Common use of Closing Statement; Working Capital Adjustment Clause in Contracts

Closing Statement; Working Capital Adjustment. (a) The Sellers shall deliver to FTI and the Buyers at least three, but no more than seven, Business Days, prior to the Closing Date combined unaudited statements of assets and liabilities setting forth their good faith estimate of the combined assets and liabilities of the Sellers as of the Closing Date (the “Closing Statement”). The Closing Statement shall be prepared in accordance with GAAP, determined on the same basis as the Most Recent Financial Statements, and shall present fairly the combined financial condition of the Sellers at the date presented. (b) FTI, the Buyers and the Sellers have agreed that the Sellers’ combined Working Capital as of the Closing Date shall be $450,000 (the “Required Working Capital Amount”). If the amount of such Working Capital as shown on the Closing Statement is more or less than the Required Working Capital Amount, the Cash Payment shall be increased or decreased, as the case may be, by the amount by which such Working Capital is more or less than the Required Working Capital Amount. (c) Within 30 days after Closing, the Sellers shall prepare and deliver to FTI and the Buyers an actual unaudited statement of Acquired Assets and Assumed Liabilities (the “Closing Asset Purchase Agreement 14 Working Capital Statement”), prepared as of the Closing Date on the same basis as the Closing Statement. FTI and the Buyers shall have 14 days thereafter to dispute the Closing Working Capital Statement by FTI or a Buyer providing written notice to the Sellers’ Representative, which shall indicate in reasonable detail the basis for FTI’s and the Buyers’ belief that the Closing Working Capital Statement is incorrect. FTI, the Buyers and the Sellers’ Representative shall attempt in good faith to resolve any disputes regarding the Closing Working Capital Statement, and any disputes not resolved by the parties within 14 days after FTI’s or a Buyer’s notice shall be submitted to the Accountants for resolution. The parties shall instruct the Accountants promptly to review the Closing Working Capital Statement and to determine solely with respect to the disputed items and amounts so submitted whether and to what extent, if any, the Closing Working Capital Statement requires adjustment. The Accountants shall base their determination solely on written submissions by FTI, the Buyers and the Sellers’ Representative and not on an independent review. FTI, the Buyers and the Sellers’ Representative shall make available to the Accountants all relevant books and records and other items reasonably requested by the Accountants. As promptly as practicable but in no event later than 30 days after their retention, the Accountants shall deliver to FTI, the Buyers and the Sellers’ Representative a report which sets forth their resolution of the disputed items and amounts and their calculation of the Closing Working Capital Statement and Working Capital as of the Closing Date. The decision of the Accountants shall be final, conclusive and binding on all parties. The costs and expenses of the Accountants shall be allocated between FTI and the Buyers, on the one hand, and the Sellers and Principals, 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. (d) For purposes of this Section 2.5, the Sellers’ combined “Working Capital” is the difference, positive or negative, between the Acquired Assets that are current assets and the Assumed Liabilities that are current liabilities.

Closing Statement; Working Capital Adjustment. (a) The Sellers As promptly as practicable after the Closing Date and in no event later than 75 days after the Closing Date, Buyer shall deliver to FTI and the Buyers at least three, but no more than seven, Business Days, prior to the Closing Date combined unaudited statements of assets and liabilities setting forth their good faith estimate Seller Party Representative a closing statement of the combined assets and liabilities of the Sellers Working Capital as of the Closing Date (the “Closing Statement”), together with reasonable supporting detail of the calculation thereof. Buyer shall provide Seller Party Representative with such additional information reasonably related to the determination of the amount of the Closing Working Capital as the Seller Party Representative may reasonably request. The Closing Statement Working Capital shall be prepared determined in accordance with GAAP, determined GAAP on a basis consistent with the same basis as the Most Recent Audited Financial Statements. If the Closing Working Capital is greater than the Target Working Capital, and Buyer shall present fairly deliver such amount of excess in immediately available funds to the combined financial condition Designated Account within 30 days of a final determination of such amount in accordance with this Section 2.09. If the Sellers at Closing Working Capital is less than the date presentedTarget Working Capital, the Seller Party Representative shall deliver such amount of short fall in immediately available funds to Buyer’s account as designated by Buyer within 30 days of a final determination of such amount in accordance with this Section 2.09. (b) FTI, If Seller Entities disagree with the Buyers and the Sellers have agreed that the Sellers’ combined Working Capital as calculation of the Closing Date shall be $450,000 Working Capital, Seller Party Representative may, within 30 days after delivery of the Closing Statement, deliver a notice to the Buyer disagreeing with such calculation and setting forth Seller Party Representative’s calculation of such amounts (the “Required Working Capital AmountClosing Statement Objection Notice”). If the amount of such Working Capital The Closing Statement Objection Notice shall specify in reasonable detail those items or amounts as shown on to which Seller Entities disagree, and Seller Entities shall be deemed to have agreed with all other items and amounts contained in the Closing Statement is more or less than the Required Working Capital Amount, the Cash Payment shall be increased or decreased, as the case may be, by the amount by which such Working Capital is more or less than the Required Working Capital AmountStatement. (c) Within If Seller Party Representative shall have delivered the Closing Statement Objection Notice within the 30 days after Closingday period referred to in Section 2.09(b) above, then Seller Party Representative and Buyer shall, during the Sellers 30 day period following such delivery, use their good faith efforts to reach agreement on the disputed items or amounts, which amount shall prepare not be more than the amount thereof shown in the calculation delivered pursuant to Section 2.09(b) nor less than the amount thereof shown in the calculation delivered pursuant to Section 2.09(a). If Buyer and deliver Seller Party Representative are unable to FTI and the Buyers an actual unaudited statement of Acquired Assets and Assumed Liabilities reach agreement during such period, they shall promptly thereafter cause a mutually acceptable independent public accounting firm (the “Closing Asset Purchase Accounting Referee”) to review this Agreement 14 Working Capital Statement”), prepared as and the disputed items or amounts for the purpose of calculating the Closing Date on Working Capital. The Parties shall provide the same basis as Accounting Referee with such information reasonably related to the Closing Statement. FTI and the Buyers shall have 14 days thereafter to dispute determination of the Closing Working Capital as is necessary to allow the Accounting Referee to make a determination. In making such calculation, the Accounting Referee shall consider only those items or amounts in the Closing Statement by FTI or a Buyer providing written notice as to the Sellers’ Representative, which shall indicate Seller Entities have disagreed and which are specifically stated in reasonable detail the basis for FTI’s and the Buyers’ belief that in the Closing Working Capital Statement is incorrect. FTI, the Buyers and the Sellers’ Representative shall attempt in good faith to resolve any disputes regarding the Closing Working Capital Statement, and any disputes not resolved by the parties within 14 days after FTI’s or a Buyer’s notice shall be submitted to the Accountants for resolutionObjection Notice. The parties Accounting Referee shall instruct the Accountants promptly deliver to review the Closing Working Capital Statement Buyer and to determine solely with respect to the disputed items and amounts so submitted whether and to what extentSeller Party Representative, if any, the Closing Working Capital Statement requires adjustment. The Accountants shall base their determination solely on written submissions by FTI, the Buyers and the Sellers’ Representative and not on an independent review. FTI, the Buyers and the Sellers’ Representative shall make available to the Accountants all relevant books and records and other items reasonably requested by the Accountants. As as promptly as practicable (but in any case no event later than 30 days after their retention, from the Accountants shall deliver to FTI, the Buyers and the Sellers’ Representative a report which sets forth their resolution date of engagement of the disputed Accounting Referee), a written report setting forth its calculation of the items or amounts in dispute. Such report shall be final and amounts binding upon the Parties, absent manifest error or willful misconduct. The cost of such review and their report shall be borne (x) by Buyer, if Seller Entities’ calculation of the Closing Working Capital Statement and Working Capital as of the Closing Date. The decision of the Accountants shall be final, conclusive and binding on all parties. The costs and expenses of the Accountants shall be allocated between FTI and the Buyers, on the one hand, and the Sellers and Principals, on the other hand, based upon the percentage which the portion of the contested amount not awarded to each party bears is closer to the amount actually contested Accounting Referee’s determination than Buyer’s calculation thereof, (y) by such partySeller Parties, if the reverse is true and (z) except as provided in (x) or (y) above, equally by Buyer and Seller Parties. (d) For purposes To the extent that Buyer reserves any amount for doubtful accounts in connection with the determination of this Section 2.5the Closing Working Capital and any such doubtful account is collected thereafter within 180 days of the Closing Date, Buyer shall notify Seller Party Representative of the receipt of such funds and, within 30 days of receipt thereof, deliver by wire transfer in immediately available funds to the Designated Account, the Sellers’ combined “Working Capital” is amount of such collected doubtful account. All accounts, notes receivable and other receivables of Seller Entities at the difference, positive or negative, between Balance Sheet Date have been included in the Acquired Assets that are current assets and the Assumed Liabilities that are current liabilitiesBalance Sheet.

Closing Statement; Working Capital Adjustment. (a) The Sellers shall deliver to FTI and the Buyers at least three, but no more than seven, Business Days, prior to the Closing Date combined unaudited statements of assets and liabilities setting forth their good faith estimate of the combined assets and liabilities of the Sellers as of the Closing Date (the “Closing Statement”). The Closing Statement shall be prepared in accordance with GAAP, determined on the same basis as the Most Recent Financial Statements, and shall present fairly the combined financial condition of the Sellers at the date presented. (b) FTI, the Buyers and the Sellers have agreed that the Sellers’ combined Working Capital as of the Closing Date shall be $450,000 (the “Required Working Capital Amount”). If the amount of such Working Capital as shown on the Closing Statement is more or less than the Required Working Capital Amount, the Cash Payment shall be increased or decreased, as the case may be, by the amount by which such Working Capital is more or less than the Required Working Capital Amount. (c) Within 30 days after Closing, the Sellers shall prepare and deliver to FTI and the Buyers an actual unaudited statement of Acquired Assets and Assumed Liabilities (the “Closing Asset Purchase Agreement 14 Working Capital Statement”), prepared as of the Closing Date on the same basis as the Closing Statement. FTI and the Buyers shall have 14 days thereafter to dispute the Closing Working Capital Statement by FTI or a Buyer providing written notice to the Sellers’ Representative, which shall indicate in reasonable detail the basis for FTI’s and the Buyers’ belief that the Closing Working Capital Statement is incorrect. FTI, the Buyers and the Sellers’ Representative shall attempt in good faith to resolve any disputes regarding the Closing Working Capital Statement, and any disputes not resolved by the parties within 14 days after FTI’s or a Buyer’s notice shall be submitted to the Accountants for resolution. The parties shall instruct the Accountants promptly to review the Closing Working Capital Statement and to determine solely with respect to the disputed items and amounts so submitted whether and to what extent, if any, the Closing Working Capital Statement requires adjustment. The Accountants shall base their determination solely on written submissions by FTI, the Buyers and the Sellers’ Representative and not on an independent review. FTI, the Buyers and the Sellers’ Representative shall make available to the Accountants all relevant books and records and other items reasonably requested by the Accountants. As promptly as practicable but after the Closing Date and in no event later than 30 days after their retentionthe Closing Date, the Accountants Seller Parties shall deliver to FTI, the Buyers and the Sellers’ Representative Buyer a report which sets forth their resolution closing statement of the disputed items Working Capital of the Business as of the Closing Date (the "Closing Statement"), and amounts and their a certificate of an officer of each Seller Entity based on such Closing Statement, setting forth the calculation of the Closing Working Capital Statement and Working Capital of the Business as of the Closing Date. The decision Working Capital of the Accountants Business shall be finaldetermined in accordance with GAAP. If the Working Capital is greater than or equal to zero, conclusive and binding on all parties. The costs and expenses of the Accountants Buyer shall be allocated between FTI and the Buyers, on the one hand, and the Sellers and Principals, on the other hand, based upon the percentage which the portion of the contested deliver such amount not awarded to each party bears in immediately available funds to the Designated Account within 30 days of a final determination of such amount actually contested in accordance with this Section 2.09. If the Working Capital is less than zero, the Seller Party Representative shall cause the Seller Entities to deliver such amount in immediately available funds to Buyer's account as designated by Buyer within 30 days of a final determination of such partyamount in accordance with this Section 2.09. (db) For purposes If Buyer disagrees with the calculation of the Closing Statement, Buyer may, within 15 days after delivery of the Closing Statement, deliver a notice to the Seller Parties disagreeing with such calculation and setting forth Buyer's calculation of such amounts (the "Closing Statement Objection Notice"). The Closing Statement Objection Notice shall specify in reasonable detail those items or amounts as to which Buyer disagrees, and Buyer shall be deemed to have agreed with all other items and amounts contained in the Closing Statement. (c) If Buyer shall have delivered the Closing Statement Objection Notice within the 15 day period referred to in Section 2.09(b) above, then Buyer and the Seller Party Representative shall, during the 30 day period following such delivery, use their good faith efforts to reach agreement on the disputed items or amounts, which amount shall not be more than the amount thereof shown in the calculation delivered pursuant to Section 2.09(a) nor less than the amount thereof shown in the calculation delivered pursuant to Section 2.09(b). If Buyer and the Seller Party Representative are unable to reach agreement during such period, they shall promptly thereafter cause a mutually acceptable independent public accounting firm (the "Accounting Referee") to review this Section 2.5Agreement and the disputed items or amounts for the purpose of calculating the Working Capital. In making such calculation, the Sellers’ combined “Working Capital” is Accounting Referee shall consider only those items or amounts in the difference, positive or negative, between Closing Statement as to which Buyer has disagreed and which are specifically stated in reasonable detail in the Acquired Assets that are current assets Closing Statement Objection Notice. The Accounting Referee shall deliver to Buyer and the Assumed Liabilities that are current liabilitiesSeller Party Representative, as promptly as practicable (but in any case no later than 30 days from the date of engagement of the Accounting Referee), a written report setting forth its calculation of the items or amounts in dispute. Such report shall be final and binding upon the Parties, absent manifest error or willful misconduct. The cost of such review and report shall be borne (x) by Buyer, if the Seller Parties' calculation of the Working Capital is closer to the Accounting Referee's determination than Buyer's calculation thereof, (y) by the Seller Parties, if the reverse is true and (z) except as provided in (x) or (y) above, equally by Buyer and the Seller Parties.

Closing Statement; Working Capital Adjustment. (a) The Sellers Within ninety (90) days after the Closing Date, Buyer shall cause to be prepared and shall deliver to FTI and the Buyers at least three, but no more than seven, Business Days, prior to the Closing Date combined unaudited statements of assets and liabilities setting forth their good faith estimate of the combined assets and liabilities of the Sellers as of the Closing Date Company a statement (the “Closing Statement”) setting forth in reasonable detail the Working Capital as of the Effective Time (“Closing Working Capital”), customer deposits as of the Effective Time (“Closing Customer Deposits”), and calculation of an amount equal to the sum of amounts referred to in clauses (i)-(iii) of Section 1.2(a) (the “Closing Cash Consideration”), prepared in accordance with GAAP consistently applied. The Closing Statement shall be accompanied by a certificate signed by Buyer to the effect that the Closing Statement has been prepared in good faith in accordance with GAAP, determined on the same basis as the Most Recent Financial Statements, and shall present fairly the combined financial condition provisions of the Sellers at the date presentedthis Section 1.3. (b) FTIEach of the Company and Buyer agrees that it will, and it will use reasonable efforts to cause its respective affiliates, agents and representatives to, cooperate and assist in the Buyers and the Sellers have agreed that the Sellers’ combined Working Capital as preparation of the Closing Date shall be $450,000 (Statement and the “Required Working Capital Amount”). If the amount calculation of such Working Capital as shown on the Closing Statement is more or less than Working Capital, Closing Customer Deposits and the Required Working Capital Amount, Closing Cash Consideration and in the Cash Payment shall be increased or decreased, as conduct of the case may be, by the amount by which such Working Capital is more or less than the Required Working Capital Amountreviews and dispute resolution process referred to in this Section 1.3. (c) Within 30 days after ClosingDuring the 30-day period following the Company’s receipt of the Closing Statement, the Sellers Company and its independent accountants shall prepare be permitted to review the working papers of Buyer and deliver to FTI and the Buyers an actual unaudited statement of Acquired Assets and Assumed Liabilities Buyer’s independent accountant (the “Closing Asset Purchase Agreement 14 Working Capital StatementIndependent Accountant”), prepared as of the Closing Date on the same basis as ) relating to the Closing Statement; provided, that in order to review the Independent Accountant’s working papers, the Company and its independent accountants shall execute any confidentiality undertakings, releases, waivers or indemnities customarily required by the Independent Accountant in connection therewith. FTI The Closing Statement shall become final and binding upon the Buyers shall have 14 days thereafter to dispute parties on the 30th day following delivery thereof, unless the Company gives written notice of its disagreement with the Closing Working Capital Statement by FTI or a (“Notice of Disagreement”) to Buyer providing written notice prior to the Sellers’ Representativesuch date, which notice shall indicate comply with this Section 1.3. Any Notice of Disagreement shall (i) specify in reasonable detail the basis for FTInature of any disagreement so asserted, and include all supporting schedules, analyses, working papers and other documentation, and (ii) include the Company’s and the Buyers’ belief that calculation of the Closing Working Capital Statement is incorrectCapital, Closing Customer Deposits and the Closing Cash Consideration. FTIThe Company shall be deemed to have agreed with all items and amounts included in the calculation of the Closing Working Capital, Closing Customer Deposits and the Closing Cash Consideration delivered pursuant to Section 1.3(a) except such items that are specifically disputed in the Notice of Disagreement. During the 30-day period following the delivery of a Notice of Disagreement or such longer period as the Company and Buyer shall mutually agree, the Buyers Company and the Sellers’ Representative Buyer shall attempt seek in good faith to resolve in writing any disputes regarding the Closing Working Capital Statement, and any disputes not resolved by the parties within 14 days after FTI’s or a Buyer’s notice shall be submitted to the Accountants for resolution. The parties shall instruct the Accountants promptly to review the Closing Working Capital Statement and to determine solely differences that they may have with respect to the disputed items matters specified in the Notice of Disagreement. If, at the end of such 30-day period (or such longer period as mutually agreed by the Company and amounts so submitted whether and to what extent, if anyBuyer), the Company and Buyer have not so resolved such differences, the Company and Buyer shall submit the dispute for resolution to an independent accounting or valuation firm (the “Arbiter”) for review and resolution of any and all matters which remain in dispute and which were included in the Notice of Disagreement in accordance with this Section 1.3. The Arbiter shall be a mutually acceptable nationally recognized independent public accounting or valuation firm agreed upon by the Company and Buyer in writing; provided, that in the event the parties are not able to mutually agree on an accounting or valuation firm, the Arbiter shall be the Philadelphia, Pennsylvania office of PricewaterhouseCoopers. The Company and 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 Company and Buyer shall mutually agree. The Company and 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 Company has properly disputed in the Notice of Disagreement. The Arbiter shall determine, based solely on presentations by the Buyer and the Company and their respective representatives, and not by independent review, only those issues in dispute specifically set forth on the Notice of Disagreement and shall render a written report as to the dispute and the resulting calculation of Closing Working Capital Statement requires adjustment. The Accountants shall base their determination solely on written submissions by FTICapital, the Buyers Closing Customer Deposits and the Sellers’ Representative and not on an independent review. FTI, the Buyers and the Sellers’ Representative shall make available to the Accountants all relevant books and records and other items reasonably requested by the Accountants. As promptly as practicable but in no event later than 30 days after their retention, the Accountants shall deliver to FTI, the Buyers and the Sellers’ Representative a report Closing Cash Consideration which sets forth their resolution of the disputed items and amounts and their calculation of the Closing Working Capital Statement and Working Capital as of the Closing Date. The decision of the Accountants shall be final, conclusive and binding on all upon the parties. In resolving any disputed item, the Arbiter: (i) shall be bound by the principles set forth in, and shall calculate Closing Working Capital, Closing Customer Deposits and the Closing Cash Consideration in accordance with, this Section 1.3, (ii) shall limit its review to matters specifically set forth in and properly raised 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 (i) shall be borne by the Company in the proportion that the aggregate dollar amount of such disputed items so submitted that are unsuccessfully disputed by the Company (as finally determined by the Arbiter) bears to the aggregate dollar amount of such items so submitted and (ii) shall be borne by Buyer in the proportion that the aggregate dollar amount of such disputed items so submitted that are successfully disputed by the Company (as finally determined by the Arbiter) bears to the aggregate dollar amount of such items so submitted. The fees, costs and expenses of the Accountants Buyer’s independent accountants incurred in connection with the preparation of the Closing Statement and review of any Notice of Disagreement shall be allocated between FTI and the Buyers, on the one handborne by Buyer, and the Sellers fees, costs and Principals, on the other hand, based upon the percentage which the portion expenses of the contested amount not awarded to each party bears to Company’s independent accountants incurred in connection with their review of the amount actually contested Closing Statement and preparation of any Notice of Disagreement shall be borne by such partythe Company. (d) For purposes of this Section 2.5, the Sellers’ combined “Working Capital” is the difference, positive or negative, between the Acquired Assets that are current assets and the Assumed Liabilities that are current liabilities.