Common use of Determination of Net Cash Clause in Contracts

Determination of Net Cash. Advance Balance as at the ---------------------------------------------------- Closing. Purchaser shall have 30 days following receipt of the Closing ------- Statement to conduct a review of the Cash Advance statement contained therein. Seller's determination of the Net Cash Advance Balance shall be conclusive and binding on the parties hereto, absent manifest error (it being understood and agreed that no Cash Advance in respect of the Excluded Assets or Excluded Liabilities or relating to an Unrelated Business shall be included on the Closing Statement). If Purchaser fails to raise an objection to the Net Cash Advance Balance during such 30 days period, Purchaser shall be deemed to have accepted the Net Cash Advance Balance as set forth in the Closing Statement. Any objections to the Net Cash Advance Balance raised by Purchaser shall be resolved in good faith by the parties hereto within 15 days of receipt of any timely objection. Purchaser shall have no right to object to the methods, procedures and principles used by Seller in determining or recording the Cash Advances. If Seller and Purchaser cannot resolve Purchaser's objections within such 15 days period, Seller and Purchaser shall, within 10 days following the expiration of such 15 days period, select a mutually acceptable accounting firm to resolve such objections. If Seller and Purchaser are unable to agree as to the selection of such accounting firm before the expiration of such 10 days period, the parties hereto irrevocably designate Deloitte & Touche as the accounting firm. The selected accounting firm shall be retained jointly by Seller and Purchaser on the condition, among other things, that it shall resolve Purchaser's objections and provide a revised Closing Statement to Seller and Purchaser within 30 days after its selection. The Closing Statement, as accepted by Purchaser without objection or as revised by mutual agreement of the parties hereto or by the accounting firm (in any such case, the "Final Closing Statement"), shall be conclusive and binding on the parties hereto. Seller and Purchaser shall each pay one-half of the fees and expenses of any accounting firm retained pursuant to this Subsection 5.18.

Determination of Net Cash. Advance Balance as at the ---------------------------------------------------- Closing. ----------------------------------------------------------- Purchaser shall have 30 days following receipt of the Closing ------- Statement to conduct a review of the Cash Advance statement contained therein. Seller's determination of the Net Cash Advance Balance shall be conclusive and binding on the parties hereto, absent manifest error (it being understood and agreed that no Cash Advance in respect of the Excluded Assets or Excluded Liabilities or relating to an Unrelated Business shall be included on the Closing Statement). If Purchaser fails to raise an objection to the Net Cash Advance Balance during such 30 days period, Purchaser shall be deemed to have accepted the Net Cash Advance Balance as set forth in the Closing Statement. Any objections to the Net Cash Advance Balance raised by Purchaser shall be resolved in good faith by the parties hereto within 15 days of receipt of any timely objection. Purchaser shall have no right to object to the methods, procedures and principles used by Seller in determining or recording the Cash Advances. If Seller and Purchaser cannot resolve Purchaser's objections within such 15 days period, Seller and Purchaser shall, within 10 days following the expiration of such 15 days period, select a mutually acceptable accounting firm to resolve such objections. If Seller and Purchaser are unable to agree as to the selection of such accounting firm before the expiration of such 10 days period, the parties hereto irrevocably designate Deloitte & Touche as the accounting firm. The selected accounting firm shall be retained jointly by Seller and Purchaser on the condition, among other things, that it shall resolve Purchaser's objections and provide a revised Closing Statement to Seller and Purchaser within 30 days after its selection. The Closing Statement, as accepted by Purchaser without objection or as revised by mutual agreement of the parties hereto or by the accounting firm (in any such case, the "Final Closing Statement"), shall be conclusive and binding on the parties hereto. Seller and Purchaser shall each pay one-half of the fees and expenses of any accounting firm retained pursuant to this Subsection 5.185.18.7. Purchaser shall make the books, records and financial staff of the Subsidiaries available to Seller, its accountants and other representatives at reasonable time and upon reasonable request, in connection with the preparation of the Closing Statement. Each of Seller and Purchaser shall make their books, records and financial staff, and the books and records of the Subsidiaries, available to any accounting firm engaged by them pursuant to this Subsection 5.18.7 for the purpose of resolving any of Purchaser's objections to the Closing Statement.

Determination of Net Cash. Advance Balance as at the ---------------------------------------------------- Closing. Purchaser shall have 30 (a) Within two (2) calendar days following receipt the Determination Date, Phoenix will deliver to the Company a schedule (the “Net Cash Schedule”) setting forth, in reasonable detail, Phoenix’s calculation of Net Cash (as determined in accordance with the Closing ------- Statement to conduct a review definition of Net Cash) (the “Net Cash Advance statement contained therein. Seller's determination Calculation”) as of such Determination Date prepared by Phoenix’s Chief Financial Officer, together with the work papers and back-up materials used in preparing the applicable Net Cash Schedule. (b) Within two (2) Business Days after Phoenix delivers the Net Cash Advance Balance shall be conclusive and binding on Schedule to the parties heretoCompany (the “Response Date”), absent manifest error the Company will have the right to dispute any part of such Net Cash Schedule by delivering a written notice to that effect to Phoenix (it being understood and agreed that no Cash Advance in respect of the Excluded Assets or Excluded Liabilities or relating to an Unrelated Business shall be included on the Closing Statementa “Dispute Notice”). If Purchaser fails to raise an objection Any Dispute Notice will identify in reasonable detail the nature of any proposed revisions to the Net Cash Advance Balance during Calculation and will be accompanied by reasonably detailed materials supporting the basis for such 30 days periodproposed revisions. (c) If on or prior to the Response Date, Purchaser shall be deemed (i) the Company notifies Phoenix in writing that it has no objections to have accepted the Net Cash Advance Balance Calculation set forth in the Net Cash Schedule or (ii) the Company fails to deliver a Dispute Notice as set forth above, then the Net Cash Calculation as set forth in the Closing StatementNet Cash Schedule will be deemed to have been finally determined for purposes of this Agreement and to represent the Net Cash at the Determination Date for purposes of this Agreement, except in the case of intentional or willful misrepresentation. (d) If the Company delivers a Dispute Notice on or prior to the Response Date as provided above, then representatives of Phoenix and the Company will promptly meet and attempt in good faith to promptly resolve the disputed item(s) and negotiate an agreed-upon determination of Net Cash within three (3) calendar days after the Response Date, which agreed upon Net Cash amount will be deemed to have been finally determined for purposes of this Agreement and to represent the Net Cash at the Determination Date for purposes of this Agreement. (e) In the event no agreement is reached within three (3) calendar days after the Response Date and the disagreements would result in at least a $250,000 adjustment to Net Cash, then the Parties agree to adjourn the Phoenix Stockholder Meeting to a date mutually agreed upon so that such disagreement can be resolved in accordance with the terms of clause (f) below. (f) If Phoenix and the Company are unable to resolve any disagreement between them concerning the Net Cash Calculation or any component thereof (the “Dispute”) within three (3) calendar days, then the Dispute may be referred by Phoenix or the Company for determination to McGladrey LLP. Any objections If McGladrey LLP is unwilling to serve in such capacity then the Company and Phoenix will refer the Dispute to the Boston, Massachusetts office of a regionally or nationally recognized accounting firm that is mutually selected by Phoenix and the Company. If the Parties are unable to select a regionally or nationally recognized accounting firm within five (5) calendar days, then either Phoenix or the Company may thereafter request that the Boston, Massachusetts office of the American Arbitration Association make such selection (either McGladrey LLP or such other accounting firm, as applicable, the “Independent Accountant”). Each of Phoenix and the Company will provide the Independent Accountant and the other Party with a statement of its position as to the amount for each Dispute within ten (10) calendar days from the date of the referral. The Independent Accountant will make a written determination as promptly as practicable, but in any event within fifteen (15) calendar days after the date on which the Dispute is referred to the Independent Accountant, by determining the actual Net Cash, which will be deemed to have been finally determined for purposes of this Agreement and to represent the Net Cash at the Determination Date for purposes of this Agreement, and the applicable Exchange Ratio. If at any time Phoenix and the Company resolve the Dispute, then notwithstanding the preceding provisions of this clause (f), the Independent Accountant’s involvement promptly will be discontinued and the Net Cash Calculation will be revised, if necessary, to reflect such resolution and thereupon will be final and binding for all purposes under this Agreement, except in the case of intentional or willful misrepresentation or manifest error. The Parties will make readily available to the Independent Accountant all relevant books and records relating to the Net Cash Advance Balance raised by Purchaser shall be resolved Calculation and the calculation set forth in good faith the Net Cash Schedule and all other items reasonably requested by the parties hereto within 15 days of receipt of any timely objection. Purchaser shall have no right to object to Independent Accountant in connection with resolving the methods, procedures and principles used by Seller in determining or recording the Cash Advances. If Seller and Purchaser cannot resolve Purchaser's objections within such 15 days period, Seller and Purchaser shall, within 10 days following the expiration of such 15 days period, select a mutually acceptable accounting firm to resolve such objections. If Seller and Purchaser are unable to agree as to the selection of such accounting firm before the expiration of such 10 days period, the parties hereto irrevocably designate Deloitte & Touche as the accounting firmDispute. The selected accounting firm shall be retained jointly by Seller and Purchaser on the condition, among other things, that it shall resolve Purchaser's objections and provide a revised Closing Statement to Seller and Purchaser within 30 days after its selection. The Closing Statement, as accepted by Purchaser without objection or as revised by mutual agreement of the parties hereto or by the accounting firm (in any such case, the "Final Closing Statement"), shall be conclusive and binding on the parties hereto. Seller and Purchaser shall each pay one-half of the fees costs and expenses of any accounting firm retained pursuant to this Subsection 5.18the Independent Accountant will be borne equally by Phoenix and the Company.

Determination of Net Cash. Advance Balance as at the ---------------------------------------------------- Closing. Purchaser shall have 30 (i) Within two (2) calendar days following receipt the Determination Date, the Company will deliver to ANI a schedule (the “Net Cash Schedule”) setting forth, in reasonable detail, the Company’s calculation of Net Cash (as determined in accordance with the Closing ------- Statement definition of Net Cash set forth above) (the “Net Cash Calculation”) as of such Determination Date prepared by the Company’s Chief Financial Officer, together with the work papers and back-up materials used in preparing the applicable Net Cash Schedule and as part of such documentation, the Company shall include letters that are duly executed by the following Persons to conduct which such payment of Liabilities are to be made, in forms reasonably satisfactory to ANI (including a review of fixed capped amount to be paid by the Cash Advance statement contained therein. Seller's determination of Company): the Company’s investment bankers, attorneys and accountants. (ii) Within three (3) Business Days after the Company delivers the Net Cash Advance Balance shall be conclusive and binding on Schedule to ANI (the parties hereto“Response Date”), absent manifest error ANI will have the right to dispute any part of such Net Cash Schedule by delivering a written notice to that effect to the Company (it being understood and agreed that no Cash Advance in respect of the Excluded Assets or Excluded Liabilities or relating to an Unrelated Business shall be included on the Closing Statementa “Dispute Notice”). If Purchaser fails to raise an objection Any Dispute Notice will identify in reasonable detail the nature of any proposed revisions to the Net Cash Advance Balance during Calculation and will be accompanied by reasonably detailed materials supporting the basis for such 30 days periodproposed revisions. (iii) If on or prior to the Response Date, Purchaser shall be deemed (i) ANI notifies the Company in writing that it has no objections to have accepted the Net Cash Advance Balance Calculation set forth in the Net Cash Schedule or (ii) ANI fails to deliver a Dispute Notice as set forth above, then the Net Cash Calculation as set forth in the Closing StatementNet Cash Schedule will be deemed to have been finally determined for purposes of this Agreement and to represent the Net Cash at the Determination Date for purposes of this Agreement, except in the case of intentional or willful misrepresentation. (iv) If ANI delivers a Dispute Notice on or prior to the Response Date as provided above, then representatives of the Company and ANI will promptly meet and attempt in good faith to promptly resolve the disputed item(s) and negotiate an agreed-upon determination of Net Cash within two (2) calendar days after the Response Date, which agreed upon Net Cash amount will be deemed to have been finally determined for purposes of this Agreement and to represent the Net Cash at the Determination Date for purposes of this Agreement. (v) In the event no agreement is reached within four (4) calendar days after the Response Date and the disagreements would result in at least a Two Million Dollar ($2,000,000) adjustment to Net Cash or ANI reasonably believes the amount of Net Cash is less than the Minimum Net Cash amount, then the Parties agree to postpone the Company Special Meeting to a date mutually agreed upon so that such disagreement can be resolved in accordance with the terms of clause (vi) below. (vi) If the Company and ANI are unable to resolve any disagreement between them concerning the Net Cash Calculation or any component thereof (the “Dispute”) within three (3) calendar days, then the Dispute may be referred by the Company or ANI for determination to RSM McGladrey Inc. If RSM McGladrey Inc. is unwilling to serve in such capacity then ANI and the Company will refer the Dispute to the Chicago, Illinois office of a regionally or nationally recognized accounting firm that is mutually selected by the Company and ANI. Any objections If the Parties are unable to select a regionally or nationally recognized accounting firm within five (5) calendar days, then either the Company or ANI may thereafter request that the Chicago, Illinois office of the American Arbitration Association make such selection (as applicable, the “Independent Accountant”). Each of the Company and ANI will provide the Independent Accountant and the other Party with a statement of its position as to the amount for each Dispute within ten (10) calendar days from the date of the referral. The Independent Accountant will make a written determination as promptly as practicable, but in any event within fifteen (15) calendar days after the date on which the Dispute is referred to the Independent Accountant, by determining the actual Net Cash and the applicable Exchange Ratio. If at any time the Company and ANI resolve their dispute, then notwithstanding the preceding provisions of this clause (vi), the Independent Accountant’s involvement promptly will be discontinued and the Net Cash Calculation will be revised, if necessary, to reflect such resolution and thereupon will be final and binding for all purposes under this Agreement, except in the case of intentional or willful misrepresentation or manifest error. The Parties will make readily available to the Independent Accountant all relevant books and records relating to the Net Cash Advance Balance raised by Purchaser shall be resolved Calculation and the calculation set forth in good faith the Net Cash Schedule and all other items reasonably requested by the parties hereto within 15 days of receipt of any timely objection. Purchaser shall have no right to object to Independent Accountant in connection with resolving the methods, procedures and principles used by Seller in determining or recording the Cash Advances. If Seller and Purchaser cannot resolve Purchaser's objections within such 15 days period, Seller and Purchaser shall, within 10 days following the expiration of such 15 days period, select a mutually acceptable accounting firm to resolve such objections. If Seller and Purchaser are unable to agree as to the selection of such accounting firm before the expiration of such 10 days period, the parties hereto irrevocably designate Deloitte & Touche as the accounting firmDispute. The selected accounting firm shall be retained jointly by Seller and Purchaser on the condition, among other things, that it shall resolve Purchaser's objections and provide a revised Closing Statement to Seller and Purchaser within 30 days after its selection. The Closing Statement, as accepted by Purchaser without objection or as revised by mutual agreement of the parties hereto or by the accounting firm (in any such case, the "Final Closing Statement"), shall be conclusive and binding on the parties hereto. Seller and Purchaser shall each pay one-half of the fees costs and expenses of the Independent Accountant will be borne by the Company (however, only 50% of such amount will be included in the calculation of Net Cash). (vii) Once the Net Cash at the Determination Date has been finally determined, the Company will issue a news release publicly announcing (i) the Company’s Net Cash at the Determination Date and (ii) any accounting firm retained pursuant adjustment to this Subsection 5.18the Exchange Ratio based on the Company’s Net Cash at the Determination Date.