Common use of Resolution by Accounting Referee Clause in Contracts

Resolution by Accounting Referee. (i) If Purchaser and Parent do not resolve to their mutual satisfaction all disputed adjustments in the Notice of Disagreement within the 30-day period after Parent’s delivery of the Notice of Disagreement, any remaining disputed adjustments that were included in the Notice of Disagreement will be settled by KPMG LLP (or, if such accounting firm declines to act or is not, at the time of submission thereto, independent of Purchaser or Parent, to another independent accounting firm of national reputation mutually acceptable to Purchaser and Parent) (the “Accounting Referee”) in accordance with the following provisions of this Section 2.3(d). (ii) Parent will furnish the Accounting Referee with a copy of this Agreement, the Financial Statements, the Preliminary Statement, the Notice of Disagreement and any other relevant correspondence between the Parties. Purchaser and Parent will also give the Accounting Referee: (A) position papers outlining such Party’s respective arguments and supporting documentation for such Party’s position; provided, however, that Purchaser’s positions, arguments and computations must match those set forth in the Preliminary Statement or agreed to with Parent pursuant to Section 2.3(c) above (and the Accounting Referee will not consider any that do not so match), and Parent’s positions, arguments and computations must match those set forth in the Notice of Disagreement or agreed to with Purchaser pursuant to Section 2.3(c) above (and the Accounting Referee will not consider any that do not so match); and (B) reasonable access to the books and records of the Business, including any work papers or other schedules prepared by such Party’s accountants (subject to compliance with such Party’s accountants’ customary procedures for release) relating to the preparation of the Preliminary Statement and the Notice of Disagreement. (iii) The Accounting Referee’s engagement will be limited to (A) reviewing the Preliminary Statement and the matters that were set forth in the Notice of Disagreement pursuant to Section 2.3(b)(ii) and that remain in dispute (the “Unresolved Matters”); (B) determining (1) whether, for the calculation of the Closing Adjustment, Closing Net Working Capital, Outstanding Indebtedness, the Change of Control Payment Amount and Cash, as the case may be, such calculation was prepared in accordance with the terms of this Agreement (including the Accounting Principles, as applicable), and only with respect to the Unresolved Matters, whether and to what extent the Preliminary Statement requires adjustment and (2) whether there were mathematical errors in the Preliminary Statement; (C) preparing the Final Statement, which will include those amounts in the Preliminary Statement accepted by Parent pursuant to Section 2.3(b)(ii), those adjustments otherwise agreed to in writing by Purchaser and Parent pursuant to Section 2.3(c), and a final determination of the Unresolved Matters set forth in the Notice of Disagreement; and (D) calculating the Closing Adjustment. With respect to each Unresolved Matter, the Accounting Referee’s determination, if not in accordance with the position of Parent or Purchaser, will not be in excess of the higher, or less than the lower, of the amounts advocated by Parent or Purchaser with respect thereto. The fees and expenses of the Accounting Referee, with respect to its engagement under this Section 2.3(d), will be borne by Parent and Purchaser in inverse proportion as they may prevail on matters resolved by the Accounting Referee, which proportionate allocations will also be determined by the Accounting Referee at the time the determination of the Accounting Referee is rendered on the Final Statement and the Closing Adjustment. (iv) The Parties will instruct the Accounting Referee to (A) complete its preparation of the Final Statement and the Closing Adjustment within 25 days from the date of submission of the disputed adjustments to the Accounting Referee pursuant to Section 2.3(d)(ii) and (B) deliver promptly thereafter a copy of the Final Statement and the Closing Adjustment to Parent and Purchaser, together with a report setting forth each disputed adjustment and the Accounting Referee’s determination with respect thereto. The Accounting Referee’s determination will be conclusive and binding upon the Parties and may be entered and enforced in any court of competent jurisdiction.

Resolution by Accounting Referee. (i) If Purchaser and Parent do not resolve to their mutual satisfaction all disputed adjustments in the Notice of Disagreement within the 30-day period after Parent’s delivery of the Notice of Disagreement, any remaining disputed adjustments that were included in the Notice of Disagreement will be settled by KPMG BDO USA, LLP (or, if such accounting firm declines to act or is notact, at the time of submission thereto, independent of Purchaser or Parent, to another by an independent accounting firm of national reputation mutually acceptable to Purchaser and Parent) (the “Accounting Referee”) in accordance with the following provisions of this Section 2.3(d1.4(d). (ii) Parent will furnish the Accounting Referee with a copy of this Agreement, the Financial Statements, the Preliminary Statement, Statement and the Notice of Disagreement and any other relevant correspondence between the PartiesDisagreement. Purchaser and Parent will also give the Accounting Referee: (A) position papers outlining such Party’s respective arguments and supporting documentation for such Party’s position; provided, however, that Purchaser’s positions, arguments and computations must match those set forth in the Preliminary Statement or agreed to with Parent pursuant to Section 2.3(c1.4(c) above (and the Accounting Referee will not consider any that do not so match), and Parent’s positions, arguments and computations must match those set forth in the Notice of Disagreement or agreed to with Purchaser pursuant to Section 2.3(c1.4(c) above (and the Accounting Referee will not consider any that do not so match); and (B) reasonable access to the books and records of the Business, including any work papers or other schedules prepared by such Party’s accountants (subject to compliance with such Party’s accountants’ customary procedures for release) relating to the preparation of the Preliminary Statement and the Notice of Disagreement. (iii) The Accounting Referee’s engagement will be as an expert and not as an arbitrator, and will be limited to (A) reviewing the Preliminary Statement Statement, the Notice of Disagreement and the matters that were set forth amounts placed in dispute by the Notice of Disagreement pursuant to Section 2.3(b)(ii1.4(b)(ii) and that remain in dispute (the “Unresolved Matters”); (B) determining (1) whether, whether Purchaser’s proposed amount for each individual item in the calculation Preliminary Statement or Parent’s proposed adjustment thereto in the Notice of the Closing Adjustment, Closing Net Working Capital, Outstanding Indebtedness, the Change of Control Payment Amount and Cash, as the case may be, such calculation was prepared Disagreement is calculated more nearly in accordance with the terms of this Agreement (including the Accounting Principles, as applicable), and only with respect to the Unresolved Matters, whether and to what extent the Preliminary Statement requires adjustment ) and (2) whether there were mathematical errors in the Preliminary Statement; (C) preparing the Final Statement, which will include those amounts in the Preliminary Statement accepted by Parent pursuant to Section 2.3(b)(ii1.4(b)(iii), those adjustments otherwise agreed to in writing by Purchaser and Parent pursuant to Section 2.3(c1.4(c), and a final determination of those amounts determined by the Accounting Referee for the Unresolved Matters set forth to be calculated more nearly in accordance with this Agreement (including the Notice of DisagreementAccounting Principles); and (D) calculating the Closing Adjustment. With respect to each Unresolved Matter, the Accounting Referee’s determination, if not in accordance with the position of Parent or Purchaser, will not be in excess of the higher, or less than the lower, of the amounts advocated by Parent or Purchaser with respect thereto. The fees and expenses of the Accounting Referee, with respect to its engagement under this Section 2.3(d), Referee will be borne by Parent and Purchaser in inverse proportion as they may prevail on matters resolved by the Accounting Referee, which proportionate allocations will also be determined by the Accounting Referee at the time the determination of the Accounting Referee is rendered on the Final Statement and the Closing Adjustment. (iv) The Parties will instruct the Accounting Referee to (A) complete its preparation of the Final Statement and calculation of the Closing Adjustment within 25 days from the date of submission of the disputed adjustments Unresolved Matters to the Accounting Referee pursuant to Section 2.3(d)(ii1.4(d)(ii) and (B) deliver promptly thereafter a copy of the Final Statement and its calculation of the Closing Adjustment to Parent and Purchaser, together with a report setting forth each disputed adjustment Unresolved Matter and the Accounting Referee’s determination with respect thereto. The Accounting Referee’s determination will be conclusive and binding upon the Parties and may be entered and enforced in any court of competent jurisdiction.

Resolution by Accounting Referee. (i) If Seller and Purchaser and Parent do not resolve are unable to their mutual satisfaction all disputed adjustments in reach agreement on the Notice calculation of Disagreement the Adjustment Amount within the 3020-day period after Parentfollowing Purchaser’s delivery receipt of the Notice of Disagreement, then either Seller or Purchaser may submit any remaining disputed adjustments that were included in the Notice of Disagreement will be settled by KPMG LLP to Ernst & Young Global Limited (or, if such accounting firm declines to act or is not, at not independent as of the time of any such submission thereto, independent of Purchaser or Parenta disputed adjustment, to another an independent accounting firm mutually acceptable to Purchaser and Seller, or if Purchaser and Seller are not able to agree on a mutually acceptable independent accounting firm within 30 days, then an independent accounting firm of national reputation mutually acceptable to Purchaser and Parentstanding in the United States) (the “Accounting Referee”) in accordance with the following provisions of this Section 2.3(d1.4(d); provided that the Accounting Referee will not have provided audit, accounting, or other services to Purchaser or Seller or their respective Affiliates in the past five years; provided, further, that the Accounting Referee will act as an expert and not an arbitrator in resolving such disputes. (ii) Parent Seller will furnish the Accounting Referee with a copy of this Agreement, the Financial StatementsEstimated Closing Adjustment Statement, the Preliminary Statement, Adjustment Statement and the Notice of Disagreement and any other relevant correspondence between the PartiesDisagreement. Purchaser and Parent Seller will also give furnish to the Accounting Referee: (A) Referee position papers outlining such Party’s respective arguments and supporting documentation for such Party’s position; provided, however, that Purchaser’s positions, arguments and computations must match those set forth in the Preliminary Adjustment Statement or agreed to with Parent Seller pursuant to Section 2.3(c1.4(c) above (and the Accounting Referee will not consider any that do not so match), and ParentSeller’s positions, arguments and computations must match those set forth in the Notice of Disagreement or agreed to with Purchaser pursuant to Section 2.3(c1.4(c) above (and the Accounting Referee will not consider any that do not so match); and (B) reasonable access to the books and records of the Business, including any work papers or other schedules prepared by such Party’s accountants (subject to compliance with such Party’s accountants’ customary procedures for release) relating to the preparation of the Preliminary Statement and the Notice of Disagreement. (iii) The Accounting Referee’s engagement will be limited to to: (A) reviewing the Preliminary Adjustment Statement and the matters that were amounts in dispute as set forth in the Notice of Disagreement pursuant to Section 2.3(b)(ii) and that remain in dispute (the “Unresolved Matters”); (B) determining (1) whether, for the calculation of the Closing Adjustment, Closing Net Working Capital, Outstanding Indebtedness, the Change of Control Payment Amount and Cash, as the case may be, such calculation was prepared in accordance with the terms of this Agreement (including the Accounting Principles, as applicable), and only an amount with respect to any such Unresolved Matter that is within the Unresolved Matters, whether range defined by the respective amounts proposed by Purchaser and to what extent the Preliminary Statement requires adjustment Seller; and (2) whether there were mathematical errors in the Preliminary Statement; (C) preparing calculating the Final StatementAdjustment Amount, which will include those amounts in the Preliminary Adjustment Statement accepted by Parent Seller pursuant to Section 2.3(b)(ii1.4(b)(iii), those adjustments otherwise agreed to in writing by Purchaser and Parent Seller pursuant to Section 2.3(c1.4(c), and a final determination of those amounts determined by the Accounting Referee for the Unresolved Matters set forth in accordance with this Agreement (including the Notice of Disagreement; and (D) calculating the Closing AdjustmentAccounting Principles). With respect to each Unresolved Matter, the The Accounting Referee’s determination, if determination will be based solely on information provided to the Accounting Referee by Purchaser and Seller and not in accordance with the position of Parent or Purchaser, will not be in excess of the higher, or less than the lower, of the amounts advocated by Parent or Purchaser with respect theretobased on any independent review. The fees and expenses of the Accounting Referee, with respect to its engagement under this Section 2.3(d), Referee will be borne by Parent Seller and Purchaser in inverse proportion as they may prevail on matters resolved by the Accounting Referee, which proportionate allocations will also be determined by the Accounting Referee at the time of the determination of Adjustment Amount by the Accounting Referee; provided that any retainer or other upfront costs or expenses of the Accounting Referee is rendered on will be equally divided between Seller and Purchaser, subject to re-allocation as set forth above; provided, further, that the Final Statement and Escrow Amount shall serve as the Closing Adjustmentsole source of recovery for any fees, costs or expenses payable by Seller under this Section 1.4(d). (iv) The Parties will instruct the Accounting Referee to (A) complete its preparation calculation of the Final Statement and the Closing Adjustment Amount within 25 30 days from the date of submission of the disputed adjustments Unresolved Matters to the Accounting Referee pursuant to Section 2.3(d)(ii1.4(d)(ii) and (B) deliver promptly thereafter a copy its calculation of the Final Statement and the Closing Adjustment Amount to Parent Seller and Purchaser, together with a concise and reasoned written report setting forth each disputed adjustment Unresolved Matter and the Accounting Referee’s determination with respect thereto. The Accounting Referee’s determination and calculation of the Adjustment Amount will be conclusive and binding upon the Parties (absent mathematical errors by the Accounting Referee) for all purposes of this Agreement and may be entered and enforced in any court of competent jurisdictionjurisdiction as an arbitral award.

Resolution by Accounting Referee. (i) If Purchaser and Parent the Company do not resolve to their mutual satisfaction all disputed adjustments in the Notice of Disagreement within the 30-day period after ParentPurchaser’s delivery of the Notice of Disagreement, any remaining disputed adjustments that were included in the Notice of Disagreement will be settled by KPMG the New York, New York office of Xxxxx Xxxxxxxx LLP (or, if such accounting firm declines to act or is not, at the time of submission thereto, independent of Purchaser or Parentthe Company, to another independent accounting firm of national reputation mutually acceptable to Purchaser and Parentthe Company) (the “Accounting Referee”) in accordance with the following provisions of this Section 2.3(d1.5(d). (ii) Parent The Company will furnish the Accounting Referee with a copy of this Agreement, the Company Financial Statements, the Preliminary Statement, the Notice of Disagreement and any other relevant correspondence between the Parties. Purchaser and Parent the Company each will also give the Accounting Referee: (A) position papers outlining such Party’s respective arguments and supporting documentation for such Party’s position; provided, however, that Purchaser’s positions, arguments and computations must match those set forth in the Preliminary Statement or agreed to with Parent pursuant to Section 2.3(c) above (and the Accounting Referee will not consider any that do not so match), and Parent’s positions, arguments and computations must match those set forth in the Notice of Disagreement or agreed to with Purchaser pursuant to Section 2.3(c) above (and the Accounting Referee will not consider any that do not so match); and (B) reasonable access to the books and records of Purchaser and the BusinessCompany, including any work papers or other schedules prepared by such Party’s accountants (subject to compliance with such Party’s accountants’ customary procedures for release) relating to the preparation of the Preliminary Statement and the Notice of Disagreement. (iii) The Accounting Referee’s engagement will be limited to (A) reviewing the Preliminary Statement and the remaining disputed matters that were set forth in the Notice of Disagreement pursuant to Section 2.3(b)(ii) and that remain in dispute (the “Unresolved Matters”); (B) determining (1) whether, for the calculation of the Closing Adjustment, Closing Net Working Capital, the Phase II Cap Ex Amount, Outstanding Indebtedness, the Change of Control Payment Seller Unpaid Transaction Expenses Amount, the Seller Transaction Bonus Amount and Cash, as the case may be, such calculation was prepared in accordance with the terms of this Agreement (including the Company Accounting Principles and Net Working Capital Principles, as applicable), and only with respect to the Unresolved Matters, whether and to what extent the Preliminary Statement requires adjustment and (2) whether there were mathematical errors in the Preliminary Statement; (C) preparing the Final Statement, which will include those amounts in the Preliminary Statement accepted by Parent pursuant to Section 2.3(b)(ii)Purchaser, those adjustments otherwise agreed to in writing by Purchaser and Parent the Company pursuant to Section 2.3(c1.5(c), and a final determination of the Unresolved Matters set forth in the Notice of Disagreement; and (D) calculating the Closing Adjustment. In completing its engagement, the Accounting Referee shall act solely as an arbitrator and not as an expert. With respect to each Unresolved Matter, the Accounting Referee’s determination, if not in accordance with the position of Parent the Company or Purchaser, will not be in excess of the higher, or less than the lower, of the amounts advocated by Parent the Company or Purchaser with respect thereto. The fees and expenses of the Accounting Referee, with respect to its engagement under this Section 2.3(d1.5(d), will be borne by Parent the Monetizing Sponsors (and paid out of the Adjustment Escrow Account) and Purchaser in inverse proportion as they may prevail on matters resolved by the Accounting Referee, which proportionate allocations will also be determined by the Accounting Referee at the time the determination of the Accounting Referee is rendered on the Final Statement and the Closing Adjustment. (iv) The Parties will instruct the Accounting Referee to (A) complete its preparation of the Final Statement and the Closing Adjustment within 25 days Business Days from the date of submission of the disputed adjustments to the Accounting Referee pursuant to this Section 2.3(d)(ii1.5(d) and (B) deliver promptly thereafter a copy of the Final Statement and the Closing Adjustment to Parent the Company and Purchaser, together with a report setting forth each disputed adjustment and the Accounting Referee’s determination with respect thereto. The Absent manifest error, the Accounting Referee’s determination will be conclusive and binding upon the Parties and may be entered and enforced in any court of competent jurisdiction.