Common use of Post-Closing Determination Clause in Contracts

Post-Closing Determination. (a) Within 60 days after the Closing Date, Buyer shall prepare, or cause to be prepared, and deliver to Seller a written statement (the “Closing Statement”) that shall include Buyer’s good faith calculation of the Net Adjustment Amount and a good faith calculation (including reasonably detailed supporting calculations) of each of the following, in each case, calculated in accordance with the terms and definitions provided in this Agreement, including the Accounting Principles, and derived from, and properly reflecting, the Books and Records to the extent such Books and Records are complete and accurate: (i) the Closing Company Transaction Expenses; (ii) the Closing Funded Indebtedness; (iii) the Closing Cash on Hand; and (iv) the Closing Working Capital; provided, that if Buyer fails to timely deliver the Closing Statement, then the Parties acknowledge and agree that at the election of Seller in its sole discretion, either: (A) the Net Adjustment Amount shall be deemed to equal zero; or (B) Seller shall retain (at the expense of Buyer) an independent accounting firm of national reputation to (1) provide an audit or other review of the Acquired Companies’ financial books, records and ledgers and review the calculation of the Estimated Closing Company Transaction Expenses, the Estimated Closing Funded Indebtedness, the Estimated Closing Cash on Hand and the Estimated Closing Working Capital and (2) following such independent accounting firm’s audit or other review, deliver a written statement to the Parties that shall include such independent accounting firm’s good faith calculation and determination of the Net Adjustment Amount and a good faith calculation (including reasonably detailed supporting calculations) of each of the Closing Company Transaction Expenses, the Closing Funded Indebtedness, the Closing Cash on Hand and the Closing Working Capital, in each case, calculated in accordance with the terms and definitions provided in this Agreement, including the Accounting Principles, which calculations and determinations by such independent accounting firm shall be final, binding and non-appealable on the Parties absent manifest error, fraud or manifest disregard for the provisions of this Section 2.1(a) (and in the event of such manifest error or disregard, the written determination shall be referred back to such independent accounting firm to correct the same).

Post-Closing Determination. (a) Within 60 90 days after the Closing Date, the Buyer shall prepare, or cause to be prepared, and deliver to Seller a written statement (the “Closing Statement”) that shall include Buyer’s good faith calculation of the Net Adjustment Amount and a good faith calculation (including reasonably detailed supporting calculations) of each of the followingStockholders’ Representative, in each case, calculated in accordance with the terms and definitions provided in this Agreement, including the Accounting Principles, and derived from, and properly reflecting, the Books and Records to the extent such Books and Records are complete and accurate: (i) the Closing Company Transaction Expenses; Buyer’s determinations of the Cash Amount, the Indebtedness Payoff Amount, the Management Note Payoff Amount and the Net Working Capital Amount, and (ii) the Closing Funded Indebtedness; Buyer’s calculation of the Actual Common Purchase Price (iii) collectively, the Closing “Draft Computation”). The Draft Computation shall be prepared and the Cash Amount, the Indebtedness Payoff Amount, and the Net Working Capital Amount shall be determined on Hand; a consolidated basis in accordance with GAAP applied in a manner consistent with the accounting methods, policies, principles, practices and procedures, with consistent classifications, judgments and estimation methodology, as were used in preparation of the audited consolidated balance sheet of the Company and its Subsidiaries as of the fiscal year ended December 31, 2006 (iv) the Closing “2006 Balance Sheet”), and shall not include any changes in assets or liabilities as a result of purchase or other similar accounting adjustments arising from or resulting as a consequence of the transactions contemplated hereby. The parties agree that the purpose of preparing the Draft Computation and determining the Cash Amount, the Indebtedness Payoff Amount, and the Net Working Capital Amount and the related purchase price adjustment contemplated by this Section 2.04 is to measure the amount of Cash and Indebtedness and changes in Net Working Capital; provided, and such processes are not intended to permit the introduction of different judgments, accounting methods, policies, principles, practices, procedures, classifications or estimation methodologies for the purpose of preparing the Draft Computation or determining Cash, Indebtedness or Net Working Capital. The Buyer and its auditors will upon request make available to the Stockholders’ Representative and its auditors reasonable access to all records and work papers used in preparing the Draft Computation, and to its employees and advisors, provided that if such access shall be upon reasonable notice and at reasonable times so as not to interfere unduly with the business of the Buyer, the Company, and their Subsidiaries. If the Stockholders’ Representative disagrees with any aspect of the Draft Computation, the Stockholders’ Representative may, within 60 days after receipt of the Draft Computation, deliver a notice (an “Objection Notice”) to the Buyer fails setting forth the Stockholders’ Representative’s determination of the Cash Amount, the Indebtedness Payoff Amount, the Management Note Payoff Amount and/or the Net Working Capital Amount and the Stockholders’ Representative’s calculation of the Actual Common Purchase Price, and identifying the specific items and amounts of disagreement. The Stockholders’ Representative and its auditors will upon request make available to timely the Buyer and its auditors reasonable access to all records and work papers used in preparing the Objection Notice, and to its employees and advisors, provided that such access shall be upon reasonable notice and at reasonable times so as not to interfere unduly with the business of the Stockholders’ Representative. If the Stockholders’ Representative does not deliver an Objection Notice to the Closing StatementBuyer within 60 days after receipt of the Draft Computation, then the Parties acknowledge parties hereto will be deemed to have agreed to the Draft Computation and agree that at the election components of Seller in its sole discretion, either: (A) the Net Adjustment Amount such Draft Computation shall be deemed to equal zero; or (B) Seller be finally determined as set forth therein. The Buyer and the Stockholders’ Representative shall retain (at use reasonable efforts to resolve any disagreements as to the expense of Buyer) an independent accounting firm of national reputation to (1) provide an audit or other review of Draft Computation and the Acquired Companies’ financial booksObjection Notice, records and ledgers and review but if they do not obtain a final resolution within 60 days after the calculation of Buyer has received the Estimated Closing Company Transaction ExpensesObjection Notice, the Estimated Closing Funded IndebtednessBuyer and the Stockholders’ Representative shall jointly retain BDO Xxxxxxx LLP (the “Firm”) to resolve any remaining disagreements. The Buyer and the Stockholders’ Representative shall direct the Firm to render a determination within 30 days after its retention and the Buyer, the Estimated Closing Cash on Hand Stockholders’ Representative and their respective agents shall cooperate with the Firm during its engagement. The Firm may consider only those items and amounts in the Draft Computation or Objection Notice which the Buyer and the Estimated Closing Working Capital Stockholders’ Representative are unable to resolve. In resolving any disputed item, the Firm may not assign a value to any item 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 Firm’s determination shall be based solely on written submissions by the Buyer and the Stockholders’ Representative (2i.e., not on independent review) following such independent accounting firm’s audit or other review, deliver a written statement to and on the Parties that shall include such independent accounting firm’s good faith calculation and definitions included herein. The determination of the Net Adjustment Amount Firm shall be conclusive and a good faith calculation binding upon the Buyer, the Stockholders’ Representative and the Stockholders (including reasonably detailed supporting calculations) of each absent manifest error). Until the Firm makes its determination, the costs and expenses of the Closing Company Transaction ExpensesFirm shall be borne equally by the Buyer, on the Closing Funded Indebtednessone hand, the Closing Cash on Hand and the Closing Working Capital, in each case, calculated Stockholders’ Representative (on behalf of the Stockholders in accordance with their respective Allocation Percentages), on the terms other hand; provided that, when the Firm makes its determination, the costs and definitions provided in this Agreement, expenses (including the Accounting Principlescosts and expenses previously advanced) of the Firm shall be borne by Buyer, on the one hand, and the Stockholders’ Representative, on the other hand (on behalf of the Stockholders in accordance with their respective Allocation Percentages), based on the percentage which calculations and determinations the portion of the contested amount not awarded to each party bears to the amount actually contested by such independent accounting firm party. The Firm shall be final, binding and non-appealable determine the allocation of costs based on the Parties absent manifest errorforegoing sentence and xxxx the parties for its fees and expenses accordingly. For example, fraud or manifest disregard for if closing accounts receivable is the provisions only disputed item, and Buyer claims that closing accounts receivable is $1,000 less than the amount determined by the Stockholders’ Representative, and the Stockholders’ Representative and Buyer contest only $500 of this Section 2.1(athe amount claimed by Buyer, and if the Firm ultimately resolves the dispute by awarding Buyer $300 of the $500 contested, then the costs and expenses of the Firm will be allocated 60% (i.e., 300 ÷ 500) to the Stockholders’ Representative and 40% (and in the event of such manifest error or disregardi.e., the written determination shall be referred back 200 ÷ 500) to such independent accounting firm to correct the same)Buyer.

Post-Closing Determination. Within forty-five (a45) Within 60 days after the Closing Date, the Buyer and its auditors shall prepare, or cause to be prepared, prepare and deliver to Seller a written statement (the “Closing Statement”) that shall include Buyer’s good faith calculation of the Net Adjustment Amount and a good faith calculation (including reasonably detailed supporting calculations) of each of the following, in each case, calculated in accordance with the terms and definitions provided in this Agreement, including the Accounting Principles, and derived from, and properly reflecting, the Books and Records to the extent such Books and Records are complete and accurate: Securityholder Representative (i) the Closing Company Transaction Expenses; Buyer’s determinations of the Cash Amount, the Indebtedness Amount, and the Net Working Capital Amount, and (ii) the Closing Funded Indebtedness; Buyer’s calculation of the Purchase Price (iii) collectively, the Closing “Draft Computation”). The Draft Computation shall be prepared and the Cash Amount, the Indebtedness Amount, and the Net Working Capital Amount shall be determined on Hand; a consolidated basis using the same accounting methods, policies, principles, practices and (iv) procedures, with consistent classifications, judgments and estimation methodology, as were used in preparation of the Closing Latest Balance Sheet or, to the extent applicable, in accordance with any changes to such accounting methods, policies, principles, practices and procedures which are documented in the Company’s books and records prior to the Closing, and shall not include any changes in assets or liabilities as a result of purchase or other non-cash accounting adjustments or other changes arising from or resulting as a consequence of the transactions contemplated hereby. The parties agree that the purpose of preparing the Draft Computation and determining the Cash Amount, the Indebtedness Amount, and the Net Working Capital Amount and the related purchase price adjustment contemplated by this Section 2.04 is to measure the amount of Cash and Indebtedness and changes in Net Working Capital, and such processes are not intended to permit the introduction of different judgments, accounting methods, policies, principles, practices, procedures, classifications or estimation methodologies for the purpose of preparing the Draft Computation or determining Cash, Indebtedness or Net Working Capital. The Company and its auditors will make available to the Buyer and its auditors, employees and advisors all records and work papers used in preparing the Estimated Purchase Price. The Buyer and its auditors will make available to the Securityholder Representative and its auditors, employees and advisors all records and work papers used in preparing the Draft Computation and will prepare and deliver to the Securityholder Representative a detailed analysis of the changes behind any material variance(s) between the Buyer’s determination of the Cash Amount, the Indebtedness Amount and the Net Working Capital Amount, and the corresponding estimates of such amounts as determined by the Company pursuant to Section 2.01 hereof. If the Securityholder Representative disagrees with any aspect of the Draft Computation, the Securityholder Representative may, within forty-five (45) days after receipt of the Draft Computation, deliver a notice (an “Objection Notice”) to the Buyer setting forth the Securityholder Representative’s determination of the Cash Amount, the Indebtedness Amount, and/or the Net Working Capital Amount and the Securityholder Representative’s calculation of the Purchase Price. If the Securityholder Representative does not deliver an Objection Notice to the Buyer within forty-five (45) days after receipt of the Draft Computation, then the parties hereto will be deemed to have agreed to the Draft Computation and the components of such Draft Computation shall be deemed to be finally determined as set forth therein. The Buyer and the Securityholder Representative shall use reasonable efforts to resolve any disagreements as to the Draft Computation and the Objection Notice, but if they do not obtain a final resolution within forty-five (45) days after the Buyer has received the Objection Notice, the Buyer and the Securityholder Representative shall jointly retain Xxxxx Xxxxxxxx LLP or such other accounting firm acceptable to the Buyer and the Securityholder Representative (the “Firm”) to resolve any remaining disagreements. The Buyer and the Securityholder Representative shall direct the Firm to render a determination within thirty (30) days after its retention and the Buyer, the Securityholder Representative and their respective agents shall cooperate with the Firm during its engagement. The Firm will act as an expert and not as an arbitrator in conducting its analysis and may consider only those items and amounts in the Draft Computation or Objection Notice which the Buyer and the Securityholder Representative are unable to resolve. In resolving any disputed item, the Firm may not assign a value to any item 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 Firm’s determination shall be based solely on written submissions by the Buyer and the Securityholder Representative (i.e., not on independent review) and on the definitions included herein. The determination of the Firm shall be conclusive and binding upon the Buyer, the Securityholder Representative and the Securityholders. Until the Firm makes its determination, the costs and expenses of the Firm shall be borne equally by the Buyer, on the one hand, and the Securityholder Representative (on behalf of the Securityholders in accordance with their respective Securityholder Allocation Percentages), on the other hand; provided, that when the Firm makes its determination, any costs and expenses (including costs and expenses previously advanced) shall be allocated between the Securityholder Representative (on behalf of the Securityholders in accordance with their respective Securityholder Allocation Percentages), on the one hand, and the Buyer, on the other hand, based upon the percentage that the portion of the contested amount not awarded to each party bears to the amount actually contested by such party. For example, if the Securityholder Representative claims the Net Working Capital Amount is $1,000 greater than the amount determined by the Buyer, and the Buyer fails to timely deliver contests only $500 of the Closing Statementamount claimed by the Securityholder Representative, and if the Firm ultimately resolves the dispute by awarding the Securityholders $300 of the $500 contested, then the Parties acknowledge costs and agree that at the election of Seller in its sole discretion, either: (A) the Net Adjustment Amount shall be deemed to equal zero; or (B) Seller shall retain (at the expense of Buyer) an independent accounting firm of national reputation to (1) provide an audit or other review expenses of the Acquired Companies’ financial booksFirm will be allocated 60% (i.e., records 300 ÷ 500) to the Buyer and ledgers and review 40% (i.e., 200 ÷ 500) to the calculation Securityholder Representative (on behalf of the Estimated Closing Company Transaction Expenses, the Estimated Closing Funded Indebtedness, the Estimated Closing Cash on Hand and the Estimated Closing Working Capital and (2) following such independent accounting firm’s audit or other review, deliver a written statement to the Parties that shall include such independent accounting firm’s good faith calculation and determination of the Net Adjustment Amount and a good faith calculation (including reasonably detailed supporting calculations) of each of the Closing Company Transaction Expenses, the Closing Funded Indebtedness, the Closing Cash on Hand and the Closing Working Capital, in each case, calculated Securityholders in accordance with the terms and definitions provided in this Agreement, including the Accounting Principles, which calculations and determinations by such independent accounting firm shall be final, binding and non-appealable on the Parties absent manifest error, fraud or manifest disregard for the provisions of this Section 2.1(a) (and in the event of such manifest error or disregard, the written determination shall be referred back to such independent accounting firm to correct the sametheir respective Securityholder Allocation Percentages).

Post-Closing Determination. (a) Within 60 ninety (90) calendar days after the Closing Date, Buyer shall prepare, or cause to be prepared, Purchaser will conduct a review of the Estimated Statement and will prepare and deliver to Seller the Sellers’ Representative a written statement (the “Closing Statement”) that shall include Buyer’s good faith setting forth in reasonable detail (i) its calculation of the Net Adjustment Amount actual Closing Working Capital, Closing Indebtedness, Transaction Expenses and a good faith Closing Cash, (ii) Purchaser’s calculation (including reasonably detailed supporting calculations) of each of the followingactual Cash Consideration as a result of the calculations described in the foregoing clause (i), in each case(iii) work sheets or other reasonable supporting documentation showing the calculation of such estimates, calculated and (iv) a consolidated balance sheet of the Companies as of the Calculation Time. The Closing Statement shall be prepared in accordance with the terms and definitions provided in this Agreement, including GAAP or the Accounting Principles, and derived from, and properly reflecting, as applicable. The parties agree that the Books and Records to the extent such Books and Records are complete and accurate: (i) purpose of preparing the Closing Company Transaction Expenses; (ii) Statement and determining the Closing Funded Indebtedness; (iii) the Closing Cash on Hand; and (iv) the amount of Closing Working Capital; provided, that if Buyer fails Closing Indebtedness, Transaction Expenses and Closing Cash is to timely deliver measure changes in the amount of Closing Working Capital, Closing Indebtedness, Transaction Expenses and Closing Cash, and such processes are not intended to permit the introduction of different judgments, accounting methods, policies, principles, practices, procedures, classifications or estimation methodologies for the purpose of preparing the Closing Statement or determining the amount of Closing Working Capital, Closing Indebtedness, Transaction Expenses and Closing Cash. During the Seller’s Representative’s review of the Closing Statement, then Sellers’ Representative and/or its Agents shall have reasonable access to the Parties acknowledge books and agree records of the Companies, the personnel of, and work papers prepared by, Purchaser and/or Purchaser’s Agents to the extent that at they relate to the election Closing Statement as Sellers’ Representative and/or its Agents may reasonably request for the purpose of Seller in its sole discretionreviewing the Closing Statement and to prepare an Objection Notice (defined below), either: (A) the Net Adjustment Amount provided, that such access shall be deemed to equal zero; or (B) Seller shall retain (at the expense of Buyer) an independent accounting firm of national reputation to (1) provide an audit or other review of the Acquired Companies’ financial books, records and ledgers and review the calculation of the Estimated Closing Company Transaction Expenses, the Estimated Closing Funded Indebtedness, the Estimated Closing Cash on Hand and the Estimated Closing Working Capital and (2) following such independent accounting firm’s audit or other review, deliver in a written statement to the Parties manner that shall include such independent accounting firm’s good faith calculation and determination of the Net Adjustment Amount and a good faith calculation (including reasonably detailed supporting calculations) of each of the Closing Company Transaction Expenses, the Closing Funded Indebtedness, the Closing Cash on Hand and the Closing Working Capital, in each case, calculated in accordance does not interfere with the terms and definitions provided in this Agreement, including normal business operations of Purchaser or the Accounting Principles, which calculations and determinations by such independent accounting firm shall be final, binding and non-appealable on the Parties absent manifest error, fraud or manifest disregard for the provisions of this Section 2.1(a) (and in the event of such manifest error or disregard, the written determination shall be referred back to such independent accounting firm to correct the same)Companies.