Common use of Agreement on Closing Statement Clause in Contracts

Agreement on Closing Statement. (i) Within fifteen (15) days of the receipt by Parent of the Shareholders’ Representative’s Report, the Shareholders’ Representative and Parent shall endeavor in good faith to agree on any matters in dispute. Any matter that Parent chooses not to dispute on the Shareholders’ Representative’s Report within such fifteen (15) day period shall be deemed accepted by Parent. (ii) If Parent and the Shareholders’ Representative are unable to agree on any remaining matters in dispute within fifteen (15) days after Parent’s receipt of the Shareholders’ Representative’s Report, then the matters in dispute will be submitted for resolution to a nationally recognized certified public accounting firm that has not performed accounting, tax or auditing services for Parent, the Company or any of their respective Affiliates during the previous five (5) years, as may be mutually acceptable to Parent and the Shareholders’ Representative (any of the foregoing selected to resolve the dispute, an “Appraiser”),which shall within thirty (30) days of such submission determine and issue a written report to the Shareholders’ Representative and Parent upon such disputed items (in no event enlarging or adding any new or additional item to those set forth in the Shareholders’ Representative’s Report and not accepted by Parent), and such written decision shall be final and binding upon the parties hereto. The Shareholders’ Representative and Parent shall cooperate reasonably with each other and each other’s representatives to enable the Appraiser to render a written decision as promptly as possible. The fees and expenses of the Appraiser shall be borne by the Shareholders’ Representative and Parent in inverse proportion to their respective success on the merits and such allocation of fees and expenses shall be calculated by the Appraiser and shall be final and binding on the parties. At any time, Parent and the Shareholders’ Representative may agree to settle any objections raised in the Shareholders’ Representative’s Report, which agreement shall be in writing and binding upon each of Parent and the Shareholders’ Representative with respect to the subject matter of any such objection so resolved. (iii) The Draft Closing Statement, revised to incorporate the resolution of any matters in dispute pursuant to Sections 2.12(c), 2.12(d)(i) and/or 2.12(d)(ii), as applicable, or the Closing Notice in the event that Parent does not deliver a Draft Closing Statement not later than sixty (60) days following the Closing Date, is referred to as the “Closing Statement.” The Closing Statement shall have the legal effect of an arbitral award and shall be final, binding and conclusive on the parties hereto.

Agreement on Closing Statement. (i) Within fifteen (15) days Business Days of the receipt by Parent Buyer of the ShareholdersSellers’ Representative’s Report, the ShareholdersSellers’ Representative and Parent Buyer shall endeavor in good faith to agree on any matters in dispute, and any such resolution shall be final and binding on Buyer and the Sellers. Any matter that Parent Buyer chooses not to dispute on the ShareholdersSellers’ Representative’s Report within such fifteen (15) day Business Day period shall be deemed accepted by ParentBuyer. (ii) If Parent Buyer and the ShareholdersSellers’ Representative are unable to agree on any remaining matters that were disputed in dispute the Sellers’ Representative’s Report within fifteen (15) days Business Days after ParentBuyer’s receipt of the ShareholdersSellers’ Representative’s Report, then the matters contained in the Sellers’ Representative’s Report in dispute will be submitted for resolution to a nationally recognized certified public accounting firm that has not performed accountingErnst & Young (the “Appraiser”). The Appraiser shall be given reasonable access to all relevant financial information, tax books, records, schedules, memoranda and other documents prepared or auditing services for Parent, the Company reviewed by Buyer or any of their respective Affiliates during its representatives that are relevant to the previous five (5) yearsDraft Closing Statement, as may be mutually acceptable and to Parent all personnel, including accounting personnel, involved in the preparation of the Draft Closing Statement, in connection with its calculation of the Closing Cash Consideration Inputs. The Appraiser shall use its accounting expertise to calculate, based solely on the written submissions of Buyer, on the one hand, and the ShareholdersSellers’ Representative, on the other hand, and not by independent investigation, the Closing Cash Consideration Inputs and shall be instructed that its calculation (i) must be made in accordance with the standards and definitions in this Agreement, and (ii) with respect to each item in dispute, absent a finding by the Appraiser of manifest error or fraud, must be within the range of values established for such amount as determined by reference to the value assigned to such amount by the Sellers’ Representative (any of in the foregoing selected to resolve Sellers’ Representative’s Report and by Buyer in the dispute, an “Appraiser”),which shall within Draft Closing Statement. Within thirty (30) days of such submission determine and submission, Appraiser shall issue a written report to the ShareholdersSellers’ Representative and Parent Buyer upon such disputed items (in no event enlarging or adding any new or additional item to those set forth in the ShareholdersSellers’ Representative’s Report and not accepted by ParentBuyer), and such written decision shall be final and binding upon the parties hereto. The ShareholdersSellers’ Representative and Parent Buyer shall cooperate reasonably with each other and each other’s representatives to enable the Appraiser to render a written decision as promptly as possible. The fees and expenses of the Appraiser shall be borne by the ShareholdersSellers (and paid by the Sellers’ Representative on their behalf) and Parent Buyer in inverse proportion to their respective success on the merits merits, and such allocation of fees and expenses shall be calculated by the Appraiser and shall be final and binding on the parties. At any time, Parent Buyer and the ShareholdersSellers’ Representative may agree to settle any objections raised in the ShareholdersSellers’ Representative’s Report, which agreement shall be in writing and binding upon each of Parent Buyer and the Shareholders’ Representative Sellers with respect to the subject matter of any such objection so resolved. (iii) The Draft Closing Statement, revised to incorporate the resolution of any matters in dispute pursuant to Sections 2.12(c2.9(c), 2.12(d)(i2.9(d)(i) and/or 2.12(d)(ii2.9(d)(ii), as applicable, or the Closing Notice in the event that Parent does not deliver a Draft Closing Statement not later than sixty (60) days following the Closing Date, is referred to as the “Closing Statement.” The Closing Statement shall have the legal effect of an arbitral award and shall be final, binding and conclusive on the parties hereto.

Agreement on Closing Statement. (i) Within fifteen (15) days of the receipt by Parent of the ShareholdersStockholders’ Representative’s Report, the ShareholdersStockholders’ Representative and Parent shall endeavor in good faith to agree on any matters in dispute. Any matter that Parent chooses not to dispute on the ShareholdersStockholders’ Representative’s Report within such fifteen (15) day period shall be deemed accepted by Parent. (ii) If Parent and the ShareholdersStockholders’ Representative are unable to agree on any remaining matters in dispute within fifteen (15) days after Parent’s receipt of the ShareholdersStockholders’ Representative’s Report, then the matters in dispute will be submitted for resolution to the San Diego office of a nationally recognized certified public accounting firm that has not performed accounting, tax or auditing services for Parent, the Company or any of their respective Affiliates during the previous five (5) years, as may be mutually acceptable to Parent and the Shareholders’ Stockholder’s Representative (any of the foregoing selected to resolve the dispute, an “Appraiser”),which shall within thirty (30) days of such submission determine and issue a written report to the ShareholdersStockholders’ Representative and Parent upon such disputed items (in no event enlarging or adding any new or additional item to those set forth in the ShareholdersStockholders’ Representative’s Report and not accepted by Parent), and such written decision shall be final and binding upon the parties hereto. The ShareholdersStockholders’ Representative and Parent shall cooperate reasonably with each other and each other’s representatives to enable the Appraiser to render a written decision as promptly as possible. The fees and expenses of the Appraiser shall be borne by the ShareholdersStockholders’ Representative and Parent in inverse proportion to their respective success on the merits and such allocation of fees and expenses shall be calculated by the Appraiser and shall be final and binding on the parties. At any time, Parent and the ShareholdersStockholders’ Representative may agree to settle any objections raised in the ShareholdersStockholders’ Representative’s Report, which agreement shall be in writing and binding upon each of Parent and the ShareholdersStockholders’ Representative with respect to the subject matter of any such objection so resolved. (iii) The Draft Closing Statement, revised to incorporate the resolution of any matters in dispute pursuant to Sections 2.12(c2.14(c), 2.12(d)(i2.14(d)(i) and/or 2.12(d)(ii2.14(d)(ii), as applicable, or the Closing Notice in the event that Parent does not deliver a Draft Closing Statement not later than sixty (60) days following the Closing Date, is referred to as the “Closing Statement.” The Closing Statement shall have the legal effect of an arbitral award and shall be final, binding and conclusive on the parties hereto.

Agreement on Closing Statement. (i) Within fifteen (15) days of the receipt by Parent of the ShareholdersStockholders’ Representative’s Report, the ShareholdersStockholders’ Representative and Parent shall endeavor in good faith to agree on any matters in dispute, and any such resolution shall be final and binding on Parent, the Company, and the Company Holders. Any matter that Parent chooses not to dispute on the ShareholdersStockholders’ Representative’s Report within such fifteen (15) day period shall be deemed accepted by Parent. (ii) If Parent and the ShareholdersStockholders’ Representative are unable to agree on any remaining matters that were disputed in dispute the Stockholders’ Representative’s Report within fifteen (15) days after Parent’s receipt of the ShareholdersStockholders’ Representative’s Report, then the matters contained in the Stockholders’ Representative’s Report in dispute will be submitted for resolution to the Kansas City office of a nationally recognized certified public accounting firm that has not performed accounting, tax or auditing services for Parent, the Company or any of their respective Affiliates during the previous five (5) years, as may be mutually acceptable to Parent and the ShareholdersStockholders’ Representative (any of the foregoing selected to resolve the dispute, an “Appraiser”),which Appraiser”). The Appraiser shall be given reasonable access to all relevant financial information, books, records, schedules, memoranda and other documents prepared or reviewed by Parent or any of its representatives that are relevant to the Draft Closing Statement, and to all personnel, including accounting personnel, involved in the preparation of the Draft Closing Statement, in connection with its calculation of the Initial Cash Merger Consideration Inputs. The Appraiser shall use its accounting expertise to calculate, based solely on the written submissions of Parent, on the one hand, and the Stockholders’ Representative, on the other hand, and not by independent investigation, the Initial Cash Merger Consideration Inputs and shall be instructed that its calculation (i) must be made in accordance with the standards and definitions in this Agreement, and (ii) with respect to each item in dispute, absent a finding by the Appraiser of manifest error or fraud, must be within the range of values established for such amount as determined by reference to the value assigned to such amount by the Stockholders’ Representative in the Stockholders’ Representative’s Report and by Parent in the Draft Closing Statement. Within thirty (30) days of such submission determine and submission, Appraiser shall issue a written report to the ShareholdersStockholders’ Representative and Parent upon such disputed items (in no event enlarging or adding any new or additional item to those set forth in the ShareholdersStockholders’ Representative’s Report and not accepted by Parent), and such written decision shall be final and binding upon the parties hereto. The ShareholdersStockholders’ Representative and Parent shall cooperate reasonably with each other and each other’s representatives to enable the Appraiser to render a written decision as promptly as possible. The fees and expenses of the Appraiser shall be borne by the ShareholdersStockholders’ Representative and Parent in inverse proportion to their respective success on the merits merits, with the Company Holders’ share of any such fees and expenses being paid first from the Representative Reimbursement Amount, and such allocation of fees and expenses shall be calculated by the Appraiser and shall be final and binding on the parties. At any time, Parent and the ShareholdersStockholders’ Representative may agree to settle any objections raised in the ShareholdersStockholders’ Representative’s Report, which agreement shall be in writing and binding upon each of Parent and the ShareholdersStockholders’ Representative with respect to the subject matter of any such objection so resolved. (iii) The Draft Closing Statement, revised to incorporate the resolution of any matters in dispute pursuant to Sections 2.12(c2.14(c), 2.12(d)(i2.14(d)(i) and/or 2.12(d)(ii2.14(d)(ii), as applicable, or the Closing Notice in the event that Parent does not deliver a Draft Closing Statement not later than sixty (60) days following the Closing Date, is referred to as the “Closing Statement.” The Closing Statement shall have the legal effect of an arbitral award and shall be final, binding and conclusive on the parties hereto.

Agreement on Closing Statement. (i) Within fifteen thirty (1530) days of the receipt by Parent of the ShareholdersStockholders’ Representative’s Report, the ShareholdersStockholders’ Representative and Parent shall endeavor in good faith to agree on any matters in dispute. Any matter that Parent chooses not to dispute on the ShareholdersStockholders’ Representative’s Report within such fifteen thirty (1530) day period shall be deemed accepted by Parent. (ii) If Parent and the ShareholdersStockholders’ Representative are unable to agree on any remaining matters in dispute within fifteen thirty (1530) days after Parent’s receipt of the ShareholdersStockholders’ Representative’s Report, then the matters in dispute will be submitted for resolution to the Philadelphia office of a nationally recognized certified public accounting firm that has not performed accounting, tax or auditing services for Parent, the Company or any of their respective Affiliates during the previous five (5) years, as may be mutually acceptable to Parent and the Shareholders’ Stockholder’s Representative (any of the foregoing selected to resolve the dispute, an “Appraiser”),which Appraiser”), which shall within thirty (30) days of such submission determine and issue a written report to the ShareholdersStockholders’ Representative and Parent upon such disputed items (in no event selecting a position for an item that is higher or lower than those proposed by the parties or enlarging or adding any new or additional item to those set forth in the ShareholdersStockholders’ Representative’s Report and not accepted by Parent), and such written decision shall be based on the definitions set forth in this Agreement and shall be final and binding upon the parties hereto. The ShareholdersStockholders’ Representative and Parent shall cooperate reasonably with each other and each other’s representatives to enable the Appraiser to render a written decision as promptly as possible. The fees and expenses of the Appraiser shall be borne by the ShareholdersStockholders’ Representative and Parent in inverse proportion to their respective success on the merits and such allocation of fees and expenses shall be calculated by the Appraiser and shall be final and binding on the parties. At any time, Parent and the ShareholdersStockholders’ Representative may agree to settle any objections raised in the ShareholdersStockholders’ Representative’s Report, which agreement shall be in writing and binding upon each of Parent and the ShareholdersStockholders’ Representative with respect to the subject matter of any such objection so resolved. (iii) The Draft Closing Statement, revised to incorporate the resolution of any matters in dispute pursuant to Sections 2.12(c2.16(c), 2.12(d)(i2.16(d)(i) and/or 2.12(d)(ii2.16(d)(ii), as applicable, or the Closing Notice in the event that Parent does not deliver a Draft Closing Statement not later than sixty (60) days following the Closing Date, is referred to as the “Closing Statement.” The Closing Statement shall have the legal effect of an arbitral award and shall be final, binding and conclusive on the parties hereto. The Closing Statement shall be used to make the adjustments provided for in Section 2.16(e).