in no event later than forty five (45) days following the Closing without adjusting Date, the Merger Consideration Shareholders shall cause the preparation of a balance sheet of the Company, as at the close of business on the date immediately prior to Closing Date (the "Closing Date Balance Sheet"), consistent with the past practice of the Company and in accordance with the same principles and methods followed in preparing the Financial Statements referred to in Section 3.05 hereof, and in accordance with Schedule 2.03 hereof. Schedule 2.03 shall provide that no accrual shall be set forth on the Closing Date Balance Sheet as a result of (i) income tax liability to the Company or the Surviving Corporation as a result of the change by the Company from a cash basis taxpayer to an accrual basis taxpayer calculated in the manner set forth on Schedule 1.05(e)(ii) hereto ; (ii) for any income taxes payable by the Shareholders for the period between the date hereof and the Closing Date ("Taxes Between Signing and Closing") and that there shall be no accrual for fees payable with respect to the transactions contemplated by this Agreement borne by the Company on behalf of the Shareholders pursuant to this Agreement as further described in Schedule 2.03 ("Transaction Fees"). The Company shall also provide to Parent at the provisions time it presents the Closing Date Balance Sheet its calculation of this Section 1.13Taxes Between Signing and Closing and Transaction Fees. Thereafter, following the The cost of preparation of the Closing Date Balance Sheet shall be borne by the Surviving Corporation. The Company and Parent shall share with each other such detailed calculations and supporting documents as the other shall reasonably require in connection with its review of any calculations made thereunder. Parent shall have the right, in its sole discretion, to cause a review or audit of the Closing Date Balance Sheet, at Parent's expense, by its accountants, provided that such review or audit shall be completed within 30 days following the availability of the Closing Date Balance Sheet. Parent may submit to the Shareholders' Representative (as defined hereinafter) on behalf of the Shareholders, not later than 30 days from the receipt of the Closing Date Balance Sheet from the Shareholders' Representative on behalf of the Shareholders, a list of any components of the Closing Date Balance Sheet, the Merger Consideration statement of Taxes Between Signing and Closing (the "Tax Statement") appearing thereon with which Parent disagrees, if any (a "Dispute Notice") within thirty (30) days of its receipt of the Closing Date Balance Sheet. If Parent does not issue a Dispute Notice prior to such date, the Closing Date Balance Sheet, the Tax Statement and/or Transaction Fees, as supplied to Parent, shall be subject deemed to adjustmenthave been accepted and agreed to by Parent, and shall be final and binding on the parties to this Agreement. The parties shall thereafter have 15 days to discuss and reach resolution on any items of dispute. Any items of dispute regarding the Closing Date Balance Sheet and/or the Tax Statement which are not so resolved shall be submitted to the Chicago, Illinois office of KPMG (the "Arbitrating Accountant") or if KPMG is unwilling to serve as follows: Arbitrating Accountant, to a nationally recognized so called "big-five" firm of public accountants mutually acceptable to the Shareholders' Representative and Parent, who shall have no conflict of interest with respect to either party and who shall serve as an arbitrator hereunder, the expenses of which shall be shared one-half by the Shareholders and one-half by Parent. If the Surviving Corporation or Parent and the Shareholders' Representative are unable to agree on an Arbitrating Accountant pursuant to the foregoing, each of the (i) to the extent that the Closing Date Net Worth exceeds the Company Baseline Net Worth, the Merger Consideration will be increased dollar for dollar by the amount by which the Closing Date Net Worth exceeds the Company Baseline Net Worth; Surviving Corporation or Parent and (ii) to the extent that Shareholders' Representative shall, within forty-five (45) days after delivery of the Closing Date Net Worth is less than Dispute Notice select a disinterested arbitrator with relevant experience of its choice, and the Company Baseline Net Worthtwo disinterested arbitrators so selected shall select, the Merger Consideration will be decreased dollar for dollar by the amount by which the Closing Date Net Worth is less than the Company Baseline Net Worth. Any increase in the Merger Consideration shall be paid to the Company Stockholders by Parent in the form of additional Stock Consideration within ten (10) days after delivery of the Closing Balance Sheet selection of such arbitrators, an Arbitrating Accountant. In connection with the resolution of any dispute, the arbitrator or arbitrators shall have access to all documents, records, work papers, facilities and the determination of the Closing Date Net Worthpersonnel necessary to perform its function as arbitrator. The arbitrator or arbitrators so selected shall render a written decision as promptly as practicable, unless such Closing Balance Sheet and/or the determination of the Closing Date Net Worth is subject to dispute hereunder. Any decrease but in the Merger Consideration shall be paid to Parent by the Company Stockholders on a pro rata basis based upon the number of shares of Company Common Stock held of record by each Company Stockholder immediately prior to the Effective Time in cash by wire transfer or certified cashier’s check within ten no event later than twenty (1020) days after delivery submission of the Closing Balance Sheet matter to the Arbitrating Accountant. The decision of the arbitrator shall be final and binding upon the parties, and judgment may be entered on such decision in a court of competent jurisdiction. To the extent not otherwise provided herein, the commercial arbitration rules of the American Arbitration Association as in effect at the time of any arbitration shall govern such arbitration in all respects. The determination of the Closing Date Net Worth, unless such Closing Balance Sheet and/or the determination of the Closing Date Net Worth is subject to dispute hereunder. In the event that the Company Stockholders shall fail to make such payment in full within such ten (10) day period, or such longer period as is required to resolve a dispute as to the Closing Balance Sheet and/or the determination of the Closing Date Net Worth as hereinafter provided, the amount of any such deficiency shall constitute Damages firm with respect to which Parent any and all disputes shall have the right to seek indemnification from Xxxxx under Section 9.2(a) of this Agreement, be conclusive and to assert a claim for payment of such amount in accordance with the provisions of the Escrow Agreementbinding upon all parties.

Adjustment of Merger Consideration. (a) The Merger Consideration shall be calculated and paid promptly following the Closing without adjusting the Merger Consideration pursuant adjusted downward on a dollar for dollar basis to the provisions extent that shareholders' equity of this Section 1.13. Thereafter, following the preparation of Target as reflected on the Closing Balance Sheet, reduced by the aggregate amount of consideration received by Target for exercise of options and warrants following the date of this Agreement, is less than $98,800. Such adjustment shall be made first from the Excess Deal Expenses (as defined in Section 2.6(b), and then by reducing the Merger Consideration shall be subject Securities and the Cash Component in proportion to adjustmenttheir respective percentages of the Merger Consideration, with each share of Acquiror Common Stock valued at the closing price of Acquiror Common Stock on NASDAQ on the date immediately preceding the Closing Date. As soon as follows: (i) practicable, but not later than five business days prior to the extent Closing Date, the Target shall prepare and deliver to Acquiror a good faith estimate of the balance sheet of the Target as of the Closing Date (the "Closing Balance Sheet"), together with a certificate of the President of Target certifying that the Closing Date Net Worth exceeds the Company Baseline Net Worth, the Merger Consideration will be increased dollar for dollar by the amount by which the Balance Sheet is true and correct in all material respects and has been prepared in accordance with GAAP. The Closing Date Net Worth exceeds the Company Baseline Net Worth; or (ii) to the extent that the Closing Date Net Worth is less than the Company Baseline Net Worth, the Merger Consideration will be decreased dollar for dollar by the amount by which the Closing Date Net Worth is less than the Company Baseline Net Worth. Any increase in the Merger Consideration Balance Sheet shall be paid to the Company Stockholders by Parent prepared in the form of additional Stock Consideration within ten (10) accordance with GAAP. Acquiror shall have three business days after delivery from receipt of the Closing Balance Sheet to deliver a written notice of disagreement ("Notice of Disagreement"). During such period, the Target shall make the books and the determination accounting records of the Closing Date Net Worth, unless such Closing Balance Sheet and/or the determination of the Closing Date Net Worth is subject Target (including work papers) and appropriate Target accounting personnel reasonably available to dispute hereunderAcquiror. Any decrease such Notice of Disagreement shall specify in reasonable detail the Merger Consideration shall be paid to Parent by the Company Stockholders on a pro rata basis based upon the number nature of shares any disagreement so asserted. If no Notice of Company Common Stock held of record by each Company Stockholder immediately prior to the Effective Time in cash by wire transfer or certified cashier’s check Disagreement is delivered within ten (10) days after delivery of such five day period, the Closing Balance Sheet shall become final and binding upon Acquiror and the determination Target. Following delivery of a Notice of Disagreement, the Closing Date Net Worth, unless such Closing Balance Sheet and/or the determination of the Closing Date Net Worth is subject to dispute hereunder. In the event that the Company Stockholders parties shall fail to make such payment in full within such ten (10) day period, or such longer period as is required attempt to resolve a dispute as to the Closing Balance Sheet and/or the determination of the Closing Date Net Worth as hereinafter provided, the amount of any such deficiency shall constitute Damages differences which they may have with respect to any matter specified in the Notice of Disagreement. If prior to the scheduled Closing Date, the parties fail to reach a written agreement with respect to all such matters, then all such matters as specified in the Notice of Disagreement as to which Parent such written agreement has not been reached (the "Disputed Matters") shall have be submitted to and reviewed by an arbitrator (the right "Arbitrator"), who shall be an audit partner of any of the "big five" accounting firms (other than KPMG Peat Marwick LLP or Arthxx Xxxexxxx XXX) selected by Acquiror's and Target's representatives at their respective independent accounting firms. The Arbitrator shall act promptly (in no event to seek indemnification from Xxxxx under Section 9.2(aexceed 20 days) to resolve all Disputed Matters and his or her decision with respect to all Disputed Matters shall be final and binding upon Acquiror and the Target. The fees and expenses of this Agreement, the Arbitrator incurred in resolving the Disputed Matters shall be borne equally by Acquiror and to assert a claim for payment of such amount in accordance the Target (with the provisions Target's portion of the Escrow Agreementfees and expenses being a further adjustment to the Merger Consideration (reducing the Merger Securities and the Cash Component in proportion to their respective percentages of the Merger Consideration, with each share of Acquiror Common Stock valued at the closing price of Acquiror Common Stock on NASDAQ on the date immediately preceding the Closing Date). The Closing Date shall be postponed until all Disputed Matters have been resolved by the Arbitrator or waived in writing by the parties.

Adjustment of Merger Consideration. (a) The Merger Consideration shall be calculated and paid promptly As soon as practicable but in no event later than thirty (30) days following the Closing without adjusting Date, Parent, at its expense, shall cause the Merger Consideration preparation of a final balance sheet of the Company, as at the close of business on the Closing Date (the “Final Closing Date Balance Sheet”), prepared in accordance with GAAP and in accordance with the same principles and methods followed in preparing the Financial Statements referred to in Section 3.05 hereof. Parent shall share with the Stockholder Representative (as defined Section 10.01) such detailed calculations and supporting documents as the Stockholder Representative shall reasonably request in connection with its review thereof. The Stockholder Representative may submit to Parent, not later than fifteen (15) days from the receipt of the Final Closing Date Balance Sheet from Parent, a list of any components of the Final Closing Date Balance Sheet with which the Stockholder Representative disagrees, if any (a “Dispute Notice”). If the Stockholder Representative does not issue a Dispute Notice prior to such date, the Final Closing Date Balance Sheet, as supplied to the Stockholder Representative, shall be deemed to have been accepted and agreed to by the Stockholder Representative on behalf of the Stockholders, and shall be final and binding on the parties to this Agreement and all Stockholders. In the event of a Dispute Notice by the Stockholder Representative, Parent and the Stockholder Representative shall thereafter for a period of up to twenty (20) days negotiate in good faith to resolve any items of dispute. Any items of dispute regarding the Final Closing Date Balance Sheet which are not so resolved shall be submitted to Deloitte (the “Arbitrating Accountant”) or another nationally recognized firm of public accountants mutually acceptable to Parent and the Stockholder Representative, who shall serve as an arbitrator hereunder, the expenses of which shall be shared one-half by Parent and one-half by the Stockholder Representative, on behalf of the Stockholders, unless otherwise determined by the Arbitrating Accountant. If Parent and the Stockholder Representative are unable to agree on an Arbitrating Accountant pursuant to the provisions foregoing, each of this Section 1.13. Thereafter(x) Parent and (y) the Stockholder Representative shall, following the preparation of the Closing Balance Sheet, the Merger Consideration shall be subject to adjustment, as follows: (i) to the extent that the Closing Date Net Worth exceeds the Company Baseline Net Worth, the Merger Consideration will be increased dollar for dollar by the amount by which the Closing Date Net Worth exceeds the Company Baseline Net Worth; or (ii) to the extent that the Closing Date Net Worth is less than the Company Baseline Net Worth, the Merger Consideration will be decreased dollar for dollar by the amount by which the Closing Date Net Worth is less than the Company Baseline Net Worth. Any increase in the Merger Consideration shall be paid to the Company Stockholders by Parent in the form of additional Stock Consideration within ten (10) days after delivery of the Closing Balance Sheet Dispute Notice select a disinterested arbitrator with relevant experience, and the determination of the Closing Date Net Worthtwo disinterested arbitrators so selected shall select, unless such Closing Balance Sheet and/or the determination of the Closing Date Net Worth is subject to dispute hereunder. Any decrease in the Merger Consideration shall be paid to Parent by the Company Stockholders on a pro rata basis based upon the number of shares of Company Common Stock held of record by each Company Stockholder immediately prior to the Effective Time in cash by wire transfer or certified cashier’s check within ten (10) days after delivery of the Closing Balance Sheet selection of such arbitrators, an Arbitrating Accountant. In connection with the resolution of any dispute, the Arbitrating Accountant shall have access to all documents, records, work papers, facilities and personnel necessary to perform its function as arbitrator. The Arbitrating Accountant so selected shall render a written decision as promptly as practicable, but in no event later than thirty (30) days after submission of the matter to the Arbitrating Accountant. The decision of the Arbitrating Accountant shall be final and binding upon the parties and the Stockholders, and judgment may be entered on such decision in a court of competent jurisdiction. To the extent not otherwise provided herein, the commercial arbitration rules of the American Arbitration Association as in effect at the time of any arbitration shall govern such arbitration in all respects. The determination of the Closing Date Net Worth, unless such Closing Balance Sheet and/or the determination of the Closing Date Net Worth is subject to dispute hereunder. In the event that the Company Stockholders shall fail to make such payment in full within such ten (10) day period, or such longer period as is required to resolve a dispute as to the Closing Balance Sheet and/or the determination of the Closing Date Net Worth as hereinafter provided, the amount of any such deficiency shall constitute Damages Arbitrating Accountant with respect to which Parent any and all disputes with respect to the Final Closing Date Balance Sheet shall have the right to seek indemnification from Xxxxx under Section 9.2(a) of this Agreement, be conclusive and to assert a claim for payment of such amount in accordance with the provisions of the Escrow Agreementbinding upon all parties.