Common use of Review; Disputes Clause in Contracts

Review; Disputes. (i) From and after the Effective Time, the Surviving Corporation shall provide the Equityholders’ Representative and any accountants or advisors retained by the Equityholders’ Representative with reasonable access, during normal business hours, to the relevant books and records of the Surviving Corporation used by the Surviving Corporation in the preparation of, or otherwise reasonably relevant to, the Closing Balance Sheet and the Closing Date Schedule for the purposes of: (A) enabling the Equityholders’ Representative and its accountants and advisors to calculate, and to review the Surviving Corporation’s calculation of, the Closing Net Working Capital Amount, Closing Cash, Closing Debt and Unpaid Company Transaction Expenses; and (B) identifying any dispute related to the calculation of any of the Closing Net Working Capital Amount, Closing Cash, Closing Debt and Unpaid Company Transaction Expenses in the Closing Balance Sheet and the Closing Date Schedule. The reasonable fees and expenses of any such accountants and advisors retained by the Equityholders’ Representative shall be paid by the Equityholders’ Representative from the Equityholders’ Representative Expense Fund. (ii) If the Equityholders’ Representative disputes the calculation of any of the Closing Net Working Capital Amount, Closing Cash, Closing Debt or Unpaid Company Transaction Expenses set forth in the Closing Balance Sheet or the Closing Date Schedule, then the Equityholders’ Representative shall deliver a written notice (a “Dispute Notice”) to the Surviving Corporation and the Escrow Agent at any time during the 40-day period commencing upon receipt by the Equityholders’ Representative of the Closing Balance Sheet and the Closing Date Schedule, all as prepared by the Surviving Corporation in accordance with the requirements of Section 2.8(b) (the “Review Period”). The Dispute Notice shall set forth the basis for the dispute of any such calculation in reasonable detail. (iii) If the Equityholders’ Representative does not deliver a Dispute Notice to the Surviving Corporation prior to the expiration of the Review Period, the Surviving Corporation’s calculation of the Closing Net Working Capital Amount, Closing Cash, Closing Debt and Unpaid Company Transaction Expenses set forth in the Closing Balance Sheet and the Closing Date Schedule shall be deemed final and binding on Parent, the Surviving Corporation, the Equityholders’ Representative and the Equityholders for all purposes of this Agreement. (iv) If the Equityholders’ Representative delivers a Dispute Notice to the Surviving Corporation prior to the expiration of the Review Period, then the Equityholders’ Representative and the Surviving Corporation shall use commercially reasonable efforts to reach agreement on the Closing Net Working Capital Amount, Closing Cash, Closing Debt and Unpaid Company Transaction Expenses. If the Equityholders’ Representative and the Surviving Corporation are unable to reach agreement on the Closing Net Working Capital Amount, Closing Cash, Closing Debt and Unpaid Company Transaction Expenses within 30 days after the end of the Review Period, either party shall have the right to refer such dispute to Ernst & Young LLP or an alternative national accounting firm reasonably agreed to by the Equityholders’ Representative and Parent (such firm, or any successor thereto, being referred to herein as the “Accounting Firm”) after such 30th day. In connection with the resolution of any such dispute by the Accounting Firm: (i) each of the Surviving Corporation and the Equityholders’ Representative shall have a reasonable opportunity to meet with the Accounting Firm to provide their views as to any disputed issues with respect to the calculation of any of the Closing Net Working Capital Amount, Closing Cash, Closing Debt and Unpaid Company Transaction Expenses; (ii) the Accounting Firm shall determine the Closing Net Working Capital Amount, Closing Cash, Closing Debt and Unpaid Company Transaction Expenses in accordance with the terms of this Agreement within 30 days of such referral and upon reaching such determination shall deliver a copy of its calculations (the “Expert Calculations”) to the Equityholders’ Representative, Surviving Corporation and the Escrow Agent; and (iii) the determination made by the Accounting Firm of the Closing Net Working Capital Amount, Closing Cash, Closing Debt and Unpaid Company Transaction Expenses shall be final and binding on Parent, the Surviving Corporation, the Equityholders’ Representative and the Equityholders for all purposes of this Agreement, absent manifest error. In calculating the Closing Net Working Capital Amount, Closing Cash, Closing Debt and Unpaid Company Transaction Expenses, the Accounting Firm (i) shall be limited to addressing any particular disputes referred to in the Dispute Notice and (ii) such calculation shall, with respect to any disputed item, be no greater than the higher amount calculated by the Equityholders’ Representative or the Surviving Corporation, and no less than the lower amount calculated by the Equityholders’ Representative or the Surviving Corporation, as the case may be. The Expert Calculations shall reflect in detail the differences, if any, between the Closing Net Working Capital Amount, Closing Cash, Closing Debt and Unpaid Company Transaction Expenses reflected therein and the Closing Net Working Capital Amount, Closing Cash, Closing Debt and Unpaid Company Transaction Expenses set forth in the Closing Balance Sheet and Closing Date Schedule. The fees and expenses of the Accounting Firm shall be borne equally by the Surviving Corporation and the Equityholders’ Representative (it being understood that any fees and expenses of the Accounting Firm payable by the Equityholders’ Representative shall be payable from the Equityholders’ Representative Expense Fund).

Review; Disputes. (i) From the Equityholders’ Representative’s receipt of the Closing Date Schedule until the final determination of the Closing Net Working Capital Amount, Closing Cash, Closing Debt and after the Effective TimeUnpaid Company Transaction Expenses pursuant to this Section 2.7(c), the Surviving Corporation shall provide the Equityholders’ Representative and any accountants or advisors retained by the Equityholders’ Representative with reasonable access, during normal business hours, after reasonable advance notice, to the relevant books and records of the Surviving Corporation used by the Surviving Corporation in the preparation of, or otherwise and other information reasonably relevant to, the Closing Balance Sheet and to the Closing Date Schedule and the calculation of the Closing Net Working Capital Amount, Closing Cash, Closing Debt and Unpaid Company Transaction Expenses reasonably requested by the Equityholders’ Representative, in each case for the purposes of: (A) enabling the Equityholders’ Representative and its accountants and advisors to calculate, and to review the Surviving Corporation’s Closing Date Schedule and the calculation of, the Closing Net Working Capital Amount, Closing Cash, Closing Debt and Unpaid Company Transaction Expenses; Expenses and (B) identifying any dispute related to the Closing Date Schedule and the calculation of any of the Closing Net Working Capital Amount, Closing Cash, Closing Debt and Unpaid Company Transaction Expenses in the Closing Balance Sheet and the Closing Date ScheduleExpenses. The reasonable fees and expenses of any such accountants and advisors retained by the Equityholders’ Representative shall be paid by the Equityholders’ Representative from the Equityholders’ Representative Expense FundRepresentative. (ii) If the Equityholders’ Representative disputes any items set forth on the Closing Date Schedule or the calculation of any of the Closing Net Working Capital Amount, Closing Cash, Closing Debt or Unpaid Company Transaction Expenses set forth in the Closing Balance Sheet or the Closing Date ScheduleExpenses, then the Equityholders’ Representative shall deliver a written notice (a “Dispute Notice”) to the Surviving Corporation and the Escrow Agent at any time during the 40-thirty (30) day period commencing upon receipt by the Equityholders’ Representative of the Closing Balance Sheet and the Closing Date Schedule, all as prepared by the Surviving Corporation Schedule in accordance with the requirements of Section 2.8(b2.7(b) (the “Review Period”). The Dispute Notice shall set forth specify the amounts and calculations with which the Equityholders’ Representative disagrees in reasonable detail and the basis for any such dispute in reasonable detail and Equityholders’ Representative’s proposed change, and the dispute Dispute Notice shall only include good faith disagreements based on the calculation of any such calculation of the Closing Net Working Capital Amount, Closing Cash, Closing Debt or Unpaid Company Transaction Expenses not being calculated in reasonable detailaccordance with the applicable provisions of this Agreement. (iii) If the Equityholders’ Representative does not deliver a Dispute Notice to the Surviving Corporation in accordance with Section 2.7(c)(ii) prior to the expiration of the Review Period, the Surviving Corporation’s calculation of the Closing Net Working Capital Amount, Closing Cash, Closing Debt and Unpaid Company Transaction Expenses and the resulting Merger Consideration set forth in the Closing Balance Sheet and the Closing Date Schedule shall be deemed final and binding on Parent, the Surviving Corporation, the Equityholders’ Representative and the Equityholders for all purposes of this Agreement. (iv) If the Equityholders’ Representative delivers a Dispute Notice to the Surviving Corporation prior to the expiration of the Review Period, then the Equityholders’ Representative and the Surviving Corporation shall use commercially reasonable best efforts to reach agreement on the Closing Net Working Capital Amount, Closing Cash, Closing Debt and Unpaid Company Transaction ExpensesExpenses in good faith. If the Equityholders’ Representative and the Surviving Corporation are unable to reach agreement on the Closing Net Working Capital Amount, Closing Cash, Closing Debt and Unpaid Company Transaction Expenses within 30 thirty (30) days after the end of the Review Period, either party shall have the right to refer such dispute to Ernst & Young LLP or an alternative national accounting firm reasonably agreed to by the Equityholders’ Representative and Parent the Surviving Corporation shall promptly mutually engage, and submit such dispute to, the San Francisco, California office of PricewaterhouseCoopers LLP (such firm, or, if such firm is unable or any successor theretounwilling to act, such other nationally recognized public accounting firm as shall be agreed upon in writing by Parent and the Equityholders’ Representative, being referred to herein as the “Accounting Firm”) after such 30th day). In connection with the resolution of any such dispute by the Accounting Firm: (i) the Accounting Firm shall conduct a conference, at which conference each of the Surviving Corporation and the Equityholders’ Representative shall have a reasonable opportunity the right to meet with the Accounting Firm to provide present their views respective positions and written submissions as to any disputed issues with respect to the Closing Date Schedule and the calculation of any of the Closing Net Working Capital Amount, Closing Cash, Closing Debt and Unpaid Company Transaction Expenses; Expenses and any additional information relating thereto and to have present their respective advisors, counsel and accountants, (ii) the Accounting Firm shall determine the Closing Net Working Capital Amount, Closing Cash, Closing Debt and Unpaid Company Transaction Expenses in accordance with the terms of this Agreement within 30 thirty (30) days of such referral submission and upon reaching such determination shall deliver a copy of its calculations (the “Expert Calculations”) to the Equityholders’ Representative, Surviving Corporation and the Escrow Agent; Agent and (iii) the determination made by the Accounting Firm of the Closing Net Working Capital Amount, Closing Cash, Closing Debt and Unpaid Company Transaction Expenses shall be final and binding on Parent, the Surviving Corporation, the Equityholders’ Representative and the Equityholders for all purposes of this Agreement, absent manifest error. In calculating the Closing Net Working Capital Amount, Closing Cash, Closing Debt and Unpaid Company Transaction Expenses, the Accounting Firm (ix) shall be limited to addressing any particular disputes referred to in the Dispute Notice and (iiy) such calculation shall, with respect to any disputed item, be no greater than the higher amount calculated by the Equityholders’ Representative as set forth in the Dispute Notice or the Surviving CorporationCorporation as set forth in the Closing Date Schedule delivered pursuant to Section 2.7(b), and no less than the lower amount calculated by the Equityholders’ Representative as set forth in the Dispute Notice or the Surviving CorporationCorporation as set forth in the Closing Date Schedule delivered pursuant to Section 2.7(b), as the case may be. The Expert Calculations shall reflect in detail the differences, if any, between the Closing Net Working Capital Amount, Closing Cash, Closing Debt and Unpaid Company Transaction Expenses reflected therein and the Closing Net Working Capital Amount, Closing Cash, Closing Debt and Unpaid Company Transaction Expenses set forth in the Closing Balance Sheet and Date Schedule, as well as any related differences in the Closing Date Schedule. The fees and expenses of the Accounting Firm shall be borne equally by the Surviving Corporation and the Equityholders’ Representative (it being understood that any fees and expenses of the Accounting Firm payable by the Equityholders’ Representative shall be payable from the Equityholders’ Representative Expense Escrow Fund).

Review; Disputes. (i) From and after the Effective Time, the Parent and the Surviving Corporation shall provide the Equityholders’ Stockholder Representative and any accountants or advisors retained by the Equityholders’ Stockholder Representative with reasonable access, during normal business hours, full access to the relevant books and records and personnel of the Surviving Corporation used by the Surviving Corporation in the preparation of, or otherwise reasonably relevant to, the Closing Balance Sheet and the Closing Date Schedule for the purposes of: (A) enabling the Equityholders’ Stockholder Representative and its accountants and advisors to calculate, and to review the Surviving CorporationParent’s calculation of, the Closing Net Working Capital Amount, Closing Cash, Closing Debt Indebtedness and Unpaid Company Transaction Expenses; and (B) identifying any dispute related to the calculation of any of the Closing Net Working Capital Amount, Closing Cash, Closing Debt Indebtedness and Unpaid Company Transaction Expenses in the Closing Balance Sheet and the Closing Date Schedule. The reasonable fees and expenses of any such accountants and advisors retained by the Equityholders’ Representative shall be paid by the Equityholders’ Representative from the Equityholders’ Representative Expense Fundreimbursable expenses pursuant to Section 3.3(c) of this Agreement. (ii) If the Equityholders’ Stockholder Representative disputes the calculation of any of the Closing Net Working Capital Amount, Closing Cash, Closing Debt Indebtedness or Unpaid Company Transaction Expenses set forth in the Closing Balance Sheet or the Closing Date Schedule, then the Equityholders’ Stockholder Representative shall deliver a written notice (a “Dispute Notice”) to the Surviving Corporation and the Escrow Agent Parent at any time during the 40forty-five (45) day period commencing upon receipt by the Equityholders’ Stockholder Representative of the Closing Balance Sheet and Sheet, the Closing Date ScheduleSchedule and the related certificate of the Parent, all as prepared by the Surviving Corporation Parent in accordance with the requirements of Section 2.8(b3.6(b) (subject to extension for any period of inadequate access to the underlying records) (the “Review Period”). The Dispute Notice shall set forth the basis for the dispute of any such calculation in reasonable detail. (iii) If the Equityholders’ Stockholder Representative does not deliver a Dispute Notice to the Surviving Corporation Parent prior to the expiration of the Review Period, the Surviving CorporationParent’s calculation of the Closing Net Working Capital Amount, Closing Cash, Closing Debt and Unpaid Indebtedness and/or Company Transaction Expenses set forth in the Closing Balance Sheet and the Closing Date Schedule shall be deemed final and binding on Parent, the Parent and Surviving Corporation, the Equityholders’ Stockholder Representative and the Equityholders each Stockholder for all purposes of this Agreement. (iv) If the Equityholders’ Stockholder Representative delivers a Dispute Notice to the Surviving Corporation Parent prior to the expiration of the Review Period, then the Equityholders’ Stockholder Representative and the Surviving Corporation Parent shall use commercially reasonable efforts to reach agreement on the Closing Net Working Capital Amount, Closing Cash, Closing Debt and Unpaid Indebtedness and/or Company Transaction ExpensesExpenses that are in dispute. If the Equityholders’ Stockholder Representative and the Surviving Corporation Parent are unable to reach agreement on the Closing Net Working Capital Amount, Closing Cash, Closing Debt and Unpaid Indebtedness and/or Company Transaction Expenses that are in dispute within 30 twenty (20) days after the end of the Review Period, either party shall have the right to refer such dispute to Ernst & Young LLP or an alternative national accounting firm reasonably agreed to by the Equityholders’ Representative and Parent McGladrey, LLC (such firm, or any successor thereto, being referred to herein as the “Designated Accounting Firm”) after such 30th twentieth (20th) day, and neither party shall allow the Designated Accounting Firm to perform audit or accounting work for it to any material degree (other than as the Designated Accounting Firm under this Agreement) from the date of submission of any dispute to the Designated Accounting Firm through the date of final resolution of such claim. In connection with the resolution of any such dispute by the Designated Accounting Firm: (i1) each of the Stockholder Representative and the Surviving Corporation and the Equityholders’ Representative shall have a reasonable opportunity to meet with the Designated Accounting Firm to provide their its views as to any disputed issues with respect to the calculation of any of the Closing Net Working Capital Amount, Closing Cash, Closing Debt and Unpaid Indebtedness and/or Company Transaction Expenses; (ii2) each of the Stockholder Representative and the Parent shall promptly provide, or cause to be provided, to the Designated Accounting Firm all information and make available as are reasonably necessary to permit the Designated Accounting Firm to resolve such disputes; (3) the Designated Accounting Firm shall determine the Closing Net Working Capital Amount, Closing Cash, Closing Debt and Unpaid Indebtedness and/or Company Transaction Expenses in accordance with the terms of this Agreement within 30 thirty (30) days of after such referral referral, and upon reaching such determination shall deliver a copy of its calculations (the “Expert Calculations”) to the Equityholders’ Representative, Surviving Corporation Stockholder Representative and the Escrow AgentParent; and (iii4) the determination made by the Designated Accounting Firm of the Closing Net Working Capital Amount, Closing Cash, Closing Debt and Unpaid Indebtedness and/or Company Transaction Expenses that are in dispute shall be conclusive, binding upon the parties, nonappealable, and not be subject to further review, and shall be considered a final and binding on Parent, arbitration award that is enforceable pursuant to the Surviving Corporation, terms of the Equityholders’ Representative and the Equityholders for all purposes of this Agreement, absent manifest errorFederal Arbitration Act. In calculating the Closing Net Working Capital Amount, Closing Cash, Closing Debt Indebtedness and Unpaid Company Transaction Expenses, the Designated Accounting Firm (iA) shall be limited to addressing any only those particular disputes disputed items referred to in the Dispute Notice Notice; and (iiB) such calculation shall, with respect to any disputed item, be no greater than the higher amount calculated by the Equityholders’ Representative Parent or Stockholder Representative, as the Surviving Corporationcase may be, and no less lower than the lower amount calculated by the Equityholders’ Representative Parent or the Surviving CorporationStockholder Representative, as the case may be. The Expert Calculations shall reflect in detail the differences, if any, between the Closing Net Working Capital Amount, Closing Cash, Closing Debt and Unpaid Indebtedness and/or Company Transaction Expenses reflected therein and the Closing Net Working Capital Amount, Closing Cash, Closing Debt and Unpaid Indebtedness and/or Company Transaction Expenses set forth in the Closing Balance Sheet and Closing Date Schedule. The fees and expenses of the Designated Accounting Firm shall be borne equally by allocated between the Surviving Corporation Parent, on the one hand, and the Equityholders’ Representative (it being understood that any fees Company Stockholders and expenses Company Option Holders, on the other hand, based upon the percentage which the portion of the Accounting Firm payable contested amount not awarded to each party bears to the amount actually contested by such party. If the Equityholders’ Representative Company Stockholders and Company Option Holders shall be payable from required to pay any such fees or expenses, such fees or expenses shall be first paid out of the Equityholders’ Representative Expense Reserve Account and then out of the Escrow Fund).

Review; Disputes. (i) From and after the Effective TimeTime and until all adjustments are finally determined in accordance with this Section 2.8, the Surviving Corporation shall provide the Equityholders’ Equityholder Representative and any accountants or advisors retained by the Equityholders’ Equityholder Representative with reasonable access, during normal business hours, access to the relevant books and records of the Surviving Corporation used by the Surviving Corporation in the preparation of, or otherwise reasonably relevant to, the Closing Balance Sheet and the Closing Date Schedule Company Subsidiaries for the purposes of: (A) enabling the Equityholders’ Equityholder Representative and its accountants and advisors to calculate, and to review the Surviving Corporation’s calculation of, the Closing Net Working Capital Amount, Closing Cash, the Aggregate Exercise Price, Closing Debt and Unpaid Company Transaction Expenses; and (B) identifying any dispute related to the calculation of any of the Closing Net Working Capital Amount, Closing Cash, the Aggregate Exercise Price, Closing Debt and Unpaid Company Transaction Expenses in the Closing Balance Sheet and the Closing Date Schedule. The reasonable fees and expenses of any such accountants and advisors retained by the Equityholders’ Representative shall be paid by the Equityholders’ Representative from the Equityholders’ Representative Expense Fund. (ii) If the Equityholders’ Equityholder Representative disputes the calculation of any of the Closing Net Working Capital Amount, Closing Cash, the Aggregate Exercise Price, Closing Debt or Unpaid Company Transaction Expenses set forth in the Closing Balance Sheet or the Closing Date Schedule, then the Equityholders’ Equityholder Representative shall deliver a written notice (a “Dispute Notice”) to the Surviving Corporation and the Escrow Agent at any time during the 4030-day period commencing upon receipt by the Equityholders’ Equityholder Representative of the Closing Balance Sheet and the Closing Date Schedule, all as prepared by the Surviving Corporation in accordance with the requirements of Section 2.8(b) (subject to extension of any period of during which the Surviving Corporation breached its obligations in Section 2.8(c)(i)) (the “Review Period”). The Dispute Notice shall set forth in reasonable detail the basis and amount for the dispute of any such calculation calculation; provided, that the Equityholder Representative may deliver only one Dispute Notice and may not amend the Dispute Notice once it has been delivered to the Surviving Corporation. The Equityholder Representative shall be deemed to have agreed with all items and amounts of the Closing Net Working Capital Amount, Closing Cash, the Aggregate Exercise Price, Closing Debt or Unpaid Company Transaction Expenses set forth in reasonable detailthe Closing Date Schedule not specifically referenced in the Dispute Notice, and such items and amounts shall not be subject to review in accordance with Section 2.8(c)(iv). (iii) If the Equityholders’ Equityholder Representative does not deliver a Dispute Notice to the Surviving Corporation prior to the expiration of the Review Period, the Surviving Corporation’s calculation of the Closing Net Working Capital Amount, Closing Cash, the Aggregate Exercise Price, Closing Debt and Unpaid Company Transaction Expenses set forth in the Closing Balance Sheet and the Closing Date Schedule shall be deemed final and binding on Parent, the Surviving Corporation, the Equityholders’ Equityholder Representative and the Equityholders for all purposes of this Agreement. (iv) If the Equityholders’ Equityholder Representative delivers a Dispute Notice to the Surviving Corporation prior to the expiration of the Review Period, then the Equityholders’ Equityholder Representative and the Surviving Corporation shall use commercially reasonable efforts to reach agreement on the Closing Net Working Capital Amount, Closing Cash, the Aggregate Exercise Price, Closing Debt and Unpaid Company Transaction Expenses. If the Equityholders’ Equityholder Representative and the Surviving Corporation are unable to reach agreement on the Closing Net Working Capital Amount, Closing Cash, the Aggregate Exercise Price, Closing Debt and Unpaid Company Transaction Expenses within 30 twenty (20) days after the end of the Review Period, either party shall have the right to refer such dispute to Ernst & Young McGladrey LLP or an alternative national accounting firm reasonably agreed to by the Equityholders’ Representative and Parent (such firm, or any successor thereto, being referred to herein as the “Accounting Firm”) after such 30th 20th day. In connection with the resolution of any such dispute by the Accounting Firm: (i) each of the Surviving Corporation and the Equityholders’ Equityholder Representative shall have a reasonable opportunity to meet with the Accounting Firm to provide their views as to any disputed issues with respect to the calculation of any of the Closing Net Working Capital Amount, Closing Cash, the Aggregate Exercise Price, Closing Debt and Unpaid Company Transaction Expenses; (ii) the Accounting Firm shall determine the Closing Net Working Capital Amount, Closing Cash, the Aggregate Exercise Price, Closing Debt and Unpaid Company Transaction Expenses in accordance with the terms of this Agreement (including the Specified Accounting Principles) within 30 thirty (30) days of such referral and upon reaching such determination shall deliver a written copy of its calculations (the “Expert Calculations”) ), and describing in reasonable detail its determination of each matter submitted to it, to the Equityholders’ Representative, Surviving Corporation Equityholder Representative and the Escrow AgentSurviving Corporation; and (iii) the determination made by the Accounting Firm of the Closing Net Working Capital Amount, Closing Cash, the Aggregate Exercise Price, Closing Debt and Unpaid Company Transaction Expenses shall be final and binding on Parent, the Surviving Corporation, the Equityholders’ Equityholder Representative and the Equityholders for all purposes of this Agreement, absent manifest error. In calculating the Closing Net Working Capital Amount, Closing Cash, the Aggregate Exercise Price, Closing Debt and Unpaid Company Transaction Expenses, the Accounting Firm (i) shall be limited to (i) addressing any particular disputes referred to in the Dispute Notice and not otherwise agreed to by the Equityholder Representative and the Surviving Corporation during the 20-day period following the end of the Review Period (or otherwise), and (ii) such calculation shall, with respect to any disputed item, be no greater than the higher amount calculated by the Equityholders’ Equityholder Representative in the Dispute Notice or the Surviving CorporationCorporation in the Closing Date Schedule, and no less than the lower amount calculated by the Equityholders’ Equityholder Representative in the Dispute Notice or the Surviving CorporationCorporation in the Closing Date Schedule, as the case may be. The Expert Calculations shall reflect in detail the differences, if any, between the Closing Net Working Capital Amount, Closing Cash, the Aggregate Exercise Price, Closing Debt and Unpaid Company Transaction Expenses reflected therein and the Closing Net Working Capital Amount, Closing Cash, the Aggregate Exercise Price, Closing Debt and Unpaid Company Transaction Expenses set forth in the Closing Balance Sheet and Closing Date Schedule. The fees and expenses of the Accounting Firm shall be borne equally by the Equityholder Representative, on behalf of the Equityholders, and the Surviving Corporation in inverse proportion to the outcome on the matters resolved by the Accounting Firm, which proportionate allocation shall be calculated on an aggregate basis based on the relative dollar values of the amounts in dispute and shall be determined by the Equityholders’ Representative Accounting Firm at the time the determination of such firm is rendered on the merits of the matters submitted (it being understood that any fees and expenses of the Accounting Firm payable by the Equityholders’ Equityholder Representative shall be payable from the Equityholders’ Representative Expense Fund).

Review; Disputes. (i) From and after the Effective Timedelivery of the Closing Date Schedule, Parent shall cause the Surviving Corporation shall to provide the Equityholders’ Equityholders Representative and any accountants or advisors retained by the Equityholders’ Equityholders Representative with reasonable access, during normal business hours, access to the relevant books and records of the Surviving Corporation used by the Surviving Corporation in the preparation of, or otherwise reasonably relevant to, the Closing Balance Sheet and the Closing Date Schedule during normal business hours for the purposes of: (A) enabling the Equityholders’ Equityholders Representative and its accountants and advisors to calculate, and to review the Surviving Corporation’s calculation of, the Closing Net Working Capital AmountDebt, Closing Cash, Closing Debt Net Working Capital Amount and Unpaid Company Transaction Expenses; and (B) identifying any dispute related to the calculation of any of the Closing Net Working Capital AmountDebt, Closing Cash, Closing Debt Net Working Capital Amount and Unpaid Company Transaction Expenses in the Closing Balance Sheet and the Closing Date Schedule. The reasonable fees and expenses of any such accountants and advisors retained by the Equityholders’ Representative shall be paid by the Equityholders’ Representative from the Equityholders’ Representative Expense Fund. (ii) If the Equityholders’ Equityholders Representative disputes the calculation of any of the Closing Debt, Closing Net Working Capital Amount, Closing Cash, Closing Debt Cash or Unpaid Company Transaction Expenses set forth in the Closing Balance Sheet or the Closing Date Schedule, then the Equityholders’ Equityholders Representative shall deliver a written notice (a “Dispute Notice”) to the Surviving Corporation Parent and the Escrow Agent at any time during the 4030-day period commencing upon receipt by the Equityholders’ Equityholders Representative of the Closing Balance Sheet and the Closing Date Schedule, all Schedule (as prepared by the Surviving Corporation in accordance with the requirements of Section 2.8(b) 2.7(b)), (the “Review Period”). The Dispute Notice shall set forth the basis and amount for the each dispute of any such calculation in reasonable detaildetail together with relating supporting documentation and calculations, as well as the alternative calculation with respect to each of the components of the Closing Date Schedule. (iii) If the Equityholders’ Equityholders Representative does not deliver a Dispute Notice to the Surviving Corporation prior to the expiration of the Review Period, the Surviving CorporationParent’s calculation of the Closing Net Working Capital AmountDebt, Closing Cash, Closing Debt Net Working Capital Amount and Unpaid Company Transaction Expenses set forth in the Closing Balance Sheet and the Closing Date Schedule shall be deemed final and binding on Parent, the Surviving Corporation, the Equityholders’ Equityholders Representative and the Equityholders for all purposes of this Agreement. (iv) If the Equityholders’ Equityholders Representative delivers a Dispute Notice to the Surviving Corporation Parent prior to the expiration of the Review Period, then the Equityholders’ Equityholders Representative and the Surviving Corporation Parent shall use commercially reasonable efforts negotiate in good faith to reach agreement on Closing Debt, Closing Cash, Closing Net Working Capital Amount and Unpaid Company Transaction Expenses. Notwithstanding anything in this Agreement to the contrary (including in Section 10.11), if the Equityholders Representative and Parent are unable to reach agreement on Closing Debt, Closing Net Working Capital Amount, Closing Cash, Closing Debt and Unpaid Company Transaction Expenses. If the Equityholders’ Representative and the Surviving Corporation are unable to reach agreement on the Closing Net Working Capital Amount, Closing Cash, Closing Debt Cash and Unpaid Company Transaction Expenses within 30 thirty (30) days after the end of the Review Period, Period either party Party shall have the right to refer such dispute to Ernst & Young LLP a nationally or an alternative national regionally recognized independent accounting firm reasonably mutually agreed to by the Equityholders’ Representative parties, and if such firm declines to serve, such other nationally or regionally recognized independent accounting firm that is mutually agreed upon in writing by Parent and the Equityholders Representative, (such firm, or any successor thereto, being referred to herein as the “Accounting Firm”) after such 30th day30-day period, provided, that the Parties may mutually agree in writing to extend such period before the dispute is referred to the Accounting Firm. In connection with the resolution of any such dispute by the Accounting Firm: (iA) each of the Surviving Corporation Parent and the Equityholders’ Equityholders Representative shall have a reasonable opportunity to meet with the Accounting Firm to provide their views as to any disputed issues with respect to the calculation of any of the Closing Net Working Capital Amount, Closing Cash, Closing Debt and Unpaid Company Transaction ExpensesFirm; (iiB) the Accounting Firm shall determine the Closing Net Working Capital AmountDebt, Closing Cash, Closing Debt Net Working Capital Amount and Unpaid Company Transaction Expenses in accordance with the terms of this Agreement (and, for the avoidance of doubt, such determination shall be made strictly in accordance with the policies, conventions, methodologies and procedures used by the Company in preparing its most recent audited Company Financial Statements to the extent consistent with GAAP) within 30 thirty (30) days of such referral and upon reaching such determination shall deliver a copy of its calculations (the “Expert CalculationsDetermination”) to the Equityholders’ Equityholders Representative, Surviving Corporation Parent and the Escrow Agent; and (iiiC) the determination made by the Accounting Firm of the Closing Net Working Capital AmountDebt, Closing Cash, Closing Debt Net Working Capital Amount and Unpaid Company Transaction Expenses shall be final and binding on Parent, the Surviving Corporation, the Equityholders’ Equityholders Representative and the Equityholders for all purposes of this Agreement, absent manifest error. In calculating the Closing Net Working Capital AmountDebt, Closing Cash, Closing Debt Net Working Capital Amount and Unpaid Company Transaction Expenses, (x) the Accounting Firm (i) shall be limited to addressing any particular disputes referred to in the Dispute Notice and (iiy) each such calculation shall, with respect to any disputed item, amount shall be no greater than the higher corresponding amount calculated by the Equityholders’ Equityholders Representative or the Surviving Corporation, Parent and no less lower than the lower corresponding amount calculated by the Equityholders’ Equityholders Representative or the Surviving Corporation, as the case may beParent. The Expert Calculations Determination shall reflect in detail the differences, if any, between the Closing Net Working Capital AmountDebt, Closing Cash, Closing Debt Net Working Capital Amount and Unpaid Company Transaction Expenses reflected therein and the Closing Net Working Capital AmountDebt, Closing Cash, Closing Debt Net Working Capital Amount and Unpaid Company Transaction Expenses set forth in the Closing Balance Sheet and Closing Date Schedule. The fees and expenses of the Accounting Firm shall be borne equally by the Surviving Corporation Parent and the Equityholders’ Equityholders Representative (it being understood that any fees and expenses on behalf of the Equityholders) in proportion to how close each Party’s position was to the determination of the Accounting Firm payable by the Equityholders’ Representative shall be payable from the Equityholders’ Representative Expense Fund)Firm.

Review; Disputes. (i) From and after the Effective Time, Parent and the Surviving Corporation shall provide the Equityholders’ Escrow Representative and any accountants or advisors retained by the Equityholders’ Escrow Representative with reasonable access, during normal business hours, full access to the relevant books and records and personnel of the Surviving Corporation used by the Surviving Corporation in the preparation of, or otherwise reasonably relevant to, the Closing Balance Sheet and the Closing Date Schedule for the purposes of: (A) enabling the Equityholders’ Escrow Representative and its accountants and advisors to calculate, and to review the Surviving Corporation’s Parent's calculation of, the Closing Net Working Capital Amount, Closing Cash, Closing Debt Cash and Unpaid Company Transaction ExpensesNet Indebtedness; and (B) identifying any dispute related to the calculation of any of the Closing Net Working Capital Amount, Amount Closing Cash, Closing Debt Cash and Unpaid Company Transaction Expenses Net Indebtedness in the Closing Balance Sheet and the Closing Date Schedule. The reasonable fees and expenses of any such accountants and advisors retained by the Equityholders’ Representative shall be paid by the Equityholders’ Representative from the Equityholders’ Representative Expense Fund. (ii) If the Equityholders’ Escrow Representative disputes the calculation of any of the Closing Net Working Capital Amount, Closing Cash, Closing Debt Cash or Unpaid Company Transaction Expenses Net Indebtedness set forth in the Closing Balance Sheet or the Closing Date Schedule, then the Equityholders’ Escrow Representative shall deliver a written notice (a “Dispute Notice”) to the Surviving Corporation and the Escrow Agent Parent at any time during the 40-thirty (30) day period commencing upon receipt by the Equityholders’ Escrow Representative of the Closing Balance Sheet and Sheet, the Closing Date ScheduleSchedule and the related certificate of Parent, all as prepared by the Surviving Corporation Parent in accordance with the requirements of Section 2.8(b3.6(b) (subject to extension for any period of inadequate access to the underlying records) (the “Review Period”). The Dispute Notice shall set forth the basis for the dispute of any such calculation in reasonable detail. (iii) If the Equityholders’ Escrow Representative does not deliver a Dispute Notice to the Surviving Corporation Parent prior to the expiration of the Review Period, the Surviving Corporation’s Parent's calculation of the Closing Net Working Capital Amount, Closing Cash, Closing Debt and Unpaid Company Transaction Expenses Cash and/or Net Indebtedness set forth in the Closing Balance Sheet and the Closing Date Schedule shall be deemed final and binding on Parent, the Parent and Surviving Corporation, the Equityholders’ Escrow Representative and the Equityholders each Stockholder for all purposes of this Agreement. (iv) If the Equityholders’ Escrow Representative delivers a Dispute Notice to the Surviving Corporation Parent prior to the expiration of the Review Period, then the Equityholders’ Escrow Representative and the Surviving Corporation Parent shall use commercially reasonable efforts to reach agreement on the Closing Net Working Capital Amount, Closing Cash, Closing Debt and Unpaid Company Transaction ExpensesCash and/or Net Indebtedness that are in dispute. If the Equityholders’ Escrow Representative and the Surviving Corporation Parent are unable to reach agreement on the Closing Net Working Capital Amount, Closing Cash, Closing Debt and Unpaid Company Transaction Expenses Cash and/or Net Indebtedness that are in dispute within 30 fifteen (15) days after the end of the Review Period, either party shall have the right to refer such dispute to Ernst & Young Deloitte and Touche, LLP or an alternative national accounting firm reasonably agreed to by the Equityholders’ Representative and Parent (such firm, or any successor thereto, being referred to herein as the “Designated Accounting Firm”) after such 30th twentieth (20th) day, and neither party shall allow the Designated Accounting Firm to perform audit or accounting work for it to any material degree (other than as the Designated Accounting Firm under this Agreement) from the date of submission of any dispute to the Designated Accounting Firm through the date of final resolution of such claim. In connection with the resolution of any such dispute by the Designated Accounting Firm: (i1) each of the Escrow Representative and the Surviving Corporation and the Equityholders’ Representative shall have a reasonable opportunity to meet with the Designated Accounting Firm to provide their its views as to any disputed issues with respect to the calculation of any of the Closing Net Working Capital Amount, Closing Cash, Closing Debt and Unpaid Company Transaction ExpensesCash and/or Net Indebtedness; (ii2) each of the Escrow Representative and Parent shall promptly provide, or cause to be provided, to the Designated Accounting Firm all information and make available as are reasonably necessary to permit the Designated Accounting Firm to resolve such disputes; (3) the Designated Accounting Firm shall determine the Closing Net Working Capital Amount, Closing Cash, Closing Debt and Unpaid Company Transaction Expenses Cash and/or Net Indebtedness in accordance with the terms of this Agreement within 30 thirty (30) days of after such referral referral, and upon reaching such determination shall deliver a copy of its calculations (the “Expert Calculations”) to the Equityholders’ Representative, Surviving Corporation Escrow Representative and the Escrow AgentParent; and (iii4) the determination made by the Designated Accounting Firm of the Closing Net Working Capital Amount, Closing Cash, Closing Debt and Unpaid Company Transaction Expenses Cash and/or Net Indebtedness that are in dispute shall be conclusive, binding upon the parties, nonappealable, and not be subject to further review, and shall be considered a final and binding on Parent, arbitration award that is enforceable pursuant to the Surviving Corporation, terms of the Equityholders’ Representative and the Equityholders for all purposes of this Agreement, absent manifest errorFederal Arbitration Act. In calculating the Closing Net Working Capital Amount, Closing Cash, Closing Debt Cash and Unpaid Company Transaction ExpensesNet Indebtedness, the Designated Accounting Firm (iA) shall be limited to addressing any only those particular disputes disputed items referred to in the Dispute Notice Notice; and (iiB) such calculation shall, with respect to any disputed item, be no greater than the higher amount calculated by Parent or Escrow Representative, as the Equityholders’ Representative or the Surviving Corporationcase may be, and no less lower than the lower amount calculated by the Equityholders’ Representative Parent or the Surviving CorporationEscrow Representative, as the case may be. The Expert Calculations shall reflect in detail the differences, if any, between the Closing Net Working Capital Amount, Closing Cash, Closing Debt and Unpaid Company Transaction Expenses Cash and/or Net Indebtedness reflected therein and the Closing Net Working Capital Amount, Closing Cash, Closing Debt and Unpaid Company Transaction Expenses Cash and/or Net Indebtedness set forth in the Closing Balance Sheet and Closing Date Schedule. The reasonable fees and expenses of the Designated Accounting Firm shall be borne equally by Parent on the Surviving Corporation one hand and by the Equityholders’ Representative (it being understood that any fees and expenses Company Eligible Holders on the other hand out of the Accounting Firm payable by the Equityholders’ Escrow Representative shall be payable from the Equityholders’ Representative Expense Fund).