Common use of Net Working Capital Calculation Clause in Contracts

Net Working Capital Calculation. The Company shall prepare a balance sheet of the Net Working Capital as of the Closing Date (the “Closing Balance Sheet”), and calculate the Net Working Capital based upon the Closing Balance Sheet (the “Net Working Capital Calculation”), and deliver the Closing Balance Sheet and Net Working Capital Calculation, along with all relevant documentation, to Parent no later than 30 days after the Closing Date. The Closing Balance Sheet shall be prepared in accordance with GAAP, consistent with past practices of the Company and shall reflect in reasonable detail the items set forth on Schedule 2.4(b); provided, further, for purposes of the Closing Balance Sheet and the Net Working Capital Calculation, the parties agree that any Acquired Assets which are subject to depreciation shall be valued based upon their respective depreciation as of August 25, 2006. The Net Working Capital Calculation shall be binding and final unless within 30 calendar days after delivery of the Closing Balance Sheet and the Net Working Capital Calculation to Parent, Parent delivers to the Company written objection to the Net Working Capital Calculation (a “Net Working Capital Objection Notice”). If Parent delivers a Net Working Capital Objection Notice within the specified time, authorized representatives of Parent and the Company shall promptly negotiate in good faith to resolve such objections. If Parent and the Company are unable to reach an agreement with respect to the objections within 30 calendar days after delivery of such Net Working Capital Objection Notice, Parent shall engage an accounting firm of recognized national standing reasonably acceptable to the Company to review the Net Working Capital Calculation and resolve the objections. If Parent and the Company are unable to so agree on the choice of an accountant within ten calendar days after Parent proposes an accountant to the Company, then an accounting firm shall be selected pursuant to the Commercial Arbitration Rules of the AAA. If there is no timely Net Working Capital Objection Notice as provided above, the Net Working Capital Calculation shall be the binding and final determination of the Net Working Capital. If there is a timely Net Working Capital Objection Notice, the Net Working Capital Calculation as revised, if applicable, by the agreement of Parent and the Company or by the Accountant, if applicable, shall be the binding and final determination of Net Working Capital. The costs and expenses of the Accountant shall be shared equally by Parent and the Company.

Net Working Capital Calculation. The Company shall prepare (i) No later than 60 days after the Closing Date, the Representative will deliver to the Purchaser a balance sheet statement setting forth its calculation of the Net Working Capital as of the Closing Date (the “Closing Balance SheetStatement”). After delivery of the Closing Statement, the Purchaser and its accountants shall be permitted reasonable access to review the Representative’s work papers related to the preparation of the Closing Statement; provided, however, that such work papers shall not include, and calculate the Representative shall have no obligation to provide, any attorney work product relating to its calculation of the Net Working Capital based upon or the Closing Balance Sheet Statement. The Purchaser and its accountants may make inquiries of the Representative regarding questions concerning or disagreements with the Closing Statement arising in the course of their review of the Closing Statement. If the Purchaser has any objections to the Closing Statement, then the Purchaser shall deliver to the Representative a statement (an “Objections Statement”) setting forth in detail any disputes or objections (the “Net Working Capital CalculationObjection Disputes”), and deliver ) to the Closing Balance Sheet and Net Working Capital Calculation, along with all relevant documentation, to Parent no later than 30 days after the Closing Date. The Closing Balance Sheet shall be prepared in accordance with GAAP, consistent with past practices of the Company and shall reflect in reasonable detail the items set forth on Schedule 2.4(b); provided, further, for purposes of the Closing Balance Sheet Statement and the Net Working Capital Calculation, Purchaser’s proposed resolution of each such Objection Dispute. If an Objections Statement is not delivered to the parties agree that any Acquired Assets which are subject to depreciation shall be valued based upon their respective depreciation as of August 25, 2006. The Net Working Capital Calculation shall be binding and final unless Representative within 30 calendar 60 days after delivery of the Closing Balance Sheet Statement, then the Closing Statement as originally delivered by the Representative shall be final, binding and non-appealable by the Parties. If an Objections Statement is timely delivered, then the Representative and the Net Working Capital Calculation to Parent, Parent delivers to the Company written objection to the Net Working Capital Calculation (a “Net Working Capital Objection Notice”). If Parent delivers a Net Working Capital Objection Notice within the specified time, authorized representatives of Parent and the Company Purchaser shall promptly negotiate in good faith to resolve such objections. If Parent any Objection Disputes, but if they do not reach a final resolution within 30 days after the delivery of the Objections Statement, the Representative and the Company are unable Purchaser shall submit each unresolved Objection Dispute to reach an agreement with ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP (the “Independent Auditor”) to resolve such Objection Disputes. The Independent Auditor shall be instructed to set forth a procedure to provide for prompt resolution of any unresolved Objection Disputes and, in any event, to make its determination in respect of such Objection Disputes within 30 days following its retention. The Independent Auditor’s determination of such Objection Disputes shall be final and binding upon the Parties; provided, however, that no such determination shall be any more favorable to the objections within 30 calendar days after delivery of such Net Working Capital Objection Notice, Parent shall engage an accounting firm of recognized national standing reasonably acceptable to the Company to review Representative than is set forth in the Net Working Capital Calculation calculation reflected in the Closing Statement or any more favorable to the Purchaser than is proposed in the Objections Statement. The costs, expenses and resolve fees of the objections. If Parent Independent Auditor shall be borne by the Shareholders, on the one hand, and the Company are unable to so agree Purchaser, on the choice other hand, based on the percentage which the portion of an accountant within ten calendar days after Parent proposes an accountant the contested amount not awarded to such Party bears to the Company, then an accounting firm shall be selected pursuant to the Commercial Arbitration Rules of the AAA. amount actually contested by such Party. (ii) If there is no timely Net Working Capital Objection Notice as provided above, the Net Working Capital Calculation shall be as finally determined pursuant to Section 2.03(a)(i) is greater than either: (a) $4.0 million (if no deduction from the binding and final determination of the Net Working Capital. If there is a timely Net Working Capital Objection Notice, Closing Cash Payment Amount has been made in accordance with Section 3.01(h)) or (b) the Net Working Capital Calculation as revisedreflected in the estimated balance sheet delivered pursuant to Section 3.01(h) (in the event that a deduction from the Closing Cash Payment Amount has been made in accordance with Section 3.01(h)), if applicablethen the Purchaser shall promptly (but in any event within five Business Days of the final determination) pay the amount of such excess to the Shareholders (in the proportions set forth on Schedule 1.01(b)(i)) by wire transfer of immediately available funds as per written instructions of the Shareholders given to the Purchaser. In the event the Purchaser does not pay the Shareholders such excess by wire transfer within five Business Days of the final determination, by then the agreement Purchaser shall pay to the Shareholders (in the proportions set forth on Schedule 1.01(b)(i)) the amount of Parent such excess plus interest for every day that such excess has not been paid in full calculated at a rate of 12% per annum based on the amount of such excess. Notwithstanding anything in this Agreement to the contrary, this obligation to pay to the Shareholders such excess and any interest on such excess pursuant to this subsection shall not be subject to the Company Deductible or by liability limitation provisions of Article VIII. (iii) If the Accountant, if applicable, shall be the binding and final determination of Net Working Capital. The costs and expenses Capital as finally determined pursuant to Section 2.03(a)(i) is less than either: (a) $4.0 million (if no deduction from the Closing Cash Payment Amount has been made in accordance with Section 3.01(h)) or (b) the Net Working Capital as reflected in the estimated balance sheet delivered pursuant to Section 3.01(h) (in the event that a deduction from the Closing Cash Payment Amount has been made in accordance with Section 3.01(h)), then the Shareholders (in the proportions set forth on Schedule 1.01(b)(i)) shall promptly (but in any event within five Business Days of the Accountant final determination) pay to the Purchaser the amount of such shortfall by wire transfer of immediately available funds as per written instructions of the Purchaser given to the Representative. In the event the Shareholders do not pay to the Purchasers such shortfall by wire transfer within five Business Days of the final determination, then the Shareholders shall pay to the Purchaser the amount of such shortfall plus interest for every day that such shortfall has not been paid in full calculated at a rate of 12% per annum based on the amount of the shortfall. Notwithstanding anything in this Agreement to the contrary, this obligation to pay to the Purchaser such shortfall and any interest on such shortfall pursuant to this subsection shall not be shared equally by Parent and subject to the CompanyDeductible or liability limitation provisions of Article VIII.