Post-Closing Adjustments to Closing Consideration. Within 20 days after the Closing Date, Seller will prepare and deliver to Buyer an itemized schedule (the "Post-Closing Calculation Schedule") specifying (1) Seller's calculation of the sum of the SKU Net Values for all items of Inventory included in the Purchased Assets as of the Closing Date (the "Aggregate Inventory Scheduled Closing Net Value"), and (2) Seller's calculation of the aggregate net book value of the Fixed Assets included in the Purchased Assets as of the Closing Date (the "Fixed Assets Scheduled Closing Value"). Buyer will have a period of 20 days following the delivery of the Post-Closing Calculation Schedule to notify Seller in writing of any disagreements with the calculations set forth in the Post-Closing Calculation Schedule. Failure to notify Seller within such 20-day period will be deemed acceptance by Buyer of the Aggregate Inventory Scheduled Closing Net Value and Fixed Assets Scheduled Closing Value, in which case the Aggregate Inventory Scheduled Closing Net Value and the Fixed Assets Scheduled Closing Value will be deemed the "Aggregate Inventory Final Closing Net Value" and the "Fixed Assets Final Closing Value," respectively, for purposes of this Section 1. If Buyer timely notifies Seller in writing of any disagreement with the calculations in the Post-Closing Calculation Schedule (such notice, the "Objection Notice"), Seller and Buyer will negotiate in good faith to resolve such disagreement. If Seller and Buyer are able to resolve such disagreement, then, for purposes of this Section 1, the "Aggregate Inventory Final Closing Net Value" and the "Fixed Assets Final Closing Value" will be the amounts agreed by Seller and Buyer. If Buyer and Seller are unable to resolve any disagreement properly identified by Buyer pursuant to Section 1.6(b)(B) within 20 days following delivery of the Objection Notice, then such disagreement will be submitted for final and binding resolution to an independent accounting firm of nationally recognized standing that is reasonably independent from Seller and Buyer (a "Neutral Accounting Firm") to resolve such disagreement (the "Accounting Arbitrator"). The Accounting Arbitrator will be a Neutral Accounting Firm selected by mutual agreement of Buyer and Seller; provided that (i) if, within 20 days after Buyer has delivered the Objection Notice to Seller pursuant to Section 1.6(B), Buyer and Seller are unable to agree on a Neutral Accounting Firm to act as the Accounting Arbitrator, Buyer and Seller each will select a Neutral Accounting Firm and such firms together will select the Neutral Accounting Firm to act as the Accounting Arbitrator, and (ii) if Buyer or Seller does not select a Neutral Accounting Firm within 10 days of written demand therefor by the other party, the Neutral Accounting Firm selected by the other party will act as the Accounting Arbitrator. The Accounting Arbitrator will consider only those items and amounts set forth in the Post-Closing Calculation Schedule as to which Buyer and Seller have disagreed within the time periods set forth in Section 1.6(B) and on the terms specified above. The Accounting Arbitrator must resolve the matter in accordance with the terms and provisions of this Agreement. The Accounting Arbitrator will deliver to Buyer and Seller, as promptly as practicable and in any event within 20 days after its appointment, a written report setting forth the resolution of any such disagreement determined in accordance with the terms of this Agreement. The Accounting Arbitrator will select the position of either Buyer or Seller as a resolution for each item of disagreement and may not impose an alternative resolution. The Accounting Arbitrator will make its determination based on presentations and supporting material provided by the parties and, at its election, pursuant to responses provided by the parties to inquiries posed by the Accounting Arbitrator based on such presentations and supporting material but not pursuant to its independent review. The determination of the Accounting Arbitrator will be final and binding, and the amounts determined by the Accounting Arbitrator will be the "Aggregate Inventory Final Closing Net Value" and/or the "Fixed Assets Final Closing Value," as applicable, for purposes of this Section 1. When the Aggregate Inventory Final Closing Net Value and the Fixed Assets Final Closing Value have been finally determined, the original principal amount of the Buyer Note will be adjusted as follows: If the Aggregate Inventory Final Closing Net Value exceeds the Aggregate Inventory Estimated Closing Net Value, the principal amount of the Buyer Note automatically will be increased dollar-for-dollar, retroactively to the Closing Date, by the amount that the Aggregate Inventory Final Closing Net Value exceeds the Aggregate Inventory Estimated Closing Net Value; If the Aggregate Inventory Final Closing Net Value is less than the Aggregate Inventory Estimated Closing Net Value, the principal amount of the Buyer Note automatically will be decreased dollar-for-dollar, retroactively to the Closing Date, by the amount that the Aggregate Inventory Final Closing Net Value is less than the Aggregate Inventory Estimated Closing Net Value; If the Fixed Assets Final Closing Value exceeds the Fixed Assets Estimated Closing Value, the principal amount of the Buyer Note automatically will be increased dollar-for-dollar, retroactively to the Closing Date, by the amount that the Fixed Assets Final Closing Value exceeds the Fixed Assets Estimated Closing Value; and If the Fixed Assets Final Closing Value is less than the Fixed Assets Estimated Closing Value, the principal amount of the Buyer Note automatically will be decreased dollar-for-dollar, retroactively to the Closing Date, by the amount that the Fixed Assets Final Closing Value is less than the Fixed Assets Estimated Closing Value. In addition to the adjustments contemplated by Section 1.6(E) of this Agreement, the principal amount of the Buyer Note will also be decreased dollar-for-dollar, retroactively to the Closing Date, by the amount of vacation pay assumed by Buyer at the election of the Selected Employees.
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Post-Closing Adjustments to Closing Consideration. (A) Within 20 days after the Closing Date, Seller will prepare and deliver to Buyer an itemized schedule (the "Post-Closing Calculation Schedule") specifying (1) Seller's calculation of the sum of the SKU Net Values for all items of Inventory included in the Purchased Assets as of the Closing Date (the "Aggregate Inventory Scheduled Closing Net Value"), and (2) Seller's ’s calculation of the aggregate net book value of the Fixed Assets included in the Purchased Assets as of the Closing Date (the "Fixed Assets Scheduled Closing Value"). .
(B) Buyer will have a period of 20 days following the delivery of the Post-Post- Closing Calculation Schedule to notify Seller in writing of any disagreements with the calculations set forth in the Post-Closing Calculation Schedule. Failure to notify Seller within such 20-day period will be deemed acceptance by Buyer of the Aggregate Inventory Scheduled Closing Net Value and Fixed Assets Scheduled Closing Value, in which case the Aggregate Inventory Scheduled Closing Net Value and the Fixed Assets Scheduled Closing Value will be deemed the "Aggregate Inventory Final Closing Net Value" and the "Fixed Assets Final Closing Value," respectively, for purposes of this Section 1. If Buyer timely notifies Seller in writing of any disagreement with the calculations in the Post-Closing Calculation Schedule (such notice, the "Objection Notice"), Seller and Buyer will negotiate in good faith to resolve such disagreement. If Seller and Buyer are able to resolve such disagreement, then, for purposes of this Section 1, the "Aggregate Inventory Final Closing Net Value" and the "Fixed Assets Final Closing Value" will be the amounts agreed by Seller and Buyer. .
(C) If Buyer and Seller are unable to resolve any disagreement properly identified by Buyer pursuant to Section 1.6(b)(B) within 20 days following delivery of the Objection Notice, then such disagreement will be submitted for final and binding resolution to an independent accounting firm of nationally recognized standing that is reasonably independent from Seller and Buyer (a "Neutral Accounting Firm") to resolve such disagreement (the "Accounting Arbitrator"). The Accounting Arbitrator will be a Neutral Accounting Firm selected by mutual agreement of Buyer and Seller; provided that (i) if, within 20 days after Buyer has delivered the Objection Notice to Seller pursuant to Section 1.6(B), Buyer and Seller are unable to agree on a Neutral Accounting Firm to act as the Accounting Arbitrator, Buyer and Seller each will select a Neutral Accounting Firm and such firms together will select the Neutral Accounting Firm to act as the Accounting Arbitrator, and (ii) if Buyer or Seller does not select a Neutral Accounting Firm within 10 days of written demand therefor by the other party, the Neutral Accounting Firm selected by the other party will act as the Accounting Arbitrator. .
(D) The Accounting Arbitrator will consider only those items and amounts set forth in the Post-Closing Calculation Schedule as to which Buyer and Seller have disagreed within the time periods set forth in Section 1.6(B) and on the terms specified above. The Accounting Arbitrator must resolve the matter in accordance with the terms and provisions of this Agreement. The Accounting Arbitrator will deliver to Buyer and Seller, as promptly as practicable and in any event within 20 days after its appointment, a written report setting forth the resolution of any such disagreement determined in accordance with the terms of this Agreement. The Accounting Arbitrator will select the position of either Buyer or Seller as a resolution for each item of disagreement and may not impose an alternative resolution. The Accounting Arbitrator will make its determination based on presentations and supporting material provided by the parties and, at its election, pursuant to responses provided by the parties to inquiries posed by the Accounting Arbitrator based on such presentations and supporting material but not pursuant to its independent review. The determination of the Accounting Arbitrator will be final and binding, and the amounts determined by the Accounting Arbitrator will be the "Aggregate Inventory Final Closing Net Value" and/or the "Fixed Assets Final Closing Value," as applicable, for purposes of this Section 1. .
(E) When the Aggregate Inventory Final Closing Net Value and the Fixed Assets Final Closing Value have been finally determined, the original principal amount of the Buyer Note will be adjusted as follows: :
(1) If the Aggregate Inventory Final Closing Net Value exceeds the Aggregate Inventory Estimated Closing Net Value, the principal amount of the Buyer Note automatically will be increased dollar-for-dollar, retroactively to the Closing Date, by the amount that the Aggregate Inventory Final Closing Net Value exceeds the Aggregate Inventory Estimated Closing Net Value; ;
(2) If the Aggregate Inventory Final Closing Net Value is less than the Aggregate Inventory Estimated Closing Net Value, the principal amount of the Buyer Note automatically will be decreased dollar-for-dollar, retroactively to the Closing Date, by the amount that the Aggregate Inventory Final Closing Net Value is less than the Aggregate Inventory Estimated Closing Net Value; ;
(3) If the Fixed Assets Final Closing Value exceeds the Fixed Assets Estimated Closing Value, the principal amount of the Buyer Note automatically will be increased dollar-for-dollar, retroactively to the Closing Date, by the amount that the Fixed Assets Final Closing Value exceeds the Fixed Assets Estimated Closing Value; and and
(4) If the Fixed Assets Final Closing Value is less than the Fixed Assets Estimated Closing Value, the principal amount of the Buyer Note automatically will be decreased dollar-for-dollar, retroactively to the Closing Date, by the amount that the Fixed Assets Final Closing Value is less than the Fixed Assets Estimated Closing Value. .
(F) In addition to the adjustments contemplated by Section 1.6(E) of this Agreement, the principal amount of the Buyer Note will also be decreased dollar-for-dollar, retroactively to the Closing Date, by the amount of vacation pay assumed by Buyer at the election of the Selected Employees.
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Sources: Asset Purchase Agreement
Post-Closing Adjustments to Closing Consideration. (A) Within 20 days after the Closing Date, Seller will prepare and deliver to Buyer an itemized schedule (the "“Post-Closing Calculation Schedule"”) specifying (1) Seller's ’s calculation of the sum of the SKU Net Values for all items of Inventory included in the Purchased Assets as of the Closing Date (the "“Aggregate Inventory Scheduled Closing Net Value"”), and (2) Seller's ’s calculation of the aggregate net book value of the Fixed Assets included in the Purchased Assets as of the Closing Date (the "“Fixed Assets Scheduled Closing Value"”). .
(B) Buyer will have a period of 20 days following the delivery of the Post-Closing Calculation Schedule to notify Seller in writing of any disagreements with the calculations set forth in the Post-Closing Calculation Schedule. Failure to notify Seller within such 20-day period will be deemed acceptance by Buyer of the Aggregate Inventory Scheduled Closing Net Value and Fixed Assets Scheduled Closing Value, in which case the Aggregate Inventory Scheduled Closing Net Value and the Fixed Assets Scheduled Closing Value will be deemed the "“Aggregate Inventory Final Closing Net Value" ” and the "“Fixed Assets Final Closing Value," ” respectively, for purposes of this Section 1. If Buyer timely notifies Seller in writing of any disagreement with the calculations in the Post-Closing Calculation Schedule (such notice, the "“Objection Notice"”), Seller and Buyer will negotiate in good faith to resolve such disagreement. If Seller and Buyer are able to resolve such disagreement, then, for purposes of this Section 1, the "“Aggregate Inventory Final Closing Net Value" ” and the "“Fixed Assets Final Closing Value" ” will be the amounts agreed by Seller and Buyer. .
(C) If Buyer and Seller are unable to resolve any disagreement properly identified by Buyer pursuant to Section 1.6(b)(B) within 20 days following delivery of the Objection Notice, then such disagreement will be submitted for final and binding resolution to an independent accounting firm of nationally recognized standing that is reasonably independent from Seller and Buyer (a "“Neutral Accounting Firm"”) to resolve such disagreement (the "“Accounting Arbitrator"”). The Accounting Arbitrator will be a Neutral Accounting Firm selected by mutual agreement of Buyer and Seller; provided that (i) if, within 20 days after Buyer has delivered the Objection Notice to Seller pursuant to Section 1.6(B), Buyer and Seller are unable to agree on a Neutral Accounting Firm to act as the Accounting Arbitrator, Buyer and Seller each will select a Neutral Accounting Firm and such firms together will select the Neutral Accounting Firm to act as the Accounting Arbitrator, and (ii) if Buyer or Seller does not select a Neutral Accounting Firm within 10 days of written demand therefor by the other party, the Neutral Accounting Firm selected by the other party will act as the Accounting Arbitrator. .
(D) The Accounting Arbitrator will consider only those items and amounts set forth in the Post-Closing Calculation Schedule as to which Buyer and Seller have disagreed within the time periods set forth in Section 1.6(B) and on the terms specified above. The Accounting Arbitrator must resolve the matter in accordance with the terms and provisions of this Agreement. The Accounting Arbitrator will deliver to Buyer and Seller, as promptly as practicable and in any event within 20 days after its appointment, a written report setting forth the resolution of any such disagreement determined in accordance with the terms of this Agreement. The Accounting Arbitrator will select the position of either Buyer or Seller as a resolution for each item of disagreement and may not impose an alternative resolution. The Accounting Arbitrator will make its determination based on presentations and supporting material provided by the parties and, at its election, pursuant to responses provided by the parties to inquiries posed by the Accounting Arbitrator based on such presentations and supporting material but not pursuant to its independent review. The determination of the Accounting Arbitrator will be final and binding, and the amounts determined by the Accounting Arbitrator will be the "“Aggregate Inventory Final Closing Net Value" ” and/or the "“Fixed Assets Final Closing Value," ” as applicable, for purposes of this Section 1. .
(E) When the Aggregate Inventory Final Closing Net Value and the Fixed Assets Final Closing Value have been finally determined, the original principal amount of the Buyer Note will be adjusted as follows: :
(1) If the Aggregate Inventory Final Closing Net Value exceeds the Aggregate Inventory Estimated Closing Net Value, the principal amount of the Buyer Note automatically will be increased dollar-for-dollar, retroactively to the Closing Date, by the amount that the Aggregate Inventory Final Closing Net Value exceeds the Aggregate Inventory Estimated Closing Net Value; ;
(2) If the Aggregate Inventory Final Closing Net Value is less than the Aggregate Inventory Estimated Closing Net Value, the principal amount of the Buyer Note automatically will be decreased dollar-for-dollar, retroactively to the Closing Date, by the amount that the Aggregate Inventory Final Closing Net Value is less than the Aggregate Inventory Estimated Closing Net Value; ;
(3) If the Fixed Assets Final Closing Value exceeds the Fixed Assets Estimated Closing Value, the principal amount of the Buyer Note automatically will be increased dollar-for-dollar, retroactively to the Closing Date, by the amount that the Fixed Assets Final Closing Value exceeds the Fixed Assets Estimated Closing Value; and and
(4) If the Fixed Assets Final Closing Value is less than the Fixed Assets Estimated Closing Value, the principal amount of the Buyer Note automatically will be decreased dollar-for-dollar, retroactively to the Closing Date, by the amount that the Fixed Assets Final Closing Value is less than the Fixed Assets Estimated Closing Value. .
(F) In addition to the adjustments contemplated by Section 1.6(E) of this Agreement, the principal amount of the Buyer Note will also be decreased dollar-for-dollar, retroactively to the Closing Date, by the amount of vacation pay assumed by Buyer at the election of the Selected Employees.
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