Common use of Closing Working Capital Adjustment Clause in Contracts

Closing Working Capital Adjustment. (i) Within 60 days after the Closing Date, Buyer shall prepare and deliver to Sellers a statement setting forth its calculation of Closing Working Capital and the Post-Closing Adjustment, which statement shall be substantially in the form of the Estimated Working Capital Statement (the “Closing Working Capital Statement”) and will use the same accounting methods, practices, principles, policies and procedures, with consistent classifications, judgments and valuation and estimation methodologies that were used in the preparation of the Audited Financial Statements for the most recent fiscal year end and in preparation of the Estimated Working Capital Statement, subject to the modifications and limitations set forth on the Estimated Working Capital Statement. (ii) The “Post-Closing Adjustment” shall be an amount equal to the Closing Working Capital minus the Estimated Working Capital. If the Post-Closing Adjustment is a positive number, Buyer shall pay to the Sellers, to an account designated in writing by the Sellers, an amount equal to the Post-Closing Adjustment. If the Post-Closing Adjustment is a negative number, Sellers shall pay to Buyer an amount equal to the Post-Closing Adjustment, which payment shall be made first from the Adjustment Escrow Fund (and Sellers and Buyer will take all actions required under the Escrow Agreement to cause such payment to be made by the Escrow Agent to Buyer) and in the event that the available amount in the Adjustment Escrow Fund is insufficient to pay the full amount of the Post-Closing Adjustment to Buyer, Sellers will pay the amount of such deficiency to an account designated in writing by Buyer. Following payment of the Post-Closing Adjustment in accordance with this Section 2.06(a)(ii), the amount, if any, remaining in the Adjustment Escrow Fund shall be paid to Sellers (and Sellers and Buyer will take all actions required under the Escrow Agreement to cause such payment to be made).

Closing Working Capital Adjustment. (ia) Within 60 days At least five Business Days prior to the Closing Date, Seller shall deliver to Buyer its good faith written estimate of the Closing Working Capital (with any adjustment thereto proposed by Buyer and agreed to by Seller prior to the Closing Date (the "Estimated Closing Working Capital")). Seller shall make available to Buyer all workpapers and other books and records utilized in preparing the Estimated Closing Working Capital and shall make available to Buyer the appropriate personnel involved in the preparation of such estimate. If the Estimated Closing Working Capital is greater than the Working Capital Upper Limit, the Base Purchase Price shall be increased by the amount of such excess. If the Estimated Closing Working Capital is less than the Working Capital Lower Limit, the Base Purchase Price shall be decreased by the amount of such deficiency. In all other cases, there shall be no adjustment of the Base Purchase Price at the Closing. (b) As promptly as practicable, but in no event later than 90 days, after the Closing Date, Buyer Seller shall prepare and cause its independent auditors, KPMG Peat Marwick LLP ("Seller's Accountant"), to deliver to Sellers a statement setting forth Buyer and Seller in writing its calculation of Closing Working Capital and the Post-Closing Adjustment, which statement shall be substantially in the form of the Estimated Working Capital Statement (the “"Final Closing Working Capital"), together with a written report and certificate of Seller's Accountant to the effect that the Final Closing Working Capital Statement”) has been prepared in compliance with the requirements of this Section 2.3 and will use the same accounting methodsother applicable provisions of this Agreement (the "Closing Accountant's Report"). During the 90-day period following the Closing, practices, principles, policies Seller and procedures, with consistent classifications, judgments Buyer shall make available to Seller's Accountant during normal business hours the appropriate personnel and valuation the books and estimation methodologies that were used records of Seller and Buyer to assist in the preparation of the Audited Financial Statements for Closing Accountant's Report. Seller's Accountant will provide Seller and Buyer and Buyer's firm of independent certified public accountants with copies of drafts of the most recent fiscal year end Closing Accountant's Report and access to Seller's Accountant and their working papers related thereto at least 10 Business Days prior to issuance of such report and will consider any comments and questions raised by Seller or Buyer prior to rendering the Closing Accountant's Report. In no event shall Seller's Accountant provide drafts of the Closing Accountant's Report or provide information with respect thereto to one party unless substantially contemporaneous therewith such drafts or information are provided to the other party. Seller's Accountant's calculation of the Final Closing Working Capital as set forth in the Closing Accountant's Report shall be final and binding upon the parties hereto absent manifest error (it being understood that manifest error means error that is solely evident on the face of the Closing Accountant's Report or in tying the related working papers and the books and records of Buyer and Seller with respect to the Business to the Closing Accountant's Report). The fees and expenses of Seller's Accountant in connection with the preparation of the Estimated Working Capital Statement, subject to Closing Accountant's Report shall be split equally by the modifications and limitations set forth on the Estimated Working Capital Statementparties hereto. (iic) The “Post-Closing Adjustment” shall be an amount equal to the Closing Working Capital minus the Estimated Working Capital. If the Post-Closing Adjustment Final Purchase Price is a positive numbergreater than the Initial Cash Payment, Buyer shall pay to Seller the Sellersamount of such excess, to an account designated in writing by or if the SellersInitial Cash Payment is greater than the Final Purchase Price, an amount equal to the Post-Closing Adjustment. If the Post-Closing Adjustment is a negative number, Sellers Seller shall pay to Buyer an the amount equal to of such excess, plus in either case interest on such excess for the Post-Closing Adjustment, which payment shall be made first period from the Adjustment Escrow Fund Closing Date through (and Sellers and Buyer will take all actions required under but excluding) the Escrow Agreement to cause date of such payment at the Prime Rate. (d) The payment to be made pursuant to Section 2.3(c) shall be made by the Escrow Agent wire transfer of immediately available funds to Buyer) and in the event that the available amount in the Adjustment Escrow Fund is insufficient to pay the full amount of the Post-Closing Adjustment to Buyer, Sellers will pay the amount of such deficiency to an a bank account designated in writing by Seller or Buyer. Following payment of the Post-Closing Adjustment in accordance with this Section 2.06(a)(ii), the amount, if any, remaining in the Adjustment Escrow Fund shall be paid to Sellers (and Sellers and Buyer will take all actions required under the Escrow Agreement to cause such payment to be made).,

Closing Working Capital Adjustment. (ia) Within 60 Upon the Effective Date, the amount of Cash Consideration to be distributed shall be estimated and subject to adjustment based on a final determination of Closing Working Capital made in accordance with this Section 1.7. (b) Not later than two (2) days after prior to the Closing Date, Buyer Kxxxxxx and the Stockholder shall prepare and deliver to Sellers ELC the certificate of Kapadia’s chief financial officer (the “Estimated Closing Working Capital Certificate”) certifying the estimated Closing Working Capital based on the financial books and records of Kxxxxxx through the most recent date for which such books and records are then current and any other relevant information or considerations, including any borrowings intended to be made by Kxxxxxx prior to Closing. The Estimated Closing Working Capital Certificate shall be accompanied by all relevant supplemental financial and other information. ELC shall review the Estimated Closing Working Capital Certificate and related information and shall promptly notify Kxxxxxx and the Stockholder if ELC disagrees with the estimated Closing Working Capital as stated therein. If there is disagreement, ELC and the Stockholder shall attempt to resolve such matter and agree upon the estimated Closing Working Capital amount for purposes of clause (a) of this Section 1.7. In the event that they are unable to agree, then, for purposes of clause (a) of this Section 1.7, the amount to be distributed at Closing shall be equal to the amount certified in the Estimated Closing Working Capital Certificate (as the same may be revised based upon efforts of the Stockholder and ELC to reach an agreement hereunder) minus one-half of the reduction thereto which ELC has proposed. (c) As promptly as practicable following the Effective Date, ELC and the Stockholder shall determine actual Closing Working Capital. If ELC and Stockholder are unable to reach agreement within forty (40) days following the Closing Date, then that portion of the determination which is the subject of disagreement shall be submitted to ELC’s accountants (which are BDO Sxxxxxx) and an accounting firm named by Stockholder (the “Stockholder’s Accountants”) for consideration. If BDO Sxxxxxx and the Stockholder’s Accountants are able to reach agreement within fifteen (15) days thereafter, then their decision shall be final. If they are not able to reach agreement as to the disputed issues within fifteen (15) days, then they shall jointly select a statement setting forth its calculation third accounting firm, independent of each of ELC and Kxxxxxx and the Stockholder, which shall decide the disputed issue as soon thereafter as practicable and whose decision shall be final for purposes of determining the Closing Working Capital and the Post-Cash Consideration. (d) In the event that actual Closing AdjustmentWorking Capital, determined in accordance with the foregoing, is greater than the estimated amount which statement was used for purposes of Closing, ELC shall be substantially promptly distribute the additional amount in cash to the form of Stockholder. In the Estimated Working Capital Statement (the “event that actual Closing Working Capital Statement”) and will use is less than the same accounting methodsestimated amount which was used for purposes of Closing, practices, principles, policies and procedures, with consistent classifications, judgments and valuation and estimation methodologies that were used in then the preparation of Stockholder shall promptly remit to ELC the Audited Financial Statements for the most recent fiscal year end and in preparation of the Estimated Working Capital Statement, subject to the modifications and limitations set forth on the Estimated Working Capital Statement. (ii) The “Post-Closing Adjustment” shall be an amount equal to the Closing Working Capital minus the Estimated Working Capital. If the Post-Closing Adjustment is a positive number, Buyer shall pay to the Sellers, to an account designated in writing by the Sellers, an amount equal to the Post-Closing Adjustment. If the Post-Closing Adjustment is a negative number, Sellers shall pay to Buyer an amount equal to the Post-Closing Adjustment, which payment shall be made first from the Adjustment Escrow Fund (and Sellers and Buyer will take all actions required under the Escrow Agreement to cause such payment to be made by the Escrow Agent to Buyer) and in the event that the available amount in the Adjustment Escrow Fund is insufficient to pay the full amount of the Post-Closing Adjustment to Buyer, Sellers will pay the amount of such deficiency to an account designated in writing by Buyer. Following payment of the Post-Closing Adjustment in accordance with this Section 2.06(a)(ii), the amount, if any, remaining in the Adjustment Escrow Fund shall be paid to Sellers (and Sellers and Buyer will take all actions required under the Escrow Agreement to cause such payment to be made)overpayment.

Closing Working Capital Adjustment. (ia) Within 60 days after As soon as practicable, but in no event more than 45 days, following the Closing, the Buyer shall prepare, or cause to be prepared, the Closing Date, Buyer shall prepare and deliver to Sellers a statement setting forth its calculation of Closing Date Working Capital Statement, which shall set forth the Working Capital, including the Current Assets and the Post-Current Liabilities, of the Transferred Companies as of the Closing Adjustment(based on the definitions, which statement shall be substantially approach and related assumptions agreed to by the Parties herein and in the form of the Estimated example provided in Schedule D). In preparing the Closing Date Working Capital Statement, the Buyer shall utilize the Tax Payable and Tax Receivable calculations prepared by PWC and delivered to Buyer within such 45-day period. Upon completion of the Closing Date Working Capital Statement, the Buyer shall deliver the Closing Date Working Capital Statement to PWC, with a copy to the Sellers’ Representative, and the Buyer and the Sellers’ Representative shall cause PWC to audit the Closing Date Working Capital Statement (based on the “definitions, approach and related assumptions agreed to by the Parties herein and in the form of the example provided in Schedule D) and to deliver the Closing Date Working Capital Statement, with such adjustments, if any, as its deems necessary, together with its audit report thereon, to the Buyer and the Sellers’ Representative no later than 45 days after the delivery of the Closing Date Working Capital Statement to PWC. (b) The Sellers and the Buyer shall complete their review of the Closing Date Working Capital Statement and the calculation of the Closing Date Working Capital within 30 days after delivery thereof to the Sellers’ Representative and the Buyer by PWC (the “Review Period”). If either the Sellers or the Buyer in good faith disputes all or any part of the Closing Date Working Capital Statement, the Sellers’ Representative or the Buyer, as the case may be, shall, on or before the last day of the Review Period, so inform the Buyer (in the case of the Sellers) or the Sellers’ Representative (in the case of the Buyer) in writing (the “Objection”), setting forth a description in reasonable detail of the basis of their or its determination and proposed adjustments to the Closing Date Working Capital Statement and the corresponding adjustments to the Closing Date Working Capital that the Sellers or the Buyer, as the case may be, believe should be made. If no Objection is received by the Buyer or the Sellers’ Representative on or before the last day of the Review Period, then the Closing Date Working Capital set forth on the Closing Date Working Capital Statement delivered by PWC shall be final, conclusive and binding upon the Parties. (c) If an Objection is received by the Buyer or the Sellers’ Representative on or before the last day of the Review Period, and if the Buyer and the Sellers’ Representative are unable to resolve all of their disagreements with respect to the proposed adjustments set forth in the relevant Objection(s), either Party may refer the matter to the CPA/CA Firm, which, acting as experts and not as arbitrators, shall determine, on the basis set forth herein and in accordance with the definitions, approach and related assumptions agreed to by the Buyer and the Sellers herein and in the form of the example provided in Schedule D, whether and to what extent, if any, the Closing Date Working Capital Statement and the Closing Date Working Capital require adjustment (in their entirety and not, for greater certainty, only as to the Objection, unless otherwise expressly agreed in writing by the Buyer and the Sellers’ Representative). The Buyer and the Sellers’ Representative shall instruct the CPA/CA Firm to deliver its written determination to the Buyer and the Sellers’ Representative no later than 45 days after the matter is referred to the CPA/CA Firm. The CPA/CA Firm’s determination shall be final, conclusive and binding upon the Buyer and the Sellers. The (i) fees and disbursements of the CPA/CA Firm and (ii) the fees and disbursements of PWC in auditing and adjusting, as necessary, the Closing Date Working Capital Statement delivered by Buyer pursuant to Section 2.4(a), but not, for greater certainty, any fees and disbursements of PWC in preparing any Tax Receivable or Tax Payable calculations delivered by PWC pursuant to Section 2.4(a) (the fees and disbursements referred to in clauses (i) and (ii) being referred to herein as the “Working Capital Fees”) shall be borne equally by the Buyer and will use the same accounting methodsSellers (in the latter case, practicesas a payment from amounts set aside in respect of Acquisition Related Expenses pursuant to Section 6.14; it being understood that, principlesto the extent that the Sellers’ share of the actual Working Capital Fees exceeds the amount received by XxXxxxx Xxxxxxxxx in respect of estimated Working Capital Fees, policies the Sellers shall pay, or cause to be paid, to the CPA/CA Firm or to PWC, as applicable, any such excess within five Business Days after receipt of the Buyer’s invoice therefor). The Buyer and proceduresthe Sellers shall make readily available to the CPA/CA Firm all relevant Books and Records and any work papers (including those of the Parties’ respective accountants, to the extent permitted by such accountants) relating to the Closing Date Working Capital Statement, the calculation of the Closing Date Working Capital, any Objection and all other items reasonably requested by the CPA/CA Firm in connection therewith. (d) The Sellers shall have full access to all information used by the Buyer in preparing the Closing Date Working Capital Statement, including the work papers of its accountants (to the extent permitted by such accountants). The Sellers’ Representative shall reasonably cooperate with consistent classifications, judgments and valuation and estimation methodologies that were the Buyer in obtaining all information used in the preparation of the Audited Financial Statements for Deferred Revenue, Tax Payable and Tax Receivable information. (e) The Purchase Price shall be adjusted by an amount (the most recent fiscal year end and in preparation of “Closing Adjustment Amount”) equal to the Estimated Working Capital Statementless the Closing Date Working Capital. If the Closing Adjustment Amount is a positive number, subject then the Purchase Price shall be decreased by the Closing Adjustment Amount and the Sellers shall promptly (and in any event within five Business Days) after the final determination thereof instruct the Escrow Agent to pay to the modifications Buyer the Closing Adjustment Amount, plus interest and limitations set forth other income earned on such funds pursuant to the Estimated Working Capital Statement. (ii) The “Post-terms of the Escrow Agreement from the Closing Adjustment” Date to, but not including, the date of payment, by wire transfer of immediately available funds to an account designated by the Buyer. If the Closing Adjustment Amount is a negative number, then the Purchase Price shall be increased by the Closing Adjustment Amount and the Buyer shall promptly (and in any event within five Business Days) after final determination thereof pay to the Sellers’ Representative or his nominee, for distribution to the Sellers, in full satisfaction of the Buyer’s payment obligations hereunder (except as otherwise provided in Section 6.4(e)), the Closing Adjustment Amount, plus interest in an amount equal to the Closing Working Capital minus the Estimated Working Capital. If the Post-Closing Adjustment is interest and other income that would on have been earned on a positive number, Buyer shall pay like amount of funds pursuant to the SellersEscrow Agreement at such time from the Closing Date to, but not including, the date of payment, by wire transfer of immediately available funds to an account designated in writing by the Sellers, an amount equal to the Post-Closing Adjustment’ Representative. If the Post-Closing Adjustment Amount is a negative number, Sellers shall pay to Buyer an amount equal to the Post-Closing Adjustmentzero, which then no payment shall be made first from the Adjustment Escrow Fund (and Sellers and Buyer will take all actions required under the Escrow Agreement to cause such payment to be made by either the Escrow Agent to Buyer) and in Buyer or the event that the available amount in the Adjustment Escrow Fund is insufficient to pay the full amount of the Post-Closing Adjustment to Buyer, Sellers will pay the amount of such deficiency to an account designated in writing by Buyer. Following payment of the Post-Closing Adjustment in accordance with this Section 2.06(a)(ii), the amount, if any, remaining in the Adjustment Escrow Fund shall be paid to Sellers (and Sellers and Buyer will take all actions required under the Escrow Agreement to cause such payment to be made)Sellers.