Post-Closing Adjustment Procedures. (a) As soon as reasonably practicable, but in no event later than sixty (60) days after the Closing Date, Buyer shall prepare and cause to be delivered to Parent a statement with its good faith determination (as certified by Buyer’s chief financial officer) of the Cash Purchase Price, which statement shall include, in reasonable detail, (i) Buyer’s calculation of the amounts for each of the adjustments set forth in Section 2.04(a), (ii) the portion of the Cash Purchase Price allocable to each Selling Entity and (iii) the number of Buyer Shares allocable to each Seller (the “Closing Statement”). The portion of the Cash Purchase Price allocable to each Selling Entity and the number of Buyer Shares allocable to each Seller shall be determined in accordance with Section 6.09. Buyer shall provide a reasonable level of supporting documentation for the Closing Statement and the Cash Purchase Price therein and the calculation thereof and any additional information reasonably requested by Parent and related thereto. (b) Upon receipt of the Closing Statement, Parent and its representatives shall be permitted during the succeeding sixty (60) day period (the “Review Period”) reasonable access, upon reasonable notice, to (i) the Books and Records in the possession of Buyer or any member of the Company Group which would reasonably be expected to be necessary for the preparation of the Closing Statement and (ii) the personnel of Buyer and the Company Group involved in the preparation of the Closing Statement and/or who would reasonably be expected to be necessary for the preparation thereof; provided, however, that the independent accountants of Buyer shall not be obligated to make any working papers available to Parent, unless and until Parent has signed a customary confidentiality and hold harmless agreement relating to such access to working papers in form and substance reasonably acceptable to such independent accountants. (c) If Parent disagrees with the Closing Statement or the calculation of the Cash Purchase Price in the Closing Statement, on or prior to the last day of the Review Period, Parent shall notify Buyer in writing of such disagreement with the Closing Statement, which notice shall set forth any such disagreement in reasonable detail, the specific item of the Closing Statement and the calculation thereof to which such disagreement relates and the specific basis for each such disagreement (the “Objection Notice”). If Parent fails to deliver the Objection Notice within the Review Period, the Closing Statement and Buyer’s calculation thereof shall be deemed to have been accepted by the Sellers and shall be final and binding and used in computing the Post-Closing Adjustment Amounts. If Parent delivers the Objection Notice within the Review Period, subject to Section 2.08(d), Buyer and Parent shall negotiate in good faith to resolve any such disagreement, and any resolution agreed to in writing by Buyer and Parent shall be final and binding upon the Parties. (d) If Buyer and Parent are unable to resolve any disagreement as contemplated by Section 2.08(c) within thirty (30) days after delivery of the Objection Notice (the “Resolution Period”), then Buyer and Parent shall submit the matter for resolution to Ernst & Young LLP (or, if Ernst & Young LLP is unwilling or unavailable to accept such engagement, a mutually agreeable independent international accounting firm with substantial expertise in BR GAAP), who shall, acting as an expert (and not as an arbitrator), resolve the dispute set forth in the Objection Notice. In the event Ernst & Young LLP is unwilling or unavailable to accept such engagement and Buyer and Parent are unable to agree on an accounting firm within fifteen (15) days after being notified by Ernst & Young LLP that it is unwilling or unavailable to accept such engagement, at the request of either party, Buyer and Parent shall jointly request that the ICC International Centre for Expertise appoint an independent international accounting firm with substantial expertise in BR GAAP to resolve, as an expert (and not as an arbitrator), the dispute set forth in the Objection Notice (Ernst & Young LLP or the accounting firm appointed pursuant to this Section 2.08(d), the “Independent Auditor”). The fees, costs and expenses of the Independent Auditor (and, if applicable, the ICC International Centre for Expertise) shall be allocated between the Sellers and Buyer in proportion to the extent either Parent or Buyer did not prevail on the disputed items submitted for the Independent Auditor’s review. For the avoidance of doubt and solely as an illustration of the methodology set forth in the immediately preceding sentence, if (i) the Objection Notice delivered by Parent assigns values to the disputed items such that the Cash Purchase Price would be increased by $1,000,000, (ii) Buyer maintains that the Cash Purchase Price as calculated pursuant to the Closing Statement is correct and (iii) the Independent Auditor’s final resolution of the disputed items in accordance with Section 2.04 is that the Cash Purchase Price as calculated by Buyer in the Closing Statement is increased by $600,000 (i.e., sixty percent (60%) of the amount in dispute is resolved in favor of the Sellers), then forty percent (40%) of such fees and expenses of the Independent Auditor shall be paid by the Sellers and Buyer shall be responsible for sixty percent (60%) of such fees and expenses of the Independent Auditor. All other costs and expenses incurred by the Parties in connection with resolving any dispute hereunder before the Independent Auditor shall be borne by the Party incurring such cost and expense. (e) Parent and Buyer shall instruct the Independent Auditor to consider only those items and amounts which are identified in the Objection Notice as being items which Buyer and Parent are unable to resolve and to make a determination as to whether such items and amounts were calculated in accordance with the terms of this Agreement. Further, the Independent Auditor’s determination shall be based solely on the relevant Books and Records and the other written information provided by Buyer and Parent (i.e., not on the basis of an independent review), and the Independent Auditor shall not conduct additional discovery in any form. (f) Parent and Buyer shall jointly instruct the Independent Auditor to make a determination as soon as practicable (but in any case within thirty (30) days (or such other time as the Parties shall agree in writing) after its engagement) with respect to the disputed items submitted to the Independent Auditor and to what extent (if any) the Final Cash Purchase Price requires adjustment; provided that the failure to adhere to such thirty (30) day time limit shall not be a basis for challenging the Independent Auditor’s determination. The Independent Auditor shall provide the Parties with a written explanation in reasonable detail of each such required adjustment, including the basis therefor. All negotiations pursuant to this Section 2.08 through the end of the Resolution Period shall be treated as compromise and settlement negotiations for purposes of Rule 408 of the Federal Rules of Evidence and comparable state rules of evidence. Except as may be required by applicable Law or court order, the Parties agree to maintain confidentiality as to all aspects of any proceeding before the Independent Auditor, including its existence and results, except that nothing herein shall prevent any Party from disclosing information regarding such proceeding to a court of competent jurisdiction for purposes of enforcing this Section 2.08 or the Independent Auditor’s final determination. The Independent Auditor shall be bound by a mutually agreeable confidentiality agreement, which shall preserve the confidentiality of any proceeding before the Independent Auditor. The procedures of this Section 2.08 are exclusive and, except as set forth below, the determination of the Independent Auditor shall be final and binding on the Parties. The decision rendered pursuant to this Section 2.08(f) may be entered as a judgment in any court of competent jurisdiction. Either Parent or Buyer may seek specific enforcement or take other necessary legal action to enforce any decision under this Section 2.08(f), including pursuant to Article 76 of the New York Civil Practice Law and Rules. The only defense of either Parent or Buyer to such a request for specific enforcement or other legal action shall be fraud by or upon the Independent Auditor or manifest error. Absent such fraud or manifest error, Parent or Buyer, as applicable, shall reimburse the Party seeking enforcement for its expenses related to such enforcement.
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Samples: Stock Purchase Agreement, Stock Purchase Agreement (Mosaic Co)
Post-Closing Adjustment Procedures. (ai) As soon as reasonably practicableBuyer shall prepare (or cause to be prepared) and deliver to Seller, but in no event later than sixty seventy-five (6075) days after the Closing Date, Buyer shall prepare a written statement setting forth in reasonable detail its calculations of (A) Net Working Capital, Transaction Expenses, Cash and cause to be delivered to Parent a statement with its good faith determination (as certified by Buyer’s chief financial officer) Indebtedness of the Cash Purchase PriceCompany as of 12:01 a.m., which statement shall includeNew York City time, in reasonable detail, on the Closing Date and (i) Buyer’s calculation of the amounts for each of the adjustments set forth in Section 2.04(a), (iiB) the portion of the Cash Purchase Price allocable to each Selling Entity and (iii) the number of Buyer Shares allocable to each Seller Final NWC Adjustment (the “Closing Preliminary Statement”). The portion of the Cash Purchase Price allocable to each Selling Entity and the number of Buyer Shares allocable to each Seller Preliminary Statement shall be determined prepared in accordance with Section 6.09. Buyer shall provide a reasonable level of supporting documentation the Accounting Principles and, for the avoidance of doubt, no changes shall be made in any reserve or absence thereof existing as of the Closing Statement and Date except (1) as a result of events occurring after the Cash Purchase Price therein and Closing Date or (2) in the calculation event such reserve or absence thereof and was not established or omitted in accordance with the Accounting Principles and, in any additional information reasonably requested by Parent and related theretosuch event, only in accordance with the Accounting Principles.
(bii) Upon receipt During the thirty (30) days following delivery of the Closing Preliminary Statement, Parent Seller and its representatives authorized Representatives shall be permitted have reasonable access during normal business hours to the succeeding sixty (60) day period (the “Review Period”) reasonable accessfacilities, upon reasonable noticebooks and records, to (i) the Books personnel and Records in the possession of Buyer or any member accountants of the Company Group which would reasonably be expected (subject to be necessary the execution of customary access letters) for the preparation purpose of assessing the Preliminary Statement. Within such thirty (30) days, Seller may object to all or any part of the Closing Preliminary Statement and by delivering to Buyer a written notice (iian “Objections Statement”) the personnel of setting forth support for Seller’s position in reasonable detail. If Seller delivers an Objections Statement to Buyer, then Buyer and Seller shall use their respective good faith efforts to resolve the Company Group involved in the preparation of the Closing Statement and/or who would reasonably be expected to be necessary for the preparation thereof; provided, however, that the independent accountants of Buyer shall not be obligated to make any working papers available to Parent, unless and until Parent has signed a customary confidentiality and hold harmless agreement relating to such access to working papers in form and substance reasonably acceptable to such independent accountantsdisputed items.
(ciii) If Parent disagrees with the Closing Statement or the calculation of the Cash Purchase Price in the Closing Statement, on or prior Seller and Buyer fail to the last day of the Review Period, Parent shall notify Buyer in writing of such disagreement with the Closing Statement, which notice shall set forth any such disagreement in reasonable detail, the specific item of the Closing Statement and the calculation thereof to which such disagreement relates and the specific basis for each such disagreement (the “Objection Notice”). If Parent fails to deliver the Objection Notice within the Review Period, the Closing Statement and Buyer’s calculation thereof shall be deemed to have been accepted resolve all disputes raised by the Sellers and shall be final and binding and used in computing the Post-Closing Adjustment Amounts. If Parent delivers the Objection Notice within the Review Period, subject to Section 2.08(d), Buyer and Parent shall negotiate in good faith to resolve any such disagreement, and any resolution agreed to in writing by Buyer and Parent shall be final and binding upon the Parties.
(d) If Buyer and Parent are unable to resolve any disagreement as contemplated by Section 2.08(c) Objections Statement within thirty (30) days after delivery of the Objection Notice (the “Resolution Period”)to Buyer thereof, then either Seller or Buyer and Parent shall may submit the matter for resolution unresolved matters in dispute to Ernst Deloitte & Young Touche LLP (or, if Ernst & Young LLP such accounting firm is unwilling or unavailable unable to accept serve in such engagementcapacity, a mutually agreeable nationally recognized independent international accounting firm with substantial expertise in BR GAAPselected by Seller out of a list of three (3) other accounting firms of recognized national standing proposed by Buyer) (such firm, the “Accountant”), who shalland such Accountant shall consider only those items or amounts disputed by Seller in the Objections Statement which remain open. Seller and Buyer shall execute any agreement reasonably required by the Accountant for its engagement hereunder. The Accountant shall make a final, acting binding and non-appealable determination of the Net Working Capital, Transaction Expenses, Cash and Indebtedness of the Company as an expert of 12:01 a.m., New York City time, on the Closing Date (and not as an arbitrator), resolve solely to the dispute extent such amounts set forth in the Objection Notice. In Objections Statement remain in dispute) and deliver to Buyer and Seller a revised written statement, prepared in accordance with the Accounting Principles (no changes shall be made in any reserve or absence thereof existing as of the Closing Date except (1) as a result of events occurring after the Closing Date or (2) in the event Ernst & Young LLP is unwilling such reserve or unavailable absence thereof was not established or omitted in accordance with the Accounting Principles and, in any such event, only in accordance with the Accounting Principles), reflecting such determination. The fees and expenses of the Accountant shall be allocated to accept such engagement Seller and Buyer and Parent are unable based upon the percentage that the portion of the contested amount not awarded to agree on such Party bears to the amount contested (e.g., if Seller submits an accounting firm within fifteen (15) days after being notified by Ernst & Young LLP that it is unwilling or unavailable to accept such engagement, at the request of either partyObjections Statement for $1,000, Buyer contests $500 of such amount, and Parent shall jointly request that the ICC International Centre for Expertise appoint an independent international accounting firm with substantial expertise in BR GAAP to resolve, as an expert (and not as an arbitrator), Accountant resolves the dispute set forth in by awarding Seller $300, then the Objection Notice (Ernst & Young LLP or the accounting firm appointed pursuant to this Section 2.08(d), the “Independent Auditor”). The fees, costs and expenses of the Independent Auditor (and, if applicable, the ICC International Centre for Expertise) Accountant shall be allocated between the Sellers and Buyer in proportion to the extent either Parent or Buyer did not prevail on the disputed items submitted for the Independent Auditor’s review. For the avoidance of doubt and solely as an illustration of the methodology set forth in the immediately preceding sentence, if (i) the Objection Notice delivered by Parent assigns values to the disputed items such that the Cash Purchase Price would be increased by $1,000,000, (ii) Buyer maintains that the Cash Purchase Price as calculated pursuant to the Closing Statement is correct and (iii) the Independent Auditor’s final resolution of the disputed items in accordance with Section 2.04 is that the Cash Purchase Price as calculated by Buyer in the Closing Statement is increased by $600,000 60% (i.e., sixty percent 300/500) to Buyer and 40% (60%i.e., 200/500) of the amount in dispute is resolved in favor of the Sellersto Seller), then forty percent (40%) of such fees and expenses of the Independent Auditor shall be paid by the Sellers and Buyer shall be responsible for sixty percent (60%) of such fees and expenses of the Independent Auditor. All other costs and expenses incurred by the Parties in connection with resolving any dispute hereunder before the Independent Auditor shall be borne by the Party incurring such cost and expense.
(eiv) Parent The “Final Statement” shall be (A) the Preliminary Statement, in the event Seller notifies Buyer in writing of its acceptance of the Preliminary Statement or fails to timely submit an Objections Statement, (B) the written statement reflecting the mutual agreement of Seller and Buyer, in the event Seller and Buyer mutually agree to a resolution of all disputes raised in an Objections Statement or (C) the written statement prepared by the Accountant. The Final Statement shall instruct the Independent Auditor to consider only those items be binding, final and amounts which are identified in the Objection Notice as being items which Buyer and Parent are unable to resolve and to make a determination as to whether such items and amounts were calculated in accordance with the terms non-appealable for purposes of this Agreement. Further, the Independent Auditor’s determination shall be based solely on the relevant Books and Records and the other written information provided by Buyer and Parent (i.e., not on the basis of an independent review), and the Independent Auditor shall not conduct additional discovery in any form.
(f) Parent and Buyer shall jointly instruct the Independent Auditor to make a determination as soon as practicable (but in any case within thirty (30) days (or such other time as the Parties shall agree in writing) after its engagement) with respect to the disputed items submitted to the Independent Auditor and to what extent (if any) the Final Cash Purchase Price requires adjustment; provided that the failure to adhere to such thirty (30) day time limit shall not be a basis for challenging the Independent Auditor’s determination. The Independent Auditor shall provide the Parties with a written explanation in reasonable detail of each such required adjustment, including the basis therefor. All negotiations pursuant to this Section 2.08 through the end of the Resolution Period shall be treated as compromise and settlement negotiations for purposes of Rule 408 of the Federal Rules of Evidence and comparable state rules of evidence. Except as may be required by applicable Law or court order, the Parties agree to maintain confidentiality as to all aspects of any proceeding before the Independent Auditor, including its existence and results, except that nothing herein shall prevent any Party from disclosing information regarding such proceeding to a court of competent jurisdiction for purposes of enforcing this Section 2.08 or the Independent Auditor’s final determination. The Independent Auditor shall be bound by a mutually agreeable confidentiality agreement, which shall preserve the confidentiality of any proceeding before the Independent Auditor. The procedures of this Section 2.08 are exclusive and, except as set forth below, the determination of the Independent Auditor shall be final and binding on the Parties. The decision rendered pursuant to this Section 2.08(f) may be entered as a judgment in any court of competent jurisdiction. Either Parent or Buyer may seek specific enforcement or take other necessary legal action to enforce any decision under this Section 2.08(f), including pursuant to Article 76 of the New York Civil Practice Law and Rules. The only defense of either Parent or Buyer to such a request for specific enforcement or other legal action shall be fraud by or upon the Independent Auditor or manifest error. Absent such fraud or manifest error, Parent or Buyer, as applicable, shall reimburse the Party seeking enforcement for its expenses related to such enforcement.
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Post-Closing Adjustment Procedures. (a) As soon as reasonably practicable, but in no event later than sixty Within one hundred twenty (60120) days after the Closing Date, Buyer the Purchasers shall prepare and cause deliver to be delivered to Parent a statement with its good faith determination (as certified by Buyer’s chief financial officer) of the Cash Purchase Price, which statement shall include, in reasonable detail, Sellers:
(i) Buyer’s a balance sheet of the Company as of the Closing Date (the “Closing Balance Sheet”), prepared in accordance with GAAP and using the same accounting principles, policies, and methods as each Seller has historically used in connection with the calculation of the amounts for each of items reflected on the adjustments set forth in Section 2.04(a), Closing Balance Sheet; and
(ii) a final closing statement setting forth the portion of resulting proposed Adjusted Net Working Capital calculated with reference to the Cash Purchase Price allocable to each Selling Entity amounts shown on the Closing Balance Sheet (in its final and (iii) the number of Buyer Shares allocable to each Seller (binding form, the “Post-Closing Statement”). The portion of the Cash Purchase Price allocable to each Selling Entity and the number of Buyer Shares allocable to each Seller Post-Closing Statement shall be determined prepared in accordance with Section 6.09. Buyer GAAP and the terms of this Agreement and shall provide a reasonable level of supporting documentation be consistent with the methodology set forth in the September 30 Adjusted Net Working Capital Calculation for the Closing Statement and calculation of the Cash Purchase Price therein and the calculation thereof and any additional information reasonably requested by Parent and related theretoAdjusted Net Working Capital.
(b) Upon receipt of the Closing Statement, Parent and its representatives shall be permitted during the succeeding sixty (60) day period (the “Review Period”) reasonable access, upon reasonable notice, The Sellers may object in good faith to (i) the Books and Records in the possession of Buyer or any member of the Company Group which would reasonably be expected to be necessary for the preparation of the Post-Closing Statement and or (ii) the personnel Inventory Value Differential, provided that such objection is made in writing, states in reasonable detail their objections thereto, and is delivered within thirty (30) days after the delivery of Buyer the Post-Closing Statement or thirty (30) days after the delivery of the written notice described in Section 3.3(b)(iii) or (iv) from the Purchasers to the Sellers (the “Inventory Notice”), as the case may be. The Purchasers and Sellers agree to cooperate to exchange information used to prepare the Post-Closing Statement and to determine the Inventory Value Differential and information relating thereto. The Adjusted Net Working Capital as set forth in the Post-Closing Statement provided to Sellers and the Company Group involved Inventory Value Differential as set forth in the preparation Inventory Notice provided to Sellers shall become final and binding upon the Parties unless the Sellers give written notice of their disagreement (a “Notice of Disagreement”) to the Closing Statement and/or who would reasonably be expected Purchasers with regard to be necessary for either the preparation thereof; provided, however, that the independent accountants of Buyer shall not be obligated to make any working papers available to Parent, unless and until Parent has signed a customary confidentiality and hold harmless agreement relating to such access to working papers in form and substance reasonably acceptable to such independent accountants.
(c) If Parent disagrees with the Post-Closing Statement or the calculation of the Cash Purchase Price in the Closing Statement, on or prior to the last day of the Review Period, Parent shall notify Buyer in writing of such disagreement with the Closing Statement, which notice shall set forth any such disagreement in reasonable detail, the specific item of the Closing Statement and the calculation thereof to which such disagreement relates and the specific basis for each such disagreement (the “Objection Notice”). If Parent fails to deliver the Objection Inventory Notice within the Review Periodapplicable thirty (30) day period referenced above. Any Notice of Disagreement shall be issued in good faith and shall specify in reasonable detail the nature and Dollar amount of any disagreement so asserted. Following delivery of a Notice of Disagreement, each Party and its respective agents and representatives shall be permitted to review the Closing Statement other Party’s and Buyer’s calculation thereof its respective agents and representatives’ working papers relating to the Notice of Disagreement. To the extent any items are not disputed in a valid Notice of Disagreement, such items shall be deemed to have been accepted by the Sellers and shall be final and binding and used in computing the Post-Closing Adjustment AmountsSellers. If Parent delivers the Objection Sellers object with a timely Notice within of Disagreement, the Review PeriodParties shall attempt to resolve such dispute by negotiation, subject and to Section 2.08(d), Buyer and Parent shall negotiate in good faith the extent the Parties are unable to resolve any such disagreementdispute within twenty (20) days following delivery of a Notice of Disagreement or such later date as the Sellers and the Purchasers may agree, and any resolution agreed to in writing by Buyer and Parent then the disputed portion of the Adjusted Net Working Capital or the Inventory Value Differential shall be resolved in accordance with the provisions of Section 3.5. If a timely Notice of Disagreement is received by the Purchasers, then the disputed items (as revised in accordance with clause (x) or (y) below) shall become final and binding upon the PartiesParties on the earliest of (x) the date the Parties resolve in writing any differences they have with respect to the matters specified in the Notice of Disagreement, or (y) the date all matters in dispute are finally resolved in writing by the Independent Accounting Firm as set forth in Section 3.5 below.
(dc) If Buyer and Parent are unable it is finally determined that Sellers owe a payment to resolve any disagreement Purchasers due to the final Adjusted Net Working Capital or the Final Inventory Differential, as contemplated by Section 2.08(c) within thirty (30) days after delivery of the Objection Notice (the “Resolution Period”)applicable, then Buyer and Parent shall submit the matter for resolution to Ernst & Young LLP (or, if Ernst & Young LLP is unwilling or unavailable to accept such engagement, a mutually agreeable independent international accounting firm with substantial expertise in BR GAAP), who Sellers shall, acting as an expert within three (and not as an arbitrator), resolve 3) Business Days after the dispute set forth in Adjusted Net Working Capital or the Objection Notice. In the event Ernst & Young LLP is unwilling or unavailable to accept such engagement and Buyer and Parent are unable to agree on an accounting firm within fifteen (15) days after being notified by Ernst & Young LLP that it is unwilling or unavailable to accept such engagement, at the request of either party, Buyer and Parent shall jointly request that the ICC International Centre for Expertise appoint an independent international accounting firm with substantial expertise in BR GAAP to resolveFinal Inventory Differential, as an expert (and not as an arbitrator), the dispute set forth in the Objection Notice (Ernst & Young LLP or the accounting firm appointed pursuant to this Section 2.08(d), the “Independent Auditor”). The fees, costs and expenses of the Independent Auditor (and, if applicable, becomes binding on the ICC International Centre for Expertise) shall be allocated between the Sellers and Buyer in proportion Parties, make payment by wire transfer to the extent either Parent or Buyer did not prevail on the disputed items submitted for the Independent Auditor’s review. For the avoidance of doubt and solely as an illustration of the methodology set forth Purchasers in the immediately preceding sentence, if (i) the Objection Notice delivered by Parent assigns values to the disputed items such that the Cash Purchase Price would be increased by $1,000,000, (ii) Buyer maintains that the Cash Purchase Price as calculated pursuant to the Closing Statement is correct and (iii) the Independent Auditor’s final resolution of the disputed items in accordance with Section 2.04 is that the Cash Purchase Price as calculated by Buyer in the Closing Statement is increased by $600,000 (i.e., sixty percent (60%) available funds of the amount in dispute is resolved in favor of the Sellerssuch difference, together with interest thereon at a rate per annum equal to five percent (5%), then forty percent (40%) of such fees and expenses of the Independent Auditor shall be paid by the Sellers and Buyer shall be responsible for sixty percent (60%) of such fees and expenses of the Independent Auditor. All other costs and expenses incurred by the Parties in connection with resolving any dispute hereunder before the Independent Auditor shall be borne by the Party incurring such cost and expense.
(e) Parent and Buyer shall instruct the Independent Auditor to consider only those items and amounts which are identified in the Objection Notice as being items which Buyer and Parent are unable to resolve and to make a determination as to whether such items and amounts were calculated in accordance with the terms of this Agreement. Further, the Independent Auditor’s determination shall be based solely on the relevant Books and Records and the other written information provided by Buyer and Parent (i.e., not on the basis of an independent review)the actual number of days elapsed over 360, and from the Independent Auditor shall not conduct additional discovery in any form.
(f) Parent and Buyer shall jointly instruct the Independent Auditor to make a determination as soon as practicable (but in any case within thirty (30) days (or such other time as the Parties shall agree in writing) after its engagement) with respect Closing Date to the disputed items submitted date of payment. If it is finally determined that Purchasers owe a payment to Sellers due to the Independent Auditor and to what extent (if any) final Adjusted Net Working Capital or the Final Cash Purchase Price requires adjustment; provided that Inventory Differential, as applicable, then Purchasers shall, within three (3) Business Days after the failure to adhere to such thirty (30) day time limit shall not be a basis for challenging the Independent Auditor’s determination. The Independent Auditor shall provide the Parties with a written explanation in reasonable detail of each such required adjustment, including the basis therefor. All negotiations pursuant to this Section 2.08 through the end of the Resolution Period shall be treated as compromise and settlement negotiations for purposes of Rule 408 of the Federal Rules of Evidence and comparable state rules of evidence. Except as may be required by applicable Law or court order, the Parties agree to maintain confidentiality as to all aspects of any proceeding before the Independent Auditor, including its existence and results, except that nothing herein shall prevent any Party from disclosing information regarding such proceeding to a court of competent jurisdiction for purposes of enforcing this Section 2.08 Adjusted Net Working Capital or the Independent Auditor’s final determination. The Independent Auditor shall be bound by a mutually agreeable confidentiality agreementFinal Inventory Differential, which shall preserve the confidentiality of any proceeding before the Independent Auditor. The procedures of this Section 2.08 are exclusive andas applicable, except as set forth below, the determination of the Independent Auditor shall be final and becomes binding on the Parties. The decision rendered pursuant , make payment by wire transfer to this Section 2.08(f) may be entered as the Sellers in immediately available funds of the amount of such difference, together with interest thereon at a judgment in any court of competent jurisdiction. Either Parent or Buyer may seek specific enforcement or take other necessary legal action rate per annum equal to enforce any decision under this Section 2.08(ffive percent (5%), including pursuant to Article 76 calculated on the basis of the New York Civil Practice Law and Rules. The only defense actual number of either Parent or Buyer days elapsed over 360, from the Closing Date to such a request for specific enforcement or other legal action shall be fraud by or upon the Independent Auditor or manifest error. Absent such fraud or manifest error, Parent or Buyer, as applicable, shall reimburse the Party seeking enforcement for its expenses related to such enforcementdate of payment.
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