Common use of Determination of Closing Adjustment Clause in Contracts

Determination of Closing Adjustment. No later than five (5) Business Days prior to the Closing, the Company shall provide Acquirer with its good faith estimate of Working Capital (“Estimated Working Capital”), its good faith estimate of the aggregate amount of all Cash (“Estimated Cash” and the amount by which such amount exceeds the Minimum Cash Amount, the “Estimated Excess Cash Amount”), its good faith estimate of the aggregate amount of Company Indebtedness (“Estimated Company Indebtedness”), its good faith estimate of the aggregate amount of unpaid Company Transaction Expenses (“Estimated Company Transaction Expenses”), and the resulting calculation of the Total Adjusted Merger Consideration, in each case, calculated consistent with the definitions thereof set forth herein (the statement setting forth such calculations, the “Pre-Closing Statement”). During the period after delivery of such Pre-Closing Statement and prior to the Closing Date, (i) the Company will cooperate in good faith with Acquirer in the event that Acquirer disputes any item set forth in such Pre-Closing Statement; provided that if the Company and Acquirer are not able to mutually agree on any disputed item prior to the Closing Date, the Pre-Closing Statement provided by the Company, as modified to include any agreed changes, shall be binding for purposes of this Section 1.17 and (ii) Acquirer and its advisors (including, without limitation, its independent accounting firm) shall be provided with such access to the financial books and records and personnel of the Company, its Subsidiary and the Stockholders’ Agent as it may reasonably request to enable it to evaluate the calculations of Estimated Working Capital, Estimated Cash and Estimated Excess Cash Amount, Estimated Company Indebtedness and Estimated Company Transaction Expenses.

Determination of Closing Adjustment. No later than five three (53) Business Days prior to the Closing, the Company shall provide Acquirer the Evolent Entities with a statement (the “Estimated Closing Statement”) setting forth its good faith estimate of Working Capital as of the Measurement Time (“Estimated Working Capital”), its a good faith estimate of the aggregate amount of all Cash of the Company Group as of the Measurement Time (“Estimated Cash” and the amount by which such amount exceeds the Minimum Cash Amount, the “Estimated Excess Cash Amount”), its a good faith estimate of the aggregate amount of all Indebtedness of the Company Indebtedness Group as of immediately prior to the Closing (other than with respect to Taxes included in Indebtedness, which shall be calculated as of the end of the day on the Closing Date) (“Estimated Company Indebtedness”), its a good faith estimate of the aggregate amount of unpaid all Company Transaction Expenses of the Company Group as of immediately prior to the Closing (“Estimated Company Transaction Expenses”), ) and the resulting calculation of amount by which the Total Adjusted Merger ConsiderationAggregate Initial Cash Consideration is to be adjusted on account thereof. In addition, in each case, calculated consistent with the definitions thereof Estimated Closing Statement will set forth herein (the statement setting forth such calculations, the “Pre-Closing Statement”)Excluded Aetna Receivables. During the period after delivery of such Pre-The Estimated Closing Statement and the determinations contained therein shall be prepared in accordance with this Agreement, the Accounting Principles and Schedule 1.1(c). The Sellers’ Representative and the Company shall (i) provide the Evolent Entities and their Representatives with reasonable access during normal business hours to the books, records (including work papers, schedules, memoranda and other documents), supporting data, facilities and employees of the Company for purposes of their review of the Closing Statement, and (ii) reasonably cooperate with the Evolent Entities and their Representatives in connection with such review, including providing on a timely basis all other information reasonably necessary or useful in connection with the review of the Estimated Closing Statement as is requested by the Purchaser or its Representatives. Notwithstanding anything to the contrary in this Agreement, between the Measurement Time and the Closing, the Sellers shall not, and Sellers shall not cause any member of the Company Group to, take any action (or omit to take any action) (including, for the avoidance of doubt, payment of any dividends, satisfaction of any Indebtedness, or payment of any Company Transaction Expenses) with the effect of modifying Estimated Cash, Estimated Indebtedness, Estimated Working Capital or Estimated Company Transaction Expenses (in each case as if such amounts were measured as of immediately prior to the Closing Date, (irather than as of the Measurement Time) in order to increase the Company will cooperate in good faith with Acquirer in Aggregate Initial Cash Consideration payable to the event that Acquirer disputes Sellers. If any item set forth in such Pre-payments are made between the Measurement Time and the Closing Statement; provided that if the Company and Acquirer which are not able captured as a deduction to mutually agree Aggregate Initial Cash Consideration through either a liability in Net Working Capital, Transaction Expenses or Indebtedness, Available Cash shall be reduced by the value of such payment. For the avoidance of doubt, and without duplication, if any payments are made between the Measurement Time and the end of the day on any disputed item prior to the Closing DateDate which reduce the value of Accrued Income Taxes, the Pre-Closing Statement provided Available Cash shall be reduced by the Company, as modified value of such payment. The calculations of Actual Working Capital and Actual Cash delivered pursuant to include any agreed changes, shall be binding for purposes of this Section 1.17 and (ii) Acquirer and its advisors (including, without limitation, its independent accounting firm2.10(b) shall be provided with such access based upon the draft Closing Statement delivered pursuant to this Section 2.10(a) after the Company’s good faith consideration of the reasonable comments of the Purchaser thereon. The Company shall also deliver to the financial books Evolent Entities, together with the Closing Statement, the updated Distribution Waterfall reflecting amounts to be paid in accordance with this Agreement to each Company Stockholder and records and personnel of Company Optionholder at the Company, its Subsidiary and the Stockholders’ Agent as it may reasonably request to enable it to evaluate the calculations of Estimated Working Capital, Estimated Cash and Estimated Excess Cash Amount, Estimated Company Indebtedness and Estimated Company Transaction ExpensesClosing.

Determination of Closing Adjustment. No later than five three (53) Business Days prior to the Closing, the Company shall provide Acquirer Buyer with a written statement certified by an executive officer of the Company (the “Estimated Closing Statement”) of its good faith estimate of Working Capital as of the close of business on the day prior to the date hereof (“Estimated Working Capital”), its good faith estimate of the aggregate amount of all Cash of the Company as of the close of business on the day prior to the date hereof (“Estimated Cash” and the amount by which such amount exceeds the Minimum Cash Amount, the “Estimated Excess Cash Amount”), its good faith estimate of the aggregate amount of all Indebtedness of the Company Indebtedness as of immediately prior to the Closing (“Estimated Company Indebtedness”), its good faith estimate of the aggregate amount of unpaid Company all Transaction Expenses as of the Closing (“Estimated Company Transaction Expenses”), and the resulting calculation amount, if any, by which the Purchase Price is to be adjusted as a result thereof. The Company shall reasonably consult with Buyer prior to delivery of the Total Adjusted Merger ConsiderationEstimated Closing Statement; provided, that in each caseno event shall such consultation or the delivery of such Estimated Closing Statement be deemed to constitute the agreement of Buyer to any of the estimates or amounts set forth in such Estimated Closing Statement, calculated consistent and in no way shall delivery of the Estimated Closing Statement or the consummation of the Closing be construed as a waiver by Buyer of its rights under this Section 2.3. The Estimated Working Capital, Estimated Cash, Estimated Indebtedness and Estimated Transaction Expenses set forth in the Estimated Closing Statement (i) will be prepared in accordance with the definitions thereof set forth herein (the statement setting forth such calculationsand, the “Pre-Closing Statement”). During the period after delivery of such Pre-Closing Statement and prior to the Closing Date, (i) the Company will cooperate in good faith with Acquirer in the event that Acquirer disputes any item set forth in such Pre-Closing Statement; provided that if the Company and Acquirer are not able to mutually agree on any disputed item prior to the Closing Date, the Pre-Closing Statement provided by the Company, as modified to include any agreed changes, shall be binding for purposes of this Section 1.17 and (ii) Acquirer and its advisors (including, without limitation, its independent accounting firm) shall be provided with such access to the financial books and records and personnel of the Company, its Subsidiary and the Stockholders’ Agent as it may reasonably request to enable it to evaluate the calculations case of Estimated Working Capital, Estimated Cash and Estimated Excess Cash AmountIndebtedness, Estimated the standards and methods used in the Financial Statements, applied consistently, and (ii) will disregard any and all effects on the assets and Liabilities of the Company Indebtedness and Estimated Company Transaction Expensesas a result of the transactions contemplated by this Agreement (including any financing arrangements entered into by Buyer or any of its Affiliates in connection therewith).

Determination of Closing Adjustment. No later than five three (53) Business Days prior to the Closing, the Company Seller Parent (on behalf of all Sellers) shall provide Acquirer Purchaser with a statement (the “Estimated Closing Statement”) setting forth its good faith estimate of Working Capital as of the Adjustment Calculation Time (“Estimated Working Capital”), its good faith estimate of the aggregate amount of all Cash and Cash Equivalents as of the Adjustment Calculation Time (“Estimated Cash” and the amount by which such amount exceeds the Minimum Cash Amount, the “Estimated Excess Cash Amount”), its good faith estimate of the aggregate amount of Company all Indebtedness as of immediately prior to the Closing (“Estimated Company Indebtedness”), its good faith estimate of the aggregate amount of unpaid all Company Transaction Expenses as of immediately prior to the Closing (“Estimated Company Transaction Expenses”), ) and the resulting calculation amount, if any, by which the Purchase Price is to be adjusted in accordance with Section 2.2(a) as a result thereof, all of the Total Adjusted Merger Considerationforegoing being presented with reasonable supporting documentation and prepared in accordance with the Accounting Principles. Together with the Estimated Closing Statement, Seller Parent (on behalf of all Sellers) will deliver to Purchaser the work papers (subject to compliance with Seller Parent’s independent accountants’ customary procedures for release) that, in Seller Parent’s reasonable determination, support and were used in preparation of the estimates of each casecomponent of the Estimated Working Capital, calculated consistent with Estimated Cash, Estimated Indebtedness and the definitions thereof set forth herein (the statement setting forth such calculations, the “Pre-Closing Statement”)Estimated Company Transaction Expenses. During the period after the delivery of such Pre-the Estimated Closing Statement and prior to the Closing DateClosing, (iA) Purchaser shall have an opportunity to review the Company will cooperate Estimated Closing Statement for a period of two (2) Business Days and discuss such statement with Seller Parent (on behalf of all Sellers) and the Acquired Companies shall consider in good faith any comments by Purchaser with Acquirer in respect to the event that Acquirer disputes any item amount set forth in such Pre-the Estimated Closing Statement; provided that if the Company provided, however, that, without prejudice to Purchaser’s rights under Sections 2.5(b), (c) and Acquirer are not able to mutually agree on any disputed item prior to the Closing Date(d), the Pre-Estimated Closing Statement provided by the Company, as modified to include any agreed changes, shall be binding for purposes of this Section 1.17 and (ii) Acquirer and its advisors (including, without limitation, its independent accounting firm) shall be provided with such access to the financial books and records and personnel of the Company, its Subsidiary and the Stockholders’ Agent as it may reasonably request to enable it to evaluate the calculations of Estimated Working Capital, Estimated Cash and Estimated Excess Cash Amount, Estimated Company Indebtedness and Estimated Company Transaction Expensescontrol.

Determination of Closing Adjustment. No later than five two (52) Business Days prior to the Closing, the Company Seller shall provide Acquirer Buyer with its a certificate executed by the Chief Financial Officer of Seller (the “Estimated Closing Date Statement”) setting forth in reasonable detail (i) a good faith estimate of Closing Working Capital (“Estimated Working Capital”) (prepared in accordance with the schedule attached as Section 2.06 of the Disclosure Schedules), its (ii) a good faith estimate of the aggregate amount of all Cash Assumed Indebtedness of Seller as of the open of business on the Closing Date (“Estimated Cash” and the amount by which such amount exceeds the Minimum Cash Amount, the “Estimated Excess Cash Amount”), its good faith estimate of the aggregate amount of Company Indebtedness (“Estimated Company Assumed Indebtedness”), its good faith estimate of and (iii) the aggregate amount of unpaid Company Transaction Expenses (“Estimated Company Transaction Expenses”), and the resulting calculation of the Total Adjusted Merger ConsiderationEstimated Closing Adjustment, together with such schedules and data with respect to the determination thereof as may be appropriate to support the calculations therein. The Estimated Closing Date Statement shall be prepared in each caseaccordance with GAAP applied using the same accounting methods, calculated practices, principles, policies and procedures, with consistent with classifications, judgments and valuation and estimation methodologies that were used in the definitions thereof preparation of the Audited Financial Statements for the most recent fiscal year end, subject to the modifications and limitations set forth herein (on Section 2.06 of the statement setting forth such calculations, the “Pre-Closing Statement”). During the period after delivery of such Pre-Closing Statement and prior to the Closing Date, (i) the Company will cooperate in good faith with Acquirer in the event that Acquirer disputes any item set forth in such Pre-Closing StatementDisclosure Schedules; provided that to the extent there is any discrepancy between GAAP applied using 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 Schedule 2.06, Schedule 2.06 shall govern. Buyer and its Representatives shall have an opportunity to review and reasonably comment on the Estimated Closing Date Statement delivered by Seller, which shall be subject to Buyer’s reasonable approval. Set forth in Section 2.06 of the Disclosure Schedules are examples of the Estimated Closing Date Statement determined as if the Company Closing had occurred on the date of the Interim Financial Statements, and Acquirer are not able to mutually agree on any disputed item prior to the Closing Date, the Pre-Closing Statement provided by the Company, as modified to include any agreed changes, shall be binding assuming for purposes of this Section 1.17 and (ii) Acquirer and its advisors (including, without limitation, its independent accounting firm) shall be provided with such access to the financial books and records and personnel examples of the CompanyEstimated Closing Adjustment, its Subsidiary and the Stockholders’ Agent as it may reasonably request to enable it to evaluate the calculations of both that Target Working Capital is greater than Estimated Working Capital, and that Estimated Cash and Estimated Excess Cash Amount, Estimated Company Indebtedness and Estimated Company Transaction ExpensesWorking Capital is greater than Target Working Capital.