Common use of Determination of Purchase Price Adjustment Clause in Contracts

Determination of Purchase Price Adjustment. (a) Promptly after the Closing Date, and in any event not later than sixty (60) days following the Closing Date, the Surviving Corporation shall prepare and deliver to the Stockholders’ Representative (i) a consolidated balance sheet of the Company as of the Closing Date (the “Closing Balance Sheet”), (ii) a statement (the “Closing Working Capital Statement”) setting forth the Working Capital of the Company as of the close of business on the Closing Date (the “Closing Working Capital”), which shall include a calculation of the difference (positive or negative) between the Estimated Working Capital and the Closing Working Capital and (iii) as statement (the “Closing Cash Statement”) setting forth the Cash of the Company as of the close of business on the Closing Date, which shall include a calculation of the difference (positive or negative) between the Estimated Cash and the Closing Cash. The Closing Balance Sheet, the Closing Working Capital Statement and the Closing Cash Statement shall each be prepared in accordance with GAAP and in a manner consistent with the preparation of the Closing Statement (including the calculation of Estimated Working Capital and Estimated Cash). Upon delivery of such statements by the Surviving Corporation, the Surviving Corporation shall provide the Stockholders’ Representative and its representatives with prompt and reasonable access to the books and records of the Surviving Corporation, Merger Sub and the Company, as the case may be, in order to allow the Stockholders’ Representative and its representatives to verify the accuracy of the determination by the Surviving Corporation of the Closing Working Capital and Closing Cash. On or after the Closing Date, Parent and the Company may conduct a physical count of the Inventory of the Company and its Subsidiaries (the “Inventory Count”) as of the Closing Date. Each of the parties shall have the right to have representatives or advisers (including accountants) observe the procedures conducted during any Inventory Count. If Parent determines to conduct such Inventory Count, the parties shall cooperate in good faith to identify and agree upon the amount of any Inventory that is Damaged Inventory as of the date of the Inventory Count. In such case, the agreed upon amount of Damaged Inventory as of the date of the Inventory Count shall be conclusively deemed to be excluded Inventory as of the Closing Date for purposes of determining the Purchase Price Adjustment and the Closing Working Capital and preparing the Closing Balance Sheet and Closing Working Capital Statement. Any dispute with respect to the amount of Damaged Inventory as of the date of the Inventory Count shall be resolved pursuant to the procedures described in paragraphs (b) and (c) of this Section 2.8.

Determination of Purchase Price Adjustment. (ai) Promptly after the First Closing Date, and in any event not later than sixty forty-five (6045) days following the First Closing Date, the Surviving Corporation Buyer Parent shall either (A) confirm its agreement with the Estimated Closing Statement, in which case the Estimated Closing Statement shall be deemed final and binding, and the Initial First Closing Purchase Price shall be deemed to be the Final First Closing Purchase Price for all purposes hereunder or (B) prepare and deliver to the Stockholders’ Representative (i) a consolidated balance sheet of the Company as of the Closing Date (the “Closing Balance Sheet”), (ii) Seller Parent a statement (the “First Closing Working Capital Statement”) consisting of (1) a schedule setting forth forth, in reasonable detail, the Working Capital aggregate amount of CapEx made by the Company as Seller Parent and its Affiliates during the period from the date of this Agreement through (and including) the close of business on the Closing Date (the “Closing Working Capital”), which shall include a calculation of the difference (positive or negative) between the Estimated Working Capital and the Closing Working Capital and (iii) as statement (the “Closing Cash Statement”) setting forth the Cash of the Company as of the close of business on the First Closing Date, which amount shall include a calculation of the difference (positive or negative) between the Estimated Cash and the Closing Cash. The Closing Balance Sheet, the Closing Working Capital Statement and the Closing Cash Statement shall each be prepared in accordance with GAAP and calculated in a manner consistent with the preparation calculation methodologies and principles used by the Seller Parent to prepare the CapEx Schedule and (2) the Buyer Parent’s good faith calculations (the “Buyer Parent’s Proposed Calculations”) of (y) the amount of the CapEx Adjustment and (z) a calculation of the Final First Closing Purchase Price. In the event that the Buyer Parent does not deliver to the Seller Parent the confirmation set forth in the foregoing clause (A) or the First Closing Statement set forth in the foregoing clause (including B) within thirty (30) days following the calculation of First Closing Date, the Estimated Working Capital Closing Statement shall be deemed final and Estimated Cash)binding and the Initial First Closing Purchase Price shall be deemed to be the Final First Closing Purchase Price for all purposes hereunder. Upon delivery of such statements by the Surviving CorporationFirst Closing Statement, the Surviving Corporation Buyer Parent shall provide the Stockholders’ Representative Seller Parent and its representatives Representatives with prompt reasonable access, during normal business hours, to the SSD Business’s accounting and reasonable access other personnel and to the books and records of the Surviving Corporation, Merger Sub and the CompanyBusiness, as the case may be, and any other document or information reasonably requested by the Seller Parent, and necessary in order to allow the Stockholders’ Representative Seller Parent and its representatives Representatives to verify the accuracy of the determination by First Closing Statement, including the Surviving Corporation of the Closing Working Capital and Closing Cash. On or after the Closing Date, Parent and the Company may conduct a physical count of the Inventory of the Company and its Subsidiaries (the “Inventory Count”) as of the Closing Date. Each of the parties shall have the right to have representatives or advisers (including accountants) observe the procedures conducted during any Inventory Count. If Parent determines to conduct such Inventory Count, the parties shall cooperate in good faith to identify and agree upon the amount of any Inventory that is Damaged Inventory as of the date of the Inventory Count. In such case, the agreed upon amount of Damaged Inventory as of the date of the Inventory Count shall be conclusively deemed to be excluded Inventory as of the Closing Date for purposes of determining the Purchase Price Adjustment and the Closing Working Capital and preparing the Closing Balance Sheet and Closing Working Capital Statement. Any dispute with respect to the amount of Damaged Inventory as of the date of the Inventory Count shall be resolved pursuant to the procedures described in paragraphs (b) and (c) of this Section 2.8Buyer Parent’s Proposed Calculations.

Determination of Purchase Price Adjustment. (a) Promptly after the Closing Date, and in any event not later than sixty ninety (6090) days following the Closing Date, Purchaser shall cause the Surviving Corporation shall Company to prepare and deliver to the Stockholders’ Representative (i) a consolidated balance sheet of the Company as of the Closing Date (the “Closing Balance Sheet”), (ii) Seller a statement (the “Closing Working Capital Statement”) setting forth Purchaser’s good faith calculations of (i) the amount of the Closing Indebtedness, (ii) the amount of the Closing Cash, (iii) the amount of the Company Transaction Expenses, (iv) the amount of the Closing Working Capital, (v) the amount of the Working Capital of the Company as of the close of business on the Closing Date Adjustment and (the “Closing Working Capital”), which shall include vi) a calculation of the difference (positive or negative) between Final Purchase Price based on the Estimated Working Capital and amounts set forth in the Closing Working Capital and (iii) as statement (the “Closing Cash Statement”) setting forth the Cash of the Company as of the close of business on the Closing Date, which shall include a calculation of the difference (positive or negative) between the Estimated Cash and the Closing Cash. The Closing Balance Sheet, the Closing Working Capital Statement and each of the Closing Cash Statement components set forth thereon shall each be prepared in accordance with GAAP the terms of this Agreement and in a manner consistent with the preparation Specified Accounting Principles, as applicable. Upon delivery of the Closing Statement (including by Purchaser, Purchaser shall cause the calculation of Estimated Working Capital and Estimated Cash). Upon delivery of such statements by the Surviving Corporation, the Surviving Corporation shall Company to provide the Stockholders’ Representative Seller and its representatives Representatives with prompt reasonable access, during normal business hours and with reasonable access advance notice, to the Company’s accounting and other personnel and to the books and records of the Surviving Corporation, Merger Sub and the Company, as the case may be, and any other documents or information (subject to the execution of customary access letters) reasonably requested by Seller and necessary in order to allow the Stockholders’ Representative Seller and its representatives Representatives to verify the accuracy of the determination by Closing Statement. Notwithstanding anything herein to the Surviving Corporation contrary and for the avoidance of doubt and for the purpose of avoiding double counting, any amount that would otherwise be deemed a Company Transaction Expense shall not constitute a Company Transaction Expense to the extent paid at or prior to the Closing, unless such Company Transaction Expense was paid with an amount that constitutes Closing Working Capital and Cash which is included in Closing Cash. On or after the Closing Date, Parent and the Company may conduct a physical count of the Inventory of the Company and its Subsidiaries (the “Inventory Count”) as of the Closing Date. Each of the parties shall have the right to have representatives or advisers (including accountants) observe the procedures conducted during any Inventory Count. If Parent determines to conduct such Inventory Count, the parties shall cooperate in good faith to identify and agree upon the amount of any Inventory that is Damaged Inventory as of the date of the Inventory Count. In such case, the agreed upon amount of Damaged Inventory as of the date of the Inventory Count shall be conclusively deemed to be excluded Inventory as of the Closing Date Cash for purposes of determining the Final Purchase Price Adjustment and the Closing Working Capital and preparing the Closing Balance Sheet and Closing Working Capital Statement. Any dispute with respect to the amount of Damaged Inventory as of the date of the Inventory Count shall be resolved pursuant to the procedures described in paragraphs (b) and (c) of this Section 2.8Price.

Determination of Purchase Price Adjustment. (a) Promptly after the Closing Date, and in any event not later than sixty ninety (6090) days following the Closing Date, Purchaser shall prepare or shall cause the Surviving Corporation shall Company to prepare and deliver to the Stockholders’ Representative Seller (i) a an unaudited consolidated balance sheet of the Company as of 11:59 P.M. on the Business Day immediately prior to the Closing Date (the “Closing Balance Sheet”), and (ii) a statement (the “Closing Working Capital Statement”) setting forth Purchaser’s good faith calculations of (A) the amount of the Closing Indebtedness, (B) the amount of the Closing Cash, (C) the amount of the Company Transaction Expenses, (D) the amount of Closing Working Capital, (E) the amount of the Working Capital Adjustment, (F) the amount of the Company as of the close of business on the Closing Date Target Working Capital and (the “Closing Working Capital”), which shall include G) a calculation of the difference (positive or negative) between Final Purchase Price based on the Estimated Working Capital and amounts set forth in the Closing Working Capital and (iii) as statement Statement. For purposes of preparing the Closing Statement, Purchaser shall make a physical count of the Inventory (the “Closing Cash StatementInventory Count”) setting forth and determine the Cash of actual Inventory Value less the Company Inventory Adjustment, in each case, calculated as of the close of business 11:59 P.M. on the Closing Date, which shall include a calculation of the difference (positive or negative) between the Estimated Cash and Business Day immediately preceding the Closing CashDate in accordance with Annex C. Seller and its accountants (and other representatives) shall have the right to be physically present during, participate in and monitor the Inventory Count. The Closing Balance Sheet, the Closing Working Capital Statement and the Closing Cash Statement shall each be prepared in accordance with GAAP and in a manner consistent with the policies and principles used by Seller in connection with the preparation of the Audited Financial Statements, consistently applied and Annex C. Upon delivery of the Closing Statement (including by Purchaser, Purchaser shall cause the calculation of Estimated Working Capital and Estimated Cash). Upon delivery of such statements by the Surviving Corporation, the Surviving Corporation shall Company to provide the Stockholders’ Representative Seller and its representatives Representatives with prompt reasonable access, during normal business hours, to the Company’s accounting and reasonable access other personnel and to the books and records of the Surviving Corporation, Merger Sub and the Company, as the case may be, in order and any other document or information reasonably requested by Seller necessary to allow the Stockholders’ Representative Seller and its representatives Representatives to verify the accuracy of the determination by the Surviving Corporation of the Closing Working Capital and Closing Cash. On or after the Closing Date, Parent and the Company may conduct a physical count of the Inventory of the Company and its Subsidiaries (the “Inventory Count”) as of the Closing Date. Each of the parties shall have the right to have representatives or advisers (including accountants) observe the procedures conducted during any Inventory Count. If Parent determines to conduct such Inventory Count, the parties shall cooperate in good faith to identify and agree upon the amount of any Inventory that is Damaged Inventory as of the date of the Inventory Count. In such case, the agreed upon amount of Damaged Inventory as of the date of the Inventory Count shall be conclusively deemed to be excluded Inventory as of the Closing Date for purposes of determining the Purchase Price Adjustment and the Closing Working Capital and preparing the Closing Balance Sheet and Closing Working Capital Statement. Any dispute with respect to the amount of Damaged Inventory as of the date of the Inventory Count shall be resolved pursuant to the procedures described in paragraphs (b) and (c) of this Section 2.8.