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Common use of Dispute Resolution Mechanism Clause in Contracts

Dispute Resolution Mechanism. (a) The parties hereto acknowledge the need to resolve any disputes arising hereunder that become subject to the following dispute resolution mechanism quickly and expeditiously, and agree to work toward such a resolution. In the event that any valuation or equitable adjustment of rights relating to the procedures and transactions described in this Article I becomes a subject of disagreement between the holders of a majority of the rights depending upon such determination and the Company or one of its Operating Subsidiaries, as applicable, (i) such majority holders and the Company or such Operating Subsidiary, as applicable, promptly (and in any event within three business days) shall provide each other with their respective written proposed valuations or equitable adjustments of rights (including any supporting documentation and the basis for such position), and the Company or such Operating Subsidiary (as applicable) and Silver Lake (if it or its Affiliates hold any such rights), or another representative appointed by such majority holders (if Silver Lake and its Affiliates do not hold any of such rights) (in either such case, the "Investor Representative") shall promptly (and in any event within three business days after the receipt of the other's respective proposed valuation or equitable adjustment) commence negotiating in good faith to reach agreement as to an agreed-upon valuation or equitable adjustment of rights (and any such agreement shall be binding upon the Company or such Operating Subsidiary, as applicable, and all of the holders of the rights depending upon such determination), and (ii) in the event that they fail to reach agreement within five business days following commencement of such negotiations, such valuation or equitable adjustment of rights shall be determined as follows: (A) the Company or Operating Subsidiary, as applicable, and the Investor Representative promptly (and in any event within three business days thereafter) shall together retain a nationally recognized investment banking firm (the "Investment Bank") that has had no material business relationships with the Company or the majority holders of the rights depending upon such determination during the preceding one-year period (unless they shall at the time mutually agree to select an Investment Bank having such business relationships), (B) the Company or Operating Subsidiary, as applicable, promptly shall submit to such Investment Bank the proposed valuation or equitable adjustment of rights that it first provided to such majority holders (including any supporting documentation provided to such majority holders), (C) the Investor Representative shall submit to such Investment Bank the proposed valuation or equitable adjustment of rights that the majority holders first provided to the Company or Operating Subsidiary, as applicable (including any supporting documentation provided by such majority holders), and (D) such Investment Bank promptly (but in the case of any event described in clause (iii) of the definition of Purchase Right Flip-Up Event, no later than two business days prior to the consummation of such event, and in any event within ten business days, in each case to the extent reasonably achievable by such Investment Bank) shall select whichever of such two proposed valuations or equitable adjustments of rights is closer to its determination of the correct valuation or equitable adjustment of rights, which selected valuation or equitable adjustment of rights shall be binding upon the Company or such Operating Subsidiary, as applicable, and all of the holders of the rights depending upon such determination (with the Company or such Operating Subsidiary, as applicable, paying the fees and expenses of the Investment Bank if the majority holders' valuation or equitable adjustment of rights is selected and the majority holders of such rights paying such fees and expenses if the Company's or Operating Subsidiary's, as applicable, valuation or equitable adjustment of rights is selected (and the other holders of such rights shall reimburse the majority holders therefore pro rata based upon their respective ownership of such rights)). (b) In the event that the Dispute Resolution Mechanism is required to determine any valuation or equitable adjustment of rights under this Article I, or in the event that regulatory or other third-party approvals are required to be obtained by any holder of rights under this Article I in connection with any transaction, if the action to be taken by the Company that has given rise to such dispute or need for such approvals is scheduled to be consummated prior to completion of the resolution of such dispute pursuant to the Dispute Resolution Mechanism or receipt of such approvals, as applicable, such action may be taken by the Company in its discretion prior to such resolution or receipt, and the rights of such holders under this Article I shall be preserved and shall be effected following the consummation of such action by the Company when such dispute has been resolved pursuant to the Dispute Resolution Mechanism or such approvals have been obtained, as applicable.

Appears in 4 contracts

Samples: Securities Purchase Agreement (Cabletron Systems Inc), Securities Purchase Agreement (Aprisma Management Technologies Inc), Securities Purchase Agreement (Riverstone Networks Inc)

Dispute Resolution Mechanism. (a) The parties hereto acknowledge the need to resolve any disputes arising hereunder that become subject to the following a. A third party gatekeeper/arbiter shall be identified along with a simple, speedy dispute resolution mechanism quickly and expeditiouslyin the event of any disagreement among the Parties regarding the matters set forth in this Exhibit A. b. The arbiter shall be mutually agreed to by the Parties. When a dispute arises among the Parties, and the arbiter shall consider in good faith the position(s) of each Party in the dispute which the Parties shall have [Redacted – time period] business days to submit to such arbiter. The arbiter shall render his/her decision in an unbiased manner in accordance with the patent laws of the jurisdiction of the patent application as to which such disagreement pertains within [Redacted – time period] business days of receiving all relevant documentation from the Parties and, at the arbiter’s discretion, discussion with the Parties; provided, however, that the arbiter shall hold no ex parte meetings or substantive conversations with a Party without the consent of the other Party. c. In the event that the arbiter is no longer willing or capable of serving in this function a replacement shall be selected or if the Parties cannot agree to work toward a replacement arbiter, one will be selected as follows: i. Each of the Parties shall nominate five (5) potential arbiters and any potential arbiter appearing on both Parties’ lists shall be the arbiter and the Parties shall attempt in good faith to secure such a resolutionarbiter’s services. In the event that any valuation or equitable adjustment of rights relating to the procedures and transactions described in this Article I becomes a subject of disagreement between the holders of a majority of the rights depending upon there is more than one (1) arbiter that appears on both such determination and the Company or one of its Operating Subsidiaries, as applicable, (i) such majority holders and the Company or such Operating Subsidiary, as applicable, promptly (and in any event within three business days) shall provide each other with their respective written proposed valuations or equitable adjustments of rights (including any supporting documentation and the basis for such position), and the Company or such Operating Subsidiary (as applicable) and Silver Lake (if it or its Affiliates hold any such rights), or another representative appointed by such majority holders (if Silver Lake and its Affiliates do not hold any of such rights) (in either such caselists, the "Investor Representative") Parties shall promptly (and in any event within three business days after the receipt of the other's respective proposed valuation or equitable adjustment) commence negotiating agree in good faith which arbiter to reach agreement as to an agreed-upon valuation or equitable adjustment of rights (and any such agreement shall be binding upon the Company or such Operating Subsidiary, as applicable, and all of the holders of the rights depending upon such determination), and (ii) in the event that they fail to reach agreement within five business days following commencement of such negotiations, such valuation or equitable adjustment of rights shall be determined as follows: (A) the Company or Operating Subsidiary, as applicable, and the Investor Representative promptly (and in any event within three business days thereafter) shall together retain a nationally recognized investment banking firm (the "Investment Bank") that has had no material business relationships with the Company or the majority holders of the rights depending upon such determination during the preceding one-year period (unless they shall at the time mutually agree to select an Investment Bank having such business relationships), (B) the Company or Operating Subsidiary, as applicable, promptly shall submit to such Investment Bank the proposed valuation or equitable adjustment of rights that it first provided to such majority holders (including any supporting documentation provided to such majority holders), (C) the Investor Representative shall submit to such Investment Bank the proposed valuation or equitable adjustment of rights that the majority holders first provided to the Company or Operating Subsidiary, as applicable (including any supporting documentation provided by such majority holders), and (D) such Investment Bank promptly (but in the case of any event described in clause (iii) of the definition of Purchase Right Flip-Up Event, no later than two business days prior to the consummation of such event, and in any event within ten business days, in each case to the extent reasonably achievable by such Investment Bank) shall select whichever of such two proposed valuations or equitable adjustments of rights is closer to its determination of the correct valuation or equitable adjustment of rights, which selected valuation or equitable adjustment of rights shall be binding upon the Company or such Operating Subsidiary, as applicable, and all of the holders of the rights depending upon such determination (with the Company or such Operating Subsidiary, as applicable, paying the fees and expenses of the Investment Bank if the majority holders' valuation or equitable adjustment of rights is selected and the majority holders of such rights paying such fees and expenses if the Company's or Operating Subsidiary's, as applicable, valuation or equitable adjustment of rights is selected (and the other holders of such rights shall reimburse the majority holders therefore pro rata based upon their respective ownership of such rights)). (b) approach first. In the event that there are no arbiters in common, the Dispute Resolution Mechanism is required to determine any valuation Parties shall repeat the process until an arbiter appears on both such lists or equitable adjustment of rights under this Article I, or in until the event that regulatory or other third-party approvals are required to be obtained by any holder of rights under this Article I in connection with any transaction, if the action to be taken by the Company that has given rise to such dispute or need for such approvals is scheduled to be consummated prior to completion Parties can otherwise agree on an arbiter. d. The costs of the resolution of such dispute pursuant to the Dispute Resolution Mechanism or receipt of such approvals, as applicable, such action may be taken by the Company in its discretion prior to such resolution or receipt, and the rights of such holders under this Article I arbiter shall be preserved and shall be effected following divided equally between the consummation of such action by the Company when such dispute has been resolved pursuant to the Dispute Resolution Mechanism or such approvals have been obtained, as applicableParties.

Appears in 3 contracts

Samples: Cross License Agreement, Cross License Agreement (TEKMIRA PHARMACEUTICALS Corp), Cross License Agreement (TEKMIRA PHARMACEUTICALS Corp)

Dispute Resolution Mechanism. (a) The parties hereto acknowledge the need to resolve any disputes arising hereunder that become subject to the following dispute resolution mechanism quickly and expeditiously, and agree to work toward such a resolution. In the event that any valuation or equitable adjustment of rights relating to the procedures and transactions described in this Article I becomes a subject of disagreement between the holders of a majority of the rights depending upon such determination and the Company or one of its Operating Subsidiaries, as applicable, (i) such majority holders and the Company or such Operating Subsidiary, as applicable, promptly (and in any event within three business days) shall provide each other with their respective written proposed valuations or equitable adjustments of rights (including any supporting documentation and the basis for such position), and the Company or such Operating Subsidiary (as applicable) and Silver Lake (if it or its Affiliates hold any such rights), or another representative appointed by such majority holders (if Silver Lake and its Affiliates do not hold any of such rights) (in either such case, the "Investor Representative") shall promptly (and in any event within three business Within 30 days after the receipt of the other's respective Exchange Investment Statement or 60 days after receipt of the Reinitialization Statement (each, a "Post-Closing Statement"), as the case may be, Seller may, in a written notice to Buyer, describe in reasonable detail any proposed valuation adjustments to the relevant Post-Closing Statement in question and the reasons therefor. If Buyer shall not have received a notice of proposed adjustments within such 30 or equitable adjustment60 day period, as the case may be, Seller will be deemed irrevocably to have accepted such Post-Closing Statement. (ii) commence negotiating If Seller disputes any portion of the Post-Closing Statement, the parties shall calculate the portion of the undisputed amount, if any, and such amount shall be paid by the appropriate party within five business days of the determination of the undisputed amount. Buyer and Seller shall negotiate in good faith to reach agreement as to an agreed-upon valuation resolve any dispute. If any dispute cannot be resolved within 30 days following Buyer's receipt of the proposed adjustment, Deloitte & Touche or equitable adjustment of rights (another independent public accounting firm that is nationally recognized in the United States jointly selected by Buyer and any such agreement Seller shall be binding upon engaged to resolve such disputes in accordance with the Company or such Operating Subsidiarystandards set forth in this Section, as applicable, and all of the holders of the rights depending upon such determination), and (ii) in the event that they fail to reach agreement within five business days following commencement of such negotiations, such valuation or equitable adjustment of rights which resolution shall be determined as follows: (A) the Company or Operating Subsidiary, as applicable, final and the Investor Representative promptly (and in any event within three business days thereafter) shall together retain a nationally recognized investment banking firm (the "Investment Bank") that has had no material business relationships with the Company or the majority holders of the rights depending upon such determination during the preceding one-year period (unless they shall at the time mutually agree to select an Investment Bank having such business relationships), (B) the Company or Operating Subsidiary, as applicable, promptly shall submit to such Investment Bank the proposed valuation or equitable adjustment of rights that it first provided to such majority holders (including any supporting documentation provided to such majority holders), (C) the Investor Representative shall submit to such Investment Bank the proposed valuation or equitable adjustment of rights that the majority holders first provided to the Company or Operating Subsidiary, as applicable (including any supporting documentation provided by such majority holders), and (D) such Investment Bank promptly (but in the case of any event described in clause (iii) of the definition of Purchase Right Flip-Up Event, no later than two business days prior to the consummation of such event, and in any event within ten business days, in each case to the extent reasonably achievable by such Investment Bank) shall select whichever of such two proposed valuations or equitable adjustments of rights is closer to its determination of the correct valuation or equitable adjustment of rights, which selected valuation or equitable adjustment of rights shall be binding upon the Company or such Operating Subsidiary, as applicable, and all of the holders of the rights depending upon such determination (with the Company or such Operating Subsidiary, as applicable, paying the binding. The fees and expenses of such accounting firm shall be shared by Buyer and Seller in inverse proportion to the Investment Bank if relative amounts of the majority holders' valuation or equitable adjustment disputed amount determined to be for the account of rights is selected Buyer and the majority holders Seller, respectively. Upon delivery of such rights paying such fees and expenses if the Companypublic accounting firms's or Operating Subsidiary's, as applicable, valuation or equitable adjustment of rights is selected (and the other holders of such rights shall reimburse the majority holders therefore pro rata based upon their respective ownership of such rights)). (b) In the event that the Dispute Resolution Mechanism is required to determine any valuation or equitable adjustment of rights under this Article I, or in the event that regulatory or other third-party approvals are required to be obtained by any holder of rights under this Article I in connection with any transaction, if the action to be taken by the Company that has given rise to such dispute or need for such approvals is scheduled to be consummated prior to completion of the resolution of such dispute pursuant to the Dispute Resolution Mechanism or receipt of such approvalsparties, as applicable, such action may be taken by the Company in its discretion prior party required to make a payment pursuant to such resolution or receiptshall promptly, and the rights of but no later than five business days after such holders under this Article I shall be preserved and shall be effected following the consummation of such action by the Company when such dispute has been resolved pursuant delivery, pay to the Dispute Resolution Mechanism or other party the amount determined by such approvals have been obtained, as applicablepublic accounting firm to be owed to such party.

Appears in 3 contracts

Samples: Purchase and Sale Agreement (Citizens Utilities Co), Purchase and Sale Agreement (U S West Communications Inc), Purchase and Sale Agreement (U S West Inc /De/)