Common use of Final Closing Balance Sheet Clause in Contracts

Final Closing Balance Sheet. The Closing Balance Sheet or, if it has been adopted or finally determined pursuant to Section 2.7(a)(iii), the Revised Closing Balance Sheet, as appropriate, shall be deemed to be final, binding and conclusive on Parent and the Executing Stockholders, the Executing Option Holders and Non-Owner Participants (the “Final Closing Balance Sheet”) upon the earliest of (A) the failure of the Stockholder Representative to deliver to Parent the Dispute Notice by the twentieth (20th) Business Day following Parent’s delivery of the Closing Balance Sheet to the Stockholder Representative; (B) the resolution of all disputes by Parent and the Stockholder Representative, as evidenced by, if appropriate, a Revised Closing Balance Sheet certified in writing by the Stockholder Representative and Parent; or (C) the resolution of all disputes by the Independent Accounting Firm, and, if applicable, Parent and the Stockholder Representative, in accordance with Section 2.7(a)(iii), as evidenced by written certification by the Stockholder Representative and Parent including, if appropriate, a Revised Closing Balance Sheet. Subject to Section 2.7(b)(ix), any adjustment of the Merger Consideration based on the Final Closing Balance Sheet shall be made on the fifth (5th) Business Day following the determination of the Final Closing Balance Sheet (the “Adjustment Payment Date”) in accordance with Section 2.7(b) below. The unpaid Debt as of the Effective Time as reflected in the Final Closing Balance Sheet is referred to herein as the “Final Closing Debt”. The unpaid Transaction Expenses as of the Effective Time as reflected in the Final Closing Balance Sheet is referred to herein as the “Final Closing Transaction Expenses”. The consolidated Cash of the Centerre Companies as of the Effective Time as reflected in the Final Closing Balance Sheet is referred to herein as the “Final Closing Cash”.

Final Closing Balance Sheet. The (a) As soon as practicable, but in any event within 60 calendar days following the Closing Date, Parent shall prepare (or cause to be prepared under its direction) and deliver to the SBI Representative (A) an unaudited balance sheet of SBI (the “Final Closing Balance Sheet”) as of the Closing Date, and (B) a certificate based on such Final Closing Balance Sheet orsetting forth Parent’s calculation of the Net Working Capital Amount. The Final Closing Balance Sheet shall be prepared in accordance with GAAP and in a manner consistent with historical preparation of the SBI Financial Statements, if except that it has been adopted or finally determined pursuant to Section 2.7(a)(iii), shall not contain the Revised footnotes required thereby. (b) In the event that the Net Working Capital Amount as reflected on the Final Closing Balance Sheet is less than both (i) $13,100,000 and (ii) the amount set forth on the Closing Balance Sheet, then, subject to subparagraph (d) below, Parent shall be entitled to immediately deduct from the Indemnity Escrow, without regard to the Threshold, as appropriatea downward adjustment to the Aggregate Merger Consideration, the dollar amount equal to the difference between the Net Working Capital Amount as reflected on the Closing Balance Sheet and the Net Working Capital Amount as reflected on the Final Closing Balance Sheet. (c) In the event that the Net Working Capital Amount as reflected on the Final Closing Balance Sheet is greater than both (i) $14,100,000 and (ii) the amount set forth on the Closing Balance Sheet, then Parent shall pay to the holders of SBI Shares that were the holders immediately prior to the Effective Time, as an upward adjustment to the Aggregate Merger Consideration, an amount in cash equal to the difference between the Net Working Capital Amount as reflected on the Final Closing Balance Sheet and the Net Working Capital Amount as reflected on the Closing Balance Sheet. Such amount shall be paid to the holders of the SBI Shares that were holders immediately prior to the Effective Time pro rata based on such holders’ portion of the total amount of Aggregate Merger Consideration paid to all holders of SBI Shares in the Merger at the Effective Time. (d) The SBI Representative may dispute any amounts reflected on the Final Closing Balance Sheet; provided, however, that the SBI Representative shall have notified Parent in writing of each disputed item, specifying the amount thereof in dispute, the calculation of the disputed amount and setting forth, in reasonable detail, the basis for such dispute, within 30 calendar days of the SBI Representative’s receipt of the Final Closing Balance Sheet. The SBI Representative shall be deemed to have agreed with all other items and amounts contained in the Final Closing Balance Sheet and the calculation of the Net Working Capital Amount. In the event of such a dispute, the SBI Representative and Parent shall attempt in good faith to reconcile their differences. If the SBI Representative and Parent are unable to reach a resolution within 30 calendar days after receipt by Parent of the SBI Representative’s written notice of dispute, the SBI Representative and Shareholder shall submit the items remaining in dispute for resolution to KPMG LLP (or such other independent accounting firm of national reputation as may be mutually acceptable to Parent and the SBI Representative) (the “Independent Accounting Firm”), which shall, within 60 calendar days of such submission, determine and report to Parent and the SBI Representative upon such remaining disputed items, and such report shall be final, binding and conclusive on Parent and the Executing Stockholders, the Executing Option Holders SBI Representative. The fees and Non-Owner Participants (the “Final Closing Balance Sheet”) upon the earliest disbursements of (A) the failure of the Stockholder Representative to deliver to Parent the Dispute Notice by the twentieth (20th) Business Day following Parent’s delivery of the Closing Balance Sheet to the Stockholder Representative; (B) the resolution of all disputes by Parent and the Stockholder Representative, as evidenced by, if appropriate, a Revised Closing Balance Sheet certified in writing by the Stockholder Representative and Parent; or (C) the resolution of all disputes by the Independent Accounting Firm, and, if applicable, Parent and the Stockholder Representative, in accordance with Section 2.7(a)(iii), as evidenced by written certification Firm shall be paid by the Stockholder Parent; provided however, that if the Independent Accounting Firm shall determine that the net total variance of all items disputed by the SBI Representative and Parent including, if appropriate, a Revised Closing Balance Sheet. Subject to Section 2.7(b)(ix), any adjustment varies by less than 10% of the Merger Consideration based on the Final Closing Balance Sheet shall be made on the fifth (5th) Business Day following the determination amount calculated by Parent, then such fees and disbursements of the Final Closing Balance Sheet (the “Adjustment Payment Date”) in accordance with Section 2.7(b) below. The unpaid Debt as Independent Accounting Firm shall paid out of the Effective Time as reflected in the Final Closing Balance Sheet is referred to herein as the “Final Closing Debt”. The unpaid Transaction Expenses as of the Effective Time as reflected in the Final Closing Balance Sheet is referred to herein as the “Final Closing Transaction Expenses”. The consolidated Cash of the Centerre Companies as of the Effective Time as reflected in the Final Closing Balance Sheet is referred to herein as the “Final Closing Cash”Indemnity Escrow.

Final Closing Balance Sheet. The (i) Following the Closing, Buyer shall prepare and deliver to the Seller no later than the seventy-fifth (75th) day following the Closing Date, a proposed Final Closing Balance Sheet orof the Company setting forth the proposed Final Closing Cash, if it has been adopted or finally determined pursuant Final Debt, Final Seller Transaction Costs and Final Net Working Capital, together with Buyer’s calculation of the Final Purchase Price, together in each case with reasonable supporting {N0221423 } 16 documentation and work papers related thereto. The Final Closing Balance Sheet shall be prepared consistent with the Statement Principles. Buyer’s proposed Final Closing Balance Sheet and calculation of the Final Purchase Price delivered to Section 2.7(a)(iiithe Seller shall be final and binding on the Parties unless the Seller objects within thirty (30) days after receipt thereof by: (1) notifying Buyer in writing of each objection; and (2) delivering to Buyer a written statement describing in reasonable detail the basis for each objection along with the Seller’s proposed Final Closing Balance Sheet and calculation of the Final Purchase Price, which shall set forth the proposed amount of each item with respect to which Seller objects and reasonable supporting detail with respect to the calculation thereof (the notice and statements contemplated by the immediately preceding clauses (1) and (2), the Revised Closing Balance Sheet, as appropriate, shall be deemed to be final, binding and conclusive on Parent and “Objection Notice”); provided that the Executing Stockholders, Seller may not dispute the Executing Option Holders and Non-Owner Participants (the “Statement Principles. Any component of Buyer’s proposed Final Closing Balance Sheet”) upon the earliest of (A) the failure Sheet and calculation of the Stockholder Representative to deliver to Parent Final Purchase Price that is not the Dispute Notice subject of an objection by the twentieth Seller shall be final and binding on the Parties. If Buyer agrees with the objection(s) of the Seller, the Seller’s proposed Final Closing Balance Sheet and the Seller’s calculation of the Final Purchase Price, then the Seller’s proposed Final Closing Balance Sheet and calculation of the Final Purchase Price shall be final and binding on the Parties. (20thii) Business Day Throughout the period following Parentthe Closing Date, Buyer shall permit the Seller and its counsel, accountants and other advisors reasonable access to the books and records and appropriate accounting personnel of the Company in connection with the Final Closing Balance Sheet and calculation of the Final Purchase Price. (iii) The Parties shall use commercially reasonable efforts to resolve any items of disagreement described in Section 2.3(c)(i) as set forth in the Objection Notice; provided, however, that if the Parties are unable to resolve such items of disagreement in a written agreement with respect to all such objections set forth in the Objection Notice within thirty (30) days following Seller’s delivery of the Closing Balance Sheet Objection Notice, then upon written notice from the Seller to Buyer, or from Buyer to the Stockholder Representative; Seller, the items for which there is disagreement set forth in the Objection Notice for which the Parties have not reached written resolution (Bthe “Disputed Items”) shall be submitted for resolution to the resolution McLean, Virginia office of all disputes by Parent BDO USA, LLP or, if such firm is unable or unwilling to act, such other firm of independent accountants of national standing to which the Parties agree and which has not performed services for the Company, the Seller or Buyer within the preceding three (3) year period (the “Independent Accounting Firm”). Within fifteen (15) Business Days after the Independent Accounting Firm has been retained, the Seller and Buyer shall furnish, at its own expense, to the Independent Accounting Firm and the Stockholder Representativeother Party a written statement setting forth its respective computations of the proposed Final Closing Cash, Final Debt, Final Seller Transaction Costs and Final Net Working Capital, together with its respective proposed calculation of the Final Purchase Price, and such Party’s position (together with specific information, evidence and support for such position) with respect to each Disputed Item. Within ten (10) Business Days after the expiration of such fifteen (15) Business Day period, the Seller and Buyer may deliver to the Independent Accounting Firm and to the other Party its response to the other Party’s position on each Disputed Item. With each submission, the Seller and Buyer may also furnish to the Independent Accounting Firm such other information and documents as evidenced by, if appropriate, a Revised Closing Balance Sheet certified in writing by it deems relevant and shall furnish to the Stockholder Representative Independent Accounting Firm such information and Parent; or (C) the resolution of all disputes documents as may be requested by the Independent Accounting Firm, andin each case with appropriate copies or {N0221423 } 17 notification being given to the other Party. In connection with such process, if applicablethere shall be no hearings, Parent oral examinations, testimony, depositions, discovery or other similar proceedings conducted by any Party or by the Independent Accounting Firm, except that the Independent Accounting Firm may, in its discretion, require a conference with the Seller and Buyer, at which conference each Party shall have the Stockholder Representativeright to present additional documents, materials and other information as requested by the Independent Accounting Firm in writing and to have present its advisors, counsel and accountants. The Independent Accounting Firm shall be directed to promptly, and in any event within sixty (60) days after its appointment pursuant to this Section 2.3(c)(iii), render its decision on the Disputed Items. The decision of the Independent Accounting Firm on each Disputed Item may not be greater than the higher position of Buyer or the Seller nor lower than the lower position of Buyer or the Seller with respect to such Disputed Item and shall be limited to fixing mathematical errors and determining whether the items in dispute were determined in accordance with Section 2.7(a)(iii), as evidenced by written certification by this Agreement and the Stockholder Representative and Parent including, if appropriate, a Revised Closing Balance SheetStatement Principles. Subject to Section 2.7(b)(ix), any adjustment The determination of the Merger Consideration based Independent Accounting Firm as to any Disputed Item shall be final and binding on Buyer and the Seller, except in the case of fraud or manifest error by or on the Final Closing Balance Sheet Independent Accounting Firm. The Independent Accounting Firm’s determination as to each Disputed Item shall be made on set forth in a written statement delivered to the fifth (5th) Business Day following Seller and Buyer, which shall include the Independent Accounting Firm’s determination of the Final Closing Balance Sheet (the “Adjustment Payment Date”) in accordance with Section 2.7(b) below. The unpaid Debt as of the Effective Time as reflected in the Final Closing Balance Sheet is referred to herein as the “Final Closing Debt”. The unpaid Transaction Expenses as of the Effective Time as reflected in the Final Closing Balance Sheet is referred to herein as the “Final Closing Transaction Expenses”. The consolidated Cash of the Centerre Companies as of the Effective Time as reflected in the Final Closing Balance Sheet is referred to herein as the “Sheet, including setting forth Final Closing Cash”, Final Debt, Final Seller Transaction Costs and Final Net Working Capital and the Final Purchase Price. The Independent Accounting Firm shall also determine the proportion of its fees and expenses to be paid by the Seller, on one hand, and Buyer, on the other hand, based in inverse proportion to the amount with respect to which the Independent Accounting Firm has accepted the positions of each Party relative to the aggregate amount contested by such Party and each Party shall pay its respective amount, if any, within thirty (30) days after receipt of an invoice therefor from the Independent Accounting Firm. For example, if the Seller submits a Disputed Item to the Independent Accounting Firm with a value of $100,000 and the Independent Accounting Firm awards $75,000 to the Seller, the Seller shall bear 25% of the Independent Accounting Firm’s fees and expenses and Buyer shall bear 75% of the Independent Accounting Firm’s fees and expenses.