OF A NOTICE OF DISAGREEMENT, BUYERS AND SELLER SHALL SEEK IN GOOD FAITH TO
RESOLVE IN WRITING ANY DIFFERENCES THAT THEY MAY HAVE WITH RESPECT TO THE
MATTERS SPECIFIED IN THE NOTICE OF DISAGREEMENT.
AT THE END OF SUCH 30-DAY
PERIOD, BUYERS AND SELLER SHALL SUBMIT TO THE ACCOUNTING FIRM FOR ARBITRATION,
IN ACCORDANCE WITH THE STANDARDS SET FORTH IN THIS SECTION 2.10, ONLY MATTERS
THAT REMAIN IN DISPUTE AND WERE PROPERLY INCLUDED IN THE DISPUTE NOTICE IN
ACCORDANCE WITH THIS SECTION 2.10.
BUYERS AND SELLER SHALL USE THEIR
COMMERCIALLY REASONABLE EFFORTS TO CAUSE THE ACCOUNTING FIRM TO RENDER A WRITTEN
24
DECISION RESOLVING THE MATTERS SUBMITTED TO THE ACCOUNTING FIRM WITHIN THIRTY
(30) DAYS OF THE RECEIPT OF SUCH SUBMISSION. THE ACCOUNTING FIRM SHALL DETERMINE
THE CLOSING NET ASSET VALUE AND THE CLOSING NET BOOK VALUE PURSUANT TO THIS
SECTION 2.10; PROVIDED, HOWEVER, THAT NO ADJUSTMENT SHALL BE MADE BY THE
ACCOUNTING FIRM IN FAVOR OF BUYERS WITH RESPECT TO ANY ITEM THAT WAS NOT
INCLUDED IN BUYER'S NOTICE OF DISAGREEMENT.
THE ACCOUNTING FIRM'S DECISION
SHALL BE BASED SOLELY ON WRITTEN SUBMISSIONS BY BUYERS AND SELLER AND THEIR
RESPECTIVE REPRESENTATIVES AND BY REFERENCE TO THE TERMS OF THIS AGREEMENT.
SELLER AND BUYERS SHALL FURNISH OR CAUSE TO BE FURNISHED TO THE ACCOUNTING FIRM
SUCH WORK PAPERS AND OTHER DOCUMENTS AND INFORMATION RELATED TO THE DISPUTED
MATTERS AS THE ACCOUNTING FIRM MAY REQUEST AND ARE REASONABLY AVAILABLE TO
SELLER, BUYERS OR THEIR RESPECTIVE AGENTS.
THE ACCOUNTING FIRM SHALL ADDRESS
ONLY THOSE ITEMS IN DISPUTE AND CALCULATION-RELATED ERRORS.
JUDGMENT MAY BE
ENTERED UPON THE DETERMINATION OF THE ACCOUNTING FIRM IN ANY COURT HAVING
JURISDICTION OVER THE PARTY AGAINST WHICH SUCH DETERMINATION IS TO BE ENFORCED.
THE FEES AND EXPENSES OF THE ACCOUNTING FIRM INCURRED PURSUANT TO THIS
SECTION 2.10 SHALL BE BORNE BY BUYERS AND SELLER EQUALLY.
(B)
INVENTORY RESERVE; PENSION OBLIGATION.
PRIOR TO DELIVERY OF THE CLOSING STATEMENT, BUYER AND SELLER SHALL DETERMINE IF
THE INVENTORY RESERVE OF XCEL JAPAN IS ADEQUATE ASSUMING A MAXIMUM OF 18 MONTHS
ON HAND AT AN INDIVIDUAL UNIT LEVEL (BASED ON THE ORDER ACTIVITY DURING THE PAST
18 MONTHS IMMEDIATELY PRIOR TO THE CLOSING) ASSUMING ALL CURRENT OPEN ORDERS ARE
FILLED.
IF SUCH INVENTORY RESERVE IS NOT SUFFICIENT, BUYER AND SELLER SHALL
MUTUALLY AGREE UPON THE AMOUNT BY WHICH THE INVENTORY RESERVE SHALL BE INCREASED
AND INCREASE THE TARGET NET VALUE ACCORDINGLY.
PRIOR TO DELIVERY OF THE CLOSING
STATEMENT, THE TARGET NET VALUE SHALL BE INCREASED TO REFLECT AN ADJUSTMENT TO
THE PENSION OBLIGATION OF XCEL JAPAN TO ¥43,015,811, WHICH REFLECTS THE AGREED
UPON LIABILITY AS OF THE CLOSING.
(C)
PAYMENT OF ADJUSTMENT.
WITHIN THREE
(3) DAYS FOLLOWING THE DATE THAT THE CLOSING STATEMENT BECOMES FINAL AND BINDING
UPON BUYERS AND SELLER, IF THE CLOSING NET VALUE AS SET FORTH IN THE CLOSING
STATEMENT IS LESS THAN AN AMOUNT EQUAL TO THE TARGET NET VALUE, THEN SELLER
SHALL PAY TO BUYERS (IN SUCH PROPORTION AS DIRECTED BY THE BUYERS) AN AMOUNT
EQUAL TO