Common use of Determination of Estimated Purchase Price Clause in Contracts

Determination of Estimated Purchase Price. (a) No later than the tenth (10th) Business Day prior to the anticipated Closing Date (i) Seller shall prepare and deliver to Buyer a written statement setting forth Seller’s best estimate of the amount of the Accrued Depletion Allowances (including reasonable supporting documentation and calculations), as determined as of the most recent available date in accordance with the illustrative calculation thereof set forth on Schedule 3.2(a)(i) (the “Closing Accrued Depletion Allowances Statement”), and (ii) representatives of Seller and Buyer shall take a physical count and inspection of the Inventory, other than the Bailment Inventory of Seller, in accordance with the Inventory inspection and testing procedures attached hereto as Schedule 3.2(a)(ii) (the “Testing Procedures”). Seller and Buyer shall cooperate reasonably in connection with such physical count and inspection. (b) Following such count and inspection, the Parties shall agree in accordance with the Testing Procedures on the results thereof in a written report (the “Agreed Inventory Report”). At the Closing, the Base Purchase Price shall be adjusted as follows: (i) the Base Purchase Price shall be reduced by the amount of the Accrued Depletion Allowances, as set forth in the Closing Accrued Depletion Allowances Statement; (ii) if the Closing Book Value of the Product Inventory as set forth in the Agreed Inventory Report is less than the Target Closing Book Value of the Product Inventory, then the Base Purchase Price shall be reduced by the amount by which the Closing Book Value of the Product Inventory is less than the Target Closing Book Value of the Product Inventory; (iii) if the Closing Book Value of the Product Inventory as set forth in the Agreed Inventory Report is greater than the Target Closing Book Value of the Product Inventory, then the Base Purchase Price shall be increased by the amount by which the Closing Book Value of the Product Inventory is greater than the Target Closing Book Value of the Product Inventory; and (iv) if the Closing Book Value of the Product Inventory as set forth in the Agreed Inventory Report is equal to the Target Closing Book Value of the Product Inventory, then there shall be no adjustment to the Base Purchase Price pursuant to this Section 3.2(b). (c) If the Parties are unable to agree on the results of the physical count and inspection prior to the Closing, then Seller shall deliver its determination of the physical count and inspection to Buyer as soon as reasonably possible following completion of the physical count and

Determination of Estimated Purchase Price. At least three (a3) No later than the tenth (10th) Business Day business days prior to the anticipated Closing Date (i) Date, Seller shall prepare and will deliver to the Buyer a written statement setting forth Seller’s best estimate of the amount of the Accrued Depletion Allowances (including reasonable supporting documentation and calculations), as determined as of the most recent available date in accordance with the illustrative calculation thereof set forth on Schedule 3.2(a)(i) (the “Estimated Closing Accrued Depletion Allowances Statement”), and (ii) representatives containing Seller’s good faith calculation of Seller and Buyer shall take a physical count and inspection of the Inventory, other than the Bailment Inventory of Seller, in accordance with the Inventory inspection and testing procedures attached hereto as Schedule 3.2(a)(ii) (the “Testing Procedures”). Seller and Buyer shall cooperate reasonably in connection with such physical count and inspection. (b) Following such count and inspection, the Parties shall agree in accordance with the Testing Procedures on the results thereof in a written report (the “Agreed Inventory Report”). At the Closing, the Base Purchase Price shall be adjusted as follows: (i) the Base Purchase Price shall be reduced by the amount of the Accrued Depletion Allowancesestimated Net Working Capital, as set forth in of 11:59 p.m., New York time, on the day immediately prior to the Closing Accrued Depletion Allowances Statement; Date (“Estimated Net Working Capital”), (ii) if the estimated Cash of the Company and its Subsidiaries, as of 11:59 p.m., New York time, on the day immediately prior to the Closing Book Value of the Product Inventory as set forth in the Agreed Inventory Report is less than the Target Closing Book Value of the Product InventoryDate (“Estimated Cash”), then the Base Purchase Price shall be reduced by the amount by which the Closing Book Value of the Product Inventory is less than the Target Closing Book Value of the Product Inventory; (iii) if the estimated Indebtedness of the Company and its Subsidiaries, as of 11:59 p.m., New York time, on the day immediately prior to the Closing Book Value of the Product Inventory as set forth in the Agreed Inventory Report is greater than the Target Closing Book Value of the Product InventoryDate (“Estimated Indebtedness”), then the Base Purchase Price shall be increased by the amount by which the Closing Book Value of the Product Inventory is greater than the Target Closing Book Value of the Product Inventory; and (iv) if the Closing Book Value estimated Due Diligence Report Expenses (“Estimated Due Diligence Report Expenses”) and (v) the estimated Seller Transaction Expenses (“Estimated Seller Transaction Expenses”). During the period after the delivery of the Product Inventory as set forth in the Agreed Inventory Report is equal to the Target Estimated Closing Book Value of the Product Inventory, then there shall be no adjustment to the Base Purchase Price pursuant to this Section 3.2(b). (c) If the Parties are unable to agree on the results of the physical count Statement and inspection prior to the ClosingClosing Date, then the Buyer shall have an opportunity to review the Estimated Closing Statement and Seller shall deliver its determination cooperate with the Buyer in good faith to mutually agree upon the Estimated Closing Statement in the event the Buyer disputes any item proposed to be set forth on such statement; provided, however, that if Seller and the Buyer are not able to reach mutual agreement prior to the Closing Date, the Estimated Closing Statement provided by Seller to the Buyer, as modified to include any changes agreed to by Seller and Buyer, shall be binding for purposes of the physical count and inspection to Buyer as soon as reasonably possible following completion of the physical count andthis Section 1.6.

Determination of Estimated Purchase Price. (a) No later than the tenth (10th) Business Day prior to the anticipated Closing Date (i) Seller shall prepare and deliver to Buyer a written statement setting forth Seller’s best estimate of the amount of the Accrued Depletion Allowances (including reasonable supporting documentation and calculations), as determined as of the most recent available date in accordance with the illustrative calculation thereof set forth on Schedule 3.2(a)(i) (the “Closing Accrued Depletion Allowances Statement”), and (ii) representatives of Seller and Buyer shall take a physical count and inspection of the Inventory, other than the Bailment Inventory of Seller, in accordance with the Inventory inspection and testing procedures attached hereto as Schedule 3.2(a)(ii) (the “Testing Procedures”). Seller and Buyer shall cooperate reasonably in connection with such physical count and inspectionthe Testing Procedures. (b) Following such count and inspection, the Parties shall agree in accordance with the Testing Procedures on the results thereof in a written report (the “Agreed Inventory Report”). At the Closing, the Base Purchase Price shall be adjusted as follows: (i) the Base Purchase Price shall be reduced by the amount of the Accrued Depletion Allowances, as set forth in the Closing Accrued Depletion Allowances Statement; (ii) if the Closing Book Value of the Product Inventory as set forth in the Agreed Inventory Report is less than the Target Closing Book Value of the Product Inventory, then the Base Purchase Price shall be reduced by the amount by which the Closing Book Value of the Product Inventory is less than the Target Closing Book Value of the Product Inventory; (iii) if the Closing Book Value of the Product Inventory as set forth in the Agreed Inventory Report is greater than the Target Closing Book Value of the Product Inventory, then the Base Purchase Price shall be increased by the amount by which the Closing Book Value of the Product Inventory is greater than the Target Closing Book Value of the Product Inventory; and (iv) if the Closing Book Value of the Product Inventory as set forth in the Agreed Inventory Report is equal to the Target Closing Book Value of the Product Inventory, then there shall be no adjustment to the Base Purchase Price pursuant to this Section 3.2(b). (c) If the Parties are unable to complete the Testing Procedures or to agree on the results of the physical count and inspection Testing Procedures, in each case, prior to the Closing, then (i) Seller shall deliver its determination best estimate or determination, as applicable, of the physical count and inspection to Buyer as soon as reasonably possible prior to the Closing, but in no event later than two (2) Business Days prior to the Closing Date (the “Estimated Inventory Report”), and (ii) the Parties shall cooperate to complete the Testing Procedures as soon as reasonably possible following completion the Closing, if not completed prior to the Closing. For purposes hereof, the “Estimated Closing Book Value of the physical count andProduct Inventory” means (x) the aggregate value of the Product Inventory (other than the Bailment Inventory), (i) based on the Estimated Inventory Report, and (ii) valued at the applicable Seller Party’s costs of such Inventories by reference to the unit cost set forth on Schedule 1(a), except as the Parties may otherwise mutually agree, plus (y) the aggregate value of the Bailment Inventory as set forth on the Bailment Reports. At the Closing, the Base Purchase Price shall be adjusted as follows:

Determination of Estimated Purchase Price. (a) No later fewer than the tenth (10th) five Business Day Days prior to the anticipated Closing Date (i) Seller Date, Parent shall prepare and deliver deliver, or cause to be delivered, to Buyer a written statement setting statement, substantially in the form of Exhibit F (the “Estimated Closing Statement”) that sets forth SellerParent’s best estimate good-faith estimates of (a) the Closing Date Cash, (b) the Closing Date Indebtedness, (c) the Closing Date Working Capital (and the Negative Working Capital Amount or the Positive Working Capital Amount, as applicable), (d) the Transaction Expenses and (e) the calculation of the amount of Purchase Price based on the Accrued Depletion Allowances foregoing estimates (including reasonable supporting documentation and calculationsthe “Estimated Purchase Price”), as determined as of the most recent available date in each case prepared in accordance with the illustrative calculation thereof applicable definitions set forth on Schedule 3.2(a)(i) (in this Agreement and, to the “Closing Accrued Depletion Allowances Statement”), and (ii) representatives of Seller and Buyer shall take a physical count and inspection of the Inventory, other than the Bailment Inventory of Sellerextent applicable, in accordance with the Inventory inspection and testing procedures attached hereto as Schedule 3.2(a)(ii) (Accounting Rules, together with reasonably detailed supporting documentation used to calculate the “Testing Procedures”). Seller and Buyer shall cooperate reasonably in connection with such physical count and inspectionforegoing amounts. (b) Following such count and inspectionNo fewer than seven Business Days prior to the Closing Date, Parent shall deliver, or cause to be delivered, to Buyer: a preliminary Estimated Closing Statement for information purposes only (which shall not be considered the Parties shall agree Estimated Closing Statement for any purpose hereunder), in each case prepared in accordance with the Testing Procedures on applicable definitions set forth in this Agreement and, to the results thereof extent applicable, in a written report (accordance with the “Agreed Inventory Report”). At Accounting Rules, together with reasonably detailed supporting documentation used to calculate the Closing, the Base Purchase Price shall be adjusted as follows:foregoing amounts. (ic) the Base Purchase Price shall be reduced by the amount In preparation of the Accrued Depletion Allowances, Estimated Closing Statement to be finally delivered as set forth in the immediately preceding sentence, Parent shall consider any good faith, comments provided by Buyer to such preliminary Estimated Closing Accrued Depletion Allowances Statement; (ii) if Statement no fewer than six Business Days prior to the Closing Book Value Date; provided that (i) Buyer shall not have any right to delay or prevent the Closing or the payment of the Product Inventory Estimated Purchase Price as a result of any disagreement with Parent’s estimates set forth in the Agreed Inventory Report is less than Estimated Closing Statement and (ii) Parent shall not be required to accept any comment made by Buyer and Parent shall be entitled to determine the Target Closing Book Value contents of the Product Inventory, then the Base Purchase Price shall be reduced by the amount by which the Estimated Closing Book Value of the Product Inventory is less than the Target Closing Book Value of the Product Inventory; statement in its sole discretion (iii) if the Closing Book Value of the Product Inventory as set forth in the Agreed Inventory Report is greater than the Target Closing Book Value of the Product Inventory, then the Base Purchase Price shall be increased by the amount by which the Closing Book Value of the Product Inventory is greater than the Target Closing Book Value of the Product Inventory; and (iv) if the Closing Book Value of the Product Inventory as set forth in the Agreed Inventory Report is equal to the Target Closing Book Value of the Product Inventory, then there shall be no adjustment to the Base Purchase Price pursuant to this Section 3.2(b). (c) If the Parties are unable to agree on the results of the physical count and inspection prior to the Closing, then Seller shall deliver its it being understood that any such determination of the physical count and inspection to Buyer as soon as reasonably possible following completion contents of the physical count andEstimated Closing Statement by Parent or payment of the Estimated Purchase Price by Buyer shall be without prejudice to the rights of any Party under ‎Section 2.09).

Determination of Estimated Purchase Price. As of the close of business on the fifth (a) No later than the tenth (10th5th) Business Day prior to immediately preceding the anticipated Closing Date (i) Date, Seller shall prepare and will deliver to Buyer Purchaser a written statement (the “Estimated Statement”) setting forth forth: (A) Seller’s best reasonable good faith estimate of (1) the amount current assets of the Accrued Depletion Allowances Company and the Subsidiaries, including cash and cash equivalents, minus (including reasonable supporting documentation and calculations)2) the current liabilities of the Company, as determined in each case, (x) calculated as of the most recent available date Closing Date and after giving effect to the Restructuring and reflecting an accrual for bonuses payable to Continuing Employees for the allocable portion of 2006 fiscal year under Parent’s Annual Incentive Compensation Plan and the Senior Executive MBO Plan and (y) prepared in accordance with the illustrative calculation thereof accounting principles and methodologies employed by Seller in preparing the Balance Sheet and those set forth on Schedule 3.2(a)(i3.1(b) consistently applied (such amount generally, “Working Capital,” and such amount estimated as of the Closing Date, the “Closing Accrued Depletion Allowances StatementEstimated Working Capital”); provided that solely for the purpose of calculating the Estimated Working Capital, cash and (ii) representatives of Seller and Buyer cash equivalents shall take a physical count and inspection be reflected as $1,000,000, irrespective of the Inventory, other than the Bailment Inventory of Seller, in accordance with the Inventory inspection and testing procedures attached hereto as Schedule 3.2(a)(ii) (the “Testing Procedures”). Seller and Buyer shall cooperate reasonably in connection with such physical count and inspection. (b) Following such count and inspection, the Parties shall agree in accordance with the Testing Procedures on the results thereof in a written report (the “Agreed Inventory Report”). At the Closing, the Base Purchase Price shall be adjusted as follows: (i) the Base Purchase Price shall be reduced by the amount of the Accrued Depletion Allowances, as set forth in the actual Closing Accrued Depletion Allowances Statement; (ii) if the Closing Book Value of the Product Inventory as set forth in the Agreed Inventory Report is less than the Target Closing Book Value of the Product Inventory, then the Base Purchase Price shall be reduced by the amount by which the Closing Book Value of the Product Inventory is less than the Target Closing Book Value of the Product Inventory; (iii) if the Closing Book Value of the Product Inventory as set forth in the Agreed Inventory Report is greater than the Target Closing Book Value of the Product Inventory, then the Base Purchase Price shall be increased by the amount by which the Closing Book Value of the Product Inventory is greater than the Target Closing Book Value of the Product InventoryDate estimate thereof; and (ivB) if the calculation of the Estimated Purchase Price (as defined below). The Estimated Statement shall be signed by Seller’s Chief Financial Officer and accompanied by reasonable supporting documentation. Purchaser shall have the right to review the Estimated Statement and such supporting documentation or data of Seller and the Company as Purchaser may reasonably request. In the event that Purchaser does not agree with Seller’s estimate, Seller and Purchaser shall negotiate in good faith to mutually agree on an acceptable estimate of the Estimated Working Capital, and Seller shall consider in good faith any proposed comments or changes that Purchaser may reasonably suggest; provided, however, that Seller’s failure to include in the Estimated Statement any changes proposed by Purchaser, or the acceptance by Purchaser of the Estimated Statement, shall not limit or otherwise affect Purchaser’s remedies under this Agreement, including Purchaser’s right to include such changes or other changes in the Closing Book Value Date Statement, or constitute an acknowledgment by Purchaser of the Product Inventory as set forth in the Agreed Inventory Report is equal to the Target Closing Book Value accuracy of the Product Inventory, then there shall be no adjustment to the Base Purchase Price pursuant to this Section 3.2(b)Estimated Statement. (c) If the Parties are unable to agree on the results of the physical count and inspection prior to the Closing, then Seller shall deliver its determination of the physical count and inspection to Buyer as soon as reasonably possible following completion of the physical count and

Determination of Estimated Purchase Price. (a) No earlier than five (5) and no later than the tenth three (10th3) Business Day prior Days before the Closing Date, Seller shall deliver to the anticipated Closing Date Purchaser (i) Seller shall prepare and deliver to Buyer a written statement that is certified by Seller’s Chief Financial Officer setting forth (A) Seller’s best good faith calculation and estimate of the aggregate amount of the Accrued Depletion Allowances (including reasonable supporting documentation Estimated Purchase Price and calculations), as determined as each of the most recent available date in accordance with Estimated Purchase Price Elements (B) Seller’s good faith calculation and estimate of the illustrative calculation thereof set forth on Schedule 3.2(a)(i) Closing Balance Sheet (the such statement, “Estimated Closing Accrued Depletion Allowances Statement”), ) and (ii) representatives reasonable supporting detail of Seller and Buyer shall take a physical count and inspection each of the Inventorycalculations set forth in the Estimated Closing Statement. The Estimated Closing Statement shall be prepared in a manner consistent with the terms of (including the definitions contained in) this Agreement, other than including Exhibit H attached to this Agreement with respect to Estimated Inventory Cost and Estimated Net Working Capital. Seller shall, and shall cause each member of the Bailment Inventory Seller Group to, provide Purchaser and its Representatives and advisors reasonable access to the books, Contracts, properties, personnel, Representatives (including Seller’s advisors and independent accountants and their work papers) and records of Sellerthe Seller Group and such Representatives of the Seller Group relevant to Purchaser’s review of the Estimated Closing Statement. Seller shall review any comments proposed by Purchaser with respect to the Estimated Closing Statement and will consider, in accordance with good faith, any appropriate changes thereto prior to the Inventory inspection and testing procedures attached hereto as Schedule 3.2(a)(ii) (the “Testing Procedures”). Seller and Buyer shall cooperate reasonably in connection with such physical count and inspectionClosing. (b) Following such count and inspection, the Parties shall agree in accordance with the Testing Procedures on the results thereof in a written report (the “Agreed Inventory Report”). At the Closing, the Base Purchase Price shall be adjusted as follows: (i) the Base Purchase Price shall be reduced by the amount of the Accrued Depletion Allowances, as set forth in On the Closing Accrued Depletion Allowances Statement; Date, Purchaser shall deliver to Seller (iifor its own account and as agent for any other Selling Entity) if the Closing Book Value of the Product Inventory as set forth an amount in the Agreed Inventory Report is less than the Target Closing Book Value of the Product Inventory, then the Base Purchase Price shall be reduced by the amount by which the Closing Book Value of the Product Inventory is less than the Target Closing Book Value of the Product Inventory; (iii) if the Closing Book Value of the Product Inventory as set forth in the Agreed Inventory Report is greater than the Target Closing Book Value of the Product Inventory, then the Base Purchase Price shall be increased by the amount by which the Closing Book Value of the Product Inventory is greater than the Target Closing Book Value of the Product Inventory; and (iv) if the Closing Book Value of the Product Inventory as set forth in the Agreed Inventory Report is cash equal to the Target Closing Book Value of the Product Inventory, then there Estimated Purchase Price. Such amount shall be no adjustment payable in United States dollars in immediately available funds to the Base Purchase Price pursuant to this Section 3.2(b). such bank account or accounts as shall be designated in writing by Seller not less than three (c3) If the Parties are unable to agree on the results of the physical count and inspection Business Days prior to the Closing, then Seller shall deliver its determination of the physical count and inspection to Buyer as soon as reasonably possible following completion of the physical count and.

Determination of Estimated Purchase Price. Attached hereto as Exhibit A is an estimated combined balance sheet of the Acquired Companies as of the Closing Date prepared by the Sellers’ Representative (the “Estimated Closing Balance Sheet”), together with a written statement prepared by the Sellers’ Representative (the “Estimated Closing Statement”) which sets forth the Sellers’ Representative’s good faith estimate of the following: (a) No later than Closing Cash, (b) Closing Indebtedness, (c) Closing Working Capital and the tenth Working Capital Surplus or Working Capital Deficiency, as the case may be, (10thd) Business Day prior Transaction Expenses, including the Persons to which such Transaction Expenses are owed and the anticipated amounts owed to each, and (e) the Purchase Price, calculated as provided in Section 1.02 as if the Sellers’ Representative’s estimates of Closing Date Cash, Closing Indebtedness, Closing Working Capital, the Working Capital Surplus or Working Capital Deficiency (as the case may be) and Transaction Expenses set forth in the Estimated Closing Statement were the actual amounts thereof (the “Estimated Purchase Price”). The Sellers’ Representative has prepared the Estimated Closing Balance Sheet, the Estimated Closing Statement and the Sellers’ Representative’s estimate of Closing Working Capital with good faith effort to be in accordance with (i) Seller shall prepare the Agreed Accounting Principles applied using the same accounting methods, practices, principles, policies and deliver to Buyer a written statement setting forth Seller’s best estimate procedures (with consistent classifications, judgments and valuation and estimation methodologies) that were used in the preparation of the amount of the Accrued Depletion Allowances (including reasonable supporting documentation and calculations)Balance Sheet, as determined if such Estimated Closing Balance Sheet and Estimated Closing Statement were being prepared and audited as of the most recent available date in accordance with the illustrative calculation thereof set forth on Schedule 3.2(a)(i) (the “Closing Accrued Depletion Allowances Statement”)a fiscal year end, and (ii) representatives of Seller and Buyer shall take a physical count and inspection of the Inventory, other than the Bailment Inventory of Seller, in accordance with the Inventory inspection and testing procedures attached hereto as Schedule 3.2(a)(ii) (the “Testing Procedures”). Seller and Buyer shall cooperate reasonably in connection with such physical count and inspection. (b) Following such count and inspection, the Parties shall agree in accordance with the Testing Procedures on the results thereof in a written report (the “Agreed Inventory Report”). At the Closing, the Base Purchase Price shall be adjusted as follows: (i) the Base Purchase Price shall be reduced by the amount of the Accrued Depletion Allowances, as applicable definitions set forth in the Closing Accrued Depletion Allowances Statement; (ii) if the Closing Book Value and other applicable provisions of this Agreement. The Sellers’ Representative’s calculations of the Product Inventory as set forth in items on the Agreed Inventory Report is less than Estimated Closing Statement do not take into account the Target Closing Book Value transactions contemplated by this Agreement or any purchase price accounting or other similar adjustment resulting from the consummation of the Product Inventory, then the Base Purchase Price shall be reduced transactions contemplated by the amount by which the Closing Book Value of the Product Inventory is less than the Target Closing Book Value of the Product Inventory; (iii) if the Closing Book Value of the Product Inventory as set forth in the Agreed Inventory Report is greater than the Target Closing Book Value of the Product Inventory, then the Base Purchase Price shall be increased by the amount by which the Closing Book Value of the Product Inventory is greater than the Target Closing Book Value of the Product Inventory; and (iv) if the Closing Book Value of the Product Inventory as set forth in the Agreed Inventory Report is equal to the Target Closing Book Value of the Product Inventory, then there shall be no adjustment to the Base Purchase Price pursuant to this Section 3.2(b)Agreement. (c) If the Parties are unable to agree on the results of the physical count and inspection prior to the Closing, then Seller shall deliver its determination of the physical count and inspection to Buyer as soon as reasonably possible following completion of the physical count and