Common use of Preparation of the Final Closing Statement Clause in Contracts

Preparation of the Final Closing Statement. (i) On or before the date that is one hundred and fifty (150) days after the Closing Date, Buyer or its designee will prepare, or cause to be prepared, and deliver to the Seller a written statement (the “Buyer Closing Statement”) setting forth (i) Buyer’s good faith calculation of (A) Working Capital (“Buyer Closing Working Capital”), (B) the Closing Indebtedness (the “Buyer Closing Indebtedness”), (C) the Closing Cash (the “Buyer Closing Cash”), and (D) the Company Transaction Expenses (the “Buyer Closing Transaction Expenses”), and (ii) Buyer’s good faith calculation of the Final Adjustment Amount. The Buyer Closing Statement shall be prepared in accordance with the Accounting Principles. (ii) Unless the Seller delivers a Dispute Notice (as defined below) within thirty (30) days after receipt of the Buyer Closing Statement, the Buyer Closing Statement shall be deemed the “Final Closing Statement,” and the Seller shall be deemed to have accepted the Final Closing Statement and Buyer’s calculation of Buyer Closing Working Capital, Buyer Closing Indebtedness, Buyer Closing Cash and Buyer Closing Transaction Expenses set forth therein, which, absent manifest error, shall be binding upon the Seller and Buyer and shall not be subject to dispute or review. If the Seller disagrees with the Buyer Closing Statement, the Seller may, within thirty (30) days after receipt thereof, notify Buyer in writing (the “Dispute Notice”), which Dispute Notice shall provide reasonable detail of the nature and amount of each disputed item on the Buyer Closing Statement, including all supporting documentation thereto, and the Seller shall be deemed to have agreed with all other items and amounts contained in the Buyer Closing Statement delivered pursuant to this Section 2.9(b). Buyer and the Seller shall first use commercially reasonable efforts to resolve such dispute between themselves and, if Xxxxx and the Seller are able to resolve such

Preparation of the Final Closing Statement. (i) On or before the date that is one hundred and fifty As soon as practicable, but no later than forty-five (15045) days after the Closing Date, Buyer or its designee will prepare, the Surviving Entity shall prepare or cause to be prepared, at its own expense, and deliver to the Seller Representative, together with all work papers and back-up materials relating thereto, a written statement (the “Buyer Closing Statement”) setting forth the Surviving Entity’s final calculations of the (i) Buyer’s good faith calculation of (A) Working Capital (“Buyer Closing Working Capital”), (B) as of the Closing Indebtedness (the “Buyer Closing Indebtedness”), (C) the Closing Cash (the “Buyer Closing Cash”), and (D) the Company Transaction Expenses (the “Buyer Closing Transaction Expenses”)Closing, and (ii) Buyer’s good faith calculation Indebtedness as of the Closing, together with reasonable supporting documentation used in such calculations (the “Final Adjustment Amount. The Buyer Closing Statement shall be prepared in accordance with the Accounting PrinciplesStatement”). (ii) Unless During the Seller delivers a Dispute Notice (as defined below) within thirty (30) days after 30)-day period immediately following the Representative’s receipt of the Buyer Final Closing Statement, the Buyer Closing Statement shall Representative will be deemed permitted to review, during normal business hours and upon reasonable notice, the “Surviving Entity’s books and records and the working papers related to the preparation of the Final Closing Statement,” . The Final Closing Statement (including the determinations included therein) will become final, binding and conclusive upon the Surviving Entity and the Seller shall be deemed Representative (i) on the thirtieth (30th) day following the Representative’s receipt thereof, unless the Surviving Entity receives from the Representative prior to have accepted such thirtieth (30th) day written notice of the Representative’s disagreement (a “Dispute Notice”) with any account or determination set forth in the Final Closing Statement or (ii) on such earlier date as the Representative notifies the Surviving Entity that it does not dispute the Final Closing Statement. Any Dispute Notice will specify in reasonable detail the nature and Buyer’s calculation dollar amount of Buyer Closing Working Capitalany disagreement so asserted (collectively, Buyer Closing Indebtedness, Buyer Closing Cash and Buyer Closing Transaction Expenses set forth therein, which, absent manifest error, the “Disputed Items”). The Dispute Notice shall be binding upon limited to disputes or objections based on mathematical errors or based on the Seller and Buyer and shall final calculations contained in the Final Closing Statement not be subject to dispute or reviewbeing calculated in accordance with the terms hereof. If the Seller disagrees Representative timely delivers a Dispute Notice, then the determination of the Common Stock Merger Consideration (in accordance with the Buyer Closing Statementresolution described in clause (i) or (ii) below, as applicable) will become final, binding and conclusive upon the Seller may, within thirty Surviving Entity and the Representative on the first to occur of (30i) days after receipt thereof, notify Buyer the date on which the Surviving Entity and the Representative resolve in writing all differences they have with respect to the Disputed Items or (ii) the date on which all of the Disputed Items that are not resolved by the Surviving Entity and the Representative in writing are finally resolved in writing by the independent registered public accounting firm mutually acceptable to the Representative and Parent (the “Dispute NoticeAccounting Firm”) in accordance with Section 2.7(d)(iii), which Dispute Notice shall provide reasonable detail of the nature and amount of each disputed item on the Buyer Closing Statement, including all supporting documentation thereto, and the Seller . The Representative shall be deemed to have agreed with all other amounts and items and amounts contained in the Buyer Final Closing Statement delivered to the extent such amounts and items are not disputed in the Dispute Notice. (iii) During the thirty (30) days following delivery of a Dispute Notice, the Surviving Entity and the Representative will seek in good faith to resolve in writing any differences that they have with respect to all of the Disputed Items. Any Disputed Item resolved in writing by the Surviving Entity and the Representative will be deemed final, binding and conclusive on Parent, the Surviving Entity and the Representative. If the Surviving Entity and the Representative do not reach agreement on all of the Disputed Items during such thirty (30)-day period (or such longer period as they shall mutually agree), then at the end of such thirty (30)-day (or longer) period, the Surviving Entity and the Representative will submit all unresolved Disputed Items (collectively, the “Unresolved Items”) to the Accounting Firm to review and resolve such matters. The parties shall instruct the Accounting Firm (i) not to assign a value to any item in dispute greater than the greatest value or lower than the lowest value assigned by the Surviving Entity or the Representative, (ii) to make a final determination (the “Final Determination”) not later than thirty (30) calendar days following submission of the Unresolved Items to the Independent Accounting Firm and (iii) to otherwise make its determination consistent with the terms of this Agreement. The Accounting Firm will act as an expert and not an arbitrator in conducting its services and may consider only those items which the Representative and the Surviving Entity are unable to resolve. The Accounting Firm’s determination shall be based solely on written submissions of the Representative and the Surviving Entity (i.e., not on an independent review). The Final Determination will be final, binding and conclusive on Parent, the Surviving Entity and the Representative, effective as of the date the Accounting Firm’s written determination is received by the Surviving Entity and the Representative. Each party will bear its own legal, accounting and other fees and expenses of participating in such dispute resolution procedure. The fees and expenses of the Accounting Firm shall be allocated between the Representative (on behalf of the Stockholders), on the one hand, and the Surviving Entity, on the other hand, based upon the percentage that the portion of the contested amount not awarded to each party bears to the amount actually contested by such party. For illustrative purposes only, if the Surviving Entity contests $500 of the Working Capital claimed by the Representative, and if the Accounting Firm ultimately resolves the dispute by awarding the Representative $300 of the $500 contested, then the costs and expenses of the Accounting Firm will be allocated 60% (i.e., 300 ÷ 500) to the Surviving Entity and 40% (i.e., 200 ÷ 500) to the Representative (on behalf of the Stockholders). (iv) Upon the determination, in accordance with Section 2.7(d)(i), (ii) and (iii) above, of the Final Closing Statement and any Final Determination, using the amounts so determined pursuant to this Section 2.9(b2.7(d)(i). Buyer , (ii) and (iii), (A) (x) if the Seller final calculation of Indebtedness exceeds the Indebtedness Cap, then Working Capital in the Final Closing Statement will be reduced on a dollar for dollar basis through a reduction in the Net Cash Amount (which may be a negative number) or (y) if the Indebtedness Cap exceeds the final calculation of Indebtedness, then the Common Stock Merger Consideration shall first use commercially reasonable efforts be increased by Parent issuing, within three (3) Business Days after the determination of the Final Closing Statement, to resolve such dispute between themselves andthe Stockholders on a pro rata basis in accordance with the Stockholders’ Allocation Percentages as set forth on the Closing Date Holdings Statement additional shares of Parent Common Stock with an aggregate value (based upon a price of four dollars ($4.00) per share) equal to the amount by which the Indebtedness Cap exceeds the final calculation of Indebtedness and (B) giving effect to any adjustment made pursuant to the immediately preceding clause (A), (x) if Xxxxx and Working Capital exceeds Target Working Capital, then the Seller are able Common Stock Merger Consideration shall be increased by Parent issuing, within three (3) Business Days after the determination of the Final Closing Statement, to resolve suchthe Stockholders on a pro rata basis in accordance with the Stockholders’ Allocation Percentages as set forth on the Closing Date Holdings Statement additional shares of Parent Common Stock with an aggregate value (based upon a price of four dollars ($4.00) per share) equal to the amount by which Working Capital exceeds Target Working Capital or (y) if Target Working Capital exceeds Working Capital, then the Representative (on behalf of the Stockholders) shall remit, within three (3) Business Days after the determination of the Final Closing Statement, to the Surviving Entity an amount in cash by wire transfer of immediately available funds to an account designated in writing by the Surviving Entity equal to the amount by which Target Working Capital exceeds Working Capital.

Preparation of the Final Closing Statement. (i) On or before the date that is one hundred and fifty (150) As soon as practicable, but no later than sixty days after the Closing Date, Buyer or its designee will prepare, or cause to be prepared, the Purchaser shall prepare and deliver to the Seller Sellers a written statement (the “Buyer Proposed Closing Statement”) setting forth (i) Buyerthe Purchaser’s good faith calculation determination of (A1) the Net Working Capital of the Company and its Subsidiaries as of the Closing Date (the “Buyer Closing Working Capital”), ) and (B2) Cash of the Company and its Subsidiaries as of the Closing Indebtedness Date (the “Buyer Closing Indebtedness”), (C) the Closing Cash (the “Buyer Closing Cash”), and (D) the Company Transaction Expenses (the “Buyer Closing Transaction Expenses”), and (ii) Buyer’s good faith calculation of the Final Adjustment Amount. The Buyer Closing Statement shall be prepared in accordance with the Accounting Principles. (ii) Unless If the Seller delivers a Dispute Notice (as defined below) within thirty (30) days after receipt of Sellers disagree with the Buyer Closing Statement, the Buyer Closing Statement shall be deemed the “Final Closing Statement,” and the Seller shall be deemed to have accepted the Final Closing Statement and BuyerPurchaser’s calculation of Buyer the Closing Working CapitalCapital or the Closing Cash, Buyer the Sellers shall promptly, but in no event later than twenty Business Days after receiving the Proposed Closing IndebtednessStatement (the “Review Period”) deliver to the Purchaser written notice describing in reasonable detail their dispute by specifying those items or amounts as to which the Sellers disagree, Buyer Closing Cash and Buyer Closing Transaction Expenses set forth therein, which, absent manifest error, shall be binding upon the Seller and Buyer and shall not be subject to dispute or review. If the Seller disagrees together with the Buyer Closing Statement, the Seller may, within thirty Sellers’ determination of such disputed items and amounts (30) days after receipt thereof, notify Buyer in writing (the a “Dispute Notice”); provided, which Dispute Notice shall provide reasonable detail of that the nature and amount of each disputed item on the Buyer Closing Statement, including all supporting documentation thereto, and the Seller Sellers shall be deemed to have agreed with all other items and amounts contained that are not disputed in the Buyer Dispute Notice. If the Sellers either give notice that they agree with the Purchaser’s calculation of the Closing Statement delivered pursuant Working Capital and Closing Cash or fails to this Section 2.9(b). Buyer deliver a Dispute Notice within the Review Period, the Purchaser and the Seller agree that the Proposed Closing Statement shall first be deemed to set forth (1) the Closing Working Capital and shall constitute the “Final Net Working Capital” for purposes of Section 2.3(b), and (2) the Closing Cash and shall constitute the Final Closing Cash (as defined below) for purposes of Section 2.3(b). If the Sellers deliver a Dispute Notice to the Purchaser within the Review Period, the Sellers and the Purchaser will use commercially reasonable good faith efforts to resolve such the dispute between themselves and, if Xxxxx during the 30-day period commencing on the date the Sellers deliver the Dispute Notice to the Selling Parties. If the Purchaser and the Seller Sellers are not able to resolve suchall disputed items within such 30-day period, then the items in dispute shall be submitted immediately to the New York office of Ernst & Young LLP (the “Accounting Firm”). The Accounting Firm shall be given reasonable access to all relevant records of the Company and its Subsidiaries to calculate the Closing Working Capital and/or the Closing Cash. Each of the Purchaser and the Sellers will be afforded an opportunity to present to the Accounting Firm any material relating to the determination of the matters set forth in the Dispute Notice and to discuss such matters with the Accounting Firm. The Accounting Firm shall be instructed to promptly deliver to the other party copies of all documents and other data made available by the Sellers or the Purchaser to the Accounting Firm. The Accounting Firm shall act as an expert and not as an arbitrator to calculate, based solely on the written submissions of the Sellers, on the one hand, and the Purchaser, on the other, and not by independent investigation, the Closing Working Capital and/or the Closing Cash and shall be instructed that its calculation (A) with respect to Closing Working Capital, must be made in accordance with the standards and definitions in this Agreement and Exhibit A, and (B) with respect to each item in dispute, must be within the range of values established for such amount as determined by reference to the value assigned to such amount by the Sellers in the Dispute Notice and by the Sellers in the Proposed Closing Statement. The Accounting Firm shall submit such calculation to the Sellers and the Purchaser as soon as practicable, but in any event within thirty (30) days after the remaining issues in dispute are submitted to the Accounting Firm. The determination by the Accounting Firm of the Closing Working Capital and the Closing Cash as set forth in a written notice delivered to the Purchaser and the Sellers by the Accounting Firm in accordance with this Agreement absent manifest error will be binding and conclusive on the Purchaser and the Sellers. Closing Working Capital as determined after all disputes have been resolved in accordance with this Section 2.3 (a)(ii) is referred to herein as the “Final Net Working Capital” and Closing Cash as determined after all disputes have been resolved in accordance with this Section 2.3(a)(ii) is referred to herein as the “Final Closing Cash”. (iii) In the event Purchaser and the Sellers submit any unresolved objections to an Accounting Firm for resolution as provided in Section 2.3(a)(ii) above, the fees and expenses of such Accounting Firm will be borne pro rata as determined by the Accounting Firm by the Purchaser and the Sellers based on the amount of deviation of the determination of Closing Working Capital and Closing Cash, as set forth in the Dispute Notice and the Proposed Closing Statement, respectively, from the determination of Final Net Working Capital and Final Closing Cash made by the Accounting Firm. (iv) The Purchaser will cause the Company to make its financial records and relevant personnel available to the Sellers and their accountants and other representatives at reasonable times during the period beginning on the Closing Date and ending on date of the final determination of the Final Net Working Capital and Final Closing Cash pursuant to Section 2.3(a)(ii) above.

Preparation of the Final Closing Statement. (i) On or before the date that is one hundred and fifty ninety (15090) days after the Closing Date, Buyer or its designee will shall prepare, or cause to be prepared, and deliver to the Seller Securityholders’ Representative a written statement (the “Buyer Closing Statement”) setting forth (i) Buyer’s its good faith calculation of (A) Closing Working Capital (“Buyer Closing Working Capital”), (B) the Closing Indebtedness (the “Buyer Closing Indebtedness”), (C) the Closing Cash (the “Buyer Closing Cash”), and (D) the Company Transaction Expenses (the “Buyer Closing Transaction Expenses”), ) and (D) the Closing Cash (the “Buyer Closing Cash”) and (ii) Buyer’s good faith calculation of the Final Adjustment Amount, together with any applicable supporting detail and information that the Securityholders’ Representative may reasonably request to verify the amounts in the Buyer Closing Statement. The Buyer Closing Statement shall be prepared using the same accounting principles, practices, methodologies and policies that were used to prepare the Estimated Closing Statement. Following receipt of the Buyer Closing Statement, Buyer shall permit the Securityholders’ Representative and its representatives at all reasonable times and upon reasonable notice to review the Final Surviving Entity’s working papers relating to the Buyer Closing Statement (including the Buyer Closing Working Capital) as well as all of Buyer’s and the Final Surviving Entity’s accounting books and records relating to the determination of the Buyer Closing Statement, and Buyer shall make reasonably available its and the Final Surviving Entity’s representatives responsible for the preparation of the Buyer Closing Statement in accordance order to respond to the reasonable inquiries of the Securityholder’s Representative. If Buyer fails to deliver the Buyer Closing Statement within such ninety (90) day period, the Securityholders’ Representative shall have the right, at its election, to either (1) determine that the estimates delivered by the Company pursuant to Section 2.17(a) shall be deemed for all purposes hereunder to be the final statement for purposes of calculating the Final Closing Working Capital, Final Closing Indebtedness, Final Closing Transaction Expenses and Final Closing Cash, and such determination shall, in such case, be binding on Buyer with Buyer having no further rights to object or require adjustments thereto or (2) require Buyer to deliver the Accounting PrinciplesBuyer Closing Statement within ten (10) days of the Securityholders’ Representative’s demand therefor. (ii) Unless the Seller Securityholders’ Representative delivers a Dispute Notice (as defined below) within thirty forty-five (3045) days after receipt of the Buyer Closing Statement, the Buyer Closing Statement shall be deemed the “Final Closing Statement,” and the Seller Securityholders’ Representative shall be deemed to have accepted the Final Closing Statement and Buyer’s calculation of Buyer Closing Working Capital, Buyer Closing Indebtedness, Buyer Closing Cash Transaction Expenses and Buyer Closing Transaction Expenses Cash set forth therein, which, absent manifest error, which shall be binding upon the Seller Company Securityholders and Buyer and shall not be subject to dispute or review. If the Seller Securityholders’ Representative disagrees with the Buyer Closing Statement, the Seller Securityholders’ Representative may, within thirty forty-five (3045) days after receipt thereof, notify Buyer in writing (the “Dispute Notice”), which Dispute Notice shall provide reasonable detail of the nature and amount of each disputed item on the Buyer Closing Statement, including all reasonable supporting documentation thereto, and the Seller Securityholders’ Representative shall be deemed to have agreed with all other items and amounts contained in the Buyer Closing Statement delivered pursuant to this Section 2.9(b2.17(b). Buyer and the Seller Securityholders’ Representative shall first use commercially reasonable efforts to resolve such dispute between themselves and, if Xxxxx Buyer and the Seller Securityholders’ Representative are able to resolve suchsuch dispute, the Buyer Closing Statement and the calculation of Buyer Closing Working Capital, Buyer Closing Indebtedness, Buyer Closing Transaction Expenses and/or Buyer Closing Cash shall be revised to the extent necessary to reflect such resolution, shall be deemed the “Final Closing Statement” and shall be conclusive and binding upon the Company Securityholders and Buyer and shall not be subject to dispute or review. If Buyer and the Securityholders’ Representative are unable to resolve the dispute within