Dispute Resolution Mechanism. If the parties do not obtain a final resolution of a dispute regarding the determination of the Merger Consideration Adjustment under Section 2.1(e) hereof within thirty (30) days after Buyer has received the statement of objections from the Stockholders, the Buyer and the Stockholders will select an accounting firm mutually acceptable to them to resolve any remaining objections. If Buyer and Stockholders are unable to agree on the choice of an accounting firm, Buyer will select a nationally-recognized, independent certified public accounting firm. The determination of any accounting firm so selected will be set forth in writing and will be conclusive and binding upon the parties. Buyer will revise the determination of the Merger Consideration Adjustment, as the case may be and as appropriate, to reflect the resolution of any objections thereto. (i) In the event the parties submit any unresolved objections with respect to the determination of the amount of the Merger Consideration Adjustment to an accounting firm for resolution as provided herein, Buyer and Stockholders will share responsibility for the fees and expenses of the accounting firm as follows: (A) if the accounting firm agrees with Buyer's determination of the amount of the Merger Consideration Adjustment (with the amount so determined by the Buyer referred to herein as the "Buyer's Value"), Stockholders will be responsible for all of the fees and expenses of the accounting firm incurred in connection with the preparation of the determination with which the accounting firm agrees; (B) if the accounting firm agrees with the Stockholders' determination of the amount of the Merger Consideration Adjustment (with the amount so determined by the Stockholders referred to herein as the " Stockholders' Value"), Buyer will be responsible for all of the fees and expenses of the accounting firm incurred in connection with the preparation of the determination with which the accounting firm agrees; and (C) if the accounting firm determines that the amount of the Merger Consideration Adjustment (the "Actual Value") is different from either the Buyer's Value or the Stockholders' Value, the party whose determination is closest to the Actual Value will be responsible for that fraction of the fees and expenses of the accounting firm equal to (x) the difference between the closest party's determination and the Actual Value over (y) the greater of the difference between (I) the Buyer's Value and the Stockholders' Value and (II) the other party's determination (which is furthest from the Actual Value) and the Actual Value, and the other party will be responsible for the remainder of the fees and expenses. (ii) Each party will make the work papers and back-up materials used in determining the Buyer's Value and Stockholders' Value available to the other party and their accountants and other representatives at reasonable times and upon reasonable notice at any time during (I) the preparation of Buyer's Value or Stockholders' Value, (II) the review by either party of the other party's determination of the Merger Consideration Adjustment, and (III) the resolution by the parties of any objections thereto.
Appears in 1 contract
Samples: Merger Agreement (Aim Group Inc)
Dispute Resolution Mechanism. If the parties do not obtain a final resolution of a dispute regarding the determination of the Merger Consideration Adjustment under Section 2.1(e) hereof within thirty (30) days after Seller and Buyer has received the statement of objections from the Stockholders, the Buyer and the Stockholders will select an accounting firm mutually acceptable to them have been unable to resolve any remaining objections. If Buyer and Stockholders are unable to agree on the choice of an accounting firm, Buyer will select a nationally-recognized, independent certified public accounting firm. The determination of any accounting firm so selected will be matters set forth in writing the Objection Notice within the Initial Resolution Period, either party may submit such remaining disputed matters to, and will such remaining disputed matters shall be conclusive fully, finally, and binding upon exclusively resolved by Duff & Xxxxxx (the parties. Buyer will revise the determination of the Merger Consideration Adjustment“Independent Accountant”), as the case may be and as appropriateor, if such firm is unable or unwilling to reflect the resolution of act, any objections thereto.
(i) In the event the parties submit any unresolved objections with respect to the determination of the amount of the Merger Consideration Adjustment to an nationally or regionally recognized independent accounting firm for resolution as provided herein, reasonably agreed to by Seller and Buyer and Stockholders will share responsibility for (the “Alternate Accountant”). The fees and expenses of the accounting firm Independent Accountant or the Alternate Accountant (as follows:
the case may be, the “Reviewing Party”) incurred in the resolution of the disputed matter(s) set forth in the Objection Notice shall be borne equally by Seller and Buyer. In the event of a dispute involving an Objection Notice, the Reviewing Party shall determine (Aand written notice thereof shall be given to Seller and Buyer) as promptly as practicable following the date on which the Proposed Balance Sheet and other items required in connection therewith as specified in Section 2.04(c) above are delivered to the Reviewing Party, based solely on written submissions detailing the disputed items and forwarded to it, only with respect to the disputed items submitted to the Reviewing Party, whether and to what extent (if any) the accounting firm agrees with Buyer's Proposed Balance Sheet, Proposed Net Working Capital, or Proposed Cash Amount require adjustment, and provide a written explanation in reasonable detail of each such required adjustment, including the basis therefor. The Reviewing Party shall only decide the specific items under dispute by the parties and its decision for each disputed item must be in the range of values assigned to each such item by Seller and Buyer at the time of the retention of the Reviewing Party. The procedures of this Section 2.04(d) are exclusive and the determination of the amount Reviewing Party shall be final and binding. The decision rendered pursuant to this Section 2.04(d) may be filed as a judgment in any court of the Merger Consideration Adjustment (with the amount so determined by the Buyer referred to herein as the "Buyer's Value"), Stockholders will be responsible for all of the fees and expenses of the accounting firm incurred in connection with the preparation of the determination with which the accounting firm agrees;
(B) if the accounting firm agrees with the Stockholders' determination of the amount of the Merger Consideration Adjustment (with the amount so determined by the Stockholders referred to herein as the " Stockholders' Value"), Buyer will be responsible for all of the fees and expenses of the accounting firm incurred in connection with the preparation of the determination with which the accounting firm agrees; and
(C) if the accounting firm determines that the amount of the Merger Consideration Adjustment (the "Actual Value") is different from either the Buyer's Value or the Stockholders' Value, the party whose determination is closest to the Actual Value will be responsible for that fraction of the fees and expenses of the accounting firm equal to (x) the difference between the closest party's determination and the Actual Value over (y) the greater of the difference between (I) the Buyer's Value and the Stockholders' Value and (II) the other party's determination (which is furthest from the Actual Value) and the Actual Value, and the other party will be responsible for the remainder of the fees and expensescompetent jurisdiction.
(ii) Each party will make the work papers and back-up materials used in determining the Buyer's Value and Stockholders' Value available to the other party and their accountants and other representatives at reasonable times and upon reasonable notice at any time during (I) the preparation of Buyer's Value or Stockholders' Value, (II) the review by either party of the other party's determination of the Merger Consideration Adjustment, and (III) the resolution by the parties of any objections thereto.
Appears in 1 contract
Samples: Stock Purchase Agreement (Patterson Companies, Inc.)
Dispute Resolution Mechanism. If the parties do not obtain a final resolution of a dispute regarding the determination of the Merger Consideration Purchase Price Adjustment under Section 2.1(e1.2(c) hereof within thirty (30) days after Buyer has received the statement of objections from the Sole Stockholders, the Buyer and the Sole Stockholders will select an accounting firm mutually acceptable to them to resolve any remaining objections. If Buyer and Sole Stockholders are unable to agree on the choice of an accounting firm, Buyer will select a nationally-recognized, independent certified public accounting firm. However, the Buyer may not choose any certified public accounting firm that it has used in the five (5) years immediately prior to the Closing Date. The determination of any accounting firm so selected will be set forth in writing and will be conclusive and binding upon the parties. Buyer will revise the determination of the Merger Consideration Purchase Price Adjustment, as the case may be and as appropriate, to reflect the resolution of any objections thereto.
(i) In the event the parties submit any unresolved objections with respect to the determination of the amount of the Merger Consideration Purchase Price Adjustment to an accounting firm for resolution as provided herein, Buyer and Sole Stockholders will share responsibility for the fees and expenses of the accounting firm as follows:
(A) if the accounting firm agrees with Buyer's determination of the amount of the Merger Consideration Purchase Price Adjustment (with the amount so determined by the Buyer referred to herein as the "Buyer's ValueBUYER'S VALUE"), Sole Stockholders will be responsible for all of the fees and expenses of the accounting firm incurred in connection with the preparation of the determination with which the accounting firm agrees;
(B) if the accounting firm agrees with the Sole Stockholders' determination of the amount of the Merger Consideration Purchase Price Adjustment (with the amount so determined by the Sole Stockholders referred to herein as the " Stockholders"SOLE STOCKHOLDERS' ValueVALUE"), Buyer will be responsible for all of the fees and expenses of the accounting firm incurred in connection with the preparation of the determination with which the accounting firm agrees; and
(C) if the accounting firm determines that the amount of the Merger Consideration Purchase Price Adjustment (the "Actual ValueACTUAL VALUE") is different from either the Buyer's Value or the Sole Stockholders' Value, the party whose determination is closest to the Actual Value will be responsible for that fraction of the fees and expenses of the accounting firm equal to (x) the difference between the closest party's determination and the Actual Value over (y) the greater of the difference between (I) the Buyer's Value and the Sole Stockholders' Value and (II) the other party's determination (which is furthest from the Actual Value) and the Actual Value, and the other party will be responsible for the remainder of the fees and expenses.
(ii) Each party will make the work papers and back-up materials used in determining the Buyer's Value and Sole Stockholders' Value available to the other party and their accountants and other representatives at reasonable times and upon reasonable notice at any time during (I) the preparation of Buyer's Value or Sole Stockholders' Value, (II) the review by either party of the other party's determination of the Merger Consideration Purchase Price Adjustment, and (III) the resolution by the parties of any objections thereto.
Appears in 1 contract
Dispute Resolution Mechanism. If In any instance under this Article 7 where the parties do not obtain a final resolution Fair Market Value of a dispute regarding any Qualified Venture Property Interest is to be determined pursuant to this Section 7.6, the determination following procedures shall be followed in connection therewith: the Common Fund, within 15 days after the procedures in this Section 7.6 are invoked, shall, by notice to Boston Properties, select an Acceptable Appraiser (the Acceptable Appraiser so selected, the "Common Fund Appraiser") to perform an MAI appraisal of such Qualified Venture Property Interest and determine the Fair Market Value of such Qualified Venture Property Interest. The Fair Market Value of such Qualified Venture Property Interest shall be so determined as of the Merger Consideration Adjustment under Section 2.1(e) hereof within thirty anticipated closing date for the corresponding Elected Promote Interest (30) days after Buyer has received the statement of objections from the Stockholdersor if such closing already occurred, the Buyer and the Stockholders will select an accounting firm mutually acceptable to them to resolve any remaining objections. If Buyer and Stockholders are unable to agree on the choice of an accounting firm, Buyer will select a nationally-recognized, independent certified public accounting firm. The determination of any accounting firm so selected will be set forth in writing and will be conclusive and binding upon the parties. Buyer will revise the determination as of the Merger Consideration Adjustmentactual closing date, as the case may be be) (such anticipated or actual closing date, as the case may be, the "Applicable Date"). Upon completion of such appraisal, the Common Fund Appraiser shall deliver its determination of the Fair Market Value of such Qualified Venture Property Interest (such determination, the "Common Fund Appraiser's Determination") to the Common Fund and as appropriateBoston Properties, to reflect together with the resolution of any objections thereto.
(i) In underlying appraisal. If the event the parties submit any unresolved objections Common Fund Appraiser's Determination with respect to such Qualified Venture Property Interest is equal to at least 95% of the Initial Appraiser's Determination with respect to such Qualified Venture Property Interest, then the Fair Market Value of such Qualified Venture Property Interest shall, for purposes of this Article 7, be equal to the mathematical average of such Common Fund Appraiser's Determination and such Initial Appraiser's Determination. If the Common Fund Appraiser's Determination with respect to such Qualified Venture Property Interest is less than 95% of the Initial Appraiser's Determination with respect to such Qualified Venture Property Interest, then, within 10 days after the Common Fund Appraiser's Determination is so delivered to the Common Fund and Boston Properties, the Common Fund and Boston Properties shall select a third Acceptable Appraiser (the "Third Appraiser") to perform an MAI appraisal of such Qualified Venture Property Interest and determine the Fair Market Value thereof as of the Applicable Date. If, within such 10 day period, the parties are unable to agree upon the Third Appraiser, then either party may apply to the American Arbitration Association to have an Acceptable Appraiser appointed thereby, which appointment shall be made within 10 days after such application is made. Upon the selection or appointment of the Third Appraiser, the Third Appraiser shall be advised (x) that the determination of the amount of the Merger Consideration Adjustment to an accounting firm for resolution as provided herein, Buyer and Stockholders will share responsibility for the fees and expenses of the accounting firm as follows:
(A) if the accounting firm agrees with Buyer's determination of the amount of the Merger Consideration Adjustment (with the amount so determined Fair Market Value at issue shall be governed by the Buyer referred to herein as the "Buyer's Value"), Stockholders will be responsible for all definition of the fees same set forth in this Agreement and expenses of the accounting firm incurred in connection with the preparation of the determination with which the accounting firm agrees;
(B) if the accounting firm agrees with the Stockholders' determination of the amount of the Merger Consideration Adjustment (with the amount so determined by the Stockholders referred to herein as the " Stockholders' Value"), Buyer will be responsible for all of the fees and expenses of the accounting firm incurred in connection with the preparation of the determination with which the accounting firm agrees; and
(C) if the accounting firm determines that the amount of the Merger Consideration Adjustment (the "Actual Value") is different from either the Buyer's Value or the Stockholders' Value, the party whose determination is closest to the Actual Value will be responsible for that fraction of the fees and expenses of the accounting firm equal to (x) the difference between the closest party's determination and the Actual Value over (y) the greater of the difference between requirement that the Third Appraiser select (Iwithout compromise) the BuyerDetermination (defined below), as between the Initial Appraiser's Value Determination and the Stockholders' Value and (II) the other party's determination (which is furthest from the Actual Value) and the Actual Value, and the other party will be responsible for the remainder of the fees and expenses.
(ii) Each party will make the work papers and back-up materials used in determining the Buyer's Value and Stockholders' Value available to the other party and their accountants and other representatives at reasonable times and upon reasonable notice at any time during (I) the preparation of Buyer's Value or Stockholders' Value, (II) the review by either party of the other party's determination of the Merger Consideration Adjustment, and (III) the resolution by the parties of any objections thereto.Common Fund
Appears in 1 contract
Dispute Resolution Mechanism. If the parties do not obtain a final resolution of a dispute regarding the determination of the Merger Consideration Purchase Price Adjustment under Section 2.1(e) hereof within thirty (30) days after Buyer has received the statement of objections from the StockholdersSole Stockholder, the Buyer and the Stockholders Sole Stockholder will select an accounting firm mutually acceptable to them to resolve any remaining objections. If Buyer and Stockholders Sole Stockholder are unable to agree on the choice of an accounting firm, Buyer will select a nationally-recognized, independent certified public accounting firm. The determination of any accounting firm so selected will be set forth in writing and will be conclusive and binding upon the parties. Buyer will revise the determination of the Merger Consideration Purchase Price Adjustment, as the case may be and as appropriate, to reflect the resolution of any objections thereto.
(i) In the event the parties submit any unresolved objections with respect to the determination of the amount of the Merger Consideration Purchase Price Adjustment to an accounting firm for resolution as provided herein, Buyer and Stockholders Sole Stockholder will share responsibility for the fees and expenses of the accounting firm as follows:
(A) if the accounting firm agrees with Buyer's determination of the amount of the Merger Consideration Purchase Price Adjustment (with the amount so determined by the Buyer referred to herein as the "Buyer's ValueBUYER'S VALUE"), Stockholders Sole Stockholder will be responsible for all of the fees and expenses of the accounting firm incurred in connection with the preparation of the determination with which the accounting firm agrees;
(B) if the accounting firm agrees with the Stockholders' Sole Stockholder's determination of the amount of the Merger Consideration Purchase Price Adjustment (with the amount so determined by the Stockholders Sole Stockholder referred to herein as the " Stockholders' Value"SOLE STOCKHOLDER'S VALUE"), Buyer will be responsible for all of the fees and expenses of the accounting firm incurred in connection with the preparation of the determination with which the accounting firm agrees; and
(C) if the accounting firm determines that the amount of the Merger Consideration Purchase Price Adjustment (the "Actual ValueACTUAL VALUE") is different from either the Buyer's Value or the Stockholders' Sole Stockholder's Value, the party whose determination is closest to the Actual Value will be responsible for that fraction of the fees and expenses of the accounting firm equal to (x) the difference between the closest party's determination and the Actual Value over (y) the greater of the difference between (I) the Buyer's Value and the Stockholders' Sole Stockholder's Value and (II) the other party's determination (which is furthest from the Actual Value) and the Actual Value, and the other party will be responsible for the remainder of the fees and expenses.
(ii) Each party will make the work papers and back-up materials used in determining the Buyer's Value and Stockholders' Sole Stockholder's Value available to the other party and their accountants and other representatives at reasonable times and upon reasonable notice at any time during (I) the preparation of Buyer's Value or Stockholders' Sole Stockholder's Value, (II) the review by either party of the other party's determination of the Merger Consideration Purchase Price Adjustment, and (III) the resolution by the parties of any objections thereto.
Appears in 1 contract
Samples: Merger Agreement (Aim Group Inc)
Dispute Resolution Mechanism. (A) If the parties do not obtain a final resolution of a dispute regarding the determination of the Merger Consideration Adjustment under this Section 2.1(e3.2(b) hereof within thirty (30) days after Buyer WidePoint has received the statement of objections from the StockholdersAGS, the Buyer WidePoint and the Stockholders AGS will select an accounting firm mutually acceptable to them to resolve any remaining objections. If Buyer WidePoint and Stockholders AGS are unable to agree on the choice of an accounting firm, Buyer WidePoint will select a nationally-recognized, an independent certified public accounting firm. The determination of any accounting firm so selected will be set forth in writing and will be conclusive and binding upon the parties. Buyer WidePoint will revise the determination of the Merger Consideration Adjustment, as the case may be and as appropriate, Adjustment to reflect the resolution of any objections thereto.
(iB) In the event the parties submit any unresolved objections with respect to the determination of the amount of the Merger Consideration any Adjustment to an accounting firm for resolution as provided herein, Buyer WidePoint and Stockholders AGS will share responsibility for the fees and expenses of the accounting firm as follows:
(A1) if the accounting firm agrees with Buyer's WidePoint’s determination of the amount of the Merger Consideration Adjustment (with the amount so determined by the Buyer WidePoint referred to herein as the "Buyer's “WidePoint’s Value"”), Stockholders AGS and the Major Shareholders, jointly and severally, will be responsible for all of the fees and expenses of the accounting firm incurred in connection with the preparation of the determination with which the accounting firm agreessuch determination;
(B2) if the accounting firm agrees with the Stockholders' AGS’s determination of the amount of the Merger Consideration Adjustment (with the amount so determined by the Stockholders AGS referred to herein as the " Stockholders' “AGS’s Value"”), Buyer WidePoint will be responsible for all of the fees and expenses of the accounting firm incurred in connection with the preparation of the determination with which the accounting firm agreessuch determination; and
(C3) if the accounting firm determines that the amount of the Merger Consideration Adjustment (the "“Actual Value"”) is different from either the Buyer's WidePoint’s Value or the Stockholders' AGS’s Value, the party whose determination is closest to the Actual Value will be responsible for that fraction of the fees and expenses of the accounting firm equal to (x) the difference between the closest party's ’s determination and the Actual Value over (y) the greater of the difference between (I) the Buyer's WidePoint’s Value and the Stockholders' AGS’s Value and (II) the other party's ’s determination (which is furthest from the Actual Value) and the Actual Value, and the other party will be responsible for the remainder of the fees and expenses.
(iiC) Each party will make the work papers and back-up materials used in determining the Buyer's WidePoint’s Value and Stockholders' AGS’s Value available to the other party and their accountants and other representatives at reasonable times and upon reasonable notice at any time during (I) the preparation of Buyer's WidePoint’s Value or Stockholders' AGS’s Value, (II) the review by either party of the other party's ’s determination of the Merger Consideration Adjustment, and (III) the resolution by the parties of any objections thereto.
Appears in 1 contract
Dispute Resolution Mechanism. If the parties do not obtain a final resolution of a dispute regarding the determination of the Merger Consideration Adjustment under Section 2.1(e) hereof within thirty (30) days after Buyer has received the statement of objections from Melioris and/or the Warranting Stockholders, the Buyer and Melioris and/or the Warranting Stockholders will select an accounting firm mutually acceptable to them to resolve any remaining objections. If Buyer and Melioris and/or the Warranting Stockholders are unable to agree on the choice of an accounting firm, Buyer will select a nationally-recognized, independent certified public accounting firm. The determination of any accounting firm so selected will be set forth in writing and will be conclusive and binding upon the parties. Buyer will revise the determination of the Merger Consideration Adjustment, as the case may be and as appropriate, to reflect the resolution of any objections thereto.
(i) In the event the parties submit any unresolved objections with respect to the determination of the amount of the Merger Consideration Adjustment to an accounting firm for resolution as provided herein, Buyer and Melioris and/or Warranting Stockholders will share responsibility for the fees and expenses of the accounting firm as follows:follows (with each and every Stockholder who submits objections being responsible for sharing, on a pro-rata basis, the cost of the fees which are required to be paid by Melioris and/or the Warranting Stockholders under this Section 2.1(f)(i)):
(A) if the accounting firm agrees with Buyer's determination of the amount of the Merger Consideration Adjustment (with the amount so determined by the Buyer referred to herein as the "Buyer's Value"), Melioris and/or the Warranting Stockholders will be responsible for all of the fees and expenses of the accounting firm incurred in connection with the preparation of the determination with which the accounting firm agrees;
(B) if the accounting firm agrees with Melioris and/or the Warranting Stockholders' determination of the amount of the Merger Consideration Adjustment (with the amount so determined by Melioris and/or the Warranting Stockholders referred to herein as the " "Stockholders' Value"), Buyer will be responsible for all of the fees and expenses of the accounting firm incurred in connection with the preparation of the determination with which the accounting firm agrees; and
(C) if the accounting firm determines that the amount of the Merger Consideration Adjustment (the "Actual Value") is different from either the Buyer's Value or the Stockholders' Value, the party whose determination is closest to the Actual Value will be responsible for that fraction of the fees and expenses of the accounting firm equal to (x) the difference between the closest party's determination and the Actual Value over (y) the greater of the difference between (I) the Buyer's Value and the Stockholders' Value and (II) the other party's determination (which is furthest from the Actual Value) and the Actual Value, and the other party will be responsible for the remainder of the fees and expenses.
(ii) Each party will make the work papers and back-up materials used in determining the Buyer's Value and Stockholders' Value available to the other party and their accountants and other representatives at reasonable times and upon reasonable notice at any time during (I) the preparation of Buyer's Value or Stockholders' Value, (II) the review by either party of the other party's determination of the Merger Consideration Adjustment, and (III) the resolution by the parties of any objections thereto.
Appears in 1 contract
Dispute Resolution Mechanism. If Purchaser and Seller have not been able to resolve the parties do not obtain a final matters set forth in the Objection Notice within the Initial Resolution Period, either party may submit such disputed matters to, and such disputed matters shall be resolved fully, finally and exclusively by an independent accounting firm as reasonably agreed by Purchaser and Seller (the “Reviewing Party”). The fees and expenses of the Reviewing Party incurred in the resolution of the disputed matter(s) set forth in the Objection Notice shall be borne by the non-prevailing party in such disputed matter(s) (as determined by the Reviewing Party) or, if the Reviewing Party determines that neither party is non-prevailing, then such fees shall be borne equally by Purchaser and Seller. In the event of a dispute regarding involving an Objection Notice, the determination of the Merger Consideration Adjustment under Section 2.1(eReviewing Party shall determine (and written notice thereof shall be given to Seller and Purchaser) hereof as promptly as practicable, but in any event within thirty (30) days after Buyer has received following the statement date on which the Proposed Inventory is delivered to the Reviewing Party, based solely on written submissions detailing the disputed items and forwarded to it, (x) whether the Proposed Inventory was prepared in accordance with the terms of objections this Agreement or, alternatively, (y) only with respect to the disputed items submitted to the Reviewing Party, (i) whether and to what extent (if any) the Proposed Inventory require adjustment, (ii) a written explanation in reasonable detail of each such required adjustment, including the basis therefor, and (iii) a determination of the Final Inventory resulting from such adjustments. In the Stockholdersevent of a dispute involving a Disputed Tax Return, the Buyer Reviewing Party shall determine (and written notice thereof shall be given to Seller and Purchaser) as promptly as practicable, but in any event within thirty (30) calendar days following the Stockholders will select an accounting firm mutually acceptable date on which the Disputed Tax Return is delivered to them the Reviewing Party, based solely on written submissions detailing the disputed items and forwarded to resolve any remaining objections. If Buyer it and Stockholders are unable only with respect to agree on the choice disputed items submitted to the Reviewing Party, whether and to what extent (if any) the Disputed Tax Return requires adjustment and a written explanation in reasonable detail of an accounting firmeach such required adjustment, Buyer will select a nationally-recognized, independent certified public accounting firmincluding the basis therefor. The determination procedures of any accounting firm so selected will be set forth in writing this Section 2.4(e) are exclusive and will be conclusive and binding upon the parties. Buyer will revise the determination of the Merger Consideration Adjustment, as the case Reviewing Party shall be final and binding on Purchaser and Seller. The decision rendered pursuant to this Section 2.4(e) may be and filed as appropriate, to reflect the resolution a judgment in any court of any objections theretocompetent jurisdiction.
(i) In the event the parties submit any unresolved objections with respect to the determination of the amount of the Merger Consideration Adjustment to an accounting firm for resolution as provided herein, Buyer and Stockholders will share responsibility for the fees and expenses of the accounting firm as follows:
(A) if the accounting firm agrees with Buyer's determination of the amount of the Merger Consideration Adjustment (with the amount so determined by the Buyer referred to herein as the "Buyer's Value"), Stockholders will be responsible for all of the fees and expenses of the accounting firm incurred in connection with the preparation of the determination with which the accounting firm agrees;
(B) if the accounting firm agrees with the Stockholders' determination of the amount of the Merger Consideration Adjustment (with the amount so determined by the Stockholders referred to herein as the " Stockholders' Value"), Buyer will be responsible for all of the fees and expenses of the accounting firm incurred in connection with the preparation of the determination with which the accounting firm agrees; and
(C) if the accounting firm determines that the amount of the Merger Consideration Adjustment (the "Actual Value") is different from either the Buyer's Value or the Stockholders' Value, the party whose determination is closest to the Actual Value will be responsible for that fraction of the fees and expenses of the accounting firm equal to (x) the difference between the closest party's determination and the Actual Value over (y) the greater of the difference between (I) the Buyer's Value and the Stockholders' Value and (II) the other party's determination (which is furthest from the Actual Value) and the Actual Value, and the other party will be responsible for the remainder of the fees and expenses.
(ii) Each party will make the work papers and back-up materials used in determining the Buyer's Value and Stockholders' Value available to the other party and their accountants and other representatives at reasonable times and upon reasonable notice at any time during (I) the preparation of Buyer's Value or Stockholders' Value, (II) the review by either party of the other party's determination of the Merger Consideration Adjustment, and (III) the resolution by the parties of any objections thereto.
Appears in 1 contract
Dispute Resolution Mechanism. If During the parties do not obtain a final 10-day period ---------------------------- following the delivery of the Notice of Disagreement, Heath and Buyer shall seek in good faith to resolve in writing any differences that they may have with respect to the matters specified in such Notice of Disagreement. During such period each party shall have access to the working papers of each other party's independent auditors prepared in connection with their work done in preparing or reviewing the Tax Calculation. At the end of such 10-day period, Heath and Buyer shall submit to an independent accounting firm (the "Accounting Firm") for --------------- review and resolution any and all matters that remain in dispute and that were properly included in such Notice of Disagreement, in the form of a dispute regarding written brief. The Accounting Firm shall be KPMG Peat Marwick, LLP or, if such firm is unable or unwilling to act, such other nationally recognized independent public accounting firm as shall be agreed upon by Heath and Buyer in writing. Heath and Buyer shall use reasonable efforts to cause the Accounting Firm to render a decision resolving the matters submitted to the Accounting Firm within 30 days of the receipt of such submission. Judgment may be entered upon the determination of the Merger Consideration Adjustment under Section 2.1(e) hereof within thirty (30) days after Buyer has received the statement of objections from the Stockholders, the Buyer and the Stockholders will select an accounting firm mutually acceptable to them to resolve Accounting Firm in any remaining objections. If Buyer and Stockholders are unable to agree on the choice of an accounting firm, Buyer will select a nationally-recognized, independent certified public accounting firmcourt having jurisdiction. The determination cost of any accounting firm so selected will be set forth in writing and will be conclusive and binding upon the parties. Buyer will revise the determination of the Merger Consideration Adjustment, as the case may be and as appropriate, to reflect the resolution of any objections thereto.
proceedings (i) In the event the parties submit any unresolved objections with respect to the determination of the amount of the Merger Consideration Adjustment to an accounting firm for resolution as provided herein, Buyer and Stockholders will share responsibility for including the fees and expenses of the accounting firm as follows:
(A) if the accounting firm agrees with Buyer's determination of the amount of the Merger Consideration Adjustment (with the amount so determined by the Buyer referred to herein as the "Buyer's Value"), Stockholders will be responsible for all of the Accounting Firm and reasonable attorneys' fees and expenses of the accounting firm parties) pursuant to this subsection 3.03(c) shall be borne by Buyer and Sellers in inverse proportion as they may prevail on matters resolved by the Accounting Firm, which proportionate allocations shall also be determined by the Accounting Firm at the time the determination of the Accounting Firm is rendered on the merits of the matters submitted. The fees and disbursements of Bollam Xxxxxx Torani & Co., LLP (hereafter, "BST") incurred in connection with the preparation their review of the determination with which the accounting firm agrees;
(B) if the accounting firm agrees with the Stockholders' determination Tax --- Calculation and representing Sellers regarding any Notice of the amount of the Merger Consideration Adjustment (with the amount so determined Disagreement shall be borne by the Stockholders referred to herein as the " Stockholders' Value")Sellers, Buyer will be responsible for all of and the fees and expenses disbursements of the accounting firm Buyer's independent auditors incurred in connection with the preparation their review of the determination with which the accounting firm agrees; and
(C) if the accounting firm determines that the amount Tax Calculation and representing Buyer regarding any Notice of the Merger Consideration Adjustment (the "Actual Value") is different from either the Disagreement shall be borne by Buyer's Value or the Stockholders' Value, the party whose determination is closest to the Actual Value will be responsible for that fraction of the fees and expenses of the accounting firm equal to (x) the difference between the closest party's determination and the Actual Value over (y) the greater of the difference between (I) the Buyer's Value and the Stockholders' Value and (II) the other party's determination (which is furthest from the Actual Value) and the Actual Value, and the other party will be responsible for the remainder of the fees and expenses.
(ii) Each party will make the work papers and back-up materials used in determining the Buyer's Value and Stockholders' Value available to the other party and their accountants and other representatives at reasonable times and upon reasonable notice at any time during (I) the preparation of Buyer's Value or Stockholders' Value, (II) the review by either party of the other party's determination of the Merger Consideration Adjustment, and (III) the resolution by the parties of any objections thereto.
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