Common use of Accounting Referee Clause in Contracts

Accounting Referee. If Disputed Items are referred to the Accounting Referee for resolution pursuant to Section 3.5(c), the Accounting Referee shall determine only with respect to the Disputed Items submitted whether and to what extent, if any, the Aggregate Merger Consideration and the components thereof set forth in the Closing Statement require adjustment. With respect to each Disputed Item, the Accounting Referee’s determination shall be within the range of values assigned to such Disputed Item by Parent and the Securityholders’ Representative. Any finding by the Accounting Referee shall be (i) a reasoned award stating in reasonable detail the findings of fact on which it is based, (ii) final, non-appealable and binding upon the parties hereto and (iii) the sole and exclusive remedy between the parties hereto regarding the Disputed Items so presented. The fees and expenses of the Accounting Referee shall be borne by Parent and the Securityholders’ Representative (on behalf of the Securityholders in accordance with their respective Pro Rata Shares) in the same proportion that the dollar amount of Disputed Items which are not resolved in favor of Parent or the Securityholders’ Representative, as applicable, bears to the total dollar amount of Disputed Items resolved by the Accounting Referee. Each of Parent and the Securityholders’ Representative (on behalf of the Securityholders in accordance with their respective Pro Rata Shares) shall bear the fees, costs and expenses of its own accountants and all of its other expenses incurred in connection with matters contemplated by this Section 3.5.

Accounting Referee. If Disputed Items are referred to the Accounting Referee for resolution pursuant to Section 3.5(c), the Accounting Referee shall determine only with respect to the Disputed Items submitted whether and to what extent, if any, the Aggregate Merger Consideration and the components thereof set forth in the Closing Statement require adjustment. With respect to each Disputed Item, the Accounting Referee’s determination shall be within the range of values assigned to such Disputed Item by Parent Buyer and the Securityholders’ Representative. Any finding by the Accounting Referee shall be (i) a reasoned award stating state in reasonable detail the findings of fact on which it is based, (ii) be final, non-appealable and binding upon the parties hereto (except in the case of fraud or manifest error) and (iii) be the sole and exclusive remedy between the parties hereto regarding the Disputed Items so presented. The fees and expenses of the Accounting Referee shall be borne by Parent B▇▇▇▇ and the Securityholders’ Representative (on behalf of the Securityholders in accordance with their respective Pro Rata Sharesand from the Securityholders’ Representative Expense Fund, to the extent available) in the same proportion that the dollar amount of Disputed Items which are not resolved in favor of Parent Buyer or the Securityholders’ Representative, as applicable, bears to the total dollar amount of Disputed Items resolved by the Accounting Referee. Each of Parent Buyer and the Securityholders’ Representative (on behalf of the Securityholders in accordance with their respective Pro Rata Sharesand from the Securityholders’ Representative Expense Fund, to the extent available) shall bear the fees, costs and expenses of its own accountants and all of its other expenses incurred in connection with matters contemplated by this Section 3.5.