this
Agreement unless otherwise indicated.
Words in the singular include the plural
and in the plural include the singular.
The word "or" is not exclusive.
The
words "including", "includes", "included" and "include", when used, are deemed
to be followed by the words "without limitation".
ARTICLE II
PURCHASE AND SALE
2.1.
Purchase and Sale.
On the terms and subject to the conditions set forth
herein, the Seller hereby agrees to sell, assign, transfer, convey and deliver
the Assets to the Purchaser, and the Purchaser hereby agrees to purchase and
accept the Assets from the Seller at the Closing, free and clear of all Liens
other than the Assumed Liabilities, as provided for in Section 2.5.
2.2.
Purchase Price.
Subject to the provisions of Section 7.4, in payment for
the Assets, the Purchaser shall pay to the Seller the amount of $15,500,000 (the
"Purchase Price").
2.3.
POST-CLOSING ADJUSTMENTS TO PURCHASE PRICE
(A)
WITHIN 35 DAYS FOLLOWING THE CLOSING DATE, THE PURCHASER SHALL
DELIVER TO THE SELLER A STATEMENT OF THE SELLER'S CURRENT ASSETS AND THE ASSUMED
LIABILITIES PREPARED BY THE PURCHASER AS OF THE CLOSING DATE (THE "CLOSING
STATEMENT").
THE CLOSING STATEMENT SHALL BE PREPARED IN ACCORDANCE WITH UNITED
STATES GENERALLY ACCEPTED ACCOUNTING PRACTICES APPLIED IN A MANNER CONSISTENT
WITH THE NOVEMBER 30 BALANCE SHEET, A COPY OF WHICH IS ATTACHED HERETO AS
SCHEDULE 2.3(A) (THE "NOVEMBER 30 BALANCE SHEET").
IN ORDER TO ALLOW MEANINGFUL
REVIEW BY THE SELLER OF THE CLOSING STATEMENT, FOR THE PERIOD FROM CLOSING AND
INCLUDING 15 BUSINESS DAYS AFTER DELIVERY OF THE CLOSING STATEMENT, THE
PURCHASER SHALL PROVIDE THE SELLER WITH FULL AND UNHINDERED ACCESS DURING NORMAL
BUSINESS HOURS TO ALL FINANCIAL, COMMERCIAL, MARKETING AND ADMINISTRATIVE BOOKS
AND RECORDS RELATING TO THE BUSINESS.
8
(B)
IN THE EVENT THAT THE SELLER DISPUTES THE PRESENTATION OF ANY ITEM
OR ITEMS CONTAINED IN THE CLOSING STATEMENT, THE SELLER SHALL NOTIFY THE
PURCHASER IN WRITING (THE "DISPUTE NOTICE") OF THE AMOUNT, NATURE AND BASIS OF
SUCH DISPUTE, WITHIN 15 BUSINESS DAYS AFTER DELIVERY OF THE CLOSING STATEMENT.
IN THE EVENT OF SUCH A DISPUTE, THE PURCHASER AND THE SELLER SHALL FIRST USE
THEIR BEST EFFORTS TO RESOLVE SUCH DISPUTE BETWEEN THEMSELVES.
IF THE PURCHASER
AND THE SELLER ARE UNABLE TO RESOLVE THE DISPUTE WITHIN 25 CALENDAR DAYS AFTER
DELIVERY OF THE CLOSING STATEMENT, THE DISPUTE SHALL BE SUBMITTED TO AN OFFICE
OF KPMG LOCATED IN A MID-ATLANTIC STATE (THE "ACCOUNTANTS").
THE ACCOUNTANTS
SHALL BE REQUIRED TO RESOLVE THE DISPUTE WITHIN 30 DAYS AFTER SUBMISSION, AND
THEIR DETERMINATION SHALL BE BINDING AND CONCLUSIVE UPON THE PARTIES.
THE FEES
AND EXPENSES OF THE ACCOUNTANTS IN CONNECTION WITH THE RESOLUTION OF DISPUTES
HEREUNDER SHALL BE APPORTIONED BETWEEN THE SELLER AND THE PURCHASER AS PART OF
THE DETERMINATION OF THE RELEVANT DISPUTE OR CONTROVERSY, IN SUCH MANNER AS THE
ACCOUNTANTS SHALL DEEM EQUITABLE IN LIGHT OF THE ISSUES RAISED AND THE DEGREE TO
WHICH THE SELLER OR THE PURCHASER SHALL HAVE PREVAILED ON EACH SUCH ISSUE, IT
BEING THE PARTIES' INTENTION THAT A