Common use of Adjustment Process Clause in Contracts

Adjustment Process. (i) Notwithstanding anything herein to the contrary, for purposes of this Section 2.6(c), the terms “Cash Amount Adjustments” and “Closing Cash Amount” shall be deemed to exclude the adjustments under Section 2.6(a)(v), which shall instead be determined in accordance with Section 2.6(b) above and adjusted at the Closing. (ii) On or prior to the fifth (5th) Business Day prior to the Closing Date, Company shall deliver to Buyer a written statement (the “Preliminary Statement”) setting forth in reasonable detail the calculation by Company of the Closing Cash Amount, the Cash Amount Adjustments and the computations used in connection therewith. During the two (2) Business Day period following the receipt by Buyer of the Preliminary Statement, Buyer and its representatives shall be permitted to review during normal business hours and make copies reasonably required of (x) the working papers of Company, and, if relevant, its independent auditors relating to the preparation of the Preliminary Statement and (y) any supporting schedules, supporting analyses and other supporting documentation relating to the preparation of the Preliminary Statement. (iii) In the event Buyer disagrees with the Closing Cash Amount or the Cash Amount Adjustments reflected on the Preliminary Statement, Buyer shall notify Company of such disagreement within two (2) Business Days after receipt thereof (the “Buyer Disagreement Notice”), such Buyer Disagreement Notice to include the amount Buyer believes to be the correct Closing Cash Amount and/or Cash Amount Adjustments, as the case may be. If the Buyer Disagreement Notice is not received by Company within such two Business Day period, the Closing Cash Amount and the Cash Amount Adjustments included in the Preliminary Statement shall be used in order to determine the Purchase Price paid at Closing. (iv) If a Buyer Disagreement Notice which disputes the Closing Cash Amount or the Cash Amount Adjustments included in the Preliminary Statement is received by Company within such two (2) Business Day period, then:

Adjustment Process. (i) Notwithstanding anything herein Sellers shall provide Buyer and its representatives with all assistance and access to the contraryRecords of Network 40 and the Companies necessary for Buyer to calculate Working Capital at Closing. At least ten (10) Business Days prior to the estimated Closing Date, Sellers shall furnish to Buyer a proposed schedule setting forth their calculation of Working Capital and the basis for purposes such calculation, including an identification of (A) all cash, receivables, pre-paid expenses and deposits, and other current assets of Network 40 and the Companies and (B) the outstanding indebtedness for borrowed money, payables, and other current liabilities thereof, both immediately following the Closing. Thereafter, Sellers and Buyer shall negotiate in good faith in order to resolve any disputed amounts contained therein. If Sellers and Buyer have reached agreement on the amount of Working Capital immediately following the Closing in accordance with this Section 2.6(c2.5(b)(i), Sellers represent and warrant to Buyer that Working Capital at Closing will be in the terms “amount so agreed upon. (ii) If the parties have not reached agreement by a date five (5) days before Closing on the amount of Working Capital immediately following the Closing, Buyer shall deliver to Sellers at Closing, and Sellers shall deliver to Buyer at Closing, a notice (a "WORKING CAPITAL NOTICE") containing the calculation of Working Capital made by the party delivering such notice. The calculation of the Final Cash Purchase Price shall be made on the basis of the average of the Working Capital set forth in the two Working Capital Notices. If either Buyer or Sellers, but not both, fail to deliver a timely Working Capital Notice, the Final Cash Purchase Price shall be based on the calculation of Working Capital shown on the Working Capital Notice of the party timely delivering it. If both parties fail to deliver a timely Working Capital Notice, the Initial Cash Purchase Price shall become the Final Cash Purchase Price and the Buyer shall direct the Escrow Agent to deliver the Holdback Amount Adjustments” and “Closing Cash Amount” shall plus interest thereon to the Sellers by a wire transfer of immediately available funds to the Sellers' Accounts no later than five (5) days following the Closing. (iii) If the difference between the Working Capital shown on Sellers' Working Capital Notice differs by more than Fifty Thousand Dollars ($50,000) from the Working Capital shown on the Buyer's Working Capital Notice, then no later than five (5) days after the Closing, either of Buyer or Sellers may deliver a notice to the other (a "DISPUTE NOTICE") stating a desire to submit the difference between them on the calculation of Working Capital to binding resolution by Price Waterhouse L.L.P. or another major accounting firm with no ties to either Buyer or Sellers (the "NEUTRAL ACCOUNTING FIRM") in accordance with this Section 2.5(b)(iii). If neither Buyer nor Sellers delivers a timely Dispute Notice to the other or if the difference in Working Capital on such notices is less than Fifty Thousand Dollars ($50,000), all parties will be deemed to exclude have accepted the adjustments under Section 2.6(a)(v), which shall instead be calculation of Working Capital determined in accordance with Section 2.6(b2.5(b)(ii) above on which the Final Cash Purchase Price was based and adjusted to have waived any right to object to such calculation, provided, however, that by doing so Buyer does not waive any rights it may have under Section 10. If the parties are deemed to have accepted the Working Capital determined in accordance with Section 2.5(b)(ii) pursuant to the preceding sentence, the Buyer shall direct the Escrow Agent to pay the Holdback Amount plus interest thereon to the Sellers by a wire transfer of immediately available funds to the Sellers' Accounts no later than ten (10) days following the Closing. If either party delivers a Dispute Notice to the other, then: (A) Within ten (10) Business Days of such Dispute Notice, the parties shall engage the Neutral Accounting Firm to act as an arbitrator to determine Working Capital at the ClosingClosing Date and the resulting adjustment (the "ARBITRATOR'S ADJUSTMENT") which should be made to the Initial Cash Purchase Price according to the calculation required under Section 2.5(a). The Initial Cash Purchase Price as adjusted by the Arbitrator's Adjustment shall be referred to as the "ARBITRATED FINAL CASH PURCHASE PRICE". (iiB) On The Neutral Accounting Firm shall base its determinations solely on presentations by Buyer and Sellers, and not on any independent investigation or prior to review. The Neutral Accounting Firm's determination (the fifth "DETERMINATION") shall be made within thirty (5th30) Business Day prior to days following the Closing Datedate on which the dispute is submitted, Company shall deliver to Buyer be set forth in a written statement (delivered to Buyer and Sellers, and shall be final, binding and conclusive. In the “Preliminary Statement”) setting forth event a party does not comply with the procedure and time requirements contained herein or such other procedure or time requirements as the parties otherwise elect in reasonable detail writing, the calculation Neutral Accounting Firm shall render a decision based solely on the evidence it has which was timely filed by Company either of the Closing Cash Amount, the Cash Amount Adjustments and the computations used in connection therewith. During the two (2) Business Day period following the receipt by Buyer of the Preliminary Statement, Buyer and its representatives shall be permitted to review during normal business hours and make copies reasonably required of (x) the working papers of Company, and, if relevant, its independent auditors relating to the preparation of the Preliminary Statement and (y) any supporting schedules, supporting analyses and other supporting documentation relating to the preparation of the Preliminary Statementparties. (iiiC) In If the event Arbitrated Final Cash Purchase Price is greater than the Initial Cash Purchase Price (such difference being referred to in this Section 2.5(b)(iii) as the "POSITIVE DIFFERENCE"), Buyer disagrees will pay to Sellers an amount equal to the Positive Difference, plus interest on such amount calculated in accordance with Section 2.5(b)(iii)(F), and shall instruct the Closing Cash Escrow Agent to deliver to Sellers the Holdback Amount or plus interest thereon, no later than five (5) Business Days after delivery of the Determination by the Neutral Accounting Firm, by a wire transfer of immediately available funds to the Sellers' Accounts, in the same proportions as the Cash Payment. (D) If the Arbitrated Final Cash Purchase Price is less than the Initial Cash Purchase Price (such difference being referred to in this Section 2.5(b)(iii) as the "NEGATIVE DIFFERENCE"), the Holdback Amount Adjustments reflected will be reduced by an amount equal to the Negative Difference. The Buyer will instruct the Escrow Agent to deliver the balance of the Holdback Amount, if any, plus interest thereon to Sellers by a wire transfer of immediately available funds to the Sellers' Accounts no later than five (5) Business Days after delivery of the Determination by the Neutral Accounting Firm, in the same proportions as the Cash Payment. (E) If the Negative Difference exceeds the Holdback Amount, Sellers will pay to Buyer an amount equal to such difference, plus interest on such amount calculated in accordance with Section 2.5(b)(iii)(F) and will instruct the Preliminary StatementEscrow Agent to deliver the Holdback Amount to the Buyer, no later than five (5) Business Days after delivery of the Determination by the Neutral Accounting Firm, by a wire transfer of immediately available funds, to an account designated in a written notice from Buyer shall notify Company of such disagreement within to Sellers delivered no more than two (2) Business Days after receipt thereof delivery of the Determination by the Neutral Accounting Firm. (F) Any interest required under this Section 2.5(b)(iii) shall be calculated from the “Buyer Disagreement Notice”), such Buyer Disagreement Notice Closing Date to include the date of payment of the amount Buyer believes to be which such requirement applies, at the correct Closing Cash Amount and/or Cash Amount Adjustments"base rate" of Citibank, as the case may be. If the Buyer Disagreement Notice is not received by Company within such two Business Day periodN.A. or any successor thereto in New York, New York on the Closing Cash Amount and the Cash Amount Adjustments included in the Preliminary Statement shall be used in order to determine the Purchase Price paid at ClosingDate, based on a 360-day year. (iv) The parties agree that the costs of the Neutral Accounting Firm incurred in discharging its obligations under this Section 2.5(b) shall be borne by the parties as follows: (A) If a Buyer Disagreement Notice which disputes the Closing Cash Amount or the Cash Amount Adjustments included Working Capital set forth in the Preliminary Statement Determination of the Neutral Accounting Firm is received more than one hundred five percent (105%) of the Working Capital set forth in Buyer's Working Capital Notice, Buyer shall bear all such costs; (B) If the Working Capital set forth in the Determination of the Neutral Accounting Firm is less than ninety-five percent (95%) of the Working Capital set forth in Sellers' Working Capital Notice, Sellers shall bear all such costs; and (C) In all other cases, including if the conditions in both (A) and (B) above are satisfied simultaneously, Buyer and Sellers shall share such costs equally. (v) Any amounts required to be paid under this Section 2.5(b) by Company within Buyer to Sellers shall be paid to Sellers by a wire transfer of immediately available funds to Sellers' Accounts in the percentages set forth in the notice delivered to Buyer in accordance with Section 2.3(c) or in such two other percentages as may be set forth in a written notice delivered by Sellers to Buyer no less than ten (210) Business Day period, then:days before any such amounts are required to be paid.

Adjustment Process. (i) Notwithstanding anything herein to the contrary, for purposes of this Section 2.6(cSECTION 2.6(C), the terms “THE TERMS "Cash Amount Adjustments” " and “"Closing Cash Amount” " shall be deemed to exclude the adjustments under Section 2.6(a)(vSECTION 2.6(A)(V), which shall instead be determined in accordance with Section 2.6(bSECTION 2.6(B) above and adjusted at the Closing. (ii) On or prior to the fifth (5th) Business Day prior to the Closing Date, Company shall deliver to Buyer a written statement (the “Preliminary Statement”"PRELIMINARY STATEMENT") setting forth in reasonable detail the calculation by Company of the Closing Cash Amount, the Cash Amount Adjustments and the computations used in connection therewith. During the two (2) Business Day period following the receipt by Buyer of the Preliminary Statement, Buyer and its representatives shall be permitted to review during normal business hours and make copies reasonably required of (x) the working papers of Company, and, if relevant, its independent auditors relating to the preparation of the Preliminary Statement and (y) any supporting schedules, supporting analyses and other supporting documentation relating to the preparation of the Preliminary Statement. (iii) In the event Buyer disagrees with the Closing Cash Amount or the Cash Amount Adjustments reflected on the Preliminary Statement, Buyer shall notify Company of such disagreement within two (2) Business Days after receipt thereof (the “Buyer Disagreement Notice”"BUYER DISAGREEMENT NOTICE"), such Buyer Disagreement Notice to include the amount Buyer believes to be the correct Closing Cash Amount and/or Cash Amount Adjustments, as the case may be. If the Buyer Disagreement Notice is not received by Company within such two Business Day period, the Closing Cash Amount and the Cash Amount Adjustments included in the Preliminary Statement shall be used in order to determine the Purchase Price paid at Closing. (iv) If a Buyer Disagreement Notice which disputes the Closing Cash Amount or the Cash Amount Adjustments included in the Preliminary Statement is received by Company within such two (2) Business Day period, then: