Common use of Calculation of Adjustment Clause in Contracts

Calculation of Adjustment. (i) Not later than 90 days after the Closing Date, Purchaser will prepare, or cause to be prepared, and deliver to the Company a schedule (the “Closing Date Schedule of Adjustments”) setting forth in reasonable detail (and together with reasonable supporting documentation) Purchaser’s computation of: (A) the Working Capital (the “Closing Date Working Capital”); (B) the Debt Amount (the “Closing Date Debt Amount”); and (C) (1) the difference between the Closing Date Working Capital and the Estimated Working Capital, and (2) the difference between the Closing Date Debt Amount and the Estimated Debt Amount. The Company shall have a period of 30 days after receipt of the Closing Date Schedule of Adjustments to deliver to Purchaser any objections that the Company may have to any of the matters set forth therein, which objections shall be set forth in writing and in reasonable detail and include the Company’s calculations of the relevant amounts. During such 30-day period, Purchaser shall grant to the Company and its agents and representatives reasonable access, during normal business hours and upon reasonable notice, in such a manner as to not materially interfere with normal operation of Purchaser’s business, to the books, records and other documents (including work papers) pertaining to or used in connection with the preparation of the Closing Date Schedule of Adjustments. If the Company does not deliver any written objections to Purchaser within such 30-day period, the Company shall be deemed to have accepted the Closing Date Schedule of Adjustments and Purchaser’s calculations of the Closing Date Working Capital and Closing Date Debt Amount, and the Company shall have irrevocably waived any right to object thereto. If the Company does timely deliver such written objections, Purchaser and the Company shall, for a period of 30 days thereafter, attempt to resolve such objections in good faith. (ii) If the Company and Purchaser do not resolve all such objections to the Closing Date Schedule of Adjustments within such 30-day period, then any remaining disputes shall be submitted not later than five Business Days after the expiration of the 30-day period to KPMG LLP (the “Independent Accountant”). The Independent Accountant shall be instructed to deliver a decision solely with respect to the items to which the Company has objected, and any other matters referred to it for determination, within ten Business Days after the submission of such matters to the Independent Accountant. The Independent Accountant shall be instructed that its decision shall be in writing and shall include (x) a statement describing in reasonable detail the decision of the Independent Accountant with respect to each item in dispute and (y) a computation of the Working Capital and/or the Debt Amount, as applicable. The Independent Accountant shall consider only those items and amounts that are identified by Purchaser and the Company as items and amounts upon which the Parties are unable to agree. The decision of the Independent Accountant shall be final and binding and conclusive upon Purchaser and the Company for all purposes under this Agreement (absent fraud or manifest error by the Independent Accountant); provided, however, that (1) the determination of the Independent Accountant of the Working Capital shall not be higher than the amount determined by the Company or lower than the amount determined by Purchaser, and (2) the determination of the Independent Accountant of the Debt Amount shall not be higher than the amount determined by Purchaser or lower than the amount determined by the Company. The fees and expenses of the Independent Accountant shall be shared equally by Purchaser and the Company.