Common use of Determination of the Closing Net Working Capital Clause in Contracts

Determination of the Closing Net Working Capital. (a) Within ninety (90) days after the Closing Date, Parent shall prepare and deliver to the Company Stockholder a statement setting forth its calculation of Net Working Capital as of the Closing (the “Final Closing Working Capital Statement”) and a certificate of the Parent that the Final Working Capital Statement was prepared using the same accounting methods, policies, principles, practices and procedures, with consistent classifications, judgments and estimation methodologies that were used in the preparation of the Company Financial Statements. (b) If the Company Stockholder disagrees with the Final Closing Working Capital Statement, the Company Stockholder shall notify Parent in writing of such disagreement within thirty (30) days after delivery of the statement, which notice shall describe the nature of any such disagreement in reasonable detail, identify the specific items involved and, to the extent practicable, the dollar amount of each such disagreement and provide reasonable supporting documentation for each such disagreement (collectively, a “Disagreement Notice”). During the Company Stockholder review of the Final Closing Working Capital Statement, the Company Stockholder shall have reasonable access to any documents, schedules or work papers, to the personnel who prepared the statement and to other employees of or advisors to the Parent or either Surviving Corporation to the extent access is reasonably required for the Company Stockholder to assess the acceptability of the Final Closing Working Capital Statement. If the Company Stockholder fails to deliver such notice in such thirty (30) day period, the Company Stockholder shall have waived its right to contest, and shall be deemed to have agreed to, the Final Closing Working Capital Statement. (c) If the Company Stockholder notifies Parent of any objections to the Final Closing Working Capital Statement, the Company Stockholder and Parent shall, within thirty (30) days following the date of such notice (the “Resolution Period”), negotiate in good faith to resolve their differences and any written resolution by them as to any disputed item or amount shall be final and binding for all purposes under this Agreement. If at the conclusion of the Resolution Period, the Company Stockholder and Parent are unable to resolve all disagreements identified by the Company Stockholder pursuant to Section 10.4(a), then such disagreements shall be submitted for final and binding resolution to an independent nationally recognized accounting firm selected in good faith and by mutual agreement of the Company Stockholder and Parent to resolve such disagreements (the “Accounting Arbitrator”). The Accounting Arbitrator will only consider those items and amounts set forth in the Final Closing Working Capital Statement as to which the Company Stockholder and Parent have disagreed and must resolve the matter in accordance with the terms and provisions of this Agreement and shall deliver to the Company Stockholder and Parent, as promptly as practicable and in any event within sixty (60) days after its appointment, a written report setting forth the resolution of any such disagreement determined in accordance with the terms of this Agreement. The Accounting Arbitrator shall make its determination based solely on presentations and supporting material provided by the parties and not pursuant to any independent review. In reaching its determination, the only alternatives available to the Accounting Arbitrator will be to (i) accept the position of the Company Stockholder, (ii) accept the position of Parent or (iii) accept a position between those two positions. The determination of the Accounting Arbitrator shall be final and binding upon the Company Stockholder and Parent. Judgment may be entered upon the determination of the Accounting Arbitrator in any court having jurisdiction over the party against which such determination is to be enforced. The fees, expenses and costs of the Accounting Arbitrator shall be borne pro rata as between the Company Stockholder (on behalf of the Indemnifying Parties), on the one hand, and Parent, on the other hand, in proportion to the final allocation made by such Accounting Arbitrator of the disputed items weighted in relation to the claims made by the Company Stockholder and Parent, such that the prevailing party pays the lesser proportion of such fees, costs and expenses.

Determination of the Closing Net Working Capital. (a) Within ninety (90) days after the Closing Date, Parent shall prepare and deliver to the Company Stockholder Stockholders’ Agent a statement setting forth its calculation of Net Working Capital as of the Closing (the “Final Closing Working Capital Statement”) and a certificate of the Parent that the Final Working Capital Statement was prepared using the same accounting methods, policies, principles, practices and procedures, with consistent classifications, judgments and estimation methodologies that were used in the preparation of the Company Financial StatementsEstimated Working Capital Statement. (b) If the Company Stockholder Stockholders’ Agent disagrees with the Final Closing Working Capital Statement, the Company Stockholder Stockholders’ Agent shall notify Parent in writing of such disagreement within thirty (30) days after delivery of the statement, which notice shall describe the nature of any such disagreement in reasonable detail, identify the specific items involved and, to the extent practicable, the dollar amount of each such disagreement and provide reasonable supporting documentation for each such disagreement (collectively, a “Disagreement Notice”). During the Company Stockholder Stockholders’ Agent review of the Final Closing Working Capital Statement, the Company Stockholder Stockholders’ Agent shall have reasonable access to any documents, schedules or work papers, to the personnel who prepared the statement and to other employees of or advisors to the Parent or either the Surviving Corporation Entity to the extent access is reasonably required for the Company Stockholder Stockholders’ Agent to assess the acceptability of the Final Closing Working Capital Statement. If the Company Stockholder Stockholders’ Agent fails to deliver such notice in such thirty (30) day period, the Company Stockholder Stockholders’ Agent shall have waived its right to contest, and shall be deemed to have agreed to, the Final Closing Working Capital Statement. (c) If the Company Stockholder Stockholders’ Agent notifies Parent of any objections to the Final Closing Working Capital Statement, the Company Stockholder Stockholders’ Agent and Parent shall, within thirty (30) days following the date of such notice (the “Resolution Period”), negotiate in good faith to resolve their differences and any written resolution by them as to any disputed item or amount shall be final and binding for all purposes under this Agreement. If at the conclusion of the Resolution Period, the Company Stockholder Stockholders’ Agent and Parent are unable to resolve all disagreements identified by the Company Stockholder Stockholders’ Agent pursuant to Section 10.4(a), then such disagreements shall be submitted for final and binding resolution to an independent nationally recognized accounting firm selected in good faith and by mutual agreement of the Company Stockholder Stockholders’ Agent and Parent to resolve such disagreements (the “Accounting Arbitrator”). The Accounting Arbitrator will only consider those items and amounts set forth in the Final Closing Working Capital Statement as to which the Company Stockholder Stockholders’ Agent and Parent have disagreed and must resolve the matter in accordance with the terms and provisions of this Agreement and shall deliver to the Company Stockholder Stockholders’ Agent and Parent, as promptly as practicable and in any event within sixty (60) days after its appointment, a written report setting forth the resolution of any such disagreement determined in accordance with the terms of this Agreement. The Accounting Arbitrator shall make its determination based solely on presentations and supporting material provided by the parties and not pursuant to any independent review. In reaching its determination, the only alternatives available to the Accounting Arbitrator will be to (i) accept the position of the Company StockholderStockholders’ Agent, (ii) accept the position of Parent or (iii) accept a position between those two positions. The determination of the Accounting Arbitrator shall be final and binding upon the Company Stockholder Stockholders’ Agent and Parent. Judgment may be entered upon the determination of the Accounting Arbitrator in any court having jurisdiction over the party against which such determination is to be enforced. The fees, expenses and costs of the Accounting Arbitrator shall be borne pro rata as between the Company Stockholder Stockholders’ Agent (on behalf of the NSC Indemnifying Parties), on the one hand, and Parent, on the other hand, in proportion to the final allocation made by such Accounting Arbitrator of the disputed items weighted in relation to the claims made by the Company Stockholder Stockholders’ Agent and Parent, such that the prevailing party pays the lesser proportion of such fees, costs and expenses.

Determination of the Closing Net Working Capital. (a) 3.4.1 Within ninety (90) days after the Closing Date, Parent shall prepare and deliver to the Company Stockholder a statement setting forth its calculation of Net Working Capital as of the Closing (the “Final Closing Working Capital Statement”) and a certificate of the Parent that the Final Working Capital Statement was prepared using the same accounting methods, policies, principles, practices and procedures, with consistent classifications, judgments and estimation methodologies that were used in the preparation of the Company Financial Statements. (b) If the Company Stockholder disagrees with the Final Closing Working Capital Statement, the Company Stockholder shall notify Parent in writing of such disagreement within thirty (30) days after delivery of the statement, which notice shall describe the nature of any such disagreement in reasonable detail, identify the specific items involved and, to the extent practicable, the dollar amount of each such disagreement and provide reasonable supporting documentation for each such disagreement (collectively, a “Disagreement Notice”). During the Company Stockholder review of the Final Closing Working Capital Statement, the Company Stockholder shall have reasonable access to any documents, schedules or work papers, to the personnel who prepared the statement and to other employees of or advisors to the Parent or either Surviving Corporation to the extent access is reasonably required for the Company Stockholder to assess the acceptability of the Final Closing Working Capital Statement. If the Company Stockholder fails to deliver such notice in such thirty (30) day period, the Company Stockholder shall have waived its right to contest, and shall be deemed to have agreed to, the Final Closing Working Capital Statement. (c) If the Company Stockholder notifies Parent of any objections to the Final Closing Working Capital Statement, the Company Stockholder and Parent shall, within thirty (30) days following the date of Closing Date, the Sellers shall prepare or cause to be prepared (and the Buyers shall co-operate with such notice (preparation to the “Resolution Period”extent reasonably required by Sellers), negotiate in good faith to resolve their differences and any written resolution by them as to any disputed item or amount shall be final and binding for all purposes under this Agreement. If at the conclusion of the Resolution Period, the Company Stockholder and Parent are unable to resolve all disagreements identified by the Company Stockholder pursuant to Section 10.4(a), then such disagreements shall be submitted for final and binding resolution to an independent nationally recognized accounting firm selected in good faith and by mutual agreement of the Company Stockholder and Parent to resolve such disagreements (the “Accounting Arbitrator”). The Accounting Arbitrator will only consider those items and amounts set forth in the Final Closing Working Capital Statement as to which the Company Stockholder and Parent have disagreed and must resolve the matter in accordance with the terms and provisions of this Agreement and shall deliver to the Buyer, (i) a balance sheet of the Company Stockholder as of the Closing Date (the “Proposed Closing Balance Sheet”), and Parent, as promptly as practicable and in any event within sixty (60ii) days after its appointment, a written report setting forth based on the resolution of any such disagreement determined Proposed Closing Balance Sheet in accordance with the terms provisions of this AgreementSchedule 6, a calculation of the Closing Net Working Capital, which shall exclude any amounts in respect of Company Transaction Expenses (the “Proposed Net Working Capital”). The Accounting Arbitrator Sellers shall make provide to the Buyer and its determination representatives access to the personnel and books and records of the Company to the extent related to the preparation of such balance sheet and the calculation of the Proposed Net Working Capital. If the Buyer does not object to the Proposed Net Working Capital, in the manner provided below, the Buyer shall be deemed to have accepted the Proposed Closing Balance Sheet and the Proposed Net Working Capital, which shall be deemed to be the Closing Net Working Capital, and which shall be final, binding and conclusive for all purposes hereunder. 3.4.2 At the end of each calendar month between the Closing Date and the Net Working Capital Substantiation Date, the Sellers shall prepare or cause to be prepared (and the Buyer shall co-operate with such preparation to the extent reasonably required by the Sellers) and shall deliver to the Buyer, a listing of the cash receipts, cash disbursements and liabilities arising which were not included in the Proposed Closing Balance Sheet, occurring subsequent to the Closing Date (each a “Statement of Movements in Net Working Capital”) and shall share such Statements of Movements in Net Working Capital with the Buyers and consult with them in respect of any reasonable questions or comments they may raise thereon. 3.4.3 Within fifteen (15) days following the Net Working Capital Substantiation Date, the Sellers shall prepare or cause to be prepared (and the Buyer shall co-operate with such preparation to the extent reasonably required by the Sellers), and shall deliver to the Buyer, a final Statement of Movements in Net Working Capital from the Closing Date and through to the Net Working Capital Substantiation Date (the “Final Statement of Movements in Net Working Capital”). The Sellers shall provide to the Buyer and its representatives access to the personnel and books and records of the Company to the extent related to the preparation of such Final Statement of Movements in Net Working Capital. If the Buyer does not object to the Final Statement of Movements in Net Working Capital, in the manner provided at Clause 3.4.4 below, the Buyer shall be deemed to have accepted the Final Statement of Movements in Net Working Capital, which shall be final, binding and conclusive for all purposes hereunder. 3.4.4 If the Buyer disagrees with the Proposed Net Working Capital or Final Statement of Movements in Net Working Capital, it shall notify the Sellers of such disagreement in writing within fifteen (15) Business Days after receipt of the Proposed Closing Balance Sheet, the calculation of the Proposed Net Working Capital from the Sellers or Final Statement of Movements in Net Working Capital (as the case may be), and such notice shall set forth in detail the particulars of such disagreement. In the event any such notice of disagreement is timely provided by the Buyer, the Sellers and the Buyer shall use their reasonable endeavours for a period of ten (10) Business Days to resolve any disagreements with respect to the calculation of the Proposed Net Working Capital or Final Statement of Movements in Net Working Capital. If, at the end of such period, the Sellers and the Buyer are unable to resolve such disagreements, then an independent accounting firm of recognised national standing, other than the Sellers’ or the Company’s independent auditors, mutually selected by the Sellers and the Buyer (the “Auditor”), shall resolve any remaining disagreements, acting as expert and not as arbitrator. If the Sellers and the Buyer cannot agree on the Auditor, either party may request the President of the Institute of Chartered Accountants of England and Wales to select such independent accounting firm of recognised national standing as the Auditor, who shall act as expert and not as arbitrator. The Auditor shall be asked to resolve as promptly as practicable, preferably within thirty (30) Business Days of the date on which such dispute is referred to the Auditor, based solely on presentations and supporting material provided written submissions forwarded by the parties Sellers and not pursuant the Buyer to any independent review. In reaching its determinationthe Auditor within ten (10) days following the Auditor’s selection (unless and to the extent that the Auditor establishes different procedures), the only alternatives available outstanding disagreements between the Sellers and the Buyer with respect to the Accounting Arbitrator will be Proposed Closing Balance Sheet, the Proposed Net Working Capital, or Final Statement of Movements in Net Working Capital and to determine whether and to what extent (iif any) accept the position Proposed Net Working Capital calculation or Final Statement of Movements in Net Working Capital requires adjustment. If the Auditor’s calculation of the Company StockholderClosing Net Working Capital or Final Statement of Movements in Net Working Capital varies by more than five percent (5%) from the Proposed Net Working Capital or Final Statement of Movements in Net Working Capital calculated by the Sellers (as the case may be), (ii) accept then the position Sellers shall be responsible for all of Parent or (iii) accept a position between those two positionsthe costs and expenses of the Auditor, and shall pay to the Buyer all of the Buyer’s reasonable legal, accounting and other fees and expenses of participating in such dispute resolution procedure. Otherwise the Buyer shall pay the fees and expenses of the Auditor. The Proposed Net Working Capital or Final Statement of Movements in Net Working Capital, as adjusted for the Auditor’s determination of the Accounting Arbitrator shall be final and binding upon the Company Stockholder and Parent. Judgment may be entered upon the determination of the Accounting Arbitrator in any court having jurisdiction over the party against which such determination is deemed to be enforced. The feesthe Closing Net Working Capital or Final Statement of Movements in Net Working Capital (as the case may be), expenses and costs of the Accounting Arbitrator shall be borne pro rata as between final, binding and conclusive for all purposes hereunder in the Company Stockholder (on behalf absence of the Indemnifying Parties), on the one hand, and Parent, on the other hand, in proportion to the final allocation made by such Accounting Arbitrator of the disputed items weighted in relation to the claims made by the Company Stockholder and Parent, such that the prevailing party pays the lesser proportion of such fees, costs and expensesmanifest error or fraud.

Determination of the Closing Net Working Capital. (a) Within ninety (90) days after the Closing Date, Parent shall prepare and deliver to the Company Stockholder Stockholders’ Agent a statement setting forth its calculation of Net Working Capital as of the Closing (the “Final Closing Working Capital Statement”) and a certificate of the Parent that the Final Working Capital Statement was prepared using the same accounting methods, policies, principles, practices and procedures, with consistent classifications, judgments and estimation methodologies that were used in the preparation of the Company Financial Statements. (b) If the Company Stockholder Stockholders’ Agent disagrees with the Final Closing Working Capital Statement, the Company Stockholder Stockholders’ Agent shall notify Parent in writing of such disagreement within thirty (30) days after delivery of the statement, which notice shall describe the nature of any such disagreement in reasonable detail, identify the specific items involved and, to the extent practicable, the dollar amount of each such disagreement and provide reasonable supporting documentation for each such disagreement (collectively, a “Disagreement Notice”). During the Company Stockholder Stockholders’ Agent review of the Final Closing Working Capital Statement, the Company Stockholder Stockholders’ Agent shall have reasonable access to any documents, schedules or work papers, to the personnel who prepared the statement and to other employees of or advisors to the Parent or either the Surviving Corporation to the extent access is reasonably required for the Company Stockholder Stockholders’ Agent to assess the acceptability of the Final Closing Working Capital Statement. If the Company Stockholder Stockholders’ Agent fails to deliver such notice in such thirty (30) day period, the Company Stockholder Stockholders’ Agent shall have waived its right to contest, and shall be deemed to have agreed to, the Final Closing Working Capital Statement. (c) If the Company Stockholder Stockholders’ Agent notifies Parent of any objections to the Final Closing Working Capital Statement, the Company Stockholder Stockholders’ Agent and Parent shall, within thirty (30) days following the date of such notice (the “Resolution Period”), negotiate in good faith to resolve their differences and any written resolution by them as to any disputed item or amount shall be final and binding for all purposes under this Agreement. If at the conclusion of the Resolution Period, the Company Stockholder Stockholders’ Agent and Parent are unable to resolve all disagreements identified by the Company Stockholder Stockholders’ Agent pursuant to Section 10.4(a), then such disagreements shall be submitted for final and binding resolution to an independent nationally recognized accounting firm selected in good faith and by mutual agreement of the Company Stockholder Stockholders’ Agent and Parent to resolve such disagreements (the “Accounting Arbitrator”). The Accounting Arbitrator will only consider those items and amounts set forth in the Final Closing Working Capital Statement as to which the Company Stockholder Stockholders’ Agent and Parent have disagreed and must resolve the matter in accordance with the terms and provisions of this Agreement and shall deliver to the Company Stockholder Stockholders’ Agent and Parent, as promptly as practicable and in any event within sixty (60) days after its appointment, a written report setting forth the resolution of any such disagreement determined in accordance with the terms of this Agreement. The Accounting Arbitrator shall make its determination based solely on presentations and supporting material provided by the parties and not pursuant to any independent review. In reaching its determination, the only alternatives available to the Accounting Arbitrator will be to (i) accept the position of the Company StockholderStockholders’ Agent, (ii) accept the position of Parent or (iii) accept a position between those two positions. The determination of the Accounting Arbitrator shall be final and binding upon the Company Stockholder Stockholders’ Agent and Parent. Judgment may be entered upon the determination of the Accounting Arbitrator in any court having jurisdiction over the party against which such determination is to be enforced. The fees, expenses and costs of the Accounting Arbitrator shall be borne pro rata as between the Company Stockholder Stockholders’ Agent (on behalf of the Indemnifying Parties), on the one hand, and Parent, on the other hand, in proportion to the final allocation made by such Accounting Arbitrator of the disputed items weighted in relation to the claims made by the Company Stockholder Stockholders’ Agent and Parent, such that the prevailing party pays the lesser proportion of such fees, costs and expenses.