Common use of Closing Determination Clause in Contracts

Closing Determination. Seller and Purchaser agree, that pending the final determination of the Actual Tangible Net Book Value as provided elsewhere in this Section 1.4, the Division's estimated Tangible Net Book Value as of the Closing Date (the "Estimated Tangible Net Book Value") is $2,000,000. For avoidance of doubt, each of the parties agrees that the determination of Actual Tangible Net Book Value is to be made as of the Closing Date. "Tangible Net Book Value" means, except as otherwise set forth in this Section 1.4, the aggregate net book value of the Division Assets, less the sum of (i) the aggregate amount of all Permitted Subsidiary Cash Transfers (as defined in Section 1.8) plus the amount of any withholding taxes associated therewith, (ii) the aggregate net book value of all intangible Division Assets (including, without limitation, the aggregate net book value of (A) any capitalized software costs related to internal research and development, (B) software purchased for resale and (C) purchased software, the license of which is not transferable to Purchaser) and (iii) the aggregate net book value of all liabilities of the Division to be assumed by Purchaser which would be required to be set forth on the face of a Closing Date balance sheet, all as determined in accordance with U.S. GAAP applied in a manner consistent with Seller's past practices; it being agreed that (A) the calculation of Tangible Net Book Value will not include accounts receivable related to the delivery of future services, unless a corresponding amount of deferred revenue liability with respect to such accounts receivable is included in the calculation of the Division's liabilities, (B) for avoidance of doubt, the calculation of the assets and liabilities of the Division will include the assets and liabilities of the Acquired Subsidiaries, as adjusted for any Permitted Subsidiary Cash Transfers, (C) the calculation of Tangible Net Book Value will not include the benefit of, or the burden of, any asset or liability which inures to the benefit of, or is to be borne by, Seller or its post-closing Affiliates, (D) notwithstanding the agreement of the parties to leave all maintenance contracts related to the Business with Seller and its Affiliates as specified in Section 1.7 hereof and notwithstanding any provision to the contrary contained herein, the determination of Tangible Net Book Value will be made as if all maintenance contracts and the related deferred revenue liabilities with respect thereto are to be transferred to Purchaser and its Affiliates and (E) notwithstanding any provision to the contrary contained herein, the determinations of prepaid assets, inventory and property, plant and equipment, any other fixed assets and any other assets or liabilities to be included in the determination of Tangible Net Book Value will be made based on the specifically identified schedules of such assets made pursuant to Section 1.9 of this Agreement, in each case as updated to reflect activity through the Closing Date. If the Estimated Tangible Net Book Value is less than $10,000,000, the Cash Portion of the Purchase Price otherwise deliverable to Seller on the Funding Date will be reduced by an amount equal to such shortfall. As the parties have agreed that the Estimated Tangible Net Book Value is $2,000,000, the Cash Portion of the Purchase Price will be reduced by $8,000,000, from $62,500,000 to $54,500,000."

Closing Determination. No later than five (5) Business Days prior to the Closing, Seller and Purchaser agree, that pending the final will confer and make a mutually agreed upon determination of the Actual Tangible Net Book Value as provided elsewhere in this Section 1.4, the Division's estimated Tangible Net Book Asset Value as of the Closing Date (the "Estimated Tangible Net Book Asset Value") is $2,000,000. For avoidance of doubt, each as set forth on a mutually agreed upon estimated Closing Date balance sheet reflecting the assets of the parties agrees that Division being purchased and the determination of Actual Tangible Net Book Value is to be made as liabilities of the Closing DateDivision being assumed. "Tangible Net Book Asset Value" means, except as otherwise set forth in this Section 1.4, the aggregate net book value of the Division Assets, less the sum of (i) the aggregate amount of all Permitted Subsidiary Cash Transfers (as defined in Section 1.8) plus the amount of any withholding taxes associated therewith, (ii) the aggregate net book value of all intangible Division Assets (including, without limitation, the aggregate net book value of (A) any capitalized software costs related to internal research and developmentcosts, (B) software purchased for resale and resale, (C) purchased software, the license of which is not transferable to PurchaserPurchaser and (D) any Division Asset included in the caption "Intangibles" in the attached Financial Statements) and (iiiii) the aggregate net book value of all liabilities of the Division to be assumed by Purchaser which would be required to be set forth on the face of a Closing Date balance sheet, all as determined in accordance with U.S. GAAP applied in a manner consistent with Seller's past practices; it being agreed that (A) the calculation of Tangible the Net Book Asset Value will not include accounts receivable related to the delivery of future services, unless a corresponding amount of deferred revenue liability with respect to such accounts receivable is included in the calculation of the Division's liabilities, (B) for avoidance of doubt, the calculation of the assets and liabilities of the Division will include the assets and liabilities of the Acquired Subsidiaries, as adjusted for any Permitted Subsidiary Cash Transfers, (C) the calculation of Tangible Net Book Asset Value will not include the benefit of, or the burden of, any asset or liability which inures to the benefit of, or is to be borne by, Seller or its post-closing Affiliates, (DC) notwithstanding the agreement of the parties to leave all maintenance contracts related to the Business with Seller and its Affiliates as specified in Section 1.7 hereof and notwithstanding any provision to the contrary contained hereinhereof, the determination of Tangible Net Book Asset Value will be made as if all maintenance contracts and the related deferred revenue liabilities with respect thereto are to be transferred to Purchaser and its Affiliates and effective as of the Closing Date, (ED) notwithstanding any provision to the contrary contained herein, the determinations of prepaid assets, inventory and property, plant and equipment, any other fixed assets and any other assets or liabilities to be included in the determination of Tangible Net Book Asset Value will be made based on the specifically identified schedules of such assets made pursuant to Section 1.9 of this AgreementSections 1.1(a)(ii), 1.1(a)(iv) and 1.1(a)(v) hereto or other schedules specifically identifying any such assets and liabilities, in each case as updated to reflect activity through the Closing DateDate and (E) the calculation of the Net Asset Value will not include any of the Division Assets included in the captions "Net Capitalized Software" or "Long-Term Receivables-Clients" in the attached Financial Statements or any of the amounts related to the Business' relationship with Agrilink included in the caption "Other Receivables" in the attached Financial Statements. With regard to the Division Assets and Assumed Liabilities required to be set forth on Schedules as described in Section 1.1 and Section 1.2, such Schedules will be subject to the procedural mechanisms set forth in this Section 1.4 (e.g., the post-Closing determination and review process set forth in Section 1.4(b)). If the Estimated Tangible Net Book Asset Value is less than $10,000,0003,590,000, the Cash Portion of the Purchase Price otherwise deliverable to Seller on at the Funding Date Closing will be reduced by an amount equal to such shortfall. As the parties have agreed that If the Estimated Tangible Net Book Asset Value is greater than $2,000,0003,590,000, the Cash Portion of the Purchase Price otherwise deliverable to Seller at the Closing will be reduced increased by $8,000,000, from $62,500,000 to $54,500,000the amount of such excess."

Closing Determination. Seller and Purchaser agree, that pending the final determination The projected Net Worth of the Actual Tangible Net Book Value as provided elsewhere in this Section 1.4, the Division's estimated Tangible Net Book Value CFT as of May 31, 1999, shall initially be determined prior to the Closing Date by CFT in good faith within two (2) business days prior to the Closing Date (the "Estimated Tangible Closing Determination"). Following the Closing Date, the Net Book ValueWorth of CFT as of May 31, 1999, shall be determined by PWC in accordance with the terms of this Agreement (at the expense of ACG), which determination (the "PWC Determination") is $2,000,000. For avoidance of doubt, each shall be submitted in writing to ACG and the Shareholders' Representative on behalf of the parties agrees that the determination of Actual Tangible Net Book Value is to be made as of Shareholders not later ninety (90) days after the Closing Date. "Tangible Net Book Value" means, except as otherwise set forth Unless the Shareholders' Representative on behalf of the Shareholders (other than the ESOP) objects in this Section 1.4writing to the PWC Determination within ten (10) business days of the receipt of such determination, the aggregate net book value of PWC Determination shall be final, conclusive and binding on the Division AssetsParties. If no objection is made and if the PWC Determination is less than the Minimum Net Worth, less ACG shall take the actions described in Section 2(k) above until the sum of (i) any adjustments to the aggregate amount of all Permitted Subsidiary Cash Transfers (as defined in Section 1.8) plus the amount of any withholding taxes associated therewith, Earned Payout Amount and (ii) any transfers by the aggregate net book value Shareholders to ACG equals the amount by which the PWC Determination is less than the Minimum Net Worth. In the event that the Shareholders' Representative on behalf of all intangible Division Assets the Shareholders disputes the PWC Determination within ten (including, without limitation10) days after the Shareholders' Representative's receipt thereof, the aggregate net book value parties shall retain the Independent Accountants to review the disputed item(s) in the PWC Determination. The final determination (the "Final Determination") of (Asuch disputed item(s) any capitalized software costs related to internal research by the Independent Accountants under this Section 2(m) shall be conclusive and development, (B) software purchased for resale and (C) purchased software, the license of which is not transferable to Purchaser) and (iii) the aggregate net book value of all liabilities of the Division to be assumed by Purchaser which would be required to be set forth binding on the face of a Closing Date balance sheet, all as determined in accordance with U.S. GAAP applied in a manner consistent with Seller's past practices; it being agreed that (A) the calculation of Tangible Net Book Value will not include accounts receivable related to the delivery of future services, unless a corresponding amount of deferred revenue liability parties hereto with respect to such accounts receivable is included disputed items(s) and any adjustments described in Section 2(k) above shall be made using the Final Determination (rather than the PWC Determination). The cost of retaining the Independent Accountants shall be borne by ACG; provided, however, that the Shareholders (other than the ESOP) shall reimburse ACG for the cost of the Independent Accountants in the calculation event that the results of the Division's liabilities, (B) for avoidance of doubt, the calculation Final Determination differ by less than 10% in favor of the assets and liabilities Shareholders (or are equal to or differ in any amount in favor of ACG) from the results of the Division will include the assets PWC Determination. Any binding determination under this Section 2(m) shall be a joint and liabilities several obligation of the Acquired SubsidiariesShareholders, as adjusted for any Permitted Subsidiary Cash Transfers, (C) the calculation of Tangible Net Book Value will not include the benefit of, or the burden of, any asset or liability which inures to the benefit of, or is to be borne by, Seller or its post-closing Affiliates, (D) notwithstanding the agreement of the parties to leave all maintenance contracts related to the Business with Seller and its Affiliates as specified in Section 1.7 hereof and notwithstanding any provision to the contrary contained herein, the determination of Tangible Net Book Value will be made as if all maintenance contracts and the related deferred revenue liabilities with respect thereto are to be transferred to Purchaser and its Affiliates and (E) notwithstanding any provision to the contrary contained herein, the determinations of prepaid assets, inventory and property, plant and equipment, any other fixed assets and any other assets or liabilities to be included in the determination of Tangible Net Book Value will be made based on the specifically identified schedules of such assets made pursuant to Section 1.9 of this Agreementone hand, in each case as updated to reflect activity through the Closing Date. If the Estimated Tangible Net Book Value is less than $10,000,000and ACG and Newco, the Cash Portion of the Purchase Price otherwise deliverable to Seller on the Funding Date will be reduced by an amount equal to such shortfall. As the parties have agreed that the Estimated Tangible Net Book Value is $2,000,000, the Cash Portion of the Purchase Price will be reduced by $8,000,000, from $62,500,000 to $54,500,000other hand."