AMOUNT
(A)
THE "ADJUSTMENT AMOUNT" (WHICH MAY ONLY BE A POSITIVE NUMBER) WILL BE THE
AMOUNT EQUAL TO THE PRODUCT OF (I) TWO AND (II) THE ADJUSTMENT EBITDA LESS
$24,000,000; PROVIDED THAT SUCH AMOUNT MAY NOT EXCEED $5,000,000, AND IF SUCH
AMOUNT IS A NEGATIVE NUMBER, THE ADJUSTMENT AMOUNT SHALL BE ZERO.
(B)
AS PROMPTLY AS PRACTICABLE, BUT IN ANY EVENT WITHIN SIXTY (60) CALENDAR
DAYS FOLLOWING THE CLOSING DATE, PURCHASER SHALL DELIVER TO SELLERS THE AUDITED
BALANCE SHEET, TOGETHER WITH A CERTIFICATE OF PURCHASER CONTAINING A CALCULATION
OF THE ADJUSTMENT AMOUNT ON THE SAME BASIS AND APPLYING THE SAME ACCOUNTING
PRINCIPLES, INCLUDING GAAP, THAT WERE USED TO PREPARE THE REFERENCE BALANCE
SHEET.
IF WITHIN THIRTY (30) DAYS FOLLOWING DELIVERY OF THE AUDITED BALANCE
SHEET, NONE OF CROMPTON, THE BCCM AGENT OR THE MANAGEMENT MEMBERS' AGENT HAVE
GIVEN PURCHASER NOTICE OF AN OBJECTION TO THE AUDITED BALANCE SHEET (INCLUDING A
15
STATEMENT OF THE BASIS OF SUCH OBJECTION), THEN THE AUDITED BALANCE SHEET WILL
BE DETERMINATIVE IN COMPUTING THE ADJUSTMENT AMOUNT, BASED ON THE FORMULA SET
FORTH IN SECTION 3.6(A) HEREOF. IF ANY OF CROMPTON, THE BCCM AGENT OR THE
MANAGEMENT MEMBERS' AGENT GIVES SUCH NOTICE OF OBJECTION, CROMPTON, THE BCCM
AGENT, THE MANAGEMENT MEMBERS' AGENT AND PURCHASER SHALL ATTEMPT A GOOD FAITH
RESOLUTION OF THE DISPUTE.
IF NO SUCH RESOLUTION IS REACHED WITHIN A PERIOD OF
TWENTY (20) DAYS FROM SUCH OBJECTION, THEN THE ISSUES IN DISPUTE WILL BE
SUBMITTED TO THE ACCOUNTANTS FOR RESOLUTION. IF ISSUES IN DISPUTE ARE SUBMITTED
TO THE ACCOUNTANTS FOR RESOLUTION, (I) EACH PARTY WILL FURNISH TO THE
ACCOUNTANTS SUCH WORKPAPERS AND OTHER DOCUMENTS AND INFORMATION RELATING TO THE
DISPUTED ISSUES AS THE ACCOUNTANTS MAY REQUEST AND ARE AVAILABLE TO THAT PARTY
OR ITS SUBSIDIARIES (OR ITS INDEPENDENT PUBLIC ACCOUNTANTS), AND WILL BE
AFFORDED THE OPPORTUNITY TO PRESENT TO THE ACCOUNTANTS ANY MATERIAL RELATING TO
THE DETERMINATION AND TO DISCUSS THE DETERMINATION WITH THE ACCOUNTANTS; (II)
THE DETERMINATION BY THE ACCOUNTANTS, AS SET FORTH IN A NOTICE DELIVERED TO BOTH
PARTIES BY THE ACCOUNTANTS AS SOON AS PRACTICABLE FOLLOWING SUBMISSION OF SUCH
DISPUTE TO THE ACCOUNTANTS, WILL BE BINDING AND CONCLUSIVE ON THE PARTIES; AND
(III) SELLERS ON THE ONE HAND AND PURCHASER ON THE OTHER HAND WILL EACH BEAR
FIFTY PERCENT (50%) OF THE FEES OF THE ACCOUNTANTS FOR SUCH DETERMINATION.
(C)
PAYMENT OF ANY ADJUSTMENT AMOUNT THAT IS OWED BY PURCHASER TO SELLERS
PURSUANT TO THIS SECTION 3.6 SHALL BE MADE BY PURCHASER TO SELLERS, PRO RATA
BASED ON THEIR ADJUSTMENT PERCENTAGE AS FOLLOWS: (I) 50% OF THE ADJUSTMENT
AMOUNT SHALL BE PAID TO THE SELLERS ON THE TWELVE (12) MONTH ANNIVERSARY OF THE
CLOSING DATE, AND (II) 50% OF THE ADJUSTMENT AMOUNT SHALL BE PAID TO THE SELLERS
ON THE EIGHTEEN (18) MONTH ANNIVERSARY OF THE CLOSING DATE; PROVIDED THAT IF A
HOLDBACK ACCELERATION EVENT OCCURS, THE FULL AMOUNT OF THE ADJUSTMENT AMOUNT
SHALL BE PAID TO THE SELLERS ON THE TWELVE (12) MONTH ANNIVERSARY OF THE CLOSING
DATE (OR