Final Determination of Purchase Price. The final Purchase Price shall be calculated and paid in the manner set forth in this Section 3.5 upon completion of the Inventory count. At Buyer’s option, Seller shall ship all Inventory, as Buyer’s sole cost and expense, to Buyer’s warehouse in Fox Lake, Wisconsin or continue to hold the Inventory in accordance with the terms and conditions of the Warehousing Agreement. Buyer shall have thirty (30) days to count the Inventory, and shall advise Seller of any discrepancy in the physical count of the Inventory shipped to Buyer or any dispute as to the valuation of the Inventory as shown on the Inventory Report, setting forth in reasonable specificity the reason for the objection (each an “Objection,” or collectively, the “Objections”). Thereafter, Buyer and Seller shall endeavor in good faith, for a period not to exceed twenty one (21) days from the date of delivery of such notice, to resolve the Objections. If Buyer fails to submit a written Objection within forty-five (45) days following the Closing, the value of the Inventory as set forth in such Inventory Report shall be deemed final and binding. If at the end of the 21-day period there are any unresolved Objections, Seller and Buyer shall submit the calculation and resolution of such unresolved Objections to Xxxxx Xxxxx Xxxxxxx Xxxxxx, LLP or another independent public accounting firm of recognized national standing that they agree upon in writing. If Buyer and Seller have not agreed on an independent public accounting firm by the end of the 21-day period referred to above, such firm shall be selected by lot from those independent public accounting firms of recognized national standing in the United States that are willing to act (the independent public accounting firm selected pursuant to the foregoing procedures, the “CPA Firm”). The CPA Firm shall be instructed to resolve the Objections and such resolution shall be (i) set forth in writing and signed by the CPA Firm, (ii) delivered to Buyer and Seller as soon as practicable after the Objections are submitted to the CPA Firm but not later than the 30th day after such submission, (iii) made in accordance with this Agreement, and (iv) conclusive and binding on the Parties on the date of delivery of such resolution. The CPA Firm shall only be authorized on any one issue to decide in favor of and choose the position of either of the Parties or to decide upon a compromise position between the ranges presented by the Parties to the CPA Firm. The CPA Firm shall base its decision solely upon the presentations of the Parties to the CPA Firm at a hearing held before the CPA Firm and upon any materials made available by either Party and not upon independent review. If the foregoing procedure does not result in the selection of an CPA Firm or if the CPA Firm does not or is unwilling to resolve all of the Objections on or before the expiration of 30 days from the date of submission of the Objections, either Party shall be entitled to institute a lawsuit before a court of competent jurisdiction. The fees, costs and expenses of the CPA Firm shall be shared equally by Seller and Buyer. Seller and Buyer shall each be solely responsible for the fees and disbursements of their respective attorneys, accountants and advisors To the extent that any item is taken into account in adjusting the Purchase Price downward in accordance with Section 3.1, it shall not form the basis for a claim for breach of any representation or warranty under this Agreement to the extent of such adjustment. To the extent that (a) the estimated value of the Inventory determined under Section 3.4, is less than (b) the value of the Inventory as finally determined under this Section 3.5, the difference shall be paid by Buyer to Seller within ten (10) days after such final determination. To the extent that (x) the estimated value of the Inventory determined under Section 3.4, is more than (y) the value of the Inventory as finally determined under this Section 3.5, then at Buyer’s option, the difference shall be paid by Seller to Buyer within ten (10) days after such final determination, or the difference shall be deducted by Buyer from payments due from Buyer to Seller pursuant to Section 3.2, or from outstanding payments due from Buyer to Seller, if any, pursuant to Section 3.6.
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Samples: Asset Purchase Agreement (Cycle Country Accessories Corp)
Final Determination of Purchase Price. The (a) Within 60 days after the Closing, Buyer shall prepare and deliver to Stockholders’ Representative a final Purchase Price shall be calculated and paid in unaudited consolidated balance sheet for the manner set forth in this Section 3.5 upon completion Company as of the Inventory count. At Buyer’s option, Seller shall ship all Inventory, as Buyer’s sole cost and expense, to Buyer’s warehouse in Fox Lake, Wisconsin or continue to hold the Inventory Closing Date prepared in accordance with the terms and conditions Accounting Procedures (the “Closing Balance Sheet”). The Closing Balance Sheet shall be accompanied by Buyer’s certificate (the “Purchase Price Adjustment Certificate”) setting forth Buyer’s reasonably detailed calculations, derived from the Closing Balance Sheet, of the Warehousing AgreementBase Purchase Price and each component of adjustments to the Base Purchase Price in accordance with Section 2.5(b), and the differences, if any, between such calculations and the Estimated Purchase Price. Stockholders’ Representative may dispute amounts reflected on the Closing Balance Sheet and the calculations set forth on the Purchase Price Adjustment Certificate by notifying Buyer in writing on or before the 30th day following Stockholders’ Representative’s receipt thereof, which notice shall have thirty (30) days to count specify each item in dispute and the Inventoryamount thereof, and shall advise Seller set forth in reasonable detail the basis for each such dispute. In the event Stockholders’ Representative so notifies Buyer of any discrepancy such dispute, Stockholders’ Representative and Buyer shall work together in good faith to resolve such dispute. In the physical count event Buyer and Stockholders’ Representative are unable to resolve such dispute within 30 days following Stockholders’ Representative notifying Buyer of a dispute, Buyer or Stockholders’ Representative shall submit a list of the Inventory shipped disputed amounts and any related issues to the other and to Xxxxx Xxxxxxxx LLP (who will serve as experts and not as arbitrators on the disputes submitted for resolution) (the “Accountants”) for resolution. Buyer or any dispute and Stockholders’ Representative shall request that the disputed issues be resolved as promptly as possible by the Accountants. The decision of the Accountants shall be final and binding as to the valuation matter(s) submitted to the Accountants for resolution. The costs of the Inventory Accountants shall be borne by and apportioned among Buyer and the Stockholders, severally (in accordance with their respective Pro Rata Shares), as shown on determined by the Inventory Report, setting forth in reasonable specificity Accountants based upon the reason for Accountants’ determination of the objection (each an “Objection,” or collectivelyrelative merits of the parties claims giving rise to any dispute. The Closing Balance Sheet, the “Objections”). Thereafter, Buyer Purchase Price Adjustment Certificate and Seller shall endeavor in good faith, for a period not to exceed twenty one (21) days from the date of delivery of such notice, to resolve the Objections. If Buyer fails to submit a written Objection within forty-five (45) days following the Closing, the value calculation of the Inventory as set forth adjustments to the Base Purchase Price in such Inventory Report accordance with Section 2.5(b) shall be deemed final and binding. If at for all purposes hereof upon the end earliest to occur of the 21-day period there are any unresolved Objections, Seller and Buyer shall submit the calculation and resolution of such unresolved Objections to Xxxxx Xxxxx Xxxxxxx Xxxxxx, LLP or another independent public accounting firm of recognized national standing that they agree upon in writing. If Buyer and Seller have not agreed on an independent public accounting firm by the end of the 21-day period referred to above, such firm shall be selected by lot from those independent public accounting firms of recognized national standing in the United States that are willing to act (the independent public accounting firm selected pursuant to the foregoing procedures, the “CPA Firm”). The CPA Firm shall be instructed to resolve the Objections and such resolution shall be (i) receipt by Buyer of a written notice from Stockholders’ Representative stating that Stockholders’ Representative agrees with Buyer’s calculations set forth in writing and signed by the CPA Firmthereon, (ii) delivered the failure by Stockholders’ Representative to notify Buyer and Seller as soon as practicable after the Objections are submitted to the CPA Firm but not later than the 30th day after such submission, (iii) made of a dispute with respect thereto in accordance with this Agreement, Section 2.7(a) within 30 days of Stockholders’ Representative’s receipt from Buyer of the Closing Balance Sheet and Purchase Price Adjustment Certificate and (iviii) conclusive the resolution of all disputes arising in accordance with this Section 2.7(a) either by Buyer and binding on Stockholders’ Representative or the Parties on Accountants, in which case the date of delivery of such resolution. The CPA Firm shall only be authorized on any one issue to decide in favor of and choose the position of either of the Parties or to decide upon a compromise position between the ranges presented by the Parties to the CPA Firm. The CPA Firm shall base its decision solely upon the presentations of the Parties to the CPA Firm at a hearing held before the CPA Firm and upon any materials made available by either Party and not upon independent review. If the foregoing procedure does not result in the selection of an CPA Firm or if the CPA Firm does not or is unwilling to resolve all of the Objections on or before the expiration of 30 days from the date of submission of the ObjectionsClosing Balance Sheet, either Party shall be entitled to institute a lawsuit before a court of competent jurisdiction. The fees, costs and expenses of the CPA Firm shall be shared equally by Seller and Buyer. Seller and Buyer shall each be solely responsible for the fees and disbursements of their respective attorneys, accountants and advisors To the extent that any item is taken into account in adjusting the Purchase Price downward Adjustment Certificate and the calculation of the adjustments to the Base Purchase Price in accordance with Section 3.12.5(b) shall be that determined in accordance with such resolution of all such disputes (the Base Purchase Price, it shall not form the basis for a claim for breach of any representation or warranty under this Agreement to the extent of such adjustment. To the extent that (aas adjusted in accordance with Section 2.5(b) the estimated value of the Inventory determined under Section 3.4, is less than (b) the value of the Inventory and as finally determined under agreed to by Buyer and Stockholders’ Representative, or as otherwise determined, in accordance with the provisions of this Section 3.5, 2.7(a) is referred to as the difference shall be paid by Buyer to Seller within ten (10) days after such final determination. To the extent that (x) the estimated value of the Inventory determined under Section 3.4, is more than (y) the value of the Inventory as finally determined under this Section 3.5, then at Buyer’s option, the difference shall be paid by Seller to Buyer within ten (10) days after such final determination, or the difference shall be deducted by Buyer from payments due from Buyer to Seller pursuant to Section 3.2, or from outstanding payments due from Buyer to Seller, if any, pursuant to Section 3.6“Final Purchase Price”).
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Final Determination of Purchase Price. The final Purchase Price shall be calculated (a) As promptly as practicable, and paid in any event not later than 60 days following the manner set forth in this Section 3.5 upon completion of the Inventory count. At Closing Date, Buyer’s option, Seller shall ship all Inventory, as Buyer’s sole cost and at its expense, shall cause Buyer's Accountants to Buyer’s warehouse in Fox Lakedeliver to Sellers a statement (the "Post-Closing Statement"), Wisconsin or continue to hold the Inventory prepared in accordance with GAAP consistently applied with the terms principles, methodologies and conditions of assumptions used to prepare the Warehousing Agreement. Buyer shall have thirty (30) days to count the Inventory, and shall advise Seller of any discrepancy in the physical count of the Inventory shipped to Buyer or any dispute as to the valuation of the Inventory as shown on the Inventory ReportBalance Sheet, setting forth in reasonable specificity their good faith calculation of (i) the reason for Company's Indebtedness as of immediately prior to the objection Closing Date (each an “Objection,” or collectivelythe "Actual Company Indebtedness"), (ii) the Company Unpaid Transaction Expenses (the "Actual Company Unpaid Transaction Expenses"), (iii) the Working Capital as of the opening of business on the Closing Date (the "Actual Working Capital" and, together with the Actual Company Indebtedness and the Actual Company Unpaid Transaction Expenses, the “Objections”"Post-Closing Statement Components"). Thereafter, Buyer and Seller shall endeavor in good faith, for a period not to exceed twenty one (21iv) days from the date of delivery of such notice, to resolve the Objections. If Buyer fails to submit a written Objection within forty-five (45) days following the Closing, the value Estimated Tax Adjustment as of the Inventory opening of business on the Closing Date (such adjustment to be calculated in a manner consistent with the Estimated Tax Adjustment) (the "Actual Tax Adjustment") and (v) Buyer's determination of the Purchase Price Calculation based on the Post-Closing Statement Components as set forth in such Inventory Report the Post-Closing Statement. The Post-Closing Statement shall be deemed final accompanied by the worksheets and binding. If at the end data that support Buyer's calculation of the 21-Actual Company Indebtedness, the Actual Company Unpaid Transaction Expenses, the Actual Working Capital, the Actual Tax Adjustment and the resulting Buyer's determination of the Purchase Price Calculation. Upon reasonable notice during normal business hours, at any time and from time to time, Sellers and the Company's Accountants shall be provided reasonable access to the pertinent accounting books and records, work papers and the accounting personnel of Buyer's Accountants and Buyer, and Buyer and Buyer's Accountants shall have reasonable access to the pertinent accounting books and records, work papers and the accounting personnel of the Sellers and the Company's Accountants, during such 60 day period there are any unresolved Objections, Seller and Buyer shall submit thereafter until the calculation and resolution of such unresolved Objections to Xxxxx Xxxxx Xxxxxxx Xxxxxx, LLP or another independent public accounting firm of recognized national standing that they agree upon Final Purchase Price (as defined in writing. If Buyer and Seller have not agreed on an independent public accounting firm by the end of the 21-day period referred to above, such firm shall be selected by lot from those independent public accounting firms of recognized national standing in the United States that are willing to act (the independent public accounting firm selected pursuant to the foregoing procedures, the “CPA Firm”). The CPA Firm shall be instructed to resolve the Objections and such resolution shall be (iSection 2.3(c) set forth in writing and signed by the CPA Firm, (iibelow) delivered to Buyer and Seller as soon as practicable after the Objections are submitted to the CPA Firm but not later than the 30th day after such submission, (iii) made has been finally determined in accordance with this Agreement, and (iv) conclusive and binding on the Parties on the date of delivery of such resolution. The CPA Firm shall only be authorized on any one issue to decide in favor of and choose the position of either of the Parties or to decide upon a compromise position between the ranges presented by the Parties to the CPA Firm. The CPA Firm shall base its decision solely upon the presentations of the Parties to the CPA Firm at a hearing held before the CPA Firm and upon any materials made available by either Party and not upon independent review. If the foregoing procedure does not result in the selection of an CPA Firm or if the CPA Firm does not or is unwilling to resolve all of the Objections on or before the expiration of 30 days from the date of submission of the Objections, either Party shall be entitled to institute a lawsuit before a court of competent jurisdiction. The fees, costs and expenses of the CPA Firm shall be shared equally by Seller and Buyer. Seller and Buyer shall each be solely responsible for the fees and disbursements of their respective attorneys, accountants and advisors To the extent that any item is taken into account in adjusting the Purchase Price downward in accordance with Section 3.1, it shall not form the basis for a claim for breach of any representation or warranty under this Agreement to the extent of such adjustment. To the extent that (a) the estimated value of the Inventory determined under Section 3.4, is less than (b) the value of the Inventory as finally determined under this Section 3.5, the difference shall be paid by Buyer to Seller within ten (10) days after such final determination. To the extent that (x) the estimated value of the Inventory determined under Section 3.4, is more than (y) the value of the Inventory as finally determined under this Section 3.5, then at Buyer’s option, the difference shall be paid by Seller to Buyer within ten (10) days after such final determination, or the difference shall be deducted by Buyer from payments due from Buyer to Seller pursuant to Section 3.2, or from outstanding payments due from Buyer to Seller, if any, pursuant to Section 3.62.3.
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Final Determination of Purchase Price. The final Purchase Price shall be calculated and paid in the manner set forth in this Section 3.5 upon completion of the Inventory count. At Buyer’s option, Seller shall ship all Inventory, as Buyer’s sole cost and expense, to Buyer’s warehouse in Fox Lake, Wisconsin or continue to hold the Inventory in accordance with the terms and conditions of the Warehousing Agreement. Buyer shall have thirty (30a) days to count the Inventory, and shall advise Seller of any discrepancy in the physical count of the Inventory shipped to Buyer or any dispute as to the valuation of the Inventory as shown on the Inventory Report, setting forth in reasonable specificity the reason for the objection (each an “Objection,” or collectively, the “Objections”). Thereafter, Buyer and Seller shall endeavor in good faith, for a period not to exceed twenty one (21) days from the date of delivery of such notice, to resolve the Objections. If Buyer fails to submit a written Objection within forty-five (45) Within 45 days following the Closing, Parent shall prepare and deliver to Holders’ Representative a final unaudited consolidated balance sheet for the value Company as of the Inventory Closing Date prepared in accordance with GAAP on a basis consistent with past practice (the “Closing Balance Sheet”). The Closing Balance Sheet shall be accompanied by Parent’s certificate (the “Purchase Price Adjustment Certificate”) setting forth Parent’s detailed calculations, derived from the Closing Balance Sheet, of the Base Purchase Price as adjusted in accordance with Section 2.4(b) and the differences, if any, between such calculations and the Estimated Purchase Price. Holders’ Representative may dispute amounts reflected on the Closing Balance Sheet and the calculations set forth on the Purchase Price Adjustment Certificate by notifying Parent in writing on or before the 30th day following its receipt thereof, which notice shall specify each item in dispute and the amount thereof, and shall set forth in reasonable detail the basis for each such dispute. In the event Holders’ Representative so notifies Parent of any such dispute, Holders’ Representative and Parent shall work together in good faith to resolve such dispute. In the event Parent and Holders’ Representative are unable to resolve such dispute within 30 days following Holders’ Representative notifying Parent of a dispute, Parent or Holders’ Representative shall submit a list of the disputed amounts and any related issues to the Company’s auditors at Ernst and Young LLP (who will serve as experts and not as arbitrators on the disputes submitted for resolution) (the “Accountants”) for resolution. Parent and the Holders’ Representative shall cause the Accountants to agree to resolve the disputed issues as promptly as possible, and in no event later than 30 days following submission to the Accountants. The decision of the Accountants shall be final and binding as to the matter(s) submitted to the Accountants for resolution. The costs of the Accountants shall be borne by the party (either Parent or the Holders) whose determination of the disputed issues was farthest from the determination made by the Accountants, or equally by Parent and the Holders if the determination by the Accountants is equidistant between the determinations of the parties. The Closing Balance Sheet, the Purchase Price Adjustment Certificate and the calculation of the adjustments to the Base Purchase Price in accordance with Section 2.4(b) shall be deemed final for all purposes hereof upon the earliest to occur of (i) the failure by Holders’ Representative to notify Parent of a dispute with respect thereto in accordance with this Section 2.6(a) within 30 days of the receipt by Holders’ Representative of the Closing Balance Sheet and Purchase Price Adjustment Certificate and (ii) the resolution of all disputes arising in accordance with this Section 2.6(a) either by Parent and Holders’ Representative or the Accountants, in which case the Closing Balance Sheet, the Purchase Price Adjustment Certificate and the calculation of the adjustments to the Base Purchase Price in accordance with Section 2.4(b) shall be as determined in accordance with such resolution of all such disputes (the Base Purchase Price, as adjusted in accordance with Section 2.4(b) as set forth in such Inventory Report shall be deemed final the Purchase Price Adjustment Certificate and binding. If at the end of the 21-day period there are any unresolved Objections, Seller and Buyer shall submit the calculation and resolution of such unresolved Objections to Xxxxx Xxxxx Xxxxxxx Xxxxxx, LLP or another independent public accounting firm of recognized national standing that they agree upon in writing. If Buyer and Seller have not agreed on an independent public accounting firm by the end of the 21-day period referred to above, such firm shall be selected by lot from those independent public accounting firms of recognized national standing in the United States that are willing to act (the independent public accounting firm selected pursuant to the foregoing procedures, the “CPA Firm”). The CPA Firm shall be instructed to resolve the Objections and such resolution shall be (i) set forth in writing and signed by the CPA Firm, (ii) delivered to Buyer and Seller as soon as practicable after the Objections are submitted to the CPA Firm but not later than the 30th day after such submission, (iii) made in accordance with this Agreement, and (iv) conclusive and binding on the Parties on the date of delivery of such resolution. The CPA Firm shall only be authorized on any one issue to decide in favor of and choose the position of either of the Parties or to decide upon a compromise position between the ranges presented by the Parties to the CPA Firm. The CPA Firm shall base its decision solely upon the presentations of the Parties to the CPA Firm at a hearing held before the CPA Firm and upon any materials made available by either Party and not upon independent review. If the foregoing procedure does not result in the selection of an CPA Firm or if the CPA Firm does not or is unwilling to resolve all of the Objections on or before the expiration of 30 days from the date of submission of the Objections, either Party shall be entitled to institute a lawsuit before a court of competent jurisdiction. The fees, costs and expenses of the CPA Firm shall be shared equally by Seller and Buyer. Seller and Buyer shall each be solely responsible for the fees and disbursements of their respective attorneys, accountants and advisors To the extent that any item is taken into account in adjusting the Purchase Price downward in accordance with Section 3.1, it shall not form the basis for a claim for breach resolution of any representation or warranty under this Agreement to the extent of such adjustment. To the extent that (a) the estimated value of the Inventory determined under Section 3.4, is less than (b) the value of the Inventory as finally determined disputes arising with respect thereto under this Section 3.5, 2.6(a) is referred to as the difference shall be paid by Buyer to Seller within ten (10) days after such final determination. To the extent that (x) the estimated value of the Inventory determined under Section 3.4, is more than (y) the value of the Inventory as finally determined under this Section 3.5, then at Buyer’s option, the difference shall be paid by Seller to Buyer within ten (10) days after such final determination, or the difference shall be deducted by Buyer from payments due from Buyer to Seller pursuant to Section 3.2, or from outstanding payments due from Buyer to Seller, if any, pursuant to Section 3.6“Final Purchase Price”).
Appears in 1 contract
Final Determination of Purchase Price. As soon as practicable following the Closing Date but in any event not more than 90 days after the Closing Date, Buyer or its representative shall prepare a balance sheet of the Company, dated the Closing Date (the "Closing Balance Sheet"), and statements of income and retained earnings covering the period from July 1, 1999 to the Closing Date (the "Closing Date Financial Statements"). The final Closing Date Financial Statements shall be prepared in conformity with GAAP. Based upon the Closing Date Financial Statements, Buyer shall prepare a statement (the "Purchase Price shall be calculated and paid in Statement") setting forth the manner set forth in this Section 3.5 upon completion calculation of the Inventory count. At Buyer’s optionPurchase Price and the Deferred Purchase Price and deliver the Purchase Price Statement to Willxxx X. Xxxxxxx, Seller shall ship all Inventory, xx his capacity as Buyer’s sole cost representative of each of and expense, to Buyer’s warehouse in Fox Lake, Wisconsin or continue to hold for the Inventory in accordance with the terms and conditions accounts of the Warehousing Agreement. Buyer shall have thirty Shareholders (30) days to count the Inventory, and shall advise Seller of any discrepancy in the physical count of the Inventory shipped to Buyer or any dispute as to the valuation of the Inventory as shown on the Inventory Report, setting forth in reasonable specificity the reason for the objection (each an “Objection,” or collectively, the “Objections”"Shareholders' Agent"). Thereafter, Buyer and Seller shall endeavor in good faith, for a period not to exceed twenty one Shareholders' Agent will then have fifteen (2115) business days from the date of delivery receipt of such notice, the Purchase Price Statement to resolve object to any items or calculations on the ObjectionsPurchase Price Statement. If Buyer fails Shareholders' Agent does not object to submit a written Objection the Purchase Price Statement within fortysuch 15-five (45) days following the Closingday period, the value of the Inventory as set forth in such Inventory Report Purchase Price Statement shall be deemed final and binding. If at conclusive with respect to the end determination of the 21-day period there are Purchase Price and the Deferred Purchase Price and shall be binding on all parties hereto, including all Shareholders, for such purpose. In the event that Shareholders' Agent objects to any unresolved Objections, Seller item or calculation on the Purchase Price Statement and Buyer shall submit the calculation and resolution of such unresolved Objections to Xxxxx Xxxxx Xxxxxxx Xxxxxx, LLP or another independent public accounting firm of recognized national standing that they agree upon in writing. If Buyer and Seller have objection cannot agreed on an independent public accounting firm be resolved by the end of the 21-day period referred to aboveparties hereto within twenty business days following such objection, such firm objection shall be selected resolved by lot from those independent public accounting firms of recognized national standing in the United States that are willing to act Arthxx Xxxexxxx XXX (the independent public accounting firm selected pursuant to the foregoing procedures"Arbitrating Accountant"), the “CPA Firm”). The CPA Firm who shall be instructed to resolve the Objections and all such resolution shall be (i) set forth in writing and signed by the CPA Firm, (ii) delivered to Buyer and Seller objections as soon as practicable after the Objections are submitted and make any necessary changes or revisions to the CPA Firm but not later than Purchase Price Statement. In resolving such objections, the 30th day after such submission, (iii) made Arbitrating Accountant shall determined whether the Purchase Price Statement was prepared in accordance with this AgreementAgreement and whether the Closing Date Financial Statements upon which the Purchase Price Statement was based were prepared in conformity with GAAP. Within five days of completion, the Arbitrating Accountant shall deliver the Purchase Price Statement to Buyer and (iv) Shareholders' Agent. The Purchase Price Statement as finalized by the Arbitrating Accountant shall be deemed final and conclusive with respect to the determination of the Purchase Price and the Deferred Purchase Price and shall be binding on all the Parties on the date of delivery of parties hereto, including all Shareholders, for such resolutionpurposes. The CPA Firm shall only be authorized on any one issue to decide in favor of and choose the position of either of the Parties or to decide upon a compromise position between the ranges presented by the Parties to the CPA Firm. The CPA Firm shall base its decision solely upon the presentations of the Parties to the CPA Firm at a hearing held before the CPA Firm and upon any materials made available by either Party and not upon independent review. If the foregoing procedure does not result in the selection of an CPA Firm or if the CPA Firm does not or is unwilling to resolve all of the Objections on or before the expiration of 30 days from the date of submission of the Objections, either Party shall be entitled to institute a lawsuit before a court of competent jurisdiction. The fees, costs fees and expenses of the CPA Firm Arbitrating Accountant in resolving all such objections shall be shared equally borne one-half by Seller Buyer, on the one hand, and Buyer. Seller one-half by the Shareholders on the other hand, and Buyer shall each be solely responsible for the fees and disbursements of their respective attorneys, accountants and advisors To the extent that any item is taken into account in adjusting the Purchase Price downward in accordance with Section 3.1, it shall not form the basis for a claim for breach of any representation or warranty under this Agreement to the extent of such adjustment. To the extent that (a) the estimated value of the Inventory determined under Section 3.4, is less than (b) the value of the Inventory as finally determined under this Section 3.5, the difference shall be paid by Buyer to Seller within ten (10) days after such final determination. To the extent that (x) the estimated value of the Inventory determined under Section 3.4, is more than (y) the value of the Inventory as finally determined under this Section 3.5, then at Buyer’s option, the difference shall be paid by Seller to Buyer within ten (10) days after such final determination, or the difference shall one-half may be deducted by Buyer pro rata based on the percentage interests in the Company from payments due from Buyer the Deferred Purchase Price remaining payable to Seller pursuant to Section 3.2, or from outstanding payments due from Buyer to Seller, if any, pursuant to Section 3.6all Shareholders.
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