Common use of Final Adjustment Amount Clause in Contracts

Final Adjustment Amount. (a) As promptly as practicable after the Closing Date (but in no event later than 75 days after the Closing Date), Acquirer shall prepare and deliver to Contributor a balance sheet of the Midstream Business as of 11:59 p.m. on the date immediately prior to the Closing Date, together with a written report of Xxxxx Xxxxxxxx LLP stating that such firm has examined such balance sheet and that such balance sheet has been prepared in accordance with this Agreement and in a manner consistent with, and using the same principles, policies and methods and practices used in, the preparation of the Financial Statements, except that it shall give effect to the Pre-Closing Transfer (the “Final Balance Sheet”), which shall set forth the components of Working Capital to enable Contributor and Acquirer to calculate the amount of Working Capital (“Closing Working Capital”) and the amount of Working Capital Surplus or Working Capital Deficiency, in each case, as of such time and date (“Closing Working Capital Surplus” or “Closing Working Capital Deficiency”, as the case may be). The Final Balance Sheet shall be prepared in accordance with this Agreement in a manner consistent with, and using the same principles, policies, methods and practices used in, the preparation of the Financial Statements, except that it shall give effect to the Pre-Closing Transfer. Following the delivery of the Final Balance Sheet to Contributor, Acquirer shall afford Contributor and its Representatives the opportunity to examine the Final Balance Sheet, and such supporting schedules, analyses, workpapers, including any audit workpapers, and other underlying records or documentation as are reasonably necessary and appropriate. Acquirer shall cooperate fully and promptly with Contributor and its Representatives in such examination, including providing answers to questions asked by Contributor and its Representatives, and Acquirer shall promptly make available to Contributor and its Representatives any records under the reasonable control of Acquirer that are requested by Contributor and its Representatives.

Final Adjustment Amount. (a) As promptly as practicable after the Closing Date (but in no event later than 75 60 days after the Closing Date), Acquirer Parent shall cause the Surviving Corporation to prepare and deliver to Contributor the Representative a balance sheet of the Midstream Business Company prepared as of 11:59 p.m. (Central time) on the date immediately prior to the Closing Date, together with a written report of Xxxxx Xxxxxxxx LLP stating that such firm has examined such balance sheet and that such balance sheet has been prepared in accordance with Date (except as otherwise contemplated by this Agreement and in a manner consistent with, and using the same principles, policies and methods and practices used in, the preparation of the Financial Statements, except that it shall give effect to the Pre-Closing Transfer Agreement) (the “Final Balance Sheet”), which shall set forth (i) the amount of Cash as of such time and date (“Closing Cash”), (ii) the amount of any Company Transaction Costs that were not paid prior to or identified to Parent for payment pursuant to Section 2.11(a)(iii) in connection with the Closing (the “Unpaid Company Transaction Costs”), and (iii) the components of Working Capital as of such time and date to enable Contributor Parent and Acquirer the Representative (on behalf of the Stockholders) to calculate the amount of Working Capital (“Closing Working Capital”) and the amount of Working Capital Surplus or Working Capital Deficiency, in each case, as of such time and date Deficiency (“Closing Working Capital Surplus” or “Closing Working Capital Deficiency”, as the case may be). The Final Balance Sheet shall be prepared in accordance with this Agreement applied in a manner consistent with, and using the same principles, policies, methods and practices used in, with the preparation of the Financial Statements, except that it shall give effect to the Pre-Closing TransferBalance Sheet. Following the delivery of the Final Balance Sheet to Contributorthe Representative, Acquirer Parent and the Surviving Corporation shall afford Contributor the Representative and its Representatives representatives the opportunity to examine the Final Balance Sheet, and such supporting schedules, analyses, workpapers, including any audit workpapers, and other underlying records or documentation as are reasonably necessary requested by the Representative or its representatives. Parent and appropriate. Acquirer the Surviving Corporation shall cooperate fully and promptly with Contributor the Representative and its Representatives representatives in such examination, including providing answers to questions asked by Contributor the Representative and its Representativesrepresentatives, and Acquirer Parent and the Surviving Corporation shall promptly make available to Contributor the Representative and its Representatives representatives any records under the reasonable control of Acquirer Parent or the Surviving Corporation that are requested by Contributor the Representative and its Representativesrepresentatives. (b) If within 30 days following delivery of the Final Balance Sheet to the Representative, the Representative has not delivered to Parent written notice (the “Objection Notice”) of its objections to the Final Balance Sheet (such Objection Notice must contain a statement describing in reasonable detail the basis of such objections), then Closing Cash, Unpaid Company Transaction Costs and Closing Working Capital Surplus or Closing Working Capital Deficiency, as applicable, as set forth in or derived from such Final Balance Sheet shall be deemed final and conclusive and shall be the “Final Cash,” “Final Unpaid Company Transaction Costs” and “Final Working Capital Surplus” or “Final Working Capital Deficiency,” respectively. If the Representative delivers the Objection Notice within such 30-day period, then Parent and the Representative shall endeavor in good faith to resolve the objections, for a period not to exceed 15 days from the date of delivery of the Objection Notice. If at the end of the 15-day period there are any objections that remain in dispute, then the remaining objections in dispute shall be submitted for resolution to a “big four” accounting firm to be selected jointly by the Representative and Parent within the following five days or, if the Representative and Parent are unable to mutually agree within such five-day period, such accounting firm shall be Deloitte & Touche LLP (such jointly selected accounting firm or Deloitte & Touche LLP, the “Referee”). Parent and the Representative will enter into reasonable and customary arrangements for the services to be rendered by the Referee under this Section 2.13(b). The Referee shall determine any unresolved items of Final Cash, Final Unpaid Company Transaction Costs and Final Working Capital Surplus or Final Working Capital Deficiency within 30 days after the objections that remain in dispute are submitted to it, and the Referee shall limit its review and determination to the unresolved items set forth in the Objection Notice. If any remaining objections are submitted to the Referee for resolution, (i) each party shall furnish to the Referee such workpapers and other documents and information relating to such objections as the Referee may request and are available to that party or its Subsidiaries (or its independent public accountants) and will be afforded the opportunity to present to the Referee any material relating to the determination of the matters in dispute and to discuss such determination with the Referee; (ii) to the extent that a value has been assigned by either party to any objection that remains in dispute, the Referee shall not assign a value to such objection that is greater than the greatest value for such objection claimed by either party or less than the smallest value for such objection claimed by either party; (iii) the determination by the Referee of the Final Balance Sheet and Final Cash, Final Unpaid Company Transaction Costs and Final Working Capital Surplus or Final Working Capital Deficiency, as set forth in a written notice delivered to both parties and the Escrow Agent by the Referee (the “Referee Report”), shall be made in accordance with this Agreement and will be binding and conclusive on the parties and will constitute an arbitral award that is final, binding and unappealable and upon which a judgment may be entered by a court having jurisdiction thereof; and (iv) 50% of the fees and expenses of the Referee shall be paid by Parent and the remaining 50% of the fees and expenses shall be paid by the Stockholders out of the Representative Holdback. (c) The Final Balance Sheet will become final, binding and conclusive upon Parent, the Company, the Representative and the Indemnifying Persons for all purposes of this Agreement, upon the earliest to occur of the following: (i) the mutual acceptance, in writing, by Parent and the Representative of the Final Balance Sheet, with such changes or adjustments thereto, if any, as may be proposed by the Representative and consented to by Parent; (ii) the expiration of 30 days after the delivery to the Representative of the Final Balance Sheet without delivery to Parent of an Objection Notice in accordance with Section 2.12(b); and (iii) the delivery to Parent and the Representative by the Referee of the Referee Report. (d) To the extent that the Final Adjustment Amount exceeds the Closing Adjustment Amount, such excess (the “Final Adjustment Surplus”) shall be paid by Parent to the Stockholders in accordance with Section 2.11(c) within five days after the determination of the Final Adjustment Amount. To the extent that the Final Adjustment Amount is less than the Closing Adjustment Amount, such deficiency (the “Final Adjustment Deficiency”) shall be distributed to Parent from the Escrow Account. Parent acknowledges and agrees that anything that is included in the calculation of any line item or that forms the basis for any accrual, reserve or other adjustment in the determination of the Final Adjustment Surplus or Final Adjustment Deficiency may not be used as, form the basis for or be used in connection with any claims for indemnification by any Parent Indemnified Person hereunder.

Final Adjustment Amount. (a) As promptly as practicable after the Closing Date (practicable, but in no any event later than 75 within 60 days after the Closing Date), Acquirer shall Parent will prepare and deliver to Contributor the Representative (i) a statement (the “Transaction Expense Statement”) indicating the total amount of Company Transaction Costs incurred by the Company and unpaid as of the Closing, (ii) the balance sheet of the Midstream Business Company at and as of 11:59 p.m. (Central Time) on the date immediately prior to the Closing Date, together with a written report of Xxxxx Xxxxxxxx LLP stating that such firm has examined such balance sheet and that such balance sheet has been prepared in accordance with this Agreement and in a manner consistent with, and using the same principles, policies and methods and practices used in, the preparation of the Financial Statements, except that it shall give effect to the Pre-Closing Transfer Date (the “Final Balance Sheet”), (iii) a calculation of the extent to which shall the Company’s Net Working Capital at Closing was less than $(4,041,980), (iv) a calculation of the amount (the “Adjustment Amount”) equal to the sum of all unpaid Indebtedness on the Closing Date, plus all Company Transaction Costs incurred by the Company and unpaid as of the Closing, plus an amount equal to the extent to which the Company’s Net Working Capital at Closing was less than $(4,041,980); and (v) a calculation of the amount equal to (A) the Closing Adjustment Amount minus (B) the Adjustment Amount (the “Final Adjustment Amount”). The Final Balance Sheet will be prepared in accordance with this Agreement, GAAP consistently applied in accordance with the Company’s past practice (subject to the absence of footnotes and normal, recurring audit adjustments), as if the parties hereto had not consummated the Merger and in accordance with the procedures used in preparing the Most Recent Balance Sheet, a sample of which is set forth in Schedule 2.14(b). Following the components delivery of Working Capital the Transaction Expense Statement, Final Balance Sheet and calculation of the Adjustment Amount to enable Contributor the Representative, Representative and Acquirer its representatives, including Representative’s independent accountants, will be entitled to calculate review the amount Final Balance Sheet, Transaction Expense Statement and Adjustment Amount and related supporting schedules, analyses and work papers, including the underlying records or documentation of Working Capital (“Closing Working Capital”) Parent and its representatives, including its independent accountants. Parent and the amount of Working Capital Surplus Interim Surviving Corporation or Working Capital Deficiency, in each case, as of such time and date (“Closing Working Capital Surplus” or “Closing Working Capital Deficiency”the Final Surviving Entity, as the case may be). The Final Balance Sheet , shall be prepared in accordance cooperate with this Agreement in a manner consistent with, and using the same principles, policies, methods and practices used in, the preparation of the Financial Statements, except that it shall give effect to the Pre-Closing Transfer. Following the delivery of the Final Balance Sheet to Contributor, Acquirer shall afford Contributor Representative and its Representatives the opportunity to examine the Final Balance Sheet, and such supporting schedules, analyses, workpapers, including any audit workpapers, and other underlying records or documentation as are reasonably necessary and appropriate. Acquirer shall cooperate fully and promptly with Contributor and its Representatives representatives in such examination, including providing answers to questions asked by Contributor the Representative and its Representativesrepresentatives, and Acquirer Parent and the Interim Surviving Corporation or the Final Surviving Entity, as the case may be, shall promptly make available to Contributor the Representative and its Representatives representatives any records under the reasonable control of Acquirer Parent or its representatives, including its independent accountants, that are reasonably requested by Contributor the Representative and its Representativesrepresentatives. (b) If within 60 days following delivery of the Final Balance Sheet to the Representative, the Representative has not delivered to Parent written notice (the “Balance Sheet Objection Notice”) of its objections to the Final Balance Sheet, Transaction Expense Statement and calculation of the Final Adjustment Amount (such Balance Sheet Objection Notice must contain a statement describing in reasonable detail the basis of such objections), then the Final Balance Sheet, Transaction Expense Statement and calculation of the Final Adjustment Amount shall be deemed final and conclusive. If the Representative delivers the Balance Sheet Objection Notice within such 60-day period, then Parent and the Representative shall endeavor in good faith to resolve the objections, for a period not to exceed 15 days from the date of delivery of the Balance Sheet Objection Notice. If at the end of the 15-day period there are any objections that remain in dispute, then the remaining objections in dispute shall be submitted for resolution to an independent referee (the “Referee”). The Referee shall be chosen by mutual agreement of Parent and Representative within 10 days of such designation. If Parent and Representative cannot agree on a Referee, then Parent and Representative shall each choose a referee, and the Referees chosen by Parent and Representative shall mutually agree on the third Referee. The Referee(s) shall determine any unresolved items within 30 days after the objections that remain in dispute are submitted to it. If any remaining objections are submitted to the Referee(s) for resolution, (i) each party shall furnish to the Referee(s) such work papers and other documents and information relating to such objections as the Referee(s) may request and are available to that party or its subsidiaries (or its independent public accountants) and will be afforded the opportunity to present to the Referee(s) any material relating to the determination of the matters in dispute and to discuss such determination with the Referee(s); (ii) to the extent that a value has been assigned to any objection that remains in dispute, the Referee(s) shall not assign a value to such objection that is greater than the greatest value for such objection claimed by either party or less than the smallest value for such objection claimed by either party; (iii) the determination by the Referee(s) as set forth in a written notice delivered to the Representative and Parent by the Referee(s), shall be made in accordance with this Agreement and shall be binding and conclusive on the parties hereto and shall constitute an arbitral award that is final, binding and unappealable and upon which a judgment may be entered by a court having jurisdiction thereof; and (iv) the fees and expenses of the Referee(s) shall be paid by the party whose aggregate claimed value of matters submitted to the Referee(s) for resolution is furthest from the final aggregate value for such matters determined by the Referee(s). (c) To the extent that the Final Adjustment Amount is a negative number, the Equityholders will pay Parent the amount of the Final Adjustment Amount or in Parent’s sole discretion the Final Adjustment Amount will be distributed to Parent by the Escrow Agent from the Escrow Amount promptly upon delivery of notice to the Escrow Agent of either (i) mutual written instructions of the Parent and Representative authorizing the Escrow Agent to disburse such Final Adjustment Amount , or (ii) the Referee’s final determination as certified as true and correct by such Referee of such Final Adjustment Amount. To the extent permitted under Applicable Law, the parties hereto will treat any payment to Parent under this Section 2.15 as an adjustment to the Total Merger Consideration.

Final Adjustment Amount. The Parties hereby covenant and agree as provided in this Section 3.2 and Sections 3.3 and 3.4 with respect to the adjustment of the Purchase Price following the Closing: (a) As promptly as practicable after the Closing Date (but in no event later than 75 90 days after the Closing Date), Acquirer Buyer shall cause the Company to prepare and deliver to Contributor the Sellers’ Representative a balance sheet of the Midstream Business Company and its Subsidiaries prepared as of 11:59 p.m. on the date immediately prior to preceding the Closing Date, together with a written report of Xxxxx Xxxxxxxx LLP stating that such firm has examined such balance sheet and that such balance sheet has been prepared in accordance with this Agreement and in a manner consistent with, and using the same principles, policies and methods and practices used in, the preparation of the Financial Statements, except that it shall give effect to the Pre-Closing Transfer Date (the “Final Balance Sheet”), and a statement (the “Post-Closing Statement”) which shall set forth in reasonable detail and specificity its calculation of the components of following: (i) the Purchase Price, (ii) the CapEx Expenditures/Payments, (iii) the Closing Cash, if any, (iv) the Closing Debt, if any, (v) the Unpaid Company Transaction Costs, if any, (vi) the Net Working Capital to enable Contributor and Acquirer to calculate based on the amount of Working Capital Final Balance Sheet (the “Closing Final Net Working Capital”), and (vii) and the amount of Working Capital Surplus or Working Capital DeficiencyCapEx Double Count Adjustment, in each case, as of such time and date (“Closing Working Capital Surplus” or “Closing Working Capital Deficiency”, as the case may be)if any. The Final Balance Sheet shall be prepared in accordance with this Agreement GAAP and, to the extent consistent with GAAP, using the same accounting methods, policies, practices, principles and procedures with consistent classifications, judgments and methodologies as were used in connection with preparing the Interim Balance Sheet, shall include all accounting entries and adjustments required in a year end closing of the books. The Post-Closing Statement will be prepared based upon the information set forth in the Final Balance Sheet and in a manner consistent with, and using the same principles, policies, methods and practices used in, with the preparation of the Financial Statements, except that it shall give effect to the Pre-Closing Transfer. Adjustment Purchase Price Statement. (b) Following the delivery of the Final Balance Sheet to Contributorthe Sellers’ Representative, Acquirer Buyer and the Company shall afford Contributor provide the Sellers’ Representative and its Representatives designees reasonable access during normal business hours to all personnel, materials, books and records of the opportunity to examine the Final Balance SheetCompany, and including such supporting schedules, analyses, workpapers, including any audit workpapers, and other underlying records or documentation as are reasonably necessary and appropriateappropriate for the Sellers’ Representative to verify the Final Balance Sheet, the Post-Closing Statement and the amount of the Final Net Working Capital. Acquirer Buyer and the Company shall reasonably cooperate fully and promptly with Contributor the Sellers’ Representative and its Representatives designees in such examination, including providing answers to questions asked by Contributor and the Sellers’ Representative or its Representativesdesignees, and Acquirer Buyer and the Company shall promptly make available to Contributor the Sellers’ Representative and its Representatives designees any records under the reasonable control of Acquirer that are requested by Contributor the Sellers’ Representative and its Representativesdesignees as promptly as practicable. (c) The calculation of the Final Balance Sheet, the Post-Closing Statement and the amount of the Final Net Working Capital submitted by Buyer to the Sellers’ Representative shall become final and binding upon the Parties 30 days following the Sellers’ Representative’s receipt thereof (the “Review Period”), unless the Sellers’ Representative, within the Review Period, has delivered to Buyer written notice (the “Objection Notice”) of its objections with reasonable detail and specificity to the Final Balance Sheet, the Post-Closing Statement or the amount of the Final Net Working Capital, in which case the Final Balance Sheet, the Post-Closing Statement and the amount of the Final Net Working Capital shall not be binding upon the Parties and such dispute shall be resolved pursuant to Section 3.2(d); provided, however, that any item or amount contained in the Final Balance Sheet, the Post-Closing Statement or the calculation of the Final Working Capital that is not a Disputed Item (as defined below) shall be binding upon the Parties. (d) After the receipt of the Objection Notice by Buyer, the Sellers’ Representative and Buyer shall meet by telephone, or at a mutually agreeable location, to discuss and attempt to reconcile their differences with respect to the disputed items set forth in the Objection Notice (the “Disputed Items”). If the Sellers’ Representative and Buyer are unable to mutually resolve each of the Disputed Items within 15 days after receipt of the Objection Notice by Buyer, then no later than the second Business Day after the expiration of such 15 day period the Sellers’ Representative and Buyer shall each propose to the other at least one nationally recognized accounting firm that does not have an existing relationship with Buyer or Sellers’ Representative, as applicable, and Buyer and the Sellers’ Representative shall attempt to agree on one such mutually acceptable nationally recognized accounting firm (an “Accounting Firm”) to be engaged to resolve such Disputed Items that remain in dispute following such 15 day period for resolution; provided, however, if the Sellers’ Representative and Buyer have not agreed upon an Accounting Firm within seven days after either party first proposes an Accounting Firm for such Disputed Items, one Accounting Firm shall be chosen by each of the Sellers’ Representative and Buyer and the two Accounting Firms so chosen will finally select an Accounting Firm to resolve such Disputed Items (such Accounting Firm, as finally selected pursuant to the foregoing procedures, the “Independent Accountant”). The Independent Accountant: (i) will be jointly engaged by Buyer and the Sellers’ Representative; (ii) will be provided, within three Business Days of accepting the engagement, with a definitive written statement from the Sellers’ Representative and Buyer of their respective positions with respect to the unresolved Disputed Item(s); (iii) will be advised in the engagement letter that the Parties accept the Independent Accountant as the appropriate Person to interpret this ARTICLE III for all purposes relevant to the resolution of the unresolved Disputed Item(s); (iv) will be granted reasonable access during normal business hours to all materials, books and records and personnel of the Company; and (v) will have 30 days to carry out a review, interview Buyer’s representatives and the Sellers’ Representative and prepare a written statement of its decision regarding the unresolved Disputed Item(s) and its determination of the Final Net Working Capital, the CapEx Expenditures/Payments, the Closing Cash, the Closing Debt, the Unpaid Company Transaction Costs, and the CapEx Double Count Adjustment, as the case may be, based upon its decision regarding such Disputed Item(s). For the avoidance of doubt, the Independent Accountant shall not be requested to, nor shall the Independent Accountant make any determination, with respect to any item reflected in the Final Balance Sheet or the Post-Closing Statement that is not a Disputed Item submitted to the Independent Accountant in accordance with this Section 3.2(d) (which includes any Disputed Item that is resolved during the 15 day period following Buyer’s receipt of the Objection Notice). The Sellers’ Representative and Buyer will each be provided the opportunity to present to the Independent Accountant any material such Party deems relevant to the determination. In resolving any unresolved Disputed Item, the Independent Accountant may not assign a value to any item greater than the highest value for such item claimed by either Party or less than the lowest value for such item claimed by either Party. The decision of the Independent Accountant shall be final and binding upon the Parties and shall be in substitution for and precludes the bringing of any Proceedings in any court in connection with the resolution of any Disputed Item(s) under this Section 3.2(d). The fees and expenses of the Independent Accountant incurred in resolving the Disputed Items(s) shall be shared equally by Buyer, on the one hand, and the Sellers, on the other hand, in accordance with each Seller’s Pro Rata Percentage.

Final Adjustment Amount. The parties hereby covenant and agree as provided in this Section 3.02 and Sections 3.03 and 3.04 with respect to the adjustment and payment of the Purchase Price following the Closing: (a) As promptly as practicable after the Closing Date (but in no event later than 75 60 days after the Closing Date), Acquirer Seller shall prepare and deliver to Contributor Buyer a statement (the “Post-Closing Statement”), which shall contain the balance sheet of the Midstream Business Company prepared as of 11:59 p.m. on the date immediately prior to the Closing Date, together with a written report of Xxxxx Xxxxxxxx LLP stating that such firm has examined such balance sheet and that such balance sheet has been prepared in accordance with this Agreement and in a manner consistent with, and using the same principles, policies and methods and practices used in, the preparation of the Financial Statements, except that it shall give effect to the Pre-Closing Transfer Date (the “Final Balance Sheet”), which shall ) and set forth in reasonable detail its calculation of the components of following: (i) the Post-Adjustment Purchase Price, (ii) the Closing Cash, (iii) the Closing Debt, if any, and (iv) the Net Working Capital to enable Contributor and Acquirer to calculate based on the amount of Working Capital Final Balance Sheet (the “Closing Final Net Working Capital”) and the amount of Final Net Working Capital Surplus or Working Capital DeficiencyAdjustment, in each case, as of such time and date (“Closing Working Capital Surplus” or “Closing Working Capital Deficiency”, as the case may be). The Final Balance Sheet which shall be prepared in accordance with this Agreement in a manner consistent with, and GAAP using the same principlesaccounting methods, policies, methods practices, principles and practices procedures with consistent classifications, judgments and methodologies that were used in, in the preparation of the Annual Financial StatementsStatements for the most recent fiscal year, except that it shall give effect to the Preand as if such statement was being prepared as of a fiscal year end. The Post-Closing Transfer. Following Statement shall be prepared based upon the delivery of information set forth in the Final Balance Sheet to Contributorand consistent with the calculation of the Net Working Capital set forth in Exhibit C. (b) Buyer shall, Acquirer and shall afford Contributor and cause each Company Group Entity to, provide Seller or its Representatives the opportunity reasonable access to examine the Final Balance Sheetall personnel, materials, Books and Records and other books and records of each Company Group Entity, including such supporting schedules, analyses, workpapers, including any audit workpapers, work papers and other underlying records or documentation as are reasonably necessary and appropriateappropriate for Seller to prepare the Final Balance Sheet, the Post-Closing Statement and the amount of the Final Net Working Capital. Acquirer Buyer shall, and shall cause each Company Group Entity to, cooperate fully and promptly with Contributor Seller and its Representatives in such examinationpreparation, including providing answers to questions asked by Contributor and Seller or its Representatives, and Acquirer Buyer shall, and shall cause each Company Group Entity to, promptly make available to Seller and its Representatives any records that are reasonably requested by Seller or its Representatives. Similarly, Seller shall provide Buyer or its Representatives reasonable access to all personnel, materials, Books and Records, including such supporting schedules, analyses, work papers and other underlying records or documentation as are reasonably necessary and appropriate for Buyer or its Representatives to review and analyze the Final Balance Sheet, the Post-Closing Statement and the amount of the Final Net Working Capital. Seller shall promptly make available to Contributor Buyer and its Representatives any records under the reasonable control of Acquirer that are reasonably requested by Contributor and Buyer or its Representatives. (c) The Final Balance Sheet and the Post-Closing Statement submitted by Seller to Buyer shall become final and binding upon the parties 30 days following Buyer’s receipt thereof (the “Review Period”), unless Buyer, within the Review Period, has delivered to Seller written notice (the “Objection Notice”) of its objections to the Final Balance Sheet and the Post-Closing Statement, in which case the Final Balance Sheet and the Post-Closing Statement shall not be binding upon the parties and such dispute shall be resolved pursuant to Section 3.02(d). (d) After the receipt of the Objection Notice by Seller, Seller and Buyer shall meet by telephone, or at a mutually agreeable location, to discuss and attempt to reconcile their differences with respect to the disputed items set forth in the Objection Notice (the “Disputed Items”). If Seller and Buyer are unable to mutually resolve each of the Disputed Items within 30 days after receipt of the Objection Notice by Seller or by any mutually agreed extension thereof, then either Seller or Buyer may submit such Disputed Items for resolution to the Houston, Texas office of Deloitte & Touche (the “Arbiter”), which will be engaged to resolve such Disputed Items. If such accounting firm is unwilling to accept the engagement as the Arbiter, then another mutually agreed nationally or regionally recognized accounting firm that does not have an existing relationship with Buyer or Seller will be engaged to act as the Arbiter. The Arbiter will: (i) be jointly engaged by Buyer and Seller; (ii) be provided, within five Business Days of accepting the engagement, with a definitive written statement from Seller and Buyer of their respective positions with respect to the unresolved Disputed Item(s); (iii) be advised in the engagement letter that the parties accept the Arbiter as the appropriate Person to interpret this Article III for all purposes relevant to the resolution of the unresolved Disputed Item(s); (iv) be granted access to all materials, Books and Records and personnel of each Company Group Entity, Buyer and Seller; and (v) have 60 days to carry out a review, interview Buyer and Seller and prepare a written statement of its decision regarding the unresolved Disputed Item(s) and its determination of the Purchase Price, the Final Net Working Capital, the Final Net Working Capital Adjustment, the Closing Cash and the Closing Debt, as the case may be, based upon its decision regarding such Disputed Item(s). For the avoidance of doubt, the Arbiter shall not be requested to, nor shall the Arbiter, make any determination with respect to any item reflected in the Final Balance Sheet or the Post-Closing Statement that is not a Disputed Item submitted to the Arbiter in accordance with this Section 3.02(d). Seller and Buyer will each be provided the opportunity to present to the Arbiter any material such party deems relevant to the Arbiter’s determination. The decision of the Arbiter shall be final and binding upon the parties and shall be in substitution of, and precludes the bringing of, any actions in any court in connection with the resolution of any Disputed Item(s) under this Section 3.02(d). The fees and expenses of the Arbiter incurred in resolving the Disputed Items(s) (the “Arbiter Fees”) shall be paid 50/50 by Buyer and Seller prior to delivery of the Arbiter’s decision then will be reapportioned between Buyer and Seller based on the aggregate dollar amount of the amount in dispute and inversely related to the relative result of the Seller and Buyer’s disputed claims as determined by the Arbiter. For example, if the aggregate dollar amount in dispute is $1,000,000 and the relative result of Seller and Buyer’s disputed claims as determined by the Arbiter is $900,000 and $100,000, respectively, then Buyer will be apportioned responsibility for 90% of the Arbiter Fees and Seller will be apportioned responsibility for 10% of the Arbiter Fees.

Final Adjustment Amount. (a) As promptly as practicable after the Closing Date (but in no event later than 75 sixty (60) days after the Closing Date), Acquirer Parent shall cause the Company to prepare and deliver to Contributor the Representative a balance sheet of the Midstream Business Company as of 11:59 p.m. on the date immediately prior to the Closing Date, together with a written report of Xxxxx Xxxxxxxx LLP stating that such firm has examined such balance sheet and that such balance sheet has been prepared in accordance with this Agreement and in a manner consistent with, and using the same principles, policies and methods and practices used in, the preparation of the Financial Statements, except that it shall give effect to the Pre-Closing Transfer Date (the “Final Balance Sheet”), which shall set forth the components of Working Capital to enable Contributor and Acquirer to calculate following: (i) the amount of Cash (“Closing Cash”) and Debt (“Closing Debt”) and (ii) the components of Working Capital (“Closing Working Capital”) and the amount of Working Capital Surplus or Working Capital Deficiency, in each case, as of such time and date (“Closing Working Capital Surplus” or “Closing Working Capital Deficiency”, as the case may be). The Final Balance Sheet shall be prepared in accordance with this Agreement and GAAP applied in a manner consistent with, and using the same principles, policies, methods and practices used in, with the preparation of the Audited 2005 Financial Statements, except that it shall give effect to the Pre-Closing Transfer. Following the delivery of the Final Balance Sheet to Contributorthe Representative, Acquirer Parent and the Surviving Corporation shall afford Contributor the Representative and its Representatives representatives the opportunity to examine the Final Balance Sheet, and such supporting schedules, analyses, workpapers, including any audit workpapers, and other underlying records or documentation as are reasonably necessary and appropriate. Acquirer Parent and the Surviving Corporation shall cooperate fully and promptly with Contributor the Representative and its Representatives representatives in such examination, including providing answers to questions asked by Contributor the Representative and its Representativesrepresentatives, and Acquirer Parent and the Surviving Corporation shall promptly make available to Contributor the Representative and its Representatives representatives any records under the their reasonable control of Acquirer that are requested by Contributor the Representative and its Representativesrepresentatives. (b) If within sixty (60) days following delivery of the Final Balance Sheet to the Representative, the Representative has not delivered to Parent written notice (the “Objection Notice”) of its objections to the Final Balance Sheet (such Objection Notice must contain a statement describing the basis of such objections), then Closing Cash, Closing Debt and Closing Working Capital, as applicable, as set forth in or derived from such Final Balance Sheet shall be deemed final and conclusive and shall be “Final Cash,” “Final Debt” and “Final Working Capital,” respectively. If the Representative delivers the Objection Notice within such sixty (60)-day period, then Parent and the Representative shall endeavor in good faith to resolve the objections, for a period not to exceed fifteen (15) days from the date of delivery of the Objection Notice. If at the end of the fifteen (15)-day period there are any objections that remain in dispute, then the remaining objections in dispute shall be submitted for resolution to a nationally known independent accounting firm to be selected jointly by the Representative and Parent within the following five (5) days or, if the Representative and Parent are unable to mutually agree within such five (5)-day period, such accounting firm shall be PricewaterhouseCoopers (such jointly selected accounting firm or PricewaterhouseCoopers, the “Referee”). The Referee shall determine any unresolved items of Final Cash, Final Debt and Final Working Capital within thirty (30) days after the objections that remain in dispute are submitted to it. If any remaining objections are submitted to the Referee for resolution, (i) each party shall furnish to the Referee such workpapers and other documents and information relating to such objections as the Referee may request and are available to that party or its Subsidiaries (or its independent public accountants) and will be afforded the opportunity to present to the Referee any material relating to the determination of the matters in dispute and to discuss such determination with the Referee; (ii) to the extent that a value has been assigned to any objection that remains in dispute, the Referee shall not assign a value to such objection that is greater than the greatest value for such objection claimed by either party or less than the smallest value for such objection claimed by either party; (iii) the determination by the Referee of Final Cash, Final Debt and Final Working Capital, as set forth in a written notice delivered to both parties and the Escrow Agent by the Referee, shall be made in accordance with this Agreement and shall be binding and conclusive on the parties and shall constitute an arbitral award that is final, binding and unappealable and upon which a judgment may be entered by a court having jurisdiction thereof; and (iv) fifty percent (50%) of the fees and expenses of the Referee shall be paid by the Parent and the remaining fifty percent (50%) of the fees and expenses of the Referee shall be paid by the Representative out of the Representative Holdback.

Final Adjustment Amount. (a) As promptly as practicable after the Closing Date (but in no event No later than 75 ninety (90) days after the Closing Date), Acquirer Parent shall cause the Surviving Corporation to prepare and deliver to Contributor the Representative a consolidated balance sheet of the Midstream Business Company and its Subsidiaries prepared as of 11:59 p.m. on the date immediately last Business Day prior to the Closing Date, together with a written report of Xxxxx Xxxxxxxx LLP stating that such firm has examined such balance sheet and that such balance sheet has been prepared in accordance with Date (except as otherwise contemplated by this Agreement and in a manner consistent with, and using the same principles, policies and methods and practices used in, the preparation of the Financial Statements, except that it shall give effect to the Pre-Closing Transfer Agreement) (the “Final Closing Balance Sheet”), which shall set forth the following: (i) the amount of Cash (“Closing Cash”), (ii) the amount of Debt (“Closing Debt”), (iii) the components of Working Capital to enable Contributor Parent and Acquirer the Representative (on behalf of the Securityholders) to calculate the amount of Working Capital (“Closing Working Capital”) and the amount of Working Capital Surplus or Working Capital Deficiency, in each case, as of such time and date Deficiency (“Closing Working Capital Surplus” or “Closing Working Capital Deficiency”, ,” as the case may be), and (iv) the Company Transaction Costs that were not Paid Company Transaction Costs (the “Closing Company Transaction Costs”) in each case, as of such time and date. The Final Closing Balance Sheet shall be prepared in accordance with this Agreement and GAAP in a manner consistent with, and using the same principles, policies, methods and practices used in, the preparation of the Financial Statements; provided that in the event of a conflict between GAAP and the preparation of the Financial Statement, except that it GAAP shall give effect to the Pre-Closing Transferprevail. Following the delivery of the Final Closing Balance Sheet to Contributorthe Representative, Acquirer Parent and the Surviving Corporation shall afford Contributor the Representative and its Representatives representatives the opportunity to examine the Final Closing Balance Sheet, and such supporting schedules, analyses, workpapers, including any audit workpapers, analyses and other underlying records or documentation as are reasonably necessary and appropriate. Acquirer Parent and the Surviving Corporation shall reasonably cooperate fully and promptly with Contributor the Representative and its Representatives representatives in such examination, including providing answers to questions asked by Contributor the Representative and its Representativesrepresentatives, and Acquirer Parent and the Surviving Corporation shall promptly make available to Contributor the Representative and its Representatives representatives any records under the reasonable control of Acquirer that are reasonably requested by Contributor the Representative and its Representativesrepresentatives.

Final Adjustment Amount. (a) As promptly as practicable after the Closing Date (practicable, but in no any event later than 75 within 60 days after the Closing Date), Acquirer shall Parent will prepare and deliver to Contributor the Representative (i) a statement (the “Transaction Expense Statement”) indicating the total amount of Company Transaction Costs incurred by the Company and unpaid as of the Closing, (ii) the balance sheet of the Midstream Business Company at and as of 11:59 p.m. (Pacific Time) on the date immediately prior to the Closing Date, together with a written report of Xxxxx Xxxxxxxx LLP stating that such firm has examined such balance sheet and that such balance sheet has been prepared in accordance with this Agreement and in a manner consistent with, and using the same principles, policies and methods and practices used in, the preparation of the Financial Statements, except that it shall give effect to the Pre-Closing Transfer Date (the “Final Balance Sheet”), (iii) a calculation of the extent to which shall set forth the components of Company’s Net Working Capital to enable Contributor at Closing was less than $3,200,000, and Acquirer to calculate (iv) a calculation of the amount (the “Adjustment Amount”) equal to the sum of all unpaid Specified Debt on the Closing Date, plus all Company Transaction Costs incurred by the Company and unpaid as of the Closing, plus an amount equal to the extent to which the Company’s Net Working Capital (“at Closing Working Capital”) and the amount of Working Capital Surplus or Working Capital Deficiency, in each case, as of such time and date (“Closing Working Capital Surplus” or “Closing Working Capital Deficiency”, as the case may be)was less $3,200,000. The Final Balance Sheet shall will be prepared in accordance with this Agreement Agreement, GAAP consistently applied in a manner consistent withaccordance with the Company’s past practice, as if the parties had not consummated the Merger; provided, however, that the assets, liabilities, gains, losses, revenues and using expenses for this interim period shall be determined, for the same principles, policies, methods and practices used in, the preparation purposes of the Financial StatementsFinal Balance Sheet, except that it shall give effect to through full application of the Pre-Closing Transferprocedures used in preparing the Most Recent Balance Sheet, a sample of which is set forth in Schedule 2.13(b). Following the delivery of the Transaction Expense Statement, Final Balance Sheet and calculation of the Adjustment Amount and the Final Adjustment Amount to Contributorthe Representative, Acquirer shall afford Contributor Representative and its Representatives the opportunity representatives, including Representative’s independent accountants, will be entitled to examine review the Final Balance Sheet, Sheet and such related supporting schedules, analyses, workpapersanalyses and work papers, including any audit workpapers, and other the underlying records or documentation as are reasonably necessary of the Parent and appropriateits representatives, including its independent accountants. Acquirer Parent and the Surviving Corporation shall cooperate fully and promptly with Contributor the Representative and its Representatives representatives in such examination, including providing answers to questions asked by Contributor the Representative and its Representativesrepresentatives, and Acquirer Parent and the Surviving Corporation shall promptly make available to Contributor the Representative and its Representatives representatives any records under the reasonable control of Acquirer Parent or its representatives, including its independent accountants, that are reasonably requested by Contributor the Representative and its Representativesrepresentatives. (b) If within 60 days following delivery of the Final Balance Sheet to the Representative, the Representative has not delivered to Parent written notice (the “Balance Sheet Objection Notice”) of its objections to the Final Balance Sheet, Transaction Expense Statement and calculation of the Final Adjustment Amount (such Balance Sheet Objection Notice must contain a statement describing in reasonable detail the basis of such objections), then the Final Balance Sheet, Transaction Expense Statement and calculation of the Final Adjustment Amount shall be deemed final and conclusive. If the Representative delivers the Balance Sheet Objection Notice within such 60-day period, then Parent and the Representative shall endeavor in good faith to resolve the objections, for a period not to exceed 15 days from the date of delivery of the Balance Sheet Objection Notice. If at the end of the 15-day period there are any objections that remain in dispute, then the remaining objections in dispute shall be submitted for resolution to an independent referee (the “Referee”). The Referee shall be chosen by mutual agreement of Parent and Representative within 10 days of such designation. If Parent and Representative cannot agree on a Referee, then Parent and Representative shall each choose a referee, and the Referees chosen by Parent and Representative shall mutually agree on the third Referee. The Referee(s) shall determine any unresolved items within 30 days after the objections that remain in dispute are submitted to it. If any remaining objections are submitted to the Referee(s) for resolution, (i) each party shall furnish to the Referee(s) such work papers and other documents and information relating to such objections as the Referee(s) may request and are available to that party or its Subsidiaries (or its independent public accountants) and will be afforded the opportunity to present to the Referee(s) any material relating to the determination of the matters in dispute and to discuss such determination with the Referee(s); (ii) to the extent that a value has been assigned to any objection that remains in dispute, the Referee(s) shall not assign a value to such objection that is greater than the greatest value for such objection claimed by either party or less than the smallest value for such objection claimed by either party; (iii) the determination by the Referee(s) as set forth in a written notice delivered to both parties by the Referee(s), shall be made in accordance with this Agreement and shall be binding and conclusive on the parties and shall constitute an arbitral award that is final, binding and unappealable and upon which a judgment may be entered by a court having jurisdiction thereof; and (iv) the fees and expenses of the Referee(s) shall be paid by the party whose aggregate claimed value of matters submitted to the Referee(s) for resolution is furthest from the final aggregate value for such matters determined by the Referee(s). (c) As used in this Agreement, the “Final Adjustment Amount” means an amount equal to (i) the Closing Adjustment Amount, minus (ii) the Adjustment Amount. To the extent that the Final Adjustment Amount is a positive number, Parent will pay to the Stockholders an aggregate amount equal to the Final Adjustment Amount. To the extent that the Final Adjustment Amount is a negative number, the Stockholders will pay Parent the amount of the Final Adjustment Amount or in Parent’s sole discretion the Final Adjustment Amount will be distributed to Parent by the Escrow Agent from the Escrow Amount promptly upon delivery of notice to the Escrow Agent of such Final Adjustment Amount. To the extent permitted under Applicable Law, the parties will treat (and will cause each of their respective Affiliates to treat) any payment under this Section 2.14 as an adjustment to the Total Merger Consideration. Any payment required to be made by Parent pursuant to this Section 2.14(c) shall be made by wire transfer of immediately available funds, not more than ten Business Days after final determination thereof, to an account to be designated by Stockholders at least two Business Days prior to the due date.

Final Adjustment Amount. (a) As promptly as practicable after the Closing Date (practicable, but in no any event later than 75 within 90 days after the Closing Date), Acquirer shall Parent will prepare and deliver to Contributor the Representative a balance sheet of the Midstream Business Company at and as of 11:59 p.m. (Central Time) on the date immediately prior to hereof (the Closing Date, together with “Final Balance Sheet”) and a written report calculation of Xxxxx Xxxxxxxx LLP stating that such firm has examined such balance sheet and that such balance sheet has been the Net Working Capital as derived from the Final Balance Sheet. The Final Balance Sheet will be prepared in accordance with this Agreement and in a manner consistent with, and using the same principles, policies and methods and practices used in, the preparation of the Financial Statements, except that it shall give effect to the Pre-Closing Transfer (the “Final Balance Sheet”), which shall set forth the components of Working Capital to enable Contributor and Acquirer to calculate the amount of Working Capital (“Closing Working Capital”) and the amount of Working Capital Surplus or Working Capital Deficiency, in each case, as of such time and date (“Closing Working Capital Surplus” or “Closing Working Capital Deficiency”, as the case may be). The Final Balance Sheet shall be prepared in accordance with this Agreement in a manner consistent with, and using the same principles, policies, methods and practices used in, the preparation of the Financial Statements, except that it shall give effect to the Pre-Closing TransferCompany’s historic past practice. Following the delivery of the Final Balance Sheet to Contributorthe Representative, Acquirer shall Parent and the Surviving Corporation will afford Contributor the Representative and its Representatives the representatives an opportunity to examine the Final Balance Sheet, Sheet and such supporting schedules, analyses, workpapers, including any audit workpapers, schedules and other underlying records or documentation analyses as are reasonably necessary and appropriateappropriate to evaluate the Final Balance Sheet. Acquirer Parent and the Surviving Corporation shall use commercially reasonable efforts to cooperate fully and promptly with Contributor the Representative and its Representatives representatives in such examination. (b) If within 30 days following delivery of the Final Balance Sheet to the Representative, including providing answers the Representative has not delivered to questions asked by Contributor Parent written notice (the “Objection Notice”) of its objections to the Final Balance Sheet (such Objection Notice must contain a statement describing in reasonable detail the basis of such objections), then the Final Balance Sheet shall be deemed final and its Representativesconclusive. If the Representative delivers the Objection Notice within such 30-day period, then Parent and the Representative shall endeavor in good faith to resolve the objections, for a period not to exceed 15 days from the date of delivery of the Objection Notice. If at the end of such 15-day period there are any objections that remain in dispute, then the remaining objections in dispute shall be submitted for resolution to a Person mutually acceptable to the Representative and Parent (the “Referee”). The Referee shall determine any unresolved items within 30 days after the objections that remain in dispute are submitted to it, and Acquirer Parent and the Representative shall promptly make use their commercially reasonable efforts to cooperate with any investigations of the Referee. If any remaining objections are submitted to the Referee for resolution, (i) each party shall furnish to the Referee such work papers and other documents and information relating to such objections as the Referee may request and are available to Contributor that party or its Subsidiaries (or its independent public accountants) and its Representatives will be afforded the opportunity to present to the Referee any records material relating to the determination of the matters in dispute and to discuss such determination with the Referee; (ii) to the extent that a value has been assigned to any objection that remains in dispute, the Referee shall not assign a value to such objection that is greater than the greatest value for such objection claimed by either party or less than the smallest value for such objection claimed by either party; (iii) the determination by the Referee as set forth in a written notice delivered to both parties by the Referee, shall be made in accordance with this Agreement and shall be binding and conclusive on the parties and shall constitute an arbitral award that is final, binding and unappealable and upon which a judgment may be entered by a court having jurisdiction thereof; and (iv) the fees and expenses of the Referee shall be paid by the party whose aggregate claimed value of matters submitted to the Referee for resolution is furthest from the final aggregate value for such matters determined by the Referee. (c) As used in this Agreement, the “Final Adjustment Amount” means an amount equal to (i) the positive number, if any, resulting from the following calculation: (a) the Historical Net Working Capital minus (b) the Net Working Capital as derived from the Final Balance Sheet or (ii) zero, if the calculation set forth in clause (i) of this sentence does not result in a positive number. To the extent that the Final Adjustment Amount is less than the Closing Adjustment Amount, Parent will pay to the Representative for the benefit of the Shareholders, within ten (10) Business Days of the final determination of the Final Adjustment Amount, an amount equal to (a) the Closing Adjustment Amount minus (b) the Final Adjustment Amount. To the extent that the Final Adjustment Amount is greater than the Closing Adjustment Amount, an amount equal to (a) the Final Adjustment Amount minus (b) the Closing Adjustment Amount (such difference, the “Adjustment Amount Difference”), will be paid to Parent by the Escrow Agent from the Escrow Account in accordance with the terms of the Escrow Agreement. To the extent permitted under Applicable Laws, the reasonable control parties will treat (and will cause each of Acquirer that are requested by Contributor and its Representativestheir respective Affiliates to treat) any payment under this Section 2.15(c) as an adjustment to the Merger Consideration for Tax purposes.