Final Closing Statement. If either Advisor Parent or GNL timely receive a Notice of Disagreement, Advisor Parent and GNL shall attempt in good faith to resolve any differences that they may have with respect to all matters specified in the Notice of Disagreement (and all discussions related thereto shall, unless otherwise agreed by Advisor Parent and GNL, be governed by Rule 408 of the Federal Rules of Evidence (and any applicable similar state rule)), but if they do not reach a final resolution within thirty (30) days after the delivery of the Notice of Disagreement, Advisor P▇▇▇▇▇ and GNL shall submit such dispute to the dispute resolution group of a U.S. national independent accounting firm mutually acceptable to Advisor Parent and GNL (the “Accounting Expert”). Advisor Parent and GNL shall cooperate in good faith to promptly engage the Accounting Expert, pursuant to an engagement letter that requires the Accounting Expert to make all determinations in accordance with the definitions and terms contained herein. If any dispute is submitted to the Accounting Expert, Advisor P▇▇▇▇▇ and GNL will promptly upon request, furnish to the Accounting Expert such work papers and other documents and information relating to the disputed issues as the Accounting Expert may request and are available to that Party or its independent accountants (including, with respect to GNL, any information of the Surviving Entities) and otherwise cooperate fully with the Accounting Expert’s review of the dispute, and both Advisor P▇▇▇▇▇ and GNL shall be afforded the opportunity to present the Accounting Expert (with a copy concurrently delivered to the other Party) material relating to the determination and to discuss the determination with the Accounting Expert. The Accounting Expert (acting as an expert and not as an arbitrator) shall resolve only those matters set forth in such Notice of Disagreement that remain in dispute after the thirty (30)-day resolution period. With respect to any disputed item, the Accounting Expert’s determination shall be no greater than the higher of the amounts calculated and submitted by Advisor P▇▇▇▇▇ and GNL, as the case may be, and no less than the lower of the amounts calculated and submitted by Advisor P▇▇▇▇▇ and GNL, as the case may be. It is the intent of the Parties that the process set forth in this Section 2.3(c) and the activities of the Accounting Expert in connection herewith are not intended to be and, in fact, are not arbitration and that no formal arbitration rules shall be followed (including rules with respect to procedures and discovery). Advisor Parent and GNL shall use their commercially reasonable efforts to cause the Accounting Expert to resolve all such disagreements as soon as practicable but in no event later than sixty (60) days after submission of the disputed issues to the Accounting Expert. The resolution of the dispute by the Accounting Expert shall be final, binding and non-appealable on the Parties, except in the event of fraud or manifest error. The Closing Statement shall be modified if necessary to reflect such determination. The fees and expenses of the Accounting Expert shall be paid by Advisor Parent, on the one hand, and/or GNL, on the other hand, based upon the percentage which the portion of the contested amount not awarded to Advisor Parent or GNL, as applicable, bears to the amount actually contested by such Party, as determined by the Accounting Expert. As used in this Agreement, the term “Final Closing Statements” shall mean the Closing Statements described in Section 2.3(a), as prepared by Advisor P▇▇▇▇▇ and GNL and, if applicable, as subsequently adjusted to reflect any subsequent written agreement between the Parties with respect thereto, or if submitted to the Accounting Expert, the Closing Statements issued by, or reflecting the conclusions of, the Accounting Expert.
Appears in 2 contracts
Sources: Merger Agreement (Necessity Retail REIT, Inc.), Merger Agreement (Global Net Lease, Inc.)
Final Closing Statement. If either Advisor Parent or GNL timely receive a Notice of Disagreement, Advisor Parent and GNL Sellers shall attempt in good faith review the Buyers’ Closing Statement to resolve any differences that they may have with respect to all matters specified in confirm the Notice of Disagreement (and all discussions related thereto shall, unless otherwise agreed by Advisor Parent and GNL, be governed by Rule 408 accuracy of the Federal Rules Buyers’ Closing Statement and Buyers’ calculations therein. If Sellers fail to give Buyers written notice of Evidence (and any applicable similar state rule)), but if they do not reach a final resolution disputed amounts within thirty (30) days after Sellers receive the delivery Buyers’ Closing Statement (the “Review Period”), then the Buyers’ Closing Statement shall become the Final Closing Statement for purposes hereof. If Sellers give Buyers valid written notice of any disputed item (a “Notice of Disagreement”) within the Review Period, then the Parties shall attempt in good faith to agree on any adjustments that should be made to the Buyers’ Closing Statement. Any Notice of Disagreement shall (i) specify in reasonable detail the nature of any disagreement so asserted and (ii) only include disagreements based on mathematical errors or based on Actual Accrued and Unpaid Lease Payment or Actual Transaction Expenses not being calculated in accordance with this Section 2.3. If the Parties fail to resolve any amounts that remain in dispute and that were properly included in the Notice of Disagreement within fifteen (15) days after the end of the Review Period, then the Parties will engage the Audit Firm to resolve any such disputed matters by expert determination in accordance with the terms of this Agreement and GAAP, and, in connection with such engagement, the Parties shall negotiate and execute such customary engagement and indemnity agreements as the Audit Firm may reasonably require as a condition to such engagement. The Audit Firm’s engagement shall be limited to the resolution of disputed amounts set forth in the Buyers’ Closing Statement that have been identified by Sellers in the Notice of Disagreement, Advisor P▇▇▇▇▇ and GNL shall submit such dispute to the dispute resolution group of a U.S. national independent accounting firm mutually acceptable to Advisor Parent and GNL (the “Accounting Expert”). Advisor Parent and GNL shall cooperate in good faith to promptly engage the Accounting Expert, pursuant to an engagement letter that requires the Accounting Expert to make all determinations in accordance with the definitions and terms contained herein. If any dispute is submitted to the Accounting Expert, Advisor P▇▇▇▇▇ and GNL will promptly upon request, furnish to the Accounting Expert such work papers and no other documents and information matter relating to the disputed issues as Buyers’ Closing Statement shall be subject to determination by the Accounting Expert may request and are available Audit Firm except to that Party or its independent accountants (including, with respect to GNL, any information the extent affected by resolution of the Surviving Entities) and otherwise cooperate fully with the Accounting Expert’s review of the dispute, and both Advisor P▇▇▇▇▇ and GNL shall be afforded the opportunity to present the Accounting Expert (with a copy concurrently delivered to the other Party) material relating to the determination and to discuss the determination with the Accounting Expertdisputed amounts. The Accounting Expert (acting as an expert and not as an arbitrator) shall resolve only those matters set forth in In resolving any such Notice of Disagreement that remain in dispute after the thirty (30)-day resolution period. With respect to any disputed item, the Accounting Expert’s determination shall be no Audit Firm may not assign a value to any item greater than the higher greatest value for such item claimed by a Party or lower than the lowest value for such item claimed by a Party. The Audit Firm may not award damages or penalties. The Parties shall cooperate diligently with any reasonable request of the amounts calculated and submitted by Advisor P▇▇▇▇▇ and GNLAudit Firm in an effort to resolve any disputed matter as soon as reasonably possible after the Audit Firm is engaged, but neither Party will have ex parte meetings, teleconferences or other correspondence with the Audit Firm, as the case may be, and no less than the lower of the amounts calculated and submitted by Advisor P▇▇▇▇▇ and GNL, as the case may be. It it is the intent intended for each of the Parties that the process set forth in this Section 2.3(c) and the activities of the Accounting Expert in connection herewith are not intended to be andincluded in all discussions and correspondence with the Audit Firm. The Parties shall direct the Audit Firm to render its decision within thirty (30) days after being engaged, in fact, are not arbitration and that no formal arbitration rules shall be followed (including rules with respect to procedures and discovery). Advisor Parent and GNL shall use their commercially reasonable efforts to cause the Accounting Expert to resolve all such disagreements or as soon as practicable but in no event later than sixty (60) days after submission possible thereafter. In any event, the final decision of the disputed issues to the Accounting Expert. The resolution of the dispute by the Accounting Expert Audit Firm shall be final, final and binding and non-appealable on the Parties, except in the event of fraud or absent manifest error. The provisions in this Section 2.3d) shall be the Parties’ sole and exclusive remedy with respect to any disputes in connection with determinations of the Final Purchase Price and the Final Closing Statement. The Buyers’ Closing Statement shall be modified revised, if necessary necessary, to reflect such determination. The fees and expenses the final determination of the Accounting Expert shall be paid by Advisor ParentParties or the Audit Firm, on as applicable (the one hand, and/or GNL, on the other hand, based upon the percentage which the portion final form of the contested amount not awarded Buyers’ Closing Statement, including any revisions that are made thereto pursuant to Advisor Parent or GNLthis Section 2.3d), is referred to herein as applicable, bears to the amount actually contested by such Party, as determined by the Accounting Expert. As used in this Agreement, the term “Final Closing Statements” shall mean the Closing Statements described in Section 2.3(aStatement”), . The Purchase Price as prepared by Advisor P▇▇▇▇▇ and GNL and, if applicable, as subsequently adjusted to reflect any subsequent written agreement between the Parties with respect thereto, or if submitted calculated pursuant to the Accounting Expert, Final Closing Statement shall be referred to herein as the Closing Statements issued by, or reflecting the conclusions of, the Accounting Expert“Final Purchase Price.”
Appears in 1 contract
Sources: Purchase and Sale Agreement (XPLR Infrastructure, LP)
Final Closing Statement. If either Advisor Parent or GNL timely receive a Notice of Disagreement, Advisor Parent and GNL shall attempt in good faith to resolve any differences that they may have with respect to all matters specified in (a) As promptly as possible after the Notice of Disagreement (and all discussions related thereto shall, unless otherwise agreed by Advisor Parent and GNL, be governed by Rule 408 of the Federal Rules of Evidence (and any applicable similar state rule))Closing Date, but if they do not reach a final resolution within thirty (30) days after the delivery of the Notice of Disagreement, Advisor P▇▇▇▇▇ and GNL shall submit such dispute to the dispute resolution group of a U.S. national independent accounting firm mutually acceptable to Advisor Parent and GNL (the “Accounting Expert”). Advisor Parent and GNL shall cooperate in good faith to promptly engage the Accounting Expert, pursuant to an engagement letter that requires the Accounting Expert to make all determinations in accordance with the definitions and terms contained herein. If any dispute is submitted to the Accounting Expert, Advisor P▇▇▇▇▇ and GNL will promptly upon request, furnish to the Accounting Expert such work papers and other documents and information relating to the disputed issues as the Accounting Expert may request and are available to that Party or its independent accountants (including, with respect to GNL, any information of the Surviving Entities) and otherwise cooperate fully with the Accounting Expert’s review of the dispute, and both Advisor P▇▇▇▇▇ and GNL shall be afforded the opportunity to present the Accounting Expert (with a copy concurrently delivered to the other Party) material relating to the determination and to discuss the determination with the Accounting Expert. The Accounting Expert (acting as an expert and not as an arbitrator) shall resolve only those matters set forth in such Notice of Disagreement that remain in dispute after the thirty (30)-day resolution period. With respect to any disputed item, the Accounting Expert’s determination shall be no greater than the higher of the amounts calculated and submitted by Advisor P▇▇▇▇▇ and GNL, as the case may be, and no less than the lower of the amounts calculated and submitted by Advisor P▇▇▇▇▇ and GNL, as the case may be. It is the intent of the Parties that the process set forth in this Section 2.3(c) and the activities of the Accounting Expert in connection herewith are not intended to be and, in fact, are not arbitration and that no formal arbitration rules shall be followed (including rules with respect to procedures and discovery). Advisor Parent and GNL shall use their commercially reasonable efforts to cause the Accounting Expert to resolve all such disagreements as soon as practicable but in no event later than sixty (60) days after submission the Closing Date, the Purchaser shall prepare and deliver to the Seller a balance sheet of the disputed issues Business as of the Closing Date (the “Final Closing Statement”), which will eliminate the Excluded Assets and the Excluded Liabilities. The Seller shall, and shall cause its independent accountants to, cooperate and assist, to the Accounting Expertextent requested by the Purchaser and/or its independent accountants, in the preparation of the Final Closing Statement, including, without limitation, by making available to the extent necessary books, records, work papers and personnel.
(b) The Seller and its independent certified public accountants may review the Final Closing Statement and may make inquiry of the representatives of the Purchaser’s accountants and the Purchaser. The resolution of the dispute by the Accounting Expert shall be final, binding and non-appealable on the Parties, except in the event of fraud or manifest error. The Final Closing Statement shall be modified if necessary binding and conclusive upon, and deemed accepted by, the Seller unless the Seller shall have notified the Purchaser in writing thirty (30) days after receipt the Final Closing Statement of any objections thereto. A notice under this Section 1.11(b) shall specify, in reasonable detail, the items calculation that are being disputed, and the Seller shall be deemed to reflect have agreed with all other items and amounts contained in the Final Closing Statement delivered by the Purchaser.
(c) At the request of either party, any dispute between the parties relating to the Final Closing Statement that cannot be resolved by them within thirty (30) days after receipt of notice of any objections to such determinationcalculation pursuant to Section 1.11(b) shall be referred to the Disputes Auditor for decision, which decision shall be final and binding on both parties. In making such decision, the Disputes Auditor shall consider only those items or amounts as to which the Seller has disagreed. The fees and expenses parties agree that they will request that the Disputes Auditor render its decision within thirty (30) days after referral of the Accounting Expert dispute to the Disputes Auditor for decision pursuant hereto. The fee of the Disputes Auditor for, and relating to, the making of any such decision shall be paid borne by Advisor Parent, the parties equally.
(d) The Final Closing Statement shall become binding on the one hand, and/or GNL, on the other hand, based both parties upon the percentage earliest of (i) the expiration of the period within which the portion Seller may notify the Purchaser of the contested amount not awarded any objections thereto pursuant to Advisor Parent or GNLSection 1.11(b) if no notice of objection has been given, as applicable, bears to the amount actually contested by such Party, as determined (ii) agreement by the Accounting Expert. As used in this Agreement, Seller and the term “Purchaser that the Final Closing Statements” Statement, together with any modifications thereto agreed by the Seller and the Purchaser, shall mean be final and binding and (iii) the Closing Statements described in Section 2.3(a), as prepared by Advisor P▇▇▇▇▇ and GNL and, if applicable, as subsequently adjusted to reflect any subsequent written agreement between date on which the Parties Disputes Auditor shall issue its decision with respect to any dispute relating thereto, or if submitted to the Accounting Expert, the Closing Statements issued by, or reflecting the conclusions of, the Accounting Expert.
Appears in 1 contract
Final Closing Statement. If either Advisor Parent or GNL timely receive receives a Notice of Disagreement, Advisor the Seller Representative and Parent and GNL shall attempt in good faith to resolve any differences that they may have with respect to all matters specified in the Notice of Disagreement (and all discussions related thereto shall, unless otherwise agreed by Advisor the Parent and GNLthe Seller Representative, be governed by Rule 408 of the Federal Rules of Evidence (and any applicable similar state rule)), but if they do not reach a final resolution within thirty (30) days after the delivery of the Notice of Disagreement, Advisor P▇▇▇▇▇ the Seller Representative and GNL the Parent shall submit such dispute to the dispute resolution group New York office of a U.S. national ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP, or any other nationally recognized firm of independent accounting firm certified public accountants in the United States as may be mutually acceptable to Advisor selected by Parent and GNL the Seller Representative (the “Accounting Expert”). Advisor The Seller Representative and the Parent and GNL shall cooperate in good faith to promptly jointly engage the Accounting Expert, pursuant to an engagement letter that requires the Accounting Expert to make all determinations in accordance with the definitions and terms contained herein, including Section 2.10(e), notwithstanding the availability of other accounting methods, policies, practices and/or procedures under GAAP or otherwise. If any dispute is submitted to the Accounting Expert, Advisor P▇▇▇▇▇ and GNL each Party will promptly upon request, furnish to the Accounting Expert such work papers and other documents and information relating to the disputed issues as the Accounting Expert may request and are available to that Party or its independent accountants (including, with respect to GNL, any including information of the Surviving EntitiesCompany and its Subsidiaries) and otherwise cooperate fully with the Accounting Expert’s review of the dispute, and both Advisor P▇▇▇▇▇ and GNL each Party shall be afforded the opportunity to present the Accounting Expert (with a copy concurrently delivered to the other Party) material relating to the determination and to discuss the determination with the Accounting Expert. The Accounting Expert (acting as an expert and not as an arbitrator) shall resolve only those matters set forth in such Notice of Disagreement that remain in dispute after the thirty (30)-day 30-day resolution periodperiod and no new dispute items shall be introduced for consideration. With respect to any disputed item, the Accounting Expert’s determination shall be no greater than the higher of amount calculated by the amounts calculated and submitted by Advisor P▇▇▇▇▇ and GNLParent or Seller Representative, as the case may be, and no less than the lower of amount calculated by the amounts calculated and submitted by Advisor P▇▇▇▇▇ and GNLParent or the Seller Representative, as the case may be. It is the intent of the Parties that the process set forth in this Section 2.3(c2.10(c) and the activities of the Accounting Expert in connection herewith are not intended to be and, in fact, are not arbitration and that no formal arbitration rules shall be followed (including rules with respect to procedures and discovery). Advisor The Seller Representative and the Parent and GNL shall use their commercially reasonable efforts to cause the Accounting Expert to resolve all such disagreements as soon as practicable but in no event later than sixty (60) days after submission of the disputed issues to the Accounting Expert. The resolution of the dispute by the Accounting Expert shall be final, binding and non-appealable on the Parties, except in the event of fraud or manifest errorParties hereto. The Closing Statement shall be modified if necessary to reflect such determination. The fees and expenses of the Accounting Expert shall be allocated to be paid by Advisor the Parent, on the one hand, and/or GNLthe Sellers, on the other hand, based upon the percentage which the portion of the contested amount not awarded to Advisor Parent or GNL, as applicable, each Party bears to the amount actually contested by such Party, as determined by the Accounting Expert. As used in this Agreement, the term “Final Closing StatementsStatement” shall mean the Closing Statements Statement described in Section 2.3(a2.10(a), as prepared by Advisor P▇▇▇▇▇ and GNL Parent and, if applicable, as subsequently adjusted to reflect any subsequent written agreement between the Parties with respect thereto, or if submitted to the Accounting Expert, the Closing Statements Statement issued by, or reflecting the conclusions of, by the Accounting Expert.
Appears in 1 contract
Sources: Merger Agreement (CyrusOne Inc.)
Final Closing Statement. If either Advisor During the first twenty (20) days following the date upon which Parent or GNL timely receive receives a Notice of Disagreement, Advisor the Equityholders’ Representative and Parent and GNL shall attempt in good faith to resolve in writing any differences that they may have with respect to all matters specified in the Notice of Disagreement Disagreement. If at the end of such twenty (and all discussions related thereto shall, unless otherwise agreed 20) day period (or earlier by Advisor mutual agreement to arbitrate) Parent and GNLthe Equityholders’ Representative have not reached agreement on such matters, the matters that remain in dispute may be governed by Rule 408 of the Federal Rules of Evidence (and any applicable similar state rule)), but if they do not reach a final resolution within thirty (30) days after the delivery of the Notice of Disagreement, Advisor Psubmitted to ▇▇▇▇▇ and GNL shall submit such dispute to the dispute resolution group of a U.S. national independent accounting firm mutually acceptable to Advisor Parent and GNL (the “Accounting Expert”). Advisor Parent and GNL shall cooperate in good faith to promptly engage the Accounting Expert, pursuant to an engagement letter that requires the Accounting Expert to make all determinations in accordance with the definitions and terms contained herein. If any dispute is submitted to the Accounting Expert, Advisor P▇▇▇▇▇▇▇▇ LLP (the “Arbitrator”) by either Party for review and GNL will promptly upon request, furnish to the Accounting Expert such work papers and other documents and information relating to the disputed issues as the Accounting Expert may request and are available to that Party or its independent accountants (including, with respect to GNL, any information of the Surviving Entities) and otherwise cooperate fully with the Accounting Expert’s review of the dispute, and both Advisor Presolution. If ▇▇▇▇▇ and GNL shall be afforded the opportunity to present the Accounting Expert (with a copy concurrently delivered to the other Party) material relating to the determination and to discuss the determination with the Accounting Expert. The Accounting Expert (acting as an expert and not as an arbitrator) shall resolve only those matters set forth in such Notice of Disagreement that remain in dispute after the thirty (30)-day resolution period. With respect to any disputed item, the Accounting Expert’s determination shall be no greater than the higher of the amounts calculated and submitted by Advisor P▇▇▇▇▇▇▇▇ and GNL, LLP is unable to serve as the case may be“Arbitrator” hereunder, and no less than the lower of the amounts calculated and submitted Arbitrator shall be a internationally recognized independent public accounting firm agreed upon by Advisor P▇▇▇▇▇ and GNL, as the case may be. It is the intent of the Parties that the process set forth in this Section 2.3(c) Parent and the activities of the Accounting Expert Equityholders’ Representative in connection herewith are not intended to be and, in fact, are not arbitration and that no formal arbitration rules shall be followed (including rules with respect to procedures and discovery)writing. Advisor Parent and GNL shall use their commercially reasonable efforts to cause the Accounting Expert to resolve all such disagreements as soon As promptly as practicable (but in no event later more than sixty thirty (6030) days days) after submission the retention of the disputed issues Arbitrator, Parent and the Equityholders’ Representative shall each prepare and submit a presentation to the Accounting ExpertArbitrator. As soon as practicable (but in no event more than thirty (30) days) thereafter, the Arbitrator shall determine the amount of each item in dispute and prepare a Final Closing Statement and calculation of Working Capital, Closing Date Indebtedness and Closing Date Cash in accordance with the principles in this Section 2.7, which shall include an explanation in writing of the Arbitrator’s reasons for the determinations set forth therein. The resolution Arbitrator shall act as an arbitrator and shall address only those items in dispute and for each item may not assign a value greater than the greatest value for such item claimed by either Party or smaller than the smallest value for such item claimed by either Party. The decision of the dispute by the Accounting Expert Arbitrator shall be final, final and binding and non-appealable on the Parties, except in the event of fraud or manifest error. The Closing Statement shall be modified if necessary to reflect such determination. The costs, fees and expenses of the Accounting Expert Arbitrator in connection with the Arbitrator’s review pursuant to this Section 2.7(d) (including reasonable attorney’s fees of the Arbitrator) shall be borne fifty percent (50%) by Parent and fifty percent (50%) by the Equityholders out of the Equityholders’ Representative Escrow Account. Each of Parent and the Equityholders’ Representative shall pay its own costs, fees and expenses (including attorney’s fees) in connection with the Arbitrator’s review pursuant to this Section 2.7(d), without right of reimbursement from such other Party; provided, that such costs, fees and expenses of the Equityholders’ Representative (up to a maximum of one million dollars ($1,000,000)), including any amounts payable to the Arbitrator out of the Equityholders’ Representative Escrow Account pursuant to the previous sentence) shall be paid by Advisor Parent, on the one hand, and/or GNL, on the other hand, based upon the percentage which the portion out of the contested amount not awarded to Advisor Parent or GNL, as applicable, bears to the amount actually contested by such Party, as determined by the Accounting Expert. As used in this Agreement, the term “Final Closing Statements” shall mean the Closing Statements described in Section 2.3(a), as prepared by Advisor P▇▇▇▇▇ and GNL and, if applicable, as subsequently adjusted to reflect any subsequent written agreement between the Parties with respect thereto, or if submitted to the Accounting Expert, the Closing Statements issued by, or reflecting the conclusions of, the Accounting ExpertEquityholders’ Representative Escrow Account.
Appears in 1 contract
Sources: Merger Agreement (Shire PLC)
Final Closing Statement. If either Advisor Parent the General Partner notifies Buyer of its acceptance of the amounts set forth in the Final Closing Statement, or GNL timely receive a Notice if the General Partner fails to deliver its report of Disagreementany proposed adjustments within the thirty day period specified in the preceding sentence, Advisor Parent the amounts set forth in the Final Closing Statement shall be conclusive, final, and GNL binding on the parties as of the last day of such thirty day period. Buyer and the General Partner shall attempt in use good faith efforts to resolve any differences that they may have with respect to all matters specified dispute involving the amounts set forth in the Notice of Disagreement (Final Closing Statement. If the General Partner and all discussions related thereto shall, unless otherwise agreed by Advisor Parent and GNL, be governed by Rule 408 of Buyer fail to agree on any amount set forth in the Federal Rules of Evidence (and any applicable similar state rule)), but if they do not reach a final resolution Final Closing Statement within thirty (30) fifteen days after Buyer receives the delivery of General Partner's report pursuant to this Section 2.7, then the Notice of Disagreement, Advisor P▇▇▇▇▇ and GNL General Partner shall submit such dispute to the dispute resolution group of retain a U.S. national independent accounting firm mutually acceptable to Advisor Parent and GNL (the “Accounting Expert”). Advisor Parent and GNL shall cooperate in good faith to promptly engage the Accounting Expert, pursuant to an engagement letter that requires the Accounting Expert which is approved by Buyer to make all determinations in accordance with the definitions and final determination, under the terms contained hereinof this Agreement, of any amounts under dispute. If Buyer hereby approves the appointment of any dispute is submitted to of the Accounting Expert, Advisor P▇▇▇▇▇ and GNL will promptly upon request, furnish to "Big Five" accounting firms selected by the Accounting Expert General Partner so long as such work papers and other documents and information relating to the disputed issues firm does not then serve as the Accounting Expert may request and are available to that Party or its independent accountants (including, with respect to GNL, auditor of any information of the Surviving Entities) and otherwise cooperate fully with FrontierVision Companies or the Accounting Expert’s review of the dispute, and both Advisor P▇▇▇▇▇ and GNL shall be afforded the opportunity to present the Accounting Expert (with a copy concurrently delivered to the other Party) material relating to the determination and to discuss the determination with the Accounting ExpertGeneral Partner or Buyer. The Accounting Expert (acting as an expert and not as an arbitrator) selected accounting firm shall resolve only those matters set forth in such Notice of Disagreement that remain in dispute after the thirty (30)-day resolution period. With respect to any disputed item, the Accounting Expert’s determination shall be no greater than the higher of the amounts calculated and submitted by Advisor P▇▇▇▇▇ and GNL, as the case may be, and no less than the lower of the amounts calculated and submitted by Advisor P▇▇▇▇▇ and GNL, as the case may be. It is the intent of the Parties that the process set forth in this Section 2.3(c) and the activities of the Accounting Expert in connection herewith are not intended to be and, in fact, are not arbitration and that no formal arbitration rules shall be followed (including rules with respect to procedures and discovery). Advisor Parent and GNL shall use their commercially reasonable efforts to cause the Accounting Expert endeavor to resolve all such disagreements the dispute as soon promptly as practicable but in no event later than sixty (60) days after submission of the disputed issues to the Accounting Expert. The and such firm's resolution of the dispute by the Accounting Expert shall be final, final and binding and non-appealable on the Partiesparties, except and a judgment may be entered thereon in any court of competent jurisdiction. All of the event of fraud or manifest error. The Closing Statement shall be modified if necessary to reflect such determination. The fees costs and expenses of the Accounting Expert selected accounting firm and its services rendered pursuant to this Section 2.7 shall be paid borne by Advisor ParentBuyer, on the one hand, and/or GNLand Sellers, on the other hand, based upon as nearly as possible in the percentage which the portion of the contested amount not awarded to Advisor Parent or GNL, as applicable, bears proportion to the amount actually contested by which the determination of all matters related to such Party, as determined costs and expenses varies from the positions of Buyer and the General Partner on all such matters. Any fees to be borne by the Accounting Expert. As used in this Agreement, the term “Final Closing Statements” shall mean the Closing Statements described in Section 2.3(a), as prepared by Advisor P▇▇▇▇▇ and GNL and, if applicable, as subsequently adjusted to reflect any subsequent written agreement between the Parties with respect thereto, or if submitted Sellers pursuant to the Accounting Expert, preceding sentence shall be paid out of the Post-Closing Statements issued by, or reflecting Adjustment Funds in accordance with the conclusions of, the Accounting Expertprovisions of Section 2.7(c).
Appears in 1 contract
Final Closing Statement. If either Advisor Parent or GNL HTI timely receive a Notice of DisagreementClosing Statement Objection Notice, Advisor Parent and GNL HTI shall attempt in good faith to resolve any differences that they may have with respect to all matters specified in the Closing Statement Objection Notice of Disagreement (and all discussions related thereto shall, unless otherwise agreed by Advisor Parent and GNLHTI, be governed by Rule 408 of the Federal Rules of Evidence (and any applicable similar state rule)), but if they do not reach a final resolution within thirty (30) days after the delivery of the Notice of DisagreementClosing Statement Objection Notice, Advisor P▇▇▇▇▇ Parent and GNL HTI shall submit such dispute to the dispute resolution group of a U.S. national independent accounting firm mutually acceptable to Advisor Parent and GNL (the “Accounting Expert”). Advisor Parent and GNL HTI shall cooperate in good faith to promptly engage the Accounting Expert, pursuant to an engagement letter that requires the Accounting Expert to make all determinations in accordance with the definitions and terms contained herein. If any dispute is submitted to the Accounting Expert, Advisor P▇▇▇▇▇ Parent and GNL HTI will promptly upon request, furnish to the Accounting Expert such work papers and other documents and information relating to the disputed issues as the Accounting Expert may request and are available to that Party or its independent accountants (including, with respect to GNLHTI, any information of the Surviving EntitiesTarget Companies) and otherwise cooperate fully with the Accounting Expert’s review of the dispute, and both Advisor P▇▇▇▇▇ Parent and GNL HTI shall be afforded the opportunity to present the Accounting Expert (with a copy concurrently delivered to the other Party) material relating to the determination disputed items and to discuss the determination disputed items with the Accounting Expert. The Accounting Expert (acting as an expert and not as an arbitrator) shall resolve only those matters set forth in such Closing Statement Objection Notice of Disagreement that remain in dispute after the thirty (30)-day resolution period. With respect to any disputed item, the Accounting Expert’s determination shall be no greater than the higher of the amounts calculated and submitted by Advisor P▇▇▇▇▇ Parent and GNLHTI, as the case may be, and no less than the lower of the amounts calculated and submitted by Advisor P▇▇▇▇▇ Parent and GNLHTI, as the case may be. It is the intent of the Parties that the process set forth in this Section 2.3(c) and the activities of the Accounting Expert in connection herewith are not intended to be and, in fact, are not arbitration and that no formal arbitration rules shall be followed (including rules with respect to procedures and discovery). Advisor Parent and GNL HTI shall use their commercially reasonable efforts to cause the Accounting Expert to resolve all such disagreements as soon as practicable but in no event later than sixty (60) days after submission of the disputed issues to the Accounting Expert. The resolution of the dispute by the Accounting Expert shall be final, binding and non-appealable on the Parties, except in the event of fraud or manifest error. The applicable Closing Statement Statement(s) shall be modified if necessary to reflect such determination. The fees and expenses of the Accounting Expert shall be paid by Advisor Parent, on the one hand, and/or GNLHTI, on the other hand, based upon the percentage which the portion of the contested amount not awarded to Advisor Parent or GNLHTI, as applicable, bears to the amount actually contested by such Party, as determined by the Accounting Expert. As used in this Agreement, the term “Final Closing Statements” shall mean the Closing Statements described in Section 2.3(a), as prepared by Advisor P▇▇▇▇▇ Parent and GNL HTI and, if applicable, as subsequently adjusted to reflect any subsequent written agreement between the Parties with respect thereto, or if submitted to the Accounting Expert, the Closing Statements issued by, or reflecting the conclusions of, the Accounting Expert.
Appears in 1 contract
Final Closing Statement. If either Advisor Within ninety (90) days following the Closing Date, Parent shall deliver to the Holder Representative a statement (the “Closing Statement” and, in its final and binding form as determined below, the “Final Closing Statement”) setting forth the Closing Consideration and each component thereof as of immediately prior to the Closing, including final determinations as to the amounts of (A) the Company Cash, (B) the Funded Debt and (C) the Closing Net Working Capital. The Final Closing Statement and the components thereof shall be prepared in accordance with the Agreed Accounting Principles. The Holder Representative shall cooperate as reasonably requested in connection with the preparation of the Closing Statement. During the thirty (30)-day period immediately following the Holder Representative’s receipt of the Closing Statement, the Holder Representative shall be permitted to review Parent’s working papers related to the preparation of the Closing Statement and determination of the Closing Consideration and the components thereof. The Closing Statement shall become final and binding upon the parties upon the earlier of (x) thirty (30) days following the Holder Representative’s receipt thereof, unless the Holder Representative shall give written notice of its disagreement (a “Notice of Disagreement”) to Parent prior to such date and (y) the date that the Holder Representative notifies Parent of its acceptance thereof. Any Notice of Disagreement shall specify in reasonable detail the nature and dollar amount of any disagreement so asserted. The Closing Statement shall become final and binding upon the resolution in writing of all disagreements the parties may have with respect thereto (whether by the written agreement of the parties or GNL timely receive pursuant to the arbitration provisions set forth below). During the thirty (30) days following delivery of a Notice of Disagreement, Advisor Parent and GNL the Holder Representative shall attempt seek in good faith to resolve in writing any differences that which they may have with respect to all the matters specified in the Notice of Disagreement (and all discussions related thereto shallDisagreement. Following delivery of a Notice of Disagreement, unless otherwise agreed by Advisor Parent and GNLits agents and Representatives shall be permitted to review the Holder Representative’s and its Representatives’ working papers relating to the Notice of Disagreement. If, be governed by Rule 408 at the end of the Federal Rules thirty (30)-day period referred to above, the matters in dispute have not been fully resolved, then the parties shall submit to Ernst & Young LLP (or such other mutually agreed independent accountants of Evidence nationally recognized standing) (any such accounting firm, the “Accounting Firm”) for review and any applicable similar state rule))resolution of all matters (but only such matters) which remain in dispute, but if they do not reach and the Accounting Firm shall make a final resolution within thirty (30) days after determination of the delivery Closing Consideration and the components thereof to the extent such amounts are in dispute, in accordance with the guidelines and procedures set forth in this Agreement. The parties will reasonably cooperate with the Accounting Firm during the term of its engagement. The Accounting Firm shall be provided reasonable access to the books, records and other relevant information of the Company, Parent and the Holder Representative to the extent necessary to calculate the Closing Consideration. In resolving any matters in dispute, the Accounting Firm may not assign a value to any item in dispute greater than the greatest value for such item assigned by Parent in the Closing Statement, on the one hand, or the Holder Representative in the Notice of Disagreement, Advisor P▇▇▇▇▇ and GNL on the other hand, or less than the smallest value for such item assigned by Parent in the Closing Statement, on the one hand, or the Holder Representative in the Notice of Disagreement, on the other hand. The Accounting Firm’s determination shall submit such dispute to the dispute resolution group of a U.S. national independent accounting firm mutually acceptable to Advisor be based solely on presentations by Parent and GNL (the “Accounting Expert”). Advisor Parent and GNL shall cooperate in good faith to promptly engage the Accounting Expert, pursuant to an engagement letter that requires the Accounting Expert to make all determinations Holder Representative which are in accordance with the definitions guidelines and terms contained hereinprocedures set forth in this Agreement (i.e., not on the basis of an independent review). If any dispute is submitted Absent fraud committed by the Accounting Firm or manifest error (as to which Parent and the Holder Representative mutually agree), the Closing Statement and the determination of the Closing Consideration and the components thereof shall become final and binding on the parties on the date the Accounting Firm delivers its final resolution in writing to the Accounting Expert, Advisor P▇▇▇▇▇ and GNL will promptly upon request, furnish to parties (which the Accounting Expert such work papers and other documents and information relating to the disputed issues as the Accounting Expert may request and are available to that Party or its independent accountants (including, with respect to GNL, any information of the Surviving Entities) and otherwise cooperate fully with the Accounting Expert’s review of the dispute, and both Advisor P▇▇▇▇▇ and GNL Firm shall be afforded the opportunity instructed to present the Accounting Expert deliver not more than forty-five (with a copy concurrently delivered to the other Party45) material relating to the determination and to discuss the determination with the Accounting Expertdays following submission of such disputed matters). The Accounting Expert (acting Firm shall act as an expert and not as an arbitrator) shall resolve only those arbitrator to determine solely the matters set forth in such Notice of Disagreement that remain in dispute after the thirty (30)-day resolution period. With respect to any disputed item, the Accounting Expert’s determination shall be no greater than the higher of the amounts calculated and submitted by Advisor P▇▇▇▇▇ and GNL, as the case may be, and no less than the lower of the amounts calculated and submitted by Advisor P▇▇▇▇▇ and GNL, as the case may be. It is the intent of the Parties that the process set forth in this Section 2.3(c) and the activities of the Accounting Expert in connection herewith are not intended to be and, in fact, are not arbitration and that no formal arbitration rules shall be followed (including rules with respect to procedures and discovery). Advisor Parent and GNL shall use their commercially reasonable efforts to cause the Accounting Expert to resolve all such disagreements as soon as practicable but in no event later than sixty (60) days after submission of the disputed issues to the Accounting Expert. The resolution of the dispute by the Accounting Expert shall be final, binding and non-appealable based solely on the Parties, except in the event submissions and responses of fraud or manifest error. The Closing Statement shall be modified if necessary to reflect such determination. The fees and expenses of the Accounting Expert shall be paid by Advisor Parent, on the one hand, and/or GNLand the Holder Representative, on the other hand. The Accounting Firm shall allocate its costs and expenses between Parent and the Holder Representative, on behalf of the Holders, based upon the percentage of the contested amount submitted to the Accounting Firm that is ultimately awarded to Parent, on the one hand, or the Holder Representative on behalf of the Holders, on the other hand, based upon such that Parent bears a percentage of such costs and expenses equal to the percentage which the portion of the contested amount not awarded to Advisor Parent or GNL, as applicable, bears the Holders and the Holders bear a percentage of such costs and expenses equal to the percentage of the contested amount actually contested by awarded to Parent (such Party, as determined amount payable by the Accounting Expert. As used Holder Representative on behalf of the Holders to be deducted from the Purchase Price Adjustment Holdback and retained by Parent in this Agreement, the term “Final Closing Statements” shall mean the Closing Statements described in accordance with Section 2.3(a4.1(c)(ii), as prepared by Advisor P▇▇▇▇▇ and GNL and, if applicable, as subsequently adjusted to reflect any subsequent written agreement between the Parties with respect thereto, or if submitted to the Accounting Expert, the Closing Statements issued by, or reflecting the conclusions of, the Accounting Expert).
Appears in 1 contract
Sources: Merger Agreement (CONMED Corp)
Final Closing Statement. If either Advisor Parent (a) Within forty-five (45) days after the Closing Date, or GNL timely receive at such other time as is mutually agreed to by the Parties, Buyer shall prepare (with the assistance of Seller) and deliver to Seller a Notice of Disagreement, Advisor Parent and GNL shall attempt in good faith to resolve any differences that they may have with respect to all matters specified Final Closing Statement in the Notice of Disagreement form attached hereto as Exhibit A-2 together with a system generated report from Buyer or other mutually acceptable documentation showing the changes to the Preliminary Closing Statement provided by Seller pursuant to Section 2.2(b) (and all discussions related thereto shall, unless otherwise agreed by Advisor Parent and GNL, be governed by Rule 408 such changes to reflect the available information on Purchased Accounts as of the Federal Rules Cut-Off Time, and such additional changes to be limited to the correction of Evidence (mathematical errors and the return to Seller of any applicable similar state ruleAccount that is not a Purchased Account)), but if they do not reach a final resolution . Seller shall review such Final Closing Statement within thirty (30) days after of its receipt thereof and shall promptly notify Buyer of any discrepancies. The Parties shall confer until they are in agreement on the delivery Final Closing Statement. In the event the Parties are unable to reach agreement on the Final Closing Statement within ten (10) Business Days of the Notice date Buyer has been notified of Disagreement, Advisor P▇▇▇▇▇ and GNL shall submit such dispute to the dispute resolution group of a U.S. national independent accounting firm mutually acceptable to Advisor Parent and GNL (the “Accounting Expert”). Advisor Parent and GNL shall cooperate in good faith to promptly engage the Accounting Expert, pursuant to an engagement letter that requires the Accounting Expert to make all determinations in accordance with the definitions and terms contained herein. If any dispute is submitted to the Accounting Expert, Advisor P▇▇▇▇▇ and GNL will promptly upon request, furnish to the Accounting Expert such work papers and other documents and information relating to the disputed issues as the Accounting Expert may request and are available to that Party or its independent accountants (includingdiscrepancies by Seller, with respect to GNL, any information the funds that are the subject of the Surviving Entities) and otherwise cooperate fully with the Accounting Expert’s review of the dispute, the Parties shall jointly hire (and both Advisor P▇▇▇▇▇ share equally in the cost of) a nationally recognized public accounting firm that is acceptable to the Parties to resolve any discrepancies in the Final Closing Statement, and GNL shall equally share the costs of such resolution. The final resolution and decision issued by such accounting firm shall be afforded binding upon the opportunity to present the Accounting Expert (with a copy concurrently delivered to the other Party) material relating to the determination and to discuss the determination with the Accounting ExpertParties. The Accounting Expert (acting as an expert and not as an arbitrator) shall resolve only those matters set forth date when the Parties reach agreement on the Final Closing Statement or, in the absence of such Notice of Disagreement that remain in dispute after the thirty (30)-day resolution period. With respect to any disputed itemagreement, the Accounting Expert’s determination shall be no greater date when such final resolution and decision is issued, is referred to in this Agreement as the "Final Settlement Date."
(b) If the Purchase Price established by the Final Closing Statement is more than the higher of Estimated Purchase Price, Buyer shall pay the amounts calculated and submitted by Advisor P▇▇▇▇▇ and GNL, as difference to Seller. If the case may be, and no Purchase Price is less than the lower of Estimated Purchase Price, Seller shall pay the amounts calculated and submitted difference to Buyer. Any payment owing by Advisor P▇▇▇▇▇ and GNL, as the case may be. It is the intent of the Parties that the process set forth in either Buyer or Seller under this Section 2.3(c3.4(b) and the activities of the Accounting Expert in connection herewith are not intended to be and, in fact, are not arbitration and that no formal arbitration rules shall be followed made within three (including rules with respect 3) Business Days after the Final Settlement Date and shall include interest calculated on a daily basis from the Closing Date to procedures and discovery). Advisor Parent and GNL shall use their commercially reasonable efforts the date such payment is made at the Federal Funds Interest Rate.
(c) Anything in Sections 3.4(a) or (b) to cause the Accounting Expert to resolve all such disagreements as soon as practicable but in no event later than sixty contrary notwithstanding, for a period of one hundred twenty (60120) days after submission of following the disputed issues to the Accounting Expert. The resolution of the dispute by the Accounting Expert shall be finalClosing Date, binding and non-appealable on the Parties, except in the event of fraud any Purchased Account is discovered by Buyer or manifest error. The Seller after the Closing Statement shall be modified if necessary Date to reflect such determination. The fees and expenses have been an Excluded Account as of the Accounting Expert shall be paid by Advisor ParentCut-Off Time (and to the extent such Excluded Account has not been returned and accounted for in the Final Closing Statement), on the one hand, and/or GNL, on the other hand, based upon the percentage which request of Buyer, Seller shall refund 100% of the portion of the contested Purchase Price relating to such Account, plus the aggregate amount not awarded of any additional purchases financed on such Account after the Cut-Off Time, less the aggregate amount of any payments of Indebtedness made to Advisor Parent Buyer relating to such Excluded Account (Buyer shall thereafter return all information in its possession or GNLcontrol in respect of any such Excluded Account, as applicable, bears to the amount actually contested by such Party, as determined by the Accounting Expert. As used in this Agreement, the term “Final Closing Statements” shall mean the Closing Statements described in Section 2.3(a), as prepared by Advisor P▇▇▇▇▇ and GNL and, if applicable, as subsequently adjusted to reflect any subsequent written agreement between the Parties shall take such action as is reasonably necessary to ensure that title to any such Excluded Account is fully vested in Seller). Prior to Buyer's request for refund, Buyer shall confer with Seller in good faith regarding the reclassification of a Purchased Account as an Excluded Account. Buyer shall thereafter notify Seller in writing that a refund in respect thereto, or if submitted to of an Excluded Account is due. Such notice shall include information establishing that the Accounting Expert, the Closing Statements issued by, or reflecting the conclusions of, the Accounting Expert.applicable Purchased Account is an Excluded Account. Any payment owing by Seller under this Section 3.4(c) shall be made within twenty
Appears in 1 contract
Sources: Portfolio Purchase and Sale Agreement (Lesco Inc/Oh)
Final Closing Statement. If either Advisor Parent or GNL timely receive Not later than forty-five (45) Business Days after the Closing Date, Seller shall deliver to Purchaser a Notice statement, as of Disagreementthe Close of Business on the Closing Date, Advisor Parent and GNL shall attempt prepared in good faith to resolve any differences that they may have accordance with respect to all matters specified GAAP applied consistently with the practices used in the Notice of Disagreement (and all discussions related thereto shall, unless otherwise agreed by Advisor Parent and GNL, be governed by Rule 408 preparation of the Federal Rules Closing Statement except as and to the extent that this Agreement provides for different valuation methodologies for particular categories of Evidence Purchased Assets and Assumed Liabilities, showing the Aggregate Asset Amount and the calculation thereof, reflecting the Purchased Assets and Assumed Liabilities, as of the Close of Business on the Closing Date (and any applicable similar state rule)as reflected on the Final Schedules), but if they do not reach a final resolution within thirty (30and reflecting such other adjustments as are appropriate in accordance with Section 3.3(b) days after the delivery of the Notice of Disagreement, Advisor P▇▇▇▇▇ and GNL shall submit such dispute to the dispute resolution group of a U.S. national independent accounting firm mutually acceptable to Advisor Parent and GNL (the “Accounting ExpertFinal Closing Statement”). Advisor Parent Purchaser shall provide Seller and GNL shall cooperate in good faith to promptly engage the Accounting Expertits officers, pursuant to an engagement letter that requires the Accounting Expert to make all determinations in accordance with the definitions directors, employees, agents and terms contained herein. If any dispute is submitted advisors (including attorneys and accountants) (collectively, “Representatives”) reasonable access to the Accounting Expertpremises, Advisor P▇▇▇▇▇ books and GNL will records, and appropriate personnel of the Transferred Business reasonably requested by Seller for purposes of the preparation of the Final Closing Statement. Purchaser shall instruct its Representatives (including the Transferred Business Employees) to cooperate with, and promptly and completely respond to all reasonable requests and inquiries of, Seller and its Representatives, and, upon requestexecution of a customary access letter if required by Purchaser’s outside accountants, furnish to the Accounting Expert such provide Seller and its Representatives with reasonable access, upon reasonable notice, to all relevant work papers papers, schedules, memoranda and other documents and information relating prepared by Purchaser or its Affiliates or its Representatives (including its outside accountants) to the disputed issues as the Accounting Expert may request and are available to that Party extent such materials have been prepared by Purchaser or its independent accountants (including, with respect Affiliates or its Representatives and relate to GNL, any information the calculation of the Surviving Entities) and otherwise cooperate fully with Aggregate Asset Amount, Purchased Assets and/or the Accounting Expert’s review of the dispute, and both Advisor P▇▇▇▇▇ and GNL Assumed Liabilities in any respect (all such information shall be afforded the opportunity deemed Information of Purchaser and therefore subject to present the Accounting Expert (with a copy concurrently delivered to the other Party) material relating to the determination and to discuss the determination with the Accounting Expert. The Accounting Expert (acting as an expert and not as an arbitrator) shall resolve only those matters set forth in such Notice of Disagreement that remain in dispute after the thirty (30)-day resolution period. With respect to any disputed item, the Accounting Expert’s determination shall be no greater than the higher of the amounts calculated and submitted by Advisor P▇▇▇▇▇ and GNL, as the case may be, and no less than the lower of the amounts calculated and submitted by Advisor P▇▇▇▇▇ and GNL, as the case may be. It is the intent of the Parties that the process set forth in this Section 2.3(c) and the activities of the Accounting Expert in connection herewith are not intended to be and, in fact, are not arbitration and that no formal arbitration rules shall be followed (including rules with respect to procedures and discovery7.5). Advisor Parent and GNL shall use their commercially reasonable efforts to cause the Accounting Expert to resolve all such disagreements as soon as practicable but in no event later than sixty (60) days after submission of the disputed issues to the Accounting Expert. The resolution of the dispute by the Accounting Expert shall be final, binding and non-appealable on the Parties, except in the event of fraud or manifest error. The Closing Statement shall be modified if necessary to reflect such determination. The fees and expenses of the Accounting Expert shall be paid by Advisor Parent, on the one hand, and/or GNL, on the other hand, based upon the percentage which the portion of the contested amount not awarded to Advisor Parent or GNL, as applicable, bears to the amount actually contested by such Party, as determined by the Accounting Expert. As used in this Agreement, the term “Final Closing Statements” shall mean the Closing Statements described in Section 2.3(a), as prepared by Advisor P▇▇▇▇▇ and GNL and, if applicable, as subsequently adjusted to reflect any subsequent written agreement between the Parties with respect thereto, or if submitted to the Accounting Expert, the Closing Statements issued by, or reflecting the conclusions of, the Accounting Expert.
Appears in 1 contract
Sources: Purchase and Sale Agreement (Northwest Bancshares, Inc.)
Final Closing Statement. If either Advisor Within ninety (90) days following the Closing Date, Parent shall deliver to the Holder Representative a statement (the “Closing Statement” and, in its final and binding form as determined below, the “Final Closing Statement”) setting forth the Closing Consideration and each component thereof as of immediately prior to the Closing, including final determinations as to the amounts of (A) the Company Cash, (B) the Funded Debt and (C) the Closing Net Working Capital. The Final Closing Statement and the components thereof shall be prepared in accordance with GAAP on a basis consistent with the terms of this Agreement and the Agreed Accounting Principles. The Holder Representative shall cooperate as reasonably requested in connection with the preparation of the Closing Statement. During the thirty (30)-day period immediately following the Holder Representative’s receipt of the Closing Statement, the Holder Representative shall be permitted to review Parent’s working papers related to the preparation of the Closing Statement and determination of the Closing Consideration and the components thereof. The Closing Statement shall become final and binding upon the parties upon the earlier of (x) thirty (30) days following the Holder Representative’s receipt thereof, unless the Holder Representative shall give written notice of its disagreement (a “Notice of Disagreement”) to Parent prior to such date and (y) the date that Holder Representative notifies Parent of its acceptance thereof. Any Notice of Disagreement shall specify in reasonable detail the nature and dollar amount of any disagreement so asserted. The Closing Statement shall become final and binding upon the resolution in writing of all disagreements the parties may have with respect thereto (whether by the written agreement of the parties or GNL timely receive pursuant to the arbitration provisions set forth below). During the thirty (30) days following delivery of a Notice of Disagreement, Advisor Parent and GNL the Holder Representative shall attempt seek in good faith to resolve in writing any differences that which they may have with respect to all the matters specified in the Notice of Disagreement (and all discussions related thereto shallDisagreement. Following delivery of a Notice of Disagreement, unless otherwise agreed by Advisor Parent and GNL, its agents and Representatives shall be governed by Rule 408 of permitted to review the Federal Rules of Evidence (Holder Representative’s and any applicable similar state rule)), but if they do not reach a final resolution within thirty (30) days after the delivery of its Representatives’ working papers relating to the Notice of Disagreement. If, Advisor P▇▇▇▇▇ and GNL at the end of the thirty (30)-day period referred to above, the matters in dispute have not been fully resolved, then the parties shall submit to Ernst & Young LLP (or such dispute to the dispute resolution group other mutually agreed independent accountants of a U.S. national independent nationally recognized standing) (any such accounting firm mutually acceptable to Advisor Parent and GNL (firm, the “Accounting ExpertFirm”). Advisor Parent ) for review and GNL shall cooperate resolution of all matters (but only such matters) which remain in good faith to promptly engage dispute, and the Accounting ExpertFirm shall make a final determination of the Closing Consideration and the components thereof to the extent such amounts are in dispute, pursuant to an engagement letter that requires the Accounting Expert to make all determinations in accordance with the definitions guidelines and terms contained herein. If any dispute is submitted to the Accounting Expert, Advisor P▇▇▇▇▇ and GNL will promptly upon request, furnish to the Accounting Expert such work papers and other documents and information relating to the disputed issues as the Accounting Expert may request and are available to that Party or its independent accountants (including, with respect to GNL, any information of the Surviving Entities) and otherwise cooperate fully with the Accounting Expert’s review of the dispute, and both Advisor P▇▇▇▇▇ and GNL shall be afforded the opportunity to present the Accounting Expert (with a copy concurrently delivered to the other Party) material relating to the determination and to discuss the determination with the Accounting Expert. The Accounting Expert (acting as an expert and not as an arbitrator) shall resolve only those matters set forth in such Notice of Disagreement that remain in dispute after the thirty (30)-day resolution period. With respect to any disputed item, the Accounting Expert’s determination shall be no greater than the higher of the amounts calculated and submitted by Advisor P▇▇▇▇▇ and GNL, as the case may be, and no less than the lower of the amounts calculated and submitted by Advisor P▇▇▇▇▇ and GNL, as the case may be. It is the intent of the Parties that the process procedures set forth in this Section 2.3(c) Agreement. The parties will reasonably cooperate with the Accounting Firm during the term of its engagement. The Accounting Firm shall be provided reasonable access to the books, records and other relevant information of the Company, Parent and the activities of Holder Representative to the extent necessary to calculate the Closing Consideration. In resolving any matters in dispute, the Accounting Expert Firm may not assign a value to any item in connection herewith are not intended to be and, in fact, are not arbitration and that no formal arbitration rules shall be followed (including rules with respect to procedures and discovery). Advisor dispute greater than the greatest value for such item assigned by Parent and GNL shall use their commercially reasonable efforts to cause the Accounting Expert to resolve all such disagreements as soon as practicable but in no event later than sixty (60) days after submission of the disputed issues to the Accounting Expert. The resolution of the dispute by the Accounting Expert shall be final, binding and non-appealable on the Parties, except in the event of fraud or manifest error. The Closing Statement shall be modified if necessary to reflect such determination. The fees and expenses of the Accounting Expert shall be paid by Advisor ParentStatement, on the one hand, and/or GNLor the Holder Representative in the Notice of Disagreement, on the other hand, based upon or less than the percentage which the portion of the contested amount not awarded to Advisor smallest value for such item assigned by Parent or GNL, as applicable, bears to the amount actually contested by such Party, as determined by the Accounting Expert. As used in this Agreement, the term “Final Closing Statements” shall mean the Closing Statements described in Section 2.3(a)Statement, as prepared by Advisor P▇▇▇▇▇ and GNL and, if applicable, as subsequently adjusted to reflect any subsequent written agreement between on the Parties with respect theretoone hand, or if submitted to the Holder Representative in the Notice of Disagreement, on the other hand. The Accounting Expert, Firm’s determination shall be based solely on presentations by Parent and the Closing Statements issued by, or reflecting the conclusions of, the Accounting Expert.Holder Representative
Appears in 1 contract
Sources: Merger Agreement (CONMED Corp)