Examination and Review. Following the Closing, each Party shall give the other Party(ies) and any accountants and authorized representatives of such other Party(ies) access, as may be reasonably requested from time to time by such other Party(ies) to the extent reasonably necessary, to the books, records and personnel of the Seller and the Business relating to periods on or prior to the Closing Date for the sole purpose of preparing, reviewing and resolving any disputes relating to the calculation of the Actual Working Capital. If the Seller disagrees with the Buyer’s determination of the Actual Working Capital, the Seller shall, within thirty (30) days after receipt of the Buyer’s determination of the Actual Working Capital, notify the Buyer in writing of such disagreement (in reasonable detail describing the nature of the disagreement asserted), and the Buyer and the Seller thereafter shall negotiate in good faith to resolve any such disagreements. If the Buyer and the Seller are unable to resolve any such disagreements within thirty (30) days after the Seller delivers the foregoing notice of disagreement, the Buyer and the Seller shall submit any amounts remaining in dispute (the “Disputed Amounts”) to an impartial and mutually agreed upon accounting firm of regional reputation other than the Parent’s, the Seller’s or the Buyer’s accountants (the “Independent Accounting Firm”) for resolution within thirty (30) days. Buyer and Seller shall execute, if requested by the Independent Accounting Firm, a reasonable engagement letter, including customary indemnification provisions in favor of the Independent Accounting Firm. Buyer and Seller shall direct the Independent Accounting Firm to render a determination in writing as promptly as practicable and in any event within 30 days after its retention and the Parties shall cooperate with the Independent Accounting Firm during its engagement and make available the records and workpapers reasonably necessary for its review. The Independent Accounting Firm shall only review the Disputed Amounts and in no event shall the decision of the Independent Accounting Firm provide for a calculation of any Disputed Amount that is less than the lowest value for such Disputed Amount claimed by the Buyer or the Seller, as applicable, or greater than the largest amount for such Disputed Amount claimed by the Buyer or the Seller, as applicable. The Independent Accounting Firm shall only consider those items and amounts in the Disputed Amounts that the Seller and the Buyer identify as being items and amounts that remain in dispute between the Seller and the Buyer. The Independent Accounting Firm’s determination of any disputed item shall be based solely on written materials submitted by the Seller or the Buyer (or by in person telephonic conferences if mutually agreed by the Seller, the Buyer and the Independent Accounting Firm) and not by independent review. The resolution of the Disputed Amounts and the determination of the Actual Working Capital by the Independent Accounting Firm shall be final and binding on the Parties and may be entered as a final judgment in any court of competent jurisdiction. If the Seller does not notify the Buyer in writing of a disagreement with the Buyer’s determination of the Actual Working Capital within thirty (30) days after the Buyer’s delivery thereof, then the Buyer’s calculations thereof shall be final and binding on the Parties and may be entered as a final judgment in any court of competent jurisdiction. The first date upon which the Actual Working Capital has been definitively determined pursuant to this Section 1.6(d) shall be referred to herein as the “Determination Date”. The fees and expenses of the Independent Accounting Firm shall be borne fifty percent (50%), by the Seller Parties (jointly and severally), on the one hand, and fifty percent (50%) by the Buyer, on the other hand.
Appears in 1 contract
Samples: Asset Purchase Agreement (Financial Institutions Inc)
Examination and Review. Following If Seller disputes any matter or item set forth in the ClosingBuyer Closing Statement, each Party shall give the other Party(ies) and any accountants and authorized representatives of such other Party(ies) access, as may be reasonably requested from time to time by such other Party(ies) to the extent reasonably necessary, to the books, records and personnel of the Seller and the Business relating to periods on or prior to the Closing Date for the sole purpose of preparing, reviewing and resolving any disputes relating to the calculation of the Actual Working Capital. If the Seller disagrees with the Buyer’s determination of the Actual Working Capital, the Seller shallmay, within thirty (30) 30 days after receipt of the Buyer’s determination Buyer Closing Statement, provide to Buyer a written statement of such disputes (the Actual Working Capital“Statement of Objections”). If Seller does not deliver the Statement of Objections within such 30-day period, notify or if Seller otherwise accepts and agrees in writing that the Buyer in writing of such disagreement (in reasonable detail describing the nature of the disagreement asserted), and the Buyer and the Seller thereafter shall negotiate in good faith to resolve any such disagreements. If the Buyer and the Seller are unable to resolve any such disagreements within thirty (30) days after the Seller delivers the foregoing notice of disagreementClosing Statement is final, the Buyer and the Seller Closing Statement shall submit any amounts remaining in dispute (the “Disputed Amounts”) be deemed to an impartial and mutually agreed upon accounting firm of regional reputation other than the Parent’s, the have been accepted by Seller’s or the Buyer’s accountants (the “Independent Accounting Firm”) for resolution within thirty (30) days. Buyer and Seller shall execute, if requested by the Independent Accounting Firm, a reasonable engagement letter, including customary indemnification provisions in favor of the Independent Accounting Firm. Buyer and Seller shall direct the Independent Accounting Firm use good faith efforts to render a determination in writing as promptly as practicable and in any event jointly resolve such disputes within 30 days after its retention Buyer’s receipt of the Statement of Objections, which resolution, if achieved, shall be binding upon all parties to this Agreement and not subject to dispute or judicial review. If Buyer and Seller cannot resolve such disputes to their mutual satisfaction within such 30-day period, Buyer and Seller shall, within the Parties shall cooperate following ten days, jointly engage Resolution Economics LLC (the “Independent Accountant”) to review the Buyer Closing Statement together with the Independent Accounting Firm during its engagement Seller’s Statement of Objections and make available the records and workpapers reasonably necessary for its reviewany other relevant documents. The Independent Accountant shall calculate the Final Working Capital, Final Cash, Final Indebtedness and Final Transaction Expenses, using the items included in the Buyer Closing Statement that are not disputed by Buyer and Seller and shall make its own determination of any item that is disputed by Buyer and Seller, but otherwise in accordance with the Accounting Firm shall only review Principles and the Disputed Amounts and provisions of this Agreement; provided, however, that in no event shall any such determination by the decision Independent Accountant for any disputed item be outside the range of such item set forth in the Buyer Closing Statement and the Statement of Objections. The determination of the Independent Accountant shall be accompanied by a certificate of the Independent Accountant that its determination was prepared in accordance with the Accounting Firm provide for a calculation of any Disputed Amount that is less than the lowest value for Principles and this Agreement with respect to such Disputed Amount claimed by the Buyer or the Seller, as applicable, or greater than the largest amount for such Disputed Amount claimed by the Buyer or the Seller, as applicabledispute. The Independent Accounting Firm Accountant shall only consider those items report its conclusions as to such disputes and amounts in the Disputed Amounts that the Seller and the Buyer identify as being items and amounts that remain in dispute between the Seller and the Buyer. The Independent Accounting Firm’s determination of any disputed item shall be based solely on written materials submitted by the Seller or the Buyer (or by in person telephonic conferences if mutually agreed by the Seller, the Buyer and the Independent Accounting Firm) and not by independent review. The resolution of the Disputed Amounts and the its determination of the Actual Final Working Capital by Capital, Final Cash, Final Indebtedness Final Transaction Expenses, and the Independent Accounting Firm shall be final and binding on the Parties and may be entered as a final judgment in any court of competent jurisdiction. If the Seller does not notify the Buyer in writing of a disagreement with the Buyer’s determination of the Actual Working Capital within thirty (30) days after the Buyer’s delivery thereof, then the Buyer’s calculations thereof shall be final and binding on the Parties and may be entered as a final judgment in any court of competent jurisdiction. The first date upon which the Actual Working Capital has been definitively determined Purchase Price thereon pursuant to this Section 1.6(d) 2.04 no later than 30 days after it is engaged by Buyer and Seller, which determination shall be referred conclusive on all parties to herein as the “Determination Date”. The fees this Agreement and expenses of the Independent Accounting Firm shall be borne fifty percent (50%), by the Seller Parties (jointly and severally), on the one hand, and fifty percent (50%) by the Buyer, on the other handnot subject to further dispute or judicial review.
Appears in 1 contract
Samples: Membership Interest Purchase Agreement (Sunworks, Inc.)
Examination and Review. Following (i) Upon receipt of the ClosingPost-Closing Working Capital Statement or the Connecticut Earn-Out Statement, each Party the Company Board shall give have 30 days (the other Party(ies) and any accountants and authorized representatives of such other Party(ies) access, as may be reasonably requested from time to time by such other Party(ies“Review Period”) to review such Post-Closing Working Capital Statement or the extent reasonably necessary, to the books, records and personnel of the Seller and the Business relating to periods on or prior to the Closing Date for the sole purpose of preparing, reviewing and resolving any disputes relating to the calculation of the Actual Working CapitalConnecticut Earn-Out Statement. If the Seller disagrees with Company Board has accepted such Post-Closing Working Capital Statement or the Buyer’s determination Connecticut Earn-Out Statement in writing or have not given written notice to the Parent setting forth any objection of the Actual Company Board to such Post-Closing Working CapitalCapital Statement or the Connecticut Earn-Out Statement, as the case may be (a “Statement of Objections”), on or before the last day of the Review Period, then such Post-Closing Working Capital Statement or the Connecticut Earn-Out Statement, as the case may be, shall be final and binding upon the parties. In the event that the Company Board timely delivers a Statement of Objections, the Seller shall, within thirty (30) days after receipt of the Buyer’s determination of the Actual Working Capital, notify the Buyer in writing of such disagreement (in reasonable detail describing the nature of the disagreement asserted), Parent and the Buyer and the Seller thereafter Company Board shall negotiate in good faith to resolve any such disagreements. If objection within 30 days following the Buyer and receipt by the Seller are unable to resolve any such disagreements within thirty (30) days after Parent of the Seller delivers the foregoing notice Statement of disagreement, the Buyer and the Seller shall submit any amounts remaining in dispute Objections (the “Disputed AmountsNegotiation Period”). The Statement of Objections shall reasonably explain any objection to the Post-Closing Working Capital Statement or the Connecticut Earn-Out Statement and the amounts or line items thereof as to which the Company Board disagrees (collectively, the “Objected Items”) and to an impartial the extent then known to the Company Managers shall include the Dollar amount of each such objection and mutually agreed upon accounting firm the Company Board’s proposed calculation of regional reputation other than each such amount. The Company Board shall provide reasonable supporting documentation for each Objected Item concurrently with the Parent’sdelivery of the Statement of Objections. Except for Objected Items, the Seller’s Company Board shall be deemed to have accepted all other amounts contained in the Post-Closing Working Capital Statement or the Buyer’s accountants (Connecticut Earn-Out Statement, and all such amounts shall be considered final and binding for all purposes hereunder. If, during the “Independent Accounting Firm”) for resolution within thirty (30) days. Buyer Negotiation Period, the Company Board and Seller shall execute, if requested by the Independent Accounting Firm, a reasonable engagement letter, including customary indemnification provisions Parent agree in favor writing upon any of the Independent Accounting Firm. Buyer and Seller shall direct the Independent Accounting Firm to render a determination in writing as promptly as practicable and in any event within 30 days after its retention and the Parties shall cooperate with the Independent Accounting Firm during its engagement and make available the records and workpapers reasonably necessary for its review. The Independent Accounting Firm shall only review the Disputed Amounts and in no event shall the decision of the Independent Accounting Firm provide for a calculation of any Disputed Amount that is less than the lowest value for such Disputed Amount claimed by the Buyer or the Seller, as applicable, or greater than the largest amount for such Disputed Amount claimed by the Buyer or the Seller, as applicable. The Independent Accounting Firm shall only consider those items and amounts in the Disputed Amounts that the Seller and the Buyer identify as being items and amounts that remain in dispute between the Seller and the Buyer. The Independent Accounting Firm’s determination of any disputed item shall be based solely on written materials submitted by the Seller or the Buyer (or by in person telephonic conferences if mutually agreed by the SellerObjected Items, the Buyer amounts so determined shall no longer be considered to be Objected Items and the Independent Accounting Firm) and not by independent review. The resolution of the Disputed Amounts and the determination of the Actual Working Capital by the Independent Accounting Firm shall will be final and binding on the Parties and may be entered as a final judgment in any court of competent jurisdictionparties for all purposes hereunder. If the Seller does not notify Parent and the Buyer Company Board are unable to reach an agreement in writing of a disagreement with on any Objected Item on or before the Buyer’s determination last day of the Actual Working Capital within thirty (30) days after the Buyer’s delivery thereofNegotiation Period, then the Buyer’s calculations thereof Parent or the Company Board may submit such matter to the Accounting Referee, and if so submitted, the Parent and the Company Board shall be final and binding on the Parties and may be entered execute such engagement letter or other agreements as a final judgment in any court of competent jurisdiction. The first date upon which the Actual Working Capital has been definitively determined pursuant to this Section 1.6(d) shall be referred to herein as the “Determination Date”. The fees and expenses of the Independent Accounting Firm shall be borne fifty percent (50%), reasonably requested by the Seller Parties (jointly and severally), on the one hand, and fifty percent (50%) by the Buyer, on the other handAccounting Referee.
Appears in 1 contract
Samples: Agreement and Plan of Merger (Green Thumb Industries Inc.)
Examination and Review. Following the Closing, each Party shall give the other Party(ies) Party and any accountants and authorized representatives of such other Party(ies) accessParty reasonable access during normal business hours, as may be reasonably requested from time to time by such other Party(ies) Party if, and to the extent extent, reasonably necessary, to the books, records and personnel (to the extent involved in the preparation of the Seller Closing Statement) and to the books and records of the Company and the Business relating to periods on or prior to the Closing Date for the sole purpose of preparing, reviewing and resolving any disputes relating to the calculation of the Actual Working Capital. If the Seller disagrees with the Buyer’s determination any of the Actual amounts set forth on the Closing Balance Sheet and Closing Statement. The Closing Balance Sheet and the Closing Statement (and the proposed determinations of Closing Payment, NWC Surplus or NWC Deficit, Closing Indebtedness, Transaction Expenses, Closing Cash and Working CapitalCapital reflected on the Closing Statement) will be final, conclusive and binding on the Parties unless Seller shall, notifies Buyer in writing within thirty (30) days (the “Objection Deadline Date”) after receipt of the Buyer’s determination of the Actual Closing Payment, NWC Surplus or NWC Deficit, Closing Cash, Working Capital, notify Closing Indebtedness and Transaction Expenses that Seller disagrees with Buyer’s determination of any such amounts (a “Notice of Disagreement”). If Seller timely delivers a Notice of Disagreement, only those matters specified in such Notice of Disagreement shall be deemed to be in dispute (such matters, the Buyer “Disputed Amounts”) and all such Disputed Amounts shall be based only on (i) mathematical or clerical errors, (ii) that the amounts included in writing or absent from the Closing Statement were not determined in accordance with the definitions of such disagreement Closing Payment, NWC Surplus or NWC Deficit, Closing Cash, Working Capital, Closing Indebtedness and Transaction Expenses, or (in reasonable detail describing iii) the nature calculation of the disagreement asserted), amounts included in the Closing Statement were not determined in accordance with this Agreement. The Notice of Disagreement shall specify what Seller reasonably believes is the correct amount for each Disputed Amount and be accompanied by a reasonably detailed explanation. Any component of the calculations set forth in the Closing Statement that is not the subject of a timely delivered Notice of Disagreement by Seller shall be final and binding upon Buyer and Seller. If Seller delivers a Notice of Disagreement by the Objection Deadline Date, Buyer and Seller thereafter shall negotiate in good faith to resolve any such disagreementsDisputed Amounts. If the Buyer and the Seller are unable to resolve any such disagreements all Disputed Amounts within thirty (30) days after the Seller delivers the foregoing notice of disagreementNotice Of Disagreement, the Buyer and the Seller shall submit any amounts remaining in dispute (the “Disputed Amounts”) Amounts to an impartial and mutually agreed upon accounting nationally recognized firm of regional reputation independent certified public accountants other than the Parent’s, the Seller’s or the Buyer’s accountants and reasonably acceptable to Seller and Buyer (the “Independent Accounting Firm”) for resolution within thirty (30) daysdays following expiration of the thirty (30) day negotiation period. Each of Seller and Buyer shall furnish to the Independent Accounting Firm such information and Seller shall execute, if documents as may be requested by the Independent Accounting FirmFirm and may also furnish to the Independent Accounting Firm such other information and documents as such Party deems relevant, in each case with copies being given to the other Party substantially simultaneously. The Independent Accounting Firm shall, at its discretion or at the written request of Seller or Buyer, conduct a reasonable engagement letterconference with both of Seller and Buyer concerning the Disputed Items and each of Buyer and Seller shall have the right to present additional documents, including customary indemnification provisions materials and other information and to have present its Representatives at such conference. No Party or its Representatives shall be permitted to engage in favor of any ex-parte communications (whether written or oral) with the Independent Accounting Firm. Buyer and Seller shall direct the Independent Accounting Firm to render a determination in writing as promptly as practicable and in any event within 30 days after its retention and the Parties shall cooperate with the Independent Accounting Firm during its engagement and make available the records and workpapers reasonably necessary for its review. The Independent Accounting Firm shall only review the Disputed Amounts (and shall not investigate any other matter independently) and in no event shall the decision of the Independent Accounting Firm provide for a calculation of any Disputed Amount that is less than the lowest value for such Disputed Amount claimed by the Buyer or the Seller, as applicable, or greater than the largest highest amount for such Disputed Amount claimed by the Buyer or the Seller, as applicable. The Independent Accounting Firm shall only consider those items Firm’s determination will be (i) in writing, (ii) furnished to each of Buyer and amounts in Seller within thirty (30) days after Seller’s and Buyer’s respective final calculations of the Disputed Amounts that the Seller and the Buyer identify as being items and amounts that remain in dispute between the Seller and the Buyer. The Independent Accounting Firm’s determination of any disputed item shall be based solely on written materials have been submitted by the Seller or the Buyer (or by in person telephonic conferences if mutually agreed by the Seller, the Buyer and to the Independent Accounting Firm, (iii) limited in scope to whether such final calculations of the Disputed Amounts were done in accordance with Section 1.5, the related definitions herein and/or contained mathematical or clerical errors and not (iv) accompanied by independent a reasonably detailed basis for its determination in respect of each Disputed Amount under its review. .The resolution of the Disputed Amounts and the determination of the Actual Closing Cash, Working Capital Capital, Closing Indebtedness and Transaction Expenses by the Independent Accounting Firm Firm, absent fraud, intentional misconduct (including a deliberately misleading submission by a Party or its Representatives) or manifest error, shall be final and binding on the Parties Buyer and may be entered as a final judgment in any court of competent jurisdiction. If the Seller does not notify the Buyer in writing of a disagreement with the Buyer’s determination of the Actual Working Capital within thirty (30) days after the Buyer’s delivery thereof, then the Buyer’s calculations thereof shall be final and binding on the Parties and may be entered as a final judgment in any court of competent jurisdiction. The first date upon which the Actual Closing Cash, Working Capital Capital, Closing Indebtedness and Transaction Expenses has been definitively determined pursuant to this Section 1.6(d1.5(c) shall be referred to herein as the “Determination Date”. The Parties agree that the procedures set forth in this Section 1.5(c) for resolving disputes with respect to the Closing Statement, Closing Payment, NWC Surplus or NWC Deficit, Closing Cash, Working Capital, Closing Indebtedness and Transaction Expenses shall be the sole and exclusive method for resolving any such disputes. The fees and disbursements of the Independent Accounting Firm with respect to a Notice of Disagreement shall be allocated between Buyer and Seller, based upon a fraction, the numerator of which is the portion of the aggregate monetary amount of the Disputed Amounts not awarded to the applicable party and the denominator of which is the aggregate monetary amount of the Disputed Amounts, as determined by the Independent Accounting Firm in its final determination. For example, if Seller objects to the Closing Statement calculations in the net amount of $1,000,000, and the Independent Accounting Firm determines that Seller has a valid claim for $400,000 of the $1,000,000, Seller shall bear 60% of the fees and expenses of the Independent Accounting Firm and Buyers shall bear 40% of the fees and expenses of the Independent Accounting Firm. Each of the Parties to this Agreement agrees to use its commercially reasonable efforts to cooperate with the Independent Accounting Firm (including by executing a customary engagement letter reasonably acceptable to it) and to cause the Independent Accounting Firm to resolve any such dispute as soon as practicable after the commencement of the Independent Accounting Firm’s engagement. The Independent Accounting Firm shall act as an expert, not as an arbitrator, in resolving such Disputed Amounts; provided that the Independent Accounting Firm shall be borne fifty percent (50%), by entitled to the Seller Parties (jointly and severally), on the one hand, and fifty percent (50%) by the Buyer, on the other handimmunities of an arbitrator.
Appears in 1 contract
Samples: Membership Interest Purchase Agreement (Amneal Pharmaceuticals, Inc.)
Examination and Review. Following After receipt of the ClosingClosing Working Capital Statement, each Party Sellers shall give have 30 days (the other Party(ies) and any accountants and authorized representatives of such other Party(ies) access, as may be reasonably requested from time to time by such other Party(ies“Review Period”) to review the extent reasonably necessaryClosing Working Capital Statement. During the Review Period, Sellers shall have full access to the books, books and records and personnel of the Seller Company and the Business relating to periods on Subsidiaries, provided, that such access shall be in a manner that does not interfere with the normal business operations of Buyer, the Company, or the Subsidiaries. On or prior to the Closing Date for last day of the sole purpose of preparingReview Period, reviewing and resolving any disputes relating Sellers may object to the calculation Closing Working Capital Statement by delivering to Buyer a written statement setting forth Sellers’ objections in reasonable detail, indicating each disputed item or amount and the basis for Sellers’ disagreement therewith (the “Statement of Objections”). If Sellers fail to deliver the Statement of Objections before the expiration of the Actual Review Period, the Closing Working CapitalCapital Statement and the Post-Closing Adjustment, as the case may be, reflected in the Closing Working Capital Statement shall be deemed to have been accepted by Sellers. If Sellers deliver the Seller disagrees with Statement of Objections before the Buyer’s determination expiration of the Actual Working CapitalReview Period, the Seller shall, within thirty (30) days after receipt of the Buyer’s determination of the Actual Working Capital, notify the Buyer in writing of such disagreement (in reasonable detail describing the nature of the disagreement asserted), and the Buyer and the Seller thereafter Sellers shall negotiate in good faith to resolve any such disagreements. If the Buyer and the Seller are unable to resolve any such disagreements objections within thirty (30) 30 days after the Seller delivers delivery of the foregoing notice Statement of disagreementObjections (the “Resolution Period”), and, if the same are so resolved within the Resolution Period, the Post-Closing Adjustment and the Closing Working Capital Statement with such changes as may have been previously agreed in writing by Buyer and Sellers, shall be final and binding. If Sellers and Buyer fail to reach an agreement with respect to all of the Seller shall submit matters set forth in the Statement of Objections before expiration of the Resolution Period, then any amounts remaining in dispute (the “Disputed Amounts” and any amounts not so disputed, the “Undisputed Amounts”) shall be submitted for resolution to an a mutually agreeable impartial and mutually agreed upon accounting nationally recognized firm of regional reputation other than the Parent’s, the Seller’s or the Buyer’s independent certified public accountants (the “Independent Accounting FirmAccountant”) for resolution within thirty (30) days. Buyer who, acting as experts and Seller not arbitrators, shall executeresolve the Disputed Amounts only and make any adjustments to the Post-Closing Adjustment, if requested by as the Independent Accounting Firmcase may be, a reasonable engagement letter, including customary indemnification provisions in favor of the Independent Accounting Firm. Buyer and Seller shall direct the Independent Accounting Firm to render a determination in writing as promptly as practicable and in any event within 30 days after its retention and the Parties Closing Working Capital Statement. The parties hereto agree that all adjustments shall cooperate with the Independent Accounting Firm during its engagement and make available the records and workpapers reasonably necessary for its reviewbe made without regard to materiality. The Independent Accounting Firm Accountant shall only review decide the Disputed Amounts specific items under dispute by the parties and in no event shall the their decision of the Independent Accounting Firm provide for a calculation of any each Disputed Amount that is less than must be within the lowest value for range of values assigned to each such Disputed Amount claimed by the Buyer or the Seller, as applicable, or greater than the largest amount for such Disputed Amount claimed by the Buyer or the Seller, as applicable. The Independent Accounting Firm shall only consider those items and amounts item in the Disputed Amounts that the Seller Closing Working Capital Statement and the Buyer identify as being items and amounts that remain in dispute between the Seller and the Buyer. The Independent Accounting Firm’s determination Statement of any disputed item shall be based solely on written materials submitted by the Seller or the Buyer (or by in person telephonic conferences if mutually agreed by the SellerObjections, the Buyer and the Independent Accounting Firm) and not by independent review. The resolution of the Disputed Amounts and the determination of the Actual Working Capital by the Independent Accounting Firm shall be final and binding on the Parties and may be entered as a final judgment in any court of competent jurisdiction. If the Seller does not notify the Buyer in writing of a disagreement with the Buyer’s determination of the Actual Working Capital within thirty (30) days after the Buyer’s delivery thereof, then the Buyer’s calculations thereof shall be final and binding on the Parties and may be entered as a final judgment in any court of competent jurisdiction. The first date upon which the Actual Working Capital has been definitively determined pursuant to this Section 1.6(d) shall be referred to herein as the “Determination Date”respectively. The fees and expenses of the Independent Accounting Firm Accountant shall be borne fifty percent (50%), paid by the Seller Parties (jointly and severally)Sellers, on the one hand, and fifty percent (50%) by the BuyerBxxxx, on the other hand, based upon the percentage that the amount actually contested but not awarded to Sellers or Buyer, respectively, bears to the aggregate amount actually contested by Sxxxxxx and Buyer. The Independent Accountant shall make a determination as soon as practicable within 30 days (or such other time as the parties hereto shall agree in writing) after their engagement, and their resolution of the Disputed Amounts and their adjustments to the Closing Working Capital Statement and/or the Post-Closing Adjustment shall be conclusive and binding upon the parties hereto.
Appears in 1 contract
Examination and Review. Following the Closing, each Party shall give the other Party(ies) and any accountants and authorized representatives of such other Party(ies) access, as may be reasonably requested from time to time by such other Party(ies) to the extent reasonably necessary, to the books, records and personnel of the Seller and the Business relating to periods on or prior to the Closing Date for the sole purpose of preparing, reviewing and resolving any disputes relating to the calculation of the Actual Working Capital. If the Seller disagrees with the Buyer’s determination of the Actual Working Capital, the Seller shall, within Within thirty (30) days after following receipt by Sellers of the Buyer’s determination Post-Closing Statement, Sellers may deliver written notice to the Company of any dispute Sellers may have with respect to the preparation or content of the Actual Working Capital, notify the Buyer in writing of such disagreement (Post-Closing Statement. Such notice must describe in reasonable detail describing the nature disputed items (including Sellers’ calculation of the disagreement asserted), amount of the disputed item) contained in the Post-Closing Statement and the Buyer basis for any such dispute (the “Dispute Notice”). In the event Sellers deliver a Dispute Notice, any items not disputed in such Dispute Notice shall be deemed to have been accepted by Sellers and will be final, conclusive and binding on the Seller thereafter parties. If Sellers fail to deliver a Dispute Notice with respect to the Post-Closing Statement within such thirty (30)-day period, such Post-Closing Statement shall negotiate in be deemed to have been accepted by Sellers and will be final, conclusive and binding on the parties. In the event a Dispute Notice is delivered within the thirty (30)-day review period, the Company and Sellers shall use good faith reasonable efforts to negotiate to resolve any such disagreementsdispute. If the Buyer Company and the Seller are unable Sellers, notwithstanding such good faith effort, fail to resolve any such disagreements all of the items set forth in the Dispute Notice within thirty (30) days after the Seller delivers delivery by Sellers of such Dispute Notice (or such longer period as may be agreed by the foregoing notice of disagreementCompany and Seller), the Buyer and the Seller shall submit then any amounts remaining in dispute (the “Disputed Amounts”) shall be submitted for resolution by the Company and Sellers to an impartial and nationally recognized independent accounting firm to be mutually agreed upon accounting firm of regional reputation other than the Parent’s, the Seller’s or the Buyer’s accountants (the “Independent Accounting FirmAccountant”) for resolution within thirty (30) days), who, acting as experts and not arbitrators, shall resolve the Disputed Amounts only. Buyer The Company and Seller Sellers shall execute, if requested by the Independent Accounting Firm, a reasonable engagement letter, including customary indemnification provisions in favor of the Independent Accounting Firm. Buyer and Seller shall each direct the Independent Accounting Firm Accountant to render a written determination in writing as promptly as practicable and in any event within 30 days after its retention and the Parties shall cooperate with the Independent Accounting Firm during its engagement and make available the records and workpapers reasonably necessary for its review. The Independent Accounting Firm shall only review the Disputed Amounts and in no event shall the decision of the Independent Accounting Firm provide for a calculation of any Disputed Amount that is less than the lowest value for such Disputed Amount claimed by the Buyer or the Seller, as applicable, or greater than the largest amount for such Disputed Amount claimed by the Buyer or the Seller, as applicable. The Independent Accounting Firm shall only consider those items and amounts in the Disputed Amounts that the Seller and the Buyer identify as being items and amounts that remain in dispute between the Seller and the Buyer. The Independent Accounting Firm’s determination of any disputed item shall be based solely on written materials submitted by the Seller or the Buyer (or by in person telephonic conferences if mutually agreed by the Seller, the Buyer and the Independent Accounting Firm) and not by independent review. The resolution of the Disputed Amounts and the determination of the Actual Working Capital by the Independent Accounting Firm shall be final and binding on the Parties and may be entered as a final judgment in any court of competent jurisdiction. If the Seller does not notify the Buyer in writing of a disagreement with the Buyer’s determination of the Actual Working Capital within thirty (30) days after the Buyerof its retention. The Independent Accountant’s delivery thereof, then the Buyer’s calculations thereof determination shall be final and binding based solely on the Parties Post-Closing Statement, the Dispute Notice and may be entered as a final judgment in any court supporting materials submitted therewith by the Company and Sellers (i.e., not on the basis of competent jurisdictionan independent review) and on the terms and provisions of this Agreement. The first determination of the Independent Accountant shall be binding and conclusive on the parties and not subject to appeal. The Independent Accountant shall only decide the specific items under dispute by the parties and the decision of the Independent Accountant for each Disputed Amount must be within the range of values assigned to each such item in the Post-Closing Statement and the Dispute Notice. The date upon on which the Actual Closing Net Working Capital has been definitively Capital, Closing Cash, Closing Indebtedness and Unpaid Company Transaction Expenses are finally determined pursuant to in accordance with this Section 1.6(d2.2(c) shall be is hereinafter referred to herein as the “Determination Date”. The .” All fees and expenses of the Independent Accounting Firm Accountant shall be borne fifty percent (50%), allocated by the Seller Parties (jointly Independent Accountant and severally)apportioned between Sellers, on the one hand, and fifty percent (50%) by the BuyerCompany, on the other hand, in the same proportion that the aggregate amount of such resolved Disputed Items so submitted to the Independent Accountant that is unsuccessfully disputed by each such party (as finally determined by the Independent Accountant) bears to the total amount of such resolved Disputed Items so submitted.
Appears in 1 contract
