DRAFT ADJUSTMENT STATEMENT AS AMENDED ACCORDING TO THE SELLERS'
DISAGREEMENT NOTICE, WILL BE FINAL AND BINDING ON THE PARTIES AND THE PAYMENT OF
THE CLOSING PURCHASE PRICE ADJUSTMENT SHALL BE MADE IN ACCORDANCE WITH ARTICLE
3.3.
(IV)
IF THE SELLERS AND THE PURCHASER ARE UNABLE IN GOOD FAITH TO
REACH AGREEMENT IN RESPECT THEREOF, WITHIN THE TEN (10) BUSINESS DAY PERIOD
REFERRED TO IN ARTICLE 3.2.2 (III), THEY SHALL REFER THE FINAL DETERMINATION OF
THE DRAFT ADJUSTMENT STATEMENT TO ERNST & YOUNG ACTING AS A "TIERS ARBITRE" IN
ACCORDANCE WITH ARTICLE 1592 OF THE FRENCH CODE CIVIL (THE "EXPERT").
(V)
EXCEPT TO THE EXTENT THAT THE PURCHASER AND THE SELLERS
AGREE OTHERWISE, THE EXPERT SHALL DETERMINE ITS OWN PROCEDURE BUT:
-
apart from procedural matters,
shall determine only items in dispute in the Sellers' Disagreement Notice and in
the Purchaser Notice;
-
shall apply the principles set out
in Articles 3.2.1 (i) and 3.2.1 (ii);
-
the procedure of the Expert shall
(i) give the Parties a reasonable opportunity to make written and oral
representations to them, (ii) require that the Parties supply each other with a
copy of any written representations at the same time as they are made to the
Expert, (iii) permit each Party to be present while oral submissions are being
made by any other Party.
IN VIEW OF THE DETERMINATION OF THE CLOSING PURCHASE PRICE ADJUSTMENT, THE
EXPERT SHALL PREPARE AND DELIVER TO EACH PARTY A REPORT NO LATER THAN THIRTY
(30) DAYS FROM ITS APPOINTMENT (THE "EXPERT REPORT"). THE DETERMINATION OF THE
CLOSING PURCHASE PRICE ADJUSTMENT AS SET FORTH IN THE EXPERT'S REPORT SHALL BE
FINAL AND BINDING ON THE PARTIES SAVE IN THE EVENT OF MANIFEST ERROR (ERREUR
GROSSIÈRE).
THE FEES OF THE EXPERT SHALL BE PAID AS TO HALF BY THE SELLERS AND ALSO HALF BY
THE PURCHASER. THE PORTION OF THE EXPERT'S FEES TO BE PAID BY THE SELLERS SHALL
BE ALLOCATED AMONG THEM IN PROPORTION TO THEIR RESPECTIVE SHARE IN THE CLOSING
PURCHASE PRICE.
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(VI)
THE DRAFT ADJUSTMENT STATEMENT, EITHER AS ORIGINALLY SUBMITTED
BY THE PURCHASER OR AS AGREED BETWEEN THE PURCHASER AND THE SELLERS PURSUANT TO
ARTICLE 3.2.2(III) OR AS SET FORTH IN THE EXPERT REPORT, SHALL CONSTITUTE THE
ADJUSTMENT STATEMENT UNDER THIS AGREEMENT WHICH SHALL BE FINAL AND BINDING ON
THE PARTIES (THE "ADJUSTMENT STATEMENT"). FOR THE AVOIDANCE OF DOUBT, IT IS
EXPRESSLY AGREED BETWEEN THE PARTIES THAT THE PROCEDURE SET OUT ABOVE TO
DETERMINE THE ADJUSTMENT STATEMENT SHALL BE REITERATED UPON THE OCCURRENCE OF
ANY OF THE EVENTS OR DATES SET OUT IN ARTICLE 3.2.2(I).
(VII)
DURING THE WHOLE REVIEW PERIODS OF THE ADJUSTMENT STATEMENT, THE
PURCHASER AND THE SELLERS, AS THE CASE MAY BE, SHALL (A) COOPERATE FULLY AND
COMPLETELY SO FAR AS THEY ARE ABLE AND SHALL CAUSE THE NOVASEP GROUP COMPANIES
TO COOPERATE FULLY AND COMPLETELY, DURING NORMAL WORKING HOURS, IN RESPONDING TO
REASONABLE QUESTIONS AND REQUESTS FOR INFORMATION SUBMITTED BY THE SELLERS, THE
SELLERS' ADVISERS AND THE EXPERT, (B) HAVE REASONABLE