Common use of Closing Balance Sheet; Purchase Price Adjustment Clause in Contracts

Closing Balance Sheet; Purchase Price Adjustment. (a) Following that date on which Target has received proxies representing in excess of 50% of its voting securities, directing that the relevant holders shares of Target be voted in favor of approving this Agreement, and the transactions contemplated hereby, Target shall certify to Acquiror that it has received such proxies and they are currently effective. Thereafter Target and Acquiror shall agree on a date, and such date shall be designated the "Closing Balance Sheet Date." The Closing Balance Sheet Date shall be either the last day of the month preceding the month in which the requisite number of proxies are received (the "Proxy Month") or the last day of the Proxy Month. The Closing Balance Sheet Date shall be the last day of the month preceding the Proxy Month if the Closing Balance Sheet can be prepared, reviewed by Xxxxxx Xxxxxxxx LLP ("Xxxxxx Xxxxxxxx") as set forth below, reviewed by Acquiror and all conditions to closing are satisfied prior to the end of the Proxy Month. In all other events, the Closing Balance Sheet Date shall be the last date of the Proxy Month. The Closing Date shall occur during the month following the Closing Balance Sheet Date, provided however, that in no event shall Acquiror be required to close on a date other than, at its sole option, the last day of the month following the month in which the Closing Balance Sheet Date occurs or the first day of the succeeding month. Notwithstanding the foregoing, if all closing conditions have not been satisfied by the date on which the Closing would otherwise occur pursuant to the previous sentence, then a new Closing Balance Sheet Date shall be set as the end of the month following the month in which the previous Closing Balance Sheet Date fell and the Closing Date again determined pursuant to the foregoing. This process will be repeated until the first to occur of (i) Effective Time or (ii) the termination of this Agreement. The foregoing shall not be deemed to modify any of the dates by which the Special Meeting must occur or the transaction must be consummated, as set forth in Section 7. (b) Immediately following the Closing Balance Sheet Date, Target shall prepare a balance sheet of Target (on a consolidated basis) as of the Closing Balance Sheet Date. Target shall prepare such balance sheet in accordance with GAAP in a manner consistent with the manner in which Target's audited consolidated balance sheet as of December 31, 2001 was prepared and Target shall cause Xxxxxx Xxxxxxxx, its independent auditors, to perform procedures (similar to those of a SAS No. 71 review "Interim Financial Information") on the balance sheet so prepared as expeditiously as practicable. Prior to beginning such review, Xxxxxx Xxxxxxxx shall deliver to Acquiror a description of the review procedures it intends to follow. Acquiror may then make reasonable modifications to such review procedure. Xxxxxx Xxxxxxxx shall not initiate its review until Acquiror and Xxxxxx Xxxxxxxx have agreed upon such review procedures. Upon completion of the Xxxxxx Xxxxxxxx review, the reviewed balance sheet as of the Closing Balance Sheet Date (the "Closing Balance Sheet") shall immediately be furnished to Acquiror. Acquiror shall have the opportunity to review the Closing Balance Sheet and ask questions of Xxxxxx Xxxxxxxx and Target regarding the Closing Balance Sheet. Acquiror may propose changes and adjustments to the Closing Balance Sheet, which will be considered in good faith by Target and Xxxxxx Xxxxxxxx. If any such changes or adjustments are made, the Closing Balance Sheet as so changed or adjusted shall be the "Closing Balance Sheet" for purposes of the adjustments to the Cash Account set forth below. (c) At the Closing Balance Sheet Date, Target shall have unrestricted cash (the "Cash Account") in an amount equal to $4,840,000, subject to adjustment as follows: (i) To the extent that there is less than $4,840,000 in unrestricted cash held by Target at the Closing Balance Sheet Date, the Cash Account shall be increased on a dollar for dollar basis. (ii) To the extent that Payables exceed Assets, Cash Account shall be increased on a dollar for dollar basis by the amount of such excess. To the extent that Assets exceed Payables, the Cash Account shall be decreased on a dollar for dollar basis by the amount of such difference. For purposes of this adjustment, (i) "Payables" shall mean any liability which may have cash consequences to the Surviving Corporation or Acquiror, appearing on the Closing Balance Sheet other than (A) the unamortized balance from the adMonitor sale proceeds, (B) accrued vacation for employees that Acquiror is retaining following the Effective Time, (C) the note payable to Novus List Marketing, LLC (not to exceed $750,000) and (D) any liabilities relating to the matters set forth in Section 5.17 that are paid in cash between the date hereof and the Closing and (ii) "Assets" shall mean any asset appearing on the Closing Balance Sheet other than cash and cash equivalents, restricted cash, real estate security deposits, fixed assets, capital leases and goodwill.

Closing Balance Sheet; Purchase Price Adjustment. (a) Following that date on which Target has received proxies representing As promptly as practicable but in excess of 50% of its voting securities, directing that the relevant holders shares of Target be voted in favor of approving this Agreement, and the transactions contemplated hereby, Target shall certify to Acquiror that it has received such proxies and they are currently effective. Thereafter Target and Acquiror shall agree on a date, and such date shall be designated the "Closing Balance Sheet Date." The Closing Balance Sheet Date shall be either the last day of the month preceding the month in which the requisite number of proxies are received (the "Proxy Month") or the last day of the Proxy Month. The Closing Balance Sheet Date shall be the last day of the month preceding the Proxy Month if any event within 90 days following the Closing Balance Sheet can Date, Buyer shall prepare, or cause to be prepared, reviewed by Xxxxxx Xxxxxxxx LLP ("Xxxxxx Xxxxxxxx") as set forth below, reviewed by Acquiror and all conditions deliver to closing are satisfied prior to the end of the Proxy Month. In all other events, the Closing Balance Sheet Date shall be the last date of the Proxy Month. The Closing Date shall occur during the month following the Closing Balance Sheet Date, provided however, that in no event shall Acquiror be required to close on a date other than, at its sole option, the last day of the month following the month in which the Closing Balance Sheet Date occurs or the first day of the succeeding month. Notwithstanding the foregoing, if all closing conditions have not been satisfied by the date on which the Closing would otherwise occur pursuant to the previous sentence, then a new Closing Balance Sheet Date shall be set as the end of the month following the month in which the previous Closing Balance Sheet Date fell and the Closing Date again determined pursuant to the foregoing. This process will be repeated until the first to occur of (i) Effective Time or (ii) the termination of this Agreement. The foregoing shall not be deemed to modify any of the dates by which the Special Meeting must occur or the transaction must be consummated, as set forth in Section 7. (b) Immediately following the Closing Balance Sheet Date, Target shall prepare a Seller an unaudited pro forma balance sheet of Target (on a consolidated basis) the Company as of the Closing Balance Sheet Date. Target shall prepare such balance sheet in accordance with GAAP in a manner consistent with the manner in which Target's audited consolidated balance sheet as close of December 31, 2001 was prepared and Target shall cause Xxxxxx Xxxxxxxx, its independent auditors, to perform procedures (similar to those of a SAS No. 71 review "Interim Financial Information") business on the balance sheet so prepared as expeditiously as practicable. Prior to beginning such review, Xxxxxx Xxxxxxxx shall deliver to Acquiror a description of the review procedures it intends to follow. Acquiror may then make reasonable modifications to such review procedure. Xxxxxx Xxxxxxxx shall not initiate its review until Acquiror and Xxxxxx Xxxxxxxx have agreed upon such review procedures. Upon completion of the Xxxxxx Xxxxxxxx review, the reviewed balance sheet as of day immediately preceding the Closing Balance Sheet Date (the "Closing Balance Sheet") ). There shall immediately be furnished attached to Acquiror. Acquiror shall have the opportunity to review the Closing Balance Sheet an annex setting forth in reasonable detail the computation of the Purchase Price Adjustment (as defined in Section 1.04(d)). (b) The Closing Balance Sheet shall be prepared in accordance with U.S. generally accepted accounting principles ("GAAP"), determined as of the close of business on the day immediately preceding the Closing Date as if such date was the Company's normal year-end and ask questions applied on a consistent basis with the Annual Financial Statements (as defined in Section 2.04(a)), except that (i) no reserves, liabilities, asset valuation allowances or similar items reflected on the May 31 Balance Sheet (as defined in Section 2.04(a)) or created thereafter shall be reversed or shall be reallocated to cover any other reserve, liability, asset valuation allowance or similar item required to be provided for on the Closing Balance Sheet; (ii) any asset which is otherwise required to be reflected in the Closing Balance Sheet which is not reflected in the May 31 Balance Sheet, unless acquired thereafter, shall be excluded from the Closing Balance Sheet; (iii) no deferred income tax asset or income tax liability shall be included on the Closing Balance Sheet; (iv) no Income Tax asset or Income Tax liability shall be included on the Closing Balance Sheet; (v) the following items shall be included in the Closing Balance Sheet: (A) receivables captioned "Receivables Trade-From Consolidated Subs", (B) Miscellaneous Taxes (as defined in Section 4.09(a)(1)) and (C) any liability (but this clause (C) shall not be deemed to cover the FAS 106 Liability, which is covered under clause (x) of Xxxxxx Xxxxxxxx this Section 1.04(b)) which is accounted for through the intercompany account or otherwise is reflected on Seller's financial statements but related to the Company (but with respect to clause (C), only to the extent that such liability is being assumed by Buyer), notwithstanding that any liability described in this clause (v) may not have been taken into account in the preparation of the May 31 Balance Sheet or in determining the Target Book Value; provided, that no intercompany accounts not expressly described in this clause (v) shall be included in the Closing Balance Sheet; (vi) no reserve in respect of the Burn Testing Matter shall be included on the Closing Balance Sheet; (vii) no "LIFO Reserve" shall be included on the Closing Balance Sheet; (viii) no asset or liability arising out of the Subsidiary (including the investment shown as "Investment in & Noncurrent A/R from Consolidated Subs"), or the distribution of the capital stock of the Subsidiary, or any discontinued operation of or business sold by the Company or the Subsidiary, shall be included on the Closing Balance Sheet; (ix) "Total Accounts Payable" shall be reduced by the aggregate amount of the Outstanding Checks (shown as "Negative Cash") as of the close of business on the day immediately preceding the Closing Date; (x) the lesser of (i) 50% of the FAS 106 Liability (as defined in clause (g) of this Section 1.04) and Target regarding (ii) $2,000,000 shall be included as a liability on the Closing Balance Sheet (such amount included in the Closing Balance Sheet, the "FAS 106 Closing Balance Sheet Liability"); and (xi) no cash (including equivalents), including amounts described as "Receivables Other-Lockbox-KCC," shall be included on the Closing Balance Sheet. Acquiror may propose changes and adjustments All quoted terms in this clause shall refer to the Closing Balance Sheet, which will be considered captions in good faith by Target and Xxxxxx Xxxxxxxx. If any such changes or adjustments are made, the Closing Balance Sheet as so changed or adjusted shall be the "Closing Balance Sheet" for purposes of the adjustments to the Cash Account set forth belowCompany's balance sheet. (c) At the Closing Balance Sheet Date, Target shall have unrestricted cash (the "Cash Account") in an amount equal to $4,840,000, subject to adjustment as follows: (i) To the extent that there is less than $4,840,000 in unrestricted cash held by Target at the Closing Balance Sheet Date, the Cash Account shall be increased on a dollar for dollar basis. (ii) To the extent that Payables exceed Assets, Cash Account shall be increased on a dollar for dollar basis by the amount of such excess. To the extent that Assets exceed Payables, the Cash Account shall be decreased on a dollar for dollar basis by the amount of such difference. For purposes of this adjustment, (i) "Payables" shall mean any liability which may have cash consequences to the Surviving Corporation or Acquiror, appearing on the Closing Balance Sheet other than (A) the unamortized balance from the adMonitor sale proceeds, (B) accrued vacation for employees that Acquiror is retaining following the Effective Time, (C) the note payable to Novus List Marketing, LLC (not to exceed $750,000) and (D) any liabilities relating to the matters set forth in Section 5.17 that are paid in cash between the date hereof and the Closing and (ii) "Assets" shall mean any asset appearing on the Closing Balance Sheet other than cash and cash equivalents, restricted cash, real estate security deposits, fixed assets, capital leases and goodwill.

Closing Balance Sheet; Purchase Price Adjustment. (a) Following that date on which Target has received proxies representing As promptly as practicable but in excess of 50% of its voting securitiesany event within 60 days following the Closing Date, directing that the relevant holders shares of Target Seller shall prepare, or cause to be voted in favor of approving this Agreementprepared, and deliver to Purchaser an unaudited pro forma balance sheet of the transactions contemplated hereby, Target shall certify to Acquiror that it has received such proxies and they are currently effectiveDivision as of the close of business on the day immediately preceding the Closing Date (the "CLOSING BALANCE SHEET"). Thereafter Target and Acquiror shall agree on a date, and such date There shall be designated attached to the "Closing Balance Sheet Datean annex setting forth in reasonable detail Seller's computation of the Purchase Price Adjustment (as defined in SECTION 2.2(D)). For purposes of calculating the Purchase Price Adjustment, Purchaser and Seller have prepared the modified September 30 Balance Sheet attached hereto (the "Modified September 30 Balance Sheet") included in Section 2.2(a) of the Disclosure Schedule." (b) The Closing Balance Sheet Date shall be either prepared in accordance with GAAP, as modified by the last day principles utilized to prepare the Modified September 30 Balance Sheet, determined as of the month close of business on the day immediately preceding the month Closing Date and applied on a consistent basis (it being acknowledged, for the purposes of clarity, that reserves shall be created, modified or reversed only in which accordance with Seller's past policies and practices); except that (i) no Excluded Asset (including, without limitation, Cash) shall be included on the requisite number Closing Balance Sheet; (ii) no Excluded Liability or reserve therefor (including, without limitation, all Existing Indebtedness not assumed by Purchaser) shall be included on the Closing Balance Sheet; (iii) no deferred income tax asset or income tax liability shall be included on the Closing Balance Sheet; (iv) no income tax asset or income tax liability shall be included on the Closing Balance Sheet; (v) no allocation of proxies are received corporate expenses shall be included on the Closing Balance Sheet; (vi) no property, plant or equipment shall be revalued; (vii) goodwill shall not be revalued; (viii) the "Proxy Month") allowance for doubtful accounts receivable on the Closing Balance Sheet shall be the greater of $64,405 or the last day 2.3% of the Proxy Monthgross accounts receivable outstanding; (ix) the reserve for customer product returns on the Closing Balance Sheet shall be the greater of $43,083 or 1.5% of gross accounts receivable outstanding and (x) no Liability or reserve therefor with respect to employee compensation or benefit matters (including under any Employee Benefit Plan) shall be accrued or reflected on the Closing Balance Sheet except for accruals in the ordinary course of business consistent with past practices. The Closing Balance Sheet shall include appropriate accruals through the Closing Date for all Assumed Obligations. (c) The Closing Balance Sheet delivered by Seller to Purchaser and the computation of the Purchase Price Adjustment annexed thereto shall be conclusive and binding upon the last day parties unless Purchaser, within 30 days after the delivery to Purchaser of the month preceding Closing Balance Sheet, notifies Seller in writing that Purchaser disputes any of the Proxy Month if amounts set forth therein, specifying the nature of the dispute and the basis therefor. The parties shall in good faith attempt to resolve any dispute, in which event the Closing Balance Sheet can be preparedand the computation of the Purchase Price Adjustment, reviewed by Xxxxxx Xxxxxxxx LLP ("Xxxxxx Xxxxxxxx") as set forth below, reviewed by Acquiror and all conditions to closing are satisfied prior amended to the end extent necessary to reflect the resolution of the Proxy Month. In all other eventsdispute, the Closing Balance Sheet Date shall be conclusive and binding upon the last date parties. If the parties do not reach agreement resolving all of the Proxy Month. The Closing Date shall occur during the month following the Closing Balance Sheet Date, provided however, that matters in no event shall Acquiror be required dispute within 30 days after notice is given by Seller to close on a date other than, at its sole option, the last day of the month following the month in which the Closing Balance Sheet Date occurs or the first day of the succeeding month. Notwithstanding the foregoing, if all closing conditions have not been satisfied by the date on which the Closing would otherwise occur Purchaser pursuant to the previous second preceding sentence, then the parties shall submit the remaining matters in dispute to the department specializing in dispute resolution of the New York office of KPMG LLP for resolution; provided, that if KPMG LLP has had a new Closing Balance Sheet Date material relationship with any of Purchaser, Parent or Seller or any of their respective affiliates within the two years preceding the appointment or KPMG LLP refuses to accept such appointment, the parties shall submit the remaining matters in dispute to such other nationally recognized independent accounting firm that is mutually agreeable to the parties, which firm shall not have had a material relationship with any of Purchaser, Parent or Seller or their respective affiliates within the two years preceding the appointment (such accounting firm, the "ARBITER"), for resolution. If the parties cannot agree on the selection of such an independent accounting firm to act as Arbiter, the parties shall request the American Arbitration Association to appoint such a firm, and such appointment shall be set conclusive and binding upon the parties. Promptly, but no later than 30 days after its acceptance of its appointment as Arbiter, the end of Arbiter shall determine, based solely on presentations by Purchaser and Seller, and not by independent review, only those issues in dispute and shall render a written report as to the month following the month in which the previous Closing Balance Sheet Date fell dispute and the Closing Date again determined pursuant to the foregoing. This process will be repeated until the first to occur of (i) Effective Time or (ii) the termination of this Agreement. The foregoing shall not be deemed to modify any of the dates by which the Special Meeting must occur or the transaction must be consummated, as set forth in Section 7. (b) Immediately following the Closing Balance Sheet Date, Target shall prepare a balance sheet of Target (on a consolidated basis) as resulting computation of the Closing Balance Sheet Dateand the Purchase Price Adjustment, if any, which shall be conclusive and binding upon the parties. Target In resolving any disputed item, the Arbiter (x) shall prepare such balance sheet make its determination in accordance with GAAP the provisions of this SECTION 2.2 and the other provisions of this Agreement to the extent expressly relating to this SECTION 2.2 and the matters in a manner consistent dispute (provided that, whether or not Purchaser has an indemnification right hereunder with the manner in which Target's audited consolidated balance sheet as of December 31, 2001 was prepared and Target respect to any matter shall cause Xxxxxx Xxxxxxxx, its independent auditors, to perform procedures (similar to those of a SAS No. 71 review "Interim Financial Information") on the balance sheet so prepared as expeditiously as practicable. Prior to beginning such review, Xxxxxx Xxxxxxxx shall deliver to Acquiror a description not be taken into account for purposes of the review procedures it intends to follow. Acquiror may then make reasonable modifications to such review procedure. Xxxxxx Xxxxxxxx shall not initiate its review until Acquiror and Xxxxxx Xxxxxxxx have agreed upon such review procedures. Upon completion of the Xxxxxx Xxxxxxxx review, the reviewed balance sheet as preparation of the Closing Balance Sheet Date or any dispute in connection therewith), (the "Closing Balance Sheet"y) shall immediately be furnished bound by the provisions of paragraph (b) of this SECTION 2.2, and (z) may not assign a value to Acquirorany item greater than the greatest value for such item claimed by either party or less than the smallest value for such item claimed by either party. Acquiror The fees, costs and expenses of the Arbiter (i) shall have be borne by Purchaser in the opportunity proportion that the aggregate dollar amount of such disputed items so submitted that are unsuccessfully disputed by Purchaser (as finally determined by the Arbiter) bears to the aggregate dollar amount of such items so submitted and (ii) shall be borne by Seller in the proportion that the aggregate dollar amount of such disputed items so submitted that are successfully disputed by Purchaser (as finally determined by the Arbiter) bears to the aggregate dollar amount of such items so submitted. Parent and Purchaser, on the one hand, and Seller, on the other hand, each shall make available to the other (upon the request of the other) their respective work papers generated in connection with the preparation or review the Closing Balance Sheet and ask questions of Xxxxxx Xxxxxxxx and Target regarding the Closing Balance Sheet. Acquiror may propose changes and adjustments to the Closing Balance Sheet, which will be considered in good faith by Target and Xxxxxx Xxxxxxxx. If any such changes or adjustments are made, the Closing Balance Sheet as so changed or adjusted shall be the "Closing Balance Sheet" for purposes of the adjustments to the Cash Account set forth below. (c) At the Closing Balance Sheet Date, Target shall have unrestricted cash (the "Cash Account") in an amount equal to $4,840,000, subject to adjustment as follows: (i) To the extent that there is less than $4,840,000 in unrestricted cash held by Target at the Closing Balance Sheet Date, the Cash Account shall be increased on a dollar for dollar basis. (ii) To the extent that Payables exceed Assets, Cash Account shall be increased on a dollar for dollar basis by the amount of such excess. To the extent that Assets exceed Payables, the Cash Account shall be decreased on a dollar for dollar basis by the amount of such difference. For purposes of this adjustment, (i) "Payables" shall mean any liability which may have cash consequences to the Surviving Corporation or Acquiror, appearing on the Closing Balance Sheet other than (A) the unamortized balance from the adMonitor sale proceeds, (B) accrued vacation for employees that Acquiror is retaining following the Effective Time, (C) the note payable to Novus List Marketing, LLC (not to exceed $750,000) and (D) any liabilities relating to the matters set forth in Section 5.17 that are paid in cash between the date hereof and the Closing and (ii) "Assets" shall mean any asset appearing on the Closing Balance Sheet other than cash and cash equivalents, restricted cash, real estate security deposits, fixed assets, capital leases and goodwill.

Closing Balance Sheet; Purchase Price Adjustment. (a) Following that date on which Target has received proxies representing in excess of 50% of its voting securities, directing that the relevant holders shares of Target be voted in favor of approving this Agreement, and the transactions contemplated hereby, Target shall certify to Acquiror that it has received such proxies and they are currently effective. Thereafter Target and Acquiror shall agree on a date, and such date shall be designated the "Closing Balance Sheet Date." The Closing Balance Sheet Date shall be either the last day of the month preceding the month in which the requisite number of proxies are received (the "Proxy Month") or the last day of the Proxy Month. The Closing Balance Sheet Date shall be the last day of the month preceding the Proxy Month if the Closing Balance Sheet can be prepared, reviewed by Xxxxxx Xxxxxxxx Arthur Andersen LLP ("Xxxxxx XxxxxxxxArthur Andersen") as set forth below, reviewed by Acquiror and xx Xxqxxxxx xxd all conditions to closing cxxxxxxoxx xx xxosing are satisfied prior to the end of the Proxy Month. In all other events, the Closing Balance Sheet Date shall be the last date of the Proxy Month. The Closing Date shall occur during the month following the Closing Balance Sheet Date, provided however, that in no event shall Acquiror be required to close on a date other than, at its sole option, the last day of the month following the month in which the Closing Balance Sheet Date occurs or the first day of the succeeding month. Notwithstanding the foregoing, if all closing conditions have not been satisfied by the date on which the Closing would otherwise occur pursuant to the previous sentence, then a new Closing Balance Sheet Date shall be set as the end of the month following the month in which the previous Closing Balance Sheet Date fell and the Closing Date again determined pursuant to the foregoing. This process will be repeated until the first to occur of (i) Effective Time or (ii) the termination of this Agreement. The foregoing shall not be deemed to modify any of the dates by which the Special Meeting must occur or the transaction must be consummated, as set forth in Section 7. (b) Immediately following the Closing Balance Sheet Date, Target shall prepare a balance sheet of Target (on a consolidated basis) as of the Closing Balance Sheet Date. Target shall prepare such balance sheet in accordance with GAAP in a manner consistent with the manner in which Target's audited consolidated balance sheet as of December 31, 2001 was prepared and Target shall cause Xxxxxx XxxxxxxxArthur Andersen, its independent auditors, to perform procedures (similar to those sixxxxx tx xxxxx of a SAS No. 71 review "Interim Financial Information") on the balance sheet so prepared as expeditiously as practicable. Prior to beginning such review, Xxxxxx Xxxxxxxx Arthur Andersen shall deliver to Acquiror a description of the review procedures it reviex xxxxexxxxx xx intends to follow. Acquiror may then make reasonable modifications to such review procedure. Xxxxxx Xxxxxxxx Arthur Andersen shall not initiate its review until Acquiror and Xxxxxx Xxxxxxxx have Artxxx Xxdxxxxx xxve agreed upon such review procedures. Upon completion of the Xxxxxx Xxxxxxxx complexxxx xf xxx Xxxhur Andersen review, the reviewed balance sheet as of the Closing Balance Sheet Xxxxxcx Xxxxx Date (the "Closing Balance Sheet") shall immediately be furnished to Acquiror. Acquiror shall have the opportunity to review the Closing Balance Sheet and ask questions of Xxxxxx Xxxxxxxx Arthur Andersen and Target regarding the Closing Balance Sheet. Acquiror may propose Acquxxxx xax xxxxxxe changes and adjustments to the Closing Balance Sheet, which will be considered in good faith by Target and Xxxxxx XxxxxxxxArthur Andersen. If any such changes or adjustments are made, the Closing Balance Sheet Clxxxxx Bxxxxxx Xheet as so changed or adjusted shall be the "Closing Balance Sheet" for purposes of the adjustments to the Cash Account set forth below. (c) At the Closing Balance Sheet Date, Target shall have unrestricted cash (the "Cash Account") in an amount equal to $4,840,000, subject to adjustment as follows: (i) To the extent that there is less than $4,840,000 in unrestricted cash held by Target at the Closing Balance Sheet Date, the Cash Account shall be increased on a dollar for dollar basis. (ii) To the extent that Payables exceed Assets, Cash Account shall be increased on a dollar for dollar basis by the amount of such excess. To the extent that Assets exceed Payables, the Cash Account shall be decreased on a dollar for dollar basis by the amount of such difference. For purposes of this adjustment, (i) "Payables" shall mean any liability which may have cash consequences to the Surviving Corporation or Acquiror, appearing on the Closing Balance Sheet other than (A) the unamortized balance from the adMonitor sale proceeds, (B) accrued vacation for employees that Acquiror is retaining following the Effective Time, (C) the note payable to Novus List Marketing, LLC (not to exceed $750,000) and (D) any liabilities relating to the matters set forth in Section 5.17 that are paid in cash between the date hereof and the Closing and (ii) "Assets" shall mean any asset appearing on the Closing Balance Sheet other than cash and cash equivalents, restricted cash, real estate security deposits, fixed assets, capital leases and goodwill.