REASONABLY DETAILED COMPUTATION OF 2007 EBITDA OR 2007/2008
EBITDA, AS APPLICABLE. FOLLOWING EACH MEASUREMENT PERIOD, THE STOCKHOLDERS'
REPRESENTATIVE AND/OR A FIRM OF INDEPENDENT PUBLIC ACCOUNTANTS DESIGNATED BY THE
STOCKHOLDERS' REPRESENTATIVE (THE "STOCKHOLDERS' REPRESENTATIVE ACCOUNTANT"), AT
THE STOCKHOLDERS' EXPENSE, WILL BE ENTITLED TO REASONABLE ACCESS DURING NORMAL
BUSINESS HOURS TO THE RECORDS AND WORKING PAPERS RELEVANT TO THE PREPARATION OF
THE CONTINGENT PAYMENT REPORT AND TO SUCH PERSONNEL OF HARBOR AS THE
STOCKHOLDERS' REPRESENTATIVE MAY REASONABLY REQUEST; PROVIDED THAT SUCH ACCESS
IS SCHEDULED IN ADVANCE. THE PARTIES MAY AGREE TO SCHEDULE SUCH ACCESS AT OTHER
TIMES IN ORDER TO MINIMIZE THE DISRUPTION TO HARBOR'S OPERATIONS. THE CONTINGENT
PAYMENT REPORT WILL BE DEEMED TO BE ACCEPTED BY AND SHALL BE CONCLUSIVE FOR
PURPOSES OF DETERMINING ANY CONTINGENT PAYMENT EXCEPT TO THE EXTENT, IF ANY,
THAT THE STOCKHOLDERS' REPRESENTATIVE, OR THE
7
STOCKHOLDERS' REPRESENTATIVE ACCOUNTANT ON BEHALF OF THE STOCKHOLDERS'
REPRESENTATIVE, SHALL HAVE DELIVERED WITHIN THIRTY (30) DAYS AFTER THE DATE ON
WHICH THE CONTINGENT PAYMENT REPORT IS DELIVERED TO THE STOCKHOLDERS'
REPRESENTATIVE, A WRITTEN NOTICE TO HARBOR STATING EACH AND EVERY ITEM TO WHICH
THE STOCKHOLDERS' REPRESENTATIVE TAKES EXCEPTION, SPECIFYING IN REASONABLE
DETAIL THE NATURE AND EXTENT OF EACH SUCH EXCEPTION (IT BEING UNDERSTOOD THAT
ANY AMOUNTS RELATING TO CONTINGENT PAYMENTS NOT DISPUTED SHALL BE PAID
PROMPTLY). IF A CHANGE PROPOSED BY THE STOCKHOLDERS' REPRESENTATIVE IS DISPUTED
BY HARBOR, THEN THE STOCKHOLDERS' REPRESENTATIVE AND HARBOR SHALL NEGOTIATE IN
GOOD FAITH TO RESOLVE SUCH DISPUTE. IF, AFTER A PERIOD OF TWENTY (20) DAYS
FOLLOWING THE DATE ON WHICH THE STOCKHOLDERS' REPRESENTATIVE GIVES HARBOR NOTICE
OF ANY SUCH PROPOSED CHANGE, HARBOR AND THE STOCKHOLDERS' REPRESENTATIVE CANNOT
AGREE ON ANY SUCH PROPOSED CHANGE, HARBOR AND THE STOCKHOLDERS' REPRESENTATIVE
SHALL SELECT AN INDEPENDENT ACCOUNTING FIRM MUTUALLY SATISFACTORY TO HARBOR AND
THE STOCKHOLDERS' REPRESENTATIVE TO RESOLVE SUCH DISPUTE (THE "NEUTRAL
AUDITOR"). THE NEUTRAL AUDITOR SHALL REVIEW THE CALCULATIONS OF THE CONTINGENT
PAYMENT AND, WITHIN SIXTY (60) DAYS OF ITS APPOINTMENT, SHALL MAKE ANY
ADJUSTMENTS NECESSARY THERETO, AND, UPON COMPLETION OF SUCH REVIEW, THE
DETERMINATION OF THE NEUTRAL AUDITOR SHALL BE BINDING UPON THE PARTIES. THE FEES
AND EXPENSES ASSOCIATED WITH SUCH A REVIEW SHALL BE BORNE EQUALLY BY HARBOR AND
THE STOCKHOLDERS.
1.6
WORKING CAPITAL ADJUSTMENT TO PURCHASE
PRICE.(A)
PRIOR TO THE CLOSING DATE, THE COMPANY SHALL IN GOOD FAITH
PREPARE, WITH THE ASSISTANCE OF HARBOR, AN ESTIMATED BALANCE SHEET OF THE
COMPANY AS OF THE CLOSING DATE (THE "ESTIMATED CLOSING DATE BALANCE SHEET"). THE
ESTIMATED CLOSING DATE BALANCE SHEET SHALL BE PREPARED IN ACCORDANCE WITH GAAP
(AS DEFINED IN SECTION 9.12) CONSISTENTLY APPLIED, AND OTHERWISE CONSISTENT WITH
THE METHODOLOGY DESCRIBED IN SECTION 1.6 OF THE DISCLOSURE SCHEDULE. NOT LATER
THAN FIVE (5) BUSINESS DAYS PRIOR TO THE CLOSING DATE, THE COMPANY SHALL DELIVER
TO HARBOR THE ESTIMATED CLOSING DATE BALANCE SHEET, TOGETHER WITH WORKSHEETS AND
DATA THAT SUPPORT THE ESTIMATED CLOSING DATE BALANCE SHEET AND ANY OTHER
INFORMATION THAT HARBOR MAY REASONABLY REQUEST IN ORDER TO VERIFY THE AMOUNTS
REFLECTED ON THE ESTIMATED CLOSING DATE