Common use of Determination by Independent Accountant Clause in Contracts

Determination by Independent Accountant. Philips shall have thirty (30) days from its receipt of Newco’s Objection to review and respond to Newco’s Objection. If Philips and Newco are unable to resolve all of their disagreements with respect to the proposed adjustments set forth in Newco’s Objection within fifteen (15) days following the completion of Philips’ review of Newco’s Objection, each of them shall have the right to refer any remaining disagreements (the “Remaining Disagreements”) to the Independent Accountant which, acting as experts and not as arbitrators, shall determine, on the basis set forth in and in accordance with Section 2.7(a), and only with respect to the Remaining Disagreements so submitted, whether and to what extent, if any, the Closing Date Net Cash Statement, the Closing Date Net Working Capital Statement, the Closing Date Net Cash Position and/or the Closing Date Net Working Capital require adjustment. Newco and Philips shall instruct the Independent Accountant to deliver its written determination to Newco and Philips no later than thirty (30) days after the Remaining Disagreements are referred to the Independent Accountant. The Independent Accountant’s determination shall be conclusive and binding upon Newco and Philips and their respective Affiliates, absent manifest error. The fees and disbursements of the Independent Accountant shall be borne by Philips and Newco in the proportion that the aggregate value of those Remaining Disagreements that the Independent Accountant determines require adjustment bears to the aggregate value of those Remaining Disagreements that the Independent Accountant determines not to require adjustment. Philips and Newco shall make readily available to the Independent Accountant all relevant books and records and any work papers (including those of the Parties’ respective accountants, subject to customary hold-harmless agreements) relating to the Closing Date Financial Statements and Newco’s Objection and all other items reasonably requested by the Independent Accountant in connection therewith.

Determination by Independent Accountant. Philips If a Sellers’ Objection shall have be duly delivered pursuant to Section 3.2(b), Buyer and Sellers’ Representatives shall, during the thirty (30) days from its receipt of Newco’s Objection following such delivery, work in good faith to review and respond resolve any differences that they may have with respect to Newco’s the matters in the Sellers’ Objection. If Philips any of Buyer’s and Newco are unable to resolve all of their Sellers’ Representatives’ disagreements with respect to the proposed adjustments set forth in Newco’s Sellers’ Objection within fifteen remain after thirty (1530) days following Buyer’s receipt of the completion of PhilipsSellers’ review of Newco’s Objection, each of them shall have has the right to refer any such remaining disagreements (the “Remaining Disagreements”) to the Independent Accountant whichwho, acting as experts expert and not as arbitratorsarbitrator, shall determine, on the basis set forth in and in accordance with this Section 2.7(a3.2(c), the Applicable Accounting Standards and the applicable defined terms set forth herein), and only with respect to the Remaining Disagreements such remaining disagreements so submitted, whether and to what extent, if any, the Closing Date Net Cash StatementWorking Capital, the Closing Date Net Working Capital StatementCash, the Closing Date Net Cash Position and/or Company Indebtedness or the Closing Date Net Working Capital require Company Transaction Expenses requires adjustment. Newco Sellers’ Representatives and Philips Buyer shall instruct the Independent Accountant to deliver its written determination to Newco Sellers’ Representatives and Philips Buyer no later than thirty (30) days after the Remaining Disagreements remaining disagreements are referred to the Independent Accountant. The Final Closing Net Working Capital, Final Closing Cash, Final Closing Company Indebtedness or Final Closing Company Transaction Expenses (if in dispute) shall be equal to either (i) the Closing Net Working Capital, the Closing Cash, the Closing Company Indebtedness or the Closing Company Transaction Expenses as asserted by Sellers’ Representatives in the Sellers’ Objection or (ii) the Closing Net Working Capital, the Closing Cash, the Closing Company Indebtedness or the Closing Company Transaction Expenses as asserted by Buyer in the Post-Closing Statement, respectively, whichever is closer to the Closing Net Working Capital, the Closing Cash, the Closing Company Indebtedness or the Closing Company Transaction Expenses, respectively, calculated based on the values of the disputed items as finally determined by the Independent Accountant’s determination . The Final Closing Net Working Capital, Final Closing Cash, Final Closing Company Indebtedness or Final Closing Company Transaction Expenses so determined shall be conclusive and binding upon Newco and Philips and their respective Affiliates, the Parties absent manifest error. The fees and disbursements of the Independent Accountant shall be borne by Philips the Party whose Final Adjusted Cash Component, calculated based upon the Closing Net Working Capital, Closing Cash, Closing Company Indebtedness and Newco Closing Company Transaction Expenses, in each case as asserted by such Party resulting in the proportion that the aggregate value of those Remaining Disagreements that the Independent Accountant determines require adjustment bears to the aggregate value of those Remaining Disagreements that the Independent Accountant determines not to require adjustment. Philips and Newco shall make readily available to the Independent Accountant all relevant books and records and any work papers (including those of the Parties’ respective accountants, subject to customary hold-harmless agreements) relating to the Closing Date Financial Statements and Newco’s Objection and all other items reasonably requested determination by the Independent Accountant in connection therewithaccordance with this Section 3.2(c), is farther from the Final Adjusted Cash Component as determined in accordance with paragraph (d) of this Section 3.2 than the other Party.

Determination by Independent Accountant. Philips If a Sellers’ Objection shall have be duly delivered pursuant to Section 3.2(b), Buyer and Sellers’ Representative shall, during the thirty (30) days from its receipt of Newco’s Objection following such delivery, work in good faith to review and respond resolve any differences that they may have with respect to Newco’s the matters in the Sellers’ Objection. If Philips any of Buyer’s and Newco are unable to resolve all of their Sellers’ Representative’s disagreements with respect to the proposed adjustments set forth in Newco’s Sellers’ Objection within fifteen remain after thirty (1530) days following Buyer’s receipt of the completion of PhilipsSellers’ review of Newco’s Objection, each of them shall have has the right to refer any such remaining disagreements (the “Remaining Disagreements”) to the Independent Accountant whichwho, acting as experts expert and not as arbitratorsarbitrator, shall determine, on the basis set forth in and in accordance with this Section 2.7(a)3.2(c) and the Applicable Accounting Standards, and only with respect to the Remaining Disagreements such remaining disagreements so submitted, whether and to what extent, if any, the Closing Date Net Cash StatementWorking Capital, the Closing Date Net Working Capital StatementCash, the Closing Date Net Cash Position and/or Company Indebtedness or the Closing Date Net Working Capital require Company Transaction Expenses requires adjustment. Newco Sellers’ Representative and Philips Buyer shall instruct the Independent Accountant to deliver its written determination to Newco Sellers’ Representative and Philips Buyer no later than thirty (30) days after the Remaining Disagreements remaining disagreements are referred to the Independent Accountant. The Final Closing Net Working Capital, Final Closing Cash, Final Closing Company Indebtedness or Final Closing Company Transaction Expenses (if in dispute) shall be equal to the Closing Net Working Capital, Closing Cash, Closing Company Indebtedness or Closing Company Transaction Expenses, respectively, calculated based on the values of the disputed items as finally determined by the Independent Accountant’s ; provided that the Independent Accountant, in resolving such disputed items, (i) shall not assign to any disputed item a value greater than the greatest value for such disputed item assigned by Buyer or the Sellers’ Representative, or less than the smallest value for such disputed item assigned by Buyer or the Sellers’ Representative and (ii) shall make its determination based solely on the Applicable Accounting Standards and the terms and definitions set forth herein. The Final Closing Net Working Capital, Final Closing Cash, Final Closing Company Indebtedness or Final Closing Company Transaction Expenses so determined shall be conclusive and binding upon Newco and Philips and their respective Affiliates, the Parties absent manifest errorerror (and enforceable by a court of competent jurisdiction). The All fees and disbursements expenses of the Independent Accountant shall be borne by Philips and Newco in the proportion that the aggregate value of those Remaining Disagreements that the Independent Accountant determines require adjustment bears to the aggregate value of those Remaining Disagreements that the Independent Accountant determines not to require adjustment. Philips and Newco shall make readily available to the Independent Accountant all relevant books and records and any work papers (including those of the Parties’ respective accountants, subject to customary hold-harmless agreements) relating to the Closing Date Financial Statements and Newco’s Objection and all other items reasonably requested work, if any, to be performed by the Independent Accountant under this Section 3.2 shall be borne pro rata as between Buyer, on the one hand, and the Sellers’ Representative, on the other hand, in connection therewithproportion to the allocation of the value of the amounts in dispute as between Buyer and the Sellers’ Representative (set forth in the written submissions to the Independent Accountant) made by the Independent Accountant such that the party prevailing on the greater dollar value of such disputes pays the lesser proportion of the fees and expenses.