Draft Closing Statement. (i) Within thirty (30) days after the Closing Date, Buyer will prepare and deliver to Seller a statement evidencing its final determination of the Net Working Capital (the “Draft Closing Statement”) for Seller as of the close of business on the Closing Date (determined on a pro forma basis as though the parties had not consummated the transactions contemplated by this Agreement). The Draft Closing Statement will be prepared in accordance with the accrual accounting practices and procedures as consistently applied by Seller in the preparation of the Financial Statements provided by Seller pursuant to this Agreement. (ii) If Seller has any objections to the Draft Closing Statement, they shall deliver a detailed statement describing such objections to Buyer within fifteen (15) days after receiving the Draft Closing Statement. Buyer and Seller shall use commercially reasonable efforts to resolve any such objections themselves. If the parties do not reach a final resolution within thirty (30) days after Buyer has received the statement of objections, however, Buyer and Seller shall submit the matter to C▇▇▇▇ & Company (the “Accounting Referee”) to resolve any remaining objections. Only the amounts in dispute (the aggregate of all such amounts, the “Disputed Amounts”) will be referred to the Accounting Referee for final determination. The determination of the Accounting Referee shall be issued in writing within forty-five (45) days of such referral. The final determination of the Disputed Amounts shall be based solely on presentations by Buyer and Seller and shall not involve the Accounting Referee’s independent review, and the Accounting Referee shall not be authorized to assign a value outside of the range established by Buyer’s position as set forth in the Draft Closing Statement and by Seller’s position as set forth in their written objection(s). The determination by the Accounting Referee pursuant to the foregoing shall be final, binding upon and non-appealable by the parties. The Buyer, on the one hand, and Seller, on the other hand, shall bear the fees and expenses of the Accounting Referee in the proportion that the aggregate amount of such Disputed Amounts so submitted to the Accounting Referee that are unsuccessfully disputed by each such party, as finally determined by the Accounting Referee, bears to the total amount of such remaining Disputed Amounts. (iii) Buyer shall revise the Draft Closing Statement as appropriate to reflect the resolution of all objections thereto pursuant to Section 3.2(b)(ii), if any. The Net Working Capital calculation as set forth in the Final Closing Statement shall be the “Final Net Working Capital.” (iv) Buyer will make the work papers and back-up materials used in preparing the Draft Closing Statement, including, without limitation, all books and records of Seller, available to Seller at reasonable times and upon reasonable notice at any time during the review by Seller of the Draft Closing Statement, and the resolution by the parties of any objections thereto.
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Draft Closing Statement. (i) Within thirty (30) days after the Closing Date, Buyer will prepare and deliver to Seller Sellers a statement evidencing its final determination of the Indebtedness, Transaction Expenses, Estimated Work in Process Amount and Net Working Capital (the “Draft Closing Statement”) for Seller the Company as of the close of business on the Closing Date (determined on a pro forma basis as though the parties had not consummated the transactions contemplated by this Agreement). The Draft Closing Statement will be prepared in accordance with GAAP applied on a consistent basis with the accrual accounting practices and procedures Financial Statements and, as consistently applied by Seller to Net Working Capital, in a manner consistent with the preparation of the Financial Statements provided by Seller pursuant to this Agreement.attached Exhibit B.
(ii) If Seller has Sellers have any objections to the Draft Closing Statement, they shall deliver a detailed statement describing such objections to Buyer within fifteen (15) days after receiving the Draft Closing Statement. Buyer and Seller Sellers shall use commercially reasonable efforts to resolve any such objections themselves. If the parties do not reach a final resolution within thirty (30) days after Buyer has received the statement of objections, however, either Buyer and Seller shall or Sellers may submit the matter to C▇▇▇▇ & Company BDO USA, LLC (the “Accounting Referee”) to resolve any remaining objections. Only the amounts in dispute (the aggregate of all such amounts, the “Disputed Amounts”) will be referred to the Accounting Referee for final determination. The determination of the Accounting Referee shall be issued in writing within forty-five (45) days of such referral. The final determination of the Disputed Amounts shall be based solely on presentations by Buyer and Seller Sellers and shall not involve the Accounting Referee’s independent review, and the Accounting Referee shall not be authorized to assign a value outside of the range established by Buyer’s position as set forth in the Draft Closing Statement and by Seller’s Sellers’ collective position as set forth in their written objection(s). The determination by the Accounting Referee pursuant to the foregoing shall be final, binding upon and non-appealable by the parties. The Buyer, on the one hand, and Sellerthe Sellers, on the other hand, shall bear the fees and expenses of the Accounting Referee in the proportion that the aggregate amount of such Disputed Amounts so submitted to the Accounting Referee that are unsuccessfully disputed by each such party, as finally determined by the Accounting Referee, bears to the total amount of such remaining Disputed Amounts.
(iii) Buyer shall revise the Draft Closing Statement as appropriate to reflect the resolution of all objections thereto pursuant to Section 3.2(b)(ii2.05(b)(ii), if any. The “Final Closing Statement” shall mean the Draft Closing Statement together with all revisions thereto pursuant to Section 2.05(b)(ii), if any. The Indebtedness calculation as set forth in the Final Closing Statement shall be the “Final Indebtedness Amount.” The Transaction Expenses calculation as set forth in the Final Closing Statement shall be the “Final Transaction Expenses.” The Work in Process calculation as set forth in the Final Closing Statement shall be the “Final Work in Process Amount.” The Net Working Capital calculation as set forth in the Final Closing Statement shall be the “Final Net Working Capital.”
(iv) Buyer will make the work papers and back-up materials used in preparing the Draft Closing Statement, including, without limitation, all books and records of Seller, available to Seller at reasonable times and upon reasonable notice at any time during the review by Seller of the Draft Closing Statement, and the resolution by the parties of any objections thereto.
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