Common use of Determination of Disputes by Neutral Firm Clause in Contracts

Determination of Disputes by Neutral Firm. If Buyer and Seller are unable to completely resolve any such disagreement within the Negotiating Period, the unresolved issues (the “Working Capital Dispute”) shall be promptly submitted for resolution to Xxxxx Xxxxxxxx LLP or, if Xxxxx Xxxxxxxx LLP is unable or unwilling to serve in such capacity, a recognizable, reputable and impartial certified public accounting firm that is mutually acceptable to Buyer and Seller (the “Neutral Firm”). If Buyer and Seller cannot agree upon a Neutral Firm within ten (10) days, the Washington, DC office of the American Arbitration Association shall choose a recognized, reputable and impartial certified public accounting firm (other than a firm that has provided services within the past five (5) years to Buyer, Seller or any of their respective Affiliates) to act as the Neutral Firm. The parties shall instruct the Neutral Firm to (A) promptly (and, to the extent practicable, no later than sixty (60) days after the Neutral Firm’s receipt of such instructions) determine (it being understood that in making such determination, the Neutral Firm shall be functioning as an expert and not as an arbitrator), based solely on written submissions by Seller and Buyer, and not by independent review, only those issues in dispute and (B) render a written report as to the resolution of the Working Capital Dispute which, absent manifest error, shall be conclusive and binding on the parties. In resolving any Working Capital Dispute, the Neutral Firm (x) shall be instructed to comply with the provisions of this Section 3.3(d) and (y) may not assign a value to any item greater than the greatest value for such items claimed by either party or less than the smallest value for such items claimed by either party. Neither Buyer nor Seller (or any of their respective Affiliates or representatives) shall have any ex parte communications or meetings with the Neutral Firm without reasonable prior notice (which notice shall provide the other party a reasonable opportunity to participate in such communications or meetings), to Buyer (in the case of Seller) or Seller (in the case of Buyer). The fees and expenses of the Neutral Firm shall be borne one-half (1/2) by Buyer, on the one hand, and one-half (1/2) by Seller, on the other hand.

Determination of Disputes by Neutral Firm. If Buyer and Seller Sellers are unable to completely resolve any such disagreement within the Negotiating Period, the unresolved issues (and only such unresolved issues) (such unresolved issues collectively, the “Working Capital Dispute”) shall be promptly submitted for resolution to Xxxxx Xxxxxxxx LLP or, if Xxxxx Xxxxxxxx LLP is unable or unwilling to serve in such capacity, a recognizable, reputable and impartial certified public accounting firm that is mutually acceptable to Buyer and Seller Sellers (the “Neutral Firm”). If Buyer and Seller Sellers cannot agree upon a Neutral Firm within ten (10) days, the Washington, DC New York City office of the American Arbitration Association shall choose a recognized, reputable and impartial certified public accounting firm (other than a firm that has provided services within the past five (5) years to any Affiliate of Buyer, Seller PricewaterhouseCoopers LLP, Ernst & Young LLP, KPMG LLP, Xxxxx Xxxxxxxx LLP and Lattimore, Black, Xxxxxx & Xxxx P.C. or any of their respective Affiliates) to act as the Neutral Firm. The Neutral Firm shall be instructed to resolve any outstanding Dispute. The parties shall instruct the Neutral Firm to render its determination within thirty (A) promptly (and, to the extent practicable, no later than sixty (6030) days after of the Neutral Firm’s receipt referral of such instructions) determine (it being understood that in making such determinationDispute thereto, and the determination of the Neutral Firm shall be functioning as an expert and not as an arbitrator), based solely on written submissions by Seller and Buyer, and not by independent review, only those issues in dispute and (B) render a written report as to the resolution of the Working Capital Dispute which, absent manifest error, shall be conclusive final and binding on upon the parties. In resolving any Working Capital Dispute, the Neutral Firm (x) shall be instructed to comply with the provisions parties hereto for all purposes of this Section 3.3(d) and (y) may not assign a value to any item greater than the greatest value for such items claimed by either party or less than the smallest value for such items claimed by either partyAgreement. Neither Buyer nor Seller (or any of their respective Affiliates or representatives) Sellers shall have any ex parte communications or meetings with the Neutral Firm without reasonable prior notice (which notice shall provide the other party a reasonable opportunity to participate in such communications or meetings), to Buyer (in the case of SellerSellers) or Seller Sellers (in the case of Buyer). The fees and expenses of the Neutral Firm shall be borne one-half (1/2) by Buyer, on the one hand, and one-half (1/2) by SellerSellers, on the other hand, in the same proportion that the aggregate dollar amount subject to Dispute which is not resolved in favor of Buyer and Sellers, as applicable, bears to the total dollar amount subject to the Dispute resolved by the Neutral Firm. For illustration purposes only, (A) if the total amount of the Dispute is $100,000, and Sellers are awarded $50,000 by the Neutral Firm, Buyer and Sellers shall bear the Neutral Firm’s fees and expenses equally; and (B) if the total amount of the Dispute is $100,000, and Sellers are awarded $25,000 by the Neutral Firm, Sellers shall bear seventy-five percent (75%) and Buyer shall bear twenty-five percent (25%) of the Neutral Firm’s fees and expenses.

Determination of Disputes by Neutral Firm. If Buyer and Seller are unable to completely resolve any such disagreement within the Negotiating Period, the unresolved issues (the “Working Capital Dispute”) shall be promptly submitted for resolution to Xxxxx Xxxxxxxx LLP or, if Xxxxx Xxxxxxxx LLP is unable or unwilling to serve in such capacity, a recognizablerecognized, reputable and impartial certified public accounting firm that is mutually acceptable to Buyer and Seller (the “Neutral Firm”). If Buyer and Seller cannot agree upon a Neutral Firm within ten (10) days, the Washington, DC New York City office of the American Arbitration Association shall choose a nationally recognized, reputable and impartial certified public accounting firm (other than a firm that has provided services within the past five (5) years to BuyerDeloitte LLP, Seller PricewaterhouseCoopers LLP, Ernst & Young LLP and KPMG LLP or any of their respective Affiliates) to act as the Neutral Firm. The parties shall instruct the Neutral Firm to (Ai) promptly (and, to the extent practicable, no later than sixty (60) days after the Neutral Firm’s receipt of such instructions) determine (it being understood that in making such determination, the Neutral Firm shall be functioning as an expert and not as an arbitrator), based solely on written submissions by Seller and Buyer, and not by independent review, only those issues in dispute and (Bii) render a written report as to the resolution of the Working Capital Dispute which, absent manifest error, shall be conclusive and binding on the partiesparties for purposes of determining the Actual Net Working Capital Amount. In resolving any Working Capital Dispute, the Neutral Firm (xA) shall be instructed to comply with the provisions of this Section 3.3(d) and (yB) may not assign a value to any item greater than the greatest value for such items claimed by either party or less than the smallest value for such items claimed by either party. Neither Buyer nor Seller (or any of their respective Affiliates or representatives) shall have any ex parte communications or meetings with the Neutral Firm without reasonable prior notice (which notice shall provide the other party a reasonable opportunity to participate in such communications or meetings), ) to Buyer (in the case of Seller) or Seller (in the case of Buyer)other party. The fees and expenses of the Neutral Firm shall be borne one-half (1/2) by Buyer, allocated between Buyer and Seller based on the one handinverse of the percentage that its determination (before such allocation) in favor of a party bears to the aggregate amount of the items in dispute as originally submitted to the Neutral Firm. By way of illustration and not limitation, assuming the items in dispute total an amount equal to $1,000 and one-half (1/2) the Neutral Firm awards $600 in favor of the Seller’s position, 60% of the costs of its review would be borne by Buyer and 40% of such costs would be borne by Seller, on the other hand.