Common use of Final Calculations Clause in Contracts

Final Calculations. (i) No later than May 3, 2017, Buyer shall prepare and deliver to the Representative a statement setting forth Buyer’s good faith estimate of (A) the Target Working Capital and (B) each of the Cash Amount, the outstanding amount of all Funded Debt, the Transaction Expenses, Working Capital, the Working Capital Surplus, if any, and the Working Capital Deficit, if any, in each case as of immediately prior to the Effective Time without giving effect to the payment of any Funded Debt or the Transaction Expenses on the Closing Date, and, based on such numbers, Buyer’s good faith calculation of the Closing Cash Payment as of the Closing Date (the “Closing Statement”). Upon receipt of the Closing Statement, the Representative and his accountants will be given reasonable access to the Company’s relevant books, records and work papers related to the Closing Statement during reasonable business hours for the purpose of verifying the Closing Statement; provided that such access shall be in a manner that does not reasonably interfere with the normal business operations of Buyer or the Company. If the Representative has any objections to the Closing Statement, then the Representative shall deliver to Buyer a statement (an “Objection Statement”) setting forth in reasonable detail his disputes or objections (the “Objection Disputes”) to the Closing Statement and the Representative’s proposed resolution of each such Objection Dispute. If an Objection Statement is not delivered to Buyer within thirty (30) days after receipt of the Closing Statement by the Representative, then the Closing Statement as originally received by the Representative shall be final, binding and non-appealable by the Parties. If an Objection Statement is timely delivered, then Buyer and the Representative shall negotiate in good faith to resolve any Objection Disputes, but if they do not reach a final resolution within thirty (30) days after the delivery of the Objection Statement, the Representative and Buyer shall submit each unresolved Objection Dispute to Wolf & Company, P.C. or another independent auditor acceptable to Buyer and the Representative with expertise with transactions of this type (the “Independent Auditor”) to resolve such Objection Disputes. The Independent Auditor shall be instructed to set forth a procedure to provide for prompt resolution of any unresolved Objection Disputes and, in any event, to make its determination in respect of such Objection Disputes within thirty (30) days following its retention. The Independent Auditor’s determination of such Objection Disputes shall be final and binding upon the Parties; provided, however, that no such determination shall be any more favorable to Buyer than is set forth in the Closing Statement or any more favorable to the Shareholder and the Company Payees than is proposed in the Objection Statement. Buyer, on the one hand, and the Shareholder and the Company Payees, on the other hand, shall split and pay equally all of the fees, costs and expenses of the Independent Auditor. The final Closing Statement, however determined pursuant to this Section 3.5(b), will produce the Working Capital Surplus or Working Capital Deficit, if any, and the Cash Amount, the outstanding amount of all Funded Debt as of the close of business on the Closing Date, and the Transaction Expenses, in each case to be used to determine the final Closing Cash Payment. The process set forth in this Section 3.5(b) shall be the exclusive remedy of the Parties for any disputes related to items required to be reflected on the Closing Statement or included in the calculation of Target Working Capital, Working Capital, the Cash Amount, the outstanding amount of all Funded Debt, or the Transaction Expenses, without prejudice to any rights or remedies of any Party against any other Party in respect of a breach of any representations or warranties contained in this Agreement; provided, however, in no event shall either of Buyer, on the one hand, or the Shareholder and Company Payees, on the other hand, be entitled to any duplicative recovery.

Final Calculations. (i) No later than May 3Within seventy-five days after the Closing Date, 2017, Buyer Bxxxx shall prepare and deliver to the Representative a statement setting forth Buyer’s good faith estimate calculation of (A) the Target Working Capital (and (B) each of the Cash Amount, the outstanding amount of all Funded Debt, the Transaction Expenses, Working Capital, the Working Capital Surplus, if any, and the Surplus or Working Capital Deficit, if any, in each case implied thereby), (B) the Cash Amount, (C) the outstanding amount of all Funded Debt as of immediately prior to the Effective Time without giving effect to the payment of any Funded Debt or Adjustment Time, (D) the Transaction Expenses on and (E) the Closing Date, and, based on such numbers, Buyer’s good faith calculation of the Closing Cash Payment as of the Closing Date resulting therefrom (the “Closing Statement”). Upon receipt After delivery of the Closing Statement, the Representative and his its accountants will and other representatives shall be given permitted to make inquiries of, and request documents, information and supporting details from, Buyer and the Company and their accountants and other representatives regarding the Closing Statement and Buyer shall, and shall cause the Surviving Company and its Subsidiaries and their respective officers, employees, consultants, accountants and agents to cooperate with the Representative and its accountants and other representatives in connection with their review of the Closing Statement (including by providing the Representative with reasonable access to the Company’s relevant booksdocuments, records information and work papers related to supporting details reasonably requested by the Closing Statement during reasonable business hours for the purpose of verifying the Closing Statement; provided that such access shall be Representative and its accountants or other representatives in a manner that does not reasonably interfere with the normal business operations of Buyer or the Companyconnection therewith). If the Representative has any objections to the Closing Statement, then the Representative shall deliver to Buyer a statement (an “Objection Statement”) setting forth in reasonable detail his disputes or its objections (the “Objection Disputes”) to the Closing Statement and the Representative’s proposed resolution of each such Objection DisputeStatement. If an Objection Statement is not delivered to Buyer within thirty (30) sixty days after receipt of the Closing Statement by the Representative, then the Closing Statement as originally received by the Representative shall be the final Closing Statement that is final, binding and non-appealable by the Parties. If an Objection Statement is timely delivered, then Buyer and the Representative shall negotiate in good faith to resolve any Objection Disputes, but if they do not reach a final resolution within thirty (30) days after the delivery of the Objection Statement, the Representative and Buyer shall submit each unresolved Objection Dispute to Wolf & Company, P.C. or another independent auditor acceptable to Buyer and the Representative with expertise with transactions of this type Gxxxx Xxxxxxxx LLP (the “Independent AuditorFirm”) to resolve such Objection Disputes. The Independent Auditor Firm shall be instructed that the team at the Firm dedicated to set forth a procedure to provide for prompt the resolution of any unresolved Objection Disputes andshall be independent from any other transactions involving Buyer, the Company or the Representative or their respective Affiliates. If Gxxxx Xxxxxxxx LLP refuses or is otherwise unable to act as the Firm, then Bxxxx and the Representative shall cooperate in good faith to appoint a nationally recognized independent accounting or valuation firm mutually agreeable to Buyer and the Representative, in any eventwhich event “Firm” shall mean such firm. If Buyer and the Representative cannot agree on the appointment of another nationally recognized independent accounting or valuation firm within fifteen Business Days after it has become apparent that Gxxxx Xxxxxxxx LLP refuses or is otherwise unable to act as the Firm, then another nationally recognized accounting or valuation firm shall be appointed by the ICC International Centre for ADR in accordance with the Rules for the Appointment of Experts and Neutrals of the International Chamber of Commerce to make its act as the “Firm”. The Firm shall be requested to render a written determination in respect of such the unresolved Objection Disputes (acting as an expert and not as an arbitrator) within thirty (30) forty-five days following its retention, which determination must be in writing and must set forth, in reasonable detail, the basis therefor and must be based solely on (I) the definitions and other applicable provisions of this Agreement, (II) a single written presentation (which presentations shall be limited to the unresolved Objection Disputes) submitted by each of Buyer and the Representative to the Firm within fifteen days after its retention (which the Firm shall forward to the other Party) and (III) one written response submitted to the Firm within fifteen days after receipt of each presentation (which the Firm shall forward to the other Party) and not on independent review. The Independent AuditorBuyer and the Representative will instruct the Firm to resolve the unresolved Objection Disputes submitted to it by selecting either Buyer’s position in its entirety or the Representative’s position in its entirety. Absent manifest error, the Firm’s determination of such Objection Disputes shall be final and binding upon the Parties; provided, however, that no such determination Parties and not subject to review by a court or other tribunal. The terms of appointment and engagement of the Firm shall be as reasonably agreed upon between Buyer and the Representative, and any more favorable associated engagement fees shall initially be allocated 50% to Buyer than is set forth in the Closing Statement or any more favorable and 50% to the Shareholder and the Company Payees than is proposed in the Objection Statement. Buyer, on the one hand, and the Shareholder and the Company Payees, on the other hand, shall split and pay equally all of the Representative; provided that such fees, costs and expenses of the Independent AuditorFirm will ultimately be borne by the Party whose position is not selected by the Firm. The final Closing Statement, however determined pursuant to Except as provided in this Section 3.5(b3.03(b)(i), will produce all other costs and expenses incurred by the Working Capital Surplus or Working Capital Deficit, if any, Parties in connection with resolving any dispute hereunder before the Firm shall be borne by the Party incurring such costs and the Cash Amount, the outstanding amount of all Funded Debt as of the close of business on the Closing Date, and the Transaction Expenses, in each case to be used to determine the final Closing Cash Paymentexpense. The process set forth in this Section 3.5(b3.03(b) shall be the exclusive remedy of the Parties for any disputes related to items required to be reflected on the Closing Statement or included in the calculation of Target Working Capital, Working Capital, the Cash Amount, the outstanding amount of all Funded Debt, Debt as of the Adjustment Time or the Transaction Expenses, without prejudice to any rights or remedies of any Party against any other Party in respect of a breach of any representations or warranties contained in this Agreement; provided, however, in no event shall either of Buyer, on the one hand, or the Shareholder and Company Payees, on the other hand, be entitled to any duplicative recovery.

Final Calculations. (i) No later than May 3ninety (90) days after the Closing Date, 2017, Buyer shall the Purchaser will prepare (at Purchaser’s expense) and deliver to the Seller Representative a statement setting forth Buyer’s good faith estimate of (A) the Target Working Capital and (B) each its calculation of the Cash Amount, the outstanding amount of all Funded Debt, the Transaction Expenses, Net Working Capital, the Working Capital SurplusLoan Receivables Amount, if anyClosing Indebtedness, Transaction Expenses and the Working Capital Deficit, if any, in each case as of immediately prior to the Effective Time without giving effect to the payment of any Funded Debt or the Transaction Expenses on the Total Closing Date, and, based on such numbers, Buyer’s good faith calculation of the Closing Cash Payment as of the Closing Date Surcharge Adjustment (the “Closing Statement”), which Closing Statement shall include a balance sheet of Seller as of the Closing Date without giving effect to the transactions contemplated herein. Upon receipt After delivery of the Closing Statement, the Seller Representative and his accountants will its accounting and financial advisors shall be given reasonable access permitted during normal business hours to review and copy the Company’s relevant books, records and work papers of the Purchaser and its accounting and financial advisors related to the preparation of the Closing Statement during reasonable business hours for and to make other inquiries of the purpose of verifying Purchaser and its accounting and financial advisors regarding questions concerning or disagreements with the Closing Statement; provided that such access shall be Statement arising in a manner that does not reasonably interfere with the normal business operations course of Buyer or the Companyits review thereof. If the Seller Representative has any objections to any items in the Closing Statement, then the Seller Representative shall deliver to Buyer the Purchaser a statement (an “Objection Statement”) setting forth such objections to those items in reasonable detail his disputes or objections (the “Objection Disputes”) to the Closing Statement and and, to the extent practical, the Seller Representative’s proposed resolution of each such disputed items. The Purchaser shall, and shall cause its officers, employees, consultants, accountants and agents to, cooperate fully with Seller, the Seller Representative and their respective accounting and financial advisors in connection with their review of the Closing Statement and the preparation of any Objection DisputeStatement and to provide any information reasonably requested by Seller, the Seller Representative and their respective accounting and financial advisors in connection therewith or in connection with resolving any objections therein. If an Objection Statement is not delivered to Buyer the Purchaser within thirty sixty (3060) days after receipt delivery of the Closing Statement by the RepresentativeStatement, then the Closing Statement as originally received delivered by the Representative Purchaser shall be final, final and binding and non-appealable by upon the Parties. If such an Objection Statement is timely delivered, then Buyer the Purchaser and the Seller Representative shall cooperate and negotiate in good faith to resolve any disputed items in the Objection DisputesStatement, but if they do not reach a final resolution within thirty (30) days after the delivery of the Objection Statement, the 26 Seller Representative and Buyer the Purchaser shall submit each unresolved item in the Objection Dispute Statement to Wolf & Company, P.C. or another independent auditor acceptable to Buyer and the Representative with expertise with transactions of this type (the “Independent Auditor”) Accountant to resolve such Objection Disputesunresolved items. The Independent Auditor Accountant shall be instructed to set forth a procedure to provide for prompt resolution of any unresolved Objection Disputes and, in any event, to make its determination in respect of such all then-unresolved items in the Objection Disputes Statement within thirty (30) days following its retention, and each Party shall reasonably cooperate with the Independent Accountant during such process. The Independent AuditorAccountant’s determination of such Objection Disputes unresolved items shall be final and binding upon the Parties, absent manifest error or Fraud; provided, however, that no such determination with respect to any item objected to in the Objection Statement shall be any more favorable to Buyer the Purchaser than is set forth in the Closing Statement or any more favorable to the Shareholder and the Company Payees Seller than is proposed in the Objection Statement. BuyerAll costs and expenses of the Independent Accountant shall be borne by Seller, on the one hand, and the Shareholder and the Company PayeesPurchaser, on the other hand, based upon the percentage amount actually contested but not awarded to Seller or the Purchaser, respectively, bears to the aggregate amount actually contested by Seller and the Purchaser, and such allocation shall split be determined by the Independent Accountant and pay equally all included in its decision. (For example and illustrative purposes only, if the aggregate amount of the feesunresolved items that are resolved by the Independent Accountant is $1,000,000, and such resolution results in an aggregate adjustment in Seller’s favor of $200,000, the Seller Representative on behalf of Seller will be responsible for eighty percent (80%) of the Independent Accountant’s fees and expenses (representing the percentage of such unresolved items not awarded in the Seller’s favor), and the Purchaser will be responsible for twenty percent (20%) of the Independent Accountant’s fees and expenses (representing the percentage of the amount of such unresolved items not awarded in the Purchaser’s favor)). The Parties shall bear their own costs and expenses in connection with their respective preparation and review of the Independent Auditor. The final Closing Statement and the Objection Statement, however determined pursuant to this Section 3.5(b), will produce as the Working Capital Surplus or Working Capital Deficit, if any, and the Cash Amount, the outstanding amount of all Funded Debt as of the close of business on the Closing Date, and the Transaction Expenses, in each case to be used to determine the final Closing Cash Paymentmay be. The process set forth in this Section 3.5(b2.03(d)(i) shall be the sole and exclusive remedy of the Parties for any disputes related to items required to be reflected on the Closing Statement or included in the calculation of Target the Net Working Capital, Working CapitalClosing Indebtedness, the Cash Amount, the outstanding amount of all Funded Debt, Transaction Expenses or the Transaction ExpensesTotal Closing Surcharge Adjustment, without prejudice to any rights whether or remedies of any Party against any other Party in respect of not the underlying facts and circumstances constitute a breach of any representations or warranties contained in this Agreement; provided, however, in no event shall either of Buyer, on the one hand, or the Shareholder and Company Payees, on the other hand, be entitled to any duplicative recoverywarranties.

Final Calculations. (i) No later than May 330 days after the Closing Date, 2017, the Buyer shall will prepare (at the Buyer’s expense) and deliver to the Representative Seller a statement setting forth Buyer’s good faith estimate of (A) the Target Working Capital and (B) each of the Cash Amount, the outstanding amount of all Funded Debt, the Transaction Expenses, Working Capital, the Working Capital Surplus, if any, and the Working Capital Deficit, if any, in each case as of immediately prior to the Effective Time without giving effect to the payment of any Funded Debt or the Transaction Expenses on the Closing Date, and, based on such numbers, Buyer’s good faith its calculation of the Closing Cash Payment as Date Adjustments, including a reconciliation of calculated amounts to those provided by the Seller, on a line-by-line basis. After delivery, the Seller and its accounting and financial advisors shall be permitted during normal business hours to review and copy the work papers of the Buyer and its accounting and financial advisors related to the preparation of the Closing Date (the “Closing Statement”). Upon receipt Adjustments and to make other inquiries of the Closing Statement, the Representative Buyer and his accountants will be given reasonable access to the Company’s relevant books, records its accounting and work papers related to financial advisors regarding questions or disagreements with the Closing Statement during reasonable business hours for Date Adjustments arising in the purpose course of verifying the Closing Statement; provided that such access shall be in a manner that does not reasonably interfere with the normal business operations of Buyer or the Companyits review thereof. If the Representative Seller has any objections to any items in the Closing StatementDate Adjustments, then the Representative Seller shall deliver to the Buyer a statement (an “Objection Statement”) setting forth in reasonable detail his disputes or such objections (the “Objection Disputes”) and, to the Closing Statement and extent practical, the RepresentativeSeller’s proposed resolution of each such disputed items. The Buyer shall, and shall cause its officers, employees, consultants, accountants and agents to, cooperate fully with Seller, the Seller and their respective accounting and financial advisors in connection with their review of the Closing Date Adjustments and the preparation of any Objection DisputeStatement and to provide any information reasonably requested by Seller, the Seller and their respective accounting and financial advisors in connection therewith or in connection with resolving any objections therein. If an Objection Statement is not delivered to the Buyer within thirty (30) 30 days after receipt of the Closing Statement by the RepresentativeClosing, then the Closing Statement as originally received by the Representative Estimated Purchase Price shall be final, binding and non-appealable by the Partiesfinal Purchase Price (the “Final Purchase Price”). If such an Objection Statement is timely delivered, then the Buyer and the Representative Seller shall cooperate and negotiate in good faith to resolve any disputed items in the Objection DisputesStatement, but if they do not reach a final resolution within thirty (30) 30 days after the delivery of the Objection Statement, the Representative Seller and the Buyer shall submit each unresolved item in the Objection Dispute Statement to Wolf & Company, P.C. or another independent auditor acceptable to Buyer and the Representative with expertise with transactions of this type (the “Independent Auditor”) Accountant to resolve such Objection Disputesunresolved items. The Independent Auditor Accountant shall be instructed to set forth a procedure to provide for prompt resolution of any unresolved Objection Disputes and, in any event, to make its determination in respect of all then-unresolved items in the Objection Statement, and each party shall reasonably cooperate with the Independent Accountant during such Objection Disputes within thirty (30) days following its retentionprocess. The Independent AuditorAccountant’s determination of such Objection Disputes unresolved items shall be final and binding upon the PartiesSeller and the Buyer, absent manifest error or Fraud; provided, however, that no such determination with respect to any item objected to in the Objection Statement shall be any more favorable to Buyer than is set forth in the Closing Statement or any more favorable to the Shareholder and the Company Payees than is proposed in the Objection Statement. BuyerAll costs and expenses of the Independent Accountant shall be borne by Seller, on the one hand, and the Shareholder and the Company PayeesBuyer, on the other hand, based upon the percentage amount actually contested but not awarded to Seller or the Buyer, respectively, bears to the aggregate amount actually contested by Seller and the Buyer, and such allocation shall split be determined by the Independent Accountant and pay equally all of the fees, included in its decision. The parties shall bear their own costs and expenses in connection with their respective preparation and review of the Independent Auditor. The final Closing Date Adjustments and the Objection Statement, however determined pursuant to this Section 3.5(b), will produce as the Working Capital Surplus or Working Capital Deficit, if any, and the Cash Amount, the outstanding amount of all Funded Debt as of the close of business on the Closing Date, and the Transaction Expenses, in each case to be used to determine the final Closing Cash Paymentmay be. The process set forth in this Section 3.5(b2.8(c)(i) shall be the sole and exclusive remedy of the Parties Buyer and Seller for any disputes related to items required to be reflected on the Closing Statement Date Adjustments or included in an Objection Statement, whether or not the calculation of Target Working Capital, Working Capital, the Cash Amount, the outstanding amount of all Funded Debt, or the Transaction Expenses, without prejudice to any rights or remedies of any Party against any other Party in respect of underlying facts and circumstances constitute a breach of any representations or warranties contained in this Agreement; provided, however, in no event shall either of Buyer, on the one hand, or the Shareholder and Company Payees, on the other hand, be entitled to any duplicative recoverywarranties.

Final Calculations. (i) No later than May 3, 2017Within sixty (60) days after the Closing Date, Buyer shall prepare and deliver to the Representative (a) a detailed balance sheet of the Company as of the Closing Date and a statement setting forth Buyer’s good faith estimate calculation of (Ai) the Target Working Capital and the Working Capital Surplus or Working Capital Deficit, if any, (Bii) each of the Cash Amount, the outstanding amount of all Funded Debt, the Transaction Expenses, Working Capital, the Working Capital Surplus, if any, and the Working Capital Deficit, if any, in each case Debt as of immediately prior to the Effective Time without giving effect to the payment of any Funded Debt or the Transaction Expenses on the Closing Date, and, and the Transaction Expenses Amount and (iii) based on such numbersthe amounts set forth in clauses (a)(i) and (a)(ii), Buyer’s good faith calculation of the Closing Cash Payment as of the Closing Date (collectively, the “Closing Statement”)) and (b) all records and work papers reasonably necessary to compute and verify the information set forth in the Closing Statement. Upon receipt After delivery of the Closing StatementStatement (including, for the avoidance of doubt, during any period prior to the Closing Statement becoming final in accordance with this Section 2.04(b)), the Representative and his its accountants will shall be given permitted to make reasonable access to inquiries of Buyer and the Company’s relevant booksCompany and their respective accountants, records and work papers related to and relevant employees, during normal business hours and on 24 hours’ advance notice, regarding questions concerning or disagreements with the Closing Statement during reasonable business hours for arising in the purpose course of verifying the Closing Statement; provided that such access shall be in a manner that does not reasonably interfere with the normal business operations of Buyer or the Companytheir review thereof. If the Representative has any objections to the Closing Statement, then the Representative shall deliver to Buyer a statement (an “Objection Statement”) setting forth in reasonable detail his its disputes or objections (the “Objection Disputes”) to the Closing Statement and and, to the extent practical, the Representative’s proposed resolution of each such Objection Dispute. If an Objection Statement is not delivered to Buyer within thirty (30) days after receipt of the Closing Statement by the Representative, then the Closing Statement as originally received by the Representative shall be final, binding and non-appealable by the Parties. If an Objection Statement is timely delivered, then Buyer and the Representative shall negotiate in good faith to resolve any Objection Disputes, but if they do not reach a final resolution within thirty (30) days after the delivery of the Objection Statement, the Representative and Buyer shall submit each unresolved Objection Dispute to Wolf & CompanyBDO USA, P.C. LLP or another independent auditor acceptable to such other nationally recognized accounting firm as the Buyer and the Representative with expertise with transactions of this type shall agree (the “Independent Auditor”) to resolve such Objection Disputes. Each of the Representative and the Buyer agree to sign any reasonable engagement letter proposed by the Independent Auditor and to advance fifty percent (50%) of any retainer required by the Independent Auditor in connection therewith (subject to reimbursement by the non-prevailing party as defined below). The Independent Auditor shall be instructed to set forth a procedure to provide for prompt resolution of any unresolved Objection Disputes and, in any event, to make its determination in respect of such Objection Disputes within thirty (30) days following its retention. The Independent Auditor’s determination of such Objection Disputes shall be final and binding upon the Parties, except in the case of manifest error, and not subject to review by a court or other tribunal; provided, however, that no any such determination with respect to any item reflected in the Objection Statement shall not be any more favorable to Buyer than is set forth in the Closing Statement or any more favorable to the Shareholder and the Company Payees Representative than is proposed in the Objection Statement. If any unresolved Objection Disputes are submitted to the Independent Auditor, then, for purposes of this Section 2.04(b), Buyer shall be the prevailing party in such proceeding if a majority of the dollar amount of the unresolved Objection Disputes are decided by the Independent Auditor in favor of Buyer, on the one hand, and the Shareholder Representative shall be the prevailing party if a majority of the dollar amount of the unresolved Objection Disputes are decided by the Independent Auditor in favor of the Representative (e.g., if there are $200,000 of disputed items to be determined by the Independent Auditor and the Company PayeesIndependent Auditor determines that Buyer’s claims prevail with respect to $125,000 and the Representative’s claims prevail with respect to $75,000, on then Buyer would be the other hand, prevailing party). The Party that is not the prevailing party shall split and pay equally all of the fees, costs and expenses of the Independent AuditorAuditor (including reimbursement to the prevailing party of any portion of any retainer advanced by such prevailing party). The final Closing Statement, however determined pursuant to this Section 3.5(b2.04(b), will produce be used to calculate the Working Capital Surplus or Working Capital Deficit, if any, and the Cash Amount, the outstanding amount of all Funded Debt as of the close of business on the Closing Date, and the Transaction ExpensesExpenses Amount, in each case to be used to determine the final Closing Cash Payment. The process set forth in this Section 3.5(b2.04(b) shall be the exclusive remedy of the Parties for any disputes related to items required to be reflected on the Closing Statement or included in with respect to the calculation of Target the Working Capital, Working Capital, Capital and the Cash Amount; provided, the outstanding amount of all Funded Debthowever, or the Transaction Expenses, without prejudice to such process shall not limit any rights or remedies of any Party against any other Party in respect of a Liability for breach of any representations or warranties contained hereunder or limit the indemnity provided in this Agreement; provided, however, in no event shall either of Buyer, Section 10.02(a)(iii) for any Funded Debt or Transaction Expenses that are not included on the one hand, or the Shareholder and Company Payees, on the other hand, be entitled to any duplicative recoveryClosing Statement.

Final Calculations. (i) No later than May 3, 2017Within sixty (60) days after the Closing Date, Buyer shall prepare and deliver to the Representative (a) a statement setting forth Buyer’s good faith estimate calculation of (A1) the Target Working Capital (and the Working Capital Surplus or Working Capital Deficit, if any), (B2) each of the Cash Amount, (3) the outstanding amount of all Funded Debt, the Transaction Expenses, Working Capital, the Working Capital Surplus, if any, and the Working Capital Deficit, if any, in each case as of Debt immediately prior to the Effective Time without giving effect to the payment of any Funded Debt or Closing, (4) the Transaction Expenses Amount, and (5) based on the Closing Dateamounts set forth in clauses (1) through (4), and, based on such numbers, Buyer’s good faith calculation of the Closing Cash Payment as of the Closing Date (the “Closing Statement”) and (b) make available to the Representative all reasonably requested records and work papers necessary to compute and verify the information set forth in the Closing Statement. If Buyer does not deliver the Closing Statement to the Representative within sixty (60) days after the Closing Date, then, at the election of the Representative (acting in its sole discretion), either (x) the Representative may prepare and present the Closing Statement within an additional thirty (30) days thereafter or (y) the Estimated Closing Statement will be deemed to be the final Closing Statement in accordance with this Section 3.04(b). Upon receipt If the Representative elects to prepare the Closing Statement in accordance with the immediately preceding sentence, then Representative shall deliver written notice to Buyer of such election and all subsequent references in this Section 3.04(b)(i) to Buyer, on the one hand, and the Representative, on the other hand, will be deemed to be references to the Representative, on the one hand, and Buyer, on the other hand, respectively. After delivery of the Closing Statement, the Representative and his its accountants will shall be given permitted to make reasonable access to inquiries of Buyer and the Company’s relevant books, records Company and work papers related to their accountants regarding questions concerning or disagreements with the Closing Statement during reasonable business hours for arising in the purpose course of verifying the Closing Statement; provided that such access shall be in a manner that does not reasonably interfere with the normal business operations of Buyer or the Companytheir review thereof. If the Representative has any objections to the Closing Statement, then the Representative shall deliver to Buyer a statement (an “Objection Statement”) setting forth in reasonable detail his its disputes or objections (the “Objection Disputes”) to the Closing Statement and and, to the extent practical, the Representative’s proposed resolution of each such Objection Dispute. If an Objection Statement is not delivered to Buyer within thirty (30) days after receipt of the Closing Statement by the Representative, then the Closing Statement as originally received by the Representative shall be final, binding and non-appealable by the Parties. If an Objection Statement is timely delivered, then Buyer and the Representative shall negotiate in good faith to resolve any Objection Disputes, but if they do not reach a final resolution within thirty (30) days after the delivery of the Objection Statement, the Representative and Buyer shall submit each unresolved Objection Dispute to Wolf & Companythe New York, P.C. or another independent auditor acceptable to Buyer and the Representative with expertise with transactions New York office of this type Xxxxx Xxxxxxxx LLP (the “Independent Auditor”) to resolve such Objection Disputes. If Xxxxx Xxxxxxxx LLP refuses or is otherwise unable to act as the Independent Auditor, then Buyer and the Representative shall cooperate in good faith to appoint a nationally recognized independent accounting firm mutually agreeable to Buyer and the Representative, in which event “Independent Auditor” shall mean such firm. The Independent Auditor shall be instructed to set forth a procedure to provide for prompt resolution of any unresolved Objection Disputes and, in any event, to make its determination in respect of such Objection Disputes within thirty (30) days following its retention. The Independent Auditor’s determination of such Objection Disputes shall be final and binding upon the PartiesParties and not subject to review by a court or other tribunal; provided, however, that no such determination with respect to any item reflected in the Objection Statement shall be any more favorable to Buyer than is set forth in the Closing Statement or any more favorable to the Shareholder and the Company Payees Representative than is proposed in the Objection - 9 - Statement. If any unresolved Objection Disputes are submitted to the Independent Auditor, then, for purposes of this Section 3.04(b), Buyer shall be the prevailing party in such proceeding if a majority of the dollar amount of the unresolved Objection Disputes are decided by the Independent Auditor in favor of Buyer, on the one hand, and the Shareholder Representative shall be the prevailing party if a majority of the dollar amount of the unresolved Objection Disputes are decided by the Independent Auditor in favor of the Representative (e.g., if there are $200,000 of disputed items to be determined by the Independent Auditor and the Company PayeesIndependent Auditor determines that Buyer’s claims prevail with respect to $125,000 and the Representative’s claims prevail with respect to $75,000, on then Buyer would be the other hand, prevailing party). The Party that is not the prevailing party shall split and pay equally all of the fees, costs and expenses of the Independent Auditor. The final Closing Statement, however determined pursuant to this Section 3.5(b3.04(b), will produce the Working Capital Surplus or Working Capital Deficit, if any, and the Cash Amount, the outstanding amount of all Funded Debt as of immediately prior to the close of business on the Closing DateClosing, and the Transaction ExpensesExpenses Amount, in each case to be used to determine the final Closing Cash Payment. The process set forth in this Section 3.5(b3.04(b) shall be the exclusive remedy of the Parties for any disputes related to items required to be reflected on the Closing Statement or included in the calculation of Target Working Capital, the Working Capital, the Cash Amount, the outstanding amount of all Funded Debt, or Debt and the Transaction ExpensesExpenses Amount, without prejudice to any rights provided that this sentence shall not prohibit Buyer from subsequently bringing a claim for a misrepresentation, breach or remedies of any Party against any other Party in respect of a breach inaccuracy of any representations or warranties contained in this Agreement; provided, however, in no event shall either of Buyer, on the one hand, or the Shareholder and Company Payees, on the other hand, be entitled to any duplicative recoveryaccordance with Article XI.