Common use of Net Working Capital Clause in Contracts

Net Working Capital. At least three (3) business days prior to the Closing Date, Sellers shall deliver to Buyer a certificate (the “Estimated NWC Certificate”), including a consolidated balance sheet of the Company as of the Closing Date, prepared in accordance with the accounting principles, methods, practices, estimates, judgments and assumptions applied in the preparation of the Company’s financial statements, consistently applied (the “Accounting Principles”), which shall include (a) the Sellers’ good faith estimate (such estimate is referred to as the “Estimated Net Working Capital Amount”) of the “Net Working Capital Amount.” As used herein, “Net Working Capital Amount” means the Net Working Capital of the Company as of 11:59 p.m. EST on the day immediately preceding the Closing Date. “Net Working Capital” means the result of (i) all cash of the Company minus (ii) all current liabilities (excluding the Existing Indebtedness) of the Company, in each case determined in accordance with the Accounting Principles. The Purchase Price at Closing shall be increased by the Estimated Net Working Capital Amount. No later than ninety (90) days following the Closing Date, Buyer shall prepare and deliver to Sellers (i) a consolidated balance sheet of the Company dated at the Closing Date, which shall be prepared in accordance with the Accounting Principles and (ii) a reasonably detailed statement (the “Final NWC Certificate”) setting forth Buyer’s calculations of the Net Working Capital Amount. If Sellers have any objections to the Final NWC Certificate, Sellers shall deliver to Buyer a statement setting forth its objections thereto (an “Objections Statement”), provided that the only bases for objections shall be (i) non-compliance with the standards set forth above for preparation of the Final NWC Certificate, or as set forth in the definition of Net Working Capital, and (ii) mathematical errors. If an Objections Statement is not delivered to Buyer within thirty (30) days after delivery of the Final NWC Certificate, the Final NWC Certificate shall be final, binding and non-appealable by the parties hereto. Sellers and Buyer shall negotiate in good faith to resolve any objections set forth in the Objections Statement (and all such discussions related thereto shall, unless otherwise agreed by Buyer and Sellers, be governed by Rule 408 of the Federal Rules of Evidence (and any applicable similar state rule)), but if they do not reach a final resolution within thirty (30) days after the delivery of the Objections Statement, Sellers and Buyer may submit such dispute to one of the “Big Four” accounting firms other than Ernst & Young LLP or PricewaterhouseCoopers LLP, or, in the event that any such auditor is unable to accept such appointment, to any other nationally recognized independent accounting firm mutually acceptable to Buyer and Sellers (the “Independent Auditor”). Each party shall be afforded an opportunity to present to the Independent Auditor material relating to the disputed issues and to discuss the determination with the Independent Auditor. The Independent Auditor shall act as an auditor and not as an arbitrator and shall resolve matters in dispute and adjust and establish any disputed adjustment of the Net Working Capital Amount to reflect such resolution, provided that the Independent Auditor shall not assign a value to any item or amount in dispute greater than the greatest value for such item or amount assigned by Sellers, on the one hand, or Buyer, on the other hand, or less than the smallest value for such item or amount assigned by Sellers, on the one hand, or Buyer, on the other hand. It is the intent of Buyer and Sellers that the process set forth in this Section 11(F) and the activities of the Independent Auditor in connection herewith are not intended to be and, in fact, are not arbitration and that no formal arbitration rules shall be followed (including rules with respect to procedures and discovery). Sellers and Buyer shall use their commercially reasonable efforts to cause the Independent Auditor to resolve all such disagreements as promptly as practicable. The resolution of the dispute by the Independent Auditor shall be final, binding and non-appealable on the parties hereto. The Final NWC Certificate shall be modified if necessary to reflect such determination. The fees and expenses of the Independent Auditor shall be allocated for payment by Buyer, on the one hand, and/or Sellers, on the other hand, based upon the percentage which the portion of the contested amount not awarded to each party bears to the amount actually contested by such party, as determined by the Independent Auditor. If the Net Working Capital Amount as finally determined pursuant to the dispute resolution procedures described above is greater than the Estimated Net Working Capital Amount shown on the Estimated NWC Certificate, then Buyer shall pay to Sellers cash equal to the amount by which the Net Working Capital Amount exceeds the Estimated Net Working Capital Amount. If the Net Working Capital Amount as finally determined pursuant to the dispute resolution procedures described above is less than the Estimated Net Working Capital Amount shown on the Estimated NWC Certificate, then Sellers shall pay to Buyer cash equal to the amount by which the Estimated Net Working Capital Amount exceeds the Net Working Capital Amount.

Net Working Capital. At least three (3) business days prior In connection with this transaction, it is assumed that the net working capital of BUDEE at the Effective date will be $0.00. If the net working capital is more than $0.00 at the Effective date, the cash portion of the merger consideration will be adjusted accordingly in a Post-Closing Adjustment. If the Net Working Capital exceeds $85,000 due to Parent than Parent shall prepare and on no later than the 90th day following the Closing Date deliver to the Closing Date, Sellers shall deliver to Buyer a certificate (the “Estimated NWC Certificate”), including a consolidated BUDEE an unaudited balance sheet of the Company as of the Closing Date, prepared in accordance with GAAP together with a certificate executed by the accounting principles, methods, practices, estimates, judgments and assumptions applied in the preparation chief financial officer of the Company’s financial statements, consistently applied Parent (the “Accounting Principles”), which shall include (a) the Sellers’ good faith estimate (such estimate is referred to as the “Estimated Net Working Capital Amount”) of the “Net Working Capital Amount.” As used herein, “Net Working Capital Amount” means the Net Working Capital of the Company as of 11:59 p.m. EST on the day immediately preceding the Post-Closing Date. “Net Working Capital” means the result of (i) all cash of the Company minus (ii) all current liabilities (excluding the Existing Indebtedness) of the Company, in each case determined in accordance with the Accounting Principles. The Purchase Price at Closing shall be increased by the Estimated Net Working Capital Amount. No later than ninety (90) days following the Closing Date, Buyer shall prepare and deliver to Sellers (i) a consolidated balance sheet of the Company dated at the Closing Date, which shall be prepared in accordance with the Accounting Principles and (ii) a reasonably detailed statement (the “Final NWC Certificate”) setting forth Buyer’s calculations forth: The actual amount of the (1) Net Working Capital Amount. If Sellers have any objections to (the Final NWC Certificate, Sellers shall deliver to Buyer a statement setting forth its objections thereto (an “Objections StatementActual Net Working Capital”), provided that (2) the only bases for objections shall be aggregate amount of all cash and cash equivalents (ithe “Actual Cash”), and (3) non-compliance the aggregate amount of Indebtedness (the “Actual Indebtedness”). If the BUDEE disagrees with the standards set forth above for preparation Parent’s calculation of the Final NWC Certificate, or as set forth in the definition of Net New Working Capital, and (ii) mathematical errors. If an Objections Statement is not delivered then BUDEE shall deliver a Notice of Disagreement to Buyer within thirty (30) days after delivery of the Final NWC Certificate, the Final NWC Certificate shall be final, binding and non-appealable by the parties hereto. Sellers and Buyer shall negotiate in good faith to resolve any objections set forth in the Objections Statement (and all such discussions related thereto shall, unless otherwise agreed by Buyer and Sellers, be governed by Rule 408 of the Federal Rules of Evidence (and any applicable similar state rule)), but if they do not reach a final resolution Parent within thirty (30) days after the delivery BUDEE’s receipt of the Objections Statement, Sellers and Buyer may submit such dispute to one of the “Big Four” accounting firms other than Ernst & Young LLP or PricewaterhouseCoopers LLP, or, in the event that any such auditor is unable to accept such appointment, to any other nationally recognized independent accounting firm mutually acceptable to Buyer and Sellers Post-Closing Certificate (the “Independent AuditorNotice of Disagreement”). Each party The Notice of Disagreement shall be afforded an opportunity to present to the Independent Auditor material relating to the disputed issues and to discuss the determination with the Independent Auditor. The Independent Auditor shall act as an auditor and not as an arbitrator and shall resolve matters in dispute and adjust and establish any disputed adjustment of the Net Working Capital Amount to reflect such resolution, provided that the Independent Auditor shall not assign a value to any item or amount in dispute greater than the greatest value for such item or amount assigned by Sellers, on the one hand, or Buyer, on the other hand, or less than the smallest value for such item or amount assigned by Sellers, on the one hand, or Buyer, on the other hand. It is the intent of Buyer and Sellers that the process set forth in this Section 11(F) reasonable detail the basis for the BUDEE’s disagreement with the Parent’s determination of the Post-Closing Adjustment, the US dollar amounts of the proposed adjustments and the activities BUDEE’s good faith estimate of the Independent Auditor in connection herewith are not intended to be andPost-Closing Adjustment. If no Notice of Disagreement is received by Parent within such thirty (30) day period, in fact, are not arbitration then the Post-Closing Certificate (and that no formal arbitration rules the Post-Closing Adjustment reflected therein) shall be followed (including rules with respect deemed to procedures and discovery). Sellers and Buyer shall use their commercially reasonable efforts to cause the Independent Auditor to resolve all such disagreements as promptly as practicable. The resolution of the dispute have been accepted by the Independent Auditor BUDEE, shall become final and binding upon the Parties and shall be final, binding and non-appealable on the parties hereto. The “Final NWC Certificate shall be modified if necessary to reflect such determination. The fees and expenses of the Independent Auditor shall be allocated for payment by Buyer, on the one hand, and/or Sellers, on the other hand, based upon the percentage which the portion of the contested amount not awarded to each party bears to the amount actually contested by such party, as determined by the Independent Auditor. If the Net Working Capital Amount as finally determined pursuant to the dispute resolution procedures described above is greater than the Estimated Net Working Capital Amount shown on the Estimated NWC Certificate, then Buyer shall pay to Sellers cash equal to the amount by which the Net Working Capital Amount exceeds the Estimated Net Working Capital Amount. If the Net Working Capital Amount as finally determined pursuant to the dispute resolution procedures described above is less than the Estimated Net Working Capital Amount shown on the Estimated NWC Certificate, then Sellers shall pay to Buyer cash equal to the amount by which the Estimated Net Working Capital Amount exceeds the Net Working Capital AmountClosing Statement.”

Net Working Capital. At least three As promptly as possible, but in any event within sixty (3) business days prior to the Closing Date, Sellers shall deliver to Buyer a certificate (the “Estimated NWC Certificate”), including a consolidated balance sheet of the Company as of the Closing Date, prepared in accordance with the accounting principles, methods, practices, estimates, judgments and assumptions applied in the preparation of the Company’s financial statements, consistently applied (the “Accounting Principles”), which shall include (a) the Sellers’ good faith estimate (such estimate is referred to as the “Estimated Net Working Capital Amount”) of the “Net Working Capital Amount.” As used herein, “Net Working Capital Amount” means the Net Working Capital of the Company as of 11:59 p.m. EST on the day immediately preceding the Closing Date. “Net Working Capital” means the result of (i) all cash of the Company minus (ii) all current liabilities (excluding the Existing Indebtedness) of the Company, in each case determined in accordance with the Accounting Principles. The Purchase Price at Closing shall be increased by the Estimated Net Working Capital Amount. No later than ninety (9060) days following after the Closing Date, Buyer shall prepare and will deliver to Sellers (i) a consolidated balance sheet the Company, with reasonable supporting detail, its calculation of the Company dated at Net Working Capital Adjustment Amount (the “Closing DateStatement”), which shall be prepared in accordance with the Accounting Principles and (ii) a reasonably detailed statement (the “Final NWC Certificate”) setting forth Buyer’s calculations Principles. After delivery of the Net Working Capital AmountClosing Statement, the Company and its representatives shall be permitted reasonable access to review any materials used by Buyer, its Affiliates or representatives in the preparation of the Closing Statement. Buyer shall, and shall cause its Affiliates and representatives to, use reasonable best efforts to cooperate with and respond to the Company’s inquiries in connection with such review. If Sellers have the Company has any objections to the Final NWC CertificateClosing Statement, Sellers it shall deliver to Buyer a statement setting forth an Objections Statement within thirty (30) days after its objections thereto (an “Objections Statement”), provided that the only bases for objections shall be (i) non-compliance with the standards set forth above for preparation receipt of the Final NWC Certificate, or as Closing Statement. An Objections Statement shall set forth in reasonable detail the definition of Net Working Capital, and (ii) mathematical errorsbasis for the items being disputed in good faith. If an Objections Statement is not delivered to Buyer within thirty (30) days after delivery receipt of the Final NWC CertificateClosing Statement, the Final NWC Certificate Closing Statement shall be final, binding and non-appealable by the parties hereto. Sellers The Company hereby waives the right to assert any objection, other than allegations of fraud, with respect to the Closing Statement that is not asserted in an Objections Statement delivered to Buyer within thirty (30) days after its receipt of the Closing Statement. If the Company timely delivers an Objection Statement, the Company and Buyer shall negotiate in good faith to resolve any objections set forth in the Objections Statement (and all such discussions related thereto shall, unless otherwise agreed by Buyer and Sellers, be governed by Rule 408 of the Federal Rules of Evidence (and any applicable similar state rule)), but if identified objections. If they do not reach a final resolution within thirty fifteen (3015) days after the delivery of the Objections Statement, Sellers and the Company or Buyer may may, with written notice to the other party, submit such dispute Dispute to one of the “Big Four” accounting firms other than Ernst & Young LLP or PricewaterhouseCoopers LLP, or, in the event that any such auditor is unable to accept such appointment, to any other nationally recognized independent accounting firm mutually acceptable to Buyer and Sellers (the “Independent Auditor”). Each party shall be afforded an opportunity to present to the Independent Auditor material relating to the disputed issues and to discuss the determination with the Independent Auditor. The Independent Auditor shall act as an auditor and not as an arbitrator and shall resolve matters in dispute and adjust and establish any disputed adjustment of the Net Working Capital Amount to reflect such resolution, provided that the Independent Auditor shall not assign a value to any item or amount in dispute greater than the greatest value for such item or amount assigned by Sellers, on the one hand, or Buyer, on the other hand, or less than the smallest value for such item or amount assigned by Sellers, on the one hand, or Buyer, on the other hand. It is the intent of Buyer and Sellers that the process set forth in this Section 11(F) and the activities of the Independent Auditor in connection herewith are not intended to be and, in fact, are not arbitration and that no formal arbitration rules shall be followed (including rules with respect to procedures and discovery). Sellers Company and Buyer shall use their commercially reasonable efforts to cause the Independent Auditor to resolve all such disagreements as promptly soon as practicable. The resolution of the dispute any Dispute by the Independent Auditor shall be final, binding and non-appealable on the parties hereto. The Final NWC Certificate shall be modified if necessary to reflect such determination. The fees costs and expenses of the Independent Auditor shall be allocated for payment paid fifty percent (50%) by Buyer, on Buyer and fifty percent (50%) by the one hand, and/or Sellers, on the other hand, based upon the percentage which the portion of the contested amount not awarded to each party bears to Company. If the amount actually contested by such party, as determined by the Independent Auditor. If of the Net Working Capital Adjustment Amount as finally determined pursuant to based on the dispute resolution procedures described above final, binding and non-appealable determination of the Net Working Capital Adjustment Amount in accordance with this Section 4.3 is greater than the Estimated estimated Net Working Capital Adjustment Amount shown set forth in the Closing Certificate, Buyer shall promptly pay or cause to be paid to the Company or the appropriate Company Subsidiary as set forth on Schedule 4.7 the amount of such excess in cash. If the amount of the Net Working Capital Adjustment Amount based on the Estimated NWC final, binding and non-appealable determination of the Net Working Capital Adjustment Amount in accordance with this Section 4.3 is less than the estimated Net Working Capital Adjustment Amount set forth in the Closing Certificate, then Buyer and the Company shall pay deliver joint written instructions to Sellers cash the Escrow Agent instructing the Escrow Agent to deliver promptly to Buyer or its designee an amount equal to the amount by which the Net Working Capital Amount exceeds the Estimated Net Working Capital Amount. If the Net Working Capital Amount as finally determined pursuant of such shortfall in cash; provided, that in no circumstances shall Buyer be entitled to the dispute resolution procedures described above is less than the Estimated Net Working Capital Amount shown on the Estimated NWC Certificate, then Sellers shall pay to Buyer cash equal to recover any amount in excess of the amount by which of the Estimated Net Working Capital Amount exceeds the Net Working Capital AmountEscrow Fund.