Common use of Determination of Actual Working Capital Clause in Contracts

Determination of Actual Working Capital. Within sixty (60) days after the Closing Date, Purchaser will prepare and deliver to Sellers a certificate, signed by Purchaser, certifying Purchaser’s determination of the actual Working Capital of the Company as of the Closing Date, and identifying any adjustments to the Purchase Price as a result of such amounts being greater or less than the amounts set forth on the Closing Payment Certificate. If Sellers do not object to Purchaser’s certificate within thirty (30) days after receipt, or accepts such certificate during such thirty (30) day period, the Purchase Price shall be adjusted as set forth in Purchaser’s certificate, and payment made in accordance with Section 2.5. If Sellers object to the Purchaser’s certificate, Sellers shall notify Purchaser in writing of such objection within thirty (30) days after Sellers’ receipt thereof (such notice setting forth in reasonable detail the basis for such objection). During such thirty (30) day period, Purchaser shall permit Sellers and/or any accountant engaged by Sellers at their sole discretion and cost, including by way of illustration but not limitation, the current accountants of the Company, access to such work papers, information and supporting documentation relating to the preparation of Purchaser’s certificate, as may be reasonably requested by Sellers and/or their accountants to permit Sellers and/or their accountants to review in detail the manner in which Purchaser’s certificate was prepared. Purchaser and Sellers shall thereafter negotiate in good faith to resolve any such objections. If Purchaser and Sellers are unable to resolve all of such differences within twenty (20) calendar days of Purchaser’s receipt of Sellers’ objections, the items in dispute may be referred by any party for determination as promptly as practicable to the Independent Accounting Firm, which shall be jointly engaged by Purchaser, on the one hand, and Sellers, on the other hand, pursuant to an engagement letter in customary form which each of Purchaser and Sellers shall execute; provided, however, that such engagement letter shall specifically provide that the Independent Accounting Firm owes fiduciary duties to Sellers and Purchaser. If Deloitte & Touche LLP is unable to serve as the Independent Accounting Firm, and Purchaser and Sellers have failed to reach agreement on a replacement Independent Accounting Firm within ten (10) calendar days following the termination of the twenty (20) calendar-day period referred to in the immediately preceding sentence, then Sellers and Purchaser shall cooperate in causing a replacement Independent Accounting Firm to be selected by the American Arbitration Association. At the time that the Independent Accounting Firm or any replacement Independent Accounting Firm is selected, Sellers and Purchaser shall represent and warrant to each other that the Independent Accounting Firm or replacement Independent Accounting Firm, as applicable, that has been selected, does not have a business relationship with any of the Sellers, Company or Purchaser or any Affiliate of the Sellers, Company or Purchaser. The Independent Accounting Firm shall prescribe procedures for resolving the disputed items and in all events shall make a written determination, with respect to such disputed items only, whether and to what extent, if any, the Closing Payment Certificate and the accompanying calculations of the Working Capital and/or liabilities of Company at Closing require adjustment based on the terms and conditions of this Agreement (the “Determination”). The Determination shall be based solely on presentations with respect to such disputed items by Purchaser and Sellers to the Independent Accounting Firm and not on the Independent Accounting Firm’s independent review; provided, that such presentations shall be deemed to include, without limitation, any work papers, records, accounts or similar materials delivered to the Independent Accounting Firm by Purchaser or Sellers in connection with such presentations and any materials delivered to the Independent Accounting Firm in response to requests by the Independent Accounting Firm. Each of Purchaser and Sellers shall use its Reasonable Best Efforts to make its presentation as promptly as practicable following submission to the Independent Accounting Firm of the disputed items, and each such party shall be entitled, as part of its presentation, to respond to the presentation of the other party and any question and requests of the Independent Accounting Firm. Purchaser and Sellers shall instruct the Independent Accounting Firm to deliver the Determination to Purchaser and Sellers no later than thirty (30) calendar days following the date on which the disputed items are referred to the Independent Accounting Firm. In deciding any matter, the Independent Accounting Firm (i) shall be bound by the provisions of this Section 2.3(b), (ii) may not assign a value to any item greater than the greatest value for such item claimed by either Purchaser or Sellers or less than the smallest value for such item claimed by Purchaser or Sellers, and (iii) shall be bound by the express terms, conditions and covenants set forth in this Agreement, including the definition of Working Capital contained herein. In the absence of fraud or manifest error, the Determination shall be conclusive and binding upon Purchaser and Sellers. The Independent Accounting Firm shall consider only those items and amounts in the Purchaser’s certificate which Purchaser and Sellers were unable to resolve. All fees and expenses (including reasonable attorney’s fees and expenses and fees and expenses of the Independent Accounting Firm) incurred in connection with any dispute over Purchaser’s certificate shall be borne by the parties based on the percentage which the portion of the contested amount not awarded to each party bears to the amount actually contested by such party.

Determination of Actual Working Capital. Within sixty (60) 45 days after the Closing Date, Purchaser the Buyer will prepare and deliver to Sellers the Seller a certificate, signed by PurchaserBuyer, certifying Purchaserthe Buyer’s determination of the actual Working Capital of the Company as of the Closing Date, and identifying any adjustments to the Purchase Price as a result of such amounts being greater or less than the amounts set forth on the Closing Payment Certificate. If Sellers do the Seller does not object to PurchaserBuyer’s certificate within thirty (30) 30 days after receipt, or accepts such certificate during such thirty (30) 30 day period, the Purchase Price shall be adjusted as set forth in PurchaserBuyer’s certificate, and payment made in accordance with Section 2.5. If Sellers object the Seller objects to the PurchaserBuyer’s certificate, Sellers the Seller shall notify Purchaser the Buyer in writing of such objection within thirty (30) 30 days after Sellers’ the Seller’s receipt thereof (such notice setting forth in reasonable detail the basis for such objection). During such thirty (30) 30 day period, Purchaser the Buyer shall permit Sellers and/or any accountant engaged by Sellers at their sole discretion and cost, including by way of illustration but not limitation, the current accountants of the Company, Seller access to such work papers, information and supporting documentation papers relating to the preparation of Purchaserthe Buyer’s certificate, as may be reasonably requested by Sellers and/or their accountants necessary to permit Sellers and/or their accountants the Seller to review in detail the manner in which Purchaserthe Buyer’s certificate was prepared. Purchaser The Buyer and Sellers the Seller shall thereafter negotiate in good faith to resolve any such objections. If Purchaser the Buyer and Sellers the Seller are unable to resolve all of such differences within twenty (20) calendar days of Purchaserthe Buyer’s receipt of Sellers’ Seller’s objections, the items in dispute may will be referred by any party for determination as promptly as practicable to the Independent Accounting Firm, which shall be jointly engaged by Purchaserthe Buyer, on the one hand, and Sellersthe Seller, on the other hand, pursuant to an engagement letter in customary form which each of Purchaser the Buyer and Sellers the Seller shall execute; provided, however, that such engagement letter shall specifically provide that the Independent Accounting Firm owes fiduciary duties to Sellers and Purchaser. If Deloitte & Touche PriceWaterhouseCoopers LLP is unable to serve as the Independent Accounting Firm, Firm and Purchaser the Buyer and Sellers the Seller have failed to reach agreement on a replacement an Independent Accounting Firm within ten (10) calendar days following the termination of the twenty (20) calendar-day period referred to in the immediately preceding sentence, then Sellers and Purchaser shall cooperate in causing a replacement the Independent Accounting Firm to shall be selected by the American Arbitration Association. At the time that the Independent Accounting Firm or any replacement Independent Accounting Firm is selected, Sellers and Purchaser shall represent and warrant to each other that the Independent Accounting Firm or replacement Independent Accounting Firm, as applicable, that has been selected, does not have a business relationship with any of the Sellers, Company or Purchaser or any Affiliate of the Sellers, Company or Purchaser. The Independent Accounting Firm shall prescribe procedures for resolving the disputed items and in all events shall make a written determination, with respect to such disputed items only, whether and to what extent, if any, the Closing Payment Certificate and the accompanying calculations of the Working Capital and/or liabilities Indebtedness of the Company at Closing require adjustment based on the terms and conditions of this Agreement (the “Determination”). The Determination shall be based solely on presentations with respect to such disputed items by Purchaser the Buyer and Sellers the Seller to the Independent Accounting Firm and not on the Independent Accounting Firm’s independent review; provided, that such presentations shall be deemed to include, without limitation, any work papers, records, accounts or similar materials delivered to the Independent Accounting Firm by Purchaser the Buyer or Sellers the Seller in connection with such presentations and any materials delivered to the Independent Accounting Firm in response to requests by the Independent Accounting Firm. Each of Purchaser the Buyer and Sellers the Seller shall use its Reasonable Best Efforts reasonable best efforts to make its presentation as promptly as practicable following submission to the Independent Accounting Firm of the disputed items, and each such party shall be entitled, as part of its presentation, to respond to the presentation of the other party and any question and requests of the Independent Accounting Firm. Purchaser The Buyer and Sellers the Seller shall instruct the Independent Accounting Firm to deliver the Determination to Purchaser the Buyer and Sellers the Seller no later than thirty (30) calendar days following the date on which the disputed items are referred to the Independent Accounting Firm. In deciding any matter, the Independent Accounting Firm (i) shall be bound by the provisions of this Section 2.3(b)2.4.2, (ii) may not assign a value to any item greater than the greatest value for such item claimed by either Purchaser the Buyer or Sellers the Seller or less than the smallest value for such item claimed by Purchaser the Buyer or Sellersthe Seller, and (iii) shall be bound by the express terms, conditions and covenants set forth in this Agreement, including the definition of Working Capital contained herein. In the absence of fraud or manifest error, the Determination shall be conclusive and binding upon Purchaser the Buyer and Sellersthe Seller. The Independent Accounting Firm shall consider only those items and amounts in the PurchaserBuyer’s certificate which Purchaser the Buyer and Sellers the Seller were unable to resolve. The determination of the Independent Accounting Firm shall be final, conclusive, non-appealable and binding upon the Buyer and the Seller for all purposes hereunder. All fees and expenses (including reasonable attorney’s fees and expenses and fees and expenses of the Independent Accounting Firm) incurred in connection with any dispute over Purchaserthe Buyer’s certificate shall be borne by the parties Parties based on the percentage which the portion of the contested amount not awarded to each party Party bears to the amount actually contested by such partyParty.

Determination of Actual Working Capital. Within sixty (60) 60 days after the Closing Date, Purchaser the Buyer will prepare and deliver to Sellers the Seller a certificate, signed by PurchaserBuyer, certifying Purchaserthe Buyer’s determination of the actual Working Capital of the Company as of the Closing Date, and identifying any adjustments to the Purchase Price as a result of such amounts being greater or less than the amounts set forth on the Closing Payment Certificate. If Sellers do the Seller does not object to PurchaserBuyer’s certificate within thirty (30) 30 days after receipt, or accepts such certificate during such thirty (30) 30 day period, the Purchase Price shall be adjusted as set forth in PurchaserBuyer’s certificate, and payment made in accordance with Section 2.5. If Sellers object the Seller objects to the PurchaserBuyer’s certificate, Sellers the Seller shall notify Purchaser the Buyer in writing of such objection within thirty (30) 30 days after Sellers’ the Seller’s receipt thereof (such notice setting forth in reasonable detail the basis for such objection). During such thirty (30) 30 day period, Purchaser the Buyer shall permit Sellers and/or any accountant engaged by Sellers at their sole discretion and cost, including by way of illustration but not limitation, the current accountants of the Company, Seller access to such work papers, information and supporting documentation papers relating to the preparation of Purchaserthe Buyer’s certificate, as may be reasonably requested by Sellers and/or their accountants necessary to permit Sellers and/or their accountants the Seller to review in detail the manner in which Purchaserthe Buyer’s certificate was prepared. Purchaser The Buyer and Sellers the Seller shall thereafter negotiate in good faith to resolve any such objections. If Purchaser the Buyer and Sellers the Seller are unable to resolve all of such differences within twenty (20) calendar days of Purchaserthe Buyer’s receipt of Sellers’ Seller’s objections, the items in dispute may be referred by any party Party for determination as promptly as practicable to the Independent Accounting Firm, which shall be jointly engaged by Purchaserthe Buyer, on the one hand, and Sellersthe Seller, on the other hand, pursuant to an engagement letter in customary form which each of Purchaser the Buyer and Sellers the Seller shall execute; provided, however, that such engagement letter shall specifically provide that the Independent Accounting Firm owes fiduciary duties to Sellers and Purchaser. If Deloitte & Touche LLP PricewaterhouseCoopers is unable to serve as the Independent Accounting Firm, the Buyer and Purchaser and Sellers the Seller have failed to reach agreement on a replacement an Independent Accounting Firm within ten (10) calendar days following the termination of the twenty (20) calendar-day period referred to in the immediately preceding sentence, then Sellers and Purchaser shall cooperate in causing a replacement the Independent Accounting Firm to shall be selected by the American Arbitration Association. At the time that the Independent Accounting Firm or any replacement Independent Accounting Firm is selected, Sellers and Purchaser shall represent and warrant to each other that the Independent Accounting Firm or replacement Independent Accounting Firm, as applicable, that has been selected, does not have a business relationship with any of the Sellers, Company or Purchaser or any Affiliate of the Sellers, Company or Purchaser. The Independent Accounting Firm shall prescribe procedures for resolving the disputed items and in all events shall make a written determination, with respect to such disputed items only, whether and to what extent, if any, the Closing Payment Certificate and the accompanying calculations of the Working Capital and/or liabilities Indebtedness of Company at Closing require adjustment based on the terms and conditions of this Agreement (the “Determination”). The Determination shall be based solely on presentations with respect to such disputed items by Purchaser the Buyer and Sellers the Seller to the Independent Accounting Firm and not on the Independent Accounting Firm’s independent review; provided, that such presentations shall be deemed to include, without limitation, any work papers, records, accounts or similar materials delivered to the Independent Accounting Firm by Purchaser the Buyer or Sellers the Seller in connection with such presentations and any materials delivered to the Independent Accounting Firm in response to requests by the Independent Accounting Firm. Each of Purchaser the Buyer and Sellers the Seller shall use its Reasonable Best Efforts reasonable best efforts to make its presentation as promptly as practicable following submission to the Independent Accounting Firm of the disputed items, and each such party shall be entitled, as part of its presentation, to respond to the presentation of the other party and any question and requests of the Independent Accounting Firm. Purchaser The Buyer and Sellers the Seller shall instruct the Independent Accounting Firm to deliver the Determination to Purchaser the Buyer and Sellers the Seller no later than thirty (30) calendar days following the date on which the disputed items are referred to the Independent Accounting Firm. In deciding any matter, the Independent Accounting Firm (i) shall be bound by the provisions of this Section 2.3(b)2.4.2, (ii) may not assign a value to any item greater than the greatest value for such item claimed by either Purchaser the Buyer or Sellers the Seller or less than the smallest value for such item claimed by Purchaser the Buyer or Sellersthe Seller, and (iii) shall be bound by the express terms, conditions and covenants set forth in this Agreement, including the definition of Working Capital contained herein. In the absence of fraud or manifest error, the Determination shall be conclusive and binding upon Purchaser the Buyer and Sellersthe Seller. The Independent Accounting Firm shall consider only those items and amounts in the PurchaserBuyer’s certificate which Purchaser the Buyer and Sellers the Seller were unable to resolve. All fees and expenses (including reasonable attorney’s fees and expenses and fees and expenses of the Independent Accounting Firm) incurred in connection with any dispute over Purchaserthe Buyer’s certificate shall be borne by the parties Parties based on the percentage which the portion of the contested amount not awarded to each party Party bears to the amount actually contested by such partyParty.

Determination of Actual Working Capital. Within sixty Not later than ninety (6090) days after the Closing Date, Purchaser will Parent shall prepare and deliver to Sellers the Company Interest Representative a certificate, signed by Purchaser, certifying Purchaser’s determination of closing statement (the actual “Closing Statement”) setting forth in reasonable detail the calculation of: (i) the Working Capital of the Company as of the Closing DateEffective Time (the “Actual Working Capital”), and identifying any adjustments (ii) the amount equal to the Purchase Price as a result Actual Working Capital minus the Estimated Working Capital (the “Adjustment Amount”). Actual Working Capital will be calculated consistent with the method used in Schedule 2.3-1. Parent shall provide the Company Interest Representative with reasonable access to the work papers and personnel in connection with such calculation. Company Interest Representative shall have thirty (30) days after delivery of the Closing Statement (the “Review Period”) to notify Parent in writing (the “Dispute Notice”) that Company Interest Representative disputes the Closing Statement and the nature of such amounts being greater or less than dispute. If no such notice is given within the amounts set forth Review Period, the Adjustment Amount shall conclusively be deemed final on the Closing Payment Certificatefirst Business Day after the end of the Review Period. If Sellers do not object the Company Interest Representative sends a Dispute Notice, Parent and the Company Interest Representative shall use commercially reasonable efforts to Purchaser’s certificate reconcile such disputes and reach agreement on the Adjustment Amount. If they are unable to resolve any such difference within thirty (30) days after receiptthe end of the Review Period, Parent or accepts Company Interest Representative may submit such certificate during remaining difference(s) to the Independent Accountant for prompt determination. Parent and the Company Interest Representative shall instruct the Independent Accountant to make a final determination of such thirty (30difference(s) day period, in accordance with the Purchase Price shall be adjusted as guidelines and procedures set forth in Purchaser’s certificate, this Agreement and payment made in accordance with Section 2.5. If Sellers object to the Purchaser’s certificate, Sellers applicable definitions set forth herein and shall notify Purchaser in writing of request that such objection within determination be delivered not more than thirty (30) days after Sellers’ receipt thereof (such notice setting forth in reasonable detail the basis for such objection). During such thirty (30) day period, Purchaser shall permit Sellers and/or any accountant engaged by Sellers at their sole discretion and cost, including by way of illustration but not limitation, the current accountants of the Company, access to such work papers, information and supporting documentation relating to the preparation of Purchaser’s certificate, as may be reasonably requested by Sellers and/or their accountants to permit Sellers and/or their accountants to review in detail the manner in which Purchaser’s certificate was prepared. Purchaser and Sellers shall thereafter negotiate in good faith to resolve any such objections. If Purchaser and Sellers are unable to resolve all following submission of such differences within twenty (20) calendar days of Purchaser’s receipt of Sellers’ objections, the items in dispute may be referred by any party for determination as promptly as practicable to the Independent Accounting Firm, which shall be jointly engaged by Purchaser, on the one hand, and Sellers, on the other hand, pursuant to an engagement letter in customary form which each of Purchaser and Sellers shall execute; provided, however, that such engagement letter shall specifically provide that the Independent Accounting Firm owes fiduciary duties to Sellers and Purchaserdifferences. If Deloitte & Touche LLP is unable to serve as the Independent Accounting Firm, and Purchaser and Sellers have failed to reach agreement on a replacement Independent Accounting Firm within ten (10) calendar days following the termination of the twenty (20) calendar-day period referred to in the immediately preceding sentence, then Sellers and Purchaser shall cooperate in causing a replacement Independent Accounting Firm to be selected by the American Arbitration Association. At the time that the Independent Accounting Firm or any replacement Independent Accounting Firm is selected, Sellers and Purchaser shall represent and warrant to each other that the Independent Accounting Firm or replacement Independent Accounting Firm, as applicable, that has been selected, does not have a business relationship with any of the Sellers, Company or Purchaser or any Affiliate of the Sellers, Company or Purchaser. The Independent Accounting Firm shall prescribe procedures for resolving the disputed items and in all events shall make a written determination, with respect to such disputed items only, whether and to what extent, if any, the Closing Payment Certificate Parent and the accompanying calculations of the Working Capital and/or liabilities of Company at Closing require adjustment based on the terms and conditions of this Agreement (the “Determination”). The Determination Interest Representative shall be based solely on presentations with respect to such disputed items by Purchaser and Sellers to the Independent Accounting Firm and not on the Independent Accounting Firm’s independent review; provided, that such presentations shall be deemed to include, without limitation, execute any work papers, records, accounts or similar materials delivered to the Independent Accounting Firm by Purchaser or Sellers in connection with such presentations and any materials delivered to the Independent Accounting Firm in response to requests agreement required by the Independent Accounting Firm. Each of Purchaser and Sellers shall use its Reasonable Best Efforts Accountant to make its presentation as promptly as practicable following submission to engage the Independent Accounting Firm of Accountant to provide the disputed itemsservices hereunder, including an agreement to be jointly and each such party shall be entitled, as part of its presentation, to respond to the presentation of the other party and any question and requests severally liable for payment of the Independent Accounting FirmAccountant’s fees and expenses. Purchaser Parent and Sellers the Company Interest Representative will cooperate with the Independent Accountant during the term of its engagement. Parent and the Company Interest Representative shall instruct the Independent Accounting Firm Accountant not to deliver the Determination to Purchaser and Sellers no later than thirty (30) calendar days following the date on which the disputed items are referred to the Independent Accounting Firm. In deciding any matter, the Independent Accounting Firm (i) shall be bound by the provisions of this Section 2.3(b), (ii) may not assign a value to any item in dispute greater than the greatest value for such item claimed assigned by either Purchaser Parent, on the one hand, or Sellers the Company Interest Representative, on the other hand, or less than the smallest value for such item claimed assigned by Purchaser Parent, on the one hand, or Sellersthe Company Interest Representative, on the other hand. Parent and the Company Interest Representative shall also instruct the Independent Accountant to make its determination based solely on information presented in writing (iii“Presentations”) by Parent and the Company Interest Representative (which Presentations shall also be bound by provided to the express terms, conditions other party) that are in accordance with the guidelines and covenants procedures set forth in this AgreementAgreement (i.e., including not on the definition basis of Working Capital contained hereinan independent review). In Parent and the absence Company Interest Representative shall promptly furnish or cause to be furnished to the Independent Accountant such work papers and other documents and information relating to the disputed issues as the Independent Accountant may request and are available to that party or its accountants or other representatives, and shall provide a copy of fraud or manifest error, such information to the Determination shall be conclusive and binding upon Purchaser and Sellersother party. The Independent Accounting Firm Accountant’s determination shall consider only those items be final and amounts binding on the parties effective on the date the Independent Accountant delivers its final resolution in writing to Parent and the Purchaser’s certificate which Purchaser and Sellers were unable to resolveCompany Interest Representative. All The Independent Accountant shall equally split its fees and expenses (including reasonable attorney’s fees for such determination between the Parent and expenses and fees and expenses of the Independent Accounting Firm) incurred in connection with any dispute over Purchaser’s certificate shall be borne by the parties based on the percentage which the portion of the contested amount not awarded to each party bears to the amount actually contested by such partyCompany Interest Representative.

Determination of Actual Working Capital. (a) Within sixty (60) 60 days after the Closing Date, Purchaser will Parent shall prepare and deliver to Sellers a certificate, signed by Purchaser, certifying Purchaser’s determination computation of the actual Working Capital of the Company as of the Closing DateClosing, and identifying any adjustments deliver such computation to the Purchase Price as a result Stockholders’ Representative. If within 30 days following delivery of such amounts being greater or less than computation, the amounts set forth Stockholders’ Representative does not deliver a written objection thereto to Parent, then the Working Capital reflected in Parent’s computation shall be final, binding and conclusive on the Closing Payment Certificate. parties and shall constitute the “Actual Working Capital” for all purposes hereunder. (b) If Sellers do not object to Purchaser’s certificate within thirty (30) days after receipt, or accepts such certificate during such thirty (30) day period, the Purchase Price shall be adjusted as set forth Stockholders’ Representative objects in Purchaser’s certificate, and payment made in accordance with Section 2.5. If Sellers object writing to the Purchaser’s certificate, Sellers shall notify Purchaser in writing computation within 30 days following the delivery of such objection within thirty (30) days after Sellerscomputation, then the Stockholders’ receipt thereof (such notice setting forth in reasonable detail the basis for such objection). During such thirty (30) day period, Purchaser Representative and Parent shall permit Sellers and/or any accountant engaged by Sellers at their sole discretion and cost, including by way of illustration but not limitation, the current accountants of the Company, access to such work papers, information and supporting documentation relating to the preparation of Purchaser’s certificate, as may be reasonably requested by Sellers and/or their accountants to permit Sellers and/or their accountants to review in detail the manner in which Purchaser’s certificate was prepared. Purchaser and Sellers shall thereafter negotiate in good faith and attempt to resolve any their disagreement. Should such objections. If Purchaser and Sellers are unable to resolve all negotiations not result in an agreement within 30 days after delivery of such differences within twenty (20) calendar days of Purchaser’s receipt of Sellers’ objectionswritten objection, the items issues remaining in dispute may shall be referred by any party for determination as promptly as practicable submitted to a neutral auditor mutually agreeable to the Independent Accounting FirmStockholders’ Representative and Parent (the “Neutral Auditor”). The Stockholders’ Representative and Parent shall furnish or cause to be furnished to the Neutral Auditor such work papers and other documents and information relating to the disputed issues as they may deem necessary or appropriate or as the Neutral Auditor may request and that are available to that party or its agents. Further, which the Stockholders’ Representative and Parent shall be jointly engaged by Purchaserafforded the opportunity to present to the Neutral Auditor any material relating to the disputed issues and to discuss the issues with the Neutral Auditor, on the one hand, and Sellers, on the other hand, pursuant to an engagement letter in customary form which each of Purchaser and Sellers shall execute; provided, however, that no party shall have any discussions with the Neutral Auditor without first providing the other parties with notice of such engagement letter shall specifically provide that discussions and a reasonable opportunity to attend, observe or otherwise participate in such discussions. All fees and expenses relating to the Independent Accounting Firm owes fiduciary duties to Sellers and Purchaser. If Deloitte & Touche LLP is unable to serve as the Independent Accounting Firm, and Purchaser and Sellers have failed to reach agreement on a replacement Independent Accounting Firm within ten (10) calendar days following the termination of the twenty (20) calendar-day period referred to in the immediately preceding sentence, then Sellers and Purchaser shall cooperate in causing a replacement Independent Accounting Firm to be selected by the American Arbitration Association. At the time that the Independent Accounting Firm or any replacement Independent Accounting Firm is selected, Sellers and Purchaser shall represent and warrant to each other that the Independent Accounting Firm or replacement Independent Accounting Firm, as applicable, that has been selected, does not have a business relationship with any of the Sellers, Company or Purchaser or any Affiliate of the Sellers, Company or Purchaser. The Independent Accounting Firm shall prescribe procedures for resolving the disputed items and in all events shall make a written determination, with respect to such disputed items only, whether and to what extentwork, if any, performed by the Closing Payment Certificate Neutral Auditor will be borne equally by Parent and the accompanying calculations of the Working Capital and/or liabilities of Company at Closing require adjustment based on the terms and conditions of this Agreement (the “Determination”)Exchange Fund. The Determination Neutral Auditor will deliver to Parent and the Stockholders’ Representative a written determination (which determination shall include a worksheet setting forth all material calculations used in arriving at such determination and shall be based solely on presentations with respect to such disputed items by Purchaser and Sellers information provided to the Independent Accounting Firm Neutral Auditor by Parent and not on the Independent Accounting Firm’s independent review; provided, that such presentations shall be deemed to include, without limitation, any work papers, records, accounts Stockholders’ Representative or similar materials delivered to the Independent Accounting Firm by Purchaser or Sellers in connection with such presentations and any materials delivered to the Independent Accounting Firm in response to requests by the Independent Accounting Firm. Each of Purchaser and Sellers shall use its Reasonable Best Efforts to make its presentation as promptly as practicable following submission to the Independent Accounting Firm their respective Affiliates) of the disputed items, and each such party shall be entitledincluding the Neutral Auditor’s calculation of Working Capital, as part of its presentationthe case may be, to respond to the presentation as of the other party and any question and requests Closing, within 30 days of receipt of the Independent Accounting Firm. Purchaser disputed items, which determination will be final, binding and Sellers conclusive on the parties and shall instruct constitute the Independent Accounting Firm to deliver Actual Working Capital for all purposes hereunder. (c) If the Determination to Purchaser and Sellers no later than thirty (30) calendar days following the date on which the disputed items are referred to the Independent Accounting Firm. In deciding any matter, the Independent Accounting Firm (i) shall be bound by the provisions of this Section 2.3(b), (ii) may not assign a value to any item Actual Working Capital is greater than the greatest value Estimated Working Capital, then Parent shall deliver to the Exchange Agent, for distribution to the Eligible Holders, a cash payment equal to such item claimed by either Purchaser or Sellers or difference in proportion to each Eligible Holder’s Pro Rata Percentage, and the Stockholders’ Representative and Parent shall deliver joint written instructions to the Exchange Agent to disburse to the Eligible Holders such cash payment with respect to the Eligible Shares. If the Actual Working Capital is less than the smallest value for Estimated Working Capital, then the Stockholders’ Representative and Parent shall deliver joint written instructions to the Escrow Agent to disburse from the Escrow Funds to Parent a cash payment equal to such item claimed by Purchaser difference. Any such sum shall be due and payable within 10 days after the final determination of the Actual Working Capital pursuant to Sections 2.03(a) or Sellers2.03(b), and (iii) shall be bound by the express terms, conditions and covenants set forth paid in this Agreement, including the definition of Working Capital contained herein. In the absence of fraud or manifest error, the Determination shall be conclusive and binding upon Purchaser and Sellers. The Independent Accounting Firm shall consider only those items and amounts in the Purchaser’s certificate which Purchaser and Sellers were unable to resolve. All fees and expenses (including reasonable attorney’s fees and expenses and fees and expenses of the Independent Accounting Firm) incurred in connection with any dispute over Purchaser’s certificate shall be borne by the parties based on the percentage which the portion of the contested amount not awarded to each party bears to the amount actually contested by such partyimmediately available funds.

Determination of Actual Working Capital. Within sixty forty-five (6045) days after the Closing Date, Purchaser will prepare and deliver to Sellers Stockholder Representative a certificate, signed by Purchaser’s Chief Financial Officer, certifying Purchaser’s determination of the actual Working Capital of the Company as of the Closing Date, and identifying any adjustments to the Initial Purchase Price as a result of such amounts being greater or less than the amounts set forth on the Closing Payment Certificate. If Sellers do Stockholder Representative does not object to Purchaser’s certificate within thirty (30) days after receipt, or accepts such certificate during such thirty (30) day period, the Initial Purchase Price shall be adjusted as set forth in Purchaser’s certificate, and payment shall be made in accordance with Section 2.52.7. If Sellers object Stockholder Representative objects to the Purchaser’s certificate, Sellers Stockholder Representative shall notify Purchaser in writing of such objection within thirty (30) days after Sellers’ Stockholder Representative’s receipt thereof (such notice setting forth in reasonable detail the basis for such objection). During such thirty (30) day periodperiod and until the resolution of any dispute regarding Purchaser’s determination of Actual Working Capital, Purchaser shall permit Sellers and/or any accountant engaged by Sellers at their sole discretion and cost, including by way of illustration but not limitation, the current accountants of the Company, Stockholder Representative access to such work papers, information papers and supporting documentation books and records of the Company relating to the preparation of Purchaser’s certificate, as may be reasonably requested by Sellers and/or their accountants necessary to permit Sellers and/or their accountants Stockholder Representative to review in detail the manner in which Purchaser’s certificate was prepared. Purchaser and Sellers Stockholder Representative shall thereafter negotiate in good faith to resolve any such objections. If Purchaser and Sellers Stockholder Representative are unable to resolve all of such differences within twenty (20) calendar days of Purchaser’s receipt of Sellers’ Stockholder Representative’s objections, the items in dispute may be referred by any party for determination as promptly as practicable to the Independent Accounting Firm, which shall be jointly engaged by Purchaser, on the one hand, and SellersStockholder Representative, on the other hand, pursuant to an engagement letter in customary form which each of Purchaser and Sellers Stockholder Representative shall execute; provided, however, that such engagement letter shall specifically provide that the Independent Accounting Firm owes fiduciary duties to Sellers and Purchaser. If Deloitte McGladrey & Touche Xxxxxx LLP is unable to serve as the Independent Accounting Firm, and Purchaser and Sellers Stockholder Representative have failed to reach agreement on a replacement an Independent Accounting Firm within ten (10) calendar days following the termination of the twenty (20) calendar-day period referred to in the immediately preceding sentence, then Sellers and Purchaser shall cooperate in causing a replacement the Independent Accounting Firm to shall be selected by the American Arbitration Association. At the time that The parties shall direct the Independent Accounting Firm or any replacement Independent Accounting Firm is selected, Sellers and Purchaser shall represent and warrant to each other that the Independent Accounting Firm or replacement Independent Accounting Firm, as applicable, that has been selected, does not have a business relationship with any of the Sellers, Company or Purchaser or any Affiliate of the Sellers, Company or Purchaser. The Independent Accounting Firm shall prescribe procedures for resolving the disputed items and in all events shall to make a written determination, with respect to such disputed items only, whether and to what extent, if any, the Closing Payment Certificate and the accompanying calculations of the Working Capital and/or liabilities of Company at Closing require adjustment based on the terms and conditions of this Agreement (the “Determination”). The Determination shall be based solely on presentations with respect to such disputed items by Purchaser and Sellers Stockholder Representative to the Independent Accounting Firm and not on the Independent Accounting Firm’s independent review; provided, that such presentations shall be deemed to include, without limitation, any work papers, records, accounts or similar materials delivered to the Independent Accounting Firm by Purchaser or Sellers Stockholder Representative in connection with such presentations and any materials delivered to the Independent Accounting Firm in response to requests by the Independent Accounting Firm. Each of Purchaser and Sellers Stockholder Representative shall use its Reasonable Best Efforts to make its presentation as promptly as practicable following submission to the Independent Accounting Firm of the disputed items, and each such party shall be entitled, as part of its presentation, to respond to the presentation of the other party and any question and requests of the Independent Accounting Firm. Purchaser and Sellers Stockholder Representative shall instruct the Independent Accounting Firm to deliver the Determination to Purchaser and Sellers Stockholder Representative no later than thirty (30) calendar days following the date on which the disputed items are referred to the Independent Accounting Firm. In deciding any matter, the Independent Accounting Firm (i) shall be bound by the provisions of this Section 2.3(b2.6(b), (ii) may not assign a value to any item greater than the greatest value for such item claimed by either Purchaser or Sellers Stockholder Representative or less than the smallest value for such item claimed by Purchaser or SellersStockholder Representative, and (iii) shall be bound by the express terms, conditions and covenants set forth in this Agreement, including the definition of Working Capital contained herein. In the absence of fraud or manifest error, the Determination shall be conclusive and binding upon Purchaser Purchaser, Stockholder Representative and SellersStockholders. The parties shall direct the Independent Accounting Firm shall to consider only those items and amounts in the Purchaser’s certificate which Purchaser and Sellers Stockholder Representative were unable to resolve. All fees and expenses (including reasonable attorney’s fees and expenses and fees and expenses of the Independent Accounting Firm) incurred in connection with any dispute over Purchaser’s certificate shall be borne by the parties based on the percentage which the portion of the contested amount not awarded to each party bears to the amount actually contested by such party. The Initial Purchase Price as finally adjusted in accordance with this Section 2.6 shall be deemed to be the “Purchase Price”.