Net Asset Value Adjustment. (i) Within thirty (30) days of the Closing, the Seller shall deliver to the Buyer an unaudited statement of the Closing Date Net Asset Value (the “Closing Date Net Asset Value Statement”). If the Closing Date Net Asset Value as shown on the Closing Date Net Asset Value Statement is less than $304,950, then the Purchase Price shall be decreased by an amount equal to the difference obtained by subtracting the amount of the Closing Date Net Asset Value from $304,950. If the Closing Date Net Asset Value as shown on the Closing Date Net Asset Value Statement is greater than $304,950, then the Purchase Price will be increased by an amount equal to the difference obtained by subtracting $304,950 from the amount of the Closing Date Net Asset Value. (ii) If the Buyer disagrees with the Closing Date Net Asset Value as shown on the Closing Date Net Asset Value Statement, then as soon as practicable following the Closing Date (but not later than 30 days after the delivery thereof), the Buyer shall prepare and deliver to the Seller, its own statement of the Net Asset Value as of 12:01 a.m., San Diego time, on the Closing Date (the “Buyer Closing Date Net Asset Value Statement” and the Closing Date Net Asset Value as reflected on the Buyer Closing Date Net Asset Value Statement being referred to herein as the “Buyer Determined Closing Date Net Asset Value”). In preparing the Buyer Closing Date Net Asset Value Statement, the Buyer shall be entitled to have access to the books and records of the Seller and the work papers of the Seller prepared in connection with the preparation of the Closing Date Net Asset Value Statement and shall be entitled to discuss such books and records and work papers with the Seller and those persons responsible for the preparation thereof. In the event that in preparing the Buyer Closing Date Net Asset Value Statement the Buyer conducts a physical inventory, the Seller shall be entitled to have one or more representatives present during the conduct of such physical inventory. In addition, if the Buyer does not object to the Closing Date Net Asset Value as shown on the Closing Date Net Asset Value Statement within the 30-day period referred to above, the Closing Date Net Asset Value as reflected on the Closing Date Net Asset Value Statement as so prepared shall be deemed final and conclusive and binding upon the Seller and the Buyer. (iii) In the event the Seller does not agree with the Buyer Determined Closing Date Net Asset Value as reflected on the Buyer Closing Date Net Asset Value Statement, the Seller shall so inform the Buyer in writing within 30 days after the Seller’s receipt thereof, such writing to set forth the objections of the Seller in reasonable detail. If the Seller and the Buyer cannot reach agreement as to any disputed matter relating to the Closing Date Net Asset Value within 15 days after notification by the Seller to the Buyer of a dispute, they shall forthwith refer the dispute to a nationally recognized accounting firm mutually agreeable to the Seller and the Buyer for resolution, with the understanding that: (i) the Closing Date Net Asset Value, as finally determined by such firm, shall not be less than the amount thereof shown in Buyer’s Closing Date Net Asset Value Statement nor greater than the amount thereof shown in the Seller’s objection delivered pursuant to this clause (iii); and (ii) such firm shall resolve all disputed items within 20 days after such disputed items are referred to it. If the Buyer and the Seller are unable to agree on the choice of an accounting firm, then the Buyer and the Seller shall select a nationally recognized accounting firm by lot (after excluding their respective regular outside accounting firms). The decision of any such accounting firm under this clause (iii) with respect to all disputed matters relating to the Closing Date Net Asset Value shall be deemed final and conclusive and shall be binding upon the Seller and the Buyer. In addition, if the Seller does not object to the Buyer Determined Closing Date Net Asset Value within the 30-day period referred to above, the Buyer Determined Closing Date Net Asset Value as reflected on the Buyer Closing Date Net Asset Value Statement as so prepared shall be deemed final and conclusive and binding upon the Seller and the Buyer. (iv) The Seller shall be entitled to have access to the books and records of the Buyer and the work papers of the Buyer prepared in connection with the preparation of the Buyer Closing Date Net Asset Value Statement and shall be entitled to discuss such books and records and work papers with the Buyer and those persons responsible for the preparation thereof. The accounting firm selected pursuant to Section 2(g)(iii) shall be entitled to have access to the books and records of the Buyer and the Seller and the work papers of the Buyer and the Seller prepared in connection with the preparation of the Closing Date Net Asset Value Statement and the Buyer Closing Date Net Asset Value Statement and shall be entitled to discuss such books and records and work papers with the Buyer and the Seller and those persons responsible for the preparation thereof. (A) If the Closing Date Net Asset Value as finally determined pursuant to this Section 2(g) (the “Final Closing Date Net Asset Value”) exceeds $304,950 (such excess, if any, being referred to herein as the “Finally Determined Excess”) then the Buyer shall pay such amount by wire transfer to an account designated by the Seller within five (5) business days after the date upon which the Closing Date Net Asset Value is deemed final and conclusive pursuant hereto. (B) If the Final Closing Date Net Asset Value is less than $304,950 (such shortfall, if any, being referred to herein as the “Finally Determined Shortfall”) then the Seller shall pay such amount by wire transfer to an account designated by the Buyer within five (5) business days after the date upon which the Closing Date Net Asset Value is deemed final and conclusive pursuant hereto. (vi) If the Final Closing Date Net Asset Value is determined by an accounting firm under Section 2(g)(iii), and such determination results in a payment to the Seller, then the Buyer shall pay the aggregate fees and expenses of the accounting firm selected to finally determine the Closing Date Net Asset Value. If the Final Closing Date Net Asset Value is determined by an accounting firm under Section 2(g)(iii), and such determination results in a payment to the Buyer that is greater than the payment that would have been required to have been made to Buyer based on the Closing Date Net Asset Value Statement, or results in no payment to Buyer or Seller where a payment to Seller would have been required to have been made to Seller based on the Closing Date Net Asset Value Statement, then the Seller shall pay the aggregate fees and expenses of the accounting firm selected to finally determine the Closing Date Net Asset Value.
Appears in 1 contract
Sources: Asset Purchase Agreement (Natural Alternatives International Inc)
Net Asset Value Adjustment. (ia) Within Sellers have provided Purchaser with a certificate prepared in good faith of Sellers' estimate of the Net Asset Value of the Company as of August 22, 2001, which amount shall have added to it the amount of the liabilities listed on Section 2.2 of the Disclosure Schedule, the Downsizing Charges and the Retention Bonuses (the "ESTIMATED AUGUST 22, 2001 NET ASSET VALUE").
(b) For the purpose of calculating the August 22, 2001 Net Asset Value, Sellers and Purchaser shall conduct a joint physical inventory as of the close of business on August 22, 2001 of the Company's raw materials, work in process and finished goods at the lower of cost or market value consistent with the Company's past accounting practices, and Sellers shall perform the remaining calculations necessary to determine the Net Asset Value as of the close of business on August 22, 2001. As soon as practical following the Closing Date, and in any event within thirty (30) days of the Closingthereof, the Seller shall deliver to the Buyer an unaudited statement of the Closing Date Net Asset Value (the “Closing Date Net Asset Value Statement”). If the Closing Date Net Asset Value as shown on the Closing Date Net Asset Value Statement is less than $304,950, then the Purchase Price shall be decreased by an amount equal to the difference obtained by subtracting the amount of the Closing Date Net Asset Value from $304,950. If the Closing Date Net Asset Value as shown on the Closing Date Net Asset Value Statement is greater than $304,950, then the Purchase Price will be increased by an amount equal to the difference obtained by subtracting $304,950 from the amount of the Closing Date Net Asset Value.
(ii) If the Buyer disagrees with the Closing Date Net Asset Value as shown on the Closing Date Net Asset Value Statement, then as soon as practicable following the Closing Date (but not later than 30 days after the delivery thereof), the Buyer Sellers shall prepare and deliver to the Seller, its own statement Purchaser a schedule showing Sellers' calculation of the Net Asset Value as of 12:01 a.m.August 22, San Diego time, on the Closing Date 2001 (the “Buyer Closing Date "INITIAL AUGUST 22, 2001 NET ASSET VALUE STATEMENT").
(c) Sellers shall provide the Purchaser and its representatives with full access to the work papers of Sellers used to calculate the Initial August 22, 2001 Net Asset Value Statement” and . If Purchaser shall disagree with the Closing Date Net Asset Value as reflected on the Buyer Closing Date Net Asset Value Statement being referred to herein as the “Buyer Determined Closing Date Net Asset Value”). In preparing the Buyer Closing Date Initial August 22, 2001 Net Asset Value Statement, Purchaser shall notify Sellers' Representative of such disagreement, setting forth in detail the Buyer shall be entitled to have access to the books and records particulars of such disagreement within fifteen (15) days after its receipt of the Seller and the work papers of the Seller prepared in connection with the preparation of the Closing Date Initial August 22, 2001 Net Asset Value Statement and shall be entitled to discuss such books and records and work papers with the Seller and those persons responsible for the preparation thereofStatement. In the event that in preparing of any such notice of disagreement, the Buyer Closing Date Purchaser and Sellers Representative shall use their reasonable efforts for a period of thirty (30) days to resolve any disagreements with respect to the calculation of the August 22, 2001 Net Asset Value Statement (as defined below). If at the Buyer conducts a physical inventory, the Seller shall be entitled to have one or more representatives present during the conduct end of such physical inventoryperiod, they are unable to resolve any disagreements, Sellers' Representative and Purchaser hereby agree and elect to utilize the services of the accounting firm of Deloitte & Touche (the "ACCOUNTANTS") to resolve such disagreements. In additionThe Accountant shall resolve as promptly as practicable any such disagreements acting as experts and not as arbitrators. The determination of the Accountants shall (in the absence of manifest error) be final, if binding and conclusive on the Buyer does not object to parties. Sellers and Purchaser shall share equally the Closing Date fees and expenses incurred by the Accountants in resolving such disagreements. The date of the final resolution of the Net Asset Value as shown on the Closing Date Net Asset Value Statement within the 30-day period of August 22, 2001 shall be referred to above, as the Closing Date Net Asset Value as reflected on the Closing Date Net Asset Value Statement as so prepared "DETERMINATION DATE". The Purchase Price shall be deemed final and conclusive and binding upon the Seller and the Buyer.
(iii) In the event the Seller does not agree with the Buyer Determined Closing Date Net Asset Value adjusted as reflected on the Buyer Closing Date Net Asset Value Statement, the Seller shall so inform the Buyer in writing within 30 days after the Seller’s receipt thereof, such writing to set forth the objections of the Seller in reasonable detail. If the Seller and the Buyer cannot reach agreement as to any disputed matter relating to the Closing Date Net Asset Value within 15 days after notification by the Seller to the Buyer of a dispute, they shall forthwith refer the dispute to a nationally recognized accounting firm mutually agreeable to the Seller and the Buyer for resolution, with the understanding that: (i) the Closing Date Net Asset Value, as finally determined by such firm, shall not be less than the amount thereof shown in Buyer’s Closing Date Net Asset Value Statement nor greater than the amount thereof shown in the Seller’s objection delivered pursuant to this clause (iii); and (ii) such firm shall resolve all disputed items within 20 days after such disputed items are referred to it. If the Buyer and the Seller are unable to agree on the choice of an accounting firm, then the Buyer and the Seller shall select a nationally recognized accounting firm by lot (after excluding their respective regular outside accounting firms). The decision of any such accounting firm under this clause (iii) with respect to all disputed matters relating to the Closing Date Net Asset Value shall be deemed final and conclusive and shall be binding upon the Seller and the Buyer. In addition, if the Seller does not object to the Buyer Determined Closing Date Net Asset Value within the 30-day period referred to above, the Buyer Determined Closing Date Net Asset Value as reflected on the Buyer Closing Date Net Asset Value Statement as so prepared shall be deemed final and conclusive and binding upon the Seller and the Buyer.
(iv) The Seller shall be entitled to have access to the books and records of the Buyer and the work papers of the Buyer prepared in connection with the preparation of the Buyer Closing Date Net Asset Value Statement and shall be entitled to discuss such books and records and work papers with the Buyer and those persons responsible for the preparation thereof. The accounting firm selected pursuant to Section 2(g)(iii) shall be entitled to have access to the books and records of the Buyer and the Seller and the work papers of the Buyer and the Seller prepared in connection with the preparation of the Closing Date Net Asset Value Statement and the Buyer Closing Date Net Asset Value Statement and shall be entitled to discuss such books and records and work papers with the Buyer and the Seller and those persons responsible for the preparation thereof.
(A) If the Closing Date Net Asset Value as finally determined pursuant to this Section 2(g) (the “Final Closing Date Net Asset Value”) exceeds $304,950 (such excess, if any, being referred to herein as the “Finally Determined Excess”) then the Buyer shall pay such amount by wire transfer to an account designated by the Seller within five (5) business days after the date upon which the Closing Date Net Asset Value is deemed final and conclusive pursuant hereto.
(B) If the Final Closing Date Net Asset Value is less than $304,950 (such shortfall, if any, being referred to herein as the “Finally Determined Shortfall”) then the Seller shall pay such amount by wire transfer to an account designated by the Buyer within five (5) business days after the date upon which the Closing Date Net Asset Value is deemed final and conclusive pursuant hereto.
(vi) If the Final Closing Date Net Asset Value is determined by an accounting firm under Section 2(g)(iii), and such determination results in a payment to the Seller, then the Buyer shall pay the aggregate fees and expenses of the accounting firm selected to finally determine the Closing Date Net Asset Value. If the Final Closing Date Net Asset Value is determined by an accounting firm under Section 2(g)(iii), and such determination results in a payment to the Buyer that is greater than the payment that would have been required to have been made to Buyer based on the Closing Date Net Asset Value Statement, or results in no payment to Buyer or Seller where a payment to Seller would have been required to have been made to Seller based on the Closing Date Net Asset Value Statement, then the Seller shall pay the aggregate fees and expenses of the accounting firm selected to finally determine the Closing Date Net Asset Value.follows:
Appears in 1 contract
Net Asset Value Adjustment. (ia) Within thirty (30) days of the Closing, the Seller The Sellers shall deliver to the Buyer an unaudited a statement of setting forth the Closing Date Net Asset Value (the “Closing Date Net Asset Value Statement”). If the Closing Date Net Asset Value as shown on the Closing Date Net Asset Value Statement is less than $304,950, then the Purchase Price shall be decreased by an amount equal to the difference obtained by subtracting the amount of the Closing Date Net Asset Value from $304,950. If the Closing Date Net Asset Value as shown on the Closing Date Net Asset Value Statement is greater than $304,950, then the Purchase Price will be increased by an amount equal to the difference obtained by subtracting $304,950 from the amount of the Closing Date Net Asset Value.
(ii) If the Buyer disagrees with the Closing Date Net Asset Value as shown on the Closing Date Net Asset Value Statement, then as soon as practicable following the Closing Date (but not later than 30 days after the delivery thereof), the Buyer shall prepare and deliver to the Seller, its own statement Sellers’ good faith estimate of the Net Asset Value of the Company as of 12:01 a.m., San Diego time, a.m. on the Closing Date (the “Buyer Estimated Net Asset Value”) (as illustrated on Schedule 1.1(a) hereto), which statement shall be prepared in accordance with GAAP applied on a consistent basis with the Company’s pre-Closing Date methodologies used in preparation of monthly unaudited balance sheets, together with reasonably detailed supporting documentation for such calculation.
(b) If the Estimated Net Asset Value Statement” is:
(1) Greater than $750,000 (the “Target Net Asset Value”), the Closing Purchase Price shall be increased by a dollar amount equal to the difference between the Estimated Net Asset Value and the Target Net Asset Value; or
(2) Less than the Target Net Asset Value, the Closing Purchase Price shall be decreased by a dollar amount equal to the difference between the Target Net Asset Value and the Estimated Net Asset Value.
(c) As promptly as practicable after the Closing (but no later than sixty (60) days after the Closing Date), the Sellers shall deliver to the Buyer a statement setting forth the Sellers’ good faith calculation of the Net Asset Value of the Company as of the Closing Date Net Asset Value as reflected on the Buyer Closing Date Net Asset Value Statement being referred to herein as (the “Buyer Determined Closing Date Net Asset Value”). In preparing Such calculation shall be based upon an unaudited balance sheet prepared in accordance with GAAP (except for the exceptions to GAAP as set forth on Schedule 2.4(c)), applied on a consistent basis with the Company’s pre-Closing methodologies in the preparation of monthly unaudited balance sheets (as illustrated on Schedule 1.1(a) hereto). If the Buyer disagrees with the Sellers’ calculation of the Closing Date Net Asset Value Statementdelivered pursuant to this Section 2.4(c), the Buyer shall be entitled to have access to the books and records may, within twenty (20) days after receipt of the Seller and the work papers of the Seller prepared in connection with the preparation of statement containing the Closing Date Net Asset Value Statement and shall be entitled to discuss such books and records and work papers with the Seller and those persons responsible for the preparation thereof. In the event that in preparing the Buyer Closing Date Net Asset Value Statement the Buyer conducts a physical inventory, the Seller shall be entitled to have one or more representatives present during the conduct of such physical inventory. In addition, if the Buyer does not object to the Closing Date Net Asset Value as shown on the Closing Date Net Asset Value Statement within the 30-day period referred to above, the Closing Date Net Asset Value as reflected on the Closing Date Net Asset Value Statement as so prepared shall be deemed final and conclusive and binding upon the Seller and the Buyer.
(iii) In the event the Seller does not agree with the Buyer Determined Closing Date Net Asset Value as reflected on the Buyer Closing Date Net Asset Value Statement, the Seller shall so inform the Buyer in writing within 30 days after the Seller’s receipt thereof, such writing to set forth the objections of the Seller in reasonable detail. If the Seller and the Buyer cannot reach agreement as to any disputed matter relating to the Closing Date Net Asset Value within 15 days after notification by the Seller to the Buyer of a dispute, they shall forthwith refer the dispute to a nationally recognized accounting firm mutually agreeable to the Seller and the Buyer for resolution, with the understanding that: (i) the Closing Date Net Asset Value, deliver a notice to the Sellers disagreeing with such calculation and setting forth the Buyer’s calculation of such amount. Any such notice of disagreement shall specify in reasonable detail those items or amounts as finally determined by to which the Buyer disagrees. If a notice of disagreement shall be duly delivered pursuant to this Section 2.4(c), the Sellers and the Buyer shall, during the twenty (20) days after such firmdelivery, use their commercially reasonable efforts to reach agreement on the disputed items or amounts in order to determine, as may be required, the amount of the Closing Net Asset Value, which amount shall not be more than the amount thereof shown in the Sellers’ calculation delivered pursuant to this Section 2.4(c) nor less than the amount thereof shown in the Buyer’s calculation delivered pursuant to this Section 2.4(c). If during such period, the Sellers and the Buyer are unable to reach such agreement, they shall promptly thereafter (and in any event within twenty (20) days of the end of such 10-day period) cause an Accounting Referee to review this Agreement and the disputed items or amounts for the purpose of calculating the Closing Date Net Asset Value Statement nor greater (it being understood that in making such calculation, the Accounting Referee shall be functioning as an expert and not as an arbitrator). The Accounting Referee shall deliver to the Sellers and the Buyer as promptly as practicable (but in any case no later than thirty (30) days from the date of engagement of the Accounting Referee), a report setting forth such calculation. Such report shall be final and binding upon the Sellers and the Buyer. The cost of such review shall be borne equally by the Sellers, on the one hand and the Buyer, on the other hand. The Buyer and the Sellers shall, and shall cause their respective representatives to, and the Buyer shall cause the Company and its respective representatives (including outside auditors) to, cooperate and assist in the determination of the Closing Net Asset Value and in the conduct of the review set forth in this Section 2.4, including making available, to the extent necessary, books, records, work papers and personnel.
(d) If the Net Asset Value as conclusively determined as provided in Sections 2.4(c) (the “Final Net Asset Value”) is:
(1) Greater than the amount thereof shown Target Net Asset Value, the Buyer shall pay to the Sellers, in the Seller’s objection delivered manner provided in Section 2.4(e), the amount equal to the difference between the Final Net Asset Value and the Target Net Asset Value, minus the amount of any Closing Purchase Price increase made at Closing pursuant to Section 2.4(b)(1) or plus the amount of any Closing Purchase Price decrease made at Closing pursuant to Section 2.4(b)(2); provided, however, that if the amount determined pursuant to this clause (iii); and (iid)(1) is a negative number, the Sellers shall pay the absolute value of such firm shall resolve all disputed items within 20 days after such disputed items are referred to it. If the Buyer and the Seller are unable to agree on the choice of an accounting firm, then the Buyer and the Seller shall select a nationally recognized accounting firm by lot (after excluding their respective regular outside accounting firms). The decision of any such accounting firm under this clause (iii) with respect to all disputed matters relating amount to the Closing Date Buyer; or
(2) Less than the Target Net Asset Value, the Sellers shall pay to the Buyer, in the manner provided in Section 2.4(e), the amount equal to the difference between the Target Net Asset Value shall be deemed final and conclusive and shall be binding upon the Seller and the Buyer. In addition, if the Seller does not object to the Buyer Determined Closing Date Final Net Asset Value within Value, minus the 30-day period referred to above, the Buyer Determined amount of any Closing Date Net Asset Value as reflected on the Buyer Purchase Price decrease made at Closing Date Net Asset Value Statement as so prepared shall be deemed final and conclusive and binding upon the Seller and the Buyer.
(iv) The Seller shall be entitled to have access to the books and records of the Buyer and the work papers of the Buyer prepared in connection with the preparation of the Buyer Closing Date Net Asset Value Statement and shall be entitled to discuss such books and records and work papers with the Buyer and those persons responsible for the preparation thereof. The accounting firm selected pursuant to Section 2(g)(iii2.4(b)(2) shall be entitled or plus the amount of any Closing Purchase Price increase made at Closing pursuant to have access to Section 2.4(b)(1); provided, however, that if the books and records of the Buyer and the Seller and the work papers of the Buyer and the Seller prepared in connection with the preparation of the Closing Date Net Asset Value Statement and the Buyer Closing Date Net Asset Value Statement and shall be entitled to discuss such books and records and work papers with the Buyer and the Seller and those persons responsible for the preparation thereof.
(A) If the Closing Date Net Asset Value as finally amount determined pursuant to this Section 2(gclause (d)(2) (the “Final Closing Date Net Asset Value”) exceeds $304,950 (such excessis a negative number, if any, being referred to herein as the “Finally Determined Excess”) then the Buyer shall pay the absolute value of such amount by wire transfer to an account designated by the Seller Sellers; or
(e) Any payment pursuant to Section 2.4(d) shall be made at a mutually convenient time and place within five (5) business days Business Days after the date upon which the Closing Date Final Net Asset Value is deemed final and conclusive has been determined pursuant heretoto Section 2.4(c).
(B) If the Final Closing Date Net Asset Value is less than $304,950 (such shortfall, if any, being referred to herein as the “Finally Determined Shortfall”) then the Seller shall pay such amount by wire transfer to an account designated by the Buyer within five (5) business days after the date upon which the Closing Date Net Asset Value is deemed final and conclusive pursuant hereto.
(vi) If the Final Closing Date Net Asset Value is determined by an accounting firm under Section 2(g)(iii), and such determination results in a payment to the Seller, then the Buyer shall pay the aggregate fees and expenses of the accounting firm selected to finally determine the Closing Date Net Asset Value. If the Final Closing Date Net Asset Value is determined by an accounting firm under Section 2(g)(iii), and such determination results in a payment to the Buyer that is greater than the payment that would have been required to have been made to Buyer based on the Closing Date Net Asset Value Statement, or results in no payment to Buyer or Seller where a payment to Seller would have been required to have been made to Seller based on the Closing Date Net Asset Value Statement, then the Seller shall pay the aggregate fees and expenses of the accounting firm selected to finally determine the Closing Date Net Asset Value.
Appears in 1 contract
Net Asset Value Adjustment. (ia) Within thirty Promptly following the date of this Agreement, but no later than ten (3010) days of prior to the ClosingClosing Date, the Seller Company shall deliver cause to be prepared and delivered to Parent the Buyer an unaudited statement Pre-Closing Statement (as defined below) and a certificate based on such Pre-Closing Statement setting forth the Company's calculation of the estimated Closing Date Net Asset Value (the “Closing Date Net Asset Value Statement”as defined below). If The pre-closing statement (the "Pre-Closing Date Net Asset Value as shown on Statement") shall present the Closing Date Net Asset Value Statement is less than $304,950, then the Purchase Price shall be decreased by an amount equal to the difference obtained by subtracting the amount Company's estimate of the Closing Date Net Asset Value from $304,950. If the Closing Date Net Asset Value as shown on the Closing Date Net Asset Value Statement is greater than $304,950, then the Purchase Price will be increased by an amount equal to the difference obtained by subtracting $304,950 from the amount of the Closing Date Net Asset Value.
(ii) If the Buyer disagrees with the Closing Date Net Asset Value as shown on the Closing Date Net Asset Value Statement, then as soon as practicable following the Closing Date (but not later than 30 days after the delivery thereof), the Buyer shall prepare and deliver to the Seller, its own statement of the Net Asset Value as of 12:01 a.m., San Diego time, the close of business on the Closing Date (after giving effect to the “Buyer Closing Date Net Asset Value Statement” payment of all obligations and the Closing Date Net Asset Value as reflected liabilities set forth on the Buyer Closing Date Net Asset Value Statement being referred to herein as the “Buyer Determined Closing Date Allocation Spreadsheet ("Estimated Net Asset Value”"). In preparing the Buyer Closing Date "Net Asset Value Statement, Value" means the Buyer shall be entitled to have access to the books and records consolidated current assets of the Seller Company and its Subsidiaries, reduced by the work papers consolidated liabilities of the Seller prepared Company and its Subsidiaries, in connection each case as determined in accordance with GAAP, applied using the same accounting methods, practices, principles, policies and procedures, with consistent classifications that were used in the preparation of the Closing Date Net Asset Value Statement and shall be entitled to discuss such books and records and work papers with the Seller and those persons responsible Company's audited Financial Statements for the preparation thereofmost recent fiscal year end. In the event that in preparing the Buyer Closing Date Net Asset Value Statement the Buyer conducts a physical inventory, the Seller shall be entitled to have one or more representatives present during the conduct of such physical inventory. In addition, if the Buyer does not object to the Closing Date Net Asset Value as shown on the Closing Date Net Asset Value Statement within the 30-day period referred to above, the Closing Date Net Asset Value as reflected on the Closing Date Net Asset Value Statement as so prepared shall be deemed final and conclusive and binding upon the Seller and the Buyer.
(iii) In the event the Seller does not agree with the Buyer Determined Closing Date Net Asset Value as reflected on the Buyer Closing Date Net Asset Value Statement, the Seller shall so inform the Buyer in writing within 30 days after the Seller’s receipt thereof, such writing to set forth the objections of the Seller in reasonable detail. If the Seller and the Buyer cannot reach agreement as to any disputed matter relating to the Closing Date Net Asset Value within 15 days after notification by the Seller to the Buyer of a dispute, they shall forthwith refer the dispute to a nationally recognized accounting firm mutually agreeable to the Seller and the Buyer for resolution, with the understanding that: (i) the Closing Date Net Asset Value, as finally determined by such firm, shall not be less than the amount thereof shown in Buyer’s Closing Date Net Asset Value Statement nor greater than the amount thereof shown in the Seller’s objection delivered pursuant to this clause (iii); and (ii) such firm shall resolve all disputed items within 20 days after such disputed items are referred to it. If the Buyer and the Seller are unable to agree on the choice of an accounting firm, then the Buyer and the Seller shall select a nationally recognized accounting firm by lot (after excluding their respective regular outside accounting firms). The decision of any such accounting firm under this clause (iii) with respect to all disputed matters relating to the Closing Date Net Asset Value shall be deemed final and conclusive exclude all deferred revenue except Qualified Deferred Revenue and shall be binding upon the Seller include a reasonable estimate of all COBRA Continuation Costs. Parent and the Buyer. In addition, if Company shall agree on the Seller does not object calculations set forth in the Pre-Closing Statement prior to the Buyer Determined Closing Date Net Asset Value within the 30-day period referred to above, the Buyer Determined Closing Date Net Asset Value as reflected on the Buyer Closing Date Net Asset Value Statement as so prepared shall be deemed final and conclusive and binding upon the Seller and the Buyer.
(iv) The Seller shall be entitled to have access to the books and records of the Buyer and the work papers of the Buyer prepared in connection with the preparation of the Buyer Closing Date Net Asset Value Statement and shall be entitled to discuss such books and records and work papers with the Buyer and those persons responsible for the preparation thereofDate. The accounting firm selected pursuant to Section 2(g)(iii) shall be entitled to have access to the books and records of the Buyer and the Seller and the work papers of the Buyer and the Seller prepared in connection with the preparation of the Closing Date Net Asset Value Statement and the Buyer Closing Date Net Asset Value Statement and shall be entitled to discuss such books and records and work papers with the Buyer and the Seller and those persons responsible for the preparation thereof.
(A) If the Closing Date Net Asset Value as finally determined pursuant to this Section 2(g) (the “Final Closing Date Net Asset Value”) exceeds $304,950 (such excess, if any, being referred to herein as the “Finally Determined Excess”) then the Buyer shall pay such amount by wire transfer to an account designated by the Seller within five (5) business days after the date upon which the Closing Date Net Asset Value is deemed final and conclusive pursuant hereto.
(B) If the Final Closing Date Estimated Net Asset Value is less than One Dollar ($304,950 (such shortfall1), if any, being referred the amount set forth in the final Allocation Spreadsheet next to herein the heading "holdback amount" delivered to Parent in accordance with the last sentence of Section 1.6(a) shall be adjusted as the “Finally Determined Shortfall”) then the Seller shall pay such amount by wire transfer to an account designated by the Buyer within five (5) business days after the date upon which of the Closing Date Net Asset Value is deemed final and conclusive pursuant hereto.
to equal the amount obtained by multiplying (vix) If the Final Closing Date Net Asset Value is determined amount of such difference by an accounting firm under (y) 1.125 (as adjusted in accordance with this Section 2(g)(iii1.7(a), and such determination results in a the "Holdback Amount"). Subject to any payment by Parent required pursuant to Section 1.7(f), the Holdback Amount shall be deducted from the aggregate consideration to be paid by Parent to the Seller, then holders of Company Capital Stock at the Buyer shall pay Effective Time in accordance with the aggregate fees and expenses of the accounting firm selected to finally determine the Closing Date Net Asset Value. If the Final Closing Date Net Asset Value is determined by an accounting firm under Section 2(g)(iii), and such determination results in a payment to the Buyer that is greater than the payment that would have been required to have been made to Buyer based on the Closing Date Net Asset Value Statement, or results in no payment to Buyer or Seller where a payment to Seller would have been required to have been made to Seller based on the Closing Date Net Asset Value Statement, then the Seller shall pay the aggregate fees and expenses of the accounting firm selected to finally determine the Closing Date Net Asset ValueAllocation Spreadsheet.
Appears in 1 contract
Net Asset Value Adjustment. (i) Within thirty (30) days of the Closing, the Seller shall deliver to the Buyer an unaudited statement of the Closing Date Net Asset Value (the “Closing Date Net Asset Value Statement”). If the Closing Date Net Asset Value as shown on the Closing Date Net Asset Value Statement is less than $304,950, then the A. The Purchase Price shall be decreased by an amount equal subject to the difference obtained by subtracting the amount of the Closing Date adjustment (a “Net Asset Value from $304,950. If the Closing Date Net Asset Value as shown on the Closing Date Net Asset Value Statement is greater than $304,950, then the Purchase Price will be increased by an amount equal Adjustment”), on a dollar-for-dollar basis, if and to the difference obtained by subtracting $304,950 from extent that the amount of the Closing Date Net Asset Value.
(ii) If the Buyer disagrees with the Closing Date Net Asset Value as shown on the Closing Date Net Asset Value Statement, then as soon as practicable following the Closing Date (but not later than 30 days after the delivery thereof), the Buyer shall prepare and deliver to the Seller, its own statement of the Net Asset Value as of 12:01 a.m., San Diego time, on the Closing Date (the “Buyer Closing Date Net Asset Value Statement” and the Closing Date Company Net Asset Value as reflected on the Buyer Closing Date Net Asset Value Statement being referred to herein Company’s balance sheet as of January 27, 2007 attached hereto as Exhibit 2.3(d)(i)(A) (the “Buyer Determined Closing Date January 2007 Balance Sheet”), which equals $19,615,000 (the “January 2007 Net Asset Value”). In preparing , is greater or less than the Buyer Closing Date Company Net Asset Value Statementas 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 such that it accurately reflects and quantifies both the Closing Net Asset Value and the Closing Debt Repayment Amount.
B. If the January 2007 Net Asset Value is less than the Closing Net Asset Value, then (i) the Purchase Price shall be increased on a dollar-for-dollar basis in an amount equal to the difference, 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.
C. If the January 2007 Net Asset Value is greater than the Closing Net Asset Value, then (i) the Purchase Price shall be decreased on a dollar-for-dollar basis in an amount equal to the difference and (ii) the Buyer shall be entitled to have access to the books receive as soon as practicable (and records of the Seller and the work papers of the Seller prepared in connection with the preparation of the Closing Date Net Asset Value Statement and shall be entitled to discuss such books and records and work papers with the Seller and those persons responsible for the preparation thereof. In the any event that in preparing the Buyer Closing Date Net Asset Value Statement the Buyer conducts a physical inventory, the Seller shall be entitled to have one or more representatives present during the conduct of such physical inventory. In addition, if the Buyer does not object to the Closing Date Net Asset Value as shown on the Closing Date Net Asset Value Statement within the 30-day period referred to above, the Closing Date Net Asset Value as reflected on the Closing Date Net Asset Value Statement as so prepared shall be deemed final and conclusive and binding upon the Seller and the Buyer.
three (iii) In the event the Seller does not agree with the Buyer Determined Closing Date Net Asset Value as reflected on the Buyer Closing Date Net Asset Value Statement, the Seller shall so inform the Buyer in writing within 30 days after the Seller’s receipt thereof, such writing to set forth the objections of the Seller in reasonable detail. If the Seller and the Buyer cannot reach agreement as to any disputed matter relating to the Closing Date Net Asset Value within 15 days after notification by the Seller to the Buyer of a dispute, they shall forthwith refer the dispute to a nationally recognized accounting firm mutually agreeable to the Seller and the Buyer for resolution, with the understanding that: (i) the Closing Date Net Asset Value, as finally determined by such firm, shall not be less than the amount thereof shown in Buyer’s Closing Date Net Asset Value Statement nor greater than the amount thereof shown in the Seller’s objection delivered pursuant to this clause (iii); and (ii) such firm shall resolve all disputed items within 20 days after such disputed items are referred to it. If the Buyer and the Seller are unable to agree on the choice of an accounting firm, then the Buyer and the Seller shall select a nationally recognized accounting firm by lot (after excluding their respective regular outside accounting firms). The decision of any such accounting firm under this clause (iii) with respect to all disputed matters relating to the Closing Date Net Asset Value shall be deemed final and conclusive and shall be binding upon the Seller and the Buyer. In addition, if the Seller does not object to the Buyer Determined Closing Date Net Asset Value within the 30-day period referred to above, the Buyer Determined Closing Date Net Asset Value as reflected on the Buyer Closing Date Net Asset Value Statement as so prepared shall be deemed final and conclusive and binding upon the Seller and the Buyer.
(iv) The Seller shall be entitled to have access to the books and records of the Buyer and the work papers of the Buyer prepared in connection with the preparation of the Buyer Closing Date Net Asset Value Statement and shall be entitled to discuss such books and records and work papers with the Buyer and those persons responsible for the preparation thereof. The accounting firm selected pursuant to Section 2(g)(iii) shall be entitled to have access to the books and records of the Buyer and the Seller and the work papers of the Buyer and the Seller prepared in connection with the preparation of the Closing Date Net Asset Value Statement and the Buyer Closing Date Net Asset Value Statement and shall be entitled to discuss such books and records and work papers with the Buyer and the Seller and those persons responsible for the preparation thereof.
(A) If the Closing Date Net Asset Value as finally determined pursuant to this Section 2(g) (the “Final Closing Date Net Asset Value”) exceeds $304,950 (such excess, if any, being referred to herein as the “Finally Determined Excess”) then the Buyer shall pay such amount by wire transfer to an account designated by the Seller within five (53) business days after the date upon which final determination of the Closing Date Net Asset Value is deemed final and conclusive pursuant hereto.
(B) If the Final Closing Date Net Asset Value is less than $304,950 (such shortfall, if any, being referred to herein as the “Finally Determined Shortfall”) then the Seller shall pay such amount by wire transfer to an account designated by the Buyer within five (5) business days after the date upon which the Closing Date Net Asset Value is deemed final and conclusive pursuant hereto.
(vi) If the Final Closing Date Net Asset Value is determined by an accounting firm under Section 2(g)(iii), and such determination results in a payment to the Seller, then the Buyer shall pay the aggregate fees and expenses of the accounting firm selected to finally determine the Closing Date Net Asset Value. If the Final Closing Date Net Asset Value is determined by ) an accounting firm under Section 2(g)(iii), and such determination results in a payment amount equal to the difference, payable by the Majority Stockholders on a pro rata basis in proportion to the Participation Percentage of the respective Majority Stockholder, either (at the election of the applicable Majority Stockholder) (I) in Buyer that is greater than Stock from the payment that would have been required applicable Majority Stockholder, to have been made to the extent received and still owned by such Majority Stockholder, which Buyer based Stock shall be valued at the average closing price of shares of the Buyer Stock on the Closing Date Net Asset Value StatementNasdaq Global Market for the period of twenty (20) consecutive trading days ending on the date such shares of Buyer Stock are tendered by the applicable Majority Stockholder in accordance herewith, or results (II) in no payment to Buyer or Seller where a payment to Seller would have been required to have been made to Seller based on the Closing Date Net Asset Value Statement, then the Seller shall pay the aggregate fees and expenses of the accounting firm selected to finally determine the Closing Date Net Asset Valuecash.
Appears in 1 contract
Sources: Merger Agreement (Pc Mall Inc)
Net Asset Value Adjustment. (ia) Within thirty Two Business Days prior to the Closing, Rexam PLC shall provide Purchaser with a certificate prepared in good faith of Rexam PLC's estimate of the Net Asset Value of the Subject Companies (30the "Estimated Net Asset Value") days as of the Closing. Net Asset Value calculations shall be prepared in accordance with the Net Asset Value Calculation Schedule attached hereto as Schedule 1.5
(a) For purposes of calculating the Estimated Net Asset Value, the Seller parties hereby agree that Rexam PLC shall use the Exchange Rate in effect as of two Business Days prior to the Closing.
(b) For the purpose of calculating the Closing Date Net Asset Value, Rexam PLC and the Purchaser shall jointly conduct a physical inventory as of an agreed upon date of the Subject Companies' raw materials, work in process and finished goods which shall be valued at the lower of cost or market value consistent with Rexam Accounting Policies with an appropriate writedown of any damaged, obsolete or otherwise nonconforming raw materials, work in progress and finished goods. Rexam PLC shall perform the remaining calculations necessary to determine the Net Asset Value as of the close of business on the Closing Date. As soon as practical following the Closing Date and in any event within 30 days thereof, Rexam PLC shall prepare and deliver to Purchaser a schedule showing Rexam PLC's calculation of the Buyer an unaudited statement Net Asset Value as of the Closing Date (the "Initial Net Asset Value Statement"). For purposes of calculating the Initial Net Asset Value Statement, the parties hereby agree that Rexam PLC shall use the Exchange Rate in effect as of the Closing Date as determined in accordance with Rexam Accounting Policies.
(c) Rexam PLC shall provide the Purchaser and its representatives with full access to the work papers of Rexam PLC used to calculate the Initial Net Asset Value Statement. If Purchaser disagrees with the Initial Net Asset Value Statement, Purchaser shall notify Rexam PLC of such disagreement, setting forth in detail the particulars of such disagreement within 15 days after its receipt of the Initial Net Asset Value Statement. In the event of any such notice of disagreement, the Purchaser and Rexam PLC shall use their reasonable efforts for a period of 30 days to resolve any disagreements with respect to the calculation of the Closing Date Net Asset Value (the “Closing Date Net Asset Value Statement”as defined below). If at the Closing Date Net Asset Value end of such period, they are unable to resolve any disagreements, Rexam PLC and Purchaser shall select an independent accounting firm of nationally recognized standing other than a firm that is the primary accountant for either Purchaser or the Selling Parties (the "Accountants"), to resolve such disagreements. The Accountants shall resolve as shown promptly as practicable any such disagreements acting as experts and not as arbitrators. The determination of the Accountants shall (in the absence of manifest error) be final, binding and conclusive on the Closing Date Net Asset Value Statement is less than $304,950, then parties. Rexam PLC and Purchaser shall share equally the Purchase Price shall be decreased fees and expenses incurred by an amount equal to the difference obtained by subtracting the amount Accountants in resolving such disagreements. The date of the Closing Date Net Asset Value from $304,950. If the Closing Date Net Asset Value as shown on the Closing Date Net Asset Value Statement is greater than $304,950, then the Purchase Price will be increased by an amount equal to the difference obtained by subtracting $304,950 from the amount of the Closing Date Net Asset Value.
(ii) If the Buyer disagrees with the Closing Date Net Asset Value as shown on the Closing Date Net Asset Value Statement, then as soon as practicable following the Closing Date (but not later than 30 days after the delivery thereof), the Buyer shall prepare and deliver to the Seller, its own statement final resolution of the Net Asset Value as of 12:01 a.m., San Diego time, on the Closing Date (shall be referred to as the “Buyer Closing Date Net Asset Value Statement” and "Determination Date". The amount of the Closing Date Net Asset Value as reflected on the Buyer Closing Date Net Asset Value Statement being referred to herein as the “Buyer Determined Closing Date Net Asset Value”). In preparing the Buyer Closing Date Net Asset Value Statement, the Buyer shall be entitled to have access to the books and records of the Seller and the work papers of the Seller prepared in connection with the preparation of the Closing Date Net Asset Value Statement and shall be entitled to discuss such books and records and work papers with the Seller and those persons responsible for the preparation thereof. In the event that in preparing the Buyer Closing Date Net Asset Value Statement the Buyer conducts a physical inventory, the Seller shall be entitled to have one or more representatives present during the conduct of such physical inventory. In addition, if the Buyer does not object to the Closing Date Net Asset Value as shown on the Closing Date Net Asset Value Statement within the 30-day period referred to above, the Closing Date Net Asset Value as reflected on the Closing Date Net Asset Value Statement as so prepared shall be deemed final and conclusive and binding upon the Seller and the Buyer.
(iii) In the event the Seller does not agree with the Buyer Determined Closing Date Net Asset Value as reflected on the Buyer Closing Date Net Asset Value Statement, the Seller shall so inform the Buyer in writing within 30 days after the Seller’s receipt thereof, such writing to set forth the objections of the Seller in reasonable detail. If the Seller and the Buyer cannot reach agreement as to any disputed matter relating to the Closing Date Net Asset Value within 15 days after notification by the Seller to the Buyer of a dispute, they shall forthwith refer the dispute to a nationally recognized accounting firm mutually agreeable to the Seller and the Buyer for resolution, with the understanding that: (i) the Closing Date Net Asset Value, as finally determined by such firm, shall not be less than the amount thereof shown in Buyer’s Closing Date Net Asset Value Statement nor greater than the amount thereof shown in the Seller’s objection delivered pursuant to this clause (iii); and (ii) such firm shall resolve all disputed items within 20 days after such disputed items are referred to it. If the Buyer and the Seller are unable to agree on the choice of an accounting firm, then the Buyer and the Seller shall select a nationally recognized accounting firm by lot (after excluding their respective regular outside accounting firms). The decision of any such accounting firm under this clause (iii) with respect to all disputed matters relating to the Closing Date Net Asset Value shall be deemed final and conclusive and shall be binding upon the Seller and the Buyer. In addition, if the Seller does not object to the Buyer Determined Closing Date Net Asset Value within the 30-day period referred to above, the Buyer Determined Closing Date Net Asset Value as reflected on the Buyer Closing Date Net Asset Value Statement as so prepared shall be deemed final and conclusive and binding upon the Seller and the Buyer.
(iv) The Seller shall be entitled to have access to the books and records of the Buyer and the work papers of the Buyer prepared in connection with the preparation of the Buyer Closing Date Net Asset Value Statement and shall be entitled to discuss such books and records and work papers with the Buyer and those persons responsible for the preparation thereof. The accounting firm selected pursuant to Section 2(g)(iii) shall be entitled to have access to the books and records of the Buyer and the Seller and the work papers of the Buyer and the Seller prepared in connection with the preparation of the Closing Date Net Asset Value Statement and the Buyer Closing Date Net Asset Value Statement and shall be entitled to discuss such books and records and work papers with the Buyer and the Seller and those persons responsible for the preparation thereof.
(A) If the Closing Date Net Asset Value as finally determined pursuant to this Section 2(g1.5(c) (is referred to herein as the “Final "Closing Date Net Asset Value”) exceeds $304,950 (such excess, if any, being referred to herein as the “Finally Determined Excess”) then the Buyer shall pay such amount by wire transfer to an account designated by the Seller within five (5) business days after the date upon which the Closing Date Net Asset Value is deemed final and conclusive pursuant hereto".
(Bd) If the Final Closing Date Net Asset Value is less than $304,950 (such shortfall, if any, being referred to herein The Purchase Price shall be adjusted as the “Finally Determined Shortfall”) then the Seller shall pay such amount by wire transfer to an account designated by the Buyer within five (5) business days after the date upon which the Closing Date Net Asset Value is deemed final and conclusive pursuant hereto.
(vi) If the Final Closing Date Net Asset Value is determined by an accounting firm under Section 2(g)(iii), and such determination results in a payment to the Seller, then the Buyer shall pay the aggregate fees and expenses of the accounting firm selected to finally determine the Closing Date Net Asset Value. If the Final Closing Date Net Asset Value is determined by an accounting firm under Section 2(g)(iii), and such determination results in a payment to the Buyer that is greater than the payment that would have been required to have been made to Buyer based on the Closing Date Net Asset Value Statement, or results in no payment to Buyer or Seller where a payment to Seller would have been required to have been made to Seller based on the Closing Date Net Asset Value Statement, then the Seller shall pay the aggregate fees and expenses of the accounting firm selected to finally determine the Closing Date Net Asset Value.follows:
Appears in 1 contract
Sources: Purchase Agreement (Fibermark Inc)
Net Asset Value Adjustment. (i) Within thirty No later than ten (3010) business days of after the Closing, the Seller shall deliver to the Buyer an unaudited statement of the Closing Date Net Asset Value which will be in the same format as Exhibit C hereto, including with respect to exhibits and schedules (the “Closing Date Net Asset Value Statement”), together with (A) a certificate of an authorized officer of the Seller stating that the Closing Date Net Asset Value Statement was prepared in accordance with Seller’s Past Practice and (B) an updated Schedule 2 (listing of Assumed Purchase Orders) which updated Schedule 2 will be in the same format as Schedule 2 attached hereto and will reflect the open purchase orders related to the Business as of 11:59 p.m., New York City time on the Closing Date. If The Buyer shall notify the Seller, in writing, within ten (10) business days of Seller’s delivery of the Closing Date Net Asset Value Statement whether it agrees or disagrees with the Closing Date Net Asset Value as shown on the Closing Date Net Asset Value Statement is less than $304,950, then Statement. If the Purchase Price shall be decreased by an amount equal to the difference obtained by subtracting the amount of Buyer agrees with the Closing Date Net Asset Value from $304,950. If Statement, then the Closing Date Net Asset Value as shown on shall be deemed to be the Final Closing Date Net Asset Value Statement is greater than $304,950(as defined below) and, then the Purchase Price will be increased by an amount equal subject to the difference obtained by subtracting $304,950 from the amount provisions of the Closing Date Net Asset Valuelast sentence of Section 2(g)(v), below, the relevant Party shall make the payment, if any, required of it pursuant to such Section 2(g)(v).
(ii) If the Buyer disagrees with the Closing Date Net Asset Value as shown on the Closing Date Net Asset Value Statement, then as soon as practicable following the Closing Date (but not later than 30 days after the delivery thereofdate upon which Seller delivers the Closing Date Net Asset Value Statement), the Buyer shall prepare and deliver to the Seller, its own statement of the Net Asset Value as of 12:01 a.m.11:59 p.m., San Diego New York City time, on the Closing Date (the “Buyer Closing Date Net Asset Value Statement” and the Closing Date Net Asset Value as reflected on the Buyer Closing Date Net Asset Value Statement being referred to herein as the “Buyer Determined Closing Date Net Asset Value”), which Buyer Closing Date Net Asset Value Statement shall have been have reviewed and approved, in writing, by a nationally recognized accounting or inventory valuation firm reasonably acceptable to Seller, as fairly presenting the Closing Date Net Asset Value. In preparing the Buyer Closing Date Net Asset Value Statement, the Buyer shall be entitled to have access to the books and records of the Seller and the work papers of the Seller prepared in connection with the preparation of the Closing Date Net Asset Value Statement and shall be entitled to discuss such books and records and work papers with the Seller and those persons responsible for the preparation thereof. The Buyer Closing Date Net Asset Value Statement shall be prepared in accordance with Seller’s Past Practice determined as if Seller had not sold the Acquired Assets to the Buyer and had instead continued to operate the Business on and after the Closing Date. In the event that in preparing the Buyer Closing Date Net Asset Value Statement the Buyer conducts a physical inventory, the Seller shall be entitled to have one or more representatives present during the conduct of such physical inventory. In addition, if the Buyer does not object to the Closing Date Net Asset Value as shown on the Closing Date Net Asset Value Statement within the 30-day period referred to above, the Closing Date Net Asset Value as reflected on the Closing Date Net Asset Value Statement as so prepared shall be deemed final and conclusive and binding upon the Seller and the Buyer.
(iii) In the event that the Seller does not agree with the Buyer Determined Closing Date Net Asset Value as reflected on the Buyer Closing Date Net Asset Value Statement, the Seller shall so inform the Buyer in writing within 30 days after the Seller’s receipt thereof, such writing to set forth the objections of the Seller in reasonable detail. If the Seller and the Buyer cannot reach agreement as to any disputed matter relating to the Closing Date Net Asset Value within 15 days after notification by the Seller to the Buyer of a dispute, they shall forthwith refer the dispute to a nationally recognized accounting firm mutually agreeable to the Seller and the Buyer for resolution, with the understanding that: (i) the Closing Date Net Asset Value, as finally determined by such firm, shall not be less than the amount thereof shown in Buyer’s Closing Date Net Asset Value Statement nor greater than the amount thereof shown in the Seller’s objection delivered pursuant to this clause (iiiii); and (ii) such firm shall resolve all disputed items within 20 days after such disputed items are referred to it. If the Buyer and the Seller are unable to agree on the choice of an accounting firm, then ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP shall serve as the accounting firm. If ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP is unwilling to so serve, the Buyer and the Seller shall select a nationally recognized accounting firm by lot (after excluding their respective regular outside accounting firms, if applicable, and the accounting firm that initially reviewed and approved the Buyer Closing Date Net Asset Value Statement as set forth in Section 2(g)(ii)). The decision of any such accounting firm under this clause (iiiii) with respect to all disputed matters relating to the Closing Date Net Asset Value shall be deemed final and conclusive and shall be binding upon the Seller and the Buyer. In addition, if the Seller does not object to the Buyer Determined Closing Date Net Asset Value within the 30-day period referred to above, the Buyer Determined Closing Date Net Asset Value as reflected on the Buyer Closing Date Net Asset Value Statement as so prepared shall be deemed final and conclusive and binding upon the Seller and the Buyer.
(iv) The Seller shall be entitled to have access to the books and records of the Buyer and the work papers of the Buyer prepared in connection with the preparation of the Buyer Closing Date Net Asset Value Statement and shall be entitled to discuss such books and records and work papers with the Buyer and those persons responsible for the preparation thereof. The accounting firm selected pursuant to Section 2(g)(iii) shall be entitled to have access to the books and records of the Buyer and the Seller and the work papers of the Buyer and the Seller prepared in connection with the preparation of the Closing Date Net Asset Value Statement and the Buyer Closing Date Net Asset Value Statement and shall be entitled to discuss such books and records and work papers with the Buyer and the Seller and those persons responsible for the preparation thereof.
(Av) If the Closing Date Net Asset Value as finally determined pursuant to this Section 2(g) (the “Final Closing Date Net Asset Value”) exceeds $304,950 (15,375,000, then, subject to the provisions of the last sentence of this Section 2(g)(v), the Purchase Price shall be increased by an amount equal to the amount of such excess. If the Final Closing Date Net Asset Value is less than $15,375,000, then, subject to the provisions of the last sentence of this Section 2(g)(v), the Purchase Price shall be decreased by an amount equal to the amount of such shortfall. Notwithstanding the foregoing, no adjustment shall be made to the Purchase Price pursuant to this Section 2(g) unless the amount of such adjustment as determined pursuant to this Section 2(g)(v) equals or exceeds $200,000; provided, that if anythe amount of such adjustment as so determined equals or exceeds $200,000, being referred the entirety of such adjustment shall be made and paid as set forth in Section 2(g)(vi), below.
(vi) If, pursuant to herein as the “Finally Determined Excess”Section 2(g)(i) then the or Section 2(g)(v), Buyer is required to make a payment to Seller, Buyer shall pay such amount by wire transfer to an such account as shall be designated by the Seller, in writing, in cash to the Seller within five (5) business days after the date upon which the Closing Date Net Asset Value is deemed final and conclusive pursuant hereto.
(Bto this Section 2(g). If, pursuant to Section 2(g)(i) If the Final Closing Date Net Asset Value or Section 2(g)(v), Seller is less than $304,950 (such shortfallrequired to make a payment to Buyer, if any, being referred to herein as the “Finally Determined Shortfall”) then the Seller shall pay such amount by wire transfer to an the Blocked Account or such other account as shall be designated by Buyer, in writing, after the date hereof, in cash to the Buyer within five (5) business days after the date upon which the Closing Date Net Asset Value is deemed final and conclusive pursuant heretoto this Section 2(g).
(vivii) If the Final Closing Date Net Asset Value is determined by an accounting firm under Section 2(g)(iii), and such determination results in a payment to the Seller, then the Buyer shall pay the aggregate fees and expenses of the accounting firm selected to finally determine the Closing Date Net Asset Value. If the Final Closing Date Net Asset Value is determined by an accounting firm under Section 2(g)(iii), and such determination results in a payment to the Buyer that is greater than the payment that would have been required to have been made to Buyer based on the Closing Date Net Asset Value StatementBuyer, or results in no payment to either Buyer or Seller where a payment to Seller would have been required to have been made to Seller based on the Closing Date Net Asset Value StatementSeller, then the Seller shall pay the aggregate fees and expenses of the accounting firm selected to finally determine the Closing Date Net Asset Value.
Appears in 1 contract
Sources: Asset Purchase Agreement (Blyth Inc)
Net Asset Value Adjustment. The Purchase Price shall be subject to adjustment after the Closing Date as follows:
(i) Within thirty (30) 45 days of after the ClosingClosing Date, the Seller shall prepare and deliver to the Buyer an unaudited statement a consolidated balance sheet of the Company and the Subsidiary (the "Closing Balance Sheet") as of the end of the Company's last fiscal month ending on or prior
(a) (being the same principles used in preparing the Pro Forma Balance Sheet (as defined below) except as otherwise indicated on the first page of Attachment 1.4(a)), or to the extent not specifically addressed on Attachment 1.4(a), on a basis consistent with the accounting methods, treatments, principles and procedures used in the preparation of the pro forma consolidated balance sheet of the Company and the Subsidiary as of December 31, 1996 included in Exhibit G-II of Appendix G of the Descriptive Memorandum dated October 1997 previously furnished to the Buyer (using the FIFO inventory basis indicated in the notes to such consolidated balance sheet) (the "Pro Forma Balance Sheet"). Notwithstanding any provision of this Agreement to the contrary, any (x) dividends paid or other distributions or payments (including without limitation debt repayments, foreign sales corporation commissions and management charges) made by the Company to the Seller or the Seller's Affiliates after the Closing Balance Sheet Date and on or prior to Closing or (y) capital contributions or other cash infusions into the Company made by the Seller or the Seller's Affiliates after the Closing Balance Sheet Date and on or prior to Closing (and the application of the proceeds from such capital contributions or other cash infusions) shall be reflected on the Closing Balance Sheet. The consolidated net assets of the Company and the Subsidiary as reflected on the Closing Balance Sheet (i.e., the excess of consolidated total assets over consolidated total liabilities, in each case as determined on the basis set forth in this Section 1.4(a)(i)) is referred to herein as the "Closing Net Asset Value Value."
(the “Closing Date Net Asset Value Statement”). ii) If the Buyer in good faith disputes the Closing Date Net Asset Value as shown on the Closing Date Balance Sheet prepared by the Seller, the Buyer shall deliver to the Seller within 30 days after receiving the Closing Balance Sheet a statement (the "NAV Dispute Notice") setting forth what the Buyer believes is the correct Closing Net Asset Value Statement is less than $304,950, then and describing the Purchase Price basis for the determination of such different Closing Net Asset Value. The Parties shall be decreased by an amount equal use reasonable efforts to resolve such differences regarding the difference obtained by subtracting the amount determination of the Closing Date Net Asset Value from $304,950. If the Closing Date Net Asset Value as shown on the Closing Date Net Asset Value Statement is greater than $304,950, then the Purchase Price will be increased by an amount equal to the difference obtained by subtracting $304,950 from the amount for a period of the Closing Date Net Asset Value.
(ii) If the Buyer disagrees with the Closing Date Net Asset Value as shown on the Closing Date Net Asset Value Statement, then as soon as practicable following the Closing Date (but not later than 30 days after the delivery thereof)Buyer has given the NAV Dispute Notice. If the Parties resolve such differences, the Buyer shall prepare and deliver to the Seller, its own statement of the Closing Net Asset Value as of 12:01 a.m., San Diego time, on agreed to by the Parties shall be deemed to be the "Final Closing Date (the “Buyer Closing Date Net Asset Value Statement” Value" and the Closing Date Net Asset Value as reflected on Balance Sheet agreed to by the Buyer Closing Date Net Asset Value Statement being referred to herein as the “Buyer Determined Closing Date Net Asset Value”). In preparing the Buyer Closing Date Net Asset Value Statement, the Buyer shall be entitled to have access to the books and records of the Seller and the work papers of the Seller prepared in connection with the preparation of the Closing Date Net Asset Value Statement and shall be entitled to discuss such books and records and work papers with the Seller and those persons responsible for the preparation thereof. In the event that in preparing the Buyer Closing Date Net Asset Value Statement the Buyer conducts a physical inventory, the Seller shall be entitled to have one or more representatives present during the conduct of such physical inventory. In addition, if the Buyer does not object to the Closing Date Net Asset Value as shown on the Closing Date Net Asset Value Statement within the 30-day period referred to above, the Closing Date Net Asset Value as reflected on the Closing Date Net Asset Value Statement as so prepared Parties shall be deemed final and conclusive and binding upon to be the Seller and the Buyer"Final Closing Balance Sheet."
(iii) In If the event the Seller does Parties do not agree with the Buyer Determined Closing Date Net Asset Value as reflected on the Buyer Closing Date Net Asset Value Statement, the Seller shall so inform the Buyer in writing reach a final resolution within 30 days after the Buyer has given the NAV Dispute Notice, unless the Parties mutually agree to continue their efforts to resolve such differences, KPMG Peat Marwick, LLP (or if such firm is unable or unwilling to do so, another independent firm of nationally recognized public accountants that does not provide material services to the Seller’s receipt thereof, such writing to set forth the objections of the Seller in reasonable detail. If the Seller and the Buyer cannot reach agreement as or any of their respective Affiliates) (the "Neutral Accountants") shall resolve such differences in the manner provided below. The Parties shall each be entitled to any disputed matter relating make a presentation to the Closing Date Net Asset Value within 15 days after notification by the Seller Neutral Accountants, pursuant to the Buyer of a dispute, they shall forthwith refer the dispute procedures to a nationally recognized accounting firm mutually agreeable be agreed to the Seller and the Buyer for resolution, with the understanding that: (i) the Closing Date Net Asset Value, as finally determined by such firm, shall not be less than the amount thereof shown in Buyer’s Closing Date Net Asset Value Statement nor greater than the amount thereof shown in among the Seller’s objection delivered pursuant to this clause (iii); and (ii) such firm shall resolve all disputed items within 20 days after such disputed items are referred to it. If , the Buyer and the Seller are unable to agree Neutral Accountants, advocating the merits of the Closing Net Asset Value espoused by such Party;
(iv) The Seller, on the choice of an accounting firmone hand, then the Buyer and the Seller Buyer, on the other hand, shall select share equally the fees and expenses of the Neutral Accountants; provided that if the Neutral Accountants determine that one Party has adopted a nationally recognized accounting firm by lot (after excluding position or positions with respect to the Closing Balance Sheet that is frivolous or clearly without merit, the Neutral Accountants may, in their respective regular outside accounting firms). The decision discretion, assign a greater portion of any such accounting firm under this clause fees and expenses to such Party.
(iiiv) with respect Failure of the Buyer to all disputed matters relating to deliver a NAV Dispute Notice within 30 days after receiving the Closing Date Balance Sheet shall constitute acceptance of the Closing Net Asset Value set forth on the Closing Balance Sheet, whereupon such Closing Net Asset Value shall be deemed final and conclusive and shall to be binding upon the Seller and the Buyer. In addition, if the Seller does not object to the Buyer Determined Final Closing Date Net Asset Value within and the 30-day period referred to above, the Buyer Determined Closing Date Net Asset Value as reflected on the Buyer Closing Date Net Asset Value Statement as so prepared Balance Sheet shall be deemed final and conclusive and binding upon the Seller and the Buyer.
(iv) The Seller shall to be entitled to have access to the books and records of the Buyer and the work papers of the Buyer prepared in connection with the preparation of the Buyer Closing Date Net Asset Value Statement and shall be entitled to discuss such books and records and work papers with the Buyer and those persons responsible for the preparation thereof. The accounting firm selected pursuant to Section 2(g)(iii) shall be entitled to have access to the books and records of the Buyer and the Seller and the work papers of the Buyer and the Seller prepared in connection with the preparation of the Closing Date Net Asset Value Statement and the Buyer Closing Date Net Asset Value Statement and shall be entitled to discuss such books and records and work papers with the Buyer and the Seller and those persons responsible for the preparation thereof.
(A) If the Closing Date Net Asset Value as finally determined pursuant to this Section 2(g) (the “Final Closing Date Net Asset Value”) exceeds $304,950 (such excess, if any, being referred to herein as the “Finally Determined Excess”) then the Buyer shall pay such amount by wire transfer to an account designated by the Seller within five (5) business days after the date upon which the Closing Date Net Asset Value is deemed final and conclusive pursuant hereto.
(B) If the Final Closing Date Net Asset Value is less than $304,950 (such shortfall, if any, being referred to herein as the “Finally Determined Shortfall”) then the Seller shall pay such amount by wire transfer to an account designated by the Buyer within five (5) business days after the date upon which the Closing Date Net Asset Value is deemed final and conclusive pursuant heretoBalance Sheet.
(vi) If the Final Closing Date Net Asset Value is determined by an accounting firm under Section 2(g)(iiiwithin the range of $65,100,000 (inclusive) to $67,100,000 (inclusive), and such determination results in a then neither Party shall be required to make any payment to the Seller, other Party pursuant to this Section 1.4. If the Final Closing Net Asset Value is less than $65,100,000 then the Buyer Seller shall pay to the aggregate fees Buyer an amount equal to the difference between $65,100,000 and expenses of the accounting firm selected to finally determine the Final Closing Date Net Asset Value. If the Final Closing Date Net Asset Value is more than $67,100,000 then the Buyer shall pay to the Seller an amount equal to the difference between the Final Closing Net Asset Value and $67,100,000. Any payment shall be made by wire transfer or other delivery of immediately available funds, within five business days after the date on which the Final Closing Net Asset Value is determined pursuant to this Section 1.4(a) to an account or accounts designated by an accounting firm under Section 2(g)(iii), and the receiving Party within two business days after such determination results in a payment to the Buyer that is greater than the payment that would have been required to have been made to Buyer based on the Closing Date Net Asset Value Statement, or results in no payment to Buyer or Seller where a payment to Seller would have been required to have been made to Seller based on the Closing Date Net Asset Value Statement, then the Seller shall pay the aggregate fees and expenses of the accounting firm selected to finally determine the Closing Date Net Asset Valuedate.
Appears in 1 contract