Common use of Completion Balance Sheet Clause in Contracts

Completion Balance Sheet. 3.2.1 The parties shall procure that, following Completion, the Completion Balance Sheet shall be drawn up and reviewed in accordance with the provisions of Schedule 7 (Completion Balance Sheet). 3.2.2 The Completion Balance Sheet shall be prepared as at the time of Completion on the Completion Date. 3.2.3 Following preparation of the Completion Balance Sheet in accordance with Schedule 7 (Completion Balance Sheet) and final agreement or deemed agreement or determination (as the case may be) of the Completion Balance Sheet, the provisions of clauses 3.2.4 to 3.2.8 (inclusive) shall become effective. 3.2.4 If the Completion Net Asset Value exceeds the Target Net Asset Value, the Buyer shall pay to the Sellers within 10 Business Days of the date on which the Completion Balance Sheet becomes final and binding on the Sellers and the Buyer in accordance with the provisions of Schedule 7, an amount which is equal to the difference between the Completion Net Asset Value and the Target Net Asset Value (the “Payable Escrow Amount”) which to the extent possible shall be paid to the Sellers in accordance with the terms of Schedule 9 from out of the Escrow Account (together with any accrued interest earned on the Payable Escrow Amount whilst held in the Escrow Account). 3.2.5 If the Payable Escrow Amount is less than the balance then standing to the credit of the Escrow Account, the remaining balance of the Escrow Account (after making the payments as aforesaid to the Sellers) shall be released to the Buyer absolutely. If the Payable Escrow Amount exceeds the Escrow Amount, then the whole of the monies in the Escrow Account (inclusive of any interest earned on the Escrow Amount whilst held in the Escrow Account) shall be payable to the Sellers together with such further amount as shall be necessary to ensure the Sellers then receive the whole of the Payable Escrow Amount (excluding interest earned on the Escrow Amount whilst in the Escrow Account), together also with interest on such further amount calculated at the base rate of Barclays Bank plc for the period from the Completion Date until and including the date of payment. 3.2.6 If the Completion Net Asset Value is equal to the Target Net Asset Value, the whole of the Escrow Amount (together with all interest earned on the monies whilst held in the Escrow Account) shall be released to the Buyer absolutely. 3.2.7 If the Completion Net Asset Value is less than the Target Net Asset Value, the whole of the Escrow Amount (together with all interest earned on the monies whilst held in the Escrow Account) shall be released to the Buyer absolutely, and in addition the Sellers shall repay to the Buyer within 10 Business Days of the date on which the Completion Balance Sheet becomes final and binding on the Sellers and the Buyer in accordance with the provisions of Schedule 7 an amount equal to the difference between the Completion Net Asset Value and the Target Net Asset Value together with interest on such amount calculated at the base rate of Barclays Bank plc for the period from the Completion Date until and including the date of payment. 3.2.8 All payments under this clause 3.2 shall be made by way of telegraphic transfer; if to the Buyer to the Buyer’s Solicitors and, if to the Sellers to the Sellers’Solicitors, in each instance via the other party’s solicitors.

Completion Balance Sheet. 3.2.1 The parties shall procure that6.1 Immediately following the ComTel Completion Date, following Completionthe Seller will, at its own cost, instruct the Seller's Accountant to prepare a draft pro forma consolidated balance sheet (hereinafter referred to as the "Completion Balance Sheet") for the ComTel Companies and the members of the Telecential Group as of the close of business on the ComTel Completion Date (on a going 14 14 concern basis as though the Parties had not consummated the transactions contemplated by this Agreement), for the sole purpose of: (i) establishing whether the amount of the aggregate Net Asset Value as set forth in the Completion Balance Sheet shall be drawn up and reviewed in accordance with (as finally determined pursuant to the provisions of Schedule 7 this Article 6) is lower than the amount of the aggregate Net Asset Value as of the Balance Sheet Date taking into account Capital Contributions and budget net loss between the Balance Sheet Date and the ComTel Completion Date; (ii) establishing the total amount of Indebtedness outstanding as of the ComTel Completion Balance Sheet)Date for the members of the Telecential Group; (iii) establishing a list of each of the agreements corresponding to (ii) with the corresponding amounts outstanding as of the ComTel Completion Date; (iv) establishing the total amount of cash and equivalents in hand or at bank as of the ComTel Completion Date for the ComTel Companies and the members of the Telecential Group. 3.2.2 The Completion Balance Sheet shall be prepared as at the time of Completion on the Completion Date. 3.2.3 Following preparation 6.2 Subject to final determination of the Completion Balance Sheet as set out in accordance with Schedule 7 (Completion Balance Sheet) and final agreement or deemed agreement or determination (as this Article 6, the case may be) Purchase Price shall be adjusted by the amount of the Completion Balance Sheet, Purchase Price Adjustment ("PPA") to reflect the provisions difference in the amount of clauses 3.2.4 to 3.2.8 (inclusive) shall become effective. 3.2.4 If the Completion Net Asset Value exceeds the Target Net Asset Value, the Buyer shall pay according to the Sellers within 10 Business Days of following formula: NAV (cc) - CC + (NL(b) x AD/365) - NAV (aa) and whereby the date on which following shall apply: NAV(aa) is the Completion Balance Sheet becomes final and binding on the Sellers and the Buyer in accordance with the provisions of Schedule 7, an amount which is equal to the difference between the Completion Net Asset Value as shown in the Net Asset Statement in the amount of pound sterling 97,437,000; CC are the Capital Contributions made by any member of the Seller's Group to the ComTel Companies and the Target Net Asset Value (members of the “Payable Escrow Amount”) which Telecential Group between 1 January 1998 and the ComTel Completion Date; AD means the actual number of days from 1 January 1998 to the extent possible shall be paid to the Sellers in accordance with the terms of Schedule 9 from out of the Escrow Account (together with any accrued interest earned on the Payable Escrow Amount whilst held in the Escrow Account). 3.2.5 If the Payable Escrow Amount is less than the balance then standing to the credit of the Escrow Account, the remaining balance of the Escrow Account (after making the payments as aforesaid to the Sellers) shall be released to the Buyer absolutely. If the Payable Escrow Amount exceeds the Escrow Amount, then the whole of the monies in the Escrow Account (inclusive of any interest earned on the Escrow Amount whilst held in the Escrow Account) shall be payable to the Sellers together with such further amount as shall be necessary to ensure the Sellers then receive the whole of the Payable Escrow Amount (excluding interest earned on the Escrow Amount whilst in the Escrow Account), together also with interest on such further amount calculated at the base rate of Barclays Bank plc for the period from the ComTel Completion Date until and including the date of payment. 3.2.6 If the Completion Net Asset Value is equal to the Target Net Asset Value, the whole of the Escrow Amount (together with all interest earned on the monies whilst held in the Escrow Account) shall be released to the Buyer absolutely. 3.2.7 If the Completion Net Asset Value is less than the Target Net Asset Value, the whole of the Escrow Amount (together with all interest earned on the monies whilst held in the Escrow Account) shall be released to the Buyer absolutely, and in addition the Sellers shall repay to the Buyer within 10 Business Days of the date on which the Completion Balance Sheet becomes final and binding on the Sellers and the Buyer in accordance with the provisions of Schedule 7 an amount equal to the difference between the Completion Net Asset Value and the Target Net Asset Value together with interest on such amount calculated at the base rate of Barclays Bank plc for the period from the Completion Date until and including the date of payment. 3.2.8 All payments under this clause 3.2 shall be made by way of telegraphic transfer; if to the Buyer to the Buyer’s Solicitors and, if to the Sellers to the Sellers’Solicitors, in each instance via the other party’s solicitors.both dates inclusive);

Completion Balance Sheet. 3.2.1 7.1 The parties Buyer shall promptly following Completion procure thatthat a balance sheet of the Company as at the Completion Date be prepared: (a) subject to 7.1 (b)-(c) on a basis consistent in all material respects with the balance sheet of the Company comprised in the Accounts; (b) but for the avoidance of doubt making full provision or accrual to reflect any Taxation liability payable by the Company after Completion but arising from an Event occurring on or before Completion; (c) putting no value on Intellectual Property Rights, following the development costs or any tangible assets of the Company; (d) subject to 7.1 (a)-(c) stating the net asset value of the Company as at close of business on the date of Completion, and shall deliver a copy thereof to the Seller together with all working papers relating thereto promptly following Completion (the “Completion Balance Sheet”). 7.2 The Seller may within 21 days after receipt of the Completion Balance Sheet give notice to the Buyer as to whether it disagrees in any respect with the Completion Balance Sheet and if so shall state in reasonable detail the nature of its objection (a “Notice of Objection”). If no Notice of Objection is served within such period the Completion Balance Sheet shall be drawn binding on the parties for the purposes of this clause 7. 7.3 If the Seller gives a Notice of Objection and the parties are able to agree their differences they shall draw up and reviewed in accordance with an amended balance sheet which they agree to substitute for the provisions of Schedule 7 Completion Balance Sheet (the “Substitute Completion Balance Sheet”). 3.2.2 7.4 At any time after a Notice of Objection is served, either party may refer the matter to a partner in a firm of chartered accountants whose identity is agreed upon between them or in the absence of agreement is nominated by the President of the Institute of Chartered Accountants for England and Wales to resolve the matter (the “Expert”). The Completion Balance Sheet Expert shall act as an expert (not as an arbitrator) and shall be prepared entitled to call for such written or oral evidence as at he feels appropriate. The parties agree to provide all reasonable co-operation with the Expert and to provide such evidence or information as the Expert requires from time to time. However, the Expert shall be instructed to reach a conclusion within 28 days of Completion on the Completion Date. 3.2.3 Following preparation referral of the matter to him and to express such conclusion by way of amendments to or substitution of the Completion Balance Sheet in accordance with Schedule 7 another balance sheet drawn up to close of business on the date of Completion (the “Determined Completion Balance Sheet”). His costs shall be borne by the parties in equal amounts (unless he feels it is otherwise appropriate) and in the absence of fraud or manifest error his decision shall be final agreement or deemed agreement or determination (as and binding. 7.5 If the case may be) of net asset value shown on the Completion Balance Sheet, Sheet (or if a Notice of Objection has been served the provisions of clauses 3.2.4 to 3.2.8 net asset value as shown in the Substitute Completion Balance Sheet (inclusiveif any) shall become effective. 3.2.4 If or the Determined Completion Net Asset Value exceeds Balance Sheet (if any)) is less than 0 the Target Net Asset Value, the Buyer Seller shall pay to the Sellers Buyer at the Seller’s sole option in cash or by cancellation of Consideration Shares the amount of such deficit within 10 Business Days 7 days of the date on which the Completion Balance Sheet becomes final and binding on the Sellers and the Buyer in accordance with the provisions agreement, determination or deemed agreement of Schedule 7, an amount which such balance sheet. Where any deficit is equal to the difference between the Completion Net Asset Value and the Target Net Asset Value (the “Payable Escrow Amount”) which to the extent possible shall be paid to the Sellers in accordance with the terms of Schedule 9 from out of the Escrow Account (together with any accrued interest earned on the Payable Escrow Amount whilst held in the Escrow Account). 3.2.5 If the Payable Escrow Amount is less than the balance then standing to the credit of the Escrow Account, the remaining balance of the Escrow Account (after making the payments as aforesaid to the Sellers) shall be released to the Buyer absolutely. If the Payable Escrow Amount exceeds the Escrow Amount, then the whole of the monies in the Escrow Account (inclusive of any interest earned on the Escrow Amount whilst held in the Escrow Account) shall be payable to the Sellers together with such further amount as shall be necessary to ensure the Sellers then receive the whole of the Payable Escrow Amount (excluding interest earned on the Escrow Amount whilst in the Escrow Account), together also with interest on such further amount calculated at the base rate of Barclays Bank plc for the period from the Completion Date until and including the date of payment. 3.2.6 If the Completion Net Asset Value is equal to the Target Net Asset Value, the whole of the Escrow Amount (together with all interest earned on the monies whilst held in the Escrow Account) shall be released to the Buyer absolutely. 3.2.7 If the Completion Net Asset Value is less than the Target Net Asset Value, the whole of the Escrow Amount (together with all interest earned on the monies whilst held in the Escrow Account) shall be released to the Buyer absolutely, and in addition the Sellers shall repay to the Buyer within 10 Business Days of the date on which the Completion Balance Sheet becomes final and binding on the Sellers and the Buyer in accordance with the provisions of Schedule 7 an amount equal to the difference between the Completion Net Asset Value and the Target Net Asset Value together with interest on such amount calculated at the base rate of Barclays Bank plc for the period from the Completion Date until and including the date of payment. 3.2.8 All payments under this clause 3.2 shall be made by way of telegraphic transfer; if to the Buyer to the Buyer’s Solicitors and, if to the Sellers to the Sellers’Solicitors, in each instance via the other party’s solicitors.met by

Completion Balance Sheet. 3.2.1 4.1.1 The parties Sellers and the Purchaser acknowledge that the Consideration is based on the assumptions that on the Completion Date, (1) the Actual Cash shall procure thatbe equal to the Estimated Cash, following Completion(2) the Actual Debt shall be equal to the Estimated Debt, (3) the Actual Seller Transaction Costs shall be equal to the Estimated Seller Transaction Costs and (4) the Actual Working Capital shall be equal to the Estimated Working Capital, provided that Actual Cash, Actual Debt, Actual Seller Transaction Costs and Actual Working Capital shall be established after the Completion Date pursuant to this Clause 4.1. 4.1.2 The Actual Cash, Actual Debt, Actual Seller Transaction Costs and Actual Working Capital shall be established after the Completion Date as follows: (a) As soon as reasonably possible after the Completion Date, the Purchaser shall prepare, (i) the Company’s unaudited accounts as of 11:59 pm CET on the date prior to the Completion Date and (ii) a calculation of Actual Cash, Actual Debt, Actual Seller Transaction Costs and Actual Working Capital (collectively the Completion Balance Sheet), which shall be prepared, in the case of each of clauses (i) and (ii) (excluding Actual Seller Transaction Costs), in accordance with EU-IFRS and consistent with the internal accounting standards, policies and principles of the Company as used in preparation of the Accounts. The Purchaser shall submit the Completion Balance Sheet shall be drawn up to the Sellers’ Representative as promptly as practicable and reviewed in accordance with any event within ninety (90) days after the provisions of Schedule 7 Completion Date (Completion Balance Sheetthe First Date). 3.2.2 The . In case the Purchaser fails to submit the Completion Balance Sheet to the Sellers’ Representative within ninety (90) days, the Sellers’ Representative shall have the option to either (i) confirm in writing to the Purchaser that the Initial Consideration Certificate shall be prepared as at binding or (ii) prepare the time of Completion on Balance Sheet and submit it to Purchaser, both within ninety (90) days from the Completion Date. 3.2.3 Following preparation of (b) Within thirty (30) days after the Completion Balance Sheet in accordance with Schedule 7 First Date (Completion Balance Sheet) and final agreement the Second Date), the Sellers’ Representative (or deemed agreement or determination (the Purchaser as the case may be) shall notify the Purchaser (or Sellers’ Representative) in writing of any item in the Completion Balance Sheet the Sellers wish to dispute, setting out the reasons for such dispute and a list of proposed amendments. The Sellers’ Representative and the Purchaser shall consult with each other and seek agreement on the disputed item(s) within 30 days from the Second Date. In case the Sellers’ Representative (or the Purchaser as the case may be) has not confirmed in writing items of the Completion Balance SheetSheet that the Sellers dispute before the Second Date, the provisions of clauses 3.2.4 to 3.2.8 Sellers (inclusiveor the Purchaser as the case may be) shall become effectivebe deemed not to dispute such items of the Completion Balance Sheet and the Cash, Debt, Seller Transaction Costs and Working Capital included therein shall be final and binding to the Parties. 3.2.4 (c) If the Completion Net Asset Value exceeds Sellers’ Representative and the Target Net Asset ValuePurchaser have not been able to resolve the disputed items in full within thirty (30) days from the Second Date, the Buyer Sellers’ Representative and the Purchaser shall pay appoint an independent accountant (the Independent Accountant) who is mutually acceptable to them to resolve any remaining objections. If the Sellers Sellers’ Representative and the Purchaser are unable to agree on the choice of the Independent Accountant within 10 ten (10) Business Days, the Independent Accountant shall be appointed or designated for appointment by the president of the Dutch professional organization of accountants (Nederlandse Beroepsorganisatie van Accountants, NBA) at the request of the Sellers’ Representative or the Purchaser, whoever contacts the president of the NBA first. Such appointment shall be binding on the Parties. (d) The Independent Accountant’s term of reference shall be as follows: (i) the Purchaser and the Sellers’ Representative shall each promptly, and in any event within fifteen (15) Business Days of the date referral, prepare a written statement on the item(s) in dispute which (together with the Completion Balance Sheet becomes relevant documents) shall be submitted to the Independent Accountant for determination; (ii) the Sellers’ Representative and the Purchaser shall each, to the extent that they are reasonably able to do so, provide the Independent Accountant with all information he reasonably requires; (iii) the Independent Accountant shall be instructed to complete his final determination as soon as possible but in no event later than thirty (30) Business Days from the receipt of written statements by both the Purchaser and the Sellers’ Representative under Clause 4.1.2(d)(i); (iv) the Independent Accountant shall act as an expert (and not as an arbitrator) in making any such determination; (v) the Independent Accountant’s final determination of the Actual Cash, Actual Debt, Actual Seller Transaction Costs and Actual Working Capital shall be binding on the Sellers Parties; and (vi) the expenses of the Independent Accountant shall be borne between the Purchaser and the Buyer Sellers in equal proportions (50/50), unless the Independent Accountant shall in his discretion determine otherwise. 4.1.3 Following the final determination of the Actual Cash, Actual Debt, Actual Seller Transaction Costs and Actual Working Capital pursuant to Clause 4.1.2, the Purchaser shall re-calculate the Consideration, replacing Estimated Cash with Actual Cash, Estimated Debt with Actual Debt, Estimated Seller Transaction Costs with Actual Seller Transaction Costs and Estimated Working Capital with Actual Working Capital. If the Consideration that would have been payable using the re-calculation set forth in this Clause 4.1.3 exceeds the Initial Consideration calculated in accordance with Clause 3.1, then the provisions of Schedule 7, an amount which is equal Purchaser shall credit to the difference between Notary’s Account the Completion Net Asset Value amount of such excess, and the Target Net Asset Value Purchaser and the Sellers’ Representative shall promptly (the “Payable Escrow Amount”and in any event within five (5) which Business Days) provide a joint written instruction to the extent possible shall be paid Escrow Agent to deliver the Adjustment Escrow Amount to the Notary’s Account, in each case for further distribution to the Sellers in accordance with the terms of Schedule 9 from out of the Escrow Account (together with any accrued interest earned on the Payable Escrow Amount whilst held their respective Pro Rata Part as set forth in the Escrow Account). 3.2.5 Consideration Spreadsheet. If the Payable Escrow Amount Consideration that would have been payable using the re-calculation set forth in this Clause 4.1.3 is less than the balance Initial Consideration calculated in accordance with Clause 3.1, then standing such excess shall be payable from the Adjustment Escrow Account and, to the credit of extent the Adjustment Escrow AccountAmount is insufficient to satisfy such payment, then such shortfall shall be payable from the remaining balance of the Indemnity Escrow Account (after making in which case the payments as aforesaid Purchaser and the Sellers’ Representative shall promptly (and in any event within five (5) Business Days) provide a joint written instruction to the Sellers) shall be released Escrow Agent to deliver to the Buyer absolutely. If Purchaser such excess amount from the Payable Escrow Amount exceeds the Escrow Amount, then the whole of the monies in the Adjustment Escrow Account (inclusive of any interest earned on and, if applicable, the Escrow Amount whilst held in the Escrow Account) shall be payable to the Sellers together with such further amount as shall be necessary to ensure the Sellers then receive the whole of the Payable Escrow Amount (excluding interest earned on the Escrow Amount whilst in the Indemnity Escrow Account), together also with interest on such further amount calculated at the base rate . Payment of Barclays Bank plc for the period from the Completion Date until and including the date of payment. 3.2.6 If the Completion Net Asset Value is equal any Adjustment payable pursuant to the Target Net Asset Value, the whole Clause 4.1.3 shall be deemed to be an adjustment of the Escrow Amount (together with all interest earned on the monies whilst held in the Escrow Account) shall be released to the Buyer absolutelyConsideration. 3.2.7 If the Completion Net Asset Value is less than the Target Net Asset Value, the whole of the Escrow Amount (together with all interest earned on the monies whilst held in the Escrow Account) shall be released to the Buyer absolutely, and in addition the Sellers shall repay to the Buyer within 10 Business Days of the date on which the Completion Balance Sheet becomes final and binding on the Sellers and the Buyer in accordance with the provisions of Schedule 7 an amount equal to the difference between the Completion Net Asset Value and the Target Net Asset Value together with interest on such amount calculated at the base rate of Barclays Bank plc for the period from the Completion Date until and including the date of payment. 3.2.8 All payments under this clause 3.2 shall be made by way of telegraphic transfer; if to the Buyer to the Buyer’s Solicitors and, if to the Sellers to the Sellers’Solicitors, in each instance via the other party’s solicitors.