Common use of Determination of Final Working Capital Clause in Contracts

Determination of Final Working Capital. If the Representative disagrees in whole or in part with the Closing Statement, then within 60 days after its receipt of the Closing Statement, it will notify Parent of such disagreement in writing (the “Notice of Disagreement”), setting forth in reasonable detail the particulars of any such disagreement; provided, however, that any such objection will be limited to any failure on the part of Parent to prepare the Closing Statement in accordance with the standards set forth in this Section 1.7 and to mathematical or similar errors. A Notice of Disagreement must state which item or items are in dispute (the “Disputed Line Items”) and specify in reasonable detail the good faith basis for each Disputed Line Item. To the extent the Representative provides a Notice of Disagreement within such 60 day period, all items that are not Disputed Line Items will be final, binding and conclusive for all purposes hereunder unless the resolution of any Disputed Line Item affects an undisputed item, in which case such undisputed item will remain open and be considered a Disputed Line Item. In the event that the Representative does not provide a Notice of Disagreement within such 60 day period, the Representative will be deemed to have accepted in full the Closing Statement as prepared by Parent, which will be final, binding and conclusive for all purposes hereunder. In the event any Notice of Disagreement is timely provided, Parent and the Representative will use commercially reasonable efforts for a period of 30 days following the date of Parent’s receipt of the Notice of Disagreement (or such longer period as they may mutually agree) to resolve any Disputed Line Items. During such 30 day period, Parent and the Representative will have access to the working papers, schedules and calculations of the other used in the preparation of the Closing Statement and the Notice of Disagreement and the determination of the Closing Working Capital and Disputed Line Items. If, at the end of such period, Parent and the Representative are unable to resolve such Disputed Line Items, then such Disputed Line Items will be referred to an independent accounting firm of national reputation in the United States selected by the mutual agreement of Parent and the Representative (the “Settlement Accountant”). Parent and the Representative will enter into reasonable and customary arrangements for the services to be rendered by the Settlement Accountant under this Section 1.7. The Settlement Accountant will be directed to determine as promptly as practicable (and in any event within 30 days from the date that the dispute is submitted to it) whether the Disputed Line Items in the Closing Statement were prepared in accordance with the standards set forth in this Section 1.7 and whether and to what extent (if any) the Closing Working Capital requires adjustment. The Settlement Accountant will resolve each Disputed Line Item by calculating such Disputed Line Item in accordance with this Agreement (for each such Disputed Line Item, the amount so calculated is referred to as the “Accountant Determined Amount”) and establishing as the final amount of such Disputed Line Item the applicable Accountant Determined Amount; provided that the Accountant Determined Amount for each Disputed Line Item may not be greater than the highest amount proposed by Parent and the Representative nor lesser than the lowest amount proposed by Parent and the Representative. Parent and the Representative will each furnish to the Settlement Accountant such work papers, schedules, calculations, books and records and other documents and information relating to the disputed issues that each used in their determinations and negotiations, and will answer questions as the Settlement Accountant may reasonably request. The determination of the Settlement Accountant will be final, conclusive and binding on the parties hereto and on the Indemnifying Securityholders. The amounts determined to be the Closing Working Capital pursuant to this Section 1.7(c) will constitute the “Final Working Capital.”

Determination of Final Working Capital. If the Representative disagrees (a) As soon as practicable, but in whole or in part with the Closing Statement, then within 60 no event later than ninety (90) calendar days after its receipt the Initial Closing Date, the Buyer shall prepare and deliver to the Sellers the Measurement Date Reference List. The Measurement Date Reference List shall be accompanied by a statement (the "Statement") setting forth the actual Working Capital as of the Closing Statement, it will notify Parent close of such disagreement in writing business on the Working Capital Calculation Date (which may be a negative Working Capital) and the “Notice of Disagreement”)Average Gross Margin Percentage, setting forth in reasonable detail the particulars of any such disagreement; provided, however, that any such objection will calculations thereof and the supporting details therefor. The Measurement Date Reference List shall be limited to any failure on the part of Parent to prepare the Closing Statement calculated in accordance a manner consistent with the standards sample Measurement Date Reference List set out on Schedule 3.2(a) hereof, and the Working Capital and the Average Gross Margin Percentage shall be calculated in a manner consistent with the sample Working Capital and Average Gross Margin Percentage calculations set out on Schedule 3.2(b) hereof. (b) The Sellers shall have sixty (60) calendar days following receipt of the Measurement Date Reference List and the Statement during which to dispute in writing any item contained in the Measurement Date Reference List or the Statement. Such notice of dispute shall set forth in this Section 1.7 and to mathematical or similar errors. A Notice of Disagreement must state which item or items are in dispute (the “Disputed Line Items”) and specify in reasonable detail the good faith basis for each Disputed Line Itemitems disputed and the Sellers' proposed adjustment to such items. To If the extent Sellers fail to notify the Representative provides a Notice Buyer in writing of Disagreement any such dispute within such 60 day period, all items that are not Disputed Line Items will be final, binding and conclusive for all purposes hereunder unless the resolution of any Disputed Line Item affects an undisputed item, in which case such undisputed item will remain open and be considered a Disputed Line Item. In the event that the Representative does not provide a Notice of Disagreement within such 60 sixty (60) day period, the Representative will Measurement Date Reference List shall be deemed to have accepted in full the Closing Statement as prepared by Parent, which will be final, binding and conclusive for all purposes hereunder. In the event any Notice of Disagreement is timely provided, Parent "Final Reference List" and the Representative will use commercially reasonable efforts for Statement shall be the "Final Statement." If the Sellers timely notify the Buyer in writing of any such dispute, and the Buyer and the Sellers cannot resolve any such dispute within thirty (30) calendar days after receipt by the Buyer of such notice of dispute, such dispute shall be resolved by a period nationally recognized independent accounting firm (the "Independent Accounting Firm") mutually selected by the Buyer and the Sellers; provided that, unless agreed to by the parties hereto, such Independent Accounting Firm shall not have been retained or hired by, or provided services to, any of 30 days following the parties to this Agreement or any of their respective Affiliates on or prior to the date of Parent’s receipt of the Notice of Disagreement (or such longer period as they may mutually agree) to resolve any Disputed Line Items. During such 30 day period, Parent and the Representative will have access to the working papers, schedules and calculations of the other used in the preparation of the Closing Statement and the Notice of Disagreement and the determination of the Closing Working Capital and Disputed Line Items. If, at the end of such period, Parent and the Representative are unable to resolve such Disputed Line Items, then such Disputed Line Items will be referred to an independent accounting firm of national reputation in the United States selected by the mutual agreement of Parent and the Representative (the “Settlement Accountant”). Parent and the Representative will enter into reasonable and customary arrangements for the services to be rendered by the Settlement Accountant under this Section 1.7. The Settlement Accountant will be directed to determine as promptly as practicable (and in any event within 30 days from the date that the dispute is submitted to it) whether the Disputed Line Items in the Closing Statement were prepared in accordance with the standards set forth in this Section 1.7 and whether and to what extent (if any) the Closing Working Capital requires adjustment. The Settlement Accountant will resolve each Disputed Line Item by calculating such Disputed Line Item in accordance with this Agreement (for each such Disputed Line Item, the amount so calculated is referred to as the “Accountant Determined Amount”) and establishing as the final amount of such Disputed Line Item the applicable Accountant Determined Amount; provided that the Accountant Determined Amount for each Disputed Line Item may not be greater than the highest amount proposed by Parent and the Representative nor lesser than the lowest amount proposed by Parent and the Representative. Parent and the Representative will each furnish to the Settlement Accountant such work papers, schedules, calculations, books and records and other documents and information relating to the disputed issues that each used in their determinations and negotiations, and will answer questions as the Settlement Accountant may reasonably requestAgreement. The determination of the Settlement Accountant will selected Independent Accounting Firm shall be final, conclusive made as promptly as practicable and shall be final and binding on the Buyer and the Sellers. If no such selection is made within twenty (20) calendar days, the Independent Accounting Firm shall be selected according to the following procedure: (i) the top twenty Independent Accounting Firms shall be ranked in descending order according to revenue earned for the most recently reported fiscal year ending prior to the Initial Closing Date and (ii) the Independent Accounting Firm selected shall be the first such firm (x) to which none of the parties hereto to this Agreement or any of their respective Affiliates have paid for services rendered of more than two hundred thousand dollars ($200,000) in cash or the fair market value of other consideration for the fiscal year ending immediately prior to the Initial Closing Date and (y) for which none of the parties to this Agreement or any of their respective Affiliates have current engagements in the fiscal year in which the Initial Closing occurs that would result in the payment for services rendered to such Independent Accounting Firm of two hundred thousand dollars ($200,000) or more in the aggregate of cash or the fair market value of other consideration. Any fees and expenses relating to the engagement of the selected Independent Accounting Firm shall be apportioned between the Buyer and the Sellers based on the Indemnifying Securityholderstotal dollar value of the dispute resolved in favor of the Buyer on the one hand or the Sellers on the other hand, with each such party bearing such percentage of the fees and disbursements of the selected Independent Accounting Firm as the aggregate disputes resolved against that party bears to the total dollar value of all disputed exceptions considered by the selected Independent Accounting Firm. The amounts In the event of a dispute, the Measurement Date Reference List and Statement, as agreed by the Buyer and the Sellers, or determined to by the selected Independent Accounting Firm, as the case may be, shall be the Closing Working Capital pursuant to this Section 1.7(c) will constitute "Final Reference List" or the “"Final Working CapitalStatement," as the case may be.”

Determination of Final Working Capital. If the Representative disagrees in whole or in part with the Closing Statement, then within 60 days after its receipt of the Closing Statement, it will notify Parent of such disagreement in writing (the “Notice of Disagreement”), setting forth in reasonable detail the particulars of any such disagreement; provided, however, that any such objection will be limited to any failure on the part of Parent to prepare the Closing Statement in accordance with the standards set forth in this Section 1.7 and to mathematical or similar errors. A Notice of Disagreement must state which item or items are in dispute (the “Disputed Line Items”) and specify in reasonable detail the good faith basis for each Disputed Line Item. To the extent the Representative provides a Notice of Disagreement within such 60 day period, all items that are not Disputed Line Items will be final, binding and conclusive for all purposes hereunder unless the resolution of any Disputed Line Item affects an undisputed item, in which case such undisputed item will remain open and be considered a Disputed Line Item. In the event that the Representative does not provide a Notice of Disagreement within such 60 day period, the Representative will be deemed to have accepted in full the Closing Statement as prepared by Parent, which will be final, binding and conclusive for all purposes hereunder. In the event any Notice of Disagreement is timely provided, Parent and the Representative will use commercially reasonable efforts for a period of 30 days following the date of Parent’s receipt of the Notice of Disagreement (or such longer period as they may mutually agree) to resolve any Disputed Line Items. During such 30 day period, Parent and the Representative will have access to the working papers, schedules and calculations of the other used in the preparation of the Closing Statement and the Notice of Disagreement and the determination of the Closing Working Capital and Disputed Line Items. If, at the end of such period, Parent and the Representative are unable to resolve such Disputed Line Items, then such Disputed Line Items will be referred to an independent accounting firm of national reputation in the United States selected by the mutual agreement of Parent and the Representative (the “Settlement Accountant”). Parent and the Representative will enter into reasonable and customary arrangements for the services to be rendered by the Settlement Accountant under this Section 1.7. The Settlement Accountant will be directed to determine as promptly as practicable (and in any event within 30 days from the date that the dispute is submitted to it) whether the Disputed Line Items in the Closing Statement were prepared in accordance with the standards set forth in this Section 1.7 and whether and to what extent (if any) the Closing Working Capital 12 requires adjustment. The Settlement Accountant will resolve each Disputed Line Item by calculating such Disputed Line Item in accordance with this Agreement (for each such Disputed Line Item, the amount so calculated is referred to as the “Accountant Determined Amount”) and establishing as the final amount of such Disputed Line Item the applicable Accountant Determined Amount; provided that the Accountant Determined Amount for each Disputed Line Item may not be greater than the highest amount proposed by Parent and the Representative nor lesser than the lowest amount proposed by Parent and the Representative. Parent and the Representative will each furnish to the Settlement Accountant such work papers, schedules, calculations, books and records and other documents and information relating to the disputed issues that each used in their determinations and negotiations, and will answer questions as the Settlement Accountant may reasonably request. The determination of the Settlement Accountant will be final, conclusive and binding on the parties hereto and on the Indemnifying Securityholders. The amounts determined to be the Closing Working Capital pursuant to this Section 1.7(c) will constitute the “Final Working Capital.”” (d) Parent, on the one hand, and the Representative, on the other hand shall each bear 50% of the costs and expenses of the Settlement Accountant arising out of services performed pursuant to this Section 1.7.

Determination of Final Working Capital. If the Representative disagrees (a) As soon as practicable, but in whole or in part with no event later than 120 calendar days after the Closing StatementDate, then within 60 days after its receipt the Purchaser shall review the books and records of the Closing Statement, it will notify Parent of such disagreement in writing Companies and Subsidiaries to determine the Working Capital and shall prepare and deliver to Sellers a statement (the “Notice of Disagreement”), "Statement") setting forth the Working Capital and setting forth in reasonable detail the particulars of any such disagreement; provided, however, that any such objection will calculation thereof. The Working Capital shall be limited to any failure on the part of Parent to prepare the Closing Statement calculated in accordance with GAAP. (b) Sellers' Representative shall have 30 calendar days following receipt of the standards Statement during which to dispute in writing any item contained in the Statement. Such notice of dispute shall set forth in this Section 1.7 and to mathematical or similar errors. A Notice of Disagreement must state which item or items are in dispute (the “Disputed Line Items”) and specify in reasonable detail the good faith basis for each Disputed Line Itemitems disputed and Sellers' Representative's proposed adjustment to such items. To If the extent Sellers' Representative fails to notify the Representative provides a Notice Purchaser in writing of Disagreement any such dispute within such 60 day period, all items that are not Disputed Line Items will be final, binding and conclusive for all purposes hereunder unless the resolution of any Disputed Line Item affects an undisputed item, in which case such undisputed item will remain open and be considered a Disputed Line Item. In the event that the Representative does not provide a Notice of Disagreement within such 60 30-day period, the Statement shall be the "Final Statement." If the Sellers' Representative will be deemed to have accepted timely notifies the Purchaser in full the Closing Statement as prepared by Parentwriting of any such dispute, which will be final, binding and conclusive for all purposes hereunder. In the event any Notice of Disagreement is timely provided, Parent and the Purchaser and the Sellers' Representative will use commercially reasonable efforts for a period of 30 days following the date of Parent’s receipt of the Notice of Disagreement (or such longer period as they may mutually agree) to cannot resolve any Disputed Line Items. During such dispute within 30 day period, Parent and the Representative will have access to the working papers, schedules and calculations of the other used in the preparation of the Closing Statement and the Notice of Disagreement and the determination of the Closing Working Capital and Disputed Line Items. If, at the end calendar days after receipt by Purchaser of such periodnotice of dispute, Parent and the Representative are unable to resolve such Disputed Line Items, then such Disputed Line Items will dispute shall be referred to an resolved by a nationally recognized independent accounting firm of national reputation in the United States mutually selected by the mutual agreement of Parent Purchaser and the Sellers' Representative (the “Settlement Accountant”"Independent Accounting Firm"). Parent and the Representative will enter into reasonable and customary arrangements for the services to be rendered by the Settlement Accountant under this Section 1.7. The Settlement Accountant will be directed to determine as promptly as practicable (and in any event within 30 days from the date that the dispute is submitted to it) whether the Disputed Line Items in the Closing Statement were prepared in accordance with the standards set forth in this Section 1.7 and whether and to what extent (if any) the Closing Working Capital requires adjustment. The Settlement Accountant will resolve each Disputed Line Item by calculating such Disputed Line Item in accordance with this Agreement (for each such Disputed Line Item, the amount so calculated is referred to as the “Accountant Determined Amount”) and establishing as the final amount of such Disputed Line Item the applicable Accountant Determined Amount; provided that the Accountant Determined Amount for each Disputed Line Item may not be greater than the highest amount proposed by Parent and the Representative nor lesser than the lowest amount proposed by Parent and the Representative. Parent and the Representative will each furnish to the Settlement Accountant such work papers, schedules, calculations, books and records and other documents and information relating to the disputed issues that each used in their determinations and negotiations, and will answer questions as the Settlement Accountant may reasonably request. The determination of the Settlement Accountant will Independent Accounting Firm shall be final, conclusive made as promptly as practicable and shall be final and binding on Purchaser and each of the parties hereto Sellers. Any fees and on expenses relating to the Indemnifying Securityholdersengagement of the Independent Accounting Firm shall be borne one-half by the Purchaser and one-half collectively by the Sellers, in accordance with their Percentage Interests. The amounts determined to In the event of a dispute, the Statement, as modified by resolution by Purchaser and the Sellers' Representative, or by the Independent Accounting Firm, shall be the Closing Working Capital pursuant "Final Statement." Following the issuance of the Statement until the Statement becomes the Final Statement, Purchaser shall make available to this Section 1.7(cthe Sellers and their representatives, such books and records of the Companies and the Subsidiaries as Sellers may reasonably request. (c) will constitute If the “Final Working Capital, as set forth in the Final Statement is less than $2,000,000, the Sellers shall pay the Purchaser, no later than five (5) Business Days from the date of such Final Statement, an amount equal to such difference in cash. Each Seller shall be responsible for paying only such Seller's Percentage Interest of the difference to the Purchaser.” (d) If the Working Capital, as set forth in the Final Statement, is greater than $2,000,000, then the Purchaser shall pay such excess to the Sellers in accordance with their Percentage Interests, not later than five (5) Business Days from the date of such Final Statement.