Merger Consideration Adjustment. (a) Following the Closing, the Merger Consideration shall be finally determined in accordance with the adjustments and procedures set forth in this Agreement.
(b) Within five (5) Business Days after the final determination of the Final Closing Cash, the Final Closing Indebtedness, the Final Transaction Expenses, the Final Working Capital, and the resulting Merger Consideration pursuant to Section 2.10, the following payments shall be made, as applicable:
(i) If the Merger Consideration is greater than the Estimated Merger Consideration (such excess, the “Adjustment Excess Amount”), then:
(A) Purchaser shall deposit, or cause to be deposited, with the Paying Agent the Adjustment Excess Amount, pursuant to the Paying Agent Agreement, for further payment to the Equityholders in accordance with their respective Pro Rata Share; and
(B) Purchaser and the Equityholder Representative shall jointly instruct the Escrow Agent to deposit with the Paying Agent the Escrow Amount, pursuant to the Paying Agent Agreement, for further payment to the Equityholders in accordance with their respective Pro Rata Share.
(ii) If the Merger Consideration is equal to the Estimated Merger Consideration, then Purchaser and the Equityholder Representative shall jointly instruct the Escrow Agent to deposit with the Paying Agent the Escrow Amount, pursuant to the Paying Agent Agreement, for further payment to the Equityholders in accordance with their respective Pro Rata Share.
(iii) If the Merger Consideration is less than the Estimated Merger Consideration (such difference, expressed as a positive number the “Adjustment Shortfall Amount”), then Purchaser and the Equityholder Representative shall:
(A) in the event the Adjustment Shortfall Amount is less than the Escrow Amount, jointly instruct the Escrow Agent to (1) release to Purchaser from the Escrow Account an amount equal to the Adjustment Shortfall Amount; and (2) deposit with the Paying Agent the remaining amounts of the Escrow Account (after payment of such Adjustment Shortfall Amount from the Escrow Account to Purchaser), pursuant to the Paying Agent Agreement, for further payment to the Equityholders in accordance with their respective Pro Rata Share; or
(B) in the event the Adjustment Shortfall Amount is equal to or greater than the Escrow Amount, (1) jointly instruct the Escrow Agent to release to Purchaser from the Escrow Account an amount equal to the Escrow Amount and (2) the Equityholders, severally and not jointly, shal...
Merger Consideration Adjustment. (a) No later than one (1) Business Day prior to the Closing, the Company shall deliver to the Acquiror a certificate, executed by the Chief Financial Officer of the Company, setting forth (A) (1) a reasonable, good faith estimate of the Net Debt and unpaid Company Transaction Expenses as of the start of business on the Closing Date, (2) a reasonable, good faith estimate of Closing Working Capital (“Estimated Closing Working Capital”), and (3) a reasonable good faith estimate of the Company’s Stub Taxes, together with such documents and information necessary to verify the amount of Net Debt, Company Transaction Expenses, Estimated Closing Working Capital and the estimate of the Company’s Stub Taxes (the Company shall provide Acquiror with reasonable access to all documents and personnel necessary for reviewing the amounts set forth in the certificate), (B) a schedule setting forth how the Net Merger Consideration will be distributed, including wire instructions in the case of payments to be made at Closing by wire transfer, and (C) the cash statements and the associated reconciliations upon which the estimated Net Debt as of the start of business on the Closing Date was determined. The good faith estimate of the Net Merger Consideration as of the start of business on the Closing Date shall be referred to as the “Closing Estimate.” All such calculations shall be prepared by the Company in accordance with GAAP applied using the same accounting methods, principles, practices and policies that were used in the preparation of the Financial Statements.
(b) The Net Merger Consideration will be (i) increased on a dollar-for-dollar basis by the amount by which the Working Capital as of the open of business on the Closing Date (the “Closing Working Capital”) is greater than Target Working Capital, or (ii) decreased on a dollar-for-dollar basis by the amount by which the Closing Working Capital is less than Target Working Capital.
(c) The final amounts of Company Transaction Expenses, Net Debt, and Closing Working Capital shall each be determined from a consolidated balance sheet (the “Closing Balance Sheet”) of the Company and its Subsidiaries as of the open of business on the Closing Date. The Closing Balance Sheet shall be prepared in accordance with GAAP (which for purposes hereof shall be deemed not to apply to the calculation of Taxes nor to require the inclusion of footnotes) applied using the same accounting methods, principles, practices and policies that wer...
Merger Consideration Adjustment. Notwithstanding anything in this Agreement to the contrary, if, from the date of this Agreement until the Effective Time, the outstanding Shares shall have been changed into a different number of shares or a different class by reason of any reclassification, stock split (including a reverse stock split), recapitalization, split-up, combination, exchange of shares, readjustment or other similar transaction, or a stock dividend or stock distribution thereon shall be declared with a record date within said period, the Merger Consideration shall be appropriately adjusted to provide the holders of Shares the same economic effect as contemplated by this Agreement prior to such event; provided that no such adjustment shall result in any increase or decrease of the Aggregate Merger Consideration.
Merger Consideration Adjustment. The Company, Parent and the Participating Holders agree to treat each indemnification payment pursuant to this Article VI as an adjustment to the Merger Consideration for all Tax purposes and shall take no position contrary thereto unless required to do so by applicable Tax Law pursuant to a determination as defined in Section 1313(a) of the Code.
Merger Consideration Adjustment. (a) Within forty five (45) days after the Closing Date, the Purchaser’s Chief Financial Officer (the “CFO”) shall deliver to the Purchaser Representative and the Seller Representative a statement (the “Closing Statement”) setting forth (i) a consolidated balance sheet of the Target Companies as of the Reference Time and (ii) a good faith calculation of the Net Debt as of the Reference Time, and the resulting Merger Consideration. The Closing Statement shall be prepared, and the Net Debt and the resulting Merger Consideration and Stockholder Merger Consideration shall be determined in accordance with the Accounting Principles and otherwise in accordance with this Agreement.
(b) After delivery of the Closing Statement, each of the Seller Representative and the Purchaser Representative, and their respective Representatives on their behalves, shall be permitted reasonable access to the books, records, working papers, files, facilities and personnel of the Target Companies relating to the preparation of the Closing Statement. The Seller Representative and the Purchaser Representative, and their respective Representatives on their behalves, may make inquiries of the CFO and related Purchaser and Target Company personnel and advisors regarding questions concerning or disagreements with the Closing Statement arising in the course of their review thereof, and Purchaser and the Company shall provide reasonable cooperation in connection therewith. If either the Seller Representative or the Purchaser Representative (each, a “Representative Party”) has any objections to the Closing Statement, such Representative Party shall deliver to the CFO and the other Representative Party a statement setting forth its objections thereto (in reasonable detail) (an “Objection Statement”). If an Objection Statement is not delivered by a Representative Party within thirty (30) days following the date of delivery of the Closing Statement, then such Representative Party will have waived its right to contest the Closing Statement, all determinations and calculations set forth therein, and the resulting Merger Consideration set forth therein. If an Objection Statement is delivered within such thirty (30) day period, then the Seller Representative and the Purchaser Representative shall negotiate in good faith to resolve any such objections for a period of twenty (20) days thereafter. If the Seller Representative and the Purchaser Representative do not reach a final resolution within such t...
Merger Consideration Adjustment. Notwithstanding anything in this Agreement to the contrary, if, from the date of this Agreement until the Effective Time, the number of outstanding Shares shall have been changed into a different number of shares or a different class (including by reason of any reclassification, stock split (including a reverse stock split), recapitalization, split-up, combination, exchange of shares, readjustment or other similar transaction, or if a stock dividend or stock distribution thereon shall be declared with a record date and payment date within such period), the Merger Consideration shall be equitably adjusted to reflect such change so as to provide Parent and the holders of Shares the same economic effect as contemplated by this Agreement prior to such event; provided, that nothing in this Section 2.01(b) shall be deemed to permit or authorize the Company to effect any such change that it is not authorized or permitted to undertake pursuant to this Agreement.
Merger Consideration Adjustment. The Company, Buyer, the Surviving Corporation, the Stockholder Representative and the Stockholders agree to treat each indemnification payment pursuant to this Section 10 as an adjustment to the Merger Consideration for all Tax purposes and shall take no position contrary thereto unless required to do so by applicable Tax Law pursuant to a determination as defined in Section 1313(a) of the Code.
Merger Consideration Adjustment. The Parties agree that any indemnification payment made pursuant to this Agreement shall be treated as an adjustment to the Merger Consideration for Tax purposes, unless otherwise required by Law.
Merger Consideration Adjustment. Notwithstanding anything in this Agreement to the contrary, if, during the period from the date of this Agreement until the Effective Time, the number of outstanding Shares shall have been changed into a different number of Shares or a different class by reason of any reclassification, stock split (including a reverse stock split), recapitalization, split-up, combination, exchange of shares, readjustment or other similar transaction, or a stock dividend or stock distribution thereon shall be declared with a record date within said period, the Offer Price and the Merger Consideration shall be appropriately adjusted to provide the holders of Shares the same economic effect as contemplated by this Agreement prior to such event; provided, that nothing in this Section 2.01(b) shall be deemed to permit or authorize the Company to effect any such change that it is not authorized or permitted to undertake pursuant to this Agreement.
Merger Consideration Adjustment. (a) At least three (3) Business Days prior to the Closing Date (provided, however, with respect to the delivery in clause (vi) of this Section 2.10(a), at least ten (10) days prior to the Closing Date, the Company shall deliver the supporting statement including preliminary estimates of the applicable amounts referred to in clause (vi) below which shall be updated on such third Business Day), the Company shall deliver to Parent a statement (the “Estimated Closing Statement”) that shall set forth a calculation of good faith estimates of (or include) (i) the estimated amount of the Closing Working Capital (the “Estimated Working Capital Amount”), (ii) the estimated amount of Closing Indebtedness (the “Estimated Closing Indebtedness”), (iii) the estimated amount of Closing Cash (the “Estimated Closing Cash”) (including the most recent bank statements (or electronic statement) on which the good faith estimate of the Estimated Closing Cash was based), (iv) the estimated amount of Transaction Expenses (the “Estimated Transaction Expenses”), (v) the estimated amount of the Closing Net Tax Asset Position (including a supporting statement in the form of Schedule 1 reflecting the amounts therein as of the Adjustment Time) (the “Estimated Closing Net Tax Asset Position”) and (vi) the estimated amount of the Closing Transaction Tax Benefit Amount (including a supporting statement in the form of Schedule 4 and including confirmation in writing by a “Big Four” national accounting firm that each of the Transaction Tax Deductions are deductible for applicable income Tax purposes at a “more likely than not” level of comfort (which, for the avoidance of doubt, shall not require the delivery of a formal opinion letter)) (the “Estimated Closing Transaction Tax Benefit Amount”), and its calculation of the Aggregate Estimated Consideration. If, following receipt of the Estimated Closing Statement and the Incentive Share Payment Schedule, Parent disagrees with any portion of the Estimated Closing Statement or the Incentive Share Payment Schedule, Parent and the Company shall cooperate in good faith to resolve Parent’s disagreements and the Estimated Closing Statement and the Incentive Share Payment Schedule shall be updated for any items resolved by Parent and the Company. If Parent and the Company fail to resolve any of Parent’s disagreements prior to the date by which the Closing is to occur as contemplated by Section 2.2(a), the Estimated Closing Statement and the Incentive S...
