Common use of Closing Statement; Adjustment to Net Purchase Price Clause in Contracts

Closing Statement; Adjustment to Net Purchase Price. (a) Within 90 days after the Closing Date, the Parent shall cause the Company to prepare and deliver to the Stockholder Representative a statement approved by the Parent (the “Closing Statement”), which shall include (i) a consolidated balance sheet (the “Closing Date Balance Sheet”) of the Company and its Subsidiaries as of the Closing Date prepared in accordance with GAAP Consistently Applied, (ii) a statement based on such Closing Date Balance Sheet setting forth in reasonable detail a calculation of the Working Capital as of immediately prior to the Closing (“Closing Date Working Capital”), and (iii) Debt as of immediately prior to the Closing (the “Closing Date Debt”). Prior to delivery of the Closing Statement, the Company shall afford to the Stockholder Representative and its representatives the ability to observe the preparation of the Closing Statement and shall make its senior financial officers reasonably available to answer any questions regarding such calculations and the Company’s preparation of the Closing Statement. Notwithstanding the foregoing and notwithstanding the calculation of Estimated Closing Debt or anything else to the contrary set forth in this Agreement, (x) the aggregate amount to be included in the computation of Closing Date Debt with respect to the nine (9) items set forth under the heading “Company Expenses / Payments Triggered by the Merger” in the Estimated Debt calculation delivered by the Company to the Parent on December 19, 2003 (the “Estimated Merger Expenses”) shall not be less than $9,750,000 and (y) in the event that, after the Closing but on or prior to January 30, 2004, the Company has received the Tug Sale Proceeds, Closing Date Debt shall be reduced by the Second Advance Amount; provided that notwithstanding the foregoing, in no event shall Closing Date Debt be reduced pursuant to clause (y) of this sentence to the extent any such payments to Atlantic Marine, Inc. already reduced Estimated Closing Debt. (b) Each of the Company, the Stockholder Representative and Parent agrees that it will, and it will use reasonable efforts to cause its respective agents and representatives to, cooperate and assist in the preparation of the Closing Statement and the calculation of the Closing Date Working Capital and the Closing Date Debt and in the conduct of the reviews and dispute resolution process referred to in this Section 2.10. (c) During the 20-day period following the Stockholder Representative’s receipt of the Closing Statement, the Stockholder Representative and its independent accountants shall at Stockholder Representative’s expense be permitted to review, and the Parent shall make available to the Stockholder Representative, the supporting schedules, analyses, working papers and other documentation of the Parent relating to the Closing Statement and to ask questions, receive answers and request such other data and information from each of them as shall be reasonable under the circumstances. The Closing Statement shall become final and binding upon the parties on the Business Day following the 20th day following delivery thereof (and the Working Capital amounts reflected therein shall be deemed to be the Closing Date Working Capital and the Debt amounts reflected therein shall be deemed to be the Closing Date Debt), unless the Stockholder Representative gives written notice of its disagreement with the Closing Statement (“Notice of Disagreement”) to the Parent prior to such date; provided that the only bases on which the Stockholder Representative shall be permitted to submit a Notice of Disagreement is (i) that Closing Date Working Capital and/or Closing Date Debt were not prepared in accordance with GAAP Consistently Applied, (ii) that the calculation includes computational errors and (iii) that Closing Date Working Capital and/or Closing Date Debt has not been calculated in accordance with the principles set forth in this Section 2.10. Any Notice of Disagreement shall specify in reasonable detail the nature of any disagreement so asserted, and the Stockholder Representative shall make available all supporting schedules, analyses, working papers and other documentation. The Stockholder Representative shall be deemed to have agreed with all items and amounts included in the calculation of Closing Date Working Capital and Closing Date Debt delivered pursuant to Section 2.10(a) except such items that are specifically disputed in the Notice of Disagreement. During the 15-day period following the delivery of a Notice of Disagreement that complies with the preceding paragraph or such longer period as the Stockholder Representative and Parent shall mutually agree, the Stockholder Representative and Parent shall seek in good faith to resolve in writing any differences that they may have with respect to the matters specified in the Notice of Disagreement, and in the event the Stockholder Representative and Parent are able to reach such resolution then the amount so agreed by them in writing shall be deemed to be Closing Date Working Capital and/or the Closing Date Debt, as the case may be. If, at the end of such 15-day period (or such longer period as mutually agreed between the Stockholder Representative and Parent), the Stockholder Representative and Parent have not so resolved such differences, the Stockholder Representative and Parent shall submit the dispute for resolution to an independent accounting firm (the “Arbiter”) for review and resolution of any and all matters which remain in dispute and which were properly included in the Notice of Disagreement in accordance with this Section 2.10. The Arbiter shall be a mutually acceptable internationally recognized independent public accounting firm agreed upon by the Stockholder Representative and Parent in writing; provided, that in the event the parties are not able to mutually agree on an accounting firm, the Arbiter shall be Pricewaterhouse Coopers LLP. The Stockholder Representative and Parent shall use reasonable efforts to cause the Arbiter to render a decision resolving the matters in dispute within 30 days following the submission of such matters to the Arbiter, or such longer period as the Stockholder Representative and Parent shall mutually agree. The Stockholder Representative and Parent agree that the determination of the Arbiter shall be final and binding upon the parties and that judgment may be entered upon the determination of the Arbiter in any court having jurisdiction over the party against which such determination is to be enforced; provided, that the scope of the disputes to be resolved by the Arbiter is limited to only such items included in the Closing Statement that the Stockholder Representative has disputed in the Notice of Disagreement. The Arbiter shall determine, based solely on presentations by Parent and the Stockholder Representative and their respective representatives, and not by independent review, only those issues in dispute specifically set forth on the Notice of Disagreement and shall prepare the Final Closing Statement and render a written report as to the dispute and the resulting calculation of Closing Date Working Capital and/or Closing Date Debt, as appropriate, which shall be conclusive and binding upon the parties. In resolving any disputed item, the Arbiter: (i) shall be bound by the principles set forth in Section 2.10 hereof, (ii) shall limit its review to matters specifically set forth in the Notice of Disagreement and (iii) shall not assign a value to any item greater than the greatest value for such item claimed by either party or less than the smallest value for such item claimed by either party. The fees, costs, and expenses of the Arbiter (x) shall be borne by the holders of Company Common Stock as of immediately prior to consummation of the Merger in the proportion that the aggregate dollar amount of such disputed items so submitted that are unsuccessfully disputed by the Stockholder Representative (as finally determined by the Arbiter) bears to the aggregate dollar amount of such items so submitted and (y) shall be borne by Parent in the proportion that the aggregate dollar amount of such disputed items so submitted that are successfully disputed by the Stockholder Representative (as finally determined by the Arbiter) bears to the aggregate dollar amount of such items so submitted. Whether any dispute is resolved by agreement among the parties or by the Arbiter, changes to the Closing Statement shall be made hereunder only for items as to which Parent has taken exception in the Notice of Disagreement. The fees and expenses of Parent incurred in connection with the preparation of the Closing Statement and review of any Notice of Disagreement shall be borne by Parent, and the fees and expenses of the Stockholder Representative’s independent accountants incurred in connection with their review of the Closing Statement shall be borne by the holders of Company Common Stock. (d) Upon determination of the Final Working Capital and Final Debt, the Common Stock Merger Consideration shall be further adjusted as follows: (i) The Common Stock Merger Consideration shall be increased dollar-for-dollar by the amount by which the Final Working Capital exceeds the Estimated Working Capital; (ii) The Common Stock Merger Consideration shall be reduced dollar-for-dollar by the amount by which the Estimated Working Capital exceeds the Final Working Capital; (iii) The Common Stock Merger Consideration shall be increased dollar-for-dollar by the amount by which the Estimated Debt exceeds the Final Debt; and (iv) The Common Stock Merger Consideration shall be reduced dollar-for-dollar by the amount by which the Final Debt exceeds the Estimated Debt. (e) The cumulative net adjustment to the Common Stock Merger Consideration pursuant to (i) through (iv) of Section 2.10(d) above, whether positive or negative, is the “Final Adjustment Amount.” Within 10 business days after the Closing Statement becomes final and binding upon the parties (i) if the net effect pursuant to this Section 2.10 is an increase in the Common Stock Merger Consideration, Parent shall make a cash payment to the holders of Company Common Stock, in an amount equal to such holder’s Pro Rata Share of such increase and (ii) if the net effect pursuant hereto is a decrease in the Merger Consideration, each holder of Company Common Stock, by virtue of payments from the Escrow Fund in accordance with the procedures set forth in Section 8.3(e)(ii), in accordance with such holder’s Pro Rata Share of such decrease, shall make payment to the Surviving Corporation to an account designated in writing by the Surviving Corporation, by wire transfer in immediately available funds of the amount of such Final Adjustment Amount, in either case under clause (i) or (ii) of this Section 2.10(e), together with interest thereon from the Closing Date to the date of actual payment at a variable rate equal to the prime rate (as reported in the Wall Street Journal “Money Rates”) from and including the Closing Date to, but not including, the date of payment (the “Adjustment Interest”).

Closing Statement; Adjustment to Net Purchase Price. (a) Within 90 60 days after the Closing Date, the Parent Surviving Corporation shall cause the Company to prepare be prepared and shall deliver to the Stockholder Representative (as hereinafter defined) a statement approved by the Parent (the “Closing Statement”), which shall include (i) a reviewed consolidated balance sheet (the “Closing Date Balance Sheet”) of the Company Airxcel and its Subsidiaries as of the close of business on the Closing Date prepared in accordance with GAAP Consistently Applied, (ii) a statement based on such Closing Date Balance Sheet setting forth in reasonable detail a calculation of the Working Capital as of immediately prior to the close of business on the Closing Date (“Closing Date Working Capital”), ) and (iii) Debt as of immediately prior to the close of business on the Closing Date (the “Closing Date Debt”). Prior to delivery of the Closing Statement, the Company shall afford to the Stockholder Representative and its representatives the ability to observe the preparation of the Closing Statement and Surviving Corporation shall make its senior financial officers reasonably available during regular business hours to answer any questions of the Stockholder Representative regarding such calculations and the Company’s preparation of the Closing Statement. Notwithstanding the foregoing and notwithstanding the calculation of Estimated Closing Debt or anything else to the contrary set forth in this Agreement, (x) the aggregate amount to be included in the computation of Closing Date Debt with respect to the nine (9) items set forth under the heading “Company Expenses / Payments Triggered by the Merger” in the Estimated Debt calculation delivered by the Company to the Parent on December 19, 2003 (the “Estimated Merger Expenses”) shall not be less than $9,750,000 and (y) in the event that, after the Closing but on or prior to January 30, 2004, the Company has received the Tug Sale Proceeds, Closing Date Debt shall be reduced by the Second Advance Amount; provided that notwithstanding the foregoing, in no event shall Closing Date Debt be reduced pursuant to clause (y) of this sentence to the extent any such payments to Atlantic Marine, Inc. already reduced Estimated Closing Debt. (b) Each of the CompanySurviving Corporation, the Stockholder Representative and Parent agrees that it will, and it will use reasonable efforts to cause its respective agents and representatives to, cooperate and assist in the preparation of the Closing Statement and the calculation of the Closing Date Working Capital and the Closing Date Debt and in the conduct of the reviews and dispute resolution process referred to in this Section 2.102.9. (c) During the 20-day period following the Stockholder Representative’s receipt of the Closing Statement, the Stockholder Representative and its independent accountants shall at the Stockholder Representative’s expense be permitted to review, and the Parent Company shall make available to the Stockholder RepresentativeRepresentative upon request, the supporting schedules, analyses, working papers and other documentation of the Parent Company relating to the Closing Statement and to ask questions, receive answers and request such other data and information from each of them as shall be reasonable under the circumstances. The Closing Statement shall become final and binding upon the parties on the Business Day following the 20th day following delivery thereof (and the statement of Closing Date Working Capital amounts reflected therein shall be deemed to be the Closing Date Working Capital and the statement of Closing Date Debt amounts reflected therein shall be deemed to be the Closing Date Debt), unless the Stockholder Representative gives written notice of its disagreement with the Closing Statement (“Notice of Disagreement”) to the Parent Company prior to such date; provided that the only bases on which the Stockholder Representative shall be permitted to submit a Notice of Disagreement is (i) that Closing Date Working Capital and/or Closing Date Debt were not prepared in accordance with GAAP Consistently Applied, (ii) that the calculation includes computational errors and (iii) that Closing Date Working Capital and/or Closing Date Debt has not been calculated in accordance with the principles set forth in this Section 2.10. Any The Notice of Disagreement shall specify in reasonable detail the nature and amount of any disagreement so asserted, and the Stockholder Representative shall make available all supporting schedules, analyses, working papers and other documentation. The Stockholder Representative shall be deemed to have agreed with all items and amounts included in the calculation of Closing Date Working Capital and Closing Date Debt delivered pursuant to Section 2.10(a) except such items that are specifically disputed in the Notice of Disagreementasserted therein. During the 15-day period following the delivery of a Notice of Disagreement that complies with the preceding paragraph or such longer period as the Stockholder Representative and Parent shall mutually agree, the Stockholder Representative and Parent shall seek in good faith to resolve in writing any differences that they may have with respect to the matters specified in the Notice of Disagreement, and in the event the Stockholder Representative and Parent are able to reach such resolution then the amount so agreed by them in writing shall be deemed to be the Closing Date Working Capital and/or the Closing Date Debt, as the case may be. If, at the end of such 15-day period (or such longer period as mutually agreed between the Stockholder Representative and Parent), the Stockholder Representative and Parent have not so resolved such differences, the Stockholder Representative and Parent shall submit the dispute for resolution to an independent accounting firm (the “Arbiter”) for review and resolution of any and all matters which remain in dispute and which were properly included in the Notice of Disagreement in accordance with this Section 2.102.9. The Arbiter shall be a mutually acceptable internationally recognized independent public accounting firm agreed upon by the Stockholder Representative and Parent in writing; provided, that in the event the parties are not able to mutually agree on an accounting firm, the Arbiter shall be Pricewaterhouse Coopers LLP. The Stockholder Representative and Parent shall use reasonable efforts to cause the Arbiter to render a decision resolving the matters in dispute within 30 days following the submission of such matters to the Arbiter, or such longer period as the Stockholder Representative and Parent shall mutually agree. The Stockholder Representative and Parent agree that the determination of the Arbiter shall be final and binding upon the parties and that judgment may be entered upon the determination of the Arbiter in any court having jurisdiction over the party against which such determination is to be enforced; provided, that the scope of the disputes to be resolved by the Arbiter is limited to only such items included in the Closing Statement that the Stockholder Representative has specifically disputed in the Notice of Disagreement. The Arbiter shall determine, based solely on presentations by Parent and the Stockholder Representative and their respective representatives, and not by independent review, only those issues in dispute specifically set forth on the Notice of Disagreement and shall prepare the Final Closing Statement and render a written report as to the dispute and the resulting calculation of Closing Date Working Capital and/or Closing Date Debt, as appropriate, which shall be conclusive and binding upon the parties. In resolving any disputed item, the Arbiter: (i) shall be bound by the principles set forth in Section 2.10 2.9 hereof, (ii) shall limit its review to matters specifically set forth in the Notice of Disagreement and (iii) shall not assign a value to any item greater than the greatest value for such item claimed by either party or less than the smallest value for such item claimed by either party. The fees, costs, costs and expenses of the Arbiter (x) shall be borne by the holders of Company Common Stock as of immediately prior to consummation of the Merger Parent in the proportion that the aggregate dollar amount of such disputed items so submitted to the extent that they are unsuccessfully successfully disputed by the Stockholder Representative (as finally determined by the Arbiter) bears to the aggregate dollar amount of such items so submitted and (y) shall be borne by Parent the holders at Closing of Company Common Stock in the proportion that the aggregate dollar amount of such disputed items so submitted to the extent that they are successfully unsuccessfully disputed by the Stockholder Representative (as finally determined by the Arbiter) bears to the aggregate dollar amount of such items so submitted. Whether any dispute is resolved by agreement among the parties or by the Arbiter, changes to the Closing Statement shall be made hereunder only for items as to which Parent the Stockholder Representative has taken exception in the Notice of Disagreement. The fees and expenses of Parent incurred in connection with the preparation of the Closing Statement and review of any Notice of Disagreement shall be borne by Parentthe Surviving Corporation, and the fees and expenses of the Stockholder Representative’s independent accountants incurred in connection with their review of the Closing Statement shall be borne by the holders at Closing of Company Common Stock. (d) Upon determination of the Final Working Capital and Final Debt, the Common Stock Merger Consideration shall be further adjusted as follows: (i) The Common Stock Merger Consideration shall be increased dollar-for-dollar by the amount amount, if any, by which the Final Working Capital exceeds the Estimated Working Capital; (ii) The Common Stock Merger Consideration shall be reduced dollar-for-dollar by the amount amount, if any, by which the Estimated Working Capital exceeds the Final Working Capital; (iii) The Common Stock Merger Consideration shall be increased dollar-for-dollar by the amount amount, if any, by which the Estimated Debt exceeds the Final Debt; and (iv) The Common Stock Merger Consideration shall be reduced dollar-for-dollar by the amount amount, if any, by which the Final Debt exceeds the Estimated Debt. (e) The cumulative net adjustment to the Common Stock Merger Consideration pursuant to (i) through (iv) of Section 2.10(d2.9(d) above, whether positive or negative, is the “Final Adjustment Amount.” ”. Within 10 business days Business Days after the Closing Statement becomes final and binding upon the parties (i) if the net effect pursuant to this Section 2.10 2.9 is an increase in the Common Stock Merger Consideration, Parent shall make a cash payment to deposit with the Exchange Agent (1) in trust for the benefit of the holders at Closing of the shares of Company Common Stock, in Stock an amount in cash equal to the product of (A) the number of shares of Company Common Stock held by such holder’s Pro Rata holders immediately prior to the Effective Time and (B) the Per Share Adjustment Consideration and (2) in trust for the benefit of the holders at Closing of each Company Warrant an amount in cash equal to the product of (A) the number of shares of Company Class B Stock subject to the Company Warrants held by such increase holders immediately prior to the Effective Time and (B) the Per Share Adjustment Consideration and (ii) if the net effect pursuant hereto is a decrease in the Common Stock Merger Consideration, each holder at Closing of the Company Common StockStock and each Company Warrant shall (x) first, by virtue of payments by the Escrow Agent from the Escrow Fund in accordance with the procedures set forth in Section 8.3(e)(ii), in accordance with such holder’s Pro Rata Share of such decrease, shall make be deemed to have made a payment to the Surviving Corporation to an account designated in writing by the Surviving Corporation, by wire transfer in immediately available funds of the lesser of (1) the amount of such Final Adjustment AmountAmount and (2) the Adjustment Holdback Consideration, and (y) second, if the Final Adjustment Amount exceeds the Adjustment Holdback Consideration, each holder at Closing of the Company Common Stock and Company Warrants shall pay to the Surviving Corporation, by wire transfer of immediately available funds, its pro rata portion of such excess (based on the number of shares of Common Stock (assuming the exercise of the Company Warrants) held at Closing by such holder). Upon Parent’s deposit with the Exchange Agent of the amounts set forth in either case under clause subsection (i) or (ii) of this Section 2.10(e2.9(e), together with interest thereon the Parent shall have no further obligation to the holders of Company Common Stock and Company Warrants pursuant to this Section 2.9 and each holder at Closing of shares of Company Common Stock and of Company Warrants, as the case may be, shall be entitled to receive promptly from the Closing Date Exchange Agent the Per Share Adjustment Consideration for each share of Company Common Stock held by, or subject to Company Warrants held by, such holder at Closing. Any Person entitled to any Per Share Adjustment Consideration who has provided wire instructions to Parent prior to the date Effective Time shall be entitled to payments of actual payment at a variable rate equal to the prime rate Per Share Adjustment Consideration by wire transfer from the Exchange Agent on or promptly following the deposit with the Exchange Agent of the amounts set forth in subsection (as reported i) of this Section 2.9(e) in accordance with the Wall Street Journal “Money Rates”) from and including the Closing Date to, but not including, the date instructions specified in such Person’s Letter of payment (the “Adjustment Interest”)Transmittal.

Closing Statement; Adjustment to Net Purchase Price. (a) Within 90 45 days after the Closing Date, the Parent Buyer shall cause the Company to prepare be prepared and shall deliver to the Stockholder Representative Seller a statement approved by the Parent (the “"Closing Statement”"), which shall include (i) a consolidated combined balance sheet (the “"Closing Date Balance Sheet”") of the Company Companies and its their Subsidiaries as of the Closing Date prepared in accordance with GAAP Consistently Applied, Applied and (ii) a statement based on such Closing Date Balance Sheet setting forth in reasonable detail a calculation of the Working Capital as of immediately prior to the close of business on the Closing Date (“"Closing Date Working Capital”"), and (iii) Debt as of immediately prior to the Closing (the “Closing Date Debt”). Prior to delivery of the Closing Statement, the Company shall afford to the Stockholder Representative and its representatives the ability to observe the preparation of the Closing Statement and shall make its senior financial officers reasonably available to answer any questions regarding such calculations and the Company’s preparation of the Closing Statement. Notwithstanding the foregoing and notwithstanding the calculation of Estimated Closing Debt or anything else to the contrary set forth in this Agreement, (x) the aggregate amount to be included in the computation of Closing Date Debt with respect to the nine (9) items set forth under the heading “Company Expenses / Payments Triggered by the Merger” in the Estimated Debt calculation delivered by the Company to the Parent on December 19, 2003 (the “Estimated Merger Expenses”) shall not be less than $9,750,000 and (y) in the event that, after the Closing but on or prior to January 30, 2004, the Company has received the Tug Sale Proceeds, Closing Date Debt shall be reduced by the Second Advance Amount; provided that notwithstanding the foregoing, in no event shall Closing Date Debt be reduced pursuant to clause (y) of this sentence to the extent any such payments to Atlantic Marine, Inc. already reduced Estimated Closing Debt. (b) Each of the Company, the Stockholder Representative Seller and Parent Buyer agrees that it will, and it will use reasonable efforts to cause its respective agents and representatives to, cooperate and assist in the preparation of the Closing Statement and the calculation of the Closing Date Working Capital and the Closing Date Debt and in the conduct of the reviews and dispute resolution process referred to in this Section 2.102.8. Prior to the delivery of the Closing Statement, Buyer shall afford Seller and its representatives the ability to observe the preparation of the Closing Statement and shall make Buyer's financial officers reasonably available to answer any questions regarding such calculations and preparation of the Closing Statement. (c) During the 2030-day period following the Stockholder Representative’s Seller's receipt of the Closing Statement, the Stockholder Representative Seller and its independent accountants shall at Stockholder Representative’s Seller's expense be permitted to review, and the Parent Buyer shall make available to the Stockholder RepresentativeSeller, the supporting schedules, analyses, working papers and other documentation of the Parent Buyer relating to the Closing Statement and to ask questions, receive answers and request such other data and information from each of them as shall be reasonable under the circumstances. The Closing Statement shall become final and binding upon the parties on the Business Day following the 20th 30th day following delivery thereof (and the Working Capital amounts reflected therein shall be deemed to be the Closing Date Working Capital and the Debt amounts reflected therein shall be deemed to be the Closing Date Debt)Capital, unless the Stockholder Representative Seller gives written notice of its disagreement with the Closing Statement (“"Notice of Disagreement”") to the Parent Buyer prior to such date; provided that the only bases on which the Stockholder Representative shall be permitted to submit a Notice of Disagreement is (i) that Closing Date Working Capital and/or Closing Date Debt were not prepared in accordance with GAAP Consistently Applied, (ii) that the calculation includes computational errors and (iii) that Closing Date Working Capital and/or Closing Date Debt has not been calculated in accordance with the principles set forth in this Section 2.10). Any Notice of Disagreement shall specify in reasonable detail the nature of any disagreement so asserted, asserted and the Stockholder Representative only include disagreements based upon Closing Date Working Capital not being calculated in accordance with this Section 2.8. Seller shall make available all supporting schedules, analyses, working papers and other documentationdocumentation with respect to the disputed items in the Notice of Disagreement. The Stockholder Representative Seller shall be deemed to have agreed with all items and amounts included in the calculation of Closing Date Working Capital and Closing Date Debt delivered pursuant to Section 2.10(a2.8(a) except such items that are specifically disputed in the Notice of Disagreement. During the 15-day period following the delivery of a Notice of Disagreement that complies with the preceding paragraph or such longer period as the Stockholder Representative Seller and Parent Buyer shall mutually agree, the Stockholder Representative Seller and Parent Buyer shall seek in good faith to resolve in writing any differences that they may have with respect to the matters specified in the Notice of Disagreement, and in the event the Stockholder Representative Seller and Parent Buyer are able to reach such resolution then the amount so agreed by them in writing shall be deemed to be the Closing Date Working Capital and/or the Closing Date Debt, as the case may beCapital. If, at the end of such 15-day period (or such longer period as mutually agreed between the Stockholder Representative Seller and ParentBuyer), the Stockholder Representative Seller and Parent Buyer have not so resolved such differences, the Stockholder Representative Seller and Parent Buyer shall submit the dispute for resolution to an independent accounting firm (the “"Arbiter”") for review and resolution of any and all matters which remain in dispute and which were properly included in the Notice of Disagreement in accordance with this Section 2.102.8. The Arbiter shall be a mutually acceptable internationally recognized independent public accounting firm of national repute agreed upon by the Stockholder Representative Seller and Parent Buyer in writing; provided, that in the event the parties are not able to mutually agree on an accounting firm, the Arbiter shall be Pricewaterhouse Coopers KPMG LLP. The Stockholder Representative Seller and Parent Buyer shall use reasonable efforts to cause the Arbiter to render a decision resolving the matters in dispute within 30 days following the submission of such matters to the Arbiter, or such longer period as the Stockholder Representative Seller and Parent Buyer shall mutually agree. The Stockholder Representative Seller and Parent Buyer agree that the determination of the Arbiter shall be final and binding upon the parties and that judgment may be entered upon the determination of the Arbiter in any court having jurisdiction over the party against which such determination is to be enforced; provided, that the scope of the disputes to be resolved by the Arbiter is limited to only such items included in the Closing Statement that the Stockholder Representative Seller has disputed in the Notice of DisagreementDisagreement based upon Closing Date Working Capital not being calculated in accordance with this Section 2.8. The Arbiter shall determine, based solely on presentations by Parent Buyer and the Stockholder Representative Seller and their respective representatives, and not by independent review, only those issues in dispute specifically set forth on the Notice of Disagreement and shall prepare the Final Closing Statement and render a written report as to the dispute and the resulting calculation of Closing Date Working Capital and/or Closing Date Debt, as appropriateCapital, which shall be conclusive and binding upon the parties. In resolving any disputed item, the Arbiter: (i) shall be bound by the principles set forth in Section 2.10 2.8 hereof, (ii) shall limit its review to matters specifically set forth in the Notice of Disagreement Disagreement, (iii) shall further limit its review to whether Closing Date Working Capital on the Closing Statement was calculated in accordance with this Section 2.8, and (iiiiv) shall not assign a value to any item greater than the greatest value for such item claimed by either party or less than the smallest value for such item claimed by either party. The fees, costs, and expenses of the Arbiter (x) shall be borne by the holders of Company Common Stock as of immediately prior to consummation of the Merger Seller in the proportion that the aggregate dollar amount of such disputed items so submitted that are unsuccessfully disputed by the Stockholder Representative Seller (as finally determined by the Arbiter) bears to the aggregate dollar amount of such items so submitted and (y) shall be borne by Parent Buyer in the proportion that the aggregate dollar amount of such disputed items so submitted that are successfully unsuccessfully disputed by the Stockholder Representative Buyer (as finally determined by the Arbiter) bears to the aggregate dollar amount of such items so submitted. Whether any dispute is resolved by agreement among the parties or by the Arbiter, changes to the Closing Statement shall be made hereunder only for items as to which Parent Seller has taken exception in the Notice of Disagreement. The fees and expenses of Parent Buyer incurred in connection with the preparation of the Closing Statement and review of any Notice of Disagreement shall be borne by ParentBuyer, and the fees and expenses of the Stockholder Representative’s independent accountants Seller incurred in connection with their review of the Closing Statement shall be borne by the holders of Company Common StockSeller. (d) Upon determination of the Final Working Capital and Final DebtCapital, the Common Stock Merger Cash Consideration component of the Purchase Consideration shall be further adjusted as follows: (i) The Common Stock Merger Consideration shall be increased dollar-for-dollar by In the amount by which the event Final Working Capital exceeds the Estimated Working Capital;, the aggregate Cash Consideration shall be increased dollar for dollar by the amount of such difference. (ii) The Common Stock Merger In the event the Final Working Capital is less than the Estimated Working Capital, the aggregate Cash Consideration shall be reduced dollar-for-decreased dollar for dollar by the amount by which the Estimated Working Capital exceeds the Final Working Capital; (iii) The Common Stock Merger Consideration shall be increased dollar-for-dollar by the amount by which the Estimated Debt exceeds the Final Debt; and (iv) The Common Stock Merger Consideration shall be reduced dollar-for-dollar by the amount by which the Final Debt exceeds the Estimated Debtof such difference. (e) The cumulative net adjustment to the Common Stock Merger Cash Consideration component of the Purchase Consideration pursuant to (i) through (iv) of Section 2.10(d2.8(d) above, whether positive or negative, is the “"Final Adjustment Amount.” " Within 10 business days after the Closing Statement becomes final and binding upon the parties (i) if the net effect pursuant to this Section 2.10 2.8 is an increase in the Common Stock Merger Cash Consideration component of the Purchase Consideration, Parent Buyer shall make a cash payment to Seller to an account designated in writing by Seller, by wire transfer of immediately available funds, of the holders of Company Common Stock, in an amount equal to such holder’s Pro Rata Share of such increase Final Adjustment Amount and (ii) if the net effect pursuant hereto is a decrease in the Merger Cash Consideration component of the Purchase Consideration, each holder of Company Common Stock, by virtue of payments from the Escrow Fund in accordance with the procedures set forth in Section 8.3(e)(ii), in accordance with such holder’s Pro Rata Share of such decrease, Seller shall make a cash payment to the Surviving Corporation Buyer to an account designated in writing by the Surviving CorporationBuyer, by wire transfer in of immediately available funds funds, of the amount of such Final Adjustment Amount, in either case under clause (i) or (ii) of this Section 2.10(e2.8(e), together with interest thereon from the Closing Date to the date of actual payment at a variable rate equal to the prime rate (as reported in the Wall Street Journal “"Money Rates”") from and including the Closing Date to, but not including, the date of payment (the “Adjustment Interest”)payment.