Common use of Closing Date Inventory Adjustment Clause in Contracts

Closing Date Inventory Adjustment. (a) As promptly as practicable, but no later than sixty days after the Closing Date, Purchaser shall cause to be prepared and delivered to Seller a statement calculating the Closing Date Inventory (the “Closing Date Inventory Statement”). (b) If Seller disagrees with Purchaser’s calculation of the Closing Date Inventory set forth in the Closing Date Inventory Statement, Seller may, within ten Business Days after delivery of the Closing Date Inventory Statement, deliver a written notice to Purchaser disagreeing with such calculation and setting forth Seller’s calculation of the Closing Date Inventory. Any such notice of disagreement shall specify those items or amounts as to which Seller disagrees. If Seller does not deliver to Purchaser a written notice of disagreement within such ten Business Day period, then Sellers shall be deemed to have agreed to such Closing Date Inventory Statement. (c) If a notice of disagreement shall be duly delivered pursuant to Section 3.04(b), Purchaser and Seller shall, during the ten Business Days following such delivery, use their good faith and commercially reasonably efforts to reach agreement on the disputed items or amounts in order to determine, as may be required, the Closing Date Inventory. If during such period, Purchaser and Seller are unable to each such agreement, the disputed items be submitted to and determined by an independent accounting firm selected by Purchaser and Seller (the “Independent Auditor); provided, however, the Parties may mutually agree on an extended period to resolve any such dispute before submitting it to the Independent Auditor. In making such calculation, the Independent Auditor shall only consider those items or amounts in the Closing Date Inventory Statement and Seller’s calculation of Closing Date Inventory as to which Seller has disagreed. The Independent Auditor shall deliver to Purchaser and Seller, as promptly as practicable (but in any case no later than twenty Business Days from the date of the engagement of the Independent Auditor), a report setting forth such calculation. Such report shall be final and binding upon Purchaser and Seller. The cost of such review and report shall be borne equally by Purchaser and Seller; provided, however, that if the Independent Auditor’s report is substantially in agreement with either party’s calculations included in the Closing Date Inventory Statement, the cost of such review and report shall be borne solely by the other party. (d) Purchaser and Seller shall, and shall cause their respective representatives to, cooperate and assist in the preparation of the Closing Date Inventory Statement and the calculation of the Closing Date Inventory and in the conduct of the review referred to in this Section 3.04, including the making available, to the extent necessary, of books, records and personnel. (e) If the Final Closing Date Inventory is greater than the Inventory in the quantities listed on Exhibit 2.01(a)(v), then the Purchaser shall be obligated to pay to Seller an amount in cash equal to the Purchaser Closing Date Inventory Adjustment Amount within three Business Days after the Final Closing Date Inventory is determined. If the Final Closing Date Inventory is less than the Inventory in the quantities listed on Exhibit 2.01(a)(v), then the Seller shall be obligated to pay to Purchaser an amount in cash equal to the Seller Closing Date Inventory Adjustment Amount within three Business Days after the Final Closing Date Inventory is determined. Any payment that any party is obligated to make to the other party pursuant to this Section 3.04 shall be paid by wire transfer of immediately available funds into an account designated by such other party.

Closing Date Inventory Adjustment. (a) As promptly as practicable, but no later than sixty (60) days after the Closing Date, Purchaser shall cause to be prepared and delivered to Seller Sellers a statement calculating the Closing Date Inventory (the “"Closing Date Inventory Statement”"), including copies of any and all back-up or supporting data used in the preparation of the Closing Date Inventory Statement. (b) If Seller disagrees Sellers disagree with Purchaser’s 's calculation of the Closing Date Inventory set forth in the Closing Date Inventory Statementdelivered pursuant to Section 3.7(a), Seller Sellers may, within ten (10) Business Days after delivery of the Closing Date Inventory Statement, deliver a written notice to Purchaser disagreeing with such calculation and setting forth Seller’s Sellers' calculation of the Closing Date Inventory. Any such notice of disagreement shall specify those items or amounts as to which Seller disagreesSellers disagree, and Sellers shall be deemed to have agreed with all other items and amounts contained in the Closing Date Inventory Statement and the calculation of Closing Date Inventory delivered pursuant to Section 3.7(a). If Seller does Sellers do not deliver to Purchaser a written notice of disagreement within such ten (10) Business Day period, then Sellers shall be deemed to have agreed to such the Closing Date Inventory Statement. (c) If a notice of disagreement shall be duly delivered pursuant to Section 3.04(b3.7(b), Purchaser and Seller Sellers shall, during the ten (10) Business Days following such delivery, use their good faith and commercially reasonably reasonable efforts to reach agreement on the disputed items or amounts in order to determine, as may be required, the Closing Date Inventory. If during such period, Purchaser and Seller Sellers are unable to each reach such agreement, they shall promptly thereafter cause the Accountant to review this Agreement and the disputed items be submitted to and determined by an independent accounting firm selected by Purchaser and Seller (or amounts for the “Independent Auditor); provided, however, the Parties may mutually agree on an extended period to resolve any such dispute before submitting it to the Independent Auditorpurpose of calculating Closing Date Inventory. In making such calculation, the Independent Auditor Accountant shall consider only consider those items or amounts in the Closing Date Inventory Statement and Seller’s Sellers' calculation of Closing Date Inventory as to which Seller has Sellers have disagreed. The Independent Auditor Accountant shall deliver to Purchaser and SellerSellers, as promptly as practicable (but in any case no later than twenty (20) Business Days from the date of the engagement of the Independent AuditorAccountant), a report setting forth such calculation. Such report shall be final and binding upon Purchaser and SellerSellers. The cost of such review and report shall be borne equally by Purchaser on one hand and SellerSellers on the other hand; provided, however, that if the Independent Auditor’s Accountant's report is substantially in agreement with either party’s 's calculations included in the Closing Date Inventory Statement, the cost of such review and report shall be borne solely by the other party. (d) Purchaser and Seller Sellers shall, and shall cause their respective representatives to, cooperate and assist in the preparation of the Closing Date Inventory Statement and the calculation of the Closing Date Inventory and in the conduct of the review referred to in this Section 3.043.7, including the making available, available to the extent necessary, necessary of books, records records, work papers and personnel. (e) If the Final Closing Date Inventory is greater than the Inventory in the quantities listed on Exhibit 2.01(a)(v), then the Purchaser shall be obligated to pay to Seller an amount in cash equal to the Purchaser Closing Date Inventory Adjustment Amount within three Business Days after the Final Closing Date Inventory is determined. If the Final Closing Date Inventory is less than the Inventory in the quantities listed on Exhibit 2.01(a)(v), then the Seller shall be obligated to pay to Purchaser an amount in cash equal to the Seller Closing Date Inventory Adjustment Amount within three Business Days after the Final Closing Date Inventory is determined. Any payment that any party is obligated to make to the other party pursuant to this Section 3.04 shall be paid by wire transfer of immediately available funds into an account designated by such other party.