Common use of Determination of Adjustment Amount Clause in Contracts

Determination of Adjustment Amount. (i) Within 90 days after the Closing Date, Buyer shall prepare and deliver to Seller a statement setting forth its calculation of (i) Closing Net Working Capital, (ii) the Closing Net Working Capital Adjustment Amount, (iii) Closing Indebtedness, (iv) Closing Cash, (v) Transaction Expenses and (vi) on the basis of the foregoing, a calculation of the Closing Purchase Price (together with the calculations referred to in clauses (i) through (v) above, the “Final Closing Statement”). The Closing Net Working Capital, Closing Indebtedness and Closing Cash shall be prepared in accordance with the Accounting Principles and the defined terms used in this Section 1.07. (ii) Seller shall have 30 days after its receipt of the Final Closing Statement (the “Review Period”) to review the Final Closing Statement. During the Review Period, Buyer shall cause the Company to provide Seller and its Representatives reasonable access to the books and records of the Company, the personnel of, and work papers (subject to the execution of customary work paper access letters if requested) prepared by, Buyer, the Company and each of its Representatives to the extent that they relate to the Final Closing Statement and to historical financial information (to the extent in the possession of the Company) relating to the Final Closing Statement as Seller may reasonably request for the purpose of reviewing the Final Closing Statement and to prepare a Statement of Objections, provided that such access shall be in a manner that does not materially interfere with the normal business operations of Buyer or the Company. (iii) On or prior to the last day of the Review Period, Seller may object to the Final Closing Statement by delivering to Buyer a written statement (the “Statement of Objections”) setting forth its objections in reasonable detail, indicating each disputed item or amount and the basis for its disagreement (including for each component of the calculations, the amount of the Seller’s calculation of such component and reasons for the difference). Any items not disagreed with in the Statement of Objections will be deemed to have been accepted by Seller. If Seller fails to deliver the Statement of Objections before the expiration of the Review Period, then the Final Closing Statement (including the determinations included therein) shall be deemed to have been accepted by Seller, which shall be final, binding and conclusive for all purposes hereunder. If Seller delivers to Buyer a Statement of Objections before the expiration of the Review Period, then Buyer and Seller shall negotiate in good faith to resolve such objections within 30 days after delivery of the Statement of Objections (the “Resolution Period”). (iv) If Seller and Buyer fail to reach an agreement with respect to all of the matters in the Statement of Objections before expiration of the Resolution Period (or such longer period as they may mutually agree), then any amounts remaining in dispute (the “Disputed Amounts”) shall be submitted for resolution to the San Francisco office of M▇▇▇ A▇▇▇▇ or, if M▇▇▇ A▇▇▇▇ is unable to serve or at the time of such proposed engagement is no longer independent, Buyer and Seller shall appoint by mutual agreement the office of an impartial nationally recognized firm of independent certified public accountants other than the accountants of Seller, any Member, Buyer, the Company or their Affiliates (the “Independent Accountant”) who, acting as experts and not arbitrators, shall resolve the Disputed Amounts only. Buyer and Seller shall promptly provide their assertions regarding the Disputed Amounts in writing to the Independent Accountant and to each other. (v) The fees and expenses of the Independent Accountant relating to the work, if any, to be performed by the Independent Accountant hereunder shall be paid by Seller, on the one hand, and by Buyer, on the other hand, based upon a fraction, the numerator of which is the portion of the aggregate amount of the Disputed Amounts not awarded to the applicable Party and the denominator of which is the aggregate amount of the Disputed Amounts. (For example, if Seller challenges items underlying the calculations of Closing Net Working Capital, Closing Indebtedness, Closing Cash and/or Transaction Expenses in the net amount of $1,000,000, and the Independent Accountant determines that Seller has a valid claim for $400,000 of the $1,000,000, Seller shall bear 60% of the fees and expenses of the Independent Accountant and Buyer shall bear 40% of the fees and expenses of the Independent Accountant.) (vi) The Independent Accountant shall be instructed to make a determination as a soon as practicable within 30 days (or such other time as Buyer and Seller agree in writing) after its engagement, and to send copies of such written determination to Buyer and Seller. The Independent Accountant shall base its determination solely on the written submissions of the Parties and shall not conduct an independent investigation. The Independent Accountant shall not assign a value to any Disputed Amounts submitted to the Independent Accountant greater than the greatest value for such item claimed by either Party (in the Final Closing Statement, in the case of claims by Buyer, or in the Statement of Objections, in the case of claims by Seller) or less than the smallest value for such item claimed by either Party (in the Final Closing Statement, in the case of claims by Buyer, or in the Statement of Objections, in the case of claims by Seller). The Independent Accountant may not award the Parties in the aggregate more than the amount in dispute. The determination of the Independent Accountant shall be final, conclusive and binding on the Parties absent manifest error or fraud. The date on which Closing Net Working Capital, Closing Indebtedness, Closing Cash, the Closing Net Working Capital Adjustment Amount, Transaction Expenses and the Closing Purchase Price are finally determined in accordance with this Section 1.07(a)(vi) is hereinafter referred to as the “Determination Date.”

Determination of Adjustment Amount. (ia) Within 90 120 days after the Closing Date, Buyer shall CES will prepare and deliver to Seller Parent a statement setting forth its calculation of (i) Closing Net Working Capital, (ii) the Closing Net Working Capital Adjustment Amount, (iii) Closing Indebtedness, (iv) Closing Cash, (v) Transaction Expenses and (vi) on the basis of the foregoing, a calculation of the Closing Purchase Price (together with the calculations referred to in clauses (i) through (v) above, the “Final Closing Statement”). The Closing Net Working Capital, Closing Indebtedness and Closing Cash shall be prepared in accordance with the Accounting Principles and the defined terms used in this Section 1.07. (ii) Seller shall have 30 days after its receipt of the Final Closing Statement (the “Review Period”) to review the Final Closing Statement. During the Review Period, Buyer shall cause the Company to provide Seller and its Representatives reasonable access to the books and records of the Company, the personnel of, and work papers (subject to the execution of customary work paper access letters if requested) prepared by, Buyer, the Company and each of its Representatives to the extent that they relate to the Final Closing Statement and to historical financial information (to the extent in the possession of the Company) relating to the Final Closing Statement as Seller may reasonably request for the purpose of reviewing the Final Closing Statement and to prepare a Statement of Objections, provided that such access shall be in a manner that does not materially interfere with the normal business operations of Buyer or the Company. (iii) On or prior to the last day of the Review Period, Seller may object to the Final Closing Statement by delivering to Buyer a written statement (the “Statement of ObjectionsPost-Closing Adjustment Statement”) setting forth its objections that reflects CES’s determination of the Adjustment Amount. In addition, CES will provide Parent with supporting calculations, in reasonable detail, indicating each disputed item or amount and for such determinations at the basis for its disagreement (including for each component time it delivers the Post-Closing Adjustment Statement. Parent will cooperate with CES in connection with CES’s preparation of the calculationsPost-Closing Adjustment Statement and related information, the amount of the Seller’s calculation of such component and reasons for the difference). Any items not disagreed will provide CES with access to its books, records, information, and employees as CES may reasonably request. (b) The amounts determined by CES as set forth in the Post-Closing Adjustment Statement of Objections will be deemed to have been accepted by Seller. If Seller fails to deliver the Statement of Objections before the expiration of the Review Period, then the Final Closing Statement (including the determinations included therein) shall be deemed to have been accepted by Seller, which shall be final, binding binding, and conclusive for all purposes hereunder. If Seller delivers unless, and only to Buyer a Statement of Objections before the expiration of the Review Periodextent, then Buyer and Seller shall negotiate in good faith to resolve such objections that within 30 days after delivery CES has delivered the Post-Closing Adjustment Statement Parent notifies CES of any dispute with matters set forth in the Post-Closing Adjustment Statement. Any such notice of dispute delivered by Parent (an “Adjustment Dispute Notice”) will identify with specificity each item in the Post-Closing Adjustment Statement with respect to which Parent disagrees, the basis of Objections (the “Resolution Period”)such disagreement, and Parent’s position with respect to such disputed item. (ivc) If Seller Parent delivers an Adjustment Dispute Notice in compliance with Section 3.02(b), then Parent and Buyer fail CES will attempt to reconcile their differences and any resolution by them as to any disputed amounts will be final, binding, and conclusive for all purposes on the Parties. If Parent and CES are unable to reach an agreement a resolution with respect to all disputed items within 45 days of delivery of the matters in the Statement of Objections before expiration of the Resolution Period (or such longer period as they may mutually agree)Adjustment Dispute Notice, then Parent and CES will submit any amounts items remaining in dispute (the “Disputed Amounts”) shall be submitted for determination and resolution to the San Francisco office of M▇▇▇ A▇▇▇▇ orIndependent Accounting Firm, if M▇▇▇ A▇▇▇▇ is unable which will be instructed to serve or at the time of such proposed engagement is no longer independent, Buyer determine and Seller shall appoint by mutual agreement the office of an impartial nationally recognized firm of independent certified public accountants other than the accountants of Seller, any Member, Buyer, the Company or their Affiliates (the “Independent Accountant”) who, acting as experts and not arbitrators, shall resolve the Disputed Amounts only. Buyer and Seller shall promptly provide their assertions regarding the Disputed Amounts in writing report to the Parties, within 30 days after such submission, upon such remaining disputed items. The report of the Independent Accountant Accounting Firm will be final, binding, and to each other. (v) conclusive on the Parties for all purposes. The fees and expenses disbursements of the Independent Accountant relating to Accounting Firm will be allocated between Parent and CES (acting on behalf of the work, if any, to Company Stockholders) so that Parent’s share of such fees and disbursements will be performed by in the Independent Accountant hereunder shall be paid by Seller, on the one hand, and by Buyer, on the other hand, based upon a fraction, the numerator of which is the portion of same proportion that the aggregate amount of the Disputed Amounts not awarded to the applicable Party and the denominator of which is the aggregate amount of the Disputed Amounts. (For example, if Seller challenges such remaining disputed items underlying the calculations of Closing Net Working Capital, Closing Indebtedness, Closing Cash and/or Transaction Expenses in the net amount of $1,000,000, and the Independent Accountant determines that Seller has a valid claim for $400,000 of the $1,000,000, Seller shall bear 60% of the fees and expenses of the Independent Accountant and Buyer shall bear 40% of the fees and expenses of the Independent Accountant.) (vi) The Independent Accountant shall be instructed to make a determination as a soon as practicable within 30 days (or such other time as Buyer and Seller agree in writing) after its engagement, and to send copies of such written determination to Buyer and Seller. The Independent Accountant shall base its determination solely on the written submissions of the Parties and shall not conduct an independent investigation. The Independent Accountant shall not assign a value to any Disputed Amounts so submitted to the Independent Accountant greater than the greatest value for such item claimed Accounting Firm that is unsuccessfully disputed by either Party Parent (in the Final Closing Statement, in the case of claims as finally determined by Buyer, or in the Statement of Objections, in the case of claims by Seller) or less than the smallest value for such item claimed by either Party (in the Final Closing Statement, in the case of claims by Buyer, or in the Statement of Objections, in the case of claims by Seller). The Independent Accountant may not award the Parties in the aggregate more than the amount in dispute. The determination of the Independent Accountant shall be final, conclusive and binding on Accounting Firm) bears to the Parties absent manifest error or fraud. The date on which Closing Net Working Capital, Closing Indebtedness, Closing Cash, total amount of such remaining disputed amounts so submitted to the Closing Net Working Capital Adjustment Amount, Transaction Expenses and the Closing Purchase Price are finally determined in accordance with this Section 1.07(a)(vi) is hereinafter referred to as the “Determination DateIndependent Accounting Firm.”