Common use of Closing Statement Dispute Clause in Contracts

Closing Statement Dispute. (i) If the Seller Representative disputes the accuracy of the calculations reflected in the Closing Statement, the Seller Representative shall provide written notice to Parent no later than thirty (30) days following delivery by Parent to the Seller Representative of the Closing Statement, setting forth those items that the Seller Representative disputes (the “Dispute Notice”). If the Seller Representative does not deliver a Dispute Notice within such thirty (30) day period, then the calculation of Final Equity Value reflected in the Closing Statement shall be deemed final, conclusive and binding on the parties in all respects; provided, however, that if Parent has not provided the access or information to the Seller Representative pursuant to Section 3.5(c), the deadline for delivery of a Dispute Notice shall be tolled until Parent provides such access or information pursuant to Section 3.5(c). Any items not specifically disputed in any Dispute Notice shall be deemed final, conclusive and binding on the parties in all respects. During the thirty (30) day period following delivery of a Dispute Notice, Parent and the Seller Representative shall negotiate in good faith to resolve such disputed items. Prior to the end of such thirty (30) day period, the Seller Representative may accept the Closing Statement by delivering written notice to that effect to Parent, in which case the Final Equity Value will be finally determined when such notice is given. If Parent and the Seller Representative, notwithstanding such good faith effort, fail to resolve the dispute set forth in the Dispute Notice within thirty (30) days after the Seller Representative delivers the Dispute Notice to Parent, then either Parent or the Seller Representative shall have the right to engage FTI Consulting, or if such firm is unable or unwilling to accept its appointment, an independent nationally recognized accounting firm with experience in such matters and that is mutually agreed upon by Xxxxxx and the Seller Representative (in either case, the “Accounting Firm”).The parties acknowledge and agree that the Federal Rules of Evidence Rule 408 and any similar state rules shall apply to Parent and Seller Representative (and any of their respective representatives) during any such negotiations and any subsequent dispute arising therefrom. Parent and the Seller Representative shall each prepare and submit to the Accounting Firm (A) a single written presentation (which presentations shall be limited to the items specifically submitted to the Accounting Firm for evaluation) within ten (10) Business Days after the engagement thereof (which the Accounting Firm shall promptly forward to Parent or the Seller Representative, as applicable, after both presentations have been received or the time for submission of presentations has expired); and (B) one written response within five (5) Business Days after receipt of each such presentation (which the Accounting Firm shall forward to Parent or Seller Representative, as applicable, after both responses have been received or the time for submission of responses has expired); provided, that Parent and the Seller Representative cannot assign a value to any disputed item that is more favorable to such party than what such party included in the Closing Statement or the Dispute Notice, as applicable, and cannot introduce new items into the dispute that were not previously subject to dispute. Parent and Seller Representative shall use reasonable best efforts to cause the Accounting Firm to render its written decision with respect to only the unresolved disputed items set forth in the Dispute Notice (and no other items), as soon as practicable thereafter, but no later than ten (10) Business Days from the final submission of the presentations from Parent and the Seller Representative, based solely upon such presentations and this Agreement. In resolving any disputed item, the Accounting Firm shall act as an expert and not as an arbitrator and the Accounting Firm may not assign a value to any item greater than the maximum value for such item claimed by either party or less than the minimum value of such item claimed by either party. The fees and expenses of the Accounting Firm shall be allocated to be paid by Xxxxxx, on the one hand, and the Seller Representative, on the other, based upon the percentage that the portion of the contested amount not awarded to each such party bears to the amount actually contested by such party, as determined by the Accounting Firm. For example, if the Seller Representative claims in a Dispute Notice that the Net Working Capital is $1,000 greater than the amount determined by Parent in the Closing Statement, and if the Accounting Firm ultimately resolves the dispute by awarding the Seller Representative $600 of the $1,000 contested, then the costs and expenses of the Accounting Firm will be allocated sixty percent (60%) (i.e., 600 ÷ 1,000) to Parent and forty percent (40%) (i.e., 400 ÷ 1,000) to the Seller Representative (on behalf of the Stockholders). Except as provided in the preceding sentence, all other costs and expenses incurred by the parties in connection with resolving any dispute hereunder before the Accounting Firm shall be borne by the party incurring such cost and expense. All determinations made by the Accounting Firm, absent fraud or manifest error, will be final, conclusive and binding on all parties to this Agreement in all respects. Neither Parent, Merger Sub, the Surviving Corporation, the Seller Representative, the Company and the Company Subsidiaries nor any of their respective Affiliates, shall have any ex parte conversations or meetings with the Accounting Firm in connection with the disputed items hereunder without the prior consent of the other parties.

Closing Statement Dispute. (i) If the Seller Representative disputes the accuracy of the calculations reflected in the Closing Statement, the Seller Representative shall provide written notice to Parent no later than thirty (30) Within 45 days following delivery receipt by Parent to the Seller Representative of the Closing Statement, setting forth those items that Seller shall deliver written notice to Buyer of any dispute it has with respect to the Seller Representative disputes (preparation or content of the “Dispute Notice”)Closing Statement, which notice shall include reasonable detail, including each disputed item or amount and Seller’s basis for disagreement therewith. If the Seller Representative does not deliver notify Buyer of a Dispute Notice dispute with respect to the 2 Closing Statement within such thirty (30) 45-day period, then the calculation of Final Equity Value reflected in the such Closing Statement shall will be deemed final, conclusive and binding on the parties in all respects; provided, however, that if Parent has not provided parties. In the access or information to the Seller Representative pursuant to Section 3.5(c), the deadline for delivery event of such notification of a Dispute Notice shall be tolled until Parent provides such access or information pursuant to Section 3.5(c). Any items not specifically disputed in any Dispute Notice shall be deemed finaldispute, conclusive Buyer and binding on the parties in all respects. During the thirty (30) day period following delivery of a Dispute Notice, Parent and the Seller Representative shall negotiate in good faith to resolve such disputed items. Prior to items and any such resolution between them shall be final, conclusive and binding on the end of such thirty (30) day period, the Seller Representative may accept the Closing Statement by delivering written notice to that effect to Parent, in which case the Final Equity Value will be finally determined when such notice is givenparties. If Parent Buyer and the Seller RepresentativeSeller, notwithstanding such good faith effort, fail to resolve the dispute set forth in the Dispute Notice such disputed items within thirty (30) 30 days after the Seller Representative delivers the Dispute Notice to Parentadvises Buyer of its objections, then either Parent or the Seller Representative shall have the right to engage FTI Consulting, or if such firm is unable or unwilling to accept its appointment, an independent nationally recognized accounting firm with experience in such matters and that is mutually agreed upon by Xxxxxx and the Seller Representative (in either case, the “Accounting Firm”).The parties acknowledge and agree that the Federal Rules of Evidence Rule 408 and any similar state rules shall apply to Parent Buyer and Seller Representative (jointly shall engage the Arbitration Firm to resolve only such disputed items and/or items still in dispute. In the event Buyer and any of their respective representatives) during any such negotiations Seller engage the Arbitration Firm, as promptly as practicable thereafter, Buyer and any subsequent dispute arising therefrom. Parent and the Seller Representative shall each prepare and submit a presentation to the Accounting Firm (A) a single written presentation (which presentations shall be limited to the items specifically submitted to the Accounting Firm for evaluation) within ten (10) Business Days after the engagement thereof (which the Accounting Firm shall promptly forward to Parent or the Seller Representative, as applicable, after both presentations have been received or the time for submission of presentations has expired); and (B) one written response within five (5) Business Days after receipt of each such presentation (which the Accounting Firm shall forward to Parent or Seller Representative, as applicable, after both responses have been received or the time for submission of responses has expired); provided, that Parent and the Seller Representative cannot assign a value to any disputed item that is more favorable to such party than what such party included in the Closing Statement or the Dispute Notice, as applicable, and cannot introduce new items into the dispute that were not previously subject to disputeArbitration Firm. Parent and Seller Representative shall use reasonable best efforts to cause the Accounting Firm to render its written decision with respect to only the unresolved disputed items set forth in the Dispute Notice (and no other items), as As soon as practicable thereafter, but no later than ten (10) Business Days from Buyer and Seller shall cause the final submission of the presentations from Parent and the Seller Representative, Arbitration Firm to render a decision based solely upon such presentations the presentation by Buyer and this AgreementSeller. In resolving any disputed item, the Accounting Arbitration Firm shall act as an expert be limited to picking from or between the values assigned to each item by Buyer and not as an arbitrator Seller, and the Accounting Firm may not assign a value to any item greater than outside of the maximum value range of values claimed for such item claimed by either party or less than the minimum value of such item claimed by either party. The fees and expenses of the Accounting Firm shall be allocated to be paid by XxxxxxBuyer, on the one hand, and the Seller RepresentativeSeller, on the otherother hand, based upon will each be responsible for the percentage that the portion of the contested amount not awarded to each such party bears to the amount actually contested by such party, as determined by the Accounting Firm. For example, if the Seller Representative claims in a Dispute Notice that the Net Working Capital is $1,000 greater than the amount determined by Parent in the Closing Statement, and if the Accounting Firm ultimately resolves the dispute by awarding the Seller Representative $600 of the $1,000 contested, then the costs fees and expenses of the Accounting Arbitration Firm will be allocated sixty percent in proportion to its loss, if any, in any such arbitration (e.g., if Buyer is awarded 60%) (i.e., 600 ÷ 1,000) to Parent and forty percent (40%) (i.e., 400 ÷ 1,000) to the Seller Representative (on behalf % of the Stockholdersdifference between its claim and the claim of Seller through the arbitration proceeding, it must pay 40% of the arbitrator’s fees, and Seller must pay the remaining 60% of the arbitrator’s fees). Except as provided in the preceding sentence, all other costs and expenses incurred by the parties in connection with resolving any dispute hereunder before the Accounting Firm shall be borne by the party incurring such cost and expense. All determinations made by the Accounting Firm, absent fraud or manifest error, Arbitration Firm will be final, conclusive and binding on all the parties to this Agreement in all respectsAgreement. Neither Parent, Merger SubNotwithstanding anything herein to the contrary, the Surviving Corporationdispute resolution mechanism contained in this Section 2.5(b) shall be the exclusive mechanism for resolving disputes regarding the Purchase Price adjustment, if any, and neither Buyer nor Seller shall be entitled to indemnification for Losses pursuant to Article X to the Seller Representative, extent taken into account in the Company and the Company Subsidiaries nor any of their respective Affiliates, shall have any ex parte conversations or meetings with the Accounting Firm in connection with the disputed items hereunder without the prior consent determination of the other partiesPurchase Price or for matters adjudicated by the Arbitration Firm.

Closing Statement Dispute. (i) If the Seller Representative disputes the accuracy of the calculations reflected in the Closing Statement, the Seller Representative shall provide written notice to Parent Purchaser no later than thirty forty-five (3045) days (such forty-five (45) day period, the “Review Period”) following delivery (or deemed delivery, as applicable) by Parent Purchaser to the Seller Representative of the Closing Statement, Statement setting forth those items that the Seller Representative disputes (the “Dispute Notice”). If the Seller Representative does not deliver a Dispute Notice within such thirty (30) day periodthe Review Period, then the calculation of Final Equity Value reflected in the Closing Statement shall be deemed final, conclusive and binding on the parties in all respects; provided, however, that if Parent the Review Period shall be extended by one day for each day during the Review Period that Purchaser has not provided the access or information to the Seller Representative pursuant to in accordance with Section 3.5(c2.5(d), the deadline for delivery of a Dispute Notice shall be tolled until Parent provides such access or information pursuant to Section 3.5(c). Any items not specifically disputed in any Dispute Notice shall be deemed final, conclusive and binding on the parties in all respects. During the thirty (30) day period following delivery of a Dispute Notice, Parent Purchaser and the Seller Representative shall negotiate in good faith to resolve such disputed items. Prior to the end of such thirty (30) day period, the Seller Representative may accept the Closing Statement by delivering written notice to that effect to Parent, in which case the Final Equity Value will be finally determined when such notice is given. If Parent Purchaser and the Seller RepresentativeSeller, notwithstanding such good faith effort, fail to resolve the dispute disputed items set forth in the Dispute Notice within thirty (30) days after the Seller Representative delivers the Dispute Notice to ParentPurchaser, then either Parent Purchaser or the Seller Representative shall have the right to jointly engage FTI ConsultingXxxxx Xxxxxxxx LLP, or if such firm is unable or unwilling to accept its appointment, an independent nationally recognized accounting firm with experience in such matters and that is mutually agreed upon by Xxxxxx Xxxxxxxxx and the Seller Representative (in either case, the “Accounting Firm”).The parties acknowledge Firm”), to resolve the disputed items (acting as an expert and agree that the Federal Rules of Evidence Rule 408 and any similar state rules shall apply to Parent not an arbitrator). As promptly as practicable thereafter, Purchaser and Seller Representative (and any of their respective representatives) during any such negotiations and any subsequent dispute arising therefrom. Parent and the Seller Representative shall each prepare and submit to the Accounting Firm (A) a single one written presentation (which presentations shall be limited only with respect to the unresolved disputed items specifically submitted to set forth in the Accounting Firm for evaluationDispute Notice) within ten (10) Business Days after the engagement thereof (which the Accounting Firm shall promptly forward to Parent or the Seller Representative, as applicable, after both presentations have been received or the time for submission of presentations has expired); and (B) one written response within five (5) Business Days after receipt of each such presentation (which to the Accounting Firm shall forward to Parent or Seller Representative, as applicable, after both responses have been received or the time for submission of responses has expired)other party’s written presentation; provided, that Parent Purchaser and the Seller Representative cannot assign a value to any disputed item that is more favorable to such party than what such party included in the Closing Statement or the Dispute Notice, as applicable; provided further, however, that copies of all such materials are concurrently provided to the other party and cannot introduce new items into that discussions with the dispute that were not previously subject to disputeAccounting Firm may only occur in the presence (including by telephone) of the other party. Parent As soon as practicable thereafter, but no later than thirty (30) days from the final submission of presentations from Purchaser and Seller, Purchaser and Seller Representative shall use reasonable best efforts to cause the Accounting Firm to render its written decision (including reasonable supporting detail thereto) with respect to only the unresolved disputed items set forth in the Dispute Notice (and no other items), as soon as practicable thereafter, but no later than ten (10) Business Days from the final submission of the presentations from Parent and the Seller Representative, based solely upon such the terms and provisions of this Agreement and the presentations by Purchaser and this AgreementSeller and not by way of an independent review (it being acknowledged and agreed that the failure of the Accounting Firm to strictly conform to any deadline or time period contained herein shall not render the determination of the Accounting Firm invalid and shall not be a basis for seeking to overturn any determination rendered by the Accounting Firm). No formal hearing with the Accounting Firm will be held and no discovery will be permitted; provided that at the Accounting Firm’s reasonable request, Seller and Purchaser may respond to requests for additional information or to answer questions from the Accounting Firm. In resolving any disputed item, the Accounting Firm shall act as an expert and not as an arbitrator and the Accounting Firm may not assign a value to any item greater than the maximum value for such item claimed by either party or less than the minimum value of such item claimed by either party. The determination of the Accounting Firm shall establish the Final Equity Value. Judgment may be entered upon the determination of the Accounting Firm in any court having jurisdiction over the party against which such determination is to be enforced. The fees and expenses of the Accounting Firm shall be allocated to be paid by XxxxxxPurchaser, on the one hand, and the Seller RepresentativeSeller, on the other, based upon the percentage that the portion of the contested amount not awarded to each such party bears to the amount actually contested by such party, as determined by the Accounting Firm. For example, if the Seller Representative claims in a Dispute Notice that the Net Working Capital is $1,000 greater than the amount determined by Parent Purchaser in the Closing Statement, and if the Accounting Firm ultimately resolves the dispute by awarding the Seller Representative $600 of the $1,000 contested, then the costs and expenses of the Accounting Firm will be allocated sixty percent (60%) % (i.e., 600 ÷ 1,000) to Parent Purchaser and forty percent (40%) % (i.e., 400 ÷ 1,000) to the Seller Representative (on behalf of the Stockholders)Seller. Except as provided in the preceding sentenceAbsent fraud or manifest mathematical error, all other costs and expenses incurred by the parties in connection with resolving any dispute hereunder before the Accounting Firm shall be borne by the party incurring such cost and expense. All determinations made by the Accounting Firm, absent fraud or manifest error, Firm will be final, conclusive and binding on all parties to this Agreement in all respects. Neither Parent, Merger Sub, the Surviving Corporation, the Seller Representative, the Company and the Company Subsidiaries nor any of their respective Affiliates, shall have any ex parte conversations or meetings with the Accounting Firm in connection with the disputed items hereunder without the prior consent of the other parties.

Closing Statement Dispute. (i) If Within forty-five (45) days following receipt by the Seller Representative disputes the accuracy of the calculations reflected in the Closing Statement, the Seller Representative shall provide deliver written notice to Parent no later than thirty (30) days following delivery by Parent Buyer of any dispute it has with respect to the Seller Representative content of the Closing Statement, setting forth those items that the Seller Representative disputes Statement (the a “Dispute Notice”), which Dispute Notice shall set forth in reasonable detail the nature and amount of such dispute. If the Seller Representative does not deliver a Dispute Notice with respect to the Closing Statement within such thirty (30) 45-day period, then the calculation of Final Equity Value reflected in the such Closing Statement shall will be deemed final, conclusive and binding on the parties in all respects; provided, however, that if Parent has not provided Parties. In the access or information to event the Seller Representative pursuant to Section 3.5(c), the deadline for delivery of timely delivers a Dispute Notice shall be tolled until Parent provides such access or information pursuant to Section 3.5(c). Any items not specifically disputed in any Dispute Notice shall be deemed finalBuyer, conclusive and binding on the parties in all respects. During the thirty (30) day period following delivery of a Dispute Notice, Parent Buyer and the Seller Representative shall negotiate in good faith to resolve such disputed items. Prior to the end of such thirty (30) day period, the Seller Representative may accept the Closing Statement by delivering written notice to that effect to Parent, in which case the Final Equity Value will be finally determined when such notice is given. If Parent Buyer and the Seller Representative, notwithstanding such good faith effort, fail to resolve the dispute set forth in the Dispute Notice such disputed items within thirty fifteen (3015) days after the Seller Representative delivers the Dispute Notice to ParentNotice, then either Parent or the Seller Representative shall have the right to engage FTI Consulting, or if such firm is unable or unwilling to accept its appointment, an independent nationally recognized accounting firm with experience in such matters and that is mutually agreed upon by Xxxxxx Buyer and the Seller Representative (jointly shall engage the Arbitration Firm to resolve only such disputed item(s) still in either case, dispute. In the “Accounting Firm”).The parties acknowledge event Buyer and agree that the Federal Rules of Evidence Rule 408 and any similar state rules shall apply to Parent and Seller Representative engage the Arbitration Firm, as promptly as practicable, and no later than fifteen (and any of their respective representatives15) during any such negotiations and any subsequent dispute arising therefrom. Parent days thereafter, Buyer and the Seller Representative shall each prepare and submit a written presentation to the Accounting Firm (A) a single written presentation (which presentations shall be limited to the items specifically submitted to the Accounting Firm for evaluation) within ten (10) Business Days after the engagement thereof (which the Accounting Firm shall promptly forward to Parent or the Seller Representative, as applicable, after both presentations have been received or the time for submission of presentations has expired); and (B) one written response within five (5) Business Days after receipt of each such presentation (which the Accounting Firm shall forward to Parent or Seller Representative, as applicable, after both responses have been received or the time for submission of responses has expired); provided, that Parent and the Seller Representative cannot assign a value to any disputed item that is more favorable to such party than what such party included in the Closing Statement or the Dispute Notice, as applicable, and cannot introduce new items into the dispute that were not previously subject to disputeArbitration Firm. Parent and Seller Representative shall use reasonable best efforts to cause the Accounting Firm to render its written decision with respect to only the unresolved disputed items set forth in the Dispute Notice (and no other items), as As soon as practicable thereafter, but no later than ten (10) Business Days from the final submission of the presentations from Parent Buyer and the Seller Representative, Representative shall instruct the Arbitration Firm to render a decision based solely upon such presentations the written presentation by Buyer and this Agreementthe Seller Representative as soon as reasonably possible (which the Parties agree should not be later than forty-five (45) days following the day on which the dispute is referred to the Arbitration Firm). In addition, Buyer and the Seller Representative shall instruct the Arbitration Firm to make all determinations in accordance with the Accounting Practices, notwithstanding the availability of other accounting methods, policies, practices or procedures under GAAP or otherwise. In resolving any disputed item, the Accounting Arbitration Firm (1) shall act as an expert and not as an arbitrator be limited to picking from or between the values assigned to each item by Buyer and the Accounting Firm Seller Representative in the written presentation submitted by each of Buyer and the Seller Representative to the Arbitration Firm, (2) may not assign a value to any item greater than outside of the maximum value range of values claimed for such item claimed by either party Buyer or less than the minimum value of such item claimed by either party. The fees and expenses of the Accounting Firm shall be allocated to be paid by Xxxxxx, on the one hand, and the Seller Representative, on (3) may not conduct an independent investigation, and (4) shall be required to make its determination in accordance with this Agreement (including the other, based upon the percentage that the portion definitions of the contested amount not awarded to each such party bears to the amount actually contested by such party, as determined by the Accounting Firm. For example, if the Seller Representative claims defined terms used in a Dispute Notice that the Net Working Capital is $1,000 greater than the amount determined by Parent in the Closing Statement, and if the Accounting Firm ultimately resolves the dispute by awarding the Seller Representative $600 of the $1,000 contested, then the costs and expenses of the Accounting Firm will be allocated sixty percent (60%) (i.e., 600 ÷ 1,000) to Parent and forty percent (40%) (i.e., 400 ÷ 1,000) to the Seller Representative (on behalf of the Stockholdersthis Section 2.5). Except as provided in the preceding sentence, all other costs and expenses incurred by the parties in connection with resolving any dispute hereunder before the Accounting Firm shall be borne by the party incurring such cost and expense. All determinations made by the Accounting Firm, absent fraud or manifest error, will be final, conclusive and binding on all parties to this Agreement in all respects. Neither Parent, Merger Sub, the Surviving Corporation, the Seller Representative, the Company and the Company Subsidiaries nor any of their respective Affiliates, shall have any ex parte conversations or meetings with the Accounting Firm in connection with the disputed items hereunder without the prior consent of the other parties.