Disputed Final Adjustment. (i) The Closing Statement shall become final and binding upon the Parties on the thirtieth (30th) day following delivery thereof, unless Sellers deliver written notice to Purchaser prior to such date of its disagreement with preparation or content of the Closing Statement, including any disagreement with any balances or other amounts reflected in the Closing Data Tape (a “Notice of Disagreement”). During such thirty (30)-day period, Sellers and their designated auditor shall be permitted to reasonable access during normal business hours the working papers of Purchaser relating to the Closing Statement and the Closing Data Tape and to Purchaser’s auditor and representatives who prepared the Closing Statement and the Closing Data Tape. A Notice of Disagreement must describe in reasonable detail the items contained in the Closing Statement that Sellers dispute and the basis for any such disputes. During the thirty (30)-day period following the delivery of a Notice of Disagreement, Sellers and Purchaser shall seek in good faith to resolve in writing any differences that they may have with respect to the matters specified in the Notice of Disagreement and seek to agree on a final determination of the Closing Net Funds Employed, the Foreign Cash Amount and the Prepaids Amount. At the end of such thirty (30) day period, if no agreement on the Closing Net Funds Employed, the Foreign Cash Amount and the Prepaids Amount has been reached, Sellers and Purchaser shall engage a nationally recognized independent accounting firm (the “Accounting Firm”) for arbitration of any and all matters that remain in dispute and were properly included in the Notice of Disagreement. The Accounting Firm shall be Xxxxx Xxxxxxxx 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 the Parties in writing. As promptly as practicable after the engagement of the Accounting Firm, Sellers shall submit any unresolved elements set forth in the Notice of Disagreement to the Accounting Firm in writing (with a copy to Purchaser), supported by any documents and arguments upon which they rely. As promptly as practicable thereafter, Purchaser shall submit its response to the Accounting Firm (with a copy to Sellers) supported by any documents and arguments upon which it relies. The Parties shall instruct the Accounting Firm to render its reasoned written decision with respect to each disagreement asserted in accordance with this Section 3.2(b)(i) as promptly as practicable but in no event later than thirty (30) days after submission of all matters in dispute. 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. (ii) Notwithstanding any provisions hereof to the contrary, the Accounting Firm shall be deemed to be acting as an expert and not as an arbiter and the proceeding before the Accounting Firm shall be an expert determination under the law governing expert determination. None of Sellers or Purchaser shall have any ex parte communications with the Accounting Firm without the prior consent of Purchaser or Sellers, as the case may be. The Accounting Firm shall review such submissions and base its determination solely on the submissions made by Sellers and Purchaser, the terms of this Agreement and the Accounting Principles. In resolving any disputed item submitted to the Accounting Firm, the Accounting Firm may not assign a value to any item greater than the greatest value claimed for such item by either Purchaser or Sellers or less than the smallest value claimed for such item by either Purchaser or Sellers and such resolution shall be in accordance with the Accounting Principles and otherwise in accordance with this Section 3.2. (iii) In the event Purchaser and Sellers submit any unresolved objections to the Accounting Firm for resolution as provided in Section 3.2(b)(i), the cost of any dispute resolution (including the fees and expenses of the Accounting Firm and reasonable attorney fees and expenses of the Parties) shall be borne by Purchaser and Sellers in inverse proportion as they may prevail on matters resolved by the Accounting Firm, which proportionate allocations also shall be determined by the Accounting Firm at the time the determination of the Accounting Firm is rendered on the merits of the matters submitted. (iv) For purposes of complying with this Section 3.2, Purchaser and Sellers shall provide each other and the other’s auditors reasonable access during normal business hours to the personnel, properties, contracts, books and records relating to the Business, the Acquired Assets and the Assumed Liabilities in connection with the preparation of the Closing Statement and the resolution of any disputed amounts under the Closing Statement.
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Samples: Asset Purchase Agreement, Asset Purchase Agreement (Triumph Bancorp, Inc.)
Disputed Final Adjustment. (i) The Closing Statement shall become final and binding upon No later than thirty (30) days following the Parties on the thirtieth (30th) day following delivery thereof, unless Sellers deliver written notice to by Purchaser prior to such date of its disagreement with preparation or content of the Closing Statementcalculation of Actual Working Capital, including any disagreement with any balances Actual Cash, Actual Indebtedness and Actual Transaction Expenses, the Sellers’ Representative shall notify Purchaser in writing whether it accepts or other amounts reflected in disputes the Closing Data Tape (a “Notice accuracy of Disagreement”)the calculation of Actual Working Capital, Actual Cash, Actual Indebtedness and Actual Transaction Expenses. During such thirty (30)-day 30) day period, Sellers subject to subparts (ii) and their designated auditor (iii) contained in the second sentence in Section 6.13, the Sellers’ Representative and its agents shall be permitted to reasonable provided with prompt access during normal business hours (time being of the working papers of Purchaser relating essence) to the Closing Statement financial books and records of the Closing Data Tape Company Group as well as any relevant work papers (in each case subject to execution of customary work paper access letters if requested) as the Sellers’ Representative may reasonably request to enable it to evaluate the calculations of Actual Working Capital, Actual Cash, Actual Indebtedness and Actual Transaction Expenses prepared by Purchaser. If the Sellers’ Representative accepts the calculation of Actual Working Capital, Actual Cash, Actual Indebtedness and Actual Transaction Expenses determined pursuant to Purchaser’s auditor Section 2.5(b), or if the Sellers’ Representative fails within such thirty (30) day period to notify Purchaser of any dispute with respect thereto, then the calculation of Actual Working Capital determined pursuant to Section 2.5(b) shall be the “Final Working Capital,” the calculation of Actual Cash determined pursuant to Section 2.5(b) shall be the “Final Cash,” the calculation of Actual Indebtedness determined pursuant to Section 2.5(b) shall be the “Final Indebtedness,” the calculation of Actual Transaction Expenses determined pursuant to Section 2.5(b) shall be the “Final Transaction Expenses,” which, in each case, shall be deemed final and representatives who prepared conclusive and binding upon all Parties in all respects for purposes of this Section 2.5.
(ii) If the Closing Statement and Sellers’ Representative disputes the Closing Data Tape. A Notice accuracy of Disagreement must describe the calculation of Actual Working Capital, Actual Cash, Actual Indebtedness or Actual Transaction Expenses, the Sellers’ Representative shall provide written notice to Purchaser no later than thirty (30) days following the delivery by Purchaser to the Sellers’ Representative of the calculation of Actual Working Capital, Actual Cash, Actual Indebtedness or Actual Transaction Expenses (the “Dispute Notice”), setting forth in reasonable detail those items that the items contained in the Closing Statement that Sellers dispute Sellers’ Representative disputes and the basis for any Sellers’ Representative’s alternative calculation of each such disputesitem. Only the Sellers’ Representative may deliver the Dispute Notice and the Sellers’ Representative shall only have the right to submit one Dispute Notice. During the thirty (30)-day period following the delivery of a Notice of Disagreementthe Dispute Notice, Sellers Purchaser and Purchaser the Sellers’ Representative shall seek negotiate in good faith with a view to resolve in writing any differences that they may have with respect to resolving their disagreements over the matters specified in disputed items. During such thirty (30) day period and until the Notice of Disagreement and seek to agree on a final determination of Actual Working Capital, Actual Cash, Actual Indebtedness and/or Actual Transaction Expenses, in accordance with this Section 2.5(c)(ii) or Section 2.5(c)(iii), as the Closing Net Funds Employedcase may be (as so determined, or as determined pursuant to Section 2.5(c)(i) above, “Final Working Capital,” “Final Cash,” “Final Indebtedness,” and “Final Transaction Expenses,”, respectively), the Foreign Cash Amount Sellers’ Representative and its agents shall be provided with prompt access (time being of the Prepaids Amountessence) to the financial books and records of the Company Group as each such Person may reasonably request to enable it to address all matters set forth in any Dispute Notice. At If the end Parties resolve their differences over the disputed items in accordance with the foregoing procedure, Final Working Capital, Final Cash, Final Indebtedness and/or Final Transaction Expenses shall be the amounts agreed upon by them. If the Parties fail to resolve their differences over any of the disputed items within such thirty (30) day period, if no agreement on the Closing Net Funds Employed, the Foreign Cash Amount then Purchaser and the Prepaids Amount has been reached, Sellers and Purchaser Sellers’ Representative shall engage forthwith jointly request that a nationally recognized independent accounting firm (the “Accounting Firm”) for arbitration of any and all matters that remain in dispute and were properly included in the Notice of Disagreement. The Accounting Firm shall be Xxxxx Xxxxxxxx LLP or, if such firm is unable or unwilling to act, such other nationally recognized independent public accounting firm as shall be mutually agreed upon by Xxxxxxxxx and the Parties in writing. As promptly Sellers’ Representative (the “Independent Accountant”) make a binding determination as practicable after the engagement of the Accounting Firm, Sellers shall submit any unresolved elements set forth in the Notice of Disagreement to the Accounting Firm in writing (with a copy to Purchaser), supported by any documents and arguments upon which they rely. As promptly as practicable thereafter, Purchaser shall submit its response to the Accounting Firm (with a copy to Sellers) supported by any documents and arguments upon which it relies. The Parties shall instruct the Accounting Firm to render its reasoned written decision with respect to each disagreement asserted remaining disputed items in accordance with this Section 3.2(b)(i) as promptly as practicable but in no event later than thirty (30) days after submission of all matters in dispute. 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 enforcedAgreement.
(ii) Notwithstanding any provisions hereof to the contrary, the Accounting Firm shall be deemed to be acting as an expert and not as an arbiter and the proceeding before the Accounting Firm shall be an expert determination under the law governing expert determination. None of Sellers or Purchaser shall have any ex parte communications with the Accounting Firm without the prior consent of Purchaser or Sellers, as the case may be. The Accounting Firm shall review such submissions and base its determination solely on the submissions made by Sellers and Purchaser, the terms of this Agreement and the Accounting Principles. In resolving any disputed item submitted to the Accounting Firm, the Accounting Firm may not assign a value to any item greater than the greatest value claimed for such item by either Purchaser or Sellers or less than the smallest value claimed for such item by either Purchaser or Sellers and such resolution shall be in accordance with the Accounting Principles and otherwise in accordance with this Section 3.2.
(iii) In the event Purchaser and Sellers submit any unresolved objections to the Accounting Firm for resolution as provided in Section 3.2(b)(i), the cost of any dispute resolution (including the fees and expenses of the Accounting Firm and reasonable attorney fees and expenses of the Parties) shall be borne by Purchaser and Sellers in inverse proportion as they may prevail on matters resolved by the Accounting Firm, which proportionate allocations also shall be determined by the Accounting Firm at the time the determination of the Accounting Firm is rendered on the merits of the matters submitted.
(iv) For purposes of complying with this Section 3.2, Purchaser and Sellers shall provide each other and the other’s auditors reasonable access during normal business hours to the personnel, properties, contracts, books and records relating to the Business, the Acquired Assets and the Assumed Liabilities in connection with the preparation of the Closing Statement and the resolution of any disputed amounts under the Closing Statement.
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Disputed Final Adjustment. (i) The Closing Statement shall become final and binding upon the Parties on the thirtieth (30th) day following delivery thereof, unless Sellers deliver written notice to Purchaser prior to such date of its disagreement with preparation or content of the Closing Statement, including any disagreement with any balances or other amounts reflected in the Closing Data Tape (a “Notice of Disagreement”). During such No later than thirty (30)-day period, Sellers and their designated auditor shall be permitted to reasonable access during normal business hours the working papers of Purchaser relating to the Closing Statement and the Closing Data Tape and to Purchaser’s auditor and representatives who prepared the Closing Statement and the Closing Data Tape. A Notice of Disagreement must describe in reasonable detail the items contained in the Closing Statement that Sellers dispute and the basis for any such disputes. During the thirty (30)-day period 30) days following the delivery by Purchaser of a Notice the calculation of DisagreementActual Working Capital, Sellers Actual Indebtedness, Actual Sellers’ Transaction Expenses and Actual Cash, the Sellers’ Representative shall notify Purchaser shall seek in good faith to resolve in writing any differences that they may have with respect to whether it accepts or disputes the matters specified in the Notice of Disagreement and seek to agree on a final determination accuracy of the Closing Net Funds Employedcalculation of Actual Working Capital, the Foreign Cash Amount Actual Indebtedness, Actual Sellers’ Transaction Expenses and the Prepaids AmountActual Cash. At the end of During such thirty (30) day period, the Sellers’ Representative and its agents shall be provided with such access to the financial books and records of Purchaser and the Company Group as well as any relevant work papers as it may reasonably request to enable it to evaluate the Actual Working Capital, Actual Indebtedness, Actual Sellers’ Transaction Expenses and Actual Cash; provided, that such access shall be in a manner that does not interfere with the normal business operations of Purchaser or the Surviving Corporation. If the Sellers’ Representative accepts the calculation of Actual Working Capital, Actual Indebtedness, Actual Sellers’ Transaction Expenses and Actual Cash determined pursuant to Section 2.11(b), or if no agreement on the Closing Net Funds EmployedSellers’ Representative fails within such thirty (30) day period to notify Purchaser of any dispute with respect thereto, then the calculation of Actual Working Capital determined pursuant to Section 2.11(b) shall be the “Final Working Capital”, the Foreign Cash Amount calculation of Actual Indebtedness determined pursuant to Section 2.11(b) shall be the “Final Indebtedness”, the calculation of Actual Sellers’ Transaction Expenses determined pursuant to Section 2.11(b) shall be the “Final Sellers’ Transaction Expenses” and the Prepaids Amount has been reached, Sellers and Purchaser calculation of Actual Cash determined pursuant to Section 2.11(b) shall engage a nationally recognized independent accounting firm (be the “Accounting Firm”) for arbitration of any and all matters that remain Final Cash” which, in dispute and were properly included in the Notice of Disagreement. The Accounting Firm each case, shall be Xxxxx Xxxxxxxx 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 deemed final and conclusive and binding.
(ii) If the Parties in writing. As promptly as practicable after Sellers’ Representative disputes the engagement accuracy of the Accounting Firmcalculation of Actual Working Capital, Sellers Actual Indebtedness, Actual Sellers’ Transaction Expenses or Actual Cash, the Sellers’ Representative shall submit any unresolved elements set forth in the Notice of Disagreement provide written notice to the Accounting Firm in writing (with a copy to Purchaser), supported by any documents and arguments upon which they rely. As promptly as practicable thereafter, Purchaser shall submit its response to the Accounting Firm (with a copy to Sellers) supported by any documents and arguments upon which it relies. The Parties shall instruct the Accounting Firm to render its reasoned written decision with respect to each disagreement asserted in accordance with this Section 3.2(b)(i) as promptly as practicable but in no event later than thirty (30) days after submission following the delivery by Purchaser to the Sellers’ Representative of all matters the calculation of Actual Working Capital, Actual Indebtedness, Actual Sellers’ Transaction Expenses and Actual Cash (the “Dispute Notice”), setting forth each item that the Sellers’ Representative disputes and the basis for its disagreement therewith. During the thirty (30) day period following delivery of a Dispute Notice, Purchaser and the Sellers’ Representative shall negotiate in disputegood faith with a view to resolving their disagreements over the disputed items. Judgment may be entered upon During such thirty (30) day period and until the final determination of the Accounting Firm Actual Working Capital, Actual Indebtedness, Actual Sellers’ Transaction Expenses and/or Actual Cash in any court having jurisdiction over the Party against which such determination is to be enforced.
(iiaccordance with this Section 2.11(c)(ii) Notwithstanding any provisions hereof to the contrary, the Accounting Firm shall be deemed to be acting as an expert and not as an arbiter and the proceeding before the Accounting Firm shall be an expert determination under the law governing expert determination. None of Sellers or Purchaser shall have any ex parte communications with the Accounting Firm without the prior consent of Purchaser or SellersSection 2.11(c)(iii), as the case may bebe (as so determined, or as determined pursuant to Section 2.11(c)(i) above, “Final Working Capital”, “Final Indebtedness,” “Final Sellers’ Transaction Expenses” and “Final Cash,” respectively), the Sellers’ Representative and its agents shall be provided with such access to the financial books and records of Purchaser and the Company Group as it may reasonably request; provided, that such access shall be in a manner that does not interfere with the normal business operations of Purchaser or the Surviving Corporation. If the parties resolve their differences over the disputed items in accordance with the foregoing procedure, Final Working Capital, Final Indebtedness, Final Sellers’ Transaction Expenses and Final Cash shall be the amounts agreed upon by them. If the parties fail to resolve their differences over the disputed items within such thirty (30) day period, then Purchaser and the Sellers’ Representative shall forthwith jointly request that an accountant, to be mutually agreed to at the time (and if not agreed, such accountant will be a partner of a reputable U.S. national independent certified public accounting firm mutually agreed upon by a partner of each of the respective accounting firms representing Purchaser and the Sellers’ Representative in such dispute) (the “Accounting Arbitrator”) make a binding determination as to the disputed items in accordance with this Agreement.
(iii) The Accounting Arbitrator will under the terms of its engagement have no more than thirty (30) days from the date of referral and no more than ten (10) Business Days from the final submission of information and testimony by Purchaser and the Sellers’ Representative within which to render its written decision with respect to the disputed items (and only with respect to any unresolved disputed items set forth in the Dispute Notice) and the final calculation of Actual Working Capital, Actual Indebtedness, Actual Sellers’ Transaction Expenses and Actual Cash shall be based solely on the resolution of such disputed items. The Accounting Firm Arbitrator shall review such submissions and base its determination solely on the submissions made by Sellers and Purchaser, the terms of this Agreement and the Accounting Principlessuch submissions. In resolving any disputed item submitted to the Accounting Firmitem, the Accounting Firm Arbitrator may not assign a value to any item greater than the greatest maximum value claimed for such item claimed by either Purchaser or Sellers party or less than the smallest minimum value claimed for such item claimed by either Purchaser or Sellers and such resolution party. The decision of the Accounting Arbitrator shall be in accordance with deemed final and binding upon the parties and enforceable by any court of competent jurisdiction and the Accounting Principles and otherwise in accordance with this Section 3.2.
(iii) In Arbitrator’s final calculation of Actual Working Capital shall be deemed the event Purchaser and Sellers submit any unresolved objections to “Final Working Capital”, the Accounting Firm for resolution as provided in Section 3.2(b)(i)Arbitrator’s final calculation of Actual Indebtedness shall be deemed the “Final Indebtedness”, the cost Accounting Arbitrator’s final calculation of any dispute resolution (including Actual Sellers’ Transaction Expenses shall be deemed the “Final Sellers’ Transaction Expenses” and the Accounting Arbitrator’s final calculation of Actual Cash shall be deemed the “Final Cash”. The fees and expenses of the Accounting Firm Arbitrator shall be allocated to be paid by Purchaser, on the one hand, and reasonable attorney fees and expenses the Sellers’ Representative (on behalf of the Parties) shall be borne Sellers, severally and not jointly, in proportion to their pro rata share of the Final Merger Consideration set forth on the Distribution Waterfall (the “Pro Rata Share”)), on the other hand, based upon the percentage that the portion of the contested amount not awarded to each party bears to the amount actually contested by Purchaser and Sellers in inverse proportion such party, as they may prevail on matters resolved by the Accounting Firm, which proportionate allocations also shall be determined by the Accounting Firm at the time the determination of the Accounting Firm is rendered on the merits of the matters submittedArbitrator.
(iv) For purposes of complying with this Section 3.2, Purchaser and Sellers shall provide each other and the other’s auditors reasonable access during normal business hours to the personnel, properties, contracts, books and records relating to the Business, the Acquired Assets and the Assumed Liabilities in connection with the preparation of the Closing Statement and the resolution of any disputed amounts under the Closing Statement.
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Disputed Final Adjustment. (i) The Closing Statement shall become final and binding upon No later than sixty (60) days following the Parties on the thirtieth (30th) day following delivery thereof, unless Sellers deliver written notice to by Purchaser prior to such date of its disagreement with preparation or content of the Closing Statementcalculation of Actual Working Capital, including any disagreement with any balances Actual Cash, Actual Indebtedness and Actual Sellers’ Transaction Expenses, the Sellers’ Representative shall notify Purchaser in writing whether it accepts or other amounts reflected in disputes the Closing Data Tape (a “Notice accuracy of Disagreement”)the calculation of Actual Working Capital, Actual Cash, Actual Indebtedness and Actual Sellers’ Transaction Expenses. During such thirty sixty (30)-day 60) day period, Sellers the Sellers’ Representative and their designated auditor its agents shall be permitted provided, subject to reasonable access customary confidentiality restrictions, during normal business hours and upon prior written notice, with access to the working papers financial books and records of Purchaser relating and the Company Group as well as any relevant information and work papers as it may reasonably request, in each case, to the Closing Statement and the Closing Data Tape and extent related to Purchaser’s auditor calculations of Actual Working Capital, Actual Cash, Actual Indebtedness and representatives who prepared Actual Sellers’ Transaction Expenses. If the Closing Statement Sellers’ Representative accepts the calculation of Actual Working Capital, Actual Cash, Actual Indebtedness and Actual Sellers’ Transaction Expenses determined pursuant to Section 2.10(b), or if the Closing Data Tape. A Notice of Disagreement must describe in reasonable detail the items contained in the Closing Statement that Sellers dispute and the basis for any Sellers’ Representative fails within such disputes. During the thirty sixty (30)-day period following the delivery of a Notice of Disagreement, Sellers and Purchaser shall seek in good faith to resolve in writing any differences that they may have with respect to the matters specified in the Notice of Disagreement and seek to agree on a final determination of the Closing Net Funds Employed, the Foreign Cash Amount and the Prepaids Amount. At the end of such thirty (3060) day period, if no agreement on the Closing Net Funds Employed, the Foreign Cash Amount and the Prepaids Amount has been reached, Sellers and period to notify Purchaser shall engage a nationally recognized independent accounting firm (the “Accounting Firm”) for arbitration of any and all matters that remain in dispute and were properly included in the Notice of Disagreement. The Accounting Firm shall be Xxxxx Xxxxxxxx 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 the Parties in writing. As promptly as practicable after the engagement of the Accounting Firm, Sellers shall submit any unresolved elements set forth in the Notice of Disagreement to the Accounting Firm in writing (with a copy to Purchaser), supported by any documents and arguments upon which they rely. As promptly as practicable thereafter, Purchaser shall submit its response to the Accounting Firm (with a copy to Sellers) supported by any documents and arguments upon which it relies. The Parties shall instruct the Accounting Firm to render its reasoned written decision with respect to each disagreement asserted in accordance with this Section 3.2(b)(i2.10(c)(iii) as promptly as practicable but of any dispute with respect thereto, then the calculation of Actual Working Capital determined pursuant to Section 2.10(b) shall be the “Final Working Capital,” the calculation of Actual Cash determined pursuant to Section 2.10(b) shall be the “Final Cash,” the calculation of Actual Indebtedness determined pursuant to Section 2.10(b) shall be the “Final Indebtedness” and the calculation of Actual Sellers’ Transaction Expenses determined pursuant to Section 2.10(b) shall be the “Final Sellers’ Transaction Expenses,” which, in no event later than thirty (30) days after submission of all matters in dispute. Judgment may each case, shall be entered upon deemed final and conclusive and binding on the determination parties hereto and each of the Accounting Firm in any court having jurisdiction over the Party against which such determination is to be enforcedother Company Unitholders.
(ii) Notwithstanding any provisions hereof If the Sellers’ Representative disputes Purchaser’s calculation of Actual Working Capital, Actual Cash, Actual Indebtedness and/or Actual Sellers’ Transaction Expenses, the Sellers’ Representative shall provide written notice to Purchaser no later than sixty (60) days following the delivery by Purchaser to the contrarySellers’ Representative of the calculation of Actual Working Capital, Actual Cash, Actual Indebtedness and Actual Sellers’ Transaction Expenses (the Accounting Firm shall be deemed to be acting as an expert and not as an arbiter and the proceeding before the Accounting Firm shall be an expert determination under the law governing expert determination. None of Sellers or Purchaser shall have any ex parte communications with the Accounting Firm without the prior consent of Purchaser or Sellers, as the case may be. The Accounting Firm shall review such submissions and base its determination solely on the submissions made by Sellers and Purchaser, the terms of this Agreement and the Accounting Principles. In resolving any disputed item submitted to the Accounting Firm, the Accounting Firm may not assign a value to any item greater than the greatest value claimed for such item by either Purchaser or Sellers or less than the smallest value claimed for such item by either Purchaser or Sellers and such resolution shall be in accordance with the Accounting Principles and otherwise in accordance with this Section 3.2.
(iii) In the event Purchaser and Sellers submit any unresolved objections to the Accounting Firm for resolution as provided in Section 3.2(b)(i“Dispute Notice”), the cost of any dispute resolution (including the fees and expenses of the Accounting Firm and setting forth in reasonable attorney fees and expenses of the Parties) shall be borne by Purchaser and Sellers in inverse proportion as they may prevail on matters resolved by the Accounting Firm, which proportionate allocations also shall be determined by the Accounting Firm at the time the determination of the Accounting Firm is rendered on the merits of the matters submitted.
(iv) For purposes of complying with this Section 3.2, Purchaser and Sellers shall provide each other and the other’s auditors reasonable access during normal business hours to the personnel, properties, contracts, books and records relating to the Business, the Acquired Assets and the Assumed Liabilities in connection with the preparation of the Closing Statement and the resolution of any disputed amounts under the Closing Statement.detail those items
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Disputed Final Adjustment. (i) The Closing Statement shall become final and binding upon No later than thirty (30) days following the Parties on the thirtieth (30th) day following delivery thereof, unless Sellers deliver written notice to Purchaser prior to such date of its disagreement with preparation or content by Buyer of the Closing Statement, including any disagreement with any balances the Seller shall notify Buyer in writing whether it accepts or other amounts reflected in disputes the Closing Data Tape (a “Notice accuracy of Disagreement”)the calculation of Actual Working Capital, Actual Cash, Actual Indebtedness and Actual Transaction Expenses. During such thirty (30)-day period, Sellers and their designated auditor shall be permitted to reasonable access during normal business hours the working papers of Purchaser relating to the Closing Statement and the Closing Data Tape and to Purchaser’s auditor and representatives who prepared the Closing Statement and the Closing Data Tape. A Notice of Disagreement must describe in reasonable detail the items contained in the Closing Statement that Sellers dispute and the basis for any such disputes. During the thirty (30)-day period following the delivery of a Notice of Disagreement, Sellers and Purchaser shall seek in good faith to resolve in writing any differences that they may have with respect to the matters specified in the Notice of Disagreement and seek to agree on a final determination of the Closing Net Funds Employed, the Foreign Cash Amount and the Prepaids Amount. At the end of such thirty (30) day period, the Seller and its agents shall be provided with such access to the financial books and records of the Company as well as any relevant work papers as it may reasonably request to enable it to evaluate the calculations of Actual Working Capital, Actual Cash, Actual Indebtedness and Actual Transaction Expenses prepared by Buyer. If the Seller accepts the calculation of Actual Working Capital, Actual Cash, Actual Indebtedness and Actual Transaction Expenses determined pursuant to Section 2.3(b), or if no agreement on the Closing Net Funds EmployedSeller fails within such thirty (30) day period to notify Buyer of any dispute with respect thereto, then the calculation of Actual Working Capital determined pursuant to Section 2.3(b) shall be the “Final Working Capital,” the calculation of Actual Cash determined pursuant to Section 2.3(b) shall be the “Final Cash,” the calculation of Actual Indebtedness determined pursuant to Section 2.3(b) shall be the “Final Indebtedness,” and the calculation of Actual Transaction Expenses determined pursuant to Section 2.3(b) shall be the “Final Transaction Expenses,” which, in each case, shall be deemed final and conclusive and binding upon all Parties in all respects.
(ii) If the Seller disputes the accuracy of the calculation of Actual Working Capital, Actual Cash, Actual Indebtedness or Actual Transaction Expenses, the Foreign Cash Amount and the Prepaids Amount has been reached, Sellers and Purchaser Seller shall engage a nationally recognized independent accounting firm (the “Accounting Firm”) for arbitration of any and all matters that remain in dispute and were properly included in the Notice of Disagreement. The Accounting Firm shall be Xxxxx Xxxxxxxx LLP or, if such firm is unable or unwilling provide written notice to act, such other nationally recognized independent public accounting firm as shall be agreed upon by the Parties in writing. As promptly as practicable after the engagement of the Accounting Firm, Sellers shall submit any unresolved elements set forth in the Notice of Disagreement to the Accounting Firm in writing (with a copy to Purchaser), supported by any documents and arguments upon which they rely. As promptly as practicable thereafter, Purchaser shall submit its response to the Accounting Firm (with a copy to Sellers) supported by any documents and arguments upon which it relies. The Parties shall instruct the Accounting Firm to render its reasoned written decision with respect to each disagreement asserted in accordance with this Section 3.2(b)(i) as promptly as practicable but in Buyer no event later than thirty (30) days after submission following the delivery by Buyer to the Seller of all matters the calculation of Actual Working Capital, Actual Cash, Actual Indebtedness and Actual Transaction Expenses (the “Dispute Notice”), setting forth in disputereasonable detail those items that the Seller disputes (each such item, an “Item of Dispute”). Judgment may be entered upon During the thirty (30) day period following delivery of the Dispute Notice, Buyer and the Seller shall negotiate in good faith with a view to resolving their disagreements over each Item of Dispute. During such thirty (30) day period and until the final determination of the Accounting Firm in any court having jurisdiction over the Party against which such determination is to be enforced.
(ii) Notwithstanding any provisions hereof to the contraryActual Working Capital, the Accounting Firm shall be deemed to be acting as an expert and not as an arbiter and the proceeding before the Accounting Firm shall be an expert determination under the law governing expert determination. None of Sellers or Purchaser shall have any ex parte communications with the Accounting Firm without the prior consent of Purchaser or SellersActual Cash, as the case may be. The Accounting Firm shall review such submissions and base its determination solely on the submissions made by Sellers and Purchaser, the terms of this Agreement and the Accounting Principles. In resolving any disputed item submitted to the Accounting Firm, the Accounting Firm may not assign a value to any item greater than the greatest value claimed for such item by either Purchaser or Sellers or less than the smallest value claimed for such item by either Purchaser or Sellers and such resolution shall be in accordance with the Accounting Principles and otherwise in accordance with this Section 3.2.
(iii) In the event Purchaser and Sellers submit any unresolved objections to the Accounting Firm for resolution as provided in Section 3.2(b)(i), the cost of any dispute resolution (including the fees and expenses of the Accounting Firm and reasonable attorney fees and expenses of the Parties) shall be borne by Purchaser and Sellers in inverse proportion as they may prevail on matters resolved by the Accounting Firm, which proportionate allocations also shall be determined by the Accounting Firm at the time the determination of the Accounting Firm is rendered on the merits of the matters submitted.
(iv) For purposes of complying with this Section 3.2, Purchaser and Sellers shall provide each other and the other’s auditors reasonable access during normal business hours to the personnel, properties, contracts, books and records relating to the Business, the Acquired Assets and the Assumed Liabilities in connection with the preparation of the Closing Statement and the resolution of any disputed amounts under the Closing Statement.Actual
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Disputed Final Adjustment. (i) The Closing Statement No later than forty-five (45) days following the delivery by the Purchaser of the calculation of Actual Working Capital, Actual Cash, Actual Indebtedness and Actual Transaction Expenses, the Seller Representative shall become notify the Purchaser in writing whether he accepts or disputes the accuracy of the calculation of Actual Working Capital, Actual Cash, Actual Indebtedness and Actual Transaction Expenses. During such forty-five (45) day period, the Seller Representative and his agents shall be provided with reasonable access during regular business hours, without undue interruption to the Company or the Business and upon advance written request (subject to Seller Representative and such agents entering into any access letters required by accountants), to the financial books and records of the Purchaser and the Company as well as any relevant work papers and such employees, agents, representatives and advisors of the Company involved in such calculations as the Seller Representative may reasonably request to the extent that, such work papers, books and records and employees, agents, representatives and advisors are necessary for the Seller Representative and his agents to confirm the calculations of Actual Working Capital, Actual Cash, Actual Indebtedness and Actual Transaction Expenses prepared by the Purchaser. If the Seller Representative accepts the calculation of Actual Working Capital, Actual Cash, Actual Indebtedness and Actual Transaction Expenses determined pursuant to Section 2.4(b), or if the Seller Representative does not, within such forty-five (45) day period, deliver to the Purchaser a written notice of any dispute with respect thereto (a “Dispute Notice”), then the calculation of Actual Working Capital determined pursuant to Section 2.4(b) shall be the “Final Working Capital” the calculation of Actual Cash determined pursuant to Section 2.4(b) shall be the “Final Cash,” the calculation of Actual Indebtedness determined pursuant to Section 2.4(b) shall be the “Final Indebtedness,” the calculation of Transaction Expenses determined pursuant to Section 2.4(b) shall be the “Final Transaction Expenses” and such items shall in each case be deemed final and conclusive and binding upon all parties in all respects.
(ii) If the Parties on Seller Representative disputes the thirtieth (30th) day following delivery thereof, unless Sellers deliver written notice to Purchaser prior to such date of its disagreement with preparation or content accuracy of the Closing Statementcalculation of Actual Working Capital, including any disagreement with any balances Actual Cash, Actual Indebtedness or other amounts reflected in Actual Transaction Expenses, the Closing Data Tape (a “Notice of Disagreement”). During such thirty (30)-day period, Sellers and their designated auditor Seller Representative shall be permitted to reasonable access during normal business hours the working papers of Purchaser relating deliver to the Closing Statement Purchaser a Dispute Notice no later than forty-five (45) days following the delivery by the Purchaser to the Seller Representative of the calculation of Actual Working Capital, Actual Cash, Actual Indebtedness and the Closing Data Tape and to Purchaser’s auditor and representatives who prepared the Closing Statement and the Closing Data Tape. A Notice of Disagreement must describe Actual Transaction Expenses, setting forth in reasonable detail (together with reasonable supporting documentation and information) those items that the items contained in the Closing Statement that Sellers dispute and the basis for any such Seller Representative disputes. During the thirty (30)-day 30) day period following the delivery of a Notice of DisagreementDispute Notice, Sellers the Purchaser and Purchaser the Seller Representative shall seek negotiate in good faith and use commercially reasonable efforts to resolve their disagreements over any such disputed items set forth in writing any differences that they may have with respect to such Dispute Notice. During such thirty (30) day period and until the matters specified in the Notice of Disagreement and seek to agree on a final determination of Actual Working Capital, Actual Cash, Actual Indebtedness or Actual Transaction Expenses in accordance with this Section 2.4(c)(ii) or Section 2.4(c)(iii), as the Closing Net Funds Employedcase may be (as so determined, or as determined pursuant to Section 2.4(c)(i) above, “Final Working Capital,” “Final Cash,” “Final Indebtedness” and “Final Transaction Expenses,” respectively), the Foreign Cash Amount Purchaser and the Prepaids AmountPurchaser Representatives, on the one hand, and Seller Representative and his agents, on the other hand, shall reasonably cooperate with each other and shall be provided copies of the relevant portion of their respective books and records and work papers used, in the case of the Purchaser and the Purchaser Representatives, in the calculation of Actual Working Capital, Actual Cash, Actual Indebtedness, Actual Transaction Expense and, in the case of Seller Representative and his agents, in preparing such Dispute Notice, in each case, during regular business hours, without undue interruption to their respective businesses or the Business, as applicable, and upon advance written request (subject to entering into any access letters required by their respective accountants) for the purpose of resolving, and only to the extent required for the resolution of, such disputed items. At If the end of parties resolve their differences over such disputed items in accordance with the foregoing procedure, Final Working Capital, Final Cash, Final Indebtedness or Final Transaction Expenses shall be the amounts agreed upon by them. If the parties fail to resolve their differences over such disputed items within such thirty (30) day period, then the Purchaser and the Seller Representative shall forthwith jointly request that Xxxxx, LLC (formerly known as Duff & Xxxxxx, LLC), and if no agreement on the Closing Net Funds EmployedXxxxx, LLC is unable to serve, the Foreign Cash Amount Purchaser and the Prepaids Amount has been reached, Sellers and Purchaser Seller Representative shall engage a nationally recognized independent accounting firm (appoint by mutual agreement the “Accounting Firm”) for arbitration office of any and all matters that remain in dispute and were properly included in the Notice of Disagreement. The Accounting Firm shall be Xxxxx Xxxxxxxx LLP or, if such firm is unable or unwilling to act, such other an impartial nationally recognized independent public accounting firm as shall be agreed upon by the Parties in writing. As promptly as practicable after the engagement of the Accounting Firm, Sellers shall submit any unresolved elements set forth in the Notice of Disagreement that is reasonably acceptable to the Purchaser and the Seller Representative (the “Accounting Firm in writing (with Arbitrator”) to make a copy binding determination as to Purchaser), supported by any documents and arguments upon which they rely. As promptly as practicable thereafter, Purchaser shall submit its response to the Accounting Firm (with a copy to Sellers) supported by any documents and arguments upon which it relies. The Parties shall instruct the Accounting Firm to render its reasoned written decision with respect to each disagreement asserted such disputed items in accordance with this Section 3.2(b)(iAgreement (including the applicable definitions and the Accounting Principles, where applicable).
(iii) as promptly as practicable but in The Accounting Arbitrator will under the terms of its engagement have no event later more than thirty (30) days after from the date of referral and no more than ten (10) Business Days from the final submission of all matters in dispute. Judgment may be entered upon information and testimony by the determination of Purchaser and the Accounting Firm in any court having jurisdiction over the Party against Seller Representative within which such determination is to be enforced.
(ii) Notwithstanding any provisions hereof render its written decision with respect to the contrarydisputed items (and only with respect to any unresolved disputed items set forth in a Dispute Notice) and the final calculation of Actual Working Capital, the Accounting Firm Actual Cash, Actual Indebtedness or Actual Transaction Expenses shall be deemed to be acting as an expert and not as an arbiter and based solely on the proceeding before the Accounting Firm shall be an expert determination under the law governing expert determination. None resolution of Sellers or Purchaser shall have any ex parte communications with the Accounting Firm without the prior consent of Purchaser or Sellers, as the case may besuch disputed items. The Accounting Firm Arbitrator shall review such submissions of information and testimony by the Purchaser and the Seller Representative as the Accounting Arbitrator reasonably requires in order to reach a decision with respect to such disputed items referred to it, including such reasonable independent review as the Accounting Arbitrator may require (including written submissions by the Purchaser or the Seller Representative to the Accounting Arbitrator) and base its determination solely on the submissions made by Sellers and Purchaserthereon. No party will have ex parte meetings, the terms of this Agreement and teleconferences or other communication with the Accounting PrinciplesArbitrator, as it is intended for each Party to be included in all discussions and communication with the Accounting Arbitrator. The Accounting Arbitrator shall act as an accounting expert and not an arbitrator. In resolving any such disputed item submitted to the Accounting Firmitem, the Accounting Firm Arbitrator may not assign a value to any item greater than the greatest maximum value claimed for such item claimed by either Purchaser or Sellers party or less than the smallest minimum value claimed for such item claimed by either Purchaser party. Absent fraud or Sellers and such resolution manifest error, the decision of the Accounting Arbitrator shall be deemed final and binding upon the parties and enforceable by the parties in accordance with any court of competent jurisdiction and the Accounting Principles and otherwise in accordance with this Section 3.2.
(iii) In Arbitrator’s final calculation of Actual Working Capital shall be deemed the event Purchaser and Sellers submit any unresolved objections to “Final Working Capital,” the Accounting Firm for resolution as provided in Section 3.2(b)(i)Arbitrator’s final calculation of Actual Cash shall be deemed the “Final Cash,” the Accounting Arbitrator’s final calculation of Actual Indebtedness shall be deemed the “Final Indebtedness,” or the Accounting Arbitrator’s final calculation of Actual Transaction Expenses shall be deemed the “Final Transaction Expenses.” The fees, the cost of any dispute resolution (including the fees costs and expenses of the Accounting Firm Arbitrator shall be borne by the Purchaser, on the one hand, and reasonable attorney fees the Sellers, on the other hand, based on the percentage which the portion of the disputed amount was not awarded to each party bears to the amount actually contested by such party. For example, if the Purchaser claims Actual Working Capital is $1,000 less than the Estimated Working Capital, and the Seller Representative disputes only $500 of the amount claimed by the Purchaser, and if the Accounting Arbitrator ultimately resolves the dispute by awarding the Purchaser with $300 of the $500 contested, then the fees, costs and expenses of the PartiesAccounting Arbitrator will be allocated 60% (i.e., $300/$500) shall be borne by Purchaser to the Sellers and Sellers in inverse proportion as they may prevail on matters resolved by 40% (i.e., $200/$500) to the Purchaser. In connection with the Accounting FirmArbitrator’s determination of any unresolved disputed items, which proportionate allocations also shall be determined by the Accounting Firm at Arbitrator shall also determine the time allocation of its fees, costs and expenses between the determination parties in accordance with the preceding two sentences, taking into account all fees, costs and expenses of the Accounting Firm is rendered Arbitrator already paid by each of the Purchaser and the Seller Representative, as of the date of such determination, and such determination of such allocation shall be conclusive and binding on the merits parties and enforceable by the parties in any court of competent jurisdiction. The parties agree that prior to the time at which the calculations of Final Working Capital, Final Cash, Final Indebtedness and Final Transaction Expenses become final under this Section 2.4, any statement, calculation or notice delivered by any party pursuant to this Section 2.4 is being delivered by such party for settlement purposes only and will be treated as evidence of an offer to compromise pursuant to Rule 408 of the matters submittedFederal Rules of Evidence.
(iv) For purposes of complying with this Section 3.2, Purchaser and Sellers shall provide each other and the other’s auditors reasonable access during normal business hours to the personnel, properties, contracts, books and records relating to the Business, the Acquired Assets and the Assumed Liabilities in connection with the preparation of the Closing Statement and the resolution of any disputed amounts under the Closing Statement.
Appears in 1 contract
Disputed Final Adjustment. (i) The Closing Statement shall become final and binding upon the Parties on the thirtieth (30th) day following delivery thereof, unless Sellers deliver written notice to Purchaser prior to such date of its disagreement with preparation or content of the Closing Statement, including any disagreement with any balances or other amounts reflected in the Closing Data Tape (a “Notice of Disagreement”). During such No later than thirty (30)-day period, Sellers and their designated auditor shall be permitted to reasonable access during normal business hours the working papers of Purchaser relating to the Closing Statement and the Closing Data Tape and to Purchaser’s auditor and representatives who prepared the Closing Statement and the Closing Data Tape. A Notice of Disagreement must describe in reasonable detail the items contained in the Closing Statement that Sellers dispute and the basis for any such disputes. During the thirty (30)-day period 30) days following the delivery by Purchaser of a Notice the statements of DisagreementActual Working Capital and Actual Cash, Sellers and the Sellers’ Representative shall notify Purchaser shall seek in good faith to resolve in writing any differences that they may have with respect to whether it accepts or disputes the matters specified in the Notice of Disagreement and seek to agree on a final determination accuracy of the Closing Net Funds Employed, the Foreign Cash Amount calculation of Actual Working Capital and the Prepaids AmountActual Cash. At the end of During such thirty (30) day period, the Sellers’ Representative and its agents shall be provided with such access to the financial books and records of the Company and its Subsidiaries pertaining to or used in connection with the calculation, determination, and preparation of the statements of Actual Working Capital and Actual Cash as is reasonably requested by the Sellers’ Representative to enable it to evaluate the calculations of Actual Working Capital and Actual Cash prepared by Purchaser. If the Sellers’ Representative accepts the calculation of Actual Working Capital and Actual Cash determined pursuant to Section 2.11(b), or if no agreement on the Closing Net Funds EmployedSellers’ Representative fails within such thirty (30) day period to notify Purchaser of any dispute with respect thereto, then the calculation of Actual Working Capital determined pursuant to Section 2.11(b), shall be the “Final Working Capital” and the calculation of Actual Cash determined pursuant to Section 2.11(b), shall be the “Final Cash” which, in each case, shall deemed final and conclusive and binding upon all parties in all respects.
(ii) If the Sellers’ Representative disputes the accuracy of the calculation of Actual Working Capital or Actual Cash, the Foreign Sellers’ Representative shall provide written notice to Purchaser no later than thirty (30) days following the delivery by Purchaser to the Sellers’ Representative of the calculation of Actual Working Capital and Actual Cash Amount and the Prepaids Amount has been reached, Sellers and Purchaser shall engage a nationally recognized independent accounting firm (the “Accounting FirmDispute Notice”), setting forth in reasonable detail those items that the Sellers’ Representative disputes. During the thirty (30) for arbitration day period following delivery of any a Dispute Notice, Purchaser and the Sellers’ Representative shall negotiate in good faith to resolve their disagreements over the disputed items. During such thirty (30) day period and until the final determination of Final Working Capital and/or Final Cash in accordance with this Section 2.11(c)(ii), the Sellers’ Representative and its agents shall be provided with such access to the financial books and records of the Company and its Subsidiaries pertaining to or used in connection with the calculation, determination, and preparation of the statement of Actual Working Capital or Actual Cash as it may reasonably request to enable it to address all matters that remain set forth in dispute and were properly included any Dispute Notice. If the parties resolve their differences over the disputed items in accordance with the Notice of Disagreement. The Accounting Firm foregoing procedure, “Final Working Capital” and/or “Final Cash” shall be Xxxxx Xxxxxxxx LLP orthe amounts agreed upon by them. If the parties fail to resolve their differences over the disputed items within such thirty (30) day period, if such firm is unable or unwilling to act, such other then Purchaser and the Sellers’ Representative shall forthwith jointly request that a nationally recognized independent public accounting firm as shall be mutually agreed upon by the Parties in writing. As promptly Purchaser and the Sellers’ Representative (the “Accounting Arbitrator”) make a binding determination as practicable after the engagement of the Accounting Firm, Sellers shall submit any unresolved elements set forth in the Notice of Disagreement to the Accounting Firm in writing (with a copy to Purchaser), supported by any documents and arguments upon which they rely. As promptly as practicable thereafter, Purchaser shall submit its response to the Accounting Firm (with a copy to Sellers) supported by any documents and arguments upon which it relies. The Parties shall instruct the Accounting Firm to render its reasoned written decision with respect to each disagreement asserted disputed items in accordance with this Section 3.2(b)(iAgreement.
(iii) as promptly as practicable but in The Accounting Arbitrator will under the terms of its engagement have no event later more than thirty (30) days after from the date of referral and no more than ten (10) Business Days from the final submission of all matters in dispute. Judgment may be entered upon information and testimony by Purchaser and the determination of the Accounting Firm in any court having jurisdiction over the Party against Sellers’ Representative within which such determination is to be enforced.
(ii) Notwithstanding any provisions hereof render its written decision with respect to the contrary, disputed items (and only with respect to any unresolved disputed items set forth in the Accounting Firm Dispute Notice) and the final calculation of Actual Working Capital and/or Actual Cash shall be deemed to be acting as an expert and not as an arbiter and based solely on the proceeding before the Accounting Firm shall be an expert determination under the law governing expert determination. None resolution of Sellers or Purchaser shall have any ex parte communications with the Accounting Firm without the prior consent of Purchaser or Sellers, as the case may besuch disputed items. The Accounting Firm Arbitrator shall review such submissions and base its determination solely on the submissions made by Sellers and Purchaser, the terms of this Agreement and the Accounting Principlessuch submissions. In resolving any disputed item submitted to the Accounting Firmitem, the Accounting Firm Arbitrator may not assign a value to any item greater than the greatest maximum value claimed for such item claimed by either Purchaser or Sellers party or less than the smallest minimum value claimed for such item claimed by either Purchaser or Sellers and such resolution party. The decision of the Accounting Arbitrator shall be in accordance with deemed final and binding upon the parties and enforceable by any court of competent jurisdiction and the Accounting Principles and otherwise in accordance with this Section 3.2.
(iii) In Arbitrator’s final calculation of Actual Working Capital shall be deemed the event Purchaser and Sellers submit any unresolved objections to “Final Working Capital” and/or the Accounting Firm for resolution as provided in Section 3.2(b)(i), Arbitrator’s final calculation of Actual Cash shall be deemed the cost of any dispute resolution (including the “Final Cash.” The fees and expenses of the Accounting Firm Arbitrator shall be allocated to be paid by Purchaser, on the one hand, and reasonable attorney fees and expenses the Sellers’ Representative (on behalf of the Parties) shall be borne Sellers and the Company), on the other, based upon the percentage that the portion of the contested amount not awarded to each party bears to the amount actually contested by Purchaser and Sellers in inverse proportion such party, as they may prevail on matters resolved by the Accounting Firm, which proportionate allocations also shall be determined by the Accounting Firm at the time the determination of the Accounting Firm is rendered on the merits of the matters submittedArbitrator.
(iv) For purposes of complying with this Section 3.2, Purchaser and Sellers shall provide each other and the other’s auditors reasonable access during normal business hours to the personnel, properties, contracts, books and records relating to the Business, the Acquired Assets and the Assumed Liabilities in connection with the preparation of the Closing Statement and the resolution of any disputed amounts under the Closing Statement.
Appears in 1 contract
Samples: Merger Agreement (Nordson Corp)
Disputed Final Adjustment. (i) The Closing Statement No later than 30 days following the delivery by Purchaser of the calculation of Actual Working Capital and Actual Cash, the Sellers’ Representative shall become notify Purchaser in writing whether it accepts or disputes the accuracy of the calculation of Actual Working Capital and Actual Cash. During such 30 day period, the Sellers’ Representative and its agents shall be provided with such access to the financial books and records of Purchaser and the Company Group as well as any relevant work papers as it may reasonably request to enable it to evaluate the calculations of Actual Working Capital and Actual Cash prepared by Purchaser. If the Sellers’ Representative accepts the calculation of Actual Working Capital and Actual Cash determined pursuant to Section 2.5(b), or if the Sellers’ Representative fails within such 30 day period to notify Purchaser of any dispute with respect thereto, then the calculation of Actual Working Capital determined pursuant to Section 2.5(b) shall be the “Final Working Capital” and the calculation of Actual Cash determined pursuant to Section 2.5(b) shall be the “Final Cash” which, in each case, shall be deemed final and conclusive and binding upon all parties in all respects.
(ii) If the Parties on Sellers’ Representative disputes the thirtieth (30th) day following delivery thereofaccuracy of the calculation of Actual Working Capital or Actual Cash, unless Sellers deliver the Sellers’ Representative shall provide written notice to Purchaser prior no later than 30 days following the delivery by Purchaser to such date of its disagreement with preparation or content the Sellers’ Representative of the Closing Statement, including any disagreement with any balances or other amounts reflected in calculation of Actual Working Capital and Actual Cash (the Closing Data Tape (a “Notice of DisagreementDispute Notice”). During such thirty (30)-day period, Sellers and their designated auditor shall be permitted to reasonable access during normal business hours the working papers of Purchaser relating to the Closing Statement and the Closing Data Tape and to Purchaser’s auditor and representatives who prepared the Closing Statement and the Closing Data Tape. A Notice of Disagreement must describe setting forth in reasonable detail those items that the items contained in the Closing Statement that Sellers dispute and the basis for any such Sellers’ Representative disputes. During the thirty (30)-day 30 day period following the delivery of a Notice of DisagreementDispute Notice, Sellers Purchaser and Purchaser the Sellers’ Representative shall seek negotiate in good faith with a view to resolve in writing any differences that they may have with respect to resolving their disagreements over the matters specified in disputed items. During such 30 day period and until the Notice of Disagreement and seek to agree on a final determination of Actual Working Capital and/or Actual Cash in accordance with this Section 2.5(c)(ii) or Section 2.5(c)(iii), as the Closing Net Funds Employedcase may be (as so determined, or as determined pursuant to Section 2.5(c)(i) above, “Final Working Capital” and “Final Cash,” respectively), the Foreign Sellers’ Representative and its agents shall be provided with such access to the financial books and records of the Company Group and Purchaser as it may reasonably request to enable it to address all matters set forth in any Dispute Notice. If the parties resolve their differences over the disputed items in accordance with the foregoing procedure, Final Working Capital and/or Final Cash Amount and shall be the Prepaids Amountamounts agreed upon by them. At If the end of parties fail to resolve their differences over the disputed items within such thirty (30) 30 day period, if no agreement on the Closing Net Funds Employed, the Foreign Cash Amount then Purchaser and the Prepaids Amount has been reached, Sellers and Purchaser Sellers’ Representative shall engage forthwith jointly request that a nationally recognized independent accounting firm (the “Accounting Firm”) for arbitration of any and all matters that remain in dispute and were properly included in the Notice of Disagreement. The Accounting Firm shall be Xxxxx Xxxxxxxx LLP or, if such firm is unable or unwilling to act, such other nationally recognized independent public accounting firm as shall be mutually agreed upon by the Parties in writing. As promptly Purchaser and the Sellers’ Representative (the “Accounting Arbitrator”) make a binding determination as practicable after the engagement of the Accounting Firm, Sellers shall submit any unresolved elements set forth in the Notice of Disagreement to the disputed items in accordance with this Agreement.
(iii) The Accounting Firm in writing (with a copy to Purchaser), supported Arbitrator will under the terms of its engagement have no more than 30 days from the date of referral and no more than ten Business Days from the final submission of information and testimony by any documents Purchaser and arguments upon the Sellers’ Representative within which they rely. As promptly as practicable thereafter, Purchaser shall submit its response to the Accounting Firm (with a copy to Sellers) supported by any documents and arguments upon which it relies. The Parties shall instruct the Accounting Firm to render its reasoned written decision with respect to each disagreement asserted the disputed items (and only with respect to any unresolved disputed items set forth in accordance with this Section 3.2(b)(ithe Dispute Notice) as promptly as practicable but in no event later than thirty (30) days after submission and the final calculation of all matters in dispute. 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.
(ii) Notwithstanding any provisions hereof to the contrary, the Accounting Firm Actual Working Capital and/or Actual Cash shall be deemed to be acting as an expert and not as an arbiter and based solely on the proceeding before the Accounting Firm shall be an expert determination under the law governing expert determination. None resolution of Sellers or Purchaser shall have any ex parte communications with the Accounting Firm without the prior consent of Purchaser or Sellers, as the case may besuch disputed items. The Accounting Firm Arbitrator shall review such submissions and base its determination solely on the submissions made by Sellers and Purchaser, the terms of this Agreement and the Accounting Principlessuch submissions. In resolving any disputed item submitted to the Accounting Firmitem, the Accounting Firm Arbitrator may not assign a value to any item greater than the greatest maximum value claimed for such item claimed by either Purchaser or Sellers party or less than the smallest minimum value claimed for such item claimed by either Purchaser or Sellers and such resolution party. The decision of the Accounting Arbitrator shall be in accordance with deemed final and binding upon the parties and enforceable by any court of competent jurisdiction and the Accounting Principles and otherwise in accordance with this Section 3.2.
(iii) In Arbitrator’s final calculation of Actual Working Capital shall be deemed the event Purchaser and Sellers submit any unresolved objections to Final Working Capital and/or the Accounting Firm for resolution as provided in Section 3.2(b)(i), Arbitrator’s final calculation of Actual Cash shall be deemed the cost of any dispute resolution (including the Final Cash. The fees and expenses of the Accounting Firm Arbitrator shall be allocated to be paid by Purchaser, on the one hand, and reasonable attorney fees and expenses the Sellers’ Representative (on behalf of the Parties) shall be borne Sellers), on the other, based upon the percentage that the portion of the contested amount not awarded to each party bears to the amount actually contested by Purchaser and Sellers in inverse proportion such party, as they may prevail on matters resolved by the Accounting Firm, which proportionate allocations also shall be determined by the Accounting Firm at the time the determination of the Accounting Firm is rendered on the merits of the matters submittedArbitrator.
(iv) For purposes of complying with this Section 3.2, Purchaser and Sellers shall provide each other and the other’s auditors reasonable access during normal business hours to the personnel, properties, contracts, books and records relating to the Business, the Acquired Assets and the Assumed Liabilities in connection with the preparation of the Closing Statement and the resolution of any disputed amounts under the Closing Statement.
Appears in 1 contract
Samples: Purchase Agreement (Blackbaud Inc)
Disputed Final Adjustment. (i) The Closing Statement shall become final and binding upon the Parties on the thirtieth (30th) day following delivery thereof, unless Sellers deliver written notice to Purchaser prior to such date of its disagreement with preparation or content of the Closing Statement, including any disagreement with any balances or other amounts reflected in the Closing Data Tape (a “Notice of Disagreement”). During such No later than thirty (30)-day period, Sellers and their designated auditor shall be permitted to reasonable access during normal business hours the working papers of Purchaser relating to the Closing Statement and the Closing Data Tape and to Purchaser’s auditor and representatives who prepared the Closing Statement and the Closing Data Tape. A Notice of Disagreement must describe in reasonable detail the items contained in the Closing Statement that Sellers dispute and the basis for any such disputes. During the thirty (30)-day period 30) days following the delivery by Parent of a Notice of Disagreementthe Proposed Purchase Price Calculations, Sellers and Purchaser the Company Stockholders’ Representative shall seek in good faith to resolve notify Parent in writing any differences that they may have with respect to whether it accepts or disputes the matters specified in the Notice of Disagreement and seek to agree on a final determination accuracy of the Closing Net Funds Employed, the Foreign Cash Amount and the Prepaids AmountProposed Purchase Price Calculations. At the end of During such thirty (30) day period, if no agreement on the Closing Net Funds Employed, Company Stockholders’ Representative and its agents shall be provided with such access to the Foreign Cash Amount financial books and records of Parent and the Prepaids Amount has been reachedCompany as well as any relevant work papers, Sellers employees and Purchaser shall engage a nationally recognized independent accounting firm (accountants of Parent and the “Accounting Firm”) for arbitration of any and all matters that remain Surviving Corporation used in dispute and were properly included or who have information used in calculating the Notice of Disagreement. The Accounting Firm shall be Xxxxx Xxxxxxxx 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 the Parties in writing. As promptly as practicable after the engagement of the Accounting Firm, Sellers shall submit any unresolved elements amounts set forth in the Notice of Disagreement Proposed Purchase Price Calculations, in each case, as the Company Stockholders’ Representative may reasonably request to enable it to evaluate the Accounting Firm in writing (with a copy Proposed Purchase Price Calculations. If the Company Stockholders’ Representative accepts the Proposed Purchase Price Calculations determined pursuant to PurchaserSection 2.5(b), supported by or if the Company Stockholders’ Representative fails within such thirty (30) day period to notify Parent of any documents and arguments upon which they rely. As promptly as practicable thereafter, Purchaser shall submit its response to the Accounting Firm (with a copy to Sellers) supported by any documents and arguments upon which it relies. The Parties shall instruct the Accounting Firm to render its reasoned written decision dispute with respect thereto, then the Proposed Purchase Price Calculations as a result thereof shall be deemed final, conclusive and binding on the Equity Holders and the Company Stockholder Representative for all purposes hereunder (including for purposes of determining the True-up Amount).
(ii) If the Company Stockholders’ Representative disputes the accuracy of any component of the Proposed Purchase Price Calculations, the Company Stockholders’ Representative shall provide written notice (the “Dispute Notice”) to each disagreement asserted in accordance with this Section 3.2(b)(i) as promptly as practicable but in Parent no event later than thirty (30) days after submission following the delivery by Parent to the Company Stockholders’ Representative of all matters the Proposed Purchase Price Calculations, setting forth those items that the Company Stockholders’ Representative disputes. During the thirty (30) day period following delivery of a Dispute Notice, Parent and the Company Stockholders’ Representative shall negotiate in disputegood faith with a view to resolving their disagreements over the disputed items. Judgment may be entered upon During such thirty (30) day period and until the final determination of the Accounting Firm components of the Proposed Purchase Price Calculations in any court having jurisdiction over the Party against which such determination is to be enforced.
(iiaccordance with this Section 2.5(c)(ii) Notwithstanding any provisions hereof to the contrary, the Accounting Firm shall be deemed to be acting as an expert and not as an arbiter and the proceeding before the Accounting Firm shall be an expert determination under the law governing expert determination. None of Sellers or Purchaser shall have any ex parte communications with the Accounting Firm without the prior consent of Purchaser or SellersSection 2.5(c)(i), as the case may be, the Company Stockholders’ Representative and its agents shall be provided with such access to the financial books and records of Parent and the Company as the Company Stockholders’ Representative may reasonably request, and Parent and its agents shall be provided with such access during normal business hours and with reasonable prior written notice to the financial books and records of the Company Stockholders’ Representative as Parent may reasonably request. If the parties resolve their differences over the disputed items in accordance with the foregoing procedure, the components of the Proposed Purchase Price Calculations and the True-up Amount as a result thereof shall be the amounts agreed upon by them. If the parties fail to resolve their differences over the disputed items within such thirty (30) day period, then Parent and the Company Stockholders’ Representative shall promptly refer to the dispute to the Accounting Arbitrator and request that the Accounting Arbitrator make a binding determination as to the disputed items and the calculation of the True-up Amount as a result of the resolution thereof in accordance with this Agreement.
(iii) The Accounting Arbitrator will under the terms of its engagement have no more than thirty (30) days from the date of referral within which to render its written decision with respect to the disputed items (and only with respect to any unresolved disputed items set forth in the Dispute Notice) and the final calculation of the True-up Amount as a result thereof shall be based solely on the resolution of such disputed items. The Accounting Firm Arbitrator shall review such the submissions of information and testimony by Parent and the Company Stockholders’ Representative and base its determination solely on the submissions made by Sellers and Purchaser, the terms of this Agreement and the Accounting Principlessuch submissions. In resolving any disputed item submitted to the Accounting Firmitem, the Accounting Firm Arbitrator may not assign a value to any item greater than the greatest maximum value claimed for such item claimed by either Purchaser or Sellers party or less than the smallest minimum value claimed for such item claimed by either Purchaser or Sellers and such resolution party. The decision of the Accounting Arbitrator shall be in accordance with deemed final and binding upon the Accounting Principles parties, non-appealable and otherwise in accordance with this Section 3.2.
(iii) In the event Purchaser and Sellers submit enforceable by any unresolved objections to the Accounting Firm for resolution as provided in Section 3.2(b)(i), the cost court of any dispute resolution (including the competent jurisdiction. The fees and expenses of the Accounting Firm Arbitrator shall be allocated to be paid by Parent, on the one hand, and reasonable attorney fees and expenses the Company Stockholders’ Representative (on behalf of the Parties) shall be borne Equity Holders), on the other, based upon the percentage that the portion of the contested amount not awarded to each party bears to the amount actually contested by Purchaser and Sellers in inverse proportion such party, as they may prevail on matters resolved by the Accounting Firm, which proportionate allocations also shall be determined by the Accounting Firm at the time the determination of the Accounting Firm is rendered on the merits of the matters submittedArbitrator.
(iv) For purposes of complying with this Section 3.2, Purchaser and Sellers shall provide each other and the other’s auditors reasonable access during normal business hours to the personnel, properties, contracts, books and records relating to the Business, the Acquired Assets and the Assumed Liabilities in connection with the preparation of the Closing Statement and the resolution of any disputed amounts under the Closing Statement.
Appears in 1 contract
Disputed Final Adjustment. (i) The Closing Statement No later than forty-five (45) days following the delivery by Acquirer of the calculation of Actual Working Capital, Actual Cash and Actual Excess Cash Amount, Actual Company Indebtedness and/or Actual Company Transaction Expenses, the Stockholders’ Agent shall become notify Acquirer in writing whether it accepts or disputes the accuracy of the calculation of Actual Working Capital, Actual Cash and Actual Excess Cash Amount, Actual Company Transaction Expenses and/or Actual Company Indebtedness. During such forty-five (45) day period, the Stockholders’ Agent and its advisors (including, without limitation, its independent accounting firm) shall be provided with such access to the financial books and records (subject to the execution of customary work paper access letters) and personnel of the Company, its Subsidiary and Acquirer as it may reasonably request to enable it to evaluate the calculations of Actual Working Capital, Actual Cash and Actual Excess Cash Amount, Actual Company Transaction Expenses and Actual Company Indebtedness prepared by Acquirer. If the Stockholders’ Agent accepts the calculation of Actual Working Capital, Actual Cash and Actual Excess Cash Amount, Actual Company Transaction Expenses and/or Actual Company Indebtedness determined pursuant to Section 1.17(b), or if the Stockholders’ Agent fails within such forty-five (45) day period to notify Acquirer of any dispute with respect thereto, then the calculation of Actual Working Capital determined pursuant to Section 1.17(b) shall be the “Final Working Capital,” the calculation of Actual Cash and Actual Excess Cash Amount determined pursuant to Section 1.17(b) shall be the “Final Cash” and “Final Excess Cash Amount,” respectively, the calculation of the Actual Company Indebtedness determined pursuant to Section 1.17(b) shall be the “Final Company Indebtedness” and the calculation of Actual Company Transaction Expenses determined pursuant to Section 1.17(b) shall be the “Final Company Transaction Expenses” which, in each case, shall be deemed final and conclusive and binding upon the Parties on the thirtieth (30th) day following delivery thereof, unless Sellers deliver written notice to Purchaser prior to such date of its disagreement with preparation or content of the Closing Statement, including any disagreement with any balances or other amounts reflected parties hereto in the Closing Data Tape (a “Notice of Disagreement”). During such thirty (30)-day period, Sellers and their designated auditor shall be permitted to reasonable access during normal business hours the working papers of Purchaser relating to the Closing Statement and the Closing Data Tape and to Purchaser’s auditor and representatives who prepared the Closing Statement and the Closing Data Tape. A Notice of Disagreement must describe in reasonable detail the items contained in the Closing Statement that Sellers dispute and the basis for any such disputes. During the thirty (30)-day period following the delivery of a Notice of Disagreement, Sellers and Purchaser shall seek in good faith to resolve in writing any differences that they may have with respect to the matters specified in the Notice of Disagreement and seek to agree on a final determination of the Closing Net Funds Employed, the Foreign Cash Amount and the Prepaids Amount. At the end of such thirty (30) day period, if no agreement on the Closing Net Funds Employed, the Foreign Cash Amount and the Prepaids Amount has been reached, Sellers and Purchaser shall engage a nationally recognized independent accounting firm (the “Accounting Firm”) for arbitration of any and all matters that remain in dispute and were properly included in the Notice of Disagreement. The Accounting Firm shall be Xxxxx Xxxxxxxx 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 the Parties in writing. As promptly as practicable after the engagement of the Accounting Firm, Sellers shall submit any unresolved elements set forth in the Notice of Disagreement to the Accounting Firm in writing (with a copy to Purchaser), supported by any documents and arguments upon which they rely. As promptly as practicable thereafter, Purchaser shall submit its response to the Accounting Firm (with a copy to Sellers) supported by any documents and arguments upon which it relies. The Parties shall instruct the Accounting Firm to render its reasoned written decision with respect to each disagreement asserted in accordance with this Section 3.2(b)(i) as promptly as practicable but in no event later than thirty (30) days after submission of all matters in dispute. 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 enforcedrespects.
(ii) Notwithstanding any provisions hereof to the contrary, the Accounting Firm shall be deemed to be acting as an expert and not as an arbiter and the proceeding before the Accounting Firm shall be an expert determination under the law governing expert determination. None of Sellers or Purchaser shall have any ex parte communications with the Accounting Firm without the prior consent of Purchaser or Sellers, as the case may be. The Accounting Firm shall review such submissions and base its determination solely on the submissions made by Sellers and Purchaser, the terms of this Agreement and the Accounting Principles. In resolving any disputed item submitted to the Accounting Firm, the Accounting Firm may not assign a value to any item greater than the greatest value claimed for such item by either Purchaser or Sellers or less than the smallest value claimed for such item by either Purchaser or Sellers and such resolution shall be in accordance with the Accounting Principles and otherwise in accordance with this Section 3.2.
(iii) In the event Purchaser and Sellers submit any unresolved objections to the Accounting Firm for resolution as provided in Section 3.2(b)(i), the cost of any dispute resolution (including the fees and expenses of the Accounting Firm and reasonable attorney fees and expenses of the Parties) shall be borne by Purchaser and Sellers in inverse proportion as they may prevail on matters resolved by the Accounting Firm, which proportionate allocations also shall be determined by the Accounting Firm at the time the determination of the Accounting Firm is rendered on the merits of the matters submitted.
(iv) For purposes of complying with this Section 3.2, Purchaser and Sellers shall provide each other and the other’s auditors reasonable access during normal business hours to the personnel, properties, contracts, books and records relating to the Business, the Acquired Assets and the Assumed Liabilities in connection with the preparation of the Closing Statement and the resolution of any disputed amounts under the Closing Statement.
Appears in 1 contract
Samples: Merger Agreement (MongoDB, Inc.)
Disputed Final Adjustment. (i) The Closing Statement shall become final and binding upon No later than forty-five (45) days following the Parties on the thirtieth (30th) day following delivery thereof, unless Sellers deliver written notice to Purchaser prior to such date of its disagreement with preparation or content by Parent of the Closing Statement, including the Stockholder Representative shall notify Parent in writing whether it accepts or disputes the accuracy of any disagreement with any balances or other amounts reflected calculation set forth in the Closing Data Tape (a “Notice of Disagreement”)Statement. During such thirty forty-five (30)-day 45) day period, Sellers the Stockholder Representative and their designated auditor its agents shall be permitted to provided with reasonable access access, during normal regular business hours and upon reasonable prior notice, to the working papers of Purchaser relating to financial books and records on which the Closing Statement and the Closing Data Tape is based and to Purchaser’s auditor the employees and representatives agents of the Surviving Company and its Affiliates who prepared the Closing Statement Statement. If the Stockholder Representative accepts the Closing Statement, or if the Stockholder Representative fails within such forty-five (45) day period to so notify Parent of any dispute with respect thereto, then the calculation of Actual Company Cash determined pursuant to Section 1.11(b) shall be the “Final Company Cash,” the calculation of Actual Net Working Capital determined pursuant to Section 1.11(b) shall be the “Final Net Working Capital,” the calculation of Actual Indebtedness determined pursuant to Section 1.11(b) shall be the “Final Indebtedness,” and the calculation of Actual Transaction Expenses determined pursuant to Section 1.11(b) shall be the “Final Transaction Expenses,” which, in each case, shall deemed final and conclusive and binding upon all parties in all respects.
(ii) If the Stockholder Representative disputes the accuracy of any calculation set forth in the Closing Data Tape. A Notice Statement, the Stockholder Representative shall provide written notice (the “Dispute Notice”) to Parent no later than forty-five (45) days following the delivery by Parent to the Stockholder Representative of Disagreement must describe the Closing Statement, setting forth in reasonable detail the those items contained set forth in the Closing Statement that Sellers dispute and the basis for any such Stockholder Representative disputes. During the thirty (30)-day 30) day period following the delivery of a Dispute Notice, (A) any aspect of the Closing Statement that is not disputed in the Dispute Notice of Disagreement, Sellers shall become final and Purchaser binding and (B) Parent and the Stockholder Representative shall seek negotiate in good faith with a view to resolve in writing any differences that they may have with respect to resolving their disagreements over the matters specified in disputed items. During such thirty (30) day period or until the Notice of Disagreement and seek to agree on a earlier final determination of Final Company Cash, Final Net Working Capital, Final Indebtedness, and Final Transaction Expenses in accordance with this Section 1.11(c)(ii), the Stockholder Representative and its agents shall be provided with reasonable access, during regular business hours and upon reasonable prior notice, to the financial books and records on which the Closing Net Funds Employed, Statement is based and to the Foreign Cash Amount employees and agents of the Surviving Company and its Affiliates who prepared the Closing Statement so as to enable it to verify the amounts set forth in the Closing Statement. If Parent and the Prepaids AmountStockholder Representative resolve their differences over such disputed items in accordance with the foregoing procedure, Final Company Cash, Final Net Working Capital, Final Indebtedness, and Final Transaction Expenses shall be the amounts agreed upon by them. At If the end of Parent and the Stockholder Representative fail to resolve their differences over such disputed items within such thirty (30) day period, if no agreement on the Closing Net Funds Employed, the Foreign Cash Amount then each of Parent and the Prepaids Amount has been reached, Sellers and Purchaser shall engage a nationally recognized independent accounting firm (the “Accounting Firm”) for arbitration of any and all matters that remain in dispute and were properly included in the Notice of Disagreement. The Accounting Firm Stockholder Representative shall be Xxxxx Xxxxxxxx entitled to request that Ernst and Young LLP or, if such firm is unable (or unwilling to act, such other another nationally recognized independent public accounting firm or valuation firm as shall be mutually agreed upon by the Parties in writing. As promptly as practicable after Parent and the engagement of Stockholder Representative) (the “Accounting Firm, Sellers shall submit any unresolved elements set forth in the Notice of Disagreement to the Accounting Firm in writing (with a copy to PurchaserExpert”), supported by any documents and arguments upon which they rely. As promptly as practicable thereafter, Purchaser shall submit its response to the Accounting Firm (with a copy to Sellers) supported by any documents and arguments upon which it relies. The Parties shall instruct the Accounting Firm to render its reasoned written decision with respect to each disagreement asserted in accordance with this Section 3.2(b)(i) as promptly as practicable but in no event later than thirty (30) days after submission of all matters in dispute. 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.
(ii) Notwithstanding any provisions hereof to the contrary, the Accounting Firm shall be deemed to be acting as an expert and not as an arbiter arbitrator, make a final and binding determination as to only the disputed items in accordance with this Agreement; provided that the Party submitting the disputed items to the Accounting Expert provides prior written notice of such submission to the nonsubmitting Party.
(iii) The Accounting Expert will, under the terms of its engagement, have no more than thirty (30) days from the date of referral and no more than ten (10) Business Days from the final submission of information by Parent and the proceeding before Stockholder Representative with respect to the unresolved disputed items within which to render its written decision with respect to the disputed items (and only with respect to any unresolved disputed items set forth in the Dispute Notice). Parent and the Stockholder Representative shall deliver written submissions to the Accounting Firm shall be an expert determination under Expert, if at all, no later than ten (10) Business Days after the law governing expert determination. None date of Sellers or Purchaser shall have any ex parte communications with referral of the disputed matters to the Accounting Firm without the prior consent of Purchaser or Sellers, as the case may beExpert. The Accounting Firm Expert, acting as an expert and not as an arbitrator, shall review such written submissions and base its determination solely on the submissions made such written submissions, and not by Sellers and Purchaser, the terms of this Agreement and the Accounting Principlesindependent review. In resolving any disputed item submitted to the Accounting Firmitem, the Accounting Firm Expert shall resolve all disputed items in accordance with the defined terms and other provisions of this Agreement (including Schedules II and III hereto) and may not assign a value to any item greater than the greatest maximum value claimed for such item claimed by either Purchaser or Sellers Party or less than the smallest minimum value claimed for such item claimed by either Purchaser or Sellers and such resolution Party. Absent manifest error, the decision of the Accounting Expert shall be in accordance with final and binding upon the Parties and enforceable by any court of competent jurisdiction and the Accounting Principles Expert’s final determination of Company Cash, Net Working Capital, Indebtedness, and otherwise Transaction Expenses, as applicable, shall be deemed the Final Company Cash, Final Net Working Capital, Final Indebtedness, and Final Transaction Expenses, respectively. The fees of the Accounting Expert will be shared by Parent, on the one hand, and the Stockholder Representative (on behalf of the Sellers), on the other hand, in accordance with this Section 3.2.
(iii) In the event Purchaser and Sellers submit any unresolved objections percentage that is inversely proportionate to the percentage of the aggregate amount of all items submitted to the Accounting Firm for resolution Expert as provided disputed that are resolved in Section 3.2(b)(i), the cost such Party’s favor. The Accounting Expert shall include such apportionment of any dispute resolution (including the its fees and expenses of the Accounting Firm and reasonable attorney fees and expenses of the Parties) shall be borne by Purchaser and Sellers in inverse proportion as they may prevail on matters resolved by the Accounting Firm, which proportionate allocations also shall be determined by the Accounting Firm at the time the determination of the Accounting Firm is rendered on the merits of the matters submitted.
(iv) For purposes of complying with this Section 3.2, Purchaser and Sellers shall provide each other its written report to Parent and the other’s auditors reasonable access during normal business hours to the personnel, properties, contracts, books and records relating to the Business, the Acquired Assets and the Assumed Liabilities in connection with the preparation of the Closing Statement and the resolution of any disputed amounts under the Closing StatementStockholder Representative.
Appears in 1 contract
Samples: Agreement and Plan of Merger (Forrester Research, Inc.)
Disputed Final Adjustment. (i) The Within thirty (30) days following receipt by Seller of the Closing Statement Statement, Seller shall become final and binding upon the Parties on the thirtieth (30th) day following delivery thereof, unless Sellers deliver written notice (an “Objection Notice”) to Purchaser prior Buyer of any dispute it has with respect to such date of its disagreement with the preparation or content of the Closing Statement, including any disagreement with any balances or other amounts reflected in the Closing Data Tape (a “. An Objection Notice of Disagreement”). During such thirty (30)-day period, Sellers and their designated auditor shall be permitted to reasonable access during normal business hours the working papers of Purchaser relating to the Closing Statement and the Closing Data Tape and to Purchaser’s auditor and representatives who prepared the Closing Statement and the Closing Data Tape. A Notice of Disagreement must describe in reasonable detail the items contained in the Closing Statement that Sellers dispute Seller disputes and the basis for any such disputes. During Any items not disputed in the Objection Notice will be deemed to have been accepted by Seller and shall be deemed final, conclusive and binding on the Parties hereto. If Seller does not deliver an Objection Notice with respect to the Closing Statement within such thirty (30)-day period following period, such statement will be final, conclusive and binding on the delivery of Parties hereto. If Seller delivers a Notice of Disagreementtimely Objection Notice, Sellers Buyer and Purchaser Seller shall seek negotiate in good faith to resolve in writing any differences that they may have with respect such dispute. If Buyer and Seller, notwithstanding such good faith effort, fail to the matters specified in the Notice of Disagreement and seek to agree on a final determination of the Closing Net Funds Employed, the Foreign Cash Amount and the Prepaids Amount. At the end of resolve such dispute within thirty (30) day perioddays after Seller delivers an Objection Notice, if no agreement on then Buyer and Seller jointly shall engage the Closing Net Funds Employed, the Foreign Cash Amount Expert to resolve such dispute in accordance with this Agreement and the Prepaids Amount has been reached, Sellers and Purchaser shall engage a nationally recognized independent accounting firm (the “Accounting Firm”) for arbitration of any and all matters that remain standards set forth in dispute and were properly included in the Notice of Disagreement. The Accounting Firm shall be Xxxxx Xxxxxxxx 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 the Parties in writingthis Section 1.4(b). As promptly as practicable thereafter (and, in any event, within thirty (30) days after the engagement of the Accounting FirmExpert’s engagement), Sellers Seller shall submit any unresolved elements set forth in the Objection Notice of Disagreement to the Accounting Firm Expert in writing (with a copy to PurchaserBuyer), supported by any documents and arguments upon which they relyit relies. As promptly as practicable thereafterthereafter (and, Purchaser in any event, within fifteen (15) days following Seller’s submission of such unresolved elements), Buyer shall submit its response to the Accounting Firm Expert (with a copy to SellersSeller) supported by any documents and arguments upon which it relies. The Parties shall instruct the Accounting Firm to render its reasoned written decision with respect to each disagreement asserted in accordance with this Section 3.2(b)(i) as promptly as practicable but in no event later than thirty (30) days after submission of all matters in dispute. 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.
(ii) Notwithstanding any provisions hereof to the contrary, the Accounting Firm Expert shall be deemed to be acting as an expert and not as an arbiter and the proceeding before the Accounting Firm Expert shall be an expert determination under the law Law governing expert determinationdetermination and appraisal proceedings. None of Sellers The Expert may, at its discretion, conduct a conference concerning the disagreement with Seller and Buyer. In connection with such process, other than any such conference, there shall be no hearings, oral examinations, testimony, depositions, discovery or Purchaser other similar proceedings conducted by any party or by the Expert. Neither Seller nor Buyer shall have any ex parte communications with the Accounting Firm Expert without the prior consent of Purchaser Buyer or SellersSeller, as the case may be. The Accounting Firm Expert shall review such submissions and base its determination solely on the submissions made by Sellers Seller and Purchaser, Buyer and not by any independent review. Buyer and Seller shall request that the terms Expert render its determination as soon as reasonably possible following its receipt of this Agreement and Buyer’s response. The scope of the Accounting Principlesdisputes to be resolved by the Expert is limited to the unresolved items in the Objection Notice. In resolving any disputed item submitted to the Accounting Firmitem, the Accounting Firm Expert may not assign a value to any item greater than the greatest value claimed for such item by either Purchaser Buyer or Sellers Seller or less than the smallest value claimed for such item by either Purchaser Buyer or Sellers Seller. All determinations made by the Expert will be final, conclusive and such resolution shall binding on the Parties and will be in accordance with the Accounting Principles and otherwise in accordance with this Section 3.2enforceable by any court of competent jurisdiction.
(iiiii) In the event Purchaser Seller and Sellers Buyer submit any unresolved objections to the Accounting Firm Expert for resolution as provided in Section 3.2(b)(i)1.4(b)(i) above, the cost of any dispute resolution (including the fees fees, costs and expenses of the Accounting Firm and reasonable attorney fees and expenses of the PartiesExpert (A) shall be borne paid by Purchaser and Sellers Buyer in inverse the proportion that the aggregate dollar amount of such disputed items so submitted that are successfully disputed by Seller (as they may prevail on matters resolved by the Accounting Firm, which proportionate allocations also shall be finally determined by the Accounting Firm at Expert) bears to the time aggregate dollar amount of such items so submitted and (B) shall be paid by Seller in the determination proportion that the aggregate dollar amount of such disputed items so submitted that are unsuccessfully disputed by Seller (as finally determined by the Accounting Firm is rendered on Expert) bears to the merits aggregate dollar amount of the matters such items so submitted.
(iviii) For purposes of complying with the terms set forth in this Section 3.21.4, Purchaser Buyer and Sellers Seller shall provide each other cooperate with and the other’s auditors reasonable access during normal business hours make available to the personnelother party and its representatives all information, propertiesrecords, contracts, books data and records relating to the Business, the Acquired Assets and the Assumed Liabilities working papers as may be reasonably requested in connection with the preparation and analysis of the Closing Statement and the resolution of any disputed amounts disputes under the Closing Statement; provided, that in order to review such information, records, data and working papers, Seller and its representatives shall execute any releases or waivers customarily required by Buyer’s independent accountants in connection with such review.
Appears in 1 contract
Samples: Asset Purchase and Sale Agreement (Merrimack Pharmaceuticals Inc)
Disputed Final Adjustment. (i) The No later than forty-five (45) days following delivery of the Purchaser’s written calculation of the Actual Closing Statement Date Working Capital, Closing Date Cash and Closing Date Remaining Indebtedness, Xxxxxxxx shall become notify the Purchaser in writing whether he accepts or disputes the accuracy of the calculation of Actual Closing Date Working Capital, Closing Date Cash and Closing Date Remaining Indebtedness. If Xxxxxxxx accepts the calculation of Actual Closing Date Working Capital, Closing Date Cash and Closing Date Remaining Indebtedness determined pursuant to Section 2.4(b), or if Xxxxxxxx fails within such forty-five (45) day period to notify the Purchaser of any dispute with respect thereto, then the calculation of Actual Closing Date Working Capital, Closing Date Cash and Closing Date Remaining Indebtedness determined pursuant to Section 2.4(b) shall be the “Final Working Capital”, the calculation of Closing Date Cash determined pursuant to Section 2.4(b) shall be the “Final Closing Date Cash”, and the calculation of Closing Date Remaining Indebtedness determined pursuant to Section 2.4(b) shall be the “Final Closing Date Remaining Indebtedness”, which, in each case, shall be deemed final and conclusive and binding upon all Parties in all respects.
(ii) If Xxxxxxxx disputes the Parties on accuracy of the thirtieth (30th) day following delivery thereofcalculation of Actual Closing Date Working Capital, unless Sellers deliver Closing Date Cash or Closing Date Remaining Indebtedness, Xxxxxxxx shall provide written notice to the Purchaser prior no later than forty-five (45) days following the delivery by the Purchaser to such date of its disagreement with preparation or content Xxxxxxxx of the calculation of Actual Closing StatementDate Working Capital, including any disagreement with any balances or other amounts reflected in Closing Date Cash and Closing Date Remaining Indebtedness (the Closing Data Tape (a “Notice of DisagreementDispute Notice”). During such thirty (30)-day period, Sellers and their designated auditor shall be permitted to reasonable access during normal business hours the working papers of Purchaser relating to the Closing Statement and the Closing Data Tape and to Purchaser’s auditor and representatives who prepared the Closing Statement and the Closing Data Tape. A Notice of Disagreement must describe setting forth in reasonable detail those items that Xxxxxxxx disputes, the items contained amounts of any adjustments that are necessary in Xxxxxxxx’x judgment for the computations of the Actual Closing Statement that Sellers dispute Date Working Capital, Closing Date Cash and Closing Date Remaining Indebtedness to conform to the requirements of this Agreement, and the basis for any such disputesXxxxxxxx’x suggested adjustments. During the thirty (30)-day 30) day period following the delivery of a Notice of DisagreementDispute Notice, Sellers the Purchaser and Purchaser Xxxxxxxx shall seek meet and negotiate in good faith with a view to resolve in writing any differences that resolving their disagreements over the disputed items. Until the final determination of Final Working Capital, Closing Date Cash and Closing Date Remaining Indebtedness, Xxxxxxxx and its respective agents shall be provided with such access to the financial books and records of the Companies as they may have with respect reasonably request to enable them to review Purchaser’s calculations of the Actual Closing Date Working Capital, Closing Date Cash and Closing Date Remaining Indebtedness, and to review and address any issues related to the matters specified described in any Dispute Notice. If the Notice of Disagreement Parties resolve their differences over the disputed items in accordance with the foregoing procedure, “Final Working Capital”, “Final Closing Date Cash” and seek “Final Closing Date Remaining Indebtedness” shall be the amounts agreed upon by them. If the Parties fail to agree on a final determination of resolve their differences over the Closing Net Funds Employed, the Foreign Cash Amount and the Prepaids Amount. At the end of disputed items within such thirty (30) day period, if no agreement on then the Closing Net Funds Employed, the Foreign Cash Amount and the Prepaids Amount has been reached, Sellers and Purchaser and/or Xxxxxxxx shall engage request that a nationally recognized mutually agreeable independent accounting firm (the “Accounting FirmArbitrator”) for arbitration of any and all matters that remain in dispute and were properly included in the Notice of Disagreement. The Accounting Firm (who shall be Xxxxx deemed to have been engaged jointly by Xxxxxxxx LLP or, if such firm is unable or unwilling to act, such other nationally recognized independent public accounting firm and the Purchaser) make a binding determination as shall be agreed upon by the Parties in writing. As promptly as practicable after the engagement of the Accounting Firm, Sellers shall submit any unresolved elements set forth in the Notice of Disagreement to the Accounting Firm in writing (with a copy to Purchaser), supported by any documents and arguments upon which they rely. As promptly as practicable thereafter, Purchaser shall submit its response to the Accounting Firm (with a copy to Sellers) supported by any documents and arguments upon which it relies. The Parties shall instruct the Accounting Firm to render its reasoned written decision with respect to each disagreement asserted disputed items in accordance with this Section 3.2(b)(i) as promptly as practicable but in no event later than thirty (30) days after submission of all matters in dispute. 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 enforcedAgreement.
(ii) Notwithstanding any provisions hereof to the contrary, the Accounting Firm shall be deemed to be acting as an expert and not as an arbiter and the proceeding before the Accounting Firm shall be an expert determination under the law governing expert determination. None of Sellers or Purchaser shall have any ex parte communications with the Accounting Firm without the prior consent of Purchaser or Sellers, as the case may be. The Accounting Firm shall review such submissions and base its determination solely on the submissions made by Sellers and Purchaser, the terms of this Agreement and the Accounting Principles. In resolving any disputed item submitted to the Accounting Firm, the Accounting Firm may not assign a value to any item greater than the greatest value claimed for such item by either Purchaser or Sellers or less than the smallest value claimed for such item by either Purchaser or Sellers and such resolution shall be in accordance with the Accounting Principles and otherwise in accordance with this Section 3.2.
(iii) In the event Purchaser and Sellers submit any unresolved objections to the Accounting Firm for resolution as provided in Section 3.2(b)(i), the cost of any dispute resolution (including the fees and expenses of the Accounting Firm and reasonable attorney fees and expenses of the Parties) shall be borne by Purchaser and Sellers in inverse proportion as they may prevail on matters resolved by the Accounting Firm, which proportionate allocations also shall be determined by the Accounting Firm at the time the determination of the Accounting Firm is rendered on the merits of the matters submitted.
(iv) For purposes of complying with this Section 3.2, Purchaser and Sellers shall provide each other and the other’s auditors reasonable access during normal business hours to the personnel, properties, contracts, books and records relating to the Business, the Acquired Assets and the Assumed Liabilities in connection with the preparation of the Closing Statement and the resolution of any disputed amounts under the Closing Statement.
Appears in 1 contract
Samples: Equity Purchase Agreement (Caseys General Stores Inc)
Disputed Final Adjustment. (i) The Closing Statement shall become final and binding upon No later than thirty (30) days following the Parties on the thirtieth (30th) day following delivery thereof, unless Sellers deliver written notice to by Purchaser prior to such date of its disagreement with preparation or content of the Closing Statement, including any disagreement with any balances the Sellers’ Representative shall notify Purchaser in writing whether the Sellers’ Representative (on behalf of all Sellers) accepts or other amounts reflected in disputes the accuracy of the calculations set forth on the Closing Data Tape (a “Notice of Disagreement”)Statement. During such thirty (30)-day period, Sellers and their designated auditor shall be permitted to reasonable access during normal business hours the working papers of Purchaser relating to the Closing Statement and the Closing Data Tape and to Purchaser’s auditor and representatives who prepared the Closing Statement and the Closing Data Tape. A Notice of Disagreement must describe in reasonable detail the items contained in the Closing Statement that Sellers dispute and the basis for any such disputes. During the thirty (30)-day period following the delivery of a Notice of Disagreement, Sellers and Purchaser shall seek in good faith to resolve in writing any differences that they may have with respect to the matters specified in the Notice of Disagreement and seek to agree on a final determination of the Closing Net Funds Employed, the Foreign Cash Amount and the Prepaids Amount. At the end of such thirty (30) day period, if no agreement on the Sellers’ Representative and its agents shall be provided with such access to the financial books and records of the Company, its Subsidiaries and Purchaser as well as any relevant work papers as the Sellers’ Representative and its agents may reasonably request to enable the Sellers’ Representative and its agents to evaluate the calculations of Actual Target Working Capital, Actual Working Capital, Actual Cash, Actual Indebtedness and Actual Company Transaction Expenses prepared by Purchaser. If the Sellers’ Representative accepts the Closing Net Funds EmployedStatement, or if the Foreign Cash Amount and the Prepaids Amount has been reached, Sellers and Sellers’ Representative fails within such thirty (30) day period to notify Purchaser shall engage a nationally recognized independent accounting firm (the “Accounting Firm”) for arbitration of any and all matters that remain in dispute and were properly included in with respect thereto, then the Notice calculation of Disagreement. The Accounting Firm shall be Xxxxx Xxxxxxxx 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 the Parties in writing. As promptly as practicable after the engagement of the Accounting Firm, Sellers shall submit any unresolved elements Actual Target Working Capital set forth in the Notice Closing Statement shall be the “Final Target Working Capital”, the Actual Working Capital set forth in the Closing Statement shall be the “Final Working Capital,” the calculation of Disagreement Actual Cash set forth in the Closing Statement shall be the “Final Cash,” the calculation of Actual Indebtedness set forth in the Closing Statement shall be the “Final Indebtedness” and the calculation of Actual Company Transaction Expenses set forth in the Closing Statement shall be the “Final Company Transaction Expenses,” which, in each case, shall deemed final and conclusive and binding upon all parties in all respects.
(ii) If the Sellers’ Representative disputes the accuracy of any calculations set forth on the Closing Statement, the Sellers’ Representative shall provide written notice to the Accounting Firm in writing (with a copy to Purchaser), supported by any documents and arguments upon which they rely. As promptly as practicable thereafter, Purchaser shall submit its response to the Accounting Firm (with a copy to Sellers) supported by any documents and arguments upon which it relies. The Parties shall instruct the Accounting Firm to render its reasoned written decision with respect to each disagreement asserted in accordance with this Section 3.2(b)(i) as promptly as practicable but in no event later than thirty (30) days after submission following the delivery by Purchaser to the Sellers’ Representative of all matters the Closing Statement (the “Dispute Notice”), setting forth in disputereasonable detail those items that the Sellers’ Representative disputes. Judgment may be entered upon During the thirty (30) day period following delivery of a Dispute Notice, Purchaser and the Sellers’ Representative shall negotiate in good faith with a view to resolving their disagreements over the disputed items. During such thirty (30) day period and until the final determination of the Accounting Firm in any court having jurisdiction over the Party against which such determination is to be enforced.
(ii) Notwithstanding any provisions hereof to the contraryFinal Target Working Capital, the Accounting Firm shall be deemed to be acting as an expert and not as an arbiter and the proceeding before the Accounting Firm shall be an expert determination under the law governing expert determination. None of Sellers or Purchaser shall have any ex parte communications with the Accounting Firm without the prior consent of Purchaser or SellersFinal Working Capital, as the case may be. The Accounting Firm shall review such submissions and base its determination solely on the submissions made by Sellers and PurchaserFinal Cash, the terms of this Agreement and the Accounting Principles. In resolving any disputed item submitted to the Accounting Firm, the Accounting Firm may not assign a value to any item greater than the greatest value claimed for such item by either Purchaser or Sellers or less than the smallest value claimed for such item by either Purchaser or Sellers and such resolution shall be in accordance with the Accounting Principles and otherwise Final Indebtedness and/or Final Company Transaction Expenses in accordance with this Section 3.2.
(iii) In the event Purchaser and Sellers submit any unresolved objections to the Accounting Firm for resolution as provided in Section 3.2(b)(i2.4(c)(ii), the cost of any dispute resolution (including the fees Sellers’ Representative and expenses of the Accounting Firm and reasonable attorney fees and expenses of the Parties) its agents shall be borne by Purchaser and Sellers in inverse proportion as they may prevail on matters resolved by the Accounting Firm, which proportionate allocations also shall be determined by the Accounting Firm at the time the determination of the Accounting Firm is rendered on the merits of the matters submitted.
(iv) For purposes of complying provided with this Section 3.2, Purchaser and Sellers shall provide each other and the other’s auditors reasonable such access during normal business hours to the personnel, properties, contracts, financial books and records relating of the Company, its Subsidiaries and Purchaser as the Sellers’ Representative and its agents may reasonably request to enable the Sellers’ Representative and its agents to address all matters set forth in any Dispute Notice. If the parties resolve their differences over the disputed items in accordance with the foregoing procedure, “Final Target Working Capital,” “Final Working Capital,” “Final Cash,” “Final Indebtedness” and/or “Final Company Transaction Expenses” shall be the amounts agreed upon by them. If the parties fail to resolve their differences over the disputed items within such thirty (30) day period, then Purchaser and the Sellers’ Representative shall forthwith jointly request that the Chicago, Illinois office of Deloitte LLP (the “Accounting Arbitrator”) make a binding determination as to the Business, the Acquired Assets and the Assumed Liabilities disputed items in connection accordance with the preparation of the Closing Statement and the resolution of any disputed amounts under the Closing Statementthis Agreement.
Appears in 1 contract
Disputed Final Adjustment. (i) The Within forty-five (45) days after delivery of the Post-Closing Statement shall become final and binding upon Financial Statement, the Parties on the thirtieth (30th) day following delivery thereof, unless Sellers Stockholder Representative may deliver written notice to Purchaser prior to such date of its disagreement with preparation or content of the Closing Statement, including any disagreement with any balances or other amounts reflected in the Closing Data Tape (a “Notice Protest Notice”) to Buyer of Disagreement”). During such thirty (30)-day period, Sellers and their designated auditor shall be permitted to reasonable access during normal business hours any objections that the working papers of Purchaser relating to the Closing Statement and the Closing Data Tape and to Purchaser’s auditor and representatives who prepared the Closing Statement and the Closing Data Tape. A Notice of Disagreement must describe in reasonable detail the items contained in the Closing Statement that Sellers dispute and the basis for any such disputes. During the thirty (30)-day period following the delivery of a Notice of Disagreement, Sellers and Purchaser shall seek in good faith to resolve in writing any differences that they Stockholder Representative may have with respect to the matters specified accuracy of any individual items in the Post-Closing Financial Statement, setting forth in reasonable detail the basis of such objection(s) together with the amount(s) in dispute. Any amount not disputed in a Protest Notice of Disagreement shall be final, conclusive and seek to agree binding on a final determination the Parties. During such period, upon reasonable request of the Stockholder Representative, Buyer shall reasonably cooperate with the Stockholder Representative in its review of the calculations set forth in the Post-Closing Net Funds EmployedFinancial Statement, including by using commercially reasonable efforts to provide to the Foreign Cash Amount Stockholder Representative and its representatives reasonable access to all books, records and accountants’ working papers (after the Prepaids Amount. At Stockholder Representative has signed and delivered customary agreements required by such accountants) of the end of Company directly relevant to evaluating the calculations set forth in the Post-Closing Financial Statement, subject to applicable legal privileges and confidentiality obligations.
(ii) If the Stockholder Representative does not timely deliver a Protest Notice within such thirty forty-five (3045) day period, if no agreement then the calculation of Actual Cash determined pursuant to Section 1.13(b) shall be the “Final Cash”, the calculation of the Actual Indebtedness determined pursuant to Section 1.13(b) shall be the “Final Indebtedness”, the calculation of the Actual Sellers’ Transaction Expenses determined pursuant to Section 1.13(b) shall be the “Final Sellers’ Transaction Expenses”, and the calculation of Actual Working Capital determined pursuant to Section 1.13(b) shall be the “Final Working Capital”, which, in each case, shall deemed to be final and conclusive and binding on the Closing Net Funds EmployedParties.
(iii) Upon receipt of a Protest Notice, the Foreign Cash Amount Buyer and the Prepaids Amount has been reached, Sellers and Purchaser Stockholder Representative shall engage a nationally recognized independent accounting firm (the “Accounting Firm”) for arbitration of attempt in good faith to resolve any and all matters that remain items in dispute and were properly included in the Notice of DisagreementPost-Closing Financial Statement. The Accounting Firm If Buyer and the Stockholder Representative resolve their differences over the disputed items in accordance with the foregoing procedure, Final Cash, Final Indebtedness, and Final Sellers’ Transaction Expenses (if any) and Final Working Capital shall be Xxxxx Xxxxxxxx LLP or, if such firm is unable or unwilling to act, such other nationally recognized independent public accounting firm as shall be the amounts agreed upon by them. If Buyer and the Parties in writing. As promptly as practicable after the engagement of the Accounting Firm, Sellers shall submit Stockholder Representative are unable to resolve any unresolved elements set forth in the Notice of Disagreement to the Accounting Firm in writing (with a copy to Purchaser), supported by any documents and arguments upon which they rely. As promptly as practicable thereafter, Purchaser shall submit its response to the Accounting Firm (with a copy to Sellers) supported by any documents and arguments upon which it relies. The Parties shall instruct the Accounting Firm to render its reasoned written decision disagreement with respect to each disagreement asserted in accordance with this Section 3.2(b)(i) as promptly as practicable but in no event later than the Post-Closing Financial Statement within thirty (30) days after submission of all matters in dispute. Judgment may be entered upon the determination following Buyer’s receipt of the Accounting Firm Protest Notice, then Buyer and the Stockholder Representative shall forthwith jointly request and submit such dispute(s) to the dispute resolution group of Axxxxxx & Marsal (the “Accountant”) for resolution in any court having jurisdiction over the Party against which such determination is to be enforcedaccordance with this Agreement.
(iiiv) Notwithstanding any provisions hereof The Stockholder Representative and Buyer shall use their respective commercially reasonable efforts to cause the Accountant to resolve all items submitted to the contraryAccountant as soon as practicable, and in any event within thirty (30) days from the date of referral (and only with respect to any unresolved disputed items set forth in the Protest Notice), and the final calculation of Actual Cash, Actual Indebtedness, Actual Sellers’ Transaction Expenses (if any) and Actual Working Capital shall be based solely on the resolution of such disputed items. The Accountant’s determination shall be based solely on this Agreement (including, as applicable, the Accounting Firm Methodology) and written submissions by Buyer and the Stockholder Representative and not by independent review, and which shall only be as to those issues in dispute (it being understood that in making such determination, the Accountant shall be deemed to be acting functioning as an expert and not as an arbiter and arbitrator). The determination of the proceeding before the Accounting Firm Accountant shall be an expert determination under between the law governing expert determinationdeterminations prepared by the Stockholder Representative in the Protest Notice and Buyer in the Post-Closing Financial Statement. None of Sellers or Purchaser shall Except as expressly set forth in this Agreement, neither Buyer nor the Stockholder Representative may have any ex parte communications conversations or meetings with the Accounting Firm Accountant in connection with the subject matter herein without the prior consent of Purchaser the other (which consent shall not be unreasonably withheld or Sellersdelayed). During such thirty (30) day period Buyer and the Stockholder Representative shall make available to the Accountant all relevant financial books and records of the Company and other items reasonably requested by the Accountant, as subject to applicable legal privileges and confidentiality obligations. Neither Buyer nor the case may beStockholder Representative will disclose to the Accountant, and the Accountant will not consider for any purpose, any settlement discussions or settlement offer made by or on behalf of Buyer and the Stockholder Representative, unless otherwise agreed by Buyer and the Stockholder Representative. The Accounting Firm Accountant’s final determination of Actual Cash shall review such submissions and base its be deemed the “Final Cash,” the Accountant’s final determination solely on of Actual Indebtedness shall be deemed the submissions made by Sellers and Purchaser“Final Indebtedness”, the terms Accountant’s final determination of this Agreement Actual Sellers’ Transaction Expenses shall be deemed the “Final Sellers’ Transaction Expenses”, and the Accounting Principles. In resolving any disputed item submitted to the Accounting Firm, the Accounting Firm may not assign a value to any item greater than the greatest value claimed for such item by either Purchaser or Sellers or less than the smallest value claimed for such item by either Purchaser or Sellers and such resolution Accountant’s final determination of Actual Working Capital shall be in accordance with deemed the Accounting Principles and otherwise in accordance with this Section 3.2.
“Final Working Capital”, absent manifest error or fraud. The Party (iiieither Buyer or the Stockholder Representative (on behalf of the Company Holders)) In whose determination of the event Purchaser and Sellers submit any unresolved objections to Closing Cash Consideration was furthest from the Accounting Firm for resolution as provided in Section 3.2(b)(i), final determination of the cost of any dispute resolution (including Closing Cash Consideration shall bear the fees and expenses of the Accounting Firm and reasonable attorney Accountant plus any out-of-pocket expenses (including attorneys’ fees and expenses accountants’ fees) of the Parties) shall be borne by Purchaser and Sellers in inverse proportion as they may prevail on matters resolved Party whose determination of the Closing Cash Consideration was closest to the final determination by the Accounting Firm, which proportionate allocations also shall be determined Accountants. If the determination by the Accounting Firm at the time Accountant is equidistant between the determination of the Accounting Firm is rendered on Parties, the merits fees of the matters submitted.
(iv) For purposes of complying with this Section 3.2, Purchaser and Sellers Accountants shall provide each other be borne equally by Buyer and the other’s auditors reasonable access during normal business hours to Stockholder Representative (on behalf of the personnel, properties, contracts, books Company Holders) and records relating to the Business, the Acquired Assets each of Buyer and the Assumed Liabilities in connection with the preparation Stockholder Representative (on behalf of the Closing Statement Company Holders) shall bear their own out-of-pocket cost and the resolution of any disputed amounts under the Closing Statementexpenses.
Appears in 1 contract
Samples: Merger Agreement (Squarespace, Inc.)
Disputed Final Adjustment. (i) The Closing Statement shall become final and binding upon the Parties on the thirtieth (30th) day following delivery thereof, unless Sellers deliver written notice to Purchaser prior to such date of its disagreement with preparation or content of the Closing Statement, including any disagreement with any balances or other amounts reflected in the Closing Data Tape (a “Notice of Disagreement”). During such No later than thirty (30)-day period, Sellers and their designated auditor shall be permitted to reasonable access during normal business hours the working papers of Purchaser relating to the Closing Statement and the Closing Data Tape and to Purchaser’s auditor and representatives who prepared the Closing Statement and the Closing Data Tape. A Notice of Disagreement must describe in reasonable detail the items contained in the Closing Statement that Sellers dispute and the basis for any such disputes. During the thirty (30)-day period 30) days following the delivery by Parent of a Notice the calculation of DisagreementActual Working Capital and Actual Cash, Sellers and Purchaser Sellers’ Representative shall seek in good faith to resolve notify Parent in writing any differences that they may have with respect to whether it accepts or disputes the matters specified in the Notice of Disagreement and seek to agree on a final determination accuracy of the Closing Net Funds Employed, the Foreign Cash Amount calculation of Actual Working Capital and the Prepaids AmountActual Cash. At the end of During such thirty (30) day period, the Sellers’ Representative and its agents shall be provided with such access (including electronic access, to the extent available) to the financial books and records of the Company and the personnel or representatives of the Company and Parent, including but not limited to the individuals responsible for preparing the calculation of the Actual Working Capital and Actual Cash, as it may reasonably request to enable it to evaluate the calculations of Actual Working Capital and Actual Cash prepared by Parent. If the Sellers’ Representative accepts the calculation of Actual Working Capital and Actual Cash determined pursuant to Section 2.11(b), or if no agreement on the Closing Net Funds EmployedSellers’ Representative fails within such thirty (30) day period to notify Parent of any dispute with respect thereto, then the calculation of Actual Working Capital determined pursuant to Section 2.11(b), shall be the “Final Working Capital” and the calculation of Actual Cash determined pursuant to Section 2.11(b), shall be the “Final Cash” which, in each case, shall deemed final and conclusive and binding upon all parties in all respects.
(ii) If the Sellers’ Representative disputes the accuracy of the calculation of Actual Working Capital or Actual Cash, the Foreign Cash Amount and the Prepaids Amount has been reached, Sellers and Purchaser Sellers’ Representative shall engage a nationally recognized independent accounting firm (the “Accounting Firm”) for arbitration of any and all matters that remain in dispute and were properly included in the Notice of Disagreement. The Accounting Firm shall be Xxxxx Xxxxxxxx LLP or, if such firm is unable or unwilling provide written notice to act, such other nationally recognized independent public accounting firm as shall be agreed upon by the Parties in writing. As promptly as practicable after the engagement of the Accounting Firm, Sellers shall submit any unresolved elements set forth in the Notice of Disagreement to the Accounting Firm in writing (with a copy to Purchaser), supported by any documents and arguments upon which they rely. As promptly as practicable thereafter, Purchaser shall submit its response to the Accounting Firm (with a copy to Sellers) supported by any documents and arguments upon which it relies. The Parties shall instruct the Accounting Firm to render its reasoned written decision with respect to each disagreement asserted in accordance with this Section 3.2(b)(i) as promptly as practicable but in Parent no event later than thirty (30) days after submission following the delivery by Parent to the Sellers’ Representative of the calculation of Actual Working Capital and Actual Cash (the “Dispute Notice”), setting forth in reasonable detail those items that the Sellers’ Representative disputes. During the thirty (30) day period following delivery of a Dispute Notice, Parent and the Sellers’ Representative shall meet and negotiate in good faith with a view to resolving their disagreements over the disputed items. During such thirty (30) day period and until the final determination of Final Working Capital and/or Final Cash in accordance with this Section 2.11(c)(ii), the Sellers’ Representative and its agents shall be provided with such access to the financial books and records of the Company, as it may reasonably request to enable it to address all matters in dispute. Judgment may be entered upon the determination of the Accounting Firm set forth in any court having jurisdiction Dispute Notice. If the parties resolve their differences over the Party against which disputed items in accordance with the foregoing procedure, “Final Working Capital” and/or “Final Cash” shall be the amounts agreed upon by them. If the parties fail to resolve their differences over the disputed items within such thirty (30) day period, then Parent and the Sellers’ Representative shall forthwith jointly request that Deloitte Services, L.P. (the “Accounting Arbitrator”) make a binding determination is as to be enforcedthe disputed items in accordance with this Agreement.
(iiiii) Notwithstanding any provisions hereof The Accounting Arbitrator will under the terms of its engagement have no more than thirty (30) days from the date of referral and no more than ten (10) Business Days from the final submission of information and testimony by Parent and the Sellers’ Representative within which to render its written decision with respect to the contrary, disputed items (and only with respect to any unresolved disputed items set forth in the Accounting Firm Dispute Notice) and the final calculation of Actual Working Capital and/or Actual Cash shall be deemed to be acting as an expert and not as an arbiter and based solely on the proceeding before the Accounting Firm shall be an expert determination under the law governing expert determination. None resolution of Sellers or Purchaser shall have any ex parte communications with the Accounting Firm without the prior consent of Purchaser or Sellers, as the case may besuch disputed items. The Accounting Firm Arbitrator shall review such submissions and base its determination solely on the submissions made by Sellers and Purchaser, the terms of this Agreement and the Accounting Principlessuch submissions. In resolving any disputed item submitted to the Accounting Firmitem, the Accounting Firm Arbitrator may not assign a value to any item greater than the greatest value claimed for such item claimed by either Purchaser or Sellers party or less than the smallest least value claimed for such item claimed by either Purchaser or Sellers and such resolution party. The decision of the Accounting Arbitrator shall be in accordance with deemed final and binding upon the parties and enforceable by any court of competent jurisdiction and the Accounting Principles and otherwise in accordance with this Section 3.2.
(iii) In Arbitrator’s final calculation of Actual Working Capital shall be deemed the event Purchaser and Sellers submit any unresolved objections to “Final Working Capital” and/or the Accounting Firm for resolution as provided in Section 3.2(b)(i), Arbitrator’s final calculation of Actual Cash shall be deemed the cost of any dispute resolution (including the “Final Cash.” The fees and expenses of the Accounting Firm Arbitrator shall be allocated to be paid by Parent, on the one hand, and reasonable attorney fees and expenses the Sellers’ Representative (solely on behalf of the Parties) shall be borne Sellers and in its capacity as the Sellers’ Representative, not in its individual capacity), on the other, based upon the percentage that the portion of the contested amount not awarded to each party bears to the amount actually contested by Purchaser and Sellers in inverse proportion such party, as they may prevail on matters resolved by the Accounting Firm, which proportionate allocations also shall be determined by the Accounting Firm at the time the determination of the Accounting Firm is rendered on the merits of the matters submittedArbitrator.
(iv) For purposes of complying with this Section 3.2, Purchaser and Sellers shall provide each other and the other’s auditors reasonable access during normal business hours to the personnel, properties, contracts, books and records relating to the Business, the Acquired Assets and the Assumed Liabilities in connection with the preparation of the Closing Statement and the resolution of any disputed amounts under the Closing Statement.
Appears in 1 contract
Samples: Merger Agreement (Rimage Corp)
Disputed Final Adjustment. (i) The Closing Statement shall become final and binding upon Within 45 days following the Parties on delivery by the thirtieth (30th) day following delivery thereof, unless Sellers deliver written notice to Purchaser prior to such date of its disagreement with preparation or content Buyer of the Closing StatementSchedule, including any disagreement with any balances or other amounts reflected the Seller may notify the Buyer in writing (a “Dispute Notice”) whether it disputes the accuracy of the Closing Schedule and the calculations set forth thereon. Any Dispute Notice shall set forth in reasonable detail those items in the Closing Data Tape Schedule that the Seller disputes and the Seller’s proposed calculation of the disputed items in the Closing Schedule. If the Seller does not deliver a Dispute Notice within such 45-day period, then the calculations of Closing Cash, Closing Working Capital and Closing Indebtedness contained in the Closing Schedule shall be deemed to be accepted by the Seller as final and shall be deemed conclusive and binding on the Buyer and the Seller; provided, however, that, in the event that the Seller or its representatives reasonably request prior to the end of such 45-day period that the Buyer or the Company provide or make available to the Seller or its representatives any papers or documents reasonably related to the Closing Schedule and the calculations set forth thereon within three Business Days after the request therefor, such 45-day period shall be extended by one day for each additional day required for the Buyer or the Company to fully respond to such request; provided further that the Seller shall not be permitted to make more than three such requests.
(a “ii) If the Buyer disputes all or any portion of the Seller’s proposed modification of the Closing Schedule or the calculations set forth thereon, then the Buyer shall notify the Seller in writing of such dispute setting forth in reasonable detail those items that the Buyer disputes and Buyer’s proposed calculation of the disputed items in Seller’s proposed modification of the Closing Schedule or the calculations set forth thereon, and the Seller and the Buyer shall negotiate in good faith to reach an agreement during the 30-day period immediately following the Buyer’s receipt of the Dispute Notice (and all such discussions related thereto shall, unless otherwise agreed by the Buyer and the Seller, be governed by Rule 408 of Disagreement”the Federal Rules of Evidence (and any applicable similar state rule)). During such thirty (30)-day negotiation period, Sellers the Buyer and the Seller and their designated auditor respective representatives shall have reasonable access to the books and records of the other Party relating to the Estimated Closing Cash and Estimated Closing Working Capital and the working papers of the other Party’s accountants prepared in connection with the Closing Schedule and the Dispute Notice; provided, that any such access shall be permitted to reasonable access conducted during normal business hours under the working papers reasonable supervision of Purchaser the other Party’s representatives; and provided, further, that the Seller shall treat all such information as confidential in accordance with Section 4.05 and hereby waives any right to use such information for any purpose other than in connection with the Transactions or any dispute relating to thereto.
(iii) If, within the Closing Statement 30-day negotiation period described in Section 1.04(c)(ii), the Buyer and the Closing Data Tape and Seller are unable to Purchaser’s auditor and representatives who prepared the Closing Statement and the Closing Data Tape. A Notice of Disagreement must describe in reasonable detail the items contained in the Closing Statement that Sellers dispute and the basis for any such disputes. During the thirty (30)-day period following the delivery of a Notice of Disagreement, Sellers and Purchaser shall seek in good faith to resolve in writing any differences that they may have with respect to the matters specified in the Notice of Disagreement and seek to agree on a final determination of the Closing Net Funds Employed, the Foreign Cash Amount and the Prepaids Amount. At the end of such thirty (30) day period, if no reach an agreement on the Closing Net Funds Employed, the Foreign Cash Amount Schedule and the Prepaids Amount has been reachedcalculations set forth thereon, Sellers and Purchaser they shall engage promptly thereafter cause a nationally recognized independent accounting firm reasonably satisfactory to the Buyer and the Seller (the “Accounting FirmArbitrator”) to review the disputed items or amounts for arbitration purposes of any calculating Final Closing Cash, Final Closing Working Capital and all matters that remain in dispute and were properly included in the Notice of DisagreementFinal Indebtedness. The Accounting Firm shall be Xxxxx Xxxxxxxx LLP orArbitrator shall, if such firm is unable or unwilling to actunder the terms of its engagement, such other nationally recognized independent public accounting firm as shall be agreed upon have no more than 30 days from the date of referral and no more than 10 Business Days from the final submission of information by the Parties in writing. As promptly as practicable after Buyer and the engagement of the Accounting Firm, Sellers shall submit any unresolved elements set forth in the Notice of Disagreement to the Accounting Firm in writing (with a copy to Purchaser), supported by any documents and arguments upon Seller within which they rely. As promptly as practicable thereafter, Purchaser shall submit its response to the Accounting Firm (with a copy to Sellers) supported by any documents and arguments upon which it relies. The Parties shall instruct the Accounting Firm to render its reasoned written decision with respect to each disagreement asserted the disputed items (and only with respect to any unresolved disputed items set forth in accordance with this Section 3.2(b)(i) the Dispute Notice), and the calculation of Final Closing Cash, Final Closing Working Capital and Final Indebtedness, as promptly as practicable but in no event later than thirty (30) days after submission applicable, shall be based solely on the resolution of all matters in dispute. Judgment may be entered upon the determination of such disputed items by the Accounting Firm in any court having jurisdiction over the Party against which such determination is to be enforced.
(ii) Notwithstanding any provisions hereof to the contrary, the Accounting Firm shall be deemed to be acting as an expert and not as an arbiter and the proceeding before the Accounting Firm shall be an expert determination under the law governing expert determination. None of Sellers or Purchaser shall have any ex parte communications with the Accounting Firm without the prior consent of Purchaser or Sellers, as the case may beArbitrator. The Accounting Firm Arbitrator shall review such submissions and base its determination solely on the such submissions made by Sellers and Purchaser, upon the terms and conditions of this Agreement and the Accounting Principles. In resolving any disputed item submitted to the Accounting Firm, the Accounting Firm may not assign a value to any item greater than the greatest value claimed for such item by either Purchaser or Sellers or less than the smallest value claimed for such item by either Purchaser or Sellers and such resolution shall be in accordance with the Accounting Principles and otherwise in accordance with this Section 3.2.
(iii) In the event Purchaser and Sellers submit any unresolved objections to the Accounting Firm for resolution as provided in Section 3.2(b)(i), the cost of any dispute resolution (including the fees and expenses of the Accounting Firm and reasonable attorney fees and expenses of the Parties) shall be borne by Purchaser and Sellers in inverse proportion as they may prevail on matters resolved by the Accounting Firm, which proportionate allocations also shall be determined by the Accounting Firm at the time the determination of the Accounting Firm is rendered on the merits of the matters submitted.
(iv) For purposes of complying with this Section 3.2, Purchaser and Sellers shall provide each other and the other’s auditors reasonable access during normal business hours to the personnel, properties, contracts, books and records relating to the Business, the Acquired Assets and the Assumed Liabilities in connection with the preparation of the Closing Statement and the resolution of any disputed amounts under the Closing Statement.the
Appears in 1 contract
Disputed Final Adjustment. (ia) The Final Closing Statement shall become final and binding upon the Parties parties hereto on the thirtieth twentieth (30th20th) day following delivery thereof, unless Sellers deliver the Company Members Representative delivers written notice to Purchaser Parent prior to such date of its disagreement with preparation or content of the Final Closing Statement, including any disagreement with any balances or other amounts reflected in the Closing Data Tape Statement (a “Notice of Disagreement”). During such thirty twenty (30)-day 20)-day period, Sellers the Company Members Representative and their designated auditor shall be permitted to reasonable access during normal business hours the working papers accounting records of Purchaser Parent relating to the Final Closing Statement and the Closing Data Tape and to Purchaser’s auditor and representatives who prepared the Closing Statement and the Closing Data TapeStatement. A Notice of Disagreement must describe in reasonable detail the items contained in the Final Closing Statement that Sellers dispute the Company Members Representative disputes and the basis for any such disputes. During the thirty twenty (30)-day 20)-day period following the delivery of a Notice of Disagreement, Sellers the Company Members Representative and Purchaser Parent shall seek in good faith to resolve in writing any differences that they may have with respect to the matters specified in the Notice of Disagreement and seek to agree on a final determination of the Closing Net Funds Employed, the Foreign Cash Amount and the Prepaids AmountConsideration. At the end of such thirty twenty (30) day 20)-day period, if no agreement on the Closing Net Funds EmployedCash Consideration, the Foreign Cash Amount Company Members Representative and the Prepaids Amount has been reached, Sellers and Purchaser Parent shall engage a nationally recognized independent accounting firm (the “Accounting Firm”) for arbitration of any and all matters that remain in dispute and were properly included in the Notice of Disagreement. The Accounting Firm shall be Xxxxx Gxxxx Xxxxxxxx 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 the Parties parties in writing. As promptly as practicable after the engagement of the Accounting Firm, Sellers the Company Members Representative shall submit any unresolved elements set forth in the Notice of Disagreement to the Accounting Firm in writing (with a copy to PurchaserParent), supported by any documents and arguments upon which they rely. As promptly as practicable thereafter, Purchaser Parent shall submit its response to the Accounting Firm (with a copy to Sellersthe Company Members Representative) supported by any documents and arguments upon which it relies. The Parties parties shall instruct the Accounting Firm to render its reasoned written decision with respect to each disagreement asserted in accordance with this Section 3.2(b)(i1.09(a) as promptly as practicable but in no event later than thirty (30) days after submission of all matters in dispute. Judgment may be entered upon the determination of the Accounting Firm in any court having jurisdiction over the Party party against which such determination is to be enforced.
(iib) Notwithstanding any provisions hereof to the contrary, the Accounting Firm shall be deemed to be acting as an expert and not as an arbiter and the proceeding before the Accounting Firm shall be an expert determination under the law Law governing expert determination. None of Sellers the Company Members Representative or Purchaser Parent shall have any ex parte communications with the Accounting Firm without the prior consent of Purchaser Parent or Sellersthe Company Members Representative, as the case may be. The Accounting Firm shall review such submissions and base its determination solely on the submissions made by Sellers the Company Members Representative and PurchaserParent, the terms of this Agreement and the Accounting PrinciplesGAAP. In resolving any disputed item submitted to the Accounting Firm, the Accounting Firm may not assign a value to any item greater than the greatest value claimed for such item by either Purchaser Parent or Sellers the Company Members Representative in the Final Closing Statement or Notice of Disagreement, as applicable, or less than the smallest value claimed for such item by either Purchaser Parent or Sellers the Company Members Representative in the Final Closing Statement or Notice of Disagreement, as applicable, and such resolution shall be in accordance with the Accounting Principles GAAP and otherwise in accordance with this Section 3.21.09(b).
(iiic) In the event Purchaser Parent and Sellers the Company Members Representative submit any unresolved objections to the Accounting Firm for resolution as provided in Section 3.2(b)(i1.09(a), the cost of any dispute resolution (including the fees and expenses of the Accounting Firm and reasonable attorney attorneys’ fees and expenses of the Partiesparties) shall be borne by Purchaser Parent and Sellers the Company Members in inverse proportion as they may prevail on matters resolved by the Accounting Firm, which proportionate allocations also shall be determined by the Accounting Firm at the time the determination of the Accounting Firm is rendered on the merits of the matters submitted.
(ivd) For purposes of complying with this Section 3.21.09, Purchaser Parent and Sellers the Company Members Representative shall provide each other and the other’s auditors professional advisors reasonable access during normal business hours to the personnel, properties, contracts, books and records relating to the Business, business of the Acquired Assets and the Assumed Liabilities Surviving Corporation in connection with the preparation of the Final Closing Statement and the resolution of any disputed amounts under the Final Closing Statement.
Appears in 1 contract
Disputed Final Adjustment. (i) The Closing Statement shall become final and binding upon the Parties on the thirtieth No later than five (30th5) day following delivery thereof, unless Sellers deliver written notice to Purchaser prior to such date of its disagreement with preparation or content of the Closing Statement, including any disagreement with any balances or other amounts reflected in the Closing Data Tape (a “Notice of Disagreement”). During such thirty (30)-day period, Sellers and their designated auditor shall be permitted to reasonable access during normal business hours the working papers of Purchaser relating to the Closing Statement and the Closing Data Tape and to Purchaser’s auditor and representatives who prepared the Closing Statement and the Closing Data Tape. A Notice of Disagreement must describe in reasonable detail the items contained in the Closing Statement that Sellers dispute and the basis for any such disputes. During the thirty (30)-day period Business Days following the delivery of a Notice the calculation of DisagreementActual Line-Fill Amount and the Actual In-Process Amount, Sellers each of Sunoco and Purchaser NewCo shall seek in good faith to resolve notify the other in writing whether such Party accepts or disputes the accuracy of the calculation of the Actual Line-Fill Amount or the Actual In-Process Amount (or both). If Sunoco and NewCo each accept the calculation of the Actual Line-Fill Amount and/or the Actual In-Process Amount determined pursuant to Section 2.9(b), or if Sunoco and NewCo both fail within such five (5) Business Day period to notify the other of any differences dispute with respect thereto, then the calculation of Line-Fill Amount and/or the Actual In-Process Amount determined pursuant to Section 2.9(b), shall be the “Final Line-Fill Amount” and/or the “Final In-Process Amount,” respectively, which, shall be deemed final and conclusive and binding upon all Parties in all respects.
(ii) If Sunoco or NewCo disputes the accuracy of the calculation of Actual Line-Fill Amount or the Actual In-Process Amount pursuant to Section 2.9(c)(i), such Party shall provide written notice to the other Parties hereto no later than five (5) Business Days following the delivery by the Accessor to NewCo and Sunoco of the calculation of the Actual Line-Fill Amount and/or the Actual In-Process Amount (the “Dispute Notice”), setting forth in reasonable detail those items that they may have such Party disputes. In the event there is a Dispute ** Certain information in this document has been omitted and filed separately with the Securities and Exchange Commission. Confidential treatment has been requested with respect to the matters specified in omitted portions. Notice, NewCo and Sunoco shall forthwith promptly jointly request that the Notice of Disagreement and seek to agree on Accessor make a final binding determination of the Closing Net Funds Employed, the Foreign Cash Amount and the Prepaids Amount. At the end of such thirty (30) day period, if no agreement on the Closing Net Funds Employed, the Foreign Cash Amount and the Prepaids Amount has been reached, Sellers and Purchaser shall engage a nationally recognized independent accounting firm (the “Accounting Firm”) for arbitration of any and all matters that remain in dispute and were properly included in the Notice of Disagreement. The Accounting Firm shall be Xxxxx Xxxxxxxx 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 the Parties in writing. As promptly as practicable after the engagement of the Accounting Firm, Sellers shall submit any unresolved elements set forth in the Notice of Disagreement to the Accounting Firm disputed items in writing accordance with this Agreement.
(with a copy to Purchaser), supported by any documents and arguments upon iii) The Accessor will under the terms of its engagement have no more than ten (10) Business Days from the date of referral within which they rely. As promptly as practicable thereafter, Purchaser shall submit its response to the Accounting Firm (with a copy to Sellers) supported by any documents and arguments upon which it relies. The Parties shall instruct the Accounting Firm to render its reasoned written decision with respect to each disagreement asserted the disputed items (and only with respect to any unresolved disputed items set forth in accordance with this Section 3.2(b)(ithe Dispute Notice) as promptly as practicable but in no event later than thirty (30) days after submission and the calculation of all matters in dispute. Judgment may be entered upon Final Line-Fill Amount and the determination of the Accounting Firm in any court having jurisdiction over the Party against which such determination is to be enforced.
(ii) Notwithstanding any provisions hereof to the contrary, the Accounting Firm Final In-Process Amount shall be deemed to be acting as an expert and not as an arbiter and based solely on the proceeding before resolution of such disputed items by the Accounting Firm shall be an expert determination under the law governing expert determination. None of Sellers or Purchaser shall have any ex parte communications with the Accounting Firm without the prior consent of Purchaser or Sellers, as the case may beAccessor. The Accounting Firm Accessor shall review such submissions and base its determination solely on the submissions made by Sellers and Purchaser, the terms of this Agreement and the Accounting Principlessuch submissions. In resolving any disputed item submitted to the Accounting Firmitem, the Accounting Firm Accessor may not assign a value to any item greater than the greatest value claimed for such item claimed by either Purchaser or Sellers Party or less than the smallest least value claimed for such item claimed by either Purchaser or Sellers and such resolution Party. The decision of the Accessor shall be in accordance with deemed final and binding upon the Accounting Principles parties and otherwise in accordance with this Section 3.2enforceable by any court of competent jurisdiction and the Accessor’s calculation of Final Line-Fill Amount and the Final In-Process Amount shall be deemed the “Final Line-Fill Amount” and/or “Final In-Process Amount.
(iii) In the event Purchaser and Sellers submit any unresolved objections to the Accounting Firm for resolution as provided in Section 3.2(b)(i), the cost of any dispute resolution (including the ” The fees and expenses of the Accounting Firm and reasonable attorney fees and expenses of the Parties) Accessor shall be borne allocated to be paid by Purchaser and Sellers in inverse proportion as they may prevail on matters resolved by the Accounting Firm, which proportionate allocations also shall be determined by the Accounting Firm at the time the determination of the Accounting Firm is rendered on the merits of the matters submittedNewCo.
(iv) For purposes of complying with this Section 3.2, Purchaser and Sellers shall provide each other and the other’s auditors reasonable access during normal business hours to the personnel, properties, contracts, books and records relating to the Business, the Acquired Assets and the Assumed Liabilities in connection with the preparation of the Closing Statement and the resolution of any disputed amounts under the Closing Statement.
Appears in 1 contract
Samples: Refining Contribution Agreement (Philadelphia Energy Solutions Inc.)
Disputed Final Adjustment. (i) The Closing Statement shall become final and binding upon the Parties on the thirtieth (30th) day following delivery thereof, unless Sellers deliver written notice to Purchaser prior to such date of its disagreement with preparation or content of the Closing Statement, including any disagreement with any balances or other amounts reflected in the Closing Data Tape (a “Notice of Disagreement”). During such No later than thirty (30)-day period, Sellers and their designated auditor shall be permitted to reasonable access during normal business hours the working papers of Purchaser relating to the Closing Statement and the Closing Data Tape and to Purchaser’s auditor and representatives who prepared the Closing Statement and the Closing Data Tape. A Notice of Disagreement must describe in reasonable detail the items contained in the Closing Statement that Sellers dispute and the basis for any such disputes. During the thirty (30)-day period 30) days following the delivery by Purchaser of a Notice the calculation of DisagreementActual Indebtedness and Actual Transaction Expenses, Sellers and the Sellers’ Representative shall notify Purchaser shall seek in good faith to resolve in writing any differences that they may have with respect to whether it accepts or disputes the matters specified in the Notice of Disagreement and seek to agree on a final determination accuracy of the Closing Net Funds Employed, the Foreign Cash Amount calculation of Actual Indebtedness and the Prepaids AmountActual Transaction Expenses. At the end of During such thirty (30) day period, the Sellers’ Representative and its agents shall be provided with such access to the financial books and records of Purchaser and the Company Group as well as any relevant work papers (provided that the accountants of the Purchaser or Company shall not be obliged to make any work papers available to the Sellers’ Representative except in accordance with customary disclosure procedures and then only after such Person has signed a customary agreement relating to such access to work papers in form and substance reasonably acceptable to such accountants) as it may reasonably request to enable it to evaluate the calculations of Actual Indebtedness and Actual Transaction Expenses prepared by Purchaser. If the Sellers’ Representative accepts the calculation of Actual Indebtedness and Actual Transaction Expenses determined pursuant to Section 2.6(b), or if no agreement on the Closing Net Funds EmployedSellers’ Representative fails within such thirty (30) day period to notify Purchaser of any dispute with respect thereto, then the calculation of Actual Indebtedness determined pursuant to Section 2.6(b) shall be the “Final Indebtedness,” and the calculation of Actual Transaction Expenses determined pursuant to Section 2.6(b) shall be the “Final Transaction Expenses,” which, in each case, shall be deemed final and conclusive and binding upon all parties in all respects.
(ii) If the Sellers’ Representative disputes the accuracy of the calculation of Actual Indebtedness or Actual Transaction Expenses, the Foreign Cash Amount Sellers’ Representative shall provide written notice to Purchaser no later than thirty (30) days following the delivery by Purchaser to the Sellers’ Representative of the calculation of Actual Indebtedness and the Prepaids Amount has been reached, Sellers and Purchaser shall engage a nationally recognized independent accounting firm Actual Transaction Expenses (the “Accounting FirmDispute Notice”), setting forth in reasonable detail those items that the Sellers’ Representative disputes. Any amounts set forth in the Closing Statement not raised in a Dispute Notice received by Purchaser prior to the expiration of such 30-day period shall be deemed to have been accepted by the Sellers’ Representative and shall become final and binding upon the parties in accordance with this Section 2.6. During the thirty (30) for arbitration day period following delivery of any the Dispute Notice, Purchaser and the Sellers’ Representative shall negotiate in good faith with a view to resolving their disagreements over the disputed items. During such thirty (30) day period and until the final determination of Actual Indebtedness and/or Actual Transaction Expenses in accordance with this Section 2.6(c)(ii) or Section 2.6(c)(iii), as the case may be (as so determined, or as determined pursuant to Section 2.6(c)(i) above, “Final Indebtedness,” and “Final Transaction Expenses,” respectively), the Sellers’ Representative and its agents shall be provided with such access to the financial books and records of the Company Group and Purchaser as it may reasonably request to enable it to address all matters that remain set forth in dispute any Dispute Notice and were properly included in the Notice of Disagreement. The Accounting Firm Purchaser and its agents shall be Xxxxx Xxxxxxxx LLP orprovided with such access to the financial books and records of Outdoors LLC as it may reasonably request to enable it to address all matters set forth in any Dispute Notice. If the parties resolve their differences over the disputed items in accordance with the foregoing procedure, if Final Indebtedness and/or Final Transaction Expenses shall be the amounts agreed upon by them. If the parties fail to resolve their differences over the disputed items within such firm is unable or unwilling to actthirty (30) day period, such other then Purchaser and the Sellers’ Representative shall forthwith jointly request that a nationally recognized independent public accounting firm as shall be mutually agreed upon by Purchaser and the Parties in writing. As promptly as practicable after Sellers’ Representative (the engagement of the “Independent Accounting Firm”), Sellers shall submit any unresolved elements set forth in the Notice of Disagreement acting as an expert not an arbitrator, make a binding determination as to the Accounting Firm in writing (with a copy to Purchaser), supported by any documents and arguments upon which they rely. As promptly as practicable thereafter, Purchaser shall submit its response to the Accounting Firm (with a copy to Sellers) supported by any documents and arguments upon which it relies. The Parties shall instruct the Accounting Firm to render its reasoned written decision with respect to each disagreement asserted disputed items in accordance with this Section 3.2(b)(iAgreement.
(iii) as promptly as practicable but in The Independent Accounting Firm will under the terms of its engagement have no event later more than thirty (30) days after from the date of referral and no more than ten (10) Business Days from the final submission of all matters in dispute. Judgment may be entered upon information by Purchaser and the determination of the Accounting Firm in any court having jurisdiction over the Party against Sellers’ Representative within which such determination is to be enforced.
(ii) Notwithstanding any provisions hereof render its written decision with respect to the contrary, disputed items (and only with respect to any unresolved disputed items set forth in the Accounting Firm Dispute Notice) and the final calculation of Actual Indebtedness and/or Actual Transaction Expenses shall be deemed to be acting as an expert and not as an arbiter and based solely on the proceeding before the Accounting Firm shall be an expert determination under the law governing expert determination. None resolution of Sellers or Purchaser shall have any ex parte communications with the Accounting Firm without the prior consent of Purchaser or Sellers, as the case may besuch disputed items. The Independent Accounting Firm shall review such submissions and base its determination solely on the submissions made by Sellers and Purchaser, the terms of this Agreement and the Accounting Principlessuch submissions. In resolving any disputed item submitted to the Accounting Firmitem, the Independent Accounting Firm may not assign a value to any item greater than the greatest value claimed for such item by either Purchaser or Sellers maximum value, or less than the smallest value claimed minimum value, for such item claimed by either the Sellers’ Representative in the Dispute Notice or by Purchaser or Sellers and such resolution in the Closing Statement. The decision of the Independent Accounting Firm shall be deemed final and binding upon the parties (in accordance with the absence of manifest error or fraud) and enforceable by any court of competent jurisdiction and the Independent Accounting Principles and otherwise in accordance with this Section 3.2Firm’s final calculation of Actual Indebtedness shall be deemed the “Final Indebtedness,” and/or the Independent Accounting Firm’s final calculation of Actual Transaction Expenses shall be deemed the “Final Transaction Expenses.
(iii) In the event Purchaser and Sellers submit any unresolved objections to the Accounting Firm for resolution as provided in Section 3.2(b)(i), the cost of any dispute resolution (including the ” The fees and expenses of the Independent Accounting Firm and reasonable attorney fees and expenses shall be paid 50% by the Sellers’ Representative (on behalf of the PartiesSellers) shall be borne and 50% by Purchaser and Sellers in inverse proportion as they may prevail on matters resolved by the Accounting Firm, which proportionate allocations also shall be determined by the Accounting Firm at the time the determination of the Accounting Firm is rendered on the merits of the matters submittedPurchaser.
(iv) For purposes of complying with this Section 3.2, Purchaser and Sellers shall provide each other and the other’s auditors reasonable access during normal business hours to the personnel, properties, contracts, books and records relating to the Business, the Acquired Assets and the Assumed Liabilities in connection with the preparation of the Closing Statement and the resolution of any disputed amounts under the Closing Statement.
Appears in 1 contract
Samples: Stock Purchase and Merger Agreement (Global Payments Inc)
Disputed Final Adjustment. (i) The Closing Statement shall become final and binding upon the Parties on the thirtieth No later than five (30th5) day following delivery thereof, unless Sellers deliver written notice to Purchaser prior to such date of its disagreement with preparation or content of the Closing Statement, including any disagreement with any balances or other amounts reflected in the Closing Data Tape (a “Notice of Disagreement”). During such thirty (30)-day period, Sellers and their designated auditor shall be permitted to reasonable access during normal business hours the working papers of Purchaser relating to the Closing Statement and the Closing Data Tape and to Purchaser’s auditor and representatives who prepared the Closing Statement and the Closing Data Tape. A Notice of Disagreement must describe in reasonable detail the items contained in the Closing Statement that Sellers dispute and the basis for any such disputes. During the thirty (30)-day period Business Days following the delivery of a Notice the calculation of Disagreement, Sellers and Purchaser shall seek in good faith to resolve in writing any differences that they may have with respect to the matters specified in the Notice of Disagreement and seek to agree on a final determination of the Closing Net Funds Employed, the Foreign Cash Actual Line-Fill Amount and the Prepaids Actual In-Process Amount, each of Sunoco and NewCo shall notify the other in writing whether such Party accepts or disputes the accuracy of the calculation of the Actual Line-Fill Amount or the Actual In-Process Amount (or both). At If Sunoco and NewCo each accept the end calculation of the Actual Line-Fill Amount and/or the Actual In-Process Amount determined pursuant to Section 2.9(b), or if Sunoco and NewCo both fail within such thirty five (305) day periodBusiness Day period to notify the other of any dispute with respect thereto, if then the calculation of Line-Fill Amount and/or the Actual In-Process Amount determined pursuant to Section 2.9(b), shall be the “Final Line-Fill Amount” and/or the “Final In-Process Amount,” respectively, which, shall be deemed final and conclusive and binding upon all Parties in all respects.
(ii) If Sunoco or NewCo disputes the accuracy of the calculation of Actual Line-Fill Amount or the Actual In-Process Amount pursuant to Section 2.9(c)(i), such Party shall provide written notice to the other Parties hereto no agreement on later than five (5) Business Days following the Closing Net Funds Employed, delivery by the Foreign Cash Accessor to NewCo and Sunoco of the calculation of the Actual Line-Fill Amount and and/or the Prepaids Actual In-Process Amount has been reached, Sellers and Purchaser shall engage a nationally recognized independent accounting firm (the “Accounting FirmDispute Notice”) for arbitration of any and all matters that remain in dispute and were properly included in the Notice of Disagreement. The Accounting Firm shall be Xxxxx Xxxxxxxx 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 the Parties in writing. As promptly as practicable after the engagement of the Accounting Firm, Sellers shall submit any unresolved elements set setting forth in reasonable detail those items that such Party disputes. In the Notice of Disagreement event there is a Dispute Notice, NewCo and Sunoco shall forthwith promptly jointly request that the Accessor make a binding determination as to the Accounting Firm disputed items in writing accordance with this Agreement.
(with a copy to Purchaser), supported by any documents and arguments upon iii) The Accessor will under the terms of its engagement have no more than ten (10) Business Days from the date of referral within which they rely. As promptly as practicable thereafter, Purchaser shall submit its response to the Accounting Firm (with a copy to Sellers) supported by any documents and arguments upon which it relies. The Parties shall instruct the Accounting Firm to render its reasoned written decision with respect to each disagreement asserted the disputed items (and only with respect to any unresolved disputed items set forth in accordance with this Section 3.2(b)(ithe Dispute Notice) as promptly as practicable but in no event later than thirty (30) days after submission and the calculation of all matters in dispute. Judgment may be entered upon Final Line-Fill Amount and the determination of the Accounting Firm in any court having jurisdiction over the Party against which such determination is to be enforced.
(ii) Notwithstanding any provisions hereof to the contrary, the Accounting Firm Final In-Process Amount shall be deemed to be acting as an expert and not as an arbiter and based solely on the proceeding before resolution of such disputed items by the Accounting Firm shall be an expert determination under the law governing expert determination. None of Sellers or Purchaser shall have any ex parte communications with the Accounting Firm without the prior consent of Purchaser or Sellers, as the case may beAccessor. The Accounting Firm Accessor shall review such submissions and base its determination solely on the submissions made by Sellers and Purchaser, the terms of this Agreement and the Accounting Principlessuch submissions. In resolving any disputed item submitted to the Accounting Firmitem, the Accounting Firm Accessor may not assign a value to any item greater than the greatest value claimed for such item claimed by either Purchaser or Sellers Party or less than the smallest least value claimed for such item claimed by either Purchaser or Sellers and such resolution Party. The decision of the Accessor shall be in accordance with deemed final and binding upon the Accounting Principles parties and otherwise in accordance with this Section 3.2enforceable by any court of competent jurisdiction and the Accessor’s calculation of Final Line-Fill Amount and the Final In-Process Amount shall be deemed the “Final Line-Fill Amount” and/or “Final In-Process Amount.
(iii) In the event Purchaser and Sellers submit any unresolved objections to the Accounting Firm for resolution as provided in Section 3.2(b)(i), the cost of any dispute resolution (including the ” The fees and expenses of the Accounting Firm and reasonable attorney fees and expenses of the Parties) Accessor shall be borne allocated to be paid by Purchaser and Sellers in inverse proportion as they may prevail on matters resolved by the Accounting Firm, which proportionate allocations also shall be determined by the Accounting Firm at the time the determination of the Accounting Firm is rendered on the merits of the matters submittedNewCo.
(iv) For purposes of complying with this Section 3.2, Purchaser and Sellers shall provide each other and the other’s auditors reasonable access during normal business hours to the personnel, properties, contracts, books and records relating to the Business, the Acquired Assets and the Assumed Liabilities in connection with the preparation of the Closing Statement and the resolution of any disputed amounts under the Closing Statement.
Appears in 1 contract
Samples: Refining Contribution Agreement (Philadelphia Energy Solutions Inc.)
Disputed Final Adjustment. (i) The Closing Statement shall become final and binding upon the Parties on the thirtieth (30th) day following delivery thereof, unless Sellers deliver written notice to Purchaser prior to such date of its disagreement with preparation or content of the Closing Statement, including any disagreement with any balances or other amounts reflected in the Closing Data Tape (a “Notice of Disagreement”). During such No later than thirty (30)-day period, Sellers and their designated auditor shall be permitted to reasonable access during normal business hours the working papers of Purchaser relating to the Closing Statement and the Closing Data Tape and to Purchaser’s auditor and representatives who prepared the Closing Statement and the Closing Data Tape. A Notice of Disagreement must describe in reasonable detail the items contained in the Closing Statement that Sellers dispute and the basis for any such disputes. During the thirty (30)-day period 30) days following the delivery by Purchaser of a Notice of Disagreementthe Adjustment Statement, Sellers and the Stockholders’ Representative shall notify Purchaser shall seek in good faith to resolve in writing any differences that they may have with respect to whether it accepts or disputes the matters specified in the Notice of Disagreement and seek to agree on a final determination accuracy of the Closing calculation of any the Net Funds EmployedWorking Capital, the Foreign Excess Cash Amount and the Prepaids Amountor Indebtedness set forth therein. At the end of During such thirty (30) day period, if no agreement on the Closing Net Funds Employed, the Foreign Cash Amount and the Prepaids Amount has been reached, Sellers and Purchaser shall engage a nationally recognized independent accounting firm (the “Accounting Firm”) for arbitration of any and all matters that remain in dispute and were properly included in the Notice of Disagreement. The Accounting Firm Stockholders’ Representative shall be Xxxxx Xxxxxxxx LLP orprovided (subject to executing a confidentiality agreement) with access to the financial books and records of the Company Group used in preparing the Adjustment Statement to the extent reasonably necessary to enable it to evaluate the Adjustment Statement; provided, if that such firm is unable or unwilling to act, such other nationally recognized independent public accounting firm as access shall be agreed in a manner that does not interfere with the normal business operations of Purchaser or the Company and upon by reasonable advance written notice. If the Parties in writing. As promptly as practicable after Stockholders’ Representative accepts the engagement of the Accounting Firm, Sellers shall submit any unresolved elements calculation set forth in the Notice Adjustment Statement, or if the Stockholders’ Representative fails within such thirty (30) day period to notify Purchaser of Disagreement to the Accounting Firm in writing (with a copy to Purchaser), supported by any documents and arguments upon which they rely. As promptly as practicable thereafter, Purchaser shall submit its response to the Accounting Firm (with a copy to Sellers) supported by any documents and arguments upon which it relies. The Parties shall instruct the Accounting Firm to render its reasoned written decision dispute with respect thereto, then the calculation of Merger Consideration determined in the Adjustment Statement shall be deemed final, conclusive and binding on the parties.
(ii) If the Stockholders’ Representative disputes the accuracy of the calculation of Adjustment Statement, the Stockholders’ Representative shall provide written notice to each disagreement asserted in accordance with this Section 3.2(b)(i) as promptly as practicable but in Purchaser no event later than thirty (30) days after submission of all matters in dispute. Judgment may be entered upon following the determination delivery by Purchaser to the Stockholders’ Representative of the Accounting Firm Adjustment Statement (the “Dispute Notice”), setting forth in any court having jurisdiction reasonable detail each item that the Stockholders’ Representative disputes and the basis for its disagreement therewith. During the thirty (30) day period following delivery of a Dispute Notice, Purchaser and the Stockholders’ Representative shall negotiate in good faith with a view to resolving their disagreements over the Party against which such determination is to be enforced.
(ii) Notwithstanding any provisions hereof to disputed items. If the contraryparties resolve their differences over the disputed items in accordance with the foregoing procedure, the Accounting Firm final amounts so agreed upon by them shall be deemed final and binding on the parties and shall be used to be acting determine the final Merger Consideration. If the parties fail to resolve their differences over the disputed items within such thirty (30) day period, then either Purchaser or the Stockholders’ Representative may forthwith request that a partner of an independent accounting firm of national standing mutually agreed to by the parties (the “Accounting Expert”) make a binding determination as an expert to the disputed items in accordance with this Agreement.
(iii) The Accounting Expert will under the terms of its engagement have no more than thirty (30) days from the date of referral within which to render its written decision with respect to the disputed items (and not as an arbiter only with respect to any unresolved disputed items set forth in the Dispute Notice) and the proceeding before final calculation of the Accounting Firm Merger Consideration shall be an expert determination under based solely on the law governing expert determination. None resolution of Sellers or Purchaser shall have any ex parte communications with the Accounting Firm without the prior consent of Purchaser or Sellers, as the case may besuch disputed items. The Accounting Firm Expert shall review such submissions and base its determination solely on the submissions made by Sellers and Purchaser, the terms of this Agreement and the Accounting Principlessuch submissions. In resolving any disputed item submitted to the Accounting Firmitem, the Accounting Firm Expert may not assign a value to any item greater than the greatest maximum value claimed for such item claimed by either Purchaser or Sellers party or less than the smallest minimum value claimed for such item claimed by either Purchaser or Sellers and such resolution party. The decision of the Accounting Expert shall be in accordance with deemed final and binding upon the parties and enforceable by any court of competent jurisdiction and the Accounting Principles Expert’s final calculation of the actual Net Working Capital, Excess Cash and otherwise in accordance with this Section 3.2.
(iii) In Indebtedness shall be deemed final and binding on the event Purchaser parties and Sellers submit any unresolved objections used to calculate the Accounting Firm for resolution as provided in Section 3.2(b)(i), the cost of any dispute resolution (including the final Merger Consideration. The fees and expenses of the Accounting Firm Expert shall be allocated to be paid by Purchaser, on the one hand, and reasonable attorney fees and expenses the Stockholders’ Representative (on behalf of the Parties) shall be borne Company Securityholders, severally and not jointly, in proportion to their Pro Rata Share), on the other hand, based upon the percentage that the portion of the contested amount not awarded to each party bears to the amount actually contested by Purchaser and Sellers in inverse proportion such party, as they may prevail on matters resolved by the Accounting Firm, which proportionate allocations also shall be determined by the Accounting Firm at the time the determination of the Accounting Firm is rendered on the merits of the matters submittedExpert.
(iv) For purposes of complying The Merger Consideration as determined either (A) by the Stockholders’ Representative’s failure to timely deliver a Dispute Notice in accordance with this Section 3.22.5(c)(ii), (B) by agreement between Purchaser and Sellers the Stockholders’ Representative in accordance with Section 2.5(c)(i), or (C) by the Accounting Expert pursuant to Section 2.5(c)(iii), shall provide each other and be referred to as the other’s auditors reasonable access during normal business hours to the personnel, properties, contracts, books and records relating to the Business, the Acquired Assets and the Assumed Liabilities in connection with the preparation of the Closing Statement and the resolution of any disputed amounts under the Closing Statement“Final Merger Consideration”.
Appears in 1 contract
Samples: Merger Agreement (ironSource LTD)
Disputed Final Adjustment. If a Dispute Notice is timely delivered within the sixty (60)-day period referred to in Section 1.3(b)(i), (i) The any amount set forth in the Final Closing Statement and not disputed in such Dispute Notice shall become final be final, conclusive and binding upon on Purchaser and Seller; and (ii) Purchaser and Seller shall negotiate in good faith during the Parties thirty (30)-day period after delivery of such Dispute Notice to resolve each dispute raised therein (each, an “Objection”), and if any Objection is resolved, the item so resolved shall be deemed final, conclusive and binding on the thirtieth (30th) day following delivery thereof, unless Sellers deliver written notice to Purchaser prior to such date of its disagreement with preparation or content and Seller. If Purchaser and Seller resolve all of the Closing Statement, including any disagreement with any balances or other amounts reflected disputed items in the Closing Data Tape (a “such Dispute Notice of Disagreement”). During during such thirty (30)-day period, Sellers and their designated auditor the Final Closing Statement shall be permitted revised to reasonable access during normal business hours reflect such resolution, and as so revised shall be final, conclusive and binding on Purchaser and Seller. If Purchaser and Seller, notwithstanding such good faith efforts, fail to resolve all of the working papers of Purchaser relating to the Closing Statement and the Closing Data Tape and to Purchaser’s auditor and representatives who prepared the Closing Statement and the Closing Data Tape. A Notice of Disagreement must describe in reasonable detail the items contained in the Closing Statement that Sellers dispute and the basis for any Objections within such disputes. During the thirty (30)-day period following the delivery of a Notice of Disagreement, Sellers and Purchaser shall seek in good faith to resolve in writing any differences that (or such longer period as they may have with respect to the matters specified in the Notice of Disagreement and seek to agree on a final determination of the Closing Net Funds Employedmutually agree), the Foreign Cash Amount and the Prepaids Amount. At then at the end of such thirty (30) day period, if no agreement on the Closing Net Funds Employed, the Foreign Cash Amount period Purchaser and the Prepaids Amount has been reached, Sellers and Purchaser Seller shall jointly engage a nationally recognized independent accounting firm (the “Accounting Firm”) for arbitration of any and all matters that remain in dispute and were properly included in the Notice of Disagreement. The Accounting Firm shall be Xxxxx Xxxxxxxx BDO Xxxxxxx LLP or, if such firm is unable or unwilling to actserve in such capacity, such other nationally another nationally-recognized independent public accounting firm as reasonably acceptable to both Purchaser and Seller (the “Accounting Arbitrator”), and shall be agreed upon by the Parties in writing. As promptly as practicable after the engagement instruct such firm to review and resolve exclusively all of the Accounting Firm, Sellers shall submit any unresolved elements set forth Objections (and no other matters contained in the Notice of Disagreement to the Accounting Firm in writing Final Closing Statement) (with a copy to Purchaser), supported by any documents acting as an expert and arguments upon which they rely. As promptly as practicable thereafter, Purchaser shall submit its response to the Accounting Firm (with a copy to Sellersnot an arbitrator) supported by any documents and arguments upon which it relies. The Parties shall instruct the Accounting Firm to render its reasoned written decision with respect to each disagreement asserted in accordance with this Agreement (including Section 3.2(b)(i1.5(e)) as promptly soon as practicable thereafter (but in no any event later than within thirty (30) days after submission of all matters in dispute. Judgment may be entered upon the determination engagement of the Accounting Firm in any court having jurisdiction over the Party against which such determination is to be enforced.
(ii) Notwithstanding any provisions hereof to the contrary, Arbitrator). Purchaser and Seller shall instruct the Accounting Firm Arbitrator to deliver a written report containing its calculation of the disputed Objections within such thirty (30)-day period. Purchaser and Seller shall be deemed to be acting as an expert and not as an arbiter and the proceeding before instruct the Accounting Firm shall be an expert determination under the law governing expert determination. None of Sellers or Purchaser shall have any ex parte communications with the Accounting Firm without the prior consent of Purchaser or Sellers, as the case may be. The Accounting Firm shall review such submissions and base its determination solely on the submissions made by Sellers and Purchaser, the terms of this Agreement and the Accounting Principles. In resolving any disputed item submitted Arbitrator to the Accounting Firm, the Accounting Firm may not assign a value dollar amount to any item Objection greater than the greatest value claimed dollar amount for such item assigned by either Purchaser Purchaser, on the one hand, or Sellers Seller, on the other hand, or less lower than the smallest value claimed lowest dollar amount for such item assigned by either Purchaser, on the one hand, or Seller, on the other hand. All Objections that are determined by the Accounting Arbitrator shall be deemed final, conclusive and binding on Purchaser or Sellers and Seller, absent manifest error, effective as of the date the Accounting Arbitrator’s written determination is received by Purchaser and Seller and shall be enforceable by any court of competent jurisdiction. The Final Closing Statement shall be revised to reflect such resolution shall be in accordance with and the Accounting Principles and otherwise Final Closing Statement, as finally determined in accordance with this Section 3.2.
(iii1.5(b)(i) In the event shall be final, conclusive and binding on Purchaser and Sellers submit any unresolved objections to the Accounting Firm for resolution as provided in Section 3.2(b)(i), the cost of any dispute resolution (including the Seller. The fees and expenses of the Accounting Firm and reasonable attorney fees and expenses Arbitrator incurred in connection with the resolution of the Partiesdisputes pursuant to this Section 1.5(c) shall be borne entirely by Purchaser and Sellers in inverse proportion (A) Purchaser, if (I) the difference between the Net Increase or Net Decrease (as they may prevail applicable) based on matters resolved by Purchaser’s position with respect to each Objection submitted to the Accounting FirmArbitrator for resolution, which proportionate allocations also shall be and the amount of the Net Increase or Net Decrease determined by based upon the Final Closing Statement is greater than (II) the difference between the Net Increase or Net Decrease (as applicable) based on Seller’s position with respect to each Objection submitted to the Accounting Firm at Arbitrator for resolution, and the time the determination amount of the Accounting Firm is rendered on Net Increase or Net Decrease determined based upon the merits of the matters submitted.
(iv) For purposes of complying with this Section 3.2, Purchaser and Sellers shall provide each other and the other’s auditors reasonable access during normal business hours to the personnel, properties, contracts, books and records relating to the Business, the Acquired Assets and the Assumed Liabilities in connection with the preparation of the Final Closing Statement and the resolution of any disputed amounts under the Closing Statementor (B) by Seller in all other cases.
Appears in 1 contract
Samples: Stock Purchase Agreement (GTT Communications, Inc.)
Disputed Final Adjustment. (i) The Closing Statement shall become final and binding upon the Parties on the thirtieth (30th) day following delivery thereof, unless Sellers deliver written notice to Purchaser prior to such date of its disagreement with preparation or content of the Closing Statement, including any disagreement with any balances or other amounts reflected in the Closing Data Tape (a “Notice of Disagreement”). During such No later than thirty (30)-day period, Sellers and their designated auditor shall be permitted to reasonable access during normal business hours 30) days following the working papers delivery by Purchaser of Purchaser relating to both the Closing Completion Statement and the Closing Data Tape and to Purchaser’s auditor and representatives who prepared the Closing Statement and the Closing Data Tape. A Notice of Disagreement must describe in reasonable detail the items contained supporting or underlying documentation used in the Closing Statement that Sellers dispute preparation thereof, the Sellers’ Representatives shall notify Purchaser in writing whether it accepts or disputes the accuracy of the calculation of Actual Working Capital, Actual Cash, Actual Indebtedness and the basis for any such disputesActual Transaction Expenses. During the thirty (30)-day period following the delivery of a Notice of Disagreement, Sellers and Purchaser shall seek in good faith to resolve in writing any differences that they may have with respect to the matters specified in the Notice of Disagreement and seek to agree on a final determination of the Closing Net Funds Employed, the Foreign Cash Amount and the Prepaids Amount. At the end of such thirty (30) day period, if no agreement on the Closing Net Funds EmployedSellers’ Representatives and their agents shall be provided with reasonable access during normal business hours and upon reasonable notice to the relevant financial books and records of the Company as well as any relevant work papers as they may reasonably request to enable them to evaluate the calculation of Actual Working Capital, Actual Cash, Actual Indebtedness and Actual Transaction Expenses prepared by Purchaser. If the Sellers’ Representatives accept the calculation of Actual Working Capital, Actual Cash, Actual Indebtedness and Actual Transaction Expenses determined pursuant to Section 2.6(b), or the Sellers’ Representatives fail within such thirty (30) day period to notify Purchaser of any dispute with respect thereto, then the calculation of Actual Working Capital determined pursuant to Section 2.6(b) shall be the “Final Working Capital,” the calculation of Actual Cash determined pursuant to Section 2.6(b) shall be the “Final Cash,” the calculation of Actual Indebtedness determined pursuant to Section 2.6(b) shall be the “Final Indebtedness” and the calculation of Actual Transaction Expenses determined pursuant to Section 2.6(b) shall be the “Final Transaction Expenses,” which, in each case, shall be deemed final and conclusive and binding upon all parties in all respects.
(ii) If the Sellers’ Representatives disputes the accuracy of the calculation of any or all of Actual Working Capital, Actual Cash, Actual Indebtedness or Actual Transaction Expenses, the Foreign Cash Amount and the Prepaids Amount has been reached, Sellers and Sellers’ Representatives shall provide written notice to Purchaser shall engage a nationally recognized independent accounting firm (the “Accounting Firm”) for arbitration of any and all matters that remain in dispute and were properly included in the Notice of Disagreement. The Accounting Firm shall be Xxxxx Xxxxxxxx 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 the Parties in writing. As promptly as practicable after the engagement of the Accounting Firm, Sellers shall submit any unresolved elements set forth in the Notice of Disagreement to the Accounting Firm in writing (with a copy to Purchaser), supported by any documents and arguments upon which they rely. As promptly as practicable thereafter, Purchaser shall submit its response to the Accounting Firm (with a copy to Sellers) supported by any documents and arguments upon which it relies. The Parties shall instruct the Accounting Firm to render its reasoned written decision with respect to each disagreement asserted in accordance with this Section 3.2(b)(i) as promptly as practicable but in no event later than thirty (30) days after submission following the delivery by Purchaser to the Sellers’ Representatives of both the calculation of Actual Working Capital, Actual Cash, Actual Indebtedness or Actual Transaction Expenses and the reasonable supporting or underlying documentation used in the preparation thereof (the “Dispute Notice”), setting forth in reasonable detail the basis for such dispute(s), the amount(s) involved and the Sellers’ Representatives’ proposed adjustment(s) to the Completion Statement with reasonable supporting documentation. During the thirty (30) day period following delivery of the Dispute Notice, Purchaser and the Sellers’ Representatives shall negotiate in good faith with a view to resolving their disagreements over the disputed items. During such thirty (30) day period and until the final determination of Actual Working Capital, Actual Cash, Actual Indebtedness and/or Actual Transaction Expenses in accordance with this Section 2.6(c)(ii) or Section 2.6(c)(iii), as the case may be (as so determined, or as determined pursuant to Section 2.6(c)(i) above, “Final Working Capital”, “Final Cash,” “Final Indebtedness” and “Final Transaction Expenses,” respectively), the Sellers’ Representatives and their agents shall be provided with reasonable access during normal business hours and upon reasonable notice to the relevant financial books and records of the Company as they may reasonably request to enable them to address all matters in dispute. Judgment may be entered upon the determination of the Accounting Firm set forth in any court having jurisdiction Dispute Notice. If the parties resolve their differences over the Party against which disputed items in accordance with the foregoing procedure, Final Working Capital, Final Cash, Final Indebtedness and/or Final Transaction Expenses shall be the amount agreed upon by them. If the parties fail to resolve their differences over the disputed items within such determination is to thirty (30) day period, then Purchaser and the Sellers’ Representatives shall forthwith refer any matter in dispute to: (i) such reputable independent firm of UK chartered accountants as shall be enforced.
jointly nominated by Purchaser and the Sellers’ Representatives; or (ii) Notwithstanding any provisions hereof to failing nomination within ten (10) days after a request for joint nomination by either of them, such reputable independent firm of chartered accountants as is nominated at the contrary, request of either Purchaser or the Sellers’ Representatives by the president of the Institute of Chartered Accountants in England and Wales (the “Accounting Firm”). The Accounting Firm shall be deemed to be acting act as an expert and not as an arbiter arbitrator and the proceeding before the Accounting Firm shall be an expert make a binding determination under the law governing expert determination. None of Sellers or Purchaser shall have any ex parte communications with the Accounting Firm without the prior consent of Purchaser or Sellers, as the case may be. The Accounting Firm shall review such submissions and base its determination solely on the submissions made by Sellers and Purchaser, the terms of this Agreement and the Accounting Principles. In resolving any disputed item submitted to the Accounting Firm, the Accounting Firm may not assign a value to any item greater than the greatest value claimed for such item by either Purchaser or Sellers or less than the smallest value claimed for such item by either Purchaser or Sellers and such resolution shall be in accordance with the Accounting Principles and otherwise items disputed under this Section 2.6(c) in accordance with this Section 3.2Agreement.
(iii) In the event Purchaser and Sellers submit any unresolved objections to the Accounting Firm for resolution as provided in Section 3.2(b)(i), the cost of any dispute resolution (including the fees and expenses of the Accounting Firm and reasonable attorney fees and expenses of the Parties) shall be borne by Purchaser and Sellers in inverse proportion as they may prevail on matters resolved by the Accounting Firm, which proportionate allocations also shall be determined by the Accounting Firm at the time the determination of the Accounting Firm is rendered on the merits of the matters submitted.
(iv) For purposes of complying with this Section 3.2, Purchaser and Sellers shall provide each other and the other’s auditors reasonable access during normal business hours to the personnel, properties, contracts, books and records relating to the Business, the Acquired Assets and the Assumed Liabilities in connection with the preparation of the Closing Statement and the resolution of any disputed amounts under the Closing Statement.
Appears in 1 contract
Disputed Final Adjustment. i. No later than thirty (i30) The Closing Statement shall become final and binding upon days following the Parties on the thirtieth (30th) day following delivery thereof, unless Sellers deliver written notice to Purchaser prior to such date of its disagreement with preparation or content by Parent of the Closing Statement, including any disagreement with any balances or other amounts reflected the Representative shall notify Parent in writing if it disputes the Closing Data Tape (a “Notice accuracy of Disagreement”)the calculation of Actual Net Working Capital, Actual Indebtedness and Actual Transaction Expenses. During such thirty (30)-day period, Sellers Parent and their designated auditor the Surviving Corporation shall be permitted to provide the Representative and its agents with reasonable access during normal business hours and upon reasonable notice to the working relevant financial books and records of the Company as well as any relevant work papers as it may reasonably request to enable it to evaluate the calculations of Purchaser relating Actual Net Working Capital, Actual Indebtedness and Actual Transaction Expenses prepared by Parent. If the Representative accepts the calculation of Actual Net Working Capital, Actual Indebtedness and Actual Transaction Expenses determined pursuant to Section 2.12(b), or if the Representative fails within such thirty (30)-day period to notify Parent of any dispute with respect thereto, then the calculation of Actual Net Working Capital determined pursuant to Section 2.12(b) shall be the “Final Net Working Capital,” the calculation of Actual Indebtedness determined pursuant to Section 2.12(b) shall be the “Final Indebtedness” and the calculation of Actual Transaction Expenses determined pursuant to Section 2.12(b) shall be the “Final Transaction Expenses,” which, in each case, shall be deemed final and conclusive and binding upon all parties in all respects.
ii. If the Representative disputes the accuracy of the calculation of Actual Net Working Capital, Actual Indebtedness or Actual Transaction Expenses, the Representative shall provide written notice to Parent no later than thirty (30) days following the delivery by Parent to the Representative of the Closing Statement, setting forth in reasonable detail the basis for such dispute(s), the amount(s) involved and the Representative’s proposed adjustment(s) to the Closing Statement and with reasonable supporting documentation (the Closing Data Tape and to Purchaser’s auditor and representatives who prepared the Closing Statement and the Closing Data Tape. A Notice of Disagreement must describe in reasonable detail the items contained in the Closing Statement that Sellers dispute and the basis for any such disputes“Dispute Notice”). During the thirty (30)-day period following the delivery of a Notice of Disagreementthe Dispute Notice, Sellers Parent and Purchaser the Representative shall seek negotiate in good faith with a view to resolve in writing any differences that they may have with respect to resolving their disagreements over the matters specified in disputed items. During such thirty (30)-day period and until the Notice of Disagreement and seek to agree on a final determination of Actual Net Working Capital, Actual Indebtedness and/or Actual Transaction Expenses in accordance with this Section 2.12(c)(ii) or Section 2.12(c)(iii), as the Closing case may be (as so determined, or as determined pursuant to Section 2.12(c)(i) above, “Final Net Funds EmployedWorking Capital,” “Final Indebtedness” and “Final Transaction Expenses,” respectively), the Foreign Cash Amount Representative and its agents shall be provided with reasonable access during normal business hours and upon reasonable notice to the Prepaids Amountrelevant financial books and records of the Company as it may reasonably request to enable it to address all matters set forth in any Dispute Notice. At If the end of parties resolve their differences over the disputed items in accordance with the foregoing procedure, the Final Net Working Capital, Final Indebtedness and/or Final Transaction Expenses shall be the amounts agreed upon by them. If the parties fail to resolve their differences over the disputed items within such thirty (30) day 30)-day period, if no agreement on the Closing Net Funds Employed, the Foreign Cash Amount then Parent and the Prepaids Amount has been reached, Sellers and Purchaser Representative shall engage forthwith jointly request that the transaction dispute (or equivalent) group of a nationally recognized independent accounting firm (the “Accounting Firm”) for arbitration of any and all matters that remain in dispute and were properly included in the Notice of Disagreement. The Accounting Firm shall be Xxxxx Xxxxxxxx LLP or, if such firm is unable or unwilling to act, such other nationally recognized independent public accounting firm as shall be mutually agreed upon by Parent and the Parties in writing. As promptly as practicable after Representative (the engagement of the “Accounting Firm, Sellers shall submit any unresolved elements set forth in the Notice of Disagreement to the Accounting Firm in writing (with a copy to Purchaser”), supported by any documents and arguments upon which they rely. As promptly as practicable thereafter, Purchaser shall submit its response to the Accounting Firm (with a copy to Sellers) supported by any documents and arguments upon which it relies. The Parties shall instruct the Accounting Firm to render its reasoned written decision with respect to each disagreement asserted in accordance with this Section 3.2(b)(i) as promptly as practicable but in no event later than thirty (30) days after submission of all matters in dispute. 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.
(ii) Notwithstanding any provisions hereof to the contrary, the Accounting Firm shall be deemed to be acting as an expert and not as an arbiter and arbitrator, make a binding determination as to the proceeding before items disputed under this Section 2.12(c) in accordance with this Agreement; provided, however, that if the parties are unable to mutually agree on the Accounting Firm within ten (10) Business Day following notice of such dispute, each party shall be designate an expert determination under accounting firm in writing to the law governing expert determination. None other party, and each such accounting firm designated by each of Sellers or Purchaser the respective parties shall have any ex parte communications with mutually agree to nominate another firm to serve as the Accounting Firm without the prior consent of Purchaser or Sellers, and such other firm shall serve as the case may beAccounting Firm.
iii. The Accounting Firm will under the terms of its engagement have no more than forty-five (45) days from the date of referral and no more than ten (10) Business Days from the final submission of information and testimony by Parent and the Representative within which to render its written decision, including a statement in reasonable detail setting forth the basis of such written decision, with respect to the disputed items (and only with respect to any unresolved disputed items set forth in the Dispute Notice) and the final calculation of Actual Net Working Capital, Actual Indebtedness and/or Actual Transaction Expenses shall be based solely on the resolution of such disputed items. The Accounting Firm shall review such submissions and base its determination solely on the submissions made by Sellers and Purchaser, the terms of this Agreement and the Accounting Principlessuch submissions. In resolving any disputed item submitted to the Accounting Firmitem, the Accounting Firm may not assign a value to any item greater than the greatest maximum value claimed for such item claimed by either Purchaser or Sellers party or less than the smallest minimum value claimed for such item claimed by either Purchaser or Sellers and such resolution shall be in accordance with the Accounting Principles and otherwise in accordance with this Section 3.2.
(iii) In the event Purchaser and Sellers submit any unresolved objections to party. The decision of the Accounting Firm for resolution as provided in Section 3.2(b)(i), shall be deemed final and binding upon the cost parties and enforceable by any court of any dispute resolution (including competent jurisdiction and the Accounting Firm’s final calculation of Actual Net Working Capital shall be deemed the “Final Net Working Capital,” the Accounting Firm’s final calculation of Actual Indebtedness shall be deemed the “Final Indebtedness” and/or the Accounting Firm’s final calculation of Actual Transaction Expenses shall be deemed the “Final Transaction Expenses.” The fees and expenses of the Accounting Firm and reasonable attorney fees and expenses of (the Parties“Accounting Firm Fees”) shall be borne allocated to be paid by Purchaser Parent and Sellers the Representative (on behalf of the Equityholders, Bonus Recipients and Convertible Noteholders, severally and not jointly, in inverse proportion to the fully diluted ownership percentages set forth on the Distribution Waterfall), so that the Representative (on behalf of the Equityholders, Bonus Recipients and Convertible Noteholders severally and not jointly, in proportion to the fully diluted ownership percentages set forth on the Distribution Waterfall) shall be responsible for that portion of Accounting Firm Fees in an amount equal to such Accounting Firm Fees multiplied by a fraction, the numerator of which is the aggregate dollar value of issues in dispute submitted to the Accounting Firm that are resolved in a manner further from the position submitted to the Accounting Firm by the Representative and closer to the position submitted to the Accounting Firm by Parent (as they may prevail on matters resolved finally determined by the Accounting Firm), and the denominator of which proportionate allocations also is the total dollar value of the issues in dispute so submitted, and Parent shall be determined by responsible for the Accounting Firm at the time the determination remainder of the Accounting Firm is rendered on the merits of the matters submittedsuch fees and expenses.
(iv) For purposes of complying with this Section 3.2, Purchaser and Sellers shall provide each other and the other’s auditors reasonable access during normal business hours to the personnel, properties, contracts, books and records relating to the Business, the Acquired Assets and the Assumed Liabilities in connection with the preparation of the Closing Statement and the resolution of any disputed amounts under the Closing Statement.
Appears in 1 contract
Samples: Merger Agreement (Mitek Systems Inc)
Disputed Final Adjustment. (i) The Closing Statement shall become final and binding upon the Parties on the thirtieth (30th) day following delivery thereof, unless Sellers deliver written notice to Purchaser prior to such date of its disagreement with preparation or content of the Closing Statement, including any disagreement with any balances or other amounts reflected in the Closing Data Tape (a “Notice of Disagreement”). During such No later than thirty (30)-day period, Sellers and their designated auditor shall be permitted to reasonable access during normal business hours the working papers of Purchaser relating to the Closing Statement and the Closing Data Tape and to Purchaser’s auditor and representatives who prepared the Closing Statement and the Closing Data Tape. A Notice of Disagreement must describe in reasonable detail the items contained in the Closing Statement that Sellers dispute and the basis for any such disputes. During the thirty (30)-day period 30) days following the delivery by Purchaser of a Notice the calculation of DisagreementActual Working Capital, Sellers Actual Cash, Actual Indebtedness and Actual Transaction Expenses, the Sellers’ Representative shall notify Purchaser shall seek in good faith to resolve in writing any differences that they may have with respect to whether it accepts or disputes the matters specified in the Notice of Disagreement and seek to agree on a final determination accuracy of the Closing Net Funds Employedcalculation of Actual Working Capital, the Foreign Cash Amount Actual Cash, Actual Indebtedness and the Prepaids AmountActual Transaction Expenses. At the end of During such thirty (30) day period, the Sellers’ Representative and its agents shall be provided with all relevant records and work papers (subject to the execution by Sellers’ Representative and its agents of a customary access agreement reasonably acceptable to Sellers’ Representative) of the Company Group and its representatives and advisors to enable it to evaluate the Actual Working Capital, Actual Cash, Actual Indebtedness and Actual Transaction Expenses. If the Sellers’ Representative accepts the calculation of Actual Working Capital, Actual Cash, Actual Indebtedness and Actual Transaction Expenses determined pursuant to Section 2.10(b), or if no agreement on the Closing Net Funds EmployedSellers’ Representative fails within such thirty (30) day period to notify Purchaser of any dispute with respect thereto, then the calculation of Actual Working Capital determined pursuant to Section 2.10(b) shall be the “Final Working Capital” and the calculation of Actual Cash, Actual Indebtedness and Actual Transaction Expenses determined pursuant to Section 2.10(b) shall be the “Final Cash”, “Final Indebtedness” and “Final Transaction Expenses” which, in each case, shall be deemed final and conclusive and binding.
(ii) If the Sellers’ Representative disputes the accuracy of the calculation of Actual Working Capital, Actual Cash, Actual Indebtedness or Actual Transaction Expenses, the Foreign Cash Amount and the Prepaids Amount has been reached, Sellers and Sellers’ Representative shall provide written notice to Purchaser shall engage a nationally recognized independent accounting firm (the “Accounting Firm”) for arbitration of any and all matters that remain in dispute and were properly included in the Notice of Disagreement. The Accounting Firm shall be Xxxxx Xxxxxxxx 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 the Parties in writing. As promptly as practicable after the engagement of the Accounting Firm, Sellers shall submit any unresolved elements set forth in the Notice of Disagreement to the Accounting Firm in writing (with a copy to Purchaser), supported by any documents and arguments upon which they rely. As promptly as practicable thereafter, Purchaser shall submit its response to the Accounting Firm (with a copy to Sellers) supported by any documents and arguments upon which it relies. The Parties shall instruct the Accounting Firm to render its reasoned written decision with respect to each disagreement asserted in accordance with this Section 3.2(b)(i) as promptly as practicable but in no event later than thirty (30) days after submission of all matters in dispute. Judgment may be entered upon following the determination delivery by Purchaser to the Sellers’ Representative of the Accounting Firm in any court having jurisdiction over the Party against which such determination is to be enforced.
(ii) Notwithstanding any provisions hereof to the contrarycalculation of Actual Working Capital, the Accounting Firm shall be deemed to be acting as an expert and not as an arbiter and the proceeding before the Accounting Firm shall be an expert determination under the law governing expert determination. None of Sellers or Purchaser shall have any ex parte communications with the Accounting Firm without the prior consent of Purchaser or SellersActual Cash, as the case may be. The Accounting Firm shall review such submissions and base its determination solely on the submissions made by Sellers and Purchaser, the terms of this Agreement and the Accounting Principles. In resolving any disputed item submitted to the Accounting Firm, the Accounting Firm may not assign a value to any item greater than the greatest value claimed for such item by either Purchaser or Sellers or less than the smallest value claimed for such item by either Purchaser or Sellers and such resolution shall be in accordance with the Accounting Principles and otherwise in accordance with this Section 3.2.
(iii) In the event Purchaser and Sellers submit any unresolved objections to the Accounting Firm for resolution as provided in Section 3.2(b)(i), the cost of any dispute resolution (including the fees and expenses of the Accounting Firm and reasonable attorney fees and expenses of the Parties) shall be borne by Purchaser and Sellers in inverse proportion as they may prevail on matters resolved by the Accounting Firm, which proportionate allocations also shall be determined by the Accounting Firm at the time the determination of the Accounting Firm is rendered on the merits of the matters submitted.
(iv) For purposes of complying with this Section 3.2, Purchaser and Sellers shall provide each other and the other’s auditors reasonable access during normal business hours to the personnel, properties, contracts, books and records relating to the Business, the Acquired Assets and the Assumed Liabilities in connection with the preparation of the Closing Statement and the resolution of any disputed amounts under the Closing Statement.Actual
Appears in 1 contract
Disputed Final Adjustment. (i) The As promptly as practicable, but in any event within forty-five (45) days following the delivery by Parent of the calculation of Actual Closing Statement Cash and Actual Working Capital, the Representative shall become notify Parent in writing whether it accepts or disputes the accuracy of the calculation of Actual Closing Cash or Actual Working Capital. If the Representative accepts the calculation of Actual Closing Cash and Actual Working Capital determined pursuant to Section 2.07(b) or does not dispute the calculation of Actual Closing Cash or Actual Working Capital, as applicable, within such forty-five (45) day period, then the calculation of Actual Closing Cash determined pursuant to Section 2.07(b) shall be the “Final Closing Cash” and Actual Working Capital determined pursuant to Section 2.07(b) shall be the “Final Working Capital” and, as applicable, shall be deemed final and conclusive and binding upon all parties in all respects.
(ii) If the Parties on Representative chooses to dispute the thirtieth (30th) day following delivery thereofaccuracy of the calculation of Actual Closing Cash or Actual Working Capital, unless Sellers deliver as applicable, the Representative shall provide written notice to Purchaser prior Parent no later than forty-five (45) days following the delivery by Parent to such date of its disagreement with preparation or content the Representative of the calculation of Actual Closing StatementCash or Actual Working Capital, including any disagreement with any balances or other amounts reflected in as applicable (the Closing Data Tape (a “Notice of DisagreementDispute Notice”). During such thirty (30)-day period, Sellers and their designated auditor shall be permitted to reasonable access during normal business hours the working papers of Purchaser relating to the Closing Statement and the Closing Data Tape and to Purchaser’s auditor and representatives who prepared the Closing Statement and the Closing Data Tape. A Notice of Disagreement must describe setting forth in reasonable detail those items that the items contained in the Closing Statement that Sellers dispute and the basis for any such Representative disputes. During the thirty (30)-day 30) day period following the delivery of a Notice of DisagreementDispute Notice, Sellers Parent and Purchaser the Representative shall seek discuss such disputes in good faith with a view to resolving their disagreements over the disputed items (and all such discussions related thereto shall, unless otherwise agreed by Parent and the Representative, be governed by Rule 408 of the Federal Rules of Evidence (and any applicable similar state rule)). If the parties resolve their differences over the disputed items in accordance with the foregoing procedure, “Final Closing Cash” or “Final Working Capital”, as applicable, shall be the amount agreed upon by them. If the parties fail to resolve in writing any their differences that they may have with respect to over the matters specified in the Notice of Disagreement and seek to agree on a final determination of the Closing Net Funds Employed, the Foreign Cash Amount and the Prepaids Amount. At the end of disputed items within such thirty (30) day period, if no agreement on the Closing Net Funds Employed, the Foreign Cash Amount Parent and the Prepaids Amount has been reached, Sellers and Purchaser Representative shall engage a nationally recognized independent accounting firm forthwith jointly request that KPMG LLP (the “Accounting FirmArbitrator”) for arbitration of any and all matters that remain in dispute and were properly included in the Notice of Disagreement. The Accounting Firm shall be Xxxxx Xxxxxxxx LLP or, if such firm is unable or unwilling to act, such other nationally recognized independent public accounting firm make a binding determination as shall be agreed upon by the Parties in writing. As promptly as practicable after the engagement of the Accounting Firm, Sellers shall submit any unresolved elements set forth in the Notice of Disagreement to the Accounting Firm in writing (with a copy to Purchaser), supported by any documents and arguments upon which they rely. As promptly as practicable thereafter, Purchaser shall submit its response to the Accounting Firm (with a copy to Sellers) supported by any documents and arguments upon which it relies. The Parties shall instruct the Accounting Firm to render its reasoned written decision with respect to each disagreement asserted disputed items in accordance with this Section 3.2(b)(i) as promptly as practicable but in no event later than thirty (30) days after submission of all matters in dispute. 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 enforcedAgreement.
(ii) Notwithstanding any provisions hereof to the contrary, the Accounting Firm shall be deemed to be acting as an expert and not as an arbiter and the proceeding before the Accounting Firm shall be an expert determination under the law governing expert determination. None of Sellers or Purchaser shall have any ex parte communications with the Accounting Firm without the prior consent of Purchaser or Sellers, as the case may be. The Accounting Firm shall review such submissions and base its determination solely on the submissions made by Sellers and Purchaser, the terms of this Agreement and the Accounting Principles. In resolving any disputed item submitted to the Accounting Firm, the Accounting Firm may not assign a value to any item greater than the greatest value claimed for such item by either Purchaser or Sellers or less than the smallest value claimed for such item by either Purchaser or Sellers and such resolution shall be in accordance with the Accounting Principles and otherwise in accordance with this Section 3.2.
(iii) In the event Purchaser and Sellers submit any unresolved objections to the Accounting Firm for resolution as provided in Section 3.2(b)(i), the cost of any dispute resolution (including the fees and expenses of the Accounting Firm and reasonable attorney fees and expenses of the Parties) shall be borne by Purchaser and Sellers in inverse proportion as they may prevail on matters resolved by the Accounting Firm, which proportionate allocations also shall be determined by the Accounting Firm at the time the determination of the Accounting Firm is rendered on the merits of the matters submitted.
(iv) For purposes of complying with this Section 3.2, Purchaser and Sellers shall provide each other and the other’s auditors reasonable access during normal business hours to the personnel, properties, contracts, books and records relating to the Business, the Acquired Assets and the Assumed Liabilities in connection with the preparation of the Closing Statement and the resolution of any disputed amounts under the Closing Statement.
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Samples: Merger Agreement (Brady Corp)
Disputed Final Adjustment. (i) The Closing Statement shall become final and binding upon No later than thirty (30) days following the Parties on the thirtieth (30th) day following delivery thereof, unless Sellers deliver written notice to by Purchaser prior to such date of its disagreement with preparation or content of the Closing Statement, including any disagreement with any balances Seller Parent shall notify Purchaser in writing whether Seller Parent (on behalf of all Sellers) accepts or other amounts reflected in disputes the accuracy of the calculations set forth on the Closing Data Tape (a “Notice of Disagreement”)Statement. During such thirty (30)-day period, Sellers Seller Parent and their designated auditor its agents shall be permitted to provided with reasonable access during normal business hours the working papers of Purchaser relating to the financial books and records of the Acquired Companies, as well as any relevant work papers (subject to compliance with Purchaser’s independent accountants’ customary procedures for release) as Seller Parent and its agents may reasonably request, to enable Seller Parent and its agents to evaluate the calculations of Closing Statement Working Capital, Closing Cash, Closing Indebtedness and Closing Company Transaction Expenses prepared by Purchaser. If Seller Parent accepts the Closing Data Tape and Statement, or if Seller Parent fails within such thirty (30)-day period to Purchaser’s auditor and representatives who prepared notify Purchaser of any dispute with respect thereto, then the calculation of Closing Statement and the Closing Data Tape. A Notice of Disagreement must describe in reasonable detail the items contained Working Capital set forth in the Closing Statement that Sellers dispute shall be the “Final Working Capital,” the calculation of Closing Cash set forth in the Closing Statement shall be the “Final Cash,” the calculation of Closing Indebtedness set forth in the Closing Statement shall be the “Final Indebtedness” and the basis for calculation of Closing Company Transaction Expenses set forth in the Closing Statement shall be the “Final Company Transaction Expenses,” which, in each case, shall be deemed final and conclusive and binding upon all Parties in all respects.
(ii) If Seller Parent disputes the accuracy of any such calculations set forth on the Closing Statement, Seller Parent shall provide written notice to Purchaser no later than thirty (30) days following the delivery by Purchaser to Seller Parent of the Closing Statement (the “Dispute Notice”), setting forth in reasonable detail those items that Seller Parent disputes, which shall be limited to mathematical errors and whether calculations of amounts are in accordance with the Accounting Principles and the terms of this Agreement. If given, the Dispute Notice will set forth any proposed adjustment to the Closing Statement. During the thirty (30)-day period following the delivery of a Notice of DisagreementDispute Notice, Sellers Purchaser and Purchaser Seller Parent shall seek negotiate in good faith with a view to resolve in writing any differences that they may have with respect to resolving their disagreements over the matters specified in disputed items. During such thirty (30)-day period and until the Notice of Disagreement and seek to agree on a final determination of the Closing Net Funds EmployedFinal Working Capital, the Foreign Cash Amount and the Prepaids Amount. At the end of such thirty (30) day periodFinal Cash, if no agreement on the Closing Net Funds Employed, the Foreign Cash Amount and the Prepaids Amount has been reached, Sellers and Purchaser shall engage a nationally recognized independent accounting firm (the “Accounting Firm”) for arbitration of any and all matters that remain in dispute and were properly included in the Notice of Disagreement. The Accounting Firm shall be Xxxxx Xxxxxxxx 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 the Parties in writing. As promptly as practicable after the engagement of the Accounting Firm, Sellers shall submit any unresolved elements set forth in the Notice of Disagreement to the Accounting Firm in writing (with a copy to Purchaser), supported by any documents and arguments upon which they rely. As promptly as practicable thereafter, Purchaser shall submit its response to the Accounting Firm (with a copy to Sellers) supported by any documents and arguments upon which it relies. The Parties shall instruct the Accounting Firm to render its reasoned written decision with respect to each disagreement asserted Final Indebtedness and/or Final Company Transaction Expenses in accordance with this Section 3.2(b)(i2.5(c)(ii), Seller Parent and its agents shall be provided with such access to the financial books and records of the Acquired Companies and Purchaser as Seller Parent and its agents may reasonably request to enable Seller Parent and its agents to address all matters set forth in any Dispute Notice. If the Parties resolve their differences over the disputed items in accordance with the foregoing procedure, “Final Working Capital,” “Final Cash,” “Final Indebtedness” and/or “Final Company Transaction Expenses” shall be the amounts agreed upon by them. If the Parties fail to resolve their differences over the disputed items within such thirty (30)-day period, then Purchaser and Seller Parent shall forthwith jointly request that Deloitte Touche Tohmatsu Limited (the “Accounting Arbitrator”) make a binding determination as promptly as practicable but to the unresolved disputed items in accordance with Section 2.5(c)(iii).
(iii) The Accounting Arbitrator will, under the terms of its engagement, have no event later more than thirty (30) days after from the date of referral and no more than ten (10) Business Days from the final submission of all matters in dispute. Judgment may be entered upon the determination of the Accounting Firm in any court having jurisdiction over the Party against information and testimony by Purchaser and Seller Parent within which such determination is to be enforced.
(ii) Notwithstanding any provisions hereof render its written decision with respect to the contrarydisputed items (and only with respect to any unresolved disputed items set forth in the Dispute Notice) and the final calculation of Closing Working Capital, the Accounting Firm Closing Cash, Closing Indebtedness and/or Closing Company Transaction Expenses shall be deemed to be acting as an expert and not as an arbiter and based solely on the proceeding before the Accounting Firm shall be an expert determination under the law governing expert determination. None resolution of Sellers or Purchaser shall have any ex parte communications with the Accounting Firm without the prior consent of Purchaser or Sellers, as the case may besuch disputed items. The Accounting Firm Arbitrator shall review such submissions and base its determination solely on the submissions made such submissions. The Accounting Arbitrator shall be bound by Sellers and Purchaser, the terms of this Agreement and apply only the Accounting Principles. In resolving any disputed item submitted to the Accounting Firm, the Accounting Firm Principles and may not assign a value to any item greater than the greatest maximum value claimed for such item claimed by either Purchaser or Sellers Party or less than the smallest minimum value claimed for such item claimed by either Purchaser or Sellers and such resolution Party. The decision of the Accounting Arbitrator shall be in accordance with deemed final and binding upon the Parties and enforceable by any court of competent jurisdiction and the Accounting Principles and otherwise in accordance with this Section 3.2.
(iii) In Arbitrator’s final calculation of Closing Working Capital shall be deemed the event Purchaser and Sellers submit any unresolved objections to “Final Working Capital,” the Accounting Firm for resolution as provided in Section 3.2(b)(i), Arbitrator’s final calculation of Closing Cash shall be deemed the cost “Final Cash,” the Accounting Arbitrator’s final calculation of any dispute resolution (including Closing Indebtedness shall be deemed the “Final Indebtedness” and/or the Accounting Arbitrator’s final calculation of Closing Company Transaction Expenses shall be deemed the “Final Company Transaction Expenses”. The fees and expenses of the Accounting Firm Arbitrator shall be allocated to be paid by Purchaser, on the one hand, and reasonable attorney fees and expenses Seller Parent, on behalf of Sellers, on the other hand, based upon the percentage that the portion of the Parties) shall be borne contested amount not awarded to each Party bears to the amount actually contested by Purchaser and Sellers in inverse proportion such Party, as they may prevail on matters resolved by the Accounting Firm, which proportionate allocations also shall be determined by the Accounting Firm at the time the determination of the Accounting Firm is rendered on the merits of the matters submittedArbitrator.
(iv) For purposes of complying with this Section 3.2, Purchaser and Sellers shall provide each other and the other’s auditors reasonable access during normal business hours to the personnel, properties, contracts, books and records relating to the Business, the Acquired Assets and the Assumed Liabilities in connection with the preparation of the Closing Statement and the resolution of any disputed amounts under the Closing Statement.
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Disputed Final Adjustment. (i) The Closing Statement shall become final and binding upon No later than thirty (30) days following the Parties on the thirtieth (30th) day following delivery thereof, unless Sellers deliver written notice to Purchaser prior to such date of its disagreement with preparation or content by Buyer of the Closing Statement, including any disagreement with any balances the Seller shall notify Buyer in writing whether it accepts or other amounts reflected in disputes the Closing Data Tape (a “Notice accuracy of Disagreement”)the calculation of Actual Working Capital, Actual Cash, Actual Indebtedness and Actual Transaction Expenses. During such thirty (30)-day period, Sellers and their designated auditor shall be permitted to reasonable access during normal business hours the working papers of Purchaser relating to the Closing Statement and the Closing Data Tape and to Purchaser’s auditor and representatives who prepared the Closing Statement and the Closing Data Tape. A Notice of Disagreement must describe in reasonable detail the items contained in the Closing Statement that Sellers dispute and the basis for any such disputes. During the thirty (30)-day period following the delivery of a Notice of Disagreement, Sellers and Purchaser shall seek in good faith to resolve in writing any differences that they may have with respect to the matters specified in the Notice of Disagreement and seek to agree on a final determination of the Closing Net Funds Employed, the Foreign Cash Amount and the Prepaids Amount. At the end of such thirty (30) day period, the Seller and its agents shall be provided with such access to the financial books and records of the Company as well as any relevant work papers of the Company Group as the Seller may reasonably request to enable it to evaluate the calculations of Actual Working Capital, Actual Cash, Actual Indebtedness and Actual Transaction Expenses prepared by Buyer. If the Seller accepts the calculation of Actual Working Capital, Actual Cash, Actual Indebtedness and Actual Transaction Expenses determined pursuant to Section 2.3(b), or if no agreement on the Closing Net Funds EmployedSeller fails within such thirty (30) day period to notify Buyer of any dispute with respect thereto, then the calculation of Actual Working Capital determined pursuant to Section 2.3(b) shall be the “Final Working Capital,” the calculation of Actual Cash determined pursuant to Section 2.3(b) shall be the “Final Cash,” the calculation of Actual Indebtedness determined pursuant to Section 2.3(b) shall be the “Final Indebtedness,” and the calculation of Actual Transaction Expenses determined pursuant to Section 2.3(b) shall be the “Final Transaction Expenses,” which, in each case, shall be deemed final and conclusive and binding upon all Parties in all respects.
(ii) If the Seller disputes the accuracy of the calculation of Actual Working Capital, Actual Cash, Actual Indebtedness or Actual Transaction Expenses, the Foreign Cash Amount and the Prepaids Amount has been reached, Sellers and Purchaser Seller shall engage a nationally recognized independent accounting firm (the “Accounting Firm”) for arbitration of any and all matters that remain in dispute and were properly included in the Notice of Disagreement. The Accounting Firm shall be Xxxxx Xxxxxxxx LLP or, if such firm is unable or unwilling provide written notice to act, such other nationally recognized independent public accounting firm as shall be agreed upon by the Parties in writing. As promptly as practicable after the engagement of the Accounting Firm, Sellers shall submit any unresolved elements set forth in the Notice of Disagreement to the Accounting Firm in writing (with a copy to Purchaser), supported by any documents and arguments upon which they rely. As promptly as practicable thereafter, Purchaser shall submit its response to the Accounting Firm (with a copy to Sellers) supported by any documents and arguments upon which it relies. The Parties shall instruct the Accounting Firm to render its reasoned written decision with respect to each disagreement asserted in accordance with this Section 3.2(b)(i) as promptly as practicable but in Buyer no event later than thirty (30) days after submission following the delivery by Buyer to the Seller of all matters the calculation of Actual Working Capital, Actual Cash, Actual Indebtedness and Actual Transaction Expenses (the “Dispute Notice”), setting forth in disputereasonable detail those items that the Seller disputes (each such item, an “Item of Dispute”). Judgment may be entered upon During the thirty (30) day period following delivery of the Dispute Notice, Buyer and the Seller shall negotiate in good faith with a view to resolving their disagreements over each Item of Dispute. During such thirty (30) day period and until the final determination of the Accounting Firm Actual Working Capital, Actual Cash, Actual Indebtedness and/or Actual Transaction Expenses in any court having jurisdiction over the Party against which such determination is to be enforced.
(iiaccordance with this Section 2.3(c)(ii) Notwithstanding any provisions hereof to the contrary, the Accounting Firm shall be deemed to be acting as an expert and not as an arbiter and the proceeding before the Accounting Firm shall be an expert determination under the law governing expert determination. None of Sellers or Purchaser shall have any ex parte communications with the Accounting Firm without the prior consent of Purchaser or SellersSection 2.3(c)(iii), as the case may be. The Accounting Firm shall review such submissions and base its determination solely on the submissions made by Sellers and Purchaserbe (as so determined, the terms of this Agreement and the Accounting Principles. In resolving any disputed item submitted to the Accounting Firm, the Accounting Firm may not assign a value to any item greater than the greatest value claimed for such item by either Purchaser or Sellers or less than the smallest value claimed for such item by either Purchaser or Sellers and such resolution shall be in accordance with the Accounting Principles and otherwise in accordance with this Section 3.2.
(iii) In the event Purchaser and Sellers submit any unresolved objections to the Accounting Firm for resolution as provided in Section 3.2(b)(i), the cost of any dispute resolution (including the fees and expenses of the Accounting Firm and reasonable attorney fees and expenses of the Parties) shall be borne by Purchaser and Sellers in inverse proportion as they may prevail on matters resolved by the Accounting Firm, which proportionate allocations also shall be determined by the Accounting Firm at the time the determination of the Accounting Firm is rendered on the merits of the matters submitted.
(iv) For purposes of complying with this Section 3.2, Purchaser and Sellers shall provide each other and the other’s auditors reasonable access during normal business hours to the personnel, properties, contracts, books and records relating to the Business, the Acquired Assets and the Assumed Liabilities in connection with the preparation of the Closing Statement and the resolution of any disputed amounts under the Closing Statement.pursuant to
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Disputed Final Adjustment. (i) The Closing Statement shall become final and binding upon the Parties on the thirtieth (30th) day following delivery thereof, unless Sellers deliver written notice to Purchaser prior to such date of its disagreement with preparation or content of the Closing Statement, including any disagreement with any balances or other amounts reflected in the Closing Data Tape (a “Notice of Disagreement”). During such No later than thirty (30)-day period, Sellers and their designated auditor shall be permitted to reasonable access during normal business hours the working papers of Purchaser relating to the Closing Statement and the Closing Data Tape and to Purchaser’s auditor and representatives who prepared the Closing Statement and the Closing Data Tape. A Notice of Disagreement must describe in reasonable detail the items contained in the Closing Statement that Sellers dispute and the basis for any such disputes. During the thirty (30)-day period 30) days following the delivery by Purchaser of a Notice the calculation of DisagreementActual Working Capital, Sellers Actual Cash, Actual Indebtedness and Actual Company Transaction Expenses, the Sellers’ Representative shall notify Purchaser shall seek in good faith to resolve in writing any differences that they may have with respect to whether it accepts or disputes the matters specified in the Notice of Disagreement and seek to agree on a final determination accuracy of the Closing Net Funds Employedcalculation of Actual Working Capital, the Foreign Cash Amount Actual Cash, Actual Indebtedness and the Prepaids AmountActual Company Transaction Expenses. At the end of During such thirty (30) day period, the Sellers’ Representative and its agents shall be provided with such access to the financial books and records of the Purchaser and the Company Group as well as any relevant work papers as it may reasonably request to enable it to evaluate the Actual Working Capital, Actual Cash, Actual Indebtedness and Actual Company Transaction Expenses. If the Sellers’ Representative accepts the calculation of Actual Working Capital, Actual Cash, Actual Indebtedness and Actual Company Transaction Expenses determined pursuant to Section 2.10(b), or if no agreement on the Closing Net Funds EmployedSellers’ Representative fails within such thirty (30) day period to notify Purchaser of any dispute with respect thereto, then the calculation of Actual Working Capital determined pursuant to Section 2.10(b) shall be the “Final Working Capital,” the calculation of Actual Cash determined pursuant to Section 2.10(b) shall be the “Final Cash,” the calculation of Actual Indebtedness determined pursuant to Section 2.10(b) shall be the “Final Indebtedness,” and the calculation of Actual Company Transaction Expenses determined pursuant to Section 2.10(b) shall be the “Final Company Transaction Expenses” which, in each case, shall be deemed final and conclusive and binding.
(ii) If the Sellers’ Representative disputes the accuracy of the calculation of Actual Working Capital, Actual Cash, Actual Indebtedness or Actual Company Transaction Expenses, the Foreign Cash Amount and the Prepaids Amount has been reached, Sellers and Sellers’ Representative shall provide written notice to Purchaser shall engage a nationally recognized independent accounting firm (the “Accounting Firm”) for arbitration of any and all matters that remain in dispute and were properly included in the Notice of Disagreement. The Accounting Firm shall be Xxxxx Xxxxxxxx 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 the Parties in writing. As promptly as practicable after the engagement of the Accounting Firm, Sellers shall submit any unresolved elements set forth in the Notice of Disagreement to the Accounting Firm in writing (with a copy to Purchaser), supported by any documents and arguments upon which they rely. As promptly as practicable thereafter, Purchaser shall submit its response to the Accounting Firm (with a copy to Sellers) supported by any documents and arguments upon which it relies. The Parties shall instruct the Accounting Firm to render its reasoned written decision with respect to each disagreement asserted in accordance with this Section 3.2(b)(i) as promptly as practicable but in no event later than thirty (30) days after submission following the delivery by Purchaser to the Sellers’ Representative of all matters the calculation of Actual Working Capital, Actual Cash, Actual Indebtedness and Actual Company Transaction Expenses (the “Dispute Notice”), setting forth those items that the Sellers’ Representative disputes. During the thirty (30) day period following delivery of a Dispute Notice, Purchaser and the Sellers’ Representative shall negotiate in disputegood faith with a view to resolving their disagreements over the disputed items. Judgment may be entered upon During such thirty (30) day period and until the final determination of the Accounting Firm Actual Working Capital, Actual Cash, Actual Indebtedness and/or Actual Company Transaction Expenses in any court having jurisdiction over the Party against which such determination is to be enforced.
(iiaccordance with this Section 2.10(c)(ii) Notwithstanding any provisions hereof to the contrary, the Accounting Firm shall be deemed to be acting as an expert and not as an arbiter and the proceeding before the Accounting Firm shall be an expert determination under the law governing expert determination. None of Sellers or Purchaser shall have any ex parte communications with the Accounting Firm without the prior consent of Purchaser or SellersSection 2.10(c)(iii), as the case may be. The Accounting Firm shall review such submissions , (as so determined, or as determined pursuant to Section 2.10(c)(i) above, “Final Working Capital,” “Final Cash,” “Final Indebtedness” and base its determination solely on the submissions made by Sellers and Purchaser“Final Company Transaction Expenses,” respectively), the terms Sellers’ Representative and its agents shall be provided with such access to the financial books and records of this Agreement the Purchaser and the Accounting PrinciplesCompany Group as it may reasonably request. In resolving any If the parties resolve their differences over the disputed item submitted to the Accounting Firm, the Accounting Firm may not assign a value to any item greater than the greatest value claimed for such item by either Purchaser or Sellers or less than the smallest value claimed for such item by either Purchaser or Sellers and such resolution shall be items in accordance with the foregoing procedure, Final Working Capital, Final Cash, Final Indebtedness and Final Company Transaction Expenses shall be the amounts agreed upon by them. If the parties fail to resolve their differences over the disputed items within such thirty (30) day period, then Purchaser and the Sellers’ Representative shall forthwith jointly request that an independent national accounting firm, to be mutually agreed to at the time (the “Accounting Principles and otherwise Arbitrator”) make a binding determination as to the disputed items in accordance with this Section 3.2Agreement.
(iii) In the event Purchaser and Sellers submit any unresolved objections to the Accounting Firm for resolution as provided in Section 3.2(b)(i), the cost of any dispute resolution (including the fees and expenses of the Accounting Firm and reasonable attorney fees and expenses of the Parties) shall be borne by Purchaser and Sellers in inverse proportion as they may prevail on matters resolved by the Accounting Firm, which proportionate allocations also shall be determined by the Accounting Firm at the time the determination of the Accounting Firm is rendered on the merits of the matters submitted.
(iv) For purposes of complying with this Section 3.2, Purchaser and Sellers shall provide each other and the other’s auditors reasonable access during normal business hours to the personnel, properties, contracts, books and records relating to the Business, the Acquired Assets and the Assumed Liabilities in connection with the preparation of the Closing Statement and the resolution of any disputed amounts under the Closing Statement.
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