Common use of Final Net Working Capital Clause in Contracts

Final Net Working Capital. (a) As promptly as possible, but in any event within fifty (50) days after the Closing Date, Buyer will deliver to the Member Representative a consolidated balance sheet of Zonecare as of the Closing Date (the “Closing Balance Sheet”) and a statement showing the calculation of the Net Working Capital derived from the Closing Balance Sheet (together with the Closing Balance Sheet, the “Preliminary Net Working Capital Statement”). Except as set forth in Schedule 1.3, the Closing Balance Sheet shall be prepared and determined on a consolidated basis in accordance with GAAP and the Net Working Capital and Closing Balance Sheet shall be prepared and determined using the same accounting methods, policies, principles, practices and procedures, with consistent classifications, judgments and estimation methodology, as were used in preparation of the audited consolidated balance sheet of Zonecare as of the fiscal year ended December 31, 2006 (the “2006 Balance Sheet”) and shall not include any changes in assets or liabilities as a result of purchase accounting adjustments. The parties agree that the purpose of preparing the Closing Balance Sheet and determining the Net Working Capital and the related purchase price adjustment contemplated by this Section 1.3 is to measure changes in Net Working Capital, and such processes are not intended to permit the introduction of different judgments, accounting methods, policies, principles, practices, procedures, classifications or estimation methodologies for the purpose of preparing the Closing Balance Sheet or determining the Net Working Capital, as any of the foregoing should be modified to correct manifest error. After delivery of the Preliminary Net Working Capital Statement, the Member Representative and its accountants shall be permitted full access to review Zonecare’s books and records and work papers related to the preparation of the Preliminary Net Working Capital Statement. The Member Representative and its accountants may make inquires of Buyer, Zonecare and their respective accountants regarding questions concerning or disagreements with the Preliminary Net Working Capital Statement arising in the course of their review thereof, and Buyer shall use its, and shall cause Zonecare to use their, commercially reasonable efforts to cause any such accountants to cooperate with and respond to such inquiries, subject to the execution by the Member Representative and its accountants of such “access” agreements and other documents as Zonecare’s auditors may reasonably request. If the Member Representative has any objections to the Preliminary Net Working Capital Statement, the Member Representative shall deliver to Buyer a statement setting forth its objections thereto (an “Objections Statement”). If an Objections Statement is not delivered to Buyer within 60 days after delivery of the Preliminary Net Working Capital Statement, the Preliminary Net Working Capital Statement shall be final, binding and non-appealable by the parties hereto. The Member Representative and Buyer shall negotiate in good faith to resolve any such objections, but if they do not reach a final resolution within 15 days after the delivery of the Objections Statement, the Member Representative and Buyer shall submit such dispute to Deloitte & Touche (the “Dispute Resolution Auditor”). Any further submissions to the Dispute Resolution Auditor must be written and delivered to each party to the dispute. The Dispute Resolution Auditor shall consider only those items and amounts which are identified in the Objections Statement as being items which the Member Representative and Buyer are unable to resolve. The Dispute Resolution Auditor’s determination will be based solely on the definition of Net Working Capital contained herein. The Member Representative and Buyer shall use their commercially reasonable efforts to cause the Dispute Resolution Auditor to resolve all disagreements as soon as practicable. Further, the Dispute Resolution Auditor’s determination shall be based solely on the presentations by Buyer and the Member Representative which are in accordance with the terms and procedures set forth in this Agreement (i.e., not on the basis of an independent review). The resolution of the dispute by the Dispute Resolution Auditor shall be final, binding and non-appealable on the parties hereto. The costs and expenses of the Dispute Resolution Auditor shall be allocated between Buyer, on the one hand and the Sellers on the other hand, based upon the percentage which the portion of the contested amount not awarded to each party bears to the amount actually contested by such party (with each Seller responsible for his or her portion of such costs and expenses (determined on a pro rata basis according to each party’s membership interests)). For example, if the Member Representative claims the Net Working Capital is $1,000 greater than the amount determined by Buyer’s accountants, and Buyer contests only $500 of the amount claimed by the Member Representative, and if the Dispute Resolution Auditor ultimately resolves the dispute by awarding the Sellers $300 of the $500 contested, then the costs and expenses of arbitration will be allocated 60% (i.e., 300 ÷ 500) to Buyer and 40% (i.e., 200 ÷ 500) to the Sellers.

Final Net Working Capital. (a) As promptly as possible, but in any event within fifty (50) days after the Closing Date, Buyer will deliver to the Member Representative a consolidated balance sheet of Zonecare Speedy as of the Closing Date (the “Closing Balance Sheet”) and a statement showing the calculation of the Net Working Capital derived from the Closing Balance Sheet (together with the Closing Balance Sheet, the “Preliminary Net Working Capital Statement”). Except as set forth in Schedule 1.3, the Closing Balance Sheet shall be prepared and determined on a consolidated basis in accordance with GAAP and the Net Working Capital and Closing Balance Sheet shall be prepared and determined using the same accounting methods, policies, principles, practices and procedures, with consistent classifications, judgments and estimation methodology, as were used in preparation of the audited consolidated balance sheet of Zonecare Speedy as of the fiscal year ended December 31, 2006 (the “2006 Balance Sheet”) and shall not include any changes in assets or liabilities as a result of purchase accounting adjustments. The parties agree that the purpose of preparing the Closing Balance Sheet and determining the Net Working Capital and the related purchase price adjustment contemplated by this Section 1.3 is to measure changes in Net Working Capital, and such processes are not intended to permit the introduction of different judgments, accounting methods, policies, principles, practices, procedures, classifications or estimation methodologies for the purpose of preparing the Closing Balance Sheet or determining the Net Working Capital, as any of the foregoing should be modified to correct manifest error. After delivery of the Preliminary Net Working Capital Statement, the Member Representative and its accountants shall be permitted full access to review ZonecareSpeedy’s books and records and work papers related to the preparation of the Preliminary Net Working Capital Statement. The Member Representative and its accountants may make inquires of Buyer, Zonecare Speedy and their respective accountants regarding questions concerning or disagreements with the Preliminary Net Working Capital Statement arising in the course of their review thereof, and Buyer shall use its, and shall cause Zonecare Speedy to use their, commercially reasonable efforts to cause any such accountants to cooperate with and respond to such inquiries, subject to the execution by the Member Representative and its accountants of such “access” agreements and other documents as ZonecareSpeedy’s auditors may reasonably request. If the Member Representative has any objections to the Preliminary Net Working Capital Statement, the Member Representative shall deliver to Buyer a statement setting forth its objections thereto (an “Objections Statement”). If an Objections Statement is not delivered to Buyer within 60 days after delivery of the Preliminary Net Working Capital Statement, the Preliminary Net Working Capital Statement shall be final, binding and non-appealable by the parties hereto. The Member Representative and Buyer shall negotiate in good faith to resolve any such objections, but if they do not reach a final resolution within 15 days after the delivery of the Objections Statement, the Member Representative and Buyer shall submit such dispute to Deloitte & Touche (the “Dispute Resolution Auditor”). Any further submissions to the Dispute Resolution Auditor must be written and delivered to each party to the dispute. The Dispute Resolution Auditor shall consider only those items and amounts which are identified in the Objections Statement as being items which the Member Representative and Buyer are unable to resolve. The Dispute Resolution Auditor’s determination will be based solely on the definition of Net Working Capital contained herein. The Member Representative and Buyer shall use their commercially reasonable efforts to cause the Dispute Resolution Auditor to resolve all disagreements as soon as practicable. Further, the Dispute Resolution Auditor’s determination shall be based solely on the presentations by Buyer and the Member Representative which are in accordance with the terms and procedures set forth in this Agreement (i.e., not on the basis of an independent review). The resolution of the dispute by the Dispute Resolution Auditor shall be final, binding and non-appealable on the parties hereto. The costs and expenses of the Dispute Resolution Auditor shall be allocated between Buyer, on the one hand and the Sellers on the other hand, based upon the percentage which the portion of the contested amount not awarded to each party bears to the amount actually contested by such party (with each Seller responsible for his or her portion of such costs and expenses (determined on a pro rata basis according to each party’s membership interests)). For example, if the Member Representative claims the Net Working Capital is $1,000 greater than the amount determined by Buyer’s accountants, and Buyer contests only $500 of the amount claimed by the Member Representative, and if the Dispute Resolution Auditor ultimately resolves the dispute by awarding the Sellers $300 of the $500 contested, then the costs and expenses of arbitration will be allocated 60% (i.e., 300 ÷ 500) to Buyer and 40% (i.e., 200 ÷ 500) to the Sellers.

Final Net Working Capital. Within seventy-five (a) As promptly as possible, but in any event within fifty (5075) days after the Closing Date, the Buyer will deliver shall submit to the Member Representative a consolidated balance sheet Sellers its written calculations, prepared in accordance with GAAP and, to the extent consistent therewith, the Specified Accounting Principles, of Zonecare the Net Working Capital as of the Closing Date (the “Final Net Working Capital”), accompanied by the Company’s and the Subsidiary’s consolidated balance sheet as of 11:59 p.m. on the date immediately prior to the Closing Date (the “Final Balance Sheet”) ). Annex 2 includes an example calculation of Net Working Capital in accordance with this Agreement as of December 29, 2013 (the “Sample Working Capital Calculation”). The calculation of the Final Net Working Capital shall be derived from the Final Balance Sheet and a statement showing shall include only those line items set forth on the Sample Working Capital Calculation, with such changes thereto as may be mutually agreed to by the Buyer and the Sellers in order to reflect differences between the Current Assets and Current Liabilities as of the Closing Date, as compared to those included in the Sample Working Capital Calculation. If the Buyer and the Sellers cannot mutually agree on changes to the line items in the calculation of the Final Net Working Capital derived from the Closing Balance Sheet (together with the Closing Balance SheetCapital, the “Preliminary Net Working Capital Statement”). Except as set forth in Schedule 1.3, the Closing Balance Sheet proposed changes shall be prepared and determined on submitted to the Independent Accounting Firm for final determination; provided that the Independent Accounting Firm shall be instructed to only consider additional line items that would customarily be included in a consolidated basis working capital calculation in accordance with GAAP GAAP. Each Seller and its respective representatives shall be provided access, during normal business hours following reasonable advance notice and in a manner that does not materially interfere with the operations of the Buyer or the Company, to all materials, records and personnel of the Buyer or the Company reasonably necessary for such Seller to verify the amount of the Final Net Working Capital and Closing Balance Sheet shall be prepared and determined using the same accounting methods, policies, principles, practices and procedures, with consistent classifications, judgments and estimation methodology, as were used in preparation of the audited consolidated balance sheet of Zonecare as of the fiscal year ended December 31, 2006 (the “2006 Balance Sheet”) and shall not include any changes in assets or liabilities as a result of purchase accounting adjustmentsCapital. The parties agree that the purpose of preparing the Closing Balance Sheet and determining the Final Net Working Capital and the related purchase price adjustment contemplated by this Section 1.3 is to measure changes in Net Working Capital, and such processes are not intended to permit the introduction of different judgments, accounting methods, policies, principles, practices, procedures, classifications or estimation methodologies for the purpose of preparing the Closing Final Balance Sheet or determining submitted by the Net Working CapitalBuyer to the Sellers shall become final and binding upon the Buyer and the Sellers forty-five (45) days after delivery thereof to the Sellers (the “Purchase Price Review Period”), as any unless the Sellers, within the Purchase Price Review Period, provide written notice to the Buyer disputing the amount of the foregoing should be modified to correct manifest error. After delivery of the Preliminary Final Net Working Capital Statementor the Final Balance Sheet, the Member Representative and setting forth its accountants shall be permitted full access to review Zonecare’s books and records and work papers related to the preparation determination of the Preliminary Final Net Working Capital Statement. The Member Representative and its accountants may make inquires specifying in reasonable detail the amount, nature and basis of Buyerall disputed items (the “Protest Letter”), Zonecare and their respective accountants regarding questions concerning or disagreements with in which case the Preliminary Final Net Working Capital Statement arising in and the course of their review thereof, and Buyer shall use its, and shall cause Zonecare to use their, commercially reasonable efforts to cause any such accountants to cooperate with and respond to such inquiries, subject to the execution by the Member Representative and its accountants of such “access” agreements and other documents as Zonecare’s auditors may reasonably request. If the Member Representative has any objections to the Preliminary Net Working Capital Statement, the Member Representative shall deliver to Buyer a statement setting forth its objections thereto (an “Objections Statement”). If an Objections Statement is not delivered to Buyer within 60 days after delivery Final Balance Sheet of the Preliminary Net Working Capital Statement, Company shall not be binding upon the Preliminary Net Working Capital Statement parties and such dispute shall be final, binding and non-appealable by the parties hereto. The Member Representative and Buyer shall negotiate in good faith resolved pursuant to resolve any such objections, but if they do not reach a final resolution within 15 days after the delivery of the Objections Statement, the Member Representative and Buyer shall submit such dispute to Deloitte & Touche (the “Dispute Resolution Auditor”Section 2.3(b). Any further submissions to the Dispute Resolution Auditor must be written and delivered to each party to the dispute. The Dispute Resolution Auditor shall consider only those items and amounts which are identified in the Objections Statement as being items which the Member Representative and Buyer are unable to resolve. The Dispute Resolution Auditor’s determination will be based solely on the definition of Net Working Capital contained herein. The Member Representative and Buyer shall use their commercially reasonable efforts to cause the Dispute Resolution Auditor to resolve all disagreements as soon as practicable. Further, the Dispute Resolution Auditor’s determination shall be based solely on the presentations by Buyer and the Member Representative which are in accordance with the terms and procedures set forth in this Agreement (i.e., not on the basis of an independent review). The resolution of the dispute by the Dispute Resolution Auditor shall be final, binding and non-appealable on the parties hereto. The costs and expenses of the Dispute Resolution Auditor shall be allocated between Buyer, on the one hand and the Sellers on the other hand, based upon the percentage which the portion of the contested amount not awarded to each party bears to the amount actually contested by such party (with each Seller responsible for his or her portion of such costs and expenses (determined on a pro rata basis according to each party’s membership interests)). For example, if the Member Representative claims the Net Working Capital is $1,000 greater than the amount determined by Buyer’s accountants, and Buyer contests only $500 of the amount claimed by the Member Representative, and if the Dispute Resolution Auditor ultimately resolves the dispute by awarding the Sellers $300 of the $500 contested, then the costs and expenses of arbitration will be allocated 60% (i.e., 300 ÷ 500) to Buyer and 40% (i.e., 200 ÷ 500) to the Sellers.