Objections; Dispute Resolution. (a) If Seller concludes that any matter reported in the Net Tangible Assets Statement, an Annual Earn-Out Certificate, or an Option Shares Purchase Price Certificate is not accurate, Seller shall, within thirty (30) days after its receipt of such certificate (the "Response Period"), deliver to Buyer a written statement (the "Objection Notice"): (i) setting forth in reasonable detail the nature of the objections to each of any discrepancies believed to exist, and (ii) requesting all additional information required by the Seller to perform calculations relating to matters contained in such certificate. If no Objection Notice is given within the Response Period, then the calculations set forth in the Net Tangible Assets Statement, Annual Earn-Out Certificate, or Option Shares Purchase Price Certificate, shall be controlling for all purposes of this Agreement. (b) If an Objection Notice is timely given within the Response Period, Buyer shall provide Seller all requested information included in the Objection Notice within fifteen (15) days; thereafter, the Buyer and the Seller shall use good faith efforts to jointly resolve any properly noticed objections and discrepancies within thirty (30) days of the receipt by Buyer of an Objection Notice, which resolution, if achieved, shall be fully and completely binding upon all Parties to this Agreement and not subject to further review, appeal, or dispute. (c) If Buyer and Seller are unable to resolve the objections and discrepancies to their mutual satisfaction within such thirty (30) day period, then the matter shall be submitted to an accounting firm of international reputation mutually acceptable to Buyer and the Seller (the "Independent Accountants"). In submitting a dispute to the Independent Accountants, each Party shall concurrently furnish, at its own expense, to the Independent Accountants and the other Party such documents and information as the Independent Accountants may request. Each Party may also furnish to the Independent Accountants such other information and documents as it deems relevant, with copies of such submission and all such documents and information being concurrently given to the other Party. Neither Party shall have or conduct any communication, either written or oral, with the Independent Accountants without the other Party either being present or receiving a concurrent copy of any written communication. The Independent Accountants may conduct a conference concerning the objections and disagreements between Buyer and Seller, at which conference each Party shall have the right to (i) present its documents, materials and other evidence (previously provided to the Independent Accountants and the other Party), and (ii) have present its or their advisors, accountants and/or counsel. The Independent Accountants shall promptly (but not to exceed seventy-five (75) days from the date of engagement of the Independent Accountants) render a decision, acting as an expert and not an arbitrator, on the issues presented, and such decision shall be final and binding on all of the Parties to this Agreement. In the event the Independent Accountants require a payment to be made by Buyer to Seller, such payment shall be due and payable within thirty (30) days from the date the decision is rendered ("Independent Accountant Required Payment"). Each of the Parties shall agree to indemnify and hold harmless the Independent Accountants, and to execute whatever documents or agreements are necessary to effectuate the foregoing. (d) Seller and Buyer shall each pay 50% of all costs, fees and expenses to engage the Independent Accountants. (e) In connection with its review of all the matters arising under the Net Tangible Assets Statement, any Annual Earn-Out Certificate, or any Option Shares Purchase Price Certificate, Buyer shall afford Seller and its representatives complete access to the books, records, personnel and facilities of or pertaining to Buyer.
Appears in 2 contracts
Samples: Asset Purchase Agreement (Stonepath Group Inc), Asset Purchase Agreement (Stonepath Group Inc)
Objections; Dispute Resolution. Prior to the expiration of the Review Period, the VE Member Representative (aon behalf of the VE Members) If Seller concludes that any matter reported may object to VI’s determination of the Cumulative Net Revenue Amount (or, in the event of a mathematical error, to the calculations of the Contingent Consideration Amount, the Incremental Net Tangible Assets StatementRevenue Amount or the Pre-Interest Contingent Amount) set forth in the Contingent Consideration Statement or to the amount of detail provided pursuant to paragraph (c) above, an Annual Earn-Out Certificate, or an Option Shares Purchase Price Certificate is not accurate, Seller shall, within thirty (30) days after its receipt of such certificate (the "Response Period"), deliver to Buyer by delivering a written statement notice of objection to VI (the "an “Objection Notice"): (i) setting forth ”). Any Objection Notice shall state in reasonable detail the nature basis for such objection, as well as the amount in dispute. If the VE Member Representative fails to deliver an Objection Notice to VI prior to the expiration of the objections to each of any discrepancies believed to exist, and (ii) requesting all additional information required by the Seller to perform calculations relating to matters contained in such certificate. If no Objection Notice is given within the Response Review Period, then the calculations set forth in the Net Tangible Assets Statement, Annual Earn-Out Certificate, or Option Shares Purchase Price Certificate, Contingent Consideration Statement shall be controlling for all purposes of this Agreement.
(b) final and binding on the parties hereto. If the VE Member Representative timely delivers an Objection Notice is timely given within the Response PeriodNotice, Buyer shall provide Seller all requested information included in the Objection Notice within fifteen (15) days; thereafter, the Buyer VI and the Seller VE Member Representative shall use negotiate in good faith efforts to jointly resolve any properly noticed objections the disputed items and discrepancies agree upon the Cumulative Net Revenue Amount. If VI and the VE Member Representative are unable to reach agreement within thirty (30) days after the date of delivery of the receipt by Buyer of an Objection NoticeNotice (or any longer period that may be agreed between them to continue such discussions), which resolution, if achieved, all unresolved disputed items shall be fully and completely binding upon all Parties to this Agreement and not subject to further review, appeal, or dispute.
(c) If Buyer and Seller are unable to resolve the objections and discrepancies to their mutual satisfaction within such thirty (30) day period, then the matter shall be promptly submitted to an accounting firm of international reputation mutually acceptable to Buyer and the Seller (the "Independent Accountants"). In submitting a dispute to the Independent Accountants, each Party shall concurrently furnish, at its own expense, to the Independent Accountants and the other Party such documents and information as the Independent Accountants may request. Each Party may also furnish to the Independent Accountants such other information and documents as it deems relevant, with copies of such submission and all such documents and information being concurrently given to the other Party. Neither Party shall have or conduct any communication, either written or oral, with the Independent Accountants without the other Party either being present or receiving a concurrent copy of any written communication. The Independent Accountants may conduct a conference concerning the objections and disagreements between Buyer and Seller, at which conference each Party shall have the right for resolution to (i) present its documentsan internationally-recognized, materials and other evidence (previously provided independent certified public accounting firm mutually acceptable to the Independent Accountants VI and the other Party), and VE Member Representative (the “Accounting Firm”) or (ii) have present its if VI and the VE Member Representative are unable to agree upon such a firm within ten (10) Business Days (or any longer period that may be agreed between them to continue such discussions), VI and the VE Member Representative shall, within a further ten (10) Business Days, each select one such firm and those two firms shall, within ten (10) Business Days after their advisorsselection, accountants and/or counselselect a third such firm, in which event “Accounting Firm” shall mean such third firm. The Independent Accountants Accounting Firm shall promptly act as an arbitrator to determine, based solely on information presented by the VE Member Representative, the Third Party Auditor and VI and not by independent review, and without shifting the burden of proof to either VI or the VE Member Representative, only those unresolved items that are specified in the Objection Notice and shall be limited to those adjustments, if any, required to be made to the Contingent Consideration Statement to comply with the provisions of this Agreement. The Accounting Firm shall, within sixty (but not to exceed seventy-five (7560) days from after the date of engagement submission of the Independent Accountants) render a decisiondispute, acting as an expert determine and not an arbitrator, on report to the issues presentedVE Member Representative and VI upon such remaining disputed items or calculations, and such decision report shall be final and binding on all the parties hereto. The final determination of the Parties Accounting Firm shall fall within the range of values assigned to this Agreementsuch items in dispute between the parties. In VI and the event VE Member Representative shall make reasonably available to the Independent Accountants require a payment Accounting Firm all relevant books, records and other supporting information required to be made determine the Cumulative Net Revenue Amount and any other items reasonably requested by Buyer to Seller, such payment the Accounting Firm. The fees and disbursements of the Accounting Firm shall be due and payable within thirty borne by VI, it being agreed that VI shall be entitled to deduct fifty percent (3050%) days of such fees or disbursements from the date the decision is rendered ("Independent Accountant Required Payment"). Each amount of the Parties shall agree to indemnify and hold harmless the Independent Accountants, and to execute whatever documents or agreements are necessary to effectuate the foregoing.
(d) Seller and Buyer shall each pay 50% of all costs, fees and expenses to engage the Independent Accountants.
(e) In connection with its review of all the matters arising under the Net Tangible Assets Statement, any Annual Earn-Out Certificate, or any Option Shares Purchase Price Certificate, Buyer shall afford Seller and its representatives complete access Contingent Consideration payable to the booksVE Members and, recordsto the extent so deducted, personnel and facilities of or pertaining shall be paid by VI to Buyerthe Accounting Firm.
Appears in 2 contracts
Samples: Transaction Agreement, Transaction Agreement (Visa Inc.)
Objections; Dispute Resolution. (a) If Seller Purchaser, acting reasonably and in good faith, concludes that any matter reported in the Net Tangible Assets Statement, an Annual Earn-Out Certificate, or an Option Shares Purchase Price Closing Certificate is not accurate, Seller Purchaser shall, within thirty forty-five (3045) days after its receipt of such certificate the Closing Certificate (the "Response Period"), deliver to Buyer Stonepath a written statement (the "Objection Notice"): (i) setting forth in reasonable detail stating the nature of the objections specific reason(s) for its objection(s) to each of any discrepancies believed to exist, and (ii) requesting all additional information required the alternate calculations offered by the Seller to perform calculations relating to matters contained in such certificatePurchaser along with supporting data. If no Objection Notice is given within the Response Period, then the calculations set forth in the Net Tangible Assets Statement, Annual Earn-Out Certificate, or Option Shares Purchase Price Certificate, Closing Certificate shall be controlling for all purposes of this Agreement and Stonepath shall pay the Purchaser the amount, if any, which it is obligated to pay in accordance with Section 1.3(b) of this Agreement and the Purchaser shall pay Stonepath the amount, if any, which it is obligated to pay in accordance with Section 1.3(c) of this Agreement.
(b) If an Objection Notice is timely given within the Response Period, Buyer shall provide Seller all requested information included in the Objection Notice within fifteen (15) days; thereafter, the Buyer The Purchaser and the Seller Stonepath shall use good faith efforts to jointly resolve any properly noticed objections and discrepancies within thirty fifteen (3015) days of the receipt by Buyer Stonepath of an Objection Notice, which resolution, if achieved, shall be fully and completely binding upon all Parties to this Agreement and not subject to further review, appeal, or dispute.
(c) If Buyer Purchaser and Seller Stonepath are unable to resolve the objections and discrepancies to their mutual satisfaction within such thirty fifteen (3015) day period, then the matter shall be submitted to an accounting firm of international reputation mutually acceptable to Buyer Purchaser and the Seller Stonepath (the "Independent Accountants"). If Purchaser and Stonepath cannot agree on such an accounting firm within 10 days following the end of the fifteen day resolution period, the Independent Accountants shall be a nationally recognized certified public accounting firm, to be selected by the presiding judge of the King County Superior Court, by motion of either Purchaser or Stonepath. In submitting a dispute to the Independent Accountants, each Party the Purchaser and Stonepath shall concurrently furnish, at its their own expense, to the Independent Accountants and the other Party such documents and information as the Independent Accountants may requestrequest that are in their possession or control or in the possession or control of their Affiliates and their accountants. Each Party may also furnish to the Independent Accountants such other information and documents as it deems relevant, with copies of such submission and all such documents and information being concurrently given to the other Party. Neither Party shall have or conduct any communication, either written or oral, with the Independent Accountants without the other Party either being present or receiving a concurrent copy of any written communication. The Independent Accountants may conduct a conference concerning the objections and disagreements between Buyer the Purchaser and SellerStonepath, at which conference each Party shall have the right to (i) present its documents, materials and other evidence (previously provided to the Independent Accountants and the other Party), and (ii) have present its or their advisors, accountants and/or counsel. The Independent Accountants shall promptly (but not to exceed seventy-five thirty (7530) days from the date of engagement of the Independent Accountants) render a decision, acting as an expert and not an arbitrator, decision on the issues presented, and such decision shall be final and binding on all of the Parties to this Agreement. In the event the Independent Accountants require a payment to be made by Buyer to Seller, such payment shall be due and payable within thirty (30) days from the date the decision is rendered ("Independent Accountant Required Payment"). Each of the Parties shall agree to indemnify and hold harmless the Independent Accountants, and to execute whatever documents or agreements are necessary to effectuate the foregoing.
(d) Seller and Buyer shall each pay 50% of all costsThe fees, fees costs and expenses to engage of the Independent AccountantsAccountants in performing their duties with respect to an engagement under Section 1.4(c) shall be borne equally by the Purchaser and Stonepath.
(e) In connection with its the preparation and review of the Closing Date Balance Sheet and all the other matters arising under the Net Tangible Assets Statement, any Annual Earn-Out Closing Certificate, or any Option Shares Purchase Price Certificate, Buyer each Party shall afford Seller the other Party, its accountants and its their representatives complete access to the books, records, personnel and facilities of or pertaining to Buyerthe Company in its possession.
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Objections; Dispute Resolution. (a) Not later than five (5) business days after, each Tier-1 and Tier-2 Earn-Out Payment Date, the Integration Payment Date, and delivery of the Closing Balance Sheet under Section 1.6, as the case may be, the Purchaser shall prepare and deliver to the Shareholder, along with the Tier-1 or Tier-2 Earn-Out Payment, Integration Payment, or the determination of the Subsequent Closing Cash Payment, as the case may be, a certificate (the “Earn-Out Certificate”) signed by a senior executive of the Purchaser setting forth the amount and method of calculating the amounts paid.
(b) If Seller the Shareholder concludes that any matter reported in the Net Tangible Assets Statement, an Annual Earn-Out Certificate, or an Option Shares Purchase Price Certificate is not accurate, Seller the Shareholder shall, within thirty ten (3010) days after its his receipt of such certificate (the "“Response Period"”), deliver to Buyer the Purchaser a written statement (the "“Objection Notice"): (i”) setting forth in reasonable detail the nature of the objections to each of any discrepancies believed to exist, and (ii) requesting all additional information required by the Seller to perform calculations relating to matters contained in such certificate. If no Objection Notice is given within the Response PeriodPeriod for a particular Earn Out Certificate, then the calculations set forth in the Net Tangible Assets Statement, Annual such Earn-Out Certificate, or Option Shares Purchase Price Certificate, Certificate shall be controlling for all purposes of this Agreement.
(bc) If an Objection Notice is timely given within the Response Period, Buyer shall provide Seller all requested information included in the Objection Notice within fifteen (15) days; thereafter, the Buyer Purchaser and the Seller Shareholder shall use good faith efforts to jointly resolve any properly noticed objections and discrepancies set forth in such Objection Notice within thirty (30) days of the receipt by Buyer the Purchaser of an such Objection Notice, which resolution, if achieved, shall be fully and completely binding upon all Parties to this Agreement and not subject to further review, appeal, or dispute.
(cd) If Buyer the Purchaser and Seller the Shareholder are unable to resolve the objections and discrepancies set forth in such Objection Notice to their mutual satisfaction within such thirty (30) day period, then the matter shall be submitted to an accounting firm of international reputation mutually acceptable to Buyer the Purchaser and the Seller Shareholder (the "“Independent Accountants"”). In submitting a dispute such matter to the Independent Accountants, each Party the Purchaser, and the Shareholder shall concurrently furnishdeliver, at its their own expense, to the Independent Accountants and the other Party such documents and information as the Independent Accountants may request. Each Party may also furnish deliver to the Independent Accountants such other information and documents as it deems relevant, with copies of such submission and all such documents and information being concurrently given delivered to the other Party. Neither Party shall have or conduct any communication, either written or oral, with the Independent Accountants without the other Party either being present or receiving a concurrent copy of any written communication. The Independent Accountants may conduct a conference concerning the objections and disagreements between Buyer the Purchaser and Sellerthe Shareholder, at which conference each Party shall have the right to (i) present its documents, materials and other evidence (previously provided to the Independent Accountants and the other Party), and (ii) have present its or their advisors, accountants and/or counsel. The Independent Accountants shall promptly (but not to exceed seventy-five (75) days from the date of engagement of the Independent Accountants) render a decision, acting as an expert and not an arbitrator, on the issues presented, and such decision shall be final and binding on all of the Parties to this Agreement. In the event the Independent Accountants require a payment to be made by Buyer one Party to Sellerthe other Party, such payment shall be due and payable within thirty (30) days from the date the decision is rendered ("Independent Accountant Required Payment")rendered. Each of the Parties shall agree to indemnify and hold harmless the Independent Accountants, and to execute whatever documents or agreements are necessary to effectuate the foregoing.
(de) Seller The Shareholder, on the one hand, and Buyer Purchaser, on the other hand, shall each pay fifty percent (50% %) of all costs, fees and expenses to engage the Independent Accountants.
(ef) In connection with its review of all the matters arising under the Net Tangible Assets Statement, any Annual Earn-Out Certificate, or any Option Shares Purchase Price Certificate, Buyer the Purchaser shall afford Seller provide the Shareholder and its their representatives complete access to the books, records, personnel and facilities of or pertaining to Buyerthe Company.
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Objections; Dispute Resolution. (a) The Buyer shall prepare and deliver to the Seller, along with the Tier-1 Earn-Out Payment or the Tier-2 Earn-Out Payment, as the case may be, a certificate (the “Earn-Out Certificate”) signed by a senior executive of the Buyer setting forth the amount and method of calculating the amounts paid.
(b) If the Seller concludes that any matter reported in the Net Tangible Assets Statement, an Annual Earn-Out Certificate, or an Option Shares Purchase Price Certificate Certificates is not accurate, or that the Seller cannot determine whether any such matter is accurate, the Seller shall, within thirty fifteen (3015) days Business Days after its receipt of such certificate Earn-Out Certificate (the "“Response Period"”), deliver to the Buyer a written statement (the "“Objection Notice"”): (i) setting forth in reasonable detail the nature of the objections to each of any discrepancies believed to exist, and (ii) requesting all additional information required by the Seller to perform calculations relating to matters contained in such certificate. If no Objection Notice is given within the Response Period, then the calculations set forth in the Net Tangible Assets Statement, Annual an Earn-Out Certificate, or Option Shares Purchase Price Certificate, Certificate shall be controlling for all purposes of this Agreement.
(bc) If an Objection Notice is timely given within the Response Period, Buyer shall provide Seller all requested information included in the Objection Notice within fifteen (15) days; thereafter, the Buyer and the Seller shall use good faith efforts to jointly resolve any properly noticed objections and discrepancies within thirty (30) days of the receipt by Buyer of an Objection Notice, which resolution, if achieved, shall be fully and completely binding upon all Parties to this Agreement and not subject to further review, appeal, or dispute.
(cd) If Buyer and Seller are unable to resolve the objections and discrepancies set forth in such Objection Notice to their mutual satisfaction within such thirty (30) day period, then the matter shall be submitted to an accounting firm of international reputation mutually acceptable to Buyer and the Seller (the "Independent Accountants"). In submitting a dispute to the Independent Accountants, each Party Buyer and Seller shall concurrently furnish, at its their own expense, to the Independent Accountants and the other Party such documents and information as the Independent Accountants may request. Each Party may also furnish to the Independent Accountants such other information and documents as it deems relevant, with copies of such submission and all such documents and information being concurrently given to the other Party. Neither Party shall have or conduct any communication, either written or oral, with the Independent Accountants without the other Party either being present or receiving a concurrent copy of any written communication. The Independent Accountants may conduct a conference concerning the objections and disagreements between Buyer and Seller, at which conference each Party shall have the right to (i) present its documents, materials and other evidence (previously provided to the Independent Accountants and the other Party), and (ii) have present its or their advisors, accountants and/or counsel. The Independent Accountants shall promptly (but not to exceed seventy-five (75) days from the date of engagement of the Independent Accountants) render a decision, acting as an expert and not an arbitrator, decision on the issues presented, and such decision shall be final and binding on all of the Parties to this Agreement. In the event the Independent Accountants require a payment to be made by Buyer to Seller, such payment shall be due and payable within thirty (30) days from the date the decision is rendered ("Independent Accountant Required Payment"). Each of the Parties shall agree to indemnify and hold harmless the Independent Accountants, and to execute whatever documents or agreements are necessary to effectuate the foregoing.
(de) The Seller and the Buyer shall each pay 50% one-half of all costs, the fees and expenses to engage the disbursements of any Independent Accountants.
(ef) In connection with its review of all the matters arising under the Net Tangible Assets Statement, any Annual Earn-Out Certificate, or any Option Shares Purchase Price Certificate, the Buyer shall afford provide the Seller and its representatives complete access to the books, records, personnel and facilities of or pertaining to the Buyer.
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Objections; Dispute Resolution. (a) If Seller concludes that either the Purchaser or the Shareholders disagree (either such Party, the “Objecting Party”) with any matter reported in of the Net Tangible Assets StatementDelivery Date Deliverables, an Annual Earn-Out Certificatethe Closing Date Working Capital or any component parts thereof (including the Closing Date Accounts Receivable), or an Option Shares Purchase Price Certificate is not accurate, Seller the Objecting Party shall, within thirty (30) days after its receipt of such certificate the Delivery Date (the "“Response Period"”), deliver to Buyer the other Party a written statement (the "“Objection Notice"): (i”) setting forth in reasonable detail the nature of the objections to each of any discrepancies believed to exist, and (ii) requesting all additional information required by the Seller to perform calculations relating to matters contained in such certificate. If no Objection Notice is given within the Response Period, then the calculations set forth in the Net Tangible Assets Statementof Closing Date Working Capital and all components thereof, Annual Earn-Out Certificate, or Option Shares Purchase Price Certificateincluding Closing Date Accounts Receivable and Closing Date Accounts Payable, shall be controlling for all purposes of this Agreement.
(b) If an Objection Notice is timely given within the Response Period, Buyer shall provide Seller all requested information included in the Objection Notice within fifteen (15) days; thereafterPeriod by either or both Parties, the Buyer Purchaser and the Seller Shareholders shall use good faith efforts to jointly resolve any properly noticed objections and discrepancies set forth in such Objection Notice within thirty (30) days of the receipt by Buyer the other Party of an such Objection Notice, which resolution, if achieved, shall be fully and completely binding upon all Parties to this Agreement and not subject to further review, appeal, or dispute.
(c) If Buyer the Purchaser and Seller the Shareholders are unable to resolve the objections and discrepancies set forth in any such Objection Notice to their mutual satisfaction within such thirty (30) day period, then the matter shall be submitted to an accounting firm of international reputation regional renown, mutually and reasonably acceptable to Buyer the Purchaser and the Seller Shareholders, that has no ongoing relationship to any of the Parties or the Company (the "“Independent Accountants"”). In submitting a dispute such matter to the Independent Accountants, each Party the Purchaser and the Shareholders shall concurrently furnishdeliver, at its their own expense, to the Independent Accountants and the other Party such documents and information as the Independent Accountants may request. Each Party may also furnish deliver to the Independent Accountants such other information and documents as it deems relevant, with copies of such submission and all such documents and information being concurrently given delivered to the other Party. Neither Party shall have or conduct any communication, either written or oral, with the Independent Accountants without the other Party either being present (or waiving the right to be present) or receiving a concurrent copy of any written communication. The Independent Accountants may conduct a conference concerning the objections and disagreements between Buyer the Purchaser and Sellerthe Shareholders, at which conference each Party shall have the right to (i) present its documents, materials and other evidence (previously provided to the Independent Accountants and the other Party), and (ii) have present its or their advisors, accountants and/or counsel. The Independent Accountants shall promptly (but not to exceed seventy-five (75) days from the date of engagement of the Independent Accountants) render a decision, acting as an expert and not an arbitrator, on the issues presented, and such decision shall be final and binding on all of the Parties to this Agreement. In the event the Independent Accountants require a payment to be made by Buyer one Party to Sellerthe other Party, such payment shall be due and payable within thirty (30) days from the date the decision is rendered ("Independent Accountant Required Payment")rendered. Each If requested, each of the Parties shall agree to indemnify and hold harmless the Independent Accountants, and to execute whatever documents or agreements are reasonably necessary to effectuate the foregoing.
(d) Seller The Shareholders, on the one hand, and Buyer Purchaser, on the other hand, shall each pay 50% of all costs, fees and expenses to engage the Independent Accountants provided, that, in the event that (i) the Purchaser is the Objecting Party and the final determination of Closing Date Working Capital, Closing Date Accounts Receivable or Closing Date Accounts Payable, as the case may be, is 95% or more of the respective amount determined by the Independent Accountants, then the Purchaser shall pay all of the fees and expenses of the Independent Accountants and (ii) the Shareholders are the Objecting Party and the final determination of Closing Date Working Capital, Closing Date Accounts Receivable or Closing Date Accounts Payable, as the case may be, is 105% or less of the amount determined by the Independent Accountants, then the Shareholders shall pay all of the fees and expenses of the Independent Accountants.
(e) In connection with its review of all the matters arising under the Net Tangible Assets StatementClosing Balance Sheet, any Annual Earn-Out Certificatethe Purchaser shall provide the Shareholders, or any Option Shares Purchase Price Certificate, Buyer shall afford Seller their representatives and its representatives the Independent Accountants complete access to the books, records, personnel and facilities of or pertaining to Buyerthe Company.
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Objections; Dispute Resolution. (a) If Seller concludes that any matter reported in the Net Tangible Assets Statement, an Annual Earn-Out Certificate, or an Option Shares Purchase Price Certificate is not accurate, Seller shall, within thirty (30) days after its receipt of such certificate (the "Response Period"), deliver to Buyer a written statement (the "Objection Notice"): (i) setting Once each fiscal year, Seller and Purchaser shall each have the right to object to the other Party’s determination(s) or calculations set forth in one or more applicable Quarterly Warranty Statements for the prior four quarters, including, in each case, any component thereof, or any other calculation or determination or amount of detail provided therein, by delivering (in each case) a written notice of objection to the other Party (each such notice, a “Warranty Payment Objection Notice”). Any Warranty Payment Objection Notice shall state, in reasonable detail detail, the nature of basis for such objection, the objections Quarterly Warranty Statement(s) to each of any discrepancies believed to existwhich the Warranty Payment Objection Notice relates, as well as the amount(s) and calculation(s) in dispute.
(ii) requesting all additional information required by the Seller to perform calculations relating to matters contained in such certificate. If no a Party does not deliver a Warranty Payment Objection Notice is given within to the Response Periodother Party in a fiscal year, then the calculations set forth in the Net Tangible Assets Statement, Annual Earn-Out Certificate, or Option Shares Purchase Price Certificate, shall be controlling for all purposes of this Agreement.
(b) If an Objection Notice is timely given within the Response Period, Buyer shall provide Seller all requested information included in the Objection Notice within fifteen (15) days; thereafter, the Buyer and the Seller shall use good faith efforts to jointly resolve any properly noticed objections and discrepancies within thirty (30) days of the receipt by Buyer of an Objection Notice, which resolution, if achieved, shall be fully and completely binding upon all Parties to this Agreement and not subject to further review, appeal, or dispute.
(c) If Buyer and Seller are unable to resolve the objections and discrepancies to their mutual satisfaction within such thirty (30) day period, then the matter shall be submitted to an accounting firm of international reputation mutually acceptable to Buyer and the Seller (the "Independent Accountants"). In submitting a dispute to the Independent Accountants, each Party shall concurrently furnish, at its own expense, to the Independent Accountants and the other Party such documents and information as the Independent Accountants may request. Each Party may also furnish to the Independent Accountants such other information and documents as it deems relevant, with copies of such submission and all such documents and information being concurrently given to the other Party. Neither Party shall have or conduct any communication, either written or oral, with the Independent Accountants without the other Party either being present or receiving a concurrent copy of any written communication. The Independent Accountants may conduct a conference concerning the objections and disagreements between Buyer and Seller, at which conference each Party shall have the right to (i) present its documents, materials and other evidence (previously provided to the Independent Accountants and the other Party), and (ii) have present its or their advisors, accountants and/or counsel. The Independent Accountants shall promptly (but not to exceed seventy-five (75) days from the date of engagement of the Independent Accountants) render a decision, acting as an expert and not an arbitrator, on the issues presented, and such decision relevant Quarterly Warranty Statements shall be final and binding on the Parties
(iii) If either Party timely delivers a Warranty Payment Objection Notice in respect of one or more Quarterly Warranty Statements, Purchaser and Seller shall negotiate in good faith to resolve the relevant disputed items.
(iv) If Seller and Purchaser are unable to reach agreement within 30 days after the date of delivery of a Warranty Payment Objection Notice (or any longer period that may be agreed between them to continue such discussions), all unresolved disputed items related to that Warranty Payment Objection Notice shall be promptly submitted for resolution to the Accountant.
(v) The Accountant shall act as an arbitrator to determine, based solely on information provided to it by Seller or Purchaser, and not by independent review, and without shifting the burden of proof to either Purchaser or Seller, only those unresolved items that are specified in the Parties Warranty Payment Objection Notice and shall be limited to those adjustments, if any, required to be made to the relevant Quarterly Warranty Statement to comply with the provisions of this Agreement. In The Accountant shall, within 60 days after submission to it of the event the Independent Accountants require a payment dispute, determine and report to be made by Buyer to SellerSeller and Purchaser upon such remaining disputed items or calculations, and such payment report shall be due final and payable within thirty (30) days from binding on the date the decision is rendered ("Independent Accountant Required Payment"). Each of the Parties shall agree to indemnify and hold harmless the Independent Accountants, and to execute whatever documents or agreements are necessary to effectuate the foregoingParties.
(dvi) The final determination of the Accountant shall fall within the range of values assigned to such items in dispute between the Parties. Seller and Buyer Purchaser shall each pay 50% make reasonably available to the Accountant all relevant books, records and other supporting information required to determine the amounts set forth the relevant Quarterly Warranty Statement (and any element of all coststhe calculation thereof), and any other items reasonably requested by the Accountant. The fees and expenses to engage disbursements of the Independent AccountantsAccountant shall be borne equally by Seller and Purchaser.
(evii) In connection If the amount of one or more Quarterly Warranty True-Up Payments payable under this Agreement, as finally determined in accordance with its review this Section 5.13(c) (whether by agreement between the Parties or by determination of all the matters arising under Accountant), is greater than or less than the Net Tangible Assets Statementapplicable Quarterly Warranty True-Up Payment amount originally determined by Seller, than the Party that has underpaid shall pay the other Party the additional amounts required as soon as reasonably practicable and in any Annual Earn-Out Certificate, or any Option Shares Purchase Price Certificate, Buyer shall afford Seller and its representatives complete access to event within five Business Days of the books, records, personnel and facilities final determination of or pertaining to Buyerthe amount of the applicable amounts by the Accountant in accordance with this Section 5.13(c).
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Objections; Dispute Resolution. (a) If Seller concludes the Shareholders conclude that any matter reported in the Net Tangible Assets Statement, an Annual Earn-Out Certificate, Certificate or an Option Shares Purchase Price Closing Certificate is not accurate, Seller the Shareholders shall, within thirty (30) days after its their receipt of the such certificate Annual Earn-Out Certificate or Closing Certificate (the "Response Period"), deliver to Buyer the Purchaser a written statement (the "Objection Notice"): (i) setting forth in reasonable detail the nature of the objections to each of any discrepancies believed to exist, and (ii) requesting all additional information required by the Seller Shareholders to perform calculations relating to matters contained in such certificate. If no Objection Notice is given within the Response Period, then the calculations set forth in the Net Tangible Assets Statement, an Annual Earn-Out Certificate or Closing Certificate, or Option Shares Purchase Price Certificateas applicable, shall be controlling for all purposes of this Agreement and, (A) in the case of an Annual Earn-Out Certificate, Purchaser shall pay the Shareholders the amount, if any, which it is obligated to pay in accordance with Sections 1.2(b)(ii) and (iv), and (B) in the case of the Closing Certificate, the Shareholders shall pay the Purchaser the amount, if any, which they are obligated to pay in accordance with Section 1.3(b) of this Agreement and the Purchaser shall pay the Shareholders the amount, if any, which it is obligated to pay in accordance with Section 1.3(c) of this Agreement.
(b) If an Objection Notice is timely given within the Response Period, Buyer shall provide Seller all requested information included in the Objection Notice within fifteen (15) days; thereafter, the Buyer The Purchaser and the Seller Shareholders shall use good faith efforts to jointly resolve any properly noticed objections and discrepancies within thirty fifteen (3015) days of the receipt by Buyer the Purchaser of an Objection Notice, which resolution, if achieved, shall be fully and completely binding upon all Parties to this Agreement and not subject to further review, appeal, or dispute.
(c) If Buyer Purchaser and Seller the Shareholders are unable to resolve the objections and discrepancies to their mutual satisfaction within such thirty fifteen (3015) day period, then the matter shall be submitted to an accounting firm of international national reputation mutually acceptable to Buyer Purchaser and the Seller Shareholders (the "Independent Accountants"). In submitting a dispute to the Independent Accountants, each Party the Purchaser, the Company and the Shareholders shall concurrently furnish, at its their own expense, to the Independent Accountants and the other Party such documents and information as the Independent Accountants may request. Each Party may also furnish to the Independent Accountants such other information and documents as it deems relevant, with copies of such submission and all such documents and information being concurrently given to the other Party. Neither Party shall have or conduct any communication, either written or oral, with the Independent Accountants without the other Party either being present or receiving a concurrent copy of any written communication. The Independent Accountants may conduct a conference concerning the objections and disagreements between Buyer the Purchaser and Sellerthe Shareholders, at which conference each Party shall have the right to (i) present its documents, materials and other evidence (previously provided to the Independent Accountants and the other Party), and (ii) have present its or their advisors, accountants and/or counsel. The Independent Accountants shall promptly (but not to exceed seventy-five thirty (7530) days from the date of engagement of the Independent Accountants) render a decision, acting as an expert and not an arbitrator, decision on the issues presented, and such decision shall be final and binding on all of the Parties to this Agreement. In the event the Independent Accountants require a payment to be made by Buyer to Seller, such payment shall be due and payable within thirty (30) days from the date the decision is rendered ("Independent Accountant Required Payment"). Each of the Parties shall agree to indemnify and hold harmless the Independent Accountants, and to execute whatever documents or agreements are necessary to effectuate the foregoing.
(d) Seller and Buyer shall each pay 50% of all costsThe fees, fees costs and expenses to engage of the Independent AccountantsAccountants in performing their duties with respect to an engagement under Section 1.4(c) shall be borne equally by the Purchaser and the Shareholders.
(e) In connection with its their review of the Closing Date Balance Sheet and all the other matters arising under the Net Tangible Assets Statement, any Closing Certificate and Annual Earn-Out CertificateCertificates, or any Option Shares Purchase Price Certificate, Buyer the Purchaser shall afford Seller the Shareholders and its their representatives complete access to the books, records, personnel and facilities of or pertaining to Buyerthe Company.
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Objections; Dispute Resolution. (a) On each Earn-Out Payment Date, Purchaser and Stonepath shall prepare and deliver to the Shareholder, along with the Earn-Out Payment, a certificate (the "Annual Earn-Out Certificate") signed by the Chief Financial Officer of Stonepath setting forth the amount and method of calculating Net Income Before Taxes for the prior calendar year (or portion thereof) the calculation of the Earn-Out Payment then due, if any, and the recovery of the Shortfall Amount, if any.
(b) If Seller the Shareholder concludes that any matter reported in the Net Tangible Assets Statement, an Annual Earn-Out Certificate, or an Option Shares Purchase Price Certificate is not accurate, Seller the Shareholder shall, within thirty (30) days after its his receipt of the such certificate Annual Earn-Out Certificate (the "Response Period"), deliver to Buyer the Purchaser a written statement (the "Objection Notice"): (i) setting forth in reasonable detail the nature of the objections to each of any discrepancies believed to exist, and (ii) requesting all additional information required by the Seller Shareholder to perform calculations relating to matters contained in such certificate. If no Objection Notice is given within the Response Period, then the calculations set forth in the Net Tangible Assets Statement, an Annual Earn-Out Certificate, or Option Shares Purchase Price Certificate, shall be controlling for all purposes of this Agreement.
(bc) If an Objection Notice objection notice is timely given within the Response Period, Buyer the Purchaser shall provide Seller Shareholder all requested information included in the Objection Notice within fifteen (15) days; thereafter, the Buyer Purchaser and the Seller Shareholder shall use good faith efforts to jointly resolve any properly noticed objections and discrepancies within thirty (30) days of the receipt by Buyer the Purchaser of an Objection Notice, which resolution, if achieved, shall be fully and completely binding upon all Parties to this Agreement and not subject to further review, appeal, or dispute.
(cd) If Buyer Purchaser and Seller the Shareholder are unable to resolve the objections and discrepancies to their mutual satisfaction within such thirty (30) day period, then the matter shall be submitted to an accounting firm of international national reputation mutually acceptable to Buyer Purchaser and the Seller Shareholder (the "Independent Accountants"). In submitting a dispute to the Independent Accountants, each Party the Purchaser, the Company and the Shareholder shall concurrently furnish, at its their own expense, to the Independent Accountants and the other Party such documents and information as the Independent Accountants may request. Each Party may also furnish to the Independent Accountants such other information and documents as it deems relevant, with copies of such submission and all such documents and information being concurrently given to the other Party. Neither Party shall have or conduct any communication, either written or oral, with the Independent Accountants without the other Party either being present or receiving a concurrent copy of any written communication. The Independent Accountants may conduct a conference concerning the objections and disagreements between Buyer the Purchaser and Sellerthe Shareholder, at which conference each Party shall have the right to (i) present its documents, materials and other evidence (previously provided to the Independent Accountants and the other Party), and (ii) have present its or their advisors, accountants and/or counsel. The Independent Accountants shall promptly (but not to exceed seventy-five (75) days from the date of engagement of the Independent Accountants) render a decision, acting as an expert and not an arbitrator, decision on the issues presented, and such decision shall be final and binding on all of the Parties to this Agreement. In the event the Independent Accountants require a payment to be made by Buyer Purchaser to SellerShareholder, such payment shall be due and payable within thirty (30) days from the date the decision is rendered ("Independent Accountant Required Payment"). ) Each of the Parties parties shall agree to indemnify and hold harmless the Independent Accountants, and to execute whatever documents or agreements are necessary to effectuate the foregoing.
(e) If the decision of the Independent Accountants indicates that the amount of the Earn-Out Payment set forth in the Annual Earn-Out Certificate is under reported by 10% or more, then in that event, Purchaser and Stonepath shall reimburse Shareholder for all fees, costs and expenses associated with the challenge to the Annual Earn-Out Certificate in Section 1.3(b)(c) and (d) Seller ), and Buyer all fees, costs and expenses to engage the Independent Accountants to perform the duties as set forth above. If the decision of the Independent Accountants indicates that the amount of the Earn-Out Payment set forth in the Annual Earn-Out Certificate is under reported by more than 5%, but less than 10%, then, and in that event, Shareholder and Purchaser shall each pay 50% of all costs, fees and expenses to engage the Independent Accountants. If the decision of the Independent Accountants indicates that the amount of the Earn-Out Payment set forth in the Annual Earn-Out Certificate is under reported by less than 5%, then, in that event, Shareholder shall pay all fees, costs and expenses to engage the Independent Accountants to perform their duties as set forth above. All payments of fees, costs and expenses pursuant to this section shall be due and payable to the prevailing party by the non-prevailing party within 30 days of presentment of the invoice for such fees, costs and expenses, after which, the unpaid amounts shall bear interest at the rate of 7% per annum.
(ef) In the event that Purchaser fails: (i) to make the Earn-Out Payment to Shareholder by the dates set forth in Section 1.2, or (ii) fails to make the Independent Accountant Required Payment, if any, within thirty (30) days of the date that the Independent Accountants render the decision as provided in Section 1.3(d), then in either event, Purchaser and Stonepath agree that the amounts due Shareholder for such Earn-Out Payments and Independent Accountants Required Payments shall be increased by 30%, notwithstanding anything contained herein to the contrary. Further, if the event Purchaser fails to make any Earn-Out Payments by the due dates set forth in Section 1.2, or fails to make the Independent Accountants Required Payments, if any, within thirty (30) days from the date that the Independent Accountant renders the decision as provided in Section 1.3(d), then Purchaser and Stonepath also agree to pay to Shareholder interest on the unpaid amounts at the rate of 12% per annum, until such time as all unpaid amounts, including all accrued interest has been paid in full to Shareholder.
(g) In connection with its their review of the all the matters arising under the Net Tangible Assets Statement, any Annual Earn-Out Certificate, or any Option Shares Purchase Price Certificate, Buyer the Purchaser shall afford Seller the Shareholder and its his representatives complete access to the books, records, personnel and facilities of or pertaining to Buyer.the Company
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Objections; Dispute Resolution. (a) Not later than five (5) business days after each Earn-Out Payment Date and the Tier-2 Earn-Out Payment Date, as the case may be, the Purchaser shall prepare and deliver to the Shareholders, along with the Earn-Out Payment or Tier-2 Earn-Out Payment, as the case may be, a certificate (the “Earn-Out Certificate”) signed by a senior executive of the Purchaser setting forth the amount and method of calculating Income from Continuing Operations for the prior fiscal year (or, in the case of the Tier-2 Earn-Out Payment, for the prior 5 fiscal years), the calculation of the Earn-Out Payment or Tier-2 Earn-Out Payment, as the case may be, then due, if any, and the recovery of the Shortfall Amount, if any, if applicable.
(b) If Seller the Shareholders’ Agent concludes that any matter reported in the Net Tangible Assets Statement, an Annual Earn-Out Certificate, or an Option Shares Purchase Price Certificate is not accurate, Seller the Shareholders’ Agent shall, within thirty (30) days after its their receipt of such certificate (the "“Response Period"”), deliver to Buyer the Purchaser a written statement (the "“Objection Notice"): (i”) setting forth in reasonable detail the nature of the objections to each of any discrepancies believed to exist, and (ii) requesting all additional information required by the Seller to perform calculations relating to matters contained in such certificate. If no Objection Notice is given within the Response PeriodPeriod for a particular Earn Out Certificate, then the calculations set forth in the Net Tangible Assets Statement, Annual such Earn-Out Certificate, or Option Shares Purchase Price Certificate, Certificate shall be controlling for all purposes of this Agreement.
(bc) If an Objection Notice is timely given within the Response Period, Buyer shall provide Seller all requested information included in the Objection Notice within fifteen (15) days; thereafter, the Buyer Purchaser and the Seller Shareholders shall use good faith efforts to jointly resolve any properly noticed objections and discrepancies set forth in such Objection Notice within thirty (30) days of the receipt by Buyer the Purchaser of an such Objection Notice, which resolution, if achieved, shall be fully and completely binding upon all Parties to this Agreement and not subject to further review, appeal, or dispute.
(cd) If Buyer the Purchaser and Seller the Shareholders are unable to resolve the objections and discrepancies set forth in such Objection Notice to their mutual satisfaction within such thirty (30) day period, then the matter shall be submitted to an accounting firm of international reputation mutually acceptable to Buyer the Purchaser and the Seller Shareholders’ Agent (the "“Independent Accountants"”). In submitting a dispute such matter to the Independent Accountants, each Party the Purchaser, and the Shareholders shall concurrently furnish, at its their own expense, to the Independent Accountants and the other Party such documents and information as the Independent Accountants may request. Each Party may also furnish to the Independent Accountants such other information and documents as it deems relevant, with copies of such submission and all such documents and information being concurrently given to the other Party. Neither Party shall have or conduct any communication, either written or oral, with the Independent Accountants without the other Party either being present or receiving a concurrent copy of any written communication. The Independent Accountants may conduct a conference concerning the objections and disagreements between Buyer the Purchaser and Sellerthe Shareholders, at which conference each Party shall have the right to (i) present its documents, materials and other evidence (previously provided to the Independent Accountants and the other Party), and (ii) have present its or their advisors, accountants and/or counsel. The Independent Accountants shall promptly (but not to exceed seventy-five (75) days from the date of engagement of the Independent Accountants) render a decision, acting as an expert and not an arbitrator, on the issues presented, and such decision shall be final and binding on all of the Parties to this Agreement. In the event the Independent Accountants require a payment to be made by Buyer the Purchaser to Sellerthe Shareholders, such payment shall be due and payable within thirty (30) days from the date the decision is rendered ("“Independent Accountant Required Payment"”). Each of the Parties shall agree to indemnify and hold harmless the Independent Accountants, and to execute whatever documents or agreements are necessary to effectuate the foregoing.
(de) Seller The Shareholders, on the one hand, and Buyer Purchaser, on the other hand, shall each pay 50% of all costs, fees and expenses to engage the Independent Accountants.
(ef) In connection with its review of the all the matters arising under the Net Tangible Assets Statement, any Annual Earn-Out Certificate, or any Option Shares Purchase Price Certificate, Buyer the Purchaser shall afford Seller the Shareholders and its their representatives complete access to the books, records, personnel and facilities of or pertaining to Buyerthe Company.
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Objections; Dispute Resolution. (a) If the Seller concludes that objects to any matter reported in the Net Tangible Assets StatementAdditional Initial Payment Certificate, an Annual Earn-Out Certificate, or an Option Shares Purchase Price the Additional Earn-Out Certificate is not accurate(collectively, the "Payment Certificates"), the Seller shall, within thirty (30) days after its receipt of such certificate Payment Certificate (the "Response Period"), deliver to the Buyer a written statement (the "Objection Notice"): (i) setting forth in reasonable detail the nature of the objections to each of any discrepancies believed to exist, and (ii) requesting all additional information required by the Seller to perform calculations relating to matters contained in such certificate. If no Objection Notice is given within the Response Period, then the calculations set forth in the Net Tangible Assets Statement, Annual Earn-Out Certificate, or Option Shares Purchase Price Certificate, a Payment Certificate shall be controlling for all purposes of this Agreement.
(b) If an Objection Notice objection notice is timely given within the Response Period, Buyer shall provide Seller all requested information included in the Objection Notice within fifteen (15) days; thereafter, the Buyer and the Seller shall use good faith efforts to jointly resolve any properly noticed objections and discrepancies within thirty (30) days of the receipt by Buyer of an Objection Notice, which resolution, if achieved, shall be fully and completely binding upon all Parties to this Agreement and not subject to further review, appeal, or dispute.
(c) If Buyer and Seller are unable to resolve the objections and discrepancies to their mutual satisfaction within such thirty (30) day period, then the matter shall be submitted to an accounting firm of international national reputation mutually acceptable to Buyer and the Seller (the "Independent Accountants"). In submitting a dispute to the Independent Accountants, each Party Buyer and Seller shall concurrently furnish, at its their own expense, to the Independent Accountants and the other Party such documents and information as the Independent Accountants may request. Each Party may also furnish to the Independent Accountants such other information and documents as it deems relevant, with copies of such submission and all such documents and information being concurrently given to the other Party. Neither Party shall have or conduct any communication, either written or oral, with the Independent Accountants without the other Party either being present or receiving a concurrent copy of any written communication. The Independent Accountants may conduct a conference concerning the objections and disagreements between Buyer and Seller, at which conference each Party shall have the right to (i) present its documents, materials and other evidence (previously provided to the Independent Accountants and the other Party), and (ii) have present its or their advisors, accountants and/or counsel. The Independent Accountants shall promptly (but not to exceed seventy-five (75) days from the date of engagement of the Independent Accountants) render a decision, acting as an expert and not an arbitrator, decision on the issues presented, and such decision shall be final and binding on all of the Parties to this Agreement. In the event the Independent Accountants require a payment to be made by Buyer to Seller, such payment shall be due and payable within thirty (30) days from the date the decision is rendered ("Independent Accountant Required Payment"). ) Each of the Parties parties shall agree to indemnify and hold harmless the Independent Accountants, and to execute whatever documents or agreements are necessary to effectuate the foregoing.
(d) Seller and If the decision of the Independent Accountants indicates that the amount of the payment set forth in a Payment Certificate is under reported, then in that event, Buyer shall each pay 50% of reimburse Seller for all costsfees, fees costs and expenses associated with the challenge to the Payment Certificate in Section 3.2(b) and (c), and all fees, costs and expenses to engage the Independent AccountantsAccountants to perform the duties as set forth above. If the decision of the Independent Accountants indicates that the amount of the payment set forth in the Payment Certificate is not under reported then, in that event, Seller shall pay all fees, costs and expenses to engage the Independent Accountants to perform their duties as set forth above. All payments of fees, costs and expenses pursuant to this Section shall be due and payable to the prevailing party by the non-prevailing party within 30 days of presentment of the invoice for such fees, costs and expenses, after which, the unpaid amounts shall bear interest at the rate of 7% per annum.
(e) In connection with its their review of the all the matters arising under the Net Tangible Assets Statement, any Annual Earn-Out Certificate, or any Option Shares Purchase Price a Payment Certificate, Buyer shall afford Seller and its representatives complete access to the books, records, personnel and facilities of or pertaining to Buyer.
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Objections; Dispute Resolution. (ai) Prior to the expiration of the Contingent Payment Statement Review Period, Seller may object to Purchaser’s determination(s) or calculations set forth in the applicable Contingent Payment Statement, including, in each case, any component thereof, or any other calculation or determination or amount of detail provided therein, by delivering (in each case) a written notice of objection to Purchaser (each such notice, a “Contingent Payment Objection Notice”). Any Contingent Payment Objection Notice shall state, in reasonable detail, the basis for such objection, the Contingent Payment Statement to which the Contingent Payment Objection Notice relates, as well as the amount(s) and calculation(s) in dispute.
(ii) If Seller concludes that any matter reported in fails to deliver a Contingent Payment Objection Notice to Purchaser prior to the Net Tangible Assets Statement, an Annual Earn-Out Certificate, or an Option Shares Purchase Price Certificate is not accurate, Seller shall, within thirty (30) days after its receipt of such certificate (the "Response Period"), deliver to Buyer a written statement (the "Objection Notice"): (i) setting forth in reasonable detail the nature expiration of the objections to each of any discrepancies believed to exist, and (ii) requesting all additional information required by the Seller to perform calculations relating to matters contained in such certificate. If no Objection Notice is given within the Response applicable Contingent Payment Statement Review Period, then the calculations set forth in the Net Tangible Assets Statement, Annual Earn-Out Certificate, or Option Shares Purchase Price Certificate, shall be controlling for all purposes of this Agreement.
(b) If an Objection Notice is timely given within the Response Period, Buyer shall provide Seller all requested information included in the Objection Notice within fifteen (15) days; thereafter, the Buyer and the Seller shall use good faith efforts to jointly resolve any properly noticed objections and discrepancies within thirty (30) days of the receipt by Buyer of an Objection Notice, which resolution, if achieved, shall be fully and completely binding upon all Parties to this Agreement and not subject to further review, appeal, or dispute.
(c) If Buyer and Seller are unable to resolve the objections and discrepancies to their mutual satisfaction within such thirty (30) day period, then the matter shall be submitted to an accounting firm of international reputation mutually acceptable to Buyer and the Seller (the "Independent Accountants"). In submitting a dispute to the Independent Accountants, each Party shall concurrently furnish, at its own expense, to the Independent Accountants and the other Party such documents and information as the Independent Accountants may request. Each Party may also furnish to the Independent Accountants such other information and documents as it deems relevant, with copies of such submission and all such documents and information being concurrently given to the other Party. Neither Party shall have or conduct any communication, either written or oral, with the Independent Accountants without the other Party either being present or receiving a concurrent copy of any written communication. The Independent Accountants may conduct a conference concerning the objections and disagreements between Buyer and Seller, at which conference each Party shall have the right to (i) present its documents, materials and other evidence (previously provided to the Independent Accountants and the other Party), and (ii) have present its or their advisors, accountants and/or counsel. The Independent Accountants shall promptly (but not to exceed seventy-five (75) days from the date of engagement of the Independent Accountants) render a decision, acting as an expert and not an arbitrator, on the issues presented, and such decision relevant Contingent Payment Statement shall be final and binding on all the Parties. In the case of the Parties determination of the amount of the Contingent Consideration for any applicable review period, if Seller fails to deliver a Contingent Payment Objection Notice in respect of such period as aforesaid, the Purchaser Contingent Consideration Amount in respect of such period shall be deemed to be the finally determined amount of the Contingent Consideration in respect of such period for all purposes under this Agreement.
(iii) If Seller timely delivers a Contingent Payment Objection Notice in respect of one or more Contingent Payment Statements, Purchaser and Seller shall negotiate in good faith to resolve the relevant disputed items.
(iv) If Seller and Purchaser are unable to reach agreement within 30 days after the date of delivery of a Contingent Payment Objection Notice (or any longer period that may be agreed between them to continue such discussions), all unresolved disputed items related to that Contingent Payment Objection Notice shall be promptly submitted for resolution to the Accountant.
(v) The Accountant shall act as an arbitrator to determine, based solely on information provided to it by Seller or Purchaser, and not by independent review, and without shifting the burden of proof to either Purchaser or Seller, only those unresolved items that are specified in the Contingent Payment Objection Notice and shall be limited to those adjustments, if any, required to be made to the relevant Contingent Payment Statement to comply with the provisions of this Agreement. In The Accountant shall, within 60 days after submission to it of the event the Independent Accountants require a payment dispute, determine and report to be made by Buyer to SellerSeller and Purchaser upon such remaining disputed items or calculations, and such payment report shall be due final and payable within thirty (30) days from binding on the date the decision is rendered ("Independent Accountant Required Payment"). Each of the Parties shall agree to indemnify and hold harmless the Independent Accountants, and to execute whatever documents or agreements are necessary to effectuate the foregoingParties.
(dvi) The final determination of the Accountant shall fall within the range of values assigned to such items in dispute between the Parties. Seller and Buyer Purchaser shall each pay 50% make reasonably available to the Accountant all relevant books, records and other supporting information required to determine the amount of all coststhe Contingent Consideration (and any element of the calculation thereof), and any other items reasonably requested by the Accountant. The fees and expenses to engage disbursements of the Independent AccountantsAccountant shall be borne equally by Seller and Purchaser.
(evii) In connection If the amount of Contingent Consideration payable under this Agreement, as finally determined in accordance with its review this Section 2.6 (whether by agreement between the Parties or by determination of all the matters arising under Accountant), is greater than the Net Tangible Assets Statement, any Annual Earn-Out Certificateapplicable Contingent Consideration amount originally determined by Purchaser, or any Option Shares Purchase Price Certificategreater than zero if Purchaser asserted in the Contingent Payment Statement that no Contingent Consideration would be payable, Buyer Purchaser shall afford pay to Seller and its representatives complete access an amount (in cash) equal to the booksapplicable Contingent Consideration as determined by the Accountant (or, recordsif payment of the applicable Contingent Consideration has already been made, personnel the excess of such amount over the Contingent Consideration amount), as soon as reasonably practicable and facilities in any event within five Business Days of or pertaining to Buyerthe final determination of the amount of the applicable Contingent Consideration by the Accountant in accordance with this Section 2.6(h).
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