Net Asset Value Adjustment. (i) No later than ten (10) business days 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. 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. If the Buyer agrees with the Closing Date Net Asset Value Statement, then the Closing Date Net Asset Value shall be deemed to be the Final Closing Date Net Asset Value (as defined below) and, subject to the provisions of the last 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 date 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 11:59 p.m., 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. (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 (ii); 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 Xxxxx Xxxxxxxx LLP shall serve as the accounting firm. If Xxxxx Xxxxxxxx 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 (ii) 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. (v) If the Closing Date Net Asset Value as finally determined pursuant to this Section 2(g) (the “Final Closing Date Net Asset Value”) exceeds $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 the amount of such adjustment as so determined equals or exceeds $200,000, the entirety of such adjustment shall be made and paid as set forth in Section 2(g)(vi), below. (vi) If, pursuant to Section 2(g)(i) or Section 2(g)(v), Buyer is required to make a payment to Seller, Buyer shall pay such amount by wire transfer to 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 to this Section 2(g). If, pursuant to Section 2(g)(i) or Section 2(g)(v), Seller is required to make a payment to Buyer, Seller shall pay such amount by wire transfer to 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 to this Section 2(g). (vii) 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, or results in no payment to either Buyer or Seller, then the Seller shall pay the aggregate fees and expenses of the accounting firm selected to finally determine the Closing Date Net Asset Value.
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Samples: Asset Purchase Agreement (Blyth Inc)
Net Asset Value Adjustment. The Purchase Price shall be subject to adjustment after the Closing Date as follows:
(i) No later than ten (10) business Within 45 days 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 Date Net Asset Value which will be 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 same format preparation of the pro forma consolidated balance sheet of the Company and the Subsidiary as of December 31, 1996 included in Exhibit C hereto, including with respect G-II of Appendix G of the Descriptive Memorandum dated October 1997 previously furnished to exhibits and schedules 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 Net Asset Value Statement”), together with and on or prior to Closing or (Ay) a certificate of an authorized officer 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 Seller stating that the Closing Date Net Asset Value Statement was prepared in accordance with Seller’s Past Practice and (Bproceeds from such capital contributions or other cash infusions) an updated Schedule 2 (listing of Assumed Purchase Orders) which updated Schedule 2 will shall 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 reflected on the Closing DateBalance Sheet. The Buyer shall notify consolidated net assets of the SellerCompany and the Subsidiary as reflected on the Closing Balance Sheet (i.e., the excess of consolidated total assets over consolidated total liabilities, in writing, within ten 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."
(10ii) business days of Seller’s delivery of If the Buyer in good faith disputes 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 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 Statementand describing the basis for the determination of such different Closing Net Asset Value. The Parties shall use reasonable efforts to resolve such differences regarding the determination of the Closing Net Asset Value for a period of 30 days after the Buyer has given the NAV Dispute Notice. If the Buyer agrees with Parties resolve such differences, the Closing Date Net Asset Value Statement, then agreed to by the Parties shall be deemed to be the "Final Closing Net Asset Value" and the Closing Date Balance Sheet agreed to by the Parties shall be deemed to be the "Final Closing Balance Sheet."
(iii) If the Parties do not 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, the Buyer 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 make a presentation to the Neutral Accountants, pursuant to procedures to be agreed to among the Seller, the Buyer and the Neutral Accountants, advocating the merits of the Closing Net Asset Value espoused by such Party;
(iv) The Seller, on the one hand, and the Buyer, on the other hand, shall share equally the fees and expenses of the Neutral Accountants; provided that if the Neutral Accountants determine that one Party has adopted a position or positions with respect to the Closing Balance Sheet that is frivolous or clearly without merit, the Neutral Accountants may, in their discretion, assign a greater portion of any such fees and expenses to such Party.
(v) Failure of the Buyer to deliver a NAV Dispute Notice within 30 days after receiving the Closing 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 to be the Final Closing Date Net Asset Value (as defined below) and, subject and the Closing Balance Sheet shall be deemed to be the provisions of the last 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)Final Closing Balance Sheet.
(iivi) If the Buyer disagrees with the Final Closing Date Net Asset Value as shown on is within the Closing Date Net Asset Value Statementrange of $65,100,000 (inclusive) to $67,100,000 (inclusive), then as soon as practicable following the Closing Date (but not later than 30 days after the date upon which Seller delivers the Closing Date Net Asset Value Statement), the Buyer neither Party shall prepare and deliver be required to make any payment to the Seller, its own statement of the Net Asset Value as of 11:59 p.m., 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.
(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 (ii); 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 Xxxxx Xxxxxxxx LLP shall serve as the accounting firm. If Xxxxx Xxxxxxxx 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 (ii) 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.
(v) If the Closing Date Net Asset Value as finally determined other Party pursuant to this Section 2(g) (the “Final Closing Date Net Asset Value”) exceeds $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 excess1.4. If the Final Closing Date Net Asset Value is less than $15,375,000, then, subject 65,100,000 then the Seller shall pay to the provisions of the last sentence of this Section 2(g)(v), the Purchase Price shall be decreased by Buyer 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 difference between $200,000; provided, that if the amount of such adjustment as so determined equals or exceeds $200,000, the entirety of such adjustment shall be made 65,100,000 and paid as set forth in Section 2(g)(vi), below.
(vi) If, pursuant to Section 2(g)(i) or Section 2(g)(v), Buyer is required to make a payment to Seller, Buyer shall pay such amount by wire transfer to 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 to this Section 2(g). If, pursuant to Section 2(g)(i) or Section 2(g)(v), Seller is required to make a payment to Buyer, Seller shall pay such amount by wire transfer to 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 to this Section 2(g).
(vii) 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 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, or results in no payment to either Buyer or Seller, 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
Net Asset Value Adjustment. (ia) No Promptly following the date of this Agreement, but no later than ten (10) business days after the Closing, the Seller shall deliver prior 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. The Buyer , the Company 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. If the Buyer agrees with the Closing Date Net Asset Value Statement, then the Closing Date Net Asset Value shall be deemed cause to be prepared and delivered to Parent the Final Pre-Closing Date Statement (as defined below) and a certificate based on such Pre-Closing Statement setting forth the Company's calculation of estimated Closing Net Asset Value (as defined below). The pre-closing statement (the "Pre-Closing Statement") and, subject to shall present the provisions Company's estimate of the last 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 date 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 11:59 p.m., New York City 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”"), 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 " means the Buyer Closing Date Net Asset Value Statement, 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 Company's audited Financial Statements for the most recent fiscal year end. Net Asset Value Statement shall exclude all deferred revenue except Qualified Deferred Revenue and shall be entitled include a reasonable estimate of all COBRA Continuation Costs. Parent and the Company shall agree on the calculations set forth in the Pre-Closing Statement prior 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.
(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 (ii); 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 Xxxxx Xxxxxxxx LLP shall serve as the accounting firm. If Xxxxx Xxxxxxxx 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 (ii) 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.
(v) If the Closing Date Net Asset Value as finally determined pursuant to this Section 2(g) (the “Final Closing Date Net Asset Value”) exceeds $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 Estimated Net Asset Value is less than One Dollar ($15,375,0001), then, subject the amount set forth in the final Allocation Spreadsheet next to the provisions of heading "holdback amount" delivered to Parent in accordance with the last sentence of this Section 2(g)(v), the Purchase Price 1.6(a) shall be decreased adjusted as of the Closing Date to equal the amount obtained by an amount equal to multiplying (x) the amount of such shortfall. Notwithstanding the foregoing, no adjustment shall be made to the Purchase Price pursuant to difference by (y) 1.125 (as adjusted in accordance with 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 the amount of such adjustment as so determined equals or exceeds $200,0001.7(a), the entirety of such adjustment shall be made and paid as set forth in Section 2(g)(vi"Holdback Amount"), below.
(vi) If, . Subject to any payment by Parent required pursuant to Section 2(g)(i) or Section 2(g)(v1.7(f), Buyer is required to make a payment to Seller, Buyer shall pay such amount by wire transfer to such account as the Holdback Amount shall be designated deducted from the aggregate consideration to be paid by the Seller, in writing, in cash Parent to the Seller within five (5) business days after holders of Company Capital Stock at the date upon which Effective Time in accordance with the Closing Date Net Asset Value is deemed final and conclusive pursuant to this Section 2(g). If, pursuant to Section 2(g)(i) or Section 2(g)(v), Seller is required to make a payment to Buyer, Seller shall pay such amount by wire transfer to 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 to this Section 2(g)Allocation Spreadsheet.
(vii) 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, or results in no payment to either Buyer or Seller, 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) No later 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 Statement of Net Assets shall be prepared using the same methods and criteria employed by the Seller in connection with the preparation of the May Balance Sheet and the 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 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 Purchasers' Calculation of Net Asset Value. Within ten (10) business days after following 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. The Buyer shall notify the Seller, in writing, within ten (10) business days of Seller’s delivery of the Closing Date Purchasers' Calculation of Net Asset Value Statement Value, Xxxxxx shall notify Enterra whether it agrees or disagrees with the Closing Date 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 calculation of Net Asset Value agreed upon by the Purchasers 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, records and other information and documents supporting such other party's calculation of Net Asset Value.
(b) If, after the review set forth in Section 4.5(a), Enterra and Xxxxxx reconcile Xxxxxx'x Calculation of Net Asset Value with the Purchasers' Calculation of Net Asset Value, then within three (3) business days, as the case may be: (i) the Seller shall pay the Purchasers by wire transfer of immediately available funds the amount by which the Interim Net Asset Value Adjustment exceeds the Agreed Upon Net Asset Value, or (ii) the Purchasers shall pay to the 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 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 soon as practical, and in any event within ten (10) days, the calculation of Net Asset Value and the balance owing to the Purchasers or the Seller hereunder, as the case may be, shall be determined jointly by Coopers & Xxxxxxx, L.L.P., Houston, Texas and another independent, Big Six accounting firm to be named by Enterra. The Net Asset Value as shown determined jointly by such accounting firms shall be referred to herein as the "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 accounting firm named by Enterra shall not be able to agree on the Closing Date Net Asset Value Statement. If and the Buyer agrees with balance owing to the Closing Date Purchasers or the Seller hereunder, as the case may be, within thirty (30) days, then such accounting firms shall select a third nationally recognized accounting firm which shall determine the Net Asset Value Statementand the balance owing to the Purchasers or the Seller hereunder, then as the Closing Date Net Asset Value case may be, and the determination of such third accounting firm shall be deemed 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 be the Final Closing Date Net Asset Value (cooperate fully with such accounting firms and furnish such firms with such information as defined below) and, subject they may require to the provisions of the last 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)determination.
(iid) If After 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 date upon which Seller delivers the Closing Date Net Asset Value Statement), the Buyer shall prepare and deliver to the Seller, its own statement determination of the Net Asset Value as of 11:59 p.m., 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 balance owing to the Buyer Closing Date Net Asset Value Statement being referred to herein Purchasers or the Seller hereunder, as the “Buyer Determined Closing Date Net Asset Value”case may be, by the accounting firm or firms provided for in Section 4.5(c), 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.
within three (iii3) 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 thatdetermination: (i) the Closing Date Seller shall pay to the 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, as finally determined or (ii) the Purchasers shall pay to the Seller by such firm, shall not be less than wire transfer of immediately available funds the amount thereof shown in Buyer’s Closing Date by which the Accountants' Calculation of Net Asset Value Statement nor greater than exceeds the amount thereof shown in the Seller’s objection delivered pursuant to this clause (ii); 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 Xxxxx Xxxxxxxx LLP shall serve as the accounting firm. If Xxxxx Xxxxxxxx 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 Interim Asset Value Statement as set forth in Section 2(g)(ii))Adjustment. The decision of any Any such accounting firm under this clause (ii) 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.
(v) If the Closing Date Net Asset Value as finally determined excess amounts paid pursuant to this Section 2(g4.5(d) (shall be considered an increase or decrease, as the “Final Closing Date Net Asset Value”) exceeds $15,375,000case may be, then, subject to the provisions of the last sentence of Purchase Price.
(e) Nothing in this Section 2(g)(v)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 Purchase Price 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 be increased by an amount equal have the right to dispute the amount of such excess. If the Final Closing Date Net Asset Value is less than $15,375,000, then, subject to the provisions or any element of the last sentence of this calculation thereof once it has been finally determined in accordance with 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(g4.5(a) unless the amount of such adjustment as determined pursuant to this Section 2(g)(vor (c) equals or exceeds $200,000; provided, that if the amount of such adjustment as so determined equals or exceeds $200,000, the entirety of such adjustment shall be made and paid as set forth in Section 2(g)(vi), belowhereof.
(vif) If, pursuant An example of the calculations referred to Section 2(g)(i) or Section 2(g)(v), Buyer is required to make a payment to Seller, Buyer shall pay such amount by wire transfer to 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 to this Section 2(g). If, pursuant to Section 2(g)(i) or Section 2(g)(v), Seller 4.5 is required to make a payment to Buyer, Seller shall pay such amount by wire transfer to 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 to this Section 2(g)attached hereto on Exhibit 2.
(vii) 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, or results in no payment to either Buyer or Seller, then the Seller shall pay the aggregate fees and expenses of the accounting firm selected to finally determine the Closing Date Net Asset Value.
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