BY ANY ESTIMATED CURRENT INVENTORY
ADJUSTMENT AMOUNT GREATER THAN ZERO; PROVIDED THAT IN NO EVENT SHALL THE CLOSING
PAYMENT BE INCREASED BY MORE THAN FOUR MILLION DOLLARS ($4,000,000) (THE
"PURCHASE PRICE ADJUSTMENT") PURSUANT TO THIS SECTION 1.7(A)(I).
(II)
AS PROMPTLY AS REASONABLY PRACTICABLE
AFTER THE CLOSING DATE, BUT NOT LATER THAN ONE HUNDRED EIGHTY (180) CALENDAR
DAYS AFTER THE CLOSING DATE, ACQUIRER WILL, OR WILL CAUSE ITS INDEPENDENT
ACCOUNTING FIRM TO, PREPARE AND DELIVER TO THE SELLERS A STATEMENT (THE
"STATEMENT") SETTING FORTH ANY DISAGREEMENTS WITH THE ESTIMATED TANGIBLE NET
WORTH AS REPORTED BY SELLERS (THE "POST-CLOSING TANGIBLE NET WORTH STATEMENT"),
DETERMINED IN ACCORDANCE WITH THE ACCOUNTING PROCEDURES AND SECTION 1.7(A)(I) OF
THE DISCLOSURE SCHEDULE, OR ANY DISAGREEMENTS WITH THE ESTIMATED CURRENT
INVENTORY ADJUSTMENT AMOUNT AS REPORTED BY SELLERS.
(III)
IF THE SELLERS HAVE ANY OBJECTIONS TO THE
CALCULATION OF THE CLOSING DATE TANGIBLE NET WORTH OR THE ESTIMATED CURRENT
INVENTORY ADJUSTMENT AMOUNT AS SET FORTH ON THE STATEMENT, THE SELLERS WILL
DELIVER A DETAILED STATEMENT (THE "STATEMENT OF OBJECTIONS") DESCRIBING THE
SELLERS' OBJECTIONS TO ACQUIRER WITHIN THIRTY (30) CALENDAR DAYS OF THE SELLERS'
RECEIPT OF THE STATEMENT FROM ACQUIRER (THE "NOTICE PERIOD"); PROVIDED THAT THE
NOTICE PERIOD SHALL BE APPROPRIATELY EXTENDED BEYOND THIRTY (30) CALENDAR DAYS
TO THE EXTENT THE SELLERS REASONABLY REQUEST FURTHER INFORMATION OR
CLARIFICATION REGARDING THE POST-CLOSING TANGIBLE NET WORTH STATEMENT AND/OR THE
ACQUIRER'S DISAGREEMENTS WITH THE ESTIMATED CURRENT INVENTORY ADJUSTMENT AMOUNT
AND THE ACQUIRER HAS FAILED TO PROVIDE A REASONABLY RESPONSIVE REPLY BY THE
EARLIER OF:
(A) THE DATE THAT IS TWO (2) BUSINESS DAYS AFTER THE DATE OF ANY
SUCH REQUEST OR (B) THE DATE THAT IS THREE (3) BUSINESS DAYS PRIOR TO THE
EXPIRATION OF THE NOTICE PERIOD.
IF THE SELLERS FAIL TO NOTIFY ACQUIRER OF ANY
SUCH OBJECTIONS WITHIN THE NOTICE PERIOD, THE POST-CLOSING
7
TANGIBLE NET WORTH STATEMENT DELIVERED BY ACQUIRER TO THE SELLERS WILL BE DEEMED
TO BE THE "FINAL STATEMENT", AND THE ESTIMATED CURRENT INVENTORY ADJUSTMENT
AMOUNT DETERMINED BY ACQUIRER WILL BE DEEMED TO BE THE "FINAL CURRENT INVENTORY
ADJUSTMENT AMOUNT".
THE SELLERS AND ACQUIRER WILL USE THEIR REASONABLE BEST
EFFORTS TO RESOLVE ANY SUCH OBJECTIONS.
(IV)
IF A FINAL RESOLUTION IS NOT OBTAINED WITHIN
THIRTY (30) CALENDAR DAYS AFTER ACQUIRER HAS RECEIVED THE STATEMENT OF
OBJECTIONS, EITHER PARTY MAY REFER THE DISPUTE TO DELOITTE & TOUCHE LLP (SUCH
ACCOUNTING FIRM, THE "ACCOUNTING REFEREE") FOR BINDING RESOLUTION, DETERMINED IN
ACCORDANCE WITH THE ACCOUNTING PROCEDURES.
EXCEPT AS SET FORTH ON
SECTION 1.7(A)(IV) OF THE DISCLOSURE SCHEDULE, SINCE JANUARY 1, 2009 NEITHER THE
GUARANTOR, ACQUIRER NOR ANY OF THEIR RESPECTIVE CONTROLLED AFFILIATES HAS
CONDUCTED ANY BUSINESS WITH THE ACCOUNTING REFEREE.
THE ACCOUNTING REFEREE WILL
ADDRESS ONLY ITEMS DISPUTED BY THE PARTIES, AND MAY NOT ASSIGN TO ANY SUCH
DISPUTED ITEM A VALUE THAT IS GREATER THAN THE GREATEST AMOUNT FOR SUCH ITEM
THAT IS CLAIMED BY A PARTY OR LESS THAN THE SMALLEST AMOUNT CLAIMED BY A PARTY.
EACH PARTY WILL COOPERATE WITH THE ACCOUNTING REFEREE AND PROVIDE THE ACCOUNTING