Common use of Disputed Earn-Out Statement Clause in Contracts

Disputed Earn-Out Statement. The Earn-Out Statement for the Earn-Out Period shall be final, binding and conclusive unless Nightlife notifies Parent in writing of any disagreement therewith (an “Earn-Out Objection Notice”) within twenty (20) Business Days after its receipt thereof, specifying (i) those items as to which there is disagreement and (ii) a reasonably detailed description of the basis, nature, dollar amount and extent of the dispute or disagreement. If Nightlife delivers an Earn-Out Objection Notice within such period, then for a period of thirty (30) Business Days from the date of delivery of the Earn-Out Objection Notice, Parent shall afford Nightlife and its agents or other representatives with reasonable access during normal business hours to the books and records of Acquiror and Parent so as to enable its review of the Earn-Out Statement. Nightlife and Parent shall attempt in good faith to resolve such dispute, and any resolution by them as to any disputed amounts shall be final, binding and conclusive. If Nightlife and Parent are unable to resolve all disputes reflected in the Earn-Out Objection Notice within thirty (30) Business Days after the date of delivery of the Earn-Out Objection Notice (or such longer period as Parent and Nightlife may mutually agree upon), then Nightlife and Parent shall request the Accounting Firm to resolve any remaining disagreements. Parent and Nightlife shall use their commercially reasonable efforts to cause the Accounting Firm to make its determination within forty five (45) Business Days of accepting its selection. The determination by the Accounting Firm shall be final, binding and conclusive on the Parties and shall not be appealable. Nightlife and Parent shall deliver to the Accounting Firm all work papers and back-up materials relating to the unresolved disputes requested by the Accounting Firm to the extent available to Nightlife, Parent and their respective agents or other representatives. Nightlife and Parent shall be afforded the opportunity to present to the Accounting Firm any material related to the unresolved disputes and to discuss the issues with the Accounting Firm; provided, however, that no such presentation or discussion shall occur without the presence of agents or other representatives of Nightlife and Parent. The determination of the Accounting Firm shall be limited to the disagreements submitted to the Accounting Firm. Upon resolution by the Accounting Firm to its satisfaction of all such disputed matters, the Accounting Firm shall cause to be prepared and shall deliver to Nightlife and Parent a final Earn-Out Statement setting forth Acquiror’s EBITDA for the Earn-Out Period, and the date of such delivery by the Accounting Firm shall be deemed the date on which the Earn-Out Statement and Acquiror’s EBITDA for the Earn-Out Period shall become final, binding and conclusive. The fees and expenses of the Accounting Firm shall be borne by Parent.

Disputed Earn-Out Statement. The Earn-Out Statement for the Earn-Out Period shall be final, binding and conclusive unless Nightlife notifies the Transferors notify Parent in writing of any disagreement therewith (an “Earn-Out Objection Notice”) within twenty (20) Business Days after its receipt thereof, specifying (i) those items as to which there is disagreement and (ii) a reasonably detailed description of the basis, nature, dollar amount and extent of the dispute or disagreement. If Nightlife delivers the Transferors deliver an Earn-Out Objection Notice within such period, then for a period of thirty (30) Business Days from the date of delivery of the Earn-Out Objection Notice, Parent shall afford Nightlife the Transferors and its their respective agents or other representatives with reasonable access during normal business hours to the books and records of Acquiror and Parent so as to enable its review of the Earn-Out Statement. Nightlife The Transferors and Parent shall attempt in good faith to resolve such dispute, and any resolution by them as to any disputed amounts shall be final, binding and conclusive. If Nightlife the Transferors and Parent are unable to resolve all disputes reflected in the Earn-Out Objection Notice within thirty (30) Business Days after the date of delivery of the Earn-Out Objection Notice (or such longer period as Parent and Nightlife the Transferors may mutually agree upon), then Nightlife the Transferors and Parent shall request the Independent Accounting Firm to resolve any remaining disagreements. Parent and Nightlife the Transferors shall use their commercially reasonable efforts to cause the Independent Accounting Firm to make its determination within forty five (45) Business Days of accepting its selection. The determination by the Independent Accounting Firm shall be final, binding and conclusive on the Parties and shall not be appealable. Nightlife The Transferors and Parent shall deliver to the Independent Accounting Firm all work papers and back-up materials relating to the unresolved disputes requested by the Independent Accounting Firm to the extent available to Nightlifethe Transferors, Parent and their respective agents or other representatives. Nightlife The Transferors and Parent shall be afforded the opportunity to present to the Independent Accounting Firm any material related to the unresolved disputes and to discuss the issues with the Independent Accounting Firm; provided, however, that no such presentation or discussion shall occur without the presence of agents or other representatives of Nightlife the Transferors and Parent. The determination of the Independent Accounting Firm shall be limited to the disagreements submitted to the Independent Accounting Firm. Upon resolution by the Independent Accounting Firm to its satisfaction of all such disputed matters, the Independent Accounting Firm shall cause to be prepared and shall deliver to Nightlife the Transferors and Parent a final Earn-Out Statement setting forth Acquiror’s EBITDA for the Earn-Out Period, and the date of such delivery by the Independent Accounting Firm shall be deemed the date on which the Earn-Out Statement and Acquiror’s EBITDA for the Earn-Out Period shall become final, binding and conclusive. The fees and expenses of the Independent Accounting Firm shall be borne solely by Parent.

Disputed Earn-Out Statement. The Earn-Out Statement for the Earn-Out Period shall be final, binding and conclusive unless Nightlife notifies the Transferor Parties notify Parent in writing of any disagreement therewith (an “Earn-Out Objection Notice”) within twenty (20) Business Days after its receipt thereof, specifying (i) those items as to which there is disagreement and (ii) a reasonably detailed description of the basis, nature, dollar amount and extent of the dispute or disagreement. If Nightlife delivers the Transferor Parties deliver an Earn-Out Objection Notice within such period, then for a period of thirty (30) Business Days from the date of delivery of the Earn-Out Objection Notice, Parent shall afford Nightlife the Transferor Parties and its their agents or other representatives with reasonable access during normal business hours to the relevant books and records of Acquiror Acquiror, its Designated Affiliates and Parent so as to enable its review of the Earn-Out Statement. Nightlife Transferor Parties and Parent shall attempt in good faith to resolve such dispute, and any resolution by them as to any disputed amounts shall be final, binding and conclusive. If Nightlife the Transferor Parties and Parent are unable to resolve all disputes reflected in the Earn-Out Objection Notice within thirty (30) Business Days after the date of delivery of the Earn-Out Objection Notice (or such longer period as Parent and Nightlife the Transferor Parties may mutually agree upon), then Nightlife the Transferor Parties and Parent shall request the Accounting Firm to resolve any remaining disagreements. Parent and Nightlife the Transferor Parties shall use their commercially reasonable efforts to cause the Accounting Firm to make its determination within forty five (45) Business Days of accepting its selection. The determination by the Accounting Firm shall be final, binding and conclusive on the Parties and shall not be appealable. Nightlife The Transferor Parties and Parent shall deliver to the Accounting Firm all work papers and back-up materials relating to the unresolved disputes requested by the Accounting Firm to the extent available to Nightlifethe Transferor Parties, Parent and their respective agents or other representatives. Nightlife The Transferor Parties and Parent shall be afforded the opportunity to present to the Accounting Firm any material related to the unresolved disputes and to discuss the issues with the Accounting Firm; provided, however, that no such presentation or discussion shall occur without the presence of agents or other representatives of Nightlife the Transferor Parties and Parent. The determination of the Accounting Firm shall be limited to the disagreements submitted to the Accounting Firm. Upon resolution by the Accounting Firm to its satisfaction of all such disputed matters, the Accounting Firm shall cause to be prepared and shall deliver to Nightlife the Transferor Parties and Parent a final Earn-Out Statement setting forth Acquiror’s the Proportionate Adjusted EBITDA for the Earn-Out Period(2014), and the date of such delivery by the Accounting Firm shall be deemed the date on which the Earn-Out Statement and Acquiror’s the Proportionate Adjusted EBITDA for the Earn-Out Period (2014) shall become final, binding and conclusive. The fees and expenses of the Accounting Firm shall be borne by Parent.

Disputed Earn-Out Statement. The Earn-Out Statement for the any Earn-Out Period shall be final, binding and conclusive unless Nightlife Seller notifies Parent Buyer in writing of any disagreement therewith (an “Earn-Out Objection Notice”) within twenty ten (2010) Business Days days after its receipt thereof, specifying (i) those items as to which there is disagreement and (ii) a reasonably detailed description of the basis, nature, dollar amount and extent of the dispute or disagreement. If Nightlife delivers Seller does deliver an Earn-Out Objection Notice within such period, then for a period of thirty (30) Business Days days from the date of delivery of the Earn-Out Objection Notice, Parent Buyer shall afford Nightlife Seller and its agents or other representatives Representatives with reasonable access during normal business hours to the books and financial records of Acquiror and Parent Buyer so as to enable its their review of the Earn-Out Statement. Nightlife Seller and Parent Buyer shall attempt in good faith to resolve such dispute, and any resolution by them as to any disputed amounts shall be final, binding and conclusive. If Nightlife Seller and Parent Buyer are unable to resolve all disputes reflected in the Earn-Out Objection Notice within thirty (30) Business Days days after the date of delivery of the Earn-Out Objection Notice (or such longer period as Parent Buyer and Nightlife Seller may mutually agree upon) (the “Earn-Out Resolution Period”), then Nightlife Seller and Parent Buyer shall request the Accounting Firm to resolve any remaining disagreements. Parent Buyer and Nightlife Seller shall use their commercially reasonable best efforts to cause the Accounting Firm to make its determination within forty five sixty (4560) Business Days days of accepting its selection. The determination by the Accounting Firm shall be final, binding and conclusive on the Parties and shall not be appealable. Nightlife Seller and Parent Buyer shall deliver to the Accounting Firm all work papers and back-up materials relating to the unresolved disputes requested by the Accounting Firm to the extent available to NightlifeSeller, Parent Buyer and their respective agents or other representativesRepresentatives. Nightlife Seller and Parent Buyer shall be afforded the opportunity to present to the Accounting Firm any material related to the unresolved disputes and to discuss the issues with the Accounting Firm; provided, however, that no such presentation or discussion shall occur without the presence of agents or other representatives a Representative of Nightlife both Seller and ParentBuyer. The determination of the Accounting Firm shall be limited to the disagreements submitted to the Accounting FirmFirm and shall be limited in scope as to whether: (i) the Earn-Out Statement was derived from the books and records of Parent and Buyer, in conformity with GAAP, consistent with the consolidated financial statements included in the Parent SEC Reports, and (ii) there were any mathematical errors in the calculation of the Adjusted Business Net Sales, the Business Net Sales and/or the Business EBITDA for the Earn-Out Period. Upon resolution by the Accounting Firm to its satisfaction of all such disputed matters, the Accounting Firm shall cause to be prepared and shall deliver to Nightlife Seller and Parent Buyer a final Earn-Out Statement setting forth Acquiror’s the Adjusted Business Net Sales, the Business Net Sales and/or the Business EBITDA for the Earn-Out Period, and the date of such delivery by the Accounting Firm shall be deemed the date on which the Earn-Out Statement and Acquiror’s the Adjusted Business Net Sales, the Business Net Sales and/or the Business EBITDA for the Earn-Out Period shall become final, binding and conclusive. The fees and expenses of the Accounting Firm shall be borne by ParentBuyer and Seller in proportion to the amount of the disputed item with respect to which such Party’s claim was unsuccessful.

Disputed Earn-Out Statement. The Within 30 days after the Transferors’ receipt of the Earn-Out Statement, the Transferors shall deliver to Parent a written statement either accepting the Earn-Out Statement for the Earn-Out Period shall be final, binding and conclusive unless Nightlife notifies Parent or specifying any objections thereto in writing of any disagreement therewith reasonable detail (an “Earn-Out Objection NoticeObjections Statement”) within twenty (20) Business Days after its receipt thereof), specifying (i) those items as to which there is disagreement objections shall be in reasonable detail describing the nature and (ii) a reasonably detailed description amount of the basis, nature, dollar amount and extent of the dispute or disagreementdisagreement(s) asserted. If Nightlife delivers the Transferors do not deliver an Earn-Out Objection Notice Objections Statement within such 30-day period, then for a period of thirty (30) Business Days from the date of delivery of the Earn-Out Objection NoticeStatement shall become final and binding upon all Parties. If the Transferors do deliver an Earn-Out Objections Statement within such 30-day period, then the Transferors and Parent shall afford Nightlife and its agents negotiate in good faith for 15 days following Parent’s receipt of such Earn-Out Objections Statement to resolve such objections (any unresolved objection, an “Earn-Out Dispute”). After such 15-day period, any item or other representatives with reasonable access during normal business hours to the books and records of Acquiror and Parent so as to enable its review of matter set forth in the Earn-Out Statement. Nightlife Statement that is not an Earn-Out Dispute shall become final and Parent shall attempt in good faith to resolve such dispute, and any resolution by them as to any disputed amounts shall be final, binding and conclusiveupon all parties. If Nightlife Parent and Parent the Transferors are unable to resolve all disputes reflected in the objections during such 15-day period, then any remaining Earn-Out Objection Notice within thirty (30) Business Days after the date of delivery of the Disputes, and only such remaining Earn-Out Objection Notice Disputes, shall be resolved by an independent accounting firm mutually selected by Parent and the Transferors (the “Accounting Firm”). The Accounting Firm shall be instructed to resolve any such remaining Earn-Out Disputes in accordance with the terms of this Agreement within 30 days after its appointment (or such longer period as the Parent and Nightlife the Transferors may mutually agree uponagree), then Nightlife and Parent shall request the Accounting Firm to resolve any remaining disagreements. Parent and Nightlife shall use their commercially reasonable efforts to cause the Accounting Firm to make its determination within forty five (45) Business Days of accepting its selection. The determination resolution of such Earn-Out Disputes by the Accounting Firm (i) shall be finalset forth in writing, binding and conclusive on (ii) shall be within the Parties and shall not be appealable. Nightlife and Parent shall deliver to the Accounting Firm all work papers and back-up materials relating to the unresolved disputes requested by the Accounting Firm to the extent available to Nightlife, range of dispute between Parent and their respective agents or other representatives. Nightlife the Transferors, (iii) shall constitute an arbitral award, and Parent (iv) shall be afforded conclusive and binding upon all the opportunity to present to the Accounting Firm any material related to the unresolved disputes and to discuss the issues with the Accounting Firm; provided, however, that no such presentation or discussion shall occur without the presence of agents or other representatives of Nightlife and Parent. The determination of the Accounting Firm shall parties upon which a judgment may be limited to the disagreements submitted to the Accounting Firmrendered by a court having proper jurisdiction thereover. Upon resolution by the Accounting Firm to its satisfaction delivery of all such disputed mattersresolution, the Accounting Firm shall cause to be prepared and shall deliver to Nightlife and Parent a final Earn-Out Statement setting forth Acquiror’s EBITDA for the Earn-Out PeriodStatement, and the date of as modified in accordance with such delivery by the Accounting Firm shall be deemed the date on which the Earn-Out Statement and Acquiror’s EBITDA for the Earn-Out Period resolution, shall become final, final and binding and conclusive. The fees and expenses of the Accounting Firm shall be borne by Parentupon all parties.