Adjustments to the Purchase Price As soon as practicable (but not more than five business days) after the date on which the Final Closing Balance Sheet shall have been determined in accordance with this Section 2.5.3:
(a) the Escrow Agent shall:
(i) release from the ESOP Adjustments and Claims Escrow and pay to Federal an amount in immediately available funds equal to the product of (1) the amount, if any, by which the Net Worth (after the M Street Lease Adjustment) as set forth in the Final Closing Balance Sheet is less than the amount of Net Worth (after the M Street Lease Adjustment) as set forth in the Estimated Closing Balance Sheet and (2) the ESOP Percentage. The difference between any payment to Federal pursuant to this Section 2.5.3(a)(i) and the product of $2,000,000 (Two Million Dollars) and the ESOP Percentage, shall be released to the ESOP Stockholders’ Representative; and
(ii) release from the Non-ESOP Adjustments and Claims Escrow and pay to Federal an amount in immediately available funds equal to the product of (1) the amount, if any, by which the Net Worth (after the M Street Lease Adjustment) as set forth in the Final Closing Balance Sheet is less than the amount of Net Worth (after the M Street Lease Adjustment) as set forth in the Estimated Closing Balance Sheet and (2) the Non-ESOP Percentage. The difference between any payment to Federal pursuant to this Section 2.5.3(a)(ii) and the product of $2,000,000 (Two Million Dollars) and the Non-ESOP Percentage shall be released to the Non-ESOP Stockholders’ Representative as Paying Agent; and
(b) Federal shall pay to:
(i) the ESOP Stockholder an amount in immediately available funds equal to the product of (1) the amount, if any, by which the Net Worth (after the M Street Lease Adjustment) as set forth in the Final Closing Balance Sheet is greater than the Net Worth (after the M Street Lease Adjustment) as set forth in the Estimated Closing Balance Sheet and (2) the ESOP Percentage; and
(ii) the Non-ESOP Stockholders’ Representative, as Paying Agent, an amount in immediately available funds equal to the product of (1) the amount, if any, by which the Net Worth (after the M Street Lease Adjustment) as set forth in the Final Closing Balance Sheet is greater than the Net Worth (after the M Street Lease Adjustment) as set forth in the Estimated Closing Balance Sheet and (2) the Non-ESOP Percentage; and
(c) Pursuant to Section 2.5.3(b) following payment by Federal to the ESOP Shareholder’s Representative and the Non-ESOP Stockholder’s Representative, respectively, of any amount by which the Net Worth as set forth in the Final Closing Balance Sheet is greater than the Net Worth as set forth in the Estimated Closing Balance Sheet, the Escrow Agent shall:
(i) release from the ESOP Adjustments and Claims Escrow and pay to the ESOP Stockholder’s Representative an amount in immediately available funds equal to the product of (1) $2,000,000 (Two Million Dollars) and (2) the ESOP Percentage; and
(ii) release from the Non-ESOP Adjustments and Claims Escrow and pay to the Non-ESOP Stockholders’ Representative as paying agent an amount in immediately available funds equal to the product of (1) $2,000,000 (Two Million Dollars) and (2) the Non-ESOP Percentage. All payments made pursuant to this Section 2.5.3 shall constitute immediate adjustments of the Purchase Price in such amounts.
Adjustments to Purchase Price At Closing, the Purchase Price shall be adjusted (without duplication) in accordance with this Section 2.4.
(a) The Purchase Price shall be increased by the following amounts:
(i) the amount of all production expenses, operating expenses, third-party overhead expenses under applicable operating agreements, ad valorem and severance taxes, well bonds and capital expenditures actually paid by Seller in connection with the Assets, insofar and only insofar as the same are attributable to the period of time from and after the Effective Time, including, without limitation, (a) all operating costs and expenses paid by Seller, (b) all capital expenditures, including, without limitation, all drilling, completion, reworking, deepening, side-tracking, plugging and abandoning costs and expenses and paid by Seller, (c) all prepaid expenses and land related costs and expenses attributable to the Assets, including, without limitation, all bonus payments, royalty disbursements, delay rental payments, shut-in payments and other similar costs paid by Seller (provided, however, that the Purchase Price shall not be increased by land related expenses incurred by Seller in connection with Title Defect or Environmental Defect curative work), (d) excise, severance and production tax payments, and any other tax payments based upon or measured by the production of Sale Hydrocarbons or the proceeds of sale or other disposition therefrom paid by Seller and (e) expenses paid by Seller to any third party under applicable joint operating agreements or other contracts or agreements included in the Assets (with respect to which Seller shall provide Buyer with copies of the related invoices);
(ii) an amount equal to the value of all Stock Hydrocarbons (it being understood that such value shall be calculated based on the reference prices set forth in Schedule 2.4(a)(ii) determined as of the Effective Time, less transportation costs, quality adjustment, if any, applicable taxes and royalty payments);
(iii) the adjustment amount, if any, due Seller as determined pursuant to Section 11.1 with respect to Imbalances;
(iv) by Six Hundred Thousand Dollars ($600,000.00) if all of Seller’s right, title and interest in the RCVC Agreement are assigned to Buyer pursuant to the terms of this Agreement; and
(v) any other amount specified herein or otherwise agreed upon by Seller and Buyer in writing.
(b) The Purchase Price shall be decreased by the following amounts:
(i) an amount equal to the net proceeds (the price at which the Hydrocarbons are sold after the Effective Time, less transportation costs, quality adjustment, if any, applicable taxes and royalty payments) received by Seller from the sale or other disposition of Sale Hydrocarbons and Stock Hydrocarbons;
(ii) all actual production expenses, operating expenses, overhead under applicable operating agreements, taxes, and capital expenditures paid or incurred by Buyer in connection with the Assets (including, without limitation, royalties, minimum royalties, rentals, and prepaid charges, including, without limitation, prepaid taxes and prepaid insurance), to the extent they are attributable to the ownership or operation of the Assets (or to the Hydrocarbons produced and saved from, or allocable to, the Assets) before the Effective Time;
(iii) an amount equal to all proceeds received by Seller from whatever source that relate to the sale of Assets and are attributable to periods after the Effective Time;
(iv) the adjustment amount, if any, due Buyer as determined pursuant to Section 11.1 with respect to Imbalances;
(v) if reductions due to the aggregate Title Defect Value is greater than the aggregate Title Benefit Value, as provided in Section 6, an amount equal to such difference;
(vi) reductions due to Environmental Defects as provided in Section 7;
(vii) reductions due to the exercise of Preferential Rights as provided for in Section 9.2 or the time for the exercise of such right has not expired by Closing, or for the Allocated Value of Assets for which consents to assignment have not been obtained by Closing;
(viii) reductions due to Casualty Loss as provided in Section 11.3;
(ix) Seller’s pro rata share of taxes as determined pursuant to Section 4.1;
(x) reductions of the aggregate Allocated Values (without application of thresholds and deductibles) of Leases: (a) for which a consent for assignment has not been obtained by Closing and (b) which have an expiration date between execution of this Agreement and three (3) months after the Closing Date which have not been cured by an extension of such Lease for a period of time of not less than one (1) year; and
(xi) any other amount specified herein or otherwise agreed upon by Seller and Buyer in writing.
Adjustments to Option The Option shall be subject to the adjustment provisions of Sections 8 and 9 of the Plan, provided, however, that in the event of the payment of an extraordinary dividend by the Company to its shareholders: the Exercise Price of the Option shall be reduced by the amount of the dividend paid, but only to the extent the Committee determines it to be permitted under applicable tax laws and to not have adverse tax consequences to the Optionee under Section 409A of the Code; and, if such reduction cannot be fully effected due to such tax laws and it will not have adverse tax consequences to the Optionee, then the Company shall pay to the Optionee a cash payment, on a per Share basis, equal to the balance of the amount of the dividend not permitted to be applied to reduce the Exercise Price of the applicable Option as follows: (a) for each Share subject to a vested Option, immediately upon the date of such dividend payment; and (b) for each Share subject to an unvested Option, on the date on which such Option becomes vested and exercisable with respect to such Share.
Payments to the Owner Allstate Life shall withdraw from the Funding Account and pay to or at the direction of the Owner amounts in accordance with the terms set forth in the Annex hereto. All payments made by Allstate Life to the Owner hereunder shall be paid in cash, in same-day, freely transferable funds on the date of payment to such account as has been specified for such purpose in writing by the Owner to Allstate Life.
Adjustments to the Shares The Warrant Exercise Price and the number of Warrant Shares obtainable upon exercise of this Warrant shall each be subject to adjustment from time to time as provided in this Section 2.
Adjustments to Conversion Price (a) If the Company shall at any time while this Debenture is outstanding subdivide the outstanding shares of its Common Stock, the Conversion Price then in effect immediately before that subdivision shall be proportionately decreased, and if the Company shall at any time while this Debenture is outstanding combine the outstanding shares of Common Stock, the Conversion Price then in effect immediately before that combination shall be proportionately increased. Except as otherwise provided below, any adjustment under this Section 5.3 shall become effective at the close of business on the date the subdivision or combination becomes effective. A dividend on any security of the Company payable in Common Stock, or a split of the Company's Common Stock, shall be considered a subdivision of Common Stock for purposes of this Section 5.3 at the close of business on the record date with respect to such dividend or stock split. A reverse split of the Company's Common Stock shall be considered a combination of Common Stock for purposes of this Section 5.3 at the close of business on the record date with respect to such reverse stock split.
(b) In the event the Company, at any time or from time to time while this Debenture is outstanding, shall make or issue, or fix a record date for the determination of holders of Common Stock entitled to receive, a dividend or other distribution with respect to the Company's Common Stock payable in securities of the Company other than shares of Common Stock, then and in each such event, provisions shall be made so that the Holder shall receive upon conversion hereof, in addition to the number of shares of Common Stock receivable thereupon, the amount of securities of the Company which he would have received had this Debenture been converted into Common Stock on the date of such event and had the Holder thereafter, during the period from the date of such event to and including the conversion date, retained such securities receivable by him.
(c) If while this Debenture is outstanding, the Shares issuable upon conversion of this Debenture shall be changed into the same or a different number of shares of any other class or classes of stock of the Company, whether by recapitalization, reclassification or other exchange (other than a subdivision or combination of shares, or a capital reorganization, merger or sale of assets, provided for elsewhere in this Section 5.3), the Holder shall, upon the conversion of this Debenture, be entitled to receive, in lieu of the Shares which the Holder would have become entitled to receive but for such change, a number of shares of such other class or classes of stock that would have been subject to receipt by the Holder if he had exercised his right of conversion of this Debenture immediately before that change.
(d) If while this Debenture is outstanding, there shall be a merger or consolidation of the Company with or into another corporation (other than a merger which does not result in any reclassification, conversion, exchange or cancellation of outstanding shares of Common Stock of the Company), or the sale of all or substantially all of the Company's properties and assets to any other person, then, as a part of such merger, consolidation or sale, lawful provision shall be made so that the Holder shall thereafter be entitled to receive upon conversion of this Debenture, during the period specified in this Debenture, the number of shares of stock or other securities or property of the Company, or of the successor corporation resulting from such merger, consolidation or sale, to which a holder of the Shares deliverable upon conversion of this Debenture would have been entitled on such merger, consolidation or sale if this Debenture had been converted immediately before such merger, consolidation or sale. In any such case, appropriate adjustment shall be made in the application of the provisions of this Section 5.3 with respect to the rights of the Holder after such merger, consolidation or sale to the end that the provisions of this Section 5.3 (including adjustments of the Conversion Price then in effect and number of shares purchasable upon conversion of this Debenture) shall continue to be applicable after that event and shall be as nearly equivalent to the provisions hereof as may be practicable.
(e) The Company shall promptly and in any case not later than ten (10) days after the date of any adjustment of the Conversion Price give written notice of such adjustment and the number of Shares or other securities issuable upon conversion of this Debenture, by first-class mail, postage prepaid, to the registered Holder at the Holder's address as shown on the Debenture Register. The certificate shall state such adjustment and show in reasonable detail the facts on which such adjustment is based.
(f) The form of this Debenture need not be changed because of any adjustment in the Conversion Price or in the number of Shares issuable upon its conversion. A Debenture issued after any adjustment on any partial conversion or upon replacement may continue to express the same Conversion Price and the same number of Shares (appropriately reduced in the case of partial conversion) as are stated on this Debenture as initially issued, and that Conversion Price and that number of Shares shall be considered to have been so changed as of the close of business on the date of the adjustment.
Adjustments to Payments (a) If any payment or benefit Executive would receive pursuant to this Agreement or otherwise, including accelerated vesting of any equity compensation (all such payments and/or benefits hereinafter, “Payment”), would (i) constitute a “parachute payment” within the meaning of Section 280G of the Code, and (ii) but for this sentence, be subject to the excise tax imposed by Section 4999 of the Code (the “Excise Tax”), then such Payment shall be either (x) provided to the Executive in full, or (y) provided to the Executive to such lesser extent which would result in no portion of such Payment being subject to the excise tax, further reduced by $5,000 (including such further reduction, the “Cutback Amount”), whichever of the foregoing amounts, when taking into account applicable federal, state, local and foreign income and employment taxes, such excise tax and other applicable taxes, (all computed at the highest applicable marginal rates), results in the receipt by the Executive, on an after-tax basis, of the greatest amount of the Payment, notwithstanding that all or a portion of such Payment may be subject to the excise tax. If a reduction in payments or benefits constituting “parachute payments” is necessary so that the Payment equals the Cutback Amount, reduction shall occur in the following order: (A) cash payments shall be reduced first and in reverse chronological order such that the cash payment owed on the latest date following the occurrence of the event triggering such excise tax will be the first cash payment to be reduced; (B) accelerated vesting of performance-based equity awards shall be cancelled or reduced next and in the reverse order of the date of grant for such awards (i.e., the vesting of the most recently granted awards will be reduced first), with full-value awards reduced before any performance-based stock option or stock appreciation rights are reduced; (C) health and welfare benefits shall be reduced and in reverse chronological order such that the benefit owed on the latest date following the occurrence of the event triggering such excise tax will be the first benefit to be reduced; and (D) accelerated vesting of time-based equity awards shall be cancelled or reduced last and in the reverse order of the date of grant for such awards (i.e., the vesting of the most recently granted awards will be reduced first), with full-value awards reduced before any time-based stock option or stock appreciation rights are reduced.
(b) The Company shall appoint a nationally recognized accounting firm to make the determinations required hereunder and perform the foregoing calculations. The Company shall bear all expenses with respect to the determinations by such accounting firm required to be made hereunder. The accounting firm engaged to make the determinations hereunder shall provide its calculations, together with detailed supporting documentation, to the Company and Executive within fifteen (15) calendar days after the date on which right to a Payment is triggered (if requested at that time by the Company or Executive). Any good faith determinations of the accounting firm made hereunder shall be final, binding and conclusive upon the Company and Executive.
Subsequent Adjustments In the event that the Assuming Institution or the Receiver discovers any errors or omissions as contemplated by Section 8.2 or any error with respect to the payment made under Section 8.3 after the Settlement Date, the Assuming Institution and the Receiver agree to promptly correct any such errors or omissions, make any payments and effect any transfers or assumptions as may be necessary to reflect any such correction plus interest as provided in Section 8.4.
Payment Adjustments The Monthly Capitation Payments shall be adjusted for a period not to exceed twenty-four (24) months prior to the Monthly Capitation Payment to reflect corrections to the Enrollee Listing Report. Payments will be adjusted to reflect the automatic enrollment of eligible newborn infants. At such time that Kentucky HEALTH is live, a delivery payment will be paid on the eighth (8th) day of the month for the previous month’s claims. Claims for payment adjustments shall be deemed to have been waived by the Contractor if a payment request is not submitted in writing within twelve (12) months following the month for which an adjustment is requested. Waiver of a claim for payment shall not release the Contractor of its obligations to provide Covered Services pursuant to the Contract. In the event that an Enrollee is eligible and enrolled, but does not appear on the Enrollee Listing Report, the Contractor may submit a payment adjustment request. The Contractor shall submit the request in accordance with Appendix D “Reporting Requirements and Reporting Deliverables” for automated reporting requirements. In the event that an Enrollee is eligible and enrolled and the Contractor believes the Capitation Payment was in error due to underpayment, overpayment, or duplicate payment, the Contractor may submit a payment adjustment request. The Contractor shall submit the request in accordance with Appendix D “Reporting Requirements and Reporting Deliverables” for automated reporting requirements. In the event that an Enrollee does not appear on the Enrollee Listing Report, but the Department has paid the Contractor for an Enrollee, the Department may request and obtain a refund of, or it may recoup from subsequent payments, any payment previously made to the Contractor. In the event an Enrollee appears on the Enrollee Listing Report but is determined to be ineligible, the Department may request and obtain a refund of, or it may recoup from subsequent payments, any payment previously made to the Contractor. In such instances, for each Enrollee that is determined to be ineligible, the Contractor may recover payment from any Provider who rendered services to Enrollee during the period of ineligibility. The entity to which the Enrollee is retroactively added shall assume responsibility for payment of any services provided to Enrollees during the period of adjusted eligibility. For cases involving Enrollee ineligibility due to Fraud, Waste, and Abuse, the Department shall only recoup the Capitation amount and the Contractor shall establish procedures pursuant to Section
Adjustments to Shares If at any time while this Agreement is in effect (or Shares granted hereunder shall be or remain unvested while Recipient’s Continuous Service continues and has not yet terminated or ceased for any reason), there shall be any increase or decrease in the number of issued and outstanding Shares of the Company through the declaration of a stock dividend or through any recapitalization resulting in a stock split-up, combination or exchange of such Shares, then and in that event, the Board or the Committee shall make any adjustments it deems fair and appropriate, in view of such change, in the number of shares of Restricted Stock then subject to this Agreement. If any such adjustment shall result in a fractional Share, such fraction shall be disregarded.
