Adjustments of Purchase Price. (1) Solely for purposes of facilitating the calculation of the cash due Buyer or Seller, as applicable, on the Closing Date, Seller shall provide to Buyer, five (5) Business Days before the Closing Date, the Draft Closing Statement.
(2) On or before 12:00 noon E.D.T. on the thirtieth (30th) calendar day following the Closing Date (the “Adjustment Date”), Seller shall deliver to Buyer the Final Closing Statement and Seller shall make available to Buyer such work papers, schedules and other supporting data used to calculate and prepare the Final Closing Statement and as may be requested by Buyer to enable Buyer to verify such determinations set forth in the Final Closing Statement.
(3) If, within forty-five (45) calendar days following the date of receipt by Buyer of the Final Closing Statement, Buyer does not dispute any items contained in the Final Closing Statement or omitted therefrom, then the Final Closing Statement shall be final and binding upon the parties. In the event that Buyer disputes any items contained in the Final Closing Statement or omitted therefrom, such disputes shall be resolved in the following manner:
(A) Buyer shall notify Seller, in writing (the “Notice of Disagreement”) of such dispute within forty-five (45) calendar days after Buyer’s receipt of the Final Closing Statement, which notice shall specify in reasonable detail the nature of the dispute, indicating those specific items that are in dispute (the “Disputed Items”). To the extent that Buyer provides a Notice of Disagreement within such 45-day period, all items that are not Disputed Items shall be final, binding and conclusive for all purposes hereunder.
(B) During the 30-day period following Seller’s receipt of a Notice of Disagreement from Buyer, Seller and Buyer shall use commercially reasonable efforts to resolve any Disputed Items. If, at the end of such 30-day period, the parties have reached written agreement with respect to all matters covered by a Notice of Disagreement, the Final Closing Statement shall be adjusted to reflect such written agreement and shall become final and binding upon the parties hereto.
(C) If, at the end of the 30-day period specified in subsection (b)(3)(B) above, Buyer and Seller shall have failed to reach a written agreement with respect to all or a portion of such Disputed Items (those Disputed Items that remain in dispute at the end of such period are the “Unresolved Changes”), then Buyer and Seller shall promptly refer only those Unresol...
Adjustments of Purchase Price. (a) In the event that the Company shall at any time after the date of this Agreement (i) pay a dividend, or make a distribution, on the Common Stock which is payable in shares of its Common Stock or securities convertible into Common Stock, (ii) subdivide or reclassify its then outstanding shares of Common Stock into a greater number of shares, or (iii) combine its outstanding shares of Common Stock by reclassification or otherwise; then, in any such event, the Purchase Price in effect immediately prior to such event shall (until adjusted again pursuant hereto) be adjusted immediately after such event to a price (calculated to the nearest full cent) determined by dividing (A) the number of shares of Common Stock outstanding immediately prior to the occurrence of such event, multiplied by the then existing Purchase Price by (B)the total number of shares of Common Stock outstanding immediately after the occurrence of such event (including the maximum number of shares of Common Stock issuable in respect of any securities convertible into Common Stock) and the resulting quotient shall be the adjusted Purchase Price per share. An adjustment made pursuant to this subparagraph (a) shall become effective immediately after the record date in the case of a dividend and shall become effective immediately after the effective date in the case of a subdivision or combination.
(b) No adjustments of the Purchase Price shall be made if the amount of such adjustments shall be less than $.01 per share, but in such case any adjustment that would otherwise be required then to be made shall be carried forward and shall be made at the time and together with a subsequent adjustment which, together with any adjustment or adjustments so carried forward, shall not amount to less than $.01 per share.
Adjustments of Purchase Price. (a) Documentation On or before 31 December 2003 where available or when earliest available, the Buyer must deliver to the Seller a statement setting out the Revenue in respect of each calendar month from 1 November 2002 to 30 November 2003, and any other information reasonably required by the Seller in order to determine comprehensively and accurately the Revenue in each of those calendar months.
(b) The Buyer must use best efforts in accordance with the Buyer's normal debt collection procedures to collect all outstanding amounts arising from invoices issued for services rendered to Customers from 11 November 2002 to 10 November 2003. At the Seller's reasonable request, the Buyer must provide the Seller with documentary evidence that the Buyer had complied with this clause 4.2(b).
(c) Subject to clause 4.2(e), if 25% of the Revenue for the period from 1 December 2002 to 31 October 2003 inclusive plus 16.67% of the Revenue in November 2002 plus 8.33% of the Revenue in November 2003 (First Adjustment Amount) exceeds RM304,000, such surplus hereinafter known as "Additional Revenue", then on or before 7 January 2004, the Buyer must pay to the Seller the Additional Revenue by electronic transfer in RM and to the bank account nominated by the Seller in writing, or as otherwise instructed by the Seller from time to time.
(d) Subject to clause 4.2(e), if the First Adjustment Amount is less than RM304,000, such shortfall hereinafter known as "Excess Payment", then on or before 7 January 2004, the Seller must provide or procure its Affiliate to provide to the Buyer the Excess Payment by electronic transfer in RM and to the bank account nominated by the Buyer from time to time.
(e) Any calculation of the First Adjustment Amount under clauses 4.2(c) and 4.2(d) shall not take into account any Revenue that the Buyer decided not to take up under clause 4.7(b).
(f) The Seller must pay interest on any overdue amount due to the Buyer under this agreement, calculated daily at the Interest Rate, from the date payment is due until the date that the Seller pays in full the relevant overdue amount and any interest accrued on that amount.
(g) On 30 April 2004, the Buyer must deliver to the Seller a statement (Second Adjustment Statement) setting out further Revenue arising from all invoices issued for services rendered to Customers under the Customer Contracts in the period from 1 November 2002 until 30 November 2003 inclusive and received by the Buyer in the period from 1 Decemb...
Adjustments of Purchase Price. 3.1 The overall Purchase Price of MIDAS interests referred to in clause III.
2.1 has been established by the Parties on the assumption that the Net Invested Capital of MIDAS in the business which is the object of the Transaction is US $ 49 million, according to the criteria and calculation of Net Invested Capital enclosed as Annex B hereto.
3.2 Immediately after the signature of this Agreement, MARELLI will perform a due diligence investigation including but not limited to the Net Invested Capital of MIDAS in such activities, legal, tax, accounts, real estate, labor matters. The due diligence investigation will be performed within 30 days from the date hereof.
3.3 If a deficiency in Net Invested Capital will result, unless contested by MIDAS in which event clause III.
Adjustments of Purchase Price. 3.1 The overall Purchase Price of MIDAS interests referred to in clause III.2.1 has been established by the Parties on the assumption that the Net Invested Capital of MIDAS in the business which is the object of the Transaction is US $ 49 million, according to the criteria and calculation of Net Invested Capital enclosed as Annex B hereto.
3.2 Immediately after the signature of this Agreement, MARELLI will perform a due diligence investigation including but not limited to the Net Invested Capital of MIDAS in such activities, legal, tax, accounts, real estate, labor matters. The due diligence investigation will be performed within 30 days from the date hereof.
3.3 If a deficiency in Net Invested Capital will result, unless contested by MIDAS in which event clause III.3.5 will apply, and subject to the provisions of section III.3.5, MARELLI will be entitled to an adjustment of the relevant Purchase Price for an equal amount.
3.4 If a surplus in Net Invested Capital will result, then MIDAS will be entitled to an adjustment for an equal amount.
3.5 In the event that MIDAS will contest a deficiency in Net Invested Capital shown by the results of the due diligence investigation performed by MARELLI under clauses III.3.2, III.3.3 and III.3.4 above, then within 10 days the Parties shall appoint an independent auditor (the “Independent Auditor”). The Independent Auditor within 15 days from its appointment shall deliver its determinations of Net Invested Capital to the Parties, which determinations shall be final and binding on the Parties. If a deficiency of Net Invested Capital arises which is US $ 5 million or less, MARELLI shall be entitled to an adjustment of the Purchase Price as provided in section III.3.3. If a deficiency of Net Invested Capital arises which is over and above US $ 5 million, the Parties shall negotiate with respect to any amount which is in excess of the US $ 5 million. Failing an agreement about the payment of such excess amount either Party shall have the right to terminate this Agreement. Fees, costs and expenses of the Independent Auditor shall be equally shared between the Parties.
Adjustments of Purchase Price. The Purchase Price specified in Section 2.03 above assumes that the sum of Purchased Receivables and (ii) Purchased Inventory, less the sum of (iii) Purchased Payables and (iv) Product Claims in excess of $50,000, equals $1,754,000 (the "Target Sum"). Any payment made by either party, pursuant to this Section 2.06 shall be made in immediately available funds.
(a) Three business days prior to the Closing Date, the Seller, the Parent and the Buyer shall, in good faith and in accordance with GAAP, estimate the Purchased Receivables, the Purchased Inventory, the Purchased Payables and the Product Claims in excess of $50,000 as of the Effective Time, and (ii) prepare a schedule reflecting the same in reasonable detail (the "Closing Date Estimated Sum Schedule") . In the event that the sum of such estimated Purchased Receivables and Purchased Inventory less the sum of such estimated Purchased Payables and such Product Claims in excess of $50,000 (the "Estimated Sum"), as shown on the Closing Date Estimated Sum Schedule, is greater or less than the Target Sum, then the portion of the Purchase Price deliverable at the Closing pursuant to Section 2.03(a) shall be increased or reduced dollar-for-dollar to the extent which the Estimated Sum is greater than or less than the Target Sum. For purposes of making such estimate of Purchased Inventory, during such three business day period, the Buyer shall be permitted to take a physical count of the Purchased Inventory, which process shall be observed by representatives of the Buyer's accountants and one or more representatives of the Seller. The results of such count shall be made available to the Seller.
(b) Immediately following the Closing, the Buyer shall complete, if required, the process of taking a physical count of the Purchased Inventory, as contemplated by Section 2.06(a), which completion shall be observed by representatives of the Buyer's accountants and one or more representatives of the Seller. The results of such completed inventory count shall be made available to the Seller. Within 60 days after the Closing Date (or earlier if reasonably possible), the Parent and the Buyer shall, in good faith and in accordance with GAAP, calculate the actual Purchased Receivables, Purchased Inventory, Purchased Payables and Product Claims in excess of $50,000 as of the Effective Time (each, an "Actual Value," together, the "Actual Values") and shall submit a schedule showing in reasonable detail the Actual Values and the ...
Adjustments of Purchase Price. Any indemnification payments made pursuant to this Article VI shall be deemed to be adjustments of the aggregate consideration payable under Article II, to the extent permitted by the Code.
Adjustments of Purchase Price. The Parties acknowledge that accounts receivable and accounts payable with respect to the Acquired Assets have been generated and will be generated before, on and after the Effective Date and before, on and after the Closing. The Purchase Price shall be adjusted with respect to accounts receivable and accounts payable as follows:
(a) Buyer shall not be responsible for costs and expenses incurred in the operation of the Compression Business prior to the Effective Date. All accounts payable by Seller relating to costs and expenses accruing prior to the Effective Date shall remain the responsibility of Seller. Except as provided in Section 12, below, Seller shall not be responsible for costs and expenses incurred in the operation of the Compression Business after the Effective Date, and all accounts payable generated by the Compression Business relating to the costs and expenses accruing after the Effective Date shall be the responsibility of Buyer. The Purchase Price shall be reduced by the amount of any account payable for which Seller is responsible that is paid by Buyer in connection with the post-closing operation of the Compression Business. The Purchase Price shall be increased by the amount of any account payable for which Buyer is responsible that is paid by Seller.
(b) All revenue generated by the Compression Business of Seller prior to the Effective Date shall belong to Seller. All revenue generated by the Compression Business after the Effective Date shall belong to Buyer. Accounts receivable generated by operation of the Compression Business by Seller prior to the Effective Date shall be invoiced by Seller and all payments received thereon shall belong to Seller. Accounts receivable generated by operation of the Compression Business on and after the Effective Date until the Closing Date shall be invoiced by Seller unless Buyer notifies Seller that Buyer will invoice such accounts receivable, and all payments received thereon shall belong to Buyer. In these regards, Seller shall be entitled to rentals paid under the compressor leases covering lease periods ending on the Effective Date and to payment for services rendered under service and maintenance agreement until the Effective Date. Seller shall not, however, be entitled to any part of revenue received by Buyer upon the sale of equipment from the inventory and work in progress included in the Acquired Assets even though Seller may have accrued costs and expenses in relation thereto prior to the...
Adjustments of Purchase Price. (a) Within five (5) days following the Closing Date, the Seller and the Buyer shall make a mutual physical count of the Inventory at the point of shipment to determine the Inventory at the Closing (the "Closing Inventory"). In addition, the Buyer and the Seller shall have until January 31, 1999 to confirm the gross Receivables and determine the Receivables, net of Reserves on the Closing Date (the "Closing Receivables"). On the basis of such Inventory count and confirmation of the Receivables, the Buyer and the Seller shall determine if the applicable Inventory Minimums and the Receivables Minimum are satisfied. If the same are not satisfied and the difference between the applicable Inventory Minimums and the Closing Inventory or the Receivables Minimum and the Closing Receivables, as the case may be, is an amount greater than $25,000, the Purchase Price shall be reduced by (i) one dollar ($1.00) for each dollar that the value of the Closing Inventory for Forecasted Inventory is below the Forecasted Inventory Minimum, (ii) twenty eight cents ($.28) for each dollar that the value of the Closing Inventory for Special Inventory is below the Special Inventory Minimum, and (iii) one dollar ($1.00) for each dollar that the value of the Closing Receivables is below the Receivables Minimum; and in each case, the Seller shall promptly remit to the Buyer the difference in immediately available funds. In addition, if the Receivables at the Closing Date, net of the agreed to Reserves at the Closing Date, is greater than (A) the Receivables at the Closing Date, net of Reserves as of December 31, 1998, plus (B) $25,000, the Buyer shall promptly remit to the Seller the difference in immediately available funds.
(b) The parties also agree that the Buyer shall reimburse the Seller for the Seller's cost of certain gift-with-purchase or promotional items which are shipped to the customer accounts as set forth in Schedule 2.2(b) (the "Promotional Reimbursements"). The Buyer's reimbursement shall be made by wire transfer of immediately available funds to an account designated by the Seller, upon the Buyer's receipt of supporting documentation from the Seller of its cost for such items and confirmation that such gift-with-purchase or promotional items were shipped to such customer accounts.
Adjustments of Purchase Price. 3.1 Seller contemplates arranging for the Xxxxx X. Xxxxxx Trust ("Zilkha"), to purchase 5,000,000 shares (the "Additional Shares") of AcuBid Common Stock at $2.00 per share, for an aggregate cash purchase price of $10,000,000, at and subject to the Closing. AcuBid agrees to issue and sell the Additional Shares to Zilkha at such price subject to Zilkha making the same investment representations required of Seller under Section 4.20 of this Agreement. This Agreement is made in part for the benefit of Zilkha, and Zilkha shall be entitled to all rights, remedies and other benefits under this Agreement to which Seller is entitled, on a pro rata basis in accordance with the number of shares of AcuBid Common Stock issued or to be issued to each. Such rights, remedies and other benefits shall include, without limitation, all representations, warranties, covenants and agreements of AcuBid and Acquisition Corp. hereunder and all registration rights granted to Seller under this Agreement. The parties acknowledge that after the Closing, Zilkha may transfer some or all of the Additional Shares to the children or grandchildren of Xxxxx X. Xxxxx, or to trusts for their benefit, subject to such transferees making the same investment representations required of Seller under Section 4.20 of this Agreement.
