Capital Adjustments (a) The existence of the Option shall not affect in any way the right or power of the Corporation or its stockholders to make or authorize any or all adjustments, recapitalizations, reorganizations, or other changes in the Corporation's capital structure or the Corporation’s business, or any merger or consolidation of the Corporation or any issue of bonds, debentures, preferred stock having a preference to or affecting the Corporation’s capital stock or the rights thereof, or the issuance of any securities convertible into any such capital stock or of any rights, options, or warrants to purchase any such capital stock, or the dissolution or liquidation of the Corporation, any sale or transfer of all or any part of the Corporation’s assets or business, or any other act or proceeding of the Corporation, whether of a similar character or otherwise.
(b) The securities with respect to which the Option is granted are shares of the $.001 par value common stock of the Corporation as presently constituted, but if and whenever, prior to the delivery by the Corporation of all the shares of the $.001 par value common stock with respect to which the Option is granted, the Corporation shall effect a subdivision or consolidation of shares or other capital readjustment, the payment of a stock dividend, or other increase or reduction of the number of shares of such common stock issued and outstanding without receiving compensation therefore in money, services, or property, the number of shares of such common stock then remaining subject to the Option shall (a) in the event of an increase in the number of outstanding shares of such common stock, be proportionately increased, and the cash consideration payable per share of such common stock shall be proportionately reduced; and (b) in the event of a reduction in the number of outstanding shares of such common stock, be proportionately reduced, and the cash consideration payable per share of such common stock shall be proportionately increased.
True-Up Adjustments From time to time, until the Retirement of the Recovery Bonds, the Servicer shall identify the need for True-Up Adjustments and shall take all reasonable action to obtain and implement such True-Up Adjustments, all in accordance with the following:
Tax Adjustments The Company may make such reductions in the Purchase Price, in addition to those required by Sections 3, 4, 5, 6, 7 and 8, as the Board of Directors considers to be advisable to avoid or diminish any income tax to holders of Common Stock or rights to purchase Common Stock resulting from any dividend or distribution of stock (or rights to acquire stock) or from any event treated as such for income tax purposes.
Section 754 Adjustments To the extent an adjustment to the adjusted tax basis of any Company asset, pursuant to Code Section 734(b) or Code Section 743(b) is required, pursuant to Regulations Section 1.704-1(b)(2)(iv)(m)(2) or 1.704-1(b)(2)(iv)(m)(4), to be taken into account in determining Capital Accounts as the result of a distribution to a Unit Holder in complete liquidation of such Unit Holder’s interest in the Company, the amount of such adjustment to Capital Accounts shall be treated as an item of gain (if the adjustment increases the basis of the asset) or loss (if the adjustment decreases such basis) and such gain or loss shall be specially allocated to the Unit Holders in accordance with their interests in the Company in the event Regulations Section 1.704-1(b)(2)(iv)(m)(2) applies, or to the Unit Holder to whom such distribution was made in the event Regulations Section 1.704-1(b)(2)(iv)(m)(4) applies.
Stock Adjustments In the event that during the term of the pledge any stock dividend, reclassification, readjustment or other changes are declared or made in the capital structure of Pledgee, all new, substituted and additional shares or other securities issued by reason of any such change shall be delivered to and held by the Pledgee under the terms of this Security Agreement in the same manner as the Shares originally pledged hereunder. In the event of substitution of such securities, Pledgor, Pledgee and Pledgeholder shall cooperate and execute such documents as are reasonable so as to provide for the substitution of such Collateral and, upon such substitution, references to "Shares" in this Security Agreement shall include the substituted shares of capital stock of Pledgor as a result thereof.
Closing Adjustments (a) At least five (5) Business Days prior to the Closing Date, Vista Outdoor shall prepare and deliver to Parent a statement (the “Estimated Closing Statement”) setting forth Vista Outdoor’s good faith estimate of (i) Closing Cash (such estimate, “Estimated Closing Cash”), (ii) Closing Working Capital (such estimate, “Estimated Closing Working Capital”), (iii) Closing Debt (such estimate, “Estimated Closing Debt”), (iv) Transaction Expenses (such estimate, “Estimated Transaction Expenses”), (v) Closing Taxes (such estimate, “Estimated Closing Taxes”), (vi) Closing Transaction Tax Deductions (such estimate, “Estimated Closing Transaction Tax Deductions”), (vii) the Closing Non-Cash Debt (such estimate, “Estimated Closing Non-Cash Debt”) and (viii) the Estimated Closing Adjustment Amount, in each case, together with reasonably detailed schedules with respect to the determination thereof to support the estimates set forth in the Estimated Closing Statement. The Estimated Closing Statement shall be prepared in accordance with the terms of this Agreement, including the Accounting Principles. The Parties agree that the purpose of preparing the Estimated Closing Statement is to estimate the amounts of Closing Cash, Closing Working Capital, Closing Debt, Transaction Expenses, Closing Taxes, Closing Transaction Tax Deductions and the Closing Adjustment Amount in accordance with the terms of this Agreement, including the Accounting Principles. Vista Outdoor shall consider in good faith and implement all reasonable comments provided by Parent to the Estimated Closing Statement (including the components thereof) at least one Business Day prior to the Closing Date.
(b) At least five (5) Business Days prior to Vista Outdoor’s delivery of the Estimated Closing Statement, and in any event at least ten (10) Business Days prior to the Closing Date, Vista Outdoor shall prepare and deliver to Parent a good faith non-binding, advisory draft of the Estimated Closing Statement (the “Draft Estimated Closing Statement”), including reasonably detailed schedules with respect to the determination thereof to support the estimates set forth therein. In furtherance of Vista Outdoor’s preparation of the Estimated Closing Statement, Vista Outdoor shall consider in good faith all reasonable comments provided to the Draft Estimated Closing Statement by Parent at least one Business Day prior to delivery of the Estimated Closing Statement.
(c) Within ten (10) Business Days of the date of this Agreement, Vista Outdoor shall prepare and deliver to Parent a good faith non-binding, advisory draft of the Estimated Closing Statement, including reasonably detailed schedules with respect to the determination thereof to support the estimates set forth therein (an “Advisory Estimated Closing Statement”), assuming, for purposes of creating such Advisory Estimated Closing Statement, a Reference Time of 11:59 p.m. New York City time on September 30, 2024. Within ten (10) Business Days following October 31, 2024, Vista Outdoor shall prepare and deliver to Parent, an Advisory Estimated Closing Statement assuming, for purposes of creating such Advisory Estimated Closing Statement, a Reference Time of 11:59 p.m. New York City time on October 31, 2024. In furtherance of Vista Outdoor’s preparation of the Draft Estimated Closing Statement and the Estimated Closing Statement, Vista Outdoor shall consider in good faith all reasonable comments provided to the Advisory Estimated Closing Statements by Parent at least one (1) Business Day prior to delivery of the Draft Estimated Closing Statement.
(d) As promptly as practicable, and in any event within the later of (x) thirty (30) days following the Closing Date and (y) five (5) Business Days prior to the consummation of the Revelyst Merger (if such merger is consummated) (the later of (x) and (y), the “Closing Statement Deadline”), Vista Outdoor and Revelyst shall cooperate in good faith and jointly prepare a statement (the “Closing Statement”) setting forth their joint good faith calculation of (i) Closing Cash, (ii) Closing Working Capital, (iii) Closing Debt, (iv) Transaction Expenses, (v) Closing Taxes, (vi) Closing Transaction Tax Deductions and (vii) the Closing Adjustment Amount, in each case, together with reasonably detailed schedules with respect to the determination thereof to support the calculations set forth in the Closing Statement. The Closing Statement shall be prepared in accordance with the terms of this Agreement, including the Accounting Principles. The Parties agree that the purpose of preparing the Closing Statement is to measure and determine the amount of Closing Cash, Closing Working Capital, Closing Debt, Transaction Expenses, Closing Taxes, Closing Transaction Tax Deductions and the Closing Adjustment Amount in accordance with the terms of this Agreement, including the Accounting Principles. Each of Vista Outdoor and Revelyst shall execute the Closing Statement to certify the calculations set forth therein and upon such certification the Closing Statement shall become final and binding upon the Parties; provided, that, notwithstanding anything to the contrary in this Agreement, in the event that Vista Outdoor and Revelyst do not agree upon and execute the Closing Statement by the Closing Statement Deadline, then the Estimated Closing Statement shall be deemed to be the Closing Statement for all purposes under this Agreement and neither Party nor their respective Affiliates shall have any further obligation pursuant to this Section 2.06.
(e) In connection with the preparation of the Closing Statement, Vista Outdoor shall, subject to reasonable advance written request (email being sufficient), provide Revelyst and its Representatives with reasonable access during normal business hours, and in such a manner as to not interfere with the normal operations of Vista Outdoor and each other member of the Vista Outdoor Group, to the Records and relevant advisors (subject to the execution of any required customary access letters), personnel and properties of Vista Outdoor and each other member of the Vista Outdoor Group to the extent reasonably relevant to the preparation of the Closing Statement; provided that Revelyst shall, and shall cause its Representatives to, keep any nonpublic information shared with it confidential.
(f) Within three (3) Business Days after the Closing Statement becomes final and binding upon the Parties in accordance with this Section 2.06, if the Closing Adjustment Amount is:
(i) greater than the Estimated Closing Adjustment Amount, then Vista Outdoor shall pay Revelyst an amount of cash equal to such difference;
(ii) less than the Estimated Closing Adjustment Amount, then Revelyst shall pay Vista Outdoor an amount of cash equal to such difference; or
(iii) equal to the Estimated Closing Adjustment Amount, then neither Party shall have any obligation to make a payment to the other Party in respect thereof.
(g) Each Party acknowledges that the agreements contained in this Section 2.06 are an integral part of the Transactions, and that, without these agreements, the other Party would not have entered into this Agreement and each other Transaction Document to which it is a party. Accordingly, if a Party fails to promptly pay any amount due pursuant to this Section 2.06 (such Party, the “Defaulting Party”), and, in order to obtain payment of such amount, the other Party commences a legal action which results in an order against the Defaulting Party for such amount, or any portion thereof, the Defaulting Party shall pay to the other Party such other Party’s out-of-pocket, reasonable and documented costs and expenses (including attorneys’ fees) incurred in connection with such legal action, together with interest on such due and unpaid amounts pursuant to this Section 2.06 at a rate equal to (i) the prime rate as published in The Wall Street Journal in effect on the date such amount was required to be paid plus (ii) 2% through the date such payment was actually received.
(h) Vista Outdoor agrees that, from the Closing Date through the date that the Closing Adjustment Amount is finally determined in accordance with this Section 2.06, it shall not, and shall cause each other member of the Vista Outdoor Group not to, take any action with respect to any accounting books, records, policies or procedures on which the Closing Statement is based that would impede or delay the final determination of the Closing Adjustment Amount.
(i) Notwithstanding anything to the contrary in this Agreement or any investigation or examination conducted, or any knowledge possessed or acquired, by or on behalf of Vista Outdoor or Revelyst, the process set forth in this Section 2.06 shall be the sole and exclusive remedy between the Parties for any disputes related to the items required to be included or reflected in the calculation of Closing Cash, Closing Working Capital, Closing Debt, Transaction Expenses, Closing Taxes, Closing Transaction Tax Deductions and the Closing Adjustment Amount.
(j) Without the prior written consent of Xxxxxx Xxxxxx, none of the time periods set forth in this Section 2.06 shall be extended or waived by any Party. For the avoidance of doubt, from and after the closing of the Revelyst Merger, neither Olibre Parent, Revelyst nor any of their respective Subsidiaries shall have any obligation with respect to this Section 2.06. Each Party agrees that Olibre Parent is a third party beneficiary of this Section 2.06(j).
(k) For the purposes of this Agreement:
Post-Closing Adjustments As soon as practicable after the Closing, but in no event later than one hundred eighty (180) days thereafter, Seller shall prepare and deliver to Purchaser a final settlement statement (the “Final Settlement Statement”) setting forth each adjustment or payment that was not finally determined as of the Closing and showing the calculation of such adjustments and the resulting Final Purchase Price. Seller shall make its workpapers and other information available to Purchaser to review in order to confirm the adjustments shown on Seller’s draft. As soon as practicable after receipt of the Final Settlement Statement, but in no event later than sixty (60) days thereafter, Purchaser shall deliver to Seller a written report containing any changes that Purchaser proposes to make to the Final Settlement Statement. Any failure by Purchaser to deliver to Seller the written report detailing Purchaser’s proposed changes to the Final Settlement Statement within sixty (60) days following Purchaser’s receipt of the Final Settlement Statement shall be deemed an acceptance by Purchaser of the Final Settlement Statement as submitted by Seller. The parties shall agree with respect to the changes proposed by Purchaser, if any, no later than sixty (60) days after Seller receives from Purchaser the written report described above containing Purchaser’s proposed changes. If the Purchaser and the Seller cannot then agree upon the Final Settlement Statement, the determination of the amount of the Final Settlement Statement shall be submitted to a mutually agreed firm of independent public accountants (the “Accounting Firm”). The determination by the Accounting Firm shall be conclusive and binding on the parties hereto and shall be enforceable against any party hereto in any court of competent jurisdiction. Any costs and expenses incurred by the Accounting Firm pursuant to this Section 12.1 shall be borne by the Seller and the Purchaser equally. The date upon which such agreement is reached or upon which the Final Purchase Price is established, shall be herein called the “Final Settlement Date.” In the event
(a) the Final Purchase Price is more than the Estimated Final Purchase Price, Purchaser shall pay to Seller the amount of such difference, or
(b) the Final Purchase Price is less than the Estimated Final Purchase Price, Seller shall pay to Purchaser the amount of such difference, in either event by wire transfer in immediately available funds. Payment by Purchaser or Seller, as the case may be, shall be within five (5) days of the Final Settlement Date.
Royalty Adjustments The following adjustments shall be made, on a Licensed Product-by-Licensed Product and country-by-country basis, to the royalties payable pursuant to this Section 5.5:
Section 754 Adjustment To the extent an adjustment to the adjusted tax basis of any Partnership asset pursuant to Code Section 734(b) or Code Section 743(b) is required, pursuant to Regulations Section 1.704-1(b)(2)(iv)(m)(2) or Regulations Section 1.704-1(b)(2)(iv)(m)(4), to be taken into account in determining Capital Accounts as the result of a distribution to a Holder in complete liquidation of his interest in the Partnership, the amount of such adjustment to the Capital Accounts shall be treated as an item of gain (if the adjustment increases the basis of the asset) or loss (if the adjustment decreases such basis) and such gain or loss shall be specially allocated to the Holders in accordance with their interests in the Partnership in the event that Regulations Section 1.704-1(b)(2)(iv)(m)(2) applies, or to the Holders to whom such distribution was made in the event that Regulations Section 1.704-1(b)(2)(iv)(m)(4) applies.
Working Capital Adjustment (a) The Company will, in good faith and in consultation with HSE, prepare and deliver to HSE within three (3) days before the Closing Date (i) a calculation of the Closing Indebtedness Pay-Off Amount (the “Estimated Closing Indebtedness Pay-Off Amount”), (ii) a calculation of the Closing Cash Amount (the “Estimated Closing Cash Amount”), and (iii) a calculation of the amount of Unpaid Transaction Costs (the “Estimated Unpaid Transaction Costs Amount”), (collectively, the items in clauses (i)—(iii) are referred to as the “Estimated Pre-Closing Adjustments”). The calculation of the Estimated Pre-Closing Adjustments will be prepared by the Company in accordance with the definitions set forth in this Agreement. If HSE disputes any portion of the Estimated Pre-Closing Adjustments prior to Closing, then HSE and the Company will negotiate in good faith in an effort to resolve any such dispute at or prior to Closing.
(b) No later than ninety (90) days following the Closing, HSE shall cause to be prepared (i) a statement of the Net Working Capital of the Company as of the Calculation Date (the “Net Working Capital Closing Statement”) and (ii) a calculation of the Closing Indebtedness Pay-Off Amount, the Closing Cash Amount and the Unpaid Transaction Costs prepared in accordance with the definitions set forth in this Agreement (the “Final Cost Adjustments”). The Net Working Capital Closing Statement shall contain line item detail comparable to the balance sheet included in the most recent Financial Statements with respect to the components of the Net Working Capital of the Company as of the Calculation Date. The Representative, on behalf of Transferor, shall have a period of thirty (30) days following its receipt of the Net Working Capital Closing Statement, the Final Cost Adjustments and related worksheets to provide written notice of the Representative’s objection, on behalf of Transferor, to the Net Working Capital Closing Statement, the Final Cost Adjustments or the related worksheets (which notice shall state the basis for the Representative’s objection). If, within such thirty (30) day period, the Representative, on behalf of Transferor, has not given HSE written notice of its objection to the Net Working Capital Closing Statement, the Final Cost Adjustments or the related worksheets, then the Net Working Capital and the Final Cost Adjustments respectively reflected therein shall be binding and conclusive on the Parties and used in making the adjustment provided for in Section 2.2(c). If the Representative, on behalf of Transferor, timely provides any such objection, Transferor and HSE shall work in good faith to resolve any differences with respect thereto. If, at the end of a fifteen (15)-day period from the date of delivery of any objection by the Representative, on behalf of Transferor, there are any matters that remain in dispute, then the remaining matters in dispute shall be submitted to Xxxx & Associates (the “Referee”) within the following five (5) Business Days for resolution. The Referee shall make a determination with respect to the disputed matters submitted to it and determine the Net Working Capital of the Company and the Final Cost Adjustments as of the Calculation Date within 30 days after the objections that remain in dispute are submitted to it. If any objections are submitted to the Referee for resolution, (i) each Party shall furnish to the Referee such work papers and other documents and information relating to such objections as the Referee may request and are available to that Party (or its independent public accountants) and will be afforded the opportunity to present to the Referee any material relating to the determination of the matters in dispute and to discuss such determination with the Referee; (ii) the determination by the Referee of the Net Working Capital of the Company and the Final Cost Adjustments as of the Calculation Date, as set forth in a written notice delivered to each of the Representative, on behalf of Transferor, and HSE by the Referee, shall be calculated in accordance with the past practices utilized in preparing the most recent Financial Statements, and shall be binding and conclusive on the Parties and, absent manifest error, shall constitute an arbitral award that is final, binding and unappealable and upon which a judgment may be entered by a court having jurisdiction thereof; and (iii) the fees and expenses of the Referee shall be borne one-half by Transferor and one-half by HSE. The final Net Working Capital of the Company as of the Calculation Date, as determined in accordance with this Section 2.2(b), is referred to as the “Final Net Working Capital.”
(c) If the Final Net Working Capital is less than zero, Transferor shall promptly pay to HSE an aggregate amount in cash equal to such deficiency. If the Final Net Working Capital is greater than zero, HSE shall pay to Transferor on a dollar-for-dollar basis the amount of such excess in cash; provided, however, such payment by HSE shall not be due and payable to Transferor until the thirtieth (30th) day following the date that HSE has collected an aggregate amount of Accounts Receivable in excess of the aggregate current liabilities included in the calculation of Final Net Working Capital. In the event the sum of (i) the Closing Cash Amount minus (ii) the Closing Indebtedness Pay-Off Amount minus (iii) the Unpaid Transaction Costs set forth in the calculation of the Final Cost Adjustments is less than such sum set forth in the calculation of the Estimated Pre-Closing Adjustments, Transferor shall promptly pay the amount of such deficiency to HSE in cash. In the event such sum set forth in the calculation of the Final Cost Adjustments is greater than the sum set forth in the calculation of the Estimated Pre-Closing Adjustments, HSE shall promptly pay to Transferor the amount of such excess in cash.
