Common use of Adjustment Amount Clause in Contracts

Adjustment Amount. (a) As soon as reasonably practicable following the Closing Date, and in any event within sixty (60) calendar days thereof, Buyer shall prepare and deliver to the Holder Representative (i) an unaudited consolidated balance sheet of the Company and its Subsidiaries (the “Closing Balance Sheet”), (ii) a calculation of Net Working Capital (“Closing Date Net Working Capital”), (iii) a calculation of the aggregate amount of all Funded Debt of the Company (“Closing Date Funded Debt”), (iv) a calculation of Cash of the Company (“Closing Date Cash”) and (v) a calculation of the Transaction Expenses (“Closing Date Transaction Expenses”), in each case, calculated as of the Reference Time and, with respect to the calculations described in the foregoing clauses (ii)-(v) (except as provided in this Section 3.4(a)), consistent with the Closing Balance Sheet. The Closing Balance Sheet shall be prepared in accordance with GAAP applied in a manner consistent (except as provided in this Section 3.4(a)) with the principles applied in connection with the preparation of the most recent audited balance sheet included in the Financial Statements (the “Reference Balance Sheet”); provided, however, that (x) except as set forth in clause (y), the Closing Balance Sheet shall be prepared using the same accounting practices, policies, judgments and methodologies used in the preparation of the Reference Balance Sheet and (y) (I) the Closing Balance Sheet shall reflect no changes in reserves (regardless of whether any such reserve is recorded as an offset to a current asset’s carrying value or is included as an accrued liability in the Closing Balance Sheet) from amounts contained in the Reference Balance Sheet, other than changes therein (A) attributable to changes in facts and circumstances occurring after the date of the Reference Balance Sheet or (B) required to reflect facts as of the date of the Reference Balance Sheet, but in this clause (B) solely to extent the reserves in the Reference Balance Sheet reflected underlying errors of fact (and not due to differences in judgments or principles applied), (II) the treatment of leases as capital leases or operating leases shall be identical to their treatment in the Reference Balance Sheet, (III) the Closing Balance Sheet shall not reflect any expense or liability for which Buyer is responsible under this Agreement, (IV) notwithstanding anything to the contrary in this Agreement (including the definition of Funded Debt), if the Notes are not redeemed by the Issuers on the Closing Date, for the purposes of defining and calculating the Closing Date Funded Debt, the aggregate amount due and owing in respect of the Notes (or Indenture) shall be deemed to be an amount equal only to (A) the aggregate principal amount of the Notes, as applicable, then outstanding, plus (B) all accrued and unpaid interest, if any, on the Notes, as applicable, then outstanding and (V) the Closing Balance Sheet shall not reflect any income Tax assets, except that current income Tax liabilities included in the calculation of Closing Date Net Working Capital shall take into account and be reduced (but not below zero) by current income

Adjustment Amount. (a) As soon as reasonably practicable following the Closing Date, and in any event within sixty (60) 75 calendar days thereof, Buyer shall prepare and deliver to the Holder Representative Seller (i) an unaudited consolidated balance sheet of the Company and its Subsidiaries (the “Closing Balance Sheet”), (ii) a calculation of Net Working Capital (“Closing Date Net Working Capital”), (iii) a calculation of the aggregate amount of all Funded Debt of the Company Group (“Closing Date Funded Debt”), (iv) a calculation of Cash of the Company Group (“Closing Date Cash”) and (v) a calculation of the Transaction Expenses (the “Closing Date Transaction Expenses”), in each case, calculated as of the Reference Time and, with respect close of business on the Business Day immediately prior to the calculations described in the foregoing clauses (ii)-(v) Closing Date consistent (except as provided in this Section 3.4(a2.4(a) or the definitions of the defined terms used in this Section 2.4(a)), consistent ) with the Closing Balance Sheet. The Closing Balance Sheet shall be prepared in accordance with GAAP GAAP, consistently applied in a manner consistent (except as provided in this Section 3.4(a)) with the principles applied in connection with the preparation without modification of the most recent audited balance sheet included in the Financial Statements (the “Reference Balance Sheet”); provided, however, that (x) except as set forth in clause (y), the Closing Balance Sheet shall be prepared using the same accounting practices, policies, judgments and methodologies principles used in the preparation thereof throughout the periods presented, except to the extent modified by the illustrative calculation of Net Working Capital and the Reference Balance Sheet and notes thereto set forth on Schedule 2.4(a) (ythe “Sample Working Capital Statement”) , with the further understanding that (I) the Closing Balance Sheet shall reflect no changes in reserves (regardless of whether any such reserve is recorded as an offset to a current assetCurrent Asset’s carrying value or is included as an accrued liability in the Closing Balance Sheet) from amounts contained in the Reference Balance Sheet, other than changes therein (A) attributable to changes in facts and circumstances occurring after the date of the Reference Balance Sheet or (B) required to reflect facts as of the date of the Reference Balance Sheet, but (II) except as set forth in this the following clause (BIII), the Closing Balance Sheet shall not give effect to the consummation of the transactions contemplated by this Agreement, including any incurrence by Buyer or its Affiliates (including, after the Closing, the Company Group) solely to extent of Funded Debt or other financing transactions in connection therewith, payments of cash in respect of the reserves Purchase Price or, after the Closing, any other action or omission by Buyer or the Company Group that is not in the Reference ordinary course of business consistent with past practice, (III) the Closing Balance Sheet reflected underlying errors of fact shall not reflect any expense for which Buyer is responsible under this Agreement, and (and not due to differences in judgments or principles applied), (IIIV) the treatment of leases as capital leases or operating leases shall be identical to their treatment in the Reference Balance Sheet. Following the Closing, Buyer shall, upon reasonable advance notice, provide Seller and its representatives reasonable access during normal business hours to the records, personnel and (IIIsubject to the execution of customary work paper access letters if requested) work papers prepared by auditors of the Company Group relating to the preparation of the Closing Balance Sheet and shall not reflect any expense or liability for which Buyer is responsible under this Agreement, (IV) notwithstanding anything to cause the contrary in this Agreement (including the definition of Funded Debt), if the Notes are not redeemed by the Issuers on the Closing Date, for the purposes of defining and calculating the Closing Date Funded Debt, the aggregate amount due and owing in respect personnel of the Notes (or Indenture) shall be deemed to be an amount equal only to (A) Company and its Subsidiaries involved in the aggregate principal amount preparation of the Notes, as applicable, then outstanding, plus (B) all accrued and unpaid interest, if any, on the Notes, as applicable, then outstanding and (V) the Closing Balance Sheet to cooperate with Seller in connection with its review of the Closing Balance Sheet; provided that such access shall be in a manner that does not reflect interfere in any income Tax assets, except that current income Tax liabilities included in material respect with the calculation normal business operations of Closing Date Buyer or the Company Group. “Net Working Capital Capital” as of any time shall take into account mean (i) the consolidated Current Assets of the Company and its Subsidiaries as of such time, minus (ii) the consolidated Current Liabilities of the Company and its Subsidiaries as of such time, in each case, as calculated in accordance with this Section (b) and in a manner consistent with the definitions of the terms Current Assets and Current Liabilities and provided that “Net Working Capital” shall be reduced calculated excluding the impact of intercompany accruals, receivables, accounts or other balances owed by or to one or more members of the Company Group, on the one hand, and one or more of Seller or any of its Affiliates (but not below zero) by current incomeother than a member of the Company Group), on the other hand.

Adjustment Amount. (a) As soon as reasonably practicable following the Closing Date, and in any event within sixty (60) 90 calendar days thereof, Buyer shall prepare and deliver to the Holder Representative Seller a written statement setting forth, in reasonable detail, Buyer’s good faith calculation of (i) an unaudited consolidated balance sheet of the Company and its Subsidiaries (the “Closing Balance Sheet”)Net Working Capital, (ii) a calculation of Net Working Capital (“Closing Date Net Working Capital”), (iii) a calculation of the aggregate amount of all Funded Debt of the Company Closing Indebtedness, (“iii) Closing Date Funded Debt”)Cash, (iv) a calculation of Cash of the Company (“Closing Date Cash”) and Transaction Expenses, (v) a calculation on the basis of the Transaction Expenses foregoing, the Closing Net Working Capital Adjustment Amount, and (vi) on the basis of the foregoing, the Closing Purchase Price (together with the calculations referred to in clauses ‎(i) through ‎(vi) above, the “Final Closing Date Transaction ExpensesStatement”), in each case, calculated as of the Reference Time and, with respect to the calculations described in the foregoing clauses (ii)-(v) (except as provided in this Section 3.4(a)), consistent with the Closing Balance Sheet. The Closing Balance Sheet Net Working Capital, Closing Indebtedness and Closing Cash shall be prepared in accordance with GAAP applied in a manner consistent (except as provided the Accounting Principles and the defined terms used in this ‎Section 2.06(a); provided, that the Final Closing Statement (and any amounts included therein) shall not give effect to the consummation of the Transactions, including any act or omission by Buyer or any of its Subsidiaries or any of the Company Entities taken at or after the Closing (other than the Pre-Closing Reorganization) or reflect any payments of cash in respect of the Purchase Price, or any financing transactions in connection therewith or reflect any expense or liability, in each case, for which Buyer is expressly responsible under this Agreement. For the avoidance of doubt, the calculations and the purchase price adjustment to be made pursuant to this ‎Section 2.06 are only meant to reflect the proper calculation of Closing Purchase Price (and the inputs thereto) in accordance with the Accounting Principles and the applicable definitions contained therein and otherwise in this Agreement and the applicable terms and conditions of this Agreement. Nothing in this ‎Section 2.06 is intended to be used to adjust for errors or omissions that may be found with respect to the Financial Statements or any inconsistencies or questions of interpretation between the Accounting Principles, on the one hand, and GAAP, on the other. No change in GAAP or Applicable Law after the Closing, shall be taken into consideration in the calculations to be made pursuant to ‎Section 2.04 or this ‎Section 2.06. If Buyer fails to timely deliver the Final Closing Statement in accordance with the first sentence of this ‎Section 2.06(a) within such 90-day period, then, (i) Buyer shall no longer have the right to deliver a Final Closing Statement, and (ii) within 30 days following the expiration of such 90-day period, Seller may, in its sole discretion, elect, by delivering written notice to Buyer, to cause the Preliminary Closing Statement delivered by Seller to Buyer pursuant to ‎Section 2.04 to be deemed to be the Final Closing Statement, for all purposes hereunder, in which case, for the avoidance of doubt, Seller shall continue to be entitled to exercise the dispute procedures set forth in Section 3.4(a)2.06‎(c) with respect to such Final Closing Statement for all purposes hereunder. (b) Following the principles applied in connection with Closing, Buyer and its Affiliates shall provide Seller, its Affiliates and its and their Representatives access to the records, properties, personnel and (subject to the execution of customary work paper access letters if requested) auditors and independent accountants of the Company Entities relating to the preparation of the most recent audited balance sheet included in Final Closing Statement and shall cause the Financial Statements (the “Reference Balance Sheet”); provided, however, that (x) except as set forth in clause (y), the Closing Balance Sheet shall be prepared using the same accounting practices, policies, judgments and methodologies used in the preparation personnel of the Reference Balance Sheet Company Entities to cooperate with Seller in connection with its review of the Final Closing Statement and (y)the calculation of Closing Net Working Capital, Closing Indebtedness, Closing Cash and Transaction Expenses. (Ic) the Closing Balance Sheet If Seller shall reflect no changes in reserves (regardless disagree with any of whether any such reserve is recorded as an offset to a current assetBuyer’s carrying value or is included as an accrued liability in the Closing Balance Sheet) from amounts calculations contained in the Reference Balance SheetFinal Closing Statement, other than changes therein (A) attributable to changes Seller shall notify Buyer of such disagreement in facts and circumstances occurring writing, setting forth in reasonable detail the particulars of such disagreement, within 30 days after the date their receipt of the Reference Balance Sheet or (B) required to reflect facts as Final Closing Statement. If Seller does not provide such a notice of the date of the Reference Balance Sheetdisagreement within such 30-day period, but in this clause (B) solely to extent the reserves in the Reference Balance Sheet reflected underlying errors of fact (and not due to differences in judgments or principles applied), (II) the treatment of leases as capital leases or operating leases Seller shall be identical deemed to their treatment in the Reference Balance Sheet, (III) the Closing Balance Sheet shall not reflect any expense or liability for which Buyer is responsible under this Agreement, (IV) notwithstanding anything have agreed to the contrary in this Agreement Final Closing Statement (including the definition determinations included therein) delivered by Buyer, which shall be final, binding and conclusive for all purposes hereunder. In the event any such notice of Funded Debtdisagreement is timely provided, B▇▇▇▇ and Seller shall use their respective reasonable best efforts for a period of 30 days (or such longer period as they may mutually agree) to resolve any disagreements with respect to any calculations contained in the Final Closing Statement. If, at the end of such period, Buyer and Seller are unable to resolve such disagreements, then any such remaining disagreements (such remaining disagreements, the “Disputed Items”) shall, at the written request of either Buyer or Seller, be resolved by the Auditor. Buyer and Seller shall promptly provide their assertions regarding the Disputed Items in writing to the Auditor and to each other. The Auditor shall be instructed to promptly review this Agreement and the Disputed Items and render its determination with respect to the Disputed Items as soon as reasonably possible (which the parties hereto agree should not be later than 60 days following the date on which the disagreement is referred to the Auditor), if it being understood that in rendering such determination, the Notes are Auditor shall be functioning as an expert and not redeemed as an arbitrator. The Auditor shall be bound by the Issuers terms and conditions of this Agreement and the Accounting Principles and shall base its determination solely on (i) the written submissions of the parties and the terms and provisions of this Agreement and shall not conduct an independent investigation (and the parties agree that there shall be no ex parte communications with the Auditor), and (ii) the extent (if any) to which Closing Net Working Capital, Closing Indebtedness, Closing Cash and/or Transaction Expenses require adjustment (only with respect to the Disputed Items submitted to the Auditor) in order to be determined in accordance with ‎Section 2.06(a) (including the definitions of the defined terms used in ‎Section 2.06(a)). The Auditor shall not assign a value to any Disputed Item submitted to the Auditor greater than the greatest value for such item claimed by either party or less than the smallest value for such item claimed by either party. The Auditor shall act in its capacity as an expert and not an arbitrator. The determination of the Auditor shall be final, conclusive and binding on the parties. The date on which Closing Net Working Capital, Closing Indebtedness, Closing Cash, Transaction Expenses, Closing Net Working Capital Adjustment Amount and Closing Purchase Price are finally determined in accordance with this ‎Section 2.06(c) is hereinafter referred to as the “Determination Date.” All fees and expenses of the Auditor relating to the work, for if any, to be performed by the purposes Auditor hereunder shall be borne between Buyer, on the one hand, and Seller, on the other hand, based upon a fraction, the numerator of defining and calculating which is the Closing Date Funded Debt, portion of the aggregate amount due of the Disputed Items not awarded to the applicable party and owing the denominator of which is the aggregate amount of the Disputed Items. For example, if Seller challenges items underlying the calculations of Closing Net Working Capital, Closing Indebtedness, Closing Cash and/or Transaction Expenses in the net amount of $1,000,000, and the Auditor determines that Seller has a valid claim for $400,000 of the $1,000,000, Seller shall bear 60% of the fees and expenses of the Auditor and Buyer shall bear 40% of the fees and expenses of the Auditor. (d) The “Adjustment Amount,” which may be positive or negative, shall mean the Closing Purchase Price (as finally determined in accordance with ‎Section 2.06(a) or ‎2.06(c), as applicable) minus the Estimated Closing Purchase Price. The Adjustment Amount shall be paid in accordance with ‎Section 2.06(e). (e) If the Adjustment Amount is a positive number (such amount, the “Increase Amount”), then, promptly following the Determination Date, and in any event within three Business Days of the Determination Date, Buyer shall pay or cause to be paid to Seller an amount equal to the Increase Amount in immediately available funds by wire transfer to Seller’s Bank Account or such other account designated by Seller in writing. If the Adjustment Amount is a negative number (the absolute value of such amount, the “Deficit Amount”), then, promptly following the Determination Date, and in any event within three Business Days of the Determination Date, Seller shall pay to Buyer an amount equal to the Deficit Amount in immediately available funds by wire transfer to an account of Buyer designated by Buyer in writing. If the Adjustment Amount is zero, than no payment shall be required pursuant to this Section 2.06(e). (f) Any payment owed pursuant to ‎Section 2.06(e) and Section 2.07 (including for the avoidance of doubt on any amount in respect of the Notes Estimated Net Working Capital Adjustment Amount not paid at the Closing) shall also bear interest from and including the Closing Date to, but excluding the date of payment, at a rate per annum equal to (i) the secured overnight financing rate of interest published by the Federal Reserve Bank of New York (or Indenture) shall be deemed to be an amount equal only to (A) the aggregate principal amount a successor administrator of the Notes, secured overnight financing rate of interest) on its website as applicable, then outstandingin effect from time to time, plus (Bii) all accrued five percentage points, during the period from the date such payment was required to be made hereunder, to the date of payment. Such interest shall be payable at the same time as the payment to which it relates and unpaid interest, if any, shall be calculated daily on the Notes, as applicable, then outstanding basis of a year of 365 days and (V) the Closing Balance Sheet shall not reflect any income Tax assets, except that current income Tax liabilities included in the calculation actual number of Closing Date Net Working Capital shall take into account and be reduced (but not below zero) by current incomedays elapsed.

Adjustment Amount. (a) As soon as reasonably practicable following the Closing Date, and in any event within sixty (60) calendar days thereof, Buyer shall prepare and deliver to the Holder Representative (iA) an unaudited consolidated balance sheet of the Company and its Subsidiaries (provided that such balance sheet may omit information concerning shareholders equity) (the “Closing Balance Sheet”) and (B) a closing statement (together with the Closing Balance Sheet, the “Closing Statements”), setting forth (iii) a calculation of Net Working Capital (“Closing Date Net Working Capital”), (iiiii) a calculation of the aggregate amount of all Funded Debt of the Company (“Closing Date Funded Debt”), (iii) a calculation of the aggregate amount of all Transaction Expenses (“Closing Transaction Expenses”), and (iv) a calculation of Cash of the Company (“Closing Date Cash”) and (v) a calculation of the Transaction Expenses (“Closing Date Transaction Expenses”), in each case, calculated as of the Reference Measurement Time and(provided, with respect however, that (x) Accrued Income Taxes taken into account in the calculation of Closing Date Funded Debt shall be determined as of the end of the day on the Closing Date and (y) for purposes of determining the amount of Closing Transaction Expenses, such amount shall be determined as of immediately prior to the calculations described in the foregoing clauses (ii)-(v) (except as provided in this Section 3.4(aClosing)), consistent with the Closing Balance Sheet. The Closing Balance Sheet Statements shall each be prepared in accordance with GAAP GAAP, applied in a manner consistent (except as provided in this Section 3.4(a)) with the principles principles, to the extent in conformity with GAAP applied in connection with the preparation of the most recent audited balance sheet included in the Financial Statements (the “Reference Balance Sheet”); provided, however, that (x) except as set forth in clause (y), the Closing Balance Sheet shall be prepared using the same accounting practices, policies, judgments and methodologies used in the preparation of the Reference Balance Sheet and (y) Sheet; provided, however, that (I) the Closing Balance Sheet Statements shall reflect no changes new reserves or increase in existing reserves (regardless of whether any such reserve is recorded as an offset to a current asset’s carrying value or is included as an accrued liability in the Closing Balance Sheet) from amounts contained in the Reference Balance Sheet, other than changes therein (A) attributable to changes in facts and circumstances occurring after the date of the Reference Balance Sheet or (B) required to reflect facts as of the date of the Reference Balance Sheet, but in this clause (B) solely to extent the reserves in the Reference Balance Sheet reflected underlying errors of fact (and not due to differences in judgments or principles applied), (II) the treatment of leases except as capital leases or operating leases shall be identical to their treatment set forth in the Reference Balance Sheetfollowing clause (IV), the Pre-Closing Statement and the Closing Statements shall not give effect to any payments of cash in respect of the Merger Consideration or any Buyer financing transactions in connection therewith or, after the Effective Time, any other action or omission by Buyer, the Surviving Corporation or any of its Subsidiaries that is not in the ordinary course of business, (III) the Pre-Closing Balance Sheet Statement and the Closing Statements shall not reflect any expense or liability for which Buyer is responsible under this Agreement, Agreement and (IV) notwithstanding anything the Pre-Closing Statement and the Closing Statements shall include the effects of the Transaction Tax Deductions. Following the Closing, Buyer shall provide the Holder Representative and its representatives such reasonable access during normal business hours and upon reasonable advance notice, to the contrary in this Agreement records, properties, personnel and (including subject to the definition execution of Funded Debt), customary work paper access letters if requested) auditors of the Notes are not redeemed Company and its Subsidiaries relating to the preparation of the Closing Statements as reasonably requested by the Issuers on Holder Representative and shall cause the personnel of the Company and its Subsidiaries to reasonably cooperate with the Holder Representative in connection with its review of the Closing DateStatements as reasonably requested by the Holder Representative. (b) If the Holder Representative shall disagree with such calculations of Closing Date Net Working Capital, for the purposes of defining and calculating the Closing Date Funded Debt, Closing Transaction Expenses or Closing Date Cash, it shall notify Buyer of such disagreement in writing (a “Dispute Notice”), setting forth in reasonable detail the aggregate amount due particulars of such disagreement and owing in respect setting forth the basis for such disagreement (all calculations, components thereof or other items or amounts that are the subject of a Dispute Notice, the “Disputed Items”), within thirty (30) days after its receipt of the Notes (or Indenture) shall be deemed to be an amount equal only to (A) the aggregate principal amount of the Notes, as applicable, then outstanding, plus (B) all accrued and unpaid interest, if any, on the Notes, as applicable, then outstanding and (V) the Closing Balance Sheet shall not reflect any income Tax assets, except that current income Tax liabilities included in the calculation of Closing Date Net Working Capital shall take into account and be reduced (but not below zero) by current incomeClosing

Adjustment Amount. (a) As soon as reasonably practicable following the Closing Date, and in any event within sixty seventy-five (6075) calendar days thereof, Buyer Acquiror shall prepare and deliver to the Holder Representative (i) an unaudited consolidated balance sheet of the Company and its Subsidiaries (the “Closing Balance Sheet”), (ii) a calculation of Net Working Capital (“Closing Date Net Working Capital”)) prepared in accordance with the NWC Methodology, (iii) a calculation of the aggregate amount of all Funded Debt Indebtedness of the Company (“Closing Date Funded DebtIndebtedness”), (iv) a calculation of Cash and Cash Equivalents of the Company (“Closing Date Cash”) ), and (v) a calculation of the unpaid and accrued Transaction Expenses (“Closing Date Unpaid Transaction Expenses”), in each case, calculated as of 12:01 a.m. Pacific Time on the Reference Closing Date (provided that Taxes included in such calculation shall be calculated as of 11:59 p.m. Pacific Time and, with respect to on the calculations described Closing Date but shall exclude any Taxes incurred as a result of any actions set forth in the foregoing clauses (ii)-(vproviso to Section 8.2(a)(iv)) consistent (except as provided in this Section 3.4(a‎3.4(a)), consistent ) with the Closing Balance SheetSheet without giving effect to the consummation of the Merger or any financing transactions in connection therewith or, after the Effective Time, any other action or omission by Acquiror, the Surviving Corporation or any of its Subsidiaries that is not in the ordinary course of business consistent with past practice (provided that Taxes included in such calculation shall be calculated as of 11:59 p.m. Pacific Time on the Closing Date but shall exclude any Taxes incurred as a result of any actions set forth in the proviso to Section 8.2(a)(iv)). The Closing Balance Sheet shall be prepared in accordance with GAAP applied in a manner consistent (except as provided in this Section 3.4(a)) with the principles accounting principles, practices and methodologies applied in connection with the preparation of the most recent audited balance sheet included in the Financial Statements (the “Reference Balance Sheet”); provided, however, that (x) except as set forth in clause (y). For the purpose of determining Closing Date Net Working Capital, the Closing Balance Sheet shall be prepared using the same accounting practices, policies, judgments consolidated current assets and methodologies used in the preparation current liabilities of the Reference Balance Sheet Company and (y)its Subsidiaries shall exclude the value of all Transaction Expenses. (Ib) If the Closing Balance Sheet shall reflect no changes in reserves (regardless of whether any such reserve is recorded as an offset to a current asset’s carrying value or is included as an accrued liability in the Closing Balance Sheet) from amounts contained in the Reference Balance Sheet, other than changes therein (A) attributable to changes in facts and circumstances occurring after the date of the Reference Balance Sheet or (B) required to reflect facts as of the date of the Reference Balance Sheet, but in this clause (B) solely to extent the reserves in the Reference Balance Sheet reflected underlying errors of fact (and not due to differences in judgments or principles applied), (II) the treatment of leases as capital leases or operating leases shall be identical to their treatment in the Reference Balance Sheet, (III) the Closing Balance Sheet shall not reflect any expense or liability for which Buyer is responsible under this Agreement, (IV) notwithstanding anything to the contrary in this Agreement (including the definition of Funded Debt), if the Notes are not redeemed by the Issuers on the Closing Date, for the purposes of defining and calculating the Closing Date Funded Debt, the aggregate amount due and owing in respect of the Notes (or Indenture) shall be deemed to be an amount equal only to (A) the aggregate principal amount of the Notes, as applicable, then outstanding, plus (B) all accrued and unpaid interest, if any, on the Notes, as applicable, then outstanding and (V) the Closing Balance Sheet shall not reflect any income Tax assets, except that current income Tax liabilities included in Holder Representative disagrees with the calculation of Closing Date Net Working Capital, Closing Date Indebtedness, Closing Date Cash and/or Closing Date Unpaid Transaction Expenses, it shall notify Acquiror of such disagreement in writing, setting forth in reasonable detail the particulars of such disagreement, within fifteen (15) days after its receipt of the Closing Balance Sheet. In the event that the Holder Representative does not provide such a notice of disagreement within such fifteen (15)-day period, the Holder Representative shall be deemed to have accepted the Closing Balance Sheet and the calculation of Closing Date Net Working Capital, Closing Date Indebtedness, Closing Date Cash and Closing Date Unpaid Transaction Expenses delivered by Acquiror, which shall be final, binding and conclusive for all purposes hereunder. In the event any such notice of disagreement is timely provided, Acquiror and the Holder Representative shall use reasonable best efforts for a period of thirty (30) days (or such longer period as they may mutually agree in writing) to resolve any such disagreements specified in such notice. During such time, Acquiror shall provide the Holder Representative and its representatives reasonable access (during normal business hours and upon reasonable advance notice), to the relevant financial books and records of the Company and its Subsidiaries relating to the preparation of the Closing Balance Sheet, solely for the purposes of the review and objection right contemplated herein, together with reasonable access to the individuals responsible for the preparation of the Closing Balance Sheet in order to respond to the inquiries of the Holder Representative and its representatives related thereto. If, at the end of such period, they are unable to resolve such disagreements, then such independent accounting or financial consulting firm of recognized national standing as may be mutually selected by Acquiror and the Holder Representative (the “Auditor”) shall resolve any remaining disagreements properly included in such notice of disagreement between the parties with respect to the calculation of Closing Date Net Working Capital, Closing Date Indebtedness, Closing Date Cash and/or Closing Date Unpaid Transaction Expenses. Each of Acquiror and the Holder Representative shall promptly provide their assertions regarding such disagreements in writing to the Auditor and to each other. The Auditor shall be instructed to render its determination with respect to such disagreements as soon as reasonably possible (which the parties hereto agree should not be later than thirty (30) days following the day on which any such disagreements are referred to the Auditor). The Auditor shall base its determination solely on (i) the written submissions of the parties and (ii) the extent (if any) to which the Closing Date Net Working Capital, Closing Date Indebtedness, Closing Date Cash and/or Closing Date Unpaid Transaction Expenses require adjustment in order to be determined in accordance with Section ‎3.4(a) (including the definitions of the defined terms used in Section ‎3.4(a)). The determination of the Auditor shall be final, conclusive and binding on the parties. The date on which Closing Date Net Working Capital, Closing Date Indebtedness, Closing Date Cash and Closing Date Unpaid Transaction Expenses are finally determined in accordance with this Section ‎3.4(b) is hereinafter referred to as the “Determination Date.” All fees and expenses of the Auditor relating to the work, if any, to be performed by the Auditor hereunder shall be borne pro rata as between Acquiror, on the one hand, and the Holder Representative (on behalf of the Pre-Closing Holders), on the other hand, in proportion to the allocation of the dollar value of the amounts in dispute between Acquiror and the Holder Representative made by the Auditor such that the party prevailing on the greater dollar value of such disputes pays the lesser proportion of the fees and expenses. (c) The “Adjustment Amount,” which may be positive or negative, shall mean (i) (A) Closing Date Net Working Capital (as finally determined in accordance with Section ‎3.4(b)), minus (B) Estimated Closing Date Net Working Capital, plus (ii) (A) Estimated Closing Date Indebtedness, minus (B) Closing Date Indebtedness (as finally determined in accordance with Section ‎3.4(b)), plus (A) Closing Date Cash (as finally determined in accordance with Section ‎3.4(b)), minus (B) Estimated Closing Date Cash, plus (iv) (A) Estimated Closing Date Unpaid Transaction Expenses, minus (B) Closing Date Unpaid Transaction Expenses (as finally determined in accordance with Section ‎3.4(b)). If the Adjustment Amount is a positive number, then the Merger Consideration shall take be increased by the Adjustment Amount, and if the Adjustment Amount is a negative number (the absolute value of such negative amount, the “Deficit Amount”), the Merger Consideration shall be decreased by the Deficit Amount. The Adjustment Amount shall be paid in accordance with Section 3.4(d). (d) If the Adjustment Amount is a positive number, then, promptly following the Determination Date, and in any event within five (5) Business Days of the Determination Date, the Escrow Agent shall pay to the Exchange Agent for further distribution to each Pre-Closing Holder or the Surviving Corporation, for onward payment to the Pre-Closing Holders with respect of Canceled Options, in the manner provided in Section ‎3.2(e), an amount in cash equal to (A) the Purchase Price Escrow Funds, multiplied by (B) such holder’s Applicable Percentage, less any applicable withholding Taxes (other than any income, employment or payroll Taxes required to be withheld in respect of Canceled Options, which Taxes shall be withheld by the Surviving Corporation). If the Adjustment Amount is a negative number, then, promptly following the Determination Date, and in any event within five (5) Business Days of the Determination Date, (x) the Escrow Agent shall pay to Acquiror an amount equal to the Deficit Amount, and (y) if any of the Purchase Price Escrow Funds remain after such payment to Acquiror, the Escrow Agent shall pay to each Pre-Closing Holder or the Surviving Corporation, for onward payment to the Pre-Closing Holders with respect to Canceled Options, in the manner provided in Section ‎3.2(e) an amount in cash equal to (i) the balance of the Purchase Price Escrow Funds, multiplied by (ii) such holder’s Applicable Percentage, less any applicable withholding Taxes (other than any income, employment or payroll Taxes required to be withheld in respect of Employee Options, which Taxes shall be withheld by the Surviving Corporation) (in each case, following deduction from the Purchase Price Escrow Funds of any incremental Transaction Expenses). Upon determination of the Adjustment Amount pursuant to Section ‎‎3.4(b) and Section ‎‎3.4(c), each of Acquiror and the Holder Representative shall execute joint written instructions to the Escrow Agent instructing the Escrow Agent to disburse the Purchase Price Escrow Funds in accordance with this Section‎ ‎3.4(d). In the event that Acquiror is entitled to payment pursuant to this Section ‎3.4(d) in an amount in excess of the Purchase Price Escrow Funds (such excess, the “Adjustment Overage Amount”), Acquiror shall be entitled to payment of, and the Escrow Agent shall pay (concurrent with the payment of the Purchase Price Escrow Funds), the Adjustment Overage Amount, from and to the extent of the Indemnification Escrow Funds. In the event that the Adjustment Amount is a positive number in an amount in excess of the Purchase Price Escrow Funds, then, promptly following the Determination Date and prior to the delivery of joint instructions to the Escrow Agent as provided in this Section ‎3.4(d), Acquiror shall deposit with the Exchange Agent for deposit into the escrow account (and forming part of the Purchase Price Escrow Funds), the amount by which the Adjustment Amount exceeds the Purchase Price Escrow Funds, for further distribution in accordance with this Section ‎3.4(d). (e) Any payment or disbursement pursuant to this Section 3.4 shall be reduced (but not below zero) treated by current incomethe parties hereto for all Tax purposes as adjustments to the Merger Consideration to the extent permitted by applicable Law.

Adjustment Amount. (a) As soon as reasonably practicable following the Closing Date, and in any event within sixty ninety (6090) calendar days thereof, Buyer shall prepare and deliver to the Holder Representative, together with such schedules and data with respect to the determination of each of the following as the Holder Representative deems reasonably appropriate to support such calculations and estimates, (i) an unaudited consolidated balance sheet of the Company and its Subsidiaries (the “Closing Balance Sheet”), (ii) a calculation of Net Working Capital (“Closing Date Net Working Capital”), (iiiii) a calculation of the aggregate amount of all Funded Debt of the Company (“Closing Date Funded Debt”), (iviii) a calculation of Cash of the Company (“Closing Date Cash”) and (viv) a calculation of the consolidated liabilities of the Company and its Subsidiaries for Company Transaction Expenses (the “Closing Date Unpaid Company Transaction Expenses”), in each case, calculated as of the Reference Time and, with respect to the calculations described in the foregoing clauses 11:59 p.m. (ii)-(vEastern time) (except as provided in this Section 3.4(a)), consistent with on the Closing Balance Sheet. The Closing Balance Sheet shall be prepared in accordance with GAAP applied in a manner Date (x) consistent (except as provided in this Section 3.4(a)) with the principles definitions of Closing Date Net Working Capital, Closing Date Funded Debt, Closing Date Cash, and Closing Date Unpaid Company Transaction Expenses (and in each case any definitions of defined terms used therein) (such amounts defined by such definitions, the “Price Components”) and (y) in accordance with GAAP applied in connection a manner consistent with the same accounting principles, practices, policies, methodologies and judgments applied in the preparation of the most recent audited balance sheet included in the Financial Statements (the “Reference Balance Sheet”); provided, however, that (x) except as set forth in clause (y), the Closing Balance Sheet shall be prepared using the same accounting practices, policies, judgments and methodologies used in the preparation of the Reference Balance Sheet and (y) (I) the Closing Balance Sheet Price Components shall reflect no changes in reserves (regardless of whether any such reserve is recorded as an offset to a current asset’s carrying value or is included as an accrued liability in the Closing Balance Sheet) from amounts contained in the Reference Balance Sheet, other than changes therein (A) attributable to changes in facts and circumstances occurring after the date of the Reference Balance Sheet or (B) required to reflect facts as of the date of the Reference Balance Sheet, but in this clause (B) solely to extent the reserves in the Reference Balance Sheet reflected underlying errors of fact (and not due to differences in judgments or principles applied), (II) except as set forth in the following clause (V), the calculation of the Price Components shall not give effect to the consummation of the Merger, including any payments of cash in respect of the Merger Consideration or any financing transactions in connection therewith or, after the Effective Time, any other action or omission by Buyer, the Surviving Company or any of its Subsidiaries that is not in the ordinary course of business consistent with past practice, (III) the treatment of leases as capital leases or operating leases shall be identical to their treatment in the Reference Balance Sheet, (IIIIV) the Closing Balance Sheet Price Components shall not reflect any expense or liability for which Buyer is responsible under this Agreement, (IV) notwithstanding anything to the contrary in this Agreement (including the definition of Funded Debt), if the Notes are not redeemed by the Issuers on the Closing Date, for the purposes of defining and calculating the Closing Date Funded Debt, the aggregate amount due and owing in respect of the Notes (or Indenture) shall be deemed to be an amount equal only to (A) the aggregate principal amount of the Notes, as applicable, then outstanding, plus (B) all accrued and unpaid interest, if any, on the Notes, as applicable, then outstanding and (V) the Closing Balance Sheet shall not reflect any income Tax assets, except that current income Tax liabilities included in the calculation determination of Closing Date Net Working Capital shall take into account include the effects of any deductions or other Tax benefits arising in connection with the consummation of the transactions contemplated hereby (the accounting principles, practices, policies, methodologies and judgments in subsection (y) being referred to collectively as the “Accounting Principles”). (b) Following the Closing, Buyer shall provide the Holder Representative and its representatives reasonable access, during normal business hours, in such manner as to not interfere with the normal operation of the Company and its Subsidiaries, to the records, properties, appropriate personnel and (subject to the execution of customary work paper access letters if requested) auditors of the Company and its Subsidiaries relating to the calculation of the Price Components and shall cause the appropriate personnel of the Company and its Subsidiaries to cooperate with the Holder Representative’s reasonable requests in connection with its review of the calculation of the Price Components. (c) If the Holder Representative shall disagree with such calculations of Closing Date Net Working Capital, Closing Date Funded Debt, Closing Date Cash or Closing Date Unpaid Company Transaction Expenses, it shall notify Buyer of such disagreement in writing, setting forth in reasonable detail the particulars of such disagreement, within forty-five (45) days after its receipt of the calculation of the Price Components pursuant to Section 3.4(a). In the event that the Holder Representative does not provide a notice of disagreement within such forty-five (45)-day period, the Holder Representative and Buyer shall be reduced deemed to have agreed to the calculations of Closing Date Net Working Capital, Closing Date Funded Debt, Closing Date Cash and Closing Date Unpaid Company Transaction Expenses delivered by Buyer, which shall be final, binding and conclusive for all purposes hereunder. In the event any notice of disagreement is timely provided, Buyer and the Holder Representative shall use reasonable best efforts for a period of fifteen (15) days (or such longer period as they may mutually agree) to resolve any disagreements with respect to the calculations of Closing Date Net Working Capital, Closing Date Funded Debt, Closing Date Cash or Closing Date Unpaid Company Transaction Expenses. If, at the end of such period, they are unable to resolve such disagreements, then any such remaining disagreements shall be resolved by Protiviti Inc. or, if such firm is unable or unwilling to serve in such capacity, such other nationally recognized independent accounting or financial consulting firm as may be mutually selected by Buyer and the Holder Representative (such firm, subject to the following proviso, the “Auditor”); provided, that if the Holder Representative and Buyer cannot agree on such alternative Auditor, either party may request that the American Arbitration Association (the “AAA”) choose the Auditor, in which case the AAA’s choice of the Auditor will be binding and the expenses of the AAA will be shared 50% by Buyer and 50% by the Holder Representative. Each of Buyer and the Holder Representative shall promptly provide their respective assertions regarding Closing Date Net Working Capital, Closing Date Funded Debt, Closing Date Cash and Closing Date Unpaid Company Transaction Expenses in writing to the Auditor and to each other. The Auditor shall be instructed to render its determination with respect to such disagreements as soon as reasonably possible (which the parties hereto agree should not be later than sixty (60) days following the day on which the disagreement is referred to the Auditor). The Auditor shall, acting as an expert and not an arbiter, base its determination solely on (i) the written submissions of the parties and shall not conduct an independent investigation and (ii) the extent (if any) to which Closing Date Net Working Capital, Closing Date Funded Debt, Closing Date Cash or Closing Date Unpaid Company Transaction Expenses require adjustment (only with respect to the remaining disagreements submitted to the Auditor) in order to be determined in accordance with Section 3.4(a) (including the definitions of the defined terms used in Section 3.4(a)). The determination of the Auditor shall be final, conclusive and binding on the parties. The date on which Closing Date Net Working Capital, Closing Date Funded Debt, Closing Date Cash and Closing Date Unpaid Company Transaction Expenses are finally determined in accordance with this Section 3.4(c) is hereinafter referred to as the “Determination Date.” All fees and expenses of the Auditor relating to the work, if any, to be performed by the Auditor hereunder shall be borne pro rata as between Buyer, on the one hand, and the Holder Representative as a Holder Representative Expense, on the other hand, in proportion to the allocation of the dollar value of the amounts in dispute as between Buyer and the Holder Representative (set forth in the written submissions to the Auditor) made by the Auditor such that the party prevailing on the greater dollar value of such disputes pays the lesser proportion of the fees and expenses. For example, if the Holder Representative challenges items underlying the calculations of Closing Date Net Working Capital, Closing Date Funded Debt and Closing Date Cash in the net amount of $1,000,000, and the Auditor determines that Buyer has a valid claim for $400,000 of the $1,000,000, Buyer shall bear 60% of the fees and expenses of the Auditor and the Holder Representative shall bear the remaining 40% of the fees and expenses of the Auditor as a Holder Representative Expense. (d) The “Adjustment Amount,” which may be positive or negative, shall mean (i) Closing Date Net Working Capital (as finally determined in accordance with Section 3.4(c)), minus Estimated Closing Date Net Working Capital, plus (ii) Estimated Closing Date Funded Debt, minus Closing Date Funded Debt (as finally determined in accordance with Section 3.4(c)), plus (iii) Closing Date Cash, minus Estimated Closing Date Cash (as finally determined in accordance with Section 3.4(c), plus (iv) Estimated Closing Date Unpaid Company Transaction Expenses, minus Closing Date Unpaid Company Transaction Expenses (as finally determined in accordance with Section 3.4(c)). If the Adjustment Amount is a positive number, then the Merger Consideration shall be increased by the Adjustment Amount, but not below in no event shall the amount of such increase exceed $3,500,000, and if the Adjustment Amount is a negative number, then the Merger Consideration shall be decreased by the absolute value of the Adjustment Amount, but in no event shall the amount of such decrease exceed $3,500,000. The Adjustment Amount shall be paid in accordance with Section 3.4(e). (e) If the Adjustment Amount is a positive number, then, promptly following the Determination Date, and in any event within three (3) Business Days of the Determination Date, (x) Buyer shall pay to each Pre-Closing Holder an amount in cash equal to (i) such holder’s Fully-Diluted Percentage, multiplied by (ii) the Adjustment Amount, and (y) the Escrow Agent shall pay to each Pre-Closing Holder an amount in cash equal to (i) the Adjustment Escrow Amount, multiplied by (ii) such holder’s Fully-Diluted Percentage. If the Adjustment Amount is a negative number (the absolute value of such amount, the “Deficit Amount”), then, promptly following the Determination Date, and in any event within three (3) Business Days of the Determination Date, (x) the Escrow Agent shall pay, from the Adjustment Escrow Account, to Buyer an amount equal to the Deficit Amount, and (y) if any of the Adjustment Escrow Amount remains after such payment to Buyer, the Escrow Agent shall pay, from the Adjustment Escrow Account, to each Pre-Closing Holder an amount in cash equal to (i) the balance of the Adjustment Escrow Amount, multiplied by (ii) such holder’s Fully-Diluted Percentage. If the Adjustment Amount is zero, then, promptly following the Determination Date, and in any event within three (3) Business Days of the Determination Date, the Escrow Agent shall pay to each Pre-Closing Holder an amount in cash equal to (i) the Adjustment Escrow Amount, multiplied by current income(ii) such holder’s Fully-Diluted Percentage. Notwithstanding the foregoing, any amounts payable pursuant to this Section 3.4(e) with respect to In the Money Options shall be paid to the Surviving Company and the Surviving Company shall pay such amounts through its payroll system to the applicable Pre-Closing Holders. Upon determination of the Adjustment Amount pursuant to Section 3.4(c) and Section 3.4(d), each of Buyer and the Holder Representative shall execute joint written instructions to the Escrow Agent instructing the Escrow Agent to disburse the Adjustment Escrow Amount in accordance with this Section 3.4(e). In no event shall (i) the Holder Representative have any liability under this Section 3.4(e) or (ii) any Pre-Closing Holder have any liability under this Section 3.4(e) in excess of such holder’s allocable share of the Adjustment Escrow Amount. In no event shall Buyer be entitled to payment pursuant to this Section 3.4(e) of any amount in excess of the Adjustment Escrow Amount remaining in the Adjustment Escrow Account.