PURCHASER AT LEAST TWO BUSINESS DAYS PRIOR TO THE CLOSING DATE (THE
PURCHASE PRICE PLUS OR MINUS SUCH ESTIMATE OF ANY ADJUSTMENT UNDER SECTION 2.01
MINUS THE EARLY CLOSING ADJUSTMENT AMOUNT BEING HEREINAFTER CALLED THE "CLOSING
DATE PAYMENT"), (II) DULY EXECUTED COUNTERPARTS OF THE DEEDS, BILLS OF SALE,
ASSIGNMENTS AND OTHER INSTRUMENTS OF TRANSFER NECESSARY TO ASSIGN THE
TRANSFERRED ASSETS TO THE PURCHASER, AND DULY EXECUTED ASSUMPTION AGREEMENTS AND
OTHER INSTRUMENTS OF ASSUMPTION PROVIDING FOR THE ASSUMPTION OF THE ASSUMED
LIABILITIES, (III) A DULY EXECUTED COUNTERPART OF THE TRANSITIONAL SERVICES
AGREEMENT, (IV) A DULY EXECUTED COUNTERPART OF THE TECHNOLOGY LICENSE AGREEMENT,
(V) A DULY EXECUTED COUNTERPART TO EACH SUPPLY AGREEMENT, (VI) A DULY EXECUTED
COUNTERPART OF EACH SITE LICENSE AND (VII) ALL SUCH OTHER CERTIFICATES AND
DOCUMENTS REQUIRED TO BE DELIVERED TO SELLER OR ANY SELLER SUBSIDIARY AT OR
PRIOR TO THE CLOSING PURSUANT TO THIS AGREEMENT OR ANY ANCILLARY AGREEMENT.
ARTICLE II
PURCHASE PRICE ADJUSTMENT
SECTION 2.01.
Post-Closing Purchase Price Adjustment.
(A)
THE STATEMENT.
WITHIN 60 DAYS AFTER THE CLOSING DATE, PURCHASER SHALL
PREPARE AND DELIVER TO SELLER AN UNAUDITED STATEMENT (THE "STATEMENT"), SETTING
FORTH THE WORKING CAPITAL (AS DEFINED IN SECTION 2.01(D)) AS OF THE CLOSE OF
BUSINESS ON THE CLOSING
10
DATE ("CLOSING WORKING CAPITAL") AND A CERTIFICATE OF PURCHASER THAT THE
STATEMENT HAS BEEN PREPARED IN COMPLIANCE WITH THE REQUIREMENTS OF
SECTION 2.01(D).
THE STATEMENT SHALL BE BASED UPON THE RESULTS OF A PHYSICAL
INVENTORY OF THE INVENTORY OF THE BUSINESS CONDUCTED WITHIN TWO BUSINESS DAYS OF
THE CLOSING DATE.
SELLER SHALL HAVE THE RIGHT TO HAVE A REPRESENTATIVE(S)
PRESENT AT ALL TIMES DURING SUCH PHYSICAL INVENTORY AND PURCHASER SHALL GIVE
SELLER REASONABLE ADVANCED NOTICE OF THE TIME(S) AND PLACE(S) AT WHICH SUCH
PHYSICAL INVENTORY SHALL TAKE PLACE.
SELLER AND THE SELLER SUBSIDIARIES SHALL
ASSIST PURCHASER IN THE PREPARATION OF THE STATEMENT AND THE PARTIES SHALL
PROVIDE ONE ANOTHER WITH ACCESS AT ALL REASONABLE TIMES TO THEIR RESPECTIVE
PERSONNEL, PROPERTIES, BOOKS AND RECORDS OF THE BUSINESS REASONABLY REQUIRED IN
CONNECTION THEREWITH.
SELLER'S INDEPENDENT AUDITORS MAY PARTICIPATE IN THE
PREPARATION OF THE STATEMENT; PROVIDED, HOWEVER, THAT SELLER AND THE SELLER
SUBSIDIARIES ACKNOWLEDGE THAT PURCHASER SHALL HAVE THE PRIMARY RESPONSIBILITY
AND AUTHORITY FOR PREPARING THE STATEMENT.
(B) OBJECTIONS; RESOLUTION OF DISPUTES.
DURING THE 30-DAY PERIOD FOLLOWING
SELLER'S RECEIPT OF THE STATEMENT, SELLER AND ITS INDEPENDENT AUDITOR SHALL BE
PERMITTED TO REVIEW THE WORKING PAPERS RELATING TO THE STATEMENT.
THE STATEMENT
SHALL BECOME FINAL AND BINDING UPON THE PARTIES ON THE 30TH DAY FOLLOWING
DELIVERY THEREOF, UNLESS SELLER GIVES WRITTEN NOTICE OF ITS DISAGREEMENT WITH
THE STATEMENT (A "NOTICE OF DISAGREEMENT") TO PURCHASER ON OR PRIOR TO SUCH
DATE.
ANY NOTICE OF DISAGREEMENT SHALL (I) SPECIFY IN REASONABLE DETAIL THE
NATURE OF ANY DISAGREEMENT SO ASSERTED AND (II) ONLY INCLUDE DISAGREEMENTS BASED
ON MATHEMATICAL ERRORS OR BASED ON CLOSING WORKING CAPITAL NOT BEING CALCULATED
IN ACCORDANCE WITH THIS SECTION 2.01.
IF A NOTICE OF DISAGREEMENT IS RECEIVED
BY PURCHASER IN A TIMELY MANNER, THEN THE STATEMENT (AS REVISED