Resolution of Protest. If the Buyer and the Sellers are unable to resolve any disagreement with respect to any Sellers’ Return or Straddle Period Return within fifteen (15) days following the delivery of a Protest Notice, then either the Buyer or the Sellers may refer the items in dispute to the Independent Accountant. In such case, the Buyer and the Sellers will jointly retain the Independent Accountant and direct it to render a written report resolving any and all items in dispute as set forth in the Protest Notice, not later than thirty (30) days after acceptance of its retention. The Sellers and the Buyer shall each submit to the Independent Accountant a binder setting forth their specific information, evidence and support for their respective positions as to all items in dispute. Neither the Sellers nor the Buyer shall have or conduct any communication, either written or oral, with the Independent Accountant without the other Party either being present or receiving a concurrent copy of any written communication. The Sellers and the Buyer, and their respective Representatives, shall cooperate fully with the Independent Accountant during its engagement and respond on a timely basis to all requests for information or access to documents or personnel made by the Independent Accountant, all with the intent to fairly and in good faith resolve all disputes relating to the Sellers’ Return or the Straddle Period Return, as applicable, as promptly as reasonably practicable. The findings and determinations of the Independent Accountant as set forth in its written report shall be deemed final, conclusive and binding upon the Parties. In resolving any disputed item, the Independent Accountant (A) may not assign a value to any particular item greater than the greatest value for such item claimed by either the Sellers or the Buyer, or less than the lowest value for such item claimed by either the Sellers or the Buyer, in each case as presented to the Independent Accountant, (B) shall be bound by the principles set forth in this Section 7.1, and (C) shall limit its review to matters specifically set forth in the Protest Notice. The fees and expenses of the Independent Accountant shall be borne by the Sellers, on the one hand, and the Buyer, on the other hand, based upon the percentage that the amount not awarded to the Sellers bears to the amount actually contested by the Sellers.
Resolution of Protest. Within thirty (30) days after the Delivery Date (the “Objection Deadline”), Seller may deliver to Buyer a notice of objection (an “Objection Notice”) with respect to the Adjustment Amount Calculation. If no Objection Notice regarding the Adjustment Amount Calculation is delivered by Seller to Buyer by the Objection Deadline, the Adjustment Amount Calculation shall be final and binding on the parties hereto as the Adjustment Amount. Any Objection Notice regarding the Adjustment Amount Calculation shall specify the items in the Adjustment Amount Calculation disputed by Seller and shall describe the basis for the objection, as well as the amount in dispute. Any other items not so disputed by Seller shall be deemed “agreed upon”. If an Objection Notice is delivered in accordance with this Section 2.3(b), Buyer and Seller shall consult with each other with respect to the objection set forth therein. If Buyer and Seller are unable to reach agreement within fifteen (15) days after an Objection Notice has been given, all unresolved disputed items shall be promptly referred to an independent auditor which (i) has never provided services to either Buyer or Seller and (ii) is mutually acceptable to Buyer and Seller (the “Independent Accounting Firm”). The Independent Accounting Firm shall be directed to render a written report on the unresolved disputed issues with respect to the Adjustment Amount Calculation as promptly as practicable, but in no event more than thirty (30) days after such submission to the Independent Accounting Firm, and to resolve only those issues of dispute set forth in the Objection Notice. If unresolved disputed issues are submitted to the Independent Accounting Firm, Buyer and Seller will each furnish to the Independent Accounting Firm such bank statements and other documents and information relating to the unresolved disputed issues as the Independent Accounting Firm may reasonably request. The Independent Accounting Firm shall establish the procedures it shall follow (including procedures with regard to the presentation of evidence) giving due regard to the mutual intention of Seller and Buyer to resolve the disputed items and amounts as quickly, efficiently and inexpensively as possible. The resolution of the dispute and the calculation of the Adjustment Amount by the Independent Accounting Firm shall be final and binding on the parties hereto. The fees and expenses of the Independent Accounting Firm shall be allocated between Buyer and Se...
Resolution of Protest. If the Buyer and the Sellers are unable to resolve any disagreement as to the Net Working Capital Statement within thirty (30) days following the Buyer’s receipt of the Protest Notice, then within forty-five (45) days following the Buyer’s receipt of the Protest Notice, the amounts in dispute will be referred to the Los Angeles, California office of Pricewaterhouse Coopers LLP (the “Accountants”) for final arbitration within forty-five (45) days after the matter is submitted to the Accountants, which arbitration shall be final and binding on both the Buyer and the Sellers. The Accountants shall act as an arbitrator to determine, based solely on presentations by the Buyer and the Sellers, and not by independent review, only those amounts still in dispute. The Buyer and the Sellers agree to execute, if requested by the Accountants, a reasonable engagement letter. The fees and expenses of the Accountants shall be allocated between the Buyer and the Sellers so that the Sellers’ share of such fees and expenses shall be equal to the product of (x) the aggregate amount of such fees and expenses, and (y) a fraction, the numerator of which is the amount in dispute that is ultimately unsuccessfully disputed by the Sellers (as determined by the Accountant) and the denominator of which is the total amount in dispute submitted to arbitration. The balance of such fees and expenses shall be paid by the Buyer. The term “Final Net Working Capital Statement,” as used in this Agreement, shall mean the definitive Net Working Capital Statement accepted by the Sellers, agreed to by the Sellers and the Buyer in accordance with Section 2.5(c) or resulting from the determinations made by the Accountants in accordance with this Section 2.5(d).
Resolution of Protest. If, at the end of the thirty-day resolution period, the Buyer and the Sellers’ Representatives are unable to resolve any disagreements as to the Buyer’s calculation of the Final Closing Date Balance Sheet, then the Independent Accounting Firm shall resolve any remaining disagreements. The Independent Accounting Firm shall be charged with determining as promptly as practicable, but in any event within thirty (30) days after the date on which such dispute is referred to the Independent Accounting Firm, any disputed items required to determine the Final Closing Date Balance Sheet.
Resolution of Protest. If a Protest Notice is timely delivered in accordance with Section 2.5(e), Seller and Buyer shall promptly endeavor in good faith to resolve any disagreement as to the Closing Statement. If Buyer and Seller are unable to resolve in writing any disagreement as to the Closing Statement within thirty (30) days following Buyer’s receipt of the Protest Notice, then the amounts set forth in the Protest Notice remaining in dispute will be promptly referred to Ernst & Young
Resolution of Protest. Nord and the Board shall use commercially reasonable efforts to resolve, as soon as practicable, any Disputed EBITDA Items. If the Board and Nord are unable to resolve any such objection with respect to the Disputed EBITDA Items within twenty (20) days following Nord’s delivery of a Protest Notice, then either the Board or Nord may refer the unresolved items in dispute (the “Unresolved EBITDA Items”) to the Accountants. Promptly, but not later than thirty (30) days after acceptance of their appointment, or such longer period as Board and Nord may agree in writing, the Accountants will determine (based solely on written presentations to the Accountants by the Board and Nord and not by independent review) and will render a report as to the Unresolved EBITDA Items in dispute and the resulting calculation of EBITDA, which report will be conclusive and binding upon the parties for all purposes hereunder. In resolving any disputed Unresolved EBITDA Item, the Accountants (A) may not assign a value to any particular item greater than the greatest value for such item claimed by either party or less than the lowest value for such item claimed by either party, in each case as presented to the Accountants, (B) shall act as an expert and not as an arbitrator, (C) may not propose for resolution any matters that are not Unresolved Closing Items and (D) may not take ex parte oral testimony from the parties or any other Person. The fees and expenses of the Accountants shall be shared equally by the Company, on the one hand, and by Nord, on the other hand.
Resolution of Protest. If the Buyer and the Holders Representative are unable to resolve any disagreement with respect to the preparation of the Closing Schedule within twenty (20) days following the delivery of any Protest Notice, then either the Buyer or the Holders Representative may refer the items in dispute to an independent accountant mutually agreeable to the Buyer and the Holders Representative and to the extent the identity of such independent accountant is not agreed following the lapse of additional fifteen (15) days, as of the lapse of the twenty (20) days period following the delivery of any Protest Notice, such independent accountant shall be elected by the Chief Executive of ICAS (the “Independent Accountant”). In such case, the Buyer and the Holders Representative will jointly retain the Independent Accountant and direct it to render a written report setting forth its determination of the Actual Aggregate Cash Closing Consideration, resolving any and all items in dispute (as set forth in the Protest Notice), not later than thirty (30) days after acceptance of its retention. The Holders Representative and the Buyer shall each submit to the Independent Accountant a binder setting forth their respective computations of the Actual Aggregate Cash Closing Consideration, and specific information, evidence and support for their respective positions as to all items in dispute. Neither the Holders Representative nor the Buyer shall have or conduct any communication in connection herewith, either written or oral, with the Independent Accountant without the other Party either being present or receiving a concurrent copy of any written communication. The Holders Representative and the Buyer, and their respective Representatives, shall cooperate fully with the Independent Accountant during its engagement and respond on a timely basis to all requests for information or access to documents or personnel made by the Independent Accountant, all in furtherance of enabling the Independent Accountant to fairly and in good faith resolve all disputes relating to the Closing 9
Resolution of Protest. If the Buyer and the Sellers are unable to resolve any disagreement with respect to the Closing Schedule within twenty (20) days following the Seller Representative’s delivery of any Protest Notice, then either the Seller Representative or the Buyer may refer the items in dispute to Gxxxx Xxxxxxxx LLP (the “Accountants”). Any undisputed amount due from the Sellers to the Buyer or the Buyer to the Sellers, as the case may be, shall be paid within five (5) business days after delivery of the Protest Notice as set forth in Section 1.4(c). Promptly, but not later than thirty (30) days after acceptance of its appointment, the Accountants will determine (based solely on presentations to the Accountants by the Seller Representative and the Buyer and not by independent review) and will render a report as to the disputes and the resulting Closing Schedule, which report will be conclusive and binding upon the Parties. In resolving any disputed item, the Accountants may not assign a value to any particular item greater than the greatest value for such item claimed by either Party or less than the lowest value for such item claimed by either Party, in each case as presented to the Accountants. The fees and expenses of the Accountants shall be borne by the Sellers, on the one hand, and the Buyer, on the other hand, based upon the percentage that the amount not awarded to the Buyer or the Sellers bears to the amount actually contested by such Party.
Resolution of Protest. If a Protest Notice is timely delivered in accordance with Section 3(c), the Stockholder Representative and Company shall promptly endeavor in good faith to resolve any disagreement as to the Closing Schedule. If the Company and the Stockholder Representative are unable to resolve in writing any disagreement as to the Closing Schedule within thirty (30) days following Company’s receipt of the Protest Notice, then the dispute will be promptly referred to Gxxxx Xxxxxxxx, LLP (the “Accountants”) for final determination, which the Accountants shall be instructed to make within thirty (30) days after the matter is submitted to them, and which determination shall be final, binding and non-appealable. The Accountants shall act as an expert (and not an arbitrator) to determine, based solely on written presentations and submissions by the Company and the Stockholder Representative (which presentations and submissions shall be made to the Accountants no later than fifteen (15) days after the engagement of the Accountants), and not by independent review, only those amounts still in dispute, in each case, in accordance with the applicable definitions set forth herein. The Accountants shall pick the position of either the Company or the Stockholder Representative for each item in dispute. The Company and the Stockholder Representative agree to execute, if requested by the Accountants, a reasonable engagement letter. The fees and expenses of the Accountants shall be allocated between Company, on the one hand, and the Stockholders, on the other hand (pro rata in accordance with their Holder Percentages), so that the Stockholders’ aggregate share of such fees and expenses shall be equal to the product of (i) the aggregate amount of such fees and expenses, and (ii) a fraction, the numerator of which is the amount in dispute that is ultimately unsuccessfully disputed by the Stockholder Representative (as determined by the Accountant) and the denominator of which is the total amount in dispute submitted to arbitration. Payment of the Stockholders’ obligation with respect to such fees shall be paid by offset against the outstanding principal amount due and payable pursuant to the Merger Notes consistent with Section 3(f)(i). The balance of such fees and expenses shall be paid by the Company. Notwithstanding anything herein to the contrary, the Parties acknowledge and agree that the intent of the Parties is to determine the items to be set forth in the Closing Schedule in acco...
Resolution of Protest. If Buyer and the Shareholders are unable to resolve any disagreement as to any amount included in or omitted from the Closing Working Capital Statement, then the amounts in dispute shall be referred to the Independent Accountant for final arbitration within forty-five (45) calendar days after submitting the matter to the Independent Accountant, which arbitration shall be final and binding on each of Buyer and the Shareholders. The Independent Accountant shall act as an arbitrator to determine, based solely on the standards set forth in this Agreement and on written presentations by Buyer and the Shareholders, and not by independent review, only those amounts still in dispute. The fees and expenses of the Independent Accountant shall be shared equally between Buyer and the Shareholders. The term “Final Working Capital Statement,” as used in this Agreement, shall mean the Closing Working Capital Statement accepted by the Shareholders or agreed to by Buyer and the Shareholders in accordance with this Agreement or the definitive statement resulting from the determinations made by the Independent Accountant (in addition to those items theretofore accepted by the Shareholders or agreed to by Buyer and the Shareholders). Any determination of the Independent Accountant pursuant to this Section 2.4(d) may be entered into and enforced in any court of competent jurisdiction.
