Working Capital True-Up. (a) At least two Business Days prior to the Closing, Sellers Representative shall deliver to Buyer the Month End Balance Sheet. If the Working Capital of the Subject Companies as calculated based on the Month End Balance Sheet and in accordance with Section 1.10 of the Disclosure Schedule (the “Estimated Working Capital”) is greater than or less than the Base Working Capital, then the Purchase Price shall be increased or decreased, as appropriate, at Closing on a dollar-for-dollar basis by the amount of such excess or deficit (such adjustment, the “Estimated True Up”). (b) As soon as practicable, but in any event no later than 60 days following the Closing Date, Buyer shall prepare and deliver to Sellers Representative (i) the Closing Balance Sheet, upon which a payment (the “Final True Up”) will be based and (ii) a written statement (the “Actual Statement”), prepared by the Chief Financial Officer of Buyer, certifying the amount of the Final True Up (which may be a positive or negative number) and setting forth the calculation of such amount. The Final True Up shall be an amount equal to (A) the actual amount of Working Capital of the Subject Companies on the Closing Date as determined based on the Closing Balance Sheet (the “Final Working Capital”), less (B) the Estimated Working Capital. If, within10 Business Days following delivery of the Closing Balance Sheet and the Actual Statement to Sellers Representative, Sellers Representative shall not have given Buyer notice of Sellers Representative’s objection to the computation of the Final True Up (which notice shall contain a statement of the basis of such objection), then the amount of Final True Up at the Closing Date will be final and binding upon the Parties, absent manifest error. If Sellers Representative gives notice to Buyer of Sellers Representative’s objection, and Buyer and Sellers Representative are unable to resolve the issues in dispute within 30 days after delivery of such notice of objection, such issues will be submitted for resolution to Gxxxx Xxxxxxxx LLP, independent certified public accountants, or such other nationally recognized firm of independent certified public accountants mutually selected by the Parties (the “Neutral Auditor”). The Neutral Auditor shall be engaged within 15 days after the expiration of the 30 day period set forth in the preceding sentence. The Neutral Auditor shall make such review and examination of the relevant facts and documents as the Neutral Auditor deems appropriate, and shall permit each of Buyer and Sellers Representative to make a written presentation of their respective positions; provided, however, that the Neutral Auditor shall require all facts, documents and written presentations from Buyer and Sellers Representative to be completely submitted within 30 days after the Neutral Auditor has been engaged. Within 30 days after submission of such facts, documents and written presentations, the Neutral Auditor shall resolve all disputed items in writing and shall prepare and deliver its decision, which shall be final and binding upon the Parties without further recourse or collateral attack and, as to each disputed matter, shall accept (x) either Buyer’s or Sellers Representative’s position on each disputed matter set forth in Seller Representative’s notice of objection provided pursuant to the fourth sentence of this Section 2.3(b) or (y) the stipulated position of Buyer and Sellers Representative with respect to any matter which prior to such stipulation was disputed. All costs of the dispute resolution process contemplated by this Section 2.3(b) (including, without limitation, the Neutral Auditor’s fees, but exclusive of attorneys’ fees) shall be borne by the Party who is the least successful in such process, which shall be determined by comparing (x) the position asserted by each Party on all disputed matters taken together to (y) the final decision of the Neutral Auditor on all disputed matters taken together. For purposes of the preceding sentence: the “disputed matters” shall be all matters raised in Sellers Representative’s notice of objection provided pursuant to the fourth sentence of this Section 2.3(b) and the “position asserted” by Sellers Representative shall be determined by reference to the notice of objection; and the “position asserted” by the Buyer shall be determined by reference to Buyer’s written presentation submitted pursuant to the sixth sentence of this Section 2.3(b). The Neutral Auditor shall not preside over any hearing of the Parties nor permit the Parties to make any oral arguments to the Neutral Auditor. (c) Within five Business Days of the completion of the computations required by Section 2.3(b), if the Final True Up is a positive number, it shall be paid by Buyer to Sellers Representative, on behalf and for the benefit of Sellers. If the Final True Up is a negative number, it shall be paid by Sellers to Buyer. Any such payments shall be made by wire transfer of immediately available funds. (d) The right to receive the positive Final True Up (or the obligation to pay the negative Estimated True Up and Final True Up) shall be allocated to each Seller in the manner determined by Sellers Representative and consistent with the Final Allocation pursuant to Section 10.13. Buyer and its Affiliates may conclusively and absolutely rely, without inquiry, upon Sellers Representative’s decisions regarding the proper allocation of such amounts to each Seller and each Seller agrees such decisions made by Sellers Representative shall be final and binding upon it. Each Seller agrees that Buyer shall have no Liability with respect to the payment of any positive Final True Up other than to pay any such amounts when due to Sellers Representative as determined in accordance with this Section 2.3. (e) Except as set forth in this Section 2.3, Buyer and Sellers shall bear their own expenses incurred in connection with the preparation and review of the Closing Balance Sheet and the Actual Statement.
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Working Capital True-Up. (a) At least two (2) Business Days prior to the Closing, Sellers Representative Seller shall deliver to Buyer the Month End Balance Sheet. If the Working Capital of the Subject Companies as calculated based on the Month End Balance Sheet and in accordance with Section 1.10 of the Disclosure Schedule 1.1(H) (the “"Estimated Working Capital”WC Amount") is greater than or less than the Base Working CapitalWC Amount, then the Purchase Price shall be increased or decreased, as appropriate, at Closing on a dollar-for-dollar basis by the amount of such excess or deficit (excess. If the Estimated WC Amount is less than the Base WC Amount, then the Purchase Price shall be decreased at Closing on a dollar-for-dollar basis by the amount of such adjustment, the “Estimated True Up”)deficit.
(b) As soon as practicable, but in any event no later than 60 thirty (30) days following the Closing Date, Buyer shall cause RACH to prepare and deliver to Sellers Representative Buyer and Seller (i) the Closing Balance Sheet, upon which a payment (the “Final "WC True Up”") will be based and (ii) a written statement (the “"Actual WC Statement”"), prepared by the Chief Financial Officer of BuyerRACH, certifying the amount of the Final WC True Up (Up, which may be a positive or negative number) , and setting forth the calculation of such amount. The Final WC True Up shall be an amount equal to (A) the actual amount of Working Capital of the Subject Companies on the Closing Date as determined based on the Closing Balance Sheet (the “Final Working Capital”)Sheet, less (B) the Estimated Working CapitalWC Amount. If, within10 within ten (10) Business Days following delivery of the Closing Balance Sheet and the Actual WC Statement to Sellers RepresentativeSeller, Sellers Representative Seller shall not have given Buyer notice of Sellers Representative’s Seller's objection to the computation of the Final WC True Up (which notice shall contain a statement of the basis of such objection), then the amount of Final WC True Up at the Closing Date will be final and binding upon the Parties, absent manifest error. If Sellers Representative Seller gives notice to Buyer of Sellers Representative’s Seller's objection, and Buyer and Sellers Representative Seller are unable to resolve the issues in dispute within 30 thirty (30) days after delivery of such notice of objection, such issues will be submitted for resolution to Gxxxx Xxxxxxxx PriceWaterhouseCoopers LLP, independent certified public accountants, or such other nationally recognized firm of "Big Four" independent certified public accountants mutually selected by the Parties (the “"Neutral Auditor”"). The Neutral Auditor shall be engaged within 15 fifteen (15) days after the expiration of the 30 thirty (30) day period set forth in the preceding sentence. The Neutral Auditor shall make such review and examination of the relevant facts and documents as the Neutral Auditor deems appropriate, and shall permit each of Buyer and Sellers Representative Seller to make a written presentation of their respective positions; provided, however, that the Neutral Auditor shall require all facts, documents and written presentations from Buyer and Sellers Representative Seller to be completely submitted within 30 thirty (30) days after the Neutral Auditor has been engaged. Within 30 thirty (30) days after submission of such facts, documents and written presentations, the Neutral Auditor shall resolve all disputed items in writing and shall prepare and deliver its decision, which shall be final and binding upon the Parties without further recourse or collateral attack and, as to each disputed matter, shall accept (x) either Buyer’s 's or Sellers Representative’s Seller's position on each disputed matter set forth in Seller Representative’s Seller's notice of objection provided pursuant to the fourth third sentence of this Section 2.3(b2.7(b) or (y) the stipulated position of Buyer and Sellers Representative Seller with respect to any matter which prior to such stipulation was disputed. All costs of the dispute resolution process contemplated by this Section 2.3(b2.7(b) (including, without limitation, the Neutral Auditor’s 's fees, but exclusive of attorneys’ ' fees) shall be borne by the Party who is the least successful in such process, which shall be determined by comparing (x) the position asserted by each Party on all disputed matters taken together to (y) the final decision of the Neutral Auditor on all disputed matters taken together. For purposes of the preceding sentence: the “"disputed matters” " shall be all matters raised in Sellers Representative’s Seller's notice of objection provided pursuant to the fourth third sentence of this Section 2.3(b2.7(b) and the “"position asserted” " by Sellers Representative Seller shall be determined by reference to the notice of objection; and the “"position asserted” " by the Buyer shall be determined by reference to Buyer’s 's written presentation submitted pursuant to the sixth sentence of this Section 2.3(b2.7(b). The Neutral Auditor shall not preside over any hearing of the Parties nor permit the Parties to make any oral arguments to the Neutral Auditor.
(c) Within five (5) Business Days of the completion of the computations required by Section 2.3(b2.7(b), if the Final WC True Up is a positive number, it shall be paid by Buyer to Sellers RepresentativeSeller, on behalf and for the benefit of Sellers. If the Final True Up if it is a negative number, it shall be paid by Sellers Seller to Buyer. Any such payments shall be made , in either case by wire transfer of immediately available funds. Any such payment shall be made in the manner provided for in Section 2.6.
(d) The right to receive the positive Final True Up (or the obligation to pay the negative Estimated True Up and Final True Up) shall be allocated to each Seller in the manner determined by Sellers Representative and consistent with the Final Allocation pursuant to Section 10.13. Buyer and its Affiliates may conclusively and absolutely rely, without inquiry, upon Sellers Representative’s decisions regarding the proper allocation of such amounts to each Seller and each Seller agrees such decisions made by Sellers Representative shall be final and binding upon it. Each Seller agrees that Buyer shall have no Liability with respect to the payment of any positive Final True Up other than to pay any such amounts when due to Sellers Representative as determined in accordance with this Section 2.3.
(e) Except as set forth in this Section 2.32.7, Buyer the Company and Sellers Seller shall each bear their its own expenses incurred in connection with the preparation and review of the Closing Balance Sheet and the Actual WC Statement.
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Samples: Stock Purchase Agreement (Foundation Coal Holdings, Inc.)
Working Capital True-Up. (a) At least two Business Days prior Within 60 days after the Closing Date, Purchaser will prepare and deliver or cause to be prepared and delivered to the Seller Representative a balance sheet of STAR LP as of the close of business on August 31, 2007 (the "Closing Date Balance Sheet") and a proposed statement of the Net Working Capital of STAR LP prepared therefrom (the "Closing Statement"), in each case, without giving effect to the transactions described in this Agreement to be consummated at the Closing, Sellers Representative other than the payment at Closing of the Closing Date Funded Indebtedness, if any, which shall deliver to Buyer be treated as paid as of the Month End Effective Time. The Closing Date Balance Sheet. If Sheet and the Closing Statement (i) will reflect, respectively, the financial position of STAR LP and the components and calculation of the Net Working Capital of STAR LP and (ii) will be prepared and determined as of the Subject Companies as calculated based close of business on the Month End Balance Sheet and August 31, 2007, in accordance with Section 1.10 GAAP applying the same accounting principles, policies, and practices that were used in preparing the Reference Financial Statements. The Net Working Capital of STAR LP as of the Disclosure Schedule (close of business on August 31, 2007, determined in accordance with this Section 3.3 is referred to herein as the “Estimated "Closing Working Capital”) is greater than or less than the Base Working Capital, then the Purchase Price shall be increased or decreased, as appropriate, at Closing on a dollar-for-dollar basis by the amount of such excess or deficit (such adjustment, the “Estimated True Up”)Capital Balance."
(b) As soon as practicableIf, but in any event no later than 60 within 30 days following after the date of Purchaser's delivery of the Closing DateDate Balance Sheet and the Closing Statement, Buyer shall prepare Seller Representative determines in good faith that the Closing Date Balance Sheet and deliver the Closing Statement have not been prepared or determined in accordance with this Agreement, Seller Representative will give written notice to Sellers Representative Purchaser within such 30 day period (i) setting forth Seller Representative's proposed changes to the Closing Date Balance Sheet, upon which a payment (Sheet as prepared by Purchaser and the “Final True Up”) will be based determination by Seller Representative of the Closing Working Capital Balance and (ii) a written statement (the “Actual Statement”), prepared by the Chief Financial Officer specifying in reasonable detail Seller Representative's basis for disagreement with Purchaser's preparation and determination of Buyer, certifying the amount of the Final True Up (which may be a positive or negative number) and setting forth the calculation of such amount. The Final True Up shall be an amount equal to (A) the actual amount of Working Capital of the Subject Companies on the Closing Date as determined based on the Closing Balance Sheet (the “Final Working Capital”), less (B) the Estimated Working Capital. If, within10 Business Days following delivery of the Closing Balance Sheet and the Actual Statement Closing Working Capital Balance. The failure by Seller Representative to Sellers Representative, Sellers Representative shall not have given Buyer so express disagreement and provide such notice within such 30 day period will constitute the acceptance of Sellers Representative’s objection to Purchaser's preparation of the Closing Date Balance Sheet and the computation of the Final True Up (which notice shall contain a statement of the basis of such objection), then the amount of Final True Up at the Closing Date will be final and binding upon the Parties, absent manifest errorWorking Capital Balance. If Sellers Representative gives notice to Buyer of Sellers Representative’s objection, Purchaser and Buyer and Sellers Seller Representative are unable to resolve any disagreement between them with respect to the issues in dispute within 30 days after delivery preparation of such notice the Closing Date Balance Sheet and the determination of objection, such issues will be submitted for resolution to Gxxxx Xxxxxxxx LLP, independent certified public accountants, or such other nationally recognized firm of independent certified public accountants mutually selected by the Parties (the “Neutral Auditor”). The Neutral Auditor shall be engaged Closing Working Capital Balance within 15 days after the giving of notice by Seller Representative to Purchaser of such disagreement, the items in dispute will be referred for determination to the Nashville office of Crowe Chizek and Company LLC (or, if they are unable or unwillinx xx sxxxx, another nationally or regionally recognized accounting firm not affiliated with STAR LP, the Sellers or Purchaser) (the "Accountants") as promptly as practicable, but not later than five days after the expiration of the 30 such 15 day period set forth in the preceding sentenceperiod. The Neutral Auditor shall make such review and examination Each of the relevant facts Purchaser and documents Seller Representative shall provide the Accountants with a statement of its position within fifteen (15) days from the date of the referral. Each party shall submit, in writing, detailed briefs to the Accountants setting forth their position as to the Neutral Auditor deems appropriateamount of each item remaining in dispute with respect to the calculation of Closing Working Capital Balance, and the Accountants shall permit each of Buyer and Sellers Representative to make a written presentation of their respective positions; provided, however, that the Neutral Auditor shall require all facts, documents and written presentations from Buyer and Sellers Representative to be completely submitted determination as promptly as practicable but in any event within 30 thirty (30) days after the Neutral Auditor has been engageddate on which the dispute is referred to the Accountants by selecting from the position of either Purchaser or Seller Representative. Within 30 days after submission Neither Purchaser nor the Seller Representative shall be entitled to respond to the brief provided by the other party to the Accountants. The Accountants shall be authorized to select only the calculation of such facts, documents Closing Working Capital Balance as presented by Purchaser and written presentations, the Neutral Auditor shall resolve all disputed items in writing Seller Representative and shall prepare not select any other amount as the calculation of Closing Working Capital Balance. The costs and deliver its decisionexpenses of the Accountants shall be borne by the party against whom the arbitration is decided. No party will disclose to the Accountants, which and the Accountants will not consider for any purpose, any settlement discussions or settlement offer made by any Party. The calculation of Closing Working Capital Balance as finally determined in accordance with the terms of this Section 3.3 shall be the "Closing Working Capital Balance" and such decision of the Accountants shall be final and binding upon on the Parties without further recourse or collateral attack and, as to each disputed matter, shall accept (x) either Buyer’s or Sellers Representative’s position on each disputed matter set forth in Seller Representative’s notice of objection provided pursuant to the fourth sentence of this Section 2.3(b) or (y) the stipulated position of Buyer and Sellers Representative with respect to any matter which prior to such stipulation was disputed. All costs of the dispute resolution process contemplated by this Section 2.3(b) (including, without limitation, the Neutral Auditor’s fees, but exclusive of attorneys’ fees) shall be borne by the Party who is the least successful in such process, which shall be determined by comparing (x) the position asserted by each Party on all disputed matters taken together to (y) the final decision of the Neutral Auditor on all disputed matters taken together. For purposes of the preceding sentence: the “disputed matters” shall be all matters raised in Sellers Representative’s notice of objection provided pursuant to the fourth sentence of this Section 2.3(b) Purchaser and the “position asserted” by Sellers Seller Representative shall be determined by reference to the notice (on behalf of objection; and the “position asserted” by the Buyer shall be determined by reference to Buyer’s written presentation submitted pursuant to the sixth sentence of this Section 2.3(ball Sellers). The Neutral Auditor shall not preside over any hearing of the Parties nor permit the Parties to make any oral arguments to the Neutral Auditor.
(c) Within five Business Days Upon the final determination of the completion of Closing Working Capital Balance, the computations required by Section 2.3(b)Parties shall make the following adjustments:
(i) If the Closing Working Capital Balance exceeds the Estimated Closing Working Capital Balance and the Estimated Working Capital Balance was less than the Target Working Capital Balance, if then Purchaser will pay to the Final True Up is a positive number, it shall be paid by Buyer to Sellers Representative, Seller Representative (on behalf and for of all Sellers) the benefit amount of Sellers. such difference, but in no event in an amount greater than the Estimated Working Capital Adjustment computed pursuant to Section 3.2(b).
(ii) If the Final True Up Closing Working Capital Balance is a negative numberless than the Estimated Closing Working Capital Balance, it shall be paid by then the Sellers will pay to Buyer. Purchaser the amount of such difference.
(d) Any such payments shall payment in respect of an adjustment required to be made under this Section 3.3(c) will be made by the Sellers or Purchaser, as applicable, in cash by wire transfer of immediately available funds.
funds to one account specified by Purchaser or Seller Representative, as applicable, in writing, prior to the date such payment is required to be made hereunder. Such payment will be made within five (d5) Business Days following the final determination of the Closing Working Capital Balance. The right Sellers shall be jointly and severally liable for any payment due Purchaser under Section 3.3(c), and to receive the positive Final True Up extent not otherwise promptly satisfied by the Sellers in cash, Purchaser may (or but is not required) to set-off amounts due and owing by Purchaser under the obligation Notes to pay satisfy any amounts due Purchaser pursuant to Section 3.3(c). Any payment due to the negative Estimated True Up and Final True UpSeller Representative under Section 3.3(c) shall be allocated to each Seller in the manner determined by Sellers Representative and consistent with the Final Allocation pursuant to Section 10.13. Buyer and its Affiliates may conclusively and absolutely rely, without inquiry, upon Sellers Representative’s decisions regarding the proper allocation of such amounts to each Seller and each Seller agrees such decisions made by Sellers Representative shall be final and binding upon it. Each Seller agrees that Buyer shall have no Liability with respect paid to the payment Sellers based on their relative Sharing Percentages (less any fees and expenses incurred by the Seller Representative in performance on behalf of any positive Final True Up other than to pay any such amounts when due to Sellers Representative as determined in accordance with this Section 2.3the Sellers).
(e) Except By execution of this Agreement, each of the Sellers hereby appoints, without further act of any Seller, Swanson as set forth the Seller representative ("Seller Representative"), xx xxxxt and attorney-in-fact of each of the Sellers, with full power and authority, including power of substitution, acting in the name of and for and on behalf of such Seller and to, in Seller Representative's sole discretion: (i) resolve any dispute with Buyer over any aspect of this Section 2.33.3; (ii) give and receive notices and communications with respect to this Section 3.3 and Section 8.4; (iii) agree to, Buyer negotiate, enter into settlements and compromises of, and arbitration and comply with orders and awards of arbitrators in respect of any claim or dispute under this Section 3.3; (iv) enter into any agreement to effectuate any of the foregoing items (i)-(iii) which shall have the effect of binding each Seller as if such Seller had personally entered into such agreement(s), taken such actions or refrained from taking such actions described in items (i)-(iv) above; (v) do all other things and take all other action under or related to this Section 3.3 or the other agreements contemplated under this Section 3.3 that Seller Representative may consider necessary or proper to effectuate any of the foregoing. Notwithstanding the foregoing, all actions taken or decisions made by the Seller Representative on behalf of the Sellers shall bear their own expenses incurred be evidenced by a writing signed by the Seller Representative and shall be taken or made in connection a manner that is ratable and equitable among such Sellers. This appointment and power of attorney shall be deemed as coupled with an interest and all authority conferred hereby shall be irrevocable and shall not be subject to termination by operation of law, whether by the preparation and review death or incapacity or liquidation or dissolution of any Seller or the Closing Balance Sheet occurrence of any other event or events and the Actual StatementSeller Representative may not terminate this power of attorney with respect to any Seller or such Seller's successors or assigns without the consent of Purchaser. Each Seller agrees to hold the Seller Representative harmless and indemnify the Seller Representative, with respect to any and all loss, damage or liability and expenses (including reasonable legal fees) which such Seller may sustain as a result of any action taken in good faith by the Seller Representative.
Appears in 1 contract
Samples: Reorganization and Purchase Agreement (U S Physical Therapy Inc /Nv)
Working Capital True-Up. (a) At least two Business Days prior to the Closing, Sellers Representative shall deliver to Buyer Alpha the Month End Balance Sheet. If the Working Capital of the Subject Companies Company as calculated based on the Month End Balance Sheet and in accordance with Section 1.10 of the Disclosure Schedule (the “Estimated Working Capital”) is greater than or less than the Base Working Capital, then the Purchase Price Cash Consideration shall be increased or decreased, as appropriate, at Closing by a cash payment by wire transfer of immediately available funds from Sellers Representative, on behalf and for the benefit of Shareholders, to Parent or Parent to Sellers Representative, on behalf and for the benefit of Shareholders, on a dollar-for-dollar basis by the amount of such excess or deficit (such adjustment, the “Estimated True Up”).
(b) As soon as practicable, but in any event no later than 60 days following the Closing Date, Buyer Parent shall prepare and deliver to Sellers Representative (i) the Closing Balance Sheet, upon which a payment (the “Final True Up”) will be based and (ii) a written statement (the “Actual Statement”), prepared by the Chief Financial Officer of BuyerParent, certifying the amount of the Final True Up (which may be a positive or negative number) and setting forth the calculation of such amount. The Final True Up shall be an amount equal to (A) the actual amount of Working Capital of the Subject Companies Company on the Closing Date as determined based on the Closing Balance Sheet (the “Final Working Capital”), less (B) the Estimated Working Capital. If, within10 within 10 Business Days following delivery of the Closing Balance Sheet and the Actual Statement to Sellers Representative, Sellers Representative shall not have given Buyer Parent notice of Sellers Representative’s objection to the computation of the Final True Up (which notice shall contain a statement of the basis of such objection), then the amount of Final True Up at the Closing Date will be final and binding upon the Parties, absent manifest error. If Sellers Representative gives notice to Buyer Parent of Sellers Representative’s objection, and Buyer Parent and Sellers Representative are unable to resolve the issues in dispute within 30 days after delivery of such notice of objection, such issues will be submitted for resolution to Gxxxx Xxxxxxxx LLP, independent certified public accountants, or such other nationally recognized firm of independent certified public accountants mutually selected by the Parties (the “Neutral Auditor”). The Neutral Auditor shall be engaged within 15 days after the expiration of the 30 day period set forth in the preceding sentence. The Neutral Auditor shall make such review and examination of the relevant facts and documents as the Neutral Auditor deems appropriate, and shall permit each of Buyer Parent and Sellers Representative to make a written presentation of their respective positions; provided, however, that the Neutral Auditor shall require all facts, documents and written presentations from Buyer Parent and Sellers Representative to be completely submitted within 30 days after the Neutral Auditor has been engaged. Within 30 days after submission of such facts, documents and written presentations, the Neutral Auditor shall resolve all disputed items in writing and shall prepare and deliver its decision, which shall be final and binding upon the Parties without further recourse or collateral attack and, as to each disputed matter, shall accept (x) either BuyerParent’s or Sellers Representative’s position on each disputed matter set forth in Seller Shareholder Representative’s notice of objection provided pursuant to the fourth sentence of this Section 2.3(b2.4(b) or (y) the stipulated position of Buyer Parent and Sellers Representative with respect to any matter which prior to such stipulation was disputed. All costs of the dispute resolution process contemplated by this Section 2.3(b2.4(b) (including, without limitation, the Neutral Auditor’s fees, but exclusive of attorneys’ fees) shall be borne by the Party who is the least successful in such process, which shall be determined by comparing (x) the position asserted by each Party on all disputed matters taken together to (y) the final decision of the Neutral Auditor on all disputed matters taken together. For purposes of the preceding sentence: the “disputed matters” shall be all matters raised in Sellers Representative’s notice of objection provided pursuant to the fourth sentence of this Section 2.3(b2.4(b) and the “position asserted” by Sellers Representative shall be determined by reference to the notice of objection; and the “position asserted” by the Buyer Parent shall be determined by reference to BuyerParent’s written presentation submitted pursuant to the sixth sentence of this Section 2.3(b2.4(b). The Neutral Auditor shall not preside over any hearing of the Parties nor permit the Parties to make any oral arguments to the Neutral Auditor.
(c) Within five Business Days of the completion of the computations required by Section 2.3(b2.4(b), if the Final True Up is a positive number, it shall be paid by Buyer Parent to Sellers Representative, on behalf and for the benefit of SellersShareholders. If the Final True Up is a negative number, it shall be paid by Sellers Representative, on behalf and for the benefit of Shareholders to BuyerParent. Any such payments shall be made by wire transfer of immediately available funds.
(d) The right to receive the positive Final True Up (or the obligation to pay the negative Estimated True Up and Final True Up) shall be allocated to each Seller Shareholder in the manner determined by Sellers Representative and consistent with the Final Allocation pursuant to Section 10.13Representative. Buyer Parent and its Affiliates may conclusively and absolutely rely, without inquiry, upon Sellers Representative’s decisions regarding the proper allocation of such amounts to each Seller Shareholder and each Seller Shareholder agrees such decisions made by Sellers Representative shall be final and binding upon it. Each Seller Shareholder agrees that Buyer Alpha and Parent shall have no Liability with respect to the payment of any positive Final True Up other than to pay any such amounts when due to Sellers Representative as determined in accordance with this Section 2.32.4.
(e) Except as set forth in this Section 2.32.4, Buyer Parent and Sellers Shareholders shall bear their own expenses incurred in connection with the preparation and review of the Closing Balance Sheet and the Actual Statement.
Appears in 1 contract