WITHIN FORTY-FIVE (45) CALENDAR DAYS AFTER THE CLOSING DATE,
SELLERS SHALL PREPARE AND DELIVER TO BUYERS AN UNAUDITED STATEMENT OF THE
INVENTORY OF THE BUSINESS AS OF THE CLOSING TIME (THE "CLOSING INVENTORY
STATEMENT").
THE CLOSING INVENTORY STATEMENT SHALL BE PREPARED IN THE SAME
MANNER AS THE STATEMENT OF TARGET INVENTORY, BASED ON THE ACCOUNTING
METHODOLOGIES, AND SHALL PRESENT FAIRLY THE INVENTORY OF THE BUSINESS AS OF THE
CLOSING.
BUYERS SHALL PROVIDE TO SELLERS, AND ANY PERSON DESIGNATED BY SELLERS,
WITH ACCESS TO THE BOOKS AND RECORDS OF THE BUSINESS CONSTITUTING TRANSFERRED
ASSETS AS MAY REASONABLY BE REQUESTED BY SELLERS TO PREPARE THE CLOSING
INVENTORY STATEMENT.
(V)
FOR FORTY-FIVE (45) CALENDAR DAYS AFTER BUYERS' RECEIPT OF THE
CLOSING INVENTORY STATEMENT, BUYERS AND THEIR REPRESENTATIVES (INCLUDING OUTSIDE
ACCOUNTANTS) SHALL HAVE THE RIGHT TO, AT THEIR SOLE EXPENSE:
(A) REVIEW THE
WORK PAPERS, SCHEDULES, MEMORANDA AND OTHER DOCUMENTS AND INFORMATION PREPARED
OR REVIEWED BY SELLERS OR THEIR ACCOUNTANTS OR REPRESENTATIVES IN PREPARING THE
CLOSING INVENTORY STATEMENT, AND COMMUNICATE AT MUTUALLY ACCEPTABLE TIMES WITH
THE PERSONS INVOLVED IN THE PREPARATION OF THE CLOSING INVENTORY STATEMENT;
(B) CONDUCT PHYSICAL INSPECTIONS AND SAMPLINGS OF ANY INVENTORY (INCLUDING RAW
MATERIALS AND WORK-IN-PROCESS HELD BY SELLERS IN ACCORDANCE WITH THE TRANSITION
SUPPLY AGREEMENT), WHEREVER LOCATED, INCLUDING SAMPLINGS OF FINISHED GOODS WHICH
ARE ON CONSIGNMENT WITH THIRD PARTIES; AND (C) ADVISE SELLERS IN WRITING (A
"DISPUTE NOTICE") OF ANY DISAGREEMENT WITH THE CLOSING INVENTORY STATEMENT,
TOGETHER WITH A WRITTEN INDICATION OF ANY ADJUSTMENTS ("PROPOSED ADJUSTMENTS")
WHICH BUYERS IN GOOD FAITH BELIEVE ARE NECESSARY TO BE MADE TO THE INVENTORY
AMOUNT OR THE CONSIGNMENT INVENTORY AMOUNT SET FORTH THEREIN, SPECIFYING IN EACH
CASE THE EXACT DOLLAR AMOUNT OF EACH ADJUSTMENT AND THE BASIS FOR REQUESTING THE
PROPOSED ADJUSTMENTS.
AT
9
THE END OF SUCH PERIOD FOR DELIVERY OF A DISPUTE NOTICE, BUYERS MAY NOT
INTRODUCE ANY ADDITIONAL DISAGREEMENTS WITH ANY ITEM ON THE CLOSING INVENTORY
STATEMENT, AND ANY ITEMS IN THE CLOSING INVENTORY STATEMENT THAT ARE NOT THEN
DISPUTED IN ANY DISPUTE NOTICE SHALL BE DEEMED AGREED BY SELLERS AND BUYERS AND
SHALL BE FINAL AND BINDING.
IF BUYERS SUBMIT A DISPUTE NOTICE, BUYERS AND
SELLERS SHALL PROMPTLY MEET AND MAKE A GOOD FAITH EFFORT TO RESOLVE ANY
DISAGREEMENTS BETWEEN THEM CONCERNING THE PROPOSED ADJUSTMENTS, AND IF SELLERS
AND BUYERS REACH AGREEMENT ON THE RESOLUTION OF SUCH DISPUTE, THE PROPOSED
ADJUSTMENTS (WITH ANY CHANGES AGREED BY THE PARTIES) SHALL BE FINAL AND
BINDING.
IF BUYERS DO NOT SUBMIT ANY DISPUTE NOTICE WITHIN THE FORTY-FIVE (45)
CALENDAR DAY PERIOD PURSUANT TO THIS SECTION 1.2(B)(V), THEN THE CLOSING
INVENTORY STATEMENT SHALL BE DEEMED THE FINAL INVENTORY (AS DEFINED BELOW).
(VI)
IF ANY OF THE PROPOSED ADJUSTMENTS IN DISPUTE CANNOT BE SO
RESOLVED WITHIN TWENTY (20) CALENDAR DAYS AFTER THE DATE OF THE DISPUTE NOTICE,
THE PARTIES AGREE TO PROMPTLY ENGAGE THE SERVICES OF A MUTUALLY ACCEPTABLE
INDEPENDENT ACCOUNTING FIRM THAT HAS NOT PERFORMED SERVICES FOR EITHER PARTY OR
THEIR AFFILIATES WITHIN THE THREE (3) CALENDAR YEARS PRIOR TO SUCH ENGAGEMENT