Closing Consideration Adjustment Sample Clauses

Closing Consideration Adjustment. (a) The parties have contemplated that the Adjusted Working Capital of the Company and its Subsidiaries as of the Working Capital Measurement Time (the “Closing Working Capital”), as calculated in accordance with and set forth on the Form of Working Capital Statement attached hereto as Exhibit D (the “Working Capital Statement”) will be $200,700,000 (the “Working Capital Target”). The term Indebtedness as used in this Section 2.13 and in the defined terms used within this Section 2.13, shall not include the Retained Indebtedness. (b) The Company shall cause to be prepared and, within 10 Business Days prior to the Closing Date, but in no event less than three Business Days prior to the Closing Date, shall cause to be delivered to Parent, a certificate signed by the Chief Financial Officer of the Company attaching (i) a good faith projected unaudited balance sheet of the Company as of the Closing Date prepared in accordance with GAAP using the Company Methodology and (ii) a good faith estimate of the Closing Working Capital (the “Estimated Working Capital”), together with such schedules and data with respect to the determination of the Estimated Working Capital as may be appropriate to support such calculation of the Estimated Working Capital. Following delivery of the Estimated Working Capital, the Company shall provide Parent and its representatives with reasonable access to the employees, agreements and books and records of the Company to verify the accuracy of such amounts. In the event that Parent does not agree with the Estimated Working Capital, the Company and Parent shall negotiate in good faith to mutually agree on acceptable Estimated Working Capital. The Company shall consider in good faith any proposed comments or changes that Parent may reasonably suggest; provided, however, that the Company’s failure to include any changes proposed by Parent, or the acceptance by Parent of the Estimated Working Capital, shall not limit or otherwise affect Parent’s remedies under this Agreement. If the Estimated Working Capital is less than the Working Capital Target, then the Consideration Shares shall be reduced by an amount equal to the quotient of (i) the difference of (A) the Working Capital Target less (B) the Estimated Working Capital, divided by (ii) the Closing Date Share Value (such amount shall be the “Closing Adjustment”). In the event the Estimated Working Capital exceeds the Working Capital Target, the Closing Adjustment shall be zero. (c) Parent ...

Closing Consideration Adjustment. Except as otherwise required under applicable Legal Requirements, all indemnification payments made pursuant to this Section 6 will be treated as an adjustment to the Net Closing Consideration.

Closing Consideration Adjustment. (a) No later than sixty (60) days after the end of the fiscal quarter ended forty five (45) days or more prior to the Closing Date (unless the Closing occurs on or after November 15, 2005, then no later than forty five (45) days after such quarter end), Seller shall deliver a statement (the “Adjusted EBITDA Statement”) setting forth the LTM Adjusted EBITDA and the calculation thereof. (b) No later than two Business Days prior to the Closing Date, Seller shall prepare and deliver to Buyer a certificate of an officer of Seller setting forth the aggregate amount of Liabilities of the Companies and their Subsidiaries in respect of (i) the Refund Amount, (ii) Restructuring Costs, (iii) Retention Payments; and (iv) Indebtedness (other than Indebtedness described in subsection (ii) in the definition of Indebtedness) as of June 30, 2005 (collectively, the “Purchase Price Adjustment Items”). (c) The Initial Cash Price shall be decreased by the sum of (i) the Purchase Price Adjustment Items plus (ii) the excess, if any, of (A) the payments made by or on behalf of the Companies or their Subsidiaries to Seller and its Affiliates (other than the Companies and their Subsidiaries), net of any payments made by Seller on behalf of the Companies or their Subsidiaries, in each case, other than in connection with an Inter-Company Agreement, during the period from July 1, 2005 through the Closing Date over (B) the amount required to be paid by the Companies or their Subsidiaries to Seller and its Affiliates (other than the Companies and their Subsidiaries) during such period pursuant to the Inter-Company Agreements; provided that all Cash of the Business (other than Restricted Cash) through and including June 30, 2005 shall be paid prior to the Closing Date by the Companies and their Subsidiaries to Seller and its Affiliates (other than the Companies and their Subsidiaries) plus (iii) in the case of any payments made by any Company or any Subsidiary prior to or on the Closing Date in connection with the settlement or resolution the matters listed in Section 7.1(a)(x) and Section 7.1(a)(xi) of the Seller Disclosure Schedule, the amount of such payments less the portion of payments that would have been paid by the Companies and its Subsidiaries pursuant to Section 7.1(a)(x) and Section 7.1(a)(xi) (in accordance with Section 7.1(b) and 7.3(m)) had such matter been settled or resolution happened after the Closing Date. (d) If LTM Adjusted EBITDA is less than LTM Scheduled EBITDA, ...

Closing Consideration Adjustment. (i) If the Final Adjusted Closing Consideration is greater than the Estimated Adjusted Closing Consideration, then within five Business Days of the determination of the Final Closing Statement, Buyer shall pay Sellers an aggregate amount equal to such excess by wire transfer of immediately available funds to an account or accounts designated in writing by Sellers prior to the date when such payment is due. (ii) If the Final Adjusted Closing Consideration is less than the Estimated Adjusted Closing Consideration, then within five Business Days of the determination of the Final Closing Statement, Sellers shall, pro rata based on their respective ownership of the Company Shares, pay or cause to be paid to Buyer an amount equal to such deficiency by wire transfer of immediately available funds to an account or accounts designated in writing by Buyer prior to the date when such payment is due. An example of calculations related to such adjustment is attached hereto as Schedule 1.3 for illustrative purposes only.

Closing Consideration Adjustment. (i) If the Final Closing Consideration is greater than the Estimated Closing Consideration, then (x) within five Business Days of the determination of all of Final Working Capital, Final Indebtedness and Final Transaction Expenses, Buyer shall pay Seller an amount equal to such excess by wire transfer of immediately available funds to an account or accounts designated by Seller prior to the date when such payment is due and (y) the Purchase Price Adjustment Holdback Amount shall be paid to Seller. (ii) If the Final Closing Consideration is less than the Estimated Closing Consideration, then Seller and the Shareholders, jointly and severally shall pay or cause to be paid to Buyer an amount equal to such deficiency. Such payment shall be first made to Buyer by reducing the Purchase Price Adjustment Holdback Amount. If the Purchase Price Adjustment Holdback Amount is less than the payment required under this clause, any deficiency shall be paid by Seller and the Shareholders, on a joint and several basis, within five (5) Business Days following the determination of all of Final Working Capital, Final Indebtedness and Final Transaction Expenses.

Closing Consideration Adjustment. (a) Within sixty (60) days following the Closing Date, the Surviving Corporation shall, and the Buyer shall cause the Surviving Corporation to, prepare and deliver to the Representative a statement setting forth the Surviving Corporation's calculation of the Closing Consideration (including calculations, and reasonably detailed supporting documentation, of (i) the Option Exercise Proceeds, (ii) the Closing Cash, (iii) the Closing Indebtedness, (iv) the Capex Adjustment, and (v) the Transaction Expenses, and, in each case the components thereof) (the "Closing Statement"). The Closing Statement shall be prepared in accordance with the Agreed Accounting Principles and the applicable terms and provisions of this Agreement. (b) During the thirty (30) days immediately following the Representative's receipt of the Closing Statement, the Buyer shall, and shall cause the Surviving Corporation and its Subsidiaries to, provide the Representative and its representatives with reasonable access during normal business hours to the books, records (including work papers), facilities, employees, and independent accountants of the Surviving Corporation and its Subsidiaries to the extent relevant to, and for purposes of, their review of the Closing Statement and the preparation of any Notice of Disagreement. (c) The Closing Statement, and the calculation of the Option Exercise Proceeds, the Closing Cash, the Closing Indebtedness, the Capex Adjustment, the Transaction Expenses, and the Closing Consideration included therein, shall become final and binding upon the parties thirty (30) days following the Representative's receipt thereof, unless the Representative gives written notice of its disagreement with the Closing Statement or the calculation of the Closing Consideration (a "Notice of Disagreement") to the Buyer on or prior to such date. Any Notice of Disagreement shall specify in reasonable detail the nature and amount of any disagreement so asserted and shall set forth the Representative's calculation of such amount, together in each case with reasonably detailed supporting documentation; provided, that the Representative need not provide such reasonable detail, such calculation, or such supporting documentation to the extent that the Surviving Corporation and its Subsidiaries have not provided the Representative with the access required by Section 1.12(b). Any Notice of Disagreement shall only include disagreements that are based on mathematical errors or the Closing Co...

Closing Consideration Adjustment. Within five Business Days after the Final Closing Consideration Amount has been finally determined pursuant to this Section 2.5: (i) if the Final Closing Consideration Amount is less than the Estimated Closing Consideration Amount, the Buyer shall be entitled to receive a payment in cash out of the Adjustment Escrow Account in an amount equal to such difference; provided, that if such amount exceeds the Adjustment Escrow Amount, (A) the Buyer shall be entitled to receive the entire Adjustment Escrow Amount and (B) each Seller shall severally, but not jointly, pay to Hostess Holdings an aggregate amount equal to (I) such Sellers’s Pro-Rata Share, multiplied by (II) the amount of such difference; and (ii) if the Final Closing Consideration Amount is greater than the Estimated Closing Consideration Amount, (A) each Seller shall be entitled receive its Pro-Rata Share of the Adjustment Escrow Amount from the Adjustment Escrow Account and (B) the Buyer shall cause Hostess Holdings to pay to each Seller an amount equal to (I) such Seller’s Pro-Rata Share, multiplied by (II) the amount of such difference.

Closing Consideration Adjustment. (i) If the Final Closing Consideration is greater than the Estimated Closing Consideration, then within five (5) Business Days of the determination of all of Final Working Capital, Final Indebtedness and Final Transaction Expenses, Seller and Buyer shall jointly instruct the Escrow Agent to release the Working Capital Escrow Amount to Seller and Buyer shall pay or cause to be paid to Seller an amount equal to such excess by wire transfer of immediately available funds to an account or accounts designated by Seller prior to the date when such payment is due. (ii) If the Final Closing Consideration is less than the Estimated Closing Consideration, then within five (5) Business Days of the determination of all of Final Working Capital, Final Indebtedness and Final Transaction Expenses, Seller and Buyer shall jointly instruct the Escrow Agent to release from the Working Capital Escrow Amount to Buyer an amount equal to such deficiency by wire transfer of immediately available funds to an account or accounts designated by Buyer prior to the date when such payment is due, and the remaining amount, if any, shall be released to Seller. If the Working Capital Escrow Amount is depleted, Seller shall pay or cause to be paid to Buyer any shortfall by wire transfer of immediately available funds to an account or accounts designated by Buyer prior to the date when such payment is due.

Closing Consideration Adjustment. (i) If the Final Closing Consideration is greater than the Estimated Closing Consideration, then the amount of the next Cash Earnout payment or payments due shall be increased by an amount equal to such excess. (ii) If the Final Closing Consideration is less than the Estimated Closing Consideration, then the amount of the next Cash Earnout payment or payments due shall be decreased by an aggregate amount equal to such deficiency. (iii) Any payments made pursuant to this Section 1.3(f) shall be treated for Tax purposes as an adjustment to the Cash Consideration to the extent permitted by applicable Law.

Closing Consideration Adjustment. (a) The parties have contemplated that the Cash of the Company and its Subsidiaries as of the Closing (the “Closing Cash”), calculated without taking into account any Transaction Fees, will be $250,000 (the “Closing Cash Target”). (b) The Company shall cause to be prepared and, within 10 Business Days prior to the Closing Date, but in no event less than three Business Days prior to the Closing Date, shall cause to be delivered to Parent, a certificate signed by the Chief Financial Officer of the Company attaching a good faith estimate of the Closing Cash, calculated without taking into account any Transaction Fees (the “Estimated Closing Cash”), together with such bank statements and other books and records of the Company as may be reasonably requested by Parent to support such calculation of Estimated Closing Cash. In the event that Parent does not agree with the Estimated Closing Cash, the Company and Parent shall negotiate in good faith to mutually agree on Estimated Closing Cash. If the Estimated Closing Cash is less than the Closing Cash Target, then the Consideration Shares shall be reduced by an amount equal to the quotient of (i) the difference of (A) the Closing Cash Target less (B) the Estimated Closing Cash, divided by (ii) the Closing Date Share Value (such amount shall be the “Closing Adjustment”). In the event the Estimated Closing Cash exceeds the Closing Cash Target, the Closing Adjustment shall be zero. (c) Amounts determined pursuant to this Section 2.14 shall be deemed an adjustment to Closing Consideration.