Closing Working Capital. (a) At least three Business Days prior to the Closing Date, the Company will deliver to Buyer a certificate setting forth the Company’s good faith estimate of Closing Working Capital calculated in accordance with this Agreement and the Accounting Policies (“Estimated Closing Working Capital”), together with reasonable documentation evidencing such calculation. If Buyer disagrees in good faith with the calculation of Estimated Closing Working Capital, Seller will in good faith negotiate a resolution of such disagreement, provided that if Buyer and Seller fail to reach a resolution prior to the Closing, Seller’s calculation of Estimated Closing Working Capital will be used for purposes of determining the Purchase Price to be paid by Buyer pursuant to Section 2.02(b); provided further that in no event will the consummation of the Closing be construed as a waiver by Buyer under this Section 2.03. (b) As promptly as practicable, but no later than 90 days, after the Closing Date, Buyer will cause to be prepared and delivered to Seller (i) a certificate setting forth Buyer’s calculations of Closing Working Capital and (ii) a statement setting forth (x) the differences between the certificate delivered by Buyer pursuant to clause (i) of this sentence and the certificate delivered by the Company pursuant to Section 2.03(a) and (y) a description, accompanied by supporting documentation, of the basis for such differences. The Closing Working Capital will (i) fairly present the Working Capital of the Company as of 11:59 p.m. (Eastern time) on the date that is the last day prior to the Closing Date in accordance with the Accounting Policies, and (ii) only include line items set forth in Exhibit A. Buyer will, and will cause the Company to, (x) provide Seller and its representatives with reasonable access, upon reasonable prior written notice by Seller, during normal business hours to the books, records (including work papers, schedules, memoranda and other documents), supporting data and employees of the Company to the extent related to the certificate and statement delivered by Buyer pursuant to this Section 2.03(b) for purposes of Seller’s review of the certificate and statement delivered by Buyer pursuant to this Section 2.03(b) and (y) reasonably cooperate with Seller and its representatives in connection with such review. (c) Seller and its accountants will have 60 days after delivery of the certificate and statement referred to in the first sentence of Section 2.03(b) to review such documents; provided that if, during such 60-day period, Buyer or the Company fails to furnish or provide access to any documents or information requested by Seller for purposes of Seller’s review (to the extent required to be provided or furnished pursuant to clause (x) of the last sentence of Section 2.03(b)) within five Business Days of Seller’s written request therefor, such 60-day period will be extended by the number of days between the date of Seller’s written request and the date on which Buyer or the Company furnishes or provides access to such documents or information to Seller or its representatives. If Seller disagrees with Buyer’s calculation of Closing Working Capital delivered pursuant to Section 2.03(b), Seller may, within 60 days after delivery of such calculation (as such period may be extended pursuant to the preceding sentence), deliver a notice to Buyer disagreeing with such calculation and specifying Seller’s calculation of such amounts and, in reasonable detail, Seller’s grounds for such disagreement. Any such notice of disagreement will specify those items or amounts as to which Seller disagrees, and Seller will be deemed to have agreed with all other items and amounts contained in the calculations of Closing Working Capital delivered pursuant to Section 2.03(b). (d) If a notice of disagreement is duly delivered pursuant to Section 2.03(c), Buyer and Seller will, during the 15 days following such delivery (as such period may be extended pursuant to a written agreement between Buyer and Seller), use their commercially reasonable efforts to reach agreement on the disputed items or amounts in order to determine, as may be required, the amounts of Closing Working Capital; provided that such amount of Closing Working Capital will not be less than the amount thereof shown in Buyer’s calculations delivered pursuant to Section 2.03(b) or more than the amount thereof shown in Seller’s calculations delivered pursuant to Section 2.03(c). If Buyer and Seller are unable to reach such agreement during such period, they will promptly cause a mutually agreed independent accounting firm of nationally recognized standing (the “Accounting Firm”) to review this Agreement and the disputed items or amounts for the purpose of calculating Closing Working Capital. In making such calculations, the Accounting Firm will (i) act as an arbitrator, not as an expert, (ii) consider only those items or amounts in Buyer’s calculations of Closing Working Capital as to which Seller has disagreed and (iii) not consider or review any settlement (or similar) offers made by Buyer or Seller in connection herewith. The Accounting Firm will deliver to Buyer and Seller, as promptly as practicable, a report setting forth such calculations, including an explanation for its determination of the amount of each disputed item or amount determined therein. Such report will be final and binding upon Buyer and Seller. The cost of such review and report will be borne equally by Buyer, on the one hand, and Seller, on the other hand. Neither Buyer nor Seller will have, directly or indirectly, any ex parte communications or meetings with the Accounting Firm concerning matters within the scope of its engagement. Buyer and Seller agree that they will, and agree to cause their respective independent accountants and the Company to, cooperate and assist in the calculations of Closing Working Capital and in the conduct of any reviews referred to in this Section 2.03, including making available to the extent necessary books, records, work papers and personnel. (e) Neither Section 2.03 nor Section 2.04 is intended to be used to adjust for errors or omissions that may be found with respect to the Balance Sheet or any inconsistencies between the Balance Sheet or the Accounting Policies, on the one hand, and GAAP, on the other, for which the R&W Insurance Policy will be the sole and exclusive remedy, subject to Section 8.03.
Appears in 1 contract
Sources: Stock Purchase Agreement (American Water Works Company, Inc.)
Closing Working Capital. (a) At least three Business Days prior to the Closing Date, the Company will deliver to Buyer a certificate setting forth the Company’s good faith estimate of Closing Working Capital calculated in accordance with this Agreement and the Accounting Policies (“Estimated Closing Working Capital”), together with reasonable documentation evidencing such calculation. If Buyer disagrees in good faith with the calculation of Estimated Closing Working Capital, Seller will in good faith negotiate a resolution of such disagreement, provided that if Buyer and Seller fail to reach a resolution prior to the Closing, Seller’s calculation of Estimated Closing Working Capital will be used for purposes of determining the Purchase Price to be paid by Buyer pursuant to Section 2.02(b); provided further that in no event will the consummation of the Closing be construed as a waiver by Buyer under this Section 2.03.
(b) As promptly as practicable, but no not later than 90 days, thirty (30) days after the Closing Date, Buyer Parent will cause to be prepared and delivered to Seller the Stockholder Representative a consolidated balance sheet, giving effect to the Stock Dispositions, of Company and its Subsidiaries as of the Closing Date (ithe "Closing Balance Sheet") and a certificate based on the Closing Balance Sheet setting forth Buyer’s calculations in reasonable detail Parent's calculation of the Closing Working Capital and the Net Cash on Hand (iithe "Closing Net Cash On Hand") a statement setting forth as of the Closing Date (x) the differences between the certificate delivered by Buyer pursuant to clause "Closing Working Capital Certificate"). The Closing Balance Sheet shall (i) include the consolidated financial position of this sentence Company and the certificate delivered by the Company pursuant to Section 2.03(a) and (y) a description, accompanied by supporting documentation, of the basis for such differences. The Closing Working Capital will (i) fairly present the Working Capital of the Company as of 11:59 p.m. (Eastern time) on the date that is the last day prior to the Closing Date in accordance with the Accounting Policies, its Subsidiaries and (ii) only include line items set present the consolidated financial position of Company and its Subsidiaries as at the close of business on the Closing Date. The Closing Balance Sheet and the Closing Working Capital Certificate shall be prepared using the Agreed Accounting Principles.
(b) The Closing Balance Sheet and the Closing Working Capital Certificate delivered pursuant to Section 3.6(a) shall be deemed final, absent fraud, bad faith, willful misconduct or manifest error in the preparation thereof, upon the earliest of (i) the date on which Parent and the Stockholder Representative agree that such documents are final, (ii) the 30th day after receipt of such documents pursuant to Section 3.6(a), if the Stockholder Representative has not delivered a notice that expresses a disagreement with the Closing Balance Sheet, the Closing Working Capital Certificate or the Closing Working Capital or the calculations thereof and setting forth in Exhibit A. Buyer willtheir calculation of such amount(s), and will cause (iii) the Company to, (x) provide Seller date on which all disputes relating to such statements and its representatives calculations between the Parties are resolved in accordance with reasonable access, upon reasonable prior written Section 3.6(c). If the Stockholder Representative delivers a notice by Seller, during normal business hours to the books, records (including work papers, schedules, memoranda and other documents), supporting data and employees of the Company to the extent related to the certificate and statement delivered by Buyer disagreement pursuant to this Section 2.03(b) for purposes of Seller’s review of the certificate and statement delivered by Buyer pursuant to this Section 2.03(b) and (y) reasonably cooperate with Seller and its representatives in connection with such review.
(c) Seller and its accountants will have 60 days after delivery of the certificate and statement referred to in the first sentence of Section 2.03(b) to review such documents; provided that if, during such 60-day period, Buyer or the Company fails to furnish or provide access to any documents or information requested by Seller for purposes of Seller’s review (to the extent required to be provided or furnished pursuant to clause (x) of the last sentence of Section 2.03(b3.6(b)) within five Business Days of Seller’s written request therefor, such 60-day period will be extended by the number of days between the date of Seller’s written request and the date on which Buyer or the Company furnishes or provides access to such documents or information to Seller or its representatives. If Seller disagrees with Buyer’s calculation of Closing Working Capital delivered pursuant to Section 2.03(b), Seller may, within 60 days after delivery of such calculation (as such period may be extended pursuant to the preceding sentence), deliver a notice to Buyer disagreeing with such calculation and specifying Seller’s calculation of such amounts and, in reasonable detail, Seller’s grounds for such disagreement. Any such notice of disagreement will shall specify those items or amounts as to which Seller disagrees, and Seller will be deemed to have agreed with all other items and amounts contained in the calculations of Closing Working Capital delivered pursuant to Section 2.03(b)they disagree.
(dc) If the Stockholder Representative delivers a notice of disagreement is duly delivered pursuant to Section 2.03(c3.6(b), Buyer the Stockholder Representative and Seller willParent shall, during the 15 30 days following such delivery (as such period may be extended pursuant to a written agreement between Buyer and Seller)delivery, use their commercially reasonable efforts to reach agreement on the disputed items or amounts in order to determine(the "Disputed Amounts"). If, as may be requiredduring such period, the amounts of Closing Working Capital; provided that such amount of Closing Working Capital will not be less than the amount thereof shown in Buyer’s calculations delivered pursuant to Section 2.03(b) or more than the amount thereof shown in Seller’s calculations delivered pursuant to Section 2.03(c). If Buyer Stockholder Representative and Seller Parent are unable to reach such agreement during such periodagreement, they will shall promptly thereafter cause a mutually agreed PriceWaterhouseCoopers (or if said firm shall be unwilling to act thereunder, such other independent accounting firm public accountants of nationally recognized standing (reasonably satisfactory to Parent and the “Accounting Firm”) Stockholder Representative), promptly to review this Agreement Agreement, the documents delivered pursuant to Section 3.6(a) and any other documents necessary to calculate the disputed items or amounts for Disputed Amounts (including all work papers of the purpose of Parties used in calculating Closing Working Capitalthe Disputed Amounts). In making such calculationscalculation, the Accounting Firm will (i) such independent accountants shall act as an arbitrator, not as an expert, (ii) consider only those items or amounts in Buyer’s calculations of Closing Working Capital as to which Seller has disagreed and (iii) not consider or review any settlement (or similar) offers made by Buyer or Seller in connection herewitharbitrators. The Accounting Firm will Such independent accountants shall deliver to Buyer the Stockholder Representative and SellerParent, as promptly as practicablepracticable and in any event no later than 90 days after their engagement, a report setting forth such calculations, including an explanation for its determination of the amount of each disputed item or amount determined thereincalculation. Such report will shall be final and binding upon Buyer the stockholders of Company and SellerParent, absent fraud, bad faith, willful misconduct or manifest error in the preparation thereof. The cost of such review and report will shall be (i) deducted from either the InterCall Fund or the ITC Operations Fund, as Parent may determine in its sole discretion, in accordance with the terms of the Escrow Agreement, if the difference between the Closing Working Capital shown in the independent accountants' calculation and the Stockholder Representative's calculation of the Closing Working Capital delivered pursuant to Section 3.6(b) is greater than the difference between the Closing Working Capital shown in the independent accountants' calculation and Parent's calculation of the Closing Working Capital delivered pursuant to Section 3.6(a), (ii) borne by Parent if the difference between the Closing Working Capital shown in the independent accountants' calculation and Parent's calculation of the Closing Working Capital delivered pursuant to Section 3.6(a) is greater than the difference between the Closing Working Capital shown in the independent accountants' calculation and the Stockholder Representative's calculation of the Closing Working Capital delivered pursuant to Section 3.6(b), and (iii) otherwise borne equally by Buyerthe stockholders of Company, through a deduction from either the InterCall Fund or the ITC Operations Fund, as Parent may determine in its sole discretion, in accordance with the terms of the Escrow Agreement, and Parent.
(d) The independent accountants shall have jurisdiction to decide any and all issues presented to it that arise out of or relate to this Section 3.6 or the transactions contemplated hereby, including the issue of whether or not the independent accountants have jurisdiction to decide any particular dispute controversy or claim. The arbitration shall be held in ▇▇▇▇ County, Georgia. The governing Law shall be as set forth in Section 13.8 of this Agreement and the parties' consent to the jurisdiction of the courts identified in Section 13.8 of this Agreement for all purposes in connection with the arbitration, including (i) enforcement of the arbitration award and (ii) issuance of provisional remedies to protect rights, interests, assets or property, including but not limited to temporary or preliminary injunctive relief, to ensure ultimate satisfaction of the arbitration award. The parties agree that the award made by the independent accountants shall be final and binding on the one handparties and that they waive any right to appeal the arbitral award, to the extent an appeal may be lawfully waived.
(e) The Stockholder Representative and Seller, on the other hand. Neither Buyer nor Seller will have, directly or indirectly, any ex parte communications or meetings with the Accounting Firm concerning matters within the scope of its engagement. Buyer and Seller Parent agree that they will, and agree to will cause their respective independent accountants and the Company Entities to, cooperate and assist in the calculations preparation of the Closing Balance Sheet and the Closing Working Capital Certificate and in the conduct of any the reviews referred to in this Section 2.033.6, including including, without limitation, making available available, to the extent necessary necessary, relevant books, records, work papers working papers, analyses and personnelschedules, and permitting representatives of the Parties to consult (in the presence of a representative of the Company Entities) with the respective employees, auditors, actuaries, attorneys and agents of the Company Entities. The Stockholder Representative and Parent further agree that they will take reasonable efforts to ensure that a representative of the Stockholder Representative and Parent are present and permitted to participate in any and all discussions involving the independent accountants relating to the Closing Balance Sheet and the Closing Working Capital Certificates and a copy of all information provided to the independent accountants by one Party is promptly delivered to the other Party.
(ef) Neither Subject to Section 2.03 nor 3.6(j), if the Closing Working Capital as determined in accordance with this Section 2.04 3.6 is intended greater than the Estimated Working Capital (as determined in accordance with Section 3.5 and as capped by Section 3.5(d), if applicable), then the Aggregate Cash Consideration payable by Parent shall be increased by the amount of the excess, and Parent shall pay to the Paying Agent such excess to be used to adjust for errors or omissions that may be found with respect promptly distributed to the Balance Sheet or any inconsistencies between Company Stockholders and option holders in the Balance Sheet same manner as the Cash Merger Consideration and other consideration was distributed pursuant to Sections 3.2, 3.4 and 4.1.
(g) Subject to Section 3.6(j), if the Closing Working Capital as determined in accordance with this Section 3.6 is less than the Estimated Working Capital (as determined in accordance with Section 3.5 and as capped by Section 3.5(d), if applicable), then the amount of such deficiency shall be deducted from either the InterCall Fund or the Accounting PoliciesITC Operations Fund, as Parent may determine in its sole discretion, in accordance with the terms of the Escrow Agreement.
(h) Subject to Section 3.6(j), if the Closing Net Cash on Hand as determined in accordance with this Section 3.6 is greater than the one handEstimated Net Cash on Hand (as determined in accordance with Section 3.5 and as capped by Section 3.5(f), if applicable), then the Aggregate Cash Consideration payable by Parent shall be increased by the amount of the excess, and GAAPParent shall pay to the Paying Agent such excess to be promptly distributed to the Company Stockholders and option holders in the same manner as the Cash Merger Consideration and other consideration was distributed pursuant to Sections 3.2, 3.4 and 4.1.
(i) Subject to Section 3.6(j), if the Closing Net Cash on Hand as determined in accordance with this Section 3.6 is less than the otherEstimated Net Cash on Hand (as determined in accordance with Section 3.5 and as capped by Section 3.5(f), if applicable), then the amount of such deficiency shall be deducted from either the InterCall Fund or the ITC Operations Fund, as Parent may determine in its sole discretion, in accordance with the terms of the Escrow Agreement.
(j) If pursuant to this Section 3.6 there is both an increase to the Aggregate Cash Consideration and an entitlement to a deduction from the InterCall Fund or the ITC Operations Fund, Parent shall be entitled to offset the amount of such deduction against the additional amount of Aggregate Cash Consideration prior to the payment of the remaining portion, if any, of the additional Aggregate Cash Consideration or making any deduction from the InterCall Fund or the ITC Operations Fund, as the case may be, for which the R&W Insurance Policy will be the sole and exclusive remedyremaining portion, subject to Section 8.03if any.
Appears in 1 contract
Sources: Merger Agreement (West Corp)
Closing Working Capital. (a) At least three Business Days prior to the Closing Date, the Company will deliver to Buyer a certificate setting forth the Company’s good faith estimate of Closing Working Capital calculated in accordance with this Agreement and the Accounting Policies (“Estimated Closing Working Capital”), together with reasonable documentation evidencing such calculation. If Buyer disagrees in good faith with the calculation of Estimated Closing Working Capital, Seller will in good faith negotiate a resolution of such disagreement, provided that if Buyer and Seller fail to reach a resolution prior to the Closing, Seller’s calculation of Estimated Closing Working Capital will be used for purposes of determining the Purchase Price to be paid by Buyer pursuant to Section 2.02(b); provided further that in no event will the consummation of the Closing be construed as a waiver by Buyer under this Section 2.03.
(b) As promptly as practicable, but no later than 90 days, Within 75 days after the Closing Date, Buyer will prepare, or cause to be prepared prepared, and delivered deliver to Seller Sellers’ Representative an audited Closing Working Capital Statement (the "Closing Working Capital Statement"), which shall set forth (i) a certificate setting forth Buyer’s calculations 's calculation of Closing Working Capital and as of September 30, 2008, (ii) a statement setting forth which calculation shall also include (xas an adjustment to the Purchase Price) an amount equivalent to all other debt of AMV and its Subsidiaries as at September 30, 2008 not included as part of the differences between Working Capital calculation, including debt that is payable longer than 12 months relating to the certificate delivered by Buyer pursuant to clause (i) acquisition of this sentence and the certificate delivered by the Company pursuant to Section 2.03(a) Connection Makers business and (yiii) which calculation shall also include (as an adjustment to the Purchase Price) an amount equivalent to a description, accompanied by supporting documentation, pro rata portion of the basis net profit after tax of AMV and its Subsidiaries for such differencesthe period October 1, 2008 through the Closing Date, based on the number of whole days elapsed from October 1, 2008 to the Closing Date as a proportion of the total net profit after tax of AMV and its Subsidiaries for the month of October 2008 (the “Stub Period Adjustment”) ("Closing Working Capital"). The Closing Working Capital will Statement and its components shall be prepared in accordance with UK GAAP applied on a basis substantially consistent with those used in the preparation of the Balance Sheet and the exchange rate used shall be the exchange rate as of the Closing Date as specified by the New York Federal Reserve Bank.
(b) Upon receipt from Buyer, Sellers’ Representative shall have 15 days to review the Closing Working Capital Statement (the "Review Period"). If Sellers’ Representative disagrees with Buyer's computation of Closing Working Capital, Sellers’ Representative may, on or prior to the last day of the Review Period, deliver a notice to Buyer (the "Notice of Objection"), which sets forth its objections to Buyer's calculation of Closing Working Capital; provided that the Notice of Objection shall include only objections based on (i) fairly present non-compliance with the standards set forth in Section 2.6(a) for the preparation of the Closing Working Capital of the Company as of 11:59 p.m. (Eastern time) on the date that is the last day prior to the Closing Date in accordance with the Accounting Policies, Statement and (ii) only include line mathematical errors in the computation of Closing Working Capital. Any Notice of Objection shall specify those items or amounts with which Sellers’ Representative disagrees, together with a detailed written explanation of the reasons for disagreement with each such item or amount, and shall set forth in Exhibit A. Buyer will, and will cause the Company to, (x) provide Seller and its representatives with reasonable access, upon reasonable prior written notice by Seller, during normal business hours to the books, records (including work papers, schedules, memoranda and other documents), supporting data and employees of the Company to the extent related to the certificate and statement delivered by Buyer pursuant to this Section 2.03(b) for purposes of Seller’s review of the certificate and statement delivered by Buyer pursuant to this Section 2.03(b) and (y) reasonably cooperate with Seller and its representatives in connection with such review.
(c) Seller and its accountants will have 60 days after delivery of the certificate and statement referred to in the first sentence of Section 2.03(b) to review such documents; provided that if, during such 60-day period, Buyer or the Company fails to furnish or provide access to any documents or information requested by Seller for purposes of Seller’s review (to the extent required to be provided or furnished pursuant to clause (x) of the last sentence of Section 2.03(b)) within five Business Days of Seller’s written request therefor, such 60-day period will be extended by the number of days between the date of Seller’s written request and the date on which Buyer or the Company furnishes or provides access to such documents or information to Seller or its representatives. If Seller disagrees with BuyerSellers’ Representative’s calculation of Closing Working Capital delivered pursuant to Section 2.03(b)based on such objections. To the extent not set forth in the Notice of Objection, Seller may, within 60 days after delivery of such calculation (as such period may be extended pursuant to the preceding sentence), deliver a notice to Buyer disagreeing with such calculation and specifying Seller’s calculation of such amounts and, in reasonable detail, Seller’s grounds for such disagreement. Any such notice of disagreement will specify those items or amounts as to which Seller disagrees, and Seller will Sellers’ Representative shall be deemed to have agreed with Buyer's calculation of all other items and amounts contained in the calculations Closing Working Capital Statement.
(c) Unless Sellers’ Representative delivers the Notice of Objection to Buyer within the Review Period, Sellers’ Representative shall be deemed to have accepted Buyer's calculation of Closing Working Capital delivered pursuant and the Closing Working Capital Statement shall be final, conclusive and binding. If Sellers’ Representative delivers the Notice of Objection to Section 2.03(b).
(d) If a notice of disagreement is duly delivered pursuant to Section 2.03(c)Buyer within the Review Period, Buyer and Seller willSellers’ Representative shall, during the 15 30 days following such delivery (as such period may be extended pursuant to a written agreement between Buyer and Seller)or any mutually agreed extension thereof, use their commercially reasonable efforts to reach agreement on the disputed items or and amounts in order to determinedetermine the amount of Closing Working Capital. If, at the end of such period or any mutually agreed extension thereof, Buyer and Sellers’ Representative are unable to resolve their disagreements, they shall jointly retain and refer their disagreements to an independent accounting firm mutually acceptable to Buyer and Sellers’ Representative (the "Independent Expert"), or in the absence of agreement, within seven days of the first disagreement being expressed, such firm as may be requiredthe President of the Institute of Chartered Accountants in England and Wales (or in his absence the next most senior officer) shall determine to act as the Independent Expert on the application of either Buyer or the Sellers’ Representative. The parties shall instruct the Independent Expert promptly to review this Section 2.6 and to determine solely with respect to the disputed items and amounts so submitted whether and to what extent, if any, the Closing Working Capital set forth in the Closing Working Capital Statement requires adjustment. The Independent Expert shall base its determination solely on written submissions by Buyer and Sellers’ Representative and not on an independent review. Buyer and Sellers’ Representative shall make available to the Independent Expert all relevant books and records and other items reasonably requested by the Independent Expert. As promptly as practicable but in no event later than 45 days after its retention, the Independent Expert shall deliver to Buyer and Sellers’ Representative a report which sets forth its resolution of the disputed items and amounts and its calculation of Closing Working Capital; provided that such amount in no event shall Closing Working Capital as determined by the Independent Expert be less than Buyer's calculation of Closing Working Capital will not be less than set forth in the amount thereof shown in Buyer’s calculations delivered pursuant to Section 2.03(b) or Closing Working Capital Statement nor more than the amount thereof shown in SellerSellers’ Representative’s calculations delivered pursuant to Section 2.03(c). If Buyer and Seller are unable to reach such agreement during such period, they will promptly cause a mutually agreed independent accounting firm of nationally recognized standing (the “Accounting Firm”) to review this Agreement and the disputed items or amounts for the purpose of calculating Closing Working Capital. In making such calculations, the Accounting Firm will (i) act as an arbitrator, not as an expert, (ii) consider only those items or amounts in Buyer’s calculations calculation of Closing Working Capital as to which Seller has disagreed set forth in the Notice of Objection. The decision of the Independent Expert shall be final, conclusive and (iii) not consider or review any settlement (or similar) offers made binding on the parties. The costs and expenses of the Independent Expert shall be borne one-half by Buyer or Seller in connection herewith. The Accounting Firm will deliver to Buyer and Seller, as promptly as practicable, a report setting forth such calculations, including an explanation for its determination of the amount of each disputed item or amount determined therein. Such report will be final and binding upon Buyer and Seller. The cost of such review and report will be borne equally one-half by Buyer, on the one hand, and Seller, on the other hand. Neither Buyer nor Seller will have, directly or indirectly, any ex parte communications or meetings with the Accounting Firm concerning matters within the scope of its engagement. Buyer and Seller agree that they will, and agree to cause their respective independent accountants and the Company to, cooperate and assist in the calculations of Closing Working Capital and in the conduct of any reviews referred to in this Section 2.03, including making available to the extent necessary books, records, work papers and personnelSellers.
(e) Neither Section 2.03 nor Section 2.04 is intended to be used to adjust for errors or omissions that may be found with respect to the Balance Sheet or any inconsistencies between the Balance Sheet or the Accounting Policies, on the one hand, and GAAP, on the other, for which the R&W Insurance Policy will be the sole and exclusive remedy, subject to Section 8.03.
Appears in 1 contract