Common use of Preparation of Final Closing Balance Sheet Clause in Contracts

Preparation of Final Closing Balance Sheet. (i) As promptly as practicable, but no later than 60 days after the Closing Date, Parent shall prepare and deliver to the Securityholders’ Representative (A) a balance sheet of the Company as of the close of business on the day immediately prior to the Closing Date, reflecting thereon Parent’s best estimate of the same balance sheet items of the Company as included on the Estimated Closing Balance Sheet but adjusted to take into account the final balances as of the close of business on the day immediately prior to the Closing Date (the “Closing Balance Sheet”) and (B) the Net Working Capital of the Company based on the Closing Balance Sheet. The Closing Balance Sheet shall be prepared in accordance with GAAP and using the same GAAP accounting principles, practices, methodologies and policies that were used to prepare the Estimated Closing Balance Sheet. (ii) Unless the Securityholders’ Representative deliver the Dispute Notice within 30 days after receipt of the Closing Balance Sheet, such Closing Balance Sheet shall be deemed the “Final Closing Balance Sheet,” shall be binding upon the Securityholders and Parent and shall not be subject to dispute or review. If the Securityholders’ Representative disagrees with the Closing Balance Sheet, the Securityholders’ Representative may, within 30 days after receipt thereof, notify Parent in writing (the “Dispute Notice”), which Dispute Notice shall provide reasonable detail of the nature of each disputed item on the Closing Balance Sheet, including all supporting documentation thereto, and the Securityholders’ Representative shall be deemed to have agreed with all other items and amounts contained in the Closing Balance Sheet delivered pursuant to this Section 3.5(b). Parent and the Securityholders’ Representative shall first use commercially reasonable efforts to resolve such dispute between themselves and, if Parent and the Securityholders’ Representative are able to resolve such dispute, the Closing Balance Sheet shall be revised to the extent necessary to reflect such resolution, shall be deemed the “Final Closing Balance Sheet” and shall be conclusive and binding upon the Securityholders and Parent and shall not be subject to dispute or review. If Parent and the Securityholders’ Representative are unable to resolve the dispute within 15 days after receipt by Parent of the Dispute Notice, Parent and the Securityholders’ Representative shall submit the dispute to Parent’s independent accounting firm (the “Accountants”). The Accountants shall act as experts and not arbiters and shall determine only those items that remain in dispute on the Closing Balance Sheet. Promptly, but no later than 30 days after engagement, the Accountants shall deliver a written report to Parent and the Securityholders’ Representative as to the resolution of the disputed items, the resulting Closing Balance Sheet and the resulting calculation of Net Working Capital as of the Closing Date. The Closing Balance Sheet as determined by the Accountants shall be deemed the “Final Closing Balance Sheet,” shall be conclusive and binding upon the Securityholders and Parent and shall not be subject to dispute or review. The fees and expenses of the Accountants in connection with the resolution of disputes pursuant to this Section 3.5(b) shall be paid by (A) the Securityholders (from the Escrow Fund), if Parent’s calculation of the portion of the Closing Net Working Capital in dispute is closer to the Accountants’ determination than the Securityholders’ Representative’s calculation thereof, (B) by Parent, if the reverse is true or (C) except as provided in clauses (A) or (B) above, equally by the Securityholders (from the Escrow Fund) and Parent. Parent and the Securityholders’ Representative agree that they will, and agree to cause their respective representatives and independent accountants to cooperate and assist in the preparation of the Closing Balance Sheet and in the conduct of the audits and reviews referred to in this Section 3.5(b), including, without limitation, the making available to the extent necessary of books, records, work papers and personnel. (iii) The Merger Consideration shall be adjusted, dollar for dollar, up or down, as appropriate, to the extent that the Net Working Capital set forth on the Final Closing Balance Sheet (the “Closing Net Working Capital”) is greater than or less than the Estimated Net Working Capital, as applicable. Within three Business Days following determination of the Closing Net Working Capital in accordance with Section 3.5(b)(ii), (A) if the Closing Net Working Capital is less than the Estimated Net Working Capital, Parent and the Securityholders’ Representative shall jointly direct the Escrow Agent to pay to Parent from the Escrow Fund an amount equal to the difference between such amounts and to deliver the balance amount, if any, to Parent and (B) if the Closing Net Working Capital is greater than the Estimated Net Working Capital, Parent shall deliver or cause to be delivered to the Paying Agent and/or Surviving Company the amount equal to the Closing Net Working Capital minus the Estimated Net Working Capital, and Parent shall cause the Paying Agent and/or Surviving Company to distribute such amount to the Securityholders in accordance with the Base Consideration Allocation Schedule. The difference between the Closing Net Working Capital and the Estimated Net Working Capital, whether a positive or a negative number, is referred to as the “Final Net Working Capital Adjustment Amount.”

Preparation of Final Closing Balance Sheet. (i) As promptly as practicable, but no later than 60 days after the Closing Date, Parent Buyer shall prepare and deliver to the Securityholders’ Representative (A) a balance sheet of the Company as of the close of business on the day immediately prior to the Closing Date, reflecting thereon ParentBuyer’s best estimate of the same balance sheet items of the Company as included on the Estimated Closing Balance Sheet but adjusted to take into account the final balances as of the close of business on the day immediately prior to the Closing Date (the “Closing Balance Sheet”) and (B) the Net Working Capital of the Company based on the Closing Balance Sheet). The Closing Balance Sheet shall be prepared in accordance with GAAP and using the same GAAP accounting principles, practices, methodologies and policies that were used to prepare the Estimated Closing Balance Sheet. (ii) Unless the Securityholders’ Representative deliver delivers the Dispute Notice within 30 days after receipt of the Closing Balance Sheet, such Closing Balance Sheet shall be deemed the “Final Closing Balance Sheet,” shall be binding upon the Securityholders and Parent parties hereto and shall not be subject to dispute or review. If the Securityholders’ Representative disagrees with the Closing Balance Sheet, the Securityholders’ Representative may, within 30 days after receipt thereof, notify Parent Buyer in writing (the “Dispute Notice”), which Dispute Notice shall provide reasonable detail of the nature of each disputed item on the Closing Balance Sheet, including all supporting documentation thereto, and the Securityholders’ Representative shall be deemed to have agreed with all other items and amounts contained in the Closing Balance Sheet delivered pursuant to this Section 3.5(b2.7(b). Parent Buyer and the Securityholders’ Representative shall first use commercially reasonable efforts to resolve such dispute between themselves and, if Parent Buyer and the Securityholders’ Representative are able to resolve such dispute, the Closing Balance Sheet shall be revised to the extent necessary to reflect such resolution, shall be deemed the “Final Closing Balance Sheet” and shall be conclusive and binding upon the Securityholders and Parent parties hereto and shall not be subject to dispute or review. If Parent Buyer and the Securityholders’ Representative are unable to resolve the dispute within 15 days after receipt by Parent Buyer of the Dispute Notice, Parent Buyer and the Securityholders’ Representative shall submit the dispute to Parent’s an independent accounting firm that has not been engaged by Buyer or Company during the two year period prior to the date of this Agreement (the “Accountants”). The Accountants shall act as experts and not arbiters and shall determine only those items that remain in dispute on the Closing Balance Sheet. Promptly, but no later than 30 days after engagement, the Accountants shall deliver a written report to Parent Buyer and the Securityholders’ Representative as to the resolution of the disputed items, items and the resulting Closing Balance Sheet and the resulting calculation of Net Working Capital as of the Closing DateSheet. The Closing Balance Sheet as determined by the Accountants shall be deemed the “Final Closing Balance Sheet,” shall be conclusive and binding upon the Securityholders and Parent parties hereto and shall not be subject to dispute or review. The fees and expenses of the Accountants in connection with the resolution of disputes pursuant to this Section 3.5(b2.7(b) shall be paid by (A) the Securityholders (from the Escrow Fund), if Parent’s calculation of the portion of the Closing Net Working Capital in dispute is closer to the Accountants’ determination than the Securityholders’ Representative’s calculation thereof, (B) by Parent, if the reverse is true or (C) except as provided in clauses (A) or (B) above, equally by the Securityholders (from the Escrow Fund) Sellers and ParentBuyer. Parent Buyer and the Securityholders’ Representative agree that they will, and agree to cause their respective representatives and independent accountants to cooperate and assist in the preparation of the Closing Balance Sheet and in the conduct of the audits and reviews referred to in this Section 3.5(b2.7(b), including, without limitation, the making available to the extent necessary of books, records, work papers and personnel. (iii) The Merger Consideration shall be adjusted, dollar for dollar, up or down, as appropriate, to the extent that the Net Working Capital set forth on the Final Closing Balance Sheet (the “Closing Net Working Capital”) is greater than or less than the Estimated Net Working Capital, as applicable. Within three Business Days following determination of the Closing Net Working Capital in accordance with Section 3.5(b)(ii), (A) if the Closing Net Working Capital is less than the Estimated Net Working Capital, Parent and the Securityholders’ Representative shall jointly direct have access (at reasonable times during normal business hours, on reasonable prior written notice and in a manner so as not to interfere with the Escrow Agent conduct of Parent’s or Buyer’s business operations) to pay to Parent from prior officers and employees of the Escrow Fund an amount equal to Company for the difference between such amounts purpose of preparing, reviewing, and to deliver the balance amount, if any, to Parent and (B) if analyzing the Closing Net Working Capital is greater than the Estimated Net Working Capital, Parent shall deliver or cause to be delivered to the Paying Agent and/or Surviving Company the amount equal to the Closing Net Working Capital minus the Estimated Net Working Capital, and Parent shall cause the Paying Agent and/or Surviving Company to distribute such amount to the Securityholders in accordance with the Base Consideration Allocation Schedule. The difference between the Closing Net Working Capital and the Estimated Net Working Capital, whether a positive or a negative number, is referred to as the “Final Net Working Capital Adjustment AmountBalance Sheet.”

Preparation of Final Closing Balance Sheet. (i) As promptly as practicable, but no later than 60 one hundred twenty (120) days after the Closing Date, Parent shall prepare and deliver to the Securityholders’ Stockholder Representative (A) a balance sheet of the Company as of the close of business on the day Business Day immediately prior to preceding the Closing Date, reflecting thereon Parent’s best estimate determination of the same balance sheet items of the Company as included on the Estimated Closing Balance Sheet but adjusted to take into account the final balances as of the close of business on the day Business Day immediately prior to preceding the Closing Date (the “Closing Balance Sheet”) and ), (B) the Net Working Capital of the Company based on the Closing Balance Sheet, (C) the unpaid Transaction Expenses as of immediately prior to the Closing, (D) the unpaid Indebtedness of the Company as of immediately prior to the Closing, and (E) Cash. The Closing Balance Sheet shall be prepared in accordance with GAAP and using consistent with the same GAAP Company’s past accounting principles, practices, methodologies and policies that were used to prepare the Estimated Closing Balance Sheet. (ii) After receipt of the Closing Balance Sheet, the Stockholder Representative shall have forty-five (45) days to review the Closing Balance Sheet. During such review period, the Stockholder Representative and its accountants shall have full access to the books and records of the Final Surviving Company, the personnel of, and work papers prepared by, Parent and/or its accountants to the extent that they relate to the Closing Balance Sheet and to such historical financial information (to the extent in the possession of Parent or any of its Affiliates) relating to the Closing Balance Sheet as the Stockholder Representative may reasonably request for the purpose of reviewing the Closing Balance Sheet and to prepare a Dispute Notice. Unless the Securityholders’ Stockholder Representative deliver delivers the Dispute Notice within 30 forty-five (45) days after receipt of the Closing Balance Sheet, such Closing Balance Sheet shall be deemed the “Final Closing Balance Sheet,” shall be binding upon the Securityholders Company Stockholders and Parent and shall not be subject to dispute or review. If the Securityholders’ Stockholder Representative disagrees with the Closing Balance ACTIVE/108710474.16 Sheet, the Securityholders’ Stockholder Representative may, within 30 forty-five (45) days after receipt thereof, notify Parent in writing (the “Dispute Notice”), which Dispute Notice shall provide reasonable detail of the nature of each disputed item on the Closing Balance Sheet, including all supporting documentation relating thereto, and the Securityholders’ Stockholder Representative shall be deemed to have agreed with all other items and amounts contained in the Closing Balance Sheet delivered pursuant to this Section 3.5(b2.9(b)(ii). Parent and the Securityholders’ Stockholder Representative shall first use commercially reasonable efforts to resolve such dispute between themselves and, if Parent and the Securityholders’ Stockholder Representative are able to resolve such dispute, the Closing Balance Sheet shall be revised to the extent necessary to reflect such resolution, shall be deemed the “Final Closing Balance Sheet” and shall be conclusive and binding upon the Securityholders Company Stockholders and Parent and shall not be subject to dispute or review. If Parent and the Securityholders’ Stockholder Representative are unable to resolve the dispute within 15 fifteen (15) days after receipt by Parent of the Dispute Notice, Parent and the Securityholders’ Stockholder Representative shall submit the dispute to Parent’s a nationally recognized independent accounting firm mutually agreed upon by Parent and the Stockholder Representative (the “Accountants”). The Accountants shall be directed to act as experts and not arbiters and shall be directed to determine only those items that remain in dispute on the Closing Balance Sheet, and the determination by the Accountants for each disputed item shall be equal to one of the values, or within the range between the values, assigned to such disputed item by Parent and the Stockholder Representative in the materials delivered to the Accountants (or if the materials delivered to the Accountants reflect that either party assigned multiple values at various times, such determination by the Accountants shall be equal to one of, or within the range between, the most recent values assigned by Parent and the Stockholder Representative). Promptly, but no later than 30 sixty (60) days after engagement, the Accountants shall deliver a written report to Parent and the Securityholders’ Stockholder Representative as to the resolution of the disputed items, the resulting Closing Balance Sheet and the resulting calculation of Net Working Capital as of Capital, Transaction Expenses, Indebtedness and Cash. Absent manifest error, the Closing Date. The Closing Balance Sheet as determined by the Accountants shall be deemed the “Final Closing Balance Sheet,” shall be conclusive and binding upon the Securityholders Company Stockholders and Parent and shall not be subject to dispute or review. The fees and expenses of the Accountants in connection with the resolution of disputes pursuant to this Section 3.5(b2.9(b)(ii) shall be paid by (A) by the Securityholders (from the Escrow Fund)Company Stockholders, if Parent’s calculation of the portion of the Closing Net Working Capital in dispute is closer to the Accountants’ determination than the Securityholders’ Stockholder Representative’s calculation thereof, (B) by Parent, if the reverse is true or (C) except as provided in clauses (A) or (B) above, equally by the Securityholders (from the Escrow Fund) Company Stockholders and Parent. Parent and the Securityholders’ Stockholder Representative agree that they will, and agree to cause their respective representatives and independent accountants to to, cooperate and assist in the preparation of the Closing Balance Sheet and in the conduct of the audits and reviews referred to in this Section 3.5(b2.9(b)(ii), including, without limitation, including the making promptly available to the extent necessary of books, records, work papers and personnel. (iii) The Merger If the Base Adjustment Amount is negative and the absolute value of the Base Adjustment Amount is greater than $100,000 (the “Collar”), then the Base Cash Consideration, in accordance with Article I, shall be adjusted downwards by an amount equal to the absolute value of the Base Adjustment Amount minus the Collar (the “Net Adjustment Amount”). If the Base Adjustment Amount is positive, no change to the Base Cash Consideration shall be adjusted, dollar for dollar, up or down, as appropriate, made. The “Base Adjustment Amount” means an amount equal to the extent that sum of (A) the Net Working Capital set forth on the Final Closing Balance Sheet (the “Closing Net Working Capital”) is greater than or less than minus the Estimated Net Working Capital, as applicable(B) the Estimated Transaction Expenses minus the Transaction Expenses set forth on the Final Closing Balance Sheet (the “Closing Transaction Expenses”), (C) the Estimated Indebtedness minus the amount of Indebtedness set forth on the Final Closing Balance Sheet (the “Closing Indebtedness”) and (D) the Cash set forth on the Final Closing Balance Sheet minus the Estimated Cash (the “Closing Cash”). Within ACTIVE/108710474.16 three (3) Business Days following the determination of the Closing Net Working Capital Capital, the Closing Transaction Expenses, the Closing Indebtedness and the Closing Cash in accordance with Section 3.5(b)(ii2.9(b)(ii), (A) if the Closing Net Working Capital Base Adjustment Amount is less negative and the absolute value of the Base Adjustment Amount is greater than the Estimated Net Working CapitalCollar, Parent shall be entitled to first recover from the WC Escrow Fund and the Securityholders’ Representative shall jointly direct the Escrow Agent to pay to Parent then from the Escrow Fund an amount equal to the difference between such amounts and to deliver Net Adjustment Amount (which amount shall be payable by the balance amount, if any, Escrow Agent to Parent within three (3) Business Days of such determination), and (B) if the Closing Net Working Capital Adjustment Amount is greater less than the Estimated amount in the WC Escrow Fund or the Net Working CapitalAdjustment Amount is zero, the Company Stockholders shall be promptly paid the amount remaining in the WC Escrow Fund after any amounts payable to Parent pursuant to clause (A) above have been paid in full, which amount shall deliver or cause to be delivered paid out to the Paying Agent and/or Surviving Company the amount equal to the Closing Net Working Capital minus the Estimated Net Working Capital, and Parent shall cause the Paying Agent and/or Surviving Company to distribute such amount to the Securityholders Stockholders in accordance with the Base Consideration Allocation ScheduleSpreadsheet by the Exchange Agent. The difference between For any release from the Closing Net Working Capital Escrow Fund pursuant to this Section 2.9(b)(iii), shares of Parent Common Stock shall be released ratably in the manner set forth in Section 9.4(e)(i) and in accordance with Section 9.5(b)(iii). Parent and the Estimated Net Working Capital, whether Stockholder Representative shall provide a positive or a negative number, is referred joint written instruction as promptly as possible following such determination to as make the “Final Net Working Capital Adjustment Amountpayments in accordance with this Section 2.9(b)(iii).”

Preparation of Final Closing Balance Sheet. (i) As promptly as practicable, but no later than 60 days after the Closing Date, Parent shall prepare and deliver to the Securityholders’ Representative (A) a balance sheet of the Company as of the close of business on the day immediately prior to the Closing Date, reflecting thereon Parent’s best estimate of the same balance sheet items of the Company as included on the Estimated Closing Balance Sheet but adjusted to take into account the final balances as of the close of business on the day immediately prior to the Closing Date (the “Closing Balance Sheet”) and ), (B) the Net Working Capital of the Company based on the Closing Balance SheetSheet (“Closing Net Working Capital”) and (C) the consolidated Cash of the Company, excluding restricted cash, as of the close of business on the day immediately prior to the Closing Date (“Closing Date Cash”). The Closing Balance Sheet and the Closing Net Working Capital shall be prepared in accordance with GAAP and using the same GAAP accounting principles, practices, methodologies and policies that were used to prepare the Estimated Closing Balance Sheet. (ii) Unless the Securityholders’ Representative deliver delivers the Dispute Notice within 30 days after receipt of the Closing Balance Sheet, including the Closing Net Working Capital and Closing Date Cash, such Closing Balance Sheet shall be deemed the “Final Closing Balance Sheet,” and such Closing Net Working Capital and Closing Date Cash shall be deemed the “Final Closing Net Working Capital” and “Final Closing Date Cash,” respectively, shall be binding upon the Securityholders and Parent and shall not be subject to dispute or review. If the Securityholders’ Representative disagrees with the Closing Balance Sheet, the Closing Net Working Capital or Closing Date Cash, the Securityholders’ Representative may, within 30 days after receipt thereof, notify Parent in writing (the “Dispute Notice”), which Dispute Notice shall provide reasonable detail of the nature of each disputed item on the Closing Balance Sheet, the Closing Net Working Capital and Closing Date Cash, including all supporting documentation thereto, and the Securityholders’ Representative shall be deemed to have agreed with all other items and amounts contained in the Closing Balance Sheet Sheet, the Closing Net Working Capital and Closing Date Cash delivered pursuant to this Section 3.5(b3.4(b). Parent and the Securityholders’ Representative shall first use commercially reasonable efforts to resolve such dispute between themselves and, if Parent and the Securityholders’ Representative are able to resolve such dispute, the Closing Balance Sheet Sheet, the Closing Net Working Capital and the Closing Date Cash shall be revised to the extent necessary to reflect such resolution, shall be deemed the “Final Closing Balance Sheet,” “Final Closing Net Working Capital,” and “Final Closing Date Cash” and shall be conclusive and binding upon the Securityholders and Parent and shall not be subject to dispute or review. If Parent and the Securityholders’ Representative are unable to resolve the dispute within 15 days after receipt by Parent of the Dispute Notice, Parent and the Securityholders’ Representative shall submit the dispute to Parent’s independent accounting firm (the “Accountants”). The Accountants shall act as experts and not arbiters and shall determine only those items that remain in dispute on the Closing Balance Sheet, the Closing Net Working Capital and Closing Date Cash. Promptly, but no later than 30 days after engagement, the Accountants shall deliver a written report to Parent and the Securityholders’ Representative as to the resolution of the disputed items, the resulting Closing Balance Sheet and the resulting calculation of Net Working Capital as of the Closing Date. The Closing Balance Sheet as determined by the Accountants shall be deemed the “Final Closing Balance Sheet,” shall be conclusive and binding upon the Securityholders and Parent and shall not be subject to dispute or review. The fees and expenses of the Accountants in connection with the resolution of disputes pursuant to this Section 3.5(b) shall be paid by (A) the Securityholders (from the Escrow Fund), if Parent’s calculation of the portion of the Closing Net Working Capital in dispute is closer to the Accountants’ determination than the Securityholders’ Representative’s calculation thereof, (B) by Parent, if the reverse is true or (C) except as provided in clauses (A) or (B) above, equally by the Securityholders (from the Escrow Fund) and Parent. Parent and the Securityholders’ Representative agree that they will, and agree to cause their respective representatives and independent accountants to cooperate and assist in the preparation of the Closing Balance Sheet and in the conduct of the audits and reviews referred to in this Section 3.5(b), including, without limitation, the making available to the extent necessary of books, records, work papers and personnel. (iii) The Merger Consideration shall be adjusted, dollar for dollar, up or down, as appropriate, to the extent that the Net Working Capital set forth on the Final Closing Balance Sheet (the “Closing Net Working Capital”) is greater than or less than the Estimated Net Working Capital, as applicable. Within three Business Days following determination of the Closing Net Working Capital in accordance with Section 3.5(b)(ii), (A) if the Closing Net Working Capital is less than the Estimated Net Working Capital, Parent and the Securityholders’ Representative shall jointly direct the Escrow Agent to pay to Parent from the Escrow Fund an amount equal to the difference between such amounts and to deliver the balance amount, if any, to Parent and (B) if the Closing Net Working Capital is greater than the Estimated Net Working Capital, Parent shall deliver or cause to be delivered to the Paying Agent and/or Surviving Company the amount equal to the Closing Net Working Capital minus the Estimated Net Working Capital, and Parent shall cause the Paying Agent and/or Surviving Company to distribute such amount to the Securityholders in accordance with the Base Consideration Allocation Schedule. The difference between the Closing Net Working Capital and Closing Date Cash. The Closing Balance Sheet, the Estimated Net Working Capital, whether a positive or a negative number, is referred to as the “Final Net Working Capital Adjustment Amount.”Closing

Preparation of Final Closing Balance Sheet. (i) As promptly as practicable, but no later than 60 ninety (90) days after the Closing Date, Parent shall prepare and deliver to the Securityholders’ Securityholder Representative (A) a balance sheet of the Company as of the close of business on the earlier of (i) the day immediately prior to the Closing DateDate and (ii) the close of business on October 31, 2014, reflecting thereon Parent’s best estimate determination of the same balance sheet items of the Company as included on the Estimated Closing Balance Sheet but adjusted to take into account the final balances as of the close of business on the earlier of (i) the day immediately prior to the Closing Date and (ii) October 31, 2014 (the “Closing Balance Sheet”) and (B) the Net Working Capital of the Company based on the Closing Balance Sheet. The Closing Balance Sheet shall be prepared in accordance with GAAP and using the same GAAP accounting principles, practices, methodologies and policies that were used to prepare the Estimated Closing Balance Sheet. (ii) Unless the Securityholders’ Securityholder Representative deliver delivers the Dispute Notice within 30 forty‑five (45) days after receipt of the Closing Balance Sheet, such Closing Balance Sheet shall be deemed the “Final Closing Balance Sheet,” shall be binding upon the Company Securityholders and Parent and shall not be subject to dispute or review. If the Securityholders’ Securityholder Representative disagrees with the Closing Balance Sheet, the Securityholders’ Securityholder Representative may, within 30 forty‑five (45) days after receipt thereof, notify Parent in writing (the “Dispute Notice”), which Dispute Notice shall provide reasonable detail of the nature of each disputed item on the Closing Balance Sheet, including all supporting documentation thereto, and the Securityholders’ Securityholder Representative shall be deemed to have agreed with all other items and amounts contained in the Closing Balance Sheet delivered pursuant to this Section 3.5(b2.9(b)(ii). Parent and the Securityholders’ Securityholder Representative shall first use commercially reasonable efforts to resolve such dispute between themselves and, if Parent and the Securityholders’ Securityholder Representative are able to resolve such dispute, the Closing Balance Sheet shall be revised to the extent necessary to reflect such resolution, shall be deemed the “Final Closing Balance Sheet” and shall be conclusive and binding upon the Company Securityholders and Parent and shall not be subject to dispute or review. If Parent and the Securityholders’ Securityholder Representative are unable to resolve the dispute within 15 fifteen (15) days after receipt by Parent of the Dispute Notice, Parent and the Securityholders’ Securityholder Representative shall submit the dispute to Parent’s a nationally recognized independent accounting or financial firm selected by Parent and reasonably approved by the Securityholder Representative (the “Accountants”). The Accountants shall act as experts and not arbiters and shall determine only those items that remain in dispute on the Closing Balance Sheet. Promptly, but no later than 30 thirty (30) days after engagement, the Accountants shall deliver a written report to Parent and the Securityholders’ Securityholder Representative as to the resolution of the disputed items, the resulting Closing Balance Sheet and the resulting calculation of Net Working Capital as of the Closing Date. The Closing Balance Sheet as determined by the Accountants shall be deemed the “Final Closing Balance Sheet,” shall be conclusive and binding upon the Company Securityholders and Parent and shall not be subject to dispute or review. The fees and expenses of the Accountants in connection with the resolution of disputes pursuant to this Section 3.5(b2.9(b)(ii) shall be paid by (A) by the Securityholders (from the Escrow Fund)Company Securityholders, if Parent’s calculation of the portion of the Closing Net Working Capital in dispute is closer to the Accountants’ determination than the Securityholders’ Securityholder Representative’s calculation thereof, (B) by Parent, if the reverse is true or (C) except as provided in clauses (A) or (B) above, equally by the Company Securityholders (from the Escrow Fund) and Parent. Parent and the Securityholders’ Securityholder Representative agree that they will, and agree to cause their respective representatives and independent accountants to cooperate and assist in the preparation of the Closing Balance Sheet and in the conduct of the audits and reviews referred to in this Section 3.5(b2.9(b)(ii), including, without limitation, the making available to the extent necessary of books, records, work papers and personnel. (iii) The Merger Consideration Total Consideration, in accordance with Article I, shall be adjusted, dollar for dollar, up or down, as appropriate, downwards to the extent that the Net Working Capital set forth on the Final Closing Balance Sheet (the “Closing Net Working Capital”) is greater than or less than the Estimated Net Working Capital, as applicable. Within three (3) Business Days following determination of the Closing Net Working Capital in accordance with Section 3.5(b)(ii2.9(b)(ii), (A) if the Closing Net Working Capital is less than the Estimated Net Working Capital, Parent and the Securityholders’ Representative shall jointly direct the Escrow Agent be entitled to pay to Parent recover from the Escrow Fund an amount (or, with respect to Restricted Exchanged Vested Options, cancel a portion of the Restricted Exchanged Vested Options in accordance with the last sentence of Section 9.5(e)(i)) equal to the difference between such amounts and to deliver the balance amountamounts, if any, to Parent and or (B) if the Closing Net Working Capital is greater than the Estimated Net Working Capital, Parent shall deliver or cause to be delivered pay to the Paying Agent and/or Surviving Company the Securityholders an amount equal to the lesser of the difference between such amounts and the difference between the Closing Net Working Capital minus and the Estimated Net Working CapitalCapital Target, and Parent which amount shall cause the Paying Agent and/or Surviving Company to distribute such amount be paid out to the Company Securityholders in accordance with the Base Consideration Allocation ScheduleSpreadsheet. The difference between the Closing Net Working Capital and the Estimated Net Working Capital, whether a positive or a negative number, Capital is referred to as the “Final Net Working Capital Adjustment Amount.”

Preparation of Final Closing Balance Sheet. (i) As promptly as practicable, but no later than 60 ninety (90) days after the Closing Date, Parent shall may, in its sole discretion, prepare and deliver to the Securityholders’ Stockholder Representative a statement setting forth (the “Closing Statement”) (A) a balance sheet of the Company Group as of the close of business 12:01 a.m., Eastern time, on the day immediately prior to the Closing Date, reflecting thereon Parent’s best estimate determination of the same balance sheet items of the Company as included Group on the Estimated Closing Balance Sheet but adjusted to take into account the final balances a consolidated basis as of the close of business 12:01 a.m., Eastern time, on the day immediately prior to the Closing Date (the “Closing Balance Sheet”) ), and (B) the calculations (collectively, the “Closing Calculations”) of (1) the Closing Net Working Capital of the Company based on the Closing Balance SheetSheet (the “Closing Net Working Capital”), (2) the unpaid Transaction Expenses as of immediately prior to the Closing (the “Closing Transaction Expenses”), (3) the unpaid Debt of the Company Group as of immediately prior to the Closing (the “Closing Debt”), and (4) Cash of the Company Group as of immediately prior to the Closing (“Closing Cash”). The Closing Balance Sheet and Closing Calculations shall be prepared and calculated in accordance with GAAP and using the same GAAP accounting principlesAccounting Principles, practicesto the extent such Accounting Principles are in accordance with GAAP. If Parent does not deliver the Closing Balance Sheet and the Closing Calculations within ninety (90) days after the Closing Date, methodologies and policies that were used to prepare then the Estimated Closing Balance Sheet shall be deemed the “Final Closing Balance Sheet” and the Estimated Closing Calculations shall be deemed to have been accepted by Parent and shall be final, binding upon the Company Equityholders and Parent and shall not be subject to dispute or review. (ii) Upon receipt of the Closing Statement, the Stockholder Representative and its accountants will be given reasonable access (including electronic access, as applicable) to the Company’s books, records, calculations, work papers and other documentation of Parent related to the Closing Statement, including but not limited to the individuals responsible for preparing the Closing Statement, as they may reasonably require for the purpose of verifying, and resolving any disputes or responding to any matters or inquiries raised in, the Closing Statement; provided that such access shall be in a manner that does not interfere with the normal business operations of Parent or the Company. (iii) Unless the Securityholders’ Stockholder Representative deliver delivers the Dispute Notice within 30 thirty (30) days after receipt of the Closing Balance SheetSheet and Closing Net Working Capital, such Closing Balance Sheet shall be deemed the “Final Closing Balance Sheet,” and the Closing Calculations and the Adjustment Amount, shall be deemed to have been accepted by the Stockholder Representative, and each shall be binding upon the Securityholders Company Equityholder and Parent and shall not be subject to dispute or review. If the Securityholders’ Stockholder Representative disagrees with the Closing Balance Sheet, the Securityholders’ Closing Calculations or the Adjustment Amount, the Stockholder Representative may, within 30 thirty (30) days after receipt thereof, notify Parent in writing (the “Dispute Notice”), which Dispute Notice shall provide reasonable detail of the nature of each disputed item on the Closing Balance Sheet, including all supporting documentation thereto, and the Securityholders’ Stockholder Representative shall be deemed to have agreed with all other items and amounts contained in the Closing Balance Sheet delivered pursuant to this Section 3.5(b2.15(b)(iii). Parent and the Securityholders’ Stockholder Representative shall first use commercially reasonable efforts to resolve such dispute between themselves in good faith, and, if Parent and the Securityholders’ Stockholder Representative are able to resolve such dispute, the Closing Balance Sheet shall be revised to the extent necessary to reflect such resolution, shall be deemed the “Final Closing Balance Sheet” ”, and shall be conclusive and binding upon the Securityholders Company Equityholders and Parent and shall not be subject to dispute or review, and the Closing Calculations and the Adjustment Amount as revised shall be conclusive and binding upon the Company Equityholders and Parent and shall not be subject to dispute or review. If Parent and the Securityholders’ Stockholder Representative are unable to resolve the dispute within 15 fifteen (15) days (or such longer period as Parent and the Stockholder Representative mutually agree) after receipt by Parent of the Dispute Notice, Parent and the Securityholders’ Stockholder Representative shall submit the dispute to Parent’s a nationally recognized independent accounting firm selected by Parent and the Stockholder Representative which shall not have been engaged for any material matter, directly or indirectly, by any party hereto within the preceding two (2) years (the “Accountants”). The Accountants shall be directed to act as experts and not arbiters and shall be directed to determine only those items that remain in dispute on the Closing Balance Sheet, the Closing Calculations and the Adjustment Amount, in each case in accordance with GAAP and the Accounting Principles, to the extent such Accounting Principles are in accordance with GAAP. Each of Parent and the Stockholder Representative shall furnish to the Accountants such workpapers and other documents and information relating to such objections as the Accountants may reasonably request and are available to that party or its Affiliates (or its independent public accountants) and will be afforded the opportunity to present to the Accountants any material relating to the determination of the matters in dispute and to discuss such determination with the Accountants. Each of Parent and the Stockholder Representative shall assign a value to each disputed item and the Accountants shall determine each disputed item separately (based on the determination that most closely complies with the terms of this Agreement), but shall not assign a value to any disputed item that is greater than the greatest value for such disputed item assigned to it by either party or less than the smallest value for such disputed item assigned to it by either party. Promptly, but no later than 30 thirty (30) days after engagement, the Accountants shall deliver a written report to Parent and the Securityholders’ Stockholder Representative as to the resolution of the disputed items, the resulting Closing Balance Sheet and the resulting calculation of Net Working Capital as of the Closing Date. The Closing Final Balance Sheet as determined by the Accountants shall be deemed the “Final Closing Balance Sheet,” shall be conclusive and binding upon the Securityholders Company Equityholders and Parent and shall not be subject to dispute or review, and the resulting Closing Calculations and the resulting Adjustment Amount as revised shall be conclusive and binding upon the Company Equityholders and Parent and shall not be subject to dispute or review. The fees and expenses of the Accountants in connection with the resolution of disputes pursuant to this Section 3.5(b2.15(b)(iii) shall be paid by borne pro rata as between Parent and the Stockholder Representative (A) the Securityholders (from the Escrow Fund), if Parent’s calculation on behalf of the portion Company Equityholders) as a Transaction Expense, in proportion to the allocation of the Closing Net Working Capital dollar value of the amounts in dispute is closer as between Parent and the Stockholder Representative (set forth in the written submissions to the Accountants’ determination than ) made by the Securityholders’ Representative’s calculation thereof, (B) by ParentAccountants such that the party prevailing on the greater dollar value of such disputes pays the less proportion of the fees and expenses. For example, if the reverse is true or Stockholder Representative challenges items in the net amount of $1,000,000 and the Accountants determine that Parent has a valid claim for $400,000 of the $1,000,000, Parent shall bear sixty percent (C60%) except of the fees and expenses of the Accountants and the Stockholder Representative (on behalf of the Company Equityholders) shall bear the remaining forty percent (40%) of the fees and expenses of the Accountants as provided in clauses (A) or (B) above, equally by the Securityholders (from the Escrow Fund) and Parenta Transaction Expense. Parent and the Securityholders’ Stockholder Representative agree that they will, and agree to cause their respective representatives and independent accountants to to, cooperate and assist in the preparation of the Closing Balance Sheet and in the conduct of the audits and reviews referred to in this Section 3.5(b2.15(b)(iii), including, without limitation, including the making promptly available to the extent necessary of books, records, work papers and personnel. (iiiiv) The Merger Consideration Base Cash Consideration, shall be adjusted, dollar for dollar, up or down, as appropriate, downwards to the extent that the Net Working Capital set forth on Adjustment Amount is negative and upwards to the Final Closing Balance Sheet (extent the Adjustment Amount is positive. The “Closing Net Working Capital”) is greater than or less than the Estimated Net Working Capital, as applicable. Within three Business Days following determination of the Closing Net Working Capital in accordance with Section 3.5(b)(ii), (A) if the Closing Net Working Capital is less than the Estimated Net Working Capital, Parent and the Securityholders’ Representative shall jointly direct the Escrow Agent to pay to Parent from the Escrow Fund Adjustment Amount” means an amount equal to the sum of (A) the difference between such amounts and to deliver the balance amount, if any, to Parent and (B) if the Closing Net Working Capital is greater than the Estimated Net Working Capital, Parent shall deliver or cause to be delivered to the Paying Agent and/or Surviving Company the amount equal to the Closing Net Working Capital minus the Estimated Net Working Capital, (B) the Estimated Transaction Expenses minus the Closing Transaction Expenses set forth on the Final Closing Balance Sheet, (C) the Estimated Debt minus the amount the Closing Debt set forth on the Final Closing Balance Sheet and Parent shall cause (D) the Paying Agent and/or Surviving Company to distribute such amount to Closing Cash set forth on the Securityholders Final Closing Balance Sheet minus the Estimated Cash. Within five (5) Business Days following the determination of the Closing Calculations in accordance with Section 2.15(b)(iii), (x) if the Base Adjustment Amount is negative, Parent shall be entitled to first recover from the Adjustment Escrow Fund and then, to the extent necessary, at Parent’s option, either from the Indemnification Escrow Fund or directly from the Company Equityholders based on their Pro Rata Shares as set forth on the Merger Consideration Allocation Schedule. The difference between Spreadsheet, a total amount equal to the Closing Net Working Capital absolute value of the Adjustment Amount (which amount shall be payable by the Escrow Agent to Parent within five (5) Business Days of such determination), and any amounts in the Estimated Net Working CapitalAdjustment Escrow Fund after any amounts payable to Parent pursuant to this clause (x) have been paid in full be released to the Payments Administrator for distribution to the Company Equityholders in accordance with their Pro Rata Share; and (y) if the Adjustment Amount is positive, whether Parent shall make a positive or a negative number, is referred cash payment to as the “Final Net Working Capital Payments Administrator in the amount of the Adjustment AmountAmount for distribution to the Company Equityholders in accordance with their Pro Rata Share and any amounts in the Adjustment Escrow Fund shall be released to the Payments Administrator for distribution to the Company Equityholders in accordance with their Pro Rata Share.”

Preparation of Final Closing Balance Sheet. (i) As promptly as practicable, but no later than 60 seventy-five (75) days after the Closing Date, Parent shall prepare and deliver to the SecurityholdersStockholders’ Representative Representative, (A) a balance sheet of the Company as of the close of business on the day immediately prior to the Closing Date, reflecting thereon Parent’s best estimate of the same balance sheet items of the Company as included on the Estimated Closing Balance Sheet but adjusted to take into account the final balances as of the close of business on the day immediately prior to the Closing Date (the “Closing Balance Sheet”) and (B) the Net Working Operating Capital of the Company based on the Closing Balance Sheet. The Closing Balance Sheet shall be prepared in accordance with GAAP and using the same GAAP accounting principles, practices, methodologies and policies that were used to prepare the Estimated Closing Balance Sheet. (ii) Unless the SecurityholdersStockholders’ Representative deliver delivers the Dispute Notice within 30 forty-five (45) days after receipt of the Closing Balance SheetSheet or if the Stockholders’ Representative notifies Parent that the Closing Balance Sheet is acceptable, such Closing Balance Sheet shall be deemed the “Final Closing Balance Sheet,” shall be binding upon the Securityholders Stockholders and Parent and shall not be subject to dispute or review. If the SecurityholdersStockholders’ Representative disagrees with the Closing Balance Sheet, the SecurityholdersStockholders’ Representative may, within 30 forty-five (45) days after receipt thereof, notify Parent in writing (the “Dispute Notice”), which Dispute Notice shall provide reasonable detail of the nature of each disputed item on the Closing Balance Sheet, including all supporting documentation thereto, and the SecurityholdersStockholders’ Representative shall be deemed to have agreed with all other items and amounts contained in the Closing Balance Sheet delivered pursuant to this Section 3.5(b3.6(b). Parent and the SecurityholdersStockholders’ Representative shall first use commercially reasonable efforts to resolve such dispute between themselves and, if Parent and the SecurityholdersStockholders’ Representative are able to resolve such dispute, the Closing Balance Sheet shall be revised to the extent necessary to reflect such resolution, shall be deemed the “Final Closing Balance Sheet” and shall be conclusive and binding upon the Securityholders Stockholders and Parent and shall not be subject to dispute or review. If Parent and the SecurityholdersStockholders’ Representative are unable to resolve the dispute within 15 fifteen (15) days after receipt by Parent of the Dispute Notice, Parent and the SecurityholdersStockholders’ Representative shall submit the dispute to Parent’s a mutually acceptable independent accounting firm (the “Accountants”). The Accountants shall act as experts and not arbiters and shall determine only those items that remain in dispute on the Closing Balance Sheet. Promptly, but no later than 30 thirty (30) days after engagement, the Accountants shall deliver a written report to Parent and the SecurityholdersStockholders’ Representative as to the resolution of the disputed items, the resulting Closing Balance Sheet and the resulting calculation of Net Working Operating Capital as of the Closing Date. The Closing Balance Sheet as determined by the Accountants shall be deemed the “Final Closing Balance Sheet,” shall be conclusive and binding upon the Securityholders Stockholders and Parent and shall not be subject to dispute or review. The fees and expenses of the Accountants in connection with the resolution of disputes pursuant to this Section 3.5(b3.6(b) shall be paid by (A) the Securityholders Stockholders (from the Escrow FundAmount), if Parent’s calculation of the portion of the Closing Net Working Operating Capital in dispute is closer to the Accountants’ determination than the SecurityholdersStockholders’ Representative’s calculation thereof, or (B) by Parent, if the reverse is true or and (C) except as provided in clauses (A) or (B) above, equally by the Securityholders Stockholders (from the Escrow FundAmount) and Parent. Parent and the SecurityholdersStockholders’ Representative agree that they will, and agree to cause their respective representatives and independent accountants and the Company to cooperate and assist in the preparation of the Closing Balance Sheet and in the conduct of the audits and reviews referred to in this Section 3.5(b3.6(b), including, including without limitation, the making available to the extent necessary of books, records, work papers and personnel. (iii) The Merger Consideration shall be adjusted, dollar for dollar, up or down, as appropriate, to the extent that the Net Working Operating Capital set forth on the Final Closing Balance Sheet (the “Closing Net Working Operating Capital”) is greater than or less than the Estimated Net Working Operating Capital, as applicable. Within three Business Days (3) business days following determination of the Closing Net Working Operating Capital in accordance with Section 3.5(b)(ii3.6(b)(ii), (A) if the Closing Net Working Operating Capital is less than the Estimated Net Working Operating Capital, Parent and the SecurityholdersStockholders’ Representative shall jointly direct the Escrow Agent to pay to Parent from the Escrow Fund Amount an amount equal to the difference between such amounts and to deliver the balance amount, if any, to the Paying Agent, and Parent shall cause the Paying Agent to distribute such balance amount to the Stockholders in accordance with the Escrow Allocation Schedule and (B) if the Closing Net Working Operating Capital is greater than the Estimated Net Working Operating Capital, Parent shall deliver or cause to be delivered to the Paying Agent and/or Surviving Company the amount equal to the Closing Net Working Capital minus the Estimated Net Working Capitaldifference between such amounts, and Parent shall cause the Paying Agent and/or Surviving Company to distribute such amount to the Securityholders Stockholders in accordance with the Base Consideration Escrow Allocation Schedule. To the extent any Stockholder has already received payment for its shares of Company Stock, the Paying Agent shall promptly distribute to such Stockholder his, her or its allocation of the Final Operating Capital Adjustment Amount due. If a Stockholder has not received payment for its shares of Company Stock, the amount to be paid to such Stockholder in accordance with Section 3.1 shall be appropriately increased pursuant to this Section 3.6(b)(iii). Any payment pursuant to clause (A) or (B) shall be in United States dollars and by wire transfer of immediately available funds. The difference between the Closing Net Working Operating Capital and the Estimated Net Working Operating Capital, whether a positive or a negative number, is referred to as the “Final Net Working Operating Capital Adjustment Amount.”

Preparation of Final Closing Balance Sheet. (i) As promptly as practicable, but no later than 60 one hundred twenty (120) days after the Closing Date, Parent shall prepare and deliver to the Securityholders’ Securityholder Representative (A) a balance sheet of the Company as of the close of business on the day Business Day immediately prior to preceding the Closing Date, reflecting thereon Parent’s best estimate determination of the same balance sheet items of the Company as included and its Subsidiaries on the Estimated Closing Balance Sheet but adjusted to take into account the final balances a consolidated basis as of the close of business on the day Business Day immediately prior to preceding the Closing Date (the “Closing Balance Sheet”) and ), (B) the Net Working Capital of the Company based on the Closing Balance Sheet. The Closing Balance Sheet shall be prepared in accordance with GAAP , (C) the unpaid Transaction Expenses as of immediately prior to the Closing, (D) the unpaid Indebtedness of the Company and using its Subsidiaries as of immediately prior to the same GAAP accounting principlesClosing, practices, methodologies and policies that were used to prepare the Estimated Closing Balance Sheet(E) Cash. (ii) Unless the Securityholders’ Securityholder Representative deliver delivers the Dispute Notice within 30 forty-five (45) days after receipt of the Closing Balance Sheet, such Closing Balance Sheet shall be deemed the “Final Closing Balance Sheet,” shall be binding upon the Company Securityholders and Parent and shall not be subject to dispute or review. If the Securityholders’ Securityholder Representative disagrees with the Closing Balance Sheet, the Securityholders’ Securityholder Representative may, within 30 forty-five (45) days after receipt thereof, notify Parent in writing (the “Dispute Notice”), which Dispute Notice shall provide reasonable detail of the nature of each disputed item on the Closing Balance Sheet, including all supporting documentation thereto, and the Securityholders’ Securityholder Representative shall be deemed to have agreed with all other items and amounts contained in the Closing Balance Sheet delivered pursuant to this Section 3.5(b2.9(b)(ii). Parent and the Securityholders’ Securityholder Representative shall first use commercially reasonable efforts to resolve such dispute between themselves and, if Parent and the Securityholders’ Securityholder Representative are able to resolve such dispute, the Closing Balance Sheet shall be revised to the extent necessary to reflect such resolution, shall be deemed the “Final Closing Balance Sheet” and shall be conclusive and binding upon the Company Securityholders and Parent and shall not be subject to dispute or review. If Parent and the Securityholders’ Securityholder Representative are unable to resolve the dispute within 15 fifteen (15) days after receipt by Parent of the Dispute Notice, Parent and the Securityholders’ Securityholder Representative shall submit the dispute to Parent’s a nationally recognized independent accounting firm selected by Parent and the Securityholder Representative which shall not have been engaged for any material matter, directly or indirectly, by any party hereto within the preceding two years (the “Accountants”). The Accountants shall be directed to act as experts and not arbiters and shall be directed to determine only those items that remain in dispute on the Closing Balance Sheet. Each of Parent and the Securityholder Representative shall furnish to the Accountants such workpapers and other documents and information relating to such objections as the Accountants may reasonably request and are available to that party or its Affiliates (or its independent public accountants) and will be afforded the opportunity to present to the Accountants any material relating to the determination of the matters in dispute and to discuss such determination with the Accountants. Each of Parent and the Securityholder Representative shall assign a value to each disputed item and the Accountants shall determine each disputed item separately (based on the determination that most closely complies with the terms of this Agreement), but shall not assign a value to any disputed item that is greater than the greatest value for such disputed item assigned to it by either party or less than the smallest value for such disputed item assigned to it by either party. Promptly, but no later than 30 thirty (30) days after engagement, the Accountants shall deliver a written report to Parent and the Securityholders’ Securityholder Representative as to the resolution of the disputed items, the resulting Closing Balance Sheet and the resulting calculation of Net Working Capital as of the Closing DateCapital, Transaction Expenses, Indebtedness and Cash. The Closing Balance Sheet as determined by the Accountants shall be deemed the “Final Closing Balance Sheet,” shall be conclusive and binding upon the Company Securityholders and Parent and shall not be subject to dispute or review. The fees and expenses of the Accountants in connection with the resolution of disputes pursuant to this Section 3.5(b2.9(b)(ii) shall be paid by (A) by the Securityholders (from the Escrow Fund)Company Securityholders, if Parent’s calculation of the portion of the Closing Net Working Capital in dispute is closer to the Accountants’ determination than the Securityholders’ Securityholder Representative’s calculation thereof, (B) by Parent, if the reverse is true or (C) except as provided in clauses (A) or (B) above, equally by the Company Securityholders (from the Escrow Fund) and Parent. Parent and the Securityholders’ Securityholder Representative agree that they will, and agree to cause their respective representatives and independent accountants to to, cooperate and assist in the preparation of the Closing Balance Sheet and in the conduct of the audits and reviews referred to in this Section 3.5(b2.9(b)(ii), including, without limitation, including the making promptly available to the extent necessary of books, records, work papers and personnel. (iii) The Merger Consideration Base Cash Consideration, in accordance with Article I, shall be adjusted, dollar for dollar, up or down, as appropriate, downwards to the extent that the Adjustment Amount is negative and upwards to the extent the Adjustment Amount is positive. The “Adjustment Amount” means an amount equal to the sum of (A) the Net Working Capital set forth on the Final Closing Balance Sheet (the “Closing Net Working Capital”) is greater than or less than minus the Estimated Net Working Capital, as applicable(B) the Estimated Transaction Expenses minus the Transaction Expenses set forth on the Final Closing Balance Sheet (the “Closing Transaction Expenses”), (C) the Estimated Indebtedness minus the amount the Indebtedness set forth on the Final Closing Balance Sheet (the “Closing Indebtedness”) and (D) the Cash set forth on the Final Closing Balance Sheet (the “Closing Cash”) minus the Estimated Cash. Within three (3) Business Days following the determination of the Closing Net Working Capital Capital, the Closing Transaction Expenses, the Closing Indebtedness and the Closing Cash in accordance with Section 3.5(b)(ii2.9(b)(ii), (A) if the Closing Net Working Capital Adjustment Amount is less than the Estimated Net Working Capitalnegative, Parent shall be entitled to first recover from the WC Escrow Fund and then, to the Securityholders’ Representative extent necessary, from the Escrow Fund a total amount equal to the absolute value of the Adjustment Amount (which amount shall jointly direct be payable by the Escrow Agent to pay to Parent from the Escrow Fund an amount equal to the difference between within three (3) Business Days of such amounts and to deliver the balance amountdetermination), if any, to Parent and (B) if the Closing Net Working Capital is greater than amount remaining in the Estimated Net Working CapitalWC Escrow Fund after any amounts payable to Parent pursuant to clause (A) above have been paid in full exceeds $2,000,000 (the “EC Special Escrow Cap”), Parent the Company Securityholders shall deliver be promptly paid in cash his or cause to her Pro Rata Share of the Adjustment Amount from any amount remaining in the WC Escrow Fund in excess of the EC Special Escrow Cap, which amount shall be delivered paid out to the Paying Agent and/or Surviving Company the amount equal to the Closing Net Working Capital minus the Estimated Net Working Capital, and Parent shall cause the Paying Agent and/or Surviving Company to distribute such amount to the Securityholders in accordance with the Base Consideration Allocation ScheduleSpreadsheet by Parent and (C) any amounts in the WC Escrow Fund after any amounts payable to Parent pursuant to clause (A) above have been paid in full shall remain in the WC Escrow Fund until such amounts are released to a Parent Indemnified Party or the Company Securityholders in accordance with Section 9.4(e)(iv). The difference between For any release from the Closing Net Working Capital Escrow Fund to Parent pursuant to this Section 2.9(b)(iii), cash and shares of Parent Common Stock shall be released ratably in the manner set forth in Section 9.4(e)(i) and in accordance with Section 9.5(b)(iii). Parent and the Estimated Net Working Capital, whether Securityholder Representative shall provide a positive or a negative number, is referred joint written instruction as promptly as possible following such determination to as make the “Final Net Working Capital Adjustment Amountpayments in accordance with this Section 2.9(b)(iii).”

Preparation of Final Closing Balance Sheet. (i) As promptly as practicable, but no later than 60 90 days after the Closing Date, Parent shall prepare and deliver to the Securityholders’ Representative Representatives (A) a balance sheet of the Company as of the close of business on the day immediately prior to the Closing Date, reflecting thereon Parent’s best estimate of the same balance sheet items of the Company as included on the Estimated Closing Balance Sheet but adjusted to take into account the final balances as of the close of business on the day immediately prior to the Closing Date (the “Closing Balance Sheet”) and (B) the Net Working Capital of the Company based on the Closing Balance Sheet. The Closing Balance Sheet shall be prepared in accordance with GAAP and using the same GAAP accounting principles, practices, methodologies and policies that were used to prepare the Estimated Closing Balance Sheet. (ii) Unless the Securityholders’ Representative Representatives deliver the Dispute Notice within 30 days after receipt of the Closing Balance Sheet, such Closing Balance Sheet shall be deemed the “Final Closing Balance Sheet,” shall be binding upon the Securityholders and Parent and shall not be subject to dispute or review. If the Securityholders’ Representative disagrees Representatives disagree with the Closing Balance Sheet, the Securityholders’ Representative Representatives may, within 30 days after receipt thereof, notify Parent in writing (the “Dispute Notice”), which Dispute Notice shall provide reasonable detail of the nature of each disputed item on the Closing Balance Sheet, including all supporting documentation thereto, and the Securityholders’ Representative Representatives shall be deemed to have agreed with all other items and amounts contained in the Closing Balance Sheet delivered pursuant to this Section 3.5(b). Parent and the Securityholders’ Representative Representatives shall first use commercially reasonable efforts to resolve such dispute between themselves and, if Parent and the Securityholders’ Representative Representatives are able to resolve such dispute, the Closing Balance Sheet shall be revised to the extent necessary to reflect such resolution, shall be deemed the “Final Closing Balance Sheet” and shall be conclusive and binding upon the Securityholders and Parent and shall not be subject to dispute or review. If Parent and the Securityholders’ Representative Representatives are unable to resolve the dispute within 15 days after receipt by Parent of the Dispute Notice, Parent and the Securityholders’ Representative Representatives shall submit the dispute to Parent’s a mutually acceptable independent accounting firm (the “Accountants”). The Accountants shall act as experts and not arbiters and shall determine only those items that remain in dispute on the Closing Balance Sheet. Promptly, but no later than 30 days after engagement, the Accountants shall deliver a written report to Parent and the Securityholders’ Representative Representatives as to the resolution of the disputed items, the resulting Closing Balance Sheet and the resulting calculation of Net Working Capital as of the Closing Date. The Closing Balance Sheet as determined by the Accountants shall be deemed the “Final Closing Balance Sheet,” shall be conclusive and binding upon the Securityholders and Parent and shall not be subject to dispute or review. The fees and expenses of the Accountants in connection with the resolution of disputes pursuant to this Section 3.5(b) shall be paid by (A) the Securityholders (from the Escrow Fund), if Parent’s calculation of the portion of the Closing Net Working Capital in dispute is closer to the Accountants’ determination than the Securityholders’ Representative’s Representatives’ calculation thereof, (B) by Parent, if the reverse is true or (C) except as provided in clauses (A) or (B) above, equally by the Securityholders (from the Escrow Fund) and Parent. Parent and the Securityholders’ Representative Representatives agree that they will, and agree to cause their respective representatives and independent accountants to cooperate and assist in the preparation of the Closing Balance Sheet and in the conduct of the audits and reviews referred to in this Section 3.5(b), including, without limitation, the making available to the extent necessary of books, records, work papers and personnel. (iii) The Merger Consideration shall be adjusted, dollar for dollar, up or down, as appropriate, to the extent that the Net Working Capital set forth on the Final Closing Balance Sheet Net Working Capital Calculation (the “Closing Net Working Capital”) is greater than or less than the Estimated Net Working Capital, as applicable. Within three Business Days following determination of the Closing Net Working Capital in accordance with Section 3.5(b)(ii), (A) if the Closing Net Working Capital is less than the Estimated Net Working Capital, Parent and the Securityholders’ Representative Representatives shall jointly direct the Escrow Agent to pay to Parent from the Escrow Fund an amount equal to the difference between such amounts and to deliver the balance amount, if any, to Parent and (B) if the Closing Net Working Capital is greater than the Estimated Net Working Capital, Parent shall deliver or cause to be delivered to the Paying Agent and/or Surviving Company the amount equal to the Closing Net Working Capital minus the Estimated Net Working Capital, and Parent shall cause the Paying Agent and/or Surviving Company to distribute such amount to the Securityholders and Triple Tree, LLC in accordance with the Base Consideration Allocation Schedule. The difference between the Closing Net Working Capital and the Estimated Net Working Capital, whether a positive or a negative number, is referred to as the “Final Net Working Capital Adjustment Amount.”

Preparation of Final Closing Balance Sheet. (i) As promptly as practicable, but no later than 60 ninety (90) days after the Closing Date, Parent shall prepare and deliver to the Securityholders’ Representative (A) a balance sheet of the Company as of the close of business 11:59 pm (Boston time) on the day immediately prior to the Closing Date, reflecting thereon Parent’s best estimate of the same balance sheet items of the Company Company, including the Return Reserve Amount and reserves against gross accounts receivable for Customer Deductions and Customer Programs, as included on the Estimated Closing Balance Sheet but adjusted to take into account the final balances as of the close of business 11:59 pm (Boston time) on the day immediately prior to the Closing Date (the “Closing Balance Sheet”) and ), (B) the Net Working Capital of the Company based on the Closing Balance SheetSheet and (C) the cash and cash equivalents of the Company immediately prior to the Effective Time based on the Closing Balance Sheet (the “Closing Cash Amount”). The Closing Balance Sheet shall be prepared in accordance with GAAP and using the same GAAP accounting principles, practices, methodologies and policies that were used to prepare the Estimated Closing Balance Sheet. (ii) Unless the Securityholders’ Representative deliver delivers the Dispute Notice within 30 thirty (30) days after receipt of the Closing Balance Sheet, such Closing Balance Sheet shall be deemed the “Final Closing Balance Sheet,” shall be binding upon the Securityholders and Parent and shall not be subject to dispute or review. If the Securityholders’ Representative disagrees with the Closing Balance Sheet, the Securityholders’ Representative may, within 30 thirty (30) days after receipt thereof, notify Parent in writing (the “Dispute Notice”), which Dispute Notice shall provide reasonable detail of the nature of each disputed item on the Closing Balance Sheet, including all supporting documentation thereto, and the Securityholders’ Representative shall be deemed to have agreed with all other items and amounts contained in the Closing Balance Sheet delivered pursuant to this Section 3.5(b). Parent and the Securityholders’ Representative shall first use commercially reasonable efforts to resolve such dispute between themselves and, if Parent and the Securityholders’ Representative are able to resolve such dispute, the Closing Balance Sheet Sheet, including Closing Cash Amount and the Return Reserve Amount shall be revised to the extent necessary to reflect such resolution, shall be deemed the “Final Closing Balance Sheet” and shall be conclusive and binding upon the Securityholders and Parent and shall not be subject to dispute or review. If Parent and the Securityholders’ Representative are unable to resolve the dispute within 15 fifteen (15) days after receipt by Parent of the Dispute Notice, Parent and the Securityholders’ Representative shall submit the dispute to Parent’s independent accounting firm Ernst & Young LLP (the “Accountants”). The Accountants shall act as experts and not arbiters and shall determine only those items items, including the Return Reserve Amount and Closing Cash Amount, that remain in dispute on the Closing Balance Sheet. Promptly, but no later than 30 thirty (30) days after engagement, the Accountants shall deliver a written report to Parent and the Securityholders’ Representative as to the resolution of the disputed items, the resulting Closing Balance Sheet and the resulting calculation of the Return Reserve Amount and Net Working Capital and Closing Cash Amount as of the Closing Date. The Closing Balance Sheet as determined by the Accountants shall be deemed the “Final Closing Balance Sheet,” including the Return Reserve Amount and Closing Cash Amount shown thereon, shall be conclusive and binding upon the Securityholders and Parent and shall not be subject to dispute or review. The fees and expenses of the Accountants in connection with the resolution of disputes pursuant to this Section 3.5(b) shall be paid by (A) the Securityholders (first, from the Working Capital Escrow Fund, to the extent any funds remain following any payments to Parent required under Section 3.5(b)(iii), next, from the Securityholders’ Representative Reimbursement Amount until such funds are depleted, and the balance, if any, from the Indemnification Escrow Fund), if Parent’s calculation of the portion of the Closing Net Working Capital and Cash in dispute is closer to the Accountants’ determination than the Securityholders’ Representative’s calculation thereof, (B) by Parent, if the reverse is true or (C) except as provided in clauses (A) or (B) above, equally by the Securityholders (first, from the Working Capital Escrow Fund, to the extent any funds remain following any payments to Parent required under Section 3.5(b)(iii), next, from the Securityholders’ Representative Reimbursement Amount until such funds are depleted, and the balance, if any, from the Indemnification Escrow Fund) and Parent. Parent and the Securityholders’ Representative agree that they will, and agree to cause their respective representatives and independent accountants to cooperate and assist in the preparation of the Closing Balance Sheet and in the conduct of the audits and reviews referred to in this Section 3.5(b), including, without limitation, the making available to the extent necessary of books, records, work papers and personnel. (iii) The Merger Consideration shall be adjusted, dollar for dollar, up or down, as appropriate, to the extent that (A) the Net Working Capital set forth on the Final Closing Balance Sheet plus the cash and cash equivalents of the Company set forth on the Final Closing Balance Sheet (collectively, the “Closing Net Working CapitalCapital and Cash”) is greater than or less than (B) the Estimated Net Working CapitalCapital plus the Estimated Cash Amount (collectively, the “Estimated Net Working Capital and Cash”), as applicable. Within three five (5) Business Days following determination of the Closing Net Working Capital and Cash and in accordance with Section 3.5(b)(ii), (A) if the Closing Net Working Capital and Cash is less than the Estimated Net Working CapitalCapital and Cash, Parent and the Securityholders’ Representative shall jointly direct the Escrow Agent to pay to Parent from the Working Capital Escrow Fund an amount equal to the difference between such amounts (the “Final Net Working Capital and Cash Shortfall”). In the event that the Final Net Working Capital and Cash Shortfall exceeds the Working Capital Escrow Amount, Parent and the Securityholders’ Representative shall jointly direct the Escrow Agent to deliver the balance amount, if any, pay to Parent and from the Indemnification Escrow Fund an amount equal to such difference within five (B5) if Business Days following determination of the Closing Net Working Capital is greater than and Cash in accordance with Section 3.5(b)(ii). In the Estimated event that the Working Capital Escrow Amount exceeds the Final Net Working CapitalCapital and Cash Shortfall, Parent and the Securityholders’ Representative shall jointly direct the Escrow Agent to deliver or cause to be delivered to the Paying Agent and/or Surviving Company from the Working Capital Escrow Fund an amount equal to the Closing Net Working Capital minus the Estimated Net Working Capitalsuch difference, and Parent shall cause the Paying Agent and/or Surviving Company to distribute such amount to the Securityholders in accordance with the Base Consideration Allocation Schedule. The difference between Within five (5) Business Days following determination of the Closing Net Working Capital and Cash in accordance with Section 3.5(b)(ii), if the Closing Net Working Capital and Cash is greater than the Estimated Net Working CapitalCapital and Cash, whether a positive (A) Parent shall deliver or a negative number, is referred cause to as be delivered to the “Final Paying Agent and/or Surviving Company the amount equal to the Closing Net Working Capital Adjustment Amountand Cash minus the Estimated Net Working Capital and Cash, and Parent shall cause the Paying Agent and/or the Surviving Company to distribute such amount to the Securityholders in accordance with the Base Consideration Allocation Schedule and (B) Parent and the Securityholders’ Representative shall jointly direct the Escrow Agent to deliver to the Paying Agent and/or Surviving Company all amounts in the Working Capital Escrow Fund, and Parent shall cause the Paying Agent and/or Surviving Company to distribute such amount to the Securityholders in accordance with the Base Consideration Allocation Schedule.”

Preparation of Final Closing Balance Sheet. (i) As promptly as practicable, but no later than 60 45 days after the Closing Date, Parent shall prepare and deliver to the Securityholders’ Members Representative (A) a balance sheet of the Company as of the close of business on the day immediately prior to the Closing Date, reflecting thereon Parent’s best estimate of the same balance sheet items of the Company as included on the Estimated Closing Balance Sheet but adjusted to take into account the final balances as of the close of business on the day immediately prior to the Closing Date (the “Closing Balance Sheet”) and (B) the Net Working Capital of the Company based on the Closing Balance Sheet. The Closing Balance Sheet shall be prepared in accordance with GAAP and using the same GAAP accounting principles, practices, methodologies and policies that were used to prepare the Estimated Closing Balance Sheet. (ii) Unless the Securityholders’ Members Representative deliver delivers the Dispute Notice within 30 days after receipt of the Closing Balance Sheet, such Closing Balance Sheet shall be deemed the “Final Closing Balance Sheet,” shall be binding upon the Securityholders Equityholders and Parent and shall not be subject to dispute or review. If the Securityholders’ Members Representative disagrees with the Closing Balance Sheet, the Securityholders’ Members Representative may, within 30 days after receipt thereof, notify Parent in writing (the “Dispute Notice”), which Dispute Notice shall provide reasonable detail of the nature of each disputed item on the Closing Balance Sheet, including all supporting documentation thereto, and the Securityholders’ Members Representative shall be deemed to have agreed with all other items and amounts contained in the Closing Balance Sheet delivered pursuant to this Section 3.5(b3.3(b). Parent and the Securityholders’ Members Representative shall first use commercially reasonable efforts to resolve such dispute between themselves and, if Parent and the Securityholders’ Members Representative are able to resolve such dispute, the Closing Balance Sheet shall be revised to the extent necessary to reflect such resolution, shall be deemed the “Final Closing Balance Sheet” and shall be conclusive and binding upon the Securityholders Equityholders and Parent and shall not be subject to dispute or review. If Parent and the Securityholders’ Members Representative are unable to resolve the dispute within 15 days after receipt by Parent of the Dispute Notice, Parent and the Securityholders’ Members Representative shall submit the dispute to Parent’s a mutually acceptable independent accounting firm (the “Accountants”). The Accountants shall act as experts and not arbiters and shall determine only those items that remain in dispute on the Closing Balance Sheet. Promptly, but no later than 30 days after engagement, the Accountants shall deliver a written report to Parent and the Securityholders’ Members Representative as to the resolution of the disputed items, the resulting Closing Balance Sheet and the resulting calculation of Net Working Capital as of the Closing Date. The Closing Balance Sheet as determined by the Accountants shall be deemed the “Final Closing Balance Sheet,” shall be conclusive and binding upon the Securityholders Equityholders and Parent and shall not be subject to dispute or review. The fees and expenses of the Accountants in connection with the resolution of disputes pursuant to this Section 3.5(b3.3(b) shall be paid by (A) the Securityholders Equityholders (from the Escrow FundAmount), if Parent’s calculation of the portion of the Closing Net Working Capital in dispute is closer to the Accountants’ determination than the Securityholders’ Members Representative’s calculation thereof, (B) by Parent, if the reverse is true or (C) except as provided in clauses (A) or (B) above, equally by the Securityholders Equityholders (from the Escrow FundAmount) and Parent. Parent and the Securityholders’ Members Representative agree that they will, and agree to cause their respective representatives and independent accountants to cooperate and assist in the preparation of the Closing Balance Sheet and in the conduct of the audits and reviews referred to in this Section 3.5(b3.3(b), including, without limitation, the making available to the extent necessary of books, records, work papers and personnel. (iii) The Merger Consideration shall be adjusted, dollar for dollar, up or down, as appropriate, to the extent that the Net Working Capital set forth on the Final Closing Balance Sheet (the “Closing Net Working Capital”) is greater than or less than the Estimated Net Working Capital, as applicable. Within three Business Days following determination of the Closing Net Working Capital in accordance with Section 3.5(b)(ii3.3(b)(ii), (A) if the Closing Net Working Capital is less than the Estimated Net Working Capital, Parent and the Securityholders’ Members Representative shall jointly direct the Escrow Agent to pay to Parent from the Escrow Fund Amount an amount equal to the difference between such amounts and to deliver the balance amount, if any, to Parent and (B) if the Closing Net Working Capital is greater than the Estimated Net Working Capital, Parent shall deliver or cause to be delivered to the Paying Agent and/or Surviving Company the lesser of (1) the amount equal to the Closing Net Working Capital minus the Estimated Net Working Capital and (2) the amount equal to $180,000 minus the Estimated Net Working Capital, and Parent shall cause the Paying Agent and/or Surviving Company to distribute such amount to the Securityholders Equityholders in accordance with the Base Consideration Allocation Schedule. The difference between the Closing Net Working Capital and the Estimated Net Working Capital, whether a positive or a negative number, is referred to as the “Final Net Working Capital Adjustment Amount.”