PURCHASER A STATEMENT SETTING FORTH THE
FINAL CALCULATION OF THE ADJUSTED PURCHASE PRICE AND SHOWING THE CALCULATION OF
EACH ADJUSTMENT, BASED, TO THE EXTENT POSSIBLE ON ACTUAL CREDITS, CHARGES,
RECEIPTS AND OTHER ITEMS ATTRIBUTABLE TO THE PERIOD OF TIME FROM AND AFTER THE
EFFECTIVE TIME (TOGETHER WITH REASONABLE BACK-UP AND SUPPORT INFORMATION FOR
SUCH STATEMENT).
AS SOON AS REASONABLY PRACTICABLE BUT NOT LATER THAN THE
THIRTIETH (30TH) DAY FOLLOWING RECEIPT OF SELLER'S STATEMENT HEREUNDER,
PURCHASER SHALL DELIVER TO SELLER A WRITTEN REPORT CONTAINING ANY CHANGES THAT
PURCHASER PROPOSES BE MADE TO SUCH STATEMENT.
THE PARTIES SHALL UNDERTAKE TO
AGREE ON THE FINAL STATEMENT OF THE ADJUSTED PURCHASE PRICE NO LATER THAN ONE
HUNDRED AND EIGHTY (180) DAYS AFTER THE CLOSING DATE.
IN THE EVENT THAT THE
PARTIES CANNOT REACH AGREEMENT WITHIN SUCH PERIOD OF TIME, EITHER PARTY MAY
REFER THE REMAINING MATTERS IN DISPUTE TO ERNST & YOUNG LLP, OR IF ERNST & YOUNG
LLP IS UNABLE OR UNWILLING TO PERFORM UNDER THIS SECTION 8.4(B), SUCH OTHER
NATIONALLY-RECOGNIZED INDEPENDENT ACCOUNTING FIRM AS MAY BE ACCEPTED BY
PURCHASER AND SELLER, FOR REVIEW AND FINAL DETERMINATION.
THE ACCOUNTING FIRM
SHALL CONDUCT THE ARBITRATION PROCEEDINGS IN PITTSBURGH, PENNSYLVANIA IN
ACCORDANCE WITH THE COMMERCIAL ARBITRATION RULES OF THE AMERICAN ARBITRATION
ASSOCIATION IN EFFECT AS OF THE
39
DATE HEREOF, TO THE EXTENT SUCH RULES DO NOT CONFLICT WITH THE TERMS OF THIS
SECTION 8.4(B).
THE ACCOUNTING FIRM'S DETERMINATION SHALL BE MADE WITHIN THIRTY
(30) DAYS AFTER SUBMISSION OF THE MATTERS IN DISPUTE AND SHALL BE FINAL AND
BINDING ON BOTH PARTIES, WITHOUT RIGHT OF APPEAL.
IN DETERMINING THE PROPER
AMOUNT OF ANY ADJUSTMENT TO THE PURCHASE PRICE, THE ACCOUNTING FIRM SHALL NOT
INCREASE THE PURCHASE PRICE MORE THAN THE INCREASE PROPOSED BY SELLER NOR
DECREASE THE PURCHASE PRICE MORE THAN THE DECREASE PROPOSED BY PURCHASER, AS
APPLICABLE.
THE ACCOUNTING FIRM SHALL ACT AS AN EXPERT FOR THE LIMITED PURPOSE
OF DETERMINING THE SPECIFIC DISPUTED MATTERS SUBMITTED BY EITHER PARTY AND MAY
NOT AWARD DAMAGES OR PENALTIES TO EITHER PARTY WITH RESPECT TO ANY MATTER.
SELLER AND PURCHASER SHALL EACH BEAR ITS OWN LEGAL FEES AND OTHER COSTS OF
PRESENTING ITS CASE.
EACH PARTY SHALL BEAR ONE-HALF OF THE COSTS AND EXPENSES
OF THE ACCOUNTING FIRM.
WITHIN TEN (10) DAYS AFTER THE EARLIER OF (I) THE
EXPIRATION OF PURCHASER'S THIRTY (30) DAY REVIEW PERIOD WITHOUT DELIVERY OF ANY
WRITTEN REPORT OR (II) THE DATE ON WHICH THE PARTIES OR THE ACCOUNTING FIRM, AS
APPLICABLE, FINALLY DETERMINE THE ADJUSTED PURCHASE PRICE, (X) PURCHASER SHALL
PAY TO SELLER THE AMOUNT BY WHICH THE ADJUSTED PURCHASE PRICE EXCEEDS THE
CLOSING PAYMENT OR (Y) SELLER SHALL PAY TO PURCHASER THE AMOUNT BY WHICH THE
CLOSING PAYMENT EXCEEDS THE ADJUSTED PURCHASE PRICE, AS APPLICABLE.
ANY
POST-CLOSING PAYMENT PURSUANT TO THIS SECTION 8.4 SHALL BEAR INTEREST FROM THE
CLOSING DATE TO THE DATE OF PAYMENT AT THE AGREED INTEREST RATE.
ARTICLE 9
TERMINATION AND AMENDMENT
Section 9.1
Termination.
This Agreement may be terminated at any
time prior to Closing:
(i)