SUBMIT ALL UNRESOLVED DISPUTED ITEMS (COLLECTIVELY,
THE "UNRESOLVED ITEMS") TO ERNST & YOUNG LLP (THE "INDEPENDENT ACCOUNTANTS") TO
REVIEW AND RESOLVE SUCH MATTERS AND EACH WILL SPECIFY TO THE OTHER AND TO THE
INDEPENDENT ACCOUNTANT ITS DETERMINATION OF THE AMOUNT OF THE
4
PURCHASE PRICE (A PARTY'S "PROPOSED PRICE").
THE INDEPENDENT ACCOUNTANTS WILL
DETERMINE EACH UNRESOLVED ITEM IN ACCORDANCE WITH THIS SECTION 1.5(C) AND
SECTION 1.5(E) AS PROMPTLY AS MAY BE REASONABLY PRACTICABLE, AND PURCHASER AND
PARENT SHALL INSTRUCT THE INDEPENDENT ACCOUNTANTS TO ENDEAVOR TO COMPLETE SUCH
PROCESS WITHIN A PERIOD OF NO MORE THAN 60 DAYS.
THE INDEPENDENT ACCOUNTANTS
MAY CONDUCT SUCH PROCEEDINGS AS THE INDEPENDENT ACCOUNTANTS BELIEVE, IN THEIR
SOLE DISCRETION, WILL ASSIST IN THE DETERMINATION OF THE UNRESOLVED ITEMS;
PROVIDED THAT, EXCEPT AS PURCHASER AND PARENT MAY OTHERWISE AGREE IN WRITING,
ALL COMMUNICATIONS BETWEEN PURCHASER AND PARENT OR ANY OF THEIR RESPECTIVE
REPRESENTATIVES, ON THE ONE HAND, AND THE INDEPENDENT ACCOUNTANTS, ON THE OTHER
HAND, SHALL BE IN WRITING WITH COPIES SIMULTANEOUSLY DELIVERED TO THE
NON-COMMUNICATING PARTY.
THE INDEPENDENT ACCOUNTANTS' DETERMINATION OF THE
UNRESOLVED ITEMS SHALL BE FINAL, BINDING AND CONCLUSIVE ON PURCHASER AND
SELLERS, EFFECTIVE AS OF THE DATE THE INDEPENDENT ACCOUNTANTS' WRITTEN
DETERMINATION IS RECEIVED BY PURCHASER AND PARENT.
THE FEES AND EXPENSES OF THE
INDEPENDENT ACCOUNTANTS SHALL BE BORNE AS FOLLOWS:
(X) BY PARENT, IN A PORTION
EQUAL TO A FRACTION, THE NUMERATOR OF WHICH IS THE ABSOLUTE DIFFERENCE BETWEEN
PARENT'S PROPOSED PRICE AND THE PURCHASE PRICE DETERMINED BY THE INDEPENDENT
ACCOUNTANTS AND THE DENOMINATOR OF WHICH IS THE ABSOLUTE DIFFERENCE BETWEEN
PARENT'S PROPOSED PRICE AND THE PURCHASER'S PROPOSED PRICE, AND (Y) BY
PURCHASER, IN A PORTION EQUAL TO ONE (1) MINUS THE FRACTION DESCRIBED IN THE
PRECEDING CLAUSE (X).
(D)
WITHIN FIVE (5) BUSINESS DAYS AFTER THE FINAL DETERMINATION OF THE
PURCHASE PRICE PURSUANT TO SECTION 1.5(B) OR SECTION 1.5(C) (THE "FINAL PURCHASE
PRICE"), EITHER (I) IF THE ESTIMATED PURCHASE PRICE EXCEEDS THE FINAL PURCHASE
PRICE, THEN PARENT WILL PAY TO PURCHASER THE AMOUNT OF SUCH EXCESS, OR (II) IF
THE FINAL PURCHASE PRICE EXCEEDS THE ESTIMATED PURCHASE PRICE, THEN PURCHASER
WILL PAY TO PARENT THE AMOUNT OF SUCH EXCESS.
ANY PAYMENT TO BE MADE PURSUANT
TO THIS SECTION 1.5(D) WILL BE MADE BY WIRE TRANSFER OF IMMEDIATELY AVAILABLE
FUNDS TO AN ACCOUNT SPECIFIED BY THE PARTY TO RECEIVE SUCH PAYMENT.
(E)
FOR THE PURPOSES OF THIS AGREEMENT, EACH ACCOUNTING TERM WILL HAVE THE
MEANING THAT IS APPLIED THERETO IN ACCORDANCE WITH UNITED STATES GENERALLY
ACCEPTED ACCOUNTING PRINCIPLES ("GAAP") AS IN EFFECT ON DECEMBER 31, 2006 AND,
TO THE EXTENT CONSISTENT WITH GAAP AS IN EFFECT ON DECEMBER 31, 2006, THE
ACCOUNTING PRINCIPLES, POLICIES, PROCEDURES AND METHODOLOGIES APPLIED IN
PREPARING THE BALANCE SHEET THAT IS PART OF THE AUDITED FINANCIAL STATEMENTS AND
THE ACCOMPANYING STATEMENT OF INCOME.
EACH ACCOUNT INCLUDED IN THE CLOSING
STATEMENT AND THE CLOSING BALANCE SHEET SHALL BE (I) CALCULATED IN ACCORDANCE
WITH GAAP AS IN EFFECT ON DECEMBER 31, 2006, AND, TO THE EXTENT CONSISTENT WITH
GAAP AS