Common use of Net Asset Value Adjustment Clause in Contracts

Net Asset Value Adjustment. The “NAV Adjustment” (if any) shall be determined as follows: (i) The Purchaser and the Sellers agree that the amount of Tranche 1 Consideration payable at Closing has been calculated by applying to the sum of $15,000,000 the Initial NAV Adjustment; being the Net Asset Value as shown in the Closing Balance Sheet less the Target Net Asset Value. The Parties agree that if the Initial NAV Adjustment were greater than zero, then the Initial NAV Adjustment would be deemed to equal zero. (ii) Within seventy-five (75) days of the Closing, the Purchaser shall use its reasonable commercial endeavors to procure that the Company’s auditors prepare the Purchaser Closing Balance Sheet and the Purchaser shall forward the Purchaser Closing Balance Sheet (including, where possible, actual numbers rather than accruals) to the Management Sellers Representative for approval for the purposes of a revision of the NAV Adjustment (a “True Up”) to be determined as follows. For the avoidance of doubt, if the Actual Net Asset Value is exactly [-$2,221,577] (being the Closing Net Asset Value), then no further payment shall be made by either party in relation to the True-Up. (iii) If the Actual Net Asset value is below (worse than) [-$2,221,577], then the amount by which it is less than [-$2,221,577] (the “True Up Shortfall”) will be paid to the Purchaser in relation to the True-Up as follows: To the extent that such True Up Shortfall is equal to or less than $100,000 it shall be paid by the Sellers to the Purchaser in the proportions set out in Column 5 of Schedule 1 within five (5) Business Days of the True Up Shortfall being finally determined (whether by approval or deemed approval by the Management Sellers Representative or determination by the Expert) and to the extent such True Up Shortfall is greater than $100,000 or in the event that any Management Seller fails to so pay any True Up Shortfall payable hereunder within five (5) Business Days, then such excess or unpaid True Up Shortfall (as the case may be) shall be deducted from any unpaid Installment. (iv) If the Actual Net Asset value is above (better than) [-$2,221,577], then the amount by which it is greater than [-$2,221,577] (the “True Up Excess”) will be paid to the Sellers in relation to the True-Up as follows: To the extent that such True Up Excess is equal to or less than $100,000 it shall be paid by the Purchaser to the Sellers who shall be entitled to it in the proportions set out in Column 5 of Schedule 1 within 5 Business Days of the True Up Excess being finally determined (whether by approval or deemed approval by the Management Sellers Representative or determination by the Expert) and to the extent that such True Up Excess is greater than $100,000 then such excess True Up Excess shall be added to the First Installment, provided however that the maximum value of any True Up Excess provided for in this section 2.02 will be limited to the Initial NAV Adjustment, and therefore, for the avoidance of doubt the maximum Tranche 1 Consideration shall be $15,000,000. (v) The Management Sellers Representative shall have fifteen (15) Business Days of receipt of the Purchaser Closing Balance Sheet (“Approval Period”) to approve the Purchaser Closing Balance Sheet. In the event that the Management Sellers Representative approves the Purchaser Closing Balance Sheet or no NAV Notice of Objection (as defined below) is served by the Management Sellers Representative within the Approval Period, the Purchaser Closing Balance Sheet and the NAV Adjustment shall be deemed to be approved by the Sellers and shall be final, conclusive and binding. If the Management Sellers Representative disagrees with the calculation of the NAV Adjustment, the Management Sellers Representative may, on or prior to the last day of the Approval Period, deliver a notice to the Purchaser (“NAV Notice of Objection”), which must set forth the Management Sellers Representative’s objection to the NAV Adjustment, specify those items or amounts with which the Management Seller’ Representative disagrees, and (insofar as it is reasonably practicable) include a calculation of NAV Adjustment and the Purchaser Closing Balance Sheet based on such objections. In the event of receipt of a NAV Notice of Objection by the Purchaser from the Management Sellers Representative, the Purchaser and the Management Sellers Representative shall, during the seven (7) days following such delivery or any mutually agreed extension thereof, use their commercially reasonable efforts to reach agreement on the disputed items and amounts in order to determine the amount of the NAV Adjustment. If, at the end of such period or any mutually agreed extension thereof, the Purchaser and the Management Sellers Representative are unable to resolve their disagreements, the dispute will be referred to an Expert for determination in accordance with Schedule 4.

Net Asset Value Adjustment. A. The “NAV Adjustment” (if any) Purchase Price shall be determined as follows: subject to adjustment (i) The Purchaser a “Net Asset Value Purchase Price Adjustment”), on a dollar-for-dollar basis, if and to the Sellers agree extent that the amount of Tranche 1 Consideration payable at Closing has been calculated by applying to the sum of $15,000,000 the Initial NAV Adjustment; being the Company Net Asset Value as shown reflected on the Company’s balance sheet as of January 27, 2007 attached hereto as Exhibit 2.3(d)(i)(A) (the “January 2007 Balance Sheet”), which equals $19,615,000 (the “January 2007 Net Asset Value”), is greater or less than the Company Net Asset Value as of the Closing Date (the “Closing Net Asset Value”), as reflected on a balance sheet dated as of the Closing (the “Closing Balance Sheet”) which shall be prepared by the Surviving Corporation and delivered to the Buyer and the Stockholder Representative within thirty (30) days following the Closing. The Closing Balance Sheet shall be prepared in accordance with GAAP and on a basis consistent with the most recent audited balance sheets of the Company, and shall be subject to the reasonable review and approval of the Buyer and the Stockholder Representative before it is deemed to be finally determined. The Surviving Corporation shall prepare the Closing Balance Sheet less such that it accurately reflects and quantifies both the Target Closing Net Asset Value. The Parties agree that if Value and the Initial NAV Adjustment were greater than zero, then the Initial NAV Adjustment would be deemed to equal zeroClosing Debt Repayment Amount. (ii) Within seventy-five (75) days of B. If the Closing, the Purchaser shall use its reasonable commercial endeavors to procure that the Company’s auditors prepare the Purchaser Closing Balance Sheet and the Purchaser shall forward the Purchaser Closing Balance Sheet (including, where possible, actual numbers rather than accruals) to the Management Sellers Representative for approval for the purposes of a revision of the NAV Adjustment (a “True Up”) to be determined as follows. For the avoidance of doubt, if the Actual January 2007 Net Asset Value is exactly [-$2,221,577] (being less than the Closing Net Asset Value), then no further payment (i) the Purchase Price shall be made by either party increased on a dollar-for-dollar basis in relation an amount equal to the True-Updifference, and in satisfaction thereof (ii) the Buyer shall as soon as practicable (and in any event within three (3) business days after the final determination of the Closing Net Asset Value) wire the difference in immediately available funds to the Majority Stockholders in proportion to their respective Participation Percentages. (iii) C. If the Actual January 2007 Net Asset value is below (worse than) [-$2,221,577], then the amount by which it is less than [-$2,221,577] (the “True Up Shortfall”) will be paid to the Purchaser in relation to the True-Up as follows: To the extent that such True Up Shortfall is equal to or less than $100,000 it shall be paid by the Sellers to the Purchaser in the proportions set out in Column 5 of Schedule 1 within five (5) Business Days of the True Up Shortfall being finally determined (whether by approval or deemed approval by the Management Sellers Representative or determination by the Expert) and to the extent such True Up Shortfall Value is greater than $100,000 or in the event that any Management Seller fails to so pay any True Up Shortfall payable hereunder within five (5) Business DaysClosing Net Asset Value, then such excess or unpaid True Up Shortfall (as i) the case may be) Purchase Price shall be deducted from any unpaid Installment. (iv) If the Actual Net Asset value is above (better than) [-$2,221,577], then the decreased on a dollar-for-dollar basis in an amount by which it is greater than [-$2,221,577] (the “True Up Excess”) will be paid equal to the Sellers in relation to difference and (ii) the True-Up as follows: To the extent that such True Up Excess is equal to or less than $100,000 it shall be paid by the Purchaser to the Sellers who Buyer shall be entitled to it receive as soon as practicable (and in any event within three (3) business days after the proportions set out in Column 5 of Schedule 1 within 5 Business Days final determination of the True Up Excess being finally determined (whether by approval or deemed approval Closing Net Asset Value) an amount equal to the difference, payable by the Management Sellers Representative or determination by Majority Stockholders on a pro rata basis in proportion to the ExpertParticipation Percentage of the respective Majority Stockholder, either (at the election of the applicable Majority Stockholder) and (I) in Buyer Stock from the applicable Majority Stockholder, to the extent that received and still owned by such True Up Excess is greater than $100,000 then such excess True Up Excess Majority Stockholder, which Buyer Stock shall be added to valued at the First Installment, provided however that average closing price of shares of the maximum value of any True Up Excess provided for in this section 2.02 will be limited to Buyer Stock on the Initial NAV Adjustment, and therefore, Nasdaq Global Market for the avoidance period of doubt twenty (20) consecutive trading days ending on the maximum Tranche 1 Consideration shall be $15,000,000. (v) The Management Sellers Representative shall have fifteen (15) Business Days date such shares of receipt of the Purchaser Closing Balance Sheet (“Approval Period”) to approve the Purchaser Closing Balance Sheet. In the event that the Management Sellers Representative approves the Purchaser Closing Balance Sheet or no NAV Notice of Objection (as defined below) is served Buyer Stock are tendered by the Management Sellers Representative within the Approval Period, the Purchaser Closing Balance Sheet and the NAV Adjustment shall be deemed to be approved by the Sellers and shall be final, conclusive and binding. If the Management Sellers Representative disagrees with the calculation of the NAV Adjustment, the Management Sellers Representative may, on or prior to the last day of the Approval Period, deliver a notice to the Purchaser (“NAV Notice of Objection”), which must set forth the Management Sellers Representative’s objection to the NAV Adjustment, specify those items or amounts with which the Management Seller’ Representative disagrees, and (insofar as it is reasonably practicable) include a calculation of NAV Adjustment and the Purchaser Closing Balance Sheet based on such objections. In the event of receipt of a NAV Notice of Objection by the Purchaser from the Management Sellers Representative, the Purchaser and the Management Sellers Representative shall, during the seven (7) days following such delivery or any mutually agreed extension thereof, use their commercially reasonable efforts to reach agreement on the disputed items and amounts in order to determine the amount of the NAV Adjustment. If, at the end of such period or any mutually agreed extension thereof, the Purchaser and the Management Sellers Representative are unable to resolve their disagreements, the dispute will be referred to an Expert for determination applicable Majority Stockholder in accordance with Schedule 4herewith, or (II) in cash.

Net Asset Value Adjustment. (a) As soon as reasonably practical following (but not more than ninety (90) days after) the Closing Date, Enterra shall prepare and deliver to Xxxxxx a statement of Assets and Assumed Liabilities as of the Closing Date (the "STATEMENT OF NET ASSETS"). The “NAV Adjustment” (if any) Statement of Net Assets shall be determined as follows: (i) The Purchaser prepared using the same methods and criteria employed by the Seller in connection with the preparation of the May Balance Sheet and the Sellers agree example set forth in EXHIBIT 2, to the extent such methods and criteria are consistent with GAAP. In making such calculation, to the extent that there is a conflict between the methodology set forth in the example attached as EXHIBIT 2 and GAAP, then the methodology set forth in the example attached as EXHIBIT 2 shall control. All expenses incurred in connection with the preparation of the Statement of Net Assets shall be the responsibility of the Purchasers. The Statement of Net Assets shall be accompanied by Enterra's calculation based thereon of the amount by which the Assets exceed the Assumed Liabilities (the amount of Tranche 1 Consideration payable at Closing has been calculated by applying such excess, the "NET ASSET VALUE", and Purchasers' calculation thereof, "PURCHASERS' CALCULATION OF NET ASSET VALUE"). Xxxxxx shall have the opportunity, but not the obligation, to participate in Enterra's preparation of the sum Purchasers' Calculation of $15,000,000 the Initial NAV Adjustment; being the Net Asset Value as shown in the Closing Balance Sheet less the Target Net Asset Value. Within ten (10) days following the delivery of the Purchasers' Calculation of Net Asset Value, Xxxxxx shall notify Enterra whether it agrees or disagrees with the determination of the Purchasers' Calculation of Net Asset Value, and, if Xxxxxx disagrees, Enterra and Xxxxxx shall, on a good faith basis, seek to reconcile their disagreement regarding the Purchasers' Calculation of Net Asset Value and Xxxxxx'x calculation of Net Asset Value ("XXXXXX'X CALCULATION OF NET ASSET VALUE"). The Parties agree that if calculation of Net Asset Value agreed upon by the Initial NAV Adjustment were greater than zeroPurchasers and Xxxxxx shall be referred to herein as the "AGREED UPON NET ASSET VALUE". Xxxxxx and Enterra shall each have access to the other party's books, then the Initial NAV Adjustment would be deemed to equal zerorecords and other information and documents supporting such other party's calculation of Net Asset Value. (iib) Within seventy-five (75) days If, after the review set forth in SECTION 4.5(a), Enterra and Xxxxxx reconcile Xxxxxx'x Calculation of the Closing, the Purchaser shall use its reasonable commercial endeavors to procure that the Company’s auditors prepare the Purchaser Closing Balance Sheet and the Purchaser shall forward the Purchaser Closing Balance Sheet (including, where possible, actual numbers rather than accruals) to the Management Sellers Representative for approval for the purposes of a revision of the NAV Adjustment (a “True Up”) to be determined as follows. For the avoidance of doubt, if the Actual Net Asset Value is exactly [-$2,221,577] (being with the Closing Purchasers' Calculation of Net Asset Value), then no further payment shall be made by either party in relation to the True-Up. within three (iii3) If the Actual Net Asset value is below (worse than) [-$2,221,577]business days, then the amount by which it is less than [-$2,221,577] (the “True Up Shortfall”) will be paid to the Purchaser in relation to the True-Up as follows: To the extent that such True Up Shortfall is equal to or less than $100,000 it shall be paid by the Sellers to the Purchaser in the proportions set out in Column 5 of Schedule 1 within five (5) Business Days of the True Up Shortfall being finally determined (whether by approval or deemed approval by the Management Sellers Representative or determination by the Expert) and to the extent such True Up Shortfall is greater than $100,000 or in the event that any Management Seller fails to so pay any True Up Shortfall payable hereunder within five (5) Business Days, then such excess or unpaid True Up Shortfall (as the case may be: (i) the Seller shall be deducted from any unpaid Installment. (iv) If pay the Actual Net Asset value is above (better than) [-$2,221,577], then Purchasers by wire transfer of immediately available funds the amount by which it is greater than [-$2,221,577] the Interim Net Asset Value Adjustment exceeds the Agreed Upon Net Asset Value, or (ii) the “True Up Excess”) will be paid Purchasers shall pay to the Sellers in relation Seller by wire transfer of immediately available funds the amount by which the Agreed Upon Net Asset Value exceeds the Interim Net Asset Value Adjustment. Any such amounts paid pursuant to this SECTION 4.5(b) shall be considered an increase or decrease, as the case may be, to the True-Up Purchase Price. (c) If, after the review set forth in SECTION 4.5(a), Enterra and Xxxxxx are unable to reconcile Xxxxxx'x Calculation of Net Asset Value with the Purchasers' Calculation of Net Asset Value, as follows: To soon as practical, and in any event within ten (10) days, the extent that such True Up Excess is equal calculation of Net Asset Value and the balance owing to the Purchasers or less than $100,000 it the Seller hereunder, as the case may be, shall be paid determined jointly by the Purchaser Coopers & Xxxxxxx, L.L.P., Houston, Texas and another independent, Big Six accounting firm to the Sellers who be named by Enterra. The Net Asset Value as determined jointly by such accounting firms shall be entitled referred to it in herein as the proportions set out in Column 5 of Schedule 1 within 5 Business Days of the True Up Excess being finally determined (whether by approval or deemed approval by the Management Sellers Representative or determination by the Expert) and "ACCOUNTANTS' CALCULATION OF NET ASSET VALUE". In making such determination, to the extent that there is a conflict between the methodology set forth in the example attached as EXHIBIT 2 and GAAP, then the methodology set forth in the example attached as EXHIBIT 2 shall control. If Coopers & Xxxxxxx, L.L.P. and such True Up Excess is greater than $100,000 accounting firm named by Enterra shall not be able to agree on the Net Asset Value and the balance owing to the Purchasers or the Seller hereunder, as the case may be, within thirty (30) days, then such excess True Up Excess accounting firms shall select a third nationally recognized accounting firm which shall determine the Net Asset Value and the balance owing to the Purchasers or the Seller hereunder, as the case may be, and the determination of such third accounting firm shall be added final and binding on the parties hereto. The fees and expenses of such accounting firms shall be borne equally by Xxxxxx and Enterra. The parties hereto agree to cooperate fully with such accounting firms and furnish such firms with such information as they may require to make such determination. (d) After the determination of the Net Asset Value and the balance owing to the First InstallmentPurchasers or the Seller hereunder, provided however that as the maximum value of any True Up Excess case may be, by the accounting firm or firms provided for in this section 2.02 will be limited SECTION 4.5(c), within three (3) days after such determination: (i) the Seller shall pay to the Initial NAV Purchasers by wire transfer of immediately available funds the amount by which the Interim Net Asset Value Adjustment exceeds the Accountants' Calculation of Net Asset Value, or (ii) the Purchasers shall pay to the Seller by wire transfer of immediately available funds the amount by which the Accountants' Calculation of Net Asset Value exceeds the Interim Asset Value Adjustment, and therefore, for the avoidance of doubt the maximum Tranche 1 Consideration . Any such excess amounts paid pursuant to this SECTION 4.5(d) shall be $15,000,000considered an increase or decrease, as the case may be, to the Purchase Price. (ve) The Management Sellers Representative Nothing in this SECTION 4.5 shall preclude any party from exercising, or shall adversely affect any right or remedy available to it hereunder or limit in any respect the exercise of, any right or remedy available to it hereunder for misrepresentation or breach of warranty hereunder, but neither the Purchasers nor any Seller shall have fifteen (15) Business Days of receipt the right to dispute the Net Asset Value or any element of the Purchaser Closing Balance Sheet (“Approval Period”) to approve the Purchaser Closing Balance Sheet. In the event that the Management Sellers Representative approves the Purchaser Closing Balance Sheet or no NAV Notice of Objection (as defined below) is served by the Management Sellers Representative within the Approval Period, the Purchaser Closing Balance Sheet and the NAV Adjustment shall be deemed to be approved by the Sellers and shall be final, conclusive and binding. If the Management Sellers Representative disagrees with the calculation of the NAV Adjustment, the Management Sellers Representative may, on or prior to the last day of the Approval Period, deliver a notice to the Purchaser (“NAV Notice of Objection”), which must set forth the Management Sellers Representative’s objection to the NAV Adjustment, specify those items or amounts with which the Management Seller’ Representative disagrees, and (insofar as thereof once it is reasonably practicable) include a calculation of NAV Adjustment and the Purchaser Closing Balance Sheet based on such objections. In the event of receipt of a NAV Notice of Objection by the Purchaser from the Management Sellers Representative, the Purchaser and the Management Sellers Representative shall, during the seven (7) days following such delivery or any mutually agreed extension thereof, use their commercially reasonable efforts to reach agreement on the disputed items and amounts in order to determine the amount of the NAV Adjustment. If, at the end of such period or any mutually agreed extension thereof, the Purchaser and the Management Sellers Representative are unable to resolve their disagreements, the dispute will be referred to an Expert for determination has been finally determined in accordance with Schedule 4SECTION 4.5(a) or (c) hereof. (f) An example of the calculations referred to in this SECTION 4.5 is attached hereto on EXHIBIT 2.