Common use of Resolution of Dispute Clause in Contracts

Resolution of Dispute. In the event that Sellers and Buyer are unable to resolve in writing any of Buyer’s objections in the Notice of Objection within the thirty (30)-day period (or such longer period as may be agreed by Buyer and Sellers) following the delivery of a Notice of Objection, the resolution of all unresolved items (“Disputed Items”) shall be submitted to KPMG LLP (or such other independent accounting firm of recognized national standing in the United States as may be mutually selected by Buyer and Sellers that is not otherwise engaged by the Parties or their Affiliates) (such accounting firm, the “Accounting Firm”) to resolve any remaining disagreements. Buyer and Sellers shall promptly (but in any event within ten (10) Business Days) following the formal engagement of the Accounting Firm, provide the Accounting Firm (copying the other upon submission) with a written presentation setting forth their respective calculations of and assertions regarding the Disputed Items and shall allow the Accounting Firm to conduct an independent analysis and audit of the Disputed Items using GAAP and the Example Net Working Capital Statement and taking into account the definition of that term herein (and any other defined terms incorporated therein), and based solely on the documentation submitted by, and the presentations made by, each of the Parties. The Accounting Firm shall be instructed to render its written determination with respect to such Disputed Items as soon as reasonably practicable (which the Parties agree shall not be later than thirty (30) days following the formal engagement of the Accounting Firm), and shall be within the range of dispute between Buyer and Sellers. The Parties agree that the purpose of the adjustment contemplated by this Section 2.07 is to measure the amount of Net Working Capital as of 12:01 a.m. Eastern Time on the Closing Date using GAAP applied consistently with the principles used in the preparation of the Unaudited Financial Statements and the Example Net Working Capital Statement and taking into account the definition of that term herein (and any other defined terms incorporated therein). The determination of the Accounting Firm, acting as an expert and not an arbitrator, with respect to any such disagreements shall be binding and final for purposes of this Agreement. The term “Final NWC Statement” as used in this Agreement shall mean the NWC Statement that is deemed final in accordance with Section 2.07(c) or the NWC Statement resulting from the determinations made by the Accounting Firm in accordance with this Section 2.07(d), as applicable.

Resolution of Dispute. In the event that the Sellers and the Buyer are unable to resolve in writing any of the Buyer’s objections in the Notice of Objection within the thirty (30)-day period (or such longer period as may be agreed by the Buyer and the Sellers) following the delivery of a Notice of Objection, the resolution of all unresolved items (“Disputed Items”) shall be submitted to KPMG Ernst & Young LLP (or such other independent accounting firm of recognized national standing in the United States as may be mutually selected by the Buyer and Sellers that is not otherwise engaged by the Parties or their AffiliatesSellers) (such accounting firm, the “Accounting Firm”) to resolve any remaining disagreements. , provided, however, that if Ernst & Young LLP would not have a substantial conflict at the time of its appointment due to one or more accounting relationships with the Buyer or the Sellers, the Buyer and the Sellers shall mutually select an alternative independent accounting firm of recognized national standing in the United States. The Buyer shall execute any agreement reasonably required by the Accounting Firm for its engagement hereunder. The Sellers shall, promptly (but in any event within ten (10) Business Days) following the formal engagement of the Accounting Firm, provide the Accounting Firm (copying the other upon submission) with a written presentation setting forth their respective its calculations of and assertions regarding the Disputed Items and shall allow the Accounting Firm to conduct an independent analysis and audit of the Disputed Items using GAAP the Agreed Accounting Principles and the Example Net Working Capital Statement and taking into account the definition of that term herein (and any other defined terms incorporated therein), and based solely on the documentation submitted by, and the presentations made by, each of the Parties. The Accounting Firm shall be instructed to render its written determination with respect to such Disputed Items as soon as reasonably practicable (which the Parties agree shall not be later than thirty forty-five (3045) days following the formal engagement of the Accounting Firm), and shall be within the range of dispute between Buyer and Sellers. The Parties agree that the purpose of the adjustment contemplated by this Section 2.07 2.5 is to measure the amount of Net Working Capital as of 12:01 a.m. Eastern Time on the Closing Date using GAAP applied consistently with the principles used in the preparation of the Unaudited Financial Statements Agreed Accounting Principles and the Example Net Working Capital Statement and taking into account the definition of that term herein (and any other defined terms incorporated therein). The determination of the Accounting Firm, acting as an expert and not an arbitrator, with respect to any such disagreements shall be binding and final for purposes of this Agreement. The term “Final NWC Statement” as used in this Agreement shall mean the NWC Statement that is deemed final in accordance with Section 2.07(c2.5(c) or the NWC Statement resulting from the determinations made by the Accounting Firm in accordance with this Section 2.07(d2.5(d), as applicable. The term “Final Purchase Price” as used in this Agreement shall mean the Purchase Price plus the Net Working Capital (which may be a negative number) set forth in the Final NWC Statement.

Resolution of Dispute. In the event that Sellers As promptly as possible, and Buyer are unable to resolve in writing any of Buyer’s objections in the Notice of Objection within the thirty (30)-day period (or such longer period as may be agreed by Buyer and Sellers) following the delivery of a Notice of Objection, the resolution of all unresolved items (“Disputed Items”) shall be submitted to KPMG LLP (or such other independent accounting firm of recognized national standing in the United States as may be mutually selected by Buyer and Sellers that is not otherwise engaged by the Parties or their Affiliates) (such accounting firm, the “Accounting Firm”) to resolve any remaining disagreements. Buyer and Sellers shall promptly (but in any event within thirty (30) calendar days after the date of its appointment, the Arbitrating Accountant will render its decision on the Net Working Capital Dispute in writing to the Purchaser and the Owner, reflecting its decision with respect to each disputed Net Working Capital item and calculation. In rendering its decision, the Arbitrating Accountant may not assign a value to any item that exceeds the greater of the value asserted in good faith by the Purchaser and the value asserted in good faith by the Owner or that is less than the lesser of the value asserted in good faith by the Purchaser and the value asserted in good faith by the Owner. The Arbitrating Accountant’s determination may not be based on its independent review, but solely on presentations by the Purchaser and the Owner or their respective representatives. The Arbitrating Accountant’s calculation of the Net Working Capital will, except in the event of fraud or to the extent of any mathematical error, be final and bind the Parties and judgment may be entered on the award. The costs and fees related to such determination by the Arbitrating Accountant, including the costs relating to any negotiations with the Arbitrating Accountant with respect to the terms and conditions of such Arbitrating Accountant’s engagement, will be paid by the Purchaser and the Sellers on an inversely proportional basis, based upon the relative portions of the Net Working Capital Dispute that have been submitted to the Arbitrating Accountant for resolution that ultimately are awarded in favor of the Purchaser and the Seller Parties (e.g., if $100,000 is in dispute, and of that amount the Arbitrating Accountant awards $75,000 in favor of the Purchaser and $25,000 in favor of the Seller Parties, then the Purchaser will be responsible for 25%, and the Seller Parties, 75%, of the costs and fees). The Parties will otherwise pay their own respective expenses. (d) Adjustments to the Cash Consideration. Within five (5) Business Days after final determination of the Closing Net Working Capital in accordance with this Agreement, the Cash Consideration will be adjusted as follows: (i) if the Estimated Net Working Capital, as finally determined, is less than the Closing Net Working Capital (the amount of such deficit, a “Net Working Capital Shortfall”), Seller Parties will be jointly and severally liable to the Purchaser for the amount of the Net Working Capital Shortfall in excess of any set off amounts, to be paid to the Purchaser within three (3) Business Days of the final determination of the Closing Net Working Capital by a wire transfer of immediately available funds; provided, that if the Purchaser elects to pay the Cash Consideration in Equity Consideration Shares pursuant to Section 1.5(d), then payment of the Net Working Capital Shortfall to Purchaser shall first be satisfied by reducing (not below zero) any Retained Collared Equity Shares owed to Seller Parties by the dollar amount equal to the Net Working Capital Shortfall, with any remaining shortfall amount due to be paid in cash, provided that the Seller Parties shall not be required to pay any such remaining Net Working Capital Shortfall until the Seller Parties have had a reasonable opportunity to sell a portion of the Equity Consideration Shares pursuant to an effective registration statement registering for resale the Registrable Securities or Rule 144 in an amount equal to the lesser of (i) an amount sufficient to cover such remainder and (ii) all remaining Equity Consideration Shares then held by Seller Parties at the time the Net Working Capital Shortfall is determined. Purchaser acknowledges that a “reasonably opportunity”, as used in the immediately preceding sentence, will not be less than ten (10) Business Days) following Days after the formal engagement final determination of the Accounting Firm, provide the Accounting Firm (copying the other upon submission) with a written presentation setting forth their respective calculations of and assertions regarding the Disputed Items and shall allow the Accounting Firm to conduct an independent analysis and audit of the Disputed Items using GAAP and the Example Closing Net Working Capital. Any Net Working Capital Statement and taking into account the definition of that term herein (and any other defined terms incorporated therein), and based solely on the documentation submitted by, and the presentations made by, each of the Parties. The Accounting Firm Shortfall shall be instructed reduced by any amounts owed to render its written determination with respect Sellers but unpaid pursuant to such Disputed Items as soon as reasonably practicable (which the Parties agree shall not be later than thirty (30) days following the formal engagement of the Accounting FirmSection 1.5(c), and shall be within the range of dispute between Buyer and Sellers. The Parties agree that the purpose of the adjustment contemplated by this Section 2.07 is to measure the amount of Net Working Capital as of 12:01 a.m. Eastern Time on the Closing Date using GAAP applied consistently with the principles used in the preparation of the Unaudited Financial Statements and the Example Net Working Capital Statement and taking into account the definition of that term herein (and any other defined terms incorporated therein). The determination of the Accounting Firm, acting as an expert and not an arbitrator, with respect to any such disagreements shall be binding and final for purposes of this Agreement. The term “Final NWC Statement” as used in this Agreement shall mean the NWC Statement that is deemed final in accordance with Section 2.07(c) or the NWC Statement resulting from the determinations made by the Accounting Firm in accordance with this Section 2.07(d), as applicable.

Resolution of Dispute. In If Seller disputes Purchaser’s calculation of the event that Sellers and Buyer are unable to resolve Earn-Out, Seller shall so notify Purchaser in writing any of Buyer’s objections in the Notice of Objection within the thirty (30)-day period (or such longer period as may be agreed by Buyer and Sellers) following the delivery of a Notice of Objection, the resolution of all unresolved items (“Disputed Items”) shall be submitted to KPMG LLP (or such other independent accounting firm of recognized national standing in the United States as may be mutually selected by Buyer and Sellers that is not otherwise engaged by the Parties or their Affiliates) (such accounting firm, the “Accounting Firm”) to resolve any remaining disagreements. Buyer and Sellers shall promptly (but in any event within ten (10) Business Days) following the formal engagement of the Accounting Firm, provide the Accounting Firm (copying the other upon submission) with a written presentation setting forth their respective calculations of and assertions regarding the Disputed Items and shall allow the Accounting Firm to conduct an independent analysis and audit of the Disputed Items using GAAP and the Example Net Working Capital Statement and taking into account the definition of that term herein (and any other defined terms incorporated therein), and based solely on the documentation submitted by, and the presentations made by, each of the Parties. The Accounting Firm shall be instructed to render its written determination with respect to such Disputed Items as soon as reasonably practicable (which the Parties agree shall not be later than thirty (30) days following the formal engagement after receipt of the Accounting Firm)written calculation referred to in Section 2, and shall be within promptly submit Seller’s calculation of the range of dispute between Buyer and SellersEarn-Out. The Parties agree that shall then make a good faith effort to meet and resolve the purpose difference between Seller’s calculation and Purchaser’s calculation. If within 30 days after receipt of Seller’s calculation the Parties have been unable to reach agreement, the Parties within 15 days thereafter shall jointly select an independent certified public accounting firm, or if they are unable to do so, within 20 days thereafter either Party shall request the American Arbitration Association to designate a firm of independent certified public accountants, having no past or current affiliation with Seller, Seller’s Affiliates, Purchaser, or Purchaser’s Affiliates (such selected accounting firm being referred to herein as the “Arbitrator”), to determine whether Seller’s or Purchaser’s calculation is most accurate. The Arbitrator shall certify this decision in writing to the Parties, and shall have no choice but to select either the Seller’s calculation in its entirety or the Purchaser’s calculation in its entirety. The Arbitrator’s determination shall be final and binding on the parties. The fees, costs, and expenses of the adjustment contemplated by this Section 2.07 is to measure the amount of Net Working Capital as of 12:01 a.m. Eastern Time on the Closing Date using GAAP applied consistently with the principles used in the preparation of the Unaudited Financial Statements and the Example Net Working Capital Statement and taking into account the definition of that term herein (and Arbitrator, including any other defined terms incorporated therein). The determination of the Accounting Firmattorneys’ fees related thereto, acting as an expert and not an arbitrator, with respect to any such disagreements shall be binding and final for purposes borne by the non-prevailing Party. If Seller’s calculation prevails, the Earn-Out amount that should have been paid shall bear interest at the annual rate of this Agreement. The term “Final NWC Statement” as used in this Agreement shall mean the NWC Statement that is deemed final in accordance with Section 2.07(csix (6%) or the NWC Statement resulting from the determinations made by date the Accounting Firm in accordance with this Seller’s written calculation was due under Section 2.07(d), as applicable2 until paid.

Resolution of Dispute. In If the event that Sellers Buyer and Buyer the Seller are unable to resolve in writing any of Buyer’s objections in the Notice of Objection disagreement as to any Disputed Earn-Out Item within the thirty (30)-day period (or such longer period as may be agreed by Buyer and Sellers) following the delivery of a Notice of Objection, the resolution of all unresolved items (“Disputed Items”) shall be submitted to KPMG LLP (or such other independent accounting firm of recognized national standing in the United States as may be mutually selected by Buyer and Sellers that is not otherwise engaged by the Parties or their Affiliates) (such accounting firm, the “Accounting Firm”) to resolve any remaining disagreements. Buyer and Sellers shall promptly (but in any event within ten (10) Business Days) following the formal engagement of the Accounting Firm, provide the Accounting Firm (copying the other upon submission) with a written presentation setting forth their respective calculations of and assertions regarding the Disputed Items and shall allow the Accounting Firm to conduct an independent analysis and audit of the Disputed Items using GAAP and the Example Net Working Capital Statement and taking into account the definition of that term herein (and any other defined terms incorporated therein), and based solely on the documentation submitted by, and the presentations made by, each of the Parties. The Accounting Firm shall be instructed to render its written determination with respect to such Disputed Items as soon as reasonably practicable (which the Parties agree shall not be later than thirty (30) 45 days following the formal engagement Buyer’s receipt of an Earn-Out Objection Statement, then the Accounting Firm)amounts in dispute will be referred to the Settlement Accountant. The Seller and the Buyer shall instruct the Settlement Accountant to reach a determination as to the disputed matters not more than 45 days after such referral. Within 15 Business Days following such referral, and shall be within the range of dispute between Buyer and Sellers. The Parties agree the Seller shall submit to the Settlement Accountant (and the other Party) documentary materials and analyses that the purpose of Buyer or the adjustment contemplated by this Section 2.07 is Seller, as the case may be, believes support its respective position relating to measure the amount of Net Working Capital as of 12:01 a.m. Eastern Time on the Closing Date using GAAP applied consistently with the principles used in the preparation of the Unaudited Financial Statements and the Example Net Working Capital Statement and taking into account the definition of that term herein (and any other defined terms incorporated therein)Disputed Earn-Out Items. The determination of the Accounting Firm, acting as an expert and not an arbitrator, with respect to any such disagreements Settlement Accountant shall be final and binding and final for purposes of this AgreementSection 2.7 and shall not be subject to further review, challenge or adjustment, absent intentional and knowing fraud. Nothing herein, however, shall be construed to authorize or permit the Settlement Accountant to resolve any dispute by making an adjustment to an Earn-Out Payment that is outside of the issues or range proposed by the Buyer and the Seller. In the event the Settlement Accountant agrees entirely with either the Buyer or the Seller, then the nonprevailing party shall be responsible for all of the fees and expenses of the Settlement Accountant (and in such case the nonprevailing promptly shall promptly (A) pay to the Settlement Accountant all such fees and expenses then due and owing and (B) if applicable, reimburse the prevailing party for any portion of such fees and expenses already paid by the prevailing party); otherwise, fees and expenses of the Settlement Accountant shall be split proportionally, as determined by the Settlement Accountant, between the Buyer and the Seller based on the difference (when compared to each other) between each Party’s calculation and the final resolution by the Settlement Accountant (and each party shall promptly pay to the Settlement Accountant such party’s proportionate share of such fees and expenses then due and owing). The term “Final NWC Earn-Out Statement,” as used in this Agreement Agreement, shall mean a definitive Earn-Out Statement accepted (or deemed accepted) by the NWC Statement that is deemed final Seller or agreed to by the Seller and the Buyer in accordance with Section 2.07(c2.7(b)(ii) or the NWC a definitive Earn-Out Statement resulting from the determinations made by the Accounting Firm Settlement Accountant in accordance with this Section 2.07(d2.7(b)(iii) (in addition to those items theretofore accepted by the Seller or agreed to by the Seller and the Buyer), as applicable.