Common use of Determination of Actual Net Working Capital Clause in Contracts

Determination of Actual Net Working Capital. Within 60 calendar days after the Closing Date, Purchaser shall prepare and deliver to the Sellers’ Agent a draft Net Working Capital Statement in substantially the form of Schedule 1.4, signed by Purchaser, identifying Purchaser’s calculation of the Net Working Capital Amount and any adjustments to the purchase price payable for the Shares as a result of the Net Working Capital Amount being greater or less than the Target Net Working Capital Amount. If the Sellers’ Agent does not object to Purchaser’s draft Net Working Capital Statement within 30 calendar days after receipt thereof, or accepts such draft Net Working Capital Statement during such 30-day period, the purchase price payable for the Shares shall be adjusted as set forth in Purchaser’s draft Net Working Capital Statement, and payment made in accordance with Section 1.5. If the Sellers’ Agent objects to Purchaser’s draft Net Working Capital Statement, the Sellers’ Agent shall notify Purchaser in writing of such objection within 30 calendar days after the Sellers’ Agent’s receipt thereof (such notice setting forth in reasonable detail the basis for such objection). During such 30-day period (the “NWC Review Period”), subject to the execution by the Sellers’ Agent of a confidentiality agreement reasonably acceptable to Purchaser (the “NWC Confidentiality Agreement”), Purchaser shall permit the Sellers’ Agent access to such work papers relating to the preparation of Purchaser’s draft Net Working Capital Statement as may be reasonably necessary to permit the Sellers’ Agent to review the manner in which Purchaser’s draft Net Working Capital Statement was prepared (such papers, the “NWC Papers” and such review, the “NWC Review”). Without limitation of the foregoing, the Sellers’ Agent may, at its expense, engage an independent accountant (the “Sellers’ Agent’s NWC Accountant”) to assist the Sellers’ Agent in conducting the NWC Review, and, subject to the execution by the Sellers’ Agent’s NWC Accountant of the NWC Confidentiality Agreement, Purchaser shall, during the NWC Review Period, permit the Sellers’ Agent’s NWC Accountant access to the NWC Papers for the sole purpose of assisting the Sellers’ Agent in conducting the NWC Review. During the NWC Review Period, Purchaser shall permit the Sellers’ Agent and the Sellers’ Agent’s NWC Accountant to consult with the employees of the Company or Purchaser who prepared the draft Net Working Capital Statement to the extent reasonably necessary to interpret the NWC Papers pursuant to the NWC Review. Purchaser and the Sellers’ Agent shall thereafter negotiate in good faith to resolve any such objections. If Purchaser and the Sellers’ Agent are unable to resolve all of such objections within 10 calendar days following the end of the NWC Review Period, Purchaser and the Sellers’ Agent shall resolve the dispute by way of the Terms of Reference set forth on Schedule 1.6(e).

Determination of Actual Net Working Capital. (a) Within 60 calendar ninety (90) days after the Closing Date, Purchaser Representative shall prepare and deliver to Seller Representative a certificate (the Sellers’ Agent a draft Net Working Capital Statement in substantially the form of Schedule 1.4“Purchaser Closing Certificate”), signed by PurchaserPurchaser Representative, identifying Purchaser’s calculation setting forth, in reasonable detail, its determination of the Net Working Capital Amount and identifying any adjustments to the purchase price payable for Purchase Price and components thereof (pursuant to the Shares terms of Section 2.4) as a result of the Net Working Capital Amount such amounts being greater or less than the Target amounts set forth for such items in the Closing Payment Certificate. The Purchaser Closing Certificate (and the calculations of Net Working Capital Amountset forth therein) shall be prepared and computed in good faith, (A) without giving effect to the Closing or the Transactions and (B) in accordance with the Accounting Principles. (b) If Seller Representative objects to any of the calculations in the Purchaser Closing Certificate, then, within sixty (60) days after Seller Representative’s receipt of the Purchaser Closing Certificate, Seller Representative must deliver a written notice to Purchaser Representative specifying, in reasonable detail, its good faith determination and alternative calculation of, each item subject to dispute and the basis therefor, in each case, to the extent then known to Seller Representative (the “Dispute Notice”). If the Sellers’ Agent Seller Representative (i) does not properly and timely deliver a Dispute Notice and thereby object to Purchaser’s draft the calculation of Net Working Capital Statement as set forth in the Purchaser Closing Certificate within 30 calendar sixty (60) days after receipt thereof, or accepts (ii) provides written notice to Purchaser Representative accepting the calculation of the Purchase Price set forth in such draft Net Working Capital Statement certificate during such 30-day sixty (60)-day period, then the purchase price payable for the Shares Purchase Price (and components thereof) shall be adjusted as set forth in Purchaser’s draft Net Working Capital Statementthe Purchaser Closing Certificate, and payment shall be made in accordance with Section 1.5. If the Sellers’ Agent objects to Purchaser’s draft Net Working Capital Statement, the Sellers’ Agent shall notify Purchaser in writing of such objection within 30 calendar days after the Sellers’ Agent’s receipt thereof (such notice setting forth in reasonable detail the basis for such objection)2.4. During such 30-day period sixty (the “NWC Review Period”)60)-day period, subject to the execution by the Sellers’ Agent of a confidentiality agreement reasonably acceptable to Purchaser (the “NWC Confidentiality Agreement”), Purchaser Purchasers shall permit the Sellers’ Agent Seller Representative reasonable access to such relevant work papers and other documentation relating to the preparation of Purchaser’s draft Net Working Capital Statement the Purchaser Closing Certificate or the calculation of any amounts contained therein, as may be reasonably necessary to permit the Sellers’ Agent Seller Representative to review in detail the manner in which Purchaser’s draft Net Working Capital Statement the Purchaser Closing Certificate was prepared (or the amounts contained therein were calculated; provided, however, that such papersaccess shall not require Purchasers to disclose information covered by the attorney-client, work product or similar privilege and shall not unreasonably disrupt the “NWC Papers” and such review, the “NWC Review”). Without limitation daily operations of the foregoingBusiness. If Seller Representative provides a Dispute Notice within such sixty (60)-day period, the Sellers’ Agent may, at its expense, engage an independent accountant (the “Sellers’ Agent’s NWC Accountant”) to assist the Sellers’ Agent in conducting the NWC Review, and, subject to the execution by the Sellers’ Agent’s NWC Accountant of the NWC Confidentiality Agreement, then Purchaser shall, during the NWC Review Period, permit the Sellers’ Agent’s NWC Accountant access to the NWC Papers for the sole purpose of assisting the Sellers’ Agent in conducting the NWC Review. During the NWC Review Period, Purchaser Representative and Seller Representative shall permit the Sellers’ Agent and the Sellers’ Agent’s NWC Accountant to consult with the employees of the Company or Purchaser who prepared the draft Net Working Capital Statement to the extent reasonably necessary to interpret the NWC Papers pursuant to the NWC Review. Purchaser and the Sellers’ Agent shall thereafter negotiate in good faith to resolve the disputes set forth therein within twenty (20) days following Purchasers’ receipt of such Dispute Notice (the “Resolution Period”), and any written resolution agreed to by the parties as to any disputed items and amounts shall be final and binding on, and non-appealable by, the parties for all purposes under this Agreement. If Seller Representative delivers a Dispute Notice within such sixty (60) day period, then any items not objected to by Seller Representative (or by Purchaser Representative as a result of the items disputed by Seller Representative in any such objectionsDispute Notice) shall be final, binding, non-appealable, and conclusive for purposes of this Section 2.3. (c) If, at the conclusion of the Resolution Period, Purchaser Representative and Seller Representative have not reached an agreement on all disputes reflected in the Dispute Notice or raised by Purchaser Representative as a result of the items disputed by Seller Representative (such unresolved disputes reflected in the Dispute Notice, together with the unresolved items raised by Purchaser Representative as a result of the items disputed by Seller Representative, the “Final Disputed Items”), any such Final Disputed Items still outstanding shall be submitted by Purchaser Representative or Seller Representative to the Independent Accounting Firm. If Purchaser Each party agrees to cause to be executed, as soon as practicable, on its behalf, if requested by the Independent Accounting Firm, a reasonable engagement letter with respect to the determination to be made by the Independent Accounting Firm. The Independent Accounting Firm shall assess and determine only the Final Disputed Items, and the Sellers’ Agent are unable Independent Accounting Firm’s determination thereof shall be based upon and consistent with the terms and conditions of this Agreement. The determination by the Independent Accounting Firm of the Final Disputed Items shall be based solely on written presentations made with respect thereto by Purchaser Representative and Seller Representative to resolve the Independent Accounting Firm and not on the Independent Accounting Firm’s independent review. Purchaser Representative and Seller Representative shall use their commercially reasonable efforts to make their respective written presentations as promptly as practicable following submission to the Independent Accounting Firm of the disputed items (but in no event later than thirty (30) days) after engagement of the Independent Accounting Firm, all written materials included in such presentations made to the Independent Accounting Firm shall be promptly shared between Purchaser Representative and Seller Representative, and each such party shall be entitled to respond to the presentation of the other party and any questions and requests of the Independent Accounting Firm, in each case in writing to the Independent Accounting Firm with a copy to the other party. Notwithstanding the foregoing, neither Seller Representative nor Purchaser Representative, nor any of their respective Representatives and Affiliates, shall have any ex parte conversations or meetings with the Independent Accounting Firm without the prior written consent of the other party, as applicable (other than with respect to ministerial matters similar to matters that would be discussed with a clerk of a court). In deciding any matter, the Independent Accounting Firm (i) shall be bound by the provisions of this Agreement including the definitions and this Section 2.3 and (ii) may not assign a value to any Final Disputed Item (A) greater than the greatest value for such objections item claimed by Purchaser Representative or Seller Representative or (B) less than the smallest value for such item claimed by Purchaser Representative or Seller Representative. The Independent Accounting Firm’s determination shall be made within 10 calendar ninety (90) days following after its engagement (which engagement shall be made no later than ten (10) Business Days after the end of the NWC Review Resolution Period), or as soon thereafter as possible, shall be set forth in a written statement, including the basis for each conclusion, delivered to Seller Representative and Purchaser Representative and shall be final, conclusive, non-appealable and binding on all parties and for all purposes hereunder; provided, however, that such determination may be reviewed, corrected or set aside by a court of competent jurisdiction upon a finding that the Sellers’ Agent shall resolve the dispute by way Independent Accounting Firm committed Manifest Error with respect to its determination. The determination of the Terms of Reference set forth on Schedule 1.6(e).Independent Accounting Firm shall not be deemed an award subject to review under the Federal Arbitration Act or any other statute. For purposes hereof, “Manifest

Determination of Actual Net Working Capital. Within 60 calendar sixty (60) days after the Closing Date, Purchaser shall Buyer will prepare and deliver to the Sellers’ Agent Seller Representative a draft Net Working Capital Statement in substantially certificate (the form of Schedule 1.4“NWC Certificate”), signed by PurchaserBuyer, identifying Purchasercertifying Buyer’s calculation good faith determination of the actual Closing Balance Sheet and Net Working Capital Amount Capital, and identifying any adjustments to the purchase price payable for the Shares Purchase Price as a result of the Net Working Capital Amount such amounts being greater or less than the Target amount of Estimated Net Working Capital Amountset forth on the Flow of Funds Memorandum, taking into account the adjustments in Section 1.2(d). The sixty-day period for Buyer to prepare the NWC Certificate may be extended at Buyer’s option by fifteen (15) days upon notice from Buyer to the Seller Representative. If the Sellers’ Agent Seller Representative does not object to Purchaser’s draft the calculation of actual Net Working Capital Statement in the NWC Certificate within 30 calendar thirty (30) days after the Seller Representative’s receipt thereof, or accepts such draft Buyer’s determination of the Net Working Capital Statement as set forth in the NWC Certificate during such thirty (30-) day period, then the purchase price payable for the Shares shall Purchase Price will be adjusted as set forth in Purchaser’s draft Net Working Capital Statementthe NWC Certificate, and payment made in accordance with Section 1.51.4. If the Sellers’ Agent Seller Representative objects to Purchaser’s draft the calculation of actual Net Working Capital Statementin the NWC Certificate, then the Sellers’ Agent shall Seller Representative must notify Purchaser Buyer in writing of such objection within 30 calendar thirty (30) days after the Sellers’ AgentSeller Representative’s receipt thereof (such notice setting forth in reasonable detail the basis for such objection, an “Objection Notice”). During such thirty (30-) day period (the “NWC Review Period”)period, subject to the execution by the Sellers’ Agent of a confidentiality agreement reasonably acceptable to Purchaser (the “NWC Confidentiality Agreement”), Purchaser shall Buyer will permit the Sellers’ Agent Seller Representative and his or her agents access to such work papers relating to the preparation of Purchaser’s draft Net Working Capital Statement the NWC Certificate, as may be reasonably necessary to permit the Sellers’ Agent Seller Representative to review in detail the manner in which Purchaser’s draft Net Working Capital Statement was prepared (such papers, the “NWC Papers” and such review, the “NWC Review”). Without limitation of the foregoing, the Sellers’ Agent may, at its expense, engage an independent accountant (the “Sellers’ Agent’s NWC Accountant”) to assist the Sellers’ Agent in conducting the NWC ReviewCertificate was prepared, and, subject and all information received pursuant to the execution this Section 1.3 will be kept confidential pursuant to Section 5.1(b) by the Sellers’ Agent’s NWC Accountant of the NWC Confidentiality Agreement, Purchaser shall, during the NWC Review Period, permit the Sellers’ Agent’s NWC Accountant access to the NWC Papers for the sole purpose of assisting the Sellers’ Agent in conducting the NWC Reviewparty receiving it. During the NWC Review Period, Purchaser shall permit the Sellers’ Agent Buyer and the Sellers’ Agent’s NWC Accountant to consult with the employees of the Company or Purchaser who prepared the draft Net Working Capital Statement to the extent reasonably necessary to interpret the NWC Papers pursuant to the NWC Review. Purchaser and the Sellers’ Agent shall Seller Representative will thereafter negotiate in good faith to resolve any such objections. If Purchaser Buyer and the Sellers’ Agent Seller Representative are unable to resolve all of such objections differences within 10 twenty (20) calendar days following the end of Buyer’s receipt of the NWC Review PeriodObjection Notice, Purchaser and then upon request of either party the Sellers’ Agent shall parties will resolve the dispute by way of the Terms of Reference set forth on Schedule 1.6(e)Dispute Resolution Procedure.