Common use of Final Adjustment Amount Clause in Contracts

Final Adjustment Amount. (a) Within 90 days after the Closing Date, Buyer shall prepare and deliver to Seller a statement (the “Final Statement”) setting forth Buyer’s good faith determination of the actual adjustment to the Cash Payment (the “Final Adjustment Amount”) resulting from the adjustments provided for in Section 4.3. With respect to any working capital adjustments, the Final Adjustment Amount in respect of the Cash Payment shall be calculated in a manner consistent with the Pro Forma Working Capital Statement as set forth on Schedule 5.5. With respect to any subscriber adjustment to be made in accordance with Section 4.3(a), Buyer shall be entitled to reduce the Actual Subscriber Number as of the Closing Date by the number of Promotional Subscribers who (x) were included in the Actual Subscriber Number in the Estimate Statement and (y) did not pay for the first two months of service after the Closing Date at the System’s standard monthly rates. In the first sixty (60) days after the Closing, Buyer agrees not to cancel or adversely modify any rate plan that covers the Promotional Subscribers or take any action, or omit to take any action, that is the principal cause of the Promotional Subscribers terminating their service in the first sixty (60) days after the Closing (excluding any actions taken or omitted with respect to customers of the Business as a whole that do not have a disproportionate negative impact on the Promotional Subscribers), and if Buyer does make such modification or takes or omits to take such action then such affected Promotional Subscribers shall be included in the Actual Subscriber Number for purposes of the Final Adjustment Amount. Each of Seller and Buyer shall provide the other Party with access during normal business hours and upon reasonable notice to any books, records, working papers or other information in its possession after the Closing Date reasonably necessary or useful in the preparation of the Final Statement and the calculation of the Final Adjustment Amount for the Cash Payment. The Final Statement shall become final and binding upon all Parties hereto on the 16th day following delivery thereof (without counting such day of delivery) to Seller unless Seller gives written notice of a good faith disagreement with the Final Statement (a “Notice of Disagreement”) to Buyer prior to such date. Any Notice of Disagreement shall specify in reasonable detail the nature of any disagreement so asserted and relate solely to the review of the Final Statement and the calculation of the Final Adjustment Amount. (b) If a Notice of Disagreement is delivered by Seller as required pursuant to Section 4.4(a), then the Final Statement shall become final and binding upon all parties hereto on the earlier of (x) the date Seller and Buyer resolve in writing any differences they may have with respect to all matters specified in the Notice of Disagreement and (y) the date all disputed matters are finally resolved in writing by ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ (the “Independent Accountants”). During the 30-day period following the delivery of a Notice of Disagreement, Seller and Buyer shall seek in good faith to resolve any differences which they may have with respect to any matter specified in the Notice of Disagreement and each shall provide the other with reasonable access to any books, records, working papers or other information reasonably necessary or useful in the preparation or calculation of (i) the Final Adjustment Amount, (ii) the Final Statement, or (iii) the Notice of Disagreement. At the end of such 30-day period if there has been no resolution of the matters specified in the Notice of Disagreement, Seller and Buyer shall make a written submission of any and all matters arising under this Section 4.4 that remain in dispute to the Independent Accountants for review and resolution. If ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ is unable or unwilling to act, the Independent Accountants shall be such other nationally recognized independent public accounting firm as shall be reasonably agreed upon by Seller and Buyer. The Independent Accountants shall render a decision resolving the matters submitted to the Independent Accountants within 30 days following submission thereto (or as soon thereafter as reasonably practicable). All fees and expenses of the Independent Accountants incurred pursuant to this Agreement shall be shared equally by Buyer and Seller. (c) If as a result of any adjustments made pursuant to this Section 4.4, Buyer is finally determined to owe any amount to Seller, Buyer shall within three business days pay such amount to Seller, and if Seller is finally determined to owe any amount to Buyer, Seller shall within three business days pay such amount to Buyer. Any such payments shall be made by federal wire transfer of immediately available funds to an account designated in writing by the Party receiving payment and shall bear interest from the Closing Date at the rate of 6% per annum. The Post-Closing Escrow is not intended to be a source of funds for Seller’s payments of any amounts owing under this Section 4.4; provided that to the extent Seller owes Buyer any amount under this Section 4.4 that has been finally determined to be payable to Buyer, and Seller has not paid Buyer such amount as provided for in this Section 4.4(c), then Buyer shall not be required to deliver a notice to the Escrow Agent instructing the Escrow Agent to disburse such amount from the Post-Closing Escrow.

Final Adjustment Amount. (a) Within 90 45 days after the each Closing Date, Buyer Seller shall prepare and deliver to Seller Buyer a statement (the each, a “Final Statement”) ), setting forth BuyerSeller’s good faith determination of the actual adjustment to the applicable System Cash Payment (the each, a “Final Adjustment Amount”) resulting from the adjustments provided for in Section 4.3). With respect to any working capital adjustments, the The Final Adjustment Amount in respect of the each System Cash Payment shall be calculated in a manner consistent with the Pro Forma Working Capital Statement as set forth on Schedule 5.5. With respect to any subscriber adjustment to be made in accordance with Section 4.3(a5.5(ii), Buyer shall be entitled to reduce the Actual Subscriber Number as of the Closing Date by the number of Promotional Subscribers who (x) were included in the Actual Subscriber Number in the Estimate Statement and (y) did not pay for the first two months of service after the Closing Date at the System’s standard monthly rates. In the first sixty (60) days after the Closing, Buyer agrees not to cancel or adversely modify any rate plan that covers the Promotional Subscribers or take any action, or omit to take any action, that is the principal cause of the Promotional Subscribers terminating their service in the first sixty (60) days after the Closing (excluding any actions taken or omitted with respect to customers of the Business as a whole that do not have a disproportionate negative impact on the Promotional Subscribers), and if Buyer does make such modification or takes or omits to take such action then such affected Promotional Subscribers shall be included in the Actual Subscriber Number for purposes of the Final Adjustment Amount. Each of Seller and Buyer shall provide the other Party with access during normal business hours and upon reasonable notice to any books, records, working papers or other information in its possession after the each Closing Date Time reasonably necessary or useful in the preparation of the Final Statement and the calculation of the Final Adjustment Amount for the applicable System Cash Payment. The Each Final Statement shall become final and binding upon all Parties hereto on the 16th day following delivery thereof (without counting such day of delivery) to Seller Buyer unless Seller Buyer gives written notice of a good faith disagreement with the such Final Statement (a “Notice of Disagreement”) to Buyer Seller prior to such date. Any Notice of Disagreement shall specify in reasonable detail the nature of any disagreement so asserted and relate solely to the review of the applicable Final Statement and the calculation of the applicable Final Adjustment Amount. (b) If a Notice of Disagreement is delivered by Seller Buyer as required pursuant to Section 4.4(a), then the applicable Final Statement shall become final and binding upon all parties hereto on the earlier of (x) the date Seller and Buyer resolve in writing any differences they may have with respect to all matters specified in the Notice of Disagreement and (y) the date all disputed matters are finally resolved in writing by ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ an independent public accounting firm (the “Independent Accountants”). During the 30-day period following the delivery of a Notice of Disagreement, Seller and Buyer shall seek in good faith to resolve any differences which they may have with respect to any matter specified in the Notice of Disagreement and each shall provide the other with reasonable access to any books, records, working papers or other information reasonably necessary or useful in the preparation or calculation of (i) the Final Adjustment Amount, (ii) the Final Statement, or (iii) the Notice of Disagreement. At the end of such 30-day period if there has been no resolution of the matters specified in the Notice of Disagreement, Seller and Buyer shall make a written submission of any and all matters arising under this Section 4.4 that remain in dispute to the Independent Accountants for review and resolution. If ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ The Independent Accountants shall be PriceWaterhouseCoopers or, if such firm is unable or unwilling to act, the Independent Accountants shall be such other nationally recognized independent public accounting firm as shall be reasonably agreed upon by Seller and Buyer. The Independent Accountants shall render a decision resolving the matters submitted to the Independent Accountants within 30 days following submission thereto (or as soon thereafter as reasonably practicable). All The fees and expenses of the Independent Accountants incurred pursuant to this Agreement shall be shared equally by Buyer and Seller. (c) If as a result of any adjustments made pursuant to this Section 4.4, Buyer is finally determined to owe any amount to Seller, Buyer shall within three business days pay such amount to Seller, and if Seller is finally determined to owe any amount to Buyer, Seller shall within three business days pay such amount to Buyer. Any such payments shall be made by federal wire transfer of immediately available funds to an account designated in writing by the Party receiving payment and shall bear interest from the applicable Closing Date at the rate of 6% per annum. The Post-Closing Escrow is not intended to be a source of funds for Seller’s payments of any amounts owing under this Section 4.4; provided that to the extent Seller owes Buyer any amount under this Section 4.4 that has been finally determined to be payable to Buyer, and Seller has not paid Buyer such amount as provided for in this Section 4.4(c), then Buyer shall not be required to deliver a notice to the Escrow Agent instructing the Escrow Agent to disburse such amount from the Post-Closing Escrow.

Final Adjustment Amount. (a) Within As promptly as practicable, but in any event within 90 days after the Closing Date, Buyer shall Parent will prepare and deliver to Seller Buyer a statement balance sheet of the Companies and their consolidated Subsidiaries at and as of 11:59 p.m. (Eastern time) on the date immediately prior to the Closing Date (the “Final StatementBalance Sheet”), which will set forth the Net Working Capital and Long-Term Liabilities. The Final Balance Sheet will be prepared in accordance with GAAP. Buyer and its representatives, including Buyer’s independent accountants, will be entitled to review all workpapers of Parent and the Companies and their representatives, including their independent accountants, prepared in connection with the delivery of the Final Balance Sheet. (b) Buyer will have 15 days following delivery of the Final Balance Sheet to Buyer to deliver to Parent written notice (the “Objection Notice”) setting forth Buyer’s of its objections to the Final Balance Sheet (such Objection Notice must contain a statement describing each item in dispute, the amount of such item as determined by Buyer (and the corresponding amount in dispute) and the basis of each objection, all in reasonable detail). If Buyer delivers the Objection Notice within such 15 day period, then Parent and Buyer will endeavor in good faith to resolve the objections for a period not to exceed 15 days from the date of delivery of the Objection Notice. If at the end of such 15 day period there are any objections that remain in dispute, then the remaining objections in dispute will be submitted for resolution to a “Big 4” independent accounting firm mutually acceptable to Parent and Buyer or, if none of such “Big 4” accounting firms qualifies as being independent, then to any other nationally-recognized independent accounting firm mutually acceptable to Parent and Buyer; provided, that if Parent and Buyer are unable to agree on the identity of such firm within 10 days after the expiration of the 15-day good faith negotiation period, then each of Parent and Buyer shall select a nationally-recognized independent accounting firm within 5 days after the expiration of such 10-day period and such two firms shall, within 10 days after the expiration of such 5-day period, then select a third nationally-recognized independent accounting firm to resolve the dispute (such selected firm, the “Referee”). Parent and Buyer will enter into reasonable and customary arrangements for the services to be rendered by the Referee under this Section 1.6(b). The Referee will determine any unresolved items on the Final Balance Sheet within 30 days after the objections that remain in dispute are submitted to it or such longer period as the Referee may reasonably require. If any remaining objections are submitted to the Referee for resolution, (i) each party will (A) furnish to the Referee such workpapers and other documents and information relating to such objections as the Referee may request and are available to that party (or its independent public accountants), (B) use commercially reasonable efforts to cooperate with the Referee in resolving any disputed matters and (C) be afforded the opportunity to present to the Referee any material relating to the determination of the actual adjustment matters in dispute and to discuss such determination with the Referee; (ii) the Referee will not assign a value to such objection that is greater than the greatest value for such objection claimed by either party or less than the smallest value for such objection claimed by either party; (iii) the determination by the Referee of the Final Balance Sheet, as set forth in a written notice delivered to both parties by the Referee (the “Referee Report”), will be made in accordance with this Agreement and will be binding and conclusive on the parties and will constitute an arbitral award that is final, binding and unappealable and upon which a judgment may be entered by a court having jurisdiction thereof; and (iv) the party whose aggregate claimed value of the matters submitted to the Cash Payment Referee for resolution is furthest from the final aggregate value for such matters determined by the Referee will pay the fees and expenses of the Referee. (c) The Final Balance Sheet will become final, binding and conclusive upon Buyer, Parent and the Sellers for all purposes of this Agreement, upon the earliest to occur of the following: (i) the mutual acceptance, in writing, by Buyer and Parent of the Final Balance Sheet, with such changes or adjustments thereto, if any, as may be proposed by Buyer and consented to by Parent; (ii) the expiration of 15 days after the delivery to Buyer of the Final Balance Sheet without delivery of an Objection Notice in accordance with Section 1.6(b); and (iii) the delivery to Buyer and Parent by the Referee of the Referee Report. (d) As used herein, the “Final Adjustment Amount”” means an amount equal to (i) resulting from the adjustments provided for in Net Working Capital as set forth on the Final Balance Sheet, minus (ii) the Net Working Capital as set forth on the Closing Date Balance Sheet and minus (iii) the Long-Term Liabilities (to the extent not satisfied at Closing pursuant to Section 4.31.3(a)). With respect to any working capital adjustments, To the extent that the Final Adjustment Amount in respect is a positive number, Buyer will pay the Sellers an aggregate amount equal to the Final Adjustment Amount within 10 Business Days after the final determination of the Cash Payment shall be calculated in a manner consistent with the Pro Forma Working Capital Statement as set forth on Schedule 5.5. With respect to any subscriber adjustment to be made Final Balance Sheet in accordance with Section 4.3(a1.6(c). To the extent that the Final Adjustment Amount is a negative number, Parent or the Sellers will pay Buyer shall be entitled an amount equal to reduce such deficiency (the Actual Subscriber Number as “Deficiency Amount”) within 10 Business Days after the final determination of the Closing Date by Final Balance Sheet in accordance with Section 1.6(c); provided, however, that if Parent or the number of Promotional Subscribers who Sellers do not pay the Deficiency Amount to Buyer within such 10 Business Day period, then Buyer may elect in its sole discretion (x) were included in the Actual Subscriber Number in the Estimate Statement and (y) did not pay for the first two months of service after the Closing Date at the System’s standard monthly rates. In the first sixty (60) days after the Closing, Buyer agrees not to cancel treat all or adversely modify any rate plan that covers the Promotional Subscribers or take any action, or omit to take any action, that is the principal cause portion of the Promotional Subscribers terminating their service in the first sixty (60) days after the Closing (excluding any actions taken or omitted with respect to customers of the Business Deficiency Amount as a whole that do not have a disproportionate negative impact on the Promotional Subscribers)an Indemnified Loss, and if Buyer does make makes such modification or takes or omits to take such action election, then such affected Promotional Subscribers shall amount will be included in the Actual Subscriber Number for purposes of the Final Adjustment Amount. Each of Seller and Buyer shall provide the other Party with access during normal business hours and upon reasonable notice to any booksdeemed an Indemnified Loss, records, working papers or other information in its possession after the Closing Date reasonably necessary or useful in the preparation of the Final Statement and the calculation of the Final Adjustment Amount for the Cash Payment. The Final Statement shall become final and binding upon all Parties hereto on the 16th day following delivery thereof (without counting such day of delivery) to Seller unless Seller gives written notice of a good faith disagreement with the Final Statement (a “Notice of Disagreement”) to Buyer prior to such date. Any Notice of Disagreement shall specify in reasonable detail the nature of any disagreement so asserted and relate solely to the review of the Final Statement and the calculation of the Final Adjustment Amount. (b) If a Notice of Disagreement is delivered by Seller as required pursuant to Section 4.4(a), then the Final Statement shall become final and binding upon all parties hereto on the earlier of (x) the date Seller and Buyer resolve in writing any differences they may have with respect to all matters specified in the Notice of Disagreement and (y) the date offset all disputed matters are finally resolved in writing by ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ (the “Independent Accountants”). During the 30-day period following the delivery of a Notice of Disagreement, Seller and Buyer shall seek in good faith to resolve or any differences which they may have with respect to any matter specified in the Notice of Disagreement and each shall provide the other with reasonable access to any books, records, working papers or other information reasonably necessary or useful in the preparation or calculation of (i) the Final Adjustment Amount, (ii) the Final Statement, or (iii) the Notice of Disagreement. At the end of such 30-day period if there has been no resolution portion of the matters specified in Deficiency Amount against any amounts payable by Buyer (or an Affiliate of Buyer) to Parent (or an Affiliate of Parent) under the Notice Transition Services Agreement. For all Tax purposes, the Parties agree to treat (and will cause each of Disagreement, Seller and Buyer shall make a written submission of their respective Affiliates to treat) any and all matters arising payment under this Section 4.4 that remain in dispute 1.6(d) as an adjustment to the Independent Accountants for review and resolution. If ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ is unable or unwilling to act, the Independent Accountants shall be such other nationally recognized independent public accounting firm as shall be reasonably agreed upon by Seller and Buyer. The Independent Accountants shall render a decision resolving the matters submitted Purchase Price payable to the Independent Accountants within 30 days following submission thereto (or as soon thereafter as reasonably practicable). All fees and expenses of Sellers for the Independent Accountants incurred pursuant to this Agreement shall be shared equally by Buyer and SellerShares. (c) If as a result of any adjustments made pursuant to this Section 4.4, Buyer is finally determined to owe any amount to Seller, Buyer shall within three business days pay such amount to Seller, and if Seller is finally determined to owe any amount to Buyer, Seller shall within three business days pay such amount to Buyer. Any such payments shall be made by federal wire transfer of immediately available funds to an account designated in writing by the Party receiving payment and shall bear interest from the Closing Date at the rate of 6% per annum. The Post-Closing Escrow is not intended to be a source of funds for Seller’s payments of any amounts owing under this Section 4.4; provided that to the extent Seller owes Buyer any amount under this Section 4.4 that has been finally determined to be payable to Buyer, and Seller has not paid Buyer such amount as provided for in this Section 4.4(c), then Buyer shall not be required to deliver a notice to the Escrow Agent instructing the Escrow Agent to disburse such amount from the Post-Closing Escrow.

Final Adjustment Amount. (a) Within 90 45 days after the Closing Date, Buyer shall prepare and deliver to Seller a statement (the “Final Statement”) ), setting forth Buyer’s good faith determination of the actual adjustment to the Cash Payment Purchase Price (the “Final Adjustment Amount”) resulting from the adjustments provided for in Section 4.3). With respect to any working capital adjustments, the The Final Adjustment Amount in respect of the Cash Payment Purchase Price shall be calculated in a manner consistent with the Pro Forma Working Capital Statement as set forth on Schedule 5.5. With respect to any subscriber adjustment to be made in accordance with Section 4.3(a), Buyer shall be entitled to reduce the Actual Subscriber Number as of the Closing Date by the number of Promotional Subscribers who (x) were included in the Actual Subscriber Number in the Estimate Statement and (y) did not pay for the first two months of service after the Closing Date at the System’s standard monthly rates. In the first sixty (60) days after the Closing, Buyer agrees not to cancel or adversely modify any rate plan that covers the Promotional Subscribers or take any action, or omit to take any action, that is the principal cause of the Promotional Subscribers terminating their service in the first sixty (60) days after the Closing (excluding any actions taken or omitted with respect to customers of the Business as a whole that do not have a disproportionate negative impact on the Promotional Subscribers), and if Buyer does make such modification or takes or omits to take such action then such affected Promotional Subscribers shall be included in the Actual Subscriber Number for purposes of the Final Adjustment Amount. Each of Seller and Buyer shall provide the other Party with access during normal business hours and upon reasonable notice to any books, records, working papers or other information in its possession after the Closing Date reasonably necessary or useful in the preparation of the Final Statement and the calculation of the Final Adjustment Amount for the Cash PaymentPurchase Price. The Final Statement shall become final and binding upon all Parties hereto on the 16th day following delivery thereof (without counting such day of delivery) to Seller unless Seller gives written notice of a good faith disagreement with the Final Statement (a “Notice of Disagreement”) to Buyer prior to such date. Any Notice of Disagreement shall specify in reasonable detail the nature of any disagreement so asserted and relate solely to the review of the Final Statement and the calculation of the Final Adjustment Amount. (b) If a Notice of Disagreement is delivered by Seller as required pursuant to Section 4.4(a), then the Final Statement shall become final and binding upon all parties hereto on the earlier of (x) the date Seller and Buyer resolve in writing any differences they may have with respect to all matters specified in the Notice of Disagreement and (y) the date all disputed matters are finally resolved in writing by ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ KPMG, LLP, an independent public accounting firm (the “Independent Accountants”). During the 30-day period following the delivery of a Notice of Disagreement, Seller and Buyer shall seek in good faith to resolve any differences which they may have with respect to any matter specified in the Notice of Disagreement and each shall provide the other with reasonable access to any books, records, working papers or other information reasonably necessary or useful in the preparation or calculation of (i) the Final Adjustment Amount, (ii) the Final Statement, or (iii) the Notice of Disagreement. At the end of such 30-day period if there has been no resolution of the matters specified in the Notice of Disagreement, Seller and Buyer shall make a written submission of any and all matters arising under this Section 4.4 that remain in dispute to the Independent Accountants for review and resolution. If ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ The Independent Accountants shall be KPMG, LLP or, if such firm is unable or unwilling to act, the Independent Accountants shall be such other nationally recognized independent public accounting firm as shall be reasonably agreed upon by Seller and Buyer. The Independent Accountants shall render a decision resolving the matters submitted to the Independent Accountants within 30 thirty (30) days following submission thereto (or as soon thereafter as reasonably practicable). All fees and expenses of the Independent Accountants incurred pursuant to this Agreement shall be shared equally by Buyer and Seller. (c) If as a result of any adjustments made pursuant to this Section 4.4, Buyer is finally determined to owe any amount to Seller, Buyer shall within three business days pay such amount to Seller, and if Seller is finally determined to owe any amount to Buyer, Seller shall within three business days pay such amount to Buyer. Any such payments shall be made by federal wire transfer of immediately available funds to an account designated in writing by the Party receiving payment and shall bear interest from the Closing Date at the rate of 6% per annum. The Post-Closing Escrow is not intended to be a source of funds for Seller’s payments of any amounts owing under this Section 4.4; provided that to the extent Seller owes Buyer any amount under this Section 4.4 that has been finally determined to be payable to Buyer, and Seller has not paid Buyer such amount as provided for in this Section 4.4(c), then Buyer shall not be required to deliver a notice to the Escrow Agent instructing the Escrow Agent to disburse such amount from the Post-Closing Escrow.

Final Adjustment Amount. (a) Within As promptly as practicable, but in any event within 90 days after the Closing Date, Buyer shall Parent will prepare and deliver to Seller the Representative a statement balance sheet of the Company at and as of 11:59 p.m. (Central Time) on the date hereof (the “Final StatementBalance Sheet”) setting forth Buyer’s good faith determination and a calculation of the actual adjustment to the Cash Payment (the “Final Adjustment Amount”) resulting Net Working Capital as derived from the adjustments provided for in Section 4.3Final Balance Sheet. With respect to any working capital adjustments, the The Final Adjustment Amount in respect of the Cash Payment shall Balance Sheet will be calculated in a manner consistent with the Pro Forma Working Capital Statement as set forth on Schedule 5.5. With respect to any subscriber adjustment to be made prepared in accordance with Section 4.3(a), Buyer shall be entitled to reduce this Agreement and in accordance with the Actual Subscriber Number as of Company’s historic past practice. Following the Closing Date by the number of Promotional Subscribers who (x) were included in the Actual Subscriber Number in the Estimate Statement and (y) did not pay for the first two months of service after the Closing Date at the System’s standard monthly rates. In the first sixty (60) days after the Closing, Buyer agrees not to cancel or adversely modify any rate plan that covers the Promotional Subscribers or take any action, or omit to take any action, that is the principal cause of the Promotional Subscribers terminating their service in the first sixty (60) days after the Closing (excluding any actions taken or omitted with respect to customers of the Business as a whole that do not have a disproportionate negative impact on the Promotional Subscribers), and if Buyer does make such modification or takes or omits to take such action then such affected Promotional Subscribers shall be included in the Actual Subscriber Number for purposes delivery of the Final Adjustment Amount. Each of Seller Balance Sheet to the Representative, Parent and Buyer shall provide the other Party with access during normal business hours Surviving Corporation will afford the Representative and upon reasonable notice its representatives an opportunity to any books, records, working papers or other information in its possession after examine the Closing Date Final Balance Sheet and such supporting schedules and analyses as are reasonably necessary or useful in the preparation of and appropriate to evaluate the Final Statement Balance Sheet. Parent and the calculation of the Final Adjustment Amount for the Cash Payment. The Final Statement Surviving Corporation shall become final use commercially reasonable efforts to cooperate fully and binding upon all Parties hereto on the 16th day following delivery thereof (without counting such day of delivery) to Seller unless Seller gives written notice of a good faith disagreement promptly with the Final Statement (a “Notice of Disagreement”) to Buyer prior to Representative and its representatives in such date. Any Notice of Disagreement shall specify in reasonable detail the nature of any disagreement so asserted and relate solely to the review of the Final Statement and the calculation of the Final Adjustment Amountexamination. (b) If within 30 days following delivery of the Final Balance Sheet to the Representative, the Representative has not delivered to Parent written notice (the “Objection Notice”) of its objections to the Final Balance Sheet (such Objection Notice must contain a Notice statement describing in reasonable detail the basis of Disagreement is delivered by Seller as required pursuant to Section 4.4(asuch objections), then the Final Statement Balance Sheet shall become be deemed final and binding upon all parties hereto on conclusive. If the earlier of (x) Representative delivers the date Seller and Buyer resolve in writing any differences they may have with respect to all matters specified in the Objection Notice of Disagreement and (y) the date all disputed matters are finally resolved in writing by ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ (the “Independent Accountants”). During the within such 30-day period following period, then Parent and the delivery of a Notice of Disagreement, Seller and Buyer Representative shall seek endeavor in good faith to resolve the objections, for a period not to exceed 15 days from the date of delivery of the Objection Notice. If at the end of such 15-day period there are any differences which they objections that remain in dispute, then the remaining objections in dispute shall be submitted for resolution to a Person mutually acceptable to the Representative and Parent (the “Referee”). The Referee shall determine any unresolved items within 30 days after the objections that remain in dispute are submitted to it, and Parent and the Representative shall use their commercially reasonable efforts to cooperate with any investigations of the Referee. If any remaining objections are submitted to the Referee for resolution, (i) each party shall furnish to the Referee such work papers and other documents and information relating to such objections as the Referee may have request and are available to that party or its Subsidiaries (or its independent public accountants) and will be afforded the opportunity to present to the Referee any material relating to the determination of the matters in dispute and to discuss such determination with respect the Referee; (ii) to the extent that a value has been assigned to any matter specified objection that remains in dispute, the Notice Referee shall not assign a value to such objection that is greater than the greatest value for such objection claimed by either party or less than the smallest value for such objection claimed by either party; (iii) the determination by the Referee as set forth in a written notice delivered to both parties by the Referee, shall be made in accordance with this Agreement and shall be binding and conclusive on the parties and shall constitute an arbitral award that is final, binding and unappealable and upon which a judgment may be entered by a court having jurisdiction thereof; and (iv) the fees and expenses of Disagreement and each the Referee shall provide be paid by the other with reasonable access party whose aggregate claimed value of matters submitted to any booksthe Referee for resolution is furthest from the final aggregate value for such matters determined by the Referee. (c) As used in this Agreement, records, working papers or other information reasonably necessary or useful in the preparation or calculation of “Final Adjustment Amount” means an amount equal to (i) the positive number, if any, resulting from the following calculation: (a) the Historical Net Working Capital minus (b) the Net Working Capital as derived from the Final Balance Sheet or (ii) zero, if the calculation set forth in clause (i) of this sentence does not result in a positive number. To the extent that the Final Adjustment Amount is less than the Closing Adjustment Amount, Parent will pay to the Representative for the benefit of the Shareholders, within ten (10) Business Days of the final determination of the Final Adjustment Amount, an amount equal to (a) the Closing Adjustment Amount minus (b) the Final Adjustment Amount. To the extent that the Final Adjustment Amount is greater than the Closing Adjustment Amount, an amount equal to (iia) the Final Statement, or Adjustment Amount minus (iiib) the Notice of Disagreement. At Closing Adjustment Amount (such difference, the end of such 30-day period if there has been no resolution “Adjustment Amount Difference”), will be paid to Parent by the Escrow Agent from the Escrow Account in accordance with the terms of the matters specified in Escrow Agreement. To the Notice extent permitted under Applicable Laws, the parties will treat (and will cause each of Disagreement, Seller and Buyer shall make a written submission of their respective Affiliates to treat) any and all matters arising payment under this Section 4.4 that remain in dispute 2.15(c) as an adjustment to the Independent Accountants Merger Consideration for review and resolution. If ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ is unable or unwilling to act, the Independent Accountants shall be such other nationally recognized independent public accounting firm as shall be reasonably agreed upon by Seller and Buyer. The Independent Accountants shall render a decision resolving the matters submitted to the Independent Accountants within 30 days following submission thereto (or as soon thereafter as reasonably practicable). All fees and expenses of the Independent Accountants incurred pursuant to this Agreement shall be shared equally by Buyer and SellerTax purposes. (c) If as a result of any adjustments made pursuant to this Section 4.4, Buyer is finally determined to owe any amount to Seller, Buyer shall within three business days pay such amount to Seller, and if Seller is finally determined to owe any amount to Buyer, Seller shall within three business days pay such amount to Buyer. Any such payments shall be made by federal wire transfer of immediately available funds to an account designated in writing by the Party receiving payment and shall bear interest from the Closing Date at the rate of 6% per annum. The Post-Closing Escrow is not intended to be a source of funds for Seller’s payments of any amounts owing under this Section 4.4; provided that to the extent Seller owes Buyer any amount under this Section 4.4 that has been finally determined to be payable to Buyer, and Seller has not paid Buyer such amount as provided for in this Section 4.4(c), then Buyer shall not be required to deliver a notice to the Escrow Agent instructing the Escrow Agent to disburse such amount from the Post-Closing Escrow.

Final Adjustment Amount. (a) Within 90 days after the Closing Date, Buyer shall prepare and deliver to Seller a statement (the “"Final Statement”) "), setting forth in reasonable detail Buyer’s 's good faith determination of the actual adjustment to the Cash Payment Purchase Price (the “"Final Adjustment Amount”) resulting from "). During the adjustments provided for in Section 4.3. With respect to any working capital adjustments, 45-day period following delivery of the Final Adjustment Amount in respect of the Cash Payment shall be calculated in a manner consistent with the Pro Forma Working Capital Statement as set forth on Schedule 5.5. With respect to any subscriber adjustment to be made in accordance with Section 4.3(a)Seller, Buyer shall be entitled to reduce the Actual Subscriber Number as provide Seller with copies of the Closing Date by the number of Promotional Subscribers who (x) were included in the Actual Subscriber Number in the Estimate Statement and (y) did not pay for the first two months of service after the Closing Date at the System’s standard monthly rates. In the first sixty (60) days after the Closing, Buyer agrees not to cancel or adversely modify any rate plan that covers the Promotional Subscribers or take any action, or omit to take any action, that is the principal cause of the Promotional Subscribers terminating their service in the first sixty (60) days after the Closing (excluding any actions taken or omitted with respect to customers of the Business as a whole that do not have a disproportionate negative impact on the Promotional Subscribers), and if Buyer does make such modification or takes or omits to take such action then such affected Promotional Subscribers shall be included in the Actual Subscriber Number for purposes of the Final Adjustment Amount. Each of Seller and Buyer shall provide the other Party with access during normal business hours and upon reasonable notice to any books, records, working papers or other information in its possession after the Closing Date reasonably necessary or useful in the preparation review of the Final Statement and the calculation of the Final Adjustment Amount for to enable Seller to verify the Cash Paymentaccuracy of the Final Statement. The Final Statement shall become final and binding upon all Parties parties hereto on the 16th 45th day following delivery thereof (without counting such day of delivery) to Seller unless Seller gives written notice of a good faith disagreement with the Final Statement (a “"Notice of Disagreement”") to Buyer prior to such date. Any Notice of Disagreement shall specify in reasonable detail the nature of any disagreement so asserted and relate solely to the review of the Final Statement and the calculation of the Final Adjustment Amount. (b) If a Notice of Disagreement is delivered given by Seller as required pursuant to Section 4.4(a)in a timely manner, then the Final Statement (as adjusted, if applicable) shall become final and binding upon all parties hereto on the earlier of (xi) the date Seller and Buyer resolve in writing any differences they may have with respect to all matters specified in the Notice of Disagreement and (yii) the date all disputed matters are finally resolved in writing by ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ (the “Independent Accountants”)Arbitrator. During the 3045-day period following the delivery of a Notice of Disagreement, Seller and Buyer shall seek in good faith to resolve any differences which they may have with respect to any matter specified in the Notice of Disagreement and each shall provide the other upon request with reasonable access to copies of any books, records, working papers or other information reasonably necessary or useful in the preparation or calculation of (ix) the Final Adjustment Amount, (iiy) the Final Statement, or (iiiz) the Notice of Disagreement. At the end of such 3045-day period if there has been no resolution of the matters specified in the Notice of Disagreement, Seller and Buyer shall make a written submission of submit to the Arbitrator for review and resolution any and all matters arising under this Section 4.4 that which remain in dispute to dispute. The "Arbitrator" shall be the Independent Accountants for review and resolution. If ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ New York City office of KPMG Peat Marwick LLP or, if such firm is unable or unwilling to act, the Independent Accountants shall be such other nationally recognized independent public accounting firm as shall be reasonably agreed upon by Seller and Buyer. The Independent Accountants Arbitrator shall render a decision resolving the matters submitted to the Independent Accountants Arbitrator within 30 60 days following submission thereto (or as soon thereafter as reasonably practicable). All The fees and expenses of the Independent Accountants incurred Arbitrator pursuant to this Agreement shall be shared equally allocated by Buyer and Sellerthe Arbitrator in a manner that takes into account those factors that are deemed relevant by the Arbitrator. (c) If as a result of any adjustments made pursuant to this Section 4.43.4, Buyer is finally determined to owe any amount to Seller, Buyer shall within three (3) business days pay such amount to Seller, and if Seller is finally determined to owe any amount to Buyer, Seller shall within three (3) business days pay such amount to Buyer. Any such payments shall be made by federal wire transfer of immediately available funds to an account designated in writing by the Party party receiving payment and shall bear interest from the Closing Date at the rate of 6% per annum. The Post-Closing Escrow is not intended to be a source of funds for Seller’s payments of any amounts owing under this Section 4.4; provided that to the extent Seller owes Buyer any amount under this Section 4.4 that has been finally determined to be payable to Buyer, and Seller has not paid Buyer such amount as provided for in this Section 4.4(c), then Buyer shall not be required to deliver a notice to the Escrow Agent instructing the Escrow Agent to disburse such amount from the Post-Closing Escrow.

Final Adjustment Amount. (a) Within 90 As promptly as practicable after the Closing Date (but in no event later than thirty (30) days after the Closing Date), Buyer shall cause the Company to prepare and deliver to Seller the Representative a statement balance sheet of the Company as of 11:59 p.m. on the date immediately prior to the Closing Date (the “"Final Statement”) setting Balance Sheet"), which shall set forth Buyer’s good faith determination the components of the actual adjustment to the Cash Payment Working Capital Amount (the “"Closing Working Capital"). The Final Adjustment Amount”) resulting from the adjustments provided for in Section 4.3. With respect to any working capital adjustments, the Final Adjustment Amount in respect of the Cash Payment Balance Sheet shall be calculated in a manner consistent with the Pro Forma Working Capital Statement as set forth on Schedule 5.5. With respect to any subscriber adjustment to be made prepared in accordance with Section 4.3(a), Buyer shall be entitled to reduce this Agreement and Company Accounting Procedures. Following the Actual Subscriber Number as of the Closing Date by the number of Promotional Subscribers who (x) were included in the Actual Subscriber Number in the Estimate Statement and (y) did not pay for the first two months of service after the Closing Date at the System’s standard monthly rates. In the first sixty (60) days after the Closing, Buyer agrees not to cancel or adversely modify any rate plan that covers the Promotional Subscribers or take any action, or omit to take any action, that is the principal cause of the Promotional Subscribers terminating their service in the first sixty (60) days after the Closing (excluding any actions taken or omitted with respect to customers of the Business as a whole that do not have a disproportionate negative impact on the Promotional Subscribers), and if Buyer does make such modification or takes or omits to take such action then such affected Promotional Subscribers shall be included in the Actual Subscriber Number for purposes delivery of the Final Adjustment AmountBalance Sheet to the Representative, Buyer and the Surviving Company shall afford the Representative and its representatives the opportunity to examine the Final Balance Sheet, and such supporting schedules, analyses, workpapers, and other underlying records or documentation as are reasonably necessary and appropriate. Each of Seller Buyer and the Surviving Company shall cooperate fully and promptly with the Representative and its representatives in such examination, including providing answers to questions asked by the Representative and its representatives, and Buyer shall provide the other Party with access during normal business hours and upon reasonable notice to any books, records, working papers or other information in its possession after the Closing Date reasonably necessary or useful in the preparation of the Final Statement and the calculation of the Final Adjustment Amount for the Cash Payment. The Final Statement Surviving Company shall become final and binding upon all Parties hereto on the 16th day following delivery thereof (without counting such day of delivery) to Seller unless Seller gives written notice of a good faith disagreement with the Final Statement (a “Notice of Disagreement”) to Buyer prior to such date. Any Notice of Disagreement shall specify in reasonable detail the nature of any disagreement so asserted and relate solely promptly make available to the review of Representative and its representatives any records under their reasonable control that are requested by the Final Statement Representative and the calculation of the Final Adjustment Amountits representatives. (b) If within ten (10) days following delivery of the Final Balance Sheet to the Representative, the Representative has not delivered to Buyer written notice (the "Objection Notice") of its objections to the Final Balance Sheet (such Objection Notice must contain a Notice statement describing the basis of Disagreement is delivered by Seller as required pursuant to Section 4.4(asuch objections), then the Closing Working Capital as set forth in or derived from such Final Statement Balance Sheet shall become be deemed final and binding upon all parties hereto on conclusive and shall be "Final Working Capital". If the earlier of Representative delivers the Objection Notice within such ten (x) 10)-day period, then Buyer and the date Seller and Buyer resolve in writing any differences they may have with respect to all matters specified in the Notice of Disagreement and (y) the date all disputed matters are finally resolved in writing by ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ (the “Independent Accountants”). During the 30-day period following the delivery of a Notice of Disagreement, Seller and Buyer Representative shall seek endeavor in good faith to resolve the objections, for a period not to exceed fifteen (15) days from the date of delivery of the Objection Notice. If at the end of the fifteen (15) day period there are any differences which they may have with respect objections that remain in dispute, then the remaining objections in dispute shall be submitted for resolution to a "big four" accounting firm to be selected jointly by the Representative and Buyer within the following five (5) days or, if the Representative and Buyer are unable to mutually agree within such five (5)-day period, such accounting firm shall be a mutually agreed upon reputable accounting firm that has not been hired by either the Company or Buyer within the last five years (such jointly selected accounting firm, the "Referee"). The Referee shall determine any matter specified unresolved items of Final Working Capital within thirty (30) days after the objections that remain in dispute are submitted to it. If any remaining objections are submitted to the Notice of Disagreement and each shall provide the other with reasonable access to any booksReferee for resolution, records, working papers or other information reasonably necessary or useful in the preparation or calculation of (i) each party shall furnish to the Final Adjustment Amount, Referee such workpapers and other documents and information relating to such objections as the Referee may request and are available to that party or its subsidiaries (or its independent public accountants) and will be afforded the opportunity to present to the Referee any material relating to the determination of the matters in dispute and to discuss such determination with the Referee; (ii) to the Final Statementextent that a value has been assigned to any objection that remains in dispute, the Referee shall not assign a value to such objection that is greater than the greatest value for such objection claimed by either party or less than the smallest value for such objection claimed by either party; (iii) the Notice determination by the Referee of Disagreement. At Final Working Capital, as set forth in a written notice delivered to both parties and the end of such 30-day period if there has been no resolution Escrow Agent by the Referee, shall be made in accordance with this Agreement and shall be binding and conclusive on the parties and shall constitute an arbitral award that is final, binding and unappealable and upon which a judgment may be entered by a court having jurisdiction thereof; and (iv) fifty percent (50%) of the matters specified in the Notice of Disagreement, Seller and Buyer shall make a written submission of any and all matters arising under this Section 4.4 that remain in dispute to the Independent Accountants for review and resolution. If ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ is unable or unwilling to act, the Independent Accountants shall be such other nationally recognized independent public accounting firm as shall be reasonably agreed upon by Seller and Buyer. The Independent Accountants shall render a decision resolving the matters submitted to the Independent Accountants within 30 days following submission thereto (or as soon thereafter as reasonably practicable). All fees and expenses of the Independent Accountants incurred pursuant to this Agreement Referee shall be shared equally paid by Buyer and Sellerthe remaining fifty percent (50%) of the fees and expenses of the Referee shall be paid by the Securityholders. (c) If as a result of any adjustments made pursuant to this Section 4.4, Buyer is finally determined to owe any amount to Seller, Buyer shall within three business days pay such amount to Seller, and if Seller is finally determined to owe any amount to Buyer, Seller shall within three business days pay such amount to Buyer. Any such payments shall be made by federal wire transfer of immediately available funds to an account designated in writing by the Party receiving payment and shall bear interest from the Closing Date at the rate of 6% per annum. The Post-Closing Escrow is not intended to be a source of funds for Seller’s payments of any amounts owing under this Section 4.4; provided that to To the extent Seller owes Buyer any that Final Working Capital exceeds Closing Working Capital by an amount under this Section 4.4 that has been finally determined to be payable to Buyer, and Seller has not paid Buyer such amount as provided for in this Section 4.4(c)greater than the Holdback Amount, then Buyer shall not release the Holdback Amount (if any), and the Closing Merger Consideration shall be required to deliver a notice further increased by the amount of such excess, which amount shall be paid by Buyer to the Escrow Agent instructing Representative, on behalf of the Securityholders, within five (5) days of the determination of Final Working Capital. To the extent that Final Working Capital is less than Closing Working Capital (the "Final Adjustment Deficiency"), (A) if the Final Adjustment Deficiency is less than the Holdback Amount, then Buyer may retain the portion of the Holdback Amount equal to the Final Adjustment Deficiency, and the remainder of the Holdback Amount shall be paid to the Representative, on behalf of the Securityholders, by Buyer within five (5) days of the determination of Final Working Capital, and (B) if the Final Adjustment Deficiency is greater than the Holdback Amount, then Buyer may retain the Holdback Amount, and the amount by which Final Adjustment Deficiency exceeds the Holdback Amount shall be paid to Buyer by the Securityholders from the Escrow Agent Account within five (5) days of the determination of Final Working Capital. For all Tax purposes, any payment under this Section 1.12 shall be treated by Buyer, the Surviving Company, the Securityholders and their respective Affiliates as an adjustment to disburse such amount from the Post-Closing EscrowMerger Consideration.

Final Adjustment Amount. (a) Within 90 forty-five (45) days after the Final Closing Date, Buyer Seller shall prepare and deliver to Seller Buyer a statement (the “"Final Statement”) "), setting forth Buyer’s Seller's good faith determination of the actual adjustment to the Cash Payment Closing Date Amount (the “"Final Adjustment Amount”) resulting from the adjustments provided for in Section 4.3. With respect to any working capital adjustments, the Final Adjustment Amount in respect of the Cash Payment shall be calculated in a manner consistent with the Pro Forma Working Capital Statement as set forth on Schedule 5.5. With respect to any subscriber adjustment to be made in accordance with Section 4.3(a"), Buyer shall be entitled to reduce the Actual Subscriber Number as of the Closing Date by the number of Promotional Subscribers who (x) were included in the Actual Subscriber Number in the Estimate Statement and (y) did not pay for the first two months of service after the Closing Date at the System’s standard monthly rates. In the first sixty (60) days after the Closing, Buyer agrees not to cancel or adversely modify any rate plan that covers the Promotional Subscribers or take any action, or omit to take any action, that is the principal cause of the Promotional Subscribers terminating their service in the first sixty (60) days after the Closing (excluding any actions taken or omitted with respect to customers of the Business as a whole that do not have a disproportionate negative impact on the Promotional Subscribers), and if Buyer does make such modification or takes or omits to take such action then such affected Promotional Subscribers shall be included in the Actual Subscriber Number for purposes of the Final Adjustment Amount. Each of Seller and Buyer shall provide the other Party with access during normal business hours and upon reasonable notice to any books, records, working papers or other information in its possession after the each Closing Date reasonably necessary or useful in the preparation of the Final Statement and the calculation of the Final Adjustment Amount for the Cash PaymentAmount. The Final Statement shall become final and binding upon all Parties hereto on the 16th sixteenth (16th) day following delivery thereof (without counting such day of delivery) to Seller Buyer unless Seller Buyer gives written notice of a good faith disagreement with the Final Statement (a “"Notice of Disagreement”") to Buyer Seller prior to such date. Any Notice of Disagreement shall specify in reasonable detail the nature of any disagreement so asserted and relate solely to the review of the Final Statement and the calculation of the Final Adjustment Amount. (b) If a Notice of Disagreement is delivered given by Seller as required pursuant to Section 4.4(a)Buyer in a timely manner, then the Final Statement shall become final and binding upon all parties hereto on the earlier of (x) the date Seller and Buyer resolve in writing any differences they may have with respect to all matters specified in the Notice of Disagreement and (y) the date all disputed matters are finally resolved in writing by ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ the Independent Accountants (the “Independent Accountants”as hereinafter defined). During the 30-day fifteen (15)-day period following the delivery of a Notice of Disagreement, Seller and Buyer shall seek in good faith to resolve any differences which they may have with respect to any matter specified in the Notice of Disagreement and each shall provide the other with reasonable access to any books, records, working papers or other information reasonably necessary or useful in the preparation or calculation of (i) the Final Adjustment Amount, (ii) the Final Statement, or (iii) the Notice of Disagreement. At the end of such 30-day fifteen (15)-day period if there has been no resolution of the matters specified in the Notice of Disagreement, Seller and Buyer shall make a written submission submit to an independent public accounting firm (the "Independent Accountants") for review and resolution of any and all matters arising under this Section 4.4 that which remain in dispute to the dispute. The Independent Accountants for review shall be Ernst and resolution. If ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Young or, if such firm is unable or unwilling to act, the Independent Accountants shall be such other nationally recognized independent public accounting firm as shall be reasonably agreed upon by Seller and Buyer. The Independent Accountants shall render a decision resolving the matters submitted to the Independent Accountants within 30 thirty (30) days following submission thereto (or as soon thereafter as reasonably practicable). All The fees and expenses of the Independent Accountants incurred pursuant to this Agreement shall be shared equally by Buyer and Seller. (c) If as a result of any adjustments made pursuant to this Section SECTION 4.4, Buyer is finally determined to owe any amount to Seller, Buyer shall within three (3) business days pay such amount to Seller, and if Seller is finally determined to owe any amount to Buyer, Seller shall within three (3) business days pay such amount to Buyer. Any such payments shall be made by federal wire transfer of immediately available funds to an account designated in writing by the Party receiving payment and shall bear interest from the Closing Date at the rate of 6% eight percent (8%) per annum. The Post-Closing Escrow is not intended to be a source of funds for Seller’s payments of any amounts owing under this Section 4.4; provided that to the extent Seller owes Buyer any amount under this Section 4.4 that has been finally determined to be payable to Buyer, and Seller has not paid Buyer such amount as provided for in this Section 4.4(c), then Buyer shall not be required to deliver a notice to the Escrow Agent instructing the Escrow Agent to disburse such amount from the Post-Closing Escrow.

Final Adjustment Amount. (ai) Within 90 days On or as promptly as practicable after the Closing Date, Buyer Seller shall prepare take, using either Transferred Employees or a third-party entity reasonably acceptable to Purchaser, a physical count of the Inventory (and deliver a simultaneous physical identification of the Finished Goods). Representatives of Purchaser shall be given an opportunity in all reasonable respects and in good faith to (i) observe, along with their accountants, such taking of the Inventory (and such physical identification of the Finished Goods) and (ii) to conduct test counts of the Inventory (and such physical identification of the Finished Goods) and in connection with such test counts Seller agrees not to release an area from the process until such opportunity to take test counts has been provided to Purchaser. Following preparation of an inventory report in accordance with GAAP and consistent with past practice, Purchaser shall be given an opportunity in all reasonable respects to review the inventory report and work papers. (ii) Within forty-five (45) days following the Closing Date, Seller shall cause a statement closing balance sheet as of the Closing Date (the “Final Statement”"Closing Balance Sheet") setting forth Buyer’s good faith determination of the actual adjustment to the Cash Payment (the “Final Adjustment Amount”) resulting from the adjustments provided for be prepared in Section 4.3. With respect to any working capital adjustments, the Final Adjustment Amount in respect of the Cash Payment shall be calculated accordance with GAAP applied in a manner consistent with the Pro Forma Working Capital Statement preparation of the Company Financial Statements and Seller's accounting principles and reflective of Inventory as counted pursuant to Section 2.3(d)(i) hereof, and shall deliver the Closing Balance Sheet to Purchaser. The Closing Balance Sheet shall be adjusted in accordance with Section 2.3(b) and as set forth on Schedule 5.5. With respect to any subscriber adjustment to be made in accordance with Section 4.3(a)A, Buyer and the Closing Balance Sheet, as so adjusted, shall be entitled to reduce the Actual Subscriber Number as of the Closing Date by the number of Promotional Subscribers who (x) were included in the Actual Subscriber Number in the Estimate Statement and (y) did not pay for the first two months of service after the Closing Date at the System’s standard monthly rates. In the first sixty (60) days after the Closing, Buyer agrees not to cancel or adversely modify any rate plan that covers the Promotional Subscribers or take any action, or omit to take any action, that is the principal cause of the Promotional Subscribers terminating their service in the first sixty (60) days after the Closing (excluding any actions taken or omitted with respect to customers of the Business as a whole that do not have a disproportionate negative impact on the Promotional Subscribers), and if Buyer does make such modification or takes or omits to take such action then such affected Promotional Subscribers shall be included in the Actual Subscriber Number used for purposes of calculating the Final Cash Balance, the Final Seller Receivable and the Final Adjustment Amount. Each The Closing Balance Sheet shall be accompanied by a revised Schedule A setting forth the adjustments required to be made under Section 2.3(b) and a revised Schedule B setting forth the final calculation of Seller and Buyer shall provide (i) the other Party with access during normal business hours and upon reasonable notice cash balance required to any books, records, working papers or other information be in its possession after the Company as of the Closing Date reasonably necessary or useful pursuant to Section 2.3(b)(i) (the "Final Cash Balance"), (ii) the amount of the Seller Receivable pursuant to Section 2.3(b)(ii) (the "Final Seller Receivable"), and (iii) "Net Equity" minus "Net Book Value of Fixed Assets" calculated in accordance with Section 2.3(c) hereof (the preparation "Final Adjustment Amount" and together with the Final Cash Balance and the Final Seller Receivable, the "Final Calculations"). Purchaser shall have ten (10) Business Days after delivery of the Final Statement and the calculation Calculations to give written notice to Seller of its disagreement with any of the Final Adjustment Amount for the Cash Payment. The Final Statement shall become final and binding upon all Parties hereto on the 16th day following delivery thereof Calculations (without counting with such day of delivery) notice so timely delivered referred to Seller unless Seller gives written notice of herein as a good faith disagreement with the Final Statement (a “"Notice of Disagreement”) to Buyer prior to such date"). Any Notice of Disagreement shall specify in reasonable detail the nature of any disagreement so asserted and relate solely to the review of the Final Statement and the calculation of the Final Adjustment Amount. (b) If a Notice of Disagreement is delivered by Seller as required pursuant to Section 4.4(a), then the Final Statement shall become final and binding upon all parties hereto on the earlier of (x) the date Seller and Buyer resolve in writing any differences they may have with respect to all matters specified in the Notice of Disagreement and (y) the date all disputed matters are finally resolved in writing by ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ (the “Independent Accountants”). During the 30-day period following the delivery of a Notice of Disagreement, Seller and Buyer shall seek in good faith to resolve any differences which they may have with respect to any matter specified in the Notice of Disagreement and each shall provide the other with reasonable access to any books, records, working papers or other information reasonably necessary or useful in the preparation or calculation of (i) the Final Adjustment Amount, (ii) the Final Statement, or (iii) the Notice of Disagreement. At the end of such 30-day period if there has been no resolution of the matters specified in the Notice of Disagreement, Seller and Buyer shall make a written submission of any and all matters arising under this Section 4.4 that remain in dispute to the Independent Accountants for review and resolution. If ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ is unable or unwilling to act, the Independent Accountants shall be such other nationally recognized independent public accounting firm as shall be reasonably agreed upon by Seller and Buyer. The Independent Accountants shall render a decision resolving the matters submitted to the Independent Accountants within 30 days following submission thereto (or as soon thereafter as reasonably practicable). All fees and expenses of the Independent Accountants incurred pursuant to this Agreement shall be shared equally by Buyer and Seller. (c) If as a result of any adjustments made pursuant to this Section 4.4, Buyer is finally determined to owe any amount to Seller, Buyer shall within three business days pay such amount to Seller, and if Seller is finally determined to owe any amount to Buyer, Seller shall within three business days pay such amount to Buyer. Any such payments shall be made by federal wire transfer of immediately available funds to an account designated in writing by the Party receiving payment and shall bear interest from the Closing Date at the rate of 6% per annum. The Post-Closing Escrow is not intended to be a source of funds for Seller’s payments of any amounts owing under this Section 4.4; provided that to the extent Seller owes Buyer any amount under this Section 4.4 that has been finally determined to be payable to Buyer, and Seller has not paid Buyer such amount as provided for in this Section 4.4(c), then Buyer shall not be required to deliver a notice to the Escrow Agent instructing the Escrow Agent to disburse such amount from the Post-Closing Escrow.reasonable

Final Adjustment Amount. Within ninety (a90) Within 90 days after the Closing Date, Buyer shall prepare and deliver to Seller a statement certificate (the “Final Statement”"Adjustment Certificate") setting forth Buyer’s good faith determination of the any changes (based on actual adjustment to the Cash Payment (the “Final Adjustment Amount”) resulting from the adjustments provided for in Section 4.3. With respect to any working capital adjustments, the Final Adjustment Amount in respect of the Cash Payment shall be calculated in a manner consistent with the Pro Forma Working Capital Statement as set forth on Schedule 5.5. With respect to any subscriber adjustment to be made in accordance with Section 4.3(a), Buyer shall be entitled to reduce the Actual Subscriber Number amounts as of the Closing Date by including the number of Promotional Subscribers who (xBasic Customers) were included in the Actual Subscriber Number in adjustments made at Closing pursuant to Section 1.5, together with a copy of any working papers or other documents relating to the Estimate Statement Adjustment Certificate or other documents supporting the Adjustment Certificate as Seller may reasonably request. Buyer will provide Seller with copies or reasonable access to all books and (y) did not pay records and other information or documents reasonably requested by Seller for the first two months limited use of service after reviewing and analyzing the Closing Date at Adjustment Certificate. To the System’s standard monthly rates. In the first sixty extent any item cannot be reasonably determined within ninety (60) days after the Closing, Buyer agrees not to cancel or adversely modify any rate plan that covers the Promotional Subscribers or take any action, or omit to take any action, that is the principal cause of the Promotional Subscribers terminating their service in the first sixty (6090) days after the Closing Date, the appropriate party shall furnish such item to the other as soon as practicable after it is available thereafter, but in no event more than 60 days later, and such item thereafter shall be adjusted under the procedures set forth in this Section 1.6. If Seller shall conclude that the Adjustment Certificate does not accurately reflect the changes to be made to the adjustments made at Closing pursuant to the first sentence of this Section 1.6, Seller shall, within thirty (excluding any actions taken or omitted with respect to customers 30) days after its receipt of the Business as a whole that do not have a disproportionate negative impact on the Promotional Subscribers)Adjustment Certificate, and if provide to Buyer does make such modification or takes or omits to take such action then such affected Promotional Subscribers shall be included in the Actual Subscriber Number for purposes of the Final Adjustment Amount. Each of Seller and Buyer shall provide the other Party with access during normal business hours and upon reasonable notice to any books, records, working papers or other information in its possession after the Closing Date reasonably necessary or useful in the preparation of the Final Statement and the calculation of the Final Adjustment Amount for the Cash Payment. The Final Statement shall become final and binding upon all Parties hereto on the 16th day following delivery thereof (without counting such day of delivery) to Seller unless Seller gives written notice of a good faith disagreement with the Final Statement (a “Notice of Disagreement”) to Buyer prior to such date. Any Notice of Disagreement thereof, which notice shall specify set forth in reasonable detail the nature of any disagreement so asserted and relate solely basis for Seller's objections to the Adjustment Certificate. If Buyer and Seller cannot resolve any dispute to their mutual satisfaction within fifteen (15) days after Buyer's receipt of Seller's written notice of objection (the "Resolution Period"), Buyer and Seller hereby designate Ernst & Young LLP to review the Adjustment Certificate, Seller's discrepancy statement and any other relevant documents. The cost of retaining such firm shall be borne by Buyer on the one hand, and Seller, on the other hand, in the same proportion that the aggregate amount of the Final Statement and the calculation disputed items submitted to Ernst & Young, LLP that is resolved in favor of the Final Adjustment Amount. Buyer or Seller bears to the total amount of the disputed items submitted (b) If a Notice of Disagreement is delivered as finally determined by Seller as required pursuant to Section 4.4(aErnst & Young, LLP). Ernst & Young, then the Final Statement LLP shall become final and binding upon all parties hereto on the earlier of (x) the date Seller and Buyer resolve report its conclusions in writing any differences they may have with respect to all matters specified in the Notice of Disagreement Buyer and Seller no later than forty-five (y45) the date all disputed matters are finally resolved in writing by ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ (the “Independent Accountants”). During the 30-day period following the delivery of a Notice of Disagreement, Seller and Buyer shall seek in good faith to resolve any differences which they may have with respect to any matter specified in the Notice of Disagreement and each shall provide the other with reasonable access to any books, records, working papers or other information reasonably necessary or useful in the preparation or calculation of (i) the Final Adjustment Amount, (ii) the Final Statement, or (iii) the Notice of Disagreement. At the end of such 30-day period if there has been no resolution of the matters specified in the Notice of Disagreement, Seller and Buyer shall make a written submission of any and all matters arising under this Section 4.4 that remain in dispute to the Independent Accountants for review and resolution. If ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ is unable or unwilling to act, the Independent Accountants shall be such other nationally recognized independent public accounting firm as shall be reasonably agreed upon by Seller and Buyer. The Independent Accountants shall render a decision resolving the matters submitted to the Independent Accountants within 30 days following submission thereto (or as soon thereafter as reasonably practicable). All fees and expenses of the Independent Accountants incurred after appointment pursuant to this Agreement Section 1.6, and such conclusions as to factual and accounting matters respecting adjustments shall be shared equally by Buyer conclusive on all parties to this Agreement and Seller. (c) If not subject to dispute or review. If, as a result of any adjustments made pursuant to this Section 4.4hereunder, Buyer is finally determined to owe any an amount to Seller, Buyer shall within three five (5) business days pay such amount thereof to Seller, and if Seller is finally determined to owe any an amount to Buyer, Seller shall within three five (5) business days pay such amount thereof to Buyer, and if not so paid, Buyer, at its option, may also make a claim against the Indemnification Fund for any payments of Seller required under this Section 1.6 (in the event of any such claim being paid from the Indemnification Fund, Seller shall immediately replenish the Indemnification Fund in the amount of such payment). Any such payments to be made hereunder shall be made by federal wire transfer of immediately available funds to an account such parties as are designated in writing by the Party party receiving payment and shall bear interest from the Closing Date at the rate of 6% per annum. The Post-Closing Escrow is not intended to be a source of funds for Seller’s payments of any amounts owing under this Section 4.4; provided that to the extent Seller owes Buyer any amount under this Section 4.4 that has been finally determined to be payable to Buyer, and Seller has not paid Buyer such amount as provided for in this Section 4.4(c), then Buyer shall not be required to deliver a notice to the Escrow Agent instructing the Escrow Agent to disburse such amount from the Post-Closing Escrowpayment.