Price Adjustments 17.1 Prices for Goods/Services supplied in terms of this Agreement shall be subject to review as indicated in the Schedule of Requirements/Works Order annexed hereto. 17.2 No less than 2 [two] months prior to any proposed Price adjustment, the Parties shall commence negotiations for Prices for the next period or as otherwise indicated in Schedule 1 hereto. The Parties shall have regard for market-related pricing of equivalent goods, continuous improvement initiatives, costs [including labour, raw materials and transport/delivery], order size and frequency and changes to the specification of the Goods/Services. 17.3 Pursuant to clause 17.2 above, the Supplier/Service Provider shall keep full and accurate records of all costs associated with the supply of the Goods/Services to Transnet, in a form to be approved in writing by Transnet. The Supplier/Service Provider shall produce such records to Transnet for inspection at all reasonable times on request and such records may, at Transnet's option, be audited by Transnet or its designated representatives. 17.4 Should Transnet and the Supplier/Service Provider fail to reach an agreement on Price for the successive period, either Party shall be entitled to submit this matter to dispute resolution in accordance with clause 32 of the Master Agreement [Dispute Resolution]. 17.5 If during the period of this Agreement Transnet can purchase similar Goods/Services of a like quality from another supplier at a total delivered cost to a Transnet facility that is lower than the total delivered cost of the Goods/Services purchased hereunder from the Supplier/Service Provider, Transnet may notify the Supplier/Service Provider of such total delivered cost and the Supplier/Service Provider shall have an opportunity to adjust the Price of the Goods/Services purchased hereunder, on such a basis as to result in the same total delivered cost to Transnet, within 30 [thirty] calendar days of such notice. If the Supplier/Service Provider fails to do so or cannot legally do so, Transnet may (i) purchase the Goods/Services from such other supplier in which case the obligations, including, but not limited to, any purchase and sale requirements and/or commitments, if any, of Transnet and the Supplier/Service Provider hereunder shall be reduced accordingly; (ii) terminate this Agreement without any penalty, liability or further obligation; or (iii) continue purchases under this Agreement. 17.6 If during the period of this Agreement the Supplier/Service Provider sells any materials which are the same as, equivalent to, or substantially similar to the Goods/Services herein, at a total delivered cost to a third party lower than the total delivered cost to a Transnet facility, then the Supplier/Service Provider has an opportunity to adjust its Price for the Goods/Services purchased hereunder within 30 [thirty] calendar days so that the Price is the same or lower than the total delivered cost of such third party. If the Supplier/Service Provider fails to do so or cannot legally do so, Transnet may (i) purchase the Goods/Services from any other such supplier, in which case the obligations, including, but not limited to, any purchase and sale requirements and/or commitments, if any, of Transnet and the Supplier/Service Provider hereunder shall be reduced accordingly; or
Purchase Price Adjustments (a) By not later than the end of the fourth business day prior to the Closing Date, Seller shall deliver to Purchasers a statement (the "Pre-Closing Statement") setting forth the Fully Diluted Shares, the IP Purchase Price and Seller's good faith estimates of Net Working Capital ("Estimated Net Working Capital"), Cash on Hand ("Estimated Cash on Hand"), Indebtedness ("Estimated Indebtedness") and Transaction Expenses ("Estimated Transaction Expenses") and the resulting calculation of the Estimated Purchase Price, and a schedule (the “Option Consideration Schedule”) setting forth for each Optionholder the number of shares of common stock of the Company subject to vested Options held by such Optionholder immediately prior to the Closing and the dollar amount of such Optionholder's Optionholder Payment Amount and the Option Consideration. The Pre-Closing Statement shall be prepared in accordance with the definitions set forth in this Agreement, including the definition of Net Working Capital, and, where applicable, the Applicable Accounting Principles. Seller shall give Purchasers and their accountants’ reasonable access to review the books, records and work papers (subject to the execution of customary work paper access letters if requested) of the Company Entities used in the preparation of the Pre-Closing Statement. Purchasers and their accountants may make inquiries of Seller and the Company Entities and their accountants regarding the Pre-Closing Statement and Seller and the Company shall, and shall cause the other Company Entities to, use their reasonable best efforts to cause their respective employees and accountants to reasonably cooperate with, and respond to, such inquiries. Seller shall consider in good faith any comments to the Pre-Closing Statement made by Purchasers in good faith in writing and delivered to Seller not later than the end of the second business day prior to the Closing Date. If Estimated Net Working Capital set forth in the Pre-Closing Statement is greater than $13,000,000, then the Estimated Purchase Price, the Optionholder Payment Amounts and the Option Consideration shall be calculated as if Estimated Net Working Capital was equal to $13,000,000. (b) Within 90 days after the Closing Date, Purchaser1 will deliver to Seller a statement setting forth Purchasers' good faith calculation of Net Working Capital, Cash on Hand, Indebtedness and Transaction Expenses and the resulting Final Purchase Price (the "Preliminary Closing Statement"). The Preliminary Closing Statement shall be prepared in accordance with the definitions set forth in this Agreement, including the definition of Net Working Capital, and, where applicable, the Applicable Accounting Principles. After delivery of the Preliminary Closing Statement, Purchasers shall give Seller and its accountants reasonable access to review the books, records and work papers (subject to the execution of customary work paper access letters if requested) of the Company Entities, Purchasers (solely to the extent used in the preparation of the Preliminary Closing Statement) and their accountants used in the preparation of the Preliminary Closing Statement. Seller and its accountants may make inquiries of the Company Entities, Purchasers (solely to the extent related to the preparation of the Preliminary Closing Statement) and their accountants regarding the Preliminary Closing Statement and Purchasers and the Company shall, and shall cause the other Company Entities to, use their reasonable best efforts to cause their respective employees and accountants to reasonably cooperate with, and respond to, such inquiries. If Seller has any objections to the Preliminary Closing Statement, Seller shall deliver to Purchaser1 a statement setting forth such objections, including setting forth in reasonable detail based on the information that has been made available to Seller by Purchasers pursuant to Seller’s request the particulars of each objection (including for each component of the calculations objected to, the amount of Seller's calculation of such component and reasons for the difference) (an "Objections Statement") within 45 days after Seller's receipt of the Preliminary Closing Statement. Any items contained in the Preliminary Closing Statement not objected to in the Objections Statement will be deemed to have been accepted by Seller. If an Objections Statement is not delivered to Purchaser1 within 45 days after Seller's receipt of the Preliminary Closing Statement, the Preliminary Closing Statement shall be final, binding and non-appealable by the parties hereto. If an Objections Statement is delivered to Purchaser1 within 45 days after Seller's receipt of the Preliminary Closing Statement, Seller and Purchaser1 shall negotiate in good faith to resolve the objections set forth in the Objections Statement and if they do not reach a final resolution of all such objections within 30 days after Seller's delivery of the Objections Statement to Purchaser1, Seller and Purchaser1 shall submit any objections for which final resolution between Seller and Purchaser1 has not been reached in writing ("Disputed Items") to Xxxxx Xxxxxxxx or such other dispute resolution firm mutually acceptable to Seller and Purchaser1 (the "Dispute Resolution Firm"). The Dispute Resolution Firm's determination will be based solely on the definitions of Net Working Capital, Cash on Hand, Indebtedness and Transaction Expenses set forth in this Agreement, including, where applicable, the definition of Applicable Accounting Principles, and the written submissions of Seller and Purchaser1 (i.e., not on the basis of an independent review or investigation). Purchaser1 and Seller shall promptly provide their written submissions regarding the Disputed Items in writing to the Dispute Resolution Firm and to each other. The Dispute Resolution Firm shall be instructed to render its determination with respect to the Disputed Items as soon as reasonably possible (which the parties agree should not be later than 45 days following the date on which the disagreement is referred to the Dispute Resolution Firm), and to send copies of such written determination to Purchaser1 and Seller. No hearing shall be held and no discovery shall be permitted. No party shall engage, directly or indirectly, in ex parte communications with the Dispute Resolution Firm. The Dispute Resolution Firm shall not assign a value to any Disputed Item greater than the greatest value for such item submitted by either party to the Dispute Resolution Firm or less than the smallest value for such item submitted by either party to the Dispute Resolution Firm. The Dispute Resolution Firm may not award the parties in the aggregate more than the amount in dispute. The decision of the Dispute Resolution Firm with respect to all Disputed Items shall be final, binding and non-appealable on the parties hereto. The costs and expenses of the Dispute Resolution Firm shall be paid by Seller, on the one hand, and Purchasers, on the other hand, based upon the percentage which the portion of the Disputed Items not awarded to each party bears to the aggregate amount of Disputed Items. For example, if Seller submits an Objections Statement for $1,000, and if Purchaser1 disputes only $500 of the amount claimed by Seller which the parties cannot mutually resolve, and if the Dispute Resolution Firm ultimately resolves the Disputed Items by awarding Seller $300 of the $500 of Disputed Items, then the costs and expenses of the Dispute Resolution Firm will be paid 60% (i.e. 300/500) by Purchasers and 40% (i.e., 200/500) by Seller.