Common use of Determination of Valuation Date Working Capital Clause in Contracts

Determination of Valuation Date Working Capital. (a) As promptly as practicable following the Closing Date (but not later than 75 days after the Closing Date), Buyer shall: (i) prepare, in accordance with the Agreed Accounting Principles, a balance sheet as of the Valuation Date, which balance sheet shall reflect the Purchased Assets and the Assumed Liabilities (the “Preliminary Valuation Date Balance Sheet”); (ii) determine the Valuation Date Working Capital in accordance with the provisions of this Agreement (such Valuation Date Working Capital as determined by Buyer being called the “Preliminary Working Capital”); and (iii) deliver to Seller the Preliminary Valuation Date Balance Sheet and a certificate setting forth the Preliminary Working Capital (the “Preliminary Accounting Report”). (b) Promptly following receipt of the Preliminary Accounting Report, Seller may review the same and, within 30 days after the date of such receipt, may deliver to Buyer a certificate (signed by its chief financial officer or its chief accounting officer) setting forth its objections to the Preliminary Valuation Date Balance Sheet and the Preliminary Working Capital as set forth in the Preliminary Accounting Report, together with a summary of the reasons therefor and calculations which, in its view, are necessary to eliminate such objections. If Seller does not so object within such 30-day period, the Preliminary Valuation Date Balance Sheet and the Preliminary Working Capital set forth in the Preliminary Accounting Report shall be final and binding as the “Valuation Date Balance Sheet” and the Valuation Date Working Capital, respectively, for purposes of this Agreement but shall not limit the representations, warranties, covenants and agreements of the parties set forth elsewhere in this Agreement.

Determination of Valuation Date Working Capital. (a) As promptly as practicable following the Closing Date (practicable, but not no later than 75 60 days after the Closing Effective Date), Buyer shallParent shall cause the Company to: (i) prepare, in accordance with the Agreed Accounting Principles, a balance sheet with respect to the Company as of the Valuation Date, which balance sheet shall reflect the Purchased Assets and the Assumed Liabilities Date (the “Preliminary Valuation Date Balance Sheet”); (ii) determine the Valuation Date Working Capital in accordance with the Agreed Accounting Principles and the provisions of this Agreement (such Valuation Date Working Capital as determined by Buyer the Company being called referred to as the “Preliminary Valuation Date Working Capital”); and (iii) deliver to Seller the Shareholder Representative the Preliminary Valuation Date Balance Sheet and a certificate setting forth calculation of the Preliminary Valuation Date Working Capital (the “Preliminary Accounting Report”). (b) Promptly following Following receipt of the Preliminary Accounting Report, Seller the Shareholder Representative may review the same and, within 30 days after the date of such receiptreceipt (the “Notice Period”), may deliver to Buyer Parent a certificate (signed by its chief financial officer or its chief accounting officer) it setting forth its objections to the Preliminary Valuation Date Balance Sheet and the Preliminary Valuation Date Working Capital as set forth in the Preliminary Accounting Report, together with a summary specifying in reasonable detail the nature and extent of the reasons therefor and calculations which, in its view, are necessary to eliminate such objections. If Seller In the event the Shareholder Representative does not so object within such 30-day periodthe Notice Period, the Preliminary Valuation Date Balance Sheet and the Preliminary Valuation Date Working Capital set forth in the Preliminary Accounting Report shall be final and binding as the “Valuation Date Balance Sheet” and the Valuation Date Working Capital, respectively, for purposes of this Agreement but shall not limit the representations, warranties, covenants and agreements of the parties set forth elsewhere in this Agreement. (c) In the event the Shareholder Representative so objects within the Notice Period, Parent and the Shareholder Representative shall use reasonable efforts to resolve by written agreement (the “Agreed Adjustments”) any differences as to the Preliminary Valuation Date Balance Sheet and the Preliminary Valuation Date Working Capital and, in the event Parent and the Shareholder Representative so resolve any such differences, the Preliminary Valuation Date Balance Sheet and the Preliminary Valuation Date Working Capital set forth in the Preliminary Accounting Report as adjusted by the Agreed Adjustments shall be final and binding as the “Valuation Date Balance Sheet” and the Valuation Date Working Capital, respectively, for purposes of this Agreement but shall not limit the representations, warranties, covenants and agreements of the parties set forth elsewhere in this Agreement. (d) In the event any objections raised by the Shareholder Representative are not resolved by Agreed Adjustments within the 30 day period next following the Notice Period, then Parent and the Shareholder Representative shall submit the objections that are then unresolved to Ernst & Young LLP and such firm (the “Accounting Firm”) shall be directed by Parent and the Shareholder Representative to resolve the unresolved objections (based solely on the presentations by Parent and by the Shareholder Representative as to whether any disputed matter had been determined in a manner consistent with the Agreed Accounting Principles and this Agreement) as promptly as reasonably practicable and to deliver written notice to each of Parent and the Shareholder Representative setting forth its resolution of the disputed matters. The Preliminary Valuation Date Balance Sheet and the Preliminary Valuation Date Working Capital, after giving effect to any Agreed Adjustments and to the resolution of disputed matters by the Accounting Firm, shall be final and binding as the “Valuation Date Balance Sheet” and the Valuation Date Working Capital, respectively, for purposes of this Agreement but shall not limit the representations, warranties, covenants and agreements of the parties set forth elsewhere in this Agreement. (e) The parties hereto shall make available to Parent, Parent’s accountants, the Shareholder Representative, the Shareholder Representative’s accountants and, if applicable, the Accounting Firm such books, records and other information (including work papers) as any of the foregoing may reasonably request to prepare or review the Preliminary Accounting Report or any matters submitted to the Accounting Firm. The fees and expenses of Parent’s accountants shall be paid by Parent. The fees and expenses of the Shareholder Representative’s accountants shall be paid by the Shareholder Representative; provided, however, that up to $50,000 of such fees and expenses shall be reimbursed by the Surviving Corporation. The fees and expenses of the Accounting Firm hereunder shall be paid by the non-prevailing party. A party is the “non-prevailing party” if the Accounting Firm’s determination of Valuation Date Working Capital is closer to the other party’s determination of Valuation Date Working Capital, as submitted to the Accounting Firm, than it is to that party’s determination of Valuation Date Working Capital, as submitted to the Accounting Firm.

Determination of Valuation Date Working Capital. (a) As promptly as practicable following the Closing Date (but not later than 75 days after the Closing Date), Buyer shall: (i) prepare, in accordance with the Agreed Accounting Principles, a balance sheet as of the Valuation Date, which balance sheet shall reflect the Purchased Assets and the Assumed Liabilities (the “Preliminary Valuation Date Balance Sheet”); (ii) determine the Valuation Date Working Capital in accordance with the provisions of this Agreement (such Valuation Date Working Capital as determined by Buyer being called the “Preliminary Working Capital”); and (iii) deliver to Seller the Preliminary Valuation Date Balance Sheet and a certificate setting forth the Preliminary Working Capital (the “Preliminary Accounting Report”). (b) Promptly following receipt of the Preliminary Accounting Report, Seller may review the same and, within 30 days after the date of such receipt, may deliver to Buyer a certificate (signed by its chief financial officer or its chief accounting officer) setting forth its objections to the Preliminary Valuation Date Balance Sheet and the Preliminary Working Capital as set forth in the Preliminary Accounting Report, together with a summary of the reasons therefor and calculations which, in its view, are necessary to eliminate such objections. If Seller does not so object within such 30-day period, the Preliminary Valuation Date Balance Sheet and the Preliminary Working Capital set forth in the Preliminary Accounting Report shall be final and binding as the “Valuation Date Balance Sheet” and the Valuation Date Working Capital, respectively, for purposes of this Agreement but shall not limit the representations, warranties, covenants and agreements of the parties set forth elsewhere in this Agreement. (c) If Seller so objects within such 30-day period, Buyer and Seller shall use their reasonable efforts to resolve by written agreement (the “Agreed Adjustments”) any differences as to the Preliminary Valuation Date Balance Sheet and the Preliminary Working Capital and, if Seller and Buyer so resolve any such differences, the Preliminary Valuation Date Balance Sheet and the Preliminary Working Capital set forth in the Preliminary Accounting Report as adjusted by the Agreed Adjustments shall be final and binding as the Valuation Date Balance Sheet and the Valuation Date Working Capital, respectively, for purposes of this Agreement but shall not limit the representations, warranties, covenants and agreements of the parties set forth elsewhere in this Agreement. (d) If any objections raised by Seller are not resolved by Agreed Adjustments within the 30-day period next following such 30-day period, then Buyer and Seller shall submit the objections that are then unresolved to Deloitte LLP, or, if Deloitte LLP is unwilling or unable to accept such appointment, to another national accounting firm acceptable to both Seller and Buyer, and such firm (the “Accounting Firm”) shall be directed by Buyer and Seller to resolve the unresolved objections (based solely on the presentations by Buyer and by Seller as to whether any disputed matter had been determined in a manner consistent with the Agreed Accounting Principles) as promptly as reasonably practicable and to deliver written notice to each of Buyer and Seller setting forth its resolution of the disputed matters. The Preliminary Valuation Date Balance Sheet and the Preliminary Working Capital, after giving effect to any Agreed Adjustments and to the resolution of disputed matters by the Accounting Firm, shall be final and binding as the “Valuation Date Balance Sheet” and the Valuation Date Working Capital, respectively, for purposes of this Agreement but shall not limit the representations, warranties, covenants and agreements of the parties set forth elsewhere in this Agreement. (e) The parties hereto shall make available to Buyer, Seller and, if applicable, the Accounting Firm, such books, records and other information (including work papers) as any of the foregoing may reasonably request to prepare or review the Preliminary Accounting Report or any matters submitted to the Accounting Firm. The fees and expenses of the Accounting Firm hereunder shall be paid 50% by Buyer and 50% by Seller.

Determination of Valuation Date Working Capital. (a) As promptly as practicable following the Closing Date (practicable, but not no later than 75 60 days after the Closing Date), Buyer shallParent shall cause the Company to: (i) prepare, in accordance with the Agreed Accounting Principles, a balance sheet with respect to the Company as of the Valuation Date, which balance sheet shall reflect the Purchased Assets and the Assumed Liabilities Date (the “Preliminary Valuation Date Balance Sheet”); (ii) determine the Valuation Date Working Capital in accordance with the Agreed Accounting Principles and the provisions of this Agreement (such Valuation Date Working Capital as determined by Buyer the Company being called referred to as the “Preliminary Valuation Date Working Capital”); and (iii) deliver to Seller the Stockholder Representative the Preliminary Valuation Date Balance Sheet and a certificate setting forth calculation of the Preliminary Valuation Date Working Capital (the “Preliminary Accounting Report”). (b) Promptly following Following receipt of the Preliminary Accounting Report, Seller the Stockholder Representative may review the same and, within 30 days after the date of such receiptreceipt (the “Notice Period”), may deliver to Buyer Parent a certificate (signed by its chief financial officer or its chief accounting officer) it setting forth its objections to the Preliminary Valuation Date Balance Sheet and the Preliminary Valuation Date Working Capital as set forth in the Preliminary Accounting Report, together with a summary of the reasons therefor and calculations which, in its view, are necessary to eliminate such objections. If Seller In the event the Stockholder Representative does not so object within such 30-day periodthe Notice Period, the Preliminary Valuation Date Balance Sheet and the Preliminary Valuation Date Working Capital set forth in the Preliminary Accounting Report shall be final and binding as the “Valuation Date Balance Sheet” and the Valuation Date Working Capital, respectively. (c) In the event the Stockholder Representative so objects within the Notice Period, for purposes of this Agreement but Parent and the Stockholder Representative shall use reasonable efforts to resolve by written agreement (the “Agreed Adjustments”) any differences as to the Preliminary Valuation Date Balance Sheet and the Preliminary Valuation Date Working Capital and, in the event Parent and the Stockholder Representative so mutually resolve any such differences, the Preliminary Valuation Date Balance Sheet and the Preliminary Valuation Date Working Capital set forth in the Preliminary Accounting Report as adjusted by the Agreed Adjustments shall be final and binding as the “Valuation Date Balance Sheet” and the Valuation Date Working Capital, respectively. (d) In the event any objections raised by the Stockholder Representative are not limit resolved by Agreed Adjustments within the representations, warranties, covenants and agreements 30 day period following the expiration of the Notice Period, then Parent and the Stockholder Representative shall submit the objections that are then unresolved to RSM McGladrey Inc. (the “Accounting Firm”) and such firm shall be directed by Parent and the Stockholder Representative to resolve the unresolved objections as promptly as reasonably practicable and to deliver written notice to each of Parent and the Stockholder Representative setting forth its resolution of the disputed matters. The Preliminary Valuation Date Balance Sheet and the Preliminary Valuation Date Working Capital, after giving effect to any Agreed Adjustments and to the resolution of disputed matters by the Accounting Firm, shall be final and binding as the “Valuation Date Balance Sheet” and the Valuation Date Working Capital, respectively. (e) The parties set forth elsewhere in this Agreementhereto shall make available to Parent, Parent’s accountants, the Stockholder Representative, the Stockholder Representative’s accountants and, if applicable, the Accounting Firm such books, records and other information (including work papers) as any of the foregoing may reasonably request to prepare or review the Preliminary Accounting Report or any matters submitted to the Accounting Firm. The fees and expenses of Parent’s accountants shall be paid by Parent. The fees and expenses of the Stockholder Representative’s accountants shall be paid by the Stockholder Representative. The fees and expenses of the Accounting Firm hereunder shall be paid 50% by Parent and 50% by the Stockholder Representative on behalf of the Selling Parties, and the portion to be paid by the Stockholder Representative shall be paid from the Administrative Account.

Determination of Valuation Date Working Capital. (a) As promptly as practicable following the Closing Date (practicable, but not no later than 75 60 days after the Closing Effective Date), Buyer shallParent shall cause the Company to: (i) prepare, in accordance with the Agreed Accounting Principles, a balance sheet with respect to the Company as of the Valuation Date, which balance sheet shall reflect the Purchased Assets and the Assumed Liabilities Date (the “Preliminary Valuation Date Balance Sheet”); (ii) determine the Valuation Date Working Capital in accordance with the provisions of this Agreement (such Valuation Date Working Capital as determined by Buyer the Company being called referred to as the “Preliminary Valuation Date Working Capital”); and (iii) deliver to Seller the Representative the Preliminary Valuation Date Balance Sheet and a certificate setting forth calculation of the Preliminary Valuation Date Working Capital (the “Preliminary Accounting Report”). (b) Promptly following Following receipt of the Preliminary Accounting Report, Seller the Representative may review the same and, within 30 days after the date of such receiptreceipt (the “Notice Period”), may deliver to Buyer Parent a certificate (signed by its chief financial officer or its chief accounting officer) it setting forth its objections to the Preliminary Valuation Date Balance Sheet and the Preliminary Valuation Date Working Capital as set forth in the Preliminary Accounting Report, together with a summary of the reasons therefor and calculations which, in its view, are necessary to eliminate such objections. If Seller In the event the Representative does not so object within such 30-day periodthe Notice Period, the Preliminary Valuation Date Balance Sheet and the Preliminary Valuation Date Working Capital set forth in the Preliminary Accounting Report shall be final and binding as the “Valuation Date Balance Sheet” and the Valuation Date Working Capital, respectively, for purposes of this Agreement but shall not limit the representations, warranties, covenants and agreements of the parties set forth elsewhere in this Agreement. (c) In the event the Representative so objects within the Notice Period, Parent and the Representative shall use reasonable efforts to resolve by written agreement (the “Agreed Adjustments”) any differences as to the Preliminary Valuation Date Balance Sheet and the Preliminary Valuation Date Working Capital and, in the event Parent and the Representative so resolve any such differences, the Preliminary Valuation Date Balance Sheet and the Preliminary Valuation Date Working Capital set forth in the Preliminary Accounting Report as adjusted by the Agreed Adjustments shall be final and binding as the “Valuation Date Balance Sheet” and the Valuation Date Working Capital, respectively, for purposes of this Agreement but shall not limit the representations, warranties, covenants and agreements of the parties set forth elsewhere in this Agreement. (d) In the event any objections raised by the Representative are not resolved by Agreed Adjustments within the 30 day period next following the Notice Period, then Parent and the Representative shall submit the objections that are then unresolved to the Chicago office of Xxxxx Xxxxxx and Company LLC and such firm (the “Accounting Firm”) shall be directed by Parent and the Representative to resolve the unresolved objections (based solely on the presentations by Parent and by the Representative as to whether any disputed matter had been determined in a manner consistent with the Agreed Accounting Principles and this Agreement) as promptly as reasonably practicable and to deliver written notice to each of Parent and the Representative setting forth its resolution of the disputed matters. The Preliminary Valuation Date Balance Sheet and the Preliminary Valuation Date Working Capital, after giving effect to any Agreed Adjustments and to the resolution of disputed matters by the Accounting Firm, shall be final and binding as the “Valuation Date Balance Sheet” and the Valuation Date Working Capital, respectively, for purposes of this Agreement but shall not limit the representations, warranties, covenants and agreements of the parties set forth elsewhere in this Agreement. (e) The parties hereto shall make available to Parent, Parent’s accountants, the Representative, the Representative’s accountants and, if applicable, the Accounting Firm such books, records and other information (including work papers) as any of the foregoing may reasonably request to prepare or review the Preliminary Accounting Report or any matters submitted to the Accounting Firm. The fees and expenses of Parent’s accountants shall be paid by Parent. The fees and expenses of the Representative’s accountants shall be paid by the Representative. The fees and expenses of the Accounting Firm hereunder shall be paid 50% by Parent and 50% by the Representative.