Common use of Determination of Net Cash Clause in Contracts

Determination of Net Cash. (a) Not less than ten days prior to the Closing (the “Determination Date”), Parent will deliver to the Company a schedule (the “Net Cash Schedule”) setting forth, in reasonable detail, Parent’s good faith, estimated calculation of Net Cash (as determined in accordance with the definition of Net Cash) (the “Net Cash Calculation” and the date of delivery of such schedule, the “Delivery Date”) as of the projected Closing Date, prepared and certified by the Vice President-Finance of Parent. If the Closing does not occur within 15 days from the Delivery Date, then an updated Net Cash Schedule shall be delivered to the Company in accordance with this Section 1.11. Parent shall make available to the Company, as reasonably requested by the Company, the work papers and back-up materials used or useful in preparing the Net Cash Schedule. (b) Within five days after the Delivery Date (the last day of such period, the “Response Date”), the Company shall have the right to dispute any part of the Net Cash Schedule by delivering a written notice to that effect to Parent (a “Dispute Notice”). Any Dispute Notice shall identify in reasonable detail the nature and amounts of any proposed revisions to the Net Cash Calculation and will be accompanied by reasonably detailed materials supporting the basis for such proposed revisions. (c) If, on or prior to the Response Date, (i) the Company notifies Parent in writing that it has no objections to the Net Cash Calculation set forth in the Net Cash Schedule or (ii) the Company fails to deliver a Dispute Notice as provided in Section 1.11(b), then the Net Cash Calculation as set forth in the Net Cash Schedule shall 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. (d) If the Company delivers a Dispute Notice on or prior to the Response Date, then Representatives of Parent and the Company shall promptly meet and attempt in good faith to resolve the disputed item(s) and negotiate an agreed-upon determination of Net Cash, which agreed upon Net Cash amount shall 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) If Representatives of Parent and the Company are unable to negotiate an agreed-upon determination of the Net Cash or any component thereof pursuant to Section 1.11(d) within two Business Days after delivery of the Dispute Notice (or such other period as Parent and the Company may mutually agree upon), then any remaining disagreements as to the calculation of Net Cash shall be referred to an independent auditor jointly selected by Parent and the Company. If the parties are unable to select an independent auditor within five days, then either Parent or Company may thereafter request that the Boston, Massachusetts Office of the American Arbitration Association (“AAA”) make such selection (either the independent auditor jointly selected by both parties or such independent auditor selected by the AAA, the “Accounting Firm”). The parties shall promptly deliver to the Accounting Firm the work papers and back-up materials used in preparing the Net Cash Schedule and all other items reasonably requested by the Accounting Firm in connection with resolving the disputed items, and shall use commercially reasonable efforts to cause the Accounting Firm to make its determination as promptly as practicable, but in any event, within fifteen days of accepting its selection. The Company and Parent will provide the Accounting Firm a statement of its position as to the amount for each disputed item within five Business Days of the selection of the Accounting Firm. The determination of the Accounting Firm shall be limited to the disagreements submitted to the Accounting Firm. The determination of the amount of Net Cash made by the Accounting Firm shall be made in writing delivered to each of Parent and the Company, shall be final and binding on Parent and the Company (absent manifest error) and shall 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 Parent and the Company resolve the disputed items, then, notwithstanding the preceding provisions of this Section 1.11(e), the Accounting Firm’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 costs and expenses of the Accounting Firm shall be borne equally by Parent and the Company, and, notwithstanding the foregoing, such portion of the costs and expenses of the Accounting Firm borne by Parent and any fees, costs or expenses incurred by the Parent following the Determination Date in connection with the procedures set forth in this Section 1.11(e) shall be deducted from the final determination of the amount of Net Cash.

Determination of Net Cash. (a) Not less than ten At least fifteen (15) calendar days prior to before the Closing (Date, the “Determination Date”), Parent Company will deliver to the Company Parent a preliminary schedule (the “Company Net Cash Schedule”) setting forth, in reasonable detail, Parentthe Company’s good faith, estimated calculation of Net Cash (as determined in accordance with of the definition of Net Cash) Effective Time (the “Company Net Cash Calculation” and the date and, such time for determination of delivery of such scheduleNet Cash, the “Delivery DateCash Determination Time”) as of ). At 5:00 pm Central Time or promptly thereafter on the projected Closing Datelast Business Day prior to the Effective Time, prepared and certified by the Vice President-Finance of Parent. If the Closing does not occur within 15 days from the Delivery Date, then Company shall deliver an updated Company Net Cash Schedule shall be delivered to (the “Final Company Net Cash Schedule”) setting forth the Company in accordance with Net Cash Calculation as finally determined pursuant to this Section 1.112.13. Parent The Company shall make available to Parent (electronically to the Companyextent possible), as reasonably requested by the CompanyParent, the work papers and back-up materials materials, properties, books, and records used or useful in preparing or otherwise relevant for the review of the Company Net Cash Schedule and the Final Company Net Cash Schedule; and the Company shall provide Parent with access, as reasonably requested by Parent, to personnel, advisors and accountants involved in preparing or otherwise relevant for the review of the Company Net Cash Schedule and the Final Company Net Cash Schedule. The Company Net Cash Schedule and the Final Company Net Cash Schedule shall be calculated in accordance with this Agreement and be derived from the books and records of the Company. The Company shall reasonably consult with Parent and shall consider in good faith any reasonable comments of Parent on the Company Net Cash Schedule and the Final Company Net Cash Schedule. (b) Within five days after the Delivery Date (the last day of such period, the “Response Date”), the Company Parent shall have the right to dispute any part of the Company Net Cash Schedule Calculation by delivering a written notice to that effect to Parent (for which email will suffice) (a “Dispute Notice”) to that effect to the Company on or prior to 11:59 p.m. Central Time, on the fifth (5th) calendar day following Parent’s receipt of the Company Net Cash Schedule (the “Response Time”). Any , which Dispute Notice shall identify in reasonable detail the nature and amounts of any proposed revisions to the proposed Company Net Cash Calculation and will shall be accompanied by a reasonably detailed materials supporting explanation for the basis for such proposed revisions. (c) If, on or prior to the Response DateTime, (i) Parent notifies the Company notifies Parent in writing that it has no objections to the Company Net Cash Calculation set forth in the Net Cash Schedule or (ii) the Company if Parent fails to deliver a Dispute Notice as provided in Section 1.11(b)2.13(b) prior to the Response Time, then the Company Net Cash Calculation as set forth in the Company Net Cash Schedule shall be deemed to have been finally determined for purposes of this Agreement Agreement, shall be reflected in the Final Company Net Cash Schedule, and to shall represent the Net Cash at the Cash Determination Date Time for purposes of this Agreement. (d) If the Company Parent delivers a Dispute Notice on or prior to the Response DateTime, then Representatives of Parent and the Company and Parent shall promptly (and in no event later than one (1) Business Day thereafter) meet and attempt in good faith to resolve the disputed item(s) and negotiate an agreed-upon determination of the Net Cash, which agreed upon Net Cash amount shall be deemed to have been finally determined for purposes of this Agreement Agreement, shall be reflected in the Final Company Net Cash Schedule, and to shall represent the Net Cash at the Cash Determination Date Time for purposes of this Agreement. (e) If Representatives of Parent and the Company and Parent are unable to negotiate an agreed-upon determination of the Net Cash or any component thereof as of the Cash Determination Time pursuant to Section 1.11(d2.13(c) within two (2) Business Days after delivery of the Dispute Notice (or such other period as Parent and the Company and Parent may mutually agree upon), then any remaining disagreements as to the calculation of Net Cash shall be referred to for resolution to an impartial nationally or regionally recognized firm of independent auditor jointly selected by Parent and the Company. If the parties are unable to select an independent auditor within five days, then either Parent or Company may thereafter request that the Boston, Massachusetts Office of the American Arbitration Association (“AAA”) make such selection (either the independent auditor jointly selected by both parties or such independent auditor selected certified public accountants mutually agreed upon by the AAA, Company and Parent (the “Accounting Firm”). The parties Company and Parent shall promptly deliver to the Accounting Firm the work papers (subject to execution of customary work paper access letters if requested by the auditor of the Company) and back-up materials used in preparing the Company Net Cash Schedule and all other items reasonably requested by the Accounting Firm in connection with resolving the disputed itemsDispute Notice, and the Company and Parent shall use commercially reasonable efforts to cause the Accounting Firm to make its determination as promptly as practicable, but in any event, within fifteen days three (3) Business Days of accepting its selection. The Company and Parent will provide shall be afforded the opportunity to present to the Accounting Firm a statement of its position as any materials related to the amount for each disputed item within five Business Days of unresolved disputes and to discuss the selection of issues with the Accounting Firm; provided that no such presentation or discussion shall occur without the presence of a Representative of each of the Company and Parent. The determination of the Accounting Firm shall be limited to the disagreements submitted to the Accounting Firm. The determination of the amount of Net Cash made by the Accounting Firm shall be made in writing delivered to each of Parent the Company and the CompanyParent, shall be final and binding on the Company and Parent and the Company shall (absent manifest error) and shall be deemed to have been finally determined for purposes of this Agreement Agreement, shall be reflected in the Final Company Net Cash Schedule, and to shall represent the Net Cash at the Cash Determination Date Time for purposes of this Agreement, and the applicable Exchange Ratio. If at any time Parent and the Company resolve the disputed items, then, notwithstanding the preceding provisions of this Section 1.11(e), the Accounting Firm’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 costs fees and expenses of the Accounting Firm shall be borne equally by allocated between the Company and Parent and in the Company, and, notwithstanding same proportion that the foregoing, such portion disputed amount of the costs and expenses Net Cash that was unsuccessfully disputed by such party (as finally determined by the Accounting Firm) bears to the total disputed amount of the Accounting Firm borne by Parent and any fees, costs or expenses incurred by the Parent following the Determination Date in connection with the procedures set forth in this Section 1.11(e) shall be deducted from the final determination of the amount of Net Cash.