Common use of Purchase Price Adjustment Procedures Clause in Contracts

Purchase Price Adjustment Procedures. (i) Not later than 60 days after the Closing Date (as defined in Article 2), the Buyer will prepare and deliver to the Sellers' Agent a balance sheet (the "Closing Balance Sheet") of the Corporation as of the Closing Date, consisting of a computation of the tangible book value of the assets of the Corporation as of the Closing Date, less the book value of the liabilities of the Corporation as of the Closing Date, all as determined in accordance with generally accepted accounting principles applied consistently with the Financial Statements (as defined in Section 3.13(a)); provided, however, that (A) based upon a physical inventory, the cost of which will be borne equally by the Buyer and the Sellers, parts inventories shall be based on the value of returnable parts and new car inventories shall be valued on a first-in, first-out (FIFO) basis without taking into account the tax effect of such FIFO basis, (B) the value of the used vehicles inventory of the Corporation shall be as mutually agreed to by the Buyer and the Sellers based upon a physical inventory to be conducted jointly by the Sellers and the Buyer on the Closing Date or the Business Day immediately preceding the Closing Date, which inventory shall be conducted for the Sellers by the Seller's Agent and for the Buyer by Xxxxx Xxxxx Xxxxx, and (C) there shall be included such reserves and/or write-offs for doubtful accounts receivable and bad debts and for damaged, spoiled, obsolete or slow-moving inventory as shall be consistent with the Corporation's past year-end practices. The tangible net book value reflected on the Closing Balance Sheet is hereinafter called the "Net Book Value". If within 30 days following delivery of the Closing Balance Sheet (or the next Business Day if such 30th day is not a Business Day), the Sellers' Agent has not given the Buyer notice of the Sellers' objection to the computation of the Net Book Value as set forth in the Closing Balance Sheet (such notice to contain a statement in reasonable detail of the nature of the Sellers' objection), then the Net Book Value reflected in the Closing Balance Sheet will be deemed mutually agreed by the Buyer and the Sellers. If the Sellers' Agent shall have given such notice of objection in a timely manner, then the issues in dispute will be submitted to a "Big Six" accounting firm mutually acceptable to the Buyer and the Sellers' Agent (the "Accountants") for resolution. If issues in dispute are submitted to the Accountants for resolution, (1) each party will furnish to the Accountants such workpapers and other documents and information relating to the disputed issues as the Accountants may request and are available to the party or its subsidiaries (or its independent public accountants), and will be afforded the opportunity to present to the Accountants any material relating to the determination and to discuss the determination with the Accountants; (2) the Accountants will be instructed to determine the Net Book Value based upon their resolution of the issues in dispute; (3) such determination by the Accountants of the Net Book Value, as set forth in a notice delivered to both parties by the Accountants, will be binding and conclusive on the parties;

Purchase Price Adjustment Procedures. (ia) Not later than 60 days after On August 15, 2002 (the Closing Date (as defined in Article 2"Reconciliation Date"), the Buyer will shall cause its accountants to prepare and deliver to the Sellers' Agent a balance sheet schedule (the "Closing Balance SheetSchedule") showing the amount of the Corporation Positive Usage Adjustment or the Negative Usage Adjustment, as the case may be, determined as provided in Section 3.1 above. As soon as practicable, but in no event later than twenty-one (21) days following the Reconciliation Date, Buyer shall deliver the Schedule to Seller. Seller shall have until fifteen (15) days following receipt of the Closing DateSchedule from Buyer, consisting of a computation of to present in writing to Buyer any objections Seller may have to the tangible book value of the assets of the Corporation as of the Closing Datematters set forth therein ("Seller's Objections"), less the book value of the liabilities of the Corporation as of the Closing Date, all as determined in accordance with generally accepted accounting principles applied consistently with the Financial Statements (as defined in Section 3.13(a)); provided, however, that (A) based upon a physical inventory, the cost of which will be borne equally by the Buyer and the Sellers, parts inventories objections shall be based on the value of returnable parts and new car inventories shall be valued on a first-in, first-out (FIFO) basis without taking into account the tax effect of such FIFO basis, (B) the value of the used vehicles inventory of the Corporation shall be as mutually agreed to by the Buyer and the Sellers based upon a physical inventory to be conducted jointly by the Sellers and the Buyer on the Closing Date or the Business Day immediately preceding the Closing Date, which inventory shall be conducted for the Sellers by the Seller's Agent and for the Buyer by Xxxxx Xxxxx Xxxxx, and (C) there shall be included such reserves and/or write-offs for doubtful accounts receivable and bad debts and for damaged, spoiled, obsolete or slow-moving inventory as shall be consistent with the Corporation's past year-end practices. The tangible net book value reflected on the Closing Balance Sheet is hereinafter called the "Net Book Value". If within 30 days following delivery of the Closing Balance Sheet (or the next Business Day if such 30th day is not a Business Day), the Sellers' Agent has not given the Buyer notice of the Sellers' objection to the computation of the Net Book Value as set forth in reasonable detail. If Buyer does not receive such Seller's Objections on or before the Closing Balance Sheet fifteenth (15) day following the receipt by the Seller of such notice to contain a statement in reasonable detail of Schedule, the nature of Positive Usage Adjustment or the Sellers' objection)Negative Usage Adjustment, then as the Net Book Value reflected in the Closing Balance Sheet will case may be, shall be deemed mutually agreed accepted and approved by the Buyer and the SellersSeller. If the Sellers' Agent Seller delivers Seller's Objections during such fifteen (15) day period, Buyer's and Seller's respective accounting firms shall have given such notice of objection in a timely manner, then attempt to resolve the issues matters in dispute will and, if resolved, such firms shall send a joint notice to Buyer and Seller stating the manner in which the dispute was resolved. If a dispute cannot be resolved by Buyer and Seller or by their respective accounting firms prior to forty-five (45) days following the Reconciliation Date, such dispute shall be submitted to a "Big Six" third accounting firm mutually acceptable chosen by the Buyer's and Seller's accounting firms, which firm shall make a final and binding determination as to such matter or matters. The third accounting firm shall send its written determination to Buyer, Seller and their respective accounting firms on or before the sixtieth day following the Reconciliation Date. Buyer and Seller agree to cooperate with each other and each other's representatives in order that the Positive Usage Adjustment or the Negative Usage Adjustment, as the case may be, may be timely performed and that any disputes may be resolved. The fees of Seller's accounting firm shall be paid by Seller, the fees of Buyer's accounting firm shall be paid by Buyer and the Sellers' Agent (fee of any third accounting firm shall be paid one‑half by Buyer and one‑half by Seller. The amount reflected as the Positive Usage Adjustment or the Negative Usage Adjustment, as the case may be, shall be referred to herein as the "AccountantsReconciliation Amount." The completion of the procedures set forth above shall be referred to as the "Reconciliation Procedures." (b) for resolution. If issues in dispute are submitted the Reconciliation Amount is a positive amount, the Purchase Price paid to the Accountants Seller shall increase on a dollar for resolutiondollar basis for such amount delivered in shares of NUI Common Stock calculated using the Average Closing Price and, (1) each party will furnish to if the Accountants such workpapers and other documents and information relating to Reconciliation Amount reflects a negative amount, the disputed issues as the Accountants may request and are available to the party or its subsidiaries (or its independent public accountants), and will be afforded the opportunity to present to the Accountants any material relating to the determination and to discuss the determination with the Accountants; (2) the Accountants will be instructed to determine the Net Book Value based upon their resolution of the issues in dispute; (3) such determination Purchase Price paid by the Accountants Buyer shall be reduced on a dollar for dollar basis for such amount in shares of NUI Common Stock calculated using the Net Book Value, as set forth in a notice delivered to both parties by the Accountants, will be binding and conclusive on the parties;Average Closing Price.

Purchase Price Adjustment Procedures. (ia) Not Preparation of Closing Balance Sheet. As promptly as practicable, but no later than 60 days 5:00 p.m. (Mountain Time) on the 75th day after the Closing Date (or such later date as defined Purchaser and Seller agree in Article 2)writing, the Buyer Purchaser will prepare and deliver or cause to the Sellers' Agent be prepared a consolidated balance sheet (the "Closing Balance Sheet") of the Corporation Brand Companies as of the Closing DateDate (the “Closing Balance Sheet”), consisting prepared in accordance with the Brand Companies’ historical practices and presented in a manner consistent with Schedule 2.05(b) to be delivered to Seller, together with a statement (the “Closing Statement”) setting forth in reasonable detail Purchaser’s calculation of a computation of (i) the tangible book value of Cash on Hand, (ii) the assets of Closing Indebtedness, (iii) the Corporation Company Transaction Expenses that were not paid as of the Closing DateClosing, less the book value of the liabilities of the Corporation as of the Closing Datein each case, all as determined prepared by Purchaser in good faith in accordance with generally accepted accounting principles applied consistently the Brand Companies’ historical practices and presented in a manner consistent with the Financial Statements pro forma example attached hereto as Schedule 2.05(b), and (as defined in Section 3.13(a)); provided, however, that (Aiv) based upon a physical inventory, the cost of which will be borne equally by the Buyer and the Sellers, parts inventories shall be Final Net Closing Cash Consideration based on the value of returnable parts and new car inventories shall be valued on a first-in, first-out (FIFO) basis without taking into account foregoing. In the tax effect of such FIFO basis, (B) the value of the used vehicles inventory of the Corporation shall be as mutually agreed to by the Buyer and the Sellers based upon a physical inventory to be conducted jointly by the Sellers and the Buyer on the Closing Date or the Business Day immediately preceding the Closing Date, which inventory shall be conducted for the Sellers by the Seller's Agent and for the Buyer by Xxxxx Xxxxx Xxxxx, and (C) there shall be included such reserves and/or write-offs for doubtful accounts receivable and bad debts and for damaged, spoiled, obsolete or slow-moving inventory as shall be consistent with the Corporation's past year-end practices. The tangible net book value reflected on event that Purchaser does not deliver the Closing Balance Sheet is hereinafter called and the "Net Book Value"Closing Statement within such 75-day period, Purchaser shall be conclusively deemed to have accepted the Estimated Cash on Hand, the Estimated Closing Indebtedness and the Estimated Company Transaction Expenses as the Cash on Hand, the Closing Indebtedness, and the Company Transaction Expenses, respectively. If within 30 days following delivery Purchaser acknowledges and agrees that, for the purposes of Seller’s review of the Closing Balance Sheet (or the next Business Day if such 30th day is not a Business Daydelivered by Purchaser pursuant to this Section 2.06(a), Purchaser shall afford, and shall cause the Sellers' Agent has not given the Buyer notice of the Sellers' objection Company to afford, Seller commercially reasonable access during normal business hours to the computation books and records (other than privileged documents) of Purchaser, the Net Book Value as set forth in the Closing Balance Sheet (such notice to contain a statement in reasonable detail of the nature of the Sellers' objection), then the Net Book Value reflected in the Closing Balance Sheet will be deemed mutually agreed by the Buyer Brand Companies and the Sellers. If the Sellers' Agent shall have given such notice of objection in a timely manner, then the issues in dispute will be submitted to a "Big Six" accounting firm mutually acceptable to the Buyer and the Sellers' Agent (the "Accountants") for resolution. If issues in dispute are submitted to the Accountants for resolution, (1) each party will furnish to the Accountants such workpapers and other documents and information relating to the disputed issues as the Accountants may request and are available to the party or its subsidiaries (or its independent public accountants), and will be afforded the opportunity to present to the Accountants any material relating to the determination and to discuss the determination with the Accountants; (2) the Accountants will be instructed to determine the Net Book Value based upon their resolution of the issues in dispute; (3) such determination by the Accountants of the Net Book Value, as set forth in a notice delivered to both parties by the Accountants, will be binding and conclusive on the parties;respective Representatives.

Purchase Price Adjustment Procedures. (ia) Not later than 60 days after the Closing Date (as defined in Article 2)The adjustment, the Buyer will prepare and deliver if any, to the Sellers' Agent a balance sheet (Purchase Price specified in Section 4.5 shall be determined based upon the "Closing Balance Sheet". The Closing Balance Sheet shall be prepared by the Buyer and delivered to the Seller within ninety (90) of the Corporation as days of the Closing Date, consisting of a computation of the tangible book value of the assets of the Corporation as of the Closing Date, less the book value of the liabilities of the Corporation as of the Closing Date, all as determined in accordance with generally accepted accounting principles applied consistently with the Financial Statements (as defined in Section 3.13(a)); provided, however, that (A) based upon a physical inventory, the cost of which will be borne equally by the Buyer and the Sellers, parts inventories shall be based on the value of returnable parts and new car inventories shall be valued on a first-in, first-out (FIFO) basis without taking into account the tax effect of such FIFO basis, (B) the value of the used vehicles inventory of the Corporation shall be as mutually agreed to by the Buyer and the Sellers based upon a physical inventory to be conducted jointly by the Sellers . The Seller and the Buyer on the Closing Date or the Business Day immediately preceding the Closing Date, which inventory shall be conducted for the Sellers by the Seller's Agent and for the Buyer by Xxxxx Xxxxx Xxxxx, and (C) there shall be included such reserves and/or write-offs for doubtful accounts receivable and bad debts and for damaged, spoiled, obsolete or slow-moving inventory as shall be consistent agree that each will cooperate with the Corporation's past year-end practices. The tangible net book value reflected on other so that the Closing Balance Sheet is hereinafter called completed within ninety (90) days after the "Net Book Value". If within 30 Closing Date. (b) The Seller shall have thirty (30) days following delivery from the date of its receipt of the Closing Balance Sheet (or the next Business Day if such 30th day is not a Business Day), "Review Period") to review the Sellers' Agent Closing Balance Sheet. If the Seller has not given the Buyer notice of the Sellers' objection to the computation of the Net Book Value as set forth in any disagreements with the Closing Balance Sheet (such notice to contain a statement in reasonable detail of the nature of the Sellers' objection), then the Net Book Value reflected Seller shall notify the Buyer in writing of its objections within such thirty (30) day period. Buyer and Seller shall then use their best efforts to reach agreement on the Closing Balance Sheet will be deemed mutually agreed by Sheet. In the event that the Buyer and Seller are unable to reach agreement within thirty (30) days of the Sellers. If notification to the Sellers' Agent shall have given such notice of objection in a timely mannerBuyer, then the issues any matter in dispute will shall be submitted referred to a "Big Six" accounting firm mutually acceptable single Certified Public Accountant to be agreed upon between them, or in default of such agreement, to be selected by agreement of each of the Buyer and the Sellersparties' Agent (the "Accountants") for resolution. If issues in dispute are submitted to the Accountants for resolution, (1) each party will furnish to the Accountants such workpapers and other documents and information relating to the disputed issues as the Accountants may request and are available to the party or its subsidiaries (or its independent public accountants), . The certified public accountant shall act as an expert (and will be afforded the opportunity to present to the Accountants any material relating to the determination and to discuss the determination not as an arbitrator) in connection with the Accountants; (2) giving of such decision, which shall be binding upon the Accountants will be instructed parties. Each party agrees to determine the Net Book Value based upon their resolution pay one half of the issues accountant's fees in dispute; connection with such decision. Payment shall be made within ten (310) such determination by the Accountants days of the Net Book Value, as set forth in a notice delivered to both parties by decision of the Accountants, will be binding and conclusive on the parties;certified public accountant.

Purchase Price Adjustment Procedures. (i) Not As promptly as practicable after the Closing, but in no event later than 60 thirty (30) days after the Closing Date (as defined in Article 2)Closing, the Buyer will prepare and deliver shall notify Seller in writing (the “Post-Closing Statement”) of its determination of any proposed adjustments to the Sellers' Agent a balance sheet Purchase Price under Sections 2.6(a)(ii)(B), (the "Closing Balance Sheet"iii), (iv), (v), (iv), (vii) of the Corporation as of the Closing Date, consisting of a computation of the tangible book value of the assets of the Corporation as of the Closing Date, less the book value of the liabilities of the Corporation as of the Closing Date, all as determined in accordance with generally accepted accounting principles applied consistently with the Financial Statements and (as defined in Section 3.13(a)); provided, however, that viii) (A) based upon a physical inventoryif any, the cost “Buyer Adjustment Amounts”). A representative of which will be borne equally by Seller shall have the right to observe the process of preparing the Post-Closing Statement and determining the Buyer and the Sellers, parts inventories shall be based Adjustment Amounts set forth on the value of returnable parts Post-Closing Statement, and new car inventories shall be valued on a first-in, first-out (FIFO) basis without taking into account the tax effect of have access to all work papers used in such FIFO basis, (B) the value of the used vehicles inventory of the Corporation shall be as mutually agreed determination. If Seller provides written notice to by the Buyer and the Sellers based upon a physical inventory that Seller agrees to be conducted jointly by the Sellers and the Buyer on the Closing Date Adjustment Amounts, or the Business Day immediately preceding the Closing Date, which inventory shall be conducted for the Sellers by the Seller's Agent and for the Buyer by Xxxxx Xxxxx Xxxxx, and within fifteen (C15) there shall be included such reserves and/or write-offs for doubtful accounts receivable and bad debts and for damaged, spoiled, obsolete or slow-moving inventory as shall be consistent with the Corporation's past year-end practices. The tangible net book value reflected on the Closing Balance Sheet is hereinafter called the "Net Book Value". If within 30 days following delivery of the Post-Closing Balance Sheet Statement (or the next Business Day if such 30th day is not a Business Day“Dispute Notice Period”), the Sellers' Agent has Seller does not given object in writing to the Buyer Adjustment Amounts set forth on the Post-Closing Statement, then the Buyer Adjustment Amounts shall become final, binding and conclusive as computed on such Post-Closing Statement, and the Purchase Price shall be adjusted accordingly. If Seller does object to the Adjustment Amounts within the Dispute Notice Period by delivering written notice of the Sellers' such objection (a “Dispute Notice”) to Buyer of any dispute Seller has with respect to the computation Buyer Adjustment Amounts, then the Buyer and Seller shall negotiate in good faith and attempt to resolve their disagreement for a period of fifteen (15) days following delivery of the Net Book Value as Dispute Notice. The Dispute Notice must contain the amount of each of the adjustment amounts to the Purchase Price under Sections 2.6(a)(ii)(B), (iii), (iv), (v), (vi), (vii) and (viii) that Seller believes should have been set forth in on the Post-Closing Balance Sheet Statement (such notice to contain a statement the “Seller Adjustment Amounts”), must describe in reasonable detail the items contained in the Post-Closing Statement that Seller disputes, the basis for any such disputes and documentation supporting the reason for such dispute. Any items not disputed in the Dispute Notice will be deemed to have been accepted by Seller, and any adjustment to the Purchase Price that can be made with respect to such undisputed items shall be made accordingly. Furthermore, if in the course of such negotiations between Buyer and Seller, Buyer and Seller agree on the nature of final, binding and conclusive adjustment amounts to the Sellers' objection51267463.5 Purchase Price under Sections 2.6(a)(ii)(B), (iii), (iv), (v), (vi), (vii) and (viii), then the Net Book Value reflected Purchase Price shall be adjusted accordingly. Should such negotiations not result in an agreement on the final, binding and conclusive adjustment amounts to the Purchase Price under Sections 2.6(a)(ii)(B), (iii), (iv), (v), (vi), (vii) and (viii) within fifteen (15) days after the date of the Dispute Notice, then the remaining disputed matters shall be submitted to the Bankruptcy Court to be resolved in accordance with the terms and conditions set forth in this Section 2.6. The scope of the disputes to be resolved by the Bankruptcy Court shall be limited to the unresolved items in the Closing Balance Sheet will be deemed mutually agreed by the Buyer and the SellersDispute Notice. If the Sellers' Agent shall have given such notice of objection in a timely mannerPurchase Price is decreased pursuant to this Section 2.6, then the issues in dispute will Escrow Agent shall cause to be submitted released to a "Big Six" accounting firm mutually acceptable Buyer the amount of such reduction to the Buyer and the Sellers' Agent (the "Accountants") for resolution. If issues in dispute are submitted to the Accountants for resolution, (1) each party will furnish to the Accountants such workpapers and other documents and information relating to the disputed issues as the Accountants may request and are available to the party or its subsidiaries (or its independent public accountants), and will be afforded the opportunity to present to the Accountants any material relating to the determination and to discuss the determination with the Accountants; (2) the Accountants will be instructed to determine the Net Book Value based upon their resolution Purchase Price out of the issues in dispute; Escrow Cash Component within ten (310) days of such determination by adjustment amount becoming final, binding and conclusive under this Section 2.6(b). If, however, the Accountants Purchase Price is increased pursuant to this Section 2.6, then the Escrow Agent shall continue to hold the entirety of the Net Book Value, as Escrow Cash Component until expiration of the time period set forth in a notice delivered Section 3.5(c) pursuant to both parties by the Accountants, will be binding and conclusive on terms of the parties;Escrow Agreement.