Common use of Net Asset Adjustment Clause in Contracts

Net Asset Adjustment. (a) If the Closing Date Net Assets (as defined below) are less than the total assets minus the total liabilities set forth on the Pro Forma Balance Sheet, the Sellers shall pay the difference to Purchaser (the "Purchaser Reimbursement"). If the Closing Date Net Assets are greater than the total assets less the total liabilities set forth on the Pro Forma Balance Sheet, Purchaser shall pay the difference to the Sellers, or, at the written request of all of the Sellers, to the Seller Senior Lenders on behalf of and for the account of the Sellers. Any payment under this Section 4.4(a) shall be made in immediately available funds within five (5) Business Days of the date the Closing Date Net Assets are finally determined pursuant to this Section 4.4. (b) As promptly as practicable following the Closing Date, but in no event more than ninety (90) calendar days following the Closing Date, Purchaser shall prepare and deliver to SunScript Pharmacy a balance sheet setting forth the Transferred Assets and the Assumed Liabilities as of and including the Closing Date, in accordance with clause (f) below. (c) Unless within thirty (30) calendar days after its receipt of the balance sheet referred to in clause (b) above, SunScript Pharmacy shall deliver to Purchaser a reasonably detailed statement describing its objections to such balance sheet, the amounts determined in accordance with clause (b) shall be final and binding. (d) If SunScript Pharmacy shall deliver the statement referred to in clause (c) above, Purchaser and each of the Sellers shall use reasonable efforts to resolve any disputes, but if a final resolution is not reached within twenty (20) calendar days after SunScript Pharmacy has submitted its objections, any remaining disputes shall be resolved by Deloitte & Touche LLP (the "Reviewing Accountants"). The Reviewing Accountants shall be instructed to resolve any matters in dispute as promptly as practicable. The determination of the Reviewing Accountants will be final and binding. (e) Purchaser, on the one hand, and the Sellers, on the other hand, shall each pay its own costs and expenses incurred in connection with the dispute resolution described in clause (d) above; provided that, Purchaser, on the one hand, and the Sellers, on the other hand, shall each pay one-half of the fees and expenses of the Reviewing Accountants. The Sellers and Purchaser shall cooperate with each other and the Reviewing Accountants in connection with the matters contemplated by this Section 4.4, including by furnishing such information and access to books, records (including, without limitation, accountants work papers), personnel and properties as may be reasonably requested. (f) The "Closing Date Net Assets" will be equal to the total assets less the total liabilities set forth on the balance sheet finally determined in accordance with this Section 4.4 (the "Closing Date Balance Sheet"). The Closing Date Balance Sheet shall be prepared in accordance with GAAP applied on a basis otherwise consistent with the accounting principles used in preparation of the Pro Forma Balance Sheet (including the notes thereto). (g) At the option of Purchaser, any payment due to, or right of setoff or recoupment of, Purchaser in accordance with this Section 4.4, or any portion thereof, may be deducted from the Post-Bankruptcy Payment, if any, or the Second Anniversary Payment in satisfaction of such payment obligation or portion thereof; provided that each of the Sellers acknowledge and agree that its obligations to Purchaser under this Section 4.4 are not limited to the amount of the Post-Closing Payment.

Net Asset Adjustment. (ai) If The Buyer shall cause to be prepared a schedule of Net Assets (the “Net Asset Schedule”). The Buyer shall deliver the Net Asset Schedule to the Seller Representative (on behalf of all the Sellers) within sixty (60) days after the Closing Date. The Seller Representative shall review the Net Asset Schedule and, in connection therewith, the Seller Representative and its accountants shall be entitled to review the Company’s working papers, trial balances and similar materials relating to the Company’s preparation of its balance sheet as of the Closing Date. The Net Asset Schedule shall be deemed final upon the earliest of (i) the date on which the Seller Representative and the Buyer agree that the Net Asset Schedule is final, (ii) if the Seller Representative has not earlier notified the Buyer, in writing, of a dispute in amounts shown on the Net Asset Schedule, the twentieth (20th) day after delivery of the Net Asset Schedule by the Buyer to the Seller Representative, and (iii) the date on which any disputes relating to the Net Asset Schedule are resolved, as described in this Section 2.3 . The Net Assets, determined by reference to the final Net Asset Schedule, is referred to herein as the “Closing Date Net Assets”. (ii) Notwithstanding anything to the contrary in this Agreement, any disputes regarding amounts shown in the Net Asset Schedule shall be resolved as set forth in this Section 2.3(d)(ii) . (A) In the event that the Seller Representative disputes an amount shown on the Net Asset Schedule initially delivered by the Buyer to the Seller Representative in accordance with Section 2.3(d)(i) , the Seller Representative shall provide timely written notice of each disputed item (each, a “Disputed Item”) to the Buyer (the “Dispute Notice,” and, the date of its delivery, the “Dispute Notice Date”) specifying the amount in dispute (including the Seller Representative’s calculation of the Net Assets) and setting forth, in reasonable detail, the basis for such dispute. Within twenty (20) business days following the Dispute Notice Date, the Disputed Items shall be submitted to Deloitte & Touche (the “Arbiter”) (it being understood that Deloitte & Touche was chosen because of representations made that none of the Buyer, the Company, the Sellers or their respective Affiliates have a material relationship with Deloitte & Touche, and if any such Parties prior to the calculation of the Closing Date Net Assets develops a material relationship with Deloitte & Touche, the Party having such relationship shall promptly notify the other Parties of such relationship and the Seller Representative and the Buyer will select another national accounting firm with which none of such Parties has a material relationship to serve as the Arbiter). Each of the Seller Representative and Buyer shall then submit evidence in support of its position on each Disputed Item. (B) Without limiting the generality of the foregoing, the Parties acknowledge that the Purchase Price adjustment contemplated by this Section 2.3 is intended to reflect the difference between Net Assets as defined below) are less than the total assets minus the total liabilities set forth shown on the Pro Forma Balance SheetNet Asset Schedule and the Targeted Amount, and the Parties further acknowledge that such difference can only be measured if the calculation of Net Assets is performed in the same way, using the same methods, as of all relevant dates. The scope of the Disputed Items to be resolved by the Arbiter is limited, therefore, to whether the Net Asset Schedule was prepared in accordance with the terms of this Agreement. Upon final resolution of all Disputed Items, the Sellers Arbiter shall pay the difference to Purchaser (the "Purchaser Reimbursement"). If issue a report showing a calculation of the Closing Date Net Assets are greater than the total assets less the total liabilities set forth on the Pro Forma Balance Sheet, Purchaser shall pay the difference to the Sellers, or, at the written request of all of the Sellers, to the Seller Senior Lenders on behalf of and for the account of the Sellers. Any payment under this Section 4.4(a) shall be made in immediately available funds within five (5) Business Days of the date the Closing Date Net Assets are finally determined pursuant to this Section 4.4Assets. (bC) As promptly The Arbiter shall make its determination of the Disputed Items, and such determination shall be binding and conclusive on the Parties. The Parties shall cooperate fully in assisting the Arbiter in calculating the Disputed Items and shall take such actions as practicable following are necessary to expedite and to cause the Closing Date, but in no event more than ninety (90) calendar days following the Closing Date, Purchaser Arbiter to expedite such calculation. The Arbiter shall prepare act as an expert and deliver to SunScript Pharmacy a balance sheet setting forth the Transferred Assets and the Assumed Liabilities not as of and including the Closing Date, in accordance with clause (f) belowan arbitrator. (cD) Unless within thirty (30) calendar days after its receipt of the balance sheet referred to in clause (b) above, SunScript Pharmacy The Buyer shall deliver to Purchaser bear a reasonably detailed statement describing its objections to such balance sheet, the amounts determined in accordance with clause (b) shall be final and binding. (d) If SunScript Pharmacy shall deliver the statement referred to in clause (c) above, Purchaser and each of the Sellers shall use reasonable efforts to resolve any disputes, but if a final resolution is not reached within twenty (20) calendar days after SunScript Pharmacy has submitted its objections, any remaining disputes shall be resolved by Deloitte & Touche LLP (the "Reviewing Accountants"). The Reviewing Accountants shall be instructed to resolve any matters in dispute as promptly as practicable. The determination of the Reviewing Accountants will be final and binding. (e) Purchaser, on the one hand, and the Sellers, on the other hand, shall each pay its own costs and expenses incurred in connection with the dispute resolution described in clause (d) above; provided that, Purchaser, on the one hand, and the Sellers, on the other hand, shall each pay one-half percentage of the fees and expenses of the Reviewing Accountants. The Sellers and Purchaser shall cooperate with each other Arbiter that equals (i) the difference between the Buyer’s calculation of Net Assets delivered pursuant to Section 2.3(d)(i) and the Reviewing Accountants in connection with Arbiter’s calculation of Closing Date Net Assets divided by (ii) the matters contemplated by this total difference between the Buyer’s calculation of Net Assets delivered pursuant to Section 4.4, including by furnishing such information 2.3(d)(i) and access the Sellers’ calculation of Net Assets delivered pursuant to books, records (including, without limitation, accountants work papers), personnel and properties as may be reasonably requestedSection 2.3(d)(ii)(A) . (fE) The "Closing Date Sellers shall bear a percentage of the fees and expenses of the Arbiter that equals (i) the difference between Sellers’ calculation of Net Assets" will be equal Assets delivered pursuant to Section 2.3(d)(ii)(A) and the Arbiter’s calculation of Net Assets divided by (ii) the total assets less difference between the total liabilities set forth on Sellers’ calculation of Net Assets delivered pursuant to Section 2.3(d)(ii)(A) and the balance sheet finally determined in accordance with this Buyer’s calculation of Net Assets delivered pursuant to Section 4.4 (the "Closing Date Balance Sheet")2.3(d)(i) . The Closing Date Balance Sheet Sellers’ obligation to pay such amount shall be prepared in accordance with GAAP applied on a basis otherwise consistent with the accounting principles used in preparation of the Pro Forma Balance Sheet (including the notes thereto). (g) At the option of Purchaser, any payment due to, or right of setoff or recoupment of, Purchaser in accordance with this Section 4.4, or any portion thereof, may be deducted satisfied solely from the Post-Bankruptcy Payment, if any, or the Second Anniversary Payment in satisfaction Escrow Funds. The obligation of any Seller to pay such amount shall be several and limited to such Seller's Pro Rata Portion of such payment obligation or portion thereof; provided that each of the Sellers acknowledge and agree that its obligations to Purchaser under this Section 4.4 are not limited to the amount of the Post-Closing Paymentamount.

Net Asset Adjustment. (ai) If Buyer's advisors have prepared from the CR books and records furnished by Seller, and Seller has approved, a Pro Forma Statement of Closing Date Net Assets (with 000s omitted) ("Pro Forma Statement) as defined below) are less than if the total assets minus the total liabilities Closing had taken place on December 29, 2001, as set forth on the in Exhibit H attached hereto. Such Pro Forma Balance Sheet, Statement shows "Pro Forma closing net assets" under the Sellers shall pay column marked "Adjusted Book Value" of approximately $7,900,000 after the difference adjustments are made to Purchaser (each of the "Purchaser Reimbursement"). If the Closing Date Net Assets are greater than the total assets less the total liabilities line items as set forth on the in such Pro Forma Balance SheetStatement, Purchaser provided, however, that liabilities shall not include any sums owed to Seller's employees with respect to vacation, sick pay the difference to the Sellersor paid time off accruals. The Adjusted Book Value of those categories of Acquired Assets, or, at the written request as of all of the Sellers, to the Seller Senior Lenders on behalf of and for the account of the Sellers. Any payment under this Section 4.4(a) shall be made in immediately available funds within five (5) Business Days of the date the Closing Date Net Assets are finally determined pursuant to this Section 4.4. (b) As promptly as practicable following the Closing Date, but for which there are entries set forth in no event more the column of the Pro Forma Statement marked "Adjusted Book Value" minus the Assumed Liabilities in the same column ("Closing Net Value"), shall be not less than ninety $7,900,000. Such determination will follow the accounting principles, policies and estimates used in determining the Pro Forma Statement, as set forth on Exhibit H hereto. (90ii) calendar Within 30 business days following after the Closing Date, Purchaser or as promptly as practicable thereafter, Buyer shall prepare cause to be prepared and deliver delivered to SunScript Pharmacy Seller a balance sheet setting forth draft Closing Net Assets Statement ("Net Assets Statement") for the Transferred Assets and the Assumed Liabilities CR business as of and including the Closing Date, in accordance with clause (f) below. (c) Unless within thirty (30) calendar days after its receipt of the balance sheet referred to in clause (b) above, SunScript Pharmacy shall deliver to Purchaser a reasonably detailed statement describing its objections to such balance sheet, the amounts determined in accordance with clause (b) shall be final and binding. (d) If SunScript Pharmacy shall deliver the statement referred to in clause (c) above, Purchaser and each of the Sellers shall use reasonable efforts to resolve any disputes, but if a final resolution is not reached within twenty (20) calendar days after SunScript Pharmacy has submitted its objections, any remaining disputes shall be resolved by Deloitte & Touche LLP (the "Reviewing Accountants"). The Reviewing Accountants shall be instructed to resolve any matters in dispute as promptly as practicable. The determination of the Reviewing Accountants will be final and binding. (e) Purchaser, on the one hand, and the Sellers, on the other hand, shall each pay its own costs and expenses incurred in connection with the dispute resolution described in clause (d) above; provided that, Purchaser, on the one hand, and the Sellers, on the other hand, shall each pay one-half of the fees and expenses of the Reviewing Accountants. The Sellers and Purchaser shall cooperate with each other and the Reviewing Accountants in connection with the matters contemplated by this Section 4.4, including by furnishing such information and access to books, records (including, without limitation, accountants work papers), personnel and properties as may be reasonably requested. (f) The "Closing Date Net Assets" will be equal to the total assets less the total liabilities set forth on the balance sheet finally determined in accordance with this Section 4.4 (the "Closing Date Balance Sheet"). The Closing Date Balance Sheet shall be prepared in accordance with GAAP applied on a basis otherwise consistent with using the accounting principles used applied to construct the Pro Forma Statement and covering those categories for which there are entries set forth in preparation the column of the Pro Forma Balance Sheet Statement marked "Adjusted Book Value." Such Net Assets Statement shall reflect the results of a physical count of all CR fixed assets and inventory taken at the direction of Buyer's independent certified public accountants within seven (including 7) business days after the notes thereto). (g) At the option of Purchaser, any payment due to, or right of setoff or recoupment of, Purchaser in accordance with this Section 4.4, or any portion thereof, may be deducted from the Post-Bankruptcy Payment, if any, or the Second Anniversary Payment in satisfaction of Closing Date and a review by such payment obligation or portion thereof; provided that each accountants of the Sellers acknowledge and agree that its obligations to Purchaser under this Section 4.4 are not limited to trade accounts receivable as existing on the amount Closing Date. Buyer shall give Seller written notice of the Post-Closing Paymenttime and place of each physical count and Seller shall have the right to have an observer present at each such place.