THE ADJUSTMENTS TO THE
CLOSING NET WORKING CAPITAL STATEMENT WHICH THE SELLER BELIEVES SHOULD BE MADE,
AND THE SELLER'S CALCULATION OF THE CLOSING NET WORKING CAPITAL. THE SELLER
SHALL BE DEEMED TO HAVE ACCEPTED ANY ITEMS NOT SPECIFICALLY DISPUTED IN THE
OBJECTION. FAILURE BY THE SELLER TO DELIVER AN OBJECTION IN ACCORDANCE WITH THIS
CLAUSE 3.2.3 TO THE PURCHASER SHALL CONSTITUTE ACCEPTANCE AND APPROVAL BY THE
SELLER OF THE PURCHASER'S CALCULATION OF THE CLOSING NET WORKING CAPITAL.
27
CONFIDENTIAL TREATMENT
[***] Indicates that text has been omitted which is the subject of a
confidential treatment request. This text has been separately filed with the
SEC.
3.2.4
IF THE PURCHASER RECEIVES AN OBJECTION FROM THE SELLER, IT SHALL
HAVE 30 (THIRTY) DAYS FOLLOWING RECEIPT TO REVIEW AND RESPOND IN WRITING TO SUCH
OBJECTION (THE "RESPONSE"). DURING THE 20 (TWENTY) DAYS IMMEDIATELY FOLLOWING A
DELIVERY OF THE PURCHASER'S RESPONSE, THE SELLER AND THE PURCHASER SHALL SEEK IN
GOOD FAITH TO RESOLVE IN WRITING ANY DIFFERENCES WHICH THEY MAY HAVE WITH
RESPECT TO ANY MATTER SPECIFIED IN THE SELLER'S OBJECTION. IF THE SELLER AND THE
PURCHASER ARE UNABLE TO RESOLVE ALL OF SUCH DIFFERENCES WITHIN SUCH 20 (TWENTY)
DAY PERIOD, EITHER OR BOTH PARTIES MAY REFER THE REMAINING DIFFERENCES TO KPMG
LLP OR ANOTHER INTERNATIONALLY OR NATIONALLY RECOGNIZED FIRM OF INDEPENDENT
PUBLIC ACCOUNTANTS AS TO WHICH THE SELLER AND THE PURCHASER MUTUALLY AGREE IN
WRITING (THE "ACCOUNTING FIRM") FOR REVIEW AND RESOLUTION OF ALL MATTERS WHICH
REMAIN IN DISPUTE AND WHICH WERE INDICATED IN THE SELLER'S OBJECTION. THE
ACCOUNTING FIRM SHALL ACT AS AN EXPERT IN ACCOUNTING AND NOT AS AN ARBITRATOR
AND SHALL DETERMINE ON A BASIS CONSISTENT WITH THE REQUIREMENTS SET FORTH IN
CLAUSE 3.2.2, AND ONLY WITH RESPECT TO THE SPECIFIC REMAINING ACCOUNTING RELATED
DIFFERENCES SO SUBMITTED, WHETHER AND TO WHAT EXTENT, IF ANY, THE CLOSING NET
WORKING CAPITAL STATEMENT REQUIRES ANY ADJUSTMENTS. THE SELLER AND THE PURCHASER
SHALL REQUEST THE ACCOUNTING FIRM TO USE ITS REASONABLE BEST EFFORTS TO RENDER
ITS DETERMINATION WITHIN 30 (THIRTY) DAYS. THE ACCOUNTING FIRM'S DETERMINATION
SHALL BE CONCLUSIVE AND BINDING UPON THE SELLER AND THE PURCHASER. SUBJECT TO
THE EXECUTION OF A CONFIDENTIALITY AGREEMENT BY THE ACCOUNTING FIRM ON TERMS AND
CONDITIONS REASONABLY ACCEPTABLE TO THE PARTIES, THE SELLER AND THE PURCHASER
SHALL MAKE AVAILABLE TO THE ACCOUNTING FIRM ALL RELEVANT PERSONNEL, BOOKS AND
RECORDS, ANY WORKING PAPERS (INCLUDING THOSE OF THE PARTIES' RESPECTIVE
ACCOUNTANTS) AND SUPPORTING DOCUMENTATION RELATING TO THE CLOSING NET WORKING
CAPITAL STATEMENT AND ALL OTHER ITEMS AND SUPPORT REASONABLY REQUESTED BY THE
ACCOUNTING FIRM. THE FEES AND EXPENSES OF THE ACCOUNTING FIRM SHALL BE SHARED
EQUALLY BETWEEN THE SELLER AND THE PURCHASER.
3.2.5
THE "FINAL STATEMENT OF CLOSING NET WORKING CAPITAL" SHALL BE THE
CALCULATION OF THE CLOSING NET WORKING CAPITAL CONTAINED: (A) IN THE CLOSING NET
WORKING CAPITAL STATEMENT IN THE EVENT THAT, (I) NO OBJECTION IS DELIVERED BY
THE SELLER TO THE PURCHASER WITHIN THE 30 (THIRTY) DAY PERIOD SPECIFIED IN
CLAUSE 3.2.3, OR (II) THE SELLER