Merger Consideration Adjustments. (a) At least two (2) Business Days prior to the Closing Date, the Company shall prepare (or cause to be prepared), issue and deliver to Parent its good faith estimate of: (i) balance sheet of the Company setting forth the assets and liabilities of the Company as of the Effective Time (the “Estimated Closing Balance Sheet”), and (ii) the Net Working Capital (the “Estimated Net Working Capital”). Parent and its Representatives shall have the right to review and copy the computations and work papers (including accountants’ work papers) and the Company’s underlying books and records used in connection with the Company’s computation and preparation of its proposed drafts of the Estimated Closing Balance Sheet and the Estimated Net Working Capital. If Parent disputes the Estimated Closing Balance Sheet (or any portion thereof) or the Estimated Net Working Capital prior to the Closing, then Parent and the Company will negotiate in good faith to resolve any such dispute at or prior to Closing, but the resolution of any such dispute is not a condition to Closing. Each of the Estimated Closing Balance Sheet and the Estimated Net Working Capital shall be prepared in accordance with the methodology and the accounting principles set forth in Exhibit D (the “Merger Consideration Adjustment Methodology”). In the event the Estimated Net Working Capital (i) exceeds the Net Working Capital Target, then the Closing Merger Consideration shall be increased, dollar for dollar, by the amount that the Estimated Net Working Capital exceeds the Net Working Capital Target; or (ii) is less than the Net Working Capital Target, then the Closing Merger Consideration shall be decreased, dollar for dollar, by the amount that the Net Working Capital Target exceeds the Estimated Net Working Capital (with such adjustment amount under (i) and (ii) of the preceding sentence immediately above being the “Working Capital Adjustment Amount”).
(b) As promptly as practicable, but in no event later than sixty (60) days following the Closing Date, Parent shall, in good faith, prepare (or cause to be prepared), issue and deliver to the Shareholder Representative its proposed: (i) balance sheet of the Company setting forth the assets and liabilities of the Company as of the Effective Time (as finalized in accordance with Section 2.6(d), the “Closing Balance Sheet”), (ii) statement of the calculation of the Net Working Capital (as finalized in accordance with Section 2.6(d), the “Net Working Capital Stat...
Merger Consideration Adjustments. Except for any interest amount(s) paid thereon, any amounts distributed to Parent pursuant to the provisions of this Section 1.12 shall be deemed to be and treated for all purposes as adjustments to the Merger Consideration.
Merger Consideration Adjustments. (i) The Merger Consideration shall be increased or decreased by an amount equal to the difference between (x) Consumers' Net Statutory Surplus (as defined below) at the end of the month preceding the Effective Date and (y) $6,710,623. For purposes of this Agreement, Consumers' Net Statutory Surplus shall mean (x) the total statutory capital and surplus of Consumers Life Insurance Company ("CLI"), as reported in statutory statements reported to state regulatory authorities, plus (y) the asset valuation reserve and interest maintenance reserve of CLI and each of its subsidiaries. In computing any Merger Consideration adjustments, the effects on total capital and surplus of any transactions which are not in the ordinary course of business, including (x) any effects from the sale of assets contemplated by this Agreement and (y) the effects of severance costs up to $300,000, shall be excluded.
(ii) In the event the business of Interstate Auto Auction, Inc. ("Interstate") is sold prior to the Effective Date, the Merger Consideration shall be increased or decreased by (A) an amount equal to the difference between (x) the net sales proceeds (after Federal and state income taxes) received from the sale of Interstate and (y) $4,900,000, less applicable Federal and state taxes and (B) an amount equal to the difference between (x) the Non-operating net assets (defined as all Non-operating assets less liabilities except the existing bank indebtedness) of Interstate at the end of the month preceding the date on which Interstate is sold and (y) $899,440. Non-operating net assets, as used herein, shall not be reduced by any principal payments made after June 30, 1996 pursuant to the PNC Bank Loan Agreement. In the event Interstate is not sold prior to the Effective Date, the Merger Consideration shall be decreased by $4,378,000.
(iii) In the event Consumers' universal life business is sold prior to the Effective Date, the Merger Consideration shall be increased or decreased by an amount equal to the difference between the purchase commission (after applicable Federal income taxes) received by Consumers from the sale of its universal life business and $1,269,000.
Merger Consideration Adjustments. Ernst & Young, LLP shall within seventy-five (75) days of the Closing Date conduct an audit of the Company and the Partnership to ensure that the Company and the Partnership have collected accounts receivable and paid accounts payable in the ordinary course of business during the ninety (90) day period prior to the Closing Date. In the event that the audit reveals that the Company and/or the Partnership have (a) collected accounts receivable at an accelerated rate during such period, or (b) paid accounts payable at a reduced or delayed rate during such period, Vision 21 shall seek an adjustment to the Merger Consideration. In the event that the proposed adjustment materially impacts the goodwill which may be created by the transaction, the proposed adjustment shall take into account the related impact upon net income created by the change in amortization of such goodwill. Vision 21 shall notify the Physician in writing within seventy-five (75) days of the Closing Date of its decision to seek an adjustment of the Merger Consideration, the amount of the proposed adjustment and its reasons for such decision. If Physician does not notify Vision 21 within ten (10) days of Physician's receipt of such notice that Physician objects to the proposed adjustment, then the proposed adjustment shall take place and shall be final. If Physician notifies Vision 21 within the above-described ten (10) day period that Physician objects to the proposed adjustment, then Vision 21 and Physician shall in good faith negotiate an appropriate amount of the adjustment, if any, which should be made. During all time periods following Vision 21's notice that it intends to adjust the Merger Consideration until the adjustment is finalized, Vision 21 shall provide to Physician and his accountants full access to all relevant books, records and work papers utilized in preparing the proposed Merger Consideration adjustment. The adjustment may be settled in cash (which shall be set-off from moneys due New P.A. pursuant to the Business Management Agreement) or Vision 21 Common Stock at the Physician's option.
Merger Consideration Adjustments. (a) The Merger Consideration shall be subject to adjustment to the extent that Current Assets (as defined herein) or Current Liabilities Assumed (as defined herein) materially differ from the amounts customarily arising in the ordinary course of business of the Company as of November 30, 1996. The term "Current Assets" shall mean pettx xxxh, Accounts Receivable, prepaid expenses, Inventory, supplies and other current assets (excluding cash in banks, certificates of deposit, other cash equivalents, current portion of capital leases and prepaid Income Taxes). The term "Current Liabilities Assumed" shall mean the audited balances as of November 30, 1996 of trade accounts payable, accrued payroll, accrued payroll taxes, accrued benefits, and other current liabilities (excluding notes payable, current portion of capital leases and long-term debt and income and franchise taxes). The adjustment shall be settled in cash or Vision 21 Common Stock at Vision 21's option. The parties also agree that to the extent the adjustments materially impact the goodwill created by the transaction, there shall be an adjustment for the related impact upon net income created by the change in amortization of such goodwill and the Merger Consideration shall be increased or reduced to reflect the impact on net income, settled in cash or Vision 21 Common Stock at Vision 21's option.
Merger Consideration Adjustments. Amounts paid to or on behalf of Buyer or the Representative (on behalf of the Stockholders and Optionholders) as indemnification shall be treated as adjustments to the Merger Consideration.
Merger Consideration Adjustments. Except for any interest amount(s) paid thereon (which interest, together with all dividends on Indemnification Escrow Shares, shall be paid to (i) Parent with respect to any portion of the Indemnification Escrow Amount distributed to Parent and (ii) the Unitholders with respect to any portion of the Indemnification Escrow Amount distributed to the Unitholders), any amounts distributed to Parent pursuant to the provisions of this Section 1.10 shall be deemed to be and treated for all purposes as adjustments to the Merger Consideration.
Merger Consideration Adjustments. If, prior to the Effective Date, shares of Glacier Common Stock shall be changed into a different number of shares or a different class of shares by reason of any reclassification, recapitalization, split-up, combination, exchange of shares or readjustment, or there occurs a distribution of warrants or rights with respect to Glacier Common Stock, or a stock dividend, stock split or other general distribution of Glacier Common Stock is declared with a record date prior to the Effective Date, then in any such event the Exchange Ratio shall be appropriately adjusted.
Merger Consideration Adjustments. If, after the determinations made pursuant to Section 8.6(b) have become final and binding (the “Final Merger Consideration Determination”), whether as a result of the failure of the Shareholders Representative to deliver the Recalculation Response Notice, mutual agreement of the parties, decision of the internationally recognized accounting firm, or otherwise:
(i) the amount of Merger Cash to which the Shareholders are entitled, as initially calculated pursuant to Section 2.6(a) and Section 2.6(b), is equal to the amount of Merger Cash to which the Shareholders are entitled, as set forth in the Final Merger Consideration Determination, then no adjustment to the Merger Consideration shall be made;
(ii) the amount of Merger Cash to which the Shareholders are entitled, as initially calculated pursuant to Section 2.6(a) and Section 2.6(b), is less than the amount of Merger Cash to which the Shareholders are entitled, as set forth in the Final Merger Consideration Determination, then Autobytel shall pay to the Shareholders Representative (for the benefit of the Shareholders) the difference, plus all or a portion of the cash received by the Surviving Corporation concurrently with the Closing from the repayment of Shareholder Notes (not to exceed, in the aggregate, $110,000), to the extent, but only to the extent, that it was not necessary to include such cash in Audited Working Capital or Audited Cash for Target to have Audited Working Capital of at least $200,000 and Audited Cash of at least $100,000. The Shareholders Representative shall distribute to each Shareholder such Shareholder’s Pro Rata Share of any amounts received from Autobytel pursuant to this Section 8.6(c)(ii).
(iii) the amount of Merger Cash to which the Shareholders are entitled, as initially calculated pursuant to Section 2.6(a) and Section 2.6(b), is greater than the amount of Merger Cash to which the Shareholders are entitled, as set forth in the Final Merger Consideration Determination, then each Shareholder shall deliver to Autobytel in cash such Shareholder’s Pro Rata Share of the remaining shortfall.
Merger Consideration Adjustments. Any amounts payable under this ARTICLE 9 will be treated by the Parties as an adjustment to the Merger Consideration, unless otherwise required by Law.
