PREDECESSOR) AND ITS SUBSIDIARIES AS OF THE CLOSE OF BUSINESS
ON DECEMBER 31, 2005, AND RELATED AUDITED CONSOLIDATED AND CONSOLIDATING
STATEMENTS OF INCOME OF THE COMPANY FOR SUCH CALENDAR YEAR, IN EACH CASE
TOGETHER WITH A STATEMENT OF THE ACCOUNTANTS BASED UPON SUCH REPORT WHICH (X)
STATES THAT IT WAS PREPARED IN ACCORDANCE WITH THIS AGREEMENT AND (Y) SETS FORTH
THE CALCULATION OF REVENUES AND ADDITIONAL PAYMENT PBT FOR CALENDAR YEAR 2005,
AND (Z) SETS FORTH ALL ADJUSTMENTS REQUIRED TO BE MADE TO SUCH AUDITED FINANCIAL
STATEMENTS IN ORDER TO MAKE THE CALCULATIONS REQUIRED UNDER THIS SECTION 2.2
(THE "2005 DETERMINATION").
THE ACCOUNTANTS SHALL DELIVER A COPY OF THE 2005
DETERMINATION TO ZYMAN NOT LATER THAN 120 DAYS AFTER DECEMBER 31, 2005.
THE
COMPANY SHALL PAY THE FEES AND EXPENSES OF THE ACCOUNTANT.
5
(II)
IF ZYMAN DOES NOT AGREE THAT THE 2005
DETERMINATION CORRECTLY STATES THE CALCULATION OF ADDITIONAL PAYMENT PBT AND
REVENUES FOR FISCAL YEAR 2005, ZYMAN SHALL, WITHIN 30 DAYS AFTER THE DELIVERY OF
SUCH 2005 DETERMINATION TO ZYMAN, GIVE WRITTEN NOTICE TO THE PURCHASER OF ANY
EXCEPTIONS THERETO (IN REASONABLE DETAIL DESCRIBING THE NATURE OF THE
DISAGREEMENT ASSERTED).
IF THE PURCHASER AND ZYMAN RECONCILE THEIR DIFFERENCES,
THE 2005 DETERMINATION SHALL BE ADJUSTED ACCORDINGLY AND SHALL THEREUPON BECOME
BINDING, FINAL AND CONCLUSIVE UPON ALL OF THE PARTIES HERETO AND ENFORCEABLE IN
A COURT OF LAW.
IF THE PURCHASER AND ZYMAN ARE UNABLE TO RECONCILE THEIR
DIFFERENCES IN WRITING WITHIN THE RECONCILIATION PERIOD, THE ITEMS IN DISPUTE
SHALL BE SUBMITTED TO THE INDEPENDENT AUDITORS FOR FINAL DETERMINATION, AND THE
2005 DETERMINATION SHALL BE DEEMED ADJUSTED IN ACCORDANCE WITH THE DETERMINATION
OF THE INDEPENDENT AUDITORS AND SHALL BECOME BINDING, FINAL AND CONCLUSIVE UPON
ALL OF THE PARTIES HERETO AND ENFORCEABLE IN A COURT OF LAW.
THE INDEPENDENT
AUDITORS SHALL CONSIDER ONLY THE ITEMS IN DISPUTE AND SHALL BE INSTRUCTED TO ACT
WITHIN 20 DAYS (OR SUCH LONGER PERIOD AS ZYMAN AND THE PURCHASER MAY AGREE) TO
RESOLVE ALL ITEMS IN DISPUTE.
IF ZYMAN DOES NOT GIVE WRITTEN NOTICE OF ANY
EXCEPTION WITHIN 30 DAYS AFTER THE DELIVERY OF THE 2005 DETERMINATION OR IF
ZYMAN GIVES WRITTEN NOTIFICATION OF ITS ACCEPTANCE OF THE 2005 DETERMINATION
PRIOR TO THE END OF SUCH 30 DAY PERIOD, SUCH 2005 DETERMINATION SHALL THEREUPON
BECOME BINDING, FINAL AND CONCLUSIVE UPON ALL THE PARTIES HERETO AND ENFORCEABLE
IN A COURT OF LAW.
(III)
IN THE EVENT THE INDEPENDENT AUDITORS ARE
FOR ANY REASON UNABLE OR UNWILLING TO PERFORM THE SERVICES REQUIRED OF IT UNDER
THIS SECTION 2.2.3, THEN THE PURCHASER AND ZYMAN AGREE TO SELECT ANOTHER
MUTUALLY ACCEPTABLE ACCOUNTING FIRM TO PERFORM THE SERVICES TO BE PERFORMED
UNDER THIS SECTION 2.2.3 BY THE INDEPENDENT AUDITORS.
IF THE PURCHASER AND
ZYMAN FAIL TO SELECT THE INDEPENDENT AUDITORS AS REQUIRED BY CLAUSE (I) ABOVE
WITHIN SEVEN DAYS AFTER THE EXPIRATION OF THE RECONCILIATION PERIOD OR FAIL TO
SELECT ANOTHER ACCOUNTING FIRM WITHIN SEVEN DAYS AFTER IT IS DETERMINED THAT THE
INDEPENDENT AUDITORS WILL NOT PERFORM THE SERVICES